                                              SIXTH DIVISION
                                              March 24, 2006




No. 1-03-2334

THE PEOPLE OF THE STATE OF ILLINOIS,     )    Appeal from the
                                         )    Circuit Court of
                Plaintiff-Appellee,      )    Cook County
                                         )
                                         )
           v.                            )    No. 01 CR 31619
                                         )
                                         )    The Honorable.
KEITH BARNES,                            )    Catherine M.
                                         )    Haberkorn,
                Defendant-Appellant      )    Judge Presiding




     PRESIDING JUSTICE McNULTY delivered the opinion of the

court:

     After a bench trial, defendant Keith Barnes was convicted of

attempted murder, two counts of aggravated battery with a

firearm,   and two counts of unlawful use of a weapon by a felon,

all resulting from a November 2001 incident in which he was

accused of firing a handgun at a group of five men.   Barnes was

sentenced to 17 years' imprisonment for the attempted murder

conviction, plus concurrent terms of 6 years' imprisonment for

each of the aggravated battery counts and 5 years' imprisonment

for each of the weapons counts.   He appeals, contending that the

identification evidence produced at trial was insufficient to

prove beyond a reasonable doubt that he was the perpetrator of

the crime; that the evidence was insufficient to prove beyond a
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reasonable doubt that he intended to kill; that the 17-year

sentence for the attempted murder count was an improper increase

of his punishment following a motion for resentencing; and that

the trial court improperly failed to consider his oral claims of

ineffective assistance of counsel.      We affirm his convictions and

sentences, and remand for further proceedings on Barnes'

ineffective assistance claim.

                                FACTS

     Joseph Nevels testified that at approximately 1:30 a.m on

November 24, 2001, he was standing with four friends in front of

the multi-unit apartment building where he shared a residence

with his parents and that he heard one of his companions, Brian

Stein, say "[W]atch out.   Look at that dude.    He don't look

right."   Nevels testified that he and his friends had been

standing inside a fence which enclosed the building's entry way,

and that at Stein's words, he turned toward the fence gate and

saw an individual on the outside of the gate, approximately five

feet from him.   The individual was wearing all black, including a

black sweatshirt with a hood covering his head, and a bandanna

covering the portion of his face from the tip of his nose down.

Nevels heard the person say "What's up, folks?" and then saw him

reach into a pocket at his waist and pull out a handgun.     Nevels

tried to close the gate, but was hit in the chest by a gunshot

and fell to the ground.    He heard several more shots and saw the

gunman run away from the scene.   Nevels testified that he had not


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seen the gunman before the incident.

     Antonio Branham testified that he lived with his family in a

different apartment in the same building as Nevels and that he

was one of the five standing outside the building at the time of

the shootings.   He said that his attention had not been directed

toward the street until he heard the words "What's up, folks?"

He turned around upon hearing the words, saw a person pointing a

gun at him from a distance of three to five feet, and was shot in

the shoulder and both legs.   Branham further testified that he

heard between five and nine shots fired in total.   His

description of the gunman's clothing matched that given by

Nevels, and he also described the man as having a scar above his

left eyebrow and a "fat, wide" nose.   Antonio described himself

as 6 feet, 4 inches tall, and said that the gunman was shorter.

     Antonio's brother Guillermo Branham also testified that he

was present at the time of the shooting.   He testified that he

saw the gunman walking toward their group on the other side of

the street and that he observed the gunman's approach from a

distance of approximately 13 feet away to a distance of 4 or 5

feet.   Guillermo's description of the gunman's clothing was

substantially identical to that of Nevels and his brother: dark

clothing, hooded sweatshirt, and a bandanna covering the bottom

portion of his face.   Guillermo testified that despite the

bandanna, he took notice of the gunman's nose, and that it was

"wide and puffy."   He described himself as 6 feet tall, and said


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that the gunman was shorter than himself.      Guillermo also heard

the gunman say, "What's up, folks?" and saw him pull a handgun

from his waist and start firing.       He saw his brother being struck

by the shots and saw Nevels also struck as he tried to close the

gate they stood inside.   Guillermo saw the gunman run away from

the scene.

     Guillermo testified that when police showed him a number of

photographs the following day, he identified Barnes' picture as

that of the gunman.   He said that he had seen Barnes before the

night of the shooting: he had previously seen Barnes coming in

and out of the apartment building where the shooting took place,

and that at the time of one of those sightings, Barnes had named

an elementary school and asked him if he had attended it.

Guillermo said that he had also seen Barnes "a couple of times"

while doing maintenance work in the building where Barnes lived.

 Guillermo said that he had previously noticed Barnes' wide nose.

 Guillermo again identified Barnes as the gunman in a lineup

conducted on the same day he viewed the photo array and

identified Barnes again in court at trial.

     On cross-examination, Guillermo testified that he had not

noticed a scar over Barnes' eye; that he did not identify Barnes

as the gunman at the time of the attack; and that he concluded

that he knew the gunman only after he had helped take his brother

to the hospital.   He further testified that although the gunman's

nostrils were covered by the bandanna, he was able to see the


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portion of his face from the area above the tip of the nose to

the an area just below the top of his forehead.   Guillermo also

said that although the incident occurred at night, some light

from the apartment building entrance brightened the scene.

     Barnes did not present evidence in his defense.    His counsel

argued that the identification testimony lacked reference to

numerous specifics of the gunman's appearance: complexion,

presence or absence of facial hair, age and weight.    Defense

counsel also argued that there was no evidence that any of the

witnesses had described the gunman to police as having a

distinctive nose, and that the police reports did not reflect any

indication that any witness reported knowing the gunman prior to

the shooting.

     The trial court noted that Barnes had "very unique"

features, and specifically referred to the scar identified by

Antonio Branham and the wide nose mentioned by both Branham

brothers.   The court further noted that Guillermo had encountered

Barnes on a number of occasions and that he had an opportunity to

observe Barnes approaching the group from across the street and

firing at them from a distance of 5 feet.   The court then found

that firing a gun at an individual from such a short distance was

evidence of intent to kill that individual, and accordingly found

Barnes guilty of attempted murder, two counts of aggravated

battery with a firearm, and two counts of unlawful use of a

weapon by a felon.


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     At his sentencing hearing, Barnes denied that he had

committed the shootings.    He also suggested that he had not been

satisfied with the defense presented on his behalf:

            "And your honor, I mean to say that I really don't

     feel like I had a fair chance at this, your Honor, due

     to the simple fact that I wasn't able to really prepare

     myself.   You know, I asked for transcripts, your Honor,

     and I never received them.    I asked them to investigate

     witnesses on my behalf, but it never happened.

            Witnesses on my behalf, your Honor, I could have

     proved to you, your Honor, that I was nowhere in sight

     around 1524 West Pratt, your Honor, at 1:00 or 2:00 in

     the morning because I had no business being outside at

     that time, not when I'm on probation, I know."

            The trial court was not persuaded by Barnes'

contentions:

            "One thing you mentioned that your lawyers didn't

     investigate certain witnesses or didn't give you any

     transcripts.   That relationship between your lawyer is

     between you and your lawyer.

            Nothing was ever brought to my attention during

     the court that work was not being done.       This is the

     first time that you're saying that, and your lawyers

     had plenty of time to prepare the case, and nothing was

     ever said previous to that.       So, that has to do with


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     legal strategy, and that was between you and your

     lawyers, and I don't have anything to do with that."

     The court first pronounced Barnes' sentence on the attempted

murder conviction: "At this time, the defendant shall be

sentenced to - - it will be ten years on the Class X felony plus

fifteen years under the statute which says since he was armed

with a firearm.   That'll be twenty-five years in the Illinois

Department of Corrections."    Barnes was also sentenced to six-

year terms for each of the two aggravated battery counts and

five-year terms for each of the unlawful use of weapon counts,

with all sentences to be served concurrently.

     In a motion to reconsider his sentence, Barnes advised the

court that the enhancement provision that added 15 years to an

attempted murder sentence where a firearm was used (720 ILCS 5/8-

4(c)(1)(B) (West 2000)) had been held unconstitutional by our

supreme court.    (People v. Morgan, 203 Ill. 2d 470, 491 (2003).)
 The court granted Barnes' motion to reconsider the 25-year

sentence for the attempt murder conviction, and resentenced him

to a 17-year prison term for that offense.    Barnes' motion for

reconsideration of that sentence was denied, and this appeal

followed.

                              DISCUSSION

             Sufficiency of Identification Evidence

     Barnes first contends that he was not proved guilty of the

charged offenses beyond a reasonable doubt because the


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identification testimony against him was insufficient to allow a

reasonable trier of fact to find him guilty of the crimes. He

correctly notes that the factors to be considered in evaluating

the reliability of an identification are (1) the opportunity of

the witness to view the offender at the time of the crime; (2)

the witness's degree of attention; (3) the accuracy of the

witness's prior description of the offender; (4) the level of

certainty shown by the witness at the identification

confrontation; and (5) the length of time between the crime and

the confrontation (People v. Curtis, 262 Ill. App. 3d 876, 881
(1994)), and contends that the identification here was unreliable

because the gunman wore a hood and a bandanna, covering most of

his face; because the incident happened quickly; because it was

dark; and because Guillermo Branham's identification rested

solely on his characterization of Barnes' nose.

     None of the claimed identification shortcomings render the

testimony against Barnes sufficiently unreliable that his

convictions must be disturbed.   Illinois courts have consistently

rejected challenges to identifications under circumstances

similar to, and even less favorable than, those surrounding the

testimony in the instant case.

     Though the witnesses testified that most of the gunman's

face was covered by a bandanna at the time of the attack, both

Antonio Branham and his brother Guillermo testified that enough

of the attacker's nose was uncovered to allow them to see that it


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was notably wide.   In People v. Zarate, 264 Ill. App. 3d 667

(1994), this court rejected the contention that a perpetrator's

disguise made an eyewitness identification unreliable.      There,

the identification was found to be sufficiently positive and

reliable to support a conviction even though the witness, the

victim of an assault in her home, was able to view her attacker's

face only through eye holes in a bag he wore over his head to

conceal his identity.   264 Ill. App. 3d at 674-75.

     This court has similarly rejected the claim that brevity of

the witness's observation undermines his identification

testimony: in People v. Parks, 50 Ill. App. 3d 929, 930-33
(1977), an encounter as abbreviated as "five to ten seconds" (50

Ill. App. 3d at 930) was held to be sufficient to support a

conviction.   We have also held that testimony based on night

observations illuminated only by artificial light may serve as

proof of identification beyond a reasonable doubt.      People v.

Griffin, 12 Ill. App. 3d 193, 198-200 (1973).

     Barnes makes much of the fact that the identification

testimony of the Branham brothers centered primarily on his nose;

he notes that Guillermo failed to mention a prominent scar above

his eye and that neither brother offered any details about

numerous other physical characteristics of the gunman, such as

weight, age, or complexion.   Our supreme court, however, has held

that omissions in the description offered by a witness do not

render his testimony unreliable.       People v. Slim, 127 Ill. 2d


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302, 309 (1989).    Illinois courts have consistently adhered to

this principle, repeatedly holding that identification testimony

which fails to mention notable physical characteristics of the

defendant may nonetheless prove a defendant's guilt beyond a

reasonable doubt.    People v. Miller, 30 Ill. 2d 110, 113 (1964);

People v. Nims, 156 Ill. App. 3d 115, 121 (1986); People v. Bias,

131 Ill. App. 3d 98, 105 (1985).

     Citing People v. Dowaliby, 221 Ill. App. 3d 788 (1991),

Barnes claims that identification testimony focusing primarily on

his nose is inherently vague and insufficient to support a

finding of guilt beyond a reasonable doubt.    While the Dowaliby
court did find identification testimony focusing on the

appearance of a nose to be "doubtful, vague, unreliable and of no

probative value," (221 Ill. App. 3d at 800) the testimony at

issue in the instant case is readily distinguishable.

     In Dowaliby, the witness whose testimony served as

identification of the defendant stated that he had observed "the

profile of a large nose."    221 Ill. App. 3d at 800.   The witness

did not note any other characteristics of the individual, and did

not identify a photograph of the individual as the person he had

seen, stating only that the defendant's nose structure "looked

similar to the profile nose structure of the person he saw."    221

Ill. App. 3d at 800.    The witness did not identify the defendant

in court as the person he had observed at the crime scene.    221

Ill. App. 3d at 800.


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     It is thus apparent that, in contrast to the instant case,

the witness in Dowaliby failed to make a positive identification

of the defendant.   It is equally apparent that the Dowaliby court

did not suggest that a positive identification may not be made on

the basis of a witness observation of a distinctive nose.    We

therefore conclude that Dowaliby offers no basis for a reversal

of Barnes' conviction.

     We find Barnes' remaining assertion of evidence

insufficiency to be equally unpersuasive: he argues that

Guillermo Branham admitted that he "wasn't really paying

attention" and that his "mind really wasn't focused."   The full

context of Guillermo's comments reveals that he stated that he

was not paying attention to the gunman's eye structure, and that

his recognition of Barnes as the attacker did not occur to him

until he was at the hospital because his mind was not focused on

identifying the shooter while he was attending to his brother and

his friend.

     The testimony of a single credible witness with ample

opportunity to make a positive identification is sufficient to

convict.    People v. Jefferson, 183 Ill. App. 3d 497, 501 (1989).
 The persuasiveness of identification testimony is strengthened

by the witness's prior acquaintance with the accused.   People v.

Milam, 80 Ill. App. 3d 245, 251 (1980).   On review, the verdict

delivered by a court presiding at a bench trial will not be

overturned unless it is so unsatisfactory, improbable or


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implausible as to justify a reasonable doubt as to the

defendant's guilt.    People v. Slim, 127 Ill. 2d 302, 307 (1989).

     Guillermo Branham's identification of Barnes was positive

and consistent in selecting Barnes' picture from the photo array,

in choosing him from a lineup, and in naming Barnes as the gunman

at trial.   The identification was bolstered by the fact that he

had encountered Barnes on multiple occasions prior to the night

of the shooting.     Guillermo's identification was corroborated by

his brother's testimony that the gunman had a scar over his eye

and a wide nose, and the trial court noted that those features

were "unique."   In light of the foregoing, and in light of the

consistent rejection by Illinois courts of the arguments asserted

by Barnes as bases for considering the testimony against him to

be unreliable, we must conclude that the evidence presented was

sufficient to prove beyond a reasonable doubt that Barnes was the

perpetrator of the charged crimes.



                   Sufficiency of Intent Evidence
     Barnes contends that the prosecution failed to prove beyond

a reasonable doubt that he had the intent to kill Joseph Nevels,

and that his conviction for attempt murder must therefore be

reversed.   In support of this contention, Barnes notes that no

evidence was presented to indicate that Barnes knew Nevels, was

aiming at him, or had any intent to kill him.    He concludes that

in the absence of such evidence, the trier of fact could at most


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infer that he acted recklessly, but not that he intended to kill.

 We disagree.

     "'Intent is a state of mind which, if not admitted, can be

established by proof of surrounding circumstances, including the

character of the assault, the use of a deadly weapon, and other

matters from which an intent to kill may be inferred.

[Citations.]    Such intent may be inferred when it has been

demonstrated that the defendant voluntarily and willingly

committed an act, the natural tendency of which is to destroy

another's life.'"    People v. Green, 339 Ill. App. 3d 443, 451
(2003), quoting People v. Winters, 151 Ill. App. 3d 402, 405

(1986).   In Green, this court held that the act of shooting at a

group of police officers was sufficient proof of intent to kill

to support a conviction for attempt murder.    Green, 339 Ill. App.

3d at 452.   Similarly, in People v. Bailey, 265 Ill. App. 3d 262

(1994), this court held that shooting at a group was an act

sufficient to prove the intent necessary to sustain an attempted

murder conviction.    "To sustain a charge of attempted murder, it

is sufficient to discharge a weapon in the direction of another

individual, either with malice or total disregard for human

life."    Bailey, 265 Ill. App. 3d at 273.   Given the fact that

Barnes fired several shots at the victims, the fact that two

separate victims were in fact struck, and the well-established

principle that such conduct is sufficient to support an attempted

murder conviction, we conclude that Barnes' argument must be


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rejected.

             Length of Resentence for Attempted Murder

     Barnes next contends that the trial court, in imposing a 17-

year sentence for the attempted murder charge after discovering

the invalidity of the enhancement provision originally utilized

to impose a 25-year sentence, improperly violated section 5-8-

1(c) of the Unified Code of Corrections (730 ILCS 5/5-8-1(c)

(West 2000)), which provides that a court "may not increase a

sentence once it is imposed."   Since the 17-year term imposed

upon resentencing is less than his original 25-year attempted

murder sentence, Barnes' argument necessarily presumes that the

trial court's recognition of the invalidity of the enhancement

statute left a valid 10-year sentence which could not then be

increased.   We do not agree with this presumption.

     Initially, we note that while the trial court referred to

the attempted murder sentence by reference to its component

parts, 10 years plus a required 15-year enhancement, neither the

language of the statute nor the trial court's ultimate

pronouncement of sentence suggests that the penalty imposed for

attempted murder consisted of distinct, independent prison terms

rather than a single 25-year sentence.

     Barnes notes that in People v. Baker, 341 Ill. App. 3d 1083
(2003), the Appellate Court for the Fourth District held a

sentencing enhancement provision to be constitutionally invalid,

and as a result vacated the enhanced portion of the prison term,


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However, the Fourth District subsequently emphasized that Baker

did not purport to mandate this remedy: "This court did not hold,

as defendant contends, the defendant's sentence in Baker had to

be set at 25 years as a result of subtracting the 15-year

enhancement from the 40 years imposed initially by the trial

court."   People v. Ridley, 345 Ill. App. 3d 1091, 1093 (2004).

The Ridley court affirmed the imposition of a 15-year prison

sentence following the vacation of a 21-year sentence consisting

of a 6-year base sentence plus an invalid 15-year enhancement.

345 Ill. App. 3d at 1093-94.

     In addition, the instant case arises from a factual

background significantly distinct from that outlined in Baker.
Here, the trial court explicitly indicated that it took the

mandatory enhancement provision into account in imposing the

original sentence: "My original sentence was based on the fact

defense counsel at the time never asked to find the sentencing

guidelines unconstitutional so I stated previously that it was

not that I wanted to sentence him to that amount of years.    It

was because in addition to how much I would have to sentence to

the required extra amount of sentencing that is why I chose the

years.    It was not my intention to sentence him to ten years at

the time."   No similar evidence of commingled analysis was noted

by the Baker court. The trial court's acknowledgment in the

instant case of the inclusion of the invalid enhancement

provision in its initial sentencing analysis demonstrates that


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the 25-year term imposed in the case at bar cannot be viewed as

divisible into separate, independent parts.

     Barnes' initial sentence was imposed by the trial court

under an erroneous belief that the enhancement provision declared

unconstitutional in Morgan required a 15-year increase in his

sentence.   This belief was a mistake of law which rendered the

sentence entered on the charge voidable.   People v. Harris, 319

Ill. App. 3d 534, 536 (2001).

     However, our supreme court has held that only valid

sentences may serve as the baseline for assessment of compliance

with prohibitions against increase.   In People v. Garcia, 179
Ill. 2d 55 (1997), the court reviewed a contention that a

sentence imposed after a remand was greater than that originally

entered, in violation of a statutory no-increase provision

similar to that at issue here.   The Garcia court held the

defendant's original sentence to be void and therefore found the

defendant's contentions of violation of the no-increase provision

to be "inapplicable because they are premised on the erroneous

assumption that there is a valid sentence to increase."     179 Ill.

2d at 73.

     Though Illinois courts distinguish the terms "void" and

"voidable" for the purposes of determining the propriety of

collateral attacks (People v. Davis, 156 Ill. 2d 149, 155-56

(1993)), that distinction does not bear upon on the issues raised

by the instant case, since Barnes' original sentence was properly


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vacated upon his motion for resentencing. We conclude that the

supreme court's rejection of invalid sentences as comparison

baselines for no-increase provisions applies with equal force to

both properly vacated voidable sentences and the void sentences

at issue in Garcia and in People v. Arna, 168 Ill. 2d 107, 112-13

(1995).   We accordingly hold that the imposition of a 17-year

prison term on resentencing of the attempted murder charge was

not an impermissible violation of the prohibition against

sentence increases.



                    Ineffective Assistance Claims
     After trial, Barnes advised the court that he did not feel

that he had "a fair chance" at trial; that he had asked his

attorney for transcripts that he did not receive and that his

requests for interviews of witnesses who could have testified

that he was not at the crime scene at the time of the shooting

were not heeded.   As noted previously, the trial court, without

further analysis, responded: "Well, Keith, you've touched upon

several things.    One thing you mentioned that your lawyers didn't

investigate certain witnesses or didn't give you any transcripts.

 That relationship between your lawyer is between you and your

lawyer.   Nothing was ever brought to my attention during the

court that work was not being done.   This is the first time that

you're saying that, and your lawyers had plenty of time to

prepare the case, and nothing was ever said previous to that.


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So, that has to do with legal strategy, and that was between you

and your lawyers, and I don't have anything to do with that."

Barnes contends that the court should have inquired further into

his claims.   We agree.

     In People v. Moore, 207 Ill. 2d 68 (2003), our supreme court

made clear that a defendant's pro se claims of ineffective

assistance of counsel following trial must receive at least some

investigation.   "[W]hen a defendant presents a pro se posttrial

claim of ineffective assistance of counsel, the trial court

should first examine the factual basis of the defendant's claim.

 If the trial court determines that the claim lacks merit or

pertains only to matters of trial strategy, then the court need

not appoint new counsel and may deny the pro se motion.     However,

if the allegations show possible neglect of the case, new counsel

should be appointed."     207 Ill. 2d at 77-78.

     The court continued: "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.    People v. Johnson, 159 Ill. 2d 97, 125
(1994).   During this evaluation, 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."   Moore, 207 Ill. 2d at 78.    Illinois courts have also


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made clear that this claim need not be written to require such

inquiry.    People v. Williams, 224 Ill. App. 3d 517, 524 (1992).

     In the instant case, Barnes claimed that, to no avail, he

had asked to review transcripts and had advised his counsel of

witnesses who could have proved that he was not at the scene of

the crime.   Without inquiry into the substance of these

allegations, the trial court presumed them to be matters of trial

strategy and summarily rejected them.      We do not believe that

this brief conclusory review satisfies the requirement for

factual assessment described by the Moore court.      We believe that

before dismissing Barnes' claims, the court must conduct some

inquiry into their specifics: what transcripts Barnes requested

but did not receive, and the identities of the claimed alibi

witnesses, the substance of their proposed testimony, and the

extent to which Barnes' counsel was made aware of and acted upon

any knowledge of their existence.      Accordingly, we remand the

cause for a preliminary inquiry into Barnes' ineffective

assistance claims.

                              CONCLUSION

     For the foregoing reasons, we affirm the convictions and

sentences imposed by the circuit court of Cook County.      We remand

the cause to that court for further inquiry into the defendant's

claims of ineffective assistance of counsel.

     Affirmed and remanded.

     FITZGERALD-SMITH and O'MALLEY, JJ., concur.


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