People v. Kelson

2024 IL App (4th) 231108-U

Opinion

NOTICE 2024 IL App (4th) 231108-U This Order was filed under FILED Supreme Court Rule 23 and is NO. 4-23-1108 January 8, 2024 not precedent except in the Carla Bender limited circumstances allowed IN THE APPELLATE COURT th 4 District Appellate under Rule 23(e)(1). Court, IL OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County JORDAN M. KELSON, ) No. 23CF1015 Defendant-Appellant. ) ) Honorable ) Scott Kording, ) Judge Presiding.

JUSTICE CAVANAGH delivered the judgment of the court. Justices Lannerd and Knecht concurred in the judgment.

ORDER ¶1 Held: By granting the State’s petition to deny pretrial release, the circuit court did not abuse its discretion.

¶2 After defendant, Jordan M. Kelson, was arrested for domestic battery, the State

charged him with that offense and petitioned to keep him in pretrial detention. After a hearing, the

circuit court of McLean County granted the petition. Defendant appeals. We find no abuse of

discretion in the denial of pretrial release. Therefore, we affirm the court’s judgment.

¶3 I. BACKGROUND

¶4 On October 3, 2023, defendant was charged by information. The same day, a

motion by the State to deny pretrial detention and a detention order were filed.

¶5 In the information, the State charged defendant with one count of domestic battery,

a subsequent offense. See 720 ILCS 5/12-3.2(a)(1) (West 2022). The information alleged that, on October 1, 2023, he injured a family member, Tyler Kelson (Tyler), by striking her with a cup.

The information added that previously, in Crow Wing County, Minnesota, district court case No.

18-CR-15-3633, defendant was convicted of a substantially similar offense, domestic assault, and

that, consequently, the present offense was a Class 4 felony. See id. § 12-3.2(b). Having been

arrested on the present charge, defendant was confined in the McLean County jail.

¶6 Pursuant to article 110 of the Code of Criminal Procedure of 1963 (Code) (725

ILCS 5/art. 110 (West 2022)), as amended by Public Act 101-652 (eff. Jan. 1, 2023), commonly

known as the Pretrial Fairness Act, the State petitioned for the denial of pretrial release. The

petition claimed that, under section 110-6.1(a)(4) of the Code (725 ILCS 5/110-6.1(a)(4) (West

2022)), defendant was eligible for pretrial detention. For two reasons, according to the petition,

granting him pretrial release would be hazardous. First, under the “specific articulable facts of the

case,” the pretrial release of defendant would “pose[ ] a real and present threat to the safety of any

person or persons or the community.” See id. § 110-6.1(e)(2). Second, the pretrial release of

defendant would “pose[ ] a real and present threat to the safety of a victim of the alleged offense[,]

and denial of pretrial release [was] necessary to prevent fulfillment of the threat upon which the

charge is based.” See id. § 110-6.1(a)(2).

¶7 On October 3, 2023, the parties appeared for a hearing on the State’s petition. The

hearing began with the question of whether there was probable cause to believe that defendant had

committed the charged offense of domestic battery. The prosecutor claimed that there was

probable cause. In support of that claim, he made the following representations. Defendant and

Tyler were married, and they lived together. On October 1, 2023, in their residence, they had an

argument in which defendant asserted that Tyler’s pregnancy was by another man. As Tyler was

sitting on a chair in their living room, defendant threw a cup of apple juice and ice at her, and the

-2- cup struck her in the face, inflicting a cut on her eyebrow. (Later, a police officer saw a fresh cut

on Tyler’s eyebrow.) The next morning, defendant was driving to work, and Tyler was in the car

with him. During this drive, he almost got into a vehicular accident three times. Tyler demanded

that he let her out of the car, but he refused to let her out. After defendant arrived at work, Tyler

called the police, and police officers went to defendant’s place of employment to speak with him.

In his conversation with the police, defendant denied throwing a cup at Tyler. He admitted,

however, that, during the car drive, he told Tyler, “ ‘Agree to tell everyone the truth, or I’ll kill us

both,’ ” and that he warned her he would “ ‘drive the car off a cliff.’ ” Defendant had a previous

conviction of domestic assault in Minnesota, in Crow Wing County district court case No. 18-CR-

15-3633. The prosecutor, however, did not know if Tyler was the victim in the Minnesota case.

On the basis of this factual recitation, the circuit court found probable cause to detain defendant.

¶8 The next issue was whether defendant should be denied pretrial release on the

ground of dangerousness, as the State urged in its petition. The attorneys agreed that, under section

110-6.1(a)(4) of the Code (id. § 110-6.1(a)(4)), the charged offense was a detention-eligible

offense. The attorneys said they were ready to proceed with an immediate detention hearing. Tyler

had received notice of the hearing, but she did not appear. The circuit court allowed the parties to

proceed by way of proffer. The prosecutor proffered the probable-cause statement he had just made

to the court. In addition, the prosecutor informed the court that the day before, on October 2, 2023,

Tyler obtained an emergency order of protection against defendant and that on October 20, 2023,

a hearing would be held to decide whether a plenary order of protection should be issued against

defendant.

¶9 Defense counsel proffered that defendant had a local residence in Bloomington,

Illinois, and that defendant could live in Bloomington and not be near Tyler. Also, defense counsel

-3- informed the court that defendant and Tyler had two children together, for whom defendant paid

child support out of the earnings from his job, and that Tyler’s earnings were insufficient to support

herself and the children. According to defense counsel, defendant was willing to abide by even the

strictest of pretrial release conditions, including an ankle monitor.

¶ 10 The parties had no objection to the circuit court’s consideration of a public safety

assessment, which contained the following conclusions. On a “New Criminal Activity Scale” of

one to six, defendant scored four. On a “Failure to Appear” scale of one to six, he scored two. The

“VIOLENCE FLAG [was] present.” If defendant were released, there should be “MAXIMUM

CONDITIONS.”

¶ 11 At the conclusion of the evidence, the prosecutor argued that because defendant

had inflicted bodily harm on Tyler in the present case, because he had a history of domestic

violence, and because he made death threats in the car and had reinforced the threats by almost

getting into a vehicle accident three times, Tyler would be safe only if defendant were kept in

pretrial detention.

¶ 12 Defense counsel disputed that pretrial detention was necessary. He represented that

defendant would submit to an ankle monitor, a secure continuous remote alcohol monitoring

(SCRAM) device if alcohol were a problem (although, so early in the case, defense counsel did

not know yet if defendant had a drinking problem), and even house arrest. Defendant was willing

to submit to any condition of pretrial release so that he would be allowed to continue working and

supporting his family members—even if he were forbidden to see them and were required to

communicate with them through an intermediary.

¶ 13 After the attorneys made their arguments, the circuit court found that defendant was

charged with a detention-eligible offense and that he posed a real and present threat to Tyler. The

-4- court said it had taken into consideration defendant’s gainful employment and the family’s

dependence on his income. In the court’s view, however, that financial consideration was

“counterbalanced” by the risk that defendant would harm Tyler again. The court noted the severity

and duration of the present incident (a two-day altercation), and the court was “extra concerned”

about defendant’s prior conviction of domestic assault. Given defendant’s apparent “impulse

control” problem, the gravity of his threats, and his suicidal ideation, the court did not think it

would be possible to come up with conditions of release that would adequately mitigate the risk to

Tyler. The court perceived a “high likelihood that defendant would be obsessed” and that he would

not comply with conditions of pretrial release, especially considering that the two children would

make it difficult for him and Tyler to stay apart. Therefore, the court granted the State’s petition

to deny pretrial release.

¶ 14 In its detention order, entered on October 3, 2023, the circuit court found that

defendant “poses a real and significant danger to *** Tyler Kelson.” The court found that

defendant was “unlikely to comply with some or all pretrial release conditions that could be

imposed in this case.” The court found that “[n]o combination of available pretrial release

conditions would adequately mitigate the high risk of individual/community threats and/or

[defendant’s] failure to appear for court hearings in this case.” Next to “Other,” the court wrote,

“[Defendant] threatened to kill himself and Tyler Kelson. [Defendant]

threw [an] object at Tyler Kelson and caused injury. [Defendant] is potentially upset

with [the] alleged victim over paternity issues. [Defendant] would not allow Tyler

Kelson out of [the] automobile after driving dangerously to frighten [the] victim

and threatening to crash [the] automobile.”

-5- The order also noted defendant’s “prior domestic violence conviction.” Therefore, the court

ordered indefinite pretrial detention, pending trial.

¶ 15 This appeal followed.

¶ 16 II. ANALYSIS

¶ 17 Appellate defense counsel has notified us that she will not file a memorandum. We

turn, then, to the notice of appeal. In the notice-of-appeal form, under the heading “Denial or

Revocation of Pretrial Release,” defendant has checked three boxes.

¶ 18 The first box he has checked corresponds to the preprinted language, “The State

failed to meet its burden of proving by clear and convincing evidence that defendant poses a real

and present threat to the safety of any person or persons or the community, based on the specific,

articulable facts of the case.” See id. § 110-6.1(a)(1)-(7), (e)(2). The explanation lines in this

context are left blank, leaving us only with the assertion made by the preprinted language. Given

the record before us, this bare assertion is not rationally persuasive. We are unconvinced that the

circuit court abused its discretion by finding that the State had met its burden of proof on this issue.

See People v. Inman, 2023 IL App (4th) 230864, ¶ 10. We cannot say it is arbitrary, fanciful, or

unreasonable to conclude that defendant poses a real and present threat to Tyler’s safety,

considering that he injured her by throwing a cup at her and considering that, during the car ride

the next day, he threatened to kill her and himself and dramatized that threat by almost getting into

a vehicular accident three times. See id. The court could reasonably regard defendant’s fury as

more than fleeting. Arguably, it would have been unwise not to take defendant’s threat as seriously

as defendant evidently intended Tyler to take it.

¶ 19 Second, in the notice-of-appeal form, defendant has checked the box next to the

preprinted language “The State has failed to meet its burden of proving by clear and convincing

-6- evidence that no condition or combination of conditions can mitigate the real and present threat to

the safety of any person or persons or the community, based on the specific, articulable facts of

the case, or defendant’s willful flight.” See 725 ILCS 5/110-6.1(e)(3) (West 2022). The

explanation lines corresponding to this assertion are left blank. Likewise, this bare assertion fails

to persuade us that the circuit court abused its discretion. The effectiveness of pretrial release

conditions depends on the defendant’s deterrability, specifically, the extent to which the defendant

would be deterred by the potential penalties for violating the conditions. A reasonable person could

take the view that because defendant threatened to kill not only Tyler but also himself and because

defendant lent credibility to that threat by almost getting into a vehicular accident three times

during the drive to work, defendant likely would feel undeterred by the prospect of merely

incurring legal sanctions.

¶ 20 Third, defendant has checked the box next to the preprinted language, “The court

erred in its determination that no condition or combination of conditions would reasonably ensure

the appearance of defendant for later hearings or prevent defendant from being charged with a

subsequent felony or Class A misdemeanor.” This preprinted language is irrelevant because it

expresses what the State would have to prove for the revocation of pretrial release, not the denial

of pretrial release. See id. § 6(a). Nevertheless, under this preprinted language, defendant has

provided the following explanation:

“Further, the Court erred in as the totality of the circumstances and the limited

presentation of proffered testimony, and there were less restrictive means that could

have been ordered by the Court to mitigate any suspected threat to a specific person

or the community, such as the Defendant being placed on an ankle monitor,

SCRAM, devise and placed on pretrial supervision wherein the Defendant could

-7- undergo assessments for substance abuse or mental health and abide by any

treatment, and making conclusion of law not reasonably inferred by the evidence

presented during the hearing.”

¶ 21 This explanation provides examples of the “condition or combination of

conditions” that, allegedly, could “mitigate the real and present threat to the safety of any person

or persons or the community.” 725 ILCS 5/110-6.1(e)(4) (West 2022). As we have discussed,

however, the circuit court could reasonably regard these suggested conditions as inadequate

because, as the court put it, there was a “high likelihood that defendant would be obsessed” and

because, in the light of his suicidal ideation, he would be undeterrable. Arguably, a person who

has threatened to kill the victim and himself at the same time has, in his own thinking, nothing left

to lose, and legal penalties would be, for him, meaningless.

¶ 22 III. CONCLUSION

¶ 23 For the foregoing reasons, we affirm the circuit court’s judgment.

¶ 24 Affirmed.

-8-