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Appellate Court Date: 2020.06.24
08:20:19 -05'00'
People v. Alexander, 2019 IL App (4th) 170425
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ANDRAY DONETA ALEXANDER, Defendant-Appellant.
District & No. Fourth District
No. 4-17-0425
Filed December 17, 2019
Decision Under Appeal from the Circuit Court of McLean County, No. 15-CF-1266;
Review the Hon. Scott D. Drazewski, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Patricia Mysza, and Christopher G. Evers, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Don Knapp, State’s Attorney, of Bloomington (Patrick Delfino, David
J. Robinson, and Rosario David Escalera Jr., of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE STEIGMANN delivered the judgment of the court, with
opinion.
Justices Turner and Cavanagh concurred in the judgment and opinion.
OPINION
¶1 In October 2015, the State charged defendant, Andray Doneta Alexander, with two counts
of residential burglary (counts I and II) (720 ILCS 5/19-3(a) (West 2014)) and one count of
possession of burglary tools (count III) (id. § 19-2(a)). In April 2017, a jury found defendant
guilty of all three charges. In May 2017, the trial court sentenced defendant to 16 years in
prison on counts I and II, 3 years in prison on count III, and ordered all sentences to be served
concurrently.
¶2 Defendant appeals, arguing he was denied the effective assistance of counsel because his
trial attorney labored under a per se conflict of interest. We disagree and affirm.
¶3 I. BACKGROUND
¶4 A. The Charges
¶5 In October 2015, the State charged defendant with two counts of residential burglary (id.
§ 19-3(a)) and one count of possession of burglary tools (id. § 19-2(a)). The trial court
appointed counsel for defendant, and, ultimately, assistant public defender Jennifer Patton
represented defendant in this case.
¶6 B. McLean County Case No. 05-CF-326
¶7 Prior to Patton’s position in the McLean County Public Defender’s Office, she served as a
McLean County assistant state’s attorney (ASA). On July 29, 2005, Patton appeared at a status
hearing on behalf of the State in McLean County case No. 05-CF-326, in which the State had
charged defendant with 14 counts of residential burglary and burglary. The docket entry for
that date shows defendant’s case was continued to August 1, 2005, for a “plea hearing.”
¶8 On August 1, 2005, Patton again appeared on behalf of the State. Defendant pleaded guilty
to four counts of residential burglary, and the State dismissed the remaining charges. The trial
court sentenced defendant to eight years’ in prison.
¶9 C. Defendant’s Motion in Limine
¶ 10 In April 2017, defendant filed a motion in limine to exclude other-crimes evidence,
including such evidence arising from McLean County case No. 05-CF-326. Following a
hearing, the trial court found defendant’s convictions prior to 2009 could not be introduced as
they were “too remote.”
¶ 11 D. The Jury’s Verdict and the Trial Court’s Sentence
¶ 12 The jury convicted defendant of two counts of residential burglary and one count of
possession of burglary tools. In May 2017, the trial court sentenced defendant to 16 years in
prison on counts I and II, 3 years in prison on count III, and ordered all sentences to be served
concurrently.
¶ 13 This appeal followed.
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¶ 14 II. ANALYSIS
¶ 15 Defendant appeals, arguing that Patton labored under a per se conflict of interest because
she appeared on behalf of the State at defendant’s guilty plea hearing 10 years earlier. We
disagree.
¶ 16 “We review de novo the legal question whether the undisputed facts of record present a
per se conflict.” People v. Morales, 209 Ill. 2d 340, 345, 808 N.E.2d, 510, 512-13 (2004). “The
sixth and fourteenth amendments to the United States Constitution guarantee the right to
effective assistance of counsel.” People v. Taylor, 237 Ill. 2d 356, 374, 930 N.E.2d 959, 970
(2010). “A criminal defendant’s sixth amendment right to effective assistance of counsel
includes the right to conflict-free representation.” Id.
¶ 17 The Illinois Supreme Court has identified two categories of conflicts of interest: per se and
actual. Id. “In determining whether a defendant received effective assistance of counsel based
on an alleged conflict of interest, we first resolve whether counsel labored under a per se
conflict.” People v. Hernandez, 231 Ill. 2d 134, 142, 896 N.E.2d 297, 303 (2008). “A per se
conflict of interest exists where certain facts about a defense attorney’s status engender, by
themselves, a disabling conflict.” Taylor, 237 Ill. 2d at 374. There are three situations where a
per se conflict exists: “(1) where defense counsel has a prior or contemporaneous association
with the victim, the prosecution, or an entity assisting the prosecution; (2) where defense
counsel contemporaneously represents a prosecution witness; and (3) where defense counsel
was a former prosecutor who had been personally involved with the prosecution of defendant.”
People v. Fields, 2012 IL 112438, ¶ 18, 980 N.E.2d 35.
¶ 18 Here, defendant does not argue the case presented an actual conflict. However, defendant
relies on Hernandez, Morales, and People v. Kester, 66 Ill. 2d 162, 361 N.E.2d 569 (1977), to
support his argument that Patton’s status as a former prosecutor who appeared at defendant’s
guilty plea hearing in 2005, engenders, by itself, a per se conflict. We disagree and find those
cases distinguishable.
¶ 19 In Hernandez, the supreme court concluded a per se conflict existed because (1) counsel
appointed to represent the defendant contemporaneously represented the defendant’s victim
and (2) the victim was on the list of State witnesses to be called in the defendant’s case.
Hernandez, 231 Ill. 2d at 151-52. In Morales, 209 Ill. 2d at 346, the supreme court found no
per se conflict present when defense counsel contemporaneously represented a potential—but
not called—State’s witness. Both Hernandez and Morales are inapposite because, in this case,
there was no contemporaneous representation of defendant and any of the State’s witnesses
who were called to testify.
¶ 20 Defendant claims Kester is particularly instructive. In Kester, the defendant’s appointed
counsel had previously appeared three times as the prosecutor in the same proceeding. Kester,
66 Ill. 2d at 163-64. In light of those facts, the supreme court held a potential per se conflict
“exists in a situation such as this when a prosecutor who personally has been involved in the
prosecution of a defendant in a particular criminal proceeding later assumes the duties of court-
appointed defense counsel for that defendant in the same proceeding.” Id. at 167. The Kester
court further concluded appointed counsel in such a situation would have “a subliminal
reluctance to attack pleadings or other actions and decisions by the prosecution which he may
have been personally involved with or responsible for.” Id.; see also People v. Lawson, 163 Ill.
2d 187, 217-18, 644 N.E.2d 1172, 1186 (1994) (“[W]here defendant’s court-appointed defense
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counsel also previously served in the same criminal proceeding as the prosecuting assistant
State’s Attorney, a possible conflict of interests existed.”).
¶ 21 Patton, who was defense counsel in this case, was never involved in the prosecution of
defendant in this criminal proceeding. This latter point is particularly important because we
construe the supreme court’s statement in Fields that a per se conflict exists “where defense
counsel was a former prosecutor who had been personally involved with the prosecution of
defendant” (Fields, 2012 IL 112438, ¶ 18) as meaning such a conflict exists when defense
counsel was a former prosecutor who had been personally involved with the prosecution of the
defendant in the very case in which the defendant was then on trial. Patton appeared on behalf
of the State at defendant’s guilty-plea hearing in an unrelated case more than 10 years earlier.
Accordingly, Kester is inapposite.
¶ 22 The facts in People v. Franklin, 75 Ill. 2d 173, 387 N.E.2d 685 (1979), are similar to the
facts here. In Franklin, the defendant argued a conflict of interest because his defense attorney
had prosecuted him four years and six months earlier in an unrelated burglary offense. Id. at
178-79. The supreme court refused to find a per se conflict of interest because (1) defense
counsel did not remember the prior prosecution until after the defendant’s trial had concluded
and (2) defense counsel’s previous work in the state’s attorney’s office did not include the
defendant’s current case. Id. at 179-80. The court concluded, therefore, that any “subliminal
effects” would not be present. Id. at 179. Accordingly, the supreme court refused to find a
per se conflict of interest based on defense counsel’s previous work as a prosecutor for the
State, even when the attorney had previously prosecuted the defendant in another case.
¶ 23 Similarly, in this case, we conclude that Patton’s prior work as a prosecutor, with no
evidence that it was related in any way to defendant’s current prosecution, did not come close
to establishing a per se conflict of interest. To conclude otherwise would be contrary to what
the supreme court wrote in People v. Spreitzer, 123 Ill. 2d 1, 19-20, 525 N.E.2d 224, 231
(1988), in which the supreme court rejected the notion that an assistant public defender could
not properly represent a defendant because that counsel had been a prosecutor in the same
county during the time that criminal charges were brought against the defendant. As the
supreme court explained,
“Such a rule would have the undesirable effect of discouraging public defender’s
officers from hiring competent former prosecutors. Particularly in small counties where
the entire criminal bar is itself not very large, a per se rule against assignment of an
entire cohort of cases to a public defender who happens to employ a former prosecutor
would be an administrative and financial nightmare.” Id.
¶ 24 III. CONCLUSION
¶ 25 For the reasons stated, we affirm the trial court’s judgment.
¶ 26 Affirmed.
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