No. 2-08-1031 IN THE APPELLATE COURT OF ILLINOIS SECOND JUDICIAL DISTRIC PEOPLE OF THE STATE OF ILLINOIS, Appeal from the Circuit Court of the Seventeenth Judicial Circuit Plaintiff-Appellee, Winnebago County, Illinois. as: No. 06 CF 405 RICHARD E. WANKE, Honorable Joseph G. McGraw, Defendant-Appellant. Judge Presiding PETITION FOR REHEARING RICHARD E. WANKE, Register No. K77902 Defendant-Appellant, Pro Se ‘Vienna Correctional Center 6695 State Route Hwy #146 East Vienna, IL, 62995 (779) 348-2487 ORAL ARGUMENT REQUESTEDPOINTS AND AUTHORITIES 7: Finding the defendant solely at fault for the communication Page breakdown between himself and his attorney was erroneous; and Judge Prochaska failed to exercise due diligence before denying Clark’s motion to withdraw and then failed to correct the error by conducting an adequate Krankel inquiry when the defendant was harmed in front of him... People v. Swanson, 322 Ill. App. 3d (3" Dist. 2001 ). People v. Boyd, 66 Ill. App. 3d (3 Dist. 1978).. People v. Peterson, 311 Ill. App. 3d (3" Dist. 1999)... People v. Thomas, 246 Ill. App. 3d (3 Dist. 1993)... People v. Largent, 337 Il. App. 3d (3" Dist.2003 ), People v. King, 366 Ill. App. 3d (3"* Dist.2006).. People v, Battles, 311 Ill. App. 34 (3 Dist. 2000)... People v. Jocko, 389 Il.App.34 (3 Dist. 2009)... 6,7 People v. Krankel, 102 Ill. 2d (2° Dist. 1984)... 1, 2,.7,8,15,27 218 People v. Moore, 207 Ill. 2d (2™ Dist. 2003). People v. Munson, 171 Ill. 2d (2" Dist. 1996).. TL. Judge McGraw improperly sentenced the defendant to the maximum of an extended term sentence without issuing factual findings to why he was eligible for extended term when the parties disputed the basis for a defendant’ eligibility for extended term at sentencing. People v. Lemons, 191. lll. 2d (2 Dist 2000). People v. Whitney, 288 Ill. 2d (2™ Dist. 1999)a. ‘The trial court erred because it was not sufficiently familiar with the whole case record and improperly applied Strickland standards rather than using Krankel in evaluating the merits of defendant’s posttrial claims of ineffective counsel. wee 5 Strickland v. Washington, 466 U.S. 668, (1984). 15,21,22 People v. Albanese, 104 Ill.2d (2 Dist. 1984)... Iv. The trial court abused its discretion in sentencing Mr. Wanke to the maximum extended term sentence when the nature and circumstances of the offense did not call for such a lengthy sentence, and where the court gave more weight to hearsay testimony when considering factors in aggravation then to known facts in the court record... [22 People v. Harris, 375 IlApp 34 (3" Dist. 2007)... ek People v. Kliner, \85 I. 24 (2" Dist. 1998)...NATURE OF THE CASE On August 4, 2010, the IL Appellate Court issued a Rule 23 Order affirming the defendant's conviction. The defendant hereby files this Petition for Rehearing on the grounds that the Appellate Court misapprehended important rulings in the case record related to the trial court’s abuse of discretion and overlooked contolling precedent in those instances. ISSUES PRESENTED FOR REVIEW 1. Whether finding the defendant solely at fault for the communication breakdown between himself and his attorney was erroneous; and whether Judge Prochaska failed to exercise due diligence before denying Clark’s motion to withdraw and then failed to correct the error by conducting an adequate Avamke/ inquiry when the defendant was harmed in front of him. 2. Whether Judge MeGraw improperly sentenced the defendant to the maximum of an extended term sentence without issuing factual findings to why he was eligible for extended term ‘when the parties disputed the basis for a defendant’ eligibility for extended tem at sentencing. 3, Whether the trial court erred because it was not sufficiently familiar with the whole case record and improperly applied Strickland standards rather than using Krankel in evaluating the merits of defendant's posttrial claims of ineffective counsel. 4. Whether the trial court abused its discretion in sentencing Mr. Wanke to the maximum extended term sentence when the nature and circumstances of the offense did not call for such a lengthy sentence, and where the court gave more weight to hearsaytestimony when considering factors in aggravation then to known facts in the court record. ARGUMENT L FINDING THE DEFENDANT SOLELY AT FAULT FOR THE COMMUNICATION BREAKDOWN BETWEEN HIMSELF AND HIS ATTORNEY MISAPPRENDS THE TRIAL RECORD. JUDGE PROCHASKA FAILED TO EXERCISE DUE DILIGENCE BEFORE DENYING CLARK’S MOTION TO WITHDRAW AND THEN FAILED TO CORRECT HIS ERROR AND CONDUCT AN ADEQUATE KRANKEL INQUIRY WHEN THE BREAKDOWN IN COMMUNICATION HARMED THE DEFENDANT BEFORE HIM. ‘A court abuses its discretion if the decision has no basis in "facts, logic, or reason but is arbitrary, unreasonable, or unconscionable." People v. Peterson, 311 Ill. App. 34 at 45, 725 N.E.2d at 7. The court must use “sound judicial discretion." People v. Thomas, 246 lll. App. 3d 708, 715, 616 N.E.2d 695, 700 (1993); People v. Boyd, 66 Il. App. 3d 582, 588, 384 N.E.2d 414, 419 (1978). "A trial court abuses its discretion when it makes a decision that is ‘clearly against logic." People v. Largent, 337 Ill. App. 3d at 839, 786 N.E.2d at 1106, quoting Bodine Electric of Champaign v. City of Champaign, 305 Ill. App. 3d 431, 435, 711 N.E.2d 471, 474 (1999). Judge Prochaska did not find fault on both sides of the attomey-client relationship, but expressly determined that, “it’s all on you, “Every bit of it is on you”, placing all blame on the defendant, Richard Wanke and no fault on his attorney, Greg Clark, for the breakdown in communication between them and the resulting problems. Yes, Mr. Clark did spend a lot of time on record before trial attributing blame in ‘communication and non-cooperation to his client. But the record is shows that on March 14, 2007, and May 5, 2007, the defendant spoke up in his own defense to notify thecourt that the blame was not one-sided. The defendant defended himself in court, counter-alleged bad faith on the part of his attorney, and the record shows Judge Prochaska failed to conduct a sufficient inquiry to support the certainty of his conclusion that the problem was solely attributable to the defendant’s actions. Attomey Clark characterized the conflict from the outset to Judge Prochaska as an “irretrievable breakdown” in communication, (March 14, 2007, trial transcript, page 3) and alleged non-communication on the part of his client. The defendant, on pages 4 and 5 of the March 14, 2007, trial transcript not only disagreed with those assertions regarding his conduct, but was willing to provide evidence that Clark was not ‘communicating with him: ‘THE COURT: Mr. Wanke are you having trouble communicating with your attorney? ‘THE DEFENDANT: I don’t know what he's talking about, sir. ‘THE COURT: Has he, like, written to you and you haven't responded? THE DEFENDANT: No. THE COURT: Does he have your phone number? THE DEFENDANT: Yeah. ‘THE COURT: Have you tried to call him on the phone Mr. Clark? MR. CLARK: Many times. I've left— ‘THE DEFENDANT: That's not accurate. MR. CLARK: I left voice mail, honor. ‘THE DEFENDANT: That's not accurate. MR. CLARK: I can document. If you want to have a hearing, Judge, I'l document exactly my correspondence, exactly my dates of — THE DEFENDANT: I have a roommate. I can bring witness, too. Judge 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) is neither factual or logical, when Mr. Wanke stood there right in front of him contesting the allegations of his attomey. As both defendant and attomey alleged that each was responsible in some part for the breakdown in communication and each was willing to prove this, Judge Prochaska had the opportunity in advance of trial to resolve the issue either by granting Clark's motion to withdraw or inquiring further. He had a duty to investigate whether courisel was acting under a conflict of interest prior to leaping to the conclusion that it was all the fault of the defendant and using this reason to deny the motion to withdraw. "Whether the State has exercised due diligence is a question that must be determined on a case-by-case basis after careful review of the particular circumstances presented.” People v. Swanson, 322 Ill. App. 3d at 342. "The State bears the burden of proof on the question of due diligence." Swanson, 322 Ill. App. 3d at 342. On a legal question, however, the standard of review is de novo. People v. King, 366 Ill. App. 3d 552, 554 (2006). "Whether the trial court abused its discretion when it determined the exercise of due diligence is a question reviewed by an examination of what information the court had before it when it made its finding." People v. Battles, 311 Ill. App. 3d 991, 1003 (2000), Judge Prochaska failed to conduct an adequate inquiry on March 14, 2007, sufficient to place all blame on one party when he simply accepted what the Attorney Clark had to say and chose not to examine the additional evidence available before reaching an erroneous conclusion. Judge Prochaska persisted in solely blaming the defendant for all communication problems while he presided over the case. Clark again renewed his motion to withdraw