Opinion
4-22-0356
05-11-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TROY McKINNEY, Defendant-Appellant.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Peoria County No. 21CF561 Honorable Kevin W. Lyons, Judge Presiding.
JUSTICE LANNERD delivered the judgment of the court. Presiding Justice DeArmond and Justice Steigmann concurred in the judgment.
ORDER
LANNERD, JUSTICE
¶ 1 Held: (1) The trial court failed to conduct a proper preliminary Krankel inquiry.
(2) The record established possible neglect of defendant's case by his trial counsel, requiring the appointment of new counsel for defendant on remand.
(3) Defendant failed to establish the assignment of a different trial judge on remand is required.
¶ 2 On February 1, 2022, a jury found defendant, Troy McKinney, guilty of the offenses of armed habitual criminal and unlawful possession of a weapon by a felon. Because defendant alleged his trial counsel was ineffective, the trial court held a preliminary inquiry pursuant to People v. Krankel, 102 Ill.2d 181, 464 N.E.2d 1045 (1984), and its progeny on March 16, 2022. The court found defendant was not entitled to new counsel because his ineffective assistance of counsel claims were meritless. Defendant appeals, arguing the court failed to conduct the preliminary Krankel inquiry in a neutral, nonadversarial way and also failed to create a record sufficient to determine whether a new attorney should have been appointed to represent defendant.
¶ 3 Based on our review of the record, defendant established the trial court failed to properly conduct the preliminary Krankel inquiry. However, because the record demonstrated possible neglect of defendant's case by his trial counsel, a new preliminary Krankel inquiry is not necessary. Instead, we remand this case with directions to the trial court to appoint new counsel to represent defendant and investigate and litigate his claim his trial counsel was constitutionally ineffective. Additionally, based upon our review of the record, defendant failed to establish on remand assignment of a new trial judge is required. On remand, defendant's new attorney may file any motion he or she deems appropriate.
¶ 4 I. BACKGROUND
¶ 5 On November 30, 2020, the State charged defendant by information with one count of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2020)) and domestic battery (720 ILCS 5/12-3.2(a)(2) (West 2020)) in Peoria County case No. 20-CF-0671. The charges stemmed from events that occurred on November 26, 2020, involving Santanya Adams. On December 17, 2020, the trial court informed defendant his public defender would be Michael Doubet.
¶ 6 On August 5, 2021, the trial court dismissed case No. 20-CF-0671 on the State's motion. The court informed defendant the State could refile the charges against defendant within three years of the date the charged offenses allegedly occurred.
¶ 7 Approximately one month later, on September 7, 2021, a grand jury indicted defendant in case No. 21-CF-561 for the same conduct he was charged with in case No. 20-CF-671. In addition to the charges he faced previously, the grand jury indicted defendant on an armed habitual criminal charge (720 ILCS 5/24-1.7(a) (West 2020)).
¶ 8 At a hearing on October 14, 2021, Public Defender Nathan Bach appeared on defendant's behalf and indicated Doubet would represent defendant. The trial court instructed defendant to give Doubet a call after a few days to allow Doubet a chance to acquire and review the case file. Defendant was upset by the amount set for his bond and asked the trial court to lower it. The court declined and told defendant that Doubet could file a motion to reduce defendant's bond if he thought the motion had merit. Defendant told the court Doubet would not file a motion and indicated Doubet only wanted him to plead guilty to the previously dismissed charges. Defendant indicated he would be his own lawyer because he was not guilty. However, the trial court adjourned the hearing without determining whether defendant was serious in his desire to represent himself.
¶ 9 On November 16, 2021, defendant filed a pro se motion to dismiss the charges against him. On December 3, 2021, defendant filed another pro se motion to dismiss all three counts of the indictment.
¶ 10 At a hearing on December 8, 2021, the trial court indicated defendant was present in the holding cell. Doubet did not appear, and only the assistant state's attorney was present in the courtroom. The court stated, "Mr. Doubet, is scheduled to be here in a little while, but rather than wait to do some navigating of dates, we'll move Mr. McKinney's date." On its own motion, the court moved the hearing to December 16, 2021. The record does not indicate what occurred at the December 16, 2021, hearing. The court entered an interim order on January 13, 2022, indicating Doubet was present for defendant, but the record contained no report of proceedings. At the January 13 appearance, the case was continued on defendant's motion until January 21, 2022, for review of defendant's pro se request.
¶ 11 At the January 21, 2022, hearing, the trial court stated Doubet was defendant's lawyer, but Bach was present on Doubet's behalf. The court indicated it believed defendant wanted to proceed pro se at an earlier hearing. However, the court did not have time at the prior proceeding to properly admonish defendant about proceeding pro se. Defendant denied ever saying he wanted to represent himself and indicated the court said Doubet was his attorney. The court then noted it had handwritten motions filed by defendant.
¶ 12 Defendant told the trial court Doubet had not been communicating with him. Bach then left the courtroom without asking for a recess or providing any explanation. Neither Bach nor Doubet ever returned to represent defendant at the January 21 hearing. However, the court continued to engage with defendant about the case while he was without representation of counsel.
¶ 13 Defendant told the trial court he had been sending documents to both Doubet and the circuit clerk because Doubet was not communicating with him. In addition, defendant asserted Doubet had never called or visited defendant at the jail. The court told defendant it did not allow both a defendant and his attorney to file motions and indicated it appeared defendant had not had any contact with Doubet. Defendant said that was correct and added he had filed nothing indicating he wanted to proceed pro se. The court continued to question defendant regarding why the court would have thought defendant wanted to proceed pro se.
¶ 14 The trial court eventually told someone in the courtroom to find Bach and bring him back to the courtroom. However, Bach failed to return. Defendant told the court he did not know the court would see documents he sent to the circuit clerk and his attorney. According to defendant, he was trying to make sure Doubet was doing something about defendant's situation because he had been in jail for four months. At that point, defendant asked the court, "Where is my lawyer at?" The court failed to respond directly and focused again on why the court would have thought defendant wanted to proceed pro se.
¶ 15 The trial court acknowledged a misunderstanding had occurred and wondered why Doubet was not at the hearing. Then, the court speculated Doubet may have said defendant wanted to be his own attorney, which made the court assume Doubet and defendant had discussed the matter. Defendant told the court he did not tell Doubet he wanted to proceed pro se and had not talked to Doubet since November 2020. At that point, he also mentioned his right to a speedy trial. Thereafter, the court indicated that it would not be able to hold defendant's trial on January 24, 2022, under these circumstances. The following exchange then took place between the court and defendant:
"THE COURT: Let's do this. Your trial is set for Monday, but we can't have a trial on Monday if you haven't seen your lawyer in ages and you don't intend to be your own lawyer, which I hope you don't. I'm trying to get ahold of Mr. Bach, who was here five minutes ago. He's the Public Defender.
Why don't we look at this on Monday with the anticipation we're not going to have a trial on Monday, but I'll get Mr. Bach and Mr. Doubet here and put this on track.
THE DEFENDANT: For a scheduling conference?
THE COURT: Call it a birthday party for all I care. I'm just saying that we've got to address first things first. If you want a trial on Monday, fine, but how do you think that's going to look?
THE DEFENDANT: I'm just saying because I don't-I'm under the impression you got to do a scheduling conference before you have a trial.
THE COURT: Okay. Let's have one. What do you want to say? See. You're trying to check off the boxes. Let's do what we have to do first. Let's get you a
lawyer or at least if the lawyer you have-let's get you in a path where you feel comfortable that he knows what's going on and you know what's going on, you've had a conversation.
THE DEFENDANT: What about my 120-day speedy trial? I have a lawyer. I ain't fired-I ain't spoke to this man.
THE COURT: How is that going for you? THE DEFENDANT: Huh? THE COURT: How is your lawyer relationship going here so far? Not so good.
THE DEFENDANT: Last year I didn't speak to him at all. He got the case dismissed. This case was dismissed because I'm not guilty. So I don't-I don't-I don't feel like-I'm not worried about not talking to him because there is no case, first of all.
THE COURT: That is a ridiculous thing to say.
THE DEFENDANT: That's not ridiculous. That's a very good thing to say. If you want to go [to] trial Monday, we can go to trial Monday.
THE COURT: That's what we're going to do. THE DEFENDANT: I'm not pro se. I have a lawyer. THE COURT: See you Monday. You're not bothered your lawyer hasn't-
THE DEFENDANT: It's a jury trial. My lawyer said that. Because we're making things questionable, everything is questionable, I want to make sure that you remember that my lawyer, Mike Doubet, said for the record-
THE COURT: Goodbye.
THE DEFENDANT: -that it's a jury trial.
THE COURT: No. What I remember you saying is that I am not bothered that I haven't talked to my lawyer in ages; let's have our trial. That's what we're going to do. See you Monday.
THE DEFENDANT: Jury trial.
THE COURT: Jury trial."
¶ 16 Defendant appeared before the trial court with Doubet on January 24, 2022. The court indicated defendant's trial was set for that day but the State had a witness who was unavailable. When defendant stated for the record he did not want his trial continued, the court told defendant his 120-day right to a speedy trial would not be tolled by the continuance. The court granted the continuance over his objection.
¶ 17 One week later, on January 31, 2022, defendant's jury trial was held. The evidence established the police did not find the gun at issue on defendant or in his vehicle. Instead, the gun was found in a bag outside but near the driver's side of defendant's vehicle. Nothing contained in the bag tied defendant to the bag or the gun.
¶ 18 Santanya Adams testified she called the police on defendant about 1:25 a.m. on November 26, 2020. When asked why she called the police, Adams testified, "Because we got into a [ sic ] altercation. He shoved me and tried to take my food out the house." The prosecutor then asked Adams what defendant was doing when he pushed her, and she explained they were arguing. ¶ 19 According to Adams, she and defendant went grocery shopping to get food for Thanksgiving. Both she and defendant had paid for the groceries. Later, the prosecutor asked Adams what led to the altercation. Before Adams could finish her answer, the prosecutor asked, "Well, was there anything involving the groceries?" Adams responded, "Yes. He took the groceries. He was attempting to take them out the house, and I told him he was not taking them. So I attempted to get-grab them. That's when it started." The prosecutor then asked if that was when she called the police, and Adams replied, "Yes because he had shoved me by this time and we tussled, you know, so I called the police." Adams testified defendant had a .38-caliber revolver he carried in a black and red "man bag." When asked, Adams stated defendant did not use the gun on her that evening. She also indicated she did not know where defendant kept the bag and gun.
¶ 20 On cross-examination, Adams asserted two of her children were in the house when the altercation occurred but did not wake up. According to Adams, when defendant tried to leave with the food for Thanksgiving, she tried to grab her food items away from him. He responded by pushing her head. Adams denied grabbing defendant. Adams and defense counsel then had the following exchange:
"Q. And so he eventually just went outside, correct?
A. Yeah, he went out the backdoor.
Q. Did he-did he leave with anything?
A. Because I called the police, he-
Q. Okay. You called the police once he went outside?
A. I'm not sure."Sua sponte, in the presence of the jury, the trial court then interjected, "She said, 'He went outside because I called the police.' That was her answer." Defense counsel did not challenge the court's questionable recollection of Adams's testimony.
¶ 21 Later, defense counsel attempted to question Adams about whether she put her hands on defendant first during the argument. Adams denied putting her hands on defendant first.
The State objected, and the court stated:
"We went down this-she was talking about there was a confrontation. She reached to take her things. If you want to characterize it as she hit him first and-and this is a contract case, then fine, we'll go to civil court. But she indicates she was grabbing her things and then that's when the drama happened. So let's go from there."
At that point, Doubet told the court he had nothing further.
¶ 22 In its closing argument, the State told the jury that Adams testified defendant left the house after she called the police.
¶ 23 The jury found defendant guilty of unlawful possession of a weapon by a felon and armed habitual criminal but not guilty of domestic battery.
¶ 24 After the trial, defendant filed some pro se motions, including a motion for a new trial. At a hearing on March 16, 2022, the trial court noted defendant had raised some claims regarding Doubet's effectiveness and held a preliminary Krankel inquiry. The court reviewed some of the claims in defendant's pro se motion for a new trial, indicated the motion was not well written, and implied it could not understand parts of the motion. The court mentioned some of defendant's claims but did not address defendant's allegation Doubet failed to impeach Adams or object to her testimony. The court agreed to conduct "a pre-Krankel hearing." Subsequently, the trial court provided defendant a brief explanation of what would occur during the preliminary Krankel inquiry.
¶ 25 The trial court then stated, "So let me ask you, [defendant], I'll give you an opportunity to explain what your complaints are, if any, regarding whatever you believe is the deficiency of Mr. Doubet." The following exchange then immediately occurred:
"THE DEFENDANT. I'm not a lawyer, but-
THE COURT. I know.
THE DEFENDANT. I know. It's like if I were to put in-
THE COURT. Now, this is your big moment. So don't give me a big global thing, like it's sort of this. You need to specify and tell me what it is you want to tell me. Go.
THE DEFENDANT. I didn't get a chance to put in a motion for to squash the arrest and squash the warrant and suppress illegally seized evidence because I hadn't talked to my lawyer at all until January [2022]. I felt like if my lawyer would have had conversations that that would have made a big difference in the trial for the most part.
THE COURT: [Defendant], you had a lawyer before the case was even dismissed, and then it got dismissed, and then you got a lawyer again when the case was re-filed, and then even when you were in court just on administrative things, the settings and scheduling conferences you spoke with your lawyer then. Now, whether you asked the right questions-
THE DEFENDANT: It-
THE COURT: It's my turn. Whether you asked the right questions or asked any questions or he had any conversations with you, I don't know, but you've got to tell me what it is that you think he was deficient in that would have changed the outcome of this trial."
¶ 26 During the preliminary Krankel inquiry, the trial court did not ask defendant any specific questions about defendant's written allegations that Doubet both failed to impeach Adams and object to her testimony. Further, the court did not ask defendant about his allegation Doubet failed to show him the discovery in the case, an assertion defendant included in his written motion and mentioned during the preliminary Krankel inquiry.
¶ 27 In addition, defendant told the trial court at hearing that he did not have a "pretrial." While defendant was explaining what he thought a pretrial was, the court interrupted him and stated:
"I don't know what you're talking about, but the Court doesn't schedule days so that a lawyer and a defendant can have a little confab, a little conversation, and say, here, take room 15 and go down there and see if you can work this out.
That's not what I do. Whatever you do is what you do. You talk with your lawyer. He talks with you. If you didn't talk enough, well, maybe you didn't, but if he didn't talk, maybe he didn't, but [defendant], my recollection is that Mr. Doubet was here every day you were here.
My recollection is that Mr. Doubet was here every day of this trial. My recollection is that I asked you the questions even early on are you sure you want a trial, do you understand that apparently an offer has been made to you, you've declined it, and now you want a trial? Yes. Yes. Yes.
So I don't know where you're getting off now pointing your fingers that it's other people you wanted to move full steam ahead, and now here we are. Now, is there anything else you want to tell me?
Okay. I find that the defendant's claims for purposes of ineffective assistance or Krankel are without merit. I'm not even going to ask Mr. Doubet any questions about it, because I think [defendant] is-he regrets the position he finds
himself in, and I can understand that, but that doesn't mean that it's time for other people to jump into the pond and get whatever he's trying to say wiped all over them.
All right. So that there is-the Court finds that his claims such as they are in the handwritten motion dated February 9th are facially insufficient and they are conclusory or bald allegations that counsel simply failed to render ineffective [ sic ] assistance, and they are not supported by his remarks or by the Court's recollection of the facts or of the procedure that's happened, and so I'll deny any relief based upon that finding, and there will be no counsel appointed and no cause set for a full hearing regarding Krankel."
¶ 28 The trial court then denied the amended motion for judgment of acquittal notwithstanding the verdict and motion for a new trial filed by Doubet. The court sentenced defendant to 91/2 years in the Illinois Department of Corrections, with credit for 184 days served.
¶ 29 This appeal followed.
¶ 30 II. ANALYSIS
¶ 31 A. Preliminary Krankel Inquiry
¶ 32 On appeal, defendant argues the trial court failed both to (1) conduct the preliminary Krankel inquiry in a neutral, nonadversarial manner and (2) create a record sufficient to determine whether replacement counsel should have been appointed to represent defendant after defendant alleged Doubet was ineffective in a pro se written motion. Whether a trial court properly conducted a preliminary Krankel inquiry is a legal question we review de novo. People v. Jolly, 2014 IL 117142, ¶ 28, 25 N.E.3d 1127.
¶ 33 After a defendant makes a posttrial allegation his attorney was ineffective, a trial court's response is governed by the procedures established by Krankel and its progeny. People v. Ayres, 2017 IL 120071, ¶ 11, 88 N.E.3d 732. According to the Illinois Supreme Court, a trial court is not automatically required to provide a defendant with a new attorney when a defendant raises a pro se posttrial claim of ineffective assistance of counsel. Jolly, 2014 IL 117142, ¶ 29. Instead, the "court should first examine the factual basis of the defendant's claim." People v. Moore, 207 Ill.2d 68, 77-78, 797 N.E.2d 631, 637 (2003).
¶ 34" 'If the trial court determines that the claim lacks merit or pertains only to matters of trial strategy, then the court need not appoint new counsel and may deny the pro se motion. However, if the allegations show possible neglect of the case, new counsel should be appointed.'" Jolly, 2014 IL 117142, ¶ 29 (quoting Moore, 207 Ill.2d at 78). "[T]he goal of any Krankel proceeding is to facilitate the trial court's full consideration of a defendant's pro se claims of ineffective assistance of counsel and thereby potentially limit issues on appeal." Jolly, 2014 IL 117142, ¶ 29. "[T]he purpose of Krankel is best served by having a neutral trier of fact initially evaluate the claims at the preliminary Krankel inquiry without the State's adversarial participation, creating an objective record for review." Jolly, 2014 IL 117142, ¶ 39.
¶ 35 At a preliminary Krankel inquiry, a trial court is permitted to talk with and question a defendant regarding his ineffective assistance of counsel claims. Jolly, 2014 IL 117142, ¶ 30. The court is also "permitted to make its determination based on its knowledge of defense counsel's performance at trial and the insufficiency of the defendant's allegations." Ayres, 2017 IL 120071, ¶ 12. However, according to our supreme court, during the preliminary inquiry," 'some interchange between the trial court and trial counsel regarding the facts and circumstances surrounding the allegedly ineffective representation is permissible and usually necessary in assessing what further action, if any, is warranted on a defendant's claim.'" Jolly, 2014 IL 117142, ¶ 30 (quoting Moore, 207 Ill.2d at 78).
¶ 36 Based on our review of the preliminary Krankel inquiry, we find the trial court's inquiry was inadequate because it failed to produce an objective record to assess the majority of defendant's ineffective assistance of counsel claims. While the court understood the need to conduct the inquiry, it failed to ask either defendant or defense counsel any specific questions regarding the factual basis of the claims. Under the circumstances, such an inquiry was necessary.
¶ 37 Normally, we would remand this case for a new preliminary inquiry. However, based on the particular facts of this case and for the sake of judicial economy, we do not believe a new preliminary Krankel inquiry is necessary because the record itself supports the appointment of a new attorney to litigate whether defendant was denied his right to effective assistance of counsel. On remand, defendant's new counsel should investigate the allegations of ineffectiveness defendant specifically raised that are noted herein, as well as other potential claims found in the record before this court.
¶ 38 Defendant told the trial court at the preliminary Krankel inquiry that his first contact with Doubet during this case was in January 2022, which was the same month his trial was held. While this was not a written allegation in his written pretrial motion, a pro se defendant is not required to bring his posttrial ineffective assistance of counsel claim to the trial court's attention through a written motion. People v. Jackson, 2020 IL 124112, ¶ 96, 162 N.E.3d 223. He or she can also raise the issue orally or through a letter or note to the trial court. Jackson, 2020 IL 124112, ¶ 96. The court failed to ask defendant or Doubet any specific questions regarding defendant's allegation. Later, the court told defendant, "You talk with your lawyer. He talks with you. If you didn't talk enough, well, maybe you didn't, but if he didn't talk, maybe he didn't, but [defendant], my recollection is that Mr. Doubet was here every day you were here."
¶ 39 The trial court's statement was not accurate. The record shows Doubet made his first appearance on defendant's behalf in this case on January 13, 2022. He then failed to appear at a hearing the next week, on January 21, 2022. During that hearing, Bach appeared on defendant's behalf for Doubet but left the hearing without giving the court notice and never returned. Consequently, defendant was left without any counsel to advocate on his behalf during this hearing. After Bach's unexcused exit, defendant told the court Doubet was his appointed counsel and he did not want to proceed pro se, and he asked why his attorney was not present. Instead of taking an immediate recess until either Doubet or Bach was present to assist defendant, the court continued to question defendant about his case, including his desire to proceed with the scheduled jury trial. Doubet's apparent lack of attention and Bach's abandonment of defendant during the January 21 hearing established possible neglect of defendant's case, justifying the appointment of new counsel for defendant.
¶ 40 However, this is not defendant's only claim of ineffective assistance new counsel needs to investigate on remand. Like the majority of pro se court filings, defendant's motion was not artfully drafted. Yet, defendant clearly alleged Doubet did not show defendant the discovery and other evidence in this case, which affected his ability to defend himself at trial. Defendant's new attorney needs to investigate this assertion.
¶ 41 Moreover, defendant also sufficiently alleged Doubet failed to impeach or object to the testimony of the State's key witness, Santanya Adams. An inference can be easily made that defendant thought Doubet was ineffective for not introducing the recording of Adams's 911 call for the purpose of impeaching Adams's testimony. Apparently, defendant believed the recording contained potentially exculpatory material. The record does not include this 911 call, and the trial court failed to ask defendant or Doubet any questions about it.
¶ 42 Because the trial court failed to establish the contents of the recording of Adams's 911 call, we can only speculate what Adams told the 911 operator. During Doubet's cross-examination of Adams, Doubet attempted to establish defendant left the house before Adams called 911. However, the court sua sponte interrupted defense counsel and stated in front of the jury that Adams had testified defendant" 'went outside because [Adams] called the police.' That was her answer." However, from our review of the record, Adams had not offered such affirmative testimony. Nevertheless, Doubet failed to challenge the court's incorrect characterization of Adams's testimony in front of the jury. Further, if Adams told the 911 operator defendant had already left the house, the recording could have been used to challenge the court's characterization of Adams's testimony and potentially impeach Adams had she later offered such testimony.
¶ 43 Whether defendant knew Adams had called 911 is an important question in this case. If defendant knew Adams called 911, he would have had a reason to try to distance himself from the weapon by leaving it on the ground. However, if he did not know the police were coming, a rational juror could question why defendant would have placed his gun on the ground instead of in his truck. This is another claim defendant's new attorney will need to evaluate.
¶ 44 Based upon our review of the record, we have identified the foregoing specific claims that defendant sufficiently raised before the trial court, and defendant's new attorney will need to investigate and evaluate the same. However, defendant's new attorney is not constrained to these specifically identified issues alone and should consider all claims raised by the record and file any and all motions he or she deems appropriate.
¶ 45 B. Request for a Different Trial Judge
¶ 46 We next turn to defendant's argument that the case should be remanded to a different trial court judge. To support his assertion, defendant relies primarily on Jolly but also cites Krankel, the sixth amendment to the federal constitution (U.S. Const., amend. VI), and Illinois Supreme Court Rule 651(c) (eff July 1, 2017). However, defendant provides no analysis to show why Krankel, the sixth amendment, or Rule 651(c) requires this court to remand the case with directions to assign to a new trial court judge.
¶ 47 In Jolly, the Illinois Supreme Court directed a new judge to be assigned to conduct the new preliminary Krankel inquiry on remand, stating:
"As we have explained, the purpose of Krankel is best served by having a neutral trier of fact initially evaluate the claims at the preliminary Krankel inquiry without the State's adversarial participation, creating an objective record for review. Here, the State's improper adversarial participation at that inquiry effectively thwarted that purpose. We thus believe the appropriate remedy is to remand for a new preliminary Krankel inquiry before a different judge and without the State's adversarial participation." Jolly, 2014 IL 117142, ¶ 46.
This case is distinguishable from Jolly because the State did not participate in the preliminary inquiry. Thus, unlike in Jolly, the trial court here did not receive any adversarial evidence or argument from the State at the preliminary Krankel inquiry.
¶ 48 As a result, Jolly does not require this court to order a new judge to be assigned on remand. While the trial court made errors in the manner it conducted the preliminary Krankel inquiry, this alone does not establish the court was not neutral. On remand, we decline to require a new judge be assigned. However, defendant's newly assigned counsel is free to file any motions he or she believes appropriate.
¶ 49 III. CONCLUSION
¶ 50 For the foregoing reasons, we remand this case with directions for the trial court to assign a new attorney to represent defendant, investigate whether defendant's trial counsel was constitutionally ineffective, and litigate this issue for defendant.
¶ 51 Remanded with directions.