THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES KYLES, Defendant-Appellant.
No. 2-18-0087
Appellate Court of Illinois, Second District
September 22, 2020
2020 IL App (2d) 180087
JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Bridges and Brennan concurred in the judgment and opinion.
Appeal from the Circuit Court of Winnebago County, No. 12-CF-1390; the Hon. John R. Truitt and the Hon. Brendan A. Maher, Judges, presiding. Reversed and remanded with directions.
Andrew S. Gable, of Chicago, for appellant.
Marilyn Hite Ross, State’s Attorney, of Rockford (Patrick Delfino, Edward R. Psenicka, and Adam Trejo, of State’s Attorneys Appellate Prosecutor’s Office,
OPINION
¶ 1 On May 14, 2012, defendant, James Kyles, was charged by information with aggravated battery with a firearm (
¶ 2 On appeal, defendant contends that (1) the judgment is void because the indictment did not invoke section 5-130(a)(1) of the Juvenile Court Act, (2) the trial court’s postsentencing admonishments did not comply with
I. BACKGROUND
¶ 4 On May 14, 2012, the State filed a four-count information. It gave defendant’s name and birthdate, December 1, 1995, followed by “(Juvenile Court Excluded Jurisdiction pursuant to
¶ 5 On June 6, 2012, the State filed a five-count indictment against Stallworth (case No. 12-CF-1389) and defendant (case No. 12-CF-1390). Count I read:
“On or about May 11, 2012, in the county of Winnebago, State of Illinois, JAMES KYLES committed the offense of ATTEMPT MURDER in that said defendant, with the intent to commit the offense of First Degree Murder ***, performed a substantial step toward the commission of that offense in that without lawful justification and with the intent to kill [D.J.-P.], the defendant discharged a firearm causing injury to [D.J.-P.] and said defendant personally discharged a firearm that proximately caused great bodily harm to [D.J.-P.]”
¶ 6 Counts II through V charged defendant and Stallworth with, respectively, attempted murder, aggravated battery with a firearm, aggravated unlawful use of weapons based on immediate accessibility (
¶ 7 On July 18, 2012, defendant was arraigned, and he and his counsel received a copy of the indictment. On October 17,
¶ 8 On September 3, 2014, the State moved to compel defendant to submit to the withdrawal of blood, hair, saliva, or a buccal swab. The motion alleged in part, “On May 11, 2012, [D.J.-P.] was shot in the head by an individual who was later identified as James Kyles.”
¶ 9 On November 6, 2015, the parties informed the court, Judge John R. Truitt, that defendant would plead guilty to aggravated battery with a firearm and the State would dismiss the remaining charges and recommend a sentence of no more than 25 years, 5 years less than the maximum. See
¶ 10 On January 1, 2016, a new sentencing statute took effect. See Pub. Act 99-69, § 10 (eff. Jan. 1, 2016). Under the new act, codified at section 5-4.5-105 of the Unified Code of Corrections (
¶ 11 On March 18, 2016, the cause proceeded to sentencing. D.J.-P.’s mother testified that her son was partially paralyzed, had undergone numerous surgeries, and faced a long rehabilitation. Four victim impact statements were admitted. Defendant’s sister and cousin testified that he had recently become less angry and more positive. In allocution, defendant apologized and said that he was now being medicated for his long-standing bipolar disorder. The State requested that defendant be sentenced to 25 years. Defendant requested 10 years.
¶ 12 Judge Truitt stated that he had considered the factual basis, the victim impact statements, the evidence from the hearing, defendant’s allocution, and “those factors in aggravation and mitigation that apply.” Defendant’s crime was “especially senseless” because the initial “beef” had been between Stallworth and the victim, but defendant intervened by taking the safety off the gun, pointing it at D.J.-P., and shooting him twice from six feet away. The judge continued:
“The Court is considering the following in mitigation: The defendant’s age. He wasn’t even 17 years old at the time this offense was committed. And we’re all aware of the studies out there and suggested changes in sentencing guidelines involving juveniles based at least in part on the fact that their brains aren’t developed. They don’t make wise decisions. And so I am taking into account the defendant’s age at the time of this offense.”
¶ 13 The judge also said that he had considered defendant’s mental health problems, the classes that he was taking in jail, that he did not come to the scene of the crime armed or intending to use a gun, and any sincere remorse that he showed in allocution. In aggravation, one primary factor was defendant’s history of delinquency,
¶ 14 On March 25, 2016, Jazwiec filed an amended motion to reconsider sentence contending that the court had improperly considered the extent of D.J.-P.’s injuries and had slighted defendant’s age and other mitigating factors. It did not mention the new sentencing statute.
¶ 15 On July 20, 2017, defendant moved pro se to withdraw his plea and vacate the judgment of conviction. He requested the appointment of new counsel. The motion contended in part that Jazwiec had rendered ineffective assistance, although it also raised a claim of actual innocence. Specifically, the motion alleged that Jazwiec misled defendant into pleading guilty by inducing him to believe that he would be sentenced to no more than 10 years’ imprisonment. Further, until the day before the plea hearing, Jazwiec assured defendant that no deals had been made and that the case would go to trial. On the day before the plea hearing, he told defendant that the State and the judge had agreed that he would get no more than 10 years. Just before the plea hearing, Jazwiec told defendant to answer “yes” to all of the judge’s questions and stay silent otherwise. The motion alleged that, but for Jazwiec’s errors, defendant would not have pleaded guilty.
¶ 16 On August 17, 2017, Jazwiec, whose amended motion to reconsider the sentence was pending, requested leave to withdraw. That day, at a hearing, Judge Brendan A. Maher stated that he had read defendant’s pro se motion and was permitting Jazwiec to withdraw. The judge appointed the public defender to represent defendant and review his pro se motion. On October 4, 2017, Margie O’Connor appeared as defendant’s attorney. The court continued the cause to October 17, 2017.
¶ 17 On October 17, 2017, O’Connor stated that defendant had decided to proceed only on the amended motion to reconsider the sentence and not on his pro se motion. The court set November 9, 2017, for argument on the former. On November 6, 2017, O’Connor filed a second amended motion to reconsider the sentence. It reiterated the contentions of Jazwiec’s motion and also asserted that the court had failed to consider the financial impact of incarcerating defendant and all of the factors in section 5-4.5-105(a).
¶ 18 On December 18, 2017, the court heard arguments on the second amended motion to reconsider the sentence. O’Connor contended that Judge Truitt never specifically mentioned section 5-4.5-105(a), showing that he had not considered all the factors therein. She argued further that Judge Truitt improperly considered the severity of the victim’s injuries and failed to consider the cost to the public of incarcerating defendant. On January 26, 2018, Judge Maher denied the motion. He explained that the record, including the sentencing hearing and the presentence investigation report, showed that Judge Truitt considered all the section 5-4.5-105(a) factors. Also, Judge Truitt specifically mentioned defendant’s age and “ ‘the studies out there and suggested changes in the
¶ 19 Judge Maher stated that although the plea was partially negotiated, defendant could still move to reconsider the sentence and thus had “a perfected right to an appeal.” Defendant appealed.
II. ANALYSIS
¶ 21 On appeal, defendant contends first that his conviction and sentence are void. Defendant argues that, for the court to acquire jurisdiction, the indictment had to comply with section 5-130(1)(a) of the Juvenile Court Act, which reads:
“The definition of delinquent minor under Section 5-120 of this Article [(
705 ILCS 405/5-120 (West 2010))] shall not apply to any minor who at the time of an offense was at least 15 years of age and who is charged with: (i) first degree murder; (ii) aggravated criminal sexual assault; (iii) aggravated battery with a firearm as described in Section 12-4.2 or subdivision (e)(1), (e)(2), (e)(3), or (e)(4) of Section 12-3.05 [(720 ILCS 5/12-4.2 ,12-3.05(e)(1) -(4) (West 2010))] where the minor personally discharged a firearm as defined in Section 2-15.5 of the Criminal Code of 1961 [(id. § 2-15.5 )] ***.These charges and all other charges arising out of the same incident shall be prosecuted under the criminal laws of this State.” (Emphases added.)
705 ILCS 405/5-130(1)(a) (West 2010).
Section 2-15.5 of the Criminal Code of 1961 (
¶ 22 Defendant argues that count III of the indictment, which charged the qualifying offense of aggravated battery with a firearm, failed to allege that he personally discharged a firearm. Defendant notes that the count was directed against both him and Stallworth and alleged only that “said defendants” discharged a firearm and shot D.J.-P. in the face. He concedes that count I, for attempted murder, did specifically allege that he personally discharged a firearm, but he argues that, because attempted murder is not covered by section 5-130(a)(1), count I did not cure the deficiency. For the following reasons, we hold that the indictment sufficiently alleged that defendant committed aggravated battery with a firearm by personally discharging a firearm.
¶ 23 Whether the prosecution of a minor is subject to automatic transfer under section 5-130(1)(a) depends on the charging instrument. People v. Fort, 2017 IL 118966, ¶ 30; People v. J.S., 103 Ill. 2d 395, 403 (1984). In deciding whether the indictment was sufficient, we must read it as a whole, keeping in mind that elements missing from one count may be supplied by another count. See J.S., 103 Ill. 2d at 409; People v. Wade, 2015 IL App (3d) 130780, ¶¶ 28-30.
¶ 24 Here, even if count III, charging aggravated battery with a firearm, did not sufficiently allege that defendant personally discharged a firearm, the indictment as a whole did. Read in isolation, the allegation that both defendant and Stallworth
¶ 25 Defendant’s second contention of error is that the trial court did not provide him proper postsentencing admonishments. He observes that he entered a negotiated plea, as the State agreed to a sentencing cap. Thus, he notes, under
¶ 26 Defendant simply misreads
¶ 27 Defendant’s third and fourth claims of error relate to the proceedings following his pro se motion. He contends that, at the Krankel hearing, the trial court failed to inquire into the basis of his claims that Jazwiec had been ineffective. He also contends that his new counsel, O’Connor, rendered ineffective assistance. We agree with both claims.
¶ 28 When a defendant presents a posttrial or postplea pro se claim that his trial counsel was ineffective, the trial court is not automatically required to appoint new counsel for him to argue his claim. People v. Moore, 207 Ill. 2d 68, 77 (2003). Instead, the court should examine the basis of the claim, and if it determines that the claim lacks merit or pertains only to matters of trial strategy, then it need not appoint new counsel and may deny the pro se motion. Id. at 77-78. However, if the allegations show possible neglect of the case, then new counsel should be appointed. Id. at 78. New counsel would then represent the defendant at the hearing on his claims of ineffective assistance. Id. This procedure promotes consideration of pro se ineffective-assistance claims in the trial court and limits the issues on appeal. People v. Jackson, 2020 IL 124112, ¶ 95; see also People v. Jocko, 239 Ill. 2d 87, 91 (2010).
¶ 29 The State contends that, because Jazwiec had already withdrawn and O’Connor had been appointed to represent defendant, the Krankel inquiry was not needed.
¶ 30 In Cunningham, after the trial court found the defendant guilty of attempted murder, his attorney told the court that the defendant had filed a complaint against him with the Attorney Registration and Disciplinary Commission (ARDC). The attorney requested a continuance for the defendant to obtain new counsel. The court did not inquire into the ARDC complaint but granted the continuance and then appointed new counsel, who represented the defendant at sentencing. On appeal, the defendant argued that a remand was needed for an inquiry into his ARDC complaint.
¶ 31 The appellate court disagreed. It reasoned that to obtain a preliminary inquiry, “a defendant must at least make some allegation of ineffective assistance of counsel for the court to consider and must provide some factual specificity of the reason for the allegation.” (Emphasis in original.) Id. at 304. The court was not obligated to make a Krankel inquiry merely because the defendant had complained about his attorney’s representation. Id. Further, when the defendant’s attorney told the court about the ARDC complaint, the defendant did not request new counsel. Id. at 305.
¶ 32 The defendant in Cunningham relied on People v. Jackson, 243 Ill. App. 3d 1026 (1993), in which the trial court learned of the defendant’s ARDC complaint against his attorney but denied the attorney’s request to allow him to withdraw and appoint new counsel. The court distinguished Jackson because there the trial court had denied Jackson’s request for new counsel. By contrast, Cunningham’s request for new counsel was granted, “thus rendering moot any required inquiry into the ARDC complaint.” Cunningham, 376 Ill. App. 3d at 306. The court stated, “In sum, the initial inquiry’s purpose is to determine whether new counsel should be appointed. Such an inquiry is irrelevant in the present case because [the] defendant received new counsel.” Id.
¶ 33 We find Cunningham distinguishable, as the primary basis for the court’s holding was that the defendant had failed to meet Krankel’s threshold requirement of an actual allegation of ineffective assistance with at least some factual basis. Defendant did so here. He also requested new counsel. To the extent that Cunningham holds that a defendant’s retention of new counsel automatically moots any inquiry into his pro se claim of ineffective assistance, we decline to follow it. To explain why, we turn to People v. Reed, 2018 IL App (1st) 160609. Although neither party cites Reed, it is highly instructive under facts very akin to those here.
¶ 34 In Reed, after the trial court found the defendant guilty of several charges, his attorney moved for a new trial. The defendant then filed a pro se claim of ineffective assistance on numerous grounds. The court allowed the attorney to withdraw. Eventually, the defendant retained a private attorney, who filed an amended motion for a new trial but essentially abandoned the claims of ineffective assistance. The court denied the amended motion for a new trial, sentenced the defendant, and denied his motion to reconsider the sentence. Id. ¶¶ 30-33.
¶ 36 We follow Reed to the extent that it holds that, if the defendant has made a sufficient pro se claim of ineffective assistance and request for new counsel, the general appointment of new counsel does not eliminate the trial court’s obligation to make a preliminary inquiry into the merits of the pro se claim. The salutary effects of retaining this requirement are two. First, the court retains the ability to weed out frivolous claims of ineffective assistance. This promotes judicial economy. If the trial court concludes that all of the pro se claims are frivolous, the court has fulfilled its obligation to inquire and no Krankel counsel is necessary. Further, having resolved the Krankel issue, where new counsel is appointed upon the withdrawal of prior counsel, new counsel will act as general counsel (not Krankel counsel) to represent defendant in the remaining proceedings. Second, if the court finds nonfrivolous ineffective-assistance claims, it can avoid the problem in Reed: the danger that the new attorney will not realize that he or she has a distinctive role as Krankel counsel and is not generally appointed to take up where the former attorney left off. This problem is present here, and it supports defendant’s fourth contention on appeal, to which we turn.
¶ 37 Defendant asserts that O’Connor did not fulfill her obligations under Krankel. He notes that, although his pro se motion raised several claims that Jazwiec had been ineffective, O’Connor neither pursued any of them nor moved to withdraw as counsel but instead proceeded solely on the pending motion to reconsider the sentence.1 Defendant argues that by abandoning all of his claims of ineffective assistance, O’Connor provided no representation as Krankel counsel and thus prejudice is presumed from her deficient performance. See United States v. Cronic, 466 U.S. 648, 657-58 (1984); People v. Downs, 2017 IL App (2d) 121156-C, ¶¶ 66-68.
¶ 38 We agree with defendant. Downs controls, although the facts there are far more byzantine and the Krankel attorney’s conduct much more egregious than anything here.
¶ 39 The crucial facts in Downs are these. After the defendant was convicted of first degree murder, but before sentencing,
¶ 40 On appeal, we disapproved of the court’s procedure and remanded the cause for the appointment of new Krankel counsel. The trial court reappointed the original Krankel attorney, who filed a third amended motion that argued that the bench-trial and alibi claims were without arguable merit and abandoned any claim other than a bare-bones assertion of ineffective assistance. Id. ¶¶ 22-26. At a hearing, the court directed Krankel counsel and the State to argue the third amended motion; the court then denied the motion as insufficient to raise a claim of ineffective assistance of trial counsel. Id. ¶¶ 32-33. After further appellate proceedings, we held that Krankel counsel had abdicated his role, so that prejudice was presumed. Id. ¶ 33; see People v. Downs, 2016 IL App (2d) 121156-B. The supreme court directed us to vacate our opinion and reconsider. Downs, 2017 IL App (2d) 121156-C, ¶ 33.
¶ 41 On reconsideration, we adhered to our holding that Krankel counsel had been ineffective for completely abandoning his obligations to the defendant and thus, in accordance with Cronic, prejudice was presumed. We explained that, upon appointment, the duty of a Krankel attorney is to satisfy both the obligation to represent his client by discerning and presenting nonfrivolous claims and the obligation not to present a frivolous pleading. Id. ¶ 49. Therefore, as with criminal defense attorneys in general (see, e.g., Anders v. California, 386 U.S. 738 (1967); People v. Kuehner, 2015 IL 117695, ¶ 21), “if Krankel counsel cannot find even a single nonfrivolous allegation of ineffective assistance of counsel,” he or she must move for leave to withdraw from representing the defendant. Downs, 2017 IL App (2d) 121156-C, ¶ 51.
¶ 42 We turned to the specific issues in the case. We held first that Krankel counsel had performed deficiently by essentially abandoning all the defendant’s ineffective-assistance claims, including the alibi claim, which we concluded was nonfrivolous. Id. ¶¶ 55-56.
¶ 43 Further, we held not merely that counsel had performed deficiently but that he had utterly failed to subject the ineffective-assistance claims to meaningful adversarial testing, thus creating a presumption of prejudice. Id. ¶ 66. Counsel not only abandoned all of the defendant’s claims but argued against them. Id. ¶ 68. By presenting essentially nothing—the nonspecific catch-all claim of ineffectiveness—counsel had provided “no representation at all.” Id. ¶ 69.
¶ 44 We then applied our earlier caveat about frivolous pleadings. Recognizing that counsel had not been obligated to present
¶ 45 We reversed and remanded with instructions to the trial court to appoint a Krankel attorney (not the previous one) to investigate the defendant’s claims of ineffective assistance and present any that were not frivolous. We directed the court to hold an appropriate second-stage adversarial hearing on the claims, if any, that counsel presented. Alternatively, we ordered that, if counsel concluded that no nonfrivolous claims existed, then counsel must file a motion to withdraw and an accompanying memorandum explaining why no claims had arguable merit. Id. ¶ 94.
¶ 46 We apply Reed and Downs here and conclude that, on this record, defendant’s Krankel counsel abandoned the ineffective-assistance claims that defendant raised in his pro se motion but she did not move to withdraw. Counsel’s conduct here was far less egregious than in Downs, and to compare the two is, in some sense, unfair. Still, the only resolution of defendant’s pro se motion in this case is counsel’s statement on the record, and in defendant’s presence, that defendant had decided not to proceed on his pro se claims. Counsel did not indicate whether she had independently evaluated the pro se claims and whether she found any of them to be meritorious. Given that counsel did not move to withdraw, she very well may have evaluated the pro se claims and found some of them to be meritorious but, upon consultation with and direction from defendant, declined to pursue them. On the other hand, it is possible that counsel did not evaluate the pro se claims and simply withdrew them, proceeding thereafter consistent with her appointment as new trial counsel. Because it is not clear from the record whether counsel fulfilled her duty to independently evaluate defendant’s pro se claims, we must conclude that counsel failed to act as Krankel counsel at all. As such, prejudice is presumed under Downs.
¶ 47 We recognize counsel’s predicament here. Rather than appoint new counsel solely to make a preliminary inquiry into defendant’s pro se claims of ineffective assistance against his trial attorney, the trial court appointed new counsel to perform the dual role of Krankel counsel and of trial counsel for the remaining matters. Thus, the trial court put counsel in a difficult position. If counsel did not find a meritorious issue in defendant’s pro se motion, she could not withdraw, as she was also appointed to represent defendant on the remaining underlying proceedings. The better practice would have been for the trial court to make a preliminary Krankel inquiry and, assuming defendant’s pro se motion met the standard, appoint new counsel as Krankel counsel only, rather than as counsel in a dual role.
¶ 48 We reverse the judgment and remand the cause with directions to the trial court to appoint new counsel, who will investigate defendant’s pro se claims of ineffective assistance and then either (1) present any nonfrivolous claims in a proper motion and at a second-stage Krankel hearing or (2) move to withdraw on the basis that there are no nonfrivolous claims and, on the record, support the request to withdraw with a reasonably specific explanation of the facts and the law in support thereof.
III. CONCLUSION
¶ 50 For the reasons stated, we reverse the judgment of the circuit court of Winnebago County and remand the cause with directions.