## 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 . Whit aker , 2012 IL App (4th) 110334

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. J AMES A WHI TAKER, De fenda nt-Appellant.

District & N o. Four th District Docke t No. 4-11-0334

Filed August 22, 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

. ) Neither defe ndant’s letter to one of his judge s nor his testimony at t h e hear ing on his motion to withdraw his guilty pl ea am o unted t o a pro se claim of ineffe cti ve assistance of counsel sufficie nt to require the trial court to conduc t a Krankel inquiry

.

Dec ision Under Review Appea l from the Circuit C o u rt of Macon County
, No. 07-CF- 578; the Hon. Timothy

J . Steadman, Judge, pr esiding

.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pell et i er , Karen Munoz, and Duane E. Schuster, all of State Appellate D efe nder’ s Offic e, of Spring field, for appellant.

J ack Ahola, State’s Attorne y , of De catur (Patrick Delfino and R obert J. Bide rman, both o f State’s Attorney s Appellate Prosecutor’ s Offic e, of counsel), f

or the People.

Panel PRES I DI NG J USTI CE TURNER delivere d t h e j udg ment of the court, with opinion. J ustices Pope and Kne cht conc urre d in the judgme nt and opinion.

OP INION

¶ 1 As a result of defe nse counsel’s failure to file the attorney ’s cer tificate require d by I llinois Supreme Court Rule 604(d) (ef f. J uly 1, 2 0 0 6 ), this court rema nded case No. 07-CF- 578 (ca se 578) of defendant, J am es A. Whit aker
, to the M acon County circ uit court. People v. W hitaker
, No. 4-08-0926, slip order at 6 (Nov. 13, 2009) (unpublished order under Supreme Court Rule 23). On rema

nd, defe ndant filed a Fe bruar y 2010 letter, raising some complaints about counsel and reque sting to be prese nt at what the docket sheets ref er to as a “pre -trial.” Moreove r, defe nse counsel filed (1) a motion to withdraw defe ndant’s guilty plea, asser ting defe ndant did not understand the conseque nces of h i s p l ea , an d (2) a proper Rule 604(d)

cer tificate. I n April 2011, the court held a hearing on defe ndant’s motion to withdraw his guilty plea and denied it. At the hear in g , defe ndant testified his counsel had told him he would rec eive a

n 18-month sentence

. ¶ 2 Def

endant appea ls, asser

ting only this court should ag ain rema nd case 5 7 8 t o the trial court for an inquiry into his pro se ineffe ctive-a ssistance-of -counse l claims that wer e raised in his Fe bruar

y 2010 letter and during his testimony at the hear ing on his motion to withdraw his guilty plea. We af

firm.

¶ 3 I . BA CKGROUND ¶ 4 I n Ap ri l 2007, the State char g ed defe ndant with one count of driving wh i l e l i ce n s e revoke d with a prior conviction for driving while license revoke d (625 I L CS 5/6-303(a)
, (d) (West 2006)) in ca s e 5 7 8. In August 2007, the case was assigned to J udg e Kather ine McCarthy

. Def

endant later rec eived additional char g es in a sepa rate case , case No. 07-CF1595 (ca se 1595), a

nd that case was a lso before J udg e McCar thy

. ¶ 5 In J anuar

y 2008, J udg e Tim othy J

. Steadman held a plea he aring on the charg e in case 578, at which defe ndant enter ed an open plea of guilty to the State’s char g e. Def endant was

-2-repr esente d by David Ellison at the plea hear ing. After indicating it was an open plea, Ellison

stated the following : “And I understand that when he enter s his plea that y ou’re g oing to have to send it back to J udg e McCarthy for sentenc ing. I ’ve discussed that with him and he’s ag ree able to i t

. ” T h e fo llowing exchang e betwee n the trial court and defe ndant also took place

. “THE COU RT: I s any body forc ing to you [ sic ] pl ead guilty to this?
THE DEF ENDAN T: No, sir.
THE COURT: Have an y p ro mises been made to you by anyone to g et to y ou [ sic ] plead guilty ?
THE DEF ENDAN T: No, sir.
THE COURT: Mr. Ellison is y our attorney

. Has he answe red any questions y ou might have had about y

our ca se to your satisfac tion?
THE DEF ENDAN T: Yes, sir. THE COURT: Do y ou understand whateve r t he sentence is, is entirely up to J udg e McCarthy ?
THE DEF ENDAN T: Yes, sir. THE COURT: Are y ou pleadingguilty of your own fr ee w ill?
THE DEF ENDAN T: Yes, sir. THE C OURT: Do y ou have any questions about what y ou are charg ed with? Your rig hts? Possibl e sente nces? Or a ny thing e lse?
THE DEF ENDAN T: No, sir.” ¶ 6 In case 1595, a jury found defe ndant guilty of one count of burg lary (720 I L CS 5/19-1(a ) (West 2006)) re lated to a Kr og er store

. ¶ 7 At a joint Marc h 2008 hear ing, J udg e McCarthy s en t en ce d d efe ndant to consec utive prison terms of 3 y ear s in case 578 and 13 y ear s in case 1595. In April 2008, defe ndant filed

mo t i o n s t o rec onsider his sentenc e in both case s, and the court denied both of them. Def en dant appea led both case s. As stated, we rema nded case 578 due to the lack of Rule 604(d) c ertifica

te. W hitaker , slip order at 6. ¶ 8 On rema

nd, J udg e McCarthy set a stat u s h ea ri n g fo r Fe b ru ar y 16, 2010. Neither defe ndant nor Ellison appea red at the s tatus hear ing, and J u d ge McCarthy set a “pre-tr ial” for Marc h 2, 2010. Acc ording to a Fe bruar y 24, 2010, docket entry , a letter from defe ndant

was “plac ed on file.” The letter was addre ssed to J udg e McCarthy and stated the following : “I ’m J ames Whit aker case # 2007CF578 my conce rn is the fac t that I was not sent a writ for Fe b. 16, 2010 so I was just informed by a friend that there is a p retrail set for M ar ch 2nd 2010 and this being Fe b 20, 2010 and there still been no contra ct from the court or an attorney I ’m beg inning to w onder why I haven’ t been contra cted for one for two as far as I ’m conce rned Mr. Ellison did not pref orm his duty corr ectly the frist time and he lied to me about what would happen the amount of time I would rec eive if I lost and the deals that wer e place on the table, so I find that this is a major confic t of instress

on my part and the fac t tha t I believed that I would rec eive far less time if I lost a nd the

-3-fac t that he felled to advise me of a rig ht to a 402 confr ence there are a lot of rea sons for this mistrust not to mention the fac t of non communication on his behalf

. So to save time and ener g y I respe ctfully ask that y ou please make it possible that I am there so that I can speak f or my self if ne ed be.
Ithank you for your time in this matter.” (Spellingand punctuation in original.) ¶ 9 On Marc h 2, 2010, J udg e McCarthy held the “pre -trial,” at which Ellison was prese nt but not defe ndant. On April 20, 2010, Ellison filed a motion to withdraw defe ndant’s guilty plea and a Rule 604(d) cer

tificate. In August 2010, J udg e McCarthy transfe rre d the case to J udg e Steadman beca

use he was the judge who acc epted defe ndant’s guilty plea. In Fe bruar y 2011, J udg e Steadman order ed Ellison to file a new Rule 604(d) cer tificate beca

use the one on file

was defe ctive. On Fe bruar y 24, 2011, Ellison filed a sec ond Rule 604(d) c ertificate, which J udg e Steadman f

ound was c ompliant with the rule. ¶ 10 On April 18, 2011, J udg e Steadman he ld a hea ringon defe ndant’s motion to withdraw his guilty plea. Def

endant testified that, when he pleade d guilty
, he believed he was rec eiving an 18-month sentenc e. On c ross-examination, the followingexchang e took place : “Q. We are talking about the plea in this particula r case

. Don’t car e about pleas that
y ou’ve enter ed befor e. Did anyo ne, when y ou enter ed a plea on the date that y ou pled guilty in this case, tell you that y ou wer e g oing to g et an 18- month sentence ? A. About a wee k befor e that, my attorney informed me that I was still to rec eive the 18-month sentence .” Ellison argued that, when defe ndant pleade d guilty
, he thought he was g etting the 18-month sentenc e he had previously been offe red, and thus defe ndant should be allowed to withdraw his plea. The court reje cted the argument and denied defe ndant’s motion, noting a plea ag ree ment was not set forth at defe ndant’s plea hear ing beca use one did not exis t. The court also noted defe ndant’s aff irmative response at the plea hearing to its question whether defe ndant under stood his sentence w ould be entire ly up to J udg e McCar

thy

. ¶ 11 The same day as the postplea hear ing, defe nd an t fi l ed a t i m el y notice of appea l in sufficie nt compliance with I llinois Supreme Court Rule 606 (ef f. Mar. 20, 2009). Thus, this court ha s jurisdiction under Rule 604(d).

¶ 12 I I . ANALYSI S ¶ 13 On appeal, defendant only al l ege s t h e trial court erre d by failing to conduct an inquiry into his postplea ineffe ctive-a ssistance-of -counse l claims as require d by People v. Krankel
, 102 I ll. 2d 181, 464 N.E.2d 1045 (1984), and its prog eny

. Def endant notes he (1) sent a letter in Fe bruar

y 2010 to J udg e McCarthy
, in which he complained about counsel’s perf ormanc e, and (2) testified at the hear ing on his motion to withdraw the plea that counsel had told him he would rec eive an 18-month sentenc e. The State contends the court was not re q u i re d to hold a Krankel

inquiry

. ¶ 14 When a defe ndant ra i s es a p r o s e alleg ation of ineffe ctive assistance of counsel, ne w counsel is not automatically app o i n t ed

. People v. Taylor
, 237 I ll. 2d 68, 75, 927 N.E.2d 1172, 1175 (2010). Under the rule that has develope d beg inning with Krankel
, the trial court

-4-first examines the fac tual basis of the defe ndant’s claim. Taylor
, 237 I ll. 2d at 75, 927 N.E.2d

at 1175. “I f the court deter mines the claim lacks merit or perta ins only to matters of trial strategy , new counsel need not be appointed and the pro se motion may be denied. Howeve r, if the defe ndant’s alleg ations show p o s s ible neg lect of the case , new counsel should be appointed to argue the defe ndant’s claim of ineffe ctive assistance .” Taylor
, 237 I ll. 2d at 75, 927 N.E.2d at 1175-76. In this case , the issue is whether defe ndant’s letter and his statement during his testimony at t he hea ringon his motion to withdraw his guilty plea constitut ed a
pro se claim of ineffe ctive assistance of counsel sufficie nt to trig g er the trial court’s duty to conduct the initial Krankel inquiry

. ¶ 15 To raise an i neff ective- assist an ce -of- counsel claim, our supreme court has held “a pro

se defe ndant is not require d to do any more than bring his or her claim to the trial court’s attention.” People v. Moore , 207 I ll

. 2d 68, 79, 797 N.E.2d 631, 638 (2003). In support of that conclusion the supreme court cited two appellate court decisions, People v. Giles
, 261 I ll. App. 3d 833, 635 N.E.2d 969 (1994), and People v. Finley
, 222 I ll. Ap p

. 3 d 5 7 1
, 584 N.E.2d 276 (1991). In those case s, “the ‘cla im’ was included in corr espondenc e to the trial court.” Taylor , 237 I ll. 2d at 76, 927 N.E.2d at 1176. “In Gil es , ‘[ a]fter defenda nt’s trial and before his sentenc ing hear ing, defe ndant s ent a letter to the trial court criticizing his counse l’s perf ormanc e.’ Giles , 261 I ll. App. 3d at 846[, 635 N.E.2d at 978]. The letter included five separ ate bases for claiming that

c o u n sel was ineffe ctive. Simi larly
, in Finley
, following defe ndant’s convi c ti o n , h e ‘ wr o te three letters to the trial judge ’ providing the names of potential witnesses. Finley
, 222 I ll. App. 3d at 576[, 584 N.E.2d at 279]. Def endant ‘cha

rg ed that his public defe nder did not attempt to contac t these potential witnesses and that she “did not repr esent me to the best of her ability .” ’ Finley
, 222 I ll. App. 3d at 576[, 584 N.E.2d at 279].” Taylor
, 237 I ll. 2d at 76, 927 N.E.2d at 1176. Since Moore , our supreme court has explained that, while neither of the afor ementioned “ ‘cla ims’ ” was conventional, eac h expressly complained ab o u t co u nsel’s perf ormanc e. Taylor , 237 I ll. 2d at 76, 927 N.E.2d at 1176. ¶ 16 In Taylor
, 237 I ll. 2d at 77, 927 N.E.2d at 1177, our supreme court found the defe ndant’s statements did not war

rant a Krankel inquiry

. At sentenc ing, the d ef en d ant’s statements indicated he would have acc epted the State’s p l ea o ff er if he had understood he would

rec eive a prison term of 6 to 30 y ear s if he was found guilty of the char g ed offe nse. Taylor
, 237 I ll. 2d at 73-74, 927 N.E.2d at 1174-75. The supreme court decla red t hat, “[i] f defe ndant’s statement in the case at bar wer e deeme d sufficie nt to require a Krankel inquiry
, few st at em ents would be insufficient.” Taylor
, 237 I ll. 2d at 77, 927 N.E.2d at 1177. Moreove r, the supreme court noted “nowhe re in defe ndant’s statement at sentenc ing did he specific ally complain about his attorney ’s per formanc e, or e x pressly state he was claiming ineffe ctive assistanc e of c ounsel.” Taylor , 237 I ll. 2d at 76, 927 N.E.2d at 1176. The court also stated the f

ollowing: “In addition, beca

use of the rambling nature of defe ndant’s statement, it is amena ble to

more than one interpre tation. For example, acc ording to the State, ‘def endant’ s statement

mere ly shows regret at not acc epting the m ore advantag eous plea deal be fore trial, and

-5-not that he reje cted the offe r based upon a mater ial misunderstandingof what sentence he fac ed.’ See People v. Gr a n t , 7 1 I ll. 2d 551, 557-58[, 377 N.E.2d 4, 7] (1978) (r ej ec t i n g argument that trial court err ed in failing to g ive particula r jury instruction, stating: ‘I f a defe ndant does not articulate his theory *** he cannot rea sonably expect the trial court, unaided, to divine his intent’).” Taylor
, 237 I ll. 2d at 77, 927 N.E.2d at 1177. ¶ 17 S i n ce T

a yl o r , the supreme court has addre ssed Krankel two more times. In People v. Jock o , 239 I ll. 2d 87, 93-94, 940 N.E.2 d 59, 63 (2010), the supreme court also found the fac ts of the case did not war rant a Krankel inquiry

. In rea ching that conclusio n , t he court noted the defe ndant’s claim he was not repr esente d by counsel at his arr aig nment was ref uted by the rec ord. Jock

o , 239 I ll. 2d at 93, 940 N.E.2d at 63. Wit h respe ct t o t h e d ef en dant’s “ ‘af fidavit’ ” and a letter to the office of the cler k of the circ uit court in which the defe ndant al le g e d ly raised ineffe ctive-a ssistance-of -counse l claims, the supreme court stated the rec ord indicated the tr ial court, de fense counsel, a nd the State wer e all unawa re of the documents

as “no mention was made of them at any point in the proce eding s by the defe ndant or anyone else.” Jock

o , 239 I ll. 2d at 93-94, 940 N.E.2d at 63. The court ref used to criticize the trial court for failing to take action on the defe ndant’s conce rns when nothing indicated the court

was e ver ma de aw are of them. Jock o , 239 I ll. 2d at 94, 940 N.E.2d at 63. ¶ 18 In People v. Patrick
, 2011 I L 111666, ¶ 42, 960 N.E.2d 1114, the supreme court held a defe ndant could seek a new trial based on ineffe ctive-a ssistance-of -counse l claims mor e th a

n 30 day s afte r a finding of gui l t b u t befor e a notice of appea l has been filed. Since the trial court had ref

used to examine the defe ndant’s pro se ineffe ctive-a ssistance-of -counse l claims raised after the 30-da

y period, the supr eme c ourt rema nded the cause for t he trial court for

a Krankel inquiry

. Patrick, 2011 I L111666, ¶ 43, 960 N.E.2d 1114. ¶ 19 Her e, defe ndant asser ts he raised a pro se ineffe ctive-a ssistance-of -counse l claim in the trial court with his Fe bruar y 2010 let t er and his testimony at the hear ing on his motion to withdraw his guilty plea, i n wh ich defe ndant stated his counsel informed him he would

rec eive an 18-month sentenc e if he pleade d guilty

. Def endant’ s testimony at the April 2011 hear ing on defe ndant’s postplea motion does not war rant a Krankel hear ing under Jock o

. At the hear ing, defe ndant indicated he believed he would rec eive an 18-month sentenc e beca use
a wee k befor e the plea hearing, his attorney told him he would rec eive an 18-month sentenc e. The trial court found defe ndant’s belief he would rec eive an 18-month sentenc e was ref uted by the record at the J anuar y 2008 plea heari n g b ec au s e defenda nt indicated he understood his sentenc e would be “entire ly ” up to J udg e McCarthy

. The transcr ipt of the J anuar y 2008 p l ea h earing confirms defe ndant did answe r in the aff irmative when asked whether h e understood the sentenc e is “entire ly up to J udg e McCarthy .” The tran s cr i p t also shows defe nse counsel discussed with defe ndant and defe ndant ag ree d his case would g o to J udg e McCarthy for sentenc ing. Moreove r, defe ndant answe red in the neg ative when asked if any promises had been made to defe ndant by anyone to g et him to plead guilty

. Thus, as in Jock o , defe ndant’s contention base d on his te stimony at the April 2011 hear ing does not r equire a Krankel hearing beca

use it is ref

uted by the rec ord. Moreo v er , t h e trial court did addre ss defe ndant’s testimony in ruling on defe ndant’s motion to withdraw his guilty plea as it found defe ndant’s belief he would receive an 18-month sentenc e was ref uted by defe ndant’s statements at his plea he aring

.

-6-¶ 20 Whether def endant’ s Fe bruar

y 2010 letter wa

rra nts a Krankel inquiry is not as clear as defe ndant’s testimony

. Whil e the rec ord d o es not sug g est the court or any attorney s wer e made a war e of the letter a s defe ndant addre ssed the letter to a judge differ ent from the one who presided over the hear ing on the postplea motion, defe ndant did attempt to raise an issue
pro se at the end of

the postplea motion but was stopped by the t rial judg e. Unde r Patrick
, 2011 I L 111666, ¶ 42, 960 N.E.2d 1114, defe ndant still had the ability to raise a pro se ineffe cti v e-assistance- of-c ounsel claim. Thus, if defe ndant had been able to raise an ineffe ctive-a ssistance-of

-counse l claim at the pos tplea hearing
, the court would h ave been require d to conduct a Krankel inquiry . We find defe ndant’s attempt to ra ise a matter at the postplea hear ing distinguishes this case from the case s wher e the defe ndants never attempted to raise the claim in court (see Jock o , 239 I ll. 2d at 94, 940 N.E.2d at 63; People v. Allen
, 409 I ll. App. 3d 1058, 1077, 950 N.E.2d 1164, 1182 (2011); People v. Lewis , 165 I ll. App. 3d 97, 109, 518 N.E.2d 741, 749 (1988))

. Acc o rdi ng ly
, since the trial court ref used to allow defe ndant to raise a

matter at the postplea hea ring
, defe ndant’s fa ilure to bringthe letter to the cour t’s attention does not rende r re mand for a Krankel hear ing unne cessa

ry

. ¶ 21 Now, we examine whether the contents of the letter war rante d a Krankel inquiry

. In the l et t er , defe ndant neither (1) stated he was denied eff ective assistance of counsel nor (2 ) reque sted new counsel. Whil e he raises specific complaints about his attorney ’s perf ormanc e in the Fe bruar

y 2010 letter, defe ndant expressly reque sts to be prese nt at the “pre -trial” but does not reque st new counsel. Def endant is corr ect this is not a case about whether the complaints about counsel wer e specific enoug h. Whil e defe ndant made g ener al alleg ations, he also made specific alleg ations such as (1) counsel’s f ailure to infor

m him of his right to

a confe renc e under I llinois Supreme Court Rule 402 (ef f. J uly 1, 1997) and (2) co u nsel’s lying to defe ndant about the State’s offe rs and the potential sentenc e he would rec eive if he “lost.” Thus, we need not resolve the conflict in case law reg arding bare alleg ations that the parties hig hlighted. T he issue her e is whether defe ndant’s reque st f or relief other than ne w counsel makes a Krankel inquiry unwar ranted. Def

endant’ s complaints appea r to be an explanation of why he soug ht to con tact the judge direc tly to obtain a writ so he could be prese nt at a Marc h 2, 2010, “pre -trial.” As in T a yl o r , d ef endant’ s letter is subject to more than one interpre tation and is not clea rly an ineffe ctive-a ssistance-of -counse l claim. To find defe ndant’s letter was an ine f f e c ti v e

- a s s is ta

n c e

- o f-c ounsel claim would require the trial court to divine defe ndant’s intent since defe ndant had only req uested to be prese nt at the “pre

trial.” Thus, the contents o f d efendant’s letter did not sufficie ntly raise an ineffe ctiveassistance -of- counsel c laim that require d the trial cour t to conduct a Krankel

hear ing.

¶ 22 I I I . CONCLUSI ON ¶ 23 For the rea sons stated, we aff irm the Macon County circ uit court’s judgme nt. As part of

our judgme nt, we awa

rd the State its $50 statutory assessment ag ainst defe ndant as costs of this appeal. ¶ 24 ¶ 25 Affir

med.

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