THE PEOPLE OF THE STATE OF ILLINOIS, Plаintiff-Appellee, v. PAUL E. JINDRA, Defendant-Appellant.
No. 2-16-0225
Appellate Court of Illinois, Second District
July 10, 2018
2018 IL App (2d) 160225
JUSTICE BURKE delivered the judgment of the court, with opinion. Presiding Justice Hudson and Justice Hutchinson concurred in the judgment and opinion.
Appeal from the Circuit Court of Stephenson County, Nos. 15-CM-646, 15-CM-647; the Hon. James M. Hauser, Judge, presiding. Judgment Affirmed.
Michael J. Pelletier, Thomas A. Lilien, and Andrew Smith, of State Appellate Defender’s Office, of Elgin, for appellant.
Carl H. Larson, State’s Attorney, of Freеport (Patrick Delfino, David J. Robinson, and Marshall M. Stevens, of State’s Attorneys Appellate Prosecutor’s Office,
OPINION
¶ 1 Following a bench trial, defendant, Paul E. Jindra, was convicted of two counts of disorderly conduct (
I. BACKGROUND
¶ 3 Prior to trial, defendant’s attorney, Assistant Public Defender Travis Lutz, subpoenaed Brissa Cuthbertson tо testify. Cuthbertson appeared for trial on the originally scheduled trial date. However, at the State’s request, the trial was continued to a later date. The court informed Cuthbertson that her subpoena was continued to the new date set for trial and issued her a reminder slip for the new date. On the new date set for trial, Cuthbertson failed to appear. Despite Cuthbertson’s absence, Lutz did not request a сontinuance and answered that the defense was ready for trial. Cuthbertson was not mentioned in any witness’s testimony.
¶ 4 The court found defendant guilty of all counts, sentenced him to one year of conditional discharge, and ordered him to pay a fine and a fee.
¶ 5 On the same day as sentencing, defendant filed a pro se motion, titled “Motion
“I would like the judge to reconsider this case. [T]he key witness, Brissa Cuphbertson [sic], did not appear in court, nor was her written statement submitted to the judge. The public defender was Mr. Travis Lutz. This eye witness [sic] is crucial to this defense.”
¶ 6 At the next court date, Lutz was unsurе of how to proceed with the case because defendant had filed a pro se motion and Lutz had subsequently filed a motion for a new trial. Lutz informed the court that he was ready to proceed on the mоtion for a new trial. The court then reminded defendant that he was represented by counsel, that he was “not to file any pleadings,” and that, instead, he should do so through his counsel. Defendant responded that he understood. The court asked if Lutz would like time to consult with defendant about his motion to reconsider. Lutz responded “yes,” that he would speak to defendant, and that, “if that’s what we’re going to do,” Lutz would file a рroper motion to reconsider.
¶ 7 When the court set a date to hear the motions, defendant interjected, “That’s an important point. New information is supplied by Brissa—Brissa Cuthbertson.” The court instructed dеfendant to speak with his attorney about that, but defendant continued, “Yes. She doesn’t care. She’ll come tomorrow, if you ask her. She says it was a mistake. She didn’t think she was supposed to show up last week.” Thе court again admonished defendant to speak with his attorney.
¶ 8 At the next court date, Lutz addressed the matter of the pro se motion to reconsider. Lutz told the court, “I don’t think we’re looking to proceed on thаt in any fashion. I’d rather ask to proceed on the motion for new trial that I had filed.” This motion, which did not mention Cuthbertson, was heard and denied. Defendant timely appeals.
II. ANALYSIS
¶ 10 The sole issue on appeal is whether the trial court should have conducted a preliminary inquiry pursuant to Krankel into defendant’s alleged claim that he was denied the effective assistance of counsel because of counsеl’s failure to secure the presence of a key witness and to notify the judge of the witness’s statement. Defendant’s posttrial motion stated:
“I would like the judge to reconsider this case. [T]he key witness, Brissa Cuphbеrtson [sic], did not appear in court, nor was her written statement submitted to the judge. The public defender was Mr. Travis Lutz. This eye witness [sic] is crucial to this defense.”
¶ 11 The State responds that no Krankel inquiry was necessary because defendant’s pro se motion did not make an explicit or clear complaint about counsel’s performance. The State maintains that defendant’s claim pertained to his belief that Cuthbertson was a necessary witness, with no indication that he was dissatisfied with his counsel.
¶ 12 When a defendant presents a pro se posttrial claim of ineffective assistance of counsel, the trial court should conduct an inquiry to examine the factual basis of the claim. People v. Jolly, 2014 IL 117142, ¶ 29; People v. Moore, 207 Ill. 2d 68, 77-78 (2003). If a defendant’s pro se allegations of ineffective assistance of counsel show possible neglect, new counsel is appointed to represent the defendant in a full hearing on his claim. Moore, 207 Ill. 2d at 78.
¶
¶ 14 Recently, the supreme court in People v. Ayres, 2017 IL 120071, considered whether the defendant’s bare allegation of “ineffective assistance of counsel” contained in a motion to withdraw his guilty рlea and vacate his sentence was sufficient to trigger the trial court’s duty to conduct a preliminary Krankel inquiry, even though the allegation lacked any explanation or supporting facts. Id. ¶ 18. The court concluded that a defendant’s “clear claim asserting ineffective assistance of counsel, either orally or in writing, *** is sufficient to trigger the trial court’s duty to conduct a Krankel inquiry.” Id. Thus, to be sufficient, the complaint must be clear.
¶ 15 We must determine therefore whethеr defendant did enough to trigger the trial court’s duty to inquire. In other words, whether defendant brought a clear claim to “the court’s attention.” Id. ¶ 24. We find that defendant’s statements fell short of a clear claim of ineffеctive assistance of counsel that would trigger the trial court’s duty to conduct a preliminary Krankel inquiry.
¶ 16 Defendant never stated, orally or in writing, that counsel was ineffective. Although defendant’s motion mentioned his counsel, it is unclear that defendant, in fact, was complaining about counsel. In short, defendant failed to make a clear claim asserting ineffective assistance of counsel sufficient to promрt the court’s duty to conduct a Krankel inquiry.
¶ 17 In People v. Thomas, 2017 IL App (4th) 150815, ¶ 31, the court held that the defendant was not entitled to a Krankel inquiry. The defendant did not mention his counsel in his letter to the trial court or reference his counsel in any way. In addition, by the time it received the defendant’s letter, the trial court wаs aware that both parties had been operating under the misconception that the defendant’s charges were subject to sentencing at 85%, and the defendant was present when the State and thе defendant’s counsel learned of the error. Thus, the defendant’s letter, wherein he stated that he would not have entered his plea if he had known that he could have received 50% if he had gone to trial, “could have easily appeared to be his hoping to somehow get another chance at a lesser sentence.” Id. ¶ 27. As he made no mention of his counsel, or any assertion of ineffective assistance, the letter was subject to many interpretations, including the defendant’s ex post facto regret at not taking the State’s alleged offer. Id. ¶ 28.
¶ 18 In Taylor, the defendant stated during allocution that he did not take a previously tendered plea deal only because ” ‘I had no idea what I was facing’ ” and that ” ‘I would [have] jumped into it with both feet if I knew that I was facing this type of situation.’ ” Taylor, 237 Ill. 2d at 73. There was nothing in the defendant’s statement specifically informing the court that he was comрlaining about his attorney’s performance. Nor did the defendant even mention his attorney. Further, because his statement was “rambling,” it was “amenable to more than one interpretation.” Id. at 77. According to thе State, the statement merely showed regret at rejecting the more advantageous plea deal before trial and not that he rejected the offer due to a material misunderstanding of what sеntence he faced. Id. The supreme court agreed with the State that the statement
¶ 19 The same is true in the present case. While defendant did mention counsеl in his motion, he did not complain about counsel’s performance. Nor did he complain about counsel in his oral statements to the court. “In instances where the defendant’s claim is implicit and cоuld be subject to different interpretations, a Krankel inquiry is not required.” Thomas, 2017 IL App (4th) 150815, ¶ 26. As in Thomas and Taylor, defendant’s statements could be subject to differing interpretations. He easily could have been hoping for the trial court to reopen the proofs in order to hear the witness. Absent a clear claim of ineffective assistance of counsel, the trial court’s duty to conduct a Krankel inquiry was not triggered. See Ayres, 2017 IL 120071, ¶ 18 (a defendant’s “clear claim asserting ineffective assistancе of counsel, either orally or in writing, *** is sufficient to trigger the trial court’s duty to conduct a Krankel inquiry“).
¶ 20 We disagree with defendant’s suggestion that People v. Peacock, 359 Ill. App. 3d 326 (2005), is sufficiently similar to the facts presented here. In Peacock, the court held that the defendant had triggered a preliminary Krankel inquiry when he complained to the trial court that his attorney hаd not represented him to the full extent of his ability, specifically by failing to subpoena the defendant’s witnesses and by ineffectively cross-examining witnesses at trial. Id. at 339-40. The defendant’s statements contained express accusations of ineffective assistance against the defendant’s attorney. In contrast, here, defendant’s statements concerned his belief that Cuthbertson was a necessary witness, with no clеar indication that he was dissatisfied with Lutz’s performance as counsel. There simply is no clear accusation of ineffective assistance, in defendant’s pro se motion or anywhere else in
the record. As defendant’s statements fell shоrt of a “clear claim asserting ineffective assistance of counsel” (Ayres, 2017 IL 120071, ¶ 18), he was not entitled to a Krankel inquiry. Accordingly, we conclude that defendant did not sufficiently raise a pro se claim of ineffective assistance of counsel аnd that the trial court did not err in failing to conduct a preliminary Krankel inquiry.
III. CONCLUSION
¶ 22 For the foregoing reasons, the judgment of the circuit court of Stephenson County is affirmed. As part of our judgment, we grant the State’s request that defendant be assessed $50 as costs for this appeal.
¶ 23 Affirmed.