People v. Luebke

2025 IL App (5th) 241208-U

• Court: Appellate Court of Illinois
• Decided: March 12, 2025
• Docket: 5-24-1208
• Status: Unpublished

Opinion

NOTICE 2025 IL App (5th) 241208-U NOTICE Decision filed 03/12/25. The This order was filed under text of this decision may be NO. 5-24-1208 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Coles County. ) v. ) No. 24-CF-5 ) MICHAEL LUEBKE, ) Honorable ) Brian L. Bower, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE SHOLAR delivered the judgment of the court. Justice Welch concurred in the judgment. Presiding Justice McHaney specially concurred.

ORDER

¶1 Held: Where trial counsel did not first raise the issue presented on appeal in defendant’s Rule 604(h)(2) motion for relief, the issue raised in defendant’s Rule 604(h)(7) memoranda is waived. Ill. S. Ct. R. 604(h)(7) (eff. Apr. 15, 2024).

¶2 Defendant, Michael Luebke, was granted pretrial release, with pertinent conditions being

that he was subject to home confinement with limited exceptions and subject to electronic

monitoring. On October 30, 2024, the State filed a verified petition for sanctions, alleging 28

violations of pretrial release in that defendant made unscheduled and prohibited movements from

July 29, 2024, through October 8, 2024, and asked that the circuit court sanction defendant for a

period not to exceed 30 days for each violation. The circuit court granted the State’s motion as to

23 of the violations and ordered defendant to serve six days in the Coles County jail on each

1 violation for a total of 138 days. The court denied defendant’s motion for relief filed pursuant to

Illinois Supreme Court Rule 604(h)(2). Ill. S. Ct. R. 604(h)(2) (eff. Apr. 15, 2024). Defendant

appeals under Rule 604(h), arguing that the 138-day jail sentence exceeds the maximum sanction

allowable under section 110-6(f)(2) of the Code of Criminal Procedure of 1963 (Code). 725 ILCS

5/110-6(f)(2) (West 2022) (“Sanctions for violations of pretrial release may include ***

imprisonment in the county jail for a period not exceeding 30 days.”). For the reasons that follow,

we affirm. 1

¶3 I. BACKGROUND

¶4 On January 3, 2024, the State charged defendant with possession of methamphetamine with

intent to deliver (count I), a Class X felony, in violation of section 55(a)(1) of the

Methamphetamine Control and Community Protection Act (720 ILCS 646/55(a)(1) (West 2022));

and two counts of unlawful possession of a weapon by a felon (counts II and III), a Class 3 felony,

in violation of section 24-1.1(a) of the Criminal Code of 2012 (720 ILCS 5/24-1.1(a) (West

2022)). On January 10, 2024, the State filed a petition to deny pretrial release pursuant to the Public

Act 101-652, § 10-255 (eff. Jan. 1, 2023), commonly known as the Pretrial Fairness Act (Act). 2

Rowe v. Raoul, 2023 IL 129248, ¶ 52. Following a hearing the next day, the State’s petition was

granted, and defendant was detained.

1 Pursuant to Illinois Supreme Court Rule 604(h)(8) (eff. Apr. 15, 2024), our decision in this case was due on or before February 18, 2025, absent a finding of good cause for extending the deadline. Based on the high volume of appeals under the Act currently under the court’s consideration, as well as the complexity of issues and the lack of precedential authority, we find there to be good cause for extending the deadline. 2 Public Act 101-652 (eff. Jan. 1, 2023), which amended article 110 of the Code (725 ILCS 5/art. 110 (West 2022)), has been referred to as the “Pretrial Fairness Act” and the “Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act”; however, neither title is official. Rowe v. Raoul, 2023 IL 129248, ¶ 4 & n.1. 2 ¶5 On April 25, 2024, defendant made an oral motion for pretrial release so that he could seek

treatment for a serious medical condition. The circuit court released defendant over the State’s

objection. As a condition of his release, defendant was subject to electronic monitoring and was to

remain at his home unless he was receiving medical care, treatment, or making court appearances.

These exceptions had to be requested in advance. Additionally, defendant was allowed free

movement for personal needs on Tuesdays and Thursdays from noon to 2 p.m.

¶6 On October 10, 2024, pursuant to section 110-6 of the Code (725 ILCS 5/110-6 (West

2022)), the State filed a verified petition alleging defendant violated the terms of pretrial release.

When a defendant violates a condition of pretrial release, section 110-6(f) of the Code allows the

court to sanction the defendant with a verbal or written admonishment, up to 30 days’

imprisonment in the county jail, or the modification of pretrial release conditions. Id. § 110-6(f).

Here, the State’s petition referred to a pretrial violation report dated August 9, 2024, that listed “a

multitude of unscheduled and prohibited movement violations” and asked the court to impose

sanctions of up to 30 days in the county jail for each violation. The violation report itself listed

multiple violations occurring from July 26, 2024, through August 8, 2024. Following a hearing on

October 15, 2024, the court imposed a sanction of 30 days’ detention, with day-for-day credit to

apply. The judge stated that he could only issue a single sanction since the State’s petition did not

allege each violation independently, but if the State had specified each violation in its petition,

then he could sanction defendant for up to 30 days for each violation.

¶7 On October 30, 2024, the State filed a second verified petition for sanctions. In this petition,

the State listed 28 individual violations of defendant’s pretrial release relating to “unscheduled and

3 prohibited movements.” The petition referenced a pretrial violation report, 3 filed October 9, 2024,

which listed possible violations occurring from July 29, 2024, through October 8, 2024. A hearing

on the State’s petition was held on November 4, 2024. The State struck five of the specified

violations, noting that defendant had already been sanctioned for three of the violations, and that

it had determined that two of the events were not violations. The State did not call any witnesses

and instead relied on the violation report filed on October 9, 2024. The State asked the court to

impose a sanction of 30 days for each of the 28 violations, for a total of 690 days. The court granted

the petition and ordered defendant to serve 6 days in the county jail for each violation, for a total

of 138 days. The court gave defendant day-for-day credit. Later that day, defendant filed a motion

for relief.

¶8 The court heard defendant’s motion for relief on November 7, 2024. Defendant’s motion

for relief contended that the State had not met its burden of proving, by clear and convincing

evidence, that (a) defendant committed an act that violated a term of his release, (b) defendant had

actual knowledge that his actions would violate a court order, (c) the violations of the court’s order

were willful, and (d) the violations were not caused by a lack of access to financial monetary

resources. The motion for relief did not claim that the court’s imposition of consecutive sanctions

of jail time was error. The court denied defendant’s motion.

¶9 On November 8, 2024, defendant filed a timely notice of appeal utilizing the Notice of

Pretrial Fairness Act Appeal 604(h) (Defendant as Appellant) standardized form provided by the

Illinois Supreme Court. Ill. S. Ct. R. 604(h)(2) (eff. Apr. 15, 2024). The template instructed

3 We note that the record does not contain this report. The record does contain an August 30, 2024, pretrial violations report and a pretrial progress report filed October 9, 2024. The former contains supporting documentation for violations occurring from August 9, 2024, through August 29, 2024; the latter contains conclusory statements of violations from July 29, 2024, through October 8, 2024, without supporting documentation. The violations alleged in the October 9, 2024, pretrial progress report track with the allegations in the State’s October 30, 2024, petition for sanctions. 4 defendant to check one of the three following options to describe the “nature of order appealed,”

namely an order (1) denying pretrial release, (2) revoking pretrial release, or (3) imposing

conditions of pretrial release. See Ill. S. Ct. Rs. Art. VI Forms Appendix R. 606(d). Defense

counsel checked none of boxes. Instead, he created his own box, which he checked and named:

“Imposing pretrial sanctions.” The Office of the State Appellate Defender was appointed to

represent defendant in this appeal and on December 31, 2024, filed a memorandum in support. On

January 21, 2025, the State filed a responsive memorandum.

¶ 10 II. ANALYSIS

¶ 11 On appeal, defendant argues that the circuit court’s order imposing sanctions in excess of

30 days in jail for violating conditions of his pretrial release is contrary to section 110-6(f)(2) of

the Code. That section provides that “[s]anctions for violations of pretrial release may include ***

imprisonment in the county jail for a period not exceeding 30 days.” 725 ILCS 5/110-6(f)(2) (West

2022). Although defendant has completed the incarceration imposed by the trial court, he argues

that this issue is not moot, because it is an issue of public importance and is capable of repetition,

yet evading review.

¶ 12 Additionally, defendant advances two theories in support of his contention that this court

has jurisdiction. Defendant argues this court has jurisdiction under Illinois Supreme Court Rule

604(h) (eff. Apr. 15, 2024). Defendant maintains that Rule 604(h)(1)(i), which provides that either

party may appeal “an order imposing conditions of pretrial release,” encompasses an order

imposing sanctions since the sanction is a condition defendant must meet to obtain pretrial release.

Defendant also argues that the sanctioning order is appealable under Rule 604(h)(1)(ii), because

the order temporarily revokes or denies pretrial release while defendant is serving the sanction.

Finally, defendant argues that jurisdiction is proper under Rule 604(h)(1)(iii) since the imposition

5 of the sanctions effectively denied defendant request for release without sanctions, and therefore

the court’s order was the equivalent to an “order denying pretrial release.”

¶ 13 In the alternative, likening the circuit court’s sanctions order to a finding of contempt,

defendant argues that the order imposing the 138-day sanction was a final and appealable order.

See In re Marriage of Ruchala, 208 Ill. App. 3d 971, 977 (1991) (“Given that the court imposed a

sanction on petitioner, it is our opinion that the contempt order in this case was final and

appealable.”). Defendant also notes that article VI, section 6 of the Illinois Constitution provides

that “[a]ppeals from final judgments of a Circuit Court are a matter of right.” Ill. Const. 1970, art.

VI, § 6. Notwithstanding the provisions of Rule 604(h), defendant contends that a court order

imposing sanctions is a final and appealable order and is like a contempt proceeding: although it

occurs within the context of another proceeding, “it is an original special proceeding, collateral to

and independent of, the case in which the contempt arises.” People ex rel. Scott v. Silverstein, 87

Ill. 2d 167, 181 (1981). Since “[t]here [was] nothing left to be done but enforce the judgment”

(id.), defendant maintains that this is not an appeal of an interlocutory order.

¶ 14 The State contends that this court does not have jurisdiction, arguing that the plain language

of Rule 604(h) only allows appeals under limited circumstances, none of which allow for an appeal

from an order imposing sanctions. In support of its argument, the State relies on People v. Boose,

2024 IL App (1st) 240031. In Boose, the defendant was on pretrial release and missed multiple

court dates. Id. ¶¶ 4-5. The State petitioned for sanctions pursuant to section 110-6(c) through (f)

of the Code. Id.; 725 ILCS 5/110-6(c)-(f) (West 2022). The trial court imposed a sanction of 30

days in the Cook County jail (id. ¶ 5), and while serving the sanction, the defendant petitioned the

trial court asking for day-for-day credit under the County Jail Good Behavior Allowance Act (730

ILCS 130/1 et seq. (West 2022)). Id. ¶ 6. Although neither party raised the issue of jurisdiction,

6 the Boose court noted that appellate courts have an independent duty to determine jurisdiction and

found that it did not have jurisdiction to hear the defendant’s appeal. Id. ¶¶ 10-11.

¶ 15 The Boose court noted the defendant purported to appeal under section 110-6.6(a) of the

Code (725 ILCS 5/110-6.6(a) (West 2022) (providing that appeals of pretrial release decisions

shall be governed by supreme court rules)) and Rule 604(h)(1)(iii) (permitting an appeal by a

defendant from an order denying pretrial release). 2024 IL App (1st) 240031, ¶ 13. The Boose

court found that the defendant could not rely on Rule 604(h)(1)(iii) as a basis for the appeal since

the defendant was never denied pretrial release and noted the fact that the defendant “was

sanctioned for violating a condition of pretrial release shows the opposite: She was on pretrial

release.” Id. ¶¶ 13-14. The Boose court also noted the defendant brought her petition for credit

under section 3 of the County Jail Good Behavior Allowance Act (730 ILCS 130/3 (West 2022))

and found that statute was not a provision identified as a possible source for an interlocutory appeal

under Rule 604(h). Id. ¶ 15. Accordingly, the Boose court dismissed the defendant’s appeal for

lack of jurisdiction. Id. ¶¶ 16-19.

¶ 16 Since the parties submitted their memorandum in this matter, the Second District issued an

opinion in People v. Seymore, 2025 IL App (2d) 240616. 4 In Seymore, the defendant violated the

terms of his pretrial release and was sanctioned with 30 days’ imprisonment in the county jail

without good-time credit. Id. ¶ 1. The trial court denied the defendant’s Rule 604(h)(2) motion for

relief, and the defendant appealed under Rule 604(h), arguing that he was entitled to day-for-day

credit under section 3 of the County Jail Good Behavior Allowance Act (730 ILCS 130/3 (West

2022)). Id. Relying on Rule 604(h) and the Boose decision, the State argued the appellate court

lacked jurisdiction. Id. ¶ 11. In rejecting the State’s claim and finding jurisdiction, the Seymore

4 The mandate in Seymore has been stayed pending a petition for leave to appeal. 7 court discussed the Boose decision at length. Id. ¶¶ 13-15. First, the Seymore court noted that the

Boose court did not analyze whether one of the other bases for an appeal under Rule 604(h) applied,

and noted that, by contrast, the Seymore defendant had argued “that the order sanctioning him to

imprisonment without good-time credit is of a nature that falls within more than one of Rule

604(h)’s enumerated categories.” Id. ¶ 15. The Seymore court found jurisdiction, finding that “the

sanctions order [imposing 30 days in the county jail] revoked pretrial release, modified the

conditions of release, and denied pretrial release, albeit temporarily.” Id.

¶ 17 Neither Boose nor Seymore provide a wholly satisfactory answer to the question of this

court’s jurisdiction. We share the Boose court’s concern that the imposition of a sanction imposed

for a violation of a condition of pretrial release does not appear to be a proper basis for an appeal

under Rule 604(h). We are mindful of the fact that allowing defendants to appeal from sanction

orders could lead to an overwhelming number of appeals that neither the legislature nor the Illinois

Supreme Court intended to have placed before the appellate court. At the same time, we find it

significant that the defendant in Boose was not without a remedy. As the Boose court noted, the

defendant could later seek relief through the application of Illinois Supreme Court Rule 472(a)(3)

and (c) (Ill. S. Ct. R. 472(a)(3), (c) (eff. May 17, 2019) (granting trial then appellate jurisdiction

to correct “[e]rrors in the calculation of presentence custody credit” first raised in a postjudgment

motion)). 2024 IL App (1st) 240031, ¶ 16.

¶ 18 The decision in Seymore, on the other hand, would seem to allow appeals to be made from

any order sanctioning a defendant for a violation of the conditions of pretrial release. While we

recognize that most issues raised in such an appeal would be required to get past the mootness

doctrine, we are still concerned about the potential burden that this would place on the courts. Part

of our concern with the instant case is that reading section 110-6(f)(2) as allowing the court to

8 impose consecutive sanctions of up to 30 days’ imprisonment in the county jail, an interpretation

shared by the circuit court and the State, permits the court to impose a de facto revocation of a

defendant’s pretrial release under circumstances where a revocation is not available as a matter of

law. The ability of the court to revoke previously granted pretrial release is limited to two

circumstances: (1) where the defendant has been “charged with a felony or Class A misdemeanor

that is alleged to have occurred during the defendant’s pretrial release” (725 ILCS 5/110-6(a)

(West 2022)), or (2) where the State files a subsequent petition for pretrial detention based upon

“new facts not known or obtainable at the time of the filing of the previous petition” (id. § 110-

6.1(d)(2)). See People v. Farris, 2024 IL App (5th) 240745, ¶ 46 (holding that noncriminal

violations of conditions of pretrial release cannot serve as the basis for a subsequent petition to

deny trial release).

¶ 19 In the instant case, the State asked the trial court to sanction defendant with 30 days’

imprisonment for each violation for a total of 690 days. That the court believed consecutive

sanctions of jail time to be appropriate is proven by the fact that the court actually imposed

consecutive sanctions for a total of 138 days’ incarceration in the Coles County jail. We believe

that such an interpretation of the statute allows for the imposition of sanctions to the point that the

court has granted a de facto revocation of defendant’s pretrial release. Unlike the defendant in

Boose, the defendant in this matter does not have an alternative remedy that he can pursue later.

For these reasons, we find that this court has jurisdiction under Rule 604(h)(1)(ii). Ill. S. Ct. R.

604(h)(1)(ii) (eff. Apr. 15, 2024). Failure to do so would mean that a defendant could find himself

serving sanctions in excess of a sentence that he could receive for the underlying criminal offense.

Such a result seems untenable.

9 ¶ 20 We find further support for our conclusion by considering that one of the sanctions a circuit

court can impose for violations of pretrial release is the modification of a defendant’s pretrial

conditions. 725 ILCS 5/110-6(f)(4) (West 2022). Such a modification would result in a court order

imposing conditions on a defendant’s pretrial release. Rule 604(h)(1)(i) specifically grants

defendants the right to appeal “from an order imposing conditions of pretrial release.” Ill. S. Ct. R.

604(h)(1)(i) (eff. Apr. 15, 2024). It seems incongruent that a defendant has the right to appeal the

conditions of his pretrial release while finding that this court lacks jurisdiction to hear an appeal

of a sanction that implicates liberty interests.

¶ 21 Next, we address the issue of mootness. Calculating that defendant would have completed

the jail sanction as of January 12, 2025, the State contends that the issue is moot. See In re Benny,

2017 IL 120133, ¶ 17 (an appeal is moot when intervening events have made it impossible to grant

effectual relief); People v. Tibbs, 2025 IL App (4th) 240378, ¶ 15 (where defendant had served his

90-day sentence, appellate court could not grant effectual relief, and appeal was moot (although

an exception applied)). Defendant contends that exceptions to the mootness doctrine apply. We

agree with defendant.

¶ 22 “[T]he public interest exception to the mootness doctrine permits review when the interests

involved are of the appropriate magnitude or immediacy.” Tibbs, 2025 IL App (4th) 240378, ¶ 16

(citing In re Shelby R., 2013 IL 114994, ¶ 16). “ ‘Application of this exception, which is narrowly

construed, requires a clear showing of each of the following criteria: (1) the question presented is

of a public nature; (2) an authoritative determination of the question is desirable for the future

guidance of public officers; and (3) the question is likely to recur.’ ” Id. (quoting Shelby R., 2013

IL 114994, ¶ 16).

10 ¶ 23 The question presented here is whether a defendant can be ordered to serve jail time in

excess of 30 days as a consequence of sanctions being imposed for violations of conditions of

pretrial release. Like the Seymore court, we believe a clear showing has been made that the issue

satisfies the public-interest exception to mootness “because it (1) presents a question of public

importance, i.e., identifying section 110-6(f) pretrial incarceration periods that comply with the

law and, hence, due process; (2) that will likely recur; and (3) our answer will guide public officers

in the performance of their duties.” Seymore, 2025 IL App (2d) 240616, ¶ 18. Additionally, we

believe this matter is subject to review under the mootness exception for issues capable of

repetition yet evading review. “The exception for issues capable of repetition yet evading review

has two elements: (1) the challenged action must be too short in duration to be fully litigated before

its end, and (2) there must be a reasonable expectation that the complaining party will be subject

to the same action again.” In re Craig H., 2022 IL 126256, ¶ 20. In this case, the first element is

met because the defendant’s 168-day incarceration was too brief to allow appellate review that

would allow this court to grant defendant effectual relief. Likewise, we believe the second element

is met since defendant’s history in this case alone establishes a reasonable expectation that he may

commit another violation of his pretrial conditions and therefore may be subject to future sanctions.

See Seymore, 2025 IL App (2d) 240616, ¶ 18 (citing Craig H., 2022 IL 126256, ¶ 20).

¶ 24 Having found that the issue presented falls within an exception to the mootness doctrine,

we next consider the State’s argument that defendant waived this issue by failing to raise the

imposition of consecutive sanctions in excess of 30 days’ incarceration in his motion for relief. In

support of its argument, the State points to Rule 604(h)(2) which states that, “[u]pon appeal, any

issue not raised in the motion for relief, other than errors occurring for the first time at the hearing

on the motion for relief, shall be deemed waived.” Ill. S. Ct. R. 604(h)(2) (eff. Apr. 15, 2024). As

11 noted above, defendant’s motion for relief simply challenged the State’s burden to prove the

factors found in section 110-6(e) of the Code. 725 ILCS 5/110-6(e) (West 2022). Defendant

acknowledges that defense counsel did not raise this issue in the trial court but urges this court to

review the issue under the second prong of plain error. Alternatively, defendant argues that defense

counsel was ineffective for failing to raise this issue in the trial court. In support of his claim that

this court can consider the issue under the plain-error doctrine, the defendant’s argument relies on

the concept of forfeiture as opposed to waiver.

¶ 25 In support of its argument that defendant waived this issue, the State relies on People v.

Nettles, 2024 IL App (4th) 240962. In Nettles, the defendant appealed the trial court’s denial of

his pretrial release. In so doing, the defendant raised issues on appeal that were not raised in the

trial court. Much like the case at hand, the Nettles defendant sought to avoid dismissal by arguing

that trial counsel’s failure to preserve those arguments amounts to ineffective assistance of counsel,

or alternatively, by invoking plain error. Id. ¶ 22.

¶ 26 Noting that Rule 604(h) directs that issues not raised in the motion for relief are waived,

the Nettles court discussed the distinction between the doctrines of “forfeiture” and “waiver,”

noting that “forfeiture is the failure to make the timely assertion of the right, waiver is the

intentional relinquishment or abandonment of a known right.” (Internal quotation marks omitted.)

Id. ¶ 29. This distinction is important due to the fact that courts can review forfeited arguments

under the plain-error doctrine, whereas a claim of error that has been waived need not be reviewed

for plain error. Id. (citing People v. Scott, 2015 IL (4th) 130222, ¶ 21, and United States v. Flores,

929 F.3d 443, 447 (7th Cir. 2019)).

12 ¶ 27 To the extent that there is ambiguity in the use of the word “waived,” the Nettles court also

discussed the changes to Rule 604 following the release of the report of the Illinois Supreme Court

Pretrial Release Appeal Task Force and the report itself:

“That report noted that ‘It would be helpful to all involved to have the rules regarding issue

preservation made explicit.’ Ill. S. Ct. Pretrial Release Appeals Task Force, Report and

Recommendations 7 (2024), https://ilcourtsaudio.blob.core.windows.net/antilles-

resources/resources/628434e3-d07f-4ead-b1f6-4470d7e83bf3/Pretrial%20Release%

20Appeals% 20Task% 20Force% 20Report_March% 202024.pdf [https://perma.cc/LL5Y-

R4FN]. The task force then proposed that, ‘[o]ther than errors occurring for the first time

at the hearing on the motion for relief, issues not raised in the motion will not be considered

on appeal,’ noting ‘that this leaves no room for alternative means of analysis such as plain

error review or a contention of ineffective assistance of trial counsel.’ (Internal quotation

marks omitted.) Id. The reasoning was ‘that an expedited, limited review of detention

decisions is designed in the first instance to be review of the trial court’s decision’ and it

was ‘unreasonable to expect this expedited process to carry the same weight and scope of

argument that is seen in a direct appeal following conviction.’ *** Id.” (Emphasis added.)

Id. ¶ 31.

For these reasons, Nettles concluded that plain-error review is incompatible with the language of

Rule 604(h). Id. ¶ 34.

¶ 28 In People v. Jackson, 2025 IL App (4th) 241411-U, the court found further support for the

decision in Nettles based upon the Illinois Supreme Court’s recent decision in People v. Ratliff,

2024 IL 129356. The Jackson court explained:

13 “[In Nettles,] [w]e noted that *** Rule 604(d)[’s] [similar language] had previously

been interpreted to find procedurally defaulted arguments had only been forfeited, despite

the explicit directive to deem the argument ‘waived.’ Ill. S. Ct. R. 604(d) (eff. Apr. 15,

2024). After our decision in Nettles, the Illinois Supreme Court issued its decision in

People v. Ratliff, 2024 IL 129356, ¶ 26, finding that ‘Rule 604(d) is unmistakably clear:

Any issue not raised in a posttrial motion is “waived” on appeal. Though forfeiture may be

a limitation on the parties, and not this court, we have never stated that the same is true of

waiver, and with good reason.’ The Ratliff court reaffirmed that Illinois Supreme Court

Rules are not mere suggestions (id. ¶ 27) and abandoned prior precedent finding that the

word waived really meant forfeited. Id. ¶ 23 n.2. The court refused to overlook the

defendant’s waiver under the auspice of plain error to reach the merits of his claim. Id.

¶ 28.” Jackson, 2025 IL App (4th) 241411-U, ¶ 18.

We agree with the analysis and the conclusions reached in Nettles and Jackson and find that Rule

604(h)(2) precludes the use of plain error.

¶ 29 We further find that even if plain error and ineffective assistance were applied, the claims

would fail under the facts of this case. The second prong of plain error allows a reviewing court to

consider a forfeited, but still clear and obvious error, when “that error is so serious that it affected

the fairness of the defendant’s trial and challenged the integrity of the judicial process.” People v.

Piatkowski, 225 Ill. 2d 551, 565 (2007) (citing People v. Herron, 215 Ill. 2d 167, 186-87 (2005)).

The Illinois Supreme Court has twice reviewed the standards governing the second prong of the

plain-error rule. See People v. Johnson, 2024 IL 130191; People v. Moon, 2022 IL 125959.

¶ 30 In People v. Johnson, 2024 IL 130191, the court noted that the plain-error rule is “a narrow

and limited exception to procedural default.” (Internal quotation marks omitted.) Id. ¶ 53. “[E]rrors

14 that are reviewable under the second prong of the plain error rule are rare.” Id. Like the defendant

in Johnson, defendant here “is asking this court to overlook his forfeiture and review the circuit

court’s error not only under a narrow and limited rule but also under the rarely applied second

prong of that narrow and limited rule.” Id. ¶ 54. We acknowledge that defendant has a fundamental

right to liberty. However, the fact that a forfeited error affected a substantial right does not

automatically grant plain-error review; rather it “merely satisfies the prerequisite that the error

must affect a substantial right before plain error review is even considered.” Id. ¶ 67. “ ‘Before

plain error can be considered as a means of circumventing the general waiver rule, it must be

plainly apparent from the record that an error affecting substantial rights was committed.’ ” Id.

(quoting People v. Precup, 73 Ill. 2d 7, 17 (1978)). “Once it is determined that the error affected a

substantial right, the reviewing court may then proceed in determining whether the error is

excusable ***.” Id. (citing People v. Heron, 215 Ill. 2d 167, 185 (2005)).

¶ 31 “The first step in a plain-error analysis is to determine whether a clear and obvious error

occurred. [Citation.] If a clear and obvious error occurred, we then consider whether either of the

two prongs of the plain-error doctrine has been satisfied.” (Emphases added.) People v. Henderson,

2017 IL App (3d) 150550, ¶ 37. The defendant bears the burden of persuasion in showing that a

clear and obvious error exists. We do not find that the alleged error is clear and obvious.

¶ 32 That there are different ways to interpret the language of section 110-6(f)(2)’s allowing

“[s]anctions for violations” to include “imprisonment in the county jail for a period not exceeding

30 days” is evidenced by the fact that apparently no one in the trial court considered that

consecutive terms as sanctions were inappropriate, owing to an apparent ambiguity in the statute.

Even before this court, both parties claim that the plain language of the statute supports their

positions.

15 ¶ 33 It is “unreasonable to expect this expedited [appeal] process to carry the same weight and

scope of argument that is seen in a direct appeal following conviction” (Ill. S. Ct. Pretrial Release

Appeals Task Force, Report and Recommendations 7), especially when the matter was not first

addressed in the trial court. Accordingly, we find that defendant failed to meet his burden of

establishing a clear and obvious error, and for this reason, a plain-error analysis is not appropriate.

Even if we found that Rule 604(h)(2) allowed this court to review this matter under the plain-error

doctrine, “[u]ltimately, undertaking plain-error review is discretionary. See Ill. S. Ct. R. 615 (eff.

Jan. 1, 1967) (‘Plain errors or defects affecting substantial rights may be noticed although they

were not brought to the attention of the trial court.’); People v. Clark, 2016 IL 118845, ¶ 42.”

Nettles, 2024 IL App (4th) 240962, ¶ 34. “Aside from finding such review incompatible with the

language of the rule, we are not presented with any compelling argument to engage in the

discretionary analysis in this appeal.” Id.

¶ 34 Defendant’s claim of ineffective assistance of counsel would likewise fail. Our review of

ineffective assistance of counsel claims is guided by the standards set forth in Strickland v.

Washington, 466 U.S. 668, 687 (1984), as adopted by our supreme court in People v. Albanese, 104

Ill. 2d 504, 526 (1984). To succeed on a claim of ineffective assistance of counsel under the

Strickland standard, one must show both that (1) counsel’s representation fell below an objective

standard of reasonableness (deficient performance prong) and ( 2 ) a reasonable

probability exists that, but for the error, the result would have been different (prejudice prong).

People v. Manning, 241 Ill. 2d 319, 326-27 (2011). A defendant must satisfy both prongs of the

Strickland test to succeed on a claim of ineffective assistance of counsel. People v. Evans, 209 Ill.

2d 194, 220 (2004). Thus, defendant’s failure to establish either deficient performance or prejudice

will be fatal to the claim. People v. Richardson, 189 Ill. 2d 401, 411 (2000).

16 ¶ 35 The Pretrial Fairness Act “dramatically changed the statutory framework for pretrial

release of criminal defendants in Illinois.” Rowe, 2023 IL 129248, ¶ 1. Implementing the law has

demonstrated complex issues with a lack of precedential authority to guide both the courts and

practitioners alike. Although we note the necessity of limiting the parties to 4,500 words in their

memoranda (Ill. S. Ct. R. 604(h)(7) (eff. Apr. 15, 2024)), defendant nonetheless fails to identify

how trial counsel’s performance was deficient, other than by stating that he should have raised the

issue in the trial court. We are reluctant to find that counsel’s performance was objectively

unreasonable under prevailing professional norms (People v. Moore, 2020 IL 124538, ¶ 28) for

failing to raise an issue of first impression. Accordingly, we find that defendant’s claim of

ineffective assistance of counsel fails under the facts of this case.

¶ 36 III. CONCLUSION

¶ 37 For the reasons stated, we conclude that this court has jurisdiction under Rule

604(h)(1)(iii). Ill. S. Ct. R. 604(h)(1)(iii) (eff. Apr. 15, 2024). We also find defendant has waived

any claim of error regarding the imposition of the sanctions ordered by the trial court. Finally, we

conclude that neither plain error nor ineffective assistance of counsel applies.

¶ 38 For the reasons stated, we affirm the trial court.

¶ 39 Affirmed.

¶ 40 PRESIDING JUSTICE McHANEY, specially concurring:

¶ 41 I agree with the majority that the trial court’s order should be affirmed. However, I write

separately since it is unnecessary to discuss mootness or the merits of the defendant’s argument

because there is no jurisdiction.

¶ 42 Rule 604(h) outlines appellate jurisdiction for appeals from orders under the Act as follows:

17 “(h) Appeals From Orders Imposing Conditions of Pretrial Release, Granting or Denying a Petition to Deny Pretrial Release, or Revoking or Refusing to Revoke Pretrial Release.

(1) Orders Appealable. An appeal may be taken to the Appellate Court from an interlocutory order of court entered under sections 110-5, 110-6, and 110-6.1 of the Code of Criminal Procedure of 1963 as follows:

(i) by the State and by the defendant from an order imposing conditions of pretrial release;

(ii) by the defendant from an order revoking pretrial release or by the State from an order denying a petition to revoke pretrial release;

(iii) by the defendant from an order denying pretrial release; or

(iv) by the State from an order denying a petition to deny pretrial release.” Ill. S. Ct. R. 604(h)(1) (eff. Apr. 15, 2024).

“Although a supreme court rule is not a statute enacted by the Illinois legislature, the interpretation

of a rule should follow the same guidelines as statutory interpretation ***.” Longstreet v. Cottrell,

Inc., 374 Ill. App. 3d 549, 552 (2007). Further, the words used in the supreme court rule are to “be

given their plain, ordinary, and popularly understood meanings.” Id.

¶ 43 The majority elects to discuss the merits of the defendant’s argument by referencing the

decision of the Second District’s opinion in People v. Seymore, 2025 IL App (2d) 240616. The

jurisdictional analysis in Seymore is flawed because once a sanction expires, the defendant remains

on pretrial release. I am also guided by the court’s opinion in People v. Boose, 2024 IL App (1st)

240031. There, the defendant argued on appeal that she should have been awarded sentence credit

for her 30-day sanction for violating a condition of her pretrial release. The court held that it did

not have jurisdiction, as the defendant was not appealing from one of the four specific scenarios

outlined in Rule 604(h). Boose, 2024 IL App (1st) 240031, ¶ 14. I refuse to join the majority by

manufacturing jurisdiction in an effort to “sally forth *** looking for wrongs to right.” Greenlaw

v. United States, 554 U.S. 237, 244 (2008).

18 ¶ 44 For the above reasons, I specially concur.