APPEAL from the Circuit Court of Williamson County; the Hon.
DOROTHY SPOMER, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
This is a consolidated appeal. Defendant, Dennis Frey, appeals to this court from the denial after hearing of his petition for review under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1975, ch. 38, par. 122-1 et seq.), and he also pursues a direct review of judgments of conviction entered on his pleas of guilty.
Defendant and Mike Ovington were charged on April 19, 1974, by a two-count information with the offenses of burglary and theft over $150. An indictment bearing No. 74-CF-45 was subsequently filed in the circuit court of Williamson County charging them with the same offenses. On September 10, 1974, the grand jury of Williamson County returned four additional indictments against defendant. Defendant was charged with unlawful possession of cannabis (more than 30 grams but not more than 500 grams) by an indictment numbered 74-CF-68, and he was charged with three offenses of burglary by indictments numbered 74-CF-105, 106 and 107. On January 8, 1975, defendant pleaded guilty to all charges and was subsequently sentenced to concurrent terms of imprisonment of two to eight years on each charge of burglary and on the theft charge and a term of one to three years on the cannabis offense. Defendant filed a notice of appeal from these judgments of conviction, and the appeal was held in abeyance during the pendency of his post-conviction action.
The issues presented in the dual appeal to this court are: (1) whether defendant was denied the effective assistance of counsel due to the conflict of interests of his court-appointed attorney; and (2) whether the conviction of defendant on the theft offense was error when it arose from the same conduct as one of the burglary offenses.
The factual situation in this cause is somewhat unclear since the record is too insufficient to inform us exactly what involvement defendant's court-appointed counsel, the public defender of Williamson County, had in cases involving Mike Ovington or what specific charges were lodged against Mr. Ovington.
It is apparent that initially the public defender was appointed to represent both defendant and Mr. Ovington on the burglary and theft offenses charged in case No. 74-CF-45. However, on May 13, 1974, the public defender was allowed to withdraw as defendant's counsel on these charges because of a potential conflict of interest arising from his representation in another matter of a juvenile who had been granted immunity from prosecution for any participation in the acts upon which these charges were based in exchange for a promise to testify for the State. The court subsequently appointed a different attorney to represent defendant on these particular charges of burglary and theft and on the possession of cannabis charge. The public defender was appointed to represent defendant on the three burglaries charged in indictments 74-CF-105, 106, and 107.
Based upon the record sheet for case No. 74-CF-45 and other matters of record, it appears, however, that the public defender continued to represent Ovington on the charges of 74-CF-45, was involved in the entering of a negotiated plea of guilty, and participated in a sentencing hearing which resulted in Ovington's being sentenced to five years' probation. Both the entry of plea and sentencing of Ovington occurred after defendant was sentenced. Ovington's probation order lists three other case numbers, 74-CF-30, 44, and 46, upon which no sentences were entered. There is nothing in the record to clearly show what charges were involved in those cases or whether the public defender was Mr. Ovington's attorney of record on them as well. There is, however, considerable evidence which justifies our inferences that those cases involved the same acts of burglary alleged against defendant in 74-CF-105, 106, and 107 and that the public defender was also Mr. Ovington's counsel in those cases.
First, we note that an assistant State's Attorney for Williamson County, in reciting the factual basis for defendant's guilty pleas, stated that Mike Ovington would be a witness for the prosecution on the burglary charges of 74-CF-45, 106 and 107. No one was mentioned as a State's witness for the 74-CF-105 burglary. It is apparent that Ovington could hardly have had any testimony of value on these charges unless he was directly involved. Second, based upon a telephone conversation he had with the public defender of Williamson County during the post-conviction hearing, the Williamson County State's Attorney testified: (1) that the public defender represented both Mr. Ovington and defendant Frey; (2) that prior to May 13, 1974, he informed the public defender that Ovington would be granted immunity and the public defender thereafter withdrew as defendant's counsel in 74-CF-45; (3) that prior to January of 1975 (when defendant pleaded guilty to all charges) he informed the public defender that the State was going to grant Ovington immunity in 74-CF-105, 106, and 107; and (4) the public defender continued to represent defendant in these cases. Finally, defendant testified without contradiction that he knew Ovington had had pending charges arising out of the same transactions as those in 74-CF-105, 106, and 107, and that he was represented in those cases by the public defender.
Defendant further testified that he was told by the public defender that Ovington was going to testify against him if he went to trial and that he pleaded guilty after the public defender told him there was no way he could avoid conviction with Ovington as a State's witness.
• 1 It is necessary to consider at the outset the State's contention that since defendant pleaded guilty he waived the issue of ineffective assistance of counsel under the rule that a voluntary plea of guilty waives any prior non-jurisdictional defect including constitutional violations. (People v. Stanley, 50 Ill.2d 320, 278 N.E.2d 792.) In the two cases that our supreme court has decided which involved this type of issue in which the defendant had pleaded guilty, the court has refused to find that defendant knowingly waived his right to representation by court-appointed counsel free from any conflict of interests when there was no affirmative evidence either that defendant was admonished as to the significance of the potential conflict or had a full understanding of such conflict of interests. (See People v. Meyers, 46 Ill.2d 149, 151, 263 N.E.2d 81, and People v. Kester, 66 Ill.2d 162, 168, 361 N.E.2d 569.) There is no such evidence here; consequently, we do not find that this issue was waived. As the Supreme Court stated in Glasser v. United States, 315 U.S. 60, 70, 86 L.Ed. 680, 699, 62 S.Ct. 457, 465, after holding that the sixth amendment contemplates that the fundamental right to assistance of counsel be untrammeled by any court's requirement that one lawyer shall simultaneously represent conflicting interests: "To preserve the protection of the Bill of Rights for hard-pressed defendants, we indulge every reasonable presumption against the waiver of fundamental rights." See also People v. Brown, 40 Ill. App.3d 562, 352 N.E.2d 15.
Defendant contends that the situation, in which defendant's counsel was simultaneously engaged in representing Ovington in plea negotiations for recommendations of probation and immunity from some charges in exchange for his promise to testify against defendant, and in evaluating the future course of defendant's defense and the chances of its success or failure, constitutes a per se conflict of interests which deprived defendant of the effective assistance of counsel in cases 74-CF-105, 106, and 107.
The State responds that defendant's appointed counsel's ability to assess the State's case was unaffected by any potential conflict of interest. It notes that there are no Illinois cases in which a judgment entered on a plea of guilty has been reversed because of a conflict of interest created by defendant's counsel's responsibility to another defendant; the majority of the cases on counsel's conflict of interest have involved the situation where defendant has gone to trial and the co-defendant, represented in other matters by defendant's attorney, has testified against the defendant.
Both the State and defendant have set forth arguments in their briefs pertinent to whether the defendant was prejudiced by the conflict of interest, but we shall not include them here since, in our view of this case, we are not required to address them.
Defendant also contends that this conflict tainted defendant's pleas in cases 74-CF-45 and 68, in which defendant had different counsel, and we, therefore, should reverse the judgments on those charges as well as those in which the public defender represented him and remand this cause to allow him to plead anew to all of the charges. He argues in support of this contention that all of the pleas were negotiated as a unified whole and taken at one hearing and that the State may not have agreed to recommend the sentences it did if defendant had refused to plead to all of the charges. ...