{ "id": 5573938, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID FRIEND, Defendant-Appellant", "name_abbreviation": "People v. Friend", "decision_date": "2003-07-08", "docket_number": "No. 2\u201401\u20140101", "first_page": "139", "last_page": "143", "citations": [ { "type": "official", "cite": "341 Ill. App. 3d 139" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "171 Ill. 2d 158", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57337 ], "year": 1996, "pin_cites": [ { "page": "199-200" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/171/0158-01" ] }, { "cite": "194 Ill. 2d 186", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1096308 ], "year": 2000, "pin_cites": [ { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/194/0186-01" ] }, { "cite": "207 Ill. 2d 68", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 974982 ], "weight": 4, "year": 2003, "pin_cites": [ { "page": "78" }, { "page": "78" }, { "page": "79" }, { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/207/0068-01" ] }, { "cite": "325 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570884 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "5" }, { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/0001-01" ] }, { "cite": "86 Ill. App. 3d 738", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3183823 ], "year": 1980, "pin_cites": [ { "page": "741-42" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/86/0738-01" ] }, { "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": 0, "case_paths": [ "/us/411/0258-01" ] }, { "cite": "46 Ill. App. 3d 536", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2972350 ], "year": 1977, "pin_cites": [ { "page": "541" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/46/0536-01" ] }, { "cite": "88 Ill. App. 3d 821", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3176452 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "823" }, { "page": "823" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/88/0821-01" ] }, { "cite": "134 Ill. App. 3d 123", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3637812 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "131" }, { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/134/0123-01" ] } ], "analysis": { "cardinality": 569, "char_count": 10882, "ocr_confidence": 0.759, "pagerank": { "raw": 8.95887501656537e-08, "percentile": 0.5017526118318095 }, "sha256": "d96ebaad7d4f4d3c880e54a5424ed4bf161c47221ae628c776e7d3f78fb2b031", "simhash": "1:c9acf16976cc2e9d", "word_count": 1703 }, "last_updated": "2023-07-14T21:38:13.673521+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. DAVID FRIEND, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BYRNE\ndelivered the opinion of the court:\nDefendant, David Friend, pleaded guilty to possessing a controlled substance with intent to deliver (720 ILCS 570/401(a)(l)(A) (West 1998)). The trial court denied defendant\u2019s motion to withdraw the plea and defendant appeals, arguing that his attorney labored under a conflict of interest during the postplea proceedings because defendant had questioned his competency.\nDefendant was charged with possession of a controlled substance with intent to deliver and possession of cannabis. During pretrial proceedings, he was represented by three different attorneys. While represented by the last of these, Manos Kawadias, defendant pleaded guilty to possession with intent to deliver. There was no agreement about a sentence. We reverse and remand.\nBefore sentencing, Kawadias filed a motion to withdraw defendant\u2019s guilty plea. The motion alleged, inter alia, that defendant had been \u201cforced into a plea of guilty.\u201d At a hearing, Kawadias explained that he filed the motion based on defendant\u2019s statements in the presentence report. There, defendant stated that he had been \u201cblackmailed\u201d into pleading guilty and questioned the quality of Kavvadias\u2019s representation.\nKawadias referred the court to a section of the presentence report entitled \u201cDefendant\u2019s Attitude Toward Offense,\u201d containing defendant\u2019s verbatim statements, and invited the court to question defendant. The court replied that the motion lacked any specific allegations to show that the plea was coerced. The court denied the motion, finding no reason to believe that defendant \u201cwas operating under any type of misapprehension of law or fact.\u201d The court focused on the last paragraph of defendant\u2019s statement in which he said, \u201cI plead guilty hoping to get lienecy [sic].\u201d The court observed that not getting a lenient sentence was not a sufficient reason to withdraw a plea.\nTwo weeks later, the court sentenced defendant to 10 years\u2019 imprisonment. Defendant then renewed his motion to withdraw the plea. The court again denied the motion and defendant timely appeals.\nDefendant contends that he should receive a new hearing on his motion because Kawadias should have withdrawn as his counsel when he realized that defendant was criticizing his performance. Defendant cites People v. Willis, 134 Ill. App. 3d 123, 131 (1985), People v. Fields, 88 Ill. App. 3d 821, 823 (1980), and People v. Norris, 46 Ill. App. 3d 536, 541 (1977). Those cases held that an attorney should move to withdraw when the client criticizes his or her representation.\nIn Fields, the defendant complained after his bench trial that his lawyer failed to call certain witnesses, but the same attorney continued to represent him during posttrial proceedings. Recognizing that the attorney labored under a conflict of interest, the court ordered a new hearing on the defendant\u2019s posttrial motion. Fields, 88 Ill. App. 3d at 823. In Willis, this court in remanding the cause for a new hearing observed that an attorney forced to argue his own ineffectiveness \u201cmust be seen as laboring under divided loyalties.\u201d Willis, 134 Ill. App. 3d at 131.\nThis case is similar to Willis, Fields, and Norris in that Kawadias presented a motion to withdraw the guilty plea that incorporated defendant\u2019s allegations of Kawadias\u2019s ineffective representation. Kavvadias should have moved to withdraw when he realized that defendant was questioning his professional judgment.\nThe State does not attempt to distinguish these cases, but responds with a three-pronged attack. First, the State argues that defendant\u2019s guilty plea waived his contentions. Second, it contends that, regardless of Kawadias\u2019s conflict of interest, the trial court independently evaluated defendant\u2019s allegations of ineffective representation. Third, the State maintains that the court properly found those allegations to be without merit.\nWe can briefly dispose of the State\u2019s first argument. According to the State, a guilty plea waives any claim of a deprivation of constitutional rights that occurred prior to the guilty plea. See Tollett v. Henderson, 411 U.S. 258, 267, 36 L. Ed. 2d 235, 243, 93 S. Ct. 1602, 1608 (1973). This includes allegations that defense counsel labored under a conflict of interest. People v. Canales, 86 Ill. App. 3d 738, 741-42 (1980). These cases do not apply here for the simple reason that the claimed conflict of interest arose after defendant entered his plea. Defendant claims that Kawadias had a conflict of interest in arguing the postplea motion, and in this appeal he merely seeks a new hearing on that motion. Defendant\u2019s plea did not waive his right to assert a constitutional deprivation that occurred after the plea was entered.\nNext, the State asserts that the trial court independently evaluated defendant\u2019s allegations, thus rendering moot any conflict of interest of defense counsel. The State cites cases holding that where a defendant raises pro se allegations of ineffective assistance, the court should conduct a preliminary investigation to determine whether the charges have arguable merit. If the court finds that the claims lack merit or pertain only to trial strategy, the court may deny the motion without appointing new counsel. See People v. Cabrales, 325 Ill. App. 3d 1, 5 (2001). The State contends that this is essentially what happened here. We disagree.\nInitially, the State questions whether these cases apply because it was Kawadias, rather than defendant, who brought defendant\u2019s allegations to the court\u2019s attention. We find this a distinction without a difference. It is clear that Kawadias was little more than a conduit to convey defendant\u2019s statements to the trial court; he neither physically incorporated the statements into his motion nor argued their merits to the court. In practical terms, the court was faced with nothing more than defendant\u2019s pro se allegations.\nIt is clear that the trial court did not adequately investigate defendant\u2019s allegations. The supreme court recently reiterated that when a defendant presents a posttrial ineffective assistance of counsel claim, the trial court should first examine the claim\u2019s factual basis and, if the allegations show the possible neglect of the case, appoint new counsel. People v. Moore, 207 Ill. 2d 68, 78 (2003); see also People v. Chapman, 194 Ill. 2d 186, 230 (2000); People v. Munson, 171 Ill. 2d 158, 199-200 (1996). The court explained the reasons for the procedure as follows:\n\u201cThe new counsel would then represent the defendant at the hearing on the defendant\u2019s pro se claim of ineffective assistance. [Citations.] The appointed counsel can independently evaluate the defendant\u2019s claim and would avoid the conflict of interest that trial counsel would experience if trial counsel had to justify his or her actions contrary to defendant\u2019s position.\u201d Moore, 207 Ill. 2d at 78.\nIn Moore, the trial court did not conduct any inquiry into the defendant\u2019s allegations. Apparently misunderstanding the basis of the defendant\u2019s motion, the court believed that it could grant the requested relief by appointing the appellate defender to represent the defendant on appeal. Moore, 207 Ill. 2d at 79. The supreme court emphasized that the trial court had to conduct some type of inquiry and remanded the cause for that purpose. Moore, 207 Ill. 2d at 79.\nHere, too, the trial court conducted no inquiry into defendant\u2019s allegations of ineffective assistance of counsel. The court did not discuss the substance of the claims with Kawadias and did not question defendant about his claims although he was available for that purpose. Instead, focusing on one sentence from defendant\u2019s statement, the court concluded that defendant pleaded guilty in the hope of obtaining leniency, which was not a valid reason to withdraw the plea. This was not the type of inquiry contemplated by Moore and its progenitors.\nThe State also contends, however, that any error that did occur was harmless because defendant\u2019s allegations clearly lack merit. Again, we disagree.\nThe State focuses on defendant\u2019s statements that Kawadias \u201cBlackmailed me into pleading guilty with me getting more time if I go to trail [sic]\u201d and \u201cI plead guilty hoping to get lienecy [sic].\u201d The State takes these statements to mean that defendant, facing the inevitably difficult choices of one charged with serious crimes, followed his lawyer\u2019s advice and pleaded guilty, hoping to obtain a favorable sentence. Then, upon being disappointed, defendant blamed his lawyer for the difficult choices he faced.\nIf defendant\u2019s entire statement consisted of those two sentences, we might be inclined to agree with the State\u2019s interpretation. However, the complete statement, which occupies five pages of the presentence report, asserts that Kawadias charged him $10,000 for filing motions but did not file any. After paying three lawyers $26,000, much of which was borrowed from relatives, defendant \u201chad no choice but to plead guilty under those coniditons [sic].\u201d\nThe allegations that defendant paid his lawyer for motions that were never filed, leaving him without funds with which to fight the case further, deserve further scrutiny. If true, they would tend to show that defendant pleaded guilty because he simply ran out of money to defend the case, which in turn resulted from paying his lawyers for services that they never performed. Under these circumstances, we cannot say that the trial court\u2019s failure to investigate these allegations was harmless.\nWe reached a similar result in C\u00f3brales. There, as here, the defendant moved to withdraw his plea, alleging that he received ineffective representation. We held that the court\u2019s failure to investigate was not harmless. Many of the alleged instances of ineffectiveness occurred outside the trial court\u2019s presence. Thus, the court could not have evaluated the defendant\u2019s claims solely on the basis of what it had observed during the proceedings. Cabrales, 325 Ill. App. 3d at 6. Here, too, defendant\u2019s allegations about his relationship with Kawadias refer to incidents that took place outside the trial court\u2019s presence. The court did not attempt to question either Kawadias or defendant about the allegations. We cannot say that the trial court properly rejected defendant\u2019s claims without any investigation.\nThe judgment of the circuit court of Du Page County is reversed, and the cause is remanded for further proceedings.\nReversed and remanded.\nBOWMAN and GEOMETER, JJ, concur.", "type": "majority", "author": "JUSTICE BYRNE" } ], "attorneys": [ "G. Joseph Weller, of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Joseph E. Birkett, State\u2019s Attorney, of Wheaton (Stephen E. Norris and Rebecca E. McCormick, 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. DAVID FRIEND, Defendant-Appellant.\nSecond District\nNo. 2 \u2014 01\u20140101\nOpinion filed July 8, 2003.\nG. Joseph Weller, of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nJoseph E. Birkett, State\u2019s Attorney, of Wheaton (Stephen E. Norris and Rebecca E. McCormick, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0139-01", "first_page_order": 157, "last_page_order": 161 }