NOTICE 2025 IL App (5th) 240558-U NOTICE Decision filed 08/05/25. The This order was filed under text of this decision may be NO. 5-24-0558 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Fayette County. ) v. ) No. 15-CF-105 ) MARCUS CURRIE, ) Honorable ) Allan F. Lolie Jr., Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE SHOLAR delivered the judgment of the court. Justices Boie and Vaughan concurred in the judgment.
ORDER
¶1 Held: We affirm the trial court’s denial of defendant’s Krankel motion where there is no indication that Krankel counsel was ineffective for not having defendant’s witnesses testify; the court was aware of the substance of their testimony and, thus, there is no reasonable likelihood that the result of the proceeding would have been different.
¶2 Following a bench trial, defendant, Marcus Currie, was convicted of possession of cocaine.
On direct appeal, we held that the evidence was sufficient to prove his guilt beyond a reasonable
doubt but remanded for the court to conduct a Krankel hearing on defendant’s posttrial allegations
that trial counsel was ineffective. People v. Currie, 2019 IL App (5th) 170038-U. Following
remand, the trial court held a Krankel hearing. At that hearing, most of defendant’s allegations
centered on his trial counsel’s failure to call certain witnesses. Defendant testified about their
expected testimony, but none of the proposed witnesses testified. After the hearing, the court found 1 that the proposed testimony would not have changed the outcome of the trial and thus denied
defendant’s motion. Defendant appeals, contending that counsel at the Krankel hearing was
ineffective for not calling the proposed witnesses or at least providing their affidavits. For the
reasons that follow, we disagree and affirm.
¶3 I. BACKGROUND
¶4 At a preliminary hearing, Deputy Josh Wattles of the Fayette County Sheriff’s Department
testified that he discovered a plastic bag containing 60 grams of presumed cocaine from a vehicle
that defendant was driving. At the bench trial, with Judge M. Don Sheafor presiding, the evidence
showed that, in the early morning hours of June 2, 2015, defendant was driving a borrowed car
home to Centralia after spending the day visiting his son in Decatur. After about an hour, at
approximately 3 a.m., two police officers, responding to a third-party call, arrived to assist
defendant. Defendant told them that he swerved to avoid a deer and ended up in a ditch. They
directed him back onto the roadway via a field entrance. Because defendant was on parole, Deputy
Wattles asked him for permission to search the car. Defendant agreed without hesitation, telling
the officers that he had nothing to hide.
¶5 Upon searching the vehicle, Deputy Wattles found a clear plastic bag with white powder.
The bag was in the back seat behind an armrest that could be folded down. Deputy Wattles field-
tested the substance, which tested positive for cocaine. Defendant denied knowing that the cocaine
was in the car. A registration search showed that the vehicle was registered to Inez Calcutt.
¶6 A child’s car seat was directly in front of the armrest console so that a child sitting in the
car seat would have had his back pressing against the armrest. According to Deputy Wattles,
defendant said that his son had been in the car at some point.
2 ¶7 Trial counsel stipulated to the chain of custody for the baggie of cocaine and to the
photographs of the car’s interior where the baggie had been located behind the armrest. Both
officers testified that, when they arrived at the scene, the lights on defendant’s car were off and he
was sitting alone in the dark vehicle. Julia Edwards, of the Illinois State Police crime laboratory,
testified that her report showed that the substance she tested weighed 23.5 grams.
¶8 The trial court found defendant guilty of possession of a controlled substance. In so doing,
the court did not credit defendant’s explanation that he swerved to miss a deer because “if that
were true, he would not be sitting in the car with all the lights off, including the headlights, flashers
or other lights.” The court found that “[i]t appears from this evidence the Defendant did not want
to be seen.” The trial court took judicial notice that “it takes approximately one hour to drive from
Decatur, Illinois, to Vandalia, Illinois, which leads to the inference that the Defendant left Decatur
at 2 a.m. after visiting with his child. It is hard to believe the Defendant left Decatur at 2 a.m. after
visiting with his child. His explanation to the police where he was and what he was doing is not
believable.” The court further noted Deputy Wattles’ testimony that the armrest where the cocaine
was found was partially pulled down and could not be closed because of the drugs and that
defendant said that his son was in the car at some point.
¶9 Defendant filed a pro se motion for a new trial alleging, inter alia, that his attorney
“misrepresent[ed]” him. The court appointed new counsel who filed an amended motion raising
several claims. As relevant here, the motion argued that the court erred by admitting the cocaine
into evidence, given the discrepancy in weight between the amount Deputy Wattles testified to at
the preliminary hearing and the amount Edwards tested. Defendant further argued that trial counsel
was ineffective for stipulating to the admission of the cocaine into evidence. The court denied the
motion, finding that these were strategic decisions.
3 ¶ 10 The court sentenced defendant to six years in prison. On direct appeal, this court rejected
defendant’s contention that the evidence was insufficient to prove his guilt beyond a reasonable
doubt. Currie, 2019 IL App (5th) 170038-U, ¶ 11. However, we held that the court erred by not
conducting a Krankel hearing on defendant’s allegations of ineffective assistance of counsel. We
remanded for the court to conduct such a hearing. Id. ¶ 15.
¶ 11 Following remand, the trial court appointed Krankel counsel. At what the court
characterized as a “pre-Krankel hearing,” defendant explained his ineffective assistance
allegations. He asserted that trial counsel was ineffective, first, for failing to call his son’s mother,
Danielle Hutchison, and grandmother, Tara Rollins, who would have testified that defendant did
not own a car and had to borrow one to drive to Decatur on the day of his arrest. They would also
have said that defendant’s son was never in the car, which could have been corroborated by text
messages from defendant’s phone.
¶ 12 Defendant also claimed that trial counsel was ineffective for failing to call Justin Cole, who
reported to the police that a vehicle was in a ditch. Cole could have testified that defendant was
“trying to flag down help” after the accident.
¶ 13 Defendant also asserted that trial counsel should have admitted defendant’s interrogation
video, which would have shown him telling Deputy Wattles that he was the only one in the car
and that his son was never in it. Defendant argued that trial counsel failed to file a motion to
suppress the cocaine even though “more than half of the evidence was missing.” Defendant
acknowledged that trial counsel stipulated to the chain of custody but argued that he did not know
what the term “stipulate” meant when trial counsel discussed it with him before trial.
¶ 14 Defendant also argued that trial counsel should have moved to have the photo evidence
suppressed, because it conflicted with Deputy Wattles’ testimony at the preliminary hearing that
4 the inside of the vehicle was neat and orderly. Finally, defendant argued that trial counsel failed to
impeach Deputy Wattles.
¶ 15 Throughout the interchange with defendant, the court observed that virtually all of
defendant’s allegations related to trial strategy. Moreover, much of the proposed new evidence
was cumulative of evidence adduced at the trial. Nevertheless, as the judge was not the one who
had presided at trial and Krankel counsel had already been appointed, the court scheduled a full
Krankel hearing.
¶ 16 At that hearing, held before Judge Allan F. Lolie Jr., defendant testified consistently with
his contentions at the preliminary Krankel hearing. He said that Rollins would have testified that
she asked him to come to Decatur for an issue involving his son. She would have said that
defendant told her he did not have a car and would have to borrow one. Hutchison would have
testified that defendant came to Decatur because his son was being abused by his stepfather.
¶ 17 Another potential witness, JeVon Williams, would have testified that, after defendant drove
into the ditch, he called him for help. Williams arrived at about the same time as the police. Cole
would have said that defendant had his flashers on and was trying to flag down help. Trial counsel
did not contact any of these witnesses, nor did he attempt to obtain receipts from the towing
company or defendant’s cell phone records. Nor did he file a motion to suppress the cocaine. He
stipulated to the chain of custody of the cocaine, despite the large discrepancy between the weight
that Deputy Wattles testified to and the amount tested by the crime lab. Defendant acknowledged
that trial counsel attempted to contact Cole before trial but was unable to locate him.
¶ 18 Trial counsel testified that he discussed with defendant before trial what he believed the
main issue was and defendant “implicitly agreed” with his proposed defense. Trial counsel
believed that the key issue was whether the State could prove defendant’s knowledge of the drugs
5 in the vehicle. Defendant did not mention wanting to call any witnesses until, during the State’s
case, he said, “Hey, I want to call certain people.” Trial counsel did not believe that a motion to
suppress was warranted because defendant had consented to a search of the car. He did not contact
Cole because “it was obvious there was an accident” and his testimony would not be “important
to the case at all.” Trial counsel was aware before trial of the discrepancy in the weight of the drugs
and was “happy about it.” He explained: “I felt very strongly, particularly at a bench trial, a lesser
amount, given what I felt like was, at best, a circumstantial case, there was a bigger likelihood that
my client would be found not guilty.”
¶ 19 In closing, Krankel counsel argued that testimony from the proposed witnesses would have
been important, because Judge Sheafor commented adversely on defendant’s credibility,
particularly his stated reason for going to Decatur. The court also commented on the fact that
defendant did not have any lights on in the car or attempt to get help after he went into the ditch.
Krankel counsel argued that the proposed witnesses would have bolstered defendant’s credibility
on these issues. The State responded that trial counsel’s decisions represented a reasonable trial
strategy. The court took the matter under advisement.
¶ 20 The court later issued a written order in which it found that calling defendant’s proposed
witnesses would not have affected the outcome of the case, writing:
“It was undisputed at trial that the Defendant traveled to Decatur to see his child.
The fact that the Defendant called Mr. Williams to come get him does not address the issue
of cocaine possession. Both can be true. A person can travel to Decatur to see his child and
can also possess cocaine. One fact does not make the other less plausible. The court cannot
find that Judge Sheafor’s ruling would have varied had he heard any of that evidence.
6 If there would have been evidence that the Defendant tried to call a tow company,
how would that have made his cocaine possession any less likely? Assuming [trial counsel]
knew of the alleged attempt to contact a tow driver, not showing proof of those records did
not violate the Strickland standards.
The court does not quite understand why [trial counsel] chose not to inquire as to
the discrepancy regarding the cocaine’s weight. Having said that, the sole issue was
knowing possession. [Trial counsel’s] strategy was that the Defendant did not knowingly
possess the cocaine and his defense to that lack of knowledge was all presented in the
State’s case in chief.”
¶ 21 Defendant timely appeals.
¶ 22 II. ANALYSIS
¶ 23 On appeal, defendant contends that Krankel counsel was ineffective. He argues that,
although many of his claims of ineffective assistance of trial counsel revolved around counsel’s
failure to interview and call various witnesses, Krankel counsel never called those witnesses at the
hearing. Thus, according to defendant, the court was unable to evaluate properly the impact of
their proposed testimony. He further contends that Krankel counsel did not provide evidentiary
support for his additional claims regarding his cell phone records and the failure to challenge the
admission of the cocaine into evidence. For the reasons that follow, we disagree and affirm.
¶ 24 Generally, a claim of ineffective assistance of counsel is considered under the familiar
Strickland standard. People v. Cherry, 2016 IL 118728, ¶ 24 (citing Strickland v. Washington, 466
U.S. 668 (1984)). Under that test, to prevail on an ineffective-assistance claim, a defendant must
demonstrate that counsel’s performance fell below an objective standard of reasonableness and
that, but for counsel’s unprofessional errors, there is a reasonable probability that the result of the
7 proceeding would have been different. Id. The defendant must satisfy both elements of the
Strickland standard to prevail on his or her claim. Id.
¶ 25 A Krankel hearing is a critical stage of proceedings to which the right to constitutionally
effective counsel applies. People v. Downs, 2017 IL App (2d) 121156-C, ¶ 41, rev’d on other
grounds, 2015 IL 117934, ¶ 36. Thus, the conduct of Krankel counsel is judged by the Strickland
standard. Id.
¶ 26 A Krankel inquiry typically proceeds in two stages. Id. ¶ 43. At the first stage, the trial
court examines the factual bases of the defendant’s pro se claims. People v. Moore, 207 Ill. 2d 68,
77-78 (2003). If, in this preliminary inquiry, the court finds that the claims lack merit or pertain
only to matters of trial strategy, it may deny the defendant’s motion without appointing new
counsel. Id. at 78. If, however, the court finds possible neglect by counsel, the court should appoint
the defendant new counsel. Id. Following the appointment of new counsel (i.e., Krankel counsel),
the matter proceeds to the second stage, which consists of an evidentiary hearing on the defendant’s
claims. Id.
¶ 27 The standard of review following a Krankel hearing depends on whether the court decided
the merits of the defendant’s claims. People v. Jackson, 2020 IL 124112, ¶ 98. We review de novo
the legal question whether the court properly conducted the preliminary Krankel inquiry. Id. Where
the court properly conducted the inquiry, we will reverse only if its decision on the merits of the
defendant’s Krankel motion was manifestly erroneous. Id. “Manifest error is error that is clearly
evident, plain, and indisputable.” Id.
¶ 28 We agree with the State that it is not reasonably probable that the result of the Krankel
hearing would have been different had defendant’s proposed witnesses personally testified. The
court was aware of their expected testimony. Nonetheless, the court concluded that trial counsel
8 made a strategic decision not to call them and that the strategy was reasonable given that their
testimony—which related only to collateral issues—would not have changed the outcome of the
trial.
¶ 29 The court pointed out at some length that testimony about whether defendant visited his
son while in Decatur, whether his flashers were on at some point after the accident, and whether
he called for help, would not have made it any more or less likely that he constructively possessed
the cocaine in the back seat. Thus, it was not ineffective for trial counsel to omit this evidence and
focus on the key issue of defendant’s lack of knowledge. There is no reasonable likelihood that
having the proposed witnesses testify in person or submit affidavits would have altered this
conclusion.
¶ 30 Defendant argues, however, that Judge Sheafor specifically mentioned several of these
issues in commenting unfavorably on defendant’s credibility. He contends that his proposed
witnesses would have addressed these issues. Our evaluation of counsel’s conduct must “be highly
deferential to trial counsel on matters of trial strategy, making every effort to evaluate counsel’s
performance from his perspective at the time, rather than through the lens of hindsight.” People v.
Perry, 224 Ill. 2d 312, 344 (2007). Defendant views the proposed testimony through the lens of
hindsight. Moreover, the court was aware of Judge Sheafor’s ruling but still concluded that the
witnesses’ testimony would not have changed the result of the trial—a ruling defendant does not
directly challenge.
¶ 31 In his standard of review section, defendant argues that we should essentially disregard the
trial court’s findings and review its decision de novo because Krankel counsel “did not comply
with Krankel procedure.” We are aware of no case or rule imposing rigid procedural requirements
for Krankel hearings. The only case defendant cites in support of this proposition, People v. Kyles,
9 2024 IL App (4th) 230128-U, is distinguishable. There, Krankel counsel pleaded only a
conclusional allegation that trial counsel labored under a conflict of interest. Krankel counsel did
not specify whether the conflict was actual or per se and did not allege any facts in support. Id.
¶¶ 40-42. The reviewing court thus held that the trial court was unable to consider the claim at all.
Id. ¶ 48.
¶ 32 Similarly, in Downs, new counsel did not include any of the defendant’s claims in an
amended motion. The court held that counsel had a duty “to present the nonfrivolous claim with
whatever support he could muster at the second-stage Krankel hearing.” People v. Downs, 2017
IL App (2d) 121156-C, ¶ 56. Here, by contrast, counsel properly pleaded defendant’s ineffective
assistance allegations and supported them with evidence in the form of defendant’s testimony.
¶ 33 Defendant attempts to liken a Krankel hearing to a postconviction proceeding, which is
governed by Rule 651. Ill. S. Ct. R. 651(c) (eff. July 1, 2017). Generally, a postconviction claim
that trial counsel was ineffective for failing to call certain witnesses must be accompanied by
affidavits from the proposed witnesses as “without affidavits, a reviewing court cannot determine
whether these witnesses could have provided any information or testimony favorable to
defendant.” People v. Guest, 166 Ill. 2d 381, 402 (1995). Although a defendant has no
constitutional right to the effective assistance of counsel in a postconviction proceeding, he or she
has the right to reasonably effective counsel. People v. Peoples, 346 Ill. App. 3d 258, 261 (2004).
Counsel may provide unreasonable assistance by, e.g., failing to provide evidentiary support for a
postconviction claim. People v. Turner, 187 Ill. 2d 406, 414 (1999). Defendant contends that
Krankel counsel failed to do so here
¶ 34 The State responds that Rule 651 does not govern Krankel hearings, because the purposes
of these proceedings are distinct. The State further observes that, even in the postconviction
10 context, affidavits from proposed witnesses are not required where the court can glean the
substance of their testimony from other sources in the record. People v. Dupree, 2018 IL 122307,
¶¶ 40-42; see 725 ILCS 5/122-2 (West 2024) (postconviction claims may be supported by
“affidavits, records, or other evidence”). Here, the trial court knew the substance of the proposed
witness testimony from another source, namely defendant’s testimony.
¶ 35 Defendant further contends that the trial court could not properly consider defendant’s
version of the witnesses’ proposed testimony because it was hearsay. The State responds that the
rules of evidence do not apply in “miscellaneous proceedings.” Ill. R. Evid. 1101(b)(3) (eff. Sept.
17, 2019). The State further notes that the prosecutor here did not object to defendant’s testimony
on hearsay grounds and the trial court clearly considered it.
¶ 36 Initially, the testimony was not hearsay. “Hearsay” is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted. Ill. R. Evid. 801(c) (eff. Oct. 15, 2015). The purpose of a Krankel proceeding is
to “facilitate the trial court’s full consideration of a defendant’s pro se claim and thereby
potentially limit issues on appeal” (People v. Ayres, 2017 IL 120071, ¶ 13), not to ascertain the
truth of any additional evidence the defendant claims should have been presented. In this case, the
testimony was not offered to prove the truth of the matters asserted, i.e., whether defendant visited
his son in Decatur, called for help after the accident, or had his flashers on at some point. Thus, it
was not hearsay.
¶ 37 In any event, as the State points out, the prosecutor did not object to defendant’s testimony
on hearsay grounds. The trial court did not disregard it on that basis either. Its order assumes that
the witnesses would have testified as defendant wanted but found that, because the testimony
related only to collateral issues, it would not likely have changed the result of the trial. Defendant
11 does not explain how the court’s decision would have been different had it heard the same
information from the witnesses themselves.
¶ 38 Defendant further contends that Krankel counsel did not introduce evidence to support his
claims that trial counsel should have introduced his phone records and text messages, which would
have shown that he sought help after the accident. As noted above, the trial court was aware of the
substance of the proposed evidence and found that it was reasonable trial strategy not to introduce
it. Presenting the actual documents would not likely have changed this conclusion.
¶ 39 Defendant also argues that Krankel counsel did not support his claim that trial counsel was
ineffective for not moving to suppress the cocaine and stipulating to the chain of custody.
However, defendant does not suggest that any additional evidence could have been presented on
these issues. Defendant’s claims in this regard are based solely on the weight discrepancy. He does
not suggest that evidence existed that the laboratory tested the wrong sample or that someone
tampered with the evidence. In the postconviction context, which defendant insists is analogous to
a Krankel hearing, unless the record contains affirmative evidence otherwise, we “reasonably
presume that postconviction counsel made a concerted effort to obtain evidence in support of
postconviction claims, but was unsuccessful.” People v. Wallace, 2016 IL App (1st) 142758, ¶ 27.
¶ 40 In any event, trial counsel testified at the hearing that his trial strategy was to focus on the
issue of defendant’s knowledge. Where a defendant denies knowledge or possession of drugs,
focusing on perceived flaws in the chain of custody or testing can undermine that defense. People
v. Hunter, 376 Ill. App. 3d 639, 644 (2007) (where defendant’s theory at trial was that he never
possessed the controlled substances, there was no reason to address the characteristics of the
controlled substances and to do so would have been inconsistent with the defense strategy).
¶ 41 In an attempt to show prejudice, defendant contends that
12 “Krankel counsel relied only on [defendant]’s testimony, which was contradicted by trial
counsel’s testimony denying [defendant] told him about the witnesses until the middle of
trial to establish trial counsel was ineffective. *** Ultimately, the trial court rejected each
claim, finding that counsel’s testimony was more credible regarding [defendant]’s claims
challenging the cocaine evidence and calling witnesses to testify in his defense at trial.”
¶ 42 Our review of the record demonstrates that it is unlikely that the proposed witnesses could
have testified from personal knowledge about when defendant informed trial counsel about them.
Moreover, as noted, the court’s findings were not based on credibility. The court assumed that the
witnesses would have testified the way defendant described. It found that it was a reasonable
strategy not to call them given that their testimony related only to collateral issues and thus would
not have changed the result of the trial.
¶ 43 Decisions concerning which witnesses to call and what evidence to present on a
defendant’s behalf are matters of trial strategy that rest with counsel. People v. Munson, 206 Ill.
2d 104, 139-40 (2002). In Downs and Kyles, on which defendant heavily relies, Krankel counsel
essentially failed to raise the issues at all. Downs, 2017 IL App (2d) 121156-C, ¶ 56; Kyles, 2024
IL App (4th) 230128-U, ¶ 43. Here, counsel raised the issues defendant wanted to raise, supported
them with his own testimony, and vigorously argued them. Nothing in the record suggests that the
court’s decision would have been different had the witnesses testified personally or had the court
actually seen defendant’s cell phone records.
¶ 44 III. CONCLUSION
¶ 45 For the foregoing reasons, we affirm the judgment of the circuit court of Fayette County.
¶ 46 Affirmed.