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10/24/96 PEOPLE STATE ILLINOIS v. KERRY L. POPE

October 24, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KERRY L. POPE, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Adams County. No. 94CF238. Honorable Mark A. Schuering, Judge Presiding.

Released for Publication October 24, 1996. As Corrected January 3, 1997.

Honorable Robert W. Cook, P.j., Honorable Robert J. Steigmann, J. - Concur, Honorable James A. Knecht, J. - Concur. Presiding Justice Cook delivered the opinion of the court.

The opinion of the court was delivered by: Cook

PRESIDING JUSTICE COOK delivered the opinion of the court:

Following a jury trial, defendant Kerry Pope was convicted of three counts of aggravated criminal sexual assault. Ill. Rev. Stat. 1991, ch. 38, par. 12-14(b)(1), now 720 ILCS 5/12-14(b)(1) (West 1994). During the preparation of the presentence investigation report, defendant submitted a written statement to the probation office. In this statement, defendant essentially alleged that he received ineffective assistance of counsel. At the sentencing hearing, the trial court indicated that it had read defendant's statement, but it conducted no inquiry into the statement's allegations. The court then sentenced defendant to consecutive sentences totalling 80 years' imprisonment. Defendant appeals, contending that the trial court erred in not conducting an inquiry into his allegations of ineffective assistance of counsel. We affirm.

At trial, the evidence established that defendant met A.K.G. sometime in the summer or fall of 1993, and soon thereafter he became a frequent overnight visitor at her Quincy, Illinois, residence. At the time of their meeting, defendant was 32 years old and A.K.G. was 12. Defendant initiated sexual activity with A.K.G., telling her that he intended to marry her when she turned 14. A.K.G. testified that defendant sexually penetrated her numerous times between November 1993 and March 1994, but defendant was charged with only three of these incidents. The first incident occurred sometime in November 1993, in A.K.G.'s Quincy residence, the second occurred in February 1994, while A.K.G. and her family were living temporarily in a hotel, and the third occurred in March 1994, while A.K.G. and defendant were overnight guests in the home of Carol Reed.

Defendant did not testify at trial, but after his conviction, he challenged the State's facts in an unsworn statement that was included in defendant's presentence investigation report. In this statement, defendant expressed dissatisfaction with his appointed counsel. First, defendant alleged that his counsel failed to call witnesses. Defendant asserted he first met A.K.G.'s mother in September 1992, was arrested for an unrelated offense in October 1992, then spent eight months in Illinois and Arkansas jails before returning to Quincy. He continued:

"I lived with a woman, Tammy Thomson, then with an ex[-]girlfriend Lynda Young, then with my little brother, all of which were across town [from A.K.G.]. At no time did I see [A.K.G.] or her family. Not until I moved back in with my parents late last fall 93. All of this could and should have been proven. These witnesses should have been called."

Defendant further alleged that Young could have testified that defendant spent weekends at her Quincy residence, contrary to the State's assertion that defendant was at A.K.G.'s residence on a daily basis.

In addition to criticizing counsel's failure to call witnesses, defendant complained that counsel "never asked the right questions in cross[-]examination." Defendant alleged that he only met twice with his attorney before trial, "at which time I tried to get [counsel] to call my witnesses, which obviously he refused to do. He told me I was a liar and to shut up. Then he told me to screw myself and walked out. When we did talk, he cut me short or twisted my words around." Finally, defendant stated, "I want it on record that I could have proved my case but I was misinformed or not informed at all as to my options and rights by--counsel, and was poorly defended by any standard."

Defense counsel did not file a post-trial motion. At the sentencing hearing, defense counsel stated that he had reviewed the presentence investigation report with defendant, and that there were "obviously some things we don't agree with." Counsel made no clear reference to defendant's allegations of ineffective assistance of counsel, and defendant said nothing on the issue at the hearing. The trial court indicated that it had read defendant's statement, but the court did not inquire about it. The court said, "Although you have alluded to the necessity for others that may have contradicted certain aspects of testimony, I found that the witnesses were in fact credible and that there was proof beyond a reasonable doubt for all three of these offenses." Accordingly, the court imposed consecutive sentences totalling 80 years' imprisonment.

When a pro se defendant raises a post-trial claim of ineffective assistance of counsel, the trial court may, under certain circumstances, appoint new counsel to assist the defendant in the presentation of his claim. People v. Giles, 261 Ill. App. 3d 833, 847, 635 N.E.2d 969, 979, 200 Ill. Dec. 630 (1994); People v. Krankel, 102 Ill. 2d 181, 189, 464 N.E.2d 1045, 1049, 80 Ill. Dec. 62 (1984). The trial court should first conduct an "adequate inquiry" to determine the factual basis for defendant's claims. People v. Johnson, 159 Ill. 2d 97, 125, 636 N.E.2d 485, 497, 201 Ill. Dec. 53 (1994). If the court determines that the claims lack merit or pertain only to matters of trial strategy, then new counsel is unnecessary. Giles, 261 Ill. App. 3d at 847, 635 N.E.2d at 979. If, however, the inquiry reveals trial counsel's possible neglect of the case, then the court should appoint new counsel. Giles, 261 Ill. App. 3d at 847, 635 N.E.2d at 979. The appointed counsel can then "undertake an independent evaluation of the defendant's claim and present the matter to the court from a detached, yet adversarial, position." People v. Jackson, 131 Ill. App. 3d 128, 139, 474 N.E.2d 466, 474, 85 Ill. Dec. 738 (1985). Trial counsel can hardly be expected to argue his own incompetency. People v. Ruiz, 132 Ill. 2d 1, 9, 547 N.E.2d 170, 173, 138 Ill. Dec. 201 (1989).

Defendant contends that because the trial court never conducted an inquiry into his allegations of ineffective assistance of counsel, we must remand for the court to conduct such an inquiry. The trial court could then determine whether the appointment of new counsel is warranted. We disagree.

As a threshold matter, it is not clear that defendant adequately raised the issue of trial counsel's alleged incompetence. Defendant neither filed a pro se motion nor did he ever request appointment of new counsel. However, a filed, formal motion is not always necessary to trigger a trial court's duty to inquire into allegations of ineffective assistance. In People v. Finley, 222 Ill. App. 3d 571, 584 N.E.2d 276, 165 Ill. Dec. 97 (1991), the defendant wrote the trial judge a letter in which he alleged that his trial counsel was ineffective for failing to call specific witnesses who could have contradicted the State's case. The first district concluded that remand was necessary to determine whether appointment of new counsel was warranted because the trial judge failed to give proper consideration to the potentially meritorious claims contained in the letter. Finley, 222 Ill. App. 3d at ...


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