People v. Roddis, 2018 IL App (4th) 170605 (November). Episode 568 (Duration 13:18)
Steigmann clarifies a few things about Krankel Hearings.
Defendant was convicted of aggravated battery for causing a laceration to his girlfriend’s head.
The case had already been through an appeal where defendant won a new Krankel hearing. On remand, the trial court initially appointed new counsel to represent defendant on his ineffective assistance of counsel claims. However, at a subsequent hearing, the trial court allowed that counsel to withdraw because of a potential conflict.
On remand, the trial court conducted a hearing at which defendant was present.
Originally, the judge appointed new counsel. When they ready to get into the claims of ineffective assistance the newly appointed counsel informed the court that he had a conflict because he had represented the victim in the case.
The attorney withdrew from the case, and the judge believed it could proceed with a “pre-inquiry Krankel” hearing without an attorney representing defendant. The judge continued the case again so that the trial attorney could be present.
Trial Court’s Instructions
The trial court explained to defendant what would take place at the next hearing.
The court stated it had to get through one step before appointed counsel’s involvement in this case becomes necessary. The court added that at the next hearing, defendant would be allowed to elaborate on the claims raised in his motion alleging ineffective assistance of counsel.
The trial attorney would be allowed to respond.
The State would be present, but the State’s “involvement on that date is to be almost nothing.”
The court further stated that if it found the allegations against trial counsel were “well-grounded,” then either new counsel would be appointed to represent defendant.
What Actually Happened
The judge was calling this a “pre-inquiry Krankel” hearing.
Defendant was present pro se, as were his earlier trial attorneys. Also present was the prosecutor.
The court said that it would first summarize each allegation. Then defendant would be allowed to elaborate and trial counsel would be permitted to respond. The court then stated that after hearing from counsel, it would “rule as to whether or not I find that there was ineffective assistance in this situation.”
The court later added that
“once we determine where we are at the end of the day, if the allegations are denied, I’ll probably go ahead and appoint you counsel *** and then we’ll deal with the rest of your motion for reduction of sentence. If I find that the allegations are founded, I’ll have to appoint separate counsel, and we will proceed to a full-blown Krankel hearing.”
Defendant primarily contended that his trial counsel was ineffective for failing to impeach the victim with various text messages. Defendant explained that he gave his attorney copies of texts and emails from her in which she said she would speak to defendant’s lawyer for $1000, that she had been “playing” him the whole time to get money, and that the incident was an accident.
Trial counsel did not impeach the victim with these messages on cross examination.
Defendant also alleged his counsel (1) “tricked” him into waiving his right to a jury trial, (2) indicated that counsel personally knew the judge, and (3) assured defendant that the State would dismiss the charges or offer a lower plea once it saw the victim’s text messages.
Trial Attorney’s Response
Counsel responded that, from what he remembered, he got the victim to admit she thought her injuries were the result of an accident.
He explained that once she admitted it was an accident, he had all the impeachment he needed to show defendant did not knowingly cause great bodily harm.
The trial attorney denied making any of the other representations claimed by defendant.
Trial Judge’s Ruling
The trial court then stated that it had considered the pleadings, the ARDC letter, and the statements of defendant and his previous lawyers and found “the defendant’s allegations do not amount to ineffective assistance of counsel.” Accordingly, the court would “not proceed to a full Krankel hearing.”
The court stated it thought defendant was “well represented” and that the case was “one of credibility.” The court noted that despite the evidence that impeached the victim’s testimony, the court found she was credible while defendant was not.
The court concluded, “I’m satisfied that you were properly represented” and found again “that there was no ineffective assistance.”
New Counsel Still Appointed
Nonetheless, the court appointed the public defender to represent defendant on the remainder of his posttrial motion, which was a motion to reduce sentence.
Defendant appeals, arguing that the trial court erred by addressing the merits of his ineffective assistance of counsel claims instead of determining whether new counsel should have been appointed.
Confusion & Misunderstanding Prevail
We agree with Defendant that the trial court erred by addressing the merits of his ineffective assistance claims instead of determining whether counsel should have been appointed.
The record in the present case reveals that the trial court misunderstood both the purpose of a Krankel hearing and how one should be conducted. Because we have seen too many cases in which trial courts suffer from the same confusion, we believe a thorough discussion of Krankel hearings might be helpful.
Purpose Of The Krankel Inquiry
The common law procedure first recognized in Krankel “serves the narrow purpose of allowing the trial court to decide whether to appoint independent counsel to argue a defendant’s pro se posttrial ineffective assistance claims.” People v. Patrick, 2011 IL 111666, ¶ 39, 960 N.E.2d 1114.
Thus, “a Krankel hearing is a term of art to describe the hearing the court must conduct when a defendant pro se has raised a posttrial claim regarding his counsel’s ineffective assistance.” People v. McGath, 2017 IL App (4th) 150608, ¶ 51, 83 N.E.3d 671. The only issue to be decided at a Krankel hearing is whether new counsel should be appointed.
Accordingly, there are only two possible outcomes when a trial court conducts a Krankel hearing:
(1) the court appoints new counsel who should then conduct an independent investigation into the defendant’s ineffective assistance claims and take whatever action counsel thinks would be appropriate or
(2) the court does not appoint new counsel and posttrial matters proceed as in any other case.
Accordingly, at a Krankel hearing, the trial court does not—and cannot—reach the merits of an ineffective assistance claim; the court simply determines whether it is appropriate to appoint new counsel for the defendant to investigate such claims.
The “preliminary inquiry” to which Krankel cases sometimes refer is the preliminary inquiry into the factual basis, if any, of a defendant’s claims of ineffective assistance of counsel to determine whether appointing new counsel to pursue those claims is necessary. The Krankel hearing as a “neutral and nonadversarial” and an opportunity for the trial court to “initially evaluate” a defendant’s pro se claims. This initial and nonadversarial evaluation is not the forum at which the merits of a claim of ineffective assistance of counsel are resolved. See also People v. Jolly, 2014 IL 117142, ¶ 38.
If the appointment of new counsel is warranted, determining whether the defendant actually received ineffective assistance of counsel is for another day; the court does not reach the merits of such claims at the Krankel hearing.
No True Second Stage
Though occasionally mentioned in some cases, there is no true second stage or subsequent Krankel inquiry because the sole issue to be resolved at a Krankel hearing is whether new counsel should be appointed.
Once the trial court determines whether to appoint new counsel, the Krankel inquiry is over; if the court appoints new counsel, the case proceeds regarding the defendant’s claims of ineffective assistance as determined by new counsel.
Courts have used the terms “Krankel hearing,” “Krankel inquiry,” “preliminary Krankel inquiry,” and words to that effect interchangeably; this lack of consistency may be responsible for some of the confusion that exists, as seen in the proceedings in this case.
What If New Counsel Is On The Case?
The narrow and proper function of a Krankel hearing becomes clear when contrasted with a situation in which a defendant, who hires new counsel, files a posttrial motion alleging ineffective assistance of his original trial counsel. In such instances, no Krankel hearing is necessary because the defendant is already represented by counsel to investigate and appropriately pursue the defendant’s claims of ineffective assistance of trial counsel.
In those cases, courts routinely conduct hearings—at which both the defense and State fully participate—on the merits of those motions. And no Krankel hearing is necessary because the sole question at a Krankel hearing is whether the court should appoint the defendant new counsel to investigate and pursue the defendant’s ineffective assistance claims. When the defendant already has hired new counsel to do that, the issue of the court’s appointing counsel simply does not exist.
Perhaps terms like “preliminary Krankel hearing” arose because the question of the appointment of counsel to pursue pro se claims of ineffective assistance is necessarily preliminary to the consideration of such claims on their merits. Whatever the reason, the function of the Krankel hearing remains simply to decide whether to appoint counsel—its “narrow purpose” —and not to reach the merits of the ineffective assistance claims.
Whether the defendant is then represented by appointed or retained counsel, the merits of an ineffective assistance claim are addressed at a subsequent hearing in which both parties can participate.
When Is A Krankel Issue Raised?
A Krankel issue may be raised any time after a conviction but before the trial court’s judgment is final.
The issue is most commonly raised between conviction and sentencing, but need not be. For instance, a defendant, as in the present case, may raise that claim on a motion to reconsider sentence.
Krankel Hearing Proceedings – Gathering Information
Initially, it often is a sound practice for the trial court to discuss the allegations with the defendant in open court.
Because the function of the Krankel hearing is to give the defendant an opportunity to flesh out his claim of ineffective assistance,
(1) asking the defendant about his claims provides clarity for the record and thereby limits the issues on appeal. In addition,
(2) “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.”
(3) The trial court may also rely upon “its knowledge of defense counsel’s performance at trial and the insufficiency of the defendant’s allegations.”
Krankel Hearing Proceedings – What Not To Do
What the trial court may not do, however, is seek input from the State on the merits of the defendant’s pro se claims of ineffective assistance of counsel. Doing so converts this initial and nonadversarial proceeding into a contested hearing on the merits—a hearing at which the defendant would necessarily be forced to prove the merits of his claims pro se against the arguments of the State’s Attorney.
Such a hearing “cannot reveal, in an objective and neutral fashion, whether the circuit court properly decided that a defendant is not entitled to new counsel.”
When New Counsel Should Be Appointed
As shown by the record in this case, trial courts and counsel are sometimes confused regarding the purpose of a Krankel hearing, thinking the issue to be resolved is whether the defendant in fact ultimately received ineffective assistance of counsel. As explained earlier, this view is not correct.
Instead, the sole issue to be resolved by a Krankel hearing is whether the court should appoint new counsel for a defendant so that the new counsel can take whatever action regarding defendant’s claim of ineffective assistance that counsel thinks would be appropriate.
If the trial court determines that the claim lacks merit or pertains only to matters of trial strategy, then the court need not appoint new counsel and may deny the pro se motion. However, if the allegations show possible neglect of the case, new counsel should be appointed.
It bears mentioning that the purpose of appointing counsel pursuant to Krankel is for new counsel to investigate the defendant’s pro se claims of ineffective assistance of trial counsel—not to pursue other claims of error, like those commonly raised in posttrial motions.
How Does A Judge Know When A Claim Lacks Merit?
There are generally four primary ways a trial court, when conducting a Krankel inquiry, may conclude that an ineffective assistance claim “lacks merit” so that the court need not appoint new counsel to pursue the defendant’s ineffective assistance claim.
Those four primary ways are when the court determines that the defendant’s ineffective assistance claim is
(3) legally immaterial, or
(4) pertaining solely to an issue of trial strategy.
See People v. Johnson, 159 Ill. 2d 97, 126, 636 N.E.2d 485, 498 (1994); Moore, 207 Ill. 2d at 78.
An allegation is conclusory when a defendant is unable to add any additional factual basis to support his bare allegation from which a court could infer a basis in support of an ineffective assistance claim. For instance, in People v. Towns, 174 Ill. 2d 453, 467, 675 N.E.2d 614, 620-21 (1996), the defendant’s allegations were properly deemed conclusory because he claimed his counsel should have investigated “relevant facts and witnesses,” but defendant offered no explanation as to what or to whom he was referring.
An allegation is conclusory when despite the trial court’s making every effort to ascertain the nature and substance of defendant’s ineffectiveness claim, the defendant provided neither a basis nor facts from which the court could infer a basis in support of such claim.
A claim is misleading—and therefore lacks merit—when the record clearly rebuts or contradicts the substance of the allegations, demonstrating that the claim for ineffective assistance is unsupported. In Johnson, the defendant claimed his attorneys failed to investigate police misconduct, including that he was beaten and that a witness lied under oath. Johnson, 159 Ill. 2d at 126. However, the record revealed that trial counsel presented significant evidence of the alleged police misconduct and, contrary to the defendant’s claims, the witness admitted to the very fact defendant claimed he lied about.
A claim may also be misleading when the inquiry at the Krankel hearing reveals that the defendant’s assertions are false and do not support a claim of ineffectiveness. For example, a defendant may claim to have an exculpatory witness whom his counsel failed to present. However, after an inquiry at the Krankel hearing, the court may learn (from defense counsel or defendant) that the witness’s testimony was (1) not helpful to the defendant or (2) contrary to his claims. See People v. Nitz, 143 Ill. 2d 82, 135, 572 N.E.2d 895, 919 (1991) (court determined that witnesses’ testimony was not in accord with defendant’s representations and was actually inapposite to his claims).
If a claim that is taken as true, either on its face or after inquiry, would still not support a finding of ineffective assistance, then it is legally immaterial. In People v. Giles, 261 Ill. App. 3d 833, 846, 635 N.E.2d 969, 979 (1994), the defendant was convicted of aggravated criminal sexual assault and argued that his trial counsel was ineffective for not arguing the victim’s hymen was not torn, despite the medical evidence supporting such a finding.
The court noted that only slight contact with the victim’s vagina was required to support the conviction, and thus, the medical evidence had no bearing on counsel’s performance.
Matter of Trial Strategy
A claim may be meritless if it pertains solely to a matter of trial strategy. When dealing with matters of trial strategy, the trial court at the Krankel hearing must determine if the allegations and factual bases could support a claim that trial counsel was objectively unreasonable. If the allegations and factual bases could support that claim, new counsel should be appointed.
The Standard of Review
Some courts, including this one, have remarked that “if the trial court properly conducted the entire Krankel inquiry and reached a determination on the merits of the defendant’s ineffective assistance claims, we will reverse only if the trial court’s action was manifestly erroneous.” People v. Robinson, 2017 IL App (1st) 161595, ¶ 90, 93 N.E.3d 573; see People v. Sims, 2014 IL App (4th) 130568, ¶ 142, 9 N.E.3d 621 (substantially the same).
We now believe these cases were not correctly decided.
We hold that a trial court commits reversible error when it conducts a Krankel hearing and concludes—on the merits—that there was no ineffective assistance, and we note that we are not the first court to so conclude.
The Facts of This Case
Here, the trial court erred when it conducted the hearing by addressing the merits of defendant’s ineffective assistance claim without appointing new counsel for defendant. The record clearly demonstrates the court, believing it was conducting a Krankel hearing, ruled on the merits of defendant’s ineffective assistance claims.
Indeed, the trial court indicated as much, stating that it would “rule as to whether or not I find that there was ineffective assistance in this situation,” as well as the court’s later findings at that hearing that “the defendant’s allegations do not amount to ineffective assistance of counsel” and “I’m satisfied you were properly represented, *** and there was no ineffective assistance.”
This was error.
The court reached the wrong result because it made the wrong inquiry.
How a Krankel Hearing Should Proceed On Remand
First, when a case is remanded for a Krankel hearing, the trial court should not automatically appoint new counsel for the defendant.
- In the usual case, the appellate court remands for a Krankel hearing because the record is inadequate. Therefore, on remand, the trial court should familiarize itself with the defendant’s claims of ineffective assistance and review any written submissions, as well as any transcripts of the proceedings if the allegations were raised orally.
2. Then, in the usual case, the court should require the attendance of the defendant’s trial counsel at the Krankel hearing. Once the State, defendant, and defendant’s trial counsel are present, the court should review the allegations and ask the defendant if he has anything to add, thereby giving the defendant the opportunity to clarify or expand upon his previous claims.
3. Then, the court should allow defendant’s trial counsel to respond. In evaluating the defendant’s claim, the court may ask any questions of defense counsel or defendant the court believes to be helpful.
4. The court should not allow the State to respond or participate during the Krankel hearing.
After the court has engaged in what it believes to be an adequate inquiry into the defendant’s claims, it should decide if the defendants claims are…
(3) legally immaterial, or
(4) pertaining solely to an issue of trial strategy.
At this point, the trial court can determine whether new counsel should be appointed to pursue the defendant’s claim of ineffective assistance as determined by the new counsel.
Because this appeal is the second time this court has addressed these issues in this case, in the interests of judicial economy, we remand with directions to appoint new counsel for defendant, so that the new counsel may take whatever action the new counsel deems appropriate regarding defendant’s pro se claims of ineffective assistance of counsel.
For the reasons stated above, we reverse the trial court’s judgment and remand with directions.
- Additional Krankel Hearing Cases
- Episode 307 – People v. Ayres, 2017 IL 120162 (February) (Exactly What Does Defendant Have To Say To Trigger A Krankel Inquiry?)
- Episode 528 – People v. Jindra, 2018 IL App (2d) 160225 (July) (Defendant Has To Make A Clear Complaint About His Attorney)
- Episode 383 – People v. Brown, 2017 IL App (3d) 140921 (June) (Attorney Argues For Her Own Ineffectiveness Ineffectively)