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02/11/98 PEOPLE STATE ILLINOIS v. ROBERT SANDERS

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ROBERT SANDERS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois No. 93--CF--688 Honorable Daniel W. Gould, judge Presiding

The opinion of the court was delivered by: Justice Lytton

Defendant Robert Sanders was convicted of armed violence, unlawful possession of a controlled substance (cocaine), unlawful possession of cannabis, unlawful use of a weapon and unlawful possession of a firearm without a firearm owner's identification card (720 ILCS 5/33A--2, 570/402(c), 550/4(a) and 5/24--1(a)(4), 430 ILCS 65/2 (West 1992)). He was subsequently sentenced to six years' imprisonment. Defendant appeals, citing a conflict of interest arose when the initial attorney assigned to his case, a public defender, was later appointed State's Attorney. We affirm.

FACTS

Defendant was arrested on October 6, 1993; he first appeared in court pro se on October 7. The court set bail, appointed the public defender to represent defendant and set the cause for arraignment. On October 12, Public Defender William O. Schmidt assigned the case to his assistant, Michael J. Kick. At the arraignment on October 26, a private attorney, Sherri Carr, entered her appearance. Kick did not appear, and the office of the public defender was discharged. The State served its first discovery on attorney Carr.

On March 17, 1994, another private attorney, Leonard Sacks, substituted for Carr. Sacks continued to represent defendant throughout the remainder of the trial court proceedings. Defendant was convicted on all counts on January 5, 1996.

In the meantime, on September 1, 1995, Kick became Kankakee County State's Attorney. As of October 2, 1995, notices and pleadings from the prosecutor's office had Kick's name listed as State's Attorney. Nevertheless, the record shows that Assistant State's Attorney John Kezdy was the sole member of the State's Attorney's office prosecuting the case after June 20, 1995.

DISCUSSION AND ANALYSIS

On appeal, defendant argues that Kick's roles as State's Attorney and defense counsel in the same case created a per se conflict of interest and rendered defendant's trial unfair. We disagree.

1. Conflicts of Interest

A brief overview of applicable law is necessary to our analysis. In People v. Spreitzer, 123 Ill. 2d 1, 525 N.E.2d 30 (1988), our supreme court explained the differences between per se conflicts of interest and actual conflicts.

a. Per Se Conflicts

A per se conflict arises when defense counsel has some tie to a person or entity which would benefit from a verdict unfavorable to the defendant. Spreitzer, 123 Ill. 2d 1, 525 N.E.2d 30. Our supreme court has determined that a conflict was per se disabling when counsel has had a prior or contemporaneous association with the prosecution or the victim. See, e.g., People v. Washington, 101 Ill. 2d 104, 461 N.E.2d 393 (1984) (defense counsel simultaneously represented municipality where defendant was prosecuted); People v. Fife, 76 Ill. 2d 418, 392 N.E.2d 1345 (1979) (defense counsel simultaneously served as part-time assistant Attorney General representing State); People v. Coslet, 67 Ill. 2d 127, 364 N.E.2d 67 (1977) (defense counsel simultaneously represented administrator of victim's estate); People v. Kester, 66 Ill. 2d 162, 361 N.E.2d 569 (1977) (defense counsel formerly appeared as assistant State's Attorney in defendant's case); People v. Stoval, 40 Ill. 2d 109, 239 N.E.2d 441 (1968) (defense counsel's firm simultaneously represented defendant and burglary victim).

When a per se conflict exists, a defendant may expressly waive his attorney's conflict. However, he is not deemed to have waived the issue by his silence at trial. See Fife, 76 Ill. 2d 418, 392 N.E.2d 1345. Prejudice is presumed, and the defendant need not show that his attorney's performance was in any way affected by the conflict in ...


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