2015 IL App (1st) 131023
SECOND DIVISION
June 30, 2015
No. 1-13-1023
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 12 CR 2902
)
KENNETH WASHINGTON, ) Honorable
) Kevin M. Sheehan,
Defendant-Appellant. ) Judge Presiding.
JUSTICE PIERCE delivered the judgment of the court, with opinion.
Justices Neville and Liu concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant Kenneth Washington was found guilty of possession
of a controlled substance, then sentenced to 2 1/2 years' imprisonment. On appeal, defendant
contends that his cause should be remanded for consideration of his oral pro se posttrial claim of
ineffective assistance of trial counsel under People v. Krankel, 102 Ill. 2d 181, 187-89 (1984).
¶2 The record shows that defendant was charged with possession of a controlled substance
with intent to deliver on February 3, 2012. At a status hearing held prior to trial on July 2, 2012,
defendant expressed his desire to obtain new counsel to replace the assistant public defender who
had been appointed to represent him. The trial court gave defendant 10 days to find a new
attorney and determined that the public defender would remain on the case unless and until a
private attorney came in. The record indicates that on August 16, 2012, the next recorded status
date, the same public defender was representing defendant, and defendant made no mention of
his previously stated desire to obtain new counsel then or throughout the ensuing trial.
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¶3 Chicago police officer Turner Goodwin testified at trial that he and his partner, Officer
Clifton Turner, were on patrol in the area of 111th Street and King Drive in the morning hours of
January 12, 2012, when they observed the driver of a red Saturn turn without signaling. The
officers conducted a traffic stop, and defendant stepped out of the car and started walking toward
the officers, who had also exited their vehicle. When Officer Goodwin asked defendant for his
driver's license and proof of insurance, defendant responded that he did not have a license and
that his insurance was in the glove box in his car. Officer Goodwin then handcuffed defendant
and started to advise him his Miranda rights, but could not remember all of them, so he handed
defendant over to Officer Turner and retrieved his "FOP" calendar book containing a printed
version of the Miranda warnings so he could complete the admonitions.
¶4 Officer Goodwin asked defendant why he got out of his car and approached the officers,
and defendant responded that he was "dirty" and had "about 12 bags of work in [his] center
console," which Officer Goodwin understood to mean some type of narcotics. Officer Goodwin
then approached defendant's car and observed a box of Mike and Ike candy on the center console
with plastic objects sticking out of it. As he entered the car to get the insurance information out
of the glove box, Officer Goodwin saw a "white rock-like substance" inside the plastic in the
candy box, which, upon further examination, was shown to be 12 plastic bags containing
suspected crack cocaine. Officer Goodwin recovered and inventoried the bags under inventory
No. 12512306.
¶5 The parties then stipulated that, if called, Cathy Regan would testify that she was a
forensic chemist at the Illinois State Police crime lab and received inventory No. 12512306,
which contained 15 plastic bags of a rock-like substance. She would further testify that 8 of the
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15 bags tested positive for cocaine and had an actual weight of 1.2 grams, and that the total
estimated weight of all the items was 2.3 grams.
¶6 Officer Turner was then called by the defense. He testified that he was on patrol with
Officer Goodwin in the morning hours of January 12, 2012, when they stopped defendant, who
was driving a red Saturn in the area of 435 East 111th Street. He stayed by the side of the patrol
car while defendant and Officer Goodwin had a brief conversation, but he could not hear what
they were saying. After the conversation, Officer Turner watched as Officer Goodwin
handcuffed defendant, then walked to the red Saturn and recovered the narcotics.
¶7 The trial court concluded that both of the officers had testified credibly, and it believed
that defendant had made the statement that he was "dirty" and had "12 bags of work."
Accordingly, the court found defendant guilty of possession of a controlled substance.
¶8 Defendant, through counsel, subsequently filed a motion for a new trial and an amended
motion contending that the testimony of the two officers was contradictory. The court denied the
motions and proceeded to sentencing, where arguments were presented in aggravation and
mitigation.
¶9 The court then advised defendant of his right to allocution, and specifically asked him if
he wished to speak to the court. This colloquy followed:
"DEFENDANT: Yes, sir. Your Honor, I would like to file a verbal motion for
ineffective assistance of counsel, verbal motion, because I don't have assets [sic] to
library.
THE COURT: All motions are required to be in writing, sir.
DEFENDANT: I didn't know that Your Honor. They took away the law library.
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THE COURT: This lawyer here did a fine job for you during trial. If you want to
file a motion, I will take a date and put it in writing if you want to do that. It's not up to
me. I am giving you [the] right for elocution [sic] prior to sentence. [Defense counsel]
has been anything but ineffective. However, I can't preclude you from filing the motion.
You can do that.
DEFENSE COUNSEL: You can have that stamped by the Court.
DEFENDANT: You can sentence me, Your Honor.
THE COURT: Are you withdrawing that motion?
DEFENDANT: I have to then. I don't have no way --
THE COURT: You don't have to withdraw anything. You can file anything you
want, but you have to file it properly like anybody else. Do you understand that?
DEFENDANT: Yes, I do, sir.
THE COURT: How do you want to proceed today?
DEFENDANT: You can go ahead, Your Honor, proceed. I will withdraw.
THE COURT: You withdraw that motion then?
DEFENDANT: Yes."
Defendant then voiced his challenge to the evidence presented by the State and the search area
over which he had no control. After weighing the relevant factors in aggravation and mitigation,
the court sentenced defendant to a term of 2 1/2 years' imprisonment.
¶ 10 In this appeal, defendant does not contest the sufficiency of the evidence to sustain his
conviction or the sentence imposed by the court. He solely contends that the trial court erred in
failing to conduct a preliminary inquiry into his claim of ineffective assistance of counsel, as
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required under Krankel, 102 Ill. 2d at 187-89. He thus requests that his cause be remanded for
the purpose of conducting such an inquiry.
¶ 11 Under Krankel, and its progeny, where defendant makes a pro se posttrial allegation of
ineffective assistance of counsel, the trial court should conduct an adequate inquiry into the
factual basis for the claim. People v. Moore, 207 Ill. 2d 68, 77-78 (2003). To invoke this rule,
defendant must make some allegation of ineffective assistance of counsel for the court to
consider and provide some factual specificity of the reason for the allegation. People v.
Cunningham, 376 Ill. App. 3d 298, 304 (2007). The pleading requirements for raising a pro se
claim of ineffectiveness of counsel are somewhat relaxed, but defendant must still satisfy
minimum requirements to trigger a Krankel inquiry by the trial court. People v. Bobo, 375 Ill.
App. 3d 966, 985 (2007). Mere awareness by a trial court that defendant has complained of
counsel's representation imposes no duty on the trial court to sua sponte investigate defendant's
complaint (Cunningham, 376 Ill. App. 3d at 304); however, when defendant presents a pro se
claim of ineffective assistance, the trial court should first examine the factual basis of defendant's
claim (Moore, 207 Ill. 2d at 77-78). We review defendant's claim de novo. People v. Taylor, 237
Ill. 2d 68, 75 (2010).
¶ 12 Defendant contends that he brought his claim of ineffective assistance of trial counsel to
the trial court's attention during the sentencing phase after he was advised of his right of
allocution. At that time, defendant stated that he wished to make a verbal motion claiming
ineffective assistance of counsel. The court, rather than inquiring into the basis of his claim,
instead told defendant that he would have to file a written motion and that he would be given
time to do so. The defendant advised the court that he did not have access to the library and the
court again told defendant, "[A]ll motions are required to be in writing," prompting the defendant
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to again state he "didn't know that Your Honor. They took away the law library." The court
again told defendant, "[I]f you want to file a motion, I will take a date and put it in writing if you
want to do that. *** I can't preclude you from filing the motion." When defendant relented, the
court asked if he was withdrawing the motion and defendant stated, "I have to then, I don't have
no way—." After further colloquy, defendant stated he would withdraw his motion and the court
proceeded to sentencing.
¶ 13 Initially, we note that the trial court erred in informing defendant that he was required to
submit his claim of ineffective assistance in writing. In People v. Patrick, 2011 IL 111666, ¶ 29,
our supreme court stated that a defendant's pro se ineffective assistance of counsel motion may
be oral so long as it brings his claim to the trial court's attention. Here, defendant's oral
statement during allocution was sufficient to bring to the trial court's attention that
defendant was attempting to raise an ineffective assistance claim. The colloquy that followed,
however, focused on the necessity of filing a written motion rather than on the basis for the
claim, thereby failing to accomplish the very purpose a Krankel inquiry.
¶ 14 The State contends that the trial court conducted an adequate Krankel hearing when it
stated that counsel's performance was "anything but ineffective." The State cites People v. Short,
2014 IL App (1st) 121262, ¶ 120, for the proposition that the trial court can base its evaluation of
defendant's allegations on its knowledge of defense counsel's performance at trial. The ruling in
Short, however, is not applicable because there the defendant specifically raised a challenge to
counsel's performance at trial (id. ¶ 60), which the court had observed, thus allowing it to make a
determination of counsel's performance. Here, although defendant brought to the attention of the
court the possibility of an ineffective assistance claim, defendant was not given the opportunity
to tell the court what it was he was complaining about because he was cut short by the court's
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repeated comments that he had to put the complaint in writing. Because of the failure to conduct
an inquiry into the basis of the alleged claim, there is no way of knowing whether defendant's
complaint dealt with alleged ineffectiveness that occurred pretrial, during trial, posttrial or during
sentencing. Patrick, 2011 IL 111666, ¶¶ 36-37. Thus, had the court simply asked the nature of
the alleged ineffectiveness, the trial court would have been in a position to determine whether
further inquiry or the appointment of counsel was required. People v. Moore, 207 Ill. 2d 68, 77-
78 (2003) (“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"). Clearly,
the exchange between the court and defendant was not the type of preliminary inquiry required
by Krankel into the underlying basis, if any, for defendant's posttrial claim. Id. at 79.
¶ 15 The State also argues that defendant waived this issue because he voluntarily withdrew
his motion after the court advised that it would continue the matter for defendant to file his
motion, and, as such, he is precluded from raising this issue on appeal. Under the doctrine of
invited error, the State further argues that defendant may not proceed in one manner at trial and
then contend on appeal that the course of action was erroneous. People v. Carter, 208 Ill. 2d 309,
319 (2003). We cannot say that defendant's withdrawal of his motion in this case comports with
the notion that it was made voluntarily or that he invited error. Even a casual reading of the
record shows the court erroneously informed defendant that he was required to file a written
motion. In response, defendant advised the court that he could not put the claim in writing and
only "withdrew" his motion when the court again emphasized that a written pleading was
required. We have no doubt the trial court effectively conveyed to defendant that his motion
must be written and there is equally no doubt defendant believed he could not do so. We cannot
find waiver where a defendant acquiesces to an erroneous filing requirement insisted upon by the
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court. Under these facts, we find that the trial court erred in failing to conduct a preliminary
inquiry into the factual basis for defendant's oral claim of ineffective assistance of counsel raised
during the sentencing phase (Cunningham, 376 Ill. App. 3d at 304), and we remand the cause for
the limited purpose of allowing the trial court to conduct the required preliminary investigation
(Moore, 207 Ill. 2d at 81).
¶ 16 Remanded, with directions.
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