                               No. 2--06--0994    Filed: 1-30-09
______________________________________________________________________________

                                               IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Du Page County
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 05--CF--1953
                                       )
ERIC M. PENCE,                         ) Honorable
                                       ) George J. Bakalis,
      Defendant-Appellant.             ) Judge, Presiding.
_____________________________________________________________________________

       JUSTICE SCHOSTOK delivered the opinion of the court:

       Defendant, Eric M. Pence, appeals from his convictions of one count of aggravated criminal

sexual abuse and two counts of criminal sexual assault. The issue on appeal is whether the trial court

made an appropriate inquiry into defendant's posttrial allegations of ineffective assistance of counsel.

For the reasons that follow, we remand.

       On June 14, 2006, following a bench trial, defendant was found guilty of one count of

aggravated criminal sexual abuse (720 ILCS 5/12--16(c)(1)(i) (West 2006)) and two counts of

criminal sexual assault (720 ILCS 5/12--13(a)(4) (West 2006)).

       Prior to the sentencing hearing, on September 15, 2006, the parties appeared before the court.

Defense counsel informed the court that defendant had filed a complaint against him with the

Attorney Registration and Disciplinary Commission (ARDC) and that defendant had refused to
No. 2--06--0994


disclose to defense counsel the contents of the complaint. Thereafter, the following colloquy

occurred between the court and defendant:

               "THE COURT: [Defendant], tell me what's going on.

               DEFENDANT PENCE: Your Honor, with all due respect, I don't understand why this

       is being brought to your attention. I did not fire–

               THE COURT: Let me explain why it's brought to my attention. It has to be brought

       to my attention if there is going to be a problem on your part with [defense counsel]

       representing you. If you feel that somehow he has been ineffective in his representation of

       you during the course of trial, then I also have to know whether or not, given that, if that's

       your belief, you continue to want him to represent you at a sentencing which is a very crucial

       part of the case.

               If you are unhappy with his representation, you think he hasn't done the job that you

       feel he should have done, then the question is, why would you want him to represent you at

       the sentencing hearing? That's why I'm asking.

               DEFENDANT PENCE: Well, okay. Fine.

               I understand that.

               But the matter in which I had hired him still is that intention [sic]. I have not fired

       him. He is still under obligation to fulfill his duty that he was hired for.

               THE COURT: He is willing to do that.

               But I have to know that that's your choice, your decision, even if you perhaps have

       filed such a complaint, do you continue to want [defense counsel] to represent you at that

       sentencing hearing?



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              DEFENDANT PENCE: Correct.

              [DEFENSE COUNSEL]: My only concern, the only comment I would have, I have

       some concerns about some things not only are they going to end up in another complaint–

              THE COURT: He has retained you. He says he wants you to represent him. I don't

       think I could tell him he can't have you represent him if that's who he wants.

              [DEFENSE COUNSEL]: That's fine."

       On September 18, 2006, prior to the start of the sentencing hearing, the following colloquy

occurred between the trial court and defendant:

              "THE COURT: *** [Defendant], I want to be sure we're all absolutely clear as to

       how you want to proceed today. It's my understanding when we talked the other day that you

       want [defense counsel] to represent you in this sentencing hearing; is that correct?

              [DEFENDANT]: Yes, your Honor.

              THE COURT: You're not asking for time to get a new lawyer, correct?

              [DEFENDANT]: I'm afraid I can't do that at the moment.

              THE COURT: That's not my question. My question is, sir, you filed a complaint

       against the attorney with the [ARDC] against [defense counsel]. I need to know whether you

       want him to represent you at this hearing, or if you wanted time to find a new lawyer to

       represent you. If you cannot afford an attorney, then I have to inquire as to whether I can

       appoint an attorney for you. In order to do that, I have to find out the nature of your

       complaint with the [ARDC]. I have to know how you want to proceed.

              [DEFENDANT]: Well, I feel that he should fulfill his obligation, and I would like

       to proceed with these matters.



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              THE COURT: Okay. This is your choice; is that correct?

              [DEFENDANT]: That's correct.

              THE COURT: Okay. I have found cases that say it is not a per se conflict of interest.

              [ASSISTANT STATE'S ATTORNEY]: We found similar cases and showed them

       to Counsel, People versus Childress, and just as long as the--if the Court would also maybe

       even inform the defendant that even though it's not a per se conflict, just should there be

       some conflict, is he waiving it today?

              THE COURT: Well, I think there is no conflict. The cases say there is no per se

       conflict. He's choosing to proceed. It's his choice. I want to be sure to give him one. Either

       he wanted to proceed with [defense counsel], that he didn't want time to find [a] new lawyer;

       or that he didn't want me to appoint new counsel to represent him, in which case then I have

       to make an inquiry as to the basis of his complaint. He is telling me he doesn't want to do

       any of those things. He wants [defense counsel] to represent him, so we'll proceed."

       Following the presentation of evidence in aggravation and in mitigation, defendant made the

following statement:

              "[DEFENDANT]: *** First, I would like to thank you for letting me address you,

       address the Bench. Secondly, I do respect your decision, although there were issues of facts

       that my defense looked [sic] and omitted. You were denied the full picture for which you[r]

       verdict may have changed.

              In accepting your verdict, I now beseech your honesty and justice with your judgment.

       I plead for your mercy and lenience, and I implore that you realize my background is free of

       such felony convictions. Again, I request your fair judgment in handing out my sentence.



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       In sum, I feel my defense did not thoroughly represent me. I only hope now that you be fair

       and unbiased in sentencing me. Thank you. God bless you."

       The trial court sentenced defendant to nine years' imprisonment on each conviction of

criminal sexual assault and to three years' imprisonment on the conviction of aggravated criminal

sexual abuse, to be served consecutively.

       Defendant filed a motion to reconsider his sentence. At the outset of the hearing on the

motion, on September 28, 2006, the following colloquy occurred:

                 "[ASSISTANT STATE'S ATTORNEY]: ***

                 ***

                 *** We would ask, based upon the defendant's statement of allocution indicating that

       there was some defect or omission by counsel in presenting evidence or presenting

       information to this Court either--whether it be at sentencing or at trial or both, we believe

       that's--at this juncture it's appropriate for the Court to inquire of the defendant what that is

       so that if that's something that the defendant, now of his own accord, is saying to this Court

       is some defect in proceedings, that should be made of record now and we're asking the Court

       to make an inquiry.

                 THE COURT: You're going to have to refresh my memory. What was it that he said?

                 [ASSISTANT STATE'S ATTORNEY]: In his statement of allocution the defendant

       indicated that the Court did not see the full story in that not all evidence was brought on his

       behalf.

                 And it's our position that it was fairly obvious that he was talking about his counsel.




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              And, again I know we've been through this before, but, Judge, now is the time to

      address that issue.

              And if the defendant does not want to address that issue and doesn't want to make a

      disclosure to the Court or doesn't want to present that information, that's fine. But then that's

      his right and that's his knowing waiver of that.

              But we believe it's important now that we're down to the trial proceedings, for

      purposes of any appeal, that the defendant present that information so we can handle it now

      while it's appropriate to handle it and while the witnesses have things fresh in their mind and

      while the proceedings are close in time to the judgment of the Court.

              We would ask the Court to inquire of the defendant about those matters and about

      anything that he believes was not presented to [the] Court.

              THE COURT: Okay. We did, I think, in essence cover some of this before the

      sentencing hearing when Mr.--the indication was that [defendant's] father complained of the

      terms of registration regarding the case. And [defendant] indicated at that time that he didn't

      want to get into the matter and wanted [defense counsel] to continue to represent him.

              But we are at a stage, [defendant], at this point where sentence has been entered.

      Your appellate rights were explained to you.

              If there is an issue that this Court can correct at this point in time, now is the point

      in time to do it.

              You run the risk, sir, by not raising it at this point in time that it might be considered

      waived on appeal. Because the purpose of posttrial motions is to give the Court the




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      opportunity to correct any errors that may have been made during the course of trial or

      sentencing.

              So again, sir, I would ask you as to whether you wish to do that or not?

              [DEFENDANT]: I'm going to need some time. I'm going to need at least a month

      possibly to look into additional, if not new, counsel.

              THE COURT: Well–

              [DEFENDANT]: That decision I can't make right at this moment.

              THE COURT: Your appeal time, sir, is going to run from today's date. As I

      explained to you, you have 30 days. There is no other motion on–

              DEFENDANT: I understand.

              THE COURT: --file other than the motion to reconsider the sentence which I'm going

      to deny in terms of the motion to reconsider the sentence.

              But in terms of any other issue, you have 30 days from today's date to file your notice

      of appeal.

              And, again, I think if you don't file some type of motion within this Court within that

      period of time raising some issues, you run the risk that they will be considered waived on

      appeal. That's all I can tell you.

              Anything else you want?

              [ASSISTANT STATE'S ATTORNEY]: No, Judge.

              But in light of the Defendant's response, I guess we'd ask that maybe the matter be

      set over--not for a month.

              THE COURT: I'm not going to set it for a–



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               [ASSISTANT STATE'S ATTORNEY]: Maybe a week.

               THE COURT: If he wants to file a motion, he can file a motion. If he doesn't want

       to, he doesn't want to.

               He's going to [the] Department of Corrections. I'm not going to stay it."

       Defendant timely appealed.

       Defendant argues that the trial court failed to adequately inquire into the basis of defendant's

allegations concerning his attorney's ineffectiveness at trial, specifically, the claims he made in

allocution that "[his] defense did not thoroughly represent [him]" and that "there were issues of facts

that my defense looked [sic] and omitted" and, further, that the court was "denied the full picture for

which you[r] verdict may have changed." The State responds that "defendant was asked specifically,

and on more than one occasion, to specify any problems he might have had with his attorney, but he

refused to do so."

       When a defendant makes a pro se posttrial claim of ineffective assistance of counsel, "the

trial court must at least examine the factual matters underlying the defendant's claim." People v.

Robinson, 157 Ill. 2d 68, 86 (1993); People v. Sanchez, 329 Ill. App. 3d 59, 66 (2002). If, after

examining the factual matters, the court determines that the claim lacks merit or pertains only to

matters of trial strategy, the court may deny the motion. Robinson, 157 Ill. 2d at 86; Sanchez, 329

Ill. App. 3d at 66. If the allegations suggest possible neglect of the case, the court should appoint

new counsel to assist in the motion. Robinson, 157 Ill. 2d at 86; Sanchez, 329 Ill. App. 3d at 66.

       As to our standard of review, defendant maintains that it is de novo because "the sufficiency

of the allegations is purely a legal issue." See, e.g., People v. Coleman, 183 Ill. 2d 366 (1998)

(sufficiency of allegations in a postconviction petition is a purely legal issue and reviewed de novo).



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The State maintains that "there is no legal determination to be reviewed, but a factual one: whether

the trial court adequately investigated defendant's allegations of ineffective assistance of counsel."

Without any citation to authority, the State argues that we should determine whether the trial court's

finding was against the manifest weight of the evidence. We need not resolve this issue, because

under any standard the trial court erred.

       As an initial matter, we note that, in his opening brief, defendant maintained that the "first

indication that he was dissatisfied with his attorney's performance was his filing of the complaint

with the [ARDC]" and that the trial court failed to inquire into the nature of the complaint.

Apparently, when defendant's appellate counsel filed the opening brief, she did not have the benefit

of the transcript from the September 15, 2006, proceeding, which (as she now concedes in her reply

brief) clearly established that the trial court did initiate an inquiry into the filing of the ARDC

complaint. In light of the State's filing of the September 15, 2006, transcript, defendant withdraws

the argument raised in his opening brief concerning the filing of the ARDC complaint.

       Relying on Sanchez, defendant argues that we should consider his verbal allegations of

ineffectiveness as a "motion" sufficient to have raised the issue of attorney ineffectiveness. In

Sanchez, the defendant stated at his sentencing hearing that "his attorney failed to investigate his

case." Sanchez, 329 Ill. App. 3d at 66. The defendant further stated that "he was framed and that

he could have proved that if his attorney had investigated his case." Sanchez, 329 Ill. App. 3d at 66.

The judge sentenced defendant without responding to the defendant's remarks. On appeal, the First

District characterized the defendant's remarks as a " 'motion.' " Sanchez, 329 Ill. App. 3d at 66. The

court remanded for a hearing on the defendant's ineffective-assistance claim, holding that, under




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Robinson, "a preliminary inquiry was called for when defendant expressed dissatisfaction with his

trial attorney." Sanchez, 329 Ill. App. 3d at 66.

        Here, as in Sanchez, the trial court never inquired into the factual matters underlying

defendant's allegations made in allocution concerning his attorney's ineffectiveness.            When

defendant stated in allocution that "[his] defense did not thoroughly represent [him]" and that "there

were issues of facts that my defense looked [sic] and omitted" and, further, that the court was "denied

the full picture for which you[r] verdict may have changed," the court should have made further

inquiry. Indeed, the State urged the court to make such an inquiry when the parties appeared before

the court on defendant's motion for reconsideration. However, the court seemed to be under the

mistaken belief that the State was referring to another issue. In response to the State's request that

the court question defendant concerning "his statement of allocution," the court stated:

                "We did, I think, in essence cover some of this before the sentencing hearing when

        Mr.--the indication was that [defendant's] father complained of the terms of registration

        regarding the case. And [defendant] indicated at that time that he didn't want to get into the

        matter and wanted [defense counsel] to continue to represent him." (Emphasis added.)

Certainly the court could not have addressed before the sentencing hearing the specific claims made

by defendant at the sentencing hearing. The matters addressed by the court prior to the sentencing

hearing stemmed from defendant's filing of the ARDC complaint. Defendant did not make anyone

aware of the contents of the complaint, and, in response to the court's questioning at the September

15, 2006, hearing about his desire to go forward with defense counsel's representation, defendant

responded that his attorney should "fulfill his obligation." There is nothing in the record to show that




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the ARDC filing involved the same ineffectiveness claims later raised by defendant at the sentencing

hearing.

       The issue concerning the filing of the ARDC complaint and the issue of the allegations of

ineffectiveness defendant made in allocution are distinct, and there is no indication in the record that

the court ever conducted an adequate inquiry into the latter. In its brief, the State claims that

"defendant was asked specifically, and on more than one occasion, to specify any problems he might

have had with his attorney, but he refused to do so." However, in support, the State cites to portions

of the transcript from the September 15 and September 18, 2006, hearings, where the court

questioned defendant concerning the ARDC complaint. This does not support the State's claim that

the court conducted an adequate inquiry into defendant's ineffectiveness claims, as the cited inquiries

took place before defendant raised his claims.

       Here, as in Sanchez, the court never considered defendant's claims of ineffectiveness.

Defendant's claims of ineffectiveness may or may not have merit, but the court must examine their

factual basis. Accordingly, based on the foregoing, we remand for that inquiry and for further

appropriate proceedings.

       Remanded.

       O'MALLEY and JORGENSEN, JJ., concur.




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