Appeal from the Circuit Court for the 14th Judicial Circuit, Henry County, Illinois, No. 07-CF-37 Honorable Larry S. Vandersnick, Judge, Presiding.
The opinion of the court was delivered by: Justice McDADE
JUSTICE McDADE delivered the judgment of the court, with opinion.
Justice Lytton concurred in the judgment and opinion Justice Schmidt dissented, with opinion
Defendant, Albert L. Fields, was convicted of two counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2006)), three counts of criminal sexual assault (720 ILCS 5/12-13(a)(1), (a)(3) (West 2006)), and two counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(b) (West 2006)). He appeals contending that he was denied effective assistance of counsel because his attorney was laboring under a per se conflict of interest. We reverse and remand for a new trial.
On January 5, 2007, defendant was charged by information alleging that between 1999 and October 27, 2004, defendant, age 17 or older, did, on two separate occasions, place his penis in K.N.J.'s mouth when she was younger than 13 (counts I and II predatory criminal sexual assault of a child); between 1999 and February 2006, did place his penis in K.N.J's mouth by the use or threat of force (count III criminal sexual assault); between 1999 and February 2006, did, on two separate occasions, place his penis in K.N.J.'s mouth when she was younger than 18 and he was her stepfather (counts IV and V criminal sexual assault); and between 2001 and February 2006, did fondle K.N.J.'s breasts and vagina and made her fondle his penis for his sexual arousal or gratification when she was younger than 18 and he was her stepfather (counts VI and VII aggravated criminal sexual abuse).
A public defender was appointed for defendant. Prior to trial, the court granted the prosecution's motion to introduce other-crimes evidence pursuant to section 115-7.3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-7.3 (West 2008)). Specifically, the court allowed evidence regarding an incident of aggravated criminal sexual abuse which formed the basis for a conviction in Rock Island County.*fn1 The question subsequently arose concerning the form in which that evidence would be presented. Defendant argued that testimony about the prior incident would be appropriate but not a certified copy of conviction. The State contended, and the trial court agreed, that the prosecution could present both.
During defendant's trial, the State tendered People's Exhibit No. 8, a certified copy of defendant's conviction of aggravated criminal sexual abuse in Rock Island County. The court admitted the exhibit and told the jurors it was admitted on the issue of defendant's propensity to commit the offenses with which he was charged in this case, and it was up to them to determine how much weight it should be given.
The State also called C.S. to offer testimony concerning defendant's conviction of aggravated criminal sexual abuse in Rock Island County. C.S. testified that she was born on September 12, 1996. In the summer of 2005, she lived in Moline with her mother and defendant. One morning, defendant gave her a book containing photographs of naked women and told her to put it on his weight set in the basement. He then followed C.S. downstairs, put her hand on his "wee wee" and made her rub it. Defendant also put his hand down C.S.'s pants and stuck his finger inside her. C.S. was nine years old at the time. Defendant told C.S. that he would spank her if she told anyone. C.S. eventually told her mother after defendant had kicked them out of the house.
The record on appeal reveals that defendant's public defender had represented C.S. in a previous juvenile proceeding as guardian ad litem. The juvenile proceeding appears to be unrelated to the criminal cases brought against defendant. Counsel's prior representation of C.S. was never disclosed to the trial court or waived on the record by defendant.
Following deliberations, in the instant case, the jury found defendant guilty on all seven counts. The trial court subsequently denied defendant's motion for a new trial. At the conclusion of defendant's sentencing hearing, the court vacated the three criminal sexual assault convictions (counts III, IV, and V) on one-act-one-crime grounds, and imposed consecutive sentences of 18 years' imprisonment for each conviction of predatory criminal sexual assault of a child (Counts I and II), and concurrent sentences of 6 years' imprisonment for each conviction of aggravated criminal sexual abuse (counts VI and VII).
Initially, defendant contends that this "cause should be remanded for a new trial because defense counsel labored under a per se conflict of interest where he had previously represented *** [C.S.] as guardian ad litem." Because C.S. is currently "an entity ...