Appeal from the Circuit Court of the 10th Judicial Circuit, Marshall County, Illinois. Circuit Nos. 05-CF-13, 06-CF-06, and 06-CF-13 Honorable Kevin R. Galley, Judge, Presiding.
The opinion of the court was delivered by: Justice Holdridge
JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
Justice O'Brien specially concurred, with opinion.
Presiding Justice Schmidt dissented, with opinion.
¶ 1 The defendant, Aaron Fountain, pleaded guilty to a single count of theft by deception (720 ILCS 5/16-1(a)(2)(A) (West 2004)) in exchange for a negotiated sentence of probation, restitution, and the payment of costs. The State subsequently filed a petition to revoke the defendant's probation. The defendant admitted the allegation of that petition as well as the allegations of a supplemental petition to revoke the defendant's probation later filed by the State. Subsequently, the circuit court sentenced the defendant in absentia to a five-year term of l imprisonment. The defendant now appeals from that judgment, arguing that he received ineffective assistance of counsel during the probation revocation proceedings because the attorney appointed to represent him during those proceedings labored under a per se conflict of interest. He asks us to remand the matter to the circuit court and order the court to appoint substitute counsel to investigate, evaluate, and properly present the defendant's claim of ineffective assistance of counsel to the circuit court. In the alternative, the defendant asks us to remand and order the circuit court to conduct a more thorough inquiry into the merits of the defendant's claim.
¶ 3 The defendant was charged with theft by deception for falsely agreeing to sell Mitch Wilson's coins in exchange for money. On May 4, 2005, the defendant entered a plea of not guilty, demanded a jury trial, and requested the services of the public defender. The circuit court appointed public defender Patrick Murphy to represent the defendant. During the times relevant to this appeal, Murphy was engaged in the private practice of law and was affiliated with a law firm. On defendant's motion, the circuit court continued the defendant's jury trial to April 16, 2007.
¶ 4 On April 9, 2007, privately retained counsel Donald Knuckey appeared on the defendant's behalf, and the circuit court allowed Murphy to withdraw as defendant's counsel. Two days later, the defendant pleaded guilty to the charge of the indictment in exchange for a 30-month term of probation. As a condition of his probation, the defendant was required to pay restitution to the estate of Mitch Wilson in the amount $12,280 in monthly installments of $250, with payments to begin in July 2008.
¶ 5 In September 2008, the State filed a petition to revoke the defendant's probation. The State's petition alleged that the defendant had willfully violated his probation by failing to make any restitution payments to Mitch Wilson's estate. The defendant entered a plea of not guilty and asked the court to appoint a public defender to represent him during the probation revocation proceedings. The court again appointed Murphy as defendant's counsel.
¶ 6 In November 2008, the State filed a supplemental petition to revoke the defendant's probation alleging that the defendant had committed a new offense of felony theft by deception against a different victim in Sangamon County in July 2008. On January 20, 2009, the defendant appeared with Murphy as his counsel and made a blind admission to the allegations of the State's initial and supplemental petitions to revoke his probation. The circuit court ordered the preparation of a presentence investigation report (PSI) and scheduled a sentencing hearing for March 16, 2009.
¶ 7 When the defendant failed to meet with the probation officer for the preparation of the PSI and failed to appear at his scheduled sentencing hearing, the State moved to proceed with the sentencing in absentia. Murphy filed a motion to continue the sentencing hearing. The circuit court denied the motion and conducted a full sentencing hearing in the defendant's absence. During the sentencing hearing, the State presented the testimony of Marty Sloan-Kruse, the Marshall County probation officer who prepared the defendant's PSI, and Norman Koerner, the alleged victim of the theft alleged in the State's supplemental petition to revoke the defendant's probation. Murphy did not cross-examine either witness. The circuit court sentenced the defendant to a five-year term of imprisonment and issued a warrant for his arrest.
¶ 8 Two months later, after he was arrested on the warrant, the defendant appeared before the court with Murphy as his counsel. After the circuit court summarized the history of the case and the in absentia sentencing hearing, Murphy informed the circuit court that the defendant had told Murphy that he believed the public defender's office had a conflict of interest in representing him because of Murphy's law firm's "involvement with Mitch Wilson." Murphy conceded that another member of his law firm had "represented Mr. Wilson's estate and handled real estate matters for the estate in selling off Mr. Wilson's office in order to close out that estate." However, Murphy stated that he "personally did not have any contact with Mr. Wilson or any of his heirs of beneficiaries." Nevertheless, Murphy informed the circuit court that the defendant "would like that issue addressed." In response, the State's Attorney noted that Mr. Wilson was alive at the time the defendant was charged and that he "did not know [Mr. Wilson's] date of death, if any conflict really exists."
¶ 9 The circuit court then made some comments in response to the alleged conflict of interest raised by the defendant. First, the court noted that although it had appointed Murphy to represent the defendant in May 2005, it had allowed Murphy to withdraw as defendant's counsel prior to the entry of the defendant's plea. According to the court, Murphy's representation of the defendant terminated on April 9, 2007, when Knuckey entered his appearance on behalf of the defendant. The court noted that the terms of the fully negotiated plea agreement, including the defendant's agreement to pay restitution to the estate of Mitch Wilson as a condition of his probation, were presented to the court two days after Murphy had withdrawn as defendant's counsel. The court stressed that Murphy was "not ...