People v. Myers

2024 IL App (5th) 240141-U

Opinion

2024 IL App (5th) 240141-U NOTICE NOTICE Decision filed 04/16/24. The This order was filed under text of this decision may be NO. 5-24-0141 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, ) Vermilion County. ) v. ) No. 24-CF-34 ) MICHAEL MYERS, ) Honorable ) Derek J. Girton, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

PRESIDING JUSTICE VAUGHAN delivered the judgment of the court. Justices Barberis and Boie concurred in the judgment.

ORDER

¶1 Held: The trial court’s order granting the State’s petition to deny pretrial release is affirmed where the trial court’s findings were not against the manifest weight of the evidence, the order denying pretrial release was not an abuse of discretion, and either insufficient argument, or no argument, was presented regarding defendant’s claims of an unfair hearing.

¶2 Defendant timely appeals the trial court’s order denying his pretrial release pursuant to

Public Act 101-652, § 10-255 (eff. Jan. 1, 2023), commonly known as the Safety, Accountability,

Fairness and Equity-Today (SAFE-T) Act (Act). See Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023);

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

2023). For the following reasons we affirm the trial court’s order.

1 ¶3 I. BACKGROUND

¶4 On January 16, 2024, defendant was charged by information with the following six counts:

(1) unlawful possession of methamphetamine with intent to deliver (more than 100 grams and less

than 400 grams) in violation of section 55(a)(1) of the Methamphetamine Control and Community

Protection Act (720 ILCS 646/55(a)(1) (West 2022)), a Class X felony; (2) unlawful possession

of methamphetamine (more than 100 and less than 400 grams) in violation of section 60(a) of the

Methamphetamine Control and Community Protection Act (id. § 60(a)), a Class X felony;

(3) unlawful possession of a weapon by a felon (based on Vermilion case No. 03-CF-582) in

violation of section 24-1.1(a) of the Criminal Code of 2012 (720 ILCS 5/24-1.1(a) (West 2022)),

a Class 2 felony; (4) unlawful possession with intent to deliver controlled substance (clonazepam)

in violation of section 401(d) of the Illinois Controlled Substances Act (720 ILCS 570/401(d)

(West 2022)), a Class 2 felony; (5) unlawful possession of a firearm with defaced serial number,

in violation of section 24-5 of the Criminal Code of 2012 (720 ILCS 5/24-5 (West 2022)), a Class

3 felony; and (6) unlawful possession controlled substance (clonazepam) in violation of section

402(d) of the Illinois Controlled Substances Act (720 ILCS 570/402(d) (West 2022)), a Class 4

felony. A warrant for defendant’s arrest was issued on January 17, 2024.

¶5 Defendant was arrested on January 18, 2024. The public defender was appointed to

represent defendant on January 19, 2024.

¶6 On January 19, 2024, a pretrial investigation report was filed that revealed defendant was

39 years old, divorced, with three minor children. He had been living with his fiancée for four

years in Danville. He advised that his employment involved “freelance” odd job work that varied

from working on cars to trimming trees. He reported a history of drug abuse (methamphetamine)

and mental health issues (bipolar disorder and depression). His criminal history included pending

2 charges for burglary and criminal damage to property (case No. 23-CF-684) and possession of

methamphetamine and controlled substances (case No. 23-CF-264). He also a previous charge of

possession of methamphetamine (case No. 22-CF-74) for which he received 24 months’ probation

on November 2, 2022, and was ordered to drug court. However, according to the investigatory

report, drug court had since been revoked and the case was now pending.

¶7 Defendant also had four prior convictions for possession of methamphetamine (case Nos.

17-CF-235, 15-CF-209, 11-CF-710, and 04-CF-478), aggravated battery with great bodily harm

(case No. 07-CF-505), burglary (case No. 03-CF-582), possession of controlled substance (case

No. 05-CF-70), domestic battery with bodily harm (case No. 04-CM-170), retail theft (case No.

03-CM-607), and two counts of battery (case No. 01-CM-739). The report indicated that defendant

was on probation at the time of the current arrest. The Virginia Pretrial Risk Assessment

Instrument-Revised (VPRAI-R) scored defendant at a 13 out of 14 and classified him as a Level 6

out of 6 with a 37.1% likelihood of recidivism while on pretrial release.

¶8 On January 19, 2024, the State filed a verified petition to deny defendant pretrial release.

The petition alleged that defendant was charged with a qualifying offense and posed a real and

present threat to the safety of any person, persons, or the community. The petition further alleged

that no condition, or combination of conditions, could mitigate defendant’s dangerousness.

¶9 The hearing on the State’s petition was set for January 22, 2024. At that time, the State

indicated that it did not see that the petition had been filed and would get one on file if one was

not filed. Private counsel was obtained and entered her appearance for defendant and advised the

court that she had not seen the petition either and that defendant’s prior counsel had the file.

Defense counsel indicated that if the State did not have a petition on file, then she would proceed

with a motion to release defendant. Conversely, if there was a petition on file, defense counsel

3 requested a continuance. The public defender requested that his appointment be vacated, and the

court vacated the appointment. Thereafter, the court took a brief recess to determine if a petition

had been filed.

¶ 10 When the parties returned, the court was advised that the State filed a petition the previous

Friday instanter and filed a second identical petition the day of the hearing. Defense counsel

objected, stating the petition was untimely because the State failed to provide a copy of the filing

at the Friday hearing as none appeared in the public defender’s file. Counsel further argued that

since it was an untimely filing, defendant should be released. The court reviewed its file and found

the filing on January 19, 2024, was timely. When asked if defense counsel was ready to proceed,

counsel argued that the record failed to reflect the filing and further moved to strike the second

instanter petition filed with the court that day as untimely. The court asked defense counsel if she

was asking it to reconsider its previous decision and counsel said, “Yes.” The court denied the

requested reconsideration. Thereafter, defense counsel requested a continuance and that the court

order the State to provide her with a file-marked copy of the original petition “they say was

tendered on Friday.” The court continued the hearing.

¶ 11 Following the hearing, defense counsel filed a motion to dismiss the State’s verified

petition alleging the State’s petition was untimely. In support, counsel argued that defendant was

previously arrested for burglary on November 3, 2023, at which time the car he was driving was

impounded. Following an interview with defendant, in which he informed police of a different

person who committed the burglary, defendant was released with conditions. The motion

contended that the sheriff’s department did not search the impounded vehicle until November 9,

2023, when they received consent from the registered owner. Upon commencement of the search,

investigators found methamphetamine and a handgun, at which time they obtained a search

4 warrant for the vehicle and retrieved the items. Thereafter, on January 16, 2024, the State filed the

additional charges under a new case number and sought and obtained a warrant for defendant’s

arrest. The motion argued that the State should have to take the new charges back to the grand jury

in 23-CF-684, since those charges arose from the same course of conduct as the original burglary.

For those reasons, the motion contended that the State’s petition to deny pretrial release was

required to be filed by November 24, 2023, in order to be timely.

¶ 12 A hearing on the pending motion and petition was held on January 24, 2024. Defense

counsel confirmed that the record now reflected the filing of the State’s January 19, 2024, petition

and requested dismissal of the State’s second verified petition that was filed on January 22, 2024.

The court dismissed the State’s January 22, 2024, petition. Thereafter, defense counsel presented

argument on the motion to dismiss by reading the allegations to the court. The court responded by

stating that the previous burglary charge was not a detainable offense under the statute. The State

argued that the charge in the instant case was not burglary. It averred defendant was charged with

possession of a weapon and methamphetamine with intent to deliver, neither of which had anything

to do with burglary. The court denied defense counsel’s motion stating that the State could “take

the time they think is necessary to conduct the investigation.” It further stated that defendant was

not detained while the State investigated, and the new charges were detainable offenses.

¶ 13 The court then proceeded with the State’s petition to deny pretrial release. The State

proffered that defendant was arrested for burglary the previous November 2023 and advised police

during the interview that there was an additional burglar and evidence of that burglary was in the

car. The car defendant was driving was eventually searched, at which time, officers were looking

for the Halloween mask and the items revealing evidence of the burglary. When looking for those

items, the officers found other items and evidence consisting of five or six bags of

5 methamphetamine that amounted to more than 100 grams. The search also revealed 40 clonazepam

pills and a semi-automatic handgun with one bullet in the chamber. The State also proffered

defendant’s Class 2 felonies were subject to Class X sentencing based on his criminal history,

which included a conviction for burglary in 2003 and a conviction for possession of

methamphetamine. The State proffered that defendant was heard on a jailhouse tape talking to his

girlfriend about the handgun and the methamphetamine in the vehicle. Defendant told her that he

would be in trouble if they found those and asked her to get rid of them. He stated the primary

owner of those materials was someone else but suggested he knew exactly where the gun and

methamphetamine were located in the car. Subsequent to that, defendant confessed that the

methamphetamine was for himself. He also confessed that he knew the gun was in the car.

¶ 14 The State further addressed defendant’s criminal history, noting the pending burglary

charges and two Class 1 felonies for methamphetamine possession. Defendant’s criminal

convictions included possession of methamphetamine in 2017 (six years Illinois Department of

Corrections (IDOC)), possession of methamphetamine in 2015 (three years IDOC), possession of

methamphetamine in 2011 (30 months IDOC), aggravated battery in 2007 (five years IDOC),

possession of controlled substance in 2005 (two years IDOC), domestic battery in 2004, possession

or manufacture of controlled substance in 2004 (four years IDOC), Class 2 burglary in 2003 (four

years IDOC), and battery in 2001. 1 Given defendant’s history, the State proffered that nothing

short of detention would protect the community and asked the court to detain defendant.

¶ 15 Defense counsel proffered that the telephone calls alluded to by the State indicated that

someone else—who was previously loaned the car—put the items in the car and had the vehicle

1 According to the pretrial investigatory report, defendant received court supervision and a fine on the 2001 battery charge. 6 for approximately 24 hours before defendant was stopped in the vehicle. Counsel disagreed that

the pending charges were eligible for Class X sentencing. She agreed that defendant had a criminal

history but indicated the State failed to show, other than by assertion, that defendant posed a real

and present threat to the community, or what that real and present threat was. Counsel contended

that defendant was arrested for burglary and there were items found in his car. However, those

facts alone did not make him a real and present threat. Counsel further argued that the State failed

to prove that no condition, or combination of conditions, could mitigate defendant’s

dangerousness.

¶ 16 Counsel proffered that defendant would have a job available if he was released and that

putting him on GPS would mitigate any threat. In support, counsel argued that this was not a

situation where defendant committed a new offense on pretrial release. This was simply an

elevation of some charges that were no different from when he was released the first time.

¶ 17 The court found there was clear and convincing evidence that the proof was evident and

the presumption great that defendant committed a qualifying offense. The court further found

“based on his criminal history, as well as the pending charges, that he does pose a threat to the

community and that no condition or combination of conditions could mitigate that real and present

threat.” The court ordered the defendant detained and advised defendant of his appeal rights.

¶ 18 A written order of detention was filed on January 24, 2024. The order found the proof was

evident or the presumption great that defendant committed the qualifying offense. The order

further found that defendant posed a real a present threat to the safety of any person(s) or the

community and no condition, or combination of conditions, could mitigate the real and present

threat to the safety of any person or persons. The order found that less restrictive conditions would

not assure the safety of any persons, or the community based on the “proffer presented by the

7 State” and “criminal history.” Defendant timely appealed. Ill. S. Ct. R. 604(h)(2) (eff. Dec. 7,

2023).

¶ 19 II. ANALYSIS

¶ 20 Pretrial release—including the conditions related thereto—is governed by statute. See Pub.

Act 101-652, § 10-255 (eff. Jan. 1, 2023); Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023). A

defendant’s pretrial release may be denied only in certain statutorily limited situations. 725 ILCS

5/110-6.1 (West 2022). In order to detain a defendant, the State has the burden to prove by clear

and convincing evidence that (1) the proof is evident or the presumption great that the defendant

has committed a qualifying offense, (2) the defendant’s pretrial release poses a real and present

threat to the safety of any person or the community or a flight risk, and (3) less restrictive

conditions would not avoid a real and present threat to the safety of any person or the community

and/or prevent the defendant’s willful flight from prosecution. Id. § 110-6.1(e).

¶ 21 In considering whether the defendant poses a real and present threat to the safety of any

person or the community, i.e., making a determination of “dangerousness,” the trial court may

consider evidence or testimony concerning factors that include, but are not limited to, (1) the nature

and circumstances of any offense charged, including whether the offense is a crime of violence

involving a weapon or a sex offense; (2) the history and characteristics of the defendant; (3) the

identity of any person to whom the defendant is believed to pose a threat and the nature of the

threat; (4) any statements made by or attributed to the defendant, together with the circumstances

surrounding the statements; (5) the age and physical condition of the defendant; (6) the age and

physical condition of the victim or complaining witness; (7) whether the defendant is known to

possess or have access to a weapon; (8) whether at the time of the current offense or any other

8 offense, the defendant was on probation, parole, or supervised release from custody; and (9) any

other factors including those listed in section 110-5 of the Code (id. § 110-5). Id. § 110-6.1(g).

¶ 22 To set appropriate conditions of pretrial release, the trial court must determine, by clear

and convincing evidence, what pretrial release conditions, “if any, will reasonably ensure the

appearance of a defendant as required or the safety of any other person or the community and the

likelihood of compliance by the defendant with all the conditions of pretrial release.” Id. § 110-

5(a). In reaching its determination, the trial court must consider (1) the nature and circumstances

of the offense charged; (2) the weight of the evidence against the person; (3) the history and

characteristics of the person; (4) the nature and seriousness of the specific, real, and present threat

to any person that would be posed by the person’s release; and (5) the nature and seriousness of

the risk of obstructing or attempting to obstruct the criminal justice process. Id. The statute lists

no singular factor as dispositive. See id.

¶ 23 Our standard of review of pretrial release determinations is twofold. The trial court’s

factual findings are reviewed under the manifest weight of the evidence standard. People v. Swan,

2023 IL App (5th) 230766, ¶ 12. “ ‘A finding is against the manifest weight of the evidence only

if the opposite conclusion is clearly evident or if the finding itself is unreasonable, arbitrary, or not

based on the evidence presented.’ ” Id. (quoting People v. Deleon, 227 Ill. 2d 322, 332 (2008)).

We review the trial court’s ultimate determination regarding the denial of pretrial release for an

abuse of discretion. Id. ¶ 11. “An abuse of discretion occurs when the decision of the circuit court

is arbitrary, fanciful, or unreasonable, or when no reasonable person would agree with the position

adopted by the trial court.” Id.; see People v. Heineman, 2023 IL 127854, ¶ 59. “[I]n reviewing

the circuit court’s ruling for an abuse of discretion, we will not substitute our judgment for that of

the circuit court, ‘merely because we would have balanced the appropriate factors differently.’ ”

9 People v. Simmons, 2019 IL App (1st) 191253, ¶ 15 (quoting People v. Cox, 82 Ill. 2d 268, 280

(1980)).

¶ 24 Defendant’s notice of appeal requests reversal of the trial court’s order denying his motion

to dismiss the State’s petition and reversal of the trial court’s order denying defendant pretrial

release. Defendant listed four issues on review: (1) whether the State failed to meet its burden in

proving defendant posed a real and present threat to the safety of any persons or the community;

(2) whether the State failed to meet its burden of proving that no condition or combination of

conditions could mitigate defendant’s dangerousness; (3) whether the court erred in determining

that no condition, or combination of conditions, would reasonably ensure defendant’s appearance

for later hearing or prevent defendant from being charged with a subsequent felony or Class A

misdemeanor; and (4) whether the trial court erred in denying defendant’s motion to dismiss the

State’s verified petition to deny pretrial release.

¶ 25 On March 6, 2024, defendant’s counsel on appeal, the Office of the State Appellate

Defender (OSAD), filed a Rule 604(h) memorandum. The memorandum argued that defendant

presented no real or present threat to the safety of the community and that the trial erred in finding

that no condition, or combination of conditions, could mitigate defendant’s dangerousness.

¶ 26 The State filed a Rule 604(h) memorandum on March 29, 2024. Therein, the State ignores

our standard of review (see People v. Burke, 2024 IL App (5th) 231167, ¶ 20) and instead claims

our review is solely limited to determining whether the trial court’s order denying pretrial release

was an abuse of discretion. Thereafter, the State argued that defendant was charged with

committing a qualifying offense, posed a real and present threat to the safety of the community,

and that no less restrictive condition would avoid defendant’s real and present threat to the safety

of the community.

10 ¶ 27 “As a matter of practicality and considering the long-standing principles of appellate

procedure *** if a memorandum is filed, it will be the controlling document for issues or claims

on appeal.” People v. Forthenberry, 2024 IL App (5th) 231002, ¶ 42. This court will not address

the issues listed in a notice of appeal unless they are also raised in any subsequently filed Rule

604(h)(2) memorandum. Id. Here, OSAD did not address the last two issues raised by defendant

and therefore, we find those issues were forfeited.

¶ 28 Instead, we turn to the two issues raised by defendant in his notice of appeal and further

addressed by OSAD. The first issue involves the court’s finding that defendant posed a real and

present threat to the community. In support, defendant argues that the State “merely added charges

from the same day that Defendant had already been stopped for and charged.” He further argued

that the State proffered nothing to show that he posed 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.

¶ 29 OSAD’s memorandum concedes the State provided a basis for dangerousness, that being

defendant’s criminal history, but argues the State never attributed any of the prior offenses as a

danger to the community. OSAD argues that prior convictions should be indicative of violent,

abusive, or assaultive behavior and defendant’s history was mostly drug crimes. Only three

qualified as violent, abusive, or assaultive behavior and those occurred between 2001 and 2007.

OSAD contends that, at most, defendant’s criminal history was indicative of a risk of recidivism

which did not endanger the community. We disagree.

¶ 30 The issue raised is one of evidentiary sufficiency. Typically, when considering the

sufficiency of the evidence, “the reviewing court must view the evidence ‘in the light most

favorable to the prosecution.’ ” People v. Cunningham, 212 Ill. 2d 274, 280 (2004) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “This means the reviewing court must allow all

11 reasonable inferences from the record in favor of the prosecution.” Id. In this case, the question

becomes, “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found’ ” (emphasis in original) (id. at 278 (quoting Jackson, 443

U.S. at 319)) that the State proved by clear and convincing evidence that defendant posed a real

and present threat to any person(s) or the community.

¶ 31 As noted above, the statute provides factors for the trial court’s consideration in

determining dangerousness. Included in those factors are the “nature and circumstances of any

offense charged, including whether the offense is a crime of violence, involving a weapon, or a

sex offense.” See 725 ILCS 5/110-6.1(g)(1) (West 2022). Here, two of the offenses charged

involved a weapon. One involved defendant’s unlawful possession of a weapon due to his status

as a felon and the other involved the unlawful possession of a weapon that was defaced to remove

its identifying serial number. The second factor involves defendant’s history and characteristics.

Id. § 110-6.1(g)(2). This includes defendant’s prior criminal and social history that may reveal a

potential of violence.

¶ 32 While we agree that numerous convictions involved defendant’s possession of

methamphetamine, the criminal history also included convictions for aggravated battery with great

bodily harm, domestic battery with bodily harm, and two counts of battery. Further, one of the

current charges involved delivery of, or possession with intent to deliver, methamphetamine which

the State proffered was based on how the methamphetamine was packaged. While defendant

admitted the methamphetamine was his, he denied it was for his personal use, which would infer

its distribution or delivery to a person in the community. Finally, the statute allows the court to

consider whether the defendant was on probation, parole, aftercare release, mandatory supervised

release or other release from custody pending trial, sentencing, appeal, or completion of sentence

12 at the time of the offense. Id. § 110-6.1(g)(8). Here, it was undisputed that defendant was on

probation at the time of the offense. Based on this evidence, the trial court’s finding that defendant

posed a real and present threat to the community was not against the manifest weight of the

evidence.

¶ 33 Defendant’s second argument contends that the State failed to prove that no condition, or

combination of conditions, would mitigate his dangerousness. In support, defendant argues that

the State alleged nothing other than defendant’s criminal record, and failed to argue why defendant

could not be released on electronic monitoring. OSAD claims the trial court erred in finding that

no condition, or combination of conditions, could mitigate defendant’s dangerousness to the

community where the State failed to point to anything in its proffer to address the issue. OSAD

further complains that the State failed to address any mandatory or permissive conditions of release

and offered no evidence or explanation why those conditions would be insufficient, beyond

alluding to defendant’s criminal history. Again, the issue is one of evidentiary sufficiency.

¶ 34 Contrary to the claims in defendant’s notice of appeal and OSAD’s memorandum,

defendant’s criminal history cannot be minimized. In determining which conditions of pretrial

release, if any, would reasonably ensure the appearance of the defendant, the safety of persons and

the community, and the likelihood of defendant’s compliance with terms of pretrial release, the

statute provides factors for the trial court’s consideration. See id. § 110-5(a). Many of these are

similar to those listed in section 110-6.1(g) that address a defendant’s dangerousness. Those factors

are addressed above and are equally relevant here; notably, the fact that defendant was on probation

at the time of the alleged offense, his access to weapons despite his felon status, and possessing

methamphetamine despite previous incarcerations for possessing methamphetamine. The State’s

proffer noted defendant’s prior incarcerations and his current probationary status. This proffer

13 reveals a continued lack of compliance with the law and that nothing short of detention would

protect the community. Further, defendant admitted the methamphetamine was his. That

admission, as well as defendant’s knowledge of the weapon in the car despite his felony status,

also clearly indicates that neither defendant’s prior incarcerations nor his current probationary

status dissuaded him from continuing to participate in activities that could result in further

incarceration. Accordingly, we cannot find that the trial court’s reliance on the State’s proffer and

defendant’s criminal history to conclude that no condition of pretrial release would mitigate

defendant’s dangerousness was against the manifest weight of the evidence.

¶ 35 Finally, OSAD also argues that the trial court erred in not explaining why it believed

defendant would not comply with any condition of release. We again disagree. The trial court’s

order listed the basis for finding less restrictive conditions would not assure safety of any person

or persons or the community as the proffer presented by the State and defendant’s criminal history.

Although the trial court’s reasons were succinctly stated, given our review of both the State’s

proffer, and defendant’s criminal history, the trial court’s statement was sufficient.

¶ 36 None of the trial court’s findings related to a qualifying offense, dangerousness, or a lack

of condition, or combination of conditions, available to mitigate defendant’s dangerousness were

against the manifest weight of the evidence. As such, we hold that the trial court’s ultimate

disposition, denying pretrial release, was not an abuse of discretion.

¶ 37 III. CONCLUSION

¶ 38 For the reasons stated herein, the trial court findings were not against manifest weight of

the evidence and its ultimate disposition was not an abuse of discretion. Therefore, we affirm the

trial court’s order.

¶ 39 Affirmed.