Docket No. 108465.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
ROBERT JOCKO, Appellee.
Opinion filed November 18, 2010.
JUSTICE BURKE delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, Garman,
Karmeier, and Theis concurred in the judgment and opinion.
OPINION
At issue in this appeal is whether a circuit court is required to
conduct an inquiry, prior to trial, into allegations of ineffective
assistance of counsel that are raised by a defendant pro se. Relying on
People v. Krankel, 102 Ill. 2d 181 (1984), the appellate court
concluded that such an inquiry is required and because the circuit
court did not undertake one, the appellate court remanded the cause
to the circuit court for the limited purpose of conducting an inquiry
into the defendant’s claims of ineffective assistance of counsel. 389 Ill.
App. 3d 247. For the reasons that follow, we reverse the judgment of
the appellate court.
Background
The defendant, Robert Jocko, was charged in the circuit court of
Cook County with burglary for having removed power tools valued
at over $300 from a garage on July 6, 2005. At his arraignment on
August 25, 2005, defendant was represented by Assistant Public
Defender Rosenthal, who entered a plea of not guilty and filed a
written motion for discovery on defendant’s behalf. On November 17,
2005, Assistant Public Defender Mularski, who had been appointed to
represent defendant, filed a motion to quash defendant’s arrest and
suppress evidence. The motion was heard on February 16, 2006, and
denied.
On April 25, 2006, defendant filed a pro se “Motion to Dismiss
Based on Due Process Violation.” Included among defendant’s
allegations in this motion was the claim that “Counsel was not present
during ARRAINMENT [sic] or BAIL HEARING.” The motion
alleged that defendant never spoke with an attorney during
arraignment and that the arraignment judge “did not ask where my
counsel was.” Defendant’s motion was placed on the circuit court’s
call for May 2, 2006, and then rescheduled for May 25, 2006.
However, there was no discussion of the pro se motion on that date
or any subsequent date.
On September 6, 2006, Assistant Public Defender Fadell, the
attorney who ultimately represented defendant at trial, entered an
appearance on defendant’s behalf. In the record is a document titled
“Affidavit” that is signed by defendant. The “affidavit” is not file-
stamped but it bears a handwritten date of “9-6-06.” The “affidavit”
states that it is submitted in support of a motion to suppress evidence
and states that the police “held me in custody and brought me before
an alleged victim with out [sic] affording me the right to have a lawyer
present and depriving me of my other legal rights.” There is no
indication in the record that the circuit court addressed or was aware
of this “affidavit.”
Thereafter, defendant sent an undated letter to the office of the
clerk of the circuit court of Cook County, which was file-stamped on
December 14, 2006. On the back of the accompanying envelope is a
handwritten note that states “12-20-06 opened.” In the letter, the
defendant asks that it be placed in his “master file as a legal document
in case I have to argue on appeal.” The letter states that it is in regards
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to his counsel “not raissing [sic] certen [sic] issues in my case that is
[sic] material and relevant evidence that pertain [sic] to my case.” The
letter goes on to claim that defendant has “requested certain affidavits
and subpoenas to be entered and my lawyer has advised me that it
would notbe [sic] to my best interests, and I have also requested for
the 911 Motor Rola [sic] conversation to be entered as evidence in my
behave [sic] and his statement responce [sic] was that they do not
hold them after thirty days.” The defendant also wrote that Fadell was
not “fighting my case to the best of intrest [sic].” There is no
indication in the record that the circuit court addressed or was aware
of this letter.
The defendant was convicted in March 2007 and sentenced on
April 6, 2007.
On appeal, defendant alleged, among other things, that the circuit
court should have conducted an inquiry into the various claims of
deficient representation raised in his pro se documents. The appellate
court agreed and, in so holding, concluded that this court’s decision
in People v. Krankel, 102 Ill. 2d 181 (1984), “should be applied to
pretrial claims.” 389 Ill. App. 3d at 267. The appellate court explained
that
“as a matter of judicial economy, it makes more sense to
encourage defendants to bring their claims of ineffective
assistance of counsel to a trial court’s attention before trial,
rather than after. If there is a problem, it can be cured, before
all the parties and witnesses go through the time and expense
of a trial that may later be overturned on a posttrial motion or
on appeal.” 389 Ill. App. 3d at 266-67.
The cause was remanded for the limited purpose of an inquiry into
defendant’s claims of ineffective assistance of counsel. 389 Ill. App.
3d at 268.
We granted the State’s petition for leave to appeal. 210 Ill. 2d R.
315.
Analysis
In People v. Krankel, 102 Ill. 2d 181 (1984), the defendant filed
a pro se motion for a new trial in which he alleged that his trial
counsel was ineffective. The defendant was denied new counsel to
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assist him in the motion. On appeal, this court remanded the cause for
a new hearing on the defendant’s motion, with instructions to have
defendant represented by appointed counsel other than his trial
counsel. Krankel, 102 Ill. 2d at 189. Krankel thus adopted a
procedure that encourages the circuit court to fully address a
defendant’s claims of ineffective assistance and thereby potentially
narrow the issues that need to be addressed on appeal.
Cases subsequent to Krankel have made clear, however, that
newly appointed counsel
“is not automatically required in every case in which a
defendant presents a pro se posttrial motion alleging
ineffective assistance of counsel. Rather, 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.” People
v. Moore, 207 Ill. 2d 68, 77-78 (2003).
In the present case, the State contends that the appellate court
erred in holding that Krankel should be applied by a circuit court
before trial because until the proceedings have concluded, there is no
way to determine if counsel’s errors affected the outcome and,
therefore, no way of establishing prejudice under Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).
The State does not dispute that there may be some instances when a
circuit court is obligated to investigate potential sixth amendment
violations prior to trial, but the State observes that these are instances
where the circuit court is not required to consider the possible
prejudicial effect on the outcome of the proceedings. See, e.g.,
Holloway v. Arkansas, 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct.
1173 (1978) (when a potential conflict of interest is brought to the
court’s attention at an early stage, the court is obligated to either
appoint separate counsel or take adequate steps to ascertain whether
the risk of conflict is too remote to warrant separate counsel); United
States v. Cronic, 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039
(1984) (complete deprivation of counsel). According to the State,
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because Strickland claims cannot be resolved prior to trial, Krankel is
inapposite in that context. We agree.
Under Strickland, a defendant alleging ineffective assistance of
counsel must demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698,
104 S. Ct. at 2068. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at
694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. The fundamental
problem with addressing Strickland claims prior to trial is that the
outcome of the proceeding has not yet been determined. Because
there is no way to determine if counsel’s errors have affected an
outcome that has not yet occurred, the circuit court cannot engage in
this analysis prior to trial. Accordingly, we reject the appellate court’s
conclusion that a circuit court is obligated to address a pro se
defendant’s Strickland claims prior to trial.
The appellate court in this case also expressed concern that
defendant’s claims in this case
“were never heard. They were simply lost in a shuffle of
changing attorneys and adjourned dates. Their loss makes the
wheels of justice seem completely random, almost like a
roulette wheel. This, we cannot tolerate.” 389 Ill. App. 3d at
267.
Generally a pro se defendant is not obligated to renew claims of
ineffective assistance once they are made known to the circuit court
(see Moore, 207 Ill. 2d at 79), and there is, of course, nothing to
prevent a circuit court from addressing, at the conclusion of trial, a
pro se claim of ineffective assistance that was previously raised by the
defendant. In this case, however, we cannot fault the circuit court for
not pursuing defendant’s pro se claims further. First, defendant’s
contention that he was not represented by counsel at arraignment is
refuted by the record, which clearly indicates that counsel was present
during that proceeding. With respect to defendant’s letter and
“affidavit,” defendant’s only contention regarding the documents in
this appeal is that the circuit court erred in failing to further inquire
into the pro se contentions contained therein, and not that the
contentions themselves have merit. However, it appears from the
record that the circuit court, defendant’s counsel, and the State were
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all unaware of these documents as no mention was made of them at
any point in the proceedings by defendant or anyone else. We cannot
criticize the circuit court for failing to take action on defendant’s
concerns when there is no indication that the court was ever made
aware of them.
Conclusion
For the foregoing reasons, the judgment of the appellate court
remanding the cause to the circuit court is reversed and the judgment
of the circuit court is affirmed.
Appellate court judgment reversed;
circuit court judgment affirmed.
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