The opinion
2024 IL App (1st) 231996-U
No. 1-23-1996B
Second Division
January 4, 2024
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
____________________________________________________________________________
) Appeal from the
THE PEOPLE OF THE STATE OF ) Circuit Court of
ILLINOIS, ) Cook County.
)
Plaintiff-Appellee, )
) No. 23 DV 7523201
v. )
)
JOVANNI BROWN, ) Honorable
) Thomas Nowinski
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court.
Justices McBride and Ellis concurred in the judgment.
ORDER
¶1 Held: We affirm the trial court’s order denying defendant-appellant’s pretrial release
where the court found that there were no less restrictive conditions or combination
of conditions to avoid the defendant’s real and present threat to the safety of any
person or the community.
No. 1-23-1996B
¶2 On October 10, 2023, defendant-appellant, Jovanni Brown, was arrested and charged with
aggravated domestic battery with strangulation, a Class 2 felony, 1 pursuant to section 12-3.3(a-5)
of the Code of Criminal Procedure (720 ILCS 5/12-3.3(a-5), (b) (West 2022)).2 On October 12,
2023, the State filed a verified petition for a pretrial detention hearing pursuant to sections 110-2
and 110-6.1 of the Code (725 ILCS 5/110-2, 110-6.1 (West 2022)), commonly referred to as “the
Safety, Accountability, Fairness, and Equity-Today (SAFE-T) Act” (Act) or the “Pretrial Fairness
Act.” See Pub. Acts 101-652, § 10-255 (eff. Jan. 1, 2023); 102-1104, § 70 (eff. Jan. 1, 2023); Ill.
S. Ct. R. 604(h)(1) (eff. Oct. 19, 2023); Rowe v. Raoul, 2023 IL 129248, ¶ 52 (lifting stay and
setting effective date as September 18, 2023). After appointing counsel for the defendant and
hearing argument on the petition, the trial court granted the State’s request.
¶3 On appeal, the defendant argues that the State failed to meet its burden by establishing,
through clear and convincing evidence, that there were no other conditions or combination of
conditions that could mitigate the defendant’s alleged threat to the complainant. For the reasons
that follow, we affirm.
¶4 I. BACKGROUND
¶5 A. Pretrial Detention Petition
1
As will be discussed later, the record further reflects other pending and separate criminal action
against the defendant that was also addressed by the trial court on the day of his pretrial detention hearing.
2
“Aggravated domestic battery” is defined as the commission of “domestic battery” where the
defendant is alleged to have “strangle[d] another individual” by “intentionally impeding the normal
breathing or circulation of the blood of an individual by applying pressure on the throat or neck of that
individual[,] or by blocking the[ir] nose or mouth ***[.]” 720 ILCS 5/12-3.3(a-5) (West 2022). “Domestic
battery,” on its own, is a Class A misdemeanor and is defined as “knowingly” and “without legal
justification” “caus[ing] bodily harm to any family or household member” or “mak[ing] physical contact
of an insulting or provoking nature with any family or household member.” Id. § 5/12-3.2(a)(1)-(2), (b)
(West 2022). Relevant here, “family or household members” include “persons who have or have had a
dating or engagement relationship.” Id. § 5/12-0.1 (West 2022).
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No. 1-23-1996B
¶6 On October 12, 2023, the State filed its verified petition for pretrial detention. Therein, the
State argued that: the defendant’s charged offense of aggravated domestic battery was an eligible
offense for pretrial detainment pursuant to section 110-6.1(a)(4) of the Code; the defendant posed
a “real and present threat to the safety of any person or persons or the community” based on the
fact that he “punched his girlfriend, the victim, and then strangled her;” and “[n]o condition or
combination of conditions set forth [in the Code] [could] mitigate that risk.”
¶7 Although it is not clear as to whether the following items were attached to the State’s
petition, the record reflects that a supplemental “Public Safety Assessment” conducted by “pretrial
services” indicated that the defendant’s “criminal activity scale” was equated to a “4” out of 6-
point scale, and that the defendant’s measured “failure to appeal” score was also a 4 out of 6.
Additionally, although the report indicated that the defendant did not have any prior misdemeanor
or felony convictions, he had failed to appear in court at least once in the past two years. The report
further indicated that the defendant had a “pending case” for “burglary/criminal damage,” as well
as a “BFW issued on 8/29/2023.” 3 Finally, a Chicago Police Department arrest report indicated
that, upon his arrest at his high school for his immediate criminal charge, the defendant had
attempted to exit and leave the building prior to his arrest.
¶8 B. Pretrial Detention Hearing
¶9 On October 12, 2023, at the defendant’s first initial appearance following his arrest, the
trial court appointed the defendant a public defender and proceeded with the hearing. 4 The State
indicated that it had provided the defendant’s counsel with copies of the complainant’s statement,
3
“BFW” is an acronym for “bond forfeiture warrant,” which can be issued after a defendant fails to
appear at a scheduled court date. Although the pretrial services report lists the BFW as being issued on
August 23, 2023, a Chicago Police arrest warrant indicates it was issued on September 18, 2023.
4
Appointment of an attorney is required under section 110-5(f) of the Code. Id. § 5/110-5(f).
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No. 1-23-1996B
the arrest report, a case report, the complaint, the defendant’s criminal history, and an Illinois Law
Enforcement Agencies Data System (LEADS) report. The State further indicated that the
complainant was electronically present for the hearing via Zoom.
¶ 10 The State subsequently proffered the following in support of its petition. 5 The complainant
was 16 years old, attended the same high school as the defendant, and the two had previously been
involved in a dating relationship which had ended two weeks prior to the incident. The complainant
was said to have been “talking to another boy” at their school, and the defendant received text
messages from that boy and “became angry.”
¶ 11 On October 8, 2023, the defendant and the complainant were together at a Dunkin Donuts
at 4350 North Central Avenue in Chicago, Illinois. After they left the store, the two became
engaged in a verbal altercation relating to the complainant’s interactions with the other boy. The
defendant became upset, and pulled the witness into an alley around 400 North Mason Avenue in
Chicago, Illinois. The defendant began to strike the complainant in the face with closed fists,
knocked her to the ground, pulled her hair, and hit her in the ears. The defendant then “banged”
the complainant’s head against a garage door and concrete, grabbed her by the neck, and choked
her with both hands until she was unable to breathe and almost lost consciousness. The
complainant begged him to stop, to which the defendant responded that he “wanted her gone” and
let go of her neck. During that time, the complainant believed she saw another individual in the
alley, but the individual did not come to assist her.
¶ 12 After the defendant let go of her neck, the complainant was able to run away and noticed
that the defendant began recording the incident on his cell phone. The defendant caught up with
5
We have combined the State’s factual proffers both during the hearing and the written materials
contained in the record together for purposes of efficiency.
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No. 1-23-1996B
the complainant and grabbed her by the arm. The complainant used a small voltage/stunner or
Taser on one of the defendant’s hands to free herself. She then ran to her uncle’s house, which was
located nearby, and the defendant fled in an unknown direction. The complainant called her
mother, who in turn called 911. After Chicago Police officers arrived at the complainant’s uncle’s
home, they observed that she had sustained visible injuries from the incident, including a cut and/or
laceration on her lip, bruising on one of her eyes, and bruising and other red marks around her
neck. The complainant was taken to the hospital that same day for medical treatment.
¶ 13 The State further offered that the defendant also had two pending charges for an unrelated
case, which was a misdemeanor charge for criminal trespass to a vehicle, as well as a felony
burglary charge for which a warrant had been issued. 6 The defendant also had two prior juvenile
cases, namely a 2023 “PCS” 7 and a 2018 battery. The State subsequently rested, and the court
made a finding of probable cause.
¶ 14 In mitigation, the defendant argued that he was 18 years old, was a senior at a Chicago
public high school, and was a lifelong Chicago resident. The defendant had worked at Wendy’s
for about six months at the time of the hearing, and had recently been hired at O’Hare Airport to
provide gate assistance to airline travelers. The defendant was also involved in a group at school
called “Becoming a Man.”
¶ 15 The defendant then challenged the timeline of events as set forth by the State. According
to the defendant, he and the complainant had discussed her being involved with another individual.
The defendant indicated that he no longer wanted to be in a relationship with her and attempted to
6
The documentary record is silent on these charges, but it appears the two were brought within the
same case.
7
The record is not clear as to the meaning of this acronym and we decline to ascribe one here.
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No. 1-23-1996B
leave the conversation. The complainant became upset and tried to prevent him from leaving by
grabbing and hitting him, which resulted in some bruising to his chest. The defendant maintained
that his only physical contact with the complainant was his attempt to grab her to get her off him,
and he denied ever hitting or slamming her against a wall. With regard to the complainant’s
injuries, the defendant proffered that she had been involved in a separate physical altercation with
another individual three days earlier, in which she had sustained injuries. The defendant further
speculated that, if in fact the complainant had observed someone else at the scene, then that person
would have likely stepped in to intervene based on the alleged intensity and violence of their
encounter.
¶ 16 Last, the defendant argued that pretrial detention was unnecessary because there were
conditions or a combination of conditions that could be put in place to ensure the complainant’s
safety. The defendant pointed out that no further incidents or threats of harm had occurred between
the two, and that his criminal history was devoid of any further domestic-related arrests or
convictions. As such, the defendant reasoned that any additional safety concerns could be
mitigated by GPS monitoring or home confinement. The defendant also pointed out that there was
already an order of protection in place that prohibited him from being near the complainant and
her family, as well as requiring for him to be at least 30 feet away from her at their shared high
school. 8
¶ 17 The State did not reply to the defendant’s mitigation argument and thus did not address his
request for GPS monitoring or home confinement. Last, the court asked for the recommendation
of a representative from “pretrial services,” who indicated that the defendant’s “new violent
8
The record does not contain any documentary evidence of this particular order of protection.
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No. 1-23-1996B
criminal activity flag [was] a yes, new criminal activity scale [was] a four[,] and failure to appear
scale [was] a four.” As such, the representative recommended “the maximum conditions” for the
defendant.
¶ 18 C. Trial Court Ruling
¶ 19 At the conclusion of the hearing, the court orally granted the State’s request and denied
pretrial release, stating, in full:
“THE COURT: *** Taking into account the factors in determining dangerousness,
including the defendant’s background, the age of the [complainant], who is 16 years old,
the fact that it’s proffered that the defendant strangled the [complainant] to the point where
she couldn’t breathe, that he did all this while having a pending case where there was an
arrest warrant issued for his arrest that we will get to, and I am really taking into
consideration the fact that *** the [complainant] is 16, and again, that this was done while
there was pending charges against him, already, I find that the State has proven by clear
and convincing evidence that the proof is evident and the presumption is great that the
defendant has committed the offense of aggravated domestic battery, and that the defendant
poses a real and present threat to the safety of any person, most importantly the
[complainant] who is 16 years old; that he strangled her to the point where she couldn’t
breathe, and that there are no conditions or combination of conditions to the [c]ourt that
can mitigate the real and present threat to the safety of *** any person.”
¶ 20 The court’s oral ruling was memorialized in a written order that same day. Therein, the
court made the following findings. First, the court found that “[t]he proof [was] evident or the
presumption great that the defendant has committed an eligible offense listed” within section 110-
6.1(a) of the Code, namely aggravated battery, where the defendant was alleged to have strangled
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No. 1-23-1996B
the complainant. Second, the court found that the “defendant pose[d] a real and present threat to
the safety of any person or persons or the community, based on the specific articulable facts of the
case,” where the defendant “strangled a minor to [the] point where she could not breath[e,]” as
well as the defendant’s prior criminal background. Third, the court found that “[n]o condition or
combination of conditions set forth” in section 110-10(b) of the Code could “mitigate the real and
present threat to the safety of any person or persons or community based on the specific articulable
facts of the case,” and that “[l]ess restrictive conditions would not avoid a real and present threat
to the safety of any person or persons or the community, based on the specific and articulable facts
of the case[.]” As to this point, the court found that the defendant had “high scores from pretrial
[services], [a] criminal background, [and] strangulation of a minor victim.” 9 As such, the defendant
was ordered to be detained pending all further court proceedings.
¶ 21 This appeal followed.10
¶ 22 II. ANALYSIS
¶ 23 A. Jurisdiction
¶ 24 Although neither party raises this concern, we must first address our jurisdiction over this
appeal prior to evaluating its merits. This appeal comes to us from the granting of the State’s
petition for pretrial detention. Pursuant to article VI, section 6 of the Illinois Constitution, our
9
In its oral ruling, the trial court also specifically noted that the defendant had a pending criminal
matter with an arrest warrant, which it later addressed following its grant of the State’s petition. Specifically,
with regard to the pending burglary charge, the court executed a warrant and detained defendant. With
regard to his criminal trespass to a vehicle charge, the court conducted a “conditions” hearing for the non-
detainable offense and found probable cause. Finally, the court noted that an order of protection had been
entered against him pursuant to “Case No. 23 OP 78942,” with the “protected parties” being “Marla Gomez”
on behalf of the complainant in this case, as well as Marla Gomez and one other party. The court ordered,
among other conditions, that defendant was to have no communication with the complainant and was to
remain at least 30 feet away from her while in common areas of their shared high school.
10
Pursuant to Supreme Court Rule 604(h)(2) (eff. Oct. 19, 2023), the defendant declined to file a
memorandum in support of his appeal, and instead has elected to stand on his notice of appeal.
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No. 1-23-1996B
supreme court has promulgated rules to allow for certain appeals in criminal, postconviction, and
juvenile court proceedings. See Ill. Const. 1970, art. VI, § 6. Relevant here, Illinois Supreme Court
Rule 604(h) (eff. Oct. 19, 2023) (same version in effect at time of appeal) governs appeals from
orders under the Act which grant petitions to deny pretrial release. Both the State and the defendant
may appeal any interlocutory orders imposing conditions of pretrial release. 725 ILCS 5/110-5(k)
(West 2022); see also Ill. S. Ct. R. 604(h), 604(h)(1)(iii). A notice of appeal must be filed within
14 days of the order denying pretrial release. Ill. S. Ct. R. 604(h)(2).
¶ 25 Here, the record reflects that the defendant properly appealed an interlocutory order
denying his pretrial release, and his appeal is timely. The order was entered on October 12, 2023,
and the defendant filed a notice of appeal on October 26, 2023, at 6:44 p.m. Pursuant to Illinois’
statute on statutes, the proper computation regarding the timeliness of an appeal does not include
the first day the notice of appeal was filed (here, October 12), but includes the last day (October
26), thus rendering the defendant’s appeal to have been filed within 13 days. See 5 ILCS 70/1.11
(West 2022) (computing timelines within a statute); 5 ILCS 70/1.39 (West 2022) (application to
the Code of Criminal Procedure of 2012). Even assuming October 26 counted as the 14th day, our
supreme court rules allow for timely electronic filing up until midnight for a given deadline. See
Ill. S. Ct. R. 9(d) (eff. Feb. 4, 2022). Therefore, we have jurisdiction over this appeal.
¶ 26 B. The Act
¶ 27 As noted by the State, the defendant’s only challenge on appeal concerns the trial court’s
finding that there were no conditions or combination of conditions that could have been put in
place to mitigate any risk he posed to the complainant, her family, or the community at large. As
such, he does not challenge that his aggravated domestic battery charge was a detainable offense
under the Act. He also does not challenge the trial court’s finding of “dangerousness,” although
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No. 1-23-1996B
the State appears to characterize the assessment of this finding as whether the State proved, “by
clear and convincing evidence, that he committed the charged offense.” See 725 ILCS 5/110-
6.1(a)(1.5). Given the newness of the statutory scheme at issue, as well as its numerous overlapping
discretionary considerations, we begin with a summary of the relevant sections of the Act.
¶ 28 1. The Petition and Hearing
¶ 29 The Act presumes that all persons charged with an offense shall be eligible for pretrial
release prior to conviction. Id. § 110-2(a); § 110-6.1(e). Therefore, “[p]retrial release may be
denied only if a person is charged with an offense” as delineated within section 110-6.1 of the Act,
and if the court has conducted a corresponding hearing. (Emphasis added.) Id. § 110-2; § 110-
6.1(e)-(f). Pretrial detention should only be ordered to effectuate the Act’s goals, which include
reasonable assurance of an eligible person’s appearance in court, ensuring the safety of any other
person or the community, the prevention of any attempt or obstruction of the criminal justice
process, and ensuring compliance with all conditions of release. Id. § 110-2(e).
¶ 30 The State will trigger the requirement for a pretrial detention hearing upon its timely filing
of a verified petition for detainment. Id. § 110-6.1(a). The State must prove three elements in its
petition, which it bears the burden of proving by clear and convincing evidence. Id. § 110-6.1(e).
First, it must show that the “proof is evident or the presumption great” that the defendant has
committed an eligible detainable offense. Id. § 110-6.1(e)(1). Next, for the eligible offense of
aggravated domestic battery, the State must show that a defendant “poses a “real and present threat
to the safety of any persons or persons or the community, based on the specific articulable facts
[of their case],” which may include conduct involving a forcible felony, the obstruction of justice,
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No. 1-23-1996B
intimidation, injury, or abuse. Id. § 110-6.1(e)(2). 11 Finally, the State must also allege that there
are “no conditions or combinations set forth” within the Act that could mitigate that real and
present threat to the safety of any person, persons, or the community, based on the facts of the
case. Id. § 110-6.1(e)(3). The State may utilize evidence of a defendant’s available criminal
history, any written or recorded statements, police reports, and evidence “by way of proffer based
upon reliable information.” Id. § 110-6.1(f)(1), (2); see also § 110-6.1(f)(5) (evidentiary
admissibility rules for criminal trials do not apply to pretrial detention hearings).
¶ 31 Following the filing of the State’s petition, the trial court must hold a hearing. Id. § 110-
6.1(a), (c), (f). In addition to evaluating the merits of the petition, the court must also assess
“whether there is probable cause the defendant has committed [the charged] offense[.]” Id. § 110-
6.1(b). If there is no such finding, the defendant must be released. Id. § 110-6.1(b). The court may
utilize statewide risk-assessment tools to evaluate the likelihood of a defendant’s appearances at
future court proceedings or if the defendant poses a real and present threat. Id. § 110-6.4. Each
11
A finding as to whether a defendant “poses a real and present threat to the safety of any person or
persons or the community” is also referred to as a finding of “dangerousness.” Id. § 110-6.1(g). As noted
above, the defendant does not challenge the trial court’s finding of “dangerousness.” However, many of the
factors used to determine “dangerousness” overlap with the factors used to determine whether there are
available conditions of release that could offset a defendant’s dangerousness. They include: “(1) The nature
and circumstances of any offense charged, including whether the offense is a crime of violence, involving
a weapon, or a sex offense; (2) The history and characteristics of the defendant[;]; (3) The identity of any
person or persons to whose safety the defendant is believed to pose a threat, and the nature of the threat; (4)
Any statements made by, or attributed to the defendant, together with the circumstances surrounding them;
(5) The age and physical condition of the defendant; (6) The age and physical condition of any victim or
complainant; (7) Whether the defendant is known to possess or have access to any weapon or weapons; (8)
Whether, at the time of the current offense or any other offense or arrest, the defendant was on probation,
parole, aftercare release, mandatory supervised release or other release from custody pending trial,
sentencing, appeal or completion of sentence for an offense under federal or state law; (9) Any other factors,
including those listed in Section 110-5 of this Article deemed by the court to have a reasonable bearing
upon the defendant’s propensity or reputation for violent, abusive, or assaultive behavior, or lack of such
behavior.” Id. § 110-6.1(g).
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No. 1-23-1996B
decision regarding release is individualized, and no single factor or standard is determinative. Id.
§ 110-6.1(f)(7).
¶ 32 3. Conditions of Release
¶ 33 If the court determines that there is probable cause and that the State has met its burden on
its petition, the court must make a written finding which summarizes its reasons for pretrial
detention. Id. § 110-6.1(h)(1)-(4). Relevant here, if the court finds that the State has proven the
third element of its petition, that there are no such conditions that could mitigate a defendant’s real
and present threat, the court must also include in its order why “less restrictive conditions would
not avoid a real and present threat to the safety of any person or persons or the community, based
on the specific articulable facts of the case[.]” Id.
¶ 34 Conditions of release are proper when “it is determined that they are necessary to ensure
the defendant’s appearance in court, [to] ensure the defendant does not commit any criminal
offense, [to] ensure the defendant complies with all conditions of pretrial release, [to] prevent the
defendant’s unlawful interference with the orderly administration of justice, or [to] ensure
compliance with the rules and procedures of problem solving courts.” Id. § 110-10(b). Certain
conditions are “mandatory” as provided for within section 110-10(a) of the Act, while others are
discretionary in nature. Id. § 110-5(c). Regardless, such conditions must be “the least restrictive
means” and “individualized.” Id., § 110-10(b). The trial court may also use a “regularly validated
risk assessment tool” to aid in its determination of appropriate conditions of release. Id. § 110-
5(b). Overall, the trial court is empowered to impose “other reasonable conditions,” “so long as
these conditions are the least restrictive means to achieve the goals” of the Act. Id. § 110-10(b)(9).
¶ 35 Relevant here, some conditions may include pretrial home supervision with electronic
monitoring, or compliance with the terms and conditions of an order of protection. See Id. § 110-
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No. 1-23-1996B
10(b)(5), (7). Electronic monitoring, GPS monitoring, or home confinement can only be imposed
as a condition of pretrial release if “no less restrictive condition of release or combination of less
restrictive condition[s] of release would reasonably ensure the appearance of the defendant for
later hearings” or to “protect an identifiable person or persons from imminent threat of serious
physical harm.” Id. § 110-5(g). Such a finding must be included in the court’s written order. Id. §
110-5(h).
¶ 36 4. Determining Whether Conditions of Release are Proper
¶ 37 To determine whether any conditions of release are proper, the court considers similar
factors to those used to assess “dangerousness,” which are contained in section 110-5(a) of the
Act. Id. § 110-5(a). As shown below, these factors focus heavily on the nature of the crime, the
personal profile of a given defendant, and his perceived threat to the complaint and community at
large. Such factors include:
“(1) the nature and circumstances of the offense charged;
(2) the weight of the evidence against the defendant, except that the court may
consider the admissibility of any evidence sought to be excluded;
(3) the history and characteristics of the defendant; 12
(4) the nature and seriousness of the real and present threat to the safety of any
person or persons or the community, based on the specific articulable facts of the case, that
12
“History and characteristics” as defined within this section differs slightly from the definition
contained within section 110-6.1 governing “dangerousness.” Here, they are defined as: “(A) the
defendant’s character, physical and mental condition, family ties, employment, financial resources, length
of residence in the community, community ties, past relating to drug or alcohol abuse, conduct, history[,]
criminal history, and record concerning appearances at court proceedings; and (B) whether, at the time of
the current offense or arrest, the defendant was on probation, parole, or on other release pending trial,
sentencing, appeal, or completion of sentence for an offense under federal law, or the law of this or any
other state.” Id. § 110-5(a)(3)(A)-(B).
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No. 1-23-1996B
would be posed by the defendant’s release, if applicable, as required under paragraph (7.5)
of Section 4 of the Rights of Crime Victims and Witnesses Act;
(5) the nature and seriousness of the risk of obstructing or attempting to obstruct
the criminal justice process that would be posed by the defendant’s release, if applicable.”
Id. § 110-5(a)(1-5).
¶ 38 In addition, if a defendant is charged with aggravated battery against a spouse or former
partner with whom they have or had a cohabitation or dating relationship, the court also considers:
“(A) whether the alleged incident involved harassment or abuse, 13 as defined in the
Illinois Domestic Violence Act of 1986;
(B) whether the person has a history of domestic violence, as defined in the Illinois
Domestic Violence Act of 1986, or a history of other criminal acts;
(C) the mental health of the person;
(D) whether the person has a history of violating the orders of any court or
governmental entity;
(E) whether the person has been, or is, potentially a threat to any other person;
(F) whether the person has access to deadly weapons or a history of using deadly
weapons;
(G) whether the person has a history of abusing alcohol or any controlled substance;
13
“Abuse” as defined within the Illinois Domestic Violence Act of 1986 as “physical abuse,
harassment, intimidation of a dependent, interference with personal liberty or willful deprivation but does
not include reasonable direction of a minor child by a parent or person in loco parentis.” 750 ILCS 60/103(1)
(West 2022). “Harassment” is defined as “knowing conduct which is not necessary to accomplish a purpose
that is reasonable under the circumstances; would cause a reasonable person emotional distress; and does
cause emotional distress[]” and can include “threatening physical force, confinement, or restraint on one or
more occasions.” Id. § 60/103(7), 60/103(7)(vi).
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No. 1-23-1996B
(H) the severity of the alleged incident that is the basis of the alleged offense,
including, but not limited to, the duration of the current incident, and whether the alleged
incident involved the use of a weapon, physical injury, sexual assault, strangulation, abuse
during the alleged victim’s pregnancy, abuse of pets, or forcible entry to gain access to the
alleged victim;
(I) whether a separation of the person from the victim of abuse or a termination of
the relationship between the person and victim of abuse has recently occurred or is pending;
(J) whether the person has exhibited obsessive or controlling behaviors towards the
victim of abuse, including, but not limited to, stalking, surveillance, or isolation of the
victim of abuse or the victim’s family member or members;
(K) whether the person has expressed suicidal or homicidal ideations; and
(L) any other factors deemed by the court to have a reasonable bearing on the
defendant’s propensity or reputation for violent, abusive, or assaultive behavior, or lack of
that behavior.” Id. § 110-5(a)(6)(A)-(L).
¶ 39 With this framework in mind, we now turn to the merits of the defendant’s appeal.
¶ 40 C. Standard of Review
¶ 41 The parties take conflicting views on the standard of review in this proceeding. The
defendant argues that the standard of review on appeal is “clear and convincing evidence,” which,
according to him, equates to a “quantum of proof that leaves no reasonable doubt in the factfinder’s
mind about the truth of the proposition in question,” citing In re Tiffany W., 2012 IL App (1st)
102402-B in support. Here, the defendant continues, clear and convincing evidence “amounts to
more than preponderance [of the evidence] while not quite reaching the degree of proof necessary
to convict an individual of a criminal charge.”
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No. 1-23-1996B
¶ 42 The State responds that the correct standard is abuse of discretion, citing a recent case from
the Fourth District addressing the same statute, People v. Inman, 2023 IL App (4th) 230864, as
well as opinions which assessed our state’s prior bail provisions, People v. Simmons, 2019 IL App
(1st) 191253, and People v. Johnson, 2019 IL App (3d) 190582. However, the State argues, even
if the appropriate standard is manifest weight of the evidence, the trial court’s decision to detain
the defendant should still be affirmed.
¶ 43 There is, without question, some debate among the appellate districts, and even among the
divisions in the First District, concerning the appropriate standard of review. See People v.
Herrera, 2023 IL App (1st) 231801, ¶¶ 22-24 (observing split between districts regarding abuse
of discretion and manifest weight of the evidence standard under the Act). Although the Act
provides that the State’s burden on a pretrial detention petition is “clear and convincing evidence,”
under the previous regime for bond hearings and their subsequent appeals, we employed an abuse
of discretion standard. See Simmons, 2019 IL App (1st) 191253, ¶ 9; see also Inman, 2023 IL App
(4th) 230864, ¶ 10. Because the new statute does not expressly provide for a new or different
standard of review, some courts have determined that the abuse of discretion standard is still
applicable. See People v. Whitmore, 2023 IL App (1st) 231807 ¶ 18 (noting no clear legislative
intent within the new statute to disrupt such precedent); see also Inman, 2023 IL App (4th) 230864,
¶ 11 (observing that in reviewing an appeal brought pursuant to Supreme Court Rule 604(h), “we
are not reviewing the State’s evidence anew” and instead “are reviewing the circuit court’s
evaluation of that evidence[.]”). However, some courts have stated that the trial court’s factual
findings under the statute should be resolved under a manifest weight of the evidence standard.
See People v. Rodriquez, 2023 IL App (3d) 230450, ¶ 8; People v. Stock, 2023 IL App (1st)
231753, ¶ 12; People v. Gibbs, 2023 IL App (5th) 230700-U, ¶ 5 (evaluation of the
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No. 1-23-1996B
“dangerousness” prong of the Act is reviewed pursuant to the manifest weight of the evidence
standard). 14 Other courts have said the same standard applies when assessing whether conditions
of pretrial release could mitigate any dangerousness posed by a defendant. See People v. Vingara,
2023 IL App (5th) 230698, ¶ 10. Finally, other courts have also articulated the standard as de novo,
even when evaluating the propriety of the trial court’s assessment of the proffered evidence and
what condition or combinations may be appropriate. See People v. Battle, 2023 IL App (1st)
231838, ¶¶ 17-18.
¶ 44 As noted by another panel in our district, “[w]e expect there is much left to be said about
the standard of review[,] [b]ut this is not the case to resolve it.” Herrera, 2023 IL App (1st) 231801,
¶ 24. Here, we also need not resolve this issue because, under any standard, our conclusion as to
whether the trial court properly ordered detention would be the same. See Whitmore, 2023 IL App
(1st) 231807 ¶ 18 (citing Simmons, 2019 IL App (1st) 191253, ¶ 9 (a trial court’s decision shall
only be reversed if found to be “arbitrary, fanciful[,] or unreasonable[,] or when no reasonable
person would agree with the position adopted by the trial court.” (Internal quotation marks
omitted.); see also Vingara, 2023 IL App (5th) 230698, ¶ 10 (“[a] finding is against the manifest
weight of the evidence only if the opposite conclusion is clearly evident or if the finding itself is
unreasonable, arbitrary, or not based on the evidence presented.”) (Internal quotations and citations
omitted.) For the reasons that follow, we do not believe it was unreasonable for the trial court to
determine that there were no conditions or combinations of conditions that could have mitigated
the harm posed by the defendant.
14
Subsequently, though, the same court stated that consideration of the statutory factors described
above to determine whether the trial court properly determined “dangerousness” is reviewed for abuse of
discretion. Gibbs, 2023 IL App (5th) 230700-U, ¶ 5; see also People v. Flores-Hidalgo, 2023 IL App (1st)
231837-U, ¶¶ 13-14.
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No. 1-23-1996B
¶ 45 C. Whether There Were Conditions to Mitigate the Defendant’s Real and Present Threat15
¶ 46 The defendant contends that the trial court could have placed various conditions on him to
allow for his release that would have sufficiently mitigated any potential threat he posed to the
complainant. The defendant notes that the State did not proffer any other evidence of continuing
communication between him and the complainant prior to his arrest at school, where both he and
the witness were enrolled. Additionally, the defendant continues, the State did not show evidence
of any other domestic battery convictions or arrests. As such, the defendant reasons, the court
could have ensured the complainant’s safety through a no-contact order, GPS and/or home
confinement, or electronic home monitoring. The defendant further points out that an order of
protection was already entered against him from a case filed by the complainant’s mother, where
he was already prohibited from having contact with the complainant and her family, and in the
event that they were both present at school together, he was required to be at least 30 feet away
from her.
¶ 47 The State responds that the record supports the trial court’s decision to detain the defendant.
According to the State, its proffer demonstrated that the defendant posed a real and present threat
to the complainant based on his actions toward her on October 8, which in turn “reflected an
inability or unwillingness to manage his anger, control his aggression, and restrain himself from
attempting to inflict additional harm on an already injured individual seeking to escape.”
Additionally, the State continues, the defendant already had an extensive criminal history in light
of his age, which included two juvenile adjudications for battery and possession of a controlled
15
The defendant’s notice of appeal challenges the trial court’s conclusion that no conditions or
combination of conditions could mitigate the defendant’s real and present threat to the safety of any person,
persons, or the community. The defendant filed no supporting memorandum, electing to stand on his notice.
Accordingly, we confine our review to the sole issue identified in the notice of appeal.
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No. 1-23-1996B
substance, as well as two open cases arising from incidents that occurred prior to the instant matter
and which further involved a pending warrant for a felony burglary charge. As such, the State
reasons, the defendant’s actions reflect his “total disregard for the law and the authority of the
court,” indicating that there were no such conditions that could have mitigated the threat.
¶ 48 We turn to the record. As noted prior, in its oral ruling, the trial court made three express
findings, the first being that the State had proved by clear and convincing evidence that the
defendant had committed the charged offense of aggravated domestic battery. Next, it expressly
stated that there were “no conditions or combination of conditions *** that [could] mitigate the
real and present threat to the safety *** of any person.” In particular, the court highlighted the
“defendant’s background,” the “age of the victim,” the fact that the defendant strangled the
complainant to the point where she could not breathe, and that defendant also had a pending
warrant for his arrest in a separate case. Further, in its written ruling, the court found that no
condition or combination of conditions could mitigate the real and present threat, and there were
no less restrictive conditions that existed to avoid a real present harm, based on the defendant’s
“high scores from pretrial, criminal background, [and] strangulation of [the] minor victim.”
¶ 49 In its oral ruling, the trial court appeared to combine its “dangerousness” and “conditions”
findings, which, as demonstrated above, is reasonable, given that many of the factors evaluating
the propriety of conditions in section 110-5(a) overlap with those in section 110-6.1 assessing
“dangerousness.” See Id. § 110-5(a), 110-6.1(g). However, on this point, we must first reiterate
the role of the State in these proceedings. The Act places the burden on the State to show clear and
convincing evidence not just of a given defendant’s dangerousness, but also whether there are no
such conditions that could mitigate a given defendant’s real and present threat. On this point, we
find a discussion authored by another panel within our district to be instructive. In People v. Stock,
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No. 1-23-1996B
2023 IL App (1st) 231753, we reversed and remanded the trial court’s finding that no condition or
combination of conditions could mitigate the threat posed by defendant. Id. ¶¶ 21-22. There, the
State filed a petition to detain the defendant after he was charged with one count of aggravated
battery/discharge of a firearm. Id. ¶ 1. The State’s proffer was that the defendant became angry at
his estranged wife as she packed her belongings to leave the marital home after telling him she
planned to file for divorce. Id. ¶ 5. The defendant threw a broom at his wife and her friends, then
went into the bedroom, picked up a handgun, and discharged one round into the bedroom wall. On
the other side of the wall was an adjoining bathroom, where the defendant’s wife was present at
the time of the gunshot. Id. The discharged round penetrated the wall, and the wife suffered a
grazing wound to her stomach and an injury to her hand from shrapnel from the fragmented bullet.
Id.
¶ 50 The State also offered the recommendation of pretrial services through a public safety
assessment of the defendant, which reported scores of “1 out of 6” on the “new criminal activity
scale” and a “1 out of 6” on the “failure to appear” scale. Id. ¶ 7. In mitigation, the defendant
argued that he was 45 years old, held both college and graduate degrees, was employed full time,
and did not have any prior criminal history. Id. ¶ 6. As such, the defendant requested either home
confinement or GPS monitoring instead of pretrial detention. Id. Subsequently, the trial court
found that the State met its burden on all elements of the petition and ordered the defendant to be
detained. Id. ¶ 7. In its written form order, in the space provided to describe why the State had
proved the third element that no condition or combination of conditions could mitigate the real and
present threat to the safety of any person or the community, the court “simply” wrote that “[t]he
defendant shot a firearm at the complaining witness.” Id. ¶ 8.
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No. 1-23-1996B
¶ 51 On appeal, we determined that the State failed to meet its burden on the third element
because it had presented “no evidence” on this element. (Emphasis added). Id. ¶ 17. We noted, in
part, that the State had merely provided a “conclusory statement” as to the conditions element of
the Act, and had never referenced or discussed these conditions as shown throughout the record.
Id. We further stated that:
“It must be noted that, logically, the bare allegations that [the] defendant has
committed a violent offense are not sufficient to establish this element. Our legislature has
mandated that all criminal defendants are eligible for pretrial release. *** Thus, even those
accused of violent offenses are presumed eligible for pretrial release, and it is the State who
must justify their pretrial detention. *** This is not to say that alleged facts stating the basic
elements of an offense are not relevant or are not part of the proof that no conditions could
mitigate the threat posed by a defendant. But more is required. If the base allegations that
make up the sine qua non of a violent offense were sufficient on their own to establish this
element, then the legislature would have simply deemed those accused of violent offenses
ineligible for release.” (Emphasis added.) (Internal citations omitted.) Id. ¶ 18.
¶ 52 Notably, however, the Stock court also observed that the trial court had too fallen short of
its statutory duties under the Act. Id. ¶ 20. As noted prior, the trial court must also make written
findings as to why less restrictive conditions would not avoid a real and present threat to the safety
of any person and community. 725 ILCS 5/110-6.1(h)(1). The Stock court found no such
compliance in the court’s written order, and even when taking into account the court’s oral
pronouncement, no such reasoning could be deduced. Instead, the Stock court noted, the trial court
had simply written that the defendant had shot a firearm at the witness.
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No. 1-23-1996B
¶ 53 In the case at bar, we observe that, as in Stock, the State supplemented its petition with a
pretrial supplemental assessment report assessing the defendant’s criminal history. It is also true
that here, as in Stock, a representative testified on behalf of pretrial services. Finally, as in Stock,
the State did not offer any additional information or argument in either its petition or before the
trial court as to why any available conditions were insufficient, even after defense counsel in both
cases raised the possibility of GPS monitoring or home confinement.
¶ 54 However, the factual similarities between our case and Stock end there, and thus are the
reasons why that, despite the deficiencies in the State’s proffer before us today, we nonetheless
find that there was sufficient evidence in the record for the trial court to conclude that pretrial
detention was necessary. Under the Act, not only is the trial court empowered to consider the
assessment of pretrial services, but it may also consider the defendant’s history, characteristics,
and noncompliance with court orders or any other governmental entity. Id. § 110-6.4, 110-5(a)(3),
110-5(a)(5), § 110-5(b). In Stock, the defendant had no prior criminal history. In contrast here, the
record reflects that, within a short timeframe, the defendant had already accumulated unrelated
charges, including criminal trespass to a vehicle and felony burglary charge with an accompanying
arrest warrant for failure to appear, which was discussed by both the State at the hearing and was
included in the pretrial supplement assessment report. 16 Further, although we do not have
documentary evidence in the record concerning these convictions, the defendant also did not deny
that he had been adjudicated at least twice as a juvenile. Finally, unlike in Stock, a representative
16
We are mindful, however, that the Act cautions our focus on this factor. See Id. § 110-1 (isolated
instances of nonappearance in court alone are not necessarily evidence of a willful flight risk, but can be
considered as factors in assessing any future attempts to evade prosecution
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No. 1-23-1996B
from pretrial services scored the defendant “4” out of “6” on its relevant assessment scores,
whereas the defendant in Stock scored “1” out of “6.”
¶ 55 The court also properly considered the nature and circumstances of the charged offense,
including the fact that the offense was domestic in nature. Id. § 110-5(a)(1), § 110-5(a)(6)(A)-(L).
The State proffered that the complainant was 16 years old, that the two attended the same high
school, and that defendant was alleged to have strangled the complainant to the point where she
could not breathe. The trial court expressly noted these considerations in its oral ruling, as well as
in his written order. The weight of the evidence of the charge itself was also considered, where the
court found evidence of probable cause, as well as that the State had proved, by clear and
convincing evidence, that the “proof [was] evident or the presumption great that the defendant”
had committed the crime of aggravated domestic battery. See Id. § 110-5(a)(2). Although the State
and the defendant provided opposing proffers as to the nature of the altercation between himself
and the complainant, the defendant admitted to some kind of physical encounter between the two,
and we are further mindful that the trial court is in the best position to assess the proffer and the
credibility of the witnesses before it. See People v. Slim, 127 Ill. 2d 302, 307 (1989).
¶ 56 Further, we note that much of the defendant’s argument concerning whether any such
conditions could mitigate his posed threat are solely directed towards the safety of the complainant
and her family. This, however, glosses over any assessment as to whether he is dangerous to the
community in general, which was also properly taken into account by the trial court See Id. § 110-
5(a)(4). As delineated multiple times throughout the Act, pretrial detention is meant to serve more
than the safety of the immediate victim of harm, but also the larger community, whose safety
appears to have been already at risk based on the defendant’s pending burglary and criminal
trespass to vehicle charges. See Id. § 110-6.1(a)(1), (e)(2)-(3).
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No. 1-23-1996B
¶ 57 Accordingly, based on our careful review of the record, and mindful of the State’s burden
on its petition, we agree that no such conditions would have been sufficient to justify the
defendant’s release given his continuing and escalating pattern of violence, his previous attempts
to evade prosecution in this case and others, and the fact that the complainant was a minor with
whom he had been romantically involved. In our view, the trial court properly assessed that the
defendant’s real and present threat to both the complainant and the community at large could not
be mitigated with any lesser restrictive means. Accordingly, we do not find that the trial court
committed error in granting the State’s request for the defendant’s detainment prior to trial.
¶ 58 III. CONCLUSION
¶ 59 For the reasons stated, we affirm the judgment of the circuit court.
¶ 60 Affirmed.
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