                                   2018 IL App (4th) 170605                              FILED
                                                                                  November 21, 2018
                                         NO. 4-17-0605                                Carla Bender
                                                                                  4th District Appellate
                                 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.                                             )   Macon County
 RYAN M. RODDIS,                                           )   No. 12CF897
            Defendant-Appellant.                           )
                                                           )   Honorable
                                                           )   Thomas E. Griffith Jr.,
                                                           )   Judge Presiding.


               JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
               Presiding Justice Harris and Justice Knecht concurred in the judgment and
opinion.

                                           OPINION

¶1             In June 2012, the State charged defendant, Ryan M. Roddis, with aggravated

domestic battery (720 ILCS 5/12-3.3(a), 12-3.2(a)(1) (West 2010)). Following a bench trial, the

trial court found defendant guilty and sentenced him to six years in prison. Defendant filed

pro se a motion to reduce sentence that also alleged that his trial counsel was ineffective. The

trial court dismissed the motion as untimely.

¶2             On direct appeal, this court upheld defendant’s conviction and sentence but

remanded for a hearing in compliance with People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045

(1984). People v. Roddis, 2016 IL App (4th) 140631-U, ¶ 3.

¶3             On remand, the trial court initially appointed new counsel to represent defendant

on his ineffective assistance of counsel claims. However, at a subsequent hearing, the trial court
allowed that counsel to withdraw because of a potential conflict.

¶4             In January 2017, the trial court conducted a hearing purportedly pursuant to this

court’s remand but deemed it a hearing on defendant’s ineffective assistance claims. After

reviewing defendant’s written claims and questioning him and his trial counsel, the court found

that the allegations did not amount to ineffective assistance of counsel. The court then appointed

new counsel to represent defendant on his motion to reduce sentence. In August 2017, the court

denied that motion.

¶5             Defendant appeals, arguing that the trial court erred by (1) addressing the merits

of his ineffective assistance of counsel claims instead of determining whether new counsel

should have been appointed and (2) not appointing new counsel because defendant showed

“possible neglect of the case.” We agree with defendant’s first argument, vacate the trial court’s

order, and remand with directions.

¶6                                     I. BACKGROUND

¶7                             A. The Bench Trial and Conviction

¶8             In June 2012, the State charged defendant with aggravated domestic battery (720

ILCS 5/12-3.3 (West 2010)), alleging that he pushed his girlfriend, Meghan Collins, causing her

head to hit a door, resulting in a laceration. Defendant was initially represented by Philip Tibbs.

However, defendant later retained new counsel, Baku Patel, and fired Tibbs.

¶9             At defendant’s December 2013 bench trial, Collins testified that, in June 2012,

defendant was living at her apartment with their daughter. Defendant and Collins were arguing;

she asked him to leave, and he refused. Defendant then picked up a pillow from the back of the

couch, moved toward Collins, and began to throw the pillow out the door. Collins pushed the

pillow down to prevent defendant from throwing it. Defendant then pushed Collins’s head,



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which hit the corner of the open door, causing a laceration. Collins ran upstairs to the bathroom

and called the police. Collins was later treated at the hospital and received staples to close the

laceration on her head.

¶ 10           On cross-examination, Collins testified that although she told the police that

defendant punched her multiple times, that is not what happened. She also admitted she was

currently being charged with filing a false police report. Collins testified that she did not believe

defendant meant to push her head into the door. Collins admitted she had communicated with

defendant by text message and told him she thought he did not mean to push her head against the

door.

¶ 11           Decatur police officer Scott Bibby responded to Collins’s apartment. He stated

that Collins had a laceration on her head. Defendant told Bibby the two were arguing and he

threw a couch cushion at Collins to get her to stop yelling. Defendant said he did not mean to hit

Collins but the cushion struck her in her head, and her head then collided with the door. Collins

told Bibby that defendant had punched her in the head multiple times.

¶ 12           An emergency room physician testified that (1) she treated Collins for a laceration

to her head, (2) the laceration required three staples to close, and (3) Collins reported the

laceration was caused by someone grabbing her head and hitting it against a door.

¶ 13           Defendant testified that he was living with Collins and their daughter in June

2012. He and Collins were arguing when she told him to leave and began throwing his

belongings out of the front door. Defendant told Collins if she was going to throw his things out,

he was going to throw his couch outside. He picked up a large seat cushion and threw it toward

the open door when it struck Collins in her head, causing her head to hit the door.

¶ 14           Patel asked defendant if Collins had stayed in contact with him. Defendant



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responded that Collins had threatened to testify against him if he did not give her money. Patel

then asked if Collins admitted to him that she thought it was an accident, and defendant said she

did.

¶ 15           During closing arguments, Patel argued the State failed to prove defendant

knowingly caused great bodily harm because Collins admitted her injury was the result of an

accident, which was also consistent with defendant’s version of events. The State argued that

(1) defendant knowingly committed battery and (2) the State did not need to prove the defendant

intended to cause great bodily harm.

¶ 16           The trial court found defendant guilty of aggravated domestic battery, explaining

that it did not find defendant’s story credible. In February 2014, the court sentenced defendant to

six years in prison. (We note that defendant had eight prior felony convictions.)

¶ 17                            B. The Postsentence Proceedings

¶ 18           In June 2014, defendant pro se filed a motion for reduction of sentence that also

raised claims of ineffective assistance of counsel. At a hearing at which defendant was not

present, the trial court dismissed defendant’s motion as untimely.

¶ 19           Defendant appealed, arguing that (1) the evidence was insufficient to prove him

guilty beyond a reasonable doubt and (2) the trial court erred when it dismissed his pro se

posttrial claims of ineffective assistance of counsel without conducting a Krankel hearing. In

July 2016, this court affirmed defendant’s conviction and sentence but remanded for a hearing in

compliance with Krankel on defendant’s posttrial claims of ineffective assistance of counsel.

Roddis, 2016 IL App (4th) 140631-U, ¶ 3.



¶ 20                             C. The Proceedings on Remand



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¶ 21                                  1. The Initial Hearing

¶ 22           In September 2016, on remand, the trial court conducted a hearing at which

defendant was present. The court stated the case had been remanded for the court to consider

defendant’s claims of ineffective assistance of counsel. The court then asked defendant if he was

going to represent himself “on this matter or do you want me [to] consider[ ] appoint[ing]

counsel?” Defendant responded that he wanted the court to consider appointing counsel but was

told by his appellate attorney that it was in the court’s discretion based on the merits of his

claims. The court then stated, “I’m not sure counsel is necessary, but I think counsel is always

better, at least to perhaps to get me organized.” The court asked the State if it disagreed, and the

State said it thought “it[ ] [was] a good idea.” The trial court appointed public defender Rodney

Forbes to represent defendant and continued the matter for a status hearing.

¶ 23                            2. The Subsequent Status Hearings

¶ 24           Later in September 2016, Forbes appeared on defendant’s behalf and stated that

the case had been remanded for a Krankel hearing. The trial court then stated that the case

needed to be set for a “pre-inquiry Krankel hearing.” Forbes agreed and requested additional

time to review the file, speak with his client, and file any amended pleading if necessary. The

court granted his request and continued the matter.

¶ 25           In November 2016, Forbes appeared for defendant, who was also present

personally. The trial court recounted the procedural history of the case and then the following

exchange took place:

                       “THE COURT: [The appellate court] sent the matter back for a

               hearing in compliance with Krankel.




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       And I think, Mr. Forbes, I want to certainly allow you a chance to

speak, but I can probably proceed at this point with a pre-inquiry Krankel

hearing before I proceed to a full-blown Krankel hearing. Would you

agree with that procedural assessment, Mr. Forbes?

       MR. FORBES: Well, Your Honor, in this case I was appointed to

represent this defendant. Normally, I wouldn’t be appointed at a pre-

Krankel inquiry.

       THE COURT: Correct.

       MR. FORBES: Normally, a pre-Krankel inquiry the attorney

would be—

       THE COURT: Proceed with the prior lawyer.

       MR. FORBES: Right. And so that way the court can inquire as to

matters of strategy and such. So I know this is set for pre-Krankel inquiry

on today’s date. I was prepared to represent the defendant. I have received

several affidavits and correspondence from the defendant. I understand the

gist of his claims. He is claiming ineffective assistance of counsel from his

prior counsel, Mr. Patel.

       THE COURT: So you think we would be safer, in a nutshell, Mr.

Forbes, to probably just proceed with an ordinary Krankel hearing, I think

is what I am hearing from you?

       MR. FORBES: Well, yes, I do. And then also I need to inform the

court that as public defender, I briefly represented the alleged victim in

this case, Megan Collins. I represented her at [a] preliminary [hearing].



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               Her case was assigned to an assistant public defender. That was during

               while this case was pending.”

¶ 26           Forbes indicated that there may be a conflict. (As best we can tell, Forbes’s

representation of Collins was unconnected with the charges against defendant.) The trial court

commented that Patel was not present and, in order to properly conduct the hearing, he would

need to appear. Forbes then moved to withdraw until the court would conduct a hearing to

determine if new counsel was required.

¶ 27           The trial court asked defendant if he had a position regarding Forbes’s

withdrawing. Defendant stated that he “would like to ask him to represent me because he

understands my case.” Nonetheless, the court granted Forbes’s motion to withdraw over

defendant’s objection and noted that it believed it could proceed with a “pre-inquiry Krankel”

hearing without Forbes’s representing defendant. The court then discussed with the parties how

Patel’s presence at the next hearing would be secured.

¶ 28           Finally, the trial court explained to defendant what would take place at the next

hearing. The court stated it had “to get through one step before Mr. Forbes’ involvement in this

case becomes necessary.” The court added that at the next hearing, defendant would be allowed

to elaborate on the claims raised in his motion alleging ineffective assistance of counsel. Then

Patel would be allowed to respond. The State would be present, but the State’s “involvement on

that date is to be almost nothing.” The court further stated that if it found the allegations directed

at Patel were “well-grounded,” then either Forbes or someone else would be appointed to

represent defendant.

¶ 29                               3. The January 2017 Hearing

¶ 30           In January 2017, the trial court conducted what it called a “pre-inquiry Krankel”



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hearing. At the hearing, defendant was present pro se, as were his earlier trial attorneys, Patel

and Tibbs. Also present was the prosecutor. Forbes was not present.

¶ 31           The trial court began by outlining the procedure it would follow. The court said

that it would first summarize each allegation. Then defendant would be allowed to elaborate and

trial counsel would be permitted to respond. The court then stated that after hearing from

counsel, it would “rule as to whether or not I find that there was ineffective assistance in this

situation.” The court later added that “once we determine where we are at the end of the day, if

the allegations are denied, I’ll probably go ahead and appoint you counsel *** and then we’ll

deal with the rest of your motion for reduction of sentence. If I find that the allegations are

founded, I’ll have to appoint separate counsel, and we will proceed to a full-blown Krankel

hearing.” The hearing then proceeded as described.

¶ 32           Defendant primarily contended that his trial counsel was ineffective for failing to

impeach Collins with various text messages. Defendant explained that he gave his attorney

copies of texts and emails from Collins in which she said she would speak to defendant’s lawyer

for $1000, that she had been “playing” him the whole time to get money, and that the incident

was an accident. However, Patel did not impeach Collins with these messages on cross-

examination.

¶ 33           Patel responded that, from what he remembered, he got Collins to admit she

thought her injuries were the result of an accident. Patel explained that once Collins admitted it

was an accident, he had all the impeachment he needed to show defendant did not knowingly

cause great bodily harm.

¶ 34           Defendant also alleged his counsel (1) “tricked” him into waiving his right to a

jury trial, (2) indicated that counsel personally knew the judge, and (3) assured defendant that the



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State would dismiss the charges or offer a lower plea once it saw the victim’s text messages.

Patel and Tibbs denied making any such representations.

¶ 35           Defendant then presented a letter Patel had written to the Attorney Registration

and Disciplinary Commission (ARDC) in response to a complaint defendant had made about

Patel’s failure to use Collins’s text messages in his defense. In the letter, Patel stated he

“conduct[ed] a thorough cross[-]examination of the victim, including questioning her regarding

emails and text messages.” At the hearing, Patel stated he stood by what he wrote in his letter.

¶ 36           The trial court then stated that it had considered the pleadings, the ARDC letter,

and the statements of defendant and his previous lawyers and found “the defendant’s allegations

do not amount to ineffective assistance of counsel.” Accordingly, the court would “not proceed

to a full Krankel hearing.” The court stated it thought defendant was “well represented” and that

the case was “one of credibility.” The court noted that despite the evidence that impeached

Collins’s testimony, the court found Collins credible while defendant was not. The court

concluded, “I’m satisfied that you were properly represented” and found again “that there was no

ineffective assistance.”

¶ 37           Nonetheless, the court appointed the public defender to represent defendant on the

remainder of his posttrial motion, which was a motion to reduce sentence.

¶ 38                              4. The Remaining Proceedings

¶ 39           In July 2017, defendant’s new counsel filed an amended motion for reduction of

sentence, arguing the trial court erred by failing to consider the financial impact when it

sentenced defendant. In August 2017, the trial court denied defendant’s amended motion.

¶ 40           This appeal followed.




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¶ 41                                       II. ANALYSIS

¶ 42           Defendant appeals, arguing that the trial court erred by (1) addressing the merits

of his ineffective assistance claims instead of determining whether counsel should have been

appointed and (2) not appointing new counsel because defendant showed “possible neglect of the

case.” We agree with defendant’s first argument, vacate the trial court’s order, and remand with

directions.

¶ 43           The record in the present case reveals that the trial court misunderstood both the

purpose of a Krankel hearing and how one should be conducted. Because we have seen too many

cases in which trial courts suffer from the same confusion, we believe a thorough discussion of

Krankel hearings might be helpful.

¶ 44                                    A. Krankel Hearings

¶ 45           In Krankel, the defendant filed pro se a posttrial motion, alleging his trial counsel

was ineffective for failing to contact an alibi witness or present an alibi defense at trial. Krankel,

102 Ill. 2d at 187. The defendant personally argued his pro se motion, which the trial court

denied. Id. at 188-89. On appeal, the State conceded that the defendant should have had new

counsel represent him on the motion. Id. at 189. The supreme court agreed and remanded the

case for a new hearing on the motion with different counsel to determine whether the defendant

was denied the effective assistance of counsel. Id.

¶ 46                                   1. The Krankel Inquiry

¶ 47           The common law procedure first recognized in Krankel “serves the narrow

purpose of allowing the trial court to decide whether to appoint independent counsel to argue a

defendant’s pro se posttrial ineffective assistance claims.” (Emphasis added.) People v. Patrick,

2011 IL 111666, ¶ 39, 960 N.E.2d 1114. Thus, “a Krankel hearing is a term of art to describe the



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hearing the court must conduct when a defendant pro se has raised a posttrial claim regarding his

counsel’s ineffective assistance.” People v. McGath, 2017 IL App (4th) 150608, ¶ 51, 83 N.E.3d

671. The only issue to be decided at a Krankel hearing is whether new counsel should be

appointed. Id.; Patrick, 2011 IL 111666, ¶ 39. Accordingly, there are only two possible

outcomes when a trial court conducts a Krankel hearing: (1) the court appoints new counsel who

should then conduct an independent investigation into the defendant’s ineffective assistance

claims and take whatever action counsel thinks would be appropriate or (2) the court does not

appoint new counsel and posttrial matters proceed as in any other case. Accordingly, at a

Krankel hearing, the trial court does not—and cannot—reach the merits of an ineffective

assistance claim; the court simply determines whether it is appropriate to appoint new counsel

for the defendant to investigate such claims.

¶ 48           The “preliminary inquiry” to which Krankel cases sometimes refer is the

preliminary inquiry into the factual basis, if any, of a defendant’s claims of ineffective assistance

of counsel to determine whether appointing new counsel to pursue those claims is necessary. The

Illinois Supreme Court recently affirmed this principle in People v. Ayres, 2017 IL 120071, ¶ 24,

88 N.E.3d 732, holding as follows:

                     “The purpose of the preliminary inquiry is to ascertain the underlying

               factual basis for the ineffective assistance claim and to afford a defendant an

               opportunity to explain and support his claim. In this way, the circuit court will

               have the necessary information to determine whether new counsel should be

               appointed to argue the claim of ineffective assistance of counsel.” (Emphasis

               added.)

See also Patrick, 2011 IL 111666, ¶ 43 (“The trial court was required to conduct a preliminary



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inquiry into the factual basis of defendant’s [ineffective assistance] allegations.”). If the

appointment of new counsel is warranted, determining whether the defendant actually received

ineffective assistance of counsel is for another day; the court does not reach the merits of such

claims at the Krankel hearing.

¶ 49           Though occasionally mentioned in some cases, there is no true second stage or

subsequent Krankel inquiry because the sole issue to be resolved at a Krankel hearing is whether

new counsel should be appointed. Id. ¶ 39. Once the trial court determines whether to appoint

new counsel, the Krankel inquiry is over; if the court appoints new counsel, the case proceeds

regarding the defendant’s claims of ineffective assistance as determined by new counsel. Id.

¶ 50           The supreme court explained its rationale for limiting the Krankel hearing to this

narrow purpose in People v. Jolly, 2014 IL 117142, ¶ 38, 25 N.E.3d 1127. In that case, the court

addressed the proper scope of the State’s participation in a Krankel hearing and concluded that it

is reversible error to permit the State to respond to the defendant’s pro se claims or otherwise

adversarially participate in a Krankel hearing. Id. In reaching that conclusion, the court described

the Krankel hearing as “neutral and nonadversarial” and an opportunity for the trial court to

“initially evaluate” a defendant’s pro se claims. Id. ¶¶ 38-39. This initial and nonadversarial

evaluation is not the forum at which the merits of a claim of ineffective assistance of counsel are

resolved. See id.

¶ 51           Courts have used the terms “Krankel hearing,” “Krankel inquiry,” “preliminary

Krankel inquiry,” and words to that effect interchangeably; this lack of consistency may be

responsible for some of the confusion that exists, as seen in the proceedings in this case. The

narrow and proper function of a Krankel hearing becomes clear when contrasted with a situation

in which a defendant, who hires new counsel, files a posttrial motion alleging ineffective



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assistance of his original trial counsel. In such instances, no Krankel hearing is necessary

because the defendant is already represented by counsel to investigate and appropriately pursue

the defendant’s claims of ineffective assistance of trial counsel. In those cases, courts routinely

conduct hearings—at which both the defense and State fully participate—on the merits of those

motions. And no Krankel hearing is necessary because the sole question at a Krankel hearing is

whether the court should appoint the defendant new counsel to investigate and pursue the

defendant’s ineffective assistance claims. When the defendant already has hired new counsel to

do that, the issue of the court’s appointing counsel simply does not exist.

¶ 52           Perhaps terms like “preliminary Krankel hearing” arose because the question of

the appointment of counsel to pursue pro se claims of ineffective assistance is necessarily

preliminary to the consideration of such claims on their merits. Whatever the reason, the function

of the Krankel hearing remains simply to decide whether to appoint counsel—its “narrow

purpose” (Patrick, 2011 IL 111666, ¶ 39)—and not to reach the merits of the ineffective

assistance claims. Whether the defendant is then represented by appointed or retained counsel,

the merits of an ineffective assistance claim are addressed at a subsequent hearing in which both

parties can participate. Ayres, 2017 IL 120071, ¶ 24.

¶ 53                          2. When a Krankel Hearing Is Required

¶ 54           A Krankel hearing is required “when a defendant raises a pro se posttrial claim of

ineffective assistance of trial counsel.” Id. ¶ 11. The supreme court recently clarified what little a

defendant must do:

               “ ‘[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[, 797 N.E.2d

               631] (2003); [citation]), and thus, a defendant is not required to file a written



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               motion (Patrick, 2011 IL 111666, ¶ 29[, 960 N.E.2d 1114]) but may raise the

               issue orally (People v. Banks, 237 Ill. 2d 154, 213-14[, 934 N.E.2d 435] (2010))

               or through a letter or note to the court (People v. Munson, 171 Ill. 2d 158, 200[,

               662 N.E.2d 1265] (1996)).” Id.

¶ 55           Further, although a defendant’s bare assertion of “ ‘ineffective assistance of

counsel’ ” is sufficient to trigger a Krankel hearing (id. ¶ 23), the defendant must nevertheless

clearly state that he is asserting a claim of ineffective assistance of counsel. Id. ¶ 18.

Accordingly, “[i]n instances where the defendant’s claim is implicit and could be subject to

different interpretations, a Krankel inquiry is not required.” People v. Thomas, 2017 IL App (4th)

150815, ¶ 26, 93 N.E.3d 664 (finding a hearing was not required where defendant failed to

mention attorney in his letter to trial court complaining about sentence); People v. King, 2017 IL

App (1st) 142297, ¶ 20, 80 N.E.3d 599 (Krankel not implicated when defendant, without

mentioning her attorney, claimed error because a witness was not called).

¶ 56           A Krankel issue may be raised any time after a conviction but before the trial

court’s judgment is final. The issue is most commonly raised between conviction and sentencing,

but need not be. For instance, a defendant, as in the present case, may raise that claim on a

motion to reconsider sentence.

¶ 57                             3. Krankel Hearing Proceedings

¶ 58           A defendant is not automatically entitled to appointed counsel when he files

pro se a motion asserting ineffective assistance of counsel. Ayres, 2017 IL 120071, ¶ 11. “Rather,

‘[t]he law requires the trial court to conduct some type of inquiry [i.e., a Krankel inquiry] into the

underlying factual basis, if any, of a defendant’s pro se posttrial claim of ineffective assistance of

counsel.’ ” Id. (quoting People v. Moore, 207 Ill. 2d 68, 79, 797 N.E.2d 631, 638 (2003)).



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¶ 59           Initially, it often is a sound practice for the trial court to discuss the allegations

with the defendant in open court. Because the function of the Krankel hearing is to give the

defendant an opportunity to flesh out his claim of ineffective assistance (Ayres, 2017 IL 120071,

¶ 20), asking the defendant about his claims provides clarity for the record and thereby limits the

issues on appeal. Id. ¶ 13. In addition, “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.” (Internal quotation marks omitted.) Id. ¶ 12. For that reason, the trial court is

allowed to ask the defendant’s trial counsel to comment on the defendant’s allegations. Id. The

trial court may also rely upon “its knowledge of defense counsel’s performance at trial and the

insufficiency of the defendant’s allegations.” Id.

¶ 60           What the trial court may not do, however, is seek input from the State on the

merits of the defendant’s pro se claims of ineffective assistance of counsel. Jolly, 2014 IL

117142, ¶ 38. Doing so converts this initial and nonadversarial proceeding into a contested

hearing on the merits—a hearing at which the defendant would necessarily be forced to prove the

merits of his claims pro se against the arguments of the State’s Attorney. Such a hearing “cannot

reveal, in an objective and neutral fashion, whether the circuit court properly decided that a

defendant is not entitled to new counsel.” Id. ¶ 39.

¶ 61                       4. When New Counsel Should Be Appointed

¶ 62           As shown by the record in this case, trial courts and counsel are sometimes

confused regarding the purpose of a Krankel hearing, thinking the issue to be resolved is whether

the defendant in fact ultimately received ineffective assistance of counsel. As explained earlier,

this view is not correct. Instead, the sole issue to be resolved by a Krankel hearing is whether the



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court should appoint new counsel for a defendant so that the new counsel can take whatever

action regarding defendant’s claim of ineffective assistance that counsel thinks would be

appropriate.

¶ 63            “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.”

(Internal quotations marks omitted.) Ayres, 2017 IL 120071, ¶ 11.

¶ 64           It bears mentioning that the purpose of appointing counsel pursuant to Krankel is

for new counsel to investigate the defendant’s pro se claims of ineffective assistance of trial

counsel—not to pursue other claims of error, like those commonly raised in posttrial motions.

¶ 65            Although courts have not clearly defined when a pro se ineffective assistance

claim “lacks merit,” the supreme court, in People v. Johnson, 159 Ill. 2d 97, 126, 636 N.E.2d

485, 498 (1994), did conclude that the defendant in that case “did not bring to the trial court’s

attention a colorable claim of ineffective assistance of counsel.” In reaching that conclusion, the

supreme court found that the defendant’s various allegations were conclusory, misleading, and

legally immaterial. Id. A review of the case law since Johnson was decided reveals that there are

generally four primary ways a trial court, when conducting a Krankel inquiry, may conclude that

an ineffective assistance claim “lacks merit” so that the court need not appoint new counsel to

pursue the defendant’s ineffective assistance claim. Those four primary ways are when the court

determines that the defendant’s ineffective assistance claim is (1) conclusory, (2) misleading,

(3) legally immaterial, or (4) pertaining solely to an issue of trial strategy. See, e.g., Johnson, 159

Ill. 2d at 126; Moore, 207 Ill. 2d at 78. We address each in turn.




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¶ 66                                      a. Conclusory

¶ 67           Following the supreme court’s recent decision in Ayres, it is unclear when a

defendant’s pro se posttrial claim of ineffective assistance of counsel may be so conclusory that

a Krankel hearing is not required. Nonetheless, we believe the following rule applies: An

allegation is conclusory when a defendant is unable to add any additional factual basis to support

his bare allegation from which a court could infer a basis in support of an ineffective assistance

claim. People v. Munson, 171 Ill. 2d 158, 201, 662 N.E.2d 1265, 1284 (1996).

¶ 68           For instance, in People v. Towns, 174 Ill. 2d 453, 467, 675 N.E.2d 614, 620-21

(1996), the defendant’s allegations were properly deemed conclusory because he claimed his

counsel should have investigated “relevant facts and witnesses,” but defendant offered no

explanation as to what or to whom he was referring. Similarly, in Munson, the defendant stated

he was claiming ineffective assistance of counsel, but, despite the trial court’s making “every

effort to ascertain the nature and substance of defendant’s ineffectiveness claim,” the defendant

“provided neither a basis nor facts from which the court could infer a basis in support of such

claim.” Munson, 171 Ill. 2d at 201.

¶ 69                                      b. Misleading

¶ 70           A claim is misleading—and therefore lacks merit—when the record clearly rebuts

or contradicts the substance of the allegations, demonstrating that the claim for ineffective

assistance is unsupported. In Johnson, the defendant claimed his attorneys failed to investigate

police misconduct, including that he was beaten and that a witness lied under oath. Johnson, 159

Ill. 2d at 126. However, the record revealed that trial counsel presented significant evidence of

the alleged police misconduct and, contrary to the defendant’s claims, the witness admitted to the

very fact defendant claimed he lied about. Id. at 126-28.



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¶ 71           A claim may also be misleading when the inquiry at the Krankel hearing reveals

that the defendant’s assertions are false and do not support a claim of ineffectiveness. For

example, a defendant may claim to have an exculpatory witness whom his counsel failed to

present. However, after an inquiry at the Krankel hearing, the court may learn (from defense

counsel or defendant) that the witness’s testimony was (1) not helpful to the defendant or

(2) contrary to his claims. See People v. Nitz, 143 Ill. 2d 82, 135, 572 N.E.2d 895, 919 (1991)

(court determined that witnesses’ testimony was not in accord with defendant’s representations

and was actually inapposite to his claims).

¶ 72                                  c. Legally Immaterial

¶ 73           If a claim that is taken as true, either on its face or after inquiry, would still not

support a finding of ineffective assistance, then it is legally immaterial. In People v. Giles, 261

Ill. App. 3d 833, 846, 635 N.E.2d 969, 979 (1994), the defendant was convicted of aggravated

criminal sexual assault and argued that his trial counsel was ineffective for not arguing the

victim’s hymen was not torn, despite the medical evidence supporting such a finding. The court

noted that only slight contact with the victim’s vagina was required to support the conviction,

and thus, the medical evidence had no bearing on counsel’s performance. Id. at 848.

¶ 74                                d. Matter of Trial Strategy

¶ 75           A claim may be meritless if it pertains solely to a matter of trial strategy. Moore,

207 Ill. 2d at 78. A claim that relates to a matter that does not fall within the definition of

ineffective assistance of counsel as provided in Strickland v. Washington, 466 U.S. 688 (1984),

is meritless. People v. Banks, 237 Ill. 2d 154, 215-16, 934 N.E.2d 435, 469 (2010). In Banks, for

example, the supreme court rejected a claim that counsel should have been appointed on

defendant’s pro se ineffectiveness claims because the claim pertained to trial counsel’s conduct



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during voir dire that is generally not subject to Strickland review. Id.

¶ 76           However, certain claims that may generally be matters of trial strategy could still

potentially support an ineffective assistance claim. In People v. Peacock, 359 Ill. App. 3d 326,

339-40, 833 N.E.2d 396, 407 (2005), the appellate court remanded for a Krankel hearing based

on the defendant’s claims that his counsel failed to call a witness and failed to ask certain

questions on cross-examination of another witness. The court in Peacock acknowledged these

matters generally pertain to trial strategy but noted that if counsel’s actions were “objectively

unreasonable, it can amount to ineffective assistance if the defendant suffered prejudice.” Id. at

340.

¶ 77           Therefore, when dealing with matters of trial strategy, the trial court at the

Krankel hearing must determine if the allegations and factual bases therefor could support a

claim that trial counsel was objectively unreasonable. If the allegations and factual bases could

support that claim, new counsel should be appointed.

¶ 78                                 5. The Standard of Review

¶ 79           “ ‘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.’ ” Ayres, 2017 IL 120071, ¶ 13 (quoting Moore, 207 Ill. 2d at 78). “The issue of

whether the circuit court properly conducted a preliminary Krankel inquiry presents a legal

question that we review de novo.” Jolly, 2014 IL 117142, ¶ 28.

¶ 80           Some courts, including this one, have remarked that “if the trial court properly

conducted the entire Krankel inquiry and reached a determination on the merits [of the

defendant’s ineffective assistance claims], we will reverse only if the trial court’s action was

manifestly erroneous.” People v. Robinson, 2017 IL App (1st) 161595, ¶ 90, 93 N.E.3d 573; see



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People v. Sims, 2014 IL App (4th) 130568, ¶ 142, 9 N.E.3d 621 (substantially the same). We

now believe these cases were not correctly decided.

¶ 81           We hold that a trial court commits reversible error when it conducts a Krankel

hearing and concludes—on the merits—that there was no ineffective assistance, and we note that

we are not the first court to so conclude. See People v. Fields, 2013 IL App (2d) 120945, ¶ 41,

997 N.E.2d 791 (trial court violated the defendant’s right to be represented by counsel by

converting a Krankel hearing on the defendant’s pro se claim of ineffective assistance into an

adversarial proceeding); People v. Cabrales, 325 Ill. App. 3d 1, 5-6, 756 N.E.2d 461, 465 (2001)

(trial court erred by proceeding to full hearing on the merits of the defendant’s pro se claims

instead of conducting a fact-gathering investigation).

¶ 82           We mentioned earlier that a thorough discussion of Krankel hearings might be

helpful because we have seen too many cases in which trial courts have misunderstood the

purpose of Krankel and how a Krankel hearing should be conducted (supra ¶ 43). Sometimes the

same difficulty affects the appellate court.

¶ 83           In People v. Jackson, 2018 IL App (5th) 150274, ¶¶ 107-22, the Fifth District

recently addressed a defendant’s claim that the trial court failed to conduct a Krankel inquiry

regarding the defendant’s claims of ineffective assistance of his trial counsel. The Fifth District

in Jackson did not review the trial court’s handling of the Krankel inquiry (in which the sole

question is whether the trial court received sufficient information from which to decide whether

counsel should be appointed to investigate the defendant’s pro se claim of ineffective assistance)

but instead reviewed the record and concluded on the merits that the defendant did not receive

ineffective assistance of counsel during his trial. Id. In doing so, the appellate court rejected the

defendant’s ineffective assistance claim, despite the fact that the defendant did not have the



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assistance of counsel to investigate and argue that claim before the trial court. Id. Accordingly,

we respectfully disagree with the analysis and conclusion the Fifth District reached in Jackson.

¶ 84                                 B. The Facts of This Case

¶ 85            In this case, at the first hearing after remand, the trial court appointed counsel for

defendant on his pro se motion to reduce sentence. Once the court appointed counsel, no reason

existed for the court to conduct any further hearings pursuant to Krankel; instead, the case should

have proceeded based upon whatever action defendant’s new counsel might choose to take

regarding defendant’s ineffective assistance claims. Further inquiry pursuant to Krankel was not

appropriate at that point because the sole issue to be decided at a Krankel hearing is whether to

appoint counsel. As soon as the court decided to appoint counsel, not only was a Krankel hearing

not called for, but the court’s purportedly conducting one made no sense. Indeed, the case should

have continued the same way it would have if defendant had hired private counsel to assert the

same claims.

¶ 86           We also note that the trial court at one point reconsidered its appointment of new

counsel, apparently believing (incorrectly) that the court was required to conduct a hearing at

which defendant and his trial counsel could appear and address defendant’s claims of ineffective

assistance.

¶ 87           Although the vast majority of cases in which a defendant pro se raises a claim of

ineffective assistance of trial counsel will (and likely should) proceed to a Krankel hearing with

trial counsel present, doing so is not necessarily required in every case. After a trial court reviews

a pro se motion or letter alleging ineffective assistance of counsel, the court may conclude that

the allegations on their face have sufficient merit to justify the appointment of counsel. New

counsel would then take whatever action counsel might deem appropriate regarding the



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defendant’s claim of ineffective assistance.

¶ 88           Here, the trial court erred when it conducted the January 2017 hearing by

addressing the merits of defendant’s ineffective assistance claim without appointing new counsel

for defendant. The record clearly demonstrates the court, believing it was conducting a Krankel

hearing, ruled on the merits of defendant’s ineffective assistance claims. Indeed, the trial court

indicated as much, stating that it would “rule as to whether or not I find that there was ineffective

assistance in this situation,” as well as the court’s later findings at that hearing that “the

defendant’s allegations do not amount to ineffective assistance of counsel” and “I’m satisfied

you were properly represented, *** and there was no ineffective assistance.” The court reached

the wrong result because it made the wrong inquiry.

¶ 89           Multiple parties suffered prejudice as a result of the trial court’s error. First and

foremost, defendant was prejudiced because he did not have counsel to help him argue that his

allegations did in fact rise to the level of ineffective assistance. Defendant thought (indeed, was

told by the court) that the court was evaluating his claims for potential merit and whether an

evidentiary hearing should be conducted at a later date. Then the court in fact conducted that

evidentiary hearing and forced defendant to argue the merits of his motion without his even

being aware that they were being considered.

¶ 90           Additionally, the State is prejudiced when a trial court evaluates the merits of a

defendant’s claims of ineffective assistance without the State’s being allowed to comment or

argue. The supreme court has emphasized that the State is not allowed to have any more than

de minimis input at a Krankel hearing. Jolly, 2014 IL 117142, ¶ 38. The reason for this unique

prohibition is simple: no rights are being adjudicated. Id. No rights are being adjudicated because

the sole matter addressed at a Krankel hearing is whether the court should appoint new counsel



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for the defendant on his claim of ineffective assistance of trial counsel. Id. The State, just like a

defendant, always suffers the risk of prejudice when a court adjudicates the merits of an issue

without permitting the State to argue its position.

¶ 91                  C. How a Krankel Hearing Should Proceed on Remand

¶ 92            Given that the trial court in this case misunderstood how to proceed with a

Krankel inquiry following the earlier remand from this court, and given further that remands to

trial court to conduct Krankel hearings happen with some regularity, we clarify the proper steps

to take. (We note that these steps are also the ones a trial court should take in the first instance.)

¶ 93            First, when a case is remanded for a Krankel hearing, the trial court should not

automatically appoint new counsel for the defendant. In the usual case, the appellate court

remands for a Krankel hearing because the record is inadequate. Therefore, on remand, the trial

court should familiarize itself with the defendant’s claims of ineffective assistance and review

any written submissions, as well as any transcripts of the proceedings if the allegations were

raised orally. Then, in the usual case, the court should require the attendance of the defendant’s

trial counsel at the Krankel hearing.

¶ 94            Once the State, defendant, and defendant’s trial counsel are present, the court

should review the allegations and ask the defendant if he has anything to add, thereby giving the

defendant the opportunity to clarify or expand upon his previous claims. Then, the court should

allow defendant’s trial counsel to respond. In evaluating the defendant’s claim, the court may ask

any questions of defense counsel or defendant the court believes to be helpful. The court should

not allow the State to respond or participate during the Krankel hearing.

¶ 95            After the court has engaged in what it believes to be an adequate inquiry into the

defendant’s claims, it should determine whether new counsel should be appointed to pursue the



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defendant’s claim of ineffective assistance as determined by new counsel.

¶ 96                         D. Comparison to Postconviction Petitions

¶ 97           Although the standards are not identical, in order to illustrate the type of inquiry

in which trial courts should engage, we believe the evaluation made at Krankel hearings is

similar to one trial courts routinely make at the first stage of postconviction petitions. Trial courts

are familiar with the well-established principles for evaluating postconviction petitions at the

first stage, so courts may find it helpful to think of Krankel hearings in a similar fashion.

¶ 98           Postconviction petitions provide a good basis for comparison because, like

Krankel inquiries, they are the most common of very few instances when the trial court exercises

its judgment in a criminal case without input from the State. Additionally, both circumstances

typically involve a defendant’s pro se claims (indeed, typically ineffective assistance claims),

and the trial court is asked to evaluate the viability of those claims.

¶ 99           The three stages of postconviction petitions are familiar and well settled. In the

first stage, the trial court is required to review the petition and determine if it is “frivolous or

patently without merit,” that is, “the petition has no arguable basis either in law or in fact.”

People v. Tate, 2012 IL 112214, ¶ 9, 980 N.E.2d 1100. At this first stage, the court should

conduct its evaluation of the postconviction petition without any input from the State. People v.

Turner, 2012 IL App (2d) 100819, ¶ 18, 972 N.E.2d 1205. In order to survive the first stage, a

defendant is required to state the “gist of a constitutional claim.” (Internal quotation marks

omitted.) People v. Hodges, 234 Ill. 2d 1, 9, 912 N.E.2d 1204, 1208 (2009). If the court finds a

pro se defendant has met this low threshold, it appoints counsel to further evaluate the matter and

amend the petition if necessary. Tate, 2012 IL 112214, ¶ 10. (We hasten to add that we are

simply pointing to the postconviction context for its illustrative value and not suggesting that the



                                                - 24 ­
“gist” standard applies in a Krankel context.) The State is then allowed to participate, and the

matter can proceed to an evidentiary hearing on the merits. Id. (Unlike postconviction

proceedings, the State cannot move to dismiss a claim alleging ineffective assistance under

Krankel.)

¶ 100          In this way, Krankel hearings are comparable to first-stage postconviction

proceedings, except the trial court is permitted to (and in most cases probably should) conduct an

inquiry into the facts behind a defendant’s claims of ineffective assistance. In determining

whether to appoint counsel, the court determines whether a defendant has stated a sufficient basis

for the appointment of counsel. In both instances, trial courts are being asked to weed out

“patently frivolous” or “spurious” claims. As a result, after a Krankel hearing, the trial court

should decline to appoint new counsel when the defendant’s claims lack support (that is, after

asking a defendant to elaborate, the defendant fails to identify facts to support his claims or such

facts are affirmatively contradicted by the record or legally immaterial) or are solely matters of

trial strategy (for example, when to introduce a particular piece of evidence or testimony).

¶ 101                                  III. CONCLUSION

¶ 102          Because this appeal is the second time this court has addressed these issues in this

case, in the interests of judicial economy, we remand with directions to appoint new counsel for

defendant, so that the new counsel may take whatever action the new counsel deems appropriate

regarding defendant’s pro se claims of ineffective assistance of counsel.

¶ 103          For the reasons stated above, we reverse the trial court’s judgment and remand

with directions.

¶ 104          Reversed and remanded with directions.




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