People v. Paige

2024 IL App (3d) 240054-U

• Court: Appellate Court of Illinois
• Decided: May 2, 2024
• Docket: 3-24-0054
• Status: Unpublished

Opinion

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

2024 IL App (3d) 240054-U

Order filed May 2, 2024 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 21st Judicial Circuit, ) Kankakee County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-24-0054 v. ) Circuit No. 22-CF-734 ) ANTONIO J. PAIGE, ) Honorable ) William S. Dickenson, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE PETERSON delivered the judgment of the court. Justice Hettel concurred in the judgment. Presiding Justice McDade dissented. ____________________________________________________________________________

ORDER

¶1 Held: The State’s petition to deny pretrial release was timely. The court did not abuse its discretion by granting the State’s petition. Defendant forfeited his argument that the State failed to provide him with his criminal background prior to the detention hearing.

¶2 Defendant, Antonio J. Paige, was indicted on December 2, 2022, with aggravated criminal

sexual assault (Class X) (720 ILCS 5/11-1.3(a)(2) (West 2020)) and criminal sexual assault (Class

1) (id. § 11-1.20(a)(3)). Defendant’s bail was set at $500,000, but he remained in custody. On December 12, 2023, defendant filed a motion seeking pretrial release. However, on December 19,

2023, defendant withdrew his motion. He then refiled on January 5, 2024. In response, the State

filed a verified petition to deny pretrial release on January 10, 2024, alleging defendant was

charged with a forcible felony, and his release posed a real and present threat to the safety of any

person, persons, or the community under section 110-6.1(a)(1.5) of the Code of Criminal

Procedure of 1963 (725 ILCS 5/110-6.1(a)(1.5) (West 2022)).

¶3 A hearing was held on January 10, 2024. Defense counsel objected to the State’s petition

as untimely. Counsel argued that defendant was not a danger to the community or the victim in

this case, as there was an order of protection that he had not tried to violate. Counsel further

indicated that defendant could be placed on GPS monitoring, which he had not been on before.

¶4 The State provided the factual basis as follows: Defendant was convicted of armed robbery

in 2004 and 2007. He was released from the Department of Corrections on May 15, 2020. Shortly

thereafter, he was given custody of his daughter, who was 16 or 17 years old at the time. He then

had intercourse with her on at least 10 occasions and did not always use protection. She then

became pregnant. He told her that if she was going to have the baby, she would not be allowed to

see anyone other than him. She decided to have an abortion. A paternity test was conducted at the

Illinois State Police crime lab, which indicated with 99.9999% likelihood that defendant was the

father. Defendant was arrested on multiple other charges in 2022, and his parole was revoked. The

State indicated that defendant was a danger to his daughter and the public. It noted that he had

been arrested for selling drugs, destroying evidence, and possessing cocaine.

¶5 The court granted the petition, finding that the State met its burden by clear and convincing

evidence. In doing so, the court indicated that defendant was on parole but “continued to pick up

cases,” which included a charge for possession of a weapon by a felon. The court stated, “that

2 would indicate to this Court that the defendant is not likely to be able to comply with all conditions

of pretrial release.” The court indicated that defendant was a danger to the victim in this case and

considered the factors for the dangerousness standard. The court also found that there were no

conditions that would ensure defendant’s appearance, the safety of others, and the likelihood of

compliance.

¶6 On appeal, defendant argues (1) the State’s petition was untimely and it had no authority

to detain him, (2) he was not a threat and there were conditions that could be imposed, and (3) the

State did not provide defendant with his criminal background prior to the hearing. We consider

factual findings for the manifest weight of the evidence, but the ultimate decision to grant or deny

the State’s petition to detain is considered for an abuse of discretion. People v. Trottier, 2023 IL

App (2d) 230317, ¶ 13. Under either standard, we consider whether the court’s determination is

arbitrary or unreasonable. Id.; see also People v. Horne, 2023 IL App (2d) 230382, ¶ 19.

¶7 Everyone charged with an offense is eligible for pretrial release, which may only be denied

in certain situations. 725 ILCS 5/110-2(a), 110-6.1 (West 2022). The State must file a verified

petition requesting the denial of pretrial release. Id. § 110-6.1. The State then has the burden of

proving by clear and convincing evidence (1) the proof is evident or presumption great that

defendant committed a detainable offense, (2) defendant poses a real and present threat to any

person, persons, or the community or is a flight risk, and (3) no conditions could mitigate this

threat or risk of flight. Id. § 110-6.1(a), (e). Sections 110-5(a) and 110-6.1(g) set forth factors for

the court to consider when determining dangerousness and any conditions. Id. §§ 110-5(a), 110-

6.1(g).

3 ¶8 First, we have already considered the issue of the State’s timeliness in People v. Kurzeja,

2023 IL App (3d) 230434, ¶¶ 14-15. In Kurzeja, we stated that defendants who were arrested prior

to the implementation of bail reform

“can either ‘elect to stay in detention until such time as the previously set monetary

security may be paid’ (People v. Rios, 2023 IL App (5th) 230724, ¶ 16), or file a

motion to modify. If defendant chooses the latter option, the State may file a

responding petition. ‘[O]nce a defendant elects “to have their pretrial conditions

reviewed anew” (Rios, 2023 IL App (5th) 230724, ¶ 16), the matter returns to the

proverbial square one, where the defendant may argue for the most lenient pretrial

release conditions, and the State may make competing arguments.’ People v. Jones,

2023 IL App (4th) 230837, ¶ 23. ‘This is analogous to when a change in the

sentencing law occurs after a defendant has committed the offense—the defendant

is given the opportunity to choose to be sentenced under that law that existed at the

time of the offense or the newly enacted law.’ Rios, 2023 IL App (5th) 230724, ¶

17.” Kurzeja, 2023 IL App (3d) 230434, ¶ 14.

Based on this we found that the State was permitted to file a responsive petition if defendant chose

to file a motion to reopen the conditions of release. Id. ¶ 15. We adopt this reasoning, here, and

hold that the State was permitted to file a petition to detain in response to defendant’s motion

seeking pretrial release. We note that defendant argues that the State needed to file its petition

within 21 days of his December 19th motion. See 725 ILCS 5/110-6.1(c)(1) (West 2022) However,

defendant withdrew this motion and did not file again until January 5, 2024. Therefore, when the

State filed its petition on January 10, 2024, it was timely filed.

4 ¶9 Second, we cannot say that the court abused its discretion in granting the State’s petition.

Defendant committed this offense and others while on parole for armed robbery, thus showing he

was dangerous. Moreover, the State presented evidence and argument regarding the factors in

section 110-5(a), including the nature and circumstance of the offense and the history and

characteristics of defendant. Id. The court further found that no conditions, including GPS

monitoring, would mitigate the threat defendant posed. Based on the evidence and argument

presented, it was not against the manifest weight of the evidence for the court to determine that the

defendant was thus unlikely to comply with any conditions of pretrial release. Therefore, the court

did not abuse its discretion in granting the State’s petition.

¶ 10 Third, defendant argues, “The [S]tate did not provide the defense with the criminal

background of [defendant] prior to the hearing.” This one sentence amounts to defendant’s entire

argument on the issue. Moreover, defendant did not bring this alleged error to the attention of the

circuit court and has, thus, forfeited it. As the court said in People v. Davis, 2023 IL App (1st)

231856, ¶ 39,

“[D]efendant’s counsel may not stand mutely by, participate in the hearing without

objection, and then complain of error on appeal. Counsel did not object to the

State’s proffer of defendant’s criminal history at the beginning of the detention

hearing. Counsel likewise failed to object at any of the multiple times the trial court

mentioned defendant’s criminal history in its ruling. Although the trial court did

not ask whether the State tendered copies to the defendant, nothing prevented

defense counsel from raising an objection at any of the multiple opportunities it had

to do so. The proper time to object would have been at the hearing, to give the trial

judge a chance to pass the case and allow the State to easily remedy the alleged

5 problem. Based on the circumstances of this case, we find that defendant

acquiesced to the State’s proffer of his criminal history[.] [Citations omitted.]”

¶ 11 The judgment of the circuit court of Kankakee County is affirmed.

¶ 12 Affirmed.

¶ 13 PRESIDING JUSTICE McDADE, dissenting:

¶ 14 I agree with the majority’s findings that the State’s verified petition to deny pretrial release

was timely and that defendant forfeited his argument that the State did not provide him with his

criminal background prior to the detention hearing. However, I disagree with the majority’s

findings that the State satisfied the requirements under subsections 110-6.1(e)(2) and 110-6.1(e)(3)

of the statute, and respectfully dissent from the majority’s decision to affirm the circuit court’s

order granting the State’s verified petition to deny pretrial release.

¶ 15 As the majority recites, section 110-6.1(e) of the Code of Criminal Procedure of 1963 states

that “[a]ll defendants shall be presumed eligible for pretrial release. . . .” 725 ILCS 5/110-6.1(e)

(West 2022). To rebut this presumption, the State must prove the following three elements, by

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

defendant has committed a detainable offense; (2) that the defendant poses a real and present threat

to the safety of any person, persons, or the community; and (3) that no conditions can mitigate this

threat. Id.

¶ 16 The majority bases its determination of dangerousness, relevant to the second of the above

elements, on the fact that defendant committed the charged offenses and others while on parole for

armed robbery. However, defendant’s prior convictions for armed robbery occurred back in 2004

and 2007, at least 17 years ago. As to the charged offenses in this case, they are alleged to have

occurred between July 1, 2020 and October 31, 2021, which was over two years ago, and the State

6 presented no evidence that defendant has so much as attempted to contact his daughter, with whom

he no longer lives, who is protected by a restraining order against defendant, and who has since

relocated to a different county.

¶ 17 Furthermore, although defendant was arrested for other offenses following the charges in

this case, these offenses were possession of a controlled substance, unlawful possession of a

controlled substance with intent to deliver, and obstruction of justice by destroying evidence. None

of these offenses are inherently violent in nature. Nor is there sufficient indication that defendant

posed, or continues to pose, a real and present threat to any person, persons, or the community,

related to the commission of the offenses. For these reasons, I find that the State did not meet its

burden under subsection 110-6.1(e)(2) of the statute.

¶ 18 Relevant to subsection 110-6.1(e)(3), the State’s verified petition to deny pretrial release is

devoid of any mention of mitigating conditions, or of the argument that no mitigating conditions

exist. It does not even acknowledge that conditions form an element when setting out its burden

of proof. Nor did the State did mention or argue the same during the detention hearing. Under these

circumstances, it cannot be said that the State met its burden of proof as to the element pertaining

to mitigating conditions. See Black’s Law Dictionary 190 (7th ed. 1999) (explaining that a party’s

burden of proof includes the burden of persuasion, which is the duty to convince the fact-finder to

view the facts in a way favorable to that party). Consequently, I would reverse the circuit court’s

judgment as an abuse of discretion.