People v. Downs , 2017 IL App (2d) 121156-C ( 2017 )

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People v. Downs, 2017 IL App (2d) 121156-CAppellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MARK A. DOWNS, Defendant-Appellant.
District & No. Second District
Docket No. 2-12-1156
Filed August 15, 2017
Decision Under Appeal from the Circuit Court of Kane County, No. 07-CF-2986; the
Review Hon. Timothy Q. Sheldon, Judge, presiding.
Judgment Reversed and remanded with directions.
Counsel on Michael J. Pelletier, Thomas A. Lilien, and Jeffrey B. Kirkham, of
Appeal State Appellate Defender’s Office, of Elgin, for appellant.
Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick
Delfino, Lawrence M. Bauer, and Joan M. Kripke, of State’s
Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE BIRKETT delivered the judgment of the court, with
opinion.
Justices Hutchinson and Spence concurred in the judgment and
opinion.
OPINION
¶1 This case returns to us following a supervisory order of our supreme court directing us to
vacate our most recent decision and to reconsider our analysis in light of People v. Cherry,
2016 IL 118728. Procedurally, then, we are in the position of considering the case on remand
from the supreme court following its reversal of our decision in the second appeal of
defendant, Mark A. Downs. In the first appeal, People v. Downs, 2012 IL App (2d) 100755-U(Downs I), defendant appealed the trial court’s dismissal, during the first stage of a Krankel
hearing (see People v. Krankel, 102 Ill. 2d 181 (1984)), of his posttrial claims of ineffective
assistance of trial counsel. We reversed the dismissal because the trial court erroneously
converted the Krankel preliminary inquiry into an adversarial hearing on the merits, in which
the State actively participated and defendant was required to represent himself without benefit
of counsel. Before the flawed Krankel hearing, the trial court noted that some of defendant’s
allegations raised issues of possible neglect by his trial counsel, but, after the hearing, it
dismissed all of defendant’s claims. We remanded the cause, directing the trial court to appoint
counsel and to continue the case from that point. Downs I, 2012 IL App (2d) 100755-U,
¶¶ 50-51.
¶2 On remand, the trial court appointed counsel (Krankel counsel) and held a Krankel hearing.
Krankel counsel adopted only a general claim of ineffective assistance of trial counsel and
declined to adopt any of defendant’s specific allegations. The trial court again dismissed
defendant’s allegations, and defendant again appealed.
¶3 In the second appeal, defendant contended that Krankel counsel was ineffective in
conducting the second Krankel hearing. Defendant also, for the first time in the case,
challenged the trial court’s definition of proof beyond a reasonable doubt in response to the
jury’s question to the court: “What is your definition of reasonable doubt, 80%, 70%, 60%?”
We addressed the reasonable-doubt issue and laid the Krankel issue to the side. People v.
Downs, 2014 IL App (2d) 121156, ¶ 15 (Downs II). In Downs II, we held that the trial court
erred in responding to the jury’s question and that there was a reasonable likelihood that
defendant’s conviction did not satisfy the beyond-a-reasonable-doubt standard. Id. ¶ 31. The
State appealed, and our supreme court reversed, holding that the trial court appropriately
responded to the jury’s question and reiterating that a court should refrain from attempting to
define reasonable doubt. People v. Downs, 2015 IL 117934, ¶¶ 24, 32 (Downs III). The
supreme court then remanded the cause to this court to allow us to consider the Krankel issue.
Id. ¶ 34.
¶4 Upon that remand, we considered the conduct of Krankel counsel during the second
Krankel hearing. People v. Downs, 2016 IL App (2d) 121156-B (Downs IV). In brief, we
accepted defendant’s contention that Krankel counsel had abandoned his role as counsel and
therefore was ineffective. See Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)
(counsel is ineffective if (1) his or her performance fell below an objective standard of
reasonableness and (2) prejudice resulted, meaning that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different). In Downs IV, we concluded that, because Krankel counsel abandoned his role as
counsel, prejudice could be presumed. See United States v. Cronic, 466 U.S. 648, 656-57
(1984) (prejudice may be presumed in limited circumstances, such as where counsel
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effectively provides no representation). The State appealed this ruling and, on November 23,
2016, our supreme court entered the following order:
“In the exercise of this Court’s supervisory authority, the Appellate Court, Second
District, is directed to vacate its judgment in [Downs IV]. The appellate court is
directed to consider the effect of this Court’s opinion in [Cherry, 2016 IL 118728], on
the issue of whether Krankel counsel’s performance was constitutionally adequate
under Strickland, and determine if a different result is warranted.” People v. Downs,
No. 121100 (Ill. Nov. 23, 2016) (supervisory order).
¶5 Accordingly, pursuant to our supreme court’s supervisory order, we vacate our judgment
in Downs IV, 2016 IL App (2d) 121156-B, and return to the procedural position following
Downs III’s reversal and remand directing us to consider defendant’s claim of ineffective
assistance of Krankel counsel; this time, however, we have the benefit of our supreme court’s
decision in Cherry.
¶6 In this appeal, we will consider defendant’s challenge to the conduct of Krankel counsel at
the second Krankel hearing. Defendant argues that Krankel counsel was ineffective because he
abdicated his role to represent defendant when he abandoned defendant’s specific claims of
ineffective assistance of trial counsel. We reverse and remand the cause.
¶7 I. BACKGROUND
¶8 In Downs I, we provided a full account of the events underlying the case. In Downs II, we
summarized those events. In light of both of these factual summaries, we need not reprise the
substantive facts of the offense; instead, we will provide an outline of the evidence as
necessary and focus on the procedures now at issue.
¶9 In April 2009, defendant was convicted of the first degree murder (720 ILCS 5/9-1(a)(1)
(West 1996)) of six-year-old Nico Contreras. Early in the morning of November 10, 1996,
Nico was shot while he slept. The intended target was Robert Saltijeral, Nico’s uncle, who was
a member of the Latin Home Boys gang. The shooter was supposed to be Ruben Davila,
accompanied by defendant and Elias Diaz, who were members of the Almighty Ambrose gang.
A week before Nico’s death, Davila’s car had been shot up by Latin Home Boys gang
members; Davila and defendant were tasked by the Almighty Ambrose gang to shoot Saltijeral
to pay back the Latin Home Boys for shooting at Davila. According to Davila's testimony,
Davila balked and defendant shot at the house, ultimately killing Nico.
¶ 10 Davila and Alejandro Solis testified at defendant’s trial. Davila received an incredibly
lenient plea deal to testify against defendant. Davila admitted to the murder of Jose Yepiz,
which occurred a few weeks after Nico’s murder, along with a number of other shootings.
Davila was charged only with aggravated discharge of a firearm in the Yepiz murder and
received a recommendation to be placed in a boot camp program or, if he failed to satisfactorily
complete the program, to receive an eight-year sentence. Additionally, Davila received nearly
$39,000, paid to him or paid on his behalf for expenses and to support his family in Mexico.
¶ 11 Solis denied that he received a quid pro quo deal in exchange for his testimony; rather, he
testified that he cooperated because he believed that it was the right thing to do and it cleared
his conscience. Still, even in the absence of an explicit deal, a 2½-year term of imprisonment
was vacated, and Solis was resentenced to a 30-month term of probation instead. Solis also
received $5000 to pay a child support arrearage allowing his release from incarceration, and he
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was paid $3200 for working as an informant, some of which was paid for information relating
to Nico’s murder.
¶ 12 Based on Davila’s and Solis’s descriptions of Nico’s murder, defendant was convicted of
the murder. 1 Following the verdict, but before the sentencing, defendant filed two pro se
motions alleging that his trial counsel had provided ineffective assistance. Defendant’s second
motion incorporated all of the allegations from the first motion and added more allegations.
Defendant’s second motion was 60 pages in length and contained 34 allegations. On July 31,
2009, pursuant to Krankel, the trial court appointed Krankel counsel, but it had not yet held a
preliminary inquiry into the factual bases of defendant’s allegations. On October 27, 2009,
Krankel counsel filed a second amended motion on defendant’s behalf, adopting five of
defendant’s pro se allegations. On November 25, 2009, defendant filed a third pro se motion,
alleging 13 additional claims of ineffective assistance.
¶ 13 Among the five claims that Krankel counsel adopted were two claims pertinent here: (1)
trial counsel ignored or refused defendant’s request to choose a bench trial and (2) trial counsel
failed to sufficiently investigate and present defendant’s alibi defense. In submitting
defendant’s second amended motion alleging ineffectiveness of trial counsel, Krankel counsel
stated with respect to the bench-trial claim:
“Counsel adopts in part and amends Defendant’s #11, to wit: ‘On first and second
day of trial defendant asked (trial) counsel to dismiss the Jury and instead continue with
a Bench Trial, but counsel ignored defendant.’ Defendant acknowledges that once the
trial had begun the decision to waive defendant’s jury right reverts to the discretion of
the court (People v. Zemblidge, 104 Ill. App. 3d 654 *** (1982)), however, trial
counsel never brought Defendant’s request to the attention of the court. Defendant
alleges that trial counsel’s failure to allow defendant’s request to be considered by the
Court not only constitutes error under Strickland’s first prong, but also establishes
prejudice to Defendant’s cause so severe that under Strickland’s second prong that but
for counsel’s unprofessional error, the result of the proceeding would have been
different.”
On the alibi issue, Krankel counsel stated:
“Counsel adopts in part and amends Defendant’s #4, to wit: Patricia Serrano
[(defendant’s sister)] was not called to testify to an alibi defense asserted to trial
counsel by Defendant. Defendant alleges that Ms. Serrano’s testimony would have
eviscerated the State’s evidence. Trial counsel’s failure to call Ms. Serrano to testify
not only constitutes error under Strickland’s first prong, but also establishes prejudice
to Defendant’s cause so severe that under Strickland’s second prong that but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
A copy of Ms. Serrano’s sworn, notarized statement labeled affidavit filed [sic]
stamped September 8 is attached as Exhibit B-1 thru [sic] B-3.”
1
During the jury’s deliberations, it first requested the transcripts of four witnesses’ testimony; it
later asked the trial court how it defined reasonable doubt: “80%[,] 70%[, or] 60%?” The trial court
responded to the reasonable-doubt question, but none of the transcripts had been provided before the
jury reached its verdict. Downs III resolved the issue arising from the reasonable-doubt question, and
we note these circumstances for completeness.
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¶ 14 As noted, counsel adopted three of defendant's other pro se allegations of ineffective
assistance of trial counsel. Specifically, counsel adopted (1) the allegation that trial counsel did
not allow defendant to see certain pages of discovery and any pages of supplemental discovery,
(2) the allegation that trial counsel made defendant sign stipulations without allowing
defendant the opportunity to read and assent to the stipulations, and (3) the catch-all allegation,
without describing any specific instances, that trial counsel’s performance was deficient.
Neither the discovery nor the stipulation issue has been raised in this appeal.
¶ 15 At the hearing on Krankel counsel’s second amended motion, the trial court, on its own
initiative and purportedly based on a recent Rule 23 order in another case, reconsidered the
procedure it was going to follow. The trial court believed that, in conducting the preliminary
inquiry into the factual bases of defendant’s allegations, it was required to first allow defendant
to discuss his allegations, without legal representation. The trial court thus rescinded Krankel
counsel’s appointment and ordered defendant to present his pro se allegations. In the
procedure that followed, defendant would first read and elaborate on an allegation, trial
counsel was invited to comment and argue against defendant’s allegation, the State was invited
to offer its argument in support of trial counsel and against defendant’s allegation, and
defendant was given an opportunity to have the last word in support of his allegation. In this
fashion, the trial court thus converted the preliminary inquiry into an adversarial hearing on the
merits of each allegation, during which defendant was not allowed to have legal representation.
¶ 16 In discussing the bench-trial allegation, defendant averred that, on the first and second days
of the jury trial, defendant informed trial counsel that he wanted to dismiss the jury and
proceed with a bench trial for the balance of the proceedings. Defendant asserted that trial
counsel completely ignored him and that the jury trial proceeded to completion,
notwithstanding defendant’s expressed wishes. The trial court sought trial counsel’s
commentary on the allegation. Trial counsel explained that he acknowledged defendant’s
requests to convert the jury trial into a bench trial and then proceeded to talk defendant out of
his desire on each day. Trial counsel noted that Diaz had been convicted by the same trial court
at a bench trial and that defendant’s jury trial involved essentially the same evidence as that
presented during Diaz’s bench trial. Trial counsel believed that it was extremely likely that,
based on the same evidence, the trial court would return a guilty finding if the proceedings
were converted into a bench trial. Trial counsel explained this to defendant and defendant
seemed to acquiesce to this reasoning. Trial counsel noted that he believed that, had he not
tried to talk defendant out of converting the proceedings into a bench trial, he would have been
ineffective. Trial counsel also explained that defendant was never “insistent” about converting
the proceedings into a bench trial; for his part, defendant stated that he was “almost 100 percent
certain” that he wanted a bench trial. The trial court specifically dismissed this allegation,
holding:
“defendant has argued that it should have been a bench trial; and his attorney countered
by saying the Court tried Elias Diaz at bench trial and found Elias Diaz guilty on a
bench trial. Defense trial strategy was sound in that this Court had already heard that
evidence regarding Elias Diaz and found the evidence credible and believable and
relevant and found Elias Diaz guilty.
It would have been bad trial strategy to go and retry [defendant] in front of this
Court in that this Court had already found Elias Diaz guilty. That is trial strategy. The
Court agrees with that as sound trial strategy.”
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¶ 17 Regarding the alibi allegation, defendant claimed that he was at work at the time of the
murder. According to defendant, his sister (Patricia Serrano) and his brother (Chris Downs)
were willing to testify in support of defendant’s alibi. Patricia had averred that both defendant
and Chris were living with her on the date of the murder. She recalled driving them to work at
Borg-Warner in West Chicago during the holiday season, where both brothers were working in
temporary seasonal positions. She further averred that the brothers’ shifts began at 6 p.m. and
ended at 6 a.m. and that their usual workdays coincided with the date of the murder. In
addition, she particularly remembered the date of the murder because on November 11, the day
following the murder, she and her brothers traveled to Iowa and spent the ensuing week there.
She also averred that trial counsel did not investigate her alibi information. Trial counsel
explained that he contacted Borg-Warner looking for employment records from the time
around the date of the murder. Trial counsel explained that he spoke to two different lawyers at
Borg-Warner, which he believed to be a benefit, because the two different people would
approach the issue differently and possibly turn up the information he was seeking. However,
trial counsel consistently learned that records for defendant were not available because the
company simply did not keep records for temporary employees for such a length of time. Trial
counsel also stated that no alibi had been developed contemporaneously with the offense and
he believed that, as a matter of strategy, an alibi developed 10 years later would appear to be
fabricated and would harm defendant’s case. The State chimed in, noting that, during the initial
murder investigation, defendant was questioned and did not raise a work alibi; instead,
defendant admitted that he was with Davila at the time around the offense. The trial court ruled
that this was a matter of trial strategy, stating that “going forward on a different type of
defense, an alibi, would have been damaging” to defendant’s defense.
¶ 18 Defendant also specifically challenged trial counsel’s failure to call Chris in support of his
alibi defense. Trial counsel commented that Chris had provided a number of different versions
of his proposed trial testimony. As a result of the inconsistencies, trial counsel believed that
Chris would not be a credible witness. Additionally, trial counsel noted that Chris had never
provided any information related to defendant’s work alibi. The State added that Chris’s
testimony at the Diaz trial locked him into a version that did not include defendant’s work alibi
and would have controverted the statements in Patricia’s affidavit. The trial court held that the
failure to call Chris to testify was a matter of trial strategy, due to the multiple versions of his
proposed testimony he provided to trial counsel.
¶ 19 Defendant specifically challenged trial counsel’s investigation of the evidence Patricia
would have provided, as well as his decision not to call her as a witness during the trial. Trial
counsel indicated that he had several discussions with Patricia, but he believed that, because in
2007 she could not provide objective evidence that she and defendant visited Iowa beginning
November 11, 1996, her testimony would not have been sufficient to solidly establish
defendant’s alibi. The State agreed with trial counsel’s assessment. The trial court held that
Patricia would have been an uncertain witness and that the decision whether to call her was a
matter of trial strategy.
¶ 20 We also note that Krankel counsel did not adopt defendant’s allegation about Juan “Baby”
Acevedo. Defendant alleged that Evangelina Hernandez told police that “Baby” had told her
that “Too Tall” (Davila) had been the only person whom Baby observed running from the
scene of the shooting. Defendant stated that he provided trial counsel with Acevedo’s identity
and nickname but that trial counsel did not investigate or subpoena Acevedo for trial
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testimony. Trial counsel explained that Hernandez’s information was only hearsay and that
Hernandez could not provide him with Baby’s identity; additionally, she appeared to disavow
her statement to police about him. Trial counsel did not address defendant’s allegation about
giving him Baby’s identity. The State noted that a police report characterized Hernandez’s
statement as a rumor she had heard; further, the State indicated that Hernandez was unable to
identify Baby as Acevedo. The trial court held that the information about Acevedo “was only
rumors. There was no substantial testimony that could be elicited. Ms. Hernandez did not
remember any person by the name of ‘Baby’, and that was a dead end; and it was not
ineffective assistance of counsel not to go any further on that.”
¶ 21 Following its newly adopted procedure, the trial court individually addressed each of
defendant’s claims, determining that there was no basis to believe that trial counsel had
provided ineffective assistance. The trial court then ruled that there was no basis to continue
the Krankel inquiry and to appoint counsel to represent defendant on any of his claims.
Effectively, the trial court dismissed defendant’s claims.
¶ 22 Defendant appealed, and we determined that the trial court improperly allowed the State to
actively participate in arguing against defendant’s allegations of ineffective assistance, thereby
effectively converting what should have been the preliminary Krankel inquiry into an
adversarial hearing on the merits of defendant’s allegations. See generally Downs I, 2012 IL
App (2d) 100755-U. Thus, we remanded the cause and directed the trial court to appoint
counsel to represent defendant on his allegations. Id. ¶ 51 (“Accordingly, on remand, the trial
court is to return to its initial position, namely, the appointment of a new attorney to represent
defendant on his claims of ineffective assistance, and allow that attorney to adopt and flesh out
any of defendant’s contentions that he or she believes to be indicative of potential neglect,
much as the new attorney had already done before the trial court rescinded the appointment.”).
In providing this direction, we expected that, upon remand, Krankel counsel would resubmit
the second amended motion and litigate on behalf of defendant the potentially meritorious
matters that counsel had already identified. Our expectation, unfortunately, was not met.
Finally, in Downs I, we did not consider the merits of defendant’s allegations; instead, we
instructed the court to proceed from the point at which Krankel counsel was appointed and to
allow counsel to conduct his or her own investigation of defendant’s allegations. Id. ¶ 52.
¶ 23 On remand, the trial court reappointed the same Krankel counsel that it had initially
appointed. On October 3, 2012, Krankel counsel filed a third amended motion, this time
declining to adopt four of the five allegations that he had previously adopted. As relevant here,
counsel expressly declined to adopt the bench-trial claim and the alibi claim. Explaining his
rejection of the bench-trial claim, Krankel counsel stated:
“Counsel declines to adopt Defendant’s #11. Defendant’s allegation that ‘On first
and second day of trial defendant asked (trial) counsel to dismiss the jury and instead
continue with a Bench Trial, but counsel ignored defendant’ was answered by Trial
Counsel’s response during the October 28, 2009, hearing. It is clear to Krankel counsel
from the colloquy found in the October 28th transcript (Exhibit B, page 53 line 18 thru
[sic] Page 56, line 23) that Defendant’s concern was not ignored by trial counsel. Trial
Counsel recalls clearly that all discussions with Defendant concerning the matter were
resolved with an agreement that waiving jury ‘would be a really bad idea.’ Defendant
acknowledges that once the trial had begun the decision to waive defendant’s jury trial
right reverts to the discretion of the court (People v. Zemblidge, 104 Ill. App. 3d 654-7-
*** (1982)), however, in this case the colloquy reveals that while there was a vigorous
discussion concerning the merit of asking the court to dismiss the jury, there is no
record nor remembrance by any of the parties involved that the issue was brought to the
attention of the Court. The October 28th colloquy establishes that discussion was held
between Defendant and Trial Counsel on several occasions, but there is no clear
indication that defendant was in such disagreement with his counsel that he insisted
that the issue be brought to the attention of the court and the record does not reveal any
independent effort by Defendant to do so. Therefore, absent the issue being brought to
the attention of the Court for consideration under Zemblidge, and no establishment of
counsel’s failure to address Defendant’s concerns, nothing is offered here that indicates
anything more than a disagreement with counsel’s strategy and tactics in conducting
the trial thus failing to establish error under Strickland’s first prong.”
¶ 24 On his rejection of the alibi claim, Krankel counsel stated:
“Counsel declines to adopt Defendant’s #4 and offer Patricia Serrano’s sworn and
notarized statement file stamped September 8, 2009, attached as Exhibit F-1 thru [sic]
F-3. Trial counsel’s responses offered at the hearing on October 28, 2009, inform that
he conducted multiple conversations with Ms. Serrano prior to Defendant’s trial and at
no time did she offer counsel the basis for an alibi defense that could be confirmed.
While the Patricia Serrano affidavit signed and dated August 20, 2009, and filed [sic]
stamped September 8, 2009, may have substance in other venues, nothing is offered by
Defendant via the affidavit that a confirmable alibi was asserted to or available to trial
counsel prior to the time of trial. The burden falls upon the defendant to show why trial
counsel’s decision was not sound trial strategy. His decision to not pursue defendant’s
alibi claim through Patricia Serrano’s potential testimony clearly falls into the arena of
trial strategy. Defendant offers nothing here that indicates anything more than a
disagreement with counsel’s strategy and tactics in conducting the trial thus failing to
establish error under Strickland’s first prong.”
¶ 25 Krankel counsel also “decline[d] to adopt” defendant’s allegations concerning discovery
and the coerced, unreviewed stipulations. However, Krankel counsel reluctantly incorporated
defendant’s catch-all allegation of ineffectiveness into the third amended motion:
“[Krankel] Counsel is disposed to decline to adopt Defendant’s #32 as Defendant’s
assertion of overall deficient performance by trial counsel is unsupported by specific
examples. The burden falls upon the defendant to show why trial counsel’s actions
were not a product of sound trial strategy or tactic [sic]. Defendant offers nothing here
that indicates anything more than a disagreement with [trial] counsel’s strategy and
tactics in conducting the trial and a generalized expression of prejudice. Thus, in
counsel’s mind Defendant fails to establish error under Strickland’s first prong.
HOWEVER, in this instance, the best judgment of trial counsel’s overall performance
lies with the Court which had the ability to observe [trial] counsel throughout the trial.
Therefore, ‘Krankel counsel’ adopts in part defendant’s allegation #32 which states in
relevant part: ‘In the adversarial process, counsel made errors so serious that counsel
was not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Counsel’s deficient performance prejudiced the defense.’ ”
¶ 26 Thus, in the third amended motion, Krankel counsel raised only a general charge of
ineffective assistance of trial counsel, and this claim did not allege any specific acts that
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constituted neglect or deficient representation. Likewise, the claim did not allege any specific
prejudice accruing to defendant.
¶ 27 Also in the third amended motion, Krankel counsel explained the procedure he employed
in carrying out his assignment. He first briefly outlined what he believed the Krankel
procedure to be, purportedly relying on Downs I. According to Krankel counsel, the entire
Krankel procedure is a three-step process: (1) the trial court reviews the defendant’s pro se
allegations of ineffectiveness of trial counsel, during which review Krankel counsel need not
be appointed and the trial court may discuss the allegations with the defendant and his or her
trial counsel; (2) if, after the initial review, the trial court determines that any of the allegations
presents the gist of a concern that trial counsel neglected the defendant’s case, a new attorney
may be appointed as Krankel counsel “to investigate and represent [the] Defendant’s
claim(s)”; and (3) once Krankel counsel has completed his or her investigation, he or she
presents the results to the trial court, and then: (a) if Krankel counsel has determined that any of
the allegations is potentially meritorious, “a hearing will be scheduled to allow [Krankel]
counsel to serve as [the] Defendant’s Adversary [sic, presumably Krankel counsel meant
“Advocate” or “Attorney”]”; or (b) “If no basis for pursuit of [the] Defendant’s claim(s) is
found, [Krankel] counsel should advise [the] court of his/her findings in a form sufficient to
allow the Court to issue a ruling on [the] Defendant’s allegations.”
¶ 28 Krankel counsel also averred that, after being reappointed to represent defendant, he
modeled his investigation into defendant’s pro se allegations of ineffectiveness on the
Post-Conviction Hearing Act (725 ILCS 122-1 et seq. (West 2012)) and Illinois Supreme
Court Rule 651 (eff. Apr. 26, 2012). In the third amended motion, Krankel counsel averred that
he “(1) consulted sufficiently with Defendant to ascertain his allegations of ineffectiveness, (2)
has reviewed and considered Defendant’s written filings, (3) has examined the trial transcript,
and (4) reviewed the transcripts of the hearings held on October 28, 2009, November 25, 2009,
and December 28, 2009.” The hearings held in October, November, and December 2009
constituted the flawed Krankel hearing that was the subject of Downs I. Krankel counsel
placed a clear emphasis on the information derived from the transcripts of that hearing:
“[T]he information provided by all participants during the hearings became an
invaluable resource for this counsel’s investigation in preparing the instant motion.
Although not sworn, the statements made were offered in open court and thus Krankel
counsel found them to be reliable with respect to determinations made in the context of
this motion.”
¶ 29 At an October 19, 2012, hearing before the trial court, defendant contradicted Krankel
counsel’s representations:
“[Defendant]: On page three of [Krankel counsel’s] motion, he claims counsel has
consulted sufficient[ly] with the defendant to ascertain allegations of ineffectiveness.
Counsel has not consulted with me about a single allegation before filing his motion on
October 3rd.
***
THE COURT: You don’t think that [Krankel counsel] has conferred with you long
enough?
[Defendant]: No, he hasn’t spoken to me—I have tried speaking to him already, but
he hasn’t spoken to me about a single allegation that I have been trying to file. I asked
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him to get some affidavits that were unsworn to be sworn, and he hasn’t done none [sic]
of that for me. He hasn’t interviewed anybody, any of my alibi witnesses.
THE COURT: What do you wish for me to do?
[Defendant]: Well, after a very brief discussion here with this Court on September
14th, I [told] [Krankel counsel] that I wanted to make sure all my issues with trial
counsel representation were heard. I informed him that I had other issues that I wanted
to be addressed. I told him we need to get the unsworn affidavits notarized or sworn to.
[Krankel counsel] told me he would be willing to include any issues I wished in my
amended motion.
[Krankel counsel] sought a continuance under the pretense that he was going to
review the transcripts and contact witnesses I believe should have been called to testify
at my trial. The continuance was granted, and the case was continued to October 4th.
When it came to court on October 4th, [Krankel counsel] completely blindsided me
with this motion, and today we are here to argue it. [Krankel counsel’s] representation
this far amounts to no representation at all.
Originally in 2009 [Krankel counsel] adopted five of my issues. Now [Krankel
counsel] seems to adopt only one issue, paragraph 33. I don’t see any specifics on
[Krankel counsel’s] part. The language he adopts is real general.
To my knowledge, [Krankel counsel] has not contacted any of the witnesses. He
has not visited me to discuss my case in length. Further, throughout his motion, he
states I failed to sustain my burden. The last time I checked, the purpose of an advocate
was to aid the defendant in meeting his burden, something [Krankel counsel] has not
attempted to do.
***
THE COURT: [(speaking directly to Krankel counsel)] Do you think that I should
continue this case so you can talk to [defendant] to see if there should be more
conversation, more review, and more allegations?
[Krankel counsel]: No, Your Honor. I believe that when I make the statement that I
have consulted with him sufficiently, that means that I have reviewed all of the
allegations; and I have done it twice now. I did it once in 2009.
To be honest and fair about this case, I went back through all of the allegations that
he raised, both the original filing and the supplementary filing, which you approved
sometime later on just before we went into that first hearing, and you rescinded my
appointment the first time.
THE COURT: That was because of People v. Paul Gilmore. I had you on the case.
I got the decision that Gilmore says—the Gilmore panel sent Gilmore back because
there was a lawyer, and they said he wasn’t supposed to have a lawyer. So I took you
out of the case, and then the Downs [I] panel says where is his lawyer? I am going to
listen to [the State], too. You go ahead and tell me.
[Krankel counsel]: As I explained in the first filed memo—I didn’t include it in the
second—basically what I did was I adopted the procedure—since you appointed me,
that’s clear in Krankel, the progeny in Krankel [sic], that appointing a lawyer to—it
says to investigate and present to The Court and represent the defendant.
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As an officer of the court, I have an obligation not to bring forth allegations that
don’t make sense, that don’t make sense and don’t meet standards. Especially in this
case we are talking about Strickland standards, the first prong of Strickland, and it’s
well settled that a difference between a client and his trial attorney over tactics and
strategies is not sufficient to bring that forward as an allegation of ineffective
assistance.
I adopted the procedure. Although it’s not required by any Krankel progeny or
Krankel itself, I adopted the procedure that we normally [adopt] at a post conviction
hearing, that sort of process. It doesn’t specify how much contact I have to have with a
client.
With the amount of material, as The Court well knows and I know the State well
knows, that he presented to begin with, all the writings, and in addition—in addition I
had the full transcript of all three of the hearings in October, November, and December
of 2009, and to me that was an incredibly specific and detailed investigative tool, and
there is nothing in those transcripts, especially on the four that I declined to proceed
with this time that I had not [sic] adopted the first time.
There is nothing that I found in those transcripts during that hearing—these were
open court statements. He had a chance to respond. So I considered his responses, as
well as the responses of trial counsel. None of those were determinative in terms of
what I presented here in this third amended motion. I felt like I have examined all of
these allegations, and what I am bringing forward I believe is the proper way to
proceed.
[Defendant] in our conversations has some issues that may have some substantive
weight, but those are considerations for an appeal, not for a Krankel hearing, not for an
ongoing motion to determine whether or not the trial counsel was ineffective or not,
because all of these relate almost entirely to disagreements between him and trial
counsel, and I believe that with the transcripts of those hearings that I have enough
information to present to [the] court the motion as it is right now.”
¶ 30 The trial court then elicited argument about whether to allow defendant to once again
represent himself during the Krankel hearing on the third amended motion. Apparently, the
trial court took defendant’s statement that Krankel counsel had not spoken with him about
filing the third amended motion as another complaint that he had received ineffective
assistance, this time from Krankel counsel. With this understanding, the trial court ruled:
“I find from what [Krankel counsel] has said that he has investigated. He has done
extensive investigation. He has had what most lawyers don’t have. He has the benefit
of being able to review the entire transcript of when all these issues were presented
once before. He has got the benefit of reviewing those allegations, reviewing the
testimony, and to investigate to see if there is any merit.
I think that he has done a fine job in that regard. He got material that would not be
available normally on a hearing of this nature. I have the utmost confidence in his
ability. He is provided to you at tax payers’ expense outside the budget of the Kane
County Public Defender’s Office.
So I will proceed today finding that he has done his investigation.”
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¶ 31 The foregoing colloquy raised the issue of whether, before filing the third amended motion,
Krankel counsel actually consulted with defendant about his pro se allegations of ineffective
assistance of trial counsel. When asked to elaborate about the motion’s statement that he had
consulted with defendant, Krankel counsel retrenched and admitted that, rather than speaking
with defendant, he reviewed the available transcripts in investigating defendant’s pro se
allegations.
¶ 32 The trial court then had Krankel counsel and the State argue the third amended motion. The
trial court held that the motion did not support any claim of ineffective assistance of trial
counsel, because it did not allege either specific acts of deficient performance or specific
examples of prejudice. The motion was denied.
¶ 33 Defendant appealed, and we decided the appeal solely on the jury-question issue. Downs
II, 2014 IL App (2d) 121156, ¶ 42. Our supreme court reversed our decision on the
jury-question issue and remanded the cause to this court, ordering us to consider defendant’s
Krankel issue. Downs III, 2015 IL 117934, ¶ 34. We complied and issued our decision in
Downs IV, in which we concluded that Krankel counsel had abdicated his role as counsel,
resulting in the presumption of prejudice accruing from counsel’s deficient representation.
Downs IV, 2016 IL App (2d) 121156-B, ¶ 56. The State appealed our judgment in Downs IV,
and the supreme court denied the State’s petition for leave to appeal, but in the exercise of its
supervisory authority, it directed us to vacate our opinion in Downs IV and to reconsider
defendant’s arguments in light of Cherry, 2016 IL 118728. People v. Downs, No. 121100 (Ill.
Nov. 23, 2016) (supervisory order).
¶ 34 On December 28, 2016, defendant filed a motion for leave to file a supplemental brief to
consider the effect, if any, of Cherry on our consideration of his claims. The State had no
objection, so long as it was permitted to file a response. We granted defendant’s motion and
ordered supplemental briefing to consider Cherry. Defendant has submitted his supplemental
brief, the State has submitted its supplemental response brief, and defendant has submitted his
supplemental reply brief.
¶ 35 Therefore, in accord with our supreme court’s instructions, we now vacate Downs IV and
return to the procedural position we were in following Downs III: considering defendant’s
contentions regarding the second Krankel hearing, but this time in light of Cherry.
¶ 36 II. ANALYSIS
¶ 37 In this appeal, we consider defendant’s claim that Krankel counsel provided ineffective
assistance. Defendant argues that Krankel counsel effectively abdicated his role as defendant’s
counsel by abandoning all of defendant’s specific allegations of ineffective assistance of trial
counsel in the third amended motion even though he had adopted four such claims in the
second amended motion. Defendant further contends that prejudice may be presumed from the
abandonment because it resulted in the failure to subject trial counsel’s conduct to any
meaningful adversarial testing and effectively deprived him of the benefit of counsel. In our
view, the primary issue in this case is whether prejudice may be presumed, as in Cronic, or
whether defendant must demonstrate prejudice under Strickland. To get to that point, we must
first consider the contours of proving an ineffective-assistance claim.
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¶ 38 A. Ineffective-Assistance Claims and Their Review
¶ 39 Generally, a claim of ineffective assistance of counsel is considered under the familiar
Strickland standard. Cherry, 2016 IL 118728, ¶ 24. Under the Strickland standard, in order to
prevail on a claim of ineffective assistance, the defendant must show both that counsel’s
performance was deficient and that counsel’s deficient performance prejudiced the defendant.
Id. In other words, the defendant must demonstrate that counsel’s performance fell below an
objective standard of reasonableness and that, but for counsel’s unprofessional errors, there is a
reasonable probability that the result of the proceeding would have been different. Id. The
defendant must satisfy both the deficient-performance and prejudice elements of the Strickland
standard; if the defendant fails to satisfy either element, he or she cannot prevail on his or her
claim. Id.¶ 40 There are, however, certain instances in which prejudice need not be shown, but will be
presumed. Id. ¶ 25. Prejudice may be presumed where (1) the defendant is denied counsel at a
critical stage of the proceedings, (2) counsel entirely fails to subject the State’s case 2 to
meaningful adversarial testing, or (3) counsel is called upon to represent a client in
circumstances under which no lawyer could provide effective assistance. Id. In particular, “the
second Cronic exception applies when ‘counsel’s effectiveness has fallen to such a low level
as to amount not merely to incompetence, but to no representation at all.’ ” Id. ¶ 26 (quoting
People v. Caballero, 126 Ill. 2d 248, 267 (1989)). However, the circumstances under which
prejudice may be presumed occur only rarely. Id. For example, discussing the meaningful-
adversarial-testing exception, our supreme court identified only two cases in which it found
that a defendant successfully invoked the exception. Id. ¶¶ 27-28. Thus, our supreme court
cautioned that the exception will be successfully invoked only rarely and in extreme
circumstances. Id. ¶¶ 26-29.
¶ 41 The State suggests that there is no authority for the proposition that the performance of
Krankel counsel should be subject to a Strickland analysis. While it is true that, in his original
brief, defendant did not cite any case in which ineffective assistance was alleged against
Krankel counsel and a Strickland analysis was applied, this argument is neither serious nor
meritorious. First we note that, in this case, Krankel counsel was appointed to represent
defendant on a posttrial motion. A posttrial motion has long been held to be a critical part of the
criminal proceeding, and, as a result, the defendant is still entitled to constitutionally effective
assistance of counsel. See People v. Abdullah, 336 Ill. App. 3d 940, 950 (2003) (a posttrial
motion is a critical part of the criminal proceeding, to which the defendant’s constitutional
right to the assistance of counsel attaches). The State cannot maintain any pretense that
Krankel counsel’s performance cannot be subject to the constitutional standards set forth in
Strickland. On a more pragmatic level, the contention is squarely refuted by Cherry, in which
our supreme court applied a Strickland analysis to a claim of ineffective assistance of Krankel
counsel. Cherry, 2016 IL 118728, ¶¶ 23-33. While we are not sure that this is a serious
2
Cronic arose in the context of an allegation that trial counsel was ineffective for failing to subject
the State’s case to meaningful adversarial testing. Here, the ineffectiveness at issue is on the part of
Krankel counsel, who was charged with presenting allegations of ineffectiveness of trial counsel.
Therefore, in the Krankel context, Krankel counsel is alleged to have failed to subject trial counsel’s
actions to meaningful adversarial testing, as trial counsel (and no longer the State) is the defendant’s
true opponent.
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contention raised by the State, to the extent that it is, it is without merit.
¶ 42 B. The Krankel Process
¶ 43 As it has developed, a Krankel inquiry proceeds in two stages. In the first stage, the trial
court examines the factual bases of the defendant’s pro se claims of ineffective assistance of
trial counsel. People v. Moore, 207 Ill. 2d 68, 77-78 (2003). If, in this preliminary inquiry, the
trial court determines that the claims lack merit or pertain only to matters of trial strategy, then
it need not appoint new counsel and may deny the defendant’s pro se motion. Id. at 78. If,
however, the claims show possible neglect on trial counsel’s part, the trial court will appoint
new counsel. Id. Following the appointment of new counsel (i.e., Krankel counsel), the matter
proceeds to the second stage of the Krankel inquiry. Id. The second stage consists of an
adversarial and evidentiary hearing on the defendant’s claims, and during this hearing the
defendant is represented by Krankel counsel. People v. Flemming, 2015 IL App (1st)
111925-B, ¶ 82.
¶ 44 While the foregoing adequately outlines the overall Krankel process, it does not define the
obligations of Krankel counsel during the second stage of the Krankel inquiry. Indeed, the
State vigorously argues that Krankel counsel’s role is to “independently evaluate the
defendant’s claim.” Moore, 207 Ill. 2d at 78. This argument is made in service of the entirely
appropriate position of supporting the trial court’s judgment (and, by consequence, Krankel
counsel’s actions). However, by truncating the relevant passage, the State overlooks the
context of Moore’s discussion of the Krankel process.
¶ 45 Moore analyzed the trial court’s refusal to consider the defendant’s pro se allegations of
ineffectiveness of trial counsel contained in a motion for the appointment of counsel other than
the public defender. Id. at 70. In noting that Krankel applied to the defendant’s pro se
allegations, Moore discussed the overall Krankel process:
“In interpreting Krankel, the following rule developed. New counsel is not
automatically required in every case in which a defendant presents a pro se posttrial
motion alleging ineffective assistance of counsel. Rather, when a defendant presents a
pro se posttrial claim of ineffective assistance of counsel, the trial court should first
examine the factual basis of the defendant’s claim. If the trial court determines that the
claim lacks merit or pertains only to matters of trial strategy, then the court need not
appoint new counsel and may deny the pro se motion. However, if the allegations show
possible neglect of the case, new counsel should be appointed. [Citations.] The new
counsel would then represent the defendant at the hearing on the defendant’s pro se
claim of ineffective assistance. [Citations.] The appointed counsel can independently
evaluate the defendant’s claim and would avoid the conflict of interest that trial counsel
would experience if trial counsel had to justify his or her actions contrary to [the]
defendant’s position. [Citations.]” Id. at 77-78.
The court then considered the trial court’s role in conducting the first-stage Krankel inquiry.
Id. at 78-79.
¶ 46 Thus, the context of the passage in Moore that the State cites is an explanation of the trial
court’s role, not Krankel counsel’s role. Further, the interesting part of the passage as it relates
to Krankel counsel’s role is the fact that Krankel counsel is appointed to represent the
defendant in the upcoming adversarial hearing. The State’s conception of Krankel counsel’s
role overlooks the fact that counsel has been appointed to represent the defendant and thus
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divorces counsel from his or her obligations to the defendant, instead setting him or her up as
some sort of investigative arm of the trial court. Thus, according to the State, in this case,
Krankel counsel simply “independently evaluate[d] the defendant’s claim[s]” before
“declin[ing] to adopt” any of the specific allegations of ineffective assistance of trial counsel.
¶ 47 However, if we keep in mind that Krankel counsel is appointed to represent the defendant
at the upcoming second-stage adversarial hearing, we clearly see what the Moore court was
contemplating when it said that “[t]he appointed counsel can independently evaluate the
defendant’s claim and would avoid the conflict of interest that trial counsel would experience
if trial counsel had to justify his or her actions contrary to [the] defendant’s position.” Simply,
this passage notes that new counsel would face no conflict of interest in presenting the
defendant’s arguments to the trial court, whereas trial counsel, in attempting to present those
same allegations, would face an impermissible conflict of interest. The independent evaluation
of the defendant’s allegations must be conducted with an eye toward representing the
defendant at the upcoming second-stage adversarial hearing, and not simply with the goal of
determining whether, in Krankel counsel’s opinion, any of the defendant’s allegations are
substantively meritorious. In other words, properly viewed, Moore commands that Krankel
counsel be an advocate for the defendant, not for the State or the trial court. Thus, this passage
in Moore, contrary to the State’s argument, does not justify Krankel counsel’s conduct in this
case; at best, it simply does not support Krankel counsel’s conduct, and at worst, it
demonstrates that Krankel counsel’s conduct was wholly unsupported by law.
¶ 48 That leaves the question of what, precisely, are Krankel counsel’s obligations once he or
she is appointed? Krankel counsel correctly noted below, and the State notes on appeal, that
any attorney, including Krankel counsel, has an ethical obligation not to present a frivolous
pleading. Ill. S. Ct. R. 137 (eff. July 1, 2013); Ill. R. Prof’l Conduct 2010 R. 3.1 (eff. Jan. 1,
2010); People v. Greer, 212 Ill. 2d 192, 209 (2004). This raises the question of how that ethical
obligation harmonizes with Krankel counsel’s obligation to represent the defendant at the
second-stage adversarial hearing.
¶ 49 This can be answered in two parts. The obligation to represent the defendant requires
Krankel counsel to independently evaluate the defendant’s pro se allegations of ineffective
assistance of trial counsel and present those with merit to the trial court during the second-stage
adversarial hearing. What, then, should be the criteria to determine merit? In our view, the
criteria flow from the obligation not to present a frivolous pleading.
¶ 50 A frivolous claim is one with no arguable basis in law or in fact. People v. Hodges, 234 Ill.
2d 1, 16 (2009). Conversely, a nonfrivolous claim will have at least an arguable basis in law or
in fact, although it might turn out to be unsuccessful. People v. Teran, 376 Ill. App. 3d 1, 2
(2007). In spite of the uncertainty, counsel’s obligation to represent the defendant requires him
or her to present any nonfrivolous claim to the trial court even where there remains a
possibility or even likelihood that the defendant will not prevail on the claim. To place this into
the context of a Krankel inquiry, Krankel counsel must sift through the defendant’s pro se
allegations to determine if any are nonfrivolous and then must present those nonfrivolous
claims to the trial court during the second-stage adversarial hearing.
¶ 51 The second part of our answer comes into play if Krankel counsel cannot find even a single
nonfrivolous allegation of ineffective assistance of trial counsel. In that case, counsel’s ethical
obligations preclude him or her from presenting any of the allegations at the second-stage
adversarial hearing, but he or she is still obligated to represent the defendant. The key to
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resolving this conundrum resides in Greer. In that case, our supreme court held that counsel
was required to seek to withdraw where counsel could not discern any nonfrivolous claims.
Greer, 212 Ill. 2d at 209. Thus, if, after his or her independent evaluation, Krankel counsel is
unable to discern any nonfrivolous allegations, he or she should seek permission from the trial
court to withdraw from his or her representation of the defendant. Id. We further suggest that
this procedure should conform to that established in Anders v. California, 386 U.S. 738 (1967),
in that Krankel counsel will accompany the motion requesting permission to withdraw with a
memo analyzing the defendant’s allegations and explaining why they lack arguable merit. See
also People v. Kuehner, 2015 IL 117695, ¶ 21 (in postconviction setting, appointed counsel
must explain why each of the petitioner’s claims is frivolous or patently without merit). In this
way, Krankel counsel will avoid the sort of problem that occurred in this case. With these
principles in mind, we turn to defendant’s contentions.
¶ 52 C. Krankel Counsel’s Performance
¶ 53 Defendant argues that Krankel counsel provided ineffective assistance because, in the third
amended motion, he abandoned all of the specific pro se allegations of ineffective assistance of
trial counsel, including those that he had adopted in the second amended motion, thereby
abdicating his responsibility to represent defendant. Defendant argues that the abandonment of
the alibi and bench-trial claims constituted deficient performance. Defendant then contends
that, under the meaningful-adversarial-testing exception of the Cronic analysis, prejudice
should be presumed. Alternatively, defendant contends that he was prejudiced by counsel’s
failure to adopt any specific allegations of ineffective assistance of trial counsel. Defendant
concludes that, based on Krankel counsel’s deficient performance and the presumed prejudice
or, alternatively, demonstrated prejudice accruing from it, Krankel counsel provided
ineffective assistance.
¶ 54 We can easily discern the deficient-performance portion of defendant’s claim. As we have
discussed, Moore suggests that, when Krankel counsel is appointed to represent a defendant,
he or she has the obligation to present all nonfrivolous claims from the defendant’s pro se
allegations of ineffective assistance of trial counsel. This means that any claim with an
arguable basis in law or in fact must be presented. Defendant contends that the alibi and
bench-trial claims are two such nonfrivolous claims.
¶ 55 In the alibi claim, defendant alleged that trial counsel did not investigate the existence of
the alibi that he was at work at his seasonal employment, as was his wont at that time, during
the overnight hours of November 9 and 10, 1996. During the initial preliminary inquiry, trial
counsel stated that he had talked with Patricia but that she had nothing concrete, beyond her
testimony, to prove up the alibi. Trial counsel also inquired with defendant’s then-employer,
Borg-Warner, but was informed that defendant’s employment records were no longer
available. In the third amended motion, Krankel counsel concluded that defendant’s alibi claim
could not succeed at the second-stage hearing, and he chose not to raise it.
¶ 56 The problem here is that Patricia averred that trial counsel had not investigated her alibi
information around the time of trial. While the decision to call a witness or to present an alibi
defense is a matter of strategy that is generally immune from review, counsel must first
investigate the claim. People v. Brown, 336 Ill. App. 3d 711, 718 (2002); see also Bryant v.
Scott, 28 F.3d 1411, 1415 (5th Cir. 1994) (an attorney is required to perform a reasonable
amount of investigation; “when alibi witnesses are involved, it is unreasonable for counsel not
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to try to contact the witnesses” to determine whether their testimony would be helpful to the
defense). Thus, defendant raised the clearly potentially meritorious claim that trial counsel had
failed to adequately investigate defendant’s alibi that he was at work. Krankel counsel
admitted that he did not consult with defendant, and we further infer that he did not contact
Patricia to ascertain whether she had anything that could confirm the alibi, because he
indicated that he relied only on transcripts and the court file in preparing the third amended
motion. We recognize that trial counsel extensively discussed his investigation at the initial
preliminary inquiry. Nevertheless, defendant had presented a nonfrivolous claim, albeit one
that might not succeed. It was incumbent upon Krankel counsel, therefore, to present the
nonfrivolous claim with whatever support he could muster at the second-stage Krankel
hearing. Krankel counsel’s failure to specifically present the claim fell below an objective
standard of reasonableness.
¶ 57 In contrast, we cannot say that defendant’s bench-trial allegation presented a nonfrivolous
claim. We note that, after the jury trial commenced, defendant no longer had the right to waive
the jury and proceed with a bench trial; rather, the decision was within the trial court’s
discretion. Zemblidge, 104 Ill. App. 3d at 657. Thus, there was no guarantee that, after the jury
trial had commenced, the trial court would have granted such a request. It is therefore arguable
that whether to pursue defendant’s wish to waive the jury became a matter of trial strategy,
which is virtually unreviewable in the context of an ineffective-assistance claim. However, this
arguability suggests that the claim might be, therefore, nonfrivolous.
¶ 58 Even so, we still cannot say that defendant’s bench-trial allegation constituted a
nonfrivolous claim. Accepting for the sake of argument that defendant had an unfettered right
to inform the trial court that he wished to waive the jury, there is no question that he did not so
inform the trial court. When counsel refuses or fails to do so, the defendant is obliged to make
his wish to waive the jury known to the trial court. People v. Powell, 281 Ill. App. 3d 68, 73
(1996). Despite commenting during the flawed Krankel hearing that he was virtually certain
that he wanted to convert his jury trial into a bench trial, defendant did not communicate this
desire to the trial court. In other words, the record affirmatively rebuts this allegation because
defendant had many opportunities throughout the trial to inform the trial court that his trial
counsel was refusing to raise his request to waive the jury and proceed from that point with a
bench trial. Thus, we cannot say that this claim was nonfrivolous, and Krankel counsel’s
failure to adopt it does not constitute deficient performance.
¶ 59 As a third example of an abandoned claim, we note that defendant alleged in his pro se
motions that “Baby” told Hernandez that he had seen only one person, Davila, fleeing from the
scene of the shooting. Hernandez mentioned the statement to the police, but she was unable or
unwilling to give Baby’s name to the police. Defendant averred that he informed trial counsel
that Baby was Acevedo and that Acevedo had continued to live in the area since the shooting.
Trial counsel stated that at the time of trial Hernandez could not recall the statement and could
not recall Baby’s identity. Further, the police reports provided a dead end. Trial counsel did not
comment on whether defendant provided him with Baby’s identity. At the initial preliminary
inquiry, the trial court dismissed the claim as only a rumor that was a dead end.
¶ 60 In the third amended motion, Krankel counsel declined to adopt the allegation because the
decision not to call a particular witness was a matter of trial strategy. Krankel counsel further
reasoned that defendant had failed to overcome his burden of demonstrating why it was not a
sound strategic decision and had failed to show either deficient representation or prejudice.
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¶ 61 The essence of defendant’s allegation was that trial counsel failed to investigate Acevedo’s
purported statement. According to defendant, he made trial counsel aware of Hernandez’s
statement to the police. Defendant also provided trial counsel with Baby’s identity. According
to trial counsel, he never investigated Acevedo, and he was stymied by Hernandez’s failure or
reluctance to identify Baby so that he could follow up on the purported statement. However,
defendant’s allegations concerning this claim directly contradict trial counsel’s statements and
clearly indicate that trial counsel did not investigate a potentially exculpatory witness.
Moreover, Acevedo’s purported statement contradicts Davila’s version of events and supports
defendant’s.
¶ 62 Krankel counsel’s decision not to adopt the allegation about Acevedo’s purported
statement was deficient representation. The allegation on its face indicated that trial counsel
had not adequately investigated Acevedo and his purported statement. Trial counsel had
Acevedo’s identity, and the import of his statement was manifest. Accordingly, the failure to
present the allegation is clearly indicative of potential neglect.
¶ 63 With that said, we acknowledge that, in Downs IV, we noted that defendant had not raised
this claim on appeal, but because the allegation was so obviously nonfrivolous, we believed
that it illustrated Krankel counsel’s deficient performance and that we could appropriately
raise the issue sua sponte. Downs IV, 2016 IL App (2d) 121156-B, ¶¶ 53-54. In its
supplemental response brief, the State legitimately chides us for “search[ing] the record for
unargued and unbriefed reasons to reverse the trial court’s judgment. People v. Givens, 237 Ill.
2d 311, 323 (2010).” The State then argues that no prejudice could have occurred because
Acevedo was incarcerated at the time of the offense, so he could not have seen anyone fleeing
the scene of the offense. The State supports this contention with a printout of Acevedo’s
Illinois Department of Corrections Offender Custody Report, establishing that Acevedo was
incarcerated on January 19, 1994, and remained incarcerated until his June 17, 1998, release on
parole. We may take judicial notice of such a report. Cordrey v. Prisoner Review Board, 2014
IL 117155, ¶ 12 n.3. We therefore conclude that the Baby claim has been factually debunked
and is thus without merit.
¶ 64 Nevertheless, the Baby claim very adequately illustrates our point concerning Krankel
counsel’s obligation to present nonfrivolous claims, notwithstanding any misgivings about
their probability of success. If the claim had been presented, as it should have been, then the
trial court could have evaluated it during the second-stage hearing, and the State could have,
and should have, presented the information that Acevedo was incarcerated at the time of the
offense. This claim, then, in a nutshell, exemplifies the obligations of Krankel counsel and the
process that a Krankel inquiry should follow.
¶ 65 Based on the above examples, we conclude that Krankel counsel provided deficient
representation under the first prong of the Strickland analysis. The alibi claim alleged that trial
counsel did not investigate the alibi. Krankel counsel had Patricia’s affidavit indicating that
defendant had been at work at the time of the offense but he likewise did not fully investigate
the claim. This claim should have been presented at the second-stage hearing. The failure to
present the claim fell below an objective standard of reasonableness in representing defendant.
Likewise, the failure to present the Baby claim constituted deficient representation. However,
because the State has factually debunked the claim, and because we have accepted this
information (thus bypassing the normal Krankel process), there is no need to further press this
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claim in any future proceedings. Having found that Krankel counsel’s representation fell
below an objective standard of reasonableness, we now consider prejudice.
¶ 66 As noted above, defendant argues that, under the meaningful-adversarial-testing exception
of the Cronic analysis, prejudice may be presumed. We agree.
¶ 67 Krankel counsel did not just abandon defendant’s pro se allegations. Instead, Krankel
counsel composed a lengthy memorandum that usurped both the State’s and the trial court’s
roles in the second-stage hearing. For example, regarding the alibi claim, counsel wrote:
“Counsel declines to adopt Defendant’s #4 and offer Patricia Serrano’s sworn and
notarized statement file stamped September 8, 2009, attached as Exhibit F-1 thru [sic]
F-3. Trial counsel’s responses offered at the hearing on October 28, 2009, inform that
he conducted multiple conversations with Ms. Serrano prior to Defendant’s trial and at
no time did she offer counsel the basis for an alibi defense that could be confirmed.
While the Patricia Serrano affidavit signed and dated August 20, 2009, and filed [sic]
stamped September 8, 2009, may have substance in other venues, nothing is offered by
Defendant via the affidavit that a confirmable alibi was asserted to or available to trial
counsel prior to the time of trial. The burden falls upon the defendant to show why trial
counsel’s decision was not sound trial strategy. His decision to not pursue defendant’s
alibi claim through Patricia Serrano’s potential testimony clearly falls into the arena of
trial strategy. Defendant offers nothing here that indicates anything more than a
disagreement with counsel’s strategy and tactics in conducting the trial thus failing to
establish error under Strickland’s first prong.”
This passage usurped the State’s role by presenting argument, not in support of defendant’s
claim, but directly against defendant’s claim. Thus, Krankel counsel was not acting as an
advocate for defendant, but as an advocate for the State. This passage also usurped the trial
court’s role because it adjudged the claim to be nothing more than a disagreement with trial
counsel’s strategic choices, which would fail as a claim of ineffective assistance of trial
counsel. However, the third amended motion was submitted in conjunction with the
second-stage hearing. As we have determined, Krankel counsel’s obligation at that point was
to represent defendant. By submitting argument directly inimical to defendant’s position,
counsel failed to represent defendant. By acting as an auxiliary arm of the trial court, counsel
failed to represent defendant. This “representation” effectively constitutes no representation at
all. Thus, defendant was effectively deprived of any representation whatsoever.
¶ 68 Accordingly, we hold that Krankel counsel failed to subject trial counsel’s conduct,
according to any of defendant’s specific claims, to meaningful adversarial testing. Instead,
Krankel counsel simply advocated against defendant’s interests. By not only abandoning
defendant’s pro se claims against trial counsel, but also directly advocating against them, none
of the conduct at issue was actually subjected to any sort of adversarial testing. Thus, defendant
has satisfied the meaningful-adversarial-testing exception of the Cronic analysis.
¶ 69 We note that Krankel counsel did “advocate” the nonspecific catch-all claim of ineffective
assistance of trial counsel. This, however, is insufficient to remove Krankel counsel’s
“representation” from the confines of the Cronic analysis. Under Strickland, which was the
standard under which the trial court was to evaluate defendant’s claims, the defendant must
show both deficient performance and prejudice. Cherry, 2016 IL 118728, ¶ 24. The failure to
prove either will preclude a finding of ineffective assistance. Id. In this case, where Krankel
counsel abandoned all of defendant’s specific claims against trial counsel, there was literally
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no way the trial court could have found deficient performance or prejudice. Because Krankel
counsel presented no specific instance of deficient representation, the trial court could not have
found any deficiency, much less any prejudice resulting therefrom. Thus, Krankel counsel’s
presentation of the nonspecific catch-all claim, in actuality, amounted to no representation at
all.
¶ 70 Indeed, the catch-all claim, presented with none of the specific allegations, was itself
frivolous. If the claim was doomed from the outset, then there was no justification for
presenting it. Krankel counsel realized this, but rationalized that he was simply throwing
defendant upon the trial court’s mercy. Instead of arguing against his client, counsel was
obligated to move to withdraw if there were no claims that he could ethically present to the trial
court at the second-stage hearing. However, counsel chose the worst option of all: abandon
nonfrivolous claims and present a frivolous one in their place. (Of course, had counsel retained
the nonfrivolous claims, the catch-all claim would not have been frivolous.)
¶ 71 In addition, while Cherry cautions against the application of the Cronic analysis except in
narrowly defined and (hopefully) infrequent circumstances (id. ¶ 26), Krankel counsel’s
performance here was so egregiously deficient as to factually distinguish Cherry. In Cherry,
when Krankel counsel was appointed, he immediately filed and argued a motion to reconsider
the defendant’s sentence and also orally argued the defendant’s pro se claims of ineffective
assistance. Id. ¶ 29. Our supreme court recognized that, although Krankel counsel might have
been able to do more to develop and advance the defendant’s pro se claims, his failure to do
more fell into the category of poor representation and not into the category of no representation
at all. Id.
¶ 72 Here, by contrast, Krankel counsel’s representation crashed through the category of poor
representation and landed squarely in the category of no representation at all. Although
Krankel counsel wrote a lengthy motion including an outline of his actions, this did not amount
to any representation of defendant because, in the motion, counsel not only abandoned
defendant’s pro se allegations against trial counsel but affirmatively argued directly against
each and every allegation, including the nonspecific catch-all allegation. Also, Krankel
counsel did not consult with defendant about his pro se allegations. Krankel counsel asserted
in the third amended motion that he had sufficiently consulted with defendant to ascertain his
claims, but defendant contradicted that representation, causing Krankel counsel to admit that
he did not actually speak with defendant but only reviewed the filings and reports of
proceedings from the flawed Krankel hearing.3 Importantly, defendant informed the trial court
that he told Krankel counsel that he had more issues he wished to raise, but, instead of
ascertaining these issues, Krankel counsel filed the third amended motion, which argued
against each and every issue raised by defendant up to that point. The trial court even offered a
3
Krankel counsel’s failure to communicate with defendant illustrates his affirmative abandonment
of the obligations of representing defendant, in favor of his mistakenly assumed investigative powers as
a sort of adjunct to the trial court. We also note that counsel has a general obligation to communicate
with his or her client. Ill. R. Prof’l Conduct 2010 R. 1.4 (eff. Jan. 1, 2016). When Krankel counsel
undertook to comply with Rule 651(c), he voluntarily undertook the obligations outlined in that rule,
which included the requirement to directly communicate with defendant about his allegations and not
simply review filings and transcripts. We do not impose any obligation of face-to-face communication,
but some direct communication, such as by telephone or mail, was warranted as a result of counsel’s
position as defendant’s advocate.
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continuance to allow Krankel counsel to consult with defendant, but counsel eschewed the
offer and insisted that the hearing go forward. It is apparent, then, that counsel abandoned his
duties as defendant’s advocate, and his failure to communicate directly with defendant is
symptomatic of that abandonment. Thus, Krankel counsel’s conduct cannot be compared to
counsel’s representation in Cherry, in which counsel actually advocated for his client by filing
and arguing a motion to reconsider and arguing all of the defendant’s pro se allegations.
¶ 73 Moreover, even though Krankel counsel here raised defendant’s nonspecific catch-all
allegation of ineffective assistance, his other failures, along with the fact that the catch-all
allegation could not succeed under Strickland, rendered his presentation of the catch-all
allegation meaningless and, at best, pro forma. In this fashion, Krankel counsel’s performance
mirrors that of counsel in People v. Morris, 209 Ill. 2d 137 (2004), overruled in part on other
grounds, People v. Pitman, 211 Ill. 2d 502 (2004). In Morris, by admitting the defendant’s
guilt to the jury, counsel appeared to lay the groundwork for a plea of jury nullification based
on sympathy or compassion. Morris, 209 Ill. 2d at 182-84. This might have passed muster,
because a plea for jury nullification has been recognized as a minimal defense. Id. at 184.
However, such a defense was undermined because counsel not only conceded the defendant’s
guilt, but also affirmatively introduced evidence of the defendant’s involvement in a grisly and
unrelated murder, even though the trial court had ruled at counsel’s request that the evidence
was inadmissible. Id. at 184-85. This error was inherently prejudicial to the defendant and it
served to negate the minimally acceptable strategy of appealing to the jury’s sympathy. Id. at
187-88. Our supreme court concluded that these circumstances constituted such a breakdown
of the adversarial process in the defendant’s trial that no meaningful adversarial testing of the
State’s case occurred. Id. at 188.
¶ 74 Similarly here, by adopting only the nonspecific catch-all allegation, Krankel counsel was
attempting to throw defendant upon the trial court’s mercy. He presented no basis on which the
trial court could have determined that trial counsel was ineffective. Instead, Krankel counsel
was apparently seeking some sort of extralegal remedy and counting upon the trial court to lay
aside its obligations, even though counsel had not provided it with any legal justification to do
so. While we doubt that this apparent strategy can be deemed even minimally acceptable where
the intended audience is not a jury but a judge, Krankel counsel, like counsel in Morris,
compounded his error by directly arguing against defendant’s interests. In Morris, our supreme
court found that a minimally acceptable defense that was undercut by prejudicial error
demonstrated that counsel was ineffective, without the need to demonstrate prejudice under
Strickland. Id. Likewise here. Krankel counsel’s strategy was likely not even minimally
acceptable, but his vigorous arguments directly against defendant’s pro se allegations served to
negate that strategy. See id. at 187-88. Accordingly, we hold that the meaningful-adversarial-
testing exception of the Cronic analysis applies here, and thus we need not address whether
defendant could show prejudice under a straightforward Strickland analysis.
¶ 75 The State argues that Krankel counsel was obligated to make an independent investigation
and to present only those claims that passed muster. We agree, with an important caveat.
Krankel counsel first and foremost represents the defendant. If his or her investigation reveals
no even potentially meritorious claims, he or she may not simply write a memorandum arguing
against these claims and be done with his or her engagement. Rather, counsel must move to
withdraw and then explain in a separate memorandum why there are no potentially meritorious
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claims. In this fashion, counsel will not violate his or her ethical obligations and will fulfill his
or her duty to represent the defendant. See supra ¶¶ 43-51.
¶ 76 The State specifically argues that Krankel counsel was obligated not to present frivolous
claims to the trial court. Again we agree. As we covered the obligations above (see supra
¶¶ 43-51), we will not repeat our analysis here.
¶ 77 The State argues that the alibi claim presented only a matter of trial strategy. We agree that
certain decisions, such as whether to call a witness and whether to present an alibi defense, are
generally matters of trial strategy, largely immune from ineffective-assistance claims. People
v. Enis, 194 Ill. 2d 361, 378 (2000). However, defendant claimed that the failure to raise the
alibi defense and to call the witnesses supporting it was due to trial counsel’s failure to
investigate. In support, in advance of the second-stage hearing, defendant had procured
Patricia’s affidavit and Chris’s statement, thereby raising a nonfrivolous claim that due to
neglect, not strategy, trial counsel did not raise the alibi defense. Krankel counsel was therefore
obligated to present the claim, notwithstanding the chance that it might not succeed.
Accordingly, we cannot accept the State’s contention that the alibi claim presented nothing
more than a matter of trial strategy.
¶ 78 The State argues that it was defendant’s burden to demonstrate why trial counsel’s decision
was not sound strategy and that defendant failed to carry the burden. We agree that, in making
a claim of ineffective assistance, the defendant must show that counsel’s performance was
deficient and, in so doing, overcome the presumption that counsel’s conduct was reasonable.
People v. Rhodes, 386 Ill. App. 3d 649, 653-54 (2008). However, that is defendant’s ultimate
burden. For purposes of the Krankel hearing, defendant overcame his burden by alleging, with
evidentiary support, that trial counsel did not investigate the alibi claim, thereby removing
counsel’s decision from the realm of strategy and placing it into the realm of potential neglect.
We therefore reject the State’s contention.
¶ 79 The State disputes defendant’s contention that Krankel counsel failed to conduct a
competent and meaningful investigation into defendant’s alibi claim. Given our analysis
above, whether counsel adequately investigated the alibi claim is of no moment. Even
assuming that counsel’s investigation was exemplary, his subsequent errors rendered his
representation of defendant wholly ineffective. In any event, counsel admitted that he had not
communicated with defendant and he did not indicate that he had questioned Patricia. From
this, we cannot say that counsel’s investigation was adequate.
¶ 80 Turning to the State’s supplemental response brief, we note that the State argues that, by
submitting a supplemental brief, defendant has somehow abandoned his contentions on appeal
for our consideration. The contention is risible. Defendant’s supplemental brief was just that, a
supplement offering defendant’s insight into the effect of Cherry on the arguments raised in
this appeal. There was no need for defendant to rehash each and every argument already
presented. Rather, the supplemental brief should have been limited to the narrow scope of the
effect of Cherry. We also note that the State significantly exceeded that narrow scope in its
supplemental response brief, taking the opportunity to reargue many of the substantive points
decided in Downs IV and argued in defendant’s original briefs on appeal. This was improper.
Nevertheless, to some extent, we address these beyond-the-scope arguments.
¶ 81 The State contends that defendant here, like the defendant in Cherry, argued only that
Cronic applied and did not argue that Krankel counsel’s representation resulted in prejudice
under Strickland. That might be true with reference only to defendant’s supplemental brief, but
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defendant’s arguments in this matter are presented also in defendant’s initial brief on appeal
and his reply brief. In any event, in light of our analysis above, even if defendant had not
pursued any argument that, under a Strickland analysis, he was prejudiced by Krankel
counsel’s deficient representation, he has succeeded in demonstrating that we may presume
prejudice under Cronic, so the State’s contention need not be considered.
¶ 82 The State argues that Krankel counsel complied with the limited guidance of Moore, 207
Ill. 2d at 78, by simply performing an independent evaluation of defendant’s pro se allegations.
The State contends that, in fact, Krankel counsel surpassed his obligations by composing a
15-page, single-spaced third amended motion “explaining why he declined to adopt each of
defendant’s pro se claims.” As noted above, we understand that Krankel counsel believed that
he was acting as an investigatory arm of the trial court rather than solely as defendant’s
advocate. We believe that counsel acted conscientiously but that, because he was confused
about his responsibilities, he failed to harmonize his evaluation with his overarching obligation
to represent defendant at the second-stage hearing. Id. at 77-78. We reject the State’s
contention.
¶ 83 The State claims that no authority requires Krankel counsel to present any nonfrivolous
claim of ineffective assistance of counsel to the trial court during a second-stage hearing.
While we agree that no case expressly states this point, as we have demonstrated, it is inferable
from the requisites of the attorney-client relationship. Additionally, the State argues that
Strickland itself does not require counsel to raise all nonfrivolous claims, citing People v.
Tenner, 175 Ill. 2d 372, 387 (1997). While this might be true, it is Krankel, not Strickland, that
requires the presentation of all nonfrivolous claims. In keeping with an attorney’s obligation to
represent his or her client, we can expect no less. Plus, Tenner is inapposite, as any winnowing
of weaker claims undertaken in that case was in the context of presenting an appeal. Id. Even in
an appeal, the fact that counsel may winnow the weaker arguments does not excuse him or her
from providing representation on the major meritorious issue or issues; and, if there are no
potentially meritorious issues at all, counsel is required to navigate the Anders procedure. Why
should Krankel counsel be held to a lesser standard than any other attorney? We see no reason,
and the State provides no reason.
¶ 84 The State contends that Krankel counsel properly considered the flawed Krankel hearing
“in assessing the merits of defendant’s pro se allegations,” relying on People v. Jolly, 2014 IL
117142, ¶ 38. Jolly does not support this contention. Rather, it holds that “a preliminary
Krankel inquiry should operate as a neutral and nonadversarial proceeding. Because a
defendant is not appointed new counsel at the preliminary Krankel inquiry, it is critical that the
State’s participation at that proceeding, if any, be de minimis.” Id. It does not discuss Krankel
counsel’s obligations. Thus, the State’s argument is unsupported and therefore forfeited. Ill. S.
Ct. R. 341(h)(7) (eff. Feb. 6, 2013).
¶ 85 The State argues that, after the flawed hearing, the trial court determined that none of
defendant’s claims indicated potential neglect by trial counsel. This is belied by the record.
The trial court appointed Krankel counsel because, when reviewing defendant’s initial pro se
allegations, it concluded that they showed potential neglect. It was only after converting the
preliminary Krankel hearing into a full-blown adversarial hearing on the merits that it
concluded that none of defendant’s pro se allegations were meritorious. The poisoning of the
process continued when, instead of presenting any nonfrivolous claims, Krankel counsel
abandoned all of them, even those that showed potential neglect, in light of the results of the
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flawed Krankel hearing. In effect, the State attempts to divorce the trial court’s initial
determination on the merits from the flawed procedure that produced it. We reject the State’s
contention.
¶ 86 The State argues that Krankel counsel was not required to consult with defendant, citing
Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013). We disagree. Rule 651(c) requires
counsel to consult with a defendant in some fashion, either in person, in writing, by phone, or
by email, to ascertain the defendant’s contentions. The attorney-client relationship also
requires some fashion of consultation. Ill. R. Prof’l Conduct R. 1.4 (eff. Jan. 1, 2016). Here,
Krankel counsel indicated that he did not consult with defendant or conduct any investigation
into his pro se allegations beyond what had been elicited during the flawed Krankel hearing.
Indeed, the failure to communicate prevented defendant from supplementing his allegations;
defendant told the trial court that he had mentioned to Krankel counsel that he wanted to raise
additional issues and believed that Krankel counsel was amenable to his request, but defendant
asserted that he was blindsided by the filing of the third amended motion abandoning his
claims and arguing against them. We cannot countenance Krankel counsel’s conduct or the
trial court’s acquiescence to it, because it does not comport with the requirements of Rule
651(c) or the obligations imposed by the attorney-client relationship. Accordingly, we reject
the notion that Krankel counsel was under no obligation to consult with defendant.
¶ 87 The State argues that Krankel counsel’s evaluation of the alibi claim was reasonable.
Because it was nonfrivolous, Krankel counsel was required to present the alibi claim to the trial
court, not to assess that it had no merit. The ultimate assessment of merit was the trial court’s
alone; Krankel counsel usurped that prerogative by declining to adopt the claim, no matter the
reasonableness of his assessment. The point in this appeal is not to adjudicate the merits of
defendant’s claims, but to determine whether Krankel counsel provided constitutionally
effective assistance. Where counsel not only abandoned defendant’s nonfrivolous claims but
also affirmatively argued against defendant’s interests, we cannot say that counsel provided
effective assistance, no matter how weak the merits of those claims appear. If counsel
concluded that the claims were frivolous, his remedy was to follow Greer and move to
withdraw and submit the necessary document analyzing the insufficiency of the potentially
meritorious claims. See Keuhner, 2015 IL 117695, ¶ 21. We reject the State’s contention.
¶ 88 The State continues, dissecting Krankel counsel’s actions with respect to the perceived
lack of merit of the alibi claim. However, in light of the fact that counsel abandoned the claim
and argued directly against defendant’s interests, we believe the argument to be ultimately
misplaced. We reiterate that, where Krankel counsel not only abandoned defendant’s
nonfrivolous claims but also affirmatively argued against defendant’s interests, we cannot say
that counsel provided effective assistance, no matter how weak the merits of those claims
appear. Further, we note that all the State’s arguments are crafted through the lens of a
Strickland analysis and do not address how the application of presumed prejudice impacts
them. Indeed, we believe that it means that defendant was ultimately deprived of the
adversarial second-stage Krankel hearing to which he was entitled. The remedy must be to give
defendant that hearing. Nothing in the State’s arguments about the merit of the alibi claim
either addresses this issue or changes our mind. Accordingly, we reject the State’s contentions.
¶ 89 The State argues that Krankel counsel’s participation in the second-stage hearing and
drafting of the third amended motion are sufficient to place this case into the ambit of Cherry.
We disagree. The argument overlooks the fact that Krankel counsel abandoned any pretense of
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representing defendant when he argued against defendant’s interests. Thus, the argument does
not consider how Krankel counsel’s actions effectively deprived defendant of counsel during
the second-stage Krankel hearing and the impact of this effective deprivation on the analysis of
defendant’s contentions on appeal.
¶ 90 Indeed, this is clearly seen if we focus on what the State’s argument overlooks. According
to the State, Krankel counsel’s bare participation was enough to satisfy the obligations of
representation along with Cherry’s strictures. Left out of the consideration is the fact that
Krankel counsel did not consult with defendant after leaving defendant with the impression
that, when the time came to finalize all of defendant’s allegations, he not only would consult
but also would include additional allegations of ineffective assistance of trial counsel.4 It is not
surprising, therefore, that defendant complained that he was blindsided by Krankel counsel’s
filing of the third amended motion, in which counsel abandoned all pretense of representing
defendant and argued directly against defendant’s interests. What is surprising is Krankel
counsel’s transformation from advocate to adversary, perhaps telegraphed in Krankel
counsel’s apparent Freudian slip: “a hearing will be scheduled to allow [Krankel] counsel to
serve as Defendant’s Adversary.” Also surprising is the trial court’s acquiescence to Krankel
counsel’s actions in exchanging the role of advocate for that of adversary. Perhaps, though, it is
not too surprising, given the trial court’s continued misunderstanding of Krankel and Krankel
counsel’s obligations, along with the paucity of authority explaining those obligations. In
short, we emphatically reject any notion that Krankel counsel appropriately discharged his
obligations in a fashion that, under Cherry, would remove our analysis from the rubric of
Cronic, especially where Cherry is predicated upon the active participation of counsel on the
defendant’s behalf, while here Krankel counsel’s participation was directly inimical to
defendant’s interests.
¶ 91 The State concludes with the contention that defendant received the hearing to which he
was due because “[h]e had counsel” and “[h]is counsel worked on his behalf and presented to
the trial court the one claim [that] he felt able to present that was non-frivolous.” The fig leaf of
the catch-all allegation is transparent. As noted above, once separated from all of the other
allegations, the catch-all allegation itself became a frivolous allegation because there was no
conceivable legal merit. Thus, while Krankel counsel devoted time and effort to the drafting of
the third amended motion and his appearance at the second-stage hearing, it was for naught.
The third amended motion did not serve and in fact harmed defendant’s interests, and at the
hearing, counsel undermined even the feeble strategy he pursued in the motion. Accordingly,
we reject the State’s contention.
¶ 92 In sum, then, defendant has shown that, by failing to present his nonfrivolous claims,
Krankel counsel provided deficient representation. Defendant has also demonstrated that, by
rejecting those nonfrivolous claims and arguing adversely to his interests, Krankel counsel
failed to subject trial counsel’s conduct to any meaningful adversarial testing and thus
effectively deprived him of counsel during a critical stage of the proceedings, such that we may
presume the existence of prejudice without requiring defendant to demonstrate it. As a result,
defendant has successfully demonstrated that Krankel counsel provided ineffective assistance,
As a result of Krankel counsel’s abandonment of defendant’s allegations of ineffective assistance,
4
we do not, and cannot, know what other issues defendant was planning to raise.
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requiring the reversal of the trial court’s judgment.
¶ 93 III. CONCLUSION
¶ 94 For the foregoing reasons, we hold that Krankel counsel provided ineffective assistance,
effectively depriving defendant of a proper second-stage Krankel hearing. Accordingly, we
reverse the judgment of the circuit court of Kane County. We must also remand this cause so
that a proper second-stage Krankel hearing can be conducted. As we did in Downs I, we direct
the trial court to appoint an attorney to represent defendant in presenting his claims of
ineffective assistance of trial counsel, but we depart from our instruction in Downs I and direct
the trial court to appoint a different attorney than the attorney who was appointed and appeared
for defendant in the proceedings at issue in this appeal. The new attorney shall be allowed to
conduct an investigation into defendant’s claims of ineffective assistance of trial counsel and is
admonished to present any nonfrivolous claims supported by the record or by his or her
independent investigation; the trial court shall then hold an appropriate adversarial
second-stage Krankel hearing on those claims. If he or she finds no such claims, the new
attorney should follow Greer, 212 Ill. 2d at 209. As we have identified at least one
nonfrivolous claim based on the present record, we do not expect that the new attorney shall
need to resort to filing a motion to withdraw accompanied by a memorandum explaining why
none of the claims have arguable merit, but we do not foreclose that possibility.
¶ 95 Reversed and remanded with directions.
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