People v. Milsap , 2024 IL App (4th) 240020-U ( 2024 )


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  •             NOTICE                   
    2024 IL App (4th) 240020-U
    This Order was filed under
    FILED
    Supreme Court Rule 23 and is                                                     March 6, 2024
    NO. 4-24-0020
    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.                                                 )      Adams County
    MICHAEL P. MILSAP,                                            )      No. 23CF740
    Defendant-Appellant.                               )
    )      Honorable
    )      Robert K. Adrian,
    )      Judge Presiding.
    JUSTICE KNECHT delivered the judgment of the court.
    Justices Zenoff and Doherty concurred in the judgment.
    ORDER
    ¶1      Held: The trial court did not abuse its discretion in denying defendant pretrial
    release.
    ¶2               Defendant, Michael P. Milsap, appeals the trial court’s order denying his pretrial
    release under section 110-6.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS
    5/110-6.1 (West 2022)), hereinafter as amended by Public Acts 101-652, § 10-255 and
    102-1104, § 70 (eff. Jan. 1, 2023), commonly known as the Pretrial Fairness Act. We affirm.
    ¶3                                       I. BACKGROUND
    ¶4               On December 19, 2023, the State charged defendant with unlawful possession of
    weapons by a felon (720 ILCS 5/24-1.1(a) (West 2022)) and unlawful possession of firearm
    ammunition by a felon (id.).
    ¶5               The same day, the State petitioned to deny defendant’s pretrial release under
    section 110-6.1 of the Code. The State asserted defendant’s pretrial release posed a real and
    present threat to the safety of any person or persons or the community.
    ¶6             A hearing was held the same day. The State attached a certified police report as
    evidence in support of its petition. According to the certified police report:
    “On 12/16/2023 at 2302 I was in the area of 6th and
    Washington. I observed a dark colored Dodge Durango flee from
    6th and Washington at a high rate of speed. I was unable to
    conduct a traffic stop on the vehicle. At 2305 I was dispatched to
    609 Washington for shots fired, as well as, 613 Washington for a
    disturbance. Upon arrival at 613 Washington, I observed a male,
    later identified as [defendant], walk around the east side of
    residence before making contact with me. [Defendant] denied that
    there was an issue at the residence and was extremely combative
    towards law enforcement. [Defendant] stated that he was in his
    garage all night after coming home from a graduation party. Also
    While at 613 Washington officers spoke with Rochelle Milsap,
    [defendant’s] wife, Rochelle Milsap stated that she did call for the
    disturbance, but stated that she had no clue what was happening
    and that she had called back and stated she no [l]onger needed
    police. Both Rochelle and [defendant] stated that they had no clue
    what had happened and that they did not hear a gun shot. The
    disturbance was unfounded. I then made contact with Tim
    Mandrell and Sorita Selmen, who were the callers from the shots
    -2-
    fired call. Mandrell stated that he heard arguing outside of his
    home and looked out the window. Mandrell stated he saw a dark
    colored Dodge Durango parked at 6th and Washington. Mandrell
    stated that the driver of the Dodge Durango and a male known to
    him as [defendant] were walking towards each other, before
    [defendant] shot a singular round from a handgun. Mandrell stated
    that as [defendant] shot[,] the driver from the Dodge Durango
    ducked down and ran back to the vehicle. Mandrell stated that he
    thought he heard a second gun shot but he and Selmen discovered
    that the noise had came from the television. I then collected video
    footage from a home surveillance camera at 604 Washington.
    While at 604 Washington I spoke with James Valentine. Valentine
    stated that he had heard an argument outside but stated it was not
    very loud, and also stated that he did not hear a shot, or see the
    vehicle drive away. In the video you can see the Dodge Durango
    drive west bound on Washington street before making a U-turn in
    the intersection of 6th and Washington.
    The vehicle then parked on Washington St. In the video the
    driver of the vehicle and [defendant] walk towards each other on
    Washington St. A flash could then be seen in [defendant’s] hands.
    The driver of the vehicle then ducks down, before running back to
    the vehicle and the vehicle flees from the area. In the video
    [defendant] can be seen walking back to 613 Washington. A
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    singular .380 shell casing was located roughly in the same area in
    [defendant] was standing at the time the flash could be seen
    coming from his hand. The shell casing was located at 0212 hours
    on 12/27/2023.
    On 12/18/2023 at approximately 1030 hours officers
    executed a search[ ] warrant at 613 Washington. While executing
    the search warrant a Rug[e]r .380 LCP was located inside of a
    white cooler inside of the garage. *** While searching the
    residence, 100 .22 long rifle rounds were also located and
    collected. The ammunition was located on a shelf at the top of a
    closet in [defendant’s] primary bedroom. ***.”
    ¶7             The trial court stated it had reviewed the pretrial services report. According to that
    report, defendant had resided with his wife at 613 Washington Street, Quincy, Illinois, for 30
    years. Defendant operated his own construction business, earning $80 per hour working 60-70
    hours per week. The report lists over 20 traffic offenses beginning in 1993. Defendant’s criminal
    history in Adams County includes the following: two possession-of-cannabis convictions in
    1993, resisting/obstructing a peace officer in 1993, criminal trespass to land in 1993, possession
    of cannabis in 1994, unlawful delivery of controlled substance for which he was sentenced to six
    years in the Illinois Department of Corrections (DOC) in 1995, criminal damage to property in
    1996, aggravated battery in 1996 for which he was sentenced to five years in the DOC, unlawful
    possession of a controlled substance in 1996, fighting in 2000, possession of a controlled
    substance for which defendant was sentenced to three years in the DOC in 2001, fighting in
    2002, possession of drug paraphernalia and cannabis in 2010, aggravated driving under the
    -4-
    influence for which he was sentenced to two years in the DOC, resisting a peace officer in 2010,
    domestic battery in 2011, and fighting in 2015. There were also multiple traffic offenses in Ohio
    from 2004 to 2007.
    ¶8              The author reported the Revised Virginia Pretrial Risk Assessment Instrument,
    performed by Pretrial Services, identified defendant’s risk of pretrial misconduct as 6 out of a
    possible score of 0-14. Based on statistical norms, the assessment estimates a 90% probability
    defendant will appear for future hearings and no offenses will occur during the pendency of the
    case. The pretrial officer recommended defendant be placed on pretrial supervision.
    ¶9              Defense counsel presented no evidence but argued defendant should be permitted
    pretrial release. Counsel emphasized defendant owned his own business with four to five
    employees. Counsel reported defendant had minor grandchildren whom he and his wife looked
    after while their parents worked and his wife had surgery scheduled the next month. Counsel
    further emphasized the State had not charged defendant with an offense based on the discharge
    of a firearm. Counsel argued conditions could guarantee defendant would not commit future
    criminal offenses, such as wearing a global-positioning-system device and participating in
    pretrial services.
    ¶ 10            The trial court granted the State’s petition to detain defendant. In so doing, the
    court found the following:
    “The defendant is charged with possession of a firearm. He is seen
    on video discharging a firearm[,] *** which is the possession of
    the firearm *** part of the charge. The fact that he is seen
    discharging that firearm and other people [report] hearing the
    discharge of that firearm provides that the defendant would be—
    -5-
    and the fact that he discharged it towards another individual who
    was present and towards a vehicle, the Court finds that he would,
    by clear and convincing evidence, *** be a danger to [a] particular
    member of the public or the public at large because [defendant] is a
    felon, has several felony convictions, has been to the [DOC] and,
    in fact, a gun was found after a search warrant along with some
    ammunition to another weapon. The Court does not believe that
    there are any terms of pretrial release that could be ordered that in
    this case would alleviate the need to detain [defendant].”
    ¶ 11           The trial court issued a written order on the State’s verified petition for detention.
    The court did so by checking boxes on a preprinted form. The court adopted its verbal findings
    and found by clear and convincing evidence the proof is evident or the presumption great
    defendant committed an offense for which pretrial release may be denied, defendant’s pretrial
    release posed a real and present threat to the safety of any person or persons or the community,
    and no condition or combination of conditions could mitigate that threat. The court further
    checked boxes to summarize the statutory factors on which it based its finding of dangerousness
    and its determination no condition or combination of conditions could mitigate that threat: the
    nature and circumstances of the offenses charged, defendant’s criminal history indicative of
    violent, abusive, or assaultive behavior, the identity of any person or persons to whose safety the
    defendant is believed to pose a threat, and whether defendant is known to possess or have access
    to a weapon.
    ¶ 12           This appeal followed.
    ¶ 13                                      II. ANALYSIS
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    ¶ 14           On December 29, 2023, defendant filed a notice of appeal challenging the order
    denying his pretrial release under Illinois Supreme Court Rule 604(h) (eff. Dec. 7, 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. Dec. 7, 2023)), by which he asks this
    court to reverse the order denying his release. The form lists several possible grounds for
    appellate relief and directs appellants to “check all that apply and describe in detail.” On the
    form, defendant asserted three grounds of relief and provided argument under each ground.
    Defendant also filed a memorandum supporting his appeal.
    ¶ 15           The first checked box on defendant’s notice of appeal sets forth the argument the
    State did not prove by clear and convincing evidence defendant poses a real and present threat to
    the safety of any persons or persons or the community. In support, defendant wrote the
    following:
    “The Pretrial Services Report recommended the defendant
    be placed on pretrial supervision, not detention. Defendant has two
    convictions involving violence but the last one was a misdemeanor
    in 2011. Defendant is not [a] threat to safety of any identifiable
    person or persons or the community. Defendant was not a
    respondent in any civil stay away order/no contact orders. The
    defendant is not on parole or any other type of court supervision at
    the time of the hearing.”
    In his memorandum, defendant added the fact he possessed a gun and ammunition is not alone
    sufficient to prove defendant posed a threat and questioned the State’s reliance on uncharged
    conduct to show defendant was dangerous. Defendant further emphasized his criminal history is
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    largely nonviolent.
    ¶ 16           Under the Code, all criminal defendants are eligible for pretrial release. 725 ILCS
    5/110-6.1(e) (West 2022). To deny defendant pretrial release under section 110-6.1(e)(1)-(3) of
    the Code (id. § 110-6.1(e)(1)-(3)), as the State sought here, the State must prove by clear and
    convincing evidence “the defendant poses 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.” The Code gives
    the trial court broad discretion in choosing what factors to consider in making this determination
    and lists some factors a court may consider. See id. § 110-6.1(g). This nonexhaustive list
    includes, in part, (1) the nature and circumstances of the charged offense, including whether the
    offense is one of violence, involves a weapon, or a sex offense; (2) defendant’s history and
    characteristics, including evidence of a criminal history indicative of violent, abusive or
    assaultive behavior; (3) identity of person or persons to whose safety the defendant is believed to
    pose a threat; (4) statements made or attributed to defendant; (5) defendant’s age and physical
    condition; and (6) whether defendant is known to have access to any weapon. Id.
    ¶ 17           This court reviews the question of whether a criminal defendant is properly
    denied pretrial release for an abuse of discretion. See People v. Inman, 
    2023 IL App (4th) 230864
    , ¶¶ 10-11. We will find an abuse of discretion when the decision is unreasonable,
    arbitrary, or fanciful or when we find no reasonable person would agree with the trial court’s
    decision. Id. ¶ 10.
    ¶ 18           We need not decide, as defendant argues, whether the offense alone may support
    a finding the defendant’s release poses a threat as the trial court did not rely on that fact alone
    when finding the State sufficiently proved this factor. Defendant is charged with unlawful
    possession of a weapon and ammunition. The circumstances surrounding the offense reveal other
    -8-
    facts supporting the finding of dangerousness. There is witness testimony and video evidence
    showing defendant, despite being barred by law from possessing a weapon and ammunition, not
    only possessed a weapon and ammunition but also fired a weapon in the direction of another
    person. There is also proffered evidence defendant’s wife called police due to a disturbance and
    then canceled the call. Defendant has a record of violent behavior, including a 1996 aggravated
    battery, a 2011 domestic battery, and three “fighting” convictions between 2000 and 2015. The
    court considered the statutory factors of section 110-6.1(g) (725 ILCS 5/110-6.1(g) (West
    2022)), rejecting some and accepting others. While the offenses in defendant’s past are older,
    given the court’s consideration of the statutory factors and analysis of the facts and
    circumstances of the case, we cannot find the court’s determination to be fanciful, arbitrary, or
    unreasonable.
    ¶ 19            Defendant’s next argues in his notice of appeal the State did not prove by clear
    and convincing evidence no condition or combination of conditions can mitigate the real and
    present threat to the safety of the community. In support, defendant wrote the following:
    “Defendant is 48 years old, married[,] and is self-employed
    in construction business. Other than a littering charge in 2019[,]
    *** defendant has no criminal dispositions since 2015. The
    defendant has a medical condition, [Crohn’s] disease[,] which is
    being treated, as well as high blood pressure. The defendant has
    been married for over 30 years. The court did not consider
    alternatives such as home confinement or electronic monitoring
    [which] would allow defendant’s continued employment and
    ability to seek treatment.”
    -9-
    In his memorandum, defendant argues the Code sets forth multiple mandatory and permissible
    conditions a trial court may impose instead of pretrial detention, but the State only addressed one
    of those conditions, the prohibition against possession of a firearm, and the court here made one
    conclusory statement on the issue. Defendant further relies largely on People v. Stock, 
    2023 IL App (1st) 231753
    , to support his claim.
    ¶ 20           To obtain pretrial detention under the dangerousness standard, the State must also
    prove by clear and convincing evidence no condition or combination of conditions set forth in
    section 110-10(b) (725 ILCS 5/110-10(b) (West 2022)) can mitigate the real and present threat
    defendant’s release poses to the safety of any person or persons or the community. See 725 ILCS
    5/110-6.1(e)(3)(i) (West 2022). Section 110-10(b) lists discretionary conditions to be considered,
    including refraining from possessing a firearm (id. § 110-10(b)(2)), being placed under direct
    supervision of a pretrial services agency or probation department in home confinement with or
    without electronic monitoring (id. § 110-10(b)(5)), and refraining from approaching or
    communicating with a particular person (id. § 110-10(b)(3)). A detention order must contain a
    written finding summarizing why less restrictive conditions would not mitigate the threat. Id.
    § 110-6.1(h)(1).
    ¶ 21           We do not find defendant’s emphasis on the fact the State argued against only one
    of the conditions listed in section 110-10(b) renders the no-condition-or-combination-of-
    conditions factor unproved. There is no requirement in section 110-6.1 the State “argue” against
    each possible condition. Instead, the mandate is the State proffer evidence to establish clearly
    and convincingly, in part, no condition or combination of conditions can mitigate the real and
    present threat. See id. § 110-6.1(e)(3)(i). Here, it is not unreasonable for the trial court to have
    concluded the State did so. The two conditions defendant argues that could have mitigated any
    - 10 -
    threat are home confinement and electronic monitoring. The proffer on which the trial court
    relied in finding the State sufficiently proved this factor includes evidence showing defendant
    committed the unlawful-possession-of-a-weapon offense while in his own home and just outside
    his home. In addition, the reporting officer responded to a call for a disturbance at defendant’s
    home and the shots-fired call at a neighboring address. It is not an abuse of discretion to
    conclude the evidence clearly and convincingly showed a condition of home confinement and
    electronic monitoring would not mitigate the threat to the safety of any person or persons or the
    community.
    ¶ 22           We further find unconvincing defendant’s argument the trial court’s ruling
    regarding the conditions was insufficient. While the court, at the hearing, directed only one
    sentence regarding this factor, finding no “terms of pretrial release *** could be ordered that in
    this case would alleviate the need to detain [defendant],” it did so after summarizing the facts
    and circumstances of the offense. The court noted defendant not only unlawfully possessed a
    firearm but also fired the firearm in the direction of a person. In addition, the verbal statement at
    the hearing was not the end of the court’s explanation of its ruling. In its written order, the court
    stated it based its determination on defendant’s criminal history, which included violent, abusive,
    or assaultive behavior, the identity of a person or persons to whose safety the defendant is
    believed to pose a threat, and the fact defendant possessed a weapon.
    ¶ 23           Defendant’s case law supporting this claim is distinguishable and unpersuasive. In
    Stock, the First District applied the manifest-weight-of-the-evidence standard to find the trial
    court erred in concluding no condition or combination of conditions would mitigate the threat.
    Stock, 
    2023 IL App (1st) 231753
    , ¶¶ 12, 15-19. The First District concluded the State had relied
    only on the factual proffer about the circumstances of the charged offense—aggravated battery
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    based on the defendant’s alleged firing of a gun at his wife and injuring her as she attempted to
    remove her belongings from the marital home while seeking a divorce. Id. ¶¶ 5, 18. The First
    District concluded more was required than proof of the basic elements of the offense to prove no
    conditions could mitigate the threat of the defendant’s pretrial release. Id. ¶ 18. The court further
    noted proof of that element could not be inferred “particularly in a case like this one where
    defendant has no other criminal history beyond the instant case and the record before us
    demonstrates that [the] defendant has otherwise been an upstanding and law-abiding member of
    the community.” (Emphasis added.) Id. ¶ 19. Here, unlike in Stock, there is a lengthy criminal
    history that includes violent behavior and repeated incarcerations.
    ¶ 24           The last argument defendant asserts in his notice of appeal challenges the
    sufficiency of the trial court’s detention order—an order created using a preprinted form:
    “Pursuant to 725 ILCS 5/110-6.1(h)(1) the Court’s order
    for detention shall ‘(1) make a written finding summarizing the
    reasons … the defendant should be denied pretrial release,
    including why less restrictive conditions would not avoid a real
    and present threat … (to others), based upon specific articulable
    facts of the case, or prevent the defendant’s willful flight from
    prosecution.’
    The Court’s order does not make a written finding
    summarizing the reasons for detention and does not state in the
    written order why less restrictive conditions would not avoid a real
    and present threat. The Court made no written findings but
    checked a form order with boxes citing the statute without stating
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    any specific finding.”
    In his memorandum, defendant relies on two cases in support: Stock and People v. Earnest, 
    2024 IL App (2d) 230390
    .
    ¶ 25           As shown above, section 110-6.1(h)(1) mandates courts issuing detention orders
    make written findings “summarizing” the reasons for concluding defendants should be denied
    pretrial release, including reasons why less restrictive conditions would not mitigate a real and
    present threat to the safety of any person, persons, or the community. 725 ILCS 5/110-6.1(h)(1)
    (West 2022). No language within this section bars a trial court from making those written
    findings by using a preprinted form.
    ¶ 26           Defendant’s case law does not establish error as it does not show a trial court may
    not satisfy section 110-6.1(h)(1) by use of a preprinted form and does not establish the court’s
    summary of reasons was insufficient. Stock involves the use of a preprinted form; however, the
    decision turned not on the sufficiency of the form or the written order but on the insufficiency of
    the evidence presented at the hearing. See Stock, 
    2023 IL App (1st) 231753
    , ¶¶ 15-20. The only
    reason provided in the written order in Stock was also the only evidence provided by the State:
    “The defendant shot a firearm at the complaining witness.” Id. ¶ 20. The court had already found
    that fact alone, an element of the charged offense and the only basis for the State’s claim, was
    insufficient to support a finding no conditions would mitigate the threat. Id. ¶ 19. As in Stock, the
    written order in Earnest was not insufficient solely because the summary of reasons was
    insufficient but because the State presented no evidence on whether any condition or
    combination of conditions would mitigate the risk of willful flight. Earnest, 
    2024 IL App (2d) 230390
    , ¶ 27 (finding the record “barren”). The Second District found the court failed to address
    any evidence regarding whether conditions would mitigate willful flight as there was no such
    - 13 -
    evidence proffered. 
    Id. ¶ 28
    . Only then was the “checkbox boilerplate order,” containing no
    summary of reasons why less restrictive conditions would not prevent willful flight, insufficient
    under section 110-6.1(h)(1). See 
    id. ¶¶ 27-28
    .
    ¶ 27           In contrast to the facts in defendant’s case law, the State proffered evidence on
    this issue and the trial court made written findings expressly directed toward the conditions
    element. The court’s written order expressly adopted its oral findings. At the hearing, the court
    summarized the facts of the offense, the unlawful possession of a firearm, as well as the fact
    defendant fired the firearm at another person. As additional support for its finding no condition
    or conditions could mitigate the threat, the court further checked the boxes highlighting
    defendant’s criminal history and found such history included violent and abusive behavior,
    defendant was a threat to a particular person, and defendant had access to a weapon. The fact the
    court checked some boxes, boxes with reasons supported by the record, and not others, shows the
    court used its discretion in weighing the evidence and in providing the reasons for its findings.
    The court’s order complies with section 110-6.1(h)(1) of the Code.
    ¶ 28                                   III. CONCLUSION
    ¶ 29           We affirm the trial court’s judgment.
    ¶ 30           Affirmed.
    - 14 -
    

Document Info

Docket Number: 4-24-0020

Citation Numbers: 2024 IL App (4th) 240020-U

Filed Date: 3/6/2024

Precedential Status: Non-Precedential

Modified Date: 3/7/2024