People v. Tate , 2022 IL App (3d) 210175-U ( 2022 )

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2022 IL App (3d) 210175-UOrder filed October 13, 2022
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2022
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-21-0175
v. ) Circuit No. 15-CF-2855
)
JAMES S. TATE, ) Honorable
) David M. Carlson,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE DAUGHERITY delivered the judgment of the court.
Justices McDade and Hauptman concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: The circuit court did not err by refusing to appoint defendant new counsel after a
preliminary Krankel inquiry.
¶2 Defendant, James S. Tate, appeals the denial of his posttrial claims of ineffective
assistance of counsel. Defendant argues the Will County circuit court’s decision to deny him
appointment of new counsel was manifestly erroneous. We affirm.
¶3 I. BACKGROUND
¶4 The State filed a five-count superseding indictment against defendant on February 18,
2016. The indictment charged defendant with aggravated domestic battery (720 ILCS 5/12-3.3(a)
(West 2014)), aggravated battery (id. § 12-3.05(a)(1)), and three counts of felony-level domestic
battery (id. § 12.3.2(a)(1), (2)). The court appointed the public defender to represent defendant.
¶5 On September 23, 2016, defendant waived his right to a jury trial. The matter proceeded
to a bench trial on December 21, 2016. Before trial, the State reduced defendant’s three felony
domestic battery charges to misdemeanors. The court found defendant guilty of all five charges.
¶6 Prior to sentencing, defendant filed a motion, as a self-represented litigant, alleging
ineffective assistance of counsel. In the motion, defendant listed several instances where counsel
was ineffective. The motion included the allegation that the State had offered defendant a plea
that would reduce all charges to misdemeanors and recommend a one-year sentence of
imprisonment. Defendant alleged that counsel conveyed the offer moments before trial began,
with insufficient time for him to consider the offer. Further, defendant alleged that he would
have accepted the offer if he had been given sufficient time to consider it.
¶7 The circuit court inquired into defendant’s claims on April 11, 2017. Defendant argued
that the State made a plea offer, and he did not receive enough time to properly consider it. The
court denied defendant’s motion without addressing defendant’s claim or questioning counsel
about the allegations.
¶8 On April 24, 2017, the court sentenced defendant to 12 years’ imprisonment for
aggravated domestic battery and 5 years’ imprisonment for aggravated battery. The sentences
were to run concurrently, and the remaining misdemeanor counts merged into the sentences.
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¶9 On appeal, we remanded for a preliminary Krankel inquiry, holding that the court failed
to conduct a proper inquiry to address defendant’s claims. People v. Tate, 2019 IL App (3d)
170321-U.
¶ 10 On August 20, 2020, the court held a hearing where it allowed defendant the opportunity
to argue why counsel was ineffective. Additionally, defendant questioned counsel regarding
whether the State made a plea offer. Counsel responded that he never received an offer from the
State. Defendant argued that it was unreasonable to believe that there was never a plea offer, as
most convictions result from guilty pleas.
¶ 11 Defendant further explained that he had a conversation with counsel before court began
the day of the trial. Counsel told him the State offered to reduce his charges to misdemeanors,
but that he knew defendant would reject it. Defendant stated that he had questions for counsel
regarding the plea, but counsel walked away before he could ask them.
¶ 12 The court asked counsel for his response to defendant’s claims, and counsel stated that he
never received an offer. He further stated that if an offer was made, he would have stopped jury
selection so defendant could have time to consider it. Defendant pointed out that counsel was
incorrect, and his memory was faulty, because he had a bench trial and waived his right to a jury
trial well before a trial was set. Defendant argued that because counsel could not even remember
whether there was a bench or jury trial, he had clearly proven that counsel could have possibly
been ineffective. The court continued the inquiry to a future date so it could review the
transcripts leading up to trial for any indication that a plea offer was mentioned.
¶ 13 At the next hearing date where the court addressed the preliminary inquiry, the court
noted that it had reviewed the transcripts and record, stating that:
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“After having our initial inquiry into the Krankel issues, *** I can’t say that
[counsel] was derelict in his duties or in any way, shape, or form was ineffective.
I know the issue that you raise, obviously, I took very seriously, ***. ***
[T]here is nothing as it relates to that that would have, in fact, affected your
ability to defend yourself in this matter, and that was why I was looking for it.
***
*** [T]he issue is whether or not he was ineffective or derelict in his
duties, as far as representing you in the case, and I can’t say he was.”
¶ 14 Defendant again argued that counsel was ineffective for failing to give him adequate time
to consider the State’s offer. While the court stated that counsel was unequivocal in his
recollection no offer was tendered, defendant argued that counsel could not recall. The court
continued the hearing to review the transcripts of the Krankel inquiry, so that it could be certain
what was said regarding if there was an offer before trial.
¶ 15 On April 29, 2021, several attorneys from the State appeared at the court’s request. The
court asked defendant if it could ask the State whether it made an offer in his case. Defendant
responded that he did not want the State to answer any questions and that he had done enough to
prove his attorney neglected his case. The court then denied defendant’s motion, stating that
counsel was unequivocal in his testimony that the State made no plea offer. Regarding counsel’s
mistake that defendant had a jury trial, the court stated:
“I understand *** your issue that you raise about the jury selection or
there was a waiver, I understand that. And while it is—I suppose the offer is
circumstantial proof that [counsel] had no independent recollection, I guess, of
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your matter, I don’t necessarily think it raises to—or is raised to that level. And
the final line of [counsel]’s testimony was there was never one made.”
¶ 16 Defendant argued that in a preliminary Krankel inquiry, he only had to show a possibility
that counsel was ineffective, and that counsel’s confusion on the matter was sufficient to show it
was possible. He further argued that new counsel should be appointed. The court stated that
defendant failed to make a showing sufficient to continue the matter. Defendant appealed.
¶ 17 II. ANALYSIS
¶ 18 Defendant argues that he sufficiently demonstrated possible neglect of his case, and that
the circuit court’s finding to the contrary was manifestly erroneous. Specifically, he claims that
he showed that counsel possibly neglected his case in that counsel failed to adequately explain
the plea offer to him and did not allow him enough time to fully consider it before beginning
trial.
¶ 19 Through People v. Krankel, 102 Ill. 2d 181 (1984), and its progeny, our supreme court
has developed a procedural framework for the resolution of posttrial claims of ineffective
assistance of counsel. When a defendant raises, as a self-represented litigant, an ineffective
assistance of counsel claim after trial, the circuit court must conduct a preliminary Krankel
inquiry to determine whether new counsel should be appointed to address the issue. People v.
Jolly, 2014 IL 117142, ¶ 29. The purpose of the preliminary inquiry is to determine the
underlying factual basis of the claims and to provide defendant an opportunity to argue his
claims to the court. People v. Ayres, 2017 IL 120071, ¶ 24. New counsel is only appointed if the
allegations show a possibility that counsel neglected the case. People v. Moore, 207 Ill. 2d 68, 78
(2003).
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¶ 20 At a preliminary Krankel inquiry, the circuit court may consider the legal merit of the
claim as well as the factual basis. People v. Roddis, 2020 IL 124352, ¶ 61. “[S]ome interchange
between the trial court and trial counsel regarding the facts and circumstances surrounding the
allegedly ineffective representation is *** usually necessary in assessing what further action, if
any, is warranted on a defendant’s claim.” Moore, 207 Ill. 2d at 78. The court may base its
decision on “its knowledge of defense counsel’s performance at trial and the insufficiency of the
defendant’s allegations on their face” Moore, 207 Ill. 2d at 79. A court’s determination that a
defendant did not demonstrate a possible neglect of the case will not be reversed unless such
decision is manifestly erroneous. People v. Maya, 2019 IL App (3d) 180275, ¶ 17. Manifest error
occurs when such error is “clearly evident, plain, and indisputable.” People v. Ruiz, 177 Ill. 2d
368, 384-85 (1997).
¶ 21 In the instant case, the court conducted a proper preliminary inquiry and defendant’s
claims did not warrant the appointment of new counsel. The court engaged both defendant and
counsel and gave each the opportunity to explain his respective position. In addition, the court
held the inquiry over the course of several court hearings and allowed defendant to speak at each
hearing. Defendant claimed that when counsel relayed the offer to him, counsel almost
immediately dismissed him, assuming defendant would not accept, and walked away before
defendant could ask any questions. Counsel rebutted these claims when he told the court he did
not receive any offers from the State. At the insistence of defendant, the court also reviewed the
transcripts from the Krankel inquiry and found that counsel unequivocally stated that he did not
receive an offer for defendant. From this, the court determined that counsel’s mistake in stating
that defendant had a jury trial was not indicative of ineffective assistance or possible neglect.
Ultimately, the court’s finding that counsel’s testimony was more credible and further inquiry
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was unnecessary is not manifestly erroneous. We cannot say that it was indisputable that
defendant demonstrated possible neglect.
¶ 22 Considering the efforts made by the court to adequately conduct the preliminary Krankel
inquiry and its thorough review of the facts and statements made by both counsel and defendant,
we find no manifest error in the court’s conclusion. Accordingly, we decline to remand for the
appointment of independent counsel and further Krankel proceedings.
¶ 23 III. CONCLUSION
¶ 24 The judgment of the circuit court of Will County is affirmed.
¶ 25 Affirmed.
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