People v. Correa

2023 IL App (4th) 220493-U

• Court: Appellate Court of Illinois
• Decided: May 18, 2023
• Docket: 4-22-0493
• Status: Unpublished

Opinion

2023 IL App (4th) 220493-U NOTICE This Order was filed under FILED May 18, 2023 Supreme Court Rule 23 and is NO. 4-22-0493 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County JAMAR RAUL CORREA, ) No. 17CF863 Defendant-Appellant. ) ) Honorable ) John Casey Costigan, ) Judge Presiding.

JUSTICE TURNER delivered the judgment of the court. Justices Lannerd and Knecht concurred in the judgment.

ORDER

¶1 Held: Remand for a new inquiry into defendant’s pro se claims of ineffective assistance of counsel is warranted where the appellate record does not reveal a complete and adequate inquiry.

¶2 After a February 2019 trial, a jury found defendant, Jamar Raul Correa, guilty of

three counts of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West

2014)). Defense counsel and defendant himself filed several posttrial motions. At a March 2022

hearing, the McLean County circuit court denied the posttrial motions and sentenced defendant

to three consecutive 14-year prison terms. Defendant filed pro se a motion to vacate judgment,

raising a claim of ineffective assistance of defense counsel, and defense counsel filed a motion to

reconsider defendant’s sentence. At an April 15, 2022, hearing, the court first heard and denied

defense counsel’s motion to reconsider defendant’s sentence. The court then commenced an

inquiry pursuant to People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984). While defendant was stating his claims of ineffective assistance of counsel, the court continued the

inquiry to attend to another matter. Thereafter, the State filed a motion to amend the sentencing

judgment. At a May 2022 hearing, the court heard and granted the State’s motion to amend the

sentencing judgment. The court also noted it would enter an order on defendant’s ineffective

assistance of counsel claims. On May 18, 2022, the court entered a written order, declining to

appoint defendant new counsel to investigate his ineffective assistance of counsel claims.

¶3 Defendant appeals, contending the trial court (1) failed to properly conduct a full

Krankel inquiry and (2) denied him the right to a public trial by forcing defendant’s family

members to leave the courtroom during the testimony of minors. We remand the cause with

directions.

¶4 I. BACKGROUND

¶5 In August 2017, a grand jury indicted defendant on three counts of predatory

criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2014)) and one count of

aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(1)(i) (West 2012)). The alleged victim

of the three counts of predatory criminal sexual assault was E.A., and the victim of the

aggravated criminal sexual abuse count was J.D. That same month, the trial court appointed the

public defender to represent defendant. However, private counsel represented defendant from

October 2017 to May 2018, when the court again appointed the public defender to represent

defendant. In June 2018, Brian McEldowney, an assistant public defender, began his

representation of defendant.

¶6 In February 2019, the trial court held a jury trial on just the three counts of

predatory criminal sexual assault of a child. Before the State presented its witnesses, it moved to

exclude witnesses. It also requested the courtroom be closed during the minors’ testimony,

-2- except for three people who were related to the minors and not listed as witnesses. Defense

counsel joined in the motion to exclude and did not take a position on the exclusion of the

general public during the minors’ testimony. The court granted the State’s motions and noted

only the media and representatives for the minors would be allowed to stay in the courtroom for

the minors’ testimony. The State’s second witness was the alleged victim, and the court closed

the courtroom and asked everyone to leave who did not have permission to stay. A spectator

sought to talk, and the court replied, unless the spectator had been given permission to stay, the

spectator had to go into the hall. The spectator complied. After E.A.’s testimony, another minor,

D.B., testified. Both E.A. and D.B. are the children of Shirlene D., who had previously dated

defendant. At the conclusion of the trial, the jury found defendant guilty of all three charges of

predatory criminal sexual assault of a child.

¶7 Defense counsel filed a motion for judgment notwithstanding the verdict or, in the

alternative, a motion for a new trial. The motion did not raise any claims regarding the exclusion

of defendant’s relatives during the minors’ testimony. Defendant filed pro se multiple posttrial

motions, one of which raised a challenge to the trial court’s exclusion of his parents and brother

from the courtroom during the minors’ testimony. Given the State’s petition for leave to appeal

in People v. Schoonover, 2019 IL App (4th) 160882, 158 N.E.3d 253, the trial court continued

the hearing on the posttrial motions until the supreme court’s decision in People v. Schoonover,

2021 IL 124832, 190 N.E.3d 802, which reversed this court’s judgment. On March 8, 2022, the

court held a hearing on the posttrial motions. The court denied them and proceeded to

sentencing. At the conclusion of the sentencing hearing, the court sentenced defendant to three

consecutive prison terms of 14 years.

¶8 On March 30, 2022, defendant filed pro se a motion to vacate the judgment,

-3- raising an ineffective assistance of counsel claim based on McEldowney’s contemporaneous

representation of him and Shirlene D. The next day, McEldowney filed a motion to reconsider

defendant’s sentence. On April 15, 2022, the trial court held a hearing and first denied the

motion to reconsider defendant’s sentence. The court then commenced a Krankel inquiry.

Defendant began by describing his per se conflict of interest claim and also asserted an actual

conflict of interest. Defendant also mentioned McEldowney’s failure to object to the closing of

the courtroom when defendant’s immediate family was present. Defendant last asserted

McEldowney should have sought to exclude two of the jurors who had a personal relationship

with the trial judge. At that point, the court noted it had another matter come up and it would

have to continue the inquiry to April 29, 2022. The court did not ask defendant or McEldowney

any questions during the inquiry.

¶9 The docket sheet does not note a hearing took place on April 29, 2022, and in his

brief, defendant states the McLean Country trial court administrator noted the hearing date of

April 29, 2022, was vacated. On May 6, 2022, the State filed a motion to amend the sentencing

judgment. On May 11, 2022, the docket sheets state the trial court commenced a hearing on the

State’s motion to amend but continued the hearing to give the court an opportunity to review the

motion to amend. The record on appeal lacks a transcript for the May 11, 2022, hearing.

However, at the next hearing on May 13, the court noted it did not receive the State’s motion

until five minutes before the May 11 hearing and was unsure what the State was requesting.

Thus, the court decided to continue the hearing to give it more time to review the motion. At the

May 13, 2022, hearing, the court heard the State’s motion to amend. Defendant chose to proceed

pro se on the motion, noting he had too many issues with McEldowney and did not want to

further damage his case. After hearing the parties’ arguments, the court granted the State’s

-4- motion to amend. The court did note it expected to have a ruling on the claims of ineffective

assistance of counsel the following week.

¶ 10 On May 18, 2022, the trial court entered a written order on the Krankel inquiry,

declining to appoint counsel to investigate defendant’s claims of ineffective assistance of

counsel. In the order, the court referred to statements by McEldowney about his representation

of Shirlene D. The court found the per se conflict of interest claim was conclusory, misleading,

and legally immaterial but did not address defendant’s claim of an actual conflict. The court also

found defendant’s claims regarding stipulations and his arrest warrant were legally immaterial.

The court further found defendant’s claims related to counsel’s (1) failure to assert an affirmative

defense, (2) failure to question the minors about sexual knowledge, (3) failure to call Shirlene D.

as a witness, (4) failure to properly impeach witnesses, and (5) alleged prejudicial remarks

during his opening statement were all matters of trial strategy.

¶ 11 On June 9, 2022, defendant filed a timely notice of appeal in sufficient

compliance with Illinois Supreme Court Rule 606 (eff. Mar. 12, 2021). Accordingly, this court

has jurisdiction of defendant’s convictions and sentences under Illinois Supreme Court Rule 603

(eff. Feb. 6, 2013).

¶ 12 II. ANALYSIS

¶ 13 On appeal, defendant contends the trial court did not conduct a proper Krankel

inquiry. The State asserts the court was not expressly obligated to receive input from trial

counsel and addresses the merits of defendant’s ineffective assistance of counsel claim based on

a per se conflict of interest. We agree with defendant the record on appeal does not reveal a

complete and adequate Krankel inquiry and do not address the merits of the per se conflict of

interest argument.

-5- ¶ 14 A pro se posttrial claim alleging ineffective assistance of counsel is governed by

the common-law procedure developed by our supreme court in Krankel and refined by its

progeny. People v. Roddis, 2020 IL 124352, ¶ 34, 161 N.E.3d 173. “The procedure encourages

the trial court to fully address these claims and thereby narrow the issues to be addressed on

appeal.” Roddis, 2020 IL 124352, ¶ 34. Under the supreme court’s procedures, the circuit court

does not automatically appoint counsel when a defendant presents a pro se posttrial claim

alleging ineffective assistance of counsel. Roddis, 2020 IL 124352, ¶ 35. Rather, the court first

examines the factual basis of the defendant’s claim. Roddis, 2020 IL 124352, ¶ 35. It does so by

conducting some type of inquiry into the underlying factual basis of the defendant’s pro se

ineffective assistance of counsel claim. People v. Ayres, 2017 IL 120071, ¶ 11, 88 N.E.3d 732.

“Specifically, the trial court must conduct an adequate inquiry ***, that is, inquiry sufficient to

determine the factual basis of the claim.” (Internal quotation marks omitted.) Ayres, 2017 IL

120071, ¶ 11. In doing so, the court considers the merits of defendant’s allegations in their

entirety. Roddis, 2020 IL 124352, ¶ 61.

¶ 15 If the trial court determines 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 claim.

Roddis, 2020 IL 124352, ¶ 35. “However, if the allegations show possible neglect of the case,

new counsel should be appointed.” Roddis, 2020 IL 124352, ¶ 35. New counsel can then

independently evaluate the defendant’s claim and avoid the conflict of interest trial counsel

would have in trying to justify his or her own actions contrary to the defendant’s position.

Roddis, 2020 IL 124352, ¶ 36. New counsel also represents the defendant at the hearing on the

pro se ineffective assistance of counsel claim. Roddis, 2020 IL 124352, ¶ 36.

¶ 16 Whether the trial court conducted an adequate Krankel inquiry into the

-6- defendant’s pro se allegations of ineffective assistance of counsel presents a legal question that

we review de novo. People v. Jackson, 2020 IL 124112, ¶ 98, 162 N.E.3d 223. When the court

has properly conducted a Krankel inquiry and has reached a determination on the merits of the

defendant’s Krankel motion, this court will reverse that determination only if the circuit court’s

action was manifestly erroneous. Jackson, 2020 IL 124112, ¶ 98. “Manifest error is error that is

clearly evident, plain, and indisputable.” Jackson, 2020 IL 124112, ¶ 98.

¶ 17 Here, the trial court began a Krankel inquiry on April 15, 2022, but continued it

while defendant was still setting forth his claims of ineffective assistance of counsel. The court

asked neither defendant nor defense counsel questions during the April 15, 2022, inquiry. The

record on appeal contains no evidence the court resumed the Krankel inquiry. Moreover, the

State does not assert the court did have another hearing date and does not contest the Office of

the State Appellate Defender’s (OSAD) assertion the McLean County trial court administrator

stated the hearing date of April 29, 2022, was vacated. We recognize the court’s language in its

written order declining to appoint defendant new counsel refers to statements by McEldowney

not made and claims not raised by defendant on April 15, 2022, suggesting the court may have in

fact resumed the Krankel inquiry. While we agree with the State the court did not have to

question defense counsel, the language of its order suggests it may have done so. Here, the

record fails to show where the court undertook such questioning, and OSAD appears to have

diligently searched for another hearing date at which the continued inquiry occurred. With no

evidence of a continued inquiry, defendant appears not to have had the opportunity to state all of

his ineffective assistance of counsel claims, and an adequate factual basis to determine his

ineffective assistance of counsel claims was not developed. Moreover, the court’s order itself

fails to address defendant’s claims defense counsel had an actual conflict of interest and

-7- counsel’s failure to object to the exclusion of defendant’s immediate family from the courtroom

constituted ineffective assistance, both of which defendant raised on April 15, 2022. As stated,

one purpose of the Krankel procedures is to have the trial court fully address the ineffective

assistance of counsel claims and narrow the issues to be addressed on appeal. Roddis, 2020 IL

124352, ¶ 34. The procedures in this case fall short, and we remand the case for the limited

purpose of conducting a new Krankel inquiry at which defendant can present all of his claims of

ineffective assistance of counsel and the court can make an adequate inquiry into those claims on

the record.

¶ 18 Given our decision to remand for a new Krankel inquiry, we decline to address

defendant’s other claim on appeal but do retain jurisdiction of it. Depending on the result of the

Krankel proceedings, that issue may become moot. See People v. Bell, 2018 IL App (4th)

151016, ¶ 37, 100 N.E.3d 177.

¶ 19 III. CONCLUSION

¶ 20 For the reasons stated, we remand the cause to the McLean County circuit court to

conduct a new Krankel inquiry into defendant’s ineffective assistance of counsel claims.

¶ 21 Cause remanded with directions.

-8-