People v. Ervin , 2024 IL App (2d) 240489-U ( 2024 )

2024 IL App (2d) 240489-UNo. 2-24-0489
Order filed October 16, 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 Kendall County.
)
Plaintiff-Appellee, )
)
v. ) No. 24-CF-247
)
ANTONIO M. ERVIN, ) Honorable
) Jody Patton Gleason,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court.
Presiding Justice McLaren and Justice Birkett concurred in the judgment.
ORDER
¶1 Held: Circuit court’s denial of pretrial release did not constitute an abuse of discretion,
where it reasonably determined that the proof was evident and the presumption
great that defendant committed a detainable offense and that no set of conditions
could mitigate the threat defendant posed to the community. Affirmed.
¶2 Defendant, Antonio M. Ervin, appeals from the denial of pretrial release under article 110
of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/art. 110 (West 2022)), as amended
by Public Act 101-652 (eff. Jan. 1, 2023). See Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023)
(amending various provisions of Public Act 101-652 (eff. Jan. 1, 2023)). We affirm.
¶3 I. BACKGROUND
2024 IL App (2d) 240489-U¶4 On August 7, 2024, the State charged defendant by information with unlawful possession
of a controlled substance with intent to deliver 100 grams or more but less than 400 grams of
cocaine (720 ILCS 570/401(a)(2)(B) (West 2022) (Class X)), unlawful possession of a controlled
substance (id. § 570/402(a)(2)(B) (Class 1)), unlawful possession of a weapon by a felon (id. §
5/24.1-1(a) (Class 3)), and possession of a firearm without a Firearm Owner’s Identification Card
(430 ILCS 65/2(a)(1), 14(c)(3) (West 2022) (Class 3)). On August 8, 2024, the State petitioned to
deny defendant pretrial release, arguing that defendant was charged with a felony and his pretrial
release posed a real and present threat to the safety of any person or the community. 725 ILCS
5/110-6.1(a)(1), (6) (West 2022). Also, the State referenced defendant’s criminal history and that
defendant had pending charges in Kane County (case No. 24-CF-1150) for unlawful possession of
a controlled substance and driving under the influence (DUI) and scored an 8 (out of 14) on a risk
assessment instrument. The State also argued that defendant posed a risk of not appearing in court.
¶5 The State attached to its petition the police synopsis, which related as follows. On August
7, 2024, at about 7:37 p.m., an Aurora police special operations group executed a search warrant
at the residence at 2930 Heather Lane in Montgomery. (Defendant had been arrested prior to
execution of the warrant during a traffic stop after leaving the residence.) During the search of the
residence, police found in three bags in a cupboard of a basement bar 320.2 grams of a substance
that field-tested positive for cocaine. The street value of the suspected cocaine was $32,000. Also
found in the cupboard were two boxes of plastic sandwich baggies (one of which was opened),
two working digital scales (one of which had white residue that field-tested positive for cocaine),
and a glass measuring cup and a plastic cup (both with white residue that field-tested positive for
cocaine). A sign on top of the bar read “Antonio’s bar.” In a room adjacent to the basement bar
area, police found an Olympic Arms MFR rifle and a Magpul PMag 30 magazine with five 5.56
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2024 IL App (2d) 240489-Urounds of ammunition. In the upstairs master bedroom closet, police found a FN Five-Seven
5.7x28 handgun and a Pro Mag magazine with 33 rounds of 5.7x28 ammunition. Police collected
$6272 in United States currency from a box in the upstairs master bedroom closet, along with a
traffic citation written to defendant at the residence and tax documentation for him. On the kitchen
counter, police found a Village of Montgomery utility bill addressed to defendant at the residence.
¶6 Vito McIntee, defendant’s father, arrived during the search and agreed to speak to police.
He lives with defendant at the residence in the basement bedroom. McIntee never observed
firearms or drugs, besides cannabis, in the house. Nor did he know defendant to have any firearms
or drugs. McIntee stated that defendant had been to prison for drugs in the past but thought he had
been done with dealing drugs.
¶7 The State also attached as an exhibit to its petition a pretrial services investigation report.
It related that defendant is not married and has a one-year-old child who resides with him at the
residence. He does not have family living in the Kendall County area. He will drive himself to
future court dates, and records reflected that he had a valid driver’s license. Defendant reported
that he was employed with AME Trucking LLC, and his annual income is $100,000. Defendant
had a pending case in Kane County for possession of a controlled substance (other drug-any
amount), DUI (alcohol), and DUI (BAC .08 or more).
¶8 Defendant’s criminal history includes, among others, convictions for: manufacture/deliver
controlled substance-cocaine (2015; 10 years’ imprisonment); three drug-possession offenses
(2010, 2009, and 2007; 30 months’, 72 months’, and 24 months’ imprisonment); and aggravated
battery/harm/peace officer (two in 2008; 3 years’ imprisonment in each). A pretrial risk
assessment identified defendant’s level of risk of pretrial misconduct as moderate. The pretrial
report also noted that, based on a review of defendant’s criminal history, defendant missed at least
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2024 IL App (2d) 240489-Uone previous court date where a warrant was issued. Pretrial services recommended that defendant
be released with pretrial supervision and that the court consider ordering that defendant be placed
on GPS monitoring.
¶9 Also included as exhibits to the State’s petition were photographs of the items in the
cupboard, the FN Five-Seven handgun, and the currency, along with a copy of the search warrant.
The warrant complaint and affidavit related that, in May 2024, police learned from a confidential
informant that defendant was selling cocaine. The informant made three controlled purchases of
cocaine from defendant. The informant met defendant in a parking lot and entered a black GMC
Sierra (which defendant had driven from his residence) to purchase the cocaine, after which the
Sierra drove to defendant’s residence and defendant exited the vehicle and entered the residence.
¶ 10 On August 9, 2024, the circuit court granted the State’s petition. The court noted that,
based on the police synopsis, pretrial services report, search warrant, and photographs, the State
had proved by clear and convincing evidence that the proof was evident and presumption great
that defendant committed a detainable offense. It also found that defendant posed a real and
present threat to the community, based on evidence that: he was in possession of drugs,
ammunition, and firearms; was selling drugs; committed a felony while on release from Kane
County; and sold cocaine to a confidential informant three times prior to his arrest. The court also
noted that defendant was not allowed to have guns in his home. Finally, the court found that less
restrictive conditions would not assure the safety of the community and assure defendant’s
appearance in court. It noted that defendant was on release from Kane County when he allegedly
committed the present offenses, and he has a history of drug possession or manufacturing and
delivering a controlled substance; release “does not appear to prevent him from doing the same
behavior.” He was also allegedly selling/packaging cocaine from his residence. No conditions
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2024 IL App (2d) 240489-Ucould prevent his behavior. The court also determined that GPS monitoring, which would only
inform police if defendant was in his home, would not prevent any illegal activity within the home;
the three controlled buys, as noted in the search warrant application, occurred after defendant left
his house to travel to the location where the buys took place. It also noted that the courts do not
have the resources to monitor defendant “24/7.”
¶ 11 On August 16, 2024, defendant filed a motion for relief. Ill. S. Ct. R. 604(h)(2) (eff. April
15, 2024). Addressing the evidence concerning the cocaine, defendant noted that it stemmed from
controlled buys by a confidential informant and the discovery of cocaine in his residence pursuant
to the search warrant. The cocaine seized from his residence was in a common area of the property
where he resides with an additional adult, he asserted. Further, the weapons, which were found in
the house during the search, included one that was seized from a common area. Next, addressing
his employment, defendant noted that he is responsible for the daily business operations of his
company (he is the principal owner), including billing and payroll matters, and can engage in those
activities from his home. He is responsible for four employees, as well as subcontractors, who
depend on him for their livelihoods. Defendant also noted that he responsible for the financial
needs of his 14-month-old son, with whom he shares physical custody with the child’s mother.
The two parties co-parent by equally dividing parenting time.
¶ 12 Next, addressing conditions that could mitigate the risk that his pretrial release would pose,
defendant sought “house arrest,” specifically GPS monitoring with movement allowed only for
purposes of attending court appearances, meeting with his attorneys, and meeting with pretrial
services. Defendant noted that he has an in-house security system that includes video surveillance
of the property (cameras covering the back yard and front of the garage, plus a doorbell camera),
and he noted that he would give police unrestricted access to such surveillance were he placed on
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2024 IL App (2d) 240489-Uhome confinement. He also noted that he was willing to add additional surveillance equipment to
be allowed to return to his property. Defendant contended that he would allow police to access his
property to conduct a search to ensure no contraband was in the home at that time and directly
prior to his return to the residence. He argued that the foregoing measures would alleviate any
concerns of ongoing criminal enterprise by him at his property.
¶ 13 On August 19, 2024, the circuit court denied defendant’s motion. Granting police access
to search defendant’s house or to review security videos, the court found, would not prevent
defendant from selling drugs from the residence. The sheriff’s office, it noted, did not have the
resources to constantly monitor defendant. Addressing defendant’s child, the court found that
residing in defendant’s home was dangerous for the child, as the cocaine located in the home was
not secured in a safe, for example, and the weapon found in the master bedroom closet with a
magazine with 33 rounds of ammunition was not in a locked safe. Defendant could have someone
else run his trucking business, the court suggested. The court determined that there was no
combination of conditions that could alleviate the necessity to detain defendant.
¶ 14 On August 27, 2024, defendant filed a notice of appeal. The Office of the State Appellate
Defender declined to file a memorandum pursuant to Illinois Supreme Court Rule 604(h)(7) (eff.
April 15, 2024). The State has submitted a memorandum opposing defendant’s appeal.
¶ 15 II. ANALYSIS
¶ 16 Pretrial release is governed by article 110 of the Code. 725 ILCS 5/110 (West 2022).
Under the Code, as amended, all persons charged with an offense are eligible for pretrial release,
and a defendant’s pretrial release may only be denied in certain statutorily limited situations. Id.§§ 110-2(a), 110-6.1(e). As relevant here, upon filing a verified petition requesting denial of
pretrial release, the State has the burden to prove by clear and convincing evidence that the proof
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2024 IL App (2d) 240489-Uis evident or the presumption great that the defendant has committed a detainable offense (id.
§ 110-6.1(e)(1)), that the defendant’s pretrial release poses a real and present threat to the safety
of any person or the community (id. § 110-6.1(e)(2)), and that no condition or combination of
conditions can mitigate that risk (id. § 110-6.1(e)(3)). “Evidence is clear and convincing if it
leaves no reasonable doubt in the mind of the trier of fact as to the truth of the proposition in
question.” Chaudhary v. Department of Human Services, 2023 IL 127712, ¶ 74.
¶ 17 We review defendant’s arguments under a bifurcated standard of review: the court’s factual
determinations are reviewed to determine whether they are against the manifest weight of the
evidence, and the court’s ultimate determination regarding denial of pretrial release is reviewed
for an abuse of discretion. People v. Trottier, 2023 IL App (2d) 230317, ¶ 13. An abuse of
discretion occurs when the court’s decision is unreasonable. Id. Likewise, a decision is against
the manifest weight of the evidence where the court’s determination is unreasonable. Id.¶ 18 Defendant, at best, raised two arguments in his motion for relief. First, he argued that the
State did not establish that the proof was evident and the presumption great that he committed a
detainable offense. Second, he argued that the State did not show that no condition or combination
thereof could mitigate the risk that his pretrial release would pose.
¶ 19 As to the first argument, defendant notes that the cocaine and one of the weapons seized
from his residence were in a common area of the property where he resides with an additional
adult. The circuit court noted that it based its finding that defendant committed a detainable
offense on the police synopsis, pretrial services report, search warrant, and photographs taken
during the search. These are proper sources from which to base its findings. For example, a police
synopsis constitutes reliable information upon which the State may rely in making its proffer and,
further, that synopsis alone may suffice to sustain the State’s burden. See, e.g., 725 ILCS 5/110-
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2024 IL App (2d) 240489-U6.1(f)(2) (West 2022); People v. Horne, 2023 IL App (2d) 230382, ¶ 24. The synopsis related that
police found a handgun and magazine with 33 rounds of ammunition in the upstairs master
bedroom closet and a traffic citation written to defendant. The court reasonably found that
defendant used the master bedroom and that the weapon was his. From this, the search warrant
and the pretrial services report (which related that defendant had a pending case for possession of
a controlled substance), the court also reasonably determined that the other weapon and the drugs
and related paraphernalia belonged to defendant.
¶ 20 Next, turning to his primary contention, defendant argues that the State did not establish
that no conditions of release would mitigate the threat he posed. He asserts that any potential
danger could be mitigated by GPS monitoring, his in-house security system (to which he would
agree to unrestricted access by police), additional surveillance equipment, and police access to his
property to conduct a search to ensure no contraband was in the home directly prior to his return
to the residence. Where the circuit court finds that the State proved a valid threat to the safety of
any person or the community, the court must determine which pretrial release conditions, “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.” 725 ILCS 5/110-5(a)(1)-(6) (West 2022). In reaching its determination, the
circuit court must consider: (1) the nature and circumstances of the offense charged; (2) the weight
of the evidence against the defendant; (3) the history and characteristics of the defendant; and (4)
the seriousness of the threat the defendant poses to any person or the community. Id. We conclude
that the circuit court did not err in finding that there was no combination of conditions that could
alleviate the necessity to detain defendant. The court reasonably determined that the courts and
police lack resources to constantly monitor a defendant who is on GPS monitoring for conducting
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2024 IL App (2d) 240489-Udrug-related activities from his home. Further, when defendant was charged in this case, he had
pending charges in Kane County for unlawful possession of a controlled substance and DUI (and
was on pretrial release for such), along with a history of drug-related convictions. The alleged
activities here involved a large amount of cocaine, evidence of the sale of cocaine (including three
controlled buys and drug paraphernalia in his home that tested positive for cocaine), and illegal
possession of firearms. This evidence reasonably reflected defendant’s disregard for court orders
and that no condition or combination thereof, including GPS monitoring, would mitigate the threat
defendant posed to community safety.
¶ 21 In summary, the circuit court did not abuse its discretion in granting the State’s petition to
deny defendant pretrial release.
¶ 22 III. CONCLUSION
¶ 23 For the reasons stated, we affirm the judgment of the circuit court of Kendall County.
¶ 24 Affirmed.
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