Appeal from the Circuit Court of Cook County. The Honorable Mary Maxwell Thomas, Judge Presiding.
Released for Publication June 7, 1994. Petition for Leave to Appeal Denied October 6, 1994.
The opinion of the court was delivered by: Rakowski
JUSTICE RAKOWSKI delivered the opinion of the court:
Following a jury trial, defendant, Ronald Parsons, was found guilty of possession of a controlled substance with intent to deliver and sentenced to twelve years in prison, three years mandatory supervised release and a fine of $40,000. Defendant subsequently appealed his conviction, and on December 6, 1991, this court issued its opinion ( People v. Parsons (1991), 222 Ill. App. 3d 823, 584 N.E.2d 442, 165 Ill. Dec. 263.) (Parsons I), remanding the case to the trial court for a hearing to determine whether trial counsel's failure to call a witness constituted trial strategy or neglect.
On March 30, 1992, a remand hearing was held before the trial court. At the hearing, the court asked trial counsel to comment on whether he had interviewed the witness and his reasons for not calling him. The trial court then concluded that trial counsel's failure to call the witness was a matter of trial strategy. This appeal followed. The issues on appeal are: (1) whether the trial court's decision to deny defendant's privately retained counsel leave to file a supplemental appearance, and memorandum of law on remand and not allow counsel to address the court or present oral argument, denied defendant counsel of his choice and a fair hearing; (2) whether the trial court erred in not making a proper inquiry of defense counsel as directed by the order of this court in the manner mandated by People v. Krankel (1984), 102 Ill. 2d 181, 464 N.E.2d 1045, 80 Ill. Dec. 62; and (3) whether the trial court erred in its finding that trial counsel's omissions were trial strategy.
In Parsons I we remanded the case to the trial court for a hearing to determine trial counsel's reasons for not calling the informant, Ronald Nemerow. Our ruling was based on defendant's statement that trial counsel had failed to interview the witness, defendant's wife's comment that the informant told her he had dropped cocaine in defendant's car, and the existence of a written statement from the informant, whose contents were unknown to the court but which may have been helpful. We concluded that the record was not clear as to whether trial counsel's decision not to call the witness was neglect or trial strategy and whether trial counsel ever interviewed the witness. In remanding the case for clarification of this issue, we stated that:
"In holding as we do, we emphasize that we are not remanding for a full evidentiary hearing and appointment of counsel on the issue of trial counsel's incompetence. Rather, we remand only for the purpose of the interchange mandated by Jackson [(1985), 131 Ill. App. 3d 128, 474 N.E.2d 466, 85 Ill. Dec. 738] and Nitz ((1991), 143 Ill. 2d 82, 572 N.E.2d 895, 157 Ill. Dec. 431]. If, for example, defendant's trial counsel indicates to the court that Nemerow was in fact interviewed and that counsel determined that Nemerow's testimony would not be helpful to defendant, then the matter would clearly be one of trial strategy and defendant's informal pro se motion would properly be denied." ( Parsons, 222 Ill. App. 3d at 831.)
At the hearing, the trial court stated that the purpose was to determine whether Nemerow was interviewed and what trial counsel's reason was for not presenting him as a witness at the trial. Trial counsel was then asked to respond to the questions raised by this court in Parsons I. Trial counsel informed the court that while the trial was in progress he interviewed Nemerow. During the interview Nemerow informed trial counsel that, if called as a witness he would not admit to being in possession of cocaine while in defendant's car. Therefore, trial counsel decided not to call him as a witness for the defense.
Also attending the remand hearing was defendant's new privately retained counsel (Zisook). The court then asked defendant if he would like to make a statement. After defendant's statement, Zisook requested leave to address the court. The trial court then stated:
"Well I'll tell you, Mr. Zisook, I that it's out of place. I understand that you've been very faithful in coming here but my understanding is that -- as the Court that is indicated that this is not for an evidentiary hearing and appointment of counsel. It's only for the purpose of determining whether Nemerow was interviewed and whether counsel determined that his testimony would not be helpful to the defendant."
Then Zisook stated that he had a motion pending to file a supplemental appearance, that defendant had asked Zisook to represent him at that proceeding, and that Zisook had facts that he would like to bring to the court's attention. The court responded that its interpretation of the opinion was that it was only directed to have a "colloquy" with trial counsel and possibly defendant which had already been done. The trial court then concluded that based on the statements of trial counsel and defendant, the decision not to call Nemerow was a decision of trial strategy. Zisook attempted to pursue the matter further and stated that he had requested leave to file a remand memorandum and Nemerow's affidavit. The trial court denied Zisook's request stating that most of the content of the affidavit had already been addressed by the appellate court. The trial court stated that it was only going to deal with the sole issue that the appellate court gave it to address and that having addressed that issue, the trial court's participation in the case was concluded.
Defendant first contends that the trial court on remand denied him a fair hearing and counsel of his choice by denying defendant's privately retained counsel leave to file a supplemental appearance, memorandum of law and by not allowing counsel to present oral argument or otherwise address the court at the remand hearing. Defendant argues that his privately retained counsel should have been allowed to represent him at the remand hearing because there was an inherent conflict in trial counsel representing defendant on defendant's ineffective assistance of counsel claim. Defendant further argues that he filed an affidavit with the court stating that he had retained private counsel rather than trial counsel to represent him on remand. Defendant claims that by denying his private counsel leave to file a memorandum of law or to address the court on defendant's behalf, the court has denied him effective representation as well as a voice in the hearing through which he could make a meaningful argument as to whether trial counsel's omissions were trial strategy or ineffective representation.
While one may argue that a better course of action would have been to allow counsel to appear and argue, the question is whether it is reversible error not to do so. We conclude that it was not, where the trial court complied with the remand order and conducted an evidentiary hearing as required by Jackson and Nitz. The Parsons I mandate specifically stated that it was not remanding for a full evidentiary hearing and appointment of counsel on the issue of trial counsel's incompetence. It was this mandate which the trial court was following when it denied defendant's private counsel leave to ...