Appeal from the Circuit Court of Lake County. No. 11-CF-1657. Honorable James K. Booras, Judge, Presiding.
Where defendant was convicted of violating an order of protection entered for his former wife by coming within 500 feet of her and by calling her telephone, the trial court's order denying defendant's pro se claim of ineffective assistance of counsel was vacated and the cause was remanded for a new preliminary hearing pursuant to Krankel before a different judge, since the proceeding was allowed to become an adversarial hearing not contemplated by Krankel when the State's participation required defendant to represent himself as to each of his claims against both defense counsel and the State and that error would not be deemed harmless.
Thomas A. Lilien and Jessica Wynne Arizo, both of State Appellate Defender's Office, of Elgin, for appellant.
Michael G. Nerheim, State's Attorney, of Waukegan (Lawrence M. Bauer and Matthew J. Schmidt, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE BIRKETT delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Hutchinson concurred in the judgment and opinion.
[¶1] Following a jury trial, defendant, Otis B. Boose, was found guilty of two counts of unlawful violation of an order of protection (720 ILCS 5/12-30(a)(1) (West 2010)) and was sentenced to an extended term of four years' imprisonment. Defendant appeals, arguing that he was deprived of a fair preliminary inquiry into his pro se claims of ineffective assistance of trial counsel, as required under People v. Krankel, 102 Ill.2d 181, 464 N.E.2d 1045, 80 Ill.Dec. 62 (1984), where the State's participation in the hearing rendered the hearing adversarial. For the reasons that follow, we vacate and remand.
[¶2] I. BACKGROUND
[¶3] Defendant was charged with two counts of unlawful violation of an order of protection (720 ILCS 5/12-30(a)(1) (West 2010)) after having been previously convicted of domestic battery (720 ILCS 5/12-3.2 (West 2010)). Both counts alleged that defendant had previously been served with an order of protection naming Dorian Davis as the protected party. Count I alleged that defendant violated the order of protection in that he came within 500 feet of Davis. Count II alleged that defendant violated the order of protection in that he had contact with Davis.
[¶4] At defendant's jury trial, Davis testified that defendant was her ex-husband. They had been married for 17 years prior to their divorce on May 10, 2011, and they had two children. Davis obtained the order of protection against defendant in April 2010. On May 24, 2011, defendant telephoned Davis on her cell phone and
asked if he could come over to see their children. Davis told him that he could not come over. Davis admitted that her cell phone showed that a call had been subsequently placed from her phone to defendant's phone. According to Davis, it was an accidental call. Davis thought that one of her grandchildren touched the screen and dialed defendant back.
[¶5] Davis testified that defendant came to her house at 8:20 p.m. that evening and entered through an unlocked door. He told her that he wanted to talk to her and to find out if the children needed anything to eat. She said no and asked him to leave. He refused to leave, despite being asked to leave several times, and stood less than two feet away from her. Davis could smell beer on defendant's breath. She looked for her cell phone, but she could not find it, so she left the house and drove to her niece's house to call the police. After calling the police and telling them that defendant was at her house, she returned home and saw that defendant was still there. She told defendant that she had called the police and that he needed to leave. Defendant cursed at Davis and began to exit her home. At that point, the police arrived and arrested him.
[¶6] Davis further testified that, as a part of the order of protection, defendant was to give child support payments to his sister, Marilyn Boose, and then Marilyn was to give the payments to Davis. Defendant was not allowed to give money directly to Davis.
[¶7] North Chicago police officer Carl Sturt testified that, when he arrived at Davis's home, he saw defendant standing at the bottom of the stairs that led up to the home. Defendant told Sturt that he was there to pay child support and that Davis had called him and asked him to come over. Davis showed Sturt court documents that indicated that defendant was to give the child support payments to Marilyn. Sturt looked at defendant's phone and confirmed that defendant had placed a call to Davis, which had lasted approximately one minute. He also saw that there had been a phone call from Davis to defendant, which had lasted approximately five seconds. Sturt asked Davis about the call placed to defendant, and Davis explained that it had been a misdial.
[¶8] Following closing arguments, the jury found defendant guilty of both counts of unlawful violation of an order of protection.
[¶9] Prior to sentencing, defendant filed a pro se " Motion to Reduce Sentence," wherein he claimed, inter alia, that defense counsel did not represent him adequately. The trial court read the motion, discussed a few of the issues, and then stated that, due to time constraints, it would conduct a Krankel hearing at a later date--prior to the hearing on any posttrial motions. Thereafter, defense counsel filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. At the next court date, the trial court heard and denied the motion filed by defense counsel without addressing defendant's pro se challenge to the adequacy of counsel's representation. Thereafter, the trial court sentenced defendant to four years in prison. Following the denial of a motion to reconsider defendant's sentence filed by defense counsel, defendant appealed.
[¶10] On appeal, defendant argued that the trial court erred in failing to inquire into his pro se allegations of ineffectiveness, as required by Krankel. People v. Boose, 2013 IL App. (2d) 111276-U (summary order). The State confessed error, and we remanded. Id.
[¶11] At the hearing on remand, held before a different judge, defendant presented
his allegations that defense counsel was ineffective. Defendant argued that defense counsel (1) failed to submit certain relevant evidence, such as a " CD," which both the State and defense counsel knew could have exonerated defendant, and an irate phone message from Davis, which would have shown that she wanted her child support payment; (2) failed to subpoena certain witnesses on his behalf, who would have corroborated defendant's claim that Davis had called him; (3) failed to argue that the State did not meet its burden of proving that defendant inflicted bodily harm; (4) was unprofessional, in that she verbally attacked the State when the State mentioned that defendant's children did not like him; (5) failed to challenge certain potential jurors during jury selection; (6) failed to move to dismiss on speedy-trial grounds; (7) failed to enforce a stay that had been granted to defendant; (8) failed to inform the court of " vindictiveness by the State" ; and (9) tampered with the order of protection.
[¶12] As the trial court allowed defendant to argue his points, it periodically interjected and asked him for additional information. When the speedy-trial issue was mentioned, the court asked its clerk to review the file and determine what had happened. The clerk reviewed the filings and then asked the State whether a motion to dismiss had been filed. The State explained that defendant was brought into custody on May 24, 2011, and that on June 20, 2011, defense counsel filed a speedy-trial demand nunc pro tunc to May 25, 2011. The court asked defense counsel if she had filed a motion to dismiss, and she stated that she had never filed one, because there were no grounds. The court asked the State: " [D]o you confirm that?" The following transpired:
" [THE STATE]: There were no grounds. The Defendant's first trial date out of the box from his arraignment date was 6/24, June 24th. He was arrested on May 24th. On 6/20 is when speedy trial was filed; and ...