People v. Moffett

2021 IL App (2d) 190402-U

Opinion

2021 IL App (2d) 190402-U No. 2-19-0402 Order filed October 27, 2021

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

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 18-CM-726 ) YOLANDA MOFFETT, ) Honorable ) Alice C. Tracy, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court. Justices Hutchinson and Schostok concurred in the judgment.

ORDER

¶1 Held: Defendant’s remarks in allocution at sentencing for domestic battery of her daughter did not constitute a clear claim of ineffective assistance of counsel such that the trial court was required to conduct a Krankel inquiry. In remarking that she told counsel about two witnesses who could have rebutted her daughter’s testimony as to the time of the incident, defendant did not clearly express dissatisfaction with counsel’s performance. Nor could the other remark at issue be construed as a claim that counsel should have argued that the daughter had a motive to fabricate the allegation of abuse.

¶2 Following a jury trial in the circuit court of Kane County, defendant, Yolanda Moffett, was

found guilty of domestic battery (720 ILCS 5/12-3.2(a)(2) (West 2018)) and sentenced to a 348- 2021 IL App (2d) 190402-U

day jail term. She argues on appeal that the trial court failed to conduct a proper inquiry into her

pro se claim of ineffective assistance of counsel. We affirm.

¶3 I. BACKGROUND

¶4 At trial, defendant’s daughter, Meliscent Moffett, testified that at about 11 p.m. on March

21, 2018, she and defendant got into an argument because Meliscent had not cleaned the kitchen.

Defendant told Meliscent to bring her an extension cord. Meliscent complied. Defendant hit the

back of Meliscent’s legs with the extension cord more than 10 times. Meliscent tried to move

away, but defendant grabbed her and hit her more. The injuries bled, and Meliscent bandaged

them. When Meliscent went to school the following day, she told school staff members what had

happened, and she visited the school nurse and showed the nurse her injuries. The police were

contacted, and an officer photographed the injuries to Meliscent’s leg. Meliscent denied that she

had fallen over a Christmas tree.

¶5 Several officers spoke with defendant. She admitted that she had threatened Meliscent

with an extension cord, but she denied hitting Meliscent with it. One of the officers who spoke

with defendant testified that he did not recall defendant saying anything about Meliscent tripping

over a Christmas tree. His report did not mention a Christmas tree.

¶6 Defendant testified that she and Meliscent had been having disagreements about

Meliscent’s failure to follow the “house rules.” On the night of the incident, they argued about the

clutter in the house. Defendant was blind, and the clutter interfered with her ability to “see” with

her hands. Defendant asked Meliscent to hold her hand. Defendant threatened Meliscent with an

extension cord but did not hit her. Meliscent pulled her hand away and moved back. As she did

so, she tripped over a disassembled artificial Christmas tree on the floor. When she spoke with

police, defendant told them about the Christmas tree.

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¶7 The jury found defendant guilty of domestic battery and the trial court denied defendant’s

posttrial motion. During her statement in allocution at sentencing, defendant stated, “I’ve got two

people whom I told my attorney could verify that this argument happened about 8:30 in the evening

and by 9:00, I was on the phone with one lady and off the phone with the other one at 10:05. And

I went to bed after that.” Defendant also stated:

“I tried to explain to the attorney [that Meliscent] wants her freedom so she can go live

with her girlfriend. Now, whether she’s straight, bi, lesbian, or gay, I really don’t care; but

whoever she is with, I want to be a nice person, a decent person, an honorable person with

some morals. And this young lady is grooming [Meliscent] for prostitution[,] hence the

naked photos, hence the Lover’s Lane, hence the S&M behavior, et cetera. I don’t condone

the relationship. I never will. And [Meliscent’s] behavior around the home was … yeah.

And to think of my own daughter being able to, wow, do the things that she’s done, it—it

devastates me.”

¶8 II. ANALYSIS

¶9 Defendant argues on appeal that her statements in allocution were pro se claims of

ineffective assistance of counsel and that, pursuant to People v. Krankel, 102 Ill. 2d 181 (1984),

and its progeny, the trial court was obligated to determine whether defendant was entitled to new

counsel to represent her in connection with the claims. In Krankel, our supreme court held that

new counsel should have been appointed to represent a defendant who raised a pro se posttrial

claim of ineffectiveness of counsel. Our supreme court has since held, however, that the right to

new counsel is not automatic. People v. Jolly, 2014 IL 117142, ¶ 29. As stated in People v. Moore,

207 Ill. 2d 68, 77-79 (2003):

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“[W]hen 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. ***

The 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. [Citation.] During this evaluation, some interchange between the trial court and

trial counsel regarding the facts and circumstances surrounding the allegedly ineffective

representation is permissible and usually necessary in assessing what further action, if any,

is warranted on a defendant’s claim. Trial counsel may simply answer questions and

explain the facts and circumstances surrounding the defendant’s allegations. [Citations.]

A brief discussion between the trial court and the defendant may be sufficient. [Citations.]

Also, the trial court can base its evaluation of the defendant’s pro se allegations of

ineffective assistance on its knowledge of defense counsel’s performance at trial and the

insufficiency of the defendant’s allegations on their face. [Citations.]”

¶ 10 At issue here is whether defendant’s remarks during allocution constituted pro se claims

of ineffective assistance of counsel, thus triggering the inquiry described above. To trigger the

trial court’s duty to make a Krankel inquiry, the defendant must present “a clear claim asserting

ineffective assistance of counsel, either orally or in writing.” People v. Ayres, 2017 IL 120071,

¶ 18.

¶ 11 People v. King, 2017 IL App (1st) 142297, cited by the State is instructive. In King, the

defendant was convicted of home invasion and other offenses in connection with an incident in

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which the defendant entered her mother’s home and attacked her sister. The defendant’s mother

had custody of the defendant’s two children and the defendant evidently planned to take the

children. During sentencing, the following exchange occurred:

“ ‘THE DEFENDANT: There was no evidence to support my end of this deal. I

don’t understand why this happened at all. My sister took my dog, broke into my house.

She took my dog.

THE COURT: [Defendant], I will caution you. You already testified.

THE DEFENDANT: There was one call. I mean I have a witness.

THE COURT: I considered your testimony.

THE DEFENDANT: A witness wasn’t called.

THE COURT: If you have any questions—

THE DEFENDANT: This is ridiculous.

***

THE DEFENDANT: I don’t understand this at all. She is—she has a background.

THE COURT: Very well.

THE DEFENDANT: She is on medication.’ ” Id. ¶ 10.

¶ 12 After the parties made arguments in aggravation and mitigation, the court asked the

defendant if there was anything she wished to tell the court. The defendant responded:

“I don’t know what else to say. These are my kids. It was like domestic insanity

going on. I have like a little 13 year old that wanted to run around with my 21-year old

sister.

I asked her to pull her medical background, her criminal background. She has

heroin possession charges.

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I didn’t want her in the house with my sister. We were fighting like a month

straight. She robbed my house. She took my dog. She has my daughter turned against

me.” Id. ¶ 11.

¶ 13 The defendant argued that these remarks raised a claim of ineffective assistance of counsel.

The King court disagreed. The court noted that the defendant never stated, either orally or in

writing, that counsel was ineffective. Id. ¶ 18. The defendant’s reference to a witness who was

not called to testify did not constitute a claim of ineffectiveness. The court noted that it was not

clear whether the witness had observed the events at issue in the case or the alleged break-in at the

defendant’s home and the theft of her dog. Id. The court concluded that although the defendant’s

statement made clear that she was upset with her sister, it was not clear that the defendant was

complaining about counsel. Id. Although the defendant’s statement that she asked “her” to pull

“her” medical and criminal background presumably meant that the defendant asked counsel to

investigate her sister, the court noted that defendant “did not specifically state that she was unhappy

with trial counsel’s representation.” Id. ¶ 20.

¶ 14 Similarly, here, defendant did not make a clear claim of ineffective assistance of counsel.

Although defendant contended that she told counsel that she had witnesses who could establish

that her argument with Meliscent took place earlier than Meliscent testified that it did, she did not

express any dissatisfaction with counsel’s performance. As King teaches, vague references to

evidence not presented at trial do not amount to clear claims of ineffectiveness.

¶ 15 Defendant contends that her remark that she told her lawyer that Meliscent wanted to live

with her girlfriend was a claim that counsel was ineffective for failing to argue that Meliscent had

a motive to fabricate the allegation of abuse. That is an overly generous reading of defendant’s

remark, which simply reflects defendant’s frustration with her relationship with Meliscent and

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with Meliscent’s personal life. Again, defendant did not express dissatisfaction with her attorney’s

performance. The remark does not translate to a claim of ineffective assistance of counsel. We

therefore conclude that no duty of inquiry was triggered under Krankel.

¶ 16 III. CONCLUSION

¶ 17 For the foregoing reasons, we affirm the judgment of the circuit court of Kane County.

¶ 18 Affirmed.

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