Modified upon denial of rehearing January 28, 2015.
Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of McLean County, the Hon. Scott D. Drazewski, Judge, presiding.
Reversed and remanded with instructions.
Held The common law developed from the 1984 Krankel decision provides that a pro se posttrial claim of ineffective trial assistance calls for appointment of new counsel if a factual inquiry shows possible neglect, but not if the claim lacks merit or pertains only to trial strategy; and, because new counsel is not appointed at this stage, prosecutorial participation, if any, should be only de minimis, and adversarial participation by the State against a pro se defendant called for the remand of a cocaine case for a new preliminary Krankel hearing without such participation and before a different judge.
Michael J. Pelletier, State Appellate Defender, Karen Munoz and Jacqueline L. Bullard, Deputy Defenders, and Martin J. Ryan, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.
Lisa Madigan, Attorney General, of Springfield (Carolyn E. Shapiro, Solicitor General, and Michael M. Glick and Erica Seyburn, Assistant Attorneys General, of Chicago, of counsel), for the People.
JUSTICE KILBRIDE delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.
[¶1] This case arises in the context of a preliminary inquiry into a defendant's pro se posttrial allegations of ineffective assistance of trial counsel pursuant to this court's decision in People v. Krankel, 102 Ill.2d 181, 464 N.E.2d 1045, 80 Ill.Dec. 62 (1984). More specifically, this appeal requires us to resolve a conflict in the appellate court on the appropriate treatment of a circuit court's decision to allow the State's adversarial participation in a preliminary Krankel inquiry. The State concedes that the circuit court's decision to allow its adversarial participation is erroneous.
[¶2] Here, defendant, John Willie Jolly, filed a pro se posttrial motion alleging ineffective assistance of trial counsel. Ultimately, the circuit court of McLean County conducted a preliminary Krankel inquiry on defendant's claims. In relevant part, the circuit court erroneously permitted the State to participate in an adversarial manner and relied on matters outside the record during that inquiry.
[¶3] On direct appeal, the appellate court affirmed the trial court's denial of defendant's posttrial motion, concluding that the trial court's errors were harmless beyond a reasonable doubt. 2013 IL App. (4th) 120981, 999 N.E.2d 735, 376 Ill.Dec. 560. For the reasons that follow, we reverse and remand.
[¶5] In 2010, defendant was charged with unlawful delivery of a controlled substance. At his jury trial in the circuit court of McLean County, the State's evidence consisted
largely of the testimony of Robbie Gunn, a 45-year-old confidential informant. Gunn, a self-admitted drug addict, had three felony convictions for delivery of a controlled substance. In June 2009, a Bloomington police detective arrested Gunn for selling illegal drugs. In exchange for the State's agreement to dismiss that charge and an unrelated misdemeanor drug charge, Gunn agreed to act as a confidential informant for controlled buys.
[¶6] On March 18, 2010, Gunn arranged to buy cocaine from defendant, whom Gunn knew as " Bud." Gunn explained that he had dealt with defendant on multiple prior occasions, and he recognized defendant's voice and appearance. At the direction of a police detective, Gunn called defendant to purchase cocaine. Gunn agreed to purchase $50 worth of cocaine from defendant at their " normal spot" on Mulberry Street. Defendant arrived at the agreed upon location in a burgundy car, and Gunn purchased the cocaine through the passenger window of defendant's car. On cross-examination, Gunn explained that he did not wear a surveillance wire during the transaction, and he used his own cell phone to call defendant. Gunn admitted that working as a confidential informant was his only source of income during that time period.
[¶7] The State also presented the testimony of the police officers involved in the operation. One officer observed defendant leave his residence at 1:41 p.m. in a car matching Gunn's description. Shortly thereafter, at 1:47 p.m., a second officer saw defendant arrive in the vehicle, and then saw Gunn briefly lean into the passenger window. After the sale was complete, police officers attempted to stop defendant's vehicle, but defendant drove away. The officers pursued defendant in unmarked squad cars with their lights and sirens activated. As defendant fled in his vehicle, the pursuing officers saw defendant throw out paper.
[¶8] Police officers ended the vehicle pursuit for reasons of public safety, but they successfully apprehended defendant about 10 or 15 minutes later when another officer observed defendant exit his parked car. Defendant possessed a cell phone with a number matching the one called by Gunn. Officers also recovered the paper thrown from defendant's vehicle, and discovered that it was torn United States paper currency. Although the damaged currency could not be conclusively matched, the recovered pieces with partial serial numbers matched with numbers on the prerecorded currency that law enforcement provided to Gunn for the controlled buy. The parties stipulated that the substance that Gunn purchased from defendant weighed 0.1 gram and contained cocaine.
[¶9] Defendant did not present any evidence. Following closing arguments, the jury found defendant guilty of delivery of a controlled substance. The circuit court sentenced defendant to 16 years' imprisonment as a Class X offender, based on his prior felony convictions.
[¶10] On October 25, 2010, defendant filed a pro se motion, titled " Motion to Reduce Sentence." In addition to challenging his sentence, defendant challenged the effectiveness of his trial counsel. Specifically, defendant argued that his trial counsel was ineffective because counsel failed to: (1) move to reduce defendant's bond; (2) obtain defendant's consent before waiving his right to a speedy trial; (3) appear in court to represent defendant during one or more pretrial hearings; (4) provide defendant access to discovery materials; (5) ...