NOTICE Decision filed 11/28/23. The text of this decision may be NO. 5-23-0766 changed or corrected prior to the filing of a Peti ion for IN THE Rehearing or the disposition of the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Jefferson County. ) v. ) No. 23-CF-272 ) COLE A. SWAN, ) Honorable ) Jerry E. Crisel, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE CATES delivered the judgment of the court, with opinion. Justices Welch and McHaney concurred in the judgment and opinion.

OPINION

¶1 The defendant, Cole A. Swan, appeals the trial court’s order of September 21, 2023,

granting the State’s petition to deny the defendant’s pretrial release pursuant Public Act 101-652,

§ 10-255 (eff. Jan. 1, 2023), commonly known as the Safety, Accountability, Fairness and Equity-

Today (SAFE-T) Act (Act). 1 See Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023) (amending various

provisions of the Act); Rowe v. Raoul,

(lifting stay and setting effective date

as September 18, 2023). The defendant claims that the Act does not allow the State to file a verified

petition to deny pretrial release in cases where a defendant remains in custody after having been

1 The Act has been commonly referred to as the “SAFE-T Act” or the “Pretrial Fairness Act.” Neither name is official, as neither appears in the Illinois Compiled Statutes or public act. Rowe v. Raoul,

, ¶ 4 n.1. 1 ordered released on the condition of depositing security. In this case, the defendant was arrested

and detained before September 18, 2023—the date the Act went into effect. Accordingly, this

appeal presents a narrow issue only relevant to those defendants who were arrested and detained

prior to the effective date of the Act. Therefore, our holding should not be construed to affect those

defendants arrested on or after the effective date of the Act. For the reasons that follow, we vacate

the order of September 21, 2023, and remand the cause for further proceedings.

¶2 I. BACKGROUND

¶3 On September 8, 2023, the defendant was charged by information with three felony

offenses in Jefferson County, Illinois. Count I alleged unlawful possession of methamphetamine

with intent to deliver less than five grams (720 ILCS 646/55(a)(1) (West 2022)), a Class 2 felony.

Count II alleged unlawful delivery of methamphetamine, less than five grams (720 ILCS

646/55(a)(1) (West 2022)), a Class 2 felony. Count III alleged unlawful delivery of

methamphetamine, more than 5 grams but less than 15 grams (720 ILCS 646/55(a)(1) (West

2022)), a Class 1 felony. The defendant’s bond was set at $50,000, with no other conditions of

release. A preliminary hearing was scheduled for September 21, 2023. The defendant was unable

to post bond and remained in detention.

¶4 On September 21, 2023, the State filed a verified petition to deny pretrial release pursuant

to section 110-6.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/110-6.1 (West

2022)), as amended by the Act. The State also filed a bill of indictment charging the defendant

with the same felony offenses set forth in the information. That same day, the defendant’s attorney

filed a “Motion for Pretrial Release” pursuant to section 110-6.1 and section 110-7.5 of the Code

(725 ILCS 5/110-6.1, 110-7.5 (West 2022)).

2 ¶5 On September 21, 2023, the trial court held a hearing on the State’s petition to deny pretrial

release. The defendant was represented by counsel. After considering the State’s proffer and the

arguments of counsel, the trial court entered a written order of detention. In the order, the trial

court found by clear and convincing evidence that the proof was evident or the presumption great

that the defendant had committed a detainable offense, i.e., a non-probationable drug offense,

under section 110-6.1(a) of the Code; and that “no condition or combination of conditions set forth

in 725 ILCS 5/110-10” could mitigate the real and present threat to the safety of the community,

based upon the specific articulable facts of the case. The trial court also found that the defendant

posed a serious risk to “not appear in court as required.” The defendant’s motion for pretrial release

was not argued that day and there is no indication that the motion was ruled on. The defendant

filed a timely appeal. Ill. S. Ct. R. 604(h) (eff. Sept. 18, 2023).

¶6 II. ANALYSIS

¶7 A. The Act’s Amendments to the Pretrial Release Provisions of the Code

¶8 Pretrial release is governed by article 110 of the Code, as amended by the Act. 725 ILCS

5/art. 110 (West 2022). Under the Code, a defendant’s pretrial release may only be denied in

certain statutorily limited situations. See 725 ILCS 5/110-2(a), 110-6.1 (West 2022). After filing

a timely, verified petition requesting denial of pretrial release, the State has the burden to prove by

clear and convincing evidence that the proof is evident or the presumption great that a defendant

has committed a qualifying offense, that the defendant’s pretrial release poses a real and present

threat to the safety of any person or the community or a flight risk, and that less restrictive

conditions would not avoid a real and present threat to the safety of any person or the community

and/or prevent the defendant’s willful flight from prosecution. 725 ILCS 5/110-6.1(e), (f) (West

2022).

3 ¶9 Factors that the trial court may consider in making a “determination of dangerousness,”

i.e., that the defendant poses a real and present threat to any person or the community include, but

are not limited to, (1) the nature and circumstances of any offense charged, including whether the

offense is a crime of violence involving a weapon or a sex offense; (2) the history and

characteristics of the defendant; (3) the identity of any person to whom the defendant is believed

to pose a threat and the nature of the threat; (4) any statements made by or attributed to the

defendant, together with the circumstances surrounding the statements; (5) the age and physical

condition of the defendant; (6) the age and physical condition of the victim or complaining witness;

(7) whether the defendant is known to possess or have access to any weapons; (8) whether at the

time of the current offense or any other offense, the defendant was on probation, parole, or other

form of supervised release from custody; and (9) any other factors, including those listed in section

110-5 of the Code (725 ILCS 5/110-5 (West 2022)). 725 ILCS 5/110-6.1(g) (West 2022).

¶ 10 If the trial court finds that the State proved a valid threat to the safety of any person or the

community and/or defendant’s likely willful flight to avoid prosecution, or defendant’s failure to

abide by previously issued conditions of pretrial release, the trial 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) (West 2022). In

reaching its determination, the trial 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; 2 (4) the nature and seriousness of the specific, real and present

2 The defendant’s history and characteristics include: “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, *** criminal history, and record concerning 4 threat to any person that would be posed by the defendant’s release; and (5) the nature and

seriousness of the risk of obstructing or attempting to obstruct the criminal justice process. 725

ILCS 5/110-5(a) (West 2022). The statute lists no singular factor as dispositive. 725 ILCS 5/110-

5(a) (West 2022).

¶ 11 If the trial court determines that the defendant should be denied pretrial release, the court

is required to make written findings summarizing the reasons for denying pretrial release. 725

ILCS 5/110-6.1(h) (West 2022). The trial court’s determination regarding pretrial release will not

be reversed absent an abuse of discretion. See People v. Perruquet,

(1977);

People v. Etherton,

(setting similar standard of review for the

sentence imposed on the defendant after the trial court’s consideration of statutory factors and

evidence presented at sentencing). Likewise, questions regarding whether the trial court properly

considered one or more of the statutory factors in determining dangerousness and/or conditions of

release are reviewed for an abuse of discretion. See People v. Simmons,

,

¶¶ 9, 15 (in considering trial court’s decision to deny bail, the reviewing court will not substitute

its judgment for that of the trial court merely because it would have balanced the appropriate

factors differently). An abuse of discretion occurs when the decision of the circuit court is arbitrary,

fanciful, or unreasonable, or when no reasonable person would agree with the position adopted by

the trial court. Simmons,

, ¶ 9.

¶ 12 Additionally, the trial court’s finding that the State presented clear and convincing evidence

showing that mandatory conditions of release would fail to protect any person or the community,

and/or that the defendant had a high likelihood of willful flight to avoid prosecution, or that the

appearance at court proceedings,” as well as “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 federal law, or the law of this or any other state.” 725 ILCS 5/110-5(a)(3)(A), (B) (West 2022). 5 defendant failed to comply with previously issued conditions of pretrial release thereby requiring

a modification or revocation of the previously issued conditions of pretrial release will not be

reversed unless those findings are against the manifest weight of the evidence. See In re C.N.,

(2001) (setting a similar standard of review for requirement of clear and convincing

evidence by the State in juvenile proceedings). “A finding is against the manifest weight of the

evidence only if the opposite conclusion is clearly evident or if the finding itself is unreasonable,

arbitrary, or not based on the evidence presented.” People v. Deleon,

(2008).

“Under the manifest weight standard, we give deference to the trial court as the finder of fact

because it is in the best position to observe the conduct and demeanor of the parties and witnesses.”

Deleon,

.

¶ 13 B. Whether the Trial Court Erred in Denying Pretrial Release

¶ 14 On appeal, the defendant initially claims that the trial court erred when it granted the State’s

petition to detain him. He argues that the State did not have the authority to file a petition to deny

pretrial release due to the timing requirements of section 110-6.1(c)(1) (725 ILCS 5/110-6.1(c)(1)

(West 2022)). He also argues that the State was not permitted to file a detention petition where a

defendant, such as himself, remained in custody after having been ordered released because that

defendant could not post the required monetary security. The defendant acknowledges that his

attorney did not object to the State’s petition and that this claim of error was not raised in his notice

of appeal. He seeks review under the second prong of the plain-error doctrine. Under the second

prong of plain-error review, a reviewing court may consider a forfeited error when the error is so

serious that it deprives the defendant of a substantial right. People v. Herron,

(2005). In the alternative, the defendant contends that his counsel’s failure to object to the State’s

petition constituted ineffective assistance of counsel. The defendant also claims that the trial court

6 erred in denying pretrial release because the State did not meet its burden of proof to demonstrate

that he was posed a real and present threat to the safety of the community and that no conditions

could mitigate that threat, and because the trial court did not sufficiently consider imposing

conditions of release that would have mitigated any threat to the community.

¶ 15 In response, the State claims that its ability to file a verified petition subsequent to the

defendant’s arrest and bond order was authorized by the intent and language of the Act, citing

section 110-2(e) of the Code (725 ILCS 5/110-2(e) (West 2022)). The State also references section

110-6(i), which provides, “Nothing in this Section shall be construed to limit the State’s ability to

file a verified petition seeking denial of pretrial release under subsection (a) of Section 110-6.1 or

subdivision (d)(2) of Section 110-6.1.” 725 ILCS 5/110-6(i) (West 2022). In addition, the State

claims that it proved, by clear and convincing evidence, that the proof was evident or the

presumption great that the defendant committed a qualifying offense, namely, a non-probationable

drug offense; that no condition or combination of conditions could mitigate the real and present

threat to the safety of any person or the community, based on the specific articulable facts of the

case; and, that the defendant posed a serious risk of not appearing in court as required. Finally, the

State contends that the defendant’s ineffective assistance of counsel argument should be

disregarded because it is without merit.

¶ 16 We first consider the defendant’s claim that the State had no authority to file its petition

and thus the trial court had no basis upon which to enter the order denying pretrial release. This

issue involves a matter of statutory construction and is reviewed de novo. People v. Taylor,

.

¶ 17 “The primary goal of statutory construction, to which all other rules are subordinate, is to

ascertain and give effect to the intention of the legislature.” Jackson v. Board of Election

7 Commissioners,

. The best indication of the legislative intent is the plain

language of the statute. Jackson,

. “The statute should be evaluated as a

whole, with each provision construed in connection with every other section. When the statutory

language is clear, we must apply the statute as written without resort to other tools of construction.”

Jackson,

.

¶ 18 Section 110-6.1 sets forth the prerequisites for denial of pretrial release. 725 ILCS 5/110-

6.1 (West 2022). Subsection (c)(1) mandates the timing of a petition to detain and provides as

follows:

“(1) A petition may be filed without prior notice to the defendant at the first

appearance before a judge, or within the 21 calendar days, except as provided in Section

110-6, after arrest and release of the defendant upon reasonable notice to defendant;

provided that while such petition is pending before the court, the defendant if previously

released shall not be detained.” 725 ILCS 5/110-6.1(c)(1) (West 2022).

Under the plain language of this subsection, the State may file a petition to detain at the time of

the defendant’s first appearance before a judge; no prior notice to the defendant is required.

Alternatively, the State may file a petition to detain the defendant within 21 calendar days after

the arrest and release of the defendant; however, reasonable notice is to be provided to the

defendant under this circumstance. The exception to these timing requirements is set forth in

section 110-6(i) (725 ILCS 5/110-6(i) (West 2022)).

¶ 19 Section 110-6 addresses the revocation of pretrial release, the modification of conditions

of pretrial release, and sanctions for violations of conditions of pretrial release and provides in

pertinent part as follows:

8 “(a) When a defendant has previously been granted pretrial release under this

Section for a Class A misdemeanor, that pretrial release may be revoked only 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.

***

(b) If a defendant previously has been granted pretrial release under this Section for

a Class B or Class C misdemeanor offense, a petty or business offense, or an ordinance

violation and if the defendant is subsequently charged with a felony that is alleged to have

occurred during the defendant’s pretrial release or a Class A misdemeanor offense that is

alleged to have occurred during the defendant’s pretrial release, such pretrial release may

not be revoked, but the court may impose sanctions under subsection (c).

***

(i) Nothing in this Section shall be construed to limit the State’s ability to file a

verified petition seeking denial of pretrial release under subsection (a) of Section 110-6.1

or subdivision (d)(2) of Section 110-6.1.” 725 ILCS 5/110-6(a), (b), (i) (West 2022).

¶ 20 We find that section 110-6 is not applicable to the defendant because he had not been

released from detention following his arrest and he had not been charged with any new offenses.

Accordingly, the exception to the timing requirements set forth in section 110-6.1(c)(1) is also not

applicable to the defendant. Based on the foregoing, we find that the State’s petition to detain the

defendant pursuant to section 110-6.1 was untimely and that the trial court did not have the

authority to detain the defendant pursuant to the untimely petition.

9 ¶ 21 Although section 110-6 is inapplicable to the defendant, another section of the Code

addresses persons who were arrested prior to the effective date of the Act and separates them into

three categories. 725 ILCS 5/110-7.5 (West 2022). The first category consists of any person who

was released subject to pretrial conditions prior to the effective date of the Act. 725 ILCS 5/110-

7.5(a) (West 2022). The second category consists of any person who remains in pretrial detention

after being ordered released with pretrial conditions. 725 ILCS 5/110-7.5(b) (West 2022). The

third category consists of any person who remains in pretrial detention and whose bond was

previously set as “no bail.” 725 ILCS 5/110-7.5(b)(1), (2), (3) (West 2022).

¶ 22 The defendant belongs in the second category. 725 ILCS 5/110-7.5(b) (West 2022).

Section 110-7.5(b) provides in part as follows:

“(b) On or after January 1, 2023, 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(b) (West 2022).

¶ 23 Section 110-5(e) provides:

“If a person remains in pretrial detention 48 hours after having been ordered released with

pretrial conditions, the court shall hold a hearing to determine the reason for continued

detention. If 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 to determine what available pretrial conditions exist that will reasonably ensure the

appearance of a defendant as required, the safety of any other person, and the likelihood of

compliance by the defendant with all the conditions of pretrial release. The inability of the

10 defendant to pay for a condition of release or any other ineligibility for a condition of

pretrial release shall not be used as a justification for the pretrial detention of that

defendant.” 725 ILCS 5/110-5(e) (West 2022).

¶ 24 We have reviewed the Code and analyzed the relevant provisions in each section together,

rather than alone. Based upon our review, we find that defendants such as Swan who previously

had a cash bond set have two options available. Under sections 110-5(e) and 110-7.5(b), a

defendant may file a motion seeking a hearing to determine the reasons for continued detention. If

the trial court finds that the defendant’s 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 trial court is required to “reopen” the conditions of

release hearing. 725 ILCS 5/110-5(e), 110-7.5(b) (West 2022). During the hearing, the court will

be required to determine what available conditions exist that will reasonably ensure the appearance

of the defendant, the safety of any person or the community, and the likelihood of the defendant’s

compliance with all conditions of pretrial release. 725 ILCS 5/110-5(e) (West 2022). Thus, in

considering which conditions of pretrial release, if any, will reasonably satisfy the aforementioned

objectives, the court may consider the matters set forth in subsection 110-5(a) (725 ILCS 5/110-

5(a) (West 2022)). Alternatively, a defendant may elect to remain in detention until such time as

the previously set monetary security may be paid. Some defendants may choose the second option,

which allows for the possibility of pretrial release if the previously set monetary security is posted,

as opposed to requesting a hearing pursuant to the first option, after which they might be detained

without any possibility of pretrial release. This is analogous to when a change in the sentencing

law occurs after a defendant has committed the offense—the defendant is given the opportunity to

11 choose to be sentenced under that law that existed at the time of the offense or the newly enacted

law. People v. Horrell,

(2009).

¶ 25 Here, the defendant filed a motion for pretrial release that was not ruled on. On remand,

the defendant may elect to stand on the terms of his original pretrial conditions—an election that

would require no action on his part—or he may pursue his motion for a hearing under section 110-

5(e). 725 ILCS 5/110-5(e) (West 2022). Should the defendant decide to pursue his motion, he shall

be entitled to a timely hearing within 48 hours of his formal request pursuant to section 110-5(e).

¶ 26 In sum, we find that the trial court erred in granting the State’s untimely motion to deny

pretrial release and that the error affected substantial rights of the defendant under the second prong

of the plain-error doctrine. Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967); People v. Piatkowski,

(2007). Accordingly, the detention order issued September 21, 2023, is vacated, and

the original bond order is reinstated. Because the resolution of this issue is dispositive, we will not

consider the defendant’s other claims of error.

¶ 27 III. CONCLUSION

¶ 28 For the reasons stated, we vacate the trial court’s order of September 21, 2023, and remand

the cause for further proceedings.

¶ 29 Order vacated; cause remanded.

12 People v. Swan,

Decision Under Review: Appeal from the Circuit Court of Jefferson County, No. 23-CF- 272; the Hon. Jerry E. Crisel, Judge, presiding.

Attorneys Tiffany Boye Green, of State Appellate Defender’s Office, of for Chicago, Office of the State Appellate Defender Pretrial Appellant: Fairness Act Appeals, of Chicago, for Appellant.

Attorneys David Joseph Robinson, of State’s Attorneys Appellate for Prosecutor’s Office, of Springfield, State’s Attorney Appellate Appellee: Prosecutor, Pretrial Fairness Act Unit, of Springfield, for the People.

13