2021 IL App (4th) 200629-U 

NO. 4-20-0629 

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

 v. 

ERIC KITURE, 

Defendant-Appellant. 

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Appeal from the

Circuit Court of

Adams County 

No. 16CF541 

Honorable 

Michael L. Atterberry, 

Judge Presiding.

 

 JUSTICE TURNER delivered the judgment of the court.

 Justices Harris and Holder White concurred in the judgment.

ORDER

¶ 1 Held: The circuit court’s decision to not appoint defendant new counsel for his pro se

claims of ineffective assistance of trial counsel was manifestly erroneous.

¶ 2 After a December 2016 trial, a jury found defendant, Eric Kiture, guilty of 

aggravated domestic battery (720 ILCS 5/12-3.3(a-5) (West 2016)). At an April 2017 sentencing 

hearing, the Adams County circuit court sentenced defendant to seven years’ imprisonment and 

defendant mentioned having an ineffective assistance of counsel claim. Defendant filed pro se a 

motion to reconsider his sentence, in which he claimed his trial counsel was ineffective. At the 

July 2017 hearing on the motion, defendant was represented by trial counsel and the court did 

not address defendant’s ineffective assistance of counsel claim before denying defendant’s 

motion. Defendant appealed and argued, inter alia, the circuit court erred by failing to make an 

inquiry into his ineffective assistance of counsel claim in accordance with People v. Krankel, 102 

NOTICE

This Order was filed under 

Supreme Court Rule 23 and is 

not precedent except in the 

limited circumstances allowed 

under Rule 23(e)(1). 

FILED

September 15, 2021

Carla Bender

4th District Appellate

Court, IL
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Ill. 2d 181, 464 N.E.2d 1045 (1984). The State conceded defendant’s case needed to be 

remanded for a Krankel inquiry, and this court agreed. People v. Kiture, No. 4-17-0592 (Nov. 

27, 2019) (unpublished summary order under Illinois Supreme Court Rule 23(c)). 

¶ 3 In November 2020, the circuit court had jurisdiction of the cause and conducted a 

Krankel inquiry. Defendant raised numerous claims of ineffective assistance of trial counsel. 

After hearing from both defendant and trial counsel, the court declined to appoint defendant new 

counsel and denied defendant’s ineffective assistance of counsel claims. Defendant again 

appeals, asserting (1) the circuit court erred by failing to make an adequate Krankel inquiry and 

improperly denied defendant new counsel, (2) he was denied effective assistance of trial counsel 

because counsel labored under a conflict of interest, (3) he was denied effective assistance of 

trial counsel because counsel failed to impeach a state’s witness with his prior inconsistent 

statement, and (4) he was denied a fair trial based on prosecutorial misconduct. We reverse and 

remand for further proceedings on defendant’s pro se ineffective assistance of counsel claims. 

¶ 4 I. BACKGROUND

¶ 5 On September 8, 2016, the State charged defendant by information with one count 

of aggravated domestic battery, which asserted defendant strangled Nikkole Conway with his 

hands around her neck and, in doing so, impeded Conway’s normal breathing or circulation. See 

720 ILCS 5/12-3.3(a-5) (West 2016). That same month, the circuit court held a preliminary 

hearing, at which the State presented the testimony of Quincy police officer Kyle Hatch. Only 

the testimony relevant to the issues on appeal follows. Officer Hatch testified he was the third 

officer at the scene and spoke with Conway. He observed “red marks and scratches on the left 

side of her neck, as well as a large welt on her left shoulder.” 

¶ 6 In December 2016, the circuit court held a jury trial on the single charge. The 
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State presented the testimony of Conway and Officer Hatch.

¶ 7 Conway testified she had known defendant since 2009 or 2010. She started 

dating him in 2016, and they began living together. In August 2016, they moved into a room at 

the Welcome Inn. The room had two beds, a table, a sink, and a separate bathroom with a toilet 

and bathtub. On September 6 or 7, 2016, Conway’s mother, Rebecca Cox, was also in the hotel 

room. That day, Conway needed the Illinois Link card that defendant possessed and woke him 

up to get it. Defendant appeared angry and called her a “bitch.” They began yelling at each 

other, and defendant stood up next to the bed. Conway attempted to leave the hotel room, and 

defendant stood in front of the door to prevent her from leaving. Defendant then grabbed 

Conway by the shirt and pulled her into the bathroom. There, defendant was “choking” Conway 

with one hand. He used the other hand to keep the door shut because Cox was trying to open it. 

Cox was also screaming at defendant to let Conway go. At one point during the altercation, 

Conway was unable to breathe. Eventually, defendant let her go. A maintenance man came to 

the hotel door and asked if everything was okay. Defendant told the maintenance man it was 

okay. 

¶ 8 Conway was eventually able to get out of the hotel room and go to the door of 

Althea Buckner, a friend who was also staying at the hotel. There, Conway sat down and asked 

Buckner for help. Defendant came after Conway, and when he reached her, he leaned over and 

told Conway the following: “Bitch, you got to the count of three. If you don’t get up, I’m going 

to knock you out.” Buckner told defendant not to act like that in front of her kids and she was 

going to call the police if defendant did not stop. Defendant did not stop, and Buckner told 

defendant the police were coming. At that point, defendant drug Conway by her hair back to 

their hotel room. After they returned, Conway and Cox left the hotel room, and defendant 
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proceeded to follow them.

¶ 9 Conway further testified Officer Hatch arrived and got out of his car. He directed 

Conway to come over to him. Conway went to the officer, and defendant stayed to the side. 

Conway told Officer Hatch what had happened. Conway testified she knew she had a black eye 

and her left shoulder was completely bruised. Officer Hatch took photographs of Conway’s 

injuries. Conway identified her injuries in Officer Hatch’s photographs during her testimony. 

She denied having the injuries before the incident. Conway stated the incident with defendant 

was ongoing for two hours. She denied drinking and using drugs before the incident. Conway 

did not seek treatment for her injuries and did not file a petition for an order of protection after 

the incident. Conway explained she did not think it was necessary because defendant had been 

incarcerated.

¶ 10 Officer Hatch testified he got a call for a disturbance from the hotel’s front desk. 

A room number was provided and the name of one of the parties involved was “Nikki.” Officer 

Hatch knew Conway from prior dealings. He located Conway across the street from the hotel 

with her mother and defendant. Defendant continued to talk the whole time saying nothing had 

happened. Officer Hatch noticed red marks on Conway’s neck and Conway seemed frightened. 

He had to separate Conway from defendant and her mother before she would talk. Defendant 

continued to say Conway’s name even when she was away from him.

¶ 11 Officer Hatch described Conway’s injuries as “scratch marks and redness” on the 

left side of her neck. He explained the redness went all the way around her neck. Conway also 

had a welt on her shoulder blade that looked like it was the start of a bruise. He identified the 

photographs he took of Conway. When asked to point out Conway’s injuries, Officer Hatch 

explained, “there was redness, but it doesn’t show up very well on the overhead, but there was 
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redness on the front and all the way around to the back of her neck.” During his testimony, 

Officer Hatch noted two more times the redness went all the way around Conway’s neck. After 

speaking with Conway, Officer Hatch spoke with defendant. When asked how Conway’s 

injuries occurred, he indicated nothing happened and he did not know how the injuries occurred. 

Defendant did admit he grabbed Conway by the arm and picked her up. Officer Hatch also

spoke with Conway’s mother who briefly stated what she had seen inside the hotel room.

¶ 12 After hearing the parties’ arguments, the jury found defendant guilty of 

aggravated domestic battery.

¶ 13 In January 2017, defendant filed a timely posttrial motion, asserting (1) the circuit 

court erred by barring evidence the victim’s mother used racial slurs against defendant during the 

altercation, (2) the State mischaracterized the evidence during closing arguments, and (3) the 

State’s evidence was insufficient to prove defendant intentionally impeded Conway’s airflow. 

After a February 2017 hearing, the court denied defendant’s posttrial motion.

¶ 14 In April 2017, the circuit court held defendant’s sentencing hearing. The court 

noted it was not going to sentence defendant according to the extended-term sentencing 

provisions and then sentenced defendant to seven years’ imprisonment. At the end of the 

hearing, defendant noted he would be filing a motion to reconsider and filing a claim of 

ineffective assistance of counsel. Defendant filed pro se a motion to reconsider his sentence, in 

which he argued, inter alia, his sentence was excessive, his sentence violated the proportionate 

penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11), and the trial court 

failed to consider all of the mitigating factors. Defendant also alleged trial counsel was 

ineffective because counsel misunderstood simple sentencing guidelines by first suggesting 

defendant was subject to Class X sentencing and then extended-term sentencing. He asserted, if 
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counsel would have known the correct sentencing guidelines, he would have received a more 

favorable plea offer from the State. In July 2017, the circuit court held a hearing on defendant’s 

pro se motion to reconsider his sentence, and trial counsel represented defendant at the hearing. 

After considering the parties’ arguments, the court denied defendant’s motion. 

¶ 15 Defendant appealed, and this court remanded the case for a Krankel inquiry. 

People v. Kiture, No. 4-17-0592 (Nov. 27, 2019) (unpublished summary order under Illinois 

Supreme Court Rule 23(c)). On remand, the circuit court conducted the Krankel inquiry on 

December 31, 2019, which was before our mandate issued in case No. 4-17-0592. Defendant 

appealed again, and this court again remanded the case for another Krankel inquiry because the 

circuit court lacked jurisdiction when it conducted the December 2019 inquiry. People v. Kiture, 

No. 4-20-0032 (May 8, 2020) (unpublished summary order under Illinois Supreme Court Rule 

23(c)). 

¶ 16 On November 11, 2020, the circuit court held another Krankel inquiry. 

Defendant raised numerous claims of ineffective assistance of trial counsel, including trial 

counsel failed to impeach Officer Hatch and Conway with prior inconsistent statements and to 

tender a lesser-included jury instruction. As to the latter claim, defendant noted he asked trial 

counsel about a jury instruction for a lesser charge and counsel responded he could not put the 

jury instruction in because defendant had one count of aggravated domestic battery. After 

defendant set forth his numerous claims of ineffective assistance of counsel, the court invited 

defense counsel to reply. Counsel responded his decisions were based on his trial strategy. After 

trial counsel responded, the court told defendant he had the last word. Defendant added 

additional details to some of his ineffective assistance of counsel claims until the court found he 

was just repeating information. The court found all of defendant’s claims were matters of trial 
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strategy. The court declined to appoint defendant counsel and denied defendant’s ineffective 

assistance of counsel claims.

¶ 17 Defendant again appealed. This court retained jurisdiction of defendant’s direct 

appeal in our prior decision. See People v. Kiture, No. 4-17-0592 (Nov. 27, 2019) (unpublished 

summary order under Illinois Supreme Court Rule 23(c)).

¶ 18 II. ANALYSIS

¶ 19 Defendant asserts the circuit court failed to conduct an adequate Krankel inquiry 

into the bases of his claims of ineffective assistance of trial counsel and improperly denied him 

appointment of counsel. The State disagrees with both contentions. Even assuming the circuit 

court’s Krankel inquiry was adequate, we find the court erred by failing to appoint defendant 

counsel. 

¶ 20 A pro se posttrial claim alleging ineffective assistance of counsel is governed by 

the common-law procedure developed by our supreme court in Krankel and refined by its 

progeny. People v. Roddis, 2020 IL 124352, ¶ 34, 161 N.E.3d 173. “The procedure encourages 

the trial court to fully address these claims and thereby narrow the issues to be addressed on 

appeal.” Roddis, 2020 IL 124352, ¶ 34. Under the supreme court’s procedures, the circuit court 

does not automatically appoint counsel when a defendant presents a pro se posttrial claim 

alleging ineffective assistance of counsel. Roddis, 2020 IL 124352, ¶ 35. Rather, the court first 

examines the factual basis of the defendant’s claim. Roddis, 2020 IL 124352, ¶ 35. In doing so, 

the court considers the merits of defendant’s allegations in their entirety. Roddis, 2020 IL 

124352, ¶ 61. If the court determines 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 claim. Roddis, 

2020 IL 124352, ¶ 35. “However, if the allegations show possible neglect of the case, new 
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counsel should be appointed.” Roddis, 2020 IL 124352, ¶ 35. New counsel can then 

independently evaluate the defendant’s claim and avoid the conflict of interest trial counsel 

would have in trying to justify his or her own actions contrary to the defendant’s position. 

Roddis, 2020 IL 124352, ¶ 36. New counsel also represents the defendant at the hearing on the 

pro se ineffective assistance of counsel claim. Roddis, 2020 IL 124352, ¶ 36. When the court 

has properly conducted a Krankel inquiry and has reached a determination on the merits of the 

defendant’s Krankel motion, this court will reverse that determination only if the circuit court’s 

action was manifestly erroneous. People v. Jackson, 2020 IL 124112, ¶ 98, 162 N.E.3d 223. 

“Manifest error is error that is clearly evident, plain, and indisputable.” Jackson, 2020 IL 

124112, ¶ 98. 

¶ 21 Additionally, we note courts analyze ineffective assistance of trial counsel claims 

under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Evans, 

186 Ill. 2d 83, 93, 708 N.E.2d 1158, 1163 (1999). To obtain reversal under Strickland, a 

defendant must prove (1) his counsel’s performance failed to meet an objective standard of 

competence and (2) counsel’s deficient performance resulted in prejudice to the defendant. 

Evans, 186 Ill. 2d at 93, 708 N.E.2d at 1163. To satisfy the deficiency prong of Strickland, the 

defendant must demonstrate counsel made errors so serious and counsel’s performance was so 

deficient that counsel was not functioning as “counsel” guaranteed by the sixth amendment (U.S. 

Const., amend. VI). Evans, 186 Ill. 2d at 93, 708 N.E.2d at 1163. Further, the defendant must 

overcome the strong presumption the challenged action or inaction could have been the product 

of sound trial strategy. Evans, 186 Ill. 2d at 93, 708 N.E.2d at 1163. To satisfy the prejudice 

prong, the defendant must prove a reasonable probability exists that, but for counsel’s 

unprofessional errors, the proceeding’s result would have been different. Evans, 186 Ill. 2d at 
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93, 708 N.E.2d at 1163-64. 

¶ 22 One of defendant’s pro se claims of ineffective assistance of counsel raised on 

remand was trial counsel failed to submit a lesser-included jury instruction. Defendant’s 

comments at the Krankel hearing suggest defendant asked counsel about a lesser-included 

offense instruction. Domestic battery is a lesser-included offense of aggravated domestic 

battery. See 720 ILCS 5/12-3.3(a-5) (West 2016) (establishing the commission of domestic 

battery is a necessary element of aggravated domestic battery). Defendant stated defense counsel

told defendant the jury instruction could not be submitted because defendant had only one count 

of aggravated domestic battery. In response, trial counsel stated the following:

“My failure or—my failure to include a lesser included charge jury 

instruction was trial strategy. I will say for the record I never had a conversation 

with [defendant] where I told him that I would or that I had changed my mind and 

that I could not because he only had one charge. I do not believe that 

conversation ever took place. My decision not to include a lesser included jury 

instruction was trial strategy.”

¶ 23 In People v. Brocksmith, 162 Ill. 2d 224, 229, 642 N.E.2d 1230, 1232 (1994), our 

supreme court held a defendant has the exclusive right to decide whether to submit a jury 

instruction on a lesser-included offense at the conclusion of the evidence. There, the supreme 

court reversed the defendant’s conviction on the lesser-included offense because defense 

counsel, rather than the defendant, had made the ultimate decision to tender the lesser-included 

offense instruction. Brocksmith, 162 Ill. 2d at 229-30, 642 N.E.2d at 1233. Here, the State 

acknowledges the decision whether to submit a lesser-included offense instruction was not 

defense counsel’s to make. As such, trial counsel’s actions were not a matter of trial strategy. 
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However, the State still asserts the circuit court’s decision not to appoint counsel was proper

because defendant’s claim was still meritless. 

¶ 24 The State first suggests defendant would not have tendered such an instruction if 

he had been allowed to make the decision because defendant did not accept the State’s plea deal. 

The State’s argument is irrelevant since defense counsel did not allow defendant to make the 

decision. Further, defendant’s statements at the Krankel inquiry suggest he desired a 

lesser-included offense instruction. 

¶ 25 The State next argues defendant was not prejudiced by defense counsel’s making 

the decision about the lesser-included offense instruction. It notes “[a] defendant is entitled to a 

lesser-included offense instruction only if the evidence at trial is such that a jury could rationally 

find the defendant guilty of the lesser offense, yet acquit him of the greater.” People v. Medina, 

221 Ill. 2d 394, 405, 851 N.E.2d 1220, 1226 (2006). The State contends the evidence was such 

that the jury would not have convicted defendant of only domestic battery. However, defense

counsel’s theory was Officer Hatch suggested to Conway defendant’s actions impeded her 

breathing. Defense counsel emphasized the injuries to Conway were very minor, which is not 

refuted by the pictures. At the Krankel hearing, defendant asserted other errors by defense 

counsel in impeaching Officer Hatch’s testimony that suggested Conway was strangled. 

¶ 26 Based on the information disclosed at the Krankel inquiry and the record on 

appeal, defendant’s claim of ineffective assistance of counsel based on counsel’s failure to tender 

a lesser-included instruction is not meritless. As such, defendant did show possible neglect of 

his case by defense counsel. The circuit court’s finding to the contrary is manifestly erroneous. 

Thus, we remand defendant’s case for appointment of new counsel to address defendant’s 

ineffective assistance of counsel claims. We need not address defendant’s other claims of 
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ineffective assistance of counsel as defendant’s new counsel will be able to independently 

evaluate the merit of those claims. Additionally, we express no view on the ultimate merits of 

defendant’s ineffective assistance claims or on any of his other appellate arguments. As noted in 

our first order, if after a subsequent hearing on the ineffective assistance claims, the circuit court

rejects that claim, then defendant may again appeal, at which point we will address defendant’s

remaining arguments from this appeal and any argument on appeal defendant may raise about the 

circuit court’s determination his trial counsel was not ineffective. See People v. Kiture, No. 4-

17-0592 (Nov. 27, 2019) (unpublished summary order under Illinois Supreme Court Rule 23(c)). 

“To avoid confusion in the event of a subsequent appeal, we retain jurisdiction over this matter 

pursuant to Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994).” In re T.R., 2019 IL App 

(4th) 190051, ¶ 51, 127 N.E.3d 1157. 

¶ 27 III. CONCLUSION

¶ 28 For the reasons stated, we reverse the Adams County circuit court’s denial of 

defendant’s ineffective assistance of counsel claims without the appointment of counsel and 

remand the cause for further proceedings consistent with this order. 

¶ 29 Reversed and remanded with directions.