People v. Crosby , 2024 IL App (1st) 240733-U ( 2024 )

2024 IL App (1st) 240733-UFIRST DIVISION
May 28, 2024
No. 1-24-0733B
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
Plaintiff-Appellee ) Cook County.
)
v. ) No. 2024110184301
)
RONALD CROSBY, ) Honorable
) William Fahy,
Defendants-Appellant. ) Judge Presiding.
)
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court.
Justices Lavin and Coghlan concurred in the judgment.
ORDER
¶1 Held: The circuit court did not abuse its discretion in denying pretrial release.
¶2 Defendant-appellant, Ronald Crosby (defendant), appeals from the circuit court’s March
20, 2024 order granting the State’s petition for revocation of his pretrial release pursuant to
section 110-6.1(a) of the Code of Criminal Procedure of 1963 (Code), as recently amended by
Public Acts 101-652, § 10-255 and 102-1104, § 70 (eff. Jan. 1, 2023) (725 ILCS 5/110-6.1(a)(1),
(6) (West 2022)), and commonly referred to as “the Safety, Accountability, Fairness and Equity-
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Today (SAFE-T) Act” or the “Pretrial Fairness Act” (Act). See also Ill. S. Ct. R. 604(h) (eff. Oct.
19, 2023); Rowe v. Raoul, 2023 IL 129248, ¶ 52 (lifting stay and setting effective date as
September 18, 2023). On appeal, defendant contends that the State failed to meet its burden of
proving by clear and convincing evidence that he poses a real and present threat to the safety of
any person or the community and that no conditions of release could mitigate the risk of that
threat. For the following reasons, we affirm.
¶3 BACKGOUND
¶4 Defendant was arrested on March 19, 2024. Via amendment, defendant’s concession and
the circuit court’s agreement, the State filed a verified petition seeking to deny pretrial release
pursuant to sections 110-2, and 110-6.1(a)(1) of the Act (725 ILCS 5/110-2, 110-6.1(a)(1) (West
2023)), alleging that the he was being charged with unlawful use of a weapon by a felon
(UUWF), 1 which is a detainable felony, and that his pretrial release posed a real and present
threat to the safety of the community. The State further asserted that based on the specific and
articulable facts of that case, no condition or combination of conditions that the court could
impose would mitigate the risk of that threat.
¶5 At the hearing on the petition, the State proffered that on March 19, 2024, officers
responded to a call of a person with a gun. Upon arriving at the victim’s address, the victim told
police that defendant, who was his girlfriend’s husband, had been threatening him. The victim
recounted that defendant was driving slowing down the street where he was and approached him,
1
Originally, defendant was charged by felony complaint with one count of being an armed
habitual criminal (AHC) (720 ILCS 5/24-1.7(a) (West 2022)), and by misdemeanor complaint
with one count of aggravated assault with a deadly weapon (720 ILCS 5.0/12-2-C-1) (West
2022)). As noted, at the subsequent hearing in this matter, the State sought leave to amend the
complaint to UUWF instead of AHC, defendant agreed, and the circuit court allowed leave and made note
of that amendment.
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pointed a firearm at him while he (defendant) was in his vehicle, cocked it, and said that one of
these days he will kill him while he (the victim) is parking his car. The victim was able to
observe that the vehicle was a black Dodge Durango and he gave police the license plate
information, which he said included temporary plates. Later, while on patrol nearby the area, an
officer saw a black Dodge Durango matching the description, being driven by defendant. The
officer noted the vehicle was missing the front registration but that there was a temporary license
plate that further matched the information provided by the victim.
¶6 Upon pulling the vehicle over, defendant refused to exit at the officer’s request. More
officers were called, and it was affirmed that this was the identified vehicle. Officers asked
defendant if there was a gun in the vehicle, and he replied that there was and that it was in the
glovebox. The victim was then transported to the area where the vehicle had been curbed, and
he identified defendant as the one who threatened him with a firearm. A firearm (a 9 mm luger),
along with a magazine, were recovered from the glovebox, and the victim identified the gun as
the one defendant had “racked and pointed at him” while slowly driving by him.
¶7 With respect to defendant’s prior criminal history, the State pointed out that it was
“extensive.” He has 5 felony convictions: a 2006 conviction for aggravated battery to a police
officer for which he received 3 years’ imprisonment; 2 convictions in 2005 for obstruction of
justice (30 months’ imprisonment) and mob action (2 years’ imprisonment); a 2003 conviction
for aggravated battery to a police officer (3 years’ imprisonment); and a 2000 conviction for
possession of a controlled substance, for which he was originally sentenced to probation but then
received 3 years’ imprisonment after that was revoked. Defendant also has four misdemeanor
convictions: disorderly conduct (2019), driving on a revoked license (2016), possession of
marijuana (2016), and driving on a suspended license (2015). Defendant had been convicted
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previously of AHC, but that conviction was later reversed and he received a certificate of
innocence.
¶8 The State further proffered a LEADS background check that revealed defendant has two
out-of-state warrants for his arrest (Wisconsin from 2023 and Indiana from 2017), both for
failure to appear. In addition to all this, the State informed the court that defendant currently has
two active cases pending in DuPage County, both from earlier this year (2024), and both for
which he is on pretrial release: one for battery and one for theft.
¶9 After its proffer, the State argued that the proof was evident and the presumption great
that defendant committed the offense of UUWF because he, a convicted felon with an “extensive
criminal history,” was in possession of a firearm, the gun was found in the glovebox of the car he
was driving and in which he was the sole occupant, and the victim was able to identify both
defendant as the person who pointed the gun at him and the gun itself. The State also argued that
pretrial detention was necessary because defendant posed a real and present threat to the safety
of the community based on the facts that he pointed a gun at someone, he was found in
possession of that gun, he has crimes of violence in his background (including two convictions
for aggravated battery), he has an active pending battery case in DuPage County, and he has four
misdemeanor convictions. The State further pointed out that, because of his two out-of-state
warrants for failure to appear, in addition to his lengthy criminal history and the two pending
DuPage County cases, it was evident he could not adhere to any conditions set by the court.
¶ 10 Pretrial services noted for the circuit court that defendant scored a 6 out of 6 on the new
criminal activity scale and a 5 out of 6 on the failure to appear scale. He had also received a flag
for “new violent criminal activity.”
¶ 11 After the State rested, defense counsel first argued that the State failed to show by clear
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and convincing evidence that the proof was evident or the presumption great that defendant
committed the charged offense, particularly, that he possessed the firearm at issue. Counsel
asserted that officers did not find the gun on his person but, rather, in a locked glovebox, and that
the car did not belong to him but, rather, to his girlfriend. Counsel also asserted that officers did
not see him use the gun, that the only allegation of his possession and use of it comes from
“someone who is involved in an intimate relationship with a not even yet ex-wife” of defendant
with whom he is embroiled in a “very contentious divorce,” and counsel disputed that defendant
made a statement to officers that the gun was in the glovebox. Defense counsel next argued that
defendant was not a clear and present threat to anyone in the community because the victim’s
motive “to tell this story” was suspect. Counsel further noted that, after conferring with pretrial
services, the evaluations and scores calculated had included consideration of defendant’s prior
AHC conviction, which had since been reversed and a certificate of innocence issued but which
has not yet been expunged from his record. Finally, counsel pointed out that defendant’s last
felony conviction was from 2006, he has no firearms convictions, his current pending cases in
DuPage County are “just allegations,” and the record “does not show any allegations of fleeing,”
so there are “certainly conditions of release” by which he could abide, such as electronic
monitoring while staying at his girlfriend’s home.
¶ 12 Finally, in mitigation, defense counsel offered that defendant is a 42-year-old lifelong
resident of Cook County who lives with his girlfriend, “has a number of children” he supports, is
involved in his church and has worked for the past six years as an unarmed security guard.
¶ 13 After hearing all the evidence, the circuit court first found that the State met its burden in
proving by clear and convincing evidence that defendant had committed the detainable offense
of UUWF. Focusing on the prime element of possession, the court reexamined both the State’s
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proffer and defense counsel’s arguments and noted that officers responded to a call of a person
with a gun who pointed it at the victim, cocked it and verbally threatened his life. Very soon
thereafter, officers saw the vehicle matching the description given by the victim, curbed it, and
defendant admitted that there was a firearm in the vehicle, which officers recovered in the
glovebox and found to be loaded. The victim identified defendant as the person who pointed the
firearm at him and threatened him with it, and he identified the firearm as being the gun he used
to do so. The court acknowledged all of defendant’s proffered points of contention, including
that the gun was recovered in the glovebox, the car belongs to his girlfriend, and that there may
be possible motives for the victim to be untruthful. However, after considering them, it
concluded that the State had met the burden of proof that defendant was in (at least) constructive
possession of the firearm, and that he has at least one (though the record shows five) prior felony
convictions.
¶ 14 Next, the court found that the State met its burden in proving by clear and convincing
evidence that defendant posed a real and immediate threat to the safety of others and the
community. In this respect, the court stated it “can’t overlook the violent nature of the offense
where this defendant is alleged to have pointed a firearm after he cocked it, pointed it at a victim
and threatened [him with] words to the effect of conveying a threat of killing the victim.” It also
took into account his five prior felony convictions and, though noting the most recent was from
2006, expressed these are “five reasons why this defendant should never be near a firearm let
alone possessing a firearm and threatening another individual with a firearm.”
¶ 15 Lastly, the court held that there were no conditions of release that it could impose that
would mitigate the risk of threat to the community. The court stated that while it considered the
pretrial services scores and evaluations, it noted both the evidence presented in mitigation by
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defense counsel and, in particular, the certificate of innocence issued on his reversed AHC
conviction that had yet to be expunged from his record, which “may have led to a somewhat
more elevated pretrial score,” counteracting those evaluations. The court stated that it was
“balancing” all that with the nature and circumstances of this incident and defendant’s criminal
history which, though his most recent felony conviction was from 2006, he has two felony
convictions for crimes of violence and four recent misdemeanor convictions, resulting in “a very
extensive criminal history.” The court found “even more concerning” the fact that at the time of
this incident, defendant was on pretrial release for two separate and recent cases in DuPage
County, one of which was a crime of violence, demonstrating that “[o]bviously, pretrial release
with conditions [i]s a miserable failure” for defendant. Then, in additionally noting he has two
out-of-state warrants for failure to appear, the court stated the only condition of release it could
seriously consider would be electronic monitoring; but, based on everything it had heard, it
believed “electronic monitoring would be woefully inadequate,” as it “will not prevent this
defendant from committing crimes of violence, *** from possessing firearms, *** and defendant
has already shown that he is not capable of complying with conditions of pretrial release.”
¶ 16 Based on all this, the circuit court granted the State’s petition and ordered that defendant
be detained pretrial. Defendant now appeals. See Ill. S. Ct. R. 604(h) (eff. Oct. 19, 2023).
¶ 17 II. ANALYSIS
¶ 18 Initially, defendant has elected to not file a memorandum in this appeal. See Ill. S. Ct. R.
604(h)(2) (eff. Dec. 7, 2023) (stating that “[t]he appellant may file, but is not required to file, a
memorandum not exceeding 4500 words, within 21 days of filing of the Rule 328 supporting
record”). Instead, he used the template approved for appeals brought under Rule 604(h); he
checked only two boxes on the six-page form notice of appeal under the heading “Grounds for
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Relief” and typed some further explanation which he attached thereto. The first box he checked
alleged the State failed to meet its burden of proving by clear and convincing evidence that he
“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.” Second, he checked the box alleging the State
failed to meet its burden of proving by clear and convincing evidence that “no condition or
combination of conditions can mitigate the real and present threat to the safety of any person or
persons or the community, based on the specific, articulable facts of the case.” For the following
reasons, we disagree with defendant, finding that the record before us does not support his
contentions and plainly rebuts the assertions he makes in his form notice of appeal.
¶ 19 Pursuant to sections 110-2-1(a) and 110-6.1(e) of the Act, all defendants are presumed
eligible for pretrial release. See 725 ILCS 5/110-2(a), 110-6.1(e) (West 2023). The State may
detain an accused if it establishes that the charged offense is eligible for detention and then
proves that: (1) the proof is evident or the presumption great that the defendant committed an
offense which qualifies him for pretrial detention; (2) the defendant poses a real and present
threat to the safety of any specific person or persons or the community, based on the specific
articulable facts of the case; and (3) no condition or combination of conditions can mitigate that
real and present threat. See 725 ILCS 5/110-6.1(e) (West 2023).
¶ 20 The State must prove each and every one of these three elements by clear and convincing
evidence. Id. Clear and convincing evidence is “that quantum of proof that leaves no reasonable
doubt in the mind of the fact finder about the truth of the proposition in question.” (Internal
quotation marks omitted.) In Re Tiffany W., 2012 IL App (1st) 102492-B, ¶ 12. It “is more than
a preponderance but less than is required to convict an individual of a criminal offense.” Id. If
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the State fails to carry its burden on any of these three elements, the presumption of release
remains, and the detention is unlawful. See 725 ILC 5/110-6.1(e) (West 2022).
¶ 21 At present, our courts disagree as to the appropriate standard of review. Some appellate
decisions have concluded that all aspects of detention hearings under the Act are subject to abuse
of discretion (see People v. Whitmore, 2023 IL App (1st) 231807, ¶¶ 18-19; People v. Inman,
2023 IL App (4th) 230864, ¶ 11), while others have exclusively utilized the manifest weight of
the evidence standard (see People v. Stock, 2023 IL App (1st) 231753, ¶ 12; People v. Rodriguez,
2023 IL App (3d) 230450, ¶ 8). Other courts have adopted a mixed approach, under which the
circuit court’s determinations that the State has proved by “clear and convincing evidence” that
the defendant committed a qualifying offense, and that he is dangerous, is reviewed for the
manifest weight of the evidence, while the ultimate decision regarding detention, or the
imposition of conditions of release are subject to abuse of discretion review. See People v.
Parker, 2024 IL App (1st) 232164, ¶ 50; People v. Saucedo, 2024 IL App (1st) 232020, ¶¶ 31-
36; People v. Hodge, 2024 IL App (3d) 230543, ¶ 8; People v. Vingara, 2023 IL App (5th)
230698, ¶ 10; People v. Trottier, 2023 IL App (2d) 230317, ¶ 13; People v. Reed, 2023 IL App
(1st) 231834, ¶ 24, 31. Still others have concluded that appeals under the Act should be
reviewed de novo. See People v. Battle, 2023 IL App (1st) 231838, ¶ 18; Saucedo, 2024 IL App
(1st) 232020 (Ellis, J., specially concurring); see also People v. Herrera, 2023 IL App (1st)
231801, ¶¶ 22-24 (declining to decide what standard of review applies, but suggesting that even
under de novo review, the case could be resolved based on legal error).
¶ 22 While we would affirm the instant detention order under any standard, we agree with the
rationale of those decisions that hold that detention orders under the Act should be reviewed for
an abuse of discretion. See Whitmore, 2023 IL App (1st) 231807, ¶¶ 18-19; Inman, 2023 IL App
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(4th) 230864, ¶ 11. An abuse of discretion occurs when the circuit court’s “ ‘ruling is arbitrary,
fanciful, unreasonable, or where no reasonable person would take the view adopted by the circuit
court.’ ” In re Marriage of Heroy, 2017 IL 120205, ¶ 24 (quoting Blum v. Koster, 235 Ill. 2d 21,
36 (2009)); see People v. Johnson, 2019 IL App (3d) 190582, ¶ 8. In addition, as the reviewing
court, we may not substitute our judgment for that of the circuit court merely because we would
have analyzed the appropriate factors differently. See Inman, 2023 IL App (4th) 230864, ¶ 11.
¶ 23 Turning to the merits of defendant’s contentions, we begin by addressing whether the
State proved by clear and convincing evidence that he was a real and present threat to the safety
of persons or the community. See 725 ILCS 5/110-6.1(e) (2) (West 2023). For purposes of this
element, the Act provides a non-exhaustive list of factors that the circuit court may consider in
assessing a defendant’s “dangerousness” including, inter alia: (1) the nature and circumstances
of the offense; (2) the defendant’s criminal and social history; (3) the defendant’s access to
weapons; and (4) whether the defendant committed any offense while on some form of release
from custody. See 725 ILCS 5/110-6.1(g) (West 2023).
¶ 24 In the present case, defendant asserts that the State failed to meet its burden in this
respect because his history shows he is not a danger since his last felony conviction was in 2006,
the pretrial services score factored in his AHC conviction for which he had received a certificate
of innocence but which had yet to be expunged from his record, and he “has no recent
convictions for violent conduct.” He further insists the State did not proffer that he discharged
the firearm at issue and that complainant’s account of what happened is suspect since he is in a
relationship with his former wife. We disagree.
¶ 25 In finding that defendant posed a real and immediate threat to the safety of the
community, the circuit court clearly and appropriately relied on the aforementioned statutory
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factors. It found relevant the nature and circumstances of this offense, along with all the
intricacies of defendant’s prior criminal history, and the fact that he committed the instant crime
while he had two separate, recent and pending charges in DuPage County (one of which included
violence) for which he was on pretrial release. See 725 ILCS 5/110-6.1(g) (West 2023).
¶ 26 More specifically, the court’s oral pronouncement rebuts all the challenges defendant
makes regarding this point. That is, first, while he insists he has no “recent” convictions for
violent conduct, the court stated it could not overlook “the violent nature” of this offense, which
involved him, a convicted felon, driving slowly by the victim, cocking a firearm, and pointing it
at him while verbally conveying a threat of killing him. The victim was not unknown to him; he
is involved with defendant’s soon-to-be ex-wife in what defendant himself admitted was a “very
contentious divorce.” Next, while defendant points out that his last felony conviction was
somewhat remote in that it was from 2006, the record shows the court expressly noted this fact;
the court weighed it and determined it did not overcome the more critical fact that his criminal
history did not involve just one felony, but five, two of which were convictions for aggravated
battery. Additionally, he has four more recent misdemeanor convictions. Finally, defendant’s
assertion that his pretrial services scores mentioned at the hearing factored in a prior AHC
conviction for which he had received a certificate of innocence but which had yet to be expunged
from his record is of no merit. To the contrary, the record shows the court made special note of
this; it explicitly stated that it knew about defendant’s certificate of innocence and it
acknowledged that his services scores may have, thus, been skewed. However, this was just one
of many factors it considered, and it simply did not outweigh its ultimate assessment that
defendant, a convicted felon whom it specifically declared should not be near firearms or
threatening someone with a firearm, posed a threat to persons and the community.
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¶ 27 Under this record, and in light of the statutory factors considered by the circuit court, we
fail to see how its determination that defendant posed a safety risk to the community could be
construed as “unreasonable, fanciful or arbitrary.” In re Marriage Heroy, 2017 IL 120205, ¶ 24.
Accordingly, we conclude that the court did not abuse its discretion in finding that defendant
posed a real and present danger to the community, requiring pretrial detention.
¶ 28 Second, and lastly, we address whether any conditions of release could have mitigated
the risk of that threat. See 725 ILCS 5/110-6.1(e) (3) (West 2023). The State bears the burden
of proving by clear and convincing evidence that no condition or combination of conditions
could mitigate the real and present threat to the safety of any person or the community. See 725
ILCS 5/110-6.1(e) (West 2023). Section 110-10(a) establishes mandatory conditions that must
be imposed for defendants released prior to trial, and section 110-10(b) provides various
discretionary conditions the circuit court can impose. See 725 ILCS 5/110-10(a), (b) (West
2023). Defendant here contends he has “a record of stability and ability to comply with orders”
and, as he proffered in mitigation, he lives with his girlfriend, he supports a child, he is a lifelong
resident of Cook County, and he works full time as an unarmed security guard. He posits that
based on this, “he would be able to be on electronic monitoring” and that “he has every reason
and ability to follow the court’s conditions of release.” For the following reasons, we disagree.
¶ 29 In finding that no conditions of release could mitigate the threat to the community, the
circuit court unequivocally listed everything it considered. First, it restated for the record all the
evidence defendant presented in mitigation—exactly what defendant has again restated here—
regarding his living situation, his child(ren), his residency in Cook County, and his employment.
It also again acknowledged on his behalf the equivocality of his pretrial services scores, which
were “somewhat more elevated” due to the mistaken consideration of the reversed AHC
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conviction. The court then balanced this with the nature and circumstances of this incident and
defendant’s criminal history which it found to be “very extensive” and noted that it involved
violence on more than one occasion. And, the court found “even more concerning” the fact that
at the time of this incident, defendant was on pretrial release for two recent and separate cases,
one of which was also a crime of violence, in DuPage County. This, coupled with defendant’s
two out-of-state warrants for failure to appear, led the court to believe, contrary to defendant’s
insistence, that he cannot follow conditions for release nor does he comply with court orders.
The court considered that the only viable condition of release would be electronic monitoring;
however, it immediately determined that, based on defendant’s history, this option “would be
woefully inadequate” and would not prevent him from “committing crimes of violence, * * *
from possessing firearms, * * * and defendant has already shown that he is not capable of
complying with conditions of pretrial release.” The record in this case establishes that the court
considered the nature of the allegations along with the circumstances surrounding defendant’s
arrest and his prior behavior before explicitly rejecting pretrial electronic monitoring as a viable
condition of release. Therefore, we find nothing “arbitrary, fanciful or unreasonable” in the
court’s assessment that, based on everything presented, “pretrial release with conditions [i]s a
miserable failure” for defendant. See Heroy, 2017 IL 120205, ¶ 24.
¶ 30 CONCLUSION
¶ 31 Accordingly, for the foregoing reasons, we affirm the order of the circuit court of Cook
County denying pretrial release.
¶ 32 Affirmed.
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