People v. Jolly

2013 IL App (4th) 120981
FILED
October 4, 2013
NO. 4-12-0981 Carla Bender
th
4 District Appellate
IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
JOHN WILLIE JOLLY, ) No. 10CF239
Defendant-Appellant. )
) Honorable
) Scott Drazewski,
) Judge Presiding.
______________________________________________________________________________

JUSTICE POPE delivered the judgment of the court, with opinion.
Presiding Justice Steigmann and Justice Holder White concurred in the judgment
and opinion.

OPINION

¶1 On July 19, 2012, this court remanded this case to the trial court " 'for the limited

purpose of allowing the trial court to conduct the required preliminary investigation' to determine

if a full evidentiary hearing" into defendant John Willie Jolly's pro se claims of ineffective

assistance of counsel should be held. People v. Jolly, 2012 IL App (4th) 110033-U, slip order at

¶ 14 (quoting People v. Moore, 207 Ill. 2d 68, 81, 797 N.E.2d 631, 640 (2003)). On September

26, 2012, the court held a hearing pursuant to this court's order and ruled it would not appoint

new counsel for defendant because "each of the allegations lacks merit and/or pertains to trial

strategy." Defendant appeals, arguing the trial court's denial of defendant's request for new

counsel must be reversed where the court "conducted a quasi-evidentiary hearing at which the

State presented testimony and argument" instead of a preliminary hearing pursuant to People v.
Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984). We affirm.

¶2 I. BACKGROUND

¶3 On March 19, 2010, the State charged defendant with unlawful delivery of a

controlled substance within 1,000 feet of a church (count I) (720 ILCS 570/407(b)(2) (West

2008)) and unlawful delivery of a controlled substance (count II) (720 ILCS 570/401(d)(i) (West

2008)). On July 19, 2010, the State dismissed count I and proceeded only on count II.

¶4 At defendant's trial, the State called Robbie Gunn. Gunn testified he had a drug

problem, which started when he was 17. He was 45 years old at the time of trial. Gunn sold

drugs, stole things, and did whatever else was necessary to acquire drugs. He testified he was a

convicted felon, had multiple convictions for delivery of a controlled substance, and had served

time in prison.

¶5 Detective Raisbeck of the Bloomington police department arrested Gunn on

September 22, 2009, for delivery of heroin or crack in June 2009. Gunn testified he was selling

drugs to get drugs. Gunn was never charged for this offense. After Gunn assisted the police as a

confidential source, Detective Raisbeck was instrumental in getting a pending misdemeanor

against Gunn dismissed.

¶6 On March 3, 2010, Gunn told Detective Raisbeck someone named "Bud" would

sell Gunn cocaine. Gunn identified defendant as "Bud." On March 18, 2010, Gunn met with

Detective Raisbeck again and called defendant in the detective's presence. Gunn recognized

defendant's voice on the phone. Gunn told defendant he had "200" to spend, but defendant said

he only had a "50" but would try to get the rest. Gunn called defendant back 10 or 15 minutes

later. Defendant said he still only had the "50." Defendant said he would bring it to Gunn.

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¶7 Gunn went to their normal transaction spot on Mulberry. Detective Raisbeck gave

Gunn $50. At the meeting place on Mulberry, defendant drove up and lowered the passenger

side window of his vehicle. Gunn gave defendant $50, and defendant spit the drugs out of his

mouth and gave them to Gunn. Defendant said he would try to get "150" more. After defendant

drove away, Detective Raisbeck came and got the drugs from Gunn. Gunn stated Detective

Raisbeck gave him some money for helping him.

¶8 On cross-examination, Gunn testified he needed money because he did not have a

job and needed funds to live. Gunn was not wearing any kind of surveillance equipment during

the transaction with defendant.

¶9 Detective sergeant Kenneth Bays testified he was part of the surveillance detail

watching defendant. After the controlled buy, Sergeant Bays stopped at a stop sign, and

defendant stopped behind him. He then moved out of the way as the police "takedown units" got

behind defendant. The "takedown units," three police cars with lights and sirens on, attempted to

stop defendant but he refused to stop. Instead of stopping, defendant accelerated his vehicle.

After a short chase, Sergeant Bays told the officers to stop the pursuit because they knew who

defendant was and did not want to endanger the public. Defendant was apprehended about 90

seconds later.

¶ 10 On cross-examination, Sergeant Bays testified the police cars pursuing defendant

did not have oscillating police lights on the roofs of the vehicles and were not "black and

whites."

¶ 11 Patrol sergeant Mike Gray, who was a detective in the vice unit at the time of

defendant's arrest, testified he observed Gunn from the point he left the presence of Detective

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Raisbeck until the transaction with defendant. Sergeant Gray identified defendant as the driver

of the vehicle that stopped for Gunn. Defendant leaned toward Gunn, who was on the passenger

side of defendant's vehicle. Sergeant Gray saw movement from defendant's shoulders and arms

but did not actually see the hand-to-hand transaction. After defendant's car pulled away, Gunn

met with Detective Raisbeck.

¶ 12 Officer Rick Beoletto testified he was a passenger in an unmarked Camaro driven

by Officer Chambers on the day in question. The police lights on the vehicle are located at the

roof line on the inside of the vehicle. The officers were instructed to stop a red vehicle with a

white top. Officer Chambers activated the emergency lights on the Camaro. The driver of the

red vehicle looked in the rearview mirror and began "shaking his head in a no fashion." Officer

Chambers then moved his vehicle out of the way so a different police vehicle with a siren could

pursue the red vehicle. After it became clear the vehicle was not going to stop, the police

vehicles pulled over to the side of the road and started looking for items they thought were

thrown from the suspect vehicle.

¶ 13 On cross-examination, Officer Beoletto stated the items thrown out the window of

defendant's vehicle appeared to be shredded paper. He did not personally recover any of the

items thrown out of the vehicle's window, nor could he identify what was thrown from the

window.

¶ 14 Officer Brad Melton assisted in one of the "takedown cars." He was in uniform in

an unmarked Chevrolet Impala, which had a light bar on the top of the windshield and lights in

the grill on the front and back of the vehicle and a regular police siren. Officer Melton's vehicle

was never directly behind defendant's vehicle. He testified he arrested defendant later while

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defendant was on foot. Defendant had a cell phone in his hand at the time of his arrest.

¶ 15 Officer Bill Wright testified he was asked by Detective Raisbeck to make a traffic

stop on a maroon Buick with a white top. While pursuing the vehicle, he observed what

appeared to be paper coming out of the driver's side of the vehicle. He and the other officers did

not pursue the vehicle for safety reasons. Officer Wright testified he picked up some of the paper

that was thrown from the car. The paper turned out to be torn United States currency. Officer

Wright turned the pieces of currency he collected over to Detective Stephen Brown.

¶ 16 Detective Brown testified he was assigned to do presurveillance on defendant at

an apartment complex. He observed defendant get into an older model red car with a white or

off-white top. He testified he did not witness the other officers' pursuit of defendant's vehicle.

He pulled up to where the officers had stopped and were trying to pick things up out of the road.

Officer Wright gave Detective Brown what he picked up. Detective Brown documented and

logged the evidence. Detective Brown compared the bits and pieces of currency picked up from

the street with the photocopy of the money used by Gunn in the controlled buy. Detective Brown

testified the serial numbers on the bills used in the controlled buy matched the pieces recovered

on the street which had been thrown from defendant's car. Officer Melton provided Detective

Brown with a cell phone recovered from defendant at the time of his arrest. The phone had the

same number Gunn called to set up the controlled buy.

¶ 17 Detective Kevin Raisbeck testified he worked with Gunn as a confidential

informant after arresting Gunn in June 2009 for selling drugs. He had given Gunn $400 so far

for his help. On March 18, 2010, Gunn took part in a controlled buy for Detective Raisbeck.

Before the buy, Detective Raisbeck searched the vehicle he and Gunn would be riding in and

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Gunn himself. They then placed a series of calls to defendant. The money to be used in the

controlled buy was photocopied. Gunn called the number twice. Detective Raisbeck then drove

Gunn to the 900 block of West Mulberry and dropped him off. Detective Gray was in the area to

observe Gunn and the transaction. After Detective Gray told Detective Raisbeck the other

vehicle had left, Detective Raisbeck met with Gunn, who gave him a bag of cocaine he had just

purchased from defendant.

¶ 18 Detective Raisbeck testified he later interviewed defendant. Defendant said he

did not stop for the officers because he thought they were thugs trying to make him stop.

Defendant claimed he could not hear the sirens because his music was too loud. As for the

police lights, defendant said he could not see them because he did not have his glasses on.

Defendant told Detective Raisbeck he did not remember throwing money out the window of his

car.

¶ 19 Defendant chose not to call any witnesses.

¶ 20 The jury found defendant guilty of delivery of a controlled substance.

¶ 21 On October 25, 2010, defendant filed a pro se motion to reduce sentence, alleging

his trial attorney, Harvey Welch, was ineffective because he did not file a motion to reduce

defendant's bond, waived defendant's right to a speedy trial, failed to appear in court to represent

defendant, failed to provide defendant access to discovery, and did not diligently seek a

consultation with defendant to discuss trial strategy if trial became inevitable.

¶ 22 On November 23, 2010, defendant filed a pro se motion to amend the motion to

reduce sentence. In that motion, defendant argued Welch was not thorough in his representation

of defendant because he did not object to the State deeming itself an expert on currency, did not

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attack the credibility of the State's confidential source based on his criminal behavior and the fact

he remained free to testify against defendant, did not object to the lack of testimony from forensic

experts concerning the State's exhibits, and did not challenge the sufficiency of the evidence to

convict defendant.

¶ 23 Defendant also argued Welch failed to object to Detective Raisbeck identifying

defendant's voice on a recorded phone call from the jail and in a conversation with the State's

confidential source, failed to object to the State's introduction of cocaine to the jury without

anyone testifying it was cocaine, and failed to file a motion to suppress the marked money and

cocaine.

¶ 24 On September 26, 2012, the trial court held a hearing pursuant to this court's order

in People v. Jolly, 2012 IL App (4th) 110033-U, to determine whether new counsel needed to be

appointed for defendant and a full evidentiary hearing held on defendant's allegations of

ineffective assistance of counsel. Immediately prior to the start of the hearing, the court allowed

defendant's lawyer, Ronald Lewis, to leave the courtroom. Defendant proceeded pro se at the

hearing. The court noted Welch was available as a witness. According to the court:

"[Attorney Welch] is not appearing in any capacity, that being as

an attorney for Mr. Jolly, but is present in the event that either the

court, which I believe under the case law I would have the ability

to go ahead and make inquiry of Mr. Welch as to some of the

claims that were raised by Mr. Jolly, or, in the alternative, if the

State wished to call Mr. Welch as a witness, that I would have the

opportunity to hear from him as it relates to some of the assertions.

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 When I say some, specifically those assertions relating to

ineffective assistance of counsel from Mr. Jolly."

The court offered defendant the opportunity to exclude Welch from the courtroom. Defendant,

thereafter, requested Welch not be present until he was questioned.

¶ 25 The trial court informed the parties of its preference to keep the hearing "as

informal as possible recognizing that the ultimate determination is to make a good record so that

that way not only does the trial court, but the Appellate Court, if necessary, will understand what

issues were raised and what rulings, then, were made by the court with respect to those issues

that were raised." The court noted neither the Illinois Supreme Court nor the Appellate Court has

defined a specific method for conducting this type of preliminary hearing.

¶ 26 The trial court first allowed defendant to explain why he believed his trial counsel

was ineffective. Defendant told the court his trial counsel did not assert certain things during the

trial, did not contest other things, and did not impeach State witness Robbie Gunn, who was a

confidential source for the police. The court went through each of defendant's allegations of his

attorney's alleged ineffectiveness. The court verified with defendant he had been allowed to

explain or elaborate on all of his allegations of ineffectiveness.

¶ 27 The trial court then addressed the State and the following exchange occurred:

"[THE COURT]: What evidence does the State

wish to submit, that being, if anything, when I say evidence,

this is not a full evidentiary hearing, but does the State wish

to rebut the assertions or claims, in essence, by Mr. Jolly in

any manner at this time.

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 [THE STATE]: Yes, your Honor.

[THE COURT]: How so?

[THE STATE]: The State is prepared to address each of

Mr. Jolly's claims of ineffective assistance of counsel if the court

would wish to hear those.

[THE COURT]: Without any testimony, is that what you're

indicating? You just want to go ahead and proceed to argument?

[THE STATE]: We also have Harvey Welch.

[THE COURT]: Okay. Let's go ahead and, as I suggested

to Mr. Jolly previously, although I don't want to go ahead and

prevent argument, let's go ahead and save argument for the

appropriate time.

So at this time the State wishes to present some testimony

is what you're indicating?

[THE STATE]: That's correct, your Honor.

[THE COURT]: Recognizing or understanding that some

interchange between the trial court and trial counsel regarding the

facts and circumstances is permissible, and I want to make sure, for

purposes of the record, that whether or not the court conducts the

inquiry of Mr. Welch or counsel, that being asks the inquiry of Mr.

Welch, that, basically, it's an opportunity to Mr. Welch to address

the assertions, this is not an evidentiary hearing. There will be no

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 cross-examination of Mr. Welch.

Are you ready to call him?

[THE STATE]: Yes, your Honor.

[THE COURT]: All right. And I guess I should state, and

this is while counsel and Mr. Jolly are present as well, the same

applies to Mr. Jolly. There will be no cross-examination of Mr.

Jolly. The purpose of this hearing is a preliminary examination.

It's not a full evidentiary hearing. It affords both the court an

opportunity to hear from both Mr. Jolly and Mr. Welch and then

make a determination as to what, if any, further action is required."

Welch was then sworn to testify.

¶ 28 The trial court noted it could ask Welch questions regarding Jolly's allegations but

the State instead would be eliciting information from Welch. Welch testified he had no specific

recollection of missing any of Jolly's pretrial hearings but agreed the docket would be accurate as

to whether or not he missed any hearing and who filled in for him. Welch denied telling

defendant he was not prepared to proceed with his case at the time of trial. According to Welch,

he was prepared to proceed with the case at the time of trial and had been given ample time to

prepare his trial strategy.

¶ 29 With regard to Jolly's allegation Welch failed to consult with him about trial

strategy and the approach Welch would take at trial, Welch testified:

"That's not true. The situation that confronted ourselves

was that Mr. Jolly was given what I considered a terrible offer by

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 the McLean County [S]tate's [A]ttorney's office. It was 14 years,

as I recall, and the choices that I put to him were that he could

accept that offer, he could plead guilty to open, or he could go to

trial. Given the discovery we went over, I told him that we would

most likely not prevail at trial, but that he was not being given

much of a bargain for his plea, and so we discussed the discovery

and we discussed the various options, and I told him that if he took

the offer, that that would pretty much end matters. It is possible

always to file other pleadings, but if you accept a plea and a

specific sentence, I told him if he pled guilty to open, that would

also limit his options to complain later on though not as severely as

taking a totally consummated plea, and I told him that if he went to

trial, there would be, obviously, then more opportunities to

complain if that didn't turn out correctly, but, no, we had plenty of

time to go over the discovery. This was a delivery case and it was

fairly cut and dry, but those were the options that I presented to

him, and he made the choice to go to trial."

¶ 30 With regard to his failure to file a motion to reduce bond, Welch testified he

probably did not file such a motion because he did not believe it would result in any relief based

on his evaluation of the facts and circumstances of the case and defendant's prior record.

¶ 31 Welch testified he had been an attorney for over 30 years, had handled more than

1,000 criminal cases, and had tried over 100 criminal cases.

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¶ 32 With regard to defendant's complaint Welch did not file a motion to suppress,

Welch testified defendant had no evidence taken from his person or near his person subject to a

suppression motion. As for defendant's complaint Welch did not meet with him often enough,

Welch testified he estimated he met with defendant two or three times at the jail and had brief

conferences with defendant before various hearings on defendant's case. Welch testified he let

defendant see the discovery material and defendant had ample opportunity to view the material,

but supreme court rules prohibited him from giving defendant copies of the material.

¶ 33 As for his cross-examination of the State's confidential source, Welch did not

specifically recall the cross-examination. However, he testified he questioned all the witnesses to

the best of his ability.

¶ 34 After the State finished questioning defendant, the trial court asked Welch about

defendant's complaint Welch allowed the case not to be tried within the 120-day limit for a

speedy trial. Welch testified all requests for continuances were made in open court in defendant's

presence, and he believed defendant agreed to all of the continuances. According to Welch,

defendant never objected to Welch about the continuances at the times they were made.

¶ 35 The trial court also asked Welch about defendant's allegations regarding Welch's

cross-examination of the State's other witnesses. Welch responded he believed the witnesses

were cross-examined sufficiently on the relevant points in this case. According to Welch, his

choice as to what particular questions to ask the witnesses was strategic in nature.

¶ 36 The trial court next asked Welch about defendant's allegation Welch should have

called expert witnesses on matters involving currency, voice recognition, and identification of

controlled substances. Welch stated:

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 "As far as other experts, I do not believe, again,

strategically that given the nature of the charges, that there would

have been any other relevant testimony to be gained from any

expert witnesses. The voice recognition part, again, I think that

that related to a conversation subsequent to the events in question

and to me it wasn't really relevant to the issues that were in

question whether or not a delivery had taken place."

¶ 37 With regard to defendant's argument Welch should have objected to the testimony

of crime lab personnel that the substance delivered by defendant was cocaine, Welch testified he

found the testing done at the state crime lab was adequate.

¶ 38 Finally, Welch told the trial court he had reviewed defendant's pro se motions

filed on October 25 and November 23 prior to the hearing. The court asked Welch whether he

had anything further to tell the court before it determined whether a full evidentiary hearing

should be required. In response, Welch stated he had clearly informed Jolly about his options in

this case and discussed these options with Jolly.

¶ 39 The trial court, in determining whether a full evidentiary hearing and appointment

of new counsel were required, made the following statements. According to the court, what it

"looks at is whether or not under the factual bases of the claims, whether or not those claims have

or lack merit, whether or not they pertain to trial strategy, whether or not they relate to ineffective

assistance of counsel, that being neglect, in particular, or failure to *** rise to the level *** of

representation required under Strickland v. Washington." The court took judicial notice of the

court file, and then said:

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 "[T]he court can *** base it's [sic] evaluation of the defendant's

pro se allegations on its own knowledge of defense counsel's

performance at trial, and since I was the trial attorney [sic] and

being familiar with Mr. Welch not only with respect to that

particular case, but other cases in which he during that period of

time that both of us were in the criminal felony division, would

have had numerous encounters with one another, feel that I have a

sufficient basis and knowledge to go ahead and draw upon that

understanding, that perception, and that knowledge with respect to

the competence of counsel."

The court then stated the defendant's allegations of ineffective assistance of counsel lacked merit

and/or pertained to trial strategy. The court believed Welch never told Jolly he was not prepared

to go to trial. In addition, the court believed Welch disclosed to defendant Welch's trial strategy

in this matter. The court noted:

"With respect to all of the other issues that were addressed,

that being the forensic experts, either calling them or not calling

them, the method and means of cross-examination, the confidential

source, the motions that could or may have been filed, whether it

be motions to dismiss, for new trial, to suppress, the decision by

counsel to object or not object to the introduction of certain

exhibits to the jury, the decision to object or not object to any off-

the-cuff statement that the state's attorney charged with prosecuting

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 the case would have made, all relate to trial strategy decisions, not

ineffective assistance of counsel."

The court then denied defendant's request for new counsel.

¶ 40 This appeal followed.

¶ 41 II. ANALYSIS

¶ 42 In the first appeal, we remanded this case to the trial court for the limited purpose

of conducting an inquiry pursuant to People v. Moore, 207 Ill. 2d 68, 81, 797 N.E.2d 631, 639-40

(2003), into the underlying factual basis of defendant's pro se claims of ineffective assistance of

counsel to determine if a full evidentiary hearing was required. Jolly, 2012 IL App (4th) 110033-

U, ¶ 14. The court, on remand, conducted a hearing and determined a full evidentiary hearing

was not required.

¶ 43 At issue is whether the trial court erred in the manner it conducted the hearing on

remand. According to defendant's brief:

"[I]nstead of making a proper limited inquiry by discussing the

claims with Jolly and [trial attorney] Welch, the court held a quasi-

evidentiary hearing at which the State presented Welch's sworn

testimony and then argued that Jolly should not be appointed

counsel. At this hearing, the court used its personal knowledge of

Welch's conduct in this case. The court denied Jolly's arguments

on the merits rather than assessing them as to whether any of the

arguments showed a colorable claim of possible neglect."

¶ 44 The proper scope of a preliminary investigatory hearing to determine whether to

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appoint defendant new counsel is a question of law we review de novo. Moore, 207 Ill. 2d at 75,

797 N.E.2d at 636. If the trial court erred in the manner it conducted the hearing, the error can be

harmless beyond a reasonable doubt. People v. Nitz, 143 Ill. 2d 82, 135, 572 N.E.2d 895, 919

(1991).

¶ 45 Our supreme court has stated Krankel did not establish a per se rule a defendant is

entitled to a new attorney every time he presents a pro se motion for a new trial alleging

ineffective assistance of counsel. People v. Nitz, 143 Ill. 2d at 134, 572 N.E.2d at 919. Instead,

the trial court " 'should examine the factual matters underlying the defendant's claim[.] *** [I]f

the claim lacks merit or pertains to matters of trial strategy, then no new counsel need be

appointed.' " Nitz, 143 Ill. 2d at 134, 572 N.E.2d at 919 (quoting People v. Washington, 184 Ill.

App. 3d 703, 711, 540 N.E.2d 1014, 1019 (1989)). "A claim lacks merit if it is ' "conclusory,

misleading, or legally immaterial" or do[es] "not bring to the trial court's attention a colorable

claim of ineffective assistance of counsel." ' " People v. Tolefree, 2011 IL App (1st) 100689,

¶ 22 (quoting People v. Burks, 343 Ill. App. 3d 765, 774, 799 N.E.2d 745, 753 (2003)).

However, if a defendant's factual allegations " 'show possible neglect of the case *** new

counsel [should] be appointed.' " Nitz, 143 Ill. 2d at 134, 572 N.E.2d at 919 (quoting Washington,

184 Ill. App. 3d at 711, 540 N.E.2d at 1019).

¶ 46 In this type of case, when considering the trial court's review of a defendant's pro

se allegations of ineffective assistance counsel, our supreme court has held:

"The 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. [Citation.]

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 During this evaluation, 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." (Emphasis added.) Moore, 207 Ill. 2d at

78-79, 797 N.E.2d at 638.

¶ 47 While a trial court should ordinarily conduct a preliminary investigation before

proceeding to a full evidentiary hearing on the merits (People v. Cabrales, 325 Ill. App. 3d 1, 5,

756 N.E.2d 461, 464-65 (2001)), the supreme court has left unresolved the question of the

permissible extent of the preliminary investigatory hearing. This court, relying on Moore,

previously has stated a trial court can conduct a Krankel inquiry in one or more of the following

ways: "(1) questioning the trial counsel, (2) questioning the defendant, and (3) relying on its own

knowledge of the trial counsel's performance in the trial." People v. Peacock, 359 Ill. App. 3d

326, 339, 833 N.E.2d 396, 407 (2005).

¶ 48 These investigatory hearings are meant to be neither adversarial nor evidentiary.

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It is not necessary to exclude counsel from the courtroom during the court's questioning of a

defendant about allegations of ineffectiveness. Indeed, if counsel is present, he or she can hear

for himself or herself what defendant is saying and then respond if called upon to do so by the

court. Nor is it necessary to swear counsel or defendant. The preliminary investigation is meant

to be informal; no one needs to be sworn to testify. Although the trial court repeatedly stated it

was only holding a preliminary Krankel inquiry rather than an evidentiary hearing, defendant

argues the court in essence conducted an evidentiary hearing. According to defendant:

"Here, the court transcended the above boundaries of a

limited preliminary inquiry by allowing the State to actively

participate in the proceedings. The State was allowed to call

Welch as a witness and to question him as to why he believed there

was no merit to any of Jolly's claims of ineffectiveness. [Citation.]

Although Welch was questioned by the State and the court, Jolly

was not allowed to cross-examine Welch.

In addition to presenting Welch's sworn testimony, the

State was allowed to argue that Jolly should not receive appointed

counsel. [Citation.] The State argued that no evidentiary hearing

was necessary because 'Mr. Jolly has failed to show that Mr. Welch

was ineffective in his representation of Mr. Jolly[.]' [Citation.]

Nothing in Peacock or Moore authorizes either the taking of actual

testimony or active participation by the State during a preliminary

inquiry."

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¶ 49 The State argues the preliminary inquiry did not become an adversarial hearing on

the merits simply because the State elicited some of Welch's responses to defendant's

ineffectiveness claims. According to the State's brief:

"In contrast to Cabrales, the trial court recognized the purpose of

the hearing—to determine the factual bases of defendant's

allegations in order to decide whether it needed to appoint other

counsel to present those claims in a full evidentiary hearing.

Unlike Cabrales, the court did not allow the State to cross-examine

defendant, or the defendant to cross-examine Welch, and it did not

conduct a hearing on the merits. The State's role was de minimis

and did not transform the hearing from the initial investigatory

phase into an adversarial hearing on the merits."

¶ 50 We first note defendant reads this court's decision in Peacock too narrowly. As

we noted earlier, our supreme court has stated a trial court " 'should examine the factual matters

underlying the defendant's claim' " to determine whether a defendant's claims lack merit or

pertain to matters of trial strategy. Nitz, 143 Ill. 2d at 134, 572 N.E.2d at 919 (quoting

Washington, 184 Ill. App. 3d at 711, 540 N.E.2d at 1019 (1989)). Our decision in Peacock

should not be read as restricting a trial court to only the three actions specifically enumerated in

that case. For example, the court is free to review the court file and transcripts for purposes of

the investigatory hearing. The court is also free to ask the State for specific and concrete factual

information relating to a defendant's allegations.

¶ 51 That being said, the trial court in the case sub judice erred by allowing the State to

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question defendant's trial counsel under oath during the preliminary investigatory hearing while

barring defendant from asking his trial counsel any questions. The moment the State was

allowed to question defense counsel, this hearing turned from investigatory to adversarial. The

same would have been true if the court allowed defendant to question his trial counsel.

¶ 52 When the trial court questions the parties, it does so, not as an advocate, but as an

impartial tribunal whose only mission is to get the facts and follow the law. As a result, the court

can make an impartial determination whether a defendant's claims of ineffectiveness are so

without merit or relate to matters of strategy such that appointment of new counsel is

unwarranted.

¶ 53 The trial court also erred in relying on its knowledge of defense counsel's

performance in cases other than this matter. Even the best attorney can render legally ineffective

assistance by making significant mistakes. After all, contrary to some beliefs, attorneys are only

human, and humans make mistakes. As a result, with regard to an attorney's performance, the

trial court must only take into consideration the attorney's performance in the particular case at

issue. See Peacock, 359 Ill. App. 3d at 339, 833 N.E.2d at 407.

¶ 54 Here the State, represented by counsel, conducted a sworn examination of Welch.

Defendant, unrepresented at this time, was not allowed to ask any questions of Welch. Although

the trial court erred in the manner it conducted the hearing, we can still affirm the trial court if its

error was harmless beyond a reasonable doubt. Nitz, 143 Ill. 2d at 135, 572 N.E.2d at 919. In

this case, the trial court's errors were harmless beyond a reasonable doubt. We first note the trial

court thoroughly examined the factual matters in this case, questioning both defendant and

attorney Welch in a fair and impartial manner. The court could have easily denied defendant's

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request for new counsel based on its own investigation of the facts in open court.

¶ 55 Defendant only argues two of his allegations of ineffective assistance of counsel

show a colorable claim of possible neglect. However, neither states a colorable claim of possible

neglect.

¶ 56 Defendant first argues Welch was ineffective because he did not impeach Gunn,

the State's confidential source, by questioning him about his drug use. According to defendant,

"Welch did not ask Gunn, the State's primary witness in this case, whether he was high at trial or

during the alleged delivery, or when Gunn had last used illegal drugs." How an attorney chooses

to cross-examine a witness is a matter of trial strategy. Further, based on the facts of this case,

this claim is meritless. Gunn made a controlled drug buy from defendant while under police

surveillance. Gunn was searched prior to making the controlled buy and had no drugs. After the

controlled buy, Gunn possessed drugs he received from defendant. Further, police recovered the

currency used to make the controlled buy after defendant threw it from his car while being

pursued by police officers. Gunn's personal flaws would have had no impact on the State's case

against defendant. Moreover, the State introduced evidence of Gunn's criminal and drug history,

including the facts he had convictions for delivery of a controlled substance and had served time

in prison. Gunn even testified he sold drugs, stole things, and did whatever else was necessary to

acquire drugs.

¶ 57 Defendant next argues Welch did not disclose or discuss his trial strategy with

him, and Welch's answers regarding this allegation were not responsive to defendant's claim.

According to defendant, Welch only testified the State made an unattractive plea offer of 14

years in prison and, after discussing with defendant the discovery he received from the State,

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Welch only discussed whether defendant should accept the State's plea offer, enter an open guilty

plea, or go to trial and likely be convicted. Defendant argues in his brief:

"Welch's testimony identified no trial strategy that he shared with

Jolly. Rather, Welch testified about the overall decision about

whether to go to trial or plead guilty, and not about a trial strategy

for maximizing the chance of acquittal."

However, defendant does not argue at any time he asked Welch to discuss the strategy Welch

planned to use at trial. This also ignores the fact, as Welch testified, this was a "cut and dry" case

for the State.

¶ 58 Further, in his brief to this court, defendant does not identify any strategy Welch

could have used at trial other than impeaching Gunn with his drug use. However, as stated

earlier, defendant's claim Welch was ineffective based on his cross-examination of Gunn is

meritless based on the facts of this case.

¶ 59 For the reasons stated above, the trial court procedural error was harmless beyond

a reasonable doubt.

¶ 60 III. CONCLUSION

¶ 61 For the reasons stated, we affirm the trial court's denial of defendant's request for

new counsel. As part of our judgment, we award the State its $50 statutory assessment against

defendant as costs of this appeal.

¶ 62 Affirmed.

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