2023 IL App (5th) 230855-U
NOTICE
NOTICE
Decision filed 12/07/23. The
This order was filed under
text of this decision may be NO. 5-23-0855
Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for IN THE limited circumstances allowed
Rehearing or the disposition of
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Vermilion County.
)
v. ) No. 23-CF-612
)
DAVID B. LEWIS, ) Honorable
) Charles C. Hall,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court.
Justices Cates and Barberis concurred in the judgment.
ORDER
¶1 Held: The circuit court’s order detaining the defendant was not an abuse of discretion
where the trial court’s determinations were not unreasonable or arbitrary.
¶2 The defendant, David B. Lewis, appeals the circuit court of Vermilion County’s October
5, 2023, order regarding the defendant’s pretrial release pursuant to Public Act 101-642 (eff. Jan.
1, 2023), commonly known as the Safety, Accountability, Fairness and Equity-Today (SAFE-T)
Act (Act). 1 See Pub. Acts 101-652, § 10-255, 102-1104, § 70 (eff. Jan. 1, 2023); Rowe v. Raoul,
2023 IL 129248, ¶ 52 (lifting stay and setting effective date as September 18, 2023).
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The Act has been sometimes referred to as the “SAFE-T Act” or the “Pretrial Fairness Act.”
Neither name is official, as neither appears in the Illinois Compiled Statutes or the public act. See Rowe v.
Raoul, 2023 IL 129248, ¶ 4 n.1.
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¶3 I. BACKGROUND
¶4 The defendant is a convicted felon with convictions that include drug trafficking, mob
action, aggravated battery, and unlawful transport of firearms. On October 2, 2023, police
responded to a report of a gunshot-like noise and subsequent bullet hole in the reporters’ residence
wall. Shortly thereafter, the defendant, who was the residents’ neighbor, apologized to the residents
and stated that he had been cleaning a gun when it accidentally discharged and shot a hole through
their walls. Defendant also indicated that he had cut his hand on the gun. Defendant’s neighbors
saw the cut, and the gun had blood on it. The gun was also reported as stolen.
¶5 On October 3, 2023, the defendant was charged by information with four felony counts.
Count I alleged unlawful possession of a weapon by a felon convicted of a forcible felony in
violation of section 24-1.1(a) of the Criminal Code of 2012 (Code) (720 ILCS 5/24-1.1(a) (West
2022)), a Class 2 felony. Count II alleged unlawful possession of a weapon by a felon convicted
of a felony under the Illinois Controlled Substances Act in violation of section 24-1.1(a) of the
Code (id.), a Class 2 felony. Count III alleged unlawful possession of a weapon by a felon in
violation of 24-1.1(a) of the Code (id.), a Class 3 felony. Count IV alleged reckless discharge of a
firearm in violation of section 24-1.5(a) of the Code (id. § 24-1.5(a)), a Class 4 felony. That same
day, the State filed a verified petition seeking to deny pretrial release. The State alleged that
defendant was charged with a qualifying offense, that he posed a real and present threat to the
safety of persons or the community, and that no condition or combination of conditions could
mitigate the real and present threat to the safety of persons or the community.
¶6 On October 5, 2023, the circuit court held a pretrial detention hearing wherein, after
considering the State’s proffer and the arguments of counsel, the circuit court entered a written
order of detention. In the order, the circuit court found by clear and convincing evidence that
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(1) the proof was evident or the presumption great that defendant had committed a qualifying
offense; (2) defendant posed a real and present threat to the safety of any person or persons in the
community, based upon the specific articulable facts of the case; and (3) no conditions could
mitigate the real and present threat to safety. Specifically, the circuit court found that less
restrictive conditions would not assure the safety of others due to the following facts: the nature
of the charges, which were Class 2, 3, and 4 felonies (with the Class 2 felonies being
nonprobationable); defendant was possessing a firearm after being convicted of a forcible felony;
defendant recklessly discharged the firearm and endangered an individual’s bodily safety; the
firearm was reported stolen; some mental health issues had been reported; and defendant had an
extensive criminal history—11 prior cases, with some involving weapons.
¶7 The defendant timely filed a notice of appeal the following day. After the Office of the
State Appellate Defender (OSAD) was appointed to represent defendant in this appeal, OSAD
filed a notice “In Lieu of Rule 604(h) Memorandum.” Therefore, we need only consider the
arguments contained in the defendant’s notice of appeal. We now turn to our analysis and
additional facts will be included below where necessary.
¶8 II. ANALYSIS
¶9 First, we begin our analysis by determining which issues raised by the defendant are
properly before us. In his notice of appeal, the defendant only challenges the trial court’s finding
that the State met its burden in proving the defendant dangerous in that he poses a real and present
threat to the safety of other and the community, and that the State met its burden in proving that
no condition(s) can mitigate the threat posed. Thus, as to the other issues not raised in the notice
of appeal, the defendant has forfeited review as to those points. Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1,
2020) (“Points not argued are forfeited ***.”).
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¶ 10 Now, having determined the remaining three claims to be sufficiently brought before us
pursuant to Rule 604(h), we turn to our analysis of them.
“We have historically reviewed bail appeals under Illinois Supreme Court Rule
604(c)(1) (eff. Sept. 18, 2023) using an abuse of discretion standard. People v. Simmons,
2019 IL App (1st) 191253, ¶ 9, 143 N.E.3d 833. ‘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.” ’ Simmons, 2019 IL
App (1st) 191253, ¶ 9 (quoting People v. Becker, 239 Ill. 2d 215, 234, 940 N.E.2d 1131,
1142 (2010)); see People v. Johnson, 2019 IL App (3d) 190582, ¶ 8, 147 N.E.3d 756 (‘We
will review the decision of the [circuit] court [on a motion for review under Rule 604(c)]
for an abuse of discretion.’).
Rule 604(h), as amended due to the Act, provides a new procedure for these
appeals. See Ill. S. Ct. R. 604(h) (eff. Sept. 18, 2023). But the Act neither mandates nor
suggests a different standard of review. A defendant appealing under Rule 604(h) may
claim the State failed to fulfill its burden by ‘clear and convincing evidence.’ See Ill. S. Ct.
R. 604(h)(1)(iii) (eff. Sept. 18, 2023). However, we are not reviewing the State’s evidence
anew. Instead, we are reviewing the circuit court’s evaluation of that evidence for an abuse
of discretion. ‘[W]e will not substitute our own judgment for the trier of fact on issues
regarding the weight of the evidence or the credibility of the witnesses.’ People v. Vega,
2018 IL App (1st) 160619, ¶ 44, 123 N.E.3d 393. Under the Code, the circuit court was
invested with the responsibility to consider the various factors listed in section 110-6.1(g)
(real and present danger), as well as those in section 110- 6.1(a)(1)-(8) (feasibility of less
restrictive conditions) before finding detention to be appropriate. ‘[I]n reviewing the circuit
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court’s ruling for an abuse of discretion, we will not substitute our judgment for that of the
circuit court, “merely because we would have balanced the appropriate factors
differently.” ’ Simmons, 2019 IL App (1st) 191253, ¶ 15 (quoting People v. Cox, 82 Ill. 2d
268, 280, 412 N.E.2d 541, 547 (1980)).” People v. Inman, 2023 IL App (4th) 230864,
¶¶ 10-11.
¶ 11 The defendant’s first remaining claim is that “[t]he State failed to meet its burden of
proving by clear and convincing evidence 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.” The defendant explains his position by stating, “Facts were alleged that at most the
defendant (albeit a convicted felon) was at home with a hand gun [sic] that fired accidentally. Facts
do not arise to the level of present threat to either a specific person or persons or the community.”
¶ 12 Under section 110-6.1(g) of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-
6.1(g) (West 2022)), the trial court is provided with several factors to consider in making its
decision regarding a defendant’s dangerousness. The trial court then analyzes those factors within
the context of the specific facts of the case. Again, we review whether the trial court properly
considered one of the factors under the abuse of discretion standard. Inman, 2023 IL App (4th)
230864, ¶ 11. As a result, “in reviewing the circuit court’s ruling for an abuse of discretion, we
will not substitute our judgment for that of the circuit court, ‘merely because we would have
balanced the appropriate factors differently.’ ” People v. Simmons, 2019 IL App (1st) 191253, ¶ 15
(quoting People v. Cox, 82 Ill. 2d 268, 280 (1980)).
¶ 13 Here, the trial court explicitly stated it considered and found the following in its order: the
nature of the charges, which were Class 2, 3, and 4 felonies (with the Class 2 felonies being
nonprobationable); defendant was possessing a firearm after being convicted of a forcible felony;
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defendant recklessly discharged the firearm and endangered an individual’s bodily safety; the
firearm was reported stolen; some mental health issues had been reported; and defendant had an
extensive criminal history—11 prior cases, with some involving weapons.
¶ 14 Thus, where a felon, with an extensive criminal history involving weapons, is in possession
of a stolen weapon, is allegedly cleaning the weapon outside on his porch, and is doing so in a
reckless manner wherein the firearm discharges and shoots a projectile into a neighbor’s home
piercing their walls, we do not find that the trial court’s determination is “arbitrary, fanciful, or
unreasonable, or where no reasonable person would agree with the decision.”
¶ 15 The defendant’s second claim suffers the same fate. In reaching its determination as to
these matters, the trial court must consider: (1) the nature and circumstances of the offense
charged; (2) the weight of the evidence against the defendant; (3) the history and characteristics of
the defendant; (4) the nature and seriousness of the specific, real and present threat to any person
that would be posed by the defendant’s release; and (5) the nature and seriousness of the risk of
obstructing or attempting to obstruct the criminal justice process. 725 ILCS 5/110-5(a) (West
2022). The statute lists no singular factor as dispositive. Id.
¶ 16 As previously stated in our analysis of the defendant’s first claim, the trial court found that
a variety of factors supported denial of pretrial release. The record does not refute this. Thus, in
light of our review of the record, we find that the trial court’s findings were not unreasonable,
arbitrary, or fanciful. The trial court contemplated possible conditions that could have been ordered
but decided that given the extensive criminal history of this individual, especially the portion
involving weapons, the defendant’s disregard for the law or safety of others (evidenced by his
possession of a stolen firearm while being a convicted felon), and the fact that this dangerous act
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allegedly occurred at home where the defendant suggests the trial court should have confined him
to, these conditions were not viable.
¶ 17 III. CONCLUSION
¶ 18 For the foregoing reasons, we find that the trial court did not abuse its discretion in its
issuance of the October 5, 2023, order detaining the defendant.
¶ 19 Affirmed.
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