Begins With Dissatisfied Criminal Defendant
Often at the end of a criminal trial when the guilty verdict is entered into the record, a criminal defendant has a chance to inform the court exactly what he thinks his attorney did wrong in the trial.
In Illinois there is an organized method for dealing with this complaint.
The procedure is designed to address a problem at the trial level before it advances to the appellate court.
It’s Called A Krankel Hearing In Illinois
A Krankel hearing generally describes the procedure a judge takes after defendant raises a pro se claim of ineffective assistance of counsel. See People v. Krankel, 102 Ill.2d 181, 464 N.E.2d 1045 (1984).
Here are steps in a Krankel hearing:
- After an initial claim of ineffective of counsel is raised, the trial court should first examine the factual matters underlying the defendant’s claim. See People v. Moore, 207 Ill. 2d 68, 78 (2003).
- If the court determines that the claim lacks merit or pertains only to matters of trial strategy, then it need not appoint new counsel and may deny the pro se motion.
- If, however, the court finds that the allegations show possible neglect of the case, the court must then assign new counsel. The case then proceeds to a full blown evidentiary hearing, a second step. This is an adversarial proceeding where new counsel must be appointed to represent the defendant.
When Is A Krankel Issue Raised?
A Krankel issue may be raised any time after a conviction but before the trial court’s judgment is final.
The issue is most commonly raised between conviction and sentencing, but need not be. For instance, a defendant, may raise that claim on a motion to reconsider sentence.
Often it is raised after a trial the instant the court addresses the accused.
Purpose Of The Krankel Inquiry Is Only To Appoint Counsel
The common law procedure first recognized in Krankel “serves the narrow purpose of allowing the trial court to decide whether to appoint independent counsel to argue a defendant’s pro se posttrial ineffective assistance claims.” People v. Patrick, 2011 IL 111666, ¶ 39.
Thus, “a Krankel hearing is a term of art to describe the hearing the court must conduct when a defendant pro se has raised a posttrial claim regarding his counsel’s ineffective assistance.” People v. McGath, 2017 IL App (4th) 150608, ¶ 51.
The only issue to be decided at a Krankel hearing is whether new counsel should be appointed.
Accordingly, there are only two possible outcomes when a trial court conducts a Krankel hearing:
(1) Court appoints new counsel who should then conduct an independent investigation into the defendant’s claims and take whatever action counsel thinks appropriate or
(2) Court does not appoint new counsel and posttrial matters proceed as in any other case.
Accordingly, at a Krankel hearing, the trial court does not—and cannot—reach the merits of an ineffective assistance claim; the court simply determines whether it is appropriate to appoint new counsel for the defendant to investigate such claims.
The Krankel hearing as a neutral and nonadversarial and an opportunity for the trial court to initially evaluate a defendant’s pro se claims. This initial and nonadversarial evaluation is not the forum at which the merits of a claim of ineffective assistance of counsel are resolved. See also People v. Jolly, 2014 IL 117142, ¶ 38 (state maybe did more than just provide facts in this Krankel hearing).
If the appointment of new counsel is warranted, determining whether the defendant actually received ineffective assistance of counsel is for another day; the court does not reach the merits of such claims at the Krankel hearing.
Exactly What Does Defendant Have To Say To Trigger A Krankel Inquiry?
Defendant can raise the issue through a motion, orally or in a letter.
However, if a defendant does not sufficiently raise an ineffective-assistance claim, he does not trigger the need for the trial court to inquire. “In instances where the defendant’s claim is implicit and could be subject to different interpretations, a Krankel inquiry is not required.” People v. Thomas, 2017 IL App (4th) 150815, ¶ 26.
Yet, the burden can’t be too high for defendant.
The whole point and primary purpose of the preliminary inquiry is to give the defendant an opportunity to flesh out his claim of ineffective assistance so the court can determine whether appointment of new counsel is necessary. Thus, to raise the issue defendant need not address all his concerns in his initial complaint.
The Fact Gathering By The Court
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.
The trial court is not required to automatically appoint new counsel when a defendant raises such a claim.
Rather, the law requires the trial court to conduct some type of inquiry into the underlying factual basis, if any.
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. In making the inquiry, some interchange between the trial court and trial counsel regarding the facts and circumstances surrounding the allegedly ineffective representation is permissible and usually necessary in assessing what further action, if any, is warranted on a defendant’s claim.
Accordingly, the trial court is permitted to inquire of trial counsel about the defendant’s allegations.
Likewise, the court is permitted to discuss the allegations with defendant.
Lastly, the trial court is permitted to make its determination based on its knowledge of defense counsel’s performance at trial and the insufficiency of the defendant’s allegations.
No Set Method
There is no set format for how an initial inquiry into a defendant’s pro se allegations of ineffective assistance of counsel should be conducted. A trial court’s method of inquiry at a Krankel hearing is somewhat flexible. People v. Fields, 2013 IL App (2d) 120945, ¶ 40.
Prosecutions Role In Fact Gathering By The Court Should Be Zero
The State’s participation during the initial fact gathering conductunced by the court should ideally be zero.
And if not zero then de minimis.
The prosecutor must not editorialize. The state must never take on an argumentative stance. There can be no adversarial edge to the proceeding whatsoever.
Krankel Hearing Proceedings – What Not To Do
What the trial court may not do, however, is seek input from the State on the merits of the defendant’s pro se claims of ineffective assistance of counsel.
Doing so converts this initial and nonadversarial proceeding into a contested hearing on the merits—a hearing at which the defendant would necessarily be forced to prove the merits of his claims pro se against the arguments of the State’s Attorney.
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. This effectively leaves defendant alone in a substantive hearing without counsel.
No True Second Stage
Courts have used the terms “Krankel hearing,” “Krankel inquiry,” “preliminary Krankel inquiry,” and words to that effect interchangeably; this lack of consistency may be responsible for some of the confusion that exists, as seen in the proceedings in this case.
There is no true second stage or subsequent Krankel inquiry because the sole issue to be resolved at a Krankel hearing is whether new counsel should be appointed.
Once the trial court determines whether to appoint new counsel, the Krankel inquiry is over; if the court appoints new counsel, the case proceeds regarding the defendant’s claims of ineffective assistance as determined by new counsel.
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.
How Does A Judge Know When A Claim Lacks Merit?
There are generally four primary ways for a trial court to conclude Krankel claim “lacks merit.” If a court concludes that a claim lacks merit the inquiry ends and new counsel is not appointed.
A Krankel claim lacks merit if the court concludes it is any one of the the following:
(3) Legally Immaterial or
(4) Pertains Solely to an Issue of Trial Strategy.
See People v. Johnson, 159 Ill. 2d 97, 126, 636 N.E.2d 485, 498 (1994); Moore, 207 Ill. 2d at 78.
An allegation is conclusory when a defendant is unable to add any additional factual basis to support his bare allegation from which a court could infer a basis in support of an ineffective assistance claim.
For instance, in People v. Towns, 174 Ill. 2d 453, 467, 675 N.E.2d 614, 620-21 (1996), the defendant’s allegations were properly deemed conclusory because he claimed his counsel should have investigated “relevant facts and witnesses,” but defendant offered no explanation as to what or to whom he was referring.
An allegation is conclusory when despite the trial court’s making every effort to ascertain the nature and substance of defendant’s ineffectiveness claim, the defendant provided no facts from which the court could infer a basis in support of such claim.
A claim is misleading—and therefore lacks merit—when the record clearly rebuts or contradicts the substance of the allegations, demonstrating that the claim for ineffective assistance is unsupported.
In Johnson, the defendant claimed his attorneys failed to investigate police misconduct, including that he was beaten and that a witness lied under oath. Johnson, 159 Ill. 2d at 126. However, the record revealed that trial counsel presented significant evidence of the alleged police misconduct and, contrary to the defendant’s claims, the witness admitted to the very fact defendant claimed he lied about.
A claim may also be misleading when the inquiry at the Krankel hearing reveals that the defendant’s assertions are false. For example, a defendant may claim to have an exculpatory witness whom his counsel failed to present.
However, after an inquiry at the Krankel hearing, the court may learn (from defense counsel or defendant) that the witness’s testimony was
(1) not helpful to the defendant or
(2) contrary to his claims.
See People v. Nitz, 143 Ill. 2d 82, 135, 572 N.E.2d 895, 919 (1991) (court determined that witnesses’ testimony was not in accord with defendant’s representations and was actually inapposite to his claims).
If a claim that is taken as true, either on its face or after inquiry, would still not support a finding of ineffective assistance, then it is legally immaterial.
In People v. Giles, 261 Ill. App. 3d 833, 846, 635 N.E.2d 969, 979 (1994), the defendant was convicted of aggravated criminal sexual assault and argued that his trial counsel was ineffective for not arguing the victim’s hymen was not torn, despite the medical evidence supporting such a finding.
The court noted that only slight contact with the victim’s vagina was required to support the conviction, and thus, the medical evidence had no bearing on counsel’s performance.
Matter of Trial Strategy
A claim may be meritless if it pertains solely to a matter of trial strategy.
When dealing with matters of trial strategy, the trial court at the Krankel hearing must determine if the allegations and factual bases could support a claim that trial counsel was objectively unreasonable. If the allegations and factual bases could support that claim, new counsel should be appointed.
Trial clourts must take special care to not read this rule to strictly. For just about any claim relating to trial strategy could be considered exempt under Krankel. That is not the rule.
“If the allegations and factual bases could support that claim, new counsel should be appointed.” People v. Maya, 2019 IL App (3d) 180275, ¶ 27. Stated another way, “a defendant need not actually demonstrate ineffective assistance, but merely show possible neglect of the case.” Id. See also People v. Lawson, 2019 IL App (4th) 180452 (August), and People v. Miller, 2013 IL App (1st) 110879, ¶ 84.