Docket No. 107536.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
THOMAS TAYLOR, Appellant.
Opinion filed April 15, 2010.
JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Thomas, Kilbride, Garman,
and Karmeier concurred in the judgment and opinion.
Justice Burke specially concurred, with opinion.
OPINION
Following a bench trial in the circuit court of Cook County,
defendant Thomas Taylor was convicted of possession of a controlled
substance with intent to deliver, a Class 2 felony. Because of two prior
convictions for Class 2 or greater offenses, he was sentenced as a
Class X offender and was given a sentence of seven years’
imprisonment. The appellate court affirmed the conviction and
sentence. No. 1–06–3061 (unpublished order under Supreme Court
Rule 23). For the reasons set forth below, we affirm the judgment of
the appellate court.
BACKGROUND
In September 2004 defendant was charged by information with
one count of possession of less than one gram of a controlled
substance–heroin–with intent to deliver, within 1,000 feet of a school
(720 ILCS 570/401(d), 407(b)(2) (West 2004)), and one count of
possession of less than one gram of a controlled
substance–heroin–with intent to deliver (720 ILCS 570/401(d) (West
2004)). Prior to trial, defendant was in court on December 14, 2004,
when his privately retained counsel sought a reduction in defendant’s
bond. The State objected, noting, among other things, that “defendant
is [Class] X mandatory *** because he has three felonies in his
background, including a robbery and a burglary.” The court granted
defendant’s motion, reducing the bond from $60,000 to $25,000. On
the next court date, January 12, 2005, defendant was present when the
State informed the court that a previously tendered offer to accept a
plea to a “reduced charge” had been rejected by defense counsel, and
“the offer is no longer available.”
Defendant’s trial, which was before a different judge, took place
in spring 2006. Chicago police officer L. Olivares testified that about
noon on August 16, 2004, he was conducting plain-clothes
surveillance outside a courtyard building when he saw two different
women, on separate occasions, approach defendant outside the
building and give him an unknown amount of United States currency.
After defendant received the money, he would go to the building,
retrieve a small object from a plastic bag in a doorway, and give the
object to the woman. Olivares radioed his enforcement team, which
consisted of three officers, including Officer Vincent Francone.
Francone testified that when the enforcement team arrived at the
scene, the other two officers detained defendant, and Francone went
to a doorway in the courtyard building and recovered a plastic bag
containing six individual bags. Defendant was taken into custody.
Illinois State Police forensic chemist Monica Kinslow testified that she
performed tests on the contents of one of the six bags, which weighed
0.094 grams, and the tests were positive for heroin.
After the State rested, defense counsel moved for a directed
finding. The circuit court granted the motion as to count I, possession
with intent to deliver within 1,000 feet of a school, because there was
not “any testimony about a school in the area or the distance from the
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alleged location to the school.” The court denied the motion as to
count II, possession with intent to deliver.
Stephanie Scott testified for the defense that on August 16, 2004,
she went to the courtyard building at about 12:20 p.m. to meet
defendant for lunch. She arrived by bus and went to find defendant,
who worked for a construction company in the building. She knocked
on the door, defendant emerged, and they walked around to the front
of the building. As they walked, defendant gave her money to buy
lunch and bring it back. As she was crossing the street to get lunch, a
police car pulled up, a couple of officers jumped out and ran up to
defendant, and one of them handcuffed him.
Defendant testified that on August 16, 2004, he was an
independent contractor working for the J.S. Barber Construction
Company in the courtyard building. Defendant denied selling cocaine
or any other controlled substance on that day. According to
defendant, immediately before he was arrested he was in his office in
the courtyard building looking at paperwork while waiting for Scott
to arrive. When she knocked on the door, he came out and they went
to the front of the building. Defendant gave Scott $20 to pick up
lunch, and at that point defendant saw a police car driving past, and
one of the officers saw defendant handing Scott the money. After
defendant gave Scott the money, she started across the street to get
lunch, and defendant went to a nearby stoop, sat down and started to
read a newspaper. The police car pulled up and two officers got out
and walked up to defendant. One of them handcuffed him and
searched him, and defendant was placed in the police car.
The circuit court found defendant guilty of possession of a
controlled substance with intent to deliver, a Class 2 felony. Defendant
filed a motion for a new trial, and the court denied it. At sentencing,
which took place on June 27, 2006, the State noted that this was
defendant’s fourth felony conviction. According to the presentence
investigation report, defendant was previously convicted of burglary,
robbery, and possession of a controlled substance with intent to
deliver. He was sentenced for the burglary and robbery convictions in
1989, and for the possession of a controlled substance conviction in
1993. It was undisputed that the burglary was a Class 2 offense and
the possession with intent to deliver was a Class 1 offense. Defendant
thus had at least two prior convictions for Class 2 or greater offenses.
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The State noted that, under section 5–5–3(c)(8) of the Unified Code
of Corrections (730 ILCS 5/5–5–3(c)(8) (West 2004)), defendant was
required to be sentenced as a Class X offender, with a range of 6 to
30 years’ imprisonment.1 The State sought a sentence greater than the
minimum, and defense counsel requested the minimum.
In allocution, defendant stated, in pertinent part:
“Excuse me, I’m sorry, your Honor, but I had no idea. I
had no idea what I was facing. I know it was my
responsibility, but I had no idea what I was facing for this type
of situation.
Considering what my family is going through right now, I
wouldn’t [have taken] that chance. The offer that was made to
me, I would [have] jumped into it with both feet if I knew that
I was facing this type of situation.
I’ve been trying hard. I’ve tried hard since the last time I
got out of jail. I kept the same job and stayed in the same
place since I’ve been home, since I’ve been home since ’95
because that almost destroyed me. I lost my first family and
my kids then. And I don’t want to lose my family again. I’m
41 years old. I’m fixin[g] to be 42. I can’t go through this
again, your Honor. I had no idea that if–I had no idea that,
Mr. Taylor, if you don’t take the three years[2] and you get
found guilty, you’re going to [get] six to 30, not that you
could *** get six to 30. That you probably–that you would
get six to 30.
1
Section 5–5–3(c)(8) provides, in relevant part: “When a defendant, over
the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having
twice been convicted *** of an offense that contains the same elements as an
offense now classified in Illinois as a Class 2 or greater Class felony and
such charges are separately brought and tried and arise out of different series
of acts, such defendant shall be sentenced as a Class X offender.” 730 ILCS
5/5–5–3(c)(8) (West 2004).
2
The record does not include the State’s specific plea offer to defendant.
However, it apparently was an offer to accept a plea of guilty to a reduced
charge with a sentence of three years’ imprisonment.
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[There’s] no way on God’s earth[ ] I would [have taken]
that chance knowing the situation, knowing me, and the
situation with my family.”
Following defendant’s statement, the circuit court sentenced
defendant to seven years in the custody of the Department of
Corrections. In imposing sentence, the court stated it had considered
the arguments in aggravation and mitigation, as well as defendant’s
statement. The court added it was “mindful of the rehabilitation
potential of [defendant] *** the need to protect society *** [and] the
presentence investigation.” The court also ordered defendant to pay
various fees and fines. Defense counsel filed a motion to reconsider
sentence, which was denied. The court appointed appellate counsel to
represent defendant.
On appeal, defendant argued that his statement at sentencing
implied defense counsel was ineffective for failing to advise him about
the possible penalties if he rejected the State’s plea offer. According
to defendant, the circuit court erred by failing to inquire into this
implicit pro se claim of ineffective assistance, to determine whether it
had potential merit and whether new defense counsel should be
appointed to argue the claim. The appellate court rejected defendant’s
argument, concluding that even if the statement at sentencing were
interpreted as a claim of ineffective assistance, the circuit court had no
duty to inquire into it where, inter alia, defendant was represented by
privately retained counsel. No. 1–06–3061 (unpublished order under
Supreme Court Rule 23). The appellate court affirmed defendant’s
conviction and sentence. The court also ordered a modification of
defendant’s fines and fees order to reflect $155 in credit for time
served in custody prior to sentencing. No. 1–06–3061 (unpublished
order under Supreme Court Rule 23). We allowed defendant’s
petition for leave to appeal. 210 Ill. 2d R. 315.
ANALYSIS
This court has previously considered the issue of whether new
counsel should be appointed where a defendant brings a pro se
posttrial motion alleging ineffective assistance of counsel. In a line of
cases beginning with People v. Krankel, 102 Ill. 2d 181 (1984), the
following rule developed. New counsel is not automatically required
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in every case where a defendant brings such a motion. Instead, the
trial court should first examine the factual basis of the defendant’s
claim. If the court determines the claim lacks merit or pertains only to
matters of trial strategy, new counsel need not be appointed and the
pro se motion may be denied. However, if the defendant’s allegations
show possible neglect of the case, new counsel should be appointed
to argue the defendant’s claim of ineffective assistance. People v.
Moore, 207 Ill. 2d 68, 77-78 (2003) (citing cases); People v. Munson,
171 Ill. 2d 158, 199-200 (1996). “The appointed counsel can
independently evaluate the defendant’s claim and would avoid the
conflict of interest that trial counsel would experience if trial counsel
had to justify his or her actions contrary to defendant’s position.”
Moore, 207 Ill. 2d at 78.
Defendant here argues his statement at sentencing was an
“implicit” claim of ineffective assistance of counsel, and the circuit
court therefore was required to conduct a Krankel inquiry. Defendant
contends the circuit court made no such inquiry. He argues, in
addition, that the appellate court erred in holding that a defendant
represented by privately retained counsel is not entitled to a Krankel
inquiry. Defendant notes that, in reaching this conclusion, the
appellate court relied on this court’s decision in People v. Pecoraro,
144 Ill. 2d 1 (1991). Defendant’s arguments present questions of law,
which we review de novo. See Moore, 207 Ill. 2d at 75.
We turn to the question of whether defendant’s statement at
sentencing constituted a pro se claim of ineffective assistance of
counsel sufficient to trigger the circuit court’s duty to conduct a
Krankel inquiry.
We note initially that nowhere in defendant’s statement at
sentencing did he specifically complain about his attorney’s
performance, or expressly state he was claiming ineffective assistance
of counsel. Defendant’s characterization of his statement as an
“implicit claim of ineffective assistance of counsel” is an
acknowledgment of this point. Defendant nevertheless argues that his
statement provided a “clear basis” for a claim of ineffective assistance.
Defendant correctly notes that “a pro se defendant is not required to
do any more than bring his or her claim to the trial court’s attention.”
Moore, 207 Ill. 2d at 79. In Moore, this point was supported by
citation to two appellate court decisions, People v. Giles, 261 Ill.
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App. 3d 833 (1994), and People v. Finley, 222 Ill. App. 3d 571
(1991). It is true that, similar to defendant here, neither the defendant
in Giles nor the defendant in Finley filed a conventional, written pro
se posttrial motion alleging ineffective assistance. Instead, in each case
the “claim” was included in correspondence to the trial court. In Giles,
“[a]fter defendant’s trial and before his sentencing hearing, defendant
sent a letter to the trial court criticizing his counsel’s performance.”
Giles, 261 Ill. App. 3d at 846. The letter included five separate bases
for claiming that counsel was ineffective. Similarly, in Finley,
following defendant’s conviction, he “wrote three letters to the trial
judge” providing the names of potential witnesses. Finley, 222 Ill.
App. 3d at 576. Defendant “charged that his public defender did not
attempt to contact these potential witnesses and that she ‘did not
represent me to the best of her ability.’ ” Finley, 222 Ill. App. 3d at
576. While neither of these “claims” was conventional, each
nonetheless expressly complained about counsel’s performance, unlike
defendant.
The State responds that the record here fails to demonstrate a
“clear basis” for any allegation of ineffective assistance of counsel, and
the circuit court therefore had no duty to inquire into counsel’s
effectiveness. As the State correctly notes, there is nothing in
defendant’s statement specifically informing the court that defendant
is complaining about his attorney’s performance. Indeed, defendant
does not mention his attorney. In addition, because of the rambling
nature of defendant’s statement, it is amenable to more than one
interpretation. For example, according to the State, “defendant’s
statement merely shows regret at not accepting the more
advantageous plea deal before trial, and not that he rejected the offer
based upon a material misunderstanding of what sentence he faced.”
See People v. Grant, 71 Ill. 2d 551, 557-58 (1978) (rejecting
argument that trial court erred in failing to give particular jury
instruction, stating: “If a defendant does not articulate his theory ***
he cannot reasonably expect the trial court, unaided, to divine his
intent”). If defendant’s statement in the case at bar were deemed
sufficient to require a Krankel inquiry, few statements would be
insufficient. We agree with the State that defendant’s statement at
sentencing was insufficient to require such an inquiry.
Because of our disposition of this appeal, we need not reach the
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remainder of defendant’s arguments, including defendant’s claim that
the appellate court erred in holding, pursuant to Pecoraro, that a
defendant represented by privately retained counsel is not entitled to
a Krankel inquiry. We express no opinion regarding that decision by
the appellate court, which is irrelevant to our holding that it was
defendant’s statement in itself which was insufficient to require such
an inquiry.
CONCLUSION
We affirm the judgment of the appellate court, but for reasons
other than those set forth by that court.
Affirmed.
JUSTICE BURKE, specially concurring:
I agree with the majority’s conclusion that defendant’s statement
to the circuit court was insufficient to warrant an inquiry pursuant to
People v. Krankel, 102 Ill. 2d 181 (1984). I write separately because
I believe we must also address defendant’s claim that the appellate
court erred in holding, pursuant to People v. Pecoraro, 144 Ill. 2d 1
(1991), that a defendant represented by privately retained counsel is
not entitled to a Krankel inquiry.
When interpreting Pecoraro, our appellate court has reached
contradictory conclusions regarding the appointed counsel/private
counsel issue. In People v. Shaw, 351 Ill. App. 3d 1087, 1092 (4th
Dist. 2004), the appellate court noted that the defendant, “as in
Pecoraro,” was represented by private counsel and held, similar to the
appellate court below, that a Krankel inquiry was not required. In
People v. Johnson, 227 Ill. App. 3d 800, 810 (1st Dist. 1992), on the
other hand, the court stated: “[W]e do not believe Pecoraro stands for
the proposition that a trial court is free to automatically deny a pro se
request for new counsel simply because the defense counsel who was
allegedly ineffective was privately retained.”
The primary reason we allowed the petition for leave to appeal in
the case at bar was to resolve the conflict in our appellate court on
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this issue. Yet, the majority makes no effort to do so. Instead, the
majority assumes, without deciding, that Krankel applies to privately
retained counsel since it addresses the merits of defendant’s claim on
a factual basis. Rather than simply assuming that Krankel applies to
privately retained counsel, I would address the conflict in the appellate
court and clarify our holding in Pecoraro.
In Pecoraro, the defendant filed posttrial motions, both pro se and
through his counsel, alleging ineffective assistance of counsel, and the
trial court denied the motions. On appeal, the defendant argued that,
under Krankel, the trial court should have appointed other counsel to
argue his motions alleging ineffective assistance. This court
distinguished Krankel and held that it did not apply. The court stated:
“Unlike Krankel, where defendant was represented by an
appointed public defender at both trial and post-trial motions,
defendant Pecoraro retained private counsel to represent him
at trial and in post-trial motions. It was not within the trial
court’s rubric of authority to advise or exercise any influence
or control over the selection of counsel by defendant, who
was able to, and did, choose counsel on his own accord.
[Citation.] Moreover, the trial judge could not force defendant
to retain counsel other than that chosen by defendant.
[Citation.] Defendant and his counsel were the only parties
who could have altered their attorney-client relationship.
Defendant could have retained other counsel to represent him
prior to the hearing of his post-trial motions.” Pecoraro, 144
Ill. 2d at 15.
We concluded, “Krankel is a fairly fact-specific case, and the
circumstances in the case at hand, where defendant retained his own
private counsel and did not request that he be represented by other
counsel, do not warrant the application of Krankel.” Pecoraro, 144
Ill. 2d at 15. 3
3
The dissenting justice disagreed, arguing it was “irrelevant” whether
counsel was appointed or retained. “It is as equally inappropriate for private
counsel to argue his incompetence at a post-trial hearing as it is for an
appointed public defender.” (Emphasis in original.) Pecoraro, 144 Ill. 2d at
23 (Clark, J., dissenting).
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As noted above, the appellate court has reached contradictory
conclusions as to how to read Pecoraro. To read Pecoraro as
distinguishing between appointed and retained counsel would create
a conflict with Cuyler v. Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333,
100 S. Ct. 1708 (1980). In Sullivan, a habeas case, the respondent
alleged ineffective assistance of counsel based on potential conflicts
of interest arising from privately retained counsel’s representation of
multiple defendants. The petitioners argued, in response, that the
alleged failings of privately retained counsel could not provide the
basis for a writ of habeas corpus. The Court rejected this argument.
“A proper respect for the Sixth Amendment disarms
petitioner[s’] contention that defendants who retain their own
lawyers are entitled to less protection than defendants for
whom the State appoints counsel. We may assume with
confidence that most counsel, whether retained or appointed,
will protect the rights of an accused. But experience teaches
that, in some cases, retained counsel will not provide adequate
representation. The vital guarantee of the Sixth Amendment
would stand for little if the often uninformed decision to retain
a particular lawyer could reduce or forfeit the defendant’s
entitlement to constitutional protection. Since the State’s
conduct of a criminal trial itself implicates the State in the
defendant’s conviction, we see no basis for drawing a
distinction between retained and appointed counsel that would
deny equal justice to defendants who must choose their own
lawyers.” Sullivan, 446 U.S. at 344-45, 64 L. Ed. 2d at 344,
100 S. Ct. at 1716.
This holding was reaffirmed in Mickens v. Taylor, 535 U.S. 162,
152 L. Ed. 2d 291, 122 S. Ct. 1237 (2002), where the defendant, who
was convicted of murder, alleged ineffective assistance because one
of his court-appointed attorneys had a conflict of interest at trial. 4 In
response to a dissenting justice’s suggestion “that a trial court must
scrutinize representation by appointed counsel more closely than
representation by retained counsel,” the Court cited Sullivan and
stated: “But we have already rejected the notion that the Sixth
4
The attorney had previously represented the murder victim.
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Amendment draws such a distinction.” Mickens, 535 U.S. at 168 n.2,
152 L. Ed. 2d at 302 n.2, 122 S. Ct. at 1242 n.2, citing Sullivan, 446
U.S. at 344, 64 L. Ed. 2d at 344, 100 S. Ct. at 1716.
To read Pecoraro as prohibiting a Krankel inquiry simply because
counsel was retained would conflict with Supreme Court authority
and would be a violation of the sixth amendment right to effective
assistance of counsel. Accordingly, I would resolve the conflict in the
appellate court by clarifying that Pecoraro does not stand for the
proposition that Krankel only applies to appointed counsel.
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