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March 29, 1994


Appeal from the Circuit Court of Lake County. No. 85-CF-895. Honorable Raymond J. McKoski, Judge, Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Quetsch, Geiger, Bowman

The opinion of the court was delivered by: Quetsch

JUSTICE QUETSCH delivered the opinion of the court:

Following a jury trial in the circuit court of Lake County, defendant, Gerald Powers, and a codefendant, Adam Harris, were convicted of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18-2(a) (now 720 ILCS 5/18-2(a) (West 1992) and were both sentenced to 30 years' imprisonment. Defendant appealed, contending that he was not proved guilty beyond a reasonable doubt and that his sentence was excessive. We affirmed defendant's conviction and sentence. ( People v. Powers (1987), 153 Ill. App. 3d 1163, 115 Ill. Dec. 151, 517 N.E.2d 353 (unpublished order under Supreme Court Rule 23).) Thereafter, defendant filed a petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122-1 et seq. (now 725 ILCS 5/122-1 et seq. (West 1992))). In his post-conviction petition, defendant asserted that he was deprived of his right to the effective assistance of counsel at trial, since his attorney's simultaneous representation of codefendant Harris created an impermissible conflict of interest and prevented defendant from testifying on his own behalf. Following an evidentiary hearing, the circuit court denied the petition. Defendant now appeals.

The charges against defendant and Harris stemmed from the robbery of the J & L gas station on July 6, 1985. Anthony Smith was also charged with the robbery, but Smith pleaded guilty and testified on behalf of the State in exchange for an agreed sentence of eight years' imprisonment. Defendant and Harris retained attorney Eugene French to defend them. Initially, French also represented Smith, but the Lake County public defender was appointed to represent Smith prior to the negotiation of his plea agreement.

According to Smith's testimony, early in July 1985, Smith, Harris, and defendant discussed committing a robbery, and on July 6 they devised their plan to rob the J & L gas station. While defendant waited nearby in his car (a gray Datsun), Smith and Harris entered the gas station wearing masks and robbed the attendant at gunpoint. After the robbery, Smith, Harris and defendant drove to a park where the gun and the masks were hidden, and the proceeds of the robbery were divided.

Witnesses observed a rusty gray two-door automobile with a black vinyl roof in the vicinity of the gas station near the time of the robbery. At the time of the robbery, defendant had the use of a friend's automobile, which was a rusty four-door gray Datsun. The vehicle did not have a vinyl roof.

A police officer who questioned defendant testified that defendant had denied any involvement in the robbery. Defendant told the officer that Smith had told defendant he intended to "do a gas station." Smith asked defendant to supply him with a gun, but defendant refused. Neither defendant nor Harris testified at trial. Both presented separate alibi defenses through other witnesses.

In his post-conviction petition, defendant alleged, inter-alia, that he desired to testify at trial but attorney French told him he could not do so because his testimony would incriminate Harris, whom French was also representing. Defendant alleged that had French permitted him to take the stand, he would have denied any involvement in the robbery and would have testified, inter alia, that Harris invited him to participate in the robbery, but he refused. At a joint evidentiary hearing before Judge Raymond J. McKoski on defendant's post-conviction petition and a post-conviction petition filed by Harris, defendant testified that during the preparation of his defense he had informed French that he was not involved with the robbery. Defendant told French that Harris and Smith had asked him to participate in the robbery, but he refused. Defendant indicated that he wanted to testify, but French told him that he could not testify "if Adam Harris and [defendant] were in the same courtroom." French said neither defendant nor Harris could testify. Apparently, French indicated that he would attempt to have defendant's and Harris' trials severed. During trial, defendant asked French to call him to the stand, but French told him to "hold on" and reassured him that everything would "work out right."

The record reflects that subsequent to defendant's trial attorney French was found guilty or had pleaded guilty to several criminal offenses including felony and misdemeanor theft and false personation of a judicial official. French voluntarily withdrew from the roll of attorneys licensed to practice law in Illinois. At the evidentiary hearing on defendant's and Harris' post-conviction petitions, French testified that defendant had maintained his innocence. French denied that defendant had informed him that he had information implicating Harris. French testified that he told defendant that it was defendant's choice whether to testify, and defendant chose not to testify. The circuit court concluded defendant's testimony was not credible and found that defendant "was not prevented from testifying by Mr. French." Based on this finding, the circuit court denied defendant's post-conviction petition. This appeal followed.

The State initially maintains that the doctrine of res judicata bars the relitigation of the conflict of interest issue in a post-conviction proceeding. The State also insists that the issue could have been raised in defendant's direct appeal and defendant's failure to do so constitutes a waiver of the issue. It is well established that the scope of post-conviction review is limited to constitutional matters which have not been and could not have been previously adjudicated. ( People v. Winsett (1992), 153 Ill. 2d 335, 346, 180 Ill. Dec. 109, 606 N.E.2d 1186; see also People v. Johnson (1993), 154 Ill. 2d 227, 233, 182 Ill. Dec. 1, 609 N.E.2d 304.) Where the petitioner in a post-conviction proceeding has previously taken a direct appeal from a judgment of conviction, the judgment of the reviewing court is res judicata as to all issues actually decided by the court, and any other claims that could have been presented to the reviewing court, if not presented, are waived. ( People v. Flores (1992), 153 Ill. 2d 264, 274, 180 Ill. Dec. 1, 606 N.E.2d 1078.) However, "the waiver doctrine does not apply to issues raised in a post-conviction petition which stem from matters outside the record and which could not be brought on direct appeal." People v. Lee (1989), 185 Ill. App. 3d 420, 427, 133 Ill. Dec. 536, 541 N.E.2d 747; see also People v. Jackson (1990), 200 Ill. App. 3d 92, 100, 146 Ill. Dec. 100, 557 N.E.2d 1287, aff'd (1992), 149 Ill. 2d 540, 174 Ill. Dec. 842, 599 N.E.2d 926.

Defendant's post-conviction petition seeks relief based on matters outside the trial record, namely, that his attorney, aware that defendant's version of the relevant events incriminated codefendant Harris, refused defendant's request to take the stand. However, the State points to other matters appearing in the trial record which it contends "should have alerted defendant's appellate counsel on direct appeal to the issue of ineffective assistance of counsel." We note that different standards govern claims of conflicts of interest in multiple representation, depending on when the issue is first raised. If counsel brings a potential conflict to the trial court's attention before or at an early stage of trial, "a duty devolves upon the trial court to either appoint separate counsel or to take adequate steps to ascertain whether the risk of conflict was too remote to warrant separate counsel." ( People v. Spreitzer (1988), 123 Ill. 2d 1, 18, 121 Ill. Dec. 224, 525 N.E.2d 30, citing Holloway v. Arkansas (1978), 435 U.S. 475, 484, 55 L. Ed. 2d 426, 434, 98 S. Ct. 1173, 1178.) "If such steps are not taken, the fact of a 'potential or possible conflict may deprive the defendant of the guaranteed assistance of counsel.'" (Emphasis in original.) ( Spreitzer, 123 Ill. 2d at 18, quoting People v. Jones (1988), 121 Ill. 2d 21, 28, 117 Ill. Dec. 164, 520 N.E.2d 325.) On the other hand, if the trial court is not apprised of the potential conflict, then reversal of the conviction is proper only "upon a showing that 'an actual conflict of interest adversely affected' counsel's performance." ( Spreitzer, 123 Ill. 2d at 18, quoting Cuyler v. Sullivan (1980), 446 U.S. 335, 350, 64 L. Ed. 2d 333, 348, 100 S. Ct. 1708, 1719.) This means that "the defendant must point to some specific defect in counsel's strategy, tactics, or decision making attributable to the conflict." Spreitzer, 123 Ill. 2d at 18.

Mindful of these principles, we return to the State's waiver argument. Arguing that the conflict of interest issue could have been raised on appeal, the State first notes that prior to trial the prosecution raised the possibility of a conflict of interest since there had been preliminary Discussions about a plea bargain for Harris which would require Harris to testify against defendant. However, attorney French specifically advised the trial court that he saw no conflict in this respect because Harris had "no testimony that he can give against Mr. Powers." The trial court was entitled to rely upon French's representation that no conflict existed. (See Holloway v. Arkansas (1978), 435 U.S. 475, 486 n.9, 55 L. Ed. 2d 426, 435 n.9, 98 S. Ct. 1173, 1179 n.9.) The State further notes that French moved to have defendant's and Harris' trials severed and raised the trial court's denial of the severance motion as an issue in defendant's post-trial motion. While French requested separate trials, he never suggested in any way that a potential or actual conflict of interest existed in his joint representation of defendant and Harris, and in no way alluded to the facts forming the basis of defendant's request for post-conviction relief. Indeed, French identified no specific facts or circumstances whatsoever in support of the severance motion.

We recognize that the circumstances which make separate trials appropriate will, in many if not the majority of cases, also establish a conflict of interest in joint representation. The two common situations in which defendants will be prejudiced by a joint trial are: (1) where a nontestifying codefendant has made out-of-court admissions that implicate the defendant, in which case the latter's sixth amendment right of confrontation may be violated; and (2) where the defendants may present defenses that are so antagonistic that it is unfair to try them together. ( People v. King (1993) 252 Ill. App. 3d 334, 340-41, 191 Ill. Dec. 787, 624 N.E.2d 1165.) In both situations, joint representation would give rise to a conflict of interest. (See People v. Jones (1988), 121 Ill. 2d 21, 34, 117 Ill. Dec. 164, 520 N.E.2d 325 (where nontestifying codefendant Ross' out-of-court statement implicated the defendant Mosley, "the joint representation of the two defendants in one trial created a clear conflict as to Mosley" (emphasis added)); People v. Hodge (1993), 250 Ill. App. 3d 736, 750, 189 Ill. Dec. 683, 620 N.E.2d 651 ("'Actual' conflicts of interest have been found in joint trials where the same attorney represented two codefendants with antagonistic defenses").) Even so, we do not believe that a trial court must necessarily view a bare request for a severance as implicitly raising a potential conflict of interest where there is no mention of a possible conflict arising from joint representation and no factual basis is given in support of the request. It is presumed that defense attorneys can be depended upon to bring potential conflicts to the trial court's attention. "Absent special circumstances, therefore, trial courts may assume either that multiple representation entails ...

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