People v. Mrowka

2024 IL App (2d) 240013-U

• Court: Appellate Court of Illinois
• Decided: March 26, 2024
• Docket: 2-24-0013
• Status: Unpublished

Opinion

2024 IL App (2d) 240013-U No. 2-24-0013 Order filed March 26, 2024

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of McHenry County. ) Plaintiff-Appellee, ) ) v. ) No. 23-CF-1109 ) ALAN J. MROWKA, ) Honorable ) Michael J. Chmiel, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court. Justices Hutchinson and Birkett concurred in the judgment.

ORDER

¶1 Held: The trial court abused its discretion in finding that the defendant was a flight risk and ordering that he be subject to pretrial detention.

¶2 The defendant, Alan J. Mrowka, appeals from the denial of his pretrial release under section

110-6.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/110-6.1 (West 2022)), as

amended by Public Act 101-652 (eff. Jan. 1, 2023), commonly known as the Pretrial Fairness Act

(Act).1 See Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023) (amending various provisions of the Act);

1 The Act has been referred to as the “SAFE-T Act” or the “Pretrial Fairness Act.” Neither 2024 IL App (2d) 240013-U

Rowe v. Raoul, 2023 IL 129248, ¶ 52 (lifting stay and setting effective date as September 18,

2023). For the following reasons, we reverse the order denying the defendant pretrial release.

¶3 I. BACKGROUND

¶4 On November 30, 2023, the State charged defendant with aggravated criminal sexual abuse

(720 ILCS 5/11-1.6(c)(1)(i) (West 2022)), a Class 2 felony. The complaint alleged that, between

May 4, 1995, and May 3, 1996, the defendant committed an act of sexual conduct with the victim,

in that the defendant grabbed the buttocks of the victim for the purpose of sexual gratification or

arousal. At the time of the offense, the defendant was at least 17 years of age and the victim was

under 13 years of age. The complaint further alleged that because the victim was under 18 years

of age, the period of limitations was extended. See id. § 3-6(j)(1). The record indicates that the

defendant was subsequently arrested in Florida.

¶5 On December 22, 2023, the State filed a verified petition to deny the defendant pretrial

release pursuant to section 110-6.1 of the Code (725 ILCS 5/110-6.1 (West 2022)). The State

alleged that the defendant was eligible for detention and should be denied pretrial release based on

(1) the defendant being a real and present threat to the safety of any person or persons or the

community, or, alternatively, because (2) the defendant posed a risk of “willful flight for class 3

and greater felony offenses.” Alternatively, if not detained, the State asserted that there should be

conditions placed on the defendant’s pretrial release, namely, that he be ordered not to leave the

State and to have no contact with the alleged victim.

¶6 That same day, the defendant was present in court for his initial appearance in this case and

the trial court conducted a detention hearing. The State first went over the facts of the present case

of those names is official, as neither appears in the Illinois Compiled Statutes or the public act. Rowe v. Raoul, 2023 IL 129248, ¶ 4 n. 1.

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and the basis of the allegations set forth in the complaint. The State explained that the allegations

in the complaint occurred when the defendant was the coach of the Wonder Lake ski team. The

State then detailed allegations from other victims, not directly at issue in this case. The statute of

limitations barred charges for the alleged offenses against the other victims. The uncharged

alleged offenses occurred when the defendant was 21 or 22 years of age. The State also noted that,

in 1984, the defendant had pleaded guilty to a charge of contributing to the sexual delinquency of

a minor and was sentenced to one year probation. The State argued that the defendant was 70

years old, that his dangerousness spanned his entire life, and thus he was a danger to the

community. As for the defendant being a flight risk, the State noted that the defendant was arrested

in Florida. The State did not know “for sure that [the defendant] lives in Florida” but argued that

he was a flight risk because he did not live in Illinois and was charged with “serious allegations.”

¶7 The defendant argued that he was not a flight risk. The defendant noted that he owns two

homes in Wonder Lake: his own home and his brother’s home. The defendant had bank accounts,

savings accounts, and securities accounts with financial and broker institutions in McHenry

County. The defendant stated that he was retired, had “winter[ed]” in Florida for the past couple

of years, and was building a home there. However, he still had significant ties to McHenry County.

He just happened to be in Florida at the time the charges were brought. The defendant asserted

that he would comply with terms and conditions of pretrial release and that he would not miss a

court date.

¶8 Following the hearing, the trial court granted the State’s petition. The trial court found that

the State failed to prove that the defendant was a danger to any persons or the community because

the alleged offense occurred almost 30 years ago and the victim was now an adult. However, the

trial court found that the State had proved that the defendant posed a high likelihood of willful

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flight. The trial court stated that its determination was based on the severity of the charges and the

defendant’s age, that the defendant had contacts with another State, and that most people facing

these types of charges might leave the State. The trial court concluded that it was possible that the

defendant could flee the State and that it could not “fashion an order” that would prevent that

flight.

¶9 The trial court entered a written form order that same day. In the order the trial court

indicated that aggravated criminal sexual abuse was a detainable offense, the defendant posed a

real and present threat of willful flight and that no condition or combination of conditions could

mitigate the threat. In the place on the form order for the trial court to enter its written findings,

the trial court stated that the defendant was a flight risk because “the defendant does not have

substantial contacts to Wonder Lake or the state. The Court finds that the defendant has contacts

with other states and presents a flight risk.” The defendant timely appealed from this order. The

defendant filed a memorandum in support of his appeal and the State filed a response.

¶ 10 II. ANALYSIS

¶ 11 At the outset we note that, in his notice of appeal, the defendant raised, as grounds for

relief, that (1) the State failed to prove that he committed a detainable offense; and (2) the State

failed to prove that he posed a risk of willful flight risk and that no conditions could mitigate that

risk. However, in his memorandum, the defendant only presents argument in support of the second

issue. As such, the first issue is abandoned. See People v. Rollins, 2024 IL App (2d) 230372,

¶ 22 (finding defendant abandoned those Rule 604(h) claims raised in the notice of appeal but not

addressed in his memorandum).

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¶ 12 On appeal, the defendant argues that the trial court erred in finding that the State met its

burden of proving (1) that he posed a high likelihood of willful flight and (2) that there were no

conditions or combination of conditions that could mitigate the risk of willful flight.

¶ 13 In Illinois, all persons charged with an offense are eligible for pretrial release. Id. §§ 110-

2(a), 110-6.1(e). Pretrial release is governed by article 110 of the Code as amended by the Act.

Id. § 110-1 et seq. Under the Code, as amended by the Act, a defendant’s pretrial release may only

be denied in certain statutorily limited situations. Id. §§ 110-2(a), 110-6.1(e).

¶ 14 Relevant to this appeal, a court may deny a defendant pretrial release if the defendant “has

a high likelihood of willful flight to avoid prosecution and is charged with *** [a] felony offense

other than a Class 4 offense.” Id. § 110-6.1(a)(8)(B). The Code defines “willful” flight as:

“intentional conduct with a purpose to thwart the judicial process to avoid prosecution.

Isolated instances of nonappearance in court alone are not evidence of the risk of willful

flight. Reoccurrence and patterns of intentional conduct to evade prosecution, along with

any affirmative steps to communicate or remedy any such missed court date, may be

considered as factors in assessing future intent to evade prosecution.” Id. § 110-1(f).

To deny a defendant pretrial release based on willful flight, the trial court must find that the State

proved the following by clear and convincing evidence: (1) the proof is evident or the presumption

great that the defendant has committed a detainable offense as set forth in section 110-6.1(a)(8);

(2) the defendant poses a high likelihood of willful flight to avoid prosecution; and (3) no condition

or combination of conditions can mitigate the risk of the defendant’s willful flight. Id. § 110-

6.1(e)(1), (3); see also People v. Slaten, 2024 IL App (2d) 240015-U, ¶ 21 (the trial court must

first make a threshold determination that the defendant poses a high likelihood of willful flight and

then, if so, address whether there any conditions that could mitigate the risk of willful flight).

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Finally, in its detention order, the trial court must “make a written finding summarizing [its]

reasons for concluding that the defendant should be denied pretrial release, including why less

restrictive conditions would not *** prevent the defendant’s willful flight from prosecution.” 725

ILCS 5/110-6.1(h)(1) (West 2022).

¶ 15 We review the court’s decision to deny pretrial release under a bifurcated standard. People

v. Trottier, 2023 IL App (2d) 230317, ¶ 13. Specifically, we review under the manifest-weight-

of-the-evidence standard the court’s factual findings as to dangerousness, flight risk, and whether

conditions of release could mitigate those risks. Id. A finding is against the manifest weight of

the evidence only where it is unreasonable or not based on the evidence presented. Id. We review

for an abuse of discretion the trial court’s ultimate determination regarding pretrial release. Id.

An abuse of discretion also occurs only when the trial court’s determination is arbitrary, fanciful,

or unreasonable, or where no reasonable person would take the view adopted by the trial court. Id.

¶ 16 In the present case, the State failed to provide clear and convincing evidence that the

defendant posed a high likelihood of willful flight. The State argued only that the defendant did

not live in Illinois and that the present charge against him was serious. However, the evidence

indicated that the defendant owned two homes in McHenry County and had bank, savings, and

investments accounts with various financial institutions in McHenry County. Further, the

defendant had “wintered” in Florida for the past two winters. There was no evidence that the

defendant did not live in Illinois or had contact with states other than Florida and Illinois.

¶ 17 Similarly, the trial court’s determination was not supported by the evidence. In its written

order, the trial court found that the defendant did not have substantial contacts to Wonder Lake or

Illinois. However, as noted above, the evidence showed that the defendant owned two homes in

Wonder Lake and maintained numerous financial accounts in McHenry County. While the

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evidence showed that the defendant went to Florida for the winter, there was no evidence that he

did not otherwise live in Illinois. The trial court also found that defendant had “contacts with other

states.” While there was evidence that the defendant had a connection to Florida, there was not

clear and convincing evidence that he intended to go to Florida in attempts to avoid prosecution.

See People v. Boncosky, 2024 IL App (2d) 230496-U, ¶ 23 (high likelihood of willful flight proved

where defendant “sold his business and home, made statements that he intended to move to Florida

***, changed his phone number to a Florida number, and expressed interest in changing his

name”); People v. Cepeda, 2024 IL App 2d 230564-U, ¶ 21 (finding of willful flight affirmed

where defendant made statements indicating that he was leaving Illinois with his family to join his

father in Mexico). Finally, in its oral ruling, the trial court noted that someone facing the present

charge might leave the State. However, to justify pretrial detention, the Act requires clear and

convincing proof of specific articulable facts of the case, not generalities about the severity of the

criminal charges. See 725 ILCS 5/110-6.1(f)(7) (West 2022) (noting the decisions regarding

pretrial detention must be individualized); see also People v. Stock, 2023 IL App (1st) 231753, ¶

18 (“more is required” to overcome a defendant’s presumed eligibility for release than to focus on

the nature of the criminal charge alone). Thus, the trial court’s decision granting pretrial detention

based on willful flight was against the manifest weight of the evidence. We remand for the trial

court to determine any conditions of the defendant’s release. See 725 ILCS 5/110-10 (West 2022).

Considering our resolution of this issue, we need not consider the defendant’s remaining

contention on appeal.

¶ 18 III. CONCLUSION

¶ 19 For the reasons stated, the judgment of the circuit court of McHenry County is reversed

and remanded.

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¶ 20 Reversed and remanded.

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