Opinion
3-11-0830
08-07-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIK W. DUNAVEN, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
of the 14th Judicial Circuit,
Whiteside County, Illinois,
Appeal No. 3-11-0830
Circuit No. 10-CF-225
Honorable
Stanley B. Steines,
Judge, Presiding.
JUSTICE delivered the judgment of the court.
Justices Carter and Holdridge concurred in the judgment.
ORDER
¶ 1 Held: Defendant was denied effective assistance of counsel at probation revocation hearing where defense counsel labored under a conflict of interest resulting from counsel's previous appearance for the State in a proceeding on the underlying conviction. ¶ 2 Defendant, Erik W. Dunaven, was charged with burglary (720 ILCS 5/19-1 (West 2010)) and hired private counsel. At a joint hearing on defendant's burglary charge and his misdemeanor charge of telephone harassment, assistant State's Attorney James Heuerman appeared for the State. The trial court granted Heuerman's request for a continuance on the burglary charge and conducted a sentencing hearing on the harassment charge. Heuerman made no subsequent appearances for the State in defendant's burglary cause. Defendant pled guilty to burglary and was sentenced to probation. The State subsequently filed a petition alleging a violation of defendant's probation. During proceedings on the petition, defendant was represented by Heuerman. Defendant admitted to the allegations and was sentenced to seven years' imprisonment. Defendant appeals. We reverse the trial court's judgment and remand for further proceedings consistent with this decision.
¶ 3 FACTS
¶ 4 Defendant was charged with burglary (720 ILCS 5/19-1 (West 2010)) and hired private counsel Paul Whitcombe. The court held a joint pretrial conference to address potential speedy trial issues involving the burglary charge and a harassment charge to which defendant had recently pled guilty. Appearing for the State was assistant State's Attorney Heuerman. Heuerman was filling in that day for the assistant State's Attorney principally assigned to defendant's cases. Heuerman had little familiarity with the cases. ¶ 5 Heuerman argued in open court that, under the speedy trial statute, the State had a window of nearly 160 days to bring defendant to trial on the burglary charge; however, he urged the court to postpone deciding the issue. Heuerman moved for a continuance to allow the State Police Crime Laboratory time to conduct deoxyribonucleic acid testing on certain evidence. Whitcombe responded by requesting an opportunity to speak to Heuerman off the record about the possibility of defendant waiving his right to a speedy trial. The court granted the request, and Heuerman and Whitcombe conferred. The hearing resumed on the record, and the parties agreed to proceed with sentencing in the harassment case. Heuerman relied on defendant's prior criminal history to argue that defendant should receive the maximum sentence. The court agreed, sentenced defendant to 180 days in jail, and granted a continuance in the burglary case. Heuerman made no further appearances for the State in defendant's burglary cause. ¶ 6 Defendant later pled guilty to burglary and was sentenced to four years' probation. A month and a half later, the State filed a petition alleging that defendant had violated the terms of his probation. The trial court appointed Heuerman, now working as a public defender, to represent defendant in the probation violation proceedings. Nothing in the record shows that the court or parties considered that Heuerman's representation of defendant might create a conflict of interest. Heuerman represented defendant throughout the probation violation proceedings. Defendant admitted to the State's allegations and was sentenced to the maximum term of seven years' imprisonment. Defendant appeals.
¶ 7 ANALYSIS
¶ 8 Defendant argues on appeal that he was denied effective assistance of counsel because Heuerman was operating under a conflict of interest while representing him. As a result, defendant asks us to vacate the trial court's judgment and remand for further proceedings. We agree with defendant. ¶ 9 A defendant's sixth amendment right to effective assistance of counsel includes the right to conflict-free representation. People v. Hernandez, 231 Ill. 2d 134 (2008). Conflicts of interest come in two general varieties: per se conflicts and actual conflicts. Id. ¶ 10 A per se conflict exists when defendant's counsel has a connection to a person or entity that would benefit from an unfavorable verdict for defendant. Id. If a per se conflict exists, defendant is not required to show that his counsel's actual performance was affected in any way by the conflict. Id. That is, defendant need not show actual prejudice. People v. Kester, 66 Ill. 2d 162 (1977); People v. Stoval, 40 Ill. 2d 109, 113 (1968) ("It is unfair to the accused, for who can determine whether his representation was affected, at least, subliminally, by the conflict"). Instead, if defendant establishes a per se conflict, and defendant has not waived his right to conflict-free counsel, automatic reversal is warranted. Hernandez, 231 Ill. 2d 134. The question of whether a per se conflict exists is reviewed de novo. Id. ¶ 11 A per se conflict exists if defendant's counsel is a former prosecutor who had been personally involved in the prosecution of defendant. Id.; Kester, 66 Ill. 2d at 167 (a "potential" conflict of interest exists "when a prosecutor who personally has been involved in the prosecution of a defendant in a particular criminal proceeding later assumes the duties of court-appointed defense counsel for that defendant in the same proceeding"). The rationale for concluding that such a situation constitutes a per se conflict has been fleshed out in Kester, 66 Ill. 2d at 167 ("the possibility that the attorney might be subject to subtle influences which could be viewed as adversely affecting his ability to defend his client in an independent and vigorous manner"), and Stoval, 40 Ill. 2d at 113 ("it places an additional burden on counsel, however conscientious, and exposes him unnecessarily to later charges that his representation was not completely faithful"). ¶ 12 The State argues that there was no per se conflict here because: (1) Heuerman appeared for the State only once in defendant's burglary charge; (2) Heuerman engaged in merely ministerial acts during that one appearance; and (3) the probation violation proceedings, during which Heuerman represented defendant, were separate and distinct proceedings from the underlying burglary conviction. We disagree. ¶ 13 Heuerman appeared for the State at a pretrial conference during which he spoke to defendant's counsel about substantive speedy trial issues. Heuerman then expressed on the record his views about the application of the speedy trial statute to defendant's case. This participation in the prosecution of defendant's case is enough to establish a per se conflict of interest. Additionally, we find that the rationales underlying the per se conflict rule apply in full force when counsel participates in the State's prosecution of a defendant and then, later, represents that defendant in probation violation proceedings stemming from that prosecution. ¶ 14 Heuerman labored under a per se conflict of interest. Defendant was therefore denied effective assistance of counsel, and his conviction must be reversed.
¶ 15 CONCLUSION
¶ 16 The judgment of the circuit court of Whiteside County is reversed. The cause is remanded for further proceedings consistent with this order. ¶ 17 Reversed and remanded.