                             ILLINOIS OFFICIAL REPORTS
                                           Appellate Court




                           People v. Washington, 2012 IL App (2d) 101287




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      BRANDON A. WASHINGTON, Defendant-Appellant.



District & No.               Second District
                             Docket No. 2-10-1287


Filed                        May 22, 2012


Held                         Defendant’s conviction for attempted first-degree murder was affirmed
(Note: This syllabus         over his contention that the trial court failed to consider his pro se pretrial
constitutes no part of       motion alleging ineffective assistance of counsel based on an alleged
the opinion of the court     violation of the requirements of section 109-3.1(b) of the Code of
but has been prepared        Criminal Procedure that felony defendants be indicted or receive a
by the Reporter of           preliminary hearing within 30 days of being taken into custody, since
Decisions for the            although counsel’s failure to move to dismiss based on the violation was
convenience of the           not exempt from the prejudice requirement of Strickland, the trial court,
reader.)
                             pursuant to Jocko, did not have to consider the claim until after the trial,
                             and after trial there was nothing suggesting prejudice from the delayed
                             indictment.


Decision Under               Appeal from the Circuit Court of De Kalb County, No. 06-CF-268; the
Review                       Hon. Robbin J. Stuckert, Judge, presiding.



Judgment                     Affirmed.
Counsel on                 Thomas A. Lilien and Paul J. Glaser, both of State Appellate Defender’s
Appeal                     Office, of Elgin, for appellant.

                           Clay Campbell, State’s Attorney, of Sycamore (Lawrence M. Bauer and
                           David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s
                           Office, of counsel), for the People.


Panel                      PRESIDING JUSTICE JORGENSEN delivered the judgment of the
                           court, with opinion.
                           Justices McLaren and Hudson concurred in the judgment and opinion.




                                              OPINION

¶1          Defendant, Brandon A. Washington, appeals from his conviction of attempted first-
        degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2008)). He asserts that we should reverse
        because the court failed to follow the rule derived from People v. Krankel, 102 Ill. 2d 181
        (1984), which imposes a duty on the trial court to inquire into the validity of pro se posttrial
        claims of ineffective assistance of counsel and, in some circumstances, appoint counsel to
        aid the defendant with such claims. The State responds that, under the rule in People v.
        Jocko, 239 Ill. 2d 87 (2010), the court has no duty to inquire when a defendant makes a
        pretrial complaint about counsel’s performance. We hold that, under Jocko, the court’s duty
        before trial is limited to determining whether a defendant’s complaint about counsel’s
        performance falls within an exception to the prejudice requirement of Strickland v.
        Washington, 466 U.S. 668 (1984), and, if it does not fall within an exception, the court is not
        obligated to apply Krankel before trial. Here, the court made sufficient inquiry to determine
        that defendant’s complaint did not fall within any exception to the prejudice requirement; no
        error occurred. Moreover, nothing in the claims called for the court to reexamine them after
        the trial. We therefore affirm defendant’s conviction.

¶2                                       I. BACKGROUND
¶3          On May 27, 2009, the State charged defendant by complaint with attempted first-degree
        murder and aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2008)). Two
        days later, the court appointed a private attorney to represent defendant. Counsel promptly
        filed a speedy-trial demand and a motion for discovery. On July 2, 2009, counsel asked for
        “a fairly long continuance” on the basis that defendant was imprisoned on other charges. On
        September 11, 2009, a grand jury indicted defendant; as subsequently amended on July 23,
        2010, the indictment contained six counts, including the two already listed. At a mid-


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     September court date, counsel told the court that the Illinois Department of Corrections was
     scheduled to release defendant in about 90 days. On that basis, the court gave him a status
     date of March 25, 2010.
¶4       Defendant did not appear at that status date; he was no longer in custody. As of April 1,
     2010, he was in jail, having been arrested on a new warrant.
¶5       On May 25, 2010, defendant filed a pro se motion asserting that counsel was ineffective
     because he failed to hold the State to the 30-day deadline of section 109-3.1(b) of the Code
     of Criminal Procedure of 1963 (Code) (725 ILCS 5/109-3.1(b) (West 2008)). That section
     requires that, within 30 days of being taken into custody, a felony defendant either be
     indicted or receive a preliminary examination. Failing that, a defendant can move for
     dismissal of the complaint under section 114-1(a)(11) of the Code (725 ILCS 5/114-1(a)(11)
     (West 2008)). Dismissal under section 114-1(a)(11) is not a bar to the State’s refiling of the
     charges. 725 ILCS 5/114-1(e) (West 2008). Defendant also alleged that counsel had failed
     to arrange for him to be writted in for a July 2, 2009, status date that occurred while
     defendant was serving an earlier-imposed sentence. Nothing occurred on that date, but, in
     his motion, defendant objected to the further continuance of his case. Finally, he asserted that
     counsel had not shown him any of the material that the State had produced in discovery.
¶6       On May 27, 2010, counsel apologized to defendant for not having been to see him;
     counsel was under the misapprehension that defendant was jailed in another county. The
     court told counsel and the State that defendant had filed the pro se motion, and counsel
     responded by asking the court to continue the matter so that he and defendant could “talk
     about it.” The court said that, because of its schedule, a continuance would have to be for
     more than a week. Defendant told the court that he did not want any more continuances.
     Counsel then asked for a trial date; the court set a date of August 9, 2010. No further mention
     was made of defendant’s motion. Defendant later agreed personally to a continuance of
     slightly more than a month; this was after the court agreed to the joinder of this case with
     another one stemming from the same shooting.
¶7       Defendant had a jury trial that began on September 13, 2010. The victim of the shooting,
     Jason Johnson, testified. He identified defendant as the person who had shot him while he
     was in a group of people gathered in a parking lot. Defendant said something disrespectful,
     Johnson tried to deflect it, defendant left, and a few minutes later he returned and shot
     Johnson in the face. Johnson had seen defendant perhaps twice before the shooting, but did
     not know him by name. He identified defendant in a photo lineup while he was hospitalized
     with the gunshot wound. Johnson had been at a party before he went out and met the group.
     He had drunk what he described as “two cups” of vodka during the party. When he was shot,
     the alcohol was affecting him, but he did not think that he was drunk.
¶8       Miguel Espinoza testified that a friend had received a text message that there was about
     to be a fight nearby. He found a group of people, among whom was defendant, whom he
     knew. He saw defendant lift his right hand and then heard a “pow.” People scattered, and he
     ran away. He later identified defendant in a photo lineup.
¶9       A De Kalb police officer testified that, after witnesses had identified defendant in the
     lineups, the police learned that defendant had been seen in Aurora. When the police


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       approached defendant in Aurora, he fled on foot, but was taken into custody.
¶ 10       Jessica Contreras, the mother of defendant’s child, testified that she went to a laundromat
       on the afternoon after the shooting to give defendant’s child to defendant’s mother, Sophia
       Thomas. While she was talking with Thomas, defendant came in acting nervous and saying
       that “the cops” were after him. He said that he had shot and possibly killed someone.
       Jessica’s aunt, Martha Contreras, who worked in the laundromat and was present when
       defendant came in, gave testimony confirming that defendant had said that he had shot
       someone.
¶ 11       After the State rested, the defense presented the testimony of two witnesses. Thomas
       testified that, on the afternoon after the shooting, she went to the laundromat with defendant.
       She was present for all of defendant’s conversation with Jessica. She did not hear defendant
       say that he had shot someone or make any other incriminating statement.
¶ 12       David Mack also testified for defendant. He believed that he had been present at the time
       and location of the alleged shooting, but he had seen nothing unusual.
¶ 13       The defense rested after the testimony of the two witnesses. The jury found defendant
       guilty of attempted first-degree murder, further finding that defendant personally discharged
       a firearm that proximately caused great bodily harm. It also found him guilty on all other
       counts.
¶ 14       The court determined that all other convictions merged into the attempted murder
       conviction that specified that defendant had personally discharged a firearm. It denied a
       posttrial motion from defendant that asserted that it had erred in refusing to excuse certain
       potential jurors for cause and in barring defense exhibits. Defendant made no further
       allegations of ineffective assistance of counsel. The court sentenced defendant to 38 years’
       imprisonment. Defendant did not file a postsentencing motion, but filed a timely notice of
       appeal.

¶ 15                                        II. ANALYSIS
¶ 16       On appeal, defendant’s sole argument is that, under the rule in Krankel, the court had a
       duty to inquire into the validity of the claims that defendant raised in his pro se pretrial
       motion. We conclude that, under the rule in Jocko, the circumstances did not call for any
       investigation beyond reading the motion to determine whether it suggested the applicability
       of any exception to Strickland’s prejudice requirement. The motion suggested no such
       exception and, after the trial, no prejudice was evident. Thus, nothing in defendant’s claims
       required the court to revisit the motion posttrial.
¶ 17       The question of whether a court has given proper attention to a defendant’s pro se motion
       claiming ineffective assistance of counsel is a legal question. See People v. Moore, 207 Ill.
       2d 68, 75 (2003). We decide the answer to such a “legal question independently of the trial
       court’s judgment.” Id.
¶ 18       Under the rule in Krankel, when a defendant, acting pro se, raises a posttrial claim that
       counsel has been ineffective, the court might be required to take specific steps, such as
       appoint new counsel to aid the defendant in developing the claim. Krankel, 102 Ill. 2d at 189.


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       However, the Krankel rule has long been limited in that the court need not appoint new
       counsel if its examination of the claim shows that it is “without merit or related to a matter
       of trial tactics.” People v. Crane, 145 Ill. 2d 520, 533 (1991).
¶ 19        The supreme court summarized the fully developed rule in Moore:
            “New counsel is not automatically required in every case in which a defendant presents
            a pro se posttrial motion alleging ineffective assistance of counsel. Rather, when a
            defendant presents a pro se posttrial claim of ineffective assistance of counsel, the trial
            court should first examine the factual basis of the defendant’s claim. If the trial court
            determines that the claim lacks merit or pertains only to matters of trial strategy, then the
            court need not appoint new counsel and may deny the pro se motion. However, if the
            allegations show possible neglect of the case, new counsel should be appointed. ***
                 The operative concern for the reviewing court is whether the trial court conducted an
            adequate inquiry into the defendant’s pro se allegations of ineffective assistance of
            counsel. [Citation.] During this evaluation, some interchange between the trial court and
            trial counsel regarding the facts and circumstances surrounding the allegedly ineffective
            representation is permissible and usually necessary in assessing what further action, if
            any, is warranted on a defendant’s claim. Trial counsel may simply answer questions and
            explain the facts and circumstances surrounding the defendant’s allegations. [Citations.]
            A brief discussion between the trial court and the defendant may be sufficient.
            [Citations.] Also, the trial court can base its evaluation *** on its knowledge of defense
            counsel’s performance at trial and the insufficiency of the defendant’s allegations on their
            face.” Moore, 207 Ill. 2d at 77-79.
       As this holding suggests, the supreme court has explicitly applied Krankel only to posttrial
       motions.
¶ 20        In Jocko, the defendant filed several pro se pretrial documents, including a motion in
       which he asserted that, because counsel had not been present for the arraignment or the bail
       hearing, he had been deprived of effective assistance of counsel. Jocko, 239 Ill. 2d at 89. The
       court placed the motion on the call, but never heard it; it never addressed or became aware
       of the other documents. Id. A jury convicted the defendant of burglary. Before the supreme
       court, the defendant asserted that “the circuit court should have conducted an inquiry into the
       various claims of deficient representation raised in his pro se documents.” Id. at 90-91. The
       supreme court held that, excluding instances where prejudice is irrelevant, a circuit court is
       not obligated to apply Krankel (i.e., address a defendant’s pro se Strickland claims) before
       trial, because Strickland claims, which require that counsel’s deficient performance affect
       the outcome and, thus, prejudice the defendant (Strickland, 466 U.S. at 687), “cannot be
       resolved prior to trial.” Jocko, 239 Ill. 2d at 92. It explained that addressing Strickland claims
       before trial is problematic because the outcome has not yet been determined and, therefore,
       it is impossible to determine if counsel’s errors affected the outcome. Id. at 93. As examples
       of situations where prejudice is irrelevant and, therefore, where the circuit court is obligated,
       prior to trial, to investigate potential sixth amendment violations, the supreme court cited
       United States v. Cronic, 466 U.S. 648 (1984), concerning complete deprivation of counsel,
       and Holloway v. Arkansas, 435 U.S. 475 (1978), concerning a court’s duty to investigate a


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       potential conflict of interest. Jocko, 239 Ill. 2d at 92.1
¶ 21        On the facts of the case, the supreme court further held that the trial court did not err in
       failing to revisit the defendant’s motion after the trial. Id. at 93. The court recognized that
       “[g]enerally a pro se defendant is not obligated to renew claims of ineffective assistance once
       they are made known to the circuit court.” Id. However, it noted that the record either flatly
       contradicted the claims that the defendant had raised in his pro se documents or reflected that
       the trial court was unaware of them; thus, it held that the trial court acted properly when it
       did not revisit the claims. Id. at 93-94.
¶ 22        Thus, based on the foregoing case law, a trial court’s duties with respect to a pretrial pro
       se filing or oral representation claiming ineffective assistance of counsel are as follows. First,
       the court, at a minimum, must review the defendant’s assertions to assess whether or not the
       court must consider the possible prejudicial effect on the outcome of the proceeding. Next,
       if the court determines that resolution of the defendant’s claims does not require that it
       consider possible prejudice (e.g., in situations where there is a potential conflict of interest
       or there has been a complete deprivation of counsel), then it must apply Krankel before trial.
       If the court determines that it must consider possible prejudice as to the outcome, then it is
       not obligated to apply Krankel before trial, although, at the end of trial, the court should
       address the defendant’s previously raised ineffective-assistance claims by conducting a
       posttrial Krankel analysis (i.e., examining the factual bases of the defendant’s claims to
       determine if they have merit and whether counsel should be appointed).
¶ 23        Following these guidelines, we conclude that, here, the court did not err in its handling
       of defendant’s motion. We consider first defendant’s claim that counsel should have filed a
       motion to dismiss for failure to indict or bring to preliminary hearing under section 109-
       3.1(b) of the Code and, second, his claims that counsel did not have him writted in for a
       hearing and had not shown him any discovery materials.
¶ 24        The failure of counsel to bring a motion to dismiss based on section 109-3.1(b) is not
       exempt from Strickland’s prejudice requirement. As we noted in People v. Youngblood, 389
       Ill. App. 3d 209, 215 (2009), any resulting dismissal would be without prejudice to the filing
       of new charges. Therefore, to make a claim of ineffective assistance of counsel based on the
       failure to file such a motion, a defendant must show prejudice based on the outcome of the
       trial, and not just the failure to get a temporary dismissal. Id. Because this claim required a
       showing of prejudice, under Jocko the court did not need to consider it until after trial. And
       after trial, nothing would have suggested prejudice from the delayed indictment. The
       allegations remained insufficient on their face, and the court did not need to inquire further.
¶ 25        Defendant’s other claims are simply not serious ineffective-assistance-of-counsel claims.
       Neither defendant’s complaint that counsel did not have him writted in from the Department
       of Corrections for a July 2, 2009, status date nor defendant’s complaint that counsel had
       failed to show him discovery materials describes deficient conduct by counsel. In any event,
       such claims did not fall into any exception to Strickland’s prejudice requirement and were


               1
                The court’s list of possible complaints that do not require a prejudice analysis (and that
       thereby trigger a pretrial Krankel inquiry) is, of course, not exhaustive.

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       thus not cognizable before trial. Nothing happened in the trial to suggest prejudice from
       delay, insufficient communication between counsel and defendant, or anything else that
       would relate to these complaints. Therefore, no reason existed for the court to revisit those
       claims after trial.

¶ 26                                   III. CONCLUSION
¶ 27      Defendant’s claims of ineffective assistance of counsel were insufficient on their face
       both when made and after trial. As defendant’s only claim of error thus fails, we affirm his
       conviction.

¶ 28      Affirmed.




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