People v. Krankel

• Decision Date: 29 March 1985
• Docket Number: No. 4-84-0577,4-84-0577
• Citation: 131 Ill.App.3d 887,476 N.E.2d 777,87 Ill.Dec. 75
• Parties: , 87 Ill.Dec. 75 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John A. KRANKEL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 777

476 N.E.2d 777

131 Ill.App.3d 887, 87 Ill.Dec. 75

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John A. KRANKEL, Defendant-Appellant.

No. 4-84-0577.

Appellate Court of Illinois Fourth District.

March 29, 1985.

Charles G. Reynard, Bloomington, for defendant-appellant.

Ronald C. Dozier, State's Atty., Bloomington, Robert J. Biderman, Deputy Director, State's Attys. Appellate Service Com'n, Gwendolyn Klingler, Staff Atty., Springfield, for plaintiff-appellee.

TRAPP, Justice:

On March 1, 1982, a jury convicted defendant, John Krankel, of burglary. The court sentenced him to 14 years' imprisonment consecutive to two concurrent 5-year sentences which he was then serving. (Ill.Rev.Stat.1979, ch. 38, par. 19-1.) This is defendant's second appeal. On his first appeal he argued that (a) he was not proved guilty beyond a reasonable doubt; (b) he was denied effective assistance of counsel; (c) the trial court erred in failing to appoint counsel other than defendant's appointed counsel to argue his pro se motion alleging ineffective assistance of counsel; and (d) the trial court erred in sentencing.

On April 11, 1983, this court reversed and remanded for a new trial. We held that defendant was denied effective assistance of counsel when his attorney failed to investigate defendant's alibi and interview a witness. (People v. Krankel (1983), 113 Ill.App.3d 992, 997, 69 Ill.Dec. 692, 696, 447 N.E.2d 1379, 1383.) The dissent felt the record did not support an ineffective assistance of counsel finding. (113 Ill.App.3d 992, 997-99, 69 Ill.Dec. 692, 696-97, 447 N.E.2d 1379, 1383-84.) We did not address defendant's other issues.

The supreme court granted the State's petition for leave to appeal. (87 Ill.2d R. 315(a).) On May 25, 1984, the supreme court vacated the appellate court's decision and remanded with directions. It directed the trial court to appoint new counsel for defendant on his pro se allegation of ineffective assistance of counsel. The court stated:

"If, after the hearing, the judge finds that the defendant did not in fact receive effective assistance of counsel based upon counsel's alleged failure to present a valid alibi defense, then he shall order a new trial. If, however, he determines that the defendant received the effective assistance of counsel, he shall deny a new trial and leave standing defendant's conviction and sentence for burglary. If the circuit court denies defendant a new trial, defendant can still appeal to the appellate court based on his assertion of ineffective assistance of counsel or the other three issues which were raised in the appellate court and in this court but were not addressed." 102 Ill.2d 181, 189, 80 Ill.Dec. 62, 66, 464 N.E.2d 1045, 1049.

On April 4, 1984, defendant filed a petition for post-conviction relief. In the petition, filed by new counsel, defendant alleged his trial counsel was ineffective, his appellate counsel was ineffective, and his sentence was excessive in light of the reversal of a prior conviction, which had been considered in sentencing.

On May 1 and 8, 1984, a hearing was held on defendant's petition for post-conviction relief. On June 28, 1984, a hearing was held in accordance with the supreme court's mandate. The trial court denied defendant's motion for a new trial based upon ineffective assistance of counsel and dismissed his petition for post-conviction relief.

Defendant appeals, raising the issues brought in his original appeal. He also argues the dismissal of his post-conviction petition was improper.

We affirm.

The facts relating to defendant's original trial are succinctly set out in both the appellate and supreme court decisions. They are repeated here only as necessary for an understanding of the issues involved.

During the hearing on defendant's petition for post-conviction relief and pursuant to the supreme court's mandate, defendant stated that on July 30, 1980, from approximately 6:30 to 11:30 p.m., his van had been mired in the mud along the Illinois River near Pekin. The burglary occurred during this time. Defendant talked with a police officer who called a tow truck for him. A tow truck, driven by the owner of the company, pulled defendant's vehicle from the mud.

While he was under arrest, defendant called and talked to the truck operator and his wife. However, defendant did not find out their names or whether there were any records of the incident. Defendant stated the owner remembered the incident and that he told the owner defense counsel would contact him soon. Defendant told his attorney of the incident seven months prior to trial. Defendant remembered giving defense counsel the phone number or name of the company.

Defendant further testified that he corresponded with his appellate counsel about raising the marital privilege issue. Appellate counsel responded that he felt the issue was meritless.

Michael O'Rourke, defendant's trial counsel, testified that defendant told him of the alibi, asked him to contact the towing company, and gave him either the phone number or name of the company. O'Rourke talked to the owner's wife who told him no records were kept establishing the dates and times of towing. She remembered talking to defendant. O'Rourke was unable to contact her husband and could not remember how many times he called the towing company. O'Rourke further testified that he contacted the police department to see if they had any record of the incident. The police informed him that any oral record would have been erased. O'Rourke did not subpoena anyone or individually talk to the police to determine if anyone remembered the incident.

On July 13, 1984, the trial court denied defendant's motion for a new trial based upon the ineffective assistance of counsel and his petition for post-conviction relief.

Initially, defendant argues that he was not proved guilty beyond a reasonable doubt because the only evidence connecting him with the offense was the uncorroborated testimony of his ex-wife, accomplice, Kelly Carr. Carr's testimony was the key element of the State's case. Defendant argues Carr's statement lacked absolute conviction of truth because she initially denied knowing where the victim's credit card came from, received deferred prosecution on a related forgery charge, and was in the midst of divorcing defendant, from which animosity toward him may be assumed. The State responds that these matters were placed before the jury and are questions of weight.

Uncorroborated accomplice testimony is a sufficient ground upon which the trier of fact may base a conviction. However, such testimony should be regarded with skepticism because the accomplice may have been promised leniency or harbor ill will toward the accused. The weaknesses of accomplice testimony are questions of the weight of the evidence, not its admissibility. (People v. Wilson (1977), 66 Ill.2d 346, 349, 5 Ill.Dec. 820, 821, 362 N.E.2d 291, 292.) Carr testified that the divorce was not the basis of her talking to the police. She also stated that entry into the deferred prosecution program designed for first offender was not in exchange for her testimony. Even if this were not so, these matters would affect the weight, not the admissibility of her testimony. The credibility of accomplice testimony is a jury question. (People v. Sangster (1981), 95 Ill.App.3d 357, 50 Ill.Dec. 864, 420 N.E.2d 181, rev'd on other grounds (1982), 91 Ill.2d 260, 62 Ill.Dec. 937, 437 N.E.2d 625; People v. White (1984), 122 Ill.App.3d 24, 77 Ill.Dec. 498, 460 N.E.2d 802.) The jury was aware of the factors affecting Carr's credibility. The evidence is sufficient to sustain the conviction.

Defendant next argues as an independent appeal issue and in connection with his petition for post-conviction relief that his counsel's failure to adequately investigate his alibi defense denied him effective assistance of counsel. The State responds that defendant received effective assistance. Trial counsel's decisions were strategy matters.

In order to establish an ineffective assistance of counsel claim, defendant must show that his counsel was actually incompetent in the performance of his trial duties and that absent his counsel's errors, the trial's result would probably have been different. (Strickland v. Washington (1984), --- U.S. ----, ----, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698; People v. Barnard (1984), 104 Ill.2d 218, 236-38, 83 Ill.Dec. 585, 592-93, 470 N.E.2d 1005, 1012-13.) The standard is the same for appointed and privately retained counsel. People v. Royse (1983), 99 Ill.2d 163, 75 Ill.Dec. 658, 457 N.E.2d 1217.

Decisions on whether to call witnesses are usually matters of strategy. Errors in strategy do not constitute ineffective assistance of counsel. (Strickland.) However, failure to interview witnesses may indicate actual incompetency especially where their testimony may be exonerating. (People v. Greer (1980), 79 Ill.2d 103, 37 Ill.Dec. 313, 402 N.E.2d 203; People v. Witherspoon (1973), 55 Ill.2d 18, 302 N.E.2d 3; People v. Corder (1982), 103 Ill.App.3d 434, 59 Ill.Dec. 200, 431 N.E.2d 701.) Failure to investigate a defense may also indicate actual incompetence. (People v. Howard (1979), 74 Ill.App.3d 138, 30 Ill.Dec. 120, 392 N.E.2d 775.) However, conjecture may not serve as the basis of an ineffective assistance of counsel claim. Greer; People v. Lewis (1981), 97 Ill.App.3d 982, 53 Ill.Dec. 353, 423 N.E.2d 1157.

O'Rourke indicated that he investigated the defense but could not substantiate the date and time during which defendant's vehicle was mired in the mud. The date and time were critical to defendant's alibi. In addition, O'Rourke checked with the police in an effort to substantiate the alibi. Defendant did not present any witnesses or support his alibi claim.

In People v. Jackson (1985), 131 Ill.App.3d 128, 85 Ill.Dec. 738, 474 N.E.2d 466, defendant was convicted of burglary. In a letter to the court, defendant...