2022 IL App (5th) 190407-U

Ill. App. Ct.

2022

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES L. LOMAX, Defendant-Appellant.

NO. 5-19-0407

APPELLATE COURT OF ILLINOIS FIFTH DISTRICT

February 1, 2022

2022 IL App (5th) 190407-U

JUSTICE WHARTON delivered the judgment of the court. Justices Cates and Moore concurred in the judgment.

Appeal from the Circuit Court of Jefferson County. No. 18-CF-399. Honorable Jerry E. Crisel, Judge, presiding. NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). NOTICE: Decision filed 02/01/22. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

ORDER

¶ 1 Held: It is necessary for this court to remand the matter to the trial court for a factual determination as to when defense counsel‘s asserted per se conflict of interest arose. It is not yet necessary for this court to consider the defendant‘s arguments concerning the adequacy of the trial court‘s Rule 402 admonishments at the plea hearing.

¶ 2 The defendant, James L. Lomax, pled guilty to one count of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2016)) in a partially negotiated plea agreement that included an agreed sentencing cap and the dismissal of an additional charge. Shortly after the plea hearing, appointed counsel notified the court that he had become aware that he had a per se conflict of interest sometime after the plea hearing. The court appointed a new attorney to represent the defendant going forward, but did not inquire as to the nature of the conflict or when it arose. The defendant later filed a motion to withdraw his plea, arguing that plea counsel provided ineffective assistance and that the court failed to substantially comply with the requirements of Illinois Supreme Court Rule 402 (eff. July 1, 2012). The court denied his motion. In this appeal, the defendant argues that (1) his plea was not knowing and voluntary because the court did not substantially comply with Rule 402 when admonishing him at the plea hearing and (2) because the record does not establish whether the defendant received conflict-free representation during the plea proceedings, we must remand to allow the court to make this crucial finding. We agree with his second contention. We therefore remand this matter to the trial court to allow it to make that finding. In light of this disposition, we do not need to address his argument concerning the court‘s admonishments at this time.

I. BACKGROUND

¶ 4 The defendant was indicted on one count of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2016)) and one count of possession of a stolen firearm (id. § 24-3.8). He pled guilty to the charge of unlawful possession of weapon by a felon in a partially negotiated plea agreement. Pursuant to that agreement, the State dismissed the second charge and agreed to a six-year sentencing cap, which would be binding on the court.

¶ 5 At a November 20, 2018, plea hearing, the court admonished the defendant concerning the rights he would give up by pleading guilty. Specifically, the court told the defendant that he had the right to be proven guilty beyond a reasonable doubt, the right to a jury trial, the right to be present at his trial, the right to confront and cross-examine witnesses against him, the right to present witnesses and other evidence in his defense, the right to remain silent, and the right to a speedy trial. The court advised the defendant that by pleading guilty he was waiving all of these rights, but did not specifically advise the defendant that he had the right to plead not guilty. The defendant indicated that he understood these rights.

¶ 6 The court next admonished the defendant concerning the nature of the charge and the sentencing range for the offense. The court explained that the possible sentencing range for unlawful possession of a weapon by a felon was 2 to 10 years (see id. § 24-1.1(e)). However, the court did not tell the defendant that he would also serve a one-year period of mandatory supervised release, and the court did not ask the defendant whether he understood the sentencing range as explained.

¶ 7 After the State presented a factual basis, the prosecutor described the plea agreement. The court asked the defendant if that was his understanding of the agreement. The defendant responded in the affirmative. The court then asked the defendant whether anyone had promised him anything in exchange for his plea and whether anyone had threatened or coerced him. In response to both questions, he replied, “No.”

¶ 8 The defendant‘s next court appearance was a status hearing on December 5, 2018. Defense counsel, Phillip Butler, stated as follows: “Your Honor, in this case I‘ve had a per se conflict come up that I‘ve become aware of since his open plea. I did explain that to Mr. Lomax and his need for other representation.” The court appointed a new attorney to represent the defendant, but did not inquire into either the nature of Butler‘s conflict or when it arose.

¶ 9 On March 28, 2019, the defendant‘s second attorney was allowed to withdraw as counsel due to reassignment within the public defender‘s office. On April 17, 2019, the court appointed attorney Matthew Vaughn to represent the defendant.

¶ 10 On July 1, 2019, Vaughn filed on behalf of the defendant a motion to withdraw his plea. He argued that the defendant received ineffective assistance of counsel during the plea proceedings and that the court failed to substantially comply with the requirements of Rule 402 in admonishing the defendant at the plea hearing. We note that the motion did not raise the question of Butler‘s possible conflict of interest. Instead, it asserted that “counsel played a diminished and minimal role in the proceedings.”

¶ 11 The court determined that the defendant‘s motion to withdraw his plea was premature and declined to rule on it until after sentencing. At the end of the July 19, 2019, sentencing hearing, the court sentenced the defendant to five years in prison to be followed by one year of mandatory supervised release.

¶ 12 On August 26, 2019, the court held a hearing on the defendant‘s motion to withdraw his plea. Defense counsel Vaughn focused his argument on the court‘s failure to fully comply with Rule 402 during the plea hearing. The State acknowledged that the court did not fully comply with the requirements of the rule. The State argued, however, that the court substantially complied. The court took the matter under advisement. On September 3, 2019, the court denied the motion. This appeal followed.

II. ANALYSIS

¶ 14 The defendant raises two contentions on appeal. He first argues that the court‘s admonishments at the plea hearing did not substantially comply with Rule 402. Specifically, he asserts that the court failed to (1) advise him that he had the right to plead not guilty, to persist in a plea of not guilty if he had already entered such a plea, or to plead guilty (see Ill. S. Ct. R. 402(a)(3) (eff. July 1, 2012)); (2) explain that his sentence would also include a term of mandatory supervised release; and (3) determine whether the defendant understood the nature of the charge and the sentencing range prescribed by statute. He contends that the court‘s denial of his motion to withdraw his plea should therefore be reversed.

¶ 15 The defendant‘s second contention is that the record in this case raises “a serious question of whether Mr. Lomax was deprived of his sixth amendment right to the effective assistance of counsel” due to the possibility that attorney Butler labored under a per se conflict of interest while representing the defendant at the plea hearing. He argues that because the record does not establish when the asserted per se conflict arose, we must remand this matter to the trial court to allow it to make that determination. The State agrees that we must remand for this purpose. We agree with the parties that remanding the matter is the proper disposition.

¶ 16 The “sixth amendment right to the effective assistance of counsel includes the right to conflict-free representation.” People v. Hernandez, 231 Ill. 2d 134, 142 (2008). If defense counsel had a per se conflict of interest, the defendant need not establish actual prejudice to be entitled to relief—that is, he need not prove that counsel‘s performance was adversely impacted by the conflict. Id. at 143. Thus, if the per se conflict Butler discovered during the 15 days between the plea hearing and the status hearing existed at the time of the plea hearing, this constitutes “grounds for automatic reversal.” Id.

¶ 17 Here, the court did not inquire into either the nature of Butler‘s conflict or when it arose. Based on the limited information available in the record, it is impossible for this court to know whether Butler was operating under a per se conflict of interest while representing the defendant at the plea hearing. It is therefore necessary to remand this case to the trial court to allow it to make that determination. See People v. Owens, 69 Ill. App. 3d 599, 603 (1979).

¶ 18 On remand, if the court determines that Butler had a per se conflict of interest that existed at the time of the plea hearing, as stated previously, the defendant will be entitled to “automatic reversal.” See Hernandez, 231 Ill. 2d at 143. This means that if the court makes that finding, he must be allowed to withdraw his plea regardless of whether the plea court‘s admonishments are deemed to be in substantial compliance with Rule 402. As such, we need not address that issue at this time. If, on the other hand, the court determines that Butler did not have a per se conflict of interest at the time of the plea hearing, the defendant would not be barred from raising his Rule 402 claim in a subsequent appeal.

III. CONCLUSION

¶ 20 For the foregoing reasons, we remand this cause to the trial court for further proceedings consistent with this decision.

¶ 21 Cause remanded.