People v. Branham , 2024 IL App (5th) 220068-U ( 2024 )

2024 IL App (5th) 220068-UNOTICE
NOTICE
Decision filed 02/29/24. The
This order was filed under
text of this decision may be NO. 5-22-0068
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Fayette County.
)
v. ) No. 20-CF-175
)
ROBERT A. BRANHAM, ) Honorable
) J. Marc Kelly,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court.
Justices Barberis and Boie concurred in the judgment.
ORDER
¶1 Held: Cause remanded with instructions for the trial court to conduct a hearing to address
the defendant’s ineffective assistance of counsel claims, as required by People v.
Krankel, 102 Ill. 2d 181 (1984), and to determine, based on the trial court’s
conclusion following the hearing, whether additional proceedings are required.
¶2 The defendant, Robert A. Branham, appeals his convictions and sentence, following a jury
trial in the circuit court of Fayette County, for five counts of criminal sexual assault. For the
reasons that follow, we remand this cause for the limited purpose of a proper Krankel inquiry in
the circuit court.
¶3 Prior to doing so, we examine the defendant’s other claims that his speedy trial rights were
violated by the circuit court’s orders related to the COVID-19 pandemic, that there was insufficient
evidence to sustain the convictions beyond a reasonable doubt, and that prejudicial plain error
1
occurred. We address these claims first because if the defendant prevails on any of these three
claims, there is no need to remand for a Krankel inquiry due to the principles of double jeopardy
which would bar the retrial of the defendant, or a new trial would be required. Ultimately, for the
reasons that follow, we reject defendant’s arguments as to these other claims. We do not reach the
remaining issue raised by the defendant, of ineffective assistance of counsel, but retain jurisdiction
to consider it, if necessary, following the Krankel inquiry. See, e.g., People v. Bell, 2018 IL App
(4th) 151016, ¶¶ 3, 36-37; see also People v. Roberson, 2021 IL App (3d) 190212, ¶ 22.
¶4 I. BACKGROUND
¶5 We recite only those facts necessary for an understanding of our disposition of this appeal.
On August 3, 2020, the defendant was arrested and charged, by information, with five counts of
criminal sexual assault, all Class 1 felonies. Count I alleged that between March 5, 2018, and July
7, 2020, the defendant committed an act of sexual penetration with a minor, A.H., in that by the
use of force he placed his penis in the mouth of A.H. Count II alleged that between March 5, 2018,
and July 7, 2020, the defendant, a family member of A.H., committed an act of sexual penetration
with a minor, A.H., by placing his penis into the vagina of A.H. Counts III, IV, and V alleged the
same conduct as in count II, but as additional and separate offenses. Each count alleged that A.H.
was under the age of 18 years when the alleged offenses occurred. Bail was set, and the defendant
remained in custody throughout the remainder of the criminal proceedings.
¶6 During pretrial, the defendant filed a motion to reduce bail and made a speedy trial demand
on August 7, 2020. On August 13, 2020, a grand jury returned a true bill of indictment charging
the defendant with the same offenses. On August 18, 2020, the defendant’s motion to reduce bail
was heard and denied. On August 25, 2020, the defendant was arraigned on the charges in the
indictment, and a trial was set on November 16, 2020. On October 27, 2020, the defendant filed a
2
motion to compel discovery and for sanctions alleging the State failed to provide recorded
statements made by defendant and the minors that were referenced in the police reports. A hearing
on the motions occurred on November 9, 2020, where defense counsel argued he could not proceed
to trial on November 16, 2020, because the State had failed to tender certain video statements and
that any delay should be attributed to the State for the purposes of calculating speedy trial. Further,
defense counsel argued the defendant should be released on his own recognizance, because the
next jury trial setting is not until January and would be outside of the 120-day time period for
speedy trial. The circuit court ordered the State to comply with discovery and set a status hearing
on November 12, 2020. On November 12, 2020, defense counsel indicated that he received
supplemental discovery, but stated he could not proceed to trial on November 16, based on the
materials received. Defense counsel reasserted that the delay should be attributed to the State. The
circuit court granted the defendant’s motion to vacate the jury trial set on November 16, but did
not make a determination regarding delay; instead, the circuit court set the matter for “a motion
for bond reduction or for an order in regards to the speedy trial issue” on December 1, 2020, and
rescheduled the jury trial on January 18, 2021.
¶7 On December 1, 2020, defense counsel argued that the State failed to comply with
discovery in a timely fashion, and that some evidence was not properly preserved; thus, delay
should be attributed to them. The State conceded that the delay was attributable to them from
August 3 to August 11, and from August 25 through November 16. Further, the State argued that
by their calculations there were 27 days left on the speedy trial time. The State noted that on
November 16, 2020,1 Chief Judge Koester of the Fourth District Circuit Court issued
administrative order 2020-40 that tolled speedy trial time until January 4, 2021. Thus, the State
1
Defense counsel noted that administrative order 2020-40 was entered on November 18, 2020. It
is not clear from the record which is the correct date.
3
argued that defendant’s speedy trial time would not lapse until January 31, 2021. The circuit court
denied the defendant’s motion to reduce bail and found that the “delay is attributable to the COVID
crisis pursuant to numerous Administrative Orders, which have been entered, including
incorporation of Illinois Supreme Court orders.”
¶8 At a status hearing on January 12, 2021, the circuit court indicated that pursuant to Illinois
Supreme Court’s directive, all January jury trial settings were vacated. Defense counsel objected
to the continuance of the trial. The defendant’s objection was noted and denied, and the trial court
reiterated it was acting under administrative orders pursuant to the Illinois Supreme Court
directives. The jury trial was rescheduled for February 16, 2021.
¶9 On February 2, 2021, pursuant to the administrative orders and directives from the Illinois
Supreme Court, the February trial setting was vacated and stricken. Defense counsel reasserted his
objection. The circuit court denied the defendant’s objection and set the matter for jury trial on
March 15, 2021. On March 10, 2021, defense counsel moved to continue the jury trial scheduled
on March 15, 2021, and indicated the parties were negotiating. The circuit court granted the
defendant’s motion for continuance and reset the jury trial for April 19, 2021.
¶ 10 On April 12, 2021, the circuit court heard the defendant’s motion to dismiss on speedy trial
grounds. The circuit court denied the defendant’s motion to dismiss based on the Illinois Supreme
Court’s order suspending all jury trials and speedy trial demands due to the COVID-19 pandemic
and the subsequent orders entered by the Chief Judge’s office. On April 19, 2021, the defendant
moved to continue the jury trial, and stated that he had recently received new discovery from the
State regarding a medical examination. The defendant’s motion to continue was granted, and the
case was set for a pretrial setting on May 11, 2021.
4
¶ 11 On May 11, 2021, the defendant requested another pretrial setting for time to obtain an
expert witness. The matter was reset for June 1, 2021. Defense counsel requested further
continuances until June 30, 2021. On June 30, 2021, the matter was set for jury trial on September
20, 2021. On September 17, 2021, the circuit court vacated and reset the jury trial setting to
October 18, 2021, due to the county’s high rates of COVID-19 and a quarantine of the state’s
attorney’s office pursuant to the Chief Judge’s order and the Illinois Supreme Court administrative
order. On October 5, 2021, defense counsel moved to continue the jury trial to November 15, 2021,
to allow time for defense counsel to file a motion in limine regarding new allegations against the
defendant. The circuit court granted the defense’s motion in limine to exclude this new allegation
and the jury trial began on November 15, 2021.
¶ 12 On November 15, 2021, a jury was selected, opening statements were given, and the State
began its case-in-chief. The State’s first witness to testify was Deputy Shawn O’Leary. He testified
that he was currently employed by the Fayette County Sheriff’s Department as deputy and had
been for five months. He had previously been employed as a police officer for Farina Police
Department for almost two years. O’Leary testified that on July 7, 2020, he was on duty in Farina,
and he received a call from Noelle Lamacchia with the Department of Children and Family
Services regarding a report of sexual assault. He testified that the victim in the case, A.H., stated
she had been molested by her stepdad, Robert Branham. O’Leary testified that he was present for
a Child Advocacy Center (CAC) interview conducted with A.H. in Effingham, Illinois, on July 14,
2020. He testified that A.H.’s siblings, K.H. and J.H., were also interviewed. He testified Robyn
Carr conducted the interviews, and that Noelle Lamacchia and Investigator Coody were also
present. He also testified that he wrote a report regarding the interviews. O’Leary testified his next
course of action was to interview Robert Branham.
5
¶ 13 On cross-examination, O’Leary testified that he interviewed the defendant, Robert
Branham, a “couple” of days after the interviews with the victim and her siblings. That interview
took place at the village hall in Farina, Illinois, and Investigator Coody and Noelle Lamacchia
were present. He testified he and Coody confronted the defendant with the allegations, and that
the defendant denied the allegations. O’Leary testified the interview was recorded using a
bodycam camera. He testified that he did not know whether the recording of the interview had
been lost or deleted due to it not being turned over to the state’s attorney’s office within 90 days.
¶ 14 On redirect examination, O’Leary testified that he confronted the defendant several times
with the allegations in the interview. He testified he did not expect the defendant to confess. He
testified that Farina Police Department has a 90-day policy for their bodycam videos. He testified
that the recording was gone, and because it was not accessed within that 90-day window, it was
automatically deleted.
¶ 15 On recross-examination, O’Leary testified that preserving evidence is part of the training
to become a police officer. He testified that the department got new body cameras around that
time, and he did not know “exactly” how the software worked to save the recording.
¶ 16 Robyn Carr was the next witness to testify. She testified that she was employed as the
executive director of the Children’s Advocacy Center of East Central Illinois. She testified she was
previously the senior forensic interviewer. Carr testified she completed her forensic interview
training in October of 2015 and had conducted over one thousand interviews. She testified her
CAC is nationally accredited by the National Children’s Alliance. Further, she testified that she
completed approximately 40 hours of classroom training, which included practical mock
interviews, and she is required to participate in continuing education related to child maltreatment,
forensic interviewing, and peer review. Carr testified regarding the typical procedure for CAC
6
interviews. That the interviews take place one-on-one with the child with a live audio and video
feed that allows other investigators and law enforcement to listen and observe. She testified that
she conducted an interview with A.H. on July 14, 2020, in Effingham, Illinois, in accordance with
the standard protocols and procedures.
¶ 17 On cross-examination, Carr testified that all human beings, including children, do not
always tell the truth. On redirect examination, Carr testified that the role of a forensic interviewer
is to collect information, not to determine whether a child is making truthful statements; however,
if a child is making conflicting statements, she would explore that with the child during the
interview.
¶ 18 On November 16, 2021, the State continued its case-in-chief, and J.H. was the next witness
to testify. He testified that he was 13 years old and attended South Central Middle School. He
testified he had lived in Farina, Illinois, for eight years, and his mother is Brandy Hatfill. In March
of 2018, he was 10 years old. He testified he lived with his mother, five siblings, and his stepfather,
Robert Branham. J.H. testified the defendant had been his stepfather for 11 or 12 years and that he
had an “okay” relationship with him. He testified that the defendant and A.H. had a close
relationship that seemed unusual to him, “too close.” He testified that A.H. was with the defendant
everywhere he went. He testified that he observed the defendant touching A.H.’s breasts while she
was playing video games in the bedroom that A.H. and her sister shared. J.H. drew a diagram of
his sisters’ bedroom, and that illustration was later admitted into evidence for demonstrative
purposes as People’s Exhibit 1. He further testified that only the defendant and A.H. were in the
bedroom during this incident and that neither of them saw him. He then walked outside where his
other siblings were present, and later returned to the bedroom where he observed the defendant
and A.H. naked. J.H. testified that A.H. was bent over the bed holding herself up with her hands
7
and the defendant was standing behind her with his pants down, completely naked. He then
clarified that the defendant and the victim were naked from the waist down. He testified that the
defendant and A.H. saw him, and they hurried and pulled their pants up. J.H. testified that he
walked outside and told his older sister and that information was later relayed to his mother. He
further testified that shortly after this occurred, the defendant told him he was allowed to ride his
bike, which he had been previously grounded from using.
¶ 19 On cross-examination, J.H. testified that the defendant has previously grounded him from
his bike, that the defendant has disciplined him in the past, and has employed methods such as
standing in a corner and spanking or smacking him. He testified that he does not like the defendant
but they had gotten along in the past. He testified that he has told the defendant on more than one
occasion that he will be glad when the defendant is gone. J.H. then recalled one occasion when the
defendant responded that he was not going anywhere, and J.H. responded, “You’ll see.” He
testified that his whole family was home during the incident when he observed the defendant
touching the victim’s breasts. That the incident occurred sometime in the summer of 2018. He
testified that Cassandra Roley, his mother’s girlfriend, was not at home during the incident. He
testified that approximately 10 minutes passed between when he observed the defendant touching
the victim’s breasts and the second incident on the bed. J.H. testified that he did not recall whether
he mentioned the first incident during the CAC interview. He testified he believed the defendant
favored A.H. and her sister over him. He testified that the defendant and his mother were never
married. The minor testified that A.H. would follow the defendant around on her own and not at
the defendant’s direction. He testified that A.H. used marijuana regularly during this time period.
He testified she told him she got it from a friend in Farina, Illinois.
8
¶ 20 On redirect examination, J.H. testified that the defendant gave him no explanation why he
was no longer grounded from his bike. He testified that on one occasion the defendant smacked
him 5 or 10 times when he argued with the defendant. He recalled one incident when the defendant
smacked him on the back which caused a scratch and bleeding. He testified he believed the
defendant allowed him to ride his bike due to him observing the second incident. He testified the
defendant was “always around the girls” and sometimes around the boys. He testified the girls
would hang around the defendant in his bedroom.
¶ 21 On recross-examination, J.H. testified that his mother was made aware of the incident
because he told K.H., who told Cassandra, who told his mother. He testified his mother was told
within an hour and a half of the incident. He testified that his mother did not confront the defendant
with her knowledge of the incident until two years later when she kicked him out of the house.
¶ 22 On further redirect examination, J.H. testified he was not one hundred percent sure of the
timeframe regarding when his mother confronted the defendant about the incident. On further
recross-examination, J.H. testified his mother did not kick the defendant out of the house the same
day of the incident. He testified it was “maybe a month” before his mother confronted the
defendant and kicked him out of the house.
¶ 23 A.H., the minor victim, was the next witness to testify. She testified she is currently 17
years old and living in Virginia. She testified, between March 5, 2018, and July 7, 2020, she lived
in Farina, Illinois. On or about July 7, 2020, she made a report of sexual assault to her psychiatrist,
Dr. Katie Hecksel. She testified that the police became involved, and she participated in a CAC
interview with Robyn Carr. A.H. testified the incidents started when she was 13 years old. The
first incident she remembered occurred when she was 13 years old while she was babysitting her
brothers. She testified she went to wake up the defendant for help babysitting, and he pulled her
9
by the left arm into his bed and started touching her breast and vagina over her clothes. She testified
the defendant began providing her with cigarettes, marijuana, and alcohol.
¶ 24 A.H. testified the next incident she remembered occurred at Sportsman Lake when she was
14 years old. She testified the defendant was taking her to her grandfather’s residence, and they
stopped at the camper at Sportsman Lake to get something for her grandfather. She testified she
went to use the bathroom in the camper, and when she attempted to go back to the vehicle, the
defendant prevented her from leaving. The defendant demanded that she undress, and she said no.
The defendant then undressed her himself and pushed her onto a bed and stuck his penis inside her
vagina. A.H. testified that when it was over, the defendant told her that if she ever told anyone, no
one would believe her and threatened to hurt her family.
¶ 25 A.H. testified the next incident occurred in a shed/port-a-potty at Sportsman Lake. She
testified that she was there fishing when she went to the shed to use the restroom by herself. While
using the restroom, the defendant walked in the shed. She testified she pulled up her pants and
attempted to leave, but the defendant told her she could not and stepped in front of the door
preventing her from leaving. A.H. testified the defendant grabbed his penis, pulled it out, and
forced her head to his crotch to perform oral sex. She testified that afterwards, the defendant
threatened to hurt her family if she told anyone. She testified that the defendant ejaculated during
the incident. A.H. testified that she removed a black hoodie she was wearing to wipe off her mouth
and threw it away.
¶ 26 A.H. testified the next incident occurred near a wood stove behind her house. She testified
she was 14 years old during the incident and it was wintertime. She recalled being outside at night
with the defendant and holding a flashlight for the defendant as he was putting wood in the stove.
She testified that after the defendant was done, he gave her a cigarette. The defendant then reached
10
into his pants and pulled out his penis. A.H. testified the defendant grabbed the back of her head
and forced her down to perform oral sex. She testified the defendant held the back of her neck and
head area. She testified she felt like she had no choice and could not resist.
¶ 27 A.H. testified the next incident occurred in her bedroom. She testified that she had a bruise
on her lower back that was caused by a fight between her and a sibling. The defendant walked into
A.H.’s room, and she asked him to see if she was bruised. She testified the defendant looked at her
back and stated he could not see anything and pulled her pants down further “way past the bruise.”
She testified that the defendant pushed her over the bed, pulled down his pants, and was going to
put his penis in her butt, but her little brother, J.H., walked in. She testified that the defendant did
not penetrate her this time, because he was caught in the act by her younger brother.
¶ 28 A.H. further testified that the defendant sexually assaulted her twice a week. She testified
that, at the time, her mother worked three jobs and was gone a lot. She testified the sexual assaults
occurred a lot more than just the five incidents alleged in the indictments. She testified she never
willingly took her clothes off or consented to having sex. A.H. further testified that between the
dates of March 5, 2018, and July 7, 2020, the sexual assaults occurred twice a week.
¶ 29 On cross-examination, A.H. testified that the inappropriate touching or “molesting” began
when she was 13 years old and lasted for a year. She testified that when she turned 14 years old, it
progressed to a year of sexual assault or “rape.” She testified she did not remember the last time
that the defendant touched her sexually, but that she felt comfortable telling her psychiatrist after
the defendant was no longer living in the home. A.H. testified she was seeing a psychiatrist because
of an attempted suicide. She testified she did not tell her mother of the incidents, because she was
concerned her mother would be disappointed.
11
¶ 30 On redirect examination, A.H. testified that when she told her psychiatrist about the sexual
assaults, the defendant was no longer living in the house. She testified she believed molesting to
mean “touching my boobs, my vagina, and my butt.” She testified she believed rape to mean “he
forced himself onto me. He forced sex on me.” She testified that the defendant forced her to have
sex twice a week. She testified she ran away on a couple of occasions, because she had fought with
her mother and to get away from the sexual assaults committed against her by the defendant. She
testified she moved to live with her father in Virginia to get away from the incidents.
¶ 31 Brandy Hatfill was the next witness to testify. She testified she was A.H.’s mother, she and
the defendant had been in a relationship for approximately 12 years, and he was stepfather to the
children. She testified she first learned about the incidents a week before Father’s Day of 2020.
She testified she kicked the defendant out of the home shortly after learning of the incident. She
testified that during the relevant time period she worked two or three jobs, but also had a procedure
on her back that required recovery for about six months in 2019.
¶ 32 On cross-examination, Brandy testified that Cassandra told her about the incidents. She
testified that Cassandra told her that J.H. saw something inappropriate. The State then rested its
case.
¶ 33 The defense’s first witness to testify was Faith Runkel. She testified that she met the
defendant in the summer of 2017, because her fiancé was friends with the defendant. She testified
to a conversation that occurred near Father’s Day of 2020 at Sportsman Lake between Brandy
Hatfill and Cassandra Roley. She testified that she heard Brandy and Cassandra discussing the
purchase of a home together, wherein Cassandra asked Brandy if she had spoken to the defendant
about it, to which Brandy replied that the defendant would probably follow and move in with them.
12
She testified that Brandy seemed excited about the idea of purchasing a new home but had her
doubts about the defendant being involved.
¶ 34 The defendant testified next for the defense. He testified to his relationships with Brandy,
Cassandra, and the children. The defendant testified that over time he felt that Brandy and
Cassandra were getting closer, and believed Brandy would eventually break off the relationship.
He testified that he had never touched A.H. in a sexual manner and denied the specific accusations
against him. He testified he did look at A.H.’s back in the middle of June of 2020 when she asked
him. He testified she was by the bed, her shirt was up a little, he saw a big red spot on her back,
her pants were up, and no underwear was showing. J.H. walked in during this and walked out. He
testified he was never alone with A.H. inside the shed at Sportsman Lake but did enter the shed to
clear out spiders and spiderwebs when she needed to use the restroom. He testified Brandy told
him not to come back to the house the Saturday before Father’s Day of 2020. He first learned of
the sexual assault allegations on July 21, 2020, in an order of protection proceeding that he was
not a part of. He spoke with law enforcement voluntarily on August 3, 2020, and denied the
allegations.
¶ 35 On cross-examination, the defendant testified that he went to the Father’s Day dinner with
the family. He testified he was never alone with any of the children. He testified that he had sexual
intercourse with Brandy and Cassandra. He stated that 2018 was the last time he had a sexual
relationship with both Brandy and Cassandra. The defendant testified that he believed Brandy’s
invitation to move to the new house with Cassandra was an ultimatum. He testified that the
incidents described by J.H. and A.H. did not happen. The defense then rested.
¶ 36 Following closing arguments, the jury retired to deliberate and returned a verdict finding
the defendant guilty on all five counts of criminal sexual assault.
13
¶ 37 On December 20, 2021, defense counsel filed a posttrial motion for judgment
notwithstanding the verdict or for a new trial. The defendant argued that the State failed to bring
him to trial within 120 days of his arrest; that the circuit court erred by denying his motion for
directed verdict on counts II, III, IV, and V; that the circuit court erred by giving the State’s
instruction defining “family member”; that the court erred by not allowing defense to question the
victim regarding the medical examination performed on her; and that the evidence and testimony
was insufficient to support a finding of guilt beyond a reasonable doubt.
¶ 38 On December 22, 2021, a presentence investigation report was filed by Tiffany Stone of
the Fayette County Probation Department. Contained within that report was a statement from the
defendant regarding the present offense, which states as follows: “Due to an improper, and
incomplete representation by counsel, and evidence not being allowed, I do not feel I got a fair
trial.” On December 27, 2021, defense counsel filed a motion for leave to withdraw based on the
statements made by the defendant in the presentence investigation report.
¶ 39 On January 3, 2022, the circuit court held a hearing first addressing the defense’s motions
and then held a sentencing hearing. Defense counsel requested the circuit court allow him to
withdraw based on the defendant’s statements in the presentence investigation report. The circuit
court informed the defendant he does not typically allow counsel to withdraw after a jury trial and
stated that he could represent himself or have counsel, but sentencing was going to proceed that
day. The defendant indicated that he wanted counsel’s representation at sentencing and the circuit
court denied the motion to withdraw. The circuit court never made a preliminary inquiry into the
defendant’s ineffective claim. After hearing arguments from both parties, the court then denied the
defendant’s motion for a new trial or judgment notwithstanding the verdict. A sentencing hearing
was held, and the defendant was sentenced to six years’ imprisonment on each of the five counts
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of criminal sexual assault, Class 1 felonies, with the sentences to run consecutively and a
mandatory supervised release range of three years to life. The defendant filed a timely notice of
appeal on January 28, 2022. Additional facts may be incorporated below in the analysis section
where necessary.
¶ 40 II. ANALYSIS
¶ 41 A. Speedy Trial
¶ 42 On appeal, the defendant first contends that his right to a speedy trial was violated when
the circuit court relied on administrative orders from the Illinois Supreme Court suspending jury
trials during the COVID-19 pandemic. The defendant argues that because he was not tried until
November 15, 2021, and he remained in custody awaiting trial for 225 days not attributable to him,
his right to be tried within 120 days of his arrest pursuant to section 103-5(a) of the Code of
Criminal Procedure of 1963, commonly known as the Speedy Trial Act (725 ILCS 5/103-5(a)
(West 2020)), was violated. The defendant asserts that the Illinois Supreme Court emergency
orders tolling the Speedy Trial Act during the COVID-19 pandemic violated the basic principles
of separation of powers, as well as federal sixth and fourteenth amendment principles, and were
therefore unconstitutional. As a result, the defendant argues the circuit court incorrectly denied his
motions to dismiss the charges on speedy trial grounds.
¶ 43 Whether a defendant’s statutory right to a speedy trial was violated is reviewed de novo.
People v. Pettis, 2017 IL App (4th) 151006, ¶ 17. In this case, the defendant was arrested on
August 3, 2020, remained in continuous custody, and was tried on November 15, 2021. The
defendant asserts that during his time in custody, there are 225 days of delay attributable against
the State. Of those 225 days, 134 of them were attributed by continuances granted pursuant to the
Illinois Supreme Court emergency administrative orders in response to the COVID-19 pandemic,
15
and thus 91 days were attributable to continuances by the State. Absent the continuances relating
to the COVID-19 pandemic, there was a total of 29 days left on the speedy trial term.
¶ 44 The defendant’s reply brief filed on March 29, 2023, acknowledges the Illinois Supreme
Court’s decision in People v. Mayfield, 2023 IL 128092 (filed Mar. 23, 2023), as controlling. The
Mayfield court held that its administrative orders tolling the speedy trial statute did not violate the
separation-of-powers clause. The supreme court began its analysis of the issue by first addressing
the Speedy Trial Act. The Speedy Trial Act provides in pertinent part:
“(a) Every person in custody in this State for an alleged offense shall be tried by
the court having jurisdiction within 120 days from the date he or she was taken into custody
unless delay is occasioned by the defendant ***. Delay shall be considered to be agreed to
by the defendant unless he or she objects to the delay by making a written demand for trial
or an oral demand for trial on the record.” 725 ILCS 5/103-5(a) (West 2020).
Mayfield, 2023 IL 128092, ¶ 19. However, section 16 of article VI of the Illinois Constitution
provides in pertinent part that “[g]eneral administrative and supervisory authority over all courts
is vested in the Supreme Court and shall be exercised by the Chief Justice in accordance with its
rules.” Ill. Const. 1970, art. VI, § 16. Section 7 of article VI further states, “[s]ubject to the
authority of the Supreme Court, the Chief Judge shall have general administrative authority over
his court, including authority to provide for divisions, general or specialized, and for appropriate
times and places of holding court.” Ill. Const. 1970, art. VI, § 7(c); Mayfield, 2023 IL 128092,
¶ 28.
¶ 45 The Mayfield court reasoned that because the Speedy Trial Act involves the scheduling of
trials, the statute is a matter of court procedure and within the supreme court’s constitutional
authority over all state courts. Where a statute and a supreme court rule governing court procedure
16
cannot be reconciled, the statute must give way to the rule, finding that the Illinois Supreme Court’s
administrative orders tolling the speedy trial statute did not violate the separation-of-powers
clause. Mayfield, 2023 IL 128092, ¶ 3. Furthermore, the supreme court found that the circuit court
in Mayfield was not bound by the speedy trial statute, because it had expressly permitted tolling
under its general administrative and supervisory authority over all courts and rejected the notion
that the administrative orders concerning court procedure exceeded the supreme court’s authority
explicitly conferred by the state constitution. Id. ¶ 36.
¶ 46 Here, the circuit court relied on the Illinois Supreme Court’s administrative orders, as well
as the Chief Judge’s administrative orders, tolling the 120 day time period set forth in the Speedy
Trial Act. The circuit court entered an order to that effect on either November 16 or November 18,
2020. A time at which the defendant’s in-custody time was within the 120-day time period. Thus,
the subsequent in-custody time attributable to the Illinois Supreme Court’s and circuit court’s
COVID-19 administrative orders tolling the defendant’s speedy trial term does not violate his
statutory right to a speedy trial, and pursuant to the Illinois Supreme Court’s ruling in Mayfield,
the defendant’s claim must fail.
¶ 47 B. Sufficiency of the Evidence
¶ 48 The defendant next argues that the evidence adduced at his jury trial was not sufficient to
sustain his convictions for criminal sexual assault. To sustain a conviction on count I, the State
must prove that the defendant committed an act of sexual penetration upon the victim by the use
of force. 720 ILCS 5/11-1.20(a)(1) (West 2020). To sustain convictions on the remaining four
counts, the State must prove that the defendant committed an act of sexual penetration, and is a
family member of the victim, and the victim is under 18 years of age. Id. § 11-1.20(a)(3).
17
¶ 49 When a defendant makes a claim that there was insufficient evidence to sustain his
conviction, this court reviews the evidence presented at trial in the light most favorable to the
prosecution to determine whether any rational trier of fact could have found beyond a reasonable
doubt the essential elements of the crime or crimes of which the defendant was convicted. People
v. Saxon, 374 Ill. App. 3d 409, 416 (2007). We will not reverse a criminal conviction unless the
evidence presented at trial is so improbable or unsatisfactory as to justify a reasonable doubt as to
the guilt of the defendant. Id. We allow all reasonable inferences from the record in favor of the
prosecution, whether the evidence in the case is direct or circumstantial. Id. There is no
requirement that this court disregard inferences that flow from the evidence, or that this court
search out all possible explanations consistent with innocence and raise them to a level of
reasonable doubt. Id. at 416-17. We do not retry the defendant, instead leaving it to the trier of fact
to judge the credibility of witnesses, resolve conflicts in the evidence, and draw reasonable
inferences based upon all of the evidence properly before the trier of fact. Id. at 416. As we
undertake our review of the evidence under the above standard, we are mindful of the fact that it
is axiomatic in Illinois that the testimony of a single witness, if positive and credible, is sufficient
to sustain a criminal conviction, even if the testimony is disputed by the defendant. See, e.g.,
People v. Loferski, 235 Ill. App. 3d 675, 682 (1992).
¶ 50 In this case, the defendant first contests whether the evidence, specifically the testimony of
the victim, was sufficient to sustain convictions on all counts. He contends, inter alia, the State’s
case relied entirely on the victim’s testimony as it was the only evidence that he committed the
five sexual assaults, and that his convictions should be reversed because the victim’s accusations
are insufficient given the nature of her testimony, the unlikelihood of her assertion that the
defendant assaulted her twice a week for two years, and the uncontradicted evidence showing that
18
she was a troubled adolescent. He argues that the nature of the victim’s testimony was highly
suspect, because (1) her testimony was inconsistent with regard to the timeframe of when the
sexual assaults occurred and varied from prior interviews; (2) her testimony that the defendant
sexually assaulted her twice a week for a year was improbable considering the family of seven
lived in a small house, there was no door on the victim’s bedroom, one of the incidents took place
while the family was at home, the mother was at home for several months with an injury, and the
defendant testified he was working 12 hours during the day; and (3) she was a “troubled
adolescent” with instances of prior drug and alcohol use, running away from home, and a previous
attempt to take her own life.
¶ 51 The defendant also argues that the State did not present any physical evidence, and the
testimony of the other family members was not corroborating evidence to support the victim’s
allegations, or the offenses as charged against the defendant. As such, the defendant argues that
under these circumstances, no rational trier of fact could conclude that the State proved the
defendant sexually assaulted the victim beyond a reasonable doubt. In the alternative, the
defendant argues that his convictions on counts 3 through 5 should be reversed as the State
presented insufficient evidence of the specific acts of penetration. He argues that he was charged
with and convicted on four separate acts of vaginal penetration, but the victim only testified
specifically to one vaginal penetration, while testifying generally to the defendant sexually
assaulting her twice a week for a year. The defendant argues that this generic assertion is
insufficient to establish three additional acts of vaginal penetration, and his convictions for those
counts should be reversed.
¶ 52 In its brief on appeal with regard to this issue, the State acknowledges that the evidence at
trial revolved around the testimony of the victim, but argues that the testimony of the victim’s
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brother, J.H., despite it relating to an incident not charged and being the only account of a sexual
assault witnessed by anyone in the family, corroborated the victim’s account of the occurrences
and provided an opportunity for the jury to hear evidence supporting the victim’s allegations.
Further, the State argues that the jury had the opportunity to see and hear all the evidence, including
the victim’s testimony recounting the events, and the jury is in the best position to determine the
credibility of the witnesses. The State emphasizes that the question before this court is whether the
evidence was so improbable or unsatisfactory that no rational trier of fact could have found the
essential elements of the offenses beyond a reasonable doubt. In addition, the State argues that,
contrary to the defendant’s assertion, the victim’s testimony at trial was consistent regarding the
timeframe of when the incidents took place in that she firmly maintained that she was molested
for a year after her thirteenth birthday and raped for a year after she turned 14. Further, the State
argues that this court should give no weight to the defendant’s claim that the victim’s testimony
was insufficient to establish the offenses as alleged in counts 3 through 5, because the victim
testified she was sexually assaulted by the defendant twice a week for a year, and that the sexual
assaults occurred a lot more than the five instances of sexual penetration at issue during trial. As a
result, the State argues that the evidence was sufficient to support each conviction against the
defendant beyond a reasonable doubt, and the defendant failed to establish that the fact finder acted
irrationally when reaching their verdict.
¶ 53 In his reply brief, the defendant emphasizes that although reviewing courts generally give
deference to the fact finder on matters of credibility, this court must still carefully consider the
evidence and determine whether it is sufficient to sustain the convictions. Further, the defendant
argues that the State is mistaken that J.H.’s testimony corroborates the victim’s testimony, because
J.H. testified about incidents he observed between the defendant and victim not charged in the
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indictments. Lastly, he argues that the State failed to present specific evidence of vaginal
penetration in regard to counts 3 through 5, and therefore, the evidence presented was insufficient
to sustain his convictions on those counts.
¶ 54 As explained above, when reviewing a sufficiency of the evidence claim, this court allows
all reasonable inferences from the record in favor of the prosecution, whether the evidence in the
case is direct or circumstantial, and will not disregard such reasonable inferences that flow from
the evidence. See, e.g., Saxon, 374 Ill. App. 3d at 416-17. Moreover, we (1) do not retry the
defendant, instead leaving it to the trier of fact to judge the credibility of witnesses, resolve
conflicts in the evidence, and draw reasonable inferences based upon all of the evidence properly
before the trier of fact, and (2) will not search out all possible explanations consistent with
innocence and raise them to a level of reasonable doubt. Id. As such, we will not substitute our
judgment for that of the trier of fact on questions involving the weight of the evidence or on the
credibility of witnesses unless the evidence is “so palpably contrary to the verdict or so
unreasonable, improbable or unsatisfactory as to create a reasonable doubt of [the defendant’s]
guilt.” People v. Abdullah, 220 Ill. App. 3d 687, 693 (1991).
¶ 55 As alleged in count I, criminal sexual assault is committed when the accused commits an
act of sexual penetration by the use of force. As alleged in the remaining counts, criminal sexual
assault is committed when the accused is a family member of the victim and commits an act of
sexual penetration against a victim under 18 years of age. 720 ILCS 5/11-1.20 (West 2020).
Criminal sexual assault requires an act of sexual penetration; however, it is not necessary that
corroborating medical evidence be admitted to prove that penetration did occur, and where
evidence of penetration is presented at trial, question of whether it occurred is one of fact for jury
to determine. People v. Morgan, 149 Ill. App. 3d 733, 738 (1986). Sexual penetration is defined
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as, “any intrusion, however slight, of any part of the body of one person *** into the sex organ or
anus of another person, including but not limited to cunnilingus, fellatio or anal penetration.” 740
ILCS 22/103 (West 2020). The type of sexual penetration that constitutes the sexual assault is not
an essential element of the offense, and the State is not required to prove the specific type of sexual
penetration, but only that a type of sexual penetration occurred. People v. Tanner, 142 Ill. App. 3d
165, 168-69 (1986).
¶ 56 The evidence that was presented to the jury is described in detail above, and when viewed
in the light most favorable to the prosecution, that evidence was sufficient, beyond a reasonable
doubt, to sustain the convictions on appeal. Although the victim was uncertain of the specific dates
of when the sexual assaults occurred, she firmly maintained that she was molested for a year after
her thirteenth birthday and raped for a year after she turned 14. During her testimony at trial, she
gave detailed accounts of the specific facts and circumstances surrounding the sexual assaults.
Further, she testified that the defendant raped or forced her to have sex twice a week for a year.
This testimony is sufficient to establish that the defendant committed several acts upon the victim
which fall within the statutory definition of sexual penetration. Specifically, we conclude that the
evidence in its totality, including the victim’s testimony, despite her living arrangements and her
struggle with drug use and mental health issues, was not so improbable or unsatisfactory as to
create a reasonable doubt of defendant’s guilt. In addition, we find that the victim’s testimony that
the defendant raped or forced her to have sex twice a week for a year was sufficient to prove sexual
penetration as alleged in counts 3 through 5, and the State was not required to prove the specific
type of sexual penetration. It was within the province of the jury to determine the weight to be
given that testimony and to find it credible. Thus, there was sufficient evidence in the record to
22
support the jury’s finding that the defendant committed each sexual assault beyond a reasonable
doubt, and the principles of double jeopardy do not apply.
¶ 57 C. Plain Error
¶ 58 We next turn to defendant’s contention on appeal that prejudicial plain error occurred by
the prosecution in its cross-examination of the defendant and in closing arguments, which the
defendant contends requires this court to reverse his conviction and remand for a new trial. The
defendant concedes that the purported errors during the State’s cross-examination of the defendant
and closing arguments were not objected to in the trial court, and accordingly are forfeited.
However, the defendant asks this court to consider the purported errors under the first prong of the
plain-error rule.
¶ 59 The defendant contends that the State erred during cross-examination of him because,
according to the defendant, the State improperly questioned the defendant about the credibility or
veracity of J.H.’s and A.H.’s testimonies, in that the prosecutor asked the defendant if J.H. and
A.H. were “lying.” Further, he claims that the State erred during closing arguments when it
commented on the line of questioning regarding whether the children were lying. Specifically, the
defendant points to the State’s arguments that because the defendant’s and the children’s
testimonies contradicted each other, someone must be lying; and therefore, suggested the
defendant is the one who should not be believed. The defendant argues these alleged errors
intruded on the jury’s function of determining the credibility of the witnesses and were an attempt
by the State to shift the burden of proof to him.
¶ 60 In response, the State argues that no reversible error occurred. Additionally, there can be
no plain error because, although it is generally improper to ask a witness on cross-examination
whether an adverse witness’s testimony is truthful, here, the defendant invited that line of
23
questioning through the defense’s theory of conspiracy and the defendant’s own direct testimony.
Further, the State argues it should be afforded an opportunity to question the defendant in order to
explore his denial and any explanation that he may have in furtherance of his theory. The State
also claims that the evidence against the defendant was not closely balanced. Accordingly, even if
there was error, it is not reviewable under the plain-error rule because the error alone did not
threaten to tip the scales of justice against the defendant.
¶ 61 In his reply brief, the defendant asserts that the State misrepresents the defense theory. The
defendant contends that “the defense case was that A.H. did not want Robert at the house any more
[sic] because she wanted to gain Brandy’s approval.” Therefore, the defense was not about
conspiracy, but merely a credibility determination between the defendant and A.H., thus the
questioning was improper. In addition, he argues that the case was closely balanced and hinged on
a credibility determination between the defendant and A.H.
¶ 62 It should initially be noted defendant failed to object to these questions and remarks at trial
and did not raise this issue in a posttrial motion. In order to preserve an alleged error for appeal, a
defendant must both object to the error at trial and in a posttrial motion. People v. Enoch, 122 Ill.
2d 176, 186 (1988). Defendant has done neither and has thus waived any consideration of this
issue.
¶ 63 Despite this, defendant argues the questioning and remarks constitute plain error, an
exception to the general rule of waiver. The defendant cites Illinois Supreme Court Rule 615(a),
which states: “Plain errors or defects affecting substantial rights may be noticed although they
were not brought to the attention of the trial court.” Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). The
plain-error rule is applied in instances of error “when (1) a clear or obvious error occurred and the
evidence is so closely balanced that the error alone threatened to tip the scales of justice against
24
the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred
and that error is so serious that it affected the fairness of the defendant’s trial and challenged the
integrity of the judicial process, regardless of the closeness of the evidence.” People v. Piatkowski,
225 Ill. 2d 551, 565 (2007).
¶ 64 We begin our analysis of this issue with the well-established—and dispositive—
proposition of law that “ ‘[a]bsent reversible error, there can be no plain error.’ ” People v. Burton,
2012 IL App (2d) 110769, ¶ 15 (quoting People v. Naylor, 229 Ill. 2d 584, 602 (2008)).
Accordingly, when asked to conduct plain-error review following a criminal conviction, this court
will not reach the question of whether the evidence in the case is closely balanced—and thus
whether a forfeited claim is reviewable under the first prong of the plain-error rule—unless we
have determined first that an error has occurred that would require reversal of a defendant’s
conviction. Id. ¶¶ 14-15. If the acknowledged errors do not amount to reversible errors, the plain-
error rule does not apply, regardless of whether the evidence is closely balanced. Id. ¶ 18.
¶ 65 In this case, the prosecutor’s questions and remarks were not reversible error. It is generally
improper to ask one witness to comment directly on the credibility of another witness. People v.
Becker, 239 Ill. 2d 215, 236 (2010). However, when this line of questioning is invited by the
defendant’s theory of the case, cross-examination eliciting the defendant’s comments on the
veracity of adverse witnesses is not necessarily improper. People v. Kokoraleis, 132 Ill. 2d 235,
264 (1989). Here, despite the defendant’s assertion that his defense theory was not that the
witnesses were conspiring against him to remove him from the home, it is clearly evident that
defendant’s position was that the children were fabricating the allegations against him for that
purpose. During his direct testimony, the defendant introduced evidence that his relationship with
Brandy was deteriorating, that A.H. was often concerned about disappointing Brandy, that A.H.
25
felt she could not do anything good in her mother’s eyes, and that he felt he was given an ultimatum
by Brandy about moving to the new house. Moreover, he directly contradicted A.H.’s testimony
by denying the allegations she made against him. All of this is evidence introduced by the
defendant that Brandy did not want the defendant in the home, and this was A.H.’s opportunity to
gain her mother’s approval by fabricating the allegations. Further, during cross-examination, the
defendant was the one who first testified that the children were making false allegations against
him before the prosecutor ever questioned him on the veracity of their testimony. The following
is the relevant line of questioning that occurred during the defendant’s cross-examination:
“Q. So you don’t think [J.H.] wanted you to leave?
A. Well, I didn’t until now.
Q. Until now what?
A. Until this happened and these allegations were made. False allegations were
made.
Q. [J.H.] is not the one accusing you though, right?
A. He is saying things that didn’t happen. So, in a way, he’s part of the allegations.
***
Q. But you just said that [J.H.] was making untrue accusations. But that did happen?
A. The part I looked at her back happened, the part that we had no clothes on didn’t.
Q. He’s just lying about that?
A. I suppose so, yes.
Q. He’s lying?
A. Yes.
***
26
Q. Your testimony is that you didn’t ever go into the shed at the same time as [A.H.]
and she is lying?
A. That’s my testimony.
Q. And she is lying?
A. Yes.
Q. So everybody else is lying but you?
A. I don’t know.”
¶ 66 We acknowledge that it is improper for a prosecutor to ask a defendant’s opinion of the
veracity of other witnesses because it invades the province of the jury to determine the credibility
of the witnesses. However, in this case, the defendant’s theory of defense combined with his
testimony invited and provoked this line of questioning, especially when considering he testified
first to the veracity of the other witnesses by stating they made false allegations. As a result, the
prosecution was allowed to inquire further into the defendant’s theory or version of the events
following this testimony.
¶ 67 Further, the prosecutor’s remarks during closing arguments were not reversible error. It is
generally improper for a prosecutor to tell jurors that in order to acquit the defendant they must
find all of the State’s witnesses are lying. People v. Jones, 108 Ill. App. 3d 880, 888-89 (1982).
Despite this general rule, the prosecutor may discuss the credibility of the defendant and the
witnesses when it is based on the evidence or reasonable inferences therefrom. People v. Childs,
101 Ill. App. 3d 374, 377 (1981). Such comment is proper argument, i.e., inferences based on the
evidence, in cases where the defendant’s testimony contradicts the testimony of significant State’s
witnesses. People v. Pegram, 152 Ill. App. 3d 656 (1987) (prosecutor’s statement that either the
defendant or the victim lied held not to be plain error).
27
¶ 68 In People v. Roman, the defendant’s testimony contradicted the testimony of the victim,
and in closing argument the prosecutor stated that in order to believe the defendant the jury would
have to find the State’s witnesses were lying. People v. Roman, 98 Ill. App. 3d 703, 706-07 (1981).
The defendant’s identification was not at issue in Roman. Id. Instead, the victim and defendant
simply gave contradictory versions of the events in question, and it was not a situation where the
witnesses could easily be mistaken. Id. The Roman court refused to find plain error as the
comments were not lengthy and the prosecutor did not put his credibility behind the State’s
witnesses. Id. at 708. In this case, the following remarks were made during the State’s closing and
rebuttal argument:
“Is this a conspiracy? Everybody is lying but the defendant? No. Everybody’s going to
concoct a story that starts with a confession to your psychiatrist and involves all these
people just to get somebody out of the house?
***
For everything to not be true, everybody else has to be lying. That was one of the last points
I made with the defendant. Everybody else has to be lying but him. He’s the only one telling
the truth. I submit that that [sic] is impossible.
***
He would have you believe that Brandy had already decided to get rid of him, both the kids
that are clearly lying decided to get rid of him, and this is a huge conspiracy because nobody
is possibly telling the truth.”
¶ 69 Here, as stated above, the defendant invited the line of questioning during his direct and
cross examination and the resulting remarks during closing arguments. Further, contrary to the
defendant’s assertions, at no point did the prosecutor state that in order to acquit the defendant, the
28
jury must conclude the State’s witnesses were lying. Instead, the main theme of the prosecutor’s
remarks was that either the defendant or the State’s witnesses were lying. Thus, the prosecutor did
not misstate the law or attempt to shift the burden to the defendant based on his remarks. In
addition, there was a direct conflict of a significant nature between the children’s testimony and
that of the defendant, in a case largely resting on credibility. The two versions of what occurred
simply cannot be reconciled. Furthermore, these are not matters about which a witness may easily
be mistaken. When reviewing the evidence, it seems a reasonable inference, if not the only logical
one, that either the children or the defendant was lying. Thus, the remarks were not improper under
the circumstances, in that the defendant invited the initial line of questioning and the resulting
remarks, and the prosecutor has a legitimate right to comment upon the credibility of the witnesses
when based on evidence or reasonable inferences therefrom. Accordingly, there was no reversible
error, and the plain-error rule is not applicable under the circumstances.
¶ 70 D. Krankel
¶ 71 We now turn to defendant’s claim that this case must be remanded for a Krankel inquiry,
based on the defendant’s written statement contained in the presentence investigation report
claiming ineffective assistance of counsel. “The issue of whether the [trial] court properly
conducted a preliminary Krankel inquiry presents a legal question”; therefore, we will use a
de novo standard of review. People v. Jolly, 2014 IL 117142, ¶ 28.
¶ 72 In 1984, the Illinois Supreme Court in Krankel announced the manner in which the court
should handle ineffective assistance of counsel posttrial claims. People v. Krankel, 102 Ill. 2d 181(1984). Since that time, and in accordance therewith, a common law procedure has developed that
“is triggered when a defendant raises a *** posttrial claim of ineffective assistance of trial
counsel.” Jolly, 2014 IL 117142, ¶ 29. It is well-settled law that in such situations, the trial court
29
is not automatically required to appoint new counsel for a defendant. Id. “If the trial court
determines that the claim lacks merit or pertains only to matters of trial strategy, then the court
need not appoint new counsel and may deny the *** motion.” People v. Moore, 207 Ill. 2d 68, 78
(2003). If, on the other hand, “the allegations show possible neglect of the case, new counsel should
be appointed” to represent the defendant at a hearing on the defendant’s claims. Id. This ensures
that newly appointed counsel can independently evaluate the defendant’s allegations, and it also
avoids “the conflict of interest that trial counsel would experience if trial counsel had to justify his
or her actions contrary to [the] defendant’s position.” Id.¶ 73 To determine whether the appointment of new counsel is required, the trial court must take
action. The first step is to “examine the factual basis of the defendant’s claim.” Id. at 77-78. To do
this, “some interchange between the trial court and trial counsel regarding the facts and
circumstances surrounding the allegedly ineffective representation is permissible and usually
necessary in assessing what further action, if any, is warranted on a defendant’s claim.” Id. at 78.
The trial court may ask the trial counsel to “simply answer questions and explain the facts and
circumstances surrounding the defendant’s allegations.” Id. Further, “[a] brief discussion between
the trial court and the defendant may be sufficient” to assist the trial court in understanding the
defendant’s allegations. Id. Lastly, the trial court may base its evaluation of the defendant’s
allegations on its own “knowledge of defense counsel’s performance at trial and the insufficiency
of the defendant’s allegations on their face.” Id. at 79.
¶ 74 The goal of a preliminary Krankel inquiry “is to facilitate the trial court’s full consideration
of” the defendant’s claims. Jolly, 2014 IL 117142, ¶ 29. Moreover, by conducting the initial
evaluation of the defendant’s claims by such an inquiry, the trial court “will create the necessary
record for any claims raised on appeal.” Id. ¶ 38. To ensure this goal of the preliminary Krankel
30
inquiry is met, “[t]he law requires the trial court to conduct some type of inquiry into the underlying
factual basis” of the ineffective assistance of counsel claims, and if no such inquiry is conducted,
the cause must be remanded to the trial court for that purpose. Moore, 207 Ill. 2d at 79, 80. As the
Illinois Supreme Court has recognized, even where a defendant’s claims may ultimately be without
merit, the trial court must afford “ ‘the defendant the opportunity to specify and support his
complaints,’ ” and the trial court may not “ ‘precipitously and prematurely’ ” deny the defendant’s
motion. Id. at 80 (quoting People v. Robinson, 157 Ill. 2d 68, 86 (1993)).
¶ 75 However, as in any case that is remanded for a proper preliminary Krankel inquiry, if, after
a proper inquiry and any results that may flow from it, the trial court ultimately determines that
the defendant’s claims are without merit, “the court may then deny the motion and leave standing
[the] defendant’s convictions and sentences.” Id. at 81. If that happens, the defendant remains able
to “appeal his assertion of ineffective assistance of counsel along with his other assignments of
error.” Id. at 81-82.
¶ 76 The Illinois Supreme Court has made clear that a pro se defendant is not required to do
anything more than bring his claim to the court’s attention and may do so orally or in writing. In re
Johnathan T., 2022 IL 127222, ¶¶ 24, 47. “[A] bare allegation of ‘ineffective assistance of
counsel,’ without more, is sufficient to warrant a preliminary Krankel inquiry.” People v.
Downing, 2019 IL App (1st) 170329, ¶ 55 (citing People v. Ayers, 2017 IL 120071, ¶ 24); see also,
e.g., People v. Patrick, 2011 IL 111666, ¶ 39; People v. Munson, 171 Ill. 2d 158, 200 (1996) (all
supporting the general proposition that a defendant is not required to file any sort of specific
motion, and simply a letter or note to the court will suffice, and that even if the defendant does not
specifically include the words “ineffective assistance of counsel” in the defendant’s filing or oral
statement, the allegations can be sufficient to require a Krankel inquiry).
31
¶ 77 In this case, the State concedes that this matter must be remanded for the limited purpose
of a proper Krankel inquiry when the defendant’s ineffective claims were brought to the attention
of the trial court by defense counsel, and the court failed to conduct an inquiry into the defendant’s
allegations. We agree and remand this case with directions for the trial court to conduct a Krankel
hearing.
¶ 78 III. CONCLUSION
¶ 79 For the foregoing reasons, we remand with directions for the trial court to conduct a hearing
to address the defendant’s ineffective assistance of counsel claims, as required by People v.
Krankel, 102 Ill. 2d 181 (1984), and to determine, based on the trial court’s conclusion following
the hearing, whether additional proceedings are required.
¶ 80 Cause remanded with directions.
32