APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
531 N.E.2d 84, 176 Ill. App. 3d 514, 125 Ill. Dec. 905 1988.IL.1633
Appeal from the Circuit Court of Livingston County; the Hon. Charles H. Frank, Judge, presiding.
JUSTICE McCULLOUGH delivered the opinion of the court. LUND and KNECHT, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH
Defendant and Reginald Nolan were charged with attempt (murder) (Ill. Rev. Stat. 1985, ch. 38, par. 8-4(a)) and aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12-4) as the result of the stabbing of Milan Martin, an inmate at the Pontiac Correctional Center, by inmates. The jury found Nolan not guilty. Defendant was found guilty on both counts and, subsequently, sentenced to 45 years' imprisonment on the attempt conviction and a concurrent 10 years' imprisonment on the aggravated battery conviction. The sentences were consecutive to the term of imprisonment defendant was then serving.
Defendant appeals arguing the trial court abused its discretion in denying his motion for a continuance to allow defense counsel to prepare for trial, defense counsel labored under a conflict of interest during the post-trial proceedings, and the aggravated battery conviction must be vacated.
We affirm the attempt conviction and sentence and vacate the conviction and sentence for aggravated battery.
After indictments issued, public defender David Ahlemeyer was appointed to represent defendant. Defendant's trial was consolidated with Nolan's trial, and defendant's motion to sever was denied. Ahlemeyer represented defendant and Nolan during several pretrial matters. On January 4, 1988, Judge Glennon denied defendant's motion to dismiss on speedy trial grounds, noting which delays to that date were attributable to defendant and Nolan. The trial was set for January 25, 1988. At a hearing on January 25, 1988, assistant public defender Paul Mason told Judge Charles Frank that he had been assigned the case that morning. Ahlemeyer was involved in a murder case and unavailable. Mason stated his experience concerned primarily juvenile trials and he was not familiar with the instant case. Mason further stated defendant wished to move for the appointment of a more experienced attorney and, alternatively, over defendant's objection, Mason was moving for a continuance to enable him to prepare for trial. Alternatively, defendant asked the case be dismissed based upon speedy trial grounds and because defendant had a right to a more experienced attorney. Mason stated he was unsure of the time factors.
Judge Frank denied defendant and Nolan's motion to dismiss for failure to appoint a more experienced attorney. He reserved ruling on a speedy trial grounds and noted that both Judge Glennon and Ahlemeyer were involved in a trial of a capital case. Judge Frank further noted that if in fact defendant and Nolan's trial was beyond the 120-day time period, this would be grounds for dismissal. However, he reserved ruling on the matter until a written motion was filed and he could check the case file.
Judge Frank asked whether Nolan and defendant knew that they had a right to continue the cause until Ahlemeyer became available to defend them. He then stated several alternatives were available to the defendants: continuing the trial for a week to give Ahlemeyer a chance to assist Mason; starting the trial the next Monday; or starting the next day, which he was reluctant to do. Mason then stated that he told defendant and Nolan that they had a right to continue the case until Ahlemeyer was available. However, neither defendant nor Nolan wanted to move for a continuance.
The prosecuting attorney suggested selecting a jury the following day and starting the evidentiary portion of the trial the following week. The court adopted this suggestion. Mason then stated Nolan and defendant wished the entire cause to proceed without a break after jury selection, as they believed the 120-day limit had expired. However, Mason stated the continuance after jury selection would assist him in preparing for trial.
Judge Frank responded there might be a reason to dismiss for lack of a speedy trial. However, he needed to check the file. He believed there was a conflict between defendant's right to a speedy trial and his right to prepared counsel. Ahlemeyer was willing to handle the cause on the next calendar. Therefore, to give defendants the best of both rights, jury selection would begin the following day and the evidentiary portion of the trial the following week.
Mason then stated defendant and Nolan wished to have the entire caused dismissed or have the entire trial start the next day. The court stated he understood defendant's and ...