                                                                                  FILED

                                                                                  April 5, 2017

                                    2017 IL App (4th) 160410                      Carla Bender

                                                                              4th District Appellate

                                         NO. 4-16-0410                              Court, IL

                                 IN THE APPELLATE COURT

                                          OF ILLINOIS

                                      FOURTH DISTRICT


 THE PEOPLE OF THE STATE OF ILLINOIS,                       )      Appeal from

            Plaintiff-Appellee,                             )      Circuit Court of

            v.                                              )      Macon County

 SEAN A. PECK,                                              )      No. 11CF1744

            Defendant-Appellant.	                           )
                                                            )      Honorable

                                                            )      Timothy J. Steadman,

                                                            )      Judge Presiding.



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

                                           OPINION

¶1             Following a December 2012 trial, a jury found defendant, Sean A. Peck, guilty of

(1) possession of a controlled substance with intent to deliver (15 or more objects but less than

200 objects containing N-benzylpiperazine (ecstasy)) (720 ILCS 570/401(a)(7.5)(A) (West

2010)) and (2) possession of a controlled substance with intent to deliver (less than one gram of a

substance containing cocaine) (720 ILCS 570/401(d) (West 2010)) premised on drugs found in a

search of defendant’s residence. In February 2013, the trial court sentenced defendant to

concurrent prison terms of 20 years and 10 years, respectively. Following the sentencing hearing,

defendant’s counsel filed a motion to reconsider the sentence. Defendant pro se filed a separate

motion to reconsider the sentence and argued that his trial counsel was ineffective when she

failed to file a motion to suppress his incriminating statements. In August 2013, the court denied

the motions. Defendant appealed.
¶2             On appeal, defendant argued that (1) trial counsel was ineffective for failing to

file a motion to suppress his incriminating statements and (2) the trial court erred when it failed

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

(1984). This court agreed with defendant’s latter assertion and remanded the case with directions

for the trial court to (1) appoint defendant new counsel and (2) conduct a Krankel hearing on his

claim of ineffective assistance of counsel. People v. Peck, No. 4-13-0749 (May 15, 2015)

(unpublished summary order under Supreme Court Rule 23(c)).

¶3             On remand, newly appointed Krankel counsel filed an amended motion for a new

trial. Defendant filed a motion to withdraw the amended motion and argued Krankel counsel had

(1) not sufficiently communicated with him and (2) a conflict of interest due to a professional

relationship with defendant’s trial attorney. Defendant elected to proceed pro se and filed a new

motion to support his contentions for the Krankel hearing. At a May 2016 hearing, the court

found trial counsel was not ineffective for failing to file a motion to suppress defendant’s

incriminating statements.

¶4             Defendant appeals, arguing (1) that the trial court failed to properly admonish him

before permitting him to waive counsel and proceed pro se at his Krankel hearing; and (2) in the

alternative, that his trial counsel was ineffective for failing to file a motion to suppress his

incriminating statements following his request for legal representation. For the reasons that

follow, we agree with defendant’s second argument and reverse and remand for a new trial.

¶5                                     I. BACKGROUND

¶6             In December 2011, the State charged defendant with (1) possession of a

controlled substance with intent to deliver (15 or more objects but less than 200 objects

containing ecstasy) (720 ILCS 570/401(a)(7.5)(A) (West 2010)), (2) possession of a controlled



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substance with intent to deliver (less than one gram of a substance containing cocaine) (720

ILCS 570/401(d) (West 2010)), (3) possession of a controlled substance (15 or more objects but

less than 200 objects containing ecstasy) (720 ILCS 570/402(a)(7.5)(A) (West 2010)), (4)

possession of a controlled substance (less than 15 grams of a substance containing cocaine) (720

ILCS 570/402(c) (West 2010)), and (5) possession of cannabis (more than 10 grams but not more

than 30 grams of a substance containing cannabis) (720 ILCS 550/4(c) (West 2010)). The State

enhanced each count due to defendant’s prior conviction for possession of cocaine.

¶7                                       A. The Evidence

¶8             These charges arose from a search warrant executed on defendant’s residence on

February 17, 2011. The police found 0.5 grams of a white substance later tested and identified as

cocaine, 19 pills in defendant’s kitchen cabinets, and 50 pills in a black leather jacket (17 of the

69 total pills were tested and identified as ecstasy). The police also found a digital scale, a razor

blade with white residue on the blade, a screwdriver with white residue on the tip, and a box of

sandwich bags in the kitchen cabinets. During the search, defendant and his girlfriend, Pershoun

Ewing, were present.

¶9             The police later brought defendant to the Decatur police department and placed

him in an interview room. Detective Jeff Hockaday informed defendant of his Miranda rights

(Miranda v. Arizona, 384 U.S. 436 (1966)) and asked defendant if he had any questions.

Defendant immediately responded, “I want an attorney.” Hockaday responded, “You do want an

attorney?” Defendant explained he did not want to say anything that the police could use against

him. Hockaday stated, “Okay, now like I explained to you out there *** Pershoun is going to be

arrested as part of this, okay?” Following this statement, defendant asked what evidence the

police retrieved from his residence. Hockaday listed several items that the police found at



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defendant’s residence. He explained he was going to charge Pershoun and send the evidence

away for fingerprints. Hockaday told defendant, “I know your prints are going to come back ***

so we’re just going to go from there.”

¶ 10           Hockaday asked defendant if he had any questions. Defendant asked, “What’s the

next move?” Hockaday responded, “You’re going to go to county [jail] here in a minute once I

get some paperwork done, alright?” Defendant asked, “What’s my charge?” They then discussed

the possible charges based on the evidence retrieved from his residence. Defendant reiterated that

he was “going to have to hire a lawyer.” Hockaday responded, “You’ve already asked for an

attorney *** unless you withdraw that request right here, I’m not going to bother wasting my

time with you. Okay? The bottom line—you can help yourself out.” Defendant responded, “I’ll

withdraw it then.” Hockaday then began discussing that defendant could become an informant

and not face charges. Later, defendant asked about Pershoun, and Hockaday replied, “She’s in

the hospital, and she’s got a warrant *** she’s going to get charged with the dope unless I hear

the truth from you *** if you make me arrest her, that’s what I’ll do.” Defendant then admitted

selling cocaine and ecstasy. The entire interrogation lasted approximately 1 hour and 25 minutes.

¶ 11                                       B. Pretrial

¶ 12           In July 2012, defendant filed a motion to dismiss for ineffective assistance of

counsel and argued the State violated his speedy trial rights. The trial court disagreed and found

no speedy trial violation. Defendant decided to waive counsel. Soon thereafter, defendant asked

the court to reappoint his former counsel. The court granted his request and reappointed his

former counsel. However, defendant again took issue with his counsel and argued she neglected

to file motions on his behalf and was not working with his best interest in mind. In response,




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counsel told the newly assigned judge that (1) there was no basis to suppress the search warrant

and (2) the previous judge had already ruled on the speedy trial issue.

¶ 13                                         C. Trial

¶ 14           In December 2012, defendant refused to attend his trial, stating that he did not

trust his appointed counsel. The trial proceeded in his absence on counts I and II. The testimony

focused on evidence recovered after a search of defendant’s residence. Hockaday testified about

the interrogation, and the jury viewed an edited version of the interrogation, which was

approximately eight minutes long and excluded the portions of the interview regarding

defendant’s request for an attorney and his withdrawal of his request for counsel.

¶ 15           Officer Chad Ramey testified about the items found at defendant’s residence.

Ramey stated the cocaine was in a large chunk form and there were many pills found in

defendant’s residence, indicating that they were being sold. Additionally, the other items found

in defendant’s residence, such as the digital scale, razor blade, screwdriver, and sandwich bags

were consistent with the sale of drugs. Ramey stated that although a buyer could possess these

items, it was more common for the seller to have them. The white residue on the screwdriver and

razor blade found at defendant’s residence were never tested.

¶ 16           During closing arguments, the prosecutor relied on the interrogation video and

stated, “[Defendant] himself told us exactly what it was he was planning to do with the ecstasy

and the cocaine. He made it easy for us.” Defense counsel reminded the jury that defendant (1)

was not the only person who lived at the residence and (2) admitted possessing the contraband

only after Hockaday told defendant of Pershoun’s circumstances. On rebuttal, the State

maintained that no speculation was required because, during the police interrogation, defendant




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said exactly what he intended to do with the drugs. The jury found defendant guilty of counts I

and II, and the State dismissed the remaining charges.

¶ 17                                        D. Posttrial

¶ 18           In February 2013, the trial court sentenced defendant as previously noted. In

February 2013, defendant’s counsel filed a motion to reconsider the sentence, arguing

defendant’s sentence was excessive. Shortly thereafter, defendant pro se filed a separate motion

to reconsider his sentence, arguing that his trial counsel was ineffective in that counsel failed to

file a motion to suppress evidence.

¶ 19           In March 2013, defendant filed a motion for reduction of sentence, again alleging,

in pertinent part, that his trial counsel failed to file “key motions” on his behalf. During an

August 2013 hearing (at which defendant was not present), defendant’s counsel acknowledged

that she had yet to review defendant’s filings but, relying on the State’s representations, informed

the trial court that defendant was merely “complaining that his [pro se] motion to reconsider

hasn’t been set for hearing.” The State confirmed defense counsel’s representations. Relying on

the parties’ representations, the court stated that it would not inquire further under Krankel into

defendant’s filings. The court scheduled a later hearing to consider defense counsel’s February

2013 motion to reconsider the sentence. At an August 2013 hearing, the court denied defense

counsel’s motion to reconsider the sentence. Defendant appealed.

¶ 20           On appeal, defendant’s appointed counsel, the office of the State Appellate

Defender (OSAD), argued that (1) trial counsel was ineffective in that she did not file a motion

to suppress the incriminating statements defendant made to police following his request for legal

representation and (2) the trial court erred when it failed to conduct a Krankel hearing to inquire

further into defendant’s claims of ineffective assistance of trial counsel. The State conceded the



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second argument, and this court remanded the case with directions that the court appoint

defendant new counsel and conduct a hearing on defendant’s ineffective assistance of trial

counsel claims.

¶ 21              On remand, defendant’s appointed Krankel counsel filed an amended motion for a

new trial and attached a copy of OSAD’s brief. However, the court granted defendant’s request

to proceed pro se, and defendant thereafter pro se filed a motion for a Krankel hearing, which

reiterated the points in his former counsel’s amended motion.

¶ 22              In May 2016, the trial court conducted a hearing on defendant’s motion.

Defendant argued that his trial counsel was ineffective for (1) failing to file a motion to suppress

his custodial statements and (2) relying on OSAD’s brief. Trial counsel testified that she met

with defendant prior to trial, and he requested his statements be suppressed. However, she

explained she reviewed the interrogation video and did not believe defendant’s rights were

violated. Although defendant asserted his right to counsel, she noted that he reinitiated the

conversation with Hockaday. The State argued trial counsel was not ineffective because she

determined that defendant, following his request for an attorney, reinitiated the conversation with

Hockaday, thereby waiving his prior invocation of counsel. Defendant responded trial counsel

was incorrect because he only spoke to Hockaday after he threatened to “lock [his] girlfriend

up.” The court agreed with the State, finding counsel’s representation did not fall below an

objective standard of reasonableness and defendant was not prejudiced by trial counsel’s

representation.

¶ 23              This appeal followed.




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¶ 24                                            II. ANALYSIS

¶ 25            Defendant’s raises two issues on appeal. First, defendant argues that he did not

receive the proper Illinois Supreme Court Rule 401(a) (eff. July 1, 1984) admonitions prior to

waiving counsel at the Krankel hearing. Alternatively, defendant argues that his trial counsel was

ineffective for failing to file a motion to suppress his incriminating statements following his

request for legal representation. Because we agree with defendant’s second argument, we need

not address the first.

¶ 26            To establish a claim of ineffective assistance of counsel, defendant has the burden

to show his claim satisfies the two-pronged Strickland test (see Strickland v. Washington, 466

U.S. 668 (1984)), as recently explained by the Illinois Supreme Court in People v. Cherry, 2016

IL 118728, ¶ 24, 63 N.E.3d 871:

                “Under Strickland, to prevail on a claim of ineffective assistance of

                counsel, a defendant must show both that counsel’s performance

                was deficient and that the deficient performance prejudiced the

                defendant. [Citation.] More specifically, the defendant must

                demonstrate      that     counsel’s     performance   was   objectively

                unreasonable under prevailing professional norms and that there is

                a ‘reasonable probability that, but for counsel’s unprofessional

                errors,   the    result    of    the   proceeding   would   have   been

                different.’[Citation.] ”

¶ 27                            A. Objective Standard of Reasonableness




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¶ 28           Defendant argues that his trial counsel’s performance fell below an objective

standard of reasonableness when she failed to file a motion to suppress the incriminating

statements he made to Hockaday after he invoked his right to counsel. We agree.

¶ 29           “In order to satisfy the deficient-performance prong of Strickland, a defendant

must show that his counsel’s performance was so inadequate that counsel was not functioning as

the ‘counsel’ guaranteed by the sixth amendment. Counsel’s performance is measured by an

objective standard of competence under prevailing professional norms.” (Internal quotation

marks omitted.) People v. Manning, 241 Ill. 2d 319, 326-27, 948 N.E.2d 542, 547 (2011).

Defendant must overcome the strong presumption that the challenged action or inaction may

have been a result of sound trial strategy. People v. Evans, 186 Ill. 2d 83, 93, 708 N.E.2d 1158,

1163 (1999). Moreover, the decision whether to file a motion to suppress is generally “a matter

of trial strategy, which is entitled to great deference.” (Internal quotation marks omitted.) People

v. Bew, 228 Ill. 2d 122, 128, 886 N.E.2d 1002, 1006 (2008).

¶ 30           In Miranda, the United States Supreme Court held that before an accused is

subject to custodial interrogation, he must be advised of certain rights, including the right to

remain silent and the right to have an attorney present. Miranda, 384 U.S. at 444. The Court

further held that when an accused invokes this right to counsel, “the interrogation must cease

until an attorney is present.” (Emphasis added.) Miranda, 384 U.S. at 474. When this right is

invoked, there is a presumption that the accused is unable to proceed without counsel’s advice.

Arizona v. Roberson, 486 U.S. 675, 683 (1988).

¶ 31           In Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), the Court expanded upon its

decision in Miranda and created a bright line rule: when an accused invokes his right to counsel,

he “is not subject to further interrogation by the authorities until counsel has been made available



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to him, unless the accused himself initiates further communication, exchanges, or conversations

with the police.” In People v. Woolley, 178 Ill. 2d 175, 198, 687 N.E.2d 979, 990 (1997), the

Supreme Court of Illinois explained that the Edwards holding means that “[i]f the police

subsequently initiate a conversation with the accused in the absence of counsel, the accused’s

statements are presumed involuntary and are not admissible as substantive evidence at trial.”

Given that the parties in this case do not dispute that defendant was in custody or that he invoked

his right to counsel, the sole issue presented is whether Hockaday continued the interrogation

after defendant invoked his right to counsel. On this record, we conclude that he clearly did.

¶ 32           Hockaday began the interrogation by reading defendant his Miranda rights.

Defendant immediately and unequivocally responded, “I want an attorney.” Hockaday

responded, “You do want an attorney?” Defendant explained he did not want to say anything that

the State could use against him. Hockaday stated, “Okay, now like I explained to you out there

*** Pershoun is going to be arrested as part of this, okay?” Following this statement, defendant

spoke further with Hockaday and eventually admitted selling ecstasy and cocaine.

¶ 33           The Illinois Supreme Court has stated:

               “ ‘[T]he term “interrogation” under Miranda refers not only to

               express questioning, but also to any words or actions on the part of

               the police (other than those normally attendant to arrest and

               custody) that the police should know are reasonably likely to elicit

               an incriminating response from the suspect.’ ” (Emphases added.)

               People v. Hunt, 2012 IL 111089, ¶ 30, 969 N.E.2d 819 (quoting

               Rhode Island v. Innis, 446 U.S. 291, 301 (1980)).




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¶ 34           When determining whether police words or actions are reasonably likely to elicit

an incriminating response, we focus “primarily upon the perceptions of the suspect, rather than

the intent of the police.” (Internal quotation marks omitted.) Hunt, 2012 IL 111089, ¶ 30, 969

N.E.2d 819.

¶ 35           In this case, defendant argues that when Hockaday said, “Okay, now like I

explained to you out there *** Pershoun is going to be arrested as part of this, okay?,”

Hockaday’s statement was reasonably likely to elicit an incriminating response. Viewing the

police words or actions primarily from the perceptions of the suspect, as we must under Hunt, we

agree.

¶ 36           As defendant argued at his Krankel hearing, he only continued to speak to

Hockaday after the detective threatened to “lock [his] girlfriend up.” Because Hockaday’s

statement was reasonably likely to elicit an incriminating response from defendant, it constituted

an improper continuation of defendant’s interrogation after he invoked his right to counsel.

Hockaday’s remarks constituted a clear violation of the United States Supreme Court’s bright

line rule in Edwards and the Illinois Supreme Court’s directives in Hunt. Once defendant

invoked his right to counsel, Hockaday was required to cease the interrogation until such time as

an attorney was present.

¶ 37           We conclude that trial counsel could not reasonably have determined that

defendant reinitiated the conversation with Hockaday. After viewing the interrogation video,

counsel should have concluded that defendant invoked his right to counsel and Hockaday, by not

stopping his interrogation, violated defendant’s constitutional rights.

¶ 38           Counsel’s failure to file this motion was not the result of a tactical decision, but of

a fundamental misjudgment. Counsel’s testimony at the Krankel hearing demonstrated she



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erroneously believed a motion to suppress would be without merit because defendant reinitiated

the conversation with police. For these reasons, counsel’s performance fell below an objective

standard of reasonableness because she should have filed a motion to suppress defendant’s

custodial statements.

¶ 39                                      B. Prejudice

¶ 40           “[T]o establish prejudice where an ineffectiveness claim is based on the failure to

file a suppression motion, the defendant must show that a reasonable probability exists both that

the motion would have been granted, and that the result of the trial would have been different

had the evidence been suppressed.” People v. Henderson, 2013 IL 114040, ¶ 12, 989 N.E.2d

192. In People v. Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601, 611, the Illinois Supreme

Court quoted Strickland, 466 U.S. at 694, and explained that “[a] ‘reasonable possiblity’ is

defined as ‘a probability sufficient to undermine confidence in the outcome.’ ” For the reasons

previously mentioned, this court concludes trial counsel had a meritorious basis to file a motion

to suppress defendant’s confessional statement and a reasonable probability exists that the

motion would have been granted.

¶ 41           Defendant argues that the outcome of his trial would have been different had his

confession been suppressed because without his confession (1) the “intent to deliver” element

was much less clear, (2) he could have presented an alternative theory that the drugs belonged to

Pershoun, and (3) he would have been able to present jury instructions on lesser-included

offenses.

¶ 42           First, defendant argues, without his confession, the “intent to deliver” element

was much less clear. Defendant argues his confession was the centerpiece of the prosecution’s

case. As demonstrated by the transcript of the State’s closing argument, the State mentioned



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defendant’s confession and said the case did not require the jury to draw inferences from

circumstantial evidence. Instead, defendant’s own confession confirmed his intentions. For

example, the State said, “[defendant] himself told us exactly what it was he was planning to do

with the ecstasy and the cocaine. He made it easy for us.” The State asserted that defendant

confessed he was selling ecstasy and cocaine and that was why they were in his possession. The

State maintained the same argument on rebuttal, focusing on defendant’s confession.

¶ 43           Next, defendant argues, the admission of his confession prevented him from

arguing a different theory—namely, that the evidence collected indicated Pershoun might have

been responsible for the ecstasy and cocaine. Defendant notes trial counsel mentioned the leather

jacket at trial, which contained 50 of the pills that were found, and asked the jury to consider

whether the jacket appeared to belong to a man or a woman. Defendant asserts the jury

disregarded this suggestion because of defendant’s own confession.

¶ 44           Last, defendant argues he was prejudiced because he was convicted of the more

serious offense of possession with the intent to deliver, noting those were the only charges

considered because the trial court denied his request for instructions on lesser-included offenses.

For these reasons, defendant suggests the case presents a reasonable probability the outcome of

his trial would have been different had his confession not been admitted into evidence. We agree.

¶ 45           The record demonstrates that defendant’s confession had an immense impact on

the outcome of his case, and its admission negatively impacted defendant’s ability to provide

alternative theories and request jury instructions on lesser-included offenses. Additionally,

defendant’s confession was the State’s strongest piece of evidence to establish his intent to

deliver. As mentioned by the State in its closing argument, the jury did not have to speculate as




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to defendant’s intent, as he said exactly what he intended to do with the drugs. Accordingly, we

conclude defendant was prejudiced by trial counsel’s deficient performance.

¶ 46                                  III. CONCLUSION

¶ 47          For the reasons stated, we reverse defendant’s conviction and remand for a new

trial.

¶ 48          Reversed and remanded.




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