The opinion
2024 IL App (2d) 240128-U
No. 2-24-0128
Order filed April 17, 2024
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(l).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of De Kalb County.
)
Plaintiff-Appellee, )
)
v. ) No. 24-CF-67
)
DALE H. TWEED, ) Honorable
) Philip G. Montgomery,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE MULLEN delivered the judgment of the court.
Justice Birkett concurred in the judgment.
Presiding Justice McLaren specially concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in granting the State’s petition to deny pretrial release and
ordering defendant detained.
¶2 I. INTRODUCTION
¶3 Defendant, Dale H. Tweed, appeals an order of the circuit court of De Kalb County granting
the State’s petition to deny him pretrial release pursuant to article 110 of the Code of Criminal
Procedure of 1963 (Code) (725 ILCS 5/art. 110 (West 2022)). For the reasons that follow, we
affirm.
2024 IL App (2d) 240128-U
¶4 II. BACKGROUND
¶5 Defendant was charged with the following offenses in cause no. 2024-CF-67: two counts
unlawful possession of a firearm by a felon (720 ILCS 5/24-1.1(a) (West 2022)); two counts
unlawful possession of firearm ammunition by a felon (720 ILCS 5/24-1.1(a) (West 2022)); and
two counts possession of a firearm without requisite firearm owner’s identification (FOID) card
(430 ILCS 65/2(a)(2) (West 2022)). Defendant does not contest the existence of a qualifying
offense for detention, nor did he assert that the proofs of the crimes were not evident or the
presumption great.
¶6 Defendant, using the standardized notice of appeal form for detention decisions, checked
boxes indicating three general points of appeal: (1) the State failed to meet its burden of proving
by clear and convincing evidence that defendant poses a real and present threat to the safety of any
person or persons or the community, based on the specific, articulable facts of the case; (2) the
State failed to meet its burden of proving by clear and convincing evidence that no condition or
combination of conditions can mitigate the real and present threat to the safety of any person or
persons or the community, based on the specific, articulable facts of the case, or defendant’s willful
flight; and (3) the court erred when it determined that no condition or combination of conditions
would reasonably ensure the appearance of defendant for later hearings or prevent defendant from
being charged with a subsequent felony or Class A misdemeanor. Using the lines provided below
the checkboxes, defendant elaborated on his claims of error. Defendant did not file a memorandum
on appeal.
¶7 III. ANALYSIS
¶8 A word about forfeiture is in order. The Notice of Appeal (NOA) in this case elaborated
extensively—relative to other appeals under Rule 604(h)—on its claims of error. Although this
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elaboration falls far short of what we would ordinarily expect from an appellant, we hold that the
supreme court rules applicable to this case 1 require less concerning detention appeals. As the court
said in People v. Inman, 2023 IL App (4th) 230864, ¶ 10, “the Act ushered in a new reality.”
Supreme Court Rule 604(h), as initially amended by article 110 of the Code, “provide[d] a new
procedure for these appeals,” (Inman, 2023 IL App (4th) 230864, ¶ 11) and “a demonstrably
different process.” Inman, 2023 IL App (4th) 230864, ¶ 13. A standardized form NOA was
approved by our supreme court and contained check boxes from which the appellant could choose
issues to contest and lines below the issues accommodated. Id. The previous Rule 604(h) required
the notice of appeal to include a description of the relief to be requested “and the grounds for the
relief requested.” 2 Ill. S. Ct. R. 604(h) (eff. Oct. 19, 2023) (Emphasis added). A memorandum on
appeal was allowed but not required. Ill. S. Ct. R. 604(h)(2) (eff. Oct. 19, 2023).
1
These rules have been amended again, effective April 15, 2024. See M.R. 3140, amending
Illinois Supreme Court Rules 361, 604, 605, 606, and 613. Hopefully, under the newly amended
rules, this issue will be less troublesome. The newly amended rules offer more information about
what is expected from the appellant on appeal.
2
The amendment taking effect April 15, 2024, deletes this language, and requires a motion
for relief filed in the trial court “[a]s a prerequisite to appeal,” (Ill. S. Ct. R. 604(h)(2) (eff. April
15, 2024)), and which will serve “as the argument on appeal.” (Ill. S. Ct. R. 604(h)(7) (eff. April
15, 2024)). Like the initially amended rule, the newly amended rule allows but does not require a
memorandum on appeal, but it adds: “appellant’s arguments must contain sufficient detail to
enable meaningful appellate review, including the contentions of the appellant and the reasons
therefore [***] and citations of the record and any relevant authorities.” Id.
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¶9 We acknowledge that an appellate court should not be expected to formulate an argument
out of whole cloth for an appellant. See People v. Duckworth, 2024 IL App (5th) 230911, ¶ 6. But
in this case, defendant explained the grounds for the relief requested in the NOA, along with scant
citation to legal authority and reference to the record albeit without citation to the record
(understandably, given that the record had not been prepared at the time the NOA was filed). The
record is brief and the issues are narrow, and these omissions do not impede our review or require
us to act as advocates. See Inman, 2023 IL App (4th) 230864, ¶¶ 14-17.
¶ 10 Turning to the merits, we apply a two-part standard of review to a trial court’s decision to
detain a defendant. We apply the manifest-weight-of-the-evidence standard to the trial court’s
factual determinations, including whether the proof is evident or the presumption great that a
defendant has committed a qualifying offense, whether a defendant poses a threat, and whether
any conditions would mitigate that threat. People v. Trottier, 2023 IL App (2d) 230317, ¶ 13. A
finding is contrary to the manifest weight of the evidence only if a conclusion opposite that to the
trial court’s is clearly apparent. In re Jose A., 2018 IL App (2d) 180170, ¶ 17. The ultimate decision
of whether a defendant should be detained is reviewed for an abuse of discretion. Trottier, 2023
IL App (2d) 230317, ¶ 13. An abuse of discretion occurs only if no reasonable person could agree
with the trial court. People v. Williams, 2022 IL App (2d) 200455, ¶ 5.
¶ 11 The Code instructs that, in determining whether a specific threat could be mitigated through
the imposition of conditions of pretrial release, the trial court is to consider (1) the nature and
circumstances of the offense charged, (2) the weight of the evidence against the defendant, (3) the
history and characteristics of the defendant, (4) the nature and seriousness of the real and present
threat to the safety of any person or the community that would be posed by the defendant’s release,
and (5) the nature and seriousness of the risk of obstructing or attempting to obstruct the criminal
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2024 IL App (2d) 240128-U
justice process. 725 ILCS 5/110-5(a)(1)-(5) (West 2022). The history and characteristics of the
defendant include his or her “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, *** criminal history, and record concerning appearance at court
proceedings,” as well as “whether, at the time of the current offense or arrest, [he or she] was on
probation, parole, or on other release pending trial, sentencing, appeal, or completion of sentence
for any offense under federal law, or the law of this or any other state.” 725 ILCS 5/110-5(a)(3)(A)-
(B) (West 2022).
¶ 12 The question of whether there were other measures besides incarceration that could have
mitigated the risk posed by the defendant’s release depends in part on the nature of that risk, so we
begin by analyzing that risk based on the evidence submitted by the State. People v. Jones, 2024
IL App (2d) 230534-U, ¶ 20. The trial court found that the police executed a search warrant at
defendant’s residence and found defendant sitting or lying on the couch with a loaded 9mm
handgun within arm’s reach. The background picture of defendant’s cell phone enshrined a photo
of defendant holding an identical weapon. Multiple witnesses indicated the defendant was the
owner of the gun. A second firearm was recovered from the residence and a witness said that was
defendant’s gun as well. The trial court found that defendant had three felony convictions, resulting
in three prison terms before his twenty-second birthday. The court described the charged offenses
as offenses involving weapons with two loaded handguns that placed society as a whole at risk.
The court also noted that defendant has a history of alcohol abuse as evidenced by his aggravated
DUI conviction. Further, defendant had a 6 of a possible 14 on the Revised Virginia Pretrial Risk
Assessment. This means that defendant was “in the middle risk to reoffend category,” according
to the trial court. The Pretrial Release Report to the court stated that defendant is unemployed; he
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is not enrolled in school; he has no income; he currently uses THC; he has at least two failure to
appear warrants or bond forfeitures; and in addition to the felonies, he has a conviction for
obstructing justice. Considering these facts, the trial court concluded that defendant’s criminal
history, including three prior prison sentences, and his possession and access to loaded weapons
made him a threat to the community, and that no conditions could mitigate the risk posed by
defendant’s release.
¶ 13 The record does not make clear exactly when the defendant was released from prison for
his latest felony conviction, but because he was sentenced for that on October 27, 2022, by no
reasonable standard was it a long time. And yet, this defendant, who has a history of substance
abuse as evidenced by his felony DUI conviction, has been accused of a weapons offense allegedly
committed on February 2, 2024. Given this evidence, we hold that the state met its burden on
dangerousness and on conditions. See People v. Bueno, 2024 IL App (2d) 240053, ¶17 (not
unreasonable for trial court to conclude defendant was unlikely to obey any conditions short of
detention where defendant on MSR at time of new offense), citing People v. Lee, 2024 IL App
(1st) 232137, ¶ 33 (detention affirmed where defendant on parole from a gun case failed to comply
with the conditions placed upon him, “demonstrated history of refusing to abide by conditions of
release”) and People v. Davis, 2023 IL App (1st) 231856, ¶¶ 31-32 (the defendant’s history,
including a prior conviction of escape, demonstrated an unwillingness to follow rules or the court
orders, and release with conditions would be futile). This trial court made an individualized
determination based upon its weighing the relevant factors. And we cannot find that the trial court’s
conclusion that detention was necessary to mitigate the risk posed by defendant’s release was
against the manifest weight of the evidence, nor was the decision to detain an abuse of discretion.
¶ 14 IV. CONCLUSION
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2024 IL App (2d) 240128-U
¶ 15 In light of the foregoing, we affirm the order of the circuit court of De Kalb County.
¶ 16 Affirmed.
¶ 17 PRESIDING JUSTICE McLAREN, specially concurring:
¶ 18 I believe the case of People v. Mancilla, 2024 IL App (2d) 230505, is insightful. Mancilla
determined that Rule 3.1 of the Rules of Professional Conduct applied to counsel:
“ ‘A lawyer shall not bring or defend a proceeding, or assert or controvert an issue
therein, unless there is a basis in law and fact for doing so that is not frivolous, which
includes a good-faith argument for an extension, modification or reversal of existing law.
A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that
could result in incarceration, may nevertheless so defend the proceeding as to require that
every element of the case be established.’ Ill. R. Prof’l Conduct (2010) R. 3.1 (eff. Jan. 1,
2010).
Since appeals under the Code are criminal in nature, we cannot consider whether
frivolousness or sanctions apply under Illinois Supreme Court Rule 375 (eff. Feb. 1, 1994),
a rule applicable in civil appeals. However, as part of defense counsel’s ethical obligations
under Rule 3.1, it is incumbent upon counsel to inform this court as to whether the
defendant’s claims are meritorious and, if not, to withdraw any frivolous claims or even
the entire appeal under the Code. Ill. R. Prof’l Conduct (2010) R. 3.1 (eff. Jan. 1, 2010).”
Mancilla, 2024 IL App (2d) 230505, ¶ 31.
¶ 19 I submit counsel should have filed a memorandum or moved to withdraw.
¶ 20 The amended rules are now in effect and it remains to be seen if the defendant will receive
adequate representation. My concern is that the burden should not be placed on the court to fulfill
the duties of counsel and to make the argument for defendant. We become the defendant’s advocate
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2024 IL App (2d) 240128-U
if we look through the record for reasons other than affirmance. I specially concur because I believe
there is sufficient evidence of record, as related by the majority disposition, that allows me to be
confident to declare a forfeiture for failing to cite to the record and placing the burden of advocacy
on this court.
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