Court of Appeals of Illinois, First District, Second Division
from the Circuit Court of Cook County. No. 14 CR 10019 The
Honorable Charles P. Burns, Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court, with
opinion. Presiding Justice Neville and Justice Mason
concurred in the judgment and opinion.
1 Deontae Curry acted as the getaway driver, while some of
his associates robbed a video game store and used pepper
spray to incapacitate the store clerk. Curry was convicted of
armed robbery (on an accountability theory) and sentenced to
12 years of imprisonment.
2 At a posttrial hearing, Curry's counsel told the trial
court that Curry alleged that counsel was ineffective for
failing to move to suppress Curry's statement to police
based on Miranda v. Arizona, 384 U.S. 436 (1966).
The trial court did not ask any further questions of Curry or
his counsel to discern the claim's factual basis, so we
remand for an adequate preliminary inquiry. We reject,
however, Curry's request for a new sentencing hearing on
the grounds that he was guilty of robbery, but not armed
robbery, because we find that the pepper spray used on the
store clerk was a "dangerous weapon."
4 As Alonzo Mitchell worked behind the counter at a Game Stop
store, three men entered wearing hooded sweatshirts. One man
approached the counter and sprayed Mitchell with pepper
spray, another man went behind the counter and tackled
Mitchell, and the first man sprayed Mitchell again. The men
took Mitchell's store keys and stole several video game
5 Meanwhile, a coworker who had been hiding in the
store's break room called police. A nearby police officer
heard the radio call and saw individuals come out of the
store and get into a silver Pontiac. The officer pursued the
Pontiac, which was later found unoccupied and parked on a
residential street. The backseat and trunk of the Pontiac
contained several video game systems, as well as
Mitchell's store keys. On the sidewalk nearby lay a
hooded sweatshirt and a can of pepper spray. The car's
registration revealed that a woman owned the car; she gave
police the name of a potential suspect, Terry Johnson.
6 Johnson told police that he and some friends robbed the
Game Stop store while Deontae Curry acted as getaway driver
in the silver Pontiac. Curry told police that his friends had
planned only to shoplift while he waited in the car.
7 The trial court found Curry guilty (under an accountability
theory) of armed robbery, with the pepper spray being a
"dangerous weapon." Curry's counsel then filed
a motion for a new trial. During argument, counsel mentioned
that Curry wanted to raise a claim of ineffective assistance
of counsel: "There was not a motion to suppress and my
client wishes to state that it was an error for-to fail to
file a motion with respect to that statement." The trial
court asked, "Based on what?" Counsel responded,
"Based on Miranda versus Arizona." The
trial court asked no other questions about the issue, either
to Curry or his counsel; found credible the police
officer's testimony that Curry had been advised of his
rights before making a statement; and stated that it would
not have ruled differently if a motion had been filed. Curry
received a prison sentence of 12 years.
9 Inadequate Krankel Inquiry
10 Curry argues that the trial court erred in its inquiry
into his posttrial claim of ineffective assistance under
People v. Krankel, 102 Ill.2d 181 (1984). When a
defendant makes a claim of ineffective assistance of counsel,
either orally or in writing, the trial court must address the
claim so as to potentially limit the issues on appeal.
People v. Willis, 2016 IL App (1st) 142346, ¶
17. The trial court's first step involves an inquiry into
the factual basis underlying the claim. People v.
Ayres, 2017 IL 120071, ¶ 11 (quoting People v.
Moore, 207 Ill.2d 68, 79 (2003)). To accomplish this,
the trial court may ask trial counsel about the facts
underlying the claim; discuss the claim with the defendant;
or base its evaluation on its own knowledge of counsel's
trial performance. People v. Jolly, 2014 IL 117142,
¶ 30. Whether the trial court conducted an adequate
preliminary inquiry presents a question of law we review
de novo. Id. ¶ 28.
11 Curry's counsel offered an elementary description of
the alleged ineffectiveness: failure to move to suppress his
statement. The trial court asked just one question as to the
basis of the claim, and Curry's counsel named
Miranda without elaboration. The trial court did not
ask any questions underlying the claim before immediately
ruling. This falls far short of " 'determin[ing] the
factual basis of the claim.' " Ayres, 2017
IL 120071, ¶ 11 (quoting People v. Banks, 237
Ill.2d 154, 213 (2010)); cf. Willis, 2016 IL App
(1st) 142346, ¶ 20 (trial court's inquiry was
adequate where it discussed claim with defendant and
evaluated claim based on its knowledge of defense
counsel's performance and facial insufficiency of claim).
The trial court did not ask counsel or Curry whether he was
alleging that he had not been given Miranda warnings
at all, whether the warnings were inadequate, whether he did
not understand them, or whether he initially waived but later
decided to assert his rights. As perhaps the most well-known
case in the history of American criminal jurisprudence, the
word "Miranda" is totemic to a layman
criminal defendant, and its use, without detail, does not
yield enough to inform a trial court as to the claim's
factual basis. This mystery could have been solved within a