People v. Hongo

2024 IL App (1st) 232482

SECOND DIVISION
March 19, 2024

No. 1-23-2482B

______________________________________________________________________________

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) Nos. 23 CR 380001, 23 CR
) 380401
JARIUS HONGO, ) Honorable
) Thomas J. Byrne,
Defendant-Appellant. ) Judge Presiding.
_____________________________________________________________________________

JUSTICE McBRIDE delivered the judgment of the court, with opinion.
Justices Ellis and Cobbs concurred in the judgment and opinion.

OPINION

¶1 Defendant, Jarius Hongo, appeals the trial court’s judgment denying pretrial release. The

record shows that defendant is charged with the offense of being an armed habitual criminal (720

ILCS 5/24-1.7(a) (West 2022)), two counts of unlawful use or possession of a weapon by a felon

(720 ILCS 5/24-1.1(a) (West 2022)), and two counts of aggravated unlawful use of a weapon (720

ILCS 5/24-1.6(a)(1) (West 2022)). The charges stem from a March 2, 2023, incident in which

defendant, who has prior convictions for attempted murder and aggravated unlawful use of a

weapon, was found in possession of a loaded 9-millimeter pistol with a 33-round capacity extended

magazine.
No. 1-23-2482B

¶2 On October 16, 2023, defendant filed a petition for release, in which he argued that he was

being held on bail that had been previously set, which he had been unable to afford. Defendant

asserted that he was neither a flight risk nor presented any danger to the community.

¶3 On October 17, 2023, the State filed a petition for a pretrial detention hearing. The State

asserted that defendant had committed an eligible offense, being an armed habitual criminal, and

that he posed a real and present threat to the safety of the community based on the specific facts

of the case. In particular, the State asserted that the facts showed that defendant, while being placed

into custody on two murder investigations, was found to be in possession of a 9-millimeter pistol

with a 33-round capacity magazine. The State further asserted that defendant was on parole at the

time and that he had prior convictions for attempted murder and aggravated unlawful use of a

weapon. Additionally, the State noted that, after being taken into custody, defendant was taken to

the hospital for a mental health evaluation, during which he punched a hospital security guard in

the head and tried to bite him.

¶4 On October 17, 2023, the court held a hearing on the parties’ respective petitions. The

State’s factual proffer provided that on March 2, 2023, around 4:20 p.m., officers approached

defendant at a gas station in Dolton, Illinois, to place him into custody “in relation to two homicide

investigations.” A custodial search of defendant was conducted, and a loaded 9-millimeter pistol

with a 33 round capacity extended magazine was recovered from defendant’s front waistband. At

the time of his arrest, defendant was on parole, and had prior convictions for attempted first degree

murder and aggravated unlawful use of a weapon. Subsequent to his arrest, and while

“in police custody[,] the defendant was transported to a hospital for a mental health

evaluation. The defendant became combative and needed to be restrained and

sedated. Before that happened, before he was sedated, the defendant punched a

2
No. 1-23-2482B

uniform[ed] hospital security guard in the head, tried to bite that guard’s arm and

spit in his direction.”

¶5 Based on the above facts, the State argued that no condition or combination of conditions

could mitigate the risks that the defendant poses to any person or persons in the community. The

State clarified that the defendant was also charged in relation to the aggravated battery of a peace

officer but that the charge was a “non-detainable offense” and that the State was electing to bring

the petition based on defendant’s armed habitual criminal charge, which was detainable.

¶6 Defense counsel argued against pretrial detention, asserting that defendant had not

committed any offenses before the officers approached him at the gas station. Counsel argued that

he did not brandish or threaten anyone with the weapon and that he did not flee or resist the officers.

Counsel also asserted that, since the time that defendant was taken into custody, his son was born,

which gave defendant “purpose and *** reason to lead a life different than the criminal life that he

was born into.” Counsel argued that being released on home confinement was sufficient to ensure

the safety of the community and defendant’s presence at future court dates. Counsel further argued

that, if released, defendant was already subject to monitoring by the Department of Corrections

due to his parole status, which counsel argued would further ensure the safety of the community.

Counsel also asserted that it was “important[ ] *** to note” that defendant had bail set previously

in an amount that was “too high for a person of the defendant’s means” but was “not unreasonably

high.”

¶7 In ruling, the court rejected the defense’s argument that he was not committing a crime at

the time he was approached by officers, explaining that the position was “clearly at odds with what

the State put on the record,” that defendant was armed with a “pistol with an extended magazine

3
No. 1-23-2482B

with 33 live rounds in that extended clip. That would certainly be a violation of the terms of the

parole and the law, the defendant being a convicted felon.”

¶8 The court found that the offense of being an armed habitual criminal was a detainable

offense and that the State’s proffer “certainly indicates to this court a clear danger to the public at

large.” In particular, the court found that defendant’s “willingness to be a in a public place, a gas

station, as a convicted felon” with a “pistol with that extended magazine, or a high-capacity

magazine, certainly his criminal background, attempt[ed] first degree murder conviction and prior

weapons offenses indicate a clear and present danger to the community.” The court further found

that defendant’s conduct after being placed into custody, in attacking a hospital security guard,

also indicated “a clear danger to the community and that no means other than detention would

mitigate that danger to society.”

¶9 That same day, October 17, 2023, the court entered a written order that defendant be

detained. Defendant did not appeal that order.

¶ 10 Thereafter, on December 6, 2023, defendant, represented by new counsel, again filed a

petition for pretrial release. In his petition, defendant noted only that he had been arrested before

Public Act 101-652 (eff. Jan. 1, 2023), commonly known as the Pretrial Fairness Act, came into

effect and, on March 5, 2023, he had bail set for his custody at $150,000, which he had not been

able to pay, and consequently he remained in custody.

¶ 11 The court held a hearing on the defendant’s petition that same day. Defense counsel argued

that defendant had a young child and that, before he was detained, he was employed and he could

return to that job if released. Counsel stated that it was defendant’s belief that one of the predicate

offenses for his armed habitual conviction “was unconstitutional” and that counsel was “trying to

4
No. 1-23-2482B

verify that right now.” Counsel argued that defendant was not a danger to the community and that

electronic monitoring would mitigate any threat he poses.

¶ 12 In response, the State asked the court to incorporate its arguments from the October

hearing. The State extensively set out the same factual proffer regarding the recovery of a 9-

millimeter pistol with that extended magazine from defendant’s person and the subsequent battery

to the hospital security guard. Again, the State noted that defendant’s criminal background

included convictions for attempted murder and aggravated unlawful use of a weapon and that he

was on parole at the time of the offense. The State further asserted that it did not “see any

constitutional issues” with the predicate offenses, including “no Aguilar issues.” See People v.

Aguilar, 2013 IL 112116. Accordingly, the State requested that defendant continue to be detained.

¶ 13 In ruling, the court noted that it had considered the proffers of both parties and that,

“[b]ased on the defendant’s criminal background, and the facts of this case, the Court does find

that the defendant’s continued detention is necessary *** to provide for the safety of the

community.”

¶ 14 On December 19, 2023, defendant filed a notice of appeal seeking reversal of the trial

court’s December 6, 2023, “decision to continue to detain [defendant] pretrial” and requesting

“release or release with conditions.” Utilizing the form approved for Illinois Supreme Court Rule

604(h) (eff. Dec. 7, 2023) appeals by defendants, defendant’s claim of error consisted of four

checked boxes.

¶ 15 First, defendant checked the box contending that the “State failed to meet its burden of

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

defendant committed the offense(s) charged.”

5
No. 1-23-2482B

¶ 16 Second, defendant checked the box titled the “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.” On the

lines below, defendant asserted:

“With regards to the charge of Armed Habitual Criminal, the defendant *** is not

accused of using or brandishing the weapon. When he was stopped and questioned

he notified officers that he was armed. Additionally the aggravated battery is

physical contact of an insulting or provoking nature. The facts of both cases do not

tend to show that [defendant] is a risk to the public.”

¶ 17 Third, defendant checked the box labeled “[t]he State failed to meet its burden of proving

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 or the community, based on the

specific, articulable facts of the case, or defendant’s willful flight.” In the blanks below, defendant

stated that the State “did not prove that the imposition of conditions such as *** electronic

monit[o]ring or pretrial services curfew would not be sufficient to mitigate any threat to public

safety or possible flight on part of Defendant.”

¶ 18 Finally, defendant checked the box indicating that the “court erred in its determination that

no condition or combination of conditions would reasonably ensure the appearance of defendant

for later hearings or prevent the defendant from being charged with a subsequent felony or Class

A misdemeanor.” In the space below, defendant stated that the State “did not prove that the

imposition of conditions such as *** electronic monit[o]ring or pretrial services curfew would not

be sufficient to ensure Defendant would not be subsequently charged with a felony or Class A

misdemeanor.”

6
No. 1-23-2482B

¶ 19 The appeal is brought pursuant to Public Act 101-652 (eff. Jan. 1, 2023), commonly known

as the Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act or Pretrial Fairness Act

(Act). See 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 of Act as September

18, 2023).

¶ 20 The Act amended the Code of Criminal Procedure of 1963 by abolishing traditional

monetary bail in favor of pretrial release on personal recognizance or with conditions of release.

725 ILCS 5/110-1.5, 110-2(a) (West 2022). For qualifying offenses, upon filing a verified petition

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

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

qualifying offense (725 ILCS 5/110-6.1(e)(1) (West 2022)), (2) that the defendant’s pretrial

release poses 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)) or a likelihood of willful flight to avoid prosecution

(725 ILCS 5/110-6.1(a)(8), (e)(3) (West 2022)), and (3) that no condition or combination of

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

prevent the defendant’s willful flight from prosecution (725 ILCS 5/110-6.1(e)(3) (West 2022)).

¶ 21 Following the initial pretrial detention hearing, the statute also imposes a continuing

obligation for the court to assess whether continued detention is necessary at subsequent

appearances. Specifically, the statute provides that, at each subsequent appearance, the court must

find “that continued detention is necessary to 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 to prevent

the defendant’s willful flight from prosecution.” 725 ILCS 5/110-6.1(i-5) (West 2022); People v.

Long, 2023 IL App (5th) 230881, ¶ 15; People v. Stokes, 2024 IL App (1st) 232022-U, ¶ 36.

7
No. 1-23-2482B

“Although this determination necessarily entails consideration of the threat or flight risk

posed by a defendant and the potential mitigation of such threat or flight risk by conditions

of release, the [statute] does not require the court to again make specific findings that the

State proved the three propositions by clear and convincing evidence as required at the

initial hearing.” People v. Casey, 2024 IL App (3d) 230568, ¶ 13.

¶ 22 We recognize that there has been considerable disagreement among the five districts of the

appellate court as to which standard of review applies to pretrial release orders. See People v. Lee,

2024 IL App (1st) 232137, ¶ 21. However, we need not determine which standard applies in this

case, as the result would be the same under any standard.

¶ 23 In this appeal, defendant raises four claims of error. He contends that the State’s October

2023 petition was untimely and that the circuit court lacked “statutory authority to hear and

ultimately grant it.” Defendant also asserts that the State failed to meet its burden of proving the

three requirements for detention by clear and convincing evidence—that the proof is evident or

the presumption great that defendant committed the offense charged, that defendant poses a real

and present safety threat, and that no condition or combination of conditions of release could

mitigate that threat.

¶ 24 Before reaching the merits of this case, we must consider our jurisdiction to hear this

appeal. Although neither party has raised the issue of our jurisdiction, a reviewing court has an

independent duty to consider its own jurisdiction. See People v. Smith, 228 Ill. 2d 95, 103-04, 106

(2008) (“[T]he ascertainment of its own jurisdiction is one of the two most important tasks of an

appellate court panel when beginning the review of a case.”); People v. Lewis, 234 Ill. 2d 32, 36-

37 (2009).

8
No. 1-23-2482B

¶ 25 Pursuant to Illinois Supreme Court Rule 604(h)(2) (eff. Dec. 7, 2023), when a party seeks

to appeal an order granting or denying pretrial release, “[r]eview shall be by Notice of Appeal filed

in the circuit court within 14 days of the entry or denial of the order from which review is being

sought.” (Emphasis added.) The filing of a notice of appeal “is the jurisdictional step which

initiates appellate review.” Niccum v. Botti, Marinaccio, DeSalvo & Tameling, Ltd., 182 Ill. 2d 6,

7 (1998). An untimely notice of appeal deprives the reviewing court of jurisdiction. See Mitchell

v. Fiat-Allis, 158 Ill. 2d 143, 149-50 (1994); In re Marriage of Singel, 373 Ill. App. 3d 554, 556

(2007). Unless there is a properly filed notice of appeal, a reviewing court has no jurisdiction over

the appeal and is obliged to dismiss it. See People v. Anderson, 375 Ill. App. 3d 121, 131 (2006);

R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 159 (1998) (“A reviewing court must

be certain of its jurisdiction prior to proceeding in a cause of action.”).

¶ 26 In this case, the trial court entered a written order after the initial pretrial hearing on October

17, 2023. Defendant had the option to appeal that order (see 725 ILCS 5/110-6.1(j) (West 2022))

but chose not to do so. Instead, defendant’s notice of appeal in this case is from the December 6,

2023, order for his continued detention.

¶ 27 As stated above, at the initial hearing, the State has the burden to prove by clear and

convincing evidence (1) that the proof is evident or the presumption great 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 persons or the community or a likelihood of willful flight to

avoid prosecution, and (3) that no condition or combination of conditions can mitigate the real and

present threat to the safety of any person or the community or prevent the defendant’s willful flight

from prosecution. 725 ILCS 5/110-6.1 (West 2022). At subsequent hearings, however, the court

is not obligated to make the same findings, and instead, the court must find “that continued

9
No. 1-23-2482B

detention is necessary to 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 to prevent the defendant’s

willful flight from prosecution.” 725 ILCS 5/110-6.1(i-5) (West 2022).

¶ 28 The issues that defendant purports to appeal—the timeliness of the State’s petition for

detention and whether the trial court properly found that the State had proven the three

requirements for detention—are issues arising from the trial court’s October 17, 2023, order, which

this court lacks jurisdiction to review. See Secura Insurance Co. v. Illinois Farmers Insurance Co.,

232 Ill. 2d 209, 213, 217-18 (2009) (the timely filing of a notice of appeal is “both jurisdictional

and mandatory,” and appellate courts lack “the authority to excuse the filing requirements of the

supreme court rules governing appeals”). Accordingly, we dismiss the defendant’s appeal to the

extent that it challenges the October order.

¶ 29 Defendant, however, asks us to review the timeliness of the State’s petition “under plain

error or ineffective assistance of counsel.” He contends that, even if counsel “did not adequately

raise this issue before the trial court,” this court should review the issue because “[p]lain errors or

defects affecting substantial rights may be noticed although they were not brought to the attention

of the trial court,” citing Illinois Supreme Court Rule 615. The problem, however, is not that the

error was not brought to the attention of the trial court but that the defendant did not timely appeal,

depriving this court of jurisdiction to consider such a claim, even under plain error. In support of

his contention that plain error review should apply, defendant cites People v. Smith, 2016 IL App

(1st) 140496, ¶ 15; People v. Vingara, 2023 IL App (5th) 230698, ¶ 23; and People v. Brown, 2023

IL App (1st) 231890, ¶ 12. However, in each of those cases, there was no jurisdictional impediment

to considering the defendant’s claim, because the defendants timely appealed.

10
No. 1-23-2482B

¶ 30 Defendant also briefly asks this court to review the timeliness of the State’s petition “under

*** ineffective assistance of counsel,” asserting that counsel was “ineffective for not moving to

strike the State’s petition.” Defendant, however, provides no authority for how counsel’s purported

ineffectiveness could allow this court to review his claim, and we are aware of no such authority.

To the contrary, where this court lacks jurisdiction over an appeal, we are obligated to dismiss it.

See Anderson, 375 Ill. App. 3d at 131 (“It is an incontrovertible rule that a reviewing court has no

jurisdiction over an appeal absent a properly filed notice of appeal ***.”).

¶ 31 This court does, however, have jurisdiction to review the December 6, 2023, order

requiring defendant’s continued detention, for which defendant filed a timely notice of appeal.

Accordingly, the only issue properly before this court is the trial court’s finding “that continued

detention is necessary to 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.” 725 ILCS 5/110-6.1(i-5) (West

2022).

¶ 32 At the December 6, 2023, hearing on defendant’s continued detention, the court heard

arguments from defense counsel that defendant had a young child and that he was employed and

could return to that job if released. The State asked the court to incorporate its arguments from the

October hearing and extensively set forth the factual basis for defendant’s charges of being an

armed habitual criminal and the subsequent aggravated battery to the hospital security guard. The

State also reminded the court of defendant’s criminal background and the fact that he was on parole

at the time of the offense.

¶ 33 In ruling, the court noted that it had considered the proffers of both parties and that,

“[b]ased on the defendant’s criminal background, and the facts of this case, the Court does find

11
No. 1-23-2482B

that the defendant’s continued detention is necessary *** to provide for the safety of the

community.”

¶ 34 Based on the circumstances presented here, we find no error in the trial court’s

determination that continued detention was necessary. The record shows that defendant has a

significant criminal history, which includes attempted murder and aggravated unlawful use of a

weapon. Moreover, the firearm that was found in defendant’s waistband had an extended 33-round

magazine. Defendant possessed that weapon in a public place, and he was on parole at the time of

his arrest. The trial court specifically enunciated that the decision to detain was based on “the facts

of this case.”

¶ 35 Defendant, however, contends that the court erred in finding him dangerous because he

was “not accused of using or brandishing the weapon.” However, the armed habitual criminal

offense, which defendant is alleged to have committed, is specifically aimed at the dangers

associated with repeat felons possessing firearms. See Lee, 2024 IL App (1st) 232137, ¶ 28 (citing

People v. Martin, 2018 IL App (1st) 152249, ¶ 23). Moreover, defendant, as a convicted felon, is

explicitly prohibited from possessing a firearm. People v. Davis, 2023 IL App (1st) 231856, ¶ 28

(“[c]onvicted felons may not possess firearms” (citing 720 ILCS 5/24-1.1 (West 2022))).

Accordingly, defendant’s possession of a firearm “goes directly against the legislature’s stated

purpose of promoting and protecting the safety of the public from the unlawful possession of

firearms by certain individuals.” Davis, 2023 IL App (1st) 231856, ¶ 28 (citing 430 ILCS 65/1

(West 2022)). Additionally, the record reveals that defendant was carrying the loaded gun with an

extended clip in his waistband. See People v. Ross, 229 Ill. 2d 255, 275 (2008) (explaining that

“loaded guns” are part of a category of weapons that are “dangerous per se”).

12
No. 1-23-2482B

¶ 36 Moreover, defendant was on parole at the time that he was found in possession of the

firearm. Defendant’s history of failing to abide by prior conditions of release placed upon him, by

possessing a weapon while prohibited from doing so, further suggests that continued detention is

necessary to avoid the safety risk posed by defendant. See Lee, 2024 IL App (1st) 232137, ¶ 33.

¶ 37 Finally, the record shows that defendant punched a hospital security guard in the face and

tried to bite him. Although defendant attempts to diminish those actions by arguing that he is only

accused of making “physical contact of an insulting or provoking nature,” the circumstances of

that charge show that it was a violent act, lending further support to the conclusion that defendant

poses a safety threat to the community.

¶ 38 Considering the record as a whole, including defendant’s significant criminal background,

his possession of a firearm in a public place and with an extended clip when he was prohibited

from doing so under prior conditions of release, and his violent attack of a hospital security guard,

we find no error in the trial court’s conclusion that continued detention is necessary to avoid a real

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

articulable facts of this case.

¶ 39 For the foregoing reasons, the portion of this appeal purporting to challenge the October

17, 2023, initial detention order is dismissed. The trial court’s order of December 6, 2023, requiring

defendant’s continued detention, is affirmed.

¶ 40 Appeal dismissed in part and affirmed in part.

13
No. 1-23-2482B

People v. Hongo, 2024 IL App (1st) 232482

Decision Under Review: Appeal from the Circuit Court of Cook County, Nos. 23-CR-
380001, 23-CR-380401; the Hon. Thomas J. Byrne, Judge,
presiding.

Attorneys Sharone R. Mitchell Jr., Public Defender, of Chicago (Rebecca
for A. Cohen, Assistant Public Defender, of counsel), for appellant.
Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Noah
for Montague, Assistant State’s Attorney, of counsel), for the
Appellee: People.

14