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                              Appellate Court                            Date: 2019.07.10
                                                                         10:27:46 -05'00'



                  People v. Jindra, 2018 IL App (2d) 160225



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           PAUL E. JINDRA, Defendant-Appellant.



District & No.    Second District
                  Docket No. 2-16-0225



Filed             July 10, 2018



Decision Under    Appeal from the Circuit Court of Stephenson County, Nos.
Review            15-CM-646, 15-CM-647; the Hon. James M. Hauser, Judge,
                  presiding.



Judgment          Affirmed.


Counsel on        Michael J. Pelletier, Thomas A. Lilien, and Andrew Smith, of State
Appeal            Appellate Defender’s Office, of Elgin, for appellant.

                  Carl H. Larson, State’s Attorney, of Freeport (Patrick Delfino, David
                  J. Robinson, and Marshall M. Stevens, of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE BURKE delivered the judgment of the court, with opinion.
                  Presiding Justice Hudson and Justice Hutchinson concurred in the
                  judgment and opinion.
                                             OPINION

¶1       Following a bench trial, defendant, Paul E. Jindra, was convicted of two counts of
     disorderly conduct (720 ILCS 5/26-1(a)(1) (West 2014)) and one count of assault (id.
     § 12-1(a)) for an incident involving the “village animal catcher” and one of defendant’s cats.
     The court sentenced defendant to conditional discharge plus a fine and a fee. After defendant
     was convicted and sentenced, he filed a pro se four-sentence motion to reconsider. The only
     issue raised on appeal is whether the contents of that motion mandated that the court conduct
     a preliminary inquiry into a claim of ineffective assistance of counsel, consistent with the
     procedure set forth in People v. Krankel, 102 Ill. 2d 181, 189 (1984). We affirm.

¶2                                        I. BACKGROUND
¶3       Prior to trial, defendant’s attorney, Assistant Public Defender Travis Lutz, subpoenaed
     Brissa Cuthbertson to testify. Cuthbertson appeared for trial on the originally scheduled trial
     date. However, at the State’s request, the trial was continued to a later date. The court
     informed Cuthbertson that her subpoena was continued to the new date set for trial and
     issued her a reminder slip for the new date. On the new date set for trial, Cuthbertson failed
     to appear. Despite Cuthbertson’s absence, Lutz did not request a continuance and answered
     that the defense was ready for trial. Cuthbertson was not mentioned in any witness’s
     testimony.
¶4       The court found defendant guilty of all counts, sentenced him to one year of conditional
     discharge, and ordered him to pay a fine and a fee.
¶5       On the same day as sentencing, defendant filed a pro se motion, titled “Motion (To
     Reconsider),” based on Cuthbertson’s nonappearance. In his motion, defendant wrote the
     following:
                 “I would like the judge to reconsider this case. [T]he key witness, Brissa
             Cuphbertson [sic], did not appear in court, nor was her written statement submitted to
             the judge. The public defender was Mr. Travis Lutz. This eye witness [sic] is crucial
             to this defense.”
¶6       At the next court date, Lutz was unsure of how to proceed with the case because
     defendant had filed a pro se motion and Lutz had subsequently filed a motion for a new trial.
     Lutz informed the court that he was ready to proceed on the motion for a new trial. The court
     then reminded defendant that he was represented by counsel, that he was “not to file any
     pleadings,” and that, instead, he should do so through his counsel. Defendant responded that
     he understood. The court asked if Lutz would like time to consult with defendant about his
     motion to reconsider. Lutz responded “yes,” that he would speak to defendant, and that, “if
     that’s what we’re going to do,” Lutz would file a proper motion to reconsider.
¶7       When the court set a date to hear the motions, defendant interjected, “That’s an important
     point. New information is supplied by Brissa—Brissa Cuthbertson.” The court instructed
     defendant to speak with his attorney about that, but defendant continued, “Yes. She doesn’t
     care. She’ll come tomorrow, if you ask her. She says it was a mistake. She didn’t think she
     was supposed to show up last week.” The court again admonished defendant to speak with
     his attorney.



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¶8         At the next court date, Lutz addressed the matter of the pro se motion to reconsider. Lutz
       told the court, “I don’t think we’re looking to proceed on that in any fashion. I’d rather ask to
       proceed on the motion for new trial that I had filed.” This motion, which did not mention
       Cuthbertson, was heard and denied. Defendant timely appeals.

¶9                                            II. ANALYSIS
¶ 10        The sole issue on appeal is whether the trial court should have conducted a preliminary
       inquiry pursuant to Krankel into defendant’s alleged claim that he was denied the effective
       assistance of counsel because of counsel’s failure to secure the presence of a key witness and
       to notify the judge of the witness’s statement. Defendant’s posttrial motion stated:
                    “I would like the judge to reconsider this case. [T]he key witness, Brissa
               Cuphbertson [sic], did not appear in court, nor was her written statement submitted to
               the judge. The public defender was Mr. Travis Lutz. This eye witness [sic] is crucial
               to this defense.”
¶ 11        The State responds that no Krankel inquiry was necessary because defendant’s pro se
       motion did not make an explicit or clear complaint about counsel’s performance. The State
       maintains that defendant’s claim pertained to his belief that Cuthbertson was a necessary
       witness, with no indication that he was dissatisfied with his counsel.
¶ 12        When a defendant presents a pro se posttrial claim of ineffective assistance of counsel,
       the trial court should conduct an inquiry to examine the factual basis of the claim. People v.
       Jolly, 2014 IL 117142, ¶ 29; People v. Moore, 207 Ill. 2d 68, 77-78 (2003). If a defendant’s
       pro se allegations of ineffective assistance of counsel show possible neglect, new counsel is
       appointed to represent the defendant in a full hearing on his claim. Moore, 207 Ill. 2d at 78.
¶ 13        However, if a defendant does not sufficiently raise an ineffective assistance claim, he
       does not trigger the need for the trial court to inquire. People v. Taylor, 237 Ill. 2d 68, 75-77
       (2010).
¶ 14        Recently, the supreme court in People v. Ayres, 2017 IL 120071, considered whether the
       defendant’s bare allegation of “ineffective assistance of counsel” contained in a motion to
       withdraw his guilty plea and vacate his sentence was sufficient to trigger the trial court’s duty
       to conduct a preliminary Krankel inquiry, even though the allegation lacked any explanation
       or supporting facts. Id. ¶ 18. The court concluded that a defendant’s “clear claim asserting
       ineffective assistance of counsel, either orally or in writing, *** is sufficient to trigger the
       trial court’s duty to conduct a Krankel inquiry.” Id. Thus, to be sufficient, the complaint must
       be clear.
¶ 15        We must determine therefore whether defendant did enough to trigger the trial court’s
       duty to inquire. In other words, whether defendant brought a clear claim to “the court’s
       attention.” Id. ¶ 24. We find that defendant’s statements fell short of a clear claim of
       ineffective assistance of counsel that would trigger the trial court’s duty to conduct a
       preliminary Krankel inquiry.
¶ 16        Defendant never stated, orally or in writing, that counsel was ineffective. Although
       defendant’s motion mentioned his counsel, it is unclear that defendant, in fact, was
       complaining about counsel. In short, defendant failed to make a clear claim asserting
       ineffective assistance of counsel sufficient to prompt the court’s duty to conduct a Krankel
       inquiry.


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¶ 17        In People v. Thomas, 2017 IL App (4th) 150815, ¶ 31, the court held that the defendant
       was not entitled to a Krankel inquiry. The defendant did not mention his counsel in his letter
       to the trial court or reference his counsel in any way. In addition, by the time it received the
       defendant’s letter, the trial court was aware that both parties had been operating under the
       misconception that the defendant’s charges were subject to sentencing at 85%, and the
       defendant was present when the State and the defendant’s counsel learned of the error. Thus,
       the defendant’s letter, wherein he stated that he would not have entered his plea if he had
       known that he could have received 50% if he had gone to trial, “could have easily appeared
       to be his hoping to somehow get another chance at a lesser sentence.” Id. ¶ 27. As he made
       no mention of his counsel, or any assertion of ineffective assistance, the letter was subject to
       many interpretations, including the defendant’s ex post facto regret at not taking the State’s
       alleged offer. Id. ¶ 28.
¶ 18        In Taylor, the defendant stated during allocution that he did not take a previously
       tendered plea deal only because “ ‘I had no idea what I was facing’ ” and that “ ‘I would
       [have] jumped into it with both feet if I knew that I was facing this type of situation.’ ”
       Taylor, 237 Ill. 2d at 73. There was nothing in the defendant’s statement specifically
       informing the court that he was complaining about his attorney’s performance. Nor did the
       defendant even mention his attorney. Further, because his statement was “rambling,” it was
       “amenable to more than one interpretation.” Id. at 77. According to the State, the statement
       merely showed regret at rejecting the more advantageous plea deal before trial and not that
       he rejected the offer due to a material misunderstanding of what sentence he faced. Id. The
       supreme court agreed with the State that the statement did not constitute an implicit pro se
       claim of ineffective assistance of counsel sufficient to trigger the trial court’s duty to conduct
       a Krankel inquiry. Id.
¶ 19        The same is true in the present case. While defendant did mention counsel in his motion,
       he did not complain about counsel’s performance. Nor did he complain about counsel in his
       oral statements to the court. “In instances where the defendant’s claim is implicit and could
       be subject to different interpretations, a Krankel inquiry is not required.” Thomas, 2017 IL
       App (4th) 150815, ¶ 26. As in Thomas and Taylor, defendant’s statements could be subject to
       differing interpretations. He easily could have been hoping for the trial court to reopen the
       proofs in order to hear the witness. Absent a clear claim of ineffective assistance of counsel,
       the trial court’s duty to conduct a Krankel inquiry was not triggered. See Ayres, 2017 IL
       120071, ¶ 18 (a defendant’s “clear claim asserting ineffective assistance of counsel, either
       orally or in writing, *** is sufficient to trigger the trial court’s duty to conduct a Krankel
       inquiry”).
¶ 20        We disagree with defendant’s suggestion that People v. Peacock, 359 Ill. App. 3d 326
       (2005), is sufficiently similar to the facts presented here. In Peacock, the court held that the
       defendant had triggered a preliminary Krankel inquiry when he complained to the trial court
       that his attorney had not represented him to the full extent of his ability, specifically by
       failing to subpoena the defendant’s witnesses and by ineffectively cross-examining witnesses
       at trial. Id. at 339-40. The defendant’s statements contained express accusations of
       ineffective assistance against the defendant’s attorney. In contrast, here, defendant’s
       statements concerned his belief that Cuthbertson was a necessary witness, with no clear
       indication that he was dissatisfied with Lutz’s performance as counsel. There simply is no
       clear accusation of ineffective assistance, in defendant’s pro se motion or anywhere else in


                                                   -4-
       the record. As defendant’s statements fell short of a “clear claim asserting ineffective
       assistance of counsel” (Ayres, 2017 IL 120071, ¶ 18), he was not entitled to a Krankel
       inquiry. Accordingly, we conclude that defendant did not sufficiently raise a pro se claim of
       ineffective assistance of counsel and that the trial court did not err in failing to conduct a
       preliminary Krankel inquiry.

¶ 21                                      III. CONCLUSION
¶ 22       For the foregoing reasons, the judgment of the circuit court of Stephenson County is
       affirmed. As part of our judgment, we grant the State’s request that defendant be assessed
       $50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls,
       71 Ill. 2d 166, 178 (1978).

¶ 23      Affirmed.




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