2021 IL App (4th) 200075-U NOTICE FILED This Order was filed under NOS. 4-20-0075, 4-20-0203 cons. August 27, 2021 Supreme Court Rule 23 and is Carla Bender not precedent except in the IN THE APPELLATE COURT 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Livingston County JASON CORDRAY, ) Nos. 18CF242 Defendant-Appellant. ) 19CC11 ) ) Honorable ) Jennifer H. Bauknecht, ) Judge Presiding.
JUSTICE DeARMOND delivered the judgment of the court. Justices Cavanagh and Steigmann concurred in the judgment.
ORDER ¶1 Held: The trial court erred in failing to conduct a proper preliminary Krankel inquiry after defendant claimed trial counsel was ineffective.
¶2 In August 2018, the State charged defendant, Jason Cordray, with criminal
trespass to a residence. In August 2019, a jury found defendant guilty and the trial court set the
matter for sentencing.
¶3 That same month, defendant filed a pro se motion requesting a judgment
notwithstanding the verdict or, alternatively, a new trial. In the motion, defendant claimed trial
counsel was ineffective. The trial court denied the motion and set the case for sentencing. During
defendant’s statement in allocution, defendant made a series of rambling, incoherent statements,
and his speech was “thick tongued,” which led the court to believe he was under the influence of something. The court ordered defendant to undergo drug testing and continued the sentencing
hearing two weeks later.
¶4 Defendant’s drug test came back positive for alcohol, methamphetamine, and
cocaine. In November 2019, defendant was sentenced to three years in the Illinois Department of
Corrections (DOC). Because defendant appeared at the previous hearing under the influence of
drugs, the trial court sentenced him to 180 days for being in direct criminal contempt of court, to
be served consecutive to his 3-year DOC sentence.
¶5 I. BACKGROUND
¶6 In August 2018, the State charged defendant with one count of criminal trespass
to a residence, a Class 4 felony (720 ILCS 5/19-4(a)(2), (b)(2) (West 2018)). Due to his prior
criminal record, defendant was extended-term eligible (730 ILCS 5/5-8-2(a) (West 2018)).
¶7 In August 2019, after a one-day jury trial, defendant was found guilty, and the
matter was set for sentencing in September. Before the sentencing hearing date, defendant filed a
pro se “motion for judgment notwithstanding verdict and motion for a new trial.” In his motion,
defendant outlined 12 reasons why he believed he was entitled to relief. Although the motion
was based primarily on the deficiencies of counsel, his allegations numbered 11 and 12
specifically complained of his counsel’s inadequate representation during the trial. Number 11
stated defendant “was not competently represented by [trial counsel] as no attempt was made by
him to prove that [defendant] had a right to be present at the subject premises despite evidence
tendered to him.” Number 12 similarly complained defendant “was not competently represented
by [trial counsel] as no argument was presented to the jury that parole release to the subject
address included a determination that defendant had a right to be in the premises.”
-2- ¶8 The trial court reminded defendant he was still represented by counsel and could
not file pro se motions. Upon hearing this, defendant indicated he wanted to proceed pro se, and
the trial court admonished defendant about his right to waive counsel under Illinois Supreme
Court Rule 401 (eff. July 1, 1984). After finding defendant’s waiver of counsel was knowing and
voluntary, the court released defense counsel from the proceedings.
¶9 Defendant then attempted to introduce exhibits he claimed entitled him to live at
the residence and alleged this information was provided to his trial counsel, who never offered it
as evidence during trial. The trial court denied its admission and refused to consider it because,
the court said, new evidence could not be introduced during a hearing on a motion for a new trial
or judgment notwithstanding the verdict. The trial court allowed the State to argue against
defendant’s motion before ultimately denying it. It found, in part, defendant received competent
representation at trial, there was nothing to suggest trial counsel was ineffective, and even if
these documents were provided to trial counsel, he is “entitled to the benefit of the doubt with
regards to trial strategy decisions.” At no point did the trial court further question defendant on
the specifics of how defense counsel was ineffective, nor did it seek input or a response to
defendant’s allegations from defense counsel, who had only moments before left the courtroom.
The sentencing remained set for late September.
¶ 10 At sentencing, defendant asked for the public defender to be reappointed. The trial
court granted his request and reset the case for sentencing in October. During defendant’s
statement of allocution at the later sentencing hearing, defendant made several rambling and
incoherent statements, prompting the trial court to inquire whether he was under the influence of
something. Upon further questioning, the court decided to continue the sentencing hearing,
revoke defendant’s bond, and order defendant to be drug tested. At the next hearing, it was
-3- revealed defendant tested positive for cocaine, methamphetamine, and alcohol. The court
sentenced defendant to 3 years DOC for the underlying criminal conviction of criminal trespass
to a residence and 180 days for direct contempt of court for appearing at the sentencing hearing
intoxicated.
¶ 11 This appeal followed.
¶ 12 II. ANALYSIS
¶ 13 Defendant’s brief sets forth several arguments, but we find it necessary to address
only defendant’s claim the trial court failed to conduct a proper Krankel hearing (see People v.
Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984)). Because we agree with defendant, we remand
for further proceedings.
¶ 14 As our supreme court said in People v. Ayres, 2017 IL 120071, ¶ 11, 88 N.E.3d
732, “[t]he common-law procedure, which has evolved from our decision in Krankel, is triggered
when a defendant raises a pro se posttrial claim of ineffective assistance of trial counsel.” Once
raised, the trial court is required to conduct “some type of inquiry into the underlying factual
basis, if any, of a defendant’s pro se posttrial claim of ineffective assistance of counsel.” People
v. Moore, 207 Ill. 2d 68, 79, 797 N.E.2d 631, 638 (2003). “[A] pro se defendant is not required
to do any more than bring his or her claim to the trial court’s attention.” Moore, 207 Ill. 2d at 79.
The Ayres court found a defendant’s “clear claim asserting ineffective assistance of counsel,
either orally or in writing, *** is sufficient to trigger the trial court’s duty to conduct a Krankel
inquiry.” Ayres, 2017 IL 120071, ¶ 18; see also People v. Thomas, 2017 IL App (4th) 150815,
¶ 26, 93 N.E.3d 664 (noting “[c]ourts have found a defendant is entitled to a Krankel inquiry
when the defendant makes an explicit or ‘clear’ complaint of trial counsel’s performance or
ineffective assistance of counsel”). The inquiry must be sufficient to determine the factual basis
-4- of the claim. See People v. Banks, 237 Ill. 2d 154, 213, 934 N.E.2d 435, 468 (2010). “[T]he
primary purpose of the preliminary inquiry is to give the defendant an opportunity to flesh out
his claim of ineffective assistance so the court can determine whether appointment of new
counsel is necessary.” Ayres, 2017 IL 120071, ¶ 20.
¶ 15 On appeal, “[t]he operative concern for the reviewing court is whether the trial
court conducted an adequate inquiry into the defendant’s pro se allegations of ineffective
assistance of counsel.” Moore, 207 Ill. 2d at 78. In assessing the adequacy of the trial court’s
inquiry, we may consider such things as “(1) whether there was some interchange between the
trial court and defense counsel regarding the facts and circumstances surrounding the [allegations
of ineffective] representation, (2) the sufficiency of defendant’s pro se allegations of ineffective
assistance, and (3) the trial court’s knowledge of defense counsel’s performance at trial and the
sufficiency of the defendant’s allegations on their face.” People v. Schnoor, 2019 IL App (4th)
170571, ¶ 71, 145 N.E.3d 544. This would, in all likelihood, include the trial court briefly
discussing the allegations with the defendant. Ayres, 2017 IL 120071, ¶ 12. “The applicable
standard of review depends on whether the trial court did or did not determine the merits of the
defendant’s pro se posttrial claims of ineffective assistance of counsel.” People v. Jackson, 2020
IL 124112, ¶ 98, 162 N.E.3d 223. Our concern is with the adequacy of the trial court’s inquiry
into defendant’s allegations. Moore, 207 Ill. 2d at 78. Whether the trial court properly conducted
a preliminary Krankel inquiry presents a legal question that we review de novo. People v.
Roddis, 2020 IL 124352, ¶ 33, 161 N.E.3d 173. “However, if the trial court has properly
conducted a Krankel inquiry and has reached a determination on the merits of the defendant’s
Krankel motion, we will reverse only if the trial court’s action was manifestly erroneous.”
Jackson, 2020 IL 124112, ¶ 98. “Manifest error is error that is clearly evident, plain, and
-5- indisputable.” Jackson, 2020 IL 124112, ¶ 98. “When a defendant triggers the Krankel procedure
by making a pro se claim of ineffective assistance of counsel, and the circuit court fails to
conduct the initial Krankel inquiry, the appropriate remedy on appeal is a remand to the circuit
court for the Krankel procedure to take place.” In re Johnathan T., 2021 IL App (5th) 200247,
¶ 20 (citing Ayres, 2017 IL 120071, ¶¶ 24-26).
¶ 16 In this case, defendant’s pro se motion for judgment notwithstanding the verdict
and motion for a new trial complained about his counsel’s performance during trial. Defendant
contended he was “not competently represented” by counsel, who was provided evidence
sufficient to refute the State’s allegation of trespass but failed to present or argue it to the jury.
Thus, defendant at least brought to the trial court’s attention claims of trial counsel’s
ineffectiveness, and it was incumbent upon the court to conduct an “inquiry sufficient to
determine the factual basis of the claim” (Banks, 237 Ill. 2d at 213) and triggered the trial court’s
duty to conduct an adequate Krankel inquiry. Ayres, 2017 IL 120071, ¶ 18. Instead, the court
refused to address defendant’s pro se motions, noting he was represented by counsel:
“I guess initially, [defendant], I would note that you have
an attorney representing you. And so technically since you have
your own attorney you’re not allowed to file pro se motions.
***
*** So he will bring whatever is an appropriate motion and
has a legal basis in the law at the appropriate time. While in the
case, while you have an attorney in the case, you cannot file your
own motions.”
-6- ¶ 17 Although it is generally true a defendant has no authority to file pro se motions
when represented by counsel (People v. Bell, 2018 IL App (4th) 151016, ¶ 28, 100 N.E.3d 177),
the one exception is where his pro se motion is directed against counsel’s performance. People v.
Rhodes, 2019 IL App (4th) 160917, ¶ 18, 128 N.E.3d 1100.
¶ 18 Once defendant learned the trial court would not address his motions, he elected
to proceed pro se and was admonished accordingly by the trial court. His public defender’s
appointment was vacated, and counsel was excused. The court immediately took up defendant’s
motion. It is clear from even a cursory review of the motion defendant claimed he “repeatedly
advised his attorney” of information and evidence prior to trial that he believed was sufficient to
constitute a defense to the charge of trespass. Further, he claimed he “was not competently
represented by [trial counsel]” and that counsel made no attempt to prove he had a right to be at
the address involved or argue the same to the jury.
¶ 19 As we noted above, one of the factors the trial court is permitted to consider in a
preliminary Krankel inquiry is the trial court’s knowledge of defense counsel’s performance at
trial and the sufficiency of the defendant’s allegations on their face. Here, the trial court heard
defense counsel’s opening statement, which included:
“What I think you will also learn in the course of this case
is that Ronald Plesko [(owner of the residence)] was aware that
George [(his brother who was living there)] had taken [defendant]
in. That [defendant] had been paroled to that particular address,
and [defendant] had been there with the permission and knowledge
of the parties involved, and that based on those facts, he was not
guilty of trespass to a residence.”
-7- ¶ 20 During the trial, prior to defendant testifying, his counsel sought to make a record
regarding “some evidentiary matters” that had been discussed between defendant and his counsel
involving “records which would need to be authenticated by George Plesko [(the resident who
was medically unavailable for trial)], who, under the circumstances is not available so I do not
believe they are admissible.” Despite his client’s desire to present these records, counsel said he
made the tactical decision they were inadmissible under the rules of evidence. The exact nature
of the evidence or the basis for counsel’s conclusion were never disclosed.
¶ 21 The trial court was also aware defendant testified about his parole status, that the
residence in question had been approved by his parole officer, and that he was living and had
personal property there at the time. Lastly, the court heard defense counsel’s closing argument,
which attacked the State’s ability to establish defendant’s lack of authority to be in the residence.
Counsel argued defendant had been paroled to the residence, had been seen there previously, and
had personal possessions in the residence, evidencing apparent authority under the terms of his
parole and with the resident’s permission. The trial court had to understand the relevance of
defendant’s claims in light of the evidence and arguments heard. Defendant’s claims were
directed at just such evidence and referenced information and exhibits he provided counsel prior
to trial which, he said, supported those claims.
¶ 22 What we find missing is everything else reasonably expected for an adequate
Krankel inquiry. There is no question a trial court generally has broad discretion over the manner
in which it conducts such hearings. See In re T.R., 2019 IL App (4th) 190529, ¶ 87, 146 N.E.3d
692. In this instance, however, there was no “interchange between the trial court and trial counsel
regarding the facts and circumstances surrounding the [allegations of] ineffective
representation.” Moore, 207 Ill. 2d at 78. In fact, once the trial court found defendant could
-8- proceed pro se, it dismissed counsel without any inquiry about defendant’s allegations. “When
conducting the inquiry, some interchange between the court and trial counsel regarding the
defendant’s claims is permissible and usually necessary in determining whether to appoint
counsel.” (Emphasis added.) People v. Smith, 2021 IL App (1st) 190421, ¶ 97 (citing Moore, 207
Ill. 2d at 78). There was also no “brief discussion” of the allegations with defendant to “flesh out
[defendant’s] claim of ineffective assistance so the court can determine whether appointment of
new counsel is necessary.” Ayres, 2017 IL 120071, ¶ 20. In fact, there was no discussion of the
allegations with defendant at all. Instead, the court told defendant to proceed with his motion for
judgment notwithstanding verdict and motion for a new trial. When defendant attempted to
present evidence supporting his ineffective assistance claims, the trial court refused to allow the
admission of new or additional evidence, finding such evidence was not admissible in
conjunction with the motion for a new trial. Although true, it was still something the court could
and should have considered in relation to defendant’s ineffective assistance claims.
¶ 23 After the trial court informed him he could not submit new evidence at the
hearing, defendant stated, “[t]hat’s what I’m arguing because I wasn’t—I have proof of all the
evidence, crucial evidence went to [defense counsel] which he did not present any of it at trial.”
After explaining to defendant several more times it could not accept new evidence, the following
colloquy took place:
“DEFENDANT: And with all these exhibits and the rent
receipt and just all this evidence I would like to present from the
state a medical card that was issued to me on 09-17-2018, and I
have medication that was—
THE COURT: I can’t receive any new evidence.
-9- DEFENDANT: Oh, okay. So with all of that, I would just
like for you to grant me a new trial because this evidence that
[defense counsel] did not use in the trial which would have made
the outcome, if it was all shown to the jurors, I believe that it
would have been a different outcome. It’s just plain evidence of me
being allowed to be at 1512 Hawthorne Road.”
THE COURT: Okay.
DEFENDANT: And with the evidence not used in trial, the
jurors did not have the right information.
THE COURT: Okay. Thank you. [Prosecutor]?”
¶ 24 This exchange highlights two of the Krankel errors we mentioned above,
(1) failing to assess the sufficiency of defendant’s ineffective assistance claims by dialoguing
with defendant about the factual circumstances of the claims and (2) failing to inquire of defense
counsel, and another error: (3) involving the prosecutor during the proceedings. In People v.
Jolly, 2014 IL 117142, ¶ 38, 25 N.E.3d 1127, our supreme court noted that in a preliminary
Krankel inquiry, the State’s participation, if any, should be de minimis, and “the State should
never be permitted to take an adversarial role against a pro se defendant at the preliminary
Krankel inquiry.” It held:
“[T]he purpose of Krankel is best served by having a neutral trier
of fact initially evaluate the claims at the preliminary Krankel
inquiry without the State’s adversarial participation, creating an
objective record for review. This goal, however, is circumvented
when the circuit court essentially allows the State to bias the record
- 10 - against a pro se defendant during the preliminary Krankel inquiry.
A record produced at a preliminary Krankel inquiry with one-sided
adversarial testing cannot reveal, in an objective and neutral
fashion, whether the circuit court properly decided that a defendant
is not entitled to new counsel.” Jolly, 2014 IL 117142, ¶ 39.
¶ 25 In this case, after the trial court limited defendant to arguing only his motions for
judgment notwithstanding the verdict and for a new trial, it inquired of the prosecutor, who not
only argued the motions but specifically addressed defendant’s claims of ineffective assistance,
arguing his trial counsel was undoubtedly making decisions of trial strategy when he elected not
to use the evidence no one had yet permitted defendant to fully explain or identify. The
prosecutor went so far as to offer his opinion defendant would have been unable to authenticate
or lay a foundation for the evidence he sought to have admitted, and with regard to certain
witnesses defendant had present to testify in support of his claims, he stated, “I would also opine
that they probably were not disclosed to [trial counsel] on the day of trial.” Of course, we do not
know any of that because counsel was never asked to participate, even though he had only
moments before left the courtroom. The trial court then asked defendant if he wanted to make a
final argument, never inquiring about either point raised by the State or asking for elaboration of
his claims or the evidence he contended had been provided to counsel. Defendant again sought to
identify specific documentary evidence, which the court declined to consider. The court, having
already told defendant he was confined to his posttrial motions, ruled on those motions and then
made specific findings regarding his claims of ineffective assistance:
“Moreover, you did receive a fair trial. You had very
competent representation by [trial counsel], and I would note that
- 11 - there was a disclosure of a witness at a very late date. [Trial
counsel] is a very highly qualified trial attorney. He’s done a
number of trials here, but he’s also done a number of trials across
the state. He’s got 30 plus years of experience. He knows trial, the
rule of evidence. He knows the Code. He’s very familiar with
trying cases; and he understands what’s admissible and what’s not
admissible; and he understands the points of cases.
I believe based upon even the information you are
tendering to me today, even if I assume that that was, number one,
provided to [trial counsel] in advance, I do not believe that there’s
been anything to suggest ineffective assistance of counsel. He’s
entitled to the benefit of the doubt with regards to trial strategy
decisions that he is making with regards to evidence that may or
may not be admissible.”
¶ 26 The trial court concluded defendant was represented by competent counsel and
denied his posttrial motions.
¶ 27 Based on this record, it is difficult to determine exactly what happened here. Was
this a flawed Krankel hearing or a hearing based only on the title of defendant’s motions absent
any consideration of Krankel procedures? Regardless, the hearing did not comply with Krankel’s
requirements, even though it is clear from the record defendant was seeking to bring ineffective
assistance of counsel claims to the trial court’s attention—claims that the court found meritless.
While it ultimately falls to the trial court, it is unfortunate that neither the State nor defense
counsel mentioned the necessity of conducting a Krankel hearing at some point in these
- 12 - proceedings. From the record, it is obvious defendant elected to proceed pro se only after the
court said it would not consider his motions since he had counsel. Once defendant was allowed
to represent himself, counsel could have remained in the courtroom and informed the court,
based on the claims contained in defendant’s motions, a preliminary Krankel inquiry might be
appropriate. The State could have done so as well. It is also evident from the record defendant
had been difficult, and at times understandably exasperating to deal with in court. However, it
remained incumbent on the trial court to conduct at least a preliminary inquiry into his
ineffectiveness claims, permit him to elaborate, and discuss the claims with counsel to elicit his
responses before ruling substantively. This is especially true where, at every juncture, the court
foreclosed defendant from attempting to present the recommended elaboration of his claims,
maintaining he was to remain within the confines of his posttrial motions (motions which were
based entirely on claims of ineffective assistance), permitting the State to argue against those
same ineffectiveness claims, and then ruling on them substantively.
¶ 28 III. CONCLUSION
¶ 29 For these reasons, we believe the trial court erred by failing to conduct a proper
Krankel hearing after defendant raised ineffective assistance of counsel claims in his pro se
posttrial motion. Without taking a position on the outcome, we remand for the trial court to
conduct a proper Krankel inquiry. Because remand is necessary on this issue, we need not
consider the other issues raised by defendant on appeal. See Bell, 2018 IL App (4th) 151016,
¶ 37 (“Depending on the result of the preliminary Krankel inquiry, defendant’s other claims may
become moot.”). Upon remand, if the trial court denies the motion, defendant may still appeal
any relevant claims “along with his other assignments of error.” Moore, 207 Ill. 2d at 81-82
(citing Krankel, 102 Ill. 2d at 189).
- 13 - ¶ 30 Remanded with directions.
- 14 -