People v. Guerrero, 2018 IL App (3d) 170786 (September). Episode 544 (Duration 6:00)

Former prosecutor jumps to public defender’s office and then represents defendant in a post trial motion.

Gist

Defendant cold plead to a cannabis distribution charge. He got probation then was litigating the plea and trying to vacate it based on improper immigration admonishments.

ASA Goes To PD

Then the prosecutor who handled the sentencing hearing jumped to the public defenders office and represented defendant on his post trial motion.

Issue

Defendant first contends that his post plea counsel labored under a per se conflict of interest, as he appeared for the State at defendant’s sentencing hearing.

Per Se Conflict of Interest

When a per se conflict of interest exists, the defendant need not show that the conflict prejudiced him, and the court on appeal must reverse unless the defendant affirmatively waived the conflict. People v. Spreitzer, 123 Ill. 2d 1, 14-17 (1988).

“Unless a defendant waives his right to conflict-free representation, a per se conflict is automatic grounds for reversal. A per se conflict of interest occurs:

(1) where defense counsel has a prior or contemporaneous association with the victim, the prosecution, or an entity assisting the prosecution; 
(2) where defense counsel contemporaneously represents a prosecution witness; and 
(3) where defense counsel was a former prosecutor who had been personally involved with the prosecution of defendant.

Error

The State confesses error.

We accept the State’s confession. 

Where counsel represented the prosecution in the same case, “inquiry into the precise nature and extent of [counsel’s] personal involvement is [n]either necessary [n]or desirable.” People v. Kester, 66 Ill. 2d 162, 168 (1977).

He Did The Sentencing For The State

Here, Hansen appeared on behalf of the State during defendant’s sentencing hearing. He then went to work for the public defender’s office and represented defendant during his motion to withdraw guilty plea. Because Hansen represented the interests of the State during defendant’s case before representing defendant, Hansen labored under a per se conflict of interest.

No Waiver

There is nothing in the record to show that defendant affirmatively waived this conflict.

Holding

Therefore, we vacate the circuit court’s order denying defendant’s motion to withdraw guilty plea and remand for new post plea proceedings, including (1) the appointment of conflict free counsel, (2) the opportunity to file a new motion to withdraw guilty plea, if counsel deems a new motion is necessary, (3) certification under Illinois Supreme Court Rule 604(d), and (4) a new hearing on the motion to withdraw guilty plea.

See Also

• Episode 516 – People v. Jackson, 2018 IL App (3d) 170125 (May) (former ASA goes to work for defense firm)
• Episode 375 – Nrupa Patel Helps Dissect Conflict Of Interest Confronting Former Prosecutors
• People v. Schutz, 2017 IL App (4th) 140956 (June). Episode 379 (Jailhouse Client Turned Informant On Another Client – Ethical Dilemma Ensues)
• Episode 056 – See People v. Shepherd, 2015 IL App (3d) 140192 (February) (Ethical Violation After a Meeting With Prosecutor)
• People v. Nelson, 2017 IL 120198 (June). Episode 252 (Did The Defense Team Pick The Wrong Defense Because Of A Conflict Of Interest?)