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People v. Serio
State: Illinois
Court: 2nd District Appellate
Docket No: 2-03-0814 Rel
Case Date: 06/03/2005

No. 2--03--0814
IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
  )  
               Plaintiff-Appellee, )  
  )  
v. ) No. 02--CF--2182
  )  
RAYMOND SERIO, ) Honorable
  ) James K. Booras,
              Defendant-Appellant. ) Judge, Presiding.

JUSTICE BYRNE delivered the opinion of the court:

Following a jury trial, defendant, Raymond Serio, was convicted of first-degree murder (720ILCS 5/9--1 (West 2002)) and sentenced to 50 years' imprisonment. Defendant appeals, arguing thatthe trial court erroneously (1) denied his motion to suppress his confession because the policeallegedly violated his fourth amendment rights by stopping a taxi in which he was riding and detaininghim for 14 hours at the police station and (2) failed to dismiss his first notice of appeal and thenconsider his posttrial motion alleging ineffective assistance of counsel. Defendant contends that heis entitled to a new hearing in the trial court to prove that the allegedly illegal detention requiressuppression of the confession. Defendant further argues that he is entitled to further considerationof his posttrial claim of ineffective assistance of counsel. We conclude that the trial court did notabuse its discretion in admitting defendant's confession but that a remand to the trial court for theconsideration of his ineffective assistance claim is necessary. Therefore, we remand the cause forproceedings consistent with this disposition.

FACTS

On January 6, 2002, Richard Neubauer's body was discovered in his mother's car, which wasparked in Wisconsin at the front gate of the Bristol Renaissance Faire near the Lake County, Illinois,border. Neubauer had suffered three gunshot wounds to the head. On April 4, 2002, the policestopped defendant, transported him to the police station for an interview, and released him later thatday. Defendant was arrested two days later and subsequently charged with first-degree murder, basedon the theory that he had ordered his friend and codefendant, Ronald Ruhl, to shoot Neubauer.

On April 23, 2002, defendant filed his first of two motions to suppress the incriminatingstatement he made to the police on April 4. The first motion asserted that defendant neither waivedhis rights under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), normade his statement voluntarily.

At the hearing on the first motion to suppress, defendant testified that he and Amanda Barbarostayed at the Best Western hotel in Antioch on April 3, 2002. Defendant had allegedly ingestedThorazine to treat his symptoms of withdrawal from heroin. At approximately 3:30 a.m. on April 4,2002, defendant and Barbaro summoned a taxi and left the hotel to purchase heroin because they feltill. After they drove about one-half mile from the hotel, the taxi was stopped by the police, whodirected defendant to exit the taxi and walk backwards toward them. At 3:40 a.m., defendant wastaken to the Lake County sheriff's office, where he was searched and placed in an interview room. Defendant asked a deputy why he had been taken to the station, and the deputy responded thatsomeone would talk to defendant about the situation. After sitting in the interview room for threeto four hours, defendant knocked on the door to summon a deputy and again asked why he wasdetained. The deputy replied that he did not know. Defendant was later taken to a different interviewroom where Lake County Deputy Sheriff Timothy Jonites and Detective Scott Stanek of the KenoshaCounty sheriff's department informed defendant that two people had identified him as Neubauer'skiller. Defendant stated that he wished to speak to an attorney, and the detectives left the room.

Defendant further testified that he heard Barbaro vomiting and calling him from an adjacentinterview room. Barbaro said that she was sick and wished to leave, and defendant wanted to helpher. The detectives moved Barbaro, and defendant told them that he wished to see her. Thedetectives then told defendant, "[w]ell, if you help us, we can help you." Another officer entered theinterview room and showed defendant a pair of his blood-splattered boots that had been seized. Deputy Jonites told defendant that he could receive the death penalty, and defendant became scaredand confused. Defendant agreed to make a statement, and at that point, defendant had been at thestation for 12 hours. As a result of the conversation, defendant believed that, in exchange for hisstatement, the detectives would allow him to leave that evening and the State would not seek thedeath penalty if defendant were ultimately charged.

On cross-examination, defendant admitted that he had been previously convicted of burglary,deceptive practices, and unlawful use of weapons. Defendant had begun snorting heroinapproximately one week after Neubauer's death. Defendant ingested Thorazine on April 4, 2002, to"numb" himself and curb his heroin addiction. He obtained the Thorazine from his mother, and nodoctor had prescribed it for him. Defendant estimated that he ingested 10 to 12 Thorazine pills from7:30 p.m. on April 3 until 3:30 a.m. on April 4, when the police stopped his taxi. Although defendantequivocated, he generally asserted that the Thorazine made him feel drowsy and slurred his speech. Defendant conceded that he understood and initialed each of the Miranda warnings he received beforemaking his statement. The officers' mention of the death penalty "definitely played a factor" indefendant agreeing to provide a statement, and he believed that he only would be asked to testify asa witness. However, defendant conceded that, at the conclusion of his videotaped statement, he saidthat the police had not made any threats or promises.

Deputy Jonites testified that, as part of his investigation of Neubauer's death, he met withdefendant at the Lake County sheriff's office on April 4, 2002. Defendant was placed in an interviewroom, but Jonites opined that defendant was not in custody at that time. While awaiting theinterview, defendant requested and received restroom breaks and cigarettes. Barbaro, DeniseSchubat, and codefendant Ruhl were each placed in interview rooms adjacent to defendant's room. Jonites and Stanek began interviewing defendant at 1 p.m. Jonites advised defendant of his rightsunder Miranda before asking any questions.

The trial court reviewed the videotape and transcript of defendant's interview. At thebeginning of the interview, the detectives informed defendant that only the prosecutor would decidewhether defendant would be charged with a particular offense, and defendant consented to therecording. Defendant stated that in November 2001, he worked at his mother's bar with Schubat,who was in a volatile relationship with Neubauer, the deceased. Neubauer and Schubat had a youngdaughter and the couple was attempting to reconcile. However, in November 2001, defendant andSchubat began a romantic relationship. Three weeks later, Schubat told defendant that Neubauerwould always be a part of her life unless "he was gone, if he was dead." Defendant initially ignoredthe topic, but after a few discussions, defendant told Schubat, "yeah, I could probably do likesomething. *** I'll even set it up. Don't worry about it, I'll end it. I'll take care of it for ya'." Defendant told Schubat that Ruhl would kill Neubauer, but Schubat was concerned that Ruhl was"not man enough" to follow through with the murder.

On the night of the shooting, defendant and Ruhl were speaking on their mobile phones. Defendant and Schubat were inside the bar and Ruhl was outside in the parking lot, where Neubauerwas in his car waiting for Schubat. Defendant told the detectives that "I was being an idiot and I wastelling [Ruhl] to go ahead and *** do it. Just do it. Get it over with. Do it." Schubat overheardboth sides of the conversation because defendant and Ruhl were using the direct connect feature oftheir Nextel phones.

Ruhl asked defendant whether he really wanted Neubauer killed, and defendant responded,"I don't wanna' hear nuttin'. All I wanna' hear is [sic] gunshots." Defendant did not believe that Ruhlwould actually kill Neubauer, and defendant was shocked when he heard a gunshot outside. Defendant then looked out the window and saw Ruhl standing next to the driver's side window ofNeubauer's car. At first glance, Neubauer appeared dead, but defendant saw his jaw quivering. Schubat drove home in her car, and defendant boarded up a broken window in the bar. Ruhl wentto Neubauer's car, rolled Neubauer's body into the passenger seat, and drove the car to the BristolRenaissance Faire in Wisconsin. Defendant followed Ruhl in his own car. Defendant was worriedthat Ruhl would kill him or someone else in his family if he did not cooperate.

Ruhl drove Neubauer's car into a fence, exited the car, and shot Neubauer's body several moretimes while it was still in the passenger seat. Ruhl then entered defendant's car, defendant saw Ruhl'sgun for the first time, and the two drove away. Ruhl, who was wearing latex gloves, removed hissweater and T-shirt and wrapped the gun in the shirt. Ruhl put his sweater back on and tolddefendant to stop the car so he could place the gun under the hood.

Defendant and Ruhl drove to Zion and Waukegan to purchase cocaine, but they could not findanyone from whom to purchase drugs. Defendant and Ruhl bought beer instead, and they werestopped by a member of the Waukegan police department gang unit at approximately 4 a.m. Theofficer searched defendant, Ruhl, and the car but found only an open bottle of tequila in the trunk. The officer poured the tequila out and allowed defendant and Ruhl to drive away. Defendant droveRuhl to the Dupree Hotel in Antioch, and Ruhl took the gun into one of the rooms. Defendant wenthome where he was living with Kristin Koets, his fiancée. At the time of the shooting, Ruhl oweddefendant $2,500 for prior narcotics purchases, and Schubat stood to gain $20,000 from Neubauer'slife insurance policy.

After reviewing the videotaped interview, the trial court denied defendant's first motion inlimine, concluding that the detectives were credible and that defendant's statement was voluntary. The court found that defendant was unaffected by a lack of sleep and the Thorazine he claimed tohave ingested. Moreover, the court rejected defendant's claim that he had requested an attorneybefore the interview, because defendant appeared at ease with the detectives, spoke freely with themduring the interview, and never indicated a desire to speak with an attorney.

On May 20, 2003, defendant filed his second motion to suppress his statement. The secondmotion asserted that the police lacked probable cause to stop the taxi and then detain defendant for14 hours at the police station. Stating that "no additional testimony [was] necessary," defensecounsel argued that, because defendant was seized from the taxi and not free to leave theinterrogation room at the police station, he was in custody and under arrest even though he was laterreleased after providing his statement. Therefore, counsel asserted, the exclusionary rule requiredthe court to suppress defendant's statement because the officers lacked probable cause for the seizure.

The trial court disagreed, denying the second motion in limine. Although portions of thecourt's comments appear inconsistent, a review of the record indicates that the court found thatprobable cause existed to support an arrest on April 4, 2002, but that defendant had not beenarrested.

At trial, the jury viewed defendant's videotaped interview with Detectives Jonites and Stanek. The State introduced the testimony of Schubat, Koets, Jonites, Stanek, and several others whocorroborated the story defendant told during the interview. Stanek further stated that, several weeksbefore he questioned defendant, Stanek gave his business card to Barbaro, the woman who was withdefendant on the night before the interview.

Barbaro testified that she met defendant and began a romantic relationship with him two orthree weeks after Neubauer was murdered. In February 2002, Barbaro conversed with defendantabout his involvement in the killing. Defendant described how he and Ruhl transported Neubauer tothe Bristol Renaissance Faire in Kenosha. Defendant said that he shot Neubauer there because he wasnot yet dead. Defendant also explained that he and Ruhl left Neubauer to be discovered when thefacility reopened in the spring and that defendant hid the gun under the hood of his car. Barbaro didnot immediately notify the police of defendant's statements because she was scared and did notperceive an opportunity to contact the police. During a subsequent conversation, defendant toldBarbaro that he and Ruhl wore gloves while moving Neubauer's body.

On March 27, 2002, after defendant told Barbaro of his involvement in the murder, the policestopped Barbaro for a traffic violation and arrested her on several outstanding warrants. Defendantwas with Barbaro at the time and knew she had been arrested; but when she was alone with theofficers, Barbaro requested to speak with the Lake County sheriff's department. Two days later,Barbaro informed the detectives of defendant's statements and agreed to assist in the investigation. Barbaro was briefly incarcerated; but upon her release, she went with defendant to the Best Westernhotel on April 3, 2002, which was the day before defendant was taken to the police station forquestioning.

The jury found defendant guilty of first-degree murder on an accountability theory and foundhim not guilty of first-degree murder as the principal. The trial court entered judgment on the jury'sverdict on May 30, 2003.

On June 20, 2003, defense counsel moved for a judgment notwithstanding the verdict or anew trial. Counsel filed a first-amended motion on June 25, 2003. On July 2, 2003, the trial courtordered a psychological evaluation of defendant. On July 18, 2003, defense counsel filed a second-amended motion, the trial court heard and denied the motion, the court sentenced defendant to 50years' imprisonment, defense counsel filed his first notice of appeal, and the court appointed theappellate defender to represent defendant. The trial court ruled that the notice of appeal would be"stayed" until defense counsel's postsentencing motion was decided.

On July 21, 2003, the trial court heard and denied defense counsel's motion to reconsider thesentence. Defendant filed a pro se motion alleging ineffective assistance of trial counsel, but the trialcourt declined to hear it, stating that the trial court lacked jurisdiction to do so. Defense counsel fileda second notice of appeal.

ANALYSIS

On appeal, defendant does not challenge the sufficiency of the evidence. Instead, he arguesthat the trial court erroneously denied his second motion in limine to suppress his confession. Defendant further contends that the trial court committed reversible error by failing to dismiss his firstnotice of appeal under Supreme Court Rule 606(b) (188 Ill. 2d R. 606(b)) and address his posttrialclaim of ineffective assistance of counsel. We conclude that the trial court did not err in admittingdefendant's confession at trial but that a remand for the consideration of his claim of ineffectiveassistance of counsel is necessary.

1. Suppression Hearing

Before trial, defendant filed a motion to suppress his inculpatory statement that he made tothe police on April 4, 2002. Defendant claimed that the police lacked probable cause to arrest himand that the statement he made after the arrest should be suppressed as the fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 486, 9 L. Ed. 2d 441, 454, 83 S. Ct. 407, 416 (1963). Following a hearing, the trial court denied the motion, finding that the officers had probable causeto arrest defendant for the charged offense even though they chose not to arrest him at that time. Defendant argues that he was, in fact, under arrest and that there was no probable cause to supportthe arrest. We need not determine whether defendant's seizure on April 4, 2002, qualified as a formalarrest or a Terry stop (see Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)),because we conclude that the information Barbaro provided gave the detectives probable cause toarrest defendant.

Generally, a motion to suppress evidence presents mixed questions of law and fact; the trialcourt weighs the evidence and determines the facts surrounding the incident in question, after whichit determines whether the facts constitute a violation of the defendant's rights. People v. Thomas, 198Ill. 2d 103, 108 (2001). While the reviewing court defers to the trial court's factual findings, the trialcourt's ultimate ruling on a defendant's motion to suppress is reviewed de novo. Thomas, 198 Ill. 2dat 108. In considering a ruling on a motion to suppress, a reviewing court may consider evidencepresented at trial as well as the evidence that was presented at the suppression hearing. People v.Watson, 315 Ill. App. 3d 866, 876 (2000). Therefore, we may consider Barbaro's trial testimony indetermining whether there was probable cause to arrest defendant on April 4, 2002.

Probable cause to arrest exists where the totality of the circumstances known to the policeofficers at the time of arrest are sufficient to lead a reasonably prudent person to believe that thesuspect has committed a crime. People v. Patterson, 282 Ill. App. 3d 219, 227 (1996). A policeofficer's knowledge of probable cause may be based on an informant's tip and, if the facts suppliedin such a tip are essential to a finding of probable cause, the tip must be reliable. One indicium ofreliability of information exists when the facts learned through police investigation independentlyverify a substantial part of the informant's tip. The reliability of the informant is another factor to beconsidered. Patterson, 282 Ill. App. 3d at 227.

During cross-examination, Barbaro admitted to several convictions and periodic incarceration. Barbaro had been convicted of drug conspiracy, forgery, obstruction of justice, and deceptivepractices, and this criminal history undermines her credibility as an informant. However, her detailedknowledge of the crime and her corroboration of the information already possessed by theinvestigators rendered Barbaro reliable. Under these circumstances, we conclude that probable causeexisted to arrest defendant on April 4, 2002, even though the detectives temporarily released him afterhe incriminated himself.

2. Postjudgment Motions

We next consider defendant's argument that the trial court erroneously failed to strike trialcounsel's first notice of appeal and consider defendant's pro se claim of ineffective assistance ofcounsel. Defendant entitled his pro se motion "Motion for Ineffective Assistance of Counsel" andalleged that trial counsel (1) elicited damaging testimony from two of the State's expert witnesses;(2) failed to request a fitness hearing and investigate defendant's mental condition; (3) failed to objectto several unspecified remarks during the State's closing argument; (4) failed to object to theinvolvement of Assistant State's Attorney George Pappas, who was also prosecuting cases againstkey witnesses; (5) had a conflict of interest because he had worked in the State's Attorney's office inthe past; (6) failed to investigate defendant's claim that the State's Attorney's office violated Rule 3.6of the Rules of Professional Conduct (134 Ill. 2d R. 3.6); (7) failed to object to defendant's absenceduring the questioning of a prospective juror outside the courtroom; (8) failed to tender second-degree murder instructions; (9) failed to obtain medical records to prove that defendant is allergic tococaine; (10) failed to obtain defendant's telephone records from December 2001 through January2002; (11) failed to impeach a State witness with an eavesdropping recording she created indefendant's presence; (12) failed to provide defendant with the eavesdropping recording or atranscript thereof; (13) failed to put on a "realistic" defense; (14) filed motions to suppress that wereinconsistent with a trial strategy that acknowledged the statement as true; (15) failed to retain expertson firearms and Thorazine; and (16) failed to investigate defendant's unspecified alibi or call unnamedalibi witnesses. Defendant argues that he is entitled to a remand to the trial court for a considerationof each of these allegations.

When a defendant is represented by counsel, he generally has no authority to file pro semotions, and the court should not consider them. People v. Rucker, 346 Ill. App. 3d 873, 882(2003). An accused has the right either to have counsel represent him or to represent himself; buta defendant has no right to both self-representation and the assistance of counsel. Rucker, 346 Ill.App. 3d at 882. Therefore, a defendant is not entitled to " 'hybrid representation, whereby he wouldreceive the services of counsel and still be permitted to file pro se motions.' " Rucker, 346 Ill. App.3d at 882, quoting People v. Handy, 278 Ill. App. 3d 829, 836 (1996). There is an exception to thisrule: represented defendants are allowed to raise pro se claims of ineffective assistance of counsel ifthey include supporting facts and specific claims. Rucker, 346 Ill. App. 3d at 883 (the defendant'sbald allegation that counsel rendered inadequate representation was insufficient to meet theexception); see also People v. White, 322 Ill. App. 3d 982, 987 (2001) ("it contravenes human natureto expect counsel to adequately argue his own ineffectiveness" in a posttrial motion). Here, weconclude that defendant's claim of ineffective assistance of counsel is sufficiently detailed so as tomeet the exception.

We next consider whether defendant's pro se motion was untimely as the State argues. Supreme Court Rule 606 (188 Ill. 2d R. 606) governs the perfection of appeals in criminal cases notinvolving guilty pleas. Rule 606(b) requires a notice of appeal to be filed with the clerk of the circuitcourt within 30 days after entry of the judgment appealed from or within 30 days after entry of anorder disposing of a timely postjudgment motion. 188 Ill. 2d R. 606(b). Rule 606(b) further providesthat, where a defendant's attorney or a defendant not represented by counsel files a timely motiondirected against the judgment, a notice of appeal filed before disposition of that motion has no effectand shall be stricken by the trial court, regardless of whether the postjudgment motion was filedbefore or after the notice of appeal was filed. 188 Ill. 2d R. 606(b); Rucker, 346 Ill. App. 3d at 881-82.

The State concedes that Rule 606(b) required the trial court to strike the first notice of appeal,which was filed on July 18, 2003, because defense counsel filed a timely motion to reconsider thesentence three days later. The parties further correctly agree that defense counsel's second notice ofappeal, which was filed on July 21, 2003, vested this court with jurisdiction over the appeal.

However, the State insists that defendant's pro se motion alleging ineffective assistance ofcounsel was an untimely successive posttrial motion. The State cites People v. Miraglia, 323 Ill. App.3d 199 (2001), in which this court held, "Rule 606(b) contemplates the filing of only onepostjudgment motion directed against the final judgment--whether it be the conviction or the sentenceor both, but the rule does not authorize successive and repetitious motions raising issues that wereraised earlier or could have been raised earlier and thereby extend the time for appeal." Miraglia, 323Ill. App. 3d at 205.

The State's argument is a red herring because it focuses on the jurisdiction of the appellatecourt rather than the trial court. The trial court had jurisdiction over the cause at the time defendantfiled his pro se motion because the motion was filed within 30 days of the July 21, 2003, denial of themotion to reconsider the sentence, which was the last jurisdictional act by the trial court.

In this case, the trial judge mistakenly believed that the first notice of appeal divested the trialcourt of jurisdiction. We addressed a similar mistaken conclusion in In re Marriage of Agustsson,223 Ill. App. 3d 510 (1992). In Agustsson, the husband filed a postjudgment motion seeking toamend a dissolution judgment pursuant to section 2--1203 of the Code of Civil Procedure (Ill. Rev.Stat. 1989, ch. 110, par. 2--1203 (now 735 ILCS 5/2--1203 (West 2002))). Agustsson, 223 Ill. App.3d at 513. We held that the trial court's denial of the motion did not preclude the husband from filinga subsequent motion to vacate the judgment. Agustsson, 223 Ill. App. 3d at 516. We noted thatsuccessive postjudgment motions are barred because they extend the time for a notice of appeal froma final judgment pursuant to Supreme Court Rule 303 (134 Ill. 2d 303), not because the trial courtlacks jurisdiction to hear such a motion. Agustsson, 223 Ill. App. 3d at 517.

Although the jurisdictional issue in Agustsson was governed by Rule 303 rather than by Rule606(b), we conclude that the logic applies equally here. The trial court has jurisdiction to rule on asuccessive postjudgment motion where the successive motion is filed within 30 days of the finaldisposition of the preceding postjudgment motion. Jurisdiction vests in the appellate court when thetrial court disposes of the successive motion and a notice of appeal is filed within 30 days of the denialof the first motion attacking the judgment.

We disagree with the State's analysis and conclude that Rule 606(b) implicates the effect ofa successive postjudgment motion on appellate jurisdiction. Rule 606(b) does not affect the trialcourt's jurisdiction over successive motions filed within 30 days of the trial court's most recentjurisdictional exercise. Here, the trial court had jurisdiction to consider defendant's pro se motionbecause the motion was filed on the same day that the first postjudgment motion was denied. Wehave jurisdiction to consider the appeal because the trial court disposed of the pro se motion anddefendant filed the second notice of appeal within 30 days of the disposition of the first postjudgmentmotion.

Once a defendant files a timely and sufficiently detailed pro se motion alleging ineffectiveassistance of counsel, the trial court must conduct an adequate inquiry into the factual basis for thedefendant's claim. People v. Moore, 207 Ill. 2d 68, 77-78 (2003). If the defendant's claim is withoutmerit or raises only matters of trial strategy, the court may deny the pro se motion without appointingnew counsel. Moore, 207 Ill. 2d at 78. The supreme court has listed three ways in which a trial courtmay conduct its evaluation: (1) the court may ask trial counsel about the facts and circumstancesrelated to the defendant's allegations; (2) the court may ask the defendant for more specificinformation; or (3) the court may rely on its knowledge of counsel's performance at trial and "theinsufficiency of the defendant's allegations on their face." Moore, 207 Ill. 2d at 78-79.

Where a trial court's inquiry into the defendant's allegations reveals that they are conclusory,misleading, or legally immaterial, and thus do not present a colorable claim of ineffective assistanceof counsel, the court need not conduct further inquiry into the allegations. See People v. Johnson,159 Ill. 2d 97, 128 (1994). Thus, we must decide whether the trial court conducted an adequateinquiry into defendant's pro se allegations of ineffective assistance of counsel. See Johnson, 159 Ill.2d at 125. Where the trial court undertakes no investigation of the defendant's pro se claim ofineffective assistance, a reviewing court must remand the cause to the trial court for that purpose. Moore, 207 Ill. 2d at 79.

In Moore, the supreme court found that the trial court's inquiry into the defendant's pro semotion was inadequate because the trial court did not consider the defendant's pro se motion at all. The motion never was denied; instead, the court simply allowed it into the record, so it could beconsidered later on appeal. Moore, 207 Ill. 2d at 79. This case is factually indistinguishable, as thetrial court placed defendant's pro se motion into the record but declined to hear it after incorrectlyconcluding that jurisdiction had vested in the appellate court.

The State argues that this case is more like People v. Burks, 343 Ill. App. 3d 765 (2003), anAppellate Court, First District, case that postdates Moore but does not cite it. In Burks, thedefendant claimed that the trial court failed to inquire into three pro se allegations of ineffectiveassistance of counsel. However, the appellate court noted that the defendant never filed a writtenmotion and made only unsupported oral assertions at the sentencing hearing, which was held nearlyfour months after he was convicted. Burks, 343 Ill. App. 3d at 775. The appellate court affirmedthe defendant's conviction but not before analyzing each of his three allegations and holding each tobe without merit. Burks, 343 Ill. App. 3d at 775-77.

The State's reliance upon Burks is misplaced. In this case, defendant filed a written motionsetting forth several alternative theories of ineffective assistance of counsel. The State correctly notesthat judgment was entered on the verdict on May 30, 2003, but defendant did not file his pro semotion until July 21, 2003. The State repeatedly emphasizes defendant's delay in filing his motionas grounds for denying him a hearing on it. However, the transcripts of the hearings during thatperiod illustrate that trial counsel failed to follow through on defendant's desire for a transcript of thetrial, which he hoped to use to prepare his pro se motion. Furthermore, it appears that the courtrefused to order the transcript unless defendant set forth his allegations with particularity. The Stateasserts that defendant should be denied a hearing on his numerous allegations of ineffective assistanceof counsel because he did not file a written request for the transcript himself. However, under thesefacts, we conclude that it would be unfair to declare defendant's claim of ineffective assistanceuntimely simply because his counsel, already alleged to have been ineffective, failed to request a trialtranscript.

Accordingly, we conclude that the trial court erred in failing to conduct the necessarypreliminary examination as to the factual basis of defendant's allegations against his appointed trialcounsel. " '[W]e emphasize that we are not remanding for a full evidentiary hearing and appointmentof counsel on the issue of trial counsel's incompetence.' " Moore, 207 Ill. 2d at 81, quoting Peoplev. Parsons, 222 Ill. App. 3d 823, 831 (1991). Instead, we remand the cause for the limited purposeof allowing the trial court to conduct the required preliminary investigation. If the court determinesthat the claim of ineffectiveness is spurious or pertains only to trial strategy, the court may deny themotion and leave defendant's conviction and sentence in place. See Moore, 207 Ill. 2d at 81. If thetrial court denies the motion, defendant may still appeal his assertion of ineffective assistance ofcounsel along with his other assignments of error. See Moore, 207 Ill. 2d at 81-82.

For the preceding reasons, the cause is remanded to the circuit court of Lake County forproceedings consistent with this disposition.

Remanded with directions.

McLAREN and HUTCHINSON, JJ., concur.

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