# People v. Watkins-Romaine

> Illinois Supreme Court · January 24, 2025 · 2025 IL 130618

URL: https://www.frixlaw.com/law-library/cases/10787193

## Case

- **Court:** Illinois Supreme Court
- **Decided:** January 24, 2025
- **Citations:** 2025 IL 130618
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10787193

## How later opinions describe it (automated extraction)

- concluding “the legislature has sanctioned, or at least declined to prohibit,” the State from petitioning to detain defendant who seeks remove condition of paying monetary bail
- noting that in the event of a conflict, a court’s oral statement controls over the written judgment

## Opinion text

2025 IL 130618

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

(Docket No. 130618)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
DAMARCO WATKINS-ROMAINE, Appellee.

Opinion filed January 24, 2025.

JUSTICE NEVILLE delivered the judgment of the court, with opinion.

Chief Justice Theis and Justices Overstreet, Holder White, and Cunningham
concurred in the judgment and opinion.

Justice Rochford specially concurred, with opinion, joined by Justice O’Brien.

OPINION

¶1 This appeal involves article 110 of the Code of Criminal Procedure of 1963
(Code) (725 ILCS 5/art. 110 (West 2022)), as amended by Public Act 101-652 (eff.
Jan. 1, 2023) 1 and Public Act 102-1104, § 70 (eff. Jan. 1, 2023). Specifically, this
case involves the transition of defendants whose cases commenced prior to the
effective date of the amended Code, from a pretrial system with monetary bail to
the current system where monetary bail is abolished.

¶2 Defendant, Damarco Watkins-Romaine, was ordered released pending trial
months before the effective date of the amended Code subject to a $350,000 bail.
Watkins-Romaine never satisfied the amount set for monetary bail. After the
amended Code became effective, Watkins-Romaine petitioned for release,
contending that the financial condition of release was improper under the amended
Code. The State responded with a petition to detain Watkins-Romaine under the
amended Code.

¶3 The issue presented in this case is whether the State may file a petition to detain
a defendant pretrial, in response to a defendant’s petition to remove the condition
of monetary bail, where the defendant had been ordered released but could not
satisfy the previously set monetary bail. The Cook County circuit court heard the
competing petitions and denied Watkins-Romaine’s petition for release. The
appellate court reversed, holding that “the legislature did not intend to allow the
State to file a petition for pretrial detention under the circumstances of defendant’s
case and that the State’s petition for detention was untimely.” 2024 IL App (1st)
232479, ¶ 53.

¶4 We allowed the State’s petition for leave to appeal pursuant to Illinois Supreme
Court Rule 315 (eff. Dec. 7, 2023). For the following reasons, we reverse the
judgment of the appellate court.

¶5 I. BACKGROUND

¶6 Watkins-Romaine was arrested when he turned himself in on August 31, 2023.
Watkins-Romaine was charged with five counts of attempted first degree murder
(720 ILCS 5/8-4(a), 9-1(a)(1) (West 2022)), one count of aggravated battery with

1
Public Act 101-652 is commonly referred to as the Safety, Accountability, Fairness
and Equity-Today (SAFE-T) Act or the Pretrial Fairness Act. “Neither name is official, as
neither appears in the Illinois Compiled Statutes or public act.” See Rowe v. Raoul, 2023
IL 129248, ¶ 4 n.1.

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a firearm (id. § 12-3.05(e)(1)), and one count of aggravated discharge of a firearm
(id. § 24-1.2(a)(2)). The charges emerged from the State’s allegation that, on
November 23, 2022, Watkins-Romaine shot at the victim while both were driving
their vehicles on Interstate 57 (I-57) in Chicago.

¶7 A. Circuit Court

¶8 On September 1, 2023, the circuit court held a hearing to determine whether
Watkins-Romaine should be released from custody while he awaited trial. The
State’s position was that Watkins-Romaine was “mandatory no bail” pursuant to
section 110-4(a) of the Code (725 ILCS 5/110-4(a) (West 2020) (“All persons shall
be bailable before conviction, except the following offenses where the proof is
evident or the presumption great that the defendant is guilty of the offense: ***
offenses for which a sentence of life imprisonment may be imposed as a
consequence of conviction ***.”)). 2 The defense asked the circuit court to set a
reasonable bond.

¶9 At the hearing, the State proffered the following. The victim was followed by a
white SUV from a residence she was at to I-57. The victim began to merge onto I-
57 and observed the white SUV behind her. The victim heard multiple gunshots
and her window shatter. The victim looked over and saw the white SUV two lanes
over, with no vehicles between her vehicle and the white SUV. The victim observed
a Black male driving the white SUV. No other occupants were in the vehicle. The
victim sustained five gunshot wounds.

¶ 10 Officers obtained the white SUV’s license plate and learned it was registered to
Watkins-Romaine’s girlfriend. Approximately 2½ hours after the shooting, officers
located the white SUV at Watkins-Romaine’s girlfriend’s residence. A search
warrant was executed after the vehicle was towed. Officers recovered a live 9-
millimeter round from the driver’s side floorboard, which matched the brand and
caliber of the rounds found at the crime scene. The white SUV tested positive for
gunshot residue, and Watkins-Romaine’s DNA was found inside the vehicle.

Although the legislature carried out a repeal of section 110-4 in Public Act 102-1104,
2

§ 75 (eff. Jan. 1, 2023), those amendments were held in abeyance while this court
considered the amendments’ constitutionality in Rowe v. Raoul, 2023 IL 129248, and the
amendments ultimately took effect on September 18, 2023. See id. ¶ 52.

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Watkins-Romaine was a Firearm Owner’s Identification card holder. He purchased
two boxes of ammunition on November 6, 2022, and the ammunition was the same
brand and caliber as that found at the scene of the shooting and inside the white
SUV.

¶ 11 Officers also obtained a warrant for Watkins-Romaine’s phone number. The
officers learned that Watkins-Romaine’s phone had received calls around the time
of the shooting and that cell site data indicated that his phone was in the vicinity of
the shooting at the time of the shooting. Watkins-Romaine was arrested in January
2023 on an unrelated matter, and at the time of the arrest, he possessed a phone
with the same number linked to the cell site data. Officers searched the phone and
found a message from August 2022 stating that he had multiple firearms and would
do harm on 99th Street every day.

¶ 12 The State asked the circuit court to order Watkins-Romaine held without bail.
The defense argued that the State failed to establish that the proof was evident and
the presumption great that Watkins-Romaine committed the charged offenses. The
defense pointed to the lack of an identification, the weakness in the DNA evidence
because Watkins-Romaine’s DNA would be expected to show up in his girlfriend’s
car, especially because the two shared two minor children, and the police officers’
failure to locate the weapon. The defense stated that Watkins-Romaine was a
“working individual” and a “great father” who provided for his two minor children.
Watkins-Romaine did not have a criminal background and was expected to start a
job with the Chicago Transit Authority on the following Tuesday.

¶ 13 The circuit court found that there was “a lot of circumstantial evidence of the
nexus between” Watkins-Romaine and the victim. The court found that the State’s
evidence was “not enough” to establish that the proof was evident and the
presumption great that Watkins-Romaine committed the charged offenses.
However, the court also found that the State had proffered “compelling
circumstantial evidence,” enough to warrant a “significant bond in this case.” The
court set bail at a “substantial” $350,000-D “to assure the safety of the public in
light” of the State’s proffer. Watkins-Romaine was never able to post bail.

¶ 14 On September 18, 2023, the amendments to the Code went into effect. See
Rowe v. Raoul, 2023 IL 129248, ¶¶ 4, 52. Among other provisions, the Code

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abolished monetary bail. See Pub. Act 101-652, § 10-255 (eff. Jan. 1, 2023) (adding
725 ILCS 5/110-1.5) (“the requirement of posting monetary bail is abolished”).

¶ 15 On December 7, 2023, Watkins-Romaine filed a petition for release under the
Code. On December 13, 2023, at the first hearing after Watkins-Romaine filed his
petition, the State filed a petition for pretrial detention. A hearing was held on the
competing petitions the same day.

¶ 16 The State largely relied on the same evidence that it presented at the September
1, 2023, hearing. The State added that the victim was leaving her boyfriend’s
residence, in the block of 99th Street and South Lowe Avenue, when the white SUV
began following her. Watkins-Romaine’s cell phone messages indicated that he had
a “prior beef” with the victim’s boyfriend. One message referenced Thanksgiving
and taking revenge, while another message stated that Watkins-Romaine was going
to shoot up a house on 99th Street. With respect to the DNA evidence, the State
clarified that Watkins-Romaine’s DNA was found on the steering wheel, gear
shifter, interior door handle, and five out of six cigarettes in the center console.

¶ 17 The circuit court denied Watkins-Romaine’s petition to be released. The court
found that the State had met its burden of establishing by clear and convincing
evidence that the proof was evident and the presumption great that Watkins-
Romaine committed the charged offenses.

¶ 18 Watkins-Romaine filed a notice of appeal on December 19, 2023. In the notice,
Watkins-Romaine raised four issues: (1) the State failed to meet its burden of proof
to show he committed the charged offenses, (2) the State failed to meet its burden
of proof to show he poses a real and present threat to the safety of any person or the
community, (3) the State failed to meet its burden of proof to show that no condition
or combination of conditions could mitigate the real and present threat to the safety
of any person or the community, and (4) the circuit court abused its discretion in
ordering he remain in detention because the order was contrary to the prior
determination that he should be released. Watkins-Romaine did not challenge the
timeliness of the State’s petition to deny him pretrial release.

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¶ 19 B. Appellate Court

¶ 20 The appellate court reversed the circuit court’s judgment (2024 IL App (1st)
232479, ¶ 3), holding that “the legislature did not intend to allow the State to file a
petition for pretrial detention under the circumstances of [Watkins-Romaine’s] case
and that the State’s petition for detention was untimely” (id. ¶ 53). The appellate
court primarily relied on the fact that Watkins-Romaine had already been ordered
released pursuant to electronic monitoring and a large monetary bail. Id. ¶ 51
(explaining that “nothing in the amended Code indicates that the State should get a
do-over”). The court remanded the case to the circuit court to “determine if there
are conditions available that will reasonably ensure the appearance of defendant,
the safety of any other person, and the likelihood of compliance by defendant with
all the conditions of pretrial release.” Id. ¶ 53 (citing 725 ILCS 5/110-5(e) (West
2022)).

¶ 21 This court allowed the State’s petition for leave to appeal pursuant to Illinois
Supreme Court Rule 315(a) (eff. Dec. 7, 2023).

¶ 22 II. ANALYSIS

¶ 23 The Code sets forth the procedures for the circuit court to follow when an
individual, such as Watkins-Romaine, who was ordered released subject to a
significant bond that was never satisfied, seeks to have the conditions of bond
reopened following the abolition of monetary bail. The central issue here is whether
the State may file a petition to detain a defendant pretrial, in response to a
defendant’s petition to remove the condition of monetary bail, where the defendant
had been ordered released but could not satisfy the previously set monetary bail.
An additional issue that merits our consideration is whether, assuming the State
may respond to a defendant’s petition for release, the circuit court is permitted to
deny a defendant’s petition for release.

¶ 24 A. Standard of Review

¶ 25 The parties’ arguments require us to interpret several provisions of the Code.
“This court has frequently restated the basic principles of statutory interpretation.”

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People v. Lane, 2023 IL 128269, ¶ 11. “The most fundamental rule in statutory
construction is to give effect to the legislative intent.” Murray v. Chicago Youth
Center, 224 Ill. 2d 213, 235 (2007). “The language of the statute is the best
indication of the legislature’s intent.” Id. “If the language of a statute is clear, this
court must give effect to its plain and ordinary meaning without resort to other aids
of statutory construction.” Id. We review issues of statutory interpretation de novo.
Doe v. Burke Wise Morrissey & Kaveny, LLC, 2023 IL 129097, ¶ 20.

¶ 26 B. Watkins-Romaine Forfeited the Current Claim

¶ 27 The threshold issue we must decide is whether Watkins-Romaine preserved the
issue for review. To preserve the issue for review, Watkins-Romaine needed to
object to the State’s petition to deny pretrial release and include the issue in his
notice of appeal. See People v. Bush, 2023 IL 128747, ¶ 70 (explaining that a
defendant must make a contemporaneous objection to preserve an issue for review);
Ill. S. Ct. R. 604(h)(2) (eff. Dec. 7, 2023) (“The Notice of Appeal shall describe the
relief requested and the grounds for the relief requested.”). 3 Watkins-Romaine did
not object to the State’s petition to deny pretrial release. Watkins-Romaine also did
not include this contention of error in his notice of appeal.

¶ 28 In light of this forfeiture, Watkins-Romaine asks this court to either analyze the
issue under a plain error rubric or to excuse the forfeiture due to the newness of the
amended Code and the caselaw interpreting it. We need not decide which suggested
avenue to take because the result would be the same under either approach. We may
review unpreserved issues for plain error. See People v. Sebby, 2017 IL 119445,
¶ 48; Ill. S. Ct. R. 615(a) (“Plain errors or defects affecting substantial rights may
be noticed although they were not brought to the attention of the trial court.”). There

3
There has been a procedural change in our rules governing the preservation of an issue
for review in a case adjudicating a petition to grant or deny pretrial release. Illinois Supreme
Court Rule 604(h)(2) (eff. Apr. 15, 2024) now provides: “As a prerequisite to appeal, the
party taking the appeal shall first present to the trial court a written motion requesting the
same relief to be sought on appeal and the grounds for such relief. *** Upon appeal, any
issue not raised in the motion for relief, other than errors occurring for the first time at the
hearing on the motion for relief, shall be deemed waived.”). Because Watkins-Romaine
filed his notice of appeal prior to April 15, 2024, he was not subject to this stricter
preservation requirement.

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are two approaches to plain error relief, with one focusing on the impact of the error
on the proceedings and the other focusing on the seriousness of the error itself. See
People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). Under either approach, a
defendant must establish first that a “clear or obvious” error occurred. Bush, 2023
IL 128747, ¶ 71. Therefore, we first determine whether Watkins-Romaine has
established that the trial court erred in considering the State’s petition to deny
pretrial release. And, if the court did not err in considering the State’s responsive
petition, whether the court erred in denying Watkins-Romaine’s petition for release
when Watkins-Romaine had previously been granted pretrial release pursuant to a
$350,000 bail.

¶ 29 C. The Code as Amended by Public Acts
101-652 and 102-1104, Commonly Known as the
Pretrial Fairness Act

¶ 30 Public Act 101-652 abolished monetary bail in Illinois. 725 ILCS 5/110-1.5
(West 2022) (“the requirement of posting monetary bail is abolished”). Now, every
defendant is eligible for release before conviction, and each defendant is presumed
to be entitled to release on personal recognizance. Id. § 110-2(a). The State has the
burden to prove by clear and convincing evidence that any condition of release is
necessary. Id. § 110-2(b). To warrant the denial of pretrial release of an individual
charged with attempted first degree murder, such as Watkins-Romaine, the State
has to prove by clear and convincing evidence that (1) “the proof is evident or the
presumption great that the defendant has committed” the charged offense (id.
§ 110-6.1(e)(1)), (2) “the defendant poses a real and present threat to the safety of
any person or persons or the community” (id. § 110-6.1(e)(2)), and (3) “no
condition or combination of conditions *** can mitigate (i) the real and present
threat to the safety of any person or persons or the community” (id. § 110-
6.1(e)(3)). The Code also sets out timing requirements for the State to petition to
detain a defendant pretrial. Id. § 110-6.1(c) (“A petition may be filed without prior
notice to the defendant at the first appearance before a judge, or within the 21
calendar days *** after arrest and release of the defendant upon reasonable notice
to defendant ***.”).

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¶ 31 The Code limits the State’s ability to petition to detain a defendant who has
previously been ordered released under the Code. Section 110-6(a) provides:

“When a defendant has previously been granted pretrial release under this
Section for a felony or 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.” Id. § 110-6(a).

The State can also move for sanctions against a defendant who violates a term of
his or her pretrial release. See id. § 110-6(e), (f) (defining sanctionable conduct and
possible sanctions). Finally, section 110-6 provides that a “court may, at any time,
after motion by either party or on its own motion, remove previously set conditions
of pretrial release,” but a “court may only add or increase conditions of pretrial
release at a hearing under this Section.” Id. § 110-6(g).

¶ 32 The Code also anticipates the situation presented in this case, namely, an
individual who was granted pretrial release prior to the amended Code’s effective
date who remained in detention due to the inability to satisfy a condition of release.
Section 110-7.5(b) of the Code provides: “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.” Id. § 110-7.5(b).

¶ 33 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 defendant to pay for a condition of release or any

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other ineligibility for a condition of pretrial release shall not be used as a
justification for the pretrial detention of that defendant.” Id. § 110-5(e).

The parties and our appellate court agree on the controlling statutory provisions up
to this point. The divide between the parties’ positions and the numerous
approaches taken in the appellate court emerges from the substantive makeup of a
hearing under subsection (e).

¶ 34 The vast majority of appellate court decisions have held that the State is allowed
to petition to detain a defendant in Watkins-Romaine’s position if the defendant
seeks to reopen the conditions of release under the amended Code. See, e.g., People
v. Davidson, 2023 IL App (2d) 230344, ¶ 18 (“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.” (Emphasis omitted.)); People v. McDonald, 2024 IL App (1st)
232414, ¶ 28 (“We believe that defendant’s filing of the pretrial release petition
opened the door to proceedings dictated by the amended statute, including the
State’s ability to file a pretrial detention petition in response.”); People v. Milner,
2024 IL App (1st) 241284, ¶ 40 (“Because section 110-5(a) of the Code specifically
contemplates that one possible result of such a hearing is a finding that no pretrial
conditions will reasonably ensure the defendant’s appearance in court, the safety of
individuals or the community, or the defendant’s compliance with all conditions of
release, we hold that the State’s petition for Mr. Milner’s pretrial detention was not
barred as untimely by section 110-6.1(c).”).

¶ 35 On the other hand, some panels in the appellate court have held, as the appellate
court did here, that the State is prohibited from petitioning to detain a defendant
who was ordered released subject to a monetary bond prior to the enactment of the
Pretrial Fairness Act. See, e.g., 2024 IL App (1st) 232479, ¶ 51 (“But nothing in
the amended Code indicates that the State should get a do-over now that defendant’s
monetary bond requirement no longer functions, as the trial court observed, as a
de facto ‘no bail’ order.”); People v. Brown, 2023 IL App (1st) 231890, ¶ 20
(“Allowing the State to file an untimely petition to detain a person who is already
in jail is, in our opinion, not a rational reading of section 110-7.5.”).

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¶ 36 D. Hearing Under Subsection (e) of Section
110-5 of the Code

¶ 37 As discussed above, after the amended Code went into effect on September 18,
2023, individuals in Watkins-Romaine’s situation were “entitled to a hearing under
subsection (e) of Section 110-5.” 725 ILCS 5/110-7.5(b) (West 2022). Subsection
(e) requires the circuit court, after finding that a defendant remains detained due to
the inability to satisfy a condition of pretrial release, to “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.” Id. § 110-5(e).

¶ 38 Watkins-Romaine received the hearing he was entitled to on his petition for
release from detention. The appellate court focused on the State’s petition to detain
as opposed to Watkins-Romaine’s petition for release. The appellate court stated:
“At issue in this appeal is the scope of the State’s power to petition for the pretrial
detention of defendants who were previously ordered released prior to the Code’s
amendment but remained in custody through no fault of their own.” 2024 IL App
(1st) 232479, ¶ 2. However, the circuit court’s order adjudicated Watkins-
Romaine’s petition for release. In its oral ruling, the circuit court stated: “the motion
to have the defendant released is going to be denied.” And while the court’s written
judgment is on a form detention order, “an oral statement controls when the report
of proceedings and common law record conflict.” Cook County Republican Party
v. Illinois State Board of Elections, 232 Ill. 2d 231, 237 (2009). Therefore, the
circuit court’s order was a resolution of Watkins-Romaine’s petition for release,
which was appropriate under sections 110-7.5(b) and 110-5(e) of the amended
Code.

¶ 39 The circuit court’s decision also resolved the State’s petition to detain. The
parties dispute whether the State was allowed to participate and, if allowed to
participate, the extent of the State’s participation. Watkins-Romaine contends that
the State was limited to contesting what available conditions would allow for
release while meeting the Code’s requirements. The State contends that it was

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allowed to “file a responsive petition seeking the continued pretrial detention” of
Watkins-Romaine. We hold that the State was allowed to respond to Watkins-
Romaine’s petition for release. We further hold that the State could object to
Watkins-Romaine’s requested relief of release from detention pending trial.

¶ 40 To start, section 110-5(e) requires the court to “reopen the conditions of release
hearing.” 725 ILCS 5/110-5(e) (West 2022). To “reopen” means “to review (an
otherwise final and nonappealable judgment) for the purpose of possibly granting
or modifying relief.” Black’s Law Dictionary 1490 (10th ed. 2014). The hearing
being “reopened” is the conditions hearing under section 110-5(a), which directs
the trial court to a set of factors to consider in “determining which conditions of
pretrial release, 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.” (Emphasis
added.) 725 ILCS 5/110-5(a) (West 2022); see Milner, 2024 IL App (1st) 241284,
¶ 37 (“The words ‘if any’ make clear that one possible result of such a hearing is
that the court may conclude there are no appropriate conditions of release.”
(Emphasis in original.)). 4

¶ 41 The initial circuit court order found that a “substantial bail,” in the amount of
$350,000, was necessary to “assure the safety of the public in light of these
allegations.” The circuit court further found that the circumstantial evidence was
“compelling enough for a significant bond in this case.” With the abolition of
monetary bail, the circuit court was placed in a conundrum with Watkins-
Romaine’s petition for release: the condition necessary to ensure the safety of the
community was no longer available, and no other condition existed that could
ensure the safety of the community. Even if Watkins-Romaine’s petition under
section 110-5(e) was limited to this element of the current Code, as he argues, he
could be denied pretrial release if the circuit court found that no conditions of

4
We note that even the appellate court’s remand order appears to allow for this potential
result. See 2024 IL App (1st) 232479, ¶ 53 (“Upon remand, defendant should receive the
hearing to which he is entitled to determine if there are conditions available that will
reasonably ensure the appearance of defendant, the safety of any other person, and the
likelihood of compliance by defendant with all the conditions of pretrial release.”
(Emphasis added.)).

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pretrial release could ensure, inter alia, the safety of the community. See 725 ILCS
5/110-5(a), (e) (West 2022).

¶ 42 However, under the amended Code, a defendant can only be detained pretrial if
the State proves by clear and convincing evidence the three elements in section
110-6.1(e). See id. § 110-2 (“Pretrial release may be denied only if a person is
charged with an offense listed in Section 110-6.1 and after the court has held a
hearing under Section 110-6.1 ***.”); id. § 110-6.1(e) (setting out three elements
the State must prove by clear and convincing evidence to warrant a defendant’s
pretrial detention). The most practical approach, and the only one not leading to
absurd and unexpected results, is to allow the State in this limited circumstance to
respond to a defendant’s petition for release with a petition to detain under section
110-6.1 of the amended Code. See Dawkins v. Fitness International, LLC, 2022 IL
127561, ¶ 27 (explaining that “statutes must be construed to avoid absurd results”).

¶ 43 As the appellate court has reasoned, Watkins-Romaine “reopened the matter by
filing a pretrial release petition *** after his initial bond hearing was held, thus
availing himself of the benefit of the amended statute, but at the same time, he also
subjected himself to the procedures dictated by the amended statute.” See
McDonald, 2024 IL App (1st) 232414, ¶ 28; see also People v. Vingara, 2023 IL
App (5th) 230698, ¶ 22 (“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.”). To bridge the gap between a circuit court’s
denial of a defendant’s petition for release under section 110-5(e) and the circuit
court’s ability to detain a defendant pretrial under the amended Code, we hold that
the State may petition to detain a defendant pretrial when a defendant, who was
previously ordered released on an unsatisfied monetary bail, seeks to reopen the
conditions of release hearing after September 18, 2023.

¶ 44 A detention petition under these circumstances is supported by the amended
Code. Section 110-7.5(a) provides: “This Section shall not limit the State’s
Attorney’s ability to file a verified petition for detention under Section 110-6.1 or
a petition for revocation or sanctions under Section 110-6.” 725 ILCS 5/110-7.5(a)
(West 2022). As the appellate court has noted, the use of “Section” as opposed to
“subsection” indicates the legislature’s intent for the provision to apply throughout

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section 7.5 and not solely to subsection (a). See People v. Whitmore, 2023 IL App
(1st) 231807, ¶¶ 7-8; see also In re K.C., 186 Ill. 2d 542, 549-50 (1999) (“It is well
established that, by employing certain language in one instance and wholly
different language in another, the legislature indicates that different results were
intended.”).

¶ 45 Notably, section 110-7.5 only applies to those defendants whose pretrial
detention or release has already been litigated. In other words, every defendant
subject to section 110-7.5 will have had his or her “first appearance before a judge.”
See 725 ILCS 5/110-6.1(c)(1) (West 2022). Therefore, the legislature has
sanctioned, or at least declined to prohibit, the State’s filing of a “verified petition
for detention under Section 110-6.1” for those already released on monetary bail
(id. § 110-7.5(a)) and for those, like Watkins-Romaine, who are still detained due
to the failure to satisfy a condition of release (id. § 110-7.5(b)).

¶ 46 Finally, we note that much of the appellate court’s rationale, aside from its
reading of the amended Code, was the notion that it “would be immensely unfair to
permit the State to have a second bite at the detention apple.” 2024 IL App (1st)
232479, ¶ 46. The appellate court’s reasoning, while not expressly stated, appears
to be premised on the preclusive doctrines of res judicata and collateral estoppel.
See Arvia v. Madigan, 209 Ill. 2d 520, 534 (2004) (“[R]es judicata prevents a party
from taking two bites out of the same apple.”). “The doctrine of res judicata
provides that a final judgment on the merits rendered by a court of competent
jurisdiction acts as an absolute bar to a subsequent action between the same parties
or their privies involving the same claim, demand, or cause of action.” Wilson v.
Edward Hospital, 2012 IL 112898, ¶ 9. “Collateral estoppel is an equitable
doctrine, the application of which precludes a party from relitigating an issue
decided in a prior proceeding.” American Family Mutual Insurance Co. v. Savickas,
193 Ill. 2d 378, 387 (2000); id. at 388 (explaining that collateral estoppel “should
not be applied unless it is clear that no unfairness will result to the party sought to
be estopped”).

¶ 47 It would not be equitable to preclude the State from meaningful participation in
the proceedings on Watkins-Romaine’s petition for release. To start, as we have
noted, the Pretrial Fairness Act “dramatically changed the statutory framework for
pretrial release of criminal defendants in Illinois.” Rowe, 2023 IL 129248, ¶ 1. The

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doctrine of res judicata does not apply when there has been a change in the law.
See Bernstein v. Department of Human Services, 392 Ill. App. 3d 875, 895 (2009)
(“A change in law occurring between two successive causes of action on the same
subject matter renders res judicata inapplicable ***.”); see also Consiglio v.
Department of Financial & Professional Regulation, 2013 IL App (1st) 121142,
¶ 44 (“A change in circumstances can create a new basis for a claim and thus
obviate the danger of repetitive litigation.”).

¶ 48 Also, it would be unfair to estop the State from litigating its detention petition
in this case for three reasons. First, the circuit court order at issue here was the first
to consider a petition to detain under section 110-6.1 of the Code, as the State’s
initial argument for detention was under section 110-4(a) of the prior Code. Second,
at the initial detention hearing, while Watkins-Romaine won the battle
(determination of the quality of the State’s proffer), the State won the war (order in
effect denying Watkins-Romaine pretrial release). As a result, the State “did not
have a meaningful incentive to appeal” the circuit court’s initial order. See Herzog
v. Lexington Township, 167 Ill. 2d 288, 298 (1995). Finally, Watkins-Romaine, by
filing his petition to reopen the conditions of release, necessarily sought to relitigate
an issue previously determined in the State’s favor—that a $350,000 bail was
necessary to ensure the safety of the community. In this limited circumstance, with
the amendments to the Code, it would be unfair to the State to allow Watkins-
Romaine to reopen one aspect of the case while prohibiting the State from any
meaningful participation.

¶ 49 In short, the procedures followed in the circuit court were fair and consistent
with the amended Code. Watkins-Romaine petitioned to reopen the proceedings
under section 110-5(e). The State was permitted to respond and request that
Watkins-Romaine remain detained. The circuit court’s order denying release, the
substance of which is not before this court, was done in procedural compliance with
the amended Code.

¶ 50 III. CONCLUSION

¶ 51 In sum, Watkins-Romaine has failed to establish error, let alone the “clear and
obvious” error necessary for plain error relief. The circuit court did not commit
error when it considered Watkins-Romaine’s petition for release and the State’s

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responding petition for pretrial detention. Therefore, we reverse the appellate
court’s judgment. The appellate court did not consider Watkins-Romaine’s
remaining contentions of error. 2024 IL App (1st) 232479, ¶ 53 (declining to
address Watkins-Romaine’s argument that “the State failed to meet its burden of
proof at the hearing on its petition for pretrial detention”). The parties have also not
briefed or argued those remaining contentions before this court. Accordingly, we
remand the cause to the appellate court to consider those contentions.

¶ 52 Appellate court judgment reversed.

¶ 53 Cause remanded.

¶ 54 JUSTICE ROCHFORD, specially concurring:

¶ 55 I agree with my colleagues that the appellate court’s judgment must be reversed.
However, I reach this conclusion for reasons other than those stated by the majority.

¶ 56 I agree with my colleagues that defendant forfeited review of this issue. Supra
¶ 27. Thus, he may obtain relief only if he can establish plain error. As the majority
correctly notes, the first step in a plain error analysis is determining whether a
“ ‘clear or obvious’ ” error occurred. Supra ¶ 28 (quoting People v. Bush, 2023 IL
128747, ¶ 71). Defendant has established that the trial court’s consideration of the
State’s petition to detain was a clear or obvious error.

¶ 57 As this court explained in Rowe v. Raoul, 2023 IL 129248, ¶ 4, the Pretrial
Fairness Act 5 was enacted as part of a comprehensive overhaul of many aspects of
this state’s criminal justice system. The Act “dramatically changed the statutory
framework for pretrial release of criminal defendants in Illinois” (id. ¶ 1) by
replacing a system of monetary bail with a “default rule that all persons charged
with an offense shall be eligible for pretrial release on personal recognizance” (id.
¶ 5). When it enacted these new provisions, the legislature had to determine what
relief should be granted to those defendants who had been ordered released with

5
For simplicity’s sake, I will refer to the amended Code provisions as the “Pretrial
Fairness Act.” The Act has been referred to as the “Pretrial Fairness Act” and the “SAFE-
T Act”; however, neither title is official. Rowe v. Raoul, 2023 IL 129248, ¶ 4 n.1.

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pretrial conditions under the old law—including the condition of depositing
security—but remained in detention. The legislature enacted a clear,
straightforward, statutory remedy that, unsurprisingly, would generally lead to
these defendants being released. Nevertheless, the majority of appellate court
decisions addressing defendants in this position have been unwilling to grant them
the relief to which they are entitled and instead have declared that the State has a
right to file new petitions to detain them.

¶ 58 The majority notes that the “vast majority” of appellate court decisions have
held that the State is allowed to petition to detain a person in defendant’s position.
Supra ¶ 34. This point becomes much less significant when one acknowledges that
the appellate court has been unable to agree on a rationale for why this is so. As the
appellate court demonstrated below, the decisions allowing the State to do what it
did here rely on several different rationales. There is disagreement over what gives
the State the right to file the petition and what timing requirements apply. See 2024
IL App (1st) 232479, ¶¶ 35-48. And, after the appellate court filed its opinion in
this case, yet another rationale emerged. In People v. Milner, 2024 IL App (1st)
241284, ¶ 37, the appellate court found a right for the State to file detention
petitions against people in defendant’s position by reading language from
subsection (a) of section 110-5 of the Code (725 ILCS 5/110-5(a) (West 2022)) into
subsection (e) (id. § 110-5(e)). It is remarkable that, in under a year, so many
competing rationales have emerged in favor of the State’s position. No appellate
court panel has come up with an explanation sufficiently convincing to prevent
future appellate court panels from looking for a better one. I submit that the reason
the appellate court has struggled so hard to find support for the State’s position is
the simplest one: the appellate court is looking for something that is not there. A
right to file a detention petition against a person in defendant’s position simply does
not exist in the statute. The majority’s decision to the contrary finds no support in
the Code’s plain language and is a direct repudiation of the legislature’s policy
choice.

¶ 59 There was no statutory basis for the State to file the petition to detain that is the
subject of this appeal. It was not filed within the time limits set forth in section 110-
6.1(c) (id. § 110-6.1(c)). Nor did the State attempt to meet the requirements for
filing a second or subsequent petition. See id. § 110-6.1(d)(2).

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¶ 60 Moreover, there is no right to file a petition to detain in response to a
defendant’s request for a hearing under section 110-5(e) (id. § 110-5(e)). A helpful
place to begin is an understanding of the nature of hearings under section 110-5(e).
This subsection does not merely apply to people such as defendant who were
detained under the old law. Rather, it applies to anyone who has been granted
pretrial release with conditions and remains in custody after 48 hours. This
subsection 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 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.” Id.

¶ 61 The purpose of this subsection is obvious: to quickly and expeditiously provide
a hearing for people who have been ordered released but remain in custody and to
get them released, if possible. There is no other way to read this provision. The
scope of the hearing is quite limited. The judge is to determine why the defendant
remains in pretrial detention, keeping in mind that the inability to pay for a
condition of release or ineligibility for a condition of release is not a justification
for pretrial detention. The court is to determine if the reason for the detention is 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.” Id. If that
is the reason, then the court is to reopen the conditions of release hearing to
determine what conditions will reasonably ensure the defendant’s appearance, the
safety of other persons, and compliance with the conditions of pretrial release.
There is no provision in this subsection for the circuit court to reconsider a previous
determination that the defendant is eligible for pretrial release.

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¶ 62 A section 110-5(e) hearing is triggered quickly. A defendant is entitled to a
hearing if he remains in detention 48 hours after being ordered released with
conditions. There is nothing in this subsection to suggest that the legislature
intended that a defendant seeking the hearing to which he is entitled means that the
State could relitigate a petition to detain that it lost a mere three days previously.
Again, the question at this point is not whether the defendant should be detained; it
is why a defendant who has been ordered released has not been released. The
majority asserts that the State is entitled to file a responsive pleading to a
defendant’s petition for release. While nothing in the plain language of the statute
precludes a responsive pleading from the State, any such pleading would obviously
have to be limited to things that are properly considered at a section 110-5(e)
hearing. For instance, here, the State would have been entitled to argue that the
court should leave in place all of the previously ordered conditions of release,
except for cash bail. See People v. Brown, 2023 IL App (1st) 231890, ¶ 17.

¶ 63 With the legislature’s abolition of monetary bail and the enactment of the
Pretrial Fairness Act, the legislature had to determine what to do with people who
had been ordered released under the previous law but remained in custody. The
legislature enacted section 110-7.5(b) (725 ILCS 5/110-7.5(b) (West 2022)) to
address this situation. This section provides, in relevant part:

“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.” Id.

The legislature could have, but did not, say that the eligibility of such persons for
pretrial release should be redetermined. The choice it made instead was to grant
them a hearing under section 110-5(e). And a section 110-5(e) hearing is for people
who have been ordered released with conditions and who were supposed to have
been released. Whether this court agrees with that choice or wishes the legislature
had made a different choice is immaterial. The job of the courts is to enforce the
statute that the legislature enacted. See Abrahamson v. Department of Professional
Regulation, 153 Ill. 2d 76, 91 (1992) (when statutory language is certain and
unambiguous, “ ‘the only legitimate function of the courts is to enforce the law as
enacted by the legislature’ ” (quoting Certain Taxpayers v. Sheahen, 45 Ill. 2d 75,

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84 (1970))). This cause should be remanded for the section 110-5(e) hearing to
which defendant is entitled.

¶ 64 In opposition to this conclusion, the State relies primarily on subsections (g)
and (i) of section 110-6 of the Code (725 ILCS 5/110-6(g), (i) (West 2022)). Section
110-6(g) provides, in part, that

“[t]he court may, at any time, after motion by either party or on its own motion,
remove previously set conditions of pretrial release, subject to the provisions in
this subsection. The court may only add or increase conditions of pretrial release
at a hearing under this Section.” Id. § 110-6(g).

Section 110-6(i) provides that

“[n]othing 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” Id. § 110-6(i).

These subsections have nothing to do with this case. The State endorses the
rationale from People v. Jones, 2023 IL App (4th) 230837, ¶ 17, that a petition for
pretrial detention against a person in defendant’s position “operates as a motion to
increase the pretrial release conditions to the furthest extent” under section 110-
6(g). There are three problems with this position. First, section 110-6 is not
applicable to this case. Section 110-6 is applicable to defendants who have been
released and committed another crime or violated an order of protection. Second,
section 110-6(g) only allows the court to increase pretrial conditions at a section
110-6 hearing. The two types of hearings provided for in section 110-6 are
revocation hearings and sanction hearings, and terms of pretrial release may be
modified at these hearings. See 725 ILCS 5/110-6(a), (d), (e) (West 2022). The
hearing defendant received in this case was neither of these things. Neither of the
conditions necessary for the State to file a petition to revoke release was present
here. See id. § 110-6(a). And the State may seek sanctions only when a defendant
violates the terms of release. See id. § 110-6(d), (e). Second, even if section 110-
6(g) had any relevance to this case, it is obviously not the case that seeking denial
of release is a motion to increase pretrial release conditions to the fullest extent. A
denial of release cannot be a condition of release. Section 110-6(i) also has nothing
to do with this case. That subsection does not grant any new rights to file petitions

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for pretrial detention. It merely clarifies that nothing in section 110-6 should be
construed as limiting what rights the State otherwise has to file a petition under
section 110-6.1. See id. § 110-6(i).

¶ 65 The majority does not endorse the State’s rationale but rather offers several
other justifications for reversing the appellate court. First, the majority criticizes the
appellate court for focusing on the State’s petition to detain as opposed to
defendant’s petition for release. Supra ¶ 35. The majority claims that, because the
circuit court stated from the bench that “ ‘the motion to have the defendant released
is going to be denied,’ ” defendant received the hearing to which he was entitled
under section 110-5(e). Supra ¶ 38. This is not correct. As explained above, the
hearing to which defendant was entitled under section 110-5(e) was one in which
the court determines why the defendant has not been released and then, if necessary,
reopens the conditions hearing. This is not the hearing defendant received. The
hearing he received instead was one in which the State was allowed to relitigate
whether he should be detained, and the judge reached the opposite conclusion than
the previous judge did. A section 110-5(e) hearing is supposed to open with the
court considering the reason for the defendant’s continued detention. Here, the
hearing began with the State litigating a petition to detain a defendant who was
already detained. The hearing opened with the State trying to meet its burden of
showing that the proof was evident or the presumption great that defendant had
committed a detainable offense. The court determined that the State had met its
burden and that defendant should be detained. After determining this, the court
stated that the motion to have the defendant released was going to be denied. At
this point, defendant’s motion to be released was essentially moot, as the court had
just found that the State had met its burden of showing that defendant should be
detained. It was entirely appropriate for the appellate court to focus on the petition
to detain because the improper petition tainted the entire proceeding and denied
defendant the hearing to which he was entitled. Here, the circuit court never even
considered what section 110-5(e) requires it to consider because it found that
defendant should be detained. No appellate court decision has identified any
language in section 110-5(e) that allows a court to consider whether the proof was
evident or the presumption great that the defendant has committed a detainable
offense, and the majority points to no such language either.

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¶ 66 The written order that the circuit court entered was, unsurprisingly, captioned
“Order After Pretrial Detention Hearing,” and it specifically states that it is being
entered “Upon hearing the State’s Petition to Deny Pretrial Release.” The majority
cites the principle that an “ ‘oral statement controls when the report of proceedings
and common law record conflict.’ ” Supra ¶ 38 (quoting Cook County Republican
Party v. Illinois State Board of Elections, 232 Ill. 2d 231, 237 (2009)). But this
principle has no application here because there is no conflict between the report of
proceedings and the common-law record. The report of proceedings shows that the
circuit court held a pretrial detention hearing, focusing on whether the proof was
evident or the presumption great that defendant committed the offense. The circuit
court did not conduct a section 110-5(e) hearing.

¶ 67 Next, the majority adopts the position first put forth by the court in Milner, 2024
IL App (1st) 241284, ¶ 37, that reads language from subsection (a) of section 110-
5 into subsection (e). The reasoning goes like this. Subsection (e) provides that, if
the reason for the defendant’s continued detention is the unavailability of, or the
defendant’s ineligibility for, a condition of release previously ordered, the court is
to “ ‘reopen the conditions of release hearing.’ ” Supra ¶ 40 (quoting 725 ILCS
5/110-5(e) (West 2022)). The hearing that is “reopened” is a conditions of release
hearing, and these are provided for in subsection (a). Supra ¶ 40. And, at a
subsection (a) hearing, the court is to consider certain factors in “ ‘determining
which conditions of pretrial release, 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.’ ” (Emphasis in original.) Supra ¶ 40 (quoting 725 ILCS 110-5(a) (West
2022)). The majority endorses Milner’s rationale that the words “if any” mean that
the court may conclude that there are no appropriate conditions of release. Supra
¶ 40.

¶ 68 There are at least two problems with this position. First, section 110-5(e) does
not merely state that the court should “ ‘reopen the conditions of release hearing.’ ”
See supra ¶ 40 (quoting 725 ILCS 5/110-5(e) (West 2022)). The full phrase from
section 110-5(e) is that the court should “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

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release.” (Emphasis added.) 725 ILCS 5/110-5(e) (West 2022). The legislature did
not repeat the “which, if any” language from section 110-5(a) but instead used the
word “what.” It is a cardinal principle of statutory construction that, when the
legislature uses certain language in one part of a statute and different language in
another part, we assume different meanings were intended. People v. Goossens,
2015 IL 118347, ¶ 12. And, here, it makes sense that the legislature would intend a
different meaning because section 110-5(e) hearings are limited to those defendants
who have already been ordered released with conditions. In other words, a court
has already determined that there are appropriate release conditions. This court may
not simply ignore the language that the legislature used in the applicable subsection
and instead apply language from a different subsection.

¶ 69 That is not to say, of course, that there are no circumstances under which a
person could remain in detention after a section 110-5(e) hearing. For instance,
consider a situation like the one that occurred in Brown, 2023 IL App (1st) 231890.
There, the defendant was ordered released on electronic monitoring. Id. ¶ 3. He
posted bond but was not released because an appropriate host site could not be
found. Id. If the court were to reopen the conditions of release hearing and
determine that nothing but electronic monitoring would “reasonably ensure the
appearance of [the] defendant as required, the safety of any other person, and the
likelihood of compliance by the defendant with all the conditions of pretrial
release,” it would be appropriate for the court to order that his detention continue
until a host site could be found. See 725 ILCS 5/110-5(e) (West 2022). As the
Brown court explained, the State could not file an untimely petition to detain the
defendant, but the circuit court was “authorized to leave in place the conditions of
pretrial release that were imposed *** aside from cash bail.” Brown, 2023 IL App
(1st) 231890, ¶ 17. Thus, here, the court was authorized to leave in place electronic
monitoring and all of the other conditions of release ordered by Judge Ahmad,
except for cash bail. But this is different than reconsidering whether the defendant
is eligible for release in the first place.

¶ 70 Second, for a person such as defendant, “if any” is necessarily off the table. As
the majority concedes (supra ¶¶ 30, 41), a prerequisite to detaining a defendant is
a finding that “the proof is evident or the presumption great that the defendant has
committed” the charged offense. See 725 ILCS 5/110-6.1(e)(1) (West 2022). Judge
Ahmad found at the hearing on the State’s initial detention petition that the State

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had failed to meet that burden. Thus, when defendant requested his section 110-
5(e) hearing, a finding that no conditions were available that would ensure
compliance was off the table, as defendant was not subject to pretrial detention.
Without the necessary finding that the proof was evident or the presumption great
that defendant committed the offense, he was entitled to be released with
conditions. 6 Instead, the majority holds that the circuit court may deny a defendant
the hearing to which he is entitled by allowing the State to file a new petition for
detention, even though the plain language of sections 110-7.5(b) and 110-5(e) does
not allow the State to file such a petition. The majority’s interpretation both ignores
plain statutory language and thwarts obvious legislative intent.

¶ 71 This misreading of the statute then leads the majority to perceive a conflict in
the statute that does not exist. The majority explains that, at the hearing on the
State’s initial petition to deny pretrial release, the circuit court imposed bail in the
amount of $350,000. However, the elimination of cash bail placed the circuit court
at the subsequent hearing “in a conundrum.” See supra ¶ 41. The judge at the
previous hearing believed that a substantial bond was a necessary condition of
release, but this option was no longer available when defendant moved for a section
110-5(e) hearing. See supra ¶ 41. The majority holds that it was proper for the
circuit court to determine that there were no conditions available that would ensure
the safety of the public. Supra ¶ 41. However, defendant was not subject to
detention in the first place because of the previous judge’s finding that the State
failed to establish that the proof was evident or the presumption great that defendant
committed the charged offense. Supra ¶¶ 13, 41. Thus, the majority holds that the

6
The majority notes that even the appellate court’s remand order seemed to allow for
the possibility of a finding that no conditions would ensure defendant’s compliance. See
supra ¶ 40 n.4. The appellate court stated in its remand order that defendant should “receive
the hearing to which he is entitled to determine if there are conditions available that will
reasonably ensure the appearance of defendant, the safety of any other person, and the
likelihood of compliance by defendant with all the conditions of pretrial release.”
(Emphasis added.) 2024 IL App (1st) 232479, ¶ 53. Under the appellate court’s rationale,
however, “if” was not a proper consideration. The appellate court held that the circuit court
should not have considered the State’s petition for detention at defendant’s hearing. Thus,
defendant would go into a section 110-5(e) hearing as a person for whom the State had
failed to show that the proof was evident or the presumption great that he committed the
offense.

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most practical approach is for this court to “bridge the gap” by simply declaring
that, when a person in defendant’s position files a petition for release, the State may
respond with a petition to detain under section 110-6.1. Supra ¶ 43. This would
give the circuit court the chance to detain the defendant by reaching a different
conclusion on whether the State had met its burden to show that defendant should
be detained. According to the majority, it is forced to grant the State this right to
avoid “absurd and unexpected results.” Supra ¶ 42. Presumably, in using the words
“absurd” and “unexpected,” the majority is invoking the canon of statutory
construction that a court may ignore a statute’s plain language when necessary to
avoid absurd results or consequences that the legislature could not have intended.
See People v. Hanna, 207 Ill. 2d 486, 498 (2003).

¶ 72 The problem the majority perceives, however, was entirely a result of the circuit
court holding the wrong hearing. The circuit court was supposed to follow section
110-5(e). Instead, the court expressly considered only one thing at the hearing:
whether the proof was evident or the presumption great that defendant committed
the offense. When explaining his reason for detaining defendant, the circuit court
judge stated from the bench: “Under the statute, this would be a mandatory
detention based upon the facts if that burden of proof can be met.” The circuit court
concluded that the State did meet that burden and then stated that defendant would
be detained. Section 110-5(e) does not permit the court to proceed this way. It
simply does not allow the court to consider whether the proof was evident or the
presumption great that defendant committed the charged offense. Again, a section
110-5(e) hearing is for defendants who have been ordered released with conditions.
The circuit court was not placed in a conundrum by its inability to use monetary
bail to detain defendant. Sections 110-7.5(b) and 110-5(e) gave the court clear
instructions to follow and explained that the inability to pay for a condition of
release or ineligibility for a condition of release may not be used to justify pretrial
detention. Moreover, it is not clear that in this case the conditions of release hearing
would even be reopened. Again, the conditions hearing is reopened only if the
reason for the defendant’s continued detention is the unavailability of, or
defendant’s ineligibility for, one or more pretrial release conditions previously
imposed. 725 ILCS 5/110-5(e) (West 2022). Defendant asserted in his petition for
release that he was unable to post the bond currently set. If it is determined that the
reason for defendant’s continued detention is solely his inability to make bail, that
would not be grounds for reopening the conditions hearing. The majority never

- 25 -
mentions that, in addition to the $350,000 bond, Judge Ahmad had also imposed
electronic monitoring and ordered defendant to (1) surrender his Firearm Owner’s
Identification card and any firearms, (2) not possess any firearms or other
dangerous weapons, and (3) not have contact with the complaining witness or with
any occurrence witnesses. If defendant would have made bail, he currently would
be released on these terms. The circuit court did not find that any of these previously
imposed conditions of release were unavailable.

¶ 73 Moreover, the canon of statutory construction about avoiding absurd or
unexpected results has no application here, as defendant being released after a
proper section 110-5(e) hearing would be neither unexpected nor absurd. When a
state moves from a cash bail system to a no cash bail system, the intended and
obvious result is that people who would have been detained under the previous law
will no longer be detained. That is the whole point of eliminating cash bail. Circuit
courts will no longer be able to find that the State failed to meet its burden of proof
for a no bail order but then use a high bail to deny release. If the hearing before
Judge Ahmad had taken place under the Pretrial Fairness Act, defendant would
have been released. Once the circuit court found that the State had failed to establish
that the proof was evident or the presumption great that defendant committed the
charged offense, the circuit court would not have been able to detain him. And that
is also what would have likely happened if defendant had been given a proper
section 110-5(e) hearing. Not only would such a result not be unexpected, but we
also have every reason to believe it is precisely what the legislature intended.

¶ 74 I ask my colleagues what would be more expected than for the legislature to
enact procedures that would ensure that defendants who would not be eligible for
detention under the Pretrial Fairness Act would be eligible for release once the act
went into effect. Again, when the legislature eliminated cash bail, the legislature
knew that there would be a class of defendants who were being held only because
they could not make bail, and they enacted specific procedures to deal with these
defendants. They could have, but did not, say that the State should be allowed to
relitigate the question of their eligibility for release. Instead, they chose to grant
them a section 110-5(e) hearing, a procedure that would almost certainly lead to
release. Again, what could be more expected? Surely, the majority does not mean
to suggest that, if the original circuit court would not have had monetary bail as an
option, it would have reached a different conclusion on the question of whether the

- 26 -
proof was evident or the presumption great that defendant committed the offense.
That is not a presumption we should ever make about a judge, and the legislature
obviously chose to believe that, when circuit courts found defendants eligible for
release, they were sincere in their findings. Accordingly, it makes perfect sense that
the remedy the legislature would grant these defendants is a section 110-5(e)
hearing.

¶ 75 And, just as such a result would not be unexpected, it would likewise not be
absurd. Again, what is absurd about a person who would not be eligible for
detention under the Pretrial Fairness Act obtaining his release under the act? With
the elimination of cash bail, courts may no longer use high bail amounts to detain
defendants who are not eligible for detention. What the majority calls absurd is the
very point and purpose of the Pretrial Fairness Act. Because applying the plain
language of the statute does not lead to absurd and unexpected results, this court
must enforce the statute as written. As the appellate court correctly stated when
addressing this issue in People v. Watson, 2024 IL App (1st) 240207-U, ¶ 18,
“[r]eviewing courts should not complicate the Code’s simple dictates to fix
problems of their own making.” This court might believe that the legislature should
have made a different choice and provided that, for defendants who were being
detained because they could not make bail, the question of their eligibility for
release should be redetermined. The legislature made a different choice, however,
and that choice is entirely consistent with the purpose and policy of the Pretrial
Fairness Act. This court must therefore apply the statute as written and may not
rewrite it in accord with its own policy preferences. See Roselle Police Pension
Board v. Village of Roselle, 232 Ill. 2d 546, 558 (2009) (the judiciary does not
rewrite statutes “to make them consistent with the court’s idea of orderliness and
public policy”); King v. First Capital Financial Services Corp., 215 Ill. 2d 1, 26
(2005) (“ ‘Under the guise of construction, a court may not supply omissions,
remedy defects, annex new provisions, substitute different provisions, add
exceptions, limitations, or conditions, or otherwise change the law so as to depart
from the plain meaning of language employed in the statute.’ ” (quoting In re
Marriage of Beyer, 324 Ill. App. 3d 305, 309-10 (2001))); Ferguson v. Skrupa, 372
U.S. 726, 730 (1963) (“[C]ourts do not substitute their social and economic beliefs
for the judgment of legislative bodies, who are elected to pass laws.”); Day-Brite
Lighting, Inc. v. Missouri, 342 U.S. 421, 423 (1952) (the courts do not “sit as a
super-legislature to weigh the wisdom of legislation”).

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¶ 76 Indeed, what would be both unexpected and absurd would be for the legislature
to overhaul the Code’s pretrial release provisions by eliminating monetary bail and
replacing it with a system whereby everyone is presumptively entitled to release on
personal recognizance but then allow courts to find new ways to detain people who
are being held because they could not afford bail. Why would the legislature enact
provisions that thwart its own intent? As the circuit court in this case conceded, one
of the main purposes of the Pretrial Fairness Act was to eliminate the practice of
finding someone eligible for release with conditions but then imposing a bond
amount that he or she would never be able to pay. Why would we presume that the
legislature intended to replace this with a new practice whereby courts could deny
release to these very same defendants by allowing courts to reconsider their
eligibility for release when there has been no change in their circumstances?

¶ 77 The majority states that its interpretation is supported by the second sentence of
section 110-7.5(a), which states that “[t]his Section shall not limit the State’s
Attorney’s ability to file a verified petition for detention under Section 110-6.1 or
a petition for revocation or sanctions under Section 110-6.” 725 ILCS 5/110-7.5(a)
(West 2022). The majority notes that this sentence uses the term “ ‘Section’ ”
instead of “ ‘subsection.’ ” Supra ¶ 44. The majority reads this sentence as a broad
grant of authority for the State to file a petition for detention, revocation, or
sanctions whenever any provision of section 110-7.5 is in play, including
subsection (b). Supra ¶ 45. The majority notes that section 110-7.5 applies only to
defendants who have already had their pretrial detention or release litigated and
thus will have already had their “ ‘first appearance before a judge.’ ” Supra ¶ 45.
Thus, by referencing a petition for detention in section 110-7.5(a), the legislature
must have intended to allow new petitions for detention against any defendants
covered by any provision of section 110-7.5. Supra ¶ 45. This reasoning does not
withstand scrutiny.

¶ 78 There is a difference between statutory language that grants a right and statutory
language that does not limit a right otherwise granted. The second sentence of
section 110-7.5(a) does not grant the State a right to file petitions for detention,
revocation, or sanctions whenever any provision of section 110-7.5 is in play.
Rather, it is merely cautionary language that nothing in section 110-7.5 should be
read as limiting the rights the State otherwise has under sections 110-6 and 110-
6.1. This cautionary language is necessary because of sentences in section 110-7.5

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such as “[o]n or after January 1, 2023, any person having been previously released
pretrial on the condition of the deposit of security shall be allowed to remain on
pretrial release under the terms of their original bail bond.” (Emphasis added.) 725
ILCS 5/110-7.5(a) (West 2022). The legislature is merely clarifying that saying
things such as “shall be allowed to remain on pretrial release” does not mean that
the State does not have the rights with respect to such defendants that it would
otherwise have under sections 110-6 and 110-6.1. But the legislature did not grant
the State the right to file detention petitions against people in defendant’s position.
As the appellate court stated, “[a] petition for detention would be redundant,
because the defendant is already in custody, and misplaced, because the trial court
already determined the defendant was eligible to be released.” 2024 IL App (1st)
232479, ¶ 50. The majority claims that, as section 110-7.5 applies only to
defendants who have already had a detention hearing, the second sentence of
section 110-7.5(a) must be understood as granting a right to the State to file a new
petition to detain in any hearing under section 110-7.5. But this is not correct
because section 110-6.1 specifically allows the State to file a second or subsequent
petition for detention based on facts not known or obtainable at the time of the filing
of the original petition. 725 ILCS 5/110-6.1(d)(2) (West 2022). If the State wishes
to proceed under this subsection, it must present a verified application setting forth
the facts that were previously unknown or unobtainable when it filed the initial
petition. Id. Additionally, if a defendant commits an offense while on release, the
State may file a petition for detention in the new case. See People v. Acosta, 2024
IL App (2d) 230475, ¶ 28. Thus, there are circumstances under which the State
could file a detention petition against someone who has already had a detention
hearing and been released.

¶ 79 Finally, the majority ends its analysis by responding to an argument that the
appellate court never made. The majority notes that the appellate court stated that
it would be “ ‘immensely unfair to permit the State to have a second bite at the
detention apple.’ ” Supra ¶ 46 (quoting 2024 IL App (1st) 232479, ¶ 46). The
majority claims that, by stating this, the appellate court was invoking the principles
of collateral estoppel and res judicata. Supra ¶ 46. The majority then spends several
paragraphs explaining why these doctrines do not apply. See supra ¶¶ 47-49. The
appellate court, however, never invoked collateral estoppel or res judicata, and the
defendant has made no such argument in this court. The full passage from which
the majority took this quote is the following:

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“The legislature accounted for those who were ordered released under the
prior bail system but could not be released due to some circumstance beyond
their control. 725 ILCS 5/110-7.5(b), 110-5 (West 2022). It would be
immensely unfair to permit the State to have a second bite at the detention apple
simply because defendant exercised his statutory right to try to find a way to
fulfill the trial court’s preexisting order that he could be released.” 2024 IL App
(1st) 232479, ¶ 46.

This passage came at the end of a lengthy discussion where the court explained that
the plain language of the Code does not allow for detention petitions against people
in defendant’s position and that appellate court decisions that have found such a
right have read additional language into the statute. All that the court was saying in
the above paragraph was that a defendant seeking the hearing to which he is
statutorily entitled should not lead the courts to punish the defendant by granting
the State a right that the legislature chose not to. This has nothing to do with
collateral estoppel or res judicata.

¶ 80 For all of the above reasons, I believe that defendant has demonstrated that the
circuit court’s consideration of the State’s petition to detain was a clear or obvious
error. The State argues that the error could not have been clear or obvious, given
the split in appellate court authority. I disagree. The language in sections 110-7.5(b)
and 110-5(e) is clear, straightforward, and easy to apply. As the Watson court
correctly stated, this is a simple question with a simple answer. Watson, 2024 IL
App (1st) 240207-U, ¶ 2. It has been complicated only by reviewing courts
attempting to fix problems of their own making. Id. ¶ 18. In People v. Presley, 2023
IL App (5th) 230970, ¶ 33, the court found this error to be clear or obvious because
“the plain language of the statute clearly delineates when the State is authorized to
file a petition for detention.” The appellate court correctly demonstrated below that
the interpretations in favor of the State all require courts to read language into the
Pretrial Fairness Act or to apply language from inapplicable subsections. See 2024
IL App (1st) 232479, ¶¶ 35-48. Indeed, the majority concedes that its interpretation
is not based on the Pretrial Fairness Act’s plain language. Rather, the majority states
that it is allowing the State to file the petition to detain as a “practical approach”
(supra ¶ 42) to bridge what it perceives to be a “gap” (supra ¶ 43) in the
legislature’s statutory scheme. Because the Pretrial Fairness Act’s plain language

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admits of only one conclusion, I would hold that defendant has demonstrated a clear
or obvious error.

¶ 81 If a court determines that defendant has established that a clear or obvious error
has occurred, the next step of the plain error analysis turns on which prong of the
plain error rule the defendant has invoked. People v. Moon, 2022 IL 125959, ¶ 23.
Here, defendant has invoked the second prong, and the appellate court concluded
that defendant could obtain relief under that prong. See 2024 IL App (1st) 232479,
¶ 27. Under this prong, the defendant may obtain relief when a clear or obvious
error occurred and the error is so serious that it affected the fairness of the
proceeding and challenged the integrity of the judicial process. Moon, 2022 IL
125959, ¶ 20. The appellate court determined that defendant could satisfy this
standard because “a misapplication of the law that affects a defendant's
fundamental right to liberty constitutes plain error.” 2024 IL App (1st) 232479,
¶ 27.

¶ 82 The appellate court’s reasoning cannot be squared with this court’s case law on
prong two plain error. As this court has clearly explained, it is the rare error that
will qualify as prong two plain error. People v. Jackson, 2022 IL 127256, ¶ 27. The
plain error rule itself is a narrow and limited exception to the forfeiture doctrine,
and very few errors qualify as prong two plain errors. Id. Thus, a defendant
attempting to establish prong two plain error is asking the court to “excuse his
forfeiture under a narrow and limited rule and under a prong of the limited rule that
rarely applies.” Id.

¶ 83 Jackson further delineated the types of errors that qualify as prong two plain
errors:

“The second prong of the plain error rule can be invoked ‘only in those
exceptional circumstances where, despite the absence of objection, application
of the rule is necessary to preserve the integrity and reputation of the judicial
process.’ People v. Herrett, 137 Ill. 2d 195, 214 (1990). This court has equated
the second prong of the plain error rule with ‘structural error.’ Thompson, 238
Ill. 2d at 613-14 (citing People v. Glasper, 234 Ill. 2d 173, 197-98 (2009)). It is
a type of error that ‘erode[s] the integrity of the judicial process and
undermine[s] the fairness of the defendant's trial.’ Herron, 215 Ill. 2d at 186.
Unlike an error reviewable under the first prong of the plain error rule, if a

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defendant succeeds in establishing that structural error occurred, he need not
show that he was prejudiced by the error. Id. at 187. Instead, regardless of the
strength of the evidence of the defendant's guilt, prejudice to the defendant is
presumed because of the importance of the right involved. Id.

The United States Supreme Court has explained that ‘[t]he purpose of the
structural error doctrine is to ensure insistence on certain basic, constitutional
guarantees that should define the framework of any criminal trial.’ Weaver v.
Massachusetts, 582 U.S. 286, 294-95 (2017). The structural errors identified by
the Supreme Court include a complete denial of counsel, denial of self-
representation at trial, trial before a biased judge, denial of a public trial, racial
discrimination in the selection of a grand jury, and a defective reasonable doubt
instruction. Recuenco, 548 U.S. at 218 n.2. The commonality of these errors is
that they affect the framework within which the trial proceeds, rather than mere
errors in the trial process itself. Arizona v. Fulminante, 499 U.S. 279, 310
(1991).

In determining whether an error is structural for purposes of applying the
second prong of Illinois’s plain error rule, we often look to the types of errors
that the United States Supreme Court has found to be structural error and
determine whether the error being considered is similar. Moon, 2022 IL 125959,
¶ 30. However, we have not limited the second prong of Illinois’s plain error
rule to only those types of errors identified as structural by the Supreme Court.
Id. Instead, we may find an error to be structural as a matter of state law
independent from the categories of errors identified by the Supreme Court. Id.”
Id. ¶¶ 28-30.

¶ 84 The appellate court’s determination that any error that affects a defendant’s
fundamental right to liberty is prong two plain error is not correct. If this were true,
every sentencing error would be cognizable as prong two plain error. But this court
just held in People v. Johnson, 2024 IL 130191, that a trial court’s consideration of
an improper factor at sentencing is not cognizable as prong two plain error. We
further explained that “establishing that a forfeited error affected a substantial right
does not grant automatic plain error review but merely satisfies the prerequisite that
the error must affect a substantial right before plain error review is even
considered.” Id. ¶ 67. Accordingly, we specifically overruled a case—People v.

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Haley, 2011 IL App (1st) 093585—that had held that consideration of an improper
sentencing factor is cognizable as prong two plain error on the basis that it affects
a defendant’s fundamental right to liberty. Johnson, 2024 IL 130191, ¶ 69. The very
test for prong two plain error that we rejected in Johnson was the one applied by
the appellate court below. Once the appellate court determined that the error
affected a substantial right, it should have gone on to consider whether the error
was structural.

¶ 85 I cannot conclude that the trial court’s consideration of an untimely petition to
detain under the Pretrial Fairness Act is a structural error requiring automatic
reversal as prong two plain error. The error is statutory rather than constitutional.
The Pretrial Fairness Act generally contemplates the detention decision being made
once. The State may only file a second petition if it alleges facts that were unknown
to it when it filed the original petition. See 725 ILCS 5/110-6.1(d)(2) (West 2022).
And the trial court may only revoke release under the circumstances set forth in
section 110-6. See id. § 110-6. The plain language of the Pretrial Fairness Act does
not allow a petition to detain when a defendant seeks a hearing under section 110-
5(e). However, the legislature would have been perfectly within its right to allow
petitions to detain at this stage of the proceedings without running afoul of the
United States Constitution. Indeed, if the trial court’s consideration of a new
petition to detain in this circumstance were a constitutional violation, then the
majority’s “practical approach” (supra ¶ 42) of allowing the State to file these
petitions would be in violation of the constitution.

¶ 86 Moreover, defendant has not alleged that the detention hearing was
constitutionally deficient in any way. As the Presley court explained, the United
States Supreme Court has determined that, under the fourth amendment (U.S.
Const., amend. IV), a probable cause hearing prior to pretrial detention is sufficient
protection of a defendant’s fundamental right to liberty. See Presley, 2023 IL App
(5th) 230970, ¶ 39 (citing Gerstein v. Pugh, 420 U.S. 103, 114 (1975)). And, under
the Illinois Constitution, pretrial detention is allowed for certain offenses “ ‘where
the proof is evident or the presumption great *** [and] when the court, after a
hearing, determines that release of the offender would pose a real and present threat
to the physical safety of any person.’ ” Id. ¶ 41 (quoting Ill. Const. 1970, art. I, § 9).
Thus, defendant was detained after a hearing that complied with the United States
and Illinois Constitutions, although the hearing occurred at a time not contemplated

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by the Pretrial Fairness Act. For these reasons I am compelled to conclude that,
although a clear and obvious error occurred when the trial court considered the
State’s petition to detain, it was not a structural error cognizable as prong two plain
error. Accordingly, I concur in the court’s judgment reversing the appellate court.

¶ 87 Although I concur in the court’s judgment, I close by once again stating my
strong disagreement with the majority’s analysis. With the adoption of the Pretrial
Fairness Act, the legislature radically altered the Code provisions related to the
ability of courts to detain defendants pretrial. As part of these provisions, the
legislature enacted unmistakably clear directions for what remedy should be
afforded defendants who were ordered released under the previous law but
remained in detention because of circumstances beyond their control. Regrettably,
most appellate court decisions have failed to enforce this clear statutory language
and have instead granted the State the right to relitigate the eligibility of these
defendants for pretrial release. Believing that the State has such a right requires one
to believe that the legislature intended the State to have this right but did not grant
that right in the applicable subsection. Rather, the legislature hid the right elsewhere
in such an obscure manner that appellate court panels would split on whether the
right even existed, and those that believed the State had such a right would not be
able to agree on where it could be found. I do not believe that the legislature
intended any such thing. I believe it intended exactly what it said in section 110-
7.5(b) and 110-7.5(e).

¶ 88 The legislature’s vision for how the Pretrial Fairness Act should work will never
be fully realized if courts are unwilling to enforce it as written. This court should
be leading the way in making this clear, not obstructing the legislature’s intent by
granting the State rights not found in the statute.

¶ 89 JUSTICE O’BRIEN joins in this special concurrence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10787193. Public record. Not legal advice.