People v. Milsap

NOTICE 2024 IL App (4th) 240020-U
This Order was filed under
FILED
Supreme Court Rule 23 and is March 6, 2024
NO. 4-24-0020
not precedent except in the Carla Bender
limited circumstances allowed 4th District Appellate
under Rule 23(e)(1).
IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Adams County
MICHAEL P. MILSAP, ) No. 23CF740
Defendant-Appellant. )
) Honorable
) Robert K. Adrian,
) Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court.
Justices Zenoff and Doherty concurred in the judgment.

ORDER

¶1 Held: The trial court did not abuse its discretion in denying defendant pretrial
release.

¶2 Defendant, Michael P. Milsap, appeals the trial court’s order denying his pretrial

release under section 110-6.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS

5/110-6.1 (West 2022)), hereinafter as amended by Public Acts 101-652, § 10-255 and

102-1104, § 70 (eff. Jan. 1, 2023), commonly known as the Pretrial Fairness Act. We affirm.

¶3 I. BACKGROUND

¶4 On December 19, 2023, the State charged defendant with unlawful possession of

weapons by a felon (720 ILCS 5/24-1.1(a) (West 2022)) and unlawful possession of firearm

ammunition by a felon (id.).

¶5 The same day, the State petitioned to deny defendant’s pretrial release under
section 110-6.1 of the Code. The State asserted defendant’s pretrial release posed a real and

present threat to the safety of any person or persons or the community.

¶6 A hearing was held the same day. The State attached a certified police report as

evidence in support of its petition. According to the certified police report:

“On 12/16/2023 at 2302 I was in the area of 6th and

Washington. I observed a dark colored Dodge Durango flee from

6th and Washington at a high rate of speed. I was unable to

conduct a traffic stop on the vehicle. At 2305 I was dispatched to

609 Washington for shots fired, as well as, 613 Washington for a

disturbance. Upon arrival at 613 Washington, I observed a male,

later identified as [defendant], walk around the east side of

residence before making contact with me. [Defendant] denied that

there was an issue at the residence and was extremely combative

towards law enforcement. [Defendant] stated that he was in his

garage all night after coming home from a graduation party. Also

While at 613 Washington officers spoke with Rochelle Milsap,

[defendant’s] wife, Rochelle Milsap stated that she did call for the

disturbance, but stated that she had no clue what was happening

and that she had called back and stated she no [l]onger needed

police. Both Rochelle and [defendant] stated that they had no clue

what had happened and that they did not hear a gun shot. The

disturbance was unfounded. I then made contact with Tim

Mandrell and Sorita Selmen, who were the callers from the shots

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fired call. Mandrell stated that he heard arguing outside of his

home and looked out the window. Mandrell stated he saw a dark

colored Dodge Durango parked at 6th and Washington. Mandrell

stated that the driver of the Dodge Durango and a male known to

him as [defendant] were walking towards each other, before

[defendant] shot a singular round from a handgun. Mandrell stated

that as [defendant] shot[,] the driver from the Dodge Durango

ducked down and ran back to the vehicle. Mandrell stated that he

thought he heard a second gun shot but he and Selmen discovered

that the noise had came from the television. I then collected video

footage from a home surveillance camera at 604 Washington.

While at 604 Washington I spoke with James Valentine. Valentine

stated that he had heard an argument outside but stated it was not

very loud, and also stated that he did not hear a shot, or see the

vehicle drive away. In the video you can see the Dodge Durango

drive west bound on Washington street before making a U-turn in

the intersection of 6th and Washington.

The vehicle then parked on Washington St. In the video the

driver of the vehicle and [defendant] walk towards each other on

Washington St. A flash could then be seen in [defendant’s] hands.

The driver of the vehicle then ducks down, before running back to

the vehicle and the vehicle flees from the area. In the video

[defendant] can be seen walking back to 613 Washington. A

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 singular .380 shell casing was located roughly in the same area in

[defendant] was standing at the time the flash could be seen

coming from his hand. The shell casing was located at 0212 hours

on 12/27/2023.

On 12/18/2023 at approximately 1030 hours officers

executed a search[ ] warrant at 613 Washington. While executing

the search warrant a Rug[e]r .380 LCP was located inside of a

white cooler inside of the garage. *** While searching the

residence, 100 .22 long rifle rounds were also located and

collected. The ammunition was located on a shelf at the top of a

closet in [defendant’s] primary bedroom. ***.”

¶7 The trial court stated it had reviewed the pretrial services report. According to that

report, defendant had resided with his wife at 613 Washington Street, Quincy, Illinois, for 30

years. Defendant operated his own construction business, earning $80 per hour working 60-70

hours per week. The report lists over 20 traffic offenses beginning in 1993. Defendant’s criminal

history in Adams County includes the following: two possession-of-cannabis convictions in

1993, resisting/obstructing a peace officer in 1993, criminal trespass to land in 1993, possession

of cannabis in 1994, unlawful delivery of controlled substance for which he was sentenced to six

years in the Illinois Department of Corrections (DOC) in 1995, criminal damage to property in

1996, aggravated battery in 1996 for which he was sentenced to five years in the DOC, unlawful

possession of a controlled substance in 1996, fighting in 2000, possession of a controlled

substance for which defendant was sentenced to three years in the DOC in 2001, fighting in

2002, possession of drug paraphernalia and cannabis in 2010, aggravated driving under the

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influence for which he was sentenced to two years in the DOC, resisting a peace officer in 2010,

domestic battery in 2011, and fighting in 2015. There were also multiple traffic offenses in Ohio

from 2004 to 2007.

¶8 The author reported the Revised Virginia Pretrial Risk Assessment Instrument,

performed by Pretrial Services, identified defendant’s risk of pretrial misconduct as 6 out of a

possible score of 0-14. Based on statistical norms, the assessment estimates a 90% probability

defendant will appear for future hearings and no offenses will occur during the pendency of the

case. The pretrial officer recommended defendant be placed on pretrial supervision.

¶9 Defense counsel presented no evidence but argued defendant should be permitted

pretrial release. Counsel emphasized defendant owned his own business with four to five

employees. Counsel reported defendant had minor grandchildren whom he and his wife looked

after while their parents worked and his wife had surgery scheduled the next month. Counsel

further emphasized the State had not charged defendant with an offense based on the discharge

of a firearm. Counsel argued conditions could guarantee defendant would not commit future

criminal offenses, such as wearing a global-positioning-system device and participating in

pretrial services.

¶ 10 The trial court granted the State’s petition to detain defendant. In so doing, the

court found the following:

“The defendant is charged with possession of a firearm. He is seen

on video discharging a firearm[,] *** which is the possession of

the firearm *** part of the charge. The fact that he is seen

discharging that firearm and other people [report] hearing the

discharge of that firearm provides that the defendant would be—

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 and the fact that he discharged it towards another individual who

was present and towards a vehicle, the Court finds that he would,

by clear and convincing evidence, *** be a danger to [a] particular

member of the public or the public at large because [defendant] is a

felon, has several felony convictions, has been to the [DOC] and,

in fact, a gun was found after a search warrant along with some

ammunition to another weapon. The Court does not believe that

there are any terms of pretrial release that could be ordered that in

this case would alleviate the need to detain [defendant].”

¶ 11 The trial court issued a written order on the State’s verified petition for detention.

The court did so by checking boxes on a preprinted form. The court adopted its verbal findings

and found by clear and convincing evidence the proof is evident or the presumption great

defendant committed an offense for which pretrial release may be denied, defendant’s pretrial

release posed a real and present threat to the safety of any person or persons or the community,

and no condition or combination of conditions could mitigate that threat. The court further

checked boxes to summarize the statutory factors on which it based its finding of dangerousness

and its determination no condition or combination of conditions could mitigate that threat: the

nature and circumstances of the offenses charged, defendant’s criminal history indicative of

violent, abusive, or assaultive behavior, the identity of any person or persons to whose safety the

defendant is believed to pose a threat, and whether defendant is known to possess or have access

to a weapon.

¶ 12 This appeal followed.

¶ 13 II. ANALYSIS

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¶ 14 On December 29, 2023, defendant filed a notice of appeal challenging the order

denying his pretrial release under Illinois Supreme Court Rule 604(h) (eff. Dec. 7, 2023).

Defendant’s notice of appeal is a completed form from the Article VI Forms Appendix to the

Illinois Supreme Court Rules (see Ill. S. Ct. R. 606(d) (eff. Dec. 7, 2023)), by which he asks this

court to reverse the order denying his release. The form lists several possible grounds for

appellate relief and directs appellants to “check all that apply and describe in detail.” On the

form, defendant asserted three grounds of relief and provided argument under each ground.

Defendant also filed a memorandum supporting his appeal.

¶ 15 The first checked box on defendant’s notice of appeal sets forth the argument the

State did not prove by clear and convincing evidence defendant poses a real and present threat to

the safety of any persons or persons or the community. In support, defendant wrote the

following:

“The Pretrial Services Report recommended the defendant

be placed on pretrial supervision, not detention. Defendant has two

convictions involving violence but the last one was a misdemeanor

in 2011. Defendant is not [a] threat to safety of any identifiable

person or persons or the community. Defendant was not a

respondent in any civil stay away order/no contact orders. The

defendant is not on parole or any other type of court supervision at

the time of the hearing.”

In his memorandum, defendant added the fact he possessed a gun and ammunition is not alone

sufficient to prove defendant posed a threat and questioned the State’s reliance on uncharged

conduct to show defendant was dangerous. Defendant further emphasized his criminal history is

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largely nonviolent.

¶ 16 Under the Code, all criminal defendants are eligible for pretrial release. 725 ILCS

5/110-6.1(e) (West 2022). To deny defendant pretrial release under section 110-6.1(e)(1)-(3) of

the Code (id. § 110-6.1(e)(1)-(3)), as the State sought here, the State must prove by clear and

convincing evidence “the 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 Code gives

the trial court broad discretion in choosing what factors to consider in making this determination

and lists some factors a court may consider. See id. § 110-6.1(g). This nonexhaustive list

includes, in part, (1) the nature and circumstances of the charged offense, including whether the

offense is one of violence, involves a weapon, or a sex offense; (2) defendant’s history and

characteristics, including evidence of a criminal history indicative of violent, abusive or

assaultive behavior; (3) identity of person or persons to whose safety the defendant is believed to

pose a threat; (4) statements made or attributed to defendant; (5) defendant’s age and physical

condition; and (6) whether defendant is known to have access to any weapon. Id.

¶ 17 This court reviews the question of whether a criminal defendant is properly

denied pretrial release for an abuse of discretion. See People v. Inman, 2023 IL App (4th)

230864, ¶¶ 10-11. We will find an abuse of discretion when the decision is unreasonable,

arbitrary, or fanciful or when we find no reasonable person would agree with the trial court’s

decision. Id. ¶ 10.

¶ 18 We need not decide, as defendant argues, whether the offense alone may support

a finding the defendant’s release poses a threat as the trial court did not rely on that fact alone

when finding the State sufficiently proved this factor. Defendant is charged with unlawful

possession of a weapon and ammunition. The circumstances surrounding the offense reveal other

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facts supporting the finding of dangerousness. There is witness testimony and video evidence

showing defendant, despite being barred by law from possessing a weapon and ammunition, not

only possessed a weapon and ammunition but also fired a weapon in the direction of another

person. There is also proffered evidence defendant’s wife called police due to a disturbance and

then canceled the call. Defendant has a record of violent behavior, including a 1996 aggravated

battery, a 2011 domestic battery, and three “fighting” convictions between 2000 and 2015. The

court considered the statutory factors of section 110-6.1(g) (725 ILCS 5/110-6.1(g) (West

2022)), rejecting some and accepting others. While the offenses in defendant’s past are older,

given the court’s consideration of the statutory factors and analysis of the facts and

circumstances of the case, we cannot find the court’s determination to be fanciful, arbitrary, or

unreasonable.

¶ 19 Defendant’s next argues in his notice of appeal the State did not prove by clear

and convincing evidence no condition or combination of conditions can mitigate the real and

present threat to the safety of the community. In support, defendant wrote the following:

“Defendant is 48 years old, married[,] and is self-employed

in construction business. Other than a littering charge in 2019[,]

*** defendant has no criminal dispositions since 2015. The

defendant has a medical condition, [Crohn’s] disease[,] which is

being treated, as well as high blood pressure. The defendant has

been married for over 30 years. The court did not consider

alternatives such as home confinement or electronic monitoring

[which] would allow defendant’s continued employment and

ability to seek treatment.”

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In his memorandum, defendant argues the Code sets forth multiple mandatory and permissible

conditions a trial court may impose instead of pretrial detention, but the State only addressed one

of those conditions, the prohibition against possession of a firearm, and the court here made one

conclusory statement on the issue. Defendant further relies largely on People v. Stock, 2023 IL

App (1st) 231753, to support his claim.

¶ 20 To obtain pretrial detention under the dangerousness standard, the State must also

prove by clear and convincing evidence no condition or combination of conditions set forth in

section 110-10(b) (725 ILCS 5/110-10(b) (West 2022)) can mitigate the real and present threat

defendant’s release poses to the safety of any person or persons or the community. See 725 ILCS

5/110-6.1(e)(3)(i) (West 2022). Section 110-10(b) lists discretionary conditions to be considered,

including refraining from possessing a firearm (id. § 110-10(b)(2)), being placed under direct

supervision of a pretrial services agency or probation department in home confinement with or

without electronic monitoring (id. § 110-10(b)(5)), and refraining from approaching or

communicating with a particular person (id. § 110-10(b)(3)). A detention order must contain a

written finding summarizing why less restrictive conditions would not mitigate the threat. Id.

§ 110-6.1(h)(1).

¶ 21 We do not find defendant’s emphasis on the fact the State argued against only one

of the conditions listed in section 110-10(b) renders the no-condition-or-combination-of-

conditions factor unproved. There is no requirement in section 110-6.1 the State “argue” against

each possible condition. Instead, the mandate is the State proffer evidence to establish clearly

and convincingly, in part, no condition or combination of conditions can mitigate the real and

present threat. See id. § 110-6.1(e)(3)(i). Here, it is not unreasonable for the trial court to have

concluded the State did so. The two conditions defendant argues that could have mitigated any

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threat are home confinement and electronic monitoring. The proffer on which the trial court

relied in finding the State sufficiently proved this factor includes evidence showing defendant

committed the unlawful-possession-of-a-weapon offense while in his own home and just outside

his home. In addition, the reporting officer responded to a call for a disturbance at defendant’s

home and the shots-fired call at a neighboring address. It is not an abuse of discretion to

conclude the evidence clearly and convincingly showed a condition of home confinement and

electronic monitoring would not mitigate the threat to the safety of any person or persons or the

community.

¶ 22 We further find unconvincing defendant’s argument the trial court’s ruling

regarding the conditions was insufficient. While the court, at the hearing, directed only one

sentence regarding this factor, finding no “terms of pretrial release *** could be ordered that in

this case would alleviate the need to detain [defendant],” it did so after summarizing the facts

and circumstances of the offense. The court noted defendant not only unlawfully possessed a

firearm but also fired the firearm in the direction of a person. In addition, the verbal statement at

the hearing was not the end of the court’s explanation of its ruling. In its written order, the court

stated it based its determination on defendant’s criminal history, which included violent, abusive,

or assaultive behavior, the identity of a person or persons to whose safety the defendant is

believed to pose a threat, and the fact defendant possessed a weapon.

¶ 23 Defendant’s case law supporting this claim is distinguishable and unpersuasive. In

Stock, the First District applied the manifest-weight-of-the-evidence standard to find the trial

court erred in concluding no condition or combination of conditions would mitigate the threat.

Stock, 2023 IL App (1st) 231753, ¶¶ 12, 15-19. The First District concluded the State had relied

only on the factual proffer about the circumstances of the charged offense—aggravated battery

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based on the defendant’s alleged firing of a gun at his wife and injuring her as she attempted to

remove her belongings from the marital home while seeking a divorce. Id. ¶¶ 5, 18. The First

District concluded more was required than proof of the basic elements of the offense to prove no

conditions could mitigate the threat of the defendant’s pretrial release. Id. ¶ 18. The court further

noted proof of that element could not be inferred “particularly in a case like this one where

defendant has no other criminal history beyond the instant case and the record before us

demonstrates that [the] defendant has otherwise been an upstanding and law-abiding member of

the community.” (Emphasis added.) Id. ¶ 19. Here, unlike in Stock, there is a lengthy criminal

history that includes violent behavior and repeated incarcerations.

¶ 24 The last argument defendant asserts in his notice of appeal challenges the

sufficiency of the trial court’s detention order—an order created using a preprinted form:

“Pursuant to 725 ILCS 5/110-6.1(h)(1) the Court’s order

for detention shall ‘(1) make a written finding summarizing the

reasons … the defendant should be denied pretrial release,

including why less restrictive conditions would not avoid a real

and present threat … (to others), based upon specific articulable

facts of the case, or prevent the defendant’s willful flight from

prosecution.’

The Court’s order does not make a written finding

summarizing the reasons for detention and does not state in the

written order why less restrictive conditions would not avoid a real

and present threat. The Court made no written findings but

checked a form order with boxes citing the statute without stating

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 any specific finding.”

In his memorandum, defendant relies on two cases in support: Stock and People v. Earnest, 2024

IL App (2d) 230390.

¶ 25 As shown above, section 110-6.1(h)(1) mandates courts issuing detention orders

make written findings “summarizing” the reasons for concluding defendants should be denied

pretrial release, including reasons why less restrictive conditions would not mitigate a real and

present threat to the safety of any person, persons, or the community. 725 ILCS 5/110-6.1(h)(1)

(West 2022). No language within this section bars a trial court from making those written

findings by using a preprinted form.

¶ 26 Defendant’s case law does not establish error as it does not show a trial court may

not satisfy section 110-6.1(h)(1) by use of a preprinted form and does not establish the court’s

summary of reasons was insufficient. Stock involves the use of a preprinted form; however, the

decision turned not on the sufficiency of the form or the written order but on the insufficiency of

the evidence presented at the hearing. See Stock, 2023 IL App (1st) 231753, ¶¶ 15-20. The only

reason provided in the written order in Stock was also the only evidence provided by the State:

“The defendant shot a firearm at the complaining witness.” Id. ¶ 20. The court had already found

that fact alone, an element of the charged offense and the only basis for the State’s claim, was

insufficient to support a finding no conditions would mitigate the threat. Id. ¶ 19. As in Stock, the

written order in Earnest was not insufficient solely because the summary of reasons was

insufficient but because the State presented no evidence on whether any condition or

combination of conditions would mitigate the risk of willful flight. Earnest, 2024 IL App (2d)

230390, ¶ 27 (finding the record “barren”). The Second District found the court failed to address

any evidence regarding whether conditions would mitigate willful flight as there was no such

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evidence proffered. Id. ¶ 28. Only then was the “checkbox boilerplate order,” containing no

summary of reasons why less restrictive conditions would not prevent willful flight, insufficient

under section 110-6.1(h)(1). See id. ¶¶ 27-28.

¶ 27 In contrast to the facts in defendant’s case law, the State proffered evidence on

this issue and the trial court made written findings expressly directed toward the conditions

element. The court’s written order expressly adopted its oral findings. At the hearing, the court

summarized the facts of the offense, the unlawful possession of a firearm, as well as the fact

defendant fired the firearm at another person. As additional support for its finding no condition

or conditions could mitigate the threat, the court further checked the boxes highlighting

defendant’s criminal history and found such history included violent and abusive behavior,

defendant was a threat to a particular person, and defendant had access to a weapon. The fact the

court checked some boxes, boxes with reasons supported by the record, and not others, shows the

court used its discretion in weighing the evidence and in providing the reasons for its findings.

The court’s order complies with section 110-6.1(h)(1) of the Code.

¶ 28 III. CONCLUSION

¶ 29 We affirm the trial court’s judgment.

¶ 30 Affirmed.

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