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Criminal Nuggets

Oct 13, 2014

In trying to defeat ineffective assistance of counsel claim, am I teaching attorneys how to get away with being ineffective? Of course not.

It is in a defendant’s best interest that all the parties involved know and apply and the law if and when that defendant is going to raise a claim of ineffectiveness. On the other hand, knowing the law also prevents a meritless claim from unnecessarily advancing.

Ineffective Assistance of Counsel Part II

People v. Boose, 2014 IL App (2d) 130810 (09/26/2014), involves a case with what appeared to be a meritless complaint of ineffectiveness made by the defendant. None the less, the case was remanded back to the trial level because the rules were not followed.

Let’s Compare this case to what we talked about in the last post, "Defeat Ineffective Assistance of Counsel Claim From the Get-Go".


Was Defendant deprived of a fair preliminary inquiry into his pro se claims of ineffective assistance of trial counsel because the parties ganged up on him rendering the hearing adversarial?


Defendant was found guilty of violation of order of protection. At the sentencing hearing, defendant filed his own pro se motion to reduce sentence and claimed that trial counsel did not adequately represent him.

Defendant’s Complaints

At a later hearing, defendant told the judge that defense counsel

(1) failed to submit certain relevant evidence, such as a “CD,” which both the State and defense counsel knew could have exonerated defendant, and an irate phone message from Davis, which would have shown that she wanted her child support payment;
(2) failed to subpoena certain witnesses on his behalf, who would have corroborated defendant’s claim that Davis had called him;
(3) failed to argue that the State did not meet its burden of proving that defendant inflicted bodily harm; 
(4) was unprofessional, in that she verbally attacked the State when the State mentioned that defendant’s children did not like him; 
(5) failed to challenge certain potential jurors during jury selection; 
(6) failed to move to dismiss on speedy-trial grounds; 
(7) failed to enforce a stay that had been granted to defendant; 
(8) failed to inform the court of “vindictiveness by the State”; and
(9) tampered with the order of protection.

The Reaction

The trial court then went down defendant’s list. At times seeking information from Defendant, the state and defense counsel.

The trial court denied defendant’s claims, stating:

“All the points were addressed. I did not find a scintilla of evidence that would 
support your claim of ineffective assistance on behalf of [defense counsel], who was a very seasoned defense attorney, gave you good representation; and frankly, [defendant], I can’t believe anything you are saying. They disproved you. The record disproves you. Nice try. That is all I can tell you.”

¶ 23.


When a defendant brings a pro se post trial claim that trial counsel was ineffective, the trial 
court must inquire adequately into the claim and, under certain circumstances, must appoint new counsel to argue the claim. People v. Krankel, 102 Ill. 2d 181 (1984).

The trial court may conduct a preliminary examination by:

(1) questioning trial counsel about the facts and circumstances surrounding the defendant’s allegations;
(2) requesting more specific information from the defendant; or
(3) relying on its own knowledge of counsel’s performance at trial and the insufficiency of the defendant’s allegations on their face. Moore, 207 Ill. 2d at 78-79; Fields, 2013 IL App (2d) 120945, ¶ 39.

If, after a preliminary investigation into the allegations, the court concludes that the defendant’s claim lacks merit or pertains only to matters of trial strategy, the court may deny the claim. Moore, 207 Ill. 2d at 77-78; Fields, 2013 IL App (2d) 120945, ¶ 38. If the defendant’s allegations show possible neglect of the case, the court should appoint new counsel to argue the defendant’s claim. Moore, 207 Ill. 2d at 78; People v. Fields, 2013 IL App (2d) 2014 IL App (2d) 120945, ¶ 38.

The court acknowledged the danger when the States Attorney’s involvement is more than de minimis:

“Although a trial court’s method of inquiry at the Krankel hearing is somewhat 
flexible (by virtue of its ability to ask questions of the defendant, the defendant’s counsel, etc.), and we can envision a situation where the State may be asked to offer concrete and easily verifiable facts at the hearing, no case law suggests that the State should be an active participant during the preliminary inquiry. In fact, typically, virtually no opportunity for State participation is offered during the preliminary inquiry. [Citations.] If the State’s participation during the initial investigation into a defendant’s pro se allegations is anything more than de minimis, there is a risk that the preliminary inquiry will be turned into an adversarial proceeding, with both the State and trial counsel opposing the defendant. That is exactly what occurred here.” (Emphasis omitted.) Id. ¶ 40.


The prosecutor and defense counsel both got a little too heated and argumentative in their responses. The biggest error was in losing their cool.

This case was remanded for another preliminary inquiry before a different judge. Even though, these claims may have all been meritless it was problematic that the State was given such an expanded role in this initial fact finding phase.

At times, the State and defense counsel actually did actively argue against Defendant’s claims. Thus, they in fact gained upon him.

No Defeat Ineffective Assistance of Counsel Claim

Defendant effectively had to argue against both defense counsel and the State. Thus, the proceeding changed from one contemplated by Krankel and its progeny to an adversarial hearing at which defendant was required, to represent himself and argue the merits of each of his claims. See People v. Finley, 63 Ill. App. 3d 95, 103 (1978) (post trial motions constitute a critical stage of the prosecution, for which defendant is entitled to representation).

This will not deemed error harmless.


This one needs to go back to the trial court for a new initial hearing. Parties did not defeat ineffective assistance of counsel claim.