People v. Wesley

2023 IL App (5th) 230803-U

• Court: Appellate Court of Illinois
• Decided: December 12, 2023
• Docket: 5-23-0803
• Status: Unpublished

Opinion

2023 IL App (5th) 230803-U NOTICE NOTICE Decision filed 12/12/23. The This order was filed under text of this decision may be NO. 5-23-0803 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, ) Champaign County. ) v. ) No. 23-CF-1197 ) TYZERION WESLEY, ) Honorable ) Brett N. Olmstead, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE McHANEY delivered the judgment of the court. Presiding Justice Vaughan and Justice Welch concurred in the judgment.

ORDER

¶1 Held: The trial court did not abuse its discretion in denying pretrial release where the trial court’s findings that the defendant posed a real and present threat to the safety of any person or the community and that no less restrictive conditions would avoid the real and present threat to the safety of any person or the community were not against the manifest weight of the evidence.

¶2 The defendant, Tyzerion Wesley, appeals the trial court’s order regarding defendant’s

pretrial release pursuant to Public Act 101-652 (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-

1 The Act has also sometimes been referred to in the press as the Pretrial Fairness Act. Neither name is official, as neither appears in the Illinois Compiled Statutes or the public act. Rowe v. Raoul, 2023 IL 129248, ¶ 4 n.1. 1 255, 102-1104, § 70 (eff. Jan. 1, 2023); Rowe v. Raoul, 2023 IL 129248, ¶ 52 (lifting stay and

setting effective date as September 18, 2023).

¶3 I. Background

¶4 On September 14, 2023, a firearm was discharged in the direction of a person and within

1000 feet of Booker T. Washington School in Urbana. The State outlined the facts at the hearing

on its petition to deny pretrial release held on September 28, 2023. At 2:49 p.m., Urbana police

officers responded to a report of shots fired near Booker T. Washington School, an elementary

school. School was in session when the shots were fired. Witnesses reported hearing four gunshots

and seeing male subjects run southbound on Wright Street in Urbana, while another group of males

ran toward 1206 Brookstone Court in Urbana. The witnesses described the clothing and

appearance of the males involved. Officers located shell casings in the area consistent with the

witness reports about the location of the shooter. The officers determined that the gun used was a

.45 caliber.

¶5 Surveillance video obtained from the elementary school provided police with additional

information. Six teenage males were involved in the incident. When the shooting began, two teens

were on the sidewalk in the 1400 block of Eads in Urbana. The other four teens were in a group

spread out along Eads Street and appeared to be pursuing the other two teens. Police detectives

obtained screenshots of the six teenagers and reviewed them with school officials and other

officers in an attempt at identification. Two minors were identified. Officers went to an address in

Champaign where the two minors lived. Upon arrival, one of the two minors, J.W., who was 11

years old, ran from the officers carrying a backpack. Upon catching him, officers ascertained that

the backpack contained two stolen firearms, several ammunition magazines, including a 50-round

drum magazine, and 390 rounds of individual ammunition. Officers noted that the drum magazine

2 was consistent with a magazine seen on the school surveillance video attached to a firearm held

by one of the shooters. Officers interviewed J.W. who identified the other teens involved in the

shooting incident, including the defendant he identified as “Ty.” Based on J.W.’s identification,

the officers determined that the defendant was the individual who was standing in the spot where

the officers found the .45-caliber shell casings. Officers distributed the names and the screenshots

to other police departments to attempt to get a complete identification of the defendant.

¶6 On September 24, 2023, Champaign officers contacted the defendant on an unrelated

matter and concluded that he matched the description of the suspect “Ty.” The defendant was

detained, brought to the Urbana Police Department and was interviewed. The defendant admitted

that he was one of the shooters. He claimed that one of the two minors displayed a gun to the

defendant and the other teens in his group. The State informed the court that this alleged display

of a gun is not seen on the surveillance video. However, the State indicated that one of the four

teens in the defendant’s group started chasing the other group, and at that point a gun was fired.

¶7 The defendant would not tell the officers where he obtained the gun but told them that he

discarded the gun in an alley. However, the State advised the court that three days later, the same

gun—based upon ballistics testing—was used in another shooting in a Champaign apartment

complex in the vicinity of a child. Witnesses to this second shooting described the persons involved

as two teen black men.

¶8 On September 26, 2023, the State filed its information in this case charging the defendant

with aggravated discharge of a firearm (720 ILCS 5/24-1.2(b) (West 2022)) in that he knowingly

discharged a firearm in the direction of a person within 1000 feet of a school.

¶9 On the same date, the State filed its petition asking the trial court to deny pretrial release

for the defendant. The State alleged that the defendant was charged with a qualifying offense, and

3 that he posed a real and present threat to the safety of the community. Defendant appeared in court

on this date and was provided with a copy of the information, counsel was appointed for him, and

he waived his preliminary hearing entering a not guilty plea.

¶ 10 On September 28, 2023, the trial court held the hearing on the State’s petition seeking to

deny the defendant’s pretrial release. The State provided information it had discerned from

interviews and review of surveillance footage from the school where the shooting occurred. The

State also informed the court that at the time and date of the shooting, a fifth-grade teacher was

outside with his students. The teacher reported seeing the teens walking toward the school. He

described the teens as wearing ski masks and keeping their hands in the waistbands of their pants.

Based upon this behavior, the teacher believed something was wrong and immediately got his

students to reenter the school building. As the students were walking back into the school, shots

were fired, and the teacher said that he saw the teens running.

¶ 11 Finally, the State informed the court that four of the other teenagers had been charged. One

immediately pled guilty and had been released pending sentencing. Two of the four teenagers had

been detained “based on their dangerousness.”

¶ 12 The defendant’s attorney argued that the facts did not support pretrial detention in this case.

She stated that the defendant had a three-month-old daughter and was expecting a son in April

2024. He was not employed but had been scheduled for a job interview that he had to miss due to

his detention. The defendant’s mother was also present in the courtroom and had advised her son’s

attorney that she would assist with any pretrial conditions. She stated that her son caused no

problems in the home and was a well-behaved and helpful young man. The defendant’s attorney

advised that the defendant had only completed the tenth grade, but that he was looking into the

Urbana Adult Education Center program to “move forward in life.” She informed the trial court

4 that the defendant had no prior criminal or juvenile history. The defendant’s attorney suggested

that several in-home detention options were available in Champaign County and would be

appropriate.

¶ 13 In closing, the State argued that the defendant had not provided information about the

location of the gun involved in the shooting. The State noted that this same gun was used in another

shooting days after this one and argued that the State had information connecting him with that

shooting. With no information provided as to the whereabouts of this gun, the State argued that

there was no assurance that he would not “find” that gun and use it again if he was not detained

for trial. The State also suggested that the defendant was not stable and was at an increased risk as

he had no education or employment, while being a father of one child and with a second child on

the way.

¶ 14 At the conclusion of the detention hearing, the trial court granted the State’s petition finding

that the offense charged fell into the detainable category, and that the defendant posed a real and

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

facts of the case and by conduct that included a forcible felony. The court found that the State had

shown by clear and convincing evidence that “that the proof is evident or presumption great that

Mr. Wesley committed that offense.” The court found that there was much to show that the

defendant could potentially comply with conditions of pretrial release, but that this potential was

grossly outweighed by the evidence of the defendant’s offense conduct and his conduct in the

following days. The court noted that this offense carried a presumption of pretrial release. Despite

this presumption, the court found that the defendant’s actions displayed extreme danger and “a

level of depravity and complete lack of concern for the safety of this community’s most vulnerable

5 members” as the crime was committed within 1000 feet of an elementary school that was in

session.

¶ 15 The order included the trial court’s findings that the defendant committed a detainable

offense, as follows:

“Defendant Mr. Wesley was identified by witnesses, captured by video, and

admitted himself, as being involved in a shooting on September 14, 2023—as a

shooter—on Brookstone Court within 1,000 feet of a school. Spent casings were

found at the location where video captured him standing during the shooting.”

The order also included the trial court’s findings that the defendant posed a real and present threat

and/or that he posed a high likelihood of willful flight, and that no condition or combination of

conditions of pretrial release (725 ILCS 5/110-10 (West 2022)) could mitigate the real and present

threat described as follows:

“Despite his lack of prior record, family support, obligations to children (one born

and one on the way), and other indications of community and family ties and

structure, the specific articulable facts of the case show dangerousness to the

community and the persons in it that cannot be mitigated by any combination of

release conditions. Mr. Wesley’s shooting was part of a gunfight showdown in the

middle of the afternoon on a public street. All those involved were armed to the

teeth. The school next to the shooting was a grade school and it was in session.

Fifth graders were outside and, when the shooting started, their teacher frantically

rushed them inside the building for safety. Mr. Wesley admitted that he tossed his

gun in an alley but did not tell police where, so wherever it is, it can be recovered

and hidden or destroyed. This crime reflects depravity and a complete disregard of

6 the danger it posed to this community’s most vulnerable members. Also,

comparison evidence linked the gun that produced the casings found where Mr.

Wesley was shooting to another shooting that happened the very next day at an

apartment complex in the middle of the day that also endangered children.”

¶ 16 The defendant timely appealed from the trial court’s September 28, 2023, order denying

his pretrial release and ordering his confinement in the Champaign County jail pending trial. Ill.

S. Ct. R. 604(h)(2) (eff. Sept. 18, 2023). The defendant asked this court to reverse the trial court’s

order denying his pretrial release. In support, the defendant argued that the “State failed to meet

its burden of proving by clear and convincing evidence that no condition 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.” The specific alleged grounds for

relief were (1) the defendant’s youth, having just turned 18 on August 8, 2023; (2) that the

defendant resides with his mother in Champaign; (3) that the defendant has no prior police

involvement; (4) that the defendant could be placed on GPS monitoring and home confinement

during the pendency of the case; and (5) that the defendant has extended family in the area and is

not a flight risk.

¶ 17 The defendant, through his appellate counsel, has opted to stand on the notice of appeal.

¶ 18 II. Analysis

¶ 19 Pretrial release is governed by the Act as codified in article 110 of the Code of Criminal

Procedure of 1963 (Code) (725 ILCS 5/art. 110 (West 2022)). A defendant’s pretrial release may

only be denied in certain statutorily limited situations. Id. §§ 110-2(a), 110-6.1. After filing a

timely verified petition requesting denial of pretrial release, the State has the burden to prove by

clear and convincing evidence that the proof is evident or the presumption great that the defendant

7 has committed a qualifying offense, that the defendant’s pretrial release poses a real and present

threat to the safety of any person or the community or a flight risk, and that less restrictive

conditions would not avoid a real and present threat to the safety of any person or the community

and/or prevent the defendant’s willful flight from prosecution. Id. § 110-6.1(e), (f). The trial court

may order a defendant detained pending trial if the defendant is charged with a qualifying offense,

and the trial court concludes the defendant poses a real and present threat to the safety of any

person or the community (id. § 110-6.1(a)(1)-(7)) or there is a high likelihood of willful flight to

avoid prosecution (id. § 110-6.1(a)(8)). If the trial court determines that the defendant should be

denied pretrial release, the court is required to make written findings summarizing the reasons for

denying pretrial release. Id. § 110-6.1(h).

¶ 20 The Code provides a nonexclusive list of factors that the trial court may consider in making

a determination of “dangerousness,” i.e., that the defendant poses a real and present threat to any

person or the community. Id. § 110-6.1(g). In making a determination of dangerousness, the court

may consider evidence or testimony as to factors that include, but are not limited to: (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; (3) the

identity of any person to whom 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 the statements; (5) the age and physical condition of the defendant; (6) the age and

physical condition of the victim or complaining witness; (7) whether the defendant is known to

possess or have access to a weapon; (8) whether at the time of the current offense or any other

offense, the defendant was on probation, parole, or supervised release from custody; and (9) any

other factors including those listed in section 110-5 of the Code (id. § 110-5). Id. § 110-6.1(g).

8 ¶ 21 To reverse a trial court’s finding that the State presented clear and convincing evidence

showing that mandatory conditions of release would fail to protect any person or the community,

the reviewing court must conclude that the trial court’s findings were against the manifest weight

of the evidence. See In re C.N., 196 Ill. 2d 181, 208 (2001) (setting a similar standard of review

for requirement of clear and convincing evidence by the State in juvenile proceedings). “A finding

is against the manifest weight of the evidence only if the opposite conclusion is clearly evident or

if the finding itself is unreasonable, arbitrary, or not based on the evidence presented.” People v.

Deleon, 227 Ill. 2d 322, 332 (2008). “Under the manifest weight standard, we give deference to

the trial court as the finder of fact because it is in the best position to observe the conduct and

demeanor of the parties and witnesses.” Id. Additionally, questions regarding whether the trial

court properly considered one or more of the aforementioned factors in determining dangerousness

are reviewed for an abuse of discretion. See People v. Simmons, 2019 IL App (1st) 191253, ¶¶ 9,

15 (in considering trial court’s decision to deny bail, the reviewing court will not substitute its

judgment for that of the trial court merely because it would have balanced the appropriate factors

differently).

¶ 22 If the trial court finds the State proved a valid threat to a person’s safety or the community’s

safety and/or defendant’s likely willful flight to avoid prosecution, or defendant’s failure to abide

by previously issued conditions of pretrial release, then the trial court must determine what pretrial

release conditions, “if any, will reasonably ensure the appearance of a defendant as required or

safety of any other person or the community and the likelihood of compliance by the defendant

with all the conditions of pretrial release.” 725 ILCS 5/110-5(a) (West 2022). In reaching its

determination, 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

9 the defendant;2 (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. Id. The statute lists no singular

factor as dispositive. Id. The trial court’s pretrial release determination, modification of pretrial

release determination, or revocation of pretrial release determination will not be reversed unless

the determination was an abuse of discretion. See People v. Perruquet, 68 Ill. 2d 149, 154 (1977);

People v. Etherton, 2017 IL App (5th) 140427, ¶ 15 (setting a similar standard of review for the

sentence imposed on the defendant after the trial court’s consideration of statutory factors and

evidence presented at sentencing).

¶ 23 The defendant was charged with aggravated discharge of a firearm within 1000 feet of a

school (720 ILCS 5/24-1.2(b) (West 2022)). This charge is a Class X felony that carries a

mandatory prison sentence of 6 to 30 years, followed by 3 years of mandatory supervised release.

730 ILCS 5/5-4.5-25(a), (l) (West 2022). Based on our review of the record, including the notice

of appeal, we find that: (1) the trial court’s finding that the defendant met the dangerousness

standard, in that he posed a real and present threat to the safety of any person or persons in the

community, was not against the manifest weight of the evidence; and (2) the trial court’s

determination that no less restrictive conditions would avoid the real and present threat to the safety

of any person or the community was not against the manifest weight of the evidence.

2 The defendant’s history and characteristics include: “the defendant’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past relating to drug or alcohol abuse, conduct, *** criminal history, and record concerning appearance at court proceedings,” as well as “whether, at the time of the current offense or arrest, the defendant was on probation, parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal law, or the law of this or any other state.” 725 ILCS 5/110-5(a)(3)(A), (B) (West 2022). 10 ¶ 24 III. Conclusion

¶ 25 We have thoroughly reviewed the record on appeal and conclude it does not demonstrate

that the trial court’s order denying pretrial release was an abuse of discretion. Therefore, we affirm

the Champaign County circuit court’s order.

¶ 26 Affirmed.