People v. Gurlly

2023 IL App (5th) 230830-U
NOTICE
NOTICE
Decision filed 12/08/23. The
This order was filed under
text of this decision may be NO. 5-23-0830
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the

Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Bond County.
)
v. ) No. 22-CF-17
)
DEMARCUS GURLLY, ) Honorable
) Christopher J.T. Bauer,
Defendant-Appellant. ) Judge, presiding.
_____________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court.
Justices Welch and Cates concurred in the judgment.

ORDER

¶1 Held: We vacate the circuit court’s detention order where the State filed an untimely
petition to detain.

¶2 The defendant, Demarcus Gurlly, appeals the trial court’s written order of September 19,

2023, denying the defendant’s pretrial release pursuant to Public Act 101-652, § 10-255 (eff. Jan.

1, 2023), commonly known as the Safety, Accountability, Fairness and Equity-Today (SAFE-T)

Act (Act). 1 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 as September

18, 2023). Because the defendant was arrested and detained prior to the date the Act went into

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The Act has been 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 public act. See Rowe v. Raoul, 2023 IL
129248, ¶ 4 n.1.
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effect, this appeal presents a narrow issue relevant to only those defendants who were arrested and

detained prior to the effective date of the Act. For the following reasons, we vacate the circuit

court’s detention order of September 19, 2023.

¶3 I. BACKGROUND

¶4 On February 14, 2022, the defendant was charged by information with 10 counts of first

degree murder and one count of obstructing justice. On the same date, the circuit court set the

defendant’s bond at $1 million, with no additional conditions of release. The defendant remained

in pretrial detention.

¶5 On September 12, 2023, six days before the Act became effective, the State filed a verified

petition to deny defendant pretrial release pursuant to section 110-6.1 of the Code of Criminal

Procedure of 1963 (Code) (725 ILCS 5/110-6.1 (West 2022)). The State’s petition was called for

hearing on September 19, 2023. The defendant’s counsel did not object to the filing of the petition.

At the conclusion of the hearing, the circuit court entered an order denying the defendant pretrial

release. The defendant filed a timely notice of appeal on October 2, 2023.

¶6 II. ANALYSIS

¶7 On appeal, the defendant argues that the circuit court erred when it granted the State’s

petition to detain him because the State did not have the authority to file a petition to deny pretrial

release due to the timing requirements of section 110-6.1(c)(1) (id. § 110-6.1(c)(1)). The defendant

acknowledges that his attorney did not object to the State’s petition and that this claim of error was

not raised in his notice of appeal. The defendant seeks review of the claimed error under the second

prong of the plain-error doctrine. Under the second prong of plain-error review, a reviewing court

may consider a forfeited error when the error is so serious that it deprives the defendant of a

substantial right. People v. Herron, 215 Ill. 2d 167, 170 (2005). In the alternative, the defendant

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contends that his counsel’s failure to object to the State’s petition constituted ineffective assistance

of counsel.

¶8 Concerning the defendant’s first argument, this court recently addressed this issue in

People v. Rios, 2023 IL App (5th) 230724. This court determined that the plain language of section

110-6.1(c)(1) (725 ILCS 5/110-6.1(c)(1) (West 2022)) set forth a deadline for the State to file a

petition to detain. Specifically, this court determined that:

“The State may file a petition to detain at the time of the defendant’s first appearance before

a judge; no prior notice to the defendant is required. Alternatively, the State may file a

petition to detain the defendant within 21 calendar days after the arrest and release of the

defendant; however, reasonable notice is to be provided to the defendant under this

circumstance.” Rios, 2023 IL App (5th) 230724, ¶ 10.

¶9 This court went on to find that the exceptions to the above timing requirement set forth in

section 110-6 (725 ILCS 5/110-6 (West 2022)) were not applicable to the defendant since the

defendant had not been released following his arrest and no new offenses had been alleged. Rios,

2023 IL App (5th) 230724, ¶ 12. As such, this court determined in Rios that the State’s petition to

detain pursuant to section 110-6.1 was untimely, and that the circuit court did not have the authority

to detain the defendant pursuant to the untimely petition. Id. For the reasons set forth in Rios, we

make the same determination in this matter and find that the State’s petition was untimely, and

that the circuit court did not have the authority to detain the defendant pursuant to the untimely

petition.

¶ 10 This court, in Rios, went on to find that the defendant fell within section 110-7.5(b) of the

Code (725 ILCS 5/110-7.5(b) (West 2022)), as he was a person who remained in pretrial detention,

on or after January 1, 2023, after having been ordered released with pretrial conditions. Rios, 2023

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IL App (5th) 230724, ¶ 14. Section 110-7.5(b) states that such a defendant “shall be entitled to a

hearing under subsection (e) of Section 110-5.” 725 ILCS 5/110-7.5(b) (West 2022). This court

further found that, in reviewing and analyzing sections 110-6.1(c)(1), 110-6, and 110-5(e) (id.

§§ 110-6.1(c)(1), 110-6, 110-5(e)), along with one another and the entire Code, defendants, such

as the defendant in Rios and the defendant in this matter, have the following two options:

“Under sections 110-7.5(b) and 110-5(e), a defendant may file a motion seeking a hearing

to have their pretrial conditions reviewed anew. Alternatively, a defendant may elect to

stay in detention until such time as the previously set monetary security may be paid. A

defendant may elect this option so that they may be released under the terms of the original

bail.” Rios, 2023 IL App (5th) 230724, ¶ 16.

¶ 11 This court came to the above conclusion because, although the plain language of section

110-1.5 of the Code (725 ILCS 5/110-1.5 (West 2022)) abolished the requirement of posting a

monetary bail, it did not eliminate the option to post the previously ordered security, and some

defendants may prefer the second option, as opposed to requesting a hearing. Rios, 2023 IL App

(5th) 230724, ¶ 17. Accordingly, the defendant may elect to stand on his original pretrial condition

to post monetary bail or he may file a motion for hearing under section 110-5(e).

¶ 12 We find that the circuit court erred in granting the State’s untimely motion to deny pretrial

release and that the error affected substantial rights of the defendant under the second prong of the

plain-error doctrine. In light of this determination, we need not address the defendant’s remaining

issues on appeal. Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967); People v. Piatkowski, 225 Ill. 2d 551, 564-

65 (2007); People v. Swan, 2023 IL App (5th) 230766, ¶ 26. Accordingly, the detention order

issued September 19, 2023, is vacated, and the original bond is reinstated. On remand, defendant

may elect to stand on the terms of his original pretrial conditions—an election that requires no

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action on his part—or he may file a motion for a hearing under section 110-5(e). Swan, 2023 IL

App (5th) 230766, ¶ 25.

¶ 13 III. CONCLUSION

¶ 14 For the reasons stated, we vacate the circuit court’s order granting the State’s petition to

detain and remand the matter back to the court for further proceedings.

¶ 15 Order vacated; cause remanded.

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