FIFTH DI VISI ON November 20, 2009

1-08-0383

THE PEOPL

E OF THE

STATE OFIL

LI NOI S, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Co ok Co un ty. ) v. ) 06 CR 27445 ) DANIEL VA

RGAS, ) The Honorable ) Thomas P. Fecarotta, Defend ant-App ellant. ) Judge Presiding ) PRESID ING

JUSTICE

TOOMI N deliver ed the opi nion of the

court: In this case, we must consider whe ther the trial judge gave a dequate attention to a pro se defenda nt’s posttr

ial claim of ineff ective a ssistance

of counse l. Following a jur y tr ial, def endant, Daniel Vargas, was found g uilty of first deg

ree murder, attempted first degre e murder, and aggravated discha

rge of a firearm and ultimately sentenced to concurrent terms of 50, 26, and 6 years’ imprisonment. On appeal, he contends: (1) the trial court’s examination of the venire wa s insuffic ient; (2)the State ’s closing argume nt was impr

oper; (3 ) his pro se

allegations of ineffective assistance of counsel wer e not adequately

addressed; (4) his conviction for agg ravated discharge of a firear

m violated the one-act, one-crime rule; and (5) improper fines were assessed against him. The State concedes: (1) that the conviction for aggravated discha

rge of a firearm violates the one-act, one-crime rule; and (2) that certain of the fines imposed were improper. F or the rea sons here in, we re

mand with d

irection s.1-08-0383

2 BACKGROUND The eve nts givin g rise t o defend ant’s pr osecution occurr

ed on Nove

mber 5, 20 06, in Streamwo od, I llinois, when Anthon y ( Tony ) Brown was fata lly shot. Def

endant, a long with David Luna – who is not a party to this appeal – were subsequently charged with first degre e murder, attempte d murder , and aggrava ted discharge o f a fire arm. As no challen ge is ma de as to the su ffici ency of the evide nce, we descri be tho se fact s neces sary for a gen eral un derst andin g. The tria l evidenc e disclos ed that on Novembe

r 5, 2006, Luna

sought to purchas e one-ha

lf pound of ma

rijuana from Joseph

Benitez f or $2,000 . Defen

dant drov e to the me eting with Joseph accompanied by L una, a woman, and defendant’s baby . Joseph rode with them to a parking lot in Schaumburg where L una gave him money

for the marijuana. Joseph exited the car and walked to where he said he was to meet a nother man to get the marijuana, but the person was not there. Joseph counted the money a nd discovered there was only $1,350. Joseph then walked into a grocery

store, called a cab, and returned to his home, ar riving shortly af

ter 7 p.m. Thereafter, L

una called Joseph and was told the money for the purchase was short and that L una would have to wait 15 to 20 minutes or until the following day to get the marijuana. Around 9 p.m., Joseph was in his yard with his friend Tony Brown when defendant and Luna arrived. Tony

knew generally

about the situation between Joseph, Luna, and defe ndant. Michael Benitez, Joseph’s brother, answered the door. Joseph saw defe ndant and Luna in the drivewa y a djacent to the ga rage. Joseph aske d Luna

to wait 15 t

o 20 minute s for his mother to go to sleep so she would not hear what Joseph was doing. Joseph planned to return the $1,350. Joseph approached defendant and L una with Tony following , and defendant pointed a1-08-0383

3

gun at Joseph and demanded his money , but ultimately put the gun down. When defe ndant pulled the gun on Joseph, Tony aler ted Michael to the situation and Michael came out of the house indi cating

that he wo

uld go g et what de fendant wanted. Defend

ant resp onded, “

No one is going inside.” Defend ant then a ttempted t

o run into t

he house , but Tony

grabb ed him and

tried to prevent defendant’s entry and, as he did, defendant drew the g un and shot Tony from less than one foot a way . Tony

was struc k in the chest and st

umbled to the side an

d was shot

again, this time in the back. Defendant shot Tony a third time and ran out of the garag e. Joseph denied that Tony ever

struck defendant and maintained that Tony only tried to block defe

ndant’s entry. Michael, however, testified that Tony struck defendant on the side of the face a s defendant “step ped up ” after Tony trie d to gra b defen dant o r put h im in a bear h ug. As Joseph checked on Tony’ s condition, he heard two additional shots fired outside the garage. Those

shots wer

e fired at Michael, who chased af ter def endant. Accordin

g to Michael, he hear d four shots in the g arage . Then, de fendant ran out of

the gar age, th reatened to kill Michael, and fired a shot past Michael’s his head from a distance of about four feet. L una and defendant then drove off. Defendant was ultimately arrested and agree d to speak to investigators. He engag ed in a conversation that was memorialized on videotape and shown, in relevant par t, to the jury that

su bs ta nt ia ll y co rr ob or at ed th e e yew it ne ss te st im on y. D ef en da nt di d n ot te st if

y. Following arguments and instructions, the jury found defendant guilty . He was subsequently sentence d to concurrent terms of imprisonment of 50 y ears for first degree

murder,1-08-0383

1 Notably, the sentenc e for aggrava ted discharge of a firea

rm is included in the written sentenc ing orde

r. Curious ly, it is nowhe

re mentioned in the

sentenc ing tra

nscript. 4 26 years f or attempted murder, and 6 y ears for aggr

avated discharge of a f

irearm 1 . Defendant now appe als. ANA LYSIS As noted, defendant does not challenge the suf ficiency of

the evidence. His first two claims of error relate to the trial judge’ s questioning of the venire during jury selection and the State’s closing argument. Defenda nt did not object to either contemporaneously . Moreover, only his complaint as to the closing ar gument was specifically

included in his posttrial motion. Consequently, the State contends these claims are forfeited. It is axiomatic that in order to preserve issues for r eview a defendant must object at the time of the claimed error as well as in a posttrial motion. People v . Lewis , 234 Ill. 2d 32, 40, 912 N.E.2d 12 20, 1225 ( 2009); se e also 725 IL CS 5/116-1 ( West 2006) . The fa

ilure to do

so will gener ally result in f

orfeitur e of the c laim on ap

peal; however, f

orfeitur e is not an

absolute bar to our review. Precedent dictates that the rules of f orfeiture present limitations on the parties and not on the reviewing court. People v . Davis , 213 Ill. 2d 459, 470, 821 N.E.2d 1154, 1161 (2004).

Additionally, Supreme Court Rule 615(a), known a s the “plain-error” doctrine, car ves out an exception to permit review of issues otherwise procedurally defaulted. Lewis , 234 Ill. 2d at 42, 912 N. E.2d at 12 26-27; 134 Ill. 2 d R. 615(a

). Our su preme c ourt desc

ribed its o peration in People v. Piatkowski :1-08-0383

5 “[T]he plain-error doctrine allows a reviewing court to consider unpreserved

erro r when (1) a clear or obvious error occurred and the evidence is so c losel y balanced that th e error alon e threatened to tip the scales of justice aga inst the defenda nt, regardless of the serousness of the e rror, o r ( 2) a clear or obvious error

occurs and

that err or is so se rious tha t it affe cted the

fairne ss of the defendant’s trial and challenged theintegrity of the judicial process, regardless of the c loseness of the evidence.” People v. Piatkowski , 225 Ill. 2d 551, 565, 870 N.E.2d 403, 411 (2007), citi ng People v. Herron , 215 Ill. 2d 167, 186-87, 830 N.E.2d 467, 479 (2005). Importantly , “plain error is not limited to cases where the putative error causes the conviction of an innocent person; it also applies to cases where the putative er ror affects the fairness or integrity of

the trial.” Herron , 215 Ill. 2d at 186, 830 N.E.2d at 479. Rule 615 specifically pr

ovides that, “Any er

ror, defect, irregular

ity, or varianc e which does not affect substantial rights shall be disrega rded.” 134 Ill. 2d R. 615(a). “E ssentially, the fairness of the trial must be undermined.” People v. Keene , 169 Ill. 2d 1, 17, 660 N.E.2d 901, 910 (1995). Defendants bear the burden of persuasion under each prong of the doctrine. People v. Naylor , 229 I ll. 2d 584, 5 93, 893 N. E.2d 653, 6 59 (2008) . Where a defenda nt is unabl e to establish plain error, it is incumbent upon us to honor the procedural default. Keene , 169 Ill. 2d at 17, 660 N.E.2d at 910. Necessarily , we must first determine whether an error a ctually occur

red. Lewis , 234 I ll. 2d at 4 3, 912 N.E.2 d at 12 27, ci ting People v. Walker , 232 Ill. 2d 113, 124, 902 N.E.2d 691, 697 (2009). We, therefore, consider the substance of each of defendant’s claims of err or. Walker ,1-08-0383

6

232 I ll. 2d at 12 5, 902 N.E .2d at 697 ; Lewis , 234 Ill. 2d at 43, 912 N.E.2d at 1227. Defendant first asserts that the trial court erre d in its questioning of potential jurors pursuant to Supreme Court Rule 431(b) (Official Reports Advance Shee t No. 8 (April 11, 2007), R. 431(b), eff. May

1, 2007), the so-called Zehr principles. See People v. Zehr , 103 Ill. 2d 472, 469 N.E.2d 1062 (1984). Specifically , defendant contends the trial court’s approac h was insufficient as to the fourth principle, namely , that a defendant’s choice not to testify could not held against him. According to defenda nt, this deficiency wa s especially pre judicial in light of his claim of self-defense. As noted, defendant did not object during voir dire and did not object to the trial judge’s methodology in his posttrial motion. Mindful of the forfeiture considerations discussed previous ly a

nd taking into acc ount the pr

actica l conside rations o f object

ing to a j udge’ s conduct, our forfeiture analysis diverges from our earlier observa tions. See People v

. Sprinkle , 27 Ill. 2d 398, 189 N.E.2d 295 (1963) (recognizing the pra ctical difficulties of contemporaneous objections to a trial judge’ s conduc t); People v. Sims , 192 Ill. 2d 592, 736 N.E.2d 1048 (2000) (same, relying on Sprinkle

analysis). Sprinkle

and Sims guide us that “we will not rigidly apply the waiver rule” under these circumstanc es. People v. Woolley , 205 Ill. 2d 296, 302, 793 N.E.2d 519, 522 ( 2002); People v. Vaughn , 354 I ll. App. 3d 917, 926, 8 21 N.E.2d

746, 754 (2004) (le ss rigid a ppli catio n of wai ver rul e for cl aims o f pote ntial judi cial m iscon duct) , citi ng People v. Davis , 185 Ill. 2d 317, 343, 706 N.E.2d 473, 485 (1998), and People v. Williams , 173 Ill. 2d 48, 85, 670 N.E.2d 638, 656 (1996). Therefore, we conside r defendant’s claim on its merits. As this cla

im calls up on us to con strue a s upreme c ourt rule , our rev iew is de novo

.1-08-0383

7

Robidoux v. Oliphant , 201 Ill. 2d 324, 332, 775 N.E.2d 987, 992 (2002). Likewise, we are reminded of the oft-repeated principle that supre me court rules have the force of law , are not aspirational, and should be adhered to as written. See Bright v. Dicke , 166 Ill. 2d 204, 210, 652 N.E.2d 275, 277-78 (1995). Nonetheless, the violation of a supreme court rule does not

necessa rily mandate revers al and ap

plication of the ha rmless er ror rule is appropriate for use in our assessment. See People v. Glasper , No. 103937, slip op. at 12-13 (June 18, 2009). As noted, our initial charge, then, is to determine whether a ny error occurred. Rule 431( b) provid es as fol lows: “(b) The court shall ask each potential juror, individually or in a group, whether that juror understands and accepts the f ollow ing principles: (1) that the defendant is presumed innocent of the charge( s) against him or her; (2) that before

a defendant can be convicted the State must prove the de fendant gu ilty bey

ond a

reasona ble doubt; (3) that the defendant is not required to offer

any evidenc e on his

or her own b ehalf; a

nd (4) th at the de fendant ’s failur e to testif y c annot be held againsthim

or her; however, no inquiry of a prospe ctive juror shall be made into the defenda nt’s fail ure to te stify

when the defenda nt object s. The court’s method of inquiry sha ll provide each jur or an opp ortunity to respond to specif ic questions conce

rning the princi

ples set o

ut in this s ection .” Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007. In the case sub judice , the trial court posed the following question the venire during the process of jury

selection:1-08-0383

8 “Do all of you understand a nd agreewith the proposition of our law that the defendant does not have to testify on his own beha lf, if he does not wish to; and if he does not, that shoul d not be considere d by you in any way inarriving

at y our verd ict? If y ou will not promise me that, please raise y our hand. Let the record r

eflect no one has raised their right ha nd.” Accord ing to de fendant : “The above comment failed to inform the jury that a defendant’s failure to testify cannot be held against him. Thus, the court failed to satisfy either the purpose or the letter of Rule 431(b) before empaneling the jury.” Moreover, claims defendant, this method of questioning “took on specia l significance” where defendant alternatively

sought a second degree

murder conviction and would, therefore, have the burden of establishing a mitigating fac tor by a pre

ponderance of the evidence. We disag ree. Undeniably, all cour

ts are bound to follow the rules promulgated by our supreme court. See Bright , 166 I ll. 2d at 21 0, 652 N.E .2d at 277 -78. Fur thermore , Rule 431(

b) by its plain language clear

ly mandates inquiry

into the four enumerated areas. See People v. Robinson , 217 Ill. 2 d 43, 54, 83 8 N.E.2d 9 30, 936 (2 005) (“w hether t he forc e of the s tatutory

langua ge is mandatory or pe

rmissive, then ‘shall’ does usually indica te the legislature intended to impose a mandatory oblig ation”); Official Reports Advance Sheet No. 8 (Apr il 11, 2007), R. 431(b), eff. May 1, 2007. The rule

does not identify or dictate a particular methodology

for establishing the understanding or acceptance of the venire as to those principles. Importantly , the rule speaks of “principles” instead of questions. L ikewise, the rule does1-08-0383

9

not set out these principles in the form of questions to be posed in haec verba . Nor doe s the rule provide for any

“magic words” or “cate chism” in order to satisfy its mandate . See Morgan v. Illinois , 504 U.S. 719, 729, 119 L. Ed. 2d 492, 503, 112 S. Ct. 2222, 2230 (1992) (“The Constitution, after all, does not dictate a catechism for voir dire , but only that the defenda nt be afforded an impartial jury ”). The Supreme Court in Morgan further observed: “Even so, part of the guarantee of a def

endant’s right to an impartial jury is an adequate voir dire

to identify unqualified jurors.” Morgan , 504 U.S. at 729, 119 L. Ed. 2d at 503, 112 S. Ct. at 2230, citing Dennis v. United States , 339 U.S. 162, 171-72, 94 L. Ed. 734, 743, 70 S. Ct. 519, 523 (1950). Here, d efenda nt conten ds the for m of inquir

y a dopted by the trial judge w as inade quate to establish the venire’s understanding of the principle. Ac cording to defendant, the inquiry did not employ the prec ise language of rule 431( b). In assessing the c ourt’s approach, we note that the inquiry can logically be broke n down into three distinct parts. The first two components derive from the compound question whether the venire agreed with the principle – notwithstanding the trial cou rt’s use o f the wor

d “propo sition” – a

bout defe ndant’s r ight not t o testify and that h

is choice to do so “should not be considered by you in any

way ar riving at your

verdict.” Third component was the statement, “If you will not promise me that, please ra ise your hand.” While this mig

ht not be the most suc cinct ap proach t o the inqui

ry , we neve

rtheless perceive that it was sufficient to ascertain the unde rstanding and acceptance of the potential jurors of the princ iple arti culated . Manife stly , we belie ve phras ing it as

the trial judge c hose to do, prefaced with the concept of ag reement, fairly

covered both understanding and acc eptance. Moreove r, solicit ing a pr omise from the pros

pective jurors of their ag reemen t with this pr

inciple1-08-0383

10

furth er emph asiz ed the impo rtance of it. By seeking t he ven ire’s agreeme nt and soli citi ng a promise with respect to the matter agree d to, we believe the court sufficiently ascertained whether the venire, individually and collectively, unde

rstood and accepted the principle. Theref ore, the procedu re employe d was subs tantially in accor dance w ith the man

date of Ru

le 431(b). As a final point, we note the failure of defense c ounsel to object to the method or the substance of the inquiry

whether openly

or at sidebar. Defense counsel, as the ke eper and gua rdi an o f th e th eor y of d efe nse , sh oul d ha ve r eco gni ze d a p rob lem if o ne i nde ed e xi st ed. If ascertaining with absolute certainty the understanding and agre ement of each member of the venire was vital to defendant’s case, there was a time and place for exploring those matters. To claim error at this late hour is, in our view, tantamount to unringing the pr overbial bell. As noted, the chime of the bell was not significantly off-key , though not of perfect pitch either. Conseque ntly , we find

no error in the tria

l court’s inquiry and furt her cons ideration as to forfeiture or harmless error is unnec essary. The refore, this claim of error is rejecte d. Next, defendant contends the State’s rebuttal stage of c losing argument deprived him of a fair trial through name-calling, injec ting the prosecutor’s credibility as to defendant’s mental state, and distorting the burden of proof for mitigating first degree murder. As noted, no objection to these

claimed- of errors was ma de at tria l. Similarly

, defend ant did not

raise the se issues with specificity in his motion for a new trial, thoug h he did vaguely

assert error based on inflammatory name- calling. Once again, we first consider first whether error occ urred during the argument such that defendant can ove rcome procedural default. People v. Keene , 169 Ill. 2d 1,1-08-0383

11

17, 660 N.E.2d 901, 910 (1995) (procedural default must be honored w here plain error is not established). Our experience teaches that prosecutors a re afforded wide latitude to comment on the relevant evidence as well as any fair and reasonable inferenc es therefrom. People v. Nicholas , 218 I ll. 2d 104, 1 21, 842 N. E.2d 674, 6 85 (2005) . Never theless, revers ible err

or may be found in a closing argument where the defendant can establish that but for the particular c omment, the verdict would have been different. People v. Leger , 149 Ill. 2d 355, 399, 597 N.E.2d 586, 606 (1992); see also People v. Williams , 313 Ill. App. 3d 849, 863, 730 N.E.2d 561, 573 (2000) (“improper remarks gene

rally do not constitute rever sible error unless they

result in substantial prejudice to the accused”). I mportantly, a prosec

utor’s remarks on rebuttal will not be deemed improper where the record re veals they we

re the product of defense counsel’s provoc ation or invitation. People v. Kliner , 185 Ill. 2d 81, 154, 705 N.E.2d 850, 887 (1998) ; Williams , 313 I ll App. 3d at

863, 730 N .E.2d at 5 73; People v. Williams , 147 Ill. 2d 173, 232, 588 N.E.2d 983, 1005 (1991). In evaluating these

claims we must consider the arguments of eac h side in context and upon the specific facts of this case. People v. Bryant , 94 Ill. 2d 514, 523, 447 N.E.2d 301, 305 (1983); People v

. Bennet t , 304 Ill. App. 3d 69, 72, 710 N.E.2d 445, 447 (1999). When our consideration implicates the legal question of whether a prosecutor’s comments warrant a new trial, our review i s de novo

. People v. Whee ler , 226 Ill. 2d 92, 121, 871 N.E.2d 728, 744 (2007). Defend ant’s cla ims of infl ammatory

name-c alling s tem from t he prose cutor’s

refer ence to the defendant in rather uncomplimentary terms as a coward, a thief, con artist, and as “ weasley1-08-0383

12

[ sic ]”, often

including

the word “little” along w ith those te

rms ( e.g. “little coward,” “little thief,” and “little drug dealer”). Apar t from the “little thief” reference, we discern that each of the other appella tions was s

upported by t he evide nce or a reasona ble infe rence t herefr om ( Nicholas , 218 Ill. 2d at 121, 842 N.E.2d at 685) or was invited or provoke d by the defe ndant’s argument ( Kliner , 185 Ill. 2d at 154, 705 N.E.2d at 887). We initially observe that the evidence showed that Tony Brown, as well a s Michae l Benite z, was phy sically large r than de fendant . Defen se counsel himself argued that defendant e ntered “the proverbial lion’s den” and two of the individuals present were Tony and Michael, described by counsel as “big guy

s.” Additionally, defense c ounsel repeatedly emphasized the theory that de fendant’s actions stemmed from fear. I

n turn, the State referred to defendant as a coward. We perceive that the prosecu tor’s choice of words constituted a f air resp onse to de fendant ’s arg ument. Cowardice

is, in some sense, nothing more than a subset or correlative of fear. A “coward” is define d as “one who shows ignoble fear *** a basely timid, easily frightene d, and easily daunte d person.” Webster’ s Third Ne

w Int ernational Dicti onary

525 (1993 ). The a

rgumen t juxtaposed

to this definition persuades us that it was a fair response to the arg ument defendant’s actions were caused by f

ear. Moreover, it was wholly

consistent with reasonable inferences from the e vidence that defendant was angry

and upset during the series of events leading up to the shooting. Therefore, inferring that defendant was, in fa ct, pusillanimous was appropriate as both a theoretical and practical response to defendant’s ar gument. This comment was not in error. Moreover, that the “little thief” comment was not supported by the evidence or responsive to the State’s arg ument1-08-0383

13

does not a

lter our a naly sis as we d

o not perc eive tha

t isolated comment prejudic ed defe ndant in

an y wa y. Defendant likewise argues the pr osecutor made an issue of his own credibility during the closing argument twice during the rebuttal. First, the prosecutor explained, “This is a case of rage, folks. Thi s man is livi d I g uarante e you.” L ater, the prosec utor state d, “He tr

ied to kill another you ng boy . Luckily

those bull ets missed

because believe me, that’ s what he

wanted to do to Micha

el. Beli eve me.”

Here a gain, these comments wer e clear ly, when con sidered

in context, invited responses to defendant’s closing argument. The y were not in the vein of assurances or sugge stions that the jury believe the prose cutor or expressed his opinions. See People v. Hooper , 133 I ll. 2d 469, 4 92, 552 N. E.2d 684, 6 92 (1989) . Ins tead, the y w ere fa ir responses to defense counsel’s arg ument. A reference to but a brief por tion of defense counsel’s argument warrants this conclusion:

“There was no talking. There was no execution-ty pe coup de grace

shot. He did not chase Anthony B rown through the garage. It happened like that: Pop, pop, pop. It al so shows you that this was not the result of anger. These shots were fired out of fear, pure and simple. Anger , ladies and gentlemen, is: Pow, pow, pow.” Given the nature of the defense arg ument, the prosecutor’s comment takes on a different tenor. Whi le couch

ing his c omments wi

th words o f belief

and gua rantee was not the

best semantic choice, the spirit of his argument was prope rly responsive to def

ense counsel’s argument and within the bounds of proper closing a rgument. See Kliner , 185 Ill. 2d at 154, 705 N.E.2d at 887. The prosecutor’s comments were no more an expression of personal belief or1-08-0383

14

opinion than defense counsel’s onomatopoetic interpretation of the ef fect of emotion on the sound of gunfire. The prosecutor’s c omments were clearly invited and were not in error in any event. Defendant also contends the prosecutor distorted the burde n of proof by “ suggesting incorrectly

that the jury must find that Anthony ’s use of force against [defenda nt] was unlawful and that [d

efenda nt’s] acti ons were

legall y ju stified in

order to find in or

der to fin d [defend ant] guilty of the lesse

r offense of second degr

ee murder.” Moreover, defe ndant contends that because his arg ument con

ceded h is lack of justifica tion, the prosecut

or’s ar guments served t o mislead the jury. We are not persuaded by

this argument. Having reviewed the prosecutor’s comments, we are convinced that they were in no way

intended to or had the effect of misleading the jury . Notably

, defend ant conc edes the

legal a ccurac y of the State ’s arg

ument, but

contends it was misle ading given the c ontext. We a re at a lo ss to disce

rn prec isely

the mean ing of th is comment. Moreover, defendant has failed to cite a ny case la w to support this proposition. As such, and in accordance with our supreme c ourt rules, this argument is properly forfeited. 210 Ill. 2 d R. 341(h) (7); People v. Sutton , 233 Ill. 2d 89, 101, 908 N.E.2d 50, 59 (2009). Having considered each of de fendant’s assignments of error as to the State’ s closing argument, we conclude there was no error. Consequently , defendant’s claims are rejecte d. Next, defe

ndant con tends the trial cou rt erre d when it inadequa

tely address ed his pro se allegations of ineffective assistance of counsel. This issue initially arose in the ea rly stag es of the hearing on defense counsel’s posttrial motion. Defe nse counsel advised the trial judge that defendant asked him “to supplement [the motion] on the record, y our Honor, with two additional1-08-0383

15

allegations, if I may . I have no arg ument on any of it, Judge.” The judge indicated the motion could be supplemented, but it had to be done in writing. The trial judge the n inquired further as to the nat ure of the alleg ations an

d defens e counse l explained that they related to his performance. The judge r esponded, “That’s not something that y ou’re going to file, is it?” Defens e counse l said he was not and further explained

that the o ther alle gation r elated to defendant’s previous attorney . Following the explanation, the trial judge stated: “All right. You may proce ed on your motion for a ne w trial. Actually, this is what we’ re going to do. I want you to prepare y

our motion.” No further comment was made as to defenda nt’s allegations and the trial judge considered each of the allegations in defense counsel’s motion. After the posttrial motion was addressed, the parties moved onto the prese ntence investigation report (PSI) and those ma tters relating to the sentencing hea ring. Once the necessary changes were made to the PSI , defense counsel addressed the trial judg e: “[Defen se counsel]: Jud

ge, my client asked me again just now as y ou walked out for permission to address your Honor.” THE COURT: He’ll have an opportunity to do so. [D ef en se co un se l] : O ka y. THE COURT: In his elocution [ sic ], ab so lu te ly. [D ef en se co un se l] : O ka y. THE COURT: All right. Aggravation.” Each side then offered arg uments in aggravation and mitigation. Then, the f ollowing took place: “THE COURT: Mr. Varga s, is there any th ing you’d like

to say to the1-08-0383

16

Court? This is y

our oppor tunity to address the Court, to help this Court determine what a fair and just sentence would be. THE DEFENDANT: Your Honor, reg arding the issues of the motion, I would like to ad dress the Court and to state it on the record. For the rec ord, your Honor, I wou

ld like to state prior to my trial and prior to ha ving Mr. Minkus

for his services as defe

nse counsel, Mr. Minkus guaranteed he was to g et an obtain records and information I advised -- THE COURT: We can’t hear y ou, sir. You have to speak up. THE DEFENDANT: Sorry , your Honor. Prior to my trial , Mr. Minku s guaranteed

me to get and obtain reco rds and information I advised him was ver y helpful for my

defense strateg y. T hroughout his services, from the day Mr. Minkus

was hired until the day

of my trial, on

several occasions, I

asked for the progress of theserecords and inform a tion by having persona l phone ca

lls with Mr. Minkus, leavingmessag es with his secret ary , and by

letters, which he subsequently neglected

a nd refused to do against my wishes. Also, I asked Mr. Minkus to review he l pfu l information for motion to litigate -- THE COURT: Slow down. The court reporter has to take it down. THE DEF ENDANT: Sorry. Also, I asked Mr. Minkus to review helpf ul informationfor motions to litigate prior to the trial date, which he refu sed to investigate. Even on December 5th in ‘06, when asked by the Hono rable Judg e if there were a

ny motions the

Defens e would lik

e to submit, Mr. Minkus refuse d to ask1-08-0383

17

for a continuance to file what I had previously stated to him way before the scheduled trial date and was told, I quote, ‘I ’m notgoing to do that. We would look foolish.’ Mr. Minkus, obv

iously , has fai led to allow me to help in my own defense. And the only reason why

I did not raise up these issues and bri n g it to the Court’s attention

sooner was because of my

previous experience when I was unabl e to addre ss the Courtpro se to c

hange lawy ers and was told

I wou ld be held in contem

pt of Court

if I spoke without permission. Thank y ou, your Honor. THE COURT: Anything e lse? THE DEFENDANT: No, y our Honor. THE COURT: Thank you. You may be seated.” The trial judge proceeded immediately into sentencing without even a hint of any response to defendant’s grievanc es. While imposing sentence, the trial judge offere d the following comment: “What I don’t get and w

hat I don’t understand is how a per son like [defendant] can just sit there and show no remorse at all. He’s quick to jump on his lawyer *** like he

jumped on *** his first lawyer, be cause he’s not satisfied until he gets a lawy

er in here that will walk him out that door. I’m not stupid, [defendant]. That’s what’s important to [defendant] is to get back on that street.” People v. Krankel , 102 Ill. 2d 181, 464 N.E.2d 1045 (1984), and its proge ny guide our analysis of this final claim of e rror. The evolution of what has been denominated the “ Krankel inquiry” has y

ielded a rule that counsel need not be appointed in every case where a defenda

nt1-08-0383

18

presents a pro se

claim of ineffectiveness. People v . Moore , 207 Ill. 2d 68, 77, 797 N.E.2d 631, 637 (2003). Instead, it is incumbent upon the trial court to examine the claim and its fa ctual underpinnings. Moore , 207 Ill. 2d at 77-78, 797 N.E.2d at 637. Where a pro se claim is determined to be without merit or concerning a matter of trial strategy , there is no need to appoint counsel and denial of the motion is appropriate. Moore , 207 Ill. 2d at 78, 797 N.E.2d at 637. Alternately, if the

allegations demonstrate the possibility of neglect, then counsel must be appointed. People v. Chapman , 194 Ill. 2d 186, 230, 743 N.E.2d 48, 74 (2000). Our review of defendant’s claim of e rror necessarily

turns on the adequacy

of the inquiry made by the trial c ourt. Moore , 207 I ll. 2d at 78 , 797 N.E. 2d at 638; People v . Bull , 185 Ill. 2d 179, 210, 705 N.E.2d 824, 839 (1998). As the question of the adequacy of the inquiry is one of law, our review i s de novo

. People v. Strickland, 363 Ill. App. 3d 598, 606, 843 N.E.2d 897, 904 (2006). Precedent dictates that a trial judge may not simply ignore a c laim of ineffective assistance of counsel. See People v. Sanchez , 329 Ill. App. 3d 59, 66, 768 N.E.2d 99, 106 (2002) (“The tr ial cour t should af

ford a de fendant

the oppor

tunity to specif y a nd suppor t his compla

ints and no t ‘pre cipit ousl y and prema turel y’ deny the mo tion ”), qu otin g People v. Robinson , 157 I ll. 2d 68, 86, 623 N.E.2d 352, 361 (1993). Our supreme court in Moore offere d the f

ollo wing, wh ic h w e p er ce iv e a s a co mp re he ns iv e s ta te me nt of th e b as ic s o f t he in qu ir y: “Duringthis evaluation, some interchange between the tr ial court and trial counsel

re garding the facts and circumstances surrounding the allegedly

ineffec tiv e representation

is permissible and usually nece ssary in assessing what further action,1-08-0383

19

if an y, i s w ar ra nt ed on a d ef en da nt ’s cl ai m. Tr ia l c ou ns el ma y s impl y answer questions and explain the facts and circumstan ces surr ounding the defendant’s allega tions. [Citations.] A brief discussion between the trial court and the defendant may be suffi cient. [Cita

tions.] Also , the tria

l court can base

its evaluation of the defendant’s pro se allegations of ineffective assistance on its knowledge o f defen se counsel’s performance at trial and the insufficienc y of the defendant’s allegations on their face. [Citations.]” Moore , 207 Ill. 2d at 78-79, 797 N.E.2d at 638. In the case sub judice there was utterly no interchange. We note that defendant’s posttrial complaint did not contain a great deal of detail. Howe ver, it clearly

offered sufficient information upon which further questioning could have resolve d any linge ring doubt or established the necessity

of further inquiry

consistent with Krankel

. Here, as in Moore , given the absence of any inquiry at all we ca

nnot conclude the trial judge was even familiar with the Krankel rule. See Moore , 207 Ill. 2d at 79, 797 N.E.2d at 638. The State argue s, without c itation, that “a tri al court can for ego inq uiry when it is f

amiliar w ith defens e coun sel’s perfor mance. ” This argumen t lik ewise suggest s that the S tate i s lack ing a basic understanding of this rule. I n Moore , the supreme court stated, “The law require s the trial court to conduct some type of inquiry into the underly ing factual basis, if any , of a defendant’s pro se posttrial claim of ineffective assistance of counse l.” Moore , 207 Ill. 2d at 79, 797 N.E.2d at 638. This statement exists in stark contrast to the trial judge’s conduct as well as the State’s position on

appeal. As additional suppor t of its posi

tion, the St

ate point s to defe

ndant’s f ailure to assert a freestanding claim of inef fectiveness on appeal. While this may be a significant future1-08-0383

20

consider ation, it is irrelevant to an a ssessmen t of the a dequacy of

the trial judge’ s respons e to defendant’s motion. Notably , althoug h the tria l judge d id commen

t on defe ndant’s pro se motion, the commentary wa s not at all consistent with Krankel ’s teaching. I nstead, t he only discern ible response was critical of defendant for asserting his misgivings. As noted, the judge c ommented upon defendant’s apparent lack of re morse based upon his allegation of ineffectivene ss. Howeve r, defe ndant’s d egree of remorse has min

imal rele vance to his asses sment of h

is

co un se l’ s p er fo rm an ce . N ev er th el es s, th is co mm en t w as pl ai nl y in ad eq ua te an d, es se nt ia ll y, dismissive of defendant’s claim without any inquiry at all. Importantly , Moore

did permit a trial judge’s decision on a pro se ineffectiveness motion to be based upon the judge’s knowledge of counsel’s performance and the mer it of the claims on their face. Moore , 207 I ll. 2d at 79 , 797 N.E. 2d at 638. While the tr ial judg e had the

opportuni

ty to observ e counse l’s perf ormance , the cla

ims asser ted by defenda nt relate d to matters de hors the record and not re adily

ascert ainable by a trial judge. Moreover, without further deve lopment, it was impossible to fully evaluate them. As noted, the claims asserted were somewhat vag ue. Howeve r, they clearly warran ted further inquir

y. No inquiry

was made . As such, we must remand t his cause for the li mited purp ose of conducting an inquir y in to defen dant’s pro se claims of ineffectiveness and any further proceedings nece ssitated thereby. See Moore , 207 Ill. 2d at 79, 797 N.E.2d at 638. As noted, defendant’s remaining claims of er ror, (1) that his conviction and sentence for aggravated discha

rge of a firearm violates the one -act, one-crime rule; and (2) the $5 c ourt1-08-0383

21

sys tem fee, the $25 co

urt super vision fe e, the $10

mental he alth cour

t assessme

nt, the $5 y

outh diversion/peer court assessment, and the $5 drug c ourt assessment should be vacated, are conced ed by the State . Also as noted, we reject d efenda nt’s clai ms of err or stemmin

g from voir dire and the State’s closing argument. For the foregoing r

easons, we remand the cause with directions to the trial cour t, for the li mi te d p ur po se of

co nd uc ti ng th e p re li mi na ry Krankel inquiry. I f the court finds counsel was ineffective, then defendant shall be entitled to a new trial on the merits. If, however, the court finds defendant’s claim was spurious in that it does not establish a viable claim of ineffec tive assistance of counsel, then the judgment of conviction and sente nce shall be affirmed as modified consistent with the State’s concessions noted herein. See Moore , 207 Ill. 2d at 81-82, 797 N.E.2d a t 639-40; People v. Jocko , 389 I ll. App. 3d 247, 268, 9 06 N.E.2d

38, 56 (20 09); People v. McCarter , 385 Ill. App. 3d 919, 944, 897 N.E.2d 265, 287-88 (2008). Remande d with dire ctions. TULL Y and HOWSE, JJ., concur.1-08-0383

22 __________________________________________________________________________________________________________________________ REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

(Front Sheet to

be Attached to Each Case)

_________________________________________________________________________________________________________________________ Please use

the follow

ing form PEOPLE OF THE ST

ATE OF I

LLINO IS, Plaintiff-Appellee,

v. DANIEL VARGAS , Defend ant-App ellant.

____________________________________________________________________________________________ No. 1-08-0383 Docket No. Appellate Court of Illinois COURT First District, FIFTH Division Opinion Filed November 20, 2009 (Give month, day and year)

__________________________________________________________________________________________ JUSTICE MICHAEL P. TOOMIN DELIVERED THE OPINION OF THE COURT: JUSTICES TUL LY and HOW SE, JJ. , concur. Lower Court and Trial Judge(s) in form indicated in margin: APPEAL from

the Circuit Cou rt of Cook Appeal from the Circuit Court of Cook County. County, Chancery The Hon. Thomas P. Fecarotta, Jr., Judge p resid ing.

______________________________________________________________________________________________________________________ Indicate i f attorne

y repre sents A

PPELLANT S or APPELL EES and include

attorney 's of c ounsel. Indic ate the w ord FOR APP ELLANTS NONE if not represe

nted.

For APPELLE

ES, : PLAI

NTIFF: STATE OF

IL LI NOIS- Anita Alvarez, State’s Attorney , County of Cook, Room 309 - Richard J. Daley Center, Chicago, IL 60602. Of Counsel - James E. Fitzgerald, Mary P. Needha

m, Tasha- Marie Ke lly, Shannan M cFadde n, Assitan

t State’s A

ttorney s. APPELL ANT: DANIEL

VARGAS - M ichael J. Pe lletier, State App ellate D efende r, Patric ia Unsinn, Deputy Def

ender, Elena B. Penick, Assistant Appellate Defe nder, Office of the State Appellate Defender, 204 North L aSalle Street - 24 th Floor, Chicago, IL 60601.1-08-0383

23