People v. Southern

2023 IL App (1st) 211645-UNo. 1-21-1645
Order filed September 22, 2023
FIFTH DIVISION
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. CR 12764 02
)
CHARLES SOUTHERN, ) Honorable
) Alfredo Maldonado,
Defendant-Appellant. ) Judge presiding.
PRESIDING JUSTICE MITCHELL delivered the judgment of the court.
Justice Mikva and Justice Lyle concurred in the judgment.
ORDER
¶1 Held: Defendant’s conviction and sentence is affirmed where the trial court properly
conducted a Krankel inquiry that did not deprive defendant of his right to counsel or due
process.
¶2 Defendant Charles Southern appeals his conviction for first degree murder and criminal
trespass. The issue is whether the trial court erred when, in making a Krankel inquiry, it agreed to
appoint post-trial counsel but limited the issues and witnesses for the evidentiary hearing without
new post-trial counsel present. For the following reasons, we affirm.
No. 1-21-1645
¶3 BACKGROUND
¶4 In May 2013, Charles Southern attended a birthday party where he shot and killed another
party attendee, Dionte Maxwell. Following a bench trial, the trial court found Southern guilty of
four counts of first-degree murder and criminal trespass to a residence.
¶5 Before sentencing, Southern wrote a letter to the trial court alleging his trial counsel was
ineffective because he supposedly misinformed Southern about his defense of self-defense, failed
to file motions requested by Southern, did not call certain witnesses, and did not argue that
Southern’s Fourth Amendment rights were violated. This prompted the trial court to hold a Krankel
inquiry. See People v. Krankel, 102 Ill. 2d 181 (1984). Under Krankel, when a defendant raises a
post-trial claim of ineffective assistance of counsel, the court must first conduct an inquiry to
determine if there is a basis for the claim and, if there is, appoint new counsel to address the claim
at an evidentiary hearing. Id. at 185. Subsequently, the trial court found that Southern’s allegations
against his trial counsel showed possible neglect and appointed new counsel to represent Southern
on these post-trial claims. Post-trial counsel investigated Southern’s claims and ultimately filed a
post-trial motion which did not raise any of Southern’s ineffective assistance claims. The trial court
denied Southern’s amended motion for a new trial and reset the matter for sentencing.
¶6 At sentencing, post-trial counsel informed the trial court that Southern wanted to proceed
pro se for the remainder of his case. The trial court admonished Southern of the implications of
proceeding pro se, his charges, minimum and maximum sentences, and his right to counsel, and
Southern confirmed that he wished to proceed without counsel. Southern then presented a motion
to reconsider the denial of the post-trial motion, renewing his claims of ineffective assistance by
trial counsel, newly alleging that trial counsel forced him to testify while Southern was
-2-
No. 1-21-1645
involuntarily intoxicated, and asserting that the trial court abused its discretion by forcing post-
trial counsel to file a motion for a new trial before completing his investigation into the ineffective
assistance claims. The trial court found that Southern’s intoxicated testimony claim warranted
further inquiry and continued the matter to make an inquiry of trial counsel.
¶7 At the next hearing, on April 9, 2021, the trial court inquired both of trial counsel and
Southern about two incidents. First, Southern claimed that, on the day he was to testify during trial,
he was given another prisoner’s juice at lunch and that it contained psychotropic medication that
made him high. He further claimed that he told his trial lawyer about this at the time but that his
trial lawyer told him to testify anyway. Trial counsel denied that any such conversation took place
during the trial. Second, Southern claimed that, a month after trial, while in the holding cell behind
the courtroom, he and his trial counsel had an argument over raising the issue of Southern’s
intoxicated testimony, and this argument was witnessed by another prisoner, James Pope. Trial
counsel confirmed that this argument did, in fact, happen. The trial court limited the issues and
witnesses for the evidentiary hearing to the question of Southern’s intoxicated testimony. The trial
court then proceeded to appoint new counsel to represent Southern at that hearing.
¶8 At a subsequent status hearing, on April 13, 2021, newly appointed post-trial counsel
appeared and the trial court informed him that on the last court date, the trial court had limited the
issues and witnesses for the evidentiary hearing. Counsel raised no objection. After an evidentiary
hearing, on June 28, 2021, in which Southern, his trial counsel, and another witness testified, the
trial court denied Southern’s ineffective assistance claim. The trial court sentenced Southern to a
total of 43 years. Southern timely appealed. Ill. S. Ct. R. 606.
-3-
No. 1-21-1645
¶9 ANALYSIS
¶ 10 Southern argues that the trial court deprived him of his constitutional right to counsel and
due process when the trial court granted Southern’s request for appointment of counsel but
nonetheless limited the issues and witnesses for his evidentiary hearing without new post-trial
counsel present. Southern admits that he did not raise this issue below but argues that this court
should consider the issue under the plain error rule. People v. Jackson, 2022 IL 127256, ¶ 18. The
State argues that Southern has forfeited this argument because, among other reasons, his post-trial
counsel appeared at a status hearing prior to the evidentiary hearing and raised no objection when
the trial court informed him that on the last court date it had limited the issues and witnesses for
the evidentiary hearing. Nor did new counsel raise any objection at the evidentiary hearing itself.
Further, the State contends that the plain error rule does not apply because the trial court did not
commit any error.
¶ 11 The second prong of the plain error rule allows the reviewing court to consider an
unpreserved error when the error is so serious, regardless of the closeness of the evidence, that it
“affected the fairness of the defendant’s trial and challenged the integrity of the judicial process.”
People v. Herron, 215 Ill. 2d 167, 187 (2005). Such a rule “guards against errors that erode the
integrity of the judicial process and undermine the fairness of the defendant’s trial.” Id. at 186.
Whether an error constitutes second-prong plain error is a question of law that we review de novo.
People v. Johnson, 238 Ill. 2d 478, 485 (2010).
¶ 12 The common law procedure derived from Krankel “is triggered when a defendant raises a
pro se post-trial claim of ineffective assistance of trial counsel.” People v. Jolly, 2014 IL 117142,
¶ 29. A defendant need only bring his claim to the court’s attention—it is not necessary to file a
-4-
No. 1-21-1645
written motion and may be accomplished orally or through a letter to the court. People v. Ayres,
2017 IL 120071, ¶ 11. This procedure “serves the narrow purpose of allowing the trial court to
decide whether to appoint independent counsel to argue a defendant's pro se post-trial ineffective
assistance claims.” Id. (quoting People v. Patrick, 2011 IL 111666, ¶ 39).
¶ 13 “[S]ome 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., ¶ 12
(quoting Jolly, 2014 IL 117142, ¶ 30). The trial court is permitted to discuss the allegations with
trial counsel and the defendant, and make its determination based on its knowledge of trial
counsel’s performance at trial and the sufficiency of the defendant’s allegations. Id.; Jolly, 2014
IL 117142, ¶ 30. The goal of a Krankel inquiry “is to facilitate the trial court’s full consideration
of defendant’s pro se claim and thereby potentially limit issues on appeal.” Ayres, 2017 IL 120071,
¶ 13.
¶ 14 Here, the trial court committed no error, constitutional or otherwise. In making a Krankel
inquiry, the trial court must “ascertain the underlying factual basis for the ineffective assistance
claim and to afford a defendant an opportunity to explain and support his claim.” Id., ¶ 24. After
making inquiry of Southern and his trial counsel, the trial court determined that an evidentiary
hearing was warranted on defendant’s ineffective assistance claim pertaining to his supposed
involuntary intoxication. As to the other claims Southern raised, the trial court found that it had
already disposed of those issues in its prior rulings:
“THE COURT: Everything else, all the other issues that he raised in his pro se
motion on the last court date were basically things that had already been raised. Some of
-5-
No. 1-21-1645
them were things that you had raised such as evidentiary rulings I made and things like
that. That’s all been done.”
It is well established that in making a Krankel inquiry, the trial court is not always required to
appoint new counsel. People v. Banks, 237 Ill. 2d 154, 214 (2010) (“The law is clear, however,
that new counsel is not required in every case***.”) Rather, the trial court must conduct an
adequate inquiry into the factual bases of the claim and must only appoint new counsel if the
allegations show possible neglect on the part of trial counsel. Ayres, 2017 IL 120071, ¶ 11; Jolly,
2014 IL 117142, ¶ 29. That is precisely what the trial judge did here by limiting the subsequent
evidentiary hearing to the only claim raised that met the basic Krankel threshold and had not
already been addressed by the trial court. People v. Nitz, 143 Ill. 2d 82, 134 (1991) (if the trial
court’s inquiry reveals that defendant’s claim lack merit, “no new counsel need be appointed”).
¶ 15 Similarly, in limiting the witnesses for the subsequent evidentiary hearing, the trial court
ruled that trial counsel’s failure to call certain witnesses amounted to trial strategy:
“THE COURT: Based on what I heard and [trial counsel’s] representation that his
decisions not to call these witnesses were based on trial strategy, it does seem that these
were reasonable, rational decisions.”
As to Pope’s testimony, it was plainly unnecessary because the argument that he witnessed
between Southern and his trial counsel was not disputed:
“THE COURT: Mr. Pope, based on what I heard today, will not be required to
testify at the hearing because from what I heard today from [trial counsel] and from Mr.
Southern, Mr. Pope will not add anything additional to any discussion.”
The trial court is not mandated to call every witness a defendant may wish to present at a
-6-
No. 1-21-1645
subsequent evidentiary hearing. It is within the discretion of the trial court to permit only those
witnesses whose testimony is probative of defendant’s claims of ineffective assistance. Nitz, 143
Ill. 2d at 133.
¶ 16 Finally, the trial judge here exhibited commendable patience. He entertained not one, but
two Krankel inquiries, and as a result, he appointed not one, but two separate post-trial counsel.
The record simply does not support the claim that the trial judge somehow unfairly limited the
evidentiary inquiry into Southern’s ineffective assistance claims. Indeed, this is confirmed by the
fact that not one of Southern’s counsel raised an objection to the scope of the evidentiary hearing
or the exclusion of witnesses.
¶ 17 CONCLUSION
¶ 18 For all these reasons, we affirm the judgment of the circuit court of Cook County.
¶ 19 Affirmed.
-7-