People v. Taylor ( 2020 )


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    2020 IL App (1st) 150978-U
    SECOND DIVISION
    December 29, 2020
    No. 1-15-0978
    NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
    precedent by any party 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 Cook County.
    Plaintiff-Appellee,                         )
    )
    v.                                                )   No. 11 CR 12410 (03)
    )
    CARDELL TAYLOR,                                   )   The Honorable
    )   Geary W. Kull,
    Defendant-Appellant.                        )   Judge Presiding.
    ____________________________________________________________________________
    PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the
    court.
    Justices Lavin and Cobbs concurred in the judgment.
    ORDER
    HELD: Upon our prior limited remand for a preliminary Krankel inquiry, trial
    court’s denial of defendant’s request for the appointment of counsel was not improper for
    considering both the factual and legal merits of the ineffectiveness claim, pursuant to
    supreme court’s recent decision in Roddis, 
    2020 IL 124352
    . However, trial court’s denial
    was manifestly erroneous, as court relied on extraneous and incorrect
    mischaracterizations of evidence presented in the record and admitted it did not have
    recollection of said evidence. Accordingly, this cause is reversed and remanded for the
    appointment of Krankel counsel and a full Krankel hearing, and jurisdiction is retained.
    No. 1-15-0978
    ¶1         Upon limited remand and direction of this Court, defendant-appellant Cardell Taylor’s
    (defendant) cause was ordered back to the trial court for hearing with respect to allegations of
    ineffective assistance of trial counsel. Following that hearing, at which defendant and
    defense counsel appeared, the trial court held that the allegations of ineffectiveness were not
    only meritless but also did not meet the prejudice prong of Strickland v. Washington, 
    466 U.S. 668
     (1984). Defendant now appeals the trial court’s holding on limited remand,
    contending that the court committed reversible error by ruling on the merits of his claim
    instead of appointing new counsel pursuant to People v. Krankel, 
    102 Ill. 2d 181
     (1984), as
    he demonstrated possible neglect of his case. He asks that, based on the reasons in his
    original opening and reply briefs, we reverse his convictions and remand for a new trial; or,
    that we remand his cause for appointment of new counsel to litigate his ineffective assistance
    claim based on the instant supplemental contentions herein; or, alternative to all this and if no
    further hearing is ordered, that we vacate seven of his eight convictions based on his original
    briefs filed on appeal. For the following reasons, we reverse and again remand his cause to
    the trial court, this time for appointment of new counsel to litigate defendant’s ineffective
    assistance claim, and we again retain jurisdiction over this cause as a whole.
    ¶2                                          BACKGROUND
    ¶3         As our ruling concerns only the subsequent hearing regarding ineffectiveness of trial
    counsel that took place pursuant to our remand, we recount for the record only those facts of
    the underlying appeal relevant herein.
    ¶4         Following a jury trial, defendant was convicted of eight counts of first degree murder in
    the July 2011 killing of Chevron Alexander, which took place in the parking lot of
    Dominican Priory Park in River Forest, Illinois. The victim, who was pregnant, was shot
    2
    No. 1-15-0978
    once in the face and three times in the shoulder while sitting in the front passenger seat of a
    parked car. The State’s theory on the case was that codefendant Devin Bickham, Sr. asked
    his son, codefendant Devin Bickham, Jr., to contract with defendant to murder the victim,
    who was engaged to codefendant Bickham, Sr., and that the three worked together and
    carried out that agreement on the night in question. Following his guilty verdict, and due to
    the jury’s additional findings that defendant committed the murder pursuant to contract,
    agreement or understanding and personally discharged a firearm that proximately caused the
    death of the victim, defendant was sentenced to 4 concurrent terms of 70 years in prison. 1
    ¶5           On appeal in our Court, defendant presented several issues for our review, among them,
    that the trial court erred in failing to conduct a Krankel hearing after trial counsel confessed
    sua sponte to the trial court in a posttrial motion to providing ineffective assistance due to her
    failure to memorialize, in writing, an agreement she had with the prosecutor to present the
    stipulated direct testimony of a particular witness, Bryan Johnson, at trial. Counsel explained
    to the trial court that Johnson’s testimony would have gone directly to the identification of
    1
    Codefendants Bickham, Sr. and Bickham, Jr. were tried in simultaneous but severed jury trials, while defendant
    was tried in a completely separate jury trial from the two. Bickham, Sr. was convicted of two counts of first degree
    murder with the additional factors that he committed it with a firearm and in a cold, calculated and premeditated
    manner. He received 2 concurrent terms of 95 years in prison. On appeal, we affirmed his conviction on one count
    but, due to one-act, one-crime doctrine concerns and upon the State’s concession, we vacated the other and corrected
    his mittimus accordingly, and we necessarily remanded his cause for resentencing, as the trial court improperly
    confused the available applicable sentencing range. See People v. Bickham, Sr., No. 1-14-2895-U (May 10, 2017)
    (unpublished order under Supreme Court Rule 23), modified upon denial of rehearing (July 19, 2017). On remand,
    codefendant Bickham, Sr. was resentenced to 70 years in prison. He appealed that sentence, and we affirmed. See
    People v. Bickham, Sr., No. 1-18-2054-U (December 22, 2020) (unpublished order under Supreme Court Rule 23).
    Codefendant Bickham, Jr. was convicted of two counts of first degree murder with the additional factors
    that he committed it with a firearm and pursuant to contract, agreement or understanding. He received two
    concurrent terms of 50 years in prison. On direct appeal, we affirmed his conviction and sentence on one count, but
    again due to one-act, one-crime doctrine concerns and upon the State’s concession, we vacated one of his
    convictions and modified his mittimus accordingly. See People v. Bickham, Jr., No. 1-14-2894-U (March 22, 20170
    (unpublished order under Supreme Court Rule 23). Recently, codefendant Bickham, Jr. again appeared before this
    Court seeking appeal from the first-stage summary dismissal of his request for pro se postconviction relief. We
    reversed and remanded, finding that his claims were not frivolous or patently without merit, and ordered second
    stage postconviction proceedings in his cause. See People v. Bickham, Jr., No. 1-18-1883-U (November 17, 2020)
    (unpublished order under Supreme Court Rule 23).
    3
    No. 1-15-0978
    Bickham, Jr. as the shooter and would have explicitly supported the defense’s contention that
    defendant did not shoot the victim; yet, the prosecutor decided at the last minute not to call
    Johnson, who had otherwise testified in Bickham, Jr.’s and Bickham, Sr.’s trials, and
    counsel, who insisted that the parties had agreed that he would testify, had failed to obtain
    this stipulation in writing or ensure it was binding. The trial court, however, did not conduct
    any inquiry into this assertion of ineffectiveness because defendant himself did not raise it.
    ¶6         Citing a split in authority between districts as to whether the matter was reviewable since
    it was defense counsel, rather than defendant pro se, who raised the posttrial claim of
    ineffectiveness, we held, first, that it does not matter how a claim came to be; once it is raised
    before the trial court, that court cannot simply ignore or fail to address it without considering
    its merits. We then further held that the trial court was required to conduct some sort of
    inquiry to satisfy the principles of Krankel, which required a determination as to whether
    defense counsel’s alleged error showed possible neglect of defendant’s case such that he
    should be appointed counsel, since the court had failed to do so posttrial in error and in
    violation of its duties under Krankel. Accordingly, we remanded the cause for the limited,
    and sole, purpose of conducting a hearing on this particular claim, namely, defense counsel’s
    failure to properly secure witness Johnson’s testimony. See People v. Taylor, 
    2018 IL App (1st) 150978-U
    . Additionally, and upon denial of rehearing, we specifically modified our
    decision to retain jurisdiction over the cause to review, if subsequently called upon by the
    parties following the ordered Krankel hearing on remand, the trial court’s determination with
    respect to the demonstration of possible neglect and the necessity of the appointment of new,
    Krankel counsel. See People v. Taylor, 
    2018 IL App (1st) 150978-U
    , modified upon denial
    of rehearing.
    4
    No. 1-15-0978
    ¶7         On remand, defendant and defense counsel again appeared before the trial court. Defense
    counsel asked the trial court for a continuance to locate and retrieve her trial file; she reported
    that it was important for her to look at it “for a couple reasons” before making argument,
    including that she needed a chance to review her notes, investigative reports and materials
    from the case (which she had tried long ago at this point), so she could convey exactly the
    content of Johnson’s testimony and why it was critical, as well as the precise details of the
    agreement she had with the prosecutor at that time to secure Johnson’s testimony—the two
    points noted in this Court’s remand. The trial court stated that, regardless of her notes on
    these points, it recalled that Johnson’s testimony was the same at both codefendants’ trials in
    that he saw a man in “a white shirt and khaki shorts” standing alone at the front entrance of
    the parking lot and then run across the street, and that he next heard another man yell that his
    girlfriend had been shot, but he could not positively identify anyone. The court continued by
    expressing to counsel that the rest of the record in the matter showed that her representation
    of defendant was “lengthy, thorough, complete, [and] effective.” It therefore concluded:
    “I think I have to give you an opportunity to tell me whether or not your notes say
    something different than common sense would dictate that they could say, that
    somewhere, some investigator talked to [Johnson] and that he all of a sudden said
    something that was even more important, at least as far as your position in the case was
    that it appears it could be. And as much as I don’t want to continue it, *** unless
    [Johnson] was going to say -- and you could show me that [Johnson] was going to say
    that he saw somebody else doing the shooting -- it would not have changed the outcome
    of this trial under any set of circumstances in that within minutes of the shooting,
    [defendant] was found within the car driven by Bickham Junior with the described
    5
    No. 1-15-0978
    clothing on *** with the murder weapon in the car, with the spontaneous utterance
    saying, I want my money now, and a gunshot residue on his shirt.”
    Despite its feelings, however, the trial court allowed defense counsel’s motion for a
    continuance.
    ¶8         When the court reconvened, defense counsel appeared and stated she had found her file
    on defendant’s case. The court asked counsel to reveal what it was that she “expected
    Johnson to say other than what he said in the other two cases.” She informed the trial court
    that, according to her notes, she would “characterize [Johnson’s] testimony a little bit
    differently” than that which he gave at codefendants’ trials. As counsel explained, while
    Johnson testified at those trials that the shooter, or person he saw in the parking lot closest to
    the car in which the victim was murdered and then running away from it, was wearing light-
    colored khaki shorts, defendant, who was pulled over with Bickham, Jr. only moments after
    the shooting, was actually wearing black shorts; Bickham, Jr. was the one wearing khaki-
    colored shorts. She concluded, therefore, that Johnson’s testimony would have clearly
    supported the defense’s theory on the case that Bickham, Jr., and not defendant, was the
    shooter.
    ¶9         The trial court responded:
    “Well, I do not have an independent recollection as to what Mr. Bickham was
    wearing as he was driving the vehicle with he and [defendant] in it immediately after
    the shooting.
    Mr. Bickham and [defendant] were stopped by the police and placed initially into
    custody where [defendant] asked for his money for -- immediately for doing the
    6
    No. 1-15-0978
    shooting and that the weapon was recovered and that -- there were other statements
    by [defendant] as to his participation in here.
    So although -- I’m not even sure if that was the case, but I cannot see any
    difference that would have happened in this trial as a result of [Johnson] testifying.”
    The court went on to state that, regardless of whether counsel had an agreement with the
    prosecutor that Johnson would testify, it was a “moot point” because while she may have had
    a right to rely on that agreement, based on what it noted in its colloquy here, “the second
    prong [of Strickland] would not be met.” With this, the court denied the Krankel motion and
    concluded the matter, sending it back to our Court per our retained jurisdiction.
    ¶ 10                                              ANALYSIS
    ¶ 11         On appeal, defendant contends that the trial court here committed reversible error during
    the preliminary Krankel hearing by ruling on the merits of his claim of ineffective assistance
    rather than appointing new counsel in light of defense counsel’s possible neglect of the case.
    He asserts that, pursuant to Krankel mandates, the trial court was permitted to determine at
    this point only whether he established that defense counsel had possibly neglected his cause
    and, if so, whether new counsel was necessary to argue a claim of ineffectiveness on his
    behalf. He insists that the trial court here, however, went impermissibly further and
    evaluated whether his allegation regarding counsel’s failure to secure Johnson as a witness
    established ineffective assistance and, after improperly concluding that it did not, denied his
    claim. As he explains, since he was not required to prove ineffectiveness at this stage but
    only possible neglect, and as he did so based on what occurred during this hearing, the trial
    court was required to appoint Krankel counsel and proceed accordingly.
    7
    No. 1-15-0978
    ¶ 12              We note that in his supplemental brief on appeal, defendant relies heavily on People v.
    Roddis, 
    2018 IL App (4th) 170605
    , as well as People v. Ieliot Jackson, 
    2016 IL App (1st) 133741
    , for his argument. Both of these cases held that a trial court commits reversible error
    when, during a preliminary Krankel inquiry, it considers the legal merits of an
    ineffectiveness claim, in addition to the factual merits, to find there was no ineffective
    assistance of trial counsel. See Roddis, 
    2018 IL App (4th) 170605
    , ¶ 81; Ieliot Jackson, 
    2016 IL App (1st) 133741
    , ¶ 77 (trial court impermissibly moved directly to the merits of the claim
    and rejected them as falling short of Strickland standards without first attempting to
    determine whether sufficient facts were alleged to show possible neglect and deciding
    whether to appoint Krankel counsel; this, alone, is reversible error and new Krankel hearing
    is required).
    ¶ 13              However, subsequent to the filing of his supplemental brief, our state supreme court
    issued its decision in People v. Roddis, 
    2020 IL 124352
    , reversing that decision below. 2
    ¶ 14              Defendant then moved our Court to cite Roddis as additional authority. However, he
    cited it not for its new holding, which effectively runs counter to his argument on appeal, but
    for a different reason, which we will discuss in a moment. We allowed defendant’s motion.
    Thereafter, the State filed a response to defendant’s motion, arguing that Roddis does not
    stand for the proposition for which he was attempting to use it as support. However, the
    State also made clear in its response that Roddis should nonetheless be considered by our
    Court, as it directly refutes defendant’s primary argument of trial court error and renders his
    appeal meritless.
    2
    Ieliot Jackson has not been reversed and remains good law. We will discuss this further below.
    8
    No. 1-15-0978
    ¶ 15         Normally, we would turn to defendant’s and the State’s briefs in this cause and address
    the content of their arguments. However, we cannot proceed that way here. To make logical
    and legal sense of all that is involved, we must first begin with an analysis of Krankel and of
    Roddis and how Roddis supports, or does not support, the contentions raised by both
    defendant and the State in light of its recent holding. We will then go on to explain the
    ultimate impact of Roddis on the particular facts before us in this case.
    ¶ 16                                          Krankel Principles
    ¶ 17         In our prior decision in this cause, we devoted much time to a thorough analysis of
    Krankel, its purpose, and its mandates. The question raised by defendant here and now
    involves how Krankel is to be navigated.
    ¶ 18         It is axiomatic that whether the trial court properly conducted a preliminary Krankel
    inquiry to determine if the defendant was entitled to appointment of new counsel during a
    posttrial hearing on a claim of ineffective assistance is a legal question that we review de
    novo. See People v. Jolly, 
    2014 IL 117142
    , ¶ 28; accord Ieliot Jackson, 
    2016 IL App (1st) 133741
    , ¶ 68. Of course, new counsel is not automatically required in response to every
    Krankel inquiry. See Jolly, 
    2014 IL 117142
    , ¶ 29; People v. Moore, 
    207 Ill. 2d 68
    , 78
    (2003). However, the trial court, upon the presentation of a posttrial claim of ineffective
    assistance of trial counsel, has a duty to determine either whether the claim lacks merits and
    pertains only to trial strategy, or, whether the allegation shows possible neglect of the case by
    trial counsel. See Jolly, 
    2014 IL 117142
    , ¶ 29; Moore, 
    207 Ill. 2d at 78
    . In the first instance,
    new counsel is not required to be appointed, but in the second instance, once possible neglect
    has been shown, the trial court is to appoint new counsel. See Jolly, 
    2014 IL 117142
    , ¶ 29;
    Moore, 
    207 Ill. 2d at 78
    . That new counsel, then, is to represent the defendant at a hearing on
    9
    No. 1-15-0978
    the claim of ineffectiveness, evaluate the claim independently, and argue on the defendant’s
    behalf in place of trial counsel in order to avoid the conflict of interest that trial counsel
    would experience if she were to have to present the matter and argue against herself. See
    Moore, 
    207 Ill. 2d at 78
    . With this independent evaluation, the defendant’s claim is fully
    addressed and the trial court can then make a neutral determination as to whether original
    counsel was truly ineffective with respect to the instance cited.
    ¶ 19          That is the path of what is to occur, from preliminary Krankel inquiry when a defendant
    makes the claim to the full address of that claim with new counsel present in an evidentiary
    hearing once (and if) the defendant shows possible neglect. See Ieliot Jackson, 
    2016 IL App (1st) 133741
    , ¶ 69. What has become clear over the course of Krankel’s development
    throughout our jurisprudence is this: the threshold upon the defendant on this path is
    undeniably low. A defendant need not make his ineffectiveness claim in a written motion,
    nor must he support it with specific facts or examples. See People v. Ayers, 
    2017 IL 120071
    ,
    ¶¶ 11, 18-19. Instead, to trigger the trial court’s duty to properly examine the underlying
    matters of his claim, a defendant “is not required to do any more than bring his or her claim
    to the trial court’s attention.” People v. Moore, 
    207 Ill. 2d at 79
    ; see People v. Bennie Bobo,
    
    375 Ill. App. 3d 966
    , 985 (2015); accord Ayers, 
    2017 IL 120071
    , ¶ 18 (as long as the claim is
    clear and asserts ineffective assistance of counsel, this is sufficient to trigger the trial court’s
    duty to conduct a Krankel inquiry). Accordingly, a defendant is not required to, at this point,
    prove that his trial counsel was ineffective, nor must he prove that trial counsel’s
    ineffectiveness affected the outcome of his trial such that reversal or remand is warranted.
    Rather, all a defendant must do to trigger the trial court’s duty of full inquiry—full
    evidentiary hearing with the appointment of Krankel counsel to fully present the
    10
    No. 1-15-0978
    ineffectiveness claim to the trial court in a proceeding—is to assert such a claim and show
    “possible”—not certain, not sufficient, not even probable—neglect of his case took place.
    See Ayers, 
    2017 IL 120071
    , ¶ 18; accord Ieliot Jackson, 
    2016 IL App (1st) 133741
    , ¶ 77.
    ¶ 20         Now, that inquiry on the part of the trial court must be “ ‘adequate’ ”—“ ‘inquiry
    sufficient to determine the factual basis of the defendant’s claim.’ ” Ayers, 
    2017 IL 120071
    ,
    ¶ 11, quoting People v. Banks, 
    237 Ill. 2d 154
    , 213 (2010). Again, if the claim lacks merit or
    pertains only to matters of trial strategy, the court need not appoint Krankel counsel; but, if
    the allegations show possible neglect of the case, new counsel should be appointed. See
    Ayers, 
    2017 IL 120071
    , ¶ 11; accord Jolly, 
    2014 IL 117142
    , ¶ 29; Moore, 
    207 Ill. 2d at 78
    .
    In making that inquiry, and as we have discussed so many times, the trial court is to
    implement any one of three methods of interchange between it and the defense to assess what
    further action, if any, is warranted on the defendant’s claim, i.e., if he has shown possible
    neglect. See Ayers, 
    2017 IL 120071
    , ¶ 12; Moore, 
    207 Ill. 2d at 78
    . The court may either
    have a discussion with defense counsel, or it may have a discussion with the defendant
    himself, or it may rely on its own knowledge of the evidence and the insufficiency (or
    sufficiency) of defendant’s allegations in light of what occurred at trial. See Ayers, 
    2017 IL 120071
    , ¶ 12; Moore, 
    207 Ill. 2d at 78-79
    . The key here is, whatever method is employed,
    the inquiry into the allegations of ineffective assistance must be adequate so that the trial
    court gives full consideration to the defendant’s claim. See Ayers, 
    2017 IL 120071
    , ¶ 13;
    Moore, 
    207 Ill. 2d at 78
    ; see also Banks, 
    237 Ill. 2d at 213
    . This full consideration of the
    defendant’s claim is the ultimate essence of Krankel. See Ayers, 
    2017 IL 120071
    , ¶ 13;
    accord Jolly, 
    2014 IL 117142
    , ¶ 38; Ieliot Jackson, 2016 IL app (1st) 133741, ¶ 69 (“[t]he
    procedure developed in Krankel is intended to fully address a defendant’s pro se posttrial
    11
    No. 1-15-0978
    claims of ineffective assistance of trial counsel at the trial level, which would serve to
    potentially limit issues on appeal, or, if such issues are raised on appeal, would provide a
    sufficient record for the reviewing court to consider those claims”).
    ¶ 21          These legal principles have not changed, pre- or post-Roddis.
    ¶ 22          However, as the State points out, defendant’s argument here is that the trial court jumped
    the gun, essentially, by going beyond a consideration of the facts he presented during the
    preliminary Krankel inquiry to also consider the legal merits of his claim of ineffectiveness
    and finding that, regardless of any possible neglect demonstrated, defendant’s claims did not
    meet the Strickland prejudice prong. Defendant does not dispute this, and even a summary
    glance at his supplemental brief reveals that this is exactly what he argues. Unfortunately for
    him, the supreme court’s decision in Roddis has rendered this precise argument no longer
    applicable or germane for review.
    ¶ 23                                  Supreme Court Decision in Roddis
    ¶ 24          Following his conviction for aggravated domestic battery, the defendant in Roddis filed a
    pro se motion alleging, in part, ineffective assistance of trial counsel, but the trial court
    denied the motion as untimely. On appeal, the reviewing court affirmed the conviction but
    remanded for a hearing on the defendant’s claims of ineffective assistance in compliance
    with Krankel. See Roddis, 
    2020 IL 124352
    , ¶¶ 16-17.
    ¶ 25          On remand, the trial court held a pre-Krankel inquiry with the defendant and his trial
    counsel present regarding the claims of ineffectiveness the defendant had raised. The court
    explained that if his allegations were denied, it would move onto other issues, but if it
    concluded that the allegations had possible merit, it would appoint separate counsel and
    conduct a “ ‘full-blown Krankel hearing.’ ” Roddis, 
    2020 IL 124352
    , ¶ 22. During the
    12
    No. 1-15-0978
    inquiry, the defendant insisted that his counsel had been ineffective because he failed to
    impeach the complaining witness with her text messages indicating the incident was an
    accident and that he had been tricked into waiving his right to a jury trial because counsel
    told him he knew the judge personally and could get his charges reduced. Counsel rebutted
    the defendant’s allegations by explaining that once he got the complaining witness to testify
    on the record that she believed it was all an “accident” and that the defendant did not
    knowingly harm her, there was nothing to impeach her on. Counsel also denied that he ever
    made any representation that he knew the trial judge personally. Upon the conclusion of the
    preliminary Krankel inquiry, the trial court determined that the defendant’s allegations did
    not amount to ineffective assistance and, thus, a full-blown Krankel hearing with the
    appointment of additional counsel to argue ineffectiveness was not necessary. See Roddis,
    
    2020 IL 124352
    , ¶¶ 23-26.
    ¶ 26         The defendant appealed again, arguing, exactly as defendant does here, that the trial court
    erred by addressing the final, legal merits of his ineffectiveness claim instead of determining
    whether he had shown possible neglect and appointing new counsel to address the factual
    merits going forward. The reviewing court agreed, finding that it was improper for the trial
    court to reach the legal merits of an ineffectiveness claim in a Krankel hearing, as it was only
    supposed to determine whether it is appropriate to appoint new counsel to investigate the
    factual claims once possible neglect has first been demonstrated by the defendant. See
    Roddis, 
    2020 IL 124352
    , ¶ 28. Accordingly, the reviewing court reversed and remanded with
    directions to appoint new counsel. See Roddis, 
    2020 IL 124352
    , ¶ 29 (citing Roddis, 
    2018 IL App (4th) 170605
    ).
    13
    No. 1-15-0978
    ¶ 27          Upon the grant of the State’s petition for leave to appeal, the supreme court clarified that
    the question at issue was whether, upon a defendant’s pro se posttrial allegation of
    ineffective assistance of counsel triggering the trial court’s duty to conduct a Krankel inquiry,
    the court may properly consider both the factual and legal merits of the claim in its
    determination whether to appoint the defendant new counsel, as the State argued, or whether
    it was bound to consider only the factual merits to first find possible neglect, as the defendant
    maintained. See Roddis, 
    2020 IL 124352
    , ¶ 31. Again, this is exactly the argument with
    which we are presented. The supreme court in Roddis sided with the State and held that
    courts may properly consider both the factual and legal meris of a defendant’s ineffective
    assistance claim during a preliminary Krankel inquiry. In so doing, it noted that the oft-
    quoted language from Moore that a trial court need not appoint counsel if the defendant’s
    claim “lacks merit” has never been interpreted by the supreme court as distinguishing
    between factual and legal merit. See Roddis, 
    2020 IL 124352
    , ¶¶ 50, 54-55 (Moore holds
    only that the trial court is to first examine the factual basis of the claim, not that it is to only
    examine the facts; it simply provided a minimum threshold for the court’s Krankel
    consideration (the facts), not a limit to what it can consider (legal merits, as well)). The
    Roddis court reiterated that, at a Krankel hearing, a trial court may base its determination of
    the merits of a defendant’s ineffectiveness claims on its own knowledge of counsel’s trial
    performance and emphasized that the trial court, as most familiar with the proceedings at
    issue, remains best situated to serve the interests of judicial economy by extinguishing
    conclusory claims. See Roddis, 
    2020 IL 124352
    , ¶ 56. Accordingly, the supreme court
    concluded that, “even in preliminary Krankel inquiries, a trial court must be able to consider
    the merits in their entirety when determining whether to appoint new counsel on a pro se
    14
    No. 1-15-0978
    posttrial claim of ineffective assistance of counsel” (emphasis in original), and that this
    means the consideration of both the factual and legal merits presented. Roddis, 
    2020 IL 124352
    , ¶ 61. Clearly, Roddis has effectively changed the law to expand what a trial court
    may consider during a preliminary Krankel inquiry.
    ¶ 28                                    Defendant’s Reliance on Roddis
    ¶ 29         As a complete aside, but as a matter of record, we note that, while this case was on
    remand, and during the preliminary Krankel inquiry, defense counsel told the trial court that
    defendant, himself, had prepared his own pro se Krankel motion. This motion was in
    addition to the one defense counsel made sua sponte long before and which had triggered this
    original appeal (and our remand). Counsel asked the court to allow defendant to file it. The
    trial court opined that this would be inappropriate due to the unique procedural posture of
    this case. Eventually, the court allowed defendant to file his pro se Krankel motion, but did
    not consider it in any way.
    ¶ 30         Now, defendant, who, again, was the first to bring Roddis to our attention in his motion to
    cite additional authority, cited that decision to claim that, because the supreme court
    emphasized that a trial court should consider “the merits in their entirety” when determining
    whether to appoint Krankel counsel, the trial court here should have considered his newly
    written pro se Krankel motion, in addition to defense counsel’s sua sponte original motion.
    ¶ 31         Defendant, however, completely misreads Roddis in this regard. This was not the
    situation presented in Roddis and this is not what our supreme court meant by its holding.
    Roddis spoke directly to the consideration of both the factual merits and the legal merits of a
    Krankel claim and inherently changed the law to state that now, both of these—and not just
    factual merits surrounding the claim—may be considered. In other words, a trial court can
    15
    No. 1-15-0978
    properly review the facts and then proceed directly to the legal merits and consider both in its
    determination of whether the appointment of counsel is necessary. It did not, nor was it
    presented with, the situation defendant says it applies to here, where a defendant seeks
    consideration of his own Krankel motion after one has already been filed on his behalf. In
    that regard, and contrary to defendant’s insistence, we find that the trial court properly
    refused to consider his pro se Krankel motion, based on the particular facts at hand.
    ¶ 32         First, as we have said, defense counsel already raised the motion sua sponte, but
    nonetheless on defendant’s behalf, and cited the situation surrounding the procurement of
    Johnson’s testimony. We remanded his case for consideration on the content of that motion,
    only and specifically; our mandate was clear. And, that is the basis for the instant appeal. To
    hold otherwise now and permit the consideration of defendant’s new Krankel motion in
    addition to the one filed by defense counsel that started the whole trajectory of this cause
    effectively would allow defendant to throw open the doors to any Krankel issue and have
    even more bites at the apple after we specifically limited our prior holding to the situation
    with Johnson. Moreover, and apart from that, upon our review of the record, we note that
    defendant’s pro se Krankel motion, the very one he sought to introduce, actually deals only
    with trial counsel’s failure to secure Johnson’s testimony—which is exactly what we are
    addressing herein. Defendant writes nothing more in his pro se motion other than the same
    claim regarding the procurement of Johnson’s testimony that we, the State, and defense
    counsel, have been discussing all along. As such, not only does Roddis not help defendant in
    his effort to have this second Krankel motion considered, he does not present anything more
    in that motion than what is already at issue here. Accordingly, we need not review this point
    further, other than to say his pro se Krankel motion has no place in this cause.
    16
    No. 1-15-0978
    ¶ 33                                   The State’s Reliance on Roddis
    ¶ 34         Returning to the holding of Roddis, the State obviously jumped on the change it has made
    in our law, as well as on defendant’s supplemental citation to that case. In its response to
    defendant’s motion to cite it as additional authority in our Court regarding the instant appeal,
    the State insisted that Roddis’ holding affirms that the trial court properly considered both the
    factual and legal meris of defendant’s ineffectiveness claim regarding Johnson and, thus,
    negates any suggestion that the trial court exceeded its authority during the preliminary
    Krankel inquiry on remand by considering both the factual and legal merits to find that
    defendant’s claim ultimately failed under Strickland. Roddis ties our hands here and we have
    to agree with the State in this regard. Defendant’s argument that the trial court erred by
    prematurely considering the legal merits of his claim on ineffectiveness during the
    preliminary Krankel inquiry we ordered on remand—although it was made in good faith at
    the time of the filing of his supplemental brief here, predating Roddis—is no longer
    applicable in light of Roddis’ holding.
    ¶ 35         However, our discussion of this matter does not end there.
    ¶ 36                           Roddis Still Subjects the Trial Court to Review
    ¶ 37             Roddis clarified Krankel’s application to expressly broadened what the trial court
    may consider in determining whether new counsel should be appointed at a preliminary
    Krankel hearing. As noted, by “merits,” the supreme court meant that the trial court is to
    consider the merits of a defendant’s ineffectiveness claim “in their entirety,” and that this
    encompassed both the allegations’ factual and legal merits.
    ¶ 38         However, what Roddis did not do is that it did not remove the standards by which a trial
    court must abide when it considers both the factual and legal merits of an ineffectiveness
    17
    No. 1-15-0978
    claim at a preliminary Krankel hearing. That is, while it is true now that a trial court can
    consider both and cannot be said to have “jumped the gun” or have committed error by
    considering the legal merits in addition to the factual merits, it still must make that
    consideration properly and adequately so that the legal principles of Krankel are met. As we
    discussed earlier, Roddis does not remove the legal principle that, if the defendant shows
    possible neglect by defense counsel, he is to be appointed new counsel and a full Krankel
    hearing is to be held. See Ayers, 
    2017 IL 120071
    , ¶ 11; accord Jolly, 
    2014 IL 117142
    , ¶ 29;
    Moore, 
    207 Ill. 2d at 78
    . It does not remove the necessity for sufficient inquiry on the part of
    the trial court. See Ayers, 
    2017 IL 120071
    , ¶ 11; accord Jolly, 
    2014 IL 117142
    , ¶ 29; Moore,
    
    207 Ill. 2d at 78
    . It does not remove the necessity for the trial court’s employment of one of
    the three methods of interchange (with defendant, with defense counsel, or using its own
    recollection) to adequately assess the allegation of ineffectiveness in light of what occurred at
    trial. See Ayers, 
    2017 IL 120071
    , ¶ 12; Moore, 
    207 Ill. 2d at 78
    . And, it does not remove the
    legal principle that, whatever method the trial court employs, the inquiry into the allegations
    of ineffective assistance must be adequate so that the trial court gives full consideration to the
    defendant’s claim. See Ayers, 
    2017 IL 120071
    , ¶ 13; Moore, 
    207 Ill. 2d at 78
    ; see also
    Banks, 
    237 Ill. 2d at 213
    . In other words, Roddis did not change that the full consideration of
    the defendant’s claim is the ultimate essence of Krankel. See Ayers, 
    2017 IL 120071
    , ¶ 13;
    accord Jolly, 
    2014 IL 117142
    , ¶ 38; Ieliot Jackson, 
    2016 IL App (1st) 133741
    , ¶ 69.
    ¶ 39         All this is true because Roddis itself, and its progeny, so indicate.
    ¶ 40         First, we note that our supreme court, at the outset of its decision in Roddis, cited the
    same legal principles we have just cited here. See Roddis, 
    2020 IL 124352
    , ¶¶ 33-36.
    Accordingly, Roddis, even though it changed what the trial court may consider in a
    18
    No. 1-15-0978
    preliminary Krankel inquiry, reaffirmed Krankel’s basic legal concepts. See Roddis, 
    2020 IL 124352
    , ¶¶ 33-36. Our supreme court, then, in no way changed the underlying tenants of
    Krankel.
    ¶ 41         Second, and more important, after announcing the change, namely, that both factual and
    legal merits may now be taken into account by a trial court during a preliminary Krankel
    inquiry, the Roddis court did not end its decision. Rather, it went back and reviewed,
    pursuant to the same legal Krankel principles it cited and which we have once again
    reaffirmed here, whether the trial court in that case properly considered the merits, both
    factual and legal, when it denied the defendant’s pro se posttrial claim of ineffective
    assistance of counsel. See Roddis, 
    2020 IL 124352
    , ¶¶ 65-68. That review consisted of an
    examination of the record with regard to how the trial court conducted the Krankel inquiry
    into the allegations of ineffectiveness and whether the inquiry was adequate. See Roddis,
    
    2020 IL 124352
    , ¶ 66. The Roddis court looked directly at the transcript of that hearing and
    it reviewed the trial court’s conclusion that the defendant’s claims were either matters of trial
    strategy or, as some of them centered on witness credibility, were unfounded in light of the
    evidence presented. See Roddis, 
    2020 IL 124352
    , ¶¶ 66-68. Ultimately, the Roddis court
    stated that, pursuant to its “scrutiny of the record,” the trial court had properly determined
    that the defendant received effective assistance of counsel and was not prejudiced by his
    counsel’s performance. Roddis, 
    2020 IL 124352
    , ¶ 68. This is key here, because it was only
    after this review of the trial court’s holding in light of the record at hand that the Roddis court
    affirmed that the trial court rightfully operated within its discretion to decline to appoint
    Krankel counsel to address the defendant’s pro se posttrial claims of ineffectiveness. See
    Roddis, 
    2020 IL 124352
    , ¶ 68.
    19
    No. 1-15-0978
    ¶ 42         Also significant are the decisions that have come since. Although they are not many in
    number due to the recentness of Roddis, they are nonetheless clear in the fact that an
    evaluation of the trial court’s decision to deny Krankel counsel is still, regardless of Roddis’
    primary holding, required.
    ¶ 43         For example, in People v. Aaron Jackson, 
    2020 IL 124112
    , ¶ 98, our supreme court
    clarified its holding in Roddis regarding Krankel procedures by writing the following:
    “Whether the trial court properly conducted a Krankel preliminary inquiry presents a
    legal question that we review de novo. [Citations.] However, if the trial court has
    properly conducted a Krankel inquiry and has reached a determination on the merits of
    the defendant’s Krankel motion, we will reverse only if the trial court’s action was
    manifestly erroneous.”
    Thus, after reaffirming the trial court’s ability to now consider both the factual and legal
    merits of an ineffectiveness claim at a preliminary Krankel hearing, our supreme court also
    reaffirmed that a manifest-error standard still applies to a review of the propriety of the trial
    court’s decision to deny the appointment of Krankel counsel following that consideration.
    See Aaron Jackson, 
    2020 IL 124112
    , ¶ 98 (stating that the “operative concern for the
    reviewing court” is still “whether the trial court conducted an adequate inquiry into the
    defendant’s pro se allegations of ineffectiveness pursuant to a manifestly erroneous standard,
    which requires review of the trial court’s determination and if the allegations show possible
    neglect, requiring appointment of Krankel counsel). Particularly in Aaron Jackson, even
    though it affirmed the trial court’s decision not to grant Krankel counsel, the supreme court
    did so, as it had in Roddis, only after examining the record, the merits of the defendant’s
    contentions of ineffectiveness, what the trial court considered, and how the trial court
    20
    No. 1-15-0978
    conducted the preliminary Krankel inquiry. See Aaron Jackson, 
    2020 IL 124112
    , ¶¶ 108-22;
    see also People v. Quentin Bobo, 
    2020 IL App (1st) 182628
    , ¶¶ 37-40 (holding that trial
    court’s denial of appointment of Krankel counsel was appropriate but only after it examined
    the record and determined that “[t]he record shows that the trial court made a significant
    effort to explore [the] defendant’s claim regarding” ineffectiveness of his trial counsel “and
    gave [him] ample opportunity to present the factual basis of his claim”); People v. Neal, 
    2020 IL App (4th) 170869
    , ¶¶ 207-09 (holding that how the trial court conducted the preliminary
    Krankel inquiry in that case and its findings were appropriate but only after first examining
    the record of that hearing to dissect what the trial court relied on, said, and used as a basis for
    its decision to deny appointment of Krankel counsel).
    ¶ 44         Moreover, several other cases that have been forced to implement Roddis and disregard a
    defendant’s contention that the trial court improperly considered the legal merits of an
    ineffectiveness claim during a preliminary Krankel inquiry have actually gone on to find that,
    pursuant to a review of the record, the trial court’s denial of the appointment of Krankel
    counsel was, in fact, and nonetheless, manifestly erroneous. Chief among these is People v.
    Alexander, 
    2020 IL App (3d) 170829
    . There, the defendant filed a posttrial pro se Krankel
    motion asserting ineffective assistance of trial counsel due to counsel’s failure to investigate
    a recorded jail call in which another person confessed to the crime and for failing to object to
    the admission of a video recording of the victim at the hospital. See Alexander, 
    2020 IL App (3d) 170829
    , ¶ 22. The trial court denied it. Recognizing that Roddis provided new law, the
    Alexander court declared that it was appropriate for the trial court to consider both the legal
    merits and factual basis for the claims. See Alexander, 
    2020 IL App (3d) 170829
    , ¶ 24.
    21
    No. 1-15-0978
    However, it went on to stated that the trial court’s denial must still be reviewed for manifest
    error. See Alexander, 
    2020 IL App (3d) 170829
    , ¶ 25.
    ¶ 45         Upon that review, the Alexander court found that “manifest error occurred when the trial
    court determined that [the] defendant did not show possible neglect of the case,” because it
    was not clear on the face of his allegation or from counsel’s statements at the Krankel inquiry
    that his claims lacked merit or were part of trial strategy. The Alexander court noted how
    important a record of another individual confessing to the offense would have been to the
    defense’s theory of the case and how little probative value (and much prejudice) the hospital
    video had in this matter. See Alexander, 
    2020 IL App (3d) 170829
    , ¶¶ 26-32 (there was no
    possible logical trial strategy to justify defense counsel’s treatment of these matters).
    Accordingly, the Alexander court remanded the matter for the appointment of counsel and
    further posttrial proceedings pursuant to Krankel. See Alexander, 
    2020 IL App (3d) 170829
    ,
    ¶ 33 (finding manifest error in trial court’s denial of Krankel motion and remanding for the
    appointment of Krankel counsel to assist the defendant in advancing his pro se claims of
    ineffectiveness). See also People v. Abuharba, 
    2020 IL App (5th) 170073-U
    , ¶¶ 54, 55-58
    (the defendant’s argument that the trial court erred in considering legal merits during
    preliminary Krankel inquiry, though made in good faith at the time of filing, was no longer
    germane due to Roddis; however, because there was “insufficient information in the record to
    support that the trial court considered [the] defendant’s pro se posttrial claim regarding
    [ineffectiveness] in its entirety at the preliminary Krankel inquiry,” there was manifest error
    in light of the defendant’s showing of possible neglect, which required remand to the trial
    court for the appointment of Krankel counsel and a full Krankel evidentiary hearing); People
    v. Jenkins, 
    2020 IL App (4th) 170611-U
    , ¶¶ 36-39 (Roddis allows trial court to consider
    22
    No. 1-15-0978
    merits in their entirety at preliminary Krankel inquiry, but the trial court must do properly,
    which means it must remain impartial and fair, not act as an advocate, and conduct an
    examination that is not “argumentative or hostile;” remand for Krankel counsel and full
    Krankel hearing was required because there were clear factual disputes related to the
    defendant’s ineffectiveness claims that the trial court did not investigate and which it could
    have easily examined by turning to the record instead of holding an argumentative hearing). 3
    ¶ 46           Additionally, we are also mindful of, and cannot ignore, People v. Ieliot Jackson, 
    2016 IL App (1st) 133741
    , which defendant cites in his supplemental brief on appeal and which we
    mentioned at the outset of our decision herein. Although defendant cited this case to assert
    impropriety on the part of the trial court for considering the legal merits of his ineffectiveness
    claim at the preliminary Krankel inquiry, and although Ieliot Jackson predates Roddis, it has
    not been overruled and remains good law. And, even apart from the portion of Ieliot Jackson
    that is now contrary to Roddis, we still find that case to be instructive here.
    ¶ 47           Following trial in Ieliot Jackson, the defendant presented several claims of ineffective
    assistance of defense counsel, including, similar to the instant cause, counsel’s failure to
    introduce testimony from a particular witness that went directly to his theory on the case. At
    the preliminary Krankel inquiry, and as the defendant was explaining the importance of this
    witness, he pointed out that defense counsel’s insistence that the witness could not be located
    (as that was why he was not called) was untrue, since the witness was incarcerated.
    Immediately, the trial court interjected and insisted, without conferring with the record, that
    the evidence indicated the witness had been in custody with defendant and this was probably
    why he was not called (i.e., as a matter of trial strategy based on credibility). See Ieliot
    3
    We recognize that Abuharba and Jenkins are unpublished orders; however, we cite them as examples rather than as
    precedential authority. See, e.g., Pekin Insurance Co. v. Centex Homes, 
    2017 IL App (1st) 153601
    , ¶ 55.
    23
    No. 1-15-0978
    Jackson, 
    2016 IL App (1st) 133741
    , ¶ 71. The defendant replied that this was not so, that the
    witness had never been incarcerated with him, and that such a conclusion had never been
    stated throughout any of these proceedings; the court, however, dismissed the defendant’s
    assertion and insisted again that the witness had been so incarcerated with the defendant “at
    the time.” Ieliot Jackson, 
    2016 IL App (1st) 133741
    , ¶ 71. Ultimately, at the conclusion of
    the preliminary Krankel hearing, the trial court denied the defendant’s motion and refused to
    appoint counsel, finding, just as the trial court in the instant cause, that his claims did not rise
    to the level of ineffective assistance under Strickland because defense counsel’s performance
    in the case was proper and not ineffective. See Ieliot Jackson, 
    2016 IL App (1st) 133741
    , ¶
    73.
    ¶ 48            The defendant appealed, claiming, just as defendant in the instant cause, that the trial
    court did not first consider the claim for possible neglect and then decide whether to appoint
    independent counsel but, instead, proceeded directly to the legal merits and ruled that he
    failed to establish a Strickland claim. See Ieliot Jackson, 
    2016 IL App (1st) 133741
    , ¶ 75.
    Upon our review, we agreed with the defendant and remanded the matter for a new
    preliminary Krankel hearing. See Ieliot Jackson, 
    2016 IL App (1st) 133741
    , ¶ 77. Clearly,
    that holding is incorrect now in light of Roddis.
    ¶ 49            However, and the reason we believe Ieliot Jackson has not been explicitly overruled by
    Roddis, is that there was a secondary basis for our decision to remand for a new preliminary
    Krankel hearing, one that cannot be struck down. Apart from any Roddis concerns, our court
    went further to examine the record before it. Upon that examination, we found that the trial
    court did not properly conduct the preliminary Krankel inquiry because it improperly
    considered evidence beyond the record. The record in the case did not support the fact that
    24
    No. 1-15-0978
    the witness at issue, and who was purportedly willing to confess to the crime, had been
    incarcerated with defendant at any time, as the trial court insisted. In fact, this information
    was nowhere in the record. See Ieliot Jackson, 
    2016 IL App (1st) 133741
    , ¶ 71. Yet, the
    trial court mistakenly inferred this fact and then used it to determine that defendant’s claim of
    ineffectiveness for defense counsel’s failure to call the witness—which would have gone
    directly to his defense—was meritless because it was based on trial strategy (i.e., not calling
    him as a witness since he had been incarcerated with the defendant, which would affect his
    credibility). This was the reason that the trial court found the appointment of Krankel
    counsel unnecessary. However, this was a presumption on the part of the trial court, the truth
    of which was unknown to it. The court did not take the time to verify its veracity; had it
    looked at the record before relying on it to make its decision as to the sufficiency of the
    defendant’s claim of ineffectiveness, it would have realized it was not a matter ever
    supported by the record. Thus, we held that it was error for the trial court to have relied on
    extraneous, and mistaken, information during the preliminary Krankel inquiry and that a new
    inquiry was required for this reason, as well. See Ieliot Jackson, 
    2016 IL App (1st) 133741
    ,
    ¶ 78, citing Jolly, 
    2014 IL 117142
    , ¶ 36 (error to rely on matters outside the record in
    evaluating the defendant’s claims during preliminary Krankel inquiry). Again, Ieliot Jackson
    remains good law.
    ¶ 50         Accordingly, based on all these post-Roddis decisions, it is clear to us that in the instant
    cause, despite the fact that we cannot entertain defendant’s claim regarding the propriety of
    the trial court’s consideration at his preliminary Krankel hearing of the legal merits of his
    claim in addition to the factual merits, we are still permitted to—and must—conduct a review
    of the propriety of the trial court’s ultimate decision to deny him the appointment of Krankel
    25
    No. 1-15-0978
    counsel and of how it reached its determination that he had not shown possible neglect on the
    part of defense counsel for failing to secure Johnson’s testimony.
    ¶ 51                   Preliminary Krankel Inquiry Review pursuant to Manifest Error Standard
    ¶ 52          Returning, then, to the principles of Krankel, which we cited at the outset of our decision,
    we are mindful that we proceed via de novo review to determine if there was manifest error
    in the trial court’s conclusion here that defendant did not show possible neglect and in
    denying the appointment of Krankel counsel. Manifest error is error that is clearly evident,
    plain, and indisputable. See Aaron Jackson, 
    2020 IL 124112
    , ¶ 98. Based on the record
    before us, there was.
    ¶ 53          Again, defendant was simply required to bring forth his claim of ineffective assistance of
    defense counsel, not prove it at this point. This triggers the trial court’s duty to hold a
    preliminary Krankel hearing, which is to operate as a neutral and nonadversarial proceeding,
    with the trial court serving as a neutral trier of fact to initially evaluate the ineffectiveness
    claim. This evaluation requires some type of inquiry, which must be adequate to sufficiently
    determine possible neglect and which involves an interchange with the defendant, or an
    interchange with defense counsel, or the court’s reliance on its knowledge of counsel’s
    performance at trial and the sufficiency of the defendant’s allegation to assess what further
    action, if any, is warranted on a defendant’s claim. See Ayers, 
    2017 IL 120071
    , ¶ 20; Jolly,
    
    2014 IL 117142
    , ¶ 28; Moore, 
    207 Ill. 2d at 77-78
    . The defendant is to be afforded the
    opportunity to flesh out his claim so the court can determine if appointment of new counsel is
    necessary. It must be remembered that, at this stage of the proceedings, he is attempting to
    represent himself without counsel in order to obtain counsel; this proceeding must be fair.
    26
    No. 1-15-0978
    ¶ 54         The problem in the instant cause is no longer the Roddis issue. It is that the preliminary
    Krankel hearing conducted by the trial court here, along with its decision to deny the
    appointment of Krankel counsel, was manifestly erroneous in light of the record before us.
    ¶ 55         Yes, perfunctorily, the trial court had the required interchange pursuant to Krankel
    caselaw. The record shows it actually used not one, but two, methods: it had a discussion
    with defense counsel and it relied on its own knowledge of the trial evidence to determine the
    sufficiency of defendant’s claim. However, substantively, the content of these interchanges
    was not only suspect but void of any true, meaningful consideration on the part of the trial
    court with respect to defendant’s claim of ineffective assistance when it came to securing
    Johnson’s testimony. And, at some points, the content of the interchanges reveals that the
    facts the trial court chose to consider were in direct contradiction to the facts and evidence
    presented in the record during defendant’s trial. Accordingly, because the trial court’s
    inquiry into the allegations of ineffective assistance was not adequate so that it gave full
    consideration to defendant’s claim here, we cannot say that a proper preliminary hearing took
    place within the guidelines of Krankel and pursuant to our order on remand.
    ¶ 56         Our first concern is that the trial court completely dismissed defense counsel’s arguments
    without any serious consideration. These arguments neither lacked merit nor were simply
    matters of trial strategy; rather, they went directly to the evidence presented in this cause and
    defendant’s theory of the case. At the outset of the hearing upon remand, the trial court
    stated that, regardless of whatever counsel’s recollection was or what was in her notes, it
    recalled Johnson having testified at both codefendants’ trials that, although he could not
    provide a positive identification, the man he saw running across the parking lot at the same
    time he heard another man yell his girlfriend had been shot—i.e., the shooter—was wearing
    27
    No. 1-15-0978
    light colored, khaki shorts. The court told defense counsel that, if her sua sponte claim of
    ineffectiveness for failing to secure Johnson’s testimony had any merit, she would have to
    show that Johnson “all of a sudden said something that was even more important, at least as
    far as your position in the case was that it appears it could be.” Yet, this is exactly what
    counsel did. As she explained after she retrieved her notes, Johnson’s testimony that the
    shooter wore khaki shorts was critical to defendant’s cause because when he was pulled over
    by police with codefendant Bickham, Jr. only moments after the shooting, defendant was
    wearing black shorts. That defendant was wearing black shorts is confirmed in the record of
    defendant’s trial. The police officer who performed the custodial stop by curbing Bickham,
    Jr.’s car and removing both occupants from inside—again, only mere minutes after the
    shooting—testified directly as to what each was wearing. He specifically stated, on record,
    that defendant was wearing black shorts and Bickham, Jr. was wearing khaki shorts.
    ¶ 57         From this trial evidence, counsel pointed out to the court that Johnson’s testimony was
    crucial to the defense, as it would have clearly supported the defense’s primary theory on the
    case that Bickham, Jr., and not defendant, was the shooter. The trial court, however, did not
    accept this argument, stating that it did “not have an independent recollection as to what Mr.
    Bickham was wearing as he was driving the vehicle with he and [defendant] in it
    immediately after the shooting.” We find this to be incredibly dismissive and incredulously
    disingenuous on the part of the trial court. Apparently, the court found it to be permissible to
    reach back in its memory to testimony from codefendants’ trials (extraneous sources) to
    initially presume what Johnson’s testimony would have been in defendant’s trial had he
    testified (and had his testimony been properly secured by defense counsel for this to happen)
    that the shooter was wearing khaki-colored shorts, as it stated before counsel retrieved her
    28
    No. 1-15-0978
    notes. But later, after the continuance, the court found it seemingly was not worth its time or
    effort to look back into the very trial record of defendant’s case before it to verify the
    testimony presented by the police officer that defendant was wearing black shorts and
    Bickham, Jr. was wearing khaki shorts. Moreover, while the trial court unapologetically
    admitted that it had no “independent recollection” as to what codefendant or defendant were
    wearing, it then simply concluded this was all irrelevant anyway. Yet, in our view, the
    presentation of such evidence and the efforts defense counsel used (or failed to use) to secure
    this evidence cannot be said to be matters of trial strategy. Instead, this went directly to
    identification concerns and defendant’s theory on the case. Clearly, not only did the court
    dismiss counsel’s argument about the importance of Johnson’s testimony without any valid
    consideration rendering this method of Krankel inquiry baseless, but its reliance on its own
    knowledge of the evidence to determine that defendant’s allegations were insufficient in light
    of what occurred at trial was blatantly flawed, since the court itself actually admitted it had
    no recollection of the precise testimony involving the ineffectiveness claim raised.
    ¶ 58         What is more, the “personal knowledge” the court eventually did rely on was in direct
    contradiction to the record. In fact, the court misrepresented the record and then used that
    incorrect information as the basis for its conclusion that counsel’s argument about having
    Johnson testify as to the color of the shooter’s shorts ultimately did not matter. After
    admitting it did not recall what codefendant was wearing, the court concluded that Johnson’s
    testimony in this regard would not have mattered because, as it recalled, when codefendant
    Bickham, Jr. and defendant were stopped by police and removed from the vehicle, defendant
    “asked for his money for – immediately for doing the shooting,” that the weapon was
    recovered in the car, and that defendant later made statements of participation to police. It
    29
    No. 1-15-0978
    then admitted that it was “not even sure if that was the case, but,” regardless, with this
    additional evidence, Johnson’s testimony would not have affected the outcome of the trial.
    ¶ 59         While the trial court was correct that additional evidence showed the murder weapon was
    recovered from Bickham, Jr.’s car, the evidence did not show that defendant asked for money
    for the shooting. Rather, again, we find another instance where the trial court admitted it did
    not know what the evidence was. In direct contradiction to the trial court’s
    mischaracterization, the evidence was consistent in all three trials—codefendant Bickham,
    Jr,’s, codefendant Bickham, Sr.’s, and defendant’s—and given by the same police officer,
    that when Bickham, Jr. and defendant were pulled from the car by police, defendant looked
    at Bickham, Jr. and said he wanted his money now, and nothing more. Defendant never
    stated, and no one ever testified defendant stated, that the money was for the murder.
    Contrary to the trial court’s recollection of the testimony, then, it did not definitively
    establish that defendant asked for money owed to him for the shooting, or even related to it.
    The trial court inferred such a conclusion which was a mistake, stated it was part of the
    evidence presented which it was not, and then used that mistaken inference—even after
    admitting for a second time that it was “not sure” that such evidence was even true—to find
    that Johnson’s testimony regarding the color of the shooter’s shorts was irrelevant precisely
    in light of this fact’s existence, which was demonstrably untrue. Again, the trial court did not
    bother to verify the veracity of the evidence it used here. The errors on the part of the trial
    court during defendant’s preliminary Krankel hearing are clearly evident, plain, and
    indisputable.
    ¶ 60          Would these instances cited, as evidenced in the record and along with the inclusion of
    Johnson’s testimony (had it been properly secured by counsel), have made a difference in the
    30
    No. 1-15-0978
    outcome of defendant’s jury trial and supported a finding that counsel’s failure to secure
    Johnson’s testimony amounted to ineffective assistance of counsel so as to require reversal or
    remand of his conviction? That is not for us, at this time, to say. The essence of the error
    here is that the record shows defendant demonstrated possible neglect and, accordingly, the
    trial court had a duty to appoint Krankel counsel to help defendant flesh out his claim of
    ineffectiveness surrounding defense counsel’s failure to secure Johnson’s testimony at trial.
    The trial court’s behavior was neither impartial nor neutral, and this preliminary inquiry was
    hardly fair to defendant. Rather, and in light of the record, it was manifestly erroneous.
    ¶ 61          The State argues that this particular defendant did not need new counsel to be appointed
    to litigate his claim since “no awkward conflict exist[ed] because this ineffective assistance
    of counsel allegation came directly from trial counsel, not defendant which indicates that she
    was more than willing to argue her own incompetency.” This statement is incredulous in
    light of the procedural posture of this case. The essence of our prior holding in this cause
    made clear that it does not matter who raises a Krankel question of ineffectiveness, be it
    defendant or his counsel. This is what we devoted our entire analysis to: a Krankel claim is a
    Krankel claim regardless of who brings it to the trial court’s attention; once it is brought, by
    whatever means, it deserves to be heard according to Krankel principles, which mandate that
    a showing of possible neglect requires the appointment of new counsel. That the State now
    argues none of this should matter here because defense counsel rather than defendant raised
    the issue flies directly in the face of our prior holding. Again, the Krankel concerns remain
    the same. We cannot expect defense counsel to argue her own ineffectiveness, which
    otherwise places her own interests at odds with those of her client.
    31
    No. 1-15-0978
    ¶ 62         Instead, Krankel counsel would not have the fear of being found ineffective. This
    counsel would independently evaluate defendant’s claim and avoid the conflict of interest
    that defense counsel would otherwise have in trying to justify her own actions contrary to
    defendant’s position during a full Krankel hearing. This counsel would also, undoubtedly,
    and particularly in this case which references three criminal trials in relation to the testimony
    at issue in the ineffectiveness claim, pursue different avenues to advocate on defendant’s
    behalf. For example, this could include reinterviewing witness Johnson. Krankel counsel
    would almost certainly also review the evidence the court misconstrued here, including what
    exactly defendant said upon exiting the car, the testimony of the police officer who testified
    to his statement and to the color of his and Bickham, Jr.’s shorts, the testimony provided at
    codefendants’ trials in this regard, whether an agreement existed between defense counsel
    and the State about presenting Johnson’s testimony at defendant’s trial, what that agreement
    entailed and whether it was sufficiently preserved or memorialized by defense counsel, and
    any other deficiencies of defense counsel’s representation of defendant with respect to all
    this. Krankel counsel would then be able to present this information in a cogent, coherent
    and effective argument on defendant’s behalf to demonstrate to the trial court why defense
    counsel’s neglect in securing Johnson’s testimony amounted to ineffective assistance of
    counsel. Only with this representation of defendant by Krankel counsel, and with a review of
    the correct evidence presented at trial, would Krankel concerns be fully, and properly,
    addressed by the trial court here.
    ¶ 63         Defendant’s claim of ineffective assistance based on defense counsel’s failure to secure
    Johnson’s testimony, along with the trial court’s own admissions that it was unsure as to the
    evidence presented directly related to that claim, was, in our opinion, sufficient to place the
    32
    No. 1-15-0978
    court on notice that there was a need for the appointment of Krankel counsel to
    independently investigate the claim and represent defendant at a separate hearing. Rather
    than doing so, the trial court rested its decision on information it was admittedly unsure
    about, information that was not in the record, and information that was demonstrably wrong.
    ¶ 64           Granted, many ineffective assistance claims are, on their face, either so contrary to the
    record or so obviously illogical. However, some are genuinely more involved, have some
    level of support in the record, or are not directly contradicted by defense counsel. While trial
    courts undoubtedly must evaluate the factual and legal bases to determine the difference,
    Roddis has left an important question unresolved: how far should a trial court go in doing so,
    based on these two instances? In the former, we suppose any trial court should be able to
    easily decide whether Krankel counsel is necessary during a preliminary inquiry, just as in
    Roddis. But, in the latter, what is the trial court to do? We cannot expect a defendant to
    adequately present his claims without the assistance of counsel; yet, that seems to be what we
    are asking him to do, at least to some degree, in order just to obtain counsel to then make the
    argument for him. 4
    ¶ 65           Ultimately, here, we hold that, once the trial court realized it was unsure with respect to
    the factual disputes surrounding defendant’s allegation of ineffective assistance of defense
    counsel in securing the testimony of Johnson, which was relevant and went directly to his
    theory on the case, the decision should have been made to appoint Krankel counsel to
    defendant for the independent investigation and presentation of his claim during a full
    4
    This dilemma was directly, and aptly, posed by the Jenkins court and addressed to our supreme court, post-Roddis;
    albeit an unpublished decision, we adopt the same concern, and give credit where credit is due. See Jenkins, 
    2020 IL App (4th) 170611-U
    , ¶ 39.
    33
    No. 1-15-0978
    Krankel hearing. The court’s decision to instead deny defendant’s request was, in light of the
    record before us, manifest error.
    ¶ 66                                           CONCLUSION
    ¶ 67         Accordingly, for all the foregoing reasons, we reverse the judgment of the trial court with
    respect to its denial at the preliminary Krankel inquiry we ordered on initial remand of
    defendant’s claim of ineffective assistance of defense counsel. This matter is hereby
    remanded for the appointment of Krankel counsel to represent defendant on the merits of this
    posttrial claim regarding defense counsel’s failure to secure Johnson’s testimony and to take
    whatever action appointed counsel deems appropriate in light of that claim, and for a full
    Krankel hearing to be conducted by the trial court on that claim. At this time, we take no
    position on the merits of such claim but, instead, again retain jurisdiction over this cause.
    ¶ 68         Reversed and remanded with directions; jurisdiction retained.
    34
    

Document Info

Docket Number: 1-15-0978

Filed Date: 12/29/2020

Precedential Status: Non-Precedential

Modified Date: 7/30/2024