People v. Downing

2019 IL App (1st) 170329

147 N.E.3d 779

439 Ill.Dec. 104

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Alfred DOWNING, Defendant-Appellant.

No. 1-17-0329

Appellate Court of Illinois, First District, THIRD DIVISION.

November 6, 2019

James E. Chadd, Patricia Mysza, and Christopher L. Gehrke, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Mari R. Hatzenbuehler, and Victoria E. Campbell, Assistant State's Attorneys, of counsel), for the People.

JUSTICE ELLIS delivered the judgment of the court, with opinion.

¶ 1 Defendant Alfred Downing was found guilty of possession of cannabis with intent to deliver. During his presentence investigation interview, he complained about his attorney's trial performance. The resulting presentence investigation report (PSI) then recited, in some detail, defendant's complaints about his trial counsel's representation. Then, at defendant's sentencing hearing, the State, arguing in aggravation, cited those very complaints in the PSI as evidence that defendant lacked remorse—that instead of accepting responsibility for his actions, he merely blamed his lawyer's poor performance. Defendant, for his part, never repeated his complaints in open court, in a written motion, or in any other informal communication with the trial court. Nor did the trial court make any inquiry of defendant.

¶ 2 The question here is whether the trial court was required to conduct a preliminary inquiry under People v. Krankel , 102 Ill. 2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984), even though defendant did not, himself, raise any claims of ineffective assistance in open court, and even though the claim was raised by the prosecutor, not defense counsel. Our initial answer, in a previous order, was no. We held that the trial court had no duty to conduct a Krankel inquiry, because defendant did not direct his allegations to the trial court and thus failed to manifest any intent to litigate a pro se claim of ineffective assistance.

¶ 3 After defendant requested rehearing and upon further reflection, our answer is yes. The Krankel rule was fashioned by our supreme court to facilitate the accurate and efficient disposition of those claims of ineffective assistance of counsel that cannot be resolved based on the trial record alone. When, as here, it comes to the trial court's attention in open court in a post-trial proceeding that a defendant is claiming ineffective assistance by his trial counsel, the purposes of Krankel are best served by requiring an inquiry by the trial court, regardless of whether that information was communicated by defense counsel or the prosecutor.

¶ 4 While we mean no criticism of the trial court, which was faced with a unique set of circumstances, we hold that a Krankel inquiry should have been conducted. We remand for that purpose. On remand, defendant may also move to challenge his monetary assessments.

¶ 5 BACKGROUND

¶ 6 On October 6, 2015, Chicago police officers Cloherty and Ustaszewski (whose first names do not appear in the record) were in an unmarked car when a Chevy Cavalier drove past them. The windows of both cars were open, and Cloherty smelled burning cannabis coming from the Cavalier. He also noticed that neither the driver, Sharita Butler, nor the sole passenger, defendant, was wearing a seatbelt. The officers followed, and ultimately stopped, the Cavalier.

¶ 7 Butler got out of the car as the officers approached. Cloherty asked if she had any cannabis, and Butler handed him a partially smoked cannabis cigar. Ustaszewski approached the passenger side of the car and asked defendant if he had any cannabis. Defendant handed him a cannabis cigar inside an opened "blunt wrapper."

¶ 8 After removing defendant from the Cavalier, Ustaszewski found two clear plastic bags of cannabis between the center console and the passenger seat, and a large bag with smaller plastic bags of cannabis underneath the passenger seat. Cloherty found two large heat-sealed bags of cannabis and a scale in the trunk. The parties stipulated to the weight of the various bags, which totaled approximately 835 grams of cannabis.

¶ 9 Cloherty testified that defendant, who at the time was handcuffed and standing behind the Cavalier, said that "all the weed is mine." Ustaszewski also testified that defendant said "it's all mine" and "none of it is hers." Defendant did not sign a written statement, and he never touched or made any movements toward any of the bags of cannabis. The bags were not fingerprinted.

¶ 10 The trial court found defendant guilty of possessing 500 to 2000 grams of cannabis. After trial, defendant complained about the conduct of his trial counsel to the probation-department investigator. Those complaints were recorded in the PSI:

"I had three more witnesses I tried to get called and I also requested a new lawyer and that was denied. I also was supposed to take the stand and my lawyer didn't let me take the stand. They let the [p]olice say what they said and lie on [the] stand. The arresting officers were not the ones who transported me, no one read me my Miranda [r]ights—they didn't even have a chance to before I was transported. They also said I made a statement that the drugs were mine—Why would I say something like that—I'm on parole. They even said that the person driving the car tried to hop out of the car and get away, I was the passenger."

¶ 11 At the sentencing hearing, the trial court acknowledged receipt of the PSI. In aggravation, the State argued that those statements in the PSI showed that defendant lacked remorse:

"I would also address or direct your attention to page five of the PSI, the defendant's version of the offense, and suggest that it demonstrates an utter lack of remorse. He accuses the officers of lying on the witness stand. He accuses his lawyer of not letting him take the stand to testify when in fact you inquired, I recall, of his intention to either testify or not, and he indicated that he did not wish to yet. He is now blaming his lawyer for the outcome of the case ." (Emphasis added.)

¶ 12 After hearing arguments in aggravation and mitigation, the trial court asked defendant, "[I]s there anything you wish to say before I impose sentence?" Defendant answered, "No." Defendant did not mention his allegations against counsel at any time during the sentencing hearing, and the trial court never asked defendant to elaborate on his claims or their alleged factual basis. The trial court found that defendant was a Class X offender by background and sentenced him to seven years in prison.

¶ 13 ANALYSIS

¶ 14 I

¶ 15 Defendant argues that the trial court was required to conduct a Krankel inquiry into the allegations of attorney incompetence that he expressed to the probation department during his PSI interview. Our review is de novo . People v. Moore , 207 Ill. 2d 68, 75, 278 Ill.Dec. 36, 797 N.E.2d 631 (2003).

¶ 16 A

¶ 17 There is no dispute that at least some of these allegations sufficed, in terms of their content , to "raise[ ] a pro se posttrial claim of ineffective assistance of counsel." See People v. Ayres , 2017 IL 120071, ¶ 11, 417 Ill.Dec. 580, 88 N.E.3d 732. Defendant said that his lawyer failed to call three witnesses; that he'd wanted to replace his lawyer; and that counsel did not let defendant testify in his own defense. If the mere words "ineffective assistance of counsel" are enough to trigger Krankel (see id. ¶ 26 ), then these far more specific claims easily suffice—in content.

¶ 18 But the question here is not the content of the claims, but the manner in which they were received by the trial court, and by whom they were delivered. Defendant filed nothing with the court regarding ineffective assistance, nor did he utter any such words in open court. Rather, defendant's complaints about his lawyer's representation first appeared in the PSI, and then were communicated in open court by the State in aggravation at the sentencing hearing. The question thus presented is whether allegations of ineffective assistance, attributed to the defendant but presented to the trial court in open court by someone other than the defendant, require the court to conduct a Krankel inquiry.

¶ 19 We have already held that when defense counsel informs the court that the defendant has made out-of-court complaints about counsel's representation, a Krankel inquiry is required. In People v. Jackson , 243 Ill. App. 3d 1026, 1034, 184 Ill.Dec. 893, 614 N.E.2d 94 (1993), defense counsel sought to withdraw post-trial, informing the trial court that defendant had filed an Attorney Registration and Disciplinary Commission (ARDC) complaint against counsel that contained " ‘allegations or innuendos of ineffectiveness.’ " That is to say, defense counsel was not speaking as defendant's mouthpiece—he did not tell the court that his client had asked him to raise ineffectiveness claims—but rather, defense counsel merely communicated statements made by defendant in an out-of-court ARDC complaint. That was enough, we held, to trigger the Krankel inquiry. Id. at 1035-36, 184 Ill.Dec. 893, 614 N.E.2d 94.

¶ 20 Our facts are hardly distinguishable from those in Jackson . Again, we face a situation where the defendant has made an out-of-court statement complaining of trial counsel's representation, chronicled in a written document whose content was then communicated to the trial court at a post-trial proceeding. Instead of an ARDC complaint, we have here a PSI, which is far more germane to a defendant's post-trial proceedings than an unrelated complaint to the state's bar disciplinary body—and which the trial court is required and presumed to have read. See 730 ILCS 5/5-4-1(a)(2) (West 2018); People v. Sauseda , 2016 IL App (1st) 140134, ¶ 20, 401 Ill.Dec. 581, 50 N.E.3d 723.

¶ 21 And instead of defense counsel, here it was the prosecutor who brought defendant's claims to the trial court's attention. But we can think of no reason...