APPEAL from the Circuit Court of McLean County; the Hon. WAYNE
TOWNLEY, JR., Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 10, 1979.
The defendant, Hugh Edward Walton, was charged with the offense of murder in connection with the shooting death of James Tribbett on September 22, 1967. He was tried for that offense at a trial that commenced in May 1968, resulting in a conviction. The defendant was sentenced to a term of 16 to 40 years' imprisonment.
On direct appeal, this court affirmed the conviction but remanded for correction of an error with reference to the date of commencement of the consecutive sentence (People v. Walton (1969), 118 Ill. App.2d 324, 254 N.E.2d 190). In the original trial and upon the direct appeal, the defendant was represented by the then public defender of McLean County. In 1972, the defendant initiated, on a pro se basis, post-conviction proceedings, and ultimately the circuit court of McLean County appointed the then public defender of that county to represent the defendant in the post-conviction proceedings.
A 1975 petition for post-conviction relief contains allegations that the defendant was denied his constitutional right to effective assistance of counsel at trial, and, indeed, upon the direct appeal. Because of the allegation that appointed counsel failed to raise circumstances for consideration by the trial court which may have warranted his conviction of the lesser offense of voluntary manslaughter, in general, the petition constitutes a substantial attack upon the representation afforded at trial. Since counsel on the direct appeal was the same as trial counsel, competency of the representation received at trial was not an issue on direct appeal.
In this post-conviction proceedings, the trial court considered the record of the original trial, and, in addition, heard and considered the testimony of Patricia Huffman and William Hines. Patricia Huffman had been a State's witness at the earlier trial. In the post-conviction proceeding, she testified that the decedent Tribbett had raped her sometime in the afternoon on the date of the killing and that she had spoken to the State's Attorney's office about the rape prior to the initial trial but she did not recall discussing the incident with the public defender. William Hines, who had likewise been a State's witness in the initial trial, also testified in the post-conviction proceedings.
Aside from the merits of the post-conviction proceedings, defendant now contends that the trial court committed reversible error and denied him the unfettered assistance of counsel in support of his post-conviction petition when it appointed the public defender of McLean County to pursue the post-conviction proceeding. This contention is based upon the fact that the primary allegation of violation of constitutional rights was that the public defender of McLean County had been inadequate and ineffective in assisting the defendant in the initial proceeding. We are persuaded that the trial court should have appointed counsel other than the public defender.
1 In People v. Smith (1967), 37 Ill.2d 622, 230 N.E.2d 169, the Illinois Supreme Court, while recognizing that there is no absolute right to appointment of non-public-defender counsel in post-conviction proceedings, noted:
"We have previously recognized the disadvantages, both to petitioner and the public defender's office, in having a representative from that office present petitioner's cause when his petition is based in part upon charges of incompetent representation afforded him at trial by the public defender. (People v. Ashley.) This circumstance clearly confronts the public defender's office with a conflict of interest since, on one hand, its natural inclination would be to protect its reputation by defending against the charges of incompetency while, on the other hand, its duty as an advocate is to aid petitioner in establishing the veracity of these charges. This conflict-of-interest situation should be avoided and the petitioner be appointed counsel other than the public defender to represent him at a new hearing on his petition." 37 Ill.2d 622, 624, 230 N.E.2d 169, 170.
In People v. Slifer (1973), 15 Ill. App.3d 136, 304 N.E.2d 153, we were confronted with a case in which the public defender appointed for the post-conviction proceeding was sought to be removed by the defendant for the reason that the defendant had attacked the competency of the prior representation of the same public defender office. In Slifer, we found no error and distinguished Smith. We did so upon the factual basis that the defendant had waived any objection to the representation upon learning that a different attorney was then the county public defender. The waiver found in Slifer is absent in this case and this case is not distinguishable from Smith. The disposition is commanded by Smith.
2 Accordingly, the judgment of the circuit court of McLean County denying post-conviction relief is vacated and this cause is remanded to that court with directions to appoint counsel for the defendant other than the public defender, and for further proceedings on the post-conviction petition.
Reversed and remanded with directions.