People v. Jolly

2014 IL 117142

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

(Docket No. 117142)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JOHN WILLIE JOLLY,
Appellant.

Opinion filed December 4, 2014—Modified upon denial of rehearing

January 28, 2015.

JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and Theis
concurred in the judgment and opinion.

OPINION

¶1 This case arises in the context of a preliminary inquiry into a defendant’s pro se
posttrial allegations of ineffective assistance of trial counsel pursuant to this court’s
decision in People v. Krankel, 102 Ill. 2d 181 (1984). More specifically, this appeal
requires us to resolve a conflict in the appellate court on the appropriate treatment of a
circuit court’s decision to allow the State’s adversarial participation in a preliminary
Krankel inquiry. The State concedes that the circuit court’s decision to allow its
adversarial participation is erroneous.

¶2 Here, defendant, John Willie Jolly, filed a pro se posttrial motion alleging
ineffective assistance of trial counsel. Ultimately, the circuit court of McLean County
conducted a preliminary Krankel inquiry on defendant’s claims. In relevant part, the
 circuit court erroneously permitted the State to participate in an adversarial manner and
relied on matters outside the record during that inquiry.

¶3 On direct appeal, the appellate court affirmed the trial court’s denial of defendant’s
posttrial motion, concluding that the trial court’s errors were harmless beyond a
reasonable doubt. 2013 IL App (4th) 120981. For the reasons that follow, we reverse
and remand.

¶4 BACKGROUND

¶5 In 2010, defendant was charged with unlawful delivery of a controlled substance.
At his jury trial in the circuit court of McLean County, the State’s evidence consisted
largely of the testimony of Robbie Gunn, a 45-year-old confidential informant. Gunn, a
self-admitted drug addict, had three felony convictions for delivery of a controlled
substance. In June 2009, a Bloomington police detective arrested Gunn for selling
illegal drugs. In exchange for the State’s agreement to dismiss that charge and an
unrelated misdemeanor drug charge, Gunn agreed to act as a confidential informant for
controlled buys.

¶6 On March 18, 2010, Gunn arranged to buy cocaine from defendant, whom Gunn
knew as “Bud.” Gunn explained that he had dealt with defendant on multiple prior
occasions, and he recognized defendant’s voice and appearance. At the direction of a
police detective, Gunn called defendant to purchase cocaine. Gunn agreed to purchase
$50 worth of cocaine from defendant at their “normal spot” on Mulberry Street.
Defendant arrived at the agreed upon location in a burgundy car, and Gunn purchased
the cocaine through the passenger window of defendant’s car. On cross-examination,
Gunn explained that he did not wear a surveillance wire during the transaction, and he
used his own cell phone to call defendant. Gunn admitted that working as a confidential
informant was his only source of income during that time period.

¶7 The State also presented the testimony of the police officers involved in the
operation. One officer observed defendant leave his residence at 1:41 p.m. in a car
matching Gunn’s description. Shortly thereafter, at 1:47 p.m., a second officer saw
defendant arrive in the vehicle, and then saw Gunn briefly lean into the passenger
window. After the sale was complete, police officers attempted to stop defendant’s
vehicle, but defendant drove away. The officers pursued defendant in unmarked squad

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 cars with their lights and sirens activated. As defendant fled in his vehicle, the pursuing
officers saw defendant throw out paper.

¶8 Police officers ended the vehicle pursuit for reasons of public safety, but they
successfully apprehended defendant about 10 or 15 minutes later when another officer
observed defendant exit his parked car. Defendant possessed a cell phone with a
number matching the one called by Gunn. Officers also recovered the paper thrown
from defendant’s vehicle, and discovered that it was torn United States paper currency.
Although the damaged currency could not be conclusively matched, the recovered
pieces with partial serial numbers matched with numbers on the prerecorded currency
that law enforcement provided to Gunn for the controlled buy. The parties stipulated
that the substance that Gunn purchased from defendant weighed .1 gram and contained
cocaine.

¶9 Defendant did not present any evidence. Following closing arguments, the jury
found defendant guilty of delivery of a controlled substance. The circuit court
sentenced defendant to 16 years’ imprisonment as a Class X offender, based on his
prior felony convictions.

¶ 10 On October 25, 2010, defendant filed a pro se motion, titled “Motion to Reduce
Sentence.” In addition to challenging his sentence, defendant challenged the
effectiveness of his trial counsel. Specifically, defendant argued that his trial counsel
was ineffective because counsel failed to: (1) move to reduce defendant’s bond; (2)
obtain defendant’s consent before waiving his right to a speedy trial; (3) appear in court
to represent defendant during one or more pretrial hearings; (4) provide defendant
access to discovery materials; (5) discuss trial strategy with defendant or visit him; and
(6) prepare to represent defendant at trial because counsel was preparing for another
criminal case.

¶ 11 On November 19, 2010, the McLean County public defender’s office filed a letter
notifying the court that defendant’s trial counsel was no longer a public defender
contract attorney and that a new assistant public defender had been assigned.

¶ 12 On November 23, 2010, defendant filed a second pro se motion, titled “Motion to
Amend the Motion to Reduce Sentence.” In relevant part, defendant added new claims
of ineffective assistance of trial counsel. Specifically, defendant argued that his trial
counsel was ineffective for failing to: (1) object to the State’s testimony on the
recovered currency; (2) challenge Gunn’s credibility; (3) challenge the sufficiency of
the evidence; (4) object to the police officer’s testimony that defendant’s voice was
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 recorded; (5) object to the lack of testimony from experts on the State’s exhibits,
including the admission of cocaine; (6) file a motion to dismiss the charges for lack of
evidence; and (7) file a motion to suppress the recovered cocaine and pieces of
currency.

¶ 13 Following a hearing with defendant represented by new counsel from the public
defender’s office, the circuit court denied defendant’s pro se motion to reduce
sentence, finding that the sentence was not excessive. The court also rejected
defendant’s claims of ineffective assistance of trial counsel, finding those claims
untimely. Alternatively, the court found that defendant’s claims of ineffective
assistance could be considered as plain error by the appellate court or pursued in a
postconviction petition.

¶ 14 In the first direct appeal in this case, the appellate court reversed, holding that the
trial court erred by failing to conduct any inquiry into defendant’s claims of ineffective
assistance of trial counsel. The court remanded the matter to the circuit court for a new
hearing and preliminary inquiry under Krankel. People v. Jolly, 2012 IL App (4th)
110033-U.

¶ 15 On remand, the circuit court conducted a preliminary Krankel inquiry, the subject
of the instant appeal. At the beginning of the hearing, the court allowed defendant’s
new attorney from the public defender’s office to be excused from the proceeding.
Thus, defendant proceeded pro se at the hearing.

¶ 16 Upon seeing defendant’s original trial counsel, Mr. Welch, in the courtroom, the
circuit court asked defendant whether he preferred that Welch leave the courtroom
until he was needed to testify. Defendant replied that he did not want Welch present
until he was needed.

¶ 17 The circuit court then explained to defendant that the preliminary inquiry under
Krankel was intended to address defendant’s claims of ineffective assistance that he
raised in his two posttrial motions. The court opined that “there is no specific method
that the reviewing courts, whether it [is] the Illinois Appellate or the Illinois Supreme
Court, have defined as far as the manner in which this type of proceeding would be
conducted.” Nonetheless, the court explained that it would seek to keep the proceeding
as “informal as possible recognizing that the ultimate determination is to make a good
record” of the court’s final ruling on those claims.

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¶ 18 Next, the circuit court extensively reviewed each of defendant’s claims and allowed
defendant to explain each claim. During that exchange, however, the trial court
repeatedly stopped defendant from making any argument on his claims. At one point,
the court explained that its goal in the hearing was to “ascertain what the assertions of
ineffective assistance are,” but that “we are not here to go ahead and argue, that being
the specific merits of [defendant’s claims].”

¶ 19 When the circuit court finished questioning defendant about his claims, the court
asked the State if it wanted to submit any evidence. More specifically, the court offered
the State the opportunity to “rebut” defendant’s claims but repeated its earlier
observation that the proceeding was “not a full evidentiary hearing.” The State replied
affirmatively and indicated that they wanted to call Welch as a witness. The court
agreed to let the State call Welch as a witness but prohibited defendant from
cross-examining Welch because of the preliminary nature of the proceeding. The court
again emphasized that the proceeding was not intended to be an evidentiary hearing,
regardless of whether the court or the State questioned Welch.

¶ 20 After Welch was called and sworn in as a witness, the State questioned him at
length on defendant’s claims that he was ineffective. In answering the State’s
questions, Welch generally rebutted or otherwise denied defendant’s claims that he
provided ineffective trial assistance. The State also solicited testimony from Welch
explaining that he did not file a motion to reduce defendant’s bond or a motion to
suppress the recovered evidence because he did not believe those motions would have
been successful. In response to the State’s questioning, Welch also informed the court
that he had substantial experience trying criminal cases, estimating that he had
“handled” over 1,000 criminal cases in his 31-year career as an attorney. After the State
finished questioning Welch, the circuit court also asked Welch questions about
defendant’s claims.

¶ 21 The circuit court then permitted the parties to present argument on whether a full
evidentiary hearing under Krankel was necessary. Both parties presented brief
arguments. Defendant, appearing pro se, contended that he was entitled to a full
evidentiary hearing because he was denied a “proper trial” as a result of his counsel’s
ineffective assistance. The State countered that defendant failed to show that his
counsel was ineffective and, therefore, was not entitled to a full evidentiary hearing on
his claims.

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¶ 22 At the close of the hearing, the circuit court reemphasized the preliminary nature of
the proceeding and explained that it was not intended to be a full evidentiary hearing.
When describing how it reviewed defendant’s claims, the court stated that it considered
the factual basis of the claims, the merit of the claims, whether the claims pertained to
trial strategy, and whether they constituted ineffectiveness under the governing
Strickland test. In addition, the court indicated that it would consider the statements of
defendant and Welch, the court file, and its own observation of Welch’s performance
during defendant’s trial. Last, and relevant to this appeal, the trial court also indicated
that it would consider evidence not in the record. Specifically, the trial judge stated he
would rely on his personal knowledge of Mr. Welch’s work as an attorney in prior
unrelated criminal cases. The judge explained that he was familiar with Mr. Welch’s
work “during that period of time that both of us were in the criminal felony division”
and “would have had numerous encounters with one another.” The court then ruled that
it would not appoint new counsel or proceed to a full evidentiary hearing because each
of defendant’s allegations lacked merit or pertained to trial strategy.

¶ 23 On direct appeal, the appellate court affirmed. Although finding that the circuit
court erred when it allowed the State to question Welch and considered Welch’s
conduct in other cases, the court concluded that those errors were harmless beyond a
reasonable doubt. 2013 IL App (4th) 120981.

¶ 24 This court allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff.
July 1, 2013).

¶ 25 II. ANALYSIS

¶ 26 On appeal, defendant argues that the circuit court’s judgment must be reversed
because the court failed to hold a proper preliminary Krankel hearing limited to
investigating the factual basis for his claims and, instead, erroneously transformed the
proceeding where he appeared pro se into an adversarial evidentiary hearing.
Defendant also faults the circuit court for relying on matters outside the record, namely,
the trial judge’s experience with defendant’s trial counsel in other criminal cases.
Citing the appellate court’s decision in People v. Fields, 2013 IL App (2d) 120945,
defendant argues that it is not harmless error when the trial court permits the State’s
adversarial involvement in a preliminary Krankel hearing.

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¶ 27 In response, the State concedes that the circuit court erred in permitting the State’s
adversarial participation in the preliminary inquiry and erred when it relied on matters
outside the record. Nonetheless, the State argues that those procedural errors were
harmless because the circuit court created a record sufficient for appellate review, the
primary goal of a preliminary Krankel inquiry. Thus, the State contends that the
appellate court here correctly determined that the errors made by the circuit court were
harmless beyond a reasonable doubt because the record demonstrates that defendant’s
underlying claims of ineffective assistance of counsel lacked merit. The State cautions
this court that accepting defendant’s argument “would require this Court to classify
procedural Krankel errors as ‘reversible’ or ‘structural’ errors.” The State argues that
reversible structural error is reserved to a narrow class of cases not including
Krankel-related errors.

¶ 28 The issue of whether the circuit court properly conducted a preliminary Krankel
inquiry presents a legal question that we review de novo. See People v. Moore, 207 Ill.
2d 68, 75 (2003). Similarly, we review de novo the legal question of whether harmless
error applies to errors committed during a Krankel proceeding. See Moore, 207 Ill. 2d
at 80-81; People v. Nitz, 143 Ill. 2d 82, 135 (1991).

¶ 29 The common law procedure developed from our decision in Krankel is triggered
when a defendant raises a pro se posttrial claim of ineffective assistance of trial
counsel. People v. Krankel, 102 Ill. 2d 181 (1984); People v. Patrick, 2011 IL 111666,
¶ 29. Under the rule developed from Krankel and its progeny, it is settled that new
counsel is not automatically appointed when that type of claim is raised. Moore, 207 Ill.
2d at 77. Instead:

“when a defendant presents a pro se posttrial claim of ineffective assistance of
counsel, the trial court should first examine the factual basis of the defendant’s
claim. 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.” Moore, 207 Ill. 2d at 77-78.

As this court has repeatedly recognized, the goal of any Krankel proceeding is to
facilitate the trial court’s full consideration of a defendant’s pro se claims of ineffective
assistance of trial counsel and thereby potentially limit issues on appeal. Patrick, 2011
IL 111666, ¶ 41; People v. Jocko, 239 Ill. 2d 87, 91 (2010).

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¶ 30 The general subject of this appeal is the circuit court’s preliminary Krankel inquiry.
As we explained in Moore, “[d]uring 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.” Moore, 207 Ill. 2d at
78. Thus, the trial court may inquire with trial counsel about the facts and
circumstances surrounding the defendant’s allegations. Moore, 207 Ill. 2d at 78. The
court may also briefly discuss the allegations with defendant. Moore, 207 Ill. 2d at 78.
Finally, the trial court is permitted to base its evaluation of the defendant’s pro se
allegations of ineffective assistance of counsel on its knowledge of defense counsel’s
performance at trial. Moore, 207 Ill. 2d at 79.

¶ 31 The specific question presented here is the proper resolution of errors made by the
circuit court when conducting the preliminary Krankel hearing. The parties agree that
the circuit court erred in permitting the State’s adversarial participation in the
preliminary inquiry when defendant appeared pro se, and the court further erred in
relying on matters outside the record, i.e., its knowledge of Welch’s performance in
other criminal cases. The parties disagree, however, on how those errors should be
addressed and whether they are harmless beyond a reasonable doubt.

¶ 32 We first address the circuit court’s error in permitting the State’s adversarial
participation at the preliminary Krankel inquiry. We note that the parties’ respective
positions on this issue mirror a conflict in the appellate court. We now address that
conflict.

¶ 33 Defendant directs our attention to the Appellate Court, Second District’s decision
in People v. Fields, 2013 IL App (2d) 120945. In Fields, the circuit court at the
preliminary Krankel hearing permitted the State to argue against, or otherwise rebut,
each of the defendant’s claims of ineffective assistance of counsel. The State also made
argument in support of defense counsel’s explanations of his actions at the defendant’s
trial. Fields, 2013 IL App (2d) 120945, ¶¶ 22, 41.

¶ 34 The appellate court in Fields observed that case law did not suggest that the State
should be an active participant in a preliminary Krankel inquiry. To the contrary, the
Fields court observed that in most instances “virtually no opportunity for State
participation is offered during the preliminary inquiry.” Fields, 2013 IL App (2d)
120945, ¶ 40. Accordingly, the court concluded that the State should be limited to a
de minimis role in the preliminary Krankel inquiry to limit the risk that the inquiry

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 would be transformed into an adversarial proceeding with both the State and trial
counsel opposing defendant. Fields, 2013 IL App (2d) 120945, ¶ 40. After reviewing
the record, the appellate court in Fields concluded:

“Where the trial court, at various times, allowed both defense counsel and the
State to assert that defendant’s claims warranted no further investigation, the
hearing changed from one consistent with Krankel and its progeny to an
adversarial hearing where defendant, without waiving his right to be
represented, was forced, unrepresented, to argue the merits of his claims.”
Fields, 2013 IL App (2d) 120945, ¶ 41.

¶ 35 Ultimately, the Fields court rejected the State’s argument that its improper
adversarial participation in the preliminary Krankel inquiry was harmless when the
trial court’s reasoning for denying the defendant’s ineffective assistance claims was
correct. Fields, 2013 IL App (2d) 120945, ¶ 42. Rather, the Fields court decided to
adopt the remedy used in other decisions when the preliminary Krankel hearing
“morphed into an adversarial hearing with the State participating and the defendant
appearing pro se,” specifically, reversing and remanding to the circuit court for a new
preliminary inquiry before a different judge without the State’s adversarial
participation. Fields, 2013 IL App (2d) 120945, ¶ 42 (citing People v. Cabrales, 325
Ill. App. 3d 1, 6 (2001)).

¶ 36 In contrast, the State relies on the Appellate Court, Fourth District’s opinion in this
case, reaching the opposite conclusion on analogous facts. 2013 IL App (4th) 120981. 1
As noted above, the circuit court here improperly allowed the State to participate in an
adversarial role in the preliminary Krankel hearing while defendant appeared pro se.
The circuit court also erred when it relied on matters outside the record when
evaluating defendant’s claims. 2013 IL App (4th) 120981, ¶¶ 51-54.

¶ 37 Although finding that the circuit court erred in allowing the State’s adversarial role
and relying on matters outside the record during the preliminary Krankel inquiry, the
appellate court here nevertheless found that the errors were harmless beyond a
reasonable doubt. The court explained that the errors were harmless because the circuit
court thoroughly examined the factual matters and questioned both defendant and his
trial counsel in a fair and impartial manner. The court reasoned that the circuit court
could have “easily denied defendant’s request for new counsel based on its own

1
On rehearing, the appellate court in this case acknowledged the contrary holding of Fields but
“decline[d] to go so far based on the facts of this case.” 2013 IL App (4th) 120981, ¶ 63.
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 investigation of the facts in open court.” 2013 IL App (4th) 120981, ¶ 56. The appellate
court also reviewed, and rejected, the merits of two specific claims of ineffective
assistance of counsel raised by defendant on direct appeal. 2013 IL App (4th) 120981,
¶¶ 57-60.

¶ 38 Having carefully reviewed both decisions, we find that Fields better comports with
our Krankel jurisprudence when a circuit court erroneously permits the State’s
adversarial participation at the preliminary inquiry. The common law procedure
available under Krankel is intended to address fully a defendant’s pro se posttrial
claims of ineffective assistance of counsel and thus potentially limit issues on appeal.
Patrick, 2011 IL 111666, ¶ 41; Jocko, 239 Ill. 2d at 91. By initially evaluating the
defendant’s claims in a preliminary Krankel inquiry, the circuit court will create the
necessary record for any claims raised on appeal. See Nitz, 143 Ill. 2d at 134-35
(reviewing the record of the preliminary inquiry to assess defendant’s claims on
appeal); Moore, 207 Ill. 2d at 81 (explaining that failure to conduct a preliminary
Krankel inquiry precludes appellate review). For these reasons, we believe that a
preliminary Krankel inquiry should operate as a neutral and nonadversarial proceeding.
Because a defendant is not appointed new counsel at the preliminary Krankel inquiry, it
is critical that the State’s participation at that proceeding, if any, be de minimis.
Certainly, the State should never be permitted to take an adversarial role against a pro
se defendant at the preliminary Krankel inquiry.

¶ 39 As Fields similarly determined, the purpose of Krankel is best served by having a
neutral trier of fact initially evaluate the claims at the preliminary Krankel inquiry
without the State’s adversarial participation, creating an objective record for review.
This goal, however, is circumvented when the circuit court essentially allows the State
to bias the record against a pro se defendant during the preliminary Krankel inquiry. A
record produced at a preliminary Krankel inquiry with one-sided adversarial testing
cannot reveal, in an objective and neutral fashion, whether the circuit court properly
decided that a defendant is not entitled to new counsel. See Patrick, 2011 IL 111666,
¶ 39 (noting that “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”). This, however, is precisely what occurred in this case.

¶ 40 Here, the circuit court permitted the State to question defendant and his trial
counsel extensively in a manner contrary to defendant’s pro se allegations of
ineffective assistance of counsel and to solicit testimony from his trial counsel that
rebutted defendant’s allegations. In other words, the circuit court allowed the State to
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 confront and challenge defendant’s claims directly at a proceeding when defendant was
not represented by counsel. The State also presented evidence and argument contrary to
defendant’s claims and emphasized the experience of defendant’s trial counsel. Thus,
as in Fields, the State and defendant’s trial counsel effectively argued against
defendant at a proceeding when he appeared pro se. As we explained above, this is
contrary to the intent of a preliminary Krankel inquiry. Cognizant of the rationale of
Krankel and its progeny, we cannot conclude that the circuit court’s error in this case
was harmless beyond a reasonable doubt.

¶ 41 Although the parties agree that the circuit court committed further error in this case
by relying on matters outside the record, we have concluded that the circuit court
committed reversible error when it permitted the State to participate in an adversarial
fashion during the preliminary Krankel inquiry. Consequently, we limit our holding in
this case to that error.

¶ 42 The State’s reliance on our decision in People v. Nitz, 143 Ill. 2d 82 (1991), in
support of its harmless-error argument is misplaced. In Nitz, we held that the circuit
court’s failure to appoint new counsel for an evidentiary hearing under Krankel was
harmless beyond a reasonable doubt. Nitz, 143 Ill. 2d at 135.

¶ 43 In stark contrast to this case, however, the circuit court in Nitz held a proper
preliminary inquiry under Krankel and then concluded that an evidentiary hearing was
warranted. The circuit court in Nitz erred, though, when it failed to appoint new counsel
at the evidentiary hearing. After observing that the defendant’s underlying ineffective
assistance claims were rebutted by his proposed witnesses’ testimony at that hearing,
we concluded that the circuit court’s error was harmless beyond a reasonable doubt.
Nitz, 143 Ill. 2d at 134-35.

¶ 44 Unlike this case, in Nitz there was no concern with the adequacy of the record from
the preliminary Krankel proceeding or with the manner that the proceeding was
conducted. Instead, the contested error in Nitz occurred during the second stage of the
Krankel proceeding, when defendant was represented by counsel, and after the circuit
court held a proper preliminary inquiry. Accordingly, we find that our decision in Nitz
does not control the outcome of this case.

¶ 45 The State is concerned that our endorsement of Fields will constitute a new type of
reversible structural error. The State’s concern is unfounded. Notably, defendant has
not argued in this case that the circuit court’s error constituted structural error.

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 Moreover, Fields did not find that the State’s improper adversarial participation in a
preliminary Krankel hearing was structural error.

¶ 46 Finally, we address the remedy in this case. As we have explained, the purpose of
Krankel is best served by having a neutral trier of fact initially evaluate the claims at the
preliminary Krankel inquiry without the State’s adversarial participation, creating an
objective record for review. Here, the State’s improper adversarial participation at that
inquiry effectively thwarted that purpose. We thus believe the appropriate remedy is to
remand for a new preliminary Krankel inquiry before a different judge and without the
State’s adversarial participation. Fields, 2013 IL App (2d) 120945, ¶ 42.

¶ 47 CONCLUSION

¶ 48 The circuit court erred when it allowed the State’s adversarial participation in the
preliminary Krankel inquiry. For the reasons explained above, we reverse the appellate
court’s judgment finding that error harmless beyond a reasonable doubt. We remand
the cause to the circuit court with instructions.

¶ 49 Reversed and remanded with instructions.

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