APPEAL from the Circuit Court of Coles County; the Hon. ROBERT
F. COTTEN, Judge, presiding.
MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
Defendant-appellant Thomas Charles Fuller, II, was convicted October 23, 1968, on pleas of guilty to 5 counts of murder. The defendant shot, and killed, 5 children. The victims were Louis Cox, age 16, Theresa Cox, age 9, Mary Cox, age 8, Gary Cox, age 7, and Kenneth Cox, age 5. Hearing in aggravation and mitigation commenced on November 4, 1968, lasted 5 days, and was concluded on November 11, 1968. Defendant was sentenced on December 10, 1968, to indeterminate terms of 70 to 99 years on each count of the indictment. The sentences involving the murder of Theresa Cox and Mary Cox to run concurrently but consecutively to the concurrent sentences imposed on the counts relating to the deaths of Gary Cox, Louis Cox and Kenneth Cox. There was no direct appeal.
On July 14, 1971, appointed counsel filed an amended post-conviction petition alleging certain constitutional deprivations. Following an evidentiary hearing the trial court entered its order denying the relief sought, and this appeal ensued. Only two issues are presented, the first of which is stated in defendant's brief as follows:
"1. Was the defendant denied his constitutional right to the effective assistance of counsel because one of his appointed attorneys had a conflict of interest by having a contract with the defendant to handle publication rights to certain written and other materials of the defendant relating to the crimes with which he was charged?"
The evidentiary background against which the issue is posed may be summarized as follows: The defendant was arrested in connection with these offenses on April 28, 1968, and on that date William A. Cherikos, public defender of Coles County, was appointed as counsel for the defendant. Preliminary hearing was had on May 3, 1968. On May 20 or May 23, 1968, another attorney, Mr. Whitney D. Hardy, was appointed as co-counsel. Both attorneys served as counsel for the defendant until the case was terminated by imposition of sentence by the trial judge.
Sometime between Attorney Hardy's appointment in May, 1968, and December 8, 1968, the contract, prepared by Hardy, was entered into between the defendant, Attorney Hardy and defendant's mother, Mrs. Lucy Fuller. Defendant was 18 years of age at the time.
The precise date on which the agreement was signed is unclear, the evidence tends to establish that it was signed in the month of December, 1968, and probably between December 5 and December 8, 1968. On defendant's request Attorney Hardy surrendered the contract in the month of January, 1969. The defendant had submitted to psychiatric examination at the Menninger Clinic, and the examinations had been recorded on video tape. It also appears that the defendant had written three books, and had kept a diary. It does not appear from the record that any writing of the defendant had ever been published. Under the terms of the contract Hardy agreed to protect defendant's "common-law" rights to the unpublished writings and the video tapes, in consideration of a contingent fee equal to one-third of any royalties received if, as and when publication occurred.
In January, 1969, Hardy terminated the contract on request of the defendant.
The issue presented is narrow, and it is precise. It is as important to recognize what defendant does not claim as it is to realize that which he does contend. He does not contend that Attorney Cherikos had any conflict of interest or that his representation was anything other than competent. He does not contend that he had a defense to the charges which counsel bungled or failed to present. Indeed the record establishes guilt not only beyond reasonable doubt, but beyond any doubt. He does not contend that his plea was coerced, that the taking of the plea was involuntary in any sense, or that any constitutional infirmity of any sort surrounded the taking of the plea or the decision to plead, nor does he urge any constitutional deprivations obtaining prior to or after his arrest.
What defendant does argue, and state the issue to be, is that once a conflict of interest appears on the part of counsel a per se rule applies which mandates reversal without a showing of prejudice. Defendant bottoms this argument upon several supreme court and appellate court decisions. He cites People v. Ware, 39 Ill.2d 66, 233 N.E.2d 421. In Ware, an attorney represented both co-defendants whose positions were antagonistic. In reversing the court reaffirmed the rule enunciated in People v. Dolgin, 415 Ill. 434, 114 N.E.2d 389, which held that co-defendants have a right to separate counsel if their positions are antagonistic. The court in Ware further stated that it would not "* * * attempt to measure the prejudice sustained by the defendant, for, as the Supreme Court stated in Glasser v. United States, 315 U.S. 60, 76, 86 L.Ed. 680, 62 S.Ct. 457: `The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial'." 39 Ill.2d at 68.
Defendant also relies upon People v. Meyers, 46 Ill.2d 149, 263 N.E.2d 81. There defendant entered a plea of guilty to the crime of burglary while represented by appointed counsel who also represented the defendant's wife on a possible dramshop action against the tavern where defendant had been drinking prior to commission of the crime. In reversing the conviction and remanding for the purpose of permitting defendant the opportunity of withdrawing his plea the court noted that counsel "* * * conceivably stood to gain a contingent fee which would presumably increase in proportion to the length of defendant's sentence." (46 Ill.2d at 152.) The court also criticized counsel's neglect to call to the attention of the sentencing judge the State's Attorney's recommendation of sentence which was for a term less than that imposed.
Defendant cites People v. Richardson, 7 Ill. App.3d 367, 287 N.E.2d 517, and People v. Krause, 7 Ill. App.3d 701, 288 N.E.2d 530. Richardson dealt with the same conflict of interest described in People v. Meyers, 46 Ill.2d 149, 263 N.E.2d 81, and this court held that Meyers controlled. In Krause appointed counsel, at the time of his first appearance advised the court that a conflict of interest existed, and that it had arisen prior to his appointment. Despite defendant's statement to the court that the attorney's appointment was agreeable to the defendant counsel reiterated that the conflict existed and that defendant should have other representation. The trial judge made no inquiry as to the extent or nature of the conflict nor is it revealed in the record. Under these circumstances this court reversed and remanded with directions to permit defendant to plead anew because of the refusal of the trial judge to allow counsel's motion to vacate the appointment.
Lastly, defendant cites People v. Stoval, 40 Ill.2d 109, 239 N.E.2d 441, and Glasser v. United States, 315 U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457, the latter being cited in the opinion in Stoval. In Stoval, defendant was charged with burglary. Appointed counsel had personally represented the victim and his law firm was currently representing the victim. The Stoval court reversed the conviction and remanded for further proceedings stating that "In a case involving such a conflict there is no necessity for the defendant to show actual prejudice. Glasser v. United States, 315 U.S. 60; Goodson v. Peyton (4th Cir.) 351 F.2d 905." This holding in Stoval is the source of defendant's contention that no prejudice need be demonstrated once a conflict of interest on the part of counsel appears, as to put the matter another way it is contended that under the above quoted language from Stoval, Illinois promulgated a per se rule governing all conflicts of interest.
We first note that both Stoval and People v. Meyers, 46 Ill.2d 149, 263 N.E.2d 81, involve a commitment to others on the part of counsel. The court in Stoval, as above noted, cited Glasser v. United States, 315 U.S. 60, and Goodson v. Peyton (4th Cir.) 351 F.2d 905, in support of its ruling that in "* * * such a conflict" no prejudice need be shown. Glasser also involved appointed counsel representing co-defendants with conflicting interests. The possibility of the conflict arising during trial had been brought to the attention of the trial judge. The conflict was in fact demonstrated by the declination of counsel to cross examine one witness whose testimony was damaging to Glasser but not to his co-defendant. The Supreme Court reversed because of the denial of Glasser's sixth amendment rights to ...