Opinion
5-23-0897
12-04-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MYSTRY D. SCOTT, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Monroe County. No. 23-CF-231 Honorable Christopher E. Hitzemann, Judge, presiding.
JUSTICE BARBERIS delivered the judgment of the court. Justices Cates and Moore concurred in the judgment.
ORDER
BARBERIS, JUSTICE
¶ 1 Held: We vacate the circuit court's detention order where the State filed an untimely petition to detain.
¶ 2 Defendant, Mystry D. Scott, appeals the Monroe County circuit court's September 29, 2023, order granting the State's petition to deny defendant's pretrial release pursuant to Public Act 101-652, § 10-255 (eff. Jan. 1, 2023), commonly known as the Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act (Act), which amended article 110 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/art. 110 (West 2022)). See Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023) (amending various provisions of the Code); Rowe v. Raoul, 2023 IL 129248, ¶ 52 (lifting stay and setting effective date as September 18, 2023). On appeal, defendant argues that the State lacked the power to petition for her to be detained and the court thus erred by ordering her detained. Alternatively, defendant argues that the State failed to prove, by clear and convincing evidence, that she was a real and present safety threat or that no conditions could mitigate any threat. Because defendant was arrested and detained prior to the date the Act went into effect, this appeal presents a narrow issue relevant to only those defendants who were arrested and detained prior to the effective date of the Act. For the following reasons, we vacate the court's detention order and remand the cause for further proceedings.
"The Act has also sometimes been referred to in the press as the Pretrial Fairness Act. Neither name is official, as neither appears in the Illinois Compiled Statutes or public act." Rowe v. Raoul, 2023 IL 129248, ¶ 4 n.1.
¶ 3 I. BACKGROUND
¶ 4 On September 12, 2023, the State charged defendant with one count of methamphetamine trafficking (5-15 grams) (720 ILCS 646/56(a) (West 2022)), a Class 1 felony and non-probationable offense, one count of possession of methamphetamine with intent to deliver (5-15 grams) (id. § 55(a)(1)), a Class 1 felony, and one count of possession of a controlled substance (psilocybin mushrooms) (720 ILCS 570/402(c) (West 2022)), a Class 4 felony. During a hearing on September 14, 2023, the circuit court set bond at $150,000, requiring a 10% deposit. Defendant remained in detention.
¶ 5 On September 18, 2023, the Act became effective. Also, on September 18, 2023, the circuit court entered an order appointing counsel to represent defendant. The court included the following notation in the order: "Motion to Reconsider pretrial release conditions to be filed."
¶ 6 On September 19, 2023, defendant filed a motion to reduce bail. Defendant alleged that she was not a flight risk and would appear at any scheduled court appearance. Defendant further alleged that the amount of bail was unreasonable, excessive, and punitive in nature. Defendant requested a hearing where she could "testify further concerning this matter," and that she be released on her own recognizance or, in the alternative, that the amount of bail be reduced.
¶ 7 On September 26, 2023, defendant filed a motion for reconsideration of pretrial release "pursuant to 735 [ sic ] ILCS 5/110-7.5." Defendant requested that the circuit court set the matter for hearing.
¶ 8 Also, on September 26, 2023, the State filed a verified petition to deny defendant pretrial release pursuant to section 110-6.1 of the Code (725 ILCS 5/110-6.1 (West 2022)). The State alleged that defendant was charged with a non-probationable drug offense, that no condition or combination of conditions could mitigate the real and present threat to the safety of any person or persons or the community, and that defendant posed a serious risk to not appear in court as required (id. § 110-6.1(e)(4)). The circuit court set the matter for a detention hearing on September 29, 2023.
¶ 9 On September 29, 2023, prior to the hearing, the State filed an amended verified petition to deny pretrial release. The State alleged that defendant was "charged with an offense under Section 110-6.1(a)(1), (1.5) or (3) through (7), and the defendant poses a real and present threat to the safety of any person or persons or the community."
¶ 10 Following the hearing on September 29, 2023, the circuit court entered a detention order. The court found, by clear and convincing evidence, that proof was evident or the presumption great that defendant "committed a detainable offense pursuant to 725 ILCS 5/110-6.1(a)," that defendant posed a real and present threat to the safety of any person or persons or to the community at large, and that no condition or combination of conditions could mitigate the real and present threat to the safety of any person or persons or the community. Pursuant to section 110-6.1(h) of the Code (id. § 110-6.1(h)), the court summarized its reasons for denying defendant pretrial release as follows:
"Evidence of controlled purchases [and] admission of bringing methamphetamine across state lines for delivery at a time when Defendant was on probation for poss. w/ intent to deliver methamphetamine. Conditions in the existing order of probation mirror those available here, including that Defendant not leave the state of IL, with admission here of travel out of state to procure methamphetamine."
¶ 11 On October 2, 2023, defendant filed a timely appeal. Ill. S.Ct. R. 604(h) (eff. Sept. 18, 2023). Defendant alleged that the State failed to meet its burden of proving by clear and convincing evidence that no condition or combination of conditions could 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. Defendant further alleged that the court erred in its determination that no condition or combination of conditions would be reasonable ensure the appearance of defendant for later hearings or prevent defendant from being charged with a subsequent felony or misdemeanor.
¶ 12 II. ANALYSIS
¶ 13 On appeal, defendant first argues that the circuit court erred when it ordered her detained because the State lacked the power to file a verified petition to detain pursuant to section 110-6.1 of the Code. Specifically, defendant asserts that the Act does not allow the State to file a verified petition to deny pretrial release for defendants who remain in custody after having been ordered released on the condition of depositing security.
¶ 14 As an initial matter, we note that defendant forfeited review of this issue by failing to object to the State's petition and by failing to raise this alleged error in her notice of appeal. Defendant seeks review under the second prong of the plain-error doctrine. Under the second prong, this court may consider a forfeited error when the error is so serious it deprives a defendant of a substantial right. People v. Herron, 215 Ill.2d 167, 170 (2005). "The first step in a plain-error analysis is to determine whether a clear and obvious error occurred." People v. Henderson, 2017 IL App (3d) 150550, ¶ 37. "The burden of persuasion falls on defendant." Id. ¶ 38. "We review de novo the ultimate question of whether a forfeited error is reviewable as plain error." Id.
¶ 15 With this in mind, we consider defendant's argument that the circuit court erred when it ordered her detained because the State lacked the power to file a verified petition to detain pursuant to section 110-6.1 of the Code. This court recently considered this issue in People v. Vingara, 2023 IL App (5th) 230698. This court, in applying a de novo standard of review, considered "the defendant's claim that the State had no authority to file its petition and thus the trial court had no basis upon which to enter the order denying pretrial release." Id. ¶ 14. In interpreting subsection (c)(1) of section 110-6.1 of the Code, this court concluded that "the State may file a petition to detain at the time of the defendant's first appearance before a judge; no prior notice to the defendant is required." Id. ¶ 16. This court also concluded that, "[alternatively, the State may file a petition to detain the defendant within 21 calendar days after the arrest and release of the defendant; however, reasonable notice is to be provided to the defendant under this circumstance." Id. This court noted that "[t]he exception to these timing requirements is set forth in section 110-6(i) (725 ILCS 5/110-6(i) (West 2022))." Id.
¶ 16 In applying these statutory provisions to the facts of Vingara, this court noted that "section 110-6 [was] not applicable to the defendant because he had not been released from detention following his arrest and he had not been charged with any new offenses." Id. ¶ 18. This court also noted that "the exception to the timing requirements set forth in section 110-6.1(c)(1) [was] also not applicable to the defendant." Id. Consequently, this court held that "the State's petition to detain the defendant pursuant to section 110-6.1 was untimely and that the trial court did not have the authority to detain the defendant pursuant to the untimely petition." Id.
¶ 17 Similarly, in the present case, the State's petition to detain defendant pursuant to section 110-6.1 was untimely where the State did not file a petition to detain at the time of defendant's first appearance or within 21 calendar days after defendant's arrest and release. As in Vingara, defendant here had not been released from detention following her arrest and she had not been charged with any new offenses. Accordingly, the exception to the timing requirements set forth in section 110-6.1(c)(1) did not apply to defendant. Thus, we reach the same conclusion to that reached in Vingara-that the State's petition to detain defendant pursuant to section 110-6.1 was untimely and that the circuit court did not have the authority to detain defendant pursuant to the untimely petition. We also conclude, as concluded in Vingara, that the court's error affected substantial rights of defendant under the second prong of the plain-error doctrine. Id. ¶ 23 (citing Ill. S.Ct. R. 615(a) (eff. Jan. 1, 1967); People v. Piatkowski, 225 Ill.2d 551, 564-65 (2007)).
¶ 18 This court noted, however, that defendants, such as defendant here, who have previously imposed pretrial conditions, including the deposit of monetary security, have two options available under the Code. Id. ¶ 22. Specifically, this court noted:
"Under sections 110-5(e) and 110-7.5(b), a defendant may file a motion seeking a hearing to determine the reasons for continued detention. If the trial court finds that the defendant's 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 trial court is required to 'reopen' the conditions of release hearing. 725 ILCS 5/110-5(e), 110-7.5(b) (West 2022). During the hearing, the court will be required to determine what available conditions exist that will reasonably ensure the appearance of the
defendant, the safety of any person or the community, and the likelihood of the defendant's compliance with all conditions of pretrial release. 725 ILCS 5/110-5(e) (West 2022). Thus, the court may consider the matters set forth in subsection 110-5(a) (725 ILCS 5/110-5(a) (West 2022)). Alternatively, a defendant may elect to remain in detention until such time as the previously set monetary security may be paid. Some defendants may choose this second option, which allows for the possibility of pretrial release if the previously set monetary security is posted, as opposed to requesting a hearing pursuant to the first option, after which they might be detained without any possibility of pretrial release. 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. People v. Horrell, 235 Ill.2d 235, 242 (2009)." Id.
¶ 19 In the present case, defendant filed a motion for reconsideration of pretrial release "pursuant to 735 [ sic ] ILCS 5/110-7.5" before the State filed its petition to detain pursuant to section 110-6.1. It appears that defendant attempted to request a hearing under sections 110-5(e) and 110-7.5(b). However, the circuit court did not address this motion. The court instead granted the State's petition to detain pursuant to section 110-6.1. Because the court lacked the authority to grant the State's petition to detain and the court's error affected substantial rights of defendant, we vacate the court's detention order, reinstate the original bond order, and remand the matter back to the circuit court. People v. Swan, 2023 IL App (5th) 230766, ¶ 25. On remand, defendant may elect to stand on the terms of her original pretrial conditions-an election that requires no action on her part-or she may pursue her motion for a hearing under section 110-5(e). Id. If defendant elects to pursue her motion, she shall be entitled to a timely hearing within 48 hours of her formal request pursuant to section 110-5(e). Id. Because our resolution of this issue is dispositive, we need not address defendant's remaining arguments on appeal.
¶ 20 III. CONCLUSION
¶ 21 For the reasons stated, we vacate the circuit court's order of September 29, 2023, and remand the matter back to the court for further proceedings.
¶ 22 Order vacated; cause remanded.