2013 I LApp (4th) 120981 NO. 4-12- 0981 I N THE APPEL LATE COURT OF I L L I NOI S FOU RTH DI STRI CT THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appellee ,

v. J OHN WI L L I E J OL L Y,

Def endant- Appellant. ) ) ) ) ) ) ) ) Appea l from Circuit Court of McL ean County No. 10CF239 Honora ble Scott Drazewski, J udg e Presiding
.

______________________________________________________________________________

J USTI CE POPE delivered the judg ment of the c ourt, with opinion. Presiding Justice Steigmann a nd J ustice Holder

Whit e conc urre d in the judgme nt and opinion. OP INION ¶ 1 On J uly

19, 2012, this court rema nded this case to the trial court " ' for the limited purpose of

allowingthe trial cour

t to conduct the re quired pre liminary investigation' to dete rmine if a full evide ntiary

hearing" into defenda

nt J ohn Wil lie J olly ' s pro se claims of inef fec tive assistance of counse l should be held. People v . Jolly , 2012 I L App (4th) 110033- U, slip order at ¶ 14 (quoting People v . Moore , 207 I ll. 2d 68, 81, 797 N.E.2d 631, 640 (2003)). O n September 26, 2012, the cour

t held a hea

ringpursuant to this court' s order and rule d it would not appoint
new c ounsel for de fenda

nt beca use " eac h of the a lleg ations lacks mer it and/or perta ins to trial strategy ." D efe ndant appe als, arguing the trial court' s denial of de fenda nt's r equest for

new counsel must be re verse d wher e the c ourt " conducte d a quasi-e videntiary hear ing a t which the State prese nted testimony and ar gument" instea d of a pr eliminary hear ing pur suant to People v

. 

## F I L E D Oct obe r 4 , 201 3 Car la Bend er 4 Dis tr ic t Ap pel la te t h Cour t, ILKrankel , 102 I ll. 2d 181, 464 N.E.2d 1045 (1984). We af firm. ¶ 2 I . BA CKGROUND ¶ 3 On Marc h 19, 2010, the State cha rg ed def endant with unlawf

ul delivery

of a controlled substanc e within 1,000 fee t of a c hurch ( count I ) (720 I L CS 570/ 407(b)( 2) (West 2008)) a nd unlawful de livery

of a c ontrolled substance (count I I ) (720 I L CS 570/ 401(d)( i) (West 2008)). On July

19, 2010, the State dismissed count Iand proc eede d only on count I I
. ¶ 4 At defe ndant' s trial, the State ca lled Robbie Gunn. Gunn testified he had a dr ug problem, which star

ted when he was 17. He was 45 year s old at the time of trial. Gunn sold drug s, stole things, and did whatever else wa s nece ssary

to acquire drug s. He testified he was a convicted f

elon, had multiple convictions for de livery of a c ontrolled substance , and had se rved time in prison. ¶ 5 Detec tive Raisbeck of the B loomington police de partment a rre sted Gunn on September 22, 2009, f

or deliver y of her oin or cra ck in J une 2009. Gunn testified he was selling drug s to ge t drug s. Gunn was ne ver c harg ed for this offense. A fter Gunn assisted the police a s a confide ntial source, D etec tive Raisbeck wa s instrumental in ge tting a pe nding misdeme anor ag ainst Gunn dismissed. ¶ 6 On Marc h 3, 2010, Gunn told Detec tive Raisbeck someone named " Bud" would sell Gunn coc aine. Gunn ide ntified defe ndant as " Bud." On Marc h 18, 2010, Gunn met with Detec tive Raisbeck a g ain and c alled def endant in the de tective' s prese nce. Gunn rec og nized defe ndant' s voice on the phone . Gunn told defe ndant he ha d "200" to spend, but defe ndant said he only had a " 50" but would try to ge t the rest. Gunn c alled def endant ba ck 10 or 15 minutes later. D efe ndant said he still only had the " 50." D efe ndant said he w ould bringit to Gunn.

- 2 -¶ 7 Gunn went to their nor mal transac tion spot on Mul berr y . Detec tive Raisbeck g ave Gunn $50. At the mee ting plac e on Mulberr y , defe ndant drove up and lower ed the pa sseng er side window of his vehic le. Gunn g ave de fenda nt $50, and def

endant spit the drug s out of his mouth and g ave the m to Gunn. Defe ndant said he w ould try to ge t "150" more. Af

ter de fenda

nt drove a way , Detec tive Raisbeck c ame a nd g ot the drug s from Gunn. Gunn state d Detec tive Raisbeck g ave him some money for he lping him. ¶ 8 On cr oss-examination, Gunn testified he nee ded money beca use he did not have a job and nee ded funds to live. Gunn wa s not wear ing a ny kind of surveillanc e equipment dur ing the transa ction with defe ndant. ¶ 9 Detec tive serg eant Ke nneth B ay s testified he wa s part of the surveillance detail watchingdefe ndant. Afte r the c ontrolled buy , Serg eant B ay s stopped at a stop sig n, and defe ndant stopped behind him. He the n moved out of the wa y as the police "takedown units" g ot behind def

endant. The "takedown units," three police ca rs with lights and sire ns on, attempted to stop defenda

nt but he ref

used to stop. Instead of stopping , defe ndant ac cele rate d his vehicle. After a short cha se, Serg eant B ay s told the office rs to stop the pursuit beca use they knew who defe ndant was a

nd did not want to endang er the public. Def endant wa s appre hended a bout 90 seconds late r. ¶ 10 On cr oss-examination, S erg eant B ay s testified the police c ars pur suing de fenda nt did not have oscillatingpolice lig hts on the roofs of the vehicles a nd wer e not " black a

nd whites." ¶ 11 Patrol serg eant Mike G ray , who was a detec tive in the vice unit at the time of defe ndant' s arr est, testified he obse rved Gunn from the point he lef t the prese nce of

Detec tive
- 3 -Raisbeck until the transa ction with defe ndant. Serg eant Gr ay identified def

endant a s the driver of the ve hicle that stopped for Gunn. Def

endant lea

ned towar d Gunn, who wa s on the passeng er side of def

endant' s vehicle. Ser g eant Gr ay saw moveme nt from def endant' s shoulders and a

rms but did not actually

see the hand-to-ha

nd transac tion. After de fenda nt's c ar pulled a

way , Gunn met with Detec tive Raisbeck. ¶ 12 Offic er Rick B eoletto testified he w as a pa sseng er in a n unmarke d Camaro dr iven by Offic er Chambe rs on the day in question. The police lig hts on the vehicle a re loc ated at the roof line on the inside of

the vehicle . The off

icer s were instructed to stop a re d vehicle w ith a white top. Offic er Chambe rs ac tivated the eme rg ency lights on the Camar o. The drive r of the red ve hicle looked in the r ear view mirror

and beg an " shakinghis head in a no f ashion." Offic er Chambers then move d his vehicle out of the w ay so a diffe rent police vehicle w ith a siren could pursue the r ed vehic le. Afte r it beca me clea r the ve hicle wa s not going to stop, the police vehicles pulled ove r to the side of the road a nd started lookingfor items they thought we re thrown fr om the suspect vehic le. ¶ 13 On cr oss-examination, Office r B eoletto stated the items thrown out the w indow of defe ndant' s vehicle a

ppear ed to be shre dded pape r. He did not personally rec over a ny of the items thrown out of the vehic le' s window, nor could he identify what wa s thrown from the window. ¶ 14 Offic er B rad Me lton assisted in one of the " takedown c ars." He wa s in uniform in
an unmar ked Chevrole t I mpala, which ha d a lig ht bar on the top of the windshield and lig hts in the g rill on the front and ba ck of the vehicle a nd a re gular police siren. Of fice r Melton' s vehicle
was ne ver dire ctly

behind def

endant' s vehicle. H e testified he arr ested de fenda nt later while
- 4 -defe ndant was on f oot. Defe ndant had a

cell phone in his hand at the time of his arre st. ¶ 15 Offic er B ill W right testified he wa s asked by Detec tive Raisbeck to make a tra ffic stop on a maroon B uick with a white top. While pursuing the vehicle, he observe d what appea red to be paper

comingout of the driver ' s side of the ve hicle. He and the other office rs did not pursue the ve hicle for safe ty rea sons. Office r Wright testified he picked up some of the pape r that was thrown f

rom the ca

r. The pa per turne d out to be torn United States cur renc y . Offic er Wright turned the piece s of cur renc y he collec ted over

to Detec tive Stephen B rown. ¶ 16 Detec tive Br own testified he w as assig ned to do pre surveillance on defe ndant at an apa rtment complex. He observe d defe ndant g et into an older mode l red c ar w ith a white or off- white top. He testified he did not witness the other off icer s' pursuit of defe ndant' s vehicle. He pulled up to whe re the office rs had stopped a nd wer e try

ing to pick thing s up out of the roa d. Offic er Wrig ht ga

ve De tective B rown what he picked up. D etec tive Br own documente d and logg ed the e vidence . Detec tive Br own compar ed the bits and piec es of c urre ncy picked up f

rom the stree t with the photocopy of the money

used by Gunn in the controlled buy . Detec tive Br own testified the ser ial numbers on the bills used in the controlled buy matched the piece s rec overe d on the stree t which had be en thrown f rom defe ndant' s car . Offic er Me lton provided Dete ctive Br own with a ce ll phone rec overe d from def endant at the time of his arre st. The phone ha d the same number

Gunn ca lled to set up the controlled buy
. ¶ 17 Detec tive Kevin Raisbec k testified he wor ked with Gunn as a

confide ntial informant af

ter a rre sting Gunn in June 2009 for sellingdrug s. He ha d g iven Gunn $400 so fa r for his help. On Ma

rch 18, 2010, Gunn took part in a c ontrolled buy for De tective Raisbec k. Be fore the buy , Detec tive Raisbeck se arc hed the ve hicle he a nd Gunn would be r iding in and
- 5 -Gunn himself. They then place d a ser ies of ca lls to defendant. The money to be used in the controlled buy

was photocopie d. Gunn ca lled the number twic e. De tective Raisbec k then drove Gunn to the 900 block of West Mulberr y and droppe d him off. Dete ctive Gr ay was in the a

rea to observe Gunn and the tr ansac tion. After De tective Gr ay told Detective Ra isbeck the othe r vehicle ha d left, De tective Raisbec k met with Gunn, who g ave him a ba gof coc aine he had just purcha sed fr om defe ndant. ¶ 18 Detec tive Raisbeck testified he later inter viewed de fenda

nt. Defe ndant said he did not stop for the offic ers be cause he thoug ht they wer e thug s trying to make him stop. Def endant c laimed he c ould not hear the sirens bec ause his music wa s too loud. As for the police lig hts, defenda

nt said he could not see them beca use he did not have his gla sses on. Def endant told Dete ctive Raisbec k he did not reme mber throwingmoney out the window of his
car . ¶ 19 Def

endant c hose not to call any witnesses. ¶ 20 The jury

found def

endant guilty

of deliver

y of a c ontrolled substance
. ¶ 21 On Oc tober 25, 2010, de fenda nt filed a pro se motion to reduce se ntence , alleg ing his trial attorney , Har

vey Welch, was inef

fec tive beca

use he did not file a

motion to reduce defe ndant' s bond, waived de fenda nt's r ight to a spe edy

trial, failed to a

ppear in court to repr esent defe ndant, fa iled to provide def endant a cce ss to discovery , and did not diligently seek a consultation with defenda nt to discuss trial strategy if trial bec ame inevitable
. ¶ 22 On Novembe r 23, 2010, def endant f iled a pro se motion to amend the motion to reduc e sente nce. I

n that motion, defenda

nt argued Welch wa s not thorough in his re prese ntation of def endant be cause he did not object to the State dee ming itself a n expert on curr ency , did not
- 6 -attack the cre dibilit y of the State' s confidential sourc e base d on his criminal behavior and the f act he re mained fr ee to testify ag ainst defe ndant, did not object to the lack of testimony

from for ensic experts conce rningthe State' s exhi bits, and did not challeng e the suff iciency of the e vidence to convict def

endant. ¶ 23 Def

endant a lso argued Welch fa iled to object to Detec tive Raisbeck identify ing defe ndant' s voice on a

rec orded phone call fr om the jail and in a conve rsation with the State' s confide ntial source, f

ailed to object to the State' s introduction of coc aine to the jury without anyone testify

ing it wa s coca ine, and f

ailed to file a

motion to s uppress the ma rked mone y

and
coca ine. ¶ 24 On September 26, 2012, the trial cour

t held a hea

ringpursuant to this court' s order in People v . Jolly , 2012 I LApp (4th) 110033- U, to deter mine whether

new c ounsel nee ded to be appointed for

defe ndant and a

full evidentiary

hear ing he ld on defe ndant' s alleg ations of ineffe ctive assistanc e of c ounsel. Immediately prior to the start of

the hea ring , the cour

t allowed defe ndant' s lawy er, Ronald L ewis, to leave the cour troom. Defe ndant proc eede d pro se at the hear ing. T he cour

t noted Welch was available a s a witness. Ac cordingto the court: "[Attorney

Welch] i s not appea

ringin any

capa city , that beingas an attorne y

for Mr. Jolly , but is present in the eve nt that either the court, whic h Ibelieve unde r the c ase la w I would have the ability to go a head a nd make inquiry

of Mr. Welch a s to some of the claims that wer e ra ised by Mr. J olly , or, in the alter native, if the State wished to ca ll Mr. Welch as a witness, that I would have the opportunity

to hear from him as it relate s to some of the asse rtions.

- 7 -When Isay some, specif

ically those asser

tions relatingto ineffe ctive assistanc e of c ounsel from Mr. Jolly ." The c ourt offe red de fenda nt the opportunity

to exclude Welch from the cour troom. Defe ndant, there afte r, re quested Welch not be pr esent until he wa s questioned. ¶ 25 The trial c ourt informed the parties of its prefe renc e to kee p the hea ring"a s informal as possible re cog nizi ngthat the ultimate deter mination is t o make a

g ood rec ord so that that way not only does the trial c ourt, but the Appellate Court, if nece ssary , will understand what issues were raised a

nd what ruling s, then, wer e made by the cour t with respec t to those issues that wer e ra ised." The c ourt noted neither the I llinois Supreme Court nor the A ppellate Court has define d a spec ific method for conductingthis ty

pe of pr eliminary

hear ing. ¶ 26 The trial c ourt first allowed de fenda nt to ex plain why

he believe d his trial counsel was inef fec tive. Def

endant told the cour

t his trial counsel did not assert ce rtain thing s duringthe trial, did not contest other thing s, and did not impeach State w itness Robbie Gunn, who was a confide ntial source f

or the police . The c ourt went through eac h of def endant' s alleg ations of his attorney ' s alleg ed inef

fec tiveness. The c ourt verif ied with defe ndant he ha d been a llowed to explain or elaborate on all of his alleg ations of ineff ectivene ss. ¶ 27 The trial c ourt then addr essed the State a nd the followingexchang e occ urre d: "[THE COURT]: W hat evidenc e does the State wish to submit , that being , if any thing, whe n Isay

evidenc e, this is nota full evide ntiary hear ing, but doe s the State wish to rebut the a ssertions or cla ims, in essence, by Mr. J olly in any manner at this tim e. - 8 -[THE STATE] : Yes, your Honor. [THE COURT] : How so? [THE STATE] : The State is prepa red to a ddress e ach of Mr. J olly ' s claims of ineff ective a ssistance of c ounsel if the cour t would wish to hear those
. [THE COURT] : Wi thout any testimony , is that what you' re indicating ? You just want to g o ahea d and proc eed to a rgument? [THE STATE] : We also have Ha rvey Welch. [THE COURT] : Okay . L et' s g o ahea d and, as I sug g ested to Mr. J olly

previously , althoug h Idon' t want to g o ahea d and preve nt arg

ument, let' s g o ahea d and save argument for the appropr iate time. So at this t ime the State wishes to pre sent some testimony is what you' re indicating? [THE STATE] : That' s corr ect, your Honor. [THE COURT] : Recog nizi ngor under standingthat some intercha ng e betwe en the tria l court and tria l counsel re g ardingthe fac ts and circ umstances is per missibl e, and I

want to make sur e, for purposes of the rec ord, that whe ther or not the c ourt conduc ts the inquiry of Mr. Welch or c ounsel, that beingasks the inquiry of Mr. Welch, that, basica lly , it's a n opportunity

to Mr. Welch to addre ss the asser tions, thi s is not an evidentiary hear ing. T here will be no
- 9 -cross-e x amination of Mr. Welch. Are y ou rea dy

to call him? [THE STATE] : Yes, your Honor. [THE COURT] : All right. And I guess I should state, and this is whil e counse l and Mr. Jol ly are prese nt as well, the same applies to Mr. Jol ly . There will be no cross-e x amination of Mr. J olly . The purpose of this hear ing is a preliminary

examination. I t's not a full evidentiary

hear ing. I

t affor ds both the court an opportunity

to hear from both Mr. Jol ly

and Mr. Welch a

nd then make a deter mination as to what, if any , further action is requir ed." Welch was then swor

n to testify
. ¶ 28 The trial c ourt noted it could ask Welch questions re g ardingJ olly ' s alleg ations but the State instead would be eliciting inf ormation from Welch. Welch testified he had no spec ific
rec ollection of missing a

ny of Jol ly ' s pretria l hear ings but a g ree d the docke t would be ac curate as to whether

or not he missed any

hear ing a nd who filled in for him. Welch denie d telling defe ndant he wa s not prepar ed to proc eed w ith his case at the time of trial. Acc ordingto Welch, he wa s prepa

red to proc eed w ith the case at the time of trial a nd had bee n g iven ample time to prepa re his trial strateg y . ¶ 29 Wit h reg ard to Joll y ' s alleg ation Welch failed to c onsult with hi m about trial strategy and the a pproac h Welch would take at trial, Welch testified: "T hat' s not true. The situation that conf ronted ourse lves was that Mr. Jolly

was g iven what I

considere d a ter

rible off er by
- 10 -the McL ean County [S ]t ate' s [A] ttorney ' s office . I t was 14 y ear s, as I rec all, and the c hoices that I put to him were that he could
acc ept that offe r, he c ould plead guilty to open, or he could g o to trial. Given the discove ry we we nt over, I

told him t hat we w ould most li kely

not preva il at trial, but that he was not beingg iven much of a barg ain for his plea , and so we discussed the discove ry and we discussed the va

rious options, and Itold him t hat if he took the offe r, that that would pre tty much end matter s. I t is possi ble alway s to file other plea dings, but if you acc ept a plea and a specific sentenc e, I

told him i f he ple d guilty to open, that would also limithis options t o complain later on though not a s sever ely as takinga totally

consummated plea , and I told him t hat if he w ent to trial, there would be, obviously , then more oppor tunities to complain if that didn' t turn out corre ctly , but, no, we had ple nty of time to go ove r the discove ry . This was a de livery case and it was fairly cut and dr

y , but those were the options that Iprese nted to him, and he made the choice to go to tria l." ¶ 30 Wit h reg ard to his fa ilure to file a motion to reduc e bond, Welch testified he probably did not file such a motion beca use he did not believe it would result in any relief based on his evaluation of the f

acts a nd circ umstances of

the ca se and de fenda

nt's pr ior rec ord. ¶ 31 Welch testified he ha d been a n attorney for ove r 30 y ear s, had handle d more than 1,000 criminal ca ses, and ha d tried over 100 criminal ca ses. - 11 -¶ 32 Wit h reg ard to de fenda nt's c omplaint W elch did not file a motion to s uppress, Welch testified def

endant ha d no evidenc e take n from his person or near his person subject to a suppression motion. As for def endant' s complaint Welch did not meet with him often enough, Welch testified he e stimated he met with defe ndant two or thre e times at the jail and ha d brief confe renc es with defe ndant bef ore va rious hear ings on de fenda nt's c ase. Welch te stified he let defe ndant see the discover y materia l and def

endant ha d ample opportunity to view the material, but supreme c ourt rules prohibited him from g iving de fenda nt copies of the material. ¶ 33 As for his cr oss-examination of the State' s confidential sourc e, Welch did not specific ally

rec all the cr oss-examination. However , he testified he questioned all the witnesse s to the best of his ability
. ¶ 34 After

the State finished questioningdefe ndant, the trial c ourt asked Welch a bout defe ndant' s complaint Welch allowed the c ase not to be trie d within the 120-day limitfor a speedy trial. Welch testified all re quests for c ontinuances w ere made in open c ourt in defe ndant' s prese nce, a

nd he believe d defe ndant agree d to all of the continuanc es. Ac cordingto Welch, defe ndant neve r objec ted to Welch about the continuanc es at the times they wer e made
. ¶ 35 The trial c ourt also aske d Welch about def endant' s alleg ations reg ardingWelch' s
cross-e x amination of the State' s other witnesses. Welch r esponded he believed the witnesses
wer e cr oss-examined sufficiently on the re levant points in this case. Ac cordingto Welch, his choice as to what pa

rticular que stions to ask the witnesses was strateg ic in nature
. ¶ 36 The trial c ourt next asked Welch about def endant' s alleg ation Welch should have called e x pert witnesse s on matters involving c urre ncy , voice r ecognition, and identification of controlled substanc es. Welch stated:
- 12 -"A s far as other e x perts, I

do not believe, a g ain, strateg ically

that g iven the natur e of the charg es, that there would have be en any

other re levant testimony

to be g ained f

rom any expert witnesses. The voic e re cog nition part, ag ain, I think that that related to a conve rsation subsequent to the e vents in question and to me it wasn' t rea lly

rele vant to the issues that wer e in question whether

or not a de livery

had take n place ." ¶ 37 Wit h reg ard to de fenda nt's a rgument Welch should have objec ted to the testimony of cr ime lab per sonnel that the substance delivere d by defe ndant was c ocaine , Welch testified he found the testingdone at the sta te cr ime lab was a dequate
. ¶ 38 Finally , Welch told the trial court he ha d revie wed de fenda nt's pro se motions filed on Oc tober 25 a

nd November

23 prior to the hea

ring . The c ourt asked Welch whether he had any thing f urther to tell the c ourt befor e it deter mined whether

a full evide ntiary

hear ing should be requir ed. In response , Welch stated he ha d clea rly informed Joll y

about his options in this case a

nd discussed these options with J olly
. ¶ 39 The trial c ourt, in determiningwhether a full evide ntiary

hearing a nd appointment of newcounsel we re r equire d, made the f ollowing state ments. Acc ordingto the court, what it "looks at is whether or

not under the f

actua l bases of the claims, whethe r or not those c laims have or lac k merit, whethe r or not they perta in to trial strateg y , whether or not they

relate to ineffe ctive assistance of counse l, that beingneg lect, in par ticular, or f

ailure to *** rise to the level *** of repr esentation required unde r Strickland v. W

ashington ." T he cour

t took judicial notice of the court file, a

nd then said:
- 13 -"[T]he court ca n *** base it' s [ sic ] evaluation of the def endant' s pro se alleg ations on its own knowledg e of de fense counsel' s perf ormanc e at tria l, and since I was the tria l attorney

[ sic ] and beingfamiliar with Mr. Welch not only with respec t to that particula r ca se, but other c ases in which he duringthat period of time that both of us were in the criminal fe lony division, would have ha d numerous enc ounters with one a nother, fe el that I

have a sufficie nt basis and knowledg e to g o ahea d and dra w upon that understanding , that perc eption, and that knowledg e with re spect to the compete nce of

counsel." The c ourt then stated the de fenda nt's a lleg ations of ineff

ective a ssistance of c ounsel lacke d merit and/or pe rtained to trial strategy . The c ourt believe d Welch never told J olly he wa s not prepar ed to go to tria l. In addition, the court be lieved Welch disclosed to def endant Welch' s trial strategy in this m atter. The court noted:

"With respec t to all of the other issues that we re a ddresse d, that beingthe fore nsic experts, either c alling the m or not calling them, the method and mea ns of cr oss-examination, the confidential
source , the motions that could or may have be en filed, whether it be motions to dism iss, for new trial, to suppress, the dec ision by counsel to objec t or not object to the introduction of c erta in exhibi ts to the jury , the dec ision to obj ect or not object to any

offthe-c uff state ment that the state' s attorney char g ed with prosec uting
- 14 -the ca se would have made, a ll relate to trial strateg y decisions, not ineffe ctive assistanc e of c ounsel." The c ourt then denie d defe ndant' s reque st for newcounsel. ¶ 40 This appea l followed. ¶ 41 I I . ANALYSI S ¶ 42 In the first appe al, we r emande d this case to the tria l court for the limited purpose of conduc ting a

n inquiry pursuant to People v . Moore , 207 I ll. 2d 68, 81, 797 N.E.2d 631, 639-40 (2003), into the under lying f actua l basis of defe ndant' s pro se claims of inef fec tive assistance of counsel to dete rmine if a f ull evidentiary

hear ing w as re quired. Jolly , 2012 I LApp (4th) 110033- U, ¶ 14. The court, on re mand, conduc ted a he aringand dete rmined a f ull evidentiary

hear ing was not re quired. ¶ 43 At issue is whether the trial court e rre d in the manner it conducted the he aringon
rema nd. Acc ordingto defe ndant' s brief:

"[I ]nst ead of

makinga prope r limited inquiry by discussing the claims with J olly

and [trial attorney] W elch, the c ourt held a qua sievidentiar y hearing at which the State pre sented Welch' s sworn testimony and then a

rgued that Jol ly

should not be appointed counsel. At this hear ing, the court used its per sonal knowledg e of Welch' s conduct in this case . The c ourt denied Jolly ' s arguments on the merits rather than a ssessing the m as to whether any of the arguments showed a c olorable c laim of possible neg lect." ¶ 44 The prope r scope of a pr eliminary investigatory

hear ing to de termine whe ther to
- 15 -appoint defe ndant new c ounsel is a question of law w e re view de novo
. Moore , 207 I ll. 2d at 75,

797 N.E.2d at 636. I f the trial c ourt err ed in the manne r it conducte d the hea ring , the er

ror c an be harmless be y ond a re asonable doubt. People v . Nitz , 143 I ll. 2d 82, 135, 572 N.E.2d 895, 919 (1991). ¶ 45 Our supre me cour t has stated Krankel

did not establish a per se rule a defe ndant is entitled to a new a

ttorney ever y time he pre sents a

pro se motion for a new

trial alleg ing ineffe ctive assistanc e of c ounsel. People v . Nitz , 143 I ll. 2d at 134, 572 N.E.2d at 919. I nstead, the trial cour

t " ' should ex amine the f

actua l matters under lying the defe ndant' s claim[.] *** [I ]f the claim lac ks merit or per tains to matters of trial strateg y , then no new c ounsel nee d be appointed.' " Nitz , 143 I ll. 2d at 134, 572 N.E.2d at 919 (quoting People v . W ashington , 184 I ll. App. 3d 703, 711, 540 N.E.2d 1014, 1019 (1989) ). " A claim lac ks merit if it is ' " conclusory , misleading , or leg ally

immaterial" or do[es] "not bring to the trial court' s attention a colora ble claim of inef

fec tive assistance of counse l." ' " People v . Tolefree , 2011 I LApp (1st) 100689, ¶ 22 (quoting People v . Burks , 343 I ll. App. 3d 765, 774, 799 N.E.2d 745, 753 (2003))
. Howeve r, if a de fenda

nt's f actua l alleg ations " ' show possible neg lect of the case *** new counsel [should] be appointed.' " Nitz , 143 I ll. 2d at 134, 572 N.E.2d at 919 (quoting W ashington , 184 I ll. App. 3d at 711, 540 N.E.2d at 1019). ¶ 46 In this ty

pe of c ase, when conside ringthe trial cour t's r eview of

a def endant' s pro
se alleg ations of ineff

ective a ssistance c ounsel, our supre me cour t has held:

" The operative c oncern for the re viewing court is whether the trial court conducted an ade quate inquiry into the defendant's pro se allegations of ineffective assistance of counse l. [C itation.]
- 16 -Duringthis evaluation, some interc hang e betwe en the tria l court and trial c ounsel reg ardingthe fa cts and c ircumstance s surrounding the alleg edly

ineffe ctive re prese ntation is permissible and usually
nece ssary in assessingwhat fur

ther a ction, if any , is warr anted on a defe ndant' s claim. Trial c ounsel may simply answe r questions and explain the facts and c ircumstance s surroundingthe def endant' s alleg ations. [C itations.] A brief discussion betwee n the trial cour t and the de fenda

nt may be suff icient. [Ci tations.] Also, the trial court c an base its evaluation of the de fenda nt's pro se alleg ations of ineffe ctive assistanc e on its knowledg e of de fense counsel' s perf ormanc e at tria l and the insuffic iency of the de fenda

nt's alleg ations on their fa ce." (Emphasis adde d.) Moore , 207 I ll. 2d at 78-79, 797 N.E.2d at 638. ¶ 47 Whil e a tr ial court should ordinar ily conduct a

preliminary

investigation before proce edingto a full evidentiar y hear ing on the merits (

People v . Cabrales , 325 I ll. App. 3d 1, 5, 756 N.E.2d 461, 464-65 ( 2001)), the supr eme c ourt has lef t unresolved the que stion of the permissible extent of the preliminary investigatory

hearing. T his court, re lying on Moore , previously

has stated a

trial court c an conduc t a Krankel inquiry in one or more of the following way s: "(1) questioning the trial counsel, ( 2) questioningthe def endant, a nd (3) r ely

ing on its own knowledg e of the trial counsel' s perf ormanc e in the trial." People v . Peac ock, 359 I ll. App. 3d 326, 339, 833 N.E.2d 396, 407 (2005)
. ¶ 48 These inve stigatory hear ings a

re me ant to be neither

adver sarial nor

evidentiar

y . - 17 -I t is not necessar y to exclude counsel fr om the courtroom dur ing the court' s questioning of a defe ndant about alleg ations of ineff ectivene ss. Indeed, if

counsel is pre sent, he or she can he ar for himself or

herse lf what de fenda

nt is saying a

nd then re spond if called upon to do so by the court. Nor

is it necessar

y to swear counsel or de fenda

nt. The pre liminary

investigation is m eant to be informal; no one ne eds to be swor n to testify . Although the trial court r epeatedly stated it was only holding a preliminary Krankel

inquiry rathe r than a

n evidentiar

y hear ing, de fenda

nt argues the c ourt in essenc e conduc ted an e videntiary hear ing. A ccor ding to de fenda nt: "H ere , the cour

t transce nded the a

bove boundaries of a limit ed pre liminary

inquiry by allowingthe State to actively participate in the proc eeding s. The State wa s allowed to ca ll Welch as a w itness and to question him as to why he believe d there
was no mer it to any

of Jol ly ' s claims of ineff

ectivene ss. [ Citation.] Although Welch w as questioned by the State and the c ourt, J olly was not allowe d to cross-e x amine Welch. In addition to presentingWelch' s sworn testimony , the State was a llowed to argue that Jol ly should not rece ive appointed counsel. [Cit ation.] The State argued that no evide ntiary hear ing
was ne cessa

ry beca use ' Mr. J olly

has fa iled to show that Mr. Welch was inef fec tive in his repre sentation of Mr. Joll y [.] ' [C itation.] Nothing in Peac ock

or Mooreauthorizes either the takingof ac tual testimony or ac tive participation by the State duringa pre liminary inquiry ."
- 18 -¶ 49 The State a rgues the pre liminary

inquiry did not become a

n adver sarial he aringon the merits simply

beca use the State e licited some of Welch' s responses to de fenda nt's ineffe ctiveness c laims. Accor ding to the State' s brief:

"I n contra st to Cabrales , the trial cour t rec og nized the purpose of the hea ring —to determine the fac tual bases of defe ndant' s alleg ations in order to de cide whe ther it nee ded to appoint other counsel to pre sent those claims in a full evide ntiary hear ing. Unlike Cabrales , the cour t did not allow the State to cross-examine defe ndant, or the de fenda nt to cross-examine Welch, and it did not conduct a hear ing on the merits. The State' s role wa s de minimis and did not transfor

m the hear ing f

rom the initial investigator y phase into an a dversa

rial hea ringon the merits." ¶ 50 We first note defe ndant re ads this court' s decision in Peac ock too narrow ly . As we noted e arlier , our supre me cour t has stated a trial court " ' should ex amine the f actua l matters underlying the defe ndant' s claim' " to de termine whe ther a defe ndant' s claims lack mer it or perta in to matters of trial strate g y . Nitz , 143 I ll. 2d at 134, 572 N.E.2d at 919 (quoting W ashington , 184 I ll. App. 3d at 711, 540 N.E.2d at 1019 (1989) ). Our de cision in Peac ock should not be rea d as re stricting a trial court to only

the three actions spec ifically enumer ated in that case . For

example, the court is fre e to re view the c ourt file and tr anscr ipts for purposes of the investig atory

hear ing. T he cour

t is also free to ask the State for specific and conc rete fac tual information re lating to a

defe ndant' s alleg ations. ¶ 51 That beingsaid, the trial cour t in the case sub judice err ed by allowingthe State to
- 19 -question defe ndant' s trial counsel unde r oath duringthe pre liminary investigatory

hearing while barr ing de fenda

nt from askinghis trial counsel any questions. The moment the State wa s allowed to question def

ense c ounsel, this hearingturned fr om investiga tory to adver sarial. The same would have bee n true if the c ourt allowed de fenda nt to question his t rial counse l. ¶ 52 When the trial court que stions the parties, it does so, not as an a dvocate , but as an impartial tribunal whose only mission i s to ge t the fac ts and follow the law. A s a re sult, the court
can ma ke an impar

tial determination whe ther a defe ndant' s claims of ineff ectivene ss are so without merit or relate to matters of strateg y such that appointment of ne w counse l is
unwar rante d. ¶ 53 The trial c ourt also er red in re lying on its knowledg e of de fense counsel' s perf ormanc e in ca ses other tha n this matter. Even the be st attorney can r ender

leg ally ineffe ctive assistance by

makingsignific ant mistakes. Afte r all, contra ry to some beliefs, attorney s are only human, and humans make mistakes. As a result, with reg ard to a

n attorney' s perf

ormanc e, the trial court must only

take into consider ation the attorne y ' s perf ormanc e in the par

ticular c ase at issue. See Peac ock, 359 I ll. App. 3d at 339, 833 N.E.2d at 407. ¶ 54 Her e the State, r epre sented by counsel, c onducted a

sworn examination of Welch. Def endant, unr epre sented at this t ime, was not allowe d to ask any questions of Welch. Althoug h the trial cour

t erre d in the manner

it conducted the he aring , we c an still affirm the tria l court if its
err or wa s harmless beyond a re asonable doubt. Nitz , 143 I ll. 2d at 135, 572 N.E.2d at 919. In this case, the tr ial court' s err ors wer e har mless beyond a re asonable doubt. We first note the trial court thoroughly

examined the fac tual matters in this case, que stioning both defe ndant and attorney Welch in a fa ir and impartial manne r. The c ourt could have easily denied de fenda

nt's
- 20 -reque st for newcounsel ba sed on its own investigation of the fac ts in open court.

¶ 55 Def

endant only

arg ues two of his alleg ations of ineff ective a ssistance of c ounsel show a c olorable c laim of possible neg lect. Howe ver, ne ither states a colora ble claim of possible neg lect. ¶ 56 Def

endant f irst argues Welch wa s ineffe ctive bec ause he did not impeach Gunn, the State' s confidential sourc e, by questioning him about his druguse. Ac cording to defe ndant, "Welch did not ask Gunn, the State' s primary witness in this case, whe ther he was hig h at trial or duringthe alleg ed deliver y , or whe n Gunn had last used illeg al drug s." H ow an attorney chooses to cross-e x amine a w itness is a matter of tria l strateg y . Fur ther, ba sed on the fa cts of this case , this claim is meritless. Gunn made a c ontrolled drugbuy from def endant while unde r police surveillance . Gunn was se arc hed prior to makingthe controlled buy and had no dr

ug s. After

the controlled buy , Gunn possessed dr ug s he re ceive d from def

endant. F urther, police rec overe d the
curr ency used to make the controlled buy afte r def endant thre w it from his car while being pursued by

police off

icer s. Gunn' s persona l flaws would have had no impact on the State' s case ag ainst defe ndant. Moreove r, the State introduce d evidenc e of Gunn' s criminal and dr ughistory , including the fac ts he had c onvictions for deliver y of a c ontrolled substance and had se rved time in prison. Gunn even te stified he sold drug s, stole things, and did whatever else wa s nece ssary

to acquir e drug s. ¶ 57 Def

endant ne x t argues Welch did not disclose or discuss his trial strategy with him, and Welch' s answer s reg arding this alleg ation wer e not re sponsive to defe ndant' s claim. Acc ordingto defe ndant, Welch only testified the State made an unattra ctive plea offe r of 14 y ear s in prison and, afte r discussingwith defe ndant the discove ry he re ceive d from the State,
- 21 -Welch only discussed whe ther de fenda nt should acce pt the State' s plea off er, e nter a n open guilty plea, or g o to trial and likely

be convic ted. Def

endant a rgues in his brief: "Welch' s testimony

identified no trial strate g y that he shar ed with J olly . Rather, Welch testified a bout the overa ll decision about whether to go to tria l or plead g

uilty , and not about a trial strategy for maximiz ing the chanc e of a cquittal." Howeve r, def

endant doe s not argue at a ny time he aske d Welch to discuss the strategy Welch planned to use at trial. This also ignor es the fa ct, as Welch testified, this was a "c ut and dry " c ase for the State. ¶ 58 Fur

ther, in his brief to this court, de fenda nt does not identify

any strategy Welch could have used at trial other than impeac hing Gunn with his drug use . Howeve r, as state d
ear lier, def

endant' s claim Welch was inef fec tive based on his cr oss-examination of Gunn is meritless based on the fac ts of this case. ¶ 59 For

the re asons stated a

bove, the tria l court proc edura l error was ha rmless beyond
a re asonable doubt. ¶ 60 I I I . CONCLUSI ON ¶ 61 For

the re asons stated, we aff irm the trial cour

t's de nial of def

endant' s reque st for
new c ounsel. As par

t of our judg ment, we a

war d the State its $50 statutory assessment ag ainst defe ndant as c osts of this appeal. ¶ 62 Affir

med.

- 22 -