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03/23/88 the People of the State of v. Henry Carter Hillenbrand

March 23, 1988





521 N.E.2d 900, 121 Ill. 2d 537, 118 Ill. Dec. 423 1988.IL.409

Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of La Salle County, the Hon. Alexander T. Bower, Judge, presiding.


JUSTICE WARD delivered the opinion of the court. JUSTICE RYAN took no part in the consideration or decision of this case.


Eighteen years ago, the defendant, Henry Carter Hillenbrand, pleaded guilty to two counts of murder. Before he was sentenced, he escaped from the La Salle County jail and was a fugitive for 13 years until his capture and return to La Salle County in June 1983. He filed a motion to withdraw his guilty plea, which, after an evidentiary hearing, was denied. He elected to be sentenced under the law in effect at the time of the crimes. (Ill. Rev. Stat. 1969, ch. 38, par. 9-1(b)), and was sentenced to 50 to 150 years on the first murder charge and 80 to 240 years for the other murder, to be served consecutively. The appellate court affirmed the denial of the motion to withdraw the guilty plea but reversed the sentence and remanded for the imposition of concurrent sentences. (146 Ill. App. 3d 1075, 1083.) The defendant and the State petitioned for leave to appeal to this court; we allowed both petitions and consolidated them for review.

Hillenbrand was indicted in the circuit court of La Salle County for the June 29, 1970, murders of Patricia Pence and George Evans. He originally pleaded not guilty to the murder counts but withdrew that plea and entered a plea of guilty on October 19, 1970, and a judgment of guilty was entered. The factual basis, to which the defendant had stipulated, was read into the record at the time he pleaded guilty. The record shows the following. On June 29, 1970, the defendant parked his car several blocks from the residence of George Evans. Carrying a .22-caliber rifle wrapped in a blanket, he walked several blocks to Evans' house. He arrived about 7 a.m. and found Evans and Pence in bed together. Pence and the defendant had previously lived together and had a daughter, although they lived separately at the time of the murders. The defendant shot Evans in the head and then used the rifle as a bludgeon against Pence with such force that the stock of the rifle broke off. The defendant then took Pence to his car, and they went to the defendant's house. The defendant chased Pence outdoors and shot her; he then pursued the wounded woman through the backyards of several houses, and she died on the back porch of a neighbor's residence. Several neighbors saw the shooting through their windows.

The defendant first contends that his attorney, Edward Rashid, at the time he entered the plea of guilty, labored under a per se conflict of interest as he had regularly represented Patricia Pence's parents in business and personal matters. He contends, relying on People v. Stoval (1968), 40 Ill. 2d 109, that, because Rashid operated under a per se conflict of interest, the defendant was presumptively prejudiced and his right to effective assistance of counsel was violated. As a result of this conflict of interest, the defendant contends, his conviction should be vacated and he should be allowed to withdraw his guilty plea.

The State says the Stoval rule is premised on the existence of a lawyer's contemporaneous professional commitment to another client. The State says no such relationship existed here because the Pences had not hired Rashid on a retainer basis, and he had concluded his work for the Pences prior to representing the defendant on these charges.

At the evidentiary hearing on the defendant's motion to withdraw his plea of guilty, Shirley Palochko, Rashid's secretary and bookkeeper for nine years, testified. Rashid had died in 1976. Palochko testified that Rashid had prepared personal and business income tax returns for June and Charles Pence, the parents of Patricia Pence. Mr. Pence, according to Palochko's testimony, was a "steady client" of Rashid between 1965 and 1970. She testified that Patricia Pence and the defendant operated a restaurant, and Rashid prepared their income tax returns for that business. The defendant had also come to Rashid's law office many times for legal services, including tax work. Rashid represented Mr. Pence in a marriage dissolution action against his wife, June, but had concluded his representation in the Pence divorce prior to the murders. Rashid had also represented Mr. Pence on a gambling charge prior to the time of the shootings. Palochko testified that Rashid handled principally civil matters, although he did occasionally take criminal cases. The Pences did not have Rashid on retainer, and Palochko said she knew that Mr. Pence had been represented later by two other attorneys on his divorce and post-decree matters. Rashid did not receive substantial legal fees from either of the Pences or Patricia Pence. The defendant paid no legal fees for Rashid's volunteered representation on the murder charges.

The right to effective assistance of counsel is a fundamental right and entitles the person represented to the undivided loyalty of counsel. (People v. Washington (1984), 101 Ill. 2d 104, 109, cert. denied (1984), 469 U.S. 1022, 83 L. Ed. 2d 367, 105 S. Ct. 442; People v. Coslet (1977), 67 Ill. 2d 127, 134; People v. Stoval (1968), 40 Ill. 2d 109, 111.) This court held in People v. Stoval (1968), 40 Ill. 2d 109, 112, that allegations and proof of prejudice are unnecessary in cases when defense counsel, without the knowledgeable assent of the defendant, might not have an undivided loyalty to his client because of his commitments to others. (People v. Coslet (1977), 67 Ill. 2d 127, 133.) There was no showing in Stoval that the attorney had not properly conducted the defense of the accused, but this court determined that sound public policy required representation free from conflicts of interest. If a conflict of interest "in the form of conflicting professional commitments is shown, defendant need not demonstrate any prejudice to justify reversal." (People v. Lewis (1981), 88 Ill. 2d 429, 436, cert. denied (1983), 460 U.S. 1053, 75 L. Ed. 2d 932, 103 S. Ct. 1501; see also People v. Fife (1979), 76 Ill. 2d 418, 424.) The defendant, however, must show the attorney has a contemporaneous conflicting professional commitment to another. People v. Free (1986), 112 Ill. 2d 154, 168-69, cert. denied (1986), 479 U.S. 871, 93 L. Ed. 2d 170, 107 S. Ct. 246; People v. Washington (1984), 101 Ill. 2d 104, 114; People v. Coslet (1977), 67 Ill. 2d 127, 133-34.

Leave to withdraw a plea of guilty is not granted as a matter of right, but as required to correct a manifest inJustice under the facts involved. The standard under which this court will review the denial by a trial court of a motion to withdraw a guilty plea has been established. The general rule is that it is within the sound discretion of the trial court to decide whether a plea of guilty may be withdrawn under Rule 604(d) (107 Ill. 2d R. 604(d)), and that decision will not be disturbed unless it appears that the guilty plea was entered through a misapprehension of the facts or of the law, or that there is doubt of the guilt of the accused and the ends of Justice would better be served by submitting the case to a trial. People v. Hale (1980), 82 Ill. 2d 172, 176.

Palochko's testimony established that Rashid regularly represented the Pences from 1965 to early 1970. He had also represented Patricia Pence on tax matters in connection with the restaurant, but that representation was concluded long before the murders. Rashid was not on retainer for the Pences, he had concluded all of his services prior to representing the defendant on these charges, he was not the only attorney the Pences consulted, and he derived little of his income from representation of the Pences. Under the circumstances, we conclude that Rashid did not have a contemporaneous professional commitment to the Pences that created a conflict of interest in his representation of the defendant.

The defendant also argues that, even though his attorney may not have been representing any of the Pence family members at the time of these murder charges, Rashid had a financial interest in seeking to maintain the Pences' favor. In order that he would continue to receive business from the Pences, the defendant says Rashid had reason to stay in their good graces, creating a financial interest in retaining their favor. Too, because the Pences were possible prosecution witnesses on the murder charges, the defendant claims Rashid was in a conflict of interest situation. The State responds that this argument is contrary to People v. Coslet (1977), 67 Ill. 2d 127, 133, which stated that Stoval will not be followed when the only basis for doing so is the possibility of financial gain by the attorney.

This court has recognized that, in determining if a conflict of interest exists when defense counsel has represented a possible prosecution witness, one factor to be considered is whether the attorney's pecuniary interest and desire for possible future business might cause him to avoid vigorous cross-examination that might embarrass or offend the witness. (People v. Cunningham (1985), 107 Ill. 2d 143, 149-50.) As the State points out, the defendant's reliance on People v. Robinson (1979), 79 Ill. 2d 147, and People v. Karas (1980), 81 Ill. App. 3d 990, is misplaced. In Robinson, the court found that a professional relationship between the defendant's attorney and another client was ongoing and active in that at the time of the defendant's trial, the prosecution witness still owed legal fees to the defendant's attorney. (Robinson, 79 Ill. 2d at 161.) Similarly, the conflict in Karas was based on the attorney's representation of both the defendant and the victims of the murder charges, the co-owners of a restaurant, which was deemed to be an active relationship because the restaurant still owed legal fees to the lawyer's firm. (Karas, 81 Ill. App. 3d at 995.) There is no allegation here, nor any evidence, that the Pences still owed Rashid legal fees, which could make the professional relationship active and ongoing. The situation here also differs markedly from that in People v. Kester (1977), 66 Ill. 2d 162, which the defendant relies upon, because the prosecutor there had personally prosecuted the defendant and later assumed the duties of court-appointed defense counsel for that defendant in the same criminal proceeding.

The alleged pecuniary interest of Rashid as the basis of a conflict is speculative at best, as Palochko testified Rashid did not derive significant income by representing the Pences. Moreover, "[t]he test is not and cannot be based only upon the source of a financial gain by the attorney. A rule based solely on financial gain would not only be unworkable in the everyday practice of law but would also have no necessary correlation with the conflicts of interest that arise in such practice. The Stoval rule, based upon actual commitments to others, is both workable and necessarily correlates with such conflicts." (Emphasis added.) (People v. Coslet (1977), 67 Ill. 2d 127, 133.) Rashid was not appointed to represent the defendant but voluntarily undertook the representation. It would be unreasonable to believe that Rashid would volunteer to represent Hillenbrand if he was concerned about currying the Pences' favor for future business. We would observe also that Rashid had previously represented Hillenbrand, which may have prompted his volunteering to represent the defendant on these charges. We Judge that Rashid had neither an ongoing professional commitment to the Pences nor a financial interest in maintaining their favor that would have created a conflict of interest in representing the defendant. The trial court did not err in denying the defendant's motion to withdraw his guilty plea, based on this allegation.

The defendant also argues that his motion to withdraw his plea of guilty should have been granted as his counsel rendered ineffective assistance. The defendant claims that he did not knowingly and voluntarily enter the plea because his attorney failed to advise him of the potential defense of intoxication. Without knowledge of the possible defense, the defendant says he could not make an informed choice to plead guilty. The defendant also argues that Rashid failed to adequately investigate that possible defense as he did not talk to the potential defense witnesses who had observed the defendant on the morning of the shootings. The trial court found (1) no evidence ...

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