2012 IL App (3d) 090558
Ill. App. Ct.2012Background
- Fountain pled guilty to theft by deception in exchange for probation and restitution to Mitch Wilson’s estate.
- Probation was revoked after restitution nonpayment and a supplemental petition alleged a new theft; PSI and sentencing followed.
- Murphy (a member of a private firm) initially represented Fountain; Knuckey later appeared for the plea and probation terms were set.
- Murphy later reappeared as Fountain’s counsel during probation revocation; Fountain raised a conflict due to Murphy’s firm representing Wilson’s estate.
- Fountain admitted the probation petitions after conferring with Murphy; Fountain was sentenced in absentia to five years’ imprisonment.
- Trial court deemed no conflict existed; this appeal challenged the per se conflict and sought remand for conflict-free representation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Murphy’s firm’s representation of the victim’s estate created a per se conflict | Fountain | Fountain | Yes, per se conflict existed; automatic reversal warranted. |
| Whether a per se conflict requires reversal or can be analyzed for prejudice | Fountain | State | Automatic reversal; prejudice need not be shown under per se rule. |
| Appropriate remedy for per se conflict in probation revocation | Fountain | State | Sentence vacated and remand for new probation revocation and possible new sentencing. |
| Whether Mickens v. Taylor conflicts with Hernandez doctrine affects result | Fountain | State | State argues Mickens control; court followed Hernandez; remand retained. |
Key Cases Cited
- People v. Hernandez, 231 Ill. 2d 134 (Ill. 2008) (per se conflict rule; automatic reversal for conflict with victim represented by counsel)
- Mickens v. Taylor, 535 U.S. 162 (U.S. 2002) (requires showing the conflict adversely affected counsel unless complete denial of counsel or other circumstances)
- People v. Coslet, 67 Ill. 2d 127 (Ill. 1977) (per se conflict when attorney represents defendant and victim’s administrator)
- People v. Free, 112 Ill. 2d 154 (Ill. 1986) (conflict imputed to firm members; per se conflict doctrine)
- People v. Stoval, 40 Ill. 2d 109 (Ill. 1968) (per se conflict when attorney represents victim’s interests)
- People v. Lain, 80 Ill. App. 3d 1136 (Ill. App. 1980) (recognition of per se conflict where firm represents victim)