People v. Colleran , 2024 IL App (2d) 230604-U ( 2024 )

2024 IL App (2d) 230604-UNo. 2-23-0604
Order filed March 21, 2024
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of McHenry County.
)
Plaintiff-Appellant, )
)
v. ) Nos. 23-CF-1138
) 23-DV-462
)
JASON S. COLLERAN, ) Honorable
) Jeffrey L. Hirsch,
Defendant-Appellee. ) Judge, Presiding.
JUSTICE MULLEN delivered the judgment of the court.
Presiding Justice McLaren and Justice Jorgensen concurred in the judgment.
ORDER
¶1 Held: The order of the trial court denying the State’s petition for detention is not against
the manifest weight of the evidence, but the trial court erred in prohibiting the State
from arguing for conditions of release not contained in its written detention motion.
¶2 I. INTRODUCTION
¶3 The State appeals an order of the circuit court of McHenry County denying its motion to
detain defendant, Jason S. Colleran, in accordance with section 110-6.1 of the Code of Criminal
Procedure of 1963 (Code) (725 ILCS 5/110-6.1 (West 2022)). For the reasons that follow, we
affirm and remand, with directions.
2024 IL App (2d) 230604-U¶4 II. BACKGROUND
¶5 On December 8, 2023, defendant was arrested and charged with two counts of domestic
battery (720 ILCS 5/12-3.2(a)(1), (a)(2) (West 2022)), which were both class 4 felonies based on
defendant’s prior convictions (see 720 ILCS 5/12-3.2(b) (West 2022)). The State also filed two
misdemeanor counts based on the same conduct, but absent the allegation of a previous conviction.
The victim is defendant’s 19-year-old daughter. The State filed a petition to detain defendant on
that day as well.
¶6 A hearing was held on the State’s petition. In support, the State proffered, orally, the
following:
“With regard to the probable cause statement, the State would read as follows. That
without legal justification, the Defendant grabbed and pushed the victim to the floor on a
public roadway causing injury. As a victim’s statement, the State would proffer the
Defendant has been diagnosed with bipolar [disorder]. The victim believes he takes
medication. The victim states that the Defendant is a very violent person in general.”
The State continued, “With regard to the DVRA” (Domestic Violence Risk Assessment), the victim
stated that defendant “consumes alcohol in large amounts as well as cannabis,” “is an alcoholic,”
and “has bipolar disorder that he has not been taking his medication for.” It also indicated that, at
the crime scene, defendant was angry, indifferent, uncooperative, and aggressive. It then outlined
defendant’s criminal history, which includes a ten-year sentence to the Illinois Department of
Corrections (IDOC) for residential burglary in 2017, concurrent with 15 months in the IDOC for
aggravated DUI. The State also apprised the court that, in 2016, defendant was sentenced to 15
months in the IDOC for aggravated DUI and driving while his license was suspended or revoked.
Defendant was sentenced to 180 days in jail and 24 months of probation for possession of a
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2024 IL App (2d) 230604-Ucontrolled substance in 2015; as well as other earlier offenses. The Probation and Court Services
Report indicates defendant had a prior conviction for domestic battery. The State argued that
defendant’s “prior criminal history which is indicative of violent, abusive, and assaultive
behavior,” along with the identity of the victim (who lived with defendant), “the nature of the
threat,” and defendant’s substance abuse and untreated mental health issues rendered him a threat
to the safety of the victim and others.
¶7 The trial court then inquired, “What other evidence do you have that he is not treating for
mental health issues?” The State indicated that this proposition was based on “the statements of
his daughter.” The State did not know how old defendant’s daughter was.
¶8 Defense counsel asked that defendant be released “with standard conditions, as well as a
short stay away in lieu of a permanent no contact order.” He stated defendant’s previous domestic
violence conviction happened over seven years ago. Further, all other violent offenses occurred
when defendant was a juvenile. It noted the charged offense was based upon “a push” and that it
did not involve weapons. The victim suffered a scraped knee that did not require medical attention.
¶9 The trial court then asked the State whether the DVRA used by pretrial services was
“geared towards intimate partner violence as opposed to a parent against what you suspect is an
adult child.” The State replied, “I do not believe it is for intimate partners.” The trial court then
pointed out that it uses the term “partner” repeatedly. We note that the DVRA has a section entitled
“Victim Interview” and asks the root question, “Has your partner (the offender) ever ***” and
there follows nine check-box-questions about the nature of any previous abuse. The document
indicates that defendant threw the victim to the ground on a roadway, where she scraped her knee.
Defendant had previously threatened to kill the victim. He did not have access to a weapon. The
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2024 IL App (2d) 230604-Uvictim responded affirmatively to the question asking whether “the violence has been getting more
severe/frequent.” It also stated that the victim did not feel that she was in danger.
¶ 10 The State reiterated that the victim reported that defendant had substance abuse and
untreated mental health issues. The trial court then stated:
“There is no indication how she knows that. That’s why I asked you what other
evidence you might have. There is evidence that he is drinking on this occasion, and he
appears to be intoxicated. And there is [sic] old convictions for DUIs. But I don’t get the
point of what you are arguing about his mental health disorder if the only evidence you
have of that is a child’s statement, who apparently moved in with him in August, according
to this. That’s why I was wondering if there is any independent basis why you think this is
a relevant factor that the victim says he has a condition, and the victim says he is not taking
medication. But I don’t know how she knows that.”
The State then replied that it believed this information was relevant and the trial court could afford
it whatever weight it deemed appropriated, to which the trial court replied, “Like zero.” It
continued:
“You know you say that all the time, but you come to these, you file petitions, and you
have no other evidence other than what the police say. It is really surprising because there
are serious cases here, and all you do is read to me documents that are in a file.”
¶ 11 The State then requested that, if the trial court determined that defendant was not
detainable, the court impose various conditions, including: that defendant surrender and refrain
from possessing any weapons; that he complete a substance abuse evaluation; that he complete
“[r]andom drops and toxicology”; that he be monitored by GPS; and that he have no contact with
the victim. The trial court noted that the State did not file a petition seeking such conditions:
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2024 IL App (2d) 230604-U“You could file as many petitions as you want. You guys are really good at it. But for some
reason you chose to deny, and you didn’t ask for any additions, nor is that part of your
evidence. Now, you are just making up arguments about why I should put him on GPS
because I happened to ask you why you didn’t meet your burden of proof.”
The trial court then denied the State’s petition:
“All right. The State has the burden of proof here to show by clear and convincing
evidence that they have met all the requirements for pretrial release. They have shown that
this is a detainable offense. They have not met any other requirements to show that he poses
a real and present threat to the safety of any person in the community or that he is a willful
flight [sic], and clearly there are other available conditions, that if we gave it any amount
of critical thought, we would come up with something. So the Court on its own is going to
impose pretrial release conditions that are required for domestic battery.
***
“The State did not file a petition for other conditions. I don’t think other conditions
relating to alcohol use are necessary because that’s not an element of the offense. I’m going
to order a 72 hour stay away from the alleged victim, ***. You must also comply with any
orders of protection that are entered. The State is not asking for any here, but perhaps [the
victim] will be smart enough to get one on her own.”
The State now appeals.
¶ 12 III. ANALYSIS
¶ 13 The State raises three arguments on appeal. First, it argues that the trial court erred in
determining that the State failed to prove that the proof was evident or presumption great that
defendant committed the charged offenses, that defendant’s release posed a threat to any persons
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2024 IL App (2d) 230604-Uor the community, and that no conditions could mitigate that threat. For each item, the State argues
that the trial court erred by finding that its proffered evidence of what the police reported was
insufficient for it to carry its burden. Second, the State asserts that the trial court erred by denying
it an opportunity to seek the imposition of certain pretrial conditions because the State only sought
detention in the petition it filed. The State contends that it should have been allowed to address
conditions of release in the alternative.” Finally, the State asserts that “[t]he trial court
demonstrated a bias against the State and the victim” and asks that we remand the cause for a new
hearing before a different judge.
¶ 14 Generally, a trial court’s decision regarding whether to detain a defendant is reviewed using
a two-part standard. The manifest-weight standard applies to the trial court’s factual
determinations, including whether the proof is evident or the presumption great that the defendant
committed the offenses at issue; whether a risk of flight exists; and whether any conditions of
release could sufficiently mitigate that risk. People v. Trottier, 2023 IL App (2d) 230317, ¶ 13. A
finding is contrary to the manifest weight of the evidence only if an opposite conclusion to that of
the trial court is clearly apparent. In re Jose A., 2018 IL App (2d) 180170, ¶ 17. The ultimate
decision of whether a defendant should be detained is reviewed for an abuse of discretion. Trottier,
2023 IL App (2d) 230317, ¶ 13. An abuse of discretion occurs only when no reasonable person
could agree with the trial court’s decision. People v. Williams, 2022 IL App (2d) 200455, ¶ 52.
Questions of law, such as the construction of statutes, are reviewed using the de novo standard of
review. People v. Swan, 2023 IL App (5th) 230766, ¶ 16. It is well-established that we review the
result at which the trial court arrived rather than its reasoning. People v. Johnson, 208 Ill. 2d 118,
128 (2003). Moreover, as the appellant, the burden is on the State to establish the existence of error
6
2024 IL App (2d) 230604-Uin the record. In re Alexander R., 377 Ill. App. 3d 553, 557 (2007); McGann v. Illinois Hospital
Ass’n, Inc., 172 Ill. App. 3d 560, 565 (1988).
¶ 15 A. Sufficiency Of The Evidence
¶ 16 When the State files a petition to detain a defendant in accordance with section 110-6.1 of
the Code (725 ILCS 5/110-6.1 (West 2022)), it bears the burden of establishing, by clear and
convincing evidence: (1) that the proof is evident or the presumption great that the defendant
committed the offense (725 ILCS 5/110-6.1(e)(1) (West 2022)); (2) that the defendant’s release
would pose a real and present threat to any persons or the community (725 ILCS 5/110-6.1(a)(1)-
(7), (e)(2) (West 2022)) or a high likelihood of flight (725 ILCS 5/110-6.1(a)(8), (e)(3) (West
2022)); and (3) that no combination of conditions could mitigate those risks (725 ILCS 5/110-
6.1(e)(3) (West 2022)). Our supreme court has explained, “Evidence is clear and convincing if it
leaves no reasonable doubt in the mind of the trier of fact as to the truth of the proposition in
question.” Chaudhary v. Department of Human Services, 2023 IL 127712, ¶ 74. The trial court
determined that the State failed to carry its burden regarding any of these three elements.
¶ 17 As the State’s arguments regarding each element are essentially the same, we will address
them together. The State argues that the trial court “improperly disregarded proffered evidence
presented pursuant to” section 110-6.1(f)(2) of the Code (725 ILCS 5/110-6.1(f)(2) (West 2022)).
It adds, “The court stated that the State came to the hearing with no other evidence than what the
police said” and “The Court said that this is really surprising, implying that the State must present
more than proffered information from law enforcement to meet its burden.” In fact, the trial court
stated, “It is really surprising because there are serious cases here, and all you do is read to me
documents that are in a file.” The State’s point is well founded. Section 110-6.1(f)(2) expressly
contemplates the State proceeding in this manner: “The State or defendant may present evidence
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2024 IL App (2d) 230604-Uat the hearing by way of proffer based upon reliable information.” 725 ILCS 5/110-6.1(f)(2) (West
2022). Indeed, such proffers have been held sufficient for the State to carry its burdens. See, e.g.,
People v. Horne, 2023 IL App (2d) 230382, ¶ 24.
¶ 18 We note, however, that the police synopsis itself—if there was one—is not included in the
record. Rather, the State simply read into the record “[t]hat without legal justification, the
Defendant grabbed and pushed the victim to the floor on a public roadway causing injury.” The
basis for this assertion does not appear in the record. Thus, it provides no information regarding
the evidence the State intends to present against defendant. The DVRA indicates that audio/visual
recordings were taken of statements made by the victim, the defendant, and by two eyewitnesses
to the alleged offense, but again none of these were before the trial court. Similarly, the State read
parts of a statement by the victim indicating that she believed defendant had been diagnosed with
bipolar disorder and that he takes medication. She also characterized him as “a very violent person
in general.” Again, the basis for these statements is not of record. These omissions provide a reason
to attribute diminished weight to these assertions. See Cohen v. Washington National Insurance
Co., 2 Ill. App. 3d 149, 151 (1971) (quoting Houswerth v. Seidel, 47 Ill. App. 2d 112, 117 (1964))
(“[W]e cannot give weight to the unsupported assertion of counsel, dehors the record.”).
¶ 19 The trial court also placed little weight on information derived from a document entitled,
“McHenry County Domestic Violence Risk Assessment” (DVRA), which was completed by a law
enforcement officer. The DVRA memorializes information provided by the victim, including that
defendant had threatened to kill her, that “violence has been getting more severe/frequent,” that
defendant uses “alcohol in large amounts and cannabis,” and that defendant “is an alcoholic and
has bi-polar disorder that he is not taking his medicines for.” It also indicates that defendant has
no access to weapons and that the victim refused medical treatment and did not feel she was in
8
2024 IL App (2d) 230604-Udanger. The trial court discounted this information because it was recorded on a document that is
typically used for violence between intimate partners rather than parents and children (the court
noted that the document repeatedly refers to the victim’s partner, such as asking “Do you believe
your partner could kill you?”). While this may have been a valid criticism had the DVRA been an
actuarial instrument used to predict further violence (cf. People v. Lind, 307 Ill. App. 3d 727, 739
(1999) (“Any weakness in the basis of an expert’s opinion goes to the weight of the testimony.”),
it is unclear to us why the nature of the document in which the victim’s statements were recorded
by law enforcement would affect their weight. Nevertheless, the majority of the propositions
contained in the DVRA were conclusory and, as above, do not permit us to determine that the trial
court’s decisions were against the manifest weight of the evidence.
¶ 20 We further note that the State relies on defendant’s criminal record, which includes a 2016
domestic violence conviction, a burglary, and convictions for DUI as well as other alcohol and
drug related offenses. The trial court placed diminished weight on the domestic violence
conviction in 2016, as “it was some time ago” (we note that defendant was sentenced to 10 years
imprisonment in 2017). While the existence of a prior domestic violence conviction would militate
in favor of a finding of dangerousness, that they were temporally removed from the current charges
was a legitimate reason to attribute them diminished weight. See People v. Delgado, 2024 IL App
(2d) 230483-U, ¶¶ 13-14.
¶ 21 In sum, given the record provided here by the State, we cannot say that the trial court’s
findings as to whether the proof was evident or the presumption great and as to whether the
defendant was a threat to persons are contrary to the manifest weight of the evidence. Nor can we
say that no reasonable person would agree that defendant should be released; therefore, the trial
court’s decision is not an abuse of discretion.
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2024 IL App (2d) 230604-U¶ 22 B. Conditions Of Release
¶ 23 The State argues that “[t]he [trial court] failed to allow the State to argue for pretrial
conditions, because the State only sought detention in its written petition” and that it “should have
been permitted to argue in the alternative when the [trial] court denied the State’s petition to
detain.” It notes that “[t]here is no statutory requirement that requests for conditions be made in
writing” and that “[t]here is no prohibition on the State recommending conditions if the [trial] court
denies a request for detention.” We agree.
¶ 24 Before the trial court, the State attempted to address what conditions would be appropriate
if the trial court denied its petition to detain:
“If this Court’s position is that the Defendant would not be detainable today, then the State
would be asking for the mandatory conditions. That the Defendant not leave the State. That
he surrender and not possess any firearms or other dangerous weapons. That he complete
a substance abuse evaluation. Random drops and toxicology. That there be GPS monitoring
of at least five miles. And that there be a no contact order to be entered.”
The trial court declined to consider the State’s requests: “But that’s not what you argued. I mean
that’s not what you filed. You filed a petition to detain him.” Instead, the trial court only required
defendant to appear in court as ordered; submit himself to the orders and processes of the court;
not violate any criminal statute; comply with all terms of pretrial release; apprise the court clerk
of changes of address; and have no contact with the victim for 72 hours.
¶ 25 As the State points out, nothing in the statute requires it to file a motion or petition to
advocate for particular conditions of release. We note that section 110-6.1(a) of the Code expressly
requires the State to proceed by “verified petition” when it seeks to detain a defendant. 725 ILCS
5/110-6.1(a) (West 2022)). Conversely, regarding imposing conditions upon release, section 110-
10
2024 IL App (2d) 230604-U5(c) simply states: “The court shall impose any conditions that are mandatory under subsection (a)
of Section 110-10. The court may impose any conditions that are permissible under subsection (b)
of Section 110-10.” 725 ILCS 5/110-5(c) (West 2022). Unlike section 110-6.1(a), section 110-5(c)
contains no requirement that the State file a petition or motion. Section 110-10, which is referenced
in section 110-5(c), similarly contains no such requirement. See 725 ILCS 5/110-10 (West 2022).
Further, section 110-10(b)(9) expressly authorizes a trial court to consider “other reasonable
conditions” if “it is determined that they are necessary” without mentioning the need for filing a
motion. 725 ILCS 5/110-10(b)(9) (West 2022). Absent an ambiguity (which defendant does not
suggest is present here), “a court must construe the statute as enacted without adding exceptions,
conditions, or limitations to the legislature’s clearly expressed intent.” Clay v. Kuhl, 297 Ill. App.
3d 15, 20 (1988). Since no such condition is contained in the statute, the trial court erred as a matter
of law in failing to permit the State to advocate for conditions of release, authorized by law,
regardless of the absence of a written motion seeking them.
¶ 26 C. Trial Court Bias
¶ 27 Finally, the State has raised the issue of trial court bias. Whether the trial judge’s conduct
requires reversal is reviewed de novo. People v. Fisher, 2023 IL App (4th) 220717, ¶ 31. A trial
court may not show bias or prejudice against either party and must conduct itself in a fair and
impartial manner. People v. Moore, 2023 IL App (1st) 211421, ¶ 115. Judicial restraint in the
court’s conduct and remarks is required throughout all the court’s dealings with the litigants who
come before it. People v. Johnson, 2012 IL App (1st) 091730, ¶ 80. A trial judge is presumed to be
impartial, and it is the burden of the party challenging the court's impartiality to overcome that
presumption. People v. Romero, 2018 IL App (1st) 143132, ¶ 96. To show bias, a defendant must
“demonstrate that the judge displayed ‘active personal animosity, hostility, ill will, or distrust
11
2024 IL App (2d) 230604-Utoward the [party].’ ” People v. Shelton, 401 Ill. App. 3d 564, 583 (2010). The fact that a judge
displayed irritation or displeasure with a party “is not necessarily evidence of judicial bias….”
People v. Jackson, 205 Ill. 2d 247, 277. In this case, while the record certainly reveals some judicial
displeasure, both the record and the State’s argument fall short of establishing what is required to
show bias. See People v. Fisher, 2023 IL App (4th) 220717, ¶¶ 30-31; People v. Faria, 402 Ill.
App. 3d 475, 482 (2010) (“Perhaps the court could have shown a touch more patience ***.”).
¶ 28 IV. CONCLUSION
¶ 29 In light of the foregoing, we remand for a new hearing where the State may seek additional
conditions of release, and we otherwise affirm. The conditions of release imposed by the trial court
shall remain in effect pending that hearing. We express no opinion as to whether any additional
conditions ought to be imposed.
¶ 30 Affirmed in part, vacated in part, and remanded with instructions.
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