{ "id": 2874712, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. James Kester, Defendant-Appellant", "name_abbreviation": "People v. Kester", "decision_date": "1975-11-10", "docket_number": "No. 74-212", "first_page": "262", "last_page": "273", "citations": [ { "type": "official", "cite": "33 Ill. App. 3d 262" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "330 N.E.2d 505", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "61 Ill.2d 105", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2966716 ], "opinion_index": 0, "case_paths": [ "/ill-2d/61/0105-01" ] }, { "cite": "168 N.W. 764", "category": "reporters:state_regional", "reporter": "N.W.", "case_ids": [ 5370641, 5373942 ], "year": 1918, "opinion_index": 0, "case_paths": [ "/sd/41/0030-01", "/sd/41/0065-01" ] }, { "cite": "41 S.D. 65", "category": "reporters:state", "reporter": "S.D.", "case_ids": [ 5373942 ], "year": 1918, "opinion_index": 0, "case_paths": [ "/sd/41/0065-01" ] }, { "cite": "47 Wis.2d 452", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8671071 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/wis-2d/47/0452-01" ] }, { "cite": "524 P.2d 363", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1974, "opinion_index": 0 }, { "cite": "115 Cal. Rptr. 235", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1974, "opinion_index": 0 }, { "cite": "331 N.E.2d 643", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "30 Ill.App.3d 199", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2622124 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/30/0199-01" ] }, { "cite": "249 A.2d 303", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1969, "opinion_index": 0 }, { "cite": "433 Pa. 159", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1921060 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/pa/433/0159-01" ] }, { "cite": "318 N.E.2d 102", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "23 Ill.App.3d 43", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2504706 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/23/0043-01" ] }, { "cite": "454 P.2d 494", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1969, "opinion_index": 0 }, { "cite": "203 Kan. 354", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 550070 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/kan/203/0354-01" ] }, { "cite": "406 F.2d 739", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2117119 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/f2d/406/0739-01" ] }, { "cite": "420 F.2d 912", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2159550 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/f2d/420/0912-01" ] }, { "cite": "462 P.2d 680", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2115228, 1869012 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/or/254/0617-01", "/or-app/1/0374-01" ] }, { "cite": "1 Ore.App. 374", "category": "reporters:state", "reporter": "Or. App.", "case_ids": [ 1869012 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/or-app/1/0374-01" ] }, { "cite": "351 F.2d 905", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 808020 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/f2d/351/0905-01" ] }, { "cite": "272 N.E.2d 669", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "1 Ill.App.3d 87", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5315032 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/1/0087-01" ] }, { "cite": "107 N.E. 165", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 2, "opinion_index": 0 }, { "cite": "265 Ill. 448", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4780233 ], "weight": 3, "pin_cites": [ { "page": "477, 479" } ], "opinion_index": 0, "case_paths": [ "/ill/265/0448-01" ] }, { "cite": "332 N.E.2d 64", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "30 Ill.App.3d 37", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2620591 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-app-3d/30/0037-01" ] }, { "cite": "302 N.E.2d 34", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "55 Ill.2d 74", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2939834 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/55/0074-01" ] }, { "cite": "298 F.2d 461", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 229545 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/f2d/298/0461-01" ] }, { "cite": "239 N.E.2d 441", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1962, "opinion_index": 0 }, { "cite": "40 Ill.2d 109", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2856293 ], "weight": 3, "year": 1962, "pin_cites": [ { "page": "111-12" }, { "page": "113" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/40/0109-01" ] }, { "cite": "315 U.S. 60", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 374640 ], "weight": 4, "year": 1962, "opinion_index": 0, "case_paths": [ "/us/315/0060-01" ] }, { "cite": "397 U.S. 759", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12058501 ], "weight": 3, "year": 1970, "pin_cites": [ { "page": "1449" } ], "opinion_index": 1, "case_paths": [ "/us/397/0759-01" ] }, { "cite": "411 U.S. 258", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 10205 ], "weight": 3, "year": 1973, "pin_cites": [ { "page": "267" }, { "page": "243" }, { "page": "1608" } ], "opinion_index": 1, "case_paths": [ "/us/411/0258-01" ] }, { "cite": "306 N.E.2d 886", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 1 }, { "cite": "16 Ill.App.3d 830", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2524476 ], "year": 1974, "opinion_index": 1, "case_paths": [ "/ill-app-3d/16/0830-01" ] }, { "cite": "79 S.Ct. 294", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 1 }, { "cite": "3 L.Ed.2d 240", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 1 }, { "cite": "358 U.S. 921", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3661123, 3650950, 3661351, 3649480, 3652039, 3653562 ], "opinion_index": 1, "case_paths": [ "/us/358/0921-06", "/us/358/0921-01", "/us/358/0921-04", "/us/358/0921-03", "/us/358/0921-05", "/us/358/0921-02" ] }, { "cite": "256 F.2d 345", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 457133 ], "year": 1958, "opinion_index": 1, "case_paths": [ "/f2d/256/0345-01" ] }, { "cite": "387 F.2d 614", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2091224 ], "year": 1968, "opinion_index": 1, "case_paths": [ "/f2d/387/0614-01" ] }, { "cite": "332 N.E.2d 64", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "30 Ill.App.3d 37", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2620591 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/30/0037-01" ] }, { "cite": "302 N.E.2d 34", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "55 Ill.2d 74", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2939834 ], "weight": 2, "pin_cites": [ { "page": "77" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/55/0074-01" ] }, { "cite": "40 Ill.2d 109", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2856293 ], "year": 1962, "pin_cites": [ { "page": "115" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/40/0109-01" ] } ], "analysis": { "cardinality": 1160, "char_count": 29740, "ocr_confidence": 0.77, "pagerank": { "raw": 9.477679330295946e-08, "percentile": 0.5178898460875518 }, "sha256": "b17460bf72c163795cffb9eaa853a4d36264e3bb9820f7a1b3c4839402c99339", "simhash": "1:299c1765f74ee9da", "word_count": 4714 }, "last_updated": "2023-07-14T15:25:47.184380+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. James Kester, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE STOUDER\ndelivered the opinion of the court:\nThe defendant, James Kester, was indicted for burglary on January 10, 1973. On January 16, 1973, the defendant was called three times in open court and failed to make an appearance. The Assistant State\u2019s Attorney filed with the court a motion for discovery and a request for the issuance of a bench warrant and an order forfeiting bond.\nWhen the cause was called for arraignment ten days later, the defendant was again absent. The Assistant State\u2019s Attorney renewed his request that the court issue a bench warrant and an order forfeiting bond. Both motions were granted.\nThe defendant appeared in court on April 17, 1973, at which time the court provided him with a copy of the indictment and appointed the Public Defender of Peoria County as defense counsel.\nSoon after the burglary indictment was returned, two unrelated indictments were also returned charging defendant with unlawful delivery of cannabis. During arraignment on these indictments, the court again offered to appoint the Public Defender. The defendant, however, objected, stating that he desired counsel other than the Public Defender because during incarceration he had been unable to meet with the Assistant Public Defender, recently assigned to his case. Over defendant\u2019s objection the Public Defender was appointed to the cannabis case.\nOn August 13, 1973, the cases were called for trial. On motion of defense counsel, the three charges were consolidated. Defendant withdrew his plea of not guilty and entered a plea of guilty to burglary and unlawful delivery of cannabis in a quantity of between 10. and 30 grams. The other cannabis charge was dismissed.\nDefendant urges that he was \u201cdenied effective assistance of counsel due to a conflict of interest which resulted from counsel\u2019s acting as both prosecutor and defense counsel for the same client in the same criminal matter.\u201d\nIt appears from the record that defendant\u2019s appointed counsel also appeared on behalf of the People, up to and including April 17, 1973, in connection with the hearings and motions on the burglary charge, as set forth above.\nThus, we are presented with a case in which the attorney, who undertook to discharge the duties of defense counsel respecting the matter of guilt or innocence, had previously served as the Assistant State\u2019s Attorney in the same criminal proceeding. Although not apparent from the record, the defendant\u2019s brief states and the People\u2019s brief admits that the attorney left the employ of the State\u2019s Attorney\u2019s Office and assumed a position with the Public Defender during the first week of May, 1973.\nWe reverse on the ground that the conflict of interest here present subjected the defendant to prejudice.\nThe right to the effective assistance of counsel is a fundamental right and entitles the person represented to the undivided loyalty of counsel. (Glasser v. United States, 315 U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457.) In People v. Stoval, 40 Ill.2d 109, 111-12, 239 N.E.2d 441, our Supreme Court relied upon the following language from Porter v. United States, 298 F.2d 461 (5th Cir. 1962):\n\u2018\u201cThe Constitution assures a defendant effective representation by counsel whether the attorney is one of his choosing or court-appointed. Such representation is lacking, however, if counsel, unknown to the accused and without his knowledgeable assent, is in a duplicitous position where his full talents \u2014 as a vigorous advocate having the single aim of acquittal by all means fair and honorable \u2014 are hobbled or fettered or restrained by commitments to others.\u2019\u201d\nThe case of People v. Newberry, 55 Ill.2d 74, 302 N.E.2d 34, strongly resembles the factual pattern present here. There, the defendant was convicted of voluntary manslaughter following a bench trial. The defendant then sought relief under the Post-Conviction Hearing Act (Ill. Rev. Stat., ch. 38, \u00a7 122\u20141 et seq.) alleging that his attorney had been the \u2018\u2018original prosecutor of this case.\u201d During oral argument, it became apparent that defendant\u2019s trial and appellate counsel had served as head of the criminal division of the Cook County State\u2019s Attorney\u2019s office while the case was being prepared. No claim was made that defense counsel, while assistant State\u2019s Attorney, had any actual knowledge of defendant\u2019s case.\nThe Illinois Supreme Court held these \u201cgeneral allegations\u201d insufficient to require an evidentiary hearing on the issue of defective representation.\nNewberry stands for the proposition that no per se conflict of interest is created when an attorney first serves as a member of the prosecution staff and then moves over to become defense counsel. The ruling is predicated upon the absence of any allegations concerning counsel\u2019s knowledge, involvement or participation as a prosecutor with respect to the criminal proceeding in which he served as defense counsel.\nAlthough based upon a similar factual pattern, Newberry requires an opposite result in the instant appeal. First, in Newberry, \u201c[n]o further facts concerning counsel\u2019s involvement, if any, in this particular prosecution were alleged,\u201d other than those previously stated. That holding authorizes reversal whenever the prosecutor is personally involved in the same criminal proceeding in which he subsequently becomes defense counsel. Second, Newberry supports reversal because the facts concerning counsel\u2019s involvement in this particular prosecution are not framed in terms of \u201cgeneral allegations\u201d without the specificity required of a post-conviction petition; rather, the facts here are clearly set out in the record. Finally, Newberry requires reversal when the record suggests that the acts or omissions of counsel \u201cmight have produced a different result.\u201d The case at bar involved a negotiated plea of guilty. We note in this regard that during the hearing in aggravation and mitigation, defense counsel stated to the court the decision to forego raising various defenses to the three offenses with which tire defendant was charged. Since defendant was represented, on the issue of guilt or innocence, by counsel who previously appeared on behalf of the People in the same criminal proceeding, we believe that the appointment of other counsel might have produced a different result.\nIn People v. Darby, 30 Ill.App.3d 37, 332 N.E.2d 64, a case which also presented a factual context related to that involved here, the appellate court, relying on Newberry, rejected a claim of conflict of interest and held no prejudice resulted to the defendant. There, the attorney, who appeared on behalf of the People at defendant\u2019s arraignment, also appeared one year later as appointed counsel on behalf of the defendant at the sentencing hearing. Since counsel\u2019s involvement or participation on behalf of the defendant was, unlike the instant appeal, unrelated to the question of guilt or innocence, but was only concerned with the matter of sentencing, we believe Darby is in harmony with the result reached here today.\nThe case of People v. Gerold, 265 Ill. 448, 107 N.E. 165, presents a factual context opposite that of the instant appeal. In Gerold, it was held that the trial court improperly permitted an attorney to appear on behalf of the People, since the attorney had for several years prior to the prosecution represented the defendant in respect to matters which formed the basis of the indictment. The court there engaged in an extensive discussion of the propriety of conflicting interests, including the following statement:\n\u201c[An attorney] should undertake no adverse employment, no matter how honest may be his motives and intentions. [Citation.] He owes to his client fidelity, secrecy, diligence, and skill, and cannot take a reward from the other side. \u00b0 * s [P]ublic policy strongly demands that one who has been employed on one side should not be permitted to appear on the other side.\u201d 265 Ill. 448, 477, 479.\nSee also People v. Carry, 1 Ill.App.3d 87, 272 N.E.2d 669, where the court, relying on Gerold, reversed the conviction. In Curry, the attorney had defended a client on the charge for which he was granted probation. Subsequently, this same attorney became a State\u2019s Attorney and represented the People at the probation revocation hearing in the same case.\nGerold and Curry are predicated upon the ethical obligations and professional responsibility of a lawyer to guard the confidences of his client. Neither case holds improper the reverse situation, presented here, in which an attorney first appears on behalf of the prosecution and subsequently moves over to become defense counsel.\nThe People argue that no prejudice resulted as the defendant stands to benefit from the knowledge gained by his attorney of the People\u2019s trial tactics and other confidential matter relative to his case. We believe, however, the People\u2019s contention overlooks the fact that counsel in this case performed inconsistent duties and represented conflicting interests. People v. Gerold, 265 Ill. 448, 107 N.E. 165.\nThe prosecutor is ordinarily committed to the view that the evidence supports a guilty verdict against the defendant. (ABA standards Relating to the Prosecution Function \u00a7 3.9 (1971) (standards neither adopted nor approved by the Supreme Court of Illinois).) This obligation does not comport with the role of defense counsel \u2014 to preserve his client\u2019s confidences and zealously pursue his client\u2019s interests. ABA Standards Relating to the Defense Function \u00a7 3.5, Commentary (1971).\nWe believe that the right to effective assistance of counsel entitles a defendant to be represented by someone who has not formed an opinion on his guilt.\nIn People v. Stoval, 40 Ill.2d 109, 239 N.E.2d 441, the defendant\u2019s court-appointed counsel was a member of the law firm which represented the victim of the crime with which the defendant was charged. Although no showing was made that the attorney conducted the defense without diligence and resoluteness, the court stated as follows:\n\u201c* # * [SJound policy disfavors the representation of an accused, especially when counsel is appointed, by an attorney with possible conflict of interests. It is unfair to the accused, for who can determine whether his representation was affected, at least, subliminally, by the conflict. Too, it places an additional burden on counsel, however conscientious, and exposes him unnecessarily to later charges that his representation was not completely faithful; In a case involving such a conflict there is no necessity for the defendant to show actual prejudice. Glosser v. United States, 315 U.S. 60; Goodson v. Peyton (4th cir.), 351 F.2d 905.\u201d 40 Ill.2d 109, 113.\nThe rationale of Stoval applies in the instant appeal. The victim of the crime in Stoval, like the prosecutor in the case at bar, seeks a conviction, albeit for different reasons. It cannot be determined from the record whether counsel\u2019s previous association with the State\u2019s Attorney influenced him in any manner. But this is precisely what Stoval sought to avoid.\nWe have examined cases from other jurisdictions, both State and Federal, containing related factual contexts. One line of cases proceeds upon the assumption that in order for a conflict to exist, the attorney must somehow be personally involved on both sides of the case. Thus, in State v. Gibbons, 1 Ore.App. 374, 462 P.2d 680 (1969), the defendant\u2019s lawyer had previously served as District Attorney. In this capacity, he had signed the defendant\u2019s indictment and appeared in court for the State in two preliminary matters. Though the defendant did not raise the issue, the Court of Appeals of Oregon resolved the question, thus suggesting the possibility of plain error. The court assumed full disclosure was made by counsel to both the State and the defendant and each consented. Since the case was vigorously defended and no apparent prejudice resulted, the court did not reverse. Nevertheless, the court stated that it could not conceive of any circumstance in which a repetition would not be ground for reversal of a conviction.\nThe case of Kelly v. Peyton, 420 F.2d 912 (4th Cir. 1969), presents a factual context similar to Gibbons. In Kelly, the defendant\u2019s lawyer was also the justice of the peace, and thus was responsible for determining that there was probable cause for the defendant\u2019s arrest before signing the arrest warrants. Since the defendant waived indictment and was tried on the warrants, the court held that prejudice resulted \u2014 in defending his client, the lawyer might have to attack the very warrants he had authorized.\nBoth Gibbons and Kelly stand for the proposition that a lawyer representing parties whose interests are conflicting cannot act with that degree of loyalty which effective representation requires if he is employed by the prosecuting sovereign and charged with duties relating to the investigation or prosecution of that case. Kelly v. Peyton, 420 F.2d 912 (4th Cir. 1969).\nOn the other hand, when the attorney is not personally involved on both sides of the case or his connection with the particular case is more remote, the danger of prejudice is minimized. (People v. Newberry, 55 Ill.2d 74, 302 N.E.2d 34; People v. Darby, 30 Ill.App.3d 37, 332 N.E.2d 64.) For example, in Goodson v. Peyton, 351 F.2d 905 (4th Cir. 1965), relied upon in Kelly, the lawyer appointed by the State court to serve as defense counsel was the prosecuting attorney for a neighboring county. No actual prejudice was found, though the court suggested that a different result might obtain if defense counsel was the prosecuting attorney for the county in which the trial was held. (Cf. Jones v. Baker, 406 F.2d 739 (10th Cir. 1969), where the defendant\u2019s lawyer in a State criminal proceeding also served as a part-time municipal magistrate. No prejudice was found since the record did not contain any specific indication of a conflict of interest.)\nThe passage of time may also vitiate the inference of a conflict of interest. (See People v. Darby, 30 Ill.App.3d 37, 332 N.E.2d 64.) Thus, in State v. Jenkins, 203 Kan. 354, 454 P.2d 494 (1969), no error was found when the appointed defense counsel had served as deputy county attorney and has prosecuted the defendant for a similar offense a few years before. (Cf. the reverse situation in People v. Wright, 23 Ill.App.3d 43, 318 N.E.2d 102, where the prior attorney-client relationship was held not to suggest any impropriety or inference thereof on the part of the assistant prosecutor who did not acquire any usable information from an unrelated criminal matter a few years before.)\nFinally, even though a conflict of interest may appear, no prejudice results if the defendant\u2019s interests are otherwise protected. For example, in Commonwealth v. Wakeley, 433 Pa. 159, 249 A.2d 303 (1969), the defendant contended that because counsel at his trial had been acting district attorney at the time he was indicted, a conflict of interest existed. Since the defendant was represented at trial by two attorneys, the court held that if one was in conflict, the other was in a position to protect his interests.\nA second line of authorities hold that the nature and duties of a public prosecutor are inherently incompatible with the obligations of a criminal defense counsel. (See People v. Cross, 30 Ill.App.3d 199, 331 N.E.2d 643, in which the court held that an attorney\u2019s representation of the defendants, on the one hand, and his affiliation with the Attorney General\u2019s office in handling inheritance tax matters, on the other, constituted a per se conflict of interest.) This result obtains in a State prosecution, though the representation of defendant does not directly conflict with appointed counsel\u2019s official duties as a city attorney \u2014 to prosecute violators of municipal ordinances. (People v. Rhodes, 12 Cal. 3rd 180, 115 Cal. Rptr. 235, 524 P.2d 363 (1974); Karlin v. State, 47 Wis.2d 452, 177 N.W.2d 318 (1970).) The rationale for this rule is twofold: first, because city police officers are the principal source of witnesses relied upon by a city attorney, there will inevitably arise a struggle between, on the one hand, counsel\u2019s obligation to represent his client to the best of his ability and, on the other hand, a public prosecutor\u2019s natural inclination not to anger the very individuals whose assistance he relies upon in carrying out his prosecutorial responsibilities; second, public confidence in the integrity of the criminal justice system could be adversely affected by the appearance of impropriety incident to a public prosecutors private representation of a criminal defendant. (But see Jones v. Baker, 406 F.2d 739 (10th Cir. 1969), where the court held there was no conflict per se if the defendant\u2019s appointed counsel in a State prosecution also served as municipal magistrate.) Cf. Hosford v. Eno, 41 S.D. 65, 168 N.W. 764 (1918), a civil case, where the court held that a city attorney, charged with the duty of prosecuting violators of city ordinances, could not accept employment to represent a defendant against a criminal charge, arising out of the same transaction, upon which was based the prosecution for the violation of a city ordinance.\nWe believe the authorities set out above, including Newberry, Darby, Gibbons and Kelly, support the proposition that a lawyer cannot act with that degree of loyalty which effective representation requires if he first appears on behalf of the prosecution and subsequently moves over to become defense counsel in connection with the issue of guilt or innocence in the same criminal proceeding. (See also People v. Cross, 30 Ill.App.3d 199, 331 N.E.2d 643.) These authorities emphasize that the personal participation by defense counsel on both sides can have no other effect than to create an improper appearance.\nNor can it be said that there was a knowing waiver by the defendant of his right to representation by counsel unimpeded by any conflict of interests. The record suggests only that defendant objected to the appointment of the Public Defender because of the absence of any meetings with counsel during his incarceration. The record fails to show that counsel disclosed to the defendant a conflict of interest. (ABA Standards Relating to the Defense Function \u00a7 3.5(A) (1971).) It is immaterial whether the conflict arises by design or by inadvertence. People v. Curry, 1 Ill.App.3d 87, 272 N.E.2d 669.\nThe defendant\u2019s other contention relates to the trial court\u2019s failure to admonish him that the sentence imposed included a mandatory parole term, in accordance with People v. Wills, 61 Ill.2d 105, 330 N.E.2d 505. This argument must be rejected inasmuch as Wills applies prospectively to guilty pleas taken subsequent to May 19, 1975, and not to defendant\u2019s plea which was entered on August 13, 1973.\nFor the reasons stated the plea of guilty is vacated and the cause remanded to the circuit court of Peoria County for further proceedings consistent with this opinion.\nReversed and remanded.\nBARRY, J., concurs.", "type": "majority", "author": "Mr. JUSTICE STOUDER" }, { "text": "Mr. JUSTICE STENGEL,\ndissenting:\nI must respectfully dissent from the majority opinion.\nThe issue in this case is whether the defendant was denied the effective assistance of counsel. Defendant asserts that he was so denied, because of an alleged conflict of interest arising from the fact that his attorney had previously served as assistant State\u2019s Attorney in preliminary matters concerning the same criminal proceeding.\nThe majority places great reliance on its interpretation of People v. Newberry, 55 Ill.2d 74, 302 N.E.2d 34 (1973). In Newberry, defendant\u2019s appointed counsel had been employed by the State\u2019s Attorney\u2019s office while defendant\u2019s case was prepared, but had no direct involvement in that case, although he served as head of the Criminal Division of the Cook County State\u2019s Attorney\u2019s office. The court affirmed the conviction, holding that under these circumstances, defendant\u2019s general allegations of constitutionally defective representation were insufficient. The majority states that the holding in Newberry \u201c* * * authorizes reversal whenever the prosecutor is personally involved in the same criminal proceeding in which he subsequently becomes defense counsel.\u201d\nI cannot agree with this reading of Newberry. While never directly addressing the issue before us here, the Supreme Court did state:\n\u201cWe do not believe the premise urged by defendant \u2014 that a disqualifying conflict of interest requiring reversal exists whenever a former assistant prosecutor, employed as such at the time of defendant\u2019s indictment, subsequently is appointed defense counsel \u2014 is either necessary or desirable. We perceive no inherent prejudice to defendant in that factual setting, and, conceivably, some advantage could inure to defendant, although it is neither claimed nor established here that defense counsel, while assistant State\u2019s Attorney, had any actual knowledge of defendant\u2019s case.\u201d 55 Ill.2d 74, 77.\nThis passage, taken with the court\u2019s holding, suggests two points overlooked by the majority. First, the conflict per se rule is not applicable where a prosecutor has turned defense counsel. Secondly, the court suggests that where the former prosecutor was actually involved in defendant\u2019s case, rather than there being prejudice, benefits could quite possibly inure to the defendant.\nI also disagree with the majority\u2019s interpretation of People v. Darby, 30 Ill.App.3d 37, 332 N.E.2d 64 (4th Dist. 1975). There a similar contention was raised where the attorney who had appeared on behalf of the People at defendant\u2019s arraignment subsequently represented defendant at the sentencing hearing as an assistant public defender. The court rejected defendant\u2019s claim that a conflict of interest existed, noting that the attorney did not have \u201c* * * any connection with the prosecution of defendant other than his routine attendance at the arraignment.\u201d The court further noted that as there then was \u201c* * * no allegiance * * * to the prosecutorial function of the State,\u201d no conflict per se existed as in Stoval and Meyers. Finally, even though in Darby the attorney had been personally involved in the same criminal proceeding in which he subsequently became defense counsel, the court there cited Newberry for the proposition that no inherent prejudice existed, contrary to the interpretation of Newberry by the majority here. I do not find persuasive the majority\u2019s assertion that Darby is distinguishable because the attorney was involved in the sentencing hearing and not a determination of guilt or innocence. It is so well established that a sentencing hearing is a critical stage of the proceedings that a citation is unnecessary. Surely a defendant is entitled to the same standard of representation at each critical stage. This is particularly evident when one considers that the sentencing hearing in Darby was a contested proceeding following a jury trial, whereas in this case, the guilty plea and sentence were negotiated. Thus, the same standard should be equally applicable in both cases.\nThere are certain facts in evidence which the majority has failed to consider in reaching its decision. Most significant is that on August 13, 1973, while submitting his plea of guilty to the charge of burglary and one charge of unlawful delivery of cannabis, the trial court admonished the defendant fully in compliance with Supreme Court Rule 402. The defendant was asked, \u201cAre you satisfied with the representation provided you so far by the public defender\u2019s office?\u201d The defendant answered \u201cYes, your honor.\u201d (Transcript at 111.) In addition, the court inquired of defendant, \u201cAre you making this plea of guilty voluntarily and as a result of your own decision?\u201d The defendant answered, \u201cYes, I am.\u201d (Transcript at 118.)\nIt appears to me that it is clear from the foregoing and from the entire record that defendant was satisfied with his attorney\u2019s services and should not now be heard to complain.\nThe cases relied upon by the majority are concerned with two situations: where the prosecutor may use confidences obtained from defendant while the prosecutor was his defense counsel and where the defendant\u2019s attorney has present commitments to others in positions antagonistic to the defendant. Neither situation exists here. The attorney had left the office of State\u2019s Attorney and was thus committed only to the defendant. Any information which the attorney had would be prosecutorial information concerning the defendant or that office\u2019s trial tactics, which could be of benefit to the defendant and certainly would not prejudice his rights. In Harrison v. United States, 387 F.2d 614 (5th Cir. 1968), defendant\u2019s attorney had previously defended the government\u2019s informer and chief witness against the defendant. The court there held that no conflict existed, and that this prior representation of the government\u2019s witness would probably help the defendant.\nTo state that the attorney\u2019s assistance here may be ineffective because of preformed notions concerning defendant\u2019s guilt due to the attorney\u2019s prior prosecutorial involvement is to ignore the fact that !\u2018by education, training and practice members of the legal profession have been inculcated with the principle of objectivity.\u201d (People v. Stoval, 40 Ill.2d 109, 115 (Justice House, dissenting).) Ignoring the fact that the attorney\u2019s prosecutorial participation in this case was only as to preliminary matters, by the time of trial, most defense attorneys have made some assessment of their client\u2019s guilt, based on their pretrial investigations. Therefore, this charge could also be made against them, and would be equally inappropriate.\nI cannot believe that lawyers appointed to represent indigents are so likely to be lacking in diligence, competence or professional honesty.\nEven if some conflict could be imagined, as the majority opinion does, defendant should be deemed to have waived the issue. The proceedings below consisted of a negotiated plea of guilty as opposed to a contested trial. The record reflects that defendant\u2019s guilty plea was voluntarily and knowingly made, with extensive participation both by defendant and by his attorney. In Martin v. United States, 256 F.2d 345 (5th Cir. 1958), cert. denied, 358 U.S. 921, 3 L.Ed.2d 240, 79 S.Ct. 294, defendant challenged his conviction following a guilty plea, contending an alleged conflict of interest arising from his appointed counsel\u2019s representation of other codefendants. After reviewing the record, the court stated at page 349: \u201c[S]ince * * * the guilty plea was voluntary the appellant must be said to have waived the conflict of interest theory.\u201d See also People v. Richardson, 16 Ill.App.3d 830, 306 N.E.2d 886 (3d Dist. 1974).\nThe United States Supreme Court, in Tollett v. Henderson, 411 U.S. 258, 267, 36 L.Ed.2d 235, 243, 93 S.Ct. 1602, 1608 (1973), a case involving a guilty plea on the advice of counsel who had failed to make inquiry into the composition of the grand jury, held, as follows:\n\u201c[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann [v. Richardson, 397 U.S. 759, 90 S.Ct. 1441 at 1449, 25 L.Ed.2d 763 (1970)].\"\nIt is interesting to note that the majority opinion takes the opposite view of the American Bar Association Standards for Criminal Justice relating to The Prosecution Function and The Defense Function where they state, on the subject of possible conflict, at page 216 (1971):\n\u201cIn all of these situations the controlling consideration is the avoidance of any possibility of division or dilution of loyalties # # #\n[T]here are advantages to the operation of the adversary system if lawyers can avoid being stereotyped in their roles. See THE PROSECUTION FUNCTION, Introduction, supra, at 20-21. Obviously, in our system of institutionalized prosecution offices, unlike England, for example, it is difficult if not impossible for prosecutors to appear in the defense role. More feasible is the interchange of roles by having experienced defense counsel appointed as special prosecutors from time to time. The long range benefits of interchange, however, are such that lawyers who have been trained in prosecution offices should be encouraged to devote some period of their professional careers in defense work, whether privately or as a public defender, after they have left prosecution offices. Correspondingly, public defender staff members should be encouraged to move into prosecution offices.\u201d (Emphasis added.)\nIn the absence of a clear and specific showing of prejudice, the issue here should be controlled by the criteria governing constitutionally effective assistance of counsel. The record here negates the appellant\u2019s claim on this point. On the contrary, I believe the appellant was helped rather than harmed by his counsel\u2019s former experience as a prosecutor in light of his counsel\u2019s efforts.\nIn my opinion the conviction should be affirmed.", "type": "dissent", "author": "Mr. JUSTICE STENGEL," } ], "attorneys": [ "James Geis and Robert Agostinelli, both of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "Michael M. Mihm, State\u2019s Attorney, of Peoria (James O. Christy, Assistant State\u2019s Attorney, of counsel), for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. James Kester, Defendant-Appellant.\n(No. 74-212;\nThird District\nNovember 10, 1975.\nSTENGEL, J., dissenting.\nJames Geis and Robert Agostinelli, both of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nMichael M. Mihm, State\u2019s Attorney, of Peoria (James O. Christy, Assistant State\u2019s Attorney, of counsel), for the People." }, "file_name": "0262-01", "first_page_order": 290, "last_page_order": 301 }