FILED May 6, 2019 NO. 4-18-0214 Carla Bender 4th District Appellate IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Macon County TORRE L. WILSON, ) No. 14CF856 Defendant-Appellant. ) ) Honorable ) Thomas E. Griffith Jr., ) Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court, with opinion. Presiding Justice Holder White and Justice Turner concurred in the judgment and opinion.

OPINION

¶1 In January 2015, a jury found defendant, Torre L. Wilson, guilty of aggravated

domestic battery (720 ILCS 5/12-3.3(a) (West 2012)) and resisting a peace officer (720 ILCS

5/31-1 (West 2012)). In March 2015, the trial court sentenced defendant, respectively, to 6 years’

imprisonment and 30 days’ incarceration. In April 2015, defendant, through counsel, filed a

timely motion to reconsider his sentence. In May 2015, defendant filed a pro se posttrial motion

for a reduction of his sentence, alleging he was provided ineffective assistance by his trial

counsel. At a July 2015 hearing, the court (1) dismissed defendant’s pro se motion for a

reduction of his sentence, concluding it was untimely, and (2) denied defendant’s motion to reconsider his sentence, concluding the sentence imposed was appropriate. The court did not

conduct an inquiry into defendant’s complaints about his counsel’s performance.

¶2 Defendant appealed, arguing this court should (1) remand the matter because the

trial court failed to conduct an inquiry into his pro se posttrial claim of ineffective assistance of

counsel, (2) reverse his conviction because the State invaded the purview of the jury by

improperly defining great bodily harm during its closing argument and telling the jury it could

not determine what constitutes great bodily harm, (3) vacate fines improperly imposed by the

circuit clerk, (4) reduce the circuit clerk fee to comport with its statutory limitations, (5) apply

his $95 per diem credit to the properly assessed fines, and (6) refund or apply to other

outstanding court costs any bond money used to pay for those assessments vacated or reduced by

this court. In October 2017, we agreed with defendant’s first argument and remanded the matter

for the trial court to conduct an inquiry into defendant’s pro se posttrial claim of ineffective

assistance of counsel in accordance with People v. Krankel,

,

(1984), and its progeny. People v. Wilson,

, ¶ 4. We declined to

reach defendant’s other claims, noting the result from the proceedings on remand could render

those claims moot. Id. ¶ 29. We also noted defendant could raise any issues with the assessments

imposed and the credit received on remand. Id.

¶3 In February 2017, the trial court held a hearing, purportedly pursuant to this

court’s remand. Following that hearing, the court ruled defendant failed to show he received

ineffective assistance from his trial counsel.

¶4 Defendant appeals, arguing this court should (1) reverse his conviction because

the State invaded the purview of the jury by improperly defining great bodily harm during its

-2- closing argument and telling the jury it could not determine what constitutes great bodily harm;

(2) remand the matter to a different trial judge for (a) an evidentiary hearing with new counsel on

his claim of ineffective assistance of counsel because he established a possible neglect of his

case or (b) a new inquiry into his pro se posttrial claim of ineffective assistance of counsel and

the factual bases for all of his complaints about his counsel’s performance; and (3) apply his $95

per diem credit to the properly assessed fines.

¶5 We reverse the trial court’s judgment following our prior remand and remand the

matter with directions for the trial court to appoint defendant new counsel, if it has not already

done so, and then allow appointed counsel the opportunity to investigate defendant’s claim of

ineffective assistance of counsel and take whatever action appointed counsel deems appropriate.

We again decline to reach defendant’s other claims but note defendant can raise his claim

concerning the application of his per diem credit with the court on remand. We retain

jurisdiction.

¶6 I. BACKGROUND

¶7 The background concerning the charges, the jury trial, the sentencing hearing, the

posttrial motions, and the hearing on the posttrial motions is set forth in our previous order. See

id. ¶¶ 6-23. The following proceedings occurred after the matter was remanded for the trial court

to conduct an inquiry into defendant’s pro se posttrial claim of ineffective assistance of counsel.

See id. ¶ 4.

¶8 In December 2017, the trial court held a status hearing. An attorney from the

public defender’s office—not defendant’s trial counsel—appeared on defendant’s behalf.

Defendant’s appellate counsel avers she spoke with the attorney that appeared on defendant’s

-3- behalf and learned he appeared with defendant because defendant’s trial counsel had retired from

the public defender’s office. The same attorney also appears with defendant at a later “pre-

inquiry hearing.” The record on appeal does not contain an express appointment for the attorney

to represent defendant in the proceedings on remand. For the purposes of this decision, we will

refer to this attorney as “defendant’s counsel.”

¶9 During the status hearing, the trial court asked defendant’s counsel if he wanted

the matter to be set for a “pre-Krankel hearing” and if he would need defendant’s trial counsel to

testify. Defendant’s counsel responded:

“I think I would need [defendant’s trial counsel]. I would ask to set

it out a couple of months. We’ll get things ready, and I will call or

send a letter out to [defendant] letting him know what’s going on

and what we’re going to do and bring him back for it.”

Based on counsel’s comments, the court set the matter for a “pre-Krankel inquiry hearing.” The

court also indicated it would leave it to defendant’s counsel to writ defendant’s trial counsel for

the hearing. Defendant’s counsel agreed, commenting the State could not “take a position in this

anyway.” The court agreed with this comment.

¶ 10 In March 2018, the trial court held a “pre-inquiry hearing regarding defendant’s

allegations of ineffective assistance of counsel set forth in *** defendant’s pro se motion for

reduction of sentence.” Defendant, defendant’s counsel, defendant’s trial counsel, and the State

appeared. The State did not, however, participate in the hearing.

¶ 11 When discussing the process of the hearing, the trial court indicated it would state

each complaint in defendant’s pro se motion, allow defendant the opportunity to elaborate on the

-4- complaint, and then allow defendant’s trial counsel the opportunity to respond to the complaint.

The court further indicated it would allow defendant’s counsel “to add anything you wanted to

add” because “you’re counsel for [defendant].”

¶ 12 The trial court stated each complaint in defendant’s pro se motion, allowed

defendant the opportunity to elaborate on the complaint, and then allowed defendant’s trial

counsel the opportunity to respond. After this process, the court gave defendant the opportunity

to add any additional comments about his counsel’s performance. Defendant raised several

additional complaints. The court and defendant’s trial counsel addressed some but not all of

those complaints. The court then allowed defendant’s counsel the opportunity to add any

additional comments on behalf of defendant. Defendant’s counsel made a brief argument,

requesting the court to give defendant a new trial based on a combination of all of defendant’s

complaints. In so arguing, defendant’s counsel noted, with respect to the defendant’s complaint

about his trial counsel not using certain evidence for impeachment purposes, that he was unsure

whether trial counsel had in fact used the evidence for impeachment purposes. However,

defendant’s counsel said he could find out if he had the opportunity to look at the trial

transcripts.

¶ 13 Following the argument by defendant’s counsel, the trial court issued an oral

pronouncement of its decision. The court stated it considered the statements of defendant and his

trial counsel as well as the argument of defendant’s counsel. The court found “the allegations do

not amount to ineffective assistance of counsel.” The court also noted it believed it corrected any

issues with the assessments imposed and credit received.

¶ 14 This appeal followed.

-5- ¶ 15 II. ANALYSIS

¶ 16 On appeal, defendant argues this court should (1) reverse his conviction because

the State invaded the purview of the jury by improperly defining great bodily harm during its

closing argument and telling the jury it could not determine what constitutes great bodily harm;

(2) remand the matter to a different trial judge for (a) an evidentiary hearing with new counsel on

his claim of ineffective assistance of counsel because he established a possible neglect of his

case or (b) a new inquiry into his pro se posttrial claim of ineffective assistance of counsel and

the factual bases for all of his complaints about his counsel’s performance; and (3) apply his $95

per diem credit to the properly assessed fines.

¶ 17 In response, the State argues “it does not appear” this court has jurisdiction to

address defendant’s first and third arguments because the prior order did not explicitly retain

jurisdiction or vacate the trial court’s denial of defendant’s posttrial motion to reconsider his

sentence. Even if jurisdiction does exist, the State maintains the arguments are forfeited and not

reviewable under the plain-error doctrine. As to defendant’s second argument, the State agrees

the matter should be remanded to the trial court but asserts (1) it should be remanded to the same

trial judge with directions to appoint new counsel, if new counsel had not in fact already been

appointed, and (2) the trial court should allow appointed counsel the opportunity to investigate

defendant’s claim of ineffective assistance and take whatever action counsel deems appropriate

thereafter.

¶ 18 Under Krankel and its progeny, when a defendant raises a pro se posttrial claim of

ineffective assistance of counsel, the trial court must conduct an inquiry into the factual basis of

-6- the defendant’s claim to determine whether new counsel should be appointed to assist the

defendant. See Krankel,

; People v. Johnson,

,

(1994); People v. Moore,

,

(2003). This

inquiry occurs during a “Krankel hearing.” People v. Roddis,

.

“The only issue to be decided at a Krankel hearing is whether new counsel should be appointed.”

(Emphasis in original.)

¶ 19 When conducting an inquiry into the factual basis of a defendant’s pro se claim of

ineffective assistance of counsel, “some interchange between the trial court and trial counsel

regarding the facts and circumstances surrounding the allegedly ineffective representation is

permissible and usually necessary in assessing what further action, if any, is warranted on a

defendant’s claim.” Moore,

. The trial court may (1) ask trial counsel to “answer

questions and explain the facts and circumstances” relating to the claim, (2) briefly discuss the

claim with the defendant, or (3) evaluate the claim based on “its knowledge of [trial] counsel’s

performance at trial” as well as “the insufficiency of the defendant’s allegations on their face.”

. The court may not seek input from the State during its inquiry. Roddis,

.

¶ 20 Where a trial court’s inquiry discloses “possible neglect of the case,” it should

appoint new counsel to independently investigate and represent the defendant at a separate

hearing. Moore,

; see also Roddis,

(“[T]he

purpose of appointing counsel pursuant to Krankel is for new counsel to investigate the

defendant’s pro se claims of ineffective assistance of trial counsel—not to pursue other claims of

error, like those commonly raised in posttrial motions.”). If, on the other hand, the court

-7- determines the claim “lacks merit or pertains only to matters of trial strategy,” the court may

deny the claim without appointing new counsel. Moore,

; see also Roddis,

(discussing the primary ways a trial court may reach such a

conclusion).

¶ 21 In this case, we remanded the matter for the trial court to conduct “a preliminary

Krankel inquiry.” Wilson,

, ¶ 29. That is, we remanded for the trial

court to conduct “an inquiry into the factual basis of the defendant’s claim to determine whether

new counsel should be appointed to assist the defendant.” Id. ¶ 27. On remand, the trial court

conducted a “pre-inquiry hearing,” purportedly pursuant to this court’s order. The court

proceeded as if it were conducting a Krankel hearing, stating each complaint in defendant’s

pro se motion, allowing defendant the opportunity to elaborate on each complaint, and allowing

defendant’s trial counsel the opportunity to respond to each complaint. See Moore,

. After conducting its inquiry, the court, rather than determining whether new counsel

should be appointed, ruled on the merits of defendant’s pro se claim of ineffective assistance.

Such a ruling during a Krankel hearing is, by itself, reversible error. Roddis,

(“[A] trial court commits reversible error when it conducts a Krankel hearing and

concludes—on the merits—that there was no ineffective assistance ***.”). Additionally, the

court failed to inquire into the factual basis of all of defendant’s complaints about his trial

counsel’s performance. Moore,

. We accept the State’s concession and reverse

the trial court’s judgment following our remand.

¶ 22 In reaching this decision, we recognize defendant received some degree of

representation by new counsel at the hearing on remand but find that representation does not

-8- change the result. Again, it is unclear whether the trial court in fact appointed new counsel to

represent defendant. If the court had appointed new counsel, “no reason existed for the court to

conduct any further hearings pursuant to Krankel; instead, the case should have proceeded based

upon whatever action defendant’s new counsel might choose to take regarding defendant’s

ineffective assistance claims.” Roddis,

. We cannot construe the

hearing on remand as an evidentiary hearing—the State was not given an opportunity to

comment or argue its position. Id. ¶ 90 (“The State, just like a defendant, always suffers the risk

of prejudice when a court adjudicates the merits of an issue without permitting the State to argue

its position.”). Moreover, counsel’s performance—his limited participation and cursory argument

without any review of the trial transcripts—cannot be considered adequate representation at an

evidentiary hearing.

¶ 23 Because this is the second time this court has addressed this issue, we remand

with directions for the trial court to appoint defendant new counsel, if it has not already done so,

and then allow appointed counsel the opportunity to investigate defendant’s claim of ineffective

assistance of counsel and take whatever action appointed counsel deems appropriate. We

emphasize the need on remand for prompt action by the court, appointed counsel, and, if

necessary, the State, given the sentence rendered and the time it has taken to pursue a direct

appeal.

¶ 24 Defendant requests we order the matter be presented to a new trial judge on

remand because the prior trial judge exhibited personal bias against him. Defendant’s allegation

of judicial bias is primarily based on the trial judge’s rulings on remand. As our supreme court

has stated, “[a]llegedly erroneous findings and rulings by the trial court are insufficient reasons

-9- to believe that the court has a personal bias for or against a litigant.” Eychaner v. Gross,

,

(2002). After reviewing the discussions involving

defendant, defendant’s counsel, defendant’s trial counsel, and the trial judge, we find no

evidence to suggest the trial judge exhibited a personal bias against defendant. We reject

defendant’s request to order the matter to be presented to a different trial judge on remand.

¶ 25 Because we are remanding the matter for further proceedings on defendant’s

pro se claim of ineffective assistance of trial counsel, we again decline to reach the merits of

defendant’s other claims. See People v. Bell,

(declining to

address the defendant’s other claims where it was necessary to remand for trial court to conduct a

Krankel hearing). However, we will address the State’s jurisdictional argument with respect to

those claims as any order by this court would implicate a finding concerning the State’s

argument. Again, the State suggests this court lacks jurisdiction to address defendant’s other

claims because our prior order did not explicitly retain jurisdiction or vacate the trial court’s

denial of defendant’s posttrial motion to reconsider his sentence. While our prior order did not

explicitly indicate we were retaining jurisdiction, the substance of the order—that we were

declining to address defendant’s other claims on appeal because the result from a preliminary

Krankel inquiry on remand could render those claims moot—makes abundantly clear we were

retaining jurisdiction. See Wilson,

, ¶ 29. The State’s cited

authority, People v. Garrett,

,

(1990), does not support its position

that a court loses jurisdiction by failing to explicitly retain jurisdiction. Instead, Garrett holds this

court is empowered under Illinois Supreme Court Rule 615(b) (eff. Jan. 1, 1967) to remand a

cause for a hearing on a particular matter while retaining jurisdiction. Garrett,

.

- 10 - ¶ 26 Nevertheless, to avoid any future confusion or uncertainty we now make clear we

are remanding for further proceedings on defendant’s pro se claim of ineffective assistance of

counsel while retaining jurisdiction. In the event defendant is not satisfied with the outcome of

the proceedings on remand, he may again appeal and raise any supplementary claims relating to

the remand proceedings, and the State may have an opportunity to respond to those claims.

Defendant and the State should also address what impact, if any, the proceedings on remand had

on defendant’s other pending claims. Once all claims have been briefed, we will announce our

judgment on all pending claims.

¶ 27 As a final matter, we note it appears the trial court resolved on remand most of

defendant’s claims concerning the assessments imposed and credit received. Defendant still

suggests, however, the court failed to apply his $95 per diem credit to the properly assessed

fines. While we are not addressing that claim, we again note defendant can raise the issue with

the court on remand.

¶ 28 III. CONCLUSION

¶ 29 We reverse and remand with directions for the trial court to appoint defendant

new counsel, if it has not already done so, and then allow appointed counsel the opportunity to

investigate defendant’s claim of ineffective assistance of counsel and take whatever action

appointed counsel deems appropriate thereafter.

¶ 30 Reversed and remanded with directions.

- 11 -