People v. Cruickshank

2023 IL App (3d) 220119-U

• Court: Appellate Court of Illinois
• Decided: April 27, 2023
• Docket: 3-22-0119
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2023 IL App (3d) 220119-U

Order filed April 27, 2023 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 18th Judicial Circuit, ) Du Page County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-22-0119 v. ) Circuit No. 20-DV-586 ) NICHOLAS S. CRUICKSHANK, ) Honorable ) George A. Ford, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE BRENNAN delivered the judgment of the court. Presiding Justice Holdridge and Justice Albrecht concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: The circuit court did not have jurisdiction to consider defendant’s ineffective assistance of counsel claim.

¶2 Defendant, Nicholas S. Cruickshank, appeals his convictions, arguing that the Du Page

County circuit court erred by failing to conduct a preliminary inquiry pursuant to People v.

Krankel, 102 Ill. 2d 181, 189 (1984). We affirm.

¶3 I. BACKGROUND ¶4 After a bench trial in November 2021, defendant was convicted of two counts of domestic

battery (720 ILCS 5/12-3.2(a)(1), (2) (West 2020)) and one count of aggravated assault (id. § 12-

2(c)(1)). The evidence at trial established that defendant cut his brother’s hand with a sword, and

his brother required stitches. Defendant filed a motion for a new trial, which was denied. On

January 28, 2022, the court sentenced defendant to 24 months’ probation and 60 days in jail.

Defendant’s motion to modify sentence was denied on March 3, 2022.

¶5 Defendant sent two separate documents to the court, which were both filed on March 30,

2022. Initially, defendant had filled out a preprinted motion form. At the top where it said, “Motion

for,” defendant wrote “Appeal.” The form then said, “State the Supreme Court Rule, Code of Civil

Procedure and/or Local Rule on which your Motion is based,” and defendant wrote

“Misrepreasentation.” Where the form said, “State the facts and circumstances that support the

Motion,” defendant wrote “Misrepreasentation on my behalf by my attorney.” Defendant wrote

“Appeal this case” on the bottom where the form said, “State what you are asking the Court to

Order[.]” The form was signed by defendant and dated March 23, 2022. The envelope was

postmarked March 25, 2022. Next, defendant filled out a preprinted notice of appeal form. The

form stated that defendant was appealing the orders from January 28 and March 3. 1 Defendant

checked boxes stating that he sought reversal and vacation of the court’s judgment. He also

checked a box stating “other” and wrote “SCRAM monitoring and probation.” The form stated

that it was sent March 24, 2022, and was postmarked March 25, 2022.

¶6 II. ANALYSIS

1 We note defendant also included that he was appealing an order from January 27, 2023. Clearly the case was finished long before 2023, and there are no court dates listed in the record on any other January 27. Therefore, we assume this was a mistake. 2 ¶7 On appeal, defendant argues that the court should have conducted a preliminary inquiry

pursuant to Krankel, 102 Ill. 2d at 189, when he wrote in his motion, “Misrepreasentation on my

behalf by my attorney.” Under the procedure developed in Krankel and its progeny, when a

defendant raises a pro se posttrial claim of ineffective assistance of counsel, the circuit court is

required to conduct a preliminary inquiry to examine the factual basis of the claim. People v. Jolly,

2014 IL 117142, ¶ 29. If the circuit court determines that a defendant’s pro se claim lacks merit or

only pertains to matters of trial strategy, the court may deny the pro se motion without appointing

counsel. People v. Ayres, 2017 IL 120071, ¶ 11. However, if the defendant’s allegations show

possible neglect of the case, the circuit court should appoint new counsel to represent the defendant

in advancing his or her claims. Id.

¶8 To trigger a preliminary Krankel inquiry,

“ ‘[A] pro se defendant is not required to do any more than bring his or her claim

to the trial court’s attention’ [citations], and thus, a defendant is not required to file

a written motion ([People v.] Patrick, 2011 IL 111666, ¶ 29) but may raise the issue

orally (People v. Banks, 237 Ill. 2d 154, 213-14 (2010)) or through a letter or note

to the court (People v. Munson, 171 Ill. 2d 158, 200 (1996)).” Id. (quoting People

v. Moore, 207 Ill. 2d 68, 79 (2003)).

Although a defendant’s bare assertion of “ineffective assistance of counsel” is sufficient to trigger

a Krankel hearing, the defendant must nevertheless clearly state that he is asserting a claim of

ineffective assistance of counsel. Id. ¶¶ 18-23.

¶9 Here, defendant’s “Motion for: Appeal” alleging “[m]isrepreasentation on my behalf by

my attorney” and his form notice of appeal were filed on the same day. Because they were filed at

the same time, the court lacked jurisdiction to consider any ineffective assistance of counsel

3 argument that defendant might have raised. People v. Darr, 2018 IL App (3d) 150562, ¶¶ 93, 95,

99 (once notice of appeal filed, circuit court divested of jurisdiction to consider Krankel claim).

As we find that the court lacked jurisdiction to conduct a preliminary inquiry, we need not consider

whether defendant’s assertion would have been enough to trigger a preliminary Krankel inquiry.

¶ 10 In coming to this conclusion, we reject defendant’s attempt to distinguish Darr on the basis

that he sent two separate documents in two separate envelopes, as opposed to Darr, where the

defendant included the claim of ineffective assistance of counsel in his notice of appeal. He notes

that his motion was dated March 23, and the notice of appeal stated it was mailed on March 24.

First, we cannot say that defendant was necessarily attempting to raise an ineffective assistance of

counsel claim in the circuit court, as opposed to including it as his basis to appeal to this court. See

People v. Horne, 2022 IL App (3d) 190263-U, ¶ 21. His motion was listed as a “Motion for:

Appeal” with “Appeal this case” written as the remedy requested. It is likely that defendant filled

out that motion before realizing there was a preprinted notice of appeal form.

¶ 11 Second, even if we were to accept that defendant sought to raise his claim in the circuit

court and the motion was written before the notice of appeal, the court still could not have

considered the claim.

“As a general matter, ‘[w]hen the notice of appeal is filed, the appellate court’s

jurisdiction attaches instanter, and the cause is beyond the jurisdiction of the trial

court.’ People v. Bounds, 182 Ill. 2d 1, 3 (1998). Any ruling made by the circuit

court in the absence of jurisdiction is void. People v. Flowers, 208 Ill. 2d 291, 306

(2003).” Darr, 2018 IL App (3d) 150562, ¶ 89.

4 The circuit court lost jurisdiction the moment the notice of appeal was filed, which was the same

day the motion was filed. Therefore, the court could not consider any ineffective assistance of

counsel claim raised by defendant at that time.

¶ 12 III. CONCLUSION

¶ 13 The judgment of the circuit court of Du Page County is affirmed.

¶ 14 Affirmed.