NOTICE 2025 IL App (4th) 230770-U This Order was filed under FILED Supreme Court Rule 23 and is NO. 4-23-0770 January 28, 2025 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate IN THE APPELLATE COURT 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. ) McLean County MISOOK NOWLIN, ) No. 11CF800 Defendant-Appellant. ) ) Honorable ) Scott Kording, ) Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court. Justices Steigmann and Cavanagh concurred in the judgment.
ORDER
¶1 Held: As defendant failed to prove she could not meaningfully communicate with the court or counsel, she did not prove she was denied due process or the assistance of counsel in the second and third stages of postconviction proceedings when she was not provided an interpreter.
¶2 In January 2023, the trial court denied the postconviction petition of defendant,
Misook Nowlin, after holding a third-stage evidentiary hearing under section 122-6 of the Post-
Conviction Hearing Act (Act) (725 ILCS 5/122-6 (West 2022)). Defendant appeals, arguing
various claims based on her alleged inability to understand English: (1) she was denied due
process at the hearing, (2) she was constructively denied her statutory right to postconviction
counsel during the second and third stages of proceedings, and (3) counsel provided
unreasonable assistance by not requesting an interpreter. We affirm. ¶3 I. BACKGROUND
¶4 In September 2011, defendant was charged with three counts of the first degree
murder of her mother-in-law (720 ILCS 5/9-1(a)(1), (a)(2) (West 2010)) and one count of
concealment of a homicidal death (720 ILCS 5/9-3.4(a) (West 2010)). On the first day of trial in
December 2012, defendant pleaded guilty to the concealment charge. The jury trial proceeded on
the first degree murder charges.
¶5 A. Trial
¶6 At trial, defendant testified without the aid of an interpreter. We need not provide
a thorough summary of the trial proceedings as, for the most part, those proceedings are
irrelevant to this appeal. It is worth noting, however, defendant provided lengthy testimony in
support of her claim her mother-in-law’s death was the result of self-defense. The transcript from
defendant’s trial contains approximately 70 pages of her testimony. The jury found defendant
guilty of first degree murder. She was sentenced to consecutive prison terms of 50 years for
murder and 5 years for concealment.
¶7 In January 2013, defendant sent two letters to the trial court asserting, in part, she
was denied the effective assistance of trial counsel when counsel denied her request to seek an
interpreter. The following month, the court held a hearing on those allegations pursuant to
People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984). At that hearing, defendant testified
her daughter told her, “[Y]ou can speak English but you have an accent[ ] and some people don’t
understand.” Because of this, on the first day of trial, defendant asked one of her trial attorneys,
Carla Barnes, for a translator, but Barnes denied her request. When the court asked Barnes and
defendant’s other trial attorney, Brian McEldowney, whether defendant made such a request,
both replied she did not.
-2- ¶8 At the close of the hearing, the trial court found defendant’s claim baseless,
concluding the record demonstrated defendant did not need an interpreter. The court found
counsel’s statements credible and determined the following:
“Never once during this case while it was pending did you
ever indicate to the Court that you needed an interpreter, that is
clear. Throughout the case the Court has had the opportunity to
observe you in court, observe you while you testified in court on a
number of different occasions at different hearings including the
trial. The Court was able to view your videotaped interview with
the police in which you had a conversation wholly in English. The
Court did not note anything in any of those observations that
suggested that you needed an interpreter. The Court had been
informed through evidence at hearings in the case that you had
been in this country for a long time, you had operated a business
here, you had worked as an interpreter translating Korean into
English and English into Korean for a period of time. And in
addition to all of that, the Court also went back, frankly I went
back and I reviewed all of your prior court files in which you had
appeared in County Court in two felony and several misdemeanor
trials. I reviewed the records in all of those cases and noted that
never once was an interpreter requested or used in any of those
cases, including a trial that was held in at least one of those cases, a
bench trial.”
-3- ¶9 B. Direct Appeal
¶ 10 After the Krankel hearing, defendant filed a direct appeal. On appeal, defendant
argued (1) her murder conviction should be reversed, as the trial court allowed a detective who
would testify against defendant to sit at the prosecution’s table during trial, and (2) regarding her
concealment conviction, this court should remand for strict compliance with Illinois Supreme
Court Rule 604(d) (eff. Feb. 6, 2013)). People v. Nowlin, 2015 IL App (4th) 130387-U, ¶ 3. We
affirmed defendant’s murder conviction. Id. As to the concealment conviction, we vacated the
order denying defendant’s motion to reconsider sentence and remanded for the filing of a Rule
604(d) certificate, the opportunity to file a motion to withdraw the guilty plea or a motion to
reconsider sentence, and a new hearing. Id.
¶ 11 On remand, defendant filed a motion to reconsider her sentence. In September
2015, a hearing on the motion to reconsider sentence was held, and the motion was denied. She
appealed, arguing the trial court failed to admonish her the sentence for concealment would run
consecutively to her sentence for murder. People v. Nowlin, 2017 IL App (4th) 150957-U, ¶ 2.
Because defendant did not file a motion to withdraw her guilty plea, we lacked jurisdiction to
consider her claim. Id. ¶ 15.
¶ 12 C. Postconviction Proceedings
¶ 13 In September 2015, defendant filed a pro se postconviction petition, asserting
many claims, including an allegation she was denied due process when the trial court denied her
request for an interpreter. The postconviction proceedings were lengthy. They involved three
amended complaints. Assistant Public Defender Jeff Brown filed the first amended petition. In
that petition, counsel asserted two claims, but he did not include the claim defendant was denied
due process when she was denied an interpreter. After the public defender’s office withdrew as
-4- counsel due to a conflict of interest, new counsel, Joshua Rinker, was appointed to represent
defendant. In the second amended postconviction petition, Rinker added a claim but did not
reassert defendant’s claim she should have been provided an interpreter. See People v. Nowlin,
2021 IL App (4th) 190851-U, ¶¶ 30-31, 33. After the dismissal of the second amended
postconviction petition, this court remanded the matter for the appointment of new counsel and
new second-stage proceedings after we determined defendant was denied the reasonable
assistance of counsel during the second stage of proceedings (see id. ¶¶ 38, 61).
¶ 14 On remand, Brown again represented defendant and did so through the
evidentiary hearing at issue in this appeal. Notably, at an August 1, 2022, status hearing, Brown
informed the trial court he was still working on the third amended petition and stated the
following:
“I appreciate the Court having my client come here today. It gives
me a chance to try and communicate with her. We’ve got a little bit
of a language barrier here, but I think I am at the point now where I
can at least work on drafting an amended petition.”
¶ 15 In December 2022, defendant filed her third amended postconviction petition,
asserting McEldowney, her trial counsel, promised her if she pleaded guilty to concealment of a
homicidal death, she would receive a 2-year sentence for that charge and a 20-year sentence for
second degree murder. According to defendant, despite this promise, when she was sentenced to
consecutive terms of 5 years for concealment and 50 years for first degree murder, counsel did
not file a motion to withdraw her guilty plea. Defendant averred, had she known she would not
receive the two-year sentence or that the sentence would be served consecutively to a murder
sentence, she would have gone to trial and asserted a claim of self-defense on all counts.
-5- ¶ 16 The State did not move to dismiss the third amended petition but filed an answer
to defendant’s petition, asserting defendant could not make a substantial showing counsel
provided ineffective assistance. The State pointed to the transcript, which showed defendant told
the trial court she was not promised anything in connection with her plea.
¶ 17 The evidentiary hearing on the third amended postconviction petition was held in
May 2023. At the hearing, two witnesses testified: defendant and McEldowney.
¶ 18 Defendant began by testifying Korean is her first language. Third-stage counsel
asked, “[I]f I or [the State] ask[s] you any questions that you are confused by, will you, rather
than guessing at the answer, let us know that you are confused and allow us to maybe rephrase it
so that you can understand it?” Defendant responded, “Yes.”
¶ 19 Defendant agreed she pleaded guilty to concealment of a homicidal death. She
further agreed she talked with McEldowney before her plea. The following questions and
answers occurred:
“[THIRD-STAGE COUNSEL:] Did you discuss with him
what you would get if you pled guilty to that offense?
A. No.
Q. You didn’t discuss at all what you would get?
Q. Did you have any idea what you would get if you pled
guilty to that offense?
A. No. He—I think he told me maybe I can get two years
for the death hided body thing.
Q. I am going to ask you to repeat that because I am having
-6- a little bit of difficulty understanding what I am guessing other
people are, too.
A. Okay.
Q. What was your understanding of what the repercussions
would be if you pled guilty to Concealment of a Homicidal Death?
A. Yeah.
Q. What did you—
THE COURT: Let me help. [Defendant], here is what I
heard you say, and you correct me if I am wrong.
THE COURT: I heard you say that you think maybe your
attorney said you could get two years for the hiding the body
thing?
A. Yes.
THE COURT: Is that what you just said a moment ago?
A. Yes.”
¶ 20 Defendant agreed the possibility of the two-year sentence led her to plead guilty
to that charge. She did not understand the sentence for concealment would be served
consecutively to her sentence for first degree murder. Brown asked if she felt McEldowney
“made any promises as to what [she] would receive if [she] pled guilty to Concealment of a
Homicidal Death.” Defendant responded, “He did not tell me how many years I was going to
get.” Counsel repeated defendant’s response in the form of the question, and defendant verified
her counsel did not tell her how many years she was “going to get.” The trial court stated, “[F]or
-7- the record, I agree that Mr. Brown’s repeating of the question is consistent with what the
defendant sounded like she was saying.”
¶ 21 Brown further asked, “If you understood those sentences would have been
served—had to be served separately, would you have pled guilty to the concealment charge?”
Defendant stated, “No.” When asked if she would have gone to trial on that charge, defendant
responded, “Yes.” Brown then asked if, in July 2015, when she was in court for a status date and
the trial court explained her options for filing a motion to reconsider the sentence or a motion to
vacate the guilty plea, she had time to talk to McEldowney regarding her sentence. Defendant
replied, “Yes.” Defendant testified the two discussed her options. When asked if she understood
the difference between a motion to reconsider the sentence and a motion to vacate the guilty
plea, defendant replied, “No.” When asked if her counsel informed her about filing a motion to
vacate the guilty plea, defendant said, “No.” A motion to reconsider the sentence was filed
instead.
¶ 22 Defendant agreed she filed a lengthy pro se postconviction petition. Defendant
stated she wrote the petition but then said, “Actually, my friend helped me out because my
English is not that good.” Defendant further testified, “I know something not right so I asked my
friend to write for me post-conviction because something is not right. So she write for me with
handwriting. But I just tell her something is not right, you know.”
¶ 23 On cross-examination, defendant agreed she was asking the trial court for a new
trial on the concealment charge. She further agreed she gave a statement to police officers telling
them what she did with the victim’s body and where it was buried. The following exchange then
occurred:
“Q. What would your defense be to that count of
-8- concealment if the Court grants you a new trial?
[BROWN]: I am going to object. She doesn’t know
defenses. She is not a lawyer.
A. Yeah. I—
THE COURT: Hold on a second, [defendant].
So, the specific evidentiary rule you are citing is?
[BROWN]: That requires legal terms. She is talking in
legal terminology that my client—my client, frankly, barely speaks
English. She is not going to be able to—she doesn’t understand
what affirmative defenses are.”
¶ 24 After the trial court withdrew the question, the State asked defendant what
evidence she would present at trial to show she is innocent of the offense. Defendant responded,
“First of all, I’m asking for my lawyer. You know, I want to have my lawyer. I don’t want to talk
about anything.” The court then asked, “[Defendant] I want to make sure I correctly understood
the last answer you gave. Did you say you do not want to discuss what new evidence there would
be, you would want to talk with your attorney?” Defendant responded, “Yes. I want my lawyer. I
want to have my lawyer to talk about. I don’t want to talk about anything.”
¶ 25 McEldowney testified that, before the trial began, he advised defendant to plead
guilty to concealment. McEldowney reasoned the evidence on that charge was substantial,
emphasizing defendant told the police the location of the body. The strategy for trial was to take
responsibility for the concealment of the death but pursue self-defense on the first degree murder
charge. McEldowney believed the plea would increase defendant’s credibility for the self-
defense assertion. McEldowney did not make any promises regarding sentencing for
-9- concealment. McEldowney filed a motion to reconsider sentence, which was denied.
¶ 26 According to McEldowney, he and defendant appeared before the trial court again
on July 31, 2015. The court explained defendant had the option of proceeding with a motion to
withdraw the guilty plea or a motion to reconsider sentence on the concealment charge.
McEldowney stated defendant, at some point, expressed some confusion. The court then
admonished her in greater detail. The court then gave defendant time to think about her decision.
One month later, defendant appeared before the court, and McEldowney informed the court they
were proceeding on a motion to reconsider. Defendant agreed with the decision. McEldowney
did not want to pursue a motion to withdraw a guilty plea, as the evidence was so overwhelming
and defendant’s plea was voluntary. The only issue was the court’s failure to admonish
defendant regarding the consecutive nature of the sentences. There were no other grounds to
withdraw her plea. McEldowney believed she would be convicted if they proceeded to a trial on
the concealment charge.
¶ 27 Brown asked McEldowney if, when talking to defendant, he “had difficulty
understanding what she was saying.” McEldowney stated:
“I don’t recall any real difficulty communicating with her,
no. There are times—and it is highlighted in one of these
transcripts where she expressed some confusion and said that she
had some difficulty with the English language. But I didn’t—I
never had any problem communicating with her, and I didn’t
perceive any difficulty that she was having understanding what I
was saying.”
¶ 28 In August 2023, the trial court denied defendant’s third amended postconviction
- 10 - petition.
¶ 29 This appeal followed.
¶ 30 II. ANALYSIS
¶ 31 On appeal, defendant contends she should have been provided an interpreter
during postconviction proceedings and the fact she was not given one resulted in a denial of her
due process rights and reasonable representation, if there was any representation at all. The State
counters the record establishes defendant understood English, and, therefore, this court should
affirm the denial of her third amended postconviction petition.
¶ 32 The Act provides a three-stage process by which criminal defendants may obtain
a statutory remedy for claims of “substantial violations of their constitutional rights at trial.”
People v. Robinson, 2020 IL 123849, ¶ 42. Petitions for postconviction relief that were not
dismissed at the first stage advance to the second stage, where counsel is appointed and may
amend the petition. People v. Pendleton, 223 Ill. 2d 458, 472 (2006). Also at this stage, the State
may answer the petition or move to dismiss it. Id. Petitions that survive the second stage advance
to a third-stage hearing, at which a defendant may present evidence in support of his or her
petition. Id. at 472-73.
¶ 33 On appeal here, defendant argues she is entitled to a remand, as she was denied
due process during the evidentiary hearing and reasonable assistance of counsel at both the
second and third stages of postconviction proceedings. Due process must be afforded in
postconviction evidentiary hearings. See People v. Kitchen, 189 Ill. 2d 424, 435(1999) (“[T]he
protection of a defendant’s right to procedural due process in post-conviction proceedings is of
critical importance.”); People v. Taylor, 357 Ill. App. 3d 642, 648 (2005). Due process requires
an accused to be given “the opportunity to be heard at a meaningful time and in a meaningful
- 11 - manner.” (Internal quotation marks omitted.) People v. Stoecker, 2020 IL 124807, ¶ 17 (quoting
In re D.W., 214 Ill. 2d 289, 316 (2005)). As to defendant’s claims regarding her postconviction
counsel’s representation, we note, at all stages of postconviction proceedings, a defendant is
entitled to the reasonable assistance of counsel. People v. Suarez, 224 Ill. 2d 37, 42 (2007); see
People v. Long, 2024 IL App (4th) 230211-U, ¶ 89 (“[W]hen [Illinois Supreme Court Rule]
651(c) [(eff. July 1, 2017)] compliance is not at issue or no longer at issue, a general
reasonableness standard otherwise applies to postconviction proceedings.”). The issues of
whether a defendant was afforded due process and whether a postconviction petitioner was
afforded reasonable assistance of counsel are reviewed de novo. Stoecker, 2020 IL 124807, ¶ 17
(due process); People v. Cotto, 2016 IL 119006, ¶¶ 22-24 (assistance of counsel). We further
note defendant, as the appellant, bears the burden of proving error in the trial court. See
Insurance Benefit Group, Inc. v. Guarantee Trust Life Insurance Co., 2017 IL App (1st) 162808,
¶ 44.
¶ 34 Key to defendant’s appellate claims is proof she did not understand English to the
extent she could meaningfully participate in the third-stage hearing or communicate with counsel
in the presentation of her claims. Unfortunately, the issue was not raised before the trial court
during postconviction proceedings. We are thus tasked with reviewing the record to make a
determination as to defendant’s comprehension of English, without having any input from those
who interacted with her in the postconviction proceedings.
¶ 35 To prove defendant could not understand English and thus meaningfully
communicate with counsel or the trial court, appellate counsel emphasizes the following: First,
the State’s appellee brief focuses on defendant’s ability to speak English at the December 2012
trial and during a proceeding in 2015, well before the postconviction proceedings at issue.
- 12 - Defendant acknowledges she was an interpreter but emphasizes that role ended almost three
decades before the third-stage hearing. Second, during defendant’s testimony at the third-stage
hearing, she stated she asked a friend to help her write her pro se postconviction petition because
her “English is not that good.” Third, Brown made two statements at the third-stage hearing
indicating defendant needed an interpreter. When making an objection to a line of questioning at
the third-stage hearing, counsel stated defendant “barely speaks English,” and in closing
argument, counsel stated, “[S]ometimes it can be a little hard for her to understand us and for us
to understand her.” Fourth, defendant mistakenly confused the words “can” and “will” in her
allegations regarding the concealment plea. At the 2023 third-stage hearing, defendant stated, “I
think he told me maybe I can get two years for the death hided body thing.” (Emphasis added.)
In contrast, in the 2015 and 2022 postconviction petitions, defendant alleged counsel told her she
“will” receive the two-year sentence. Appellate counsel stated, “It’s entirely possible that
[defendant] mixed up these modal verbs during her testimony.” Fifth, of the approximately 40
questions asked by postconviction counsel, only 2 required defendant to answer beyond
providing her name or a “yes” or “no” answer: “What is your first language?” and “What was
your understanding of what the repercussions would be if you pled guilty to Concealment of a
Homicidal Death?” Tellingly, to the latter question, defendant responded, “Yeah.” The State took
a similar approach in questioning defendant. The one open-ended question the State asked was
what the defense would be if she were granted a new trial. Defendant refused to answer, saying
she did not “want to talk about anything” and would leave it to her lawyer, indicating she
possibly, due to her language barrier, could not answer the question.
¶ 36 Having reviewed the record, we find defendant has not shown she did not
understand postconviction proceedings or was unable to communicate with postconviction
- 13 - counsel. Our analysis begins with defendant’s trial, at which she gave lengthy testimony in
English in her defense. At the January 2013 Krankel hearing, the trial court clearly and
unequivocally concluded defendant understood English and the proceedings before it. The record
further shows McEldowney stated he had no difficulty communicating with defendant before the
July 2015 proceedings on the motion to reconsider the sentence on the concealment conviction.
¶ 37 After July 2015, the record is not as clear on the issue of whether defendant
understood English. However, we note, after her conviction, defendant was imprisoned in the
Illinois Department of Corrections. Nothing in the record shows defendant had been in solitary
confinement or in a prison where English is not the primary language. In addition, after the filing
of her pro se petition in 2015, defendant had two attorneys representing her. Neither expressed
an inability to communicate with defendant. Tellingly, Brown initially represented defendant in
2017 and drafted the first amended postconviction petition. After Brown was appointed again to
represent defendant and file the third amended petition in August 2022, he noted some difficulty
communicating with defendant but did not state he was unable to communicate with her or
inform the court defendant’s ability to communicate had declined.
¶ 38 We acknowledge Brown reported during the evidentiary hearing defendant
“barely speaks English.” However, the fact defendant “barely speaks English” is not a statement
defendant does not speak English, but it is a statement she does in fact speak English.
Furthermore, the context of that statement shows Brown made the statement to counter the
State’s questioning regarding an affirmative defense and defendant’s inability to understand
legal terms:
“[THE STATE]: What would your defense be to that count
of concealment if the Court grants you a new trial?
- 14 - [BROWN]: I am going to object. She doesn’t know
legal terminology that my client—my client, frankly, barely speaks
English. She is not going to be able to—she doesn’t understand
The statement is made only to show his client would not understand “legal terminology” in the
way it was phrased. Similarly, Brown’s statement, “[S]ometimes it can be a little hard for her to
understand us and for us to understand her,” shows defendant and Brown were, in fact, able to
communicate.
¶ 39 We are also not convinced the fact defendant changed her testimony from
asserting trial counsel informed her she will get two years for concealment to asserting trial
counsel informed her she can get two years shows she was unable to communicate without the
aid of an interpreter. There are other equally, if not more, compelling reasons for this shift. One,
defendant’s memory may have changed. Two, defendant, frankly, may not have been truthful
and had forgotten which version of the story should be told.
¶ 40 Last, we are not convinced by the form of the questioning with “yes” and “no”
responses demonstrates defendant could not speak English. We note the answers to the questions
were not all “yes” or all “no,” but defendant’s responses varied. The line of questioning
demonstrates counsel led his client, who spoke “broken English,” to support her postconviction
- 15 - claims and does not show defendant did not understand what she was communicating.
¶ 41 As defendant has not shown she did not understand English or was unable to
communicate with her counsel, defendant cannot establish she was denied due process, she was
denied representation by counsel, or counsel provided unreasonable assistance by not seeking an
interpreter.
¶ 42 III. CONCLUSION
¶ 43 We affirm the trial court’s judgment.
¶ 44 Affirmed.
- 16 -