2024 IL App (1st) 1997-U

No. 1-23-1997B 

Order filed January 4, 2024 

Sixth Division

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).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee, 

 v. 

VINCENT BERRY, 

Defendant-Appellant. 

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Appeal from the

Circuit Court of

Cook County. 

No. 23 DV 7525501 

Honorable 

Thomas Nowinski, 

Judge, Presiding. 

PRESIDING JUSTICE ODEN JOHNSON delivered the judgment of the court.

Justices Hyman and C.A. Walker concurred in the judgment. 

ORDER

¶ 1 Held: Trial court’s denial of defendant’s pretrial release was an abuse of discretion and 

its finding that less restrictive conditions would avoid the threat to any persons or 

the community was against the manifest weight of the evidence where the trial court 

did not consider any alternatives to detention. Order reversed and remanded for 

consideration of detention alternatives. 

¶ 2 Defendant-appellant Vincent Berry, by and through his attorney, brings this appeal under 

Illinois Supreme Court Rule 604(h) (eff. Sept. 18, 2023) challenging the circuit court’s order 
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entered on October 13, 2023, pursuant to, what is commonly known as the Pretrial Fairness Act.1

The circuit court’s order denied pretrial release after defendant was charged with aggravated 

battery with a deadly weapon (class X felony) and aggravated domestic battery (class 2 felony). 

Appellant filed a notice in lieu of a Rule 604h memorandum and the State filed a memorandum in 

response. For the following reasons, we reverse and remand. 

¶ 3 BACKGROUND

¶ 4 A summary of the relevant evidence proffered by the State during the hearing on the State’s 

Petition for Detention is as follows: Defendant and the complaining witness were previously in a 

dating relationship. Although the dating relationship had ended, they continued to live together. 

On or about October 10, 2023, defendant and the complaining witness began to argue. At some 

point during the argument, defendant pointed a firearm at the witness and reportedly threatened to 

shoot her. According to the complaining witness, defendant had never threatened her with a gun 

before. Thereafter, the complaining witness heard three to four gunshots and then realized she was 

shot in the arm and stomach. Defendant reportedly pointed the gun to his head and then back at 

her. He next took the witness’ phone and keys, picked up shell casings, and put the gun in a bag. 

The complaining witness went across the street and told people to call 911. Defendant then 

approached the complaining witness and gave her both her phone and his. When another witness 

asked the complaining witness who the person was that brought the phones, she replied “that’s 

who did it.” A police sergeant reviewed video footage on a neighbor’s phone and observed a person 

1 In 2021, the General Assembly passed two separate acts that “dismantled and rebuilt 

Illinois’s statutory framework for the pretrial release of criminal defendants.” Rowe v. Raoul, 2023 IL 

129248, ¶4 (discussing Pub. Act 101-652, § 10-255, 102-1104, § 70 (eff. Jan. 1, 2023) (amending 725 

ILCS 5/art. 110) (the Pretrial Fairness Act) and Pub. Act 102-1104 (eff. Jan. 1, 2023) (the Follow-Up 

Act). 
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walk down the alleyway past the neighbor’s garage with a dark colored duffel bag. The sergeant 

conducted a search of the alleyway and located the dark duffel bag. The complaining witness was 

subsequently transported to the hospital and had emergency surgery.

¶ 5 The defendant made a statement to officers implying that he and the complaining witness 

“got into it,” were wrestling with the gun, and the gun accidentally went off. The defense proffered 

that defendant grabbed the keys and phones in preparation to take the complaining witness to the 

hospital. While he was preparing to get the vehicle, the complaining witness went across the street 

and asked the neighbors to call 911. 

¶ 6 The mitigating factors presented at the hearing were that defendant was 51 years old and a 

lifelong resident of Chicago, Illinois. He graduated from high school, and although he took some 

classes to become an electrician, he worked for United Parcel Service for 21 years. He also 

volunteered at Renaissance Senior Home in his neighborhood. Defendant did not have a history of 

violent crimes. His background only consisted of a 2001 felony manufacturing delivery of a 

controlled substance, for which he completed 24 months’ probation. The pretrial officer reported 

that defendant had a new criminal activity score of two, a failure to appear score of three, and PSA 

score that coincided with pretrial supervision level one.

¶ 7 Based thereon, and “in consideration of the factors in determining dangerousness as set 

forth in the statute, specifically 725 ILCS 5/110-6.1(g)”, the circuit court found defendant to be a 

danger to the victim as well as the community. The court specifically noted the complaining 

witness’ multiple gunshot wounds, which were inconsistent with the defendant’s contention that 

the gun accidentally discharged during a tussle. The court also considered the complaining 

witness’ physical condition, which required her to have emergency surgery. Accordingly, the court 
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found that the State had “proven by clear and convincing evidence that the proof was evident and 

the presumption great that defendant had committed the offenses of aggravated domestic battery 

and aggravated battery with a firearm, which are qualifying offenses: and, that defendant poses a 

real and present threat to the safety of any person or community based on the articulable facts in 

the record.”

¶ 8 The record reveals that the court did not specify whether no condition or combination of 

conditions of pretrial release can mitigate the real and present threat, and no less restrictive 

conditions would avoid a real and present threat posed by the defendant. The court nonetheless 

ordered that the defendant be detained and remanded to the custody of the Cook County Sheriff 

pending trial. 

¶ 9 Defendant’s appeal was timely filed within 14 days, thereby conferring jurisdiction upon 

this court. In considering this appeal, we have reviewed the following documents that were 

submitted pursuant to Rule 604(h): defendant’s Notice of Pretrial Fairness Act Appeal in lieu of 

supporting memorandum, and the State’s memorandum in response.

¶ 10 ANALYSIS

¶ 11 On appeal, defendant rests on his Notice in Lieu of Rule 604h memorandum. Defendant 

does not contest that the State met its burden of proving by clear and convincing evidence that the 

proof is evident and presumption great that the defendant committed a qualifying offense or that 

the charges are detainable under 725 ILCS 5/110-6.1 (West 2022). Instead, defendant challenges 

whether the State met its burden of proving by clear and convincing evidence that he poses a real 

and present threat to the safety of any person, or the community based on the facts of the case and 
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further contends that the State failed to show that no condition or combination of conditions could 

mitigate the real and present threat to the safety of any person or the community.

¶ 12 The State responds that, given the nature of this crime and the manner in which it was 

committed, the trial court’s conclusion that defendant was a danger to the community was not 

arbitrary, fanciful, or unreasonable. Defendant committed an extremely violent crime and “thus 

there is every reason to believe defendant has access to a firearm and he certainly has the 

inclination to use one.” The State relies on Whitmore which stated, “decisions regarding release, 

conditions of release, and detention prior to trial must be individualized, and no single factor or 

standard may be used exclusively to order detention.” People v. Whitmore, 2023 IL App (1st) 

231807B, ¶18. “Nothing in the Act authorizes a reviewing court to reweigh the factors at play.” 

Id. 

¶ 13 Defendant has limited his appeal to challenging the trial court’s finding that less restrictive 

conditions would not avoid a real and present threat to the safety of any person or the community 

and or prevent the defendant’s willful flight from prosecution. Therefore, for the sake of court 

efficiency, we will only address that issue. 

¶ 14 Pretrial release is governed by Article 110 of the Code of Criminal Procedure of 1963 

(Code) (725 ILCS 5/110-1 et seq (West 2022)). Under the Code, all persons charged with an 

offense are eligible for pretrial release before conviction. 725 ILCS 5/110-2(a) (West 2022). 

¶ 15 Pursuant to the Code, a defendant’s pretrial release may be denied only in certain statutorily 

limited situations. 725 ILCS 5/110-6.1 (West 2022). Upon the State’s filing of a 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 the defendant has committed a 
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qualifying offense, that the defendant’s pretrial release poses a real and present threat to the safety 

of any person or the community or a flight risk, and that less restrictive conditions would not avoid 

a real and present threat to the safety of any person or the community and or prevent the 

defendant’s willful flight from prosecution. 725 ILCS 5/110-2; 5/110-6.1(a)(1.5), (4), (8) (West 

2022). At all pretrial hearings, the prosecution has the burden of proving by clear and convincing 

evidence that any condition of release is necessary. 725 ILCS 5/110-2(b) (West 2022). In any order 

for detention, the court shall make a written finding summarizing the court’s reasons for 

concluding that the defendant should be denied pretrial release, including why less restrictive 

conditions would not avoid 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, or prevent the defendant’s willful 

flight from prosecution. 725 ILCS 5/110-6.1(h)(1) (West 2022).

¶ 16 The trial court’s determination regarding the dangerousness and or conditions of release 

are reviewed for an abuse of discretion. People v. Simmons, 2019 IL App (1st) 191253, ¶¶ 9, 15; 

People v. Vingara, 2023 IL App (5th) 230698, ¶ 10. An abuse of discretion occurs when the 

decision of the trial court is arbitrary, fanciful, or unreasonable, or when no reasonable person 

would agree with the position adopted by the trial court. Simmons, 2019 IL App (1st) 191253, ¶ 

9; Vingara, 2023 IL App (5th) 230698, ¶ 10. 

¶ 17 A circuit court’s finding that the State presented clear and convincing evidence that 

mandatory conditions of release would fail to protect any person or the community, and/or that the 

defendant had a high likelihood of willful flight to avoid prosecution, or that the defendant failed 

to comply with previous conditions of pretrial release thereby requiring a modification or 

revocation of the previously issued conditions of pretrial release, will not be reversed unless those 
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findings are against the manifest weight of the evidence. Vingara, 2023 IL App (5th) 230698, ¶ 

10. “A finding is against the manifest weight of the evidence only if the opposite conclusion is 

clearly evident or if the finding itself is unreasonable, arbitrary, or not based on the evidence 

presented.” People v. Deleon, 227 Ill.2d 322, 332 (2008). Under this standard, we give deference 

to the trial court as the finder of fact as it is in the best position to observe the conduct and demeanor 

of the witnesses.” Deleon, 227 Ill. 2d at 332.

¶ 18 In the case at bar, upon consideration of the specific articulable facts of the case and the 

record of the detention hearing, we are hard pressed to find that no condition or combination of 

conditions can mitigate the real and present threat to the safety of any person or persons or the 

community. The complaining witness was someone that defendant lived with and previously 

dated. She had never known him to threaten her previously and did not have a history of violence. 

While the trial court did consider the factors regarding the dangerousness, the court did not 

specifically consider the alternatives to detention, as required by the Code. While we are careful 

not to substitute our judgment for the trial court, when there is no consideration given in the record, 

we cannot say that the trial court’s finding was not against the manifest weight of the evidence. 

¶ 19 As there is no evidence in the record that the trial court considered any alternatives to 

defendant’s detention, we conclude that its order denying pretrial release was an abuse of 

discretion and remand for consideration of defendant’s detention alternatives. 

¶ 20 CONCLUSION

¶ 21 For the foregoing reasons, we reverse the order of the Circuit Court of County requiring 

defendant’s pretrial detention entered on October 15, 2023, and remand for further proceedings 

consistent with this order.
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¶ 22 Reversed and remanded.