2024 IL App (2d) 240057-U No. 2 -24-0057 O rder filed April 5, 2024 NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)( 1 ).

______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS
SECOND DISTRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff

- Appellee, ) ) v. ) No. 23- CF -0193 ) LARRY MCGEE, IV , ) Honorable ) Salvat ore LoPiccolo , Jr. , Defendant -Appellant. ) Judge, Presiding.

______________________________________________________________________________ JUSTICE JORGENSEN delivered the judgment of the court. Presiding Justice McLaren and Justice Mullen concurred in the judgment. O RDER ¶ 1 Held : Trial court ’s order detaining defendant lacks adequate findings regarding dangerousness . Further, the court erred in determining that the State met its burden to establish that less

- restrictive conditions could not mitigate the alleged real and present threat defendant possessed . Affirmed in part, reversed in part, and remanded

. ¶ 2 In this interlocutory appeal under Illinois Supreme Court Rule 604(h) (eff. Oct. 19, 2023) , defendant, Larry McGee, IV , timely appeals the order of the circuit court of Kane County granting the State’s petition to detain him pursuant to Public Act s 101- 652, § 10- 255 (eff. Jan. 1, 2023),2024 IL App (2d) 240057-U

- 2 - commonly known as the Pretrial Fairness Act (Act). 1 See also Pub. Act 102

- 1104, § 70 (eff. Jan. 1, 2023) (amending various provisions of the Act); Rowe v. Raoul , 2023 IL 129248, ¶ 52 (lifting stay and setting effective date as September 18, 2023) . F or the following reasons, we affirm in part, reverse in part, and remand the case

. ¶ 3 I. BACKGROUND ¶ 4 According to the report of proceedings, on May 5, 2023, a grand jury returned an indictment charging defendant with nine counts of predatory criminal sexual assault of a victim under 13 years of age ( 720 ILCS 5/11 -1 .40(a)(1) (West 2022) ) (Class X) and three counts of attempt child pornography ( id. § 11-20.1(a)(1)) (Class 1). 2 The offenses were alleged to have been committed between January 1, 2017, and December 31, 2020, at victim C.S.’s mother’s house in Elgin. ¶ 5 On January 9, 2024, the State filed a verified petition to deny pretrial release, alleging that defendant was charged with detainable offenses and his release posed a real and present threat to the safety of C.S. and the community. The State attached to the petition a police synopsis reflecting that , on November 9, 2022, C.S.’s father filed a police report stating defendant had sexually assaulted C.S. while she was in his care at her mother’s house. C.S. was between ages 8 and 11 when the alleged assaults occurred, some of which she alleged defendant had recorded

1 The Act is also commonly known as the Safety, Accountability, Fairness and Equity

Today (SAFE

- T) Act. Neither name is official, as neither appears in the Illinois Compiled Statutes or public acts.

2 The indictment is not contained in the record on appeal, although a January 26, 2023, arrest warrant is included.2024 IL App (2d) 240057-U

- 3 - using his cell phone . C.S. was age 14 when the police synopsis was prepared. On November 17, 2022, C.S. was interviewed at the Kane County Child Advocacy Center (CAC) , at which time she related that defendant had touched her beneath her underwear, put her hand on top of his private parts over his clothes, an d had penetrated her vagina and anus both digitally and with his penis. ¶ 6 The public safety assessment report scored defendant as a one on both the new

- criminal

activity and failure

- to

- appear scales. Defendant ha s no prior convictions. ¶ 7 On January 9, 2024, the court held a hearing on the State’s motion. The State entered into evidence the police synopsis and CAC report, arguing that those documents proved by clear and convincing evidence that the proof was evident and presumption great that defendant committ ed the alleged offenses. The State acknowledged that defendant has no criminal history , as well as that at least two years had passed since the last reported incident. However, it argued that he was

a real and present threat to C.S. and anyone in the com munity because he was accused of sexually assaulting a minor between ages 8 and 11 and taking advantage of her while he was living in her mother ’s household. “The fact that he also had easy a ccess to her none the less does pose a threat not just to her but to all of the other minor childre n[.] ” T he State did not believe that release conditions could mitigate the real and present threat to the safety of C.S., her family, or the general public. ¶ 8 Defense counsel noted that, since 2020, defendant has been living in Cook County (specifically, Roselle ) with his sister. No minors live in that residence. Counsel further noted that defendant has no criminal history and, outside of this case, there was no evidence presented that he has ever been investigated or accused of inappropriate conduct. Moreover, the State presented no evidence that defendant had any contact with C.S. or her family after he moved in
2020 . A s such, counsel argued that defendant does not pose a threat to C.S., as he has had no2024 IL App (2d) 240057-U

- 4 - contact with her or her family since 2020 and no longer lives near her. Further, counsel argued, defendant is no risk to anyone else because he has no criminal history and no children live in his
current r esidence. Finally, counsel noted that defendant is unable to work due to his severe health problems, including chronic kidney and heart failure, and he sees a doctor and receives dialysis four times weekly . As his poor health prevent s him from doing many things in life, it can also presumably mitigate against any risk he might pose to another individual. Finally, counsel argued, conditions of release , such as no- contact orders and placing him on supervision or terms with court services that require him to check in with them, could mitigate any perceived risk. “There is no indication from his previous behavior that he would violate any of those conditions.” ¶ 9 T he court granted the State’s petition, finding it met its burden of proof that defendant committed detainable offenses and was a threat to C.S. and other minors in the community. As to dangerousness, the court explained,

“ This Court also finds that the State has proven by clear and convincing evidence that the proof is evident and presumption great that the defendant poses a real and present threat to the safety still of the minor C .S

. She is 14 years old currently

. And that he would also pose a real and present threat to any minor that would be under the age of 17 or any minor under the age of 18 that would be in the community at this stage and I base that

on the facts that were alleged by C.S

. in her statements to the police. ” (Emphasis added.) In its written findings, the court noted that C.S. could not, at age 14, protect herself from defendant, and that the acts she described and for which he has been charged are forcible felonies. It noted that C.S. and other minors in the community need to be protected from the alleged conduct. “Based on the conduct of the defendant on C.S ., the defendant poses a real and present threat to C.S. and all minors under the age of 18 years of age.” (Emphasis added.)2024 IL App (2d) 240057-U

- 5 - ¶ 10 Further, the court found that no conditions of release cou ld mitigate the risk . It acknowledged that defendant has serious health problems, does not live with minors, has no criminal history , and presently lives in Cook County. However, the fact that defendant lives in Cook County, the court found, “takes away one of the options that I would have of placing him on EHM or GPS because the sheriff ’ s program for EHM [electronic home monitoring] and GPS is not available to people who live in Cook County.” The court continued, “So based on the fact that I do not have [EHM] or GPS available to me at this time, I am going to make a finding that there is clear and convincing evidence that the proof is evident and presumption is great that at this time there are no conditions or combination of conditions of pretrial relea se that can mitigate the real and present threat posed by the defendant to the minor C .S. and that there are no less restrictive conditions that would avoid the real and present threat posed by the defendant at this time.”
In its written findings, the court noted that no less

- restrictive conditions could protect C.S. and minors in the communit y because defendant lives in Cook Count y and, therefore, EHM and GPS are not available from Kane County. Further, conditions of no contact with C.S. or other minors under age 18 will not by themselves assure the safety of C.S. or any minor. Finally, the court ordered that defendant have no contact with C.S. or her parents. ¶ 11 On January 16, 202 4 , defendant filed a notice of appeal, using the form notice promulgated under Illinois Supreme Court Rule 606(d) (eff. Oct. 19, 2023). On March 6, 2024, defendant
fi led a Rule 604(h) memorandum. Ill. S. Ct. R. 604(h)(2) (eff. Dec. 7 , 2023)

. On March 25, 2024, the State submitted its memorandum opposing defendant’s appeal. ¶ 12 II. ANALYSIS2024 IL App (2d) 240057-U

- 6 - ¶ 13 In his memorandum, defendant argues first that the State failed to meet its burden to establish that his pretrial release would pose a real and present threat to the safety of any person or persons or the community. 725 ILCS 5/110

- 6.1(a)(1)

- (7), (e)(2) (West 2022). Second, defendant argues that the State failed to meet its burden to establish by clear and convincing evidence that no condition or combination of conditions can mitigate the real and present threat to the safety of any person or persons, based on the specific, articulable facts of the case. Id. § 110

- 6.1(e)(3). ¶ 14 Pretrial release is governed by article 110 of the Code, as amended by the Act. 725 ILCS 5/110 (West 2022). Under the Code, as amended, all persons charged with an offense are eligible for pretrial release , and a defen dant’ s pretrial release may only be denied in certain statutorily limited situations

. Id. §§ 110- 2(a), 110 -6.1(e) . As relevant here, u pon filing a verified petition requesting denial of pretrial release, the State has the burden to prove by clear and con vincing evidence that the proof is evident or the presumption great that the defendant has committed a detainable offense ( id. § 110- 6.1(e)(1)), that the defendant ’ s pretrial release poses a real and present threat to the safety of any person or the commun ity ( id. §§ 110-6.1(a)(1)- (7), (e)(2)) , and that no condition or combination of conditions can mitigate the real and present threat to the safety of any person or the community ( id. § 110- 6.1(e)(3)). “Evidence 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.” Chaudhary v. Department of Human Services , 2023 IL 127712, ¶ 74. Clear and convincing evidence is “more than a preponderance of the evidence and not quite approaching the beyond -areasonable

- doubt standard necessary to convict a person of a criminal offense.” People v. Craig , 403 Ill. App. 3d 762, 768 (2010).2024 IL App (2d) 240057-U

- 7 - ¶ 15 We review defendant’s arguments under a bifurcated standard of review: the court’s factual determinations are reviewed to determine whether they are against the manifest weight of the evidence, and the court’s ultimate determination regarding denial of pre trial release is reviewed for an abuse of discretion. People v. Trottier , 2023 IL App (2d) 230317, ¶ 13. An abuse of discretion occurs when the court’s decision is unreasonable. Id. L ikewise, a decision is against the manifest weight of the evidence where the court’s determination is unreasonable. People v. Deleon , 227 Ill. 2d 322, 332 (2008). ¶ 16 We address first defendant’s argument the court erred in finding that the State met its burden of establishing that he is a real and present threat to the safety of any person or the community. He notes that, under the Code, as amended, it is presumed that a defendant is entitled to release , and the State must rebut that presumption with more than just the allegations that form the basis of the charges, for he al so remains presumed innocent of those charges. “Indeed, the legislature plainly did not believe that the mere accusation of a detainable offense meant that a defendant posed a real and present danger that could not be mitigated.” Here, he contends , in

ar guing that he posed a threat to C.S. and all minors in Illinois, the State simply relied on the facts supporting the charges. Defendant suggests that the reason the State did not present more is because the record does not demonstrate that he poses a threat to anyone . Rather, he (1) has no criminal history; (2) has had no contact with C.S. since 2020; (3) does not live in Elgin, and, rather, lives with his sister and no minors in Roselle; (4) has never been accused of any other inappropriate contact with a minor; and (5) the public safety assessment report scored him as the lowes t level of risk on both the failure

- to

- appea r and new

- criminal

- activity scales. Finally, defendant notes his severe health problems requiring dialysis treatments four times per week undermines the State’s contention that he poses a present threat to anyone. Defendant concludes that the court’s2024 IL App (2d) 240057-U

- 8 - determinatio n that he poses a real and present threat to anyone’s safety is against the manifest weight of the evidence. ¶ 17 Defendant is correct that the inherent danger presented by the charges themselves is insufficient to rebut the presumption of pretrial release. Indeed, in enacting the Act, “ [o]ur legislature has mandated that all criminal defendants are eligible for pretrial release.” (Emphasis added.) People v. Stock , 2023 IL App (1st) 231753, ¶ 18 (citing 725 ILCS 5/110

- 6.1(e) (West 2022)). Even those charged with violent offenses are pr esumed eligible for release and , if “the base allegations that make up the sine qua non of a violent offense were sufficient on their own to establish this element, then the legislature would have simply deemed those accused of violent offense ineligible f or release.” Id . ¶ 18. Here, the State asserts that the court did not base its dangerousness determination solely on the fact of the underlying offense, it thoroughly explained its reasons for finding defendant a threat, and it specifically rejected defe nse counsel’s arguments regarding defendant’s health and residency. We disagree. The court repeatedly referenced C.S.’s allegations, for which defendant was charged, as the basis for its dangerousness finding. And while the allegations against defendant are very serious, the court did not explain how, outside of the allegations that form ed the basis of the charges, defendant is a real and present threat to the safety of C.S. or other minors, nor , critically, did it explain how that risk of dangerousness is not offset by the record evidence , which the State did not dispute, concerning his lack of criminal history, low ratings on the public assessment report, current living arrangement (both in terms of locale and without access to minors), an d that he has had no contact with C.S. in four years. 3

3 The State cites People v. Johnson , 2023 IL App (5th) 230714, ¶ 21, for the proposition that it need not “prove” defendant will commit a future violent act to establish dangerousness.2024 IL App (2d) 240057-U

- 9 - Accordingly, at this juncture, the findings made by the trial court with respect to whether defendant poses a “real and present threat” are insufficiently particularized for proper review , and we rem and for a new detention hearing and, if necessary, specific findings regarding dangerousness. ¶ 18 Next, in the interest of efficiency, we also address defendant’s argument that the court erred in finding that the State satisfied its burden to show that no conditions short of detention could mitigate defendant’s perceived risk to C.S. or minors in the community. Indeed, if the court on remand again finds that the State has presented sufficient evidence establishing a real and present threat, the State must then also provide evidence to meet its burden to show that there is no condition or combination of conditions to mitigate that perceived danger. The Code , as amended, instructs that, in determining whether a specific threat could be mitigated through the imposition of conditions of pretrial release, the trial court is to consider various factors, including , (1) the nature and circumstances of the offense charged, (2) t he weight of the evidence against the defendant, (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 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

We agree, generally, but would note that, defendant does not raise such an argument here and, further, court in Johnson affirmed the dangerousness finding where the trial court had “ made written findings that included its consideration of the defendant ’ s six prior prison sentences

. Three were for violent felonies, and one was for being a felon in possession of a firearm. The circuit court made further written findings about the danger that the defendant ’ s actions posed to the community .” Id. In contrast, here, defendant has no criminal history and the court’s basis for finding a real and present threat is unclear.2024 IL App (2d) 240057-U

- 10 - obstruct the criminal justice process. 725 ILCS 5/110

- 5(a)(1)

- (5) (West 2022)

. The history and characteristics of the defendant include his or her “character, physical and me ntal condition, family ties, employment, financial resources, length of residence in the community, community ties, past relating to drug or alcohol abuse, conduct, *** criminal history , and record concerning appearance at court proceedings

. ” (Emphasis ad ded.) Id . § 110- 5(a)(3)(A)

- (B). ¶ 19 Here, t he State did not make any argument concerning possible conditions of release ; rather, it broadly asserted that, given the nature of the charges, there are no conditions that could mitigate the risk. Again, t his is i nsufficient

. Stock , 2023 IL App (1st) 231753, ¶ 18 (“bare allegations that defendant has committed a violent offense are not sufficient to establish” he presents a risk that cannot be mitigated). Defense counsel, in contrast , suggested specific conditions, including no

- contact orders, supervision, and requirements that defendant maintain contact with pretrial services to ensure he follow s the court’s orders. However, in finding that defendant must be detained, the court did not explain why , give n the evidence concerning defendant’s health, current living situation, lack of criminal history, and the presumption that defendants are eligible for release with conditions, none of defendant’s proffered conditions would suffice. For example, the court did not find, nor does the record presently reflect, that there is evidence that defendant would not likely comply with less

- restrictive conditions. Further, the court’s findings suggest that it would consider EHM and GPS (again, a condition raised by the
court sua sponte , as the State did not raise it or explain why that condition would not mitigate defendant’s alleged risk), but that type of monitoring is unavailable, due to defendant’s residency in Cook County. However, the court’s finding that EHM and GPS are unavailable was not based on any evidence presented by the State

. Moreover, if the court was taking judicial notice of court resources, it did not so articulate. Indeed, if there exists evidence that there is a mechanism by2024 IL App (2d) 240057-U

- 11 - which the court or pr etrial services can, in fact, monitor defendant’s movements , that evidence would seemingly be particularly r elevant under the se facts . As such, the court’s finding that the State met its burden to establish that no condition or combinations of conditions could mitigate the possible threat was not supported by the evidence. ¶ 20 We r everse and remand for a new hearing on the petition for denial of release . I f the court again finds that the State has presented clear and convincing e vidence ( i.e. , leav ing no reasonable doubt in the court’s mind ( Chaudhary , 2023 IL 127712, ¶ 74) ) of both dangerousness and that no condition or combination of conditions can mitigate that risk , mo re particularized findings on both factors are required

. ¶ 21 III. CONCLUSION ¶ 22 For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed in part, reverse d in part, and remand ed for a hearing

. ¶ 23 Affirmed in part, reversed in part; cause remanded

.