2024 IL App (4th) 230128-U NOTICE This Order was filed under FILED Supreme Court Rule 23 and is NO. 4-23-0128 September 20, 2024 not precedent except in the Carla Bender limited circumstances allowed IN THE APPELLATE COURT 4th District Appellate under Rule 23(e)(1). Court, IL OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Winnebago County JAMES W. KYLES, ) No. 12CF1390 Defendant-Appellant. ) ) Honorable ) Brendan A. Maher, ) Judge Presiding.
JUSTICE LANNERD delivered the judgment of the court. Justices Harris and Zenoff concurred in the judgment.
ORDER
¶1 Held: The appellate court reversed, concluding defendant was entitled to new Krankel counsel based on ineffective assistance of Krankel counsel at second-stage Krankel proceedings.
¶2 In November 2015, defendant, James W. Kyles, pleaded guilty to aggravated
battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2012)) and was sentenced to 21 years’
incarceration. After several continuances of the hearing on his motion to reconsider sentence,
defendant pro se filed a motion to withdraw his guilty plea, which included several allegations of
ineffective assistance of plea counsel. Thereafter, plea counsel withdrew, and the trial court
appointed the public defender’s office to further represent defendant in postplea proceedings. The
public defender proceeded only on the motion to reconsider sentence. The court denied the motion,
and defendant appealed. ¶3 In September 2020, the Second District remanded the cause for the appointment of
proper Krankel counsel (People v. Krankel, 102 Ill. 2d 181 (1984)) to investigate defendant’s
claims of ineffective assistance of postplea counsel and either (1) file a motion laying out any
nonfrivolous claims for a second-stage Krankel hearing or (2) move to withdraw on the basis there
were no nonfrivolous claims. People v. Kyles, 2020 IL App (2d) 180087, ¶ 48. Krankel counsel
filed a “Motion Pursuant to Krankel,” which included a claim plea counsel operated under a
conflict of interest. After an evidentiary hearing, the trial court denied defendant’s motion.
¶4 On appeal, defendant alleges he received ineffective assistance of Krankel counsel
or, in the alternative, counsel failed to file a certificate pursuant to Illinois Supreme Court Rule
604(d) (eff. July 1, 2017). We agree with defendant’s first contention and reverse and remand with
instructions.
¶5 I. BACKGROUND
¶6 The Second District set forth the underlying facts of this case in defendant’s prior
appeal. See Kyles, 2020 IL App (2d) 180087. Accordingly, we will set forth only those facts
necessary to resolve the issues presented in this case.
¶7 In May 2012, defendant was charged with aggravated battery with a firearm (720
ILCS 5/12-4.2(a)(1) (West 2012)), attempted first degree murder (id. § 8-4(a), 9-1(a)(1)), and two
other firearm offenses. In October 2012, defendant retained private counsel, Glenn Jazwiec.
¶8 On November 6, 2015, the last day of court before defendant’s case was scheduled
to go to trial, the trial court held a plea hearing. Prior to the plea, the court raised the issue of a
potential conflict of interest with defense counsel. Jazwiec explained, “I spoke to [defendant] in
regards to the State’s witness, Demetrius Shivers, who I have represented. I told [defendant] in
regards to that regarding any potential conflict, and [defendant] has notified me that he would be
-2- waiving any conflict that there would be.” The court questioned Jazwiec on the nature of his
representation of Shivers, who was listed as a witness in the State’s discovery disclosures. Jazwiec
explained he had represented Shivers on an unrelated drug charge, and the case was resolved with
a plea agreement approximately two months before defendant’s plea hearing. Jazwiec informed
the court he was not aware Shivers was a witness when representing him, but he confirmed the
State disclosed Shivers as a witness. The following colloquy occurred between the court and
defendant:
“THE COURT: Okay. Now, [defendant], Mr. Jazwiec discussed that with
you today?
[DEFENDANT]: Yes, Your Honor.
THE COURT: And are you waiving any potential conflict—if a conflict
exists, are you waiving any potential conflict in Mr. Jazwiec representing you when
he previously represented this Mr. Shivers?
Apparently he was representing you and Shivers simultaneously, obviously,
at some point. Are you waiving any potential conflict in Mr. Jazwiec continuing to
represent you?
[DEFENDANT]: No, Your Honor.
THE COURT: Maybe I didn't phrase it correctly.
There could be an argument that there is a conflict in Mr. Jazwiec
representing you when he previously represented this State’s witness, Mr. Shivers.
Do you understand that?
[DEFENDANT]: Yes.
-3- THE COURT: You could claim there is a conflict, I don’t want him
representing me if he represented this witness for the State. Do you understand that
part?
THE COURT: Are you waiving or giving up any claim of potential conflict?
Are you—I don’t know how else to phrase it. Let me ask this: Do you want Mr.
Jazwiec to continue to represent you?
THE COURT: Even in light of the fact that he represented Mr. Shivers until
a couple months ago when his case was resolved, you still want Mr. Jazwiec to
THE COURT: You don’t see any problem in him representing you when he
previously represented this Mr. Shivers too?
[DEFENDANT]: No.
THE COURT: Are you satisfied with the work he has done for you, Mr.
Jazwiec?
[DEFENDANT]: Yes, Your Honor.”
The court then requested the terms of the plea agreement. Jazwiec explained defendant would
plead guilty to aggravated battery with a firearm with a sentencing cap of 25 years. In exchange
for his guilty plea, the other charges would be dismissed. After the court fully admonished
defendant, it accepted his plea.
-4- ¶9 At a March 2016 hearing, defendant was sentenced to 21 years’ incarceration.
Jazwiec filed a motion to reconsider defendant’s sentence shortly thereafter. The record reflects a
series of continuances of the hearing on this motion.
¶ 10 In July 2017, while the motion to reconsider was still pending, defendant filed a
pro se motion to withdraw his guilty plea. The motion included, alongside a claim of actual
innocence, several allegations of ineffective assistance of counsel as to Jazwiec. The motion
alleged, in part, Jazwiec “had been at all times representing a current witness” and Jazwiec knew
or should have known the representation created a conflict of interest. Further, the motion stated
the conflict of interest led “counsel into misleading and deceived [defendant] into a open-plea
before the Court as counsel interest and legal representation was at all times more favorable toward
or to the witness ([Shivers]) and against [defendant].” The motion also alleged Jazwiec instructed
defendant to “just say: yes” to the trial court’s questions when discussing the guilty plea.
¶ 11 In August 2017, Jazwiec filed a motion to withdraw as counsel based on
defendant’s allegations in the motion to withdraw his guilty plea. At a hearing, the trial court
allowed Jazwiec to withdraw and appointed the public defender to represent defendant on all
pending issues.
¶ 12 At an October 2017 hearing, Assistant Public Defender Margie O’Conner informed
the trial court defendant had decided to proceed only on the motion to reconsider his sentence.
O’Conner withdrew defendant’s motion to withdraw his guilty plea and filed a new amended
motion to reconsider sentence. After a hearing, the court denied the motion to reconsider sentence
and stated defendant had “a perfected right to an appeal.” Defendant appealed.
¶ 13 On appeal, the Second District determined the trial court had failed to hold a proper
Krankel hearing and defendant’s newly appointed counsel, O’Conner, was ineffective. Kyles, 2020
-5- IL App (2d) 180087, ¶ 27. The court determined the trial court had an “obligation to make a
preliminary inquiry into the merits of the pro se claim” regardless of the appointment of new
counsel. Id. ¶ 36. In doing so, the court further acknowledged the distinctive roles of Krankel
counsel and general postplea counsel. Id. The court then determined O’Conner abandoned the
ineffective assistance claims defendant raised in his pro se motion to withdraw his guilty plea but
did not move to withdraw as Krankel counsel. Id. ¶ 46. Because of her dual roles as Krankel
counsel and general postplea counsel, the Second District found it could not determine whether
O’Conner had reviewed defendant’s claims of ineffective assistance. Id. Therefore, the court
concluded it must presume O’Conner failed to act as Krankel counsel at all, thereby presuming
prejudice in accordance with United States v. Cronic, 466 U.S. 648 (1984). Kyles, 2020 IL App
(2d) 180087, ¶ 46 (citing People v. Downs, 2017 IL App (2d) 121156-C (Downs V)). The Second
District concluded:
“We reverse the judgment and remand the cause with directions to the trial
court to appoint new counsel, who will investigate defendant’s pro se claims of
ineffective assistance and then either (1) present any nonfrivolous claims in a
proper motion and at a second-stage Krankel hearing or (2) move to withdraw on
the basis that there are no nonfrivolous claims and, on the record, support the
request to withdraw with a reasonably specific explanation of the facts and the law
in support thereof.” Id. ¶ 48.
¶ 14 On remand, the public defender’s office indicated it could not represent defendant
due to a conflict based on the Second District’s decision. The trial court appointed conflict counsel.
The appointed conflict counsel then filed a motion to withdraw based on her firm’s representation
of Shivers in an ongoing proceeding. A second conflict counsel was appointed. Second conflict
-6- counsel also withdrew due to representing another potential witness. A third conflict counsel was
appointed. Third conflict counsel withdrew due to sharing office space with Jazwiec. Finally, in
July 2021, attorney John Logan was appointed as conflict counsel.
¶ 15 In July 2022, Logan filed a “Motion Pursuant to Krankel.” As to the
conflict-of-interest claim, the motion stated: “Defense counsel was ineffective in that he
represented a witness for the prosecution (who identified Charles Stallworth,) namely Demetrius
Marquis Shivers in Winnebago County criminal case 2015 CF 1931, creating a conflict of
interest.” The State filed a response to defendant’s motion, which stated, as to the conflict-of-
interest issues, Jazwiec’s representation had ended, so there was no per se conflict of interest, and
defendant had failed to establish an actual conflict of interest.
¶ 16 The trial court held a hearing on the Krankel motion in December 2022. Jazwiec
testified he had represented defendant and entered into plea negotiations with the State. When
asked to summarize the negotiations, Jazwiec stated, “I would like to say I—this was seven some
years ago—,” but continued, “I believe there was a 402 conference that was held. We had various
discussions with the State, and I believe that we, at least at one point had a trial date set.” Jazwiec
did not recall the sentencing cap but believed “there was some type of cap.” He did not recall what
sentence he requested at the sentencing hearing. Jazwiec stated he represented Shivers, and he
“believe[d]” or at least “saw the motion” Shivers was a witness in defendant’s case. When asked
if Shivers’s testimony involved identifying a codefendant, Jazwiec stated, “That’s a possibility.”
Jazwiec stated he knew he was representing two related parties and made the conflict clear to
defendant. When asked what he told defendant about the conflict, Jazwiec stated:
“All I remember is is that my representation of his ended prior to the time
of the plea. And I do know that at the time in which we entered the plea, there was
-7- discussion with Judge Truitt regarding that. And I believe it was specifically waived
by [defendant] on the record—.”
Jazwiec believed he ended his representation of Shivers “a few months before” defendant’s plea
and his representation of Shivers was “very brief.” Jazwiec denied any special treatment for
defendant or Shivers.
¶ 17 Defendant testified he did not know about Jazwiec’s representation of Shivers until
the day of his guilty plea. Defendant believed Shivers’s testimony would have identified him and
his codefendant. Defendant stated, “I didn’t have no knowledge of him representing [Shivers] until
the day of, in which he told me when I pleaded guilty to waiver, as he just said here, there was no
conflict of interest, which it was. But I have no knowledge of, you know, really knowing.”
Defendant affirmed he would not have executed the plea if he had been aware of Jazwiec’s
representation of Shivers. Defendant felt Jazwiec was not representing him “at his best ability.”
On cross-examination, defendant agreed he waived the conflict on the day of his plea.
¶ 18 After defendant’s testimony, Logan stood on the motion and made no further
argument. The trial court continued the hearing to obtain and review the transcripts from the prior
proceedings.
¶ 19 On January 27, 2023, the hearing reconvened for the trial court’s decision. As to
the conflict-of-interest claim, the court recited the claim as written in the motion and ruled as
follows:
“The Court notes that the as written claim does not explain in any detail why or
how attorney Jazwiec’s representation of Demetrius Shivers, at the same time he
was also representing [defendant], caused a conflict of interest or how that conflict
of interest, if any, prejudiced [defendant] during his plea presentment or after his
-8- plea presentment. Court records reflect that Demetrius Shivers pled guilty and
received first offender probation on 09/14/2015, approximately two months before
[defendant] pled guilty on November 6th of 2015. Attorney Jazwiec represented
Shivers at his plea presentment. There is no information in the record, no allegation
made by, by counsel for the defense or by the State or by anyone that Shivers had
entered into any kind of a cooperation agreement with the State in connection with
[defendant’s] trial and/or plea. So those records are not available.
Attorney Jazwiec at the hearing that we held, testified credibly, and
supported by the plea transcript that [defendant] had waived any possible conflict
with respect to Attorney Jazwiec’s representation of Demetrius Shivers.
[Defendant] repeatedly affirmed to Judge Truitt that he wanted attorney Jazwiec to
remain as counsel during his plea presentment. ***
Even if [defendant] subjectively did not believe he had waived a perceived
conflict of interest, [defendant] has not demonstrated that the conflict, if any, caused
his conviction or otherwise prejudiced him in any way. As noted above, [defendant]
has an obligation to show both that his counsel’s performance was objectively
unreasonable and that the deficient performance resulted in actual prejudice to the
defendant. [defendant] in this case, has not established either, that Attorney
Jazwiec’s performance was deficient, or that he was actually prejudiced on the issue
of prior representation of Demetrius Shivers.”
The court denied all allegations in the motion.
¶ 20 This appeal followed.
¶ 21 II. ANALYSIS
-9- ¶ 22 On appeal, defendant argues Krankel counsel provided ineffective assistance and
failed to comply with the appellate court’s mandate. In the alternative, defendant contends counsel
failed to file a Rule 604(d) certificate. Because we agree with defendant’s first contention, we
reverse and remand for further proceedings.
¶ 23 A. Dismissal
¶ 24 As a threshold matter, the State argues we cannot address the merits of defendant’s
appeal because he did not timely file a motion to withdraw his partially negotiated guilty plea prior
to filing his notice of appeal.
¶ 25 Generally, a defendant’s filing of a motion to withdraw his guilty plea pursuant to
Rule 604(d) is “a condition precedent to an appeal from a judgment on a plea of guilty.” People v.
Flowers, 208 Ill. 2d 291, 300-01 (2003). A defendant’s failure to file a timely motion to withdraw
pursuant to the rule does not deprive this court of jurisdiction. Id. at 301. Rather, as a general rule,
“the failure to file a timely Rule 604(d) motion precludes the appellate court from considering the
appeal on the merits,” and the appeal must be dismissed. Id. Specifically, Rule 604(d), as it existed
when defendant pleaded guilty, states in relevant part:
“No appeal from a judgment entered upon a plea of guilty shall be taken unless the
defendant, within 30 days of the date on which sentence is imposed, files in the trial
court a motion to reconsider the sentence, if only the sentence is being challenged,
or, if the plea is being challenged, a motion to withdraw the plea of guilty and vacate
the judgment. No appeal shall be taken upon a negotiated plea of guilty challenging
the sentence as excessive unless the defendant, within 30 days of the imposition of
sentence, files a motion to withdraw the plea of guilty and vacate the judgment. For
purposes of this rule, a negotiated plea of guilty is one in which the prosecution has
- 10 - bound itself to recommend a specific sentence, or a specific range of sentence, or
where the prosecution has made concessions relating to the sentence to be imposed
and not merely to the charge or charges then pending.” Ill. S. Ct. R. 604(d) (eff.
Dec. 11, 2014).
As defendant’s plea agreement involved a sentencing cap, it was a partially negotiated plea of
guilty. Therefore, before appealing a judgment on a plea of guilty, defendant was required to file
a motion to withdraw his plea and vacate the judgment. Otherwise, the Post-Conviction Hearing
Act (725 ILCS 5/122-1 et seq. (West 2022)) would be defendant’s only recourse. Flowers, 208 Ill.
2d at 301.
¶ 26 However, the record reflects defendant did in fact file a timely motion to withdraw
his plea and vacate the judgment. See People v. Lima, 2024 IL App (4th) 230490-U, ¶ 18 (finding
where a defendant files a postplea motion while a timely filed postplea motion remains pending,
the subsequent motion is a “timely amendment or supplement to [the] defendant’s *** postplea
challenge”). It was this motion which led to the Krankel proceedings. Although the trial court did
not hold a proper Krankel hearing at the time and O’Conner later withdrew the motion to withdraw
the guilty plea, the proceedings on remand were a continuation of the proceedings on defendant’s
claims of ineffective assistance of counsel as raised in his motion to withdraw his guilty plea.
¶ 27 The Second District directed new counsel on remand to file “a proper motion” for
a second stage Krankel hearing. Kyles, 2020 IL App (2d) 180087, ¶ 48. “The second stage consists
of an adversarial and evidentiary hearing on the defendant’s claims, and during this hearing the
defendant is represented by Krankel counsel.” Downs V, 2017 IL App (2d) 121156-C, ¶ 43. Here,
counsel titled the second-stage motion as “Motion Pursuant to Krankel.” In similar cases, these
motions have been entitled “amended motion for a new trial” (People v. Downs, 2022 IL App (2d)
- 11 - 200280-U, ¶ 18 (Downs VI)) and “motion seeking a finding of ineffective assistance of counsel”
(People v. Cassimatis, 2018 IL App (2d) 180764-U, ¶ 59). “ ‘[A] motion’s content determines its
character, not the title or label asserted by the movant.’ ” People v. Johnson, 2019 IL App (4th)
170622, ¶ 12 (quoting People v. Smith, 371 Ill. App. 3d 817, 821 (2007)). Defendant’s motion
claimed ineffective assistance of counsel during his guilty plea proceedings. If the trial court had
determined defendant’s plea counsel had provided ineffective assistance, the proper remedy would
be a return to the status quo prior to defendant’s guilty plea. In essence, therefore, a motion to
withdraw guilty plea and a second-stage Krankel motion have the same function. See People v.
Jones, 2024 IL App (1st) 221506, ¶ 25 (“Krankel serves a purpose like that of Rule 604(d) by
allowing the trial court to fact-find while memories are fresh.”); see also People v. Evans, 174 Ill.
2d 320, 332 (1996) (finding a motion to withdraw guilty plea, if granted, would return the parties
to the status quo). Therefore, we find for the purpose of our review of the Krankel proceedings,
defendant’s motion pursuant to Krankel functioned as a continuation of his motion to withdraw
his guilty plea, and Rule 604(d) does not bar our review of the merits of defendant’s claims.
¶ 28 The State further cites People v. Anderson, 2023 IL App (4th) 220357, ¶¶ 16-17,
for the proposition defendant cannot challenge his Krankel hearing without a timely motion to
withdraw his guilty plea. However, as this court stated, the trial court in Anderson did not have
jurisdiction to even hold a Krankel hearing, as the defendant’s ineffective assistance claim there
was untimely filed during probation revocation proceedings. Id. ¶ 17. Therefore, this court vacated
the order appointing new counsel as void. Id. ¶ 18. Such is not the case here. The trial court here
specifically had jurisdiction to entertain defendant’s Krankel motion, as the Second District
remanded the case for the trial court to hold further Krankel proceedings. Kyles, 2020 IL App (2d)
- 12 - 180087, ¶ 48. Further, as discussed, the Krankel proceedings functioned as a continuation of
defendant’s timely motion to withdraw his guilty plea. Anderson is inapposite.
¶ 29 The State also argues this court does not have jurisdiction as defendant’s motion to
reconsider sentence remains pending. See Ill. S. Ct. R. 606(b) (eff. Dec. 7, 2023) (“When a timely
posttrial or postsentencing motion directed against the judgment has been filed *** any notice of
appeal filed before the entry of the order disposing of all pending postjudgment motions shall have
no effect and shall be stricken by the trial court.”). The State finds its justification for this claim
by interpreting the Second District’s reversal as reversing the amended motion to reconsider
sentence. However, the appellate court’s directions were clear. The cause was remanded for the
trial court to appoint new counsel, who would “then either (1) present any nonfrivolous claims in
a proper motion and at a second-stage Krankel hearing or (2) move to withdraw on the basis that
there are no nonfrivolous claims.” (Emphasis added.) Kyles, 2020 IL App (2d) 180087, ¶ 48.
Neither of these options imply the motion to reconsider was reinstated. As we have already
determined defendant’s motion pursuant to Krankel functioned as a continuation of his motion to
withdraw guilty plea, there was no pending motion before the trial court.
¶ 30 B. Ineffective Assistance of Krankel Counsel
¶ 31 Turning to the merits of the instant appeal, defendant argues Logan provided
ineffective assistance during second-stage Krankel proceedings. Specifically, defendant contends
Logan failed to present his claim related to Jazwiec’s conflict of interest in representing Shivers.
¶ 32 This case comes to us after the Second District remanded with specific instructions.
The Second District instructed appointed counsel to “(1) present any nonfrivolous claims in a
proper motion and at a second-stage Krankel hearing or (2) move to withdraw on the basis that
there are no nonfrivolous claims.” Id. After the Second District’s decision in the first appeal,
- 13 - Winnebago County was redistricted from the Second District to the Fourth District. The Illinois
Supreme Court has given us specific instructions for this situation:
“If a case is heard by one appellate district on appeal and if a subsequent appeal in
that case is heard by a new appellate district pursuant to this order, the new district
shall treat the decision of the prior district as the law of the case. The fact that the
decision of the prior district applied the law of the prior district that is contrary to
the law of the new district shall not be a basis for departing from the decision of the
prior district.” Ill. S. Ct., M.R. 30858 (eff. Dec. 8, 2021).
Therefore, we will apply the law for second-stage Krankel hearings as it has developed in the
Second District and consistent with the prior order in this case. The propositions of law set forth
below are generally derived from the Second District’s disposition, which relied heavily on
Downs V.
¶ 33 At the second stage of Krankel proceedings, a defendant is represented by Krankel
counsel for the presentation of their claims of ineffective assistance at an adversarial and
evidentiary hearing. Downs V, 2017 IL App (2d) 121156-C, ¶ 43. Krankel counsel has an
obligation during second stage proceedings “to independently evaluate the defendant’s pro se
allegations of ineffective assistance of trial counsel and present those with merit to the trial court.”
Id. ¶ 49. If Krankel counsel “cannot find a single nonfrivolous allegation of ineffective assistance
of trial counsel,” then counsel “should seek permission from the trial court to withdraw from his
or her representation of the defendant” and “accompany the motion requesting permission to
withdraw with a memo analyzing the defendant’s allegations and explaining why they lack
arguable merit.” Id. ¶ 51.
- 14 - ¶ 34 A defendant’s claim of ineffective assistance of counsel is analyzed under the
two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Veach,
2017 IL 120649, ¶ 29; People v. Cherry, 2016 IL 118728, ¶¶ 24-30 (applying Strickland for a
claim of ineffective assistance of Krankel counsel). To prevail on an ineffective-assistance claim,
“a defendant must show both that counsel’s performance was deficient and that the deficient
performance prejudiced the defendant.” People v. Petrenko, 237 Ill. 2d 490, 496 (2010). A
defendant must satisfy both prongs of the Strickland standard, and the failure to satisfy either prong
precludes a finding of ineffective assistance of counsel. People v. Clendenin, 238 Ill. 2d 302,
317-18 (2010).
¶ 35 1. Deficient Performance
¶ 36 Defendant argues Krankel counsel was ineffective for failing to fully plead his
conflict-of-interest claim. To establish deficient performance, the defendant must show “counsel’s
performance ‘fell below an objective standard of reasonableness.’ ” People v. Valdez, 2016 IL
119860, ¶ 14 (quoting Strickland, 466 U.S. at 688).
¶ 37 “A criminal defendant’s sixth amendment right to effective assistance of counsel
includes the right to conflict-free representation.” People v. Yost, 2021 IL 126187, ¶ 36.
“Unlike other jurisdictions, Illinois law recognizes two types of conflict of
interest—actual and per se. People v. Fields, 2012 IL 112438, ¶ 17; see also
[People v. Spreitzer, 123 Ill. 2d 1, 14 (1988)] (noting ‘[t]he term “per se” conflict
does not appear in the United States Supreme Court case law, or for that matter, in
cases from our sister jurisdictions’).” Id. ¶ 37.
¶ 38 “A per se conflict of interest exists when specific facts about the defense attorney’s
status, by themselves, create a disabling conflict.” Id. ¶ 39. Our supreme court recognizes three
- 15 - instances which are per se conflicts of interest: “(1) when defense counsel has a contemporaneous
association with the victim, the prosecution, or an entity assisting the prosecution; (2) when
defense counsel contemporaneously represents a prosecution witness; and (3) when defense
counsel was a former prosecutor who was personally involved in the prosecution of the defendant.”
Id. ¶ 66.
¶ 39 An actual conflict of interest, however, requires a defendant to “identify an actual
conflict that adversely affected his counsel’s performance.” Id. ¶ 38. To establish an actual
conflict, a defendant must “identify a specific deficiency in his counsel’s strategy, tactics, or
decision making that is attributable to the alleged conflict.” Id. “Speculative allegations and
conclusory statements are insufficient to establish an actual conflict of interest.” Id.
¶ 40 On appeal, defendant specifically argues Logan did not identify a specific
deficiency attributable to the conflict in order to properly plead an actual conflict of interest.
However, it is of note to this court that Logan in fact did not argue whether the alleged conflict
was a per se or actual conflict of interest at all. The claim as laid out in the Krankel motion was a
mere barefaced allegation Jazwiec’s representation of Shivers was a conflict of interest. Whether
the claim should have been presented as an actual or per se conflict is a decision for Krankel
counsel to make. However, in this case, Logan failed to make that decision when he included the
claim in the Krankel motion.
¶ 41 Further, Logan made no argument challenging the alleged waiver, which would be
a potential fatal flaw in any conflict-of-interest claim. Prior to his plea, defendant may have waived
the conflict of interest in court. A waiver of conflict-free counsel must be made knowingly and
intelligently. People v. Polk, 2024 IL App (1st) 181933, ¶ 256. Such a waiver “is therefore ‘not
valid unless the defendant is admonished regarding the existence and significance of the
- 16 - conflict.’ ” Id. (quoting People v. Poole, 2015 IL App (4th) 130847, ¶ 34). Logan made no mention
of the waiver in the Krankel motion, much less alleged the waiver was invalid. It is not clear from
the record whether Logan was actually aware of the waiver when he included the conflict-of-
interest claim.
¶ 42 Logan did not correct these deficiencies at the second-stage Krankel hearing,
despite the State’s motion pointing out “[s]peculative allegations and conclusory statements are
insufficient to establish an actual conflict of interest.” Logan called Jazwiec, who could not recall
when his representation of Shivers ended, but “believe[d]” it was “a few months before.” The
majority of Jazwiec’s statements were nonspecific and vague, and he did not recall several key
facts about the case, such as the sentence he requested for defendant, eventually agreeing with
Logan’s suggestion of 10 years, saying, “I’d be guessing, but that sounds about right.” Yet Logan
did not call into question Jazwiec’s vague testimony. Despite major discrepancies between
Jazwiec’s and defendant’s testimony—for example, when Jazwiec informed defendant he was also
representing Shivers—Logan made no argument after the testimony was presented and stood “on
the motion.”
¶ 43 The State concedes Logan’s inclusion of the conflict-of-interest claim implies he
considered it to be “ ‘nonfrivolous’ at the very least,” although the State disagrees with defendant
on the implication of this finding. However, Logan was under “no obligation to raise that argument
in a posttrial motion.” People v. Brown, 2017 IL App (3d) 140921, ¶ 34; see People v. Easley, 192
Ill. 2d 307, 329 (2000) (“[I]t is not incompetence of counsel to refrain from raising issues which,
in his or her judgment, are without merit, unless counsel’s appraisal of the merits is patently
wrong.”). In fact, the Second District’s instructions on remand specifically directed Krankel
counsel to “present any nonfrivolous claims in a proper motion.” (Emphasis added.) Kyles, 2020
- 17 - IL App (2d) 180087, ¶ 48. By including the claim in the Krankel motion, Logan was
acknowledging the claim was nonfrivolous. However, by failing to address the core arguments of
a conflict-of-interest claim in any meaningful way, Logan’s representation was objectively
deficient.
¶ 44 2. Prejudice
¶ 45 Although we have found counsel’s performance was deficient, a defendant also
must establish he was prejudiced by counsel’s performance. Prejudice is established when a
reasonable probability exists that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. People v. Evans, 209 Ill. 2d 194, 219-20 (2004). “[A]
reasonable probability that the result would have been different is a probability sufficient to
undermine confidence in the outcome,” meaning the result of the proceeding was “unreliable or
fundamentally unfair.” Id. at 220. A reasonable probability of a different result may exist even
when there is “ample” evidence in support of the outcome that occurred. See People v. Simpson,
2015 IL 116512, ¶¶ 35, 37, 39, 41.
¶ 46 When the Second District considered this case in the first appeal, it came to the
conclusion, following the holdings in Cronic and Downs V, prejudice could be presumed where
counsel “failed to act as Krankel counsel at all.” Kyles, 2020 IL App (2d) 180087, ¶ 46. There is a
presumption of prejudice where: “(1) the defendant is denied counsel at a critical stage of the
proceedings, (2) counsel entirely fails to subject the State’s case to meaningful adversarial testing,
or (3) counsel is called upon to represent a client in circumstances under which no lawyer could
provide effective assistance.” Downs V, 2017 IL App (2d) 121156-C, ¶ 40 (citing Cherry, 2016 IL
118728, ¶ 25). The Second District applied the second exception in its prior decision in this case.
Kyles, 2020 IL App (2d) 180087, ¶ 46. However, as “our supreme court cautioned that [the second
- 18 - Cronic] exception will be successfully invoked only rarely and in extreme circumstances.”
Downs V, 2017 IL App (2d) 121156-C, ¶ 40. In this case, we do not find the deficiency reached
the level of no representation at all. Although counsel may have failed to adequately present the
specific conflict-of-interest claim in any meaningful way, he did present several claims in the
Krankel motion and examined witnesses during the hearing.
¶ 47 Even without a presumption of prejudice, however, we find there was a reasonable
probability the results would have been different if counsel had fully pleaded defendant’s
conflict-of-interest claim. The trial court expressly denied the conflict-of-interest claim based on
the deficiency of the pleadings. In its ruling, the court stated:
“The Court notes that the as written claim does not explain in any detail why or
how attorney Jazwiec’s representation of Demetrius Shivers, at the same time he
was also representing [defendant], caused a conflict of interest or how that conflict
of interest, if any, prejudiced [defendant] during his plea presentment or after his
plea presentment.” (Emphasis added.)
The court also noted defendant had waived the conflict of interest, and it stated, “Even if
[defendant] subjectively did not believe he had waived a perceived conflict of interest, [defendant]
has not demonstrated that the conflict, if any, caused his conviction or otherwise prejudiced him
in any way.” The court finished, “[Defendant] has an obligation to show both that his counsel’s
performance was objectively unreasonable and that the deficient performance resulted in actual
prejudice to the defendant. [Defendant] in this case, has not established either.” (Emphasis added.)
¶ 48 It is clear from the trial court’s ruling that the decision on defendant’s
conflict-of-interest claim was based on counsel’s failure to present it. Indeed, the court was unable
to consider the merits of defendant’s conflict-of-interest claim because the court was not presented
- 19 - with the claim in a way to allow it to actually weigh the evidence. Thus, we need not determine
whether a fully laid out claim would have resulted in a different outcome because counsel’s failure
to present the claim is sufficient to “undermine confidence in the outcome.” Evans, 209 Ill. 2d at
220. We are, therefore, confident there is a reasonable probability an adequately presented claim
would change the results of the proceedings. See id.
¶ 49 We also cannot find defendant had a full and fair hearing on the merits of his claim
to conclude the result would not be different but for counsel’s errors. The State cites People v.
Brown, 2023 IL App (4th) 220573, for the proposition no remand is required where a defendant
received a full and fair evidentiary hearing on his claims of error. We find Brown is distinguishable.
The question in Brown revolved around a facially compliant Rule 604(d) certificate, creating a
presumption of compliance. Id. ¶ 50. This court held, “Where postplea counsel filed a facially
compliant Rule 604(d) certificate and the trial court determines after a full and fair hearing that the
defendant’s claims are meritless, defects in the pleadings do not justify a remand for further
proceedings.” (Emphases added.) Id.
¶ 50 However, here, no Rule 604(d) certificate was presented to create a presumption of
compliance, and counsel’s failings were not limited to the pleadings. As discussed, counsel failed
to challenge Jazwiec’s testimony at the hearing, even when it conflicted with the record. For
example, when Logan asked Jazwiec if he knew he was representing the two related parties,
Jazwiec responded, “Yes.” Yet at the plea hearing, when the trial court asked Jazwiec, “[A]t the
time you were representing Mr. Shivers, were you aware that he was listed on the State’s list of
witnesses in this *** case?”, Jazwiec responded, “I was not.” We need not speculate as to a
possible reasonable explanation for this discrepancy in the testimony, because that was the very
role of counsel at the time of the hearing.
- 20 - ¶ 51 Additionally, we further distinguish Brown, where this court determined the
defendant’s ineffective assistance claim was meritless. Id. ¶ 34. Here, this court cannot determine
the claim was meritless, and the trial court did not have a real opportunity to consider the merits
of the conflict-of-interest claim. It is undisputed Jazwiec at some point represented both defendant
and Shivers, a State’s witness against defendant. Whether this resulted in a conflict of interest,
per se or actual, and whether defendant waived that conflict involves facts not before this court
and facts which were not presented to the trial court. As such, we cannot speak to the ultimate
merit of defendant’s claims. However, we also cannot say based on this record defendant’s claims
are meritless.
¶ 52 As a reasonable probability exists, had counsel fully and properly presented a
conflict-of-interest claim, the results of the proceedings would have been different, we find
defendant was prejudiced and Krankel counsel therefore provided ineffective assistance.
¶ 53 In closing, we note we are loath to remand this case for another Krankel evidentiary
hearing. Defendant was originally charged in 2012, and it has been nearly nine years since his
guilty plea. This case has dragged on for far longer than needed. However, we cannot ignore
counsel’s failure to appropriately present the conflict-of-interest claim in any meaningful way. As
defendant did not receive effective assistance of Krankel counsel, we are obligated to remand this
cause once again for the appointment of new Krankel counsel, who will investigate defendant’s
pro se claims of ineffective assistance and then either (1) present any nonfrivolous claims in a
proper motion and at a second-stage Krankel hearing or (2) move to withdraw on the basis that
there are no nonfrivolous claims and, on the record, support the request to withdraw with a
reasonably specific explanation of the facts and the law in support thereof. See Kyles, 2020 IL App
- 21 - (2d) 180087, ¶ 48. Prior counsel’s assessment of defendant’s claims should have no bearing on
new counsel’s analysis of whether any claim is nonfrivolous.
¶ 54 We additionally note for defendant’s newly appointed Krankel counsel, the process
of second-stage Krankel hearings has been discussed. However, we encourage counsel to clarify
the remedy requested by defendant should the hearing resolve in his favor. We remind counsels
appointed for second-stage Krankel hearings that there is no third stage to Krankel proceedings.
¶ 55 III. CONCLUSION
¶ 56 For the reasons stated, we reverse the trial court’s judgment and remand the cause
with instructions.
¶ 57 Reversed and remanded with instructions.
- 22 -