APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
507 N.E.2d 1237, 154 Ill. App. 3d 1076, 107 Ill. Dec. 868 1987.IL.501
Appeal from the Circuit Court of Jackson County; the Hon. William South, Judge, presiding; appeal from the Circuit Court of St. Clair County; the Hon. William B. Starnes, Judge, presiding; appeal from the Circuit Court of Christian County; the Hon. Joseph Fribley, Judge, presiding.
JUSTICE JONES delivered the opinion of the court. KASSERMAN and WELCH, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JONES
In each of these appeals, the office of the State Appellate Defender claims the existence of a conflict of interest which precludes it from providing effective representation. O.S.A.D. seeks leave to withdraw in each case and requests appointment of counsel outside the agency. The State contests the claim that O.S.A.D.'s representation places it in conflict with defendants' respective interests and suggests that if a district office of O.S.A.D. is confronted with an actual conflict of interest in any of these appeals, the appropriate remedy would be to transfer the appeal to a different district office rather than appoint outside counsel at great public expense. The various motions for leave to withdraw and objections thereto have been consolidated for opinion in view of the recurrence of the conflicts issues presented for our consideration.
In No. 5-86-0031, a jury in the circuit court of Christian County found defendant, Willie C. Roby, guilty of three counts of an offense relating to a motor vehicle (Ill. Rev. Stat. 1985, ch. 95 1/2, pars. 4-103(a)(1), (3), (4)) and one count of vehicle theft conspiracy (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 4-103.1). The trial court only entered judgment on the three counts of an offense relating to a motor vehicle and sentenced defendant to concurrent prison terms of four years on each count, a fine of $500 plus costs, and restitution in the amount of $700 as to count II only. Roby filed a timely notice of appeal and O.S.A.D.'s fifth district office was appointed as appellate counsel. At the time of its appointment, that office also represented a codefendant, Claudius Brooks, in a separate appeal (No. 5-86-0139). Brooks was charged by information with the same offenses but pleaded guilty to the conspiracy charge in return for a dismissal of the other charges. The criminal charges filed against Roby and Brooks stem from a purchase of a 1977 gray Camaro, the exchange of the gray Camaro's vehicle identification number with that of a stolen 1977 red Camaro, and the sale of the red Camaro to an innocent third party. O.S.A.D. moves to withdraw as Roby's appellate counsel due to the antagonistic position taken by Brooks in his appeal. O.S.A.D. contends that effective representation of Roby requires that a reasonable doubt argument be raised which will cast him as an innocent companion of Brooks, who was the actual culprit. O.S.A.D. argues that this appellate strategy will place it at odds with its zealous representation of Brooks, who also maintains a theory of innocence on appeal. To alleviate this conflict of interest, which O.S.A.D. regards as an actual conflict, it moves for leave to withdraw as counsel on appeal and appointment of counsel outside its agency.
The State asserts in its objection to the motion to withdraw that the reasonable doubt issue alluded to by O.S.A.D. will not create a conflict of interest with respect to its representation of Brooks. In support of this assertion, the State cites several supreme court decisions concerning the issue of joint representation by members of a public defender's office. In People v. Robinson (1979), 79 Ill. 2d 147, 158, 159, 402 N.E.2d 157, 162, the supreme court held that joint representation of multiple criminal defendants by two or more members of a public defender's office does not constitute a per se conflict of interest so as to deprive those defendants of effective assistance of counsel and that a public defender's office is not subject to the rule that a conflict of interest affecting one member of a private law firm disqualifies all members of the firm.
In People v. Spicer (1979), 79 Ill. 2d 173, 187, 402 N.E.2d 169, 176, an actual conflict did not exist where defendant's counsel found it necessary to cross-examine a co-defendant who was convicted in a separate trial and represented by a different assistant public defender. Upon an examination of the record on appeal, the supreme court found no evidence of impairment of cross-examination or evidence to suggest that defendant's interests were compromised in any way by the witness' representation by another assistant public defender. 79 Ill. 2d 173, 186, 402 N.E.2d 169, 176.
In People v. Miller (1980), 79 Ill. 2d 454, 461, 462, 404 N.E.2d 199, 202, 203, the supreme court reiterated its position that the disqualification of one assistant public defender due to a conflict of interest will not necessarily disqualify all members of the same office. After rejecting the per se analysis and scrutinizing the record for actual conflicts, the court concluded that none existed where different members of the public defender's office separately represented defendant and a witness to the case who was charged separately for the offense. The court examined the conflicts issue in light of the respective obligations of the attorneys involved. It was the duty of one attorney to represent defendant and the duty of the other to advise the witness of the implications of confessing in court. The court found that the limited role of the attorney representing the witness did not conflict with that of defense counsel. Moreover, the court observed that any attorney would have offered the advice given to the witness. 79 Ill. 2d 454, 462, 463, 404 N.E.2d 199, 203.
In People v. Neely (1980), 85 Ill. App. 3d 1016, 407 N.E.2d 814, defendant was represented by the office of the public defender of Cook County in his direct appeal from a murder conviction. After his conviction was affirmed, he filed a post-conviction petition and the office of the public defender of Cook County was again appointed to represent him. Post-conviction counsel requested leave to withdraw alleging the existence of a conflict of interest, since the petition raised a claim of incompetency of appellate counsel for not raising a certain issue on direct appeal. After noting that nearly 300 lawyers were employed in the public defender's office, the court held that no actual conflict of interest existed with respect to the post-conviction appointment. 85 Ill. App. 3d 1016, 1019, 407 N.E.2d 814, 816.
The State contends on the basis of the above-cited authority that no per se conflict of interest exists with respect to O.S.A.D.'s representation of Roby. Moreover, the State argues that no actual conflict exists.
Under Robinson, no per se conflict of interest is present here. Therefore, this court must examine the facts unique to this case to determine whether an actual conflict is present. (People v. Nelson (1980), 82 Ill. 2d 67, 73, 411 N.E.2d 261, 265.) In order to effectively pursue the reasonable doubt issue, O.S.A.D. in its defense of Roby must vigorously pursue a course of action antagonistic to Brooks, unlike Miller where the witness was merely counseled with respect to his rights against self-incrimination. Thus, in Miller, the aim of the assistant public defender representing the witness was not to damage defendant's position but to protect that of the witness. The conflicts issue pertaining to antagonistic defenses in the instant case is much stronger than in Miller, since blame is placed squarely on Brooks under Roby's theory of the case.
Another factor suggesting the existence of an actual conflict of interest relates to the size and structure of the fifth district office of O.S.A.D. In Neely, for example, the public defender's office consisted of an appellate division and a trial division totaling nearly 300 attorneys. In contrast, the fifth district office employs only 11 attorneys working in close proximity. Office of the State Appellate Defender Annual Report, Fiscal Year 1986.
We are persuaded that O.S.A.D.'s fifth district office labors under an actual conflict of interest with respect to its representation of Roby based on the antagonism of his appellate defense in relation to Brooks and the limited number of attorneys employed by O.S.A.D.'s fifth district office.
The cases cited by the State dealing with the absence of a conflict of interest pertain to appointments made in the trial court. Underlying the holdings in these cases is the economic consideration that substitute counsel would have to be provided from a limited pool of competent attorneys at great public expense. (People v. Robinson (1979), 79 Ill. 2d 147, 159, 402 N.E.2d 157, 162.) The same is not true on the appellate level, where the conflict involves joint representation by members of the same district office of O.S.A.D. In the event such a conflict occurs, as in this case, one possible remedy is to transfer the case to a different district office within O.S.A.D. Such a ...