20 23 IL App (1st) 2 1 1171

- U No. 1 -21-1171 Order f iled October 27, 20 23 Sixth Division NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS ,
Plaintiff -Appell ee ,

v.

R UBEN FLEMING

Defendant -Appell ant

. ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County

.

No. 11 CR 12551

Honorable Arthur F. Hill , Jr., Judge, presiding.

JUSTICE HYMAN delivered the judgment of the court. Justice Pucinski concurred

. Justice Lavin specially concurred.

ORDER
¶ 1 Held: Affirmed, where the circuit court had jurisdiction to hold an evidentiary hearing when it follow ed this court’s mandate and did not manifestly err by denying petitioner’s Krankel claims

. ¶ 2 The constitutional rights to counsel and a jury trial, while paramount, do not alone protect
the accused. Jurors must presume innocence before reaching a verdict. The trial court direct s them
to base that verdict on the evidence, not emotions. And the tria l court see s that counsel provide s
the accused with effective assistance

.No. 1 -21-1171

- 2 - ¶ 3 Ruben Fleming claims several errors undermined these bulwarks and seeks a new trial

. He

claims his counsel (i) forced him to appear before prospective jurors in unkempt clothing,

inc luding prison garb , (ii) left on the jury a former prosecutor who looked hostile , and (iii) l acked

facts needed to discredit the victim’s testimony in two ways

. ¶ 4 While Fleming’s claims are serious , sound reasons support denial. We cannot find, as we

must, t hat the truth of his claims is clearly evident, plain, and indisputable. The record shows some claims depend on Fleming’s word alone, but Fleming’s account s impacted his credibility. For the
others, Fleming overlooks reasons apparent in the record for coun sel’s actions. So w e must affirm.
¶ 5 Background
¶ 6 Fleming appeals for a second time. In the earlier appeal, we rejected claims (i) the victim’s

identification of him w as unreliable and thus insufficient proof of guilt and (ii) the State committed

misconduct during closing arguments. People v. Fleming , 2016 IL App (1st) 141355

- U, ¶ 35, 40.
¶ 7 But we agreed that a new judge should conduct a “preliminary Krankel inquiry.” Id. ¶ 59.

The Krankel process began after trial when Fleming wrote a letter to the trial court complaining

about counsel. The trial court then did what it may not: allowed the State to participate during the
inquiry into those claims. Id. ¶ 57. W e remanded. Id. ¶ 59.
¶ 8 On remand, Fleming retained new cou nsel, who filed two motions amending the claims
and adding others. F or reasons we will discuss, the circuit court denied Fleming’s claims. We set
out pertinent parts of the record, claim by claim , before summariz ing the proceedings on remand.
¶ 9 Fleming’s clothing
¶ 10 Before prospective jurors appeared in the courtroom, the trial court asked counsel about
Fleming’s clothing. One of Fleming’s two attorneys replied that he had “a shirt” for him, and co

-No. 1 -21-1171

- 3 - counsel would bring “a set of clothes.” The trial court explained that it would soon bring in the
prospective jurors, give short remarks, and release them for lunch.
¶ 11 But that did not happen. After a break and handling other matters, the trial court directed
counsel to “get [Fleming’s] clothing situation sq uared away.” After a nother break , it recalled the
case and began voir dire. The record does not show when Fleming changed clothes.
¶ 12 In a post

- trial letter, Fleming complained that counsel “forced” him to “introduce [himself]
to the jurors” while “wearing [b ]rown DOC pants,” specifically “the jail uniform issued [] in Cook
County.” He claimed that prospective jurors, those sitting on “the left side of the courtroom,”
“knew [he] was incarcerated.”
¶ 13 At the initial Krankel inquiry, Fleming elaborated , as did one of his attorneys. Fleming
again stated his “brown DOC pants” signaled his custody status, plus that his “button

- up” shirt did
not “look presentable at all.” Counsel recalled Fleming “had a civilian shirt on” and “wore his
DOC” pants “inside out , ” and said, “[T]here was no representation of IDOC [ sic ] on his pants.”
¶ 14 Hearing this, the trial court focused on whether the pants were inside out. Fleming
confirmed they were and that prospective jurors “could still see the stamp on the pants leg” and
infer his custody status from his jail

- issued shoes.
¶ 15 On remand, Fleming wrote in a motion that counsel “forced” him to wear “DOC pants”
“inside out” but “with the DOC markings still visible” and “Cook County Jail shoes.” At the
evidentiary hearing on that motion, Fleming testified that “DOC” appeared “down the right leg,”

and he wore th e pants inside out after protesting to counsel. Also, the long

- sleeve, collared shirt

was a casual blue and white , “with a lot of buttons missing and ketchup stains and stuff like that.”No. 1 -21-1171

- 4 - ¶ 16 Fleming testified that he wore these clothes “[d]uring the jury introduction,” including
some of voir dire but not all. Otherwise, he wore “appropriate attire.”
¶ 17 Former Prosecutor as Juror
¶ 18 A former prosecutor, Zachary Rami, served as a juror. During voir dire, Rami disclosed his
previous employment and said he could “give both sides [] a fair trial.” Counsel did not move to
strike Rami for cause nor exercise a peremptory strike.
¶ 19 In a post

- trial letter, Fleming complained that counsel “boldly lied in [his] face” by telling
him that they had struck Rami from the jury panel. Fleming had noticed Rami’s “stare downs” and
“facial mean muggin.” Fleming asked counsel “to use [his] strike , ” a nd counsel , “said they did
strike him when they didn’t.”
¶ 20 At the initial Krankel inquiry, Fleming said he “felt uncomfortable with [Rami]” because
of his “facial mean mugging, cold stares.” When Fleming conferred with counsel, they agreed to

use a peremptor y strike but did not follow through. Later, according to Fleming, his counsel

admitted that this was error.
¶ 21 On remand, Fleming wrote in a motion that he asked counsel to strike Rami . Counsel
agreed, and later admitted to making a mistake by having failed t o strike Rami . Fleming testified
that counsel had helped him notice Rami “mugging” and “making little faces.” Fleming said at the
hearing that his counsel told him, “We made a mistake ; we must have struck the wrong juror.”
¶ 22 Victim’s Testimony
¶ 23 The critic al issue at trial was the identification of the sho ot er . The defense argued that the
victim, Desmond James, did not see who shot him and falsely accused Fleming from the stand. InNo. 1 -21-1171

- 5 - contrast, the State argued the jury should believe James . But the State ’s ca se did not depend on

James’s credibility.
¶ 24 The State argued that e ven if the jury did not believe James , the circumstances proved guilt.
Undisputed was that (i) James placed a boot on a car with Fleming’s license plate, (ii) Fleming
became violent, swinging a stick at James, who retreated; (iii) Fleming left, and (iv) minutes later,
someone shot James. The State maintained this amounted to proof beyond a reasonable doubt.
¶ 25 James testified that, while working for the city, he booted a car with plates registere d to
Fleming. A woman came outside from a nearby residence, yelling at James. Fleming followed her.
Both asked James to remove the boot. James said he could not, and Fleming began swearing and
threatening violence. Fleming also tried to hit him, but the wo man blocked Fleming. “At that time,
I tried to just put some distance between us,” James said. After James backed away, Fleming swung
a tree branch at him. James went to a nearby intersection and called his dispatcher for police help.
¶ 26 James overheard an ol der man tell Fleming, “Get in the house ; you going to get in more
trouble than you’re already in. You know the police are coming.” James returned to his van as the
older man and Fleming argued. Seeing James, Fleming again grabbed the branch, approached

Jam es, and swore. James went back to the intersection , and Fleming ran toward the residence and
out of his sight. A nearby roofer testified to a similar account, adding that he saw one of the men
remove the car’s license plates before running off

. ¶ 27 According t o James, m inutes later , Fleming emerged from an alley 40 to 50 feet away.
(Counsel for Fleming would focus on this estimate in closing argument.) Fleming extended his
hand at shoulder height with his knuckles pointing toward James. Although James denied seeing

a gun , he heard a “pop.” “[R]ealiz[ing] it was a gun,” James turned, ran, and heard two more pops.No. 1 -21-1171

- 6 - (The nearby roofer heard the shots, too.) One bullet hit James , knocking him to the ground. He felt
pain in his back , rose , and hobbled to ward a tree , where he collapsed

. His supervisor and the p olice

soon arrived. James described the shooter’s clothing to a responding officer.
¶ 28 Later that day, after surgery, James spoke to Detective John Otto, who showed him a photo
array. James testified that he identified Fleming as the shooter. Otto testified on direct examination

to James selecting Fleming’s photo. Counsel for Fleming cross

- examined Otto on this point. Otto
testified that James identified Fleming as “just the person that was verbally and physi cally
assaulting him.”
¶ 29 Ten months later, James identified Fleming in a lineup. And l ater that day, James spoke to
a prosecutor and another detective. Although not present , Otto prepared a report containing that

interview’s contents. T he report suggest s tha t James first identified Fleming as the shooter then

and not the day of the shooting. Counsel did not call the other detective to testify. The court
sustained objections to counsel inquiring of Otto about the report’s contents.
¶ 30 Police collected three cartridge cas e s near the mouth of an alley. A map of the area, which
the State presented during James’ testimony, showed seven houses could separate the intersection
where James stood from the alley where the casings lay. (Counsel for Fleming used th is exhibit, a piece of tape marking off a 40

- foot distance, and an appeal to common sense to argue in closing
that “seven houses away is not even remotely 40 feet.”)
¶ 31 A ballistics expert testified that t he three casings came from the same gun. Counsel for
Fleming cros s- examined the expert and elicited that the gun could have been a handgun or a rifle.
(Counsel argued in closing that common sense suggested shooting James from seven houses away
would be difficult.)No. 1 -21-1171

- 7 - ¶ 32 Police later arrested Fleming

. Fleming provided a false name and resisted being
photographed.
¶ 33 Proceedings on remand
¶ 34 The circuit court received this court’s mandate ordering a “preliminary Krankel inquiry.”
Through hired counsel, Fleming filed motions attacking his trial counsel’s performance. The
circuit court judge, who did not preside over the trial, read Fleming’s first motion and this court’s

decision. W ithout the State’s input , it determined to hold “a full Krankel hearing.”
¶ 35 Later, the circuit court learned of an appellate co urt decision questioning the nature of the
preliminary Krankel process. People v. Roddis , 2018 IL App (4th) 170605, ¶¶ 47, 51 (holding,
hiring private counsel obviates need for preliminary inquiry). The circuit court worked with
counsel and the State to draft a motion seeking this court’s guidance. We declined.
¶ 36 Before the circuit court, Fleming raised three of the four claims he now pursues. First,
counsel forced Fleming to appear “with DOC pants inside out, with the DOC markings still visible,
and Cook County jail shoes.” Second, counsel failed to strike former prosecutor Rami despite
agreeing to Fleming’s request he be excluded. T hird, counsel failed to impeach James with prior
statements. Fleming presented his own testimony supporting the first two issues at an evidentiary
hearing . He also presented the testimo ny of Detective Otto and two stipulations, one from
Detective R. Sullivan and another from a paramedic.
¶ 37 Fleming concedes he forfeited part of the fourth issue he pursues: whether counsel needed
to support further impeachment arguments with crime

- scene meas urements and expert testimony

on firearms. O n remand, the circuit court heard no evidence about “why the type of gun mattered”

or that “an accurate, 250

- foot shot required a rifle.”No. 1 -21-1171

- 8 - ¶ 38 Analysis
¶ 39 This appeal calls for review of an evidentiary hearing under People v. Krankel , 101 Ill. 2d
181, 189 (1984). Fleming raises four claims. To prevail, Fleming must show that the circuit court
manifestly erred by denying these claims. People v. Jackson , 2020 IL 124112, ¶ 98.
¶ 40 Circuit Court Followed Mandate
¶ 41 In the State’s view, this court’s mandate directed the circuit court to conduct “only a
preliminary Krankel inquiry, ” y et the circuit court proceeded as if Fleming had an “automatic right
to a full evidentiary hearing.” Because it “skipped” a step, the State contends that the circuit court
“exceeded its jurisdiction.”
¶ 42 In Fleming’s first appeal, we ordered “a new Krankel hearing before a different judge and
without the State’s adversarial participation[.]” Fleming , 2016 IL App (1st) 141355

- U, ¶ 59. On
remand, a new judge read Fleming’s Krankel motion and our decision and determined , without the
State’s input , to conduct “a full Krankel hearing.”
¶ 43 The State faults the circuit court for “grant[ing] defendant’s motions [ sic ] for an
‘evidentiary Krankel hearing’ and conducting a full evidentiary hearing ,” but does not contend the
claims in Fleming’s first motion failed to show that counsel possibly neglected the case. See

Jackson , 2020 IL 124112, ¶ 97 (requiring court to find “possible neglect” before holding

evidenti ary hearing). We find that t he circuit court complied with our mandate.
¶ 44 As an aside, our directive may have seemed less simple to the circuit court after an apparent
split in authority arose within districts of the appellate court. Compare People v. Reed , 2018 IL
App (1st) 160609, ¶ 51 (holding, appointing new counsel does not obviate need for preliminaryNo. 1 -21-1171

- 9 - inquiry) with Roddis , 2018 IL App (4th) 170605, ¶¶ 47, 51 (holding, hiring of private counsel
obviates need for preliminary inquiry).
¶ 45 Still, c ontrary to t he special concurrence’s contention in paragraph 8 5 , Fleming had an
opportunity to make a showing of possible neglect. Indeed, through hired counsel, Fleming
successfully alleged that trial counsel failed to strike a hostile juror, a claim Fleming supported

with his own recollection of off -the- record facts. People v. Maya , 2019 IL App (3d) 180275, ¶ 36.
And contrary to the contentions in paragraph 8 2 and in footnotes two and three , t he circuit court
did not fail to conduct a preliminary Krankel inquiry, even if the proceedings then dragged as the
parties and circuit court to ok a scholarly detour, attempting to reconcile Reed and Roddis

. ¶ 46 The circuit court may only do what this court ’s mandate permits. PSL Realty Co. v. Granite

Inv. Co. , 86 Ill. 2d 291, 308 (1981). T he circuit court honored this duty

. P eople v. Golen , 2015 IL
App (1st) 133433, ¶ 9 (applying de novo review).
¶ 47 R ejecti on of Fleming’s claims
¶ 48 Fleming claims counsel provided ineffective assistance in several ways. For each claim,
Fleming must make two showings : (i) the action he challenges was not reasonable under prevailing
professional norms ( Strickland v. Washington , 466 U.S. 668, 687

- 89 (1984) ) and (ii) ha d counsel
not erred, there was a reasonable probability of an acquittal. Strickland , 466 U.S. at 687 -89.
Measuring that probability requires consideration of all the evidence before the jury. People v.

McCarter , 385 Ill. App. 3d 919, 935

- 36 (2008). In other words, we ask how an error impacted the
jury’s “overall picture of events.” Id. at 936.
¶ 49 The posture of this case calls for a double dose of deference. We defer to many of counsel’s

on-the- ground choices, taking care not to second

- guess tactics. Stricklan d , 466 U.S. at 687 -89.No. 1 -21-1171

- 10 - And we defer to the denial of Fleming’s claims after hearing them in full unless the claims’ merits
are “clearly evident, plain, and indisputable.” Jackson , 2020 IL 124112, ¶ 98. We may affirm the
denial for any reason apparent in th e record. People v. Johnson , 208 Ill. 2d 118, 129 (2003).
¶ 50 But we do not affirm because Fleming forfeited claims , as t he State argues we should. See
People v. Maya , 2019 IL App (3d) 180275, ¶¶ 19

- 22 (rejecting similar arguments). But more to the point, forfeiture limits a part y’s ability to raise issues, not this court’s power to analyze those

issues and reach a just result. People v. Kliner , 185 Ill. 2d 81, 127 (1998). W e a ssess Fleming’s

claims , many raised nearly a decade ago, and find the circuit court did not manifestly err by

den ying them.
¶ 51 Fleming’s clothing
¶ 52 Fleming argues counsel erred by introducing him to prospective jurors in clothing that
made him “look, at best, like a vagrant[,]” and the circuit court manifestly erred by rejecting this
claim. He contends he wore pants issued by the Department of Corrections , and despite wearing

them inside out, the pants “still displayed the DOC logo.” Also, his shirt was “ketchup

- stained,

buttons- missing, and probably rumpled.” All this prejudiced him, he contends, because “[f]irst
impressions are lasting impressions , ” and this “impression denied [him] the presumption of

innocence.”
¶ 53 Appearing in prison garb undermines the presumption of innocence. Estelle v. Williams , 425 U.S. 501, 503

- 04 (1976). So does lettin g the accused look unkempt. See People v. Steimetz , 287 Ill. App. 3d 1, 7 (1997) (criticizing court for denying brief recess so accused could don civilian
clothing). T he accused have “the right to stand trial with the appearance, dignity , and self

- respect
of [the] free and innocent[.]” In re Staley , 67 Ill. 2d 33 , 37 (1977). So, contrary to the specialNo. 1 -21-1171

- 11 - concurrence’s assertion in paragraph 9 1 , Fleming rightly focuses on counsel, for “it is through

counsel that the accuse d secures his other rights.” Kimmelman v. Morrison , 477 U.S. 365, 377
(1986)

. C ounsel must not present the accused in prison garb.
¶ 54 But Fleming ’s claim amounts to little more than speculat ion that prospective jurors (i) saw
what he claimed they saw and (ii) drew the inferences he claims they drew. The record shows that

he told several versions of events that left the circuit court to speculate about who saw what

. ¶ 55 Consider the “ what :” his clothing and seating

. A s set out in his pro se letter, h is initial claim
was that counsel forced him to wear “[b]rown DOC pants.” Then , at the initial inquiry , Fleming

admit t ed he wore the pants inside

- out, having heard counsel say that the judge. O nly at that hearing

did Fleming first assert that prospective j urors could (i) see the impression of a DOC logo as he

sat at a table , (ii) infer his custody status from his shoes, and (iii) see that his shirt was not
“presentable.” On remand, he added that he stood for a time and wore a blue- and

- white shirt with

“a lo t of buttons missing and ketchup stains and stuff like that.” O n appeal , he adds that his shirt
was “probably rumpled,” too.
¶ 56 What others saw has changed over time, and so too has the “ who.” In the pro se letter
, his

initial claim was that some prospective jurors saw him in those clothes. O n remand, Fleming

testified his outfit was visible to all p rospective jurors.
¶ 57 Fleming contends the circuit court manifestly erred by rejecting his testimony. See People

ex rel. Brown v. Baker , 88 Ill. 2d 81, 85 (1981) (finding manifest error where court rejected
unrebutted, unimpeached, plausible testimony). We disagree.
¶ 58 For one, t h e record shows the success of this claim depended on Fleming ’s testimony , but
Fleming’s account morphed, impact ing his credibility. People v. Morgan , 212 Ill. 2d 148, 165No. 1 -21-1171

- 12 - (2004) (finding no manifest error where record facts and circuit court’s observations supported
rejection of recantation testimony). By rejecting his testimony, t he circuit court could have
properly concluded that Fleming’s clothing was not unkempt, and the prospective jurors could not
identify as prison garb his shoes and inside out pants

. ¶ 59 More importantly, Fleming only testified about what prospective jurors could have seen

when shuffled in and out of the courtroom. Fleming offered no testimony about specific reaction s by specific people

. There is n o evidence of prospective jurors looking at him rather than counsel

or the court

. Likewise, he presented no evidence about what inferences the se prospective jurors

drew from what they saw. Contrary to Fleming’s contention, the circuit court acted within its

discretion by rejecting his claim

. See People v. Motzko , 2017 IL App (3d) 160154, ¶ 18. (noting,
circuit court in “far better position” to assess credibility).
¶ 60 Moreover, even if counsel erred, Fleming offered no evidence showing how his clothing
impacted the jury’s “overall picture of events.” McCarter , 385 Ill. App. 3d at 936. Fleming admits

this error was brief. Against this, the overall picture of events showed the State arguing for the jury
to return guilty verdicts without assessing the credibility of Fleming , who waived the right to
testify and without crediting James ’ identification

. T he State stressed in closing that the undisputed
facts were proof beyond a reasonable doubt of guilt

. James placed a boot on a car with Fleming’s
license plate; Fleming became violent ; James retreated; Fleming also left; and minutes later,

someone shot James. A ll this was substantial evidence of Fleming’s guilt . See People v.

Sutherland , 155 Ill. 2d 1, 25 (1992) (finding overwhelming volume of circumstantial evidence).
¶ 61 A ll this left t he jury speculat ing about a mystery shooter appearing in a “couple of

minutes

. ” S peculation offers no basis for finding a reasonable probability that the jury would haveNo. 1 -21-1171

- 13 - acquitted. McCarter , 385 Ill. App. 3d at 936. Thus, the record justifies the denial on this basis, too.

Johnson , 208 Ill. 2d at 129 (reviewing court may affirm denial for any reason apparent in record ).
¶ 62 Former Prosecutor as Jur or
¶ 63 Fleming’s next claim also amounts to little more than speculation. Fleming acknowledges
former prosecutor Rami’s “words alone” — answers during voir dire

— “did not show bias.” But
Fleming argues he and counsel saw Rami “eyeing [Fleming] strangely” during voir dire. Given

that demeano r, counsel agreed with Fleming to strike Rami

. And b ecause counsel later
acknowledged having mistakenly fail ed to strike Rami , counsel’s actions were “objectively
unreasonable,” and the circuit manifestly erred by rejecting this claim.
¶ 64 Jurors must act with out bias or prejudice. People v. Williams , 164 Ill. 2d 1, 16 (1994) . And

counsel has an obligation to prevent biased and prejudiced people from sitting as jurors

. People v.
Manning , 241 Ill. 2d 319, 336 (2011) (analyzing whether counsel provided ineffective assistance
by failing to strike juror). Jurors must rest their verdict on the evidence, not emotions. See People
v. Thompson , 238 Ill. 2d 598, 610 (2010) (discussing trial principles jurors must follow ).
¶ 65 Em otional bias underlies this claim. As Fleming d escribes it, Rami stared at him or “mean
mugged” him , suggesting Rami harbored bad intent. Fleming contends his “unrebutted testimony”

showed that Rami could not be fair and “counsel failed to do what counsel intended to do,” strik ing
Rami from the jury.
¶ 66 But Fleming’s claim changed over time, and the circuit court could reject the claim on this

basis

. Fleming’s pro se letter stated that he alone noticed Rami’s demeanor and believed counsel
“boldly lied” while conspiring with the State to convict him . A t the initial Krankel inquiry , Fleming

assert ed that counsel admitted making a mistake by not striking Rami, but not until remand didNo. 1 -21-1171

- 14 - Fleming add that counsel had “helped [him] notice” Rami’s demeanor and quote counsel as stating,
“We made a mistake, we must have struck the wrong juror.”
¶ 67 These iterations bear on Fleming’s contention that the circuit court manifestly erred by
rejecting his testimony. Baker , 88 Ill. 2d at 85 ( finding manifest error where court rejec ted
unrebutted, unimpeached, plausible testimony ). Fleming insists his testimony was plausible and

unrebutted. People v. R elwani , 2019 IL 123385, ¶ 18 (basing judgment on something other than
evidence is manifest error)

. We disagree . T he record shows Fleming’s account s impacted his
credibility. Morgan , 212 Ill. 2d at 165 ( finding no manifest error where record facts and circuit
court’s observations supported rejection of recantation testimony ). T he circuit court could have
properly concluded that Juror Rami’s demeanor evinced no bias. Motzko , 2017 IL App (3d)
160154, ¶ 18 ( noting, circuit court in “far better position” to assess credibility ). Thus, contrary to
Fleming’s contention, the record contains a basis to affirm the circuit court’s denial of this clai m.
Johnson , 208 Ill. 2d at 129 (reviewing court may affirm denial for any reason apparent in record ).
¶ 68 Victim ’s Testimony
¶ 69 Fleming argues counsel lacked facts needed to pursue key parts of the defense. In his view,

c ounsel “tried, but failed, to show” James “changed his story as to whether he saw Fleming with a

gun. ” Like wis e, c ounsel tried and failed to show that “at least 250 feet separated James from the
shooter” and “such a long shot likely required a rifle.”
¶ 70 Both claims concern impeachment an d require Fleming to rebut a presumption counsel
acted strategically. People v. Zambrano , 2016 IL App (3d) 140178, ¶ 24 (rebutting presumption
requires showing “no effective defense attorney would have pursued [] strategy”). Still, Fleming’sNo. 1 -21-1171

- 15 - claims do not concern significant impeachment evidence , and we find no fault with counsel’s

actions.
¶ 71 Fleming hon es in on whether counsel impeached James’ testimony that he identified
Fleming as holding a gun not on the day of the shooting but 10 months later . With this narrow
focus, Fleming sells short counsel’s successful impeachment after Jam e s testif ied to having

iden tified Fleming as the shooter that same day. See People v. Piatkowski , 225 Ill. 2d 551, 567
(2007) (noting, reliability of eyewitness identification turns part ly on time between crime and
confrontation).
¶ 72 James spoke to Detective John Otto after the shootin g and viewed a photo array. At trial,
James testified that he identified Fleming as the shooter during that conversation

. But counsel

elicited from Otto on cross

- examination that James identified Fleming as “just the person that was
verbally and physically assaulting him.” This mattered because the first encounter by the car was
a verbal and physical assault ; the second encounter away from the car involved the shooting. In
context, Otto’s testimony was a powerful blow to James’ credibility

. ¶ 73 Fleming underscores that point by nitpicking counsel’s impeachment about a much later
statement. Fleming argues counsel should have impeached James’ testimony that he told officers

10 months after the shooting that he saw Fleming holding a gun

. At best, i mpeachment on this
point relate d indirectly to the key issue at trial —i dentification

. E ffective counsel could have
forgone th e minor tactic Fleming now trumpets. Zambrano , 2016 IL App (3d) 140178, ¶ 24

. C ounsel did not err.
¶ 74 Next, Fleming weaves stray lines from the record to fault counsel for not proving the
shooter stood far away while likely holding a rifle, not a handgun. Once again, he sells shortNo. 1 -21-1171

- 16 - counsel’s attacks on James’ identification

. See Strickland, 466 U.S. at 691 (noting, reasonable
decisions make investigations unnecessary).
¶ 75 Counsel exploited conflicts within the State’s evidence

. James testified he saw Fleming
emerge 40 to 50 feet away , pointing his hand in a way that suggested he was holding a handgun.
Nevertheless, J ames marked a map showing that seven houses could separate the location at which
he stood from where Fleming appeared and where the cartridge cases lay

. This evidence conflicted , obviating counsel’s need to measure that distance. See People v. Bradford , 106 Ill. 2d 492, 499
(1985) (noting, impeaching evidence destroys credibility rather than establish ing truth of
impeaching evidence). Indeed, counsel marked off a 40

- foot distance in closing argument without
objection and contended , “ [S] even houses away is not even remotely 40 feet.” Counsel did not err

. ¶ 76 In addition, Fleming contends counsel needed to call a ballistics expert to prove the weapon

the shooter held was likely a rifle, not a handgun. Counsel , however, made a similar point to the
jury

. C ounsel elicited from the State expert that a rifle could have fired the casings recovered by
the police

. Counsel then argued a shot like the one James’ described on the stand

— at the distance

he marked on the map, holding what he inferred Fleming held

— would have been difficult. Th is
evidence and argument undercut James’ credibility and , with it, his identification of Fleming . That
Fleming now imagines new ways to raise old points does not support a finding counsel erred.
¶ 77 Even if counsel erred, Fleming cannot show prejudice. For our noted reasons, the State
presented substantial circumstantial evidence that Fleming shot James . T he circuit court’s denial

of these claims was not error , much less manifest error.
¶ 78 Affirmed.
¶ 79 JUSTICE LAVIN , specially concurring:No. 1 -21-1171

- 17 - ¶ 80 I agree with the circuit court’s determination that, following the evidentiary hearing under

Krankel , defendant failed to establish his private trial attorneys were constitutionally ineffective.

That decision was not manifestly erroneous. See Jackson , 2020 IL 124112, ¶ 98; see also People

v. Relwani , 2019 IL 123385, ¶ 18 (noting, a finding is against the manifest weight of the evidence
only if the oppos ite conclusion is clearly evident or if the finding itself is unreasonable, arbitrary,

or not based on the evidence). I write separately because for the reasons to follow, I do not believe

the circuit court properly complied with the appellate court mandate, although this error did not

then oust the circuit court of jurisdiction as the State argues. ¶ 81 As to the mandate in the direct appeal, this court wrote:

“ Here, the record shows that the [trial] court allowed the State to respond to

defendant’s pro se arguments of ineffective assistance of trial counsel during the
preliminary Krankel inquiry. Following the State’s response, defendant was allowed to argue in

rebuttal. The trial court erred in allowing the State to confront and challenge defendant’s claims

when defendant was not represented by counsel. *** Accordingly, pursuant to [ People v. Jolly ,
2014 IL 117142, ¶ 38], we remand for a new preliminary Krankel inquiry before a different judge

and without the State’s adversarial participation.” People v. Fleming , 2016 IL App (1st) 141355-
U, ¶ 57; see also Jolly , 2014 IL 117142, ¶ 46 (issuing said remedy). 1

Whether a court properly conducted a Krankel preliminary inquiry presents a legal question
warranting de novo review. People v. Jackson , 2020 IL 124112, ¶ 98.

1 The majority omits any citation to paragraph 57 of the direct appeal, which specifically spells out what is required on remand. In stead, the majority cites only the direct appeal order’s conclusion, which among other things affirms the judgment and requires a “new Krankel hearing.” However, the majority fails to acknowledge that the conclusion incorporates paragraph 57 with the words, “[f]or the
reasons stated.” Fleming , 2016 IL App (1st) 141355- U, ¶ 57, 59-60. Moreover, the court on remand specifically read paragraph 57 into the record.No. 1 -21-1171

- 18 - ¶ 82 Here, the record unequivocally shows that the circuit court on remand failed to conduct the
preliminary inquiry as directed (see Fleming , 2016 IL App (1st) 141355- U, ¶ 57) and instead
automatically permitted new private counsel leave to appear on defen dant’s behalf. The court then

cited its own allowance of new counsel as the basis for having “satisfied Krankel ” and the mandate.
Following numerous status hearings, wherein the court and attorneys for both the State and defense
expressed confusion as to what was required by the mandate, the cause proceeded di rectly to a full
evidentiary Krankel hearing on defendant’s ineffective assistance of trial counsel claims raised

pursuant to his amended motion for a Krankel hearing. 2
¶ 83 Yet, our supreme court has long held in People v. Moore , 207 Ill. 2d 68, 77-78 (2003) that :

“ New counsel is not automatically required in every case in which a defendant presents

a pro se posttrial motion alleging ineffective assistance of counsel. Rather, when a defendant

2 Contrary to the State’s contention otherwise, defendant’s Krankel counsel did indeed orally request “an initial hearing where the state [ sic ] doesn’t participate and Your Honor makes a judgment call of whether or not we will proceed to a full Krankel [ sic ] hearing.” In a later status hearing on March 12, 2019, after defense counsel had filed a Krankel motion, the court asked counsel whether the appellate court had already decided some of the issues he was raising. Counsel responded: “I understand what you’re saying Judge. My understanding was it’s suppose[d] to be a full Krankel [ sic ] hearing [ sic ] back here though.” The court stated that “of course we’re going to have a full hearing at least at some point on this case regarding Krankel [ sic ].” Defense counsel then clarified in reference to the ap pellate mandate, “my impression was that they were authorizing a full at least preliminary hearing into whether or not an evidentiary hearing for Krankel [ sic ] would be appropriate.” (Emphasis added.) The judge and defense counsel then agreed to gather more information before deciding how to proceed. Although the State apparently was present at that hearing, it did not participate. These interchanges demons t rate that the defense on remand had requested first a preliminary hearing. During the subsequent status he arings, wherein the parties and the court expressed varying degrees of confusion about the mandate, the circuit court went so far as to propose a motion for the appellate court ’s consideration clarifying how to proceed and also contacted the clerk of the appellate court about the mandate. At one point, the State suggested the case should go back to the original trial court to address a motion for a new trial. Ultimately, the circuit court accepted that the appellate court no long er had jurisdiction and declared that he was “going to conduct a hearing on a motion for new trial based solely on ineffective assistance of counsel.” It’s worth noting that a Krankel motion is distinct from
a motion for a new trial, insofar as a Krankel motion is narrower in scope because it only addresses the matter of ineffective assistance of trial counsel. Based on the foregoing, I also find the record contradicts the majority’s portrayal that the remand court decided to conduct an evidentiar y hearing under Krankel without the State’s input.No . 1 -21-1171

- 19 - presents a pro se posttrial claim of ineffective 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 strategy, then the court need not appoint new counsel and

may deny the pro se motion. However, if the allegations show possible neglect of the case, new counsel should be appointed. The new counsel would then represent the defendant at the hearing

on the defendant’s pro se claim of ineffective assistance. The appointed counsel can independently

evaluate the defendant’s claim and would avoid the conflict of interest that trial counsel would
experience if trial counsel had to justify his or her actions contrary to defendant’s position.” Id

. (citations omit ted); see also Jolly , 2014 IL 117142, ¶ 29, quoting Moore ; see also Jackson , 2020

IL 124112, ¶ 97, citing Jolly and Moore

. ¶ 84 As Jolly noted, a preliminary Krankel hearing should operate as a neutral nonadversarial
proceeding because “a defendant is not appointed new counsel at the preliminary Krankel inquiry.”
Jolly , 2014 IL 117142, ¶ 38. In reaffirming Moore , our supreme court also recently noted that

“even in preliminary Krankel inquiries, a trial court must be able to consider the merits in their
entirety when determining whether to appoint new counsel on a pro se posttrial claim of ineffective

assistance of counsel. This serves both the ends of justice and ju dicial economy.” (Emphasis in
original.) Roddis , 2020 IL 124352, ¶ 61.
¶ 85 Here, as set forth , defendant was never given the opportunity to establish possible neglect

of the case in a nonadversarial proceeding, contrary to the mandate. New coun sel was allowed

absent any analysis as to whether that was necessary or any analysis as to the baseline merits of

the claims. In addition, the court’s failure to conduct a preliminary Krankel inquiry into

defendant’s pro se ineffe ctive assistance of trial counsel claims violated principles of judicial

economy. Defendant first raised his Krankel claim in April of 2013. Following the direct appeal,No. 1 -21-1171

- 20 - the cause appeared before the new judge on remand in August 2017. A proper preliminary hearing

may have disposed of most, if not all, of defendant’s ineffective assistance of counsel claims.
Instead, defendant ’s remand counsel requested original discovery, several witnesses had to be
subpoenaed, and the cause lingered for four more years, including for one additional year due to

Covid delays. It is still lingering on appeal 10 years after the initial Krankel complaint. This is the

very reason why a proper preliminary Krankel inquiry matters. See Roddis , 2020 IL 124252, ¶¶
61, 70 (noting, at the preliminary inquiry stage, a trial court may consider both the facts and legal

merits of a defendant’s pro se posttrial allegations of ineffective assistance of counsel).
¶ 86 In addressing the State’s argument as to the mandate, the majority notes the State “does

not contend the claims in Fleming’s first [ Krankel ] motion failed to show that counsel possibly
neglected the case,” and then goes on to state in a conclusory manner without analysis: “We find

that the circuit court complied with our man date.” See supra , ¶ 43. This is not persuasive. The

content of defendant’s initial pro se Krankel motion is a separate matter from whether the circuit

court on reman d followed the appellate mandate of holding a preliminary hearing. The majority

also cites an “apparent split in authority” as justification for the circuit court’s failure to follow the

mandate. See supra , ¶ 44. However, a simple review of supreme court cases, including Moore and
Jolly , in conjunction with defendant’s direct appeal would have dispelled any confusion. See
People v. Roddis , 2020 IL 124352, ¶¶ 49-56, 70 (reaffirming Moore and reversing the appellate
court judgment). 3 For the reasons stated, I would conclude the circuit court did not comply with

our mandate of holding a preliminary Krankel inquiry.

3 Notably, in Moore , the trial court failed to conduct any preliminary Krankel inquiry, and the supreme court issued the same r emedy on remand as in Jolly

. The Moore court emphasized that it was not remanding the case for a full evidentiary hearing with the appointment of counsel on the ineffective assistance claim: “Rather, we remand the cause for the limited purpose of allowing the trial court toNo. 1 -21-1171

- 21 - ¶ 87 Notwithstanding that conclusion, I disagree with the State’s remaining argument on the

effect of the court’s failure to follow the mandate and thus concur in the majority’s judgment.
Citing the principle that a trial court lacks the authority to exceed the scope of the appellate

mandate ( In re Marriage of Jones , 2019 IL App (5th) 180388, ¶ 23), the State contends that the

Krankel court on remand acted without jurisdiction and therefore its order must be vacated, along

with defendant’s motions for an evidentiary hearing under Kra nkel

. ¶ 88 Here, the circuit court did not, as a result, lose jurisdiction; it still had the power to

determine the case (subject matter jurisdiction) and to bring defendant into its adjud icative process (personal jurisdiction). See People v. Castleberry , 2015 IL 116916, ¶ 12 (noting, jurisdiction

consists of those two elements); see also People v. Price , 2016 IL 118613, ¶¶ 30-31 (reaffirming
Castleberry and noting, “only the most fundamental defects warrant declaring a judgment void”).
Indeed, as set forth, Krankel and its progeny permit a court to proceed to an evidentiary hearing.

See Roddis , 2020 IL 124252, ¶ 53 (noting, Moore establishes a minimum for the initial Krankel
inquiry); People v. Abraham , 324 Ill. App. 3d 26, 30 (2001) (noting, matters that are implied by

the mandate are considered embraced by it). The judgment therefore was not void for lack of
jurisdiction, but rather voidable. See Castleberry , 2015 IL 116916, ¶ 11. A voidable judgment is

one entered erroneously by a court having jurisdiction. Id .; see also People ex rel

. Alvarez v. $59,

914 United States Currency , 2022 IL 126927, ¶ 86 (same).
¶ 89 The trial court’s mistake of law and fact in failing to follow the mandate therefore did not
deprive the circuit court (or this court) of the authority to review defendant’s claims as they relate

conduct the required preliminary investigation. If the court determines that the claim of ineffectiveness is spurious or pertains only to trial strategy, the court may then deny the motion and leave standing defendant’s convictions and sentences.” Moore , 207 Ill. 2d at 81-82.No. 1 -21-1171

- 22 - to the evidentiary hearing. See People v. Cole , 2016 IL App (1st) 141664, ¶ 35 (a court will not

lose jurisdiction because it makes a mistake in determining either the facts, the law or both).
Indeed, in this case, both defendant and the State basically acquiesced to the court’s automatic
appointment of new counsel and proceeding to an evidentiary hearing on defendant’s ineffective

assistance of counsel claims

. To permit the State to now benefit from a position contrary to that

before the trial court would be unjust. See People v. Trice , 2017 IL App (1st) 152090, ¶ 59.
¶ 90 In addition to the majority’s problematic handling of the appellate mandate i ssue, I do not

believe the majority draft adequately addresses the State’s various forfeiture arguments. See

Zander v. Carlson , 2020 IL 125691, ¶ 34 (suggesting forfeiture should be addressed unless there’s
a persuasive reason why a reviewing court should overlook it). For example, the State maintains

defendant forfeited his claim that trial counsel was ineffective for failing to impeach James with

his preliminary hearing testimony. The State notes that this was a matter of record and therefore

could have been raised on direct appeal, while defendant counters that he cannot be faulted for
failing to raise issues in his first di rect appeal due to the very ineffectiveness of his trial attorneys.
Defendant, however, was represented by the State Appellate Defender’s office on his first direct
appeal, and nothing precluded the appellate defender from arguing ineffective assistance cl aims

that were reliant on the record, consistent with our long- time body of case law. See People v. English , 2013 IL 112890, ¶ 22. I would therefore hold the matter forfeited, although even addressing the merits does not help defendant any either.
¶ 91 As to the meri ts, regarding defendant’s prison clothing, I would add that defendant fails to

cite any authority that defense attorneys generally are required to provide or deliver their clients

civilian clothing for trial. Under Illinois law, a defendant need only have an opportunity to secure
civilian clothing. See People v. Wilder , 325 Ill. App. 3d 987, 995 (2001). Also, although the initialNo. 1 -21-1171

- 23 - Krankel hearing is esse ntially a nullity due to the State’s involvement, I still think it’s appropriate

to take into account the observations of the judge who oversaw defendant’s trial. See People v. Wright , 194 Ill. 2d 1, 16 (2000); Bjorkstam v. MPC Products Corp. , 2014 IL App (1st) 133710, ¶

23 (a reviewing court may affirm on any basis in the record, regardless of whether the circuit court

relied on that basis or whether its reasoning was correct ). In the initial hearing, the trial judge noted

she generally makes “every effort possible to ensure that the jury is completely unaware of the
defendant’s custody status.” She further stated that she would “never   have the defendant

walk out in pants that had Cook County DOC on them[.]” The trial judge recalled that defendant

wore a civilian shirt and beige khaki pants, and there was “no hint that he was in custody.” The

court stated, “** * I want to make very clear, there’s no marking on those pants. He’s behind the

table where you can’t even see.” Additionally, she observed that defendant’s attorneys were experienced criminal attorneys who would have sought a continuance had defendant appeared in

DOC clothing before the jury. Defen dants’ attorneys ess entially verified these facts. These

observations from the individuals present at trial support the Krankel court’s determi nation on

remand.
¶ 92 I find that on this record, defendant has failed to establish, first, that he was even dressed

in identifiable prison attire before the jury; second, that his attorneys could be held deficient for
not providing him cloth ing; and third, any possible prejudice in this case, even assuming the latter
point was proven. See Lee, 325 Ill. App. 3d at 652; People v. Medley , 111 Ill. App. 3d 444, 448
(1983) (noting, the defendant’s clothing consisting of a pale green shir t and pants similar to that

worn by surgeons was not identifiable prison garb).
¶ 93 To the extent the majority draft addr esses defendant’s contention that his counsel was
ineffective for failing to establish an alleged rifle was used in the shooting, I would add thatNo. 1 -21-1171

- 24 - defendant has not submitted to this court any trial exhibits, let alone any of the exhibits referenced

in the posttrial motion or at his Krankel hearing. Yet, it is defendant’s burden as the appellant to provide a sufficiently complete record on appeal so that this court can be fully informed about the
issues, and absent a complete record, it is presum ed the trial court’s judgment conforms to the law

and has a sufficient factual basis. People v. Carrion , 2020 IL App (1st) 171001, ¶ 34. In other
words, any doubts arising from this incomplete record are resolved against defendant. See id

. ¶ 94 For the reasons stated, I specially concur in the judgment.