                            2017 IL App (2d) 121156-C
                                  No. 2-12-1156
                           Opinion filed August 15, 2017
______________________________________________________________________________

                                              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-2986
                                       )
MARK A. DOWNS,                         ) Honorable
                                       ) Timothy Q. Sheldon,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE BIRKETT delivered the judgment of the court, with opinion.
       Justices Hutchinson and Spence concurred in the judgment and opinion.

                                            OPINION

¶1     This case returns to us following a supervisory order of our supreme court directing us to

vacate our most recent decision and to reconsider our analysis in light of People v. Cherry, 2016

IL 118728. Procedurally, then, we are in the position of considering the case on remand from the

supreme court following its reversal of our decision in the second appeal of defendant, Mark A.

Downs. In the first appeal, People v. Downs, 2012 IL App (2d) 100755-U (Downs I), defendant

appealed the trial court’s dismissal, during the first stage of a Krankel hearing (see People v.

Krankel, 102 Ill. 2d 181 (1984)), of his posttrial claims of ineffective assistance of trial counsel.

We reversed the dismissal, because the trial court erroneously converted the Krankel preliminary

inquiry into an adversarial hearing on the merits, in which the State actively participated and
2017 IL App (2d) 121156-C


defendant was required to represent himself without benefit of counsel. Before the flawed

Krankel hearing, the trial court noted that some of defendant’s allegations raised issues of

possible neglect by his trial counsel, but, after the hearing, it dismissed all of defendant’s claims.

We remanded the cause, directing the trial court to appoint counsel and to continue the case from

that point. Downs I, 2012 IL App (2d) 100755-U, ¶¶ 50-51.

¶2     On remand, the trial court appointed counsel (Krankel counsel) and held a Krankel

hearing. Krankel counsel adopted only a general claim of ineffective assistance of trial counsel

and declined to adopt any of defendant’s specific allegations. The trial court again dismissed

defendant’s allegations, and defendant again appealed.

¶3     In the second appeal, defendant contended that Krankel counsel was ineffective in

conducting the second Krankel hearing. Defendant also, for the first time in the case, challenged

the trial court’s definition of proof beyond a reasonable doubt in response to the jury’s question

to the court: “What is your definition of reasonable doubt, 80%, 70%, 60%?” We addressed the

reasonable-doubt issue and laid the Krankel issue to the side. People v. Downs, 2014 IL App

(2d) 121156, ¶ 15 (Downs II). In Downs II, we held that the trial court erred in responding to the

jury’s question and that there was a reasonable likelihood that defendant’s conviction did not

satisfy the beyond-a-reasonable-doubt standard. Id. ¶ 31. The State appealed, and our supreme

court reversed, holding that the trial court appropriately responded to the jury’s question and

reiterating that a court should refrain from attempting to define reasonable doubt. People v.

Downs, 2015 IL 117934, ¶¶ 24, 32 (Downs III). The supreme court then remanded the cause to

this court to allow us to consider the Krankel issue. Id. ¶ 34.

¶4     Upon that remand, we considered the conduct of Krankel counsel during the second

Krankel hearing. People v. Downs, 2016 IL App (2d) 121156-B (Downs IV). In brief, we

accepted defendant’s contention that Krankel counsel had abandoned his role as counsel and

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therefore was ineffective. See Strickland v. Washington, 466 U.S. 668, 688, 694 (1984) (counsel

is ineffective if (1) his or her performance fell below an objective standard of reasonableness;

and (2) prejudice resulted, meaning that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different). In Downs IV, we

concluded that, because Krankel counsel abandoned his role as counsel, prejudice could be

presumed.    See United States v. Cronic, 466 U.S. 648, 656-57 (1984) (prejudice may be

presumed in limited circumstances, such as where counsel effectively provides no

representation). The State appealed this ruling and, on November 23, 2016, our supreme court

entered the following order:

               “In the exercise of this Court’s supervisory authority, the Appellate Court, Second

       District, is directed to vacate its judgment in [Downs IV]. The appellate court is directed

       to consider the effect of this Court’s opinion in [Cherry, 2016 IL 118728], on the issue of

       whether Krankel counsel’s performance was constitutionally adequate under Strickland,

       and determine if a different result is warranted.” People v. Downs, No. 121100 (Ill. Nov.

       23, 2016) (supervisory order).

¶5     Accordingly, pursuant to our supreme court’s supervisory order, we vacate our judgment

in Downs IV, 2016 IL App (2d) 121156-B, and return to the procedural position following

Downs III’s reversal and remand directing us to consider defendant’s claim of ineffective

assistance of Krankel counsel; this time, however, we have the benefit of our supreme court’s

decision in Cherry.

¶6     In this appeal, we will consider defendant’s challenge to the conduct of Krankel counsel

at the second Krankel hearing. Defendant argues that Krankel counsel was ineffective because

he abdicated his role to represent defendant when he abandoned defendant’s specific claims of

ineffective assistance of trial counsel. We reverse and remand the cause.

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¶7                                      I. BACKGROUND

¶8     In Downs I, we provided a full account of the events underlying the case. In Downs II,

we summarized those events. In light of both of these factual summaries, we need not reprise the

substantive facts of the offense; instead, we will provide an outline of the evidence as necessary

and focus on the procedures now at issue.

¶9     In April 2009, defendant was convicted of the first-degree murder (720 ILCS 5/9-1(a)(1)

(West 1996)) of six-year-old Nico Contreras. Early in the morning of November 10, 1996, Nico

was shot while he slept. The intended target was Robert Saltijeral, Nico’s uncle, who was a

member of the Latin Home Boys gang.           The shooter was Ruben Davila, accompanied by

defendant and Elias Diaz, who were members of the Almighty Ambrose gang. A week before

Nico’s death, Davila’s car had been shot up by Latin Home Boys gang members; Davila and

defendant were tasked by the Ambrose gang to shoot Saltijeral to pay back the Latin Home Boys

for shooting at Davila. Davila balked and, according to Davila’s testimony, defendant shot at the

house, ultimately killing Nico.

¶ 10   Davila and Alejandro Solis testified at defendant’s trial. Davila received an incredibly

lenient plea deal to testify against defendant. Davila admitted to the murder of Jose Yepiz,

which occurred a few weeks after Nico’s murder, along with a number of other shootings.

Davila was charged only with aggravated discharge of a firearm in the Yepiz murder and

received a recommendation to be placed in a boot camp program or, if he failed to satisfactorily

complete the program, to receive an eight-year sentence. Additionally, Davila received nearly

$39,000, paid to him or paid on his behalf for expenses and to support his family in Mexico.

¶ 11   Solis denied that he received a quid pro quo deal in exchange for his testimony; rather he

testified that he cooperated because he believed that it was the right thing to do and it cleared his

conscience. Still, even in the absence of an explicit deal, a 2½-year term of imprisonment was

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vacated and Solis was resentenced to a 30-month term of probation instead. Solis also received

$5,000 to pay a child support arrearage allowing his release from incarceration, and he was paid

$3,200 for working as an informant, some of which was paid for information relating to Nico’s

murder.

¶ 12   Based on Davila’s and Solis’s descriptions of Nico’s murder, defendant was convicted of

the murder. 1 Following the verdict, but before the sentencing, defendant filed two pro se

motions alleging that his trial counsel had provided ineffective assistance. Defendant’s second

motion incorporated all of the allegations from the first motion and added more allegations.

Defendant’s second motion was 60 pages in length and contained 34 allegations. On July 31,

2009, pursuant to Krankel, the trial court appointed Krankel counsel, but it had not yet held a

preliminary inquiry into the factual bases of defendant’s allegations. On October 27, 2009,

Krankel counsel filed a second amended motion on defendant’s behalf, adopting five of

defendant’s pro se allegations. On November 25, 2009, defendant filed a third pro se motion,

alleging 13 additional claims of ineffective assistance.

¶ 13   Among the five claims that Krankel counsel adopted were two claims pertinent here: (1)

trial counsel ignored or refused defendant’s request to choose a bench trial; and (2) trial counsel

failed to sufficiently investigate and present defendant’s alibi defense. In submitting defendant’s

second amended motion alleging ineffectiveness of trial counsel, Krankel counsel stated with


       1
           During the jury’s deliberations, it first requested the transcripts of four witnesses’

testimony; it later asked the trial court how it defined reasonable doubt: “80%[,] 70%[, or]

60%?” The trial court responded to the reasonable-doubt question, but none of the transcripts

had been provided before the jury reached its verdict. Downs III resolved the issue arising from

the reasonable-doubt question, and we note these circumstances for completeness.


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respect to the bench-trial claim:

               “Counsel adopts in part and amends Defendant’s #11, to wit: ‘On first and second

       day of trial defendant asked (trial) counsel to dismiss the Jury and instead continue with a

       Bench Trial, but counsel ignored defendant.’ Defendant acknowledges that once the trial

       had begun the decision to waive defendant’s jury right reverts to the discretion of the

       court (People v. Zemblidge, 104 Ill. App. 3d 654 *** (1982)), however, trial counsel

       never brought Defendant’s request to the attention of the court. Defendant alleges that

       trial counsel’s failure to allow defendant’s request to be considered by the Court not only

       constitutes error under Strickland’s first prong, but also establishes prejudice to

       Defendant’s cause so severe that under Strickland’s second prong that but for counsel’s

       unprofessional error, the result of the proceeding would have been different.”

On the alibi issue, Krankel counsel stated:

               “Counsel adopts in part and amends Defendant’s #4, to wit: Patricia Serrano

       [(defendant’s sister)] was not called to testify to an alibi defense asserted to trial counsel

       by Defendant. Defendant alleges that Ms. Serrano’s testimony would have eviscerated

       the State’s evidence. Trial counsel’s failure to call Ms. Serrano to testify not only

       constitutes error under Strickland’s first prong, but also establishes prejudice to

       Defendant’s cause so severe that under Strickland’s second prong that but for counsel’s

       unprofessional errors, the result of the proceeding would have been different. A copy of

       Ms. Serrano’s sworn, notarized statement labeled affidavit filed [sic] stamped September

       8 is attached as Exhibit B-1 thru [sic] B-3.”

¶ 14   As noted, counsel adopted three other of defendant’s pro se allegations of ineffective

assistance of trial counsel. Specifically, counsel adopted: (1) the allegation that trial counsel did

not allow defendant to see certain pages of discovery and any pages of supplemental discovery;

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(2) the allegation that trial counsel made defendant sign stipulations without allowing defendant

the opportunity to read and assent to the stipulations; and (3) the catch-all allegation, without

describing any specific instances, that trial counsel’s performance was deficient. Neither the

discovery nor the stipulation issue has been raised in this appeal.

¶ 15   At the hearing on Krankel counsel’s second amended motion, the trial court, on its own

initiative and purportedly based on a recent Rule 23 order in another case, reconsidered the

procedure it was going to follow. The trial court believed that, in conducting the preliminary

inquiry into the factual bases of defendant’s allegations, it was required to first allow defendant

to discuss his allegations, without legal representation. The trial court thus rescinded Krankel

counsel’s appointment and ordered defendant to present his pro se allegations. In the procedure

that followed, defendant would first read and elaborate on an allegation, trial counsel was invited

to comment and argue against defendant’s allegation, the State was invited to offer its argument

in support of trial counsel and against defendant’s allegation, and defendant was given an

opportunity to have the last word in support of his allegation. In this fashion, the trial court thus

converted the preliminary inquiry into an adversarial hearing on the merits of each allegation,

during which defendant was not allowed to have legal representation.

¶ 16   In discussing the bench-trial allegation, defendant averred that, on the first and second

days of the jury trial, defendant informed trial counsel that he wanted to dismiss the jury and

proceed with a bench trial for the balance of the proceedings. Defendant asserted that trial

counsel completely ignored him and that the jury trial proceeded to completion notwithstanding

defendant’s expressed wishes.      The trial court sought trial counsel’s commentary on the

allegation. Trial counsel explained that he acknowledged defendant’s requests to convert the

jury trial into a bench trial and then proceeded to talk defendant out of his desire on each day.

Trial counsel noted that Diaz had been convicted by the same trial court at a bench trial and that

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defendant’s jury trial involved essentially the same evidence as that presented during Diaz’s

bench trial. Trial counsel believed that it was extremely likely that, based on the same evidence,

the trial court would return a guilty finding if the proceedings were converted into a bench trial.

Trial counsel explained this to defendant and defendant seemed to acquiesce to this reasoning.

Trial counsel noted that he believed that, had he not tried to talk defendant out of converting the

proceedings into a bench trial, he would have been ineffective. Trial counsel also explained that

defendant was never “insistent” about converting the proceedings into a bench trial; for his part,

defendant stated that he was “almost 100 percent certain” that he wanted a bench trial. The trial

court specifically dismissed this allegation, holding:

       “defendant has argued that it should have been a bench trial; and his attorney countered

       by saying the Court tried Elias Diaz at bench trial and found Elias Diaz guilty on a bench

       trial. Defense trial strategy was sound in that this Court had already heard that evidence

       regarding Elias Diaz and found the evidence credible and believable and relevant and

       found Elias Diaz guilty.

               It would have been bad trial strategy to go and retry [defendant] in front of this

       Court in that this Court had already found Elias Diaz guilty. That is trial strategy. The

       Court agrees with that as sound trial strategy.”

¶ 17   Regarding the alibi allegation, defendant claimed that he was at work at the time of the

murder. According to defendant, his sister (Patricia Serrano) and his brother (Chris Downs)

were willing to testify in support of defendant’s alibi. Patricia had averred that both defendant

and Chris were living with her on the date of the murder. She recalled driving them to work at

Borg-Warner in West Chicago during the holiday season, where both brothers were working in

temporary seasonal positions. She further averred that the brothers’ shifts began at 6 p.m. and

ended at 6 a.m. and that their usual workdays coincided with the date of the murder. In addition,

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she particularly remembered the date of the murder, because on November 11, the day following

the murder, she and her brothers traveled to Iowa and spent the ensuing week there. She also

averred that trial counsel did not investigate her alibi information. Trial counsel explained that

he contacted Borg-Warner looking for employment records from the time around the date of the

murder. Trial counsel explained that he spoke to two different lawyers at Borg-Warner, which

he believed to be a benefit because the two different people would approach the issue differently

and possibly turn up the information he was seeking. However, trial counsel consistently learned

that records for defendant were not available, because the company simply did not keep records

for temporary employees for such a length of time. Trial counsel also stated that no alibi had

been developed contemporaneously with the offense and he believed that, as a matter of strategy,

an alibi developed 10 years later would appear to be fabricated and would harm defendant’s case.

The State chimed in, noting that, during the initial murder investigation, defendant was

questioned and did not raise a work alibi; instead, defendant admitted that he was with Davila at

the time around the offense. The trial court ruled that this was a matter of trial strategy, stating

that “going forward on a different type of defense, an alibi, would have been damaging” to

defendant’s defense.

¶ 18   Defendant also specifically challenged trial counsel’s failure to call Chris in support of

his alibi defense. Trial counsel commented that Chris had provided a number of different

versions of his proposed trial testimony. As a result of the inconsistencies, trial counsel believed

that Chris would not be a credible witness. Additionally, trial counsel noted that Chris had never

provided any information related to defendant’s work alibi.         The State added that Chris’s

testimony at the Diaz trial locked him into a version that did not include defendant’s work alibi

and would have controverted the statements in Patricia’s affidavit. The trial court held that the

failure to call Chris to testify was a matter of trial strategy, due to the multiple versions of his

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proposed testimony he provided to trial counsel.

¶ 19    Defendant specifically challenged trial counsel’s investigation of the evidence Patricia

would have provided, as well as his decision not to call her as a witness during the trial. Trial

counsel indicated that he had several discussions with Patricia, but he believed that, because in

2007 she could not provide objective evidence that she and defendant visited Iowa beginning

November 11, 1996, her testimony would not have been sufficient to solidly establish

defendant’s alibi. The State agreed with trial counsel’s assessment. The trial court held that

Patricia would have been an uncertain witness and that the decision whether to call her was a

matter of trial strategy.

¶ 20    We also note that Krankel counsel did not adopt defendant’s allegation about Juan

“Baby” Acevedo. Defendant alleged that Evangelina Hernandez told police that “Baby” had told

her that “Too Tall” (Davila) had been the only person whom Baby observed running from the

scene of the shooting. Defendant stated that he provided trial counsel with Acevedo’s identity

and nickname but that trial counsel did not investigate or subpoena Acevedo for trial testimony.

Trial counsel explained that Hernandez’s information was only hearsay and that Hernandez

could not provide him with Baby’s identity; additionally, she appeared to disavow her statement

to police about him. Trial counsel did not address defendant’s allegation about giving him

Baby’s identity. The State noted that a police report characterized Hernandez’s statement as a

rumor she had heard; further, the State indicated that Hernandez was unable to identify Baby as

Acevedo. The trial court held that the information about Acevedo “was only rumors. There was

no substantial testimony that could be elicited. Ms. Hernandez did not remember any person by

the name of ‘Baby’, and that was a dead end; and it was not ineffective assistance of counsel not

to go any further on that.”

¶ 21    Following its newly adopted procedure, the trial court individually addressed each of

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defendant’s claims, determining that there was no basis to believe that trial counsel had provided

ineffective assistance. The trial court then ruled that there was no basis to continue the Krankel

inquiry and to appoint counsel to represent defendant on any of his claims. Effectively, the trial

court dismissed defendant’s claims.

¶ 22   Defendant appealed, and we determined that the trial court improperly allowed the State

to actively participate in arguing against defendant’s allegations of ineffective assistance, thereby

effectively converting what should have been the preliminary Krankel inquiry into an adversarial

hearing on the merits of defendant’s allegations. See generally Downs I, 2012 IL App (2d)

100755-U. Thus, we remanded the cause and directed the trial court to appoint counsel to

represent defendant on his allegations. Id. ¶ 51 (“Accordingly, on remand, the trial court is to

return to its initial position, namely, the appointment of a new attorney to represent defendant on

his claims of ineffective assistance, and allow that attorney to adopt and flesh out any of

defendant’s contentions that he or she believes to be indicative of potential neglect, much as the

new attorney had already done before the trial court rescinded the appointment.”). In providing

this direction, we expected that, upon remand, Krankel counsel would resubmit the second

amended motion and litigate on behalf of defendant the potentially meritorious matters that

counsel had already identified. Our expectation, unfortunately, was not met. Finally, in Downs

I, we did not consider the merits of defendant’s allegations; instead we instructed the court to

proceed from the point at which Krankel counsel was appointed and to allow counsel to conduct

his or her own investigation of defendant’s allegations. Id. ¶ 52.

¶ 23   On remand, the trial court reappointed the same Krankel counsel that it had initially

appointed.   On October 3, 2012, Krankel counsel filed a third amended motion, this time

declining to adopt four of the five allegations that he had previously adopted. As relevant here,

counsel expressly declined to adopt the bench-trial claim and the alibi claim. Explaining his

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rejection of the bench-trial claim, Krankel counsel stated:

               “Counsel declines to adopt Defendant’s #11. Defendant’s allegation that ‘On first

       and second day of trial defendant asked (trial) counsel to dismiss the jury and instead

       continue with a Bench Trial, but counsel ignored defendant’ was answered by Trial

       Counsel’s response during the October 28, 2009, hearing. It is clear to Krankel counsel

       from the colloquy found in the October 28th transcript (Exhibit B, page 53 line 18 thru

       [sic] Page 56, line 23) that Defendant’s concern was not ignored by trial counsel. Trial

       Counsel recalls clearly that all discussions with Defendant concerning the matter were

       resolved with an agreement that waiving jury ‘would be a really bad idea.’ Defendant

       acknowledges that once the trial had begun the decision to waive defendant’s jury trial

       right reverts to the discretion of the court (People v. Zemblidge, 104 Ill. App. 3d 654 ***

       (1982)), however, in this case the colloquy reveals that while there was a vigorous

       discussion concerning the merit of asking the court to dismiss the jury, there is no record

       nor remembrance by any of the parties involved that the issue was brought to the

       attention of the Court. The October 28th colloquy establishes that discussion was held

       between Defendant and Trial Counsel on several occasions, but there is no clear

       indication that defendant was in such disagreement with his counsel that he insisted that

       the issue be brought to the attention of the court and the record does not reveal any

       independent effort by Defendant to do so. Therefore, absent the issue being brought to

       the attention of the Court for consideration under Zemblidge, and no establishment of

       counsel’s failure to address Defendant’s concerns, nothing is offered here that indicates

       anything more than a disagreement with counsel’s strategy and tactics in conducting the

       trial thus failing to establish error under Strickland’s first prong.”

¶ 24   On his rejection of the alibi claim, Krankel counsel stated:

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               “Counsel declines to adopt Defendant’s #4 and offer Patricia Serrano’s sworn and

       notarized statement file stamped September 8, 2009, attached as Exhibit F-1 thru [sic] F-

       3. Trial counsel’s responses offered at the hearing on October 28, 2009, inform that he

       conducted multiple conversations with Ms. Serrano prior to Defendant’s trial and at no

       time did she offer counsel the basis for an alibi defense that could be confirmed. While

       the Patricia Serrano affidavit signed and dated August 20, 2009, and filed [sic] stamped

       September 8, 2009, may have substance in other venues, nothing is offered by Defendant

       via the affidavit that a confirmable alibi was asserted to or available to trial counsel prior

       to the time of trial. The burden falls upon the defendant to show why trial counsel’s

       decision was not sound trial strategy. His decision to not pursue defendant’s alibi claim

       through Patricia Serrano’s potential testimony clearly falls into the arena of trial strategy.

       Defendant offers nothing here that indicates anything more than a disagreement with

       counsel’s strategy and tactics in conducting the trial thus failing to establish error under

       Strickland’s first prong.”

¶ 25   Krankel counsel also “decline[d] to adopt” defendant’s allegations concerning discovery

and the coerced, unreviewed stipulations. However, Krankel counsel reluctantly incorporated

defendant’s catch-all allegation of ineffectiveness into the third amended motion:

               “[Krankel] Counsel is disposed to decline to adopt Defendant’s #32 as

       Defendant’s assertion of overall deficient performance by trial counsel is unsupported by

       specific examples. The burden falls upon the defendant to show why trial counsel’s

       actions were not a product of sound trial strategy or tactic [sic]. Defendant offers nothing

       here that indicates anything more than a disagreement with [trial] counsel’s strategy and

       tactics in conducting the trial and a generalized expression of prejudice.          Thus, in

       counsel’s mind Defendant fails to establish error under Strickland’s first prong.

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       HOWEVER, in this instance, the best judgment of trial counsel’s overall performance

       lies with the Court which had the ability to observe [trial] counsel throughout the trial.

       Therefore, ‘Krankel counsel’ adopts in part defendant’s allegation #32 which states in

       relevant part: ‘In the adversarial process, counsel made errors so serious that counsel was

       not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.

       Counsel’s deficient performance prejudiced the defense.’ ”

¶ 26    Thus, in the third amended motion, Krankel counsel raised only a general charge of

ineffective assistance of trial counsel, and this claim did not allege any specific acts that

constituted neglect or deficient representation. Likewise, the claim did not allege any specific

prejudice accruing to defendant.

¶ 27   Also in the third amended motion, Krankel counsel explained the procedure he employed

in carrying out his assignment. He first briefly outlined what he believed the Krankel procedure

to be, purportedly relying on Downs I. According to Krankel counsel, the entire Krankel

procedure is a three-step process: (1) the trial court reviews the defendant’s pro se allegations of

ineffectiveness of trial counsel, during which review Krankel counsel need not be appointed and

the trial court may discuss the allegations with the defendant and his or her trial counsel; (2) if,

after the initial review, the trial court determines that any of the allegations presents the gist of a

concern that trial counsel neglected the defendant’s case, a new attorney may be appointed as

Krankel counsel “to investigate and represent [the] Defendant’s claim(s)”; and (3) once Krankel

counsel has completed his or her investigation, he or she presents the results to the trial court,

and then: (a) if Krankel counsel has determined that any of the allegations is potentially

meritorious, “a hearing will be scheduled to allow [Krankel] counsel to serve as [the]

Defendant’s Adversary [sic, presumably Krankel counsel meant “Advocate” or “Attorney”]”; or

(b) “If no basis for pursuit of [the] Defendant’s claim(s) is found, [Krankel] counsel should

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advise [the] court of his/her findings in a form sufficient to allow the Court to issue a ruling on

[the] Defendant’s allegations.”

¶ 28   Krankel counsel also averred that, after being reappointed to represent defendant, he

modeled his investigation into defendant’s pro se allegations of ineffectiveness on the Post-

Conviction Hearing Act (725 ILCS 122-1 et seq. (West 2012)) and Illinois Supreme Court Rule

651 (eff. Apr. 26, 2012). In the third amended motion, Krankel counsel averred that he: “(1)

consulted sufficiently with Defendant to ascertain his allegations of ineffectiveness, (2) has

reviewed and considered Defendant’s written filings, (3) has examined the trial transcript, and

(4) reviewed the transcripts of the hearings held on October 28, 2009, November 25, 2009, and

December 28, 2009.” The hearings held in October, November, and December 2009 constituted

the flawed Krankel hearing that was the subject of Downs I. Krankel counsel placed a clear

emphasis on the information derived from the transcripts of that hearing:

       “[T]he information provided by all participants during the hearings became an invaluable

       resource for this counsel’s investigation in preparing the instant motion. Although not

       sworn, the statements made were offered in open court and thus Krankel counsel found

       them to be reliable with respect to determinations made in the context of this motion.”

¶ 29   At an October 19, 2012, hearing before the trial court, defendant contradicted Krankel

counsel’s representations:

               “[Defendant]: On page three of [Krankel counsel’s] motion, he claims counsel has

       consulted sufficient[ly] with the defendant to ascertain allegations of ineffectiveness.

       Counsel has not consulted with me about a single allegation before filing his motion on

       October 3rd.

                                              ***

               THE COURT: You don’t think that [Krankel counsel] has conferred with you

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      long enough?

             [Defendant]: No, he hasn’t spoken to me—I have tried speaking to him already,

      but he hasn’t spoken to me about a single allegation that I have been trying to file. I

      asked him to get some affidavits that were unsworn to be sworn, and he hasn’t done none

      [sic] of that for me. He hasn’t interviewed anybody, any of my alibi witnesses.

             THE COURT: What do you wish for me to do?

             [Defendant]: Well, after a very brief discussion here with this Court on September

      14th, I [told] [Krankel counsel] that I wanted to make sure all my issues with trial counsel

      representation were heard. I informed him that I had other issues that I wanted to be

      addressed. I told him we need to get the unsworn affidavits notarized or sworn to.

      [Krankel counsel] told me he would be willing to include any issues I wished in my

      amended motion.

             [Krankel counsel] sought a continuance under the pretense that he was going to

      review the transcripts and contact witnesses I believe should have been called to testify at

      my trial. The continuance was granted, and the case was continued to October 4th.

             When it came to court on October 4th, [Krankel counsel] completely blindsided

      me with this motion, and today we are here to argue it.               [Krankel counsel’s]

      representation this far amounts to no representation at all.

             Originally in 2009 [Krankel counsel] adopted five of my issues. Now [Krankel

      counsel] seems to adopt only one issue, paragraph 33. I don’t see any specifics on

      [Krankel counsel’s] part. The language he adopts is real general.

             To my knowledge, [Krankel counsel] has not contacted any of the witnesses. He

      has not visited me to discuss my case in length. Further, throughout his motion, he states

      I failed to sustain my burden. The last time I checked, the purpose of an advocate was to

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      aid the defendant in meeting his burden, something [Krankel counsel] has not attempted

      to do.

                                               ***

               THE COURT: [(speaking directly to Krankel counsel)] Do you think that I should

      continue this case so you can talk to [defendant] to see if there should be more

      conversation, more review, and more allegations?

               [Krankel counsel]: No, Your Honor. I believe that when I make the statement that

      I have consulted with him sufficiently, that means that I have reviewed all of the

      allegations; and I have done it twice now. I did it once in 2009.

               To be honest and fair about this case, I went back through all of the allegations

      that he raised, both the original filing and the supplementary filing, which you approved

      sometime later on just before we went into that first hearing, and you rescinded my

      appointment the first time.

               THE COURT: That was because of People v. Paul Gilmore. I had you on the

      case. I got the decision that Gilmore says—the Gilmore panel sent Gilmore back because

      there was a lawyer, and they said he wasn’t supposed to have a lawyer. So I took you out

      of the case, and then the Downs [I] panel says where is his lawyer? I am going to listen

      to [the State], too. You go ahead and tell me.

               [Krankel counsel]: As I explained in the first filed memo—I didn’t include it in

      the second—basically what I did was I adopted the procedure—since you appointed me,

      that’s clear in Krankel, the progeny in Krankel [sic], that appointing a lawyer to—it says

      to investigate and present to The Court and represent the defendant.

               As an officer of the court, I have an obligation not to bring forth allegations that

      don’t make sense, that don’t make sense and don’t meet standards. Especially in this

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2017 IL App (2d) 121156-C


      case we are talking about Strickland standards, the first prong of Strickland, and it’s well

      settled that a difference between a client and his trial attorney over tactics and strategies

      is not sufficient to bring that forward as an allegation of ineffective assistance.

                I adopted the procedure. Although it’s not required by any Krankel progeny or

      Krankel itself, I adopted the procedure that we normally [adopt] at a post conviction

      hearing, that sort of process. It doesn’t specify how much contact I have to have with a

      client.

                With the amount of material, as The Court well knows and I know the State well

      knows, that he presented to begin with, all the writings, and in addition—in addition I had

      the full transcript of all three of the hearings in October, November, and December of

      2009, and to me that was an incredibly specific and detailed investigative tool, and there

      is nothing in those transcripts, especially on the four that I declined to proceed with this

      time that I had not [sic] adopted the first time.

                There is nothing that I found in those transcripts during that hearing—these were

      open court statements. He had a chance to respond. So I considered his responses, as

      well as the responses of trial counsel. None of those were determinative in terms of what

      I presented here in this third amended motion. I felt like I have examined all of these

      allegations, and what I am bringing forward I believe is the proper way to proceed.

                [Defendant] in our conversations has some issues that may have some substantive

      weight, but those are considerations for an appeal, not for a Krankel hearing, not for an

      ongoing motion to determine whether or not the trial counsel was ineffective or not,

      because all of these relate almost entirely to disagreements between him and trial counsel,

      and I believe that with the transcripts of those hearings that I have enough information to

      present to [the] court the motion as it is right now.”

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¶ 30   The trial court then elicited argument about whether to allow defendant to once again

represent himself during the Krankel hearing on the third amended motion. Apparently, the trial

court took defendant’s statement that Krankel counsel had not spoken with him about filing the

third amended motion as another complaint that he had received ineffective assistance, this time

from Krankel counsel. With this understanding, the trial court ruled:

               “I find from what [Krankel counsel] has said that he has investigated. He has

       done extensive investigation. He has had what most lawyers don’t have. He has the

       benefit of being able to review the entire transcript of when all these issues were

       presented once before. He has got the benefit of reviewing those allegations, reviewing

       the testimony, and to investigate to see if there is any merit.

               I think that he has done a fine job in that regard. He got material that would not

       be available normally on a hearing of this nature. I have the utmost confidence in his

       ability. He is provided to you at tax payers’ expense outside the budget of the Kane

       County Public Defender’s Office.

               So I will proceed today finding that he has done his investigation.”

¶ 31   The foregoing colloquy raised the issue of whether, before filing the third amended

motion, Krankel counsel actually consulted with defendant about his pro se allegations of

ineffective assistance of trial counsel. When asked to elaborate about the motion’s statement that

he had consulted with defendant, Krankel counsel retrenched and admitted that, rather than

speaking with defendant, he reviewed the available transcripts in investigating defendant’s pro se

allegations.

¶ 32     The trial court then had Krankel counsel and the State argue the third amended motion.

The trial court held that the motion did not support any claim of ineffective assistance of trial

counsel, because it did not allege either specific acts of deficient performance or specific

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examples of prejudice. The motion was denied.

¶ 33   Defendant appealed, and we decided the appeal solely on the jury-question issue. Downs

II, 2014 IL App (2d) 121156, ¶ 42. Our supreme court reversed our decision on the jury-

question issue and remanded the cause to this court, ordering us to consider defendant’s Krankel

issue. Downs III, 2015 IL 117934, ¶ 34. We complied and issued our decision in Downs IV, in

which we concluded that Krankel counsel had abdicated his role as counsel, resulting in the

presumption of prejudice accruing from counsel’s deficient representation. Downs IV, 2016 IL

App (2d) 121156-B, ¶ 56. The State appealed our judgment in Downs IV, and the supreme court

denied the State’s petition for leave to appeal, but, in the exercise of its supervisory authority, it

directed us to vacate our opinion in Downs IV and to reconsider defendant’s arguments in light of

Cherry, 2016 IL 118728. People v. Downs, No. 121100 (Ill. Nov. 23, 2016) (supervisory order).

¶ 34   On December 28, 2016, defendant filed a motion for leave to file a supplemental brief to

consider the effect, if any, of Cherry on our consideration of his claims. The State had no

objection, so long as it was permitted to file a response. We granted defendant’s motion and

ordered supplemental briefing to consider Cherry. Defendant has submitted his supplemental

brief, the State has submitted its supplemental response brief, and defendant has submitted his

supplemental reply brief.

¶ 35   Therefore, in accord with our supreme court’s instructions, we now vacate Downs IV and

return to the procedural position we were in following Downs III: considering defendant’s

contentions regarding the second Krankel hearing, but this time in light of Cherry.

¶ 36                                       II. ANALYSIS

¶ 37   In this appeal, we consider defendant’s claim that Krankel counsel provided ineffective

assistance. Defendant argues that Krankel counsel effectively abdicated his role as defendant’s

counsel by abandoning all of defendant’s specific allegations of ineffective assistance of trial

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counsel in the third amended motion even though he had adopted four such claims in the second

amended motion.        Defendant further contends that prejudice may be presumed from the

abandonment, because it resulted in the failure to subject trial counsel’s conduct to any

meaningful adversarial testing and effectively deprived him of the benefit of counsel. In our

view, the primary issue in this case is whether prejudice may be presumed, as in Cronic, or

whether defendant must demonstrate prejudice under Strickland. To get to that point, we must

first consider the contours of proving an ineffective-assistance claim.

¶ 38                     A. Ineffective-Assistance Claims and Their Review

¶ 39   Generally, a claim of ineffective assistance of counsel is considered under the familiar

Strickland standard. Cherry, 2016 IL 118728, ¶ 24. Under the Strickland standard, in order to

prevail on a claim of ineffective assistance, the defendant must show both that counsel’s

performance was deficient and that counsel’s deficient performance prejudiced the defendant.

Id. In other words, the defendant must demonstrate that counsel’s performance fell below an

objective standard of reasonableness and that, but for counsel’s unprofessional errors, there is a

reasonable probability that the result of the proceeding would have been different. Id. The

defendant must satisfy both the deficient-performance and prejudice elements of the Strickland

standard; if the defendant fails to satisfy either element, he or she cannot prevail on his or her

claim. Id.

¶ 40   There are, however, certain instances in which prejudice need not be shown, but will be

presumed. Id. ¶ 25. Prejudice may be presumed where: (1) the defendant is denied counsel at a

critical stage of the proceedings; (2) counsel entirely fails to subject the State’s case 2 to


       2
           Cronic arose in the context of an allegation that trial counsel was ineffective for failing

to subject the State’s case to meaningful adversarial testing. Here, the ineffectiveness at issue is


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2017 IL App (2d) 121156-C


meaningful adversarial testing; or (3) counsel is called upon to represent a client in

circumstances under which no lawyer could provide effective assistance. Id. In particular, “the

second Cronic exception applies when ‘counsel’s effectiveness has fallen to such a low level as

to amount not merely to incompetence, but to no representation at all.’ ” Id. ¶ 26 (quoting

People v. Caballero, 126 Ill. 2d 248, 267 (1989)).       However, the circumstances under which

prejudice may be presumed occur only rarely. Id. For example, discussing the meaningful-

adversarial-testing exception, our supreme court identified only two cases in which it found that

a defendant successfully invoked the exception.          Id. ¶¶ 27-28.    Thus, our supreme court

cautioned, that exception will be successfully invoked only rarely and in extreme circumstances.

Id. ¶¶ 26-29.

¶ 41   The State suggests that there is no authority for the proposition that the performance of

Krankel counsel should be subject to a Strickland analysis. While it is true that, in his original

brief, defendant did not cite any case in which ineffective assistance was alleged against Krankel

counsel and a Strickland analysis was applied, this argument is neither serious nor meritorious.

First we note that, in this case, Krankel counsel was appointed to represent defendant on a

posttrial motion. A posttrial motion has long been held to be a critical part of the criminal

proceeding, and, as a result, the defendant is still entitled to constitutionally effective assistance

of counsel. See People v. Abdullah, 336 Ill. App. 3d 940, 950 (2003) (a posttrial motion is a

critical part of the criminal proceeding, to which the defendant’s constitutional right to the


on the part of Krankel counsel, who was charged with presenting allegations of ineffectiveness

of trial counsel. Therefore, in the Krankel context, Krankel counsel is alleged to have failed to

subject trial counsel’s actions to meaningful adversarial testing, as trial counsel (and no longer

the State) is the defendant’s true opponent.


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2017 IL App (2d) 121156-C


assistance of counsel attaches). The State cannot maintain any pretense that Krankel counsel’s

performance cannot be subject to the constitutional standards set forth in Strickland. On a more

pragmatic level, the contention is squarely refuted by Cherry, in which our supreme court

applied a Strickland analysis to a claim of ineffective assistance of Krankel counsel. Cherry,

2016 IL 118728, ¶¶ 23-33. While we are not sure that this is a serious contention raised by the

State, to the extent that it is, it is without merit.

¶ 42                                     B. The Krankel Process

¶ 43    As it has developed, a Krankel inquiry proceeds in two stages. In the first stage, the trial

court examines the factual bases of the defendant’s pro se claims of ineffective assistance of trial

counsel. People v. Moore, 207 Ill. 2d 68, 77-78 (2003). If, in this preliminary inquiry, the trial

court determines that the claims lack merit or pertain only to matters of trial strategy, then it need

not appoint new counsel and may deny the defendant’s pro se motion. Id. at 78. If, however, the

claims show possible neglect on trial counsel’s part, the trial court will appoint new counsel. Id.

Following the appointment of new counsel (i.e., Krankel counsel), the matter proceeds to the

second stage of the Krankel inquiry. Id. The second stage consists of an adversarial and

evidentiary hearing on the defendant’s claims, and during this hearing the defendant is

represented by Krankel counsel. People v. Flemming, 2015 IL App (1st) 111925-B, ¶ 82.

¶ 44    While the foregoing adequately outlines the overall Krankel process, it does not define

the obligations of Krankel counsel during the second stage of the Krankel inquiry. Indeed, the

State vigorously argues that Krankel counsel’s role is to “independently evaluate the defendant’s

claim.” Moore, 207 Ill. 2d at 78. This argument is made in service of the entirely appropriate

position of supporting the trial court’s judgment (and, by consequence, Krankel counsel’s

actions).   However, by truncating the relevant passage, the State overlooks the context of

Moore’s discussion of the Krankel process.

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¶ 45   Moore analyzed the trial court’s refusal to consider the defendant’s pro se allegations of

ineffectiveness of trial counsel contained in a motion for the appointment of counsel other than

the public defender.    Id. at 70.   In noting that Krankel applied to the defendant’s pro se

allegations, Moore discussed the overall Krankel process:

               “In interpreting Krankel, the following rule developed.        New counsel is not

       automatically required in every case in which a defendant presents a pro se posttrial

       motion alleging ineffective assistance of counsel. Rather, when a defendant presents a

       pro se posttrial claim of ineffective assistance of counsel, the trial court should first

       examine the factual basis of the defendant’s claim. If the trial court determines that the

       claim lacks merit or pertains only to matters of trial strategy, then the court need not

       appoint new counsel and may deny the pro se motion. However, if the allegations show

       possible neglect of the case, new counsel should be appointed. [Citations.] The new

       counsel would then represent the defendant at the hearing on the defendant’s pro se claim

       of ineffective assistance. [Citations.] The appointed counsel can independently evaluate

       the defendant’s claim and would avoid the conflict of interest that trial counsel would

       experience if trial counsel had to justify his or her actions contrary to [the] defendant’s

       position. [Citations.]” Id. at 77-78.

The court then considered the trial court’s role in conducting the first-stage Krankel inquiry. Id.

at 78-79.

¶ 46   Thus, the context of the passage in Moore that the State cites is an explanation of the trial

court’s role, not Krankel counsel’s role. Further, the interesting part of the passage as it relates

to Krankel counsel’s role is the fact that Krankel counsel is appointed to represent the defendant

in the upcoming adversarial hearing. The State’s conception of Krankel counsel’s role overlooks

the fact that counsel has been appointed to represent the defendant and thus divorces counsel

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2017 IL App (2d) 121156-C


from his or her obligations to the defendant, instead setting him or her up as some sort of

investigative arm of the trial court. Thus, according to the State, in this case, Krankel counsel

simply “independently evaluate[d] the defendant’s claim[s]” before “declin[ing] to adopt” any of

the specific allegations of ineffective assistance of trial counsel.

¶ 47   However, if we keep in mind that Krankel counsel is appointed to represent the defendant

at the upcoming second-stage adversarial hearing, we clearly see what the Moore court was

contemplating when it said that “[t]he appointed counsel can independently evaluate the

defendant’s claim and would avoid the conflict of interest that trial counsel would experience if

trial counsel had to justify his or her actions contrary to [the] defendant’s position.” Simply, this

passage notes that new counsel would face no conflict of interest in presenting the defendant’s

arguments to the trial court, whereas trial counsel, in attempting to present those same

allegations, would face an impermissible conflict of interest. The independent evaluation of the

defendant’s allegations must be conducted with an eye toward representing the defendant at the

upcoming second-stage adversarial hearing, and not simply with the goal of determining

whether, in Krankel counsel’s opinion, any of the defendant’s allegations are substantively

meritorious. In other words, properly viewed, Moore commands that Krankel counsel be an

advocate for the defendant, not for the State or the trial court. Thus, this passage in Moore,

contrary to the State’s argument, does not justify Krankel counsel’s conduct in this case; at best,

it simply does not support Krankel counsel’s conduct, and at worst, it demonstrates that Krankel

counsel’s conduct was wholly unsupported by law.

¶ 48   That leaves the question of what, precisely, are Krankel counsel’s obligations once he or

she is appointed? Krankel counsel correctly noted below, and the State notes on appeal, that any

attorney, including Krankel counsel, has an ethical obligation not to present a frivolous pleading.

Ill. S. Ct. R. 137 (eff. July 1, 2013); Ill. R. Prof’l Conduct 2010 R. 3.1 (eff. Jan. 1, 2010); People

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v. Greer, 212 Ill. 2d 192, 209 (2004). This raises the question of how that ethical obligation

harmonizes with Krankel counsel’s obligation to represent the defendant at the second-stage

adversarial hearing.

¶ 49   This can be answered in two parts. The obligation to represent the defendant requires

Krankel counsel to independently evaluate the defendant’s pro se allegations of ineffective

assistance of trial counsel and present those with merit to the trial court during the second-stage

adversarial hearing. What, then, should be the criteria to determine merit? In our view, the

criteria flow from the obligation not to present a frivolous pleading.

¶ 50   A frivolous claim is one with no arguable basis in law or in fact. People v. Hodges, 234

Ill. 2d 1, 16 (2009). Conversely, a nonfrivolous claim will have at least an arguable basis in law

or in fact, although it might turn out to be unsuccessful. People v. Teran, 376 Ill. App. 3d 1, 2

(2007). In spite of the uncertainty, counsel’s obligation to represent the defendant requires him

or her to present any nonfrivolous claim to the trial court even where there remains a possibility

or even likelihood that the defendant will not prevail on the claim. To place this into the context

of a Krankel inquiry, Krankel counsel must sift through the defendant’s pro se allegations to

determine if any are nonfrivolous and then must present those nonfrivolous claims to the trial

court during the second-stage adversarial hearing.

¶ 51   The second part of our answer comes into play if Krankel counsel cannot find even a

single nonfrivolous allegation of ineffective assistance of trial counsel. In that case, counsel’s

ethical obligations preclude him or her from presenting any of the allegations at the second-stage

adversarial hearing, but he or she is still obligated to represent the defendant. The key to

resolving this conundrum resides in Greer. In that case, our supreme court held that counsel was

required to seek to withdraw where counsel could not discern any nonfrivolous claims. Greer,

212 Ill. 2d at 209. Thus, if, after his or her independent evaluation, Krankel counsel is unable to

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discern any nonfrivolous allegations, he or she should seek permission from the trial court to

withdraw from his or her representation of the defendant. Id. We further suggest that this

procedure should conform to that established in Anders v. California, 386 U.S. 738 (1967), in

that Krankel counsel will accompany the motion requesting permission to withdraw with a

memo analyzing the defendant’s allegations and explaining why they lack arguable merit. See

also People v Kuehner, 2015 IL 117695, ¶ 21 (in postconviction setting, appointed counsel must

explain why each of the petitioner’s claims is frivolous or patently without merit). In this way,

Krankel counsel will avoid the sort of problem that occurred in this case. With these principles

in mind, we turn to defendant’s contentions.

¶ 52                           C. Krankel Counsel’s Performance

¶ 53   Defendant argues that Krankel counsel provided ineffective assistance because, in the

third amended motion, he abandoned all of the specific pro se allegations of ineffective

assistance of trial counsel, including those that he had adopted in the second amended motion,

thereby abdicating his responsibility to represent defendant.       Defendant argues that the

abandonment of the alibi and bench-trial claims constituted deficient performance. Defendant

then contends that, under the meaningful-adversarial-testing exception of the Cronic analysis,

prejudice should be presumed. Alternatively, defendant contends that he was prejudiced by

counsel’s failure to adopt any specific allegations of ineffective assistance of trial counsel.

Defendant concludes that, based on Krankel counsel’s deficient performance and the presumed

prejudice or, alternatively, demonstrated prejudice accruing from it, Krankel counsel provided

ineffective assistance.

¶ 54   We can easily discern the deficient-performance portion of defendant’s claim. As we

have discussed, Moore suggests that, when Krankel counsel is appointed to represent a

defendant, he or she has the obligation to present all nonfrivolous claims from the defendant’s

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2017 IL App (2d) 121156-C


pro se allegations of ineffective assistance of trial counsel. This means that any claim with an

arguable basis in law or in fact must be presented. Defendant contends that the alibi and bench-

trial claims are two such nonfrivolous claims.

¶ 55   In the alibi claim, defendant alleged that trial counsel did not investigate the existence of

the alibi that he was at work at his seasonal employment, as was his wont at that time, during the

overnight hours of November 9 and 10, 1996. During the initial preliminary inquiry, trial

counsel stated that he had talked with Patricia but that she had nothing concrete, beyond her

testimony, to prove up the alibi. Trial counsel also inquired with defendant’s then-employer,

Borg-Warner, but was informed that defendant’s employment records were no longer available.

In the third amended motion, Krankel counsel concluded that defendant’s alibi claim could not

succeed at the second-stage hearing, and he chose not to raise it.

¶ 56   The problem here is that Patricia averred that trial counsel had not investigated her alibi

information around the time of trial. While the decision to call a witness or to present an alibi

defense is a matter of strategy that is generally immune from review, counsel must first

investigate the claim. People v. Brown, 336 Ill. App. 3d 711, 718 (2002); see also Bryant v.

Scott, 28 F.3d 1411, 1415 (5th Cir. 1994) (an attorney is required to perform a reasonable

amount of investigation; “when alibi witnesses are involved, it is unreasonable for counsel not to

try to contact the witnesses” to determine whether their testimony would be helpful to the

defense). Thus, defendant raised the clearly potentially meritorious claim that trial counsel had

failed to adequately investigate defendant’s alibi that he was at work. Krankel counsel admitted

that he did not consult with defendant, and we further infer that he did not contact Patricia to

ascertain whether she had anything that could confirm the alibi, because he indicated that he

relied only on transcripts and the court file in preparing the third amended motion. We recognize

that trial counsel extensively discussed his investigation at the initial preliminary inquiry.

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Nevertheless, defendant had presented a nonfrivolous claim, albeit one that might not succeed. It

was incumbent upon Krankel counsel, therefore, to present the nonfrivolous claim with whatever

support he could muster at the second-stage Krankel hearing. Krankel counsel’s failure to

specifically present the claim fell below an objective standard of reasonableness.

¶ 57   In contrast, we cannot say that defendant’s bench-trial allegation presented a nonfrivolous

claim. We note that, after the jury trial commenced, defendant no longer had the right to waive

the jury and proceed with a bench trial; rather, the decision was within the trial court’s discretion.

Zemblidge, 104 Ill. App. 3d at 657. Thus, there was no guarantee that, after the jury trial had

commenced, the trial court would have granted such a request. It is therefore arguable that

whether to pursue defendant’s wish to waive the jury became a matter of trial strategy, which is

virtually unreviewable in the context of an ineffective-assistance claim.             However, this

arguability suggests that the claim might be, therefore, nonfrivolous.

¶ 58   Even so, we still cannot say that defendant’s bench-trial allegation constituted a

nonfrivolous claim. Accepting for the sake of argument that defendant had an unfettered right to

inform the trial court that he wished to waive the jury, there is no question that he did not so

inform the trial court. When counsel refuses or fails to do so, the defendant is obliged to make

his wish to waive the jury known to the trial court. People v. Powell, 281 Ill. App. 3d 68, 73

(1996). Despite commenting during the flawed Krankel hearing that he was virtually certain that

he wanted to convert his jury trial into a bench trial, defendant did not communicate this desire to

the trial court. In other words, the record affirmatively rebuts this allegation, because defendant

had many opportunities throughout the trial to inform the trial court that his trial counsel was

refusing to raise his request to waive the jury and proceed from that point with a bench trial.

Thus, we cannot say that this claim was nonfrivolous, and Krankel counsel’s failure to adopt it

does not constitute deficient performance.

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¶ 59   As a third example of an abandoned claim, we note that defendant alleged in his pro se

motions that “Baby” told Hernandez that he had seen only one person, Davila, fleeing from the

scene of the shooting. Hernandez mentioned the statement to the police, but she was unable or

unwilling to give Baby’s name to the police. Defendant averred that he informed trial counsel

that Baby was Acevedo and that Acevedo had continued to live in the area since the shooting.

Trial counsel stated that at the time of trial Hernandez could not recall the statement and could

not recall Baby’s identity. Further, the police reports provided a dead end. Trial counsel did not

comment on whether defendant provided him with Baby’s identity. At the initial preliminary

inquiry, the trial court dismissed the claim as only a rumor that was a dead end.

¶ 60   In the third amended motion, Krankel counsel declined to adopt the allegation, because

the decision not to call a particular witness was a matter of trial strategy. Krankel counsel further

reasoned that defendant had failed to overcome his burden of demonstrating why it was not a

sound strategic decision and had failed to show either deficient representation or prejudice.

¶ 61   The essence of defendant’s allegation was that trial counsel failed to investigate

Acevedo’s purported statement.       According to defendant, he made trial counsel aware of

Hernandez’s statement to the police. Defendant also provided trial counsel with Baby’s identity.

According to trial counsel, he never investigated Acevedo, and he was stymied by Hernandez’s

failure or reluctance to identify Baby so that he could follow up on the purported statement.

However, defendant’s allegations concerning this claim directly contradict trial counsel’s

statements and clearly indicate that trial counsel did not investigate a potentially exculpatory

witness. Moreover, Acevedo’s purported statement contradicts Davila’s version of events and

supports defendant’s.

¶ 62   Krankel counsel’s decision not to adopt the allegation about Acevedo’s purported

statement was deficient representation. The allegation on its face indicated that trial counsel had

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not adequately investigated Acevedo and his purported statement. Trial counsel had Acevedo’s

identity, and the import of his statement was manifest. Accordingly, the failure to present the

allegation is clearly indicative of potential neglect.

¶ 63    With that said, we acknowledge that, in Downs IV, we noted that defendant had not raised

this claim on appeal, but, because the allegation was so obviously nonfrivolous, we believed that

it illustrated Krankel counsel’s deficient performance and that we could appropriately raise the

issue sua sponte. Downs IV, 2016 IL App (2d) 121156-B, ¶¶ 53-54. In its supplemental

response brief, the State legitimately chides us for “search[ing] the record for unargued and

unbriefed reasons to reverse the trial court’s judgment. People v. Givens, 237 Ill. 2d 311, 323

(2010).” The State then argues that no prejudice could have occurred, because Acevedo was

incarcerated at the time of the offense, so he could not have seen anyone fleeing the scene of the

offense. The State supports this contention with a printout of Acevedo’s Illinois Department of

Corrections Offender Custody Report, establishing that Acevedo was incarcerated on January 19,

1994, and remained incarcerated until his June 17, 1998, release on parole. We may take judicial

notice of such a report. Cordrey v. Prisoner Review Board, 2014 IL 117155, ¶ 12 n.3. We

therefore conclude that the Baby claim has been factually debunked and is thus without merit.

¶ 64    Nevertheless, the Baby claim very adequately illustrates our point concerning Krankel

counsel’s obligation to present nonfrivolous claims, notwithstanding any misgivings about their

probability of success. If the claim had been presented, as it should have been, then the trial

court could have evaluated it during the second-stage hearing, and the State could have, and

should have, presented the information that Acevedo was incarcerated at the time of the offense.

This claim, then, in a nutshell, exemplifies the obligations of Krankel counsel and the process

that a Krankel inquiry should follow.



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¶ 65   Based on the above examples, we conclude that Krankel counsel provided deficient

representation under the first prong of the Strickland analysis. The alibi claim alleged that trial

counsel did not investigate the alibi. Krankel counsel had Patricia’s affidavit indicating that

defendant had been at work at the time of the offense, but he likewise did not fully investigate

the claim. This claim should have been presented at the second-stage hearing. The failure to

present the claim fell below an objective standard of reasonableness in representing defendant.

Likewise, the failure to present the Baby claim constituted deficient representation. However,

because the State has factually debunked the claim, and because we have accepted this

information (thus bypassing the normal Krankel process), there is no need to further press this

claim in any future proceedings. Having found that Krankel counsel’s representation fell below

an objective standard of reasonableness, we now consider prejudice.

¶ 66   As noted above, defendant argues that, under the meaningful-adversarial-testing

exception of the Cronic analysis, prejudice may be presumed. We agree.

¶ 67   Krankel counsel did not just abandon defendant’s pro se allegations. Instead, Krankel

counsel composed a lengthy memorandum that usurped both the State’s and the trial court’s roles

in the second-stage hearing. For example, regarding the alibi claim, counsel wrote:

               “Counsel declines to adopt Defendant’s #4 and offer Patricia Serrano’s sworn and

       notarized statement file stamped September 8, 2009, attached as Exhibit F-1 thru [sic] F-

       3. Trial counsel’s responses offered at the hearing on October 28, 2009, inform that he

       conducted multiple conversations with Ms. Serrano prior to Defendant’s trial and at no

       time did she offer counsel the basis for an alibi defense that could be confirmed. While

       the Patricia Serrano affidavit signed and dated August 20, 2009, and filed [sic] stamped

       September 8, 2009, may have substance in other venues, nothing is offered by Defendant

       via the affidavit that a confirmable alibi was asserted to or available to trial counsel prior

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       to the time of trial. The burden falls upon the defendant to show why trial counsel’s

       decision was not sound trial strategy. His decision to not pursue defendant’s alibi claim

       through Patricia Serrano’s potential testimony clearly falls into the arena of trial strategy.

       Defendant offers nothing here that indicates anything more than a disagreement with

       counsel’s strategy and tactics in conducting the trial thus failing to establish error under

       Strickland’s first prong.”

This passage usurped the State’s role by presenting argument, not in support of defendant’s

claim, but directly against defendant’s claim. Thus, Krankel counsel was not acting as an

advocate for defendant, but as an advocate for the State. This passage also usurped the trial

court’s role, because it adjudged the claim to be nothing more than a disagreement with trial

counsel’s strategic choices, which would fail as a claim of ineffective assistance of trial counsel.

However, the third amended motion was submitted in conjunction with the second-stage hearing.

As we have determined, Krankel counsel’s obligation at that point was to represent defendant.

By submitting argument directly inimical to defendant’s position, counsel failed to represent

defendant. By acting as an auxiliary arm of the trial court, counsel failed to represent defendant.

This “representation” effectively constitutes no representation at all.       Thus, defendant was

effectively deprived of any representation whatsoever.

¶ 68   Accordingly, we hold that Krankel counsel failed to subject trial counsel’s conduct,

according to any of defendant’s specific claims, to meaningful adversarial testing. Instead,

Krankel counsel simply advocated against defendant’s interests.          By not only abandoning

defendant’s pro se claims against trial counsel, but also directly advocating against them, none of

the conduct at issue was actually subjected to any sort of adversarial testing. Thus, defendant has

satisfied the meaningful-adversarial-testing exception of the Cronic analysis.



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¶ 69    We note that Krankel counsel did “advocate” the nonspecific catch-all claim of

ineffective assistance of trial counsel. This, however, is insufficient to remove Krankel counsel’s

“representation” from the confines of the Cronic analysis. Under Strickland, which was the

standard under which the trial court was to evaluate defendant’s claims, the defendant must show

both deficient performance and prejudice. Cherry, 2016 IL 118728, ¶ 24. The failure to prove

either will preclude a finding of ineffective assistance. Id. In this case, where Krankel counsel

abandoned all of defendant’s specific claims against trial counsel, there was literally no way the

trial court could have found deficient performance or prejudice. Because Krankel counsel

presented no specific instance of deficient representation, the trial court could not have found

any deficiency, much less any prejudice resulting therefrom.             Thus, Krankel counsel’s

presentation of the nonspecific catch-all claim, in actuality, amounted to no representation at all.

¶ 70   Indeed, the catch-all claim, presented with none of the specific allegations, was itself

frivolous. If the claim was doomed from the outset, then there was no justification for presenting

it. Krankel counsel realized this, but rationalized that he was simply throwing defendant upon

the trial court’s mercy. Instead of arguing against his client, counsel was obligated to move to

withdraw if there were no claims that he could ethically present to the trial court at the second-

stage hearing. However, counsel chose the worst option of all: abandon nonfrivolous claims and

present a frivolous one in their place. (Of course, had counsel retained the nonfrivolous claims,

the catch-all claim would not have been frivolous).

¶ 71   In addition, while Cherry cautions against the application of the Cronic analysis except in

narrowly defined and (hopefully) infrequent circumstances (id. ¶ 26), Krankel counsel’s

performance here was so egregiously deficient as to factually distinguish Cherry. In Cherry,

when Krankel counsel was appointed, he immediately filed and argued a motion to reconsider

the defendant’s sentence and also orally argued the defendant’s pro se claims of ineffective

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assistance. Id. ¶ 29. Our supreme court recognized that, although Krankel counsel might have

been able to do more to develop and advance the defendant’s pro se claims, his failure to do

more fell into the category of poor representation and not into the category of no representation

at all. Id.

¶ 72    Here, by contrast, Krankel counsel’s representation crashed through the category of poor

representation and landed squarely in the category of no representation at all. Although Krankel

counsel wrote a lengthy motion including an outline of his actions, this did not amount to any

representation of defendant because, in the motion, counsel not only abandoned defendant’s pro

se allegations against trial counsel but affirmatively argued directly against each and every

allegation, including the nonspecific catch-all allegation. Also, Krankel counsel did not consult

with defendant about his pro se allegations. Krankel counsel asserted in the third amended

motion that he had sufficiently consulted with defendant to ascertain his claims, but defendant

contradicted that representation, causing Krankel counsel to admit that he did not actually speak

with defendant but only reviewed the filings and reports of proceedings from the flawed Krankel

hearing. 3 Importantly, defendant informed the trial court that he told Krankel counsel that he


        3
              Krankel counsel’s failure to communicate with defendant illustrates his affirmative

abandonment of the obligations of representing defendant, in favor of his mistakenly assumed

investigative powers as a sort of adjunct to the trial court. We also note that counsel has a

general obligation to communicate with his or her client. Ill. R. Prof’l Conduct 2010 R. 1.4 (eff.

Jan. 1, 2016). When Krankel counsel undertook to comply with Rule 651(c), he voluntarily

undertook the obligations outlined in that rule, which included the requirement to directly

communicate with defendant about his allegations and not simply review filings and transcripts.

We do not impose any obligation of face-to-face communication, but some direct


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had more issues he wished to raise, but, instead of ascertaining these issues, Krankel counsel

filed the third amended motion, which argued against each and every issue raised by defendant

up to that point. The trial court even offered a continuance to allow Krankel counsel to consult

with defendant, but counsel eschewed the offer and insisted that the hearing go forward. It is

apparent, then, that counsel abandoned his duties as defendant’s advocate, and his failure to

communicate directly with defendant is symptomatic of that abandonment.           Thus, Krankel

counsel’s conduct cannot be compared to counsel’s representation in Cherry, in which counsel

actually advocated for his client by filing and arguing a motion to reconsider and arguing all of

the defendant’s pro se allegations.

¶ 73   Moreover, even though Krankel counsel here raised defendant’s nonspecific catch-all

allegation of ineffective assistance, his other failures, along with the fact that the catch-all

allegation could not succeed under Strickland, rendered his presentation of the catch-all

allegation meaningless and, at best, pro forma. In this fashion, Krankel counsel’s performance

mirrors that of counsel in People v. Morris, 209 Ill. 2d 137 (2004), overruled in part on other

grounds, People v. Pitman, 211 Ill. 2d 502 (2004). In Morris, by admitting the defendant’s guilt

to the jury, counsel appeared to lay the groundwork for a plea of jury nullification based on

sympathy or compassion. Morris, 209 Ill. 2d at 182-84. This might have passed muster, because

a plea for jury nullification has been recognized as a minimal defense. Id. at 184. However,

such a defense was undermined because counsel not only conceded the defendant’s guilt, but

also affirmatively introduced evidence of the defendant’s involvement in a grisly and unrelated

murder, even though the trial court had ruled at counsel’s request that the evidence was


communication, such as by telephone or mail, was warranted as a result of counsel’s position as

defendant’s advocate.


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2017 IL App (2d) 121156-C


inadmissible. Id. at 184-85. This error was inherently prejudicial to the defendant and it served

to negate the minimally acceptable strategy of appealing to the jury’s sympathy. Id. at 187-88.

Our supreme court concluded that these circumstances constituted such a breakdown of the

adversarial process in the defendant’s trial that no meaningful adversarial testing of the State’s

case occurred. Id. at 188.

¶ 74   Similarly here, by adopting only the nonspecific catch-all allegation, Krankel counsel

was attempting to throw defendant upon the trial court’s mercy. He presented no basis on which

the trial court could have determined that trial counsel was ineffective. Instead, Krankel counsel

was apparently seeking some sort of extralegal remedy and counting upon the trial court to lay

aside its obligations, even though counsel had not provided it with any legal justification to do

so. While we doubt that this apparent strategy can be deemed even minimally acceptable where

the intended audience is not a jury but a judge, Krankel counsel, like counsel in Morris,

compounded his error by directly arguing against defendant’s interests. In Morris, our supreme

court found that a minimally acceptable defense that was undercut by prejudicial error

demonstrated that counsel was ineffective, without the need to demonstrate prejudice under

Strickland. Id. Likewise here. Krankel counsel’s strategy was likely not even minimally

acceptable, but his vigorous arguments directly against defendant’s pro se allegations served to

negate that strategy. See id. at 187-88. Accordingly, we hold that the meaningful-adversarial-

testing exception of the Cronic analysis applies here, and thus we need not address whether

defendant could show prejudice under a straightforward Strickland analysis.

¶ 75   The State argues that Krankel counsel was obligated to make an independent

investigation and to present only those claims that passed muster. We agree, with an important

caveat. Krankel counsel first and foremost represents the defendant. If his or her investigation

reveals no even potentially meritorious claims, he or she may not simply write a memorandum

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2017 IL App (2d) 121156-C


arguing against these claims and be done with his or her engagement. Rather, counsel must

move to withdraw and then explain in a separate memorandum why there are no potentially

meritorious claims. In this fashion, counsel will not violate his or her ethical obligations and will

fulfill his or her duty to represent the defendant. See supra ¶¶ 43-51.

¶ 76    The State specifically argues that Krankel counsel was obligated not to present frivolous

claims to the trial court. Again we agree. As we covered the obligations above (see supra ¶¶ 43-

51), we will not repeat our analysis here.

¶ 77    The State argues that the alibi claim presented only a matter of trial strategy. We agree

that certain decisions, such as whether to call a witness and whether to present an alibi defense,

are generally matters of trial strategy, largely immune from ineffective-assistance claims. People

v. Enis, 194 Ill. 2d 361, 378 (2000). However, defendant claimed that the failure to raise the

alibi defense and to call the witnesses supporting it was due to trial counsel’s failure to

investigate.   In support, in advance of the second-stage hearing, defendant had procured

Patricia’s affidavit and Chris’s statement, thereby raising a nonfrivolous claim that due to

neglect, not strategy, trial counsel did not raise the alibi defense. Krankel counsel was therefore

obligated to present the claim, notwithstanding the chance that it might not succeed.

Accordingly, we cannot accept the State’s contention that the alibi claim presented nothing more

than a matter of trial strategy.

¶ 78    The State argues that it was defendant’s burden to demonstrate why trial counsel’s

decision was not sound strategy and that defendant failed to carry the burden. We agree that, in

making a claim of ineffective assistance, the defendant must show that counsel’s performance

was deficient and, in so doing, overcome the presumption that counsel’s conduct was reasonable.

People v. Rhodes, 386 Ill. App. 3d 649, 653-54 (2008). However, that is defendant’s ultimate

burden. For purposes of the Krankel hearing, defendant overcame his burden by alleging, with

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2017 IL App (2d) 121156-C


evidentiary support, that trial counsel did not investigate the alibi claim, thereby removing

counsel’s decision from the realm of strategy and placing it into the realm of potential neglect.

We therefore reject the State’s contention.

¶ 79   The State disputes defendant’s contention that Krankel counsel failed to conduct a

competent and meaningful investigation into defendant’s alibi claim. Given our analysis above,

whether counsel adequately investigated the alibi claim is of no moment. Even assuming that

counsel’s investigation was exemplary, his subsequent errors rendered his representation of

defendant wholly ineffective. In any event, counsel admitted that he had not communicated with

defendant and he did not indicate that he had questioned Patricia. From this, we cannot say that

counsel’s investigation was adequate.

¶ 80   Turning to the State’s supplemental response brief, we note that the State argues that, by

submitting a supplemental brief, defendant has somehow abandoned his contentions on appeal

for our consideration. The contention is risible. Defendant’s supplemental brief was just that, a

supplement offering defendant’s insight into the effect of Cherry on the arguments raised in this

appeal. There was no need for defendant to rehash each and every argument already presented.

Rather, the supplemental brief should have been limited to the narrow scope of the effect of

Cherry. We also note that the State significantly exceeded that narrow scope in its supplemental

response brief, taking the opportunity to reargue many of the substantive points decided in

Downs IV and argued in defendant’s original briefs on appeal. This was improper. Nevertheless,

to some extent, we address these beyond-the-scope arguments.

¶ 81   The State contends that defendant here, like the defendant in Cherry, argued only that

Cronic applied and did not argue that Krankel counsel’s representation resulted in prejudice

under Strickland. That might be true with reference only to defendant’s supplemental brief, but

defendant’s arguments in this matter are presented also in defendant’s initial brief on appeal and

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his reply brief. In any event, in light of our analysis above, even if defendant had not pursued

any argument that, under a Strickland analysis, he was prejudiced by Krankel counsel’s deficient

representation, he has succeeded in demonstrating that we may presume prejudice under Cronic,

so the State’s contention need not be considered.

¶ 82   The State argues that Krankel counsel complied with the limited guidance of Moore, 207

Ill. 2d at 78, by simply performing an independent evaluation of defendant’s pro se allegations.

The State contends that, in fact, Krankel counsel surpassed his obligations by composing a 15-

page, single-spaced third amended motion “explaining why he declined to adopt each of

defendant’s pro se claims.” As noted above, we understand that Krankel counsel believed that

he was acting as an investigatory arm of the trial court rather than solely as defendant’s advocate.

We believe that counsel acted conscientiously but that, because he was confused about his

responsibilities, he failed to harmonize his evaluation with his overarching obligation to

represent defendant at the second-stage hearing. Id. at 77-78. We reject the State’s contention.

¶ 83   The State claims that no authority requires Krankel counsel to present any nonfrivolous

claim of ineffective assistance of counsel to the trial court during a second-stage hearing. While

we agree that no case expressly states this point, as we have demonstrated, it is inferable from

the requisites of the attorney-client relationship. Additionally, the State argues that Strickland

itself does not require counsel to raise all nonfrivolous claims, citing People v. Tenner, 175 Ill.

2d 372, 387 (1997). While this might be true, it is Krankel, not Strickland, that requires the

presentation of all nonfrivolous claims. In keeping with an attorney’s obligation to represent his

or her client, we can expect no less. Plus, Tenner is inapposite, as any winnowing of weaker

claims undertaken in that case was in the context of presenting an appeal. Id. at 387. Even in an

appeal, the fact that counsel may winnow the weaker arguments does not excuse him or her from

providing representation on the major meritorious issue or issues; and, if there are no potentially

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meritorious issues at all, counsel is required to navigate the Anders procedure. Why should

Krankel counsel be held to a lesser standard than any other attorney? We see no reason, and the

State provides no reason.

¶ 84   The State contends that Krankel counsel properly considered the flawed Krankel hearing

“in assessing the merits of defendant’s pro se allegations,” relying on People v. Jolly, 2014 IL

117142, ¶ 38. Jolly does not support this contention. Rather, it holds that “a preliminary

Krankel inquiry should operate as a neutral and nonadversarial proceeding. Because a defendant

is not appointed new counsel at the preliminary Krankel inquiry, it is critical that the State’s

participation at that proceeding, if any, be de minimis.” Id. It does not discuss Krankel counsel’s

obligations. Thus, the State’s argument is unsupported and therefore forfeited. Ill. S. Ct. R.

341(h)(7) (eff. Feb. 6, 2013).

¶ 85   The State argues that, after the flawed hearing, the trial court determined that none of

defendant’s claims indicated potential neglect by trial counsel. This is belied by the record. The

trial court appointed Krankel counsel because, when reviewing defendant’s initial pro se

allegations, it concluded that they showed potential neglect. It was only after converting the

preliminary Krankel hearing into a full-blown adversarial hearing on the merits that it concluded

that none of defendant’s pro se allegations were meritorious. The poisoning of the process

continued when, instead of presenting any nonfrivolous claims, Krankel counsel abandoned all

of them, even those that showed potential neglect, in light of the results of the flawed Krankel

hearing. In effect, the State attempts to divorce the trial court’s initial determination on the

merits from the flawed procedure that produced it. We reject the State’s contention.

¶ 86   The State argues that Krankel counsel was not required to consult with defendant, citing

Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013). We disagree. Rule 651(c) requires

counsel to consult with a defendant in some fashion, either in person, in writing, by phone, or by

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email, to ascertain the defendant’s contentions. The attorney-client relationship also requires

some fashion of consultation. Ill. R. Prof’l Conduct R. 1.4 (eff. Jan. 1, 2016). Here, Krankel

counsel indicated that he did not consult with defendant or conduct any investigation into his pro

se allegations beyond what had been elicited during the flawed Krankel hearing. Indeed, the

failure to communicate prevented defendant from supplementing his allegations; defendant told

the trial court that he had mentioned to Krankel counsel that he wanted to raise additional issues

and believed that Krankel counsel was amenable to his request, but defendant asserted that he

was blindsided by the filing of the third amended motion abandoning his claims and arguing

against them.    We cannot countenance Krankel counsel’s conduct or the trial court’s

acquiescence to it, because it does not comport with the requirements of Rule 651(c) or the

obligations imposed by the attorney-client relationship. Accordingly, we reject the notion that

Krankel counsel was under no obligation to consult with defendant.

¶ 87   The State argues that Krankel counsel’s evaluation of the alibi claim was reasonable. No.

Because it was nonfrivolous, Krankel counsel was required to present the alibi claim to the trial

court, not to assess that it had no merit. The ultimate assessment of merit was the trial court’s

alone; Krankel counsel usurped that prerogative by declining to adopt the claim, no matter the

reasonableness of his assessment. The point in this appeal is not to adjudicate the merits of

defendant’s claims, but to determine whether Krankel counsel provided constitutionally effective

assistance.   Where counsel not only abandoned defendant’s nonfrivolous claims but also

affirmatively argued against defendant’s interests, we cannot say that counsel provided effective

assistance, no matter how weak the merits of those claims appear. If counsel concluded that the

claims were frivolous, his remedy was to follow Greer and move to withdraw and submit the

necessary document analyzing the insufficiency of the potentially meritorious claims.         See

Keuhner, 2015 IL 117695, ¶ 21. We reject the State’s contention.

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¶ 88   The State continues, dissecting Krankel counsel’s actions with respect to the perceived

lack of merit of the alibi claim. However, in light of the fact that counsel abandoned the claim

and argued directly against defendant’s interests, we believe the argument to be ultimately

misplaced.    We reiterate that, where Krankel counsel not only abandoned defendant’s

nonfrivolous claims but also affirmatively argued against defendant’s interests, we cannot say

that counsel provided effective assistance, no matter how weak the merits of those claims appear.

Further, we note that all the State’s arguments are crafted through the lens of a Strickland

analysis and do not address how the application of presumed prejudice impacts them. Indeed,

we believe that it means that defendant was ultimately deprived of the adversarial second-stage

Krankel hearing to which he was entitled. The remedy must be to give defendant that hearing.

Nothing in the State’s arguments about the merit of the alibi claim either addresses this issue or

changes our mind. Accordingly, we reject the State’s contentions.

¶ 89   The State argues that Krankel counsel’s participation in the second-stage hearing and

drafting of the third amended motion are sufficient to place this case into the ambit of Cherry.

We disagree. The argument overlooks the fact that Krankel counsel abandoned any pretense of

representing defendant when he argued against defendant’s interests. Thus, the argument does

not consider how Krankel counsel’s actions effectively deprived defendant of counsel during the

second-stage Krankel hearing and the impact of this effective deprivation on the analysis of

defendant’s contentions on appeal.

¶ 90   Indeed, this is clearly seen if we focus on what the State’s argument overlooks.

According to the State, Krankel counsel’s bare participation was enough to satisfy the

obligations of representation along with Cherry’s strictures. Left out of the consideration is the

fact that Krankel counsel did not consult with defendant after leaving defendant with the

impression that, when the time came to finalize all of defendant’s allegations, he not only would

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consult but also would include additional allegations of ineffective assistance of trial counsel. 4 It

is not surprising, therefore, that defendant complained that he was blindsided by Krankel

counsel’s filing of the third amended motion, in which counsel abandoned all pretense of

representing defendant and argued directly against defendant’s interests. What is surprising is

Krankel counsel’s transformation from advocate to adversary, perhaps telegraphed in Krankel

counsel’s apparent Freudian slip: “a hearing will be scheduled to allow [Krankel] counsel to

serve as Defendant’s Adversary.” Also surprising is the trial court’s acquiescence to Krankel

counsel’s actions in exchanging the role of advocate for that of adversary. Perhaps, though, it is

not too surprising, given the trial court’s continued misunderstanding of Krankel and Krankel

counsel’s obligations, along with the paucity of authority explaining those obligations. In short,

we emphatically reject any notion that Krankel counsel appropriately discharged his obligations

in a fashion that, under Cherry, would remove our analysis from the rubric of Cronic, especially

where Cherry is predicated upon the active participation of counsel on the defendant’s behalf,

while here Krankel counsel’s participation was directly inimical to defendant’s interests.

¶ 91   The State concludes with the contention that defendant received the hearing to which he

was due, because “[h]e had counsel” and “[h]is counsel worked on his behalf and presented to

the trial court the one claim [that] he felt able to present that was non-frivolous.” The fig leaf of

the catch-all allegation is transparent. As noted above, once separated from all of the other

allegations, the catch-all allegation itself became a frivolous allegation because there was no

conceivable legal merit. Thus, while Krankel counsel devoted time and effort to the drafting of

the third amended motion and his appearance at the second-stage hearing, it was for naught. The


       4
           As a result of Krankel counsel’s abandonment of defendant’s allegations of ineffective

assistance, we do not, and cannot, know what other issues defendant was planning to raise.


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third amended motion did not serve and in fact harmed defendant’s interests, and at the hearing,

counsel undermined even the feeble strategy he pursued in the motion. Accordingly, we reject

the State’s contention.

¶ 92   In sum, then, defendant has shown that, by failing to present his nonfrivolous claims,

Krankel counsel provided deficient representation. Defendant has also demonstrated that, by

rejecting those nonfrivolous claims and arguing adversely to his interests, Krankel counsel failed

to subject trial counsel’s conduct to any meaningful adversarial testing and thus effectively

deprived him of counsel during a critical stage of the proceedings, such that we may presume the

existence of prejudice without requiring defendant to demonstrate it. As a result, defendant has

successfully demonstrated that Krankel counsel provided ineffective assistance, requiring the

reversal of the trial court’s judgment.

¶ 93                                      III. CONCLUSION

¶ 94   For the foregoing reasons, we hold that Krankel counsel provided ineffective assistance,

effectively depriving defendant of a proper second-stage Krankel hearing. Accordingly, we

reverse the judgment of the circuit court of Kane County. We must also remand this cause so

that a proper second-stage Krankel hearing can be conducted. As we did in Downs I, we direct

the trial court to appoint an attorney to represent defendant in presenting his claims of ineffective

assistance of trial counsel, but we depart from our instruction in Downs I and direct the trial court

to appoint a different attorney than the attorney who was appointed and appeared for defendant

in the proceedings at issue in this appeal. The new attorney shall be allowed to conduct an

investigation into defendant’s claims of ineffective assistance of trial counsel and is admonished

to present any nonfrivolous claims supported by the record or by his or her independent

investigation; the trial court shall then hold an appropriate adversarial second-stage Krankel

hearing on those claims. If he or she finds no such claims, the new attorney should follow

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2017 IL App (2d) 121156-C


Greer, 212 Ill. 2d at 209. As we have identified at least one nonfrivolous claim based on the

present record, we do not expect that the new attorney shall need to resort to filing a motion to

withdraw accompanied by a memorandum explaining why none of the claims have arguable

merit, but we do not foreclose that possibility.

¶ 95   Reversed and remanded with directions.




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