People v. Milner ( 2024 )

2024 IL App (1st) 241284FIFTH DIVISION
October 4, 2024
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
Nos. 1-24-1284B, 1-24-1285B, 1-24-1286B, & 1-24-1654B (cons.)
) Appeal from the
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of
) Cook County.
Plaintiff-Appellee, )
) No. 18 CR 1297101
v. ) No. 19 CR 0760001
) No. 19 CR 0908701
ANTHONY MILNER, ) No. 20 CR 0033501
)
Defendant-Appellant. ) Honorable
) Diana L. Kenworthy,
) Judge Presiding.
PRESIDING JUSTICE MIKVA delivered the judgment of the court, with opinion.
Justice Oden Johnson specially concurred, with opinion.
Justice Mitchell specially concurred, with opinion.
OPINION
¶1 The circuit court ordered defendant Anthony Milner detained pending trial, under the
dangerousness standard set out in section 110-6.1 of the Code of Criminal Procedure of 1963
(Code) (725 ILCS 5/110-6.1 (West 2022)), as amended by Public Act 101-652, § 10-255 (eff. Jan.
1, 2023), and Public Act 102-1104, § 70 (eff. Jan. 1, 2023), commonly known as the Pretrial
Fairness Act. Mr. Milner’s sole argument on appeal is that the State’s petitions for pretrial
detention should have been denied as untimely. We disagree and affirm the circuit court’s order.
Nos. 1-24-1284B, 1-24-1285B, 1-24-1286B, & 1-24-1654B (cons.)
¶2 I. BACKGROUND
¶3 Mr. Milner stands charged, personally or through a theory of accountability, with numerous
violent felonies and weapons charges, including first degree murder, attempted first degree murder,
aggravated battery, aggravated discharge of a firearm, and aggravated unlawful use of a weapon
in case Nos. 18 CR 12971, 19 CR 07600, 19 CR 09087, and 20 CR 00335. These charges arise
from four separate shootings that occurred during a four-month period in 2018. In these
consolidated appeals, Mr. Milner challenges a single pretrial detention order that was entered in
each of his four cases.
¶4 Mr. Milner was arrested prior to the amendments to section 110-6.1 that eliminated cash
bail in Illinois. Monetary bail was set in his case, but Mr. Milner was apparently unable to post
bond and has remained in custody since 2018. On October 10, 2023, following those amendments,
the circuit court granted Mr. Milner leave to represent himself, and he filed a pro se motion for
pretrial release in each of his pending cases. That motion was set to be heard on November 14,
2023.
¶5 On the date of the hearing, the State petitioned for Mr. Milner to be detained pretrial. It
argued, pursuant to section 110-6.1(a) of the Code (725 ILCS 5/110-6.1(a) (West 2022)), that (1)
Mr. Milner was charged with the detainable offenses of first degree murder (720 ILCS 5/9-1 (West
2018); 725 ILCS 110-6.1(a)(1.5) (West 2022)) in case Nos. 19 CR 09087 and 20 CR 00335 and
attempted first degree murder (720 ILCS 5/8-4, 9-1 (West 2018); 725 ILCS 5/110-6.1(a)(1), (7)
(West 2022)) in case Nos. 18 CR 12971 and 19 CR 07600; (2) he posed a real and present threat
to the community based on the specific articulable facts of the cases; and (3) there were no
conditions set forth in section 110-10(b) of the Code (725 ILCS 5/110-10(b) (West 2022)) that
could mitigate that risk.
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¶6 Mr. Milner represented himself at the November 14, 2023, hearing on the State’s petitions.
He argued that because the State had not filed a petition at his first court appearance, it was,
pursuant to section 110-6.1(c)(1) of the Code (id. § 110-6.1(c)(1)), “past the deadline of filing a
regular petition.” He argued that the State was limited to filing a second or subsequent petition,
under section 110-6.1(d)(2), to try to establish that new facts not known at the time of his bail
hearing required his continued detention. Id. § 110-6.1(d)(2).
¶7 The State argued that the timing requirements in section 110-6.1(c)(1) of the Code did not
apply to defendants, like Mr. Milner, who were already in custody when the Pretrial Fairness Act
amendments took effect. It pointed out that the amendments to section 110-7.5(b) of the Code (id.
§ 110-7.5(b)) specifically addressed individuals in custody and provided that they were entitled to
a hearing within 90 days of filing a motion for reconsideration of their pretrial detention or
conditions. Because Mr. Milner had received a hearing within that timeframe, the State argued
there was nothing untimely about its petitions. The circuit court agreed, and the parties proceeded
with the hearing.
¶8 The State proffered evidence supporting the charges in each of Mr. Milner’s four cases. On
appeal, Mr. Milner does not challenge the substantive merits of the State’s petitions or of the
evidence presented. The court concluded that the proof was evident and the presumption great that
Mr. Milner had committed the charged offenses, that he “posed a real and present threat to the
safety of people and the community,” and that there were “no conditions or combination of
conditions that [could] mitigate [that] real and present threat.” It noted that in a period of four
months, Mr. Milner was charged with shooting four people, killing two and seriously wounding
two others, offenses for which he faced life in prison.
¶9 The State’s evidence—which included the testimony of complaining witnesses, eyewitness
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identifications, video evidence, and identification by a detective who was familiar with Mr.
Milner—was, in the circuit court’s view, “fairly overwhelming.” The circuit court also took
judicial notice of a fifth case, in which Mr. Milner was charged with the aggravated battery of a
correctional officer while he was in custody. Consistent with its oral findings, the court entered a
detention order in each of Mr. Milner’s pending cases that same day. The court advised Mr. Milner
that he had the right to appeal that order within 14 days.
¶ 10 Mr. Milner did not appeal within 14 days. Instead, on May 22, 2024, he filed a “response”
in each of his cases to the State’s petitions for pretrial detention, as well as a motion for
reconsideration of the court’s detention order. The circuit court treated those filings as a request,
made pursuant to section 110-6.1(i-5) of the Code (id. § 110-6.1(i-5)), for a reevaluation of his
continued pretrial detention.
¶ 11 In his filings, and at the hearing held on May 29, 2024, Mr. Milner again argued that the
State’s petitions were untimely under section 110-6.1(c)(1) of the Code because they were not
filed at his first appearance before a judge. He maintained that section 110-6.1 of the Code,
pursuant to which the State may petition in the first instance for a criminal defendant’s pretrial
detention, simply did not apply to him because bail had “already been set with conditions prior to
the effective date of the Act.”
¶ 12 Noting that courts had “disagreed on when petitions can be filed,” the circuit court again
concluded that the State’s petitions were timely. The judge told Mr. Milner, “You can certainly
disagree and you can appeal it.”
¶ 13 The circuit court agreed with the State that continued detention was necessary. The court
again noted that Mr. Milner had five pending cases, with five separate victims, all involving violent
crimes. Electronic monitoring and home confinement, which “cannot prevent people from
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possessing weapons, from being out and about, [or] from threatening potential witnesses” were, in
the court’s view, “absolutely not appropriate,” given the fact that Mr. Milner “face[d] potentially
the rest of his life in prison” and was “alleged to have committed so many violent crimes in such
a short period of time.” The court entered a written order consistent with its findings the same day.
It advised Mr. Milner that, pursuant to a recent amendment to Illinois Supreme Court Rule 604(h)
(eff. Apr. 15, 2024), he could appeal the court’s ruling at any time prior to the disposition of his
case, so long as he first filed a motion for relief in the circuit court.
¶ 14 On June 7, 2024, Mr. Milner filed such a motion. He again argued that the State’s petitions
were untimely, and the circuit court again rejected that argument.
¶ 15 Mr. Milner now appeals.
¶ 16 II. JURISDICTION
¶ 17 On May 29, 2024, the circuit court considered whether Mr. Milner should continue to be
detained pretrial and entered an order concluding that he should. As a prerequisite to this appeal
(Ill. S. Ct. R. 604(h)(2) (eff. Apr. 15, 2024)), Mr. Milner first filed a motion for relief in the circuit
court. The circuit court denied that motion on June 7, 2024, and Mr. Milner filed pro se notices of
appeal from the court’s May 29, 2024, order the same day. We ordered the Office of the State
Appellate Defender to represent him and have consolidated those appeals. We have jurisdiction
under section 110-6.1(j) of the Code (725 ILCS 5/110-6.1(j) (West 2022)) and Illinois Supreme
Court Rule 604(h) (eff. Apr. 15, 2024), governing appeals from orders denying the pretrial release
of criminal defendants.
¶ 18 The State argues that we lack jurisdiction to consider Mr. Milner’s appeal, however,
because the issue he is appealing—the timeliness of the State’s petitions for pretrial detention—
was first decided by the circuit court on November 14, 2023. At that time, Rule 604(h) required a
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notice of appeal from a pretrial detention order to be filed within 14 days of the entry or denial of
the order. Ill. S. Ct. R. 604(h)(2) (eff. Oct. 19, 2023). The State’s position is that 14 days after the
circuit court entered its November 14, 2023, order detaining Mr. Milner pretrial we lost jurisdiction
to review any issue resolved by that order. Our review is limited, the State maintains, to the court’s
decision on May 29, 2024, that continued detention was appropriate under section 110-6.1(i-5) of
the Code (725 ILCS 5/110-6.1(i-5) (West 2022)).
¶ 19 In support of this argument, the State cites our decision in People v. Hongo, 2024 IL App
(1st) 232482. There, as here, the defendant did not file a notice of appeal from the circuit court’s
initial pretrial detention order within 14 days but filed a timely appeal from the court’s subsequent
order finding that continued detention was appropriate. Id. ¶ 26. We concluded that the issues the
defendant in that case sought to appeal—including the timeliness of the State’s petition—arose
from the circuit court’s initial pretrial detention order, which we had lost the ability to review. Id.
¶ 28. We reached the same conclusion in People v. Castle, 2024 IL App (1st) 240669-U, ¶¶ 19-21,
and People v. Cross, 2024 IL App (1st) 240616-U, also cited by the State.
¶ 20 Replies are not typically filed in appeals from pretrial detention orders but may be allowed
“by order of court for good cause shown.” Ill. S. Ct. R. 604(h)(7) (eff. Apr. 15, 2024). We allowed
Mr. Milner to file a reply to address the State’s jurisdictional argument. In that reply, Mr. Milner
notes that Rule 604(h) was amended on April 15, 2024, and now provides that an appeal may be
taken from a pretrial detention order “at any time prior to conviction.” Ill. S. Ct. R. 604(h)(3) (eff.
Apr. 15, 2024). He argues that because this amendment concerns a matter of procedure, it applies
retroactively, and therefore his appeal is timely even as to issues decided by the circuit court’s
November 14, 2023, order.
¶ 21 Retroactivity is a question we review de novo, employing the same analytical framework
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used to determine whether statutory amendments should be applied retroactively. People v. Easton,
2018 IL 122187, ¶¶ 13-14. In Illinois, section 4 of the Statute on Statutes (5 ILCS 70/4 (West
2022)) has been interpreted by our supreme court to provide that substantive changes apply
prospectively and procedural changes retroactively, so long as there are still “ongoing
proceedings” to apply them to. (Emphasis and internal quotation marks omitted.) People v. Hunter,
2017 IL 121306, ¶ 30.
¶ 22 Mr. Milner argues that because he filed his pro se notices of appeal on June 7, 2024, after
Rule 604(h) was amended, there were still ongoing proceedings that the amended rule could
retroactively apply to. He notes that the same was not true in the cases the State relies on. See
Hongo, 2024 IL App (1st) 232482, ¶ 14 (notice of appeal filed on December 19, 2023); Castle,
2024 IL App (1st) 240669-U, ¶ 12 (notice of appeal filed on March 18, 2024); Cross, 2024 IL App
(1st) 240616-U, ¶ 27 n.4 (date not specified, but noting that the notice of appeal was filed before
the amendments to Rule 604).
¶ 23 This argument presumes that the filing of a notice of appeal is merely procedural. We
acknowledge that courts have referred to the notice of appeal as a “procedural device.” Lake
County Grading Co. v. Forever Construction, Inc., 2017 IL App (2d) 160359, ¶ 34. But our
supreme court has distinguished between statutory time periods that merely fix the time within
which a remedy may be sought and those that confer jurisdiction, as the filing of a notice of appeal
plainly does. See Fredman Brothers Furniture Co. v. Department of Revenue, 109 Ill. 2d 202, 208-
09 (1985) (holding that the statutory requirement that a complaint for administrative review be
filed within 35 days was substantive in nature because it was necessary to convey jurisdiction on
the circuit court to hear the matter).
¶ 24 At least one panel of this court has concluded that the filing of a notice of appeal is
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procedural and that the new rule therefore applies retroactively if the defendant’s notice of appeal
was filed after the amendment’s effective date. See People v. Lasenby, 2024 IL App (1st)
240918-U, ¶ 26. But because the defendant in that case filed his notice of appeal before the
amendment took effect, the court had no need to consider whether retroactive application means
that we may go back and review an initial pretrial detention order even where subsequent hearings
have been held and subsequent detention orders entered. Under such circumstances, the initial
order may no longer represent the basis on which the defendant is being held. Given this
uncertainty, we are not inclined to decide this issue where, for the reasons below, we believe other
grounds for our jurisdiction exist.
¶ 25 Mr. Milner reintroduced his argument regarding the timeliness of the State’s petitions—in
his May 22, 2024, motion (and at the May 29, 2024, hearing on that motion) and in his June 7,
2024, motion for reconsideration—and the record reflects that, at both junctures, the circuit court
considered the argument anew, expressly incorporated its prior findings, and restated its ruling.
We held in People v. Triplett, 2024 IL App (2d) 230388, ¶ 11, that where the circuit court reaffirms
its prior ruling on the timeliness of the State’s petition in an order for continued pretrial detention,
that issue is reviewable on appeal from the latter order. See People v. Williams, 2024 IL App (1st)
240480-U, ¶¶ 26-27 (distinguishing Hongo and following Triplett). That is true here, and that is
the basis on which we find we have jurisdiction to consider these consolidated appeals and,
specifically, to consider Mr. Milner’s argument that the detention petitions filed by the State were
untimely.
¶ 26 III. ANALYSIS
¶ 27 Mr. Milner’s sole argument on appeal—that the State’s petitions for pretrial detention were
untimely—is a question of statutory interpretation that we review de novo. People v. Ramyyeh,
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2024 IL App (1st) 240299, ¶ 10. When interpreting a statute, our primary objective “is to ascertain
and give effect to the legislature’s intent,” looking to “the language of the statute, given its plain
and ordinary meaning” as “[t]he most reliable indicator” of that intent. People v. Newton, 2018 IL
122958, ¶ 14. If the language is clear, we “apply the statute as written without resort to other tools
of construction.” Jackson v. Board of Election Commissioners of Chicago, 2012 IL 111928, ¶ 48.
We presume, however, “that, in enacting the statute, the legislature did not intend to produce
absurd, inconvenient, or unjust results.” People v. Taylor, 2023 IL 128316, ¶ 45. Where a statute
is ambiguous, we “may consider the reason and necessity for the law, the evils it was intended to
remedy, and its ultimate aims.” (Internal quotation marks omitted.) Id.¶ 28 Here, subsection (c) of section 110-6.1 of the Code provides that a petition for pretrial
detention “may be filed without prior notice to the defendant at the first appearance before a judge”
or, upon reasonable notice, within 21 calendar days of the defendant’s arrest and release. 725 ILCS
5/110-6.1(c)(1) (West 2022). There is a split of authority regarding the correct interpretation of
this subsection where, as here, bail was set, the defendant remained in custody when the
amendments to the Code took effect, and the State petitioned for pretrial detention in response to
the defendant’s petition for pretrial release without conditions.
¶ 29 The State urges us to follow those decisions holding that detention petitions were timely
under such circumstances. That is the position this court took in People v. Whitmore, 2023 IL App
(1st) 231807. The defendant in that case, like Mr. Milner, had monetary bail set and was in custody
when the Pretrial Fairness Act amendments took effect. Id. ¶ 2. He petitioned to remove the
financial conditions of his pretrial release, prompting the State to request a pretrial detention
hearing. Id. The defendant in Whitmore argued both that section 110-6.1 of the Code, which
permits the State to petition for a defendant’s pretrial detention, did not apply to him and,
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alternatively, that the timing requirements of subsection (c) barred the State from filing an initial
petition for pretrial detention at that time. Id. ¶ 10.
¶ 30 The Whitmore court began by noting that section 110-7.5 of the Code distinguishes, in
subsections (a) and (b), between individuals who were released on bond before the Pretrial Fairness
Act amendments took effect and those for whom monetary bail had been set but who remained in
custody. That section provides:
“(a) On or after [the effective date], any person having been previously released
pretrial on the condition of the deposit of security shall be allowed to remain on pretrial
release under the terms of their original bail bond. This Section shall not limit the State’s
Attorney’s ability to file a verified petition for detention under Section 110-6.1 or a petition
for revocation or sanctions under Section 110-6.
(b) On or after [the effective date], any person who remains in pretrial detention
after having been ordered released with pretrial conditions, including the condition of
depositing security, shall be entitled to a hearing under subsection (e) of Section 110-5.”
725 ILCS 5/110-7.5 (West 2022).
Subsection (e) of section 110-5 requires, under certain circumstances, for the circuit court to
“reopen the conditions of release hearing.” Id. § 110-5(e). The defendant in Whitmore argued that
the circuit court therefore could do no more than reconsider the limitations of his pretrial release.
Whitmore, 2023 IL App (1st) 231807, ¶ 7.
¶ 31 The Whitmore court rejected that argument, relying on the imperative in subsection (a) of
section 110-7.5 that “ ‘[t]his Section shall not limit the State’s Attorney’s ability to file a verified
petition for detention.’ ” Id. ¶ 7 (quoting 725 ILCS 5/110-7.5(a) (West 2022)). Noting that the
statute “clearly distinguishes between ‘subsections’ and ‘sections,’ ” the court concluded that the
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word “Section” as used in subsection (a) referred to all of section 110-7.5, including both
subsection (a), addressing individuals had been released on bond, and subsection (b), addressing
individuals for whom bond had been set but who remained in custody. Id. ¶ 8. The court concluded,
therefore, that the State’s ability to petition for pretrial detention was not limited in either case. Id.
¶ 32 The Whitmore court then considered the defendant’s alternative argument, made here by
Mr. Milner, that the State was barred by a plain reading of the timing requirement in subsection
(c) of section 110-6.1 of the Code from filing a petition for his pretrial detention. The defendant in
Whitmore argued that the State could not file a petition at the defendant’s “first appearance before
a judge” because that had occurred long before the Pretrial Fairness Act took effect, and it could
not file one within 21 days of his arrest and release because he had not yet been released. (Internal
quotation marks omitted.) Id. ¶ 10. The Whitmore court considered and rejected the reasoning
employed by other courts that had found the State’s petitions timely under similar circumstances.
It found “quite expansive,” for example, the suggestion in People v. Haisley, 2024 IL App (1st)
232163, ¶¶ 21-22, that the State could file a detention petition on reasonable notice even before
the 21-day period following release had begun to run. Whitmore, 2023 IL App (1st) 231807, ¶ 13.
And it likewise rejected the court’s suggestion in People v. Jones, 2023 IL App (4th) 230837,
¶¶ 12-16, that the State could file a detention petition under section 110-6(g) of the Code, which
permits increased pretrial conditions, because a motion to deny release “ ‘operates as a motion to
increase the pretrial release conditions to the furthest extent.’ ” Whitmore, 2023 IL App (1st)
231807, ¶ 13 (quoting Jones, 2023 IL App (4th) 230837, ¶ 17). ¶ 14. That reasoning, the Whitmore
court concluded, was “in tension with the Code’s language suggesting that section 110-6.1 is the
method by which a court may detain a defendant.” Id. ¶ 14.
¶ 33 The Whitmore court instead concluded that the only way “[t]o give meaning to all the
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provisions in the Code” was to read subsection (c) of section 110-6.1 as allowing the State to
petition to detain defendants who were ordered released on bond prior to the effective date of the
Pretrial Fairness Act. Id. ¶ 15. The court held, then, that
“for individuals detained prior to the effective date of the Act who elect to seek relief under
the amended Code—and only for such individuals—the State may file a petition for the
denial of pretrial release ‘at the first appearance before a judge’ after the effective date of
the Act.” (Emphasis added.) Id. (quoting 725 ILCS 5/110-6.1(c)(1) (West 2022)).
The defendant in Whitmore had moved for relief from the financial conditions of his release, and
the hearing on that motion was “his first appearance before a judge since the Act became
effective.” Id. ¶ 16. The State filed its petition that same day, to be heard at the same hearing, and
the petition was therefore timely. Id.
¶ 34 Building on the holding in Whitmore, the court in People v. McDonald, 2024 IL App (1st)
232414, ¶ 28, recently considered a slightly different set of circumstances—where the State also
petitioned for pretrial detention in response to the defendant’s petition for pretrial release under
the Pretrial Fairness Act, but where it did not do so at the defendant’s very first appearance
following the Act’s effective date. The defendant in McDonald filed his petition for pretrial release
on October 17, 2023. Id. That was his first appearance before a judge following the effective date
of the amended statute. Id. The hearing was continued, however, until November 1, 2023 (14 days
later), and it was not until this second appearance before the court following the effective date of
the amended statute that the State filed its petition for pretrial detention. Id. Extending the analysis
in Whitmore, the McDonald court concluded that the State’s detention petition was timely. Id. By
petitioning for pretrial release, the defendant had “opened the door to proceedings dictated by the
amended statute, including the State’s ability to file a pretrial detention petition in response.” Id.12
Nos. 1-24-1284B, 1-24-1285B, 1-24-1286B, & 1-24-1654B (cons.)
In the court’s view, a defendant should not be able to avail himself of the benefit of the amended
statute without also subjecting himself to the procedures it dictated. Id.; see also People v. Watson,
2024 IL App (1st) 240207-U, ¶¶ 28-43 (Tailor, J., dissenting) (following McDonald).
¶ 35 A number of other panels of this court have concluded, like the Whitmore court, that the
timing requirements in subsection (c) of section 110-6.1 of the Code do not prevent the State from
filing a petition for the pretrial detention of an individual previously ordered released on monetary
bail but who remained in custody when the Pretrial Fairness Act took effect. See People v. Keys,
2024 IL App (1st) 231880-U, ¶¶ 6-9 (collecting cases and noting that “[a]s appellate decisions
from bail determinations under the new Act proliferate, a consensus is building” on this issue).
Others have gone on to follow the McDonald court’s further refinement of the holding in
Whitmore. See, e.g., People v. Common, 2024 IL App (1st) 240336-U, ¶ 18.
¶ 36 Mr. Milner urges us instead to follow two cases—People v. Brown, 2023 IL App (1st)
231890, and People v. Watkins-Romaine, 2024 IL App (1st) 232479, appeal allowed, No. 130618
(Ill. June 18, 2024)—that take a far narrower view of the steps the State may take with respect to
individuals like Mr. Milner. In both of those cases, panels of this court rejected the reasoning
adopted by the decisions cited above as contrary to the plain language of the timing requirement
in subsection (c) of section 110-6.1. Watkin-Romaine, 2024 IL App (1st) 232479, ¶ 37; Brown,
2023 IL App (1st) 231890, ¶ 20.
¶ 37 We are likely soon to have guidance on this issue, as our supreme court heard argument in
Watkins-Romaine on September 10, 2024. We believe, however, that the answer to the question
presented by this appeal is far simpler than either the parties’ arguments or these cases imply.
Section 110-7.5(b) of the Code squarely addresses individuals, like Mr. Milner, who were ordered
released on bond but remained in custody when the Pretrial Fairness Act amendments took effect.
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725 ILCS 5/110-7.5(b) (West 2022). It plainly states that such individuals “shall be entitled to a
hearing under subsection (e) of Section 110-5.” Id. That subsection in turn provides that the circuit
court “shall hold a hearing to determine the reason for continued detention” and, “[i]f the reason
for continued detention is due to the unavailability or the defendant’s ineligibility for one or more
pretrial conditions previously ordered by the court or directed by a pretrial services agency,” the
court “shall reopen the conditions of release hearing.” (Emphasis added.) Id. § 110-5(e).
Subsection (a) of section 110-5, which must be read in conjunction with subsection (e), sets forth
factors the court should consider when deciding “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.” (Emphasis added.) Id. § 110-5(a). The words “if any” make clear that one possible result
of such a hearing is that the court may conclude there are no appropriate conditions of release. See
id.
¶ 38 Nothing in section 110-5 of the Code forbids the State from arguing that no presently
available conditions will reasonably ensure the three outcomes the court must consider. Nor does
anything in that section require the State to stand mute during a reopened hearing on conditions of
release. And, notably, section 110-5 contains no limitation on the time within which the State may
make such an argument. Section 110-6.1(c)(1) sets forth the two time periods in which the State
may initiate proceedings under the Pretrial Fairness Act by filing a pretrial detention petition either
with or without notice to the defendant. Id. § 110-6.1(c)(1). But under sections 110-7.5(b) and 110-
5(e), it is not the State but the defendant who has initiated proceedings under the Pretrial Fairness
Act. The specific time limits under section 110-6.1(c)(1) that dictate the times the State may initiate
detention are simply not applicable.
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¶ 39 That said, we do believe the appropriate mechanism for the State to argue that no conditions
of pretrial release are adequate in a reopened hearing on the conditions of release is a verified
petition for pretrial detention made under section 110-6.1 of the Code. The Pretrial Fairness Act
amendments are founded on the presumption that every criminal defendant is entitled to pretrial
release (id. § 110-2(a)), and it is the State’s burden to prove by clear and convincing evidence that
pretrial release should be denied (id. §§ 110-2(c), (e); 110-6.1(e)). The Pretrial Fairness Act makes
clear that pretrial release may be denied “only if” the conditions in section 110-6.1 are met (id.
§ 110-6.1(a)) and that section is where the contents of the State’s petition, the factors the court
must consider, and the contents of the court’s pretrial detention order are all set out (id. § 110-
6.1(d), (f)-(h)).
¶ 40 Here, it was Mr. Milner, and not the State, who initiated proceedings under the Pretrial
Fairness Act by requesting, pursuant to section 110-5(e) of the Code (id. § 110-5(e)), a reopening
of the hearing on his conditions of pretrial release. Because section 110-5(a) of the Code
specifically contemplates that one possible result of such a hearing is a finding that no pretrial
conditions will reasonably ensure the defendant’s appearance in court, the safety of individuals or
the community, or the defendant’s compliance with all conditions of release, we hold that the
State’s petition for Mr. Milner’s pretrial detention was not barred as untimely by section 110-
6.1(c).
¶ 41 IV. CONCLUSION
¶ 42 For the above reasons, we affirm the circuit court’s order detaining Mr. Milner pending
trial. Our mandate, which normally issues within five days in appeals from pretrial detention orders
(Ill. S. Ct. R. 613(d) (eff. Apr. 15, 2024)), is stayed, pursuant to Rule 368(c) (Ill. S. Ct. R. 368(c)
(eff. Oct. 1, 2020)), until the time for Mr. Milner to seek review by our supreme court expires or,
15
Nos. 1-24-1284B, 1-24-1285B, 1-24-1286B, & 1-24-1654B (cons.)
if review is timely sought and granted, until final disposition of the appeal by that court.
¶ 43 Affirmed.
¶ 44 JUSTICE ODEN JOHNSON, specially concurring:
¶ 45 I agree with my colleagues that the State can respond to defendant’s petition, for the reasons
already stated in this court’s opinion in People v. McDonald, 2024 IL App (1st) 232414.
Supra ¶ 34. However, I respectfully disagree with the suggestion in the special concurrence that
we are somehow employing an “ ‘opening the door’ ” analysis (infra ¶ 47 (Mitchell, J.,
concurring)). The State has a right to respond.
¶ 46 JUSTICE MITCHELL, specially concurring dubitante.
¶ 47 I agree with my colleagues that the State can bring a petition to detain under the
circumstances presented here: where a defendant in custody pursuant to a bail determination under
the old law seeks to have the conditions of his pretrial release reconsidered under the new law. In
People v. Whitmore, 2023 IL App (1st) 231807, we reached this conclusion based on our analysis
of the text and structure of the statute. However, I cannot say that the majority is wrong in
employing a different rationale, which ties the State’s ability to petition to detain to a defendant
seeking reconsideration of a prior conditions determination. But in future cases, this “opening the
door” analysis could undermine the timing limitations in the statute by allowing a belated petition
to detain anytime a defendant seeks to reconsider a prior conditions determination. I have doubts
about such an approach.
16
Nos. 1-24-1284B, 1-24-1285B, 1-24-1286B, & 1-24-1654B (cons.)
People v. Milner, 2024 IL App (1st) 241284Decision Under Review: Appeal from the Circuit Court of Cook County, Nos. 18-CR-
1297101, 19-CR-0760001, 19-CR-0908701; the Hon. Diana L.
Kenworthy, Judge presiding.
Attorneys James E. Chadd, Carolyn R. Klarquist, and Benjamin Wimmer,
for of State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Andre L.
for Milton, Assistant State’s Attorney, of counsel), for the People.
Appellee:
17