People v. Perez , 2024 IL App (2d) 230504 ( 2024 )

2024 IL App (2d) 230504No. 2-23-0504
Opinion filed February 15, 2024
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of McHenry County.
)
Plaintiff-Appellee, )
)
v. ) No. 23-CF-988
)
KEVIN K. PEREZ, ) Honorable
) Tiffany E. Davis,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.
Justices Schostok and Mullen concurred in the judgment and opinion.
OPINION
¶1 Defendant, Kevin K. Perez, appeals the November 6, 2023, order of the McHenry County
circuit court revoking his pretrial release pursuant to article 110 of the Code of Criminal Procedure
of 1963 (Code) (725 ILCS 5/art. 110 (West 2022)), commonly known as the Pretrial Fairness Act
(Act). See Pub. Act 101-652, § 10-255, 102-1104, § 70 (eff. Jan. 1, 2023); Rowe v. Raoul, 2023
IL 129248, ¶ 52 (lifting stay and setting effective date of Act as September 18, 2023). 1 Defendant
1 The Act has also been referred to as the Safety, Accountability, Fairness, and Equity-
Today (SAFE-T) Act. However, neither “Pretrial Fairness Act” nor “SAFE-T Act” is an official
title, as neither appears in the Illinois Compiled Statutes or the public acts.
2024 IL App (2d) 230504specifically argues that (1) he was not charged with an offense qualifying for revocation of his
pretrial release; (2) the State failed to prove by clear and convincing evidence that the proof is
evident or the presumption great that defendant committed the offense(s) charged; (3) the State
failed to prove 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; and (4) the State failed to prove by clear and convincing evidence that no condition or
combination of conditions would 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 the defendant’s
willful flight. For the following reasons, we affirm.
¶2 I. BACKGROUND
¶3 On October 20, 2023, defendant was charged by complaint with one count of attempted
aggravated assault (720 ILCS 5/12-3.05(d)(4) (West 2022)), a Class 3 felony, one count of
aggravated assault on a peace officer (id. § 12-2(b)(4.1)), a Class 4 felony, and one count of
resisting a peace officer (id. § 31-1(a)(1)), a Class A misdemeanor. According to the probable
cause statement, Officers Schraw, Meza, and Gallman of the Woodstock Police Department
responded to 1199 S. Eastwood Drive in Woodstock for a wellness check. Upon arrival at the
scene, officers saw defendant lying on the sidewalk. Officer Gallman woke defendant, who
responded aggressively. Officer Schraw asked defendant to step back. When defendant refused,
Officer Schraw placed his hand on defendant’s chest. Defendant struck Officer Schraw’s hand.
Officers warned defendant not to threaten or strike an officer again, but defendant again
aggressively advanced on Officer Schraw, who attempted to deescalate the situation by placing his
hands out to prevent defendant from moving forward any further. Defendant slapped Officer
Schraw in the hand a second time. Officers then attempted to place defendant under arrest, but
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2024 IL App (2d) 230504defendant resisted by pulling his arms away. Then, defendant was placed in the back of the squad
car and he used his head to strike and push Officer Gallman’s forehead.
¶4 The following day, defendant was released from custody on personal recognizance with
conditions. Of note, defendant was required to not violate any criminal statute while on pretrial
release. The matter was continued to November 1, 2023.
¶5 On November 2, 2023, defendant was charged in case No. 23-CM-752 with battery, a Class
A misdemeanor (720 ILCS 5/12-3(a)(1) (West 2022)). The State filed a verified petition to revoke
pretrial release. See 725 ILCS 5/110-6(a) (West 2022). The petition alleged that, while on pretrial
release, defendant was charged with battery, a Class A misdemeanor, related to an event where
defendant punched a minor, S.M.C., in the mouth three times causing him to bleed and loosening
his tooth.
¶6 A hearing on the State’s petition was held on November 6, 2023. The State argued that,
while on pretrial release for case No. 23-CF-988, defendant committed the offense of battery. In
support of its argument, the State proffered that on November 2, 2023, Officer Burbach of the
Crystal Lake Police Department responded to the Motel 8 in Crystal Lake for a subject who had
been hit and was unconscious. Upon arrival, Officer Burbach made contact with defendant, who
was in a room at the motel with S.M.C., a male minor. S.M.C. was on the ground but conscious
when officers arrived, and he appeared to have a head injury and a bloody lip. Defendant told
officers that S.M.C. fell and hit his head on a dresser and his face on the floor. S.M.C. told officers
that defendant was aggressive and, when he attempted to subdue defendant, defendant struck
S.M.C. in the mouth three times and S.M.C. lost consciousness. A third-party witness, Trissha
Heidrich, told officers that she observed defendant throw S.M.C. on the bed and punch S.M.C. in
the face. She also heard defendant yell, “You want this,” at S.M.C.
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2024 IL App (2d) 230504¶7 The State further argued that no conditions of pretrial release would mitigate the risk of
harm to the community and prevent defendant from committing subsequent offenses.
¶8 Defense counsel argued that defendant should not be detained, as he had a job lined up in
South Beloit, Wisconsin. That job would be providing him housing and transportation.
Additionally, defendant is a former Marine and spent time in combat in Afghanistan. He is
currently in therapy and is taking several prescribed medications that he would not have access to
in custody. Finally, defense counsel argued that global positioning system monitoring and no
contact orders with the alleged victims would mitigate any threat of harm defendant may pose.
¶9 The circuit court granted the State’s petition to revoke, finding that the State had proved
by clear and convincing evidence that defendant had committed a Class A misdemeanor while on
pretrial release, referring to case No. 23-CM-752, and that no condition or combination of
conditions would reasonably ensure defendant’s appearance in court or prevent him from being
charged with a subsequent felony or Class A misdemeanor. In its written order, the circuit court
noted that it had considered all applicable statutory factors in granting the State’s petition,
including defendant’s prior military service, defendant’s history and attitude, and defendant’s
involvement in violent, assaultive, and abusive contact.
¶ 10 On November 9, 2023, defendant filed a timely notice of appeal.
¶ 11 II. ANALYSIS
¶ 12 Defendant filed a notice in lieu of a memorandum, choosing to stand on the arguments
made in his notice of appeal. Defendant utilized the approved form from the Article VI Forms
Appendix to the Illinois Supreme Court Rules (see Ill. S. Ct. Rs. Art. VI Forms Appendix R.
604(d)). However, defendant merely checked four of the listed grounds for relief and offered no
support, description, or argument in the preprinted lines provided. Defendant specifically checked
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2024 IL App (2d) 230504the following grounds for relief: (1) he was not charged with an offense qualifying for revocation
of his pretrial release; (2) the State failed to prove by clear and convincing evidence that the proof
is evident or the presumption great that defendant committed the offense(s) charged; (3) the State
failed to prove 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; and (4) the State failed to prove by clear and convincing evidence that no condition or
combination of conditions would 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 the defendant’s
willful flight.
¶ 13 A circuit court’s decision to detain a defendant is reviewed using a two-part standard of
review—this is true regardless of whether that decision stems from a petition to detain or a petition
to revoke. People v. Trottier, 2023 IL App (2d) 230317, ¶ 13. The manifest-weight-of-the-
evidence standard applies to the circuit court’s factual determinations. Id. A finding is contrary to
the manifest weight of the evidence only if an opposite conclusion to the circuit court’s 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 if no reasonable person could agree with the trial
court. People v. Williams, 2022 IL App (2d) 200455, ¶ 52.
¶ 14 Initially, we note that defendant’s pretrial release was revoked under section 110-6(a) of
the Code (725 ILCS 5/110-6(a) (West 2022)). Under that section, a defendant’s pretrial release
may be revoked only if the defendant is charged with a felony or Class A misdemeanor while the
defendant has been released pretrial. Id. An in-person hearing for revocation must be conducted,
where the defendant is represented by counsel and the court considers all relevant circumstances,
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2024 IL App (2d) 230504including but not limited to, the nature and seriousness of the violation or the criminal act alleged.
Id. At this hearing, the State “bear[s] the burden of proving, by clear and convincing evidence, that
no condition or combination of conditions would reasonably ensure the appearance of the
defendant for later hearings or prevent the defendant from being charged with a subsequent felony
or Class A misdemeanor.” Id.¶ 15 Given the above, it is clear that defendant’s second, third, and fourth grounds for relief are
irrelevant to his appeal of the circuit court’s revocation of his pretrial release. The following
preprinted grounds for relief, which defendant checked, do not apply to revocations of pretrial
release under section 110-6(a) (id.): the State failed to prove by clear and convincing evidence that
the proof is evident or the presumption great that defendant committed the offense(s) charged; the
State failed to prove 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; and the State failed to prove by clear and convincing evidence that no condition
or combination of conditions would 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 the defendant’s
willful flight. Each of these grounds refer to the State’s burden in a denial hearing under section
110-6.1 (id. § 110-6.1), not the State’s burden at a revocation hearing under section 110-6(a) (id.
§ 110-6(a)).
¶ 16 Under section 110-6(a), the State must prove by clear and convincing evidence that no
condition or combination of conditions of release would reasonably ensure the appearance of the
defendant for later hearings or prevent the defendant from being charged with a subsequent felony
or Class A misdemeanor. Id. There is no provision in section 110-6(a) that requires the State to
prove that the proof is evident or the presumption great that defendant committed the offenses
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2024 IL App (2d) 230504charged, that defendant poses a real and present threat based on specific, articulable fact of the
case, or that no condition or combination of conditions would mitigate defendant’s threat or his
willful flight, based on the specific, articulable facts of the case. See id.¶ 17 Even if we were to entertain the idea that defendant intended to check the ground for relief
actually relevant to his appeal, that the circuit court erred in its determination that no condition or
combination of conditions would reasonably ensure the appearance of defendant for later hearings
or prevent the defendant from being charged with a subsequent felony or Class A misdemeanor,
the circuit court’s finding regarding that ground for relief was not against the manifest weight of
the evidence. The circuit court aptly noted that defendant’s original offense was a violent crime,
as is the subsequent offense he allegedly committed. In its written order, the circuit court also
noted defendant’s history, which included four prior convictions of domestic battery, two prior
convictions of resisting or obstructing a peace officer, one prior conviction of battery, and a
plethora of other nonviolent offenses. The circuit court observed that “defendant has an anger issue
and he’s taking it out on basically anybody he can get ahold of. Starting fights *** [which] is an
indication of the defendant’s character and attitude and his likeliness of complying with an order
by the Court not to violate any criminal laws in any jurisdiction.”
¶ 18 Given the fact that defendant, only 12 days after being released pretrial on the condition
that he not commit any additional offenses, was charged with an additional violent offense wherein
he allegedly punched a minor, it was not against the manifest weight of the evidence for the circuit
court to conclude that no condition or combination of conditions would prevent defendant from
being charged with additional offenses. Accordingly, the circuit court’s decision to revoke
defendant’s pretrial release and detain him was not an abuse of discretion.
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2024 IL App (2d) 230504¶ 19 Defendant also contends that he was not charged with an offense qualifying for revocation
of pretrial release. This too is without merit. Section 110-6(a) clearly and unambiguously states
that “pretrial release may be revoked only if the defendant is charged with a felony or Class A
misdemeanor that is alleged to have occurred during the defendant’s pretrial release after a hearing
on the court’s own motion or upon the filing of a verified petition by the State.” Id. On November
2, 2023, defendant was charged with battery causing bodily harm to an individual, a Class A
misdemeanor. 720 ILCS 5/12-3(a)(1) (West 2022). Although no documentation related to this
offense was provided in the record, the transcript from the revocation hearing details the facts
underlying the offense (see supra ¶ 6). Additionally, limited information regarding the offense is
available on the McHenry County Circuit Clerk’s website. We may take judicial notice of the
charges listed therein. Ill. R. Evid. 201 (eff. Jan. 1, 2011). Because section 110-6(a) allows for
revocation of defendant’s pretrial release only if defendant is charged with a felony or Class A
misdemeanor, and defendant was charged with a Class A misdemeanor, namely battery, while on
pretrial release, he was clearly charged with a qualifying offense.
¶ 20 III. CONCLUSION
¶ 21 For the aforementioned reasons, we affirm the judgment of the circuit court of McHenry
County.
¶ 22 Affirmed.
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2024 IL App (2d) 230504People v. Perez, 2024 IL App (2d) 230504Decision Under Review: Appeal from the Circuit Court of McHenry County, No. 23-CF-
988; the Hon. Tiffany E. Davis, Judge, presiding.
Attorneys James E. Chadd, Carolyn R. Klarquist, and Benjamin J. Wimmer,
for of State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Patrick Delfino and David J. Robinson, of State’s Attorneys
for Appellate Prosecutor’s Office, of Springfield, for the People.
Appellee:
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