Appeal from the Circuit Court of De Kalb County. No. 05-CF-661. Honorable Robbin J. Stuckert, Judge, Presiding.
Where defendant filed a pro se postconviction petition challenging the enhancement of his conviction for driving under the influence of alcohol to a Class 2 felony based on his prior convictions and the same public defender who represented defendant at trial was appointed for defendant in the postconviction proceedings, but the trial court dismissed the petition on the ground that defendant's allegations that the enhancement was based on several prior convictions listed in his presentence report that were actually attributable to other persons had been decided in his direct appeal and were barred by res judicata, the appellate court agreed with defendant's claim on his appeal from the dismissal of his petition that his postconviction counsel was ineffective and was acting under a conflict of; therefore, the dismissal was vacated and the cause was remanded for further proceedings with the appointment of counsel other than the public defender who represented defendant at his trial.
Thomas A. Lilien and Paul J. Glaser, both of State Appellate Defender's Office, of Elgin, for appellant.
Richard H. Schmack, State's Attorney, of Sycamore (Lawrence M. Bauer and Sally A. Swiss, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justice McLaren concurred in the judgment and opinion. Justice Spence dissented, with opinion.
[¶1] Following a jury trial in the circuit court of De Kalb County, defendant, Glenn A. Yaworski, was found guilty of driving under the influence of alcohol (DUI) in violation of section 11-501(a)(2) of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501(a)(2) (West 2004)) and driving while his license was revoked (DWLR) (625 ILCS 5/6-303(a) (West 2004)). Defendant received a Class 2 felony sentence of 3 1/2 years' imprisonment for DUI pursuant to section 11-501(c-1)(3) of the Code (625 ILCS 5/11-501(c-1)(3) (West 2004)). The trial court vacated the DWLR conviction. In an earlier appeal, we affirmed defendant's DUI conviction and his sentence for that offense. People v. Yaworski, 2011 IL App. (2d) 090785, 958 N.E.2d 361, 354 Ill.Dec. 618 ( Yaworski I ). In addition, we reinstated defendant's DWLR conviction. Thereafter, on February 29, 2012, defendant, while on mandatory supervised release (MSR), filed a pro se petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)), challenging the enhancement of the offense of DUI to a Class 2 felony. The trial court appointed the office of the De Kalb County public defender to represent defendant in the postconviction proceedings. Assistant Public Defender Charles Criswell appeared on defendant's behalf. Criswell had represented defendant at trial. The State successfully moved to dismiss defendant's petition and this appeal followed. Defendant argues that, because the petition claimed that he had not received the effective assistance of counsel at trial, Criswell labored under a conflict of interest in the postconviction proceedings. We agree, and we therefore vacate and remand for further proceedings.
[¶2] As pertinent here, section 11-501(c-1)(3) of the Code provides that a fourth or subsequent DUI is a nonprobationable Class 2 felony if the offense occurred while the offender's driving privileges were suspended or revoked for a violation of section 11-501(a) of the Code. After the jury returned its verdict at defendant's trial, the trial court ordered the preparation of a presentencing investigation report (PSI). The PSI showed that defendant had an extensive criminal history that included
five prior DUI convictions. (A sixth prior DUI conviction had been reversed.) At his sentencing hearing, defendant claimed that the PSI was inaccurate and that it listed 24 offenses of which he had not been convicted, among them a 1989 DUI that occurred in Cook County. In Yaworski I, defendant argued that the trial court erred in relying on the PSI to enhance his offense to a Class 2 felony. He noted that the PSI indicated that the 1989 Cook County DUI resulted in the revocation of his license in 2005. Similarly, the PSI listed a 1989 McHenry County DUI that resulted in the revocation of his license in 2005. Defendant argued that " '[t]he unlikelihood of DUI tickets languishing for 16 years before dispositions gives reason to doubt the accuracy of both listings specifically, and the rest of the listings in general.'" Yaworski I, 2011 IL App. (2d) 090785, ¶ 4. We rejected the argument, observing that defendant's driving abstract (which was prima facie evidence of the facts set forth therein) indicated that defendant had five prior DUI convictions and that, even if the 1989 Cook and McHenry County offenses had not occurred, the DUI in the present case would still be defendant's fourth. Id. ¶ ¶ 6-7.
[¶3] In his pro se postconviction petition, defendant alleged that " [s]ince the date of his release from the Department of Corrections, [defendant] has discovered documentation to establish his claim that several of what were listed in his presentence report as being prior convictions of his were in fact attributable to other individuals." Defendant added that " [t]his documentation establishes that the petitioner was denied his rights to due process of law and effective assistance of trial counsel." (Emphasis added.) Criswell did not amend the pro se petition, but he did submit to the court a " mug shot" of the arrestee in one of the cases listed in defendant's PSI. Criswell argued that the mug shot was a photograph of someone other than defendant. In its written order granting the State's motion to dismiss the petition, the trial court appeared to conclude that the issue raised in ...