                             2013 IL App (2d) 120945
                                  No. 2-12-0945
                         Opinion filed September 27, 2013
______________________________________________________________________________

                                               IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Kane County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 07-CF-1241
                                       )
                                       ) Honorable
TUAN C. FIELDS,                        ) Grant S. Wegner,
                                       ) Karen Simpson, and
                                       ) James C. Hallock,
      Defendant-Appellant.             ) Judges, Presiding.
______________________________________________________________________________

        JUSTICE JORGENSEN delivered the judgment of the court, with opinion
        Presiding Justice Burke and Justice Hutchinson concurred in the judgment and opinion.

                                              OPINION

¶1      In 2008, a jury found defendant, Tuan C. Fields, accountable for the acts of his codefendant,

Darvin Henderson, and convicted him of first-degree murder (720 ILCS 5/9-1(a)(1) (West 2006))

and attempted first-degree murder (720 ILCS 5/8-4(a), 9-1(a) (West 2006)). The court sentenced

defendant to consecutive terms of 25 years’ and 8 years’ imprisonment, respectively. Defendant

appeals, arguing, as to his attempted first-degree murder conviction only, that the evidence was

insufficient to sustain his conviction. In addition, defendant argues that trial counsel provided

ineffective assistance where he did not object to the State’s introduction of gang-affiliation evidence.
2013 IL App (2d) 120945


Finally, defendant argues that we should remand for a new hearing on his pro se posttrial motion

alleging ineffective assistance of counsel, because the State’s participation in the preliminary inquiry

into his claims rendered the hearing adversarial. For the following reasons, we reject defendant’s

sufficiency-of-the-evidence and ineffective-assistance arguments, but we agree that he should receive

a new hearing on his pro se motion alleging ineffective assistance. Accordingly, we affirm in part,

reverse in part, and remand with directions.

¶2                                       I. BACKGROUND

¶3      On April 30, 2007, Henderson fired a weapon, allegedly given to him by defendant, in the

stairwell of an apartment building in Aurora. Rashod Waldrop died as a result of gunshot wounds

and Jonathan Phillips sustained a head wound. On appeal, defendant argues that the evidence was

insufficient to sustain his attempted murder conviction, because the State did not establish beyond

a reasonable doubt that Phillips’ injury was caused by a firearm, as charged, and, thus, that there was

any intent to kill.    As defendant does not challenge on appeal the evidence regarding his

accountability for the crimes, or the sufficiency of the evidence on his murder conviction, the

following factual synopsis does not focus on the trial evidence on those points. Rather, we provide

general background and detail only the evidence and events relevant to defendant’s appellate

arguments.

¶4                                      A. Trial Evidence

¶5      At trial, in opening statements, the State explained to the jury that the parties involved in the

incidents at issue belonged to the Gangster Disciples street gang or various factions, specifically, the

“Low Ends” and the “Twelve Hundreds.”




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¶6      Robert Moore testified that he knew and was “like brothers” with defendant, who was known

by the street name “Don Juan.” He also knew Henderson, who was known by the street name

“Bling.”   Phillips and Waldrop were known by the street names           “J-Hood” and “Turtle,”

respectively. Moore, Henderson, Phillips, and Waldrop were all members of the Gangster Disciples

(defendant was a member of the Maniac Latin Disciples, a gang described as like “cousins” with the

Gangster Disciples). Henderson, however, was part of the Twelve Hundreds faction of the gang,

while Phillips and Waldrop were part of the Low Ends faction. Moore and defendant did not belong

to factions.

¶7      Moore agreed that, on April 29, 2007, at a barbecue at Farnsworth Park in Aurora, a problem

started “between the two groups.” When Henderson arrived at the barbecue, Henderson and the Low

Ends (specifically Waldrop and Phillips) got into a fight. The fight became physical and Phillips

snatched a gold chain off of Henderson’s neck. Defendant was not involved in the fight. The fight

broke up when Michael Townes (gang affiliation, if any, unknown) fired a shot from a silver, .357-

caliber revolver into the air. Everyone scattered, and Moore, Phillips, and Waldrop went to a gas

station. Defendant did not go. According to Moore, Henderson eventually arrived at the gas station

and walked up to Phillips and Waldrop and said, “I’m getting my chain back” or “Let me get my

chain.” Waldrop responded, “Get it in blood,” and Phillips ripped the chain into pieces. Henderson

got into his car and drove away.

¶8      That evening, there was a party held in different apartments at 430 River Street in Aurora.

The apartment building has a secured elevator lobby, and a door off of the lobby that leads to a

stairwell. At the party, as defendant and Henderson exited a room, defendant said to Moore, “watch

what me and Bling about to do.” Moore saw Townes give defendant the gun that he had fired in the



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park. Defendant put the gun in his waistband and left. According to Moore, defendant later returned

to the party and said, “Everybody get out, J-Hood and Turtle just got knocked out.”

¶9     The evidence further reflected that defendant and Henderson were seen outside the building,

with Henderson putting on white gloves and wearing a hooded sweatshirt. Defendant told a witness,

“We on some bullshit.” Later, inside at the party, defendant said, “follow me,” and led multiple

people, including Phillips and Waldrop, out of the apartment, down a hallway, and into a stairwell.

While descending the stairs, Phillips and Waldrop passed by defendant and then Henderson fired

gunshots. Everybody ran. Henderson was seen running out of the building with gloves on and a gun

in his right hand.

¶ 10   Officer Pete Wullbrandt responded to the scene; there was screaming and a large crowd

outside. When he entered the building he saw Phillips lying in a large pool of blood on the floor,

between the elevators and a door leading to a stairwell. According to Wullbrandt, Phillips was

unconscious, bleeding, and had what “appeared to be a gunshot [wound]” on the top of his head.

Officer Don Flowers also arrived on the scene, which he described as “chaos. A lot of people

running around, yelling somebody had been shot.” Flowers entered the lobby and saw Phillips lying

on the floor, bleeding from his head. Bullet holes, fragments, and jackets were found in the stairwell

and near the elevators outside the stairwell door. The bullet jackets reflected that they could have

been fired from a .357-class of firearm. No casings were found, which was consistent with the

weapon being a revolver.

¶ 11    Waldrop died in surgery at the hospital. He had sustained three gunshot wounds and blunt

force trauma to the back of his head. Specifically, Waldrop had four lacerations on the top of the

back of his head, ranging from one-fourth of an inch to three-fourths of an inch in length and, under



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2013 IL App (2d) 120945


the longest laceration, a skull fracture. The forensic pathologist testified that, hypothetically

speaking, the lacerations could have come from Waldrop being pistol-whipped.

¶ 12   Defendant’s friend, Earl James, testified in exchange for a deal with the State. James had

known defendant for several years, assumed defendant was a Gangster Disciple, and he had spent

time with defendant in the same jail cell. While there, defendant told James that he gave Henderson

the gun while they were outside the apartment building and that he then he returned to the apartment

party while Henderson went into the stairwell. Defendant told James that he had escorted Phillips

and Waldrop to the stairwell, but that they proceeded downstairs in front of him. Defendant heard

gunshots, went downstairs and “looked at the two that was shot in the doorway,” and then went back

upstairs. Defendant told James that he did not think “they” would get shot.

¶ 13   Officer William Rowley interviewed defendant. According to Rowley, during the interview,

defendant recounted that, after hearing the gunshots, he exited the stairwell, “saw that two people

had been shot,” and returned up the stairs.

¶ 14   Officer Kevin Jenkins also interviewed defendant, who initially denied any involvement in

the shootings. Defendant later admitted that he knew of the dispute between Henderson and the Low

Ends where someone snatched a chain from Henderson’s neck. Defendant admitted that he had

obtained Townes’ gun while inside the building that night. He conceded that Henderson was the

shooter and that he admitted Henderson into the elevator lobby through a secured door; Henderson

then entered the stairwell and defendant took an elevator upstairs to a party where Waldrop and

Phillips were present. Defendant told Jenkins that, after leaving the party, Waldrop asked defendant

to walk him downstairs. After entering the stairwell, defendant heard shots being fired as people




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reached the bottom of the stairs. Defendant saw Henderson “shooting at the two subjects” at the

bottom of the stairs.1

¶ 15   In closing arguments, the State commented:

       “All we have to do is show that he aided or abetted in some way. And how do we know

       that? How do we know, how have we proven to you that he aided or abetted? We’ve done

       it through his actions and through his words, spoken to his friends and his fellow Gangster

       Disciples that night and afterwards.”

The State then noted that the evidence reflected that defendant had commented, “We on some

bullshit” and “watch what me and Bling about to do,” and that he obtained and then gave Henderson

a gun. The State further argued that the video recordings showed defendant giving Henderson access

to the building and then, by leading them to the stairwell, giving Henderson access to the victims.




       1
           The apartment building contained a network of surveillance video cameras, although no

cameras existed in the stairwell. The video recordings from the night at issue (which were stipulated

to and entered into evidence) showed defendant: (1) admitting a person wearing a hooded sweatshirt

(i.e., Henderson) through the secured door of the elevator lobby and into the building’s stairwell; (2)

thereafter getting on the elevator; and (3) leading Waldrop and Phillips from the apartment, down

an upstairs hallway, and to the stairwell. The recordings also apparently showed Waldrop falling

through the stairwell door in the elevator lobby and a hooded figure standing over him with a hand

extended and a silver object in the hand. Further, the recordings showed Phillips lying on the floor

in the background. Finally, defendant is seen stepping over Phillips as if to leave the stairwell, but

then he steps back over Phillips and returns upstairs.

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¶ 16   Defense counsel, in turn, commented in closing, “Why would [defendant] be angry? Why

would he want to conspire with anybody to have what were his friends, Waldrop and Phillips,

murdered? It doesn’t make sense.”

¶ 17   The jury convicted defendant of first-degree murder and attempted first-degree murder. In

special-verdict forms, the jury found that the State did not prove that defendant was armed with a

firearm during the commission of the offenses.

¶ 18                                  B. Posttrial Proceedings

¶ 19   Defense counsel moved for a new trial and argued that the verdicts were inconsistent. The

court denied the motion and, on January 9, 2009, sentenced defendant to consecutive terms of 25

years’ imprisonment for first-degree murder and 8 years’ imprisonment for attempted murder.

Defendant appealed. On January 27, 2009, however, defendant filed a pro se motion for a new trial,

which included allegations of ineffective assistance, and a motion to reconsider the sentence.

Accordingly, on October 16, 2009, this court dismissed defendant’s appeal.

¶ 20   Thereafter, on December 3, 2009, defendant filed before the trial court a pro se supplemental

motion, alleging, among other things, ineffective assistance of counsel. The State moved to strike

the motion, in part on timeliness grounds. On January 13, 2010, defendant appeared before the court

and requested an attorney; the trial judge explained that defendant was not, at that stage, entitled to

appointed counsel, but it granted a continuance so that defendant could try to obtain private counsel.

In July 2010, the court denied the State’s motion to strike and granted defendant leave to file an

amended pro se motion with specific allegations supporting his ineffective-assistance claims. On

October 19, 2010, defendant amended his motion and asserted approximately 15 claims of

ineffective assistance, encompassing counsel’s alleged failures to: (1) make certain objections and



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2013 IL App (2d) 120945


file certain motions; (2) present certain evidence; (3) properly cross-examine various witnesses; and

(4) present and interview witnesses who could have testified on defendant’s behalf. Defendant

attached to his motion four affidavits from witnesses claiming that they were willing to testify on

defendant’s behalf but were not contacted by counsel.

¶ 21   Defendant’s case was transferred to another judge. On February 16, 2011, that judge (who,

we note, did not preside over defendant’s trial) held a hearing pursuant to People v. Krankel, 102 Ill.

2d 181 (1984).2 At the commencement of the hearing, the State summarized for the court the

procedural posture of the case, noting that, according to Krankel and its progeny, including People

v. Serio, 357 Ill. App. 3d 806 (2005), to warrant appointment of counsel and further proceedings,

defendant’s allegations of ineffective assistance must be sufficiently detailed and may not simply

challenge counsel’s trial strategy. The court announced that it would give defendant the opportunity

to say what he wished about each claim, and that the State would also be given an opportunity to be

heard. Thereafter, the court stated that it would make a determination under Krankel with regard to

whether the case would move forward on the claims.

¶ 22   At the hearing, the court’s procedure was to ask defendant to explain each claim and then ask

the State for its position. The State’s position on each claim was that the court did not need to

further inquire about the claim, for a variety of reasons. For example, the State asserted that several

claims were not sufficiently specific. On one claim, the State argued that the law did not require it

to do what defense counsel allegedly should have requested. The State asserted that other claims

related to matters of trial strategy. For example, on one claim, defense counsel responded under oath



       2
           Hearings investigating pro se claims of ineffective assistance of counsel, held pursuant to

People v. Krankel, 102 Ill. 2d 181 (1984), are commonly referred to as Krankel hearings.

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2013 IL App (2d) 120945


that he did not call a particular witness because “we went through this stuff, we chose not to call

him.” The State interjected, “Judge, if I could add one other thing. I am not sure what went into

[defense counsel’s] decision or not, but my memory *** of [the witness is that he] has an extensive

criminal history, which probably would have, I know I would have used to impeach him as a witness,

and I don’t know, like I say, I can’t say whether that would be [defense counsel].” Defense counsel

then interjected, “that’s part of it. We didn’t believe he would be credible.” Defendant then

interjected, “It wasn’t up to either one of those, it’s up to the trier of fact to decide whether he was

credible or not. Just like everybody that came on the stand had an extensive background, cases

pending ***.” The court found no basis for any of the claims. The State then asked the court to not

only deny defendant’s request to appoint counsel, but also to deny the motion for a new trial. The

court did so.

¶ 23    On April 20, 2011, defendant filed a motion to reconsider his convictions. The court granted

the State’s motion to strike it as untimely because it was filed more than 30 days after the denial of

the motion for a new trial.

¶ 24    The court appointed counsel to represent defendant on his pro se motion to reconsider his

sentence, and appointed counsel amended the motion. The case was transferred to another judge,

who, on August 23, 2012, denied the amended motion. Defendant filed his notice of appeal that

same day.

¶ 25                                       II. ANALYSIS

¶ 26                               A. Sufficiency of the Evidence

¶ 27    Defendant argues first that he was not proved guilty beyond a reasonable doubt of attempted

first-degree murder where the jury was presented with no credible evidence that Phillips’ injury was

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caused by a gunshot. Defendant notes that the State presented no medical evidence establishing that

Phillips was shot or injured in any way by Henderson. He argues that the evidence showed only that

police found Phillips lying on the floor with a bleeding head injury that could have been caused by

a number of people during the panic and chaos immediately following the shooting of Waldrop.

“Because the State failed to prove what caused Phillips’ injury, there was not proof beyond a

reasonable doubt that Henderson, and by an accountability theory, the defendant, had the intent to

kill Phillips.” Defendant asks that we vacate his attempted first-degree murder conviction. For the

following reasons, we reject defendant’s sufficiency-of-the-evidence argument.

¶ 28     When we review the sufficiency of the evidence, the relevant question is “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original

and internal quotation marks omitted.) People v. Cooper, 194 Ill. 2d 419, 430-31 (2000). We will

not substitute our judgment for the trier of fact’s and will not reweigh the evidence. Id. at 431. It

is the trier of fact’s responsibility to resolve conflicts in the testimony, weigh the evidence, and draw

reasonable inferences therefrom. Id.

¶ 29    Here, the evidence was sufficient for the jury to find beyond a reasonable doubt that Phillips

sustained a gunshot wound. First, the evidence showed that gunshots were fired in a crowded

stairwell. Second, bullet holes, fragments, and jackets were found in the stairwell and near the

elevators outside the stairwell door, where Phillips was found lying in a pool of blood. Second,

Wullbrandt testified that Phillips was unconscious, bleeding, and had what “appeared to be a gunshot

[wound]” on the top of his head. Third, according to James, defendant told him that, before

returning up the stairs, he “looked at the two that was shot in the doorway” (emphasis added) and

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said that he did not think that “they” would be shot. Fourth, in his interview with Rowley, defendant

stated that, before returning upstairs, he saw that “two people had been shot.” (Emphasis added.)

Finally, according to Jenkins, defendant said that, as people reached the bottom of the stairwell, he

saw Henderson “shooting at the two subjects.” (Emphasis added.) Viewing the evidence in the

State’s favor, the jury could have reasonably found beyond a reasonable doubt that Phillips was shot.

¶ 30   Defendant notes that nevertheless the State presented no medical evidence of Phillips’ injury

and that the evidence that was presented provided alternative, reasonable explanations for it. For

example, defendant notes that Waldrop sustained injuries to the back of his head that, according to

the pathologist, could have been caused by pistol-whipping; therefore, Phillips’ head injury might

also have been caused by pistol-whipping. Also, defendant notes that the evidence reflected chaos

in the stairwell following the shooting, and therefore someone other than Henderson could have

injured Phillips. We reject defendant’s argument. The State was not required to exclude every

reasonable alternative explanation consistent with defendant’s innocence (People v. Larson, 379 Ill.

App. 3d 642, 654 (2008)), and the jury was free to reject these hypothetical alternative explanations

for Phillips’ head injury. Although the evidence was circumstantial, the finding that Phillips’ injury

was caused by a gunshot was clearly a reasonable inference to be drawn from the evidence.

¶ 31   Further, we note that, to prove defendant guilty of attempted murder, the State needed to

show only that defendant (again, defendant does not challenge the accountability finding) intended

to kill and took a substantial step toward killing his intended victim. People v. Smith, 402 Ill. App.

3d 538, 547 (2010). Intent to kill may be inferred from the circumstances surrounding the

commission of the offense. People v. Miller, 284 Ill. App. 3d 16, 24 (1996). Given the evidence

reflecting that defendant acquired Townes’ gun; defendant gave a gun to Henderson outside the

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building; defendant admitted Henderson into the building and the stairwell; defendant led Phillips

and Waldrop from the party into the stairwell; and that multiple gunshots were subsequently fired

into the crowded stairwell, the jury could reasonably have concluded beyond a reasonable doubt that,

via Henderson, defendant intended that Phillips be killed and took a substantial step toward doing

so. Accordingly, we reject defendant’s sufficiency-of-the-evidence argument.

¶ 32            B. Ineffective Assistance of Counsel: Evidence of Gang Affiliation

¶ 33    Defendant argues next that he was deprived of a fair trial because his counsel failed to object

to prejudicial gang evidence. Defendant argues that the State did not establish that the conflict

between defendant and the victims was gang-related and, therefore, that the evidence concerning the

parties’ gang affiliations, as well as the State’s reference to it in its closing argument, was irrelevant

and overly prejudicial. Defendant does not specifically argue that the trial court abused its discretion

in admitting the evidence, as he agrees that his counsel never objected to it. Instead, defendant

asserts that his counsel was ineffective for failing to object.

¶ 34    To state a constitutional claim of ineffective assistance of counsel, a defendant must allege

facts to show that counsel’s performance was objectively unreasonable (i.e., deficient performance)

and that it is reasonably probable that, but for counsel’s deficient performance, the result of the

proceeding would have been different (i.e., prejudice). Strickland v. Washington, 466 U.S. 668, 687

(1984); People v. Albanese, 104 Ill. 2d 504, 525-26 (1984). If the defendant fails to establish either

prong, his ineffective-assistance claim fails. Strickland, 466 U.S. at 687. “If it is easier, a court may

proceed directly to the second prong of Strickland and dismiss an ineffective assistance claim on the

ground that it lacks sufficient prejudice, without first determining whether counsel’s performance

was deficient.” People v. Valladares, 2013 IL App (1st) 112010, ¶ 70; see also Albanese, 104 Ill.

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2013 IL App (2d) 120945


2d at 527. To establish prejudice, the defendant must show a reasonable probability that, absent

counsel’s alleged error, the trial outcome would have been different. People v. Evans, 209 Ill. 2d

194, 220 (2004). “A reasonable probability of a different result is not merely a possibility of a

different result.” (Emphasis added.) Id.

¶ 35   Here, even if we were to assume that, by not objecting to the gang evidence, counsel’s

performance was objectively unreasonable,3 defendant’s ineffective-assistance claim fails because

he cannot establish the required prejudice. Specifically, defendant cannot establish a reasonable

probability that, absent the gang-related evidence, he would have been acquitted. The evidence of

defendant’s guilt was overwhelming. (Again, defendant does not challenge the sufficiency of the

evidence that led to his conviction of first-degree murder, and we have rejected his challenge to the

sufficiency of the evidence that resulted in his attempted murder conviction.) Setting aside the

testimony regarding gang membership, the jury heard evidence that defendant acquired Townes’ gun

inside the apartment building, was seen outside the apartment building with Henderson (while

Henderson was putting on white gloves), and gave Henderson a gun while outside the building.

Video recordings showed defendant letting Henderson into the building and the stairwell, proceeding



       3
           We note that, although information regarding gang membership is prejudicial, the evidence

here was relatively minimal and not particularly inflammatory. In essence, the cast of characters was

identified and placed in their gang factions to provide context to the events and an otherwise

unexplainable act (i.e., why defendant and Henderson, who, as defense counsel argued in closing,

were “friends” of the victims, would want to cause them harm). Even if the fact of gang membership

cast defendant in a negative light, it arguably also cast the same shadow on Waldrop and Phillips.

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upstairs in the elevator, and then leading Phillips and Waldrop down the hallway to the stairwell.

The jury heard evidence that defendant essentially confirmed these events to James and to police in

his interviews with them. As such, there is no reasonable probability that, if defense counsel had

successfully moved to exclude evidence of gang membership, defendant would have been acquitted.

Accordingly, defendant’s ineffective-assistance argument as to the failure to object to gang evidence

fails.

¶ 36                                 C. Pro Se Posttrial Motion

¶ 37     Defendant’s final argument is that the procedure used by the trial court during the Krankel

hearing improperly converted the inquiry into an adversarial evidentiary hearing wherein he was not

represented by counsel. We agree.

¶ 38     When a defendant files a pro se posttrial motion alleging ineffective assistance of counsel,

he or she is not automatically entitled to the appointment of counsel to assist with the motion.

People v. Moore, 207 Ill. 2d 68, 77 (2003). Rather, the trial court should first examine the bases of

the defendant’s claims; if the court determines that the claims lack merit or pertain only to trial

strategy, the court may deny the pro se motion without appointing counsel. Id. at 77-78. If the court

determines that the claims demonstrate that counsel possibly neglected the defendant’s case, new

counsel should be appointed to represent the defendant at the hearing on the pro se motion. Id. at

78. New counsel may also independently evaluate the defendant’s claims. Id.

¶ 39     In conducting the inquiry into the defendant’s claims, the trial court will likely need to

discuss the allegations with the defendant or with the defendant’s trial counsel. “[S]ome 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

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action, if any, is warranted ***.” Id. Accordingly, to evaluate whether the claims indicate possible

neglect, the trial court may consider any facial insufficiency of the defendant’s allegations and may

(1) ask the defendant’s trial counsel questions; (2) briefly discuss the allegations with the defendant;

or (3) rely upon its own knowledge of counsel’s performance. Id. at 78-79. We review de novo the

manner in which the trial court conducted its Krankel hearing. Id. at 75.

¶ 40    Although a trial court’s method of inquiry at the Krankel hearing is somewhat flexible (by

virtue of its ability to ask questions of the defendant, the defendant’s counsel, etc.), and we can

envision a situation where the State may be asked to offer concrete and easily verifiable facts at the

hearing, no case law suggests that the State should be an active participant during the preliminary

inquiry. In fact, typically, virtually no opportunity for State participation is offered during the

preliminary inquiry. See, e.g., Moore, 207 Ill. 2d at 73-74; People v. Chapman, 194 Ill. 2d 186, 227-

29 (2000); People v. Robinson, 157 Ill. 2d 68, 85-86 (1993); People v. Nitz, 143 Ill. 2d 82, 134-35

(1991); People v. McCarter, 385 Ill. App. 3d 919, 926-27 (2008); People v. Bolton, 382 Ill. App. 3d

714, 716 (2008); People v. Ford, 368 Ill. App. 3d 271, 273-74 (2006); People v. Peacock, 359 Ill.

App. 3d 326, 330, 339-40 (2005); People v. Gilmore, 356 Ill. App. 3d 1023, 1030, 1036-37 (2005);

People v. Cummings, 351 Ill. App. 3d 343, 351-52 (2004); People v. Cabrales, 325 Ill. App. 3d 1,

5-6 (2001). If the State’s participation during the initial investigation into a defendant’s pro se

allegations is anything more than de minimis, there is a risk that the preliminary inquiry will be

turned into an adversarial proceeding, with both the State and trial counsel opposing the defendant.

That is exactly what occurred here.

¶ 41    In this case, the trial court invited at least equal participation by the State into the preliminary

inquiry of defendant’s pro se ineffective-assistance claims. The court went through defendant’s

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allegations one-by-one, allowing defendant to comment and then allowing the State to comment and

provide counterarguments on defendant’s claims. At one point, defense counsel explained his

actions and then the State interjected an additional possible explanation for defense counsel’s

actions, at which point both defense counsel and the State were, essentially, opposing defendant as

he argued his position. On appeal, the State, citing Cabrales, acknowledges that this court has

“frowned upon” an adversarial edge to a Krankel hearing, and it concedes that it has found no case

that has allowed the prosecution to make argument during the preliminary inquiry. However, it

asserts that its participation was focused primarily on noting the lack of specificity of particular

claims and that other claims merely challenged trial strategy. However, even arguing that the claims

warranted no further inquiry because they attacked strategy or were not specific was, in fact,

advocating a position against defendant. Where the trial court, at various times, allowed both

defense counsel and the State to assert that defendant’s claims warranted no further investigation,

the hearing changed from one consistent with Krankel and its progeny to an adversarial hearing

where defendant, without waiving his right to be represented, was forced, unrepresented, to argue

the merits of his claims. See People v. Finley, 63 Ill. App. 3d 95, 103 (1978) (defendant is entitled

to representation on posttrial motions).

¶ 42   The State argues that we should find that its participation in the hearing was harmless, since

the trial court’s bases for denying each of defendant’s claims were (it alleges) correct. We decline

to do so. The case the State cites to support finding harmless error concerns the trial court’s

substantive rulings on pro se allegations, but it does not address a context where the proceeding itself




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was conducted in an erroneous fashion. See People v. McLaurin, 2012 IL App (1st) 102943, ¶ 42.4

Other courts have reversed and remanded when the preliminary inquiry morphed into an adversarial

hearing with the State participating and the defendant appearing pro se. See Cabrales, 325 Ill. App.

3d at 6; see also Moore, 207 Ill. 2d at 81. As such, we follow the same procedure. We remand for

a new preliminary inquiry, before a different judge (Cabrales, 325 Ill. App. 3d at 6) and without

adversarial State participation, into defendant’s pro se claims.

¶ 43                                     III. CONCLUSION

¶ 44   For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed in

part and reversed in part, and the cause is remanded with directions.

¶ 45   Affirmed in part and reversed in part; cause remanded with directions.




       4
           We also note that here the trial judge who presided over the hearing did not preside over

defendant’s trial. Accordingly, we cannot conclude that any error was harmless because the judge

was in a position to independently and without State input evaluate defendant’s claims based on facts

within his or her own knowledge. See Cabrales, 325 Ill. App. 3d at 6.

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