APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
L. SAMUELS, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
The defendant, Ronnie Adams, was charged by information on January 7, 1978 with possession of a stolen vehicle (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 4-103(a)), and theft of that vehicle (Ill. Rev. Stat. 1977, ch. 38, par. 16-1). On May 16, 1978, Adams, who was represented by an assistant public defender, entered a plea of guilty to the theft charge and was sentenced to three years' probation. *fn1 Defendant now appeals from an order of the trial court denying his motion to withdraw his guilty plea. Defendant contends that the court erred in refusing to appoint counsel other than the public defender to represent him on the motion, as that motion was based on allegations of incompetence of counsel and coercion.
We reverse the order of the trial court and remand for further proceedings.
Defendant's guilty plea was accepted only after the trial judge engaged in a colloquy with him which fully complied with the requirements of Supreme Court Rule 402. (Ill. Rev. Stat. 1977, ch. 110A, par. 402.) During that colloquy defendant stated that no threats or force was used to induce his plea. After sentencing, defendant was advised of his right to appeal providing he filed a motion to withdraw his guilty plea and set aside the judgment. He was also advised that if he was indigent an attorney would be appointed to represent him on such a motion.
On June 16, 1978 defendant filed a pro se motion to withdraw his guilty plea. In that motion he alleged that he and his attorney:
"* * * were not totally being client and attorney to each other. It seems that he was not in the least interested in my case or well being. So I was really standing alone. I think he could've [sic] done better with my case. There was no complaining witnesses, or arresting officer in court to even testify against me."
"This conviction and three year probation was forced to [sic] me. `It was take it now or stay locked up.'"
The motion was accompanied by a sworn affidavit stating that the statements in the motion were true and correct. Also filed with the motion was a certificate of compliance with Supreme Court Rule 604(d) (Ill. Rev. Stat. 1977, ch. 110A, par. 604(d)), signed by the assistant public defender (hereinafter counsel), who had represented defendant on his guilty plea. That certificate indicated that on June 13, 1978, the defendant telephoned counsel and expressed his wish to withdraw his plea, giving "general reasons." A "general motion" was prepared and then amended, after counsel consulted with defendant in court, with the allegation that "counsel was ineffective." On June 14, 1978, according to counsel's statements in the certificate, counsel presented the motion to the court, but he also represented to the court that defendant was alleging ineffective assistance by him, and he requested that another attorney be appointed to represent defendant. The court struck that motion, apparently because it was not supported by affidavit as required by Rule 604(d) when the motion is based on facts not in the record. Counsel further stated in the certificate:
"I consulted with Mr. Adams personally in my office after court on June 14, 1978 concerning his desire to withdraw his plea. * * * I cannot fully and fairly represent Mr. Adams in preparing or arguing this motion for the following reasons:
a. Mr. Adams indicated to me he was coerced into pleading guilty, and by implication I was part of that coercion.
b. Mr. Adams was hesitant in fully setting forth all his reasons to me for plea withdrawal because he said I got him to plead guilty when he was innocent, and I therefore don't know all of his reasons.
c. He states that I ineffectively ...