People v. Boncosky , 2024 IL App (2d) 230496-U ( 2024 )

2024 IL App (2d) 230496-UNo. 2-23-0496
Order filed February 9, 2024
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
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-1016
)
DOUGLAS R. BONCOSKY, ) Honorable
) Michael E. Coppedge,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court.
Presiding Justice McLaren and Kennedy concurred in the judgment.
ORDER
¶1 Held: The circuit court did not err in granting the State’s petition to deny defendant
pretrial release, based on its finding that no conditions could mitigate his real and
present risk of willful flight. Affirmed.
¶2 In this interlocutory appeal under Illinois Supreme Court Rule 604(h) (eff. Oct. 19, 2023),
defendant, Douglas R. Boncosky, appeals from the circuit court’s order granting the State’s
petition to deny defendant pretrial release and ordering him detained pursuant to Public Acts 101-
2024 IL App (2d) 230496-U652 and 102-1104 (eff. Jan. 1, 2023), commonly known as the Pretrial Fairness Act (Act). 1 See
Rowe v. Raoul, 2023 IL 129248, ¶ 52 (lifting stay and setting effective date as September 18,
2023). Defendant argues that the circuit court erred in finding that the State met its burden of
showing that no conditions could mitigate his real and present risk of willful flight. We affirm.
¶3 I. BACKGROUND
¶4 On October 30, 2023, the State charged defendant with aggravated identity theft—
elderly—second or subsequent (720 ILCS 5/16-30(b)(1) (West 2022) (Class X)), theft—
unauthorized control knowing to deprive—exceeding $1 million (720 ILCS 5/16-1(a)(2)(B) (West
2022) (Class X)), financial exploitation—elderly person (720 ILCS 5/17-56(a) (West 2022) (Class
1)), and forgery—makes or alters document (720 ILCS 5/17-3(a)(1) (West 2022) (Class 3)). It
alleged that, between August 2019 and August 2023, defendant stole $1.9 million from his
memory-impaired aunt, Carroll Merritt, over whom he had a power of attorney, using unauthorized
checks and wire transfers to himself and his business, Americas Best Bath Company.
¶5 A probable cause statement filed on October 30, 2023, alleged that, once an investigation
by Bank of America commenced, defendant attempted suicide and was currently undergoing
outpatient therapy to address his mental health. Defendant had recently sold all of his business’s
assets, as well as his Illinois residence, to move to Florida in November 2023. It further alleged
that defendant had expressed interest in changing his name and had already changed his phone
number to a Florida number. A probation-and-court-services-department form stated that
1
The Act has also been referred to as the Safety, Accountability, Fairness and Equity-Today
(SAFE-T) Act. Neither name is official, as neither appears in the Illinois Compiled Statutes or
public acts.
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2024 IL App (2d) 230496-Udefendant was 54 years old, lived with his girlfriend in a rental residence in Barrington for 9 years,
was unemployed for 3 weeks, and was previously employed by his company (which he had closed
down after 13 years, with a salary listed as “LOST MONEY”). The document also noted that
defendant owned a 2024 Volkswagen Atlas vehicle.
¶6 At an October 31, 2023, hearing, defendant supplied an affidavit of assets and liabilities,
asking the court to appoint the public defender. The affidavit stated that defendant owned a
$50,000 vehicle, had $26,000 in accounts subject to withdrawal, and $2000 in cash and other
personal property. He represented that he owed $50,000 in credit card debt and $500,000 in
business debt. When questioned by the court, defendant testified that he also had $2500 in a
business checking account. His company, Americas Best Bath Company, had gross receipts of
$2.6 or $2.7 million in the past year, but there was no pass-through income to defendant. He
testified that he had losses “for years.” The court denied his request to appoint the McHenry
County Public Defender for trial but appointed the office for purposes of the detention hearing.
¶7 A. State’s Petition
¶8 On October 31, 2023, the State petitioned to deny defendant pretrial release, arguing that
defendant had been charged with detainable offenses—aggravated identity theft, theft, and
financial exploitation—that the proof was evident or the presumption great that he committed the
charged offenses, he had a high likelihood of willful flight, and that no condition or combination
thereof could mitigate defendant’s real and present risk of willful flight.
¶9 At the hearing on the State’s petition, the State argued that defendant should be detained
based on his flight risk, asserting that it possessed police reports, as well as emails and letters by
defendant, that reflected the following. An investigation commenced after defendant attempted
suicide and wrote a letter. The victim is 74 years old, lives in a memory care facility, and is
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2024 IL App (2d) 230496-Udefendant’s aunt. Defendant had a position of trust with her. Addressing willful flight, the State
asserted that defendant had taken several steps indicative of flight. Specifically, while the
investigation was pending, he sold his business, sold his home, made statements that he intended
to move to Florida in the first week of November, changed his phone number to a Florida number,
and expressed interest in changing his name.
¶ 10 Defense counsel responded that the suicide attempt occurred on August 22, 2023. Counsel
argued that, if someone sought to evade prosecution, they would not “let everyone know where
they are going.” Counsel noted that defendant has lived in Illinois his entire life, has ties to the
community, his mother lives in Crystal Lake, he has a brother in Hawthorn Woods, and another
brother in Chicago. Counsel argued that defendant was not a flight risk and that conditions could
be imposed to minimize any such risk, such as ordering him not to leave Illinois and to surrender
his passport. Addressing defendant’s plans to move to Florida, counsel argued that they were
made in advance of knowing that a warrant had been issued.
¶ 11 B. Circuit Court’s Ruling
¶ 12 On October 31, 2023, the circuit court granted the State’s petition, finding that the proof
was evident or the presumption great that defendant committed the charged offenses. The court
also found that the State met its burden to show that defendant posed a real and present threat of
willful flight, noting the amount of money he allegedly stole would provide him the ability to:
“transition to a different physical environment, namely, an environment potentially out of
the United States. It is not implausible to conclude that if [defendant] went to Florida, [he
would] then have access to ports of exit that would allow [him] to leave the United States
to be in an environment either in Central America, South America, or some other area that
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2024 IL App (2d) 230496-Uwould not have extradition proceedings allowing [his] return to the State of Illinois. Again,
these are sizable amounts of assets.”
The court acknowledged that defendant had no history of avoiding court obligations, but the facts
here, including the possibility of non-probationable Class X felony convictions, presented a
possibility that he would flee Illinois. As to conditions that could mitigate the risk of willful flight,
the court rejected electronic home monitoring or GPS options, finding that, given the charges
against defendant and the amount of allegedly-stolen assets, such options would be insufficient or
that “it is not improbable to conclude that [defendant] could find a way to defeat those tracking
mechanisms and flee this jurisdiction.” In its written order, the court noted that defendant had
allegedly “obtained substantial assets from the alleged events,” had taken affirmative steps to
change communication information, such as obtaining a Florida phone number, and expressed his
intent to move to Florida.
¶ 13 Defendant appealed, seeking release with appropriate conditions. In his notice of appeal,
he checked a box indicating that the court erred in finding that the State met its burden of showing
that no condition or combination thereof could mitigate his risk of willful flight. Defendant
elaborated that he has strong and deep ties to the community and that his plans to move to Florida
pre-dated his arrest. He also asserted that, as of the hearing date, he had no plans to flee the
jurisdiction; the (unspecified) email presented was taken out of context; he had not taken steps to
change his name; and he will seek employment under his given name.
¶ 14 On January 9, 2024, the Office of the State Appellate Defender filed a memorandum in
support of defendant’s appeal, and, on January 30, 2024, the State filed its responsive
memorandum.
¶ 15 II. ANALYSIS
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2024 IL App (2d) 230496-U¶ 16 Defendant argues that the circuit court erred in finding that the State met its burden of
showing that no conditions could mitigate his real and present risk of willful flight based on his
alleged access to $1.9 million, particularly where the State presented no evidence that he still had
the money he allegedly stole. He also contends that the court erred in merely hypothesizing that
he might be able to use the money to defeat GPS monitoring. For the following reasons, we reject
defendant’s arguments.
¶ 17 We review under the manifest-weight-of-the-evidence standard the circuit court’s factual
findings regarding whether the State presented clear and convincing evidence that conditions of
release would mitigate defendant’s risk of willful flight to avoid prosecution. People v. Trottier,
2023 IL App (2d) 230317, ¶ 13. A finding is against the manifest weight of the evidence where it
is unreasonable. Id. We review for an abuse of discretion the circuit court’s ultimate determination
regarding pretrial release. Id. An abuse of discretion occurs only when the circuit court’s decision
is unreasonable. Id.¶ 18 Pretrial release may be denied where a “person has a high likelihood of willful flight to
avoid prosecution and is charged with *** [a] felony offense other than a Class 4 offense.” 725
ILCS 5/110-6.1(a)(8)(B) (West 2022). The State “bear[s] the burden of proving by clear and
convincing evidence that *** no condition or combination of conditions *** can mitigate *** the
defendant’s willful flight[.]” 725 ILCS 5/110-6.1(e)(3) (West 2022).
¶ 19 “Willful flight” means:
“intentional conduct with a purpose to thwart the judicial process to avoid prosecution.
Isolated instances of nonappearance in court alone are not evidence of the risk of willful
flight. Reoccurrence and patterns of intentional conduct to evade prosecution, along with
any affirmative steps to communicate or remedy any such missed court date, may be
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2024 IL App (2d) 230496-Uconsidered as factors in assessing future intent to evade prosecution.” 725 ILCS 5/110-
1(f) (West 2022).
¶ 20 As relevant here, the Act provides that, “[i]n determining which conditions of pretrial
release, if any, will reasonably ensure the appearance of a defendant as required or the safety of
any other person or the community and the likelihood of compliance by the defendant with all the
conditions of pretrial release,” the circuit court shall take into account such matters as: (1) the
nature and circumstances of the offense charged; (2) the weight of the evidence against the
defendant, except that the court may consider the admissibility of any evidence sought to be
excluded; (3) the history and characteristics of the defendant, including the defendant’s character,
physical and mental condition, family ties, employment, financial resources, length of residence
in the community, community ties, past relating to drug or alcohol abuse, conduct, history, criminal
history, and record concerning appearance at court proceedings and whether, at the time of the
current offense or arrest, the defendant was on probation, parole, or on other release pending trial,
sentencing, appeal, or completion of sentence for an offense under any law; (4) the nature and
seriousness of 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, that would be posed by the defendant’s release,
if applicable, as required under paragraph (7.5) of Section 4 of the Rights of Crime Victims and
Witnesses Act; and (5) the nature and seriousness of the risk of obstructing or attempting to
obstruct the criminal justice process that would be posed by the defendant’s release, if applicable.
725 ILCS 5/110-5(a) (West 2022).
¶ 21 Defendant argues that, assuming he had a high likelihood of willful flight, the State did not
prove by clear and convincing evidence that pretrial release conditions could not mitigate it. He
notes that defense counsel argued that the court could have required defendant to remain in
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2024 IL App (2d) 230496-UMcHenry County and that, even if he had no income, his mother lives in Crystal Lake and a brother
lives in Hawthorn Woods. He also suggests that the court could require him to surrender his
passport, submit to GPS location tracking, and obey a limited inclusion zone. Defendant contends
that the circuit court erred in determining that any conditions would be insufficient to mitigate his
likelihood of willful flight because he could somehow use the $1.9 million he stole to defeat any
conditions and flee the country. This was erroneous, he argues, because the court assumed two
things about which the State made no proffer at all: that he (1) still had the funds and (2) had some
way to turn money into a mechanism to defeat GPS location monitoring and other pretrial release
conditions. As to the first, defendant asserts that the State did not proffer that he had $1.9 million
under his control. The charging instruments alleged that he had stolen the funds using checks to
himself and his business, as well as unauthorized wire transfers and that he had a power of attorney
for Merritt, who was in a memory care facility. Defendant contends that nowhere did the State
proffer evidence that he had secreted the funds. The method it proffered that he used did not
suggest, he asserts, sophistication in financial chicanery: rather, the State proffered that he abused
his position of trust to cut himself and his business checks. Defendant also argues that there is no
reason to believe that he still has the money, and he suggests he could have used it to prop up his
high-volume business, which he testified had been generating losses for years. Further, he argues
that, to the extent he still had the money, there was no reason to think that it was held in anything
more exotic than a bank connected either to him or his business, which, the day after the detention
hearing, the State was already moving to freeze. 2
2
On November 1, 2023, the State petitioned to freeze defendant’s assets. 720 ILCS 5/17-
56(h) (West 2022).
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2024 IL App (2d) 230496-U¶ 22 As to his assertion that the circuit court assumed that he had the mechanism to defeat GPS
tracking, border controls, and flee the country, defendant asserts that he has no history of avoiding
court orders, the crime he is charged with is not particularly sophisticated, and there was no
evidence that suggested he has connections with criminals such as smugglers or document forgers.
Buying illegal things, he suggests, is no simple matter, especially while under the State’s scrutiny
and with no prior experience. To the extent that his seeking to move to Florida and expressing an
interest in changing his name suggested willful flight, defendant asserts, they did not demonstrate
the sophistication the circuit court determined he might possess.
¶ 23 We reject defendant’s arguments. The circuit court’s determination that no conditions
could mitigate his risk of flight was reasonable. We find unavailing his suggestion that the State
was required to proffer that he still had the money. In the absence of evidence that it was used to
support his business, this is implicit in the allegations that he stole it. We also find unavailing
defendant’s argument that, to the extent he still had the money, it would have been in a bank
connected to him or his business and which the State had moved to freeze. Given his actions to
move to Florida, it is reasonable to infer that he had the funds in the form of cash or a similar
vehicle that could evade authorities. Indeed, his actions near the time of his arrest reflected that
he intended to do so. The State proffered that, near the time of the bank investigation and his
suicide attempt, defendant had sold his business and home, made statements that he intended to
move to Florida in early November 2023, changed his phone number to a Florida number, and
expressed interest in changing his name. The fact that defendant may have commenced
preparation of these activities before he was arrested does not undermine a finding that he posed a
flight risk and that no conditions could mitigate any risk of his willful flight. His actions focused
on leaving Illinois, where he has spent his entire life and has family. Further, as the circuit court
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2024 IL App (2d) 230496-Ureasonably determined, the funds defendant allegedly stole provided him the ability to access
resources to evade legal proceedings in Illinois or even the United States. Finally, defendant’s
claim that he lacks financial sophistication is belied by the facts that he had a business that grossed
over $2.5 million and allegedly stole $1.9 million from his aunt.
¶ 24 In sum, the circuit court did not err in finding that no conditions could mitigate defendant’s
real and present risk of willful flight.
¶ 25 III. CONCLUSION
¶ 26 For the reasons stated, we affirm the judgment of the circuit court of McHenry County.
¶ 27 Affirmed.
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