Opinion
1-23-2017B
01-09-2024
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEREMIAH McBEE, 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 DV 7531401 Honorable Michael Hogan Jr., Judge Presiding.
MIKVA JUSTICE delivered the judgment of the court. Presiding Justice Mitchell and Justice Navarro concurred in the judgment.
ORDER
MIKVA JUSTICE.
¶ 1 Held: It was not an abuse of discretion in this domestic battery case for the court to require electronic monitoring as a condition of defendant's pretrial release or to include the defendant's infant daughter as a protected party in its order of protection.
¶ 2 Defendant Jeremiah McBee, who stands charged with the domestic battery of his girlfriend, S.P., appeals from the circuit court's order imposing conditions on his pretrial release under article 110 of the Code of Criminal Procedure of 1963 (Code), as amended by Public Act 101-652, § 10255, and Public Act 102-1104, § 70 (eff. Jan. 1, 2023) (725 ILCS 5/110-6.1 (West 2022)), commonly known as the Pretrial Fairness Act. Mr. McBee argues that (1) the State failed to prove that electronic monitoring was the least restrictive means of ensuring S.P's safety and (2) the court's order of protection should not have included A.P., Mr. McBee's one-year-old daughter with S.P., as a protected party with whom he is to have no contact until after trial. For the reasons that follow, we affirm the circuit court's orders.
¶ 3 I. BACKGROUND
¶ 4 The State has charged Mr. McBee with domestic battery (720 ILCS 5/12-3.2 (West 2022), alleging that on or around October 18, 2023, he knowingly, intentionally, and without legal justification caused bodily harm to his girlfriend, S.P., by putting his hands around her neck and choking her.
¶ 5 On October 19, 2023, the State petitioned for Mr. McBee to be detained until trial, pursuant to section 110-6.1 of the Code (725 ILCS 5/110-6.1 (West 2022)). It alleged that Mr. McBee had had three prior domestic battery arrests in the past year-and-a-half, including one with the same complaining witness. The State argued that Mr. McBee 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" and that no condition or combination of conditions set forth in section 110-10(b) of the Code could mitigate that risk.
¶ 6 S.P. simultaneously petitioned for an order of protection pursuant to section 112A-11.5 of the Code (725 ILCS 5/112A-11.5 (West 2022)). According to the petition, on or about October 18, 2023, Mr. McBee and S.P. were at their shared residence when they "got into a verbal altercation that escalated with [Mr. McBee] grabbing [S.P.] about the neck and squeezing until it became difficult for [her] to breathe." The petition listed both S.P. and A.P., the parties' one-year-old daughter, as individuals in need of protection. It also alleged that there was a history of abuse and that S.P. was fearful of further abuse. S.P. asked the court to grant her exclusive possession of the parties' residence and for Mr. McBee to have "[n]o contact by any means" with either her or A.P. ¶ 7 Mr. McBee was present and represented by counsel at the October 19, 2023, hearing on both the State's petition for pretrial detention and S.P.'s petition for a protective order. The State noted that domestic battery is a Class A misdemeanor punishable by up to 364 days in prison. In support of that charge, the State proffered that when Mr. McBee choked S.P., she escaped only by scratching his neck and grabbing his penis. She then fled from the residence and called the police, who returned with her and placed Mr. McBee under arrest.
¶ 8 The State represented to the court that Mr. McBee had a prior felony conviction for robbery in 2015 and had received a sentence of probation for that offense. He had three prior domestic battery arrests within the last year-and-a-half, including one from June of this year that involved S.P. and two from the year before involving another complaining witness. Mr. McBee had one prior bond forfeiture.
¶ 9 Defense counsel proffered that none of the prior domestic battery arrests had resulted in convictions, that S.P. had told law enforcement that the June arrest "was a misunderstanding," that Mr. McBee adamantly denied choking her, that officers at the scene reported no visible injuries to S.B. in their incident report, and that Mr. McBee in fact had visible injuries himself that had been inflicted on him by S.B. Defense counsel noted that Mr. McBee had graduated from high school, was an active church member, and had another place to stay until trial. He had just started a new job and wanted to keep that job so he could support his daughter.
¶ 10 The pretrial officer assigned to this case reported to the court that Mr. McBee had New Criminal Activity and Failure to Appear scores of one, a PSA Score coinciding with Supervision Level 1, and a DVSI (domestic violence screening instrument) score of two, indicating that he was a medium to low risk.
¶ 11 S.P. was present and swore to the accuracy of her petition for a protective order.
¶ 12 The court then entered its rulings. Based on the State's proffer, S.P.'s verified petition, and the filing of the criminal complaint, the court granted the order of protection. S.P. was granted exclusive possession of the parties' residence, and Mr. McBee was prohibited from having any contact with either S.P. or A.P. The court noted that it had "weighed the equities, the potential hardships to [Mr. McBee] versus the potential danger to [S.P.]," had taken into consideration Mr. McBee's willingness to leave the residence and reside elsewhere until trial, and had concluded that the order of protection was warranted.
¶ 13 The court denied the State's petition for pretrial detention, citing "the mitigation and the alternate facts brought out in the mitigation, as well as the low scores from Pretrial Services." In addition to imposing the statutorily mandated conditions of pretrial release, the court ruled that Mr. McBee must refrain from contacting S.P. for the duration of the case and refrain from going to her home, work, or school, though he would be allowed to enter the parties' residence one time with law enforcement to retrieve personal property. "[B]ased on what [it] heard in the proffer, as well as those [prior] arrests," the court also ruled that electronic monitoring would be ordered over defense counsel's objection.
¶ 14 The court entered orders consistent with these findings and advised Mr. McBee that he had the right to appeal the conditions of his pretrial release.
¶ 15 II. JURISDICTION
¶ 16 The circuit court entered its order setting the conditions for Mr. McBee's pretrial release on October 19, 2023, and Mr. McBee filed a timely notice of appeal from that order on November 1, 2023. We have jurisdiction to review orders imposing conditions of pretrial release under section 110-5(k) of the Code (725 ILCS 5/110-5(k) (West 2022)) and Illinois Supreme Court Rule 604(h)(1)(i) (eff Oct. 19, 2023). Although Mr. McBee used a form notice of appeal intended for use in Rule 604(h) appeals, we look to the substance rather than the form of a notice (People v. Smith, 228 Ill.2d 95, 104-5 (2008)), and it is clear from the substance of the notice here that Mr. McBee also challenges the circuit court's order of protection. Orders of protection, which are injunctive in nature, are immediately appealable under Rule 307(a)(1) (eff. Nov. 1, 2017). Fricke v. Jones, 2021 IL App (5th) 200044), ¶ 19. Although Mr. McBee could have more clearly indicated in his notice that he sought an appeal from both orders, the State does not argue that the notice is deficient and has addressed the merits of Mr. McBee's challenges to both orders. We do as well.
¶ 17 III. ANALYSIS
¶ 18 A. Electronic Monitoring As a Condition of Pretrial Release
¶ 19 The Code establishes certain mandatory conditions of pretrial release-that the defendant submit to the orders and process of the court, not violate any criminal statutes, and surrender any firearms in his possession to law enforcement if charged with offenses including domestic battery, for example. 725 ILCS 5/110-5(c), 110-10(a). Where an offense is alleged against a family or household member, the court must also restrict the defendant's access to the victim. Id. § 10-10(d). Other conditions may be imposed at the court's discretion (id. § 110-5(c), 110-10(b)), based on a nonexclusive list of factors that includes (1) "the nature and circumstances of the offense charged," (2) "the weight of the evidence against the defendant" (taking into account the admissibility of any evidence sought to be excluded), (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 persons 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 that would be posed by the defendant's release (id. § 110-5(a)(1)-(5)).
¶ 20 For defendants, like Mr. McBee, who have been charged with domestic battery, the court may consider a number of other factors as well, including "whether the person has a history of domestic violence," the "severity of the alleged incident," including, but not limited to, whether it involved physical injury (and specifically strangulation), 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." Id. § 110-5(a)(6)(B), (H), (L). After considering all of these factors, the court must impose "the least restrictive conditions or combination of conditions necessary to reasonably ensure the appearance of the defendant as required or the safety of any other person or persons or the community." Id. § 110-5(c).
¶ 21 The Code makes clear that "[t]he rules concerning the admissibility of evidence in criminal trials do not apply to the presentation and consideration of information" at a hearing concerning pretrial detention or release. Id. § 110-6.1(f)(5). Rather, either side "may present evidence *** by way of proffer based upon reliable information." Id. § 110-6.1(f)(2). The court's ultimate decisions "regarding release, conditions of release, and detention prior to trial must be individualized, and no single factor or standard may be used exclusively to order detention." Id. § 110-6.1(f)(7).
¶ 22 Section 110-6.1 of the Code does not establish a standard of review for orders setting conditions of pretrial release. We conclude that our review of such orders is twofold. We review the circuit court's factual findings regarding whether the State presented clear and convincing evidence that the mandatory conditions of release would be insufficient to protect any person or the community under the manifest-weight-of-the-evidence standard. See In re C.N., 196 Ill.2d 181, 208 (2001) (applying a similar standard of review for the requirement of clear and convincing evidence by the State in termination-of-parental rights proceedings). A finding is against the manifest weight of the evidence only if the opposite conclusion is clearly apparent or if the finding is unreasonable, arbitrary, or not based on the evidence presented." In re Jose A., 2018 IL App (2d 180170, ¶ 17.
¶ 23 We have recognized, however, that courts are "endowed with considerable discretion" where, as here, they are called upon to weigh and balance a multitude of factors and arrive at a decision that promotes not only "principles of fundamental fairness" but "sensible and effective judicial administration." Czarnecki v. Uno-Ven Co., 339 Ill.App.3d 504, 508 (2003) (noting that this is the standard of review when a court rules on a forum non conveniens motion). We therefore review the court's ultimate determination regarding the conditions of pretrial release for an abuse of discretion. "An abuse of discretion occurs when the circuit court's decision is 'arbitrary, fanciful or unreasonable,' or where 'no reasonable person would agree with the position adopted by the [circuit] court.'" People v. Simmons, 2019 IL App (1st) 191253, ¶ 9 (quoting People v. Becker, 239 Ill.2d 215, 234 (2010)).
¶ 24 Here, Mr. McBee elected to stand on his notice of appeal rather than file a memorandum in support of his arguments, as he was permitted to do under Rule 604(h)(2) (eff. Oct. 19, 2023). He challenges the imposition of electronic monitoring as a condition of his pretrial release arguing that the State failed to prove by clear and convincing evidence that this condition was necessary, either to mitigate the real and present threat to the safety of any person or persons or the community, to prevent his willful flight, or to ensure his compliance with other conditions of release. Mr. McBee points out that there was no court order prohibiting him from having contact with S.P. at the time of the alleged offense and argues that the State could not meet its burden of showing that electronic monitoring was necessary without putting forth some evidence suggesting that Mr. McBee would fail to abide by such an order if one were entered as a less-restrictive condition of his release.
¶ 25 Mr. McBee cites no case, however, holding that a court must wait for an order of protection to be violated before ordering electronic monitoring as a condition of release. Here, according to the State's unrebutted proffer, Mr. McBee was arrested for domestic battery three times within the past year-and-a-half. One of those incidents involved the same complaining witness, who Mr. McBee argues has a history of changing her mind about such allegations and who he insists is the one who battered him during their altercation. But Mr. McBee does not dispute that he was arrested two other times for battering a different domestic partner. The court was also entitled to consider the severity of the alleged incident, and specifically whether it involved strangulation. S.P. told police that Mr. McBee choked her until she could not breathe and she had to fight back to escape him and seek help. Under these circumstances, the circuit court's finding that electronic monitoring was necessary to ensure S.P.'s safety was not "unreasonable, arbitrary, or not based on the evidence presented." In re Jose A., 2018 IL App (2d) 180170, ¶ 17.
¶ 26 B. Scope of the Order of Protection
¶ 27 The requirement that Mr. McBee have no contact, not just with S.P., but with the parties' infant daughter A.P. is found not in the conditional release order but in the order of protection. Mr. McBee argues that it was error to impose this further restriction on him where the State did not demonstrate that he posed a safety threat to A.P. This court has rejected the argument "that evidence of abuse of the custodial spouse is an insufficient basis to support an order prohibiting unauthorized contact and potential abuse of the children in the custodian's care." In re Marriage of McCoy, 253 Ill.App.3d 958, 963 (1993) (noting that "[o]nce one member of a household is abused, the court has maximum discretionary power to fashion the scope of an order of protection to include other household members or relatives"). Here, the proffered evidence indicates that A.P. is an infant child residing with and cared for by her mother, S.P. No plan was proposed by which Mr. McBee could safely have contact with A.P. without violating the court's prohibition on his contact with S.P. We will not overturn the circuit court's entry of an order of protection absent a clear abuse of discretion (Mowen v. Holland, 336 Ill.App.3d 368, 373 (2003)), and we can find none on this record.
¶ 28 Mr. McBee's conditions of release will be reconsidered at subsequent proceedings in this case. See 725 ILCS 5/110-5(f-5) (West 2022) (providing that "[a]t each subsequent appearance of the defendant before the court, the judge must find that the current conditions imposed are necessary"). The circuit court also retains the authority to vacate or modify a protective order where circumstances have changed, such that "equity no longer justifies a continuance of the injunction." (Internal quotation marks omitted.) In re Marriage of Fischer, 228 Ill.App.3d 482, 488 (1992). Mr. McBee will thus have the opportunity to propose alternatives to the present arrangement that may allow him to safely spend time with his young daughter. On the record as it stands, however, the circuit court's findings are not against the manifest weight of the evidence, and neither the conditions the court imposed nor the order of protection it entered were an abuse of discretion.
¶ 29 VI. CONCLUSION
¶ 30 For the above reasons, we affirm the circuit court's order imposing conditions of pretrial release and its order of protection.
¶ 31 Affirmed.