2023 IL App (1st) 211171-U

No. 1-21-1171 

Order filed October 27, 2023 

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-Appellee, 

 v. 

RUBEN FLEMING

Defendant-Appellant. 

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) 

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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 followed 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 directs them 

to base that verdict on the evidence, not emotions. And the trial court sees that counsel provides 

the accused with effective assistance. 
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¶ 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, 

including prison garb, (ii) left on the jury a former prosecutor who looked hostile, and (iii) lacked 

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, that 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 accounts impacted his credibility. For the 

others, Fleming overlooks reasons apparent in the record for counsel’s actions. So we 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 was 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. We remanded. Id. ¶ 59.

¶ 8 On remand, Fleming retained new counsel, who filed two motions amending the claims 

and adding others. For reasons we will discuss, the circuit court denied Fleming’s claims. We set 

out pertinent parts of the record, claim by claim, before summarizing 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-
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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 squared away.” After another 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 the 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.”
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¶ 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,” and 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 peremptory 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 to 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 critical issue at trial was the identification of the shooter. The defense argued that the 

victim, Desmond James, did not see who shot him and falsely accused Fleming from the stand. In 
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contrast, the State argued the jury should believe James. But the State’s case did not depend on 

James’s credibility.

¶ 24 The State argued that even 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 registered 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 woman 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 older 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 

James, 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 to James, minutes 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. 
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(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 toward a tree, where he collapsed. His supervisor and the police 

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 physically 

assaulting him.”

¶ 29 Ten months later, James identified Fleming in a lineup. And later that day, James spoke to 

a prosecutor and another detective. Although not present, Otto prepared a report containing that 

interview’s contents. The report suggests that 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 cases 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 this 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 the three casings came from the same gun. Counsel for 

Fleming cross-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.)
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¶ 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. Without the State’s input, it determined to hold “a full Krankel hearing.” 

¶ 35 Later, the circuit court learned of an appellate court 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. Third, 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 testimony 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 measurements and expert testimony 

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

or that “an accurate, 250-foot shot required a rifle.”
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¶ 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,” yet 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 

evidentiary hearing). We find that the 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 preliminary 
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inquiry) with Roddis, 2018 IL App (4th) 170605, ¶¶ 47, 51 (holding, hiring of private counsel 

obviates need for preliminary inquiry).

¶ 45 Still, contrary to the special concurrence’s contention in paragraph 85, 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 82 and in footnotes two and three, the circuit court 

did not fail to conduct a preliminary Krankel inquiry, even if the proceedings then dragged as the 

parties and circuit court took 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). The circuit court honored this duty. People v. Golen, 2015 IL 

App (1st) 133433, ¶ 9 (applying de novo review).

¶ 47 Rejection 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) had 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. Strickland, 466 U.S. at 687-89. 
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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 the record. People v. Johnson, 208 Ill. 2d 118, 129 (2003).

¶ 50 But we do not affirm because Fleming forfeited claims, as the 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 party’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). We assess Fleming’s

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

denying 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 letting 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). The 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 special 
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concurrence’s assertion in paragraph 91, Fleming rightly focuses on counsel, for “it is through 

counsel that the accused secures his other rights.” Kimmelman v. Morrison, 477 U.S. 365, 377 

(1986). Counsel must not present the accused in prison garb.

¶ 54 But Fleming’s claim amounts to little more than speculation 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. As set out in his pro se letter, his initial claim 

was that counsel forced him to wear “[b]rown DOC pants.” Then, at the initial inquiry, Fleming 

admitted he wore the pants inside-out, having heard counsel say that the judge. Only at that hearing 

did Fleming first assert that prospective jurors 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 lot of buttons missing and ketchup stains and stuff like that.” On 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. On remand, Fleming 

testified his outfit was visible to all prospective 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, the record shows the success of this claim depended on Fleming’s testimony, but 

Fleming’s account morphed, impacting his credibility. People v. Morgan, 212 Ill. 2d 148, 165 
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(2004) (finding no manifest error where record facts and circuit court’s observations supported 

rejection of recantation testimony). By rejecting his testimony, the 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 reactions 

by specific people. There is no evidence of prospective jurors looking at him rather than counsel 

or the court. Likewise, he presented no evidence about what inferences these 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. The 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. All 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 All this left the jury speculating about a mystery shooter appearing in a “couple of 

minutes.” Speculation offers no basis for finding a reasonable probability that the jury would have 
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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 Juror 

¶ 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 demeanor, counsel agreed with Fleming to strike Rami. And because counsel later 

acknowledged having mistakenly failed to strike Rami, counsel’s actions were “objectively 

unreasonable,” and the circuit manifestly erred by rejecting this claim.

¶ 64 Jurors must act without 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 Emotional bias underlies this claim. As Fleming describes 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,” striking 

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. At the initial Krankel inquiry, Fleming 

asserted that counsel admitted making a mistake by not striking Rami, but not until remand did 
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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 rejected 

unrebutted, unimpeached, plausible testimony). Fleming insists his testimony was plausible and 

unrebutted. People v. Relwani, 2019 IL 123385, ¶ 18 (basing judgment on something other than 

evidence is manifest error). We disagree. The record shows Fleming’s accounts 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). The 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 claim. 

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,

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

gun.” Likewise, counsel 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 and 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’s 
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claims do not concern significant impeachment evidence, and we find no fault with counsel’s 

actions.

¶ 71 Fleming hones 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 James testified to having 

identified Fleming as the shooter that same day. See People v. Piatkowski, 225 Ill. 2d 551, 567 

(2007) (noting, reliability of eyewitness identification turns partly on time between crime and 

confrontation). 

¶ 72 James spoke to Detective John Otto after the shooting 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, impeachment on this 

point related indirectly to the key issue at trial—identification. Effective counsel could have 

forgone the minor tactic Fleming now trumpets. Zambrano, 2016 IL App (3d) 140178, ¶ 24. 

Counsel 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 short 
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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, James 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 establishing 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. Counsel 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. This 

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. The circuit court’s denial 

of these claims was not error, much less manifest error.

¶ 78 Affirmed.

¶ 79 JUSTICE LAVIN, specially concurring:
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¶ 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 opposite 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. Instead, 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.
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¶ 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 defendant’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 directly 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 appellate 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 demonstrate that the 

defense on remand had requested first a preliminary hearing. 

 During the subsequent status hearings, 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 

longer 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 evidentiary hearing under Krankel

without the State’s input. 
No. 1-21-1171 

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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 omitted); 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 judicial 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 counsel 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 ineffective 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 

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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 mandate.” 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 remand 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 remedy 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 to
No. 1-21-1171 

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¶ 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 Krankel. 

¶ 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 adjudicative 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 

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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 issue, 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 direct 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 claims

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 merits, 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 initial
No. 1-21-1171 

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Krankel hearing is essentially 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. Defendants’ attorneys essentially verified these facts. These

observations from the individuals present at trial support the Krankel court’s determination 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 clothing; 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 shirt and pants similar to that

worn by surgeons was not identifiable prison garb). 

¶ 93 To the extent the majority draft addresses defendant’s contention that his counsel was

ineffective for failing to establish an alleged rifle was used in the shooting, I would add that
No. 1-21-1171 

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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 presumed 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.