People v. Remsik-Miller

• Citation: 966 N.E.2d 1069
• Decision Date: 08 March 2012
• Docket Number: No. 2–10–0921.,2–10–0921.
• Parties: The PEOPLE of The State of Illinois, Plaintiff–Appellee, v. Sherrianne REMSIK–MILLER, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

966 N.E.2d 1069

The PEOPLE of The State of Illinois, Plaintiff–Appellee,
v.
Sherrianne REMSIK–MILLER, Defendant–Appellant.

No. 2–10–0921.

Appellate Court of Illinois, Second District.

March 8, 2012.

966 N.E.2d 1071

Thomas A. Lilien, Deputy Defender, Kathleen Weck, Office of the State Appellate Defender, Elgin, for Sherrianne Remsik–Miller.

Joseph H. McMahon, State's Attorney, St. Charles (Lawrence M. Bauer, Deputy Director, Edward R. Psenicka, State's Attorneys Appellate Prosecutor, 0f counsel), for the People.

Justice BURKE delivered the judgment of the court, with opinion:

¶ 1 Following a bench trial, defendant, Sherrianne Remsik–Miller, was convicted of solicitation of murder for hire ( 720 ILCS 5/8–1.2(a) (West 2008)) and sentenced to 22 years in prison. Following the denial of her pro se motion for reconsideration of her sentence, defendant timely appealed. Defendant argues that the court erred in not inquiring into her pro se claim that her trial counsel was ineffective (see People v. Krankel, 102 Ill.2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984) ). The issue is whether defendant's comment at the hearing on her motion—that defense counsel did not represent her "to his fullest ability during [her] trial"—amounted to an allegation of ineffective assistance such that it triggered the court's duty to inquire. For the reasons that follow, we remand for the limited purpose of allowing the trial court to conduct the necessary preliminary examination as to the factual basis of defendant's allegation.

¶ 2 I. BACKGROUND

¶ 3 Defendant was charged with solicitation of murder for hire ( 720 ILCS 5/8–1.2(a) (West 2008)) and solicitation of murder ( 720 ILCS 5/8–1.1(a) (West 2008)). Following a bench trial, the trial court found defendant guilty of solicitation of murder for hire and set the matter for sentencing.

¶ 4 Defense counsel and defendant each filed a posttrial motion. Defense counsel's motion asked for a judgment of not guilty or, in the alternative, a new trial. The trial court denied the motion. Defendant's pro se motion asked for a "new trial based on new evidence and/or witnesses not known/available for trial of June 7, 2010." Although defense counsel did not adopt defendant's pro se motion, he asked the trial court to consider it. Thereafter, the following colloquy took place:

"THE DEFENDANT: Your Honor, at the trial you said my intent was very clear by the tapes. And there are witnesses that are—can be available to show that that was not my intent. Other people that I had talked to being angry, just talking to and venting, people who knew me for more than three months. I would like the opportunity to at least have them speak before—

THE COURT: What would you have them testify to?

THE DEFENDANT: That I was angry. They knew the situation between my husband and myself. And that I was angry. And that I never would have gone through with anything.

THE COURT: They couldn't testify to that. They could testify—you could bring in 50 people, all of whom would say I know [defendant], I know she was angry at her husband.

They could not then go on to say what was going on in your mind, that's inadmissible evidence.

966 N.E.2d 1072

THE DEFENDANT: They could talk about things we had talked about, my friends and I.

THE COURT: No, that would be inadmissible hearsay. I'm just telling you the law.

THE DEFENDANT: I'm just saying I—okay.

[DEFENSE COUNSEL]: What you're saying is you didn't intend.

THE DEFENDANT: I didn't intend, correct.

[DEFENSE COUNSEL]: The Court knows that's our position. He's aware of it.

THE COURT: I've read your letters in allocution, I'm very familiar with what your position is. So, that motion will be denied as well.

[ASSISTANT STATE'S ATTORNEY]: Your Honor, we would ask that the defendant, if the Court wishes to inquire, list of [sic ] people that she would have called, notwithstanding the Court's ruling. There may be something out there, but we would ask that it be made of record.

THE DEFENDANT: Mary Ellen Rea. Steven Kampau. Cindy Knotts. Mary Bublitz. That's all—that's off the top of my head. I could sit down and come up with a few more.

[DEFENSE COUNSEL]: These are people who would testify that you were angry at your husband?

THE DEFENDANT: Mary Ellen Rea was my therapist, yes.

[DEFENSE COUNSEL]: I think the Court probably is aware of that.

THE COURT: She testified—the evidence came out that she was.

Is the State ready to proceed to sentencing?"

The matter proceeded to a sentencing hearing, after which the court sentenced defendant to 22 years in prison.

¶ 5 Thereafter, defendant filed a pro se motion for reconsideration of her sentence. Defense counsel did not file a postsentencing motion. A hearing took place on September 3, 2010, at which defendant appeared pro se. Defendant did not present oral argument in support of her motion. After the State argued as to why the motion should be denied, the court asked defendant if she wished to reply. The following colloquy took place:

"[THE DEFENDANT]: Yes, sir, I do.

First, I want to make sure that [defense counsel] is no longer listed as my attorney. I don't believe he did represent me to his fullest ability during my trial.

THE COURT: Okay. That's not an issue before this court today. That would be an issue for the appellate court.

[THE DEFENDANT]: Okay."

After defendant replied to the State's arguments, the court denied the motion.

¶ 6 Defendant timely appealed.

¶ 7 II. ANALYSIS

¶ 8 Defendant argues that, "[b]ecause the trial court rejected defendant's allegation that trial counsel was ineffective without inquiring into the factual basis for the claim, this case should be remanded for a proper inquiry." According to defendant, the comment that she made at the hearing on her pro se motion for reconsideration of her sentence—that she did not believe that defense counsel represented her "to his fullest ability during [her] trial"—was sufficient to raise a claim of ineffectiveness. The State first responds that the trial court properly inquired into and rejected

966 N.E.2d 1073

defendant's claim. According to the State, defendant's statement at the hearing on her pro se motion for reconsideration of her sentence related back to defendant's original argument (raised at the hearing on the posttrial motions) that certain witnesses should have been presented at trial, which the court properly addressed. In the alternative, the State maintains that the comment at the hearing on her pro se motion for reconsideration of her sentence was "too vague and conclusory" to warrant further investigation.

¶ 9 When a defendant brings a pro se posttrial 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. Krankel, 102 Ill.2d at 187–89, 80 Ill.Dec. 62, 464 N.E.2d 1045; see People v. Taylor, 237 Ill.2d 68, 75, 340 Ill.Dec. 161, 927 N.E.2d 1172 (2010) ; People v. Pence, 387 Ill.App.3d 989, 994, 327 Ill.Dec. 409, 902 N.E.2d 164 (2009). New counsel is not automatically required merely because the defendant presents a pro se posttrial claim that his counsel was ineffective. People v. Moore, 207 Ill.2d 68, 77, 278 Ill.Dec. 36, 797 N.E.2d 631 (2003)....