delivered the opinion of the court:
Defendant appeals the denial of his posttrial motion for a new trial. He argues that the trial court ignored an oral motion made by defendant claiming ineffective assistance of trial counsel. No issues are raised attacking the guilty verdict. We remand with directions to consider the motion. The court is also directed to consider a record from the Attorney Registration and Disciplinary Commission (ARDC) documenting disciplinary action taken against defendant’s trial attorney for conduct, some of which was contemporaneous with the attorney’s representation of defendant.
Defendant was charged in June 1996 with first degree murder, attempted first degree murder and alternative counts of aggravated discharge of a firearm. Defendant appeared in court on June 25, 1996, and entered a not-guilty plea. Defendant was represented by the public defender on that date. A March 10, 1997, trial date was set.
Defendаnt appeared in court on March 10 with a privately retained attorney. The trial was continued to April 21, 1997. The record shows the case was next called on June 2, 1997. On that date, the State told the court that defendant’s private attorney had been suspended from practice by the ARDC. The court struck defendant’s attorney’s earlier filed appearance and appointed the public defender. The court noted for the record that the ARDC had suspended defendant’s attorney from practice and recommended that the attorney be disbarred. The case was continued to June 24, 1997.
The public defender appeared for defendant on August 5, 1997, and asked that defendant’s fitness to stand trial be determined. The court ordered that defendant be examined and continued the case to September 15, 1997.
The next entry in the record shows that the case was called for trial on July 28, 1998. The public defender аppeared for defendant. Defendant waived his right to a trial by jury. The State then made an opening statement. Before the public defender’s opening statement, the court noted that the charges against defendant subjected him to consecutive sentences. The court asked defendant if he understood the scope of the potential penalties he faced and further questioned whether defendant still intended to waive his right to a jury. Defendont said that he wanted a jury after a brief exchange with the court. The court then struck the jury waiver and the case was set for trial on August 24, 1998.
On August 24, a private attorney appeared for defendant. The attorney asked for a 60-day continuance to prepare for trial. The State agreed to the continuance so long as the case would be tried within 60 days. The court said it was reluctant to grant the continuance because of the age of the cаse and noted that defendant had been in custody since 1996:
“[The public defender] is ready and ready in a timely manner. So while I am hesitant to continue this case, [defendant] has had to go through the experience of having a lawyer that was disbarred, and his case was delayed for that reason.
I want him to be tried [with] an attorney of his choice. I will allow [the attorney] to file his appearance with the understanding I expect this case to go to trial in about 60 dаys. So the public defender is given leave to withdraw.”
The case was then continued to September 14, 1998. The court continued the case to September 16 when defendant’s attorney was not able to appear on September 14. Defendant’s attorney appeared on September 16 and asked for a two-week status date. The case was then continued by agreement to October 2, 1998.
The record shows that defendant’s attorney failed to appear on October 2, 1998. The court noted for the record that there had been some discussion that defendant’s attorney was ill and was being hospitalized. The case was continued for one week to October 9, to “track [defendant’s attorney] down.”
Defendant’s attorney next appeared on October 30. The case was set for trial for December 15 and 16. The case was again continued to February 1, 1999, due to a conflict in the trial court’s schedule.
On February 1, 1999, the court learned that defendant’s attorney had been arrested the day before on a charge of possession of controlled substances. The court noted that defendant’s attorney also had a contempt matter pending before another judge. Defendant’s attorney explained that, because of his arrest, he was not prepared to proceed to trial on defendant’s case:
“Had I not been picked up yesterday, I had intended on answering ready. I got picked up yesterday afternoon. Under the circumstances, this is preventing me from being ready today.”
Defendant’s attorney then admitted that he was in the court building to appear on his criminal charge and that he could not advise the court when he would be able to proceed on defendant’s case until after his bond hearing. The court then addressed defendant:
“THE COURT: [Defendant], do you understand I want to make sure you understand what I have been talking about to [your attorney], Apparently [your attorney] was arrested and charged with a criminal offense last night. He informed me just now it’s a possession of controlled substance matter. Do you understand that?
DEFENDANT: Yes.
THE COURT: All right. He is not in a position to try your case today because of the fact that I assume he stayed in the jail last night and doesn’t have his files with him and has some other court appearances he has to make with regard to himsеlf. Do you have any thoughts about that?
DEFENDANT: I have a couple of thoughts, you know. First you know, when I had my first lawyer that same thing happened with my first lawyer *** I lost that lawyer.
You know, my family, you know, man, we ain’t got money like that to be paying for lawyers, you know. I am trying to work on getting my money back from [my first lawyer], which I have not gotten.
THE COURT: Well, [your attorney] still represents you unless you don’t want him to. [Your attorney] has indicated to me that he intends to have a conversation with you either today or tomоrrow when he has the opportunity to get released from custody. You were just informed of this so I don’t expect you to make a snap decision. What I am going to do is I am going to have to have a further conservation with you, [defendant], to determine if you still want [your attorney] to represent you.
Understanding not just the fact that he was arrested because he certainly has not been convicted of anything with regard to that, but the fact that he is under a charge here in Cook County, if that case remains pending, he is in a situation where he is in a position where he has to defend himself with regard to criminal charges and that may take away from his ability to give adequate attention to your case. It also may raise some conflictual issues in terms of his relationship with the [S]tate’s [Attorney's office, in that he [is] being prosecuted by the office in which he is trying the case against. So do you understand what I am saying?
DEFENDANT: Yes.”
Defendant was also reminded thаt an attorney could be appointed for him should he decide he no longer wanted to be represented by his attorney and could not afford another one. The case was then continued to February 3 to allow defendant to speak with his attorney.
Defendant appeared on February 3 and said that he wished to continue with his attorney. Defendant said that he had spoken with his attorney and thought about the implications and had decided he did not want tо change attorneys. Defendant said he understood that his attorney had been charged with a crime and was being prosecuted by the same office prosecuting him. He denied that his attorney’s situation created a conflict:
“DEFENDANT: I don’t think there is going to be no conflict. That’s his case. That had nothing to do with my case.
THE COURT: You don’t think that distracts [from] his ability to represent you?
DEFENDANT: No. I’m innocent. He can’t go against me. He can’t say nothing against me.
THE COURT: You are confident he will be аble to give his loyalty to you and his full attention to you?
DEFENDANT: Yes.
THE COURT: You want to stay with him?
DEFENDANT: Yes.
THE COURT: Even though he is being prosecuted by the State’s Attorney’s Office?
DEFENDANT: Yes. I don’t think there should be no reason for it.”
Defendant’s attorney then denied that the criminal charge pending against him created a conflict. He assured the court that he would be able to aggressively represent defendant and did not believe that the criminal charge would hamper him. The court then continued the case to February 5, to review relevant case law.
On February 5, 1999, defendant’s attorney filed a document titled “Defendant-Attorney Acknowledgment of Defense Counsel’s Pending Criminal Matter and Potential Legal Ramifications of Said Matter to the Defendant.” This document revealed that the attorney had been arrested for possession of a controlled substance on January 31, 1999, and that the case was set for preliminary hearing on March 25, 1999. The document said that the attorney had voluntarily disclоsed and discussed the following:
“A) There now exist [sic] a potential conflict of interest by virtue of the fact that I am being prosecuted by the same State’s Attorney’s Office which is prosecuting the defendant’s case. I have explained that it could be argued that I would or could compromise the defendant’s case in order to seek a benefit from the State’s Attorney’s Office on my case.
B) It could also be argued that my own pending criminal charge will consume my time and energies to the detriment of the defendant’s case.
C) Finally, depending upon the outcome of my pending criminal charge I could if found guilty have my license to practice law suspended or revoked.”
The document then revealed that the attorney had assured defendant that he was not guilty of the crime charged and that the attorney would not be distracted from his representation of defendant. Defendant signed the document and executеd the option showing that he intended to keep his attorney and waive the conflict. The court then questioned defendant at length:
“THE COURT: And when you signed this document under option one as listed in this document, do you understand that what you’re saying is you want [your attorney] to continue to represent you?
DEFENDANT: Yes, sir.
THE COURT: Is that what you want?
DEFENDANT: Yes, sir.
THE COURT: And you are also acknowledging that you understand everything that is in this document?
DEFENDANT: Yes, sir.
THE COURT: And that you understand all the potential conflict of interest matters that are raised with regard to [your attоrney’s] pending criminal charge, do you understand that?
DEFENDANT: Yes.
THE COURT: He explained it to you?
DEFENDANT: Yes.
THE COURT: Okay, Well, do you understand, sir, that what could be claimed is there is a couple of things, okay. As a result of [your attorney’s] recent arrest, what could be claimed is that [your attorney] is in a conflict situation because he’s currently being prosecuted by the same agency that is prosecuting you. And it could be argued that [your attorney] would have a tendency to compromise your case or do something that would be to your detriment in order to seek a benefit from the State’s Attorney’s Office for his own case.
Do you understand that that is something that could be argued and you could argue that? Do you understand what I said?
DEFENDANT: Yes.
THE COURT: Okay. And do you see that as a problem, sir? I want to make you understand what I just said because you’re kind of squinting at me.
DEFENDANT: Because what I read is he’s saying this. He’s not going to — you know, go against me on this case. He’s going to represent me. Like I said, he’s going to represent me.
THE COURT: Let me put it in simpler terms, okay?
One of the potential conflicts is simply that the fact that [your attorney] is currently charged with a crime, in his efforts to defend himself, would consume his energies and direct his attention away from you in your case towards his own case, he wouldn’t be able to think about your case enough, even enough time to devote to your case. That is one of the potential conflicts. And he’s indicating that he doesn’t believe that to be the case.
The other potential cоnflict is that the fact that he’s being prosecuted by the same people that are prosecuting you. So for example, I’m just going to put it in the most basic terms. The potential conflict would be that somewhere down the line you could say or that you might feel that [your attorney] could go to the State’s Attorney’s Office and say, you know, what I’m going to ***.
Well, I’m not going to do such a good job for [defendant]. So you take it easy on me, do you understand. *** [H]e might not represеnt you too aggressively or he might not do such a good job for you and [hope] in return for the State’s Attorney’s Office, the State’s Attorney Office would take it easy on him in his case. Do you understand that?
DEFENDANT: Yes.”
The record shows that the court continued questioning defendant. Defendant repeatedly said that he wanted to continue with his attorney and that he understood what the potential conflict was and that he did not believe there was a problem:
“THE COURT: Okay, so you’re telling me yоu want him to keep representing you even though he has these pending charges and even though there [is] this potential for conflict that I told you about, right?
DEFENDANT: Right, because I feel, you know, that this case he’ll handle and do my case.
THE COURT: And you feel *** that he’s going to devote his full energies to you and you feel he won’t do anything to your detriment, is that what you’re telling me?
DEFENDANT: Yes.”
The court accepted defendant’s signed waiver and set the case for trial.
The case was tried on March 12, 1999. Defendant submitted a second written jury waiver. The court accepted the waiver. The State then made an opening statement. Defendant waived opening. The State presented its case against defendant. Defendant cross-examined the State’s witnesses and presented two defense witnesses. The court found defendant guilty of all charges on March 15, 1999. The case was set for sentencing on April 20.
Defendant appeared on April 20 with a new аttorney who filed a motion for new trial on defendant’s behalf. The court denied the motion. The court then heard arguments relating to sentencing. Before imposing sentence, the court asked defendant if there was anything he wanted to say. Defendant said that his attorney failed to investigate his case. Defendant said he was framed and that he could have proved that if his attorney had investigated his case. The court made no response to defendant’s rеmarks. The court then sentenced defendant to consecutive sentences of 50 years for first degree murder and 25 years for attempted first degree murder. The appellate defender was appointed to file defendant’s appeal.
Defendant first argues on appeal that the trial court erred in failing to consider defendant’s pro se oral posttrial remarks alleging ineffective assistance. Appellate counsel characterizes defendant’s posttrial remarks as a “motion.” We adopt that characterization. We believe, under the unique circumstances of this case a preliminary inquiry was called for when defendant expressed dissatisfaction with his trial attorney. People v. Robinson,
Defendant contends that the written posttrial motion presented by his new attorney at the sentencing hearing was prepared by his trial attorney. The motion did not make ineffective assistаnce allegations. Defendant told the trial court that his trial attorney did not investigate his case, did not confer with defendant and failed to interview witnesses. The record shows no acknowledgment of defendant’s statements by the trial judge, who then proceeded to sentence defendant.
A trial court must examine the factual matters underlying a defendant’s pro se claim of ineffective assistance of trial counsel. Robinson,
We now consider a motion taken with the case. After this appeal was filed, defendant filed a motion to supplement the appellate court record with the record of an ARDC proceeding conducted after defendant’s trial. The State objected, arguing that counsel’s alleged ineffectiveness and defendant’s waiver of conflict-free counsel must be decided only on the record in this case. The State maintains that the ARDC record reveals facts disclosed after defendant’s criminal trial and should be raised in a postconviction petition. Matters that were not and could not have been raised at trial are generally reserved for postconviction petitions. 725 ILCS 5/122—1 (West 2000).
We note and understand the State’s objection to consideration of the ARDC record. The record of counsel’s performance at the trial is ordinarily the only relevant consideration to determine whether his client received effective assistance. People v. Williams,
A similar consideration of records extraneous to the trial at issue was conducted in People v. Allen,
Consideration of the ARDC record, a public document, is warranted here. A defendant may not be entitled to perfect representation, but he is entitled to competent representation. People v. West,
Last, we consider whether double jeopardy applies should the trial court decide that a new trial is warranted. Double jeopardy does not preclude retrial of a defendant whose conviction is supported by sufficient evidence but set aside because of errors in process. Peоple v. Olivera,
Evidence is sufficient when a rational trier of fact could find that the essential elements of the offense were proven beyond а reasonable doubt. People v. Collins,
Jose Velez testified that he saw defendant push the murder victim to the ground and shoot him twice. Velez identified defendant as the shooter at trial. Defendant’s girlfriend testified that defendant admitted to her that he shot the victim. Concepcion Velez, the attempted-murder victim, testified at trial that defendant shot her. The gunshot passed through her left palm, past her heart and lung. This evidence is sufficient for a trier of fact to find the elements of murder and attempted murder beyond a reasonable doubt. There is no impediment to a new trial, should the trial court determine on remand that defendant’s allegations of ineffective assistance of counsel have merit. Our conclusion regarding the sufficiency of the evidence is not a finding of defendant’s guilt that would be binding on retrial. People v. McDonald,
We note that defendant’s consecutive sentencеs of 50 years for murder and 25 years for attempted murder were not challenged under the Supreme Court’s recent pronouncement in Apprendi v. New Jersey,
The Wagener court noted that Apprendi “explicitly disclaimed any holding regarding consecutive sentencing” and the conclusion that consecutive sentencing triggers Aрprendi extends the case beyond its facts. Wagener,
Defendant here was sentenced to 50 years for murder and 25 years for attempted murder. Each of these sentences was within the statutory range prescribed by statute. See 730 ILCS 5/5—5—3 (West 1998). Apprendi is not implicated and need not be considered on remand.
Cause remanded with directions; motion granted.
GORDON and McBRIDE, JJ., concur.