Appeal from the Circuit Court of Fulton County; the Hon.
Charles H. Wilhelm, Judge, presiding.
JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
The defendant-appellant, Edward G. Cunningham, was convicted of two counts of aggravated indecent liberties with a child and one count of indecent liberties with a child after a stipulated bench trial in Fulton County. The trial court imposed a sentence of 12 years' imprisonment for each of the two counts of aggravated indecent liberties and a sentence of 4 years for one count of indecent liberties. All three sentences were made concurrent.
On appeal, the defendant contends that he was denied his constitutional right to effective assistance of counsel throughout the trial court proceedings because his public defenders labored under a conflict of interest. The public defenders had represented two potential adverse witnesses, who pleaded guilty to charges of sexual assault involving the same complainant as in two of the counts against the defendant.
The pertinent facts in this case are as follows. On April 12, 1983, the defendant sought counseling with Dr. Harold Iwashita, a registered psychologist. The defendant revealed that he had been having sexual contact with some children. Iwashita reported defendant's conduct to the Department of Children and Family Services, which in turn contacted the Fulton County State's Attorney. Sergeant Daly of the Fulton County sheriff's office then conducted interviews with the defendant, his stepson, Gordon Griffith, and his three step-grandsons, David Griffith, Richard Roberts, and Joseph Roberts.
The interviews revealed frequent sexual contact among the members of the family. The defendant admitted to sexual contact with his three step-grandsons and with his stepson. The defendant was then charged by information with the above offenses. On April 14, 1983, Gordon Griffith and Richard Roberts were charged with taking indecent liberties with David Griffith. The trial court appointed Fulton County public defender Thomas Ramsey to represent all three men. On April 25, 1983, each entered a plea of not guilty, and they continued to be represented by the public defender.
On July 13, 1983, Richard Roberts, represented by public defender Ramsey, entered a negotiated plea of guilty to two counts of indecent liberties with a child. He received a sentence of 30 months' probation, on condition that he spend 120 days in jail and seek mental health treatment. On July 15, 1983, public defender Ramsey filed a motion to suppress the defendant's statements to the Fulton County authorities. The motion alleged that the statements were obtained only through a breach of a psychologist-patient privilege that existed between Dr. Iwashita and the defendant. On August 1, 1983, Gordon Griffith, represented by assistant public defender, John Clark, also entered a negotiated plea of guilty to one count of indecent liberties. Griffith received the same sentence as Roberts.
On September 13, 1983, a hearing was held on the defendant's motion to suppress. After testimony was heard Ramsey informed the court that a possible conflict of interest existed because Richard Roberts and Gordon Griffith were potential witnesses for the State. Ramsey asked leave to withdraw as the defendant's counsel if the motion to suppress was denied. The trial court later denied the motion. However, Ramsey did not subsequently file a written motion to withdraw.
On October 24, 1983, a stipulated bench trial was held at which the defendant was represented by attorney Clark. The defense stipulated to what Joseph Roberts, David Griffith, and Sergeant Daly would testify to if they were called as witnesses. The defense presented no evidence and the trial court convicted the defendant on all three counts. The trial court conducted a sentencing hearing on December 7, 1983. Sergeant Daly testified in aggravation as to the defendant's statements on April 13, 1983, and the court took judicial notice of the files of Gordon Griffith and Richard Roberts. The court then imposed sentence.
The sole issue on appeal is whether the defendant was denied effective assistance of counsel due to a per se conflict of interest.
In criminal proceedings, a defendant is guaranteed the right to assistance of counsel by the constitutions of both the United States and the State of Illinois. (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. 1, sec. 8.) The right to effective assistance of counsel requires that a defendant's attorney "not represent conflicting interests or undertake the discharge of inconsistent duties." (People v. Kester (1977), 66 Ill.2d 162, 166, 361 N.E.2d 569, 571.) Once an attorney has received the confidence of a client, he cannot serve an interest adverse to that client regarding the same general subject matter of his representation, even after the termination of his services. (People v. Coslet (1977), 67 Ill.2d 127, 132, 364 N.E.2d 67, 69-70; People v. Gerold (1914), 265 Ill. 448, 477, 107 N.E. 165, 177.) Thus, the Illinois Supreme Court has adopted a per se conflict of interest rule whereby a defendant need not allege or prove prejudice "in cases where a defense counsel, without the knowledgeable assent of the defendant, might be restrained in fully representing the defendant's interests due to his or her commitments to others, with even closer scrutiny being applied where counsel is appointed for defendant." People v. Coslet (1977), 67 Ill.2d 127, 133, 364 N.E.2d 67, 70.
The defendant contends that he was denied effective assistance of counsel because Ramsey and Clark labored under a per se conflict of interest when they represented the defendant while at the same time representing Richard Roberts and Gordon Griffith, respectively. In support of this contention the defendant maintains that Gordon Griffith and Richard Roberts were potential witnesses against him because they were charged with sexual misconduct toward David Griffith, who was also the complainant for two charges against the defendant. The defendant further maintains that even though Griffith and Roberts had been convicted and sentenced, the attorneys' obligation to Griffith and Roberts continued as to the subject matter of the representation and that the confidential relationship between his attorneys and the two potential State witnesses could have affected their representation of him. He also points out that evidence of his activities with Griffith and Roberts was presented in aggravation at sentencing.
In response, the State contends that no per se conflict of interest existed because the public defender's office terminated its representation of Gordon Griffith and Richard Roberts before the defendant's stipulated bench trial. Therefore, according to the State, the defendant had the burden of showing actual conflict at trial and resulting prejudice, and since he failed to do so, his convictions should be affirmed.
• 1 Initially we note that the defendant has not waived the conflict of interest issue. It is true that the defendant, Gordon Griffith, and Richard Roberts all appeared before the trial court on April 25, 1983, for arraignment. All three were represented by attorney Ramsey and all three pleaded not guilty. Thus, the defendant was aware of his attorney's representation of Griffith and Roberts. However, a strong showing of an intentional and knowing waiver of a conflict of interests issue is required for there to be a waiver. (People v. Mathes (1979), 69 Ill. App.3d 275, 281, 387 N.E.2d 39, 43.) Here, there is no indication in the record that the defendant was ever advised of either an existing or potential conflict of interest.
We now consider several cases cited by the defendant that we find persuasive. In People v. Johnson (1970), 46 Ill.2d 266, 265 N.E.2d 869, the defendant was jointly indicted with Westley and Lewis. The public defender was appointed to represent all three defendants. Prior to the defendant's trial, the indictment against Lewis was dismissed and he was granted immunity. In addition, Westley withdrew his plea of not guilty and entered a plea of guilty. Lewis testified for the State at the defendant's trial. On appeal, the Illinois Supreme Court rejected the State's argument that the dismissal of the indictment against Lewis terminated the attorney-client relationship between Lewis and the public defender and that therefore no conflict of ...