                             2018 IL App (2d) 160225 

                                  No. 2-16-0225

                            Opinion filed July 10, 2018 

______________________________________________________________________________

                                             IN THE


                              APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

______________________________________________________________________________

PEOPLE OF THE STATE OF ILLINOIS,       ) Appeal from the Circuit Court
                                       ) of Stephenson County.
      Plaintiff-Appellee,              )
                                       ) Nos. 15-CM-646
v.                                     )       15-CM-647
                                       )
PAUL E. JINDRA,                        ) Honorable
                                       ) James M. Hauser,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

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

                                           OPINION

¶1     Following a bench trial, defendant, Paul Jindra, was convicted of two counts of disorderly

conduct (720 ILCS 5/26-1(a)(1) (West 2014)) and one count of assault (id. § 12-1(a)) for an

incident involving the “village animal catcher” and one of defendant’s cats. The court sentenced

defendant to conditional discharge plus a fine and a fee. After defendant was convicted and

sentenced, he filed a pro se four-sentence motion to reconsider. The only issue raised on appeal is

whether the contents of that motion mandated that the court conduct a preliminary inquiry into a

claim of ineffective assistance of counsel, consistent with the procedure set forth in People v.

Krankel, 102 Ill. 2d 181, 189 (1984). We affirm.

¶2                                     I. BACKGROUND
2018 IL App (2d) 160225


¶3     Prior to trial, defendant’s attorney, Assistant Public Defender Travis Lutz, subpoenaed

Brissa Cuthbertson to testify. Cuthbertson appeared for trial on the originally scheduled trial

date. However, at the State’s request, the trial was continued to a later date. The court informed

Cuthbertson that her subpoena was continued to the new date set for trial and issued her a reminder

slip for the new date. On the new date set for trial, Cuthbertson failed to appear. Despite

Cuthbertson’s absence, Lutz did not request a continuance and answered that the defense was

ready for trial. Cuthbertson was not mentioned in any witness’s testimony.

¶4     The court found defendant guilty of all counts, sentenced him to one year of conditional

discharge, and ordered him to pay a fine and a fee.

¶5     On the same day as sentencing, defendant filed a pro se motion, titled “Motion (To

Reconsider),” based on Cuthbertson’s nonappearance.         In his motion, defendant wrote the

following:

               “I would like the judge to reconsider this case. the [sic] key witness, Brissa

       Cuphbertson [sic], did not appear in court, nor was her written statement submitted to the

       judge. The public defender was Mr. Travis Lutz. This eye witness [sic] is crucial to this

       defense.”

¶6     At the next court date, Lutz was unsure of how to proceed with the case, because defendant

had filed a pro se motion and Lutz had subsequently filed a motion for a new trial. Lutz informed

the court that he was ready to proceed on the motion for a new trial. The court then reminded

defendant that he was represented by counsel, that he was “not to file any pleadings,” and that

instead he should do so through his counsel. Defendant responded that he understood. The court

asked if Lutz would like time to consult with defendant about his motion to reconsider. Lutz




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responded “yes,” that he would speak to defendant, and that, “if that’s what we’re going to do,”

Lutz would file a proper motion to reconsider.

¶7     When the court set a date to hear the motions, defendant interjected, “That’s an important

point. New information is supplied by Brissa—Brissa Cuthbertson.” The court instructed

defendant to speak with his attorney about that, but defendant continued, “Yes. She doesn’t care.

She’ll come tomorrow, if you ask her. She says it was a mistake. She didn’t think she was

supposed to show up last week.” The court again admonished defendant to speak with his

attorney.

¶8     At the next court date, Lutz addressed the matter of the pro se motion to reconsider. Lutz

told the court, “I don’t think we’re looking to proceed on that in any fashion. I’d rather ask to

proceed on the motion for new trial that I had filed.” This motion, which did not mention

Cuthbertson, was heard and denied. Defendant timely appeals.

¶9                                       II. ANALYSIS

¶ 10   The sole issue on appeal is whether the trial court should have conducted a preliminary

inquiry pursuant to Krankel into defendant’s alleged claim that he was denied the effective

assistance of counsel because of counsel’s failure to secure the presence of a key witness and to

notify the judge of the witness’s statement. Defendant’s posttrial motion stated:

               “I would like the judge to reconsider this case. the [sic] key witness, Brissa

       Cuphbertson [sic], did not appear in court, nor was her written statement submitted to the

       judge. The public defender was Mr. Travis Lutz. This eye witness [sic] is crucial to this

       defense.”

¶ 11   The State responds that no Krankel inquiry was necessary, because defendant’s pro se

motion did not make an explicit or clear complaint about counsel’s performance. The State



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maintains that defendant’s claim pertained to his belief that Cuthbertson was a necessary witness,

with no indication that he was dissatisfied with his counsel.

¶ 12     When a defendant presents a pro se posttrial claim of ineffective assistance of counsel, the

trial court should conduct an inquiry to examine the factual basis of the claim. People v. Jolly,

2014 IL 117142, ¶ 29; People v. Moore, 207 Ill. 2d 68, 77-78 (2003). If a defendant’s pro se

allegations of ineffective assistance of counsel show possible neglect, new counsel is appointed to

represent the defendant in a full hearing on his claim. Moore, 207 Ill. 2d at 78.

¶ 13     However, if a defendant does not sufficiently raise an ineffective-assistance claim, he does

not trigger the need for the trial court to inquire. People v. Taylor, 237 Ill. 2d 68, 75-77 (2010).

¶ 14     Recently, the supreme court in People v. Ayres, 2017 IL 120071, considered whether the

defendant’s bare allegation of “ineffective assistance of counsel” contained in a motion to

withdraw his guilty plea and vacate his sentence was sufficient to trigger the trial court’s duty to

conduct a preliminary Krankel inquiry, even though the allegation lacked any explanation or

supporting facts.    Id. ¶ 18. The court concluded that a defendant’s “clear claim asserting

ineffective assistance of counsel, either orally or in writing, *** is sufficient to trigger the trial

court’s duty to conduct a Krankel inquiry.” Id. Thus, to be sufficient, the complaint must be

clear.

¶ 15     We must determine therefore whether defendant did enough to trigger the trial court’s duty

to inquire. In other words, whether defendant brought a clear claim to “the court’s attention.”

Ayres, 2017 IL 120071, ¶ 24. We find that defendant’s statements fell short of a clear claim of

ineffective assistance of counsel that would trigger the trial court’s duty to conduct a preliminary

Krankel inquiry.




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2018 IL App (2d) 160225


¶ 16   Defendant never stated, orally or in writing, that counsel was ineffective. Although

defendant’s motion mentioned his counsel, it is unclear that defendant, in fact, was complaining

about counsel. In short, defendant failed to make a clear claim asserting ineffective assistance of

counsel sufficient to prompt the court’s duty to conduct a Krankel inquiry.

¶ 17   In People v. Thomas, 2017 IL App (4th) 150815, ¶ 31, the court held that the defendant was

not entitled to a Krankel inquiry. The defendant did not mention his counsel in his letter to the

trial court or reference his counsel in any way. In addition, by the time it received the defendant’s

letter, the trial court was aware that both parties had been operating under the misconception that

the defendant’s charges were subject to sentencing at 85%, and the defendant was present when

the State and the defendant’s counsel learned of the error. Thus, the defendant’s letter, wherein

he stated that he would not have entered his plea if he had known that he could have received 50%

if he had gone to trial, “could have easily appeared to be his hoping to somehow get another chance

at a lesser sentence.” Id. ¶ 27. As he made no mention of his counsel, or any assertion of

ineffective assistance, the letter was subject to many interpretations, including the defendant’s

ex post facto regret at not taking the State’s alleged offer. Id. ¶ 28.

¶ 18   In Taylor, the defendant stated during allocution that he did not take a previously tendered

plea deal only because “ ‘I had no idea what I was facing’ ” and that “ ‘I would [have] jumped into

it with both feet if I knew that I was facing this type of situation.’ ” Taylor, 237 Ill. 2d at 73.

There was nothing in the defendant’s statement specifically informing the court that he was

complaining about his attorney’s performance. Nor did the defendant even mention his attorney.

Further, because his statement was “rambling,” it was “amenable to more than one interpretation.”

Id. at 77. According to the State, the statement merely showed regret at rejecting the more

advantageous plea deal before trial and not that he rejected the offer due to a material



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misunderstanding of what sentence he faced. Id. The supreme court agreed with the State that

the statement did not constitute an implicit pro se claim of ineffective assistance of counsel

sufficient to trigger the trial court’s duty to conduct a Krankel inquiry. Id.

¶ 19    The same is true in the present case. While defendant did mention counsel in his motion,

he did not complain about counsel’s performance. Nor did he complain about counsel in his oral

statements to the court. “In instances where the defendant’s claim is implicit and could be subject

to different interpretations, a Krankel inquiry is not required.” Thomas, 2017 IL App (4th)

150815, ¶ 26. As in Thomas and Taylor, defendant’s statements could be subject to differing

interpretations. He easily could have been hoping for the trial court to reopen the proofs in order

to hear the witness. Absent a clear claim of ineffective assistance of counsel, the trial court’s duty

to conduct a Krankel inquiry was not triggered. See Ayres, 2017 IL 120071, ¶ 18 (a defendant’s

“clear claim asserting ineffective assistance of counsel, either orally or in writing, *** is sufficient

to trigger the trial court’s duty to conduct a Krankel inquiry”).

¶ 20    We disagree with defendant’s suggestion that People v. Peacock, 359 Ill. App. 3d 326

(2005), is sufficiently similar to the facts presented here. In Peacock, the court held that the

defendant had triggered a preliminary Krankel inquiry when he complained to the trial court that

his attorney had not represented him to the full extent of his ability, specifically by failing to

subpoena the defendant’s witnesses and by ineffectively cross-examining witnesses at trial. Id. at

339-40. The defendant’s statements contained express accusations of ineffective assistance

against the defendant’s attorney. In contrast, here, defendant’s statements concerned his belief

that Cuthbertson was a necessary witness, with no clear indication that he was dissatisfied with

Lutz’s performance as counsel. There simply is no clear accusation of ineffective assistance, in

defendant’s pro se motion or anywhere else in the record. As defendant’s statements fell short of



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a “clear claim asserting ineffective assistance of counsel” (Ayres, 2017 IL 120071, ¶ 18), he was

not entitled to a Krankel inquiry. Accordingly, we conclude that defendant did not sufficiently

raise a pro se claim of ineffective assistance of counsel and that the trial court did not err in failing

to conduct a preliminary Krankel inquiry.

¶ 21                                     III. CONCLUSION

¶ 22    For the foregoing reasons, the judgment of the circuit court of Stephenson County is

affirmed.   As part of our judgment, we grant the State’s request that defendant be assessed $50

as costs for this appeal.   55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls, 71 Ill.

2d 166, 178 (1978).

¶ 23    Affirmed.




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