People v. Maya , 431 Ill. Dec. 566 ( 2019 )

2019 IL App (3d) 180275
Opinion filed March 28, 2019
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2019
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-18-0275
v. ) Circuit No. 14-CF-274
)
ERICK M. MAYA, ) Honorable
) Daniel D. Rippy,
Defendant-Appellant. ) Judge, Presiding.
_____________________________________________________________________________
JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
Justices McDade and O’Brien concurred in the judgment and opinion.
_____________________________________________________________________________
OPINION
¶1 Following a preliminary Krankel inquiry, the Will County circuit court found no possible
neglect of the defendant’s case on the part of defense counsel, and declined to appoint new
counsel. On appeal, the defendant argues that the circuit court’s finding was manifestly
erroneous.
¶2 I. BACKGROUND
¶3 The State charged the defendant, Erick M. Maya, with first degree murder (720 ILCS
5/9-1(a)(1) (West 2014)), attempted first degree murder (id. § 8-4(a), 9-1(a)(1)), and unlawful
use of a weapon by a felon (id. § 24-1.1(a)).
¶4 During jury selection, venire member Kevin McGrath indicated that he worked as a
correctional officer with the Will County Sheriff’s Department. He also indicated that his son-in-
law was an assistant state’s attorney in Will County. McGrath denied that he would let prejudice
or bias affect his ability to be fair and impartial. McGrath was called in for further questioning
regarding his son-in-law. McGrath indicated that he would not speak to his son-in-law about the
case, and it would not “be an issue” if he found the defendant not guilty. No questions were
asked regarding McGrath’s profession. The defendant’s attorneys did not move to dismiss
McGrath.
¶5 The parties agreed that they would each be allotted seven peremptory challenges. The
defendant’s attorneys used five of their seven challenges. McGrath was seated as the first
alternate juror. When a juror became ill during the State’s case-in-chief, McGrath was, by
agreement of the parties, seated on the jury. At the conclusion of the defendant’s trial, the jury
found him guilty on all charged counts.
¶6 On October 8, 2014, the defendant filed a pro se motion for a new trial in which he
alleged that George Lenard, one of his attorneys, had been ineffective. 1 Among his claims, the
defendant alleged that he was deprived of a fair trial by an impartial jury in that:
“(a) Defendant informed his attorney that a correctional officer from the
facility housing him in [sic], and whom the defendant has had issues and conflicts
with, was in the jury pool.
(b) Defendant’s attorney knowingly refused to use a peremptory strike to
remove said juror.
1
Though the defendant was represented by two defense attorneys throughout his trial, each of his
posttrial claims of ineffectiveness have been levied against only Lenard.
2
(c) Defendant’s attorney stated that he would rather have the correctional
officer on the jury than a venireman who was a State’s Attorney.”
¶7 At a hearing on October 14, 2014, defense counsel told the court that the defendant
wished to withdraw his pro se motion. The defendant confirmed that he was voluntarily
withdrawing his motion. Defense counsel subsequently filed a motion for a new trial on the
defendant’s behalf, which was denied. On October 20, 2014, the court sentenced the defendant to
consecutive sentences of 72 years’ imprisonment for first degree murder, 39 years’ imprisonment
for attempted first degree murder, and 11 years’ imprisonment for unlawful use of a weapon by a
felon. Prior to sentencing, a presentence investigation report (PSI) was filed. The PSI stated that
defendant reported that he had never been diagnosed with a mental health illness or disorder.
¶8 Defense counsel filed a motion to reconsider sentence. Soon thereafter, the defendant
filed a pro se motion for sentence reduction. In the motion, the defendant again alleged that
counsel had been ineffective for failing to move to strike a juror who worked as a correctional
officer and with whom the defendant had engaged in “several confrontations.” The defendant
also alleged that defense counsel had been ineffective for failing “to conduct and [sic]
investigation or subpoena [the defendant’s] hospital records, which would have forced the State
to order a psychological evaluation.” At a hearing on those motions, the court did not allow the
defendant to argue any of his ineffectiveness claims, only allowing him to address the single
issue in his motion that related to sentencing. The court denied the motion.
¶9 The defendant filed another pro se motion for a new trial on January 29, 2015. In that
motion, the defendant reiterated his previous claims of ineffective assistance of counsel. The
court did not address the motion.
3
¶ 10 On direct appeal, this court rejected the defendant’s argument that defense counsel had
been ineffective for failing to request a jury instruction relating to other-crimes evidence. People
v. Maya, 2017 IL App (3d) 150079, ¶ 96. However, we agreed with the defendant’s argument—
and the State’s confession of error—that the circuit court had failed to properly address his
numerous posttrial claims of ineffective assistance of counsel. Id. ¶¶ 104-05. We remanded the
matter with instructions that the court conduct a preliminary Krankel inquiry. Id. ¶ 105.
¶ 11 On remand, the court allowed the defendant to expound on his claims. The defendant’s
exposition, along with occasional questions from the court, spans 21 pages of record. Within that
discourse, the defendant stated:
“Mr. George Lenard *** allowed me to have a tainted jury which had a
correctional officer from the housing unit where I was housed named Kevin
McGrath, who I had several altercations with who would tell other inmates about
my case. Since my case was against a minor and—and two females, he would tell
other inmates in hopes to have them attack me and who would come to my cell
and verbally insult me. Before trial he knew who I was by me having a high
profile case and eventually working on my *** POD nine times before trial ***.
After I informed George Lenard about him, he responded telling me, ‘Oh, well,
we rather have him rather than anyone else or the venireman who’s a State’s
Attorney.’ In another occasion, after I informed him I didn’t want him on my jury,
he told me, ‘Well, he said he was going to be fair.’ This [correctional officer]
clearly had hatred towards me so of course he was going to find me guilty.”
¶ 12 The defendant also stated that he informed Lenard of his mental health history, but
Lenard refused to order a psychological test to determine if he was fit to stand trial. The
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defendant testified that Lenard failed to subpoena the defendant’s hospital records or to consider
an insanity defense. The defendant stated that he had been diagnosed with psychotic disorder and
had been prescribed medication for schizophrenia, depression, anxiety attacks, and panic attacks.
¶ 13 The court then called Lenard to testify. The court briefly examined Lenard. The court
asked Lenard if he ever had a good-faith belief that there was an issue with the defendant’s
fitness or a proper defense of insanity. Lenard replied: “No, Judge. In fact, there was a lot of, um,
discussions between myself and [the defendant] that indicated the opposite.” The court asked no
questions related to McGrath or the composition of the jury. At a later date, after having
reviewed the trial record and transcripts, the court found that the defendant had not shown a
possible neglect of the case, and declined to appoint counsel.
¶ 14 II. ANALYSIS
¶ 15 On appeal, the defendant argues that he sufficiently demonstrated possible neglect of his
case, and that the circuit court’s finding to the contrary was manifestly erroneous. Specifically,
he claims that he showed that defense counsel possibly neglected his case in that counsel failed
to (1) strike McGrath and (2) investigate the defendant’s mental health issues. The defendant
does not, however, challenge the procedures employed by the circuit court in conducting the
preliminary inquiry.
¶ 16 Through People v. Krankel, 102 Ill. 2d 181 (1984), and its progeny, our supreme court
has developed a procedural framework for the resolution of pro se posttrial claims of ineffective
assistance of counsel. Where a defendant makes a posttrial claim of ineffective assistance of
counsel, the circuit court must conduct a preliminary inquiry into those claims. People v. Moore,
207 Ill. 2d 68, 77 (2003). One goal of this preliminary inquiry is to allow the circuit court to
create the necessary record for any claims raised on appeal. People v. Jolly, 2014 IL 117142,
5
¶ 38; see also Moore, 207 Ill. 2d at 81 (observing that appellate review is precluded where the
circuit court makes no record of a defendant’s claims). If, after this preliminary inquiry, the
circuit 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.” Moore, 207 Ill.
2d at 78. If the court instead determines that there has been “possible neglect of the case,” it must
appoint new counsel to represent the defendant at a full hearing on his claims on ineffective
assistance. Id.
¶ 17 A court’s determination that a defendant’s claim does not demonstrate a possible neglect
of the case will be reversed where that decision is manifestly erroneous. E.g., People v.
Robinson, 2017 IL App (1st) 161595, ¶ 90. “Manifest error is error which is ‘ “clearly evident,
plain, and indisputable.” ’ ” People v. Morgan, 212 Ill. 2d 148, 155 (2004) (quoting People v.
Johnson, 206 Ill. 2d 348, 360 (2002), quoting People v. Ruiz, 177 Ill. 2d 368, 384-85 (1997)).
¶ 18 A. Failure to Strike McGrath from the Jury
¶ 19 1. Procedural Arguments
¶ 20 We first consider the defendant’s claim that the circuit court’s ruling was manifestly
erroneous where the court found that the defendant failed to show possible neglect of his case
based on defense counsel’s failure to strike McGrath from the jury. We begin our analysis of this
issue by addressing two procedural arguments raised by the State. First, the State contends that
the defendant has forfeited his present argument by failing to raise it in his first direct appeal.
The State’s argument proceeds as follows:
“Defendant raised in his direct appeal the issue that the trial judge failed to
hold a Krankel hearing on his additional claims of ineffective assistance;
therefore, this claim was known to defendant prior to the filing of his direct
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appeal. [Citation.] Defendant has forfeited in this second appeal review of this
known issue of record by failing to raise it in his direct appeal.”
¶ 21 This argument suffers from numerous flaws. Initially, the State seems to imply that by
requesting a preliminary Krankel inquiry in his first direct appeal, the defendant has forfeited the
actual claims of ineffectiveness that underlie that request. If this were the case, then the Krankel
procedure would be rendered wholly meaningless. Moreover, that the present issue “was known
to defendant prior to the filing of his direct appeal” is irrelevant. A number of facts pertinent to
the defendant’s claim—such as the substance of his conversations with counsel—were not on the
record on his first appeal, thus requiring that a preliminary Krankel inquiry be held to establish
the necessary record. See Jolly, 2014 IL 117142, ¶ 38.
¶ 22 Next, the State argues that the defendant’s claim is refuted by his own posttrial filings.
Specifically, it notes that the defendant did not mention McGrath by name in any of his three
pro se posttrial filings, and never included his allegation that McGrath incited other inmates to
attack him. A bare claim of ineffectiveness, unsupported by any facts, is sufficient to require the
circuit court to conduct a preliminary Krankel inquiry. People v. Ayres, 2017 IL 120071, ¶¶ 18-
21. “[T]he primary purpose of the preliminary inquiry is to give the defendant an opportunity to
flesh out his claim.” Id. ¶ 20. The defendant’s statements at the preliminary inquiry identifying
McGrath by name and indicating that McGrath incited other inmates to attack the defendant did
not contradict any of the defendant’s previous claims. Rather, these statements merely elaborated
on the defendant’s previous claims—precisely the procedure contemplated by Krankel and its
progeny.
¶ 23 2. Trial Strategy
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¶ 24 We next address the State’s argument that the court did not err in finding that the
defendant failed to show possible neglect of his case because counsel’s decision not to exercise a
peremptory challenge on McGrath was a matter of trial strategy. Our supreme court has stated
that the circuit court may decline to appoint new counsel following a preliminary Krankel
inquiry where the defendant’s claim “pertains only to matters of trial strategy.” E.g., Moore, 207
Ill. 2d at 78. We recognize that this statement, read most strictly, could imply that any claim
possibly relating to trial strategy is per se exempt under Krankel. However, we find such a
reading to be inconsistent with current precedent concerning claims of ineffective assistance of
counsel based on trial strategy.
¶ 25 The standard under which all claims of ineffective assistance of counsel are analyzed was
set forth in the seminal case of Strickland v. Washington, 466 U.S. 668 (1984). In establishing
that standard, the United States Supreme Court cautioned that judicial scrutiny of counsel’s
performance must be highly deferential. Id. at 689. The Court held: “[A] court must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the circumstances,
the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). Our own supreme court has reaffirmed and emphasized this
position on numerous occasions. E.g., People v. Coleman, 183 Ill. 2d 366, 397 (1998) (“[A]
defendant must overcome the strong presumption that the challenged action or inaction of
counsel was the product of sound trial strategy and not of incompetence.”); People v. Dupree,
2018 IL 122037, ¶ 44; People v. Peterson, 2017 IL 120331, ¶ 80 (“[T]he strong presumption that
counsel’s strategy was sound may be overcome where counsel’s decisions appear to be so
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irrational that no reasonably effective defense attorney in similar circumstances would pursue
such a strategy.” (citing with approval People v. Lewis, 2015 IL App (1st) 122411, ¶ 85)). 2
¶ 26 To be sure, both the United States and Illinois Supreme Courts have made clear that the
notion of trial strategy presents a tall hurdle for a defendant raising a claim of ineffective
assistance of counsel. But neither court has held that matters involving counsel’s trial strategy
are unavoidably or absolutely exempt from such a claim. Our supreme court’s repeated
references to overcoming the presumption of sound trial strategy necessarily dictate that that
presumption can, in fact, be rebutted. See, e.g., People v. Miller, 2013 IL App (1st) 110879, ¶ 84
(“[D]efendant rebutted the presumption that his counsel’s decision not to attempt to suppress the
statement constituted trial strategy.”).
¶ 27 As the cases cited above demonstrate, a strict interpretation of our supreme court’s
statement that the circuit court may decline to appoint new counsel following a Krankel inquiry
if the defendant’s claim “pertains only to matters of trial strategy” (e.g., Moore, 207 Ill. 2d at 78)
is untenable. Given that a defendant may, at least potentially, overcome the strong presumption
of sound trial strategy, a circuit court should not dismiss a claim of ineffectiveness on the bare
fact that it may relate to trial strategy. As we explained above, Krankel and its progeny simply
create a procedural framework for the resolution of posttrial claims of ineffectiveness. It would
be illogical to hold such claims to a more rigorous standard than any other claim of ineffective
assistance. It would make especially little sense in the context of the preliminary inquiry, where a
defendant need not actually demonstrate ineffective assistance, but merely show possible neglect
of the case. See, e.g., People v. Roddis, 2018 IL App (4th) 170605, ¶¶ 97-100 (comparing the
preliminary Krankel inquiry to the first stage of postconviction proceedings).
2
In Lewis, 2015 IL App (1st) 122411, ¶ 85, the First District collected a number of cases in which
defendants successfully overcame the presumption of sound trial strategy.
9
¶ 28 In reaching this conclusion, we are mindful of the fact that our supreme court, when
identifying types of duties performed by counsel that are particularly strategic in nature, often
uses strong language referring to their susceptibility to ineffectiveness challenges, calling certain
actions “virtually unchallengeable” (People v. Palmer, 162 Ill. 2d 465, 476 (1994)) or “generally
immune” (People v. Enis, 194 Ill. 2d 361, 378 (2000)) from ineffectiveness claims. We would
note that even these cases use conditional language. Further, we are unaware of any case holding
that claims of ineffectiveness are per se and absolutely barred where they touch on a matter of
possible trial strategy.
¶ 29 This principle is illustrated in People v. Manning, 241 Ill. 2d 319 (2011), a case in which
the supreme court considered a claim that counsel had been ineffective for failing to strike a juror
during voir dire. After repeating that counsel’s strategic decisions are “virtually
unchallengeable,” the court also pointed out that it had never previously held that counsel’s
actions during voir dire were subject to scrutiny under the Strickland standard. Id. at 333. Yet,
the analysis proceeded. The court expressly considered the reasoning of allowing the juror in
question to remain, and postulated strategic reasons that counsel may have done so. Id. at 335.
The court concluded:
“Under these circumstances, given [the juror’s] conflicting answers regarding his
impartiality, we cannot say that counsel’s decision to reserve his two remaining
peremptory challenges was unreasonable. Thus, we disagree with defendant that
[the juror] was ‘plainly and deeply biased,’ and we conclude that counsel’s
actions were a part of his trial strategy and were not deficient under Strickland.”
Id. at 336.
10
¶ 30 As Manning demonstrates, a claim that counsel’s decisions in jury selection amounted to
ineffective assistance is not wholly immune from review. Accordingly, we find that, under
certain circumstances, even a claim of ineffective assistance of counsel that potentially relates to
trial strategy may demonstrate possible neglect of the case, warranting the appointment of
counsel and further posttrial proceedings.
¶ 31 3. Possible Neglect of the Case
¶ 32 Having found that a claim of ineffective assistance of counsel potentially relating to trial
strategy may demonstrate possible neglect of the case, we consider whether the circuit court’s
determination that the defendant failed to establish possible neglect of the case was manifestly
erroneous. In the instant case, the defendant asserted at the preliminary inquiry that a member of
his jury worked as a correctional officer at the jail in which the defendant himself was detained,
the Will County Adult Detention Facility (WCADF). Moreover, the defendant claimed that the
correctional officer, McGrath, worked on the defendant’s “POD,” that the defendant and
McGrath had engaged in “several confrontations,” and that McGrath told other inmates details of
the defendant’s case to induce those inmates to harass the defendant. The defendant alleged that
when he relayed this information to defense counsel, counsel assured the defendant that McGrath
would be impartial, and that counsel would rather have McGrath on the jury than “ ‘anyone else
or the venireman who’s a State’s Attorney.’ ”
¶ 33 The primary fact alleged by the defendant is confirmed in the record. That is, the record
of jury selection clearly shows that McGrath worked as a deputy correctional officer in Will
County, was seated as an alternate on the defendant’s jury, and eventually was seated on the jury
proper when another juror became ill. Whether McGrath worked at WCADF or on the
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defendant’s pod is unconfirmed in the trial record. 3 Further, as is to be expected, neither the
actual extent of the defendant’s relationship with McGrath nor the defendant’s conversations
with counsel on the subject are on the record.
¶ 34 Of course, the preliminary Krankel inquiry provided the opportunity for counsel to shed
some light on the defendant’s claims, at least in regard to any conversations between counsel and
the defendant regarding McGrath. See Moore, 207 Ill. 2d at 78 (“During this [preliminary
inquiry], some interchange between the trial court and trial counsel regarding the facts and
circumstances surrounding the allegedly ineffective representation is *** usually necessary in
assessing what further action, if any, is warranted on a defendant’s claim. Trial counsel may
simply answer questions and explain the facts and circumstances surrounding the defendant’s
allegations.”). Indeed, counsel testified at the preliminary inquiry. Troublingly, however, the
court asked counsel no questions relating to the defendant’s jury claim, and counsel did not
otherwise offer any explanation. As of now, the defendant’s claims stand unrebutted.
¶ 35 If the defendant’s factual allegations are true, the seating of McGrath on the jury that
eventually found the defendant guilty shocks the conscience. The claims that McGrath had
altercations with the defendant in jail and induced other inmates to harass the defendant by
sharing details of his case demonstrate actual malice and bias. Trial before a biased jury is
structural error and requires automatic reversal. People v. Thompson, 238 Ill. 2d 598, 610 (2010).
It is difficult to discern any potential strategy defense counsel might have for allowing a juror
with demonstrated bias toward his client to serve on a jury.
¶ 36 We make no finding as to the credibility of the defendant’s factual allegations. However,
given the serious nature of the allegations, the absence of any explanation from defense counsel
3
It is unclear if McGrath, as a correctional officer in Will County, must have worked at WCADF.
We will not assume this to be the case.
12
as to the facts and circumstances surrounding the allegations, and the fact that the record shows
that McGrath was a Will County correctional officer, we hold that the circuit court’s
determination that the defendant failed to demonstrate possible neglect of the case was
manifestly erroneous. Accordingly, we find that further proceedings on the defendant’s posttrial
claims of ineffectiveness are warranted under the circumstances presented in this case.
¶ 37 B. Failure to Investigate the Defendant’s Mental Health Issues
¶ 38 We next address the defendant’s argument that he showed possible neglect of the case
based on his claim that defense counsel failed to investigate his mental health issues. Unlike the
issue concerning McGrath, the circuit court addressed this issue at the preliminary Krankel
inquiry. Specifically, the court asked defense counsel if he ever believed there was an issue with
the defendant’s fitness or a proper defense of insanity. Defense counsel replied: “No, Judge. In
fact, there was a lot of, um, discussions between myself and [the defendant] that indicated the
opposite.” Also, the defendant’s allegations regarding his history of mental illness were rebutted
by the PSI, in which the defendant reported that he had never been diagnosed with a mental
illness. Accordingly, the circuit court’s determination that the defendant failed to show possible
neglect of his case with regard to this claim was not manifestly erroneous.
¶ 39 III. CONCLUSION
¶ 40 The judgment of the circuit court of Will County is reversed. The matter is remanded for
the appointment of new counsel to represent the defendant on his posttrial claim that defense
counsel was ineffective for failing to strike McGrath from the jury.
¶ 41 Reversed and remanded.
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