2024 IL App ( 4 th) 230660-U
NO. 4-23-0660
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff

- Appellee, v. MICHAEL S. SWANSON , Defendant -Appellant. ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Boone County No. 23CF14 Honorable Ryan A. Swift, Judge Presiding.

JUSTICE LANNERD delivered the judgment of the court. Justices Steigmann and Doherty concurred in the judgment. ORDER ¶ 1 Held : The appellate court affirmed, concluding (1) the trial court did not commit plain error in keeping defendant shackled during one pro se pretrial motion hearing and (2) the record does not establish defendant was physically restrained in any way during his pro se bench trial. ¶ 2 Following a June 2023 bench trial, defendant, Michael S. Swanson, was convicte d of one count of violation of an order of protection (720 ILCS 5/12

- 3.4(a)(1) (West 2022)). The trial court sentenced defendant to 30 months’ imprisonment , to be followed by 4 years’ mandatory supervised release (MSR) . Defendant appeals, arguing the court committed plain error when it required him to be shackled during his pro se pretrial motion hearings and pro se bench trial without conducting the requisite hearing to determine whether keeping him shackled on those o ccasions was appropriate. We affirm. ¶ 3 I. BACKGROUND 

## FILED April 16, 2024 Carla Bender 4 th 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).- 2 - ¶ 4 In September 2022, defendant was served with an order of protection issued by the circuit court of Boone County , prohibiting him from having contact with his ex

- girlfriend, A.B. On January 18, 2023, defendant e

- mailed A.B. three times , in violation of the order of protection

. The next day, the State charged defendant with one count of violation of an order of protection (720 ILCS 5/12

- 3.4(a)(1) (West 2022)). The State charged this offense as a Class 4 felo ny since defendant had been convicted the previous year of violation of an order of protection. (720 ILCS 5/12

- 3.4(d) (West 2022)). ¶ 5 A. Defendant’s Pretrial Hearings ¶ 6 Defendant attended numerous pretrial hearing s, beginning with his initial appearance on Fe bruary 1, 2023, when he demanded a speedy trial and stated he intended to hire an attorney. The trial court appointed the public defender to represent defendant in the interim. On May 5, 2023, the court granted the public defender’s motion to withdraw and allowed defendant to proceed pro se . The court and/or public defender stated on the record defendant was “in custody” at each hearing from his initial appearance up to and including the May 26, 2023, status hearing except the March 16, 2023, hearing , at wh ich the public defender informed the court of defendant’s insistence on proceeding pro se . T he only indication defendant was in custody at the June 7, 2023, hearing on his pro se motion to dismiss is the statement on the cover page of the transcript , “D efendant appears in custody pro se .” ¶ 7 The trial court continued the hearing on defendant’s pro se m otion to dismiss to June 16, 2023. On that date, though the court did not state defendant was “ in custody ,” the cover page of the transcript of the hearing reflects he was. After hearing additional argument, the court denied defendant’s m otion to d ismiss.- 3 - ¶ 8 The same day, the trial court held a hearing on defendant’s pro se “ Motion to Suppress Police Report ” and “ Motion to Suppress Search Warrant. ” T he court first denied the

m otion to suppress the p olice r eport. During the hearing on the motion to suppress the search

warrant , the following exchange occurred :

“ THE DEFENDANT: Well, it says that [Belvidere police detective Richard Zapf] found, seized and took possession of ” *** “ certain property and hereby [makes an] inventory of all said property as seized, you know, talking about file types downloaded on a USB flash drive on June 6th, you know , so that’s when he allegedly seized it *** and they got 96 hours to execute it, but then they also have to return whatever they find, you know

— I mean, I don’t have it in front of me because I’m cuffed but— THE COURT: I understand perfectly what you’re saying. I think it’s well taken. I can’t find that Google only has 96 hours to turn that over, though, is my point.” (Emphasis added.) ¶ 9 The trial court then denied defendant’s “ Motion to Suppress Search Warrant .” Thereafter, d efendant demanded a “ [b]ench trial ASAP.” During the colloquy regarding defendant ’s waiv er of his right to a jury trial, the court observed he was “in custody.” The court accepted defendant’s jury waiver as “freely and voluntarily made.” ¶ 10 B. Defendant’s Bench Trial ¶ 11 During defendant’s June 29, 2023, bench trial , defendant appeared in court wearing an orange and white jumpsuit. At the conclusion of the hearing , the trial court reserve d issuing its verdict. The court stated, “[defendant] is obviously in custody so I don’t want to take too much time.”- 4 - ¶ 12 On July 3, 2023, the trial court rendered a verdict of guilty. Although the court did not state defendant was “in custody,” the cover page of the tr anscript of the hearing reflects he

was. ¶ 13 At the beginning of the July 21, 2023, sentencing hearing, the trial court noted defendant appeared “in custody and [was] about to be seated at counsel table.” The court sentenced defendant to 30 months’ imprisonmen t , followed by 4 years’ MSR

. ¶ 14 This appeal followed. ¶ 15 II. ANALYSIS ¶ 16 On appeal, d efendant argues he was denied due process when the trial court kept him shackled during his pro se pretrial hearings and bench trial. Acknowledging he did not preserve this issue for review, defendant asserts the court committed plain error when it did not conduct a hearing pursuant to People v. Boose , 66 Ill. 2d 261, 362 N.E.2d 303 (1977), on the propriety of keeping him shackled on those occasions. The State responds no plain err or occurred because (1) defendant has not provided a record adequate to establish he was shackled during pretrial hearings, (2) even if he was shackled during pretrial hearings, this would not implicate the due process concerns identified by the Illinois Supreme Court in Boose and later codified in Illinois Supreme Court Rule 430 (eff. July 1, 2010) , and (3) the record reflect s he was merely “in custody,” not shackled at trial , and he has not provided a record adequate to establish otherwise. ¶ 17 “To preserve a purported error for consideration by a reviewing court, a defendant must object to the error at trial and raise the error in a posttrial motion. [Citation.] Failure to do either results in forfeiture.” People v. Sebby , 2017 IL 119445, ¶ 48, 89 N .E.3d 675 . However, pursuant to Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967) , “ [p]lain errors or defects- 5 - affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” A n appellate court may revie w a forfeited issue in two circumstances. Those are : “(1) when a ‘clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error,’ or (2) when ‘a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.’ [Citation.]” Sebby , 2017 IL 119445, ¶ 48. ¶ 18 Defendant contends we should review this issue for second

- prong plain error

. “The initial step in conducting plain

- error analysis is to determine whether error occurred at all.” People v. Walker , 232 Ill. 2d 113, 124, 902 N.E.2d 691, 697 (2009). ¶ 19 A. Shackling Criminal Defendants During Trial ¶ 20 1. Boose ¶ 21 In Boose , the Illinois Suprem e Court held : “A defendant may be shackled when there is reason to believe that he may try to escape or that he may pose a threat to the safety of the people in the courtroom or if it is necessary to maintain order during the trial. [Citations.] *** The t rial judge should state for the record his reasons for allowing the defendant to remain shackled, and he should give the defendant’s attorney an opportunity to present reasons why the defendant should not be shackled. These proceedings should take place ou tside the presence of the jury. [Citations.] ” Boose , 66 Ill. 2d at
266.- 6 - ¶ 22 The supreme court then identified a series of factors trial judges should consider in determining whether to keep defendants shackled during trials: “ ‘[T] he seriousness of the present charge against the defendant; defendant’s temperament and character; his age and physical attributes; his past record; past escapes or attempted escapes , and evidence of a present plan to escape; threats to harm others or cause a disturbance; self -destruc tive tendencies; the risk of mob violence or of attempted revenge by others; the possibility of rescue by other offenders still at large; the size and mood of the audience; the nature and physical security of the courtroom; and the adequacy and availabilit y of alternative remedies.’ [Citations.] ” Boose , 66 Ill. 2d at 266 -67. ¶ 23 The supreme court held these principles appl ied to pretrial competency hearings as well as trials

. Boose , 66 Ill. 2d at 268

. The court quoted its decision in People v. Bender , 20 Ill. 2d 45, 47

- 48, 169 N.E.2d 328, 330 (1960) , where it noted the importance of such hearings being conducted without prejudicial error given they are intended to protect a defendant’s constitutional right not to be tried while mentally incompetent. Boose , 66 Ill. 2d at 268-69. ¶ 24 2. In re Staley ¶ 25 In In re Staley , 67 Ill. 2d 33, 364 N.E.2d 72 (1977), the supreme c ourt extended its holding in Boose to the context of a bench trial. While there was no jury trial at issue in Staley , “[t]he possibility of prejudicing a jury *** is not the only reason why courts should not allow the shackling of an accused in the absence of a strong necessity for doing so. The presumption of innocence is central to our administration of criminal justice. *** It jeopardizes the presumption’s value and protection and- 7 - demeans our justice for an accused without clear cause to be required to stand in a courtroom in manacles o r other restraints while he is being judge d. ” Staley , 67 Ill. 2d at 37. The court held , in the absence of a showing of its necessity, “an accused cannot be tried in shackles whether there is to be a bench trial or a trial by jury.” Staley , 67 Ill. 2d at 38

. ¶ 26 3. People v. Allen ¶ 27 In People v. Allen , 222 Ill. 2d 340, 347, 856 N.E.2d 349, 353 (2006), the s upreme
court held “[its] holdings in Boose and Staley regarding shackles apply equally to those defendants who are restrained by means of an electronic stun belt worn under their clothing at trial.” The court required trial courts to apply the Boose standard to the determination of whether “there has been a s howing of manifest need” for defendants to wear such devices during trial

. Allen , 222 Ill. 2d at 347. The court held that “[a] trial court’s failure to follow the procedures set forth in Boose before ordering that defendant continue to wear an electronic stun belt during his trial constitutes a due process violation.” Allen , 222 Ill. 2d at 349 . However, “although the failure to conduct a Boose hearing under these circumstances is an error, defendant’s failure to object and to carry his burden of persuasion amounts to forfeiture of the error, where he cannot establish that it prevented him from obtaining a fair trial.” Allen , 222 Ill. 2d at 353 -54. See People v. Bell , 2020 IL App (4th) 170804, ¶ 127, 145 N.E.3d 740 ( noting the Allen court disagreed with the proposition that restraining a defendant without a Boose hearing automatically constituted plain error and held , instead , “the issue of second

- prong plain error must be considered on a case -by- case basis ”)

. ¶ 28 4. Rule 430- 8 - ¶ 29 The supreme c ourt codified its holdings in Boose and Allen in Illinois Supreme Court Rule 430 (eff. July 1, 2010); People v. Reese , 2017 IL 120011, ¶ 48, 102 N.E.3d 126. In pertinent part, Rule 430 provides :

“ An accused shall not be placed in restraint of any form unless there is a manifest need for restraint to protect the security of the court, the proceedings, or to prevent escape. Persons charged with a criminal offense are presumed innocent until otherwise proven guilty and are entitled to participate in their defense as free persons before the jury or bench. Any deviation from this right shall be based on evidence specifically considered by the trial court on a case -by- case basis. The determination of whet her to impose a physical restraint shall be limited to trial proceedings in which the defendant’s innocence or guilt is to be determined, and does not apply to bond hearings or other instances where the defendant may be required to appear before the court prior to a trial being commenced. ” Ill. S. Ct. R. 430 (eff. July 1, 2010). ¶ 30 B. Defendant ’s Pretrial Hearings ¶ 31 This court has observed that while Rule 430 is a codification of the holdings in
Boose and Allen , it is not a precise replication

. We have noted “w hile the supreme court stated in its comments to Rule 430 *** the rule codified Boose and Allen (Ill. S. Ct. R. 430, Commentary (adopted Mar. 22, 2010)) , a conflict exists with the Boose finding its determination applied to pretrial competency hearings and the language of the rule.” People v. Kelley , 2013 IL App (4th) 110874, ¶ 19, 986 N.E.2d 770. ¶ 32 W hile the record reflects defendant appeared “in custody” at various pretrial hearings, it also only establishes he was physically restrained for one hearing on his various- 9 - pretrial motions. As the supreme court stated in Boose , the requirements a trial court must satisfy before allowing a defendant to be shackled during trial apply as well to pretrial competency hearings because of the fundamental due process concerns in herent in determining if a defendant is mentally competent before subjecting him to trial

. Boose , 66 Ill. 2d at 268 -69 (quoting Bender , 20 Ill. 2d at 47 -48). However, the pretrial hea ring on defendant’s motions to suppress was not such a hearing

. Citing the Third District’s decision in People v. Rippatoe , 408 Ill. App. 3d 1061, 945 N.E.2d 132 (2011), defendant argues the Boose req uirements should apply to “a substantive pretrial hearing , ” such as the one at issue here. T he Third District read Boose and Allen as holding “ it is error for a court to order or permit a defendant to be shackled at any point in a criminal proceeding unless the court has conducted a hearing in which it determines a manifest need for such restraints.” (Emphasis added.) Rippatoe , 408 Ill. App. 3d at 1066 -67. However, this court disagreed with the Rippatoe court’s interpretation of Boose and Allen , noting both decisions “addressed the use of restraints in the presence o f a jury but did not discuss the use of restraints at all criminal proceedings.” (Emphasis added .) Kelley , 2013 IL App (4th) 110874 , ¶ 21. ¶ 33 Moreover, the s upreme c ourt expressly restricted the application of Rule 430 to “trial proceedings in which the defendant’s innocence or guilt is to be determined ” and separately excluded “bond hearings or other instances where the defendant may be required to appear before the court prior to a trial being commenced” from its application. Ill. S. Ct. R. 430 (eff. Ja n. 1, 2010). “W here the language [of an Illinois Supreme Court rule ] is plain and unambiguous, we may not add provisions not contained therein or read exceptions or limitations into the rule that conflict with the drafters’ expressed intent.” In re H.L. , 2 015 IL 11 8529, ¶ 6, 48 N.E.3d 1071.- 10 - ¶ 34 Here, under the express language of Rule 430, t he pretrial motion hearing where defendant was shackled was not a “ trial proceeding[ ] in which [his] innocence or guilt [was] to be determined” but is, instead, one of those “other instances where [he was] required to appear before the court prior to a trial being commenced” to which the requirements of Rule 430 do not apply. Ill. S. Ct. R. 430 (eff. Jan. 1, 2010). Accordingly, we conclude the trial court did not err in allowing defendant to be physically restrained during the pretrial hearing at issue without first holding a hearing to determine its necessity. As the court did not err, th ere can be no plain error . People v. Johnson , 218 Ill. 2d 125, 139, 842 N.E.2d 714, 722 (2005)

. ¶ 35 C. Defendant ’s Bench Trial ¶ 36 D efendant argues his shackl ing at his bench trial can be established by

“ reasonable inferences” from the record. D efendant refers to points during the bench trial where he was assisted by the bailiff with handling exhibits to “strongly indicate[ ] that he was shackled .” Specifically, d efendant refere nces three instances where the trial court invited him to hand an exh ibit to the bailiff

. First : “THE DEFENDANT: Your Honor, am I able to have him read Lines 7 through 12 from his police report for the Court? THE COURT: Sure. Yeah, if you want to approach? Or have

— why don’t you give that to my bailiff, have him approach.” Second :

“ THE DEFENDANT: Can the defense ask the Court — THE COURT:

— want to hand that to my bailiff to provide to the officer? ” Third and finally :- 11 - “THE DEFENDANT: Okay. So this is going to be Defendant’s Exhibit
No. 15. THE COURT: 15?
THE DEFEN DANT: Yes. THE COURT: Okay. And then if you want to hand that to my bailiff to hand to the officer.” ¶ 37 However, t he foregoing examples illustrate only that defendant was assisted by the bailiff in his presentation of exhibits during his bench trial

. Nowhere in the record do we find
any evidence that could be reasonably construed as implying defendant was shackled during trial

. “On appeal, it is generally the appellant’s burden to provide the reviewing court with a sufficient record to establish the er ror that he complains of.” Doe v. Readey , 2023 IL App (1st) 230867, ¶ 36. “[A] reviewing court cannot look beyond the record and speculate on what may have occurred in the trial court. A court of review is limited to the record before it.” Webster v.
Hartman , 195 Ill. 2d 426, 436, 749 N.E.2d 958, 964 (2001). While the record reflects defendant was ( 1) “in custody,” ( 2) wearing an orange and white jumpsuit, and ( 3) assisted by the bailiff, these facts do not establish he was physically restrained. To conclude defendant was shackled during trial on this record would require us to engage in speculation beyond the record, which we

w ill not do. ¶ 38 Accordingly , d efendant has not met his burden of demonstrating error by the trial

court. See People v. Naylor , 229 Ill. 2d 584 , 5 93, 893 N.E.2d 653 , 659-60 (2008) (“When a defendant fails to establish plain error , the result is that the ‘ procedural default must be honored.’ ”)

. ¶ 39 III. CONCLUSION- 12 - ¶ 40 For the reasons stated, we affirm the trial court ’ s judgment. ¶ 41 Affirmed.