2023 IL App (4th) 220357 FILED NO. 4-22-0357 January 5, 2023 Carla Bender IN THE APPELLATE COURT 4th District Appellate Court, IL OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Mason County KRISTEN R. ANDERSON, ) No. 18CF137 Defendant-Appellant. ) ) Honorable ) Alan D. Tucker, ) Judge Presiding.
JUSTICE CAVANAGH delivered the judgment of the court, with opinion. Justices Turner and Zenoff concurred in the judgment and opinion.
OPINION ¶1 Defendant, Kristen R. Anderson, pleaded guilty to a drug offense, for which the
circuit court of Mason County sentenced her to probation. After she violated conditions of her
probation, the court revoked probation and resentenced her to imprisonment. In the probation
revocation case, she raised a pro se claim that plea counsel rendered ineffective assistance in the
underlying proceeding by advising her to plead guilty. Pursuant to People v. Krankel, 102 Ill. 2d
181 (1984), the court appointed substitute defense counsel. After performing an investigation,
substitute counsel advised the court that the pro se claim lacked merit. The court discharged
substitute counsel and on the ground of untimeliness, struck the pro se motion in which defendant
had raised her claim of ineffective assistance. Defendant appeals from the judgment in the
probation revocation case, arguing that the court and substitute counsel failed to satisfy Krankel.
We hold that the court was correct to strike the pro se motion, for the court lacked jurisdiction to consider it. Because the court likewise lacked jurisdiction to appoint substitute counsel in response
to the pro se motion, the order in which the court did so is void. Therefore, we vacate the order
that appointed substitute counsel.
¶2 I. BACKGROUND
¶3 On June 6, 2019, defendant entered a fully negotiated guilty plea to one count of
possessing, with the intent to deliver, methamphetamine weighing more than 5 grams but less than
15 grams, a Class 1 felony. See 720 ILCS 646/55(a)(1), (2)(B) (West 2018). That day, pursuant to
the plea agreement, the circuit court sentenced her to probation for 30 months.
¶4 On October 20, 2021, after hearing evidence on petitions by the State to revoke
probation, the circuit court found that defendant had violated conditions of her probation.
Therefore, the court revoked probation and on January 6, 2022, resentenced her to four years’
imprisonment.
¶5 On January 20, 2022, plea counsel filed a motion to reconsider the sentence. In this
motion, plea counsel argued that, in view of the hardship on defendant’s family, her lack of a prior
criminal history, and her medical conditions, four years’ imprisonment was too severe a
punishment.
¶6 On January 24, 2022, defendant filed a pro se motion titled “Supplemental
Post-Sentencing Motion Alleging Ineffective Assistance of Counsel.” Therein, she claimed that
plea counsel had rendered ineffective assistance by “erroneously advis[ing] her to *** plead guilty
to a more onerous crime after a less than reasonable investigation of the lab reports, disclosed by
the State.” The motion continued, “Despite the State’s disclosure of the lab reports to counsel
showing only 4.3 grams of meth[amphetamine], counsel advised [d]efendant to plead guilty to a
crime requiring the State to prove 5 to 15 grams of meth[amphetamine].” In other words, judging
-2- by the laboratory report, defendant was guilty of the Class 2 felony of “possess[ing] with intent to
deliver less than 5 grams of methamphetamine or a substance containing methamphetamine” (see
id. § 55(a)(2)(A)) instead of the Class 1 felony (5 to 15 grams) to which defense counsel had
advised her to plead guilty (see id. § 55(a)(2)(B)).
¶7 On January 27, 2022, the circuit court appointed substitute counsel pursuant to
Krankel.
¶8 On March 1, 2022, defendant filed a further pro se motion, this one titled “Motion
to Withdraw Guilty Plea Based Upon Discovery/Brady Violation.” In this motion, she took the
position that (contrary to her earlier claim) the State had not disclosed the laboratory report to the
defense. This lack of disclosure, she alleged, was a violation of Brady v. Maryland, 373 U.S. 83,
87 (1963), and made her guilty plea inadequately informed and invalid.
¶9 In a hearing on March 31, 2022, substitute counsel informed the circuit court that,
after reviewing the discovery materials, he did “not believe that [plea counsel] was ineffective.”
In reviewing the police reports, substitute counsel had counted six times when defendant “admitted
to delivering more than 5 grams of methamphetamine, including the statement in the police reports
[‘]I sold them 6 grams of dope.[’] ” Also, substitute counsel had read the transcript of the guilty
plea hearing, in which defendant personally expressed agreement with the factual basis that the
methamphetamine amounted to six grams. “So,” substitute counsel concluded, “in my
investigation, I believe that [plea counsel] was effective, did provide effective counsel, and that
the Krankel should be denied.”
¶ 10 Defendant responded, “Well, your Honor, I can’t agree with that. I may have
believed that there was that much there, but the lab reports clearly indicate that there was not.
Obviously I was using it, under the influence of drugs, selling drugs, making bad decisions.”
-3- ¶ 11 Substitute counsel retorted, “Your Honor, just to address the state police lab report,
I believe [plea counsel] stated she had not previously seen that prior to the guilty plea. I believe
that is the basis for the motion. So I don’t think that supports the Krankel violation.”
¶ 12 After discharging substitute counsel, the circuit court decided that any motion
having to do with the guilty plea of June 6, 2019, was untimely. The court reminded defendant
that, in the guilty plea hearing, he “advised [her,] on the record[,] that [she] had 30 days in which
to file [her] motion to withdraw [her] plea of guilty.” Those 30 days, the court observed, “have
long since passed.” Accordingly, while acknowledging that defendant “may have other remedies,”
the court struck and explicitly disregarded the untimely pro se motions. Specifically, the court said,
“The Court will strike and disregard the January 26 [sic], 2022, supplemental post-sentencing
motion alleging ineffective assistance of counsel, as well as the motion to withdraw guilty plea
based on discovery/Brady violation filed March 1st of 2022.”
¶ 13 Then, after hearing arguments on plea counsel’s motion to reconsider the sentence,
the circuit court denied that motion, refusing to reduce the sentence of four years’ imprisonment.
¶ 14 II. ANALYSIS
¶ 15 Defendant appeals because, as she puts it, no “appropriate evidentiary hearing” was
held on her pro se claim that plea counsel had rendered ineffective assistance. Instead of
representing her, defendant complains, substitute counsel served as “an investigator for the court.”
After performing his investigation, substitute counsel argued against the pro se claim, just as a
prosecutor might have done. Advocating against the claim of ineffective assistance was, in
defendant’s view, further ineffective assistance. Consequently, defendant urges us to remand this
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2023 IL App (4th) 220357 FILED NO. 4-22-0357 January 5, 2023 Carla Bender IN THE APPELLATE COURT 4th District Appellate Court, IL OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Mason County KRISTEN R. ANDERSON, ) No. 18CF137 Defendant-Appellant. ) ) Honorable ) Alan D. Tucker, ) Judge Presiding.
JUSTICE CAVANAGH delivered the judgment of the court, with opinion. Justices Turner and Zenoff concurred in the judgment and opinion.
OPINION ¶1 Defendant, Kristen R. Anderson, pleaded guilty to a drug offense, for which the
circuit court of Mason County sentenced her to probation. After she violated conditions of her
probation, the court revoked probation and resentenced her to imprisonment. In the probation
revocation case, she raised a pro se claim that plea counsel rendered ineffective assistance in the
underlying proceeding by advising her to plead guilty. Pursuant to People v. Krankel, 102 Ill. 2d
181 (1984), the court appointed substitute defense counsel. After performing an investigation,
substitute counsel advised the court that the pro se claim lacked merit. The court discharged
substitute counsel and on the ground of untimeliness, struck the pro se motion in which defendant
had raised her claim of ineffective assistance. Defendant appeals from the judgment in the
probation revocation case, arguing that the court and substitute counsel failed to satisfy Krankel.
We hold that the court was correct to strike the pro se motion, for the court lacked jurisdiction to consider it. Because the court likewise lacked jurisdiction to appoint substitute counsel in response
to the pro se motion, the order in which the court did so is void. Therefore, we vacate the order
that appointed substitute counsel.
¶2 I. BACKGROUND
¶3 On June 6, 2019, defendant entered a fully negotiated guilty plea to one count of
possessing, with the intent to deliver, methamphetamine weighing more than 5 grams but less than
15 grams, a Class 1 felony. See 720 ILCS 646/55(a)(1), (2)(B) (West 2018). That day, pursuant to
the plea agreement, the circuit court sentenced her to probation for 30 months.
¶4 On October 20, 2021, after hearing evidence on petitions by the State to revoke
probation, the circuit court found that defendant had violated conditions of her probation.
Therefore, the court revoked probation and on January 6, 2022, resentenced her to four years’
imprisonment.
¶5 On January 20, 2022, plea counsel filed a motion to reconsider the sentence. In this
motion, plea counsel argued that, in view of the hardship on defendant’s family, her lack of a prior
criminal history, and her medical conditions, four years’ imprisonment was too severe a
punishment.
¶6 On January 24, 2022, defendant filed a pro se motion titled “Supplemental
Post-Sentencing Motion Alleging Ineffective Assistance of Counsel.” Therein, she claimed that
plea counsel had rendered ineffective assistance by “erroneously advis[ing] her to *** plead guilty
to a more onerous crime after a less than reasonable investigation of the lab reports, disclosed by
the State.” The motion continued, “Despite the State’s disclosure of the lab reports to counsel
showing only 4.3 grams of meth[amphetamine], counsel advised [d]efendant to plead guilty to a
crime requiring the State to prove 5 to 15 grams of meth[amphetamine].” In other words, judging
-2- by the laboratory report, defendant was guilty of the Class 2 felony of “possess[ing] with intent to
deliver less than 5 grams of methamphetamine or a substance containing methamphetamine” (see
id. § 55(a)(2)(A)) instead of the Class 1 felony (5 to 15 grams) to which defense counsel had
advised her to plead guilty (see id. § 55(a)(2)(B)).
¶7 On January 27, 2022, the circuit court appointed substitute counsel pursuant to
Krankel.
¶8 On March 1, 2022, defendant filed a further pro se motion, this one titled “Motion
to Withdraw Guilty Plea Based Upon Discovery/Brady Violation.” In this motion, she took the
position that (contrary to her earlier claim) the State had not disclosed the laboratory report to the
defense. This lack of disclosure, she alleged, was a violation of Brady v. Maryland, 373 U.S. 83,
87 (1963), and made her guilty plea inadequately informed and invalid.
¶9 In a hearing on March 31, 2022, substitute counsel informed the circuit court that,
after reviewing the discovery materials, he did “not believe that [plea counsel] was ineffective.”
In reviewing the police reports, substitute counsel had counted six times when defendant “admitted
to delivering more than 5 grams of methamphetamine, including the statement in the police reports
[‘]I sold them 6 grams of dope.[’] ” Also, substitute counsel had read the transcript of the guilty
plea hearing, in which defendant personally expressed agreement with the factual basis that the
methamphetamine amounted to six grams. “So,” substitute counsel concluded, “in my
investigation, I believe that [plea counsel] was effective, did provide effective counsel, and that
the Krankel should be denied.”
¶ 10 Defendant responded, “Well, your Honor, I can’t agree with that. I may have
believed that there was that much there, but the lab reports clearly indicate that there was not.
Obviously I was using it, under the influence of drugs, selling drugs, making bad decisions.”
-3- ¶ 11 Substitute counsel retorted, “Your Honor, just to address the state police lab report,
I believe [plea counsel] stated she had not previously seen that prior to the guilty plea. I believe
that is the basis for the motion. So I don’t think that supports the Krankel violation.”
¶ 12 After discharging substitute counsel, the circuit court decided that any motion
having to do with the guilty plea of June 6, 2019, was untimely. The court reminded defendant
that, in the guilty plea hearing, he “advised [her,] on the record[,] that [she] had 30 days in which
to file [her] motion to withdraw [her] plea of guilty.” Those 30 days, the court observed, “have
long since passed.” Accordingly, while acknowledging that defendant “may have other remedies,”
the court struck and explicitly disregarded the untimely pro se motions. Specifically, the court said,
“The Court will strike and disregard the January 26 [sic], 2022, supplemental post-sentencing
motion alleging ineffective assistance of counsel, as well as the motion to withdraw guilty plea
based on discovery/Brady violation filed March 1st of 2022.”
¶ 13 Then, after hearing arguments on plea counsel’s motion to reconsider the sentence,
the circuit court denied that motion, refusing to reduce the sentence of four years’ imprisonment.
¶ 14 II. ANALYSIS
¶ 15 Defendant appeals because, as she puts it, no “appropriate evidentiary hearing” was
held on her pro se claim that plea counsel had rendered ineffective assistance. Instead of
representing her, defendant complains, substitute counsel served as “an investigator for the court.”
After performing his investigation, substitute counsel argued against the pro se claim, just as a
prosecutor might have done. Advocating against the claim of ineffective assistance was, in
defendant’s view, further ineffective assistance. Consequently, defendant urges us to remand this
case for further proceeding pursuant to Krankel—and to include, with our remand, directions that
new substitute counsel be appointed and that he or she follow the procedures in People v. Downs,
-4- 2017 IL App (2d) 121156-C, ¶ 94, and People v. Kyles, 2020 IL App (2d) 180087, ¶ 48. That is,
if the new substitute counsel is unable to make a nonfrivolous argument in support of the pro se
claim of ineffective assistance of plea counsel, he or she should file a written motion for
withdrawal that explains why the claim lacks merit.
¶ 16 The State counters that, essentially, defendant is challenging her guilty plea and
that because she never complied with Illinois Supreme Court Rule 604(d) (eff. July 1, 2017), her
challenge is barred. Under Rule 604(d), “[n]o appeal from a judgment entered upon a plea of guilty
shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files
in the trial court *** a motion to withdraw the plea of guilty and vacate the judgment.” Id. The
final judgment in a criminal case is the sentence. People v. Abdullah, 2019 IL 123492, ¶ 19. On
June 6, 2019, immediately after defendant entered her negotiated guilty plea, the circuit court
sentenced her to 30 months of probation. As the court admonished her in the guilty-plea hearing,
she could appeal from that judgment only if, within 30 days, she filed a motion to withdraw her
guilty plea. She never did so.
¶ 17 Actually, the problem with this appeal goes deeper than noncompliance with Rule
604(d). The circuit court lacked jurisdiction to hold the Krankel proceedings. As the supreme court
made clear in People v. Patrick, 2011 IL 111666, ¶ 39, a defendant does not have forever to raise
a Krankel claim. The supreme court noted that, “once a notice of appeal has been filed, the trial
court loses jurisdiction of the case and may not entertain a Krankel motion raising a pro se claim
of ineffective assistance of counsel.” Id. The filing of a notice of appeal is not the only way a
circuit court can lose jurisdiction. Absent the filing of a timely postjudgment motion, a circuit
court’s jurisdiction automatically expires 30 days after the final judgment. People v. Lake, 2020
IL App (1st) 170309, ¶ 14. For that reason, “[i]n an appeal from an order revoking a defendant’s
-5- probation, the court cannot consider the correctness of the underlying judgment of conviction
unless that judgment is void.” People v. Dieterman, 243 Ill. App. 3d 838, 841 (1993). Defendant
does not claim that the underlying judgment of conviction is void. Rather, in this probation
revocation appeal, she claims that, because plea counsel rendered ineffective assistance, the
underlying judgment of conviction is incorrect. Because the circuit court lacked jurisdiction to
entertain this Krankel claim, the court was right to strike the pro se motion raising this claim.
¶ 18 In addition, we vacate the order of January 27, 2022, appointing substitute counsel
pursuant to Krankel. See People v. Shunick, 2022 IL App (4th) 220019, ¶ 24. We have an
independent duty to vacate void orders. See In re N.G., 2018 IL 121939, ¶ 18. In this probation
revocation case, the circuit court lacked jurisdiction to evaluate the correctness of the underlying
judgment of conviction. See Dieterman, 243 Ill. App. 3d at 841. Substitute counsel was appointed
to evaluate the correctness of the underlying judgment of conviction by determining whether it
resulted from ineffective assistance. That purpose was beyond the circuit court’s jurisdiction in a
probation revocation proceeding. Hence, the order appointing substitute counsel is void. See
People v. Bailey, 2014 IL 115459, ¶ 28.
¶ 19 III. CONCLUSION
¶ 20 For the foregoing reasons, we vacate the circuit court’s order of January 27, 2022,
appointing substitute counsel pursuant to Krankel.
¶ 21 Order vacated.
-6- People v. Anderson, 2023 IL App (4th) 220357
Decision Under Review: Appeal from the Circuit Court of Mason County, No. 18-CF-137; the Hon. Alan Tucker, Judge, presiding.
Attorneys James E. Chadd, Catherine K. Hart, and Joshua Scanlon, of State for Appellate Defender’s Office, of Springfield, for appellant. Appellant:
Attorneys Zachary A. Bryant, State’s Attorney, of Havana (Patrick Delfino, for David J. Robinson, and Douglas Malcolm, of State’s Attorneys Appellee: Appellate Prosecutor’s Office, of counsel), for the People.
-7-