Kane County Nuggets

Internal education and training for the Kane County State's Attorney's Office.

Prosecutor Probably Had a Conflict of Interest But Appellate Court Didn’t Look At The Issue

By Samuel Partida, Jr.

People v. Kibbons, 2016 IL App (3d) 150090 (April). Episode 176 (Duration 12:07)

Prosecutor on this aggravated DUI represented defendant when he was charged with his first DUI.

Issue

Is this a conflict of interest?

Well the defense argued that his plea should be vacated because there was a per se conflict of interest on the part of the State’s Attorney, a violation of the Illinois Rules of Professional Conduct, and violations of the Illinois constitution.

…But First Let’s Talk Conflict of Interest

In Illinois the courts have identified three per se conflicts of interest specific to criminal defense attorneys:

(1) when defense counsel has a prior or contemporaneous association with the victim, the prosecution, or an entity assisting the prosecution;

(2) when defense counsel contemporaneously represents a prosecution witness; and

(3) when defense counsel was a former prosecutor who had been personally involved in the prosecution of defendant.

see ¶ 216. See also Is It A Per Se Conflict of Interest When Trial Attorney Raises Ineffective Assistance on Himself? and People v. Poole, 2015 IL App (4th) 130847 (September 2015)

With a per se conflict there is no waiving of it. Reversal is automatic and there is no requirement of a finding of an actual conflict.

So this defendant definitely had a legitimate (probably winnable issue) issue on appeal.

Issued Waived

However, the court did not reach the merits of the claim. The defendant did not file a notice of appeal within 30 days of the denial of the motion to reconsider his plea.

Instead, he filed what he should have filed initially, that being a motion to vacate his guilty plea under Rule 604(d).

While that motion was filed when the trial court still had jurisdiction, it was not a timely motion under Rule 606(b), and the court had no discretion to forgive the defendant’s failure to comply with the rule. See People v. Salem, 2016 IL 118693, ¶ 19 (motion for a new trial, filed within 30 days of sentencing but not within 30 days of the verdict, was not a timely motion to extend the time to appeal under Rule 606(b); to hold otherwise would render the term “timely” in 606(b) meaningless).

Since the notice of appeal was untimely, the court lacked lack jurisdiction over the appeal.