NOTICE FILED This Order was filed under 2022 IL App (4th) 200436-U May 17, 2022 Supreme Court Rule 23 and is Carla Bender not precedent except in the NO. 4-20-0436 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee ) Circuit Court of v. ) Sangamon County DEREK D. NOLDEN, ) No. 08CF979 Defendant-Appellant. ) ) Honorable ) Raylene Grischow, ) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court. Justices Cavanagh and Harris concurred in the judgment.
ORDER
¶ 1 Held: The appellate court reversed the trial court’s order, which granted the State’s motion to dismiss defendant’s postconviction petition, because defendant’s former postconviction counsel in this case had a per se conflict of interest when he became the state’s attorney of Sangamon County.
¶2 In April 2011, a jury convicted defendant, Derek D. Nolden, of being an armed
habitual criminal (720 ILCS 5/24-1.7 (West 2008)), possession of a stolen firearm (id.
§ 16-16(a)), and possession of a weapon by a felon (id. § 24-1.1(a)). The trial court sentenced
defendant to a total of 22 years in prison, and, after vacating defendant’s conviction for
possession of a stolen firearm, this court affirmed on direct appeal. People v. Nolden, 2013 IL
App (4th) 110608-U, ¶ 62 (Nolden I).
¶3 In March 2014, defendant pro se filed a petition for postconviction relief pursuant
to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)), and the trial court advanced it to the second stage of proceedings, appointing Daniel Wright as postconviction
counsel. In August 2014, the State filed a motion to dismiss defendant’s petition, and in
November 2014, Wright filed a motion to withdraw as appointed counsel. In July 2015, the trial
court granted counsel’s motion to withdraw and, in October 2016, granted the State’s motion to
dismiss. On appeal, this court reversed and remanded for further second-stage proceedings.
People v. Nolden, 2019 IL App (4th) 160936-U, ¶¶ 33-34 (Nolden II).
¶4 While defendant’s case was on appeal to this court in Nolden II, Wright was
appointed the state’s attorney of Sangamon County and, in 2020, was elected to that same
position. On remand from Nolden II, the trial court appointed new counsel, Jason Young, who
subsequently filed a motion to withdraw. In July 2020, the trial court granted Young’s motion to
withdraw and, at the State’s request, dismissed the petition.
¶5 Defendant appeals, arguing that the dismissal of defendant’s postconviction
petition must be reversed because the State was operating under a per se conflict of interest when
the state’s attorney was defendant’s former postconviction counsel in the same case. We agree,
reverse the trial court’s order dismissing the petition, and remand for further proceedings with a
special prosecutor.
¶6 I. BACKGROUND
¶7 A. The Conviction and Direct Appeal
¶8 In April 2011, a jury convicted defendant, Derek D. Nolden, of being an armed
habitual criminal (720 ILCS 5/24-1.7 (West 2008)), possession of a stolen firearm (id.
§ 16-16(a)), and possession of a weapon by a felon (id. § 24-1.1(a)). The trial court sentenced
defendant to 22 years in prison on the armed-habitual-criminal conviction, two terms of 7 years
each on the other convictions, and ordered those sentences to run concurrently. On direct appeal,
-2- this court reversed defendant’s conviction for possession of a stolen firearm because it violated
the one-act, one-crime doctrine but affirmed his other convictions and sentences. Nolden I, 2013
IL App (4th) 110608-U, ¶ 62.
¶9 B. The Initial Proceedings on Defendant’s Postconviction Petition
¶ 10 1. The Postconviction Petition and The State’s Motion To Dismiss
¶ 11 In March 2014, defendant pro se filed a postconviction petition and several
amended petitions in which he alleged, among other things, that his trial counsel was ineffective
for failing to investigate three witnesses—(1) Michael Lightfoot, (2) Ashanti Beyah, and
(3) Kesheena Nolden—who would have supported defendant’s claim at trial that he did not own
the guns that were the basis for the charges.
¶ 12 In May 2014, at a hearing, the State indicated it believed the case should proceed
to the second stage and counsel should be appointed. The trial court agreed and appointed Daniel
Wright as postconviction counsel.
¶ 13 In August 2014, the State filed a motion to dismiss the petition.
¶ 14 2. Wright’s Motion To Withdraw as Counsel
¶ 15 In November 2014, Wright filed a motion to withdraw as counsel, in which he
thoroughly explained why defendant’s claims were meritless. However, Wright failed to address
the claim in one of defendant’s amended petitions that trial counsel did not investigate Beyah
and Nolden. Wright also filed an Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013)
certificate in which he averred that he “consulted with [defendant] by telephone and by mail to
ascertain his contentions of deprivation of constitutional rights for the purposes of presenting
said alleged wrongs within these post-conviction proceedings. [Defendant] has always appeared
to be articulate in his position on these issues, and cognizant of the various matters relevant to his
-3- contentions.”
¶ 16 3. The Trial Court’s Rulings and Subsequent Appeal
¶ 17 In July 2015, the trial court conducted a hearing on Wright’s motion to withdraw.
Wright explained that the case had been continued several times so that defendant could gather
evidence to support his claims. Wright stated that he had spoken with Lightfoot, who was now
incarcerated, and attempted to get an affidavit from him but had been unsuccessful. The trial
court granted the motion over defendant’s objection. The court did not explain its reasoning.
¶ 18 Subsequently, Wright submitted an affidavit for fees, which detailed the 51 hours
he spent working on defendant’s case, including (1) communicating with defendant’s trial
counsel, (2) reviewing the record and trial transcripts, and (3) communicating with Lightfoot.
¶ 19 In October 2016, the trial court conducted a hearing on the State’s motion to
dismiss. The State adopted the arguments set forth in Wright’s motion to withdraw and argued
that defendant’s claims were either unsupported or affirmatively rebutted by case law and the
record. The court agreed and granted the State’s motion to dismiss.
¶ 20 On appeal, this court agreed with defendant that Wright, despite his laudable
efforts, failed to comply with the high bar set by the Illinois Supreme Court in People v.
Kuehner, 2015 IL 117695, 32 N.E.3d 655, because Wright did not address two of the witnesses
trial counsel allegedly failed to investigate. Nolden II, 2019 IL App (4th) 160936-U, ¶ 33. (We
note Kuehner was decided after the trial court granted Wright’s motion to withdraw.)
Accordingly, we reversed and remanded the case for further second-stage proceedings. Id. ¶ 34.
¶ 21 C. Proceedings on Remand
¶ 22 In 2016, while defendant’s postconviction claim was on appeal, Wright became
an assistant state’s attorney in the Sangamon County State’s Attorney’s Office. In 2018, Wright
-4- was appointed state’s attorney, and in 2020, he was elected to that same position.
¶ 23 In May 2019, the trial court appointed new postconviction counsel for defendant.
In June 2019, “[d]ue to a conflict that has been brought to the [trial] court’s attention,” the court
struck its appointment of defendant’s initial postconviction counsel and appointed Jason Young
instead.
¶ 24 In July 2019, the State filed a document titled “Responsive Pleading,” in which it
noted that (1) it had filed a motion to dismiss in 2014 and (2) Young had not yet filed a Kuehner
motion or an amended postconviction petition.
¶ 25 1. Young’s Motion To Withdraw
¶ 26 In March 2020, Young filed a motion to withdraw as postconviction counsel,
asserting he had (1) consulted with defendant, (2) investigated defendant’s claims—including
trial counsel’s failure to investigate witnesses, and (3) concluded no meritorious constitutional
claims existed. Young’s motion adopted and incorporated by reference Wright’s 2014 motion to
withdraw.
¶ 27 Regarding the failure to investigate witnesses, Young asserted that defendant
could only name one witness, Lightfoot, who should have been called and could have provided
helpful testimony. For all other witnesses, if defendant could provide a name, he could not
explain (1) what their testimony would be or (2) how that testimony would have been helpful at
trial. Young concluded the record demonstrated trial counsel was aware of Lightfoot’s
involvement, explored the issue at trial, and made a strategic decision not to call Lightfoot as a
witness.
¶ 28 2. The Hearing and the Trial Court’s Ruling
¶ 29 In July 2020, the trial court conducted a hearing on Young’s motion to withdraw.
-5- Young argued that Wright had previously (and correctly) explained why the claims in
defendant’s postconviction petitions on file with the court were not meritorious. Young also
addressed the two witnesses mentioned in the prior appeal by stating defendant could not say
what those witnesses would testify to.
¶ 30 The State argued that it agreed with Young and the motion to withdraw because
the claims raised by defendant were meritless. The following exchange then occurred:
“[DEFENDANT]: And actually, I wanted to say something. Daniel
Wright, he actually contacted this witness, *** Michael Lightfoot, actually talked
to him on the phone. The head State’s Attorney talked to him on the phone, and
[Lightfoot] actually admitted to him, saying that I had nothing to do with these
weapons, and I took probation for these weapons.
And he was, actually sent a statement to [Lightfoot], which he actually got
out of jail at the time, and that is why he couldn’t get a signature at the time. But
it still—Daniel Wright, the head State’s Attorney, was my attorney at that time,
actually talked to this guy on the phone.
THE COURT: Do you have any information in your file about that, Mr.
Mosher?
MR. MOSHER [(ASSISTANT STATE’S ATTORNEY)]: No, Your
Honor, I have no information about any such phone call.
[DEFENDANT]: He [(Wright)] was the attorney for this case at the time.
MR. YOUNG [(DEFENSE ATTORNEY)]: I don’t remember where it
was in the file, Your Honor, but it did indicate that Mr. Wright had contacted Mr.
Lightfoot, and then it said that he had drafted an affidavit based on what
-6- [defendant] had told him and sent it to Mr. Lightfoot, but Mr. Lightfoot never
returned the affidavit, and he could no longer, he couldn’t contact him any further.
THE COURT: Okay. Thank you. So am I hearing you correctly that two
attorneys had drafted affidavits for Mr. Lightfoot to sign, and both times he had
not signed them, or was it only Mr. Wright?
MR. YOUNG: It was only Mr. Wright.
THE COURT: Okay. Thank you.”
¶ 31 After hearing the arguments of the parties, the trial court granted Young’s motion
to withdraw.
¶ 32 The trial court asked the State if it had a responsive pleading on file. The State
said that it did and that pleading incorporated the State’s 2014 motion to dismiss defendant’s
postconviction petition, which the State considered to be still pending. The State then argued
that, as the parties and the court had just discussed at the hearing, defendant had multiple
opportunities to gather and present additional claims and evidence in support of those claims and
was unable to do so or otherwise show his claims had any merit. The State asked that defendant’s
petition be dismissed as a result. The court agreed and granted the State’s motion to dismiss.
¶ 33 This appeal followed.
¶ 34 II. ANALYSIS
¶ 35 Defendant appeals, arguing that the dismissal of defendant’s postconviction
petition must be reversed because the State was operating under a per se conflict of interest when
the state’s attorney was defendant’s former postconviction counsel in the same case. We agree,
reverse the trial court’s order dismissing the petition, and remand for further proceedings with a
-7- ¶ 36 A. The Applicable Law and Standard of Review
¶ 37 The Act provides a criminal defendant the means to redress substantial violations
of his constitutional rights that occurred in his original trial or sentencing. People v. Crenshaw,
2015 IL App (4th) 131035, ¶ 23, 38 N.E.3d 1256; 725 ILCS 5/122-1 (West 2016). The Act
contains a three-stage procedure for relief. People v. Allen, 2015 IL 113135, ¶ 21, 32 N.E.3d
615; 725 ILCS 5/122-2.1 (West 2016). At the second stage, the trial court appoints counsel who
must then investigate the defendant’s claims and make any amendments necessary for an
adequate presentation of the defendant’s contentions. Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013). The
State may file a motion to dismiss the petition, and the petition advances to a third-stage
evidentiary hearing only if the defendant makes a “substantial showing of a constitutional
violation.” (Internal quotation marks omitted.) People v. Johnson, 2018 IL App (5th) 140486,
¶ 22, 99 N.E.3d 1.
¶ 38 The right to counsel in postconviction proceedings is statutory rather than
constitutional, and therefore a defendant is only entitled to the level of assistance guaranteed by
the Act. People v. Greer, 212 Ill. 2d 192, 203, 817 N.E.2d 511, 518-19 (2004). Nonetheless, the
statutory right to counsel includes the right to conflict free counsel. People v. Hardin, 217 Ill. 2d
289, 300, 840 N.E.2d 1205, 1212 (2005).
¶ 39 Regarding conflicted counsel, the Illinois Supreme Court has written the
following:
“An attorney cannot represent conflicting interests or undertake to
discharge inconsistent duties. [Citations.] A defendant who fails to raise a conflict
of interest issue in the trial court cannot succeed on appeal unless he demonstrates
that he was actually prejudiced. [Citation.] An exception exists in the case of a
-8- per se conflict of interest. When a per se conflict exists, prejudice is presumed;
defendant is not required to demonstrate that the conflict contributed to the
conviction.” People v. Miller, 199 Ill. 2d 541, 544-45, 771 N.E.2d 386, 388
(2002).
¶ 40 The supreme court has also held that when “the court-appointed attorney who
represented defendant as defense counsel later acted as the prosecutor in the same criminal case,”
then “such representation creates a per se conflict of interest.” Id. at 546.
¶ 41 Whether an attorney has a conflict of interest is reviewed de novo. Id. at 544
(citing People v. Carlson, 185 Ill. 2d 546, 551 (1999)).
¶ 42 B. This Case
¶ 43 Defendant argues that the dismissal of his postconviction petition should be
reversed because the Sangamon County State’s Attorney’s Office, now headed by defendant’s
former counsel, had a per se conflict of interest. Defendant points out that Wright was his
postconviction counsel for over a year, communicated with defendant several times, and further
communicated with defendant’s trial counsel and exculpatory witnesses, going so far as to draft
an affidavit for Lightfoot to sign. In 2019, when this court remanded the case back to the trial
court for further proceedings, Wright was the state’s attorney of Sangamon County, supervising
and managing the entire office, which was then attempting to dismiss defendant’s postconviction
petition. Thus, Wright (1) had significant involvement with defendant’s petition, (2) had
involvement in the case spanning the entire postconviction proceedings, and (3) was now the top
prosecutor in charge of all prosecutions on behalf of the State. As a result, defendant argues,
Wright had a per se conflict of interest that disqualified his entire office from prosecuting the
case against defendant.
-9- ¶ 44 In response, the State makes several arguments, none of which we find
persuasive. First, the State suggests defendant forfeited the argument by not raising it below.
However, the State acknowledges that mere silence is not enough to constitute a waiver of a
conflict of interest. See People v. Fife, 76 Ill. 2d 418, 392 N.E.2d 1345 (1979). Further, the State
concedes that “undoubtedly” all parties and the trial court knew of the change in Wright’s
position, and the record demonstrates that Wright’s name and his change in position was noted
during the hearing on Young’s motion to withdraw. Accordingly, defendant’s claim was not
forfeited. See Miller, 199 Ill. 2d at 545-46 (failure to raise conflict claim in trial court was
excused when defendant showed his former counsel and current prosecutor had a per se conflict
of interest).
¶ 45 Second, the State contends that this case is distinguishable from Miller and other
cases relied upon by defendant because (1) Wright represented defendant only during
postconviction proceedings and not before trial and (2) defendants have only a statutory right to
counsel in postconviction proceedings, which is lower than the constitutional right. The State
offers no convincing reason why the per se conflict rules should be different before and after
trial, and courts in this state have not made such a distinction. See id. at 546 (per se conflict
existed when counsel represented the defendant only pretrial and represented the State on a
petition to revoke probation filed against the defendant after sentencing); People v. Curry, 1 Ill.
App. 3d 87, 90-92, 272 N.E.2d 669, 672-73 (1971) (same); People v. Clucas, 160 Ill. App. 3d
129, 131, 513 N.E.2d 402, 404 (1987) (per se conflict existed when counsel represented the
defendant before trial and represented the State at postconviction proceedings). Moreover, the
Illinois Supreme Court has been clear that “[t]he right to reasonable assistance of postconviction
counsel includes the correlative right to conflict-free representation,” and “that counsel must be
- 10 - as conflict-free as trial counsel.” Hardin, 217 Ill. 2d at 300.
¶ 46 The bulk of the State’s argument focuses on recent Illinois Supreme Court cases
clarifying when defense counsel has a per se conflict of interest, which presumes prejudice, and
when a defendant must prove actual prejudice. The State argues that Wright’s becoming the
state’s attorney after representing defendant in these postconviction proceedings is not a per se
conflict of interest, and this court should review only whether Wright’s representation created an
actual conflict.
¶ 47 In the last three years, the Illinois Supreme Court has repeatedly (and
emphatically) held that, with respect to defense counsel, “this court recognizes only three
situations in which a per se conflict of interest will be found to exist.” People v. Green, 2020 IL
125005, ¶ 43, 178 N.E.3d 1062; see also People v. Yost, 2021 IL 126187, ¶ 66, 184 N.E.3d 269.
Those three situations are the following:
“ ‘(1) when defense counsel has a prior or contemporaneous association with the
victim, the prosecution, or an entity assisting the prosecution [citations]; (2) when
defense counsel contemporaneously represents a prosecution witness [citations];
and (3) when defense counsel was a former prosecutor who had been personally
involved in the prosecution of the defendant [citation].’ ” In re Br. M., 2021 IL
125969, ¶ 45 (quoting People v. Hernandez, 231 Ill. 2d 134, 143-44, 896 N.E.2d
297, 303-304 (2008)).
¶ 48 The State points out that none of the three per se conflicts established by the
supreme court are present in this case and defendant does not make any argument that he was
actually prejudiced by Wright’s conduct.
¶ 49 The State’s argument misapprehends the nature of the conflict at issue. The State
- 11 - is, of course, correct that this case does not present any of the limited class of circumstances that
give rise to a per se conflict of defense counsel. But defendant is not arguing that his attorney
labored under a conflict of interest. Young had no conflict of interest. Instead, defendant
contends that the prosecution had a per se conflict of interest based on the state’s attorney’s prior
representation of defendant in the same case. In other words, we are not concerned with defense
counsel’s loyalty to defendant but rather that the current state’s attorney was the defendant’s
former postconviction counsel in the same case.
¶ 50 For over a century, the Illinois Supreme Court has recognized that “[a]n attorney
cannot be permitted to assist in the prosecution of a criminal case if by reason of his professional
relations with the accused he has acquired a knowledge of the facts upon which the prosecution
is predicated or which are closely interwoven therewith.” People v. Gerold, 265 Ill. 448, 478,
107 N.E. 165, 177 (1914). “It is unnecessary that the prosecuting attorney be guilty of an attempt
to betray confidence; it is enough if it places him in a position which leaves him open to such
charge.” Id. at 479.
¶ 51 In People v. Shick, 318 Ill. App. 3d 899, 906-07, 744 N.E.2d 858, 865 (2001), the
Third District wrote the following:
“Courts across the nation have recognized that a criminal defendant’s right
to a fair trial is jeopardized when an attorney who has represented him, and who
has been in his confidence, terminates the representation to work for the
prosecution. [Citation.] In addition to the danger that the defendant will suffer
prejudice from the disclosure of confidential information, courts have been
concerned that this situation creates an appearance of impropriety damaging to the
public’s esteem of the legal profession and the criminal justice system. [Citation.]
- 12 - In Illinois, it has long been held reversible error for an attorney to
participate in the prosecution of a former client on charges involving a matter
within the scope of the earlier representation. [Citation.] Moreover, such a conflict
of interest has been regarded as a per se conflict, relieving the defendant of the
burden of showing that he suffered actual prejudice.”
¶ 52 In People v. Courtney, 288 Ill. App. 3d 1025, 1032, 687 N.E.2d 521, 525 (1997),
the Third District confronted a factually similar circumstance to the case before us on appeal
when the defendant’s former counsel became the state’s attorney before defendant’s trial. Unable
to find an Illinois case directly on point, the Third District examined, and ultimately agreed with,
three decisions from our sister states addressing similar fact patterns, which all held that a special
prosecutor was required when a defendant’s trial counsel accepts a managerial position in the
office prosecuting that defendant. Id. at 1032-34 (agreeing with and adopting the analysis in
State v. Cooper, 63 Ohio Misc. 1, 7, 409 N.E.2d 1070, 1073 (1980) (stating the “overriding
requirement that the public must be able to maintain the right to believe in the total integrity of
the Bar as a whole” required county prosecutor’s office to be disqualified); Arizona v. Latigue,
108 Ariz. 521, 523, 502 P.2d 1340, 1342 (1972); People v. Shinkle, 51 N.Y.2d 417, 420-21, 415
N.E.2d 909, 910-11 (1980)).
¶ 53 Under the circumstances presented by this case, we agree with the earlier
described case law and conclude that the dismissal of defendant’s postconviction petition must
be reversed and the case remanded for the appointment of a special prosecutor.
¶ 54 Wright was appointed as defendant’s postconviction counsel in 2014 and
represented defendant for over a year, withdrawing in July 2015. Wright’s motion to withdraw,
Rule 651(c) affidavit, and request for fees establish how deeply involved Wright was with
- 13 - defendant’s case as defendant’s own attorney. Wright repeatedly communicated with defendant
about his claims, reviewed the entire file, communicated with trial counsel, and investigated
Lightfoot, who Wright determined was potentially an exculpatory witness. After speaking with
Lightfoot on the phone, Wright drafted an affidavit for Lightfoot and attempted to get his
signature but was unable to do so. Accordingly, Wright had obtained extensive information from
defendant while acting as his attorney.
¶ 55 By 2019, when this court remanded the case for further proceedings, Wright was
the state’s attorney for Sangamon County, “control[ling] the internal operations of his ***
office” and “responsible for the professional conduct and acts of his *** assistants.” Courtney,
288 Ill. App. 3d at 1034. Although Wright did not personally appear or file anything in the trial
court on behalf of the State, he was still directly responsible for the performance of the assistant
state’s attorneys who did, and he had managerial and supervisory authority over them. See Shick,
318 Ill. App. 3d at 907-08. Accordingly, we conclude that (1) Wright had a per se conflict of
interest that disqualified his entire office and (2) the appropriate remedy is a reversal of the
dismissal of defendant’s petition.
¶ 56 In reaching this determination, we emphasize the narrowness of our ruling. The
Sangamon County State’s Attorney’s Office is disqualified because Wright (1) was deeply
involved with defendant’s case and had numerous substantive conversations with him about his
case, (2) became the state’s attorney in charge of the entire office before the case was remanded
for further postconviction proceedings, and (3) represented both the State and defendant in the
same postconviction proceedings. If any of these factors were not present, the outcome may well
have been different. See, e.g., People v. Price, 196 Ill. App. 3d 321, 324, 553 N.E.2d 760, 762
(1990) (distinguishing Courtney and finding no conflict where the defendant’s former counsel
- 14 - became an assistant state’s attorney, had not had any communication about the case with the
office, and was appropriately screened to ensure no communication would occur in the future).
¶ 57 Finally, based on our review of the record, the trial court’s decision to grant
Young’s motion to withdraw was supported and did not appear to be particularly influenced by
the comments from the State. Accordingly, on remand, we leave it to the trial court’s sound
discretion whether to appoint new postconviction counsel or vacate Young’s withdrawal.
¶ 58 On remand, the trial court should appoint a special prosecutor and direct that the
special prosecutor refrain from communicating with the Sangamon County State’s Attorney’s
Office about the case.
¶ 59 III. CONCLUSION
¶ 60 For the reasons stated, we reverse the trial court’s judgment and remand the case
for further second-stage proceedings conducted in accordance with directions provided in this
order.
¶ 61 Reversed and remanded with directions.
- 15 -