People v. Etter

2023 IL App (4th) 220658-U

• Court: Appellate Court of Illinois
• Decided: April 13, 2023
• Docket: 4-22-0658
• Status: Unpublished

Opinion

NOTICE This Order was filed under 2023 IL App (4th) 220658-U FILED April 13, 2023 Supreme Court Rule 23 and is Carla Bender NOS. 4-22-0658, 4-22-0659, 4-22-0660 cons. not precedent except in the 4th District Appellate limited circumstances allowed Court, IL IN THE APPELLATE COURT under Rule 23(e)(1).

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Adams County COLLIN G. ETTER, ) Nos. 20CF317 Defendant-Appellant. ) 21CF460 ) 21CF511 ) ) Honorable ) Amy Christine Lannerd, Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court. Justices Turner and Doherty concurred in the judgment.

ORDER ¶1 Held: The appellate court reversed and remanded, holding (1) the trial court erred by denying as untimely defendant’s pro se motion to withdraw his guilty plea and vacate his sentence and (2) defendant’s pro se postplea claims of ineffective assistance of counsel were sufficient to trigger an inquiry pursuant to People v. Krankel, 102 Ill. 2d 181 (1984).

¶2 Defendant, Collin G. Etter, appeals his convictions for theft in Adams County

case No. 21-CF-460, unlawful delivery of a controlled substance in Adams County case No.

20-CF-317, and theft in Adams County case No. 21-CF-511. Defendant argues the trial court

erred by denying his pro se motion to withdraw guilty plea and vacate sentence on the basis that

it was untimely. Defendant also argues the court erred by striking a letter to the circuit clerk he

filed after his plea and by failing to conduct a preliminary inquiry pursuant to People v. Krankel, 102 Ill. 2d 181 (1984), on the allegations of ineffective assistance of counsel contained in the

letter. We reverse and remand.

¶3 I. BACKGROUND

¶4 Defendant was charged in Adams County case No. 20-CF-317 with unlawful

delivery of a controlled substance (720 ILCS 570/401(c)(1) (West 2020)) and unlawful delivery

of methamphetamine (720 ILCS 646/55(a)(2)(A) (West 2020)). He was charged in Adams

County case No. 21-CF-460 with home invasion (720 ILCS 5/19-6(a)(2) (West 2020)),

residential burglary (id. § 19-3(a)), and theft (id. § 16-1(a)(1)(A), (b)(4)). He was charged in

Adams County case No. 21-CF-511 with theft (id. § 16-1(a)(2)(A)).

¶5 The record shows defendant was initially represented by private attorney Donald

Heck in Adams County case No. 20-CF-317. Heck subsequently withdrew, and Assistant Public

Defender Vanessa Pratt was appointed. However, Pratt withdrew from representing defendant in

Adams County case No. 20-CF-317 due to a conflict, and Assistant Public Defender John Citro

represented him for the rest of the case. Pratt represented defendant in Adams County case Nos.

21-CF-460 and 21-CF-511.

¶6 Defendant entered into a plea agreement resolving all three cases, pursuant to

which he pled guilty to theft in Adams County case No. 21-CF-460, unlawful delivery of a

controlled substance in Adams County case No. 20-CF-317, and theft in Adams County case No.

21-CF-511. In exchange, the State agreed to dismissal of the remaining counts and a sentencing

cap of 10 years’ imprisonment. After admonishing defendant, the trial court accepted the plea.

¶7 On May 13, 2022, the trial court sentenced defendant to seven years’

imprisonment for unlawful delivery of a controlled substance and two years’ imprisonment on

each of the theft charges. The sentences for the theft charges were to run concurrently with one

-2- another but consecutive to the sentence for unlawful delivery of a controlled substance. The

court advised defendant that, prior to taking an appeal, he was required to file a written motion to

vacate the judgment and withdraw his guilty plea within 30 days.

¶8 On July 13, 2022, the circuit clerk filed a pro se letter from defendant that stated

defendant wanted to file a “motion for ineffective assistance of counsel” and a “motion to

reconsider.” The letter stated defendant told Pratt after the sentencing hearing that he wanted to

file a motion to reconsider the sentence, but she failed to file such a motion.

¶9 That same day, the clerk also filed a pro se motion to withdraw guilty plea and

vacate sentence received from defendant. The motion stated: “The plea was the result of

coercion. My lawyer Vanessa Pratt informed me that the State[’s] Attorney offered to get me

help and get me into Rehab. I was confused. I thought if I successfully completed treatment I

would get Drug Court or Probation.” The motion also stated that defendant received “inadequate

representation by counsel” because Heck filed a motion to suppress evidence in Adams County

case No. 20-CF-317, and neither Pratt nor Citro set the motion for a hearing even though

defendant informed them he wanted a hearing on the motion. The motion also alleged there was

no factual basis for defendant’s plea in Adams County case No. 21-CF-460, and defendant was

not mentally competent to enter the plea because he was under the influence of “psychiatric

medication.”

¶ 10 A “Proof/Certificate of Service” filed on July 13, 2022, which was signed by

defendant, indicates documents addressed to the Adams County circuit clerk and Adams County

state’s attorney were placed in the institutional mail at 6 p.m. on June 10, 2022, at Graham

Correctional Center. The document contained the full addresses of the circuit clerk’s office and

the state’s attorney’s office. The document stated: “Pursuant to *** 735 ILCS 5/1-109 I declare,

-3- under penalty of perjury that I am a named party in the above action, that I have read the above

documents, and that the information contained therein is true and correct to the best of my

knowledge and belief.”

¶ 11 On July 14, 2022, the trial court entered an order denying as untimely the motion

to withdraw guilty plea and vacate sentence. The court further found defendant’s letter to the

circuit clerk filed on July 13, 2022, was not a proper filing before the court and ordered that it be

stricken from the court file. This appeal followed.

¶ 12 II. ANALYSIS

¶ 13 On appeal, defendant argues the trial court erred by denying his pro se motion to

withdraw guilty plea and vacate sentence on the basis that it was untimely because it was timely

filed under the “mailbox rule.” Defendant further contends the court erred by striking his letter to

the circuit clerk containing allegations of ineffective assistance of counsel, as it also was filed

within 30 days of his sentence pursuant to the mailbox rule, and it was sufficient to trigger a

Krankel inquiry.

¶ 14 A. Timeliness

¶ 15 Defendant argues his motion to withdraw guilty plea and vacate sentence and his

letter to the circuit clerk were timely filed under the mailbox rule. Defendant notes that a

“Proof/Certificate of Service” filed along with these documents shows they were placed in the

institutional mail at Graham Correctional Center on June 10, 2022, which was within 30 days of

his sentencing. The State concedes the motion to withdraw guilty plea and vacate sentence was

timely filed under the mailbox rule and that a remand for further proceedings is necessary.

¶ 16 Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) provides that no appeal

from a judgment entered upon a negotiated guilty plea shall be taken unless the defendant files a

-4- motion to vacate the guilty plea and vacate the judgment within 30 days of the date on which the

sentence is imposed. The rule further provides that such a motion shall be presented promptly to

the trial court, and the trial court shall appoint counsel if the defendant is indigent and desires

counsel. Id. Counsel shall comply with the directives of the rule, including consulting with the

defendant, reviewing the record, and making any necessary amendments to the motion. Id. The

trial court shall rule on the motion promptly. Id.

¶ 17 “Under the mailbox rule, pleadings *** are considered timely filed on the day

they are placed in the prison mail system by an incarcerated defendant [citation].” People v.

Shines, 2015 IL App (1st) 121070, ¶ 31. To rely on the date of mailing as the date of filing, a

defendant must comply with Illinois Supreme Court Rule 12(b)(6) (eff. July 1, 2017). Pursuant

to Rule 12(b)(6), service by mail by a self-represented litigant residing in a correctional facility is

proved “by certification under section 1-109 of the Code of Civil Procedure of the person who

deposited the document in the institutional mail, stating the time and place of deposit and the

complete address to which the document was to be delivered.” Id.

¶ 18 Here, the “Proof/Certificate of Service” contains a certification substantially

compliant with section 1-109 of the Code of Civil Procedure (735 ILCS 5/1-109 (West 2020))

and the full addresses to which the documents were to be delivered. The certification indicates

that documents were placed in the institutional mail at Graham Correctional Center on June 10,

2022, which was within 30 days of date of defendant’s sentencing. While the “Proof/Certificate

of Service” does not actually list the documents that were placed in the institutional mail on June

10, 2022, we note it was filed by the circuit clerk on July 13, 2022, along with the letter to the

circuit clerk and the motion to withdraw guilty plea and vacate sentence. Accordingly, we accept

the State’s concession that the motion to withdraw guilty plea and vacate sentence was timely

-5- filed under Rule 12(b)(6) such that the matter must be remanded for further proceedings on

defendant’s postplea motion. While the State does not specifically address the timeliness of the

letter to the circuit clerk, we find that letter was also timely filed under Rule 12(b)(6), as it was

filed along with the pro se postplea motion.

¶ 19 B. Krankel

¶ 20 Defendant also argues the trial court erred by striking his letter to the circuit clerk

and by failing to hold a Krankel inquiry on his claims of ineffective assistance of counsel raised

in the letter. Defendant requests that we remand the matter for a preliminary Krankel inquiry on

these claims. The State argues a letter to the circuit clerk is not a “motion to the court” and is

insufficient to require a Krankel inquiry. The State also contends that because only Pratt was

named in the letter, it could not be deemed a claim of ineffective assistance of counsel as to all of

defendant’s attorneys.

¶ 21 Our supreme court’s decision in Krankel has led to a common-law procedure

which is triggered when a defendant raises a pro se posttrial or postplea claim of ineffective

assistance of counsel. People v. Ayres, 2017 IL 120071, ¶ 11; People v. Gabrys, 2013 IL App

(3d) 110912, ¶ 21. The Krankel procedure “serves the narrow purpose of allowing the trial court

to decide whether to appoint independent counsel to argue a defendant's pro se posttrial

ineffective assistance claims.” People v. Patrick, 2011 IL 111666, ¶ 39. Pursuant to this

procedure, when a defendant makes such a claim, the trial court should first conduct an inquiry

into the underlying factual basis, if any, of the claim. People v. Moore, 207 Ill. 2d 68, 79 (2003).

“If the court determines that the claim lacks merit or pertains only to matters of trial strategy,

then the court need not appoint new counsel and may deny the pro se motion.” People v. Roddis,

2020 IL 124352, ¶ 35. However, if the allegations show possible neglect of the case, the court

-6- should appoint new counsel to represent the defendant at a hearing on his claims of ineffective

assistance. Id. ¶¶ 35-36.

¶ 22 To trigger a Krankel inquiry, a self-represented defendant need only bring his or

her claim to the trial court’s attention, whether orally or in writing. Id. ¶ 35; Ayres, 2017 IL

120071, ¶ 24. “[A] defendant is not required to file a written motion [citation] but may raise the

issue orally [citation] or through a letter or note to the court [citation].” Id. ¶ 11.

¶ 23 In the instant case, both the letter to the circuit clerk and the motion to withdraw

guilty plea and vacate sentence contained pro se allegations of ineffective assistance of counsel.

As discussed earlier, both the written pro se motion to withdraw guilty plea and vacate sentence

and the letter to the circuit clerk were timely filed. While defendant’s postplea letter was

addressed to the circuit clerk rather than the trial court, the record shows the letter was sufficient

to bring defendant’s claims to the court’s attention. The court was clearly aware of the letter, as it

entered an order striking it. Accordingly, we find both the pro se postplea motion and the letter

were sufficient to bring defendant’s pro se postplea claims of ineffective assistance of counsel to

the trial court’s attention and trigger Krankel proceedings. While the State correctly notes the

letter to the circuit clerk contained allegations of ineffective assistance of counsel concerning

only Pratt, we note that the pro se motion to withdraw guilty plea and vacate sentence contained

allegations concerning both Pratt and Citro.

¶ 24 III. CONCLUSION

¶ 25 For the reasons stated, we reverse the trial court’s denial of defendant’s pro se

motion to withdraw his guilty plea and vacate his sentence, and we remand the matter for further

proceedings on the motion in accordance with Rule 604(d), including the appointment of counsel

if defendant so desires. If the court reappoints one of defendant’s former attorneys, it should also

-7- conduct a Krankel inquiry to determine whether to appoint new counsel to represent defendant in

presenting his pro se postplea claims of ineffective assistance of counsel. However, if, on

remand, the court appoints new counsel to represent defendant, a Krankel inquiry would be

unnecessary because such counsel would be able to argue any colorable postplea claims of

ineffective assistance of counsel defendant may have. See Patrick, 2011 IL 111666, ¶ 39.

¶ 26 Reversed and remanded.

-8-