2023 IL App (5th) 230940-U NOTICE NOTICE Decision filed 12/12/23. The This order was filed under text of this decision may be NO. 5-23-0940 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the
Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Douglas County. ) v. ) No. 23-CF-199 ) ERVIN F. PLANK, ) Honorable ) Kate D. Watson, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court. Justices Welch and Cates concurred in the judgment.
ORDER
¶1 Held: The circuit court’s order detaining the defendant was not an abuse of discretion where the circuit court’s determinations were not unreasonable or arbitrary.
¶2 The defendant, Ervin F. Plank, appeals the circuit court of Douglas County’s October 16,
2023, order regarding the defendant’s pretrial release pursuant to Public Act 101-642 (eff. Jan. 1,
2023), commonly known as the Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act
(Act).1 See Pub. Acts 101-652, § 10-255, 102-1104, § 70 (eff. Jan. 1, 2023); Rowe v. Raoul, 2023
IL 129248, ¶ 52 (lifting stay and setting effective date as September 18, 2023).
1 The Act has been sometimes referred to as the “SAFE-T Act” or the “Pretrial Fairness Act.” Neither name is official, as neither appears in the Illinois Compiled Statutes or the public act. See Rowe v. Raoul, 2023 IL 129248, ¶ 4 n.1. 1 ¶3 I. BACKGROUND
¶4 On October 13, 2023, the defendant was charged by information with six counts, including
two counts of predatory criminal sexual assault of a child (a Class X felony (720 ILCS 5/11-1.40(b)
(West 2022)), which has a maximum penalty of 60 years’ incarceration), two counts of criminal
sexual assault, and two counts of aggravated criminal sexual abuse, committed over a four-year
period between June 1, 2010, and April 15, 2014. The information charged the defendant with
placing his penis in the mouth and vagina of the minor for the purpose of sexual gratification. The
pretrial investigation report indicated that the defendant had a criminal history of two counts of
driving on a suspended license and possession of liquor in public by a minor. He was 43 years old
and lived with his wife in Arthur, Illinois, along with their eight children, four of whom were
minors.
¶5 On October 16, 2023, the defendant was arrested, and the State filed a timely petition to
deny defendant pretrial release. The same day, the circuit court held a pretrial detention hearing
wherein, after considering the State’s proffer, which included evidence that the defendant admitted
to prolonged sexual contact with the minor victim, his daughter, over a period of years while she
was under the age of 13 (this admission was corroborated by the victim), and the arguments of
counsel, the circuit court entered a written order of detention. We note further that the order was
entered after the circuit court considered and heard argument from the defendant’s counsel
regarding a pretrial risk assessment which indicated that the defendant was estimated to have a
low risk of failure if allowed pretrial release.
¶6 In the order, the circuit court found by clear and convincing evidence that (1) the proof was
evident or the presumption great that defendant had committed a qualifying offense; (2) defendant
posed a real and present threat to the safety of any person or persons in the community, based upon
2 the specific articulable facts of the case; and (3) no conditions could mitigate the real and present
threat to safety. Specifically, the circuit court found that less restrictive conditions would not assure
the safety of others due to the following facts: the nature of the charges, which were “predatory
criminal sexual assault, Non probationable if convicted”; the sex offense involved minor children
and that minor children lived in the home the defendant would return to; the alleged victim was
“very young & unable to protect herself” and “reluctant to report if/when inappropriate conduct
occurs”; and that the conduct occurred over a period of time and was not reported, therefore, there
are “concerns about potential victims & ability to report.”
¶7 The defendant timely filed a notice of appeal later that day. We now turn to our analysis
and additional facts will be included below where necessary.
¶8 II. ANALYSIS
¶9 In his notice of appeal, the defendant raises three challenges to the trial court’s findings.
First, that the State failed to meet its burden of proving the defendant dangerous in that he poses a
real and present threat to the safety of others and the community. Second, that the State failed to
meet its burden of proving that no condition or conditions can mitigate that threat or defendant’s
willful flight. Third, that no condition or conditions would reasonably ensure the appearance of
the defendant for later hearings or prevent defendant from being charged with a subsequent felony
or Class A misdemeanor, and that the State met its burden in proving that no condition(s) can
mitigate the threat posed.
¶ 10 “We have historically reviewed bail appeals under Illinois Supreme Court Rule
604(c)(1) (eff. Sept. 18, 2023) using an abuse of discretion standard. People v. Simmons,
2019 IL App (1st) 191253, ¶ 9, 143 N.E.3d 833. ‘An abuse of discretion occurs when the
circuit court’s decision is “arbitrary, fanciful or unreasonable,” or where “no reasonable
3 person would agree with the position adopted by the [circuit] court.” ’ Simmons, 2019 IL
App (1st) 191253, ¶ 9 (quoting People v. Becker, 239 Ill. 2d 215, 234, 940 N.E.2d 1131,
1142 (2010)); see People v. Johnson, 2019 IL App (3d) 190582, ¶ 8, 147 N.E.3d 756 (‘We
will review the decision of the [circuit] court [on a motion for review under Rule 604(c)]
for an abuse of discretion.’).
Rule 604(h), as amended due to the Act, provides a new procedure for these
appeals. See Ill. S. Ct. R. 604(h) (eff. Sept. 18, 2023). But the Act neither mandates nor
suggests a different standard of review. A defendant appealing under Rule 604(h) may
claim the State failed to fulfill its burden by ‘clear and convincing evidence.’ See Ill. S. Ct.
R. 604(h)(1)(iii) (eff. Sept. 18, 2023). However, we are not reviewing the State’s evidence
anew. Instead, we are reviewing the circuit court’s evaluation of that evidence for an abuse
of discretion. ‘[W]e will not substitute our own judgment for the trier of fact on issues
regarding the weight of the evidence or the credibility of the witnesses.’ People v. Vega,
2018 IL App (1st) 160619, ¶ 44, 123 N.E.3d 393. Under the Code, the circuit court was
invested with the responsibility to consider the various factors listed in section 110-6.1(g)
(real and present danger), as well as those in section 110-6.1(a)(1)-(8) (feasibility of less
restrictive conditions) before finding detention to be appropriate. ‘[I]n reviewing the circuit
court’s ruling for an abuse of discretion, we will not substitute our judgment for that of the
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2023 IL App (5th) 230940-U NOTICE NOTICE Decision filed 12/12/23. The This order was filed under text of this decision may be NO. 5-23-0940 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the
Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Douglas County. ) v. ) No. 23-CF-199 ) ERVIN F. PLANK, ) Honorable ) Kate D. Watson, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court. Justices Welch and Cates concurred in the judgment.
ORDER
¶1 Held: The circuit court’s order detaining the defendant was not an abuse of discretion where the circuit court’s determinations were not unreasonable or arbitrary.
¶2 The defendant, Ervin F. Plank, appeals the circuit court of Douglas County’s October 16,
2023, order regarding the defendant’s pretrial release pursuant to Public Act 101-642 (eff. Jan. 1,
2023), commonly known as the Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act
(Act).1 See Pub. Acts 101-652, § 10-255, 102-1104, § 70 (eff. Jan. 1, 2023); Rowe v. Raoul, 2023
IL 129248, ¶ 52 (lifting stay and setting effective date as September 18, 2023).
1 The Act has been sometimes referred to as the “SAFE-T Act” or the “Pretrial Fairness Act.” Neither name is official, as neither appears in the Illinois Compiled Statutes or the public act. See Rowe v. Raoul, 2023 IL 129248, ¶ 4 n.1. 1 ¶3 I. BACKGROUND
¶4 On October 13, 2023, the defendant was charged by information with six counts, including
two counts of predatory criminal sexual assault of a child (a Class X felony (720 ILCS 5/11-1.40(b)
(West 2022)), which has a maximum penalty of 60 years’ incarceration), two counts of criminal
sexual assault, and two counts of aggravated criminal sexual abuse, committed over a four-year
period between June 1, 2010, and April 15, 2014. The information charged the defendant with
placing his penis in the mouth and vagina of the minor for the purpose of sexual gratification. The
pretrial investigation report indicated that the defendant had a criminal history of two counts of
driving on a suspended license and possession of liquor in public by a minor. He was 43 years old
and lived with his wife in Arthur, Illinois, along with their eight children, four of whom were
minors.
¶5 On October 16, 2023, the defendant was arrested, and the State filed a timely petition to
deny defendant pretrial release. The same day, the circuit court held a pretrial detention hearing
wherein, after considering the State’s proffer, which included evidence that the defendant admitted
to prolonged sexual contact with the minor victim, his daughter, over a period of years while she
was under the age of 13 (this admission was corroborated by the victim), and the arguments of
counsel, the circuit court entered a written order of detention. We note further that the order was
entered after the circuit court considered and heard argument from the defendant’s counsel
regarding a pretrial risk assessment which indicated that the defendant was estimated to have a
low risk of failure if allowed pretrial release.
¶6 In the order, the circuit court found by clear and convincing evidence that (1) the proof was
evident or the presumption great that defendant had committed a qualifying offense; (2) defendant
posed a real and present threat to the safety of any person or persons in the community, based upon
2 the specific articulable facts of the case; and (3) no conditions could mitigate the real and present
threat to safety. Specifically, the circuit court found that less restrictive conditions would not assure
the safety of others due to the following facts: the nature of the charges, which were “predatory
criminal sexual assault, Non probationable if convicted”; the sex offense involved minor children
and that minor children lived in the home the defendant would return to; the alleged victim was
“very young & unable to protect herself” and “reluctant to report if/when inappropriate conduct
occurs”; and that the conduct occurred over a period of time and was not reported, therefore, there
are “concerns about potential victims & ability to report.”
¶7 The defendant timely filed a notice of appeal later that day. We now turn to our analysis
and additional facts will be included below where necessary.
¶8 II. ANALYSIS
¶9 In his notice of appeal, the defendant raises three challenges to the trial court’s findings.
First, that the State failed to meet its burden of proving the defendant dangerous in that he poses a
real and present threat to the safety of others and the community. Second, that the State failed to
meet its burden of proving that no condition or conditions can mitigate that threat or defendant’s
willful flight. Third, that no condition or conditions would reasonably ensure the appearance of
the defendant for later hearings or prevent defendant from being charged with a subsequent felony
or Class A misdemeanor, and that the State met its burden in proving that no condition(s) can
mitigate the threat posed.
¶ 10 “We have historically reviewed bail appeals under Illinois Supreme Court Rule
604(c)(1) (eff. Sept. 18, 2023) using an abuse of discretion standard. People v. Simmons,
2019 IL App (1st) 191253, ¶ 9, 143 N.E.3d 833. ‘An abuse of discretion occurs when the
circuit court’s decision is “arbitrary, fanciful or unreasonable,” or where “no reasonable
3 person would agree with the position adopted by the [circuit] court.” ’ Simmons, 2019 IL
App (1st) 191253, ¶ 9 (quoting People v. Becker, 239 Ill. 2d 215, 234, 940 N.E.2d 1131,
1142 (2010)); see People v. Johnson, 2019 IL App (3d) 190582, ¶ 8, 147 N.E.3d 756 (‘We
will review the decision of the [circuit] court [on a motion for review under Rule 604(c)]
for an abuse of discretion.’).
Rule 604(h), as amended due to the Act, provides a new procedure for these
appeals. See Ill. S. Ct. R. 604(h) (eff. Sept. 18, 2023). But the Act neither mandates nor
suggests a different standard of review. A defendant appealing under Rule 604(h) may
claim the State failed to fulfill its burden by ‘clear and convincing evidence.’ See Ill. S. Ct.
R. 604(h)(1)(iii) (eff. Sept. 18, 2023). However, we are not reviewing the State’s evidence
anew. Instead, we are reviewing the circuit court’s evaluation of that evidence for an abuse
of discretion. ‘[W]e will not substitute our own judgment for the trier of fact on issues
regarding the weight of the evidence or the credibility of the witnesses.’ People v. Vega,
2018 IL App (1st) 160619, ¶ 44, 123 N.E.3d 393. Under the Code, the circuit court was
invested with the responsibility to consider the various factors listed in section 110-6.1(g)
(real and present danger), as well as those in section 110-6.1(a)(1)-(8) (feasibility of less
restrictive conditions) before finding detention to be appropriate. ‘[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.” ’ Simmons, 2019 IL App (1st) 191253, ¶ 15 (quoting People v. Cox, 82 Ill. 2d
268, 280, 412 N.E.2d 541, 547 (1980)).” People v. Inman, 2023 IL App (4th) 230864,
¶¶ 10-11.
4 ¶ 11 The defendant’s first claim is that “[t]he State failed to meet its burden of proving by clear
and convincing evidence that defendant poses 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.” The defendant
explains his position by stating, “THE STATE PRESENTED ONLY THE 6-COUNT
INFORMATION, AND LIMITED TESTIMONY ABOUT DCFS SAFETY PLAN. ARGUED
THAT THE OFFENSES CHARGED THEMSELVES WARRANTED DENIAL OF
PTRETRIAL [sic] RELEASE. MOST RECENT OFFENSE CHARGED IS ALMOST 10 YEARS
OLD, WITH NO CONDUCT ALLEGED SINCE.”
¶ 12 Under section 110-6.1(g) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS
5/110-6.1(g) (West 2022)), the trial court is provided with several factors to consider in making its
decision regarding a defendant’s dangerousness. The trial court then analyzes those factors within
the context of the specific facts of the case. Again, we review whether the trial court properly
considered one of the factors under the abuse of discretion standard. Inman, 2023 IL App (4th)
230864, ¶ 11. As a result, “in 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.’ ” People v. Simmons, 2019 IL App (1st) 191253, ¶ 15
(quoting People v. Cox, 82 Ill. 2d 268, 280 (1980)).
¶ 13 One of the factors listed in the statute is “whether the offense is a crime of violence,
involving a weapon, or a sex offense.” (Emphasis added.) 725 ILCS 5/110-6.1(g)(1) (West 2022).
Here, the offense is a sex offense, more specifically, predatory criminal sexual assault of a child.
The factors for determining whether the defendant poses a real and present threat to any person
are not limited to the factors listed above. As such, the following findings were also considered as
a basis for denying defendant pretrial release: (1) other minor children live in the home that
5 defendant would return to, (2) the alleged victim was very young and unable to protect herself,
and (3) the conduct occurred over a long period of time and was not reported.
¶ 14 The defendant contends that outside of the recent sexual assault charges the defendant does
not have a significant criminal history and the alleged crimes took place nearly 10 years prior
without allegations of any recent wrongdoing. Thus, essentially, the defendant asks us to reweigh
the evidence and substitute our judgment for that of the circuit courts, which we will not do. See
Simmons, 2019 IL App (1st) 191253, ¶ 15 (quoting Cox, 82 Ill. 2d at 280). Based upon the evidence
put forth by the State contained in our record, specifically, that the defendant admitted to sexually
assaulting his own preteen daughter over the course of four years, we do not find that the trial
court’s dangerousness determination is “arbitrary, fanciful, or unreasonable, or where no
reasonable person would agree with the decision.”
¶ 15 The defendant’s second and third claims regarding the State’s failure to meet its burden
regarding available conditions and release suffer the same fate. In reaching its determination as to
these matters, the trial court must consider: (1) the nature and circumstances of the offense
charged; (2) the weight of the evidence against the defendant; (3) the history and characteristics of
the defendant; (4) the nature and seriousness of the specific, real and present threat to any person
that would be posed by the defendant’s release; and (5) the nature and seriousness of the risk of
obstructing or attempting to obstruct the criminal justice process. 725 ILCS 5/110-5(a) (West
2022). The statute lists no singular factor as dispositive. Id.
¶ 16 As previously stated in our analysis of the defendant’s first claim, the trial court found that
a variety of factors supported denial of pretrial release instead of imposing release with certain
conditions. The record does not refute this. Therefore, in light of our review of the record, we find
that the trial court’s findings were not unreasonable, arbitrary, or fanciful. The record demonstrates
6 that the trial court contemplated possible conditions that could have been ordered but decided that
given that the defendant could “come and go from the residence” where minor children reside; that
DCFS had in place a “very loose” safety plan that allowed the defendant access to minor children
in a private setting; the alleged crimes went unreported for years; the alleged victim was very
young and unable to report; that ultimately these acts occurred in the family home, and were
perpetrated against his own child; and that four minors continue to reside at that residence, these
conditions were not viable.
¶ 17 Additionally, while we acknowledge the defendant’s argument that his pretrial risk
assessment may have indicated that the use of pretrial conditions was estimated to have a low risk
of failure, this estimate does not interfere with a circuit court’s ability to deny defendant pretrial
release. In determining the conditions of pretrial release, the Code states that “[t]he court may use
a regularly validated risk assessment tool to aid its determination of appropriate conditions of
release.” (Emphasis added.) Id. § 110-5(b). The use of such a tool is not a requirement, and an
estimated low risk shall not be determinative. As expressly stated on page five of the applicable
pretrial risk assessment instrument used in this matter, “This assessment is not intended to interfere
with judicial decision making but rather to offer information about how other defendants who
scored similarly succeeded while on pretrial release.” Therefore, we reiterate that where a risk
assessment indicates a lower risk for failure of someone in a similar situation as a defendant for
the assessment factors used, circuit judges are able to use their discretion and make their own
decision based on the facts of the case presented.
¶ 18 III. CONCLUSION
¶ 19 For the foregoing reasons, we find that the trial court did not abuse its discretion in its
issuance of the October 16, 2023, order detaining the defendant.
7 ¶ 20 Affirmed.