APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION
520 N.E.2d 792, 167 Ill. App. 3d 602, 117 Ill. Dec. 441
Appeal from the Circuit Court of Cook County; the Hon. Thomas R. Fitzgerald, Judge, presiding. 1987.IL.1978
PRESIDING JUSTICE McMORROW delivered the opinion of the court. JOHNSON and JIGANTI, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW
Defendant David Watson appeals from the trial court's denial of his motion to withdraw his guilty plea pursuant to Illinois Supreme Court Rule 604(d). (107 Ill. 2d R. 604(d).) Defendant argues that the trial court erred in denying the public defender's motion to withdraw as counsel at the hearing on his motion to vacate his guilty plea. He contends that the public defender was placed in a position of conflict of interest in representing him at this hearing, because his motion to vacate alleged the ineffective assistance of the first public defender who represented him before and during the negotiation and entry of his guilty plea. Defendant also asserts on appeal that his guilty plea was involuntary because of the ineffective assistance of his first public defender and because of the trial court's failure to admonish defendant in open court of the terms of his plea agreement with the State.
Defendant was charged by indictment with one count of residential burglary and one count of possession of burglary tools (Ill. Rev. Stat. 1985, ch. 38, pars. 19-3, 19-2(a)) and an attorney from the Cook County public defender's office was assigned to represent him. On the day set for trial, defendant moved for the appointment of counsel other than the public defender on the ground that the public defender had been unable to fully or adequately investigate his case. The trial court denied defendant's motion.
The public defender then motioned for a continuance to allow him time to interview witnesses that defendant had just informed him could testify for the defense. The trial court denied this motion as well. Defendant addressed the court himself, stating that he was not ready for trial and that it was unfair to deny his first request for a continuance. The trial court passed the case to allow defendant time to consult with counsel.
When the case was recalled, defendant requested a judicial conference. As a result of this conference, defendant agreed to plead guilty to one count of residential burglary and the State agreed not to prosecute the charge for possession of burglary tools. The court admonished defendant of the nature of the charges and the range of possible sentences permissible for those offenses. It also admonished defendant that he had a right to plead not guilty and demand trial, and that by pleading guilty he was giving up his rights to plead not guilty, demand a jury or bench trial, present evidence on his own behalf, remain silent, be presumed innocent, and demand that the State present evidence of his guilt beyond a reasonable doubt. Defendant stated that he understood that he had these rights and was waiving them by pleading guilty. Defendant confirmed that he was pleading guilty voluntarily of his own free will, and that no threats, force, or promises apart from the plea agreement had compelled him to plead guilty. Defendant also stipulated to the facts alleged by the State. The trial court accepted the plea of guilty and sentenced defendant to 12 years' imprisonment, as was agreed upon by the State and defendant.
Thereafter defendant filed a pro se motion to withdraw his guilty plea. He alleged that he had received ineffective assistance from the public defender who represented him during his plea negotiation and at the entry of the guilty plea. The court appointed an attorney from the "Multiple Defendants Conflicts Unit" of the public defender's office to represent defendant on his motion to withdraw his plea.
At the hearing on defendant's motion to vacate his guilty plea, the public defender asked to withdraw from representing defendant. Counsel asserted that it would constitute a conflict of interest for him to argue that another public defender had provided defendant ineffective assistance of counsel. When questioned by the trial court whether he felt unable to represent defendant, counsel responded that he "personally" did not have any conflict and had the highest loyalty to his client. The trial court denied the public defender's motion to withdraw as counsel.
Evidence presented at the hearing on defendant's motion to vacate his guilty plea established that his first public defender had discussed the charges with defendant, sought discovery of the State's evidence, reviewed the State's response, including the police report of the incident, and investigated the scene of the crime. The evidence also demonstrated that he spoke with defendant on four occasions regarding the case, including a review of the evidence against the defendant; ...