APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
516 N.E.2d 1383, 163 Ill. App. 3d 939, 115 Ill. Dec. 27 1987.IL.1825
Appeal from the Circuit Court of Winnebago County; the Hon. Robert C. Gill, Judge, presiding.
JUSTICE REINHARD delivered the opinion of the court. UNVERZAGT, J., concurs. JUSTICE WOODARD, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD
On February 13, 1985, defendant, Roger Hawkins, entered a negotiated plea of guilty to aggravated battery and, pursuant to the plea agreement, was sentenced to probation for 30 months. No appeal was taken from this judgment of conviction. On October 22, 1985, a petition to vacate probation was filed. Following a hearing, defendant was found in violation of his probation. On April 17, 1986, his probation was revoked, and he was sentenced to a four-year term of imprisonment.
Defendant appeals from the April 17, 1986, order revoking his probation and sentencing him to imprisonment raising the single issue of whether he has been deprived of the effective assistance of counsel at the probation revocation proceedings where he was represented by the public defender's office, which had withdrawn as his counsel from the proceedings on his original conviction because of a conflict of interest perceived at that time.
We need recite only that part of the record relevant to the issue raised in this appeal. Defendant was charged with aggravated battery, and the Winnebago County public defender was appointed as his counsel. At defendant's initial appearance before the court, the assistant public defender filed a motion to withdraw as defendant's attorney explaining that a conflict of interest existed because, in another pending case against defendant, an employee of the public defender's office was the complaining witness and the office had withdrawn from that case. Without Discussion, the motion was granted, and attorney Gordon Ring, who represented defendant in the other pending case, was appointed to represent him in the instant case. Eventually, on February 13, 1985, defendant entered a negotiated plea of guilty to aggravated battery and was sentenced to a 30-month term of probation. Among the conditions of probation was that he participate in psychological counseling. As part of the plea agreement, the pending misdemeanor charge, which the public defender's office had referred to earlier when claiming a conflict of interest, was dismissed.
On October 22, 1985, a petition to vacate probation was filed alleging that defendant violated the terms of his probation by wilfully failing to pay his fine and court costs and by failing to participate in psychological counseling as ordered. On October 30, 1985, the Winnebago County public defender was appointed to represent defendant and continued to represent defendant throughout the probation revocation proceedings. At no time in the proceedings below did defendant voice any objection to this representation. Following a hearing, he was found in violation of the terms of probation, and his probation was revoked. He was sentenced on April 17, 1986, to a four-year term of imprisonment on his original conviction for aggravated battery. Defendant now appeals from the April 17, 1986, order.
Defendant's sole issue presented on review is whether he was denied the effective assistance of counsel at the probation revocation proceedings when he was represented by the public defender's office, which had withdrawn as his counsel from the proceedings on the original conviction because of a conflict of interest. The conflict of interest asserted in the original proceeding was that an employee of the public defender's office was the complaining witness against defendant in a misdemeanor case pending at the same time as the aggravated battery charge against him. Citing People v. Lewis (1981), 88 Ill. 2d 429, 430 N.E.2d 994, as setting forth the test for a per se conflict of interest of counsel which would without any showing of prejudice deprive a defendant of effective assistance of counsel, defendant contends that a per se conflict of interest existed when the public defender's office resumed its representation of him at the probation revocation proceedings after withdrawing as counsel, for the reason stated above, in the cause which led to his original conviction.
"This court has repeatedly stated that a defendant's fundamental right to effective assistance of counsel entitles the person represented to the undivided loyalty of counsel and prohibits a defense attorney from representing conflicting interests or undertaking the discharge of inconsistent obligations. [Citations.] In furtherance of this fundamental right, this court has adopted a per se rule which provides essentially that where defense counsel is involved in an actual or potential conflict of interest, it is unnecessary for the defendant to establish actual prejudice, as prejudice is presumed by law. [Citations.]"
In People v. Lewis (1981), 88 Ill. 2d 429, 430 N.E.2d 994, the court stated that "[only] in those instances where the conflict arose in counsel's professional relationships and obligations have the past decisions of this court dispensed with the requirement that prejudice be shown." (Emphasis added.) (88 Ill. 2d at 438, 430 N.E.2d at 999; see also People v. Davis (1983), 97 Ill. 2d 1, 15-16, 452 N.E.2d 525, 532.) As further held in Lewis, the extension of the per se rule to supposed conflicts arising from personal relationships which do not involve substantial emotional ties is not warranted. (Lewis, 88 Ill. 2d at 438, 430 N.E.2d at 999.) In Lewis, the court found no per se conflict of interest in counsel's work-based acquaintance with a former probation officer murdered in the course of a robbery for which defendant was charged. 88 Ill. 2d at 436, 430 N.E.2d at 998.
The instant case does not involve a conflict in the public defender's office's professional commitments, nor is there any showing of a substantial emotional tie of the office to the complaining witness in the prior, unrelated case. Consequently, the per se rule is inapplicable under the circumstances here.
While the public defender's office, on its own, deemed it a conflict of interest to represent defendant in the original proceeding while another misdemeanor case against him was pending in which an employee of that office was the complaining witness, at the time of the initiation of the separate probation revocation proceedings, some eight months had elapsed since the dismissal of the misdemeanor case. There is no indication that the fact that an employee in the public defender's office was once the complaining witness in the prior, unrelated misdemeanor case, which was disposed of prior to the probation revocation proceeding at hand, was a strong emotional involvement of a personal nature which might affect the public defender's office in its representation of defendant in this proceeding. It should not be presumed that attorneys are unable to Judge whether they can subordinate personal feelings to professional duty. (People v. Lewis (1981), 88 Ill. 2d 429, 440, 430 N.E.2d 994, 999-1000.) Although the public defender's office felt it advisable to withdraw from its representation of defendant in the original proceeding while another case was pending against him involving an employee of its office, we hold that this situation does not create a per se conflict of interest by representation of defendant in a future, separate probation revocation proceeding unrelated to the previously dismissed case involving its employee.
As defendant has argued only a per se conflict and has not claimed prejudice from this representation to justify reversal, we affirm the judgment of the circuit court of Winnebago County for the reasons stated above.
The Dissent raises sua sponte the issue of whether the trial court's finding that defendant violated the terms of his probation which required that he participate in psychological counseling was contrary to the manifest weight of the evidence. While the general rule is that, where a question is not raised or reserved in the trial court or, though raised in the lower court, it is not urged or argued on appeal, as is the case here, it will not be considered and will be deemed to have been waived, we recognize that this is a rule of administration and not of jurisdiction, and it will not operate to deprive an accused of his constitutional right of due process. (See People v. Burson (1957), 11 Ill. 2d 360, 370-71, 143 N.E.2d 239, 245; People v. Torres (1977), 47 Ill. App. 3d 101, 105-06, 361 N.E.2d 803, 807.) Other than for jurisdictional reasons, however, a reviewing court should not normally search the record for unargued and unbriefed reasons to reverse a trial court judgment. Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 386, 385 N.E.2d 664, 667.
After a thorough review of the record, we are not persuaded that the trial court's finding that defendant violated the terms of his probation was contrary to the manifest weight of the evidence or that defendant was otherwise deprived of his constitutional right to due process in the probation revocation proceedings. There was ample credible evidence that, while on probation, defendant missed approximately 11 counseling sessions, some of which defendant admitted he failed to attend because he was frustrated or due to other circumstances. He did not testify that he was under any mental disorder during those times which prevented his attendance, as is suggested in the Dissent. In fact, the evidence shows that defendant's acute psychotic episodes occurred before he was placed on probation and subsequent to his probation revocation hearing when he refused to take his medication. Accordingly, there is no basis for sua sponte raising this issue.
JUSTICE WOODARD, Dissenting:
I respectfully Dissent on the basis that defendant did not have the requisite mental capacity to violate his probation and that the probation revocation violated defendant's constitutional right as guaranteed by the eighth amendment. This court should address these issues in this case even though they were not raised on appeal.
Rule 366 of the Illinois Supreme Court Rules provides in pertinent part:
"In all appeals the reviewing court may, in its discretion, and on such ...