Illinois Official Reports

Appellate Court

People v. Alexander, 2019 IL App (4th) 170425

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

ANDRAY DONETA ALEXANDER, Defendant-Appellant.

District & No. Fourth District

No. 4-17-0425

Filed December 17, 2019

Decision Under 

Review

Appeal from the Circuit Court of McLean County, No. 15-CF-1266; 

the Hon. Scott D. Drazewski, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

James E. Chadd, Patricia Mysza, and Christopher G. Evers, of State 

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.
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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 courtappointed 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.