Opinion
1-24-0326B
05-13-2024
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNY WASHINGTON, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County, Illinois. No. 24110539001 Honorable William Fahy, Judge Presiding.
JUSTICE COGHLAN delivered the judgment of the court. Justices Lavin and Navarro concurred in the judgment.
ORDER
COGHLAN, JUSTICE
¶ 1 Held: The trial court did not abuse its discretion in denying defendant pretrial release.
¶ 2 Defendant Johnny Washington appeals from the trial court's order denying him pretrial release pursuant to the amendments to article 110 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/100-1 et seq. (West 2022)), commonly known as the Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act or Pretrial Fairness Act (Act). See Pub. Act 101-652 (eff. Jan. 1, 2023); Rowe v. Raoul, 2023 IL 129248, ¶ 52 (lifting stay and setting effective date as September 18, 2023). For the following reasons, we affirm.
¶ 3 BACKGROUND
¶ 4 Defendant was arrested on January 29, 2024, and was charged with unlawful use of a weapon by a felon (UUWF) (720 ILCS 5/24-1.1) (West 2022)) and possession of a controlled substance (720 ILCS 570/402(c) (West 2022)). The State filed a petition for pretrial detention, alleging that the proof is evident or the presumption great that defendant committed the qualifying offense of UUWF, and 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.
¶ 5 A pretrial detention hearing was held on January 29, 2024, at which the State proffered the following evidence. Earlier that day, defendant was the front passenger in a vehicle that was curbed because he was not wearing a seat belt. Defendant "adjust[ed] his front waistband" as police officers activated their emergency lights, and the officers noticed a "bulge" in defendant's "front waistband" as they approached the vehicle. Defendant initially refused comply with the officers' orders to exit the vehicle. He complied after being ordered out for a second time, "but told [them] they cannot search him." Upon conducting a "protective pat down," officers recovered a loaded 9mm Glock handgun and two baggies containing suspect cocaine.
¶ 6 Defendant has two prior felony convictions: a 2004 attempted murder conviction, for which he was sentenced to 17 years' imprisonment in the Illinois Department of Corrections (IDOC); and a 2019 "felony possession of a firearm" conviction, for which he received 5 years in the IDOC and was discharged from parole in April of 2023.
¶ 7 The State argued that defendant poses a real and present threat to the safety of the community given his criminal history and the fact that he "armed himself with a gun" in this case. The State also argued that no condition or combination of conditions can mitigate the safety risk given that he was discharged from parole last year and "picked up another gun case."
¶ 8 Defense counsel responded that the State failed to prove by clear and convincing evidence that the proof is evident or presumption great that defendant committed UUWF. Specifically, counsel noted that the Act allows the trial court to consider "potential 4th Amendment issues" in weighing the evidence against defendant, which were present here. Counsel maintained that there "isn't enough to search [defendant]" because, under People v. Bloxton, 2020 IL App (1st) 181216, searching someone based solely on the observation of a "bulge" does not satisfy the fourth amendment.
¶ 9 Defense counsel further asserted that the State failed to show by clear and convincing evidence that defendant poses a real and present threat to the community where defendant did not brandish the firearm, make any movements towards his waistband after he was ordered out of the car, or threaten or resist the police. Additionally, defendant has "no new violent criminal activity flag"; his Pretrial Services Assessment scores were 3 for new criminal activity and 2 for failure to appear; and his pretrial release recommendation was release with pretrial monitoring. The "only allegation *** of any violence" in his record is his 2004 conviction for attempted murder, which is "quite remote in time," especially considering that he committed that offense at the age of 13.
¶ 10 In mitigation, defense counsel offered that defendant is now 34 years old and goes to church with his girlfriend, who attended the detention hearing. Defendant also lives with his girlfriend, helps take care of her son, and has three children of his own, one of whom also lives with him. Defendant earned his GED while incarcerated in 2012 and recently became involved with Heartland Alliance, which helped him get a job doing janitorial work at Northwestern Hospital. Defense counsel asked that the trial court impose pretrial services or electronic monitoring (EM).
¶ 11 The trial court found that the State proved by clear and convincing evidence that the proof is evident or presumption great that defendant committed UUWF, which is a detainable offense under the Act. The trial court "considered] [that] the Defense does make some points with regards to some potential 4th amendment issues" but found it "difficult at this juncture of the proceedings to know whether those challenges would be successful or not. I would have to hear more. That may develop as the case goes on."
¶ 12 The trial court also found that defendant poses a real and present threat to the safety of the community because he "once again chose to arm himself with a deadly weapon, a loaded firearm, on his person when he was previously convicted of two felon[ies]," including attempted murder. In determining that no condition or combination of conditions could mitigate the real and present threat posed by defendant's release, the court considered the facts offered in mitigation, but found them to be outweighed by defendant's "extensive criminal history"; his possession of a loaded firearm and controlled substances; and the fact that EM would give him "two days of movement" and would not "prevent [him] from continuing to possess firearms."
¶ 13 ANALYSIS
¶ 14 Defendant argues that the State failed to prove by clear and convincing evidence that he 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.
¶ 15 Pursuant to article 110 of the Code, as amended, "[a]ll defendants shall be presumed eligible for pretrial release" and pretrial release may only be denied in certain statutorily limited situations. 725 ILCS 5/110-6.1(e) (West 2022). After filing a timely verified petition requesting denial of pretrial release, the State has the burden of proving by clear and convincing evidence that: the proof is evident or the presumption great that defendant has committed a qualifying offense; defendant's pretrial release poses a real and present threat to the safety of any person or the community, based on the specific articulable facts of the case, or that defendant has a high likelihood of willful flight to avoid prosecution; and less restrictive conditions would not mitigate the real and present threat to the safety of any person or the community and/or prevent defendant's willful flight. 725 ILCS 5/110-6.1(e), (f) (West 2022).
¶ 16 Factors that the trial court may consider in making a "dangerousness" determination, i.e., that the defendant poses a real and present threat to any person or the community (725 ILCS 5/110-6.1(g) (West 2022)), include, but are not limited, to (1) the nature and circumstances of any offense charged, including whether the offense is a crime of violence, involving a weapon, or a sex offense; (2) the history and characteristics of the defendant; (3) the identity of any person or persons whose safety the defendant is believed to pose a threat, and the nature of the threat; (4) any statements made by, or attributed to, the defendant; (5) the age and physical condition of the defendant; (6) the age and physical condition of any victim or complaining witness; (7) whether the defendant is known to possess or have access to any weapons; (8) whether at the time of the current offense or any other offense, the defendant was on probation, parole, or supervised release from custody; and (9) any other factors, including those listed in section 110-5 of the Code (725 ILCS 5/110-5 (West 2022)). 725 ILCS 5/110-6.1(g) (West 2022).
¶ 17 We review the trial court's ultimate determination regarding pretrial release for an abuse of discretion (People v. Inman, 2023 IL App (4th) 230864, ¶ 10 (citing People v. Simmons, 2019 IL App (1st) 191253, ¶ 9)), while we review the trial court's factual findings under the manifest weight of the evidence standard (People v. Rodriguez, 2023 IL App (3d) 230450, ¶ 8). See also People v. Trottier, 2023 IL App (2d) 230317, ¶ 13. An abuse of discretion occurs only when the court's judgment is fanciful, arbitrary, or unreasonable, or when no reasonable person would agree with the court's position. Simmons, 2019 IL App (1st) 191253, ¶ 9. "A finding is against the manifest weight of the evidence only if the opposite conclusion is clearly evident or the finding itself is unreasonable, arbitrary, or not based on the evidence presented." People v. Deleon, 227 Ill.2d 322, 332 (2008).
There has been considerable disagreement regarding which standard of review applies to pretrial detention orders. See, e.g., People v. Whitmore, 2023 IL App (1st) 231807, ¶ 18 (applying only an abuse of discretion standard); People v. Pitts, 2024 IL App (1st) 232336, ¶ 29 (applying exclusively a manifest weight standard); People v. Sorrentino, 2024 IL App (1st) 232363, ¶ 34 (reviewing the denial of pretrial release de novo, but findings of historical fact for manifest error). Our conclusion would be the same under any of these standards.
¶ 18 Given defendant's criminal history and the nature of the offense, the trial court's dangerousness determination was not against the manifest weight of the evidence. According to the State's proffer, officers observed defendant adjusting the "bulge" at his waistband, which was later determined to be a loaded, deadly weapon. Defendant also has a 2004 attempted murder conviction and another firearm possession conviction, for which he was only discharged from parole less than a year before the instant offense. Accordingly, the trial court's conclusion that defendant poses a real and present threat to the safety of the community was not "unreasonable, arbitrary, or not based on the evidence presented." Deleon, 227 Ill.2d at 332.
¶ 19 Defendant argues that this is just a case of "ordinary gun possession," where he did not use, brandish, or threaten anyone with the firearm. Nor did he possess an extended magazine, an automatic weapon, or a defaced firearm. See People v. Vance, 2024 IL App (1st) 232503, ¶¶ 2223 (finding that defendant's possession of a "highly destructive" fully automatic firearm while traveling in a stolen vehicle "takes this case far beyond an ordinary case of gun possession"). We cannot say that a defendant with two prior felony convictions-including attempted murder and another firearm conviction-in possession of a loaded, deadly weapon is "ordinary." Defendant overlooks his criminal history and "the inherent dangerousness of firearms, particularly when they are in possession of those who have been prohibited from possessing them." See People v. Lee, 2024 IL App (1st) 232137, ¶ 27.
¶ 20 Defendant further asserts that the trial court "failed to properly weigh" evidence that "proof of the charged crime may have been the result of an unlawful search or seizure when weighing the evidence for detention." Defendant acknowledges that he has forfeited this argument by failing to raise it in his notice of appeal. He nevertheless urges us to review this issue under the plain error doctrine. See People v. Sebby, 2017 IL 119445, ¶ 48. However, the first step in a plain error analysis is to determine whether a clear or obvious error occurred (see id. ¶ 49), and we find that no error occurred here.
¶ 21 Section 110-6.1(f)(6) of the Code provides that: "The defendant may not move to suppress evidence ***, however, evidence that proof of the charged crime may have been the result of an unlawful search or seizure, or both, *** is relevant in assessing the weight of the evidence against the defendant." 725 ILCS 5/110-6.1(f)(6) (West 2022). The trial court is "not authorized to enter a suppression order at this stage in the proceedings, thus prohibiting it from expressing any opinion as to the existence of reasonable, articulable suspicion." People v. Parker, 2024 IL App (1st) 232164, ¶ 67.
¶ 22 The trial court here did consider potential fourth amendment implications of the search when weighing the evidence against defendant. Specifically, the court "considered] [that] the Defense does make some points with regards to some potential 4th Amendment issues" but found that it was "difficult at this juncture of the proceedings to know whether those challenges would be successful or not." The court noted that it would "have to hear more" on the issue, which "may develop as this case goes on," but at this stage, the proffered evidence against defendant outweighed those potential fourth amendment considerations. As such, the trial court complied with section 110-6.1(f)(6). See id. ¶¶ 67-68 ("it is clear from the report of proceedings that the circuit court considered defendant's fourth amendment argument" and "balanced these considerations against the State's proffer"); People v. Forthenberry, 2024 IL App (5th) 231002, ¶¶ 36-37 (finding that the trial court complied with section 110-6.1(f)(6) where it "did well in considering *** the potential for suppression" while also noting that it "would not be making an ultimate determination as to suppression").
¶ 23 Because we find that no error occurred, defendant's alternative argument that defense counsel was ineffective for failing to raise this issue in the notice of appeal also fails. See People v. Stone, 2018 IL App (3d) 160171, ¶ 24 ("the absence of error nullifies any ineffective assistance of counsel argument because counsel's performance is not deficient for failing to raise a meritless issue").
¶ 24 Accordingly, the trial court did not abuse its discretion in denying defendant pretrial release.
¶ 25 CONCLUSION
¶ 26 For all of these reasons, we affirm the order of the circuit court of Cook County.
¶ 27 Affirmed.