No. 2-23-0344 Opinion filed December 20, 2023 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) Nos. 23-CF-861 ) 23-CF-971 ) DEVON DAVIDSON, ) Honorable ) Patricia S. Fix, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justices Schostok and Kennedy concurred in the judgment and opinion.

OPINION

¶1 Defendant, Devon Davidson, appeals from the denial of his pretrial release under recent

amendments to article 110 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/art.

110 (West 2022)), commonly known as the Safety, Accountability, Fairness and Equity-Today

(SAFE-T) Act or the Pretrial Fairness Act (Act). Defendant asserts that the State’s petitions to

deny his release were untimely and asks that we reinstate his monetary bond, which was set before

the Act took effect. We affirm.

¶2 I. BACKGROUND

¶3 On May 2, 2023, defendant was charged by information with aggravated battery in Lake

County case No. 23-CF-861. Defendant was involved in a car accident with another driver several

months earlier at the intersection of Green Bay Road and Major Avenue in Beach Park. Defendant

allegedly punched the other driver. The offense was charged as a felony because defendant caused

great bodily harm and because it occurred on a public way. 720 ILCS 5/12-3.05(a)(1), (c) (West

2022). A warrant was issued for defendant’s arrest. In addition, at the time of those charges,

defendant was on parole for aggravated unlawful restraint. When defendant was charged in case

No. 23-CF-861, the Department of Corrections placed a parole hold on him.

¶4 Defendant was taken into custody on May 16, 2023, and the events surrounding his arrest

generated Lake County case No. 23-CF-971. The record indicates that, as police were attempting

to arrest defendant in Zion, he used his vehicle to flee and struck an officer with his car. The

authorities located defendant at a nearby motel in Waukegan, but he again fled in his vehicle,

struck another car in traffic, and then fled on foot and was eventually captured. As a result,

defendant was charged by information and then a superseding indictment with aggravated battery

to a peace officer (720 ILCS 5/12-3.05(d)(4) (West 2022)), resisting arrest (id. § 31-1(a-7)), and

aggravated assault with a vehicle (id. § 12-2(c)(7)).

¶5 At defendant’s first appearance in case No. 23-CF-971, the circuit court (Hon. Theodore

Potkonjak) set defendant’s bond at $2.5 million, of which he would need to post 10%, and pretrial

services recommended certain conditions if defendant were released. Defendant filed a motion to

reduce his bond, which was denied in July 2023. He has remained in custody since his arrest.

¶6 The Act’s amendments (Pub. Act 101-652, § 10-255 (eff. Jan. 1, 2023); Pub. Act 102-1104,

§ 70 (eff. Jan. 1, 2023)) became effective when our supreme court lifted its stay on September 18,

2023. See Rowe v. Raoul,

; People ex rel. Berlin v. Raoul, No. 129249 (Ill.

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Dec. 31, 2022) (supervisory order). On September 19, 2023, defendant filed, in both case Nos. 23-

CF-861 and 23-CF-971, motions for a hearing on pretrial release with conditions under section

110-5(e) of the Act. See 725 ILCS 5/110-5(e) (West 2022). Two days later, the State filed a verified

petition to deny release in each case, alleging that defendant posed a real and present threat to the

community and that there was a high likelihood of defendant’s willful flight to avoid prosecution.

See 725 ILCS 5/110-6.1(a)(8) (West 2022).

¶7 The circuit court (Hon. Patricia Fix) conducted a hearing on defendant’s motions and the

State’s petitions on September 21, 2023. At the hearing, the State indicated that it would be

proceeding, by way of proffer, solely on the allegation of willful flight. The State then recited the

circumstances of defendant’s most recent arrest, noting that he thrice attempted to flee from the

police in a vehicle and seriously injured both an officer and another driver during his series of

failed escapes. The State then cited defendant’s extensive criminal history and the fact that he was

on parole, and it noted that during his most recent arrest defendant was also taken into custody on

a warrant out of Racine County, Wisconsin, for bail jumping and theft.

¶8 The pretrial services report, which was before the circuit court, sheds a little more light on

defendant’s criminal history. In the Racine County cases, defendant faces 12 counts of

misappropriating identification to obtain money, 5 counts of bail jumping, battery by a prisoner,

and substantial battery with bodily harm. He has six documented failures to appear in those cases.

As for defendant’s criminal history in Illinois, he has six prior felony convictions, including

aggravated driving under the influence and unlawful use of a weapon by a felon as well as the

aforementioned aggravated unlawful restraint.

¶9 Defendant’s counsel stated that he believed the Wisconsin cases could be resolved by a

probation sentence, and he disputed whether defendant “understood that the people who were

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stopping him with a firearm drawn were police officers acting in their official capacity.” Counsel

also suggested that “SCRAM would be a possible condition, as well as electronic home

monitoring,” confining him to a residence in Zion. (In the context of pretrial release, SCRAM

refers to secure continuous remote alcohol monitoring. See People v. Herrera,

; Victor E. Flango and Fred L. Cheeseman, Effectiveness of the Scram Alcohol

Monitoring Device: A Preliminary Test, 6 Drug Ct. Rev. 109 (2009).) Counsel noted that defendant

had children who lived in the area and that there was evidence he was intoxicated when he fled

from the police, so he might not have understood that the plainclothes officers were arresting him.

¶ 10 The circuit court found that “no combination of conditions” would be adequate and “that

the defendant has a high likelihood of willful flight to avoid prosecution.” The court ordered that

defendant would be detained pretrial.

¶ 11 Defendant filed a pro se notice of appeal, and his attorney filed a second notice of appeal

the same day. The court appointed the Office of the State Appellate Defender to represent

defendant on appeal, and defendant and the State have each submitted memoranda for our review.

¶ 12 II. ANALYSIS

¶ 13 On appeal, defendant contends that the circuit court erred when it granted the State’s

petitions to deny his release, which defendant alleges the court had no authority to grant under the

Act. Defendant further claims that his public defender was ineffective for failing to move to strike

the State’s petitions and asks that we order the circuit court to reset his monetary bond. We affirm.

¶ 14 As a threshold matter, we are compelled to note that defendant never raised an objection

in the circuit court to the State’s petitions. Defendant raises the issue now, as ineffective assistance

of counsel, to evade forfeiture. Of course, “ ‘forfeiture is a limitation on the parties and not the

reviewing court, and we may overlook forfeiture where necessary to obtain a just result or maintain

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a sound body of precedent.’ ” People v. Kurzeja,

(quoting People

v. Holmes,

). Like the court in Kurzeja, we are inclined to relax

forfeiture in this case, as it raises an important issue in the developing body of law under this new

statutory regime.

¶ 15 As for our standard of review, some courts have found that a circuit court’s pretrial release

determination should not be reversed absent an abuse of discretion. People v. Inman,

. Others have employed a bifurcated standard, in which the court’s factual

findings are reviewed under the manifest-weight-of-the-evidence standard and the court’s ultimate

findings are reviewed for an abuse of discretion. People v. Vingara,

. For our purposes, under either standard, the result in this case is the same. In addition, to the

extent our consideration involves the Act’s construction, our review is de novo. Kurzeja,

.

¶ 16 Defendant’s primary argument suggests that it was error for the State to file the petitions

to deny his pretrial release after he filed motions for a hearing under section 110-5. That was not

error; it was consistent with the Act.

¶ 17 Section 110-7.5 (725 ILCS 5/110-7.5 (West 2022)) explains that persons arrested prior to

the effective date of the Act—i.e., prior to September 18, 2023—fall into one of three categories.

“The first category consists of any person who was released subject to pretrial conditions

prior to the effective date of the Act.

§ 110-7.5(a). The second category consists of any

person who remains in pretrial detention after being ordered released with pretrial

conditions, including the depositing of monetary security. Id. § 110-7.5(b). The third

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

previously set as ‘no bail.’ Id.” (Emphasis in original.) People v. Lippert, 2023 IL App

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(5th) 230723, ¶ 9.

As in Lippert, defendant falls into the second category, and arrestees in the second category are

faced with two options. They may either (1) “file a motion seeking a hearing to have their pretrial

conditions reviewed anew” under the Act’s amendments to the Code or they (2) “may elect to stay

in detention until such time as the previously set monetary security may be paid” so that “they may

be released under the terms of the original bail.” People v. Rios,

(citing 725 ILCS 5/110-5(e), 110-7.5(b) (West 2022)). “Some defendants may prefer this 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.” Id. ¶ 17. “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 choose to be sentenced under that law that existed at the time of the

offense or the newly enacted law.” Id. (citing People v. Horrell,

(2009)).

Here, defendant filed a motion seeking to remove the monetary condition from his pretrial release,

meaning he necessarily sought to “reopen” consideration of his conditions for release. See 725

ILCS 5/110-5(e), 110-7.5(b) (West 2022). That motion, in turn, triggered consideration of

defendant’s pretrial release conditions under the Code as amended by the Act, under which, on the

State’s petition, the court could deny defendant’s release altogether. See People v. Whitmore,

; Kurzeja,

; People v. Jones,

; cf. Rios,

(finding that the State’s

detention petition was untimely in the absence of a petition for pretrial release). Thus, as the

relevant statutes indicate, the State’s petition is a responsive pleading to defendant’s motions. See

725 ILCS 5/110-6, 110-6.1 (West 2022). Here, contrary to defendant’s argument, the State’s

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petition was appropriate.

¶ 18 Defendant also asserts that the circuit court was obliged to leave his monetary bond in

place. We disagree. The Act now categorically “forbids the circuit court from reimposing monetary

bond as a condition of pretrial release.” Lippert,

(citing 725 ILCS

5/110-1.5 (West 2022)). “The only way monetary security could remain as a condition of the

defendant’s pretrial release was if the defendant made the election to stand on the original terms

of his bond, set before the effective date of the Act.”

Defendant made the decision to seek

reconsideration of his pretrial release under the Act, whereby the court could either order his

release with nonmonetary conditions or, upon the State’s petition, deny his release altogether. We

cannot fault the circuit court for reaching a decision—in this case, detention—that was specifically

authorized by the Act. Both the State’s petition and the court’s action on that petition were

consistent with the statutory authority. Counsel therefore could not have been ineffective for not

moving to strike the State’s pleading.

¶ 19 Further, we reject defendant’s argument that the circuit court abused its discretion in

finding a likelihood of his willful flight. We note that defendant raised this issue in both his pro se

and counsel’s notice of appeal; he does not reference it in his optional memoranda in this court.

See generally People v. Martin,

. Regardless, we find no error in

the court’s decision.

¶ 20 In the notices of appeal, defendant asserted that the State failed to present clear and

convincing evidence that he “kn[e]w” he was fleeing from the police. We disagree. Although the

State’s evidence was entirely by way of proffer, the Act specifically accepts the nature and quality

of such evidence at this early stage in a criminal case. See 725 ILCS 5/110-6.1(f)(2) (West 2022)

(“The State or defendant may present evidence at the hearing by way of proffer based upon reliable

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information.”). The evidence indicated that when the police were attempting to arrest him

defendant fled at least three times, during which he struck a police officer and injured a hapless

driver. While the State’s proffer could have been more fulsome, its offer of proof was nevertheless

sufficient for the circuit court to make a reasoned decision on the likelihood of his willful flight—

particularly in light of defendant’s voluminous criminal history and prior missed court

appearances. We also reject defendant’s assertion that we should discount the State’s proffer

merely because defendant was not charged with the additional offense of fleeing and eluding. See

generally 625 ILCS 5/11-204, 11-204.1 (West 2022). If the legislature intended that a bond court

judge could find a likelihood of willful flight only in the limited circumstance when the defendant

is charged with fleeing and eluding, it stands to reason that the General Assembly would have said

so. Defendant has given us no persuasive reason to adopt his argument, and we decline to read

such a limitation into the Act.

¶ 21 III. CONCLUSION

¶ 22 While the Act’s amendments “abolished the requirement of the posting of monetary bail,

it did not eliminate the option to post the previously ordered security.” (Emphasis in original.)

Rios,

. Defendant elected to forgo posting that security, however,

and sought reconsideration of his pretrial release under the Code of Criminal Procedure as

amended by the Act, which hazarded his detention upon the State’s petition. That was defendant’s

choice. Further, we can find no error in the circuit court’s willful-flight assessment, and therefore

we defer to its exercise of discretion. Accordingly, the judgment of the circuit court of Lake County

is hereby affirmed.

¶ 23 Affirmed.

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