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People v. Friend

July 08, 2003

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DAVID FRIEND, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 98--CF--415 Honorable Michael J. Burke, Judge, Presiding.

The opinion of the court was delivered by: Justice Byrne

PUBLISHED

Defendant, David Friend, pleaded guilty to possessing a controlled substance with intent to deliver (720 ILCS 570/401(a)(1)(A) (West 1998)). The trial court denied defendant's motion to withdraw the plea and defendant appeals, arguing that his attorney labored under a conflict of interest during the postplea proceedings because defendant had questioned his competency.

Defendant was charged with possession of a controlled substance with intent to deliver and possession of cannabis. During pretrial proceedings, he was represented by three different attorneys. While represented by the last of these, Manos Kavvadias, defendant pleaded guilty to possession with intent to deliver. There was no agreement about a sentence. We reverse and remand.

Before sentencing, Kavvadias filed a motion to withdraw defendant's guilty plea. The motion alleged, inter alia, that defendant had been "forced into a plea of guilty." At a hearing, Kavvadias explained that he filed the motion based on defendant's statements in the presentence report. There, defendant stated that he had been "blackmailed" into pleading guilty and questioned the quality of Kavvadias's representation.

Kavvadias referred the court to a section of the presentence report entitled "Defendant's Attitude Toward Offense," containing defendant's verbatim statements, and invited the court to question defendant. The court replied that the motion lacked any specific allegations to show that the plea was coerced. The court denied the motion, finding no reason to believe that defendant "was operating under any type of misapprehension of law or fact." The court focused on the last paragraph of defendant's statement in which he said, "I plead guilty hoping to get lienecy [sic]." The court observed that not getting a lenient sentence was not a sufficient reason to withdraw a plea.

Two weeks later, the court sentenced defendant to 10 years' imprisonment. Defendant then renewed his motion to withdraw the plea. The court again denied the motion and defendant timely appeals.

Defendant contends that he should receive a new hearing on his motion because Kavvadias should have withdrawn as his counsel when he realized that defendant was criticizing his performance. Defendant cites People v. Willis, 134 Ill. App. 3d 123, 131 (1985), People v. Fields, 88 Ill. App. 3d 821, 823 (1980), and People v. Norris, 46 Ill. App. 3d 536, 541 (1977). Those cases held that an attorney should move to withdraw when the client criticizes his or her representation.

In Fields, the defendant complained after his bench trial that his lawyer failed to call certain witnesses, but the same attorney continued to represent him during posttrial proceedings. Recognizing that the attorney labored under a conflict of interest, the court ordered a new hearing on the defendant's posttrial motion. Fields, 88 Ill. App. 3d at 823. In Willis, this court in remanding the cause for a new hearing observed that an attorney forced to argue his own ineffectiveness "must be seen as laboring under divided loyalties." Willis, 134 Ill. App. 3d at 131.

This case is similar to Willis, Fields, and Norris in that Kavvadias presented a motion to withdraw the guilty plea that incorporated defendant's allegations of Kavvadias' ineffective representation. Kavvadias should have moved to withdraw when he realized that defendant was questioning his professional judgment.

The State does not attempt to distinguish these cases, but responds with a three-pronged attack. First, the State argues that defendant's guilty plea waived his contentions. Second, it contends that, regardless of Kavvadias's conflict of interest, the trial court independently evaluated defendant's allegations of ineffective representation. Third, the State maintains that the court properly found those allegations to be without merit.

We can briefly dispose of the State's first argument. According to the State, a guilty plea waives any claim of a deprivation of constitutional rights that occurred prior to the guilty plea. See Tollett v. Henderson, 411 U.S. 258, 267, 36 L. Ed. 2d 235, 243, 93 S. Ct. 1602, 1608 (1973). This includes allegations that defense counsel labored under a conflict of interest. People v. Canales, 86 Ill. App. 3d 738, 741-42 (1980). These cases do not apply here for the simple reason that the claimed conflict of interest arose after defendant entered his plea. Defendant claims that Kavvadias had a conflict of interest in arguing the postplea motion, and in this appeal merely seeks a new hearing on that motion. Defendant's plea did not waive his right to assert a constitutional deprivation that occurred after the plea was entered.

Next, the State asserts that the trial court independently evaluated defendant's allegations, thus rendering moot any conflict of interest of defense counsel. The State cites cases holding that where a defendant raises pro se allegations of ineffective assistance, the court should conduct a preliminary investigation to determine whether the charges have arguable merit. If the court finds that the claims lack merit or pertain only to trial strategy, the court may deny the motion without appointing new counsel. See People v. Cabrales, 325 Ill. App. 3d 1, 5 (2001). The State contends that this is essentially what happened here. We disagree.

Initially, the State questions whether these cases apply because it was Kavvadias, rather than defendant, who brought defendant's allegations to the court's attention. We find this a distinction without a difference. It is clear that Kavvadias was little more than a conduit to convey defendant's statements to the trial court; he neither physically incorporated the statements into his motion nor argued their merits ...


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