FILED March 31, 2016 Carla Bender NO. 4-14-0270 4th District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Macon County MATTHEW L. MOURNING, ) No. 11CF166 Defendant-Appellant. ) ) Honorable ) Timothy J. Steadman, ) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Turner and Appleton concurred in the judgment and opinion.

OPINION

¶1 After a December 2013 trial, a jury found defendant, Matthew L. Mourning,

guilty of two counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1 (West

2010)). In January 2014, defendant pro se filed a posttrial motion claiming that his privately re-

tained counsel had provided him ineffective assistance. The trial court denied defendant's pro se

motion and later sentenced him to consecutive terms of eight and nine years in prison. Defend-

ant appeals, arguing, inter alia, that the court failed to conduct an adequate Krankel hearing.

People V. Krankel, 102 Ill. 2d. 181, 464 N.E.2d. 1045 (1984). We agree and remand for a proper

Krankel hearing.

¶2 I. BACKGROUND

¶3 In the interest of brevity, we set out only those facts necessary to our decision.

¶4 In February 2011, the State charged defendant with two counts of predatory crim- inal sexual assault of a child (720 ILCS 5/12-14.1 (West 2010)). The court initially appointed

the public defender to represent defendant, but defendant later hired private counsel, Glenn

Fuller. After a December 2013 trial, the jury found defendant guilty of both counts.

¶5 In January 2014, prior to sentencing, defendant pro se filed a letter in the trial

court, stating that "I want to appeal [my conviction] and am requesting a public defender." The

letter stated further that defendant had "fired" Fuller because counsel (1) "never said anything

about a possible bench trial"; (2) failed to present certain evidence to the jury; and (3) failed to

impeach a witness. That same day, defense counsel filed a motion for a new trial.

¶6 At a hearing held later that month, the trial court and parties addressed defendant's

letter. The following exchange occurred:

"[THE COURT]: Mr. Fuller, what's your understanding re-

garding your client's representation by counsel?

[MR. FULLER]: Well, I—clearly he's indicated that he

wants to have a new attorney. And I think the question to be de-

cided at this point is in what stage do we address that motion. If he

has complaints, then maybe he would have complaints about the

manner in which I have addressed the Motion for a New Trial. So

it seems to me, I think I'm being consistent with [the State], that

we, perhaps, need to make an inquiry at this point and make a de-

cision about that.

[THE COURT]: All right. [Defendant], your letter does

say you, quote, fired, your attorney ***.

[DEFENDANT]: Yes.

-2- [THE COURT]: Have you hired different private counsel?

[DEFENDANT]: No.

[THE COURT]: Are you asking [for] time to do so?

[DEFENDANT]: Yes.

[THE COURT]: How much time are you requesting to see

if you can retain a new private attorney?

[DEFENDANT]: That I don't know, maybe a week or so.

[THE COURT]: Any problem with that, [State]?

[THE STATE]: No, Your Honor.

[MR. FULLER]: May I be excused for just a moment?

[THE COURT]: Sure.

[Pause in proceedings.]

[MR. FULLER]: If it please the Court, I—the defendant is

without any funds or resources. This motion was initiated in part

or in some way it was a participation by—it's your aunt, isn't it, is

she not?

***

[DEFENDANT]: No. She's my dad's girlfriend.

[MR. FULLER]: Okay. She's a person who has shown in-

terest in this case. She has been with my client at all times when I

have met with him, and she's the one who has furnished money for

his defense up until this point. It was my impression prior to today

that they were not going to have the money to hire a new attorney.

-3- And I think that the only solution that they have at this point is to

ask for the public defender.

[THE COURT]: All right. Well, let's back up a little bit

here. The Court's reviewed this filing. The Court's presided virtu-

ally through the entire case, pretrial motions, jury trial, et cetera.

There's been no suggestion of any possible neglect on the part of

counsel. There's been no suggestion of anything but, perhaps, de-

fendant disagreeing with trial strategy, so there's no basis under the

case law, specifically, [People v. Moore,

,

(2003)], to say that for some reason Mr. Fuller should not con-

tinue as counsel for this man. That means that, as I understand the

law, Mr. Fuller stays as his attorney until or unless he requests a

different private attorney or he decides to represent himself.

***

There are policy considerations here. Anytime someone

hires a private attorney and they're dissatisfied with the result no

matter how well the attorney performed during the course of the

trial or pretrial proceedings. Then if this were the proper course of

action after things turn out differently than the defendant expected,

then the Court would be under this theory free to appoint publical-

ly funded counsel that would mean that counsel would have to get

transcripts of all proceedings at public cost.

The cost of the attorney would be incurred by the public.

-4- That's simply not the way it is. You just can't snap your fingers

and get a different lawyer, and have the Court appoint a lawyer at

public expense, it doesn't work that way. So we'll be happy to al-

low further time to explore the possibilities, but right now the pos-

sibilities appear to be three: Stay with Mr. Fuller, get a new private

lawyer, or represent yourself."

The court continued the matter for one week to allow defendant to secure new private counsel.

At the next hearing, in February 2014, defendant stated that he wished to retain Fuller.

¶7 After a March 2014 sentencing hearing, the trial court sentenced defendant to

consecutive prison terms of eight and nine years.

¶8 This appeal followed.

¶9 II. ANALYSIS

¶ 10 Defendant argues, in pertinent part, that the trial court failed to conduct an ade-

quate Krankel hearing. We agree.

¶ 11 A. Krankel Hearings in General

¶ 12 Pursuant to People v. Krankel,

,

(1984), and its

progeny, when a defendant raises a pro se posttrial claim of ineffective assistance of counsel, the

following procedure should be followed to determine whether new counsel should be appointed:

" ' [W]hen a defendant presents a pro se posttrial claim of ineffec-

tive assistance of counsel, the trial court should first examine the

factual basis of the defendant's claim. If the trial court determines

that the claim lacks merit or pertains only to matters of trial strate-

gy, then the court need not appoint new counsel and may deny the

-5- pro se motion. However, if the allegations show possible neglect

of the case, new counsel should be appointed. ' " People v. Jolly,

,

(quoting Moore,

,

).

¶ 13 To determine whether counsel should be appointed, "some interchange between

the trial court and trial counsel regarding the facts and circumstances surrounding the allegedly

ineffective representation is permissible and usually necessary." Moore,

,

. As part of that interchange, the trial court may question defense counsel and the

defendant about the facts and circumstances surrounding the defendant's allegations.

How-

ever, an interchange with counsel or the defendant is not always necessary, as "the trial court can

base its evaluation *** on its knowledge of defense counsel's performance at trial and the insuf-

ficiency of the defendant's allegations on their face."

,

; see People v.

Towns,

,

(1996) (trial court's decision not to appoint counsel up-

held on appeal even though the court engaged in no interchange with defendant or counsel about

defendant's allegations). In every case, the court must "conduct some type of inquiry into the

underlying factual basis, if any, of a defendant's pro se posttrial claim of ineffective assistance of

counsel." Moore,

,

.

¶ 14 B. Does Krankel Apply When a Defendant Is Represented by Private Counsel?

¶ 15 The State argues that because defendant was represented by private instead of ap-

pointed counsel, the Krankel procedure does not apply, and the trial court was therefore not re-

quired to conduct any inquiry into defendant's pro se posttrial claims of ineffective assistance.

We disagree and conclude that under the facts of this case, the court was required to conduct a

preliminary Krankel inquiry to determine whether new counsel should be appointed.

-6- ¶ 16 The State relies on People v. Pecoraro,

,

(1991), and

People v. Shaw,

,

(2004), in support of its argument that

Krankel does not apply when a defendant has retained private counsel. We find those cases dis-

tinguishable. In Pecoraro,

,

, the defendant was found guilty

of murder while represented by private counsel. The defendant pro se filed a posttrial motion

alleging ineffective assistance of counsel. The trial court denied the defendant's claims of inef-

fective assistance of counsel without appointing new counsel to argue those claims. The su-

preme court affirmed, explaining as follows:

"It was not within the trial court's rubric of authority

to advise or exercise any influence or control over the se-

lection of counsel by defendant, who was able to, and did,

choose counsel on his own accord. [Citation.] Moreover,

the trial judge could not force defendant to retain counsel

other than that chosen by defendant. [Citation.] Defendant

and his counsel were the only parties who could have al-

tered their attorney-client relationship. Defendant could

have retained other counsel to represent him prior to the

hearing of his post-trial motions."

Essential to the supreme court's decision was the fact that the defendant never informed the court

that he (1) wished to be represented by new counsel and (2) now needed the services of court-

appointed counsel.

¶ 17 In Shaw,

,

, the defendant retained

private counsel before pleading guilty to criminal sexual assault. After sentencing, the defendant

-7- pro se sent a letter to the court arguing that defense counsel misadvised him as to the sentence he

was likely to receive. At a subsequent hearing on the motion to reconsider the sentence filed by

defense counsel, nobody mentioned the letter sent by the defendant. On appeal, this court af-

firmed and denied the defendant's claim that the trial court should have held an initial inquiry

under Krankel to determine whether to appoint new counsel for the defendant.

,

. We noted that, like the defendant in Pecoraro, the Shaw defendant could

have ended his relationship with private counsel and secured new counsel if he so chose.

,

. If the defendant was unable to afford a new private attorney, he should

have informed the court and requested appointed counsel. Instead, the defendant never informed

the court that he desired new counsel. Under those circumstances, the court was not obligated to

inquire about whether to appoint new counsel.

¶ 18 This case is distinguishable from Pecoraro and Shaw. Here, defendant, in his

written pro se motion, requested new counsel. In addition, at the hearing on defendant's motion,

Fuller informed the trial court that defendant desired new counsel. After the court granted de-

fendant a continuance to secure new private counsel, Fuller informed the court that defendant did

not have the resources to hire new counsel and, instead, needed appointed counsel. Therefore,

unlike Pecoraro and Shaw, defendant requested new counsel and informed the court that he was

financially incapable of hiring a new attorney. Under those circumstances, we conclude that the

court was required to conduct a preliminary inquiry under Krankel to determine whether to ap-

point new counsel to represent defendant.

¶ 19 Our decision comports with other Illinois cases that have distinguished Pecoraro

and concluded that Krankel applies even when a defendant is represented by private counsel.

See, e.g., People v. Willis,

,

; People v. Johnson, 227

-8- Ill. App. 3d 800,

(1992). As the appellate court stated in Johnson, "we do not

believe Pecoraro stands for the proposition that a trial court is free to automatically deny a pro

se request for new counsel simply because the defense counsel who was allegedly ineffective

was privately retained." Johnson,

,

. As in this case,

and unlike Pecoraro, the defendants in Willis and Johnson explicitly requested new counsel after

making their pro se claims of ineffective assistance of counsel.

¶ 20 This court can find no reason why a defendant represented by private counsel

should be treated any differently than a defendant represented by appointed counsel for purposes

of Krankel, especially when, as here, the court has been informed that the defendant no longer

has the funds to hire private counsel and will need the services of the public defender. The "con-

flict of interest that trial counsel would experience if trial counsel had to justify his or her actions

contrary to defendant's position" (Moore,

,

) exists to the same

extent regardless of whether defendant was represented by private or appointed counsel. There-

fore, we hold that Krankel applies when a defendant represented by private counsel makes a pro

se posttrial claim of ineffective assistance of counsel and informs the court that he both (1) de-

sires new counsel and (2) cannot afford new private counsel. Under those circumstances, a court

should conduct an initial inquiry to determine whether new counsel should be appointed.

¶ 21 C. Whether the Trial Court in This Case Conducted a Sufficient Preliminary Inquiry Under Krankel

¶ 22 Having determined that Krankel applies to this case, we must now decide whether

the trial court conducted a sufficient initial inquiry under Krankel.

¶ 23 The trial court denied defendant's pro se claims of ineffective assistance of coun-

sel without conducting any interchange with defendant. The court found that defendant's claims

were meritless on their face because they involved matters of trial strategy. At a preliminary

-9- Krankel inquiry, a trial court may reject a defendant's claims based on the court's "knowledge of

defense counsel's performance at trial and the insufficiency of the defendant's allegations on their

face."

,

. However, in this case, defendant's claims were not suitable

for rejection on their face. In particular, the court should have inquired about defendant's claim

that Fuller did not inform him about his right to a bench trial. The court did not engage in any

questioning to uncover the underlying factual basis of that claim, if any exists. We also note that

defendant in his pro se posttrial motion also complained about (1) the evidence presented and (2)

the impeachment of a witness, neither of which prompted any questioning by the court. As a re-

sult, we conclude that the court's preliminary inquiry was insufficient. We therefore remand for

a new preliminary inquiry under Krankel.

¶ 24 III. CONCLUSION

¶ 25 For the foregoing reasons, we remand for a preliminary inquiry under Krankel to

determine whether new counsel should be appointed to argue defendant's pro se claims of inef-

fective assistance of counsel.

¶ 26 Remanded with directions.

- 10 -