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05/05/94 PEOPLE STATE ILLINOIS v. MARK A. MUNSON

May 5, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MARK A. MUNSON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Bureau County, Illinois, Nos. 93-CF-19 and 93-TR-955. Honorable C. Howard Wampler Judge, Presiding

Present - Honorable Kent Slater, Presiding Justice, Honorable Tom M. Lytton, Justice, Honorable Tobias Barry, Justice

The opinion of the court was delivered by: Slater

PRESIDING JUSTICE SLATER delivered the opinion of the court:

Defendant Mark A. Munson pleaded guilty to driving while his license was revoked (625 ILCS 5/6-303(d) (West 1992)), aggravated battery (720 ILCS 5/12-4(b)(6) (West 1992)) and driving under the influence of alcohol (625 ILCS 5/11-501 (West 1992)). Defendant was sentenced to concurrent terms of imprisonment of five years for driving with license revoked and aggravated battery and six months for driving under the influence. Defendant now appeals from the denial of his motion to withdraw his pleas and reduce his sentence, raising a single issue: Whether a per se conflict of interest exists when an assistant public defender is appointed to represent a defendant at post-plea proceedings in which the defendant asserts that the assistant public defender's superior coerced his guilty plea and rendered ineffective assistance of counsel.

On March 9, 1993, the defendant was charged by indictment with one count of felony driving while license revoked and one count of aggravated battery. Thereafter the defendant appeared in court with his appointed counsel, Bureau County Public Defender David Rumley, and tendered a negotiated plea of guilty to the charges. At the outset of the hearing, the prosecutor informed the court that the parties had agreed that the defendant would plead guilty to the driving while revoked count and the aggravated battery count and would be sentenced on both counts to concurrent terms of imprisonment of five years. The prosecutor also stated that the parties had agreed that the defendant would plead guilty to a charge of driving under the influence and be sentenced to a concurrent six-month term. Defense counsel indicated that he had discussed the plea negotiations with the defendant and that the defendant agreed with the negotiations and the recommended sentence. The court then asked the defendant if he was satisfied with the agreement and was in accord with it. When the defendant answered "No" to this query, the court stated that the hearing would proceed no further and that the defendant could have a trial.

At this juncture, defense counsel asked the court for a moment to talk to the defendant. Thereafter, counsel told the court that the defendant understood the plea agreement and was willing to go forward. The court then again asked the defendant if he was satisfied with the agreement, and the defendant answered affirmatively. The courtnext determined that the defendant understood the charges against him and explained the minimum and maximum sentences he faced, including the extended-term penalties he could be subject to because of his prior convictions.

Following admonishments pursuant to Supreme Court Rule 402 (137 Ill. 2d R.402), the defendant indicated that he was satisfied with his attorney, Public Defender Rumley, and he had no complaints about his representation. The State then presented the factual basis in support of the plea. Afterwards, the defendant indicated that he had not been threatened, intimidated, or coerced in any way to enter the plea. After accepting defendant's plea the court sentenced the defendant to concurrent terms of five years for driving while license revoked, five years for aggravated battery, and six months for driving under the influence.

On May 24, 1993, the defendant filed a pro se motion to withdraw his guilty plea. The motion alleged that the defendant's plea was involuntary because his attorney coerced him into taking the plea agreement, and because he was under the influence of drugs and suffering from a concussion at the time of the plea. In addition to the motion to withdraw, the defendant also filed a pro se motion to reduce sentence and a pro se motion for appointment of a Bar Association attorney. In support of his request for a Bar Association attorney, the defendant contended that he was entitled to counsel other than the public defender because he was coerced into pleading guilty by the Bureau County public defender and he was alleging the ineffectiveness of the public defender in his motions to withdraw guilty plea and to reduce sentence. On May 25, 1993, the trial court appointed Assistant Public Defender Michael Henneberry to represent the defendant with respect to his motions to withdraw guilty pleas and to reduce sentence.

On June 10, 1993, the defendant appeared in court with Henneberry, who informed the court that the defendant did not desire his services because Henneberry was in the same office as Public Defender Rumley, whom the defendant was attacking in his motions. The defendant stated that a conflict of interest existed because he was not properly represented by Rumley. The court denied the defendant's request for another attorney, stating that the public defender's office was structured in such a way as to avoid conflicts of interest. The prosecutor added that Public Defender Rumley and attorney Henneberry, who was one of two assistant public defenders, were employed part-time and each had separate, private law offices.

On July 28, 1993, the defendant filed a pro se motion for reconsideration of appointment of a Bar Association attorney, inwhich he alleged that he had a right to counsel free from a conflict of interest. At a hearing on the same date, the trial court noted that the public defender's office was set up "so that the attorneys are separate and apart and are not in conflict of interest." The court denied the defendant's motion.

On September 8, 1993, a full hearing was conducted on the defendant's motions to withdraw guilty plea and reduce sentence. The defendant testified that, at the time he pleaded guilty, he was taking numerous medications, including soma, codeine, valium, and halcion, for his nerves and for a concussion he had suffered. He testified that the medications affected his ability to make a knowing waiver of his rights. He also testified that, while he was under the influence of the medication, he was pressured into pleading guilty by Public Defender Rumley and his assistant, Kathy Herbolsheimer, who came to see him at the county jail the day after he was arrested and told him he would get ten years in prison if he did not take the State's offer of five years. The defendant further testified that the medication he had been taking was prescribed by a doctor at Perry Memorial Hospital and by a Dr. Foresman at the county jail. The defendant was the only witness called to testify at the hearing.

After listening to the arguments of respective counsel, but before ruling on the defendant's motion, the trial court questioned why the doctor from the county jail had not been called to testify. The court then went on to deny the defendant's motions, finding that the defendant's pleas were voluntary and the sentences were proper.

On appeal, defendant contends that the trial court's refusal to appoint independent counsel resulted in a denial of his right to effective assistance of counsel because a per se conflict of interest arose when Assistant Public Defender Henneberry was put in the position of challenging the effectiveness of his superior, Public Defender Rumley. Defendant maintains that the case at bar is distinguishable from People v. Banks (1987), 121 Ill. 2d 36, 520 N.E.2d 617, 117 Ill. Dec. 266, in which the supreme court held that no per se conflict of interest exists when an assistant public defender is assigned to challenge the effectiveness of another assistant from the same office. Here, argues defendant, the assistant public defender was required to challenge the competence of the person who "presumably, hired him, assigned his cases, evaluates his work and controls his monetary and professional advancement in the office."

We begin our analysis by examining the decisions of our supreme court in Banks and People v. Spreitzer (1988), 123 Ill. 2d 1, 525 N.E.2d 30, 121 Ill. Dec. 224. In Banks, the court overruled the per se rule established in People v. Smith (1967), 37 Ill. 2d 622, 230 N.E.2d 169, and People v. Terry (1970), 46 Ill. 2d 75, 262 N.E.2d 923, and held that where an assistant public defender asserts that another assistant from the same office has rendered ineffective assistance, a case-by-case inquiry should be conducted to determine whether any circumstances peculiar to the case indicate the existence of an actual conflict of interest. The court rejected a per se rule because it "would require us ...


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