FILED January 23, 2024 NO. 4-23-1199 Carla Bender 4 th District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Rock Island County ) No. 23CF796 STEVEN L. GATLIN, Defendant-Appellant. ) Honorable ) Frank R. Fuhr, ) Judge Presiding.

JUSTICE CAVANAGH delivered the judgment of the court, with opinion. Justices Zenoff and Doherty concurred in the judgment and opinion.

OPINION

¶1 Defendant, Steven L. Gatlin, appeals the trial court’s order denying his pretrial

release pursuant to the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/110 et seq.

(West 2022)), as amended by Public Act 101-652 (eff. Jan. 1, 2023), commonly known as the

Pretrial Fairness Act (Act). On appeal, defendant argues the court erred by not conducting his

detention hearing in person. For the following reasons, we vacate the order and remand for a new

detention hearing.

¶2 I. BACKGROUND

¶3 On October 20, 2023, the State, by information, charged defendant with unlawful

violation of an order of protection (720 ILCS 5/12-3.4(a)(1)(i), (a)(2), (d) (West 2022)) for

visiting a protected address after having been previously convicted of violating an order of protection and criminal damage to property (id. § 21-1(a)(1), (d)(1)(F)) for damaging Jennifer

Miner’s swimming pool, patio table, and security camera. On November 2, 2023, the State filed

a verified petition to deny defendant pretrial release citing his charge for violating an order of

protection.

¶4 At the detention hearing, the trial court noted defendant was present on video. The

State proffered that defendant was out of custody on bond in Rock Island County case No.

23-DV-118, wherein a condition of bond prohibited defendant from having contact with Miner.

The present charge stemmed from Rock Island County case No. 23-OP-731, which prohibited

defendant from contact with Miner or being present at her residence located in Silvis, Illinois.

Defendant was served with this order of protection on July 14, 2023, and it was in effect until

2025. Additionally, the State noted defendant previously admitted to violating his probation in

Rock Island County case No. 22-CM-400 where he was convicted of violating an order of

protection for contacting Miner.

¶5 On September 30, 2023, Silvis police officers responded to Miner’s residence

wherein she stated defendant broke into her home. Officers observed the garage door was open

leading to an open back door where Miner’s patio table and security camera had been thrown

into her swimming pool. The swimming pool had been cut with a knife and was drained. Miner’s

dresser and nightstand had been covered in bleach, which stained her clothing inside the dresser.

Officers reviewed the security camera video and identified defendant as entering Miner’s

residence and causing the damage. The State noted defendant was currently on a “hold” out of

neighboring Scott County, Iowa, for violating a no contact or protective order.

¶6 Defendant contended he was not a risk for willful flight and, because of his

“hold” in Scott County, granting his pretrial release would not permit defendant to be released

-2- from custody. Defendant noted he has an alcohol addiction and what little money he makes from

working is given to his son. Defendant argued for home detention and inpatient treatment as an

alternative to pretrial detention.

¶7 The trial court found the State met its burden that the proof was evident and the

presumption great defendant committed a qualifying offense. The court found no conditions

would protect the public or Miner from further danger.

¶8 After reading defendant his appeal rights, the trial court stated, “Don’t tell me I

had the mic off the whole time.” The following exchange then took place after a recess was

taken:

“THE COURT: Mr. Gatlin

THE DEFENDANT: Yes, sir.

THE COURT: My mistake. We had your hearing, you were standing

there, but I had the mics muted. I don’t know how they got muted.

THE DEFENDANT: Yeah, it’s okay.

THE COURT: So you couldn’t hear.

THE DEFENDANT: Yes, sir. ”

Thereafter, the court summarized what transpired at defendant’s detention hearing.

¶9 Defendant utilized the notice of appeal form in the Article VI Forms Appendix to

the Illinois Supreme Court Rules. See Ill. S. Ct. R. 606(d) (eff. Sept. 18, 2023). On the form,

defendant sought to have the detention order vacated. Under the grounds for relief, defendant

checked the following boxes with his supporting detail shown in italics:

-3- “The State failed to meet its burden of proving by clear and convincing

evidence that defendant poses a real and present threat to the safety of any person

or persons or the community, based on the specific, articulable facts of the case.

Insufficient facts alleged in State’s proffer.

The State failed to meet its burden of proving by clear and convincing

evidence 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, based on

the specific, articulable facts of the case, or defendant’s willful flight.

Insufficient facts alleged in the State’s proffer.

The court erred in its determination that no condition or combination of

conditions would reasonably ensure the appearance of defendant for later hearings

or prevent defendant from being charged with a subsequent felony or Class A

misdemeanor.

Insufficient facts alleged by court [and] in the State’s proffer.”

¶ 10 This appeal followed.

¶ 11 II. ANALYSIS

¶ 12 On appeal, defendant contends the trial court erred by not conducting his

detention hearing in-person pursuant to section 110-6(a) of the Code, and, because he could not

hear the proceedings as they took place, his constitutional rights were violated. The State

counters that defendant’s arguments on appeal should be stricken because they were not raised in

his notice of appeal.

¶ 13 This court, in People v. Martin,

, stated issues not fairly

raised through a liberal construction of a defendant’s notice of appeal are forfeited. Id. ¶ 19. It is

-4- clear from defendant’s notice of appeal the issue raised in his appellate memorandum cannot be

liberally constructed from his notice of appeal. The notice of appeal raises nothing that can be

liberally construed to challenge the conduct of the hearing. At most, the issues in defendant’s

notice of appeal challenge the State’s proffered evidence or the trial court’s decision based on

that evidence.

¶ 14 Defendant contends, however, we may review this issue based on the plain error

doctrine because his absence from the hearing violated his constitutional rights. See People v.

Harris,

(where the appellate court found a sentencing hearing

to be a critical proceeding requiring the defendant’s presence because the outcome affected a

substantial right, namely the defendant’s freedom).

¶ 15 Plain errors or defects affecting substantial rights may be noticed even though

they were not brought to the attention of the trial court. Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967).

The plain error doctrine provides a narrow and limited exception to the general rule of

procedural default. People v. Ahlers,

(2010). The plain error doctrine

permits a reviewing court to bypass the normal principles of forfeiture and review unpreserved

errors where:

“(1) a clear or obvious error occurs and the evidence is so closely balanced that

the error alone threatened to tip the scales of justice against the defendant,

regardless of the seriousness of the error, or (2) a clear or obvious error occurs

and that error is so serious that it affected the fairness of the defendant’s trial and

challenged the integrity of the judicial process, regardless of the closeness of the

evidence.” People v. Piatkowski,

(2007).

-5- When applying the plain error doctrine, a reviewing court must first determine whether an error

occurred at all. People v. Hood,

.

¶ 16 In Martin, this court chose not to apply the plain error doctrine where the error

was not obvious at the onset of the Act and where no settled precedent was applicable. Martin,

. In Martin, the defendant challenged the State’s ability to file a

verified petition to deny pretrial release. Id. ¶ 16. We stated in Martin:

“Assuming for the sake of argument that the State’s petition to deny pretrial

release was improper, that fact was not obvious on the first day the Act was in

effect. For that matter, it was not obvious that defendant could respond by moving

to strike the petition or that the trial court had the authority to grant such a motion,

as defendant now assumes.”

Martin was correct, it was not obvious on the first day the Act was in effect that the State’s

petition was improper, and after the fact, it turns out the issue regarding the State’s petition was

not improper at all. See People v. Jones,

.

¶ 17 Defendant cites section 110-6(a) of the Code, which requires a defendant to be

present in person at a hearing to revoke pretrial release, modify conditions of pretrial release, or

consider sanctions for violations of conditions of pretrial release. 725 ILCS 5/110-6(a) (West

2022). However, the State did not file a petition to revoke defendant’s pretrial release, modify his

existing conditions of pretrial release, or seek sanctions for a violation of conditions of pretrial

release. Rather, the State filed a petition to deny pretrial release based upon defendant’s most

recent charge for violating an order of protection pursuant to section 110-6.1(a) of the Code.

-6- ¶ 18 Nonetheless, whether it be a petition to revoke pretrial release under section

110-6(a) or a petition to deny pretrial release under section 110-6.1(a), both sections of the Code

have precisely the same language requiring the defendant’s hearing be conducted in person:

“A hearing at which pretrial release may be denied must be conducted in person

(and not by way of two-way audio visual communication) unless the accused

waives the right to be present physically in court, the court determines that the

physical health and safety of any person necessary to the proceedings would be

endangered by appearing in court, or the chief judge of the circuit orders use of

that system due to operational challenges in conducting the hearing in person.

Such operational challenges must be documented and approved by the chief judge

of the circuit, and a plan to address the challenges through reasonable efforts must

be presented and approved by the Administrative Office of the Illinois Courts

every 6 months.” 725 ILCS 5/110-6.1(f)(3.5) (West 2022);

5/110-6(a).

¶ 19 Therefore, despite defendant’s reference to the wrong statutory section, we will

review the statutory language because it appears identically under both sections of the Code.

“The primary objective of statutory construction is to ascertain and give effect to the legislature’s

intent.” Evans v. Cook County State’s Attorney,

. “The most reliable

indicator of legislative intent is the language of the statute, given its plain and ordinary

meaning.”

“The court may consider the reason for the law, the problems sought to be

remedied, the purposes to be achieved, and the consequences of construing the statute one way

or another.”

“Issues requiring statutory interpretation are questions of law subject to de novo

review.”

-7- ¶ 20 Section 110-6.1(f)(3.5) of the Code is not ambiguous. It clearly states a detention

hearing must be conducted in person and not through two-way audio and visual communication

unless the defendant waives his right to be present, physical safety requires the defendant appear

remotely, or operational challenges require the defendant appear remotely.

¶ 21 Defendant correctly notes, and the State, on appeal, does not argue, that the trial

court made any findings that the physical safety of a person necessary to the detention hearing

would have been endangered by defendant’s in-person appearance. Nor does our review of the

record show defendant posed a risk to any person’s physical safety at the hearing. See People v.

Harris,

(stating the trial court made the necessary findings to

excuse the defendant’s physical presence at his detention hearing for the health and safety of

those present because of the defendant’s mental state and prior conduct). Defendant correctly

notes and the State does not argue otherwise that there were any operational challenges to

conducting defendant’s detention hearing in person. Our supreme court has given the circuit

courts significant flexibility to permit the use of remote detention hearings under the Act. Ill. S.

Ct., M.R. 31888 (eff. Sept. 18, 2023). Nonetheless, the supreme court’s order still requires the

chief judge of the circuit court to submit an order identifying such operational challenges to

conduct remote detention hearings. Nothing in the record or argued by the State on appeal

suggests such an order was in effect in Rock Island County. Defendant argues he did not waive

his right to be present for his detention hearing. The State does not argue defendant waived his

presence for the detention hearing. We note that after the court realized the microphones

transmitting audio to defendant remotely were muted, defendant did respond with “yeah, it’s

okay.” However, we are uninclined to view defendant’s statement as a post facto waiver of his

right to be physically present. See People v. Johnson,

(noting

-8- where an issue is waived, the appellate court need not conduct a plain error analysis). Rather, it

appears defendant’s statement was a passive, non-confrontational acknowledgment to the court

that defendant likely viewed as possessing the keys to his release from custody.

¶ 22 Therefore, we find this case to be substantially different from Martin. The Code

specifically requires the detention hearing be conducted with the defendant physically present.

This was obvious on the first day the Act was in effect. Because the record does not reveal any of

the qualifying conditions permitting defendant to participate in his detention hearing remotely,

we find a clear error has occurred. “A misapplication of the law rises to plain error when it

affects a defendant’s fundamental right to liberty.” Jones,

;

People v. Gathing,

, ¶ 19 (finding the trial court’s failure to conduct the

defendant’s detention hearing in person pursuant to section 110-6(a) was reversible error).

¶ 23 Additionally, we find this error falls under the second prong of the plain error

analysis. The central premise of the Act was to abolish monetary bail and default to a

defendant’s presumptive eligibility for pretrial release. Rowe v. Raoul,

; 725

ILCS 5/110-1.5, 110-2(a) (West 2022). The legislature clearly instructed that hearings under the

Code where a defendant may be denied pretrial release be conducted with a defendant’s right to

be physically present. Here, the entire detention hearing was conducted without defendant’s

participation. He was unable to hear the evidence and arguments presented against him or the

evidence and arguments presented in his defense, and, subsequently, unable to assist his own

attorney to advocate for his pretrial release. Defendant cannot meaningfully advocate for his

presumptive eligibility for pretrial release at a detention hearing where he is essentially a

non-participant. We need not and do not address the merits of the State’s petition because the

failure to comply with the Code affected the fundamental fairness of defendant’s detention

-9- hearing and challenged the integrity of the judicial process. Accordingly, we vacate the trial

court’s order denying defendant’s pretrial release and remand the matter for the court to conduct

a new detention hearing compliant with the Code.

¶ 24 III. CONCLUSION

¶ 25 For the reasons stated, we vacate the trial court’s order denying defendant pretrial

release and remand with directions for the court to set a new detention hearing and conduct those

further proceedings in a manner consistent with this order.

¶ 26 Vacated and remanded with directions.

- 10 - People v. Gatlin,

Decision Under Review: Appeal from the Circuit Court of Rock Island County, No. 23- CF-796; the Hon. Frank R. Fuhr, Judge, presiding.

Attorneys James E. Chadd, Carolyn R. Klarquist, and James Wozniak of State Appellate Defender’s Office, of Chicago, for appellant. for

Appellant:

Attorneys Patrick Delfino and David J. Robinson, of State’s Attorneys Appellate Prosecutor’s Office, of Springfield, for the People. for

Appellee:

- 11 -