People v. Shannon

2024 IL App (5th) 231051, 230 N.E.3d 844

• Court: Appellate Court of Illinois
• Decided: January 25, 2024
• Docket: 5-23-1051
• Status: Published

Opinion

2024 IL App (5th) 231051 NOTICE Decision filed 01/25/24. The text of this decision may be NO. 5-23-1051 changed or corrected prior to the filing of a Petition for IN THE Rehearing or the disposition of the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) No. 22-CF-1583 ) BRANDEN L. SHANNON, ) Honorable ) John J. O’Gara, Defendant-Appellant. ) Judge, presiding. _____________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court, with opinion. Justice Boie concurred in the judgment and opinion. Presiding Justice Vaughan dissented, with opinion.

OPINION

¶1 The defendant, Branden L. Shannon, appeals the trial court’s written order of October 20,

2023, denying the defendant’s 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). 1 See Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023) (further amending various provisions

of the Act); Rowe v. Raoul, 2023 IL 129248, ¶ 52 (lifting stay and setting effective date as

September 18, 2023). Because the defendant was arrested and detained prior to the date the Act

went into effect, this appeal presents a narrow issue relevant to only those defendants who were

1 The Act has been 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 public act. See Rowe v. Raoul, 2023 IL 129248, ¶ 4 n.1. 1 arrested and detained prior to the effective date of the Act. For the following reasons, we vacate

the circuit court’s detention order of October 20, 2023. 2

¶2 I. BACKGROUND

¶3 On October 14, 2022, the defendant was charged by information with one count of

unlawful possession with the intent to deliver methamphetamine, a Class X felony, and one count

of unlawful possession with the intent to deliver cannabis, a Class 3 felony. On the same date, a

warrant of arrest was issued for the defendant, and his bail was set at $100,000, with 10% to apply

and no additional conditions of release. The defendant was arrested and detained, and he remained

in pretrial detention.

¶4 On September 12, 2023, six days before the Act became effective, the State filed a verified

petition to deny defendant pretrial release pursuant to section 110-6.1 of the Code of Criminal

Procedure of 1963 (Code) (725 ILCS 5/110-6.1 (West 2022)). The defendant did not file a motion

requesting a hearing to have his monetary condition of bail removed.

¶5 The State’s petition was called for hearing on October 20, 2023. The defendant’s counsel

did not object to the filing of the petition.

¶6 At the beginning of the hearing, the following discussion occurred:

“THE COURT: We’re on the record, then, in 22-CF-1583, People of the State of

Illinois versus Branden Shannon. Present today on behalf of the People, Assistant State’s

Attorney Tatiyana Rodriquez. Present today on behalf of Mr. Shannon, Mr. Dennis Hatch,

Attorney at Law. And Mr. Branden Shannon is present in open court.

Pursuant to Illinois Supreme Court Rule 604(h)(5) (eff. Dec. 7, 2023), our decision in this case 2

was due on or before January 22, 2024, absent a finding of good cause for extending the deadline. Based on the high volume of appeals under the Act currently under the court’s consideration, as well as the complexity of issues and the lack of precedential authority, we find there to be good cause for extending the deadline. 2 The matter comes before the Court today on the People’s verified petition for

pretrial detention which they filed on September 12, 2023. And I guess your request, Mr.

Hatch is, of course, for your client to be released on conditions.

MR. HATCH: Yes.

THE COURT: And so we’re going to conduct this hearing today pursuant to the

Pretrial Fairness Act.”

¶7 At the conclusion of the hearing, the circuit court entered an order denying the defendant

pretrial release. The defendant filed a timely notice of appeal on November 2, 2023.

¶8 II. ANALYSIS

¶9 On appeal, the defendant argues, inter alia , that the circuit court erred when it granted the

State’s petition to detain him because the State did not have the authority to file a petition to deny

pretrial release due to the timing requirements of section 110-6.1(c)(1) (id. § 110-6.1(c)(1)). The

defendant acknowledges that his attorney did not object to the State’s petition and that this claim

of error was not raised in his notice of appeal. The defendant seeks review of the claimed error

under the second prong of the plain-error doctrine. Under the second prong of plain-error review,

a reviewing court may consider a forfeited error when the error is so serious that it deprives the

defendant of a substantial right. People v. Herron, 215 Ill. 2d 167, 170 (2005).

¶ 10 On appeal, the State argues that the defendant’s request that he be released in response to

the court’s question at the beginning of the hearing on the State’s petition to detain should be

treated as a motion for a hearing under sections 110-5 and 110-7.5(b). 725 ILCS 5/110-5, 110-

7.5(b) (West 2022).

¶ 11 After reviewing the intradistrict split created by People v. Presley, 2023 IL App (5th)

230970, we follow our prior decisions and precedent in People v. Rios, 2023 IL App (5th) 230724,

3 People v. Vingara, 2023 IL App (5th) 230698, People v. Swan, 2023 IL App (5th) 230766, People

v. Mosley, 2023 IL App (5th) 230823-U, People v. Gurlly, 2023 IL App (5th) 230830-U, and

People v. Scott, 2023 IL App (5th) 230897-U. Accordingly, we will apply second prong plain-

error review, as the defendant’s fundamental right to liberty is affected by a hearing to detain him

until trial when said hearing was not authorized by statute. The Code makes clear on its face that

the intent is to protect a person’s fundamental right to liberty before trial, as set forth below:

“(a) All persons charged with an offense shall be eligible for pretrial release before

conviction. It is presumed that 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 ***.

***

(e) This Section shall be liberally construed to effectuate the purpose of relying on

pretrial release by nonmonetary means to reasonably ensure an eligible person’s

appearance in court, the protection of the safety of any other person or the community, that

the person will not attempt to obstruct the criminal justice process, and the person’s

compliance with all conditions of release ***.” 725 ILCS 5/110-2(a), (e) (West 2022).

¶ 12 This court determined that the plain language of section 110-6.1(c)(1) (id. § 110-6.1(c)(1))

set forth a deadline for the State to file a petition to detain. Specifically, this court determined:

“The State may file a petition to detain at the time of the defendant’s first appearance before

a judge; no prior notice to the defendant is required. Alternatively, the State may file a

petition to detain the defendant within 21 calendar days after the arrest and release of the

defendant; however, reasonable notice is to be provided to the defendant under this

circumstance.” Rios, 2023 IL App (5th) 230724, ¶ 10.

4 ¶ 13 This court went on to find that the exceptions to the above timing requirement set forth in

section 110-6 (725 ILCS 5/110-6 (West 2022)) were not applicable to the defendant since the

defendant had not been released following his arrest and no new offenses had been alleged. Rios,

2023 IL App (5th) 230724, ¶ 12. As such, this court determined in Rios that the State’s petition to

detain pursuant to section 110-6.1 was untimely and that the circuit court did not have the authority

to detain the defendant pursuant to the untimely petition. Id. For the reasons set forth in Rios, we

make the same determination in this matter, and we find that the State’s petition was untimely and

that the circuit court did not have the authority to detain the defendant pursuant to the untimely

petition.

¶ 14 This court, in Rios, went on to find that the defendant fell within section 110-7.5(b) of the

Code (725 ILCS 5/110-7.5(b) (West 2022)), as he was a person who remained in pretrial detention,

on or after January 1, 2023, after having been ordered released with pretrial conditions. Rios, 2023

IL App (5th) 230724, ¶ 14. Section 110-7.5(b) states that such a defendant “shall be entitled to a

hearing under subsection (e) of Section 110-5.” 725 ILCS 5/110-7.5(b) (West 2022). This court

further found that, in reviewing and analyzing sections 110-6.1(c)(1), 110-6, and 110-5(e) (id.

§§ 110-6.1(c)(1), 110-6, 110-5(e)), along with one another and the entire Code, defendants, such

as the defendant in Rios and the defendant in this matter, have the following two options:

“Under sections 110-7.5(b) and 110-5(e), a defendant may file a motion seeking a hearing

to have their pretrial conditions reviewed anew. Alternatively, a defendant may elect to

stay in detention until such time as the previously set monetary security may be paid. A

defendant may elect this option so that they may be released under the terms of the original

bail.” Rios, 2023 IL App (5th) 230724, ¶ 16.

5 ¶ 15 This court came to the above conclusion because, although the plain language of section

110-1.5 of the Code (725 ILCS 5/110-1.5 (West 2022)) abolished the requirement of posting a

monetary bail, it did not eliminate the option to post the previously ordered security, and some

defendants may prefer the second option, as opposed to requesting a hearing. Rios, 2023 IL App

(5th) 230724, ¶ 17. Accordingly, the defendant may elect to stand on his original pretrial condition

to post monetary bail, or he may file a motion for hearing under section 110-5(e).

¶ 16 In this case, the defendant did not file a motion for the removal of the monetary condition

of bail. Defense counsel’s argument that the defendant should be released, made in response to the

State’s petition to detain, does not rise to the level of the defendant making an election to have a

hearing to remove the monetary condition of bail.

¶ 17 We find that the circuit court erred in granting the State’s untimely motion to deny pretrial

release and that the error affected substantial rights of the defendant under the second prong of the

plain-error doctrine. In light of this determination, we need not address the defendant’s remaining

issues on appeal. Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967); People v. Piatkowski, 225 Ill. 2d 551, 564-

65 (2007); Swan, 2023 IL App (5th) 230766, ¶ 26. Accordingly, the detention order issued October

20, 2023, is vacated, and the original bond is reinstated. On remand, defendant may elect to stand

on the terms of his original pretrial conditions—an election that requires no action on his part—or

he may file a motion for a hearing under section 110-5(e). Swan, 2023 IL App (5th) 230766, ¶ 25.

¶ 18 III. CONCLUSION

¶ 19 For the reasons stated, we vacate the circuit court’s order granting the State’s petition to

detain and remand the matter to the court for further proceedings.

¶ 20 Order vacated; cause remanded.

6 ¶ 21 PRESIDING JUSTICE VAUGHAN, dissenting:

¶ 22 Here, the majority applies second prong plain error and finds that “defendant’s fundamental

right to liberty is affected by a hearing to detain him until trial when said hearing was not

authorized by statute” (supra ¶ 11), citing section 110-2(a) and 110-2(e) (725 ILCS 5/110-2(a), (e)

(West 2022)) in support of its finding. I disagree.

¶ 23 First, it is pure speculation that defendant will be detained “until trial.” The Code requires,

when an order of detention is issued pursuant to section 110-6.1(e), as occurred here, “the

defendant shall be brought to trial on the offense for which he is detained within 90 days after the

date on which the order for detention was entered.” Id. § 110-6.1(i). If defendant’s trial does not

occur within that 90-day period, “he shall not be denied pretrial release.” Id. As such, if defendant’s

trial does not occur within 90 days from the date of the detention order, defendant must be provided

pretrial release. Further, once a detention order is issued, “[a]t each subsequent appearance of the

defendant before the court, the judge must find that continued detention is necessary to avoid 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, or to prevent the defendant’s willful flight from prosecution.”

Id. § 110-6.1(i-5).

¶ 24 Second, the issue of second prong plain error was recently addressed in People v. Presley,

2023 IL App (5th) 230970, ¶¶ 27-42. Here, as in Presley, defendant’s claim of error is based on

counsel’s failure to file a motion to strike the State’s petition requesting defendant’s detainment.

As shown in Presley, mere acceptance that an error occurred is insufficient by itself to find second

prong error; the error must “affect the framework within which the trial proceeds.” (Internal

quotation marks omitted.) Id. ¶ 34. The rare instances where second prong error is found are those

necessary to ensure “certain basic, constitutional guarantees” that “define the framework of any

7 criminal trial” are met. (Internal quotation marks omitted.) Id. ¶ 35. In Presley, this court

considered defendant’s rights under both the United States and Illinois Constitutions and found

that defendant’s rights were not violated under either and therefore defendant was not entitled to

relief under second prong plain error. Id. ¶¶ 39-42. In the current case, no additional or novel

argument was presented. As such, I would hold the claimed error is not entitled to second prong

plain error review.

¶ 25 Third, defendant’s claim of ineffective assistance of counsel fares no better. Defendant

raises, in the alternative, a claim of ineffective assistance of counsel due to trial counsel’s failure

to file a motion to strike the State’s petition to deny pretrial release. The United States Supreme

Court previously held “that the right to counsel guaranteed by the Sixth Amendment applies at the

first appearance before a judicial officer at which a defendant is told of the formal accusation

against him and restrictions are imposed on his liberty.” Rothgery v. Gillespie County, 554 U.S.

191, 194 (2008). In the context of the sixth amendment, the United States Supreme Court has held

that the right to assistance of counsel is the right to “effective assistance of competent counsel.”

McMann v. Richardson, 397 U.S. 759, 771 (1970). This level of assistance is evaluated under the

standard addressed in Strickland v. Washington, 466 U.S. 668 (1984), as adopted in People v.

Albanese, 104 Ill. 2d 504, 526 (1984).

¶ 26 “To prevail on a claim of ineffective assistance of counsel [under Strickland], a defendant

must demonstrate that counsel’s performance was deficient and that the deficient performance

prejudiced the defendant.” People v. Cathey, 2012 IL 111746, ¶ 23. “More specifically, a

defendant must show that counsel’s performance was objectively unreasonable under prevailing

professional norms and that there is a ‘reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.’ ” Id. (quoting Strickland, 466 U.S.

8 at 694). A failure to satisfy either Strickland prong “precludes a finding of ineffective assistance

of counsel.” People v. Henderson, 2013 IL 114040, ¶ 11.

¶ 27 The failure to establish prejudice alone is a sufficient basis to deny a claim of ineffective

assistance of counsel. People v. Jackson, 2020 IL 124112, ¶ 91. Here, defendant’s argument

regarding prejudice is infirm. Defendant argues that he was “prejudiced by counsel’s deficiency

because he lost the ability to be released.” In support, he cites Lafler v. Cooper, 566 U.S. 156, 165

(2012), for the proposition that “ineffective assistance of counsel ‘can result in Strickland prejudice

because any amount of [additional] jail time has Sixth Amendment significance.’ ” My review of

Lafler reveals the quoted language stems from Glover v. United States, 531 U.S. 198, 203 (2001),

a case addressing postconviction sentencing. Lafler, 566 U.S. at 165.

¶ 28 Here, we are not dealing with an inaccurate sentencing range to which constitutional right

deprivations are rightfully assigned. 3 While Strickland prejudice is not limited to errors that affect

the fairness of a trial (id. (the Court does not follow “a rigid rule that an otherwise fair trial remedies

errors not occurring at the trial itself”)), the analysis has always focused on the outcome of the

case itself. In Glover, the alleged error of counsel prejudiced defendant because it increased the

ultimate term of imprisonment—i.e., affected the ultimate outcome of the proceedings. Id. at 203-

04.

¶ 29 Another example is Missouri v. Frye, 566 U.S. 134, 145 (2012), which found deficient

performance where the defendant’s trial counsel failed to inform defendant of a plea offer prior to

the lapse of the offer. To establish prejudice in such a situation, defendant must “show a reasonable

3 Although prejudice from ineffective assistance of counsel does not require a constitutional violation (Lafler, 566 U.S. at 166-68), there is no constitutional limitation on when the State may request pretrial detention and an untimely pretrial detention petition does not violate the due process rights afforded under either the state or federal constitutions. No constitutional deprivation is seen as long as a hearing is held to address the necessity of detention. See Gerstein v. Pugh, 420 U.S. 103, 115 (1975); Ill. Const. 1970, art. I, § 9; Rowe v. Raoul, 2023 IL 129248, ¶ 25. 9 probability that the end result of the criminal process would have been more favorable by reason

of a plea to a lesser charge or a sentence of less prison time.” Id. at 147. The defendant’s later

acceptance of a plea deal with less favorable conditions than the offer never provided by counsel

was sufficient to show prejudice. Id. at 148. However, the case was remanded because the

prejudice prong also required the defendant to show a reasonable probability that, if the

prosecution had the discretion to cancel it or the court had the discretion to reject the plea, there

was “a reasonable probability neither the prosecution nor the trial court would have prevented the

offer from being accepted or implemented.” Id.

¶ 30 Similarly, in Lafler, the claim of ineffective assistance stemmed from a plea deal, but unlike

that in Frye, counsel advised the defendant of the plea offer, which included dismissal of some of

the charges and a sentence between 51 and 85 months. Lafler, 566 U.S. at 161. The defendant

accepted the deal but later rejected it because his attorney convinced him that the prosecution

would be unable to establish intent to murder because the victim was shot below the waist. Id. The

prosecution offered a significantly less favorable plea deal on the first day of trial, which was also

rejected. Id. Following a trial, the defendant was convicted and received “a mandatory minimum

sentence of 185 to 360 months’ imprisonment.” Id. On these facts, the parties agreed that trial

counsel’s performance was deficient based on the advice that the defendant could not be convicted

at trial. Id. at 163. The sole issue was how the Strickland prejudice test should be applied. Id. The

Court found that prejudice could be shown “if loss of the plea opportunity led to a trial resulting

in a conviction on more serious charges or the imposition of a more severe sentence.” Id. at 168.

As such, prejudice encompasses instances involving plea bargains and trial counsel’s actions that

undermine the fairness of the outcome of the proceedings.

10 ¶ 31 Similar to Frye and Lafler, other cases that address a claim of prejudice that involve guilty

pleas concern counsel’s error that resulted in the defendant pleading guilty. See Lee v. United

States, 582 U.S. 357, 364 (2017); see also People v. Valdez, 2016 IL 119860, ¶¶ 29-32; People v.

Hughes, 2012 IL 112817, ¶ 63-66; People v. Brown, 2017 IL 121681, ¶¶ 48-52; People v. Hatter,

2021 IL 125981, ¶ 26. To establish prejudice, the defendant must show, but for counsel’s errors,

he would have not pled guilty and would have insisted on going to trial. Hatter, 2021 IL 125981,

¶ 26. In Lee 582 U.S. at 367, the Court stated that a defendant would rarely be able to show

prejudice in this context unless the defendant had a viable defense to assert at trial. However, the

Court noted that the probability of success at trial is not dispositive of the prejudice analysis. Id. It

explained, from the defendant’s perspective, the consequences of a plea are dire and “even the

smallest chance of success at trial may look attractive.” Id. In Lee, counsel erred in failing to inform

the defendant that his plea would result in mandatory deportation. Id. Because the defendant in

Lee established that deportation was a determinative issue for him and his plea would certainly

lead to deportation, he established prejudice where a trial provided the slight chance that he would

be found not guilty and avoid deportation. Id. at 371. While the analysis under these circumstances

is slightly different than that set forth in Strickland, the analysis remains focused on the outcome

of entire proceedings by requiring a showing of viable success at trial or potential avoidance of a

certain consequence by the plea.

¶ 32 The outcome of the proceeding has also been the focus for ineffective assistance of

appellate counsel claims. Smith v. Robbins, 528 U.S. 259, 285 (2000). Under such a claim, the

defendant establishes prejudice if he shows a reasonable probability that, but for appellate

counsel’s error, “he would have prevailed on his appeal.” Id.

11 ¶ 33 Defendant points to no case allowing for a finding of prejudice based solely on the outcome

of a pretrial hearing. As such, I stick to the long-standing principle that prejudice is shown where

the defendant establishes that, “but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694.

¶ 34 This conclusion is further supported by precedent addressing motions to suppress. In order

to succeed on a claim of ineffective counsel in that situation, the defendant establishes prejudice

by showing “a reasonable probability that: (1) the motion would have been granted, and (2) the

outcome of the trial would have been different had the evidence been suppressed.” People v.

Patterson, 217 Ill. 2d 407, 438 (2005) (citing People v. Orange, 168 Ill. 2d 138, 153 (1995)).

Applying this test to the instant circumstances, defendant must show the motion to strike would

have been granted and the outcome of the criminal proceeding would have been different had

defendant been released.

¶ 35 Here, even if I presume the court would have granted the motion, the outcome of the

proceedings has not yet occurred. While it is well established that trial counsel’s pretrial actions

may trigger sixth amendment rights, “[t]he fundamental problem with addressing Strickland

claims prior to trial is that the outcome of the proceeding has not yet been determined.” People v.

Jocko, 239 Ill. 2d 87, 93 (2010). Just as “there is no way to determine if counsel’s errors have

affected an outcome that has not yet occurred” when a premature Krankel hearing is requested,

this court is precluded from engaging in any rational analysis of an event that has yet to occur. Id.

Accordingly, I would deny defendant’s request to find ineffective assistance of counsel and,

instead, find any relief requested pursuant to a claim of ineffective assistance of counsel is

premature at this juncture.

12 ¶ 36 Finally, moving to the merits of the case, defendant’s requested relief in the notice of appeal

was listed as “pretrial release or pretrial release with conditions including, if needed by the court,

electronic monitoring or home detention.” The sole issue raised in the notice of appeal, as to the

trial court’s detention order, was whether the State failed to meet its burden of proving by clear

and convincing evidence that no condition or combination of conditions could mitigate the real

and present threat to the safety of any person(s) or the community, based on the specific articulable

facts of the case, or defendant’s willful flight. 4 In support, defendant stated that “[h]ome

confinement or the imposition of electronic monitoring would mitigate a real or present threat to

the safety of any person or persons or the community if he were released.”

¶ 37 OSAD’s memorandum lists the issues as the State’s failure to prove by clear and

convincing evidence that (1) defendant was a real and present safety threat 5 and (2) no conditions

could mitigate any threat. As to the first issue, defendant contends that, because his charge failed

to involve violence and solely involved selling drugs, that drug trafficking cannot be considered a

form of dangerousness based on the factors the court must consider. See 725 ILCS 5/110-6.1 (West

2022). Because defendant’s argument misrepresents both the facts established in this case and the

law, I disagree.

¶ 38 The statute provides a list of factors for consideration (id. § 110-6.1(g)(1)-(7)), including

“[t]he nature and circumstances of any offense charged”; “[a]ny evidence of the defendant’s prior

criminal history indicative of violent, abusive or assaultive behavior”; whether defendant “is

known to possess or have access to any weapons”; and whether, at the time of the current offense

4 Additional issues listed in the notice of appeal contended the trial court’s imposition of conditions of pretrial release were in error. However, the court did not impose conditions of pretrial release, and therefore, such issues are inapplicable here. 5 While this issue was not listed in defendant’s notice of appeal, the issue was argued by both parties on appeal and, therefore, will be considered. People v. Decaluwe, 405 Ill. App. 3d 256, 264 (2010). 13 or arrest, the defendant “was on probation, parole, aftercare release, mandatory supervised release

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

offense under federal or state law.” Id. § 110-6.1(g)(1), (2)(A), (7), (8). First, defendant points to

no section of the Code that states a defendant charged with unlawful possession with the intent to

deliver methamphetamine, a Class X felony, is not dangerous and is automatically entitled to

pretrial release conditions. Nor is such a finding likely given the legislative purpose of the

Methamphetamine Control and Community Protection Act (720 ILCS 646/1 et seq. (West 2022)),

which states:

“The purpose of this Act is to reduce the damage that the manufacture, distribution,

and use of methamphetamine are inflicting on children, families, communities,

businesses, the economy, and the environment in Illinois. The General Assembly

recognizes that methamphetamine is fundamentally different from other drugs

regulated by the Illinois Controlled Substances Act because the harms relating to

methamphetamine stem not only from the distribution and use of the drug, but also

from the manufacture of the drug in this State. Because methamphetamine is not

only distributed and used but also manufactured here, and because the manufacture

of methamphetamine is extremely and uniquely harmful, the General Assembly

finds that a separate Act is needed to address the manufacture, distribution, and use

of methamphetamine in Illinois.” Id. § 5.

¶ 39 Second, defendant’s argument misrepresents the evidence presented as well as the dialogue

between the State and the court during the hearing. Here, in addition to proffering facts related to

defendant’s admission that the “pills, powder, cannabis, scale and box of sandwich bags in the

satchel” belonged to him, the State also presented defendant’s criminal history to the court. That

14 history included defendant’s most recent 2021 federal conviction for unlawful transport of

firearms, for which he served 36 months in the Bureau of Prisons with 41 months total for

supervised release, as well as a prior conviction for being a felon in possession of a firearm in

2011.

¶ 40 In response to this presentation, the court asked the State if the federal offenses were

prosecuted in the Southern District of Illinois, and the State confirmed they were. The court twice

asked if defendant was on mandatory supervised release from the federal convictions at the time

the offense was committed, and both times the State responded, “I believe so.” The court then

asked if the federal government had “done anything with their case.” The State responded that it

was “not aware of that at this time.” Thereafter, the State also proffered defendant’s two felony

counts in 2009 for aggravated unlawful use of a weapon, a 2003 burglary charge, and a 2003 felony

for receiving/possessing a stolen vehicle. The State argued that, while some of the cases were

older, it established “a repeated and continual pattern of conduct” and that defendant was not going

to comply with any terms of pretrial release given that he was on parole at the time of the offense,

further noting the short length of time between his last release and the current offense. Given the

exchange between the State and the court, I find defendant’s claim that he was found dangerous

solely for the current charge of an intent to deliver methamphetamine is disingenuous, at best. The

dialogue during the hearing reveals the finding of dangerousness was not solely related to an intent

to traffic drugs, and therefore, I would affirm the finding of dangerousness.

¶ 41 As to the second issue, defendant contends the State failed to prove that no condition, or

combination of conditions, would mitigate the real and present threat to the safety of any person,

persons, or the community. However, the trial court focused on defendant’s history and stated,

“He’s on mandatory supervised release at the time that these allegations come forward.” The court

15 continued, “His risk scale is the highest possible level, 12. He got sentenced to 36 to the BOP[6]

back in January 2021, and this happens in May of 2022.” The court stated that the GPS would not

be a deterrent and could not be used for that purpose. The court found that, “based on the proffer,

the evidence, what’s been put before me today, I just do not see that there are conditions—and I

don’t think there are any *** that can mitigate the real and present danger or threat that [defendant]

poses to the community.” The court further stated, “And flowing from that, because of his own—

even his own statements about what happened during this event, less restrictive conditions would

not ensure the safety of the community.” While defendant’s memorandum contends the court could

have implemented conditions that mitigated the threat, the court was well aware of those options

and found them insufficient based on the charges, defendant’s history, and his own statements.

Upon review of the court’s findings, I do not find them to be against the manifest weight of the

evidence, and I do not find, based on the facts presented at trial, that the court’s order of detention

was an abuse of discretion. Accordingly, I would affirm the detention order.

¶ 42 For these reasons, I dissent.

6 “BOP” is an acronym for the Federal Bureau of Prisons. 16 People v. Shannon, 2024 IL App (5th) 231051

Decision Under Review: Appeal from the Circuit Court of St. Clair County, No. 22-CF- 1583; the Hon. John J. O’Gara, Judge, presiding.

Attorneys James E. Chadd, Carolyn Klarquist, and Abigail Hogan Elmer, for of State Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys David J. Robinson, of State’s Attorneys Appellate Prosecutor’s for Office, of Springfield, for the People. Appellee: