Appeal from the Circuit Court of Cumberland County, the Hon. Paul C. Komada, Judge, presiding.
The Honorable Justice Heiple delivered the opinion of the court: Justice Harrison took no part in the consideration or decision of this case.
The opinion of the court was delivered by: Heiple
JUSTICE HEIPLE delivered the opinion of the court:
This court remanded this cause to the circuit court of Cumberland County for a new hearing on defendant's motion to withdraw his guilty plea after determining that defendant's attorney had not complied with the certification requirements of Rule 604(d) (134 Ill. 2d R. 604(d)). ( People v. Janes (1994), 158 Ill. 2d 27, 196 Ill. Dec. 625, 630 N.E.2d 790 (hereinafter Janes I).) Jurisdiction over the direct appeal in this capital case was retained pending the outcome of the remand proceedings. ( Janes I, 158 Ill. 2d at 36.) *fn1 On remand the trial court again denied the motion to withdraw the guilty plea and refused to consider defendant's other arguments, which it ruled were beyond the scope of the remand. Defendant now appeals directly to this court, raising the following issues: (1) that he is entitled to a new hearing to withdraw his guilty plea because the attorney who was representing him on remand was laboring under a conflict of interest; (2) that his counsel was ineffective in failing to correct the trial court's mistaken belief that defendant hadknowingly allowed the State's plea offer to expire; and (3) that the trial court erroneously refused to consider defendant's motion to reconsider his sentence. We affirm.
On October 11, 1991, defendant, Ronald J. Janes, pled guilty to murdering his mother, father and grandmother. Defendant then waived his right to have a jury determine his sentence and the trial court found the defendant eligible for death. (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(b)(3).) After hearing the aggravating and mitigating evidence, the trial court sentenced defendant to death. (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(h).) Immediately following the imposition of his sentence on January 29, 1994, defendant filed a motion to withdraw his guilty plea and a motion for resentencing. Defendant's attorney, L. Stanton Dotson, informed the court that although he felt his obligations as court-appointed attorney had terminated, he would nonetheless argue the motions. The court denied the motions that same day.
Defendant then appealed directly to this court claiming, inter alia, that he was entitled to a new hearing to withdraw his guilty plea because his trial counsel, Dotson, failed to comply with Supreme Court Rule 604(d)'s requirement that he examine the trial court file and report of proceedings of the plea of guilty and make any amendmentsto the motion necessary for adequate presentation of any defects in those proceedings. 145 Ill. 2d R. 604(d).
The State countered that there had been substantial compliance with Rule 604(d) and that this was sufficient. In support of its argument on appeal, the State submitted an affidavit from defendant's attorney, Dotson, wherein he swore that he "examined a copy of the transcript and persists in the opinion that any amendments to the motion necessary for adequate presentation of any defects in the guilty plea proceedings were made." This court nevertheless ruled that strict compliance with Rule 604(d)'s certification requirements was necessary and remanded the cause to the trial court for a new hearing on the motion to withdraw the guilty plea.
On remand, the trial court again appointed Dotson to represent defendant in his motions on remand. At the close of the hearing, the trial court denied defendant's motion to withdraw his guilty plea and refused to entertain defendant's motion to reconsider the sentence, ruling that the latter was beyond the scope of the remand.
Defendant argues that he is entitled to yet another hearing to withdraw his guilty plea because attorney Dotson was laboring under a conflict of interest when he represented him at the second hearing. We disagree.
In support of this argument, defendant first contends there was a conflict of interest because Dotson improperly attempted to argue his own ineffective assistance of counsel on remand. ( People v. Flores (1992), 153 Ill. 2d 264, 180 Ill. Dec. 1, 606 N.E.2d 1078 (it contravenes human nature to expect counsel to adequately argue counsel's own ineffectiveness).) Specifically, defendant refers to the arguments in his motion to withdraw his guilty plea (1) that he had valid defenses of self-defense and temporary insanity to the murder charges, and (2) that he believed that if he pled guilty he would not receive the death penalty. Defendant asserts that these arguments implicitly allege ineffective assistance of counsel because, to be true, Dotson must have ineffectively chosen not to raise the claimed defenses and, in addition, misled defendant to believe that he would not be sentenced to death were he to plead guilty.
We initially observe that defendant's conclusion that attorney Dotson rendered ineffective assistance of counsel does not necessarily follow from his claims of valid defenses and from his belief that he would not be sentenced to death. We do not decide this question on the merits, however, because defendant has waived the underlying conflict of interest claims as a result of his failure to raise them at his first opportunity before this court on direct appeal. Cf. People v. Stewart (1988), 123 Ill. 2d 368, 372, 123 Ill. Dec. 927, 528 N.E.2d 631 (finding waiver in post-conviction proceeding where issue could have been presented on direct appeal but was not).
Both the arguments of valid defenses and belief that he would not be sentenced to death in defendant's second motion to withdraw the guilty plea were also made by defendant in his first motion to withdraw his guilty plea. Insofar as attorney Dotson represented defendant at both hearings on these motions, defendant's appellate counsel in his first appeal could have made the same conflict of interest arguments that defendant's second appellate counsel now makes to this court. Because these arguments were not made at the first possible opportunity before this court, these arguments are waived under the principles of waiver and res judicata. Beyond the ...