People v. Downs

2016 IL App (2d) 121156-B

• Court: Appellate Court of Illinois
• Decided: June 30, 2016
• Docket: 2-12-1156
• Status: Unpublished

Opinion

2016 IL App (2d) 121156-B No. 2-12-1156 Opinion filed June 30, 2016 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 07-CF-2986 ) MARK A. DOWNS, ) Honorable ) Timothy Q. Sheldon, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Hutchinson and Spence concurred in the judgment and opinion.

OPINION

¶1 This case returns to us on remand from the supreme court following its reversal of our

decision in the second appeal of defendant, Mark A. Downs. In the first appeal, People v.

Downs, 2012 IL App (2d) 100755-U (Downs I), defendant appealed the trial court’s dismissal,

during the initial stage of a Krankel hearing (see People v. Krankel, 102 Ill. 2d 181 (1984)), of

his posttrial claims of ineffective assistance of counsel. We reversed the dismissal because the

trial court erroneously converted the Krankel preliminary inquiry into an adversarial hearing on

the merits, in which the State actively participated and defendant was required to represent

himself without benefit of counsel. The trial court had indicated that some of defendant’s

allegations raised issues of possible neglect by his trial counsel. We remanded the cause, 2016 IL App (2d) 121156-B

directing the trial court to appoint counsel and to continue the case from that point. Downs I,

2012 IL App (2d) 100755-U, ¶¶ 50-51.

¶2 On remand, the trial court appointed counsel (Krankel counsel) and held a Krankel

hearing. Counsel adopted only a general claim of ineffective assistance of trial counsel and

declined to adopt any of defendant’s specific allegations. The trial court again dismissed

defendant’s allegations, and defendant again appealed.

¶3 In this second appeal, defendant contended that Krankel counsel was ineffective in

conducting the second Krankel hearing. Defendant also, for the first time in the case, challenged

the trial court’s definition of proof beyond a reasonable doubt in response to the jury’s question

to the court: “What is your definition of reasonable doubt, 80%, 70%, 60%?” We addressed the

reasonable-doubt issue and laid the Krankel issue to the side. People v. Downs, 2014 IL App

(2d) 121156, ¶ 15 (Downs II). In Downs II, we held that the trial court erred in responding to the

jury’s question and that there was a reasonable likelihood that defendant had been convicted on

proof less than beyond a reasonable doubt. Id. ¶ 31. The State appealed, and our supreme court

reversed, holding that the trial court appropriately responded to the jury’s question and

reiterating that a court should refrain from attempting to define reasonable doubt. People v.

Downs, 2015 IL 117934, ¶¶ 24, 32 (Downs III). The supreme court then remanded the cause to

this court to allow us to consider the Krankel issue. Id. ¶ 34.

¶4 Accordingly, before us now, defendant appeals the conduct of the second Krankel

hearing. Defendant argues that Krankel counsel was ineffective because he abdicated his role to

represent defendant when he abandoned defendant’s specific claims of ineffective assistance of

trial counsel. We reverse and remand the cause.

¶5 I. BACKGROUND

¶6 In Downs I, we provided a full account of the events underlying the case. In Downs II,

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we summarized those events. In light of both of these factual summaries, we need not reprise the

substantive facts of the offense; instead, we will provide an outline of the evidence as necessary

and focus on the procedures now at issue.

¶7 In April 2009, defendant was convicted of the first-degree murder (720 ILCS 5/9-1(a)(1)

(West 1996)) of six-year-old Nico Contreras. Early in the morning of November 10, 1996, Nico

was shot while he slept. The intended target was Robert Saltijeral, Nico’s uncle, who was a

member of the Latin Home Boys gang. The shooter was Ruben Davila, accompanied by

defendant and Elias Diaz, who were members of the Almighty Ambrose gang. A week before

Nico’s death, Davila’s car had been shot up by Latin Home Boys gang members; Davila and

defendant were tasked by the Ambrose gang to shoot Saltijeral to pay back the Latin Home Boys

for shooting at Davila. Davila balked and, according to Davila’s testimony, defendant shot at the

house, ultimately killing Nico.

¶8 Davila and Alejandro Solis testified at defendant’s trial. Davila received an incredibly

lenient plea deal to testify against defendant. Davila admitted to the murder of Jose Yepiz,

which occurred a few weeks after Nico’s murder, along with a number of other shootings.

Davila was charged only with aggravated discharge of a firearm in the Yepiz murder and

received a recommendation to be placed in a boot camp program or, if he failed to satisfactorily

complete the program, to receive an eight-year sentence. Additionally, Davila received nearly

$39,000, paid to him or paid on his behalf for expenses and to support his family in Mexico.

¶9 Solis denied that he received a quid pro quo deal in exchange for his testimony; rather he

testified that he cooperated because he believed that it was the right thing to do and it cleared his

conscience. Nevertheless, even in the absence of an explicit deal, a 2½-year term of

imprisonment was vacated and Solis was resentenced to a 30-month term of probation instead.

In addition, Solis received $5,000 to pay a child support arrearage and allow his release from

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incarceration, and he was paid $3,200 for working as an informant, some of which was paid for

information relating to Nico’s murder.

¶ 10 Based on Davila’s and Solis’s descriptions of Nico’s murder, defendant was convicted of

the murder. 1 Following the verdict, but before the sentencing, defendant filed two pro se

motions alleging that his trial counsel had provided ineffective assistance. Defendant’s second

motion incorporated all of the allegations from the first motion and added more allegations.

Defendant’s second motion was 60 pages in length and contained 34 allegations. On July 31,

2009, and pursuant to Krankel, the trial court appointed Krankel counsel, but it had not yet held a

preliminary inquiry into the factual bases of defendant’s allegations. On October 27, 2009,

Krankel counsel filed a second amended motion on defendant’s behalf, adopting five of

defendant’s pro se allegations. On November 25, 2009, defendant filed a third pro se motion,

alleging 13 additional claims of ineffective assistance.

¶ 11 Among the five claims that Krankel counsel adopted were two claims pertinent here: (1)

trial counsel ignored or refused defendant’s request to choose a bench trial; and (2) trial counsel

failed to sufficiently investigate and present defendant’s alibi defense. At a hearing on Krankel

counsel’s motion, the trial court, on its own initiative and purportedly based on a recent Rule 23

order in another case, reconsidered the procedure it was going to follow. The trial court believed

that, in conducting the preliminary inquiry into the factual bases of defendant’s allegations, it

1 During the jury’s deliberations, it first requested the transcripts of four witnesses’

testimony; it later asked the trial court how it defined reasonable doubt: “80%[,] 70%[, or]

60%?” The trial court responded to the reasonable-doubt question, but none of the transcripts

had been provided before the jury reached its verdict. Downs III resolved the issue arising from

the reasonable-doubt question, and we note these circumstances for completeness.

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was required to first allow the defendant to discuss his allegations, without legal representation.

The trial court thus rescinded Krankel counsel’s appointment and ordered defendant to present

his pro se allegations. In the procedure that followed, defendant would first read and elaborate

on an allegation, trial counsel was invited to comment and argue against defendant’s allegation,

the State was invited to offer its argument in support of trial counsel and against defendant’s

allegation, and defendant was given an opportunity to have the last word in support of his

allegation. In this fashion, the trial court thus converted the preliminary inquiry into an

adversarial hearing on the merits of each allegation, during which defendant was not allowed to

have legal representation.

¶ 12 Regarding the bench-trial allegation, defendant averred that, on the first and second days

of the jury trial, defendant informed trial counsel that he wanted to dismiss the jury and proceed

with a bench trial for the balance of the proceedings. Defendant alleged that trial counsel

completely ignored him, and the jury trial proceeded to completion notwithstanding defendant’s

expressed wishes. The trial court sought trial counsel’s commentary on the allegation. Trial

counsel explained that he acknowledged defendant’s requests to convert the jury trial into a

bench trial and then proceeded to talk defendant out of his desire on each day. Trial counsel

noted that Diaz had been convicted by the same trial court at a bench trial and that defendant’s

jury trial involved essentially the same evidence that had been presented during Diaz’s bench

trial. Trial counsel believed that it was extremely likely that, based on the same evidence, the

trial court would return a guilty finding if the proceedings were converted into a bench trial.

Trial counsel explained this to defendant and defendant seemed to acquiesce to this reasoning.

Trial counsel noted that he believed that, had he not tried to talk defendant out of converting the

proceedings into a bench trial, he would have been ineffective. Trial counsel also explained that

defendant was never “insistent” about converting the proceedings into a bench trial; for his part,

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defendant stated that he was “almost 100 percent certain” that he wanted a bench trial. The trial

court specifically dismissed this allegation, holding:

“defendant has argued that it should have been a bench trial; and his attorney countered

by saying the Court tried Elias Diaz at bench trial and found Elias Diaz guilty on a bench

trial. Defense trial strategy was sound in that this Court had already heard that evidence

regarding Elias Diaz and found the evidence credible and believable and relevant and

found Elias Diaz guilty.

It would have been bad trial strategy to go and retry [defendant] in front of this

Court in that this Court had already found Elias Diaz guilty. That is trial strategy. The

Court agrees with that as sound trial strategy.”

¶ 13 Regarding the alibi allegations, defendant claimed that he was at work at the time of the

murder. According to defendant, his sister (Patricia Serrano) and his brother (Chris Downs)

were willing to testify in support of defendant’s alibi. Patricia had averred that both defendant

and Chris were living with her on the date of the murder. She recalled driving them to work at

Borg-Warner in West Chicago during the holiday season, where both brothers were working in

temporary seasonal positions. She further averred that the brothers’ shifts began at 6 p.m. and

ended at 6 a.m. and that their usual workdays coincided with the date of the murder. In addition,

she particularly remembered the date of the murder, because on November 11, the day following

the murder, she and her brothers traveled to Iowa and spent the ensuing week there. She also

averred that trial counsel did not investigate her alibi information. Trial counsel explained that

he contacted Borg-Warner looking for employment records from the time around the date of the

murder. Trial counsel explained that he spoke to two different lawyers at Borg-Warner, which

he believed to be a benefit, because the two different people would approach the issue differently

and possibly turn up the information he was seeking. However, trial counsel consistently learned

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that records for defendant were not available, because the company simply did not keep records

for temporary employees for such a length of time. Trial counsel also stated that no alibi had

been developed contemporaneously with the offense and he believed that, as a matter of strategy,

an alibi developed 10 years later would appear to be fabricated and harm defendant’s case. The

State chimed in, noting that, during the initial murder investigation, defendant was questioned

and did not raise a work alibi; instead, defendant admitted that he was with Davila at the time

around the offense. The trial court ruled that it was a matter of trial strategy, “and going forward

on a different type of defense, an alibi, would have been damaging” to defendant’s defense.

¶ 14 Defendant also specifically challenged trial counsel’s failure to call Chris in support of

his alibi defense. Trial counsel commented that Chris had provided a number of different

versions of his proposed trial testimony. As a result of the inconsistencies, trial counsel believed

that Chris would not be a credible witness. Additionally, trial counsel noted that Chris had never

provided any information related to defendant’s work alibi. The State added that Chris’s

testimony at the Diaz trial locked him into a version that did not include defendant’s purported

work alibi and would have controverted the statements in Patricia’s affidavit. The trial court

held that the failure to call Chris to testify was a matter of trial strategy, due to the multiple

versions of his proposed testimony he provided to trial counsel.

¶ 15 Defendant specifically challenged trial counsel’s investigation of the evidence Patricia

would have provided, as well as his decision not to call her as a witness during the trial. Trial

counsel indicated that he had repeated discussions with Patricia, but he believed that, because in

2007 she could not provide objective evidence that she and defendant visited Iowa beginning

November 11, 1996, her testimony would not have been sufficient to solidly establish

defendant’s alibi. The State agreed with trial counsel’s assessment. The trial court held that

Patricia would have been an uncertain witness and that the decision whether to call her was a

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matter of trial strategy.

¶ 16 Additionally, we note that Krankel counsel did not adopt defendant’s allegation about

Juan “Baby” Acevedo. Defendant alleged that Evangelina Hernandez told police that “Baby”

had told her that “Too Tall” (Davila) had been the only person that Baby observed running from

the scene of the shooting. Defendant stated that he provided trial counsel with Acevedo’s

identity and nickname but that trial counsel did not investigate or subpoena Acevedo for trial

testimony. Trial counsel explained that Hernandez’s information was only hearsay and that

Hernandez could not provide him with Baby’s identity; additionally, she appeared to disavow her

statement to police about him. Trial counsel did not address defendant’s allegation about giving

him Baby’s identity. The State noted that a police report characterized Hernandez’s statement as

a rumor she had heard; further, the State indicated that Hernandez was unable to identify Baby as

Acevedo. The trial court held that the information about Acevedo “was only rumors. There was

no substantial testimony that could be elicited. Ms. Hernandez did not remember any person by

the name of ‘Baby’, and that was a dead end; and it was not ineffective assistance of counsel not

to go any further on that.”

¶ 17 Following this newly adopted procedure, the trial court individually addressed each of

defendant’s claims, determining that there was no basis to believe that trial counsel had provided

ineffective assistance. The trial court then ruled that there was no basis to continue the Krankel

inquiry and to appoint counsel to represent defendant on any of his claims. Effectively, the trial

court dismissed defendant’s claims.

¶ 18 Defendant appealed, and we determined that the trial court improperly allowed the State

to actively participate in arguing against defendant’s allegations of ineffective assistance, thereby

effectively converting what should have been the preliminary Krankel inquiry into an adversarial

hearing on the merits of defendant’s allegations. See generally Downs I, 2012 IL App (2d)

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100755-U. Because we concluded that the trial court’s conduct of the preliminary Krankel

inquiry was flawed, we remanded the cause and directed the trial court to appoint counsel to

represent defendant on his allegations. Id. ¶ 51. We did not consider the merits of defendant’s

allegations; instead we instructed the court to proceed from the point at which Krankel counsel

was appointed and to allow counsel to conduct his or her own investigation of defendant’s

allegations. Id. ¶ 52.

¶ 19 On remand, the trial court appointed the same Krankel counsel that it had before. On

October 3, 2012, Krankel counsel filed a third amended motion, this time declining to adopt four

of the five claims he had previously adopted. The third amended motion raised only a general

charge of ineffective assistance, and this claim did not allege any specific acts by trial counsel

that constituted neglect or deficient representation. Likewise, the claim did not allege any

specific prejudice accruing to defendant. Krankel counsel noted that he was “disposed to decline

to adopt” defendant’s pro se allegations. He explained that he nevertheless advanced the single

and general claim because “the best judgment of trial counsel’s overall performance lies with the

[trial court] which had the ability to observe counsel throughout the trial.”

¶ 20 Krankel counsel averred that he had reviewed the transcripts of the initial preliminary

inquiry in deciding to decline to adopt defendant’s pro se claims and to forgo raising any other

substantive and specific claims on defendant’s behalf. Krankel counsel explained in the motion:

“[T]he information provided by all participants during the hearings became an invaluable

resource for this counsel’s investigation in preparing the instant motion. Although not

sworn, the statements made were offered in open court and thus Krankel counsel found

them to be reliable with respect to determinations made in the context of this motion.”

Counsel further explained that he modeled his investigation into defendant’s claims on the

procedure employed for postconviction proceedings. Counsel averred that, consistently with

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Illinois Supreme Court Rule 651(c) (eff. Apr. 26, 2012), he “consulted sufficiently with

Defendant to ascertain his allegations of ineffectiveness,” he reviewed defendant’s pro se

pleadings and the trial transcripts, and he reviewed the transcripts from the initial preliminary

inquiry.

¶ 21 Defendant contradicted Krankel counsel’s representations. Defendant informed the trial

court that counsel had not spoken with him about any substantive issues before filing the third

amended motion. Counsel explained to the court that, when he wrote that he “consulted

sufficiently with Defendant to ascertain his allegations of ineffectiveness,” he meant that he

reviewed the transcripts of the initial preliminary inquiry and that he particularly relied on

defendant’s pro se presentations of his claims. Counsel stated that, based on the interchanges

between defendant and trial counsel, he decided not to adopt defendant’s specific claims of

ineffective assistance.

¶ 22 The trial court then had the parties argue the third amended motion. The trial court held

that the motion did not support a claim of ineffective assistance, because it did not allege either

specific acts of deficient performance or specific examples of prejudice. The motion was denied.

¶ 23 Defendant appealed, and we decided the appeal solely on the jury-question issue. Downs

II, 2014 IL App (2d) 121156, ¶ 42. Our supreme court reversed our decision on the jury-

question issue and remanded the cause to this court, ordering us to consider defendant’s Krankel

issue. Downs III, 2015 IL 117934, ¶ 34. In accord with our supreme court’s direction, we now

consider defendant’s contentions regarding the second Krankel hearing.

¶ 24 II. ANALYSIS

¶ 25 In this appeal, we consider defendant’s claim that Krankel counsel provided ineffective

assistance. Defendant argues that counsel effectively abdicated his role when he declined to

adopt any of defendant’s specific allegations of ineffective assistance of trial counsel and,

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instead, raised only a general claim that alleged no specific acts of deficient representation and

no specific examples of prejudice. Defendant argues that Krankel counsel’s performance fell

below an objective standard of reasonableness by failing to consult with defendant about his

claims and to investigate possible witnesses to support his claims. Defendant argues that he was

prejudiced by Krankel counsel’s deficient performance, because he was deprived of a

meaningful adversarial hearing on his potentially meritorious claims. We consider defendant’s

arguments in turn.

¶ 26 A. Standard of Review

¶ 27 As an initial matter, we consider our standard of review. A claim of ineffective

assistance is reviewed under the familiar standard enunciated in Strickland v. Washington, 466

U.S. 668 (1984). Under this standard, a defendant must show both that his counsel’s

performance fell below an objective standard of reasonableness and that prejudice resulted from

counsel’s deficient performance. People v. Ramsey, 239 Ill. 2d 342, 433 (2010). Prejudice is

demonstrated by showing a reasonable probability that, but for counsel’s errors, the result of the

proceeding would have been different. People v. Williams, 2016 IL App (3d) 130901, ¶ 24. We

review de novo whether counsel rendered ineffective assistance. Id.

¶ 28 The Strickland ineffectiveness standard also applies to appellate counsel. People v.

Moore, 402 Ill. App. 3d 143, 146 (2010). In raising a claim of ineffectiveness of appellate

counsel, the defendant must show both that appellate counsel’s failure to raise an issue on direct

appeal was objectively unreasonable and that the defendant was prejudiced by that failure. Id. at

146-47. Prejudice is demonstrated by showing that the underlying issue had merit. Id. at 147.

¶ 29 We believe that the analysis of a claim of appellate counsel’s ineffectiveness provides a

useful analogy to the analysis of a claim of Krankel counsel’s ineffectiveness in the evidentiary

hearing following a successful preliminary Krankel inquiry. As it has developed, the Krankel

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inquiry proceeds in two steps. In the first step, the trial court examines the factual bases of the

defendant’s pro se claims of ineffective assistance of trial counsel. People v. Moore, 207 Ill. 2d

68, 78 (2003). If, in this preliminary inquiry, the trial court determines that the claims lack merit

or pertain only to matters of trial strategy, then it need not appoint new counsel and may deny the

defendant’s pro se motion. Id. If, however, the defendant’s pro se claims show possible neglect

on trial counsel’s part, the trial court will appoint new counsel. Id. Following the appointment

of new counsel (i.e., Krankel counsel), the matter proceeds to the second step of the Krankel

inquiry. Id. The second step consists of an adversarial and evidentiary hearing on the

defendant’s claims of ineffective assistance, at which the defendant is represented by the Krankel

counsel. People v. Flemming, 2015 IL App (1st) 111925-B, ¶ 82.

¶ 30 Much like appellate counsel, Krankel counsel is required to present the defendant’s

meritorious claims at the second-step hearing. Thus, it makes sense to view the obligations of

appellate counsel and Krankel counsel in a similar manner. Accordingly, we hold that, to make

out a claim of ineffective assistance of Krankel counsel, the defendant must show both that

Krankel counsel’s failure to prosecute an ineffective-assistance claim during the second-step

hearing was objectively unreasonable and that the defendant was prejudiced by that failure. See

Moore, 402 Ill. App. 3d at 146-47. To show prejudice in this context, the defendant must

demonstrate that the underlying claim had merit. See id. at 147. With these principles in mind,

we turn to defendant’s contentions.

¶ 31 B. Deprivation of Process

¶ 32 Defendant argues that Krankel counsel was ineffective because he simply failed to

present any specific claims of ineffective assistance of trial counsel, thereby effectively

depriving him of the Krankel procedure on remand. Defendant argues that Krankel counsel’s

failure to present any specific ineffectiveness claims deprived him of the opportunity to subject

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those claims to meaningful adversarial testing. The State counters with the fact that Krankel

counsel drafted an extensive memorandum analyzing each of defendant’s pro se claims of

ineffectiveness. According to the State, Krankel counsel’s preparation of the memorandum and

his appearance before the court to argue the one, nonspecific point he actually adopted was all he

could ethically accomplish and was sufficient to afford defendant’s claims with the meaningful

adversarial testing of a hearing.

¶ 33 The phrase, “meaningful adversarial testing,” is a term of art with a specific meaning in

cases involving allegations of ineffective assistance of counsel. If counsel fails to subject the

State’s case to meaningful adversarial testing, then the burden of showing prejudice under the

Strickland test is relaxed because prejudice will be presumed. People v. Rogers, 2015 IL App

(2d) 130412, ¶ 69. We understand defendant to be arguing that Krankel counsel did not allow

defendant’s claims to be subjected to meaningful adversarial testing, thereby avoiding

Strickland’s requirement that he demonstrate prejudice, because prejudice will be presumed. Id.

¶ 34 In his initial appointment, Krankel counsel adopted five of defendant’s pro se claims of

ineffective assistance, including the general claim, the bench-trial claim, and the alibi claim.

Krankel counsel was present at least at the first day of the initial preliminary inquiry, when the

trial court rescinded his appointment. At the end of that proceeding, the trial court held that the

alibi claim and the bench-trial claim both raised matters of strategy and it dismissed both claims,

along with the general claim.

¶ 35 In Downs I, when we deemed this hearing to be improper and remanded the cause, we

instructed the trial court to appoint Krankel counsel and allow Krankel counsel to proceed on the

five claims that Krankel counsel had already adopted as well as any new claims his investigation

might reveal to be indicative of possible neglect. Upon remand, the trial court reappointed the

same attorney, and Krankel counsel filed a third amended motion alleging ineffective assistance

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of trial counsel. In the motion, Krankel counsel stated that he modeled his investigation on the

postconviction-petition procedure. To that end, Krankel counsel purported to include a

certification, pursuant to Illinois Supreme Court Rule 651(c) (eff. Apr. 26, 2012), that he had: “1)

consulted sufficiently with Defendant to ascertain his allegations of ineffectiveness, 2) ***

reviewed and considered Defendant’s written filings, 3) *** examined the trial transcript, and 4)

reviewed the transcripts of the hearings held on October 28, 2009, November 25, 2009, and

December 28, 2009.” Counsel further represented:

“[T]he information provided by all participants during the hearings became an invaluable

resource for this counsel’s investigation in preparing the instant motion. Although not

sworn, the statements made were offered in open court and thus Krankel counsel found

them to be reliable with respect to the determinations made in the context of this motion.”

Finally, Krankel counsel abandoned all of defendant’s pro se allegations except the general

allegation.

¶ 36 When the third amended motion advanced to a second-step hearing, defendant informed

the trial court that Krankel counsel had not spoken with him in preparing the motion. Defendant

also stated that counsel had not interviewed any of the witnesses supporting defendant’s alibi

claim. Defendant represented that he was surprised that counsel had abandoned the substantive

claims from the second amended motion.

¶ 37 Krankel counsel responded:

“[W]hen I make that statement [in the third amended motion] that I have consulted with

[defendant] sufficiently, that means that I have reviewed all of the allegations; and I have

done it twice now. I did it once in 2009 [for the initial preliminary inquiry].

To be honest and fair about this case, I went back through all of the allegations

that he raised, both the original filing and the supplementary filing, which you approved

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sometime later on just before we went into that first hearing, and you rescinded my

appointment the first time.

***

As an officer of the court, I have an obligation not to bring forth allegations that

don’t make sense, that don’t make sense and don’t meet standards. Especially in this

case we are talking about Strickland standards, the first prong of Strickland, and it’s well

settled that a difference between a client and his trial attorney over tactics and strategies

is not sufficient to bring that forward as an allegation of ineffective assistance.

I adopted the procedure. Although it’s not required by any Krankel progeny or

Krankel itself, I adopted the procedure that we normally look at a postconviction hearing,

that sort of process. It doesn’t specify how much contact I have to have with a client.

With the amount of material, as [t]he Court well knows and I know the State well

knows, that he presented to begin with, all the writings, and in addition *** I had the full

transcript of all three of the hearings in October, November, and December of 2009, and

to me that was an incredibly specific and detailed investigative tool, and there is nothing

in those transcripts, especially on the four [pro se allegations] that I declined to proceed

with this time that I had not adopted the first time.

There is nothing that I found in those transcripts during that hearing—these were

open court statements. He had a chance to respond. So I considered his responses, as

well as the responses of trial counsel. None of those were determinative in terms of what

I presented here in this third amended motion. I felt like I have examined all of these

allegations, and what I am bringing forward I believe is the proper way to proceed.

[Defendant] in our conversations has some issues that may have some substantive

weight, but those are considerations for an appeal, not for a Krankel hearing, not for an

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ongoing motion to determine whether or not the trial counsel was ineffective or not,

because all of these relate almost entirely to disagreements between him and trial counsel,

and I believe that with the transcripts of those hearings that I have enough information to

present to [the] court the motion as it is right now.”

¶ 38 Defendant’s central point on appeal is that Krankel counsel abdicated his responsibility

and did not act as counsel on remand. Krankel counsel’s decisions not to meet with defendant

and not to present specific claims are difficult to review: first, because there is no definitive

procedure regarding the conduct of a second-step Krankel hearing, and second, because we

already know how the trial court was inclined to view defendant’s specific allegations, based on

its rulings in the initial preliminary inquiry. However, at a minimum, Krankel counsel was

required to consult with defendant, even under his own investigation procedure, which he

modeled after an appointed attorney’s obligations in postconviction proceedings. Krankel

counsel appears to have conceded that he did not consult with defendant; instead, he looked at

defendant’s pro se motions and the transcripts of the initial preliminary inquiry. In so doing,

Krankel counsel would inevitably determine that all of defendant’s claims were going to fail,

because they had already been presented once to the trial court, which rejected them. Thus,

Krankel counsel determined that all of defendant’s claims were frivolous and unworthy of being

presented to the trial court at a second-step Krankel hearing.

¶ 39 However, there is a difference between a frivolous claim and a claim that is nonfrivolous

yet likely to be unsuccessful. Again, borrowing from the terminology surrounding

postconviction petitions, a frivolous claim is one with no arguable basis in law or in fact. People

v. Hodges, 234 Ill. 2d 1, 16 (2009). The nonfrivolous claim will have at least an arguable basis

in law or in fact, although it might turn out to be unsuccessful. People v. Teran, 376 Ill. App. 3d

1, 2 (2007). Nevertheless, we believe that such a claim must be presented to the trial court

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despite counsel’s misgivings about the possibility of success. Here, we believe that Krankel

counsel conflated the two types of claims in his decision not to present any specific claims.

¶ 40 Krankel counsel undoubtedly devoted time in reviewing the transcripts and motions, and

in drafting defendant’s third amended motion. We do not believe, however, that devoting time to

a matter alone can avoid the claim that defendant makes here, namely, that counsel’s

performance was so deficient as to amount to virtually no representation.

¶ 41 Defendant argues that Krankel counsel unreasonably failed to present his alibi claim

based on Patricia’s affidavit. In this claim, defendant alleged that trial counsel did not

investigate the existence of the alibi that he was at work at his seasonal employment, as was his

wont at that time, during the overnight hours of November 9 and 10, 1996. In the initial

preliminary inquiry, trial counsel stated that he had talked with Patricia but that she had nothing

concrete, beyond her testimony, to prove up the alibi. Trial counsel also inquired with Borg-

Warner but was informed that defendant’s employment records were no longer available.

Krankel counsel thus concluded that defendant’s claim could not succeed at the second-step

hearing, and he chose not to raise it.

¶ 42 The problem here is that Patricia averred that trial counsel had not investigated her alibi

information around the time of trial. While the decision to call a witness or to present an alibi

defense is a matter of strategy that is generally immune from review, counsel must first

investigate the claim. People v. Brown, 336 Ill. App. 3d 711, 718 (2002); see also Bryant v.

Scott, 28 F.3d 1411, 1415 (5th Cir. 1994) (an attorney is required to perform a reasonable

amount of investigation; “when alibi witnesses are involved, it is unreasonable for counsel not to

try to contact the witnesses” to determine whether their testimony would be helpful to the

defense). Thus, defendant raised the clearly potentially meritorious claim that trial counsel had

failed to adequately investigate defendant’s alibi that he was at work. Krankel counsel admitted

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that he did not consult with defendant, and we further infer that he did not contact Patricia to

ascertain whether she had anything that could confirm the alibi, because he indicated that he

relied only on transcripts and the court file in preparing the third amended motion. We recognize

that trial counsel extensively discussed his investigation at the initial preliminary inquiry.

Nevertheless, defendant had presented a nonfrivolous claim, albeit one that might not succeed.

In our view, it was incumbent upon Krankel counsel to present the nonfrivolous claim with

whatever support he could muster at the second-step Krankel hearing. We believe that Krankel

counsel’s failure to specifically present the claim fell below a reasonable level of representation.

¶ 43 The State argues that defendant cannot show prejudice, because Patricia was unable to

provide verifiable information, beyond her own testimony, regarding defendant’s alibi. The

State reasons that, in the absence of prejudice, defendant cannot succeed on his claim that trial

counsel was ineffective. Similarly, because the underlying claim against trial counsel cannot

succeed, Krankel counsel cannot be deemed ineffective for not pursuing a forlorn hope. We

disagree.

¶ 44 As we have noted, Krankel counsel was obligated to present any nonfrivolous claims of

ineffective assistance of trial counsel that his investigation revealed. Patricia averred that trial

counsel did not investigate her claim that she drove defendant to work before the offense and

picked him up from work the next morning, after the offense. Further, more than 10 years had

passed between the date of the offense and the levying of charges against defendant. This lapse

of time provides a reasonable explanation for trial counsel’s inability to corroborate the alibi

through employment records, and this undercuts Krankel counsel’s acceptance of trial counsel’s

claim of strategy on the alibi issue. Thus, Krankel counsel would not have violated an ethical

obligation not to present frivolous claims had he advanced the claim. The fact that the claim

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might not have succeeded does not render it frivolous. See Hodges, 234 Ill. 2d at 16 (a frivolous

claim has no arguable basis in fact or law).

¶ 45 In addition, and perhaps more importantly, we view defendant’s central claim in this

appeal to be that Krankel counsel, by not advancing his nonfrivolous allegations of ineffective

assistance of trial counsel, was not acting as counsel and provided him with virtually no

representation at all. In such a situation, as we noted above, prejudice will be presumed. Rogers,

2015 IL App (2d) 130412, ¶ 69. The State’s contention, that defendant cannot show prejudice,

then, is premature. The question at this point is whether Krankel counsel performed as counsel

and provided defendant with representation as contemplated under our constitutions. If the

answer is affirmative, then we can turn the inquiry to whether defendant can demonstrate

prejudice.

¶ 46 In this case, the decision not to present a nonfrivolous claim cannot be squared with

Krankel counsel’s obligations to defendant. Before we can definitively answer the question

posed above, however, we must consider the rest of the record in light of defendant’s contention.

¶ 47 Defendant also contends that Krankel counsel unreasonably failed to raise his bench-trial

allegation in the remanded second-step Krankel hearing. The State argues that, after the jury

trial commenced, defendant no longer had the right to waive the jury and proceed with a bench

trial; rather, the decision was within the trial court’s discretion. People v. Zemblidge, 104 Ill.

App. 3d 654, 657 (1982). The State thus argues that, after the jury trial commenced, whether to

pursue defendant’s wish to waive the jury became a matter of trial strategy, which is generally

unreviewable.

¶ 48 We cannot say that defendant’s bench-trial allegation constituted a nonfrivolous claim.

Even accepting that defendant, for the sake of argument, had an unfettered right to inform the

trial court that he wished to waive the jury, there is no question that he did not so inform the trial

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court. When counsel refuses or fails to do so, the defendant is obliged to make his wish to waive

the jury known to the trial court. People v. Powell, 281 Ill. App. 3d 68, 73 (1996). Defendant

did not do so, and thus he would be unable to demonstrate prejudice from trial counsel’s refusal

to ask for a jury waiver. Because he cannot show that trial counsel was ineffective on this

allegation, he likewise cannot show that Krankel counsel was ineffective for failing to adopt it.

Moreover, this allegation does not circumvent the necessity of showing prejudice, because there

is no issue of failing to investigate.

¶ 49 This does not end our inquiry into defendant’s claim that Krankel counsel abdicated his

obligations upon remand. In defendant’s pro se motions, defendant alleged that “Baby” told

Hernandez that he had seen only one person, Davila, fleeing from the scene of the shooting.

Hernandez mentioned the statement to police, but was unable or unwilling to give Baby’s name

to the police. Defendant averred that he informed trial counsel that Baby was Acevedo and that

Acevedo continued to live in the area since the shooting. Trial counsel stated that Hernandez

could not recall the statement at the time of trial and could not recall Baby’s identity. Further,

the police reports provided a dead end. Trial counsel did not comment on whether defendant

provided him with Baby’s identity. At the initial preliminary inquiry, the trial court dismissed

the claim as only a rumor that was a dead end.

¶ 50 In the third amended motion, Krankel counsel declined to adopt the allegation, because

the decision not to call a particular witness was a matter of trial strategy. Krankel counsel further

reasoned that defendant had failed to overcome his burden of demonstrating why it was not a

sound strategic decision and had failed to show either deficient representation or prejudice.

¶ 51 The essence of defendant’s allegation was that trial counsel failed to investigate

Acevedo’s purported statement. According to defendant, he made trial counsel aware of

Hernandez’s statement. Defendant also provided trial counsel with Baby’s identity. According

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to trial counsel, he never investigated Acevedo and he was stymied by Hernandez’s failure or

reluctance to identify Baby so he could follow up the statement. However, defendant’s claim

directly contradicts trial counsel’s statements and clearly indicates that trial counsel did not

investigate a potentially exculpatory witness. Moreover, Acevedo’s purported statement

contradicts Davila’s version of events and supports defendant’s.

¶ 52 Krankel counsel’s decision not to adopt the allegation about Acevedo’s purported

statement was deficient representation. The allegation on its face indicated that trial counsel had

not adequately investigated Acevedo and his purported statement. Trial counsel had Acevedo’s

identity, and the import of his statement was manifest. Accordingly, the failure to present the

allegation is clearly indicative of potential neglect.

¶ 53 Defendant did not raise this contention in briefing this appeal. Generally, the failure to

raise a claim on appeal constitutes forfeiture. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013).

Forfeiture is, however, a limitation on the parties and not the court. People v. Carter, 208 Ill. 2d

309, 322 (2003). We may address procedurally defaulted issues in order to achieve a just result

and maintain a uniform body of precedent. People v. Daniels, 307 Ill. App. 3d 917, 926 (1999).

¶ 54 Here, defendant’s contention on appeal is that Krankel counsel abdicated his obligation to

represent defendant in presenting his claims of ineffective assistance of trial counsel and that he

acquiesced in the trial court’s judgment of the claims during the initial preliminary inquiry. We

believe that Krankel counsel’s failure to raise the claim regarding Acevedo’s purported statement

demonstrates that abdication. When we read the same transcript as Krankel counsel, defendant’s

claim that he informed trial counsel of Baby’s identity and the general area in which he resided

fairly leaps out. Yet Krankel counsel ignored this claim. Significantly, trial counsel did not

dispute defendant’s averment that defendant told him of Baby’s identity; instead, trial counsel

claimed that Acevedo’s purported statement was an unverifiable rumor, and counsel did no

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further investigation once Hernandez did not pan out as a source of the statement. Krankel

counsel apparently uncritically chalked up defendant’s pro se allegation to nothing more than a

disagreement between client and counsel about strategy, despite the clear allegation that trial

counsel failed to adequately investigate the purported statement, and despite the statement’s clear

support of defendant’s claim that he was not present at the shooting.

¶ 55 Weighing defendant’s arguments, we again note that defendant’s central claim in this

appeal is that Krankel counsel abdicated his responsibility to present defendant’s claims of

ineffective assistance. On defendant’s side of the ledger, we believe that defendant’s alibi claim

was nonfrivolous and should have been presented at the second-step Krankel hearing, for the

trial court to adjudicate the merits. Likewise, Krankel counsel should have adopted the

obviously nonfrivolous claim arising out of Acevedo’s purported statement.

¶ 56 On the other hand, Krankel counsel prepared a third amended motion that purported to

consider each of defendant’s pro se claims in light of the record from the initial preliminary

inquiry. Krankel counsel attached numerous exhibits, but the exhibits were either those already

provided by defendant in his pro se motions or were copies of the transcripts of the initial

preliminary inquiry. Examining the third amended motion’s treatment of each of defendant’s

pro se allegations, we see that Krankel counsel echoes the arguments made, as well as the

conclusions drawn by the trial court, in the initial preliminary inquiry. Although Krankel

counsel attempted to comply with this court’s mandate, we cannot say that his performance

constituted “representation” as contemplated by our constitutions. The omission of the alibi

claim represents the failure to present a nonfrivolous claim at the second-step Krankel hearing.

Counsel’s treatment of the alibi claim shows that he believed that the claim would be

unsuccessful. Counsel apparently conflated the ultimate viability of the claim with whether it

was frivolous. In our view, counsel was obligated to present any nonfrivolous claims to the trial

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court. Likewise, we believe that counsel’s failure to recognize the nonfrivolous nature of the

claim regarding Acevedo’s statement cannot be excused. The issue for counsel was not ultimate

viability, but process. At the second-step Krankel hearing, defendant was entitled to a full and

fair hearing on any nonfrivolous claims. In light of the failures identified above, we cannot say

that defendant received the process to which he was entitled. Moreover, in light of the failures

identified above, we do not believe that, despite counsel’s best intentions, he was acting as an

adversarial advocate for defendant. We must conclude, reluctantly, that counsel did abdicate his

role at the second-step Krankel hearing, when he abandoned defendant’s specific nonfrivolous

claims of ineffective assistance of trial counsel. This abandonment means that prejudice will be

presumed. Rogers, 2015 IL App (2d) 130412, ¶ 69. Accordingly, we hold that defendant has

made a sufficient showing under Strickland that Krankel counsel provided ineffective assistance.

We therefore reverse the judgment of the trial court and remand the cause.

¶ 57 The State argues that Krankel counsel was obligated to make an independent

investigation and was required to present only those claims that he believed passed that

investigation’s muster. We agree. In Moore, 207 Ill. 2d at 78, our supreme court observed that,

if the defendant’s pro se claims survived the initial preliminary inquiry, counsel would be

appointed in order to independently review the defendant’s claims and to avoid the conflict of

interest that trial counsel would experience in trying to justify his or her actions contrary to the

defendant’s position. However, as we have observed above, Krankel counsel appears to have

conflated a claim’s ultimate viability with whether the claim was nonfrivolous. Further,

counsel’s investigative acumen is called into question by his failure to appreciate and investigate

defendant’s claim about Acevedo’s purported statement. Satisfaction of counsel’s obligation to

independently investigate cannot make up for his unfulfilled obligation to present nonfrivolous

claims that his investigation should have unearthed.

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¶ 58 The State specifically argues that Krankel counsel was obligated not to present frivolous

claims to the trial court. Again, we agree. We have determined, however, that the alibi claim

was nonfrivolous, because it was supported by Patricia’s affidavit and perhaps could have been

supported by Chris’s affidavit. Because there is evidence supporting the alibi, because the lapse

of time explains trial counsel’s inability to develop corroborating evidence, and because

defendant claimed that trial counsel did not investigate the claim, we conclude that defendant

raised a nonfrivolous claim for purposes of the second-step hearing. If counsel had presented the

claim, then the court could have decided it on its merits. However, by failing to present the

claim, defendant was deprived of the process that Krankel counsel was appointed to ensure.

Therein, as we have discussed above, lies error. The State does not endeavor to support its

inferred contention that the alibi claim was frivolous, and so we reject it.

¶ 59 The State attempts to argue that the alibi claim presented only a matter of trial strategy.

We agree that certain decisions, such as whether to call a witness and whether to present an alibi

defense, are generally matters of trial strategy, largely immune from ineffective-assistance

claims. People v. Enis, 194 Ill. 2d 361, 378 (2000). However, defendant claimed that the failure

to raise the alibi defense and to call the witnesses supporting it was due to trial counsel’s failure

to investigate. In support, in advance of the second-step Krankel hearing, defendant had

procured Patricia’s affidavit and Chris’s statement, thereby raising a nonfrivolous claim that it

was due to neglect, not strategy, that trial counsel did not raise the alibi defense. Krankel

counsel was therefore obligated to present the claim, notwithstanding the chance that it might not

succeed. Accordingly, we cannot accept the State’s contention that the alibi claim presented

nothing more than a matter of trial strategy.

¶ 60 The State argues that it was defendant’s burden to demonstrate why trial counsel’s

decision was not sound strategy and that defendant failed to carry the burden. We agree that, in

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making a claim of ineffective assistance, the defendant must show that counsel’s performance

was deficient and, in so doing, overcome the presumption that counsel’s conduct was reasonable.

People v. Rhodes, 386 Ill. App. 3d 649, 653-54 (2008). However, that is defendant’s ultimate

burden. For purposes of the Krankel hearing, defendant overcame his burden by alleging, with

evidentiary support, that trial counsel did not investigate the alibi claim, thereby removing

counsel’s decision from the realm of strategy and placing it into the realm of potential neglect.

We therefore reject the State’s contention.

¶ 61 The State takes issue with defendant’s claim that Krankel counsel failed to conduct a

competent and meaningful investigation into defendant’s alibi claim. The State argues that the

fact of the third amended motion belies defendant’s contention, because it shows that Krankel

counsel conducted an independent investigation as required under Moore, 207 Ill. 2d at 78.

However, the fact that an investigation occurred does not necessarily mean that it was

meaningfully conducted or that it was competently performed. While we agree that defendant’s

argument might be hyperbolic, we disagree with the State’s contention. As we have discussed

above, the failure to present the nonfrivolous claims identified tend to rebut the State’s

contention, and we reject it.

¶ 62 III. CONCLUSION

¶ 63 For the foregoing reasons, we hold that Krankel counsel abdicated his responsibility to

present defendant’s nonfrivolous claims of ineffective assistance of trial counsel, thereby

depriving him of his right to subject those claims to meaningful adversarial testing at a proper

second-step Krankel hearing. Accordingly, we reverse the judgment of the circuit court of Kane

County. We must also remand this cause so that a proper second-step Krankel hearing can be

conducted. As in Downs I, we direct the trial court to appoint an attorney to represent defendant

in presenting his claims of ineffective assistance of trial counsel. The trial court shall not appoint

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the same attorney who represented defendant in the proceedings at issue in this appeal. Finally,

the new attorney shall be allowed to conduct an investigation into defendant’s claims of

ineffective assistance of trial counsel and is admonished to present any nonfrivolous claims

supported by the record or by his or her independent investigation.

¶ 64 Reversed and remanded with directions.

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