Opinion
4-23-0906 4-23-0907 4-23-0908 4-23-0909 4-23-0910
12-08-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SETH C. HAZZARD, 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 Fulton County Nos. 21CF45, 21CF186, 21CF313, 21CF325, 22CF237 Honorable Thomas B. Ewing, Judge Presiding.
JUSTICE CAVANAGH delivered the judgment of the court. Justices Harris and Zenoff concurred in the judgment.
ORDER
CAVANAGH JUSTICE
¶ 1 Held:
(1) In an appeal under Illinois Supreme Court Rule 604(h) (eff. Sept. 18, 2023), issues omitted in the notice of appeal are forfeited even if the issues are raised in a memorandum.
(2) By finding, on the basis of a bail bond report, a high risk of flight and by denying pretrial release on that basis, the circuit court did not abuse its discretion.
¶ 2 About a year before article 110 of the Code of Criminal Procedure of 1963 (725 ILCS 5/art. 110 (West 2022)) was amended by Public Act 101-652 (eff. Jan. 1, 2023), commonly known as the Pretrial Fairness Act, the circuit court of Fulton County revoked the pretrial release of defendant, Seth C. Hazzard. The reason for the revocation was that he had failed to attend a preliminary hearing.
¶ 3 After the statutory amendments went into effect, defense counsel filed a motion to reinstate the pretrial release. The circuit court denied the motion.
¶ 4 In five criminal cases pending against him, namely, Fulton County case Nos. 21-CF-45, 21-CF-186, 21-CF-313, 21-CF-325, and 22-CF-237, defendant appeals the denial of his motion for release. See Ill. S.Ct. R. 604(h)(1)(iii) (eff. Sept. 18, 2023). We have docketed these five appeals as case Nos. 4-23-0906, 4-23-0907, 4-23-0908, 4-23-0909, and 4-23-0910, respectively. On our own motion, we consolidated these five appeals for disposition.
¶ 5 In his memoranda, defendant argues that defense counsel rendered ineffective assistance by failing to object to the State's failure to file a petition for denial of pretrial release. See 725 ILCS 5/110-6.1(a) (West 2022). Because defendant does not raise this issue in his notice of appeal, this issue-this claim of ineffective assistance-is forfeited. His notice of appeal, however, challenges the sufficiency of the evidence. We find no abuse of discretion in the circuit court's decision to deny pretrial release on the ground of defendant's high probability of willful flight. Therefore, we affirm the circuit court's judgment in these five cases.
¶ 6 I. BACKGROUND
¶ 7 In four of the five cases, defendant was charged with separate offenses of unlawful failure to register as a sex offender (see 730 ILCS 150/10(a) (West 2020); 730 ILCS 150/10(a) (West 2022)). The dates of the alleged violations in these failure-to-register cases were March 1, 2021, July 15 to 26, 2021, October 11, 2021, and September 22, 2022. In the fifth case, he was charged with unlawful possession of a stolen vehicle (see 625 ILCS 5/4-103(a)(1) (West 2020)), an offense he allegedly committed on December 14, 2021.
¶ 8 In some or all of these cases, defendant deposited a security. Then, on December 29, 2021, the circuit court changed the bonds to personal recognizance bonds. Also, the court scheduled a preliminary hearing for January 5, 2022, and ordered defendant to come to the hearing. One of the stated conditions of pretrial release was that he appear each time as ordered by the court.
¶ 9 On January 5, 2022, defendant failed to appear at the preliminary hearing. Consequently, the circuit court issued a warrant for his arrest. The court further ordered the forfeiture of his deposits of security.
¶ 10 On September 10, 2023, defendant was arrested. He has remained in pretrial detention ever since.
¶ 11 On September 18, 2023, in the five cases, defense counsel filed a motion titled "Motion for Release Pursuant to 725 ILCS 5/110-7.5(b)(1)" (motion for release). See 725 ILCS 5/110-7.5(b)(1) (West 2022).
¶ 12 On September 27, 2023, the circuit court held a hearing on the motion for release. At the hearing, the prosecutor informed the court that defendant had multiple felony cases pending against him, he had failed to appear in 2021 on other charges, and a pretrial bond report from December 2021 had assessed defendant as an "11 out of 14 high risk for flight going all the way back to 2005." The prosecutor argued that defendant had proven the accuracy of the pretrial bond report.
¶ 13 Defendant then took the stand, and on direct examination by defense counsel, he assured the circuit court he would attend all future court hearings. Things were going to be different now, defendant explained, because he intended to reside with a friend and to abstain from drugs. Defendant promised to undergo any substance-abuse evaluations the court ordered. Also, he testified he had a prospect for employment.
¶ 14 On September 27, 2023, in a written order that followed the format of section 110-6.1(h) (id. § 110-6.1(h)), the circuit court denied the motion for release. Given "the specific facts of this case," the court concluded that "less restrictive conditions would not avoid a real and present threat to the safety of any person or persons or the community." Also, in the court's view, "the inherent nature of the charges" and defendant's "history of failures to appear" showed that defendant was "a flight risk" and that he was "unable to abide by court orders." Therefore, the court committed him to the custody of the sheriff for confinement in the county jail, pending trial. Defendant was to "be given a reasonable opportunity for private consultation with counsel[ ] and for communication with others of his or her choice by visitation, mail[,] and telephone." The court added that, at each subsequent hearing at which defendant appeared, the court would review the pretrial detention. The sheriff was to deliver defendant to these future hearings when so ordered by the court.
¶ 15 These appeals followed.
¶ 16 II. ANALYSIS
¶ 17 A. Forfeiture of the Claim of Ineffective Assistance and of the Objection That the State Filed No Petition
¶ 18 In his memoranda in these five appeals, defendant contends that by failing to obj ect to the lack of a petition by the State to deny pretrial release (see id. § 110-6.1(a)), defense counsel rendered ineffective assistance. So, the issues in defendant's memoranda are (1) the omission of a petition for denial of pretrial release and (2) ineffective assistance by reason of defense counsel's failure to object to the omission.
¶ 19 The trouble is, we do not see either of those issues in the notice of appeal. Recently, in People v. Martin, 2023 IL App (4th) 230826, ¶ 19, this court concluded, "[W]e must limit our review to the issues fairly raised by a liberal construction of defendant's notice of appeal." Construing defendant's notice of appeal liberally, as we must do, we do not see how it could be construed as raising ineffective assistance or the lack of a petition to deny pretrial release. Under Martin, then, those issues are forfeited.
¶ 20 B. The Sufficiency of the Evidence
¶ 21 In the notice of appeal, defendant claims:
"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." (Emphasis added.)
Pretrial release may be denied if
"(8) the person has a high likelihood of willful flight to avoid prosecution and is charged with:
***
(B) A felony offense other than a Class 4 offense." 725 ILCS 5/110-6.1(a)(8)(B) (West 2022).
Section 110-1(f) defines" '[w]illful flight'" as follows:
"(f) 'Willful flight' means intentional conduct with a purpose to thwart the judicial process to avoid prosecution. Isolated instances of nonappearance in court alone are not evidence of the risk of willful flight. Reoccurrence and patterns of intentional conduct to evade prosecution, along with any affirmative steps to communicate or remedy any such missed court date, may be considered as factors in assessing future intent to evade prosecution." Id. § 110-1(f).
¶ 22 Arguably, in the hearing on September 27, 2023, the prosecutor proved more than defendant's "[i]solated instances of nonappearance in court." Id. Without objection by the defense, the prosecutor cited a pretrial bond report from December 2021 that had assessed defendant as an "11 out of 14 high risk for flight going all the way back to 2005." We are unable to say it would be "arbitrary, fanciful[,] or unreasonable" (People v. Jones, 2023 IL App (4th) 230837, ¶ 27) to rely on this report as proof that defendant had "a high likelihood of willful flight to avoid prosecution." 725 ILCS 5/110-6.1(a)(8) (West 2022). Unlawful failure to register as a sex offender was a Class 3 felony (730 ILCS 150/10(a) (West 2022)) and, as such, was "[a] felony offense other than a Class 4 offense" (725 ILCS 5/110-6.1(a)(8)(B) (West 2022)). Because we find arguable support for the two elements in section 110-6.1(a)(8)(B), we conclude the circuit court did not abuse its discretion by denying pretrial release. See Jones, 2023 IL App (4th) 230837, ¶ 27.
¶ 23 III. CONCLUSION
¶ 24 For the foregoing reasons, we affirm the circuit court's judgment in these five cases.
¶ 25 Affirmed.