People v. Cornwall
| Decision Date | 22 December 1971 |
| Docket Number | Gen. No. 71--165 |
| Citation | 3 Ill.App.3d 943,277 N.E.2d 766 |
| Parties | PEOPLE of the State of Illinois, Appellee, v. Charles Ross CORNWALL, Appellant. |
| Court | United States Appellate Court of Illinois |
Bruce Stratton, T. A. Gottfried, Ottawa, for appellant, for plaintiff in error.
Wm. J. Scott, Atty. Gen., of Illinois, Springfield, James N. DeWulf, State's Atty. of Rock Island County, Rock Island, for appellee; Robert C. Shearer, Asst. State's Atty., Rock Island, Thomas J. Immel, Asst. Atty. Gen., Springfield, of counsel.
The defendant was indicted on two counts of armed robbery. On feb. 6, 1967 he pleaded guilty to both counts after selection of a jury had commenced. Defendant was fully advised of his rights in connection with his plea. After waiving his right to petition for probation and his right to a hearing in mitigation, defendant was sentenced to concurrent terms of 5 to 12 years on each count. A notice of appeal was filed on March 8, 1967 but on June 18, 1968 was dismissed because it had not been duly prosecuted. Defendant filed a post-conviction proceeding in November, 1969 alleging that his retained counsel Thomas M. Kelly, Jr., was not licensed to practice in Illinois and had incompetently represented him. The Public Defender was appointed to represent defendant and a hearing was had June 9, 1970 after which the trial court dismissed the petition. Defendant has prosecuted the instant appeal from said dismissal.
The issues presented for review are whether defendant was denied effective assistance of counsel: A. His lawyer was not licensed to practice in Illinois and; B. The same lawyer failed to complete the appeal and failed to file a petition for Executive Pardon.
At the post-conviction hearing, both defendant and his retained counsel testified. Thomas M. Kelly, Jr., resides in Milan, Illinois, but has a law office in Davenport, Iowa where he was admitted to the bar on October 17, 1952. He is not licensed in Illinois but does practice in the Circuit Court of Rock Island County, Illinois, particularly in criminal matters. Defendant at the time of his arrest was living in Davenport, Iowa. He first talked to Mr. Kelly at the Davenport Police Station where he was being held for the Rock Island authorities. Defendant there specifically asked Mr. Kelly if he was allowed to practice in Illinois and was told that he was.
The fact that a lawyer of one's own choosing is not admitted to practice in Illinois does not show that defendant was denied effective assistance of counsel in violation of due process. 'The test of due process is not whether the defendant had an attorney, licensed or unlicensed, but whether, under all the circumstances of the case, his conviction was obtained in such a manner as to be offensive to the common and fundamental ideas of what is fair and what is right.' People v. Cox, 12 Ill.2d 265, 146 N.E.2d 19, wherein the court also said, on page 271, 146 N.E.2d on page 23, 'It has never been considered the duty of the court to advise or exercise any authority or control over the selection of counsel by an accused who is able and does employ a lawyer of his choice . . . For that reason we have consistently held that when a defendant selects his own attorney, or where, as an intelligent and competent person, he acquiesces in the selection by another, he is himself responsible if that counsel does not faithfully serve his interests, and he cannot later contend he was denied due process of law because of his lawyer's shortcomings, unless the representation was of such caliber as to reduce the proceedings to a farce or a sham . . . The same rule must apply where the defendant's chosen attorney later proves to be only an attorney in fact of a layman, for if it were otherwise, an accused would be tempted to seek unlicensed and unqualified representation in the hope of gaining acquittal, but with the assurance of gaining a new trial even if convicted . . . A violation of due process does not result, therefore, from the single circumstance, unaided by other facts, that the counsel of a defendant's choice is later proved to be unlicensed to practice law before the court in which the trial occurred.'
See 74 A.L.R.2d 1426; State v. Miller, 16 N.J.Super. 251, 84 A.2d 459, cert. den. 342 U.S. 934, 72 S.Ct. 379, 96 N.Ed. 695; People v. Ragni, Co.Ct., 159 N.Y.S.2d 358; People v. Sardo, 15 Misc.2d 69, 178 N.Y.S.2d 691; and U.S. v. Bradford, 238 F.2d 395, cert. den. 352 U.S. 1002, 77...
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In re Lewis
...violation where attorney was duly admitted to state court but had failed to seek admission to federal court); People v. Cornwall , 3 Ill. App. 3d 943, 277 N.E.2d 766, 767-68 (1971) (same where out-of-state attorney had failed to seek admission pro hac vice); State v. White , 101 N.M. 310, 6......
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U.S. v. Hoffman
...leave to represent the defendant. Accord Derringer v. United States, 441 F.2d 1140 (8th Cir.1971) (per curiam); People v. Cornwall, 3 Ill.App.3d 943, 277 N.E.2d 766 (1971); State v. Deruy, 143 Kan. 590, 56 P.2d 57 (1936). In Wilson v. People, --- Colo. ----, 652 P.2d 595 (1982), cert. denie......
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Solina v. U.S., 1146
...the representative was a member of the bar of another state but had failed to seek admission pro hac vice, e.g., People v. Cornwall, 3 Ill.App.3d 943, 277 N.E.2d 766 (1971); where he had met all qualifications of learning and character but had failed to take the oath, e.g., Wilson v. People......
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Padgett v. U.S.
...595 (Colo.1982) (counsel who had graduated from law school, passed the bar exam, but had not yet taken the oath); People v. Cornwall, 3 Ill.App.3d 943, 277 N.E.2d 766 (1971) (out of state attorney who failed to seek admission pro hac vice). As the Third Circuit stated in United States v. Co......