People v. Pope

10/24 NO. 4-94-0928

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Adams County
KERRY L. POPE, ) No. 94CF238
Defendant-Appellant. )
) Honorable
) Mark A. Schuering,
) Judge Presiding.
_________________________________________________________________

PRESIDING JUSTICE COOK delivered the opinion of the

court:

Following a jury trial, defendant Kerry Pope was
convicted of three counts of aggravated criminal sexual assault.
Ill. Rev. Stat. 1991, ch. 38, par. 12-14(b)(1), now 720 ILCS
5/12-14(b)(1) (West 1994). During the preparation of the presen-
tence investigation report, defendant submitted a written state-
ment to the probation office. In this statement, defendant
essentially alleged that he received ineffective assistance of
counsel. At the sentencing hearing, the trial court indicated
that it had read defendant's statement, but it conducted no
inquiry into the statement's allegations. The court then sen-
tenced defendant to consecutive sentences totalling 80 years'
imprisonment. Defendant appeals, contending that the trial court
erred in not conducting an inquiry into his allegations of
ineffective assistance of counsel. We affirm.
At trial, the evidence established that defendant met
A.K.G. sometime in the summer or fall of 1993, and soon thereaf-ter he became a frequent overnight visitor at her Quincy, Illi-
nois, residence. At the time of their meeting, defendant was 32
years old and A.K.G. was 12. Defendant initiated sexual activity
with A.K.G., telling her that he intended to marry her when she
turned 14. A.K.G. testified that defendant sexually penetrated
her numerous times between November 1993 and March 1994, but
defendant was charged with only three of these incidents. The
first incident occurred sometime in November 1993, in A.K.G.'s
Quincy residence, the second occurred in February 1994, while
A.K.G. and her family were living temporarily in a hotel, and the
third occurred in March 1994, while A.K.G. and defendant were
overnight guests in the home of Carol Reed.
Defendant did not testify at trial, but after his
conviction, he challenged the State's facts in an unsworn state-
ment that was included in defendant's presentence investigation
report. In this statement, defendant expressed dissatisfaction
with his appointed counsel. First, defendant alleged that his
counsel failed to call witnesses. Defendant asserted he first
met A.K.G.'s mother in September 1992, was arrested for an
unrelated offense in October 1992, then spent eight months in
Illinois and Arkansas jails before returning to Quincy. He
continued:
"I lived with a woman, Tammy Thomson, then
with an ex[-]girlfriend Lynda Young, then with
my little brother, all of which were across
town [from A.K.G.]. At no time did I see
[A.K.G.] or her family. Not until I moved
back in with my parents late last fall 93.
All of this could and should have been proven.
These witnesses should have been called."
Defendant further alleged that Young could have testified that
defendant spent weekends at her Quincy residence, contrary to the
State's assertion that defendant was at A.K.G.'s residence on a
daily basis.
In addition to criticizing counsel's failure to call
witnesses, defendant complained that counsel "never asked the
right questions in cross[-]examination." Defendant alleged that
he only met twice with his attorney before trial, "at which time
I tried to get [counsel] to call my witnesses, which obviously he
refused to do. He told me I was a liar and to shut up. Then he
told me to screw myself and walked out. When we did talk, he cut
me short or twisted my words around." Finally, defendant stated,
"I want it on record that I could have proved my case but I was
misinformed or not informed at all as to my options and rights
by--counsel, and was poorly defended by any standard."
Defense counsel did not file a post-trial motion. At
the sentencing hearing, defense counsel stated that he had
reviewed the presentence investigation report with defendant, and
that there were "obviously some things we don't agree with[.]"
Counsel made no clear reference to defendant's allegations of
ineffective assistance of counsel, and defendant said nothing on
the issue at the hearing. The trial court indicated that it had
read defendant's statement, but the court did not inquire about
it. The court said, "[A]lthough you have alluded to the necessi-
ty for others that may have contradicted certain aspects of
testimony, I found that the witnesses were in fact credible and
that there was proof beyond a reasonable doubt for all three of
these offenses." Accordingly, the court imposed consecutive
sentences totalling 80 years' imprisonment.
When a pro se defendant raises a post-trial claim of
ineffective assistance of counsel, the trial court may, under
certain circumstances, appoint new counsel to assist the defen-
dant in the presentation of his claim. People v. Giles, 261 Ill.
App. 3d 833, 847, 635 N.E.2d 969, 979 (1994); People v. Krankel,
102 Ill. 2d 181, 189, 464 N.E.2d 1045, 1049 (1984). The trial
court should first conduct an "adequate inquiry" to determine the
factual basis for defendant's claims. People v. Johnson, 159 Ill. 2d 97, 125, 636 N.E.2d 485, 497 (1994). If the court deter-
mines that the claims lack merit or pertain only to matters of
trial strategy, then new counsel is unnecessary. Giles, 261 Ill.
App. 3d at 847, 635 N.E.2d at 979. If, however, the inquiry
reveals trial counsel's possible neglect of the case, then the
court should appoint new counsel. Giles, 261 Ill. App. 3d at
847, 635 N.E.2d at 979. The appointed counsel can then "under-
take an independent evaluation of the defendant's claim and
present the matter to the court from a detached, yet adversarial,
position." People v. Jackson, 131 Ill. App. 3d 128, 139, 474 N.E.2d 466, 474 (1985). Trial counsel can hardly be expected to
argue his own incompetency. People v. Ruiz, 132 Ill. 2d 1, 9,
547 N.E.2d 170, 173 (1989).
Defendant contends that because the trial court never
conducted an inquiry into his allegations of ineffective assis-
tance of counsel, we must remand for the court to conduct such an
inquiry. The trial court could then determine whether the ap-
pointment of new counsel is warranted. We disagree.
As a threshold matter, it is not clear that defendant
adequately raised the issue of trial counsel's alleged incompe-
tence. Defendant neither filed a pro se motion nor did he ever
request appointment of new counsel. However, a filed, formal
motion is not always necessary to trigger a trial court's duty to
inquire into allegations of ineffective assistance. In People v.
Finley, 222 Ill. App. 3d 571, 584 N.E.2d 276 (1991), the defen-
dant wrote the trial judge a letter in which he alleged that his
trial counsel was ineffective for failing to call specific
witnesses who could have contradicted the State's case. The
first district concluded that remand was necessary to determine
whether appointment of new counsel was warranted because the
trial judge failed to give proper consideration to the potential-
ly meritorious claims contained in the letter. Finley, 222 Ill.
App. 3d at 584, 584 N.E.2d at 285. Similarly, in Giles, we con-
cluded that the defendant "essentially filed a pro se motion with
the trial court" when he sent a letter to the trial judge.
Giles, 261 Ill. App. 3d at 847, 635 N.E.2d at 979.
Here, defendant never asked the trial court for relief.
If a trial court receives notice that a defendant has received
inadequate representation, the court can sua sponte take steps to
safeguard the defendant's rights. However, we held that where a
trial court simply becomes aware that a defendant has criticized
counsel's performance, the court has no duty to investigate
defendant's claims if they are patently without merit or unsup-
ported by specific factual allegations. We note that had defen-
dant filed a petition for post-conviction relief under the Post-
Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1994)),
the trial court could have dismissed without a hearing, claims
that were frivolous, patently without merit, or unsupported by
sufficient facts from which the court could find a valid claim of
deprivation of a constitutional right. See People v. Lemons, 242
Ill. App. 3d 941, 944-46, 613 N.E.2d 1234, 1236-37 (1993). No
greater attention should be afforded more informal claims.
Defendant's claims were either meritless on their face
or unsupported by sufficient factual allegations. First, defen-
dant claimed that his attorney failed to call Young, Thomson, and
his brother as witnesses. Whether a failure to investigate and
present evidence is incompetence depends upon the value of the
evidence. People v. DeRossett, 262 Ill. App. 3d 541, 545, 634 N.E.2d 1257, 1260 (1994). Defendant alleged that these witnesses
could have testified regarding his whereabouts prior to fall
1993. This testimony is simply irrelevant, as the offenses
allegedly commenced in November 1993. Defendant further alleged
that Young could testify that he spent weekends across town at
Young's home. Even if true, this testimony does not provide
defendant with an alibi. Defendant could have spent time in
Young's home and still have been a frequent overnight guest in
A.K.G.'s home. Counsel's failure to present irrelevant testimony
is not incompetence. See DeRossett, 262 Ill. App. 3d at 545, 634 N.E.2d at 1260. Second, defendant claimed that his attorney
failed to ask the "right questions" on cross-examination.
Defendant does not suggest what questions counsel should have
asked. Moreover, trial counsel's decisions regarding the extent
of cross-examination are matters of trial strategy, and such
decisions are not subject to review. See People v. Whitamore,
241 Ill. App. 3d 519, 525, 608 N.E.2d 1304, 1310 (1993). Third,
defendant claimed trial counsel had a bad rapport with defendant.
Counsel allegedly called defendant a liar and told him to screw
himself. However, "the sixth amendment guarantee of counsel does
not also guarantee a 'meaningful relationship' or rapport between
an accused and his counsel." DeRossett, 262 Ill. App. 3d at 544,
634 N.E.2d at 1259, quoting Morris v. Slappy, 461 U.S. 1, 13-14,
75 L. Ed. 2d 610, 621, 103 S. Ct. 1610, 1617 (1983). Finally,
defendant claimed that he was not informed or was misinformed of
his rights and options. Defendant lists only two specifics: (1)
he was not informed that the State could present witnesses in
addition to those who testified at the preliminary hearing, and
(2) he was not informed that he could not present new evidence on
appeal. We cannot see how defendant was prejudiced by this lack
of information.
We conclude that the trial court did not err in failing
to consider defendant's meritless and unsupported claims of inef-
fective assistance of counsel. Remand is unnecessary. However,
we note that if defendant is able to flesh out his claims with
sufficient factual allegations, he may still petition for post-
conviction relief. See 725 ILCS 5/122-1 et seq. (West 1994).
Affirmed.
STEIGMANN and KNECHT, JJ., concur.