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People v. Ortega

April 01, 2004



Docket No. 93834-Agenda 3-September 2003.

JUSTICE GARMAN delivered the opinion of the court:

In 1996 defendants were charged by indictment with delivery of 999.38 grams of cocaine in violation of section 401 of the Illinois Controlled Substances Act (720 ILCS 570/401 (West 2000)). In 1999, prior to trial, the State successfully moved to disqualify defendants' counsel, attorney Robert Novelle, on conflict of interest grounds. Defendants petitioned for leave to appeal the disqualification order pursuant to Supreme Court Rule 306(a)(7) (166 Ill. 2d R. 306(a)(7)). The appellate court dismissed the petition, and defendants petitioned for leave to appeal to this court. We denied the petition but entered a supervisory order instructing the appellate court to hear the appeal. The appellate court reversed the disqualification order. 329 Ill. App. 3d 114. The State then filed a petition for leave to appeal pursuant to Supreme Court Rule 315 (177 Ill. 2d R. 315), which we allowed. We are now asked to articulate the standard of review and the proper criteria with regard to a trial court's decision to disqualify a criminal defendant's counsel of choice prior to trial.


Defendants Eugenio Natal and Alvaro Ortega were charged in connection with the sale of nearly one kilogram of cocaine to Special Agent Dean Endre of the Metropolitan Enforcement Group. The sale was arranged by Juan Montez, a confidential informant working for Agent Endre. Natal, Ortega, Montez and Agent Endre were present during the sale, which occurred on August 1, 1996. On August 15, 1996, attorney Robert Novelle filed a motion on behalf of Natal, and on October 11, 1996, he appeared on behalf of Ortega. Robert Novelle continues to represent both defendants.

Robert Novelle's brother and law partner, Donald Novelle, represented Montez from the end of May 1996, until at least February 27, 1997, in connection with certain criminal charges. Donald's representation of Montez directly involved the drug sale for which defendants are charged. Montez claimed that Agent Endre promised that the criminal charges pending against him would be dismissed in exchange for arranging the sale. When the charges were not dismissed, Donald tried to enforce the alleged promise on behalf of his client. He advised Montez to refuse to answer questions about the sale before a grand jury on September 6, 1996. He then filed a motion to dismiss the charges. Donald litigated the motion to dismiss in a hearing before Judge DeBoni on January 24, 1997. He called Montez as a witness, and Montez testified about the events leading up to the sale and about the sale itself. Judge DeBoni found that Agent Endre did not make the alleged promises and denied the motion to dismiss. By February 27, 1997, Montez had pled guilty and had been sentenced to probation on some of the charges, while the others had been dismissed.

In February of 1999, shortly before defendants Natal and Ortega were to go to trial, the State moved to disqualify Robert Novelle based on a conflict of interest arising out of Donald Novelle's representation of Montez. The trial court held hearings on the motion to disqualify Robert, during which Donald testified that he knew prior to August 1, 1996, that Montez was an informant who was in the process of arranging a sale of cocaine for Agent Endre. Later in August, Donald learned from Assistant State's Attorney Lorraine Scaduto that the sale Montez arranged led to the arrest of defendants, and that defendants were represented by his brother, Robert. Donald subsequently discussed with Robert what Montez had told him with respect to the sale. He felt free to do so because he thought Montez had given him "a waiver of any conflict of interest." Donald also testified that Montez owed legal fees to the Novelle firm, but that the firm had no plans to try to collect.

The trial court found that Robert Novelle's firm represented a State's witness, Montez, in matters involving the very facts that formed the basis for the charges against defendants. The court found that, although the firm no longer represented Montez, the prior representation raised doubts about Robert's ability to cross-examine Montez. The court also found that there would be an appearance of impropriety should the jury learn that defense counsel's firm had represented a State's witness in connection with the same drug sale that is at issue in the defendants' case. The trial court then granted the State's motion to disqualify Robert.

The defendants took an interlocutory appeal of the disqualification order, which the appellate court heard pursuant to our supervisory order. The appellate court reversed, holding that the defendants had given a clear waiver of their right to conflict-free counsel and that the trial court abused its discretion when it nevertheless disqualified their counsel of choice. 329 Ill. App. 3d at 123. The State appealed. We now reverse the appellate court and affirm the order of the trial court disqualifying Robert Novelle.


The sixth amendment of the United States Constitution guarantees a criminal defendant the right to the assistance of the counsel of his choice, but that right is subject to certain limits. Wheat v. United States, 486 U.S. 153, 159, 100 L. Ed. 2d 140, 148-49, 108 S. Ct. 1692, 1697 (1988). Among those limits is a trial court's "substantial latitude" to refuse to allow a defendant to waive his chosen counsel's actual or potential conflict of interest. Wheat, 486 U.S. at 163, 100 L. Ed. 2d at 151, 108 S. Ct. at 1699. Trial courts need latitude because they must decide whether to accept a proffered waiver before trial, when the "likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict, even for those thoroughly familiar with criminal trials." Wheat, 486 U.S. at 162-63, 100 L. Ed. 2d at 151, 108 S. Ct. at 1699.

In People v. Holmes, 141 Ill. 2d 204, 228 (1990), we expressly followed Wheat to evaluate a defendant's claim that a trial court had denied his right to counsel of choice. Holmes held that a reviewing court must not set aside a trial court's decision to disqualify a defendant's chosen counsel unless there has been a clear abuse of discretion. Holmes, 141 Ill. 2d at 224. Thus the trial court's decision to disqualify Robert Novelle must be affirmed unless it was a clear abuse of discretion. Generally, a court abuses its discretion when its decision is fanciful, arbitrary, or unreasonable to the degree that no reasonable person would agree with it. People v. Illgen, 145 Ill. 2d 353, 364 (1991).

Defendants argue that, because it is particularly important to achieve consistency when a constitutional right is at stake, we should apply a deferential standard of review only to the trial court's factual findings and should review the trial court's "assessment" of the facts de novo. Defendants rely on People v. Crane, 195 Ill. 2d 42, 51-52 (2001), which involved a claimed denial of the constitutional speedy-trial right. In Crane, after noting that speedy-trial claims are decided under a balancing test, we reasoned that:

"when a trial court performs the *** balancing test and weighs the interests of the State against the interests of the defendant in light of the circumstances of the case, there is no need to afford deference to a trial court's determination. The trial court is in no better position than the reviewing court to balance the competing concerns. For this reason, we conclude that the ultimate determination of whether a defendant's constitutional speedy-trial right has been violated is subject to de novo review." Crane, 195 Ill. 2d at 51-52.

Defendants contend that the trial court in this case did not base its decision on findings of disputed fact, but only on the undisputed fact that Donald Novelle represented Montez. They argue that we should follow the reasoning in Crane and review the trial court's decision de novo because, as in Crane, the trial court in this case weighed the facts with a constitutional right of the defendants lying in the balance.

We reject defendants' argument. Wheat and Holmes are squarely on point and clearly require deference to the weight the trial court gave to the facts. We have said that "[a] reviewing court must look to the criteria on which the trial court should rely to determine if the trial court abused its discretion." Boatmen's National Bank of Belleville v. Martin, 155 Ill. 2d 305, 314 (1993). Thus a trial court abuses its discretion if it fails to apply the proper criteria when it weighs the facts, and our inquiry must consider both the legal adequacy of way the trial court reached its result as well as whether the result is within the bounds of reason. Moreover, while formal findings of fact and statements of reasons are not required, the trial court must make a record adequate to allow meaningful review of its exercise of discretion. People v. M.D., 101 Ill. 2d 73, 84 (1984), quoting People v. Taylor, 76 Ill. 2d 289, 301 (1979). Such review reconciles the need to protect defendants' constitutional right to counsel of choice with the principle that trial courts must have discretion in this area.



Wheat and Holmes provide substantial guidance regarding how a trial court may exercise its discretion when ruling on a motion to disqualify defense counsel. Wheat held that a trial court may decline a proffered waiver, not only when it has reason to find an actual conflict of interest, but also when there is a showing of "serious potential for conflict." Wheat, 486 U.S. at 164, 100 L. Ed. 2d at 152, 108 S. Ct. at 1699. In Holmes, we followed Wheat to hold that the trial court acted within its discretion in disqualifying defense counsel when defendant's right to counsel of choice "was overcome by a showing of a serious potential for conflict." Holmes, 141 Ill. 2d at 228. Therefore a trial court may exercise its discretion to deny a defendant's right to counsel of choice only if it could reasonably find that defense counsel has a specific professional obligation that actually does conflict or has a serious potential to conflict with defendant's interests. See, e.g., State v. Ehlers, 262 Neb. 247, 260, 631 N.W.2d 471, 483-84 (2001) (following Wheat to hold that the trial court ...

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