NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2023 IL App (3d) 220071-U
Order filed May 25, 2023 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 18th Judicial Circuit, ) Du Page County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-22-0071 v. ) Circuit No. 19-CF-1512 ) DONNA L. MESSINA, ) Honorable ) Michael W. Reidy, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court. Presiding Justice Holdridge and Justice Peterson concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: The circuit court failed to conduct a preliminary inquiry into defendant’s pro se posttrial allegations of ineffective assistance of counsel.
¶2 Defendant, Donna L. Messina, appeals her conviction for aggravated driving under the
influence (DUI), arguing that the Du Page County circuit court failed to conduct an adequate
inquiry into her posttrial claims of ineffective assistance of counsel. We remand with instructions.
¶3 I. BACKGROUND ¶4 Defendant was charged with two counts of aggravated DUI (625 ILCS 5/11-501(a)(2),
(a)(1), (d)(1)(A), (d)(2)(B) (West 2018)). Prior to trial, the State observed that defendant had
disclosed an expert witness, James Thomas O’Donnell, with his curriculum vitae, but had not
disclosed the field in which O’Donnell would be qualified as an expert. The State asked for an
order requiring defendant to disclose all statements, reports, notes, and memoranda of, or relied
upon by O’Donnell regarding defendant, as well as direct results and data of all examinations and
tests administered by or relied upon by O’Donnell. The week before trial, the State filed a motion
in limine claiming that defendant had not asserted any affirmative defenses. Therefore, the State
requested that defendant be prevented from presenting any evidence or undisclosed testimony,
except for her own testimony. After argument, the court deferred ruling on the motion.
¶5 The case proceeded to trial before a six-person jury. Pertinent to this appeal, defendant
called O’Donnell to testify on her behalf. He was qualified as an expert in toxicology,
pharmacology, and nutrition. O’Donnell testified that he had reviewed the police reports,
laboratory reports, defendant’s medical records, and the video of the arrest; had examined
defendant; and had read literature on the absorption of alcohol in the body. He stated that, through
this preparation, he had learned that defendant had ulcerative colitis. The State objected. After a
discussion outside the presence of the jury, the court sustained the State’s objection to statements
regarding yeast in the gut and the medical diagnosis that had been made by someone else because
it was hearsay and because the doctor’s notes and the medical evidence relied on had not been
tendered to the State. The jury ultimately found defendant guilty of both counts.
¶6 Before sentencing, a presentence investigation report (PSI) was prepared. The PSI included
a statement from defendant, which stated, in part:
2 “I had been seen by three different doctors to diagnose my condition
because the symptoms I was having were foreign to me. I informed each of
doctors of the DUI, accident, how much I had to drink, as well as the gut
yeast infection that I was taking antifungal supplements to kill the yeast,
along with a no carbohydrate and no sugar diet. They decided to treat me
for anxiety, but the symptoms I was having are what was causing me
anxiety. The medication they were prescribing only made those symptoms
worse and I stopped take them. I was finally diagnosed accurately by Dr.
James O’Donnell Pharm.D, M.S, FCP, ABCP, FACN, R.PH. Dr.
O’Donnell diagnosed me with Auto-brewery Syndrome. Unknow to me, the
type of gut yeast that I had was producing alcohol. I was completely
unaware that this could happen.
Dr. O’Donnell appeared in court for my trial and had planned to
testify on my behalf and discuss/explain the condition that I had, but the
prosecution objected, and he was not allowed to speak of this during my
trial because my lawyer did not meet the demand for disclosure that was
requested. My lawyer referred to a previous case, concerning the lack of
disclosure, which was from 1981, but the judge did not accept it. My lawyer,
decided to move forward with my case without my doctor’s testimony and
did not want to have the case continued to obtain documents. Reasons for
this are not known to me. I am sure that if my doctor would have been able
to present his diagnosis, findings, reports from previous doctor visits, and
3 explain the condition that I had at that time, the outcome of this would have
been different.”
At the sentencing hearing, the State discussed the PSI and indicated that defendant was not taking
responsibility for her actions, instead blaming her intoxication on her body’s production of alcohol.
¶7 In reaching its decision, the court noted that it considered the PSI and discussed defendant’s
alleged auto-brewery syndrome. The court did not mention defendant’s comments regarding her
trial counsel. The two counts merged, and defendant was sentenced to 90 days in jail and 24
months’ probation.
¶8 II. ANALYSIS
¶9 On appeal, defendant solely contends that the court erred by failing to conduct a
preliminary inquiry into her posttrial claims of ineffective assistance of counsel as required by
People v. Krankel, 102 Ill. 2d 181 (1984). Specifically, defendant points to her comments in the
PSI mentioning trial counsel’s performance.
¶ 10 The need to conduct a preliminary Krankel inquiry is triggered when a defendant raises a
pro se posttrial claim of ineffective assistance of trial counsel. People v. Ayres, 2017 IL 120071,
¶ 11. A pro se defendant is not required to do anything more than bring his or her ineffective
assistance of counsel claim to the circuit court’s attention. Id. (a pro se defendant is not required
to file a written motion but may raise the ineffective assistance claim orally or through a letter or
a note to the circuit court). “[W]hen a defendant brings a clear claim asserting ineffective assistance
of counsel, either orally or in writing, this is sufficient to trigger the trial court’s duty to conduct a
Krankel inquiry.” Id. ¶ 18. “If the court fails to conduct the necessary preliminary examination as
to the factual basis of the defendant’s allegations, the case must be remanded for the limited
purpose of allowing the court to do so.” People v. Remsik-Miller, 2012 IL App (2d) 100921, ¶ 9.
4 We consider de novo a circuit court’s alleged failure to inquire into a claim of ineffective assistance
of counsel. People v. Bates, 2019 IL 124143, ¶ 14.
¶ 11 Here, defendant’s statement in the PSI clearly referred “to counsel’s failure to do
something.” See People v. Craig, 2020 IL App (2d) 170679, ¶ 17. Defendant stated, “my lawyer
did not meet the demand for disclosure that was requested.” Further, defendant noted that, “My
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NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2023 IL App (3d) 220071-U
Order filed May 25, 2023 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 18th Judicial Circuit, ) Du Page County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-22-0071 v. ) Circuit No. 19-CF-1512 ) DONNA L. MESSINA, ) Honorable ) Michael W. Reidy, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court. Presiding Justice Holdridge and Justice Peterson concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: The circuit court failed to conduct a preliminary inquiry into defendant’s pro se posttrial allegations of ineffective assistance of counsel.
¶2 Defendant, Donna L. Messina, appeals her conviction for aggravated driving under the
influence (DUI), arguing that the Du Page County circuit court failed to conduct an adequate
inquiry into her posttrial claims of ineffective assistance of counsel. We remand with instructions.
¶3 I. BACKGROUND ¶4 Defendant was charged with two counts of aggravated DUI (625 ILCS 5/11-501(a)(2),
(a)(1), (d)(1)(A), (d)(2)(B) (West 2018)). Prior to trial, the State observed that defendant had
disclosed an expert witness, James Thomas O’Donnell, with his curriculum vitae, but had not
disclosed the field in which O’Donnell would be qualified as an expert. The State asked for an
order requiring defendant to disclose all statements, reports, notes, and memoranda of, or relied
upon by O’Donnell regarding defendant, as well as direct results and data of all examinations and
tests administered by or relied upon by O’Donnell. The week before trial, the State filed a motion
in limine claiming that defendant had not asserted any affirmative defenses. Therefore, the State
requested that defendant be prevented from presenting any evidence or undisclosed testimony,
except for her own testimony. After argument, the court deferred ruling on the motion.
¶5 The case proceeded to trial before a six-person jury. Pertinent to this appeal, defendant
called O’Donnell to testify on her behalf. He was qualified as an expert in toxicology,
pharmacology, and nutrition. O’Donnell testified that he had reviewed the police reports,
laboratory reports, defendant’s medical records, and the video of the arrest; had examined
defendant; and had read literature on the absorption of alcohol in the body. He stated that, through
this preparation, he had learned that defendant had ulcerative colitis. The State objected. After a
discussion outside the presence of the jury, the court sustained the State’s objection to statements
regarding yeast in the gut and the medical diagnosis that had been made by someone else because
it was hearsay and because the doctor’s notes and the medical evidence relied on had not been
tendered to the State. The jury ultimately found defendant guilty of both counts.
¶6 Before sentencing, a presentence investigation report (PSI) was prepared. The PSI included
a statement from defendant, which stated, in part:
2 “I had been seen by three different doctors to diagnose my condition
because the symptoms I was having were foreign to me. I informed each of
doctors of the DUI, accident, how much I had to drink, as well as the gut
yeast infection that I was taking antifungal supplements to kill the yeast,
along with a no carbohydrate and no sugar diet. They decided to treat me
for anxiety, but the symptoms I was having are what was causing me
anxiety. The medication they were prescribing only made those symptoms
worse and I stopped take them. I was finally diagnosed accurately by Dr.
James O’Donnell Pharm.D, M.S, FCP, ABCP, FACN, R.PH. Dr.
O’Donnell diagnosed me with Auto-brewery Syndrome. Unknow to me, the
type of gut yeast that I had was producing alcohol. I was completely
unaware that this could happen.
Dr. O’Donnell appeared in court for my trial and had planned to
testify on my behalf and discuss/explain the condition that I had, but the
prosecution objected, and he was not allowed to speak of this during my
trial because my lawyer did not meet the demand for disclosure that was
requested. My lawyer referred to a previous case, concerning the lack of
disclosure, which was from 1981, but the judge did not accept it. My lawyer,
decided to move forward with my case without my doctor’s testimony and
did not want to have the case continued to obtain documents. Reasons for
this are not known to me. I am sure that if my doctor would have been able
to present his diagnosis, findings, reports from previous doctor visits, and
3 explain the condition that I had at that time, the outcome of this would have
been different.”
At the sentencing hearing, the State discussed the PSI and indicated that defendant was not taking
responsibility for her actions, instead blaming her intoxication on her body’s production of alcohol.
¶7 In reaching its decision, the court noted that it considered the PSI and discussed defendant’s
alleged auto-brewery syndrome. The court did not mention defendant’s comments regarding her
trial counsel. The two counts merged, and defendant was sentenced to 90 days in jail and 24
months’ probation.
¶8 II. ANALYSIS
¶9 On appeal, defendant solely contends that the court erred by failing to conduct a
preliminary inquiry into her posttrial claims of ineffective assistance of counsel as required by
People v. Krankel, 102 Ill. 2d 181 (1984). Specifically, defendant points to her comments in the
PSI mentioning trial counsel’s performance.
¶ 10 The need to conduct a preliminary Krankel inquiry is triggered when a defendant raises a
pro se posttrial claim of ineffective assistance of trial counsel. People v. Ayres, 2017 IL 120071,
¶ 11. A pro se defendant is not required to do anything more than bring his or her ineffective
assistance of counsel claim to the circuit court’s attention. Id. (a pro se defendant is not required
to file a written motion but may raise the ineffective assistance claim orally or through a letter or
a note to the circuit court). “[W]hen a defendant brings a clear claim asserting ineffective assistance
of counsel, either orally or in writing, this is sufficient to trigger the trial court’s duty to conduct a
Krankel inquiry.” Id. ¶ 18. “If the court fails to conduct the necessary preliminary examination as
to the factual basis of the defendant’s allegations, the case must be remanded for the limited
purpose of allowing the court to do so.” People v. Remsik-Miller, 2012 IL App (2d) 100921, ¶ 9.
4 We consider de novo a circuit court’s alleged failure to inquire into a claim of ineffective assistance
of counsel. People v. Bates, 2019 IL 124143, ¶ 14.
¶ 11 Here, defendant’s statement in the PSI clearly referred “to counsel’s failure to do
something.” See People v. Craig, 2020 IL App (2d) 170679, ¶ 17. Defendant stated, “my lawyer
did not meet the demand for disclosure that was requested.” Further, defendant noted that, “My
lawyer, decided to move forward with my case without my doctor’s testimony and did not want to
have the case continued to obtain documents. Reasons for this are not known to me.” It is clear
from these statements that defendant was complaining about counsel’s performance. It was not
necessary for defendant to use the specific term “ineffective assistance” in order to raise this claim.
See id.
¶ 12 Further, defendant’s claims were properly presented to the court for purposes of Krankel.
The Second District considered this issue in Craig and stated:
“To be sure, the PSI was prepared by court services, but the statements at
issue were unquestionably those of defendant and, as noted, made a clear
claim of ineffectiveness. Moreover, a PSI is prepared for the court, and the
court is required to consider it. 730 ILCS 5/5-4-1(a)(2) (West 2016). The
record makes clear that the trial court read the PSI. Given that the court read
the allegations of ineffectiveness, which were made by defendant to a court
employee for inclusion in a report prepared specifically for the court, an
inquiry under Krankel was warranted. (Emphasis in original.)” Id. ¶ 18.
We adopt this reasoning. Therefore, we find that the court erred by failing to conduct a preliminary
Krankel inquiry into defendant’s claims of ineffective assistance of counsel.
5 ¶ 13 In coming to this conclusion, we reject the State’s contention that such an error was
harmless as it is rebutted by the record. While the issue of O’Donnell’s testimony was considered
prior to and during trial, it is not clear whether the court’s decision to bar the testimony was based
in any way on trial counsel’s failures to disclose the evidence to the State prior to trial or whether
any action on the part of counsel could have cured the defects barring O’Donnell’s testimony.
¶ 14 Thus, we remand the cause for the limited purpose of allowing the circuit court to inquire
into the factual basis of defendant’s ineffective assistance claims. If defendant’s allegations show
possible incompetent representation of the case, the court should appoint new counsel to argue
defendant’s claim of ineffective assistance. However, if the court concludes that defendant’s claim
lacks merit or pertains only to matters of trial strategy, the court may deny the claim.
¶ 15 III. CONCLUSION
¶ 16 The judgment of the circuit court of Du Page County is remanded with instructions.
¶ 17 Remanded with instructions.