People v. Martin , 2024 IL App (4th) 231512-U ( 2024 )

NOTICE 2024 IL App (4th) 231512-UThis Order was filed under
FILED
NOS. 4-23-1512, 4-23-1513, 4-23-1514 cons. March 12, 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. ) Rock Island County
JACOB MARTIN, ) Nos. 22CF480,
Defendant-Appellant. ) 23CF316,
) 23CF317
)
) Honorable
) Frank R. Fuhr,
) Judge Presiding.
PRESIDING JUSTICE CAVANAGH delivered the judgment of the court.
Justice Zenoff concurred in the judgment.
Justice Turner specially concurred.
ORDER
¶1 Held: (1) In an appeal from a pretrial detention order, arguments made in the notice of
appeal but not in the memorandum (should the defendant choose to file one) are
regarded as abandoned.
(2) Arguments made in the memorandum but not made with specificity in the notice
of appeal are forfeited.
¶2 In these three cases, Rock Island County case Nos. 22-CF-480, 23-CF-316, and
23-CF-317 (our case Nos. 4-23-1514, 4-23-1512, and 4-23-1513, respectively), the circuit court
granted amended petitions by the State to deny defendant, Jacob Martin, pretrial release. The
denials were pursuant to article 110 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS
5/art. 110 (West 2022)), hereinafter as amended by Public Act 101-652, § 10-255 (eff. Jan. 1,
2023), commonly known as the Safety, Accountability, Fairness and Equity-Today Act (Act). See
Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023) (amending various provisions of the Act); Rowe v.
Raoul, 2023 IL 129248, ¶ 52 (setting the Act’s effective date as September 18, 2023). Defendant
appeals in all three cases. We hold that he has either abandoned or forfeited the arguments he
makes in these appeals. Therefore, we affirm the circuit court’s judgments in these three cases.
¶3 I. BACKGROUND
¶4 On September 18, 2023, the circuit court held a pretrial detention hearing, in which
the prosecutor made a proffer regarding one of the three cases on appeal: case No. 22-CF-480 (our
case No. 4-23-1514). Essentially, the proffer was that defendant was in a stolen vehicle, exited the
vehicle and ran, threw clothing and a gun as he was running, and made an incriminating statement
after the police caught him and arrested him.
¶5 After this proffer, defense counsel argued the prosecutor had come forward with no
evidence that defendant was a real and present threat to anyone or to the community. The circuit
court inquired if it could “take judicial notice of the facts [it] had learn[ed]” at the preliminary
hearing in case Nos. 23-CF-316 (our case No. 4-23-1512) and 23-CF-317 (our case No. 4-23-
1513). Defense counsel responded with a question of his own:
“So if you take judicial notice of those, you would take judicial notice of those in
consideration as to whether or not he is to be detained on 480, which is detainable?
THE COURT: Yes.
[DEFENSE COUNSEL]: I object.
THE COURT: Well, that’s what I’m going to do.
[DEFENSE COUNSEL]: Okay.
THE COURT: So, based on the facts that came in front of me at the
preliminary hearings on those two *** as well as his history in the judicial
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delinquency system which he was repeatedly sentenced to Department of
Corrections, and he’s continued to show absolutely not only no respect for law, but
endangering the lives of the community particularly the lives of law enforcement.
He needs to be detained.
***
I’ll detain him on 480 ***.”
¶6 The prosecutor then asked the circuit court, “Can I have it on the two more recent
ones as well?”—that is, case Nos. 23-CF-316 and 23-CF-317. Defense counsel remarked, “I don’t
see any other detainable offenses.” The prosecutor rejoined, “They can be detainable if we can
prove willful flight or dangerousness.” The court agreed that “[t]hey could be detainable on willful
flight.” Defense counsel asked, “But was it alleged? Which ones?” The court said, “I will allow
the State to amend [its] petition based on the facts as I determine them to be, which would show
that he is not only a danger to the public but a threat to flight.” Defense counsel objected, and the
court acknowledged that the amendment would be over defense counsel’s objection. After the
court admonished defendant on his right to appeal within 14 days, the hearing was adjourned. (We
note that the 14-day period for appealing does not begin until the court enters its written detention
order (see Ill. S. Ct. R. 604(h)(2) (eff. Sept. 18, 2023)) and that the court did not do so until
November 30, 2023.)
¶7 After this first pretrial detention hearing, which turned out to be limited to case No.
22-CF-480, the State filed amended petitions for the denial of pretrial release in all three cases.
The amended petitions were a change from the original petitions in that the amended petitions
included an allegation that defendant was prone to willful flight.
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¶8 The second pretrial detention hearing was held on November 30, 2023. It was a
consolidated hearing in all three cases.
¶9 A. Case No. 4-23-1512
¶ 10 In case No. 4-23-1512 (Rock Island County case No. 23-CF-316), the information
was made up of four counts. Count I charged defendant with possession of a stolen motor vehicle
(625 ILCS 5/4-103(a)(1) (West 2022)), specifically, a Honda comfortable runabout vehicle
(CR-V). Count II charged him with criminal damage to government supported property (720 ILCS
5/21-1.01(a)(1) (West 2022)) in that he knowingly damaged a squad car owned by the Rock Island
Police Department. Count III charged him with aggravated assault (id. § 12-2(c)(7)) in that he
knowingly ran the Honda into a vehicle driven by Alex Bowman. Count IV charged defendant
with aggravated fleeing or an attempt to elude a peace officer (625 ILCS 5/11-204.1(a)(1) (West
2022)) in that, in disregard of the flashing emergency lights on the squad car of Rock Island police
officer Tyler Evans, he fled Evans, exceeding the posted speed limit by at least 21 miles per hour.
¶ 11 On May 9, 2023, in a preliminary hearing (of which, as we have noted, the circuit
court took judicial notice), Brett Buchen of the Rock Island Police Department testified
substantially as follows. On March 16, 2023, in Rock Island, Illinois, at approximately 6:31 p.m.,
Rock Island police officer Alex Bowman reported that he saw a Honda traveling east on 11th
Avenue at its intersection with 8th Street. The Honda was going fast, and Bowman knew that
(1) the Honda had been reported stolen and (2) the Honda “had also been involved in numerous
inciden[ts] of driving recklessly, swerving at officers both on foot and in squads and attempting to
get officers to pursue that vehicle.” Bowman, who was in uniform and in a marked squad car,
turned east onto 7th Avenue and saw the Honda now traveling west on that avenue, toward him.
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The two of them, Bowman and the Honda, turned south onto 11th Street, and the Honda pulled up
alongside Bowman, on the passenger side of his squad car.
¶ 12 Buchen continued:
“Officer Bowman said he was able to look over and see the driver of the
vehicle, identified him as [defendant], who he knows from many previous
encounters. He had a mask on that was only covering only from his lips down, and
he was holding a cell phone up appearing to be possibly recording as he pulled up
next to the side.
Officer Bowman said that the vehicle then started swerving at his car, trying
to hit his car ***.”
¶ 13 The two vehicles turned west onto 12th Avenue, and Bowman turned off into an
alley, allowing the Honda to continue west on 12th Avenue. When Bowman emerged from the
alley and turned west onto 13th Avenue, a one-way street, he saw the Honda “sitting at 11th Street
and 13th Avenue parked in the wrong lanes of travel[,] facing south[ ].” The Honda “then turned
and came the wrong way down 13th Avenue and struck Bowman’s car on the driver’s side through
to the bumper and then proceeded east[ ].” The resulting damage to the squad car was $4169.43.
¶ 14 Another police officer, who had been listening to the radio traffic, pursued the
Honda. “[T]hat pursuit went through several parts of the city,” Buchen testified, “ultimately
coming out on the Milan Beltway, speeds reaching over 100 miles an hour, when it was
discontinued because they lost sight of the vehicle.” In fleeing the police in this high-speed chase,
defendant ran 7 red lights and 13 stop signs.
¶ 15 On November 29, 2023, the State filed an amended petition for the denial of pretrial
release. In its amended petition, the State alleged that the circuit court should deny pretrial release
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because defendant was “charged with a forcible felony, or another felony which involves the threat
of or infliction of great bodily harm or permanent disability or disfigurement and the defendant’s
pretrial release poses a real and present threat to the safety of any person or persons or the
community.” See 725 ILCS 5/110-6.1(a)(1.5) (West 2022). The amended petition further alleged
that defendant “ha[d] a high likelihood of willful flight to avoid prosecution” (see id.
§ 110-6.2(a)(8)) and that he committed the present charged offenses while he was on pretrial
release in Rock Island County case Nos. 22-CF-656, 22-CF-675, and 22-DV-190.
¶ 16 In the pretrial detention hearing on November 30, 2023 (the second pretrial
detention hearing), the proffer by the prosecutor was substantially the same as Buchen’s testimony
in the preliminary hearing—again, a hearing of which the circuit court had announced it would
take judicial notice. The proffer made only two additions to the testimony that Buchen had given
in the preliminary hearing. First, “defendant was on pretrial release in cases 22-CF-656,
22-CF-675, and 22-DV-190 and is charged with a new felony offense.” Second, “Officer Bowman
spoke to Rodney Scott, who stated he observed the [sport utility vehicle] intentionally turn around
and strike Officer Bowman’s squad [car,] corroborating Bowman’s version of the events.”
¶ 17 At the conclusion of this second detention hearing, the circuit court found as
follows:
“23-CF-316, I find by clear and convincing evidence that the proof is
evident and the presumption great that he committed the offense—the qualifying
offenses, aggravated assault, a forcible felony. I also find by clear and convincing
evidence that he poses a real and present threat to the safety of the public as well as
the specific persons in our community who take the obligation to access [sic] police
officers, and he has specifically endangered police officers with his actions not just
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in this specific case, but in—repeatedly in other cases and his actions of fleeing and
eluding. So he’s a risk of flight and he’s a danger.
And once again, based on his history, the facts before me, the number of
fending—pending felonies, his age, and his total disdain for any court orders or rule
of law, I find that there are no conditions or series of conditions that could be
imposed that would prevent him from endangering the public, police officers, or
ensure his attendance at court.”
¶ 18 On November 30, 2023, the circuit court entered a written order for detention,
which, in its caption, bore all three case numbers (22-CF-480, 23-CF-316, and 23-CF-317). For
the following reasons, the order found that “less restrictive conditions would not assure safety of
any person or persons or the community”:
“nature and circumstances of the offense
History and characteristic of offense
age of defendant.”
The order further found that “defendant pose[d] a real and present threat of willful flight” because
of the “repeated flight of defendant from police.”
¶ 19 B. Case No. 4-23-1513
¶ 20 In case No. 4-23-1513 (Rock Island County case No. 23-CF-317), the information
was made up of three counts. Count I charged defendant with the possession of a stolen motor
vehicle (625 ILCS 5/4-103(a)(1) (West 2022)), namely, a Nissan Sentra. This offense was a Class
2 felony. See id. § 4-103(b). Count II charged him with aggravated fleeing or an attempt to elude
a peace officer (id. § 11-204.1(a)(1)) in that he disregarded the emergency lights on the squad car
of a Rock Island police officer, Zachary Costas, and fled Costas by driving at least 21 miles per
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hour over the posted speed limit. Count III charged defendant with aggravated fleeing or an attempt
to elude a peace officer (id. § 11-204.1(a)(4)) in that when fleeing Costas, defendant disobeyed
two or more traffic devices.
¶ 21 In its amended petition for the denial of pretrial release, the State claimed that
pretrial release should be denied because defendant was “charged with *** a felony offense other
than a Class 4 offense” and “ha[d] a high likelihood of willful flight to avoid prosecution.” See
725 ILCS 5/110-6.1(a)(8) (West 2022).
¶ 22 In the preliminary hearing on May 9, 2023, Officer Buchen testified substantially
as follows regarding this case. On March 17, 2023, at 8:09 p.m., Rock Island police officers
Andrew Eagle and Zachary Costas were on patrol in a fully marked squad car. When stopped at
an intersection, they saw a white Nissan Sentra pull up to the intersection. Costas was aware that
the Nissan had been reported stolen. The police officers shone their spotlight on the driver of the
Nissan and, from “multiple contacts with him,” recognized him as defendant. He was wearing a
black jacket and black beanie, and he appeared to reach under the driver’s seat. The police officers
turned on the emergency lights and siren of their squad car. Defendant sped away, going west onto
21st Avenue, and Eagle and Costas pursued him. “[T]he speeds reached up to 135 miles an hour
in the 70 mile an hour zone on I-280, [and defendant] and his vehicle were still pulling away from
[the] officers.” Defendant “disregarded [three] stop signs *** during the pursuit on top of the
speeds that were reached.” Eventually, the stolen Nissan was found in an alley behind defendant’s
mother’s house, in the 500 block of 17th Avenue in East Moline. The police arrested defendant at
that address. A day later, defendant’s mother turned over the keys of the Nissan to the police.
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¶ 23 At the pretrial detention hearing of November 30, 2023, the proffer by the
prosecutor added no material facts to the testimony Buchen had given regarding case No.
23-CF-317 at the preliminary hearing.
¶ 24 At the conclusion of the pretrial detention hearing, the circuit court found as
follows:
“23-CF-317, I find by clear and convincing evidence that the proof is
evident and presumption great that [defendant] committed the qualifying offense.
Based on flight, he’s got a couple of felonies. He fled at 135 miles an hour down
the Milan Beltway, a busy thoroughfare, endangering everyone that was on the road
at the time. He had numerous pending felonies at the time. His repeated flight from
the officers indicates, in my opinion, that that is an intentional conduct with a
purpose to thwart the judicial process by preventing his apprehension.
I also find that in the court—recent appellate court rulings that we’ve
received so far, being out on bond under the prior law is considered a form of
pretrial release. The new law—statute just eliminates the possibility of imposing as
a condition of pretrial release the requirement that cash bond be posted. He was on
pretrial release when these offenses were committed.
So for all those reasons, he is ordered to be detained. There are no conditions
that could possibly provide for the safety of the public or ensure his attendance at
court.”
¶ 25 C. Case No. 4-23-1514
¶ 26 In case No. 4-23-1514 (Rock Island County case No. 22-CF-480), the information
was made up of two counts. Count I charged defendant with possession of a stolen motor vehicle
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(625 ILCS 5/4-103(a)(1), (b) (West 2022)), specifically, a Toyota Avalon. Count II charged him
with aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1), (3)(A-5), (C) (West 2022))
in that while he was not on his land, in his legal dwelling or fixed place of business, or on the land
or legal abode of another as an invitee, he had on his person a 9-millimeter pistol, “uncased, loaded,
and immediately accessible at the time of the offense,” and he had not been issued a firearm
owner’s identification card (FOID) or a concealed carry license (CCL) or permit.
¶ 27 In its amended petition for the denial of pretrial release, the State claimed that not
only was aggravated unlawful use of a weapon a detention-eligible offense (see 725 ILCS
5/110-6.1(a)(6)(O) (West 2022)), but defendant “ha[d] a high likelihood of flight to avoid
prosecution” (see id. § 110-6.1(a)(8)).
¶ 28 At the pretrial detention hearing of November 30, 2023, the prosecutor gave
substantially the following proffer. On June 27, 2022, at 4:01 p.m., a police officer named
Schroeder saw a Toyota Avalon that had been stolen from someone in Hampton, Illinois. The
driver of the Toyota was “wearing dark clothing and a ski mask in broad daylight,” and “[t]here
had been previous calls about the car driver driving recklessly.” Defendant got out of the Toyota
and ran, “throwing clothing and a phone on to the ground while keeping something in his hand.”
Chasing defendant on foot, Eagle caught up with him and tackled him. Defendant had on his person
“the key fob of the stolen car.” A cell phone was on the ground.
¶ 29 The prosecutor continued:
“Sergeant Anderson found a gun laying on the ground at a different location.
Defendant claims that he got the vehicle from a guy named Antonio Brown. He
admitted to having the gun in the car and to throwing it. He state—he is wearing a
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ski mask—he stated he was wearing a ski mask because people were trying to kill
him. There was a bullet hole in the vehicle that was stolen.
The defendant has no FOID card and no [CCL].”
¶ 30 The circuit court found as follows:
“So in 22-CF-480, I do find by clear and convincing evidence that the proof is
evident and the presumption great that he committed the qualifying offense of
unlawful use of a weapon, which is—carries a mandatory prison sentence for the
dangerousness standard.
In light of the specific facts of the case as proffered, he was in the possession
of a weapon and when he was stopped, he fled from the police, along with the very
important fact that he later committed new offense while out on bond on that
offense and repeatedly tried to avoid arrest and fled from the police in 23-CF-316
at over 100 miles an hour and 23-CF-317 over 135 miles an hour.
Also considering his history, his age, which he’s 20, and the fact that he has
shown a complete not just lack of respect for, but disdain for any law or court order,
I find in that case he’s not only a danger to the public but a risk of flight and that
there are no reasonable conditions which could be imposed that would protect the
public or ensure his attendance at court.”
¶ 31 At the conclusion of the hearing of November 30, 2023, after the circuit court
announced its denial of pretrial release in all three cases, defense counsel said:
“MR. BREEDLOVE: [Defendant], I see you’re raising your hand. I’d
advise you not to speak at this point. The judge has ruled. Anything that you say is
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being recorded. The State could use it against you. We will be back tomorrow
morning at 8:30 on your pretrial and I’ll discuss whatever you need to discuss then.
THE DEFENDANT: Breedlove, can I—can I please speak to you real
quick, please?
MR. BREEDLOVE: Yes. But not in—not here with the prosecution and the
judge. Okay? We'll speak tomorrow morning. Okay?”
Against the advice of defense counsel, defendant proceeded to argue, “[T]he Supreme Court held
that the Second Amendment guarantees one’s right to bear arms in public for self-defense.”
Defense counsel interrupted defendant, telling him, “[T]his is something that you and I need to
talk about. I know what you want to bring up. Now is not the—the time to bring it up. We will
address it.” Defendant then accused defense counsel of rendering ineffective assistance, and he
demanded that defense counsel be taken off his case—a demand the court refused.
¶ 32 The circuit court then admonished defendant on his right to appeal the pretrial
detention order within 14 days. Defendant said:
“THE DEFENDANT: But, Breedlove—can I please make the appeal,
Breedlove?
THE COURT: Wait. Wait. Wait. [Defendant.] Is there anything else you
want to talk to him about right now?
THE DEFENDANT: Like, Breedlove, can you please talk to me now,
please? Can you please come up here and talk to me right now?
MR. BREEDLOVE: I will—I will be filing your notice of appeal, but I
can’t—I am not going to come speak with you right now. We are set tomorrow
morning at 8:30. I will speak with you in the morning.”
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¶ 33 II. ANALYSIS
¶ 34 A. Abandonment of the Arguments in the Notices of Appeal
¶ 35 Defendant has filed a single memorandum, which he intends to be applicable to all
three of these consolidated appeals. As we will explain below, he makes three arguments in his
memorandum.
¶ 36 1. The Memorandum
¶ 37 First, the memorandum argues that, in case No. 4-23-1514 (Rock Island County
case No. 22-CF-480), section 24-1.6(a)(1) and (3)(C) of the Criminal Code of 2012 (720 ILCS
5/24-1.6(a)(1), (3)(C) (West 2022))—a section defining the offense of aggravated unlawful use of
a weapon—is facially unconstitutional under the second amendment (U.S. Const., amend. II) as
interpreted by New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), and
therefore cannot serve as the basis for denying him pretrial release. Defendant is charged with this
offense in count II of the information.
¶ 38 Second, the memorandum argues that, in case No. 4-23-1512 (Rock Island County
case No. 23-CF-316), it was unproven that aggravated assault (720 ILCS 5/12-2(c)(7) (West
2022)), as charged in count II of the criminal complaint, involved “the threat of or infliction of
great bodily harm or permanent disability or disfigurement” (725 ILCS 5/110-6.1(a)(1.5) (West
2022)).
¶ 39 Third, the memorandum argues that, in all three appeals, defendant was denied his
right to counsel under the sixth amendment (U.S. Const., amend. VI) when his appointed counsel
refused to speak with him immediately at the conclusion of the pretrial detention hearing, telling
defendant he instead would speak with defendant the following morning.
¶ 40 2. The Notice of Appeal in Case No. 4-23-1512
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¶ 41 Defendant makes the following arguments in his notice of appeal in case No.
4-23-1512.
¶ 42 First, “[t]he State failed to meet its burden of proving by clear and convincing
evidence that the proof is evident or the presumption great that defendant committed the offense(s)
charged.” See 725 ILCS 5/110-6.1(e)(1) (West 2022). On the blank lines following that argument
is the following explanation:
“The proffered testimony indicates that the pursu[ ]it was disregarded of the
offending vehicle. The sole alleged identification comes from a police officer
(Bowman) who alleges to have made it while the perpetrator was wearing a black
face covering from his lips down, was holding a cell phone in front of his face and
was while the perpetrator was swerving and driving wildly, and positioning the
vehicle to strike officer Bowmans. The pursuit was not followed after vehicle
speeds reached 100 mph, and there is no indication of any kind that the defendant
was the perp that meets the states burden.”
¶ 43 Second, “[t]he State failed to meet its burden of proving by clear and convincing
evidence that defendant poses a real and present threat to the safety of any person or persons in the
community, based on the specific, articulable facts of the case.” See id. § 110-6.1(e)(2). On the
explanation lines is the following additional argument: “Based on the specific and articulable facts
of the case, *** there is no evidence to show that it was the defendant that committed any of the
alleged acts.”
¶ 44 Third, “[t]he 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
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the case, or defendant’s willful flight.” See id. § 110-6.1(e)(3). Defendant argues on the
explanation lines:
“The defendant poses no specific threat.
The defendant could be placed on a [Global Positioning System] monitor,
which can determine if the defendant ever exceeds a specified speed limit to ensure
there are no car chases involving the defendant.”
¶ 45 Fourth, “[t]he court erred in its determination that no condition or combination of
conditions would reasonably ensure the appearance of defendant for later hearings or prevent
defendant from being charged with a subsequent felony or Class A misdemeanor.” See § 110-6(a).
The explanation lines further argue, “There is no evidence to show that the defendant would be
charged with additional crimes relevant to the this [sic] determination.”
¶ 46 Fifth, on the explanation lines for “Other,” defendant makes the following
additional arguments:
“In considering willful flight, the court erred in conflating willful flight
from arrest with willful flight from prosecution. Here, there is no evidence the
defendant would be a willful flight from prosecution, even assuming the defendant
did commit the offenses as described in the proffer, the defendant would only have
been fleeing arrest and apprehension, not prosecution.
The court considered evidence outside the scope of this case by conducting
a combined hearing and entering a combined order on multiple charges at the same
time.
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The court used a ‘check-the-box’ form and the ‘nature and circumstances’
and ‘history and characteris[tics] in the 6.1(h)(1) section ignores legislative intent
and law of this case for need of a detailed factual basis.
Defendant was not on pretrial release as alleged in state’s petitions.”
¶ 47 3. The Notice of Appeal in Case No. 4-23-1513
¶ 48 Defendant makes the following arguments in his notice of appeal in case No.
4-23-1513.
¶ 49 First, “[t]he State failed to meet its burden of proving by clear and convincing
evidence that the proof is evident or the presumption great that defendant committed the offense(s)
charged.” See id. § 110-6.1(e)(1). On the blank lines following that argument is the following
explanation: “There is no evidence in the proffer to show how or why Eagle or Costas were able
to identify the defendant. Without that information, the state has not met its burden related to the
standard of showing this defendant committed the offenses charged.”
¶ 50 The second, third, fourth, and fifth arguments and accompanying explanations in
case No. 4-23-1513 are identical to the second, third, fourth, and fifth arguments and
accompanying explanations in case No. 4-23-1512.
¶ 51 4. The Notice of Appeal in Case No. 4-23-1514
¶ 52 Defendant makes the following arguments in his notice of appeal in case No.
4-23-1514.
¶ 53 First, “[t]he State failed to meet its burden of proving by clear and convincing
evidence that the proof is evident or the presumption great that defendant committed the offense(s)
charged.” See id. § 110-6.1(e)(1). On the blank lines following that argument is the following
explanation:
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“There are bullet holes in the vehicle and the defendant claims he was being
shot at. Given that there may be an affirmative defense of necessity under the
circumstances, the proof is not clear that he committed the alleged offense in either
count I or count II.
In addition, the charge in Count II is unconstitutional.”
¶ 54 Second, “[t]he State failed to meet its burden of proving by clear and convincing
evidence that 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.” See id. § 110-6.1(e)(2). The
explanation lines for this argument are blank.
¶ 55 Third, “[t]he 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, or defendant’s willful flight.” See id. § 110-6.1(e)(3). Defendant argues on the
explanation lines, “The defendant poses no specific threat to any individual or the community
based upon the proffer in this case; rather, there are threats TO defendant from others.”
¶ 56 The fourth and fifth arguments and accompanying explanations in case No.
4-23-1514 are identical to the fourth and fifth arguments and accompanying explanations in case
No. 4-23-1512.
¶ 57 On the authority of People v. Forthenberry, 2024 IL App (5th) 231002, ¶ 42, the
State “maintains that, to the extent [that defendant’s] memorandum makes different arguments
from those in defendant’s notices [of appeal], the arguments in defendant’s notices are forfeited.”
In Forthenberry, the Fifth District held, “[I]f a memorandum is filed, it will be the controlling
document for issues or claims on appeal and we will not reference the notice of appeal to seek out
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further arguments not raised in the memorandum, except in limited circumstances, e.g., to
determine jurisdiction.” Id.¶ 58 In People v. Rollins, 2024 IL App (2d) 230372, ¶ 22, the Second District followed
Forthenberry, holding that if a nonjurisdictional issue is raised in the notice of appeal but is left
out of the memorandum (should the defendant choose to file one), the issue will be regarded as
abandoned. The Second District said, “We deem the filing of a memorandum to reflect that an
appellant has elected to abandon any arguments that were raised in his or her notice of appeal but
not also pursued in the memorandum.” Id.¶ 59 In accordance with Rollins, we conclude that defendant has abandoned all
arguments except the three arguments he makes in his memorandum.
¶ 60 B. Forfeiture of the Arguments in the Memorandum
¶ 61 Defendant’s first argument in his memorandum pertains to case No. 4-23-1514. He
argues that the statute defining the offense of aggravated unlawful use of a weapon (720 ILCS
5/24-1.6(a)(1), (3)(C) (West 2022)) violates the second amendment (U.S. Const., amend. II) as
interpreted by Bruen. Defendant does not specifically make this argument, however, in his notice
of appeal in case No. 4-23-1514. “[Illinois Supreme Court] Rule 604(h) [(eff. Sept. 18, 2023)],
which governs appeals under the Act, states that ‘[t]he Notice of Appeal shall describe the relief
requested and the grounds for the relief requested,’ and the form notice of appeal prescribed by
[Illinois Supreme Court] Rule 606(d) [(eff. Sept. 18, 2023)] requires the defendant to describe
those grounds in detail.” People v. Martin, 2023 IL App (4th) 230826, ¶ 18. The vague assertion,
in the notice of appeal, that “the charge in Count II is unconstitutional” is not a detailed description
of the grounds for relief. Therefore, we hold that the second amendment challenge to the statute
defining the offense of aggravated unlawful use of a weapon is forfeited. See id. ¶ 19.
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¶ 62 The second argument in defendant’s memorandum pertains to case No. 4-23-1514.
He argues it was unproven that aggravated assault (720 ILCS 5/12-2(c)(7) (West 2022)), as
charged in count II of the criminal complaint, involved “the threat of or infliction of great bodily
harm or permanent disability or disfigurement” (725 ILCS 5/110-6.1(a)(1.5) (West 2022)). He did
not make this argument in his notice of appeal in case No. 4-23-1514. Granted, in his notice of
appeal, defendant argued, “The State failed to meet its burden of proving by clear and convincing
evidence that defendant poses a real and present threat to the safety of any person or persons in the
community, based on the specific, articulable facts of the case.” See 725 ILCS 5/110-6.1(e)(2)
(West 2022). That argument, however, addresses the question of a present or future threat, whereas
the argument in defendant’s memorandum addresses the question of a threat in the past (when
defendant allegedly sideswiped Officer Bowman’s squad car). Because those are two significantly
different arguments, the second argument in defendant’s memorandum is forfeited. See Martin,
2023 IL App (4th) 230826, ¶ 19.
¶ 63 The third argument in defendant’s memorandum pertains to all three cases. He
argues he was denied his right to counsel under the sixth amendment (U.S. Const., amend. VI)
when his appointed counsel refused to speak with him immediately at the conclusion of the pretrial
detention hearing, telling defendant he instead would speak with him the following morning.
Defendant did not make this argument in any of his notices of appeal. Therefore, this argument is
forfeited. See id.¶ 64 C. Explanation of Good Cause
¶ 65 Illinois Supreme Court Rule 604(h)(5) (eff. Dec. 7, 2023) provides, “After the
appellant has filed the Notice of Appeal, supporting record, and any memorandum and the time
for filing any response and memorandum has expired, the Appellate Court shall consider and
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decide the appeal within 14 days, except the court may extend the deadline for good cause.”
Because this appeal involves three cases, each with a multitude of issues, we have somewhat
exceeded that deadline. We believe we have good cause for extending the deadline.
¶ 66 III. CONCLUSION
¶ 67 For the foregoing reasons, we affirm the circuit court’s judgments in case Nos.
4-23-512, 4-23-1513, and 4-23-1514.
¶ 68 Affirmed.
¶ 69 JUSTICE TURNER, specially concurring:
¶ 70 I agree with the majority we should affirm the trial court’s judgment but write
separately to note I would have found the trial court did not abuse its discretion in detaining
defendant.
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