NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
2020 IL App (3d) 170743-U
Order filed June 3, 2020 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-17-0743 v. ) Circuit No. 17-CF-920 ) ALBERT W. COBBINS, ) Honorable ) Edward A. Burmila Jr., Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court. Presiding Justice Lytton and Justice Holdridge concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: The circuit court failed to conduct an adequate inquiry into defendant’s pro se claims of ineffective assistance of counsel.
¶2 Defendant, Albert W. Cobbins, appeals from his conviction for unlawful possession of
cannabis with intent to deliver. Defendant argues the Will County circuit court failed to conduct
an adequate inquiry into his posttrial claims of ineffective assistance of counsel. We remand with
directions. ¶3 I. BACKGROUND
¶4 The State charged defendant with two counts of domestic battery (720 ILCS 5/12-3.2
(West 2016)), and one count of unlawful possession of cannabis with intent to deliver (720 ILCS
550/5(c) (West 2016)). The court appointed counsel to represent defendant, and the case
proceeded to a jury trial. The jury found defendant guilty of the unlawful possession of cannabis
with intent to deliver charge and not guilty of both domestic battery charges. Defendant filed a
pro se posttrial motion that argued counsel provided ineffective assistance. In the motion,
defendant alleged that counsel failed to obtain the police officer’s body camera video that was
recorded at the time of his arrest. Defendant also contended that
“Counsel failure to rebuttal and point out minor inconsistencies of both fact
witnesses. When defendant let him know that both witnesses was lying in there
testimonies. TWO FACT WITNESSES WAS ‘NOT CREDIBLE’. ***
***
*** Suppression by the (attorney) of the evidence favorable to also
requested by defendant Violates his Due Process.
*** The defendant attorney feels a new trail should be granted due to his
unprofessional errors and incompetence.” (Emphases omitted.)
¶5 At the hearing on defendant’s motion, defense counsel declined to adopt defendant’s
motion for a new trial. In response to defendant’s complaints of counsel’s representation, the
court initially explained to defendant that
“[N]o one is entitled to what the law calls bifurcated representation. What
that means is that you do some of the case and the lawyer does some of the case.
2 *** Now, if you want to go ahead with this motion and argue it on your
own, you can, but then you would have to represent yourself. Okay.
THE DEFENDANT: I wouldn’t be able to get a different Public
Defender?
THE COURT: The—the assignment of the Public Defender is up to [the
supervisor of the public defender’s office.] *** But I’ll tell you one thing, if the
only issue you have is I want him to do this, and he won’t do it—
THE DEFENDANT: No.
THE COURT:—that’s not going to fly.
THE DEFENDANT: I didn’t want him to do that. It was things that I have
been asking him to get, like to subpoena the body camera off the police officer.”
The court asked counsel if he looked into the body camera video. Counsel said a member of the
police department informed him that their officers did not have body cameras. The court
concluded that this claim did not have merit. The court did not address defendant’s remaining
claims of ineffective assistance of counsel. Instead, the court told defendant that he cannot force
counsel to argue his pro se motion, and therefore, he could choose between arguing the motion
himself and discharging counsel or possibly talking to a supervisor at the public defender’s
office. Defendant initially stated that he wanted to represent himself, but when the court
suggested that defendant’s decision might cause problems with his appeal, defendant decided not
to discharge counsel.
¶6 A few days after defendant criticized counsel’s performance, the docket entry for August
31, 2017, states that defendant withdrew his motion for a new trial. After this date, counsel filed
3 his own motion for a new trial. The court denied the motion and sentenced defendant to 182 days
in jail, to be followed by 30 months of probation.
¶7 II. ANALYSIS
¶8 On appeal, defendant argues that the circuit court failed to make an adequate inquiry into
his claims of ineffective assistance of counsel as required by People v. Krankel, 102 Ill. 2d 181
(1984). We find that the court’s preliminary Krankel inquiry was inadequate as it did not review
two of defendant’s claims.
¶9 A defendant’s pro se posttrial claim of ineffective assistance of counsel is governed by
the common-law procedure developed by our supreme court in Krankel. Following a defendant’s
complaint about counsel’s performance, the court must make a preliminary inquiry into the
factual bases for the claim. People v. Ayres, 2017 IL 120071, ¶ 11. The court may rely on its
knowledge of counsel’s performance at trial and ask questions of counsel and defendant. Id. ¶ 12.
This procedure “serves the narrow purpose of allowing the trial court to decide whether to
appoint independent counsel to argue a defendant’s pro se posttrial ineffective assistance
claims.” People v. Patrick, 2011 IL 111666, ¶ 39. It also facilitates the court’s full consideration
of defendant’s pro se claims and potentially limits issues on appeal. Ayres, 2017 IL 120071,
¶ 13. If the court determines that a defendant’s claim lacks merit or pertains to matters of trial
strategy, then it need not appoint new counsel and may deny the motion. Id. ¶ 11. If the
allegations show possible neglect, the court should appoint new counsel to represent defendant at
the hearing on his claim of ineffective assistance. Id. We review, de novo, the issue of whether
the circuit court conducted an adequate inquiry into defendant’s claims of ineffective assistance
of counsel. People v. Taylor, 237 Ill. 2d 68, 75 (2010).
4 ¶ 10 In the present case, it is clear from the record that the court only considered defendant’s
claim that counsel did not procure the body camera video. The court otherwise ignored
defendant’s two other claims that counsel conducted an inadequate examination of the State’s
witnesses or failed to rebut their testimony and did not introduce evidence that favored the
defense. While these claims were not as clearly expressed as the body camera claim, they still
were subject to the preliminary Krankel inquiry requirement. See Ayres, 2017 IL 120071, ¶ 11
(the law requires that the court conduct “ ‘some type of inquiry’ ” into the factual basis of
defendant’s claims. (Emphasis added.) (quoting People v. Moore, 207 Ill. 2d 68, 79 (2003))). As
our supreme court recently observed, “even in preliminary Krankel inquiries, a trial court must
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NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
2020 IL App (3d) 170743-U
Order filed June 3, 2020 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-17-0743 v. ) Circuit No. 17-CF-920 ) ALBERT W. COBBINS, ) Honorable ) Edward A. Burmila Jr., Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court. Presiding Justice Lytton and Justice Holdridge concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: The circuit court failed to conduct an adequate inquiry into defendant’s pro se claims of ineffective assistance of counsel.
¶2 Defendant, Albert W. Cobbins, appeals from his conviction for unlawful possession of
cannabis with intent to deliver. Defendant argues the Will County circuit court failed to conduct
an adequate inquiry into his posttrial claims of ineffective assistance of counsel. We remand with
directions. ¶3 I. BACKGROUND
¶4 The State charged defendant with two counts of domestic battery (720 ILCS 5/12-3.2
(West 2016)), and one count of unlawful possession of cannabis with intent to deliver (720 ILCS
550/5(c) (West 2016)). The court appointed counsel to represent defendant, and the case
proceeded to a jury trial. The jury found defendant guilty of the unlawful possession of cannabis
with intent to deliver charge and not guilty of both domestic battery charges. Defendant filed a
pro se posttrial motion that argued counsel provided ineffective assistance. In the motion,
defendant alleged that counsel failed to obtain the police officer’s body camera video that was
recorded at the time of his arrest. Defendant also contended that
“Counsel failure to rebuttal and point out minor inconsistencies of both fact
witnesses. When defendant let him know that both witnesses was lying in there
testimonies. TWO FACT WITNESSES WAS ‘NOT CREDIBLE’. ***
***
*** Suppression by the (attorney) of the evidence favorable to also
requested by defendant Violates his Due Process.
*** The defendant attorney feels a new trail should be granted due to his
unprofessional errors and incompetence.” (Emphases omitted.)
¶5 At the hearing on defendant’s motion, defense counsel declined to adopt defendant’s
motion for a new trial. In response to defendant’s complaints of counsel’s representation, the
court initially explained to defendant that
“[N]o one is entitled to what the law calls bifurcated representation. What
that means is that you do some of the case and the lawyer does some of the case.
2 *** Now, if you want to go ahead with this motion and argue it on your
own, you can, but then you would have to represent yourself. Okay.
THE DEFENDANT: I wouldn’t be able to get a different Public
Defender?
THE COURT: The—the assignment of the Public Defender is up to [the
supervisor of the public defender’s office.] *** But I’ll tell you one thing, if the
only issue you have is I want him to do this, and he won’t do it—
THE DEFENDANT: No.
THE COURT:—that’s not going to fly.
THE DEFENDANT: I didn’t want him to do that. It was things that I have
been asking him to get, like to subpoena the body camera off the police officer.”
The court asked counsel if he looked into the body camera video. Counsel said a member of the
police department informed him that their officers did not have body cameras. The court
concluded that this claim did not have merit. The court did not address defendant’s remaining
claims of ineffective assistance of counsel. Instead, the court told defendant that he cannot force
counsel to argue his pro se motion, and therefore, he could choose between arguing the motion
himself and discharging counsel or possibly talking to a supervisor at the public defender’s
office. Defendant initially stated that he wanted to represent himself, but when the court
suggested that defendant’s decision might cause problems with his appeal, defendant decided not
to discharge counsel.
¶6 A few days after defendant criticized counsel’s performance, the docket entry for August
31, 2017, states that defendant withdrew his motion for a new trial. After this date, counsel filed
3 his own motion for a new trial. The court denied the motion and sentenced defendant to 182 days
in jail, to be followed by 30 months of probation.
¶7 II. ANALYSIS
¶8 On appeal, defendant argues that the circuit court failed to make an adequate inquiry into
his claims of ineffective assistance of counsel as required by People v. Krankel, 102 Ill. 2d 181
(1984). We find that the court’s preliminary Krankel inquiry was inadequate as it did not review
two of defendant’s claims.
¶9 A defendant’s pro se posttrial claim of ineffective assistance of counsel is governed by
the common-law procedure developed by our supreme court in Krankel. Following a defendant’s
complaint about counsel’s performance, the court must make a preliminary inquiry into the
factual bases for the claim. People v. Ayres, 2017 IL 120071, ¶ 11. The court may rely on its
knowledge of counsel’s performance at trial and ask questions of counsel and defendant. Id. ¶ 12.
This procedure “serves the narrow purpose of allowing the trial court to decide whether to
appoint independent counsel to argue a defendant’s pro se posttrial ineffective assistance
claims.” People v. Patrick, 2011 IL 111666, ¶ 39. It also facilitates the court’s full consideration
of defendant’s pro se claims and potentially limits issues on appeal. Ayres, 2017 IL 120071,
¶ 13. If the court determines that a defendant’s claim lacks merit or pertains to matters of trial
strategy, then it need not appoint new counsel and may deny the motion. Id. ¶ 11. If the
allegations show possible neglect, the court should appoint new counsel to represent defendant at
the hearing on his claim of ineffective assistance. Id. We review, de novo, the issue of whether
the circuit court conducted an adequate inquiry into defendant’s claims of ineffective assistance
of counsel. People v. Taylor, 237 Ill. 2d 68, 75 (2010).
4 ¶ 10 In the present case, it is clear from the record that the court only considered defendant’s
claim that counsel did not procure the body camera video. The court otherwise ignored
defendant’s two other claims that counsel conducted an inadequate examination of the State’s
witnesses or failed to rebut their testimony and did not introduce evidence that favored the
defense. While these claims were not as clearly expressed as the body camera claim, they still
were subject to the preliminary Krankel inquiry requirement. See Ayres, 2017 IL 120071, ¶ 11
(the law requires that the court conduct “ ‘some type of inquiry’ ” into the factual basis of
defendant’s claims. (Emphasis added.) (quoting People v. Moore, 207 Ill. 2d 68, 79 (2003))). As
our supreme court recently observed, “even in preliminary Krankel inquiries, a trial court must
be able to consider the merits in their entirety.” (Emphasis in original.) People v. Roddis, 2020
IL 124352, ¶ 61. Therefore, the court erred when it conducted no inquiry into two of defendant’s
claims.
¶ 11 In reaching the above conclusion, we reject the State’s contention that defendant
abandoned his ineffective assistance of counsel claims. The State supports this argument by
pointing to defendant’s withdrawal of his pro se motion and failure to reassert his claims.
Contrary to the State’s position, a defendant need only bring the complaints to the court’s
attention, as he did in the pro se motion. He is not required to continue to assert claims of
ineffective assistance of counsel. Ayres, 2017 IL 120071, ¶ 11.
¶ 12 Finally, we take no position on the validity of defendant’s claims. We note that the
appellate court cannot infer that a defendant’s claims lacked merit simply because they were not
addressed by the court or later by counsel, as the State suggests. During the preliminary Krankel
inquiry, it was in the hands of the circuit court to consider the merits of defendant’s claims in
5 their entirety. See Roddis, 2020 IL 124352, ¶ 61. The court failed to consider all of defendant’s
claims, and therefore the inquiry was insufficient.
¶ 13 Accordingly, we remand the cause with directions for the court to conduct a preliminary
inquiry into defendant’s claims that counsel failed to conduct an adequate examination of the
State’s witnesses and present evidence beneficial to the defense.
¶ 14 III. CONCLUSION
¶ 15 The judgment of the circuit court of Will County is remanded with directions.
¶ 16 Remanded with directions.