2015 IL App (1st) 142057-U
FOURTH DIVISION
December 10, 2015
No. 1-14-2057
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS,

)
Appeal from the
)
Circuit Court of
Plaintiff-Appellee,
)
Cook County.
)
v.
)
No. 96 CR 2723-01
)
RICARDO RODRIGUEZ,
)
Honorable
)
Maura Slattery Boyle,
Defendant-Appellant.
)
Judge Presiding.
_____________________________________________________________________________
PRESIDING JUSTICE McBRIDE delivered the judgment of the court.
Justices Howse and Cobbs concurred in the judgment.
ORDER
¶1

Held: The trial court erred in disqualifying defendant's counsel to represent him in
postconviction proceedings and on remand the case is to be assigned to a different
trial court judge.

¶2

Defendant Ricardo Rodriguez appeals from the trial court's order disqualifying The

Exoneration Project at the University of Chicago Law School (the Project) from representing
him during postconviction proceedings. Defendant filed a petition for leave to appeal pursuant
to Supreme Court Rule 306(a)(7) (Ill. S. Ct. R. 306(a)(7) (eff. July 1, 2014)), which this court
granted. On appeal, defendant argues that the trial court abused its discretion in denying him his

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counsel of choice and asks this court to remand with an order to allow the Project to represent
defendant and to assign his case to a different trial court judge.
¶3

Following a bench trial, defendant was found guilty of the first degree murder of Rodney

Kemppainen, the attempted first degree murder of Rodolfo Zaragoza, and the aggravated
discharge of a firearm in the direction of Zaragoza occurring on December 16, 1995. Aurelio
Martinez testified that at the time of the shooting he was standing next to Kemppainen near
Hamlin and North Avenue in Chicago. It was dark outside, but lit by street lights. He observed
a blue two-door car stop in front of them 8 to 10 feet away. The passenger window was down,
there were no passengers, and Martinez was able to see the driver. He identified defendant as the
driver in court. Defendant then fired at least three to four shots at him and Kemppainen.
¶4

Later in December, he viewed a photo array and pointed out defendant, but "was not too

sure about it." A couple days later he viewed a lineup, he recognized defendant and "was sure
about his identification." People v. Rodriguez, No. 1-97-4361 (March 15, 2000) (unpublished
order under Supreme Court Rule 23), slip op. at 4.
¶5

Rodolfo Zaragoza testified that he was crossing North Avenue near Hamlin when he

heard gunshots from Hamlin. He then saw a blue two-door car turn toward him. He stated that
the driver tried to hit him, but he avoided the car. The driver then stopped and Zaragoza saw the
driver, who he identified in court as defendant. Defendant then fired two shots at him. Zaragoza
later identified defendant in a photo array and in a lineup. Id. at 4-5.
¶6

Defendant was subsequently convicted and the trial court sentenced defendant to

consecutive terms of 60 years for first degree murder and 30 years for attempted first degree
murder. In his posttrial motion for a new trial, defendant included an affidavit from Zaragoza in
which he recanted his identification of defendant. The trial court denied defendant's motion. On

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appeal, defendant argued that the trial court erred in denying his motion to quash arrest and
suppress evidence, he was denied effective assistance of counsel, the State failed to prove him
guilty beyond a reasonable doubt, and that his consecutive sentences were improper. The
reviewing court affirmed defendant's conviction, but held that the imposition of consecutive
sentences was improper and remanded for resentencing. Id. at 14.
¶7

In June 2004, defendant filed his initial postconviction petition, alleging (1) ineffective

assistance of trial and appellate counsel, (2) a Brady violation, and (3) police misconduct,
including that Zaragoza asserted that Detective Reynaldo Guevara told Zaragoza who to pick out
in the lineup. The petition was docketed in August 2004. In June 2007, the State filed a motion
to dismiss defendant's postconviction petition. In July 2007, the trial court conducted a hearing
on the State's motion, granting the motion for all claims except the police misconduct. The trial
court granted a third stage evidentiary hearing on the claim of police misconduct.
¶8

In 2010, the case was reassigned to the current trial court judge. In August 2011,

defendant filed his exhibits to his postconviction petition, including testimony and affidavits
relating to Detective Guevara. In August 2012, the State filed its response to defendant's
exhibits. No further action occurred on the case until 2013.
¶9

According to an affidavit from defendant's sister Maria Rodriguez-Lopez, the family had

been paying the legal fees for defendant's postconviction counsel, but in 2011, the family no
longer had the money to pay the attorney's legal fees. In late July 2013, Rodriguez-Lopez
contacted Russell Ainsworth of the Project because he had worked on cases involving Detective
Guevara. The Project is a lawyer-supervised law school clinic operating out of the Mandel Legal
Aid Clinic at the University of Chicago Law School and offers pro bono postconviction
representation to people claiming they were wrongfully convicted of crimes they did not commit.

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Rodriguez-Lopez met with Ainsworth and another attorney, Tara Thompson, a few days later.
Prior to contacting the Project, Rodriguez-Lopez stated that she and defendant contacted several
other attorneys, including groups that offer pro bono services, but none responded. On
September 17, 2013, defendant mailed a letter to his former postconviction attorney stating that
he wanted to change attorneys, listing Thompson at the University of Chicago Law School as his
new attorney. Also in September 2013, Ainsworth and Thompson sought leave of the trial court
to file an appearance on defendant's behalf. At this point, the trial judge issued a subpoena to the
Illinois Department of Corrections regarding defendant. The judge received defendant's visitor
log as well as audio recordings of defendant's telephone conversations.
¶ 10

On March 2014, the trial judge met with defendant's prior postconviction counsel ex

parte in chambers and asked him questions about defendant's decision to change attorneys.
Postconviction counsel stated that he first learned of his termination of representation by
defendant on September 17, 2013. Prior counsel stated that he was told the family felt bad that
they could not pay his legal fees and felt the Project was the way to go. Counsel said he gave the
case files to Thompson and went over it with her. He voiced no objection to defendant's request
to be represented by the Project. Later in proceedings before all parties, the trial judge indicated
her concerns that ethical rules had been violated in regard to representation of defendant when an
attorney talked to another attorney's client. During these proceedings, the State voiced no
objection to the Project representing defendant. At the next court date on March 14, 2014, the
trial judge stated that she had learned that Thompson visited defendant in August 2013 without
prior counsel's knowledge. On that date, the judge stated that prior counsel would remain the
attorney of record.

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¶ 11

On March 28, 2014, defendant filed a motion for substitution of judge transferring this

case and allowing the Project to file an appearance.

1

The motion asserted that defendant's

"unopposed motion to substitute counsel should have been granted without complication."
¶ 12

In an April 2014 letter to the Attorney Registration and Disciplinary Commission

(ARDC), the judge stated that she observed that Thompson visited defendant and signed in as
legal counsel on two occasions, August 9, 2013, and September 12, 2013, without notifying
defendant's postconviction counsel. The judge also stated it appeared that defendant's family met
with Ainsworth and Thompson "at a meeting where other people were invited and who may have
relatives currently incarcerated. It is unclear who arranges these meeting[s] but in any event
these two attorneys were at these meetings." The judge wrote that she "indicated to the parties
its concern of the lack of notification to the current representing attorney for visitation and the
manner in which the new lawyers were introduced to defendant's family." The judge disclosed
that she believed she had a duty to report this incident under In re Himmel, 125 Ill. 2d 531
(1988). In May 2014, Thompson received a letter from the ARDC indicating that it had
considered the trial judge's report and "have determined that no further action by this office is
warranted."
¶ 13

In June 2014, the trial judge disqualified the Project from representing defendant, ordered

prior counsel to remain on the case, stating that it is "well within [her] full discretion to say no
that an individual will not be filing an appearance and the attorney of record will continue with
the case." Ainsworth asked the trial judge for the basis of her denial, the judge responded,
"Because the case has been set for litigation and it is."
¶ 14

This appeal followed.

1

Although not clear from the record on appeal, it appears that this motion was transferred to another judge for a
hearing and was denied.

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¶ 15

Defendant filed a petition for leave to appeal pursuant to Supreme Court Rule 306(a)(7),

which this court granted. Defendant argues that the trial judge abused her discretion in
disqualifying the Project from representing defendant in his postconviction proceedings. The
State filed an answer to the petition, contending that this court lacks jurisdiction to consider the
appeal. If the court has jurisdiction, the State maintained that defendant does not have a
constitutional right to counsel of choice in postconviction proceedings, and even if defendant
does, the trial court has the discretion to have the case proceed in a timely and appropriate
manner. The State did not file a response brief on appeal, but requested to rely on its answer to
the petition for leave to appeal, which this court allowed.
¶ 16

We first address the State's argument that this court lacks jurisdiction to consider

defendant's appeal. Defendant filed his petition for leave to appeal pursuant to Supreme Court
Rule 306(a)(7). Rule 306(a)(7) allows for a petition for leave to appeal to this court "from an
order of the circuit court granting a motion to disqualify the attorney for any party." Ill. S. Ct. R.
306(a)(7) (eff. July 1, 2014). As the State points out, Rule 306 falls under the section detailing
the civil appeals rules.
¶ 17

We note that Supreme Court Rule 651(d) provides, "The procedure for an appeal in a

post-conviction proceeding shall be in accordance with the rules governing criminal appeals, as
near as may be." Ill. S. Ct. R. 651(d) (eff. Feb. 6, 2013). However, "[a] post-conviction
proceeding is not part of the criminal process. Rather, it is a collateral attack on the judgment of
conviction and is civil in nature." People v. Johnson, 191 Ill. 2d 257, 270 (2000). While Rule
651(d) states that postconviction proceedings fall under criminal appeal rules "as near as may
be," we recognize that postconviction proceedings fall between criminal and civil proceedings.
Under the criminal appeal rules, Supreme Court Rule 604(g) offers a similar basis for an

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interlocutory appeal to Rule 306(a)(7), although with a slight limitation. Rule 604(g) states:
"The defendant may petition for leave to appeal to the Appellate Court from an order of the
circuit court granting a motion to disqualify the attorney for the defendant based on a conflict of
interest." Ill. S. Ct. R. 604(g) (eff. Feb. 6, 2013). The State asserts that Rule 604(g) does not
apply in this case because no ruling was made on a motion to disqualify an attorney based on a
conflict of interest.
¶ 18

However, this case is before this court under unusual circumstances. Defendant's initial

postconviction petition has been pending in the trial court since 2004, and has been awaiting a
third stage evidentiary hearing since 2007. Defendant had the assistance of a private attorney
throughout his postconviction proceedings, but has not been able to afford attorney fees since
2011. Defendant and his family sought pro bono representation and the Project agreed to
represent defendant. A motion seeking leave to appear was filed in September 2013. No action
was taken by the State in response to the request, and the State voiced no objection on the record
in proceedings before the trial judge. However, the trial judge sua sponte disqualified the Project
from representing defendant after pursuing an ethics report to the ARDC. We find that under
these particular circumstances the effect of the trial judge's ruling was a disqualification of the
Project as defendant's attorneys based upon a perceived conflict of interest.

We also note that

any error in citing Rule 306(a)(7), rather than Rule 604(g) is of no consequence. "It is well
settled that where the deficiency in the notice of appeal is one of form only and not of substance,
the appellate court is not deprived of jurisdiction." VC & M, Ltd. v. Andrews, 2013 IL 114445, ¶
33; see also O'Banner v. McDonald's Corp., 173 Ill. 2d 208, 211 (1996) (appellant's "citation to
the wrong rule was nothing more than harmless surplusage"). "The relevant question in this case
is not whether [defendant] invoked the correct rule in his notice of appeal. Instead, the question

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is whether there is a rule that provides this court with jurisdiction over the appeal." Dolan v.
O'Callaghan, 2012 IL App (1st) 111505, ¶ 31; see also In re D.D., 212 Ill. 2d 410, 416-17
(2004) (finding appeal perfected and jurisdiction proper despite appellant citing rule for civil
appeals rather than criminal appeals in case involving delinquent minor). Reading Rules
306(a)(7), 604(g), and 651(d) together, we conclude that the language "as near as may be" gives
us jurisdiction to consider the disqualification of the Project from representing defendant. For all
of these reasons, we hold that this court has jurisdiction, and we now turn to the merits of
defendant's appeal.
¶ 19

Defendant argues that the trial court erred in disqualifying the Project and depriving

defendant of the counsel of his choosing. The State contends that defendant does not have a
constitutional right to counsel of choice because he is seeking postconviction relief. While it is
true that a defendant in postconviction proceedings does not have a sixth amendment right to
counsel, only a statutory right to counsel (725 ILCS 5/122-4 (West 2012)), defendant in this case
is not seeking an appointment of counsel under a constitutional right to counsel. Rather,
defendant has been represented by private counsel throughout his postconviction proceedings,
but he can no longer afford that attorney. Defendant is not asking the court to appoint an
attorney under the Post-Conviction Hearing Act, but has found new representation that has
agreed to represent him free of charge and seeks leave for the Project to appear on his behalf.
Defendant is asserting that the trial court abused its discretion in disqualifying his counsel of
choice from representing him and, therefore, he has been denied his right to counsel of choice.
¶ 20

"The sixth amendment of the United States Constitution guarantees a criminal defendant

the right to the assistance of the counsel of his choice, but that right is subject to certain limits."
People v. Ortega, 209 Ill. 2d 354, 358 (2004) (citing Wheat v. United States, 486 U.S. 153, 159

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(1988)). A trial court's decision to disqualify counsel must be affirmed unless there was an abuse
of discretion. Ortega, 209 Ill. 2d at 359. "Generally, a court abuses its discretion when its
decision is fanciful, arbitrary, or unreasonable to the degree that no reasonable person would
agree with it." Id. "[A] trial court may exercise its discretion to deny a defendant's right to
counsel of choice only if it could reasonably find that defense counsel has a specific professional
obligation that actually does conflict or has a serious potential to conflict with defendant's
interests." Id. at 361.
¶ 21

"The trial court ' "must recognize a presumption in favor of defendant's counsel of

choice." ' " Id. (quoting People v. Holmes, 141 Ill. 2d 204, 223 (1990), quoting Wheat v. United
States, 486 U.S. 153, 164 (1988)). "The question is whether the interests threatened by the
conflict or potential conflict are weighty enough to overcome the presumption." Id. "A court
should seek to fairly consider all the interests that are affected by a conflict in a given case." Id.
at 362.
¶ 22

In the instant case, the trial judge sua sponte disqualified the Project, defendant's counsel

of choice, nine months after the request for leave to appear had been filed and following the
judge's own inquiry into alleged ethics violations. The record shows that the basis of the trial
judge's ethics concern was that Thompson met with defendant twice in prison before prior
counsel had been notified that defendant wanted new representation and without informing prior
counsel of the visits as well as meetings between Ainsworth and Thompson and defendant's
family, possibly attended by other individuals. The trial judge did not refer to any specific rule
alleged to be violated under the Illinois Rules of Professional Conduct in the record or in her
letter to the ARDC.

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¶ 23

In response to the judge's inquiry, the Project referred the trial judge to Rule 4.2 of the

Illinois Rules of Professional Conduct of 2010. Rule 4.2 provides: "In representing a client, a
lawyer shall not communicate about the subject of the representation with a person the lawyer
knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the
other lawyer or is authorized to do so by law or a court order." Ill. R. Prof. Conduct (2010) R. 4.2
(eff. Jan. 1, 2010). Comment 4 to Rule 4.2 clarifies, "Nor does this Rule preclude
communication with a represented person who is seeking advice from a lawyer who is not
otherwise representing a client in the matter." Id. It is undisputed that the Project was not
representing another party to defendant's case. The ARDC found that no ethics violation was
raised and closed the matter.
¶ 24

After the resolution of the ARDC report, the trial judge refused to allow the Project to

represent defendant in his postconviction proceedings, significantly a third stage evidentiary
hearing on a claim of police misconduct. The reason given by the trial judge was that the case
was "set for litigation." While it is "within the trial court's discretion to determine when
defendant's right interferes with the orderly process of judicial administration" (People v.
Antoine, 335 Ill. App. 3d 562, 580 (2002)), the particular circumstances of this case show that
the proceedings were delayed by an ethics inquiry undertaken by the trial judge. The Project did
not seek a continuance or to delay proceedings. Moreover, the extended delay in considering
defendant's postconviction petition of more than a decade is counter to the notion of an "orderly
process of judicial administration." Absent any conflict of interest or ethics violation, we find
that the trial judge abused her discretion in disqualifying the Project from representing defendant
in postconviction proceedings. Accordingly, we vacate the trial judge's order disqualifying the
Project to represent defendant and it is granted leave to appear as defendant's counsel.

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¶ 25

Defendant also asks this court to remand with instructions for the case to be assigned to a

different trial judge. Given the particular circumstances of this case in which the trial judge
engaged in an ethics inquiry of defendant's counsel that was submitted to the ARDC, we find that
the case would be better served if assigned to a new trial judge on remand. Accordingly, we
remand the cause to the presiding judge of the criminal court, with the direction that the case be
assigned to a different trial judge.
¶ 26

Based on the foregoing reasons, we reverse the order denying leave of The Exoneration

Project to appear as counsel for defendant. The cause is remanded to the presiding judge of the
criminal court, with directions that it be assigned to a different trial judge.
¶ 27

Reversed and remanded.

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