People v. Green ( 2024 )

2024 IL App (1st) 240211No. 1-24-0211B
Second Division
April 11, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
____________________________________________________________________________
) Appeal from the
THE PEOPLE OF THE STATE OF ) Circuit Court of
ILLINOIS, ) Cook County.
)
Plaintiff-Appellee, )
) No. 22600126901
v. )
)
OSONIA GREEN, ) Honorable
) Vincenzo Chimera
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court, with opinion.
Justices McBride and Ellis concurred in the judgment and opinion.
OPINION
¶1 Defendant Osonia Green appeals the order of the circuit court revoking his pretrial release
pursuant to article 110 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/110 et seq.)
(West 2022)), commonly known as the Pretrial Fairness Act. Among other things, defendant
argues that the court erred in detaining him where the State did not prove that less restrictive means
such as electronic monitoring were insufficient to prevent him from being charged with subsequent
offenses. For the reasons that follow, we affirm.
No. 1-24-0211B
¶2 I. BACKGROUND
¶3 On March 3, 2022, defendant was arrested for endangering the life or health of a child, a
Class A misdemeanor. 720 ILCS 5/12C-5(a)(1), (d) (West 2022). The charges generally alleged
that defendant left a loaded handgun where it was accessible to his three-year-old son. While
defendant was “intoxicated on the floor,” the child got a hold of the gun and shot himself in the
foot. Defendant was released on a recognizance bond.
¶4 On January 11, 2024, while still on release for the child endangerment case, defendant was
arrested on new charges based on an incident at the Beverly Motel in Chicago. On that date, police
responded to a call of a domestic disturbance at the motel and made contact with the complaining
witness, who told them that defendant would not allow her to leave their motel room. Officers
asked defendant if he had any firearms on him, and he told them that he did not. Officers also
asked defendant if there were any firearms in the room, and defendant again told them that there
were not. However, the officers noticed an “L-shaped bulge” in defendant’s waistband, which a
protective pat down revealed to be a loaded 9mm handgun. Defendant had not been issued a valid
Firearm Owners Identification Card or Concealed Carry License. During the pat down, police also
discovered on defendant’s person containers of suspect heroin and suspect crack cocaine, as well
as a glass pipe. Based on this evidence, defendant was charged with armed violence (720 ILCS
5/33A-2(a) (West 2022)) (a Class X felony), possession of less than 15 grams of heroin and less
than 15 grams of cocaine (720 ILCS 570/402(c) (West 2022)) (both Class 4 felonies), and
possession of drug paraphernalia (720 ILCS 600/3.5(a) (West 2022)) (a Class A misdemeanor).
¶5 The next day, January 12, 2024, the State filed a petition to revoke defendant’s pretrial
release based on the new charges. The circuit court held a hearing on the State’s petition on January
17, 2024. At the hearing, the State contended that defendant’s release should be revoked because
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no condition or combination of conditions would reasonably prevent him from being charged with
a subsequent felony or Class A misdemeanor. Defendant argued that he should not be detained
because “less restrictive means” such as electronic monitoring would reasonably prevent him from
committing subsequent offenses.
¶6 The court granted the State’s motion to revoke pretrial release, finding that “there is clear
and convincing evidence that no condition or combination of conditions of release would
reasonably prevent the defendant from being charged with a subsequent felony or misdemeanor.”
The court stated that it based this finding in part on the fact that both cases involved firearms,
reasoning that “[e]ven if I were to give [defendant] electronic monitoring that would not prevent
him from getting another gun.”
¶7 This appeal followed.
¶8 II. ANALYSIS
¶9 At the outset, we note that defendant has opted not to file a memorandum on appeal.
Instead, defendant stands on the issues raised in his notice of appeal, which identifies four sources
of error.
¶ 10 First, defendant has checked the box on the preprinted notice of appeal form indicating that
he was “denied an opportunity for a fair hearing prior to the entry of the order denying or revoking
pretrial release.” In the space provided below, defendant has written, in its entirety, that, “The
petition was filed on 01/12/2024 and the hearing was scheduled for 01/16/2024 which is after the
72 hour time frame that the petition [sic] must be held. The hearing was not held until 01/17/2024.”
¶ 11 The Code provides that, upon the State’s petition to revoke a defendant’s pretrial release,
“[t]he defendant shall be transferred to the court before which the previous matter is pending
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without unnecessary delay, and the revocation hearing shall occur within 72 hours of the filing of
the State’s petition[.]” (Emphasis added.) 725 ILCS 5/110-2(a) (West 2022).
¶ 12 In this case, the State’s petition was filed on Friday, January 12, 2024, meaning that the
hearing would normally have needed to be held no later than Monday, January 15, 2024. However,
because that day was a court holiday in observance of Martin Luther King, Jr. Day, the deadline
was extended to the next business day, January 16, 2024. See Cook County Special Order 2023-
101 (eff. Aug. 9, 2023), https://www.cookcountycourt.org/ABOUT-THE-COURT/Legal-Court-
Holidays. The record reflects that the hearing was indeed originally scheduled for January 16,
2024, but was then held on call because Judge Chimera was not at the courthouse that day. Thus,
the hearing did not occur until January 17, 2024, one day late.
¶ 13 With that established, the question remains as to what relief, if any, defendant is entitled.
See People v. Robinson, 217 Ill. 2d 43, 51 (2005) (“[T]here is no dispute that ‘shall’ means shall,
and therefore the clerk failed to do something that was obligatory. The issue is the consequence of
the clerk’s failure.” (emphasis in original)); People v. Geiler, 2016 IL 119095, ¶ 12 (“there is no
dispute that the 48–hour requirement in Rule 552 [requiring an arresting officer to transmit
portions of a ticket to the circuit court clerk within 48 hours after an arrest] was violated in this
case. Rather, the issue is the appropriate consequence for the Rule 552 violation.”).
¶ 14 In his notice of appeal, defendant simply requests relief in the form of “Release from
Custody.” The State responds that defendant is not entitled to any relief because he failed to offer
any argument or authority for his request of release.
¶ 15 We agree with the State that defendant has provided an insufficient legal basis on which
grant the requested relief. Defendant appealed the circuit court’s order pursuant to Illinois Supreme
Court Rule 604(h)(2) (eff. Sept. 18, 2023), which provides that a notice of appeal “shall describe
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the relief requested and the grounds for the relief requested.” Id. ¶ 24. Consequently, “[w]e have
repeatedly admonished litigants that this court is not a depository into which the parties may dump
the burden of argument and research.” People v. Woods, 2024 IL App (3d) 230592, ¶ 31. The brief
description in defendant’s notice of appeal merely explains that the hearing on the State’s petition
was untimely, but falls well short of explaining why such an error warrants reversal of the circuit
court’s order.
¶ 16 In addition, even if we were to reach the merits of defendant’s claim, such a claim would
fail. As set forth above, the statute provides that when a defendant has previously been granted
pretrial release, that pretrial release may be revoked if the defendant is charged with a felony or
Class A misdemeanor that is alleged to have occurred during the defendant’s pretrial release, after
a hearing on the court’s own motion or upon the filing of a verified petition by the State. 725 ILCS
5/110-6(a) (West 2022). The statute further provides that the defendant “shall be transferred to the
court before which the previous matter is pending without unnecessary delay,” and the revocation
hearing “shall occur within 72 hours of the filing of the State's petition or the court's motion for
revocation.” Id.¶ 17 Defendant’s challenge requires us to determine whether the 72-hour statutory requirement
is mandatory or directory. See Robinson, 217 Ill. 2d at 51–52 (“the ‘directory’ or ‘mandatory’
designation *** simply denotes whether the failure to comply with a particular procedural step
will or will not have the effect of invalidating the governmental action to which the procedural
requirement relates.”). Whether a statutory command is mandatory or directory presents a question
of statutory construction, which we review de novo. In re M.I., 2013 IL 113776, ¶ 15. When
construing a statute, our primary objective is to ascertain and give effect to legislative intent, the
surest and most reliable indicator of which is the statutory language itself, given its plain and
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ordinary meaning. Id. In determining the plain meaning of statutory terms, we consider the statute
in its entirety, keeping in mind the subject it addresses and the apparent intent of the legislature in
enacting it. Id.¶ 18 We presume that language issuing a procedural command to a government official
indicates an intent that the statute is directory. In re M.I., 2013 IL 113776, ¶ 17. The presumption
is overcome, and a provision will be read as mandatory, under either of two conditions: (1) when
there is negative language prohibiting further action in the case of noncompliance or (2) when the
right the provision is designed to protect would generally be injured under a directory reading. Id.¶ 19 As set forth above, the very limited arguments in defendant’s notice of appeal made no
specific contention that 725 ILCS 5/110-6(a) should be read to impose a mandatory obligation
under either of the above conditions. However, based on our review, we conclude that neither
condition applies.
¶ 20 First, section 110-6(a) of Code lacks any negative language prohibiting further action in
the event the hearing is not held within 72 hours of the filing of the State’s petition, nor are there
any other specific consequences prescribed for the court’s failure to hold a hearing within the
specified time frame. See 725 ILCS 5/110-6(a) (West 2022). Had the legislature intended a
mandatory reading, it could have written, for example, that any detention order imposed is void if
the hearing was held more than 72 hours after the filing of the State’s motion. See Robinson, 217
Ill. 2d at 58. However, it did not do so.
¶ 21 We also find no support for the conclusion that the right which section 110-6(a) is designed
to protect would generally be injured under a directory reading. Section 110-6(a) is designed to
protect victims and the community from defendants who are alleged to have committed felonies
or Class A misdemeanors while on pretrial release, and to provide prompt hearings to determine
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whether revocation is warranted. Although the Code contemplates that such hearings should be
held expeditiously, in particular because a defendant may be held in custody pending the
revocation hearing (see 725 ILCS 5/110-6(a) (West 2022)), a strict mandatory construction of the
72-hour requirement does not achieve the purpose of the statute to determine whether revocation
of previously-granted pretrial release is warranted.
¶ 22 We also note that the statute mandates that the revocation hearing will be conducted by the
same trial judge who ordered the defendant’s pretrial release, who would be most familiar with the
original charge, and who can best analyze the impact of the new charges on the judge’s previous
decision. See id. (upon the court’s own motion or a State’s petition to revoke, the court “shall order
the transfer of the defendant and the petition or motion to the court before which the previous
felony or Class A misdemeanor is pending” and the “defendant shall be transferred to the court
before which the previous matter is pending without unnecessary delay”). In some circumstances,
like those presented here, it may be impossible for the hearing to comply with both statutory
mandates—that it be before the same trial judge, and that it is conducted within 72 hours. In this
case, the State’s petition was filed on Friday, January 12, 2024. Monday, January 15, 2024, was a
court holiday, and the trial judge who had previously ordered pretrial release was unavailable on
Tuesday, January 16, 2024. Accordingly, the hearing occurred at the first possible opportunity—
on Wednesday, January 17, 2024. This one-day delay does not thwart the legislative intent to
hold a prompt hearing before the judge most familiar with the matter.
¶ 23 In summary, we conclude that section 110-6(a) imposes an obligation on the circuit
court to hold a hearing within 72 hours of the State’s petition. However, this obligation is not
mandatory with respect to the mandatory-directory dichotomy. In so holding, we are not
discouraging the timely disposition of hearings under section 110-6(a). We conclude, however,
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that the statute’s command is directory only, and no consequence is warranted for the court’s
failure to hold a hearing within the 72-period under the particular facts of this case.
¶ 24 Next, defendant argues that he should be released from custody because the State’s petition
to revoke his release erroneously cited section 110-6(b) of the Code rather than section 110-6(a).
¶ 25 Revocation of a defendant’s pretrial release is governed by section 110-6 of the Code. 725
ILCS 5/110-6 (West 2022). Section 110-6(a) provides that release may be revoked only if (1) the
defendant had previously been granted release for either a felony or a Class A misdemeanor, (2)
the defendant is charged with a new felony or Class A misdemeanor alleged to have occurred while
the defendant was on release, and (3) either the State files a verified petition for revocation or the
court moves to revoke on its own motion. Id. § 110-6(a). Upon the filing of a verified petition, or
on the court’s own motion, the court may revoke release after a hearing if the State proves, by
clear and convincing evidence, that “no condition or combination of conditions of release would
reasonably ensure the appearance of the defendant for later hearings or prevent the defendant from
being charged with a subsequent felony or Class A misdemeanor.” Id.
¶ 26 Section 110-6(b), on the other hand, applies only to those defendants who have been
previously granted pretrial release for a Class B or Class C misdemeanor. Id. § 110-6(b).
Specifically, section 110-6(b) provides that defendants who are charged with a subsequent felony
or Class A misdemeanor while on release for a Class B or Class C misdemeanor are not eligible
for revocation, but may be subject to sanctions or modification of their release conditions. Id.
¶ 27 Here, defendant had been previously granted release for endangering the life or health of a
child, which is a Class A misdemeanor. 720 ILCS 5/12C-5(a)(1), (d) (West 2022). Thus, there is
no dispute that he was theoretically eligible for revocation under section 110-6(a). Moreover,
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section 110-6(b) would not apply to defendant, as he had not been previously granted release for
a Class B or Class C misdemeanor.
¶ 28 However, as is the crux of defendant’s argument on appeal, the State’s petition for
revocation erroneously stated that it was filed “pursuant to 725 ILCS 5/110-6(b)[.]” According to
defendant, this error renders him “wrongly detain[ed].” The State maintains that it was “nothing
more than a scrivener’s error” and did not result in prejudice to defendant.
¶ 29 We agree with the State. Although the body of the State’s petition references section 110-
6(b) in one instance, it is clear that the parties understood the document to be a revocation petition
under section 110-6(a). First, the petition is entitled “Petition for Revocation of Pretrial Release.”
As previously explained, only section 110-6(a) deals with the revocation of pretrial release. The
body of the petition also states that it is a “verified petition for revocation” that was filed “because
the defendant, while on pretrial release for a Felony or Class A misdemeanor, is charged with a
new Felony or Class A misdemeanor[.]” Similarly, the petition requests as relief “a revocation
hearing” at which the State would attempt to prove “no condition or combination of conditions of
release would reasonably *** prevent the defendant from being charged with a subsequent Felony
or Class A Misdemeanor.” Again, all of this language applies only to revocation hearings
conducted under section 110-6(a), not section 110-6(b). Additionally, the transcript from the
revocation hearing clearly shows that neither defense counsel nor the circuit court had any
confusion as to the nature of the proceedings. Thus, defendant’s argument is meritless.
¶ 30 Defendant’s next claim of error is that the State failed to prove, by clear and convincing
evidence, that no condition or combination of conditions of pretrial release would reasonably
prevent him from being charged with a subsequent felony or Class A misdemeanor. More
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specifically, defendant maintains that the court could have used less restrictive means like
electronic monitoring to prevent him from being charged with new offense.
¶ 31 Initially, we must address the standard of review. The State acknowledges that the standard
of review for pretrial detention appeals is currently “in flux,” but contends that we should affirm
under any standard. Defendant, not having filed an appellant memorandum, has made no comment
on the standard of review.
¶ 32 It appears that only one published decision has directly addressed the standard of review
for orders to revoke a defendant’s pretrial release. In People v. Perez, 2024 IL App (2d) 230504,
¶ 13, the Second District held that “[a] circuit court’s decision to detain a defendant is reviewed
using a two-part standard of review” whereby (1) the court’s factual findings are reviewed under
the manifest weight of the evidence standard but (2) the ultimate decision of whether a defendant
should be detained is reviewed for abuse of discretion. However, the Perez court did not
distinguish between the review of revocation proceedings under section 110-6(a) of the Code and
the review of denials of pretrial release under section 110-6.1, reasoning that the standard is the
same under either section. Id.¶ 33 In light of the similar language and purposes of sections 110-6 and 110-6.1, we agree with
Perez that the same standard of review should apply under both sections. But that does not resolve
the issue because, as this court has recognized many times, there is an ongoing debate about the
proper standard of review in appeals brought under section 110-6.1. For example, in People v. Lee,
2024 IL App (1st) 232137, ¶¶ 20-22, we detailed the “significant disagreement” about the standard
of review among the appellate courts, but ultimately concluded that we did not need to decide the
matter where we would reach the same decision under any standard.
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¶ 34 Here, as in Lee, we would affirm the circuit court’s decision to revoke defendant’s pretrial
release under any standard of review. Defendant asserts that the court erred by determining that
electronic monitoring would not reasonably prevent him from being charged with a subsequent
felony or Class A misdemeanor. The circuit court rejected this argument below, opining that
electronic monitoring “would not prevent [defendant] from getting another gun.” The court
explained that it placed great weight on the fact that both of defendant’s pending cases involved a
firearm. Indeed, the record reflects defendant’s propensity to mix the dangerous combination of
firearms and illegal substances. He was initially charged with child endangerment for allowing his
young son to shoot himself while he, defendant, was “intoxicated on the floor.” Then, albeit 22
months later, defendant was arrested again after a domestic disturbance while in illegal possession
of a firearm, drugs, and a pipe with which to consume those drugs. We also note that both of these
instances could just have easily occurred at defendant’s home if he were confined there on
electronic monitoring. Under these circumstances, we agree with the circuit court’s assessment
that no condition or combination of conditions would reasonably prevent defendant from being
charged with a subsequent felony or Class A misdemeanor. 1
¶ 35 Finally, we briefly acknowledge that defendant also argues that the State failed to prove
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[.]” However, defendant’s release was revoked
under section 110-6(a) of the Code, which does not require the State to prove this factor. 725 ILCS
5/110-6(a) (West). The language cited by defendant refers to the State’s burden in a hearing for
1
Defendant’s notice in lieu of an appellant memorandum also suggests that he challenges the
court’s determination that electronic monitoring would not reasonably ensure his appearance at future
court proceedings. However, we need not address this argument because the record clearly shows that the
court did not rely on this basis for revoking defendant’s release.
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the denial of pretrial release under section 110-6.1 of the Code, not a revocation hearing under
section 110-6(a). 725 ILCS 5/110-6.1; Perez, 2024 IL App (2d) 230504, ¶ 15. We therefore need
not address this argument, as it is irrelevant to the order being appealed.
¶ 36 III. CONCLUSION
¶ 37 For the reasons stated, we affirm the judgment of the circuit court.
¶ 38 Affirmed.
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