2024 IL App (4th) 231274-U 

NO. 4-23-1274 

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, 

Plaintiff-Appellee, 

v. 

D’ANDRE T. TOWNES, 

Defendant-Appellant. 

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Appeal from the

Circuit Court of

Sangamon County 

No. 22CF836 

Honorable 

Robin L. Schmidt, 

Judge Presiding.

 

 JUSTICE LANNERD delivered the judgment of the court.

 Justice Knecht concurred in the judgment.

 Justice DeArmond specially concurred.

ORDER

¶ 1 Held: Defendant failed to establish the circuit court abused its discretion by denying 

defendant pretrial release. 

¶ 2 Defendant, D’Andre T. Townes, appeals the circuit court’s order denying him 

pretrial release pursuant to section 110-6.1 of the Code of Criminal Procedure of 1963 (Code), 

hereinafter as amended by Public Acts 101-652, § 10-255 and 102-1104, § 70 (eff. Jan. 1, 2023)

(725 ILCS 5/110-6.1 (West 2022)), commonly known as the Pretrial Fairness Act (Act). Defendant 

checked the following boxes on his Illinois Supreme Court Rule 604(h) (eff. Oct. 19, 2023) notice 

of appeal form, alleging the State failed to meet its burden of proving by clear and convincing 

evidence that (1) the proof is evident or the presumption great that defendant committed a 

qualifying offense, (2) defendant posed a real and present threat to the safety of any person or 

FILED

February 7, 2024

Carla Bender

4th District Appellate

Court, IL

NOTICE

This Order was filed under 

Supreme Court Rule 23 and is 

not precedent except in the 

limited circumstances allowed 

under Rule 23(e)(1). 
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persons or the community based on the specific and articulable facts of this case, and (3) no 

condition or combination of conditions could mitigate the threat defendant posed. Defendant

further argues the court erred by relying upon a single factor, namely the discharge of a weapon, 

in denying him pretrial release. The Office of the State Appellate Defender (OSAD) was appointed 

to represent defendant on appeal. However, pursuant to Rule 604(h), OSAD chose not to file a 

memorandum. We affirm the circuit court’s denial of defendant’s pretrial release.

¶ 3 I. BACKGROUND

¶ 4 On August 18, 2022, defendant was arrested. At defendant’s first appearance, the 

circuit court imposed a $1 million bond. The State eventually charged defendant by indictment 

with 10 criminal counts: aggravated discharge of a firearm (count I) (720 ILCS 5/24-1.2(a)(3) 

(West 2022)); being an armed habitual criminal (count II) (720 ILCS 5/24-1.7(a) (West 2022)); 

armed violence (count III) (720 ILCS 5/33A-2(a) (West 2022)); attempted disarming of a peace 

officer (firing officer’s holstered service weapon) (count IV) (720 ILCS 5/31-1a(b) (West 2022)); 

attempted disarming of a peace officer (grabbing the officer’s taser) (count V) (720 ILCS 5/31-

1a(b) (West 2022)); manufacture/delivery of methamphetamine (count VI) (720 ILCS 

646/55(a)(1) (West 2022)); manufacture/delivery of a controlled substance (cocaine) (count VII)

(720 ILCS 570/401(c)(2) (West 2022)); manufacture/delivery of a controlled substance (heroin)

(count VIII) (720 ILCS 570/401(c)(2) (West 2022); possession of methamphetamine (count IX)

(720 ILCS 646/60(a) (West 2022); and resisting a peace officer (count X) (720 ILCS 5/31-1(a-7) 

(West 2022)). Defendant never posted bond and remained in pretrial detention. 

¶ 5 On September 21, 2023, defendant filed a motion for reconsideration of his pretrial 

release conditions citing section 110-7.5(b) of the Code (725 ILCS 5/110-7.5(b) (West 2022)). 

Defendant argued he was a nonviolent offender with ties to the community, his bail was set only 
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to ensure his appearance in court, and less restrictive conditions could be imposed to ensure he 

appeared for court. 

¶ 6 In response, on October 6, 2023, the State filed a verified petition pursuant to

section 110-6.1 of the Code (id. § 110-6.1) to deny defendant pretrial release. The State alleged 

defendant was charged with qualifying offenses and defendant’s pretrial release posed a real and 

present threat to the safety of any person, persons, or the community. Specifically, the State alleged 

the circuit court should deny the defendant pretrial release for the following reasons:

“(a) The defendant is charged with a felony offense other 

than a forcible felony for which, based on the charge or the 

defendant’s criminal history, a sentence of imprisonment, without 

probation, periodic imprisonment or conditional discharge, is 

required by law upon conviction, and the defendant’s pretrial release 

poses a real and present threat to the safety of any person or persons 

or the community. See 725 ILCS 5/110-6.1(a)(1).

(b) The defendant is charged with a forcible felony, or any 

other felony which involves the threat of or infliction of great bodily 

harm or permanent disability or disfigurement and the defendant’s 

pretrial release poses a real and present threat to the safety of any 

person or persons or the community. See 725 ILCS 

5/110-6.1(a)(1.5).” 

Finally, the State alleged defendant is charged with aggravated discharge of a firearm and being 

an armed habitual criminal and his pretrial release poses a real and present threat to the safety of 

any person or persons or the community. See 725 ILCS 5/110-6.1(a)(6) (West 2022). 
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¶ 7 The State’s petition provided the following factual basis in support of detaining 

defendant before his trial.

“On August 18, 2022, the Springfield Police Department 

conducted a traffic stop of a Chevrolet Impala. The Defendant was 

identified as the driver and asked to step out of the vehicle. A K9 

sniff alerted to the possibility of narcotics inside of the vehicle. 

During a search of the vehicle, an officer located a hidden 

compartment containing a bag of 2.9 grams heroin/cocaine and 36.8 

grams methamphetamine. After discovering the bag, an officer 

attempted to place the Defendant in handcuffs. The Defendant took 

off running[ ] but was tackled. During the scuffle, the Defendant 

was able to grab the firearm of an officer and discharge it in the 

direction of another[ ] approaching officer. The Defendant also 

attempted to grab another officer’s taser before he was fully 

restrained and placed under arrest. One officer suffered an injury to 

his shoulder while trying to restrain the Defendant.

After the Defendant’s arrest, officers located a silver Smith 

& Wesson 9mm pistol in the hidden compartment where the 

narcotics were found. 

The traffic stop of the Chevrolet Impala was part of a greater 

narcotics investigation. On July 27, 2022, a confidential source met 

with the Defendant and purchased heroin from him. At the time of 

the controlled buy, the Defendant was driving the same Chevrolet 
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Impala. On August 18, 2022, a second controlled buy was planned 

with a confidential source, but the buy was abandoned. The traffic 

stop was conducted with the belief that the narcotics from the 

planned buy would be in the Defendant’s possession.”

The petition also outlined defendant’s 16-year criminal history. In 2007, defendant was convicted 

for possession of a controlled substance and sentenced to probation, which was terminated. In 

2008, defendant was convicted of unlawful possession of a weapon by a felon and was sentenced 

to 3 years in prison. Further, in 2008 and 2016, defendant was convicted for manufacture/delivery 

of a controlled substance and sentenced to prison terms of 5 and 14 years, respectively. 

¶ 8 At the detention hearing on November 1, 2023, the circuit court noted other matters

were pending before the court in addition to those related to defendant’s pretrial detention. 

Defendant, who was proceeding pro se at the hearing, had filed a pro se motion to suppress 

evidence from the traffic stop. The State had filed a notice to use other crimes evidence. Both 

parties agreed they needed more time to address those matters and agreed to proceed only on the 

issue of defendant’s pretrial detention. 

¶ 9 Defendant argued he should be given pretrial release because he had strong ties to 

the community and his many family members would help him find a job. In addition, defendant 

noted he had never missed a court date and successfully completed different work release 

programs. Defendant also maintained he had a nonviolent history. According to defendant, “[t]he 

only charge that insinuates violence that I’m charged with right now is aggravated discharge of a 

firearm.” As to that charge, defendant claimed the State could not prove every element of that 

crime, particularly the mens rea element. Defendant also asserted his motion to suppress would 

result in other charges being dismissed. Further, defendant argued the police officers’ decisions 
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not to use deadly force during his arrest established he was not a dangerous threat at the time. 

Finally, defendant told the court he would submit to any home confinement or conditions. 

¶ 10 Defendant’s paramour, Marlesha Hatchett, and her mother, Teretha Hatchett, both 

testified to defendant’s good character and his contributions to their family. Marlesha stated she 

would allow defendant to live with her. Further, she claimed defendant had a job “kind of waiting 

on him.” Teretha testified defendant had a good relationship with her grandson. She further noted 

defendant wanted to help his community. Teretha confirmed she supported defendant and would 

help him. 

¶ 11 Referencing its petition to detain defendant, the State argued several bases existed 

for detaining defendant. According to the State, count III (armed violence) and counts VI through 

IX (drug offenses) were not forcible felonies. However, they were detainable offenses because 

defendant’s criminal history made him ineligible for a community-based sentence. Similarly, the 

State noted defendant could be detained based on his aggravated discharge of a firearm charge and 

being an armed habitual criminal charge because he was a real and present threat to the community.

¶ 12 The State then recounted the factual basis from the petition and defendant’s 

“concerning criminal history.” The State agreed defendant did not have past “victims,” but his past 

crimes were dangerous. Further, the State highlighted defendant’s pattern of returning to 

dangerous, criminal conduct over the years. According to the State, defendant’s conduct of selling 

drugs and carrying a weapon could be very dangerous for both himself and others. The State also 

argued the facts of this case should give the circuit court serious pause because of what defendant 

was willing to do when he felt caught or desperate to escape the authorities. The State urged “no 

combination of factors or circumstances *** could be utilized other than simply detaining the 

defendant prior to trial that could ultimately keep the public safe.” 
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¶ 13 In response, defendant argued no victim existed to fear him. He also stated he did 

not intentionally injure the officer who tackled him and had no intention of hurting any of the other 

officers. According to defendant, he could not see the area around him when he discharged the 

firearm. He further argued the gunshot did not cause any damage. Finally, defendant stated that 

while the discharge of the firearm insinuated violence, the act was not done in an intentional and

violent manner.

¶ 14 In determining whether defendant should be released from pretrial detention, the 

circuit court noted the State had presented compelling evidence. According to the court, some of 

defendant’s arguments would be more appropriately argued before a jury or possibly at a hearing 

on defendant’s motion to suppress. However, as to whether defendant should be given pretrial 

release, the court noted defendant was a convicted felon and had a gun and drugs in his vehicle. 

The court also stated the State had charged defendant with dangerous conduct, including 

non-probationable offenses. While acknowledging defendant claimed he suffered a mental health 

crisis during the traffic stop, the court stated defendant was engaged in “dangerous business.” The 

court explained that fighting with a police officer for his weapon was extremely serious. In 

addition, the court noted it was very disturbed that the police officer’s gun was actually discharged 

when defendant was fighting with the officer for his weapon. According to the court, it was 

necessary to detain him pending trial to keep the community safe. 

¶ 15 In the circuit court’s written order, it found by clear and convincing evidence that 

(1) the proof is evident or the presumption great that defendant committed a detainable offense 

pursuant to subsection 6.1(a) of the Code (725 ILCS 5/110-6.1(a)(1)–(7) (West 2022)),

(2) defendant’s pretrial release posed a real and present threat to the safety of the community, 

based on the specific articulable facts of the case, and (3) no conditions or combination of 
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conditions could mitigate the real and present threat defendant posed to the community based on 

the specific articulable facts of this case. The court’s written order provided the following reasons 

for its conclusion defendant should be denied pretrial release: (1) the nature and circumstances of 

the charged offenses; (2) defendant’s prior criminal history; (3) defendant’s psychological, 

psychiatric or other social history indicated he had a violent, abusive, or assaultive nature; 

(4) defendant posed a threat to Springfield police officers; (5) the victim’s injuries; (6) defendant 

was known to possess or have access to weapons; and (7) defendant had been released from the 

Illinois Department of Corrections in 2021. 

¶ 16 Defendant filed a timely notice of appeal under Illinois Supreme Court Rule 604(h) 

(eff. Oct. 19, 2023). 

¶ 17 II. ANALYSIS

¶ 18 Initially, we note that this disposition was due January 30, 2024. Although we made 

every effort to comply with the time requirements of Rule 604(h), further deliberations on this 

matter required additional time and thus we find good cause for filing beyond the deadline.

¶ 19 As noted earlier, OSAD did not file a memorandum in this case. Thus, we are left 

to examine the arguments raised in defendant’s notice of appeal.

¶ 20 This court reviews a circuit court’s decision to grant or deny a verified petition for 

pretrial detention for an abuse of discretion. See People v. Inman, 2023 IL App (4th) 230864, ¶ 11. 

“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.” (Internal quotation marks omitted.) Id. ¶ 10. Under this standard, a reviewing court will not 

substitute its own judgment for that of the circuit court simply because it would have analyzed the 

proper factors differently. Id. ¶ 11. “ ‘[W]e will not substitute our own judgment for the trier of 
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fact on issues regarding the weight of the evidence or the credibility of the witnesses.’ ” Id. 

(quoting People v. Vega, 2018 IL App (1st) 160619, ¶ 44). 

¶ 21 Before denying pretrial release, the circuit court must have before it clear and 

convincing evidence that the proof is evident or the presumption great that the defendant 

committed a detention eligible offense, the defendant is a real and present threat to the safety of a 

person, persons, or the community, and no condition or combination of conditions found in section 

110-10(b) (725 ILCS 5/110-10(b) (West 2022)) could mitigate that threat. See Id. § 110-6.1(e)(1), 

(2), (3)(i) (West 2022). Section 110-6.1(e) of the Code (id. § 110-6.1(e)) instructs the court to 

consider “the specific articulable facts of the case” when determining whether a defendant poses 

a real and present threat and whether any condition or combination of conditions could mitigate 

that threat. Section 110-6.1(g) of the Code (id. ¶ 110-6.1(g)) provides nine factors to be considered 

by the court when making a determination of dangerousness. 

¶ 22 A. Evidence Regarding Defendant’s Commission of the Charged Offenses

¶ 23 Defendant checked the box on his form notice of appeal indicating the State failed 

to meet its burden of proving by clear and convincing evidence that the proof was evident or the 

presumption great that defendant committed the charged offenses in this case. In explaining his 

contention of error, defendant first points to his “currently pending” motion to suppress evidence. 

According to defendant, the traffic stop that led to the charges in this case “was pretextual and 

unjustified at its inception,” and the police unlawfully prolonged the stop while waiting for a canine 

unit. Defendant also argues the State did not present clear and convincing evidence that the proof 

is evident or the presumption great that he committed the offense of aggravated discharge of a 

firearm because he did not load the firearm or know the firearm’s safety switch was not engaged. 
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¶ 24 We first note section 110-6.1(f)(6) of the Code (725 ILCS 5/110-6.1(f)(6) (West 

2022)) does not allow defendants to move to suppress evidence during detention hearings. While 

a defendant can argue the State’s evidence should not be given much weight because it “may have 

been the result of an unlawful search or seizure, or both, or [obtained] through improper 

interrogation” (id.), defendant did not make this argument at the detention hearing. As a result, for 

purposes of this appeal, this argument is forfeited. See People v. Martin, 2023 IL App (4th) 

230826, ¶¶ 16-17 (“The purpose of requiring defendants to raise these matters with the trial court 

is to allow for proper development of legal precedent regarding a brand-new statute.”).

¶ 25 As for defendant’s argument that the State did not present clear and convincing 

evidence that the proof was evident or the presumption great that defendant committed the 

aggravated discharge of a firearm, he failed to make this same argument with regard to all of the 

other detention eligible offenses he was charged with committing. We note the State argued and 

the circuit court agreed that defendant was detainable under section 110-6.1(a)(1) of the Code for 

the following charged offenses, in addition to the aggravated discharge of a firearm charge, 

because defendant’s criminal history made him ineligible for a community-based sentence: 

(1) being an armed habitual criminal (count II); (2) armed violence (count III); (3) attempted 

disarming of a police officer (counts IV and V); and (4) the drug offenses (counts VI through IX). 

See 725 ILCS 5/110-6.1(a)(1) (West 2022).

¶ 26 As a result, even assuming, arguendo, defendant could establish the State failed to 

meet its burden of proving by clear and convincing evidence that the proof is evident or the 

presumption great that defendant committed the offense of aggravated discharge of a firearm—

which defendant could not do based on the evidence before the circuit court—defendant failed to

argue the State did not meet its burden with regard to the other charges listed above. 
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¶ 27 We note this court “is not a depository in which the appellant may dump the burden 

of argument and research.” (Internal quotation marks omitted.) Inman, 2023 IL App (4th) 230864, 

¶ 13. As a result, we need not address this issue further.

¶ 28 B. Dangerousness

¶ 29 Defendant next argues the State failed to prove by clear and convincing evidence 

that he posed a real and present threat to the safety of any person, persons, or the community based 

on the specific, articulable facts of this case. According to defendant, the circuit court found him 

dangerous “based solely on the discharge of the firearm.” Defendant also asserts he does not pose 

a real and present threat to the community because the gunshot did not injure anyone, cause 

property damage, and he did not intend to harm anyone.

¶ 30 Contrary to defendant’s claim, the circuit court did not base its dangerousness 

determination solely upon the discharge of the firearm. The court thoroughly explained its reasons 

for finding defendant posed a real and present threat to the community. In addition to discharging 

the firearm, the court noted defendant was a convicted felon, was engaged in “dangerous business,” 

had a gun and drugs in his vehicle, and was fighting a police officer for the officer’s weapon. As 

a result, defendant’s argument is not supported by the record. 

¶ 31 C. Less Restrictive Conditions

¶ 32 Defendant next checked a box on his notice of appeal form alleging the State failed 

to prove by clear and convincing evidence that no condition or combination of conditions could 

mitigate defendant’s real and present threat to the safety of a person, persons, or the community. 

We note most of defendant’s argument is based on his assertion he is not dangerous, which we 

have already found meritless. As we discussed above, the circuit court outlined several reasons 

why defendant posed a danger to the community.
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¶ 33 As for the circuit court’s finding that no condition or combination of conditions 

could mitigate defendant’s real and present threat to the community, defendant only states that he 

would “comply with any conditions imposed.” This is not an argument that the circuit court abused 

its discretion by determining no condition or combination of conditions could mitigate the threat 

defendant posed. As stated earlier, “[t]he appellate court is not a depository in which the appellant 

may dump the burden of argument and research.” (Internal quotation marks omitted.) Inman, 2023 

IL App (4th) 230864, ¶ 13. As a result, defendant has failed to carry his burden of establishing the 

circuit court abused its discretion on this issue. 

¶ 34 D. Sole Basis for Detention 

¶ 35 Finally, defendant argues the circuit court’s decision does not comply with section 

110-6.1(f)(7) of the Code (725 ILCS 5/110-6.1(f)(7) (West 2022)), which provides that 

“[d]ecisions 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. Risk 

assessment tools may not be used as the sole basis to deny pretrial release.” Defendant claims he 

was denied pretrial release solely because the firearm in this case discharged. 

¶ 36 This argument is refuted by the record and meritless. The circuit court cited many 

reasons for denying defendant pretrial release and did not rely on any one factor or standard. As a 

result, once again, defendant has failed to meet his burden of showing the circuit court abused its 

discretion by denying him pretrial release. 

¶ 37 III. CONCLUSION

¶ 38 For all these reasons, we affirm the judgment of the circuit court.

¶ 39 Affirmed.

¶ 40 JUSTICE DeARMOND, specially concurring: 
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¶ 41 I agree with the outcome of this case. However, while the majority finds the 

defendant forfeited his narrow argument regarding why the State failed to prove by clear and 

convincing evidence the proof was evident or presumption great that he committed aggravated 

discharge of a firearm (supra ¶¶ 23-24), “forfeiture of an issue is a limitation on the parties and 

not on this court.” People v. Raney, 2014 IL App (4th) 130551, ¶ 33, 8 N.E.3d 633. Defendant’s 

claim is based on what I believe to be a mistaken reading of subsection 6.1(e) of the Code, which 

is regularly overlooked in many of these Rule 604(h) appeals, and we should have addressed it 

here.

¶ 42 Subsection 6.1(e)(1) appears to be frequently read to mean the State must prove 

“by clear and convincing evidence” the “proof is evident or presumption great” defendant 

committed the charged offense, and some courts have described it in those terms. 725 ILCS 5/110-

6.1(e)(1) (West 2022). Although not the language of the statute, it is, unfortunately, the language 

found in the form notices of appeal with which we are all now familiar. See Article VI Forms 

Appendix to the Illinois Supreme Court Rules; Ill. S. Ct. R. 606(d) (eff. Oct. 19, 2023) (“The State 

failed to meet its burden of proving by clear and convincing evidence that the proof is evident or 

the presumption great that defendant committed the offense(s) charged.”).

¶ 43 However, subsection 6.1(e)(1) states, in relevant part, “the State shall bear the 

burden of proving by clear and convincing evidence that: (1) the proof is evident or the 

presumption great that the defendant has committed an offense listed in subsection (a).” (Emphasis 

added.) 725 ILCS 110-6.1(e)(1) (West 2022).

¶ 44 I suggest the level of proof necessary to establish the commission of an offense as 

a possible basis for detention, or, as we knew it previously, for the setting of bond, is probable 

cause—subsection 6.1(b) and an endless body of caselaw say so. See 725 ILCS 5/110-6.1(b) (West 
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2022). Subsection 6.1(e) needs to be read chronologically, in the order such proceedings would 

transpire. See 725 ILCS 5/110-6.1(e) (West 2022). If the State cannot establish probable cause for 

the commission of the offense charged, then the hearing is over because there is no basis for 

detention. 725 ILCS 5/110-6.1(b) (West 2022) (“If there is a finding of no probable cause, the 

defendant shall be released.”). The statute contemplates the possibility of a probable cause 

determination occurring earlier, as it was in this case. See 725 ILCS 5/110-6.1(b) (West 2022) 

(instructing the court to determine probable cause “unless a hearing pursuant to Section 109-3 of 

this Code has already been held or a grand jury has returned a true bill of indictment against the 

defendant”). If probable cause is not found earlier, it becomes a part of the State’s proffer during 

the detention hearing. But probable cause is still required, or subsection 6.1(b) would not say the 

court must make such a finding. If a probable cause finding is not sufficient to reach a consideration 

of defendant’s “detainability,” subsection 6.1(b) becomes superfluous. We do not interpret statutes 

in ways that ignore their plain language or render sections meaningless or superfluous. People v. 

Rowell, 2020 IL App (4th) 190231, ¶ 16, 165 N.E.3d 477.

¶ 45 Defendant is mistaken about the State’s burden under the facts of this case. The 

September 2022 indictment eliminated the need for the circuit court to find probable cause in this 

instance. The statute contemplates the court making a probable cause determination, either at the 

time of the detention hearing or before. See 725 ILCS 5/110-6.1(b) (West 2022). Having done so, 

the State’s burden was then to establish “by clear and convincing evidence” that the proof was 

evident or the presumption great “the defendant has committed an offense listed in subsection 

(a)”—in other words, a detainable offense. (Emphasis added.) 725 ILCS 5/110-6.1(e)(1) (West 

2022). 
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¶ 46 Some offenses are listed by name, while others are described by certain 

characteristics or factors which must be found before they are considered detainable. See 725 ILCS 

5/110-6.1(a)(1)-(7) (West 2022). When the charged offense is in the latter category, the State is 

required to show not only the commission of an offense, but the additional factors rendering the 

offense detainable. Here, because defendant was charged with offenses identified by both name 

and circumstances, the State needed to identify them as detainable under subsections (a)(1) through 

(a)(7) or present additional information establishing the circumstances under which the offenses 

may serve as a basis for detention. The State does not have to prove the commission of the offense 

again. 

¶ 47 Defendant’s interpretation of the statute, and the interpretation I have seen in other 

cases, means the State is required to meet two different and increasingly stringent burdens of proof 

to establish the commission of the offense in the same proceeding. That hardly comports with any 

other aspect of criminal procedure and jurisprudence, other than the trial itself. There, the State 

must meet the prima facie threshold to survive a directed verdict/finding at the close of the casein-chief and then establish the defendant’s guilt beyond a reasonable doubt. This forms a bedrock 

of constitutional rights in a criminal trial. But this is not a trial. It is a detention hearing.

¶ 48 I find a more reasonable interpretation of the statute to be that the State must 

establish the commission of an offense by probable cause, but it must establish the circumstances 

making the offense “detainable” by clear and convincing evidence, just as it must for each of the 

other factors listed in subsections (e)(1) through (e)(4). If the offense is listed by name in 

subsection (a)(1) through (a)(7), then the proof is simple. The State must show probable cause the 

offense was committed, and the statute identifies it as a detainable offense. If the offense requires 

some additional factor or condition (e.g., any other forcible felony with great bodily harm, 
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permanent disability, or disfigurement), then the State might need to show more. In that case, it 

must show “the proof is evident or the presumption great” the offense is one for which defendant 

can be detained. 725 ILCS 5/6.1(e)(1) (West 2022).

¶ 49 The use of “committed” in subsection (e)(1) (i.e., “the proof is evident or the 

presumption great that the defendant has committed an offense listed in subsection (a)” (emphasis 

added) (725 ILCS 5/6.1(e)(1) (West 2022)) does not mean the commission of the offense must be 

proven again. It simply means the probable cause component required in subsection (b) must be 

established before the circuit court reaches the issue of the offense’s detainability. In most 

instances, the evidence of both will be presented at the same time through the State’s proffer. In 

cases involving an earlier probable cause finding, the State may need to present more evidence of 

the offense’s detainability, and it is that evidence for which the proof must be evident or the 

presumption great. 

¶ 50 But what does that mean? This language is not new. Article I, section 9 of the 

Illinois Constitution provides: “All persons shall be bailable by sufficient sureties, except for the 

following offenses where the proof is evident or the presumption great ***.” (Emphasis added.) 

Ill. Const. 1970, art. I, § 9. When discussing the constitutional right to bail, which usually arose 

prior to a preliminary hearing, and the right courts have to qualify it, our supreme court, in People 

ex rel. Hemingway v. Elrod, 60 Ill. 2d 74, 322 N.E.2d 837 (1975), compared the language of article 

I, section 9 of the Illinois Constitution of 1970 with the language of section 110-4 of the Code of 

Criminal Procedure at the time (Ill. Rev. Stat. 1971, ch. 38, ¶ 110-4) , noting the “proof is evident 

or the presumption great” language was the same as that contained in section 7 of article II of the 

1870 Illinois Constitution. Hemingway, 60 Ill. 2d at 76. The Hemingway court found the circuit 

court’s authority to manage the conduct of proceedings to deny or revoke bail when appropriate 
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“must not be based on mere suspicion but must be supported by sufficient evidence to show that 

it is required.” Hemingway, 60 Ill. 2d at 79-80. That sounds like probable cause to me.

¶ 51 In People v. Miller, 2023 IL App (3d) 230488-U, when addressing the defendant’s 

Rule 604(h) appeal challenging the sufficiency of the evidence to detain, the court found, “First, 

the defendant was indicted on all the felony offenses initially charged here, thus showing that the 

proof was evident that defendant committed the crimes charged.” (Emphasis added.) Miller, 2023 

IL App (3d) 230488-U, ¶ 12. Once again, this seems to be probable cause—a grand jury’s true bill.

¶ 52 “Clear and convincing” has been in the bond provisions of the Criminal Code for a 

long time as well. For example, an earlier version of section 110-6.1 of the Criminal Code 

provided, “The facts relied on by the court to support a finding that the defendant poses a real and 

present threat to the physical safety of any person or persons shall be supported by clear and 

convincing evidence presented by the State.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, ¶ 110-

6.1(c)(2). Just as we find in the current iteration of section 110-6.1, this language also came after 

the preceding subsection (b) which permitted the court to deny bail only where, after a hearing, it 

was determined that: “(1) the proof is evident or the presumption great that the defendant has 

committed [a non-probationable] offense.” Ill. Rev. Stat. 1989, ch. 38, ¶ 110-6.1((c)(2). 

¶ 53 This only makes sense, logically, as the State previously has had to establish 

probable cause first, before getting to the issue of denying bail. The evidence relevant to the 

commission of the offense might not have been enough, by itself, to establish a basis to deny bail. 

For that reason, the State must present more evidence indicating, not that the offense was 

committed, but that additional facts warranted the denial of bail entirely.

¶ 54 People v. Rodriguez, 2023 IL App (3d) 230450, is a present-day example of the 

kind of analysis necessary when the offense alone may not be detainable. Resisting or obstructing 
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a peace officer was not listed in subsection 6.1(a)(1) through (a)(7). However, subsection 

6.1(a)(1.5) provides pretrial release may be denied if the defendant poses a real and present threat 

and is charged with a forcible felony. The definition of forcible felony includes “any other felony 

which involves the threat of or infliction of great bodily harm or permanent disability or 

disfigurement.” 725 ILCS 5/110-6.1(a)(1.5) (West 2022). The State presented evidence that, when 

defendant drove away during the traffic stop, the officer’s body was partially inside the vehicle—

establishing the threat of great bodily harm. Rodriguez, 2023 IL App (3d) 230450, ¶ 10. The court 

held the State showed the underlying facts which brought the offense within the broader definition 

of “any other felony” and did so by clear and convincing evidence. Rodriguez, 2023 IL App (3d) 

230450, ¶ 10. 

¶ 55 People v. Romero, 2024 IL App (1st) 232023-U, ¶ 35, another Rule 604(h) appeal, 

discussed the State’s burden under section 110-6.1(e) to establish each of the factors listed therein. 

Quoting our supreme court, the Romero court declared “ ‘[e]vidence is clear and convincing if it 

leaves no reasonable doubt in the mind of the trier of fact as to the truth of the proposition in 

question.’ ” Romero, 2024 IL App (1st) 232023, ¶ 35 (quoting Chaudhary v. Department of 

Human Services, 2023 IL 127712, ¶ 74, 216 N.E.3d 124). Further, in Chaudhary our supreme 

court asserted that “proof by a preponderance of the evidence means that the trier of fact must 

believe that it is more likely than not that the evidence establishes the proposition in question.” 

Chaudhary, 2023 IL 127712, ¶ 74. Romero also cited People v. Stock, 2023 IL App (1st) 231753, 

¶ 12, which said, “Clear and convincing evidence is that quantum of proof that leaves no doubt in 

the mind of the fact finder about the truth of the proposition in question.” Romero, 2024 IL App 

(1st) 232023-U, ¶ 35.
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¶ 56 Surely, at a detention hearing, during what is often a defendant’s first appearance, 

the State is not required to establish the commission of the offense, first by probable cause, and 

then again, in the same preliminary proceeding, at the higher level of clear and convincing 

evidence. Instead, a more reasonable reading leads us to conclude the State must establish the 

offense’s detainability at this higher level, as was previously required to hold a defendant without 

bond under earlier versions of section 110-6.1 of the Code. In some instances, it will only require 

identifying the offense from the list provided in the statute. In others, it will require an additional 

proffer of the factors causing it to fall within the category of detainable offenses.

¶ 57 Because I believe we should have addressed this issue, I specially concur.