Prayer For Leave To Appeal

Petitioner, Richard Wanke, pursuant to Supreme Court rule 315, respectfully petition this

Honorable Court for leave to appeal from the decision of the Appellate Court, 2nd

District.

Judgment Below

The Appellate Court issued its decision in this case on August 4, 2010. (A-2) Petitioner,

Richard Wanke filed a petition for rehearing on November 15, 2010. His petition for

rehearing was denied on January 4, 2011.

Points Relied Upon

For Review Of Judgment Of The Appellate Court

The sixth amendment to the Constitution accords criminal defendants the right to

effective assistance. Wyatt v. U.S. 574 F. 3d 455 (2009). Criminal defendants are

guaranteed effective assistance of counsel at all stages of the proceedings against them:

this right includes the right to representation that is free from conflict of interest. Hall v

U.S. 371 F. 3d 969 (2004).

In People v. Jocko, 389 Ill.App.3d 247, 259-60, 329 Ill.Dec. 193, 906 N.E.2d 38, 48

(2009), the Appellate Court held that in the interests of judicial economy, the trial court is

required to conduct a Krankel inquiry, before trial, into pro se defendant claims of

ineffective assistance of counsel. The Illinois Supreme Court subsequently reversed that

holding, because "until the proceedings have concluded, there is no way to determine if

counsel's errors affected the outcome and, therefore, no way of establishing prejudice

under Strickland v. Washington, 466 U.S. 688, 80 L. Ed. 2d 674, 104 S. Ct, 2052 (1984)".

This Court held that under Strickland, a defendant alleging ineffective assistance of

counsel must show a reasonable probability that but for a counsel's unprofessional errors,

1
the outcome of the proceeding would've been different, People v. Jocko, No. 108465, slip

op. at 4-5 (Ill. S. Nov. 18, 2010). But, the Court, in Jacko, also notes:

The state does not dispute that there may be some instances when a circuit court is
obligated to investigate potential sixth amendment violations prior to trial, but the State
observes that these are instances where the circuit court is not required to consider the
possible prejudicial effect on the outcome of the proceedings. See, e.g., Holloway v.
Arkansas, 435 U. S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173 (1978) (when a potential
conflict of interest is brought to the court's attention at an early stage, the court is
obligated to either appoint separate counsel or take adequate steps to ascertain whether
the risk of conflict is too remote to warrant separate counsel); United States v. Cronic,
466 U. S. 648, 80 L. Ed. 2d 657, 104 S. CT. 2039 (1984) (complete deprivation of
counsel). People v. Jocko, No. 108465, slip op. at 4 (Ill. S. Nov. 18, 2010).

The defendant's case is precisely such an instance. The trial court repeatedly failed to

adequately ascertain whether the conflict of interest between defendant and counsel

before trial posed a potential 6th amendment violation. The court then failed to eliminate

the conflict when neglect first manifested and prejudice to the defendant resulted. This

claim also meets the two-part test set forth in Cuyler v. Sullivan, 466 U. S. 335, 100 S.

Ct. 1708, 64 L.E.d.2d 333 (1980), Defense counsel operated under (i) an actual conflict

that (ii) adversely affected his performance. Id at 348.

Counsel has the constitutional and professional obligation to conduct an investigation

into potential mitigating evidence. If counsel conducts an inadequate investigation, “that
fact would have no affect on the deficient conduct prong of Strickland because counsel
had already demonstrated ineffectiveness by failing to thoroughly investigate the
existence of mitigating factors.” Summerlin v. Schriro, 427 F.3d 623 (9th Cir. 2005).

Neglect resulted when Attorney Clark failed to properly investigate defendant’s date

of prior conviction and resulted in prejudice to Mr. Wanke. Clark’s conflict of interest

was allowed to fester and grew disproportionately harmful, also in part, because too

many judges handled the case at different stages over 2 1/2 years unaware of what

transpired between the parties prior to their rulings. This was a case involving

circumstantial evidence, which if properly challenged could have resulted in the

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defendant being found not guilty. The trial court's failure to appoint different counsel

deprived the defendant of his right to effective assistance of counsel.

The defendant was also improperly given an extended-term sentence because the

four attorneys and 2 of the 3 judges assigned to this case either did not know how to

correctly toll the 10-year limitation period imposed in section 5–5–3.2 (b) (1) of the

Unified Code of Corrections, or else chose to ignore it once the parties researched

interpretation of the statute.

The plain language of the Illinois Code of Criminal Procedure of 1963 (the Code)

authorizes an extended-term sentence based on a defendant’s prior criminal conviction

within the preceding 10 years, excluding time spent in custody. The statutory definitions

of the Code support the view that, for the purposes of section 122–1 (c) of the act, “date

of conviction” means the date that the sentence was entered, because that date includes

the sentence pronounced by the court. This interpretation of the 10-year limitation period

imposed in section 5–5–3.2 (b) (1) of the Unified Code of Corrections was set out in

People v. Lewis, 211 Ill. App. 3d 276, 281, 569 N.E.2d 1221, 1225 (1991), and in People

v. Robinson, 91 Ill. App. 3d 1128, 1130, 414 N.E.2d 1335, 1336 (1980), aff'd, 89 Ill. 2d

469, 433 N.E.2d 674 (1982), and has since been adhered to by the Court. People v.

Lemons, 191 Ill. 2d 155, 159 (2000).

On August 7, 2008, section 5–5–3.2 (b) (1) of the Unified Code of Corrections was

improperly applied to the defendant, Richard Wanke, as the trial court relied upon

inaccurate dates of his prior and current convictions which fell outside the 10-year

limitation contained in the statute.

Statement Of Facts

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 Richard Wanke was convicted by a jury trial in 1995, of a nonviolent burglary in

DeKalb County, Illinois which arose from 1991, and served 3 years for that conviction.

He was separately convicted on a similar charge which arose in Winnebago County,

Illinois from those same incidents, and also served his time for that conviction before it

was overturned by the Appellate Court and remanded back for re-trial to Winnebago

County in 2000. (December, 21, 2006, Trial Transcript, pages 2 - 4). The defendant

waited six years for Winnebago County to retry him; remaining in the same jurisdiction

and reporting frequently to court as required. (December, 21, 2006, Trial Transcript,

pages 2 - 4). His arrest in the current case occurred on routine status for that remanded

hearing. The remanded case was never tried, but was finally dismissed on August 21,

2008. (March 13, 2006, Trial Transcript, page 8, and August 21, 2008, Trial Transcript,

page 3).

Mr. Wanke was appointed Attorney Greg Clark, for the current case; the same

attorney he had for six years on the remanded case and who regarded it as a low priority.

(March 14, 2007, Trial Transcript, page 3). Attorney Clark, first had him evaluated for an

insanity defense (March 13, 2006, Trial Transcript, page, 3), then on July 12, 2006, set

the case for trial as early as October 2, 2006. Mr. Wanke later asserted that all Clark

wanted to discuss with him was an insanity defense or plea. (May 7, 2007, Trial

Transcript, page 19). Mr. Wanke had an alibi defense which he wanted to present in the

current case where the evidence against him was circumstantial. The defendant's behavior

throughout the proceeding did not indicate that he was insane. He and his attorney

disagreed, but Mr. Wanke was always, as Clark admitted, respectful to him and to the

court and factual in his characterizations of the conflict. If either one had resentment

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toward the other; it was Clark whose actions tend to show that he subsequently

personalized the conflict between himself and his client; not Mr. Wanke.

On January 17, 2006, Professor McCauley, returned to his campus office only to see

an individual leaving it with his laptop under his arm. (September 18, 2007, Trial

Transcript, page 147). Professor McCauley, pursued the laptop and managed to grab onto

some portion of the it. (September 18, 2007, Trial Transcript, page 148). McCauley, was

unable to see the man's face. (September 18, 2007, Trial Transcript, page 148). Professor

McCauley, testified that he was dragged by the man holding the other end of the laptop

perhaps 30 feet down a hall to the outside as he continued to hold on to the laptop.

(September 18, 2007, Trial Transcript, page 148). Professor McCauley, said he was not

harmed by the individual, and that once outside, the man gently placed the laptop down

upon the ground and walked away. (September 18, 2007, Trial Transcript, page 149).

Roncal, a part-time, campus security guard, followed the man in his car and saw him get

in a minivan parked nearby. (September 18, 2007, Trial Transcript, pages 188 - 190, and

February 14, 2007, Trial Transcript, page 32). Roncal, pursued the van in his car until the

vehicle left the campus grounds (September 18, 2007, Trial Transcript, pages 198).

Roncal initially said it took him 10 to 15 minutes to identify the defendant from six

photographs in a photo lineup. (February 14, 2007, Trial Transcript, page 44).

Attorney Clark saw the attorney-client relationship between himself and his client

deteriorate since July 2006, but delayed notifying the court. (March 14, 2007, Trial

Transcript, page 3). Clark put the case onto a fast trial track beginning with October 2,

2006, despite not being ready for a trial. (July 12, 2006, Trial Transcript, page 2). On

March 14, 2007, Clark unnecessarily forced the court to consider his request to withdraw

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from the case with trial scheduled. Judge Prochaska's comments denying Clark

permission to withdraw as defendant's counsel show that he did not want to delay the

case. (March 14, 2007, Trial Transcript, pages 4, 10, 12, 13).

Prochaska’s conclusion on page 9 of the March 14, 2007 transcript, that the problems

in communication were, "all on you" (alluding only to Mr. Wanke) was not correct, since

Mr. Wanke vigorously contested the allegations of his attorney. Both defendant and

attorney alleged that each was responsible for the breakdown in communication and each

was willing to prove this. Attorney Clark saw the conflict between himself and his client

as an "irretrievable breakdown in communication". (March 14, 2007, Trial Transcript,

page 3). Judge Prochaska could have resolved the issue pretrial by granting Clark’s

motion to withdraw or inquiring further. (March 14, 2007, Trial Transcript, page 5).

Clark always put all blame upon his client, (March 14, 2007, Trial Transcript, page

6), and, Judge Prochaska gave undue deference to Clark's assertions and admonished the

defendant that it was all on him to prepare for trial. He gave no credence to Mr. Wanke's

counter-allegations that Clark was also at fault. (March 14, 2007, Trial Transcript, pages

9, 10,). Clark later conceded that Mr. Wanke not only met with him to review on the

afternoon of March 26, 2007, as directed by the court, but also produced at least one

witness to him for trial preparation. (May 7, 2007, Trial Transcript, page 9, 17).

From March 28, 2007, to April 18, 2007, Clark tried to get Mr. Wanke to cop a plea.

On May 3, 2007, Clark, said that with no deal, he was ready for trial (May 3, 2007, Trial

Transcript, page 3), but, he initiated an unscheduled appearance for May 4, 2007. On

May 4, 2007, Clark and the State appeared before Judge Prochaska, who was

uncomfortable discussing a problem ex-parte (outside) of the defendant's presence. (May

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7, 2007, Trial Transcript, pages 8). Clark confessed that prior to conducting plea

negotiations with the State, he failed to research his client's eligibility for probation and

extended-term sentencing despite being tipped off by the plea offer from the State that

both might be an issue for his client. He blamed his client for his neglect saying he wrote

Mr. Wanke, for the date and why the State was referring to extended-term sentencing in

it's offer and that his client was non-responsive. (May 7, 2007, Trial Transcript, pages 2.

3). Yet, independent of his client, he was able to find the information when he actually

sat down to prepare motions in limine. (May 4, 2007, Trial Transcript, page 3)

Clark disguised his error, by stating that the important fact was that he had wrongly

led his client to believe that he was eligible for probation and thus left him no time to

consider accepting the favorable plea offer from the state. (May 4, 2007, Trial Transcript,

pages 3, 4). Again, Clark, blamed miscommunication as the reason why they were

discussing this important matter in court without the presence of the defendant. (May, 4,

2007, Trial Transcript, pages 4, 5). He also faulted him for failing to provide him with

originals of documents which Clark already knew the state would require but had still

neglected to get from his client. (May 4, 2007, Trial Transcript, pages 4, 5).

The defendant appeared on May 7, 2007, but was not advised that everyone else met

the day before or told what transpired in his absence and it's significance to him. The

defendant was set on going to trial, but Clark was not. (May 4, 2007, Trial Transcript,

page 8). The state asked for a delay to receive originals from the defense. Over an

argumentative interjection by Clark, the issue was resolved by assurances from Mr.

Wanke that he had no problem with quickly providing them to his attorney. (May 4,

2007, Trial Transcript, pages 2-8). When the trial obstacle was removed, Clark

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immediately indicated to the court that he was seeking a continuance. He began a long

tirade citing the behavior of his client as the basis for not being prepared to proceed to

trial the next day. Clark renewed his motion to the court to be allowed to withdraw as

counsel to the defendant. He renewed his previous allegations of noncooperation, non-

communication, and blamed his client while accusing him of obstructing him in trial

preparation. The court questioned him a bit as to whether the blame should rest all on his

client, but continued to hear him out. (May 4, 2007, Trial Transcript, pages 8 - 12).

Clark, claimed, "I have been left out of the loop. And I am not used to that, I don't like it,

and I feel that whatever communication problem he has with me, is significant, and I

think I should be allowed to withdraw."(May 7, 2007, Trial Transcript, page 13)

The court asked what more he required to be ready for trial. (May 7, 2007, Trial

Transcript, page 17 - 18). Clark wanted time to get correct information to his client. (May

7, 2007, Trial Transcript, page 16-18). Mr. Wanke said that all Mr. Clark wanted was for

him to plea, and he no longer trusted the accuracy of the information he gave to him,

because it "...vacillates between a slap on the wrist and 30 years", and always came down

to him taking a plea. (May 7, 2007, Trial Transcript, page 19). The defendant believed

that his prior date of conviction was December 15, 1995, and did not understand why it

would be otherwise. (May 7, 2007, Trial Transcript, page 21-22). The judge said," You

know, it's sad that we're talking about it a year and a half after the date (case start,

added)..." but didn’t tell Mr. Wanke why his prior conviction might still fall within the 10

year time period for extended term sentencing. (May 7, 2007, Trial Transcript, page 23)

Judge Prochaska then lost his patience. (May 7, 2007, Trial Transcript, page 23, 24)

He manipulated the defendant into not accepting any plea and instead demanding

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immediate trial. (May 7, 2007, Trial Transcript, page 24). Clark's only reaction to what

the judge did was his response, "Not a chance, judge," when Prochaska, asked if he

would raise a plea deal again to his client (May 7, 2007, Trial Transcript, page 24).

On May 7, 2007, the defendant tried to submit his pro se motion on witness

tampering, but it wasn’t accepted. Clark intercepted the motion and objected to it. The

defendant was instead advised to review it with his attorney and did so but was ultimately

forced to submit it pro se after the trial due to Clark's failure to submit it. (May 7, 2007,

Trial Transcript, pages 27, 28, and, November 5, 2007, Trial Transcript, pages 13, 18)

The defendant’s motion for ineffective assistance of counsel was sandwiched into a

November 5, 2007, posttrial motion for a new hearing before Judge Truitt. Clark had the

defendant to address his motion for ineffective counsel himself. (November 5, 2007, trial

transcript, pages 3-4). Judge Truitt denied the motion, stating that Mr. Clark performed

"wonderfully" at trial, and that, defendant failed to meet the first prong of the Strickland

standard. (November 5, 2007, trial transcript, page 16).

Mr. Wanke raised a number of deficiencies in his attorney's representation. (Petition

for Rehearing, pages 17 – 21, A-3). His attorney failed to subpoena any of the witnesses

he wanted at sentencing in his behalf. (November 5, 2007, Trial Transcript, pages 4, 5,

19, 20, 22). His conviction was circumstantial and challenging witness identification was

vital (November 5, 2007, Trial Transcript, pages 7, 9). He listed the prosecution's

witnesses who changed their testimony and identification of the suspect, (from wearing

glasses to no glasses, from hat to no hat, clothing worn, and varying physical

descriptions) which went unchallenged by Clark prior to and during trial. (November 5,

2007, Trial Transcript, pages 6, 7). He pointed out that Barry Roncal, the main

9
identification witness gave three different unresolved versions about his interception of

and observations of the suspect. He noted the defense did not get or challenge the

transcript of the dispatch and the 911 calls it requested pretrial from the prosecution.

(Petition for Rehearing, pages 17 – 21, A-3). And, his attorney failed to flesh out the case

to the juror by pointing out the dearth of physical evidence connecting him to the laptop

and questioning the reason for the delay between the burglary on January 16, 2006, and

his arrest on March 2, 2006 (November 5, 2007, trial transcript, pages 4 -11). Clark

objected that the allegations were too general, intolerable, and non-productive.

(November 5, 2007, trial transcript, page 12). When the court ignored his objections, he

claimed attorney-client privilege. (November 5, 2007, trial transcript, page 12).

The defendant also alleged that his attorney withheld evidence of witness tampering,

which was actually a motion in limine. (See Petitioner's Exhibit A-1 ). The state

questioned one of his two trial witnesses under circumstances where he alleged she was

improperly intimidated. If he had been able to present the motion pretrial and get the

subject matter excluded, he might have been able to avoid impeachment of his witness by

Ms. Zerouali at trial. The defendant stressed the importance this played in affecting the

minds of the jurors and their trial decision, given the strictly circumstantial nature of his

case. (November 5, 2007, trial transcript, pages 13 -16).

The State provided information regarding defendant's eligibility for extended-term

sentencing to Judge McGraw at sentencing on August 7, 2008. That information

consisted, in part, of State's Exhibits 37A, B and C. These exhibits are not the possession

of the petitioner, but he relies upon the description of their contents which is contained on

pages 19 and 20 of the August 7, 2008, trial transcript indicating that exhibits A and B

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are a certified copy of conviction from DeKalb County, Illinois, and the Dekalb County

Circuit Clerk's minute and docket entries in that case, respectively, and that Exhibit C is a

copy of a fax from a supervisor at IDOC of his incarceration dates on 91-CF-323.

According to the State, it's Exhibits 37 A and B show that the defendant's DeKalb

County crime was committed in June and September of 1991, and that he was found

guilty by jury verdict on December 13, 1995. They state Wanke was sentenced initially

on May 29 of 1997, but the mittimus was stayed pending appeal, and his DeKalb County

date of conviction was only entered on November 16, 1999, after the return of the

mandate from the Appellate Court. State's Exhibit 37 C shows Wanke was incarcerated

November 10, 1999 - May 26, 2000. (August 7, 2008, Trial Transcript, pages 19 - 20)

On May 17, 2007, the court discussed and disputed State's Exhibit 37A, the DeKalb

County Certification of Conviction. Judge Prochaska, found the information to be

unreliable, and told Prosecutor Zerouli, that "if we go to trial, I'm not going to allow you

to use the prior conviction to impeach him, and I'm not going to allow that prior

conviction to be used to enhance his sentence based on that docket. I'm not going to allow

that to be done...It's too unclear."(May 17, 2007, Trial Transcript, page 11).

Prosecutor Tiffany Davis, did not advise Judge McGraw, on August 7, 2008, of Judge

Prochaska's intention not to rely upon State's Exhibit 37A to impose extended-term

sentencing on the defendant. Davis, did advise Judge McGraw, of the holding in People

v. Lewis, 211 Ill. App. 3d 276, that "it is clear from the language of section of the code

that the 10-year period runs from conviction to conviction." and, that the statute

definitions and Illinois caselaw interpret a defendant's date of conviction to consist of

both a finding of guilt, along with the sentence pronounced by the court. (August 7, 2008,

11
Trial Transcript, page 24). Davis also advised Judge McGraw, that Judge Truitt, entered

a judgment of conviction on 06-CF–405 (defendant's current case) on September 19,

2007, the same day of the jury verdict finding Wanke him guilty in the case, but

obviously this date did not include the sentence of the court which McGraw, was about to

pronounce. (Emphasis added.)(August 7, 2008, Trial Transcript, page 23).

On August 7, 2008, Judge McGraw, improperly found Richard Wanke eligible for

extended term sentencing without identifying either of the dates of defendant's prior or

current convictions relied upon in order to find the defendant eligible for extended term

sentencing. The defendant maintains that his prior date of conviction was May 29, 1997,

and that to rely upon the 1999 date is to penalize him for exercising his right to appeal his

case to the Appellate Court, and for resultant bureaucratic delay over which he had no

control. The defendant maintains that his current date of conviction is August 7, 2008,

which is the earliest date to contain both his guilty verdict and the sentence of the court.

Argument

The Court’s holding places an emphasis on the outcome, per Strickland, but the Court, in

Jacko, also notes:

The state does not dispute that there may be some instances when a circuit court is
obligated to investigate potential sixth amendment violations prior to trial, but the State
observes that these are instances where the circuit court is not required to consider the
possible prejudicial effect on the outcome of the proceedings. See, e.g., Holloway v.
Arkansas, 435 U. S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173 (1978) (when a potential
conflict of interest is brought to the court's attention at an early stage, the court is
obligated to either appoint separate counsel or take adequate steps to ascertain whether
the risk of conflict is too remote to warrant separate counsel); United States v. Cronic,
466 U. S. 648, 80 L. Ed. 2d 657, 104 S. CT. 2039 (1984) (complete deprivation of
counsel). People v. Jocko, No. 108465, slip op. at 4 (Ill. S. Nov. 18, 2010).

The defendant's case underscores the importance of the courts recognizing that the 6th

amendment right to counsel extends to the full scope of the proceeding, not just the trial,

12
and that neglect can cause prejudice at other points along the way. Without adequate

pretrial inquiry, neglect, particularly when caused by a conflict between the defendant

and his counsel may affect the outcome indirectly, if not directly.

Counsel has the constitutional and professional obligation to conduct an investigation

into potential mitigating evidence. If counsel conducts an inadequate investigation, “that
fact would have no affect on the deficient conduct prong of Strickland because counsel
had already demonstrated ineffectiveness by failing to thoroughly investigate the
existence of mitigating factors.” Summerlin v. Schriro, 427 F.3d 623 (9th Cir. 2005).

Per Summerlin v. Schiron, neglect in this case resulted when Attorney Clark failed to

properly investigate defendant’s date of prior conviction, resulting in prejudice to the

defendant. The trial court repeatedly failed to adequate to ascertain if the pretrial conflict

of interest between defendant and counsel posed a 6th amendment violation. The court

failed to eliminate the conflict when neglect first manifested and more prejudice to the

defendant resulted. This claim also meets the two-part test set forth in Cuyler v. Sullivan,

466 U. S. 335, 100 S. Ct. 1708, 64 L.E.d.2d 333 (1980), Defense counsel operated under

(i) an actual conflict that (ii) adversely affected his performance. Id at 348.

On May 7, 2007 Clark's conflict of interest was completely out in the open, when he

showed he now regarded the relationship problem with his client as personal, and an

affront to himself. Ignoring the damage to his client’s interests and reputation, Clark felt

compelled enough by self-interest to assert to the court, without explaining the

improbable reason why his client (with an alibi defense to offer in a circumstantial case)

would gain by doing so, his paranoid belief that Mr. Wanke was deliberately trying to set

him up for a later claim of ineffective assistance of counsel against him. Clark's repeated

accusations against his client had so influenced the court's perception of the defendant in

a negative manner, that the court did properly discern that regardless of what Clark

13
asserted, his loyalty to his client was irretrievably severed and he was no longer objective

about his client. He was no longer capable of handling the conflict between his own

interests and protecting those of his client's. There is no satisfactory explanation for the

court's failure to remove Clark when his conflict was previously revealed, emotions and

poor judgment were now involved, and neglect had occurred.

The Appellate Court holds it is poor public policy to allow a defendant to first

manufacture error and then benefit from it by receiving a new trial on appeal. But clients

don’t deliberately junk a case in which they have a defense hoping results will be more

favorable for them down the road. This argument also cuts both ways. If an attorney has a

conflict of interest with a client and puts his own self interests before theirs, then,

whenever it’s presumed the attorney is credible over evidence to the contrary or repeated

denials from the defendant, the court gives counsel carte blanche to reduce the credibility

of his own client to serve counsel's own interests. This allows neglect which may or may

not affect the outcome, but leaves the defendant defenseless if the court turns a deaf ear

and fails to adequately investigate possible legitimate concerns. Clark’s conflict of

interest, for example, was allowed to fester and grew disproportionately harmful.

The Appellate Court was also duped by the "red herring" of the escalating dramatics

between counsel and defendant when it held that the trial court's determination that the

defendant was all to blame for this conflict is not against the manifest weight of the

evidence. The on-going blame game could have been avoided had the trial court properly

accepted Clark's opinion as counsel on March 14, 2007, and removed him when he first

cited the conflict between himself and Mr. Wanke as an "irretrievable breakdown in

communication" (March 14, 2007, Trial Transcript, page 3). As the Supreme Court stated

14
in Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978), an

attorney is usually in the "best position" to know when a conflict exists or might develop,

and such admissions carry great weight particularly when made at the time of trial. Id at

485. Admissions made after trial are more suspect for obvious reasons. Clark's method of

presenting his motion to withdraw should have alerted the court that Clark possibly had a

"conflict of interest" given the counter-allegations of his client, because Clark put all

blame on his client and the defendant was disputing this.

Clark appears to have been trial-shy. Nothing else explains why he tried so hard, so

long to persuade his client to accept a plea deal to resolve the case instead of simply

preparing upfront an uncomplicated defense in a relatively simple burglary case

composed of circumstantial evidence. Using the court’s admonishments, Clark was also

indirectly alleging that his client was not responding to his case direction for his own

purposes while at the same time forcing his client to become more amendable to him and

a plea deal in applying the full weight of the court on him. His "blame maneuver" served

to focus the court's criticism upon his client and away from questioning his lack of trial

preparation as counsel on that date and each time he repeated the maneuver.

Rather than seizing on the momentum of meeting with his client on March 26, 2007,

and with information for trial preparation, Clark's actions from March - April 2007,

reveal his immediate goal to use it to persuade his client to accept a plea deal. He tried so

hard, that he engaged in plea negiotations without first determining his client's date of

prior conviction and how it related to his eligibility for probation and extended-term

sentencing. He discovered this the day before trial. While it was bad news which he could

not hope to hide from the court or his client, he saw in it one more opportunistic chance

15
to persuade his client to reconsider a plea deal to avoid trial.

The court had several key opportunities to reinvestigate the basis of it's refusal to

permit Clark to withdraw as defendant's counsel. May 3-4, 2007 are two related instances

when the blame is obviously not "all" on the client. Clark was performing contortions in

front of the court by maintaining that his client had a duty to advise him, which he

probably did not want his client to witness or contradict. Clark was clearly conflicted

when, having made such an elementary err regarding his client's prior date of conviction,

he feels it necessary to protect his reputation and blame his client to explain away the

unreasonableness of his lack of preparation. Aware of the contentious nature of the

relationship between Mr. Wanke and Mr. Clark, and because he did not permit Mr. Clark

to withdraw on March 14, 2007, as he requested, Judge Prochaska was obligated to

conduct a Krankel inquiry when he was advised on May 4 and 7, 2007, by attorney Clark,

that the non-communication problem between him and his client was not only still

ongoing but had snowballed into serious neglect of his client’s interests. Instead, the

court was unhappy with potential delay but accepts Clark's excuses and apologies without

questioning events despite Clark's admission of neglect and that his client has suffered a

jeopardy. (May 4, 2007, Trial Transcript, page 9).

Judge Prochaska manipulated the defendant into stating for the record said he would not

accept a plea and was insisting on immediate trial. Clark should have intervened and

pleaded the jeopardy to his client, but because he was conflicted, his hands were tied. He

had avoided a lot of explanations to his client who had now stated that he no longer

trusted him. The efforts required to overcome that distrust would completely reveal the

extent and multitude of his failings. So, Clark, chose not to protect his client, but to

16
abrogate his duty altogether, revealing in his response, "Not a chance, judge," a certain

degree of satisfaction that his "unreasonable client" is getting shafted by the judge. This

was an ultimate display of conflict causing neglect and resulting in prejudice to the

defendant, and denying adequate representation guaranteed him by the sixth amendment.

The trial court exercised its discretion to turn sadistic, and the defendant was completely

unaware that he was unprotected and harmed by both the court and his attorney.

Judge Truitt, was privy to prior events between the parties. Judge Truitt, may have

reviewed Clark's March 14, 2007, Motion to Withdraw, but wasn’t familiar with the pre-

trial conflict between Clark, and Wanke before ruling on the Wanke’s post-trial motion

for ineffective counsel. The trial court erred because it was not sufficiently familiar with

the whole case record and improperly used Strickland rather than Krankel in evaluating

the merits of defendant's post-trial claims of ineffective assistance of counsel.

Judge Truitt applied the Strickland standard to Mr. Wanke's motion of ineffective

assistance of counsel on November 5, 2007. His quick dismissal of the defendant’s

posttrial claim of ineffective assistance reflected the bias of his perspective of the case

before him. Judge Truitt, saw a trial in which there was no outward appearance of

animosity between the defendant and his attorney. The defendant completely deferred to

his attorney's strategy at trial despite having strong reservations about it at many points,

as shown by the number of and nature of the deficiencies he later raised. Judge Truitt,

was not inclined to set aside his misconceptions about the Clark-Wanke relationship to

properly investigate to see if the defendant's claims justified applying the Krankel

standard, but he might have done so if he had witnessed pretrial events.

On November 5, 2007, when asked by the court, Mr. Wanke verbally raised a number

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of deficiencies in support of his motion of ineffective counsel. Mr. Wanke had to argue

his own basis for his motion of ineffective assistance of counsel without prior notice, and

he did a remarkable job from memory. He raised relevant issues while still courteous to

his attorney and the court. He did not rehash the pretrial disputes or the personal

accusations which Clark raised against him pre-trial as most defendants would have done.

"Moreover, a verdict or conclusion only weakly supported by the record is more likely to

have been affected by errors than one with overwhelming record support." Strickland,

466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. The defendant's case is a

conviction obtained only by circumstantial evidence weakly supported by the record and

more likely to be affected by counsel errors. Clark had also obstructed the defendant's pro

se motion on witness tampering, which could have altered the jury outcome. The trial

court failed in multiple instances to exercise it’s duty to ensure adequate representation to

the defendant.

The second issue here is that the sentencing court erred in finding the defendant

eligible for extended term sentence under section 5–5–3.2 (b) (1) of the Unified Code of

Corrections 730 ILCS 5/5–5–3.2 (b) (1) (West 1998). This section allows for imposition

of an extended-term sentence based upon the defendant's prior conviction when:

"[A] defendant is convicted of any felony, after having been previously convicted in
Illinois or any other jurisdiction of the same or similar class felony or greater class
felony, when such conviction has occurred within 10 years after the previous conviction,
excluding time spent in custody, and such charges are separately brought and tried and
arise out of a different series of acts[.]730 ILCS 5/5–5–3.2 (b) (1) (West 1998).

"...The Act does not define the "date of conviction" or the term "conviction." See 725

ILCS 5/122-1 et seq. (West 1996) . The Act is part of the Code of Criminal Procedure of

1963. (the Code) (725 ILCS 5/100-1 et seq. (West 1996)). The code does not define the

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term "conviction." See 725 ILCS 5/100-1 et seq. (West 1996). The Code does instruct

that a word with no definition may be given the meaning ascribed to it in article 2 of the

Criminal Code of 1961 (720 ILCS 5/2-5 et seq. (West 1996)). 725 ILCS 5/102-2 (West

1996). That article defines the term "[c]onviction" as "a judgment of conviction or

sentence entered upon a plea of guilty or upon a verdict or finding of guilty of an offense,

rendered by a legally constituted jury or by a court of competent jurisdiction authorized

to try the case without a jury." In addition, the Code defines the term "[j]udgment" as "an

adjudication by the court that the defendant is guilty or not guilty and if the adjudication

is that the defendant is guilty it includes the sentence pronounced by the court."

(Emphasis added.) 725 ILCS 5/102-14 (West 1996). These statutory definitions support

the view that, for the purposes of section 122–1(c) of the Act "date of conviction" means

the date that the sentence was entered, because that date includes the sentence

pronounced by the court. The defendant maintains that May 29, 1997, is his prior date of

conviction, and August 7, 2008, is his current date of conviction as those two dates fit the

criteria of the statute above by encompassing both a guilty verdict and sentence. As the

time span between both of his convictions exceeds 10 years, the defendant is not eligible

for extended-term sentencing and was improperly sentenced both in length of sentence

and in the manner used by the sentencing court. Judge McGraw should have identified

both "dates of conviction" he relied upon for his determination that Richard Wanke was

eligible for extended-term sentencing, as well as the calculation he made, but he did not.

November 16, 1999, cannot be applied to extended-term sentencing for the defendant.

The extended term sentencing provision is intended to penalize recidivism, but the rule of

lenity requires penal statutes to be strictly construed in favor of the defendant. While the

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Illinois Supreme Court has time-after-time added any delay in the occurrence of a date of

conviction which is attributable in some manner to a defendant's wrongdoing: for

example, a defendant's purposeful violation of his probation, as in People v. Lemons, 191

Ill. 2d 155, 159 (2000) defendant's federal conviction in People v. Harden, 133 Ill. 2d at

22 (1986) (Emphasis added.), legislative intent cannot be to penalize a defendant who

exercised his right to appeal his conviction, only to fall victim to being penalized for the

vagrancies of over-long delays in the recording of its’ date.

Conclusion

Petitioner, Richard Wanke, was improperly sentenced to extended term sentencing, as

others in Winnebago County may also have been. He has served the full term of a proper

sentence, and should be immediately released pursuant to federal habeas. Petitioner’s

case should also be remanded for a new trial as he was erroneously deprived of his 6th

amendment right to effective assistance of counsel due to his attorney’s conflict of

interest.

Wherefore, petitioner, Richard Wanke, pursuant to Supreme Court Rule 315, respectfully

requests that this Court grant his petition for leave to appeal, and, upon a full hearing of

this case, reverse the appellate court judgment and remand the case for a new trial, find

him ineligible for extended term sentencing, and authorize his immediate release.

Date: March 7, 2011

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 APPENDIX

A-1 MOTION FOR WITNESS TAMPERING

A-2 APPELLATE COURT DECISION IN CASE NO 2-08-1031

A-3 DEFENDANT’S PETITION FOR REHEARING

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