People v. Brown

2022 IL App (4th) 210168-U

Opinion

NOTICE This Order was filed under 2022 IL App (4th) 210168-U FILED July 5, 2022 Supreme Court Rule 23 and is Carla Bender not precedent except in the NO. 4-21-0168 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County KYDEL J. BROWN, ) No. 17CF479 Defendant-Appellant. ) ) Honorable ) Roger B. Webber, ) Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court. Justices DeArmond and Turner concurred in the judgment.

ORDER ¶1 Held: The appellate court reversed and remanded for a preliminary Krankel inquiry, concluding the trial court failed to conduct a proper inquiry when it neglected to question trial counsel regarding defendant’s claim counsel failed to investigate his codefendant as a potential witness.

¶2 Defendant, Kydel J. Brown, appeals from the Champaign County circuit court’s

judgment finding the appointment of new counsel was not warranted and defendant’s sentence

was not excessive. Specifically, defendant argues the trial court (1) failed to conduct a proper

inquiry into one of defendant’s pro se claims of ineffective assistance of trial counsel and

(2) abused its discretion in sentencing defendant to 38 years in prison for armed robbery in light

of his age, history, and the nature of the offense. The State concedes the trial court failed to

conduct a proper inquiry under People v. Krankel, 102 Ill. 2d 181 (1984), and agrees this court should reverse and remand. We accept the State’s concession and reverse and remand for a new

preliminary Krankel inquiry.

¶3 I. BACKGROUND

¶4 A. Conviction and Direct Appeal

¶5 This court previously discussed the underlying facts in this case on direct appeal.

People v. Brown, 2020 IL App (4th) 180069-U, ¶¶ 6-48. Accordingly, we discuss only those

facts necessary to resolve the issue presented in this appeal.

¶6 Following an August 2017 jury trial, defendant was found guilty of armed

robbery, a Class X felony (720 ILCS 5/18-2(a)(2) (West 2016)), and sentenced to 38 years in

prison. Defendant then pro se filed a letter with the trial court, alleging his trial counsel was

ineffective for failing to call certain witnesses and object to certain evidence. Specifically,

defendant alleged trial counsel failed to investigate or present testimony from Kelvin Hartfield

(his codefendant), Vanishia Hunt, Veon Hunt, Kathy Barker, and Marcus Craig, all of whom

could have potentially provided alibi testimony. Defendant additionally alleged trial counsel

failed to object at trial to Susan Chapin’s reading of witness Tierycka Wiley’s prior testimony at

Hartfield’s trial.

¶7 In October 2017, the trial court conducted a Krankel inquiry in which neither

defendant nor trial counsel were afforded an opportunity to speak about defendant’s allegations,

and the court determined the appointment of new defense counsel was not necessary. Defendant

appealed, arguing the trial court failed to conduct a proper Krankel inquiry and his sentence was

excessive. Brown, 2020 IL App (4th) 180069-U, ¶ 4. This court agreed the trial court failed to

conduct a proper Krankel inquiry and reversed and remanded for further proceedings. Id. ¶ 1.

-2- Because this court reversed and remanded, it did not address defendant’s excessive sentence

claim. Id. ¶ 66.

¶8 B. Remand Hearing

¶9 In March 2021, the trial court conducted a new Krankel inquiry with a different

judge presiding.

¶ 10 1. Defendant

¶ 11 The court first allowed defendant to elaborate on his pro se allegations of

ineffective assistance, and defendant reiterated his belief his trial counsel, Stephanie Corum,

failed to investigate or interview five potential alibi witnesses. The court then went down

defendant’s list of witnesses one by one, allowing defendant to explain what testimony they

could have provided. Beginning with his codefendant, Kelvin Hartfield, defendant agreed with

the trial court’s statement that it was defendant’s belief Hartfield would have testified defendant

was not present during the armed robbery. Immediately after the court’s statement, it inquired

about the remaining witnesses. Defendant stated Vanishia Hunt, Veon Hunt, and Marcus Craig

would have testified defendant was at his own home during the time of the alleged offense and

therefore could not have participated. Defendant informed Corum of these potential witnesses

but claimed she failed to contact them.

¶ 12 2. Stephanie Corum

¶ 13 The court then allowed Corum to respond to defendant’s allegations. Corum went

through several of defendant’s potential witnesses and explained why she did not contact them or

call them to testify.

¶ 14 Corum stated she did not call Vanishia Hunt because Vanishia had previously

given a statement to police that she got home at 10:30 p.m. the night of the armed robbery and

-3- did not see defendant at all. Because this was inconsistent with the testimony defendant believed

she could provide—which was that she saw defendant come home around 11 p.m.—Corum

believed Vanishia would not have been a helpful alibi witness.

¶ 15 Corum further explained she had represented Veon Hunt in a juvenile

delinquency proceeding around the same time she represented defendant and, during this time,

Veon indicated he “did not want to be involved” with defendant’s case and that he “didn’t know

anything about what happened.” Based on these statements, Corum did not believe he could

provide useful trial testimony.

¶ 16 Regarding Marcus Craig, Corum recalled that Craig “also had made a statement

to police that *** led me to believe that if he came out and said that he actually saw [defendant]

between the hours of 10 p.m. and 7 a.m. that it would be contradicted by his original statement to

law enforcement.”

¶ 17 Corum also stated that, prior to trial, she had a conversation with defendant and

the public defender’s office investigator, Steve Guess, during which defendant indicated he “no

longer wanted to put his family in the position of having to say things *** about his

whereabouts.” Corum continued, “[S]o it wasn’t that the alibi defense was completely abandoned

at that point[,] but he did indicate that he no longer wanted us to continue to investigate

witnesses.”

¶ 18 As to the claim regarding Susan Chapin’s reading of Tierykah Wiley’s prior

testimony during defendant’s trial, Corum explained as follows:

“Ms. Chapin did not testify. She merely read a transcript from [Hartfield’s] trial.

We actually conducted a hearing outside the presence of the jury where

Ms. Wiley came in. She—her testimony was essentially going sideways for the

-4- State’s Attorney’s office. We conducted that hearing outside the presence of the

jury as we were supposed to. We brought the jury back in. Ms. Wiley was then

asked a series of questions by the State and then by myself. She ended up going

sideways on both of us and so—and by sideways, I’m sorry, your Honor, I’m

using loose language. However, she ended up testifying inconsistently with prior

testimony. She was then impeached with that testimony, and in order for the jury

to have more diverse voices Mr. Lozar read the questions, Ms. Chapin would

respond in Ms. Wiley’s voice so that the jury could have a more well-rounded

impression of what was happening.”

Defendant then brought up once again his concerns regarding Corum’s failure to present

testimony from Marcus Craig and referred the court to Craig’s affidavit. Craig averred he had

seen defendant before the alleged crime occurred and there “was no way he could have been

present at the scene of the crime.” In response, Corum stated Craig had previously given a

statement to police in which he indicated he did not “know the times [defendant] was home or

gone from the residence” on the evening of the alleged robbery. The court then inquired of

Corum, “[S]o if I understand you[,] even if Mr. Craig would have testified at trial that

[defendant] was home all night[,] that would have been impeached by his statements to police

and for that reason you chose not to present it?” Corum responded affirmatively.

¶ 19 The court did not inquire of Corum as to why she did not call defendant’s

codefendant, Hartfield, as a witness, and Corum did not volunteer any explanation regarding that

witness.

¶ 20 At the conclusion of the hearing, the court indicated it had reviewed defendant’s

written correspondence outlining his claims of ineffective assistance and had discussed those

-5- claims with defendant and Corum. The court concluded Corum had presented a sound strategic

decision for each alleged act of ineffective assistance. Accordingly, it concluded defendant had

not raised any claim indicating Corum’s possible neglect of defendant’s case and therefore the

appointment of counsel to pursue those claims further was not warranted.

¶ 21 This appeal followed.

¶ 22 II. ANALYSIS

¶ 23 On appeal, the parties agree this court should reverse and remand for further

proceedings because the trial court failed to conduct a sufficient inquiry under Krankel when it

neglected to question Corum regarding defendant’s claim Kelvin Hartfield could have testified

defendant did not commit the offense in this case. We agree and reverse and remand for further

proceedings.

¶ 24 When a defendant pro se raises a posttrial claim of ineffective assistance of trial

counsel, Illinois courts follow the procedure as it has evolved from Krankel. People v. Ayres,

2017 IL 120071, ¶ 11. “The trial court must conduct an adequate inquiry into allegations of

ineffective assistance of counsel, that is, inquiry sufficient to determine the factual basis of the

claim.” People v. Banks, 237 Ill. 2d 154, 213 (2010). “[A] trial court’s method of inquiry at a

[preliminary] Krankel hearing is somewhat flexible.” People v. Flemming, 2015 IL App (1st)

111925-B, ¶ 85. Ordinarily, an adequate inquiry may include “(1) questioning the trial counsel,

(2) questioning the defendant, [or] (3) relying on its own knowledge of the trial counsel’s

performance in the trial.” People v. Peacock, 359 Ill. App. 3d 326, 339 (2005). “[W]here alibi

witnesses are concerned, a court conducting a preliminary investigation under Krankel ought to

inquire into matters such as the identities of the witnesses, the substance of their proposed

-6- testimony, and the extent to which defendant’s counsel knew and acted upon the existence of

such witnesses.” People v. McCarter, 385 Ill. App. 3d 919, 942 (2008).

¶ 25 “If the 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.

[Citation.] However, if the allegations show possible neglect of the case, new counsel should be

appointed.” People v. Roddis, 2020 IL 124352, ¶ 35 (citing People v. Moore, 207 Ill. 2d 68, 78

(2003)). We review de novo whether the trial court properly conducted a preliminary Krankel

inquiry. People v. Jolly, 2014 IL 117142, ¶ 28.

¶ 26 The parties agree this case is analogous to People v. Barnes, 364 Ill. App. 3d 888

(2006). In Barnes, the defendant alleged during his sentencing hearing that his trial attorneys

were ineffective when they failed to provide him with transcripts he requested and did not

investigate certain alibi witnesses. Id. at 892. Without inquiring of the defendant’s attorneys, the

trial court concluded the defendant’s allegations were between the defendant and his attorneys,

and that because “nothing was ever brought to [the court’s] attention *** that work was not

being done,” the defendant’s allegations pertained to matters of trial strategy. Id. at 893. On

appeal, the First District held the trial court’s inquiry into the defendant’s allegations did not

comport with Krankel because in its “brief conclusory review,” it failed to inquire “into the

substance” of the defendant’s allegations and “summarily rejected” them without any inquiry

into the specifics. Id. at 899.

¶ 27 In this case, although the trial court’s inquiry was otherwise diligent, it failed to

comport with Krankel when it did not inquire into the specifics of defendant’s allegation that

trial counsel failed to investigate his codefendant and obtain his trial testimony. While

questioning defendant regarding his list of potential witnesses, the trial court asked defendant

-7- just one question concerning his codefendant: “And [Kelvin Hartfield] would have testified—

you believe he would have testified you were not an accomplice to the crime?” To which

defendant responded, “Yes, sir.” The court immediately inquired regarding the next witness

without any further explanation of the contents of Hartfield’s testimony or how defendant knew

Hartfield would be willing to testify on defendant’s behalf. Moreover, the trial court heard no

response from trial counsel regarding this allegation. We emphasize that the trial judge who

conducted the inquiry here was not the same judge who presided over defendant’s trial, and thus,

the trial court could not have concluded defendant’s allegation was merely a matter of trial

strategy in the absence of any explanation from trial counsel to support such a conclusion.

Because the trial court’s “brief conclusory review” of this particular claim fell short of the

factual assessment it was required to perform, we remand for a preliminary Krankel inquiry into

defendant’s claim his counsel failed to investigate his codefendant, Kelvin Hartfield, and obtain

his trial testimony. See id. at 899.

¶ 28 Given our reversal on the Krankel issue, we again decline to address defendant’s

excessive sentence claim as it may become moot depending upon the outcome of

defendant’s Krankel hearing. We offer no opinion on the merits of defendant’s ineffective

assistance of trial counsel claim.

¶ 29 III. CONCLUSION

¶ 30 For the reasons stated, consistent with Illinois Supreme Court Rule 23(b) (eff. Jan.

1, 2021), we reverse the trial court’s judgment and remand for further proceedings.

¶ 31 Reversed and remanded.

-8-