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September 19, 2001

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JUSTICE McLAREN delivered the opinion of the court:

Defendant, Jose Cabrales, pleaded guilty to two counts ofcriminal sexual assault (720 ILCS 5/12--13(a)(3) (West 2000)), andhe was sentenced to consecutive sentences of 9 and 11 years'imprisonment. At a hearing on defense counsel's motion to withdrawdefendant's guilty plea, defendant told the trial court thatdefendant wanted to file a pro se motion to withdraw his guiltyplea. Defendant also advised the court that he wanted anotherattorney to represent him during these postjudgment proceedings. The trial court refused to appoint a new attorney to representdefendant, and defendant proceeded pro se, filed his pro se motion,and argued that his trial counsel was ineffective. The trial courtdenied defendant's motion. On appeal, defendant argues that thetrial court erred when it failed to conduct a preliminaryinvestigation to determine the factual basis for defendant'sineffective assistance of counsel claim before the trial courtdenied defendant's pro se motion to withdraw his guilty plea. Weagree, and we reverse and remand.

Defendant was indicted for two counts of criminal sexualassault, one count of predatory criminal sexual assault of a child(720 ILCS 5/12--14.1(a)(1) (West 2000)), and two counts ofaggravated criminal sexual abuse (720 ILCS 5/12--16(c)(1)(i) (West2000)). At the time defendant pleaded guilty to two counts ofcriminal sexual assault, no agreement was made regardingdefendant's sentence. Defendant subsequently was sentenced toconsecutive sentences of 11 and 12 years' imprisonment. Defendantmoved to reconsider his sentence, arguing, among other things, thatthe court should have sentenced defendant to probation. The trialcourt refused to impose a term of probation; however, the trialcourt reduced defendant's sentence to consecutive sentences of 9and 11 years' imprisonment.

Soon afterwards, Tracy Kotlarz, the assistant public defenderwho represented defendant during the court proceedings, moved towithdraw defendant's guilty plea. At the hearing on the motion,Kotlarz advised the court that defendant wanted to proceed pro se. The trial court asked defendant if he wished to proceed pro se, anddefendant said that he would like the trial judge's clerk to helphim. The court told defendant that the court's clerk could notassist defendant with the motion.

Defendant then advised the court that he would like to proceedon his own motion to withdraw his guilty plea, but the court didnot have a copy of this motion. Before defendant left thecourtroom to retrieve a copy of his motion, the court adviseddefendant that if he proceeded pro se defendant would have tofollow the rules of procedure that defendant may not know. Inresponse to this statement, defendant told the court "[t]hat'sprobably one of the reasons why I'm asking this Court to appoint mea different attorney." The court told defendant that it was notgoing to appoint a new attorney to represent defendant. The courttold defendant that defendant may want to have Kotlarz continue torepresent him because she could review defendant's pro se motionand decide if the allegations in the motion were meritorious. Defendant told the court that he understood that an attorney couldhelp him with his motion, but defendant did not want his currentattorney, Kotlarz, to represent him. The trial court alloweddefendant to proceed pro se and took a recess so that defendantcould retrieve his pro se motion to withdraw his guilty plea.

When defendant's case was recalled after the recess, the trialcourt appointed Kotlarz to act as standby counsel during thehearing on defendant's pro se motion to withdraw his guilty plea. The trial court then reviewed defendant's motion and discoveredthat defendant's motion raised the issue of whether Kotlarzprovided effective assistance. Because defendant argued in hismotion that Kotlarz was ineffective, the trial court vacated itsprevious order requiring Kotlarz to act as standby counsel. In hispro se motion, defendant claimed that Kotlarz was ineffectivebecause, among other things, she influenced defendant to pleadguilty, never spoke with defendant before she filed her motion towithdraw defendant's guilty plea, and failed to fully explain thedifference between consecutive and concurrent sentences.

When the court asked defendant to explain why defendantbelieved that Kotlarz was ineffective, defendant told the courtthat he delineated his reasons in his motion. After the courtagain asked defendant to explain how Kotlarz was ineffective,defendant said that he told Kotlarz he wanted to go to trial, but Kotlarz advised defendant to plead guilty because she believeddefendant would lose at trial. Defendant told the court that heasked Kotlarz to contact various witnesses, and Kotlarz neverinterviewed those witnesses. Defendant also advised the court thathe told Kotlarz that he would plead guilty only if the State wouldrecommend probation. On the day defendant was sentenced, defendanttold Kotlarz to remind the State to keep its promise, whichpresumably entailed recommending probation, and Kotlarz said thatshe would speak with the assistant State's Attorney. The Statenever recommended probation at the sentencing hearing.

When the State cross-examined defendant, defendant stated thathe knew that the trial judge would decide what sentence to impose,and Kotlarz did inform defendant that the judge would decidewhether to give defendant probation. However, Kotlarz tolddefendant that the State would recommend probation as long asdefendant's presentence investigation report (PSI) "look[ed] realgood." Defendant testified that he believed that his PSI supporteda recommendation for probation. Although the probation officer whoprepared the PSI did not recommend probation because of theseriousness of the offenses, the PSI did reveal that defendant hadno prior misdemeanor or felony convictions and no prior involvementwith drugs, alcohol, or gangs.

Kotlarz testified that she met with defendant approximately 21times over a 4-month period. Before defendant pleaded guilty,Kotlarz spoke with defendant several times about the varioussentences that the trial court could impose. Kotlarz explained todefendant what consecutive sentences meant, she told defendant thathe could not receive a term of probation for a Class X felony, andshe advised defendant that the court could give defendant probationand a prison term, two terms of probation, or two prison sentences. Kotlarz told defendant that the trial judge would decide whatsentences to impose regardless of what sentencing recommendationthe State may have made. Kotlarz advised defendant that the Statedid not agree to do more than review the PSI and make theappropriate recommendation, which probably would not includerecommending probation. Kotlarz testified that defendant asked herat the sentencing hearing to remind the assistant State's Attorneyto keep his promise, which Kotlarz believed was the assistantState's Attorney's promise to do his job and recommend anappropriate sentence.

Kotlarz also stated that she spoke with defendant about thewitnesses who defendant believed could testify on his behalf. These witnesses could testify only about the relationship thatdefendant had with his ex-wife. None of the witnesses thatdefendant asked Kotlarz to speak with were directly tied to thiscause, and Kotlarz did not believe that she was given thewitnesses' current addresses or phone numbers.

In rebuttal, defendant stated that Kotlarz refused tointerview the witnesses because Kotlarz believed that defendantshould not proceed with a trial. Defendant testified that thewitnesses could testify about defendant's relationship with hisstepdaughters and his ex-wife because the witnesses lived withdefendant at the time the offenses were committed against one ofthe stepdaughters.

After hearing the evidence, the trial court denied defendant'smotion to withdraw his guilty plea. The court found that defendantfailed to present any defense, did not establish that it wasnecessary to withdraw the guilty plea in order to correct amanifest injustice, and failed to meet either prong of the testannounced in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d674, 104 S. Ct. 2052 (1984). This timely appeal followed. Onappeal, defendant claims, among other things, that this cause mustbe remanded so that the trial court can conduct a preliminaryinvestigation to determine whether defendant is entitled to have anew attorney appointed to represent defendant on his motion towithdraw his guilty plea.

There is no per se rule that a defendant is entitled to a newattorney if he files a pro se motion challenging his trialattorney's representation. People v. Kidd, 175 Ill. 2d 1, 44(1996). Rather, when a defendant files a pro se motion arguingthat his trial counsel is ineffective, the trial court shouldconduct a preliminary investigation to determine whether the defendant's claim is valid. People v. Joyner, 317 Ill. App. 3d 93,106 (2000). During this preliminary investigation, the trial courtshould examine the factual basis for the defendant's claim anddetermine whether the defendant's claim concerns trial tactics,trial strategies, or possible neglect by the defendant's trialattorney. People v. Jackson, 131 Ill. App. 3d 128, 139 (1985). Ifthe factual basis for the ineffective assistance of counsel claimshows that the defendant's trial counsel may have neglected thedefendant's case, the trial court should appoint a new attorney whocan make an independent evaluation of the defendant's claim andpresent the cause to the trial court in a detached yet adversarialmanner. Jackson, 131 Ill. App. 3d at 139.

Here, the problem with which we are faced is that the trialcourt apparently failed to conduct a preliminary investigation intodefendant's ineffective assistance of counsel claim after the trialcourt learned that defendant argued that his trial counsel wasineffective. In this cause the trial court refused to appoint newcounsel to represent defendant in the hearing on his postjudgmentmotion before the court read the pro se motion and thus could nothave considered the conflict issue at the time of the refusal toappoint. If the court at any time considered the conflict issueafter it read the motion, the record does not reflect the natureand extent of the court's awareness of the problem nor how and whythe court resolved the possible need to appoint conflict counsel. We must conclude there was no preliminary investigation because thecourt proceeded to a full hearing on the merits of defendant's prose motion without any discussion or resolution of the need for apreliminary investigation for appointment of conflict counsel. Theonly matter that appears of record is the detailed hearing on themerits of defendant's motion and not a simple fact-gatheringinvestigation. See Jackson, 131 Ill. App. 3d at 139 (noting thatan evaluation of a defendant's claim of ineffective assistance oftrial counsel necessarily will involve some interchange between thedefendant's trial counsel and the trial court).

The State claims that the trial court conducted a preliminaryinvestigation, but the State fails to cite to any page in therecord that supports its contention. Moreover, a careful review ofthe record establishes that no such preliminary investigation tookplace. We are appalled that the State would make such a bold andunsupported claim, and we advise the State to refrain from makingsimilar disingenuous arguments in the future.

We also note that the State argues that any failure to conducta preliminary investigation was harmless. A defendant is entitledto representation at every critical stage of any trial proceeding,and this right to counsel attaches when a defendant files a motionto withdraw his guilty plea. People v. Vaughn, 200 Ill. App. 3d765, 771 (1990). The problem with the State's harmless errorargument is that many of the alleged instances of ineffectiveassistance of counsel that defendant has raised occurred outsidethe presence of the trial court. Thus, the trial court was not ina position to evaluate defendant's claims based on facts that werewithin the trial court's knowledge. See People v. Coleman, 158Ill. 2d 319, 351-52 (1994)(noting that the trial court was in aposition to evaluate whether the defendant's trial counsel wasineffective because the trial court observed the entire trial). When the trial court here denied defendant's pro se motion towithdraw his guilty plea, the trial court had to rely on thepresentation of defendant's case presented without the benefit oflegal counsel. Defendant did not have the assistance of counsel tocross-examine Kotlarz and test the truthfulness of Kotlarz'sclaims.

Accordingly, we reverse the order of the circuit court of LakeCounty denying defendant's motion to withdraw his guilty plea, andwe remand this cause for further proceedings in front of adifferent judge where defendant can proceed with his motion towithdraw his guilty plea pursuant to the guidelines set forth inJackson, 131 Ill. App. 3d at 139.

Reversed and remanded.

HUTCHINSON, P.J., and BOWMAN, J., concur.