People v. Larry

553 N.E.2d 431, 196 Ill. App. 3d 231, 142 Ill. Dec. 917, 1990 Ill. App. LEXIS 505
CourtAppellate Court of Illinois
DecidedApril 11, 1990
DocketNo. 2-88-0441
StatusPublished
Cited by4 cases

This text of 553 N.E.2d 431 (People v. Larry) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Larry, 553 N.E.2d 431, 196 Ill. App. 3d 231, 142 Ill. Dec. 917, 1990 Ill. App. LEXIS 505 (Ill. Ct. App. 1990).

Opinion

JUSTICE DUNN

delivered the opinion of the court:

Defendant, Gerald Larry, was charged with attempted murder and entered a plea of guilty. The trial court sentenced him to a 20-year term of imprisonment. Defendant subsequently filed a petition for post-conviction relief, which the trial court denied following a hearing. On appeal, defendant maintains that the petition should have been granted because all four codefendants were represented by attorneys who worked for the Winnebago County public defender’s office, thus creating a conflict of interest. We affirm.

The attempted-murder charge resulted from the shooting of Terry Gagliano on February 12, 1985. At about 5 p.m. Gagliano, who operated a pizza parlor, received a telephone call requesting the delivery of pizza and soft drinks to an apartment building in Rockford. Gagliano was admitted into the building by a young man who stated he had placed the order. He took Gagliano to a door off an interior hall and knocked on the door. When there was no response, he told another man who had just come down a flight of stairs to return upstairs and tell someone to come down and open the door. Gagliano then saw a third man go down the hall.

Gagliano became suspicious at this point. He handed the pizzas and soft drinks to the man who had let him in the building and stated that he had forgotten something but would be right back. Gagliano then turned and began to walk away. He thought he saw defendant standing down the hallway. Gagliano was shot in the back. Although he was seriously injured, Gagliano was able to run away. The assailant fired a second shot, but it did not strike Gagliano.

Shortly after the shooting, the Rockford police arrested four youths: defendant, Jay Tomlinson, Darnell Heavy, and Antonio Craig. Craig was charged as a juvenile. All four youths gave statements to the police in which they admitted that the four planned to order pizza and then rob the person who made the delivery. Heavy implicated defendant as the shooter, while defendant stated Tomlinson was the shooter. Defendant stated that he and Craig were supposed to stab the delivery person. Tomlinson denied he was the shooter and stated he did not know who was. Craig also stated he did not know who the shooter was but he did not think it was defendant. The police were not able to establish who fired the shots, although they did establish that the weapon used was a .32 caliber pistol. Craig said in his statement that he saw Tomlinson early on the morning of the shooting and Tomlinson possessed a .32 caliber revolver at the time.

All four of the accused were represented by attorneys from the Winnebago County public defender’s office. Defendant’s attorney was Daniel King. Tomlinson was represented by Gary Pumilia, the head of the office. Heavy’s attorney, Karen Sorenson, sought and received a substitution of judges, which effectively severed Heavy’s case. King presented a motion to sever defendant’s trial from Tomlinson’s on the basis of the inconsistent statements made by the codefendants to the police. The trial court granted the motion on May 24, 1985.

On June 7, 1985, during a court appearance, defendant requested appointment of a new attorney, stating that he did not believe King was ready to go to trial because, while King had visited defendant a few times, he had not discussed the case or its progress. The trial court denied defendant’s motion. Defendant entered an open plea of guilty on June 24,1985.

In exchange for the plea, the State agreed that defendant’s sentencing hearing could be continued to a date after Darnell Heavy’s. Heavy had entered into a plea agreement under which the State agreed to recommend an eight-year sentence. The trial court imposed an eight-year term of imprisonment upon Heavy. King argued at defendant’s sentencing hearing that defendant’s sentence should be no greater than Heavy’s.

King also argued that the evidence pointed to Tomlinson as the shooter, relying primarily upon Antonio Craig’s statement to the police. The prosecutor stated that it could not be determined who fired the shots. As a condition of the plea agreement, the State agreed that it would not argue defendant was the shooter. The State also agreed to allow defendant to present the testimony of Mary Martin, a social worker, that Detective Slaughter of the Rockford police department had told her he believed Tomlinson was the shooter. Martin testified to that effect at the sentencing hearing.

Defendant filed a motion asking the trial court to reconsider the 20-year sentence that was imposed. The trial court denied the motion. Defendant then filed a motion to vacate his guilty plea pursuant to Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)), which the trial court also denied. This court, dismissed defendant’s direct appeal for lack of jurisdiction because the Rule 604(d) motion was not timely filed. People v. Larry (1987), 153 Ill. App. 3d 1163 (unpublished order under Supreme Court Rule 23).

On June 12, 1987, defendant filed his petition for post-conviction relief, which alleged ineffective assistance of counsel due to King’s failure to timely file the Rule 604(d) motion and that a conflict of interest existed because all four codefendants were represented by separate attorneys in the Winnebago County public defender’s office. Daniel King testified that at the time he represented defendant, there were five or six felony attorneys in that office. Their offices were located in close proximity to one another. These attorneys shared the services of one secretary and two investigators. The attorneys relied upon an honor system to maintain the privacy of their pending case files, which were kept in their offices.

According to King, representation of multiple codefendants by the same public defender’s office creates feelings of awkwardness, tension, and discomfort among the attorneys in the office. This is because the attorneys may each try to get a favorable deal for their client by offering their client’s testimony against the others to the State. Additionally, the attorney may be forced to attack another lawyer’s client, and it creates discomfort when that lawyer is working in the same office. King therefore felt that allowing lawyers from the same public defender’s office to represent multiple codefendants can inhibit the aggressiveness of the attorneys on behalf of their clients. King stated that there was tension between him and Gary Pumilia regarding the instant case, although they were not at one another’s throats. King did not file a motion to withdraw from the case because this would have been contrary to an office policy set by Pumilia.

King testified that he had some conversations with Pumilia regarding defendant’s case, although neither attorney discussed specific matters which could have damaged their clients’ cases. King stated that Pumilia had the power to fire him and that Pumilia would go to the county board to request raises for the attorneys in the office.

King was not sure if he offered the State defendant’s testimony against the others in exchange for a favorable sentence. Regarding defendant’s decision to enter an open plea of guilty, King stated that he presented the options to defendant, which included a negotiated plea of 14 years, and defendant decided to enter the open plea. With the exception of the late filing of defendant’s Rule 604(d) motion, King felt he had done a decent job representing defendant.

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Cite This Page — Counsel Stack

Bluebook (online)
553 N.E.2d 431, 196 Ill. App. 3d 231, 142 Ill. Dec. 917, 1990 Ill. App. LEXIS 505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-larry-illappct-1990.