Appeal from the Appellate Court for the Fifth District; heard
in that court on appeal from the Circuit Court of Williamson
County, the Hon. Brockton D. Lockwood, Judge, presiding.
JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
Defendant, James C. Royse, was arrested on January 10, 1980, and charged with unlawful delivery of more than 30 grams of a controlled substance, cocaine (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1401(a)(2)). Defendant was convicted on November 14, 1980, and a motion for a new trial was denied on January 22, 1981. A divided appellate court affirmed the circuit court of Williamson County (107 Ill. App.3d 326), and we granted defendant's petition for leave to appeal (87 Ill.2d R. 315(a)).
Defendant, James Royse, was residing at 238 McNeil, Carterville, Illinois, when he was arrested by agents of the Southern Illinois Enforcement group. Also residing at that address were co-defendant, Kevin Young, and his girlfriend, Debbie Clinton. Royse had moved to the 238 McNeil address in November of 1979, and had paid Young $80 a month rent, plus a portion of the utilities. Royse had moved there at the invitation of Debbie Clinton because she felt it would be more economical for three people to share living expenses.
In December of 1979, undercover agents Bruce Townsend and William Mehrtens visited 238 McNeil to inquire about the availability of drugs. The first time agent Mehrtens visited the address was on December 11, 1979, when he purchased four blotter squares of LSD from Young. Mehrtens made arrangements to purchase more LSD two days later. When Mehrtens returned on December 13, 1979, Royse answered the door. Mehrtens and Royse provided conflicting accounts of the subsequent transaction. Mehrtens testified that Royse stated Young was not home, and that Mehrtens told Royse that he had arranged a purchase of LSD for that night. Royse went to the kitchen and returned with the LSD. He took the money and indicated that he would give it to Young. Mehrtens testified at the preliminary hearing that Royse told him it was not his business, that he did not want anything to do with it, and that in the future, Mehrtens should talk to Young.
Royse testified that he told Mehrtens that "he could not help him at all," and that Mehrtens pressured him to get the LSD. Royse testified that Mehrtens was angry and that Young would also be angry if Royse "blew the deal" that Young had set up. Royse knew that Young was out of work and that Young would be mad if Royse did not get him some money. Royse testified that he went to a cabinet where he had seen Young store some papers. Royse brought papers labeled "LSD" to Mehrtens, and Mehrtens placed $32 on a table in exchange for the four blotter squares of LSD he found in the papers.
Undercover agent Townsend first visited 238 McNeil on December 19, 1979, and he returned there approximately six times between December 19, 1979, and January 9, 1980. At trial, Townsend testified that he and Mehrtens drove to 238 McNeil on January 9, 1980, and that he talked with Kevin Young. Young said he did not have any LSD, but that he had something else that Townsend might be interested in. They went into the kitchen, and Young showed him a white, powdery substance that Young said was cocaine. Young said that he had three ounces available, and that the price was $500 per quarter ounce.
Townsend testified that he and Mehrtens returned to 238 McNeil Street later that day to obtain a "taster" of cocaine. Townsend and Mehrtens returned to Carbondale, where they performed a field test that reacted positively for the presence of cocaine. Townsend testified that he did not discuss the deal with Royse or Clinton, although they were present on January 9, 1980.
The two agents returned to 238 McNeil on January 10, 1980, at about 12:30 p.m. Mehrtens remained in the car with $4,500 in prerecorded bills while Townsend went into the house. Townsend testified that he asked Royse and Young whether it was "snowing" outside, referring to the availability of cocaine. Townsend testified that Royse and Young replied affirmatively. Townsend further testified that he said someone should come out to the car and count the money, and that Royse sat in the front seat of the agents' car and counted the money twice. Mehrtens and Townsend both testified that Royse drove away in his car to obtain the cocaine. They indicated that Royse returned with the cocaine and that Royse, Young, Mehrtens and Townsend completed the transaction in the kitchen at 238 McNeil.
Royse's version of the events leading up to the arrest is quite different from that provided by Townsend and Mehrtens. Royse testified that on January 10, 1980, he was in the back yard when agent Townsend arrived. When he went inside, he saw Townsend talking to Young, but sat down to watch television with Debbie Clinton. Young called out that he "needed someone to count the money." At that point, Royse realized Townsend was there to buy cocaine, and he said he did not want to get involved. Royse testified that Townsend called him "a chicken sh____" and a "narc," and that Young threatened to throw him out of the house if he did not help. Royse was unemployed and owed Young $80, so he complied with Young's request. Royse told Townsend, "This is none of my business and I really don't want to get involved at all." When Royse returned to the house, Young gave him a packet of cocaine and told him to drive around for a short time so it would appear that the cocaine had not come from the house. When Royse returned, he threw the cocaine on Young's scale, claiming he had nothing to do with the deal, and left the room.
Young, Royse and Clinton were arrested after this transaction. Debbie Clinton pleaded guilty to a lesser charge of possessing less than 30 grams of cocaine and did not receive a prison sentence. Young forfeited bond and did not appear for trial. Young was tried in absentia under section 115-4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 115-4.1). Royse was tried jointly with Young and asserted the defense of entrapment. The jury was instructed as to entrapment and accountability.
Before trial, Royse's lawyer received an offer of employment from the prosecutor. Defense counsel accepted the offer of employment shortly after Royse and Young were found guilty as charged. No conflict-of-interest question was presented on appeal to the appellate court or in this court, but defendant Royse was represented by different counsel at the sentencing hearing. After oral argument, the trial judge made the following statement:
"I believe that the commission was probably facilitated and induced by the co-defendant Young. The defendant has no history of prior criminal or delinquent misconduct, and I don't think such conduct would reoccur in this defendant. I think that his character and attitude, both at trial and today, are such that any future misconduct would be very unlikely, and I find that there are no aggravating circumstances in this case. The deterrent effect of a sentence on a Class X offense, and this Class X offense, I think, is of little or no value as in my opinion the minimum in this case, as counsel has said, is far too great. The defendant in this case has been shown to be an aider and abettor, and as such he is raised to the level of a Class X felon. It is an offensive sentence, it is an unreasonable sentence and it is an unjustified sentence in this case, but it is the required sentence under the prevailing statute. As a result of which I am sentencing the defendant to six years in the custody of the Illinois Department of Corrections."
We now address the first issue presented for review, whether the trial court erred in denying defendant's motion for a new trial based on the distinction between the standard of competence for retained and appointed counsel. After defendant Royse was found guilty as charged, defendant's new counsel argued a motion for a new trial. While denying the motion, the trial judge stated:
"I have seen cases where counsel has done a worse job than the Defense counsel in this case. Not a lot, but I have seen some in major cases. The problem is, and if this were appointed counsel I would have no hesitancy in deciding that his conduct ...