Opinion
1-23-2027B
01-25-2024
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LESLIE BORDEN, 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 Cook County. No. 23 CR 0198201 Honorable Alfredo Maldonado, Judge Presiding.
JUSTICE McBRIDE delivered the judgment of the court. Presiding Justice Howse and Justice Ellis concurred in the judgment.
ORDER
MCBRIDE JUSTICE
¶ 1 Held: Finding no error in the trial court's determination that "no condition or combination of conditions [could] mitigate" the safety threat posed by defendant.
¶ 2 Defendant, Leslie Borden, appeals the trial court's granting of the State's verified petition for pretrial detention pursuant to section 110-6.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/110-6.1 (West 2022)).
¶ 3 Although the actual charging instrument does not appear in the record on appeal, the record prepared by the clerk of the circuit court pursuant to Illinois Supreme Court Rule 604(h)(2)(i) indicates that defendant was charged by indictment with various counts of attempted aggravated criminal sexual assault, aggravated criminal sexual abuse, and aggravated kidnapping causing bodily harm.
¶ 4 On October 11, 2023, the State filed a verified petition for pretrial detention hearing. The State asserted that defendant was charged with detainable offenses, which would be shown by clear and convincing evidence, including attempted aggravated criminal sexual assault, aggravated criminal sexual abuse and aggravated kidnapping. The State further asserted that defendant posed "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." In support, the State set out the following factual proffer:
"As complaining witness, A.R., was walking home, Defendant followed her while attempting to conceal himself. As A.R. approached her apartment building, Defendant struck A.R. in the head, and dragged A.R. into a parking area where Defendant got on top of A.R., lifted her dress, and touched A.R.'s buttocks and vagina with his hands. Defendant struck A.R., who cried out for help. Defendant fled on foot. A.R. positively identified Defendant in a photo array."
¶ 5 Finally, the State asserted that no condition or combination of conditions set forth in 725 ILCS 5/110-10(b) could mitigate that risk.
¶ 6 The court held a hearing on the State's motion that same day. The State's attorney began:
"defendant is facing numerous charges, including *** charges of attempt aggravated criminal sexual assault and aggravated criminal sexual abuse, as well as an aggravated kidnapping causing bodily harm. It's the State's position that the defendant does pose a real and present threat to the safety
of any person or persons or the community based on specific articulable facts of the case.
In this case the complaining witness, A.R., was walking home. The defendant followed her, which is shown on video, while attempting to conceal himself. As A.R. approached her apartment building and began to put in the code to her front door, the defendant approached from behind, struck her in the head and dragged her into a concealed parking area where the defendant got on top of A.R., lifted her dress and touched her buttocks and vagina with his hands. Defendant then struck A.R. who was crying out for help as a car approached. The defendant fled on foot. He was subsequently located using video surveillance. A.R. positively identified the defendant in a photo array and he was later picked up on a warrant.
¶ 7 The State then informed the court that defendant's background included one prior felony conviction for possession of a stolen motor vehicle, for which he received two years' probation. Defendant also had "[o]ne misdemeanor, a 2018 battery" for which he was sentenced to "180 days [in the] Cook County Department of Corrections." Additionally, defendant's background included "four prior failures to appear." The State argued that under the circumstances, there was "no condition or combination of conditions that can mitigate the risk that the defendant possess [sic], and we ask that you detain the defendant."
¶ 8 The defense argued that defendant was not a "danger or threat," because the allegations contained in the indictment arose from an incident that occurred in 2021, but defendant "was not picked up on this matter until earlier this year, 2023." The defense stated that defendant had not made "police contact" during those two years, and he was "not alleged to have committed any crimes during those two years."
¶ 9 The defense further argued that defendant
"is 31 years old currently. Prior to being placed in custody, he was working full time at a warehouse power stocking. He was doing that for six months. He has lived in Chicago for the entirety of his life. He is the father of three children, 17, 8 and 2. He is a high school graduate. Then after finishing high school, he did attend Lincoln Tech to do automotive, to study automotive tech. He does have a place in Cook County where he could do electronic monitoring, Judge."
¶ 10 The defense requested that defendant "be released, possibly with the condition of electronic monitoring."
¶ 11 In reply, the State pointed to the "serious facts in this case" and asked that defendant be denied release.
¶ 12 In ruling, the court explained that defendant was presumed innocent of the charges, but that "we are not at trial. We are considering release, first and foremost. *** The standard is less than beyond a reasonable doubt." The court explained that the charges were "all detainable offenses." The court found that the allegations against defendant "set out a present danger to the community, specifically the complaining witness." The court further noted defendant's criminal history, which included "four failures to appear ***[and] this Court does not find that there is any kind of pretrial measures that would prevent possible danger." The court found defendant "subject to detention based upon a risk."
¶ 13 During the rest of the hearing, the parties discussed the existence of still photographs which were taken from CTA surveillance video and were used to identify the defendant. The photographs were viewed by the parties in open court. The parties, however, were unsure whether the surveillance video existed, or whether the stills were made from a live stream, and the court continued the case by agreement for status of obtaining the surveillance video.
¶ 14 The court entered a written order that same day, finding that the State had shown "by clear and convincing evidence that" the "proof is evident or the presumption great that the defendant has committed an eligible offense listed in 725 ILCS 5/110-6.1(a)(1)-(7)," 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," namely an "alleged attack near CTA." The court further found that no condition or combination of conditions could mitigate the threat based on the specific articulable facts of the case, specifically noting defendant's "criminal history and failures to appear."
¶ 15 Defendant filed a timely notice of appeal from the trial court's order, seeking "reversal of [the] order denying pretrial release." Utilizing the form approved for Rule 604(h) appeals by defendants, defendant's claim of error consisted of three checked boxes.
¶ 16 First, defendant checked the box labeled: "[t]he 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." In the blanks below, defendant elaborated that the "allegations in this case arise from 2021. [Defendant] was not arrested until 2023. There are no allegations of criminal activity or even police contact by [defendant] during those 2 years. Release of [defendant] would not increase the risk of harm to any member of the public."
¶ 17 Second, defendant checked the box indicating that the "court erred in its determination that no condition or combination of conditions would reasonably ensure the appearance of defendant for later hearings or prevent the defendant from being charged with a subsequent felony or Class A misdemeanor." In the space below, defendant expanded that "[a]llowing [defendant]'s release on electronic monitoring wou[l]d ensure that he not have regular contact with the general public and ensure that he appear in court by allowing the sheriff's office to monitor his location at all times."
¶ 18 Finally, defendant checked the box indicating that he was "denied an opportunity for a fair hearing prior to the entry of the order denying or revoking pretrial release." On the blanks below, defendant wrote, "Please see the attached supporting document labelled 'Grounds for Relief.'" No such document appears in the record, and, in this appeal, the assistant public defender assigned to the case "confirmed that this was written in error, and that the grounds for relief are included in the [notice of appeal] itself."
¶ 19 Defendant did not check the box contesting that he was charged with an offense "qualifying for denial or revocations of pretrial release," nor did he contend that the State "failed to meet its burden of proving by clear and convincing evidence that the proof is evident or the presumption great that defendant committed the offense(s) charged." Defendant also did not indicate that 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."
¶ 20 The appeal is brought 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). See Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023) (amending various provisions of the Act); Rowe v. Raoul, 2023 IL 129248, ¶ 52 (lifting stay and setting effective date of Act as September 18, 2023). This court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 604(h) (eff. Sept. 18, 2023).
¶ 21 The Act amended the Code by abolishing traditional monetary bail in favor of pretrial release on personal recognizance or with conditions of release. 725 ILCS 5/110-1.5, 110-2(a) (West 2022). For qualifying offenses, upon filing a verified petition requesting denial of pretrial release, the State has the burden to prove by clear and convincing evidence (1) that the proof is evident or the presumption great that the defendant has committed a qualifying offense (725 ILCS 5/110-6.1(e)(1) (West 2022)), (2) that the defendant's pretrial release poses a real and present threat to the safety of any person or persons or the community (725 ILCS 5/110-6.1(a)(1)-(7), (e)(2) (West 2022)) or a likelihood of willful flight to avoid prosecution (725 ILCS 5/110-6.1(a)(8), (e)(3) (West 2022)), and (3) that no condition or combination of conditions can mitigate the real and present threat to the safety of any person or the community or prevent the defendant's willful flight from prosecution (725 ILCS 5/110-6.1(e)(3) (West 2022)).
¶ 22 Defendant's primary contention on appeal is that the trial court erred in denying him pretrial release Defendant does not contest that the evidence supports that he committed a qualifying offense, and he does not contend that the State failed in its burden of proving that he poses a real and present threat to the safety of any person or the community.
¶ 23 Instead, as set forth in his notice of appeal, defendant contends that the State failed to sufficiently prove "that no condition or combination of conditions can mitigate" that threat, that the court "erred in its determination that no condition or combination of conditions would reasonably ensure the appearance of defendant for later hearings or prevent the defendant from being charged with a subsequent felony or Class A misdemeanor," and that he was denied a "fair hearing," prior to the entry of the order denying pretrial release.
¶ 24 Illinois Supreme Court Rule 604(h), provides that appeals may be taken from orders granting or denying pretrial release, and the "Notice of Appeal shall describe the relief requested and the grounds for the relief requested." The Rule further provides that the "appellant may file, but is not required to file, a memorandum not exceeding 4500 words, within 21 days of filing of the Rule 328 supporting record." Ill. Sup. Ct. R. 604(h)(2). The appellee's responsive memorandum is due 21 days later, and this court's decision is due to be filed 14 days thereafter.
¶ 25 This court recognizes that the offices of the State's Attorney, Public Defender, and the State Appellate Defender, have been burdened with a large number of these expedited appeals- estimates have suggested that there have been over 1500 such appeals filed since the effective date of the Act-which have added to their already substantial caseloads. Presumably in part as a result of the increased burden, the public defender's office has, in some appeals, like the one here, filed Notices "in lieu of Rule 604(h) Memorandum." In such notices, the public defender's office has indicated that it intends to stand on the notice of appeal itself, without further analysis or argument presented in a Rule 604(h) memorandum.
¶ 26 A significant concern, however, is that the notices of appeal used in these cases are generally form orders with checkboxes providing conclusory claims of error. While there are blanks for further explanation underneath the checkboxes, the appellant does not always utilize that space. And, even when the space is utilized, the form order provides little room for argument or authority to support the claims of error.
¶ 27 While we are sympathetic to the additional burdens that these appeals have imposed on the parties, we use this opportunity to reiterate that an appellant must present sufficient grounds on which this court can review any claims of error. Although Illinois Supreme Court Rule 341 does not govern these proceedings, it is still necessary for an appellant to present" 'coherent argument and analysis supported by proper record citations and legal authorities.'" See People v. Inman, 2023 IL App (4th) 230864 (quoting Ill. Sup. Ct. R. 341).
¶ 28 As the court in Inman explained,
"Even the new Rule 604(h) requires the notice of appeal to include a description of the relief to be requested' and the grounds for the relief requested.' Ill. S.Ct. R. 604(h)(2) (eff. Sept. 18, 2023)). This would appear to mean some form of argument is required, along with justification for claiming entitlement to relief- like references to the record, the evidence presented, or, if possible, legal authority.
[E]ven under the unique circumstances created by the Act, we cannot be expected to formulate an argument for defendant out of whole cloth, and we decline to do so. There is a well-established principle: 'A reviewing court is entitled to have the issues on appeal clearly defined with pertinent authority cited and a cohesive legal argument presented. The appellate court is not a depository in which the appellant may dump the burden of argument and research.' (Internal quotation marks omitted.) Macias, 2015 IL App (1st) 132039, ¶ 88. By this we do not mean to say a memorandum as described in Rule 604(h)(2) is required or expected in
every case. However, it is reasonable to conclude the Illinois Supreme Court, by approving the notice of appeal form, expects appellants to at least include some rudimentary facts, argument, or support for the conclusory claim they have identified by checking a box. Even without the application of Rule 341, we doubt Rule 604(h) now requires the appellate court to act as an advocate or seek error on the appellant's behalf-something heretofore expressly forbidden." Id., ¶¶ 12-13.
¶ 29 Even more recently, in People v. Duckworth, 2024 IL App (5th) 230911, the Fifth District appellate court granted the State's motion to dismiss the defendant's appeal where the defendant's notice of appeal consisted of only checked boxes, and, on appeal, the defendant filed a notice in lieu of a Rule 604(h) memorandum. Id., at ¶ 2. The appellate court agreed with the defendant's argument that the notice of appeal was sufficient to invoke the appellate court's jurisdiction, but found the defendant's "contention that the defendant is not required to provide any argument supporting his issues on appeal is not well taken." Id., at ¶ 5.
¶ 30 The court explained,
"it is neither this court's burden nor obligation to provide arguments in support of issues raised by an appellant. *** To presume, as contended by [defendant], that this court would present arguments on behalf of the appellant and then issue a ruling on those same arguments is both incredulous and contrary to well-established Illinois Supreme Court rules governing appeals." Id., at ¶ 7.
¶ 31 The court noted that the defendant made only conclusory claims of error, while "refer[ring] to no evidence in the record upon which to evaluate his claims," and "provid[ing] [no] legal argument or authority in support of his claims." Id., at ¶ 8. Moreover, by filing a notice in lieu of Rule 604(h) memorandum, the defendant's "counsel on appeal, declined [the] opportunity to provide the missing argument, citation of the record, or authority that would support any argument that could have been made for the issues raised on appeal." Id. Accordingly, the court found "nothing on which to base an analysis of the defendant's allegations on appeal, and the defendant forfeited the issues raised on appeal," and granted the State's motion and dismiss. Id.
¶ 32 In this case, defendant did little more than check the boxes making conclusory claims of error. As explained above, defendant's third claim of error-that he was denied a "fair hearing"- referenced a separate document entitled "Grounds for Relief," but counsel has since confirmed that no such document exists. Defendant provides no explanation as to how the hearing provided to him was inadequate, and in the absence of any explanation or argument on this point, this court is unable to review it. See Inman, 2023 IL App (4th) 230864, ¶ 13.
¶ 33 The argument on the other two claims is exceedingly sparse. Defendant contends that the State failed in its burden of showing "that no condition or combination of conditions can mitigate the real and present threat to the safety" of any person or the community, because he did not have any police contact during the two years between the incident and his arrest. And defendant contends that the court erred in its determination "that no condition or combination of conditions would reasonably ensure the appearance of defendant for later hearings or prevent the defendant from being charged with a subsequent felony or Class A misdemeanor," because "electronic monitoring" would prevent him from having "regular contact with the general public and ensure that he appear in court." Defendant does not provide a single citation to the record or to legal authority for either claim. Although we find that this case could be dismissed based on the inadequacy of the arguments presented to this court in defendant's notice of appeal, we choose not to do so.
¶ 34 Turning to the merits of defendant's remaining claims, we must first address the standard of review. Due to the recent enactment of the statute, courts have been grappling with many important issues regarding the Act and its application, including the standard of review, and a variety of differing opinions have understandably arisen.
¶ 35 Some appellate courts have concluded that all aspects of detention hearings under the Act are subject to abuse of discretion review (see People v. Whitmore, 2023 IL App (1st) 231807(B), ¶¶ 18-19; People v. Inman, 2023 IL App (4th) 230864, ¶ 11), while others have exclusively utilized the manifest weight standard (see People v. Stock, 2023 IL App (1st) 231753, ¶ 12). Other courts have adopted a mixed approach, under which the trial court's determinations that the State has proved by "clear and convincing evidence" that the defendant committed a qualifying offense, and that he is dangerous or a flight risk, is reviewed for the manifest weight of the evidence, while the ultimate decision regarding detention, continued detention, or the imposition of conditions of release are subject to abuse of discretion review. See People v. Saucedo, 2024 IL App (1st) 232020, ¶¶ 31-36; People v. Hodge, 2024 IL App (3d) 230543, ¶ 8; People v. Vingara, 2023 IL App (5th) 230698, ¶ 10; People v. Trottier, 2023 IL App (2d) 230317, ¶ 13; People v. Reed, 2023 IL App (1st) 231834, ¶ 24, 31 (whether the defendant "committed the charged offense" and whether "he poses a danger to the community," are "factual findings" that are reviewed for the "manifest weight of the evidence. However, "an abuse of discretion standard is most appropriate" to review the determination of whether there "were no conditions of release that could mitigate the safety risk"). Still others have concluded that appeals under the Act should be reviewed de novo. See People v. Battle, 2023 IL App (1st) 231838, ¶ 18; Saucedo, 2024 IL App (1st) 232020 (Ellis, J., specially concurring); People v. Herrera, 2023 IL App (1st) 231801, ¶¶ 22-24 (declining to decide what standard of review applies, but suggesting that even under de novo review, the case could be resolved based on legal error).
¶ 36 Although the appropriate standard of review is an important question which has yet to be resolved, we need not do so here. Based on the issues presented in this appeal, our decision would be the same under any standard.
¶ 37 In this appeal, defendant does not challenge either of the first two propositions-that there is clear and convincing evidence that he committed a qualifying offense and that he is a threat to a person, persons, or the community. Instead, both of defendant's claims of error go to the third proposition. Specifically, defendant contends that the State failed to show "that no condition or combination of conditions" could mitigate the threat he presents to a person or the community, because he did not have any police contact during the two years between the incident and his arrest, and that the court "erred in its determination that no condition or combination of conditions would reasonably ensure the appearance of defendant for later hearings or prevent the defendant from being charged with a subsequent felony or Class A misdemeanor" because allowing his release on electronic monitoring would "ensure that he not have regular contact with the general public and ensure that he appear in court by allowing the sheriff's office to monitor his location at all times."
¶ 38 Under the Act, if the State proves a valid threat to the safety of any person or the community, the defendant is likely to flee to avoid prosecution, or the defendant failed to abide by previously issued conditions of pretrial release, the trial court must determine which pretrial release conditions, "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." 725 ILCS 5/110-5(a) (West 2022). In reaching its determination, the trial court must 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 justice process. 725 ILCS 5/110-5(a) (West 2022).
¶ 39 Additionally, where a defendant is charged certain enumerated offenses, including aggravated kidnaping, as charged here, the court may consider additional factors. 725 ILCS 5/110-5(a)(6) (West 2022). Those factors include whether the person has a history of violating the orders of any court or governmental entity; whether the person has been, or is, potentially a threat to any other person; "the severity of the alleged incident that is the basis of the alleged offense"; and "any other factors 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 that behavior." No singular factor is dispositive. See 725 ILCS 5/110-5(a) (West 2022).
¶ 40 As noted above, defendant has not challenged the trial court's findings that there is clear and convincing evidence that he committed the vicious offenses charged, and that he is threat to the victim and the community. And defendant presents no authority to support his contention that a lack of police contact following a crime suggests that he does not pose a danger to a person or the community. To the contrary, the lack of police contact since the crime could also indicate his consciousness of guilt and attempts to evade apprehension.
¶ 41 Moreover, defendant's claim that the court should have imposed electronic monitoring, amounts to no more than a conclusory allegation that "electronic monitoring should have been enough." Defendant, however, provides no real reasoning, or citation to the record or authority in support. This court will not "provide the missing argument, citation of the record, or authority that would support any argument that could have been made for the issues raised on appeal." Duckworth, 2024 IL App (5th) 230911, ¶ 8.
¶ 42 Here, the record shows that defendant is charged with a heinous offense, at least a portion of which is captured on video and/or in still images. Defendant is alleged to have followed the victim while attempting to conceal himself, before striking her and dragging her into a concealed area. It is further alleged that defendant got on top of the victim, touched her buttocks and vagina, and struck her again, before fleeing on foot. The record also shows that defendant has a criminal history including a felony conviction for possession of a stolen motor vehicle, a misdemeanor battery conviction," and "four prior failures to appear." Applying the statutory factors listed above, under any standard of review, we find no error in the trial court's determination "that no condition or combination of conditions" could mitigate the threat. Accordingly, we affirm the trial court's granting of the State's verified petition for pretrial detention.
¶ 43 For the foregoing reasons, we affirm the decision of the circuit court of Cook County.
¶ 44 Affirmed.