People v. Hanes , 2023 IL App (4th) 230822-U ( 2023 )

NOTICE 2023 IL App (4th) 230822-UThis Order was filed under
FILED
Supreme Court Rule 23 and is December 4, 2023
NOS. 4-23-0822, 4-23-0825 cons.
not precedent except in the Carla Bender
limited circumstances allowed 4th District Appellate
under Rule 23(e)(1).
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Rock Island County
DESMOND J. HANES, ) Nos. 23CF609
Defendant-Appellant. ) 23CF645
)
) Honorable
) Frank R. Fuhr,
) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court.
Presiding Justice DeArmond concurred in the judgment.
Justice Lannerd specially concurred.
ORDER
¶1 Held: The appellate court affirmed, concluding the trial court’s order denying pretrial
release was not an abuse of discretion.
¶2 Defendant, Desmond J. Hanes, appeals the trial court’s order denying his pretrial
release under article 110 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/art. 110
(West 2022)), which was recently amended by Public Act 101-652 (eff. Jan. 1, 2023), commonly
known as the Pretrial Fairness Act (Act). Pub. Act 101-652, § 10-255 (eff. Jan. 1, 2023); Rowe v.
Raoul, 2023 IL 129248, ¶ 52 (resetting the effective date of the Act to September 18, 2023).
Defendant argues that the Act does not allow the State to file a verified petition to deny pretrial
release in cases in which a defendant remains in custody after having been ordered released on
the condition of depositing security. Alternatively, defendant argues the court erred by finding
that (1) the State proved by clear and convincing evidence he posed a safety threat if released
and (2) no conditions could mitigate that threat.
¶3 We disagree and affirm.
¶4 I. BACKGROUND
¶5 On August 3, 2023, in Rock Island County case No. 23-CF-609, the State charged
defendant with armed robbery (720 ILCS 5/18-2(a)(2) (West 2022)), alleging that while armed
with a firearm, defendant knowingly took a rifle from the person of Maxwell Doran by the use of
force. That offense allegedly occurred on August 1, 2023. Defendant appeared in court on
August 18, 2023, at which time the trial court set his bond at $100,000.
¶6 On August 18, 2023, in Rock Island County case No. 23-CF-645, the State
charged defendant with two counts of aggravated unlawful use of a weapon (AUUW) (720 ILCS
5/24-1.6(a)(1), (a)(3)(A-5), (a)(3)(C), (d)(2) (West 2022)). These offenses were alleged to have
been committed on August 17, 2023. The trial court set a $30,000 bail bond on those charges.
¶7 Rock Island County case No. 23-CF-645 is docketed in this court as case No.
4-23-0822, and Rock Island County case No. 23-CF-609 is docketed in this court as case No.
4-23-0825. On this court’s own motion, we have consolidated case Nos. 4-23-0822 and
4-23-0825 for disposition.
¶8 On September 8, 2023, defendant, who had not been able to secure his release by
posting bond, filed a motion for release under the Act. Defendant’s motion for pretrial release
under the Act was filed in case No. 23-CF-645 on September 8, 2023, as a joint motion with case
No. 23-CF-609.
¶9 On September 13, 2023, the State, also pursuant to the Act, filed its verified
petition to deny defendant pretrial release. In the State’s petition, the State set forth the details
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regarding the armed robbery with which defendant was charged. The State’s petition also
included the following description of defendant’s criminal conduct regarding the AUUW
charges:
“On 8/17/2023 East Moline detectives were conducting surveillance on
[defendant] who had an active warrant for his arrest for Armed Robbery.
[Defendant] has a GPS monitor and police were able to locate his person in
Moline. Officers watched [defendant] and an unknown female get into a maroon
Volvo and leave the area. Officers conducted a stop on the vehicle and took
[defendant] into custody, he advised that he had a gun in his waistband. This
being a .45cal Springfield XDS bearing serial number S3107119. A valid SW of
his home yielded many ghost gun parts and tools for assembly. [Defendant] has
no [firearm owner’s identification (FOID) card] and no CCL [(concealed-carry
license)].”
¶ 10 On September 18, 2023, the trial court conducted a hearing on the respective
petitions regarding defendant’s pretrial release. At that hearing, the State made a proffer that
included the circumstances under which defendant robbed Maxwell Doran of a rifle. Doran met
with defendant at a Big 10 Mart in East Moline to sell defendant the rifle. Doran got out of his
car to show defendant the rifle he was proposing to sell. When Doran asked to see the money,
defendant raised a handgun from his pocket, put it in Doran’s face, said he was taking the rifle,
and told Doran he better “ ‘not say shit.’ ” Doran later positively identified defendant in two
photo lineups.
¶ 11 The State also informed the trial court that at the time of this offense, defendant
was on GPS “as a material witness in a homicide case.”
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¶ 12 The State’s proffer also included how East Moline detectives were conducting
surveillance on defendant on August 17, 2023, because he had an active warrant for his arrest for
the armed robbery he allegedly committed on August 1, 2023. Because defendant had a GPS
monitor, the police were able to find him and stop the vehicle in which he was riding. He then
advised the officers that he had a .45-caliber gun in his waistband.
¶ 13 A subsequent search pursuant to a search warrant of his home yielded many ghost
gun parts and tools for assembly. The State also pointed out that defendant had no FOID card
and no concealed-carry license.
¶ 14 In conclusion, the State argued that (1) defendant did not have the ability to abide
by the law despite being on GPS and (2) there was no less-restrictive alternative than to require
that he stay in custody.
¶ 15 Defense counsel in response agreed with the State that “on both matters there are
charges which are eligible for detention.” However, counsel then argued that the State had not
met its burden of proof by clear and convincing evidence that defendant is a real and present
threat to the safety of any person or persons or the community. Counsel also argued that the State
made no allegation of any further alleged harmful acts between the two dates of these criminal
charges or that defendant was in any way combative or failed to cooperate during his
apprehension on August 17.
¶ 16 The trial court then ordered defendant detained, explaining as follows:
“Both parties stipulate that he is charged with detainable offenses. Based
on the nature and circumstances around both of these offenses and based upon the
evidence that being on a GPS did not prevent him from allegedly—and it’s clear
and convincing evidence—that he did an armed robbery where Court Services
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was going to be able to determine exactly where he was. I don’t think there’s any
conditions that I could put on him to ensure the safety of the general public, so he
is a danger to the community.”
¶ 17 The trial court then advised defendant of his right to appeal. In response, defense
counsel informed the court that he would be filing a notice of appeal on defendant’s behalf and
asked the court to appoint the Office of the State Appellate Defender (OSAD) to be defendant’s
counsel on appeal. The court granted the motion.
¶ 18 II. ANALYSIS
¶ 19 On appeal, defendant argues that the Act does not permit the State to file a
petition to deny pretrial release in a case in which a defendant remains in custody after being
ordered released on the condition of posting security. Alternatively, defendant argues the trial
court erred in finding the State proved by clear and convincing evidence that he posed a safety
threat if released that no conditions could mitigate.
¶ 20 We disagree and affirm.
¶ 21 A. The State’s Verified Petition
¶ 22 Defendant contends the trial court erred in denying his pretrial release because the
Act does not permit the State to file a petition responding to his motion seeking pretrial release,
such that the court lacked authority to consider and grant the State’s petition. Relying on section
110-6.1(c) of the Code (725 ILCS 5/110-6.1(c) (West 2022)), defendant insists the State may not
file a petition to deny pretrial release except during a defendant’s first appearance or upon a
defendant’s arrest and release. The State asserts the Code allows courts to take the necessary
steps to review and revise a defendant’s pretrial detention, citing section 110-6(g) (725 ILCS
5/110-6.1(g) (West 2022)).
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¶ 23 Defendant acknowledges that he did not preserve this issue for appeal but asserts
the plain error doctrine applies.
¶ 24 In People v. Jones, 2023 IL App (4th) 230837, ¶¶ 16-24, a case with facts
remarkably similar to those of the present case, this court recently addressed this same argument
and rejected it. In doing so, this court noted that the Fifth District had reached a different
conclusion on—again—similar factual circumstances in People v. Vingara, 2023 IL App (5th)
230698, and People v. Rios, 2023 IL App (5th) 230724, but we respectfully disagreed with the
Fifth District’s analysis and conclusion. Jones, 2023 IL App (4th) 230837, ¶¶ 18-23. In this case,
we will adhere to what we wrote in Jones and similarly reject defendant’s argument that the State
could not file a petition to deny pretrial release in a case in which a defendant remains in custody
after being ordered released upon the posting of monetary bail.
¶ 25 We note that in OSAD’s memorandum for defendant in support of his Illinois
Supreme Court Rule 604(h) (eff. Sept.18, 2023) appeal, OSAD makes no mention of the fact that
in both of these consolidated cases defendant filed a motion on September 8, 2023, for release
under the Act. His doing so was five days before the State filed its verified petition on September
13, 2023, to deny release to defendant under the Act. Even though—on the particular facts of this
case—OSAD’s omission of defendant’s motion for release makes no difference to our ultimate
conclusion, we nonetheless caution OSAD that we expect its statements of facts in support of
appeals under Rule 604(h) to be complete and accurate. We will assume that OSAD’s failure in
this case to mention defendant’s filing of his motion for release under the Act was inadvertent.
¶ 26 B. Denial of Pretrial Release
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¶ 27 Alternatively, defendant argues the trial court abused its discretion when it denied
his pretrial release and asserts the State failed to prove by clear and convincing evidence that he
posed a safety threat if released which no conditions could mitigate.
¶ 28 As we observed in Jones, 2023 IL App (4th) 230837, ¶ 27, and People v. Inman,
2023 IL App (4th) 230864, ¶ 10, “[w]e have historically reviewed bail appeals under Illinois
Supreme Court Rule 604(c)(1) (eff. Sept. 18, 2023) using an abuse of discretion standard.”
Although Rule 604(h), as amended due to the Act, provides a new procedure for these appeals,
“the Act neither mandates nor suggests a different standard of review.” Inman, 2023 IL App
(4th) 230864, ¶ 11; see People v. Johnson, 2019 IL App (3d) 190582, ¶ 8, 147 N.E.3d 756 (“We
will review the decision of the trial court [on a motion for review under Rule 604(c)] for an
abuse of discretion.”). “An abuse of discretion occurs when the circuit court’s decision is
arbitrary, fanciful[,] or unreasonable, or where no reasonable person would agree with the
position adopted by the [circuit] court.” (Internal quotation marks omitted.) People v. Simmons,
2019 IL App (1st) 191253, ¶ 9, 143 N.E.3d 833.
¶ 29 In defendant’s argument to this court, he states that he stands on the argument he
made in the trial court and asks this court to reverse the trial court’s granting of the State’s
petition to detain. We decline to do so because we find no abuse of discretion in the trial court’s
decision to deny defendant’s release from custody.
¶ 30 We need not repeat the evidence presented to the trial court by the State’s proffer.
Instead, we will simply note that a court must consider the various factors listed in section 110-
6.1(a)(1)-(8), (g) of the Code before concluding whether detention is appropriate. 725 ILCS
5/110-6.1(a)(1)-(8), (g) (West 2022).
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¶ 31 Based upon the State’s petition and proffer, the trial court ultimately found the
State had met its burden by clear and convincing evidence, and the court entered a detention
order in accordance with its finding. We conclude that (1) the court sufficiently explained its
findings and (2) the court did not abuse its discretion by finding that the State met its burden. We
view the trial court’s decision as far from “arbitrary, fanciful[,] or unreasonable” or one where
“no reasonable person would agree with the position adopted.” (Internal quotation marks
omitted.) Simmons, 2019 IL App (1st) 191253, ¶ 9.
¶ 32 III. CONCLUSION
¶ 33 For the reasons stated, we affirm the trial court’s order.
¶ 34 Affirmed.
¶ 35 JUSTICE LANNERD, specially concurring:
¶ 36 I agree with my esteemed colleagues that we should affirm the circuit court’s
judgment denying defendant pretrial release. However, I write separately because I do not join
the analysis contained in paragraphs 24 and 25 of the majority’s decision. The State’s verified
petition in this case was in response to defendant’s petition for release. Therefore, pursuant to
section 110-7.5 of the Code (725 ILCS 5/110-7.5(b) (West 2022)), defendant would be subject to
the procedures for persons charged prior to the Act’s effective date.
¶ 37 This case is distinguishable from the factual circumstances in Vingara and Rios.
In those cases, each defendant had monetary bail set and remained in custody prior to the
effective date of the Act. After the Act became effective, the State initiated the petition to detain
the defendant. In the case before this court, defendant initiated the petition for release, and the
State’s petition to detain was in response to defendant’s petition.
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¶ 38 Although Rios and Vingara are factually distinguishable from this case, those
decisions acknowledge, pursuant to section 110-7.5(b) of the Code (725 ILCS 5/110-7.5(b)
(West 2022)), the State may respond to a defendant’s motion. Accordingly, defendant in this
case acquiesced to being subject to the Act, and, as noted in Rios, he “might be detained without
any possibility of pretrial release” after a hearing. Rios, 2023 IL App (5th) 230724, ¶ 17; see also
Vingara, 2023 IL App (5th) 230698, ¶ 22. Based on the facts in this case, the State properly filed
a responsive petition to defendant’s petition for release.
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