Nos. 2-23-0475 & 2-23-0477 cons. Opinion filed February 7, 2024

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) V. ) Nos. 23-CF-2319 ) 23-CF-2323 ) ROBERT A. ACOSTA, ) Honorable

Defendant-Appellant. ) ) Elizabeth K. Flood, Judge, Presiding. . '

JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justice Kennedy concurred in the judgment and opinion. Presiding Justice McLaren specially concurred, with opinion.

OPINION

l Defendant, Robert A. Acosta, requests that we vacate the circuit court's orders granting the

State's verified petitions in these consolidated appeals to deny him pretrial release pursuant to

Public Act 101-652, § 10-255 (eff. Jan. 1, 2023), commonly known as the Pretrial Fairness Act (Act).

1 See Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023) (amending various provisions of the Act); Rowe v.

Raoul,

, 1 52 (lifting stay and setting effective date as September 18,

1The Act is also commonly known as the Safety, Accountability, Fairness and Equity-

Today (SAFE-T) Act.

2023). Specifically. defendant contends that (1) the State failed to prove that he committed a

detaina le offense in case No. 23-CF-2323, (2) the dete tion orders from these appeals are

duplicative and one should be dismissed, and (3) the no-contact order imposed as a conditii.m, of

etention was improper. For the following reasons, we affirm.

2 I. BACKGROUND

3 On October 30, 2023, defendant was charged in case No. 23-CF-2319 with criminal

damage to property (720 ILCS 5/21-l(a)(l) (West 2022)) and three counts of domestic battery (id.

12-3.2(a)(l), (2)). He was also charged, in case No. 23-CF-2323, with home invasion causing

injury (id § l 9-6(a)(2)), criminal trespass to residence (id § l 9-4(a)(2)), battery causing bodily

harm (id. § 12-3(a)(l)), and criminal damage to property (id. § 21-l(a)(l)).

4 The same day, the State filed petitions to detain in pot c_ases pursuant to section.1 l0-6.1

of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/110-6.1 (West 2022)), as amended

by the Act. The State argued that home invas m (No. 3-CF-2323) and domestic battery (No. 23- CF-

2319) were detainable offenses and t at de end nt posed a real and present threat to 1h safety of

any person or the community.

,i 5 Also, this same day, a hearing commenced on the State's petitions to detain. The State

proffered that defendant battered Evelyn Garcia, his children's mother, at 4:45 a.m. on October

29. 2023, by shoving her, hitting her in the eye with a lemon, trying to pour Nyquil in her eye, and

punching her so hard with a closed fist that she fell backwards into the bathtub. Defendant also

broke her cell phone and confiscated her vehicle keys to prevent her from obtaining help. Garcia

had numerous injuries that were visible to police, including bruises on her arm and shoulder. Several

hours later, defendant appeared at th_eresidence of some of Garcia's family members and began

banging on the windows and doors, demanding to see his children. Defendant then forced

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his way into the residence by breaking through a locked door. After he entered the residence, .he

shoved Garcia·s relative, Juan Carlos, who fell down 10 steps into the basement. Carlos the_n returned

upstairs and fought with defendant to keep him out of the house. During this struggle, : ' ,

another door inside the residence was broken.

,i 6 . The State also averre. d that defendant had a 2011 conviction of domestic battery..a 201 .4

conviction of manufacturing/delivery of cannabis, 2015 and 2018 convictions of possession of a

controlled substance, and a 2017 conviction of misdemeanor criminal damage to propert;r.

7 The State asserted that defendant posed a real and present threat to the safety of individuals

involved in these cases and that there were no conditions that could mitigate this threat, because

defendant had a history of violating court orders. For instance, defendant failed to appear in court

multiple times in case No. 1 l -CM-1548 and was unsuccessfully discharged from probation and

sentenced to jail i.n that case; defendant failed to appear several times in case Nos. 14-CF-l 549

and 15-CF-1445, after which he was unsuccessfully discharge from probation and sentenced to

imprisonment; and he failed to appear in case No. 17-CM-1399 and either failed or missed se eral

standardized drug screenings that were ordered in that case. The State also argued that defendant

was a danger because his behavior in the instant cases showed that he was so determined to get to

Garcia following the incident alleged in case No. 23-CF-2319 that he followed her to another

residence later in the day.

,i 8 In response, defense counsel argued that defendant had only one prior conviction of a ' dangerous offense-in 2011-was not presently on probation, had no access to weapons, and had

nothing else in his record that was dangerous or violent. Counsel asserted that defendant struggled

with substance abuse and that his threat to the victims in this case would be mitigated by putting

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him on house arrest, ordering him to attend inpatient treatment, requiring standardized drug testing,

or ordering him to wear a Secure Continuous Remote Alcohol Monitor (SCRAM) bracelet.

1 ,9 The circuit court ordered defendant detained, finding by clear. and convincing evidence that

the proof was eyident and.the presumption great that defendant committed the offenses of home

invasion, domestic battery, criminal damage to property, and trespass to residence. It based its

conclusion on the sworn police synopsis, the parties' proffers, the information contained in the

public safety assessment report, and the State's petitions. The court also stated that it relied on the

nature and circumstances of defendant's offenses, as defendant was violent and caused visible

injuries to Garcia nd then later caused severe injury to Carlos after breaking into Garcia's family

members' residence. The court also .found that defendant posed a real and present threat to the

safet.yof the individuals invol:ved in these cases and the community and that no less restrictive

conditions could mitigate the threat.

,r 10 Thereafter, defendant timely appealed both decisions, using the form notice of appeal

promulgated under Illinois Supreme Court Rule 606(d) (eff. Oct. 19, 2023). On December 14,

2023, the State filed a motion to dismiss the appeal in each case, arguing that defendant failed to

state his grounds for relief in each respective notice of appeal. On December 26, 2023, the Office

of the State Appellate Defender (OSAD) responded. We ordered the motions taken with the case

and consolidated the cases on appeal on January 2, 2024. On January 3 and 8, 2024, OSAD

submitted separate lllinois Supreme Court Rule 604(h) (eff. Dec. 7, 2023) memoranda. On January

18, 2024, the State submitted its memorandum opposing defendant's appeals.

,r 11 II. ANALYSIS

112 A. Motions to Dismiss the Appeals

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113 Preliminarily, we address the State's arguments that we should dismiss the appeals because

defendant did not, as required by Rule 604(h), describe in his notices of appeal the relief requested.

We decline to dismiss the appeals on this basis, as the defect is not jurisdictional. See, e.g., People

v. Presl y,

; People v. Wetzel-Connor,

,1 18.

114 B. Forfeiture and Abandonment

1 15 As a threshold matter, the parties address forfeiture and ineffective assi.stance of counsel

in their memoranda and response, asserting that defendant failed to raise before the circuit court

his claims that (1) the State failed to prove that he committed a detainable offense in case No. 23-

CF-2323, (2) the detention orders from these appeals are duplicative and one should be dismissed,

and (3) the no-contact order imposed as a condition of detention was improper. In the notices of

appeal, defendant also checked boxes asserting that the State failed to prove by clear a1_1d

convincing evidence that he posed a real or present threat to the safety of any person or the

community and that no conditions of release could mitigate this threat. These issues were not

elaborated on in the notices of appeal and were not addressed in OSAD's memoranda. 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 a sound body of precedent.' '' Wetzel­

Connor,

(quoting People v. Holmes,

).

16 We do not think it unreasonable that defendant did not previously raise the arguments

introduced in OSAD's memoranda before the circuit court, given that the State filed its petitions

when the procedures and provisions at issue were recently enacted, the cases now relied on by the

parties were not yet decided, and defendant quickly initiated this appeal. Nor does applying

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forfeiture to those issues in the memo anda serve the interest of creating or maintaining a sound

body of precedent. As such, we are inclined to relax forfeiture in this case, as it raises important

issues in the developing. body of law under this new statutory regime. We will not, however, ' '

address the issues raised only in the notices of appeal and not included in OSAD's memoranda. ''

See P_eople v. Forthenberry,

, ,r,r 41-42 (finding that OSAD's

memorandum controls the issues addressed on appeal); People v. Rollins,

,

,r 22 (finding defendant abandoned those Rule 604(h) claims raised in the notice of appeal but not

addressed in OSAD's memorandum). However, regardless of forfeiture, defendant's claims raised

in the memoranda fail because, as the following will show, there is no enor. See People v. Bannister,

(2008) (noting that the first step in a plain-error analys_is is to determine whether

error occurred at all, because, if there was no enor, there can be no plain error); People v. Easley,

, 32_9 (2000) ("[l]t is.not incompetence of counsel to.refrain from raising issues which,

in his or her judgment, are without merit, unless counsel' appraisal of the merits is patently wrong.");

see also People v. Ivory,

(1991) (finding no ineffective assistance of counsel

because there was no error).

,r 17 C. Detainable Offense

,r 18 Defendant contends that the State failed to prove that he committed a detainable offense in case No. 23-CF-2323, because it failed to present clear and convincing evidence of every element

of home invasion..We reject defendant's argument.

,r 19 . The Act amended th.e Code by abolishing traditional monetary bail in favor of pretrial relea&e

on personal recognizance or with conditions ofrelease. See 725 ILCS 5/110-1.5, 110-2(a) (West 2022).

Section 110-6.1 (e) of the Code presumes that all persons charged with an offense are eligible for

pretrial release. Id § 110-6.1(e). However, a defendant's pretrial release may be denied

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in certain statutorily limited situations (qualifying offenses). Id, §§ 110-2(a), 110-6.1. Upon 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 the defendant ·: ' •

has commi:tted a detainable offense, that the defendant's pretrial release poses a real and present threat

to the safetl of any person or the community or a flight risk, and that less restrictive conditions would

not avoid the real and present threat to the safety of any person or the com unity and/or pr vent the

defendant's willful flight from prosecution. Id. § 110-6.l(e), (f)._

120 If the circuit court finds that the State proved a r e.8a l:1 1 pre_sent threat to the safety of any

person or the community or the defendant is likely to flee to avoid prosecution, the circuit court

must determine which pretrial release conditions, "if any, will reasonably ensure the appearance ' '

of [the] def ndant as required or the safety of any other person or the community and.the likelihood

o( co_mpliance by the defendant with all the conditions of pretrial release." Id. § 110-5(a).

However, if the court determines that the defendant should be detained, the court must make

written findings summarizing the reasons for detention, including why less restrictive conditions

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

the specific articulable facts of the case, or prevent the defendant's willful flight from prosecution.

Id.§ 110-6.l(h)(l).

121 Our standard of review is twofold. We review under the manifest-weight-of-the-evidence

standard the circuit court's factual findings. People v. ,Trottier, 2023 IL App (2d)2303 l 7, 13. A

finding is against the manifest weight of the evidence only when the finding is unreasonable. In re

Jose A.,

. We review for an abuse of discretion the circuit court's

ultimate determination regarding pretrial release. Trottier,

. An

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abuse of discretion occurs only when the circuit court's decision is unreasonable. People v.

Williams,

, ,r 52.

,r 22 According to defendant, the State failed to present any evidence that he intentionally

caus.ed injury to Carlos after he broke into a residence at 910 Sarah Lane in Aurora. As charged. , .a

person commits home invasion where he or she knowingly, and without authority, enters .the dwelling

of another knowing there is an occupant present and intentionally causes an injury to someone therein.

720 ILCS 5/19-6(a)(2) (West 2022).

,r 23 The State's proffer related that defendant follo ed Garcia to an Aurora resid nce hours after an initial domestic dispute. While there, defendant began banging on the win4ows and doors

of the residence, demanding to see his children. Ultimately'.he forced his way int9. the h9me by

breaking through a locked door. Once inside, defendant pushed C los hard enou h that he fell

down 10 steps into the ba ement of the home. After Carlos got up, he fought.with defend t to keep

him out of the house; in this struggle, an interior door was also broken. Defendant argues that, at

the hearing, the State offered "no evidence at all of injury." However, the police synopsis ind cated

that Carlos may have suffered a concussion, as he was vomiting upon their arrival. Carlos was

examined by paramedics and signed a medical release; however, he stated that he would go to the

hospital later that day. The circuit court indicated in its findings that it considered both the State's

proffer and the police synopsis in making its determination. It is not against the manifest weight

of the evidence, based on this information, for the circuit court to find that the State met its burden

to show that defendant satisfied every element, including the injury prong, of home invasion.

Accordingly, we conclude that the circuit court did not err in determining that defendant committed

a qualifying offense, which resulted in his detention.

24 D. Duplicative Trial Court Orders

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125 Next, defendant contends that the circuit court's detention orders in case Nos. 23-CF-23,19

and 23-CF-2323 were duplicati e and one should be vacated because it does not meet th

requireme ts of section 110-6.l(d)(2). We find defendant's interpretation of section 110-6(d)

unpersuasive.

26 We review de novo issues of statutory interpretation. People v. Minssen,

. When interpreting a statute, our objective is to .scertain and effectuate the

legislature's intent.

The most reliable indicator of legisl'!-tive intent is the plai_n and o dinary

meaning of the statute's langua_. ge; however, we view the statute in its entirety. Id.. Accordingly,

"we 'may consider the reason and necessity for the.law. the evils it was intended to remedy, and . .

its ultimate aims.' " (Internal quotation marks omitted.)

(quoting People v. Jones,

).

127 Here, defendant had two cases pending contemporaneously in the circuit court .(case Nos. 23-CF-2319 and 23-CF-2323). In each case, the State filed a petition to detain, Defendant • . ·- now argues that one of the State's petitions to detain was a ''second petition" within the meaning

of section 110-6.1(d)(2) and that, because the petitions were identical-the later-filed petition did

not offer "any new facts not known or obtainable at the time of the filing of the previous petition"­

one of the detention orders should be vacated. 725 ILCS 5/110-6. l(d)(2) (West 2022). In turn, the

State asserts that each case was separate, so it properly filed an initial petition to detain in each

case. We agree with the State.

We conclude that amended article 110 of the Code refers to a defendant's separate individual case

and the actions that may be taken in each case. We find that the legislature intended this·result

based on a holistic reading of the' Code. For instance, the Code states that a petition to detain may

be filed after the defendant's first appearance before a judge. 725 ILCS 5/110-6.l(c)(l)·(West

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2022); People v. Clark,

, ,i,i 19-20. The first appearance is, generally,

something that happens once per case after the case is initiated. See People v. Budzynski, 333 Ill. ' '

App. 3d 433, 439 (2002) (noting that, as with other crir;ninal cases, when a new criminal contempt • '

proceeding is filed, a first appearance ocsurs where the defendant is advised of the charges agai_nst

him, bond is set, and counsel is appointed); see also Ill. S. Ct. R. ?04 (eff. Sept. 18. 2023) (noting

in traffic offenses the first appearance must occur within the first 60 days of a case). Logicall , it

follows that the potential to file an initial petition to detain is triggered by the inception of a new

case, not any pending cases a defendant may have. That is, a petition to detain may be filed by the

State, in line with timing requirements wider the Code, in any new case, and the rules regarding a

"second or sub equent" petition apply only where an initial petition has already been filed within

th.e same case. It would be illogical to allow only one initial bond petition per defendant, when one

defendant may have multiple cases pending, e,ven in multiple jurisdictions. A cordingly, we find

that sectio 110-6. l (d)(2) refers to the filing of a "second 0! subse9uent petition" in the .same_case.

725 ILCS 5/110-6.l(d)(2) (West 2022). Because the filings here occurred in separate c ses, they

were not duplicative and, thus, both or ers will remain undisturbed.

,i 28 E. Detention Conditions

,i 29 Finally, defendant argues that the circuit court's no-contact order is not an authorized

condition of detention under the Code. We consider de novo questions regarding statutory

authority. People v. Alexander,

. 957 (2007). We conclude that the Code

explicitly authorizes the imposition of a no-contact order as a condition of detention.

,i 30 The Code, as amended, takes a special interest in protecting crime victims. To effectuate

this end, section 110-6. l (m)(2), specifically, states that, "[i]f the defendant is denied pretrial ' .

release, the court may impose a no contact provision with the victim or other interested party that

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shall be enforced while the defendant remains in custody." 725 ILCS 5/l 10-6.l(m)(2) (West

2022).

,r 31 Thus, the Code explicitly authorizes the circuit court to impose a no-contact provision

during a defendant's det_ention. Accordingly, the ci_rcuit court did not exceed i_tstatutory authority

by imposing such a condition here.

if 32 III. CONCLUSION

,i 33 We affirm the judgment of the circuit court of Kane County.

,r 34 Affirmed.

,r 35 PRESIDING JUSTICE McLAREN. specially concurring:

36 The majority states: ''We will not, however, address the issues raised only in he notice of

appeal and not included in OSAD's memoranda. See People v. Forthenberry.

, ii 41-42 (finding that OSAD's memorandum controls the issues addressed on appeal)."

Supra 16. I.submit that the ra .tio decidendi in Forthenberry is 'nuanced and . contains at. .least . one

exception Uwisdiction): "II

"As - matter of practicality and considering the long-standing principles of

appellate procedure, we find that, if a memorandum is filed, it will be the controlling

document for issues or claims on appeal and we will not reference the notice of appeal to

seek out further arguments not raised in the memorandum, except in limited circumstances.

e.g., to determine jurisdiction. The memorandum must contain some form of argument for

each issue presented, along with justification for claiming entitlement to relief-like

references to the record, evidence presented, or, if possible, legal authority. See Ill. S. Ct.

R. 341(h) (eff. Oct. 1, 2020). The memorandum cannot simply reference or direct the court

to the notice of appeal for its argument.

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. 'Rule 604(h) requires the notice of appeal to include a description of the r lief to

be equested "and the grounds for the relief requested."' (Emphasis in original.) [People

v.] Inman, ,2023 IL App 4th) 230864, ii 1 (quoting Ill. S. Ct. R. 604(h)(2) (eff. S pt. 18,

2023)). Accordingly, 'some form of argument is required, along with justification for

claim. ing entitlement to relief-like references to the. record, the evidence prese. nted, or, if . '

pos ible, legal authority.'

A reviewing court 'caQnot be expected to form4late an argument

for defendant out of whole cloth.' Id. 13. 'The appellate court is ,not a depository in

which the appellan, may dump the burden of argument and .research.' Thrall Car

Manufacturing Co. v. Lindquist,

(1986). As a reviewing court,

we are entitled to have the issues clearly defined, pertinent author.ity cited,,an,d a cohesive

legal argument presented. Walters v. Rodriguez, 2011 IL App (1st) 10 488, 5." (Emphasis

added.) People v. Forthenberry,

, ,i 42-43.

,i 37 I submit that checked box_esin the notice of appeal are the equivalent of the issues raised

in an appellate brief. See Ill. S. Ct. R. 341(h)(3) (eff. Oct. 1, 2020). As such, the issues are claims

of error. If there is additional elaboration, then there might be additional argument, citation to

authority, or something more specific than the conclusory claim in the text accompanying the

checked box. I believe that we have the authority to view the record to see if there is an

insufficiency or related error. See First Capitol Mortgage Corp. v. Talandis Construction Corp.,

(1976) ("We do not feel that a court ofreview should be compelled to serve as

an advocate for the appellee or that it should be required to search the record for the purpose of

sustaining the judgment of the trial court. It may, however, ff justice requires, do so." (Emphasis

added.)).

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.. I ;_ "o

38 If a review of the record shows any evidence to support the jud ment, vis-a-v{s no evidence

to support the judgment then, if there is a failure to cite the record or authority or to make any

cohesive argument, a forfeiture should be declared. This court is not to advocate o_ nb y _ h a l f of any ' ' .

party, as stated repeatedly above. If the notice of appeal and the appellant's memorandum do not ' ' ' . '

fulfill_the_: quir ments involved in an appeal generally, then forfeiture is appropriate. But this

forfeiture is not due to checking a box or insufficient elaboration. Rather it is because we are not

advocates and the appellant has failed to sustain on review one or more of his burdens as to a claim

set forth in the notice of appeal.

,i 39 I have reviewed the record regarding defendant's being a danger to the safety of a person

or the community and whether there is any condition or combination thereof that will allow for

release. There is evidence in the record supporting the judgment. Accordingly, we should declare

a forfeiture due to a failure to cite authority or the record or to make a cohesive argument, and .. '.

because we are not advocates.2 Per Forthenberry, I believe we have jurisdiction. . . .., •:1. •. ·1 . -·,

2Rollins,

, cites Forthenberry for the proposition of abandonment

as an alternative default. The majority then repeats the Rollins misnomer of abandonment. Curiou

ly, forthenberry does not contain the term "abandonment." Rather, it discuss_esth e default as a

forfeiture as I set forth i my special concurrence. I submit that Rollins goes oo far in concluding

this is an abandonment, rather than a forfeiture, as I have argued herein.

- 13 - People v. Acosta,

Decision Under Review: Appeal from the Circuit Court of Kane County, Nos. 23-CF- 2319, 23-CF-2323; the Hon. Elizabeth K. Flood, Judge, presiding.

Attorneys James E. Chadd, Carolyn R. Klarquist, and Michael H. for Orenstein, of State Appellate Defender's Office, of Chicago, for Appellant: appellant.

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