People v. Heisch

2022 IL App (5th) 190429-U

• Court: Appellate Court of Illinois
• Decided: June 8, 2022
• Docket: 5-19-0429
• Status: Unpublished

Opinion

NOTICE 2022 IL App (5th) 190429-U NOTICE Decision filed 06/08/22. The This order was filed under text of this decision may be NO. 5-19-0429 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1).

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Madison County. ) v. ) No. 16-CF-1650 ) EVA D. HEISCH, ) Honorable ) Richard L. Tognarelli, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE CATES delivered the judgment of the court. Justices Welch and Wharton concurred in the judgment.

ORDER

¶1 Held: We remand this case with directions for the trial court to conduct a preliminary inquiry pursuant to People v. Krankel, 102 Ill. 2d 181 (1984), and its progeny, because the trial court did not conduct an inquiry into the defendant’s pro se allegations of ineffective assistance of counsel.

¶2 The defendant, Eva D. Heisch, appeals her convictions and sentence for first degree

murder and armed robbery. The defendant alleges that her trial attorneys were ineffective

for failing to: (1) preclude the State from using the defendant’s post-Miranda 1 right to

silence as evidence of her guilt at trial; (2) submit a limiting instruction regarding

1 Miranda v. Arizona, 384 U.S. 436 (1966). 1 statements made by officers during the interrogation of the defendant; (3) submit a limiting

instruction that her codefendant’s conviction was not evidence against the defendant; and

(4) request separate verdict forms for intentional murder and felony murder. The defendant

also challenges her sentence, arguing that: (1) it was disproportionate to her role in the

offense; (2) the aggravating factors cited by the trial court did not justify the maximum

sentence given; and (3) the maximum sentence given to the defendant did not reflect the

mitigating evidence presented or include a goal of rehabilitation. The defendant further

argues that her trial attorneys were ineffective for failing to file a postsentencing motion

and that this case should be remanded pursuant to People v. Owens, 384 Ill. App. 3d 670

(2008), so that the defendant may consult with counsel about filing a motion to reconsider

her sentence. Finally, the defendant contends that remand for a preliminary inquiry

pursuant to People v. Krankel, 102 Ill. 2d 181 (1984), is necessary because the defendant

made posttrial allegations of ineffective assistance of counsel and the trial court failed to

conduct an inquiry into the defendant’s allegations.

¶3 For the following reasons, we remand this case to the trial court for a preliminary

Krankel inquiry into the defendant’s pro se allegations of ineffective assistance of counsel.

Because we are remanding this matter for a preliminary inquiry, we need not address the

defendant’s remaining issues.

¶4 BACKGROUND

¶5 On July 21, 2016, the defendant was charged with three counts of first degree

murder (720 ILCS 5/9-1(a)(1) through (a)(3) (West 2014)) and one count of armed robbery

(720 ILCS 5/18-2(a)(1) (West 2014)). On August 26, 2019, following a six-day jury trial,

2 the jury returned general verdict forms finding the defendant guilty of both first degree

murder and armed robbery.

¶6 On September 16, 2019, a letter from the defendant, dated September 11, 2019, was

filed with the circuit court. In this letter, the defendant alleged, inter alia, that “vital”

evidence from one of her laptops and a letter to the defendant from the codefendant were

not disclosed in discovery. The defendant further alleged that the evidence was supposed

to be used in the defense of her case, but that her trial attorneys ignored the defendant’s

request to use the evidence.

¶7 On September 23, 2019, the defendant’s attorneys filed a motion for a new trial

alleging various trial errors as well as the State’s failure to produce the defendant’s

computer and the letter in discovery. On October 9, 2019, the trial court heard the

defendant’s motion for a new trial. The trial court denied the motion for a new trial and

proceeded to sentencing.

¶8 During the sentencing portion of the hearing, the defendant made a statement in

allocution. At the outset of her statement, the defendant requested that the clerk file the

defendant’s notice of appeal because she did not believe her attorneys would do so. Later

in her statement, the defendant stated the following:

“I would like to let you know, your Honor, that not many people will

know about the letter that you sealed the Friday before trial started.[2] But I

2 Prior to trial, a jail administrator at the Madison County Sheriff’s Office emailed a letter from the defendant to the trial judge. In this letter, the defendant complained of her trial attorneys’ defense strategy and alleged that her attorneys asked her lie to the jury. 3 do. And it bothers me that a reputation of—the reputation of the attorneys

would cause that document to be sealed. I do not believe that my attorneys

have done their job. And I think that that’s demonstrated by the fact that there

was no evidence submitted on my behalf.

All though [sic] in their possession they had a letter from Jessie Werley

stating that the only reason that he accused me of being there and being

involved in that murder is because I turned him in. But that letter was not

given to this Court. That letter was not submitted for evidence. And I don’t

know what the reasoning is behind that. I don’t know what the reasoning is

behind the fact that none of the police reports or the officers that were called

when he had abused me, they didn’t testify.

Why the expert witness, the lab expert, all of a sudden was dismissed the

morning he was supposed to be testifying. Never testified in Court. Why

other witnesses that were on my witness list did not testify in Court. Why the

hospital records showing that I had been choked so badly by Jessie Werley

that his fingerprints were on my neck. That I had been cut by the knife that

he tried to use on everybody else. Why those weren’t submitted into

evidence. But I do not feel that the attorneys in my case did their job

properly.”

The defendant then began to allege that the State failed to include evidence in discovery,

but the trial court interrupted the defendant. The trial court told the defendant that “this has

nothing to do with your sentencing” and advised the defendant that she could “raise all

4 these issues with the Appellate Court.” The trial court stated that her attorneys made

arguments in the defendant’s posttrial motion, “which preserve all those errors.” The

defendant continued with her statement in allocution.

¶9 Ultimately, the trial court sentenced the defendant to 60 years in the Illinois

Department of Corrections (IDOC) for first degree murder, consecutive to 30 years in

IDOC for armed robbery. The trial court advised the defendant of her right to file a motion

to reduce or reconsider sentence and to file a notice of appeal. The defendant indicated that

she did not wish to file a motion to reduce or reconsider sentence but wished to proceed

with an appeal. No postsentencing motion was filed by the defendant’s trial attorneys. This

appeal followed.

¶ 10 ANALYSIS

¶ 11 On appeal, the defendant contends that the trial court failed to conduct an inquiry

into her pro se allegations of ineffective assistance of counsel. The defendant asks this

court to remand this case for a preliminary inquiry into her pro se allegations. The State

concedes that the trial court failed to conduct an inquiry into the defendant’s pro se

allegations and that this case should be remanded for the purpose of conducting a

preliminary inquiry. We agree.

¶ 12 The common law procedure that has developed from Krankel and its progeny is

triggered when a defendant raises a pro se posttrial claim of ineffective assistance of

counsel. People v. Jackson, 2020 IL 124112, ¶ 96. When the defendant makes such a claim,

the trial court should first conduct an inquiry into the factual basis of the claim. Jackson,

2020 IL 124112, ¶ 97. If the trial court finds that the claim lacks merit or pertains only to

5 matters of trial strategy, new counsel need not be appointed, and the trial court may deny

the pro se motion. Jackson, 2020 IL 124112, ¶ 97. If the allegations show possible neglect

of the case, however, the trial court should appoint new counsel to represent the defendant.

Jackson, 2020 IL 124112, ¶ 97. New counsel then represents the defendant at a hearing on

the pro se claim of ineffective assistance of counsel. Jackson, 2020 IL 124112, ¶ 97.

¶ 13 If the trial court has failed to conduct any inquiry into the defendant’s pro se claims,

the case should be remanded for the trial court to conduct the appropriate inquiry. People

v. Moore, 207 Ill. 2d 68, 79 (2003). The primary purpose of the preliminary inquiry is to

give the defendant an opportunity to flesh out his or her claims of ineffective assistance of

counsel so that the trial court can determine whether it is necessary to appoint new counsel.

People v. Ayres, 2017 IL 120071, ¶ 20. In conducting this inquiry, some interchange

between the trial court and trial counsel regarding the facts and circumstances surrounding

the defendant’s claims is permissible, and usually necessary, to assess whether further

action is warranted. Ayres, 2017 IL 120071, ¶ 12. The trial court may also discuss the

claims with the defendant. Ayres, 2017 IL 120071, ¶ 12. Finally, the trial court can base its

evaluation on its personal knowledge of trial counsel’s performance at trial and the

insufficiency of the defendant’s claims. Ayres, 2017 IL 120071, ¶ 12. The goal of Krankel

proceedings is to facilitate the trial court’s full consideration of a defendant’s pro se claims

of ineffective assistance of counsel, thereby potentially limiting the issues on appeal. Ayres,

2017 IL 120071, ¶ 13.

¶ 14 Here, we find that during the defendant’s statement in allocution, she made

allegations concerning her trial attorneys that were sufficient to trigger a preliminary

6 Krankel inquiry. The defendant had indicated that she did not believe that her trial attorneys

had done their job and questioned why certain evidence was not admitted in her defense at

trial. The trial court made no inquiry into the factual basis underlying the defendant’s

allegations. Accordingly, we must remand this matter so that the trial court may conduct

the appropriate inquiry into the defendant’s pro se allegations.

¶ 15 Because we are remanding this matter to allow the trial court to conduct the proper

inquiry, we decline to address the defendant’s remaining claims on appeal. See People v.

Bell, 2018 IL App (4th) 151016, ¶ 37. Depending on the result of the preliminary inquiry,

the defendant’s remaining claims may become moot. Bell, 2018 IL App (4th) 151016, ¶ 37.

If the trial court does not grant the defendant a new trial following the proceedings on

remand, the defendant may still appeal to this court based on her posttrial claims of

ineffective assistance of counsel or the other claims raised in this appeal that we have not

addressed. See People v. Alexander, 2020 IL App (3d) 170829, ¶ 35 (citing Krankel, 102

Ill. 2d at 189). We direct appellate counsel to provide copies of their briefs to the trial

attorneys and the trial court on remand. See Bell, 2018 IL App (4th) 151016, ¶ 37.

¶ 16 For the foregoing reasons, we remand this matter to the trial court with directions

that the court conduct a preliminary Krankel inquiry into the defendant’s pro se posttrial

allegations of ineffective assistance of counsel.

¶ 17 Remanded with directions.