People v. Johnson

NOTICE
2023 IL App (5th) 230714
Decision filed 12/21/23. The
text of this decision may be NO. 5-23-0714
changed or corrected prior to
the filing of a Petition for
Rehearing or the disposition of
IN THE
the same.
APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Champaign County.
)
v. ) No. 23-CF-1169
)
MONET V. JOHNSON, ) Honorable
) Brett N. Olmstead,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________

JUSTICE BOIE delivered the judgment of the court, with opinion.
Presiding Justice Vaughan and Justice McHaney concurred in the judgment and
opinion.

OPINION

¶1 The defendant, Monet V. Johnson, appeals the September 21, 2023, order of the circuit

court of Champaign County granting the State’s petition to deny pretrial release and ordering him

detained. Pretrial release is governed by Public Act 101-652 (eff. Jan. 1, 2023), commonly known

as the Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act (Act), 1 as codified in

article 110 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/art. 110 (West 2022)).

See Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023) (amending various provisions of the Code); Rowe

v. Raoul, 2023 IL 129248, ¶ 52 (lifting stay and setting effective date as September 18, 2023). On

1
“The Act has also sometimes been referred to in the press as the Pretrial Fairness Act. Neither
name is official, as neither appears in the Illinois Compiled Statutes or public act.” Rowe v. Raoul, 2023
IL 129248, ¶ 4 n.1.
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appeal, the defendant argues that the circuit court abused its discretion when it denied his pretrial

release, asserting that the State failed to prove by clear and convincing evidence that he posed a

safety threat if released, which no conditions could mitigate. For the following reasons, we affirm

the order of the circuit court of Champaign County. 2

¶2 I. BACKGROUND

¶3 On September 18, 2023, the defendant was charged with one count of the offense of armed

violence in violation of section 33A-2(a) of the Criminal Code of 2012 (Criminal Code) (720 ILCS

5/33A-2(a) (West 2022)), one count of the offense of unlawful possession of weapons by a felon

in violation of section 24-1.1(a) of the Criminal Code (id. § 24-1.1(a)), and one count of the offense

of manufacture or delivery of a controlled substance in violation of section 401(c)(2) of the Illinois

Controlled Substances Act (720 ILCS 570/401(c)(2) (West 2022)), in Champaign County, Illinois.

On that same date, the State filed a verified petition to deny pretrial release alleging the proof is

evident and the presumption great that the defendant committed and was charged with an offense

listed in section 110-6.1(a) of the Code (725 ILCS 5/110-6.1(a) (West 2022)) and posed a real and

present threat to the safety of any person or persons or the community. On September 20, 2023,

the circuit court held a hearing on the State’s verified petition.

¶4 In arguing at the hearing that the defendant posed a real and present threat to the safety of

the community, the State posited that a vulnerable person could be injured by ingesting the cocaine

that the defendant sold or that another individual could attack the defendant’s apartment in an

2
Pursuant to Illinois Supreme Court Rule 604(h)(5) (eff. Dec. 7, 2023), our decision in this case
was due on or before December 8, 2023, absent a finding of good cause for extending the deadline. Based
on the high volume of appeals under the Act currently under the court’s consideration, as well as the
complexity of issues and the lack of precedential authority, we find there to be good cause for extending
the deadline.

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attempt to steal the cocaine and harm the people who live in the residence. The State proffered that

it had applied for a search warrant based on numerous controlled purchases of cocaine that were

made by the defendant to a source over a two-month period. Three of the controlled purchases

were conducted out of the apartment where the defendant was arrested. The source reported

purchasing crack cocaine from the defendant on at least 50 occasions over the past few months.

When officers arrived to execute the search warrant, they found that the defendant was armed with

a loaded .357 magnum revolver, held in the waistband of his pants, while aware that he was

prohibited from possessing the same. The defendant was holding 8.9 grams of a substance that

tested positive for cocaine in one pocket and $1381 in cash in another pocket. The defendant told

police that he found the firearm in his grill. The defendant admitted to selling crack cocaine in

order to prepare for a new child. There was a woman and a minor child in the apartment where the

defendant was arrested. The State argued that the defendant was placing the community and the

people who live in his residence in danger by his behaviors and that no conditions could mitigate

the threat in light of the continuation of the defendant’s illegal behaviors over a course of months.

Further, the State proffered the defendant’s criminal history, spanning from 1999 through 2007.

¶5 Defense counsel agreed that the facts presented by the State were accurate but noted that

the defendant did not use his firearm against the police, admitted to possession of the firearm, and

surrendered it. Defense counsel further argued that the defendant was not a danger to the

community and should be released from custody to care for his minor child.

¶6 The circuit court issued an order, finding by clear and convincing evidence that the proof

was evident or the presumption great that the defendant had committed a detainable offense

pursuant to section 110-6.1(a) of the Code. Id. In support thereof, the circuit court specifically

found as follows:

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 “From August to September of this year, police coordinated three controlled buys of

cocaine from [the defendant]. The source they worked with on these buys indicated they

had purchased crack cocaine from [the defendant] more than 50 times in the prior few

months. The police executed a search warrant on September 15, 2023, and found [the

defendant], who had on his person $1,381 cash, 8.9 grams of cocaine, and a loaded Colt

Python 357 Magnum handgun. [The defendant] admitted to [the] police that he knew he

could not possess the firearm and that he had been selling crack cocaine. [The defendant]

is a convicted felon who is prohibited from possessing firearms.”

¶7 The circuit court further found that the defendant posed a real and present threat to the

safety of any person or persons or the community and that no conditions or combination of

conditions set forth in section 110-10 of the Code (id. § 110-10) could mitigate the real and present

threat to the safety of any person or persons or the community, based on the specific articulable

facts of the case, specifically finding as follows:

“[The defendant’s] criminal history includes six prior prison sentences. Three were for

violent felonies and one was for being a felon in possession of a firearm, for which [the

defendant] was sentenced to five years in prison. He also has prior violent convictions for

Domestic Battery and Battery. [The defendant] knew he could not legally possess a firearm

because he had previously been sentenced to prison for doing just that. There are facts

providing an incentive for [the defendant] to comply with conditions of release, most

notably his employment, his medical condition (hernia), his responsibilities to a very young

child, and the age of much of his criminal history. On the whole, however, the facts

presented here show a prolific cocaine dealer with a history of violent crimes, illegally

arming himself with a loaded handgun to protect his unlawful enterprise, despite knowing

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 that possessing the loaded gun would lead to incarceration as it had done in the past. He

presents a danger to the community that conditions of release cannot mitigate.”

¶8 On September 21, 2023, the defendant filed a timely notice of appeal, utilizing the “Notice

of Pretrial Fairness Act Appeal 604(h) (Defendant as Appellant)” standardized form provided by

the Illinois Supreme Court. Ill. S. Ct. R. 604(h)(2) (eff. Sept. 18, 2023). The Office of the State

Appellate Defender (OSAD) was appointed to represent defendant in this appeal and filed a

memorandum in support of the Rule 604(h) appeal. The State filed a response to the defendant’s

appeal.

¶9 II. ANALYSIS

¶ 10 Pretrial release is governed by article 110 of the Code, as amended by the Act. 725 ILCS

5/art. 110 (West 2022). Under the Code, a defendant’s pretrial release may only be denied in

certain statutorily limited situations. See id. §§ 110-2(a), 110-6.1. After filing a timely verified

petition requesting denial of pretrial release, the State has the burden to prove by clear and

convincing evidence that the proof is evident or the presumption great (1) that the defendant has

committed a qualifying offense, (2) 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 (3) 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. Id. § 110-6.1(e), (f). The circuit

court may order a defendant detained pending trial if the defendant is charged with a qualifying

offense and the circuit court concludes that the defendant poses a real and present threat to the

safety of any person or the community, based on the specific articulable facts of the case (id. § 110-

6.1(a)(1)-(7)).

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¶ 11 The statute provides a nonexclusive list of factors that the circuit court may consider in

making a determination of “dangerousness,” i.e., that the defendant poses a real and present threat

to any person or the community. Id. § 110-6.1(g). In making a determination of dangerousness,

the court may consider evidence or testimony as to factors that include, but are not limited to,

(1) the nature and circumstances of any offense charged, including whether the offense is a crime

of violence involving a weapon or a sex offense; (2) the history and characteristics of the

defendant; (3) the identity of any person to whom the defendant is believed to pose a threat and

the nature of the threat; (4) any statements made by or attributed to the defendant, together with

the circumstances surrounding the statements; (5) the age and physical condition of the defendant;

(6) the age and physical condition of the victim or complaining witness; (7) whether the defendant

is known to possess or have access to a weapon; (8) whether, at the time of the current offense or

any other offense, the defendant was on probation, parole, or supervised release from custody; and

(9) any other factors including those listed in section 110-5 of the Code (id. § 110-5). Id. § 110-

6.1(g).

¶ 12 If the circuit court finds that the State proved a valid threat to a person’s safety or the

community’s safety and/or the defendant’s likely willful flight to avoid prosecution, or the

defendant’s failure to abide by previously issued conditions of pretrial release, then the circuit

court must determine what pretrial release conditions, “if any, will reasonably ensure the

appearance of a defendant as required or the safety of any other person or the community and the

likelihood of compliance by the defendant with all the conditions of pretrial release.” Id. § 110-

5(a). In reaching its determination, the circuit 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

6
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. Id. The

statute lists no singular factor as dispositive but provides that no single factor or standard may be

used exclusively to order detention. Id. § 110-6.1(f)(7).

¶ 13 If the circuit court determines that the defendant should be denied pretrial release, the

circuit court is required to make written findings summarizing the reasons for denying pretrial

release. Id. § 110-6.1(h). The circuit court’s determination regarding pretrial release will not be

reversed absent an abuse of discretion. People v. Swan, 2023 IL App (5th) 230766, ¶ 11 (citing

People v. Perruquet, 68 Ill. 2d 149, 154 (1977), and People v. Etherton, 2017 IL App (5th) 140427,

¶ 15 (setting a similar standard of review for the sentence imposed on the defendant after the circuit

court’s consideration of statutory factors and evidence presented at sentencing)). Likewise,

questions regarding whether the circuit court properly balanced one or more of the statutory factors

in determining dangerousness and/or conditions of release are reviewed for an abuse of discretion.

Id. (citing People v. Simmons, 2019 IL App (1st) 191253, ¶¶ 9, 15 (in considering circuit court’s

decision to deny bail, the reviewing court will not substitute its judgment for that of the circuit

court merely because it would have balanced the appropriate factors differently)). An abuse of

discretion occurs when the decision of the circuit court is arbitrary, fanciful, or unreasonable or

when no reasonable person would agree with the position adopted by the circuit court. Id. (citing

Simmons, 2019 IL App (1st) 191253, ¶ 9).

¶ 14 Additionally, the circuit court’s finding that the State presented clear and convincing

evidence showing that mandatory conditions of release would fail to protect any person or the

community will not be reversed unless those findings are against the manifest weight of the

evidence. Id. ¶ 12 (citing In re C.N., 196 Ill. 2d 181, 208 (2001) (setting a similar standard of

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review for requirement of clear and convincing evidence by the State in juvenile proceedings)).

“ ‘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.’ ”

Id. (quoting People v. Deleon, 227 Ill. 2d 322, 332 (2008)). “Under the manifest weight standard,

we give deference to the [circuit] court as the finder of fact because it is in the best position to

observe the conduct and demeanor of the parties and witnesses.” Deleon, 227 Ill. 2d at 332.

¶ 15 On appeal, the defendant argues that the circuit court abused its discretion when it denied

his pretrial release, asserting that the State failed to prove by clear and convincing evidence that

he posed a safety threat if released, which no conditions could mitigate. The defendant claims that

the generic public health risks posed by the sale of illegal psychoactive drugs and the risk of

violence against drug dealers is not a “threat to the safety” of persons or the community, as

contemplated by the Act for purposes of detention. In support of his claim, the defendant argues

that the circuit court’s findings were based on a misreading of the Act. According to the

defendant’s argument, when the Act speaks of a “threat to the safety” to a person, persons, or the

community, it means a threat of unlawful physical violence by the defendant. The defendant argues

that the public health risk posed by the sale and ingestion of illegal psychoactive drugs is not in

and of itself such a threat. Neither is the risk that violence will be used against the defendant,

absent any risk that the defendant himself will unlawfully use violence. According to the

defendant, the circuit court could only find that a defendant poses a real and present threat to safety

when there is a real and present threat that he will commit violent criminal acts.

¶ 16 In response, the State argues that nothing in the statute’s language states or implies that

only defendants who pose a direct threat of committing violent criminal acts are detainable. The

State further argues that the sale of drugs affects both the intentional and voluntary users of cocaine

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as well as those who may involuntarily ingest or come into contact with the substance and that the

circuit court’s consideration of the possibility that the defendant’s home would be attacked was

not the circuit court’s sole consideration but was, nevertheless, an appropriate factor to be

considered.

¶ 17 A. The Circuit Court’s Findings That the Defendant Posed a Real and Present Threat

to the Safety of the Community

¶ 18 In support of his argument on the meaning of “threat to safety” as contemplated by section

110-6.1 of the Code, the defendant cites the factors to be considered in making a determination of

dangerousness pursuant to section 110-6.1(g) of the Code and the triggering offenses that can

authorize detention. The defendant argues that the triggering offenses, in conjunction with the list

of dangerousness factors, indicate a legislative intent that a “threat to the safety” means a risk that

the defendant will commit violent criminal acts. The defendant argues that the public health risk

posed by sale of illegal psychoactive drugs, and the risk of unlawful violence against the defendant

while engaged in the sale of illegal drugs, is not a threat to safety intended by the legislature to

warrant detention based on a determination of dangerousness.

¶ 19 We review issues of statutory construction de novo. People v. Kastman, 2022 IL 127681,

¶ 29. “A court’s fundamental objective in addressing issues of statutory construction is to ascertain

and give effect to the legislature’s intent.” People v. Taylor, 2023 IL 128316, ¶ 45. In this pursuit,

we “may consider the reason and necessity for the law, the evils it was intended to remedy, and its

ultimate aims.” (Internal quotation marks omitted.) Id. We presume that “the General Assembly,

in enacting legislation, did not intend absurdity, inconvenience, or injustice.” Kastman, 2022 IL

127681, ¶ 30.

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¶ 20 The supreme court has commented that the bail clause of the Illinois Constitution of 1970

(Ill. Const. 1970, art. I, § 9) concerns the individual rights of criminal defendants, “but in its ‘real

and present threat’ exception, it acknowledges the State’s interest in public safety.” Rowe, 2023

IL 129248, ¶ 41. The supreme court went on to note that the Act’s pretrial release provisions

complement the bail clause in that regard, by allowing the State to seek, and the circuit court to

order, pretrial detention of certain criminal defendants. Id. ¶ 30 (discussing 725 ILCS 5/110-2,

110-6.1 (West 2022)).

¶ 21 The defendant does not cite any legal authority to support his proposed construction of the

dangerousness finding required by the Code’s provision on pretrial detention, and his arguments

do not justify adopting such a construction. Reading into the statute the requirement that the State

prove that the defendant will commit a violent offense would impose a material change in the plain

language of the Code. While the defendant claims that the statutory factors under section 110-

6.1(g) show “unvarying focus on the defendant’s unlawful violent acts to another person’s body

without their consent,” the plain language of the statute contradicts this assertion. Section 110-

6.1(g) of the Code includes factors three through eight, which fail to make any reference to

violence. 725 ILCS 5/110-6.1(g)(3)-(8) (West 2022). Additionally, while the first factor references

violence, it begins with the catchall phrase “[t]he nature and circumstances of any offense

charged.” Id. § 110-6.1(g)(1). We reject the defendant’s invitation to read into the Code that “a

real and present threat to the safety of any *** persons or the community” must be limited to the

threat of the defendant committing violent criminal acts. Id. § 110-6.1(g). The intent of the

legislature is clear from the plain language of the statute—that the circuit court may deny a

defendant pretrial release only if the defendant’s pretrial release poses a real and present threat to

the safety of any person, persons, or the community. Id. § 110-6.1(a)(1). If the legislature intended

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that pretrial release be denied only where the defendant poses a real and present threat of

committing “violent criminal acts,” the legislature could have added that language as easily as the

defendant. Absent such language, and considering the Act as a whole, we are not persuaded by the

defendant’s proposed construction.

¶ 22 B. Denial of Pretrial Release

¶ 23 The defendant’s remaining argument regarding the State’s failure to prove, by clear and

convincing evidence, that the defendant posed a threat to safety is dependent on what he describes

as the “proper interpretation of the statute,” an interpretation that we have rejected. Further, the

defendant does not argue that the circuit court did not properly weigh the factors relating to

conditions, other than to assert that the defendant was not a safety threat.

¶ 24 Contrary to the defendant’s argument, the record demonstrates that there was evidence

supporting the circuit court’s determination that the defendant posed a real and present threat to

the community. The circuit court 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.

¶ 25 The circuit court properly considered the nature of the offenses charged, including whether

the offenses constituted crimes of violence, involved a weapon, or were a sex offense, as required

by section 110-6.1(g)(1) of the Code. The circuit court specifically determined that the defendant

was selling drugs in the community, which posed a danger to others in the community who may

purchase and use those dangerous drugs and that those in the community may be at risk of crimes

committed by others based upon the inherent danger present in the drug trade. Each of the

defendant’s charges provoke the circuit court to consider public safety.

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¶ 26 The defendant was charged with manufacture or delivery of a controlled substance (720

ILCS 570/401(c)(2) (West 2022)), under the Illinois Controlled Substances Act. The legislative

intent of the Illinois Controlled Substances Act states, in relevant part, that it was passed:

“recognizing the rising incidence in the abuse of drugs and other dangerous

substances and its resultant damage to the peace, health, and welfare of the citizens

of Illinois, *** [and to] penalize most heavily the illicit traffickers or profiteers of

controlled substances, who propagate and perpetuate the abuse of such substances

with reckless disregard for its consumptive consequences upon every element of

society.” Id. § 100.

¶ 27 In addition to possessing and selling dangerous drugs, the defendant possessed a loaded

firearm, which is classified as a dangerous weapon under the law. People v. Ross, 229 Ill. 2d 255,

275 (2008). The defendant possessed the loaded firearm despite being prohibited from doing so

based on his felon status (720 ILCS 5/24-1.1(a) (West 2022)) and had been previously incarcerated

based on the same offense. The purpose of the unlawful possession of weapons by a felon statute

“ ‘is to protect the health and safety of the public by deterring possession of weapons by convicted

felons, a class of persons that the legislature has determined presents a higher risk of danger to the

public when in possession of a weapon.’ ” People v. Garvin, 2013 IL App (1st) 113095, ¶ 14

(quoting People v. Crawford, 145 Ill. App. 3d 318, 321 (1986), citing Rawlings v. Department of

Law Enforcement, 73 Ill. App. 3d 267 (1979)).

¶ 28 Finally, the defendant was charged with armed violence (720 ILCS 5/33A-2(a) (West

2022)). Our supreme court recognized that the passage of the armed violence statute was the

legislature’s “emphatic response to the growing incidence of violent crime.” People v. Harre, 155

Ill. 2d 392, 395 (1993). The legislature recognized that a felon with immediate access to a

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dangerous weapon was predisposed to use such a weapon when confronted with resistance, either

from victims, law enforcement representatives, or other criminals. Id.

¶ 29 The circuit court’s order indicated that it considered “all factors set forth in 725 ILCS

5/110-6.1 and otherwise allowed by law.” The circuit court properly considered the history and

characteristics of the defendant, acknowledging the defendant’s extensive criminal history,

including several violent offenses. The circuit court considered the safety threat that the

defendant’s actions posed to the community at large, a small child present where the defendant

had been selling drugs, as well as others present in the apartment, and the nature of those threats.

The circuit court considered whether the defendant was known to possess or have access to

weapons. The defendant was found in possession of a weapon and lived in a dangerous

neighborhood where, according to the State’s proffer, he claimed to have found the firearm he

possessed in his grill. The circuit court found that the defendant’s criminal history included six

prior prison sentences, three for violent felonies and one for being a felon in possession of a

firearm. The circuit court noted that the defendant was “a prolific cocaine dealer with a history of

violent crimes, illegally arming himself with a loaded handgun to protect his unlawful enterprise,

despite knowing that possessing the loaded gun would lead to incarceration as it had done in the

past.” The facts specifically outlined by the circuit court and contained in the record support the

circuit court’s finding that the defendant posed a danger to the community and that, based on the

defendant’s history and characteristics, there was a low likelihood of compliance by the defendant

with conditions of pretrial release. Thus, the circuit court appropriately found that no conditions

of release could mitigate that danger.

¶ 30 Based on our review of the record and any memoranda submitted, we find that the circuit

court’s findings—that the defendant met the dangerousness standard, posing a real and present

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threat to the safety of any person or the community, and that no less restrictive conditions would

avoid the real and present threat to the safety of any person or the community—were not error. We

have thoroughly reviewed the record on appeal and conclude that it does not demonstrate that the

circuit court’s judgment denying the defendant pretrial release was arbitrary, fanciful, or

unreasonable or that no reasonable person would agree with the position adopted by the circuit

court. Therefore, the circuit court’s order denying pretrial release was not an abuse of discretion.

¶ 31 III. CONCLUSION

¶ 32 For the foregoing reasons, we affirm the September 21, 2023, detention order of the circuit

court of Champaign County.

¶ 33 Affirmed.

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 People v. Johnson, 2023 IL App (5th) 230714

Decision Under Review: Appeal from the Circuit Court of Champaign County, No. 23-
CF-1169; the Hon. Brett N. Olmstead, Judge, presiding.

Attorneys James E. Chadd, Carolyn R. Klarquist, and Benjamin Wimmer,
for of State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:

Attorneys Patrick Delfino, David J. Robinson, and Kena Bere, State’s
for Attorneys Appellate Prosecutor’s Office, of Springfield, for the
Appellee: People.

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