People v. East

2026 IL App (4th) 241561-U

• Court: Appellate Court of Illinois
• Decided: January 27, 2026
• Docket: 4-24-1561
• Status: Unpublished

Opinion

NOTICE 2026 IL App (4th) 241561-U This Order was filed under FILED Supreme Court Rule 23 and is January 27, 2026 NOS. 4-24-1561, 4-24-1565 cons. not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Jersey County MAURICE D. EAST, ) Nos. 23CF18 Defendant-Appellant. ) 24CF16 ) ) Honorable ) Zachary Schmidt, ) Judge Presiding.

JUSTICE GRISCHOW delivered the judgment of the court. Justices Knecht and Vancil concurred in the judgment.

ORDER

¶1 Held: In appeal No. 24-2561, the appellate court affirmed, holding (1) defendant forfeited his arguments concerning the trial court’s failure to appoint a special prosecutor, (2) plain error did not apply, and (3) the court did not err in declining to appoint conflict counsel (see People v. Krankel, 102 Ill. 2d 181 (1984)). In appeal No. 24-2565, the appellate court reversed and remanded for second-stage postconviction proceedings where the trial court failed to make any determination defendant’s first postconviction petition was frivolous or patently without merit, failed to address the effect of a second petition, and improperly relied on input from defendant and defense counsel when dismissing the petitions.

¶2 In appeal No. 4-24-1561, docketed in the trial court as Jersey County case No.

24-CF-16 (the DUI case), defendant, Maurice D. East, was convicted following a jury trial of

aggravated driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2020)).

In appeal No. 4-24-1565, docketed in the trial court as Jersey County case No. 23-CF-18 (the

misdemeanor case) defendant pleaded guilty to misdemeanor criminal damage to property (720 ILCS 5/21-1(a)(1) (West 2022)) and was sentenced to one year of conditional discharge. On our

own motion, we consolidated the appeals for disposition.

¶3 Throughout the proceedings in both cases, defendant at times proceeded pro se

but at other times had counsel representing him. Also during both proceedings, defendant filed

multiple pro se pleadings. A special prosecutor was appointed in the misdemeanor case. In the

DUI case, defendant filed multiple pro se pleadings alleging misconduct or conflicts of interest

on the part of the State but never specifically requested the appointment of a special prosecutor.

In October 2024, following his conviction in the DUI case, defendant again filed multiple pro se

pleadings, some of which included allegations of ineffective assistance of counsel. Meanwhile,

in the misdemeanor case, defendant filed two pro se petitions for relief under the

Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2024)).

¶4 In the DUI case, the trial court conducted a preliminary inquiry into defendant’s

claims of ineffective assistance of counsel pursuant to People v. Krankel, 102 Ill. 2d 181 (1984).

The court ultimately declined to appoint conflict counsel and dismissed the multiple pleadings

defendant filed in both cases. In doing so, the court (1) never made any finding that the

postconviction petitions filed in the misdemeanor case were frivolous or patently without merit,

(2) did not address the effect of there being two petitions filed, and (3) dismissed the petitions

after receiving input from defendant and defense counsel.

¶5 On appeal in the DUI case, defendant argues the trial court erred in failing to

consider whether to appoint a special prosecutor under section 3-9008 of the Counties Code (55

ILCS 5/3-9008 (West 2024)) and by failing to appoint conflict counsel. In the misdemeanor case,

defendant argues the court erred in summarily dismissing his postconviction petitions.

¶6 In the DUI case, we find (1) defendant forfeited his arguments concerning the trial

-2- court’s failure to appoint a special prosecutor by failing to request such relief, (2) plain error

does not apply, and (3) the court did not err in declining to appoint conflict counsel.

Accordingly, in appeal No. 4-24-1561, we affirm.

¶7 In the misdemeanor case, we find the trial court improperly dismissed defendant’s

postconviction petitions without (1) making any determination the first petition was frivolous or

patently without merit and (2) addressing the effect of the second petition. The court also

improperly relied on input from defendant and defense counsel when dismissing the petitions.

Under such circumstances, we will not independently review the petition to determine if it is

frivolous or patently without merit. Accordingly, in appeal No. 4-24-1565, we reverse and

remand for second-stage postconviction proceedings.

¶8 I. BACKGROUND

¶9 A. Initial Charge and Guilty Plea in the Initial DUI Case

¶ 10 In January 2020, defendant was charged with Class 2 felony DUI (625 ILCS 5/11-

501(a) (West 2018)) in what was then docketed as Jersey County case No. 20-CF-2 (the initial

DUI case). In August 2021, defendant pleaded guilty. Before sentencing, attorney Susan Jensen

and the Unsell Law Firm, P.C. (Unsell Law Firm) entered an appearance on behalf of defendant,

and Jensen filed a motion to withdraw the plea. Jersey County State’s Attorney Benjamin

Goetten and Jersey County Assistant State’s Attorney Kevin Tellor represented the State.

¶ 11 In October 2020, the trial court entered an order stating, at the request of the

state’s attorney’s office and the Unsell Law Firm, it was appointing Greene County Assistant

State’s Attorney Caleb Briscoe as special prosecutor because the Unsell Law Firm was

representing Goetten in a pending criminal case. The case was also assigned to a new judge,

April Troemper.

-3- ¶ 12 In August 2021, despite the earlier appointment of a special prosecutor, Tellor

appeared on behalf of the State, and Dayna Switzer of the Unsell Law Firm appeared on behalf

of defendant. Tellor told the trial court that, pursuant to negotiations between Switzer, Unsell,

and Goetten, defendant would enter a new guilty plea. Defendant then pleaded guilty and was

sentenced to three years’ imprisonment.

¶ 13 B. The Misdemeanor Case and Appointment of a Special Prosecutor

¶ 14 In November 2022, defendant was initially charged with felony criminal damage

to property (720 ILCS 5/21-1(a)(1) (West 2022)), docketed as Jersey County case No. 22-CF-

196, alleging defendant knowingly damaged the vehicle of his ex-wife, Dia Darr. That charge

was later dismissed nolle prosequi and refiled in February 2023 as case No. 23-CF-18. Goetten

appeared on behalf of the State. Public defender Scott Schultz initially represented defendant.

However, on April 5, 2023, the trial court allowed Schultz to withdraw and defendant to proceed

pro se.

¶ 15 Defendant filed multiple pro se motions to dismiss, memorandums of law, and

statements of fact, alleging issues related to a speedy trial, the previous dismissal nolle prosequi,

his bail, and electronic monitoring. Defendant also alleged that Goetten and the Jersey County

State’s Attorney’s Office were biased against him, committed official misconduct, and had

multiple conflicts of interest. Defendant alleged in part that Goetten (1) was related to Darr and

had made decisions based on information from the Darr family, (2) falsely told defendant’s

attorney that Darr had fled the state in fear for her life, (3) committed misconduct and

harassment of defendant by his involvement with the plea bargain in the initial DUI case, and

(4) had a conflict of interest due to his being represented by the Unsell Law Firm. The State

generally denied the allegations but also requested appointment of a special prosecutor.

-4- ¶ 16 At the April 2023 hearing on the matter, Goetten appeared and the following

colloquy occurred:

“THE COURT: You also have your Motion for Appointment of a Special

Prosecutor. *** I’m not sure the basis for that unless it was related to *** the

allegations of misconduct or what—what are you asking or why?

ATTORNEY GOETTEN: Yeah, Judge, *** I did a very vague motion and

and *** it is based upon *** the allegation of official misconduct. Also, just

taking the case personally, so to speak, and he also *** I believe filed suit against

me yesterday perhaps. So, I’ve got a pending civil suit against me with the

Defendant, as well as allegations of official misconduct. So based upon that, we

would request a special prosecutor to be appointed.”

¶ 17 The trial court appointed the Office of the State’s Attorneys Appellate Prosecutor

(SAAP) as special prosecutor. Two attorneys from SAAP then entered their appearances and

represented the State until defendant pleaded guilty to an amended misdemeanor charge of

criminal damage to property in December 2023. On December 6, 2023, the court sentenced

defendant to 12 months of conditional discharge.

¶ 18 C. Postconviction Petition and Withdrawal of Plea in the Initial DUI Case

¶ 19 In April 2023, defendant filed a pro se postconviction petition in the initial DUI

case. Defendant alleged the Jersey County State’s Attorney’s Office had conflicts of interest,

resulting in biased and unfair treatment in violation of defendant’s right to due process.

Defendant alleged Goetten returned to the case after the dismissal of Goetten’s criminal case,

continued defendant’s prosecution, and assisted with plea negotiations while the Unsell Law

Firm still represented defendant. Defendant also made allegations similar to those made in the

-5- misdemeanor case. The trial court appointed the public defender to review the petition.

¶ 20 Schultz later appeared as counsel and told the trial court he believed defendant

had a meritorious claim and had consulted with defendant on what could happen if the petition

was granted, including a new trial and possible further penalties. Schultz requested a continuance

for defendant to consider that information. In a subsequent proceeding, Schultz told the court he

understood the State’s position was to concede the petition if it proceeded. He further stated the

State would likely file a Class X felony DUI charge, which would be an enhancement from the

original charge to which the defendant had pleaded guilty.

¶ 21 Donald Schaaf replaced Schultz as appointed counsel. On December 6, 2023, the

same day defendant pleaded guilty in the misdemeanor case, Schaaf told the trial court defendant

had asked him to proceed with the postconviction claim. The State, represented by Tellor, stated

it believed defendant was eligible to withdraw his plea, but once that happened, it would be free

to file the charge again as a Class X felony. Schaaf had explained this possibility to defendant.

The State stipulated defendant could withdraw his plea, and the court allowed defendant to do so.

¶ 22 The trial court asked if the State wanted a special prosecutor appointed, and the

State agreed. The court said the special prosecutor would be appointed to handle this case, and

the SAAP attorney who was present as special prosecutor to address the misdemeanor case

requested a status hearing in February 2024. The court provisionally appointed the public

defender’s office to represent defendant and scheduled a status hearing in February 2024.

¶ 23 D. Removal of Special Prosecutor and Refiling of the DUI Case

¶ 24 On December 21, 2023, the trial court entered in the record sheet a notice of

disposition stating the State requested removal of SAAP from the case. The court wrote that,

after further review, no conflict existed. Tellor then continued to represent the State.

-6- ¶ 25 On February 23, 2024, the State filed a new information under case No.

24-CF-16, charging defendant with aggravated DUI (625 ILCS 5/11-501(a), (d)(2)(E) (West

2018)). Defendant filed a pro se “petition” for a change of venue, alleging Goetten had conflicts

of interest and personal interest in his case. At a hearing that same day, the trial court confirmed

the public defender’s office was still provisionally appointed and held pro se motions would not

be considered. Defendant then asked to proceed pro se. The court discharged the public

defender’s office, allowed defendant to proceed pro se, and allowed defendant’s pro se motion to

be filed.

¶ 26 Defendant argued there were multiple conflicts of interest in the case because

Goetten had a personal interest in the case and had previously recused himself but continued to

prosecute the case while the trial court and Tellor were involved in the initial plea bargain. Thus,

defendant argued he could not have a fair trial in Jersey County.

¶ 27 Tellor argued the pleading was deficient on its face and defendant failed to

provide any evidence to support his allegations. The trial court clarified defendant was basically

arguing he believed the State and court had conflicts of interest and could not be fair. Defendant

agreed with that statement. The court told defendant that normally a change of venue was

relevant to arguments concerning the inability to have a fair and impartial jury. The court stated

that, since defendant was alleging a conflict of interest on the part of the State, the petition for a

change of venue was not the proper pleading for defendant to seek the relief he was requesting.

Thus, the court denied the request for a change of venue. The court then told defendant it could

not give him legal advice, but if he was seeking to have individuals removed from his case, he

would have to file a different motion.

¶ 28 The trial court subsequently dismissed the initial DUI case at the request of the

-7- State based on the filing of the new DUI charge in case No. 24-CF-16. Because of the new case

number, the case was transferred to another judge, Zachary Schmidt.

¶ 29 E. Pretrial Proceedings in the DUI Case

¶ 30 At the preliminary hearing, defendant chose to continue to proceed pro se but

stated he was considering hiring counsel. In April 2024, defendant expressed confusion about the

initial DUI case, stating he was still on parole even though the case had been dismissed, which

confused him and his parole officer. The State, represented by Tellor, explained the history and

noted defendant had served his time and was released on mandatory supervised release but had

then withdrawn his plea. The State filed the new charge based on the same occurrence. The State

said it did not know how the Illinois Department of Corrections would handle that.

¶ 31 In response, defendant stated he did not withdraw his plea. He asserted conduct of

the state’s attorney’s office caused the case to be overturned. The State said defendant was

misrepresenting what occurred. The trial court told defendant to file a written motion and a

hearing would be set.

¶ 32 On May 31, 2024, defendant asked to be appointed counsel. He also filed a pro se

motion seeking a hearing on a request for an investigation of misconduct, alleging, in part, that

he was sentenced in the initial DUI case while Goetten was recused due to a conflict of interest.

He also alleged Goetten had a personal interest in the case, violated ethical rules by making

defamatory statements about defendant, and prosecuted defendant while represented by the

Unsell Law Firm. Defendant alleged an investigation would shed more light on the matter and

show there were conflicts of interest and unfair treatment by the Jersey County State’s

Attorney’s Office.

¶ 33 The same day, the trial court appointed the public defender’s office to represent

-8- defendant. Because the court was uncertain what defendant was asking for, it asked for

clarification. Defendant said his prior case had been overturned based on wrongdoing by

Goetten, resulting in a conflict of interest. Defendant claimed since the initial DUI case was

dismissed, his parole officer wanted to know why he was then still on parole. Defendant said he

was asking for an investigation to find out what was going on.

¶ 34 The trial court appointed the public defender’s office to represent defendant and

told defendant to discuss the matter with counsel. Schaaf later appeared again as appointed

counsel for defendant and represented him through trial.

¶ 35 F. Trial

¶ 36 In October 2024 a jury trial was held. Tellor represented the State at trial. The

State presented evidence showing, in part, that on June 12, 2019, a patrol officer saw defendant’s

oncoming vehicle cross the center line, and the officer had to swerve to avoid it. After pulling

defendant over, the officer smelled a strong odor of alcohol, and defendant exhibited drunken

behavior, including droopy eyes, slurred speech, and slow movements. Defendant also failed

field sobriety tests. When the officer attempted to obtain a portable breath test, defendant

obstructed the officer’s ability to do so by putting gum into his mouth and failing to follow

instructions. When taken to the police station, defendant was resistive, belligerent, and loud.

Defendant refused to sign the warning to motorists or take a breath test.

¶ 37 Defendant testified he had been up for a couple of days because of his work, had

not had much sleep, and had consumed caffeine. Defendant was returning home from playing

pool at a bar when his phone rang as he was navigating a curve in the road. The phone slid across

the seat, prompting defendant to almost stand up in order to reach it. He asserted that he had not

consumed alcohol that day and attempted to explain the situation regarding his phone to the

-9- officer, but the officer did not acknowledge his explanation. (The officer did not recall defendant

mentioning that he reached for his phone while driving.) Defendant said he wore glasses and that

his eyes were tired from being in front of a computer. Defendant suggested he smelled like

alcohol because he was asked to break up a fight at the bar between two men who had been

drinking heavily. (The officer did not recall defendant mentioning this.) Defendant admitted he

refused a breath test. The jury found defendant guilty.

¶ 38 G. Posttrial Motions in the DUI Case

¶ 39 On October 28, 2024, defendant filed a pro se posttrial motion in the DUI case,

titled “Motion to Vacate and Reconsider for Ineffective Counsel.” Defendant alleged conflicts of

interest on the part of the state’s attorney’s office, which were similar to claims he had

previously raised. Defendant alleged those conflicts violated his right to a fair trial. Defendant

asked for an investigation by the Attorney Registration and Disciplinary Commission (ARDC)

into the alleged misconduct and for dismissal or a new trial.

¶ 40 Two days later, defendant filed a “Petition Complaint of Misconduct,” alleging

that the arresting officer committed misconduct by attacking defendant while he was in custody.

Defendant alleged there was a video recording of the incident.

¶ 41 Defendant also filed a “Petition for Complaint Motion to File Professional

Misconduct to ARDC.” Defendant restated his previous claims of conflicts of interest involving

Goetten and the state’s attorney’s office. Defendant added Goetten had called defendant and

asserted the conflicts no longer existed, and Goetten had no desire to take the case to trial.

Defendant argued his case then improperly went to trial when the state’s attorney’s office should

have requested SAAP be assigned to the case or moved for a change of venue. Defendant further

alleged Shaaf rendered ineffective assistance by failing to produce phone records and witnesses

- 10 - to corroborate defendant’s version of the facts. Defendant also filed ARDC complaint forms.

¶ 42 H. Postconviction Petitions in the Misdemeanor Case

¶ 43 Meanwhile, on October 22, 2024, defendant filed a postconviction petition and a

brief providing argument in the misdemeanor case, alleging (1) ineffective assistance of counsel

for failing to argue motions for dismissal based on the speedy trial statute (725 ILCS 5/103-5

(West 2022)); (2) official and prosecutorial misconduct based on conflicts of interest; (3) due

process violations related to the State’s actions during the dismissal nolle prosequi, the refiling

of the case, and periods defendant was held in custody or on electronic monitoring; and

(4) issues related to defendant’s bail. Defendant attached several exhibits, including affidavits

from his son and ex-wife, regarding statements made by the state’s attorney office.

¶ 44 On October 29, 2024, defendant filed a second postconviction petition, alleging

ineffective assistance of counsel based on counsel’s failure to argue abuse of power and official

misconduct by the State. Defendant did not specify whether he considered that pleading to be a

successive petition or an addition or amendment to the first petition. He attached a brief

providing argument that was essentially identical to the brief provided with the first petition.

¶ 45 The record sheet shows both postconviction petitions were filed and docketed as

pleadings for postconviction relief but only notes that the October 29, 2024, petition was sent to

Judges Schmidt and Troemper.

¶ 46 I. Krankel Proceedings in the DUI Case

¶ 47 On November 1, 2024, before sentencing in the DUI case, the trial court

addressed defendant’s pro se motions. The court stated any ARDC complaints could be filed

with the ARDC and the court would not address those. However, the court noted defendant had

also made claims of ineffective assistance of counsel, which it addressed .

- 11 - ¶ 48 The trial court asked defendant to elaborate on why he believed he received

ineffective assistance of counsel. Defendant said Schaaf did not address the alleged misconduct

by the State, and when he spoke to Schaaf after the court told him to do so, Schaff told him they

needed to focus on the trial. Defendant claimed he asked Schaaf to subpoena his phone records

for his defense to corroborate that he answered his phone when he crossed the center line of the

highway. Defendant also said he asked Schaaf to subpoena bartenders who would testify they

never served him alcohol. Lastly, defendant claimed Schaaf failed to strike a juror who attended

the arresting officer’s church and address defendant’s accusation the arresting officer attacked

defendant at the police station.

¶ 49 In response, Schaaf told the trial court the allegations of misconduct of the State

were addressed by Judge Troemper before he entered the case. This was the reason why

defendant was allowed to withdraw his plea in the initial DUI case. Regarding phone records,

Schaaf stated,

“The record I did get for one phone record, like he said, it corroborated the story

that he would’ve been on the phone at the time he crossed the lane. That did not

help our defense because that would still give the State a probable cause when

opening the door for further questions.”

¶ 50 Schaaf stated he was unable to contact the witnesses defendant identified to verify

their testimony. He said it was the best practice not to subpoena someone to testify without

knowing what they were going to say. Finally, the alleged attack involving the officer had been

addressed through a motion in limine, where a video was excluded. Defendant had not attended

that hearing.

¶ 51 The trial court determined the issues were related to trial strategy and did not

- 12 - constitute ineffective assistance of counsel. The court then held the sentencing hearing.

¶ 52 J. Written Order in Both the DUI and Misdemeanor Cases

¶ 53 On November 6, 2024, the trial court entered a written order listing multiple

cases, including the DUI case and the misdemeanor case. The court noted defendant had filed

several pro se motions, including the October 29, 2024, pleading titled as a petition for

postconviction relief. The first postconviction petition was not mentioned. The court summarized

its actions on motions that did not allege ineffective assistance of counsel and noted it had

questioned defendant on the remaining motions, “which were taken as motions for ineffective

assistance of counsel.” Defendant alleged counsel rendered ineffective assistance by failing to

(1) address misconduct by the State, (2) introduce phone records, (3) call bartenders as

witnesses, (4) strike a juror, and (5) address allegations the arresting officer attacked defendant.

The court found all of the issues were matters of trial strategy and, as a result, were not bases for

a new trial. Thus, the court dismissed the motions and pleadings filed in both cases.

¶ 54 K. Defendant’s Motions to Object and Reconsider

¶ 55 Thereafter, defendant filed multiple new pro se motions, including a motion

objecting to the November 6, 2024, order. He also filed a motion to vacate and reconsider his

petition for postconviction relief and identified the misdemeanor case numbers as separate cases

filed for postconviction relief. Defendant restated his claims of (1) ineffective assistance of

counsel for failing to argue motions for dismissal based on the speedy trial statute, (2) official

and prosecutorial misconduct based on conflicts of interest, (3) due process violations related to

the State’s actions during the dismissal of the misdemeanor case nolle prosequi, refiling of the

case, and periods defendant was held in custody or on electronic monitoring, and (4) issues

related to defendant’s bail.

- 13 - ¶ 56 L. Dismissal of the Petitions

¶ 57 On December 6, 2024, the trial court held a sentencing hearing in the DUI case.

The court first addressed defendant’s new pro se motions. The court dismissed the motion to

reconsider the November 6, 2024, order sua sponte and noted it had already addressed the issue

of ineffective assistance of counsel at the prior hearing.

¶ 58 After the trial court dismissed the additional motions, defendant stated that he

wanted to appeal his postconviction cases if they were dismissed. Defendant’s pro se pleadings

were dismissed, and defendant was sentenced to 12 years’ imprisonment.

¶ 59 This consolidated appeal followed.

¶ 60 II. ANALYSIS

¶ 61 A. Appeal No. 4-24-1561, the DUI Case

¶ 62 On appeal in the DUI case, defendant argues the trial court erred in failing to

consider whether to appoint a special prosecutor and by failing to appoint conflict counsel.

¶ 63 1. Special Prosecutor

¶ 64 Defendant argues the trial court erroneously failed to consider appointing a

special prosecutor under section 3-9008 of the Counties Code (55 ILCS 5/3-9008 (West 2024))

in light of defendant’s motions alleging misconduct and conflicts of interest on the part of the

State and because of the appointment of special prosecutors in the initial DUI and misdemeanor

cases. The State contends defendant forfeited the issue by failing to specifically request a special

prosecutor and that plain error does not apply because the court had no duty to consider

sua sponte whether to appoint a special prosecutor. We agree.

¶ 65 Section 3-9008 of the Counties Code addresses the appointment of special

prosecutors. Subsection (a-10) of section 3-9008 provides as follows:

- 14 - “The court on its own motion, or an interested person in a cause, proceeding, or

other matter arising under the State’s Attorney’s duties, civil or criminal, may file

a petition alleging that the State’s Attorney has an actual conflict of interest in the

cause, proceeding, or other matter. The court shall consider the petition, any

documents filed in response, and if necessary, grant a hearing to determine

whether the State’s Attorney has an actual conflict of interest in the cause,

proceeding, or other matter. If the court finds that the petitioner has proven by

sufficient facts and evidence that the State’s Attorney has an actual conflict of

interest in a specific case, the court may appoint some competent attorney to

prosecute or defend the cause, proceeding, or other matter.” Id. § 3-9008 (a-10).

¶ 66 Subsection (a-10) pertains only to an actual conflict of interest, which our

supreme court has recently construed to require “a specific deficiency in counsel’s strategy,

tactics, or decision-making that is attributable to the alleged conflict.” People v. Muhammad,

2025 IL 130470, ¶ 52. It has also been held that an actual conflict of interest exists when the

state’s attorney or the attorney general was interested as (1) a private individual or (2) an actual

party to the action. In re Appointment of a Special State’s Attorney, 2020 IL App (2d) 190845,

¶ 17. When the alleged interest is personal, a defendant must show either (1) the relationship

involves significant emotional ties or (2) the defendant suffered actual and substantial prejudice.

People v. Arrington, 297 Ill. App. 3d 1, 3 (1998). “Speculative allegations and conclusory

statements are insufficient to establish an actual conflict of interest.” People v. Yost, 2021 IL

126187, ¶ 38.

¶ 67 “The decision whether to appoint a special prosecutor under section 3-9008 rests

within the discretion of the trial court.” People v. Bickerstaff, 403 Ill. App. 3d 347, 352 (2010).

- 15 - Thus, where a court denies a defendant’s request for a special prosecutor, the reviewing court

will reverse only for an abuse of discretion. See id. at 354. “The threshold for finding an abuse of

discretion is high—an abuse of discretion will be found only if no reasonable person would take

the view adopted by the trial court.” People v. Max, 2012 IL App (3d) 110385, ¶ 59.

¶ 68 a. Forfeiture

¶ 69 The State argues defendant forfeited his argument the trial court erred by failing

to consider whether to appoint a special prosecutor by failing to ever specifically request such an

appointment or otherwise raise the issue in the trial court.

¶ 70 “ ‘It is well settled in Illinois that an appellant who fails to raise an issue before

the trial court forfeits the issue and may not raise it for the first time on appeal.’ ” People v.

Rodriguez, 2021 IL App (1st) 200173, ¶ 58 (quoting Williams v. Bruscato, 2019 IL App (2d)

170779, ¶ 24)). Similarly, “[t]o preserve a purported error for consideration by a reviewing court,

a defendant must object to the error at trial and raise the error in a posttrial motion.” People v.

Sebby, 2017 IL 119445, ¶ 48. If a defendant fails to do either of those things, he or she forfeits

the right to argue that issue on appeal. Id.

¶ 71 Of particular note here is that subsection (a-10) states a defendant may file a

petition alleging that the state’s attorney has an actual conflict of interest in the cause,

proceeding, or other matter. Defendant never did so, nor did defendant ever specially request

appointment of a special prosecutor in any of his pleadings or raise the failure of the trial court to

consider such an appointment in a posttrial motion.

¶ 72 Defendant argues his pro se motions sufficiently stated claims requiring the trial

court to consider them as petitions under subsection (a-10). However, while defendant alleged

conflict of interest and misconduct claims, he never directly challenged the court’s removal of

- 16 - the special prosecutor and then specifically sought different relief.

¶ 73 The State initially requested a special prosecutor but then sought removal of the

appointment, and the trial court agreed there was no conflict. Defendant did not challenge the

removal and did not ask for the appointment of a special prosecutor after that time. Instead,

defendant’s first motion alleging conflicts of interest or misconduct was titled as a motion for a

change of venue. The court told defendant that was not the correct motion for relief when

defendant was alleging conflicts of interest on the part of the State. After the court dismissed the

motion, defendant did not attempt to file a motion seeking appointment of a special prosecutor.

¶ 74 Defendant’s next motion sought a hearing. When the trial court expressed

confusion about what relief defendant was seeking, defendant told the court he wanted an

investigation as to why he was still on parole when the initial DUI charge had been dismissed. At

that point, the court appointed counsel and told defendant to confer with counsel about the issue.

At no time did defendant request the appointment of a special prosecutor, even when the court

inquired about the type of relief sought. Instead, defendant requested an alternative form of

relief. Subsequently, defendant was represented by counsel, who also did not request the

appointment of a special prosecutor.

¶ 75 Finally, while defendant again raised issues concerning conflicts of interest and

misconduct by the State in posttrial motions, he never alleged the trial court failed to consider

whether to appoint a special prosecutor. Because defendant never asked the court to consider

appointing a special prosecutor and never presented the court with a posttrial motion alleging the

court should have considered such an appointment, the argument is forfeited.

¶ 76 b. Judicial Estoppel

¶ 77 Defendant also argues judicial estoppel required the appointment of a special

- 17 - prosecutor when the trial court previously appointed special prosecutors in the initial DUI and

the misdemeanor cases.

¶ 78 “Judicial estoppel is an equitable doctrine invoked by the court at its discretion.”

Seymour v. Collins, 2015 IL 118432, ¶ 36. The purpose of the doctrine is to protect the integrity

of the judicial process by prohibiting parties from deliberately changing positions according to

the exigencies of the moment. Id. “Judicial estoppel applies in a judicial proceeding when

litigants take a position, benefit from that position, and then seek to take a contrary position in a

later proceeding.” Id.

¶ 79 Five prerequisites are generally required before a court may invoke the doctrine of

judicial estoppel:

“The party to be estopped must have (1) taken two positions, (2) that are factually

inconsistent, (3) in separate judicial or quasi-judicial administrative proceedings,

(4) intending for the trier of fact to accept the truth of the facts alleged, and

(5) have succeeded in the first proceeding and received some benefit from it.” Id.

¶ 37.

¶ 80 Judicial estoppel must be proved by clear and convincing evidence. Id. ¶ 39.

“[T]hat evidentiary standard properly accounts for a degree of caution with which this doctrine

should be considered and applied.” Id. The doctrine is an extraordinary one which should be

applied with caution. See id. (citing Construction Systems, Inc. v. FagelHaber, LLC, 2015 IL

App (1st) 141700, ¶ 38).

¶ 81 Here, just as defendant never asked the trial court to appoint a special prosecutor,

he also never raised issues of judicial estoppel. Instead, the State initially requested a special

prosecutor but then sought removal of the appointment. The court agreed there was no conflict.

- 18 - Defendant did not challenge that determination and did not ask for the appointment of a special

prosecutor after that time. Thus, defendant never afforded the court an opportunity to consider

the issue of judicial estoppel and exercise its discretion regarding the matter, and he never sought

to prove its application by clear and convincing evidence. Accordingly, the issue is forfeited.

¶ 82 c. Plain Error

¶ 83 Although we determine defendant forfeited his arguments regarding the

appointment of a special prosecutor and judicial estoppel, we note defendant also argues we may

review the failure of the trial court to consider appointing a special prosecutor for plain error.

¶ 84 The plain-error doctrine is a “narrow exception to forfeiture principles designed to

protect the defendant’s rights and the reputation of the judicial process.” People v. Moon, 2022

IL 125959, ¶ 21. A defendant invoking the plain-error doctrine bears the burden of persuasion to

demonstrate that a clear or obvious error occurred and that either (1) “the evidence is so closely

balanced that the error alone threatened to tip the scales of justice against the defendant” or

(2) “the error is so serious that it affected the fairness of the defendant’s trial and challenged the

integrity of the judicial process.” Id. ¶ 20.

¶ 85 “The first analytical step under the plain error rule is to determine whether there

was a clear or obvious error.” Id. ¶ 22. Not all errors, even ones that might demand reversal had

the argument been preserved, constitute clear or obvious errors for purposes of the plain-error

doctrine. People v. Hammons, 2018 IL App (4th) 160385, ¶ 17. Rather, an error is clear or

obvious when it is “manifest or patent.” Id. It is not enough that the defendant identifies

“arguable issues that could have been raised in the trial court.” Id.

¶ 86 If a clear or obvious error occurred, the next analytical step depends on which

prong of the plain-error doctrine the defendant invokes. People v. Jackson, 2022 IL 127256,

- 19 - ¶ 23. Defendant here argues only second-prong plain error, that the failure of the trial court to

consider whether to appoint a special prosecutor was so serious that it affected the fairness of

defendant’s trial and challenged the integrity of the judicial process.

¶ 87 Second-prong plain error focuses on the seriousness of the error, not on the

strength of the State’s evidence. Id. ¶ 24. The rationale for the second prong of the plain-error

doctrine is that some errors are presumptively prejudicial because they are so grave as to threaten

the integrity of the judicial process. Id. To constitute a structural error, an error must be “of such

magnitude that it undermines the framework within which the trial proceeds, rather than a mere

error in the trial process itself.” Id. ¶ 31. It is rare for an error to meet that standard of structural

error. Id. ¶¶ 27-28. Structural errors under federal law include “a complete denial of counsel,

denial of self-representation at trial, trial before a biased judge, denial of a public trial, racial

discrimination in the selection of a grand jury, and a defective reasonable doubt instruction.” Id.

¶ 29. Illinois courts may recognize additional categories of structural errors, so long as they are

similar to the ones recognized under federal law. Id. ¶ 30.

¶ 88 Here, defendant argues the trial court was required to appoint a special prosecutor

sua sponte. We find defendant has failed to show a clear and obvious error occurred.

¶ 89 Under section 3-9008, the trial court, on its own motion, may file a petition

alleging the need for a special prosecutor. This decision of the trial court is discretionary.

Bickerstaff, 403 Ill. App. 3d at 352. We are unaware of any cases requiring a trial court to

appoint a special prosecutor sua sponte. See People v. McDonald, 2023 IL App (4th) 221014-U,

¶ 27. This court recently rejected such a claim in McDonald.

¶ 90 In McDonald, the State charged the defendant with the aggravated battery of a

Peoria County assistant state’s attorney. Id. ¶ 4 A different Peoria County assistant state’s

- 20 - attorney prosecuted the case. Id. ¶ 5. The defendant never argued that the prosecutor had a

conflict of interest based on his professional association with the victim and a key witness in the

case. Id. On appeal, the defendant argued the prosecutor had an actual conflict of interest and

that there was an appearance of impropriety in him prosecuting the matter, thus requiring the

court to appoint a special prosecutor. Id. ¶ 19. The defendant argued the trial court’s failure to

appoint one sua sponte constituted second-prong plain error. Id. This court found the defendant

had not met his burden to show the trial court committed a clear or obvious error by failing to

appoint a special prosecutor sua sponte. Id. ¶ 27. We find the same here.

¶ 91 Here, any need of the trial court to sua sponte consider appointment of a special

prosecutor was not clear. Defendant’s allegations related to the state’s attorney’s office centered

primarily around Goetten’s relationship to Darr in the misdemeanor case and his relationship

with the Unsell Law Firm in the initial DUI case. In the misdemeanor case, a special prosecutor

remained appointed for the duration of the case. Defendant was no longer represented by the

Unsell Law Firm when he withdrew his plea in the initial DUI case or in the subsequent

proceedings, and while Goetten remained the state’s attorney, he did not personally try the DUI

case, and Darr was not a witness in that case. To the extent there were conflicts of interest or any

misconduct on the part of Goetten in the DUI case, those pertained primarily to the initial DUI

case in which defendant obtained the remedy he sought by withdrawing his plea. After that, in

the DUI case, a special prosecutor was initially appointed but then removed after the court found

there was no conflict. Toller then prosecuted the case. Defendant never specifically challenged

that action and instead filed motions seeking different relief.

¶ 92 Under these circumstances, where defendant made allegations primarily

concerning conduct in other cases and where he did not challenge the removal of the special

- 21 - prosecutor in the DUI case and instead asked for different forms of relief, he has not shown a

clear and obvious error on the part of the trial court for not considering sua sponte whether to

appoint a special prosecutor. The court was not required to engage in speculation that issues

pertaining to the misdemeanor and initial DUI cases created an ongoing actual conflict of interest

in the DUI case requiring the appointment of a special prosecutor. This is especially true when

the court had granted the State’s request to remove the special prosecutor based on an

unchallenged finding there was no conflict. Accordingly, defendant has not shown plain error.

¶ 93 2. Krankel

¶ 94 Defendant next contends the trial court erred by failing to appoint conflict counsel

after completing its preliminary Krankel inquiry.

¶ 95 A pro se posttrial claim alleging ineffective assistance of counsel is governed by

Krankel and its progeny. People v. Roddis, 2020 IL 124352, ¶ 34. “The procedure encourages the

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

Id. Under this procedure, the court does not automatically appoint new counsel when a defendant

alleges ineffective assistance ; rather, the court first examines the factual basis of the defendant’s

claim. Id. ¶ 35. Specifically, the trial court must conduct an adequate inquiry, that is, an inquiry

sufficient to determine the factual basis of the claim. People v. Ayres, 2017 IL 120071, ¶ 11. In

doing so, the court considers the merits of the defendant’s allegations in their entirety. Roddis,

2020 IL 124352, ¶ 61.

¶ 96 If the trial court determines the claims lack merit or pertain only to matters of trial

strategy, the court need not appoint new counsel and may deny the defendant’s pro se claims. Id.

¶ 35. “However, if the allegations show possible neglect of the case, new counsel should be

appointed.” Id. Doing so permits new counsel to independently evaluate the defendant’s claims,

- 22 - while avoiding the conflict of interest trial counsel would otherwise have, and represent the

defendant at a hearing on the pro se ineffective assistance of counsel claims. Id. ¶ 36. “[T]he goal

of any Krankel proceeding is to facilitate the trial court’s full consideration of a defendant’s pro se

claims of ineffective assistance of counsel and thereby potentially limit issues on appeal.” People

v. Jolly, 2014 IL 117142, ¶ 29.

¶ 97 Whether a trial court properly conducted a preliminary Krankel inquiry presents an

issue we review de novo. Id. ¶ 28. However, we review a trial court’s decision declining the

appointment of new counsel following an adequate inquiry for manifest error. People v. McCarter,

385 Ill. App. 3d 919, 941 (2008). “Manifest error is that which is ‘clearly evident, plain, and

indisputable.’ ” People v. Johnson, 206 Ill. 2d 348, 360 (2002) (quoting People v. Ruiz, 177 Ill. 2d

368, 384-85 (1997)).

¶ 98 A defendant claiming ineffective assistance of counsel must demonstrate that

(1) counsel’s performance fell below an objective standard of reasonableness and (2) a reasonable

probability exists that, but for the deficient performance, the outcome of the proceedings would

have been different. Strickland v. Washington, 466 U.S. 668, 669-70 (1984).

¶ 99 Decisions as to which witnesses to call or what evidence to present are viewed as

matters of trial strategy and generally are immune from claims of ineffective assistance of counsel.

People v. Brown, 2018 IL App (4th) 160288, ¶ 47. “The only exception to this [general] rule is

when counsel’s chosen trial strategy is so unsound that counsel entirely fails to conduct any

meaningful adversarial testing.” (Internal quotation marks omitted.) Id.

¶ 100 Here, the trial court allowed defendant to present his concerns and questioned

Schaaf, who explained how the issues were matters of trial strategy or were otherwise resolved.

Regarding misconduct by the State, defendant did not elaborate on the specific misconduct he

- 23 - believed Schaaf should have presented to the court. Schaaf then noted defendant had obtained

relief for the conflicts and misconduct alleged in the initial DUI case by withdrawing his plea. It

was reasonable for Schaaf to then focus on trial, especially when the conflicts and other issues

raised did not appear to have a real effect on the DUI case going forward. Schaaf then explained

he obtained a phone record, and he indicated that, while it would corroborate defendant’s claim,

officers nevertheless would have had probable cause to stop defendant and ask him questions.

Given the strength of the evidence defendant was impaired, the decision not to focus on phone

records was a matter of trial strategy and a reason for crossing the center line due to reasons

other than intoxication did not create a reasonable probability that would affect the outcome of

the trial.

¶ 101 Schaaf further explained he was unable to contact the witnesses defendant

identified to verify their testimony. He stated it was the best practice to not subpoena someone to

testify without knowing what they were going to say, which was a reasonable matter of trial

strategy. Schaaf told the trial court the alleged attack involving the arresting officer had been

addressed through a motion in limine where a video was excluded. Defendant, who had not

attended that hearing, has not explained how that matter adversely affected his trial.

¶ 102 Further, although defendant contends otherwise, we find the evidence against him

was overwhelming, such that counsel’s alleged errors would not have created a reasonable

probability the outcome of the trial would have been different. Thus, the trial court’s

determination the issues were matters of trial strategy and did not amount to ineffective

assistance of counsel was not manifest error. Accordingly, in appeal No. 4-24-1561, we affirm.

¶ 103 B. Appeal No.4-24-1565, the Misdemeanor Case

¶ 104 In the misdemeanor case, defendant argues the trial court erred in summarily

- 24 - dismissing his postconviction petitions without making any determination they were frivolous or

patently without merit.

¶ 105 The Act permits persons under criminal sentences to assert their convictions

resulted from a substantial denial of their rights under the United States Constitution or Illinois

Constitution. See People v. Tate, 2012 IL 112214, ¶ 8. There are three stages to a postconviction

proceeding. Id. ¶ 9. At the first stage, the trial court independently reviews the postconviction

petition and determines whether it is frivolous or patently without merit. Id.; 725 ILCS

5/122-2.1(a)(2) (West 2024). If the petition is not dismissed at the first stage, the court advances

it to the second stage, where counsel may be appointed to represent an indigent defendant and

the defendant has the burden of making a substantial showing of a constitutional violation.

People v. Domagala, 2013 IL 113688, ¶ 33. If the defendant meets this burden, the matter is

advanced to a third-stage evidentiary hearing. Id. ¶ 34.

¶ 106 At the first stage of postconviction proceedings, a petition “may be summarily

dismissed as frivolous or patently without merit only if the petition has no arguable basis either

in law or in fact.” Tate, 2012 IL 112214, ¶ 9. At this stage, the trial court “considers the

petition’s substantive virtue rather than its procedural compliance.” People v. Hommerson, 2014

IL 115638, ¶ 11. “The allegations of the petition, taken as true and liberally construed, must

present the gist of a constitutional claim.” People v. Hatter, 2021 IL 125981, ¶ 24. “[T]o survive

summary dismissal, a postconviction petition need present only a limited amount of detail and is

not required to set forth a constitutional claim in its entirety.” People v. Brown, 236 Ill. 2d 175,

188 (2010). Accordingly, “a pro se petitioner is not required to allege facts supporting all

elements of a constitutional claim to survive summary dismissal.” Id.

¶ 107 Under the Act, within 90 days after the filing and docketing of a postconviction

- 25 - petition, the trial court shall examine the petition and enter an order. 725 ILCS 5/122-2.1(a)

(West 2024). If the petitioner is sentenced to imprisonment and the court determines the petition

is frivolous or is patently without merit, it shall dismiss the petition in a written order,

specifying the findings of fact and conclusions of law it made in reaching its decision. Id.

§ 122-2.1(a)(2). If the petition is not dismissed under that section, the court shall order the

petition to be docketed for further consideration. Id. § 122-2.1(b). We review a first-stage

summary dismissal of a postconviction petition de novo. Hatter, 2021 IL 125981, ¶ 24.

¶ 108 Here, the trial court failed to enter a written order specifying the findings of fact

and conclusions of law it made in reaching its decision to dismiss defendant’s petitions. Further,

the court never addressed all of the matters defendant raised and made no such findings at all.

Defendant contends we should reverse on that basis. However, this court may affirm the trial

court’s judgment on any basis supported by the record. People v. Wright, 2013 IL App (4th)

110822, ¶ 32. It is also well-established that the trial court’s failure to issue a written order

detailing findings of fact and conclusions of law when summarily dismissing a postconviction

petition does not require automatic reversal because the requirement is directory, meaning a

defendant must establish prejudice to warrant a remedy. People v. Porter, 122 Ill. 2d 64, 81-82

(1988). Thus, we address whether it is appropriate for this court to nevertheless affirm the trial

court’s dismissal of defendant’s petitions even though the court failed to address all of the issues

and make the required findings.

¶ 109 We first observe defendant was sentenced to conditional discharge after pleading

guilty and has served his sentence., Thus, he is not “imprisoned,” as normally would be required

by the Act in order to file a postconviction petition. Accordingly, there is a question as to

whether defendant had standing to file his petitions or if the matter is moot.

- 26 - ¶ 110 A defendant in a misdemeanor case need not be imprisoned to proceed under the

Act. People v. Warr, 54 Ill. 2d 487, 493 (1973). The requirement that the trial court enter a

written order specifying the findings of fact and conclusions of law is also still applicable to a

defendant convicted of a misdemeanor who was not imprisoned. See id. (noting that, with

specific exceptions relating to imprisonment, timeliness, and appointment of counsel, a

postconviction proceeding related to a misdemeanor is governed by the Act). Thus, defendant

had standing to file his petitions.

¶ 111 Next, in People v. Prante, 2023 IL 127241, ¶ 57, our supreme court found a

postconviction petition was not moot even after the sentence was served, noting that a

defendant’s interest in purging himself of the stigma and disabilities which attend a criminal

conviction prevents a case from being moot. Accordingly, we find the matter is not moot.

¶ 112 We also observe defendant’s petitions were untimely. A postconviction petition in

a misdemeanor case must be filed within four months after the rendition of the final judgment if

there was a guilty plea and six months if there was a trial. Warr, 54 Ill. 2d at 493. The Unified

Code of Corrections defines conditional discharge, in part, as “a sentence” and so it constitutes a

final judgment on a defendant’s conviction. 730 ILCS 5/5-1-4 (West 2024); see Wakefield v.

Department of State Police, 2013 IL App (5th) 120303, ¶ 5. However, it is improper to

summarily dismiss a postconviction petition at the first stage based on untimeliness. People v.

Boclair, 202 Ill. 2d 89, 99 (2022). Thus, untimeliness does not provide this court with a basis to

affirm the dismissal of the petitions. Accordingly, we address the effect of the trial court’s

dismissal of the petitions, purportedly on the merits, and whether it is appropriate for this court to

independently determine whether the petitions are frivolous or patently without merit.

¶ 113 Here, the trial court not only failed to issue a written order detailing findings of

- 27 - fact and conclusions of law, but it also failed to make any determination at all that the first

petition was frivolous or patently without merit. Instead, the court addressed concerns of

conflicts of interest or misconduct on the part of the State during the Krankel proceedings in the

DUI case and never specifically addressed other issues raised by the petitions concerning the

misdemeanor case. We further note the court never specifically referred to the first petition at all,

which the record sheet suggests the court may have overlooked.

¶ 114 To further complicate the matter, because the trial court addressed the matter as

part of the Krankel proceedings in the DUI case, the court also relied on statements from

defendant and defense counsel. Doing so was improper when summarily dismissing a

postconviction petition because it is only after the court has completed an independent

examination of the petition that a defendant may have an opportunity to present him or herself

and any witnesses in support of the allegations in the petition. See People v. Barker, 258 Ill. App.

3d 323, 326 (1994); see generally People v. Gaultney, 174 Ill. 2d 410, 420 (1996). Argument by

counsel at the first stage is also premature. Barker, 258 Ill. App. 3d at 326. This seems

particularly improper here, where defendant’s trial counsel was asked to provide input about

allegations concerning his own alleged deficient representation.

¶ 115 The trial court also made no findings or orders suggesting it considered whether

the second petition was actually a successive postconviction petition. See People v. Lusby, 2020

IL 124046, ¶ 27 (“The Act itself contemplates the filing of a single petition.”). As previously

noted, it is unclear whether the court was aware there were two petitions. It also seems clear

from the record the court either confused the petitions with the Krankel issues and proceedings in

the DUI case or recharacterized them as Krankel motions; but if it did, it did so in the DUI case,

which was the wrong case. This resulted in the court failing to address issues unique to the

- 28 - misdemeanor case.

¶ 116 In sum, the trial court never addressed the petitions in the correct context at all.

This court has declined to independently examine the record to determine whether a defendant’s

postconviction petition was frivolous or patently without merit when the trial court mistakenly

failed to make any such determination. See People v. Carter, 383 Ill. App. 3d 795, 798 (2008). In

doing so, this court noted, “The Act’s legislative scheme provides for a trial court initially to

(1) make that determination and, if it does not so decide, (2) then proceed to the second stage of

postconviction proceedings.” Id. Thus, this court reversed and remanded for second-stage

proceedings. Id. A remand for second stage proceedings has also been required when the trial

court prematurely heard argument on a petition. See Barker, 258 Ill. App. 3d at 326-27.

¶ 117 Accordingly, in appeal No. 4-24-1565, we reverse the trial court’s dismissal of

defendant’s postconviction petitions and remand for second-stage proceedings. This decision

does not constitute any statement by this court regarding the merits, if any, of defendant’s

petitions. See Carter, 383 Ill. App. 3d at 798.

¶ 118 III. CONCLUSION

¶ 119 For the reasons stated, the judgment of the trial court in the DUI case is affirmed.

In the misdemeanor case, we reverse and remand for second-stage postconviction proceedings.

¶ 120 No. 4-24-1561, Affirmed.

¶ 121 No. 4-24-1565, Reversed and remanded.

- 29 -