People v. Flemming, 2014 IL App (1st) 111925 (August).
Defeat ineffective assistance of counsel claim from the get-go in a Krankel hearing.
It is only a matter of time before you give your heart, soul and your time to an ungrateful client. It happens. It just does. You know exactly how it comes up. It is either at the sentencing hearing or sometime after client doesn’t get something he wants. That is when you get ratted out to the judge as being ineffective.
So What Happened in This Case?
Defendant was charged with murder and second degree murder.
This was a drug fueled stabbing, in part because, the victim was caught in the bathroom with Defendant’s girlfriend. Defendant testified he was only trying to get his girlfriend out the apartment when he was attacked by the victim and his friend.
Jury did not quite go along with his version of events and convicted him of murder.
Ineffective Assistance of Counsel Raised
At the sentencing hearing Defendant made a pro se motion, and claimed that defense
counsel was ineffective. His claims were that:
- Counsel failed to present evidence of the victim’s prior violent or aggressive behavior
- Counsel did not corroborate his theory of self defense, and
- Counsel did not tell him that the second victim was stabbed six times (Defendant thought it was only 3 times)
The court then asked the prosecutor to cross examine defense counsel on these issues. After the defense attorney answered the questions, the court concluded that defense counsel did discuss the number of wounds with Defendant and found it was trial strategy to not get into the victim’s background.
Issue on Appeal
The legal question the appellate court was considering was whether or not the prosecutor’s questioning of the defense attorney turned this situation into a full blown adversarial hearing leaving Defendant without counsel?
The Law on Pro Se Claims of Ineffective Assistance of Counsel
Pro se claims of this sort are also called Krankel motions or a Krankel statement. A Krankel hearing generally describes the procedure a judge takes after defendant raises his pro se claim of ineffective assistance. See People v. Krankel, 102 Ill.2d 181, 464 N.E.2d 1045 (1984).
After an initial claim of ineffective of counsel is raised, the trial court should first examine the factual matters underlying the defendant’s claim. The court’s first assignment is to determine whether new counsel should be appointed. See People v. Moore, 207 Ill. 2d 68, 78(2003).
In considering this initial inquiry, “[t]he operative concern for the reviewing court is whether the trial court conducted an adequate inquiry into the defendant’s pro se allegations of ineffective assistance of counsel.” People v. Moore, 207 Ill. 2d 68, 78 (2003).
If the court determines that the claim lacks merit or pertains only to matters of trial strategy, then it need not appoint new counsel and may deny the pro se motion. Id. at 78. If, however, the court finds that the allegations show possible neglect of the case, the case then proceeds to the second step of a Krankel hearing, an adversarial proceeding where new counsel must be appointed to represent the defendant on his pro se claim of ineffective assistance. Id. at 78.
So Before an Actual Adversarial Hearing
So before an actual adversarial hearing is conducted, where Defendant is definitely represented by new counsel, the court first determines if there is any merit to defendant’s claims of neglect by trial counsel.
The judge must gather the facts in order to decide if the Defendant’s claims should be dismissed outright for one of two reasons:
- Patently frivolous or
- A strategic decision by counsel or Defendant.
If the judge has decided that the Defendant’s claims won’t be dismissed outright, then the court must appoint new counsel and carry the matter over for the full blown adversarial hearing.
No Set Method
There is no set format for how an initial inquiry into a defendant’s pro se allegations of ineffective assistance of counsel should be conducted. During an initial inquiry:
“Some interchange between the trial court and trial counsel regarding the facts and circumstances surrounding the allegedly ineffective representation is permissible and usually necessary in assessing what further action, if any, is warranted on a defendant’s claim. Trial counsel may simply answer questions and explain the facts and circumstances surrounding the defendant’s allegations. [Citations.] A brief discussion between the trial court and the defendant may be sufficient. [Citations.] Also, the trial court can base its evaluation of the defendant’s pro se allegations of ineffective assistance on its knowledge of defense counsel’s performance at trial and the insufficiency of the defendant’s allegations on their face.”
Moore, 207 Ill. 2d at 78-79.
In other words, a trial court’s method of inquiry at a Krankel hearing is somewhat flexible. People v. Fields, 2013 IL App (2d) 120945, ¶ 40.
“If the State’s participation during the initial investigation into a defendant’s pro se allegations is anything more than de minimis, there is a risk that the preliminary inquiry will be turned into an adversarial proceeding, with both the State and trial counsel opposing the defendant.” Id. ¶ 40.
Was There Error in This Case?
No, there was not any error in this case.
The State’s participation here was de minimis. All it did was ask defense counsel a few specific questions, at the court’s direction and without editorializing or argument. It blandly stated the questions and did not advocate against defendant’s position in any way. There was no adversarial edge to the proceeding. It was a properly conducted and sufficient initial inquiry into defendant’s pro se claims.
Accordingly, the court did not err in failing to appoint new counsel for defendant’s claim of ineffective assistance of counsel.
The important things to remember after a Defendant has ratted you out to the judge is that the judge must gather the facts so that she can –
- Dismiss outright or
- Appoint new counsel.
That is all that happens initially, you can help ensure that the judge is going to make the right call by making sure that the judge has all the relevant information needed to make this decision.
And your job, as defense counsel, is to make sure that the prosecution keeps their mouth shut, for the most part. Was that too harsh? Your job is to make sure that the prosecution maintains a de minimis participation level.
I know we give up valuable family time when trial time comes around. Don’t let a Defendant unhappy with the trial results let things get messy.