Appeal from the Circuit Court of Cook County No. 96 CR 14738 Honorable Stuart Palmer, Judge Presiding.
The opinion of the court was delivered by: Justice Cahill
Defendant appeals the denial of his posttrial motion for a new trial. He argues that the trial court ignored an oral motion made by defendant claiming ineffective assistance of trial counsel. No issues are raised attacking the guilty verdict. We remand with directions to consider the motion. The court is also directed to consider a record from the Attorney Registration and Disciplinary Commission (ARDC) documenting disciplinary action taken against defendant's trial attorney for conduct, some of which was contemporaneous with the attorney's representation of defendant.
Defendant was charged in June 1996 with first degree murder, attempted first degree murder and alternative counts of aggravated discharge of a firearm. Defendant appeared in court on June 25, 1996, and entered a not-guilty plea. Defendant was represented by the public defender on that date. A March 10, 1997, trial date was set.
Defendant appeared in court on March 10 with a privately retained attorney. The trial was continued to April 21, 1997. The record shows the case was next called on June 2, 1997. On that date, the State told the court that defendant's private attorney had been suspended from practice by the ARDC. The court struck defendant's attorney's earlier filed appearance and appointed the public defender. The court noted for the record that the ARDC had suspended defendant's attorney from practice and recommended that the attorney be disbarred. The case was continued to June 24, 1997.
The public defender appeared for defendant on August 5, 1997, and asked that defendant's fitness to stand trial be determined. The court ordered that defendant be examined and continued the case to September 15, 1997.
The next entry in the record shows that the case was called for trial on July 28, 1998. The public defender appeared for defendant. Defendant waived his right to a trial by jury. The State then made an opening statement. Before the public defender's opening statement, the court noted that the charges against defendant subjected him to consecutive sentences. The court asked defendant if he understood the scope of the potential penalties he faced and further questioned whether defendant still intended to waive his right to a jury. Defendant said that he wanted a jury after a brief exchange with the court. The court then struck the jury waiver and the case was set for trial on August 24, 1998.
On August 24, a private attorney appeared for defendant. The attorney asked for a 60-day continuance to prepare for trial. The State agreed to the continuance so long as the case would be tried within 60 days. The court said it was reluctant to grant the continuance because of the age of the case and noted that defendant had been in custody since 1996:
"[The public defender] is ready and ready in a timely manner. So while I am hesitant to continue this case, [defendant] has had to go through the experience of having a lawyer that was disbarred, and his case was delayed for that reason.
I want him to be tried [with] an attorney of his choice. I will allow [the attorney] to file his appearance with the understanding I expect this case to go to trial in about 60 days. So the public defender is given leave to withdraw."
The case was then continued to September 14, 1998. The court continued the case to September 16 when defendant's attorney was not able to appear on September 14. Defendant's attorney appeared on September 16 and asked for a two-week status date. The case was then continued by agreement to October 2, 1998.
The record shows that defendant's attorney failed to appear on October 2, 1998. The court noted for the record that there had been some discussion that defendant's attorney was ill and was being hospitalized. The case was continued for one week to October 9, to "track [defendant's attorney] down."
Defendant's attorney next appeared on October 30. The case was set for trial for December 15 and 16. The case was again continued to February 1, 1999, due to a conflict in the trial court's schedule.
On February 1, 1999, the court learned that defendant's attorney had been arrested the day before on a charge of possession of controlled substances. The court noted that defendant's attorney also had a contempt matter pending before another judge. Defendant's attorney explained that, because of his arrest, he was not prepared to proceed to trial on defendant's case:
"Had I not been picked up yesterday, I had intended on answering ready. I got picked up yesterday afternoon. Under the circumstances, this is preventing me from being ready today."
Defendant's attorney then admitted that he was in the court building to appear on his criminal charge and that he could not advise the court when he would be able to proceed on defendant's case until after his bond hearing. The court then addressed defendant:
"THE COURT: [Defendant], do you understand I want to make sure you understand what I have been talking about to [your attorney]. Apparently [your attorney] was arrested and charged with a criminal offense last night. He informed me just now it's a possession of controlled substance matter. Do you understand that?
THE COURT: All right. He is not in a position to try your case today because of the fact that I assume he stayed in the jail last night and doesn't have his files with him and has some other court appearances he has to make with regard to himself. Do you have any thoughts about that?
DEFENDANT: I have a couple of thoughts, you know. First you know, when I had my first lawyer that same thing happened with my first lawyer *** I lost that lawyer.
You know, my family, you know, man, we ain't got money like that to be paying for lawyers, you know. I am trying to work on getting my money back from [my first lawyer], which I have not gotten.
THE COURT: Well, [your attorney] still represents you unless you don't want him to. [Your attorney] has indicated to me that he intends to have a conversation with you either today or tomorrow when he has the opportunity to get released from custody. You were just informed of this so I don't expect you to make a snap decision. What I am going to do is I am going to have to have a further conservation with you, [defendant], to determine if you still want [your attorney] to represent you.
Understanding not just the fact that he was arrested because he certainly has not been convicted of anything with regard to that, but the fact that he is under a charge here in Cook County, if that case remains pending, he is in a situation where he is in a position where he has to defend himself with regard to criminal charges and that may take away from his ability to give adequate attention to your case. It also may raise some conflictual issues in terms of his relationship with the [S]tate's [A]attorney's ...