             NOTICE
                                             2016 IL App (5th) 130589
 Decision filed 06/13/16.   The
 text of this decision may be                       NO. 5-13-0589
 changed or corrected prior to
 the filing of a Peti ion for
 Rehearing or the disposition of                      IN THE
 the same.

                                        APPELLATE COURT OF ILLINOIS

                             FIFTH DISTRICT
________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,        )     Appeal from the
                                            )     Circuit Court of
      Plaintiff-Appellee,                   )     Jasper County.
                                            )
v.                                          )     No. 13-CF-8
                                            )
MICHAEL A. SHAMHART,                        )     Honorable
                                            )     S. Gene Schwarm,
      Defendant-Appellant.                  )     Judge, presiding.
________________________________________________________________________

         JUSTICE CATES delivered the judgment of the court, with opinion.
         Justices Goldenhersh and Chapman concurred in the judgment and opinion.

                                                    OPINION

¶1       Following a jury trial, the defendant, Michael A. Shamhart, was found guilty of

unlawful possession of methamphetamine manufacturing material, participation in

methamphetamine                    manufacturing,   and   possession   of   a   substance   containing

methamphetamine. He was sentenced to prison terms of 7 years, 15 years, and 5 years,

respectively, and the sentences were concurrent. On appeal, the defendant contends that

the trial court committed reversible error when it refused to permit him to present

evidence of ineffective assistance of counsel by his trial attorney at a hearing on the

merits of his posttrial motions. For reasons that follow, we vacate the orders of the

                                                          1
circuit court denying the defendant's posttrial motions, and we remand this cause with

directions.

¶2                BACKGROUND AND PROCEDURAL HISTORY

¶3     On January 23, 2013, at approximately 8:39 p.m., a confidential source of Newton

police officer Gregory Coker, who was later identified as Bradley Hazel, participated in a

"controlled buy" of methamphetamine from the defendant at the defendant's residence in

Newton, Illinois. A short time later that evening, Officer Coker obtained a warrant to

search the defendant's home, and Officer Coker and other Newton police officers went to

the defendant's residence to execute the warrant. During the search, officers discovered

some of the "buy money" that was used in the controlled buy, methamphetamine

precursors, and a variety of items associated with the manufacture of methamphetamine.

The defendant was taken into custody that evening.

¶4     On January 24, 2013, the defendant was charged with methamphetamine delivery

(720 ILCS 646/55 (West 2012)), unlawful possession of                  methamphetamine

manufacturing material (720 ILCS 646/30 (West 2012)), and unlawful possession of

methamphetamine precursor (720 ILCS 646/20(a)(2)(A) (West 2012)). A few weeks

later, the State added two counts of aggravated participation in methamphetamine

manufacturing (720 ILCS 646/15(b)(1) (West 2012)) and one count of use of property

(720 ILCS 646/35 (West 2012)).

¶5     The defendant's trial attorney, Ken Gano, filed a motion to quash the search

warrant and to suppress the evidence obtained through the search, and requested a

hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978).            The court heard
                                       2
arguments on the motion and took the matter under submission. A few days later, the

court entered an order denying the motion to quash. The court specifically found that the

motion was not supported by a sworn affidavit or a statement of supporting reasons, that

the motion was not supported by an offer of proof, and that the motion failed to specify

what portions of Officer Coker's warrant affidavit were false, misleading, or based upon a

reckless disregard for the truth. The court concluded that the motion failed to meet any

of the threshold requirements of Franks and was deficient. The court denied the motion

on its face.

¶6     The jury trial commenced on July 8, 2013. On the first day of trial, the State filed

an amended information, amending two of the previously filed counts, adding a new

count, and dismissing other counts. The amended information charged the defendant

with unlawful possession of methamphetamine manufacturing material (720 ILCS 646/30

(West 2012)), participation in methamphetamine manufacturing (720 ILCS 646/15 (West

2012)), and possession of a substance containing methamphetamine (720 ILCS 646/60(b)

(West 2012)). The defendant's attorney did not object to the filing of the amended

information, and the State proceeded to trial on those three charges.

¶7     The State's first witness was Officer Coker, an eight-year veteran of the Newton

police department. Officer Coker testified that on the afternoon of January 23, 2013, he

was approached by a confidential source, Bradley Hazel, who indicated that he could buy

methamphetamine from the defendant. Officer Coker was familiar with the defendant.

Officer Coker testified that based upon Hazel's representations regarding the defendant's

methamphetamine manufacturing activities, he and other Newton police officers arranged
                                          3
for Hazel to make a "controlled buy" at the defendant's residence that evening. Officer

Coker stated that he marked and recorded the serial numbers on six $20 bills, and

provided Hazel with $120 in marked bills. Officer Coker testified that Hazel went into

the defendant's residence and later returned with two baggies, each containing a white

substance. Field tests performed on the white substance in each baggie were positive for

methamphetamine.

¶8     While other officers conducted surveillance of the defendant's house, Officer

Coker and Hazel went to obtain a search warrant. They met with the State's Attorney,

and a sworn warrant application was prepared and presented to Judge Daniel Hartigan.

The application provided the factual basis for the search warrant and described, in detail,

the "controlled buy." The application also specifically stated that "C/S has provided law

enforcement with credible, truthful information in the past in connection with drug

investigations." After considering the warrant application and affidavit, Judge Hartigan

issued a search warrant at 10:30 p.m. that same evening. The warrant directed the

officers to search the defendant's home.       It further directed the officers to seize:

"methamphetamine, methamphetamine precursors, methamphetamine equipment, illicit

drugs, drug paraphernalia, weight scales, plastic baggies, containers commonly

associated with the storage or use of said contraband which have been used in the

commission of, or which constitute evidence of the offenses of any and all violations of

the Methamphetamine Control and Community Protection Act, 720 ILCS 646 et seq."

¶9    Officer Coker testified that he proceeded to the defendant's residence address to

meet with other officers and execute the warrant.       When the officers arrived, they
                                        4
knocked on the defendant's back door and announced they had a search warrant. The

defendant did not immediately open the door, so the officers let themselves in. At that

time, the defendant and his ex-wife, Billie Shamhart, were taken into custody. Officer

Coker testified that several officers assisted in the search of the defendant's house.

During the search, officers discovered three of the marked $20 bills that had been

provided to Hazel for the controlled buy. Officers also discovered a metal grinder, plastic

baggies containing white pills, and various forms of drug paraphernalia, including glass

pipes, syringes, a box of needles, an eyeglass case containing a spoon and a syringe, and

a digital scale hidden inside an iPhone case, among other things. Officers also searched a

safe, which they discovered inside the house. The safe contained two plastic bottles of

liquid, 1.97 grams of cannabis, and two plastic baggies containing white substances

which, based upon field testing, were positive for methamphetamine.

¶ 10    Officer Coker testified that he had received training in, and had prior experience

with, the investigation of methamphetamine manufacturing activities, and that based on

his training and experience, he believed that the defendant had converted his home into a

laboratory to manufacture methamphetamine (meth lab). Officer Coker noted that there

were special hazards posed by the chemicals and the equipment associated with the

manufacture of methamphetamine.        Because of the potential hazards, Special Agent

William Blackburn, an officer with the Illinois State Police, was called in to assist with

the handling and disposal of the meth lab and other hazardous materials found in the

home.


                                            5
¶ 11     During cross-examination, the defendant's trial attorney, Ken Gano (Gano),

attempted to question Officer Coker about his confidential source. Gano indicated that he

wanted to test the credibility and reliability of the confidential source. The State objected

to the inquiry and argued that the issue had been previously resolved when the court

denied the defendant's motion to suppress the search warrant. The court sustained the

objection. Gano then focused his cross-examination on the safe which was discovered at

the defendant's home. Gano asked whether the safe was locked or unlocked when it was

found.    Overall, there was contradictory testimony regarding the safe.        One officer

testified the safe was forced open, maintained as evidence, and secured in the evidence

room, while another indicated it had been destroyed.

¶ 12     Agent Blackburn, an officer with Illinois State Police Meth Response Team, also

testified during the State's case. Agent Blackburn noted that the Meth Response Team is

a specialized unit and that he had received special training in the processing of

methamphetamine labs from the United States Drug Enforcement Agency.                  Agent

Blackburn explained that many of the chemicals used to make methamphetamine are

hazardous and volatile in nature, and, because of that, he often assisted police

departments in Southern Illinois with the disposal of chemicals and equipment used in the

production of methamphetamine. Agent Blackburn stated that he routinely conducts field

tests on such chemicals before disposing of them. Agent Blackburn further testified that

he was called to assist in the disposal of the defendant's meth lab, and that he conducted

field tests on some of the chemicals before disposing of them.            Agent Blackburn

explained that there were different methods for manufacturing methamphetamine. He
                                          6
described the "one-pot" method for manufacturing methamphetamine, noting that

anhydrous ammonia is not one of the chemicals used in the "one-pot" method. Agent

Blackburn testified that he was able to observe the materials and equipment inside the

defendant's home, and that, based upon his observations and his experience, he concluded

that the defendant used the "one-pot" method to manufacture methamphetamine. Agent

Blackburn then explained why the items seized from the defendant's home were an

integral part of the "one-pot" manufacturing process.

¶ 13   On the second day of trial, the State called additional police officers who had

participated in the search to testify about the items seized and to provide a proper chain of

custody. Documentary photographs taken during the search were also admitted into

evidence. The final witness for the State was Aaron Roemer, a forensic scientist with the

Illinois State Police Crime Laboratory. Roemer was qualified as an expert witness and

was allowed to render an opinion that the two baggies containing white powder, which

were delivered to the lab for analysis, contained methamphetamine.

¶ 14   At the conclusion of the State's case, attorney Gano moved for a directed verdict,

which was denied. Gano then notified the court that defendant had decided not to testify

on his own behalf, and the court admonished the defendant regarding his right to do so.

Gano then sought to call Officer Coker as a witness in the defendant's case in order to ask

about the confidential source. The State renewed its objection to the line of inquiry,

again claiming, "[t]hese issues were raised at the Franks motion hearing in pretrial–in the

pretrial evidentiary hearing, and the Court sustained or denied the motion." The court

sustained the State's objection, stating this was impeachment on a collateral issue and not
                                               7
relevant. Gano then called several witnesses who had been in the defendant's home a day

or two before January 23, 2013.        All of these witnesses testified that they saw no

indication that the defendant was engaging in the manufacture of methamphetamine.

Gano called Billie Shamhart, the defendant's ex-wife, as the final witness. Mrs. Shamhart

testified that she did not see any of the paraphernalia seized by the police while

occupying the home on Van Buren Street. The defense then rested.

¶ 15   At the close of the evidence, the jury received instructions from the court and

retired to deliberate. According to the record, the jury returned its verdicts in slightly less

than 30 minutes. The jury found that the defendant was guilty of unlawful possession of

methamphetamine       manufacturing      material,   participation    in   methamphetamine

manufacturing, and possession of a substance containing methamphetamine. The court

accepted the verdicts and scheduled sentencing for August 15, 2013.

¶ 16   On July 26, 2013, attorney Gano filed a motion for judgment notwithstanding the

verdict or, in the alternative, for a new trial. In the motion, the defense claimed that the

jury's verdict was against the manifest weight of the evidence; that the motion court erred

in denying the Franks motion; that the jury pool was tainted because of comments made

by one juror during the voir dire process; and that the trial court erred in limiting the

defendant's ability to cross-examine Officer Coker regarding the circumstances of his

encounter with his confidential source, Bradley Hazel. As to the fourth claim of error,

the defense indicated that it had been prepared to call Hazel to impeach Officer Coker's

testimony, and that the court erred in sustaining the State's objection to this area of

inquiry.
                                              8
¶ 17   On that same date, Gano filed a "Memorandum and Request For Direction." In

this pleading, attorney Gano indicated that during the course of a telephone conference

with the defendant on July 24, 2013, the defendant stated, "You are fired. I want a

different attorney." Gano stated that the conversation ended quite abruptly when the

"phone line went dead," and that he had no further discussions with the defendant. Gano

requested that the court allow him to withdraw as attorney of record or, alternatively,

advise him with regard to his future obligations to the defendant.

¶ 18   The defendant filed a letter with the court, dated July 25, 2013, wherein he asked

the court "for a new attorney do [sic] to the incompetence of my attorney Ken Gano in his

representation throught [sic] my whole trial." In the letter, the defendant also asserted

that Gano failed to offer an adequate defense during trial and failed to object to the State's

"last minute" amendment to the charges lodged against him.

¶ 19   On August 9, 2013, the defendant supplemented his prior letter with a pro se

motion for a new trial. In this motion, the defendant claimed that he was denied effective

assistance of counsel as required by the "6th Amendment to the United States

Constitution."   Attached to the motion were 14 single-spaced, handwritten pages,

authored by the defendant. In these pages, the defendant set forth detailed arguments,

specifying his contentions of error by the trial court, and his claims of ineffective

assistance of his trial attorney, in support of his request for a new trial. Among the many

arguments, the defendant stated that he specifically asked his first attorney to file a

motion to suppress illegally seized evidence, and that this was never done. The defendant

was of the opinion that the safe that was seized from his home had been opened in
                                         9
violation of the fourth amendment, and that a motion to suppress the evidence seized

from the safe should have been filed. The defendant also noted that he had asked his next

court-appointed attorney to file a motion to suppress, a motion for a bill of particulars,

and a motion to dismiss, but "she wouldn't file any of them." He then discussed his

difficulties with his trial counsel, Mr. Gano. The defendant began by claiming, "He

didn't properly file Franks motion it was denied on its face." The defendant also claimed

that Gano did not obtain important information about Bradley Hazel, which could have

been used to attack Hazel's credibility as a confidential source.

¶ 20   In the additional pages of the attachment, the defendant alleged that Judge

Hartigan should have recused himself from the proceedings because Judge Hartigan had

actually represented the defendant when the defendant was a juvenile. The defendant

also claimed that because Judge Hartigan had issued the search warrant, he was no longer

a neutral participant and should not have heard the Franks motion.

¶ 21   During the hearing on August 15, 2013, the court initially entertained Gano's

motion for direction. The court asked Gano whether he was asking to withdraw, noting

that such motion would need to be supported with specific facts pursuant to Rule 1.16 of

the Illinois Rules of Professional Conduct. Ill. R. Prof. Conduct (2010) R. 1.16 (eff. Jan.

1, 2010). After some discussion with the court, Gano stated he believed he had been

discharged by the defendant.      Gano advised the court that he had been unable to

communicate with the defendant, and that the defendant's allegations of ineffective

assistance of trial counsel "may adversely affect my ability to give him my 100 percent."

Gano requested that he be allowed to withdraw as the defendant's counsel. The court
                                        10
denied Gano's motion and asked Gano to speak with the defendant to determine whether

the lines of communication could be reestablished.

¶ 22   On August 23, 2013, Gano filed his formal motion to withdraw. In the first

paragraph of his motion, Gano indicated that the defendant, on two occasions, had

expressed his desire to discharge Gano.       The remaining paragraphs of the motion

explained that the defendant had filed a motion alleging Gano was "incompetent,

rendering further representation strained and difficult." In the motion, Gano made no

admission that his representation of the defendant fell below an objective standard of

reasonableness.

¶ 23   On August 26, 2013, the defendant filed a voluminous packet of documents. On

the first page of the submission, the defendant asked the trial judge to consider granting a

new trial, a new attorney, and a judgment notwithstanding the verdict. The defendant

also proposed a sentencing recommendation. In his papers, the defendant provided a

detailed statement of his claims of error, including the failure of attorney Gano to file a

proper Franks motion and the failure to provide a "neutral magistrate" to preside over the

proceedings in his case. The defendant also attached a three-page, handwritten statement,

entitled "voluntary statement by Bradley W. Hazel." The statement was dated "8-13-13"

and was purportedly authored and signed by Bradley Hazel. In this statement, Hazel

stated that it was Officer Coker who asked Hazel to make a "controlled buy" from the

defendant. Hazel claimed the officer threatened him. Hazel also claimed that he had lied

to police about buying methamphetamine from the defendant, and that Hazel had planted

evidence in the defendant's home. After a complete confession, Hazel indicated that he
                                         11
was writing this statement now because he had tried to hang himself in jail, and the

defendant, who was also incarcerated, called for help, saving Hazel's life.

¶ 24   On September 4, 2013, the court heard Gano's motion to withdraw.             Gano

indicated he would stand on the written motion. Gano told the court, "I think the first

paragraph is sufficient.   The other paragraphs are under the other good causes in

accordance with the statute." The court then indicated "that the motion to withdraw states

a basis for Mr. Gano to withdraw as attorney for Mr. Shamhart," and granted the motion

to withdraw. The court made no specific findings as to what basis it had considered or

why Gano was allowed to withdraw. The court stated that it would appoint a new

attorney for the defendant.     Later that day, the court appointed Lance Freezeland

(Freezeland) to represent the defendant in the posttrial proceedings.

¶ 25   Freezeland first appeared on behalf of defendant on September 12, 2013, for a

scheduling conference. During the conference, the court scheduled hearings on the

pending posttrial motions and set sentencing for November 8, 2013, in order to allow

Freezeland adequate time to meet with the defendant and prepare.

¶ 26   On November 8, 2013, the parties appeared for the hearing on the pending

posttrial motions. Freezeland chose not to file an amended posttrial motion, but rather

proceeded on the posttrial motions that had been filed previously. Freezeland requested

that he be allowed to call the defendant as a witness to give testimony in support of the

posttrial motions. The court then inquired: "You want to submit evidence in support of

your post-trial motions?    Let's discuss that before I allow you to proceed with the

evidence." This prompted a brief discussion between the court and Freezeland. During
                                          12
the discussion, Freezeland explained that the only way he could prove that the

defendant's trial counsel had failed to communicate with the defendant about important

matters in his case was to put the defendant on the witness stand. Freezeland also

referenced other contentions of error raised in the defendant's posttrial motion and stated

that only the defendant could expound further on those contentions. The State objected

to the defense's request to call the defendant as a witness. The State argued that the

errors raised in the defendant's motion were "extraneous to the record," and that the

ineffective assistance of counsel claim was not a matter for a posttrial motion. The court

then made a further inquiry of Freezeland, "And, Mr. Freezeland, let me make sure I

understand. You are basically looking to present evidence in support of ineffective

assistance of counsel?"       Freezeland answered affirmatively.         The court denied

Freezeland's request to have defendant testify. The court then indicated it would take

"judicial notice of what Mr. Shamhart has filed in his own behalf. It is in the court file."

¶ 27   Following the ruling, Freezeland proceeded to argue the Gano posttrial motion and

the defendant's pro se motions, as he explained they were inextricably entwined.

Freezeland straightforwardly stated that Gano improperly filed the Franks motion, and

then made no effort to refile the motion with the proper affidavits and supporting

documents, even after the motion was denied based on facial deficiencies. Freezeland

pointed out that Gano proceeded to trial and attempted to cross-examine the witnesses

regarding the issuance of the search warrant. When the questions were raised regarding

the credibility of the confidential source, the court sustained the State's objections and

thereby prevented Gano from introducing any evidence related to Hazel and the validity
                                         13
of the search warrant. Additionally, Freezeland argued that there was evidence Hazel

was mentally unstable, and that there was now a statement in the court file wherein Hazel

admitted he had lied and "set the defendant up" by planting evidence in the defendant's

home. Freezeland described how he had met with the defendant, and that they had gone

over the 300-plus pages of the record. In doing so, he found himself repeatedly saying,

"Well, that should have been raised at trial."          During his argument to the court,

Freezeland asked:

       "[C]an we get before the court evidence of actual innocence?              Can we give

       [defendant] his real swing? His chance at the plate? Or do we confine ourselves

       to the legal confines of, well, this wasn't raised at trial. That is an issue for appeal.

       And I know that the ineffective assistance is probably best raised by appeal but,

       Judge, there were so many things that just weren't done here. And I find myself

       reading that trial and thinking not only would I have done something different, that

       is not the standard I realize, not that a different counsel does something different,

       but it just felt so far below the level of actually giving him an opportunity before

       this court."

¶ 28   After the attorneys for the State and the defendant had extensively argued their

positions, the court denied the defendant's posttrial motions. In its ruling, the court did

not specifically address any particular motion. It did not identify any particular issue

raised in the motions, except the claim regarding a prospective juror who made comments

during voir dire. As to that contention, the court noted that the prospective juror was

dismissed and did not participate in the trial. The court further noted that there was no
                                            14
motion for mistrial at the time, and that the statements made were not of such import that

they tainted the entire jury pool. The court concluded the hearing on the posttrial motions

and continued the matter for sentencing.

¶ 29   The sentencing hearing was held on November 14, 2013. During the hearing, the

State introduced testimony that the defendant's residence was less than 1000 feet from

three active churches in the community. Additionally, as a factor in aggravation, the

State offered a transcript of testimony from the defendant's ex-wife to prove that she was

pregnant while occupying the home where the methamphetamine lab was located. The

defendant offered the testimony of Lucy Ann Marie Piercefield. Ms. Piercefield testified

that she had known the defendant since he was eight years old. She asked the court "not

to be hard" on the defendant because he never had a chance as a child. The defendant

took the stand to introduce a 1985 psychological evaluation. After considering the

evidence, the presentence report and an addendum thereto, the arguments of counsel, and

a statement made by the defendant, the court sentenced the defendant to concurrent

prison terms of 7 years for unlawful possession of methamphetamine manufacturing

material, 15 years for participation in methamphetamine manufacturing, and 5 years for

possession of a substance containing methamphetamine.

¶ 30                                 ANALYSIS

¶ 31   On appeal, the defendant raises a single issue: Whether the trial court committed

reversible error when it refused to permit the defendant to present evidence of ineffective

assistance of trial counsel at the hearing on the merits of his posttrial motions. Because

the adequacy of the trial court's inquiry into the defendant's allegations of ineffective
                                           15
assistance of trial counsel presents a question of law, our review is de novo. People v.

Vargas, 409 Ill. App. 3d 790, 801, 949 N.E.2d 238, 249 (2011).

¶ 32   The defendant shapes his argument by claiming that the matter before us is related

to the issue raised in People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984). In

Krankel, the defendant filed a pro se posttrial motion wherein he alleged ineffective

assistance of counsel. On review, the Illinois Supreme Court held that the failure to

appoint new counsel to argue the defendant's pro se motion for a new trial was error, and

it remanded the cause for a new hearing on the ineffective assistance of counsel claim.

Krankel, 102 Ill. 2d at 189, 464 N.E.2d at 1049. Since Krankel was decided, the courts

have developed a common law procedure that is triggered when a defendant raises a pro

se posttrial claim of ineffective assistance of trial counsel. See People v. Jolly, 2014 IL

117142, ¶ 29, 25 N.E.3d 1127. Under the rule that has been developed from Krankel and

its progeny, new counsel is not automatically appointed when an ineffective assistance of

counsel claim is raised. Jolly, 2014 IL 117142, ¶ 29; People v. Moore, 207 Ill. 2d 68, 77,

797 N.E.2d 631, 637 (2003).

       "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
                                          16
       pro se claim of ineffective assistance." Moore, 207 Ill. 2d at 77-78, 797 N.E.2d at

       637.

¶ 33   Contrary to the arguments made by the defendant on appeal, the trial court made

no determination regarding the defendant's claims of ineffective assistance of counsel

with regard to Gano. The court simply allowed Gano to withdraw, without making any

finding that Gano's representation fell below an objective standard of reasonableness.

The court then appointed Freezeland to represent the defendant in the posttrial

proceedings. In this case, the defendant was the beneficiary of new counsel, without the

findings that would have been required during a Krankel inquiry. Therefore, the narrow

issue before this court is whether the trial court, after appointing new counsel without

having gone through the Krankel inquiry, erred in failing to grant an evidentiary hearing

on the defendant's posttrial allegations of ineffective assistance of trial counsel.

¶ 34   The record in this case shows that the defendant meticulously itemized his pro se

claims of ineffective assistance of counsel, supporting some of his arguments with legal

citations. In his papers, the defendant continually maintained that the Franks motion had

been denied because it was filed incorrectly. Given the court's findings regarding the

deficiencies in the motion, and the fact that trial counsel did not file an amended motion

following the court's ruling, this allegation has some support in the record. Another

matter, of equal importance, is the handwritten statement purportedly authored by

Bradley Hazel. In this statement, Hazel admits that he lied to the police and planted

evidence that was used to convict the defendant. The record shows that throughout the

course of the proceedings, the defendant sent letters to the court claiming that Hazel's
                                          17
credibility should have been attacked and that a motion to dismiss and/or a motion to

suppress the evidence should have been filed. Nevertheless, the only motion filed was

the defective Franks motion. After reviewing the record, we conclude that even if the

defendant's claims are ultimately found to be without merit, the defendant should have

been afforded the opportunity to specify and support his complaints at a hearing on the

merits of his claims. In this case, the defendant's motions were "precipitously and

prematurely denied." People v. Robinson, 157 Ill. 2d 68, 86, 623 N.E.2d 352, 361

(1993).

¶ 35   Mr. Freezeland not only afforded the defendant a "fresh look" at the evidence, but

he was also willing to openly declare that the defendant's trial counsel failed to

adequately represent the defendant. When Freezeland attempted to introduce evidence

regarding Gano's shortcomings, the court was under the mistaken impression that no

evidence related to the defendant's ineffective assistance of counsel claims could be

introduced during the hearing on the defendant's posttrial motions.

¶ 36   Based on the record, we find that the defendant is entitled to an evidentiary

hearing and a determination of the merits of the defendant's ineffective assistance of

counsel claims. People v. Jackson, 158 Ill. App. 3d 394, 401, 511 N.E.2d 923, 927

(1987). The goal of this proceeding is to allow the trial court to give full consideration to

the defendant's allegations. The court should examine the factual matters underlying the

defendant's claims. If, after a hearing, the court finds that the defendant did not receive

effective assistance of counsel, based upon one or more of counsel's alleged failures to

present the issues claimed in all of the pending posttrial motions, then the court shall
                                           18
order a new trial. Jackson, 158 Ill. App. 3d at 402, 511 N.E.2d at 928. If, however, the

court determines that the allegations amount to trial strategy and that the defendant

received effective assistance of counsel, the court shall deny a new trial and leave

standing the defendant's convictions and sentences. Jackson, 158 Ill. App. 3d at 402, 511

N.E.2d at 928. Regardless of the court's determination, we anticipate that it will support

its ruling with specific findings so that the record is complete.

¶ 37   In light of our remand, we believe it necessary to briefly address the concept of

judicial notice. During the hearing on the posttrial motions, the court indicated it would

take "judicial notice" of "what Mr. Shamhart has filed in his own hand or filed in his own

behalf." In its brief, the defendant argues that this was an inadequate substitute for an

evidentiary hearing on his posttrial motions.       In its brief, the State posits that the

defendant:

       "likens the post-trial motion hearing here to a post-Krankel hearing where new

       counsel is presenting a defendant's claims of trial counsel's alleged ineffectiveness.

       Although there is certainly no quarrel with the proposition that a court should

       allow a defendant to present evidence in support of a claim of ineffective

       assistance of counsel, even if that evidence is de hors the record, it appears from

       the record here that whatever the defendant wanted to present was, in fact,

       admitted into evidence."

¶ 38   The State then argues that because the court took judicial notice of the documents

filed by the defendant in support of his pro se motions, including the statement by


                                             19
Bradley Hazel, that "the defendant's articulated evidentiary goals were achieved by way

of judicial notice." We disagree.

¶ 39   Rule 201 of the Illinois Rules of Evidence (Ill. R. Evid. 201 (eff. Jan. 1, 2011))

governs those matters subject to judicial notice. Specifically, Rule 201(b) requires that

"[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either

(1) generally known within the territorial jurisdiction of the trial court or (2) capable of

accurate and ready determination by resort to sources whose accuracy cannot reasonably

be questioned." Ill. R. Evid. 201(b) (eff. Jan. 1, 2011). Here, the documents filed by the

defendant raised a multitude of issues, including claims that the defendant was not

adequately informed of certain matters by trial counsel, that the defendant had requested,

on numerous occasions, that certain motions be filed on his behalf, that Hazel's

background was not adequately investigated, and that Hazel had submitted his own

statement admitting he planted evidence in the defendant's home.             Indeed, attorney

Freezeland's arguments supported many of the allegations. In light of the defendant's

allegations, we do not believe the State would stand idly by and have no response,

thereby conceding that the defendant's allegations were true. In this case, the factual

allegations made by the defendant were in dispute, and, therefore, were not proper

subjects for judicial notice. The court could have taken notice that the defendant had

filed documents, but it could not have taken judicial notice of the content of the

documents, as that content was disputed. Certainly, had the court taken judicial notice of

the contents, it would have had to grant a new trial.


                                              20
¶ 40                               CONCLUSION

¶ 41   In conclusion, the trial court conducted no inquiry of any sort into the defendant's

allegations of ineffective assistance of counsel. Instead, the court concluded that the

defendant's claim of ineffective assistance of counsel could be resolved by the

appointment of different counsel on appeal. We conclude this was error. The court

should have allowed the defendant an evidentiary hearing on the defendant's posttrial

motions in order to allow the court the opportunity to fully investigate the defendant's

claims.

¶ 42   For the reasons stated, we hereby vacate the circuit court's orders denying the

motion for new trial or judgment notwithstanding the verdict filed by Gano, and the

defendant's pro se posttrial motions, and we remand this cause for an evidentiary hearing

on the pending posttrial motions. The defendant, upon timely request, shall be allowed to

file an amended posttrial motion, and the hearing on the posttrial motions shall proceed in

a manner consistent with this opinion.



¶ 43   Orders vacated; remanded with directions.




                                            21
                                   2016 IL App (5th) 130589

                                        NO. 5-13-0589

                                             IN THE

                               APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,      )     Appeal from the
                                          )     Circuit Court of
      Plaintiff-Appellee,                 )     Jasper County.
                                          )
v.                                        )     No. 13-CF-8
                                          )
MICHAEL A. SHAMHART,                      )     Honorable
                                          )     S. Gene Schwarm,
      Defendant-Appellant.                )     Judge, presiding.
______________________________________________________________________________

Opinion Filed:          June 13, 2016
______________________________________________________________________________

Justices:           Honorable Judy L. Cates, J.

                  Honorable Richard P. Goldenhersh, J., and
                  Honorable Melissa A. Chapman, J.,
                  Concur
______________________________________________________________________________

Attorneys         Michael J. Pelletier, State Appellate Defender, Ellen J. Curry,
for               Deputy Defender, Richard J. Whitney, Assistant Appellate Defender,
Appellant         Office of the State Appellate Defender, Fifth Judicial District, 909
                  Water Tower Circle, Mt. Vernon, IL 62864
______________________________________________________________________________

Attorneys         Hon. Chad Miller, State's Attorney, Jasper County Courthouse, 100
for               West Jourdan, Newton, IL 62448; Patrick Delfino, Director, Stephen
Appellee          E. Norris, Deputy Director, Patrick D. Daly, Staff Attorney, Office of
                  the State's Attorneys Appellate Prosecutor, Fifth District Office, 730 E.
                  Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864
______________________________________________________________________________
