Not an Onion headline: Defense counsel cannot allege his own ineffectiveness (People v. Yaworski, 2014 IL App (2d) 130327)

People v. Yaworski, 2014 IL App (2d) 130327 (October 6, 2014) De Kalb Co. Vacated and remanded with directions. Defendant was convicted by a jury of DUI and DWLR. The trial court vacated the DWLR conviction and sentenced the defendant to 3.5 years DOC on the Class 2 DUI conviction. The appellate court affirmed the DUI conviction and sentence on appeal and reinstated the DWLR count. The defendant, while on MSR, filed a pro se post-conviction petition under the PCHA. The Dekalb County Public Defender’s office was appointed to represent the defendant in connection with his petition. Specifically, the same lawyer who represented the defendant at trial was assigned to represent the defendant in the post-conviction phase, where, among other claims, defendant advanced claims of ineffective assistance of trial counsel. Criminal practitioners need to read no further to see where this case is going.

The defendant’s petition alleged that he was deprived of the right to due process and the effective assistance of counsel where the court relied on prior DUI convictions in the defendant’s PSI that were allegedly not attributable to him. Though the Yaworski opinion doesn’t say, presumably the ineffective assistance claim was based on trial counsel’s failure to correct this error. The defendant’s trial counsel did not amend the defendant’s pro se petition, but did attach a mug shot to it as an exhibit. The court dismissed the petition at the second stage on res judicata grounds because the defendant had brought this claim on direct appeal.

“At issue in this appeal is whether it was error for defendant’s trial attorney, Criswell, to represent defendant in postconviction proceedings initiated by a pro se petition asserting a claim of ineffective assistance of counsel at trial.” Yaworski at ¶ 4. After deciding that the appeal wasn’t moot where the defendant here had served his sentence, the court addressed the merits. The Court mainly relied on People v. Hardin, 217 Ill. 2d 289 (2005), “entails a case-by-case inquiry when a different attorney from the public defender’s office is appointed to advance a claim that trial counsel was ineffective. However, the factors identified in Hardin essentially bear on how closely postconviction counsel’s interests are aligned with trial counsel’s: the more closely aligned, the more likely that a potential conflict of interest will be found to exist. When trial counsel and postconviction counsel are one and the same, the interests are identical and the potential conflict of interest is inherent.” Id. at ¶9. The Court therefore held that “it is improper to appoint an attorney as postconviction counsel to pursue a claim that his or her own performance as trial counsel was incompetent.” Id. at ¶10. The Court thereafter reversed the trial court’s dismissal of the defendant’s petition and remanded with instructions to appoint counsel other than the original trial counsel to represent the defendant.

The result in this case is predictable, especially under the facts of this case. An obvious potential for a conflict of interest occurs when defense counsel is placed in the position of alleging—or not alleging—his own effective assistance. If he alleges in a post-trial pleading that he was ineffective in order to advance the interests of his client, then he is potentially exposing himself to a number of negative personal and professional consequences. The client’s interests and the defense lawyer’s interests are therefore at odds from the onset of the representation. It creates problems where problems can be easily avoided. Here the court “decline[d] to speculate whether Criswell failed to amend the petition because there was no good-faith basis for arguing his own incompetence or, conversely, because there was a good- faith basis for doing so but Criswell was inhibited by self-interest,” but I would expect that the client may have so speculated. This issue could have all been prevented if the court would have simply appointed counsel outside of the Public Defender’s office to represent the defendant in connection with his petition. The reasons for doing this are manifest (and, in fact, many counties, including my home county of Rock Island, do this as a matter of practice), but many cash-strapped jurisdictions do not want to spend precious funds on hiring outside counsel and result to shortcuts like this. However, Yaworski demonstrates that, in the end, this is often no shortcut at all because now the case has been remanded for the proceedings to start anew.

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