People v. Odom , 2024 IL App (1st) 232419-U ( 2024 )

2024 IL App (1st) 232419-UNo. 1-23-2419B
Order filed February 29, 2024
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit
) Court of Cook County.
Plaintiff-Appellee, )
)
vs. ) No. 23 CR 8164
)
MARQUIS ODOM, ) Honorable
) Thomas J. Hennelly,
Defendant-Appellant. ) Judge, presiding.
JUSTICE MARTIN delivered the judgment of the court.
Justices Hoffman and Ocasio concurred in the judgment.
ORDER
¶1 Held: The circuit court’s order imposing electronic monitoring is reversed where the court
failed to comply with our previous mandate.
¶2 The defendant Marquis Odom appeals the circuit court’s order imposing electronic
monitoring (EM) as a condition of pretrial release, pursuant to section 110-5 of the Code of
Criminal Procedure of 1963 (Code) (725 ILCS 5/110-5 (West 2022)). Odom was arrested and
indicted prior to the effective date of Public Act 101-652 (eff. Jan. 1, 2023), commonly known as
the Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act (Act).1 On September 20,
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 public act.” Rowe v. Raoul, 2023 IL
129248, ¶ 4 n. 1. Raoul lifted the stay of pretrial release provisions and set an effective date of Sep. 18,
2023. Id. at ¶ 52; Pub. Acts 101-652, § 10-255, 102 1104, § 70 (eff. Jan. 1, 2023).
No. 1-23-2419B
2023, the State filed a petition to deny Odom pretrial release. Following a hearing, the circuit court
denied the petition but imposed EM as a condition of release. On appeal, we reversed and
remanded for the court to comply with section 5/110-5(g) of the Code. 725 ILCS 5/110-5(g) (West
2022). On remand, the circuit court again imposed EM as a condition of release. Odom appeals.
For the following reasons, we reverse and remand.
¶3 I. BACKGROUND
¶4 A full recitation of the facts regarding the State’s verified petition to deny pretrial release,
the subsequent hearing, and the circuit court’s resulting order can be found in this court’s order
from Odom’s previous pretrial appeal. People v. Odom, 2023 IL App (1st) 231751-U (Odom I)
(reversing the court’s order imposing EM and remanding for compliance with 5/110-5(g) of the
Code). The court conducted another detention hearing on December 15, 2023. The State proceeded
by way of proffer—offering a nearly identical recount of the incident leading to Odom’s arrest.
Defense counsel argued that the State had offered no new evidence and highlighted that the court
had previously determined Odom was not dangerous. Counsel argued that EM was therefore an
inappropriate pretrial release condition. Based upon the court’s previous findings and Odom I,
counsel asked that Odom be released with basic conditions.
¶5 The court again denied the State’s motion, ruling:
“Okay. Well, once again I’ve considered the petition and the proffer made by the
People, the Defendant’s presentation in mitigation and to be consistent, I am not persuaded
that detention is appropriate, so I’m going to deny the State’s request for a pre-trial
detention, however, I do believe that based on the facts of the case the Defendant entering
a public place; specifically a gas station, with a loaded Beretta in his pocket and that he has
a prior conviction for the same offense; aggravated unlawful use of a weapon, I’m going
to decline the Defense request that no conditions of pre-trial release be imposed and I am
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going to impose Electronic Monitoring; Sheriff’s Electronic Monitoring, based on the fact
that I believe that Mr. Odom while carrying a loaded gun in a public area with his prior
criminal background does present a danger to the community based on the facts that I heard
and for those reasons, the Court will place Mr. Odom on Sheriff’s Electronic Monitoring
per the order.”
Defense counsel then asked the court if it believed that its order was consistent with our mandate
in Odom I. The court replied,
“I do. If you want to appeal me again, Mr. Chatman. If you read the opinion, they
criticized me for not phrasing the fact that he—that he didn’t—there’s no question I thought
he was [sic] a flight risk, but because I did not enter the fact that he was danger to a
particular person or the community at large. Upon my review of the order, that was not
written in on the petition, so I believe he is a danger to the community at large. Maybe I
didn’t articulate that at the time, but that’s what I believe and that’s the reason why I believe
he should be placed on Sheriff’s Electronic Monitoring.”
¶6 In response, defense counsel noted that the record reflects that the court found that Odom
was not a danger to any person or persons. The court responded,
“I don’t believe that I found that because I think that’s why I put him on *** EM
in the first place because I found that he was a danger to the community; not any particular
person, and if I didn’t I am so finding now. As the mandate indicated I can conduct a
hearing which is what I just did.”
Before entering its written order, the court specified:
“Just so the record is clear, the Court finds that the State has shown by clear and
convincing evidence that the proof is evident and the presumption is great that he
committed an eligible offense and that the Court finds that the Defendant poses a real and
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present threat to the safety of the community based on what was presented in the proffer;
specifically, a loaded firearm in a public area, having previously been convicted of a
firearm violation in 2015.”
Thereafter, defense counsel objected to the court’s findings and reiterated that he believed the
findings were not consistent with the ruling in Odom I. Odom filed a timely notice of appeal on
December 18, 2023.
¶7 II. ANALYSIS
¶8 On appeal, Odom argues that the circuit court failed to comply with the mandate in Odom I
and improperly imposed EM as a pretrial release condition, despite the court’s findings that Odom
does not pose a danger to any identifiable person or persons and is not a flight risk. Additionally,
Odom argues: (1) the State failed to prove by clear and convincing evidence that Odom violated
the safety standard based on the specific articulable facts of the case and EM is a necessary
condition of pretrial release; (2) the circuit court failed to consider all relevant factors set forth in
section 5/110-5(a) of the Code when determining the conditions of pretrial release; (4) EM is not
a necessary condition of release to ensure Odom’s appearance in court; and (5) EM is not the least
restrictive condition of release. For relief, Odom requests we vacate the circuit court’s order
imposing EM and release him instanter with only standard conditions.
¶9 In its responsive memorandum, the State agrees with Odom that “the circuit court failed to
comply with the appellate court’s general remand instructions and erred by reimposing electronic
monitoring as a condition of defendant’s pretrial release.” The State concedes that “the plain
language of the statue [sic] governing electronic monitoring as a condition of pretrial release makes
clear that it cannot be imposed absent one of two statutory conditions.” Therefore, the State
requests that we reverse the circuit court’s order imposing EM and remand for compliance with
Odom I.
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¶ 10 In considering this appeal, we have reviewed the following documents which Odom and
the State have submitted under Illinois Supreme Court Rule 604(h) (eff. Sept. 18, 2023): (1)
Odom’s notice of appeal pursuant to the Act, (2) the supporting record, (3) Odom’s supporting
memorandum, and (4) the State’s response to Odom’s memorandum.
¶ 11 Both parties agree we should apply the de novo standard when reviewing whether the
circuit court complied with the mandate in Odom I. We agree that de novo review is appropriate.
“Where directions from a reviewing court are specific, the court to which the cause is remanded
has a positive duty to enter an order or decree in accordance with the directions contained in the
mandate.” People v. Payne, 2018 IL App. (3d) 160105, ¶ 9 (citing People ex rel. Daley v. Schreier,
92 Ill. 2d 271, 276 (1982)). “Whether the trial judge complied with this court's mandate is a
question of law subject to de novo review.” Id. at ¶ 9 (citing Emerald Casino, Inc. v. Illinois
Gaming Board, 366 Ill. App. 3d 113, 118 (2006)).
¶ 12 We agree with Odom and the State that the circuit court failed to properly comply with our
preceding order. In Odom I, we noted that:
“ Regarding EM, the Code specifically states:
‘Electronic monitoring, GPS monitoring, or home confinement can only be
imposed as a condition of pretrial release if a no less restrictive condition of release or
combination of less restrictive condition of release would reasonably ensure the appearance
of the defendant for later hearings or protect an identifiable person or persons from
imminent threat of serious physical harm.’ 725 ILCS 5/110-5(g) (West 2022).
Further, if EM is imposed, the court ‘shall set forth in the record the basis for its
finding.’ 725 ILCS 5/110-5(h) (West 2022).
***
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Section 5/110-5(g) of the Code specifically enumerates that EM can only be
imposed if necessary to (1) ensure the defendant’s appearance for later hearings or (2)
protect an identifiable person [or persons] from imminent threat of serious physical harm.
725 ILCS 5/110-5(g) (West 2022). As the statute is drafted, it appears to this court that the
circuit court is restricted from imposing EM as a condition of pretrial release unless one of
the two above conditions is met.” (Emphasis in original).
¶ 13 As the court did not make findings that either of the two conditions had been met in this
case, we found that “the circuit court did not comport with the plain language of the statute as
drafted when it imposed EM as a condition of release.” Accordingly, the case was remanded for
the court to hold a new detention hearing and “and conduct further proceedings consistent with
this order.”
¶ 14 Following a new detention hearing on remand, the circuit court again determined that
detention was not appropriate given the facts of the case and imposed EM as a pretrial release
condition. It is clear from the court’s oral findings and written ruling that it believed Odom posed
a threat to the safety of the community. However, the court specifically asserted that Odom does
not pose an imminent threat of serious physical harm to any identifiable person or persons.
Likewise, the court found that there was no evidence to support that Odom was a flight risk or that
Odom would not appear for further court proceedings. Accordingly, the circuit court again failed
to comply with the plain language of section 5/110-5(g), as drafted, in imposing EM on Odom.
725 ILCS 5/110-5(g) (West 2022).
¶ 15 III. CONCLUSION
¶ 16 Following a thorough review of the record on appeal, for the reasons stated, we find that
the circuit court failed to comply with our mandate in Odom I. The circuit court improperly ordered
EM despite its repeated findings that Odom did not pose an imminent danger to an identifiable
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person or persons and was not a flight risk. Since section 5/110-5(g) of the Code, as written,
mandates that EM cannot be imposed absent one of those two statutory conditions, we reverse the
circuit court’s order imposing EM. As the circuit court has repeatedly determined that pretrial
detention is inappropriate in this case, we remand for the court to impose conditions of release
consistent with subsection (b) of Section 110-10 of the Code, excluding EM. 725 ILCS
5/110-10(b) (West 2022). The mandate in this case shall issue immediately. See People v. Gil,
2019 IL App (1st) 192419, ¶ 21.
¶ 17 Reversed and remanded with directions.
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