APPEAL from the Circuit Court of Madison County; the Hon.
WILLIAM L. BEATTY, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendants James Simmons, Ralph Simmons and Clarence Edward Evans were jointly indicted by the grand jury of Madison County for the offense of armed robbery. James pleaded guilty to the reduced charge of robbery and was sentenced to not less than three nor more than nine years in jail; while Ralph pleaded guilty to the offense of armed robbery and received a sentence of not less than four nor more than six years in jail. James directly attacked the judgment entered on his plea by filing a motion to withdraw his guilty plea pursuant to Supreme Court Rule 604(d) (Ill. Rev. Stat. 1975, ch. 110A, par. 604(d)). This motion was denied by the trial court and he appealed. He and Ralph collaterally attacked the judgments entered against them by filing a joint pro se petition for writ of habeas corpus. The trial court refused to grant their petition, and they appealed this decision. Additionally, they filed a joint pro se post-conviction petition seeking to vacate the judgments in accordance with section 122-1 et seq. of the Code of Criminal Procedure (Ill. Rev. Stat. 1975, ch. 38, par. 122-1 et seq.). The denial of this petition precipitated yet another appeal. All these appeals have been consolidated for the purpose of this opinion due to the repetition and relationship of the issues and parties involved in the appeals.
The first issue for our consideration is whether James and Ralph have been denied their right to effective assistance of counsel. James and Ralph argue that their constitutionally protected right was infringed by conflicting commitments of their attorneys because both counsel were employed by the public defender's office and James and Ralph were pursuing antagonistic defenses. The State contends that the issue was waived because it was first raised in this court.
There were no significant differences in the factual bases offered by the State as a foundation for the guilty pleas of James and Ralph. The State was prepared to prove that on October 2, 1975, James, Ralph and Clarence Evans robbed Walter Pedigo, an employee of Wayne's Men's Wear in Madison, Illinois, at gunpoint. The robbery occurred sometime between 12 m. and 1 p.m. Two customers were present in the store at the time, Mrs. Brown and Mrs. Szimeck. Pedigo was prepared to testify that Evans robbed him of some of his personal possessions and the store of some of its merchandise with the aid of James and Ralph. Mrs. Szimeck would identify Ralph as one of the robbers, while Mrs. Brown could identify James.
The State would also call witnesses who would testify that the three defendants were observed in the area prior to the robbery acting "suspiciously" in a vehicle registered to Ralph. Officer Brook, a Venice police officer, would testify that he heard a radio dispatch regarding the robbery and shortly thereafter saw Ralph's automobile proceed across a bridge into Missouri. Sometime later, in response to a radio dispatch received by the Madison County authorities, police officers from Hillsdale, Missouri, surrounded a residence in that city and arrested James, Ralph and Clarence Evans. They would testify that inside the house the proceeds of the robbery were discovered.
On October 3, James and Ralph were taken before a judge in St. Louis County and declined to waive extradition. On January 5, 1976, approximately 95 days after their initial appearance in St. Louis County, they were released from custody, apparently because the State of Illinois had failed to perfect a demand for extradition. They were thereafter rearrested by the Missouri Highway Patrol on March 19 and booked in Madison County on the armed robbery charge on April 1. The record on appeal does not reflect the circumstances or procedures by which the defendants were transferred from Missouri to Illinois. On April 19, 1976, they were arraigned in Madison County and the public defender was appointed to represent them.
On June 8, a hearing was held on a motion to dismiss the charges against James and Ralph. At this same hearing they moved that their causes be severed. Both assistant public defenders who represented them at that time (Charles Weitzman for James and George Moran, Jr., for Ralph) indicated that the defenses were potentially antagonistic. The attorneys, however, stated that they could not go into the substance of what those defenses would be at that time. The court then denied the motion for severance.
Mr. Moran was allowed to withdraw as Ralph's counsel, and the public defender, Paul Riley, assumed Ralph's representation. On July 13, Ralph appeared in open court with his counsel for the purpose of entering a negotiated plea of guilty. In exchange for the plea of guilty the State was to recommend a sentence of four to six years in the penitentiary. It was further understood and agreed, as established by statements made by the trial judge at the hearing, that Ralph maintained that he had not wielded a gun during the armed robbery, but understood he was nonetheless responsible for the actions of the co-defendant who did. The court further indicated that it would accept the State's sentence recommendation only if the presentence report reflected that Ralph's prior criminal record was consistent with representations made to the court at the time of the plea of guilty.
After advising Ralph of certain of his rights and the effects and consequences of a plea of guilty, and receiving the prosecutor's recital of the factual basis, the court accepted his plea and scheduled a sentencing hearing for July 30.
At a separate hearing before the same judge on the same day, James appeared with counsel, also for the purpose of entering a negotiated plea of guilty. It was agreed that James would plead guilty to the reduced charge of robbery and that the State would recommend a sentence of two to six years. The trial court emphasized that in this instance it would not be bound by the negotiations between the parties. The trial judge advised James that he reserved "the right to sentence you to what I think is a fair sentence, after I read your presentence report and after I have heard any evidence you want to put on in mitigation." After advising him of certain of his rights and the effects and consequences of a plea of guilty, the court accepted the plea. Separate sentencing hearings were conducted in which the trial court imposed a term of three to nine years upon James and a term of four to six years upon Ralph.
1 Inherent in a defendant's sixth and fourteenth amendment right to effective assistance of counsel is the requirement that he receive the undivided loyalty of his counsel. (Glasser v. United States (1942), 315 U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457.) "In Illinois, where a defense counsel's past or present commitments to others involves interests which potentially conflict with those of the defendant, a per se rule of reversal has been applied without the necessity of a showing of any actual prejudice resulting thereby. (People v. Stoval, 40 Ill.2d 109, 239 N.E.2d 441; People v. Kester, 66 Ill.2d 162, 361 N.E.2d 569; People v. Coslet, 67 Ill.2d 127, 364 N.E.2d 67.)" (People v. Meng (5th Dist. 1977), 54 Ill. App.3d 357, 360-61, 369 N.E.2d 549, 551.) Although this per se rule of conflicts was originally applied by the courts> to situations where a defense counsel's conflicting commitment was to someone not charged with the crime (People v. Stoval (the victim of the crime was a client of the court-appointed defense counsel's law firm); People v. Coslet (the court-appointed counsel represented the defendant being tried for murder and at the same time was retained by the administrator of the victim's estate)), this rule has been subsequently expanded to cover joint representation situations, involving one attorney and multiple co-defendants, where the conflicting commitment was to a co-defendant (People v. Frey (5th Dist. 1977), 50 Ill. App.3d 437, 365 N.E.2d 283; People v. Halluin (5th Dist. 1976), 36 Ill. App.3d 556, 344 N.E.2d 579). However, the mere fact of joint representation, alone, is insufficient to establish the possibility of a conflict. (Holloway v. Arkansas (1978), 435 U.S. 475, 55 L.Ed.2d 426, 98 S.Ct. 1173; People v. Meng.) Rather, a co-defendant must demonstrate additional facts which could support the inference that his attorney's commitment to one of his own co-defendants potentially conflicts with his own interests. People v. Meng.
2, 3 Facts which indicate that the co-defendants were pursuing defenses antagonistic to each other would be sufficient to raise the possibility of a conflict where the co-defendants are jointly represented. (People v. Baxtrom (5th Dist. 1978), 61 Ill. App.3d 546, 378 N.E.2d 182.) One possible ramification of antagonistic defenses is that an attorney may feel restrained from conducting a thorough direct examination of one co-defendant out of fear of implicating another co-defendant. "Where the circumstances raise the possibility of restraint, the application of a per se rule has been felt to be warranted in recognition of the fact that in most cases it is nearly impossible for a court to discern, or for a defendant to prove, or for a defense counsel to disprove, either the existence of subtle restraint in the counsel's representation or its consequent prejudicial impact. [Citations.]" People v. Baxtrom (1978), 61 Ill. App.3d 546, 553, 378 N.E.2d 182, 188.
4 In the case at bar, James and Ralph were not represented by a single attorney, but each was represented by an assistant public defender. However, in instances where each co-defendant was represented by a separate counsel employed by the public defender's office, the representation has been treated for purposes of the per se rule of conflicts as if all of the co-defendants were represented by one attorney. (People v. Meng; People v. Baxtrom.) The rationale for this is grounded in the fact that when a public defender is appointed to represent an indigent defendant, it is the office of public defender itself which is appointed, this representation being either by the public defender personally or through his assistants. (People v. Meng.) Thus, even though indigent co-defendants are assigned separate assistant public defenders, they are being represented by one office, and this representation is analogous to joint representation by a single attorney. The same potential for conflict which plagues joint representation cases involving antagonistic defenses also afflicts the public defender's office, because where an assistant public defender elicits testimony from one co-defendant in order to exonerate him, the assistant at the same time may implicate a co-defendant being represented by a different attorney from the same office. This situation intentionally or unintentionally forces the public defender's office to take sides, and, thereby, it cannot give its undivided loyalty to each co-defendant.
Relying on People v. Precup (1978), 73 Ill.2d 7, 382 N.E.2d 227, the State argues that James and Ralph waived the issue of denial of the right to effective assistance of counsel by failing to bring the issue to the attention of the trial court either prior to pleading guilty or in a motion to ...