Appeal from the Circuit Court OF ILLINOIS, of De Kalb County. No. 06-CF-268 Honorable Robbin J. Stuckert, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Jorgensen
PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices McLaren and Hudson concurred in the judgment and opinion.
¶ 1 Defendant, Brandon A. Washington, appeals from his conviction of attempted first-degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2008)). He asserts that we should reverse because the court failed to follow the rule derived from People v. Krankel, 102 Ill. 2d 181 (1984), which imposes a duty on the trial court to inquire into the validity of pro se posttrial claims of ineffective assistance of counsel and, in some circumstances, appoint counsel to aid the defendant with such claims. The State responds that, under the rule in People v. Jocko, 239 Ill. 2d 87 (2010), the court has no duty to inquire when a defendant makes a pretrial complaint about counsel's performance. We hold that, under Jocko, the court's duty before trial is limited to determining whether a defendant's complaint about counsel's performance falls within an exception to the prejudice requirement of Strickland v. Washington, 466 U.S. 668 (1984), and, if it does not fall within an exception, the court is not obligated to apply Krankel before trial. Here, the court made sufficient inquiry to determine that defendant's complaint did not fall within any exception to the prejudice requirement; no error occurred. Moreover, nothing in the claims called for the court to re-examine them after the trial. We therefore affirm defendant's conviction.
¶ 3 On May 27, 2009, the State charged defendant by complaint with attempted first-degree murder and aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2008)). Two days later, the court appointed a private attorney to represent defendant. Counsel promptly filed a speedy-trial demand and a motion for discovery. On July 2, 2009, counsel asked for "a fairly long continuance" on the basis that defendant was imprisoned on other charges. On September 11, 2009, a grand jury indicted defendant; as subsequently amended on July 23, 2010, the indictment contained six counts, including the two already listed. At a mid-September court date, counsel told the court that the Illinois Department of Corrections was scheduled to release defendant in about 90 days. On that basis, the court gave him a status date of March 25, 2010.
¶ 4 Defendant did not appear at that status date; he was no longer in custody. As of April 1, 2010, he was in jail, having been arrested on a new warrant.
¶ 5 On May 25, 2010, defendant filed a pro se motion asserting that counsel was ineffective because he failed to hold the State to the 30-day deadline of section 109-3.1(b) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/109-3.1(b) (West 2008)). That section requires that, within 30 days of being taken into custody, a felony defendant either be indicted or receive a preliminary examination. Failing that, a defendant can move for dismissal of the complaint under section 114-1(a)(11) of the Code (725 ILCS 5/114-1(a)(11) (West 2008)). Dismissal under section 114-1(a)(11) is not a bar to the State's refiling of the charges. 725 ILCS 5/114-1(e) (West 2008). Defendant also alleged that counsel had failed to arrange for him to be writted in for a July 2, 2009, status date that occurred while defendant was serving an earlier-imposed sentence. Nothing occurred on that date, but, in his motion, defendant objected to the further continuance of his case. Finally, he asserted that counsel had not shown him any of the material that the State had produced in discovery.
¶ 6 On May 27, 2010, counsel apologized to defendant for not having been to see him; counsel was under the misapprehension that defendant was jailed in another county. The court told counsel and the State that defendant had filed the pro se motion, and counsel responded by asking the court to continue the matter so that he and defendant could "talk about it." The court said that, because of its schedule, a continuance would have to be for more than a week. Defendant told the court that he did not want any more continuances. Counsel then asked for a trial date; the court set a date of August 9, 2010. No further mention was made of defendant's motion. Defendant later agreed personally to a continuance of slightly more than a month; this was after the court agreed to the joinder of this case with another one stemming from the same shooting.
¶ 7 Defendant had a jury trial that began on September 13, 2010. The victim of the shooting, Jason Johnson, testified. He identified defendant as the person who had shot him while he was in a group of people gathered in a parking lot. Defendant said something disrespectful, Johnson tried to deflect it, defendant left, and a few minutes later he returned and shot Johnson in the face. Johnson had seen defendant perhaps twice before the shooting, but did not know him by name. He identified defendant in a photo lineup while he was hospitalized with the gunshot wound. Johnson had been at a party before he went out and met the group. He had drunk what he described as "two cups" of vodka during the party. When he was shot, the alcohol was affecting him, but he did not think that he was drunk.
¶ 8 Miguel Espinoza testified that a friend had received a text message that there was about to be a fight nearby. He found a group of people, among whom was defendant, whom he knew. He saw defendant lift his right hand and then heard a "pow." People scattered, and he ran away. He later identified defendant in a photo lineup.
¶ 9 A De Kalb police officer testified that, after witnesses had identified defendant in the lineups, the police learned that defendant had been seen in Aurora. When the police approached defendant in Aurora, he fled on foot, but was taken into custody.
¶ 10 Jessica Contreras, the mother of defendant's child, testified that she went to a laundromat on the afternoon after the shooting to give defendant's child to defendant's mother, Sophia Thomas. While she was talking with Thomas, defendant came in acting nervous and saying that "the cops" were after him. He said that he had shot and possibly killed someone. Jessica's aunt, Martha Contreras, who worked in the laundromat and was present when defendant came in, gave testimony confirming that defendant had said that he had shot someone.
¶ 11 After the State rested, the defense presented the testimony of two witnesses. Thomas testified that, on the afternoon after the shooting, she went to the laundromat with defendant. She was present for all of defendant's conversation with Jessica. She did not hear ...