{ "id": 3322645, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HUGH EDWARD WALTON, Defendant-Appellant", "name_abbreviation": "People v. Walton", "decision_date": "1978-12-15", "docket_number": "No. 14808", "first_page": "913", "last_page": "917", "citations": [ { "type": "official", "cite": "66 Ill. App. 3d 913" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "304 N.E.2d 153", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "15 Ill. App. 3d 136", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2462478 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/15/0136-01" ] }, { "cite": "230 N.E.2d 169", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "170" } ], "opinion_index": 0 }, { "cite": "37 Ill. 2d 622", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2865991 ], "weight": 2, "pin_cites": [ { "page": "624" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0622-01" ] }, { "cite": "254 N.E.2d 190", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "118 Ill. App. 2d 324", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1585459 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/118/0324-01" ] }, { "cite": "364 N.E.2d 67", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "67 Ill. 2d 127", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5812309 ], "opinion_index": 1, "case_paths": [ "/ill-2d/67/0127-01" ] }, { "cite": "361 N.E.2d 569", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "66 Ill. 2d 162", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5464500 ], "opinion_index": 1, "case_paths": [ "/ill-2d/66/0162-01" ] }, { "cite": "239 N.E.2d 441", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "40 Ill. 2d 109", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2856293 ], "opinion_index": 1, "case_paths": [ "/ill-2d/40/0109-01" ] }, { "cite": "230 N.E.2d 169", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "170" } ], "opinion_index": 1 }, { "cite": "37 Ill. 2d 622", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2865991 ], "pin_cites": [ { "page": "624" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/37/0622-01" ] } ], "analysis": { "cardinality": 542, "char_count": 9635, "ocr_confidence": 0.9, "pagerank": { "raw": 1.0684052321477247e-07, "percentile": 0.5591430233963447 }, "sha256": "187abc234495326057b3d842f1f46fedfc42ebf1334cb80242992f87da712682", "simhash": "1:824ad5c4ff6795b2", "word_count": 1551 }, "last_updated": "2023-07-14T21:04:20.946597+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. HUGH EDWARD WALTON, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE CRAVEN\ndelivered the opinion of the court;\nThe defendant, Hugh Edward Walton, was charged with the offense of murder in connection with the shooting death of James Tribbett on September 22, 1967. He was tried for that offense at a trial that commenced in May 1968, resulting in a conviction. The defendant was sentenced to a term of 16 to 40 years\u2019 imprisonment.\nOn direct appeal, this court affirmed the conviction but remanded for correction of an error with reference to the date of commencement of the consecutive sentence (People v. Walton (1969), 118 Ill. App. 2d 324, 254 N.E.2d 190). In the original trial and upon the direct appeal, the defendant was represented by the then public defender of McLean County. In 1972, the defendant initiated, on a pro se basis, post-conviction proceedings, and ultimately the circuit court of McLean County appointed the then public defender of that county to represent the defendant in the post-conviction proceedings.\nA 1975 petition for post-conviction relief contains allegations that the defendant was denied his constitutional right to effective assistance of counsel at. trial, and, indeed, upon the direct appeal. Because of the allegation that appointed counsel failed to raise circumstances for consideration by the trial court which may have warranted his conviction of the lesser offense of voluntary manslaughter, in general, the petition constitutes a substantial attack upon the representation afforded at trial. Since counsel on the direct appeal was the same as trial counsel, competency of the representation received at trial was not an issue on direct appeal.\nIn this post-conviction proceedings, the trial court considered the record of the original trial, and, in addition, heard and considered the testimony of Patricia Huffman and William Hines. Patricia Huffman had been a State\u2019s witness at the earlier trial. In the post-conviction proceeding, she testified that the decedent Tribbett had raped her sometime in the afternoon on the date of the killing and that she had spoken to the State\u2019s Attorney\u2019s office about the rape prior to the initial trial but she did not recall discussing the incident with the public defender. William Hines, who had likewise been a State\u2019s witness in the initial trial, also testified in the post-conviction proceedings.\nAside from the merits of the post-conviction proceedings, defendant now contends that the trial court committed reversible error and denied him the unfettered assistance of counsel in support of his post-conviction petition when it appointed the public defender of McLean County to pursue the post-conviction proceeding. This contention is based upon the fact that the primary allegation of violation of constitutional rights was that the public defender of McLean County had been inadequate and ineffective in assisting the defendant in the initial proceeding. We are persuaded that the trial court should have appointed counsel other than the public defender.\nIn People v. Smith (1967), 37 Ill. 2d 622, 230 N.E.2d 169, the Illinois Supreme Court, while recognizing that there is no absolute right to appointment of non-public-defender counsel in post-conviction proceedings, noted:\n\u201cWe have previously recognized the disadvantages, both to petitioner and the public defender\u2019s office, in having a representative from that office present petitioner\u2019s cause when his petition is based in part upon charges of incompetent representation afforded him at trial by the public defender. (.People v. Ashley.) This circumstance clearly confronts the public defender\u2019s office with a conflict of interest since, on one hand, its natural inclination would be to protect its reputation by defending against the charges of incompetency while, on the other hand, its duty as an advocate is to aid petitioner in establishing the veracity of these charges. This conflict-of-interest situation should be avoided and the petitioner be appointed counsel other than the public defender to represent him at a new hearing on his petition.\u201d 37 Ill. 2d 622, 624, 230 N.E.2d 169, 170.\nIn People v. Slifer (1973), 15 Ill. App. 3d 136, 304 N.E.2d 153, we were confronted with a case in which the public defender appointed for the post-conviction proceeding was sought to be removed by the defendant for the reason that the defendant had attacked the competency of the prior representation of the same public defender office. In Slifer, we found no error and distinguished Smith. We did so upon the factual basis that the defendant had waived any objection to the representation upon learning that a different attorney was then the county public defender. The waiver found in Slifer is absent in this case and this case is not distinguishable from Smith. The disposition is commanded by Smith.\nAccordingly, the judgment of the circuit court of McLean County denying post-conviction relief is vacated and this cause is remanded to that court with directions to appoint counsel for the defendant other than the public defender, and for further proceedings on the post-conviction petition.\nReversed and remanded with directions.\nGREEN, J., concurs.", "type": "majority", "author": "Mr. JUSTICE CRAVEN" }, { "text": "Mr. JUSTICE WEBBER,\ndissenting:\nI respectfully dissent and vehemently object to what in my opinion is an unwarranted and unwise extension of the per se conflict-of-interest rule. That rule, unless carefully controlled, will become nothing less than a Declaration of Indulgences to every criminal defendant who is dissatisfied with the result of his trial and appeal and seeks to fasten the blame upon his lawyer.\nIn Smith, cited in the plurality opinion, the supreme court did nothing more than say that the trial court should have sustained the defendant\u2019s objection. In fact, the court was careful to limit the decision to \u201cthe circumstances present here.\u201d (Smith, 37 Ill. 2d 622,624,230 N.E.2d 169, 170.) In Slifer, distinguished in the plurality opinion, this court pointed out that the defendant first objected to the public defender and thereafter acquiesced in the appointment, in effect, withdrawing the objection.\nThe cardinal premise, in my view, of both Smith and Slifer is that there is a burden on the defendant to take positive action of some kind, presumably an objection, at the time of appointment; he cannot in all fairness await the outcome and then lodge a retroactive plea of per se conflict.\nThe proposition was put succinctly more than 300 years ago by John Locke in his Second Tract on Government:\n\u201cAs to the obligation of subjects, it must be understood that the power of the magistrate is on the one hand regulatory and on the other coercive, to which corresponds a double obligation, (i) the obligation to act, (ii) the obligation, if I may put it thus, to suffer; or, as it is commonly put, an active and a passive obedience.\u201d\nThe record in the case at bar is barren of any objection, or other action, by the defendant to indicate displeasure with his counsel, and this is true even though there was a full evidentiary hearing on the petition with the defendant presumably present. In this respect, it is quite unlike a hearing on a motion to dismiss which is generally held in the absence of the defendant and with the consequence that he has no opportunity to object.\nMoreover, the record is equally barren of any evidence that the successor public defender either (1) rejected out of hand all of the policies and actions of his predecessor, or (2) was ready to defend to the death each and every one of them. To say that one attorney will blindly adopt everything that another did is an assumption that flies in the face of human experience and the nature of lawyers. If it were true, Chief Justice Warren would simply have parrotted Chief Justice Hughes.\nOnce the principle of the majority is accepted (i.e., that protecting the reputation of the office is of more importance than representing the client), the degrees admit of no limit. Any former public defender, any former State\u2019s Attorney or any former assistant of either would be barred from areas of criminal practice. And what of a sitting judge who may have been a defender or prosecutor in the past? Will he be disqualified from hearing post-conviction petitions because of his former association?\nIn the most frequently cited cases on the question of conflict of interest, that interest was apparent and real. (E.g., People v. Stoval (1968), 40 Ill. 2d 109, 239 N.E.2d 441 (attorney representing both defendant and victim); People v. Kester (1977), 66 Ill. 2d 162, 361 N.E.2d 569 (attorney acting as prosecutor and defender in the same case); People v. Coslet (1977), 67 Ill. 2d 127, 364 N.E.2d 67 (attorney representing both defendant and estate of victim-husband).) The purported conflict in the case at bar is far removed from these situations.\nIn the absence of any objection and in the absence of any evidentiary record of conflict, I would not create one based on speculation. I would affirm the trial court.\nIn the Lockean context, \u201cmagistrate\u201d refers either to the sovereign or to parliament \u2014 in short, the governing authority. However, the principle remains the same.", "type": "dissent", "author": "Mr. JUSTICE WEBBER," } ], "attorneys": [ "Richard J. Wilson and Donald T. McDougall, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Ronald Dozier, State\u2019s Attorney, of Bloomington (Robert C. Perry and Robert J. Biderman, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HUGH EDWARD WALTON, Defendant-Appellant.\nFourth District\nNo. 14808\nOpinion filed December 15, 1978.\nRehearing denied January 10, 1979.\nWEBBER, J., dissenting.\nRichard J. Wilson and Donald T. McDougall, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nRonald Dozier, State\u2019s Attorney, of Bloomington (Robert C. Perry and Robert J. Biderman, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0913-01", "first_page_order": 935, "last_page_order": 939 }