## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Rem sik-Miller , 2012 IL App (2d) 100921

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. SHERRI ANNE REMSI K-MI L L ER, Defe ndant-Appe llant.

District & N o. Second District Docke t No. 2-10-0921

Filed Marc h 8, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) On app ea l fr om the denial of defe ndant’s pro se motion for

rec onsideration of her sentenc e for solicit ati on of murder for hire, the

cause was rema

nded for the limit ed purpose of allowing the trial court to conduct a preliminary examination as to the fac tual basis of defe ndant’s alleg ation of ineffe ctive assistance of counsel arising from her comment at the hear ing on her motion that her attorney did not repr esent her “to his fullest ability ” during her trial; howeve r, if the trial court finds the claim related to her argument at the hear ing on the posttrial motions conce rning whether cer

tain witness es should have been called, the claim may be denied on the g rounds that the trial court’s inquiry at the hear i n g was sufficie nt and defe ndant did not object, but if defe ndant was ref err ing to other defic iencies, preliminary investiga tion must be made i n t o those

are as.

Dec ision Under Review Appea l from the Circuit Court of Ka n e County
, No. 08-CF- 2395; the Hon. Thomas E. Mueller , J udg e, pre siding.

J udg ment Remanded.Counsel on

Appea l Thomas A. L ilien a n d K a th leen Weck, both of State Appellate Def ender ’s Offic e, of Elg in, for appe llant.

J oseph H. McMahon, State’s Attorney
, of St. C h ar les (L awr ence M. Ba uer and Edwar d R. Psenicka, both of State’s Attorney s Ap p ellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel J USTI CE BURKE de livered the judgme nt of the cour t, with opinion.
J ustices Bow man and Schostok c oncurr ed in the judgme nt a nd opinion.

OP INION

¶ 1 Following a bench trial, def en d an t , S h er ri an n e R em s i k -M i l l er, was convicted of solicitation of murder for hire (720 I L CS 5/8-1.2(a) (West 2008)) and sentenc ed to 22 y ear s in prison. Following the denial of her pro se motion for rec onsideration of h er s en t en ce, defe ndant timely appea led. Def endant arg

ues that the court err ed in not inquiring into her pro

se claim that her trial counsel was ineffe ctive (see People v. Krankel
, 102 I ll. 2d 181 (1984))

. The issue is whether defe ndant’s comment at the hear ing on her motion–that defe nse counsel did not repr esent her “to his fullest ability during[her] trial”–amounted to an allega tion of ineffe ctive assistanc e such that it trig g ere d the court’s duty to inquire. F or the re asons that follow, we rema

nd for the limit ed purpose of allowing the trial court to conduct the nece ssary preliminary

examination as to the factua l basis of defe ndant’s alleg ation.

¶ 2 I . BA CKGROUND ¶ 3 Def

endant was char g ed with solicitation of murder for hire (720 I L CS 5/8-1.2(a) (West 2008)) and solicitation of murder (720 I L CS 5/8-1.1(a) (West 2008)). Following a bench trial, the trial court found defe ndant g uilty of solicitation of murder for hire and set the matter for se ntencing

. ¶ 4 Def

ense counsel and defe ndant eac h filed a posttrial motion. Def ense counsel’s motion asked for a judgme nt of not g uilty or, in the alternative, a new trial. The trial court denied the motion. Defen d ant’s pro se motion asked for a “new trial based on new evidenc e and/or witnesses not known/available for trial of J une 7, 2010.” Although defe nse counsel did not adopt defe ndant’s pro se motion, he asked the trial court to consider i t

. T h er eaf ter, the following colloquy

took place:
“THE DEF ENDAN T: Your Honor, at the trial y ou said my intent was very clea r by the tapes. And there are witnesses that are –can be available to show that that was not my intent. O ther people that I had talked to being ang ry , just talking to a nd venting
, people who knew me for more than three months. I would like the opportunity to at least have

-2-them speak be fore

– THE COURT: What would y ou have the m testify to?
THE DEF ENDAN T: That I was ang ry

. They knew the situation betwee n my husband and my self. An d t h at I was ang ry

. And that I never would have g one throug h with
any thing.
THE COURT: They couldn’t testify to that. They could testify –y ou could bring in 50 people, all of whom would say I know [defendant], I know she was ang ry at her husband. They could not then go on to say what wa s go i n g on in y our m ind, that’s i nadmissible evidenc e. THE DEF ENDAN T: They could talk about things we had talked about, my friends and I

. THE COURT: No, that would be inadmissible hear say

. I ’m just telling you the law.
THE DEF ENDAN T: I ’m just saying I –okay

. [DEFENSE COUNSEL ]: What y ou’re saying is you didn’t intend.
THE DEF ENDAN T: Ididn’t intend, corr ect. [DEFENSE COUNSEL ]: The Court knows that’s our position. He’s awa

re of it.
THE COURT: I ’ve rea d y our letters in allocution, I ’m very familiar with what y our position i s. So, that mot ion will be denied as w ell. [AS SI STANT STATE’S ATTOR NE Y] : Your Honor, we would ask that the defe ndant, if the Court wishes to inquire, list of [ sic ] people that she would have called, notwithstanding the Court’s ruling

. There may be something out there
, but we would ask that it be made of

rec ord.
THE DEF ENDAN T: Mary Ellen Rea. Steven Kampau. Cindy Knotts. Mary Bublitz. That’s all–that’s off the top of my head. I could sit down and come up with a few more. [DEFENSE COUNSEL ]: These are people who would testify that y ou wer e ang ry at
y our husband?
THE DEF ENDAN T: Mary Ellen Rea wa s my

thera pist, y es. [DEFENSE COUNSEL ]: I think the Court probably is awar e of tha

t. THE COURT: She testified–the e vidence came out that she was.
I s the State rea dy

to proce ed to sentenc ing?”
The matter proce eded to a sentenc ing hear ing, afte r which the court sentenc ed defe ndant to 22 y ear s in prison. ¶ 5 There afte r, defe ndant filed a pro se motion for rec onsideration of her sentenc e. De fense counsel did not file a postsentencing motion. A hear ing took place on September 3, 2010, at which defe ndant appea

red pro se

. Def

endant did not prese nt oral arg ument in support of her motion. After the State argued as to why the motion s h o u l d be denied, the court asked defe ndant if she wishe d to reply . The followingcolloquy took place: “[THE DEF ENDAN T]: Yes, sir, Ido. First, I want to make sure t hat [ defe nse counsel] is no longe r listed as my attorney

.

-3-Idon’t believe he did re prese nt me to his fullest abilit y duringmy

trial. THE COURT: Okay . That’s not an issue be fore this court today

. That would be an issue for the a

ppellate c ourt. [THE DEFEN DANT]: Okay .” After defe ndant re plied to the State’s ar g uments, the court de nied the motion. ¶ 6 Def

endant timely

appea led.

¶ 7 I I . ANALYSI S ¶ 8 Def

endant arg

ues that, “[b] eca

use the trial court reje cted defe ndant’s alleg ation that trial counsel was ineffe ctive without inquiring into the fac tual basis for the claim, this case should be remanded for a proper inquiry .” Ac cordingto defe ndant, the comment that she made at the hear ing on her pro se motion for rec onsideration of her sentenc e–that she did not believe that defe nse counsel repr esente d her “to his fullest ability during [her] trial”–wa s sufficie nt to raise a claim of ineffe ctiveness. The State first responds that the trial court proper ly inquired into and reje cted defe ndant’s claim. Acc ording to the State, defe ndant’s statement at the hear ing on her pro se motion for rec onside ra t i o n o f h er sentenc e related back to defe ndan t ’s o ri gi nal argument (ra ised at the hear ing on the posttrial motions) that cer tain witnesses should have been p re sented at trial, which the court proper ly addre ssed. In the alternative, the State maintains that the comment at the h ea ri n g on her pro se motion for

rec onsideration of her sentenc e wa s “t o o vague and conclusory” to war rant further investigation. ¶ 9 When a defenda nt bring s a pro se posttrial cl aim that trial counsel was ineffe ctive, the trial court must i n quire adequa tely into the claim and, under cer tain circ umstances, must appoint new counsel to argue the claim. Krankel
, 102 I ll. 2d at 187-89; see People v. Taylor
, 237 I ll. 2d 68, 75 (2010); People v

. Penc e , 387 I ll. App. 3d 989, 994 (2009). New counsel is not automatically require d mere ly beca use the defe ndant prese nts a pro se posttrial claim that his counsel was ineffe ctive. People v. Moore
, 207 I ll. 2d 68, 77 (2003). The trial court must first examine the fac tual basis of the claim. The supreme court has listed three way s in which a trial court may conduct its examination: (1) the court may ask trial counsel about the fac ts and circ umstances related to the defen d an t ’s al leg ations; (2) the court may ask the defe ndant for mo re s pecif ic information; and (3) the court may rely on its knowledg e of counsel’s perf

ormanc e at trial and “the insufficienc y of the defe ndant’s alleg ations on their fac e.” Id. at 78-79. I f the defe ndant’s alleg ations show possible neg lect of the case , the court should appoint new counsel to argue the defe ndant’s claim of ineffe ctive assistance

. Taylor
, 237 I ll. 2d at 75; Penc e , 387 I ll. App. 3d at 994. Howeve r, if t h e co u rt conclude s that the defe ndant’s claim lacks merit or perta ins only to matters of trial strateg y , the court may deny the claim. Taylor
, 237 I l l

. 2 d at 7 5 ; P ence , 387 I ll. App. 3d at 994. I f the court fails to conduct the nece ssary preliminary examination as to the fac tual basis of the defe ndant’s alleg ations, the case m ust be remanded for t he li mited pu rp ose of allowing the court to do

so. People v. Serio
, 357 I ll. App. 3d 806, 819 (20 0 5 ). T h e threshold question of whether defe ndant’s statement constituted a pro se claim of ineffe ctive assistance sufficie nt to trig g er the court’s duty to inquire i nto the fac tual basis of the c laim is a question of l aw; thus
, our

-4-revie w is de novo . See Taylor , 237 I ll. 2d at 75.

¶ 10 As an initial matter, we reje ct the State’s argument that defe ndant’s statement conce rning counsel’s failure to repr esent her to his fullest ability nece ssarily related back to defe ndant’s
pro se motion for a new trial wher ein she expressed her desire to pr esent cer tain additional witnesses. Ther e is simply nothing in the t ransc ript that allows us to draw that conclusion. Indeed, de fenda

nt’s pro se motion for a new tria l did not allege ineffe ctiveness on the pa rt of counsel; rathe r, it reque sted a “new t ri al b as ed on new evidenc e and/or witnesses not known/available for trial of J une 7, 2010.” Moreover, the court did not treat the motion as

one ra ising inef

fec tiveness; it addresse d the motion as, indeed, a motion for a new

trial. ¶ 11 Having deter

mined that defe ndant’s alleg ation that counsel failed to repr esent her to his fullest ability did not nece ssarily relate back to defe ndant’s pro se motion for a new trial, the question become s whether
, as the State contends, defe ndant’s comment was “too vague and conclusory” to trig g er the court’s duty to inquire. ¶ 12 We first addre ss the State’s case law. In support of its position, the State cites People v

. Johnson , 159 I ll. 2d 97, 126 (1994), People v. Bobo
, 375 I ll. App. 3d 966, 985 (2007), a nd People v. Ford
, 368 I ll. App. 3d 271, 276 (2006). In addition, the State cites People v. W ard
, 371 I ll. App. 3d 382, 431 (2007), for the proposition that “some minimum require ments must be sa t isfied by a defenda

nt in order to trig g er a preliminary inquiry by the t rial court,” and it cites People v. Radford
, 359 I ll. App. 3d 411, 418 (2005), for the proposition that “[a] bald alleg ation of ineff

ective a ssistance is insufficie nt.” ¶ 13 We note that the first three of the State’s case s are distinguishable, beca use in eac h case the trial court conducte d the re quisite inquiry . See Johnson , 159 I ll. 2d at 126 (finding that “none of defe ndant’s arguments wer e overlooke d or ignor ed”) ; Bobo
, 375 I ll. App. 3d at 984 (“The trial judge listened to defe ndant and discussed his alleg ations of ineffe ctive assistance of counsel wi t h him. The recor d ref lects t hat t he trial court’s actions wer e appropriate and demonstrated adequat e revie w and inquiry into defe ndant’s alleg ations of ineffe ctive assistance of counsel.” ); Ford
, 368 I ll. Ap p

. 3 d at 2 76 (“The rec ord shows that the court considere d defe ndant’s alleg ations of ineffe ctive assistance of counse l as they arose and deter mined, in essenc e, that defe ndant did not bring forth a colora ble claim of i n ef

fec tive assistance of counse l.”). ¶ 14 We now turn to Radford and W ard

. T h e i s sue on appea l in eac h case was whether the
court err ed in failing to conduct the Krankel inquiry

. In Radford
, the defe ndant sent a letter to the trial judg e, stating : “ ‘[ I ]f my witness wa s ca l l ed and my lawy er would have did a halfway g ood job that I would be at home w ith my family ***.’ ” Radford , 359 I ll. App. 3d at 416. The First District first found that the defe ndant’s ex parte letter d i d not make an adequate claim of ineffe ctive assistance

. Id. I t a lso found that, beca use the defe ndant did not argue a claim of ineffe ctive assistance at his posttrial he aringwhen the le tter wa s prese nted (while he was repr esente d by counsel), t h e d ef en d an t forf

eited any claim t hat t he letter may have raised. Id. at 417. The c ourt also noted that an ex parteletter doe s not amount to a motion. Id. The court further found that, even if t h e l et t er was sufficie nt to raise a claim of ineffe ctiveness, the trial court “did not need to rea ch Krankel ” beca use t h e l et t er was

-5-conclusory

. Id. at 418. The court went on to hold: “The trial court adequately evaluated the

defe ndant’s claim under Moore becau s e i t was familiar with defe ndant’s counsel’s perf ormanc e at trial and defe nd an t’s lack of detailed alleg ations of defe ndant’s counsel’s ineffe ctive perf

ormanc e.” Id. I t then conclude d its analy sis by stating that “the trial co u rt proper ly conclude d that it need not conduct any further inquiry .” Id. at 418-19. Thus, while the court stated that no inquiry was require d, it never theless held that t h e trial court “ade quately

evaluated def

endant’ s claims.” Id. at 418. ¶ 15 In W

ard , the def

endant infor

med the trial c ourt: “ ‘[T]here is a lot about my case that y ou still do not know about and there was a lot of evidenc e that wa s not submit ted in my trial, in my

motion.
I had signe d aff

idavits and a lot of other things that was not submitt ed, y ou know, and I blame that on–and the fac t of m y counsel, and I ask t hat, y ou know, t h at y o u t ake all that into consideration, you know.’ ” W ard , 371 I ll. App. 3d at 432.
The First Di s t ri ct found that this alleg ation was insufficient to raise a claim of ineffe ctive assistance of counsel, noting that it was not meaning fully distinguishable from Radford

. The
court quoted Radford
, stating that “ ‘[ a] b ald alleg ation that counsel rende red inadequate repr es en t ati on is insufficient for the trial court to consider [as an acc eptable invocation of Krankel ].’ ” Id. (quoting Radford , 359 I ll. App. 3d at 418). ¶ 16 Whil e the First Dist rict case law relied on by the S tate seems to hold that a fair deg ree of specificity is require d befor e a duty to inquire i s even t ri gger ed, this court’s decision in People v. Bolton
, 382 I ll. App. 3d 714, 721 (2008), sug g ests that even a bare claim of ineffe ctiveness wa

rra nts some deg ree of inquiry under Moore

. In Bolton , we state d that “if

a defe ndant mere ly states, ‘trial counsel is ineffe ctive,’ a court should at least ask ‘how’ and
g ive the defe ndant a chanc e to e laborate.” Id. In Penc e , we found that the court err ed when it failed to inquire i nto the factual m atters underlying the defe ndant’s allegations (made in allocution) that “ ‘[his] defe nse counsel did not thoroug hly repr esent [hi m] ’ ” and th at “ ‘there wer e issues of fac ts tha t [ his] defe nse looked [ sic ] and omitted’ ” and, further
, that the court was “ ‘denie d the full picture for which [i ts] verdic t ma y have chang ed.’ ” Penc e , 387 I ll. App. 3d at 995. We held: “De fenda nt’s claims of i n ef

fe ct i v en ess may or may not have me rit, but the court must examine their fac tual basis.” Id. at 996. Thus, we r emande d for that inquiry

. Id. ¶ 17 Aside from the appar ent conflict with decisions of this court, the case s cited by the State also appea

r to disreg ard Moore ’s holding that the trial co u rt must conduct “some ty pe of inquiry ” into the fac tual basis of the defe ndant’s claim ( Moore
, 207 I ll. 2d at 79) and, even if the claim arguably lacks merit as stated, must “ ‘af ford[ ] the defe ndant the opportunity to specify and support his complaints’ ” ( id. at 80 (quoting People v. Robinson
, 157 I ll. 2d 68, 8 6 (1993))). Her e, wher e defe ndant stated to the court that she wanted to make sure that defe nse counsel was “no longe r listed as [her] attorney” and then said, “I don’t believe he did
repr esent me to his fullest ability during my trial,” th e co u rt s h o uld have at least asked a follow-up question. The rela tively rec ent supreme court case of Taylor
, 237 I ll. 2d at 75-77, supports this conclusion. In Taylor
, the supreme court addre ssed the issue of whether the defe ndant’s statement at sentenc ing constituted a pro se claim of ineffe ctive assistance of

-6-counsel sufficie nt to trig g er the trial court’s duty to conduct a K rankel inquiry

. Id. The defe ndant argued that his statement, which did not mention defe nse counsel at all, amounted
to an implicit

alleg ation of ineff

ectivene ss. The court reje cted the def endant’ s claim. What is instructive for this court is the fac t that, in doing so, the supreme court found it particula rly rele vant that “nowhe re in de fenda nt’s statement at sentenc ing did he specific ally complain about his attorney ’s per formanc e, or e x pressly state he was c laiming inef fec tive assistance of counsel.” Id. at 76. Her e, defe ndant’s comment that her attorney did not repr esent her “to his fullest ability during [her] trial” made clea r that she was raising a claim of ineffe ctiveness and, thus, the cour

t should have inquired f

urther.

¶ 18 I I I . CONCL USI ON ¶ 19 Ba sed on the fore g oing, we rema nd for the limit ed purpose of allowing the trial court to conduct th e nece ssary preliminary examination into the fac tual basis of defe ndant’s alleg ation. See Serio
, 357 I ll. App. 3d at 819. We note, howeve r, that if the trial court finds that defe ndant’s ineffe ctiveness claim rela tes back to the argument that she ra i s ed at the hear ing on the posttrial motions, conce rni n g whether cer tain witnesses should have been
prese nted at trial, then the court need not inquire further and may deny the claim, beca use the court’s orig inal inqui ry was sufficie nt under Moore (see Moore
, 207 I ll. 2d at 78-79) and beca use defe ndant raises no challeng e to its sufficie ncy

. Of course , if defe ndant is ref err ing
to other alleg ed defic iencies in cou n s el ’s perf ormanc e, the trial court must conduct its preliminary

investigation into t hose ar eas.

¶ 20 Remanded.

-7-