                           ILLINOIS OFFICIAL REPORTS
                                        Supreme Court




                                People v. Patrick, 2011 IL 111666




Caption in Supreme         THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. TYRON L.
Court:                     PATRICK, Appellee.



Docket No.                 111666
Filed                      December 30, 2011


Held                       Even though a new trial was one of the remedies sought in pro se
(Note: This syllabus       allegations of ineffective assistance made before notice of appeal, a
constitutes no part of     common law right to a Krankel inquiry into their factual basis was
the opinion of the court   created and was not subject to the statute requiring that a motion for a
but has been prepared      new trial must be made within 30 days of verdict.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Appellate Court for the Second District; heard in that
Review                     court on appeal from the Circuit Court of Lake County, the Hon. George
                           Bridges, Judge, presiding.



Judgment                   Affirmed.
Counsel on               Lisa Madigan, Attorney General, of Springfield, and Michael J. Waller,
Appeal                   State’s Attorney, of Waukegan (Michael A. Scodro, Solicitor General,
                         and Michael M. Glick and Stephen M. Soltanzadeh, Assistant Attorneys
                         General, of Chicago, and Patrick Delfino, Lawrence M. Bauer and
                         Victoria E. Jozef, of the Office of the State’s Attorneys Appellate
                         Prosecutor, of Elgin, of counsel), for the People.

                         Michael J. Pelletier, State Appellate Defender, Thomas A. Lilien, Deputy
                         Defender, and Jaime L. Montgomery, Assistant Appellate Defender, of
                         the Office of the State Appellate Defender, of Elgin, for appellee.


Justices                 CHIEF JUSTICE KILBRIDE delivered the judgment of the court, with
                         opinion.
                         Justices Freeman, Thomas, Garman, Karmeier, Burke, and Theis
                         concurred in the judgment and opinion.



                                           OPINION

¶1        The issue in this appeal is whether the trial court erred in refusing to consider the
      defendant’s pro se posttrial motions alleging ineffective assistance of counsel because those
      motions were not timely filed under section 116-1(b) of the Code of Criminal Procedure of
      1963 (725 ILCS 5/116-1(b) (West 2006)). We hold that the trial court was required to
      conduct a preliminary inquiry into the factual basis of the defendant’s ineffective assistance
      allegations. Accordingly, we affirm the appellate court’s judgment remanding this matter to
      the trial court for a preliminary examination of the defendant’s allegations.

¶2                                     I. BACKGROUND
¶3        Defendant Tyron L. Patrick was charged by indictment in the circuit court of Lake
      County with reckless homicide (720 ILCS 5/9-3(a) (West 2006)) and four counts of failing
      to report an accident involving death or injury (625 ILCS 5/11-401(b) (West 2006)). The
      charges arose from a collision between two vehicles resulting in the death of one person and
      injuries to three others.
¶4        The evidence at trial established that Holly Graham was driving her vehicle with Tiara
      Langston in the front passenger seat. Gary Nixon and Jauqtel Foster were in the backseat of
      the car. Graham’s car was struck by another vehicle while traveling through an intersection.
      Graham died as a result of the collision and her three passengers suffered severe injuries.
¶5        Lieutenant Richard Theis of the North Chicago police department testified that he was
      on patrol shortly after midnight when he saw a black car traveling at a high rate of speed. The


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       vehicle failed to stop at an intersection. Theis turned around and accelerated to follow the
       vehicle, but he could not catch up to the black car. Theis estimated that the car was traveling
       approximately 80 miles per hour in a 30-miles-per-hour zone. Theis lost sight of the vehicle
       and called for backup. One to two minutes after he lost sight of the vehicle, the officers
       approached a collision between two vehicles at an intersection. Theis observed the black car
       stopped in the southbound lanes of the street and a white car against a tree. There were no
       occupants in the black car.
¶6          Officer Donald Florance testified that he responded to Lieutenant Theis’s call for backup.
       When they arrived at the scene, he observed a black Monte Carlo with no occupants and a
       white Mercury with three people inside. Another passenger had been thrown from the
       Mercury. Florance further testified that approximately two weeks prior to this incident, he
       observed defendant standing by a gray Cadillac. When defendant got into the Cadillac and
       drove away, Officer Florance followed and activated his emergency lights to make a traffic
       stop. Defendant began traveling 50 to 60 miles per hour in a 25-miles-per-hour zone.
       Florance eventually ended his pursuit when defendant accelerated to about 90 miles per hour.
¶7          Officer Morris Wade testified that two days after the crash, defendant called and asked
       what charges would be filed if he surrendered. Wade told defendant that the investigation had
       not been completed and he was unsure of potential charges. When Wade asked defendant if
       he had received medical treatment for any injuries, defendant responded that he was not
       injured. Defendant stated he would turn himself in, but did not identify himself as the driver
       of the black vehicle.
¶8          Sergeant Salvatore Cecala testified that he recovered blood samples from the driver-side
       air bag and the driver-side floor of the black Monte Carlo. Cecala opined that the blood on
       the air bag could have come only from the driver. Cecala found a purse on the front
       passenger-side floor of the vehicle containing the identification of Tarielle Walls. He also
       found three cell phones in the car, one on each floorboard in the front and one plugged into
       the back console. One of the cell phones was marked with the name “Monique.” Based on
       his investigation, Cecala estimated that the vehicle was traveling approximately 95 miles per
       hour.
¶9          Cecala further testified that while taking a DNA sample from defendant, he noticed
       injuries above defendant’s eyebrow, above his nose, on his shoulder, and on his back. The
       State presented testimony that the DNA profiles from the air bag and floorboard of the car
       matched defendant’s DNA profile.
¶ 10        After the State rested, defendant called Tarielle Walls. Walls testified that she was at a
       club with her sisters, Marielle and Monique, and her cousin when she met defendant and a
       man named “D.” She had known defendant for approximately two years, but met “D” for the
       first time that night. Walls testified that “D” was driving the black Monte Carlo that night,
       she was in the front passenger seat, and defendant was in the backseat. A white car pulled
       out from a stop sign and the cars collided. “D” and defendant both left the vehicle. A woman
       helped Walls get out of the car and she sat on the curb until police officers arrived. Walls
       testified that the car was traveling at the speed limit, not 90 miles per hour.
¶ 11        On February 27, 2008, the jury found defendant guilty of reckless homicide, failing to


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       report an accident involving a death, and three counts of failing to report an accident
       involving an injury. Defendant filed a motion for judgment notwithstanding the verdict or,
       alternatively, for a new trial. On May 16, 2008, the trial court denied that motion and
       sentenced defendant to consecutive nine-year terms for reckless homicide and failing to
       report an accident involving a death. He was sentenced to five years’ imprisonment for each
       count of failing to report an accident involving an injury, to be served concurrently.
¶ 12        On June 10, 2008, defendant filed a motion to reconsider his sentence. While that motion
       was pending, defendant filed a pro se “Motion for Appointment of Counsel Outside the
       Office of the Lake County Public Defender.” In that motion filed on June 24, 2008,
       defendant alleged his trial counsel: (1) was not licensed to practice law and failed to inform
       him of that fact; (2) colluded with an assistant State’s Attorney to secure his conviction by
       warning defendant that additional charges could be filed if he did not cooperate; (3) forgot
       to bring several exhibits crucial to his defense on the second day of trial; (4) failed or refused
       to challenge the imposition of consecutive sentences; (5) did not file posttrial motions
       challenging the police department’s investigation and its failure to fingerprint the black
       Monte Carlo; (6) deprived him of his right to a speedy trial; (7) did not challenge in a
       posttrial motion the trial court’s decision to allow a juror to remain on the jury after he fell
       asleep during trial; (8) failed to argue that defendant had no duty to report the accident
       because police officers were already present; and (9) failed to present an expert witness at
       trial.
¶ 13        Defendant’s motion for appointment of counsel was accompanied by a pro se motion for
       judgment notwithstanding the verdict or, alternatively, for a new trial, repeating the
       allegations of ineffective assistance of counsel. Defendant sought an evidentiary hearing with
       appointed counsel outside the public defender’s office.
¶ 14        The hearing on defendant’s motion to reconsider his sentence was set for the following
       day. At that hearing, the trial court stated the pro se motions were filed “outside of the time
       period. I admonished the Defendant, so that will not be considered by the Court. It is
       untimely.” The trial court did not conduct any inquiry into the ineffective assistance
       allegations. The hearing on defendant’s motion to reconsider his sentence was continued.
       Subsequently, on August 1, 2008, the trial court denied defendant’s motion to reconsider his
       sentence.
¶ 15        On appeal, the appellate court vacated defendant’s three convictions for failing to report
       an accident involving an injury based on the one-act, one-crime rule. The appellate court also
       held that the evidence was insufficient to sustain defendant’s conviction of failing to report
       an accident involving a death and reduced that conviction to the lesser-included offense of
       leaving the scene of an accident (625 ILCS 5/11-401(a) (West 2006)). The appellate court
       further held that the trial court erred in ordering defendant to serve 85% of his reckless
       homicide sentence and that the trial court’s violation of Supreme Court Rule 431(b) was not
       reversible error under the plain-error rule.
¶ 16        As for the trial court’s refusal to consider defendant’s pro se motions alleging ineffective
       assistance of counsel, the appellate court held that the trial court was required to examine the
       factual basis of those allegations. The appellate court observed that the trial court still had


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       jurisdiction over the matter when the pro se motions were filed, and held that the trial court
       erred in failing to inquire into the allegations of ineffective assistance of counsel.
       Accordingly, the cause was remanded to the trial court for a preliminary examination of the
       defendant’s pro se allegations of ineffective assistance of counsel and for resentencing. 406
       Ill. App. 3d 548.
¶ 17        We allowed the State’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)).

¶ 18                                         II. ANALYSIS
¶ 19        Initially, the State contends that the appellate court did not have jurisdiction to review the
       trial court’s decision on defendant’s pro se posttrial motions. According to the State, the two
       notices of appeal filed by defendant do not identify the trial court’s order on the pro se
       motions or the date of that order. The appellate court, therefore, lacked jurisdiction because
       the notices of appeal do not adequately identify the challenged judgment.
¶ 20        The timely filing of a notice of appeal is the only jurisdictional step for initiating
       appellate review. People v. Lewis, 234 Ill. 2d 32, 37 (2009). If there is no properly filed
       notice of appeal, the reviewing court lacks jurisdiction and must dismiss the appeal. People
       v. Smith, 228 Ill. 2d 95, 104 (2008).
¶ 21        The purpose of a notice of appeal is to notify the prevailing party that the other party
       seeks review of the circuit court’s judgment. Lewis, 234 Ill. 2d at 37. A notice of appeal
       confers jurisdiction on the reviewing court to consider only the judgments or pertinent parts
       specified in the notice. General Motors Corp. v. Pappas, 242 Ill. 2d 163, 176 (2011). A
       notice of appeal “ ‘should be considered as a whole and will be deemed sufficient to confer
       jurisdiction on an appellate court when it fairly and adequately sets out the judgment
       complained of and the relief sought, thus advising the successful litigant of the nature of the
       appeal.’ ” Smith, 228 Ill. 2d at 105 (quoting Lang v. Consumers Insurance Service, Inc., 222
       Ill. App. 3d 226, 229 (1991)).
¶ 22        Two notices of appeal were filed in this case. One of the notices, signed by defendant’s
       trial counsel, identifies the offenses and sentences imposed. The “Date of Judgment Order”
       is listed as August 1, 2008, the date the trial court denied defendant’s motion to reconsider
       his sentence. The other notice of appeal, signed by the circuit court clerk, also lists the
       offenses and sentences. That notice lists the “Date of Judgment Order” as May 16, 2008, the
       date of sentencing, and is left blank under the heading, “If appeal is not from a conviction,
       nature of Order appealed from.” The State argues that the notices of appeal are insufficient
       to confer appellate jurisdiction because they do not adequately identify the trial court’s order
       on defendant’s pro se motions.
¶ 23        We addressed a similar argument on appellate jurisdiction in Lewis. In that case, the State
       contended that the notice of appeal did not confer jurisdiction over the defendant’s challenge
       to a street-value fine because it only listed an order denying a motion to suppress evidence.
       Lewis, 234 Ill. 2d at 36-37. In rejecting that argument, we observed that the defendant’s
       notice of appeal accurately identified the offense and sentence. Lewis, 234 Ill. 2d at 38. By
       leaving blank the part of the notice stating “Nature of order appealed from, other than
       conviction,” the defendant indicated he was appealing from his conviction. Lewis, 234 Ill.

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       2d at 38. Although the notice of appeal listed the date of the order or judgment as “4/3/06-
       Order denying motion to suppress,” the notice clearly indicated defendant was appealing
       from no orders other than his conviction. Lewis, 234 Ill. 2d at 38. We concluded that the
       notice of appeal was sufficient to confer appellate jurisdiction over defendant’s challenge to
       his street-value fine because, considered as a whole and construed liberally, the notice
       adequately identified the challenged judgment and informed the State of the nature of the
       appeal. Lewis, 234 Ill. 2d at 39.
¶ 24        In this case, the notice of appeal signed by the circuit court clerk accurately identifies the
       offenses and sentences. The notice was left blank under the heading, “If appeal is not from
       a conviction, nature of Order appealed from.” As in Lewis, by leaving that part of the notice
       blank, the defendant indicated he was appealing from his conviction.
¶ 25        The notice of appeal signed by defense counsel also accurately identifies the offenses and
       sentences. The date of the judgment order is listed as August 1, 2008, the date the trial court
       denied defendant’s final motion directed against the judgment. We conclude that both notices
       of appeal indicate defendant was appealing from the judgment of conviction.
¶ 26        To the extent that the conflicting dates listed in the notices of appeal could have caused
       any confusion, we note that the purpose of a notice of appeal is to inform the prevailing party
       in the trial court that the unsuccessful party seeks review. Lewis, 234 Ill. 2d at 37. Briefs, not
       the notice of appeal, specify the precise points relied upon for reversal. Butrell v. First
       Charter Service Corp., 76 Ill. 2d 427, 433 (1979). In this case, the notices of appeal served
       the purpose of informing the State that defendant sought review of the judgment of
       conviction.
¶ 27        Further, a failure to comply strictly with the form of notice is not fatal if the deficiency
       is one of form rather than substance and the appellee is not prejudiced. General Motors
       Corp., 242 Ill. 2d at 176. The State does not argue it was prejudiced in any way by the
       notices of appeal and it does not appear that there was any prejudice. Accordingly, we
       conclude that the appellate court had jurisdiction to review the trial court’s decision on
       defendant’s pro se posttrial motions.
¶ 28        On the merits, the State contends that section 116-1(b) of the Code of Criminal Procedure
       (725 ILCS 5/116-1(b) (West 2006)) requires defendants to file a written motion for a new
       trial within 30 days after the entry of a guilty verdict. Defendant’s pro se motions sought a
       new trial and that is the relief available for any successful ineffective assistance of counsel
       claim. Defendant’s pro se motions are, therefore, governed by the plain language of section
       116-1(b). Defendant filed his pro se motions 118 days after the guilty verdict in this case.
       Accordingly, the State maintains that the pro se motions were not timely filed under section
       116-1(b) and the trial court properly refused to consider those motions.
¶ 29        Defendant responds that a pro se motion alleging ineffective assistance of counsel is not
       a motion for a new trial within the meaning of section 116-1(b). A pro se motion alleging
       ineffective assistance is governed by the common law procedure developed by this court in
       People v. Krankel, 102 Ill. 2d 181 (1984), and refined in subsequent cases. Under the
       common law procedure, a pro se defendant is not required to file a written motion, but must
       only bring the claim to the trial court’s attention. Additionally, pro se motions alleging


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       ineffective assistance are not limited to counsel’s performance at trial, but may also arise
       from guilty plea or probation revocation proceedings. Defendant, therefore, contends that
       section 116-1(b), requiring a written motion for a new trial filed within 30 days of a guilty
       verdict, cannot be applied to the Krankel procedure.
¶ 30       We agree with defendant that the State’s attempt to graft the statutory requirement in
       section 116-1(b) onto a common law remedy is fundamentally flawed. A pro se posttrial
       motion alleging ineffective assistance of counsel is not a new trial motion as outlined in
       section 116-1. Rather, it is part of a separate common law procedure developed in a line of
       cases beginning with Krankel.
¶ 31       In Krankel, the defendant filed a pro se posttrial motion alleging his trial counsel was
       ineffective for refusing to investigate or present an alibi defense. Krankel, 102 Ill. 2d at 187.
       The trial court denied the motion without appointing new counsel to assist the defendant.
       Krankel, 102 Ill. 2d at 189. This court remanded the matter for a new hearing on the
       defendant’s pro se motion with appointed counsel other than his originally appointed trial
       counsel. Krankel, 102 Ill. 2d at 189.
¶ 32       Following Krankel, this court clarified that newly appointed counsel is not automatically
       required in every case when a defendant presents a pro se posttrial motion alleging
       ineffective assistance of counsel. People v. Moore, 207 Ill. 2d 68, 77 (2003). 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.” Moore, 207 Ill. 2d at 77-78.
¶ 33       This appeal requires a determination of whether the trial court may refuse to conduct any
       inquiry into the factual basis of defendant’s pro se posttrial motions alleging ineffective
       assistance of counsel based on a finding that those motions are untimely under section 116-
       1(b). Section 116-1 provides:
               “Motion for New Trial. (a) Following a verdict or finding of guilty the court may
               grant the defendant a new trial.
                    (b) A written motion for a new trial shall be filed by the defendant within 30 days
               following the entry of a finding or the return of a verdict. Reasonable notice of the
               motion shall be served upon the State.
                    (c) The motion for a new trial shall specify the grounds therefor.” 725 ILCS
               5/116-1 (West 2006).
       The plain language of section 116-1(b), therefore, requires a motion for a new trial to be
       written and filed within 30 days after entry of a guilty finding or verdict.
¶ 34       The parties dispute whether a pro se motion alleging ineffective assistance of counsel is
       a motion for a new trial within the meaning of section 116-1(b). Generally, the character of
       a motion is determined by its content or substance, not by the label placed on it by the
       movant. People v. Shellstrom, 216 Ill. 2d 45, 51 (2005). We must examine the relief sought


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       to determine a motion’s character. The character of a motion alleging ineffective assistance
       of counsel is, therefore, determined by the relief sought in the ineffective assistance claim.
¶ 35        The remedy for a valid claim of ineffective assistance of counsel should be tailored to the
       injury from the constitutional violation and should not unnecessarily infringe on competing
       interests. People v. Curry, 178 Ill. 2d 509, 537 (1997) (citing United States v. Morrison, 449
       U.S. 361, 364 (1981)). Accordingly, in Curry this court ordered a new trial including the
       resumption of the plea negotiation process because the constitutional deprivation occurred
       during plea negotiations. Curry, 178 Ill. 2d at 536-37. This court concluded that simply
       ordering a new trial would not cure the injury from the constitutional violation during plea
       negotiations. Curry, 178 Ill. 2d at 536.
¶ 36        Here, defendant’s pro se motions allege several instances of ineffective assistance of trial
       counsel. Defendant sought a new trial on some of those allegations. Others, however, would
       entitle defendant to other relief if they were successful. For instance, defendant alleges that
       his trial counsel deprived him of his right to a speedy trial. If defendant were successful on
       that claim, he would be entitled to reversal of his convictions. See People v. Williams, 204
       Ill. 2d 191, 208 (2003) (violation of speedy-trial act required reversal of conviction); People
       v. Mayo, 198 Ill. 2d 530, 536 (2002) (a defendant not tried within the statutory speedy-trial
       period must be discharged from custody and the charges must be dismissed).
¶ 37        Defendant also claimed ineffective assistance of counsel during sentencing, alleging that
       his trial counsel failed to challenge the imposition of consecutive sentences. Defendant
       would not be entitled to a new trial as a remedy on that claim because it could not have
       impacted his trial. He would only be entitled to resentencing if successful on that claim.
       Thus, portions of defendant’s pro se motions do not seek a new trial. Defendant’s pro se
       motions cannot be characterized simply as motions for a new trial subject to the filing
       requirements of section 116-1(b).
¶ 38        The application of section 116-1(b) would preclude defendant from raising any pro se
       ineffective assistance claim based on his sentencing because those claims could not be filed
       within the 30-day statutory time period. The Krankel procedure is intended to include pro
       se ineffective assistance claims arising from sentencing, however. See People v. Sims, 167
       Ill. 2d 483, 517-20 (1995) (applying Krankel to claim that trial counsel provided ineffective
       assistance during sentencing).
¶ 39        We note that once a notice of appeal has been filed, the trial court loses jurisdiction of
       the case and may not entertain a Krankel motion raising a pro se claim of ineffective
       assistance of counsel. Further, a Krankel motion is not a substitute for a postconviction
       petition. 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.
¶ 40        We emphasize that section 116-1(b) still controls written motions for a new trial filed by
       defendants within 30 days following entry of a finding or the return of a verdict. To be clear,
       the holding in this case applies only to alleged deficient performance of trial counsel and not
       to any other errors.
¶ 41        The common law procedure developed in Krankel and subsequent cases is intended to

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       promote consideration of pro se ineffective assistance claims in the trial court and to limit
       issues on appeal. See People v. Jocko, 239 Ill. 2d 87, 91 (2010) (Krankel procedure
       encourages trial courts to fully address pro se claims of ineffective assistance and thereby
       narrow issues on appeal). The procedure is not intended to be constrained by section 116-
       1(b). The trial court erred in refusing to consider defendant’s pro se posttrial motions after
       finding they were untimely under section 116-1(b).
¶ 42       It is true that section 116-1(b) says a defendant must file a written motion for a new trial
       within 30 days of the entry of a finding or the return of a verdict. However, an exception to
       that rule is if a defendant is seeking a new trial based on claims of ineffective assistance of
       counsel and the claim is raised before a notice of appeal is filed. In that case, the defendant
       may have a Krankel hearing to determine if his claims have any merit and warrant the
       appointment of separate counsel. For all other claims seeking a new trial, a defendant must
       comply with section 116-1(b)’s requirements.
¶ 43       Here, the trial court did not conduct any inquiry into defendant’s pro se ineffective
       assistance of counsel allegations. The trial court was required to conduct a preliminary
       inquiry into the factual basis of defendant’s allegations. See Moore, 207 Ill. 2d at 79.
       Accordingly, this matter must be remanded to the trial court to conduct the required
       preliminary examination of defendant’s claims.

¶ 44                                    III. CONCLUSION
¶ 45       For the foregoing reasons, we hold that the trial court erred in failing to conduct a
       preliminary examination into the factual basis of defendant’s pro se posttrial motions
       alleging ineffective assistance of counsel. This cause must be remanded for a preliminary
       inquiry into the defendant’s allegations. Accordingly, we affirm the appellate court’s
       judgment.

¶ 46      Affirmed.




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