No. 2--02--1170

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE McLAREN delivered the opinion of the court:

Defendant, Favio Tursios, appeals from the trial court's order denying his motion to withdrawhis guilty plea. We affirm.

Defendant was charged with six criminal offenses arising out of the stabbing death of YensiRodriguez. A conference pursuant to Supreme Court Rule 402 (177 Ill. 2d R. 402) was held duringwhich the trial court stated that it would enter a sentence of 20 to 25 years if defendant pleaded guiltyto one count of first degree murder (720 ILCS 5/9--1 (West 2000)). Defendant asked that he begiven until the following morning "to think about it." The next day, December 11, 2001, he pleadedguilty to one count of first degree murder. Pursuant to the plea negotiations, the State recommendeda sentencing cap of 30 years. Defendant was admonished with the aid of an interpreter, as he wasnot fluent in English. A presentence report was ordered, and the case was continued for sentencing.

The presentence report was not complete on the next court date of February 15, 2002. Defense counsel Theodore Potkonjak informed the court that, during the preparation of the report, defendant told the probation officer that he did not want to cooperate because he was not guilty offirst degree murder. He did not understand the procedures and thought that he had pleaded guiltyto second degree murder. Defendant told Potkonjak that he wished to withdraw his guilty plea. Potkonjak did not think that he and his co-counsel, Scott Wineberg, could go forward withsentencing "because it puts us in the position that we have to ascertain whether or not there's a clearunderstanding of what he had pled guilty to." The court continued the matter for the filing of awritten motion to withdraw the plea.

Counsel did not file a written motion. On the next court date, he informed the court that hehad reviewed some of the transcripts regarding the guilty plea and discussed the plea with defendant,who no longer wished to withdraw the plea. When the court asked defendant, through an interpreter,if he had discussed this with his attorneys, defendant stated, "Yes, I would like to withdraw." Defense counsel then stated that he had "a bonafied [sic] doubt" about defendant's fitness to standtrial and requested a fitness evaluation. Counsel stated that, when he told things to defendant, "itseems to sink in, but it doesn't." Counsel wanted to clarify whether defendant truly could notunderstand the discussions regarding his plea or whether he was involved in "gamesmanship." Counsel also thought that the language barrier had something to do with the problem. The court didnot find sufficient evidence of a bona fide doubt as to fitness and continued the case for preparationof the report and sentencing. The court stated:

"Now it seems to me that every time Mr. Turcios [sic]comes into Court he still can'tmake up his mind as to what he wants s [sic] to do. Yet, when he is in jail speaking with hisattorneys he's satisfied with what he did in court. And then he comes into court, and maybeit's the - you know, when it's happening in the courtroom he can't make up his mind. I didn'tfind that there were any [sic] anything [sic] about the way he was questioned or talked to thathe didn't understand what's happening. It may just be how the words are used, but he's askedquestions. He understands the legal process. He's been able to communicate with hisattorneys, and the only thing that he can't do is make up his mind as to whether or not hewants this motion to be filed to withdraw his plea."

Potkonjak also informed the court that he was leaving his practice before the next court date and thatWineberg would continue defendant's representation.

Before the next court date, Wineberg sent an investigator from his office to speak withdefendant. Defendant told the investigator that his attorneys did nothing for him and did not tell himthat he was pleading guilty to first degree murder. He wanted a sentence of less than 20 years inprison. Wineberg subsequently filed a motion to withdraw as attorney, citing a "total breakdown ofcommunication." Wineberg stated that continued representation of defendant in pursuit of his motionto withdraw his plea would mean that Wineberg would have to allege the ineffectiveness of himselfand Potkonjak, who had "since been bestowed a judicial robe." Further, he would still have torepresent defendant at sentencing if a motion alleging his own ineffectiveness was denied. The trialcourt noted that defendant had never told Wineberg directly of any intent to allege ineffectiveassistance of counsel, nor had defendant informed the court of any such problem. The courtcontinued the case for completion of the presentence report and recommended that Wineberg speakdirectly with defendant and "file whatever needs to be filed."

On the next court date, Wineberg stated that he had reviewed the transcripts of the Rule 402conference and the plea, including the admonishments, and did not believe that a motion to withdrawdefendant's guilty plea would be meritorious. The following colloquy then took place, with aninterpreter present:

"THE COURT: Mr. Tursios, did you go over withdrawing your plea with Mr.Wineberg?

THE DEFENDANT: What? I didn't understand.

THE COURT: Did you talk to Mr. Wineberg about withdrawing or taking back yourplea of guilty?

THE DEFENDANT: Yeah.

THE COURT: And you do not wish to do that? You wish to go forward with thesentencing today?

THE DEFENDANT: No, I just want to get the sentence now.

THE COURT: So you want to be sentenced today?

THE DEFENDANT: Yes."

Appended to the presentence report was a psychological evaluation by clinical psychologistKaren Chandry. Defendant told Chandry that he had trouble learning and concentrating in schoolwhen he was a child in Honduras. He also told of several untreated head injuries that he suffered asa child. As an adult, he traveled alone for four months through four countries to get to the UnitedStates. After he began to live with Yensi Rodriguez, the victim in this case, he began to use alcoholand marijuana. He was under the influence of both substances and did not know what he was doingwhen he stabbed Rodriguez during a fight. Since he was arrested, defendant suffered from post-traumatic stress disorder, resulting in nightmares of the offense and thoughts of suicide.

Chandry described defendant as cooperative with the evaluation process. Defendant"indicated by his questions and comments that he was having difficulty comprehending questionsasked him." While he appeared to have "cognitive defects complicated by depression," hedemonstrated "no evidence of delusional thinking or any other indicators of a formal thoughtdisorder." He was "alert and oriented to time, place, and person." His ability to concentrate"appeared compromised," his judgment and level of insight were assessed as "fair to poor," and hisintellectual functioning was rated as "low average." He appeared to have problems with frustrationand anger and was impulsive and unpredictable. Chandry recommended that defendant be evaluatedby a psychiatrist "for the usefulness of psychotropic medication" and "observed for further suicidalideation and intentions, particularly after his sentencing and after he is first transferred to the IllinoisDepartment of Corrections."

Following arguments, the court sentenced defendant to 23 years in the Department ofCorrections. Defendant subsequently filed a motion to withdraw his guilty plea, which was writtenby Wineberg. The motion alleged that "something was lost in the translation" by the interpretersinvolved in the case such that defendant was not aware that he was pleading guilty to first degreemurder and that he could receive a sentence of no less than 20 years in prison. He also argued thathe had a meritorious defense of self-defense and that his "wavering" on his guilty plea was evidencethat "he was pushed into making a hasty decision to forego his right to trial." The trial court deniedthis motion after a hearing. This appeal followed.

Defendant first contends that the trial court erred by not ordering a fitness hearing. Dueprocess prohibits prosecuting or sentencing a defendant who is not competent to stand trial. Peoplev. Sandham, 174 Ill. 2d 379, 382 (1996). Fitness to stand trial requires that the defendant understandthe nature and purpose of the proceedings against him and be able to assist in his defense. Sandham,174 Ill. 2d at 382. Fitness refers to a person's ability to function in the context of a trial and does notrefer to sanity or competence in other areas; a defendant can be fit for trial although his mind may beotherwise unsound. People v. Easley, 192 Ill. 2d 307, 320 (2000). A defendant is entitled to a fitnesshearing only when a bona fide doubt arises about the defendant's fitness. Easley, 192 Ill. 2d at 318. While there are no fixed or immutable signs that invariably indicate the need for further inquiry,relevant factors that the trial court may consider include the defendant's irrational behavior, thedefendant's demeanor in court proceedings, and any prior medical opinion on the defendant'scompetence to stand trial. Easley, 192 Ill. 2d at 319. Whether a bona fide doubt about a defendant'sfitness has arisen is a matter within the trial court's discretion. Sandham, 174 Ill. 2d at 382.

Defendant argues that Potkonjak raised a bona fide doubt of fitness when he informedthe trial court of his own bona fide doubt of fitness. We disagree. Potkonjak, while raising thespecter of defendant's unfitness, also raised the possibility that defendant was engaged in"gamesmanship." Potkonjak also stated that he thought that the language barrier may have playeda role in defendant's equivocation. In denying the motion for a fitness hearing, the court commentedon defendant's behavior during the court proceedings and how he responded to questions while incourt. The court also noted that "how the words are used" may have had an impact vis-a-vis thelanguage barrier. The court found that defendant understood the proceedings and communicatedwith his attorneys. Defendant himself brought up the difference between first and second degreemurder and the possible sentences involved. While defense counsel may have used the magic wordsof bona fide doubt, we conclude that the trial court did not err in refusing to order a fitness hearingon this basis.

Defendant also argues that the psychological evaluation raised a bona fide doubt of hisfitness. We disagree. Chandry noted defendant's many difficulties, including prior head injuries andproblems with comprehension, impulsive behavior, concentration, post-traumatic stress, andsubstance abuse. However, Chandry also noted that defendant was "alert and oriented to time, place,and person" and did not demonstrate any evidence of "delusional thinking or any other indicators ofa formal thought disorder." Significantly, Chandry did not opine that defendant's problems wouldhave prevented him from understanding the nature and purpose of the proceedings against him andbeing able to assist in his own defense. This report was one factor that the trial court could considerin determining defendant's competence to stand trial. See Easley, 192 Ill. 2d at 319. The trial courtclearly considered the report, along with defendant's behavior and demeanor in the courtroom. Whiledefendant may have had difficulty making up his mind and sticking to his decision, we cannotconclude that the trial court abused its discretion by not ordering a fitness hearing.

Defendant next contends that the trial court erred in failing to conduct a preliminary inquiryor make any ruling when it was informed that defendant wished to withdraw his plea on the basis ofineffective assistance of counsel. Defendant claims that there were two occasions where the trialcourt was put on notice that he intended to raise ineffective assistance of counsel in his motion towithdraw his guilty plea. However, we are not persuaded that, in either instance, defendant actually expressed an intent to allege ineffective assistance of counsel; therefore, the trial court did not err infailing to investigate the nonexistent claims. Defendant first cites to the February 15, 2002, courtdate, when Potkonjak first informed the court that defendant wanted to withdraw his plea. Defendantargues:

"Potkonjak suggested to the judge that it would not be proper for either Weinberg[sic] or himself to continue representing defendant because defendant wanted to withdraw hisplea on the basis that he had been led to believe that he had pled guilty to second-degreemurder."

Our review of the transcript of the proceedings on that day reveals no mention of ineffectiveassistance of counsel. Potkonjak was merely stating that they could not proceed with sentencingbefore they could "ascertain whether or not there's a clear understanding of what he had pled guiltyto." Defendant could have misunderstood for reasons other than attorney incompetence. Defendant'slack of English-speaking skills are well documented. Clearly, there was no mention of the intent toallege ineffective assistance of counsel in this instance.

Defendant next cites to Wineberg's motion to withdraw as defense counsel. In the motion,Wineberg clearly raised the issue of ineffective assistance of counsel. However, Wineberg raised theissue without speaking directly with defendant to learn his intentions. Instead, the issue was raisedbased on an investigator's interview with defendant. The trial court recommended that Winebergspeak directly with defendant and then "file whatever needs to be filed." Again, there was no clearindication that defendant planned to allege ineffective assistance as a basis for withdrawing his plea. A hearsay statement is not sufficient to apprise the court of a defendant's true intentions.

The dissent cites to People v. Moore, 207 Ill. 2d 68 (2003), and People v. Friend, 341 Ill.App. 3d 139 (2003), to support its argument that the trial court should have inquired further intodefendant's claims of ineffective assistance of counsel. However, these cases are distinguishable. InMoore, the defendant actually filed a pro se motion seeking appointment of new counsel, on whichthe trial court failed to rule, even after defense counsel brought the motion to the court's attention. Moore, 207 Ill. 2d at 73-74. The defendant also specifically told the court of his complaints againstcounsel. Moore, 207 Ill. 2d at 75-76. In Friend, the presentence report contained a five-pagestatement by the defendant alleging specific actions by defense counsel, including the failure ofcounsel to file any motions after charging the defendant $10,000 to file motions, leaving the defendantwithout funds to fight the case further. Friend, 341 Ill. App. 3d at 143. Here, defendant never fileda pro se motion with allegations into which the court could inquire. Defendant never told the courtof any problems he had with his counsels' representation. The presentence report contained only aone-sentence generic reference to complaints that defendant made to a probation officer at the timeof the preparation of the report and several months earlier. None of the complaints, in any event,specifically alleged ineffective assistance of counsel. The record in this case simply does not showthat the trial court was presented with specific allegations of ineffective assistance of counsel suchthat it was required to inquire further. A trial court is not required to chase after hearsay and rumors. Therefore, we find no error here.

For these reasons, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

HUTCHINSON, J., concurs.

JUSTICE BOWMAN, dissenting:

I respectfully dissent in part.

With respect to defendant's contention that the trial court failed to conduct a preliminaryinquiry into his claims of ineffective assistance of counsel, I disagree with the majority's conclusionthat the "trial court did not err in failing to investigate the nonexistent claims." Slip op. at 7. Rather,a preliminary investigation was not only warranted, but required in this case.

Defendant, from Honduras, speaks only a limited amount of English. An interpreter aided hiscommunication with the court. When the court questioned him, defendant gave several unusualresponses that evinced a lack of understanding of the proceedings. On December 10 and 11, 2001,while in court for pretrial proceedings, the trial court held a Rule 402 conference (see 177 Ill. 2d R.402) with the State and defendant's assigned attorneys from the public defender's office, TheodorePotkonjak and Scott Wineberg. When the trial court asked defendant if his attorneys had explainedwhat a Rule 402 conference entails, defendant responded, "What should I say, yes or no?" After thetrial court repeated the question, defendant stated, "I really don't understand. I don't know." Thetrial court then attempted to describe the purpose of a Rule 402 conference. Defendant said that heunderstood, "[m]ore or less."

Following the Rule 402 conference, Potkonjak informed the trial court that he had spokenwith defendant about the conference and advised him that a plea could be arranged with arecommended sentencing cap of 30 years for first degree murder, likely resulting in a sentence of 20to 25 years. The trial court then asked defendant if Potkonjak had explained the plea offer anddefendant replied, "That I am not guilty?" In response to defendant's apparent confusion, the trialcourt described to him in detail what happened during the conference. Defendant then agreed thatPotkonjak had explained to him the results of the Rule 402 conference. Potkonjak requested thatdefendant be given until the following day to decide if he wanted to accept the plea offer.

The next day, the trial court asked defendant if he wished to accept the plea, with a sentencingcap of 30 years, to which defendant replied, "A minimum of 30 years?" After the court attemptedto explain the meaning of a sentencing cap, defendant stated "My attorney just told me that it's lessthan 25 years. I can't take 30 years. That's too much." The court attempted to explain the plea offeronce more. Following the court's admonishment, defendant accepted the plea offer and pleaded guiltyto first degree murder.

On February 15, 2002, the parties appeared in court for defendant's sentencing, but thepresentence investigation report (PSI) was unfinished. Potkonjak informed the trial court that he hadreceived a call from Dana Paschall, the probation officer preparing the PSI. She advised Potkonjakthat, when she attempted to interview defendant for the PSI, defendant refused to cooperate. Defendant told Paschall that he did not understand the plea, he was not guilty of first degree murderbecause he acted in self-defense, he did not wish to plead guilty to first degree murder, and he pleadedwith the understanding that he was pleading guilty to second degree murder. Potkonjak continuedby informing the court that he had spoken with defendant and that defendant wanted to withdraw hisplea. The trial court directed Potkonjak to prepare a written motion.

The parties returned to court on March 15, 2002, and Potkonjak informed the court thatdefendant had decided against withdrawing his plea and wished to go forward with sentencing. Thecourt asked defendant whether he wanted to withdraw his guilty plea. Defendant replied, "Well, yes.Yes, I would like to withdraw." Potkonjak then said that "this keeps going on and on and on, andhe's just not--we tell him something, and it seems to sink in, but it doesn't." However, the trial courtdenied a request by Potkonjak for a fitness evaluation, finding no bona fide doubt of fitness. Potkonjak further related to the court that he was leaving the active practice of law and that Winebergalone would be handling defendant's case.

Two weeks later, on April 2, Wineberg filed a motion to withdraw as counsel. In the motion,Wineberg stated that Potkonjak had become a circuit court judge and that "defendant asserts that hislawyers have failed to provide effective representation and that he now wishes to withdraw his pleaof guilty and proceed to a jury trial." The motion further provided:

"The defendant and counsel have come to an impasse and there has been a totalbreakdown in communication. The defendant expressed that he no longer wishes for thePublic Defender to represent him in this case and that he would be asking the Court toappoint another attorney to represent him.

Further representation of this defendant in pursuit of his motion to withdraw his pleameans that counsel will have to allege the ineffectiveness of himself and a man who has sincebeen bestowed a judicial robe. If the defendant has a motion to withdraw his guilty pleadenied, counsel will be left in the precarious position of representing the defendant forsentencing purposes. The 'cleaner' solution is to appoint outside counsel at the earliestjuncture."

On April 8, Wineberg appeared in court on his motion to withdraw as counsel. He relatedto the court that, while he was on vacation, he sent an investigator from his office to meet withdefendant. During defendant's conversation with the investigator, defendant claimed that hisattorneys did not help him, he did not understand that he pleaded guilty to first degree murder, hewanted a prison term of less than 20 years, and he refused to plead guilty to first degree murder. Wineberg asserted that he could no longer assist defendant because defendant's allegations ofineffective assistance of counsel created a conflict of interest. The trial court responded that it hadnot received "anything" directly from defendant. The court directed Wineberg to speak withdefendant and "file whatever needs to be filed." Following the April 8 appearance, Wineberg did notfile any further motions before defendant appeared for sentencing on April 19.

On April 19, Wineberg informed the court that defendant wanted to proceed with sentencing. With respect to defendant's past discussions and intimations regarding his desire to pursue a motionto withdraw his plea, Wineberg asserted that such a motion would not be "meritorious." The trialcourt then asked defendant if he discussed withdrawing his plea with Wineberg. Defendant initiallyreplied, "What? I didn't understand." After the trial court repeated the question, defendantacknowledged that he had discussed withdrawing his plea with Wineberg. The court next askeddefendant if he wished to be sentenced today. Defendant responded, "No, I just want to get thesentence now." He subsequently said "Yes" when the court rephrased its question regardingdefendant's desire to proceed with sentencing. Later, the court informed defendant that he had theright to speak with the court about any subject he wished. Defendant responded, "Yes. I just wantedto know how much the time is going to be for the sentence. I wanted to know the time." The courtthen asked defendant if he had anything else he wanted to say, to which defendant remarked, "No.Just that. There is nothing more else [sic] to say." The court sentenced defendant to 23 years inprison.

It is important to note that on the day of sentencing, the trial court did not inquire about theallegations of ineffective assistance of counsel contained in Wineberg's April 2 motion to withdrawas counsel. Moreover, in the PSI that Paschall prepared, she stated:

"On March 15, 2002, the defendant indicated he did not want to file a formal motionto reconsider his plea and agreed to proceed with this investigation. However, whenprobation attempted to interview the defendant following his last court appearance, he againrefused to participate and expressed the same protests as before."

Defendant's prior protests included his claims that he did not understand the plea, he was not guiltyof first degree murder because he acted in self-defense, he did not wish to plead guilty to first degreemurder, and he pleaded with the understanding that he pleaded guilty to second degree murder.

The PSI also included the psychological evaluation of Dr. Karen Chandry. According to Dr.Chandry, defendant conveyed to her that he was often depressed and thought about committingsuicide "on and off" since his arrest. Dr. Chandry indicated that defendant experienced "cognitivedefects complicated by depression" and that his "level of intellectual functioning is estimated to below average," his ability to concentrate is "compromised," and his judgment and level of insight "wereassessed as ranging from fair to poor."

On May 5, defendant, acting pro se, sent a letter to Judge Victoria A. Rossetti requesting anextension of time to file his appeal. He also sought transcripts and the aid of an attorney. Winebergappeared in front of Judge Rossetti on May 29 on defendant's pro se request for an extension of timeto file his appeal. Defendant was not present at the May 29 proceeding. In fact, defendant did notattend any of the proceedings that occurred after his sentencing on April 19. He was located atStateville Correctional Center in Joliet. Wineberg explained to the court that he had been showndefendant's letter to Judge Rossetti. Wineberg said that he did not know why defendant did notcontact him directly. The trial court told Wineberg to contact defendant and figure out whatdefendant wanted.

Wineberg appeared again in court on June 19 on defendant's request for an extension of timeto file an appeal. Wineberg related to the trial court that he had sent letters to defendant on May 29and June 7, inviting defendant to call his office and set forth the reasons why he believed the pleashould be withdrawn. However, defendant never responded. The trial court continued theproceeding until July 19 to give defendant more time to respond.

On July 19, Wineberg informed the court that he had received a letter from defendant on July2. According to Wineberg, in the letter, defendant appeared to want to withdraw his plea for tworeasons. First, defendant wished to claim self-defense. Second, defendant said that he pleaded guiltybecause he lacked an appropriate understanding of the law. Wineberg said that he felt the court hadadequately explained everything to defendant. Wineberg continued that he assumed defendant wasrequesting that he file a motion to withdraw his plea. Wineberg stated, "I will do so because that iswhat he wants even though I don't think that its meritorious. *** But in light of his other contentionthat may assert ineffectiveness, and I don't know if that's explicitly what he is saying or implicitly,perhaps other counsel should be appointed to investigate that claim." The court told Wineberg thathe should do whatever he thought was required. Then, after Wineberg again questioned the meritof the motion, the court instructed him to explain his misgivings to defendant, explore the allegationswith him, and if conflict issues arose, bring them before the court for appointment of conflict counsel.

On August 16, Wineberg appeared in court and related that he had attempted to contactdefendant following the July 19 proceedings, but had not heard back from him. Wineberg said that,in the interests of justice, he had prepared a written motion to withdraw defendant's plea with thecontentions of error contained in defendant's July 2 letter. I note that the July 2 letter is not includedas part of the record on appeal. The court permitted Wineberg to file the motion and set a hearingdate. The motion alleged:

"The Defendant is neither a citizen born or naturalized in the United States nor aresident alien in the United States and, as such, is not familiar with the criminal justice systemin this country.

All communication with the Defendant has been with the aid of an interpreter, andsomething was lost in the translation such that the Defendant believes he was not made awarethat he was pleading to first degree murder and/or that he could receive no less than 20 yearsin the Department of Corrections for such a plea.

The Defendant did not knowingly and voluntarily waive his rights appurtenant witha trial.

The Defendant believes that the amount of wavering he did on and around the day ofhis guilty plea, recalling that this matter was set for trial at the time plea negotiations beganin earnest and the Court conducted a R. 402 conference, indicate that he was pushed intomaking a hasty decision to forego his right to trial and that it was error for the Court to allowhim to do so.

The Defendant maintains that he has a meritorious defense, and a scar on his torso tosupport his claim that he acted in self-defense and that, therefore, he would be guilty of nomore than Second Degree Murder."

On October 2, the trial court conducted a hearing on defendant's August 16 motion towithdraw his plea. Wineberg stated that he had corresponded with defendant by mail and had lastreceived a letter from defendant on September 23. Wineberg indicated that he did not have anythingfurther to add to the motion to withdraw the plea. He said nothing about allegations of ineffectiveassistance of counsel, nor did the trial court ask Wineberg about the possible allegations of ineffectiveassistance of counsel that were discussed on July 19. The State argued that everything was done verycarefully and thoroughly to explain the situation to defendant and that he knowingly and intelligentlywaived his rights. Wineberg did not offer any rebuttal, but instead rested on his written motion. After recounting the proceedings, the trial court denied the motion, concluding that defendantknowingly and intelligently entered the plea.

Recently, in People v. Moore, 207 Ill. 2d 68, 77-78 (2003), the supreme court reiterated that,when a defendant presents a pro se posttrial ineffective assistance of counsel claim, new counsel isnot automatically required. Rather, the trial court should first examine the factual basis of thedefendant's claim. Moore, 207 Ill. 2d at 77-78. The trial court may deny the pro se motion if thecourt determines that the claim lacks merit or pertains only to matters of trial strategy. Moore, 207Ill. 2d at 78. However, new counsel should be appointed if the allegations show possible neglect ofthe case. Moore, 207 Ill. 2d at 78. "The operative concern for the reviewing court is whether thetrial court conducted an adequate inquiry into the defendant's pro se allegations of ineffectiveassistance of counsel." Moore, 207 Ill. 2d at 78.

In Moore, the trial court labored under a misapprehension that the defendant's pro se claimof ineffective assistance of counsel could be resolved simply by appointing appellate counsel toaddress the defendant's grievance on appeal. Moore, 207 Ill. 2d at 77-79. The supreme courtrejected the State's argument that the defendant waived the issue when he and his trialcounsel " 'stood mutely and did nothing to request further inquiry.' " Moore, 207 Ill. 2d at 79. Thesupreme court observed that it would be inappropriate for the trial counsel to argue a motion that ispredicated on allegations of counsel's own incompetence. Moore, 207 Ill. 2d at 79. Pertinent to thecase at bar, the supreme court stated that "a pro se defendant is not required to do any more thanbring his or her claim to the trial court's attention." Moore, 207 Ill. 2d at 79. Where the defendant'sallegations have been brought to the trial court's attention, the supreme court emphasized that the"law requires the trial court to conduct some type of inquiry into the underlying factual basis." Moore, 207 Ill. 2d at 79.

In another pertinent case, we addressed a situation wherein a trial court denied a defendant'smotion to withdraw his plea of guilty to charges of possessing a controlled substance with the intentto deliver. People v. Friend, 341 Ill. App. 3d 139, 140 (2003). In Friend, the defense counsel filedthe motion to withdraw the defendant's guilty plea, alleging, inter alia, that the defendant had been" 'forced into a plea of guilty.' " Friend, 341 Ill. App. 3d at 140. At a hearing, the defense counselexplained that he had filed the motion based on the defendant's statements in the presentence report. Friend, 341 Ill. App. 3d at 140. Those statements included the defendant's claims that he had been" 'blackmailed' " into pleading guilty and that he questioned the quality of defense counsel'srepresentation. Friend, 341 Ill. App. 3d at 140.

The defense counsel invited the trial court to question the defendant about his comments. However, the court refused, stating that the motion lacked any specific allegations to show the pleawas coerced. Friend, 341 Ill. App. 3d at 140. The trial court thus denied the motion because it didnot believe that the defendant " 'was operating under any type of misapprehension of law or fact.' " Friend, 341 Ill. App. 3d at 140. The trial court concluded that the defendant had made the statementsbecause he was seeking leniency. Friend, 341 Ill. App. 3d at 140. The defendant renewed the motionafter he was sentenced, but the court again denied it. Friend, 341 Ill. App. 3d at 140.

We held that the defense counsel should have moved to withdraw as counsel when he realizedthat the defendant was questioning his professional judgment. Friend, 341 Ill. App. 3d at 141. Moreimportant to the case sub judice, the State argued that the trial court independently evaluated thedefendant's allegations of ineffective representation. Friend, 341 Ill. App. 3d at 141. We held thatit was clear that the trial court did not adequately investigate the defendant's claims. Friend, 341 Ill.App. 3d at 142. Moreover, we determined that it was irrelevant whether the defense counsel or thedefendant brought the allegations to the trial court's attention. Friend, 341 Ill. App. 3d at 142.

In the present case, I disagree with the majority's characterization of defendant's claims as"nonexistent." Slip op. at 7. Not only did defendant face a language barrier, but he experienced"cognitive defects complicated by depression," his "level of intellectual functioning [was] estimatedto be low average," his ability to concentrate was "compromised," and his judgment and level ofinsight "were assessed as ranging from fair to poor." Moreover, during the proceedings, defendantmade several unusual remarks and provided confusing answers to many questions posed by the trialcourt.

On February 15, 2002, Wineberg told the court that, based on a conversation betweenPaschall and defendant, defendant claimed that he did not understand the plea and entered it againsthis wishes. On March 15, defendant told the court that he did not want to withdraw his plea, butstarted off by stating, "Well yes. Yes, I would like to withdraw." Potkonjak then expressed to thecourt the difficulty he was having communicating with defendant.

In the April 2 motion to withdraw as counsel, Wineberg stated that defendant asserted thatWineberg and Potkonjak failed to provide effective representation and that defendant wished towithdraw his plea. The motion was based on a conversation an investigator from Wineberg's officehad with defendant in which defendant claimed that his attorneys did not help him and that he did notunderstand the plea and entered it against his wishes. However, at the next court appearance,defendant's April 19 sentencing hearing, the court did not inquire into the allegations contained in theApril 2 motion. I believe that the court was derelict in not inquiring into these prior allegations, inlight of Paschall's comments in the PSI that, between the March 15 appearance and the April 19hearing, defendant again told Paschall that he did not understand the plea and entered it against hiswishes. Moreover, defendant's repeated demands at the sentencing hearing to just "know the time"indicate a wearied acquiescence to the process, which should have further prompted the court toexplore the prior allegations.

Beyond the problems surrounding the April 19 sentencing hearing, in defendant's May 5 letterrequesting an extension of time to appeal, defendant requested the assistance of an attorney. However, when Wineberg attempted to contact him, defendant did not respond until July 2. In hisresponse, defendant asserted that he did not understand the law when he entered the plea. Based onhis prior dealings with defendant, evidenced in particular by the April 2 motion to withdraw ascounsel, Wineberg recognized that the effectiveness of his representation was probably beingquestioned and he conveyed his concerns to the trial court. On August 16, Wineberg informed thecourt that he had not heard from defendant since July 2. During this time, Wineberg never clarifiedwhat defendant specifically alleged in his letter even though Wineberg was aware that defendant wasprobably questioning his performance. Nonetheless, Wineberg, with the approval of the court, fileda motion to withdraw defendant's plea. The August 16 motion to withdraw defendant's plea did notallege ineffective assistance of counsel, which Wineberg could not properly allege anyway becauseof conflict issues. However, the motion stated that defendant was "pushed into making a hastydecision," but it did not say who pushed him. Then, at the October 2 hearing on the motion towithdraw the plea, neither Wineberg, the trial court, nor the State spoke a single word about theallegations of ineffective assistance of counsel or who "pushed [defendant] into making a hastydecision." In fact, by this juncture, Wineberg was responsible for advocating a motion that threetimes he referred to as lacking merit. At the hearing, he did not give any oral argument, but simplyrested upon the written motion.

Based on my review of the record in this matter, I conclude that defendant's allegations ofineffective representation were sufficiently brought to the attention of the trial court to require apreliminary investigation. However, as the proceedings unfolded, defendant's allegations were eitherforgotten, ignored, or swept under the rug. The end result is that defendant has been denied a properjudicial inquiry into the underlying factual basis of his claims.

In conclusion, since we do not have a clear understanding of what occurred during theconversations and correspondences between defendant and his attorneys, Potkonjak and Wineberg,no clear record exists on appeal to allow us to directly assess defendant's claims of ineffectiveassistance of counsel. Thus, I would remand. See Moore, 207 Ill. 2d at 81-82; see also Friend, 341Ill. App. 3d at 143. However, I would not remand for a full evidentiary hearing and appointment ofcounsel on the issue of trial counsel's competence. See Moore, 207 Ill. 2d at 81. Rather, if, after thetrial court performs the requisite preliminary investigation, it determines that the claims have merit,new counsel should be appointed and defendant should be allowed to pursue his motion to withdrawhis plea, based on his allegations of ineffective assistance of counsel. See Moore, 207 Ill. 2d at 81. If defendant's claims are spurious or pertain only to matters of strategy, the trial court should simplyleave standing defendant's conviction and sentence, and defendant could pursue on appeal his claimsof ineffective assistance of counsel. See Moore, 207 Ill. 2d at 81.

For the aforementioned reasons, I would reverse and remand for further proceedings.