                                         2019 IL App (3d) 180275

                                Opinion filed March 28, 2019
     _____________________________________________________________________________

                                                     IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                      2019

     THE PEOPLE OF THE STATE OF                         )     Appeal from the Circuit Court
     ILLINOIS,                                          )     of the 12th Judicial Circuit,
                                                        )     Will County, Illinois,
            Plaintiff-Appellee,                         )
                                                        )     Appeal No. 3-18-0275
            v.                                          )     Circuit No. 14-CF-274
                                                        )
     ERICK M. MAYA,                                     )     Honorable
                                                        )     Daniel D. Rippy,
            Defendant-Appellant.                        )     Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
           Justices McDade and O’Brien concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                 OPINION

¶1          Following a preliminary Krankel inquiry, the Will County circuit court found no possible

     neglect of the defendant’s case on the part of defense counsel, and declined to appoint new

     counsel. On appeal, the defendant argues that the circuit court’s finding was manifestly

     erroneous.

¶2                                          I. BACKGROUND

¶3          The State charged the defendant, Erick M. Maya, with first degree murder (720 ILCS

     5/9-1(a)(1) (West 2014)), attempted first degree murder (id. § 8-4(a), 9-1(a)(1)), and unlawful

     use of a weapon by a felon (id. § 24-1.1(a)).
¶4           During jury selection, venire member Kevin McGrath indicated that he worked as a

     correctional officer with the Will County Sheriff’s Department. He also indicated that his son-in-

     law was an assistant state’s attorney in Will County. McGrath denied that he would let prejudice

     or bias affect his ability to be fair and impartial. McGrath was called in for further questioning

     regarding his son-in-law. McGrath indicated that he would not speak to his son-in-law about the

     case, and it would not “be an issue” if he found the defendant not guilty. No questions were

     asked regarding McGrath’s profession. The defendant’s attorneys did not move to dismiss

     McGrath.

¶5           The parties agreed that they would each be allotted seven peremptory challenges. The

     defendant’s attorneys used five of their seven challenges. McGrath was seated as the first

     alternate juror. When a juror became ill during the State’s case-in-chief, McGrath was, by

     agreement of the parties, seated on the jury. At the conclusion of the defendant’s trial, the jury

     found him guilty on all charged counts.

¶6           On October 8, 2014, the defendant filed a pro se motion for a new trial in which he

     alleged that George Lenard, one of his attorneys, had been ineffective. 1 Among his claims, the

     defendant alleged that he was deprived of a fair trial by an impartial jury in that:

                             “(a) Defendant informed his attorney that a correctional officer from the

                     facility housing him in [sic], and whom the defendant has had issues and conflicts

                     with, was in the jury pool.

                             (b) Defendant’s attorney knowingly refused to use a peremptory strike to

                     remove said juror.



             1
               Though the defendant was represented by two defense attorneys throughout his trial, each of his
     posttrial claims of ineffectiveness have been levied against only Lenard.
                                                         2
                            (c) Defendant’s attorney stated that he would rather have the correctional

                    officer on the jury than a venireman who was a State’s Attorney.”

¶7          At a hearing on October 14, 2014, defense counsel told the court that the defendant

     wished to withdraw his pro se motion. The defendant confirmed that he was voluntarily

     withdrawing his motion. Defense counsel subsequently filed a motion for a new trial on the

     defendant’s behalf, which was denied. On October 20, 2014, the court sentenced the defendant to

     consecutive sentences of 72 years’ imprisonment for first degree murder, 39 years’ imprisonment

     for attempted first degree murder, and 11 years’ imprisonment for unlawful use of a weapon by a

     felon. Prior to sentencing, a presentence investigation report (PSI) was filed. The PSI stated that

     defendant reported that he had never been diagnosed with a mental health illness or disorder.

¶8          Defense counsel filed a motion to reconsider sentence. Soon thereafter, the defendant

     filed a pro se motion for sentence reduction. In the motion, the defendant again alleged that

     counsel had been ineffective for failing to move to strike a juror who worked as a correctional

     officer and with whom the defendant had engaged in “several confrontations.” The defendant

     also alleged that defense counsel had been ineffective for failing “to conduct and [sic]

     investigation or subpoena [the defendant’s] hospital records, which would have forced the State

     to order a psychological evaluation.” At a hearing on those motions, the court did not allow the

     defendant to argue any of his ineffectiveness claims, only allowing him to address the single

     issue in his motion that related to sentencing. The court denied the motion.

¶9          The defendant filed another pro se motion for a new trial on January 29, 2015. In that

     motion, the defendant reiterated his previous claims of ineffective assistance of counsel. The

     court did not address the motion.




                                                      3
¶ 10          On direct appeal, this court rejected the defendant’s argument that defense counsel had

       been ineffective for failing to request a jury instruction relating to other-crimes evidence. People

       v. Maya, 2017 IL App (3d) 150079, ¶ 96. However, we agreed with the defendant’s argument—

       and the State’s confession of error—that the circuit court had failed to properly address his

       numerous posttrial claims of ineffective assistance of counsel. Id. ¶¶ 104-05. We remanded the

       matter with instructions that the court conduct a preliminary Krankel inquiry. Id. ¶ 105.

¶ 11          On remand, the court allowed the defendant to expound on his claims. The defendant’s

       exposition, along with occasional questions from the court, spans 21 pages of record. Within that

       discourse, the defendant stated:

                              “Mr. George Lenard *** allowed me to have a tainted jury which had a

                      correctional officer from the housing unit where I was housed named Kevin

                      McGrath, who I had several altercations with who would tell other inmates about

                      my case. Since my case was against a minor and—and two females, he would tell

                      other inmates in hopes to have them attack me and who would come to my cell

                      and verbally insult me. Before trial he knew who I was by me having a high

                      profile case and eventually working on my *** POD nine times before trial ***.

                      After I informed George Lenard about him, he responded telling me, ‘Oh, well,

                      we rather have him rather than anyone else or the venireman who’s a State’s

                      Attorney.’ In another occasion, after I informed him I didn’t want him on my jury,

                      he told me, ‘Well, he said he was going to be fair.’ This [correctional officer]

                      clearly had hatred towards me so of course he was going to find me guilty.”

¶ 12          The defendant also stated that he informed Lenard of his mental health history, but

       Lenard refused to order a psychological test to determine if he was fit to stand trial. The


                                                        4
       defendant testified that Lenard failed to subpoena the defendant’s hospital records or to consider

       an insanity defense. The defendant stated that he had been diagnosed with psychotic disorder and

       had been prescribed medication for schizophrenia, depression, anxiety attacks, and panic attacks.

¶ 13          The court then called Lenard to testify. The court briefly examined Lenard. The court

       asked Lenard if he ever had a good-faith belief that there was an issue with the defendant’s

       fitness or a proper defense of insanity. Lenard replied: “No, Judge. In fact, there was a lot of, um,

       discussions between myself and [the defendant] that indicated the opposite.” The court asked no

       questions related to McGrath or the composition of the jury. At a later date, after having

       reviewed the trial record and transcripts, the court found that the defendant had not shown a

       possible neglect of the case, and declined to appoint counsel.

¶ 14                                             II. ANALYSIS

¶ 15          On appeal, the defendant argues that he sufficiently demonstrated possible neglect of his

       case, and that the circuit court’s finding to the contrary was manifestly erroneous. Specifically,

       he claims that he showed that defense counsel possibly neglected his case in that counsel failed

       to (1) strike McGrath and (2) investigate the defendant’s mental health issues. The defendant

       does not, however, challenge the procedures employed by the circuit court in conducting the

       preliminary inquiry.

¶ 16          Through People v. Krankel, 102 Ill. 2d 181 (1984), and its progeny, our supreme court

       has developed a procedural framework for the resolution of pro se posttrial claims of ineffective

       assistance of counsel. Where a defendant makes a posttrial claim of ineffective assistance of

       counsel, the circuit court must conduct a preliminary inquiry into those claims. People v. Moore,

       207 Ill. 2d 68, 77 (2003). One goal of this preliminary inquiry is to allow the circuit court to

       create the necessary record for any claims raised on appeal. People v. Jolly, 2014 IL 117142,


                                                         5
       ¶ 38; see also Moore, 207 Ill. 2d at 81 (observing that appellate review is precluded where the

       circuit court makes no record of a defendant’s claims). If, after this preliminary inquiry, the

       circuit 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.” Moore, 207 Ill.

       2d at 78. If the court instead determines that there has been “possible neglect of the case,” it must

       appoint new counsel to represent the defendant at a full hearing on his claims on ineffective

       assistance. Id.

¶ 17           A court’s determination that a defendant’s claim does not demonstrate a possible neglect

       of the case will be reversed where that decision is manifestly erroneous. E.g., People v.

       Robinson, 2017 IL App (1st) 161595, ¶ 90. “Manifest error is error which is ‘ “clearly evident,

       plain, and indisputable.” ’ ” People v. Morgan, 212 Ill. 2d 148, 155 (2004) (quoting People v.

       Johnson, 206 Ill. 2d 348, 360 (2002), quoting People v. Ruiz, 177 Ill. 2d 368, 384-85 (1997)).

¶ 18                                 A. Failure to Strike McGrath from the Jury

¶ 19                                          1. Procedural Arguments

¶ 20           We first consider the defendant’s claim that the circuit court’s ruling was manifestly

       erroneous where the court found that the defendant failed to show possible neglect of his case

       based on defense counsel’s failure to strike McGrath from the jury. We begin our analysis of this

       issue by addressing two procedural arguments raised by the State. First, the State contends that

       the defendant has forfeited his present argument by failing to raise it in his first direct appeal.

       The State’s argument proceeds as follows:

                                “Defendant raised in his direct appeal the issue that the trial judge failed to

                         hold a Krankel hearing on his additional claims of ineffective assistance;

                         therefore, this claim was known to defendant prior to the filing of his direct


                                                           6
                      appeal. [Citation.] Defendant has forfeited in this second appeal review of this

                      known issue of record by failing to raise it in his direct appeal.”

¶ 21          This argument suffers from numerous flaws. Initially, the State seems to imply that by

       requesting a preliminary Krankel inquiry in his first direct appeal, the defendant has forfeited the

       actual claims of ineffectiveness that underlie that request. If this were the case, then the Krankel

       procedure would be rendered wholly meaningless. Moreover, that the present issue “was known

       to defendant prior to the filing of his direct appeal” is irrelevant. A number of facts pertinent to

       the defendant’s claim—such as the substance of his conversations with counsel—were not on the

       record on his first appeal, thus requiring that a preliminary Krankel inquiry be held to establish

       the necessary record. See Jolly, 2014 IL 117142, ¶ 38.

¶ 22          Next, the State argues that the defendant’s claim is refuted by his own posttrial filings.

       Specifically, it notes that the defendant did not mention McGrath by name in any of his three

       pro se posttrial filings, and never included his allegation that McGrath incited other inmates to

       attack him. A bare claim of ineffectiveness, unsupported by any facts, is sufficient to require the

       circuit court to conduct a preliminary Krankel inquiry. People v. Ayres, 2017 IL 120071, ¶¶ 18-

       21. “[T]he primary purpose of the preliminary inquiry is to give the defendant an opportunity to

       flesh out his claim.” Id. ¶ 20. The defendant’s statements at the preliminary inquiry identifying

       McGrath by name and indicating that McGrath incited other inmates to attack the defendant did

       not contradict any of the defendant’s previous claims. Rather, these statements merely elaborated

       on the defendant’s previous claims—precisely the procedure contemplated by Krankel and its

       progeny.

¶ 23                                            2. Trial Strategy




                                                         7
¶ 24          We next address the State’s argument that the court did not err in finding that the

       defendant failed to show possible neglect of his case because counsel’s decision not to exercise a

       peremptory challenge on McGrath was a matter of trial strategy. Our supreme court has stated

       that the circuit court may decline to appoint new counsel following a preliminary Krankel

       inquiry where the defendant’s claim “pertains only to matters of trial strategy.” E.g., Moore, 207

       Ill. 2d at 78. We recognize that this statement, read most strictly, could imply that any claim

       possibly relating to trial strategy is per se exempt under Krankel. However, we find such a

       reading to be inconsistent with current precedent concerning claims of ineffective assistance of

       counsel based on trial strategy.

¶ 25          The standard under which all claims of ineffective assistance of counsel are analyzed was

       set forth in the seminal case of Strickland v. Washington, 466 U.S. 668 (1984). In establishing

       that standard, the United States Supreme Court cautioned that judicial scrutiny of counsel’s

       performance must be highly deferential. Id. at 689. The Court held: “[A] court must indulge a

       strong presumption that counsel’s conduct falls within the wide range of reasonable professional

       assistance; that is, the defendant must overcome the presumption that, under the circumstances,

       the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v.

       Louisiana, 350 U.S. 91, 101 (1955)). Our own supreme court has reaffirmed and emphasized this

       position on numerous occasions. E.g., People v. Coleman, 183 Ill. 2d 366, 397 (1998) (“[A]

       defendant must overcome the strong presumption that the challenged action or inaction of

       counsel was the product of sound trial strategy and not of incompetence.”); People v. Dupree,

       2018 IL 122037, ¶ 44; People v. Peterson, 2017 IL 120331, ¶ 80 (“[T]he strong presumption that

       counsel’s strategy was sound may be overcome where counsel’s decisions appear to be so




                                                        8
       irrational that no reasonably effective defense attorney in similar circumstances would pursue

       such a strategy.” (citing with approval People v. Lewis, 2015 IL App (1st) 122411, ¶ 85)). 2

¶ 26           To be sure, both the United States and Illinois Supreme Courts have made clear that the

       notion of trial strategy presents a tall hurdle for a defendant raising a claim of ineffective

       assistance of counsel. But neither court has held that matters involving counsel’s trial strategy

       are unavoidably or absolutely exempt from such a claim. Our supreme court’s repeated

       references to overcoming the presumption of sound trial strategy necessarily dictate that that

       presumption can, in fact, be rebutted. See, e.g., People v. Miller, 2013 IL App (1st) 110879, ¶ 84

       (“[D]efendant rebutted the presumption that his counsel’s decision not to attempt to suppress the

       statement constituted trial strategy.”).

¶ 27           As the cases cited above demonstrate, a strict interpretation of our supreme court’s

       statement that the circuit court may decline to appoint new counsel following a Krankel inquiry

       if the defendant’s claim “pertains only to matters of trial strategy” (e.g., Moore, 207 Ill. 2d at 78)

       is untenable. Given that a defendant may, at least potentially, overcome the strong presumption

       of sound trial strategy, a circuit court should not dismiss a claim of ineffectiveness on the bare

       fact that it may relate to trial strategy. As we explained above, Krankel and its progeny simply

       create a procedural framework for the resolution of posttrial claims of ineffectiveness. It would

       be illogical to hold such claims to a more rigorous standard than any other claim of ineffective

       assistance. It would make especially little sense in the context of the preliminary inquiry, where a

       defendant need not actually demonstrate ineffective assistance, but merely show possible neglect

       of the case. See, e.g., People v. Roddis, 2018 IL App (4th) 170605, ¶¶ 97-100 (comparing the

       preliminary Krankel inquiry to the first stage of postconviction proceedings).

               2
               In Lewis, 2015 IL App (1st) 122411, ¶ 85, the First District collected a number of cases in which
       defendants successfully overcame the presumption of sound trial strategy.
                                                           9
¶ 28           In reaching this conclusion, we are mindful of the fact that our supreme court, when

       identifying types of duties performed by counsel that are particularly strategic in nature, often

       uses strong language referring to their susceptibility to ineffectiveness challenges, calling certain

       actions “virtually unchallengeable” (People v. Palmer, 162 Ill. 2d 465, 476 (1994)) or “generally

       immune” (People v. Enis, 194 Ill. 2d 361, 378 (2000)) from ineffectiveness claims. We would

       note that even these cases use conditional language. Further, we are unaware of any case holding

       that claims of ineffectiveness are per se and absolutely barred where they touch on a matter of

       possible trial strategy.

¶ 29           This principle is illustrated in People v. Manning, 241 Ill. 2d 319 (2011), a case in which

       the supreme court considered a claim that counsel had been ineffective for failing to strike a juror

       during voir dire. After repeating that counsel’s strategic decisions are “virtually

       unchallengeable,” the court also pointed out that it had never previously held that counsel’s

       actions during voir dire were subject to scrutiny under the Strickland standard. Id. at 333. Yet,

       the analysis proceeded. The court expressly considered the reasoning of allowing the juror in

       question to remain, and postulated strategic reasons that counsel may have done so. Id. at 335.

       The court concluded:

                       “Under these circumstances, given [the juror’s] conflicting answers regarding his

                       impartiality, we cannot say that counsel’s decision to reserve his two remaining

                       peremptory challenges was unreasonable. Thus, we disagree with defendant that

                       [the juror] was ‘plainly and deeply biased,’ and we conclude that counsel’s

                       actions were a part of his trial strategy and were not deficient under Strickland.”

                       Id. at 336.




                                                        10
¶ 30          As Manning demonstrates, a claim that counsel’s decisions in jury selection amounted to

       ineffective assistance is not wholly immune from review. Accordingly, we find that, under

       certain circumstances, even a claim of ineffective assistance of counsel that potentially relates to

       trial strategy may demonstrate possible neglect of the case, warranting the appointment of

       counsel and further posttrial proceedings.

¶ 31                                    3. Possible Neglect of the Case

¶ 32          Having found that a claim of ineffective assistance of counsel potentially relating to trial

       strategy may demonstrate possible neglect of the case, we consider whether the circuit court’s

       determination that the defendant failed to establish possible neglect of the case was manifestly

       erroneous. In the instant case, the defendant asserted at the preliminary inquiry that a member of

       his jury worked as a correctional officer at the jail in which the defendant himself was detained,

       the Will County Adult Detention Facility (WCADF). Moreover, the defendant claimed that the

       correctional officer, McGrath, worked on the defendant’s “POD,” that the defendant and

       McGrath had engaged in “several confrontations,” and that McGrath told other inmates details of

       the defendant’s case to induce those inmates to harass the defendant. The defendant alleged that

       when he relayed this information to defense counsel, counsel assured the defendant that McGrath

       would be impartial, and that counsel would rather have McGrath on the jury than “ ‘anyone else

       or the venireman who’s a State’s Attorney.’ ”

¶ 33          The primary fact alleged by the defendant is confirmed in the record. That is, the record

       of jury selection clearly shows that McGrath worked as a deputy correctional officer in Will

       County, was seated as an alternate on the defendant’s jury, and eventually was seated on the jury

       proper when another juror became ill. Whether McGrath worked at WCADF or on the




                                                        11
       defendant’s pod is unconfirmed in the trial record. 3 Further, as is to be expected, neither the

       actual extent of the defendant’s relationship with McGrath nor the defendant’s conversations

       with counsel on the subject are on the record.

¶ 34          Of course, the preliminary Krankel inquiry provided the opportunity for counsel to shed

       some light on the defendant’s claims, at least in regard to any conversations between counsel and

       the defendant regarding McGrath. See Moore, 207 Ill. 2d at 78 (“During this [preliminary

       inquiry], some interchange between the trial court and trial counsel regarding the facts and

       circumstances surrounding the allegedly ineffective representation is *** usually necessary in

       assessing what further action, if any, is warranted on a defendant’s claim. Trial counsel may

       simply answer questions and explain the facts and circumstances surrounding the defendant’s

       allegations.”). Indeed, counsel testified at the preliminary inquiry. Troublingly, however, the

       court asked counsel no questions relating to the defendant’s jury claim, and counsel did not

       otherwise offer any explanation. As of now, the defendant’s claims stand unrebutted.

¶ 35          If the defendant’s factual allegations are true, the seating of McGrath on the jury that

       eventually found the defendant guilty shocks the conscience. The claims that McGrath had

       altercations with the defendant in jail and induced other inmates to harass the defendant by

       sharing details of his case demonstrate actual malice and bias. Trial before a biased jury is

       structural error and requires automatic reversal. People v. Thompson, 238 Ill. 2d 598, 610 (2010).

       It is difficult to discern any potential strategy defense counsel might have for allowing a juror

       with demonstrated bias toward his client to serve on a jury.

¶ 36          We make no finding as to the credibility of the defendant’s factual allegations. However,

       given the serious nature of the allegations, the absence of any explanation from defense counsel

              3
               It is unclear if McGrath, as a correctional officer in Will County, must have worked at WCADF.
       We will not assume this to be the case.
                                                         12
       as to the facts and circumstances surrounding the allegations, and the fact that the record shows

       that McGrath was a Will County correctional officer, we hold that the circuit court’s

       determination that the defendant failed to demonstrate possible neglect of the case was

       manifestly erroneous. Accordingly, we find that further proceedings on the defendant’s posttrial

       claims of ineffectiveness are warranted under the circumstances presented in this case.

¶ 37                          B. Failure to Investigate the Defendant’s Mental Health Issues

¶ 38          We next address the defendant’s argument that he showed possible neglect of the case

       based on his claim that defense counsel failed to investigate his mental health issues. Unlike the

       issue concerning McGrath, the circuit court addressed this issue at the preliminary Krankel

       inquiry. Specifically, the court asked defense counsel if he ever believed there was an issue with

       the defendant’s fitness or a proper defense of insanity. Defense counsel replied: “No, Judge. In

       fact, there was a lot of, um, discussions between myself and [the defendant] that indicated the

       opposite.” Also, the defendant’s allegations regarding his history of mental illness were rebutted

       by the PSI, in which the defendant reported that he had never been diagnosed with a mental

       illness. Accordingly, the circuit court’s determination that the defendant failed to show possible

       neglect of his case with regard to this claim was not manifestly erroneous.

¶ 39                                          III. CONCLUSION

¶ 40          The judgment of the circuit court of Will County is reversed. The matter is remanded for

       the appointment of new counsel to represent the defendant on his posttrial claim that defense

       counsel was ineffective for failing to strike McGrath from the jury.

¶ 41          Reversed and remanded.




                                                       13
