Docket No. 107536.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

THOMAS TAYLOR, Appellant.

Opinion filed April 15, 2010.

JUSTICE FREEMAN delivered the judgment of the court, with

opinion.

Chief Justice Fitzgerald and Justices Thomas, Kilbride, Garman,

and Karmeier concurred in the judgment and opinion.

Justice Burke specially concurred, with opinion.

OPINION

Following a bench trial in the circuit court of Cook County,

defendant Thomas Taylor was convicted of possession of a controlled

substance with intent to deliver, a Class 2 felony. Because of two prior

convictions for Class 2 or greater offenses, he was sentenced as a

Class X offender and was given a sentence of seven years’

imprisonment. The appellate court affirmed the conviction and

sentence. No. 1–06–3061 (unpublished order under Supreme Court

Rule 23). For the reasons set forth below, we affirm the judgment of

the appellate court. 
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BACKGROUND

In September 2004 defendant was charged by information with

one count of possession of less than one gram of a controlled

substance–heroin–with intent to deliver, within 1,000 feet of a school

(720 ILCS 570/401(d), 407(b)(2) (West 2004)), and one count of

possession of less than one gram of a controlled

substance–heroin–with intent to deliver (720 ILCS 570/401(d) (West

2004)). Prior to trial, defendant was in court on December 14, 2004,

when his privately retained counsel sought a reduction in defendant’s

bond. The State objected, noting, among other things, that “defendant

is [Class] X mandatory *** because he has three felonies in his

background, including a robbery and a burglary.” The court granted

defendant’s motion, reducing the bond from $60,000 to $25,000. On

the next court date, January 12, 2005, defendant was present when the

State informed the court that a previously tendered offer to accept a

plea to a “reduced charge” had been rejected by defense counsel, and

“the offer is no longer available.” 

Defendant’s trial, which was before a different judge, took place

in spring 2006. Chicago police officer L. Olivares testified that about

noon on August 16, 2004, he was conducting plain-clothes

surveillance outside a courtyard building when he saw two different

women, on separate occasions, approach defendant outside the

building and give him an unknown amount of United States currency.

After defendant received the money, he would go to the building,

retrieve a small object from a plastic bag in a doorway, and give the

object to the woman. Olivares radioed his enforcement team, which

consisted of three officers, including Officer Vincent Francone.

Francone testified that when the enforcement team arrived at the

scene, the other two officers detained defendant, and Francone went

to a doorway in the courtyard building and recovered a plastic bag

containing six individual bags. Defendant was taken into custody.

Illinois State Police forensic chemist Monica Kinslow testified that she

performed tests on the contents of one of the six bags, which weighed

0.094 grams, and the tests were positive for heroin. 

After the State rested, defense counsel moved for a directed

finding. The circuit court granted the motion as to count I, possession

with intent to deliver within 1,000 feet of a school, because there was

not “any testimony about a school in the area or the distance from the
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alleged location to the school.” The court denied the motion as to

count II, possession with intent to deliver. 

Stephanie Scott testified for the defense that on August 16, 2004,

she went to the courtyard building at about 12:20 p.m. to meet

defendant for lunch. She arrived by bus and went to find defendant,

who worked for a construction company in the building. She knocked

on the door, defendant emerged, and they walked around to the front

of the building. As they walked, defendant gave her money to buy

lunch and bring it back. As she was crossing the street to get lunch, a

police car pulled up, a couple of officers jumped out and ran up to

defendant, and one of them handcuffed him. 

Defendant testified that on August 16, 2004, he was an

independent contractor working for the J.S. Barber Construction

Company in the courtyard building. Defendant denied selling cocaine

or any other controlled substance on that day. According to

defendant, immediately before he was arrested he was in his office in

the courtyard building looking at paperwork while waiting for Scott

to arrive. When she knocked on the door, he came out and they went

to the front of the building. Defendant gave Scott $20 to pick up

lunch, and at that point defendant saw a police car driving past, and

one of the officers saw defendant handing Scott the money. After

defendant gave Scott the money, she started across the street to get

lunch, and defendant went to a nearby stoop, sat down and started to

read a newspaper. The police car pulled up and two officers got out

and walked up to defendant. One of them handcuffed him and

searched him, and defendant was placed in the police car. 

The circuit court found defendant guilty of possession of a

controlled substance with intent to deliver, a Class 2 felony. Defendant

filed a motion for a new trial, and the court denied it. At sentencing,

which took place on June 27, 2006, the State noted that this was

defendant’s fourth felony conviction. According to the presentence

investigation report, defendant was previously convicted of burglary,

robbery, and possession of a controlled substance with intent to

deliver. He was sentenced for the burglary and robbery convictions in

1989, and for the possession of a controlled substance conviction in

1993. It was undisputed that the burglary was a Class 2 offense and

the possession with intent to deliver was a Class 1 offense. Defendant

thus had at least two prior convictions for Class 2 or greater offenses.
 1Section 5–5–3(c)(8) provides, in relevant part: “When a defendant, over

the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having

twice been convicted *** of an offense that contains the same elements as an

offense now classified in Illinois as a Class 2 or greater Class felony and

such charges are separately brought and tried and arise out of different series

of acts, such defendant shall be sentenced as a Class X offender.” 730 ILCS

5/5–5–3(c)(8) (West 2004). 

 2The record does not include the State’s specific plea offer to defendant.

However, it apparently was an offer to accept a plea of guilty to a reduced

charge with a sentence of three years’ imprisonment. 

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The State noted that, under section 5–5–3(c)(8) of the Unified Code

of Corrections (730 ILCS 5/5–5–3(c)(8) (West 2004)), defendant was

required to be sentenced as a Class X offender, with a range of 6 to

30 years’ imprisonment.1 The State sought a sentence greater than the

minimum, and defense counsel requested the minimum. 

In allocution, defendant stated, in pertinent part: 

“Excuse me, I’m sorry, your Honor, but I had no idea. I

had no idea what I was facing. I know it was my

responsibility, but I had no idea what I was facing for this type

of situation. 

Considering what my family is going through right now, I

wouldn’t [have taken] that chance. The offer that was made to

me, I would [have] jumped into it with both feet if I knew that

I was facing this type of situation. 

I’ve been trying hard. I’ve tried hard since the last time I

got out of jail. I kept the same job and stayed in the same

place since I’ve been home, since I’ve been home since ’95

because that almost destroyed me. I lost my first family and

my kids then. And I don’t want to lose my family again. I’m

41 years old. I’m fixin[g] to be 42. I can’t go through this

again, your Honor. I had no idea that if–I had no idea that,

Mr. Taylor, if you don’t take the three years[2] and you get

found guilty, you’re going to [get] six to 30, not that you

could *** get six to 30. That you probably–that you would

get six to 30. 
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[There’s] no way on God’s earth[ ] I would [have taken]

that chance knowing the situation, knowing me, and the

situation with my family.” 

Following defendant’s statement, the circuit court sentenced

defendant to seven years in the custody of the Department of

Corrections. In imposing sentence, the court stated it had considered

the arguments in aggravation and mitigation, as well as defendant’s

statement. The court added it was “mindful of the rehabilitation

potential of [defendant] *** the need to protect society *** [and] the

presentence investigation.” The court also ordered defendant to pay

various fees and fines. Defense counsel filed a motion to reconsider

sentence, which was denied. The court appointed appellate counsel to

represent defendant. 

On appeal, defendant argued that his statement at sentencing

implied defense counsel was ineffective for failing to advise him about

the possible penalties if he rejected the State’s plea offer. According

to defendant, the circuit court erred by failing to inquire into this

implicit pro se claim of ineffective assistance, to determine whether it

had potential merit and whether new defense counsel should be

appointed to argue the claim. The appellate court rejected defendant’s

argument, concluding that even if the statement at sentencing were

interpreted as a claim of ineffective assistance, the circuit court had no

duty to inquire into it where, inter alia, defendant was represented by

privately retained counsel. No. 1–06–3061 (unpublished order under

Supreme Court Rule 23). The appellate court affirmed defendant’s

conviction and sentence. The court also ordered a modification of

defendant’s fines and fees order to reflect $155 in credit for time

served in custody prior to sentencing. No. 1–06–3061 (unpublished

order under Supreme Court Rule 23). We allowed defendant’s

petition for leave to appeal. 210 Ill. 2d R. 315. 

ANALYSIS

This court has previously considered the issue of whether new

counsel should be appointed where a defendant brings a pro se

posttrial motion alleging ineffective assistance of counsel. In a line of

cases beginning with People v. Krankel, 102 Ill. 2d 181 (1984), the

following rule developed. New counsel is not automatically required
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in every case where a defendant brings such a motion. Instead, the

trial court should first examine the factual basis of the defendant’s

claim. If the court determines the claim lacks merit or pertains only to

matters of trial strategy, new counsel need not be appointed and the

pro se motion may be denied. However, if the defendant’s allegations

show possible neglect of the case, new counsel should be appointed

to argue the defendant’s claim of ineffective assistance. People v.

Moore, 207 Ill. 2d 68, 77-78 (2003) (citing cases); People v. Munson,

171 Ill. 2d 158, 199-200 (1996). “The appointed counsel can

independently evaluate the defendant’s claim and would avoid the

conflict of interest that trial counsel would experience if trial counsel

had to justify his or her actions contrary to defendant’s position.”

Moore, 207 Ill. 2d at 78. 

Defendant here argues his statement at sentencing was an

“implicit” claim of ineffective assistance of counsel, and the circuit

court therefore was required to conduct a Krankel inquiry. Defendant

contends the circuit court made no such inquiry. He argues, in

addition, that the appellate court erred in holding that a defendant

represented by privately retained counsel is not entitled to a Krankel

inquiry. Defendant notes that, in reaching this conclusion, the

appellate court relied on this court’s decision in People v. Pecoraro,

144 Ill. 2d 1 (1991). Defendant’s arguments present questions of law,

which we review de novo. See Moore, 207 Ill. 2d at 75. 

We turn to the question of whether defendant’s statement at

sentencing constituted a pro se claim of ineffective assistance of

counsel sufficient to trigger the circuit court’s duty to conduct a

Krankel inquiry. 

We note initially that nowhere in defendant’s statement at

sentencing did he specifically complain about his attorney’s

performance, or expressly state he was claiming ineffective assistance

of counsel. Defendant’s characterization of his statement as an

“implicit claim of ineffective assistance of counsel” is an

acknowledgment of this point. Defendant nevertheless argues that his

statement provided a “clear basis” for a claim of ineffective assistance.

Defendant correctly notes that “a pro se defendant is not required to

do any more than bring his or her claim to the trial court’s attention.”

Moore, 207 Ill. 2d at 79. In Moore, this point was supported by

citation to two appellate court decisions, People v. Giles, 261 Ill.
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App. 3d 833 (1994), and People v. Finley, 222 Ill. App. 3d 571

(1991). It is true that, similar to defendant here, neither the defendant

in Giles nor the defendant in Finley filed a conventional, written pro

se posttrial motion alleging ineffective assistance. Instead, in each case

the “claim” was included in correspondence to the trial court. In Giles,

“[a]fter defendant’s trial and before his sentencing hearing, defendant

sent a letter to the trial court criticizing his counsel’s performance.”

Giles, 261 Ill. App. 3d at 846. The letter included five separate bases

for claiming that counsel was ineffective. Similarly, in Finley,

following defendant’s conviction, he “wrote three letters to the trial

judge” providing the names of potential witnesses. Finley, 222 Ill.

App. 3d at 576. Defendant “charged that his public defender did not

attempt to contact these potential witnesses and that she ‘did not

represent me to the best of her ability.’ ” Finley, 222 Ill. App. 3d at

576. While neither of these “claims” was conventional, each

nonethelessexpressly complained about counsel’s performance, unlike

defendant.

The State responds that the record here fails to demonstrate a

“clear basis” for any allegation of ineffective assistance of counsel, and

the circuit court therefore had no duty to inquire into counsel’s

effectiveness. As the State correctly notes, there is nothing in

defendant’s statement specifically informing the court that defendant

is complaining about his attorney’s performance. Indeed, defendant

does not mention his attorney. In addition, because of the rambling

nature of defendant’s statement, it is amenable to more than one

interpretation. For example, according to the State, “defendant’s

statement merely shows regret at not accepting the more

advantageous plea deal before trial, and not that he rejected the offer

based upon a material misunderstanding of what sentence he faced.”

See People v. Grant, 71 Ill. 2d 551, 557-58 (1978) (rejecting

argument that trial court erred in failing to give particular jury

instruction, stating: “If a defendant does not articulate his theory ***

he cannot reasonably expect the trial court, unaided, to divine his

intent”). If defendant’s statement in the case at bar were deemed

sufficient to require a Krankel inquiry, few statements would be

insufficient. We agree with the State that defendant’s statement at

sentencing was insufficient to require such an inquiry. 

Because of our disposition of this appeal, we need not reach the
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remainder of defendant’s arguments, including defendant’s claim that

the appellate court erred in holding, pursuant to Pecoraro, that a

defendant represented by privately retained counsel is not entitled to

a Krankel inquiry. We express no opinion regarding that decision by

the appellate court, which is irrelevant to our holding that it was

defendant’s statement in itself which was insufficient to require such

an inquiry.

CONCLUSION

We affirm the judgment of the appellate court, but for reasons

other than those set forth by that court. 

Affirmed.

JUSTICE BURKE, specially concurring:

I agree with the majority’s conclusion that defendant’s statement

to the circuit court was insufficient to warrant an inquiry pursuant to

People v. Krankel, 102 Ill. 2d 181 (1984). I write separately because

I believe we must also address defendant’s claim that the appellate

court erred in holding, pursuant to People v. Pecoraro, 144 Ill. 2d 1

(1991), that a defendant represented by privately retained counsel is

not entitled to a Krankel inquiry.

When interpreting Pecoraro, our appellate court has reached

contradictory conclusions regarding the appointed counsel/private

counsel issue. In People v. Shaw, 351 Ill. App. 3d 1087, 1092 (4th

Dist. 2004), the appellate court noted that the defendant, “as in

Pecoraro,” was represented by private counsel and held, similar to the

appellate court below, that a Krankel inquiry was not required. In

People v. Johnson, 227 Ill. App. 3d 800, 810 (1st Dist. 1992), on the

other hand, the court stated: “[W]e do not believe Pecoraro stands for

the proposition that a trial court is free to automatically deny a pro se

request for new counsel simply because the defense counsel who was

allegedly ineffective was privately retained.” 

The primary reason we allowed the petition for leave to appeal in

the case at bar was to resolve the conflict in our appellate court on
 3The dissenting justice disagreed, arguing it was “irrelevant” whether

counsel was appointed or retained. “It is as equally inappropriate for private

counsel to argue his incompetence at a post-trial hearing as it is for an

appointed public defender.” (Emphasis in original.) Pecoraro, 144 Ill. 2d at

23 (Clark, J., dissenting). 

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this issue. Yet, the majority makes no effort to do so. Instead, the

majority assumes, without deciding, that Krankel applies to privately

retained counsel since it addresses the merits of defendant’s claim on

a factual basis. Rather than simply assuming that Krankel applies to

privately retained counsel, I would address the conflict in the appellate

court and clarify our holding in Pecoraro. 

In Pecoraro, the defendant filed posttrial motions, both pro se and

through his counsel, alleging ineffective assistance of counsel, and the

trial court denied the motions. On appeal, the defendant argued that,

under Krankel, the trial court should have appointed other counsel to

argue his motions alleging ineffective assistance. This court

distinguished Krankel and held that it did not apply. The court stated:

“Unlike Krankel, where defendant was represented by an

appointed public defender at both trial and post-trial motions,

defendant Pecoraro retained private counsel to represent him

at trial and in post-trial motions. It was not within the trial

court’s rubric of authority to advise or exercise any influence

or control over the selection of counsel by defendant, who

was able to, and did, choose counsel on his own accord.

[Citation.] Moreover, the trial judge could not force defendant

to retain counsel other than that chosen by defendant.

[Citation.] Defendant and his counsel were the only parties

who could have altered their attorney-client relationship.

Defendant could have retained other counsel to represent him

prior to the hearing of his post-trial motions.” Pecoraro, 144

Ill. 2d at 15.

We concluded, “Krankel is a fairly fact-specific case, and the

circumstances in the case at hand, where defendant retained his own

private counsel and did not request that he be represented by other

counsel, do not warrant the application of Krankel.” Pecoraro, 144

Ill. 2d at 15.3
 4The attorney had previously represented the murder victim. 

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As noted above, the appellate court has reached contradictory

conclusions as to how to read Pecoraro. To read Pecoraro as

distinguishing between appointed and retained counsel would create

a conflict with Cuyler v. Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333,

100 S. Ct. 1708 (1980). In Sullivan, a habeas case, the respondent

alleged ineffective assistance of counsel based on potential conflicts

of interest arising from privately retained counsel’s representation of

multiple defendants. The petitioners argued, in response, that the

alleged failings of privately retained counsel could not provide the

basis for a writ of habeas corpus. The Court rejected this argument.

“A proper respect for the Sixth Amendment disarms

petitioner[s’] contention that defendants who retain their own

lawyers are entitled to less protection than defendants for

whom the State appoints counsel. We may assume with

confidence that most counsel, whether retained or appointed,

will protect the rights of an accused. But experience teaches

that, in some cases, retained counsel will not provide adequate

representation. The vital guarantee of the Sixth Amendment

would stand for little if the often uninformed decision to retain

a particular lawyer could reduce or forfeit the defendant’s

entitlement to constitutional protection. Since the State’s

conduct of a criminal trial itself implicates the State in the

defendant’s conviction, we see no basis for drawing a

distinction between retained and appointed counsel that would

deny equal justice to defendants who must choose their own

lawyers.” Sullivan, 446 U.S. at 344-45, 64 L. Ed. 2d at 344,

100 S. Ct. at 1716. 

This holding was reaffirmed in Mickens v. Taylor, 535 U.S. 162,

152 L. Ed. 2d 291, 122 S. Ct. 1237 (2002), where the defendant, who

was convicted of murder, alleged ineffective assistance because one

of his court-appointed attorneys had a conflict of interest at trial.4 In

response to a dissenting justice’s suggestion “that a trial court must

scrutinize representation by appointed counsel more closely than

representation by retained counsel,” the Court cited Sullivan and

stated: “But we have already rejected the notion that the Sixth
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Amendment draws such a distinction.” Mickens, 535 U.S. at 168 n.2,

152 L. Ed. 2d at 302 n.2, 122 S. Ct. at 1242 n.2, citing Sullivan, 446

U.S. at 344, 64 L. Ed. 2d at 344, 100 S. Ct. at 1716.

To read Pecoraro as prohibiting a Krankel inquiry simply because

counsel was retained would conflict with Supreme Court authority

and would be a violation of the sixth amendment right to effective

assistance of counsel. Accordingly, I would resolve the conflict in the

appellate court by clarifying that Pecoraro does not stand for the

proposition that Krankel only applies to appointed counsel.