People v. Washington , 2024 IL App (1st) 240894-U ( 2024 )

2024 IL App (1st) 240894-UNo. 1-24-0894B
Second Division
July 17, 2024
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
____________________________________________________________________________
) Appeal from the
THE PEOPLE OF THE STATE OF ) Circuit Court of
ILLINOIS, ) Cook County.
)
Plaintiff-Appellee, )
) No. 24 CR 02415-01
v. )
)
AARON WASHINGTON, ) Honorable
) William G. Gamboney,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court.
Presiding Justice Howse and Justice McBride concurred in the judgment.
ORDER
¶1 Held: We affirm the circuit court’s denial of defendant-appellant’s motion for pretrial
release following a continued detention hearing where defendant posed a real and
present threat to the community.
¶2 On February 11, 2024, defendant-appellant, Aaron Washington, was arrested and
subsequently charged by indictment for violation of various sections of the Criminal Code of 2012,
including (1) armed habitual criminal, a Class X felony (720 ILCS 5/24-1.7(a) (West 2022));
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(2) armed violence, a Class X felony (id. § 33A-2(a)); (3) unlawful use or possession of a weapon
by a felon, a Class 2 felony (id. § 24-1.1(a)); and (4) two counts of aggravated unlawful use of a
weapon, a Class 2 felony (id. § 24-1.6(a)(1), (a)(3)(A-5); (a)(1), (a)(3)(C)). Defendant was also
charged with possession of between 15 and 100 grams of heroin, a Class 1 felony, pursuant to
section 402(a)(1)(A) of the Illinois Controlled Substances Act (720 ILCS 570/402(a)(1)(A) (West
2022)).
¶3 On February 12, 2024, the State filed a verified petition for a pretrial detention hearing,
pursuant to sections 110-2 and 110-6.1 of the Code of Criminal Procedure of 1963 (Procedure
Code) (725 ILCS 5/110-2, 110-6.1 (West 2022)), as amended by Public Act 101-652, commonly
referred to as “the Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act” or the
“Pretrial Fairness Act” (Act). See Pub. Act 101-652, § 10-255 (eff. Jan. 1, 2023); Pub. Act 102-
1104, § 70 (eff. Jan. 1, 2023); Ill. S. Ct. R. 604(h)(1) (eff. Oct. 19, 2023); Rowe v. Raoul, 2023 IL
129248, ¶ 52 (lifting stay and setting effective date as September 18, 2023). That same day, the
circuit court granted the State’s request and entered an order for detainment. At some point
thereafter, defendant filed a motion for release, and a “detention” hearing was held on March 28,
2024.
¶4 Now, in this interlocutory appeal, defendant argues that the circuit court erred in ordering
continuing pretrial detention, in that the court improperly conducted the hearing, and that
defendant did not constitute a real and present threat. For the reasons that follow, we affirm the
decision of the circuit court.
¶5 I. BACKGROUND
¶6 A. Pretrial Detention Petition
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¶7 On February 12, 2024, the State filed its verified petition for pretrial detention. Therein,
the State argued that (1) the charged offense of armed habitual criminal was a non-probationable
felony eligible for pretrial detainment pursuant to section 110-6.1(a)(1) of the Procedure Code
(725 ILCS 5/110-6.1(a)(1) (West 2022)), (2) defendant posed a “real and present threat to the
safety of any person or persons or the community,” and (3) there was “[n]o condition or
combination of conditions set forth in 725 ILCS 5/110-10(b) [725 ILCS 5/110-10(b) (West 2022)]
*** to mitigate that risk.” With regard to the second element, the State asserted that:
“Arresting [o]fficers were alerted that defendant was waving a gun on public
transportation, was subsequently found to have a gun in his possession, and carried a total
of 28 bags of suspect heroin on his person. Furthermore, defendant has been convicted of
six felonies, including a reduced armed robbery charge in 2001, aggravated battery in 2002,
and attempt murder in 2007.”1
¶8 The petition included a supplemental “Public Safety Assessment” (PSA), conducted by
“pretrial services.” The assessment rated defendant’s “new criminal activity score” as a “4” out of
“6,” and a “failure to appear” score as a “3” out of “6.” It rated his “new violent criminal activity
flag” as a “no,” but noted that he had both prior misdemeanor and felony convictions, including
one violent felony, as well as a prior sentence. It also noted that defendant had failed to appear in
court on a matter older than two years old. Its overall assessment was that defendant’s “pretrial
supervision level” was a “2.”
¶9 B. Initial Pretrial Detention Hearing
1
During the subsequent “detention” hearing, the State asserted that defendant had seven prior
felonies.
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¶ 10 On February 12, 2024, defendant appeared before the circuit court for his first appearance. 2
Although the record does not contain any report of those proceedings, the court’s ruling was
memorialized in a written order that same day. First, the court found that “[t]he proof [was] evident
or the presumption great that the defendant ha[d] committed an eligible offense listed” within
section 110-6.1(a) of the Procedure Code. The court’s ruling expressly stated that there was a “call
of someone waving a gun at [a] CTA station. Police arrived and matching [description] of call was
running away. CPD stop[ped] and frisk[ed,] recovering a .380 cal handgun—prior felony
offenses.”
¶ 11 Second, the court found that “defendant pose[d] 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.”
Specifically, the court found that defendant “possessed a gun” and had a “history of violence
including an armed robbery reduced,” “attempt murder in 2002,” “aggravated [battery] in 2002,”
and a “history of violence and using weapons.” The court further noted that defendant had
possessed a gun on the CTA and also reported having mental health issues.
¶ 12 Third, the court found that “[n]o condition or combination of conditions set forth” in
section 110-10(b) of the Procedure Code could “mitigate the real and present threat to the safety
of any person or persons or community based on the specific articulable facts of the case,” and that
“[l]ess restrictive conditions would not avoid a real and present threat to the safety of any person
or persons or the community, based on the specific and articulable facts of the case.” As to this
point, the court found that defendant had “a history of events over [the] last 20 years,” had fled
from CTA and law enforcement, had possessed a weapon on the CTA, and suffered from “mental
2
The State’s brief indicates that on February 12, the Honorable Charles Beach presided over the
initial pretrial detention hearing.
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health issues.” The court determined that electronic monitoring was not appropriate as it was “not
designed to handle charges of violent offense” with “48 hours mvt.” No appeal was taken from
this order.
¶ 13 Finally, also on that same day, the court entered a “Healthcare Order,” which indicated that
defendant had reported that he was suffering issues related to “mental health.” As such, the order
required that defendant be promptly evaluated by appropriate healthcare personnel.
¶ 14 C. Other Proceedings
¶ 15 On March 7, 2024, an order entered by the circuit court indicated that defendant’s charges
had been superseded by direct indictment. 3 At some point prior to March 28, 2024, defendant filed
a motion for pretrial release. However, this motion does not appear in the appellate record.
¶ 16 D. March 28 Hearing
¶ 17 On March 28, 2024, a hearing was held on what presumably was defendant’s motion for
release. However, this is not expressly indicated in the report of proceedings by any of the parties,
including the court. Specifically, the following exchange occurred:
“THE COURT: This is up for discovery check today.
[DEFENSE COUNSEL]: It is up for detention. [Defendant] was just arraigned on
Wednesday last week.
THE COURT: Okay. Oh, all right. State, are you ready to proceed?
3
It is unclear when the new indictment was entered. Appellant’s brief states that it was March 6,
2024, the State’s brief asserts it to be March 7, and the supplemental record appears to show it as March
13. The record is further confusing in that a grand jury indictment indicates that there are six counts pending
against defendant. In contrast, a criminal disposition sheet entered by the court on March 7 reflects that
there were only four counts pending. However, the parties’ briefs appear to be in agreement as to the
remaining charges, which include one count of armed habitual criminal, one count of armed violence, one
count of possession of 15 to 100 grams containing fentanyl, one count of unlawful use or possession of a
weapon by a felon, and two counts of aggravated unlawful use of a weapon.
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[THE STATE]: Yes, your Honor.
***
[THE STATE]: Thank you, your Honor. The defendant is before you charged with
a Class X armed habitual actual criminal, which is non-probationable felony. Based upon
the charge, as well as, your Honor, I’ll go into his background in a moment. Your Honor,
the facts of this matter are on February 12th of 2024 at approximately 10:40 in the evening,
police dispatched to a call of a person [waving] a gun at the CTA Red Line station.
***
[THE STATE]: Police proceeded to the CTA Red Line and they observed the
defendant running out the station matching the description that was given to the 911
dispatch.
Police approached the defendant and asked the defendant if he had any weapons on
him to which he related no. The police conducted a protective pat-down and revealed a
hard L-shaped object that was weighted in the defendant’s pocket, they believed to be a
firearm.
They then recovered a loaded—they did recover a loaded handgun, your Honor
from the defendant’s pocket[.]”
¶ 18 1. The State’s Continued Proffer
¶ 19 The State further indicated that during a custodial search, police officers recovered four
small plastic bags of suspect heroin from defendant’s person and learned that defendant did not
have a valid Firearm Owner’s Identification Card or a valid concealed carry license. A further
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custodial search revealed additional suspect heroin for a total of 28 bags of suspect heroin on the
defendant’s persons.
¶ 20 Regarding defendant’s background, the State proffered that defendant had seven prior
felony convictions. His most recent conviction was in 202l, for possession of a controlled
substance, for which he served one years’ time at the Illinois Department of Corrections (IDOC),
with discharge in August 2022. In 2007, defendant was convicted of aggravated battery, which
had been reduced from an initial charge of attempted murder,4 for which he served eight years at
IDOC. In 2002, defendant was convicted of aggravated battery of a police officer “where he
received it years in Illinois Department (sic).” In 2001, defendant was convicted of attempted
aggravated robbery, for which he served four years at IDOC. In 2000, defendant was convicted of
retail theft, for which he served two years at IDOC. Last, in 1992, defendant was convicted of two
separate felonies for residential burglary, for which he received a four-year sentence at IDOC for
both convictions.
¶ 21 In its conclusion, the State said that it believed the defendant to “pose a real and present
threat to the safety of any person or persons in the community based on the articulable facts.” It
then requested that the court “deny [its] motion to release the defendant based upon the pretrial
detention hearing.”5
¶ 22 2. Defendant’s Argument in Mitigation and for Pretrial Release
¶ 23 In mitigation, defense counsel asserted that defendant was a lifelong Chicago resident who
had attended Hyde Park High School and had received his GED. Defendant also earned an
4
The State refers to the attempted murder charge as a conviction throughout parts of the record and
in its brief, but the record does not confirm whether the charge had been reduced to aggravated battery prior
to conviction.
5
The police report filed in support of the petition lists February 11, 2024, as the date of arrest.
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associate’s degree in construction from Lakeland College. Defendant owned his own apartment
and had a daughter attending college at Michigan State University.
¶ 24 Defense counsel further indicated that defendant had various health issues—specifically,
that he was going blind in his left eye and was currently receiving treatment at University of Illinois
Chicago. To prevent total blindness, defendant required surgery with extensive post-surgical care.
Defense counsel further admitted that defendant suffered from substance abuse issues and had
been planning to attend a 28-day rehabilitation program, if he were to be released.
¶ 25 E. Circuit Court Oral Ruling
¶ 26 At the conclusion of the hearing, the following colloquy occurred:
“THE COURT: Well, the court would note that the defendant has a long criminal
history with several times having been in [IDOC], including violent crimes. The nature of
this case where it’s a man [waving] [sic] a gun, it’s not just possessing a gun, he’s [waving]
[sic] it and then when the police arrive, he’s running, those are concerns. In addition—and
during the course of the search and arrest, he’s found to have 28 baggies containing—
which apparently contained heroin, charged with that in Count 3, you know, these *** dope
and guns seem to go together in a bad way. I’m concerned about the safety of the public.
He’s a convicted felon. He’s running around with dope and guns. I don’t think electronic
monitoring would be appropriate given this—the nature of his background and the charges
before the [c]ourt that would be an appropriate consideration given that he gets two days
off for personal care, there will be no monitoring—I don’t know that the Sheriff’s office is
equipped to monitor what could be a violent felon. He’s charged with a Class X felony,
which is non-probationable.
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THE COURT: It sounds like the State has a pretty good case. The proof is evident
and the presumption great, the defendant will be detained.”
¶ 27 Following the court’s ruling, the court asked if the State had a “petition or order” for the
court to sign. Subsequently, the following exchange occurred:
“[THE STATE]: I do have an order, your Honor, just one moment.
THE COURT: I mean, was he already in first appearance court? Was he held?
[THE STATE]: Yes, your honor.
[DEFENSE COUNSEL]: Yes.
[THE STATE]: He was held on, it looks like, February 12, 2024. There was a
petition that we filed—
THE COURT: Okay.
[THE STATE]: —and it was granted at that time.
THE COURT: Okay. So, Mr. Washington, you [have] a right to appeal this
decision. You have to do it within 14 days. So this was just recently arraigned. We need a
date to check on the status of discovery?
[DEFENSE COUNSEL]: Yes, please, Judge. I would ask if we could go into May.”
¶ 28 F. Circuit Court Written Ruling
¶ 29 The court’s oral ruling was memorialized in a written order, titled “Order after Pretrial
Detention Hearing,” which was entered that same day. First, the court found that the State had
shown, by clear and convincing evidence, that the proof was evident or the presumption great that
defendant had committed an eligible offense for pretrial detention, but the order did not list the
specific offense. With regard to the second element, concerning real and present threat, the court
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noted that defendant had been waving a gun in public, that controlled substances had been
recovered, and that defendant had been “seen running.” The court further found that defendant had
an extensive criminal background, which included violent felonies. With regard to the third
element concerning conditions, the court reiterated that electronic monitoring was improper, given
the defendant’s “actions during this incident and criminal background.”
¶ 30 This appeal followed.6
¶ 31 II. ANALYSIS
¶ 32 A. The Procedure Code
¶ 33 The Procedure Code presumes that all persons charged with an offense shall be eligible for
pretrial release prior to conviction. 725 ILCS 5/110-2(a), 110-6.1(e) (West 2022). Therefore,
pretrial release may be denied only if a person is charged with a qualifying offense as delineated
within section 110-6.1 of the Procedure Code and following the conducting of a corresponding
hearing. Id. §§ 110-2, 110-6.1(e), (f). Moreover, pretrial detention should only be ordered to
effectuate the Act’s goals, which include reasonable assurance of an eligible person’s appearance
in court, ensuring the safety of any other person or the community, the prevention of any attempt
or obstruction of the criminal justice process, and ensuring compliance with all conditions of
release. Id. § 110-2(e).
6
The record reflects that on April 1, 2024, defendant timely filed a notice of appeal from the court’s
March 28, 2024, interlocutory order denying pretrial release. See 725 ILCS 5/110-5(k) (West 2022); see
also Ill. S. Ct. R. 604(h)(1)(iii), (h)(2) (eff. Dec. 7, 2023). During briefing, our supreme court amended Rule
604(h), which now provides that dispositions concerning pretrial release decisions shall be issued within
100 days of the filing of the notice of appeal. Ill. S. Ct. R. 604(h)(8) (eff. Apr. 15, 2024). Additionally, we
note that, during the course of briefing, defendant requested an extension of time to file missing portions of
the record, as well as additional time to file his brief, which we granted on June 4, 2024. As such, our
disposition date was extended to July 17, 2024, for “good cause shown” as permitted by Illinois Supreme
Court Rule 604(h)(8) (eff. Apr. 15, 2024).
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¶ 34 Accordingly, the State, which bears the burden of proof, must show by clear and
convincing evidence that (1) the “proof is evident or the presumption great” that the defendant has
committed an eligible detainable offense (id. § 110-6.1(e)(1)); (2) a 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” (id. § 110-6.1(e)(2)); and (3) there is “no condition or combination of
conditions set forth” within the Procedure Code that could mitigate that real and present threat to
the safety of any person, persons, or the community, based on the facts of the case (id. § 110-
6.1(e)(3)). If the court determines that the State has met its burden on its petition, the court must
make a written finding summarizing its reasons for pretrial detention. Id. § 110-6.1(h).
¶ 35 The appeal before us involves a different subsection of the Procedure Code following an
order of initial detainment, which shares some commonalities but is not identical. See People v.
Thomas, 2024 IL App (1st) 240479, ¶ 14. Specifically, section 110-6.1(i-5) provides that,
“[a]t each subsequent appearance of the defendant before the court, the judge must find
that continued detention is necessary to avoid 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, or
to prevent the defendant’s willful flight from prosecution.” 725 ILCS 5/110-6.1(i-5) (West
2022).
See also People v. Harris, 2024 IL App (2d) 240070, ¶ 37 (applying this subsection to motions
made by a party or on the court’s own motion). Both the State and defendant may appeal an order
resulting from those proceedings. 725 ILCS 5/110-6.1(j), (k) (West 2022).
¶ 36 With this framework in mind, we now turn to the merits of defendant’s appeal.
¶ 37 B. Standard of Review
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¶ 38 Defendant asserts that section 110-6.1(i-5) of the Procedure Code does not prescribe a
standard of proof or burden upon any party, whereas sections 110-2(b) and 110-2(c) place the
burden on the State to demonstrate that a person constitutes a real and present theat. Nevertheless,
defendant posits that the State’s burden should be clear and convincing evidence, citing In re
Tiffany W., 2012 IL App (1st) 102492-B, while also observing that other courts have applied an
abuse of discretion standard to detention reviews, citing Thomas, 2024 IL App (1st) 240479, with
some even advocating for de novo review, citing the concurring opinion in People v. Saucedo,
2024 IL App (1st) 232020. Regardless of either standard, defendant asserts that the result is the
same, in that he is not a safety threat in need of continued detention. The State responds that abuse
of discretion is the proper standard for continued detention findings, citing Thomas and People v.
Mulbrandon Casey, 2024 IL App (3rd) 230568.
¶ 39 As noted prior, section 110-6.1(i-5) requires that, at any subsequent appearance of a
defendant following initial detention findings, the circuit court must conduct some review of the
appropriateness of defendant’s continued detention. Although it must similarly make findings
based on the specific and articulable facts of the case, continued detention determinations “are not
subject to every statutory requirement that applies” to the initial hearing. Harris, 2024 IL App (2d)
240070, ¶ 37; see Mulbrandon Casey, 2024 IL App (3d) 230568, ¶ 13 (“[T]he Code does not
require the court to again make specific findings that the State proved the three propositions by
clear and convincing evidence as required at the initial hearing.”). Rather, the court need only
consider whether continued detention is necessary to avoid a safety threat or to prevent willful
flight.
¶ 40 The appropriate standard of review for pretrial detention orders remains unresolved and
the subject of considerable debate among the appellate districts, and even among different
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divisions here in the First District. See People v. Parker, 2024 IL App (1st) 232164, ¶¶ 46-47
(discussing and collecting cases on court split). Continued pretrial detention orders have not
avoided this debate, as some districts and divisions of our appellate court have applied the abuse
of discretion standard for ultimate decisions concerning pretrial release (see Mulbrandon Casey,
2024 IL App (3d) 230568, ¶¶ 11-13; Thomas, 2024 IL App (1st) 240479, ¶ 16) and at least one of
our sister districts has applied the manifest weight standard (see People v. Alcantara, 2024 IL App
(5th) 240195-U, ¶ 33). Regardless, absent any further direction from our supreme court on this
significant issue, we need not determine which standard applies here because, as further discussed
below, our ultimate disposition would be the same under either standard.
¶ 41 C. Arguments
¶ 42 Procedurally, the State contends that defendant’s appeal is forfeited for a variety of
reasons. 7 It first points out that defendant’s basis for appeal as contained within his notice of appeal
explicitly challenged the State’s failure to meet its burden in demonstrating that there were no
conditions or combination of conditions to mitigate any threat posed by defendant. According to
the State, this language tracks the defendant’s original detention order of February 12, 2024, which
had not been previously appealed. Assuming that defendant actually challenges the original
7
The State also argues that defendant’s claim that the circuit court improperly conducted the
continued detention hearing was not raised in a motion filed before the circuit court and thus cannot be
considered today. However, this contention is meritless. It is true that Supreme Court Rule 604(h)(2) now
requires the filing of a motion to reconsider an order granting or denying pretrial release before the circuit
court prior to a notice of appeal. Ill. S. Ct. R. 604(h)(2) (eff. April 15, 2014). Thus, if defendant fails to
raise any issue in that motion for relief, such contentions are deemed waived on appeal. Id. However,
defendant’s notice of appeal was filed on April 1, 2024, and under the operative version of Rule 604(h)(2)
at the time, defendant was only required to file a notice that described both the relief and grounds for relief
requested, as well as a form order notice prescribed by Rule 606(d). See Ill. S. Ct. R. 604(h)(2) (eff. Dec.
7, 2023); 606(d) (same); People v. Martin, 2023 IL App (4th) 230826, ¶ 18. Thus, defendant was not
required to file a motion before the circuit court outlining the issues he intended to appeal.
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detention order, the State argues that our court does not have jurisdiction to review those findings,
as an appeal to that order would be untimely under the Procedure Code and Supreme Court Rule
604(h)(2). Additionally, the State contends that the issues outlined in defendant’s memorandum
are also forfeited pursuant to Rule 604(h)(2). Specifically, the State asserts that defendant’s two
bases for appeal, that the circuit court improperly conducted the continued detention hearing, and
that the court incorrectly determined that defendant was a real and present threat, cannot be
considered because these are not the same issues raised in defendant’s notice of appeal.
¶ 43 We turn to the notice of appeal. The form order indicates that defendant expressly sought
to challenge the findings and rulings made by the court on March 28, 2024, and not the February
12, 2024 initial detention order. However, upon further examination of the notice of appeal, we
agree with the State that defendant’s notice and the memorandum filed in support of the appeal are
inconsistent. Specifically, on the form order, defense counsel did not check the box indicating that
he sought to challenge any findings that defendant constituted a real and present danger. Instead,
counsel solely checked the following box:
“The State failed to meet its burden by 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.”
Defense counsel then wrote, in a single sentence, that defendant “could be placed on [EMS] or
pretrial curfew.” Thus, defendant did not challenge what would have been the sole issue before the
court on a continued detention hearing—namely, that “continued detention [was] necessary to
avoid a real and present threat to the safety of any person or persons or the community, based on
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the specific articulable facts of the case, or to prevent the defendant’s willful flight from
prosecution.” 725 ILCS 5/110-6.1(i-5).8
¶ 44 In contrast, defendant’s brief is dedicated to the lack of evidence proffered in support of
him continuing to be a real and present threat, none of which was actually discussed by defense
counsel during the hearing or raised in the notice of appeal. Moreover, defendant does not make
any comment on the discrepancies between the filed brief and what was expressly challenged in
the notice.
¶ 45 Initially, we must comment on defendant’s barebones notice filed in support of his appeal.
At the time of filing, our rules required defendant to describe his grounds for appeal in his notice
in detail. See Ill. S. Ct. R. 604(h)(2); 606(d); see Martin, 2023 IL App (4th) 230826, ¶ 19 (“It
would be especially inappropriate to overlook the insufficiency of defense counsel’s rote,
mechanical, and nonspecific statements that could be (and in our brief experience, have been)
applied generically to any Rule 604(h) appeal.”) It is well-established that “supreme court rules
have the force of law,” “are not suggestions,” and “are not aspirational.” (Internal quotations and
citations omitted.) Martin, 2023 IL App (4th) 230826, ¶ 18. Thus, although we are authorized to
liberally construe the requirements of supreme court rules governing appeals, we also are not
required to excuse noncompliance with filing requirements.
¶ 46 However, the inconsistencies between the notice of appeal and the filed memorandum are
more concerning. It was presumably defendant’s motion for release that triggered the March 28,
8
We acknowledge that the form order notice of appeal does not specifically contain a section for a
party to check off concerning continued detention proceedings. Rather, the form order is entitled “Denial
or Revocation of Pretrial Release” and lists the statutory elements by which a court assesses initial detention
hearings. However, there is an “other” box on the form that could have allowed for a more specific
challenge.
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2024 hearing, and although defendant had already been initially detained one month prior, defense
counsel’s notice of appeal does not challenge what could only be the sole issue before the court,
namely whether defendant continued to constitute a real and present threat. Instead, defense
counsel challenged the portion of the circuit court’s order concerning the propriety of EMS.
Although we acknowledge that factual determinations of whether to impose conditions utilize
similar factors as those used to assess whether a defendant is a real and present threat, the issue of
continued detention has a narrowed focus. Compare 725 ILCS 5/110-6.1(g)(9) (West 2022)
(stating that factors used to assess a defendant’s real and present threat may include considerations
contained within article 5 of the Procedure Code, which assesses appropriate bail conditions, if
any, based on similar factors); 725 ILCS 5/110-5(a) (West 2022); Id. § 110-6.1(i-5) (whether
“continued detention is necessary to avoid a real and present threat *** based on the specific
articulable facts of the case[.]”) Thus, we agree with the State that the issues outlined in defendant’s
filed memorandum regarding the court’s finding of him being a real and present threat are forfeited.
¶ 47 On that point, however, and notwithstanding forfeiture, we pause to comment on the
circumstances of the March 28, 2024 hearing. Defendant’s first argument for reversal, which also
was not raised in the notice of appeal and thus must also be considered forfeited, was that the
circuit court improperly assessed the merits of his continued detention by the wrong section and
standard of the Procedure Code. Specifically, defendant asserts that section 110-6.1(i-5) should be
assessed by “subsequent review” standards, which are distinctive from initial detention hearings,
citing Thomas, 2024 IL App (1st) 240479, in support. Defendant reasons that the court did not
follow protocol when it determined that the proof was evident or presumption great that defendant
committed a detainable offense, and as such engaged in a full-blown detention hearing without
having the statutory authority to do so, citing People v. Jones, 2024 IL App (1st) 240515-U. In
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response, the State acknowledges that the circuit court “superfluously” discussed the strength of
the State’s case against defendant in its ruling, but maintains that it did not conduct a “full-blown
hearing.”
¶ 48 Based on the report of proceedings and documentary record, it is clear to us that there was
confusion regarding the proper procedures for the continued detention hearing. First, it appears
that the March 28, 2024 hearing was triggered by defendant’s motion for release. However, as we
have noted prior, no such motion was included in the record, which we add was defendant’s burden
to bear. Therefore, we cannot discern the reasons articulated by defense counsel concerning
defendant’s continued detention beyond what was stated during the hearing.
¶ 49 Next, we can glean from the record that it was unclear to the circuit court at what stage of
proceedings defendant’s case was currently situated. However, this confusion can be attributed to
all involved. Beginning with the initial exchange between the parties, the circuit court appeared to
believe the matter was placed on its docket for status on discovery. Although the circuit court was
corrected by defense counsel that the matter was up for “detention,” defense counsel did not
indicate to the court that it was actually up for continued detention proceedings, let alone on his
own motion for release. Moreover, the court never acknowledged that it had read any such motion,
let alone received a copy of it to begin with. Finally, despite the matter being procedurally up on
defendant’s motion, the State proceeded first and proffered the reasons for why it believed
detention was necessary. Indeed, the State never once indicated that defendant was already
detained until the very end of its argument, when it included a request for relief that defendant’s
motion should be denied “based upon the pretrial detention hearing.”
¶ 50 Moving forward, it is also clear from the court’s oral ruling and subsequent post-ruling
comments that it believed it was conducting a full-fledged pretrial detention hearing. The court
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made findings regarding all three elements required for an initial detention hearing, including that
“the proof was evident and the presumption great” that defendant had committed the charged
crimes. Although the court certainly elaborated as to why it perceived defendant to be a safety
threat based on the nature of the charges and defendant’s criminal background, which is an element
discussed at both initial and continued detention reviews, the court also discussed the impropriety
of EMS as a potential condition for release, a finding relegated to initial petitions. Further, the
court asked if the State had a “petition or order” for it to sign and then asked for clarification as to
whether this had been defendant’s first appearance, if he had already been detained prior, and when
he had been arraigned.
¶ 51 Finally, we look to the written order entered by the court that same day. The record reflects
that the court entered findings on all three elements required for an initial detention hearing. See
725 ILCS 5/110-6.1(h) (West 2022). Given that this matter was purportedly before the court to
assess defendant’s continued detention, the court did not need to conduct such an analysis on a
subsequent detention order and solely needed to address whether continued detention was
necessary to avoid a safety threat or prevent willful flight from prosecution. See id. § 110-6.1(i-
5); People v. Hongo, 2024 IL App (1st) 232482, ¶ 27.
¶ 52 However, our observations are not fatal to the circuit court’s ultimate finding that defendant
should continue to be detained. Our court has recognized that the Procedure Code does not provide
for repeated, comprehensive detention hearings. See People v. Stokes, 2024 IL App (1st) 232022-
U, ¶ 36. The State also does not need to file a new petition each and every time it seeks continued
detention of a given defendant, which it did not do here. See 725 ILCS 5/110-6.1(d)(2) (West
2022) (the State may file a second or subsequent petition where new facts have now come to light
that were unknown or not obtainable at time of initial petition filing).
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¶ 53 Further, there are a growing number of cases indicating that, even when the circuit court
conducts a hearing and makes findings for continued detention using the three statutory factors
usually required for an initial detention hearing, such findings are not generally or necessarily fatal
to our review. See Thomas, 2024 IL App (1st) 240479, ¶ 14 (even though court assessed evidence
for continued detention by three elements required for initial detention, its findings “necessarily
encompassed the continued detention finding required by section 110-6.1(i-5)”); Mulbrandon
Casey, 2024 IL App (3d) 230568, ¶ 13 (propriety of continued detention to avoid a real and present
threat to the safety of any person, persons, or the community “necessarily entails consideration of
the threat or flight risk posed by a defendant and the potential mitigation of such threat or flight
risk by conditions of release,” but “the Code does not require the court to again make specific
findings” required at the initial detention hearing); Harris, 2024 IL App (2d) 240070, ¶ 37
(“[S]ubsequent detention determinations are not subject to every statutory requirement that applies
to initial detention hearings.”); Stokes, 2024 IL App (1st) 232022-U, ¶ 36 (even where a new judge
has been assigned to a case following initial detainment order, a hearing pursuant to section 110-
6.1(a) is not required to assess continued detention).
¶ 54 Of course, although there are fewer findings for the court to make in a continued detention
hearing, the court must still expressly adhere to the statute in finding that continued detention is
necessary. See People v. Shaw, 2024 IL App (1st) 232021-U, ¶¶ 25-26 (continued detention
hearings still require findings of a defendant’s real and present threat based on the specific and
articulable facts of the case and cannot be based on acceptance of a different judge’s prior ruling
for initial detention); Stokes, 2024 IL App (1st) 232022-U, ¶¶ 27-28, 31-32; but see Jones, 2024
IL App (1st) 240515, ¶¶ 5-6 (although acknowledging that subsequent detention hearings do not
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require the same type of proceedings as initial detention hearings, otherwise determining that case
should be remanded to conduct a continued detention inquiry).
¶ 55 Here, the court also appeared to make full-fledged findings regarding defendant’s
detention, but only did so after hearing the State’s proffer and taking into account defendant’s
arguments for mitigation. Notwithstanding the confusion apparent from the report of proceedings,
we do not believe the court’s overly comprehensive findings exceeded its powers under the
Procedure Code. Put simply, the court still found that defendant constituted a real and present
threat, and thus still made the requisite finding required under section 110-6.1(i-5). Moreover, as
discussed above, this type of hearing requires fewer findings than what would otherwise be
required on an initial detention petition, which implies that the court found that the State had
satisfied an even more stringent burden of proof than necessary.
¶ 56 Finally, when examining the court’s overall ruling, we cannot say that the ultimate decision
to detain was unjustified. In determining whether a given defendant continues to pose a real and
present threat to the safety of the community, the Procedure Code allows courts to consider, among
others, the nature and circumstances of the charged crimes; defendant’s history and characteristics,
including prior criminal and psychological background; defendant’s access to any weapons; and
any other factors speaking to defendant’s propensity or reputation for violent or assaultive
behavior. See 725 ILCS 5/110-6.1(g). Although we are unable to evaluate whether defendant’s
motion for release made any such argument as to those factors, the record reflects that such factors
were considered by the court in its oral and written rulings. Specifically, the court noted the dangers
of defendant’s firearm possession in a public place, in which he was alleged to have been waving
the gun, in addition to his possession of various drugs, especially after defense counsel admitted
during the hearing that defendant suffered from substance abuse issues and was seeking treatment.
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No. 1-24-0894B
See id. § 110-6.1(g)(1) (assessing the nature and circumstances of any offense charged, including
whether the offense involved a weapon); id. § 110-5(a)(1). The court also pointed to defendant’s
extensive criminal history in its discussion of whether any conditions were appropriate, which
included violent crimes and time served at IDOC. See id. § 110-6.1(g)(2)(A) (assessing prior
criminal history indicative of violent, abusive, or assaultive behavior, including prior criminal
proceedings). Moreover, we note that the offense of armed habitual criminal is one “specifically
aimed at the dangers associated with repeat felons possessing firearms.” Hongo, 2024 IL App (1st)
232482, ¶ 35; see also People v. Lee, 2024 IL App (1st) 232137, ¶ 28; Martin, 2018 IL App (1st)
152249, ¶ 23. Indeed, defendant’s status as a convicted felon means he is specifically prohibited
from possessing a firearm, regardless of whether, as noted by defendant, the gun is loaded or not.
See 720 ILCS 5/24-1.1 (West 2022); 430 ILCS 65/1 (West 2022); Hongo, 2024 IL App (1st)
232482, ¶ 35 (possession of a firearm by a convicted felon “goes directly against the legislature’s
stated purpose of promoting and protecting the safety of the public from the unlawful possession
of firearms by certain individuals.”) (quoting People v. Davis, 2023 IL App (1st) 231856, ¶ 28)).
¶ 57 As such, when reviewing the record as a whole, we do not find reversible error in the circuit
court’s ultimate determination that defendant’s continued detention was necessary. Accordingly,
we affirm the detention order.
¶ 58 III. CONCLUSION
¶ 59 For the reasons stated, we affirm the judgment of the circuit court.
¶ 60 Affirmed.
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