2017 IL App (5th) 130220 NOTICE Decision filed 08/01/17. The text of this decision may be changed NO. 5-13-0220 or corrected prior to the filing of a Petition for Rehearing or the IN THE disposition of the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Saline County. ) v. ) No. 11-CF-176 ) JAMES R. BRANCH, ) Honorable ) Todd D. Lambert, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________
JUSTICE CATES delivered the judgment of the court, with opinion. Justices Goldenhersh and Overstreet * concurred in the judgment and opinion.
OPINION
¶1 Defendant, James R. Branch, was convicted after a jury trial of three counts of
predatory criminal sexual assault of a child and was sentenced by the circuit court of Saline
County to 15 years’ imprisonment on each count, to be served consecutively. Defendant
argues on appeal that the State failed to prove him guilty of one count of predatory criminal
sexual assault in that there was no evidence of digital penetration. He also asserts he was
denied a fair trial because of prosecutorial misconduct and ineffective assistance of counsel.
* Justice Schwarm was originally assigned to participate in this case. Justice Overstreet was substituted on the panel subsequent to Justice Schwarm’s retirement and has read the briefs and listened to the recording of oral argument. 1 He further contends he is entitled to a Krankel hearing because he alleged in his prepared
statement in allocution that he was denied effective assistance of trial counsel, but the court
made no inquiry into the allegations. See People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d
1045 (1984). As a supplemental argument, defendant argues the court erred in failing to
suppress a statement he allegedly made to a detective upon being advised he was under
arrest. We affirm in part and remand in part.
¶2 Between the dates of May 1, 2010, and May 4, 2011, L.M.D., the victim, was
allegedly subjected to various sexual acts in a trailer, where defendant resided. At the time of
the alleged incidents, L.M.D. was seven or eight years old. Defendant was ultimately
charged with one count of performing an act of cunnilingus upon the victim, one count of
placing his finger in her vagina, and one count of having the victim perform an act of fellatio
on him.
¶3 On May 4, 2011, L.M.D. was removed from her parents’ home because of the
parents’ drug usage and because they were allowing a family member who was a registered
sex offender to live in their home. DCFS placed L.M.D. in the home of a woman named
Cheryl, who had previously lived with L.M.D.’s father for 18 years but had never married
him. Cheryl and L.M.D.’s father had a son, the victim’s stepbrother, who was then 27 years
old. Because of Cheryl’s long-term relationship with the family, she had known L.M.D.
since she was a baby. At the time L.M.D. was placed with Cheryl, she was married to
another individual and had two daughters close in age to L.M.D.
¶4 A couple of weeks after L.M.D. was placed with Cheryl, L.M.D. was taking a bath
with one of Cheryl’s daughters. L.M.D. told Cheryl’s daughter that defendant made L.M.D. 2 play with him and had rubbed his thing against her. Cheryl overheard the conversation and
stopped it. She then called L.M.D.’s caseworker. Cheryl reported that subsequent to Cheryl
reporting the statements made by L.M.D., Cheryl also noticed that L.M.D. started acting out
sexually with pillows and blankets. Prior to L.M.D. being placed in Cheryl’s home, she also
testified that she had seen L.M.D. and defendant around town together. Cheryl further related
that defendant, on several occasions, had previously brought L.M.D. to Cheryl’s house to
play with her daughters. At no time did L.M.D. ever mention any abuse, and she always
seemed fine around defendant. Cheryl stated that defendant did for L.M.D. what her parents
would not, and she agreed that the living conditions in L.M.D.’s home were “pretty terrible.”
¶5 After conducting several interviews with L.M.D., Department of Children and Family
Services (DCFS) investigators believed L.M.D.’s statements were credible and consistent
with the information obtained from Cheryl. L.M.D. testified that defendant often bought her
toys, clothes, shoes, and food. He would come to her house, and they would ride bicycles to
the park, the pool, fast food restaurants, and Walmart. L.M.D. further testified that defendant
also took her to his trailer, where they would watch “dirty stuff” on television. She also
related various sex acts he performed on her, or had her do to him, while they were at his
trailer. She claimed that she told him to stop, but he would not do so, and that no one else
touched her this way. There was no physical evidence corroborating L.M.D.’s allegations of
sexual abuse.
¶6 Defendant denied the allegations against him but admitted he had taken L.M.D. to
various places around town. He confirmed that he bought things for her because he felt sorry
for her and because he was trying to take care of her. He related that he had known L.M.D. 3 since she was two years old and felt somewhat responsible for her. According to defendant,
L.M.D.’s parents did not spend any money on her and often came to him for food or money.
The parents lived in a trailer near him, and they were the only people he socialized with other
than his own family. He also admitted to having had a sexual relationship with both parents.
¶7 The detective and investigator who interviewed defendant claimed he admitted to
having L.M.D. alone at his trailer. Defendant countered he never made such a statement to
them or to anyone and testified he never took L.M.D. alone to his trailer, in spite of what
others said. Defendant further claimed L.M.D. could not have watched pornographic movies
at his trailer because he had not had any electricity there since 2007. He did see L.M.D.
watching pornographic movies at her own home, however, while her parents were present.
He had also seen the sex offender who was living with them go into L.M.D.’s bedroom and
close the door when she was inside the room. L.M.D., however, told investigators that when
the offender moved in, she had to give up her bedroom to him and his girlfriend. L.M.D. was
then forced to stay in the living room. Defendant also claimed that he had called DCFS about
the condition in L.M.D.’s home sometime in 2009, but nothing came of it. The investigator
for DCFS had no record of any such contact from defendant. Defendant continued to assert
he had never sexually assaulted L.M.D., nor had he done anything inappropriate with any
child.
¶8 The jury chose to believe L.M.D. and returned guilty verdicts on all three counts.
Defendant subsequently was sentenced to consecutive 15-year terms of imprisonment.
Defendant appeals his conviction claiming several instances of prosecutorial misconduct and
ineffective assistance of counsel, which denied him a fair trial. He also contends one count of 4 predatory criminal sexual assault should be reduced to aggravated criminal sexual abuse
because the evidence failed to prove he digitally penetrated the victim’s vagina. Defendant
further finds fault with the court’s denial of his motion to suppress, as well as with the
court’s failure to conduct a Krankel hearing.
¶9 ANALYSIS
¶ 10 As previously stated, defendant was charged with three counts of predatory criminal
sexual assault of a child. One of those counts alleged that defendant knowingly committed an
act of sexual penetration with a victim who was under 13 years of age, in that he placed his
finger in the victim’s vagina. See 720 ILCS 5/12-14.1(a)(1) (West 2010). Defendant first
argues on appeal that his conviction for predatory criminal sexual assault must be reduced to
aggravated criminal sexual abuse because the evidence failed to prove that defendant
digitally penetrated L.M.D.’s vagina, as alleged.
¶ 11 We initially note that the standard for reviewing the sufficiency of the evidence in a
criminal case is whether any rational trier of fact, after viewing the evidence in the light most
favorable to the prosecution, could have found the essential elements of the crime beyond a
reasonable doubt. People v. Wheeler, 226 Ill. 2d 92, 114, 871 N.E.2d 728, 740 (2007). We,
as a reviewing court, will not set aside a criminal conviction on the grounds of insufficient
evidence unless the proof is so improbable or unsatisfactory that there exists reasonable
doubt of the defendant’s guilt. People v. Maggette, 195 Ill. 2d 336, 353, 747 N.E.2d 339, 349
(2001). We further note that it is the function of the jury to assess the credibility of
witnesses, weigh the evidence presented, and resolve conflicts in, and draw reasonable
5 inferences from, the evidence. People v. Moss, 205 Ill. 2d 139, 164, 792 N.E.2d 1217, 1232
(2001).
¶ 12 A defendant is guilty of predatory criminal sexual assault of a child if the defendant
was 17 years of age or over and commits an act of sexual penetration with a victim who was
under 13 years of age when the act was committed. 720 ILCS 5/12-14.1(a)(1) (West 2010).
Sexual penetration means any intrusion, however slight, of any part of the body of one
person into the sex organ of another person. 720 ILCS 5/12-12(f) (West 2010). Whether
sexual penetration occurred is a question of fact to be determined by the trier of fact. People
v. Hillier, 392 Ill. App. 3d 66, 69, 910 N.E.2d 181, 184 (2009). The trier of fact is entitled to
draw all reasonable inferences from both circumstantial and direct evidence, including an
inference of penetration. Such an inference of penetration is unreasonable only if the victim
denies that penetration occurred. Hillier, 392 Ill. App. 3d at 69, 910 N.E.2d at 184. Here,
L.M.D. testified that defendant’s hand was rubbing her vagina at a time when her pants and
underwear were off. She further stated that defendant rubbed her front private part hard with
his hand and it hurt. L.M.D. never denied that digital penetration occurred at any point in the
proceedings, and in fact, told a forensic interviewer that defendant touched her with his
hands “in her you know what” (emphasis added), referring to her vaginal area. Testimony
from L.M.D. that defendant rubbed her vagina in the manner stated is sufficient to create a
reasonable inference of penetration, however slight. See Hillier, 392 Ill. App. 3d at 69, 910
N.E.2d at 184-85. Taking the evidence in the light most favorable to the prosecution, there
was sufficient evidence presented for the jury to reasonably infer that defendant placed part
6 of his hand or finger in L.M.D.’s vagina, thereby satisfying the elements for one count of
predatory criminal sexual assault of a child.
¶ 13 Defendant next argues on appeal that he was denied a fair trial because of
prosecutorial misconduct and ineffective assistance of counsel. Specifically, defendant
contends the prosecutor misled the jury, raised unsupported insinuations about defendant,
and improperly bolstered the complaining witness’s credibility, while defense counsel
repeatedly failed to object and failed to file a posttrial motion to preserve the issues for
appeal. Defendant points out that the jury’s assessment of the evidence came down to an
assessment of the credibility of the witnesses, given that there was no physical evidence
presented that a sexual assault had occurred. Consequently, defendant concludes that he was
prejudiced as a result of improper arguments, comments, and questions designed to bolster
the State’s case, all of which denigrated his defense. For the reasons that follow, we
conclude, based upon the limited review available under the circumstances, that there was no
prosecutorial misconduct and that defendant was not deprived of a fair trial.
¶ 14 Defendant initially contends that the detective and investigator who conducted
defendant’s interview at the police station both testified that defendant admitted, during
questioning, to taking L.M.D. to his trailer alone. Defendant claimed he never made such an
admission. The recording of defendant’s interview reveals, in fact, that defendant only
admitted to taking L.M.D. to the park and to his niece’s house so she could play. Defendant
did not mention his trailer. The recording of the interview, however, was not admitted at
trial, and defense counsel did not object to the trial testimony of the investigator or the
detective. No reason for the failure to introduce the recording is evident from the record. The 7 recording was admitted at the suppression hearing, which occurred some seven months
earlier than the trial. Nothing in the record suggests that the prosecutor specifically knew that
the investigator and the detective’s trial testimony was inconsistent with the statements made
by the defendant heard on the recording until defendant denied making such a statement at
trial. Moreover, the prosecutor did not mention or highlight the testimony pertaining to
defendant taking L.M.D. to his trailer during closing argument. The prosecutor instead
argued only that defendant admitted to taking L.M.D. out of the family home. Cf. People v.
Whitlow, 89 Ill. 2d 322, 339-40, 433 N.E.2d 629, 637 (1982) (reversible error for prosecutor
to argue in closing an inference totally unsupported by the evidence). The defendant carries
the burden of proof for a claim of prosecutorial misconduct. People v. Hanson, 273 Ill. App.
3d 332, 338, 652 N.E.2d 824, 829 (1995). We therefore find no evidence of prosecutorial
misconduct with respect to the references to L.M.D. being at defendant’s trailer. Similarly,
defendant claims that the prosecutor’s cross-examination of one of his witnesses, Correira,
improperly suggested that defendant took L.M.D. to his trailer alone with him when the
prosecutor knew that defendant had disclaimed this fact. Again, the prosecutor’s questioning
was not improper where the only evidence presented at that point in the proceedings
suggested that fact to be true. Under the circumstances presented, we do not find
prosecutorial misconduct in this instance.
¶ 15 Defendant also finds fault with the prosecutor’s cross-examination of Correira.
Correira, age 34, had been called by the defense to testify that she had known defendant
since she was 16 years old. She stated that defendant and L.M.D. would come to her house,
and L.M.D. would play with Correira’s daughters. Correira said defendant took L.M.D. out a 8 lot because L.M.D. had nothing to do at her own house. During cross-examination, the
prosecutor asked the witness if she was aware of defendant’s past, and she answered
affirmatively. The prosecutor attempted to get more specific about defendant’s past, but this
line of questioning was interrupted by the court, and the jury was temporarily excused.
Outside the jury’s presence, defense counsel argued that the prosecutor was attempting to
inquire about defendant’s criminal record, which had already been ruled inadmissible in an
earlier motion in limine. The prosecutor argued that defendant had opened the door, by
asking the witness about defendant’s character. The court rejected the State’s argument and
agreed with defendant. The prosecution was barred from asking any further questions about
defendant’s past. Defendant believes the court should also have informed the jury to
disregard the testimony of the witness regarding her knowledge of defendant’s past.
Defendant argues the prosecutor’s questions led the jury to believe his past had involved
other acts of sexual abuse. The prosecutor explained she was only attempting to elicit
testimony pertaining to defendant’s prior burglary conviction based on the witness’s
comments regarding defendant’s character. There was no indication that she was attempting
specifically to suggest defendant had committed other prior acts of sexual abuse. While we
believe the prosecutor’s questions crossed the line, especially given the earlier motion
in limine, a prosecutor’s remarks amount to reversible error only when they result in
substantial prejudice to a defendant such that it is impossible to say whether or not a verdict
of guilt resulted from those comments. People v. Nieves, 193 Ill. 2d 513, 533, 739 N.E.2d
1277, 1286 (2000). Because the exchange was brief, and dealt with immediately by the court,
9 we cannot say the prosecutor’s actions in this instance rose to that level of substantial
prejudice.
¶ 16 Defendant next takes issue with the State’s closing argument. Specifically, defendant
points to the prosecutor’s statements pertaining to how odd it was for a single adult male to
repeatedly take a child out of her home and spend money on her when he, himself, could not
pay his bills. We agree with the State that prosecutors are afforded wide latitude in closing
argument and may argue facts and reasonable inferences drawn from the evidence. People v.
Williams, 192 Ill. 2d 548, 573, 736 N.E.2d 1001, 1015 (2000). The prosecutor’s comments
clearly inferred that defendant’s behavior and interactions with the victim were abnormal.
Given the record as a whole, however, and the wide latitude generally afforded prosecutors
in closing argument, we cannot say that this argument was unreasonable.
¶ 17 Defendant also finds fault with the prosecutor cross-examining him regarding an
alleged phone call he made to DCFS in 2009. Defendant testified that L.M.D. was neglected,
watched pornographic movies in her home, and lived in a filthy house without enough food.
The prosecutor asked defendant why he did not call DCFS regarding the terrible conditions
in which L.M.D. was living. Defendant responded that he did call DCFS once, in 2009. The
prosecutor then asked defendant what he would say if he were told that DCFS had records of
phone calls received by the agency and that there was no record of defendant having made
such a call. Defendant responded he would want to see the records from 2009. The
prosecutor then asked defendant why he did not report the terrible living conditions to the
police. Defendant responded he was giving the parents “a chance to straighten their act out.”
It is reasonable to assume the prosecutor was attempting to impeach defendant that he was 10 not the person who first called DCFS regarding the sexual abuse. When it was clear that
defendant was referring to a separate call made some two years earlier than the actual call
made to DCFS which prompted L.M.D.’s removal from the home, the prosecutor moved on
from that line of questioning. More importantly, even assuming the cross-examination was
improper, whether defendant did, or did not, call DCFS in 2009 was a minor detail. Any
assumed error was harmless beyond a reasonable doubt.
¶ 18 Defendant also argues his credibility was improperly attacked during the detective’s
testimony. The detective testified that “everybody lies to the police,” thereby implying that
defendant, too, was a liar. The context in which defendant’s claim arose occurred during the
prosecutor’s questioning of the detective. The prosecutor was eliciting testimony from the
detective to demonstrate to the jury that police, too, often lie to a suspect during questioning
and that this was a common police tactic. According to the detective, they use such tactics to
elicit truthful responses from people they interview. In this instance, the detective lied to
defendant during police questioning when he told him that the police had discovered semen
in the victim’s vagina. When the prosecutor asked the detective why lying to a suspect is a
useful interrogation technique, the detective’s answer was unresponsive when he stated that
“everybody lies” to the police. When considered in the context in which the testimony was
given, the detective’s statement was not an attack on defendant’s credibility. Rather, it was
nothing more than the detective’s explanation of what the police perceive as an effective
interrogation technique.
¶ 19 Defendant also finds fault with the prosecutor’s closing argument, claiming it
improperly appealed to the jury’s emotions by stating that L.M.D. would be affected for the 11 rest of her life. Again, prosecutors are afforded wide latitude in closing arguments.
Assuming, however, the closing argument was improper, such prosecutorial remarks can be
cured by instructing the jury to disregard arguments not based on the evidence. Here, the
court specifically instructed the jury to disregard any statement or argument made by the
attorneys which were not based on the evidence. See People v. Rushing, 192 Ill. App. 3d
444, 454, 548 N.E.2d 788, 794 (1989). Having considered the record as a whole, we do not
find that defendant’s claims rise to the level of prosecutorial misconduct in this instance. In
light of the foregoing, we conclude defendant was not deprived of a fair trial.
¶ 20 In a supplemental brief on appeal, defendant argues the court erred in failing to
suppress his statement made to the detective and investigator upon being advised he was
under arrest. Defendant contends his statement was made after he had invoked his right to
counsel and, therefore, was inadmissible. The State counters that defendant’s statement was
made spontaneously, after questioning had ended, and when the defendant was told he was
under arrest. Therefore, the spontaneous statement was admissible into evidence. The State
further contends that on two separate occasions, even after invoking his postarrest rights,
defendant reinitiated conversations with the detective, thereby knowingly and intelligently
waiving his prior invocations.
¶ 21 Defendant filed a motion on December 30, 2011, seeking to suppress any statements
made to the detective after having been given Miranda warnings and having invoked his
right to counsel. Miranda v. Arizona, 384 U.S. 436 (1966). A hearing on the motion was held
on January 20, 2012. The evidence revealed that at the outset of any questioning, defendant
was advised of his Miranda rights. Defendant indicated he understood those rights and 12 signed a waiver, wherein he agreed to speak with the detective. At one point during the
questioning, defendant stated he needed to talk to an attorney before he answered any more
questions but then asked questions of his own and continued to answer the detective’s
questions. This same scenario occurred a second time. After the detective finished
questioning defendant, the detective left the room for 20 to 30 minutes. According to the
detective, upon returning to the room, he told defendant he was under arrest, and defendant
stated, “I guess they found my DNA on that girl.” The detective denied asking any questions
before defendant made this statement.
¶ 22 After watching the videotape of defendant’s interrogation and hearing the evidence
and counsels’ arguments, the court ruled that defendant waived his rights after invoking them
as he kept re-engaging the detective during questioning. Additionally, at the time he was
arrested, the formal interrogation of defendant had already ended. The court therefore
concluded that defendant’s spontaneous statement, made at the time of his arrest, should not
be suppressed.
¶ 23 In reviewing a trial court’s ruling on a motion to suppress evidence, the court’s
findings of fact are to be given great deference. Accordingly, we will not reverse such
findings on appeal unless they are against the manifest weight of the evidence. People v.
Ravellette, 263 Ill. App. 3d 906, 911, 636 N.E.2d 105, 109 (1994). As to the trial court’s
ultimate legal ruling as to whether suppression is warranted, however, de novo review
applies. People v. Flores, 315 Ill. App. 3d 387, 392, 734 N.E.2d 63, 67 (2000). When an
accused invokes his right to have counsel present during custodial interrogation, he may not
be subject to further questioning without the presence of counsel unless the accused himself 13 initiates further communication, exchanges, or conversations with the police. Edwards v.
Arizona, 451 U.S. 477, 485 (1981). “If the police subsequently initiate a conversation with
the accused in the absence of counsel, the accused’s statements are presumed involuntary
and are not admissible as substantive evidence at trial.” People v. Woolley, 178 Ill. 2d 175,
198, 687 N.E.2d 979, 990 (1997). If, on the other hand, the accused, rather than the police,
initiated further discussion after invoking the right to counsel then the statements may be
admissible as substantive evidence at trial. Woolley, 178 Ill. 2d at 198-99, 687 N.E.2d at 990.
Here, defendant reopened and initiated further conversation with the police immediately after
invoking the right to counsel, thereby knowingly waiving his right to the presence of counsel
during questioning. Additionally, after the interview concluded, the detective left the room
for some 20 to 30 minutes. When he came back into the room and told defendant he was
going to be arrested, defendant stated “I guess they found my DNA on that girl.” The
detective did not question defendant in any form to elicit defendant’s response. Defendant’s
statement clearly was unsolicited and spontaneous. Any statement given freely and
voluntarily without any compelling influences is admissible. Miranda, 384 U.S. at 478.
Given that defendant’s statements were unprompted, the court’s denial of defendant’s motion
to suppress was not in error.
¶ 24 Finally, defendant argues he made numerous allegations of ineffective assistance of
trial counsel in his written statement in allocution, which was presented at the sentencing
hearing. Defendant claims counsel failed to file a motion to dismiss for lack of evidence and
failed to present relevant and material evidence, both at a pretrial hearing and at trial. He
further alleged that counsel failed to call 4 of the 10 witnesses he requested to have called 14 and did not present 6 exhibits he said he would present. Defendant also contends he was
prejudiced by counsel’s closing argument as well as by the failure to poll the jury after
reaching a verdict. Defense counsel filed no written posttrial motion to preserve defendant’s
issues for appeal. Defendant believes the court should have conducted at least a preliminary
inquiry into his claims of ineffectiveness of counsel and then should have appointed new
counsel to investigate the claims or informed defendant that the claims lacked merit before
proceeding to sentencing. Here, the court made no inquiry, offered no comment on
defendant’s claims, and instead moved immediately to sentencing as though no allegations
had been made. Because the court erred in failing to make any inquiry into the allegations,
defendant asserts remand is mandated pursuant to People v. Krankel, 102 Ill. 2d 181, 464
N.E.2d 1045 (1984), and People v. Moore, 207 Ill. 2d 68, 797 N.E.2d 631 (2003). We agree.
¶ 25 The record reveals that at the sentencing hearing held on February 1, 2013, the trial
court allowed defendant to make a statement in allocution. The transcript of the statement
reads that defendant’s statement of allocution was unintelligible and was unable to be
transcribed. The record then reveals that the court thanked defendant for his statement, and
sentence was imposed. On August 29, 2014, defendant filed a letter, addressed to the State
Appellate Defender, alleging numerous allegations of ineffective assistance of counsel.
Defendant claims this written statement was allegedly his statement in allocution, which he
read at sentencing, even though not filed until more than a year later. While we question
some aspects of the written statement, we agree with defendant that the court erred in not
inquiring further as to defendant’s allegations of ineffective assistance of counsel at the time
of sentencing. In People v. Moore, 207 Ill. 2d 68, 797 N.E.2d 631 (2003), our supreme court 15 reviewed the issue of when a trial court must make a preliminary inquiry into a defendant’s
pro se claim of ineffective assistance of counsel. Interpreting People v. Krankel, 102 Ill. 2d
181, 464 N.E.2d 1045 (1984), the court stated:
“when a defendant presents a pro se posttrial claim of ineffective assistance of
counsel, the trial court should first examine the factual basis of the defendant’s claim.
If the trial court determines that the claim lacks merit or pertains only to matters of
trial strategy, then the court need not appoint new counsel and may deny the pro se
motion. However, if the allegations show possible neglect of the case, new counsel
should be appointed.” Moore, 207 Ill. 2d at 77-78, 797 N.E.2d at 637.
¶ 26 The operative concern for this court is whether the trial court conducted an adequate
inquiry into defendant’s allegations of ineffective assistance of counsel. Here, defendant
alleges he told the trial court of his concerns regarding his claims of ineffective assistance of
counsel. This court, however, does not have those statements. For reasons not apparent, the
court reporter was unable to transcribe defendant’s statements to the court. Assuming,
arguendo, that these statements were made, the issue then is whether defendant’s allegations
of ineffective assistance of counsel, without any real factual support, were sufficient to
trigger an inquiry under Krankel. The issue of whether the circuit court was obligated to
conduct a preliminary Krankel inquiry is a question of law we review de novo.
¶ 27 This court has not previously had the opportunity to review the narrow issue
presented. Our dilemma, however, is not unlike the one presented in Moore, where the trial
court had failed to make a record regarding defendant’s claims of ineffective assistance of
counsel. Therefore, consistent with our supreme court’s findings in Moore, we conclude that 16 the trial court erred in failing to conduct the necessary preliminary examination as to the
factual basis of defendant’s allegations against his trial counsel. As stated in Moore, “a
pro se defendant is not required to do any more than bring his or her claim to the trial court’s
attention, which the defendant did in this case.” Moore, 207 Ill. 2d at 79, 797 N.E.2d at 638.
Once defendant had done so, it was incumbent upon the trial court to conduct a Krankel
inquiry, and thus create a record for review of defendant’s claims. The purpose of such an
inquiry is to facilitate the trial court’s full consideration of defendant’s pro se claims of
ineffective assistance of counsel and potentially limit issues on appeal. People v. Jolly, 2014
IL 117142, & 29, 25 N.E.3d 1127. In this case, had the court conducted such an inquiry, this
court would have had a sufficient record upon which to determine whether defendant has
made a sufficient showing of ineffective assistance of counsel.
¶ 28 Our remand, however, is limited simply to an inquiry, not for a full evidentiary
hearing and appointment of new counsel. It is the trial court that must determine whether
defendant is entitled to appointment of new counsel to pursue his claims. During this
preliminary examination, “some interchange between the trial court and trial counsel
regarding the facts and circumstances surrounding the allegedly ineffective representation is
permissible and usually necessary in assessing what further action, if any, is warranted on a
defendant’s claim.” Moore, 207 Ill. 2d at 78, 797 N.E.2d at 638. In addition to its exchange
of information with trial counsel, the trial court may also seek information from defendant,
himself. And the trial court is permitted to base its determination on its own observations of
defense counsel’s performance at trial. If, at the conclusion of its inquiry, the trial court
determines that the claim of ineffectiveness lacks merit or pertains only to matters of trial 17 strategy then the court need not appoint new counsel and may deny the pro se motion.
Alternatively, if the court finds defendant’s claims have some merit, then new counsel
should be appointed to represent defendant on his ineffectiveness claims before the court.
¶ 29 For the foregoing reasons, we affirm the judgment of the circuit court of Saline
County but remand for a Krankel inquiry on the issue of ineffective assistance of counsel
consistent with this disposition.
¶ 30 Affirmed in part; remanded in part.
18 2017 IL App (5th) 130220
NO. 5-13-0220
IN THE
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Saline County. ) v. ) No. 11-CF-176 ) JAMES R. BRANCH, ) Honorable ) Todd D. Lambert, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
Opinion Filed: August 1, 2017 ______________________________________________________________________________
Justices: Honorable Judy L. Cates, J.
Honorable Richard P. Goldenhersh, J., and Honorable David K. Overstreet, J., Concur ______________________________________________________________________________
Attorneys Michael J. Pelletier, State Appellate Defender, Thomas A. Lilien, Deputy for Defender, Kim M. DeWitt, Assistant Appellate Defender, Josette Skelnik, Appellant Supervisor, Office of the State Appellate Defender, Second Judicial District, One Douglas Avenue, Second Floor, Elgin, IL 60120 ______________________________________________________________________________
Attorneys Michael Henshaw, Saline County State’s Attorney, Saline County for Courthouse, Harrisburg, IL 62946; Patrick Delfino, Director, David J. Appellee Robinson, Deputy Director, Luke McNeill, Staff Attorney, State’s Attorneys Appellate Prosecutor, 725 South Second Street, Springfield, IL 62704 ______________________________________________________________________________