                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Dean, 2012 IL App (2d) 110505




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    JOHN DEAN, JR., Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-11-0505


Filed                      September 7, 2012


Held                       The denial of defendant’s motion to withdraw his guilty plea and have
(Note: This syllabus       new counsel appointed based on the ineffective assistance of counsel was
constitutes no part of     upheld where the trial court’s inquiry satisfied the requirements of
the opinion of the court   Krankel and Moore, regardless of the fact that the trial court did not
but has been prepared      announce that a Krankel inquiry was being conducted.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Lake County, No. 07-CF-617; the Hon.
Review                     Christopher R. Stride, Judge, presiding.



Judgment                   Affirmed.
Counsel on                   Thomas A. Lilien and R. Christopher White, both of State Appellate
Appeal                       Defender’s Office, of Elgin, for appellant.

                             Michael J. Waller, State’s Attorney, of Waukegan (Lawrence M. Bauer
                             and Barry W. Jacobs, both of State’s Attorneys Appellate Prosecutor’s
                             Office, of counsel), for the People.


Panel                        PRESIDING JUSTICE JORGENSEN delivered the judgment of the
                             court, with opinion.
                             Justices Hutchinson and Schostok concurred in the judgment and opinion.




                                                OPINION

¶1          Defendant, John Dean, Jr., appeals from the denial of his motion to withdraw his guilty
        plea. Defendant argues that the trial court erred in failing to appoint new counsel to represent
        him on his motion where the motion alleged counsel’s ineffectiveness. He asks that we
        reverse the trial court’s denial of his motion and remand for the appointment of new counsel
        and further postplea proceedings. For the reasons that follow, we affirm.

¶2                                      I. BACKGROUND
¶3          Defendant pleaded guilty to one count of first-degree murder (720 ILCS 5/9-1(a)(1)
        (West 2006)) in exchange for the dismissal of seven other first-degree murder charges and
        a sentencing cap of 45 years.
¶4          Following a sentencing hearing, the trial court sentenced defendant to 33 years in prison.
        Defendant moved for reconsideration of his sentence. The trial court denied defendant’s
        motion, and defendant timely appealed. On appeal, we vacated the trial court’s order and
        remanded for compliance with Illinois Supreme Court Rules 604(d) (eff. July 1, 2006) and
        605(c) (eff. Oct. 1, 2001). People v. Dean, No. 2-10-0240 (2010) (unpublished order under
        Supreme Court Rule 23).
¶5          On remand, defendant filed a motion to withdraw his plea.1 The motion alleged:


                1
                  In his brief, defendant states that on May 12, 2011, he filed a pro se motion to withdraw his
        guilty plea and that, on that same day, defense counsel also filed a motion, which adopted
        defendant’s pro se allegations. Defendant cites page 368 of the record in support of his statement
        that he filed a pro se motion; however, located at page 368 is not a pro se motion to withdraw his
        plea but rather a motion by defense counsel to withdraw as counsel. Defense counsel’s motion states
        that defendant accused counsel of (1) advising defendant to plead guilty so that counsel would not

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             “1. On November 6, 2009 he entered a negotiated Plea of Guilty to the offense of
         Murder;
             2. At the time of the entry of the plea, and for a long time prior thereto, he was being
         medicated in an amount that affected his ability to reason and understand and he did not
         fully appreciate the consequences of his plea;
             3. Since his medication dosage has been reduced he is more alert and better able to
         reason and understand matters;
             4. He was never informed that the jury could return a verdict of ‘Second Degree
         Murder’;
             5. His plea was induced by his attorney because his attorney did not want to try his
         case.”
¶6       On May 26, 2011, the trial court held a hearing on defendant’s motion to withdraw his
     guilty plea. The court first addressed defense counsel’s arguments concerning whether the
     medication taken by defendant affected defendant’s ability to knowingly and voluntarily
     plead guilty. Defense counsel argued that, when defendant pleaded guilty, defendant was
     taking two antipsychotic drugs, which made defendant sleepy and interfered with his ability
     to reason and understand what was taking place. The court stated that, although two years
     had passed, it recalled very vividly defendant’s Rule 402 (Ill. S. Ct. R. 402 (eff. July 1,
     1997)) conference and plea hearing, due to the nature of the offense. The court noted that it
     recalled asking defendant about the medications he had taken and that defendant had seemed
     lucid, responded instantaneously to the court’s questions, and acted without hesitation.
¶7       Turning to issues four and five of defendant’s motion, the court asked defense counsel
     whether he had been unwilling to try defendant’s case. Defense counsel responded, “No, sir.
     I have been doing this for over 50 years. One more wouldn’t make much difference.” The
     court stated:
         “No, and my recollection is in that 402 conference you were driving very hard with
         respect to your readiness for trial, your belief that there was some evidence that there
         would be a second degree argument. We talked some time about that. We made a record
         on that as well; but counsel at all times, at least in front of this court, indicated and gave
         every indication to the State that he was ready, willing, and able to defend [defendant]
         should the matter proceed to trial.”
     The court next asked counsel whether he had discussed with defendant the possibility of a
     second-degree murder charge. Counsel responded that he had discussed second-degree
     murder with defendant, and he reminded the court that it had granted him permission to
     employ Dr. Conroe for the purpose of advancing a theory of second-degree murder. The State
     agreed that counsel discussed second-degree murder with the State and that second-degree



     have to try the case, (2) failing to advise defendant of all available options, and (3) allowing
     defendant to be tricked into pleading guilty. Counsel’s motion further states that defendant stated
     that he wanted new counsel. Page 369 of the record contains the motion to withdraw the plea, which
     (according to the attached Rule 604(d) certificate) was prepared by counsel.

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       murder was discussed at length during the Rule 402 conference. The court reviewed
       transcripts with defendant from immediately after the Rule 402 conference, when the court
       stated to defendant:
           “[Defense counsel] said, you know, the combination of the fact that she pulled the knife
           on you, that you had to defend yourself and the fact that you were not taking your
           medications in his opinion all laid the groundwork for a second degree murder offense,
           and this case would more appropriately be resolved if you pled guilty to a second degree
           murder.
                What I said to [defense counsel] is the same thing I’ll say to you. I don’t supervise
           the State’s Attorneys, I don’t tell them what they can and cannot offer. That’s entirely in
           their discretion as the prosecutors what they offer somebody.
                What they’re telling your attorney and what they’re telling you is they’re not going
           to offer second degree murder in this case. I can’t compel them to do it and they’re not
           going to do it. The only way you get the second degree, I guess, is if you go to trial and
           if there’s evidence to support an argument for second degree.”
       Defendant agreed that counsel advised him that the State refused to accept a plea to second-
       degree murder, but defendant insisted that counsel never told him that he could be convicted
       of second-degree murder if he went to trial.
¶8         The court found defendant’s plea to be knowing and voluntary and denied the motion.
       Defense counsel then made an oral motion for reconsideration of defendant’s sentence.2 The
       court granted the motion and reduced defendant’s sentence to 30 years in prison.
¶9         Defendant timely appealed. He asks this court to reverse the trial court’s denial of his
       motion to withdraw his guilty plea and remand for the appointment of new counsel and
       further postplea proceedings.

¶ 10                                       II. ANALYSIS
¶ 11       Defendant argues that the trial court erred by failing to appoint “different counsel to
       represent [defendant] once it became apparent from the plain language of the motion to
       withdraw plea that [defendant] was alleging plea counsel’s ineffectiveness.” He points to
       Rule 604(d), which requires that, if requested by the defendant, counsel must automatically
       be appointed to represent the defendant once he files a postplea motion. According to
       defendant, “an attorney who has been alleged to be ineffective by a defendant who is
       pursuing a post-plea motion must be discharged as counsel in favor of an attorney who will
       be able to perform those duties.” Defendant is essentially arguing that, whenever a defendant
       raises the issue of an attorney’s ineffectiveness in a postplea motion, a per se conflict of
       interest arises and new counsel must be appointed to represent the defendant on his motion.
¶ 12       In response, the State argues that the trial court sufficiently inquired into the factual basis
       of defendant’s allegations, in accordance with People v. Krankel, 102 Ill. 2d 181 (1984), and


               2
                The State did not object below to defendant’s motion to reconsider his sentence and on
       appeal raises no issue concerning its propriety.

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       People v. Moore, 207 Ill. 2d 68 (2003). Thus, according to the State, appointment of new
       counsel was not required. We agree with the State.
¶ 13        In Krankel, our supreme court held that, where a defendant has set forth a colorable claim
       of ineffective assistance of counsel, new counsel should be appointed before a hearing is
       conducted on that claim. Krankel, 102 Ill. 2d at 189. In Moore, our supreme court explained
       that new counsel is not automatically required merely because the defendant presents a pro
       se posttrial claim that his counsel was ineffective. Moore, 207 Ill. 2d at 77. The trial court
       must first examine the factual basis of the claim. Moore, 207 Ill. 2d at 77-78; People v.
       Pence, 387 Ill. App. 3d 989, 994 (2009). If the defendant’s allegations show possible neglect
       of the case, the court should appoint new counsel to argue the defendant’s claim of
       ineffective assistance. Moore, 207 Ill. 2d at 78; Pence, 387 Ill. App. 3d at 994. However, if
       the court concludes that the defendant’s claim lacks merit or pertains only to matters of trial
       strategy, the court may deny the claim. Moore, 207 Ill. 2d at 78; Pence, 387 Ill. App. 3d at
       994.
¶ 14        Defendant does not cite either Krankel or Moore and does not advance any argument that
       the court’s inquiry was inadequate. Rather, defendant maintains that no inquiry was
       necessary, i.e., that new counsel should have been appointed “once it became apparent from
       the plain language of the motion to withdraw plea that [defendant] was alleging plea
       counsel’s ineffectiveness.” However, Moore flatly refutes that contention. Indeed, “ ‘[A] per
       se conflict of interest [does not] exist merely because a defense attorney’s competence is
       questioned by his client during post-trial proceedings; rather, the underlying allegations of
       incompetence determine whether an actual conflict of interest exists.’ ” People v. Perkins,
       408 Ill. App. 3d 752, 762 (2011) (quoting People v. Davis, 151 Ill. App. 3d 435, 443 (1986)).
       Thus, as the State asserts, we must examine the underlying allegations.
¶ 15        Although not expressly raised by defendant (and thus arguably forfeited), the “operative
       concern” is whether the trial court properly inquired into the underlying factual allegations
       of defendant’s postplea claim. Moore, 207 Ill. 2d at 78-79. In Moore, the supreme court listed
       three ways in which a trial court may conduct its evaluation: (1) the court may ask defense
       counsel about the defendant’s claim and allow counsel to “answer questions and explain the
       facts and circumstances surrounding” the claim; (2) the court may have a “brief discussion”
       with the defendant about his claim; or (3) the court may base its evaluation “on its
       knowledge of defense counsel’s performance at trial and the insufficiency of the defendant’s
       allegations on their face.” Moore, 207 Ill. 2d at 78-79. Here, the trial court did all three. The
       court questioned defense counsel about the allegations raised in the motion. The court also
       had a discussion with defendant. In addition, the court considered the record and its own
       recollections about the case, including defense counsel’s performance. Thereafter, the court
       rejected defendant’s conclusory allegation that “his attorney did not want to try his case.”
       Pointing to the report of proceedings following the Rule 402 conference, the court also
       rejected defendant’s allegation that defendant was unaware of the fact that he could have
       been convicted of second-degree murder if he had gone to trial. During those proceedings,
       the court, after telling defendant that the State would not accept a plea to second-degree
       murder, told defendant that he could get a second-degree murder conviction only if he went
       to trial. Further, the record shows that defense counsel diligently prepared the case for trial

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       and secured a doctor for the purpose of advancing a second-degree murder theory at trial.
       Given the inquiry conducted by the court and the conclusory nature of defendant’s
       allegations, the court properly refused to appoint new counsel. Although the court did not
       expressly indicate that it was conducting an inquiry into defendant’s allegations pursuant to
       Krankel and Moore, that is exactly what the court did. There is no requirement that the court
       expressly state that it is conducting such an inquiry. Indeed, to so require would elevate form
       over substance. Thus, we find no error.
¶ 16       Defendant’s reliance on People v. Willis, 134 Ill. App. 3d 123 (1985), and People v.
       Williams, 176 Ill. App. 3d 73 (1988), does not warrant a different conclusion.
¶ 17       In Willis, the defendant filed a pro se motion to withdraw his guilty plea. Defense counsel
       then filed an amended motion to withdraw the guilty plea. The amended motion alleged an
       ineffective-assistance claim and a claim that the State reneged on a sentencing promise.
       Defense counsel represented the defendant at the hearing on the motion. In the apparently
       informal tenor of the hearing, the defendant, during his testimony, asked counsel several
       questions regarding defendant’s “rap sheet,” which counsel answered. Willis, 134 Ill. App.
       3d at 127-29. The defendant further testified that counsel told him to accept the plea offer
       because, with his criminal record, the trial court would be justified in imposing a greater
       sentence. However, the record or rap sheet before the trial court was not the defendant’s and
       the defendant denied, at the posttrial hearing, that the mix-up was clarified before he entered
       his plea. The trial court denied the motion. On appeal, the defendant argued that he was
       entitled to a new hearing on his motion because he was represented by the same attorney
       against whom he asserted a claim of ineffective assistance. We agreed, noting as follows:
               “At the hearing, defendant unequivocally testified he pleaded guilty and accepted the
           five-year sentence because his attorney represented to him that if he went before the
           judge, he would receive a sentence of between 14 and 30 years, and that there were ‘two
           counts of armed robbery on [his] rap sheet to hold it up.’ Defendant denied that the rap
           sheet mix-up was cleared up before he entered his plea, even though he did understand
           that the State had revised its first offer of 14 years down to five years. Defendant testified
           that because he was promised two years, he did not want to take the five, but that his
           attorney kept telling him his rap sheet would justify the court’s imposing a much heavier
           sentence.
               The circumstances surrounding the incorrect rap sheet, and the extent to which
           counsel’s advice to his client was premised on what might happen if he insisted on a trial,
           was something that should have been explored fully during the hearing. Because it was
           counsel’s performance below that was at issue, however, we believe a per se conflict of
           interest existed which required that counsel withdraw from representation of the
           defendant or, at the very least, that the court order that other counsel be appointed.”
           Willis, 134 Ill. App. 3d at 132.
       We held: “The circumstances of this case show there was a blatant per se conflict of interest,
       and that a new hearing with appointed counsel other than the public defender’s office is
       merited.” Willis, 134 Ill. App. 3d at 133. Willis thus is easily distinguishable because there
       we found, based on the defendant’s and counsel’s testimony at the hearing, that there was a


                                                  -6-
       conflict of interest and that new counsel should have been appointed. Here, the inquiry
       revealed no conflict.
¶ 18       In Williams, the defendant moved to withdraw his guilty plea, arguing “that his plea was
       obtained by ‘fraud and material misrepresentations made to him by the court, his attorney and
       other persons *** and by coercion perpetrated by his attorney, court and other persons.’ ”
       Williams, 176 Ill. App. 3d at 77. The court denied the motion, and the defendant appealed.
       On appeal, the defendant argued that he was “entitled to a new hearing on his motion to
       withdraw his guilty plea on the ground that his attorney had a conflict of interest and that he
       was denied effective assistance of counsel at the hearing.” Williams, 176 Ill. App. 3d at 79.
       Relying on Willis, the First District agreed, finding: “The question whether the assistant
       public defender actually made misrepresentations to the defendant or ‘coerced’ him into
       pleading guilty contemplates the assistance of counsel at a hearing on the motion to withdraw
       the guilty plea. The assistance should be free of any conflict of interest. A new hearing with
       appointed counsel other than the public defender’s office is required.” Williams, 176 Ill. App.
       3d at 79. Thus, the court remanded for a new hearing on the defendant’s motion to withdraw
       his plea with directions to appoint new counsel. Williams, 176 Ill. App. 3d at 81-82.
       Arguably, Williams supports defendant’s argument that, any time a defendant raises a claim
       of ineffectiveness in a postplea motion, new counsel should be appointed to represent the
       defendant on the motion. However, we disregard Williams, because it failed to address
       Krankel and it predates Moore, wherein the supreme court expressly found that new counsel
       is not automatically required merely because the defendant presents a pro se posttrial claim
       that his counsel was ineffective. Moore, 207 Ill. 2d at 77.

¶ 19                                    III. CONCLUSION
¶ 20      In light of the foregoing, the judgment of the circuit court of Lake County is affirmed.

¶ 21      Affirmed.




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