People v. Stewart

2024 IL App (4th) 231083-U

• Court: Appellate Court of Illinois
• Decided: January 10, 2024
• Docket: 4-23-1083
• Status: Unpublished

Opinion

NOTICE 2024 IL App (4th) 231083-U This Order was filed under FILED NOS. 4-23-1083, 4-23-1084, 4-23-1085 cons. January 10, 2024 Supreme Court Rule 23 and is Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Winnebago County DEWAYNE STEWART, ) Nos. 22CF2715 Defendant-Appellant. ) 22CF2729 ) 23CF38 ) ) Honorable ) Jennifer J. Clifford, ) Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court. Justices Cavanagh and Lannerd concurred in the judgment.

ORDER

¶1 Held: Defendant did not prove the trial court erred in denying him pretrial release.

¶2 Defendant, Dewayne Stewart, appeals the trial court’s order denying him pretrial

release under article 110 of the of the Code of Criminal Procedure of 1963 (Code) (725 ILCS

5/art.110 (West 2022)), which was recently amended by Public Act 101-652 (eff. Jan. 1, 2023),

commonly known as the Pretrial Fairness Act (Act). Pub Act 101-652, § 10-255 (eff. Jan. 1,

2023); Rowe v. Raoul, 2023 IL 129248, ¶ 52 (resetting the effective date of the Act to September

18, 2023). We affirm.

¶3 I. BACKGROUND

¶4 This appeal involves three separate cases consolidated for appeal. In Winnebago County case No. 22-CF-2715, the State charged defendant with the November 4, 2022,

aggravated domestic battery/strangulation (720 ILCS 5/12-3.3(a-5) (West 2022)) and domestic

battery (id. § 12-3.2(a)(2)) of Alecia Yance and domestic battery of Mahogany Yance (id.

§ 12-3(a)(2)) (appellate court case No. 4-23-1084). In Winnebago County case No. 22-CF-2729,

the State charged defendant with the November 5, 2022, aggravated domestic

battery/strangulation (id. § 12-3.3(a-5)) and domestic battery (id. § 12-3.2(a)(2)) of Jacarrah

Sanders (appellate court case No. 4-23-1083). In Winnebago County case No. 23-CF-38, the

State charged defendant with the December 22, 2022, harassment by telephone of Sanders (id.

§ 26.5-2(a)(2)), asserting defendant intended to threaten to kill Sanders or a member of her

family or household, and the aggravated (id. § 12-3.05(c)) and domestic battery of Sanders (id.

§ 12-3.2(a)(2)) (appellate court case No. 4-23-1085).

¶5 In April 2023, defendant first appeared in custody on the three cases. Bail was set

at $500,000. Defendant remained in custody.

¶6 On October 10, 2023, defendant filed a motion for reconsideration of his pretrial

release conditions. One of the pretrial release conditions defendant sought to change was cash

bail. Defendant asked the trial court to release him with the condition he attend inpatient

substance-abuse treatment at Rosecrance in Champaign, Illinois, where a bed would be available

the next day.

¶7 On October 11, 2023, the trial court held a hearing on defendant’s motion, at

which the State objected to defendant’s pretrial release. At this hearing, defense counsel

emphasized defendant had been in custody since April and defendant had asked for assistance

getting him into treatment since that time. Defense counsel stated defendant was found ineligible

for drug court as he had to register as a sex offender due to a juvenile case. Since that time,

-2- defense counsel obtained a referral for Rosecrance to meet with defendant and a treatment bed at

that facility was available. Defense counsel argued conditions were available to mitigate the real

and present threat to the victims in the cases and the community as defendant would be in an

inpatient treatment facility. Defense counsel emphasized defendant would abide by conditions

such as “pretrial monitor[ing] that he’s there, that reports are sent back to me and/or the Court,”

and conditions of places defendant cannot go and people he cannot contact. When the court

asked how defendant would get to Rosecrance, defense counsel pointed to a woman in the

courtroom and identified her by name and as a friend of defendant.

¶8 Upon permission from the trial court, the State made proffers to support its

objection to defendant’s motion. The State relayed the following information about the three

cases involved in this consolidated appeal:

“So relating to [case No. 22-CF-2715], the State would

proffer that on November 4th of last year in the afternoon, officers

responded to the Gas Depot on South 6th Street in reference to a

domestic battery that occurred on 8th Avenue.

Upon arrival, they spoke with Alicia Yance. Alicia stated

she had a baby approximately five days prior to that date. She

stated that her ex-boyfriend, [defendant], had been threatening to

hurt her since she had her baby. She said he’d been upset since his

girlfriend passed away a few months ago. She *** told [defendant]

to stay away from her baby. Alicia stated that [defendant] got upset

by her saying that and began striking her 10 to 20 times in the

head, arms and chest with a closed fist. She *** attempted to get

-3- up the stairs, but [defendant] then grabbed her by the front of the

neck with one hand and strangled her. She stated she did not lose

consciousness, but her breathing was restricted while [defendant]

was strangling her.

Alicia stated that her sister, Mahogany Yance, came and

interrupted the fight. She said that [defendant] then muffed

Mahogany in the face. Alicia said [defendant] then left. Officer

Roman went and met with the sister ***. She stated she heard

them fighting. She said she was upstairs and looked down the

backstairs where she saw [defendant] strike Alicia more than 10

times in her face and head and pulled her hair. Mahogany said she

interrupted the fight and attempted to push [defendant] off of

Alicia. She said that she too said that [defendant] then muffed her

in the face, then took her phone out of her hand ***.

Related to [case No. 22-CF-2729,] on November 5th, the

next day, 2022, at around noon, Rockford officers responded ***

regarding a report of threatening phone calls to Jacarrah Sanders

from [defendant].

Upon arrival, Jacarrah was on speakerphone with

[defendant]. Officers overheard [defendant] yelling into the phone,

making threatening statements such as, can’t nobody save you

from me. Your residence in Orton Keys is over[. After] Jacarrah

asked him what he was getting lighter fluid for and I bet your shit

-4- be on fire today.

[Defendant] called Jacarrah a couple of times while officers

were present to yell and threaten her. [Defendant] also sent

Jacarrah a picture of lighter fluid next to him in his vehicle.

Jacarrah advised their dispute was ongoing for a few days prior to

that, when [defendant] found a gun belonging to another male in

her residence and took it for himself. Jacarrah advised [defendant]

started the argument again when he was with her that morning by

accusing her of cheating on him. She said he struck her once with

an open hand on the right side of her face. Jacarrah advised that

[defendant] also placed one hand around her neck for less than a

minute, which restricted her breathing. She said he also threatened

to kill her and her baby. Jacarrah advised that she and [defendant]

had been dating since the prior summer.

***

On December 21st, 2022 in the afternoon, Rockford Police

responded to the [residence] of Jacarrah Sanders ***. There they

spoke with her. She explained that she went to the store with her

stepfather, Roderick Mack. She said while she was at the store, her

friend Marquia Booker, who was still at [Jacarrah’s] house ***,

called her. She said that her ex boyfriend, [defendant], then got on

the phone and threatened to shoot her. Jacarrah said that she then

went home and [defendant] came out from the house and

-5- approached her car from the passenger side. She said he grabbed

his right hip like he had a gun and spit in her face.

Officers spoke with Roderick Mack, who stated he picked

up Jacarrah and took her to the store. Roderick said when they

arrived back home, [defendant] exited the house and approached

the vehicle. Roderick said [defendant] threatened to shoot Jacarrah

and lifted his shirt and exposed a black handgun. *** Roderick

advised that [defendant] spit on Jacarrah. Officers also spoke with

Marquia Booker, who advised that she was at that address when

the defendant came inside unannounced through an unlocked back

door. She advised that the defendant pulled a black handgun out

and asked where Jacarrah was. Marquia indicated that she called

Jacarrah and [defendant] spoke to her over the phone and she heard

him threaten to kill her.”

¶9 The State further informed the trial court of an April 2023 traffic stop in which

defendant was found with nearly 30 grams of suspected cannabis, over 1 gram of suspected

cocaine, and ecstasy. Defendant admitted the drugs were his.

¶ 10 The State then argued there were no conditions that would mitigate or prevent

defendant’s pattern of behavior from continuing. The State emphasized the multiple victims of

domestic violence and defendant’s access to weapons, as well as his entering the home of

another with no invitation.

¶ 11 At the close of the hearing, the trial court denied defendant’s motion and ordered

defendant detained. The court found the offenses in the cases were detainable offenses. The court

-6- stressed the existence of independent witnesses to the offenses and found by clear and

convincing evidence the proof was evident the charged crimes occurred. The court further found

the dangerousness standard satisfied by clear and convincing evidence, as the evidence showed

defendant posed a real and present threat not only to those with whom he had romantic

relationships but also those who sought to intercede. The court further found, by clear and

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

present threat. The court stated the following:

“I mean, I’m a big proponent of treatment, but I have no idea

who’s taking him. It’s not a secure facility. There’s been nothing

that’s shown to me that there would be any monitoring of them

except that I just let him out and then who knows what happens. I

don’t know who this person is. The defense hasn’t put on any

information. So all I have is that somebody who is assessed in the

Pretrial Services Risk Assessment is in extremely high risk. And

then on the Domestic Violence Screening Instrument is assessed as

a 19 on a scale that goes from zero to 30, with 11 considered a high

risk, you are a 19. These allegations are serious. They are violent.

They indicate threats of serious harm, they indicate possible having

a handgun, *** using weapons in a threatening way. And then the

request is I just let him out with somebody who’s going to maybe

take him to Champaign, maybe not, to get into treatment.

And he’s not on probation. He’s not on any sort of

-7- monitoring system. Even if I had him reporting to pretrial, the plan

is to have him gone in Champaign, which is a great distance from

here, if he even goes there and this litany of one, two, five different

alleged charges over an extremely long period of time. Perhaps if

there was a better plan or a more reasonable plan, perhaps if he

were on, I don’t know, some way to be monitored, but there is no

way to monitor. But some random person is here and says, oh

yeah, I’m going to take them. And you’ve done these motions in

front of me, and you’ve presented people before [defense counsel],

and you chose not to. I don’t know if this person’s been disclosed

to the State, if they’ve talked to this person. I don’t have anything

from Rosecrance. And it’s not a locked facility. And as we know,

people can just leave from there. And then what?

And with this huge number of offenses—and I’m really

racking my brain trying to think of what conditions that I could put

that would mitigate the risk, but he is a risk. These allegations are

serious. They are extraordinarily dangerous.

So with evidence that I’ve been presented today, I’m not

going to release him.”

¶ 12 On October 18, 2023, defendant filed a notice of appeal in this case as well as a

supporting memorandum under Illinois Supreme Court Rule 604(h) (eff. Sept. 18, 2023).

Defendant’s notice of appeal is a completed form from the Article VI Forms Appendix to the

Illinois Supreme Court Rules (see Ill. S. Ct. R. 606(d) (eff. Sept. 18, 2023)), by which he asks

-8- this court to reverse the order denying pretrial release. The form lists several possible grounds for

appellate relief and directs appellants to “check all that apply and describe in detail.” Defendant

checked four grounds for relief. Under only one, defendant listed details. The first ground for

relief checked by defendant is the State failed to meet its burden of proving by clear and

convincing evidence the proof is evident or the presumption great defendant committed the

offenses charged. No detail or argument is provided on the preprinted lines under this text. The

second ground for relief checked by defendant is the State failed to meet its burden of proving by

clear and convincing evidence defendant poses a real and present threat to the safety of any

person or persons or the community. No detail or argument is provided under this ground. The

third ground for relief checked by defendant is the State failed to meet its burden of proving by

clear and convincing evidence no condition or combination of conditions can mitigate the real

and present threat to the safety of any person or persons or the community. The fourth ground for

relief checked by defendant is he was denied the opportunity for a fair hearing. Under this

preprinted text, defendant provided the following: “The defense believes despite presenting

conditions that would mitigate the real and present threat to the safety of persons or the

community, including the Defendant participating in an inpatient substance abuse program, the

burden of proof was improperly shifted from the State to the Defendant.”

¶ 13 In his Rule 604(h) memorandum, defendant raised a fifth argument not presented

in his notice of appeal: he was denied the effective assistance of counsel when defense counsel

failed to object to the State’s ability to object to his pretrial release due to the untimeliness of the

request.

¶ 14 This appeal followed.

¶ 15 II. ANALYSIS

-9- ¶ 16 We begin by addressing the procedural flaw in defendant’s appeal. Defendant has

forfeited the argument raised in the memorandum but not raised in the notice of appeal. Ill. S. Ct.

R. 604(h)(2) (eff. Sept. 18, 2023) (“The Notice of Appeal shall describe the relief requested and

the grounds for the relief requested.”); see People v. Martin, 2023 IL App (4th) 230826, ¶¶ 18-

19. While forfeiture is not a limitation on this court’s discretionary ability to review an otherwise

forfeited issue (People v. Curry, 2018 IL App (1st) 152616, ¶ 36), we decline to excuse

defendant’s forfeiture here. Accordingly, we will not address defendant’s claim that he raised

solely in his memorandum.

¶ 17 We turn next to the arguments defendant raised in his notice of appeal.

¶ 18 Under the Code, all criminal defendants are presumed eligible for pretrial release.

725 ILCS 5/110-6.1(e) (West Supp. 2023). When seeking a denial of pretrial release based on

defendant’s alleged dangerousness, the State must prove by clear and convincing evidence the

following: (1) the proof is evident or the presumption great the defendant committed a detainable

offense, (2) the defendant poses a threat to the safety of the community or any person in the

community, and (3) no combination of conditions can mitigate the threat to the safety of the

community. Id. §§ 110-6.1(a), (e)(1)-(3). By checking boxes on the notice-of-appeal form,

defendant, without additional detail or argument, argued the State did not meet its burden of

proving all three of these prerequisites.

¶ 19 Defendant has failed to convince this court the trial court erred in denying him

pretrial release. As the appellant, defendant carries the burden of proving trial-court error. See,

e.g., Insurance Benefit Group, Inc. v. Guarantee Trust Life Insurance Co., 2017 IL App (1st)

162808, ¶ 44. This burden cannot be satisfied by a simple checking of a box on a form notice of

appeal next to boilerplate language taken directly from the Code. Defendant has failed to point to

- 10 - any specific facts or make an argument supporting these grounds of relief and has, therefore, not

met his burden of proving error on these grounds.

¶ 20 Defendant’s remaining argument is he was denied an opportunity for a fair

hearing before the denial of his pretrial release. Defendant argues the trial court improperly

shifted the burden of proof from the State to him on the issue of conditions that would mitigate

the real and present threat to the safety of persons or the community. Defendant argued he

presented conditions that would mitigate such a threat, such as his participation in an inpatient

substance-abuse program.

¶ 21 Our review of the record reveals no trial-court error. As shown above, the State

bears the burden of showing no conditions or combination of conditions can mitigate the real and

present threat to the safety of any person or persons or the community based on the specific,

articulable facts of the case. See 725 ILCS 5/110-6.1(e)(3) (West 2022). The trial court did not

place the burden on defendant to prove the condition of inpatient treatment would mitigate the

threat defendant’s release would impose. Defendant presented the condition in support of his

petition for pretrial release, and the court pointed out the flaws in that recommendation and

rejected it. In turn, the State met its burden. The charges against defendant, for which the proof is

evident or the presumption great the defendant committed those detainable offenses, demonstrate

the threat is real and imminent and not mitigated by any condition or combination of conditions

for relief. Defendant engaged in conduct that endangered the lives of his victims, defendant was

armed with a weapon, and defendant repeatedly threatened the life of one of the victims, stating,

“[C]an’t nobody save you from me.” Unmonitored inpatient treatment in Champaign, Illinois,

would not mitigate this threat to Jacarrah, other persons, or the community.

¶ 22 III. CONCLUSION

- 11 - ¶ 23 We affirm the trial court’s judgment.

¶ 24 Affirmed.

- 12 -