NOTICE 2023 IL App (4th) 230918-U This Order was filed under FILED Supreme Court Rule 23 and is December 15, 2023 NO. 4-23-0918 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Sangamon County KAITLYNN R. RUSSELL, ) No. 22CF602 Defendant-Appellant. ) ) Honorable ) Ryan M. Cadagin, ) Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court. Justices Doherty and Lannerd concurred in the judgment.
ORDER
¶1 Held: The circuit court abused its discretion in granting the State’s verified petition to deny defendant pretrial release.
¶2 Defendant, Kaitlynn R. Russell, appeals the circuit court’s order denying her
pretrial release under article 110 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS
5/art. 110 (West 2022)), as amended by Public Act 101-652, § 10-255 (eff. Jan. 1, 2023),
commonly known as the Safety, Accountability, Fairness and Equity-Today Act (Act). See Pub.
Act 102-1104, § 70 (eff. Jan. 1, 2023) (amending various provisions of the Act); Rowe v. Raoul,
2023 IL 129248, ¶ 52 (setting the Act’s effective date as September 18, 2023). Defendant argues
the court abused its discretion in finding the State proved by clear and convincing evidence she posed a real and present threat to the safety of any person or the community that could not be
mitigated by a condition or combination of conditions of pretrial release. We agree and reverse
and remand.
¶3 I. BACKGROUND
¶4 On June 15, 2022, defendant was charged with multiple counts for the death of a
two-year-old child that occurred while the child was in defendant’s care. The charges included
four counts of endangering the life or health of a child (720 ILCS 5/12C-5 (West 2022); id.
§ (a)(2)), and two counts of reckless conduct (id. §§ 12-5(a)(1), (2)). According to the charges,
defendant failed to supervise the child and failed to seek prompt medical treatment after
discovering the child face down in a bathtub.
¶5 Six days later, the circuit court set bond for defendant at $500,000.
¶6 In December 2022, defendant filed a request for pretrial release under the Act.
Defendant asserted none of the charged offenses were detainable offenses under section 6.1 of
the Code (725 ILCS 5/110-6.1 (West 2022)). Defendant further asserted there were no risk
factors that would “give cause for continued detention.”
¶7 On September 18, 2023, the State filed a verified petition to deny defendant
pretrial release. In its petition, the State sought defendant’s continued detention based on section
6.1(a)(6) of the Code (id. § 6.1(a)(6)) in that defendant was charged with felony child
endangerment and the State maintained defendant’s pretrial release posed a real and present
threat to the safety of any person or persons or the community. The State listed the following as
the factual basis in support of its petition:
“[O]n or about January 12, 2022, *** the defendant *** was
babysitting 2 year old P.G. at the defendant’s home. That while in
-2- the care of defendant, P.G. was found in a bathtub filled with
water. The defendant eventually drove the minor to the hospital
where she was ultimately declared deceased after life-saving
measures were attempted. During the course of the investigation,
the defendant gave multiple versions of events leading up to P.G.
being presented to the hospital. However, the defendant admitted
that she was not supervising the child and did not realize she had
gotten into the bathtub filled with water. An autopsy was
performed and Dr. Patterson opined that the cause of death was
drowning while left unattended.”
According to the State, it was aware of no criminal history of defendant.
¶8 A hearing was held that day on the State’s petition. At the hearing, the circuit
court initially asked defendant if she wanted to proceed on the motion for pretrial release she
filed in December 2022 under the Act when an order to detain her would foreclose any “way to
bond out.” Defendant stated she wanted to proceed with her motion for pretrial release.
¶9 In support of its petition, the State noted there were other children in defendant’s
home when the victim drowned, as defendant was also babysitting others. The State alleged,
based on the felony offense and the fact a child died while in her care, defendant posed a serious
threat to “children in the community if [she] were ever to find herself in a supervisory role of
them.”
¶ 10 Defense counsel countered the State had the burden of proving by clear and
convincing evidence no other condition of release or combination of conditions could mitigate
the risk posed. Counsel argued defendant had been a resident of the community for quite some
-3- time and had “little to [no]” criminal history and the circuit court could place conditions
restricting defendant’s access to children. Defense counsel argued this is not an instance where
her “client [was] going out on the street and taking children and watching them.”
¶ 11 At the conclusion of the hearing, the circuit court granted the State’s petition,
finding “by clear and convincing evidence that the dangerousness standard has been met.” The
court relied on the “nature and circumstances of the offense charged[ ] [and] the age of the
victim or complaining witness.” Defendant was remanded to the custody of the sheriff and the
trial date was set for March 2024.
¶ 12 This appeal followed.
¶ 13 II. ANALYSIS
¶ 14 On appeal, defendant argues the circuit court abused its discretion by finding she
poses a real and present threat to the safety of any persons or the community, in that the State
presented no evidence or argument showing defendant was a real and present threat to anyone’s
safety. Defendant further argues the State failed to prove by clear and convincing evidence that
threat could not be mitigated by a condition or combination of conditions of pretrial release.
¶ 15 The Code presumes all defendants are eligible for pretrial release with conditions.
“[A] defendant is entitled to release on personal recognizance on the condition that the defendant
attend all required court proceedings and the defendant does not commit any criminal offense,
and complies with all terms of pretrial release ***.” 725 ILCS 5/110-2(a) (West 2022). A circuit
court may deny pretrial release only when a defendant is charged with an offense set forth in
section 110-6.1 of the Code and after a hearing under that same section. Id.
¶ 16 Before pretrial release may be denied under section 110-6.1(a), the State must
prove by clear and convincing evidence “the defendant poses a real and present threat to the
-4- safety of any person or persons or the community, based on the specific articulable facts of the
case ***” and “no condition or combination of conditions set forth in subsection (b) of Section
110-10 of this Article can mitigate (i) the real and present threat to the safety of any person or
persons or the community.” Id. § 6.1(e)(2), (3)(i). Factors to be considered by a circuit court in
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NOTICE 2023 IL App (4th) 230918-U This Order was filed under FILED Supreme Court Rule 23 and is December 15, 2023 NO. 4-23-0918 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Sangamon County KAITLYNN R. RUSSELL, ) No. 22CF602 Defendant-Appellant. ) ) Honorable ) Ryan M. Cadagin, ) Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court. Justices Doherty and Lannerd concurred in the judgment.
ORDER
¶1 Held: The circuit court abused its discretion in granting the State’s verified petition to deny defendant pretrial release.
¶2 Defendant, Kaitlynn R. Russell, appeals the circuit court’s order denying her
pretrial release under article 110 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS
5/art. 110 (West 2022)), as amended by Public Act 101-652, § 10-255 (eff. Jan. 1, 2023),
commonly known as the Safety, Accountability, Fairness and Equity-Today Act (Act). See Pub.
Act 102-1104, § 70 (eff. Jan. 1, 2023) (amending various provisions of the Act); Rowe v. Raoul,
2023 IL 129248, ¶ 52 (setting the Act’s effective date as September 18, 2023). Defendant argues
the court abused its discretion in finding the State proved by clear and convincing evidence she posed a real and present threat to the safety of any person or the community that could not be
mitigated by a condition or combination of conditions of pretrial release. We agree and reverse
and remand.
¶3 I. BACKGROUND
¶4 On June 15, 2022, defendant was charged with multiple counts for the death of a
two-year-old child that occurred while the child was in defendant’s care. The charges included
four counts of endangering the life or health of a child (720 ILCS 5/12C-5 (West 2022); id.
§ (a)(2)), and two counts of reckless conduct (id. §§ 12-5(a)(1), (2)). According to the charges,
defendant failed to supervise the child and failed to seek prompt medical treatment after
discovering the child face down in a bathtub.
¶5 Six days later, the circuit court set bond for defendant at $500,000.
¶6 In December 2022, defendant filed a request for pretrial release under the Act.
Defendant asserted none of the charged offenses were detainable offenses under section 6.1 of
the Code (725 ILCS 5/110-6.1 (West 2022)). Defendant further asserted there were no risk
factors that would “give cause for continued detention.”
¶7 On September 18, 2023, the State filed a verified petition to deny defendant
pretrial release. In its petition, the State sought defendant’s continued detention based on section
6.1(a)(6) of the Code (id. § 6.1(a)(6)) in that defendant was charged with felony child
endangerment and the State maintained defendant’s pretrial release posed a real and present
threat to the safety of any person or persons or the community. The State listed the following as
the factual basis in support of its petition:
“[O]n or about January 12, 2022, *** the defendant *** was
babysitting 2 year old P.G. at the defendant’s home. That while in
-2- the care of defendant, P.G. was found in a bathtub filled with
water. The defendant eventually drove the minor to the hospital
where she was ultimately declared deceased after life-saving
measures were attempted. During the course of the investigation,
the defendant gave multiple versions of events leading up to P.G.
being presented to the hospital. However, the defendant admitted
that she was not supervising the child and did not realize she had
gotten into the bathtub filled with water. An autopsy was
performed and Dr. Patterson opined that the cause of death was
drowning while left unattended.”
According to the State, it was aware of no criminal history of defendant.
¶8 A hearing was held that day on the State’s petition. At the hearing, the circuit
court initially asked defendant if she wanted to proceed on the motion for pretrial release she
filed in December 2022 under the Act when an order to detain her would foreclose any “way to
bond out.” Defendant stated she wanted to proceed with her motion for pretrial release.
¶9 In support of its petition, the State noted there were other children in defendant’s
home when the victim drowned, as defendant was also babysitting others. The State alleged,
based on the felony offense and the fact a child died while in her care, defendant posed a serious
threat to “children in the community if [she] were ever to find herself in a supervisory role of
them.”
¶ 10 Defense counsel countered the State had the burden of proving by clear and
convincing evidence no other condition of release or combination of conditions could mitigate
the risk posed. Counsel argued defendant had been a resident of the community for quite some
-3- time and had “little to [no]” criminal history and the circuit court could place conditions
restricting defendant’s access to children. Defense counsel argued this is not an instance where
her “client [was] going out on the street and taking children and watching them.”
¶ 11 At the conclusion of the hearing, the circuit court granted the State’s petition,
finding “by clear and convincing evidence that the dangerousness standard has been met.” The
court relied on the “nature and circumstances of the offense charged[ ] [and] the age of the
victim or complaining witness.” Defendant was remanded to the custody of the sheriff and the
trial date was set for March 2024.
¶ 12 This appeal followed.
¶ 13 II. ANALYSIS
¶ 14 On appeal, defendant argues the circuit court abused its discretion by finding she
poses a real and present threat to the safety of any persons or the community, in that the State
presented no evidence or argument showing defendant was a real and present threat to anyone’s
safety. Defendant further argues the State failed to prove by clear and convincing evidence that
threat could not be mitigated by a condition or combination of conditions of pretrial release.
¶ 15 The Code presumes all defendants are eligible for pretrial release with conditions.
“[A] defendant is entitled to release on personal recognizance on the condition that the defendant
attend all required court proceedings and the defendant does not commit any criminal offense,
and complies with all terms of pretrial release ***.” 725 ILCS 5/110-2(a) (West 2022). A circuit
court may deny pretrial release only when a defendant is charged with an offense set forth in
section 110-6.1 of the Code and after a hearing under that same section. Id.
¶ 16 Before pretrial release may be denied under section 110-6.1(a), the State must
prove by clear and convincing evidence “the defendant poses a real and present threat to the
-4- safety of any person or persons or the community, based on the specific articulable facts of the
case ***” and “no condition or combination of conditions set forth in subsection (b) of Section
110-10 of this Article can mitigate (i) the real and present threat to the safety of any person or
persons or the community.” Id. § 6.1(e)(2), (3)(i). Factors to be considered by a circuit court in
determining dangerousness include the following:
“(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
including:
(A) Any evidence of the defendant’s prior criminal history
indicative of violent, abusive or assaultive behavior, or lack of
such behavior. ***
(B) Any evidence of the defendant’s psychological,
psychiatric or other similar social history which tends to indicate a
violent, abusive, or assaultive nature, or lack of any such history.
(3) The identity of any person or persons to whose safety
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 them.
(5) The age and physical condition of the defendant.
(6) The age and physical condition of any victim or
-5- complaining witness.
(7) Whether the defendant is known to possess or have
access to any weapon or weapons.
(8) Whether, at the time of the current offense or any other
offense or arrest, the defendant was on probation, parole, aftercare
release, mandatory supervised release or other release ***.
(9) Any other factors *** deemed by the court to have a
reasonable bearing upon the defendant’s propensity or reputation
for violent, abusive, or assaultive behavior, or lack of such
behavior.” Id. § 110-6.1(g).
¶ 17 We review a decision denying pretrial release under the Act under an
abuse-of-discretion standard. See People v. Inman, 2023 IL App (4th) 230864, ¶¶ 10-11. This
court will find an abuse of discretion occurred when we find the decision regarding pretrial
release is unreasonable, arbitrary, or fanciful or when we find no reasonable person would agree
with the circuit court’s decision. Id. ¶ 10.
¶ 18 We find the circuit court’s decision to detain defendant to be an abuse of
discretion. The State’s evidence falls far short of the clear-and-convincing standard. There are no
“specific articulable facts” (725 ILCS 6.1(g) (West 2022)) showing defendant to be a danger to
children or the community. The only allegation showing she may be such a threat is the State’s
acknowledgement at the detention hearing she would be a danger “if” (emphasis added) children
were placed in her care. However, as defense counsel argued before the circuit court, such
danger could be mitigated by a condition of release, such as an order barring her from providing
childcare. The State has presented no evidence showing this condition would not mitigate the
-6- general alleged threat to the community. There is no evidence defendant has failed to comply
with similar conditions in the past. The State’s own verified petition indicates it is not aware of
any criminal history for defendant. As there is no evidence, much less clear and convincing
evidence, establishing “no condition or combination of conditions set forth in subsection (b) of
Section 110-10 of this Article can mitigate (i) the real and present threat to the safety of any
person or persons or the community” (725 ILCS 5/110-6.1(e) (3)(i) (West 2022)), the detention
order is an abuse of discretion.
¶ 19 III. CONCLUSION
¶ 20 We reverse the circuit court’s judgment and remand for a hearing to determine
conditions for defendant’s pretrial release.
¶ 21 Reversed and remanded.
-7-