NOTICE

This Order was filed under FILED NO. 4-23-1582 March 20, 2024 Supreme Court Rule 23 and is Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Rock Island County NICHOLAS McCARTHY-NELSON, ) No. 23CF953 Defendant-Appellant. ) ) Honorable ) Norma Kauzlarich, ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court. Justices Zenoff and DeArmond concurred in the judgment.

ORDER ¶1 Held: The trial court erred in granting the State’s petition to deny defendant pretrial release where the court failed to comply with the procedural requirements of section 110-6.1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-6.1 (West 2022)).

¶2 Defendant, Nicholas McCarthy-Nelson, appeals the trial court’s judgment

granting the State’s petition, filed pursuant to section 110-6.1 of the Code of Criminal Procedure

of 1963 (Code) 725 ILCS 5/110-6.1 (West 2022)), to deny him pretrial release. On appeal,

defendant argues, (1) the court erred in denying him pretrial release where it failed to hold a

hearing on the State’s petition within 48 hours of his initial appearance, (2) the court erred in

holding a hearing on the State’s petition without ensuring defendant’s physical presence in court,

and (3) the State failed to prove by clear and convincing evidence that (a) the proof was evident or presumption great he committed the charged offenses, (b) he posed a threat to the safety of

any person or the community, and (c) no combination of conditions could mitigate any potential

threat he posed. We agree with defendant’s first argument, vacate the detention order on that

basis, and remand for further proceedings.

¶3 I. BACKGROUND

¶4 On December 24, 2023, defendant was arrested and charged with armed violence

(720 ILCS 5/33A-2(a) (West 2022)), possession of a defaced firearm (id. § 24-5(b)), unlawful

possession of a weapon by a felon (id. § 24-1.1(a)), and unlawful possession of

methamphetamine (720 ILCS 646/60(a), (b)(2) (West 2022)). That same day, defendant made

his initial appearance in court. At the hearing, the trial court heard testimony from a police

officer and found probable cause to believe defendant committed the charged offenses.

¶5 Also on December 24, 2023, the State filed a verified petition pursuant to section

110-6.1 of the Code (725 ILCS 5/110-6.1 (West 2022)) seeking to deny defendant pretrial

release. Over defendant’s objection, the trial court granted the State’s motion to continue the

proceedings to December 27, 2023, for a hearing on its petition.

¶6 On December 27, 2023, the trial court conducted a hearing on the State’s petition

to deny defendant pretrial release. We discuss only the facts relevant to the dispositive issue

raised on appeal. Defendant argued the court erred in continuing the hearing to December 27

because section 110-6.1(c)(2) (id. § 110-6.1(c)(2)) mandated that, under the circumstances, the

hearing was to be conducted within 48 hours of his initial appearance in court on December 24.

In rejecting defendant’s argument, the court stated the following:

“THE COURT: As to your first argument about an immediate hearing, I

will note for the record that December 24th is a Sunday, so it’s a weekend, and

-2- then December 25th and 26th were holidays. So as to the—your argument on that

basis, the Court believes that the hearing is being timely heard, as today’s the first

day—workday back from the weekend and the holiday.”

The court ultimately entered a written order granting the State’s petition to deny defendant

pretrial release.

¶7 Defendant filed a timely notice of appeal utilizing 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.

Dec. 7, 2023). On the form notice, he checked the box labeled “Other” and asserted he “was

denied right [sic] to immediate hearing and right [sic] to hearing within 48 hours upon granting

of State’s motion to continue.” Defendant also filed a memorandum in support of his notice of

appeal, in which he raised, in relevant part, the same argument as above. The State requested and

obtained leave to file a late memorandum in opposition to defendant’s claims of error.

¶8 II. ANALYSIS

¶9 On appeal, defendant argues, in pertinent part, that the trial court erred in granting

the State’s petition to deny him pretrial release by failing to comply with the timing requirements

of section 110-6.1(c)(2) of the Code. 725 ILCS 5/110-6.1(c)(2) (West 2022). He asserts the plain

language of the statute contains no exceptions for holidays or weekends for purposes of

computing the applicable 48-hour deadline. Defendant further contends the appropriate remedy

is for this court to “reverse the trial court’s detention order and order that [he] be released from

custody.” Resolution of defendant’s claim requires us to interpret the language of the relevant

statute. Although it filed a memorandum in opposition, the State failed to address defendant’s

untimeliness argument, and so we are left without the benefit of its advocacy on this issue.

-3- ¶ 10 “The cardinal rule of statutory interpretation *** is to ascertain and give effect to

the intent of the legislature.” People v. Maggette,

(2001). “The most reliable

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

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

. “If the statutory

language at issue is clear and unambiguous, a reviewing court must interpret the statute

according to its terms without resorting to aids of statutory construction.” City of Countryside v.

City of Countryside Police Pension Board of Trustees,

, ¶ 35. “It is an

elementary principle of statutory interpretation that no statute should be construed in a manner

which will lead to consequences which are absurd, inconvenient, or unjust.” People v. Partee,

(1988). “[A] court should avoid an interpretation of a statute that would

render any portion thereof meaningless or superfluous.” People v. Wunderlich,

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

review.” Evans,

.

¶ 11 Section 110-6.1 of the Code provides, in pertinent part, that the trial court shall,

upon the filing of the State’s verified petition, “immediately hold a hearing on the petition unless

a continuance is requested. If a continuance is requested and granted, the hearing shall be held

within 48 hours of the defendant’s first appearance if the defendant is charged with *** a Class

X, Class 1, Class 2, or Class 3 felony .” 725 ILCS 5/110-6.1(c)(2) (West 2022). The statutory

language at issue is clear and unambiguous, and we must interpret it according to its terms. See

City of Countryside,

. It clearly requires trial courts to conduct a

hearing on the State’s petition to deny a defendant pretrial release within 48 hours of the

defendant’s initial appearance; it does not exclude weekends or holidays when computing time

deadlines. See 725 ILCS 5/110-6.1(c)(2) (West 2022).

-4- ¶ 12 Here, on December 24, 2023, defendant was arrested and charged with a Class X

felony, a Class 2 felony, and two Class 3 felonies. That same day, defendant made his initial

appearance in court and the State filed a verified petition to deny him pretrial release. At the

initial hearing, the court, over defendant’s objection, granted the State’s request for a

continuance to December 27, 2023, for the detention hearing. At the December 27, 2023,

detention hearing, defendant argued the court erred in continuing the matter beyond the 48-hour

window set forth in section 110-6.1(c)(2) of the Code. The court rejected defendant’s argument,

finding the hearing was timely held because December 25 and 26 were holidays, making

December 27 “the first day—workday back from the weekend and the holiday.”

¶ 13 We agree with defendant that the trial court failed to comply with the timing

requirements of section 110-6.1(c)(2). We note defendant’s memorandum makes no mention of

section 1.11 of the Statute on Statutes. See 5 ILCS 70/1.11 (West 2022) (“The time within which

any act provided by law is to be done shall be computed by excluding the first day and including

the last, unless the last day is Saturday or Sunday or is a holiday as defined or fixed in any statute

*** in this State, and then it shall also be excluded.”). In our research, we have found no

authority that disposes of the question whether the method for calculating deadlines set forth in

the Statute on Statutes should apply in these circumstances. Nonetheless, even if we were to

assume, arguendo, the Statute on Statutes did apply here, we would still find the court erred, as

December 26, 2023, was not “a holiday as defined or fixed in any statute *** in this State.” Id.;

see https://www.illinois.gov/content/dam/soi/en/web/irb/documents/state-holidays.pdf (last

visited on Mar. 15, 2024) (listing December 25, 2023, on the State Holiday Calendar for 2022

and 2023 but not December 26, 2023). Thus, regardless of whether the Statute on Statutes

applies under the circumstances, the court was required to conduct a hearing on the State’s

-5- petition by December 26, 2023. Because it did not do so, it failed to comply with the procedural

requirements of the statute.

¶ 14 Having found the trial court failed to comply with the procedural requirements of

the Code, we must next determine the appropriate remedy. In his memorandum, defendant,

relying on People v. Gatlin,

, asserts we “should reverse the

trial court’s detention order and order that [he] be released from custody.” In Gatlin, we found

the trial court committed second-prong plain error by holding a detention hearing without the

defendant being physically present in court, in violation of section 110-6.1(f)(3.5) of the Code

(725 ILCS 5/110-6.1(f)(3.5) (West 2022). Gatlin,

. We remanded

“the matter for the court to conduct a new detention hearing compliant with the Code.” Id..

Defendant’s reliance on Gatlin is misplaced. First, in Gatlin, we did not order that the defendant

be released from custody, but instead remanded for a new hearing compliant with the Code,

meaning a hearing at which the defendant would be physically present.

Second, even if we

were to assume defendant was asking for the same remedy in Gatlin, i.e., granting a new hearing

in compliance with the Code, we could not effectively grant him relief because the prior

violation of the statute’s timing requirements makes it impossible to now have a timely hearing.

Nonetheless, we must still determine the appropriate relief to grant defendant.

¶ 15 This court, like defendant, has been unable to identify any case discussing the

appropriate remedy when a trial court fails to conduct a timely detention hearing in accordance

with section 110-6.1(c)(2). The most analogous case our research uncovered was People v. Gil,

, which involved the previous version of section 110-6.1 of the Code

(725 ILCS 5/110-6.1 (West 2016)) and an interlocutory appeal filed pursuant to Illinois Supreme

Court Rule 604(c) (eff. July 1, 2017).

-6- ¶ 16 In Gil, the defendant was arrested in February 2019 and charged with sexual

offenses involving a minor. Gil,

. On February 12, 2019, the trial

court conducted a hearing, at which it found probable cause existed to detain the defendant

pretrial and ordered him to be held without bail. Id. ¶ 5. At no point did the State file a verified

petition seeking to deny the defendant bail. Id. The defendant filed an interlocutory appeal

pursuant to Rule 604(c), arguing the court erred in detaining him without bail because

section 110-6.1 authorized trial courts to deny bail only upon verified petition by the State.

Id. ¶ 15. The Gil court agreed, finding the trial court erred in entering a no-bail order where the

State never filed a verified petition as required by section 110-6.1. Id. ¶ 16. The Gil court

acknowledged the trial court’s authority to deny bail, but only “provided the proper procedures

are followed and the necessary findings are made.” Id. ¶ 17. “[I]t is clear that the procedural and

substantive requirements of section 110-6.1 must be and were not followed.” Id. ¶ 18. Having

found the trial court failed to follow the procedural requirements of section 110-6.1, the Gil court

determined the appropriate remedy was to “reverse the order of the circuit court denying [the

defendant] release on bail and remand to the circuit court for the purpose of setting the amount of

bail and other conditions of his release.” Id. ¶ 2.

¶ 17 The facts now before us are somewhat analogous to those in Gil, and, because we

find the reasoning in that case sound, we conclude a similar remedy is appropriate in the instant

case. Here, as in Gil, the trial court erred in denying pretrial release by failing to follow the

procedural requirements of section 110-6.1 of the Code. In this case, the court failed to follow

the timing requirements of section 110-6.1(c)(2). In Gil, the trial court considered the State’s

failure to follow the pleading requirements of section 110-6.1(a). See Gil,

. Because both cases involve the trial court’s failure to comply with the

-7- procedural requirements of section 110-6.1, we find it is appropriate to provide defendant with a

remedy analogous to that provided to the defendant in Gil. It is important to note that the remedy

ordered by the appellate court in Gil deprived the State of an opportunity on remand to file a

verified petition asking the trial court to deny the defendant bail. Id. ¶¶ 2, 19, 21. Instead, the

remedy mandated the trial court to conduct a hearing on remand “for the purpose of setting the

amount of bail and other conditions of his release.” Id. ¶ 2. In other words, the trial court lacked

the authority on remand to enter an order detaining the defendant without bail; the defendant’s

pretrial release on bail, albeit with the imposition of appropriate conditions of release, was a

necessary condition of the remedy awarded by the Gil court. Id. ¶¶ 2, 19, 21.

¶ 18 Here, we hold the appropriate remedy for the State’s and trial court’s failure to

ensure the detention hearing was conducted in compliance with the timing requirements of

section 110-6.1(c)(2) of the Code (725 ILCS 5/110-6.1(c)(2) (West 2022)) is to remand the case

to the trial court for the purpose of promptly holding a hearing to determine the least restrictive

conditions of defendant’s pretrial release. See Gil,

. In so

holding, we note that if we were to allow the State to again petition the court to deny defendant

pretrial release on remand, it would have little incentive to comply with the timing requirements

of the statute in other cases. There would be no consequence for its failure to comply with the

unambiguous language of the statute, and thus would render nugatory the statute’s timing

requirement. See, e.g., Wunderlich,

(“[A] court should avoid an

interpretation of a statute that would render any portion thereof meaningless or superfluous.”).

¶ 19 We further find the remedy set forth above to be appropriate because it places

defendant in the same position he would have been in had the State not filed a petition to deny

him pretrial release. Under the statutory scheme, when the State does not file a petition, the

-8- defendant is released pretrial subject to the conditions the trial court is required to impose

pursuant to sections 110-5(c) and 110-10(a) of the Code. 725 ILCS 5/110-5(c) (West 2022)

(“The court shall impose any conditions that are mandatory under subsection (a) of Section 110-

10.”);

§ 110-10(a)(1)-(6) (listing the mandatory conditions of pretrial release). In addition to

the mandatory conditions, the court also has the discretion to impose a number of additional

conditions, so long as they are “the least restrictive conditions or combination of conditions

necessary to reasonably ensure the appearance of the defendant as required or the safety of any

other person or persons or the community.” Id. § 110-5(c); see id. § 110-10(b)(0.05)-(9) (listing

the discretionary conditions of release). Thus, at the hearing on remand, the court will be

required to impose the mandatory conditions listed in section 110-10 and it will have the

discretion to impose additional conditions that it finds necessary to ensure defendant’s

appearance as required for the safety of the community.

¶ 20 III. CONCLUSION

¶ 21 For the reasons stated, we reverse the trial court’s judgment and remand with

directions that the court promptly set the case for a hearing to determine the least restrictive

conditions of defendant’s pretrial release.

¶ 22 Reversed and remanded with directions.

-9-