People v. Cox , 2022 IL App (5th) 200047-U ( 2022 )

2022 IL App (5th) 200047-UNOTICE
NOTICE
Decision filed 08/09/22. The
This order was filed under
text of this decision may be NO. 5-20-0047
Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for IN THE limited circumstances allowed
Rehearing or the disposition of
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Effingham County.
)
v. ) No. 18-CF-276
)
TROYT A. COX, ) Honorable
) Kevin S. Parker,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE WELCH delivered the judgment of the court.
Presiding Justice Boie and Justice Vaughan concurred in the judgment.
ORDER
¶1 Held: The defendant’s conviction for driving with a revoked license is affirmed where the
trial court complied with People v. Krankel, 102 Ill. 2d 181 (1984), and its progeny,
where the defendant was not denied his right to counsel during posttrial
proceedings, and where the court properly found that his pro se allegations of
ineffective assistance of counsel did not require the appointment of new counsel.
¶2 This is a direct appeal from the circuit court of Effingham County. The defendant, Troyt
A. Cox, was convicted of driving with a revoked license. On December 6, 2019, he was sentenced
to 30 months of conditional discharge and 180 days in jail. On appeal, the defendant argues that
the trial court’s failure to comply with People v. Krankel, 102 Ill. 2d 181 (1984), deprived him of
his constitutional right to counsel at critical posttrial stages of his case. For the reasons that follow,
we affirm.
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¶3 I. BACKGROUND
¶4 On July 20, 2018, the defendant was charged by information with a second or subsequent
offense of driving while his license was revoked, a Class 4 felony (625 ILCS 5/6-303(a), (d) (West
2018)). A superseding indictment was subsequently filed. On July 30, 2018, the trial court
informed the defendant of the charge against him and explained that Class 4 felonies were
punishable by one to three years in prison or up to 30 months of probation or conditional discharge.
At a hearing held the following day, the defendant indicated that he did not intend to seek private
counsel at that time, and he wished to have the court appoint counsel for him. The court then
appointed the public defender’s office to represent him. Public defender Scott Schmidt, who was
representing the defendant on another matter, appeared with the defendant at this hearing.
¶5 At a pretrial hearing on November 15, 2018, public defender Schmidt indicated that if the
case proceeded to trial, he would assign public defender Janet Fowler as the defendant’s counsel.
Prior to trial, defense counsel filed a motion in limine to preclude the State from using, for
impeachment purposes, the defendant’s prior felony conviction for driving while his license was
revoked. Counsel also filed a motion in limine to preclude the State from introducing into evidence
the defendant’s statement to police that he had been arrested for the “same offense ‘multiple
times.’ ” Both motions were granted.
¶6 On November 26, 2018, the defendant’s jury trial commenced. The defendant was
represented by public defender Fowler. Following jury selection, the jurors were released for the
day with the presentation of evidence to begin the following day.
¶7 On November 27, 2018, the defendant filed a pro se motion to vacate judgment and reopen
Effingham County case No. 10-CF-176 pursuant to section 2-1401 of the Code of Civil Procedure
(735 ILCS 5/2-1401 (West 2018)). The motion challenged his conviction on numerous grounds,
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and he requested that a copy of the motion be included in the record in the present case (Effingham
County case No. 18-CF-276). When the trial in this case resumed, the parties met in chambers to
discuss an inappropriate comment one of the selected jurors made to another juror. The court
removed the juror who made the comment for cause; the juror to whom he was speaking was
questioned by the court, assured the court that she was not affected by the comment, and remained
on the jury over defense counsel’s objection.
¶8 Thereafter, Officer Andy Warner of the Effingham Police Department testified that he
conducted a traffic stop at the Amtrak station parking lot at around 7 p.m. on June 28, 2018.
Warner explained that he had been parked in a lot near Fayette Avenue and Fourth Street in
Effingham, observing traffic. Warner saw a Chrysler Sebring drive past with its passenger side
tires driving “on top of and over the center lane divider.” On cross-examination, Warner clarified
that the driver committed improper lane usage by “straddling” the “white broken line” and by
driving into “the other lane.” Warner began following the vehicle as it proceeded south on Banker
Street from Fayette Avenue. He could see that the driver was a white male wearing a bright orange
shirt, and he did not see any other occupants. Warner tried to position his vehicle behind the
Chrysler, but due to traffic, he became stuck in another lane when the Chrysler turned onto an
access road and drove toward the Amtrak parking lot. Warner had to do a U-turn to get behind the
vehicle.
¶9 Warner activated his lights as the vehicle was parking in the Amtrak lot. When he
approached the driver’s side of the vehicle and started to speak, he noticed that the driver’s seat
was empty and the male he had just seen driving was sitting in the passenger seat. Warner stated
that the man in the passenger seat was the defendant, confirmed that he saw the defendant driving,
and identified him in court. When Warner asked the defendant why he changed seats, the
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defendant initially said he “was always seated in that seat.” After Warner explained that he saw
the defendant driving, he apologized for lying and said, “he knew *** he didn’t have a valid
driver’s license.” Warner confirmed with dispatch that the defendant’s license had been revoked
and placed him under arrest.
¶ 10 People’s Exhibit 6, a video of the traffic stop, was admitted into evidence and played for
the jury. Warner explained that his squad car recorded video and audio of the stop; the recording
system activated automatically when he turned his lights or siren on, or it could be manually
started. Warner also explained that the system “continuously records but doesn’t save it. So when
we activate our lights or turn on the recording actually goes back and starts 30 seconds prior to the
activation.”
¶ 11 According to the timestamp, the video of the traffic stop started at 7:42 p.m. and showed
Warner’s vehicle turning onto a small road leading to a parking lot. A light grey passenger car
can be seen driving in front of Warner’s squad car and turning into a parking lot area, with the
vehicle disappearing from the camera’s view momentarily behind other cars in the lot. The video
showed the squad car parking behind a light grey car, and Warner approaching the vehicle. Warner
asked, “Why are you sitting over there?” The defendant appeared to say that he had been there
“the whole time,” but the response was difficult to hear due to a dog barking and music playing.
Warner responded, “Oh my God,” before radioing for assistance and telling the defendant, “You
need to rethink this, sir.”
¶ 12 Warner told the defendant that he was “being silly,” and that Warner saw him driving.
After giving dispatch the license plate number for the “silver Sebring,” Warner informed dispatch
that the defendant had just “hopped into the passenger seat.” Warner explained to the defendant
that he saw him drive past in his “bright orange shirt” and saw him drive “on the center line a little
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bit.” Warner said he thought the defendant might be going to the Amtrak station or might be
“ducking on” him. Warner said he stopped the car for the lane violation and to make sure the
defendant had not been drinking and driving. The defendant can be heard saying, “my license,”
but the rest of his comment was difficult to hear due to the music playing. Warner asked the
defendant if his license was revoked, and he responded, “Yeah, yeah, I’m revoked. Got two
[inaudible].” Warner asked for identification and explained that he did not know the defendant.
The defendant responded that his license was revoked “forever,” and he had tried unsuccessfully
to get his license back. Ultimately, the defendant exited the vehicle, confirmed his name, and was
handcuffed and taken into custody.
¶ 13 After the video was played for the jury, the State asked the trial court to take judicial notice
of People’s Exhibit 2, an unredacted form of the defendant’s driving abstract, and the State
published People’s Exhibit 3, a redacted version of the driving abstract to the jury. At this point,
the State rested its case.
¶ 14 After the State rested, defense counsel moved for a mistrial, arguing that the video violated
the defendant’s motion in limine because the statement that he “hadn’t had his driver’s license for
forever” referred “back somewhat to the having *** multiple similar offenses in the past.” The
trial court denied the motion for mistrial as well as the defendant’s motion for directed verdict.
The defendant did not testify or present any evidence in his defense. Thereafter, the jury found
the defendant guilty of driving while his license was revoked.
¶ 15 On December 7, 2018, defense counsel filed a motion for a new trial alleging that the State
failed to prove the defendant guilty beyond a reasonable doubt, the State failed to prove that he
was operating a motor vehicle on a roadway, and the trial court failed to comply with Illinois
Supreme Court Rule 431(b) (eff. July 1, 2012) during voir dire.
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¶ 16 On January 11, 2019, the defendant filed a pro se “motion to vacate judgment/stay
enforcement and request for a new trial.” Relevant to this appeal, the motion asserted that the
defendant’s case was assigned to public defender Fowler shortly before trial; the defendant only
met with her for approximately 15 minutes prior to trial; she was ineffective for failing to file a
motion to suppress the evidence from the traffic stop; the traffic stop was illegal; Warner gave
false testimony; and there were no white lines on the road where Warner claimed there to be.
¶ 17 On January 14, 2019, the defendant filed a pro se motion to suppress evidence. The
defendant claimed the motion could not have been filed sooner due to ineffective assistance of
counsel, and he argued the traffic stop was unlawful and Warner stopped him based on a hunch.
In a motion to continue filed on the same date, the defendant maintained that a continuance was
necessary for the trial court to rule on the motion to vacate in case No. 10-CF-176 and the motion
to suppress in this case (case No. 18-CF-276).
¶ 18 At the January 16, 2019, hearing, the defendant appeared with public defender Fowler.
The trial court stated that there had been “a number of motions filed” by the defendant pro se and
explained that it was “generally not obligated to entertain any pro se motions at a time that the
Defendant is represented by counsel.” However, the court noted that it needed to determine
whether the defendant’s filings would give rise to a Krankel hearing. The court explained that
before it proceeded, it needed to ask the defendant if he still wished to be represented by the public
defender in this case and other pending cases. The court advised that the defendant had a right to
an attorney and to have one appointed if he could not afford one, and it noted that the public
defender had been previously appointed. The court again said the defendant’s posttrial motions
“seem to suggest the possibility of ineffective assistance of counsel” and asked, “Again, Mr. Cox,
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do you wish to be represented by either a private attorney or the Public Defender’s Office further
in these matters?” The defendant answered, “Public attorney, Your Honor.”
¶ 19 The trial court asked how he had been able to post bond, and the defendant said his family
helped him. The court found the case could not proceed to sentencing until the posttrial motions
were resolved and scheduled a status hearing on the motions. Fowler informed the court, “That’s
fine, but Mr. Cox said he wanted private counsel at this point.” The following exchange then
occurred:
“THE COURT: I misheard that and I apologize. Let me ask again, do you no longer
wish to be represented by the Public Defender’s Office?
[THE DEFENDANT]: No, sir, I don’t.
THE COURT: Is it your intention then to represent yourself going forward or to
hire private counsel?
[THE DEFENDANT]: My intention is to hire private counsel, but I would also like
to ask the Public Defender to give me any discovery and any—
THE COURT: Well at some, at such time as you hire counsel, the Court will require
the Public Defender to provide any and all discovery material or in the case of 18-CF-276,
the entire contents of his file. Are you asking that the appointment of the Public Defender
be vacated at this time?
[THE DEFENDANT]: Yes, sir, I am.”
¶ 20 At that juncture, the trial court vacated the appointment of the public defender’s office as
the defendant’s counsel. The court confirmed the defendant’s understanding that the next step in
the procedure would be sentencing on a Class 4 felony. The court set a status hearing and told
Fowler that she would be notified if a Krankel hearing occurred.
¶ 21 Pursuant to the defendant’s prior motion to continue, the trial court next addressed his
motion to vacate judgment filed in case No. 10-CF-176. At a hearing on April 11, 2019, the
defendant appeared pro se and argued in support of the motion. The court took the matter under
advisement and later denied the motion during a hearing on May 13, 2019. Also at the May 13
hearing, the court again asked the defendant if he intended to represent himself until the conclusion
of the present case (No. 18-CF-276), and he responded in the affirmative. The court asked if,
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going forward, the defendant intended to hire private counsel or represent himself. He responded
that he would represent himself. The court set a hearing for July 19 to address the defendant’s
motion for new trial and sentencing.
¶ 22 On August 12, 2019, the defendant filed an “amendment to motion for new trial/motion to
dismiss indictment,” which alleged, in part, that he received ineffective assistance of counsel. At
a hearing held on that date, the trial court explained that the parties were present for sentencing.
The court asked the defendant if he was “prepared to go forward today on [his] sentencing hearing
on [his] own behalf without the assistance of either a privately-retained or court-appointed
attorney?” He responded, “Your Honor, not until we—we can go ahead and hear the motions that
are still pending.” The court said:
“I need to know whether you wish to be represented by an attorney or whether you’re
planning to—you’re going to persist in your waiver and represent yourself? And we’ll
address all of your motions here today. How do you wish—are you waiving your right to
an attorney?”
The defendant once again confirmed that he was waiving his right to an attorney.
¶ 23 When the trial court asked which posttrial motions the defendant wanted to address, he
addressed his pro se motion to suppress filed after trial and asserted that “the Public Defender
failed to bring up any of that in the trial.” The court denied the motion, explaining that a motion
to suppress must be filed prior to trial, the “ship [had] sailed with respect to motions to suppress
evidence,” and it was “not a proper posttrial motion.” The defendant next discussed his pro se
motion to vacate judgment and stay enforcement filed in this case on January 11, 2019. The
defendant argued, inter alia, that Warner gave false testimony at trial. The State responded that
the issues raised should have been addressed prior to or at trial. The court agreed and denied the
motion. After the defendant discussed some additional matters, the court explained that the
posttrial motions had been denied, and the case would proceed to sentencing.
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¶ 24 The trial court allowed the defendant to explain his objections to the presentence
investigation report (PSI) and to correct any errors. The court later observed that his posttrial
claims were challenging “certain trial strategies” and “challenging the sufficiency of [his] legal
counsel during the trial.” The defendant confirmed that he was. The court determined it would
allow the State to present its sentencing evidence, have the PSI updated, and then adjourn for
further proceedings. The court explained:
“the Court is going to consider whether or not the matters raised in some of the posttrial
motions rise to the level of a Krankel issue, a pro se Krankel issue. What that means is
*** whether or not it’s considered a pro se motion raising posttrial presentencing the
ineffective assistance of counsel. The Court has to make a preliminary finding or
consideration to which you may or may not be entitled to a hearing under [Krankel], but
the Court is going to take that time to do so.”
After the State presented its sentencing evidence, the court advised that it would “hopefully before
the 27th make any determinations with respect to its Krankel analysis with respect to the motion—
the matters raised as to ineffective assistance of counsel.” The docket entry entered after this
hearing also said the court would consider whether Krankel applied.
¶ 25 On August 27, 2019, the defendant filed a pro se motion entitled “ineffective assistance of
counsel,” which argued, inter alia, that counsel “failed to bring any defense to the case
whatsoever,” failed to “effectively cross examine Officer Warner,” and failed to file a motion to
suppress “regarding the unconstitutional traffic stop.” At the August 27 hearing, the trial court
explained that it had not reviewed the motion filed on that day or had the opportunity to give
further thought to whether it would grant a preliminary hearing on the defendant’s pro se Krankel
motion. The court scheduled a final status hearing for September 6 and explained that it would
rule on the Krankel issue on that date.
¶ 26 In a docket entry entered on September 5, 2019, the trial court stated that it found the
defendant’s pro se ineffective assistance of counsel claims had “merit, ostensibly and superficially,
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to justify a preliminary, non-adversarial, hearing” about the allegations. Further, the court intended
to “schedule such preliminary hearing on the Defendant’s posttrial motion pursuant to Krankel,
supra, and shall inquire, again, of the Defendant as to his wish to be represented by counsel, private
or court appointed.” The docket entry for September 6 indicated that the court set the Krankel
hearing for October 18, 2019, at 1 p.m.
¶ 27 At the October 18, 2019, hearing, the trial court explained that it would be conducting an
“initial inquiry” into the defendant’s pro se ineffective assistance of counsel motion filed on
August 27, 2019. The court explained:
“The Court having reviewed that pro se motion determined that it had an initial
duty to conduct what is referred to as a Krankel investigation, rather, into the allegations
of ineffective assistance of counsel. That’s specifically pursuant to case [Krankel, 102 Ill.
2d 181] decision, together with its progeny of cases.
This hearing that we are about to hear is non-adversarial in nature. What that means
is there will not be questions and answers posed to each other. Rather the inquiry will be
limited to the Court asking questions of Mr. Cox and of his trial attorney, Ms. Fowler, as
they relate to Mr. Cox’s motion.
The state, while present representing the people, will not engage in cross
examination either. And at the conclusion, the Court will conduct a Krankel analysis, also
in light of the case [Strickland v. Washington, 466 U.S. 668 (1984)] which is the seminal
case that deals with the claim of ineffective assistance of counsel.”
¶ 28 When asked if he had any questions, the defendant said no. The trial court told the
defendant to explain his claims of ineffective assistance, and the defendant said, “Your Honor,
according to your previous ruling, you already found that the claims had merit?” The court
responded:
“The claims have merit to engage in a Krankel hearing; that’s what we are conducting
today. I made no determination as to the merits. They have a prima facie—they raise
issues of constitutional—constitutionality, and that’s what this hearing is to determine to
make a determination of whether or not your motion for a new trial based upon ineffective
assistance of counsel should be granted or denied.”
¶ 29 The trial court again directed the defendant to argue his ineffective assistance allegations.
The court asked the defendant what defense he believed his trial counsel should have raised, and
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he responded that he did not know “what the proper defense was for that.” When the defendant
explained that he “wasn’t ready for this type of hearing today,” the court asked why he was not
ready, and the following exchange occurred:
“THE DEFENDANT: Because the docket showed that we were having a
preliminary hearing just to decide whether you were going to appoint counsel to—
appoint—or give me a chance to get counsel.
THE COURT: Well, if the Court were to find some merit, the next inquiry would
be whether or not you do wish to be represented by an attorney. Do you wish to be
represented by an attorney, court appointed attorney?
THE DEFENDANT: Depending on who the court appointed attorney would be,
Your Honor.
THE COURT: Well, no. You don’t have a right to pick your attorney. You can
hire a private attorney.
THE DEFENDANT: Yeah, yeah. Right. I understand.”
¶ 30 The trial court reiterated that the defendant could hire any private attorney, as he had posted
bond “time and time again.” The court told the defendant that it would give him the opportunity
to hire an attorney if he wished to do so. The court asked the defendant if he wanted to be
represented by a court appointed attorney. The defendant declined private or appointed counsel
and said that he planned to represent himself.
¶ 31 When the trial court again asked what defense should have been raised, the defendant
argued that the traffic stop lacked probable cause. The court asked whether there were any “simple
defenses, referred to sometimes as affirmative defense,” that should have been raised, and the
defendant responded, “I don’t know the proper defense for that because I’m not an attorney.” In
response to the allegation, trial counsel explained that because Warner observed a traffic violation
and the defendant confessed to driving, she did not believe a defense was available.
¶ 32 The defendant argued that the traffic stop was unconstitutional because the “police report
didn’t match the DVD.” Although the police report said Warner initiated the stop because the
defendant crossed the center line two times, the defendant asserted, “In one part of it, it said it was
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on a part of a road that doesn’t even have a center line and turned left—I can’t remember off the
top of my head—turned left onto Banker Street and the tire crossed the center line, which there is
no center line.” The defendant maintained that “there was no real reason to pull [him] over.” Trial
counsel responded:
“I didn’t think—I think it was fairly clear that the officer observed what he observed, that
he did swerve into—go into the other lane slightly. I didn’t think it would—I didn’t think
a motion to suppress would be available there. I didn’t think that there was—even though
it was close and I questioned Officer Warner at trial, I did not think that I would succeed
on a motion to suppress, given my experience in similar types of cases with that scenario
of the proper lane usage type cases. I did not think that that was going to succeed.”
Counsel later recalled that the police report indicated there was “some sort of white line in the
middle of the road,” which contributed to her decision to not file a motion to suppress.
¶ 33 The defendant argued that counsel ineffectively cross-examined Warner. In support, he
said Warner only pulled him over because he assumed he was trying to avoid police contact and
that was not a valid basis for a traffic stop. Trial counsel acknowledged that the video did not
show the defendant’s driving at the time of the alleged violation, but she believed that she cross-
examined Warner sufficiently as to his observations of the defendant’s driving. The hearing
proceeded with the defendant arguing in support of his additional ineffective assistance claims and
counsel explaining the actions taken.
¶ 34 At the conclusion of the discussion as to the defendant’s claims, the trial court explained it
had considered the defendant’s motion and “conducted an initial inquiry” pursuant to Krankel.
The court stated it was considering the claims in light of Strickland. Next, the court explained:
“The Court has given the defendant an opportunity to elaborate on the various
challenges that he has to the effectiveness of [trial counsel]. The Court, having reviewed
that and having afforded both [the defendant and trial counsel the opportunity] to comment,
finds that the matters raised are either—well, either do not raise constitutional issues or do
not—did not prejudice the defendant in the presentation of his defense, or involves simply
matters of trial strategy. The Court went to great lengths to protect Mr. Cox’s rights when
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issues were brought to the Court’s attention. And it is the Court’s estimation that [trial
counsel] did likewise.”
The court denied the defendant’s pro se motion alleging ineffective assistance of counsel. The
court scheduled the case for sentencing and explained the defendant could present argument in
support of the motion for a new trial filed by trial counsel at that hearing. The court further
explained that the defendant still had a right to an attorney, and he could hire counsel or request
that the court appoint counsel to represent him at that hearing.
¶ 35 On November 1, 2019, the defendant filed a pro se “objection to and motion to reconsider
‘Krankel’ hearing.” In that motion, the defendant argued the trial court’s September 5 docket entry
demonstrated that the court found his claims had merit, the court did not need to hold a preliminary
hearing, he was not prepared to argue the merits of his claims at the October 18 hearing, the court
should have appointed counsel to represent him on those claims, and the court erred on October
18 by deciding the ultimate question of whether counsel was ineffective. The defendant
maintained that he believed the court was evaluating his claims for potential merit, and he was
prejudiced because he did not have counsel to help him argue his claims. On December 6, 2019,
he filed a motion for new trial arguing, among other things, that the traffic stop was illegal.
¶ 36 At the December 6, 2019, sentencing hearing, the defendant appeared pro se. He argued
that the Krankel procedure was done incorrectly, and the only issue that should have been
determined was whether counsel should be appointed. The trial court responded:
“The Court does recall spending a good deal of time reviewing the Krankel case and the
procedure set out in that and the progeny of cases that followed that. It was to have been
conducted as an [sic] nonadversarial proceeding. The former attorney for Mr. Cox was
present and was subjected to questions by the Court. Mr. Cox was given opportunity to
make his arguments and the Court felt that he made his arguments in an articulate fashion.
I simply respectfully disagreed and your motion is respectfully denied, the motion—or
objection, rather, motion to reconsider the Krankel hearing.”
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The defendant argued his other pro se motions, and those were denied. Following arguments by
both the State and the defendant, the trial court sentenced the defendant to 30 months of conditional
discharge as well as 180 days in jail, though the court ordered the sentence to be stayed pending
the appeal.
¶ 37 On January 6, 2020, the defendant filed a motion to reconsider sentence, which was denied.
The defendant filed his notice of appeal on February 7, 2020.
¶ 38 II. ANALYSIS
¶ 39 The defendant’s sole contention on appeal is that the trial court’s failure to comply with
Krankel deprived him of his constitutional right to counsel at critical posttrial stages of his case.
In support of this contention, the defendant argues that (1) he was deprived of his right to counsel
where the court did not conduct Krankel proceedings as soon as he raised pro se ineffective
assistance of counsel claims, (2) the court erred in accepting his posttrial waiver of his right to
counsel where it was not clear and unambiguous and where the court failed to admonish him in
accordance with Illinois Supreme Court Rule 401 (eff. July 1, 1984), (3) he was entitled to the
appointment of counsel and additional proceedings based on his pro se allegations of ineffective
assistance of counsel, and (4) the court used the wrong legal standard in evaluating his claims.
¶ 40 As previously stated, the defendant was represented at trial by public defender Fowler.
After trial and after defense counsel had filed a motion for new trial, the defendant made several
pro se filings that raised allegations of ineffective assistance of counsel. After questioning the
defendant, the trial court vacated the appointment of the public defender as the defendant’s
counsel, and new counsel was not appointed for the remainder of the defendant’s posttrial
proceedings.
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¶ 41 The sixth amendment of the United States Constitution provides defendants with the right
to counsel. U.S. Const., amends. VI, XIV. Further, an indigent defendant is entitled to have
counsel appointed for him. People v. Hughes, 315 Ill. App. 3d 86, 91 (2000) (citing Gideon v.
Wainwright, 372 U.S. 335 (1963)). Our supreme court has reiterated that the right to counsel exists
“at every stage of a criminal proceeding where substantial rights of a criminal accused may be
affected,” including posttrial and sentencing proceedings. (Internal quotation marks omitted.)
People v. Dixon, 366 Ill. App. 3d 848, 851-52 (2006); Hughes, 315 Ill. App. 3d at 95. A defendant
may waive his right to counsel and proceed pro se so long as he does so voluntarily and
intelligently. Dixon, 366 Ill. App. 3d at 852; Ill. S. Ct. R. 401(a). “ ‘We review the trial court’s
finding that defendant waived his right to counsel under an abuse of discretion standard,’ ” and in
light of the overall context of the proceedings. Dixon, 366 Ill. App. 3d at 852 (quoting Hughes,
315 Ill. App. 3d at 91); see People v. Phillips, 392 Ill. App. 3d 243, 260 (2009).
¶ 42 Under Krankel and its progeny, the trial court is obligated to inquire into a defendant’s
pro se posttrial claims that he was denied the effective assistance of counsel. People v. Ayres,
2017 IL 120071, ¶ 11; People v. Moore, 207 Ill. 2d 68, 77-78 (2003). This inquiry, which is
sometimes referred to as a “preliminary Krankel inquiry” (People v. Jolly, 2014 IL 117142, ¶ 28),
requires the court to ascertain the nature of defendant’s ineffective assistance of counsel claims
and evaluate their potential merits (People v. Mays, 2012 IL App (4th) 090840, ¶ 58). To
understand the factual bases of defendant’s allegations, it is proper for the court to question both
trial counsel and defendant. Ayres, 2017 IL 120071, ¶ 12. If defendant’s allegations show that
trial counsel may have neglected defendant’s case, the court should appoint new counsel and set
the matter for a hearing. Id. ¶ 11; Moore, 207 Ill. 2d at 78. If the court determines that the claims
lack merit or pertain only to matters of trial strategy, however, then no further action is required.
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Id. A preliminary Krankel inquiry “serves the narrow purpose of allowing the trial court to decide
whether to appoint independent counsel to argue a defendant’s pro se posttrial ineffective
assistance claims.” People v. Patrick, 2011 IL 111666, ¶ 39.
¶ 43 A defendant’s pro se claim lacks merit if it is misleading, conclusory, or legally immaterial
or fails to “ ‘bring to the trial court’s attention a colorable claim of ineffective assistance of
counsel.’ ” People v. Cook, 2018 IL App (1st) 142134, ¶ 104 (quoting People v. Johnson, 159 Ill.
2d 97, 126 (1994)). “The court may, of course, rely on its own legal knowledge of what does and
does not constitute ineffective assistance.” Mays, 2012 IL App (4th) 090840, ¶ 57. The court may
also base its evaluation of defendant’s claims on its knowledge of counsel’s performance at trial
and “the insufficiency of the defendant’s allegations on their face.” Moore, 207 Ill. 2d at 79.
¶ 44 “The operative concern for the reviewing court is whether the trial court conducted an
adequate inquiry into the defendant’s pro se allegations of ineffective assistance of counsel.” Id.
at 78. Whether the court properly conducted a preliminary Krankel inquiry is a legal question
reviewed de novo. Jolly, 2014 IL 117142, ¶ 28. If, however, the court conducted
the Krankel inquiry properly and reached a determination on the merits, we will reverse only if its
action was manifestly erroneous. People v. Tolefree, 2011 IL App (1st) 100689, ¶ 25. “ ‘Manifest
error’ is error that is clearly plain, evident, and indisputable.” Id.¶ 45 The record reveals that the defendant’s arguments on appeal are without merit. First, we
will not hold the trial court’s decision to research Krankel and its progeny and thoughtfully
consider whether the defendant’s pro se claims triggered its duty to inquire into the allegations
against it. Further, the defendant’s several pro se filings, including a motion to continue requesting
that the court first address his motion to vacate in case No. 10-CF-176 and the motion to suppress
in this case, contributed to the delay in the court being able to address the defendant’s ineffective
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assistance claims. Additionally, the defendant raised additional claims implicating Krankel up
until August 27, 2019, less than two months before the court’s preliminary Krankel hearing. Thus,
we find nothing improper about the timing of the court’s preliminary Krankel hearing.
¶ 46 The record also indicates that the defendant unequivocally waived his right to counsel in
open court and clearly understood that he would be proceeding pro se as evidenced by the trial
court’s repeated questioning on the matter over several different hearings. After the defendant
expressed his wish that the appointment of the public defender’s office as his counsel be vacated,
the court made sure he understood that the next step would be sentencing on a Class 4 felony, for
which the court had previously explained the penalties. We conclude that the court did not abuse
its discretion in finding that the defendant waived his right to counsel during his posttrial
proceedings. The court conducted several inquiries and allowed the defendant time to develop his
allegations against trial counsel while the court considered whether they triggered a preliminary
Krankel inquiry. Therefore, the record does not support the defendant’s contention that he was
deprived of counsel during his posttrial proceedings.
¶ 47 Moreover, to the extent that the defendant argues the trial court deprived him of counsel
during the Krankel hearing by not appointing new counsel to represent him, we must disagree. As
previously stated, the court first makes an inquiry to determine the merits of a defendant’s
ineffective assistance of counsel claim. Only when the court determines that there was possible
neglect of defendant’s case is it required to appoint counsel. See Ayres, 2017 IL 120071, ¶ 11.
Since the court here determined that the defendant’s claims were unfounded, it appropriately did
not appoint new counsel to argue those claims. Nevertheless, we note that, even after the court
found the defendant’s claims to be without merit, the court once again advised him that he had a
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right to counsel, he could hire counsel, or he could request that the court appoint counsel to
represent him at the sentencing hearing.
¶ 48 We now turn to the defendant’s argument that the trial court employed the wrong legal
standard during its preliminary Krankel inquiry. Specifically, he contends that the court “held
[him] to a higher burden and required him to prove that counsel was ineffective pursuant to
Strickland v. Washington, when [he] was only required to show that counsel possibly neglected his
case.” (Emphases in original.) For the following reasons, we disagree that the court committed
error here.
¶ 49 The trial court’s finding that the defendant’s claims lacked merit as they did not raise
constitutional issues, did not prejudice the defendant, and involved matters of trial strategy does
not automatically mean that the court conducted an improper hearing. As the State notes, our
supreme court has stated, on multiple occasions, that, following a preliminary Krankel hearing, a
trial court may decline to appoint new counsel if the defendant’s claim is meritless. See, e.g.,
People v. Jocko, 239 Ill. 2d 87, 92 (2010) (no new counsel is required where defendant’s claim
“lacks merit”); People v. Simms, 168 Ill. 2d 176, 199 (1995) (no new counsel where defendant’s
claim was “meritless,” because it involved “matters of trial strategy which may not be second-
guessed”); People v. Sims, 167 Ill. 2d 483, 518 (1995) (if “there is no validity to the defendant’s
claim” or “it pertains to a matter of trial strategy,” then new counsel need not be appointed).
Further, the docket entry indicating that the claims “[had] merit, ostensibly and superficially, to
justify a preliminary, non-adversarial, hearing on the motion” simply demonstrated that the court
correctly found the defendant had raised pro se ineffective assistance of counsel claims sufficient
to trigger the court’s duty to conduct a preliminary Krankel inquiry.
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¶ 50 The defendant’s argument is further undermined by our supreme court’s recent decisions
in People v. Roddis, 2020 IL 124352, and People v. Jackson, 2020 IL 124112. In Roddis, the
supreme court held that, in a Krankel hearing, courts may properly consider both the factual and
legal merits of a defendant’s ineffective assistance claim. Roddis, 2020 IL 124352, ¶ 70. In so
doing, the court noted that its oft-quoted language from Moore that a trial court need not appoint
counsel if defendant’s claim “lacks merit” (Moore, 207 Ill. 2d at 77-78) has never been interpreted
by the supreme court as distinguishing between factual and legal merit. Roddis, 2020 IL 124352,
¶ 55. The court reiterated that, at a Krankel hearing, a trial court may base its determination of the
merits of a defendant’s ineffective assistance claims on its own knowledge of counsel’s trial
performance and emphasized, “[t]he trial court, most familiar with the proceedings at issue,
remains best situated to serve the interests of judicial economy by extinguishing conclusory claims.
We decline to unduly limit the most effective arbiter between patently frivolous claims and those
showing possible neglect.” Id. ¶ 56.
¶ 51 The Roddis court concluded:
“We find that, even in preliminary Krankel inquiries, a trial court must be able to
consider the merits in their entirety when determining whether to appoint new counsel on
a pro se posttrial claim of ineffective assistance of counsel. This serves both the ends of
justice and judicial economy.” (Emphasis in original.) Id. ¶ 61.
See also Jackson, 2020 IL 124112, ¶¶ 101-05 (similarly finding). Thus, Roddis and Jackson are
fatal to the defendant’s argument, as framed on appeal, that the trial court improperly considered
the legal merits of his ineffective assistance claims during the Krankel hearing.
¶ 52 We note, however, that the defendant’s briefs discuss the merits of one of his ineffective
assistance claims. To the extent that he also suggests that the court erred in determining his claim
did not show possible neglect, we would again disagree. As previously noted, it is not improper
for the court to reject claims that are clearly based on counsel’s application of trial strategy (Moore,
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207 Ill. 2d 68, 77-78), and the defendant’s claim here, concerning counsel’s decision to not file a
motion to suppress the traffic stop, falls squarely into that category. See, e.g., People v. Janosek,
2021 IL App (1st) 182583, ¶ 28 (mandate issued Jan. 31, 2022). Further, although a defendant
may, theoretically, rebut presumptions of sound strategy in an ineffective assistance claim, the
claims here do not reflect neglect of the case or constitute bare assertions of strategy without any
substance. See, e.g., People v. Maya, 2019 IL App (3d) 180275, ¶ 27. Trial counsel explained
that she did not believe a motion to suppress would have been successful, based on her experience,
because both Warner’s testimony and the police report indicated there was a white line in the
middle of the road that the defendant crossed. Although the video did not show the white line or
the traffic violation, Warner explained that the video saved the recording only 30 seconds prior to
him activating his lights or siren. Further, the court presided over the defendant’s trial, observed
the evidence presented, and had intimate knowledge of counsel’s representation of the defendant
throughout the proceedings.
¶ 53 In sum, viewing the defendant’s ineffective assistance of counsel allegations in the context
of the entire record on appeal, we conclude that the trial court’s preliminary Krankel inquiry was
proper and supported the court’s denial of the defendant’s posttrial motions. The court rightfully
rejected the defendant’s claims based on its firsthand knowledge of counsel’s performance during
the trial and the fact that the claims related to trial strategy. We find that the court’s determination
that trial counsel provided effective assistance to the defendant during the pendency of his case
was not manifestly erroneous, and the record does not reveal that the appointment of counsel was
necessary for investigation into the defendant’s claims.
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¶ 54 III. CONCLUSION
¶ 55 For the foregoing reasons, the judgment of the circuit court of Effingham County is hereby
affirmed.
¶ 56 Affirmed.
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