NOTICE

NOTICE Decision filed 07/14/21. The This order was filed under text of this decision may be NO. 5-19-0129 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1).

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Alexander County. ) v. ) No. 18-CF-22 ) KEVIN L. BANKS, ) Honorable ) Jeffery B. Farris, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________

JUSTICE VAUGHAN delivered the judgment of the court. Justice Cates concurred in the judgment. Justice Wharton dissented.

ORDER

¶1 Held: Defendant’s ambiguous statements in a letter attached to his PSI and at his sentencing hearing were insufficient to trigger a Krankel hearing.

¶2 Defendant appeals his conviction for aggravated battery with a firearm. On appeal,

he contends his statements in a letter attached to his presentence investigation report (PSI)

and statements in allocution at his sentence hearing triggered the trial court’s responsibility

to conduct a preliminary inquiry into defendant’s alleged ineffective assistance of counsel

claim pursuant to People v. Krankel,

(1984). For the reasons that

follow, we affirm.

1 ¶3 BACKGROUND

¶4 Because the sole issue on appeal concerns defendant’s statements made after his

conviction, we provide only the facts necessary to resolve this appeal and a brief summary

of the evidence at trial.

¶5 Defendant was charged by information with aggravated battery with a firearm

alleging he knowingly discharged a firearm and caused injury to Jaida Brown (Ms. Brown)

in the early morning hours of March 24, 2018, at the residence of Kiara Jackson (Jackson)

in Cairo, Illinois. In defense, defendant claimed he was at his residence in Wilson City,

Missouri, at the time of the shooting.

¶6 At the arraignment and bond hearing, defendant testified that he gave his cellphone

to the Cairo Police Department, which subsequently lost the cellphone. Defense counsel

indicated that the phone was pivotal to his defense. The court set a hearing on the matter

for May 24, 2018, noting “[losing the phone is] a pretty big deal.” At the May 24 hearing,

a Cairo police officer confirmed that the police were unable to locate the phone.

¶7 On July 11, 2018, private counsel, Susan Burger, began representing defendant. She

filed a motion for sanctions listing three discovery violations. The motion first alleged that

defendant provided police with his phone that contained exculpatory evidence showing he

was not present at the location where shots were fired, but the police lost the phone. Second,

the motion alleged that the State searched Ms. Brown’s phone but no evidence from her

phone had been turned over to defendant, except messages that were sent while defendant

was out on bond. Third, the motion alleged that the State failed to obtain a search warrant

for the phone of Jackson, who was present at the crime scene, which would also contain 2 evidence helpful to the defense. Because the police’s loss of defendant’s phone was

attributable to the State and the State failed to disclose information regarding Ms. Brown’s

phone or obtain a warrant to search Jackson’s phone, defense counsel argued the State

deprived defendant of due process and requested dismissal of the charge.

¶8 At the hearing on defendant’s motion for sanctions, defendant testified that the State

seized a second phone that he possessed while out on bond. Defendant averred that the

information on the second phone would be helpful because he logged onto his Google

account, which should have retrieved any text messages and calls that were made on his

previous phone. The State called the Cairo chief of police, Leonard Harris, to testify. The

chief averred that in addition to physically looking for defendant’s first phone, he also

requested the phone service provider ping the phone, but the provider was unsuccessful in

locating the phone. After listening to the parties’ arguments, the court denied defendant’s

request to dismiss the charge. However, the court noted that it was willing to enter court

orders to retrieve the phone records and any information that defendant’s second phone

may provide. At the following pretrial hearing, the State informed the court that it received

the data from defendant’s second phone and provided the information to defense counsel.

¶9 During trial, Jeff Knauer (Knauer) of the Illinois State Police Digital Crimes Unit

testified for the State that he performed a physical extraction on defendant’s second phone.

The extraction obtained the entire contents of the memory of defendant’s second phone

and produced a report from that data which included Facebook Messenger entries, calendar

entries, call log entries, and cell tower locations. He averred that the text messages and call

3 logs are specific to the device itself, so the data on the report was only from defendant’s

second phone. The data from defendant’s first phone could not be retrieved.

¶ 10 The State also presented the two witnesses who were present at the time of the

incident, Ms. Brown and Jackson. Both testified that sometime after Ms. Brown and

Jackson entered Jackson’s residence, Ms. Brown was on the phone with defendant.

Defendant and Ms. Brown were arguing on the phone when defendant arrived at Jackson’s

residence. Once defendant was inside1 and Ms. Brown informed defendant that she would

not go outside with him, defendant pulled a gun out of his pocket. Ms. Brown and defendant

struggled over the gun. While Ms. Brown and defendant wrestled over the gun, a shot was

fired but Ms. Brown was not hit at that time. Eventually, the fighting stopped, and

defendant went outside through the front door of the residence. After defendant went

outside, a gunshot came through a window in the front of Jackson’s residence and struck

Ms. Brown. After several minutes, Jackson called 9-1-1. Other evidence presented at trial

established that a 9-1-1 call regarding the shooting was placed at 5:18 a.m.

¶ 11 Jackson also testified that while she was at the police station to give her statement,

defendant called her four or five times. She did not answer but Sheriff Tim Brown answered

and talked to defendant on her phone.

¶ 12 Defendant testified in his defense. He stated that he and Ms. Brown were in a

relationship and lived together in Wilson City, Missouri. He stated that on the night

1 While not pertinent to this appeal, we note that there were a few discrepancies between Ms. Brown’s and Jackson’s testimonies. Specifically, their testimonies differed regarding who opened the door for defendant to come inside Jackson’s residence and where Ms. Brown was located in the residence when defendant entered. 4 preceding the incident, he took Ms. Brown to Cairo under the impression that she was

going to a party at her aunt’s residence. Defendant averred that after no one appeared to be

at her aunt’s residence when he attempted to pick Ms. Brown up later, he went back to

Wilson City. Defendant testified that once he was back at his residence, he contacted Ms.

Brown and his sister through Facebook Messenger at 1:21 a.m. and 1:34 a.m., respectively.

Defendant stated he fell asleep around 2 a.m. until approximately 4:11 a.m. when Jackson

called him. Jackson continued to contact defendant several times, through his phone and

Facebook Messenger. Defendant testified that once he was awake, he called Ms. Brown

after noticing that Ms. Brown called and texted him. He informed Ms. Brown that he would

not come to Cairo. Defendant averred he last spoke to Ms. Brown around 5:02 a.m. and

again told her he was not coming to Cairo. On the phone call, defendant heard a

“commotion” in the background and the phone went dead. Defendant testified he then tried

to call Ms. Brown and Jackson to make sure everything was okay. He approximated that

he called Jackson 16 times and that Jackson answered briefly once. Eventually, Sheriff Tim

Brown answered Jackson’s phone. Defendant testified that no one ever told him where Ms.

Brown was, he did not know where Jackson lived, and he had never been to Jackson’s

house before.

¶ 13 After the defense rested its case, defense counsel renewed the motion for sanctions,

arguing the evidence showed that certain information from defendant’s first phone that

would aid in proving defendant’s alibi that he was not in Cairo the morning of the shooting,

was missing. After the parties made their arguments, the court allowed defense counsel to

confer with defendant. Defense counsel then informed the court that the defense would rely 5 on the call log and wished to withdraw the renewal of the motion for sanctions. The court

found defendant guilty.

¶ 14 Subsequently, defendant wrote a letter to the court, which was attached to his PSI.

The letter stated, in part:

“I pray that you find it in your heart to give some leaniance [sic] in my

sentencing because I have children and a [sic] ageing [sic] Mother who are

dependent on me for help.

I wish that certain things could have been done that I asked for during the

case (i.e. phone pinging) but my lawyer claims that they can’t do it. I am not

a professional in that area but I do know where I was at that time.

All that I ask is that you would at least consider that there is a possibility

that what I’m saying is true, during sentencing.”

¶ 15 At the sentencing hearing, the court acknowledged receipt of defendant’s letter and

confirmed it reviewed the letter. Defendant also made the following statement in

allocution:

“A person can’t help what another person says about them. They can only

defend themselves to the best of their ability. My only defense was, is that I

was at home when that crime was committed in a whole another state. I asked

for permission to have my phone pinged and stuff like that, and it came down

to a question of amount of money. I gave law enforcement the phone numbers

of my phone and Ms. Brown’s phone so they can show, if they pinged them,

the locations of those phones. None of that was ever done due—because of 6 money or whatever the reason was. We’re not here—you know, really here

to discuss that, but I’m just putting it out there that I tried to come up with

some type of defense to show that I was where I was when I told them where

I was at.

***

So, I mean, a man can only do so much in his defense, but at the end of

the day, in previous crimes I always pled guilty to because I done those

crimes. But I refuse to plead guilty to a crime that I did not commit. I don’t

care who says it. I have the right to stand here and say that I did not do it and

that is what I’m doing today. Thank you, Your Honor.”

¶ 16 The court sentenced defendant to 25 years’ imprisonment with a 3-year term of

mandatory supervised release. This appealed followed.

¶ 17 ANALYSIS

¶ 18 The only issue on appeal is whether the trial court erred in failing to conduct a

Krankel hearing based on defendant’s written statements in his letter which were attached

to the PSI and his statements provided at his sentencing hearing, regarding the cellphone

evidence. 2

¶ 19 When a defendant asserts a posttrial claim of ineffective assistance of counsel to the

court, the court must inquire into the claim to determine whether new counsel should be

2 We note that there is conflict among the appellate courts regarding whether Krankel applies to privately retained attorneys. See People v. Taylor,

(2010) (Burke, J., specially concurring) (explaining the conflict). However, we do not address this issue because neither party raises the issue on appeal and the resolution of this appeal does not require such. 7 appointed. People v. Krankel,

(1984); People v. Moore,

(2003). “A pro se defendant is not required to do any more than” bring a clear claim

of ineffectiveness to the “court’s attention,” which can be done orally or through a written

statement to the court. (Internal quotation marks omitted.) People v. Ayres,

. While providing the underlying factual basis of the claim is unnecessary to

sufficiently trigger a Krankel inquiry, the defendant “must clearly raise that claim with the

court.” People v. Bates,

, ¶ 15. If a defendant fails to present a clear claim

of ineffective assistance of counsel, the trial court’ s duty to conduct a preliminary Krankel

inquiry is not triggered. People v. Taylor,

(2010). We review whether the

defendant’s statements were sufficient to trigger a Krankel inquiry de novo. Moore,

.

¶ 20 Defendant contends that he made a clear posttrial pro se claim asserting ineffective

assistance of counsel, both orally and in writing. Citing to People v. Lobdell,

, he explains that although he did not explicitly use the phrase “ineffective

assistance of counsel,” his complaint of counsel’s failure to ping his cellphone was implicit

in his letter attached to the PSI and his statement in allocution. Defendant’s statements

were directed toward his counsel who he was paying to defend him. Defendant argues that

because he stated that counsel failed to “ping” his phone to show his location for monetary

reasons, in addition to the fact that his alibi defense depended on pinging his phone, he

presented a clear claim of ineffective assistance of counsel that warranted a Krankel

inquiry. We disagree.

8 ¶ 21 In Lobdell, defendant wrote a letter to the court before sentencing that stated police

officers violated his fourth and fifth amendment rights when arresting him, including some

detail of the violation, and that “ ‘why [my attorney] never mentioned this during trial I do

not know, that[’]s why I am mentioning it now your honor.’ ” Lobdell,

. On appeal, defendant complained, inter alia, that the trial court erred in

failing to conduct a Krankel hearing. Id. ¶ 32. The Third District reversed, determining that

defendant’s statement raised an issue not presented at trial and explained that he did not

understand counsel’s failure to do so. Id. ¶ 37. Although defendant did not state the phrase

“ineffective assistance of counsel,” it determined his statements clearly asserted such a

claim. Id. To require the express phrase “ ‘ineffective assistance of counsel,’ *** would

[elevate] form over substance.” Id.

¶ 22 While we agree with the legal principles expounded in Lobdell, we find the

statements in this case are more like those in People v. Jindra,

.

The defendant in Jindra filed a motion that stated: “ ‘I would like the judge to reconsider

this case. the [sic] key witness, Brissa Cuphbertson [sic], did not appear in court, nor was

her written statement submitted to the judge. The public defender was Mr. Travis Lutz.

This eye witness [sic] is crucial to this defense.’ ” Id. ¶ 5. The Second District found that

while defendant mentioned counsel, it was unclear whether defendant was, in fact,

complaining about counsel’s performance. Id. ¶ 19. It further noted that defendant’s

statements were subject to differing interpretations, and “[h]e easily could have been

hoping for the trial court to reopen the proofs in order to hear the witness.” Id.

9 ¶ 23 Here, defendant mentioned his counsel only in a written letter to the court in that

counsel informed him that his request to “ping” his phone could not be done. In his

statement in allocution, defendant also asserted that his phone could not be “pinged”

because of monetary reasons. Therefore, unlike Lobdell, defendant’s statements indicated

that counsel explained why defendant’s request could not be completed. Defendant

provided no indication—at any time—that counsel was mistaken or untruthful. Nor did he

ever assert that he believed such information could have been obtained. Accordingly, we

find, like the statements in Jindra, defendant failed to make a clear complaint regarding

counsel’s performance. “Defendant’s characterization of his statement as an ‘implicit claim

of ineffective assistance of counsel’ is an acknowledgment of this point.” Taylor,

. Because defendant failed to present a clear claim of ineffective assistance of

counsel, the trial court’s duty to conduct a Krankel inquiry was not triggered. Jindra,

(citing Ayres,

(a defendant’s “clear claim

asserting ineffective assistance of counsel, either orally or in writing, *** is sufficient to

trigger the trial court’s duty to conduct a Krankel inquiry”)).

¶ 24 Moreover, defendant’s statements were subject to more than one interpretation.

Reading defendant’s letter—as a whole—in conjunction with his full statement in

allocution, defendant’s statements more resemble a complaint regarding police action, and

could be easily interpreted as a hope that the court would reconsider the dismissal of the

charge or would be lenient in sentencing based on defendant’s inability to prove his alibi

due to the police’s error in losing his first phone. Under such circumstances, a Krankel

10 inquiry is not required. Taylor,

; Jindra,

;

People v. Thomas,

.

¶ 25 CONCLUSION

¶ 26 For the foregoing reasons, we find defendant failed to present a clear claim of

ineffective assistance of counsel and the trial court was not required to conduct a Krankel

inquiry. We therefore affirm defendant’s conviction.

¶ 27 Affirmed.

¶ 28 JUSTICE WHARTON, dissenting:

¶ 29 I disagree with the majority’s conclusion that the defendant did not present the trial

court with a clear claim of ineffective assistance of counsel. I reach this conclusion because

the defendant indicated in his statements that counsel failed to do something the defendant

alleges could have led to exculpatory evidence. Because I believe this is adequate to trigger

the court’s duty to conduct a preliminary Krankel inquiry, I respectfully dissent.

¶ 30 The majority correctly notes that a trial court’s duty to conduct a preliminary inquiry

under Krankel is only triggered when the defendant clearly raises the issue of counsel’s

performance with the court. Bates,

. In determining whether this

standard has been met, we must not elevate form over substance. See Lobdell,

. Thus, a defendant does not need to explicitly label his claim as one of

ineffective assistance of counsel.

Similarly, I do not believe it is necessary for a

defendant to explicitly state he is dissatisfied with counsel’s performance. Rather, I believe 11 it is sufficient for a defendant to alert the court that counsel failed to do something that

should have been done.

¶ 31 The majority finds the defendant’s statements in this case to be similar to those of

the defendant in the Second District’s decision in Jindra. I disagree. In Jindra, the

defendant filed a pro se motion, asking the court to reconsider his case and asserting that a

“key witness” (Brissa Cuthbertson) did not testify. Jindra,

.

Significantly, although the defendant told the court who his attorney was in the motion, he

did not make any allegations concerning counsel’s performance. See id. ¶¶ 5, 16. He did

not allege that counsel failed to call the witness; he alleged only that she “did not appear”

and that her written statement was not presented to the court. Id. ¶ 5. At a subsequent

hearing, the defendant told the court, “ ‘New information is supplied by *** Brissa

Cuthbertson.’ ” Id. ¶ 7. He further stated, “ ‘She’ll come tomorrow, if you ask her. She says

it was a mistake. She didn’t think she was supposed to show up last week.’ ” Id. When

considered in light of these comments, it seems unlikely that the defendant in Jindra

intended to complain about counsel’s performance. It was against this background that the

Second District concluded the defendant’s pro se motion did not clearly indicate that he

was raising a possible claim of ineffective assistance of counsel.

¶ 32 I find the instant case far more analogous to the Second District’s subsequent

decision in People v. Craig,

. There, the defendant was convicted

of multiple charges involving the sexual abuse of his nieces and nephew. Id. ¶¶ 3-4. At

issue were statements made by the defendant that appeared in the presentence investigation

12 report (PSI). The probation officer who prepared the PSI noted that the defendant

maintained his innocence. Id. ¶ 8. The probation officer wrote the following in the PSI:

“ ‘[Defendant] stated that his lawyer did not have his niece or his mother come to

court to testify on his behalf. He stated that his niece was taking care of these kids

(his brother’s children) and he was never at his niece’s house and the kids told the

niece that [defendant] never did anything.’ ” Id.

At the sentencing hearing, the trial court stated that it had considered the PSI. Id.

¶ 33 On appeal, the defendant argued that the court erred by failing to conduct a

preliminary Krankel inquiry. In response, the State argued that the defendant did not clearly

bring a claim of ineffective assistance of counsel to the attention of the trial court. Id. ¶ 11.

The Second District concluded that the court’s duty to conduct a preliminary Krankel

inquiry was triggered by the statements in the PSI. Id. ¶ 18.

¶ 34 There were two components to the court’s holding. First, the appeals court found

that because the record affirmatively established that the trial court read the PSI, the

defendant’s statements about his attorney were deemed to have been “presented to the

court.” Id. ¶¶ 18-19. Second, in considering whether the substance of these statements was

sufficiently clear enough to trigger a Krankel inquiry, the Second District found that the

defendant’s statements in the PSI were “more like those in Lobdell than those in Jindra.”

Id. ¶ 17. The court explained, “Like the statements in Lobdell, the statements in the PSI

attributed to [the] defendant specifically refer to counsel’s failure to do something. In

Lobdell, it was a failure to raise certain claims; here it is the failure to call a witness.”

(Emphasis added.) Id. Here, as in both Craig and Lobdell, the defendant stated that his 13 attorney failed to do something. Specifically, he stated that his attorney failed to obtain

evidence that he believed would have been exculpatory.

¶ 35 The majority distinguishes this case from Lobdell because the defendant’s

statements in this case indicate that his attorney provided an explanation for why the

defendant’s request could not be fulfilled, unlike the statements involved in Lobdell. The

majority then notes that the defendant did not allege that counsel’s explanation was

erroneous or untruthful. I find this to be a distinction without a difference. The defendant

here stated in his letter that his attorney “claims they can’t” do what the defendant requested

(emphasis added). The defendant then noted that he is “not a professional.” These

comments indicate that the defendant does not know whether his attorney’s explanation

has merit.

¶ 36 It is worth emphasizing that a defendant’s claim of ineffective assistance of counsel

does not need to be legally sound to trigger a court’s duty to conduct a preliminary Krankel

inquiry. Lobdell,

. The purpose of the inquiry is to give the

defendant an opportunity to elaborate on his allegations so that the trial court can determine

whether those allegations show possible neglect of the case.

Consistent with these

principles, the defendant here should be allowed to flesh out his claim so that the trial court

can determine whether his allegation shows possible neglect of his case by defense counsel.

He should not be precluded from doing so merely because he is not a professional and does

not know whether to question the judgment of his attorney.

14 ¶ 37 For these reasons, I would find that the defendant’s statements in this case were

clear enough to trigger the trial court’s duty to conduct a preliminary Krankel inquiry. I

would reverse and remand this case to allow the court to do so.

15