{ "id": 35339, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT SANDERS, Defendant-Appellant", "name_abbreviation": "People v. Sanders", "decision_date": "1998-02-13", "docket_number": "No. 3\u201496\u20140127", "first_page": "734", "last_page": "738", "citations": [ { "type": "official", "cite": "294 Ill. App. 3d 734" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "687 N.E.2d 521", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "527" } ], "opinion_index": 0 }, { "cite": "288 Ill. App. 3d 1025", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1596994 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "1034" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/288/1025-01" ] }, { "cite": "615 N.E.2d 843", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "246 Ill. App. 3d 243", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5389114 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/246/0243-01" ] }, { "cite": "553 N.E.2d 760", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1990, "pin_cites": [ { "parenthetical": "retrial denied where defendant waited until after sentencing to inform trial court that newly elected State's Attorney appeared once on defendant's behalf as assistant public defender and failed to show prejudice on appeal" } ], "opinion_index": 0 }, { "cite": "196 Ill. App. 3d 321", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2489445 ], "weight": 4, "year": 1990, "pin_cites": [ { "parenthetical": "retrial denied where defendant waited until after sentencing to inform trial court that newly elected State's Attorney appeared once on defendant's behalf as assistant public defender and failed to show prejudice on appeal" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/196/0321-01" ] }, { "cite": "239 N.E.2d 441", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "pin_cites": [ { "parenthetical": "defense counsel's firm simultaneously represented defendant and burglary victim" } ], "opinion_index": 0 }, { "cite": "40 Ill. 2d 109", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2856293 ], "year": 1968, "pin_cites": [ { "parenthetical": "defense counsel's firm simultaneously represented defendant and burglary victim" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/40/0109-01" ] }, { "cite": "361 N.E.2d 569", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "pin_cites": [ { "parenthetical": "defense counsel formerly appeared as assistant State's Attorney in defendant's case" } ], "opinion_index": 0 }, { "cite": "66 Ill. 2d 162", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5464500 ], "year": 1977, "pin_cites": [ { "parenthetical": "defense counsel formerly appeared as assistant State's Attorney in defendant's case" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0162-01" ] }, { "cite": "364 N.E.2d 67", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "pin_cites": [ { "parenthetical": "defense counsel simultaneously represented administrator of victim's estate" } ], "opinion_index": 0 }, { "cite": "67 Ill. 2d 127", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5812309 ], "year": 1977, "pin_cites": [ { "parenthetical": "defense counsel simultaneously represented administrator of victim's estate" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0127-01" ] }, { "cite": "392 N.E.2d 1345", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "parenthetical": "defense counsel simultaneously served as part-time assistant Attorney General representing State" } ], "opinion_index": 0 }, { "cite": "76 Ill. 2d 418", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2984352 ], "weight": 2, "year": 1979, "pin_cites": [ { "parenthetical": "defense counsel simultaneously served as part-time assistant Attorney General representing State" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0418-01" ] }, { "cite": "461 N.E.2d 393", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "defense counsel simultaneously represented municipality where defendant was prosecuted" } ], "opinion_index": 0 }, { "cite": "101 Ill. 2d 104", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3160843 ], "year": 1984, "pin_cites": [ { "parenthetical": "defense counsel simultaneously represented municipality where defendant was prosecuted" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/101/0104-01" ] }, { "cite": "525 N.E.2d 30", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 1988, "opinion_index": 0 }, { "cite": "123 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5551204 ], "weight": 7, "year": 1988, "pin_cites": [ { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0001-01" ] } ], "analysis": { "cardinality": 455, "char_count": 8308, "ocr_confidence": 0.778, "pagerank": { "raw": 6.079572127879695e-08, "percentile": 0.3753025755555633 }, "sha256": "5f33df0488fa8f61e512702ab464f432d24e26798798836740aee02b3ff46c01", "simhash": "1:2820bc4ee577a717", "word_count": 1327 }, "last_updated": "2023-07-14T15:05:51.326352+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT SANDERS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE LYTTON\ndelivered the opinion of the court:\nDefendant Robert Sanders was convicted of armed violence, unlawful possession of a controlled substance (cocaine), unlawful possession of cannabis, unlawful use of a weapon and unlawful possession of a firearm without a firearm owner\u2019s identification card (720 ILCS 5/33A \u2014 2, 570/402(c), 55074(a), 5/24 \u2014 1(a)(4) (West 1992); 430 ILCS 65/2 (West 1992)). He was subsequently sentenced to six years\u2019 imprisonment. Defendant appeals, claiming a conflict of interest arose when the initial attorney assigned to his case, a public defender, was later appointed State\u2019s Attorney. We affirm.\nFACTS\nDefendant was arrested on October 6, 1993; he first appeared in court pro se on October 7. The court set bail, appointed the public defender to represent defendant and set the cause for arraignment. On October 12, public defender William O. Schmidt assigned the case to his assistant, Michael J. Kick. At the arraignment on October 26, a private attorney, Sherri Carr, entered her appearance. Kick did not appear, and the office of the public defender was discharged. The State served its first discovery on attorney Carr.\nOn March 17, 1994, another private attorney, Leonard Sacks, substituted for Carr. Sacks continued to represent defendant throughout the remainder of the trial court proceedings. Defendant was convicted on all counts on January 5, 1996.\nIn the meantime, on September 1, 1995, Kick became Kankakee County State\u2019s Attorney. As of October 2, 1995, notices and pleadings from the prosecutor\u2019s office had Kick\u2019s name listed as State\u2019s Attorney. Nevertheless, the record shows that Assistant State\u2019s Attorney John Kezdy was the sole member of the State\u2019s Attorneys office prosecuting the case after June 20, 1995.\nDISCUSSION AND ANALYSIS\nOn appeal, defendant argues that Kick\u2019s roles as State\u2019s Attorney and defense counsel in the same case created a per se conflict of interest and rendered defendant\u2019s trial unfair. We disagree.\n1. Conflicts of Interest\nA brief overview of applicable law is necessary to our analysis. In People v. Spreitzer, 123 Ill. 2d 1, 525 N.E.2d 30 (1988), our supreme court explained the differences between per se conflicts of interest and actual conflicts.\na. Per Se Conflicts\nA per se conflict arises when defense counsel has some tie to a person or entity that would benefit from a verdict unfavorable to the defendant. Spreitzer, 123 Ill. 2d 1, 525 N.E.2d 30. Our supreme court has determined that a conflict is per se disabling when counsel has had a prior or contemporaneous association with the prosecution or the victim. See, e.g., People v. Washington, 101 Ill. 2d 104, 461 N.E.2d 393 (1984) (defense counsel simultaneously represented municipality where defendant was prosecuted); People v. Fife, 76 Ill. 2d 418, 392 N.E.2d 1345 (1979) (defense counsel simultaneously served as part-time assistant Attorney General representing State); People v. Coslet, 67 Ill. 2d 127, 364 N.E.2d 67 (1977) (defense counsel simultaneously represented administrator of victim\u2019s estate); People v. Kester, 66 Ill. 2d 162, 361 N.E.2d 569 (1977) (defense counsel formerly appeared as assistant State\u2019s Attorney in defendant\u2019s case); People v. Stoval, 40 Ill. 2d 109, 239 N.E.2d 441 (1968) (defense counsel\u2019s firm simultaneously represented defendant and burglary victim).\nWhen a per se conflict exists, a defendant may expressly waive his attorneys conflict. However, he is not deemed to have waived the issue by his silence at trial. See Fife, 76 Ill. 2d 418, 392 N.E.2d 1345. Prejudice is presumed, and the defendant need not show that his attorneys performance was in any way affected by the conflict in order to obtain a reversal of his conviction. Spreitzer, 123 Ill. 2d 1, 525 N.E.2d 30.\nb. Actual Conflicts\nIn cases involving \u201cactual\u201d conflicts of interest that are not per se disabling, either the conflict must be timely brought to the attention of the trial court or, on appeal, defendant must show actual prejudice. See, e.g., Spreitzer, 123 Ill. 2d at 18 (relief denied where former assistant State\u2019s Attorney\u2019s appointment as public defender during prosecution of defendant\u2019s case was not brought to trial court\u2019s attention and no prejudice was shown); People v. Price, 196 Ill. App. 3d 321, 553 N.E.2d 760 (1990) (retrial denied where defendant waited until after sentencing to inform trial court that newly elected State\u2019s Attorney appeared once on defendant\u2019s behalf as assistant public defender and failed to show prejudice on appeal); see also People v. Hernandez, 246 Ill. App. 3d 243, 615 N.E.2d 843 (1993). Where a timely objection is raised in the trial court, the court is required to replace the conflicted attorney or obtain the defendant\u2019s express waiver of the conflict if there is even an appearance of impropriety. See, e.g., People v. Courtney, 288 Ill. App. 3d 1025, 687 N.E.2d 521 (1997). If the issue is not raised at trial, it is deemed waived.\nIf the actual conflict is waived at trial, then, in order to obtain reversal on appeal, the defendant must demonstrate that there was prejudice at trial, i.e., special circumstances engendering an actual conflict adversely affecting the defendant\u2019s right to a fair trial. Spreitzer, 123 Ill. 2d 1, 525 N.E.2d 30. Prejudice is shown if there is a possibility that a defendant\u2019s former counsel divulged or used confidential information in the prosecution of the defendant\u2019s case. See People v. Price, 196 Ill. App. 3d 321, 553 N.E.2d 760 (1990); see also Courtney, 288 Ill. App. 3d 1025, 687 N.E.2d 521.\n2. Kick\u2019s Alleged Conflict of Interest\nThe conflict in this case was not per se; Kick held the position as State\u2019s Attorney neither prior to nor contemporaneously with his defense of the cause. See Spreitzer, 123 Ill. 2d 1, 525 N.E.2d 30. Further, prior to this appeal, defendant neither indicated that a conflict of interest existed nor requested that a special prosecutor be appointed. In this respect, the alleged conflict is distinguishable from that presented in Courtney.\nIn Courtney, Kick actively represented the defendant before he was appointed State\u2019s Attorney and his conflict of interest was raised repeatedly in the trial court. Although the State initially advised the court that an assistant Attorney General would take over prosecution of the case, it was ultimately handled by Kick\u2019s office. Under these circumstances, we ruled that no further evidence of prejudice was required to entitle defendant to a new trial with a special prosecutor. Courtney, 288 Ill. App. 3d at 1034, 687 N.E.2d at 527.\nUnlike Courtney, Kick\u2019s conflict in this case was never brought to the court\u2019s attention. Therefore, we review the cause only to determine whether Kick\u2019s roles in the case constituted an actual conflict that prejudiced defendant\u2019s right to a fair trial. See Price, 196 Ill. App. 3d 321, 553 N.E.2d 760; Spreitzer, 123 Ill. 2d 1, 525 N.E.2d 30. Defendant does not argue actual prejudice, and the record discloses none. During Kick\u2019s brief assignment as counsel of record prior to being appointed State\u2019s Attorney, he never appeared on defendant\u2019s behalf. There is no indication that any information was exchanged between defendant and Kick or between private defense counsel and Kick. Nor does it appear that Kick was actively involved with the case after his appointment as State\u2019s Attorney. Kick\u2019s initial nominal involvement as defense counsel and subsequent supervisory position relative to the assistant State\u2019s Attorney prosecuting the case does not, without more, warrant a finding that defendant was deprived of a fair trial. See Price, 196 Ill. App. 3d 321, 553 N.E.2d 760. Accordingly, we hold that defendant was not prejudiced, and we deny his request for a new trial.\nCONCLUSION\nFor the reasons stated, the judgment of the circuit court of Kankakee County is affirmed.\nAffirmed.\nHOLDRIDGE and HOMER, JJ., concur.", "type": "majority", "author": "JUSTICE LYTTON" } ], "attorneys": [ "Robert Agostinelli, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "Michael Kick, State\u2019s Attorney, of Kankakee (John X. Breslin and Robert M. Hansen, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT SANDERS, Defendant-Appellant.\nThird District\nNo. 3\u201496\u20140127\nOpinion filed February 13, 1998.\nRobert Agostinelli, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nMichael Kick, State\u2019s Attorney, of Kankakee (John X. Breslin and Robert M. Hansen, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0734-01", "first_page_order": 752, "last_page_order": 756 }