{ "id": 3261651, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM J. HORTON, Defendant-Appellant", "name_abbreviation": "People v. Horton", "decision_date": "1979-06-06", "docket_number": "No. 78-622", "first_page": "9", "last_page": "16", "citations": [ { "type": "official", "cite": "73 Ill. App. 3d 9" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "374 N.E.2d 822", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "58 Ill. App. 3d 487", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5624675 ], "pin_cites": [ { "page": "490" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/58/0487-01" ] }, { "cite": "387 N.E.2d 688", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "75 Ill. 2d 180", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2989804 ], "opinion_index": 0, "case_paths": [ "/ill-2d/75/0180-01" ] }, { "cite": "588 F.2d 436", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 832165 ], "weight": 3, "pin_cites": [ { "page": "439-40" } ], "opinion_index": 0, "case_paths": [ "/f2d/588/0436-01" ] }, { "cite": "517 F.2d 272", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1127727 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/f2d/517/0272-01" ] }, { "cite": "364 N.E.2d 67", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "67 Ill. 2d 127", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5812309 ], "weight": 2, "pin_cites": [ { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0127-01" ] }, { "cite": "58 S. Ct. 610", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1977, "opinion_index": 0 }, { "cite": "82 L. Ed. 1089", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1977, "opinion_index": 0 }, { "cite": "304 U.S. 458", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 10805 ], "year": 1977, "pin_cites": [ { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/us/304/0458-01" ] }, { "cite": "377 N.E.2d 553", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "61 Ill. App. 3d 7", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3347750 ], "pin_cites": [ { "page": "9" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/61/0007-01" ] }, { "cite": "361 N.E.2d 569", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. 2d 162", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5464500 ], "weight": 4, "pin_cites": [ { "page": "167-68" }, { "page": "168" }, { "page": "168" }, { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0162-01" ] }, { "cite": "239 N.E.2d 441", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "40 Ill. 2d 109", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2856293 ], "weight": 3, "pin_cites": [ { "page": "113-14" }, { "page": "114" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/40/0109-01" ] }, { "cite": "272 N.E.2d 25", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "48 Ill. 2d 500", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2907689 ], "pin_cites": [ { "page": "503-04" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/48/0500-01" ] }, { "cite": "65 Ill. 2d 413", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5435369 ], "opinion_index": 0, "case_paths": [ "/ill-2d/65/0413-01" ] }, { "cite": "35 Ill. App. 3d 208", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5307082 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/35/0208-01" ] } ], "analysis": { "cardinality": 665, "char_count": 14943, "ocr_confidence": 0.891, "pagerank": { "raw": 5.232840265502546e-08, "percentile": 0.3298358321276646 }, "sha256": "833f66fc99255bc51b8c308cfa43e1c9c1e2387f09b5ce8d39858402b45577b2", "simhash": "1:8baaf74173668c5a", "word_count": 2428 }, "last_updated": "2023-07-14T21:56:34.335432+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. WILLIAM J. HORTON, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE SIMON\ndelivered the opinion of the court:\nThe defendant, William J. Horton, convicted of armed robbery and sentenced to a term of 20 to 50 years, appeals from a denial following an evidentiary hearing of his petition for post-conviction relief. His conviction was affirmed on direct appeal by the appeUate court (35 Ill. App. 3d 208) and the supreme court (65 Ill. 2d 413). Following affirmance by the appeUate court, the defendant filed a pro se petition for post-conviction reUef. (Ill. Rev. Stat. 1975, ch. 38, par. 122\u20141 et seq.) This petition and a subsequent amended petition aUeged that defendant\u2019s trial counsel had a conflict of interest since he had participated in the preliminary stages of the case as an assistant State\u2019s Attorney, and consequently, the defendant was denied effective assistance of counsel.\nIt is undisputed that the trial court appointed private counsel to represent the defendant. Because the appointed attorney was unable to be present for a court appearance in this case, his partner was in court in his place. The attorney who was present filed the appointed attorney\u2019s appearance and a petition for discovery on behalf of the defendant. Several months later when the defendant\u2019s case was called for trial, the appointed attorney was engaged elsewhere, and his partner again appeared in his place, and represented the defendant throughout his trial.\nThe defendant\u2019s trial attorney had formerly been employed as an assistant State\u2019s Attorney. In that capacity, he had been in the courtroom when the defendant\u2019s case was assigned to a trial judge and on several dates when the defendant\u2019s case was on the court call. Also, he had prepared the State\u2019s answer to discovery in this case and his name appeared upon the answer.\nIn view of the manner in which we dispose of this appeal, we shall accept the version of the facts presented by the State and found by the judge who presided at both defendant\u2019s trial and the post-conviction proceedings, discounting the version urged upon us by the defendant. The defendant denied knowing until after his trial was concluded that his trial attorney had previously represented the State in the same case or that the latter had been an assistant State\u2019s Attorney assigned to this case. The attorney, however, testified as follows: When he first appeared on behalf of the appointed attorney, the defendant acknowledged knowing who he was and recognizing him from his previous court appearances as a State\u2019s Attorney in the case. The attorney told the defendant he had previously acted on behalf of the State in the case and was familiar with the facts. The attorney also testified that at the time of trial he explained to the defendant that the court-appointed attorney was unavailable. His testimony was that the defendant again said he remembered him from his participation in the case as an assistant State\u2019s Attorney, and that the defendant wished to go to trial immediately.\nFrom the evidence presented at the post-conviction hearing, the judge found that the defendant knew prior to trial of his attorney\u2019s preliminary involvement in the case as an assistant State\u2019s Attorney, and nevertheless insisted on going to trial immediately with that attorney acting as his trial counsel.\nI\nThe State initially contends that the defendant is precluded from raising the issue of his attorney\u2019s conflict because he failed to present it on direct appeal. The attorney employed by the State Appellate Defender who handled defendant\u2019s direct appeal testified at the post-conviction hearing that he knew that the defendant\u2019s trial counsel had previously participated in the case on behalf of the State, but had not raised the matter on direct appeal. This is undisputed. Defendant\u2019s claim that he wrote to appellate counsel about his trial counsel\u2019s prior involvement in the case when he discovered it while reviewing a copy of the trial record during the pendency of the direct appeal is also undisputed. Under these circumstances, fundamental fairness requires consideration of defendant\u2019s contention which, for some unexplained reason, the defendant\u2019s appellate counsel failed to raise during the direct appeal even though the defendant set forth his grievance in his pro se petition before that appeal was heard by the supreme court. Because the defendant\u2019s manifest effort to call his trial attorney\u2019s conflict of interest to the attention of the reviewing court was thwarted by his appointed appellate counsel, precluding consideration of the issue the defendant now raises is inconsistent with the spirit and ultimate purpose of the Post-Conviction Hearing Act. See People v. Frank (1971), 48 Ill. 2d 500, 503-04, 272 N.E.2d 25.\nII\nNext, the State contends that unlike the inconsistent relationship between an accused and his counsel condemned in People v. Stoval (1968), 40 Ill. 2d 109, 239 N.E.2d 441, the defendant\u2019s trial attorney in this case had no concurrent conflict of interest while he represented the defendant. He had left the State\u2019s Attorney\u2019s office to become a full-time private attorney. The State concludes this argument by asserting that there was no evidence that the attorney\u2019s minimal contact with the defendant\u2019s case in preliminary proceedings while he was an assistant State\u2019s Attorney in any way affected his vigorous and competent representation of the defendant at trial.\nThe answer to the State\u2019s argument is supplied by People v. Kester (1977), 66 Ill. 2d 162, 167-68, 361 N.E.2d 569, where the court rejected an identical contention in a factual setting similar to that presented in this case. In Kester, the representation of two clients with conflicting interests was also not concurrent. There, as here, the State argued that the former assistant State\u2019s Attorney turned defense counsel participated in the prosecution of defendant\u2019s case only in routine, preliminary matters involving minimum contacts of a \u201chighly formalistic\u201d nature. The court\u2019s response in Kester was:\n\u201c# \u00ab * where counsel has repeatedly appeared on behalf of the State in the particular case in which he is now representing defendant, we are not persuaded that inquiry into the precise nature and extent of his personal involvement is either necessary or desirable. While there has been no showing that, as assistant public defender, counsel did not represent the defendant in a competent and dedicated manner with complete loyalty to him, we conclude that a potential conflict was present, and, in accordance with Stoval, we hold that it was unnecessary for the defendant to show that actual prejudice resulted therefrom.\u201d Kester, 66 Ill. 2d 162, 168.\nIll\nEven when defense counsel is in a conflict of interest position because of his previous involvement in the case, a defendant who knows of the prior association may accept counsel\u2019s assistance, thereby waiving any claim that he was deprived of his sixth amendment right to counsel. (Kester; People v. Schmidt (1978), 61 Ill. App. 3d 7, 9, 377 N.E.2d 553.) Courts, however, are reluctant to hold that an accused has waived fundamental constitutional rights, and indulge in every reasonable presumption to avoid such a waiver. They apply the rule that an \u201cintentional relinquishment or abandonment of a known right or privilege\u201d is required to constitute a waiver resulting in the loss of fundamental rights. (Johnson v. Zerbst (1938), 304 U.S. 458, 464, 82 L. Ed. 1089, 58 S. Ct. 610; Stoval.) People v. Coslet (1977), 67 Ill. 2d 127, 364 N.E.2d 67, Kester, and Stoval all reflect an insistence by our supreme court that the courts of this State must take care to avoid the appearance of impropriety and of conflict of interest that arises from the court appointment of counsel to represent a defendant where that counsel previously participated in the same case as a prosecutor.\nThe State contends that the defendant, by electing to proceed to trial with knowledge that his attorney had previously acted as a prosecutor in his case, waived objection to his counsel\u2019s conflict of interest. The defendant\u2019s position, on the other hand, is that the only way the law permits a defendant to waive a conflict of interest affecting his attorney is by a statement on the record in open court after proper admonitions by the trial judge. The defendant\u2019s argument relies on the following statement by the Kester court:\n\u201cThe record does not, in our judgment, establish that defendant knowingly waived his right to representation by court-appointed counsel who was free from any conflict of interest. It does not appear that the defendant was in any manner admonished as to the significance of the potential conflict # * Kester, 66 Ill. 2d 162, 168.\nIn Stoval, the trial judge was aware of the potential conflict, and made some, although an inadequate, effort to explain the problem of counsel\u2019s other association to the defendant. The supreme court held that notwithstanding that effort, the defendant was not adequately informed of the nature and significance of the conflict of interest and did not understand how a conflict would affect, sometimes subtly, the representation of one accused of crime. Stoval, 40 Ill. 2d 109, 113-14.\nShowing in the record any conflict in which defense counsel in a criminal case may find himself, and having the trial judge fully admonish the defendant regarding the consequences the conflict might have on the defendant\u2019s representation as well as the right to obtain other counsel are obviously the most prudent procedures to avoid later criticism or appearances of impropriety. We, however, do not read Stoval or Kester or any other Illinois case to mandate that this is the only way to effect a valid waiver. The Fifth Circuit Court of Appeals has in two opinions, United States v. Garcia (5th Cir. 1975), 517 F.2d 272, and Zuck v. Alabama (5th Cir. 1979), 588 F.2d 436, announced that a defendant in a criminal case in the Federal forum cannot knowingly and intelligently give up his right to conflict-free counsel unless the district court judge affirmatively participates in the waiver decision. Those opinions require the district court judge to admonish the defendant regarding the following matters: the existence of a conflict of interest; the consequences to the defense that continuing with counsel in a position of conflict could have; and the right of the defendant to ask for other counsel. The judge is also expected to ascertain that the defendant comprehends these admonitions.\nIt is not necessary in disposing of the defendant\u2019s contention in this case, to determine whether the formal procedure and admonishments in open court explained in Garcia and Zuck should be required in Illinois. In the evidentiary hearing on the post-conviction petition, the defendant\u2019s trial counsel testified only that he and the defendant had discussed his prior representation of the State in this case, and that the defendant, aware that he had formerly acted as a prosecutor in the case, still wished to proceed to trial. Neither the attorney nor the State has suggested that the defendant and his trial attorney discussed the nature of a conflict of interest, how a conflict might affect the representation that the defendant would receive or the right the defendant had to ask for other counsel if he was dissatisfied with having his former prosecutor as his trial attorney.\nWithout regard to whether a waiver of counsel\u2019s conflict in a criminal case can be valid if not in open court, the record does not show that defendant had sufficient information and understanding to make a knowing and intelligent decision. (Compare People v. Johnson (1979), 75 Ill. 2d 180, 387 N.E.2d 688.) The record shows only that the defendant knew before his trial of his counsel\u2019s prior representation of the State. It fails to show that his trial attorney informed the defendant of any of the consequences which might occur because of counsel\u2019s past association. Nor does the record indicate that the attorney made the defendant aware of any alternatives available to him. The State argues that it may be inferred from the defendant\u2019s failure to object and his willingness to go to trial that he not only acquiesced in his counsel\u2019s conflict, but believed that some possible benefit would inure to him from the attorney\u2019s knowledge of the case or previous experience as a prosecutor. However, in view of the subtleties frequently mentioned by reviewing courts in determining whether an attorney has a conflict of interest (for example, see Coslet, 67 Ill. 2d 127, 135; Kester, 66 Ill. 2d 162, 167; Stoval, 40 Ill. 2d 109, 114; Zuck, 588 F.2d 436, 439-40), and the sharp disagreement in this very case between the State and the defendant as to whether the attorney actually was in an inconsistent position, is it not unrealistic to expect that a defendant, untrained in the law, will understand, without guidance, what a potential conflict of interest is and how it may affect his fate? How can it reasonably be inferred that the defendant knew enough about the significance of the potential conflict of his attorney to complain to the court about it? For this reason, we are forced to conclude, although reluctantly, that notwithstanding the affirmance of the defendant\u2019s conviction by the supreme court on direct appeal, the defendant was denied his sixth amendment right to effective assistance of counsel. Zuck v. Alabama (5th Cir. 1979), 588 F.2d 436.\nIV\nAnother aspect of this proceeding requires consideration. In People v. Hall (1978), 58 Ill. App. 3d 487, 490, 374 N.E.2d 822, this court imposed upon a trial judge who appoints private counsel to represent a defendant the obligation to \u201ctake sufficient care to determine that the lawyer appointed has not participated in the case in an adversary capacity prior to appointment or that full disclosure of such participation-be made known to defendant.\u201d We cannot envision how this salutary rule can be adhered to as a practical matter where an appointed attorney permits his partner or another attorney designated by him to appear in his place. The attorney appointed by the court has the responsibility of proceeding with the defense; this is not an undertaking that he can delegate to a partner or another attorney without the express consent of the court which appointed him. The record in this case does not show an approval of the substitution for the attorney who was appointed.\nReversed and remanded with directions to grant the defendant a new trial.\nMcGILLICUDDY and RIZZI, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE SIMON" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr and Myra J. Brown, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM J. HORTON, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 78-622\nOpinion filed June 6, 1979.\nJames J. Doherty, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr and Myra J. Brown, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0009-01", "first_page_order": 31, "last_page_order": 38 }