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No. 2--01--0101

Defendant, David Friend, pleaded guilty to possessing acontrolled substance with intent to deliver (720 ILCS570/401(a)(1)(A) (West 1998)). The trial court denied defendant'smotion to withdraw the plea and defendant appeals, arguing that hisattorney labored under a conflict of interest during the postpleaproceedings because defendant had questioned his competency.

Defendant was charged with possession of a controlledsubstance with intent to deliver and possession of cannabis. During pretrial proceedings, he was represented by three differentattorneys. While represented by the last of these, ManosKavvadias, defendant pleaded guilty to possession with intent todeliver. There was no agreement about a sentence. We reverse andremand.

Before sentencing, Kavvadias filed a motion to withdrawdefendant's guilty plea. The motion alleged, inter alia, thatdefendant had been "forced into a plea of guilty." At a hearing,Kavvadias explained that he filed the motion based on defendant'sstatements in the presentence report. There, defendant stated thathe had been "blackmailed" into pleading guilty and questioned thequality of Kavvadias's representation.

Kavvadias referred the court to a section of the presentencereport entitled "Defendant's Attitude Toward Offense," containingdefendant's verbatim statements, and invited the court to questiondefendant. The court replied that the motion lacked any specificallegations to show that the plea was coerced. The court deniedthe motion, finding no reason to believe that defendant "wasoperating under any type of misapprehension of law or fact." Thecourt focused on the last paragraph of defendant's statement inwhich he said, "I plead guilty hoping to get lienecy [sic]." Thecourt observed that not getting a lenient sentence was not asufficient reason to withdraw a plea.

Two weeks later, the court sentenced defendant to 10 years'imprisonment. Defendant then renewed his motion to withdraw theplea. The court again denied the motion and defendant timelyappeals.

Defendant contends that he should receive a new hearing on hismotion because Kavvadias should have withdrawn as his counsel whenhe realized that defendant was criticizing his performance. Defendant cites People v. Willis, 134 Ill. App. 3d 123, 131 (1985),People v. Fields, 88 Ill. App. 3d 821, 823 (1980), and People v.Norris, 46 Ill. App. 3d 536, 541 (1977). Those cases held that anattorney should move to withdraw when the client criticizes his orher representation.

In Fields, the defendant complained after his bench trial thathis lawyer failed to call certain witnesses, but the same attorneycontinued to represent him during posttrial proceedings. Recognizing that the attorney labored under a conflict of interest,the court ordered a new hearing on the defendant's posttrialmotion. Fields, 88 Ill. App. 3d at 823. In Willis, this court inremanding the cause for a new hearing observed that an attorneyforced to argue his own ineffectiveness "must be seen as laboringunder divided loyalties." Willis, 134 Ill. App. 3d at 131.

This case is similar to Willis, Fields, and Norris in thatKavvadias presented a motion to withdraw the guilty plea thatincorporated defendant's allegations of Kavvadias' ineffectiverepresentation. Kavvadias should have moved to withdraw when herealized that defendant was questioning his professional judgment.

The State does not attempt to distinguish these cases, butresponds with a three-pronged attack. First, the State argues thatdefendant's guilty plea waived his contentions. Second, itcontends that, regardless of Kavvadias's conflict of interest, thetrial court independently evaluated defendant's allegations ofineffective representation. Third, the State maintains that thecourt properly found those allegations to be without merit.

We can briefly dispose of the State's first argument. According to the State, a guilty plea waives any claim of adeprivation of constitutional rights that occurred prior to theguilty plea. See Tollett v. Henderson, 411 U.S. 258, 267, 36 L.Ed. 2d 235, 243, 93 S. Ct. 1602, 1608 (1973). This includesallegations that defense counsel labored under a conflict ofinterest. People v. Canales, 86 Ill. App. 3d 738, 741-42 (1980). These cases do not apply here for the simple reason that theclaimed conflict of interest arose after defendant entered hisplea. Defendant claims that Kavvadias had a conflict of interest in arguing the postplea motion, and in this appeal merely seeks anew hearing on that motion. Defendant's plea did not waive hisright to assert a constitutional deprivation that occurred afterthe plea was entered.

Next, the State asserts that the trial court independentlyevaluated defendant's allegations, thus rendering moot any conflictof interest of defense counsel. The State cites cases holding thatwhere a defendant raises pro se allegations of ineffectiveassistance, the court should conduct a preliminary investigation todetermine whether the charges have arguable merit. If the courtfinds that the claims lack merit or pertain only to trial strategy,the court may deny the motion without appointing new counsel. SeePeople v. Cabrales, 325 Ill. App. 3d 1, 5 (2001). The Statecontends that this is essentially what happened here. We disagree.

Initially, the State questions whether these cases applybecause it was Kavvadias, rather than defendant, who broughtdefendant's allegations to the court's attention. We find this adistinction without a difference. It is clear that Kavvadias waslittle more than a conduit to convey defendant's statements to thetrial court; he neither physically incorporated the statements intohis motion nor argued their merits to the court. In practicalterms, the court was faced with nothing more than defendant's prose allegations.

It is clear that the trial court did not adequatelyinvestigate defendant's allegations. The supreme court recentlyreiterated that when a defendant presents a posttrial ineffectiveassistance of counsel claim, the trial court should first examinethe claim's factual basis and, if the allegations show the possibleneglect of the case, appoint new counsel. People v. Moore, No.87958, slip op. at 8 (May 22, 2003); see also People v. Chapman,194 Ill. 2d 186, 230 (2000); People v. Munson, 171 Ill. 2d 158,199-200 (1996). The court explained the reasons for the procedureas follows:

"The new counsel would then represent the defendant at thehearing on the defendant's pro se claim of ineffectiveassistance. [Citations.] The appointed counsel canindependently evaluate the defendant's claim and would avoidthe conflict of interest that trial counsel would experienceif trial counsel had to justify his or her actions contrary todefendant's position." Moore, slip op. at 8.

In Moore, the trial court did not conduct any inquiry into thedefendant's allegations. Apparently misunderstanding the basis ofthe defendant's motion, the court believed that it could grant therequested relief by appointing the appellate defender to representthe defendant on appeal. Moore, slip op. at 9. The supreme courtemphasized that the trial court had to conduct some type of inquiryand remanded the cause for that purpose. Moore, slip op. at 9.

Here, too, the trial court conducted no inquiry intodefendant's allegations of ineffective assistance of counsel. Thecourt did not discuss the substance of the claims with Kavvadiasand did not question defendant about his claims although he wasavailable for that purpose. Instead, focusing on one sentence fromdefendant's statement, the court concluded that defendant pleadedguilty in the hope of obtaining leniency, which was not a validreason to withdraw the plea. This was not the type of inquirycontemplated by Moore and its progenitors.

The State also contends, however, that any error that didoccur was harmless because defendant's allegations clearly lackmerit. Again, we disagree.

The State focuses on defendant's statements that Kavvadias"Blackmailed me into pleading guilty with me getting more time ifI go to trail [sic]" and "I plead guilty hoping to get lienecy[sic]." The State takes these statements to mean that defendant,facing the inevitably difficult choices of one charged with seriouscrimes, followed his lawyer's advice and pleaded guilty, hoping toobtain a favorable sentence. Then, upon being disappointed,defendant blamed his lawyer for the difficult choices he faced.

If defendant's entire statement consisted of those twosentences, we might be inclined to agree with the State'sinterpretation. However, the complete statement, which occupiesfive pages of the presentence report, asserts that Kavvadiascharged him $10,000 for filing motions but did not file any. Afterpaying three lawyers $26,000, much of which was borrowed fromrelatives, defendant "had no choice but to plead guilty under thoseconiditons [sic]."

The allegations that defendant paid his lawyer for motionsthat were never filed, leaving him without funds with which tofight the case further, deserve further scrutiny. If true, theywould tend to show that defendant pleaded guilty because he simplyran out of money to defend the case, which in turn resulted frompaying his lawyers for services that they never performed. Underthese circumstances, we cannot say that the trial court's failureto investigate these allegations was harmless.

We reached a similar result in Cabrales. There, as here, thedefendant moved to withdraw his plea, alleging that he receivedineffective representation. We held that the court's failure to investigate was not harmless. Many of the alleged instances ofineffectiveness occurred outside the trial court's presence. Thus,the court could not have evaluated the defendant's claims solely onthe basis of what it had observed during the proceedings. Cabrales, 325 Ill. App. 3d at 6. Here, too, defendant'sallegations about his relationship with Kavvadias refer toincidents that took place outside the trial court's presence. Thecourt did not attempt to question either Kavvadias or defendantabout the allegations. We cannot say that the trial court properlyrejected defendant's claims without any investigation.

The judgment of the circuit court of Du Page County isreversed, and the cause is remanded for further proceedings.

Reversed and remanded.

BOWMAN and GROMETER, JJ., concur.