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02/01/95 PEOPLE STATE ILLINOIS v. ELIEZER MASSA

February 1, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ELIEZER MASSA, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Michael P. Toomin, Judge Presiding.

Rehearing Denied March 16, 1995.

The Honorable Justice Cerda delivered the opinion of the court: Greiman, P.j., And Rizzi, J., Concur.

The opinion of the court was delivered by: Cerda

JUSTICE CERDA delivered the opinion of the court:

Defendant, Eliezer Massa, was indicted on three counts of first degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9-1A(1) (now codified as 720 ILCS 5/9-lA(1) (West 1992))), two counts of armed robbery (Ill. Rev. Stat. 1991, ch. 38, par. 18-2-A (now codified as 720 ILCS 5/18-2-A (West 1992))), and two counts of aggravated unlawful restraint (Ill. Rev. Stat. 1991, ch. 38, par. 10-3.1 (now codified as 720 ILCS 5/10-3.1 (West 1992))). In addition, he was indicted for a separate residential burglary (Ill. Rev. Stat. 1991, ch. 38, par. 12-11 (now codified as 720 ILCS 5/12-11 (West))) and four separate armed robberies (Ill. Rev. Stat. 1991, ch. 38, par. 18-1, 18-2 (now codified as 720 ILCS 5/18-1, 18-2 (West 1992))).

After defendant pleaded guilty to murder, residential burglary, robbery, and four armed robberies, the trial court sentenced him to 70 years' imprisonment for murder on the basis that his participation had been exceptionally brutal and heinous, and concurrent terms of 30 years' imprisonment for the four armed robberies, 15 years' imprisonment for residential burglary, and seven years' imprisonment for robbery.

Subsequently, the trial court denied defendant's motion to withdraw the guilty pleas and vacate the judgments. On appeal, defendant asserts that (1) he was denied his right to effective assistance of counsel because his attorney had a per se conflict of interest in that defendant had filed a lawsuit against him in Federal court; (2) he was denied his right to effective assistance of counsel because thetrial court did not alleviate the conflict after being informed of it before trial; and (3) he was denied his right to effective assistance of counsel because his attorney did not review the report of proceedings of the guilty plea prior to the motion to withdraw the guilty plea. For the reasons that follow, we affirm.

After defendant was declared fit to stand trial, Assistant public defender James Mullinex informed the court that he wanted to obtain defendant's hospital records and a complete file from the Psychiatric Institute. Defense counsel also informed the trial court that defendant was disappointed with his representation. Through a Spanish-language interpreter, the trial court asked defendant about his concerns regarding his representation. Defendant responded, "No, that's okay. I want you to be my attorney."

On May 9, 1991, attorney Mullinex informed the trial court that defendant was requesting a new attorney and had contacted a private attorney. The trial court granted defendant leave to file a motion for the appointment of new counsel, but deferred his ruling until defense counsel had the opportunity to confer with defendant.

Defendant's jury trial was set for July 29, 1991. On that date with an interpreter translating for defendant, attorney Mullinex informed the trial court that defendant had filed a lawsuit against him in Federal court. Nevertheless, defendant wanted to plead guilty and accept the State's new offer. Even though attorney Mullinex informed defendant that there would be a conflict of interest for him to continue to represent him, defendant was willing to plead guilty with attorney Mullinex representing him.

With an interpreter translating, the following discussion occurred:

THE COURT: Well, Mr. Massa, what do you have to say about that [sic] you have heard what Mr. Mullinex has said? Have you filed a lawsuit against him down in the federal court?

MR. MASSA: Tell him that I want to take the 70 years) but on the condition that Carlo Rodriguez has nothing to do with this case.

THE COURT: I understand that, but what I'd like to know from Mr. Massa is, what is the basis of his complaint against Mr. Mullinex that caused him to file a federal lawsuit against him?

MR. MASSA: I thought that he was not doing anything for me.

THE COURT: Is that because Mr. Rodriguez was involved in these discussions?

MR. MASSA: No, he was not involved in it.

THE COURT: Was his disagreement with Mr. Mullinex based upon his belief that he thought Mr. Mul1inex wanted him to testify against Mr. Rodriguez?

MR. MASSA: I don't understand.

THE COURT: Earlier in the case, Mr. Massa was interviewed by the state's attorney with the idea that he might be a witness against some of his co-offenders. Do you recall that?

MR. MASSA: Yes, I remember.

THE COURT: The fact that it was possible that he might be a witness against his co-defendants, is that the basis of the ...


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