People v. Jenkins

2020 IL App (4th) 170611-U

• Court: Appellate Court of Illinois
• Decided: January 28, 2020
• Docket: 4-17-0611
• Status: Unpublished

Opinion

NOTICE 2020 IL App (4th) 170611-U FILED This order was filed under Supreme April 29, 2020 Court Rule 23 and may not be cited NO. 4-17-0611 Carla Bender as precedent by any party except in 4th District Appellate the limited circumstances allowed IN THE APPELLATE COURT Court, IL 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. ) Macon County TYREE D. JENKINS, ) No. 16CF1501 Defendant-Appellant. ) ) Honorable ) Phoebe S. Bowers, ) Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court. Presiding Justice Steigmann and Justice Knecht concurred in the judgment.

ORDER ¶1 Held: The trial court erred in failing to appoint separate counsel after conducting a Krankel hearing.

¶2 In October 2016, the State charged defendant, Tyree D. Jenkins, with aggravated

domestic battery causing great bodily harm, domestic battery with a prior domestic battery

conviction alleging bodily harm, and domestic battery with a prior domestic battery conviction

for making physical contact of an insulting or provoking nature. Prior to trial, defense counsel

notified the court of a waivable per se conflict between defense counsel and defendant based on

counsel’s prior representation of the victim. After being admonished by the trial court, defendant

waived the conflict. In April 2017, a jury found defendant guilty of aggravated domestic battery

and domestic battery with a prior domestic battery conviction.

¶3 In June 2017, prior to sentencing, defendant raised, pro se, an issue of ineffective

assistance of counsel. After some preliminary questioning of defendant, the trial court asked that he put his claims in writing. Defendant agreed, and the matter was continued for that purpose. At

the next hearing, the court questioned defendant about each of the individual claims he raised in

his written motion, characterizing it as a pre-inquiry hearing pursuant to People v. Krankel, 102

Ill. 2d 181, 464 N.E.2d 1045 (1984). During the hearing, defendant informed the court defense

counsel failed to use evidence, call witnesses he provided, and listen to his suggestions regarding

trial strategy. Furthermore, defendant alleged counsel improperly commented on previously

excluded evidence prejudicial to defendant in his opening statement and failed to secure

evidence available from the police department and defendant’s telephone records, which would

have supported his defense. He also claimed he waived any potential per se conflict with his

attorney because his defense counsel suggested he should and he did not want to “be stuck sitting

in Macon County jail another four or five months before going to trial.” The court then inquired

of defense counsel regarding each of the allegations raised and commented upon its own

recollection regarding the hearing during which the conflict of interest issue was raised. After a

lengthy evidentiary hearing where the court questioned both defendant and his counsel, the court

concluded the matters raised “deal with [defense counsel’s] trial strategy” and denied

defendant’s claim of ineffective assistance of counsel.

¶4 Defendant’s posttrial motion raised three issues: (1) the State failed to prove him

guilty beyond a reasonable doubt; (2) the trial court erred by allowing the State to submit the

original charging information to the jury as part of the propensity evidence it was allowed to

present, the prejudicial effect of which far outweighed its probative value; and (3) the court erred

in allowing a State’s witness to testify about previous Illinois Department of Children and

Family Services (DCFS) involvement to restrict defendant’s contact with the victim, in violation

of a defense motion in limine previously granted by the court. After hearing the arguments of

-2- counsel, the court denied the motion and the matter proceeded immediately to sentencing.

Defendant, although convicted of a Class 2 aggravated domestic battery and a Class 4 domestic

battery, was subject to Class X sentencing due to prior Class 2 or greater felony convictions. The

State suggested a sentence in excess of 18 years, while defendant’s counsel argued for a sentence

of 6 or 7 years. The court sentenced defendant to a term of 12 years in the Department of

Corrections with 4 years’ mandatory supervised release (MSR) on the aggravated domestic

battery conviction and 3 years in the Department of Corrections on the domestic battery with a

prior conviction with 4 years’ MSR, to be served concurrently. This appeal follows.

¶5 On appeal, defendant argues the trial court erred by: (1) allowing the State to

introduce charging documents of defendant’s prior convictions as propensity evidence,

(2) failing to appoint replacement counsel on his postplea complaint about trial counsel’s

performance pursuant to Krankel, (3) entering convictions for aggravated battery and domestic

battery in violation of the one-act, one-crime rule, and (4) not allowing defendant to rescind a

per se conflict of interest waiver with his attorney after trial. We reverse and remand for further

proceedings consistent with this order.

¶6 I. BACKGROUND

¶7 In October 2016, the State charged defendant with one count each of aggravated

domestic battery (count I) (720 ILCS 5/12-3.3(a) (West 2014)), domestic battery with a prior

domestic battery conviction alleging bodily harm (count II) (720 ILCS 5/12-3.2(a)(1) (West

2014)), and domestic battery with a prior domestic battery conviction with physical contact of an

insulting or provoking nature (count III) (720 ILCS 5/12-3.2(a)(2) (West 2014)). Count II was

dismissed before trial. The victim was the same in all three counts.

-3- ¶8 In January 2017, the trial court conducted a hearing on the State’s first motion

in limine seeking to present evidence of defendant’s propensity to commit domestic violence

pursuant to section 115-7.4 (725 ILCS 5/115-7.4 (West 2016)). The State sought to introduce

defendant’s prior convictions, which included Macon County case No. 15-CF-877, a 2015

conviction for unlawful restraint, Macon County case No. 12-CF-219, a 2012 conviction for

domestic battery with a prior domestic battery, and Macon County case No. 08-CF-1018, a 2008

conviction for aggravated battery. During the hearing, defendant objected to the admission of

these prior convictions and claimed allowing the introduction of all three incidents into evidence

would be unduly prejudicial. The State argued the introduction of the propensity evidence via

certified copies of conviction, in lieu of live witness testimony about prior domestic violence

incidents, would limit any undue prejudice. After analyzing the propensity factors under section

115-7.4, the court determined any undue prejudice was outweighed by the probative value and

granted the State’s motion, approving the use of the certified copies of conviction.

¶9 Later that same month, the trial court heard arguments on the State’s second

motion in limine requesting to supplement its propensity evidence. Two of the previous

convictions (unlawful restraint and aggravated battery) were not identified in the certified copies

of conviction as offenses specifically related to domestic violence. The State suggested the court

read the charging document for each conviction, which contained language either identifying the

domestic relationship between the defendant and the victim (No. 12-CF-219) or identifying the

victim as the same person in this case (No. 15-CF-877). Defendant’s position regarding the use

of the charging documents was as follows:

“Judge, in light of the court’s ruling initially on this matter, just

show our objection to that. I am not going to have any argument

-4- with regard to that particular issue at this time. The court has ruled

on the right of the State to bring those convictions out for a limited

purpose. So[,] we would have no [sic]—nothing else to say.”

The trial court ruled the State could present evidence of defendant’s propensity to commit

domestic violence by reading the information contained in the certified copy of the 2015

unlawful restraint and 2012 domestic battery convictions. The court also indicated it had

reconsidered its previous ruling allowing the use of the 2008 conviction, concluded it was too

remote in time to be admissible as propensity evidence, and declined to permit it. The court also

addressed the State’s third in limine motion seeking to elicit testimony from a DCFS investigator

regarding her reasons for investigating the victim’s residence, which led to the charges in this

case. Specifically, the State sought to have the investigator testify that she responded to an

anonymous call indicating defendant was at the victim’s residence because she was aware

defendant was not supposed to be at the residence due to a previous domestic violence incident

(which formed the basis for Macon County case No. 15-CF-877). Defendant objected, arguing,

“[t]he fact that the State is going to be allowed to introduce the prior convictions and naming the

defendant I think should be sufficient.” The trial court agreed and denied the State’s motion,

acknowledging that although the DCFS worker could testify about what she observed when she

arrived at the victim’s residence, “I am not going to allow you to get into that she received

anonymous phone calls or that she was concerned about a prior domestic violence incident.”

¶ 10 In April 2017, immediately before proceeding with jury selection, it was brought

to the trial court’s attention a potential conflict of interest may exist between defense counsel and

the victim in this case. Defense counsel, for the first time, indicated he represented the victim in

a previous matter. He believed his previous representation resulted in a per se conflict but that it

-5- could be waived by defendant. The State contended there was insufficient evidence before the

court to determine whether the conflict could be waived. Through the court’s inquiry, defense

counsel testified he previously represented the victim in a 2013 Macon County criminal case but

could not recall any specifics regarding the prior representation. He “vaguely” remembered the

case and was only aware of what happened by reviewing the court docket. From that review, he

was aware the victim’s case was resolved in April 2014, and, since that time, he has had no

contact with her. He (incorrectly) believed he represented defendant before, and he also believed

his prior representation of the victim would not conflict with his ability to fully represent

defendant. The court gave defendant the opportunity to ask defense counsel any questions about

the potential conflict of interest; however, defendant declined.

¶ 11 The trial court admonished defendant as follows:

“THE COURT: [Defense counsel] has represented [the victim] in

the past. *** [Defense counsel] just testified that he no longer

represents [the victim] and that case was resolved in April of 2014,

so approximately three years ago. [Defense counsel] [is] not

contemporaneously representing you and [the victim]; however,

you do need to be aware that he represented her in the past and ***

may conflict with your interest, and thus impair his ability to

perform as your attorney. Now, he just testified that he does not

remember [the victim] and has had no contact with her, to his

knowledge, since April of 2014. But just so you are aware, the

potential—an example of a potential problem in a case like this

would be maybe he wouldn’t cross examine her to the same extent

-6- or with the same thoroughness that he would normally cross

examine another witness. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: In light of all of this information, and you may want

to take some time to decide this, but do you know whether or not

you want to waive this potential conflict of interest?

THE DEFENDANT: Yes, I do want to waive it.

THE COURT: Okay. Do you knowingly and voluntarily waive any

possible conflict of interest [defense counsel] may have as your

attorney in this case?

THE DEFENDANT: Yes.”

Following this exchange, the court found defendant waived the potential conflict of interest on

the record and accepted the waiver. The matter then proceeded to a jury trial.

¶ 12 At the close of the State’s evidence, the State introduced the certified copies of

conviction and charging documents from the 2012 and 2015 convictions as exhibit Nos. 3 and 4.

The State had previously suggested the trial court inform the jury defendant was convicted of

those two offenses and then read the charging information for both offenses. Defense counsel

voiced no objection to this procedure. The court admitted this evidence and indicated the exhibits

would not be sent back to the jury.

¶ 13 The jury subsequently returned verdicts of guilty for both aggravated domestic

battery and domestic battery with a prior domestic battery conviction, and the matter was set for

sentencing on June 1, 2017.

-7- ¶ 14 In May 2017, defense counsel filed a motion to continue the sentencing based, in

part, upon his belief the court should conduct at least a preliminary inquiry under Krankel due to

defendant’s comments at their last meeting in preparation for sentencing. Counsel claimed

defendant “told [counsel] to leave and that he did not want to meet with him again concerning

the sentencing or any matter regarding this case.” As a result, counsel did not believe he was

adequately prepared for the sentencing hearing and believed the court should inquire further of

defendant. The trial court asked defendant, “[a]re you in effect making a claim that [counsel] was

ineffective when he was representing you?” Defendant said he asked defense counsel to do

things before the trial, which defense counsel allegedly did not do, and when he confronted

counsel about it, counsel began cursing at him, so defendant told counsel he did not need to

come back to see defendant anymore. The court then suggested perhaps the best way to proceed

was to allow defendant time to reduce his claims to writing so the court and counsel could

review all of his arguments on why defendant believed his counsel was ineffective, and the court

could then evaluate the merit of each claim. The defendant agreed, and the court then indicated it

was continuing the matter “for a Krankel hearing.”

¶ 15 Several weeks later, in June 2017, after having received defendant’s written

claims, the trial court called the matter for what it characterized as a “pre-inquiry under People

versus Krankel.” The court informed defendant it had read his claim and was providing

defendant with an opportunity to more fully explain his allegations. Defendant stated defense

counsel did not represent him in a proper manner during trial, defense counsel refused to present

a social media video which defendant believed was relevant to his defense, and defense counsel

did not put certain witnesses on the stand. Defendant also told the court he waived the potential

conflict with his attorney because he did not want to “be stuck sitting in Macon County jail

-8- another four or five months before going to trial.” The court directed defendant to address each

allegation contained in the list of claims and provided defendant an opportunity to explain in

detail why he thought defense counsel was ineffective. As defendant addressed his claims, the

court from time to time interjected questions regarding the merits of those claims. The court

asked defendant to relate specific conversations with counsel, explain the relevance of certain

information, elaborate on evidence or witnesses defendant wanted counsel to present at trial, and

then turned to defense counsel for a response before proceeding to the next issue. Although

defendant’s claims were lengthy and quite detailed, we will outline only a few here in order to

provide sufficient background for the analysis to follow.

¶ 16 Defendant complained about the fact counsel elected to present information in his

opening statement which had been expressly excluded by the court. The State’s third motion

in limine sought to elicit testimony from DCFS worker Ali Collins to explain why she went to

the victim’s home after receiving information defendant was present. The State sought to bring

out the existence of defendant’s previous domestic incident involving the same victim and

DCFS’s involvement, which emanated from the incident. Defendant’s counsel objected, and after

a full hearing, the court sustained the objection and excluded the requested information.

Defendant pointed out, during his opening statement, counsel mentioned the previously excluded

information, including prior reports of domestic violence at the residence, resulting in a sidebar

conference at the State’s request. Defendant contended counsel never explained what occurred at

sidebar even after his inquiry and did not explain why he decided to mention the same

information to which counsel had objected and argued successfully to exclude at a previous

hearing. The court then turned to counsel for his response and counsel noted (albeit incorrectly),

“we had filed a motion in limine with regard to certain statements I think Ali Collins had made,

-9- arguments, and that was indeed, I think restricted.” He then went on to explain, “in our theory of

the case, it was an important element that DCFS was involved in the case,” and that DCFS’s

threat to remove the victim’s children was why she changed her version of how her injuries

occurred from a fight with three girls to a fight with defendant.

¶ 17 The trial court then directed defendant to the next allegation in his list, which

related to the conflict of interest counsel raised on the day of trial immediately before jury

selection was to begin. According to defendant, counsel had been aware of this for months;

however, he kept telling defendant it was the State who was voicing some concern or objection

to his continued representation of defendant. Defendant indicated on the day of trial, his attorney

brought this to the court’s attention and the prosecutor “clearly stated, she didn’t have a problem

with—or she never mentioned anything about, um, the conflict of interest.” According to

defendant, “right before that when he had—before we had the hearing, he just told me to waive

it.” Defendant expressed his dissatisfaction with what he perceived as counsel’s attitude about

his case and said when he waived the conflict, “I waived it because I was under the impression—

he did tell me if I waived, it could be another four or five months before I could get in trial

again.” The court did not seek counsel’s response at that time, but instead, it began asking

defendant about the court’s inquiry of defendant at the hearing on the waiver, asking defendant

to confirm whether the court’s representations were correct.

¶ 18 The inquiry then turned to the existence of a video, which defendant contended

had been available for some time, “depicting me and the victim—it was showing me and the

victim at the hospital and two girls at the hospital sitting somewhere recording both of us. And

they were openly talking about what they had did [sic] to this victim.” The court then permitted

counsel to respond to both the conflict and video issues. Counsel acknowledged previous

- 10 - conversations about the conflict with defendant, characterizing it as a “potential conflict.” He did

not recall telling defendant, “it’s gonna be two or three months if you don’t waive it,” calling that

a “non-issue” at the time. Counsel said he and his investigator viewed the video, contended they

could not “properly lay a foundation for the video,” and that it “didn’t lend anything to complete

our theory of the case.”

¶ 19 Defendant’s concerns extended to specific questions asked or areas of inquiry he

had asked counsel to pursue, such as the “theory” of the case, witnesses to be called, and

telephone records or text messages to be obtained. In each instance, the trial court asked

defendant to explain his objections in detail and then sought counsel’s response. Frequently,

when given the opportunity, defendant disagreed with some of the factual assertions of counsel,

and they disagreed over whether certain issues had, in fact, been brought to counsel’s attention.

After hearing defendant’s claims and defense counsel’s responses the court stated:

“There are many statements made in the written motion, as well as

here in court today. All of the statements that I have heard and that

I have read deal with [defense counsel’s] trial strategy. He talks

about the theory of the case. And many times in his responses, his

decision whether to make objections or have certain witnesses

testify or bring certain evidence in to—to the jury, [sic] there are

questions of trial strategy, which is why you have a lawyer

appointed for you, or hire a lawyer.”

The court then stated, “I’m going to deny the claim of [sic] [defendant’s] claim of ineffective

assistance of counsel.

- 11 - In July 2017, the trial court heard defendant’s motion for a new trial or for

judgment notwithstanding the verdict in advance of sentencing. In his posttrial motion, defendant

argued the State failed to prove him guilty beyond a reasonable doubt, the court erred in allowing

the reading of the informations as part of the presentation of propensity evidence, and the court

erred by allowing the DCFS worker to testify about previous DCFS involvement restricting

defendant’s contact with the victim. The court denied the motion and the matter proceeded to

sentencing.

¶ 20 At the sentencing hearing, the State offered a series of “sworn statements,”

apparently from police reports relating to other incidents of domestic violence, some charged but

resulting in no convictions, others where no charges were filed. Defendant objected to all of

them, and the trial court ultimately refused to consider three. A written victim impact statement

was also provided to the court, as well as photographs admitted at trial showing the injuries

suffered by the victim. Defendant called his mother, father, sister, and friend to testify on his

behalf. At the close of the evidence, the State recommended a sentence in excess of 18 years,

defendant argued for 6 to 7 years, and the court sentenced defendant to 12 years on the

aggravated domestic battery conviction (sentenced under Class X sentencing pursuant to 730

ILCS 5/5-4.5-95(b) (West 2016)) and 3 years for the domestic battery with a prior domestic

battery conviction.

¶ 21 In August 2017, defendant asked the trial court to reconsider its sentence,

contending the court abused its discretion by sentencing him to an excessive term of years.

Defendant contended his sentence was enhanced because of his prior convictions and the fact

that he must serve 85% of any sentence imposed, and therefore 12 years was excessive.

Defendant also asked the court to consider the credibility of the witnesses and the facts of the

- 12 - case in imposing a lesser sentence. The State noted his prior criminal history, his history with

this victim, and the serious nature of the injuries inflicted. The trial court denied defendant’s

motion.

¶ 22 This appeal followed.

¶ 23 II. ANALYSIS

¶ 24 A. Krankel Hearing

¶ 25 Defendant argues the trial court erred in failing to conduct a proper preliminary

Krankel inquiry and appoint replacement counsel in response to his complaints about defense

counsel’s performance. We agree.

¶ 26 “The 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.” People v. Moore, 207 Ill. 2d 68, 79, 797 N.E.2d 631, 638 (2003) “[A] pro se defendant

is not required to do any more than bring his or her claim to the trial court’s attention ***.”

Moore, 207 Ill. 2d at 79. In People v. Ayres, 2017 IL 120071, ¶ 18, 88 N.E.3d 732 , our supreme

court found a defendant’s “clear claim asserting ineffective assistance of counsel, either orally or

in writing, *** is sufficient to trigger the trial court’s duty to conduct a Krankel inquiry.” See

also People v. Thomas, 2017 IL App (4th) 150815, ¶ 26, 93 N.E.3d 664 (noting “[c]ourts have

found a defendant is entitled to a Krankel inquiry when the defendant makes an explicit or ‘clear’

complaint of trial counsel’s performance or ineffective assistance of counsel”). This does not

mean, however, the defendant must provide all the underlying facts upon which his pro se claim

is based. Citing Ayres, our supreme court in People v. Bates, 2019 IL 124143, ¶ 15, found “a

pro se defendant need not provide the underlying factual basis for his claim so long as he alleges

that he has received ‘ineffective assistance of counsel.’ ” If defendant raises the issue of

- 13 - ineffective assistance of counsel, the trial court must conduct an “inquiry sufficient to determine

the factual basis of the claim.” People v. Banks, 237 Ill. 2d 154, 213, 934 N.E.2d 435, 468

(2010). Three factors to consider when deciding whether the Krankel inquiry was sufficient

include “(1) whether there was some interchange between the trial court and defense counsel

regarding the facts and circumstances surrounding the allegedly ineffective representation,

(2) the sufficiency of defendant’s pro se allegations of ineffective assistance, and (3) the trial

court’s knowledge of defense counsel’s performance at trial and the sufficiency of the

defendant’s allegations on their face.” People v. Schnoor, 2019 IL App (4th) 170571, ¶ 71,

(citing Moore, 207 Ill. 2d at 78-79).

¶ 27 In People v. Jolly, 2014 IL 117142, ¶ 29, 25 N.E.3d 1127 (quoting Moore, 207 Ill.

2d at 77-78), the supreme court, noting new counsel is not automatically appointed when a

defendant asserts pro se claims of ineffective assistance, discussed the steps to be followed:

“ ‘when a defendant presents a pro se posttrial claim of ineffective

assistance of counsel, the trial court should first examine the

factual basis of the defendant’s claim. If the trial 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. However, if the allegations show possible

neglect of the case, new counsel should be appointed.’ ”

“[T]he primary purpose of the preliminary inquiry is to give the defendant an opportunity to

flesh out his claim of ineffective assistance so the court can determine whether appointment of

new counsel is necessary.” Ayres, 2017 IL 120071, ¶ 20.

- 14 - ¶ 28 On appeal, “[t]he operative concern for the reviewing court is whether the trial

court conducted an adequate inquiry into the defendant’s pro se allegations of ineffective

assistance of counsel.” Moore, 207 Ill. 2d at 78. “The issue of whether the circuit court properly

conducted a preliminary Krankel inquiry presents a legal question that we review de novo.

[Citation.] Similarly, we review de novo the legal question of whether harmless error applies to

errors committed during a Krankel proceeding.” Jolly, 2014 IL 117142, ¶ 28.

¶ 29 In this case, defendant’s counsel initially raised “the issue of counsel” and a

request for a “pre-Krankel hearing” as part of a written motion to continue the sentencing

hearing, contending he had attempted to meet with defendant to prepare for sentencing and had

been told by defendant to leave and that defendant did not want to meet with him again. Counsel

suggested the hearing in order to allow defendant the opportunity to explain his reasons for no

longer wanting counsel’s representation.

¶ 30 At the hearing, counsel explained why he thought the hearing was necessary

before proceeding to posttrial motions or sentencing. Upon being informed defendant had not

seen counsel’s motion, the trial court allowed him an unspecified amount of time while the

hearing was ongoing to review it. Upon completion, the court then began to inquire of defendant.

Referencing counsel’s motion, the court asked, “[counsel] stated that you told him to leave and

that he didn’t—that you didn’t want to meet with him anymore; is that correct?” After defendant

acknowledged that to be true, the court then asked, “All right. Are you in effect making a claim

that he was ineffective when he was representing you?” Defendant attempted to explain the last

conversation he had with counsel “about things that I asked him to do before the trial actually

took place which he just did not do.” The court then informed defendant that if he was claiming

ineffective assistance of counsel, he should write out his complaints about counsel, “so that he

- 15 - would have a chance to respond, and I would have to—then I would be able to see this in writing

and we can take each paragraph one by one, and I can decide if your claim is meritorious or

not.” (Emphasis added.) Although the court characterized the later hearing as a “pre-inquiry

under People versus Krankel,” it is the italicized language above which is a preview of things to

come.

¶ 31 Defendant’s submission included 15 pages of complaints and 5 additional pages

of attachments referenced in several of his complaints. Within the letter, defendant alleged his

trial attorney “did a poor job” and then outlined a series of allegations ranging from counsel’s

remarks during opening statements, which included information the court had expressly excluded

as the result of counsel’s successful argument during a pretrial hearing, to his failure to call

witnesses defendant identified as having information relevant either to what he contended was

the actual cause of the victim’s injuries, or circumstances between defendant and the victim

which might have motivated her to lie about him. Defendant also complained about counsel’s

failure to obtain and introduce telephone records for which defendant provided written

authorization; the failure to secure a video which showed defendant, the victim, and two of the

three girls who allegedly were responsible for the victim’s injuries, all at the hospital; and the

failure to object to certain evidence or to ask questions defendant submitted for direct and cross-

examination of certain witnesses.

¶ 32 Defendant made an explicit or clear complaint regarding counsel’s performance

(Cf. Thomas, 2017 IL App (4th) 150815, ¶ 26), which was sufficient to “trigger the trial court’s

duty to conduct a Krankel inquiry.” Ayres, 2017 IL 120071, ¶ 18. Furthermore, due to the

numerous and varied allegations against defense counsel, it was proper for the trial court to

conduct a preliminary inquiry to “flesh out [defendant’s] claim of ineffective assistance so the

- 16 - court can determine whether appointment of new counsel is necessary.” Ayres, 2017 IL 120071,

¶ 20. We previously understood this language to mean the only question to be resolved at this

hearing was whether the trial court should appoint new counsel to represent defendant on his

claims of ineffective assistance. See People v. Roddis, 2018 IL App (4th) 170605, ¶ 47, 119

N.E.3d 52. Our supreme court recently sought to clarify the language in Ayres, as well as that of

People v. Moore, 207 Ill. 2d 68, 797 N.E.2d 631 (2003), People v. Johnson, 159 Ill. 2d 97, 636

N.E.2d 485 (1994) and others, when it reversed this court’s decision in Roddis. See People v.

Roddis, 2020 IL 124352. There, our supreme court concluded trial courts “must be able to

consider the merits in their entirety when determining whether to appoint new counsel on a

pro se posttrial claim of ineffective assistance of counsel.” (Emphasis in original.) Roddis, 2020

IL 124352, ¶ 61. It held that a trial court may consider both the factual and legal merits of a

defendant’s pro se posttrial allegations of ineffective assistance of counsel at the preliminary

inquiry stage. This would effectively do away with the need to describe such hearings as “pre-

Krankel” since the trial court is to analyze both the factual and legal merits of the complaint to

determine whether to appoint counsel.

¶ 33 Here, the trial court proceeded as if it were conducting the full hearing on

defendant’s ineffectiveness claims. The transcript of the hearing extends almost 50 pages. After

having received defendant’s written claims, the court took each one individually, had defendant

explain it in detail, occasionally asking questions or asking defendant to be more specific, and

then allowing counsel the opportunity to respond. At times, the questioning went back and forth

between defendant, counsel, and the trial court. During the hearing, there were a number of

occasions where defendant and counsel disagreed factually as to what transpired. At one point,

defendant made two specific claims about representations by counsel relating to the conflict of

- 17 - interest. First, defendant said counsel told him throughout the pendency of the case that the State

was pushing the issue of a conflict of interest and apparently wanted a hearing on it. On the day

of trial, however, when defendant’s counsel raised it before the court for the first time, the

prosecutor said “she didn’t have a problem with—or she never mentioned anything about, um,

the conflict of interest.” Next, defendant said counsel told him if he did not waive the conflict, “it

could be another four or five months before I could get in trial again.” The following exchange

took place:

“THE COURT: I believe at the time of your waiver, I questioned you—

THE COURT:—whether that was your decision.

THE DEFENDANT: Uh-huh.

THE COURT:—and you in fact said it was your decision. I asked if you

understood that, and you said you did understand it. Is that right.

THE DEFENDANT: I did understand.

THE COURT: So now you’re saying you regret that decision, or—how is

that his fault?”

¶ 34 “A trial court may, in its discretion, question witnesses to elicit the truth or clarify

material issues that seem obscure as long as it does so in a fair and impartial manner.” In re

Maher, 314 Ill. App. 3d 1088, 1097, 734 N.E.2d 95, 102 (2000). The propriety of a judge’s

examination is dependent upon the individual circumstances of the case and normally rests

within the discretion of the court. People v. Wesley, 18 Ill. 2d 138, 155, 163 N.E.2d 500, 509

(1959). However, it must not depart from its function as an impartial tribunal and assume the role

of an advocate. People v. Evans, 2017 IL App (1st) 150091, ¶ 24, 80 N.E.3d 736. One method by

- 18 - which reviewing courts have assessed whether a trial judge’s examination crossed over into

advocacy is whether the court’s questions were intended to “ ‘elicit the truth’ ” on an otherwise

obscure material issue, or were instead “argumentative or hostile.” See People v. Jackson, 409

Ill. App. 3d 631, 649, 949 N.E.2d 215, 231 (2011), for an extreme example. Here, the court, in

questioning defendant about his conflict waiver, recharacterized his two claims as “regret” and

then asked, somewhat argumentatively, “how is that his fault?”, meaning his counsel’s fault.

Although the trial court was making every effort to provide defendant with a full opportunity to

express his various complaints, it must be remembered, at this stage of the proceedings,

defendant was attempting to represent himself pro se and the court, if it was going to inquire

further into the facts of specific allegations, was supposed to be assessing the need for alternate

counsel in a “ ‘neutral and nonadversarial’ ” manner. Jolly, 2014 IL 117142, ¶ 38.

¶ 35 With regard to the conflict issue, defendant’s claims, as noted above, revolved

around representations made to him by counsel. This created a situation where, if counsel

disagreed or disputed defendant’s version of the incidents, there was no way to resolve them

without appointing separate counsel since the State’s comments to the court clearly cast doubt on

the representations defendant said his attorney made. Defendant said, throughout the pendency of

the case, counsel represented to him that the State was pushing the conflict issue and that counsel

told him if he did not waive the conflict, it could be four or five months before he might proceed

to trial. When the court ultimately asked counsel to respond, it never inquired about either of the

two claims defendant made regarding the conflict issue, and counsel never addressed either of

them specifically other than to say he did not recall telling defendant “it’s gonna be two or three

months if you don’t waive it.” Instead, counsel said the court was aware of the circumstances at

the time.

- 19 - ¶ 36 It is unclear from the record exactly how the conflict issue arose in the first place

because the first reference on the record comes after an apparent conversation between the trial

court and counsel in chambers during a recess immediately before jury selection was to begin.

The record begins with the court discussing a “possible conflict of interest” and defendant’s

counsel’s opinion there is a waivable per se conflict. The record also reveals the State seemed

genuinely surprised when defense counsel raised the issue immediately before voir dire as the

State seemed to lack details about the extent of defense counsel’s involvement in previously

representing the victim, but it expressed concern about possible issues on appeal. Defendant’s

counsel said he did not know the State’s position on waiver but that defendant was willing to

waive the issue. This information was clearly available to the court at the time of the “pre-

Krankel” hearing and of which it could take notice when assessing the need for alternate counsel.

The conflict between counsel’s representations to his client and those to the court were obvious.

The State had made it clear there was no prior reference to a conflict and that they were not

opposed to waiver; they simply wanted something on the record. Defendant said his attorney

discussed the conflict throughout pretrial preparation, claiming the State was “pushing the

conflict issue.” This, and defendant’s assertion his counsel told him it could be “four or five

months” before he proceeded to trial if the conflict was not waived, were never directly

addressed by counsel in his response.

¶ 37 Considering the last-minute disclosure of what defense counsel characterized as a

per se conflict, coupled with his assertion defendant was ready to waive, and the State’s

indication this matter had not previously been raised by anyone, the factual conflict between

counsel and his client’s representation of how this matter arose was significant. Further, the trial

court had to be aware there were issues about the conflict which remained unexplained, such as,

- 20 - if counsel and his client had already discussed the conflict and waiver, why was it never brought

to the court’s attention until immediately before jury selection? Or, why did this issue not arise

until defendant rejected an apparently last-minute plea offer from the State? In fact, according to

the record, after waiting for jury selection to begin, the court had to release the jury for the day

because of this issue. Defense counsel’s claim he had no idea what the State’s position might be

is perplexing in light of defendant’s assertion his lawyer had been telling him throughout the

case the State was “pushing” the conflict issue. According to defendant, he was aware of the

possible conflict as far back as when counsel was assigned to him by the public defender, who

was to have discussed this with counsel. Notably, counsel did not deny this, or even comment on

it. Further, the court was aware at the earlier hearing, counsel said he had represented defendant

previously—a point defendant vehemently denied. These are significant factual issues apparent

from the record and available to the court in deciding whether alternate counsel needed to be

appointed to flesh out defendant’s claims for a full hearing. “ ‘[D]uring 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 defendant’s claim.’ ” Jolly, 2014 IL

117142, ¶ 30 (quoting Moore, 207 Ill. 2d at 78). Instead, although with the best of intentions, the

trial court was drawn into deciding the merits of defendant’s pro se claims simply by asserting

defendant “regretted” his waiver decision.

¶ 38 Defendant complained about counsel’s failure to acquire a video which allegedly

depicted defendant, the victim, and at least two of the three girls who were alleged to have

actually inflicted the injuries on the victim for which defendant was on trial. According to

defendant, on the video, which was, at the time, circulating on the Internet, the girls were

- 21 - “openly talking about what they had did [sic] to this victim.” When counsel was given the

opportunity to respond, he initially indicated he looked at the video, which was apparently a

screen shot of the video playing on another device, decided he could not lay a proper foundation,

and “it didn’t lend anything to complete our theory of the case.” However, defendant maintained

that counsel’s “theory of the case” was never discussed with him. Defendant later contended he

asked counsel to get the actual video when it was still playing on social media but counsel

refused. The trial court then asked, “[Counsel,] did you do everything in your power to locate

that video and examine the video to see if it could be used as potential evidence on your client’s

behalf?” In light of counsel’s response that he did not attempt to obtain a copy of the video, was

unsure whether his investigator had obtained a copy, and the fact that counsel’s “trial strategy”

discussion was with the investigator but apparently never with the defendant, there were

sufficient factual issues raised by defendant’s claim to warrant the appointment of counsel to

investigate further. Defendant maintained the girls on the video expressly discussed causing the

injuries for which the victim was being hospitalized. If true, it would be difficult to conclude

how such evidence was not relevant. This, however, was a question to be answered after new

counsel was appointed to “flesh out” defendant’s allegations. See People v. Wilson, 2019 IL App

(4th) 180214, ¶ 21, 137 N.E.3d 868. The video may well have been of no benefit, but such was

not the issue before the court at that point in time. The issue was whether the claim was

sufficient to support appointing new counsel to investigate it for purposes of assessing counsel’s

representation. A video which purports to show third parties discussing their involvement in

causing the injuries for which defendant was on trial would be hard for any counsel to ignore.

The claim he could not lay a foundation for the video seems questionable since defendant and the

victim were also on the video and knew where and when it was taken.

- 22 - ¶ 39 There were a number of other allegations raised regarding counsel’s failure to

question or call certain witnesses or cross-examine others, much of which was properly

characterized by the trial court as matters of trial strategy and, therefore, not the proper subject of

a full hearing. See People v. West, 187 Ill. 2d 418, 432, 719 N.E.2d 664, 673 (1999) (claims

based on defense counsel’s trial strategy are generally immune from ineffective assistance of

counsel claims). However, the two issues mentioned above were, in our opinion, sufficient to

place the trial court on notice there was a need for the appointment of alternate counsel. Factual

questions surrounding the conflict waiver and alleged failure to acquire a possibly exculpatory

video were sufficient to raise issues of “ ‘possible neglect of the case’ ” and should have

warranted the appointment of new counsel to independently investigate and represent defendant

at a separate hearing. Wilson, 2019 IL App (4th) 180214, ¶ 20. Rather than determining whether

new counsel should be appointed, the court lumped all of defendant’s claims into the category of

questions of trial strategy and denied defendant’s ineffective assistance of counsel claim. This

was not the purpose of the hearing; instead the court was to evaluate whether there was a need

for substitute counsel. Trial courts undoubtedly must evaluate the factual and legal bases for

ineffectiveness claims; however, we would assume that would still be within the context of

determining whether counsel needs to be appointed. Therein lies one of the issues which remain

unresolved by our supreme court’s Roddis decision; how far does the trial court go when

addressing both the factual and legal bases for a claim of ineffective assistance of counsel? There

are many claims of ineffective assistance which, on their face, are either so contrary to the record

or so fanciful as to defy all reasonable logic. For those, any trial court should be able to decide

whether alternate counsel is necessary. Where, however, the claims are more involved, have

some level of support in the record or are not directly contradicted by counsel, what is the trial

- 23 - court to do? It is not fair for a pro se defendant to be expected to adequately present his claims

without the assistance of counsel, yet, it would appear he or she must be prepared to do so, to

some degree, just to obtain the assistance of counsel; which was what we understood the

intended purpose of a Krankel hearing to be. Here, we believe once the trial court saw there were

clear factual disputes relevant to an issue as sensitive as a conflict waiver, along with issues

relating to a possibly exculpatory video, the decision should have been made to appoint alternate

counsel. For these reasons, we believe the trial court erred by failing to appoint substitute

counsel to independently investigate and present defendant’s ineffective assistance of counsel

claims after it conducted its Krankel hearing.

¶ 40 B. Petition for Rehearing

¶ 41 On January 28, 2020, we filed a Rule 23 order reversing and remanding the trial

court’s decision to dismiss defendant’s ineffective assistance of counsel claim at the pre-Krankel

hearing. On February 10, 2020, we agreed to allow the State’s motion for a rehearing based on

the recent supreme court decision in Roddis, 2020 IL 124352. We have discussed the holding of

Roddis above. Our supreme court explained that because the trial court is “most familiar with the

proceedings at issue,” it is “best situated” to consider both the factual and legal merits of a

defendant’s claim(s) of ineffective assistance in order to decide whether the claims “lack merit”

or require the appointment of independent counsel to pursue them. Roddis, 2020 IL 124352,

¶ 61. We acknowledge the trial court is best situated to review the legal and factual merits when

reviewing a defendant’s posttrial ineffective assistance of counsel claim as part of a Krankel

inquiry. The supreme court stated in Roddis there is no exhaustive categorical list or particular

framework to which a trial court must adhere when doing so. Roddis, 2020 IL 124352 ¶ 64. Our

supreme court emphasized that reviewing courts must “adhere to a case-by-case, fact specific

- 24 - examination, driven by the record.” Roddis, 2020 IL 124352, ¶ 64. Here, defendant raised

specific claims of ineffective assistance which related not only to a per se conflict of interest but

also to whether counsel’s pretrial representations to defendant were consistent with the evidence

in the record. Counsel himself said he had no idea what the State’s position was with regard to a

conflict and waiver. The State said there had been no previous mention of a conflict. Defendant

said his lawyer talked about it early in the case, said the State was the one pushing the issue, and

that if he did not waive it, he would remain in custody substantially longer. Further, counsel’s

changing explanation for disregarding a video which apparently contained exculpatory

information should have been concerning to the trial court. Counsel did not deny the content of

the video as represented by defendant; he simply said he did not think it would “add anything to

our case”. He acknowledged never attempting to get a copy of the video and was not sure

whether his investigator had. His reasoning was that it was not consistent with the “theory of the

case” he discussed with his investigator; never addressing defendant’s claim he did not discuss

this theory with defendant. Although there were additional allegations raised; some of which

could be discounted as matters of trial strategy, the existence of at least these two areas of

conflict should have been sufficient to warrant appointment of alternate counsel, who could then

proceed to separate wheat from chaff.

¶ 42 III. CONCLUSION

¶ 43 For the reasons stated, the judgment of the circuit court of Macon County is

reversed. The matter is remanded for the appointment of new counsel to represent the defendant

on the merits of this posttrial claim that defense counsel was ineffective and take whatever action

appointed counsel deems appropriate. See People v. Lawson, 2019 IL App (4th) 180452, ¶¶ 54-

55. We take no position on the merits of such claim. Furthermore, because we conclude remand

- 25 - is necessary for the appointment of new counsel to investigate defendant’s ineffective assistance

claims, we need not consider the other issues raised by defendant on appeal. People v. Bell, 2018

IL App (4th) 151016, ¶ 37, 100 N.E.3d 177.

¶ 44 Reversed and remanded with directions.

- 26 -