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                               Appellate Court                            Date: 2019.02.19
                                                                          14:18:39 -06'00'




                  People v. Roddis, 2018 IL App (4th) 170605



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            RYAN M. RODDIS, Defendant-Appellant.



District & No.     Fourth District
                   Docket No. 4-17-0605



Filed              November 21, 2018



Decision Under     Appeal from the Circuit Court of Macon County, No. 12-CF-897; the
Review             Hon. Thomas E. Griffith Jr., Judge, presiding.



Judgment           Reversed and remanded with directions.


Counsel on         James E. Chadd, Jacqueline L. Bullard, and Ryan R. Wilson, of State
Appeal             Appellate Defender’s Office, of Springfield, for appellant.

                   Jay Scott, State’s Attorney, of Decatur (Patrick Delfino, David J.
                   Robinson, and David E. Mannchen, of State’s Attorneys Appellate
                   Prosecutor’s Office, of Counsel), for the People.



Panel              JUSTICE STEIGMANN delivered the judgment of the court, with
                   opinion.
                   Presiding Justice Harris and Justice Knecht concurred in the judgment
                   and opinion.
                                                OPINION

¶1         In June 2012, the State charged defendant, Ryan M. Roddis, with aggravated domestic
       battery (720 ILCS 5/12-3.3(a), 12-3.2(a)(1) (West 2010)). Following a bench trial, the trial
       court found defendant guilty and sentenced him to six years in prison. Defendant filed pro se a
       motion to reduce sentence that also alleged that his trial counsel was ineffective. The trial court
       dismissed the motion as untimely.
¶2         On direct appeal, this court upheld defendant’s conviction and sentence but remanded for a
       hearing in compliance with People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984).
       People v. Roddis, 2016 IL App (4th) 140631-U, ¶ 3.
¶3         On remand, the trial court initially appointed new counsel to represent defendant on his
       ineffective assistance of counsel claims. However, at a subsequent hearing, the trial court
       allowed that counsel to withdraw because of a potential conflict.
¶4         In January 2017, the trial court conducted a hearing purportedly pursuant to this court’s
       remand but deemed it a hearing on defendant’s ineffective assistance claims. After reviewing
       defendant’s written claims and questioning him and his trial counsel, the court found that the
       allegations did not amount to ineffective assistance of counsel. The court then appointed new
       counsel to represent defendant on his motion to reduce sentence. In August 2017, the court
       denied that motion.
¶5         Defendant appeals, arguing that the trial court erred by (1) addressing the merits of his
       ineffective assistance of counsel claims instead of determining whether new counsel should
       have been appointed and (2) not appointing new counsel because defendant showed “possible
       neglect of the case.” We agree with defendant’s first argument, vacate the trial court’s order,
       and remand with directions.

¶6                                         I. BACKGROUND
¶7                                 A. The Bench Trial and Conviction
¶8         In June 2012, the State charged defendant with aggravated domestic battery (720 ILCS
       5/12-3.3 (West 2010)), alleging that he pushed his girlfriend, Meghan Collins, causing her
       head to hit a door, resulting in a laceration. Defendant was initially represented by Philip
       Tibbs. However, defendant later retained new counsel, Baku Patel, and fired Tibbs.
¶9         At defendant’s December 2013 bench trial, Collins testified that, in June 2012, defendant
       was living at her apartment with their daughter. Defendant and Collins were arguing; she asked
       him to leave, and he refused. Defendant then picked up a pillow from the back of the couch,
       moved toward Collins, and began to throw the pillow out the door. Collins pushed the pillow
       down to prevent defendant from throwing it. Defendant then pushed Collins’s head, which hit
       the corner of the open door, causing a laceration. Collins ran upstairs to the bathroom and
       called the police. Collins was later treated at the hospital and received staples to close the
       laceration on her head.
¶ 10       On cross-examination, Collins testified that although she told the police that defendant
       punched her multiple times, that is not what happened. She also admitted she was currently
       being charged with filing a false police report. Collins testified that she did not believe
       defendant meant to push her head into the door. Collins admitted she had communicated with


                                                    -2-
       defendant by text message and told him she thought he did not mean to push her head against
       the door.
¶ 11       Decatur police officer Scott Bibby responded to Collins’s apartment. He stated that Collins
       had a laceration on her head. Defendant told Bibby the two were arguing and he threw a couch
       cushion at Collins to get her to stop yelling. Defendant said he did not mean to hit Collins but
       the cushion struck her in her head, and her head then collided with the door. Collins told Bibby
       that defendant had punched her in the head multiple times.
¶ 12       An emergency room physician testified that (1) she treated Collins for a laceration to her
       head, (2) the laceration required three staples to close, and (3) Collins reported the laceration
       was caused by someone grabbing her head and hitting it against a door.
¶ 13       Defendant testified that he was living with Collins and their daughter in June 2012. He and
       Collins were arguing when she told him to leave and began throwing his belongings out of the
       front door. Defendant told Collins if she was going to throw his things out, he was going to
       throw his couch outside. He picked up a large seat cushion and threw it toward the open door
       when it struck Collins in her head, causing her head to hit the door.
¶ 14       Patel asked defendant if Collins had stayed in contact with him. Defendant responded that
       Collins had threatened to testify against him if he did not give her money. Patel then asked if
       Collins admitted to him that she thought it was an accident, and defendant said she did.
¶ 15       During closing arguments, Patel argued the State failed to prove defendant knowingly
       caused great bodily harm because Collins admitted her injury was the result of an accident,
       which was also consistent with defendant’s version of events. The State argued that
       (1) defendant knowingly committed battery and (2) the State did not need to prove the
       defendant intended to cause great bodily harm.
¶ 16       The trial court found defendant guilty of aggravated domestic battery, explaining that it did
       not find defendant’s story credible. In February 2014, the court sentenced defendant to six
       years in prison. (We note that defendant had eight prior felony convictions.)

¶ 17                                 B. The Postsentence Proceedings
¶ 18       In June 2014, defendant pro se filed a motion for reduction of sentence that also raised
       claims of ineffective assistance of counsel. At a hearing at which defendant was not present,
       the trial court dismissed defendant’s motion as untimely.
¶ 19       Defendant appealed, arguing that (1) the evidence was insufficient to prove him guilty
       beyond a reasonable doubt and (2) the trial court erred when it dismissed his pro se posttrial
       claims of ineffective assistance of counsel without conducting a Krankel hearing. In July 2016,
       this court affirmed defendant’s conviction and sentence but remanded for a hearing in
       compliance with Krankel on defendant’s posttrial claims of ineffective assistance of counsel.
       Roddis, 2016 IL App (4th) 140631-U, ¶ 3.

¶ 20                                 C. The Proceedings on Remand
¶ 21                                      1. The Initial Hearing
¶ 22       In September 2016, on remand, the trial court conducted a hearing at which defendant was
       present. The court stated the case had been remanded for the court to consider defendant’s
       claims of ineffective assistance of counsel. The court then asked defendant if he was going to
       represent himself “on this matter or do you want me [to] consider[ ] appoint[ing] counsel?”

                                                   -3-
       Defendant responded that he wanted the court to consider appointing counsel but was told by
       his appellate attorney that it was in the court’s discretion based on the merits of his claims. The
       court then stated, “I’m not sure counsel is necessary, but I think counsel is always better, at
       least to perhaps to get me organized.” The court asked the State if it disagreed, and the State
       said it thought “it[ ] [was] a good idea.” The trial court appointed public defender Rodney
       Forbes to represent defendant and continued the matter for a status hearing.

¶ 23                                 2. The Subsequent Status Hearings
¶ 24        Later in September 2016, Forbes appeared on defendant’s behalf and stated that the case
       had been remanded for a Krankel hearing. The trial court then stated that the case needed to be
       set for a “pre-inquiry Krankel hearing.” Forbes agreed and requested additional time to review
       the file, speak with his client, and file any amended pleading if necessary. The court granted his
       request and continued the matter.
¶ 25        In November 2016, Forbes appeared for defendant, who was also present personally. The
       trial court recounted the procedural history of the case and then the following exchange took
       place:
                    “THE COURT: [The appellate court] sent the matter back for a hearing in
                compliance with Krankel.
                    And I think, Mr. Forbes, I want to certainly allow you a chance to speak, but I can
                probably proceed at this point with a pre-inquiry Krankel hearing before I proceed to a
                full-blown Krankel hearing. Would you agree with that procedural assessment, Mr.
                Forbes?
                    MR. FORBES: Well, Your Honor, in this case I was appointed to represent this
                defendant. Normally, I wouldn’t be appointed at a pre-Krankel inquiry.
                    THE COURT: Correct.
                    MR. FORBES: Normally, a pre-Krankel inquiry the attorney would be—
                    THE COURT: Proceed with the prior lawyer.
                    MR. FORBES: Right. And so that way the court can inquire as to matters of
                strategy and such. So I know this is set for pre-Krankel inquiry on today’s date. I was
                prepared to represent the defendant. I have received several affidavits and
                correspondence from the defendant. I understand the gist of his claims. He is claiming
                ineffective assistance of counsel from his prior counsel, Mr. Patel.
                    THE COURT: So you think we would be safer, in a nutshell, Mr. Forbes, to
                probably just proceed with an ordinary Krankel hearing, I think is what I am hearing
                from you?
                    MR. FORBES: Well, yes, I do. And then also I need to inform the court that as
                public defender, I briefly represented the alleged victim in this case, Megan Collins. I
                represented her at [a] preliminary [hearing]. Her case was assigned to an assistant
                public defender. That was during while this case was pending.”
¶ 26        Forbes indicated that there may be a conflict. (As best we can tell, Forbes’s representation
       of Collins was unconnected with the charges against defendant.) The trial court commented
       that Patel was not present and, in order to properly conduct the hearing, he would need to
       appear. Forbes then moved to withdraw until the court would conduct a hearing to determine if
       new counsel was required.

                                                    -4-
¶ 27       The trial court asked defendant if he had a position regarding Forbes’s withdrawing.
       Defendant stated that he “would like to ask him to represent me because he understands my
       case.” Nonetheless, the court granted Forbes’s motion to withdraw over defendant’s objection
       and noted that it believed it could proceed with a “pre-inquiry Krankel” hearing without
       Forbes’s representing defendant. The court then discussed with the parties how Patel’s
       presence at the next hearing would be secured.
¶ 28       Finally, the trial court explained to defendant what would take place at the next hearing.
       The court stated it had “to get through one step before Mr. Forbes’ involvement in this case
       becomes necessary.” The court added that at the next hearing, defendant would be allowed to
       elaborate on the claims raised in his motion alleging ineffective assistance of counsel. Then
       Patel would be allowed to respond. The State would be present, but the State’s “involvement
       on that date is to be almost nothing.” The court further stated that if it found the allegations
       directed at Patel were “well-grounded,” then either Forbes or someone else would be
       appointed to represent defendant.

¶ 29                                   3. The January 2017 Hearing
¶ 30        In January 2017, the trial court conducted what it called a “pre-inquiry Krankel” hearing.
       At the hearing, defendant was present pro se, as were his earlier trial attorneys, Patel and
       Tibbs. Also present was the prosecutor. Forbes was not present.
¶ 31        The trial court began by outlining the procedure it would follow. The court said that it
       would first summarize each allegation. Then defendant would be allowed to elaborate and trial
       counsel would be permitted to respond. The court then stated that after hearing from counsel, it
       would “rule as to whether or not I find that there was ineffective assistance in this situation.”
       The court later added that “once we determine where we are at the end of the day, if the
       allegations are denied, I’ll probably go ahead and appoint you counsel *** and then we’ll deal
       with the rest of your motion for reduction of sentence. If I find that the allegations are founded,
       I’ll have to appoint separate counsel, and we will proceed to a full-blown Krankel hearing.”
       The hearing then proceeded as described.
¶ 32        Defendant primarily contended that his trial counsel was ineffective for failing to impeach
       Collins with various text messages. Defendant explained that he gave his attorney copies of
       texts and emails from Collins in which she said she would speak to defendant’s lawyer for
       $1000, that she had been “playing” him the whole time to get money, and that the incident was
       an accident. However, Patel did not impeach Collins with these messages on
       cross-examination.
¶ 33        Patel responded that, from what he remembered, he got Collins to admit she thought her
       injuries were the result of an accident. Patel explained that once Collins admitted it was an
       accident, he had all the impeachment he needed to show defendant did not knowingly cause
       great bodily harm.
¶ 34        Defendant also alleged his counsel (1) “tricked” him into waiving his right to a jury trial,
       (2) indicated that counsel personally knew the judge, and (3) assured defendant that the State
       would dismiss the charges or offer a lower plea once it saw the victim’s text messages. Patel
       and Tibbs denied making any such representations.
¶ 35        Defendant then presented a letter Patel had written to the Attorney Registration and
       Disciplinary Commission (ARDC) in response to a complaint defendant had made about


                                                    -5-
       Patel’s failure to use Collins’s text messages in his defense. In the letter, Patel stated he
       “conduct[ed] a thorough cross[-]examination of the victim, including questioning her
       regarding emails and text messages.” At the hearing, Patel stated he stood by what he wrote in
       his letter.
¶ 36       The trial court then stated that it had considered the pleadings, the ARDC letter, and the
       statements of defendant and his previous lawyers and found “the defendant’s allegations do not
       amount to ineffective assistance of counsel.” Accordingly, the court would “not proceed to a
       full Krankel hearing.” The court stated it thought defendant was “well represented” and that
       the case was “one of credibility.” The court noted that despite the evidence that impeached
       Collins’s testimony, the court found Collins credible while defendant was not. The court
       concluded, “I’m satisfied that you were properly represented” and found again “that there was
       no ineffective assistance.”
¶ 37       Nonetheless, the court appointed the public defender to represent defendant on the
       remainder of his posttrial motion, which was a motion to reduce sentence.

¶ 38                                 4. The Remaining Proceedings
¶ 39       In July 2017, defendant’s new counsel filed an amended motion for reduction of sentence,
       arguing the trial court erred by failing to consider the financial impact when it sentenced
       defendant. In August 2017, the trial court denied defendant’s amended motion.
¶ 40       This appeal followed.

¶ 41                                         II. ANALYSIS
¶ 42       Defendant appeals, arguing that the trial court erred by (1) addressing the merits of his
       ineffective assistance claims instead of determining whether counsel should have been
       appointed and (2) not appointing new counsel because defendant showed “possible neglect of
       the case.” We agree with defendant’s first argument, vacate the trial court’s order, and remand
       with directions.
¶ 43       The record in the present case reveals that the trial court misunderstood both the purpose of
       a Krankel hearing and how one should be conducted. Because we have seen too many cases in
       which trial courts suffer from the same confusion, we believe a thorough discussion of Krankel
       hearings might be helpful.

¶ 44                                       A. Krankel Hearings
¶ 45       In Krankel, the defendant filed pro se a posttrial motion, alleging his trial counsel was
       ineffective for failing to contact an alibi witness or present an alibi defense at trial. Krankel,
       102 Ill. 2d at 187. The defendant personally argued his pro se motion, which the trial court
       denied. Id. at 188-89. On appeal, the State conceded that the defendant should have had new
       counsel represent him on the motion. Id. at 189. The supreme court agreed and remanded the
       case for a new hearing on the motion with different counsel to determine whether the defendant
       was denied the effective assistance of counsel. Id.

¶ 46                                  1. The Krankel Inquiry
¶ 47       The common law procedure first recognized in Krankel “serves the narrow purpose of
       allowing the trial court to decide whether to appoint independent counsel to argue a

                                                   -6-
       defendant’s pro se posttrial ineffective assistance claims.” (Emphasis added.) People v.
       Patrick, 2011 IL 111666, ¶ 39, 960 N.E.2d 1114. Thus, “a Krankel hearing is a term of art to
       describe the hearing the court must conduct when a defendant pro se has raised a posttrial
       claim regarding his counsel’s ineffective assistance.” People v. McGath, 2017 IL App (4th)
       150608, ¶ 51, 83 N.E.3d 671. The only issue to be decided at a Krankel hearing is whether new
       counsel should be appointed. Id.; Patrick, 2011 IL 111666, ¶ 39. Accordingly, there are only
       two possible outcomes when a trial court conducts a Krankel hearing: (1) the court appoints
       new counsel who should then conduct an independent investigation into the defendant’s
       ineffective assistance claims and take whatever action counsel thinks would be appropriate or
       (2) the court does not appoint new counsel and posttrial matters proceed as in any other case.
       Accordingly, at a Krankel hearing, the trial court does not—and cannot—reach the merits of an
       ineffective assistance claim; the court simply determines whether it is appropriate to appoint
       new counsel for the defendant to investigate such claims.
¶ 48        The “preliminary inquiry” to which Krankel cases sometimes refer is the preliminary
       inquiry into the factual basis, if any, of a defendant’s claims of ineffective assistance of counsel
       to determine whether appointing new counsel to pursue those claims is necessary. The Illinois
       Supreme Court recently affirmed this principle in People v. Ayres, 2017 IL 120071, ¶ 24, 88
       N.E.3d 732, holding as follows:
                    “The purpose of the preliminary inquiry is to ascertain the underlying factual basis
                for the ineffective assistance claim and to afford a defendant an opportunity to explain
                and support his claim. In this way, the circuit court will have the necessary information
                to determine whether new counsel should be appointed to argue the claim of ineffective
                assistance of counsel.” (Emphasis added.)
       See also Patrick, 2011 IL 111666, ¶ 43 (“The trial court was required to conduct a preliminary
       inquiry into the factual basis of defendant’s [ineffective assistance] allegations.”). If the
       appointment of new counsel is warranted, determining whether the defendant actually received
       ineffective assistance of counsel is for another day; the court does not reach the merits of such
       claims at the Krankel hearing.
¶ 49        Though occasionally mentioned in some cases, there is no true second stage or subsequent
       Krankel inquiry because the sole issue to be resolved at a Krankel hearing is whether new
       counsel should be appointed. Id. ¶ 39. Once the trial court determines whether to appoint new
       counsel, the Krankel inquiry is over; if the court appoints new counsel, the case proceeds
       regarding the defendant’s claims of ineffective assistance as determined by new counsel. Id.
¶ 50        The supreme court explained its rationale for limiting the Krankel hearing to this narrow
       purpose in People v. Jolly, 2014 IL 117142, ¶ 38, 25 N.E.3d 1127. In that case, the court
       addressed the proper scope of the State’s participation in a Krankel hearing and concluded that
       it is reversible error to permit the State to respond to the defendant’s pro se claims or otherwise
       adversarially participate in a Krankel hearing. Id. In reaching that conclusion, the court
       described the Krankel hearing as “neutral and nonadversarial” and an opportunity for the trial
       court to “initially evaluate” a defendant’s pro se claims. Id. ¶¶ 38-39. This initial and
       nonadversarial evaluation is not the forum at which the merits of a claim of ineffective
       assistance of counsel are resolved. See id.
¶ 51        Courts have used the terms “Krankel hearing,” “Krankel inquiry,” “preliminary Krankel
       inquiry,” and words to that effect interchangeably; this lack of consistency may be responsible
       for some of the confusion that exists, as seen in the proceedings in this case. The narrow and

                                                    -7-
       proper function of a Krankel hearing becomes clear when contrasted with a situation in which
       a defendant, who hires new counsel, files a posttrial motion alleging ineffective assistance of
       his original trial counsel. In such instances, no Krankel hearing is necessary because the
       defendant is already represented by counsel to investigate and appropriately pursue the
       defendant’s claims of ineffective assistance of trial counsel. In those cases, courts routinely
       conduct hearings—at which both the defense and State fully participate—on the merits of
       those motions. And no Krankel hearing is necessary because the sole question at a Krankel
       hearing is whether the court should appoint the defendant new counsel to investigate and
       pursue the defendant’s ineffective assistance claims. When the defendant already has hired
       new counsel to do that, the issue of the court’s appointing counsel simply does not exist.
¶ 52       Perhaps terms like “preliminary Krankel hearing” arose because the question of the
       appointment of counsel to pursue pro se claims of ineffective assistance is necessarily
       preliminary to the consideration of such claims on their merits. Whatever the reason, the
       function of the Krankel hearing remains simply to decide whether to appoint counsel—its
       “narrow purpose” (Patrick, 2011 IL 111666, ¶ 39)—and not to reach the merits of the
       ineffective assistance claims. Whether the defendant is then represented by appointed or
       retained counsel, the merits of an ineffective assistance claim are addressed at a subsequent
       hearing in which both parties can participate. Ayres, 2017 IL 120071, ¶ 24.

¶ 53                              2. When a Krankel Hearing Is Required
¶ 54       A Krankel hearing is required “when a defendant raises a pro se posttrial claim of
       ineffective assistance of trial counsel.” Id. ¶ 11. The supreme court recently clarified what little
       a defendant must do:
               “ ‘[A] pro se defendant is not required to do any more than bring his or her claim to the
               trial court’s attention’ (People v. Moore, 207 Ill. 2d 68, 79[, 797 N.E.2d 631] (2003);
               [citation]), and thus, a defendant is not required to file a written motion (Patrick, 2011
               IL 111666, ¶ 29[, 960 N.E.2d 1114]) but may raise the issue orally (People v. Banks,
               237 Ill. 2d 154, 213-14[, 934 N.E.2d 435] (2010)) or through a letter or note to the court
               (People v. Munson, 171 Ill. 2d 158, 200[, 662 N.E.2d 1265] (1996)).” Id.
¶ 55       Further, although a defendant’s bare assertion of “ ‘ineffective assistance of counsel’ ” is
       sufficient to trigger a Krankel hearing (id. ¶ 23), the defendant must nevertheless clearly state
       that he is asserting a claim of ineffective assistance of counsel. Id. ¶ 18. Accordingly, “[i]n
       instances where the defendant’s claim is implicit and could be subject to different
       interpretations, a Krankel inquiry is not required.” People v. Thomas, 2017 IL App (4th)
       150815, ¶ 26, 93 N.E.3d 664 (finding a hearing was not required where defendant failed to
       mention attorney in his letter to trial court complaining about sentence); People v. King, 2017
       IL App (1st) 142297, ¶ 20, 80 N.E.3d 599 (Krankel not implicated when defendant, without
       mentioning her attorney, claimed error because a witness was not called).
¶ 56       A Krankel issue may be raised any time after a conviction but before the trial court’s
       judgment is final. The issue is most commonly raised between conviction and sentencing, but
       need not be. For instance, a defendant, as in the present case, may raise that claim on a motion
       to reconsider sentence.




                                                    -8-
¶ 57                                   3. Krankel Hearing Proceedings
¶ 58       A defendant is not automatically entitled to appointed counsel when he files pro se a
       motion asserting ineffective assistance of counsel. Ayres, 2017 IL 120071, ¶ 11. “Rather, ‘[t]he
       law requires the trial court to conduct some type of inquiry [i.e., a Krankel inquiry] into the
       underlying factual basis, if any, of a defendant’s pro se posttrial claim of ineffective assistance
       of counsel.’ ” Id. (quoting People v. Moore, 207 Ill. 2d 68, 79, 797 N.E.2d 631, 638 (2003)).
¶ 59       Initially, it often is a sound practice for the trial court to discuss the allegations with the
       defendant in open court. Because the function of the Krankel hearing is to give the defendant
       an opportunity to flesh out his claim of ineffective assistance (id. ¶ 20), asking the defendant
       about his claims provides clarity for the record and thereby limits the issues on appeal. Id. ¶ 13.
       In addition, “some interchange between the trial court and trial counsel regarding the facts and
       circumstances surrounding the allegedly ineffective representation is permissible and usually
       necessary in assessing what further action, if any, is warranted on a defendant’s claim.”
       (Internal quotation marks omitted.) Id. ¶ 12. For that reason, the trial court is allowed to ask the
       defendant’s trial counsel to comment on the defendant’s allegations. Id. The trial court may
       also rely upon “its knowledge of defense counsel’s performance at trial and the insufficiency
       of the defendant’s allegations.” Id.
¶ 60       What the trial court may not do, however, is seek input from the State on the merits of the
       defendant’s pro se claims of ineffective assistance of counsel. Jolly, 2014 IL 117142, ¶ 38.
       Doing so converts this initial and nonadversarial proceeding into a contested hearing on the
       merits—a hearing at which the defendant would necessarily be forced to prove the merits of his
       claims pro se against the arguments of the State’s Attorney. Such a hearing “cannot reveal, in
       an objective and neutral fashion, whether the circuit court properly decided that a defendant is
       not entitled to new counsel.” Id. ¶ 39.

¶ 61                            4. When New Counsel Should Be Appointed
¶ 62       As shown by the record in this case, trial courts and counsel are sometimes confused
       regarding the purpose of a Krankel hearing, thinking the issue to be resolved is whether the
       defendant in fact ultimately received ineffective assistance of counsel. As explained earlier,
       this view is not correct. Instead, the sole issue to be resolved by a Krankel hearing is whether
       the court should appoint new counsel for a defendant so that the new counsel can take whatever
       action regarding defendant’s claim of ineffective assistance that counsel thinks would be
       appropriate.
¶ 63       “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.” (Internal quotations marks omitted.) Ayres, 2017 IL 120071, ¶ 11.
¶ 64       It bears mentioning that the purpose of appointing counsel pursuant to Krankel is for new
       counsel to investigate the defendant’s pro se claims of ineffective assistance of trial
       counsel—not to pursue other claims of error, like those commonly raised in posttrial motions.
¶ 65       Although courts have not clearly defined when a pro se ineffective assistance claim “lacks
       merit,” the supreme court, in People v. Johnson, 159 Ill. 2d 97, 126, 636 N.E.2d 485, 498
       (1994), did conclude that the defendant in that case “did not bring to the trial court’s attention a
       colorable claim of ineffective assistance of counsel.” In reaching that conclusion, the supreme


                                                    -9-
       court found that the defendant’s various allegations were conclusory, misleading, and legally
       immaterial. Id. A review of the case law since Johnson was decided reveals that there are
       generally four primary ways a trial court, when conducting a Krankel inquiry, may conclude
       that an ineffective assistance claim “lacks merit” so that the court need not appoint new
       counsel to pursue the defendant’s ineffective assistance claim. Those four primary ways are
       when the court determines that the defendant’s ineffective assistance claim is (1) conclusory,
       (2) misleading, (3) legally immaterial, or (4) pertaining solely to an issue of trial strategy. See,
       e.g., Id.; Moore, 207 Ill. 2d at 78. We address each in turn.

¶ 66                                           a. Conclusory
¶ 67       Following the supreme court’s recent decision in Ayres, it is unclear when a defendant’s
       pro se posttrial claim of ineffective assistance of counsel may be so conclusory that a Krankel
       hearing is not required. Nonetheless, we believe the following rule applies: An allegation is
       conclusory when a defendant is unable to add any additional factual basis to support his bare
       allegation from which a court could infer a basis in support of an ineffective assistance claim.
       People v. Munson, 171 Ill. 2d 158, 201, 662 N.E.2d 1265, 1284 (1996).
¶ 68       For instance, in People v. Towns, 174 Ill. 2d 453, 467, 675 N.E.2d 614, 620-21 (1996), the
       defendant’s allegations were properly deemed conclusory because he claimed his counsel
       should have investigated “relevant facts and witnesses,” but defendant offered no explanation
       as to what or to whom he was referring. Similarly, in Munson, the defendant stated he was
       claiming ineffective assistance of counsel, but, despite the trial court’s making “every effort to
       ascertain the nature and substance of defendant’s ineffectiveness claim,” the defendant
       “provided neither a basis nor facts from which the court could infer a basis in support of such
       claim.” Munson, 171 Ill. 2d at 201.

¶ 69                                           b. Misleading
¶ 70       A claim is misleading—and therefore lacks merit—when the record clearly rebuts or
       contradicts the substance of the allegations, demonstrating that the claim for ineffective
       assistance is unsupported. In Johnson, the defendant claimed his attorneys failed to investigate
       police misconduct, including that he was beaten and that a witness lied under oath. Johnson,
       159 Ill. 2d at 126. However, the record revealed that trial counsel presented significant
       evidence of the alleged police misconduct and, contrary to the defendant’s claims, the witness
       admitted to the very fact defendant claimed he lied about. Id. at 126-28.
¶ 71       A claim may also be misleading when the inquiry at the Krankel hearing reveals that the
       defendant’s assertions are false and do not support a claim of ineffectiveness. For example, a
       defendant may claim to have an exculpatory witness whom his counsel failed to present.
       However, after an inquiry at the Krankel hearing, the court may learn (from defense counsel or
       defendant) that the witness’s testimony was (1) not helpful to the defendant or (2) contrary to
       his claims. See People v. Nitz, 143 Ill. 2d 82, 135, 572 N.E.2d 895, 919 (1991) (court
       determined that witnesses’ testimony was not in accord with defendant’s representations and
       was actually inapposite to his claims).




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¶ 72                                        c. Legally Immaterial
¶ 73       If a claim that is taken as true, either on its face or after inquiry, would still not support a
       finding of ineffective assistance, then it is legally immaterial. In People v. Giles, 261 Ill. App.
       3d 833, 846, 635 N.E.2d 969, 979 (1994), the defendant was convicted of aggravated criminal
       sexual assault and argued that his trial counsel was ineffective for not arguing the victim’s
       hymen was not torn, despite the medical evidence supporting such a finding. The court noted
       that only slight contact with the victim’s vagina was required to support the conviction, and
       thus, the medical evidence had no bearing on counsel’s performance. Id. at 848.

¶ 74                                    d. Matter of Trial Strategy
¶ 75       A claim may be meritless if it pertains solely to a matter of trial strategy. Moore, 207 Ill. 2d
       at 78. A claim that relates to a matter that does not fall within the definition of ineffective
       assistance of counsel as provided in Strickland v. Washington, 466 U.S. 688 (1984), is
       meritless. People v. Banks, 237 Ill. 2d 154, 215-16, 934 N.E.2d 435, 469 (2010). In Banks, for
       example, the supreme court rejected a claim that counsel should have been appointed on
       defendant’s pro se ineffectiveness claims because the claim pertained to trial counsel’s
       conduct during voir dire that is generally not subject to Strickland review. Id.
¶ 76       However, certain claims that may generally be matters of trial strategy could still
       potentially support an ineffective assistance claim. In People v. Peacock, 359 Ill. App. 3d 326,
       339-40, 833 N.E.2d 396, 407 (2005), the appellate court remanded for a Krankel hearing based
       on the defendant’s claims that his counsel failed to call a witness and failed to ask certain
       questions on cross-examination of another witness. The court in Peacock acknowledged these
       matters generally pertain to trial strategy but noted that if counsel’s actions were “objectively
       unreasonable, it can amount to ineffective assistance if the defendant suffered prejudice.” Id. at
       340.
¶ 77       Therefore, when dealing with matters of trial strategy, the trial court at the Krankel hearing
       must determine if the allegations and factual bases therefor could support a claim that trial
       counsel was objectively unreasonable. If the allegations and factual bases could support that
       claim, new counsel should be appointed.

¶ 78                                    5. The Standard of Review
¶ 79       “ ‘The operative concern for the reviewing court is whether the trial court conducted an
       adequate inquiry into the defendant’s pro se allegations of ineffective assistance of counsel.’ ”
       Ayres, 2017 IL 120071, ¶ 13 (quoting Moore, 207 Ill. 2d at 78). “The issue of whether the
       circuit court properly conducted a preliminary Krankel inquiry presents a legal question that
       we review de novo.” Jolly, 2014 IL 117142, ¶ 28.
¶ 80       Some courts, including this one, have remarked that “if the trial court properly conducted
       the entire Krankel inquiry and reached a determination on the merits [of the defendant’s
       ineffective assistance claims], we will reverse only if the trial court’s action was manifestly
       erroneous.” People v. Robinson, 2017 IL App (1st) 161595, ¶ 90, 93 N.E.3d 573; see People v.
       Sims, 2014 IL App (4th) 130568, ¶ 142, 9 N.E.3d 621 (substantially the same). We now
       believe these cases were not correctly decided.
¶ 81       We hold that a trial court commits reversible error when it conducts a Krankel hearing and
       concludes—on the merits—that there was no ineffective assistance, and we note that we are


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       not the first court to so conclude. See People v. Fields, 2013 IL App (2d) 120945, ¶ 41, 997
       N.E.2d 791 (trial court violated the defendant’s right to be represented by counsel by
       converting a Krankel hearing on the defendant’s pro se claim of ineffective assistance into an
       adversarial proceeding); People v. Cabrales, 325 Ill. App. 3d 1, 5-6, 756 N.E.2d 461, 465
       (2001) (trial court erred by proceeding to full hearing on the merits of the defendant’s pro se
       claims instead of conducting a fact-gathering investigation).
¶ 82       We mentioned earlier that a thorough discussion of Krankel hearings might be helpful
       because we have seen too many cases in which trial courts have misunderstood the purpose of
       Krankel and how a Krankel hearing should be conducted (supra ¶ 43). Sometimes the same
       difficulty affects the appellate court.
¶ 83       In People v. Jackson, 2018 IL App (5th) 150274, ¶¶ 107-22, the Fifth District recently
       addressed a defendant’s claim that the trial court failed to conduct a Krankel inquiry regarding
       the defendant’s claims of ineffective assistance of his trial counsel. The Fifth District in
       Jackson did not review the trial court’s handling of the Krankel inquiry (in which the sole
       question is whether the trial court received sufficient information from which to decide
       whether counsel should be appointed to investigate the defendant’s pro se claim of ineffective
       assistance) but instead reviewed the record and concluded on the merits that the defendant did
       not receive ineffective assistance of counsel during his trial. Id. In doing so, the appellate court
       rejected the defendant’s ineffective assistance claim, despite the fact that the defendant did not
       have the assistance of counsel to investigate and argue that claim before the trial court. Id.
       Accordingly, we respectfully disagree with the analysis and conclusion the Fifth District
       reached in Jackson.

¶ 84                                        B. The Facts of This Case
¶ 85       In this case, at the first hearing after remand, the trial court appointed counsel for defendant
       on his pro se motion to reduce sentence. Once the court appointed counsel, no reason existed
       for the court to conduct any further hearings pursuant to Krankel; instead, the case should have
       proceeded based upon whatever action defendant’s new counsel might choose to take
       regarding defendant’s ineffective assistance claims. Further inquiry pursuant to Krankel was
       not appropriate at that point because the sole issue to be decided at a Krankel hearing is
       whether to appoint counsel. As soon as the court decided to appoint counsel, not only was a
       Krankel hearing not called for, but the court’s purportedly conducting one made no sense.
       Indeed, the case should have continued the same way it would have if defendant had hired
       private counsel to assert the same claims.
¶ 86       We also note that the trial court at one point reconsidered its appointment of new counsel,
       apparently believing (incorrectly) that the court was required to conduct a hearing at which
       defendant and his trial counsel could appear and address defendant’s claims of ineffective
       assistance.
¶ 87       Although the vast majority of cases in which a defendant pro se raises a claim of
       ineffective assistance of trial counsel will (and likely should) proceed to a Krankel hearing
       with trial counsel present, doing so is not necessarily required in every case. After a trial court
       reviews a pro se motion or letter alleging ineffective assistance of counsel, the court may
       conclude that the allegations on their face have sufficient merit to justify the appointment of
       counsel. New counsel would then take whatever action counsel might deem appropriate
       regarding the defendant’s claim of ineffective assistance.

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¶ 88        Here, the trial court erred when it conducted the January 2017 hearing by addressing the
       merits of defendant’s ineffective assistance claim without appointing new counsel for
       defendant. The record clearly demonstrates the court, believing it was conducting a Krankel
       hearing, ruled on the merits of defendant’s ineffective assistance claims. Indeed, the trial court
       indicated as much, stating that it would “rule as to whether or not I find that there was
       ineffective assistance in this situation,” as well as the court’s later findings at that hearing that
       “the defendant’s allegations do not amount to ineffective assistance of counsel” and “I’m
       satisfied you were properly represented, *** and there was no ineffective assistance.” The
       court reached the wrong result because it made the wrong inquiry.
¶ 89        Multiple parties suffered prejudice as a result of the trial court’s error. First and foremost,
       defendant was prejudiced because he did not have counsel to help him argue that his
       allegations did in fact rise to the level of ineffective assistance. Defendant thought (indeed, was
       told by the court) that the court was evaluating his claims for potential merit and whether an
       evidentiary hearing should be conducted at a later date. Then the court in fact conducted that
       evidentiary hearing and forced defendant to argue the merits of his motion without his even
       being aware that they were being considered.
¶ 90        Additionally, the State is prejudiced when a trial court evaluates the merits of a defendant’s
       claims of ineffective assistance without the State’s being allowed to comment or argue. The
       supreme court has emphasized that the State is not allowed to have any more than de minimis
       input at a Krankel hearing. Jolly, 2014 IL 117142, ¶ 38. The reason for this unique prohibition
       is simple: no rights are being adjudicated. Id. No rights are being adjudicated because the sole
       matter addressed at a Krankel hearing is whether the court should appoint new counsel for the
       defendant on his claim of ineffective assistance of trial counsel. Id. The State, just like a
       defendant, always suffers the risk of prejudice when a court adjudicates the merits of an issue
       without permitting the State to argue its position.

¶ 91                      C. How a Krankel Hearing Should Proceed on Remand
¶ 92        Given that the trial court in this case misunderstood how to proceed with a Krankel inquiry
       following the earlier remand from this court, and given further that remands to trial court to
       conduct Krankel hearings happen with some regularity, we clarify the proper steps to take.
       (We note that these steps are also the ones a trial court should take in the first instance.)
¶ 93        First, when a case is remanded for a Krankel hearing, the trial court should not
       automatically appoint new counsel for the defendant. In the usual case, the appellate court
       remands for a Krankel hearing because the record is inadequate. Therefore, on remand, the trial
       court should familiarize itself with the defendant’s claims of ineffective assistance and review
       any written submissions, as well as any transcripts of the proceedings if the allegations were
       raised orally. Then, in the usual case, the court should require the attendance of the defendant’s
       trial counsel at the Krankel hearing.
¶ 94        Once the State, defendant, and defendant’s trial counsel are present, the court should
       review the allegations and ask the defendant if he has anything to add, thereby giving the
       defendant the opportunity to clarify or expand upon his previous claims. Then, the court should
       allow defendant’s trial counsel to respond. In evaluating the defendant’s claim, the court may
       ask any questions of defense counsel or defendant the court believes to be helpful. The court
       should not allow the State to respond or participate during the Krankel hearing.


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¶ 95        After the court has engaged in what it believes to be an adequate inquiry into the
        defendant’s claims, it should determine whether new counsel should be appointed to pursue
        the defendant’s claim of ineffective assistance as determined by new counsel.

¶ 96                              D. Comparison to Postconviction Petitions
¶ 97         Although the standards are not identical, in order to illustrate the type of inquiry in which
        trial courts should engage, we believe the evaluation made at Krankel hearings is similar to one
        trial courts routinely make at the first stage of postconviction petitions. Trial courts are familiar
        with the well-established principles for evaluating postconviction petitions at the first stage, so
        courts may find it helpful to think of Krankel hearings in a similar fashion.
¶ 98         Postconviction petitions provide a good basis for comparison because, like Krankel
        inquiries, they are the most common of very few instances when the trial court exercises its
        judgment in a criminal case without input from the State. Additionally, both circumstances
        typically involve a defendant’s pro se claims (indeed, typically ineffective assistance claims),
        and the trial court is asked to evaluate the viability of those claims.
¶ 99         The three stages of postconviction petitions are familiar and well settled. In the first stage,
        the trial court is required to review the petition and determine if it is “frivolous or patently
        without merit,” that is, “the petition has no arguable basis either in law or in fact.” People v.
        Tate, 2012 IL 112214, ¶ 9, 980 N.E.2d 1100. At this first stage, the court should conduct its
        evaluation of the postconviction petition without any input from the State. People v. Turner,
        2012 IL App (2d) 100819, ¶ 18, 972 N.E.2d 1205. In order to survive the first stage, a
        defendant is required to state the “gist of a constitutional claim.” (Internal quotation marks
        omitted.) People v. Hodges, 234 Ill. 2d 1, 9, 912 N.E.2d 1204, 1208 (2009). If the court finds a
        pro se defendant has met this low threshold, it appoints counsel to further evaluate the matter
        and amend the petition if necessary. Tate, 2012 IL 112214, ¶ 10. (We hasten to add that we are
        simply pointing to the postconviction context for its illustrative value and not suggesting that
        the “gist” standard applies in a Krankel context.) The State is then allowed to participate, and
        the matter can proceed to an evidentiary hearing on the merits. Id. (Unlike postconviction
        proceedings, the State cannot move to dismiss a claim alleging ineffective assistance under
        Krankel.)
¶ 100        In this way, Krankel hearings are comparable to first-stage postconviction proceedings,
        except the trial court is permitted to (and in most cases probably should) conduct an inquiry
        into the facts behind a defendant’s claims of ineffective assistance. In determining whether to
        appoint counsel, the court determines whether a defendant has stated a sufficient basis for the
        appointment of counsel. In both instances, trial courts are being asked to weed out “patently
        frivolous” or “spurious” claims. As a result, after a Krankel hearing, the trial court should
        decline to appoint new counsel when the defendant’s claims lack support (that is, after asking a
        defendant to elaborate, the defendant fails to identify facts to support his claims or such facts
        are affirmatively contradicted by the record or legally immaterial) or are solely matters of trial
        strategy (for example, when to introduce a particular piece of evidence or testimony).

¶ 101                                      III. CONCLUSION
¶ 102       Because this appeal is the second time this court has addressed these issues in this case, in
        the interests of judicial economy, we remand with directions to appoint new counsel for


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        defendant, so that the new counsel may take whatever action the new counsel deems
        appropriate regarding defendant’s pro se claims of ineffective assistance of counsel.
¶ 103       For the reasons stated above, we reverse the trial court’s judgment and remand with
        directions.

¶ 104      Reversed and remanded with directions.




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