Opinion
4-23-0962
12-19-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERIBERTO A. LOPEZ, 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 Boone County Nos. 23CF81 23CF178 23MT215 Honorable C. Robert Tobin III, Judge Presiding.
JUSTICE LANNERD delivered the judgment of the court. Justices Harris and Zenoff concurred in the judgment.
ORDER
LANNERD, JUSTICE
¶ 1 Held: The appellate court vacated the trial court's order revoking defendant's pretrial release and remanded with directions to consider (1) defendant's pending petition to consider pretrial release in Boone County case No. 23-CF-178, (2) the State's verified petition for detention, and (3) any other pending pleadings or petitions filed by the parties related to the issue of defendant's pretrial release in any of the three consolidated cases.
¶ 2 Defendant, Heriberto A. Lopez, appeals from the trial court's judgment revoking his pretrial release in Boone County case No. 23-CF-81, in which he is charged with disorderly conduct (720 ILCS 5/26-1(a)(4) (West 2022)). In the same judgment, the court further ordered defendant detained on separate charges for unlawful possession of marijuana by a passenger (Boone County case No. 23-MT-215) (625 ILCS 5/11-502.15(c) (West 2022)) and reckless discharge of a firearm (Boone County case No. 23-CF-178) (720 ILCS 5/24-1.5 (West 2022)). Defendant filed separate notices of appeal in each of the three cases, and on its own motion, this court consolidated them for review.
¶ 3 We vacate the trial court's order revoking defendant's pretrial release. We hold the court erred when it considered the State's petition to revoke defendant's pretrial release in the disorderly conduct case because defendant's bond had already been revoked and he was being detained without bail. We remand with directions that the court consider (1) defendant's pending petition to consider pretrial release filed in the reckless discharge of a firearm case, (2) the State's verified petition for detention, and (3) any other pending pleadings or petitions filed by the parties related to the issue of defendant's pretrial release in Boone County case Nos. 23-CF-81, 23-MT-215, and 23-CF-178.
¶ 4 I. BACKGROUND
¶ 5 In March 2023, defendant was charged in Boone County case No. 23-CF-81 with disorderly conduct (id. § 26-1(a)(4)) (disorderly conduct case). Specifically, the complaint alleged on March 26, 2023, defendant called the police and told them that his car had been stolen when he had no reasonable grounds to believe a theft had occurred. A warrant was issued for his arrest on March 29, 2023. That evening, at 7:49 p.m., defendant was issued a citation for unlawful possession of cannabis by a passenger (625 ILCS 5/11-502.15(c) (West 2022)) in Boone County case No. 23-MT-215 (marijuana case). Officers executed defendant's arrest warrant in the disorderly conduct case shortly thereafter, around 10 p.m. Defendant posted a $5,000 bond the next day. On April 5, 2023, a grand jury returned a bill of indictment in defendant's disorderly conduct case.
¶ 6 On July 3, 2023, while out on bond in the disorderly conduct case, defendant was arrested for reckless discharge of a firearm (720 ILCS 5/24-1.5 (West 2022)) and possession of a firearm without a firearm owners identification card (430 ILCS 65/2(a)(1) (West 2022)) in Boone County case No. 23-CF-178 (reckless discharge of a firearm case). The probable cause affidavit stated Officers Reese and Hernandez responded to a call for subjects with a gun. They found defendant at the scene and detained him. A witness reported to officers that defendant was observed firing a gun into the air. On July 5, 2023, the trial court set defendant's bond in the reckless discharge of a firearm case at $100,000, with additional conditions. On July 17, 2023, the court revoked defendant's bond in the disorderly conduct case and ordered the amount previously posted in said case be refunded to the payor. The docket entry sheets indicated on the next day, "Bond of $423.00 refunded on 07/18/2023 to GOMEZ, MANUEL." On August 11, 2023, the court allowed defendant's motion to reduce bond in the reckless discharge of a firearm case to $75,000. This bond modification did not include the disorderly conduct case. Defendant was unable to pay the reduced bond and remained detained on both the disorderly conduct and reckless discharge of a firearm cases.
¶ 7 On September 20, 2023, defense counsel filed a motion to consider pretrial release in his reckless discharge of a firearm case-not in the disorderly conduct case-citing amendments to article 110 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/110-1 et seq. (West 2022)), which abolished the institution of cash bail in Illinois and provided a new framework for pretrial release determinations. The trial court issued an order for continued detention and set the matter for a hearing on September 25, 2023.
¶ 8 On September 25, 2023, the State filed petitions to (1) revoke pretrial release in defendant's disorderly conduct case, citing section 110-6(b) of the Code (id. § 110-6(b) (West 2022)) and (2) detain defendant in the reckless discharge of a firearm case (id. § 110-6.1(a)(6)(C)).
¶ 9 The trial court agreed to hear the petition to revoke pretrial release first, commenting, "As far as the petition to revoke, I can tell you I have made a ruling in regards to this, but it's not binding because that was a different attorney making different arguments." To clarify the State's position, the court stated, "I think the State is alleging that because [defendant] was out on release at the time that he was alleged to have *** committed 23-CF-178, that his- he can be detained-in essence, have his release revoked." In response, defense counsel stated, "I think that's correct."
¶ 10 Prior to arguments, the parties discussed the issue of the State's burden of proof with respect to its petition. After a brief pause, the trial court stated, "[T]he State does keep the burden of proof by proving by clear and convincing evidence that no condition or combination of conditions of release would reasonably ensure the appearance of the defendant or prevent the defendant from being charged with a subsequent felony or a Class A misdemeanor."
¶ 11 The State asserted that while defendant was out on bond in the disorderly conduct case, he committed a new felony offense and should be detained. The State claimed no conditions of release could prevent him from committing another offense based on his conduct in the reckless discharge of a firearm case. The trial court found no conditions could have prevented defendant from committing the new offense, and there was nothing the court could now impose that would ensure defendant's compliance with the law and attendance in court. The court granted the State's petition to revoke defendant's pretrial release in the disorderly conduct case and ordered him to remain in pretrial detention in the reckless discharge of a firearm case as well. However, the court stated it declined to hold a hearing on the State's petition to detain in the reckless discharge of a firearm case "because [the petition to revoke] resolves the other issue, the petition to detain." The court then entered a written order in all three cases revoking defendant's pretrial release, checking a box next to the following statement:
"The defendant has been charged with a felony or Class A misdemeanor that is alleged to have occurred during the defendant's pretrial release, and the State [has] proven by clear and convincing evidence that no condition or combination of conditions of release will reasonably ensure the appearance of the defendant for later hearings or prevent the defendant from being charged with a subsequent felony or Class A misdemeanor."
¶ 12 Defendant's counsel filed identical notices of appeal in all three cases. In the notices, defendant stated he appealed from the trial court's order revoking his pretrial release and requested this court vacate that order. Defendant asserted the State failed to meet its burden of proving by clear and convincing evidence that no condition or combination of conditions of release would reasonably ensure defendant's appearance at future hearings or prevent him from being charged with a subsequent felony or Class A misdemeanor.
¶ 13 This appeal followed.
¶ 14 II. ANALYSIS
¶ 15 A. Defendant's Contentions on Appeal
¶ 16 Defendant has filed memoranda in support of his appeals in case Nos. 4-23-0963 (reckless discharge of a firearm) and 4-23-0964 (disorderly conduct) under Illinois Supreme Court Rule 604(h) (eff. Oct. 19, 2023). In case No. 4-23-0962 (marijuana citation), defendant has elected to stand on the notice of appeal in lieu of filing a memorandum.
¶ 17 On appeal in the disorderly conduct case, defendant argues in his memorandum that this court should (1) vacate the trial court's order to detain defendant based on the State's petition to revoke pretrial release because he was already held with no bail on that case and there was therefore nothing to revoke and (2) remand for a hearing under section 110-5(e) of the Code (725 ILCS 5/110-5(e) (West 2022)). Defendant further argues trial counsel was ineffective for failing to request that the State's petition to revoke be stricken on mootness grounds.
¶ 18 On appeal in the reckless discharge of a firearm case, defendant argues in his memorandum that the trial court erred when it ordered him detained because "the Pretrial Fairness Act only contemplates a pretrial release hearing for defendants who remain in custody after having been ordered released on the condition of depositing security." According to defendant, the court only conducted a hearing on the State's petition to revoke in the disorderly conduct case and not on his motion to reconsider pretrial release filed September 20, 2023, or the State's responsive petition to detain. Defendant further argues defense counsel was ineffective for "failing to object to the trial court's erroneous order," which ordered him detained on this case without a hearing.
¶ 19 B. Revocation of Pretrial Release
¶ 20 We first consider defendant's argument that the trial court erred when it considered the State's petition to revoke pretrial release in the disorderly conduct case under section 110-6 of the Code (id. § 110-6) because defendant was being held with no bail and there was nothing to be revoked. The State responds defendant forfeited this issue by failing to object in the trial court, or alternatively, he waived the argument when defense counsel agreed with the court that the State could seek revocation of defendant's pretrial release in the disorderly conduct case based on his alleged commission of reckless discharge of a firearm.
¶ 21 We agree with the State that defendant has forfeited this issue by failing to (1) object to the trial court's consideration of the State's petition during the hearing or (2) include the issue as a ground for relief in his notice of appeal, as required by Illinois Supreme Court Rule 604(h) (eff. Sept. 18, 2023) ("The Notice of Appeal shall describe the relief requested and the grounds for the relief requested."). However, "forfeiture is a limitation on the parties, not the court, and we may exercise our discretion to review an otherwise forfeited issue." People v. Curry, 2018 IL App (1st) 152616, ¶ 36. We may overlook a party's forfeiture of an issue" 'when necessary to obtain a just result.'" People v. Raney, 2014 IL App (4th) 130551, ¶ 33. Due to the unusual circumstances presented in this case and in the interest of obtaining a just result, we elect to address this issue despite defendant's forfeiture.
¶ 22 As an initial matter, we note the State filed the petition to revoke defendant's pretrial release in the disorderly conduct case purportedly under section 110-6(b) of the Code (725 ILCS 5/110-6(b) (West 2022)). That section states as follows:
"If a defendant previously has been granted pretrial release under this Section for a Class B or Class C misdemeanor offense, *** and if the defendant is subsequently charged with a felony that is alleged to have occurred during the defendant's pretrial release ***, such pretrial release may not be revoked, but the court may impose sanctions under subsection (c)." (Emphasis added.) Id.
This subsection is not applicable to defendant because his disorderly conduct charge is classified as a Class 4 felony, which the State acknowledged in its petition. See 720 ILCS 5/26-1(a)(4), (b) (West 2022). Furthermore, this section by its terms precludes revocation of pretrial release.
¶ 23 However, based on the trial court's statement regarding the State's burden and its subsequent order revoking pretrial release, the parties apparently operated under the understanding the State sought revocation under section 110-6(a) of the Code (725 ILCS 5/110-6(a)). That section states:
"When a defendant has previously been granted pretrial release under this Section for a felony or Class A misdemeanor, that pretrial release may be revoked only if the defendant is charged with a felony or Class A misdemeanor that is alleged to have occurred during the defendant's pretrial release after a hearing on the court's own motion or upon the filing of a verified petition by the State." Id.
¶ 24 Here, the trial court erroneously considered the State's petition to revoke pretrial release. Although defendant had been previously granted pretrial release for a felony for purposes of the statute, at the time of the hearing, defendant was not on pretrial release. In fact, his pretrial release was revoked when his bond was revoked on July 17, 2023. While the State contends that "[n]o additional documents in the record were filed in relation to this entry," the docket entry indicates bond was refunded to Manuel Gomez the very next day, and a receipt memorializing the same appears in the record for the disorderly conduct case. The bond revocation occurred a week after defendant was arrested and detained for reckless discharge of a firearm and two months prior to the State's filing of its petition to revoke pretrial release. Furthermore, the court's $100,000 bond order in the reckless discharge of a firearm case was also entered prior to revocation of defendant's bond in the disorderly conduct case. There is no indication defendant's bond in the disorderly conduct case was ever reinstated. Instead, in the disorderly conduct case, defendant was being detained with no bail. Because defendant was no longer on pretrial release in the disorderly conduct case, there was nothing to revoke. Accordingly, section 110-6(a) of the Code (id.) was not applicable to the specific facts of the disorderly conduct case.
¶ 25 We acknowledge the trial court's obligation under section 110-5(f-5) of the Code to determine at each of defendant's subsequent appearances "that the current conditions imposed are necessary to reasonably ensure the appearance of the defendant as required, the safety of any other person, and the compliance of the defendant with all the conditions of pretrial release." Id. § 110-5(f-5). However, even accepting the court's unexplained statement that its previous decision revoking defendant's bond in the disorderly conduct case was "not binding" based on that obligation, a plain and logical reading of section 110-6(a) of the Code indicates that a pretrial release order must be in effect for such an order to be revoked. See id. § 110-6(a).
¶ 26 Accordingly, we vacate the trial court's judgment revoking defendant's pretrial release. We hold the court erred when it considered the State's petition to revoke defendant's pretrial release in the disorderly conduct case because defendant's bond had already been revoked and he was being detained with no bail.
¶ 27 Additionally, because the detention order also addressed the reckless discharge of a firearm and the marijuana case without a hearing, we must vacate the trial court's order in all three cases. We remand with directions that the court consider (1) defendant's pending petition to consider pretrial release in the reckless discharge of a firearm case, (2) the State's verified petition for detention, and (3) any other pending pleadings or petitions filed by the parties related to the issue of defendant's pretrial release in Boone County case Nos. 23-CF-81, 23-MT-215, and 23-CF-178. We express no opinion on the merits of either defendant's motion to consider pretrial release or the State's previously filed verified petition to detain defendant in the reckless discharge of a firearm case. Because we find this issue dispositive, we need not consider defendant's remaining arguments on appeal.
¶ 28 Finally, we acknowledge that as a matter of convenience, the parties and the trial court frequently include multiple cases in the caption of the orders. Nonetheless, it is important that the record clearly identify the cases on which a defendant is detained. By way of example, in the instant case, it appears defendant was also detained on the marijuana case, but said case was not discussed during the hearing or included in the State's petition to revoke. Even if an order provides for multiple cases in the caption, providing specifically in the order the cases in which the defendant is being detained would assist this court in our review.
¶ 29 III. CONCLUSION
¶ 30 For the reasons stated, we vacate the trial court's order revoking defendant's pretrial release entered in Boone County case Nos. 23-CF-81, 23-MT-215, and 23-CF-178 and remand with directions.
¶ 31 Vacated and remanded with directions.