People v. Horman

2021 IL App (3d) 190382-U

• Court: Appellate Court of Illinois
• Decided: February 19, 2021
• Docket: 3-19-0382
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2021 IL App (3d) 190382-U

Order filed February 19, 2021 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 13th Judicial Circuit, ) La Salle County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-19-0382 v. ) Circuit No. 15-CF-149 ) WILLIAM B. HORMAN, ) ) Honorable Howard C. Ryan Jr., Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE SCHMIDT delivered the judgment of the court. Justices Holdridge and O’Brien concurred in the judgment.

ORDER

¶1 Held: The circuit court conducted an adequate preliminary Krankel inquiry, and defendant failed to show possible neglect of the case.

¶2 Defendant, William B. Horman, appeals the denial of his posttrial pro se claims of

ineffective assistance of counsel following a preliminary Krankel inquiry. Specifically, defendant

argues that the La Salle County circuit court’s inquiry was inadequate. We affirm.

¶3 I. BACKGROUND ¶4 Defendant was charged with first degree murder (720 ILCS 5/9-1(a)(1) (West 2014)) and

concealment of a homicidal death (id. § 9-3.4(a)). La Salle County Public Defender Timothy

Cappellini and his assistant, Douglas Kramarsic, represented defendant at the trial. The jury found

defendant guilty of both first degree murder and concealment of a homicidal death. The court

imposed consecutive sentences of 35 years’ imprisonment for first degree murder and 5 years’

imprisonment for concealment of a homicidal death.

¶5 After trial but before sentencing, defendant wrote several letters to the court. The first letter

was filed March 11, 2016. In the letter, defendant stated that his public defender purposefully failed

to ask questions to unspecified witnesses and that an actual conflict of interest existed. Defendant

alleged that his attorneys did not request fingerprints from a bucket or oil containers, and they did

not test his hair or nails for mood-altering drugs. He also stated that his counsel provided

ineffective assistance by failing to present expert testimony concerning footprints, hair, and DNA

evidence discovered at the crime scene. Defendant claimed that his codefendant’s first videotaped

interview should have been played at trial to show how he was coerced by the police. He also

alleged that his attorneys did not want to file a motion for forensic testing.

¶6 On March 16, 2016, defendant filed another letter. Defendant stated that his attorneys failed

to present expert testimony concerning footprints, hair, and DNA evidence discovered at the crime

scene. Defendant alleged that unspecified defense witnesses were not called at trial, his first

videotaped interview did not start at the beginning, and a video was not played in front of the jury.

He further complained that his attorneys did not have phones, buckets, oil containers, and

aluminum foil tested for fingerprints. Defendant alleged that his attorneys never asked critical

questions to expert witnesses and State witnesses, giving the following examples: failure to

question officers about discarding his coffee cup that his contained is DNA, and failure to fully

-2- interrogate John Jeffries, Sam Dewire, and Ray Blasum. His attorneys also failed to impeach

witnesses.

¶7 On March 21, 2016, defendant filed two more letters alleging that his attorneys “pretended”

to help him but failed to question unspecified people, test for fingerprints, or check his medical

history concerning his limited weight restrictions. His lawyers lied to him and treated him like a

criminal rather than a client. On March 31, 2016, defendant sent yet another letter complaining of

his attorney’s shortcomings.

¶8 On March 31, 2016, defendant filed a letter stating that there was “a lot of evidence” that

his attorneys did not investigate. Defendant also alleged that his attorneys failed to ask questions

necessary to “clear” defendant.

¶9 After sentencing but before the notice of appeal was filed, defendant filed another letter on

May 4, 2016. He stated that his appointed attorneys were not helping him, did not explain things

to him, and were very incompetent. His attorneys did not explain his right of allocution to him

prior to the sentencing hearing. He told his counsel to ask witnesses, like Dewire, more questions,

and counsel told him to be quiet. He also wanted his attorneys to ask questions about coffee and

why the beginning of the recorded interview was cut. He wanted counsel to ask Debbie about how

he was getting along with the victim in the days leading up to the victim’s death. Donnie Thompson

should have been called as a witness because “he knew what hidden secrets of Grumpy (Tim

Carver) where [sic] told by victim several weeks pryor [sic] to this heinous crime.” Most of the

witnesses at trial were not credible. His counsel never filed a motion in limine or requested

evidentiary hearings. Counsel failed to call favorable witnesses or show videos of his

codefendant’s police interview that would show coercion. Defendant also alleged that his attorneys

sometimes gave the State information to use against defendant.

-3- ¶ 10 The circuit court did not address the claims of ineffective assistance of counsel in

defendant’s letters.

¶ 11 On appeal, we affirmed the judgment of the circuit court but remanded the matter for a

preliminary Krankel inquiry into the posttrial claims of ineffective assistance of counsel that

defendant raised in his letters. People v. Horman, 2018 IL App (3d) 160423, ¶ 33.

¶ 12 After our mandate issued, a status hearing was held on June 6, 2019. Defendant asked if he

could put some things on the record, and the court allowed him to do so. Defendant discussed an

affidavit from Cody Smith, various items and evidence that defendant wanted turned over to him,

and several claims of ineffective assistance of trial counsel. Defendant said his counsel was

ineffective for failing to: play his codefendant’s three videos to show that the codefendant had

been coerced, “get blood, hair and nails from all the drugs tested,” investigate defendant’s alibi,

ask Dewire and Jeffries the questions defendant told them to ask, and question witnesses who were

favorable to defendant.

¶ 13 On July 3, 2019, the circuit court conducted a preliminary Krankel inquiry. The court stated

that the letters that were the subject of the inquiry were filed on March 11 and 16, 2016. The court

noted that defendant had discussed additional allegations and complaints at the last hearing, and

defendant said he had more complaints that day. The court told him to talk about those complaints.

The court told defendant to talk about his letters as well.

¶ 14 Defendant stated that he needed certain videos to show his whereabouts on April 15 and

16, 2015, including surveillance footage from a gas station. Defendant talked about a gun that

Dewire had sold to the victim. His trial attorneys failed to ask Dewire why the victim would need

a gun. Defendant asked what happened to a note from “Grumpy” that was on Jeffries’s windshield.

-4- Defendant said that he needed transcripts from the proceedings in the circuit court and the appellate

court. He insisted that the trial evidence was insufficient to convict him.

¶ 15 The circuit court noted that the appellate court had ordered it to conduct a preliminary

Krankel inquiry. The court stated that two letters were sent prior to sentencing. The court said one

letter was filed March 11, 2016, and the other was filed March 16, 2016. The court asked

defendant’s trial attorneys, Cappellini and Kramarsic, if they had gotten a chance to review those

two letters. Cappellini said he had reviewed them. Kramarsic said he did not recall the specific

dates, but he believed that he reviewed every correspondence.

¶ 16 The court asked Cappellini and Kramarsic to respond to the allegations in defendant’s

letters. The following exchange occurred:

“MR. CAPPELLINI: I don’t quite understand exactly what the

complaints are. We preserved all those issues. We looked at and interviewed

and talked to people that were possible witnesses. As I said before nothing

bore out that would be helpful to us. As far as the motion to suppress we

heard that. We preserved that for appeal so all these issues were addressed

so I don’t understand exactly what the complaint is.

THE COURT: Apparently there seems to be in one of the letters

something about a request for fingerprints on bucket or container and

tests—

MR. CAPPELLINI: The problem is there wasn’t any physical

evidence directly connecting our client or anyone else to this crime other

than the blood that was found basically at the crime scene.

-5- THE COURT: There’s also an allegation failure to present expert

testimony concerning footprints, hair and DNA.

MR. CAPPELLINI: There wasn’t anything to present.

THE COURT: I’m just reading from the letter.

MR. CAPPELLINI: I understand.

THE COURT: The co-defendant’s first video played at trial. He’s

complaining that apparently it looks to me like he’s saying it should have

been played, the co-defendant, because this case rose and fell on this

person’s testimony.

MR. CAPPELLINI: I understand that, but that wouldn’t have been

proper.

THE COURT: I just need your response to it, counselor. That’s fine.

Then the March 16th there seems to be once again he talks about foot prints

[sic], hair, DNA evidence. There were witnesses. Apparently they’re

alleging some witnesses for the defense were never called at trial.

MR. CAPPELLINI: There weren’t any witnesses that would have

helped us. We went through this many times.

[DEFENDANT]: Can I say something?

THE COURT: Nope. Let’s see. Once again he talks about in that

March 16th co-defendant’s first video never played in court, coached and

coerced him in to speaking. There’s an allegation the Public Defender never

asked critical or crucial questions of expert witnesses and witnesses for the

State. Mr. Cappellini.

-6- MR. CAPPELLINI: We did everything we could. We asked every

question that was possible, and we did point out many times to the jury that

the co-defendant and what his situation was, what his deal was and even

had *** the instruction given, but there was nothing else that we could have

asked that would have mattered.

THE COURT: There seems to be also some complaints about Mr.

Jefferies was never asked about some note left by Grumpy or asked about.

MR. CAPPELLINI: That’s because our investigation that just didn’t

pan out to be material.

THE COURT: The last one appears to be my counsel—asked my

counsel to discredit or impeach witnesses that they make up lies that are not

credible.

MR. CAPPELLINI: We did what we could to impeach every

witness.

THE COURT: Mr. Kramarsic, you were present when I asked those

questions of Mr. Cappellini. Do you have anything different?

MR. KRAMARSIC: I would agree with everything Mr. Cappellini

said without question, and I would also add the fact that this note or

whatever it was it didn’t pan out. His stories were so—he changed his

stories so many times, and there was an issue with a young gentleman from

Chicago with bringing [the victim’s] vehicle to him which completely

contradicted or this note that he’s talking about so that’s another reason that

did not advance our defense whatsoever, judge. The witnesses that we did

-7- speak to again had nothing to add that would have as far as time line or his

whereabouts had nothing that would have helped us whatsoever.”

¶ 17 The court then permitted defendant to respond. Defendant said that his attorneys were

lying. He had someone contact people while he was in jail, and his attorneys never spoke with the

witnesses. His attorneys never investigated the case like they were supposed to. The court asked

Cappellini about defendant’s allegations that he had not spoken to witnesses; Cappellini said that

he did not know which witness defendant was referring to or what defendant was talking about.

¶ 18 Defendant stated that his attorneys should have “located the ping locations” on certain

phone calls. Defendant then began discussing an affidavit from Smith and said that his counsel did

not investigate. In response, Cappellini said that Smith was charged with a sex offense and a

murder for hire in the jail. Cappellini did not know what Smith had to do with defendant’s case.

Defendant said that his codefendant made certain admissions to Smith, and defendant learned

about this in prison. The court said that this matter was not what they were in court for that day.

The court stated:

“After doing a preliminary investigation in this particular matter on the

second phase I still don’t have a color yet. They’re somewhat the same as

what was raised before, and explanations have been given which were

agreed with, not agreed with, but does it rise to the level of ineffective, no,

not that I can find with a preliminary look so I’m not going to say it’s

ineffective. I’m not going to appoint counsel so the previous orders and

rulings will all stand.”

¶ 19 II. ANALYSIS

-8- ¶ 20 Defendant argues that the circuit court’s preliminary Krankel inquiry was inadequate

because the court failed to inquire into some of the claims raised in his letters, the court failed to

ascertain the factual basis for some of the claims it did inquire into, and the court appeared to apply

the incorrect standard. We find that the court conducted an adequate inquiry and that defendant

failed to show possible neglect of the case.

¶ 21 Under the common law procedure developed from People v. Krankel, 102 Ill. 2d 181

(1984) and its progeny, when a defendant raises a pro se posttrial claim of ineffective assistance

of counsel, the circuit court is to examine the factual basis of the claim. People v. Jolly, 2014 IL

117142, ¶ 29. If the circuit court determines that a defendant’s pro se claim lacks merit or only

pertains to matters of trial strategy, the court may deny the pro se motion without appointing

counsel. People v. Ayres, 2017 IL 120071, ¶ 11. However, if the defendant’s allegations show

possible neglect of the case, the circuit court should appoint new counsel to represent the defendant

in advancing his or her claims. Id.

¶ 22 During a preliminary Krankel inquiry, “ ‘[t]he law requires the trial court to conduct some

type of inquiry into the underlying factual basis, if any, of a defendant’s pro se posttrial claim of

ineffective assistance of counsel.’ ” Id. (quoting People v. Moore, 207 Ill. 2d 68, 79 (2003)). The

circuit court must conduct an “ ‘inquiry sufficient to determine the factual basis of the claim.’ ” Id.

(quoting People v. Banks, 237 Ill. 2d 154, 213 (2010)). “The purpose of the preliminary inquiry is

to ascertain the underlying factual basis for the ineffective assistance claim and to afford a

defendant an opportunity to explain and support his claim.” Id. ¶ 24.

¶ 23 “During this evaluation, some interchange between the trial court and trial counsel

regarding the facts and circumstances surrounding the allegedly ineffective representation is

permissible and usually necessary in assessing what further action, if any, is warranted on a

-9- defendant’s claim.” Moore, 207 Ill. 2d at 78. “[T]he trial court may inquire with trial counsel about

the facts and circumstances surrounding the defendant’s allegations. [Citation.] The court may also

briefly discuss the allegations with defendant.” Jolly, 2014 IL 117142, ¶ 30. The court is also

permitted to base its evaluation the defendant’s claims on its knowledge of counsel’s performance

during trial. Id. “The issue of whether the circuit court properly conducted a preliminary Krankel

inquiry presents a legal question that we review de novo.” Id. ¶ 28.

¶ 24 Here, the circuit court conducted an adequate preliminary Krankel inquiry. The court

inquired into the factual basis of defendant’s claims and afforded defendant ample “opportunity to

explain and support his claim[s].” Ayres, 2017 IL 120071, ¶ 24. At the outset of the hearing, the

court asked defendant to talk about his letters and any other allegations he wanted to bring to the

court’s attention. The court also went through the claims in two of defendant’s letters and asked

defendant’s attorneys to respond. The court then gave defendant an opportunity to respond to his

attorneys’ statements. While the court only discussed two of the six letters defendant had filed and

failed to ask questions concerning some of the claims raised in the letters, the court gave defendant

the opportunity to bring up any additional claims he wanted it to address. Defendant failed to

mention the additional letters or discuss many of the claims raised in his letters. While the circuit

court was permitted to ask defendant more questions concerning his claims during the preliminary

Krankel inquiry (see Jolly, 2014 IL 117142, ¶ 30), it was not the court’s burden to pry the specifics

of defendant’s claims out of him at the inquiry.

¶ 25 We acknowledge that the circuit court’s finding that defendant’s allegations did not “rise

to the level of ineffective [assistance]” indicated that it may have applied the Strickland standard

for ineffective assistance claims rather than the less-stringent possible neglect standard, which

applies at a preliminary Krankel inquiry. See Ayres, 2017 IL 120071, ¶ 11. However, we review

- 10 - the circuit court’s judgment, not its reasoning, and we may affirm on any basis supported by the

record. People v. Ringland, 2015 IL App (3d) 130523, ¶ 33.

¶ 26 Here, the record shows that defendant failed to satisfy even the possible neglect standard.

Defendant failed to provide adequate detail, either in his letters or at the preliminary inquiry,

regarding which witnesses he believed his counsel should have called, what the testimony of these

witnesses would have been, and what additional questions his attorneys should have asked to

discredit State witnesses on cross-examination. Also, these were matters of trial strategy, which

are generally immune from claims of ineffective assistance. See People v. Wilborn, 2011 IL App

(1st) 092802, ¶ 79 (“Decisions concerning which witnesses to call at trial and what evidence to

present on defendant’s behalf ultimately rest with trial counsel. [Citations.] It is well established

that these types of decisions are considered matters of trial strategy and are generally immune from

claims of ineffective assistance of counsel.”).

¶ 27 The statements of defendant’s trial attorneys at the preliminary Krankel inquiry indicated

that the actions and omissions challenged by defendant were a result of trial strategy and that

defendant’s claims lacked merit. Defendant’s trial attorneys indicated that they talked to possible

witnesses and that their testimony would not have been helpful to defendant’s case. In response to

defendant’s claims that his attorneys failed to have various items tested for fingerprints and failed

to present expert testimony concerning fingerprints, hair, or DNA, Cappellini indicated that no

such evidence could have been presented. Cappellini stated that it would not have been proper to

play the codefendant’s videorecorded interview at trial. Cappellini said that they asked the

witnesses all the questions they could and did what they could to impeach each State witness.

Cappellini said there was nothing else they could have asked that would have mattered. Cappellini

- 11 - and Kramarsic indicated that they investigated a note from “Grumpy,” but it did not pan out to be

material.

¶ 28 While defendant correctly notes that some of the claims he raised in his letters were not

explicitly addressed at the preliminary Krankel inquiry, most of these claims were vague and

conclusory. For example, defendant generically claimed that his trial counsel had a conflict of

interest, failed to investigate “a lot of evidence,” lied to him, failed to question Debbie, failed to

question Thompson about unspecified “hidden secrets” of Carver, and failed to advise him in

advance of his right to allocution. Defendant had an opportunity to provide more detail concerning

these claims at the preliminary inquiry, but he failed to do so. Accordingly, defendant failed to

show possible neglect with regard to these claims. See People v. McLaurin, 2012 IL App (1st)

102943, ¶ 40 (“A claim lacks merit if it is conclusory, misleading, or legally immaterial or does

not bring to the trial court’s attention a colorable claim of ineffective assistance of counsel.”).

¶ 29 In his letters, defendant alleged more specifically that his trial attorneys failed to question

Dewire about defendant’s relationship with the victim, question Jeffries about purchasing the

victim’s belongings from the scene, and failed to present medical evidence concerning defendant’s

back problems and lifting restrictions. However, these claims also pertained to matters of trial

strategy. See Wilborn, 2011 IL App (1st) 092802, ¶ 79. Thus, defendant failed to show possible

neglect with regard to these claims. See Ayres, 2017 IL 120071, ¶ 11.

¶ 30 III. CONCLUSION

¶ 31 For the foregoing reasons, we affirm the judgment of the circuit court of La Salle County.

¶ 32 Affirmed.

- 12 -