People v. Elkhaldy , 2022 IL App (1st) 210554-U ( 2022 )

2022 IL App (1st) 210554-UNo. 1-21-0554
Order filed June 30, 2022
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
)
v. ) Nos. YH-036-123
) YH-036-124
)
SHERRY ELKHALDY, ) Honorable
) Ketki Shroff Steffen,
Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE REYES delivered the judgment of the court.
Justices Rochford and Martin concurred in the judgment.
ORDER
¶1 Held: We remand for a new preliminary inquiry into defendant’s pro se posttrial
allegations of ineffective assistance where the judge who heard the allegations did
not preside over the pretrial proceedings they implicated.
¶2 Following a bench trial, defendant Sherry Elkhaldy was found guilty of driving under the
influence of alcohol (625 ILCS 5/11-501(a)(2) (West 2018)) and improper traffic lane usage (625
ILCS 5/11-709(a) (West 2018)). The court imposed one year of conditional discharge and
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supervision, respectively. On appeal, defendant contends that the trial court conducted an
inadequate preliminary inquiry into her pro se posttrial claim of ineffective assistance of counsel
under People v. Krankel, 102 Ill. 2d 181 (1984). For the following reasons, we remand.
¶3 Defendant was charged with driving under the influence of alcohol and improper traffic
lane usage following an incident on June 9, 2019.
¶4 During pretrial proceedings before the Honorable Beatriz Santiago on July 8, 2020, private
counsel withdrew at defendant’s request. Judge Santiago appointed an assistant public defender
(APD), Melissa Wright, to represent defendant. Private counsel asked how he should transfer
discovery materials to Wright. Judge Santiago stated that Wright “can provide her information and
figure out that way how to exchange discovery.” Judge Santiago then directed defendant to speak
with Wright. The report of proceedings reflects that inaudible dialogue transpired; in response,
Judge Santiago stated, “I would prefer that you show it to *** Wright.”
¶5 On August 11, 2020, before the Honorable Ketki Shroff Steffen, defendant appeared
without Wright. Defendant stated that the proceedings had exacerbated her financial and
employment problems and that Wright “never called [her] back.” Defendant stated that she had
“some paperwork” and claimed that she had been “forced to sign papers at the police station.”
Judge Steffen advised that defendant “cannot show [the court] anything,” and the court “cannot go
into those issues without [defendant’s] attorney here.” Judge Steffen ordered the State to tender
discovery by August 14, 2020. Another APD, who was in the courtroom, stated that he would
email Wright regarding the day’s proceedings.
¶6 On August 21, 2020, before Judge Santiago, Wright stated that she had received “the police
reports” and “two videos,” including the “booking video,” but that defendant was “not happy”
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because she wanted the case resolved. The State confirmed that discovery was complete. Judge
Santiago continued the case for Wright to review discovery with defendant.
¶7 On November 18, 2020, before the Honorable Steven M. Wagner, Wright informed the
court that defendant provided “some new information today that I need to look into.” Wright
requested a continuance, but defendant asked the court to dismiss the case. The following colloquy
occurred:
“[DEFENDANT]: Your Honor, I have paperwork.
THE COURT: Ma’am, your lawyer said you gave her some information, which she
needs to check into but wasn’t able to do it yet since you just provided her with that
information. So that’s why she’s asking for the continuance to January to check out the
information and reset the matter for trial. Whether that results in the case being dismissed
or not, I don’t know.
***
[DEFENDANT]: Your Honor, I have not been able to work due to this. I cannot
finish any classes. I finished the CNA class, your Honor. I cannot do any other classes due
to the fact this is still continuing.”
¶8 Wright reiterated that defendant had tendered “new information” that Wright would “like
to look into,” but that Wright was ready for trial if defendant wished. Judge Wagner confirmed
that the State was ready for trial and passed the case. Afterwards, Judge Wagner advised the parties
that the case had been “transferred” to another courtroom.
¶9 The half-sheet entries for the proceedings before Judge Wagner on November 18, 2020,
does not mention the discussion that occurred between defendant, Wright, and the court.
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¶ 10 That same day, proceedings continued before Judge Steffen. Judge Steffen admonished
defendant regarding her right to a jury trial, explained the difference between a jury trial and bench
trial, and accepted her written jury waiver.
¶ 11 Elk Grove Village police officer Brandon Rubino testified that on June 9, 2019, around
11:40 p.m., he arrived at the scene of a single-car accident at the “T-intersection” of Devon Avenue
and Elmhurst Road in Elk Grove Village. Rubino observed a “still running” vehicle in a ditch past
the intersection, and surmised that the vehicle drove straight through the intersection without
turning left or right.
¶ 12 Defendant, whom Rubino identified in court as the driver of the vehicle, was sitting on a
bench. Rubino spoke with defendant, smelled a “strong odor” of alcohol on her breath, and
observed that her eyes were bloodshot and glassy. Defendant stated that she consumed one glass
of alcohol at a wedding.
¶ 13 At Rubino’s request, defendant completed the horizontal gaze nystagmus, walk-and-turn,
and one-leg-stand tests. Defendant showed sufficient indicia of impairment on all three tests, so
Rubino arrested her for driving under the influence of alcohol. Rubino transported her to the police
station, where she was read the “Warning to Motorist.” After a 20-minute observation period,
Rubino offered defendant a breathalyzer test, which she refused.
¶ 14 On cross-examination, Rubino stated that it rained that night and the roads were wet.
Defendant informed Rubino that she drove straight because “she was following her GPS.” Rubino
never asked defendant whether she had a concussion because she refused medical attention at the
scene.
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¶ 15 The State published footage from the dashboard camera of a police vehicle, which is
included in the record on appeal. The footage, which includes audio, depicts Rubino speaking with
defendant, and defendant performing the field sobriety tests.
¶ 16 The State rested, and Wright informed the court that defendant wished to testify against
counsel’s advice.
¶ 17 Defendant testified that on June 9, 2019, she attended a wedding where she fought with her
daughter. Defendant had one or two glasses of alcohol, and then drove home using GPS. On the
drive, defendant’s heel “got stuck” and her vehicle drove straight into a ditch. The event was a
“blur” because defendant sustained a concussion and experienced short-term memory loss. She
had a “piece of wood” removed from her finger at the emergency room. She sustained concussions
on two previous occasions, but did not know whether she mentioned a concussion to hospital
personnel.
¶ 18 Judge Steffen continued the case in order to review the video evidence.
¶ 19 On December 3, 2020, Judge Steffen found defendant guilty of driving under the influence
of alcohol and improper lane usage. Judge Steffen believed that defendant had suffered a “prior
concussion,” observed that she was an “emotional person” who might have “slight *** cognitive
difficulties,” and added that her fight with her daughter could have impacted her judgment on the
day of the incident. Judge Steffen noted, however, that “GPS is not the driver,” defendant showed
consciousness of guilt by refusing the breathalyzer test, defendant drank enough to impair her
judgment, and “alcohol was directly responsible for the impairment in which she drove.”
¶ 20 Immediately after the ruling, as Judge Steffen related defendant’s appellate rights,
defendant interjected that she “did not know that my Public Defender did not have all the
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information from my lawyer. I would have never given my rights up and I didn’t find this out until
afterwards.” Wright responded that prior to trial, Wright sought a continuance and “spoke with
[defendant] about the fact that I did not have the evidence and she insisted that we go into trial on
that date.”
¶ 21 The following colloquy occurred:
“THE COURT: Okay. All I can say, I’m assuming you are speaking of the medical
records.
[DEFENDANT]: No. There is a lot of things that was not [sic] *** I did not know
you didn’t even know about any information. *** I would’ve never [have] given my rights
up, Your Honor.
THE COURT: One second. Just let’s have a conversation, okay. Are you talking
about your information regarding your prior concussion?
[DEFENDANT]: I have a—I have statements that I gave to the public attorney.
THE COURT: I understand. I’m just asking are you talking about not having a—
you are saying something to me as a judge. You don’t have to answer my question, but I’m
asking are you talking about your information regarding your previous concussion?
[DEFENDANT]: No. There is more information from when I had my—when I paid
my first attorney. I did not know that the public defenders didn’t have all the information.
I was not aware of this.
THE COURT: Listen—
[DEFENDANT]: I would never have given my rights up.
THE COURT: I understand.”
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¶ 22 Judge Steffen resumed delivering defendant’s appellate rights without further discussion
regarding defendant’s comments.
¶ 23 Wright filed a motion and amended motion for new trial. Defendant also filed a pro se
motion for new trial stating that she wanted her “rights back for [a] jury trial or mistrial” and was
“given fees waived.”
¶ 24 On March 8, 2021, defendant, Wright, and a supervisor from the public defender’s office
appeared before Judge Steffen. Wright requested a continuance to review “additional information”
provided by defendant. The supervisor explained that “there may be some germane information”
in “additional records” and “police reports” that “were incomplete that were sent to our office.”
Judge Steffen observed that defendant “wants to speak to me directly” and “has a right to present
what she wants to the Court,” but that she should speak to her attorney “before she says anything
further to me.” The case was continued.
¶ 25 During proceedings before Judge Steffen on May 11, 2021, the prosecutor stated that he
“was informed” the defense would not be filing an additional motion for new trial predicated on
“new documents that the defendant was to provide.” Following arguments, Judge Steffen denied
counsel’s motion for new trial. 1
¶ 26 During the sentencing hearing, defendant spoke in allocution and the following colloquy
occurred:
“[DEFENDANT]: I don’t understand because I have evidence that shows that my
heel got stuck in my shoe. That's why I went *** down the ditch. And it shows that I had
1
Judge Steffen did not expressly rule upon defendant’s pro se motion for new trial, but noted that
her jury waiver claim was meritless.
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a concussion, and I have all the documents to show proof, and I was not given—it’s 3.1. I
don’t have the papers. It’s regarding the Disability Act, that you’re supposed to be able to
show discovery, and I was not able to—I was not given that.
THE COURT: Ma’am, I'm asking you to present something in terms of mitigation
for your sentencing. The issue of your guilty finding, et cetera, has been litigated at length
by your attorney. This is not a motion for a new trial. That is over.”
¶ 27 Judge Steffen imposed one year of conditional discharge for driving under the influence of
alcohol and supervision for improper lane usage. 2 Defendant did not file a motion to reconsider
sentence.
¶ 28 On appeal, defendant argues that the trial court failed to conduct an adequate preliminary
Krankel inquiry. According to defendant, the court could not have determined whether the APD
potentially neglected the case where defendant asserted that the APD failed to obtain evidence
from defendant’s prior attorney, but the court did not determine what that evidence was.
¶ 29 Proceedings on a pro se posttrial motion alleging ineffective assistance of counsel are
governed by the procedure developed in Krankel, which encourages the trial court to fully address
the claims alleged and narrow the issues to be addressed on appeal. People v. Roddis, 2020 IL
124352, ¶ 34. A trial court will not automatically appoint new counsel, but must first examine the
factual and legal merits of the defendant’s claim. Id. ¶¶ 35, 61. If the court determines the claim
lacks merit or pertains only to trial strategy, it need not appoint counsel and may deny the motion.
Id. ¶ 35. A claim lacks merit if it is conclusory, misleading, legally immaterial, or does not raise a
2
In imposing sentence, Judge Steffen explained that fines and costs would not be assessed on the
count for improper lane usage because that count “merged along with the DUI.”
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colorable claim of ineffective assistance of counsel. People v. Robinson, 2015 IL App (1st)
130837, ¶ 71. If the allegations show possible neglect, new counsel should be appointed. Roddis,
2020 IL 124352, ¶ 35.
¶ 30 The purpose of a preliminary Krankel inquiry “is to ascertain the underlying factual basis
for the ineffective assistance claim and to afford a defendant an opportunity to explain and support
his claim.” People v. Ayres, 2017 IL 120071, ¶ 24. The trial court may discuss the defendant’s
allegations with counsel and the defendant, and rely “on its knowledge of defense counsel’s
performance at trial and the insufficiency of the defendant’s allegations.” Id. ¶ 12. “A brief
discussion between the trial court and the defendant” may be adequate to determine whether further
action is required regarding the defendant’s claims. People v. Moore, 207 Ill. 2d 68, 78 (2003).
Whether a trial court properly conducted a preliminary Krankel inquiry presents a legal question
which we review de novo. People v. Jolly, 2014 IL 117142, ¶ 28.
¶ 31 Turning to the present case, on July 8, 2020, before Judge Santiago, defendant’s private
counsel withdrew and advised the court that he needed to transfer discovery to the appointed APD,
Wright. On August 11, 2020, before Judge Steffen, defendant asserted that she had difficulty
communicating with Wright, and had “some paperwork” to show the court. On August 21, 2020,
Wright advised Judge Santiago that discovery was complete. Then, on November 18, 2020, Wright
asked Judge Wagner for a continuance to examine “some new information” that defendant
provided. Defendant told Judge Wagner about hardships that the proceedings had caused and that
she had “paperwork.” Counsel reiterated that she wanted to “look into” the “new information,” but
was ready for trial if defendant wished. The case was transferred to Judge Steffen and proceeded
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to trial that same day, but the half-sheet does not mention the discussion that occurred before Judge
Wagner.
¶ 32 Immediately after Judge Steffen found defendant guilty, defendant stated that she “did not
know” that Wright “did not have all the information” from her private attorney, and that she
“would have never given my rights up and I didn’t find this out until afterwards.” Wright
responded that she had sought a continuance and “spoke with [defendant] about the fact that I did
not have the evidence,” but defendant “insisted that we go into trial on that date.” Judge Steffen
repeatedly asked defendant whether the information that Wright lacked pertained to defendant’s
medical records. Defendant said no, but that “there [were] a lot of things,” including statements
that she gave “to the public attorney” and information that she gave her private attorney. She did
not elaborate on the nature of the information, and Judge Steffen did not inquire further.
¶ 33 Defendant’s posttrial statements to Judge Steffen, liberally construed, could be considered
a claim that her trial counsel, the APD, was ineffective for proceeding to trial without investigating
information relevant to her case. See People v. Clifton, 2019 IL App (1st) 151967, ¶ 90 (the
defendant’s “specific allegations” that counsel failed to investigate witnesses and did not discuss
the case with him sufficed to trigger a preliminary Krankel inquiry). Further, viewing the record
as a whole, we cannot say the court conducted an adequate preliminary investigation into
defendant’s allegations.
¶ 34 As noted, after defendant raised her posttrial complaint of ineffective assistance, Judge
Steffen asked whether defendant was alleging that her private counsel had not given medical
records to Wright. Defendant answered negatively, without clarifying the evidence to which she
was actually referring. Wright, in turn, asserted that defendant insisted on proceeding to trial before
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Wright could review evidence that defendant provided that day, but did not explain what evidence
defendant had provided. Judge Steffen did not query defendant or Wright to clarify the issue. Thus,
notwithstanding that Judge Steffen heard from both defendant and Wright, the colloquy did not
establish what evidence defendant and Wright were discussing or whether they were discussing
the same evidence.
¶ 35 Moreover, multiple judges presided during defendant’s pretrial proceedings. Significantly,
Judge Wagner, and not Judge Steffen, presided on the morning of trial when counsel advised the
court that defendant had provided new information and defendant nonetheless elected to proceed
to trial. The half-sheet entries for the morning’s proceedings do not reference that colloquy.
Consequently, although a trial judge may rely on personal knowledge of the proceedings in
conducting a preliminary Krankel inquiry, in this case, the record does not establish that Judge
Steffen knew of the earlier proceedings. Given these circumstances, the record does not show that
the posttrial colloquy between defendant, counsel, and Judge Steffen, coupled with the personal
knowledge of counsel’s performance then available to Judge Steffen, was adequate to determine
whether further action was required regarding defendant’s claims. See Moore, 207 Ill. 2d at 78.
¶ 36 For the foregoing reasons, we remand the matter to the trial court for the limited purpose
of conducting a preliminary Krankel hearing on defendant's ineffective assistance of counsel
claim, and otherwise affirm.
¶ 37 Affirmed in part; remanded with directions.
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