The opinion of the court was delivered by: Justice Fitzgerald
Docket No. 91241-Agenda 16-November 2001.
Defendant, Jason Seth Miller, pleaded guilty to the charge of aggravated criminal sexual abuse. 720 ILCS 5/12-16(d) (West 1996). He was sentenced to two years' probation on June 6, 1997. Defendant's probation was revoked on March 29, 1999, after he admitted allegations contained in the State's petition to revoke his probation; the trial court resentenced him to an additional two years' probation. On September 7, 1999, the State filed a second petition to revoke defendant's probation. The petition alleged: (1) defendant failed to keep appointments with the probation office; (2) defendant failed to obtain an alcohol evaluation; and (3) defendant failed to complete a court-ordered treatment program.
At the probation revocation hearing, over the objection of defendant's attorney the State called defendant as an adverse witness. The State called no other witnesses. Following defendant's testimony, the trial court revoked the order of probation and sentenced defendant to a term of five years' imprisonment. The trial court denied defendant's motion to reconsider the sentence. The appellate court affirmed the judgment of the trial court. No. 4-00-0020 (unpublished order under Supreme Court Rule 23). We granted defendant's petition for leave to appeal (see 177 Ill. 2d R. 315).
On appeal to this court, defendant argues that the State violated his right against self-incrimination, pursuant to article I, section 10, of the Illinois Constitution (Ill. Const. 1970, art. I, §10), by calling him as an adverse witness to testify against himself. Further, defendant argues that the prosecutor at defendant's motion to reconsider his sentence labored under a per se conflict of interest.
We reject defendant's first claim of error for the reasons set forth in People v. Lindsey, No. 91381 (May 23, 2002). It is clear from the record that defendant did not face a realistic threat that his answers at the probation revocation hearing would incriminate him in any further proceedings. Therefore, defendant's testimony at the probation revocation hearing did not violate defendant's privilege against self incrimination, pursuant to article I, section 10.
Defendant next argues that the prosecutor, at defendant's motion to reconsider the sentence following the probation revocation hearing, labored under a per se conflict of interest. We review this issue de novo. People v. Carlson, 185 Ill. 2d 546, 551 (1999).
In the present case, Gayle Garner represented defendant as an assistant public defender at the beginning of the case. She represented defendant at the waiver of the preliminary hearing. Further, she filed a discovery motion, a discovery answer, and a bond-reduction motion on defendant's behalf. Throughout the remaining proceedings, defendant was represented by a different assistant public defender. Pursuant to a plea agreement, defendant pleaded guilty and was sentenced to probation. The probation was later revoked and defendant was sentenced to a term of five years' imprisonment. At the hearing on the motion to reconsider the sentence, Garner appeared as an assistant State's Attorney and argued that defendant willfully disregarded the trial court's order and that the sentence was proper. The trial court denied defendant's motion.
An attorney cannot represent conflicting interests or undertake to discharge inconsistent duties. People v. Lawson, 163 Ill. 2d 187, 209 (1994); People v. Spreitzer, 123 Ill. 2d 1, 13-17 (1988); People v. Washington, 101 Ill. 2d 104, 110 (1984); People v. Kester, 66 Ill. 2d 162, 166-67 (1977); People v. Stoval, 40 Ill. 2d 109, 112-13 (1968). A defendant who fails to raise a conflict of interest issue in the trial court cannot succeed on appeal unless he demonstrates that he was actually prejudiced. Spreitzer, 123 Ill. 2d at 17. An exception exists in the case of a per se conflict of interest. When a per se conflict exists, prejudice is presumed; defendant is not required to demonstrate that the conflict contributed to the conviction. Lawson, 163 Ill. 2d at 210, 218.
A per se conflict of interest arises where "certain facts about the defense counsel's status, by themselves, *** engender a disabling conflict." (Emphasis added.) Lawson, 163 Ill. 2d at 211; Stoval, 40 Ill. 2d at 113 ("the mere existence of the conflict is sufficient to constitute a violation"). Often this conflict is the attorney's previous or contemporaneous association with either the victim, the prosecution, or an entity assisting the prosecution. Lawson, 163 Ill. 2d at 211. For example, in Kester, 66 Ill. 2d at 167, the defendant was represented by appointed defense counsel who previously appeared in the same case as the prosecuting assistant State's Attorney. We held that a potential conflict was present and applied the per se conflict of interest rule, holding that it was unnecessary for the defendant to show actual prejudice. Kester, 66 Ill. 2d at 167 (there was the "possibility that the attorney might be subject to subtle influences which could be viewed as adversely affecting his ability to defend his client in an independent and vigorous manner"); see also Lawson, 163 Ill. 2d at 218 (holding that defendant was entitled to reversal where defendant's court-appointed defense counsel also previously served in the same criminal proceeding as the assistant State's Attorney); Stoval, 40 Ill. 2d at 113 (despite any apparent lack of diligence on the part of the defense counsel, sound policy disfavored the representation because the defendant's second court-appointed counsel previously represented the store that the defendant allegedly burglarized).
In the instant matter, the court-appointed attorney who represented defendant as defense counsel later acted as the prosecutor in the same criminal case. We find that such representation creates a per se conflict of interest. We realize that due to the high volume of cases circulating through both the public defender's office and the State's Attorney's office, Garner may not have realized that she had previously represented defendant. Further, it is apparent that neither Garner nor her supervisors recognized the possible conflict. Nonetheless, it is clear from the record that Garner was personally involved as both defense counsel and as the prosecutor. As defense counsel at the preliminary hearing, she announced defendant's intention to assert a variety of defenses. She further conferred with defendant, filed a motion for reduction of bail and filed discovery on behalf of defendant. As the prosecutor, however, she argued that defendant had willfully disregarded the trial court's probation order. Even though her initial role as the assistant public defender involved routine motions and her role as the prosecutor occurred at the tail end of the case, her involvement, nevertheless, spanned the entire criminal proceeding. We find that under the circumstances here, a conflict of interest existed and that fairness dictates application of the per se conflict of interest rule. See Lawson, 163 Ill. 2d at 218; Stoval, 40 Ill. 2d at 113; Kester, 66 Ill. 2d at 167-68.
For the foregoing reasons, we hold that defendant's testimony at the probation revocation proceeding did not implicate the privilege against self-incrimination contained in article I, section 10, of the Illinois Constitution. However, because a per se conflict of interest exists, we remand the matter for rehearing on defendant's motion to reconsider the sentence. Accordingly, we affirm in part and reverse in part the judgments of the appellate and circuit courts and remand this matter to the circuit court for rehearing on defendant's motion to reconsider the sentence.
Appellate court judgment affirmed in part and reversed in part; circuit court judgment affirmed in part and ...