The Honorable Justice Freeman delivered the opinion of the court.
The opinion of the court was delivered by: Freeman
JUSTICE FREEMAN delivered the opinion of the court:
Defendant, Jerry Mahaffey, petitioned the circuit court of Cook County for post-conviction relief pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1991, ch. 38, par. 122-1 et seq.). The trial court dismissed defendant's amended petition without an evidentiary hearing. Defendant appeals to this court (134 Ill. 2d R. 651). We affirm.
In defendant's direct appeal, the court detailed the circumstances of the crimes committed. (See People v. Mahaffey (1989), 128 Ill. 2d 388, 132 Ill. Dec. 366, 539 N.E.2d 1172.) We need not repeat them here. Defendant and his brother, Reginald Mahaffey, were tried jointly before the same jury. Defendant was convicted of the murders of Dean and Jo Ellen Pueschel, the attempted murder and aggravated battery of their son, Richard, and home invasion, rape, armed robbery, residential burglary, and theft. The trial court imposed the following consecutive sentences: death on the murder convictions; extended prison terms of 60 years each on the attempted murder, rape, and armed robbery convictions; and an extended prison term of 30 years on the residential burglary conviction. The defendant's convictions and sentences were affirmed on direct appeal ( People v. Mahaffey (1989), 128 Ill. 2d 388, 132 Ill. Dec. 366, 539 N.E.2d 1172) and the United States Supreme Court denied certiorari ( Mahaffey v. Illinois (1990), 497 U.S. 1031, 111 L. Ed. 2d 799, 110 S. Ct. 3291).
On September 14, 1992, defendant filed his 21-count amended petition for post-conviction relief. On March 16, 1993, the trial court granted the State's motion to dismiss the petition without an evidentiary hearing. We will discuss additional relevant facts in the context of the issues raised on appeal.
A proceeding brought under the Post-Conviction Hearing Act (Act) is not an appeal; rather, it is a collateral attack on a judgment of conviction. The purpose of the proceeding is to resolve allegations that constitutional violations occurred at trial, when those allegations have not been, and could not have been, adjudicated previously. The petitioner bears the burden to establish a substantial constitutional deprivation. People v. Albanese (1988), 125 Ill. 2d 100, 104-05, 125 Ill. Dec. 838, 531 N.E.2d 17; People v. Silagy (1987), 116 Ill. 2d 357, 365, 107 Ill. Dec. 677, 507 N.E.2d 830.
The petitioner in a post-conviction proceeding is not entitled to an evidentiary hearing as of right; rather, the Act permits summary dismissal of a nonmeritorious petition. The allegations in the petition, supported where appropriate by the trial record or accompanying affidavits, must show a substantial violation of constitutional rights. Determinations of the reviewing court on the prior direct appeal are res judicata as to issues actually decided; issues that could have been presented on direct appeal, but were not, are deemed waived. Determinationsof the trial court in a post-conviction proceeding will not be disturbed unless manifestly erroneous. Albanese, 125 Ill. 2d at 105, 109; Silagy, 116 Ill. 2d at 365, 373.
On appeal, defendant contends that he was denied his constitutional rights because: (1) the State received twice as many peremptory challenges as he; (2) his trial counsel labored under a conflict of interest; (3) he received deficient representation at a pretrial suppression hearing, the death sentencing hearing, and on direct review; (4) this court, on direct review, held that the rule announced in People v. Gacho (1988), 122 Ill. 2d 221, 262, 119 Ill. Dec. 287, 522 N.E.2d 1146, applied prospectively; and (5) the jury instructions failed to adequately guide the jury in deciding whether to impose the death penalty.
I. Number of Peremptory Challenges
Defendant first contends that section 115-4(e) of the Code of Criminal Procedure violates due process. (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2.) Section 115-4(e) provides, inter alia: that "In a single trial of more than one defendant, each defendant shall be allowed 12 peremptory challenges in a capital case ***. The State shall be allowed the same number of peremptory challenges as all of the defendants." (Ill. Rev. Stat. 1991, ch. 38, par. 115-4(e).) Consequently, defendant, who was tried jointly with Reginald, received 12 peremptory challenges, while the State received 24. Defendant argues that the State's receipt of twice as many peremptory challenges as he denied him the due process of law. We note-and reject-the State's waiver argument. See People v. Sarelli (1973), 55 Ill. 2d 169, 302 N.E.2d 317.
Defendant's claim lacks merit. It is quite settled that the peremptory challenge is not of constitutional magnitude. It is a creature of statute and is not required by the Federal Constitution. (Georgia v. McCollum (1992), 505 U.S. , , 120 L. Ed. 2d 33, 50, 112 S. Ct. 2348, 2358; Ross v. Oklahoma (1988), 487 U.S. 81, 88-89, 101 L. Ed. 2d 80, 90, 108 S. Ct. 2273, 2278-79; Stilson v. United States (1919), 250 U.S. 583, 586-87, 63 L. Ed. 1154, 1156-57, 40 S. Ct. 28, 30.) Thus, "it is for the State to determine the number of peremptory challenges allowed and to define their purpose and the manner of their exercise. [Citations.] As such, the 'right' to peremptory challenges is 'denied or impaired' only if the defendant does not receive that which state law provides." Ross, 487 U.S. at 89, 101 L. Ed. 2d at 90-91, 108 S. Ct. at 2279.
Seeking support for this claim, defendant misreads two United States Supreme Court decisions. Defendant argues that Wardius v. Oregon (1973), 412 U.S. 470, 37 L. Ed. 2d 82, 93 S. Ct. 2208, holds that due process "prohibits state trial practice rules which give the prosecution benefits unless reciprocal benefits are given to the defendant." However, the actual holding of Wardius is clearly more limited: "We hold that the Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants." Wardius, 412 U.S. at 472, 37 L. Ed. 2d at 86, 93 S. Ct. at 2211.
Defendant also argues that Holland v. Illinois (1990), 493 U.S. 474, 107 L. Ed. 2d 905, 110 S. Ct. 803, held that neither the defendant nor the State should be favored regarding peremptory challenges. However, Holland actually held that a prosecutor's use of peremptory challenges to eliminate a distinctive group in the community does not deprive the defendant of a sixth amendment right to the fair possibility of a representative jury. Holland, 493 U.S. at 477-78, 107 L. Ed. 2d at 914-15, 110 S. Ct. at 806.
It is clear that the right that defendant claims was violated is statutory and not constitutional. The Post-Conviction Hearing Act is limited to substantial violations of constitutional rights. Defendant cannot remedy his failure to raise a constitutional issue with the conclusory allegation that this irregularity deprived him of due process. ( People v. Shaw (1971), 49 Ill. 2d 309, 311, 273 N.E.2d 816.) In any event, defendant was not denied due process because he received the number of peremptory challenges that Criminal Code section 115-4(e) provides. We cannot say that the trial court manifestly erred in dismissing this claim.
Defendant next claims that he was deprived of his constitutional right to effective assistance of counsel at trial. (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8.) The record shows that Steven Decker represented defendant, while Decker's law partner, Lawrence Levin, represented codefendant Reginald. We note that the trial judge was not apprised of a possible conflict of interest. Defendant contends that the professional relationship between Decker and Levin caused Decker to labor under a conflict of interest.
Decker argued that neither defendant nor codefendant Reginald committed the crimes. Defendant points out that Decker failed to argue that Reginald and another brother, Cedric, actually committed the crimes. Defendant posits that Decker failed to raise this defense because he did not want to conflict with his law partner's representation of Reginald.
The State initially responds that defendant waived this issue because his appellate counsel could have raised it on direct appeal. We disagree. The same assistant public defender represented both defendant and Reginald on direct appeal. (See Mahaffey, 128 Ill. 2d at 393.) It would be fundamentally unfair to require appellate counsel essentially to accuse one client, Reginald, so as to raise the conflict of interest issue in favor of the other client, the defendant. (See People v. Burns (1979), 75 Ill. 2d 282, 290, 26 Ill. Dec. 679, 388 N.E.2d 394.) We hold that this issue is not waived and now address the merits.
The sixth and fourteenth amendments to the United States Constitution guarantee the right to effective assistance of counsel. ( Cuyler v. Sullivan (1980), 446 U.S. 335, 343, 64 L. Ed. 2d 333, 343, 100 S. Ct. 1708, 1715; People v. Vriner (1978), 74 Ill. 2d 329, 337, 24 Ill. Dec. 530, 385 N.E.2d 671.) Effective assistance of counsel means assistance that entitles an accused to the undivided loyalty of his or her counsel free from conflicting interests or inconsistent obligations. People v. Spreitzer (1988), 123 Ill. 2d 1, 13-14, 121 Ill. Dec. 224, 525 N.E.2d 30; People v. Stoval (1968), 40 Ill. 2d 109, 111-12, 239 N.E.2d 441.
However, the joint representation of criminal defendants by a single attorney does not, by itself, violate this right because it is always possible that the interests of codefendants may diverge. Thus, to prevail on a claim of ineffective assistance of counsel based on joint representation of criminal codefendants by a single attorney, where the trial court was not apprised of a potential conflict, a defendant must show an actual conflict of interest manifested at trial. ( Cuyler, 446 U.S. at 348, 64 L. Ed. 2d at 346-47, 100 S. Ct. at 1718; Vriner, 74 Ill. 2d at 340-41.) In other words, to obtain reversal of the conviction, the defendant must point to some specific defect in defense counsel's strategy, tactics, or decisionmaking attributable to the conflict. ( Spreitzer, 123 Ill. 2d at 18.) For purposes of conflict of interest analysis, the law considers the representation of codefendants by law partners or associates the same as the representation of codefendants by one attorney. Ross v. Heyne (7th Cir. 1980), 638 F.2d 979, 982-83; People v. Dace (1987), 153 Ill. App. 3d 891, 896, 106 Ill. Dec. 625, 506 N.E.2d 332; accord Austin v. State (1992), 327 Md. 375, 382-86, 609 A.2d 728, 731-33 (collecting authorities).
In the present case, defendant points to the failure of Decker, his trial counsel, to argue that codefendant Reginald and their brother, Cedric, actually committed the crimes. Defendant attributes this failure to a conflict of interest between Decker and Levin, who was Reginald's trial counsel and Decker's law partner.
We cannot accept this claim. Both defendant and Reginald denied their guilt. This strategy alone does not reveal a conflict. Further, the mere availability of a strategy that would have helped one criminal codefendant at the expense of another does not create hostility between their interests. ( People v. Echols (1978), 74 Ill. 2d 319, 327-28, 24 Ill. Dec. 503, 385 N.E.2d 644.) Defendant merely attempts to create a conflict of interest through conjecture as to what strategy might have been pursued. This court will not overturn a conviction based on hypothetical conflicts. ( People v. ...