{ "id": 4283209, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIC M. PENCE, Defendant-Appellant", "name_abbreviation": "People v. Pence", "decision_date": "2009-01-30", "docket_number": "No. 2-06-0994", "first_page": "989", "last_page": "996", "citations": [ { "type": "official", "cite": "387 Ill. App. 3d 989" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "183 Ill. 2d 366", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209962 ], "year": 1998, "pin_cites": [ { "parenthetical": "sufficiency of allegations in a postconviction petition is a purely legal issue and reviewed de novo" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0366-01" ] }, { "cite": "329 Ill. App. 3d 59", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1472410 ], "weight": 7, "year": 2002, "pin_cites": [ { "page": "66" }, { "page": "66" }, { "page": "66" }, { "page": "66" }, { "page": "66" }, { "page": "66" }, { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/329/0059-01" ] }, { "cite": "157 Ill. 2d 68", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 778578 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "86" }, { "page": "86" }, { "page": "86" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/157/0068-01" ] } ], "analysis": { "cardinality": 647, "char_count": 17484, "ocr_confidence": 0.761, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14380471602784564 }, "sha256": "9986516b19435ebfdd54ed134f060e5f5936e14550c8113f8c8a2547026aa5dc", "simhash": "1:a30a949b6fc6b7e4", "word_count": 2962 }, "last_updated": "2023-07-14T22:05:00.567552+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIC M. PENCE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE SCHOSTOK\ndelivered the opinion of the court:\nDefendant, Eric M. Pence, appeals from his convictions of one count of aggravated criminal sexual abuse and two counts of criminal sexual assault. The issue on appeal is whether the trial court made an appropriate inquiry into defendant\u2019s posttrial allegations of ineffective assistance of counsel. For the reasons that follow, we remand.\nOn June 14, 2006, following a bench trial, defendant was found guilty of one count of aggravated criminal sexual abuse (720 ILCS 5/12 \u2014 16(c) (l)(i) (West 2006)) and two counts of criminal sexual assault (720 ILCS 5/12 \u2014 13(a)(4) (West 2006)).\nPrior to the sentencing hearing, on September 15, 2006, the parties appeared before the court. Defense counsel informed the court that defendant had filed a complaint against him with the Attorney Registration and Disciplinary Commission (ARDC) and that defendant had refused to disclose to defense counsel the contents of the complaint. Thereafter, the following colloquy occurred between the court and defendant:\n\u201cTHE COURT: [Defendant], tell me what\u2019s going on.\nDEFENDANT PENCE: Your Honor, with all due respect, I don\u2019t understand why this is being brought to your attention. I did not fire\u2014\nTHE COURT: Let me explain why it\u2019s brought to my attention. It has to be brought to my attention if there is going to be a problem on your part with [defense counsel] representing you. If you feel that somehow he has been ineffective in his representation of you during the course of trial, then I also have to know whether or not, given that, if that\u2019s your belief, you continue to want him to represent you at a sentencing which is a very crucial part of the case.\nIf you are unhappy with his representation, you think he hasn\u2019t done the job that you feel he should have done, then the question is, why would you want him to represent you at the sentencing hearing? That\u2019s why I\u2019m asking.\nDEFENDANT PENCE: Well, okay. Fine.\nI understand that.\nBut the matter in which I had hired him still is that intention [sic]. I have not fired him. He is still under obligation to fulfill his duty that he was hired for.\nTHE COURT: He is willing to do that.\nBut I have to know that that\u2019s your choice, your decision, even if you perhaps have filed such a complaint, do you continue to want [defense counsel] to represent you at that sentencing hearing?\nDEFENDANT PENCE: Correct.\n[DEFENSE COUNSEL]: My only concern, the only comment I would have, I have some concerns about some things not only are they going to end up in another complaint\u2014\nTHE COURT: He has retained you. He says he wants you to represent him. I don\u2019t think I could tell him he can\u2019t have you represent him if that\u2019s who he wants.\n[DEFENSE COUNSEL]: That\u2019s fine.\u201d\nOn September 18, 2006, prior to the start of the sentencing hearing, the following colloquy occurred between the trial court and defendant:\n\u201cTHE COURT: *** [Defendant], I want to be sure we\u2019re all absolutely clear as to how you want to proceed today. It\u2019s my understanding when we talked the other day that you want [defense counsel] to represent you in this sentencing hearing; is that correct?\n[DEFENDANT]: Yes, your Honor.\nTHE COURT: You\u2019re not asking for time to get a new lawyer, correct?\n[DEFENDANT]: I\u2019m afraid I can\u2019t do that at the moment.\nTHE COURT: That\u2019s not my question. My question is, sir, you filed a complaint against the attorney with the [ARDC] against [defense counsel], I need to know whether you want him to represent you at this hearing, or if you wanted time to find a new lawyer to represent you. If you cannot afford an attorney, then I have to inquire as to whether I can appoint an attorney for you. In order to do that, I have to find out the nature of your complaint with the [ARDC]. I have to know how you want to proceed.\n[DEFENDANT]: Well, I feel that he should fulfill his obligation, and I would like to proceed with these matters.\nTHE COURT: Okay. This is your choice; is that correct?\n[DEFENDANT]: That\u2019s correct.\nTHE COURT: Okay. I have found cases that say it is not a per se conflict of interest.\n[ASSISTANT STATE\u2019S ATTORNEY]: We found similar cases and showed them to Counsel, People versus Childress, and just as long as the \u2014 if the Court would also maybe even inform the defendant that even though it\u2019s not a per se conflict, just should there be some conflict, is he waiving it today?\nTHE COURT: Well, I think there is no conflict. The cases say there is no per se conflict. He\u2019s choosing to proceed. It\u2019s his choice. I want to be sure to give him one. Either he wanted to proceed with [defense counsel], that he didn\u2019t want time to find [a] new\nlawyer; or that he didn\u2019t want me to appoint new counsel to represent him, in which case then I have to make an inquiry as to the basis of his complaint. He is telling me he doesn\u2019t want to do any of those things. He wants [defense counsel] to represent him, so we\u2019ll proceed.\u201d\nFollowing the presentation of evidence in aggravation and in mitigation, defendant made the following statement:\n\u201c[DEFENDANT]: *** First, I would like to thank you for letting me address you, address the Bench. Secondly, I do respect your decision, although there were issues of facts that my defense looked [sic] and omitted. You were denied the full picture for which you[r] verdict may have changed.\nIn accepting your verdict, I now beseech your honesty and justice with your judgment. I plead for your mercy and lenience, and I implore that you realize my background is free of such felony convictions. Again, I request your fair judgment in handing out my sentence. In sum, I feel my defense did not thoroughly represent me. I only hope now that you be fair and unbiased in sentencing me. Thank you. God bless you.\u201d\nThe trial court sentenced defendant to nine years\u2019 imprisonment on each conviction of criminal sexual assault and to three years\u2019 imprisonment on the conviction of aggravated criminal sexual abuse, to be served consecutively.\nDefendant filed a motion to reconsider his sentence. At the outset of the hearing on the motion, on September 28, 2006, the following colloquy occurred:\n\u201c[ASSISTANT STATE\u2019S ATTORNEY]: ***\n*** We would ask, based upon the defendant\u2019s statement of allocution indicating that there was some defect or omission by counsel in presenting evidence or presenting information to this Court either \u2014 whether it be at sentencing or at trial or both, we believe that\u2019s \u2014 at this juncture it\u2019s appropriate for the Court to inquire of the defendant what that is so that if that\u2019s something that the defendant, now of his own accord, is saying to this Court is some defect in proceedings, that should be made of record now and we\u2019re asking the Court to make an inquiry.\nTHE COURT: You\u2019re going to have to refresh my memory. What was it that he said?\n[ASSISTANT STATE\u2019S ATTORNEY]: In his statement of allocution the defendant indicated that the Court did not see the full story in that not all evidence was brought on his behalf.\nAnd it\u2019s our position that it was fairly obvious that he was talking about his counsel.\nAnd, again I know we\u2019ve been through this before, but, Judge, now is the time to address that issue.\nAnd if the defendant does not want to address that issue and doesn\u2019t want to make a disclosure to the Court or doesn\u2019t want to present that information, that\u2019s fine. But then that\u2019s his right and that\u2019s his knowing waiver of that.\nBut we believe it\u2019s important now that we\u2019re down to the trial proceedings, for purposes of any appeal, that the defendant present that information so we can handle it now while it\u2019s appropriate to handle it and while the witnesses have things fresh in their mind and while the proceedings are close in time to the judgment of the Court.\nWe would ask the Court to inquire of the defendant about those matters and about anything that he believes was not presented to [the] Court.\nTHE COURT: Okay. We did, I think, in essence cover some of this before the sentencing hearing when Mr. \u2014 the indication was that [defendant\u2019s] father complained of the terms of registration regarding the case. And [defendant] indicated at that time that he didn\u2019t want to get into the matter and wanted [defense counsel] to continue to represent him.\nBut we are at a stage, [defendant], at this point where sentence has been entered. Your appellate rights were explained to you.\nIf there is an issue that this Court can correct at this point in time, now is the point in time to do it.\nYou run the risk, sir, by not raising it at this point in time that it might be considered waived on appeal. Because the purpose of posttrial motions is to give the Court the opportunity to correct any errors that may have been made during the course of trial or sentencing.\nSo again, sir, I would ask you as to whether you wish to do that or not?\n[DEFENDANT]: I\u2019m going to need some time. I\u2019m going to need at least a month possibly to look into additional, if not new, counsel.\nTHE COURT: Well\u2014\n[DEFENDANT]: That decision I can\u2019t make right at this moment.\nTHE COURT: Your appeal time, sir, is going to run from today\u2019s date. As I explained to you, you have 30 days. There is no other motion on\u2014\nDEFENDANT: I understand.\nTHE COURT: \u2014file other than the motion to reconsider the sentence which I\u2019m going to deny in terms of the motion to reconsider the sentence.\nBut in terms of any other issue, you have 30 days from today\u2019s date to file your notice of appeal.\nAnd, again, I think if you don\u2019t file some type of motion within this Court within that period of time raising some issues, you run the risk that they will be considered waived on appeal. That\u2019s all I can tell you.\nAnything else you want?\n[ASSISTANT STATE\u2019S ATTORNEY]: No, Judge.\nBut in light of the Defendant\u2019s response, I guess we\u2019d ask that maybe the matter be set over \u2014 not for a month.\nTHE COURT: I\u2019m not going to set it for a\u2014\n[ASSISTANT STATE\u2019S ATTORNEY]: Maybe a week.\nTHE COURT: If he wants to file a motion, he can file a motion. If he doesn\u2019t want to, he doesn\u2019t want to.\nHe\u2019s going to [the] Department of Corrections. I\u2019m not going to stay it.\u201d\nDefendant timely appealed.\nDefendant argues that the trial court failed to adequately inquire into the basis of defendant\u2019s allegations concerning his attorney\u2019s ineffectiveness at trial, specifically, the claims he made in allocution that \u201c[his] defense did not thoroughly represent [him]\u201d and that \u201cthere were issues of facts that my defense looked [sic] and omitted\u201d and, further, that the court was \u201cdenied the full picture for which you[r] verdict may have changed.\u201d The State responds that \u201cdefendant was asked specifically, and on more than one occasion, to specify any problems he might have had with his attorney, but he refused to do so.\u201d\nWhen a defendant makes a pro se posttrial claim of ineffective assistance of counsel, \u201cthe trial court must at least examine the factual matters underlying the defendant\u2019s claim.\u201d People v. Robinson, 157 Ill. 2d 68, 86 (1993); People v. Sanchez, 329 Ill. App. 3d 59, 66 (2002). If, after examining the factual matters, the court determines that the claim lacks merit or pertains only to matters of trial strategy the court may deny the motion. Robinson, 157 Ill. 2d at 86; Sanchez, 329 Ill. App. 3d at 66. If the allegations suggest possible neglect of the case, the court should appoint new counsel to assist in the motion. Robinson, 157 Ill. 2d at 86; Sanchez, 329 Ill. App. 3d at 66.\nAs to our standard of review, defendant maintains that it is de novo because \u201cthe sufficiency of the allegations is purely a legal issue.\u201d See, e.g., People v. Coleman, 183 Ill. 2d 366 (1998) (sufficiency of allegations in a postconviction petition is a purely legal issue and reviewed de novo). The State maintains that \u201cthere is no legal determination to be reviewed, but a factual one: whether the trial court adequately investigated defendant\u2019s allegations of ineffective assistance of counsel.\u201d Without any citation to authority, the State argues that we should determine whether the trial court\u2019s finding was against the manifest weight of the evidence. We need not resolve this issue, because under any standard the trial court erred.\nAs an initial matter, we note that, in his opening brief, defendant maintained that the \u201cfirst indication that he was dissatisfied with his attorney\u2019s performance was his filing of the complaint with the [ARDC]\u201d and that the trial court failed to inquire into the nature of the complaint. Apparently, when defendant\u2019s appellate counsel filed the opening brief, she did not have the benefit of the transcript from the September 15, 2006, proceeding, which (as she now concedes in her reply brief) clearly established that the trial court did initiate an inquiry into the filing of the ARDC complaint. In light of the State\u2019s filing of the September 15, 2006, transcript, defendant withdraws the argument raised in his opening brief concerning the filing of the ARDC complaint.\nRelying on Sanchez, defendant argues that we should consider his verbal allegations of ineffectiveness as a \u201cmotion\u201d sufficient to have raised the issue of attorney ineffectiveness. In Sanchez, the defendant stated at his sentencing hearing that \u201chis attorney failed to investigate his case.\u201d Sanchez, 329 Ill. App. 3d at 66. The defendant further stated that \u201che was framed and that he could have proved that if his attorney had investigated his case.\u201d Sanchez, 329 Ill. App. 3d at 66. The judge sentenced defendant without responding to the defendant\u2019s remarks. On appeal, the First District characterized the defendant\u2019s remarks as a \u201c \u2018motion.\u2019 \u201d Sanchez, 329 Ill. App. 3d at 66. The court remanded for a hearing on the defendant\u2019s ineffective-assistance claim, holding that, under Robinson, \u201ca preliminary inquiry was called for when defendant expressed dissatisfaction with his trial attorney.\u201d Sanchez, 329 Ill. App. 3d at 66.\nHere, as in Sanchez, the trial court never inquired into the factual matters underlying defendant\u2019s allegations made in allocution concerning his attorney\u2019s ineffectiveness. When defendant stated in allocution that \u201c[his] defense did not thoroughly represent [him]\u201d and that \u201cthere were issues of facts that my defense looked [sic] and omitted\u201d and, further, that the court was \u201cdenied the full picture for which you[r] verdict may have changed,\u201d the court should have made further inquiry. Indeed, the State urged the court to make such an inquiry when the parties appeared before the court on defendant\u2019s motion for reconsideration. However, the court seemed to be under the mistaken belief that the State was referring to another issue. In response to the State\u2019s request that the court question defendant concerning \u201chis statement of allocution,\u201d the court stated:\n\u201cWe did, I think, in essence cover some of this before the sentenc ing hearing when Mr. \u2014 the indication was that [defendant\u2019s] father complained of the terms of registration regarding the case. And [defendant] indicated at that time that he didn\u2019t want to get into the matter and wanted [defense counsel] to continue to represent him.\u201d (Emphasis added.)\nCertainly the court could not have addressed before the sentencing hearing the specific claims made by defendant at the sentencing hearing. The matters addressed by the court prior to the sentencing hearing stemmed from defendant\u2019s filing of the ARDC complaint. Defendant did not make anyone aware of the contents of the complaint, and, in response to the court\u2019s questioning at the September 15, 2006, hearing about his desire to go forward with defense counsel\u2019s representation, defendant responded that his attorney should \u201cfulfill his obligation.\u201d There is nothing in the record to show that the ARDC filing involved the same ineffectiveness claims later raised by defendant at the sentencing hearing.\nThe issue concerning the filing of the ARDC complaint and the issue of the allegations of ineffectiveness defendant made in allocution are distinct, and there is no indication in the record that the court ever conducted an adequate inquiry into the latter. In its brief, the State claims that \u201cdefendant was asked specifically, and on more than one occasion, to specify any problems he might have had with his attorney, but he refused to do so.\u201d However, in support, the State cites to portions of the transcript from the September 15 and September 18, 2006, hearings, where the court questioned defendant concerning the ARDC complaint. This does not support the State\u2019s claim that the court conducted an adequate inquiry into defendant\u2019s ineffectiveness claims, as the cited inquiries took place before defendant raised his claims.\nHere, as in Sanchez, the court never considered defendant\u2019s claims of ineffectiveness. Defendant\u2019s claims of ineffectiveness may or may not have merit, but the court must examine their factual basis. Accordingly, based on the foregoing, we remand for that inquiry and for further appropriate proceedings.\nRemanded.\nO\u2019MALLEY and JORGENSEN, JJ., concur.", "type": "majority", "author": "JUSTICE SCHOSTOK" } ], "attorneys": [ "Thomas A. Lilien and Sherry R. Silvern, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Joseph E. Birkett, State\u2019s Attorney, of Wheaton (Lisa Anne Hoffman, Assistant State\u2019s Attorney, and Lawrence M. Bauer and Joan M. Kripke, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIC M. PENCE, Defendant-Appellant.\nSecond District\nNo. 2 \u2014 06\u20140994\nOpinion filed January 30, 2009.\nThomas A. Lilien and Sherry R. Silvern, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nJoseph E. Birkett, State\u2019s Attorney, of Wheaton (Lisa Anne Hoffman, Assistant State\u2019s Attorney, and Lawrence M. Bauer and Joan M. Kripke, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0989-01", "first_page_order": 1005, "last_page_order": 1012 }