People v. Cross

• Decision Date: 17 July 1975
• Docket Number: No. 12792,12792
• Citation: 30 Ill.App.3d 199,331 N.E.2d 643
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. AL CROSS, Jr., and Terry E. Buss, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 643

331 N.E.2d 643

30 Ill.App.3d 199

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. AL CROSS, Jr., and Terry E. Buss, Defendants-Appellants.

No. 12792.

Appellate Court of Illinois, Fourth District.

July 17, 1975.

Francis J. Davis, Auler Law Offices, Champaign, for defendants-appellants.

Bobby F. Sanders, State's Atty., Charleston, Kestutis P. Kemezys, Asst. State's Atty., for plaintiff-appellee.

GREEN, Justice.

The defendants, Cross and Buss, were charged with the misdemeanor offense of attempted theft. A jury trial was held on June 15, 1972, with associate Judge Thomas Burke presiding. The defendants were represented by private counsel. Their attorney had been a special assistant attorney general for the State of Illinois for the purpose of handling inheritance tax matters since May of 1969 and was so employed at the time of defendants' trial. The jury found both Cross and Buss guilty. After a sentencing hearing on November 20, 1972, a fine of $200 was imposed upon Cross, and a fine of $300 was imposed upon Buss. They were not sentenced to jail terms.

The defendants filed a petition for post-conviction relief in which they claimed that they had been denied their constitutional right to the effective assistance of counsel due to a conflict of interest of their attorney. A hearing was held on this petition before associate Judge Tom Grace because Judge Burke had been elevated to the position of circuit judge. The petition for post-conviction relief was denied, and the defendants filed their notice of appeal from that order on July 12, 1974.

Relief under the Post-Conviction Hearing Act (Ill.Rev.Stat.1971, ch. 38, 122--1) recently has been held to be available to criminal defendants who are convicted of misdemeanors even though they are not sentenced to jail terms. (People v. Warr, 54 Ill.2d 487, 298 N.E.2d 164.) We have concluded that Warr is applicable to the instant case.

The post-conviction hearing was presided over by Judge Grace, rather than Judge Burke, and the defendants made no objection to the assignment of their post-conviction hearing to Judge Grace. On appeal of the denial of their post-conviction petition, the defendants argue that the post-conviction hearing should have been held before Judge Burke who had presided over the trial. The defendants have waived this issue. A fundamental principle of law requires a party to raise an objection in the lower court before an appellate court will consider such an objection. People v. Reed, 36 Ill.2d 358, 223 N.E.2d 103.

The only remaining issue is whether the defendants were denied the effective assistance of counsel due to a conflict of interest of their attorney. Defendants' trial counsel was serving as a special assistant attorney general for the purpose of handling inheritance tax matters at the time of the criminal proceedings which led to the conviction and fine of the defendants. The defendants claim that they did not know of the status of their counsel as a member of the staff of the Attorney General's office. They argue that their counsel was representing conflicting interests which denied them the effective assistance of counsel. On the other hand, the People contend that no actual prejudice resulted to the defendants. At the post-conviction hearing, the attorney testified that he had represented the defendant Cross for many years, that he had informed Cross that he was a special assistant attorney general, that he had represented the defendants in certain matters in the nature of the early stages of a civil proceeding which developed into the criminal case involved here, that he was...