APPEAL from the Circuit Court of Will County; the Hon. ANGELO
F. PISTILLI, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Defendant Charles Robinson appeals from a conviction of burglary entered in the Circuit Court of Will County following a jury trial. Defendant was sentenced to a term of from three to nine years imprisonment in the penitentiary. On appeal, defendant argues that (1) defendant was denied his right to effective assistance of counsel in that there existed a per se conflict of interest where the defendant was represented by a full-time assistant public defender and where certain part-time assistant public defenders' private law firms had previously represented the victim of the burglary with which defendant was charged, and (2) defendant did not make a knowing and intelligent waiver of his counsel's conflict of interest.
The record establishes that on February 4, 1976, defendant Charles Robinson and a co-defendant Beverly Wilder were charged by information with the offense of burglary in violation of section 19-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 19-1). At defendant's arraignment on February 4, 1976, defendant was represented by William Phelan, a full-time Will County assistant public defender. It appears that subsequent to defendant's arraignment, Alex Bonds, a part-time Will County public defender, was assigned the responsibility of defendant's case. On April 14, 1976, Mr. Bonds, in a conversation with Assistant Will County State's Attorney William Ford, indicated that one of Mr. Bonds' associates in a private law firm had, in August of 1975, represented a Mr. Witt in the purchase of Sully's Blue Ribbon Tap, the business which was the victim of defendant's alleged burglary. Mr. Bonds indicated at that time that he no longer had any professional contact with Mr. Witt, although Mr. Witt still owed some money for attorney's fees in the purchase transaction. On April 15, 1976, it was agreed that Mr. Bonds would withdraw as defendant's counsel and that another assistant public defender would be appointed.
On April 20, 1976, Will County State's Attorney Martin Rudman and Public Defender Samuel Andreano discussed the matter before the trial court. It appears that the Will County public defender has five part-time assistants who are engaged in private practice in five different law firms, and three full-time assistants who have no professional interests other than their work in the public defender's office. It further appears that within the public defender's office each case is considered the case of the individual attorney to whom it is assigned, and that each full-time public defender is independent of, and is not supervised by, any of the part-time assistant public defenders. The Will County Public Defender also stated that his full-time assistants have no interest whatever in whether a part-time assistant realizes fees from work outside the public defender's office.
The trial court then informed defendant Robinson and his co-defendant Wilder of Mr. Bonds' relationship with Mr. Witt and with the public defender's office, and explained the nature of the possible conflict of interest involving Mr. Bonds and Mr. Witt and how this conflict could possibly affect the defendants. Defendant and his co-defendant acknowledged that they understood what the court had told them. The trial court inquired of defendants whether they would object to the appointment of a full-time assistant public defender to represent them. When asked if he understood the problem which the court was trying to explain, defendant Robinson stated that he did not. He then said that he saw no apparent problem in the public defender representing him, and that it would make no difference to him if Mr. Bonds represented him. At another point defendant expressed some concern that an assistant defender might be influenced by Mr. Bonds relationship with Mr. Witt. The trial court indicated to defendant that if the public defender's office was not appointed, then a new appointed lawyer might not be prepared to go to trial promptly, and that such circumstance might result in defendant having to waive his right to a speedy trial. After being fully advised by the trial court of the consequences of his (defendant's) decision, defendant indicated that he had no objection to the appointment of full-time assistant public defender Daniel Kallan to represent defendant.
On April 21, 1976, it was called to the trial court's attention that Michael Murcer and David Kozlowski, who had been in private practice together and who were also part-time assistant public defenders, had performed legal work for Mr. Witt in the past. After defendant and his co-defendant were again informed of the independence of the assistant public defenders within the public defender's office; of the possible impact that the appointment of counsel outside of the public defender's office could have on their right to a speedy trial, and of the relationships of the part-time assistants to Mr. Witt, defendant stated that he had no objection to his representation by assistant public defender Daniel Kallan.
The cause then proceeded to trial. The evidence indicated that at about 4:25 a.m. on December 23, 1975, City of Joliet police officers, investigating a report of breaking glass, discovered a broken window at Sully's Blue Ribbon Tap and found defendant and his co-defendant inside Sully's Blue Ribbon Tap. The evidence indicated that defendant and his co-defendant were preparing to remove a number of bottles of liquor and a television set from the establishment. Mr. Witt testified at trial that he was the lessee of the premises, and that he did not give defendant authority to be in the tavern after closing. There was no dispute as to this issue.
Following presentation of the evidence, the jury found defendant guilty of burglary. Defendant filed a motion for a new trial, which made no reference to an issue of conflict of interest or to any inability of defendant's eventual trial counsel to properly prepare and present defendant's defense. The motion for new trial was denied, and the trial court sentenced defendant to a term of from three to nine years in the penitentiary, with credit for 165 days served.
1, 2 On appeal, defendant first argues that he was denied his right to effective assistance of counsel in that there existed a per se conflict of interest where defendant was represented by a full-time assistant public defender and where part-time assistant public defenders' private law firms had previously represented Mr. Witt, the victim of the burglary with which defendant was charged. With respect to this issue, the Illinois Supreme Court stated in People v. Coslet (1977), 67 Ill.2d 127, 133, 364 N.E.2d 67:
"This court adopted a per se conflict-of-interest rule in People v. Stoval (1968), 40 Ill.2d 109, 112, whereby allegations and proof of prejudice are unnecessary in cases where a defense counsel, without the knowledgeable assent of the defendant, might be restrained in fully representing the defendant's interests due to his or her commitments to others, with even closer scrutiny being applied where counsel is appointed for defendant. (40 Ill.2d 109, 113.) The test is not and cannot be based only upon the source of a financial gain by the attorney. A rule based solely on financial gain would not only be unworkable in the everyday practice of law but would also have no necessary correlation with the conflicts of interest that arise in such practice. The Stoval rule, based upon actual commitments to others, is both workable and necessarily correlates with such conflicts. See People v. Kester (1977), 66 Ill.2d 162, 166-69."
In the instant case, some part-time assistants in the Will County Public Defender's Office, in the course of their private practice not connected with the public defender's office, had rendered professional service to Mr. Witt, the victim of defendant's alleged burglary and a prospective witness at defendant's trial. It is clear, therefore, that representation of defendant by these part-time assistant public defenders would have been construed as involving a per se conflict of interest under the Stoval rule. We note, however, that defendant's appointed counsel in the instant case was a full-time assistant public defender having no professional interests other than his work with the Will County Public Defender's Office. The record is devoid of any indication that assistant public defender Kallan had any actual commitments to others which would act as a restraint in fully representing defendant's interests and which might create a per se conflict of interest under Stoval.
Defendant argues that the conflict of interest existing on the part of the part-time assistant public defenders should be applied to bar representation by all attorneys within the defendant's office. We are aware that in certain situations a conflict of interest arising out of the actions of an assistant public defender in his official capacity can create disqualifying conflicts with respect to all members of the public defender's office. Thus, the Illinois Appellate Court for the Fifth District held in People v. Freeman (5th Dist. 1977), 55 Ill. App.3d 1000, 371 N.E.2d 863, that a per se conflict of interest arises where a defendant is represented by one assistant defender during submission of his guilty plea and is represented by another member of the public defender's office on a motion to withdraw his guilty plea, where the motion alleges that the original public defender coerced the defendant into pleading guilty.
In the instant case, however, the conflicts of interest, existing with respect to some of the part-time assistant public defenders, arose from their actions in their private practices, and not through their actions as assistant public defenders. We believe that those conflicts remained personal to those part-time public defenders and could not affect representation of defendant by other assistant public defenders. In an analogous situation, the Illinois Supreme Court stated in People v. Newberry (1973), 55 Ill.2d 74, 77, 302 N.E.2d 34:
"During oral argument of this appeal, counsel further refined this assertion to a more limited one: that petitioner's trial and appellate counsel had served as head of the criminal division of the Cook County State's Attorney's office while this case was being prepared. No further facts concerning counsel's involvement, if any, in this particular prosecution were alleged either in the post-conviction petition or during argument. Moreover, no suggestion is offered as to how any acts or omissions of counsel in this case might have produced any other result. We do not believe the premise urged by defendant that a disqualifying conflict of interest requiring reversal exists whenever a former assistant prosecutor, employed as such at the ...