SECOND DIVISION June 30, 2015

No. 1-13-1023

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 12 CR 2902 ) KENNETH WASHINGTON, ) Honorable ) Kevin M. Sheehan, Defendant-Appellant. ) Judge Presiding.

JUSTICE PIERCE delivered the judgment of the court, with opinion. Justices Neville and Liu concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial, defendant Kenneth Washington was found guilty of possession

of a controlled substance, then sentenced to 2 1/2 years' imprisonment. On appeal, defendant

contends that his cause should be remanded for consideration of his oral pro se posttrial claim of

ineffective assistance of trial counsel under People v. Krankel,

(1984).

¶2 The record shows that defendant was charged with possession of a controlled substance

with intent to deliver on February 3, 2012. At a status hearing held prior to trial on July 2, 2012,

defendant expressed his desire to obtain new counsel to replace the assistant public defender who

had been appointed to represent him. The trial court gave defendant 10 days to find a new

attorney and determined that the public defender would remain on the case unless and until a

private attorney came in. The record indicates that on August 16, 2012, the next recorded status

date, the same public defender was representing defendant, and defendant made no mention of

his previously stated desire to obtain new counsel then or throughout the ensuing trial. 1-13-1023

¶3 Chicago police officer Turner Goodwin testified at trial that he and his partner, Officer

Clifton Turner, were on patrol in the area of 111th Street and King Drive in the morning hours of

January 12, 2012, when they observed the driver of a red Saturn turn without signaling. The

officers conducted a traffic stop, and defendant stepped out of the car and started walking toward

the officers, who had also exited their vehicle. When Officer Goodwin asked defendant for his

driver's license and proof of insurance, defendant responded that he did not have a license and

that his insurance was in the glove box in his car. Officer Goodwin then handcuffed defendant

and started to advise him his Miranda rights, but could not remember all of them, so he handed

defendant over to Officer Turner and retrieved his "FOP" calendar book containing a printed

version of the Miranda warnings so he could complete the admonitions.

¶4 Officer Goodwin asked defendant why he got out of his car and approached the officers,

and defendant responded that he was "dirty" and had "about 12 bags of work in [his] center

console," which Officer Goodwin understood to mean some type of narcotics. Officer Goodwin

then approached defendant's car and observed a box of Mike and Ike candy on the center console

with plastic objects sticking out of it. As he entered the car to get the insurance information out

of the glove box, Officer Goodwin saw a "white rock-like substance" inside the plastic in the

candy box, which, upon further examination, was shown to be 12 plastic bags containing

suspected crack cocaine. Officer Goodwin recovered and inventoried the bags under inventory

No. 12512306.

¶5 The parties then stipulated that, if called, Cathy Regan would testify that she was a

forensic chemist at the Illinois State Police crime lab and received inventory No. 12512306,

which contained 15 plastic bags of a rock-like substance. She would further testify that 8 of the

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15 bags tested positive for cocaine and had an actual weight of 1.2 grams, and that the total

estimated weight of all the items was 2.3 grams.

¶6 Officer Turner was then called by the defense. He testified that he was on patrol with

Officer Goodwin in the morning hours of January 12, 2012, when they stopped defendant, who

was driving a red Saturn in the area of 435 East 111th Street. He stayed by the side of the patrol

car while defendant and Officer Goodwin had a brief conversation, but he could not hear what

they were saying. After the conversation, Officer Turner watched as Officer Goodwin

handcuffed defendant, then walked to the red Saturn and recovered the narcotics.

¶7 The trial court concluded that both of the officers had testified credibly, and it believed

that defendant had made the statement that he was "dirty" and had "12 bags of work."

Accordingly, the court found defendant guilty of possession of a controlled substance.

¶8 Defendant, through counsel, subsequently filed a motion for a new trial and an amended

motion contending that the testimony of the two officers was contradictory. The court denied the

motions and proceeded to sentencing, where arguments were presented in aggravation and

mitigation.

¶9 The court then advised defendant of his right to allocution, and specifically asked him if

he wished to speak to the court. This colloquy followed:

"DEFENDANT: Yes, sir. Your Honor, I would like to file a verbal motion for

ineffective assistance of counsel, verbal motion, because I don't have assets [sic] to

library.

THE COURT: All motions are required to be in writing, sir.

DEFENDANT: I didn't know that Your Honor. They took away the law library.

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THE COURT: This lawyer here did a fine job for you during trial. If you want to

file a motion, I will take a date and put it in writing if you want to do that. It's not up to

me. I am giving you [the] right for elocution [sic] prior to sentence. [Defense counsel]

has been anything but ineffective. However, I can't preclude you from filing the motion.

You can do that.

DEFENSE COUNSEL: You can have that stamped by the Court.

DEFENDANT: You can sentence me, Your Honor.

THE COURT: Are you withdrawing that motion?

DEFENDANT: I have to then. I don't have no way --

THE COURT: You don't have to withdraw anything. You can file anything you

want, but you have to file it properly like anybody else. Do you understand that?

DEFENDANT: Yes, I do, sir.

THE COURT: How do you want to proceed today?

DEFENDANT: You can go ahead, Your Honor, proceed. I will withdraw.

THE COURT: You withdraw that motion then?

DEFENDANT: Yes."

Defendant then voiced his challenge to the evidence presented by the State and the search area

over which he had no control. After weighing the relevant factors in aggravation and mitigation,

the court sentenced defendant to a term of 2 1/2 years' imprisonment.

¶ 10 In this appeal, defendant does not contest the sufficiency of the evidence to sustain his

conviction or the sentence imposed by the court. He solely contends that the trial court erred in

failing to conduct a preliminary inquiry into his claim of ineffective assistance of counsel, as

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required under Krankel,

. He thus requests that his cause be remanded for

the purpose of conducting such an inquiry.

¶ 11 Under Krankel, and its progeny, where defendant makes a pro se posttrial allegation of

ineffective assistance of counsel, the trial court should conduct an adequate inquiry into the

factual basis for the claim. People v. Moore,

(2003). To invoke this rule,

defendant must make some allegation of ineffective assistance of counsel for the court to

consider and provide some factual specificity of the reason for the allegation. People v.

Cunningham,

(2007). The pleading requirements for raising a pro se

claim of ineffectiveness of counsel are somewhat relaxed, but defendant must still satisfy

minimum requirements to trigger a Krankel inquiry by the trial court. People v. Bobo,

(2007). Mere awareness by a trial court that defendant has complained of

counsel's representation imposes no duty on the trial court to sua sponte investigate defendant's

complaint (Cunningham,

); however, when defendant presents a pro se

claim of ineffective assistance, the trial court should first examine the factual basis of defendant's

claim (Moore,

). We review defendant's claim de novo. People v. Taylor,

(2010).

¶ 12 Defendant contends that he brought his claim of ineffective assistance of trial counsel to

the trial court's attention during the sentencing phase after he was advised of his right of

allocution. At that time, defendant stated that he wished to make a verbal motion claiming

ineffective assistance of counsel. The court, rather than inquiring into the basis of his claim,

instead told defendant that he would have to file a written motion and that he would be given

time to do so. The defendant advised the court that he did not have access to the library and the

court again told defendant, "[A]ll motions are required to be in writing," prompting the defendant

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to again state he "didn't know that Your Honor. They took away the law library." The court

again told defendant, "[I]f you want to file a motion, I will take a date and put it in writing if you

want to do that. *** I can't preclude you from filing the motion." When defendant relented, the

court asked if he was withdrawing the motion and defendant stated, "I have to then, I don't have

no way—." After further colloquy, defendant stated he would withdraw his motion and the court

proceeded to sentencing.

¶ 13 Initially, we note that the trial court erred in informing defendant that he was required to

submit his claim of ineffective assistance in writing. In People v. Patrick,

,

our supreme court stated that a defendant's pro se ineffective assistance of counsel motion may

be oral so long as it brings his claim to the trial court's attention. Here, defendant's oral

statement during allocution was sufficient to bring to the trial court's attention that

defendant was attempting to raise an ineffective assistance claim. The colloquy that followed,

however, focused on the necessity of filing a written motion rather than on the basis for the

claim, thereby failing to accomplish the very purpose a Krankel inquiry.

¶ 14 The State contends that the trial court conducted an adequate Krankel hearing when it

stated that counsel's performance was "anything but ineffective." The State cites People v. Short,

, for the proposition that the trial court can base its evaluation of

defendant's allegations on its knowledge of defense counsel's performance at trial. The ruling in

Short, however, is not applicable because there the defendant specifically raised a challenge to

counsel's performance at trial (id. ¶ 60), which the court had observed, thus allowing it to make a

determination of counsel's performance. Here, although defendant brought to the attention of the

court the possibility of an ineffective assistance claim, defendant was not given the opportunity

to tell the court what it was he was complaining about because he was cut short by the court's

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repeated comments that he had to put the complaint in writing. Because of the failure to conduct

an inquiry into the basis of the alleged claim, there is no way of knowing whether defendant's

complaint dealt with alleged ineffectiveness that occurred pretrial, during trial, posttrial or during

sentencing. Patrick,

. Thus, had the court simply asked the nature of

the alleged ineffectiveness, the trial court would have been in a position to determine whether

further inquiry or the appointment of counsel was required. People v. Moore,

, 77-

78 (2003) (“when a defendant presents a pro se posttrial claim of ineffective assistance of

counsel, the trial court should first examine the factual basis of the defendant’s claim"). Clearly,

the exchange between the court and defendant was not the type of preliminary inquiry required

by Krankel into the underlying basis, if any, for defendant's posttrial claim.

.

¶ 15 The State also argues that defendant waived this issue because he voluntarily withdrew

his motion after the court advised that it would continue the matter for defendant to file his

motion, and, as such, he is precluded from raising this issue on appeal. Under the doctrine of

invited error, the State further argues that defendant may not proceed in one manner at trial and

then contend on appeal that the course of action was erroneous. People v. Carter,

(2003). We cannot say that defendant's withdrawal of his motion in this case comports with

the notion that it was made voluntarily or that he invited error. Even a casual reading of the

record shows the court erroneously informed defendant that he was required to file a written

motion. In response, defendant advised the court that he could not put the claim in writing and

only "withdrew" his motion when the court again emphasized that a written pleading was

required. We have no doubt the trial court effectively conveyed to defendant that his motion

must be written and there is equally no doubt defendant believed he could not do so. We cannot

find waiver where a defendant acquiesces to an erroneous filing requirement insisted upon by the

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court. Under these facts, we find that the trial court erred in failing to conduct a preliminary

inquiry into the factual basis for defendant's oral claim of ineffective assistance of counsel raised

during the sentencing phase (Cunningham,

), and we remand the cause for

the limited purpose of allowing the trial court to conduct the required preliminary investigation

(Moore,

).

¶ 16 Remanded, with directions.

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