APPEAL from the Circuit Court of Peoria County; the Hon.
RICHARD E. EAGLETON, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
The defendant, James Kester, was indicted for burglary on January 10, 1973. On January 16, 1973, the defendant was called three times in open court and failed to make an appearance. The Assistant State's Attorney filed with the court a motion for discovery and a request for the issuance of a bench warrant and an order forfeiting bond.
When the cause was called for arraignment ten days later, the defendant was again absent. The Assistant State's Attorney renewed his request that the court issue a bench warrant and an order forfeiting bond. Both motions were granted.
The defendant appeared in court on April 17, 1973, at which time the court provided him with a copy of the indictment and appointed the Public Defender of Peoria County as defense counsel.
Soon after the burglary indictment was returned, two unrelated indictments were also returned charging defendant with unlawful delivery of cannabis. During arraignment on these indictments, the court again offered to appoint the Public Defender. The defendant, however, objected, stating that he desired counsel other than the Public Defender because during incarceration he had been unable to meet with the Assistant Public Defender, recently assigned to his case. Over defendant's objection the Public Defender was appointed to the cannabis case.
On August 13, 1973, the cases were called for trial. On motion of defense counsel, the three charges were consolidated. Defendant withdrew his plea of not guilty and entered a plea of guilty to burglary and unlawful delivery of cannabis in a quantity of between 10 and 30 grams. The other cannabis charge was dismissed.
Defendant urges that he was "denied effective assistance of counsel due to a conflict of interest which resulted from counsel's acting as both prosecutor and defense counsel for the same client in the same criminal matter."
It appears from the record that defendant's appointed counsel also appeared on behalf of the People, up to and including April 17, 1973, in connection with the hearings and motions on the burglary charge, as set forth above.
Thus, we are presented with a case in which the attorney, who undertook to discharge the duties of defense counsel respecting the matter of guilt or innocence, had previously served as the Assistant State's Attorney in the same criminal proceeding. Although not apparent from the record, the defendant's brief states and the People's brief admits that the attorney left the employ of the State's Attorney's Office and assumed a position with the Public Defender during the first week of May, 1973.
We reverse on the ground that the conflict of interest here present subjected the defendant to prejudice.
• 1 The right to the effective assistance of counsel is a fundamental right and entitles the person represented to the undivided loyalty of counsel. (Glasser v. United States, 315 U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457.) In People v. Stoval, 40 Ill.2d 109, 111-12, 239 N.E.2d 441, our Supreme Court relied upon the following language from Porter v. United States, 298 F.2d 461 (5th Cir. 1962):
"`The Constitution assures a defendant effective representation by counsel whether the attorney is one of his choosing or court-appointed. Such representation is lacking, however, if counsel, unknown to the accused and without his knowledgeable assent, is in a duplicitous position where his full talents as a vigorous advocate having the single aim of acquittal by all means fair and honorable are hobbled or fettered or restrained by commitments to others.'"
The case of People v. Newberry, 55 Ill.2d 74, 302 N.E.2d 34, strongly resembles the factual pattern present here. There, the defendant was convicted of voluntary manslaughter following a bench trial. The defendant then sought relief under the Post-Conviction Hearing Act (Ill. Rev. Stat., ch. 38, § 122-1 et seq.) alleging that his attorney had been the "original prosecutor of this case." During oral argument, it became apparent that defendant's trial and appellate counsel had served as head of the criminal division of the Cook County State's Attorney's office while the case was being prepared. No claim was made that defense counsel, while assistant State's Attorney, had any actual knowledge of defendant's case.
The Illinois Supreme Court held these "general allegations" insufficient to require an evidentiary hearing on the issue of defective representation.
Newberry stands for the proposition that no per se conflict of interest is created when an attorney first serves as a member of the prosecution staff and then moves over to become defense counsel. The ruling is predicated upon the absence of any allegations concerning counsel's knowledge, involvement or participation as a prosecutor with respect to the criminal proceeding in which he served as defense counsel.
Although based upon a similar factual pattern, Newberry requires an opposite result in the instant appeal. First, in Newberry, "[n]o further facts concerning counsel's involvement, if any, in this particular prosecution were alleged," other than those previously stated. That holding authorizes reversal whenever the prosecutor is personally involved in the same criminal proceeding in which he subsequently becomes defense counsel. Second, Newberry supports reversal because the facts concerning counsel's involvement in this particular prosecution are not framed in terms of "general allegations" without the specificity required of a post-conviction petition; rather, the facts here are clearly set out in the record. Finally, Newberry requires reversal when the record suggests that the acts or omissions of counsel "might have produced a different result." The case at bar involved a negotiated plea of guilty. We note in this regard that during the hearing in aggravation and mitigation, defense counsel stated to the court the decision to forego raising various defenses to the three offenses with which the defendant was charged. Since defendant was represented, on the issue of guilt or innocence, by counsel who previously appeared on behalf of the People in the same criminal proceeding, we believe that the appointment of other counsel might have produced a different result.
In People v. Darby, 30 Ill. App.3d 37, 332 N.E.2d 64, a case which also presented a factual context related to that involved here, the appellate court, relying on Newberry, rejected a claim of conflict of interest and held no prejudice resulted to the defendant. There, the attorney, who appeared on behalf of the People at defendant's arraignment, also appeared one year later as appointed counsel on behalf of the defendant at the sentencing hearing. Since counsel's involvement or participation on behalf of the defendant was, unlike the instant appeal, unrelated to the question of guilt or innocence, but was only concerned with the matter of sentencing, we believe Darby is in harmony with the result reached here today.
The case of People v. Gerold, 265 Ill. 448, 107 N.E. 165, presents a factual context opposite that of the instant appeal. In Gerold, it was held that the trial court improperly permitted an attorney to appear on behalf of the People, since the attorney had for several years prior to the prosecution represented the defendant in respect to matters which formed the basis of the indictment. The court there engaged ...