Opinion
2-24-0102
05-17-2024
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTURO MARTINEZ-ORTIZ, Defendant-Appellant.
This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of McHenry County. No. 23-CF-1217 Honorable Michael J. Chmiel, Judge, Presiding.
JUSTICE KENNEDY delivered the judgment of the court. Presiding Justice McLaren concurred in the judgment. Justice Birkett dissented.
ORDER
KENNEDY, JUSTICE
¶ 1 Held: The trial court erred in finding that no condition or set of conditions could mitigate the real and present threat that defendant posed to the safety of the victim or others. Therefore, we reverse and remand.
¶ 2 Defendant, Arturo Martinez-Ortiz, appeals from the denial of his pretrial release. For the following reasons, we reverse and remand.
With respect to the deadline of disposition, we retroactively apply the newly amended Illinois Supreme Court Rule 604(h)(8) (eff. April 15, 2024), which allows a disposition to be filed 100 days from the date the appellant filed the notice of appeal. The amendment to Rule 604(h)(8) is procedural in that it allots the time for appellate disposition. "It is well settled that statutory amendments may be applied retroactively where they are purely procedural and do not impair a vested right" (People v. Easton, 2017 IL App (2d) 141180, ¶ 14 (citing Allegis Realty Investors v. Novak, 223 Ill.2d 318, 331 (2006))), and the retroactive application of purely procedural amendments extends to amendments to supreme court rules (id. (citing People ex rel. Madigan v. Petco Petroleum Corp., 363 Ill.App.3d 613, 620-21 (2006))).
¶ 3 I. BACKGROUND
¶ 4 On January 25, 2024, defendant was indicted on two counts of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2022) (Class X felony)), one count of indecent solicitation of a child (id. § 11-6(a) (Class 1 felony)), and one count of aggravated criminal sexual abuse (id. § 11-1.60(c)(1)(i) (Class 2 felony)). All counts related to defendant's alleged sexual conduct toward E.M., who was defendant's granddaughter and was under the age of 13 at the time of the alleged offenses. Defendant was living in California when he was served by interstate warrant for the offenses alleged to have occurred in McHenry County.
¶ 5 The State filed a verified petition to deny defendant's pretrial release, arguing that defendant posed a real and present threat to the safety of any person, persons, or the community. In the petition, the State requested that, if the court denied the petition, the court should order the following as conditions of defendant's release: no contact with E.M., no contact with any minors, GPS monitoring, a sex offender evaluation, and an order to not leave the state.
¶ 6 The trial court heard the petition on February 2, 2024, and the State proferred as follows. In September 2022, the McHenry County Sheriff's Department received a report that E.M., who was born in 2011, had been sexually abused by defendant, her grandfather, while she lived in California and again when she lived in McHenry County. At a Child Advocacy Center interview, E.M. disclosed that she did not feel safe around defendant and was concerned about her grandfather coming over for Christmas and for her father's birthday. E.M. stated that defendant touched her inappropriately and made her touch him inappropriately, and she was also worried for her minor sister.
¶ 7 E.M. stated that the inappropriate activity occurred more than one time, and she specifically recalled an instance from December 2021 in Illinois. During the December 2021 incident, E.M. was with her sister watching television in the basement of their home when defendant came downstairs. He turned off the lights and sat by E.M. on the couch in front of the television, using her blanket. E.M.'s sister was also on the couch. Defendant told E.M. to spread her legs, and either defendant or E.M. pulled E.M.'s pants and underwear down. Defendant began to touch E.M., including on her breasts. E.M. stated that defendant touched her with his fingers but indicated that he also wanted to touch her with his tongue.
¶ 8 Defendant then removed his pants and underwear and took E.M.'s hand and told her to touch him. He made E.M. touch his penis, having her go "up and down" with it. She described defendant's penis as "rippling and gross" when she moved it up and down. Afterward, her hands were sticky, and she had to wash them. She stated that she felt it necessary to use six pumps of soap to try to clean her hands.
¶ 9 E.M. also described an incident with defendant that occurred in San Diego where he told her to spread her legs and touched her inappropriately. The State did not specify when this incident occurred. E.M. stated that defendant touched her "down there" with his fingers. E.M. continued that defendant told her not to tell her parents about the touching.
¶ 10 As a part of the San Diego police department's investigation, E.M.'s mother called defendant in August 2023, and the call was recorded. In the phone call, defendant admitted there had been inappropriate contact between him and E.M. in December 2021, although he claimed that E.M. had initiated the physical contact. He further confirmed that the touching occurred while on a sofa watching television with E.M.'s sister in the room.
¶ 11 Following its proffer, the State argued that defendant was in a "transient living situation," in that he did not have a permanent residence in California anymore and was considering residing in Cook County. The State disputed defense counsel's assertion that defendant was a lifelong California resident, stating that he was born in Mexico. If defendant were to be released, the State was unsure in what state or town defendant would reside. It argued that no condition could ensure that defendant never finds himself around children.
¶ 12 Defense counsel responded that defendant was 58 years old with no prior criminal history.Counsel noted that the allegations in this case stemmed from 2021, and no new allegations had emerged in the last three years, including any allegations related to E.M.'s sister or another minor, undercutting the State's claim of a real and present threat. Counsel also disagreed with the State's characterization of the August 2023 recorded conversation. Counsel asserted that defendant denied any wrongdoing, saying that he believed that E.M. accidentally touched his private parts during a game but that he denied the allegations made against him.
Counsel acknowledged that defendant had a January 2024 offense of "fugitive from justice" in his California record but explained that this offense was likely from the interstate warrant served on him in this case, as the California offense and warrant were from the same day.
¶ 13 Defense counsel continued that E.M. was in the custody of her parents and that conditions could mitigate any threat defendant may pose. Counsel asserted that defendant planned to stay with friends in Cook County and that GPS monitoring would assure no contact with E.M. Further, counsel stated that the court could enter an order that defendant not leave the state and that pretrial monitoring and a sex offender evaluation were appropriate.
¶ 14 The State replied that, with respect to whether defendant abused other children, "the sad nature of these types of offenses is that these allegations come out slowly and over time." The State said it "cannot tell the Court that I'm aware of other allegations," but noted that the current allegations did not come to light immediately. The State continued that it was "not asking the Court to speculate as to possible other victims, but I don't think anybody here can assert completely that there aren't any other victims. We simply don't know." The State asserted that if defendant was willing to do what he did to one minor child, it was a reasonable inference that he might do it to other children.
¶ 15 The trial court denied pretrial release, stating that it "absolutely agree[d] with the State." The court noted the detailed proffer, where E.M. recounted two incidents of "horrific allegations" that no child should ever have to experience. The court also found "[e]xtremely concerning" the fact that the acts were perpetrated against a child from "somebody that was known and put in a place of confidence," and it emphasized defendant's alleged statement to E.M. "about not saying anything about any of this." The court continued that, to the State's point, "maybe there are other situations. God forbid."
¶ 16 The trial court found that the State had proved by clear and convincing evidence that no set of conditions could mitigate the threat defendant posed, stating that "I cannot fathom a set of conditions that could be put in place to mitigate the risk of harm to an individual, that being the victim *** or for that matter, others in the community." The court noted that defendant declined to be interviewed by court services pretrial officers, rendering the pretrial risk assessment "virtually, respectfully, meaningless." The assessment was not included in the record on appeal.
¶ 17 In the trial court's written order, it explained its three necessary findings-(1) that the proof was evident that defendant committed the alleged detainable offense, (2) that defendant's release would pose a real and present threat to the safety of any person or the community, and (3) that no condition or combination of conditions could mitigate that threat-by stating that E.M., who was 10 years old at the time of her disclosure, provided clear details of the offense that would not otherwise be within the knowledge of a minor victim without direct experience, and the defendant told her not to disclose the offense. Defendant timely appealed.
¶ 18 II. ANALYSIS
¶ 19 In defendant's notice of appeal, he checked two boxes as grounds for relief: (1) the State failed to prove that no set of conditions, including electronic home monitoring, could mitigate defendant's real and present threat; and (2) the trial court erred in its determination that no set of conditions would reasonably ensure defendant's appearance at later hearings or prevent him being charged with a subsequent felony or Class A misdemeanor. We consider only the first ground because the second ground applies only to motions to revoke pretrial release under section 110-6(a) (725 ILCS 5/110-6(a) (West 2022)), not to, as relevant here, a denial of pretrial release under section 110-6.1.
¶ 20 The Office of the State Appellate Defender filed a memorandum in support of defendant's appeal. In the memorandum, defendant argues that the trial court erred in finding that no conditions of release, particularly GPS monitoring and orders to have no contact with children and not leave Illinois, could mitigate the real and present threat defendant posed to E.M. or other children.
¶ 21 With respect to E.M., defendant argues that he no longer enjoys a trusted family relationship with his son, E.M.'s father. Defendant contends that the State's proffer establishes that E.M.'s parents were cooperating with the State, citing E.M.'s mother's agreement to have a phone call with defendant recorded as part of the San Diego police department's investigation. Defendant continues that the statute does not require that conditions eliminate the threat defendant poses to E.M. but instead conditions must mitigate, that is, reduce the threat. Defendant argues that even without any conditions of pretrial release, it is unlikely that E.M.'s parents would permit defendant access to E.M. again.
¶ 22 As to children other than E.M., defendant argues that the State offered nothing but speculation as to how this threat would manifest. It did not proffer that defendant "lurks in public bathrooms or kidnaps children from the street," but instead showed that defendant was able to allegedly abuse E.M. because he enjoyed a place of confidence with her, something he now lacks. Defendant argues that no new allegations against him had arisen in the three years since the alleged offense. Further, the State did not proffer that defendant enjoyed a similar relationship with other children. Defendant concludes that the State failed to meet its burden to prove that no condition could mitigate the threat defendant posed to other children when it merely suggested that the threat defendant posed was "possible," as opposed to real and present, and when it asserted only that other children's safety could not be completely ensured, as opposed to mitigated.
¶ 23 The State responds that the trial court properly relied on appropriate statutory bases, including the nature of the offense and the seriousness of the risk of harm defendant posed (see 725 ILCS 5/110-5(a)(1), (4) (West 2022)), to support its finding that no condition would mitigate the threat defendant posed. The State continues that, with respect to defendant's argument that he does not pose a real and present threat, defendant did not challenge that finding in his notice of appeal and therefore it cannot be raised in the appellate memorandum. The State concludes that defendant's argument regarding conditions reduces "to a simple difference of opinion" over the evidence and improperly asks us to reweigh the evidence.
¶ 24 For the following reasons, we agree with defendant that the trial court erred in finding that no condition or set of conditions can mitigate the real and present threat that defendant poses.
¶ 25 Pretrial release is governed by article 110 of the Code. 725 ILCS 5/110-1 et seq. (West 2022). Under the Code, a defendant's pretrial release may be denied only for certain charged offenses. Id. §§ 110-2(a), 110-6.1. Here, there is no dispute that defendant was charged with a detainable offense. See id. § 110-6.1(a)(1.5) (listing predatory criminal sexual assault of a child as a detainable offense).
¶ 26 To deny a defendant pretrial release, the trial court must find that the State proved the following by clear and convincing evidence: (1) the proof is evident or the presumption great that defendant committed a detainable offense (id. § 110-6.1(e)(1)); (2) defendant's pretrial release poses a real and present threat to the safety of any person or persons or the community (id. § 110-6.1(e)(2)); and (3) no condition or combination of conditions can mitigate the real and present threat to the safety of any person or the community or prevent the defendant's willful flight from prosecution (id. § 110-6.1(e)(3)). We review whether the trial court's findings were against the manifest weight of the evidence. People v. Trottier, 2023 IL App (2d) 230317, ¶ 13; People v. Vingara, 2023 IL App (5th) 230698, ¶ 10. A finding is against the manifest weight of the evidence when it is unreasonable. People v. Sims, 2022 IL App (2d) 200391, ¶ 72. We review the trial court's ultimate decision regarding pretrial release for an abuse of discretion. Trottier, 2023 IL App (2d) 230317, ¶ 13.
¶ 27 First, we note that, contrary to the State's position, defendant is not challenging the trial court's finding that defendant posed a real and present threat to the safety of any person or persons or the community. Rather, defendant's position is simply that the trial court erred in finding that no condition or set of conditions can mitigate the threat defendant poses to E.M. or other children. A finding of dangerousness alone does not automatically warrant pretrial detention. See 725 ILCS 5/110-6.1(e) (West 2022) (listing the necessary findings for pretrial detention); People v. Atterberry, 2023 IL App (4th) 231028, ¶ 18 (detention decisions require more than a detainable offense and a threat to public safety). Moreover, in determining what conditions of pretrial release, if any, will reasonably ensure the safety of a person, persons, or the community, it is necessary to examine, inter alia, the nature and seriousness of the real and present threat that defendant would pose if released. 725 ILCS 5/110-5(a)(4) (West 2022); see also People v. Hurtado, 2024 IL App (2d) 230517-U, ¶ 13 (explaining that the specific nature of the threat posed by a defendant is relevant to whether that threat can be mitigated by conditions of pretrial release). Accordingly, defendant's arguments are properly before us.
We note an inconsistency in the operative language of certain statutory provisions involving the efficacy of pretrial conditions. In section 110-6.1(e)(3) (725 ILCS 5/110-6.1(e)(3) (West 2022)), the State must prove 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," (emphasis added), whereas section 110-5(a) (id. § 110-5(a)) provides that the court shall consider several listed matters "[i]n determining which conditions of pretrial release, if any, will reasonably ensure *** the safety of any other person or the community" (emphasis added). It is unclear whether the legislature intended different meanings between the word "mitigate" in assessing a defendant's ineligibility for pretrial release and the phrase "reasonably ensure" in deciding on conditions of a defendant's pretrial release, but we apply the mitigation language in reaching our holding because that is the language explicit to assessing a defendant's ineligibility for pretrial release under section 110-6.1, which is the issue on appeal.
¶ 28 As to E.M., the trial court's finding, that no condition or combination of conditions could mitigate defendant's real and present threat, was against the manifest weight of the evidence. According to the evidence presented, defendant had access to E.M. because she was his granddaughter; he allegedly assaulted her on two occasions, once when her family visited him and again when he visited them. As the trial court noted, defendant enjoyed a position of trust and confidence with E.M., a position that he lost after E.M.'s allegations and E.M.'s mother cooperated with the San Diego police in their investigation of defendant, where he admitted to her that inappropriate touching had occurred. Given this context, the trial court erred in finding that no conditions, such as the suggested conditions of GPS monitoring and a no contact order, can mitigate the threat defendant posed to E.M., especially in light of defendant losing his position of trust and confidence with E.M.'s parents and his access to her.
¶ 29 As to children other than E.M., the threat to be mitigated was a general threat that defendant would possibly assault other children. The State acknowledged that no other allegations against defendant had been made by any other child, and defendant, at age 58, did not have a prior criminal history, let alone a history of sexual misconduct (see id. § 110-5(a)(3)). Consequently, there was no evidence of defendant's failure to comply with court-imposed conditions. Moreover, there was no proffer from the State that defendant was a real and present threat to another family member, aside from E.M.'s concern for her sister, whose safety would be reasonably ensured by the same pretrial release conditions as imposed to protect E.M. Nor was there a proffer that defendant enjoyed access to children outside his family, such as would provide an opportunity to reoffend in a similar manner as charged here, and there were no new allegations against defendant in the three years since the alleged offense in this case.
¶ 30 Although the trial court properly characterized the nature of defendant's charged offense as "horrific" (see id. § 110-5(a)(1)), and although the State proffered strong evidence that defendant committed the charged offense (see id. § 110-5(a)(2)), the State bore the burden of proving by clear and convincing evidence that no condition or combination of conditions could mitigate the real and present threat that defendant would assault or abuse other children, "based on the specific articulable facts of the case" (id. § 110-6.1(e)(3); see also id. § 110-5(a)(4) (directing courts to consider the nature and seriousness of the real and present threat, based on the specific articulable facts of the case, posed by the defendant's release)). Here, defendant's threat to other children was not based on the specific, articulable facts of this case, but instead on the possibility that defendant, who allegedly sexually assaulted a minor family member by abusing his position of trust and confidence with his family, might sexually abuse another minor regardless of occupying a position of trust or confidence through a familial relation or otherwise.
¶ 31 We certainly cannot say that there is no risk that this defendant, or any other defendant for that matter, will commit an offense on pretrial release or otherwise manifest a threat beyond those based on the specific, articulable facts of the case. As the trial court commented with respect to other potential victims, "maybe there are other situations. God forbid." However, section 110-6.1 explicitly requires courts to presume that all defendants are eligible for pretrial release (id. § 110-6.1(e)), and pretrial detention can be ordered only when the State proves that no condition or set of conditions can mitigate-not absolutely eliminate-the real and present threat a defendant poses (id. § 110-6.1(e)(3)). To satisfy its burden on this element, the State must present something more than the bare allegations that defendant committed the charged detainable offense. See People v. Stock, 2023 IL App (1st) 231753, ¶ 18 (explaining that, "logically, the bare allegations that defendant has committed a violent offense are not sufficient to establish" that no conditions can mitigate the defendant's posed threat); cf. People v. Parker, 2024 IL App (1st) 232275-U, ¶¶ 4648 (finding sufficient evidence of the conditions element where, unlike in Stock, the record showed that the defendant had a criminal history demonstrating a willingness to use force against government actors and property and an unwillingness to relinquish a firearm). Sweeping generalizations, such as "defendants don't follow orders" (People v. Jones, 2024 IL App (2d) 230534-U, ¶ 23) or that conditions of release are loosely monitored (Atterberry, 2023 IL App (4th) 231028, ¶ 18), do not satisfy the statutory requirements that the State prove that no set of conditions can mitigate a defendant's real and present threat, based on the specific, articulable facts of the case (725 ILCS 5/110-6.1(e)(3) (West 2022)), and that a detention decision be individualized (id. § 110-6.1(f)(7)).
¶ 32 With respect to victims other than E.M., the State failed to proffer more than conjecture that defendant could reoffend in some manner, making it difficult to assess whether any condition or combination of conditions could mitigate defendant's broadly conceived threat, much less prove by clear and convincing evidence that the threat could not be mitigated by a broad set of conditions of release. The State did not proffer, for example, that defendant had previously engaged in grooming behavior or that he had been accused of sexual misconduct with others. It did not proffer that defendant had any prior criminal history or subsequent allegations. Nor did the State proffer that defendant had access to other children, through a position of trust and confidence or otherwise. Instead, the State relied solely on the nature of the allegations that defendant sexually assaulted E.M. See Stock, 2023 IL App (1st) 231753, ¶ 18 (reasoning that, if the base allegations of a violent offense were sufficient to establish the conditions element, the legislature would have deemed those accused of violent offenses ineligible for release); People v. McGee, 2024 IL App (2d) 240057-U, ¶ 19 (holding that the trial court's finding on the conditions element in a predatory criminal sexual assault case was not supported by the evidence where the State relied on the nature of the charges and the trial court did not explain why the defendant's proffered conditions would not suffice); Jones, 2024 IL App (2d) 230534-U, ¶¶ 23, 27-32 (reversing the detention order because the trial court based the order solely on the nature of the charged aggravated battery; the State failed to present evidence that the defendant, who had no criminal record, would not follow court orders or was likely to reoffend); cf. People v. Andino-Acosta, 2024 IL App (2d) 230463, ¶¶ 25-26 (holding that the evidence supported that no condition could mitigate the defendant's risk where the offense of aggravated domestic battery involved strangulation in front of the defendant's children, the defendant appeared intoxicated, he refused to comply with police and resisted arrest, and the alleged offense occurred while defendant had DUI charges pending).
¶ 33 In short, the evidence of record does not support that no set of conditions-such as GPS monitoring restricting defendant from being near E.M.'s home and school, a no contact order with E.M. or other minors, a requirement that defendant provide a home address in Illinois, an order to not leave the State, and a sex offender evaluation, along with any other condition the court deems appropriate-can sufficiently mitigate the generalized risk that defendant will reoffend with E.M. or other children. Accordingly, the trial court's finding was unreasonable, and we reverse and remand to set conditions of defendant's release.
¶ 34 III. CONCLUSION
¶ 35 For these reasons, the trial court erred in denying defendant's pretrial release, and we reverse the judgment of the McHenry County circuit court and remand to set conditions of his release.
¶ 36 Reversed and remanded.
¶ 37 JUSTICE BIRKETT, dissenting:
¶ 38 I disagree with my colleagues that the State failed to prove that no set of conditions, including electronic home monitoring, could mitigate defendant's real and present threat to E.M. or the community. The trial court's finding that no set of conditions could mitigate the risk of harm to E.M. or the community is not unreasonable. The trial court heard evidence by way of the State's proffer that E.M. was afraid for herself and for her little sister if defendant was to visit them over the Christmas holiday. E.M. disclosed that defendant told her "not to tell her parents about the touching and especially not to tell her mother." While defendant has no known criminal history, he sexually assaulted E.M. "more than once." E.M. gave graphic descriptions of the assaults that occurred both in McHenry County and in San Diego, California.
¶ 39 The trial court specifically found, "I cannot fathom a set of conditions that could be put in place to mitigate the risks of harm to an individual, that being the victim or the alleged victim as this person may be characterized or for that matter, others in the community." The majority limits the "risk of harm" to the potential for defendant to re-offend. ¶¶ 31-32. The majority fails to recognize the risk of psychological harm that is likely to happen to E.M. if she learns defendant has been released, even if he is on electronic monitoring. In this case, it is clear that E.M. is afraid that defendant will re-enter her life and her sister's life. The trial court specifically found that defendant directed E.M. "not to disclose the offense." "Abusers frequently attempt to ensure secrecy by intimidating children, so no details about the methods perpetrators used to elicit such secrecy emerge gradually in truthful accounts." On Trial, America's Courts and Their Treatment of Sexually Abused Children, Billie Wright Dziech and Judge Charles B. Schudson, Beacon Press, 1991. Defendant does not challenge the trial court's findings that, by clear and convincing evidence, the proof is evident or the presumption great that defendant committed the charged offenses.
¶ 40 In People v. Huddleston, 212 Ill.2d 107, 134 (2004), our supreme court discussed "[t]he vulnerability of children to sexual predation" and "the psychological damage that results to the developing psyches of these young victims." The court stated that "[c]ommentators have recognized that, aside from any physical injury a child may suffer in a sexual assault, children who are sexually assaulted are subject to chronic psychological problems that may be even more pernicious." Id. at 135. In this case, the evidence of psychological harm to E.M. is clearly evident. She did not disclose because she agreed to keep defendant's secret and when she did disclose, she did so out of fear that her abuser, her own grandfather, would have access to her and her sister. It has long been established that "psychological harm inflicted upon a child victim of a sex crime is a proper factor to consider in aggravation." People v. Bunning, 2018 IL App (5th) 150114 (2018). In People v. Fisher, 135 Ill.App.3d 502, 506 (1985), the appellate court rejected the defendant's argument that proof of medically diagnosed psychological harm was necessary. Here, as in Fisher, defendant's alleged acts have "created a strong probability of permanent psychological harm" and thus were properly considered. Id. "Psychological trauma to a victim can be considered as an aggravated factor even without direct evidence of trauma." People v. Muraida, 2021 IL App (4th) 180650-U, ¶ 60. Psychological harm to the victim is a relevant consideration during all stages of a prosecution.
¶ 41 In Rowe v. Raoul, 2023 IL 120248 (2023), our supreme court stated that "the pretrial release provisions secure, rather than contravene, the rights guaranteed by the clause (Ill Const. 1970, art. I, sec. 8.1 (Crime Victims' Rights) in that they require the court to consider the safety of victims at every stage at which the court determines whether and on what conditions a defendant should be released." Id. ¶ 40. The court noted that the "bail clause" and the "victims rights clause" are "equally important and work in concert." Id. ¶ 41. The "real and present threat exception" "acknowledges the State's interest in public safety." Id.
¶ 42 The Illinois Constitution, Art I sec. 8.1(8) provides that crime victims have "[t]he right to be reasonably protected from the accused throughout the criminal justice process." Section 8.1(9) provides "[t]he right to have the safety of the victim and the victim's family considered in denying or fixing the amount of bail, determining whether to release the defendant and setting conditions of release after arrest and conviction." As the trial court found, the details of the charged offenses, as well as the abuse that occurred in San Diego, are horrific. It is not unreasonable to infer that, upon learning that defendant has been released, psychological trauma to E.M. will increase. That risk of harm to E.M. cannot be mitigated by any condition or set of conditions. The trial court's denial of pretrial release is reviewed for an abuse of discretion. People v. Trottier, 2023 IL App (3d) 230317, ¶ 13. "An abuse of discretion occurs where the circuit court's decision is arbitrary, unreasonable, or fanciful or where no reasonable person would have taken the position adopted by the circuit court." People v. Heineman, 2023 IL 127854, ¶ 59. The trial court's ruling was not unreasonable, and other decisions involving defendants under similar situations align with the trial court's ruling. People v. Crutcher, 2024 IL App (5th) 231326-U (no conditions could mitigate threat to child victim or community where proof was evident that the defendant sexually abused the victim over a lengthy period of time, where the defendant lacked community ties, and lacked a criminal history); People v. Conner, 2024 IL App (2d) 240086-U (the defendant's pretrial detention was affirmed where the defendant had sexually abused his minor stepdaughters "for years," despite the fact that the defendant no longer lived with the victims and lacked a substantial criminal history); People v. Gooden, 2024 IL App (4th) 231523 (electronic home monitoring and no-contact orders would not mitigate threat posed by the defendant who was charged with indecent solicitation of a child and possession of methamphetamine).
¶ 43 The majority's suggestion that conditions of release, "such as GPS monitoring" and a "no contact order with E.M. or other minors *** can sufficiently mitigate risk that defendant will reoffend with E.M. or other children" ignores reality. Defendant has no ties to the community. Other than a vague reference to friends of his ex-wife in Chicago that might allow him to stay with them, there is no possible way to effectively supervise defendant's release into the community. We may affirm the trial court's order on any basis supported by the record if the trial court's judgment was correct. People v. Munz, 2021 IL App (2d) 180873, ¶ 27. In this case, the defendant told the trial court that he "possibly had the support of my ex-wife." He stated that he was "attempting to get an address here in Chicago by means of a friend of my ex-wife."
The record does not indicate whether defendant's ex-wife is the grandmother of E.M.
¶ 44 "Defendants placed on electronic home monitoring require a host site where they can live while on electronic home monitoring, typically with family or friends." People v. Gonzalez-Zuniga, 2024 IL App (2d) 230538-U, ¶ 14. In Gonzalez-Zuniga, we stated that "it is not the State's obligation to provide the court with a location where the defendant can reside pretrial." Id. ¶ 18. We held that "under these circumstances, no conditions or combination of conditions could mitigate the real and present threat to the safety of the victim." Id. We stated that, if circumstances change, the defendant could move to be heard. Id.
¶ 45 Our supreme court has repeatedly stated that the state of Illinois "has traditionally exhibited an 'acute interest' in the well-being of minors." Huddleston, 212 Ill.2d at 133 (citing People v. Wooters, 188 Ill.2d 500, 509 (1999)). Indeed, "the welfare and protection of minors has always been considered one of the State's most fundamental interests." Huddleston, 212 Ill.2d at 132.
¶ 46 For all of the foregoing reasons, I would find that the trial court did not err in granting the State's motion to deny pretrial release. Therefore, I respectfully dissent.