People v. Ussery

2023 IL App (3d) 230494-U

• Court: Appellate Court of Illinois
• Decided: December 27, 2023
• Docket: 3-23-0494
• Status: Unpublished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).

2023 IL App (3d) 230494-U

Order filed December 27, 2023 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 18th Judicial Circuit, ) Du Page County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-23-0494 v. ) Circuit No. 23-CF-1951 ) JAMES M. USSERY JR., ) Honorable ) Ann Celine O’Hallaren Walsh, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE ALBRECHT delivered the judgment of the court. Justice Brennan concurred in the judgment. Justice McDade dissented. ____________________________________________________________________________

ORDER

¶1 Held: The circuit court did not abuse its discretion when it granted the State’s detention petition.

¶2 Defendant, James M. Ussery Jr., appeals his pretrial detention, arguing that the Du Page

County circuit court erred in finding that he posed a real and present threat to the safety of any

person, persons, or the community and that there were no conditions that would mitigate that

threat. We affirm. ¶3 I. BACKGROUND

¶4 Defendant was charged on September 9, 2023, with, inter alia, aggravated fleeing and

eluding a peace officer causing over $300 in property damage (Class 4) (625 ILCS 5/11-

204.1(a)(3) (West 2022)). Defendant’s bond was set at $100,000, but he remained in custody.

Defendant was subsequently indicted on the charge as well as a charge of residential burglary

(Class X) (720 ILCS 5/19-3(a) (West 2022)). On October 2, 2023, defendant filed a motion to

reopen conditions of pretrial release. The State filed a verified petition to deny pretrial release,

alleging defendant was charged with a forcible felony and residential burglary, 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) of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-6.1(a)(1.5), (6)

(West 2022)).

¶5 The factual basis provided in the petition stated that on September 8, 2023, at

approximately 2:55 a.m., an Elmhurst police officer attempted to effectuate a traffic stop on

defendant’s vehicle for driving without headlights. Defendant accelerated at a high rate of speed

and fled from the officer, crashing his vehicle a short distance away, and causing damage to a

metal railing. Defendant fled the vehicle on foot. Later that morning, a residential burglary was

reported. The residents advised they heard noises in the house at approximately 3 a.m. and

noticed a back window open. They later learned a purse with cash, credit cards, and other items

had been stolen. Based on similar facts from defendant’s previous residential burglary and the

proximity in time between the attempted traffic stop and the break-in, defendant was later taken

into custody. Location information from defendant’s cell phone showed he was inside the

residence for approximately 35 minutes and left 3 minutes prior to the attempted traffic stop.

Defendant’s cell phone then followed the path of the fleeing vehicle to the crash location and

2 moved through a park and wooded area, ultimately arriving at a business where defendant was

employed. The petition also stated that defendant was on mandatory supervised release (MSR)

for a 2016 residential burglary on the same street as the residence in this case, and he had

committed prior felonies, including burglary, attempted burglary, unlawful possession of a stolen

motor vehicle, and theft.

¶6 A pretrial risk assessment indicated that he was a moderate risk. He reported that he was

employed full time. He had knee surgery in June and was attending physical therapy. He denied

any substance abuse issues but stated that he wanted to start counseling to address past trauma.

¶7 A hearing was held on the petition on October 6, 2023. Defense counsel argued that

defendant was not a danger as there was no indication of violence or a weapon used in this case,

and he would comply with court conditions. The court granted the State’s petition finding the

State met its burden by clear and convincing evidence. It stated that the proof and presumption

was great that defendant committed the offenses. It also found defendant was dangerous, and

there were no conditions that would mitigate this. In doing so, the court stated,

“And specifically the Court points to, among everything that I have

reviewed, the defendant’s behavior that’s alleged in this particular case I do find

poses a threat to the community, both in his behavior surrounding the fleeing and

*** the facts and circumstances surrounding the initial fleeing of the police

officers. *** I do note the defendant fled—after he fled in a vehicle at a high rate

of speed, he also fled from the vehicle on foot to evade law enforcement, which

the Court underscores the defendant’s behavior ***.

And then I also carefully considered the facts that—the allegations with

regard to the residential burglary. And in the Court’s opinion, I don’t think that

3 the Court needs to find that the defendant engaged in physical violence using a

weapon or other type of violence to find that he poses a real and present threat to

the safety of persons in the community. So I’m making that particular finding, and

I’ve considered that. And also the fact that the defendant was on parole when the

allegations of these offenses have been committed.”

¶8 Defendant appealed.

¶9 II. ANALYSIS

¶ 10 On appeal, defendant contends that the court abused its discretion in granting the petition

to detain. Specifically, he argues the court erred in finding that he posed a real and present threat

to the safety of any person, persons, or the community and that there were no conditions that

would mitigate any threat that he did pose. We consider factual findings for the manifest weight

of the evidence (People v. $280,020 in United States Currency, 2013 IL App (1st) 111820, ¶ 18),

but the ultimate decision to grant the State’s petition to detain is considered for an abuse of

discretion (People v. Inman, 2023 IL App (4th) 230864, ¶ 10). 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(e). When

determining a defendant’s dangerousness and the conditions of release, the statute includes a

nonexhaustive list of factors the court can consider. Id. §§ 110-6.1(g), 110-5.

4 ¶ 11 We find the court did not err in granting the petition. First, defendant has shown that he is

a danger to the community. He broke into a house in the middle of the night, something he had

done on this same street before. Moreover, he fled from the police at a high rate of speed,

ultimately crashing into a metal railing. While defendant argues that he was not armed with a

weapon and had not hurt anyone, the court was correct in finding that this was not necessary for

a finding of dangerousness. Second, the court did not err in finding that there were no conditions

to mitigate defendant’s dangerousness. Defendant was on MSR, which did not prevent him from

committing the instant offense. Based on the foregoing, we cannot say that the court’s decision

to grant the petition was an abuse of discretion.

¶ 12 III. CONCLUSION

¶ 13 The judgment of the circuit court of Du Page County is affirmed.

¶ 14 Affirmed.

¶ 15 JUSTICE McDADE, dissenting:

¶ 16 One might fairly describe defendant’s reaction to the possibility of being caught at or

near the scene of his crime as “fight or flight.” The State showed convincingly that he chose

flight. We know from our own experience with similar cases that such a reaction is very

common. The State also showed defendant was dangerous in that he had likely committed the

current crime against a person and that it was not his first offense.

¶ 17 The procedures surrounding this statute serve a stated purpose that, absent special

circumstances proven by the State by clear and convincing evidence, everyone charged with an

offense is eligible for pretrial release. Those circumstances are set out at the end of the majority’s

decision. In my opinion, the third element of the State’s burden—that there are no conditions that

5 the court could impose on pretrial release that could mitigate defendant’s threat to the

community or the risk that he might flee and evade justice—is truly critical.

¶ 18 In most of the cases under this new approach to pretrial detention that I have seen, as

here, the State is either silent on this element or makes a conclusory allegation—which is not

evidence—that no such conditions exist. If there truly are no feasible restrictions, then pretrial

detention is appropriate. But the trial court cannot know that and we cannot review its decision

unless there is some record that the State made a showing and the court considered and

reasonably rejected available options.

¶ 19 The requisite timeframes for these cases at both the trial and appellate levels are

challenging, but that does not give the State and trial courts license to ignore a difficult element

or give us the option of excusing the State’s satisfaction of its burden on this key element.

¶ 20 I would find that the State has not met its burden, that the trial court abused its discretion,

and that the decision should be reversed, and the matter remanded for further action in

compliance with the statute.