Illinois Supreme Court says that State should not take on adversarial role during Krankel hearing (People v. Jolly, 2014 IL 117142)

People v. Jolly, 2014 IL 117142 (December 4, 2014). McLean Co. Appellate court reversed; circuit court reversed; remanded. Defendant John Willie Jolly was convicted at a jury trial of delivery of a controlled substance. He was sentenced as a Class X habitual offender to 16 years DOC. Jolly filed a pro se post-trial motion entitled “Motion to Reduce Sentence.” Jolly raised various ineffective assistance claims in the motion, in addition to challenging his sentence as excessive. The Public Defender’s office thereafter filed a letter with the court indicating that Jolly’s lawyer was no longer with the office, and that a new assistant public defender was reassigned to the case.

Jolly then filed a second pro se motion entitled “Motion to Amend the Motion to Reduce Sentence.” The pro se motion contained additional claims of ineffective assistance of counsel. A hearing was held at which Jolly was represented by counsel from the Public Defender’s office. The Court denied the pro se motions, finding that the sentence was not excessive and that the ineffective assistance claims were untimely. The defendant appealed, and the appellate court remanded the case for a hearing on Jolly’s ineffective assistance claims pursuant to People v. Krankel, 102 Ill. 2d 181 (1984).

The Court then held a “Krankel hearing” on Jolly’s ineffective assistance claims. The Court excused Jolly’s new counsel from the courtroom during the hearing. Jolly thereafter proceeded pro se at the hearing. The Court allowed the defendant to state his claims, but he did not allow the defendant to argue the merits of the claims. The Court finished questioning the defendant about his claims and it asked the State whether they wanted to put on any evidence. The State was allowed to call defendant’s original trial counsel to testify, but the defendant was not allowed to cross-examine him. The defendant and the State were then permitted to argue about whether a full-blown evidentiary hearing on defendant’s ineffective assistance claims should be had.

“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.” ¶ 22. Jolly appealed, the appellate court affirmed, and the Ill. Supreme Court granted PLA.

Jolly argued on appeal 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.” The State actually conceded this, but argued on appeal that the procedural error was harmless because the Court had effectuated the goal of the Krankel hearing by creating a sufficient record of defendant’s claims for appellate review.

The Supreme Court ultimately sided with the defendant, holding that “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.” ¶38. The Court reasoned that “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 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.” ¶40.

The case was then reversed and remanded for a new preliminary Krankel inquiry without the State’s adversarial participation.

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