People v. Fields , 980 N.E.2d 35 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Supreme Court
People v. Fields, 2012 IL 112438
Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ALBERT
Court: L. FIELDS, Appellee.
Docket No. 112438
Filed September 20, 2012
Modified Upon Denial
of Rehearing November 26, 2012
Held Defense counsel did not have a per se conflict of interest when the State,
(Note: This syllabus in attempting to show propensity for sex crimes, called as a witness a
constitutes no part of young female who had been the victim of a different sex offense by the
the opinion of the court defendant and counsel had been her guardian ad litem in an unrelated
but has been prepared earlier matter.
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Appellate Court for the Third District; heard in that
Review court on appeal from the Circuit Court of Henry County, the Hon. Larry
S. Vandersnick, Judge, presiding.
Judgment Appellate court judgment reversed.
Cause remanded.
Counsel on Lisa Madigan, Attorney General, of Springfield, and Terence Patton,
Appeal State’s Attorney, of Cambridge (Michael A. Scodro, Solicitor General,
and Michael M. Glick and Michael R. Blankenheim, Assistant Attorneys
General, of Chicago, and Patrick Delfino, Stephen E. Norris and Patrick
D. Daly, of the Office of the State’s Attorneys Appellate Prosecutor, of
Mt. Vernon, of counsel), for the People.
Michael J. Pelletier, State Appellate Defender, Peter A. Carusona, Deputy
Defender, and Glenn Sroka, Assistant Appellate Defender, of the Office
of the State Appellate Defender, of Ottawa, for appellee.
Justices JUSTICE THOMAS delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Freeman, Garman, Karmeier, Burke,
and Theis concurred in the judgment and opinion
OPINION
¶1 Following a jury trial, defendant, Albert L. Fields, was convicted of two counts of
predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2006)), three
counts of criminal sexual assault (720 ILCS 5/12-13(a)(1), (a)(3) (West 2006)), and two
counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(b) (West 2006)). Defendant
was sentenced to 36 years’ imprisonment. Defendant appealed, contending that he had been
denied the effective assistance of counsel because his trial attorney labored under a per se
conflict of interest. A divided appellate court agreed, reversing defendant’s convictions and
sentence, and remanding for a new trial. 409 Ill. App. 3d 398.
¶2 This court allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26,
2010). We now reverse the judgment of the appellate court.
¶3 BACKGROUND
¶4 Defendant was charged by information in January 2007. Specifically, the information
charged predatory criminal sexual assault in that between 1999 and October 27, 2004,
defendant, who was age 17 or older, on two separate occasions placed his penis in the mouth
of his stepdaughter, K.N.J., when she was younger than 13. The information charged
criminal sexual assault in that between 1999 and February 2006, defendant, on two separate
occasions, placed his penis in the mouth of K.N.J. by the use of force or threat of force. The
information charged two counts of criminal sexual assault occurring between 1999 and
February 2006, in that defendant, on two separate occasions, placed his penis in K.N.J.’s
mouth when she was younger than 18 and he was her stepfather. Finally, the information
charged that between 2001 and February 2006, defendant committed aggravated criminal
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sexual abuse in that defendant fondled K.N.J.’s breasts and vagina, and made her fondle his
penis, for his sexual arousal and gratification, when K.N.J. was younger than 18 and he was
her stepfather. The public defender of Henry County was appointed to represent defendant.
¶5 Prior to trial, the State moved to introduce other-crimes evidence pursuant to section 115-
7.3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-7.3 (West 2006)). The State
sought to introduce evidence that defendant had sexually abused another child, in order to
show that defendant had a propensity to commit sex crimes. The State’s section 115-7.3
motion alleged that, in 2007, defendant had been convicted in the circuit court of Rock Island
County of the aggravated criminal sexual abuse of C.S., a nine-year-old girl. The trial court
granted the State’s motion, ruling that the State could present testimony about the prior
crime, along with a certified copy of defendant’s conviction for that crime.
¶6 Thereafter, defendant filed a complaint against his attorney with the Illinois Attorney
Registration and Disciplinary Commission. The trial court allowed defendant’s attorney to
withdraw from the case, and appointed Edward Woller to represent defendant. Woller had
represented defendant before, including representing defendant in the Rock Island County
case.
¶7 Defendant’s jury trial commenced on June 5, 2008. At defendant’s trial, a certified copy
of defendant’s conviction of aggravated criminal sexual abuse against C.S. in the Rock Island
County case was admitted into evidence on the issue of defendant’s propensity to commit
the offenses for which he was charged in the instant case.1 In addition, C.S. testified that in
2005, defendant sexually abused her when he was living with her and her mother in Moline,
Illinois. C.S. said that she was nine years old at the time. C.S. testified that one morning,
defendant gave her a book containing pictures of naked girls “showing their private parts,”
and told C.S. to put the book on his weight set in the basement. Defendant then followed
C.S. into the basement. Defendant pulled down his pants, grabbed C.S.’s hand, put C.S.’s
hand on his “wee wee,” and made C.S. rub it until he ejaculated. Defendant also put his hand
down C.S.’s pants and stuck his finger inside her. Defendant then pushed C.S. down on the
ground and told her “to suck his wee wee.” C.S. refused. Defendant told C.S. if she told
anyone, he would beat her and ground her. After defendant had kicked C.S. and her mother
out of the house, C.S. told her mother about the abuse.
¶8 K.N.J., defendant, and several other witnesses also testified at defendant’s trial. At the
conclusion of his jury trial, defendant was convicted on all counts concerning K.N.J. The
trial court denied defendant’s motion for a new trial. After vacating defendant’s three
criminal sexual assault convictions on one-act, one-crime grounds, the trial court imposed
consecutive sentences of 18 years’ imprisonment for each conviction of predatory criminal
sexual assault of a child, and concurrent sentences of six years’ imprisonment for each
1
Defendant’s conviction for the aggravated criminal sexual abuse of C.S. in the Rock Island
County case was reversed on July 20, 2010. People v. Fields, No. 3-07-0305 (2010) (unpublished
order under Supreme Court Rule 23). The appellate court in the Rock Island County case found that
defense counsel labored under a per se conflict of interest because he had previously represented
C.S., the victim in the case, and defendant did not waive the conflict.
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conviction of aggravated criminal sexual abuse.
¶9 Defendant then appealed, arguing that his attorney, Woller, had a per se conflict of
interest because Woller had served as a guardian ad litem for C.S. in a case that ended in
2002 or 2003. Woller had disclosed that fact during pretrial proceedings in the Rock Island
County case, but did not disclose his prior representation of C.S. in the instant case. The
guardian ad litem proceedings were unrelated to either of the criminal cases brought against
defendant. Defendant claimed that the cause should be remanded for a new trial because of
the per se conflict of interest.
¶ 10 A majority of the appellate court agreed. The appellate court, citing this court’s decisions
in People v. Taylor, 237 Ill. 2d 356 (2010), and People v. Hernandez, 231 Ill. 2d 134 (2008),
noted that there are three situations where a per se conflict of interest 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 in the prosecution of the defendant. 409 Ill. App. 3d at
401. The majority held that C.S. was an entity assisting the prosecution, as set forth in the
first situation, so that defense counsel’s prior association with C.S. constituted a per se
conflict of interest. Id. at 402. The appellate court rejected the State’s argument that “entity”
applied only to a municipality, rather than a person. Id. at 403.
¶ 11 The majority also held that even if C.S. was not an “entity” for purposes of finding a per
se conflict of interest, defendant’s conviction nonetheless had to be reversed because C.S.
would benefit from an unfavorable verdict for defendant. 409 Ill. App. 3d at 404. The
majority noted that in Hernandez, 231 Ill. 2d at 142, this court held that when a defendant’s
attorney has a tie to a person or entity that would benefit from an unfavorable verdict for the
defendant, a per se conflict of interest arises. 409 Ill. App. 3d at 404.
¶ 12 The majority found that there were three intangible benefits to C.S. that would result
from an unfavorable verdict for the defendant. First, C.S. would benefit from having her
assailant incarcerated. 409 Ill. App. 3d at 405. Second, defendant’s conviction for the same
crime against another young girl would validate C.S.’s own claim of sexual abuse against
defendant. Id. Third, assisting the State in convicting defendant would allow C.S. the
opportunity to help another young girl who had been subjected to the same horrific behavior
that C.S. had to endure. Id. The majority stated that they could not assert with any confidence
that defense counsel’s representation of defendant was not hobbled, fettered, or restrained
by his prior commitments to C.S. Id.
¶ 13 Justice Schmidt dissented. 409 Ill. App. 3d at 406 (Schmidt, J., dissenting). Justice
Schmidt stated that the majority’s finding that C.S. was an entity assisting the prosecution
rendered superfluous the second category of conduct that gave rise to a per se conflict of
interest: where defense counsel contemporaneously represents a prosecution witness. Id.
Under the majority’s holding, any representation that falls under the second category would
necessarily also fall under the first category. Id. Justice Schmidt further stated that the
majority’s holding ignored this court’s precedent, namely, People v. Enoch, 146 Ill. 2d 44
(1991), where this court stated that defense counsel’s prior representation of a State’s witness
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does not establish a per se conflict of interest between defense counsel and a defendant. Id.
at 406-07.
¶ 14 ANALYSIS
¶ 15 The State now appeals, arguing that defense counsel’s past representation of C.S. did not
create a per se conflict of interest. Like the appellate court dissent, the State argues that the
majority’s holding is contrary to a line of cases where our court has held that a per se conflict
of interest exists only if the professional relationship between defense counsel and the
witness is contemporaneous with defense counsel’s representation of the defendant. The
State notes that, in this case, Woller’s representation of C.S. ended in 2002 or 2003, well
before Woller’s representation of defendant in the instant case began in 2007. Consequently,
Woller did not have a contemporaneous conflicting professional commitment to C.S. that
disqualified him from representing defendant.
¶ 16 The State further contends that the majority’s finding that C.S. was an “entity assisting
the prosecution” is contrary to this court’s precedent which establishes that an “entity
assisting the prosecution” encompasses only organizational clients.
¶ 17 Finally, the State argues that the majority’s alternative holding that C.S. was a beneficiary
of defendant’s conviction rests on impermissible speculation. According to the State, under
the appellate court’s general definition of the benefits C.S. allegedly received from
defendant’s conviction, almost all prosecution witnesses would be considered beneficiaries
of a guilty verdict. It is well settled that a criminal defendant’s sixth amendment right to
effective assistance of counsel includes the right to conflict-free representation. Taylor, 237
Ill. 2d at 374. There are two categories of conflict of interest: per se and actual. Id. A per se
conflict of interest exists where certain facts about a defense attorney’s status, by themselves,
engender a disabling conflict. Id. Stated otherwise, a per se conflict arises when a
defendant’s attorney has a tie to a person or entity that would benefit from an unfavorable
verdict for the defendant. Hernandez, 231 Ill. 2d at 142.
¶ 18 As the appellate court stated, this court has found 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.
Taylor, 237 Ill. 2d at 374; Hernandez, 231 Ill. 2d at 143-44. If a per se conflict is found, a
defendant need not show that the conflict affected the attorney’s actual performance. Taylor,
237 Ill. 2d at 374-75. Unless a defendant waives his right to conflict-free representation, a
per se conflict is automatic grounds for reversal. Taylor, 237 Ill. 2d at 375.
¶ 19 When the record shows that the facts are undisputed, the issue of whether a per se
conflict exists is a legal question that this court reviews de novo. Hernandez, 231 Ill. 2d at
144. Here, the facts concerning Woller’s representation of defendant and C.S. are undisputed.
Accordingly, our review of the appellate court’s decision finding a per se conflict is de novo.
¶ 20 Upon review, we find that the appellate court majority erred in holding that a per se
conflict of interest existed in this case. Illinois supreme court case law has clearly and
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consistently held that, in cases where defense counsel has represented a State’s witness, a per
se conflict of interest will not be held to exist unless the professional relationship between
the attorney and the witness is contemporaneous with defense counsel’s representation of the
defendant.
¶ 21 Thus, in People v. Robinson, 79 Ill. 2d 147, 161 (1979), the court noted that defense
counsel had a conflict of interest because the attorney still had an active attorney client
relationship with a prosecution witness. In so holding, Robinson found that the case before
it was consistent with United States v. Jeffers, 520 F.2d 1256 (7th Cir. 1975), where the court
rejected a claim that defense counsel’s prior representation of a prosecution witness in an
earlier criminal trial constituted a conflict of interest. The Robinson court noted that, in
contrast to the case before it, there was no existing personal relationship between the defense
attorney and the prosecution witness at the time of the defendant’s trial in Jeffers. Robinson,
79 Ill. 2d at 161.
¶ 22 Thereafter, in People v. Free, 112 Ill. 2d 154, 168 (1986), the court again stated that:
“In a situation where defense counsel has represented a State’s witness, a per se
conflict of interest will not be held to exist unless the professional relationship
between the attorney and the witness is contemporaneous with counsel’s
representation of the defendant.”
¶ 23 The assistant public defender representing the defendant in Free had previously
represented a witness who testified adversely to the defendant at a hearing on a motion to
suppress prior to defendant’s trial. The court held that defense counsel did not have a per se
conflict of interest, even though the record did not formally show when defense counsel’s
representation of the witness had ended. The court concluded:
“[I]t would be unreasonable under the circumstances to presume that the assistant
public defender had a continuing professional relationship with [the witness] after
[the witness’s] testimony was suppressed. That [the witness’s] testimony was
suppressed before the defendant’s trial and that [defense counsel] did not undertake
the representation of [defendant] until the post-conviction petition was filed supports
the notion he no longer represented [the witness].” Free, 112 Ill. 2d at 168-69.
¶ 24 As noted, subsequent cases consistently have held that a per se conflict exists where
defense counsel contemporaneously represents a prosecution witness. See Taylor, 237 Ill. 2d
at 374 (one of three situations where per se conflict exists is where defense counsel
contemporaneously represents a prosecution witness); Hernandez, 231 Ill. 2d at 143 (one of
three situations where per se conflict exists is where defense counsel contemporaneously
represents a prosecution witness); People v. Morales, 209 Ill. 2d 340, 346 (2004) (court has
“found a per se conflict when defense counsel contemporaneously represented a prosecution
witness”); People v. Moore, 189 Ill. 2d 521, 538 (2000) (“per se conflict of interest exists
where defense counsel engages in a contemporaneous representation of the defendant and
the State’s witness”); Enoch, 146 Ill. 2d at 52 (where defense counsel has previously
represented a prosecution witness, a per se conflict of interest exists if the professional
relationship between the defense attorney and the witness is contemporaneous with defense
counsel’s representation of the defendant); People v. Thomas, 131 Ill. 2d 104, 111 (1989)
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(where defense counsel has represented a State’s witness, a per se conflict exists if the
professional relationship between defense counsel and the witness is contemporaneous with
counsel’s representation of defendant); People v. Flores, 128 Ill. 2d 66, 83 (1989) (where
defense counsel has represented a prosecution witness, per se conflict of interest exists if the
professional relationship between the defense attorney and the witness is contemporaneous
with counsel’s representation of the defendant).
¶ 25 Notably, in none of the preceding cases did the court hold that a defense counsel’s prior
representation of a prosecution witness constituted a per se conflict of interest. Nor did any
of those decisions find that the prosecution witness was an “entity assisting the prosecution.”
The law is clear. A per se conflict of interest will be found where defense counsel’s
representation of a prosecution witness is contemporaneous with defense counsel’s
representation of the defendant. Here, Woller’s representation of C.S. had ended four to five
years prior to his representation of defendant. Accordingly, Woller’s representation of C.S.
was not contemporaneous with his representation of defendant and did not present a per se
conflict of interest.
¶ 26 The appellate court acknowledged that Woller’s representation of C.S. was not
contemporaneous with his representation of defendant, for purposes of the second situation
where a conflict of interest will be found. Nonetheless, the appellate court majority found
even though Woller’s representation of C.S. was not contemporaneous with his
representation of defendant, a per se conflict of interest existed because C.S. was an “entity
assisting the prosecution,” as set forth in the first situation where a per se conflict of interest
will be found. In contrast to the second situation, the first situation where a per se conflict
of interest will be found includes defense counsel’s prior association, as well as his
contemporaneous association, with the victim, the prosecution, or an entity assisting the
prosecution.
¶ 27 The appellate court stated that C.S. clearly was “assisting the prosecution” because she
was testifying for the State against the defendant. 409 Ill. App. 3d at 401. Accordingly, the
appellate court addressed whether C.S. could be characterized as an entity, or whether this
court intended that only a municipality, organization or company could qualify as an entity.
¶ 28 In addressing this issue, the appellate court noted that there was no authority expressly
defining the term “entity” in the context of a per se conflict of interest. 409 Ill. App. 3d at
401. Consequently, the appellate court looked to dictionary definitions of the term “entity,”
to ascertain the plain and ordinary meaning of the term. The court noted that both West’s
Legal Thesaurus and Dictionary and Black’s Law Dictionary defined “entity” to include both
an organization and an individual. Id. at 402. The majority therefore concluded that this court
“chose to use the term ‘entity’ in order to incorporate both individuals and organizations.”
Id.
¶ 29 The appellate court erred in so holding. As discussed, this court has always held that a
defense counsel’s representation of a prosecution witness constitutes a per se conflict of
interest when the representation is contemporaneous with defense counsel’s representation
of the defendant, but is not a per se conflict of interest when defense counsel’s representation
of the witness is prior to counsel’s representation of defendant. We again point out that, in
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contrast, the first situation where a per se conflict of interest exists encompasses defense
counsel’s prior or contemporaneous association with the victim, the prosecution or an entity
assisting the prosecution. Given that defense counsel’s prior representation of a prosecution
witness does not constitute a per se conflict of interest, while his prior association with an
entity assisting the prosecution does constitute a per se conflict, a prosecution witness
necessarily cannot also be an “entity assisting the prosecution.” As both the appellate court
dissent and the State asserted, to find that an individual is an entity would render superfluous
the second situation where a per se conflict exists.
¶ 30 Moreover, although the appellate court is correct that this court has never expressly
defined the term “entity,” it was unnecessary to do so because our case law has always
recognized a difference between a person and an entity in the context of per se conflicts of
interest. For example, in People v. Spreitzer, in discussing per se conflicts of interest, the
court noted that “[t]he justification for treating these conflicts as per se has been that the
defense counsel in each case had a tie to a person or entity—either counsel’s client,
employer, or own previous commitments—which would benefit from an unfavorable verdict
for the defendant.” (Emphasis added.) People v. Spreitzer, 123 Ill. 2d 1, 16 (1988). The court
reiterated this distinction in People v. Kitchen, 159 Ill. 2d 1, 29 (1994), citing Spreitzer for
the rule that “a per se conflict of interest exists in instances where defense counsel had an
association with the prosecution or victim, or with a person or entity who would benefit from
the defendant’s prosecution.” (Emphasis added.) One year later, in People v. Janes, 168 Ill.
2d 382, 387 (1995), the court again stated, “[a] per se conflict of interest arises where
defense counsel has a tie to a person or entity which would benefit from an unfavorable
verdict for the defendant.” (Emphasis added.) The distinction between person and entity was
repeated in Moore, when the court observed that “per se conflicts involve situations where
defense counsel has some tie to a person or entity that would benefit from an unfavorable
verdict for the defendant.” (Emphasis added.) Moore, 189 Ill. 2d at 538. As recently as 2008,
the court again stated that a per se conflict arises “[w]hen a defendant’s attorney has a tie to
a person or entity that would benefit from an unfavorable verdict for the defendant.”
(Emphasis added.) Hernandez, 231 Ill. 2d at 142.
¶ 31 In addition, as the State points out, the only case where this court has held that defense
counsel’s representation of an “entity assisting the prosecution” created a per se conflict of
interest involved a defense attorney who simultaneously represented the defendant and also
served as a part-time attorney for the municipality where the defendant was being prosecuted.
See People v. Washington, 101 Ill. 2d 104 (1984). The State notes, as it did in the appellate
court, that in People v. Lawson, the court cited Washington as an example of an entity
assisting the prosecution. See People v. Lawson, 163 Ill. 2d 187, 211 (1994) (“[t]he common
element in these [per se] cases was that the defense counsel was previously or
contemporaneously associated with either the victim (Stoval, Coslet), the prosecution (Fife,
Kester), or an entity assisting the prosecution (Washington)”).
¶ 32 The appellate court majority dismissed the State’s contention that the decisions in
Washington and Lawson demonstrate that the phrase “entity assisting the prosecution” was
intended to encompass only organizational clients. The majority stated that the “supreme
court may have intended to draw the distinction urged by the State, but the simple citation
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to an example does not compel that conclusion.” (Emphasis in original.) 409 Ill. App. 3d at
403.
¶ 33 Although the majority is correct that a “simple citation” may not compel that conclusion,
when considered with all supreme court precedent addressing per se conflicts of interests,
it is clear that such a conclusion is, in fact, compelled. The only supreme court case to find
a per se conflict involving “an entity assisting the prosecution” is a case involving a
municipality. With regard to prosecution witnesses, this court has recognized an entirely
separate situation where a per se conflict of interest exists. In addition, this court has always
distinguished between person and entity in discussing per se conflict cases. Taken together,
there is no doubt that this court intended to draw the distinction urged by the State: that an
entity does not include a person for purposes of per se conflicts of interest. The appellate
court majority erred in holding otherwise.
¶ 34 We also briefly address the majority’s attempts to distinguish the decisions in Enoch and
Flores, where our court held that a per se conflict of interest does not arise from defense
counsel’s prior representation of a State witness. The appellate court found those cases
distinguishable because neither case “dealt with the conflict category at issue in the present
case, specifically, an entity assisting the prosecution.” 409 Ill. App. 3d at 403. Rather, “both
dealt with the conflict category of whether defense counsel contemporaneously represented
a prosecution witness.” (Emphasis in original.) Id. The appellate court also distinguished
Enoch and Flores on the ground that the potential conflicts in those cases were disclosed to
the trial court. Id. at 403-04.
¶ 35 The appellate court’s attempts to distinguish Enoch and Flores are unavailing. It is
because those cases dealt with the conflict category of whether defense counsel
contemporaneously represented a prosecution witness that they are directly on point. Those
cases did not address the category of entity assisting the prosecution because there was no
need to do so. In addition, it was the fact that defense counsel’s representation of the
prosecution witness was prior to his representation of the defendant that eliminated any per
se conflict in that case, not the fact that any potential conflict was disclosed to the trial court.
Enoch and Flores are directly on point. Defense counsel’s prior representation of C.S. in this
case did not create a per se conflict of interest.
¶ 36 Before we turn to the appellate court’s second reason for finding that there was a per se
conflict in this case, we address defendant’s response to the State’s claim that the appellate
court’s holding would render superfluous the situation concerning defense counsel’s
representation of a prosecution witness. Defendant argues that the State has “missed the
forest for the trees” because this court has never stated that there are three mutually exclusive
categories of per se conflicts, nor has this court held that there can never be additional
situations where a per se conflict can be found to exist.
¶ 37 While this court may never have expressly stated that the three situations giving rise to
a per se conflict of interest are distinct, as we discussed supra, it is clear that the nature of
the first and second per se conflict situations necessarily renders them distinct. If an entity
assisting the prosecution includes prosecution witnesses, there would be no need to recognize
the second situation where a per se conflict of interest exists, nor would there be any
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consistency in holding that only defense counsel’s contemporaneous representation of a
prosecution witness constitutes a per se conflict of interest. Further, because this case
involves defense counsel’s representation of a prosecution witness, which is addressed in the
second situation where a per se conflict of interest will be found, there is no need to consider
whether defendant is correct that additional situations might be found where a per se conflict
of interest exists.
¶ 38 We also note that defendant was not left without recourse in this case. If defendant
believed that his attorney’s prior representation of C.S. constituted a conflict of interest,
defendant could have argued that his counsel had an actual conflict of interest. “If a per se
conflict does not exist, a defendant may still establish a violation of his right to effective
assistance of counsel by showing an actual conflict of interest that adversely affected his
counsel’s performance.” Hernandez, 231 Ill. 2d at 144.
¶ 39 We next address the appellate court’s alternate basis for reversing defendant’s conviction
in this case. The appellate court majority held that even if C.S. was not an entity assisting the
prosecution, reversal of defendant’s conviction was still required because C.S. would benefit
from an unfavorable verdict for defendant. As support, the majority cites this court’s
decisions in Hernandez and Janes as holding that, “when a defendant’s attorney has a tie to
a person or entity that would benefit from an unfavorable verdict for the defendant, a per se
conflict arises.” 409 Ill. App. 3d at 404. As noted, the appellate court found there were three
intangible benefits to C.S. in having defendant convicted of sexually abusing K.N.J. which
gave rise to a per se conflict of interest.
¶ 40 The appellate court is correct that this court has stated, “[w]hen a defendant’s attorney
has a tie to a person or entity that would benefit from an unfavorable verdict for the
defendant, a per se conflict arises.” Hernandez, 231 Ill. 2d at 142 (citing Janes, 168 Ill. 2d
at 387). Contrary to the appellate court’s interpretation, however, that statement does not set
forth an additional, fourth situation where a per se conflict of interest might be found, nor
does it provide an alternate basis for finding a per se conflict of interest. Rather, the
statement describes the justification for the per se rule. After noting that a per se conflict
arises when a defendant’s attorney has a tie to a person or entity that would benefit from an
unfavorable verdict for the defendant, the Hernandez court continued:
“We explained the justification underlying the per se rule in Spreitzer. First, we
noted that counsel’s knowledge that a result favorable to his other client or
association would inevitably conflict with defendant’s interest ‘might “subliminally”
affect counsel’s performance in ways [that are] difficult to detect and demonstrate.’
Spreitzer, 123 Ill. 2d at 16. Also, we noted the possibility that counsel’s conflict
would subject him to ‘ “later charges that his representation was not completely
faithful.” [Citations.]’ Spreitzer, 123 Ill. 2d at 17.” Hernandez, 231 Ill. 2d at 143.
Once the Hernandez court set forth the justification for the per se conflict rule, the court then
identified the three situations where a per se conflict exists.
¶ 41 The appellate court erred in construing the justification for the per se conflict rule as
creating an additional, alternate basis for finding a per se conflict in this case. Pursuant to
long-standing precedent, this court has recognized three situations where a per se conflict of
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interest exists. The facts in this case potentially implicate the second situation because
Woller previously had represented the prosecution witness. However, Woller’s
representation of C.S. had ended three to four years prior to his representation of defendant.
Accordingly, Woller did not contemporaneously represent C.S. and the defendant. There
was, then, no per se conflict in this case, and no basis to reverse defendant’s conviction and
sentence.
¶ 42 CONCLUSION
¶ 43 For all of the foregoing reasons, we reverse the appellate court’s decision. The cause is
remanded to the appellate court for consideration of those issues previously raised but left
unresolved owing to that court’s disposition.
¶ 44 Appellate court judgment reversed.
¶ 45 Cause remanded.
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