NOTICE 2025 IL App (4th) 231371-U This Order was filed under FILED Supreme Court Rule 23 and is NO. 4-23-1371 January 15, 2025 not precedent except in the Carla Bender th limited circumstances allowed 4 District Appellate IN THE APPELLATE COURT under Rule 23(e)(1). Court, IL OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County MOHAMED A. DIDA, ) No. 21CF1216 Defendant-Appellant. ) ) Honorable ) J. Casey Costigan, ) Judge Presiding.
JUSTICE GRISCHOW delivered the judgment of the court. Presiding Justice Harris and Justice Steigmann concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, concluding (1) defendant’s stipulated bench trial was not tantamount to a guilty plea and, accordingly, the trial court was not required to comply with Illinois Supreme Court Rule 402 (eff. July 1, 2012), personally admonish him about the stipulation agreed to by his counsel, or ask if he personally agreed to the stipulation; (2) the court did not err in (a) denying defendant’s request to represent himself or (b) not sua sponte ordering a fitness evaluation before sentencing; and (3) the court sufficiently considered defendant’s pro se claim of ineffective assistance of counsel and did not need to appoint independent counsel for further proceedings pursuant to People v. Krankel, 102 Ill. 2d 181 (1984).
¶2 Following a stipulated bench trial, defendant, Mohamed A. Dida, was found guilty
of one count of aggravated stalking (720 ILCS 5/12-7.4(a)(3) (West 2020)) and one count of
violating an order of protection (id. § 12-3.4(a)(1)). The trial court sentenced defendant to five
years in prison. Defendant appeals, asserting multiple errors by the court. For the reasons that
follow, we affirm. ¶3 I. BACKGROUND
¶4 A. Defendant’s Charges and Stipulated Bench Trial
¶5 On November 17, 2021, the State charged defendant with aggravated stalking (id.
§ 12-7.4(a)(3)), cyberstalking (id. § 12-7.5(a)(2)), and violation of an order of protection (id. § 12-
3.4(a)(1)). On September 6, 2022, defendant’s counsel and the State informed the trial court of its
intention to have the aggravated stalking and violation of an order of protection counts adjudicated
through a stipulated bench trial. The cyberstalking count, and a perjury count in a separate case,
were dismissed on motion of the State.
¶6 According to the stipulations entered between the State and defendant’s counsel,
defendant was served with an order of protection in October 2021. Defendant was prohibited from
having any contact with his former wife, Shannon S. Defendant had already been ordered to have
no contact with Shannon as a condition of his bond in a separate case in McLean County. After
their marriage was dissolved in an Islamic divorce, Shannon “was unequivocal” that she no longer
wanted to have contact with defendant. In November 2021, Shannon met with Normal Police
Department Detective Elizabeth Hedges to report that defendant sent her various messages and
images and called her numerous times. Specifically, “[Shannon] would testify that she recognized
the messages as coming from the phone number she knows to be associated with [defendant]
through prior contacts, and that messages sent through the WhatsApp account were from the
account she knew to be associated with him.” Shannon also was able to recognize defendant’s
voice. Additionally, the messages were written in a manner similar to how defendant wrote,
containing grammar reflective of English not being the writer’s first language, quotations from the
Quran, and references to previous experiences the writer and Shannon shared.
¶7 According to the stipulations, between October 20, 2021, and November 12, 2021,
-2- defendant made the following contacts with Shannon: 2 missed voice calls, 37 missed video calls,
76 text messages, 16 images (including one of Shannon and her daughter), 8 audio recordings, and
6 videos (of himself). Shannon found these communications disturbing, and they caused her to
fear for her and her daughter’s safety. Between November 10 and 16, 2021, defendant called
Shannon 24 times. Between November 8 and 16, 2021, defendant sent Shannon 79 text messages,
including messages containing pictures of her bedroom, “a selfie of himself making a kissing
face,” and other photographs, which made her feel “violated and threatened.”
¶8 Regarding the prospective bench trial, the State informed the court its entire case
would be by stipulation. Defense counsel indicated they would not present any additional evidence
but would not agree the stipulated evidence offered by the State would be sufficient. The court
then admonished defendant as to the charges and possible penalties, explaining a bench trial was
tantamount to a guilty plea.
¶9 After admonishing defendant about the charges and possible penalties, the trial
court inquired of him regarding his intention to reject the State’s plea offer, which was four years
in the Illinois Department of Corrections plus court costs. Defendant expressed his understanding
of the offer but rejected it, as he was adamant he would never say he was guilty. Defendant
maintained, “I will go to court, plead not guilty.” The court noted defendant voluntarily chose to
reject the State’s offer and desired to proceed with a stipulated bench trial. Defendant agreed.
¶ 10 After finding defendant made a “knowing and voluntarily [sic] rejection of the
State’s final offer in this matter,” the trial court stated it reviewed the facts of the stipulations
entered into by the State and defendant’s counsel. The court confirmed the State was not going to
present additional evidence and defendant’s counsel was not going to present any.
¶ 11 The trial court told defendant that while it was a “stipulated bench trial,” it was
-3- “tantamount to a guilty plea.” The court explained defendant’s right to plead not guilty and to
require the State to prove him guilty beyond a reasonable doubt. The court continued, “And you
understand by pleading guilty today—I’m sorry. You understand that by going through this
process here today that you are waiving your right to a jury trial?” Defendant answered, “Yes.”
The court then informed defendant about his right to testify, his right to call witnesses, his right to
cross-examine witnesses, and his right to be represented by an attorney. The court then asked,
“You understand that you’re waiving those rights by going through this process here today?”
Defendant answered, “Yes.” The court asked, “Has anybody forced you to go through this process
here today?” Defendant answered, “No.” The court then informed defendant about the potential
immigration consequences of a conviction, the possibility of receiving consecutive sentences in
the event of a future conviction, and the potential implications of a conviction for employment,
housing, and obtaining a driver’s license. Defendant stated he understood. The court determined
the State proved defendant’s guilt beyond a reasonable doubt and, accordingly, found him guilty
of aggravated stalking and violation of an order of protection.
¶ 12 B. The Initial Sentencing Hearing
¶ 13 The trial court began the sentencing hearing on October 25, 2022. Defendant’s
counsel informed the court that, shortly before the hearing began, defendant expressed his desire
to proceed pro se. The court confirmed this with defendant. The court told defendant it needed to
make sure he understood “the nature of the charges and the possible penalties with regard to the
charges” of which it found him guilty. When asked if he understood the nature of, and possible
penalties for, the aggravated stalking count, defendant answered, “Yes.” When asked if he
understood the nature of, and possible penalties for, the violation of an order of protection count,
defendant answered, “I understand and I say I’m not guilty.” Defendant continued:
-4- “I was sent a document three pages when I was in prison and
it says the attorney and the State have agreed, a stipulation. I object
that. That is between them. The sentencing is not by the state
attorney or my attorney.
And all I was told is based on unconstitutional and all the
cases will be dropped when you come to court. Because when I came
to court I had 2,000 pages of my side of the story, and I was told
don’t present it and don’t give it because everything had been
dropped and just keep quiet.
So I object because of—because I was not admonished.”
¶ 14 After the trial court stated it believed defendant was “right here in the courtroom
when [it] went over everything with [him] at that point in time,” defendant continued:
“I object to the stipulation between the State and the attorney
because I was not admonished. When I had the court on August 31st
I was not presented in court. I had a court on 6th of September.
When I came—I came nobody talked to me. The State suggested
something to the attorney, and then the attorney told me information
that everything would get dropped so I kept quiet.”
¶ 15 The trial court told defendant, after examining its docket entry for the September 6,
2022, hearing, that it found the stipulated evidence to be sufficient to convict him, and while that
circumstance “would not require” the admonishments pursuant to Illinois Supreme Court Rule 402
(eff. July 1, 2012), it nevertheless provided them. The court continued: “So now I’m going to go
back to my original questions. Do you understand the nature of the allegations that the Court made
-5- a finding of guilt on and the possible penalties with regard to those allegations?” Defendant
answered, “No.” The court stated, “The Court will find that the defendant does not understand.
The Court will not allow counsel to withdraw with the Defendant not being able to understand.”
Defendant then told the court he said he was not guilty at the September 6 hearing. The court
responded it made a finding of guilt based on the stipulations. The court ultimately decided to
continue the hearing so it could review the transcript of the September 6 hearing. The court told
defendant, “If you understand everything, you’re competent to represent yourself then the Court
will allow you to go pro se.”
¶ 16 C. The Continued Sentencing and Initial Krankel Hearing
¶ 17 The trial court continued the sentencing hearing on November 10, 2022. The court
noted defendant filed a “pro se motion to withdraw plea of guilty,” which also contained a claim
of ineffective assistance of counsel. Defendant stated he wanted to represent himself. The court
summarized the nature of, and possible penalties for, the aggravated stalking count, and asked
defendant if he had any questions. Defendant answered, “I don’t have questions, but I say that I
am not guilty. I don’t have questions, but I say that I am not guilty.” The court asked, “You
understand that the Court has already made a finding of guilt. Do you understand that?” Defendant
answered, “No, I don’t understand that.” Defendant continued, “They say that I have been found
guilty. I say I am not guilty.” The court stated:
“And I have indicated to you that I have found you guilty.
And you say that you don’t understand that. I don’t know what you
don’t understand about that. But based upon that, I am not going to
allow this proceeding to go forward with you acting pro se with that
lack of understanding that you have been found guilty. And so Mr.
-6- Pioletti is going to stay in and represent you in this case. I am going
to deny his request to withdraw. We are going to go forward with
the sentencing at this point in time.”
¶ 18 The trial court then invited defendant to explain how his attorney rendered
ineffective assistance. Defendant stated his attorney told him “the State is dropping the charges.”
Defendant needed only to come to court and “say yes to the questions that the judge will ask
[him].” Defendant did not want to do so, as he had not written Shannon any messages or called
her at all during the operation of the order of protection and had “316 written documents”
purporting to demonstrate his innocence. Defendant stated he had “three witnesses who were ready
to come” testify he did not write any messages or make any calls to Shannon. Defendant’s counsel
reported calling these witnesses, but a language barrier prevented him and the witnesses from
communicating with each other; “so he rubbished the witnesses and he is forcing me into what I
don’t understand.” Defendant concluded by asserting “the information and the guidance” from his
attorney “was not up to date.”
¶ 19 The trial court invited defendant’s counsel to respond. The court described the
hearing as “a Krankel hearing or initial Krankel inquiry” (see People v. Krankel, 102 Ill. 2d 181
(1984)), in which defendant could assert a claim of ineffective assistance of counsel, counsel could
respond, and the State would not participate. Counsel stated the perjury case and the cyberstalking
count in the instant case were dropped as part of a resolution negotiated with the State. There was
“no communication” to defendant of the instant case being dropped in its entirety. Counsel stated
he told defendant he was “going to be found guilty of these charges” right before the stipulated
bench trial. Counsel continued, “I told [defendant] that that is what’s going to happen; not that the
charges were going to be dropped; that you were going to be found guilty.” Counsel then stated he
-7- spoke twice over the phone with one of defendant’s witnesses. However, “what he exactly had to
offer to our situation was not ever clear to [counsel].” Additionally, counsel and this witness “had
a very hard time communicating.” During the second phone conversation counsel had with this
witness, he “didn’t really get very far.” As for the other witnesses, counsel said it was “never clear”
what they “would have to offer to the facts of this case” and counsel did not communicate with
them. Counsel emphasized defendant “had a copy of the stipulations” and “understood what the
procedure was going to be.”
¶ 20 The trial court found defendant’s claim of ineffective assistance of counsel lacked
merit, pertained to trial strategy (specifically, regarding which witnesses, if any, counsel would
have called), and was conclusory. The court stated defendant understood that while the perjury
case was dismissed in its entirety, the instant case was not, and only the cyberstalking count was
being dismissed. The court declined to appoint independent counsel to investigate whether
defendant’s counsel rendered ineffective assistance.
¶ 21 On December 20, 2022, defendant filed a pro se “Motion to Withdraw Guilty Plea
and Vacate Sentence.” On January 9, 2023, the trial court denied defendant’s motion, as he never
pled guilty.
¶ 22 This appeal followed.
¶ 23 II. ANALYSIS
¶ 24 On appeal, defendant asserts the trial court erred in multiple respects. First,
defendant argues the court erred by failing to (1) adequately advise him that his stipulated bench
trial was tantamount to a guilty plea, (2) substantially comply with Illinois Supreme Court Rule
402 (eff. July 1, 2012), (3) personally admonish him about the stipulation agreed to by defense
counsel, and (4) ask him if he personally agreed to the stipulation. Second, defendant argues the
-8- court erred by denying his request to represent himself or, alternatively, by not ordering a fitness
evaluation after he stated he did not understand the court found him guilty pursuant to a stipulated
bench trial. Finally, defendant argues the court failed to conduct a proper inquiry into his pro se
claim of ineffective assistance of counsel pursuant to Krankel, necessitating a remand for the
appointment of new counsel and for further proceedings.
¶ 25 A. Defendant’s Stipulated Bench Trial
¶ 26 Defendant argues that because the State presented its entire case by stipulation and
he did not preserve a defense, the trial court needed to substantially comply with Illinois Supreme
Court Rule 402 (eff. July 1, 2012), as well as admonish him about the stipulation and ask if he
personally agreed with it. The State disagrees, contending the court was not required to provide
these admonishments to defendant because he only stipulated to the evidence that was presented
and not to its sufficiency to convict him. According to the State, defendant is conflating his
stipulated bench trial with those that are tantamount to a guilty plea.
¶ 27 The Appellate Court, Second District, has explained:
“A stipulated bench trial is a legal fiction created solely to
give defendants the benefit and convenience of a guilty plea while
avoiding the consequences of waiver or forfeiture. [Citation.] In a
stipulated bench trial, a defendant enters a plea of not guilty, and a
‘trial’ is held based on a set of facts agreed to by the parties.
Although there is a remote theoretical possibility that the defendant
may be acquitted, the reality is that factual guilt is a foregone
conclusion.” People v. Gonzalez, 313 Ill. App. 3d 607, 617 (2000).
¶ 28 In People v. Campbell, 208 Ill. 2d 203, 221 (2003), our supreme court held a
-9- defense attorney “may waive [the defendant’s] sixth amendment right of confrontation by
stipulating to the admission of evidence as long as the defendant does not object to or dissent from
his attorney’s decision, and where the decision to stipulate is a matter of legitimate trial tactics or
prudent trial strategy.” However, “[w]here the stipulation includes a statement that the evidence is
sufficient to convict the defendant or where the State’s entire case is to be presented by stipulation,
*** a defendant must be personally admonished about the stipulation and must personally agree
to the stipulation.” Id.; see People v. Mueller, 2013 IL App (5th) 120566, ¶ 13 (distinguishing
stipulated bench trials where “the defendant stipulates to the State’s evidence, not to the legal
conclusion to be drawn from that evidence” from those where “the stipulation includes a statement
that the evidence is sufficient to convict the defendant,” which is “tantamount to a guilty plea
regardless of whether a defense was presented or preserved”).
¶ 29 In People v. Rowell, 229 Ill. 2d 82, 103 (2008), our supreme court endeavored to
“clarify” Campbell, explaining, “[its] holding in Campbell is that admonishments are required
when the State’s entire case is presented by stipulation and the defendant does not present or
preserve a defense.” (Emphasis in original.) Later, in People v. Clendenin, 238 Ill. 2d 302, 321
(2010), our supreme court noted, “Rowell *** provided the opportunity *** for us to clarify what
it means for a stipulation to be tantamount to a guilty plea.” Citing Campbell and Rowell, the
Clendenin court summarized that a stipulated bench trial “may be tantamount to a guilty plea in
two instances: (1) when the State’s entire case is to be presented by stipulation and the defendant
does not present or preserve a defense; or (2) the stipulation includes a statement that the evidence
is sufficient to convict the defendant.” (Emphases in original.) Id. In such cases, the trial court
must also admonish the defendant according to Rule 402(a). See People v. Taylor, 2018 IL App
(2d) 150995, ¶ 7. Specifically, the trial court must substantially comply with, inter alia, the
- 10 - requirement pursuant to Rule 402(a) to make sure the defendant understands
“(1) the nature of the charge; (2) the minimum and maximum
sentence prescribed by law; (3) that he has a right to plead not guilty
or guilty; and (4) if he pleads guilty, he waives the right to a trial by
jury and the right to be confronted with the witnesses against him.”
People v. Haywood, 2016 IL App (1st) 133201, ¶ 36.
“Whether a stipulated bench trial was tantamount to a guilty plea is a question of law, which this
court reviews de novo.” People v. Foote, 389 Ill. App. 3d 888, 893 (2009).
¶ 30 At the outset, we note defendant did not object to the stipulation offered on his
behalf by his attorney at the stipulated bench trial. See Campbell, 208 Ill. 2d at 221. While
defendant stated at the initial sentencing hearing, “I object to the stipulation,” the record reflects
that at the stipulated bench trial, the trial court asked him, “And so with regard to that offer you’ve
voluntarily chosen to reject that offer and proceed forward with the stipulated bench trial; is that
right?” to which he answered, “Yes.” Additionally, we note defendant did not stipulate to the
sufficiency of the evidence to convict him. When asked by the court if the stipulation was to the
sufficiency of the evidence for a conviction, defendant’s counsel answered, “Well, we’re not
explicitly agreeing that the evidence would be sufficient, but we’re not presenting any further
evidence.” As for the other circumstance in which a stipulated bench trial is tantamount to a guilty
plea, the State’s entire case was presented by stipulation, but defendant did express having a
defense. Defendant insisted multiple times, during the stipulated bench trial hearing as well as the
initial and continued sentencing hearings, that he was “not guilty.” Specifically, defendant denied
making any calls or sending any messages to Shannon and claimed to have three witnesses and
over 300 pages of documents purporting to exonerate him of any of the wrongdoing reflected in
- 11 - the stipulations (and 2,000 pages more generally reflecting his “side of the story.”)
¶ 31 In his reply brief, defendant argues such representations before the trial court were
not sufficient to “preserve a defense” in this context. In particular, “while [defendant] could claim
innocence and contest one of more of the stipulated facts, this does not preserve a genuine defense
to the charged counts as defense counsel signed a written stipulation agreeing to the presence of
facts that [defendant] personally denied.” In support of this proposition, defendant cites the
decision of the Appellate Court, First District, in People v. Russ, 31 Ill. App. 3d 385 (1975). In
Russ, the court noted that when “the stipulation might encompass all the essential facts of the
State’s case-in-chief and the ‘defense’ might consist solely of defendant’s testimony purporting
simply to deny one or more of the stipulated facts,” then “the reality of the situation is that the
defendant has interposed no genuine defense whatever and there actually is no issue of guilt or
innocence for the trial judge to determine; hence, despite the purported defense, the stipulation is
tantamount to the entry of a plea of guilty.” Id. at 389. By contrast, in a stipulated bench trial where
“there is presented a genuine defense with testimony in support
thereof introduced by way of stipulation or otherwise (which
testimony does not consist of a mere denial of facts in the State’s
case-in-chief, to which facts defendant had already stipulated), the
proceeding is not tantamount to the entry of a plea of guilty to any
offense and no compliance with Supreme Court Rule 402 is called
for.” Id. at 392.
¶ 32 We note Russ is not a supreme court decision, but an appellate court decision.
Moreover, it significantly precedes Campbell, Rowell, and Clendenin. Nevertheless, our supreme
court addressed Russ in People v. Galarza, 2023 IL 127678, which, we note, is the only post-
- 12 - Campbell decision by the supreme court even citing Russ. The defendant in Galarza (like
defendant in the instant case) cited Russ to support the proposition that “because his defense was
only the denial of the very facts to which he stipulated, his bench trial was tantamount to a guilty
plea.” Id. ¶ 49 (“In Russ, the appellate court explained that merely denying stipulated facts, without
more, cannot constitute a meaningful defense in the context of a stipulated bench trial.”). The
supreme court concluded the defendant “did more than deny stipulated facts, he presented a
defense.” Id. ¶ 51. By asserting he was not the driver of the vehicle at the time of the accident at
issue and affirmatively claiming someone else was, the defendant in Galarza “challenged the
sufficiency of the evidence” in a way that “presented a genuine question of fact for the trial court
to decide.” Id. Therefore, the defendant’s stipulated bench trial was not tantamount to a guilty plea,
and compliance with Rule 402 was not necessary. Id. ¶ 52.
¶ 33 The same outcome is warranted here, and for the same reason. Defendant
repeatedly asserted he was “not guilty,” but his “defense” was not limited to a bare denial of the
facts to which he stipulated. Rather, defendant stated he had never made any calls or sent any
messages to Shannon during the operation of the order of protection and had available three
witnesses and at least 300 pages of documentation purporting to support his claim of innocence.
As defendant did not merely deny stipulated facts, but “challenged the sufficiency of the evidence”
so as to create “a genuine question of fact for the trial court to decide,” he preserved a defense for
purposes of the inquiry into whether his stipulated bench trial was tantamount to a guilty plea. Id.
¶ 51. Defendant’s trial did not bear both characteristics of a stipulated bench trial tantamount to a
guilty plea, namely the State presenting its entire case by stipulation and defendant not presenting
or preserving a defense. See Clendenin, 238 Ill. 2d at 321 (citing Campbell and Rowell in noting
“the test is conjunctive, requiring both elements to be present before admonishments and a personal
- 13 - waiver are required” (emphasis in original)). Defendant’s stipulated bench trial was not tantamount
to a plea of guilty. Accordingly, contrary to defendant’s position, the trial court was not required
to admonish him pursuant to Rule 402 (though, as the State points out, the court did so anyway “in
an abundance of caution”) or to personally admonish him of the stipulation and determine if he
personally agreed with it.
¶ 34 B. The Trial Court Did Not Err by Denying
Defendant’s Request to Represent Himself
¶ 35 Next, defendant argues the trial court erred by denying his request to represent
himself. Defendant asserts the court denied his request to represent himself because it “interpreted
[his] continued protestations of innocence as an inability to understand the nature of the
proceedings,” while understanding that the court found him guilty is not a condition of his right of
self-representation. In response, the State contends the court properly denied defendant’s request
since he expressed not understanding “a topic necessary for self-representation” under the
pertinent legal standards. In his reply brief, defendant contends that rather than an inability to
understand what had taken place, the record reflects his “frustration with the legal process” and
confusion as to “how counsel could stipulate to elements of the offense that he contested.”
¶ 36 “Both the Federal and State Constitutions grant to an accused the right of self-
representation in criminal proceedings.” People v. Gibson, 136 Ill. 2d 362, 374 (1990). As our
supreme court has said, “The constitution does not force a lawyer upon a defendant. He may waive
his constitutional right to counsel if he knows what he is doing and his choice is made with his
eyes open.” People v. Nelson, 47 Ill. 2d 570, 574 (1971). Specifically, the trial court “shall not
permit a waiver of counsel by a person accused of an offense punishable by imprisonment without
first *** determining that he understands,” inter alia, “the nature of the charge” and the “minimum
- 14 - and maximum sentence prescribed by law.” Ill. S. Ct. R. 401(a)(1)-(2) (eff. July 1, 1984).
¶ 37 This court has identified “only three possible grounds for denying a defendant’s
request to proceed pro se.” People v. Woodson, 2011 IL App (4th) 100223, ¶ 24. As pertinent to
this appeal:
“ ‘Third, defendant’s request for self-representation may be denied
when, despite the [trial] court’s efforts to explain the consequences
of waiver, the court finds the defendant is unable to reach the level
of appreciation needed for a knowing and intelligent waiver.’ ” Id.
“On review, the trial court’s decision on a defendant’s election to represent himself will be reversed
only if the court abused its discretion.” People v. Hunt, 2016 IL App (1st) 132979, ¶ 16. “An abuse
of discretion will be found only when the trial court’s ruling is arbitrary, fanciful, unreasonable, or
where no reasonable person would take the view adopted by the trial court.” People v. Hood, 2022
IL App (4th) 200260, ¶ 86.
¶ 38 We conclude the trial court did not abuse its discretion in denying defendant’s
request to represent himself. During the initial sentencing hearing, the court asked defendant, “Do
you understand the nature of the allegations that the Court made a finding of guilt on and the
possible penalties with regard to those allegations?” Defendant answered, “No.” Due to
defendant’s expressed lack of understanding, the court did not allow him to represent himself. At
the continued sentencing hearing, after protesting that he was not guilty, the court asked, “You
understand that the Court has already made a finding of guilt. Do you understand that?” Defendant
answered, “No, I don’t understand that.” Consequently, the court again denied defendant’s request
to represent himself. Defendant’s apparent inability at his sentencing hearings to understand the
nature of the allegations, the possible penalties, and the fact that the court had found him guilty at
- 15 - a prior proceeding bears upon his ability to understand “the nature of the charge” and “minimum
and maximum sentence prescribed by law” as a condition of allowing him to represent himself,
and “ ‘the level of appreciation needed for a knowing and intelligent waiver.’ ” Woodson, 2011 IL
App (4th) 100223, ¶ 24. The court’s denial of defendant’s request to represent himself was not an
abuse of discretion, as it was not arbitrary, fanciful, unreasonable, or something with which no
reasonable person would agree. Hood, 2022 IL App (4th) 200260, ¶ 86.
¶ 39 C. Whether Trial Court Erred by Not Requiring a Fitness Evaluation
¶ 40 As an alternative basis for remanding this matter, defendant argues “if the [trial]
court truly believed [he] was incapable of representing himself because he did not understand the
proceedings, the court should have ordered a fitness evaluation” before sentencing him. In
response, the State contends defendant’s expressed lack of understanding of the trial court finding
him guilty through a stipulated bench trial does not equate to concern over his fitness to be
sentenced. The State also refers to the court’s unprompted statements regarding its observations of
defendant being fit during prior hearings as far back as January 2022, his consistently appropriate
behavior in court, his numerous pro se filings with the court, and his educational background, on
which he expounded at his sentencing hearing, as additional indications of his fitness. In his reply
brief, defendant asserts the court found he was unable to understand “ ‘because of his mental or
physical condition,’ ” thereby necessitating a fitness evaluation before sentencing.
¶ 41 This court has summarized:
“The due-process clause of the United States Constitution
(U.S. const., amend. XIV) prohibits the conviction and sentencing
of a person who is incompetent to stand trial. [Citations.] Illinois’
statutory scheme has been held to adequately protect a defendant’s
- 16 - due-process right to be prosecuted only when fit to stand trial.
[Citation.] A defendant is presumed to be fit to stand trial, plead
guilty, and be sentenced. [Citation.] When a bona fide doubt of the
defendant’s fitness exists, the trial court must order a fitness hearing
so that the question of fitness may be resolved before the matter
proceeds any further. A defendant is fit to plead guilty, stand trial,
or be sentenced if he is able to understand the nature and purpose of
the proceedings against him or to assist in his defense.” People v.
Williams, 364 Ill. App. 3d 1017, 1023 (2006).
¶ 42 With regard to whether the requisite bona fide doubt of a defendant’s fitness exists,
this court has explained:
“A bona fide doubt exists when the facts raise a real,
substantial, and legitimate doubt regarding a defendant’s mental
capacity to meaningfully participate in his defense. [Citation.]
Relevant factors that the trial court may consider in assessing
whether a bona fide doubt exists include (1) the defendant’s
behavior and demeanor, (2) prior medical opinions regarding the
defendant’s competence, and (3) defense counsel’s representations
about the defendant’s competence. [Citation.] If the trial court
concludes that no bona fide doubt exists, then it need not conduct a
fitness hearing. [Citation.] Whether a bona fide doubt exists is an
objective and fact-specific inquiry left to the discretion of the trial
court.” People v. Westfall, 2018 IL App (4th) 150997, ¶ 54.
- 17 - “Whether a bona fide doubt exists is a question reviewed for abuse of discretion.” People v. Weeks,
393 Ill. App. 3d 1004, 1009 (2009).
¶ 43 We conclude the trial court did not abuse its discretion by not sua sponte ordering
a fitness evaluation for defendant due solely to his expressed lack of understanding of the court’s
finding of guilt at the stipulated bench trial. First, we disagree with defendant’s contention that the
court found he could not understand the finding of guilt because of his mental or physical
condition. The page of the record defendant cites in support of this proposition reflects the court
merely stating, at the initial sentencing hearing, “The Court will find that the defendant does not
understand. The Court will not allow counsel to withdraw with the Defendant not being able to
understand.” The court did not find defendant was inhibited from understanding because of his
mental or physical condition. Neither, for that matter, did the court so qualify its determination at
the continued sentencing hearing that defendant could not understand. Furthermore, the record of
the stipulated bench trial and the initial and continued sentencing hearings, particularly the
excerpts quoted above, reflects defendant behaved appropriately throughout and did not exhibit
any indications of compromised fitness. It is clear from a review of the record of the initial and
continued sentencing hearings that defendant grounds his professed lack of understanding of the
finding of guilt on his fervent belief in his innocence—nothing more. We agree with the State’s
description: “Under this record, defendant has failed to establish not only an actual inability to
understand the proceedings against him, but more fundamentally, he has failed to establish any
circumstance even raising the appearance of a bona fide doubt as to [his] fitness.” Accordingly,
we conclude the court did not abuse its discretion in not sua sponte ordering a fitness evaluation
before sentencing defendant based merely on his expressed lack of understanding of the previous
finding of guilt, as its failure to do so under these circumstances was not arbitrary, fanciful,
- 18 - unreasonable, or something with which no reasonable person would agree. Hood, 2022 IL App
(4th) 200260, ¶ 86.
¶ 44 D. Ineffective Assistance of Counsel Claim
¶ 45 Finally, defendant argues the trial court erred in rejecting his claim of ineffective
assistance of counsel. Defendant asserts his counsel’s approval of the stipulations despite
defendant’s disagreement with their factual contents and counsel’s failure to speak with witnesses
who purportedly would clear him of any wrongdoing constitutes “a sufficient factual basis to
demonstrate possible neglect of his case.” Defendant contends this case should be remanded for
the appointment of new counsel and a hearing on the claim of ineffective assistance of counsel. In
response, the State contends the court was not required to appoint counsel to investigate
defendant’s “patently meritless claim” given the “comprehensive evidence showing dozens and
dozens of harassing, upsetting communications from defendant which violated an order of
protection.” In his reply brief, defendant asserts counsel did not “conduct a reasonable
investigation into the nature of the evidence that [his] witnesses could offer” and “the absence of
that information is the result of the court not adequately conducting the preliminary Krankel
inquiry.”
¶ 46 Our supreme court established a procedure to be followed by trial courts when
assessing a defendant’s pro se claim of ineffective assistance of counsel in Krankel. Through later
decisions expounding on Krankel, the supreme court emphasized new counsel is not automatically
required every time a defendant raises a pro se claim of ineffective assistance of counsel. People
v. Moore, 207 Ill. 2d 68, 77 (2003). If the court, after examining the factual basis of the claim,
determines it lacks merit or pertains only to matters of trial strategy, the court may deny the motion
without having to first appoint new counsel. Id. at 78. But the court should appoint new counsel
- 19 - for a hearing on the claim if the allegations show possible neglect. Id. As the supreme court has
also noted:
“The 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. [Citation.]
During this evaluation, some interchange between the trial court and
trial counsel regarding the facts and circumstances surrounding the
allegedly ineffective representation is permissible and usually
necessary in assessing what further action, if any, is warranted on a
defendant’s claim. Trial counsel may simply answer questions and
explain the facts and circumstances surrounding the defendant’s
allegations. [Citations.] A brief discussion between the trial court
and the defendant may be sufficient. [Citations.] Also, the trial court
can base its evaluation of the defendant’s pro se allegations of
ineffective assistance on its knowledge of defense counsel’s
performance at trial and the insufficiency of the defendant’s
allegations on their face.” Id. at 78-79.
¶ 47 The supreme court has emphasized the importance of keeping preliminary Krankel
inquiries free from improper involvement by the State:
“[A] preliminary Krankel inquiry should operate as a neutral and
nonadversarial proceeding. Because a defendant is not appointed
new counsel at the preliminary Krankel inquiry, it is critical that the
State’s participation at that proceeding, if any, be de minimis.
- 20 - Certainly, the State should never be permitted to take an adversarial
role against a pro se defendant at the preliminary Krankel inquiry.”
People v. Jolly, 2014 IL 117142, ¶ 38.
¶ 48 “A claim lacks merit if it is conclusory, misleading, or legally immaterial or does
not bring to the trial court’s attention a colorable claim of ineffective assistance of counsel.” People
v. McLaurin, 2012 IL App (1st) 102943, ¶ 40. An assessment of whether a pro se claim of
ineffective assistance of counsel lacks merit entails a “case-by-case, fact-specific examination
driven by the record.” People v. Roddis, 2020 IL 124352, ¶ 64. As for the standard of review:
“Whether the trial court properly conducted a Krankel preliminary
inquiry presents a legal question that we review de novo. [Citations.]
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. [Citations.] Manifest error is error that is
clearly evident, plain, and indisputable.” People v. Jackson, 2020 IL
124112, ¶ 98.
¶ 49 Here, the trial court’s inquiry into defendant’s pro se claim of ineffective assistance
of counsel comported with the Krankel procedure summarized in Moore. The court, through an
exchange with defendant, allowed him to explain how he felt his counsel rendered ineffective
assistance and examined the factual bases for that claim. Moore, 207 Ill. 2d at 77-79. The court
then engaged in an “interchange” with “trial counsel regarding the facts and circumstances
surrounding the allegedly ineffective representation.” Id. at 78. The court also made sure to prevent
the State from being involved in this inquiry. (Before hearing defendant’s counsel’s response to
- 21 - defendant’s claim, the court said, “The State will not participate in this hearing.”) See Jolly, 2014
IL 117142, ¶ 38.
¶ 50 On its merits, the trial court’s decision not to appoint independent counsel for
further proceedings was not manifestly erroneous. The court concluded defendant’s claim of
ineffective assistance of counsel was meritless, conclusory, and pertained to matters of trial
strategy. Moore, 207 Ill. 2d at 78. Given the evidence, underpinning the stipulations, of defendant’s
voluminous, inappropriate, and legally prohibited communications with Shannon, spanning nearly
an entire month, we agree that his pro se claim of ineffective assistance of counsel did not
constitute a colorable claim and was, therefore, meritless. See McLaurin, 2012 IL App (1st)
102943, ¶ 40. Defendant’s claim also was entirely conclusory, as he did not explain what his three
witnesses and/or 300-plus pages of documentation could possibly have offered to exonerate him
of improperly communicating with Shannon during the operation of an order of protection at all,
let alone the dozens of times the stipulations reflect he did so. See People v. Towns, 174 Ill. 2d
453, 467 (1996) (concluding the defendant’s claim his counsel should have investigated potential
witnesses was conclusory when the defendant “offered neither the circuit court nor [the supreme]
court any explanation as to what or to whom he is referring” and did not “set forth the nature of
the exculpatory information his counsel should have discovered”).
¶ 51 Moreover, “decisions concerning whether to call certain witnesses on a defendant’s
behalf are matters of trial strategy, reserved to the discretion of trial counsel.” People v. Enis, 194
Ill. 2d 361, 378 (2000). The Second District has acknowledged “defense counsel can be deemed
ineffective for failure to present exculpatory evidence of which he or she is aware, including the
failure to call witnesses whose testimony would support an otherwise uncorroborated defense.”
People v. Jones, 2012 IL App (2d) 110346, ¶ 82 (citing People v. Bryant, 391 Ill. App. 3d 228,
- 22 - 238 (2009)). However, it has also acknowledged “[a] defendant can overcome the strong
presumption that defense counsel’s choice of strategy was sound if his or her decision appears so
irrational and unreasonable that no reasonably effective defense attorney, facing similar
circumstances, would pursue such a strategy.” Id. Here, while defendant asserts his counsel should
have more adequately pursued three witnesses who could supposedly testify he did not send any
messages or make any calls to Shannon, the stipulations reflect defendant placed 2 voice calls and
37 video calls and sent 76 text messages, 16 images (including one of Shannon and her daughter),
8 audio recordings, and 6 videos of himself to Shannon between October 20 and November 12,
2021, called her 24 times between November 10 and 16, 2021, and sent 79 text messages, including
messages containing pictures of her bedroom, between November 8 and 16, 2021. The stipulations
also reflect these messages were written in a manner similar to how defendant has written,
containing grammar reflective of English not being the writer’s first language, quotations from the
Quran, and references to previous experiences the writer and Shannon shared. Thus, this court
cannot say defendant’s counsel’s decision to not pursue the witnesses any further than he did is
somehow “so irrational and unreasonable that no reasonably effective defense attorney, facing
similar circumstances, would pursue such a strategy.” Id.
¶ 52 In sum, the trial court’s inquiry into defendant’s pro se claim of ineffective
assistance of counsel comported with the Krankel procedure, and its determination that his pro se
claim of ineffective assistance of counsel was meritless, conclusory, and pertained to matters of
trial strategy was not manifestly erroneous, as it was not the product of clearly evident, plain, and
indisputable error. Therefore, this court declines to remand this matter for the appointment of
independent counsel and further Krankel proceedings.
- 23 - ¶ 53 III. CONCLUSION
¶ 54 For the reasons stated, we affirm the trial court’s judgment.
¶ 55 Affirmed.
- 24 -