SECOND DIVISION
March 29, 2002

JUSTICE CAHILL delivered the opinion of the court:

Defendant appeals the denial of his posttrial motion for a new trial. He argues that thetrial court ignored an oral motion made by defendant claiming ineffective assistance of trialcounsel. No issues are raised attacking the guilty verdict. We remand with directions to considerthe motion. The court is also directed to consider a record from the Attorney Registration andDisciplinary Commission (ARDC) documenting disciplinary action taken against defendant'strial attorney for conduct, some of which was contemporaneous with the attorney's representationof defendant.

Defendant was charged in June 1996 with first degree murder, attempted first degreemurder and alternative counts of aggravated discharge of a firearm. Defendant appeared in courton June 25, 1996, and entered a not-guilty plea. Defendant was represented by the publicdefender on that date. A March 10, 1997, trial date was set.

Defendant appeared in court on March 10 with a privately retained attorney. The trialwas continued to April 21, 1997. The record shows the case was next called on June 2, 1997. On that date, the State told the court that defendant's private attorney had been suspended frompractice by the ARDC. The court struck defendant's attorney's earlier filed appearance andappointed the public defender. The court noted for the record that the ARDC had suspendeddefendant's attorney from practice and recommended that the attorney be disbarred. The casewas continued to June 24, 1997.

The public defender appeared for defendant on August 5, 1997, and asked thatdefendant's fitness to stand trial be determined. The court ordered that defendant be examinedand continued the case to September 15, 1997.

The next entry in the record shows that the case was called for trial on July 28, 1998. Thepublic defender appeared for defendant. Defendant waived his right to a trial by jury. The Statethen made an opening statement. Before the public defender's opening statement, the court notedthat the charges against defendant subjected him to consecutive sentences. The court askeddefendant if he understood the scope of the potential penalties he faced and further questionedwhether defendant still intended to waive his right to a jury. Defendant said that he wanted a juryafter a brief exchange with the court. The court then struck the jury waiver and the case was setfor trial on August 24, 1998.

On August 24, a private attorney appeared for defendant. The attorney asked for a 60-daycontinuance to prepare for trial. The State agreed to the continuance so long as the case would betried within 60 days. The court said it was reluctant to grant the continuance because of the ageof the case and noted that defendant had been in custody since 1996:

"[The public defender] is ready and ready in a timely manner. So while Iam hesitant to continue this case, [defendant] has had to go through the experienceof having a lawyer that was disbarred, and his case was delayed for that reason.

I want him to be tried [with] an attorney of his choice. I will allow [theattorney] to file his appearance with the understanding I expect this case to go totrial in about 60 days. So the public defender is given leave to withdraw."

The case was then continued to September 14, 1998. The court continued the case to September16 when defendant's attorney was not able to appear on September 14. Defendant's attorneyappeared on September 16 and asked for a two-week status date. The case was then continued byagreement to October 2, 1998.

The record shows that defendant's attorney failed to appear on October 2, 1998. Thecourt noted for the record that there had been some discussion that defendant's attorney was illand was being hospitalized. The case was continued for one week to October 9, to "track[defendant's attorney] down."

Defendant's attorney next appeared on October 30. The case was set for trial forDecember 15 and 16. The case was again continued to February 1, 1999, due to a conflict in thetrial court's schedule.

On February 1, 1999, the court learned that defendant's attorney had been arrested the daybefore on a charge of possession of controlled substances. The court noted that defendant'sattorney also had a contempt matter pending before another judge. Defendant's attorneyexplained that, because of his arrest, he was not prepared to proceed to trial on defendant's case:

"Had I not been picked up yesterday, I had intended on answering ready. Igot picked up yesterday afternoon. Under the circumstances, this is preventing mefrom being ready today."

Defendant's attorney then admitted that he was in the court building to appear on his criminalcharge and that he could not advise the court when he would be able to proceed on defendant'scase until after his bond hearing. The court then addressed defendant:

"THE COURT: [Defendant], do you understand I want to make sure youunderstand what I have been talking about to [your attorney]. Apparently [yourattorney] was arrested and charged with a criminal offense last night. Heinformed me just now it's a possession of controlled substance matter. Do youunderstand that?

***

DEFENDANT: Yes.

THE COURT: All right. He is not in a position to try your case todaybecause of the fact that I assume he stayed in the jail last night and doesn't havehis files with him and has some other court appearances he has to make withregard to himself. Do you have any thoughts about that?

DEFENDANT: I have a couple of thoughts, you know. First you know,when I had my first lawyer that same thing happened with my first lawyer *** Ilost that lawyer.

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You know, my family, you know, man, we ain't got money like that to bepaying for lawyers, you know. I am trying to work on getting my money backfrom [my first lawyer], which I have not gotten.

THE COURT: Well, [your attorney] still represents you unless you don'twant him to. [Your attorney] has indicated to me that he intends to have aconversation with you either today or tomorrow when he has the opportunity toget released from custody. You were just informed of this so I don't expect you tomake a snap decision. What I am going to do is I am going to have to have afurther conservation with you, [defendant], to determine if you still want [yourattorney] to represent you.

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Understanding not just the fact that he was arrested because he certainlyhas not been convicted of anything with regard to that, but the fact that he is undera charge here in Cook County, if that case remains pending, he is in a situationwhere he is in a position where he has to defend himself with regard to criminalcharges and that may take away from his ability to give adequate attention to yourcase. It also may raise some conflictual issues in terms of his relationship with the[S]tate's [A]ttorney's office, in that he [is] being prosecuted by the office in whichhe is trying the case against. So do you understand what I am saying?

DEFENDANT: Yes."

Defendant was also reminded that an attorney could be appointed for him should hedecide he no longer wanted to be represented by his attorney and could not afford another one. The case was then continued to February 3 to allow defendant to speak with his attorney.

Defendant appeared on February 3 and said that he wished to continue with his attorney. Defendant said that he had spoken with his attorney and thought about the implications and haddecided he did not want to change attorneys. Defendant said he understood that his attorney hadbeen charged with a crime and was being prosecuted by the same office prosecuting him. Hedenied that his attorney's situation created a conflict:

"DEFENDANT: I don't think there is going to be no conflict. That's hiscase. That had nothing to do with my case.

THE COURT: You don't think that distracts [from] his ability to representyou?

DEFENDANT: No. I'm innocent. He can't go against me. He can't saynothing against me.

THE COURT: You are confident he will be able to give his loyalty to youand his full attention to you?

DEFENDANT: Yes.

THE COURT: You want to stay with him?

DEFENDANT: Yes.

THE COURT: Even though he is being prosecuted by the State'sAttorney's Office?

DEFENDANT: Yes. I don't think there should be no reason for it."

Defendant's attorney then denied that the criminal charge pending against him created aconflict. He assured the court that he would be able to aggressively represent defendant and didnot believe that the criminal charge would hamper him. The court then continued the case toFebruary 5, to review relevant case law.

On February 5, 1999, defendant's attorney filed a document titled "Defendant-AttorneyAcknowledgment of Defense Counsel's Pending Criminal Matter and Potential LegalRamifications of Said Matter to the Defendant." This document revealed that the attorney hadbeen arrested for possession of a controlled substance on January 31, 1999, and that the case wasset for preliminary hearing on March 25, 1999. The document said that the attorney hadvoluntarily disclosed and discussed the following:

"A) There now exist [sic] a potential conflict of interest by virtue of thefact that I am being prosecuted by the same State's Attorney's Office which isprosecuting the defendant's case. I have explained that it could be argued that Iwould or could compromise the defendant's case in order to seek a benefit fromthe State's Attorney's Office on my case.

B) It could also be argued that my own pending criminal charge willconsume my time and energies to the detriment of the defendant's case.

C) Finally, depending upon the outcome of my pending criminal charge Icould if found guilty have my license to practice law suspended or revoked."

The document then revealed that the attorney had assured defendant that he was not guiltyof the crime charged and that the attorney would not be distracted from his representation ofdefendant. Defendant signed the document and executed the option showing that he intended tokeep his attorney and waive the conflict. The court then questioned defendant at length:

"THE COURT: And when you signed this document under option one aslisted in this document, do you understand that what you're saying is you want[your attorney] to continue to represent you?

DEFENDANT: Yes, sir.

THE COURT: Is that what you want?

DEFENDANT: Yes, sir.

THE COURT: And you are also acknowledging that you understandeverything that is in this document?

DEFENDANT: Yes, sir.

THE COURT: And that you understand all the potential conflict of interestmatters that are raised with regard to [your attorney's] pending criminal charge, doyou understand that?

DEFENDANT: Yes.

THE COURT: He explained it to you?

DEFENDANT: Yes.

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THE COURT: Okay, Well, do you understand, sir, that what could beclaimed is there is a couple of things, okay. As a result of [your attorney's] recentarrest, what could be claimed is that [your attorney] is in a conflict situationbecause he's currently being prosecuted by the same agency that is prosecutingyou. And it could be argued that [your attorney] would have a tendency tocompromise your case or do something that would be to your detriment in order toseek a benefit from the State's Attorney's Office for his own case.

Do you understand that that is something that could be argued and youcould argue that? Do you understand what I said?

DEFENDANT: Yes.

THE COURT: Okay. And do you see that as a problem, sir? I want tomake you understand what I just said because you're kind of squinting at me.

DEFENDANT: Because what I read is he's saying this. He's not going to-you know, go against me on this case. He's going to represent me. Like I said,he's going to represent me.

THE COURT: Let me put it in simpler terms, okay?

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One of the potential conflicts is simply that the fact that [your attorney] iscurrently charged with a crime, in his efforts to defend himself, would consumehis energies and direct his attention away from you in your case towards his owncase, he wouldn't be able to think about your case enough, even enough time todevote to your case. That is one of the potential conflicts. And he's indicatingthat he doesn't believe that to be the case.

The other potential conflict is that the fact that he's being prosecuted by thesame people that are prosecuting you. So for example, I'm just going to put it inthe most basic terms. The potential conflict would be that somewhere down theline you could say or that you might feel that [your attorney] could go to theState's Attorney's Office and say, you know, what I'm going to ***.

Well, I'm not going to do such a good job for [defendant]. So you take iteasy on me, do you understand. *** [H]e might not represent you too aggressivelyor he might not do such a good job for you and [hope] in return for the State'sAttorney's Office, the State's Attorney Office would take it easy on him in hiscase. Do you understand that?

DEFENDANT: Yes."

The record shows that the court continued questioning defendant. Defendant repeatedlysaid that he wanted to continue with his attorney and that he understood what the potentialconflict was and that he did not believe there was a problem:

"THE COURT: Okay, so you're telling me you want him to keeprepresenting you even though he has these pending charges and even though there[is] this potential for conflict that I told you about, right?

DEFENDANT: Right, because I feel, you know, that this case he'll handleand do my case.

THE COURT: And you feel *** that he's going to devote his full energiesto you and you feel he won't do anything to your detriment, is that what you'retelling me?

DEFENDANT: Yes."

The court accepted defendant's signed waiver and set the case for trial.

The case was tried on March 12, 1999. Defendant submitted a second written jurywaiver. The court accepted the waiver. The State then made an opening statement. Defendantwaived opening. The State presented its case against defendant. Defendant cross-examined theState's witnesses and presented two defense witnesses. The court found defendant guilty of allcharges on March 15, 1999. The case was set for sentencing on April 20.

Defendant appeared on April 20 with a new attorney who filed a motion for new trial ondefendant's behalf. The court denied the motion. The court then heard arguments relating tosentencing. Before imposing sentence, the court asked defendant if there was anything hewanted to say. Defendant said that his attorney failed to investigate his case. Defendant said hewas framed and that he could have proved that if his attorney had investigated his case. Thecourt made no response to defendant's remarks. The court then sentenced defendant toconsecutive sentences of 50 years for first degree murder and 25 years for attempted first degreemurder. The appellate defender was appointed to file defendant's appeal.

Defendant first argues on appeal that the trial court erred in failing to consider defendant'spro se oral posttrial remarks alleging ineffective assistance. Appellate counsel characterizesdefendant's posttrial remarks as a "motion." We adopt that characterization. We believe underthe unique circumstances of this case a preliminary inquiry was called for when defendantexpressed dissatisfaction with his trial attorney. People v. Robinson, 157 Ill. 2d 68, 86, 623N.E.2d 352 (1993).

Defendant contends that the written posttrial motion presented by his new attorney at thesentencing hearing was prepared by his trial attorney. The motion did not make ineffectiveassistance allegations. Defendant told the trial court that his trial attorney did not investigate hiscase, did not confer with defendant and failed to interview witnesses. The record shows noacknowledgment of defendant's statements by the trial judge, who then proceeded to sentencedefendant.

A trial court must examine the factual matters underlying a defendant's pro se claim ofineffective assistance of trial counsel. Robinson, 157 Ill. 2d at 86. If an examination reveals theclaim lacks merit, it may then be denied. If the allegations suggest possible neglect of the case,new counsel should be appointed. Robinson, 157 Ill. 2d at 86. See also People v. Nitz, 143 Ill.2d 82, 572 N.E.2d 895 (1991). The trial court should afford a defendant the opportunity tospecify and support his complaints and not "precipitously and prematurely" deny the motion. Robinson, 157 Ill. 2d at 86. Cf. People v. Munson, 171 Ill. 2d 158, 662 N.E.2d 1265 (1996)(ineffective assistance claim properly denied where the record showed the trial court made everyeffort to examine the nature and substance of the defendant's claims but the defendant failed toprovide facts to support his claim). Defendant here was not allowed an opportunity to addresshis claim of ineffective assistance. His motion was not considered, which, we conclude, wascontrary to the requirements set out in Robinson. An inquiry was warranted here, where the trialcourt knew that defendant's attorney faced prosecution from the same office that was prosecutingdefendant. We remand this matter to the trial court for a hearing on defendant's ineffectiveassistance claim.

We now consider a motion taken with the case. After this appeal was filed, defendantfiled a motion to supplement the appellate court record with the record of an ARDC proceedingconducted after defendant's trial. The State objected, arguing that counsel's allegedineffectiveness and defendant's waiver of conflict-free counsel must be decided only on therecord in this case. The State maintains that the ARDC record reveals facts disclosed afterdefendant's criminal trial and should be raised in a postconviction petition. Matters that were notand could not have been raised at trial are generally reserved for postconviction petitions. 725ILCS 5/122-1 (West 2000).

We note and understand the State's objection to consideration of the ARDC record. Therecord of counsel's performance at the trial is ordinarily the only relevant consideration todetermine whether his client received effective assistance. People v. Williams, 93 Ill. 2d 309,325, 444 N.E.2d 136 (1982). But we believe that the unique circumstances present in this caserequire trial court review of the ARDC file for two reasons. First, we have already concludedthat the trial court should have considered defendant's oral posttrial claim of ineffectiveassistance. Robinson, 157 Ill. 2d at 86. Secondly, the ARDC record reveals a heretoforeundisclosed level of addiction and illness dating back to defendant's trial that could havecompromised the attorney's professional abilities. There is no evidence in the record that eitherdefendant or the trial court was aware of this information. Nor can we predict what impact thisinformation might have had on defendant's decision to retain his attorney or the decision of thetrial court to allow defendant to do so in spite of an obvious conflict.

A similar consideration of records extraneous to the trial at issue was conducted in Peoplev. Allen, 220 Ill. App. 3d 772, 580 N.E.2d 1291 (1991), where we considered two defendants'ineffective assistance claims based on the defendants' contention that they had been representedat trial by a disbarred attorney. Allen, 220 Ill. App. 3d at 780. In the course of addressing theissue on the merits, we reviewed the record "as well as public documents of the Illinois SupremeCourt." Allen, 220 Ill. App. 3d at 780.

Consideration of the ARDC record, a public document, is warranted here. A defendantmay not be entitled to perfect representation, but he is entitled to competent representation. People v. West, 187 Ill. 2d 418, 432, 719 N.E.2d 664 (1999). We believe that to fairly evaluatethe effectiveness of defendant's trial counsel, review of the ARDC record is warranted. Defendant's motion to include the ARDC materials in the record is granted and the trial court isdirected to consider these materials on remand, insofar as they relate to the time period ofdefendant's trial.

Last, we consider whether double jeopardy applies should the trial court decide that a newtrial is warranted. Double jeopardy does not preclude retrial of a defendant whose conviction issupported by sufficient evidence but set aside because of errors in process. People v. Olivera,164 Ill. 2d 382, 393, 647 N.E.2d 926 (1995). We note that defendant waived review of thesufficiency of the evidence against him by failing to argue the issue in his brief. Meyers v.Kissner, 149 Ill. 2d 1, 8, 594 N.E.2d 336 (1992) (issues not argued are deemed waived). Waiveraside, we conclude that the evidence here is sufficient to support a conviction for first degreemurder and attempted murder.

Evidence is sufficient when a rational trier of fact could find that the essential elements ofthe offense were proven beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261, 478N.E.2d 267 (1985). A person commits murder if, while committing the acts that cause death: (1)he intends to cause death or great bodily harm, or knows that his acts will cause death; (2) heknows that his acts create a strong possibility of death or great bodily harm; or (3) he isattempting or committing a forcible felony other than second degree murder. 720 ILCS 5/9-1(a)(West 2000). Attemped murder requires the State to prove that a defendant made a substantialstep toward the commission of murder while possessing the intent to kill the victim. People v.Green, 322 Ill. App. 3d 747, 754, 751 N.E.2d 10 (2001).

Jose Velez testified that he saw defendant push the murder victim to the ground and shoothim twice. Velez identified defendant as the shooter at trial. Defendant's girlfriend testified thatdefendant admitted to her that he shot the victim. Concepcion Velez, the attempted murdervictim, testified at trial that defendant shot her. The gunshot passed through her left palm, pasther heart and lung. This evidence is sufficient for a trier of fact to find the elements of murderand attempted murder beyond a reasonable doubt. There is no impediment to a new trial, shouldthe trial court determine on remand that defendant's allegations of ineffective assistance ofcounsel have merit. Our conclusion regarding the sufficiency of the evidence is not a finding ofdefendant's guilt that would be binding on retrial. People v. McDonald, 125 Ill. 2d 182, 202, 530N.E.2d 1351, 1360 (1988).

We note that defendant's consecutive sentences of 50 years for murder and 25 years forattempted murder were not challenged under the Supreme Court's recent pronouncement inApprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Theconstitutionality of consecutive sentences in light of Apprendi was addressed by our supremecourt in People v. Wagener, 196 Ill. 2d 269, 752 N.E.2d 430 (2001).

The Wagener court noted that Apprendi "explicitly disclaimed any holding regardingconsecutive sentencing" and the conclusion that consecutive sentencing triggers Apprendiextends the case beyond its facts. Wagener, 196 Ill. 2d at 284. The court then reasoned that,because Apprendi addresses only sentences for individual crimes and consecutive sentences donot become a single sentence, Apprendi is not implicated. Wagener, 196 Ill. 2d at 286-87.

Defendant here was sentenced to 50 years for murder and 25 years for attempted murder. Each of these sentences was within the statutory range prescribed by statute. See 730 ILCS 5/5-5-3 (West 1998). Apprendi is not implicated and need not be considered on remand.

Cause remanded with directions; motion granted.

GORDON and McBRIDE, JJ., concur.