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People v. Freeman

DECEMBER 17, 1970.




APPEAL from the Circuit Court of Edgar County; the Hon. ROBERT F. COTTON, Judge, presiding.

MR. JUSTICE CHAMBERLAIN DELIVERED THE OPINION OF THE COURT: The defendant, Sandy Freeman, appeals from a judgment of guilty and sentence of two to seven years in the Illinois State Penitentiary.

The defendant along with five other individuals was arrested in April of 1969 and charged with theft over $150.00. They were unable to post a $10,000.00 bond, and all defendants were then incarcerated. A few days later the defendants were found to be indigent, and an attorney was appointed to represent them. Bond was reduced on motion of their attorney to $5,000.00. Each defendant was a resident of the State of Missouri. The trial judge admitted in open court that the bond was higher than if they were local residents. One person, not the defendant, made bond. The defendants were subsequently indicted on charges of theft and conspiracy to commit theft.

Thereafter, this defendant, Sandy Freeman, and one other defendant pleaded guilty to theft and asked for probation. The charges against the other defendants were then dismissed.

Freeman was sentenced to a term of two to seven years and the other defendant, a female, was granted probation.

The defendant contends that error was committed in this case by, (1) he was held by excessive and discriminatory bail, which was fixed because of non-residency; (2) the defendant did not receive competent representation because the attorney was overburdened; (3) there was a conflict for the attorney to represent the defendants who pleaded guilty and to also represent the defendants whose cases were dismissed; (4) defendant was not properly admonished concerning his right to a jury trial.

• 1, 2 We see no error in the setting of the bond for several reasons. First, the bond was not excessive. Also, there is no showing that the defendant could have made the bond set. Finally, we see no relationship between the amount of bail set and his plea of guilty. The plea, if properly taken, would waive any alleged error.

• 3 We also see no error in the defendant's contention that the attorney was overburdened to the extent that he did not adequately represent six defendants. The trial lawyer was an experienced attorney who had served two terms as State's Attorney of Edgar County.

• 4 Prior to the plea of guilty the defendants waived their right to a preliminary hearing and no pre-trial motions attacking the sufficiency of the indictments were filed. We see no error in the trial attorney foregoing these procedures. If he found that a trial was going to be necessary, he would still have ample opportunities to pursue normal pre-trial procedures.

• 5 We see nothing in this record that the assistance of effective counsel was denied because one attorney represented all defendants. In People v. Williams (1966), 36 Ill.2d 194, six defendants were charged with rape and were all represented by one attorney. After their conviction they urged as error the denial of effective counsel. The Supreme Court at page 207 stated:

"It is finally argued that appointing a single attorney to represent all six defendants at their joint trial denied petitioner effective assistance of counsel. The Petitioner and his co-defendants did not present conflicting defenses. Each testified to his own involvement and the version given by each defendant corroborated the version given by the others. There is nothing in this record to suggest that there would have been a different result if there had been six attorneys appointed to represent the defendants in this trial or in six different trials. We find no error in appointing one counsel to represent all the defendants under the facts of this case."

The contention that there was a conflict that precluded the defendant from being effectively represented is also without merit. While a conflict among six defendants would not be unusual, there is no specific charge of any conflict. There is only charged the possibility there could be a conflict.

In People v. Chapman (1965), 66 Ill. App.2d 124, at page 127 the Court stated:

"Unless defendant properly establishes that a conflict of interest actually exists, or this fact becomes apparent during the trial itself, the Court will not indulge in speculation to determine whether separate counsel, in the interest of justice and fair trial, is required."

This principle was also followed in People v. McCasle (1966), 35 Ill.2d 552 and in the federal cases of Lugo v. United States (1965), 350 F.2d 858 and in ...

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