APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MR. PRESIDING JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
The defendant, William J. Horton, convicted of armed robbery and sentenced to a term of 20 to 50 years, appeals from a denial following an evidentiary hearing of his petition for post-conviction relief. His conviction was affirmed on direct appeal by the appellate court (35 Ill. App.3d 208) and the supreme court (65 Ill.2d 413). Following affirmance by the appellate court, the defendant filed a pro se petition for post-conviction relief. (Ill. Rev. Stat. 1975, ch. 38, par. 122-1 et seq.) This petition and a subsequent amended petition alleged that defendant's trial counsel had a conflict of interest since he had participated in the preliminary stages of the case as an assistant State's Attorney, and consequently, the defendant was denied effective assistance of counsel.
It is undisputed that the trial court appointed private counsel to represent the defendant. Because the appointed attorney was unable to be present for a court appearance in this case, his partner was in court in his place. The attorney who was present filed the appointed attorney's appearance and a petition for discovery on behalf of the defendant. Several months later when the defendant's case was called for trial, the appointed attorney was engaged elsewhere, and his partner again appeared in his place, and represented the defendant throughout his trial.
The defendant's trial attorney had formerly been employed as an assistant State's Attorney. In that capacity, he had been in the courtroom when the defendant's case was assigned to a trial judge and on several dates when the defendant's case was on the court call. Also, he had prepared the State's answer to discovery in this case and his name appeared upon the answer.
In view of the manner in which we dispose of this appeal, we shall accept the version of the facts presented by the State and found by the judge who presided at both defendant's trial and the post-conviction proceedings, discounting the version urged upon us by the defendant. The defendant denied knowing until after his trial was concluded that his trial attorney had previously represented the State in the same case or that the latter had been an assistant State's Attorney assigned to this case. The attorney, however, testified as follows: When he first appeared on behalf of the appointed attorney, the defendant acknowledged knowing who he was and recognizing him from his previous court appearances as a State's Attorney in the case. The attorney told the defendant he had previously acted on behalf of the State in the case and was familiar with the facts. The attorney also testified that at the time of trial he explained to the defendant that the court-appointed attorney was unavailable. His testimony was that the defendant again said he remembered him from his participation in the case as an assistant State's Attorney, and that the defendant wished to go to trial immediately.
From the evidence presented at the post-conviction hearing, the judge found that the defendant knew prior to trial of his attorney's preliminary involvement in the case as an assistant State's Attorney, and nevertheless insisted on going to trial immediately with that attorney acting as his trial counsel.
1 The State initially contends that the defendant is precluded from raising the issue of his attorney's conflict because he failed to present it on direct appeal. The attorney employed by the State Appellate Defender who handled defendant's direct appeal testified at the post-conviction hearing that he knew that the defendant's trial counsel had previously participated in the case on behalf of the State, but had not raised the matter on direct appeal. This is undisputed. Defendant's claim that he wrote to appellate counsel about his trial counsel's prior involvement in the case when he discovered it while reviewing a copy of the trial record during the pendency of the direct appeal is also undisputed. Under these circumstances, fundamental fairness requires consideration of defendant's contention which, for some unexplained reason, the defendant's appellate counsel failed to raise during the direct appeal even though the defendant set forth his grievance in his pro se petition before that appeal was heard by the supreme court. Because the defendant's manifest effort to call his trial attorney's conflict of interest to the attention of the reviewing court was thwarted by his appointed appellate counsel, precluding consideration of the issue the defendant now raises is inconsistent with the spirit and ultimate purpose of the Post-Conviction Hearing Act. See People v. Frank (1971), 48 Ill.2d 500, 503-04, 272 N.E.2d 25.
Next, the State contends that unlike the inconsistent relationship between an accused and his counsel condemned in People v. Stoval (1968), 40 Ill.2d 109, 239 N.E.2d 441, the defendant's trial attorney in this case had no concurrent conflict of interest while he represented the defendant. He had left the State's Attorney's office to become a full-time private attorney. The State concludes this argument by asserting that there was no evidence that the attorney's minimal contact with the defendant's case in preliminary proceedings while he was an assistant State's Attorney in any way affected his vigorous and competent representation of the defendant at trial.
2 The answer to the State's argument is supplied by People v. Kester (1977), 66 Ill.2d 162, 167-68, 361 N.E.2d 569, where the court rejected an identical contention in a factual setting similar to that presented in this case. In Kester, the representation of two clients with conflicting interests was also not concurrent. There, as here, the State argued that the former assistant State's Attorney turned defense counsel participated in the prosecution of defendant's case only in routine, preliminary matters involving minimum contacts of a "highly formalistic" nature. The court's response in Kester was:
"* * * where counsel has repeatedly appeared on behalf of the State in the particular case in which he is now representing defendant, we are not persuaded that inquiry into the precise nature and extent of his personal involvement is either necessary or desirable. While there has been no showing that, as assistant public defender, counsel did not represent the defendant in a competent and dedicated manner with complete loyalty to him, we conclude that a potential conflict was present, and, in accordance with Stoval, we hold that it was unnecessary for the defendant to show that actual prejudice resulted therefrom." Kester, 66 Ill.2d 162, 168.
3, 4 Even when defense counsel is in a conflict of interest position because of his previous involvement in the case, a defendant who knows of the prior association may accept counsel's assistance, thereby waiving any claim that he was deprived of his sixth amendment right to counsel. (Kester; People v. Schmidt (1978), 61 Ill. App.3d 7, 9, 377 N.E.2d 553.) Courts>, however, are reluctant to hold that an accused has waived fundamental constitutional rights, and indulge in every reasonable presumption to avoid such a waiver. They apply the rule that an "intentional relinquishment or abandonment of a known right or privilege" is required to constitute a waiver resulting in the loss of fundamental rights. (Johnson v. Zerbst (1938), 304 U.S. 458, 464, 82 L.Ed. 1089, 58 S.Ct. 610; Stoval.) People v. Coslet (1977), 67 Ill.2d 127, 364 N.E.2d 67, Kester, and Stoval all reflect an insistence by our supreme court that the courts> of this State ...