FILED August 28, 2019 2019 IL App (4th) 180452 Carla Bender 4th District Appellate NO. 4-18-0452 Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Vermilion County DUSTIN J. LAWSON, ) No. 14CF602 Defendant-Appellant. ) ) The Honorable ) Nancy S. Fahey ) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Knecht and Turner concurred in the judgment and opinion.
OPINION
¶1 In December 2014, the State charged defendant, Dustin J. Lawson, with one count
of armed robbery and one count of attempt (armed robbery). 720 ILCS 5/8-4(a), 18-2(a)(1)
(West 2012). Following defendant’s conviction and sentence, defendant appealed to this court
raising numerous issues. In pertinent part, defendant argued that the trial court failed to conduct a
Krankel inquiry into his pro se claims of ineffective assistance of counsel. See People v.
Krankel, 102 Ill. 2d 181 464 N.E.2d 1045 (1984). This court agreed and remanded for a Krankel
hearing. People v. Lawson, 2017 IL App (4th) 150590-U, ¶ 29. On remand, the trial court
declined to appoint new counsel because it concluded that “the matters were of trial strategy and
that there’s no merit to the allegations.”
¶2 Defendant appeals, arguing in pertinent part that the trial court erred by not
appointing him new counsel. The State argues that (1) this court lacks jurisdiction and (2) defendant was not entitled to new counsel.
¶3 We conclude that (1) this court has jurisdiction and (2) defendant was entitled to
new counsel because his allegations could support a claim of ineffective assistance of counsel.
Ill. Const. 1970, art. VI, § 6; People v. Roddis, 2018 IL App (4th) 170605, ¶ 77, 119 N.E.3d 52.
Accordingly, we remand for further proceedings.
¶4 I. BACKGROUND
¶5 A. Defendant’s Trial
¶6 In December 2014, the State charged defendant with one count of armed robbery
and one count of attempt (armed robbery). 720 ILCS 5/8-4(a), 18-2(a)(1) (West 2012). At
defendant’s jury trial, the State’s evidence consisted primarily of Leroy Harmon’s testimony.
Harmon, the clerk working at Walgreens on the night of the alleged robbery, testified that on
December 6, 2014, defendant approached him, displayed a knife, and demanded money from the
cash register. Harmon stated that defendant ran out of the store because he was unable to open
the cash register. Harmon also testified that he did not know defendant and had never seen him
prior to this incident. Ultimately, the jury found defendant guilty of both counts.
¶7 B. The Pro Se Claims
¶8 Prior to his sentencing hearing, defendant mailed a letter to the trial court,
claiming that he and Harmon knew each other and that Harmon lied at trial. Defendant stated
that Craig Sullivan had introduced him to Harmon in October 2014. Defendant further stated that
he and Harmon had spoken many times since then. Defendant further claimed that he informed
his attorney about this before trial but that counsel replied that it was counsel’s decision to
determine what evidence to present and he chose not to present this evidence.
¶9 In May 2015, the trial court conducted a sentencing hearing. At this hearing,
-2- defendant informed the trial court that his attorney told him, “[S]ometimes you must plead guilty
to things you don’t do.” Defendant repeated his assertion that he knew Harmon and that Harmon
had lied at trial. Defendant stated that he made “the biggest mistake of [his] life” by not
testifying on his own behalf.
¶ 10 The trial court did not inquire further into defendant’s claims and sentenced him
to 15 years in prison.
¶ 11 C. Defendant’s First Appeal
¶ 12 In defendant’s first appeal, he raised numerous arguments. As relevant here,
defendant argued that the trial court failed to conduct a Krankel hearing about his pro se claims
of ineffective assistance of counsel. The State conceded that the trial court should have
conducted a Krankel hearing and agreed that the case should be remanded.
¶ 13 In December 2017, this court accepted the State’s concession and remanded the
case for a Krankel hearing. Lawson, 2017 IL App (4th) 150590-U, ¶¶ 21, 29-31. Due to this
limited remand, this court declined to address defendant’s other arguments because,
“[d]epending on the result of the Krankel hearing, those other issues may become moot.” Id.
¶ 29. This court did not explicitly state that it was retaining jurisdiction to review the proceedings
following remand. See id. ¶¶ 29-31.
¶ 14 D. The Proceedings on Remand
¶ 15 In June 2018, the trial court on remand conducted a Krankel hearing. Defendant’s
trial attorney was also present. At the hearing, the following exchange occurred between
defendant and the trial court:
“THE COURT: Okay. So you’ve raised the issue of ineffective assistance
of counsel and I’m just gonna let you tell me what these attorneys in your mind
-3- did not do correctly.
THE DEFENDANT: One of my biggest issues was towards trial, before
we started trial I did bring up that I had a witness that was willing to testify
against the witness, the only witness on this case, and I believe I had this
conversation with [my attorney]. At the time he told me that he thought there
would be other ways to attack the witness’s credibility, thus being that my witness
had a background. My argument was my witness was related through not
marriage but his sister has children with the victim’s brother and he introduced
me to the victim months beforehand the incident even happened. My argument
was if he was willing to lie about that, the foundation of everything, then what
else was he willing to lie about? So when I brought it up to [my attorney], he told
me, like I said, you know, we have other ways to attack credibility. That never
happened. You know, I had the statements written up, Your Honor. ***
THE COURT: Okay.
THE DEFENDANT: You know, was I ignorant to the law? Yeah, I didn’t
really know a lot of things that I know now, but—
THE COURT: But other than that—or is there anything else?
THE DEFENDANT: I just feel like, I don’t want to attack [my attorney],
because, you know, I’ve really come home over the last four years, but I feel like
this whole thing was shoved to the side, my defense wasn’t taken serious. When I
did talk to him about it he was more concerned about trying to get me to plea out
***. *** I told him I’m not willing to take it, and somewhere along the lines the
rapport was sometimes you gotta cop out to the charge that you didn’t commit,
-4- you know, however it came out, and I’m just saying how I remember it, that I
took very personal like, he just—I felt like he didn’t believe me from the very
beginning, you know. You know, I just didn’t feel like I got a good—a fair shake
for my defense.
THE COURT: Okay. Anything else, sir?
THE DEFENDANT: No. I don’t remember everything else I put in the
record. I didn’t have time to go over my transcripts and actually express myself
before *** court today so—
THE COURT: Okay. I’m gonna allow [your trial attorney] to respond.”
¶ 16 In pertinent part, defendant’s attorney responded as follows:
“As far as his witness Mr. Sullivan, he absolutely told me about Mr.
Sullivan. He absolutely told me that he knew Leroy [Harmon], but—but what—
for me and why we did what we did, why I chose to go this way was I think it was
gonna be sort of—the trial was gonna be a battle of narrative, okay, and if we
don’t present any evidence then our whole thing, our whole closing argument, our
whole cross-examination of Leroy, of the cops, everything, was that other than
Leroy getting on the stand [and] saying that something happened there was no
other evidence presented. There was no 911 call, there was no video of it, there
was no video of the alleged pulling of the knife and taking the cigarette thing.
There was video of him leaving and entering ***. *** And then I wouldn’t have
known of this until he testified, but with Leroy, the way he testified and kind of
came off, you know, *** he just came across as a nice guy. So if you put up—say
we call Craig Sullivan, okay, and if we call Craig Sullivan something must have
-5- happened there. And then, you know, if he testifies and starts to admit some facts
and then if Craig Sullivan testifies that yes the defendant knows him it helps with
ID. Although, [I] recall during the trial to be—I mean, we weren’t really
challenging ID. It was pretty very clear when he was walking in and when he was
coming out they had [a] camera right there at his face. *** So for all of those
reasons that’s why I didn’t call Craig Sullivan even though he absolutely told me
about it ***.”
¶ 17 Defendant’s trial attorney also stated that he encouraged defendant to take the
State’s plea deal because he believed the sentence “would be significantly *** less than had he
lost at trial [and] whatever the Court could give him.” The attorney noted that he encouraged
defendant not to testify because “there’s a possibility he would be testifying in the orange
jumpsuit” and because the State would impeach defendant’s testimony with his prior
convictions.
¶ 18 E. The Trial Court’s Ruling and the Second Appeal
¶ 19 The trial court concluded “that there’s no merit to the Krankel issue. That the
matters were of trial strategy and that there’s no merit to the allegations.”
¶ 20 II. ANALYSIS
¶ 21 Defendant appeals, arguing in pertinent part that the trial court erred on remand
by not appointing him new counsel. The State argues that (1) this court lacks jurisdiction and
(2) defendant was not entitled to new counsel. We address these issues in turn.
¶ 22 A. This Court’s Jurisdiction
¶ 23 The State argues that we do not have jurisdiction to review the Krankel hearing
the trial court conducted on remand. Essentially, the State argues that this court is without
-6- jurisdiction because (1) we did not explicitly retain jurisdiction in our remand instructions,
(2) the trial court’s denial of counsel at a Krankel hearing is not a final and appealable order, and
(3) there is no Illinois Supreme Court rule that explicitly allows for an appeal from a Krankel
hearing. We conclude that we have jurisdiction.
¶ 24 1. The Applicable Law
¶ 25 The Illinois Constitution establishes this court’s jurisdiction as follows:
“Appeals from final judgments of a Circuit Court are a matter of right to
the Appellate Court ***. The Supreme Court may provide by rule for appeals to
the Appellate Court from other than final judgments of Circuit Courts. The
Appellate Court may exercise original jurisdiction when necessary to the
complete determination of any case on review.” Ill. Const. 1970, art. VI, § 6.
¶ 26 This court has jurisdiction to review final judgments entered by the circuit court.
Id.; People v. Vara, 2018 IL 121823, ¶ 13, 115 N.E.3d 53. “A final judgment ‘determines the
litigation on the merits such that the only thing remaining is to proceed with execution of
judgment.’ ” Vara, 2018 IL 121823, ¶ 13 (quoting People v. Shinaul, 2017 IL 120162, ¶ 10, 88
N.E.3d 760). “In a criminal case, the final judgment is the sentence.” Id. ¶ 14.
¶ 27 “When a notice of appeal is properly filed, the appellate court’s jurisdiction
attaches instanter and the trial court loses jurisdiction.” People v. Richards, 394 Ill. App. 3d 706,
708, 916 N.E.2d 66, 68 (2009). “When a matter is properly before the appellate court, it may
exercise original jurisdiction when necessary for the complete determination of any case on
review.” Ashmore v. Board of Trustees of the Bloomington Police Pension Fund, 2018 IL App
(4th) 180196, ¶ 55; see also People v. Owens, 2018 IL App (4th) 170506, ¶ 38 (because this
court had jurisdiction to consider the defendant’s double jeopardy argument pursuant to Illinois
-7- Supreme Court Rule 604(f) (eff. July 1, 2017), this court also had jurisdiction to consider his due
process argument).
¶ 28 2. This Case
¶ 29 After defendant was convicted and sentenced, he appealed, arguing in pertinent
part that the trial court failed to conduct a Krankel hearing into his pro se claims of ineffective
assistance of counsel. The State conceded that this court should remand for a Krankel hearing.
¶ 30 In December 2017, this court accepted the State’s concession and remanded for
the limited purpose of conducting a Krankel hearing. Lawson, 2017 IL App (4th) 150590-U,
¶¶ 21, 29-31. This court declined to address defendant’s other arguments because, “[d]epending
on the result of the Krankel hearing, those other issues may become moot.” Id. ¶ 29. This court
did not explicitly state that it was retaining jurisdiction to review the proceedings following
remand. See id. ¶¶ 29-31.
¶ 31 On remand, the trial court conducted a Krankel hearing and did not appoint a new
attorney for defendant because the court concluded that defendant’s allegations were without
merit and pertained only to matters of trial strategy. After the court so ruled, defendant then filed
a second notice of appeal.
¶ 32 Defendant’s first notice of appeal following his conviction and sentence vested
this court with jurisdiction and divested the trial court of jurisdiction. Ill. Const. 1970, art. VI,
§ 6; Vara, 2018 IL 121823, ¶ 13; Richards, 394 Ill. App. 3d at 708. The Illinois Constitution
provides that this court “may exercise original jurisdiction when necessary to the complete
determination of any case on review.” Ill. Const. 1970, art. VI, § 6. This constitutional provision,
in conjunction with defendant’s first notice of appeal and our remand for a Krankel hearing,
gives this court jurisdiction to review defendant’s appeal arising from the Krankel hearing. See
-8- Ill. Const. 1970, art. VI, § 6; see also Owens, 2018 IL App (4th) 170506, ¶ 38. Stated simply,
when this court has jurisdiction and it remands a matter to the trial court, this court has
jurisdiction to review the proceedings on remand. See Ill. Const. 1970, art. VI, § 6; see also
Ashmore, 2018 IL App (4th) 180196, ¶ 55.
¶ 33 Further, the Illinois Supreme Court has noted that a court of review may consider
claims arising from a Krankel hearing, as well as claims that the defendant brought in his first
appeal. See People v. Moore, 207 Ill. 2d 68, 81-82, 797 N.E.2d 631, 639-40 (2003) (“If the trial
court denies the motion, defendant may still appeal his assertion of ineffective assistance of
counsel along with his other assignments of error.”); see also Krankel, 102 Ill. 2d at 189 (“If
[after conducting a Krankel hearing,] the circuit court denies defendant a new trial, defendant can
still appeal to the appellate court based on his assertion of ineffective assistance of counsel or the
other three issues which were raised in the appellate court and in this court but were not
addressed.”). Likewise, the appellate court has regularly remanded cases for a Krankel hearing
and reviewed the proceedings that occurred on remand without having explicitly stated the
appellate court was retaining jurisdiction. People v. Robinson, 2017 IL App (1st) 161595, ¶ 4, 93
N.E.3d 573; People v. Downs, 2017 IL App (2d) 121156-C, ¶¶ 1-6, 83 N.E.3d 584; People v.
Lobdell, 2019 IL App (3d) 180385, ¶¶ 5-8; People v. Peck, 2017 IL App (4th) 160410, ¶¶ 2-4, 79
N.E.3d 232.
¶ 34 Furthermore, after the State’s brief was filed, this court recently addressed the
State’s jurisdictional argument in People v. Wilson, 2019 IL App (4th) 180214, ¶ 25. In that case,
this court concluded as follows:
“Because we are remanding the matter for further proceedings on
defendant’s pro se claim of ineffective assistance of trial counsel, we again
-9- decline to reach the merits of defendant’s other claims. [Citation]. *** [However],
the State suggests this court lacks jurisdiction to address defendant’s other claims
because our prior order did not explicitly retain jurisdiction or vacate the trial
court’s denial of defendant’s posttrial motion to reconsider his sentence. While
our prior order did not explicitly indicate we were retaining jurisdiction, the
substance of the order—that we were declining to address defendant’s other
claims on appeal because the result from a preliminary Krankel inquiry on remand
could render those claims moot—makes abundantly clear we were retaining
jurisdiction. See [People v.] Wilson, 2016 IL App (4th) 150628-U, ¶ 29. The
State’s cited authority, People v. Garrett, 139 Ill. 2d 189, 564 N.E.2d 784 (1990),
does not support its position that a court loses jurisdiction by failing to explicitly
retain jurisdiction. Instead, Garrett holds this court is empowered under Illinois
Supreme Court Rule 615(b) (eff. Jan. 1, 1967) to remand a cause for a hearing on
a particular matter while retaining jurisdiction. Garrett, 139 Ill. 2d at 195.”
(Emphasis in original.) Id.
¶ 35 We likewise conclude that even though our first order did not state that we were
retaining jurisdiction, “the substance of the order—that we were declining to address defendant’s
other claims on appeal because the result from a preliminary Krankel inquiry on remand could
render those claims moot—makes abundantly clear we were retaining jurisdiction.” Id.
Accordingly, this court has jurisdiction to consider defendant’s claims arising from the Krankel
hearing.
¶ 36 B. The Krankel Hearing
¶ 37 In pertinent part, defendant argues that he demonstrated possible neglect of his
- 10 - case and that the trial court should have appointed new counsel to investigate his claims. We
agree.
¶ 38 1. The Applicable Law
¶ 39 In Krankel, 102 Ill. 2d at 187, the defendant filed a pro se posttrial motion in
which he alleged that his trial counsel was ineffective. The defendant personally argued his
motion, which the trial court denied. Id. at 188-89. On appeal, the State conceded that the
defendant should have had new counsel to represent him on his motion. Id. at 189. The Illinois
Supreme Court agreed and remanded the case for a new hearing with new counsel to determine
whether the defendant was denied effective assistance of counsel. Id. The common-law
procedure derived from Krankel and its progeny “serves the narrow purpose of allowing the trial
court to decide whether to appoint independent counsel to argue a defendant’s pro se posttrial
ineffective assistance claims.” People v. Patrick, 2011 IL 111666, ¶ 39, 960 N.E.2d 1114.
¶ 40 “The sole question in a Krankel inquiry is whether to appoint independent counsel
to represent the defendant on his pro se ineffective assistance claims.” People v. Rhodes, 2019 IL
App (4th) 160917, ¶ 12. “However, the trial court is not required to automatically appoint new
counsel when a defendant raises such a claim.” People v. Ayres, 2017 IL 120071, ¶ 11, 88
N.E.3d 732. The trial court must conduct an inquiry to determine the factual basis of the
defendant’s claims. Id. “If the court determines the claim lacks merit or pertains only to matters
of trial strategy, new counsel need not be appointed and the pro se motion may be denied.”
People v. Taylor, 237 Ill. 2d 68, 75, 927 N.E.2d 1172, 1175-76 (2010). “However, if the
defendant’s allegations show possible neglect of the case, new counsel should be appointed to
argue the defendant’s claim of ineffective assistance.” Id.
¶ 41 “A claim may be meritless if it pertains solely to a matter of trial strategy.”
- 11 - (Emphasis added.) Roddis, 2018 IL App (4th) 170605, ¶ 75. A claim is meritless if it does not
fall within the definition of ineffective assistance of counsel as provided in Strickland v.
Washington, 466 U.S. 668 (1984). Roddis, 2018 IL App (4th) 170605, ¶ 75. To establish a claim
of ineffective assistance of counsel on the merits, the defendant must show that counsel’s
performance was (1) deficient and (2) prejudicial. People v. Sturgeon, 2019 IL App (4th)
170035, ¶ 81.
¶ 42 “[C]ertain claims that may generally be matters of trial strategy could still
potentially support an ineffective assistance claim.” (Emphasis in original.) Roddis, 2018 IL App
(4th) 170605, ¶ 76. “Given that a defendant may, at least potentially, overcome the strong
presumption of sound trial strategy, a [trial] court should not dismiss a claim of ineffectiveness
on the bare fact that it may relate to trial strategy.” People v. Maya, 2019 IL App (3d) 180275,
¶ 27. Thus, when dealing with matters of trial strategy at a Krankel hearing, the trial court must
determine if the allegations and factual bases could support a claim that trial counsel was
objectively unreasonable. Roddis, 2018 IL App (4th) 170605, ¶ 77. “If the allegations and factual
bases could support that claim, new counsel should be appointed.” Id. Stated another way, “a
defendant need not actually demonstrate ineffective assistance, but merely show possible neglect
of the case.” Maya, 2019 IL App (3d) 180275, ¶ 27.
¶ 43 “We review de novo the manner in which the trial court conducted its Krankel
hearing.” People v. Fields, 2013 IL App (2d) 120945, ¶ 39, 997 N.E.2d 791. However, when a
trial court has properly conducted a Krankel hearing, this court will review the trial court’s
determination that a defendant’s claim does not demonstrate a possible neglect of the case by
asking if that decision is manifestly erroneous. Maya, 2019 IL App (3d) 180275, ¶ 17. A
decision is manifestly erroneous “when the opposite conclusion is clearly evident.” People v.
- 12 - Coleman, 2013 IL 113307, ¶ 98, 996 N.E.2d 617.
¶ 44 In Maya, 2019 IL App (3d) 180275, ¶ 3, a case that procedurally is remarkably
similar to the present case, the State charged the defendant with first degree murder, attempted
murder, and unlawful use of a weapon by a felon. During jury selection, Kevin McGrath—a
prospective juror—indicated that he worked as a correctional officer for the Will County
Sheriff’s Department. Id. ¶ 4. Defense counsel did not inquire about McGrath’s profession and
did not seek to dismiss McGrath. Id. McGrath was ultimately seated on the jury, and the jury
found the defendant guilty of both counts. Id. ¶ 5.
¶ 45 The defendant then filed a pro se posttrial motion in which he argued that George
Lenard—one of his attorneys—was ineffective for failing to remove the correctional officer from
the jury pool. Id. ¶ 6. The trial court did not address this pro se argument, and the Third District
in Maya remanded for a Krankel hearing. Id. ¶¶ 7-10. On remand, the defendant alleged that
(1) his attorney refused to order a psychological test to determine if he was fit to stand trial and
(2) he had a “tainted” jury. Id. ¶¶ 11-12. Regarding his second allegation, defendant stated as
follows:
“Mr. George Lenard *** allowed me to have a tainted jury which had a
correctional officer from the housing unit where I was housed named Kevin
McGrath, who I had several altercations with who would tell other inmates about
my case. Since my case was against a minor and—and two females, he would tell
other inmates in hopes to have them attack me and who would come to my cell
and verbally insult me. Before trial he knew who I was by me having a high
profile case and eventually working on my *** POD nine times before trial ***.
After I informed George Lenard about him, he responded telling me, ‘Oh, well,
- 13 - we rather have him rather than anyone else or the venireman who’s a State’s
Attorney.’ In another occasion, after I informed him I didn’t want him on my jury,
he told me, ‘Well, he said he was going to be fair.’ This [correctional officer]
clearly had hatred towards me so of course he was going to find me guilty.” Id.
¶ 11.
¶ 46 The trial court briefly examined Lenard about defendant’s fitness to stand trial,
but the court did not inquire about McGrath or the composition of the jury. Id. ¶ 13. Ultimately,
the trial court concluded that defendant had not shown a possible neglect of the case and declined
to appoint counsel. Id.
¶ 47 On appeal from the Krankel hearing, the defendant argued he sufficiently
demonstrated possible neglect of his case and that the trial court’s finding was manifestly
erroneous. Id. ¶ 15. The Third District agreed, concluding as follows:
“[The State argues] that the court did not err in finding that the defendant
failed to show possible neglect of his case because counsel’s decision not to
exercise a peremptory challenge on McGrath was a matter of trial strategy. Our
supreme court has stated that the circuit court may decline to appoint new counsel
following a preliminary Krankel inquiry where the defendant’s claim ‘pertains
only to matters of trial strategy.’ E.g., Moore, 207 Ill. 2d at 78. We recognize that
this statement, read most strictly, could imply that any claim possibly relating to
trial strategy is per se exempt under Krankel. However, we find such a reading to
be inconsistent with current precedent concerning claims of ineffective assistance
of counsel based on trial strategy.
- 14 - The standard under which all claims of ineffective assistance of counsel
are analyzed was set forth in the seminal case of Strickland v. Washington, 466
U.S. 668 (1984). In establishing that standard, the United States Supreme Court
cautioned that judicial scrutiny of counsel’s performance must be highly
deferential. Id. at 689. The Court held: ‘[A] court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action “might be considered sound
trial strategy.” ’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Our
own supreme court has reaffirmed and emphasized this position on numerous
occasions. [Citations.]
To be sure, both the United States and Illinois Supreme Courts have made
clear that the notion of trial strategy presents a tall hurdle for a defendant raising a
claim of ineffective assistance of counsel. But neither court has held that matters
involving counsel’s trial strategy are unavoidably or absolutely exempt from such
a claim. Our supreme court’s repeated references to overcoming the presumption
of sound trial strategy necessarily dictate that that presumption can, in fact, be
rebutted. See, e.g., People v. Miller, 2013 IL App (1st) 110879, ¶ 84
(“[D]efendant rebutted the presumption that his counsel’s decision not to attempt
to suppress the statement constituted trial strategy ***.”).
As the cases cited above demonstrate, a strict interpretation of our
supreme court’s statement that the circuit court may decline to appoint new
counsel following a Krankel inquiry if the defendant’s claim ‘pertains only to
- 15 - matters of trial strategy’ (e.g., Moore, 207 Ill. 2d at 78) is untenable. Given that a
defendant may, at least potentially, overcome the strong presumption of sound
trial strategy, a circuit court should not dismiss a claim of ineffectiveness on the
bare fact that it may relate to trial strategy. As we explained above, Krankel and
its progeny simply create a procedural framework for the resolution of posttrial
claims of ineffectiveness. It would be illogical to hold such claims to a more
rigorous standard than any other claim of ineffective assistance. It would make
especially little sense in the context of the preliminary inquiry, where a defendant
need not actually demonstrate ineffective assistance, but merely show possible
neglect of the case. See People v. Roddis, 2018 IL App (4th) 170605, ¶¶ 97-100
(comparing the preliminary Krankel inquiry to the first stage of postconviction
proceedings).
***
We make no finding as to the credibility of the defendant’s factual
allegations. However, given the serious nature of the allegations, the absence of
any explanation from defense counsel as to the facts and circumstances
surrounding the allegations, and the fact that the record shows that McGrath was a
Will County correctional officer, we hold that the circuit court’s determination
that the defendant failed to demonstrate possible neglect of the case was
manifestly erroneous. Accordingly, we find that further proceedings on the
defendant’s posttrial claims of ineffectiveness are warranted under the
circumstances presented in this case.” (Emphasis in original.) Id. ¶¶ 24-36.
¶ 48 We fully agree with the Third District’s sound analysis in Maya of the legal issues
- 16 - that case presented.
¶ 49 2. This Case
¶ 50 At trial, the State’s evidence primarily consisted of Leroy Harmon’s testimony.
Harmon, who was the clerk working at Walgreens at the time of the alleged robbery, testified
that defendant approached him, displayed a knife, and demanded money from the cash register.
Harmon also testified that he did not know defendant and had never seen him prior to this
incident.
¶ 51 Prior to sentencing, defendant alleged that Craig Sullivan had introduced him to
Harmon and that they had spoken many times since then. Defendant also claimed that he
informed his attorney about this prior to trial. At the Krankel hearing, defendant stated that if
Harmon “was willing to lie about that, the foundation of everything, then what else was he
willing to lie about? So when I brought it up to [my attorney], he told me, like I said, you know,
we have other ways to attack credibility. That never happened.”
¶ 52 Defendant’s attorney admitted at the Krankel hearing that he “didn’t call Craig
Sullivan [as a witness] even though [defendant] absolutely told me about it.” Counsel stated that
he believed defendant’s case was going to “be a battle of narrative” and that “if we don’t present
any evidence then our whole thing, our whole closing argument, our whole cross-examination”
could focus on “that other than Leroy getting on the stand [and] saying that something
happened[,] there was no other evidence presented.” However, if the State’s evidence primarily
consisted of Leroy Harmon’s testimony, then impeaching that testimony could help win the
“battle of narrative” that counsel described. Further, “the complete failure to impeach the sole
eyewitness when significant impeachment is available is not trial strategy and, thus, may support
an ineffective assistance claim.” People v. Salgado, 263 Ill. App. 3d 238, 246-47, 635 N.E.2d
- 17 - 1367, 1373 (1994); see also People v. Zambrano, 2016 IL App (3d) 140178, ¶ 24, 64 N.E.3d 639
(citing Salgado with approval).
¶ 53 Counsel also stated that “if we call Craig Sullivan something must have happened
there. And then, you know, if he testifies and starts to admit some facts and then if Craig
Sullivan testifies that yes the defendant knows [Leroy Harmon] it helps with ID.” Presumably,
counsel meant that, if Harmon knew defendant, this would make Harmon’s identification of
defendant as the robber more persuasive to the jury. However, counsel immediately went on to
say “we weren’t really challenging ID. It was pretty very clear when he was walking in and when
he was coming out they had [a] camera right there at his face.” Based on counsel’s self-
contradictory statements, we conclude that his declining to impeach Harmon may have been an
unreasonable trial strategy. See People v. Manning, 241 Ill. 2d 319, 348, 948 N.E.2d 542, 559
(2011) (Freeman, J., dissenting, joined by Burke, J.) (“Strickland’s deferential review of trial
strategy does not require courts of review to accept without question that [an attorney’s strategic
decision] was ‘reasonable’ trial ‘strategy.’ ”).
¶ 54 As the Third District concluded in Maya, 2019 IL App (3d) 180275, ¶¶ 35-36, we
conclude that it is clearly evident that defendant’s allegations could support a claim of ineffective
assistance of counsel. See also Roddis, 2018 IL App (4th) 170605, ¶ 77. Thus, as in Maya, we
reverse the trial court’s ruling and remand for further proceedings. Maya, 2019 IL App (3d)
180275, ¶ 40.
¶ 55 We offer no opinion on the actual merits of defendant’s ineffective assistance
claim. On remand, we direct the trial court to appoint new counsel to represent defendant on his
claim so that counsel may proceed as counsel finds appropriate.
¶ 56 C. Defendant’s Other Claims
- 18 - ¶ 57 In passing, we note that defendant raises numerous other arguments in his first
and second appeal. At this time, we decline to address them because they could become moot
depending upon the outcome of defendant’s ineffective assistance of counsel claims.
¶ 58 III. CONCLUSION
¶ 59 For the reasons stated, we reverse the trial court’s judgment and remand for
further proceedings. On remand, we direct the trial court to appoint new counsel to represent
defendant on his ineffective assistance claim so that counsel may proceed as counsel finds
appropriate.
¶ 60 Reversed and remanded with directions.
- 19 - No. 4-18-0452
Decision Under Review: Appeal from the Circuit Court of Vermilion County, No. 14-CF- 602; the Hon. Nancy S. Fahey, Judge, presiding.
Attorneys James E. Chadd, John M. McCarthy, and Mariah K. Shaver, of for State Appellate Defender’s Office, of Springfield, for appellant. Appellant:
Attorneys Patrick Delfino, David J. Robinson, and Allison Paige Brooks, of for State’s Attorneys Appellate Prosecutor’s Office, of Springfield, Appellee: for the People.
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