People v. Wheaton

2023 IL App (4th) 221070-U

• Court: Appellate Court of Illinois
• Decided: September 29, 2023
• Docket: 4-22-1070
• Status: Unpublished

Opinion

2023 IL App (4th) 221070-U NOTICE This Order was filed under FILED September 29, 2023 Supreme Court Rule 23 and is NO. 4-22-1070 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Henry County CHRISTOPHER A. WHEATON, ) No. 21CF129 Defendant-Appellant. ) ) Honorable ) Terence M. Patton, ) Judge Presiding.

JUSTICE ZENOFF delivered the judgment of the court. Presiding Justice DeArmond and Justice Knecht concurred in the judgment.

ORDER

¶1 Held: The appellate court remanded the cause for a preliminary inquiry into defendant’s unaddressed pro se posttrial claims of ineffective assistance of counsel.

¶2 The trial court found defendant guilty of predatory criminal sexual assault of a child

(720 ILCS 5/11-1.40(a)(1) (West 2020)) and criminal sexual assault (720 ILCS 5/11-1.20(a)(3)

(West 2020)). The court sentenced defendant to 25 years in prison. Defendant appeals, arguing

that (1) the court erroneously granted the State’s motion to extend the speedy-trial deadline, (2) the

State failed to prove the offenses beyond a reasonable doubt, (3) the court did not address

defendant’s claim that his counsel failed to submit exculpatory evidence, and (4) the court

considered improper sentencing factors, and the sentence was otherwise excessive. Pursuant to

People v. Krankel, 102 Ill. 2d 181 (1984), and its progeny, we remand for a preliminary inquiry into defendant’s unaddressed pro se posttrial claims of ineffective assistance of counsel.

Accordingly, we decline to address defendant’s other arguments.

¶3 I. BACKGROUND

¶4 We provide only the facts necessary to understand the dipositive Krankel issue.

¶5 The State charged defendant by information with the offenses mentioned above,

both of which allegedly occurred on or about January 23, 2020. The alleged victims were

defendant’s daughters.

¶6 Over defendant’s objection, the trial court granted an extension of the speedy-trial

deadline to allow the State to procure DNA testing. See 725 ILCS 5/103-5(c) (West 2022)

(authorizing a court to extend the speedy-trial deadline for up to 120 days to facilitate DNA

testing). The matter proceeded to a bench trial within the extension granted by the court.

Defendant’s daughters testified that defendant sexually assaulted them after they returned home

from school on multiple occasions. Defendant testified on his own behalf and denied those

allegations. Defendant also testified that on January 23, 2020, his father was at the family home

from about 3 p.m. until 8 p.m. The court found defendant guilty of both charges.

¶7 The presentence investigation report (PSI) contained information that defendant

was dissatisfied with his attorney. Specifically, defendant told the interviewer that “his attorney

‘did nothing’ at trial.” Defendant “denied any wrongdoing and felt his attorney failed to call

witnesses and provide evidence on his behalf.”

¶8 At the sentencing hearing, defendant provided an oral statement. He maintained his

innocence and said he was physically incapable of committing the offenses for which he was

convicted. Defendant also said that one of his daughters made multiple reports that the Illinois

Department of Children and Family Services (DCFS) determined were unfounded. Defendant

-2- added, “DCFS found this one unfounded.” Defendant said he “wish[ed] those papers had been

brought into evidence.” Defendant further suggested there was additional evidence that could have

shown his innocence:

“And if it was redone and those papers brought in and witnesses called for me, my

friends were there, my friends were there at that house every day 3:30 to 4:00

o’clock, every single day, for several years. My dad was there the day this

supposedly happened. That 23rd, we were working on my car. My friend Aaron

showed up that night, we worked on a model together. None of this could have

happened. And that’s all I’ve got to say.”

¶9 Defendant’s sentencing range for predatory criminal sexual assault of a child was

6 to 60 years in prison. 720 ILCS 5/11-1.40(b)(1) (West 2022). The range for criminal sexual

assault was 4 to 15 years in prison. 720 ILCS 5/11-1.20(b)(1) (West 2022); 730 ILCS 5/5-4.5-30(a)

(West 2022). The sentences were mandatorily consecutive. 730 ILCS 5/5-8-4(d)(2) (West 2022).

¶ 10 In its sentencing ruling, the trial court mentioned that it considered the “information

contained in the [PSI].” The court addressed defendant’s grievance against his counsel relating to

the DCFS reports. The court explained that such reports are inadmissible in criminal cases, which

is why defense counsel “didn’t admit them into evidence.” The court added that defense counsel

“knows what the law is, and those can’t be admitted.” The court never questioned defendant about

any other grievances against his counsel, and the court did not make any findings with respect to

those grievances. The court sentenced defendant to 15 years in prison for predatory criminal sexual

assault of a child and 10 years for criminal sexual assault.

¶ 11 The trial court denied defendant’s motion to reconsider the sentence, and defendant

filed a timely notice of appeal.

-3- ¶ 12 II. ANALYSIS

¶ 13 Defendant raises four issues on appeal, one of which is that the trial court did not

address his claim that defense counsel failed to submit exculpatory evidence. For the following

reasons, we remand the cause for a preliminary Krankel inquiry into defendant’s unaddressed

pro se posttrial claims of ineffective assistance of counsel. We decline to address the other issues

defendant raises.

¶ 14 Beginning with our supreme court’s decision in Krankel, 102 Ill. 2d 181, courts

developed a procedure to address pro se posttrial claims of ineffective assistance of counsel.

People v. Jackson, 2020 IL 124112, ¶ 95. Specifically, a court first must “examine the factual basis

of the defendant’s claim.” People v. Roddis, 2020 IL 124352, ¶ 35. “If the 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.” Roddis, 2020 IL 124352, ¶ 35. In considering

whether a claim lacks merit, a court may consider both the factual and legal bases for the claim.

Roddis, 2020 IL 124352, ¶¶ 31, 61. “[I]f the allegations show possible neglect of the case, new

counsel should be appointed.” Roddis, 2020 IL 124352, ¶ 35. This process of screening a pro se

claim is often referred to as a “preliminary Krankel inquiry.” People v. Jolly, 2014 IL 117142,

¶ 30.

¶ 15 In conducting this inquiry, “ ‘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.’ ” People v. Ayres, 2017 IL 120071, ¶ 12 (quoting Jolly, 2014 IL 117142, ¶ 30).

Thus, the court may “inquire of trial counsel about the defendant’s allegations” and “discuss the

allegations with defendant.” Ayres, 2017 IL 120071, ¶ 12. The court may also “make its

-4- determination based on its knowledge of defense counsel’s performance at trial and the

insufficiency of the defendant’s allegations.” Ayres, 2017 IL 120071, ¶ 12.

¶ 16 To trigger the duty to conduct a preliminary Krankel inquiry, “a pro se defendant

is not required to do any more than bring his or her claim to the trial court’s attention.” People v.

Moore, 207 Ill. 2d 68, 79 (2003). It must be “clear” that the defendant is claiming ineffective

assistance of counsel. Ayres, 2017 IL 120071, ¶ 18. However, such claim does not need to be

detailed. See People v. Bell, 2018 IL App (4th) 151016, ¶ 36 (holding that a bare-bones pro se

motion alleging ineffective assistance triggered the duty to conduct a preliminary Krankel inquiry).

Although a defendant need not use the specific phrase “ineffective assistance of counsel” (People

v. Clifton, 2019 IL App (1st) 151967, ¶ 90; People v. Lobdell, 2017 IL App (3d) 150074, ¶ 37),

“the defendant must at least mention his attorney” in a communication to the court (People v.

Thomas, 2017 IL App (4th) 150815, ¶ 31); see People v. Taylor, 237 Ill. 2d 68, 77 (2010)

(determining that a defendant’s “rambling” statement did not require a preliminary Krankel inquiry

where the statement was “amenable to more than one interpretation” and did not even mention the

defendant’s attorney).

¶ 17 There is no fixed procedure for a defendant to present his or her ineffective

assistance claim to the trial court. For example, the duty to conduct a preliminary Krankel inquiry

may arise from something a defendant writes in a letter or says in open court. Ayres, 2017 IL

120071, ¶ 11. Statements attributed to a defendant in a PSI likewise may trigger Krankel if the

record indicates that the trial court read the PSI. People v. Craig, 2020 IL App (2d) 170679, ¶ 18;

In re Johnathan T., 2022 IL 127222, ¶¶ 50-51 (embracing Craig’s holding and applying it to

statements made in materials prepared for a dispositional hearing in a juvenile delinquency case).

-5- ¶ 18 Our standard of review “depends on whether the trial court did or did not determine

the merits of the defendant’s pro se posttrial claims of ineffective assistance of counsel.” Jackson,

2020 IL 124112, ¶ 98. To that end, we review de novo the issue of whether a defendant’s

allegations triggered a duty to conduct a preliminary Krankel inquiry. Bell, 2018 IL App (4th)

151016, ¶ 36. Likewise, “[w]hether the trial court properly conducted a Krankel preliminary

inquiry presents a legal question that we review de novo.” Jackson, 2020 IL 124112, ¶ 98.

“However, if the trial court has properly conducted a Krankel inquiry and has reached a

determination on the merits of the defendant’s Krankel motion, we will reverse only if the trial

court’s action was manifestly erroneous.” Jackson, 2020 IL 124112, ¶ 98. “Manifest error is error

that is clearly evident, plain, and indisputable.” Jackson, 2020 IL 124112, ¶ 98.

¶ 19 Here, the PSI contained defendant’s statements that “his attorney ‘did nothing’ at

trial” and “failed to call witnesses and provide evidence on his behalf.” These statements were

neither ambiguous nor amenable to multiple interpretations. Defendant clearly was complaining

about his counsel’s performance at trial. The trial court stated that it considered the PSI, so the

record confirms the court would have seen these statements.

¶ 20 At the sentencing hearing, defendant said he wished certain DCFS reports had been

introduced as evidence, and he mentioned other witnesses who could have been called. The trial

court interpreted defendant’s remarks as criticizing his counsel’s performance, as the court

explained to defendant that the reason counsel did not seek to admit the DCFS reports was that

they were inadmissible. Under these circumstances, we conclude that defendant’s comments in the

PSI and at the sentencing hearing triggered a duty for the court to conduct a preliminary Krankel

inquiry regarding defendant’s ineffective assistance claims.

-6- ¶ 21 The parties dispute the propriety of the trial court’s determination that the DCFS

reports defendant referenced are inadmissible. We hold that the court’s conclusion was not

manifestly erroneous. The court had enough information from defendant’s statement to understand

the factual basis for this particular claim and to determine that it lacked merit. See Moore, 207 Ill.

2d at 79 (recognizing that a trial court may base its evaluation of a pro se ineffective assistance

claim on “the insufficiency of the defendant’s allegations on their face”). The court properly

recognized that unfounded DCFS reports are inadmissible in criminal proceedings. 325 ILCS

5/7.14 (West 2022). Notwithstanding this statute, defendant proposes that a further preliminary

Krankel inquiry was necessary to investigate the possibilities that either (1) the DCFS reports

contained admissible exculpatory evidence or (2) defense counsel failed to use the reports to

pursue other admissible evidence. However, defendant only criticized his counsel for failing to

seek to admit into evidence the actual DCFS reports, and the court properly addressed that claim.

¶ 22 Although the trial court sufficiently addressed defendant’s claim about the

admissibility of the DCFS reports, the court failed to conduct a preliminary inquiry regarding

defendant’s allegations that his counsel “ ‘did nothing’ ” at trial and did not call witnesses or

provide evidence on defendant’s behalf. Unlike defendant’s claim about the DCFS reports, these

other claims were not inherently baseless on their face, and the court made no findings with respect

to them. The court should have elicited further information from defendant on these claims, asked

defense counsel to respond to the allegations, and then determined whether it was necessary to

appoint new counsel. The State cites Jackson for the proposition that allegations relating to trial

strategy, such as whether to present witnesses, “cannot serve as the basis of a Krankel claim.”

Jackson, 2020 IL 124112, ¶ 106. In Jackson, the trial court conducted a proper preliminary Krankel

inquiry by (1) eliciting information about the factual bases of the defendant’s particular grievances,

-7- (2) allowing defense counsel to explain his actions, and (3) determining that the defendant’s claims

lacked merit. Jackson, 2020 IL 124112, ¶¶ 102-03, 106. Jackson does not support the proposition

that a trial court may simply ignore pro se claims of ineffective assistance relating to the failure to

call witnesses.

¶ 23 Accordingly, we remand for the trial court to conduct a preliminary Krankel inquiry

into defendant’s unaddressed pro se posttrial claims of ineffective assistance of counsel. We

decline to address the other issues defendant raises in this appeal. See Bell, 2018 IL App (4th)

151016, ¶¶ 24, 37 (declining to address the defendant’s remaining arguments, including a

challenge to the sufficiency of the evidence, where the cause first had to be remanded for the trial

court to conduct a preliminary Krankel inquiry). However, we retain jurisdiction over defendant’s

remaining claims. Accordingly, if defendant is dissatisfied with the outcome of the proceedings

on remand, he may appeal again and raise the claims we did not address in this appeal, along with

any claims that arise from the proceedings on remand. See People v. Wilson, 2019 IL App (4th)

180214, ¶ 26.

¶ 24 In his reply brief, defendant agrees that remanding for a preliminary Krankel

inquiry obviates the need to address his arguments regarding sentencing. However,

notwithstanding the need for a remand, defendant asks us to address both his challenge to the

sufficiency of the evidence and his contention that there was a speedy-trial violation, as he would

be entitled to outright reversal of the judgment if he prevailed on either of those issues. To that

end, defendant maintains that Bell was incorrectly decided and contradicts People v. Lopez, 229

Ill. 2d 322 (2008), and People v. Taylor, 76 Ill. 2d 289 (1979).

¶ 25 Other recently published cases have declined to address substantive issues on direct

appeal until the trial court completes posttrial proceedings by conducting a proper preliminary

-8- Krankel inquiry. See People v. Roberson, 2021 IL App (3d) 190212, ¶ 22; People v. Lawson, 2019

IL App (4th) 180452, ¶ 57; Wilson, 2019 IL App (4th) 180214, ¶ 25; People v. Rhodes, 2019 IL

App (4th) 160917, ¶ 21. Additionally, we discern no conflict between Bell and either Lopez or

Taylor. In both Lopez and Taylor, the reviewing courts reversed convictions based on trial errors.

Lopez, 229 Ill. 2d at 366; Taylor, 76 Ill. 2d at 295, 310-11. To avoid the possibility of double

jeopardy violations, those courts reviewed the sufficiency of the evidence to ensure that retrials

would be permissible. Lopez, 229 Ill. 2d at 366-67; Taylor, 76 Ill. 2d at 309. Here, we have not

reversed the judgment or ordered a new trial, so Lopez and Taylor are inapplicable.

¶ 26 Among the goals of Krankel are to “potentially limit issues on appeal” and to create

a record for direct appeal. Ayres, 2017 IL 120071, ¶ 13. Until the trial court completes posttrial

proceedings, it is “premature” for us to address substantive issues in the case. Roberson, 2021 IL

App (3d) 190212, ¶ 22. We are unpersuaded that an exception should apply where a defendant

raises issues potentially implicating outright reversal of the judgment rather than a retrial. We note

that the defendant in Krankel challenged the sufficiency of the evidence—an issue that could have

resulted in outright reversal of the judgment—yet our supreme court remanded the matter to the

trial court for further posttrial proceedings without addressing the sufficiency of the evidence.

Krankel, 102 Ill. 2d at 183, 189. We are aware of no requirement for the appellate court to address

a defendant’s claims piecemeal over the course of multiple direct appeals.

¶ 27 III. CONCLUSION

¶ 28 For the reasons stated, we remand the cause for a preliminary Krankel inquiry into

defendant’s unaddressed pro se posttrial claims of ineffective assistance of counsel.

¶ 29 Remanded with directions.

-9-