People v. Taylor ( 2020 )

2020 IL App (1st) 150978-USECOND 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
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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).
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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.
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¶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
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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
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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.
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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.
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¶ 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
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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
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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
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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
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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).
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¶ 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
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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
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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.
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¶ 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
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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
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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.
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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
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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.
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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
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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.
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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
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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.
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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.
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