People v. Martinez

2024 IL App (1st) 240241-U

Opinion

2024 IL App (1st) 240241-U

FOURTH DIVISION Order filed: April 18, 2024

No. 1-24-0241B

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 23 CR 12204 ) ) LUIS MARTINEZ, ) Honorable ) Joanne F. Rosado, Defendant-Appellant. ) Judge, Presiding.

JUSTICE HOFFMAN delivered the judgment of the court. Presiding Justice Rochford concurred in the judgment. Justice Ocasio specially concurred in the judgment.

ORDER

¶1 Held: The circuit court abused its discretion in denying the defendant pretrial release where the circuit court’s findings that the State met its burden of proving by clear and convincing evidence that the defendant poses a real and present threat to the safety of the community is against the manifest weight of the evidence.

¶2 The defendant, Luis Martinez, appeals from the circuit court’s order of January 24, 2024,

denying him pretrial release pursuant to Public Act 101-652, § 10-255 (eff. Jan. 1, 2023). No. 1-24-0241B

Commonly known as the Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act (Act). 1

See Pub. Act 102-1104 , § 70 (eff. Jan. 1, 2023) . For the reasons which follow, we reverse the

order of the circuit court denying the defendant pretrial release.

¶3 On October 19, 2023, the defendant was arrested and charged with three counts of unlawful

possession/use of a weapon by a felon in violation of 720 ILCS 5/24-1.1(a) (West 2022) and two

counts of aggravated unlawful use of a weapon in violation of 720 ILCS 5/24-1.6(a)(1) (West

2022). On January 24, 2024, the State filed a petition seeking a pretrial detention hearing. A

hearing on the State’s petition was held on January 24, 2024, at which hearing the State made the

following proffer.

¶4 On October 19, 2024, Chicago police officers observed the defendant driving a car

eastbound on Augusta Boulevard. As the officers’ vehicle moved closer, they were able to see

that the defendant, the sole occupant in his vehicle, was not wearing a seatbelt. The officers

observed the defendant reaching into his waistband and appearing to manipulate an object as if

placing it underneath his leg. The officers curbed the defendant’s vehicle and asked him to step

out of the vehicle. He refused. As the defendant moved his hand toward the vehicle’s gear shift,

one of the officers reached into the vehicle and removed the key from the ignition. The officers

opened the defendant’s car door and escorted him out of the car. At that point, the officers saw a

nine-millimeter handgun on the seat where the defendant had been sitting. An examination of the

gun revealed that here was a live round in the chamber. A name check of the defendant revealed

1 The Act has been referred to as the “SAFE-T Act” or the “Pretrial Fairness Act.” Neither name is official, and neither appears in the Illinois Compiled Statures or the public act.

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that he did not have a firearm owners identification (FOID) card or a concealed carry license

(CCL).

¶5 The State informed the court that, at the time of his arrest, the defendant was on parole for

a 1996 conviction and 50-year sentence for murder. The State also informed the court that the

defendant had a 1996 conviction for unlawful possession of a handgun.

¶6 In response, the defendant’s attorney made the following proffer. The defendant is 44 years

old and a resident of Chicago. He lives with his mother, and his girlfriend is expecting a child.

For the past two years, the defendant has been working at Trio Logistics as a material handler and

forklift operator. The defendant received his GED and has associate degrees in liberal studies and

applied science. He also has a certification as a commercial custodian. Prior to his arrest, the

defendant was a volunteer at the Pilsen Food Pantry, and while he was in prison, he was a hospice

volunteer. The defendant’s prior convictions were for offenses committed when he was under 18

years of age. Defense counsel also stated that, from the officer’s body-worn video camera, the

defendant can be seen attempting to record the officers at the time he refused their command to

exit his vehicle. Further, defense counsel represented that the windows of the defendant’s vehicle

were tinted.

¶7 Following the detention hearing, the circuit court denied the defendant pretrial release. The

court found that the State had proven by clear and convincing evidence that proof is evident and

the presumption is great that the defendant committed the offenses of unlawful use of a weapon

by a felon. In its oral rulings, the court noted that, when the defendant’s vehicle was curbed, he

was seen making movements toward his leg, and when he was removed from the vehicle, a gun

was found exactly where the officers claimed that they saw movement. The trial judge also noted

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that, at the time of his arrest, the defendant was on parole for murder and had a prior gun-related

conviction. The court also found that the defendant poses a real and present threat to the safety of

any person or the community and that no condition or combination of conditions of pretrial release

can mitigate the real and present threat posed by the defendant. Specifically, the court found that

the defendant was the sole occupant of a vehicle stopped by the police and was seen making

movements toward his waistband, reaching toward his left leg, and placing an object under his leg.

When the defendant was removed from his vehicle, a gun was found on the driver’s seat. At the

time of his arrest, the defendant was on parole for murder. The circuit court ordered the defendant

detained and remanded him to the custody of the Cook County Sheriff pending trial.

¶8 On January 29, 2024, the defendant filed a notice of appeal from the circuit court’s January

24, 2024, order denying him pretrial release. In that notice of appeal, the defendant argued that:

1. The State failed to meet its burden of proving by clear and convincing evidence that the proof is evident, and the presumption is great that he committed the offenses charged. In support, the defendant asserted that he made no inculpatory statements, and as of the date of the detention hearing, there was no forensic evidence connecting him the recovered weapon. 2. The State failed to meet its burden of proving by clear and convincing evidence that he poses a real and present threat to the safety of any person or persons or the community. The defendant asserted that there are no allegations that, in this case, he used or threatened the use of force against any individual or that he injured any individual. He stated that the offense for which he is charged is nonviolent in nature, and the two prior convictions relied upon in support of the circuit court’s order were committed 28 years ago when the defendant was a minor. 3. The State failed to meet its burden of proving by clear and convincing evidence that no condition or combination of conditions can mitigate the real and present threat to the safety to any person or persons or the community based on the specific, articulable facts

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of the case, or defendant’s willful flight. In support, the defendant again asserted that there are no allegations that he used or threatened the use of force against any individual or that he injured any individual involved in this case. He has no recent history of bond forfeiture or escape attempts. He repeated the assertion that the offense for which he is charged is nonviolent in nature, and the two prior convictions relied upon in support of the circuit court’s order were committed 28 years ago when he was a minor. ¶9 The defendant has elected not to file a memorandum in support of his appeal and, on

February 24, 2024, filed a notice in lieu of a memorandum, stating that his notice of appeal

adequately communicates his contentions of error.

¶ 10 In considering this appeal, this court has reviewed the following documents which have

been submitted pursuant to Illinois Supreme Court Rule 604(h)(2) (eff. Sept. 18, 2023).

- The State’s petition for a pretrial detention hearing; - The circuit court’s order denying pretrial release; - The defendant’s supporting record; - The report of proceedings on January 24, 2024; - Defendant’s Notice of Appeal; and - The State’s response memorandum. ¶ 11 There is no doubt that the State established by clear and convincing evidence that the

defendant was a convicted felon at the time of his arrest and was in possession of a loaded handgun

in violation of 720 ILCS 5/24-1.1(a) (West 2022), a non-probationable, detainable offense. See

725 ILCS 5/110-6.1(a)(6)(O) (West 2022). We conclude, therefore, that the State met its burden

of proving by clear and convincing evidence that the proof is evident, and the presumption is great

that the defendant committed the offenses charged. The next question for review is whether the

State met its burden of proving by clear and convincing evidence that the defendant poses a real

and present threat to the safety the community,

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¶ 12 We are mindful of the fact that several judges in the Appellate Court believe that review

of a pretrial detention order should be de novo. See: People v. Lee, 2024 IL App (1st) 232137 ¶

21; People v. Saucedo, 2024 IL App (1st) 232020, ¶ 65 (Ellis, J., specially concurring). We

disagree. As was noted by the majority in Saucedo, the decision to grant or deny pretrial release

involves proof, or the absence thereof, of three propositions. The first two, whether the proof is

evident and the presumption is great that the defendant committed the offenses charged and that

the defendant poses a real and present threat to the safety of any person or persons or the

community, are questions of fact. Saucedo, 2024 IL App (1st) 232020, ¶¶ 31, 32. The manifest

weight standard applies to the review of factual determinations made by the trial judge. People v.

Finlaw, 2023 IL App (4th) 220797, ¶ 55. We believe the third proposition, that no condition or

combination of conditions can mitigate the real and present threat posed by the defendant, is a

matter committed to the discretion of the trial judge based on a weighing of several factors to arrive

at a decision that promotes principals of fundamental fairness and effective judicial administration.

Saucedo, 2024 IL App (1st) 232020, ¶ 36; People v. Reed, 2023 IL App (1st) 231834, ¶31.

¶ 13 The abuse of discretion standard of review was applied to circuit court decisions relating

to the setting of bond. People v. Simmons, 2019 IL App (1st) 191253, ¶ 9; People v. Johnson, 2019

IL App (3d) 190582, ¶ 8. We find no reason why the same standard of review should not apply to

the circuit court’s ultimate decision to either grant or deny pretrial release.

¶ 14 In this case, the defendant, a convicted felon on parole from a 50-year sentence for murder,

was apprehended in possession of a loaded handgun. However, there is no evidence that he

threatened anyone with the gun, or that, since being placed on parole, the defendant has engaged

in any threatening or violent behavior. The uncontradicted assertions of defense counsel

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established that the defendant has been employed by the same company for the past two years, he

lives with his mother, and was, prior to his arrest, a volunteer at a community food pantry. Nothing

other than the evidence supporting the charged offenses and the defendant’s status as a parolee

support the circuit court’s finding that the defendant poses a real and present threat to the safety of

t safety the community.

¶ 15 We are not suggesting that the evidence of the charged offense(s) in itself may not support

findings both that the defendant poses a real and present threat to the safety of the community and

that no condition or conditions of pretrial release could mitigate that danger. In an appropriate

case it may. What we are saying is that in this case evidence of the charged offenses and the

defendant’s status as a parolee are not sufficient, standing alone, to support a finding that the State

met its burden of proving by clear and convincing evidence that the defendant poses a real and

present threat to the safety of the community. He is charged with nonviolent offenses and there is

no evidence that since his release on parole the defendant has engaged in any threatening or violent

behavior. We conclude, therefore, that the circuit court’s finding that the State met its burden of

proving by clear and convincing evidence that the defendant poses a real and present threat to the

safety the community is against the manifest weight of the evidence because an opposite

conclusion from that reached by the circuit court is clearly apparent. See People v. Deleon, 227

Ill.2d 322, 332 (2008). It follows that, if the State failed to meet its burden of proving that the

defendant poses a real and present threat to the safety of the community, the circuit court’s denial

of pretrial release was an abuse of discretion.

Reversed and remanded.

¶ 17 JUSTICE OCASIO, specially concurring:

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¶ 18 I have joined my colleagues in the decision but write separately to advocate for a de novo

standard of review.

¶ 19 While my colleagues note that an “abuse of discretion” standard was previously applied to

circuit court decisions relating to the setting of bonds, that should not dictate our endorsement.

Justice David Ellis writes persuasively in favor of de novo review in considering pretrial detention.

See People v. Whitaker, 2024 IL App (1st) 232009 ¶¶ 79-138 (Ellis, J., concurring). As he explains,

de novo review is appropriate given the fundamental interest at stake:

“A pretrial detention order is fundamentally different from an order that grants release with

conditions, no matter how restrictive. Detention is an unconditional deprivation of the

accused’s ‘strong interest in [pretrial] liberty.’United States v. Salerno, 481 U.S. 739, 750,

107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). And while the right to pretrial liberty, and thus

release, is not absolute, make no mistake: the ‘traditional right to freedom before

conviction’ is a constitutional right, grounded in the constitutional presumption of

innocence. Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 96 L.Ed. 3 (1951); see Salerno, 481

U.S. at 755, 107 S.Ct. 2095 (‘In our society liberty is the norm, and detention prior to trial

or without trial is the carefully limited exception.’); United States v. O’Brien, 895 F.2d 810,

814 (1st Cir. 1990) (in determining pretrial release, ‘ “[a] crucial liberty interest is at stake.”

’) (quoting United States v. Delker, 757 F.2d 1390, 1399 (3d Cir. 1985)).” Id. ¶ 120.

For the above stated reasons, I respectfully suggest a de novo standard of review is best for

promoting the equitable administration of law.

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