People v. Bain

• Decision Date: 08 November 1974
• Docket Number: No. 73--349,73--349
• Citation: 320 N.E.2d 426,24 Ill.App.3d 282
• Parties: PEOPLE of the State of Illinois, Appellee, v. Frank BAIN, Appellant.
• Court: United States Appellate Court of Illinois

Page 426

320 N.E.2d 426

24 Ill.App.3d 282

PEOPLE of the State of Illinois, Appellee, v. Frank BAIN, Appellant.

No. 73--349.

Appellate Court of Illinois, Fifth District.

Nov. 8, 1974.

Robert Farrell, Deputy Defender, Mt. Vernon, Allen L. Wiederer, Asst. Appellate Defender, Chicago, for appellant.

Robert H. Rice, State's Atty., St. Clair County, Belleville (Clyde L. Kuehn, Asst. State's Atty., of counsel), for appellee.

CREBS, Justice.

This is an appeal from an order of the Circuit Court of St. Clair County denying defendant's pro se petition for post-conviction relief after an evidentiary hearing. The sole issue presented is whether the trial court committed reversible error in appointing the public defender's office to represent defendant in these proceedings when the same office had represented him on his original conviction, and when, after a previous appeal, the Supreme Court of Illinois had directed that counsel be appointed other than the public defender.

A full understanding of the issue requires a brief summary of its background. On October 8, 1965, defendant was convicted of burglary on his plea of guilty and he was sentenced to the penitentiary for a term of one to ten years. On March 6, 1969, defendant filed his pro se petition alleging, among other things, incompetence of the court appointed public defender who represented him at the time of his plea. The Circuit Court of St. Clair County dismissed this petition without an evidentiary hearing, but on appeal, and after the State confessed error, the Illinois Supreme Court, on January 27, 1971, reversed and remanded the cause and ordered that an evidentiary hearing be conducted and that counsel be appointed for defendant other than one from the public defender's office. Not until January 14, 1972, was the case again called for hearing and then, on motion of the State, the petition was dismissed once again, this time on the grounds that defendant had been paroled and was no longer incarcerated. On appeal from this order we found that defendant's parole had no bearing on his right to an evidentiary hearing (People v. Bain, 10 Ill.App.3d 363, 293 N.E.2d 758) and on March 8, 1973, we reversed the cause and remanded it with directions.

In compliance with our mandate the Circuit Court, on March 20, 1973, set the cause for a hearing and appointed an attorney from the Illinois Public Defender Project to represent defendant. When this attorney informed the court that he was unable to serve at the trial court level the court then appointed the public defender from St. Clair County. This was the same public defender's office that had represented defendant on his original conviction, but the individual attorney was different due to a change of personnel in the office. The cause then proceeded to a hearing and after presentation of evidence and arguments of counsel the petition was again dismissed. It is from this order of dismissal that the present appeal is taken.

Defendant contends that it is well established in Illinois that it is reversible error to appoint the public defender to represent a post-conviction petitioner when one of the issues raised in the petition is the competence of the same public defender's office who represented defendant at the time of his conviction. (People v. Wallace, 14 Ill.App.3d 18, 302 N.E.2d 140; People v. Gray, 4 Ill.App.3d 934, 282 N.E.2d 189; People v. Brittain, 52 Ill.2d 91, 284 N.E.2d 632.) In addition, it is pointed out that the re-appointment of the same public defender's office was directly contrary to the previous mandate of the Supreme Court of Illinois, and that the failure of the circuit court to obey such mandate in itself necessitates a reversal. People v. Bain, 10 Ill.App.3d 363, 293 N.E.2d 758.

The State does not quarrel with these principles but states that this court should be cognizant of the injustice to the people that would flow from a reversal. It is argued that defendant, at taxpayer's expense, received the services of the most respected and competent criminal attorney in the County and that far more injustice would flow from another reversal than would be sustained by defendant by such representation. This argument appears to rest on the premise that, in the State's opinion, defendant could receive no better representation than now has been afforded him, that his cause is therefore hopeless, and that the taxpayers should not be subjected to the injustice of having to undergo any further expense in defendant's behalf.

Such an argument begs the question. The issue here is not the competence of the public defender appointed to represent defendant in the post-conviction proceedings, but rather whether the appointment itself gave rise to a conflict of interest situation which was both...