Court of Appeals of Illinois, First District, Third Division
from the Circuit Court of Cook County. No. 15 CR 17866
Honorable William T. O'Brien, Judge Presiding.
Attorneys for Appellant: James E. Chadd, Patricia Mysza, and
Christopher L. Gehrke, of State Appellate Defender's
Office, of Chicago, for appellant.
Attorneys for Appellee: Kimberly M. Foxx, State's
Attorney, of Chicago (Alan J. Spellberg, Mari R.
Hatzenbuehler, and Victoria E. Campbell, Assistant
State's Attorneys, of counsel), for the People.
JUSTICE ELLIS delivered the judgment of the court, with
opinion. Justices Howse and Cobbs concurred in the judgment
1 Defendant Alfred Downing was found guilty of possession of
cannabis with intent to deliver. During his presentence
investigation interview, he complained about his
attorney's trial performance. The resulting presentence
investigation report (PSI) then recited, in some detail,
defendant's complaints about his trial counsel's
representation. Then, at defendant's sentencing hearing,
the State, arguing in aggravation, cited those very
complaints in the PSI as evidence that defendant lacked
remorse-that instead of accepting responsibility for his
actions, he merely blamed his lawyer's poor performance.
Defendant, for his part, never repeated his complaints in
open court, in a written motion, or in any other informal
communication with the trial court. Nor did the trial court
make any inquiry of defendant.
2 The question here is whether the trial court was required
to conduct a preliminary inquiry under People v.
Krankel, 102 Ill.2d 181 (1984), even though defendant
did not, himself, raise any claims of ineffective assistance
in open court, and even though the claim was raised by the
prosecutor, not defense counsel. Our initial answer, in a
previous order, was no. We held that the trial court had no
duty to conduct a Krankel inquiry, because defendant
did not direct his allegations to the trial court and thus
failed to manifest any intent to litigate a pro se
claim of ineffective assistance.
3 After defendant requested rehearing and upon further
reflection, our answer is yes. The Krankel rule was
fashioned by our supreme court to facilitate the accurate and
efficient disposition of those claims of ineffective
assistance of counsel that cannot be resolved based on the
trial record alone. When, as here, it comes to the trial
court's attention in open court in a post-trial
proceeding that a defendant is claiming ineffective
assistance by his trial counsel, the purposes of
Krankel are best served by requiring an inquiry by
the trial court, regardless of whether that information was
communicated by defense counsel or the prosecutor.
4 While we mean no criticism of the trial court, which was
faced with a unique set of circumstances, we hold that a
Krankel inquiry should have been conducted. We
remand for that purpose. On remand, defendant may also move
to challenge his monetary assessments.
6 On October 6, 2015, Chicago police officers Cloherty and
Ustaszewski (whose first names do not appear in the record)
were in an unmarked car when a Chevy Cavalier drove past
them. The windows of both cars were open, and Cloherty
smelled burning cannabis coming from the Cavalier. He also
noticed that neither the driver, Sharita Butler, nor the sole
passenger, defendant, was wearing a seatbelt. The officers
followed, and ultimately stopped, the Cavalier.
7 Butler got out of the car as the officers approached.
Cloherty asked if she had any cannabis, and Butler handed him
a partially smoked cannabis cigar. Ustaszewski approached the
passenger side of the car and asked defendant if he had any
cannabis. Defendant handed him a cannabis cigar inside an
opened "blunt wrapper."
8 After removing defendant from the Cavalier, Ustaszewski
found two clear plastic bags of cannabis between the center
console and the passenger seat, and a large bag with smaller
plastic bags of cannabis underneath the passenger seat.
Cloherty found two large heat-sealed bags of cannabis and a
scale in the trunk. The parties stipulated to the weight of
the various bags, which totaled approximately 835 grams of
9 Cloherty testified that defendant, who at the time was
handcuffed and standing behind the Cavalier, said that
"all the weed is mine." Ustaszewski also testified
that defendant said "it's all mine" and
"none of it is hers." Defendant did not sign a
written statement, and he never touched or made any movements
toward any of the bags of cannabis. The bags were not
10 The trial court found defendant guilty of possessing 500
to 2000 grams of cannabis. After trial, defendant complained
about the conduct of his trial counsel to the
probation-department investigator. Those complaints were
recorded in the PSI:
"I had three more witnesses I tried to get called and I
also requested a new lawyer and that was denied. I also was
supposed to take the stand and my lawyer didn't let me
take the stand. They let the [p]olice say what they said and
lie on [the] stand. The arresting officers were not the ones
who transported me, no one read me my Miranda [r]ights- they
didn't even have a chance to before I was transported.
They also said I made a statement that the drugs were
mine-Why would I say something like that-I'm on parole.
They even said that the person driving the car tried to hop
out of the car and get away, I was the passenger."
11 At the sentencing hearing, the trial court acknowledged
receipt of the PSI. In aggravation, the State argued that
those statements in the PSI showed that defendant lacked
"I would also address or direct your attention to page
five of the PSI, the defendant's version of the offense,
and suggest that it demonstrates an utter lack of remorse. He
accuses the officers of lying on the witness stand. He
accuses his lawyer of not letting him take the stand to
testify when in fact you inquired, I recall, of his intention
to either testify or not, and he indicated that he did not
wish to yet. He is now blaming his lawyer for the outcome of
the case." (Emphasis added.)
12 After hearing arguments in aggravation and mitigation, the
trial court asked defendant, "[I]s there anything you
wish to say before I impose sentence?" Defendant
answered, "No." Defendant did not mention his
allegations against counsel at any time during the sentencing
hearing, and the trial court never asked defendant to
elaborate on his claims or their alleged factual basis. The
trial court found that defendant was a Class X offender by
background and sentenced him to seven years in prison.
15 Defendant argues that the trial court was required to
conduct a Krankel inquiry into the allegations of
attorney incompetence that he expressed to the probation
department during his PSI interview. Our review is de
novo. People v. Moore, 207 Ill.2d 68, 75 (2003).
17 There is no dispute that at least some of these
allegations sufficed, in terms of their content, to
"raise[ ] a pro se posttrial claim of
ineffective assistance of counsel." See People v.
Ayres, 2017 IL 120071, ¶ 11. Defendant said that
his lawyer failed to call three witnesses; that he'd
wanted to replace his lawyer; and that counsel did not let
defendant testify in his own defense. If the mere words
"ineffective assistance of counsel" are enough to
trigger Krankel (see id. ¶ 26), then
these far more specific claims easily suffice-in content.
18 But the question here is not the content of the claims,
but the manner in which they were received by the trial
court, and by whom they were delivered. Defendant filed
nothing with the court regarding ineffective assistance, nor
did he utter any such words in open court. Rather,
defendant's complaints about his lawyer's
representation first appeared in the PSI, and then were
communicated in open court by the State in aggravation at the
sentencing hearing. The question thus presented is whether
allegations of ineffective assistance, attributed ...