People v. JohnsonPeople v. Johnson
ORDER
Held: We remand this case with directions for the trial court to conduct a preliminary inquiry pursuant to People v. Krankel, 102 Ill. 2d 181 (1984), and its progeny, because the trial court did not conduct an inquiry into the defendant‘s pro se allegations of ineffective assistance of counsel and the appointment of new counsel did not satisfy Krankel.
¶ 2 Following a jury trial, the defendant, Dimitri Johnson, was found guilty of unlawful possession of cannabis (
¶ 3 BACKGROUND
¶ 4 A summary of the evidence presented at the defendant‘s trial is as follows. On December 19, 2017, at approximately 10 a.m., Detective Jesse Thompson and Sergeant Warren Blake were conducting surveillance at the defendant‘s residence located at 2600 North 8th Street in Herrin, Illinois, as part of an investigation of the defendant. Detective Thompson and Sergeant Blake were in an unmarked car that had no police lights, sirens, or recording capabilities. Detective Justin Dwyer was in a separate vehicle located approximately two blocks away from the residence. Police Chief Tondini was also nearby in her own vehicle. Officer Robert Kraemer, a K-9 handler, was in his K-9 unit located near the Marion, Illinois, city limits.
¶ 5 At approximately 12:30 p.m., the defendant and his girlfriend, Jessica Keeling, exited the residence. The defendant was carrying a black duffel bag. The defendant and Keeling got intо a white 2005 Mercury Mountaineer registered to Keeling. The Mercury was a four-dour SUV with tinted windows. Keeling entered the front, driver‘s side, and the defendant entered the front, passenger side, placing the duffel bag on the floorboard by his
¶ 6 The Mercury left the residence, and Detective Thompson and Sergeant Blake followed the vehicle. At various times during the Mercury‘s travels on its way through Herrin to Marion different officers followed the Mercury in their respective vehicles. During this time, Detective Dwyer was informed over the radio that Detective Thompson had observed Keеling commit a traffic violation, by making an abrupt right turn. Specifically, Keeling “failed to provide the mandatory 200 feet of notification for indicating [her] intention to make a turn.” Because Detective Thompson did not have police lights or a siren, Officer Kraemer was asked to initiate a traffic stop on the Mercury. Officer Kraemer, who was sevеral blocks away, went to the location of the Mercury and activated his lights to stop the vehicle. Detective Thompson and Officer Kraemer both participated in the traffic stop, which occurred approximately 20 to 30 minutes after the Mercury originally left the residence.
¶ 7 Once the Mercury was stopped, Detective Thompsоn and Officer Kraemer approached the vehicle. Deputy Thompson approached the passenger side of the Mercury, and Officer Kraemer approached the driver‘s side. A K-9 was present at the scene but was not used to “walk around the vehicle.” Detective Thompson requested that the occupants of the Mercury roll down their windows because he could not see inside. The occupants complied. Once the windows were rolled down, Detective Thompson immediately detected an odor of cannabis and saw a metal cannabis smoking pipe in the “passenger side door pocket.” Detective Dwyer also approached the vehicle, and as he did so, detected an odor
¶ 8 After the defendant, Keeling, and Phillips exited the Mercury, Detective Thompson removed thе black duffel bag from the floorboard of the vehicle where the defendant had been seated. The duffel bag was partially unzipped, but Detective Thompson could not see inside the bag. Detective Thompson unzipped the duffel bag and when he looked inside, saw a firearm and a bag containing suspected cannabis. The firearm was a 9-millimetеr pistol with a magazine containing 16 rounds of ammunition. The bag of suspected cannabis weighed 116 grams. The suspected cannabis field-tested positive for cannabis.
¶ 9 At the scene of the stop, Detective Dwyer interviewed the defendant. Detective Dwyer provided the defendant with Miranda1 warnings. The defendant indicated that he understood his rights. The defendant then stated that the contents of the black duffel bag belonged to him. He indicated that he was holding the pistol for a friend and that the other occupants of the Mercury were unaware of what was in the duffel bag. The defendant had asked Keeling to run an errand for him and did not elaborate any further. The defendant claimed that prior to the traffic stop, he was planning to return the firearm to its original owner. The defendant told Detective Dwyer that the defendant had never fired the gun, but he had taken it “in and out of the bag several times.” He admitted that his fingerprints would be found on the weapon. Detective Dwyer ran a criminal history check of the
¶ 10 Keeling and Phillips were also provided with Miranda warnings and interviewed at the scene. Keeling was issued a traffic citation. Phillips was cited for possession of drug paraphernalia for the metal cannabis smoking pipe. Keeling and Phillips wеre allowed to leave the scene of the traffic stop.
¶ 11 At the police station, Detective Dwyer interviewed the defendant a second time. The defendant was again provided with Miranda warnings and signed a Miranda waiver form. The defendant told Detective Dwyer that the firearm belonged to a friend who lived near the defendant. The defendant stated that his friend‘s house had been raided by law enforcement, and, during the raid, the officers had missed the pistol. The defendant made a written statement in which he wrote: “Jessica Keeling and Jaelyn Phillips were completely unaware of the cannabis and firearm in the vehicle.” When Detective Dwyer told the defendant that officers were obtaining a search warrant for his residence, he became emotional and started to cry. He told Detective Dwyer that there was three-quarters of a pound of cannabis in a cooler inside the defendant‘s bedroom closet. The defendant also told Detective Dwyer that there were vials of cannabis wax inside the defendant‘s bedroom. The defendant indicated that he was the оnly person at the residence who was aware of the cannabis and cannabis wax. The interview of the defendant at the police station was not recorded.
¶ 12 Officers obtained a search warrant for the defendant‘s residence. When the officers
¶ 13 Danielle Adair, a forensic scientist at the Illinois State Police crime lab, determined that the suspected cannabis found in the cooler weighed 335 grams and tested positive for сannabis. She did not analyze the suspected cannabis from the duffel bag or the cannabis wax because the total weight did not exceed 500 grams, which would have been necessary to obtain a higher class of felony charge.
¶ 14 At trial, the parties stipulated that the defendant was a convicted felon. The defendant did not testify or present any evidence. Following deliberations, the jury found the defendant guilty of unlawful possession of cannabis and unlawful possession of a weapon by a felon.
¶ 15 The defendant filed a motion for new trial alleging that the trial court erred by denying a motion in limine filed by the defendant, admitting certain evidence, limiting
“For one, I would like to bring to the Court‘s attention that I felt a prior ineffect—provided ineffeсtual counsel due to the fact that during the course of my trial testimonies were given that should have been objected to; that there were no recorded or written evidence factually lies.
But in this case it was—it was my lawyer‘s responsibility to address these matters as well as providing me with my discovery in a timely manner, a discovery in which I‘ve still yet to see.
I hope these things would be considered in finding a proper sentence for me.”
The defendant also requested a furlough so that he could attend to some family matters before any term of imprisonment. The trial court asked trial counsel, “Anything?” to which trial counsel stated, “No, Your Honor.” The trial court sentenced the defendant to 6 years in the Illinois Department оf Corrections (IDOC) for the unlawful possession of cannabis conviction and 10 years in IDOC for the unlawful possession of a weapon by a felon conviction. These sentences were ordered to run concurrently and be followed by two years of mandatory supervised release.
¶ 16 Trial counsel filed a motion to reconsider sentence alleging that the defendant‘s sentence was excessive in light of the evidence at trial. The motion to reconsider sentence
¶ 17 Trial counsel subsequently sought to withdraw as the defendant‘s attorney because the defendant had indicated at sentencing that he beliеved trial counsel provided ineffective assistance. The trial court allowed trial counsel to withdraw and appointed new posttrial counsel to represent the defendant. Posttrial counsel did not file any motion concerning the defendant‘s pro se allegations of ineffective assistance of counsel. The trial court held a hearing on thе defendant‘s motion to reconsider sentence and denied the motion. The defendant‘s pro se allegations of ineffective assistance of counsel were not discussed at this hearing. This appeal followed.
¶ 18 ANALYSIS
¶ 19 On appeal, the defendant contends that the trial court failed to conduct an inquiry into the defendant‘s pro se allegation of ineffective assistance of counsel and that the appointment of posttrial counsel did not cure the trial court‘s error in failing to conduct a preliminary inquiry. The defendant asks this court to remand his case for a preliminary inquiry into his pro se allegations. The State concedes error and agrees that this case should be remanded for the purpose of conduсting a preliminary Krankel inquiry. We agree.
¶ 20 The common law procedure that has developed from Krankel and its progeny is triggered when a defendant raises a pro se posttrial claim of ineffective assistance of counsel. People v. Jackson, 2020 IL 124112, ¶ 96. When the defendant makes such a claim, the trial court should first conduct an inquiry into the claim‘s factual basis. Jackson, 2020 IL 124112, ¶ 97. If the trial court finds that the claim lacks merit or pertains only to matters
¶ 21 If the trial court has failed to conduct any inquiry into the defendant‘s pro se claims, the case should be remanded for the trial court to conduct a preliminary inquiry. People v. Moore, 207 Ill. 2d 68, 79 (2003). The primary purpose of the preliminary inquiry is to afford the defendant an opportunity to flesh out his or her claims of ineffective assistance of counsel so that the trial court can determine whether it is necessary to appoint new counsel. People v. Ayres, 2017 IL 120071, ¶ 20. Allowing trial counsel to withdraw and appointing new posttrial counsel to represent the defendant does not satisfy the Krankel procedure. Reed, 2018 IL App (1st) 160609, ¶ 51. The trial court must conduct some type of inquiry into the factual basis, if any, of the defendant‘s pro se posttrial claims of ineffective assistance of counsel. Reed, 2018 IL App (1st) 160609, ¶ 51. In conducting this inquiry, some interchange between the trial сourt and trial counsel regarding the facts and circumstances surrounding the ineffective assistance claims is permissible, and usually necessary, to assess whether further action is warranted. Ayres, 2017 IL 120071, ¶ 12. The
¶ 22 Here, during his statement in allocution at sentencing, the defendant made a pro se allegation of ineffective assistance of counsel sufficient to trigger a preliminary inquiry. The trial court conducted no such inquiry and proceeded with sentencing. After sentencing, trial counsel filed a motion to reconsider sentence but subsequently sought leave to withdraw because of the defendant‘s allegations during sentencing. Trial counsel was granted leave to withdraw, and new posttrial counsel was appointed to represent the defendant. Posttrial counsel did not file any motion concerning the defendant‘s pro se allegations of ineffective assistance of counsel. At the hearing on the motion to reconsider sentence filed by trial counsel, posttrial counsel only argued the previously filed motion to reconsider sentence. The defendant‘s pro se allegations of ineffective assistance of counsel were not discussed. Because the trial court failed to conduct the required inquiry into the defendant‘s claims and the appointment of posttrial counsel did not satisfy the Krankel procedure, we must remand this matter so that the trial court may conduct a preliminary inquiry into the defendant‘s allegations of ineffective assistance of counsel.
¶ 23 Because we are remanding this matter to allow the trial court to conduct a preliminary inquiry, we decline to address the defendant‘s claim on appeal that he was
¶ 24 For the foregoing reasons, we remand this matter to the trial court with directions that the court conduct a proper inquiry into the defendant‘s pro se posttrial allegations of ineffective assistance of counsel.
¶ 25 Remanded with directions.