People v. Nolden
2022 IL App (4th) 200436-U
| Ill. App. Ct. | 2022Background
- In April 2011 Nolden was convicted of armed habitual criminal and related offenses and sentenced to concurrent prison terms; one conviction later vacated on direct appeal.
- Nolden filed a pro se postconviction petition in 2014 alleging ineffective assistance of trial counsel for failing to investigate potential witnesses (notably Michael Lightfoot). The trial court advanced the petition to the second stage and appointed Daniel Wright as postconviction counsel.
- Wright investigated, communicated with Nolden and potential witness Lightfoot, drafted an affidavit for Lightfoot, and later moved to withdraw (granted July 2015). The State adopted Wright’s 2014 arguments and the trial court dismissed the petition in October 2016; this court reversed in 2019 (Nolden II) for inadequate Rule 651(c) compliance under Kuehner.
- While Nolden’s appeal was pending and before remand, Wright joined the Sangamon County State’s Attorney’s Office, was later appointed and then elected State’s Attorney (2016–2020), thereby supervising prosecutions by the office handling Nolden’s petition on remand.
- On remand new counsel Jason Young adopted Wright’s earlier motion to withdraw; the trial court allowed Young to withdraw and, at the State’s request, dismissed Nolden’s petition again in July 2020. Nolden appealed, arguing the State’s office was tainted by a per se conflict because Wright had been his postconviction counsel.
- The Fourth District reversed, holding Wright’s prior, substantive role as Nolden’s postconviction counsel and subsequent position as the county’s chief prosecutor created a per se conflict disqualifying the Sangamon County State’s Attorney’s Office; the case was remanded for second-stage proceedings with a special prosecutor.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State had a per se conflict because the county State’s Attorney was former postconviction counsel for the same case | No per se conflict; the Illinois-Supreme-Court-recognized per se categories don’t apply here and actual prejudice must be shown | Wright’s deep, substantive role as postconviction counsel, then becoming the elected State’s Attorney who supervised prosecution, creates a per se conflict disqualifying the office | Per se conflict existed; office disqualified; dismissal reversed and remanded with directions to appoint a special prosecutor |
| Whether Nolden forfeited the conflict claim by not raising it below | Forfeiture: defense did not timely object in trial court | No forfeiture: parties and court were aware Wright became State’s Attorney and per se conflict excuse to raise later applies | Not forfeited; claim considered on appeal |
| Whether per se conflict rules for defense counsel translate to postconviction (statutory) counsel and justify disqualification of the prosecution | Postconviction counsel has only a statutory right; different (lesser) standard should apply | Right to conflict-free postconviction counsel is correlative to trial counsel; prosecution’s prior representation of defendant in same matter creates per se conflict | Per se rule applies to this context; conflict-free postconviction representation required |
| Proper remedy when prosecutor’s office is conflicted due to former counsel’s prior representation | At most require showing of actual prejudice or screening of particular prosecutor | Disqualify office and appoint special prosecutor to preserve integrity and avoid appearance of impropriety | Disqualification of the Sangamon County State’s Attorney’s Office and remand for proceedings with a special prosecutor |
Key Cases Cited
- People v. Miller, 771 N.E.2d 386 (Ill. 2002) (per se conflict when court-appointed defense attorney later acts as prosecutor in same case)
- People v. Hardin, 840 N.E.2d 1205 (Ill. 2005) (statutory right to postconviction counsel includes right to conflict-free representation)
- People v. Kuehner, 32 N.E.3d 655 (Ill. 2015) (standards for sufficiency of counsel’s Rule 651(c) compliance in postconviction proceedings)
- People v. Green, 178 N.E.3d 1062 (Ill. 2020) (identifies limited situations giving rise to per se conflicts for defense counsel)
- People v. Yost, 184 N.E.3d 269 (Ill. 2021) (further clarifies per se conflict categories)
- People v. Courtney, 687 N.E.2d 521 (Ill. App. Ct. 1997) (disqualifying prosecutor’s office when former defense counsel later assumes managerial role in prosecuting office)
- People v. Shick, 744 N.E.2d 858 (Ill. App. Ct. 2001) (discussing prejudice and appearance issues when former client’s counsel joins prosecution)
- People v. Gerold, 107 N.E. 165 (Ill. 1914) (longstanding rule that attorney who acquired client confidences cannot prosecute the client on matters within that scope)