The opinion of the court was delivered by: Justice Burke
Appeal from the Circuit Court of Cook County Honorable Ronald A. Himel, Judge Presiding.
Defendant Earl Wilson appeals from the circuit court's order dismissing his amended petition for post-conviction relief without an evidentiary hearing. Defendant contends that (1) he was denied his constitutional right to conflict-free trial counsel; (2) the court erred in failing to hold an evidentiary hearing; and (3) the court erred in denying his discovery motion to depose his trial counsel. Defendant seeks a reversal of the dismissal of his post-conviction petition or, alternatively, a remand for an evidentiary hearing. For the reasons set forth below, we affirm.
Defendant was represented during his arraignment and the preliminary hearings by trial counsel Robert Edwards, who had filed his appearance on January 13, 1987, and by both trial counsel Edwards and Leo Fox, who had appeared as co-counsel at the commencement of defendant's jury trial on December 2, 1987. The jury subsequently found defendant guilty of the first degree murders of Willie "Flukey" Stokes, a major Chicago drug dealer, and Ronald Johnson, a chauffeur for Stokes. The court sentenced defendant to natural life imprisonment without parole. Defendant appealed, represented by appellate attorneys Sam Adam and Marc Martin. This court affirmed defendant's conviction. People v. Wilson, 196 Ill. App. 3d 997, 554 N.E.2d 545 (1990). The evidence adduced during the preliminary hearings and at trial is detailed in our opinion on direct appeal. See Wilson, 196 Ill. App. 3d 997. Accordingly, we will reiterate only those facts relating to the underlying offense and prior proceedings germane to defendant's alleged constitutional issues raised in this appeal.
On November 18, 1986, the date of the victims' murders, defendant was a paid undercover narcotics informant for the Chicago police department and the Cook County State's Attorney's office. Defendant, in his capacity as undercover informant, was temporarily employed as Stokes' bodyguard and surveilling Stokes' activities. Unbeknownst to the police and the State's Attorney's office, however, defendant had also entered into an alleged oral agreement with Elliott Taylor, another reputed drug dealer to whom defendant was indebted. The alleged oral agreement between defendant and Taylor was that defendant would set Stokes up for an armed robbery on November 18, 1986, in exchange for Taylor's agreement to forgive defendant's indebtedness.
At defendant's trial, the evidence indicated that shortly after midnight on November 18, 1986, defendant's car had been double parked behind Stokes' car when several men approached the two cars and murdered Stokes and Johnson. While the victims' car was riddled with bullet holes, defendant's car remained untouched by gunfire. The police apprehended defendant at the crime scene and eventually arrested him after gathering the records of mobile telephone conversations made minutes before the murders by defendant to another person at a telephone number registered in Elliott Taylor's name. The evidence also revealed that defendant had been keeping Elliott Taylor, allegedly the person on the other end of the cellular telephone line, apprised of the direct route travelled in the city by Stokes and Johnson. Elliott Taylor was never charged in the murders nor was he called as a witness at defendant's trial. Defendant was subsequently convicted of the first degree murders of Stokes and Johnson, and he appealed.
On defendant's direct appeal, this court affirmed his conviction. Wilson, 196 Ill. App. 3d at 1016. Defendant then filed a pro se petition for relief pursuant to the Illinois Post-Conviction Hearing Act (725 ILCS 5/122--1 et seq. (West 1996)), alleging that his constitutional rights had been substantially denied at trial due to trial counsel Leo Fox's ineffective assistance. Defendant claimed that Fox had a conflict of interest caused by his simultaneous representation of Elliott Taylor in an unrelated case and that Fox refused to grant his request to call Taylor as a witness at his trial. Defendant did not attach any affidavits to his petition in support of his allegations.
Defendant subsequently retained private counsel, who filed an amended post-conviction petition. In the amended petition, defendant claimed that he had been denied his right to effective assistance of trial counsel because trial counsel, Leo Fox and Robert Edwards, had a conflict of interest. Defendant alleged that Fox and Edwards had represented Elliott Taylor, an alleged suspect in defendant's case, in two unrelated cases: one prior to defendant's trial and the other simultaneous with defendant's trial. Defendant also alleged that Taylor had paid trial counsel Edwards and Fox to represent defendant. In support of his allegations, defendant attached police records that allegedly showed that Taylor, though not charged with defendant for the murders of Stokes and Johnson, "was the person the Office of the State's Attorney of Cook County and the Chicago Police thought was primarily responsible for the death of Willie (Flukey) Stokes." Defendant also attached records of appearances filed by Edwards and Fox on behalf of Taylor in the two unrelated cases. These records showed that Edwards had represented Taylor from February 1984, when Taylor was charged with possession of a controlled substance, through March 1987, when Taylor's conviction was affirmed on appeal. The records further showed that both trial counsel Edwards and Fox had filed appearances on behalf of Taylor in a theft case in January 1987, and Edwards again filed his appearance on behalf of Taylor in the same case on February 18, 1988. Defendant also submitted his affidavit, in which he averred that Taylor had selected trial counsel Edwards and Fox to represent him during his trial and had paid their legal fees; he was unable to negotiate with the State and provide information against Taylor because of the conflict of interest posed by his trial counsels' simultaneous representation of Taylor; his decisions in the case were affected by his trial counsels' simultaneous representation of Taylor; he would have obtained different counsel had he been aware that his trial counsel were simultaneously representing Taylor in an unrelated case; and, after his conviction, he had provided an assistant United States Attorney with information concerning Taylor. In addition, defendant filed a motion to depose his trial counsel to substantiate the allegations contained in his petition.
The State filed a motion to dismiss and a supporting affidavit of trial counsel Robert Edwards. See 725 ILCS 5/122--6 (West 1996). Edwards averred in his affidavit that Elliot Taylor had neither retained him nor paid him to represent defendant. Edwards stated that defendant's wife, Peggy Wilson, had paid defendant's legal fees. The post-conviction Judge, the same Judge who had presided over defendant's trial, granted the State's motion and dismissed defendant's petition without an evidentiary hearing. See generally 134 Ill. 2d R. 651. In its ruling, the Judge found that defendant was not entitled to an evidentiary hearing because he had "failed to demonstrate *** an actual conflict of interest [and had] failed to make any substantive showing of ineffective assistance of counsel." This appeal followed.
Defendant contends that he was denied his right to conflict-free trial counsel because Edwards and Fox, prior to and during the proceedings that resulted in his conviction, had represented and owed an obligation to Elliott Taylor, "a suspect in the cause" who had paid Edwards and Fox to represent defendant. Defendant argues that, but for his trial counsels' ethical obligations and financial indebtedness to Taylor, he would have entered into plea negotiations with the State and offered damaging information about Taylor in order to receive a lesser sentence than the mandatory life sentence. Defendant maintains that his trial counsels' conflict of interest denied him his constitutional right to effective assistance of counsel and, therefore, the trial court erred in failing to hold an evidentiary hearing. The State argues that defendant has waived this issue on review because it could have been, but was not, raised in his direct appeal. The State alternatively argues that the trial court did not err in denying an evidentiary hearing based on defendant's allegations of conflict of interest because defendant failed to support his allegations with facts, failed to show a conflict of interest, and could not establish prejudice since his life sentence was mandatory.
The Illinois Post-Conviction Hearing Act provides a supplemental proceeding for a defendant who alleges that he was substantially denied his constitutional rights at trial. See 725 ILCS 5/122--1 (West 1996); People v. Coleman, 183 Ill. 2d 366, 379, 701 N.E.2d 1063 (1998). Filing a post-conviction petition, however, does not entitle a defendant to an evidentiary hearing as a matter of right. See People v. Evans, 186 Ill. 2d 83, 89, 708 N.E.2d 1158 (1999); Coleman, 183 Ill. 2d at 381; People v. Hinton, 302 Ill. App. 3d 614, 619, 706 N.E.2d 1017 (1998). Rather, the allegations contained in the post-conviction petition must sufficiently demonstrate a constitutional infirmity that occurred at the original trial, and the allegations must stand uncontradicted and clearly be supported by either the trial record or accompanying affidavits. See Coleman, 183 Ill. 2d at 380-81; accord Hinton, 302 Ill. App. 3d at 619. When determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and in any accompanying affidavits, in light of the original trial record, are to be taken as true. See Coleman, 183 Ill. 2d at 380-82. Nonfactual and nonspecific assertions amounting to mere Conclusions are insufficient to require a hearing under the Act (see Coleman, 183 Ill. 2d at 381) and, upon a motion to dismiss, a trial court may summarily dismiss a post-conviction petition without requiring extrinsic evidence if the trial record shows the petition to be without merit (see People v. Morris, 43 Ill. 2d 124, 128, 251 N.E.2d 202 (1969); accord Coleman, 183 Ill. 2d at 381-82 (noting that a dismissal of a post-conviction petition has consistently been upheld when the trial court record contradicts the allegations contained in the petition)).
A trial court's dismissal of a post-conviction petition is reviewed de novo. See Coleman, 183 Ill. 2d at 387-89. Our review, however, is limited to resolving allegations of constitutional violations that occurred at trial when those allegations have not been, and could not have been raised on direct appeal. See Evans, 186 Ill. 2d at 89; Hinton, 302 Ill. App. 3d at 619. "[A]ny issue that could have been presented on direct appeal, but was not, is waived." People v. Thomas, 164 Ill. 2d 410, 416, 647 N.E.2d 983 (1995); accord People v. Henderson, 171 Ill. 2d 124, 133, 662 N.E.2d 1287 (1996); People v. Stewart, 123 Ill. 2d 368, 372, 528 N.E.2d 631 (1988). Specifically, the failure to raise a claim of ineffectiveness of trial counsel in the direct appeal renders the issue waived in post-conviction proceedings. See People v. Orange, 168 Ill. 2d 138, 149, 659 N.E.2d 935 (1995); People v. Thompkins, 161 Ill. 2d 148, 157-58, 641 N.E.2d 371 (1994). In addressing the issue of waiver, our supreme court has stated: "Failure to raise a claim which could have been addressed on direct appeal is a procedural default which results in a bar to consideration of the claim's merits in a post-conviction proceeding. [Citation.] ***
*** *** [T]he mere fact that support for a claim is contained in papers not in the trial record is largely immaterial. Reason to relax the bar occurs only when what is offered in the papers also explains why the claim it supports could not have been raised on direct appeal." People v. Erickson, 161 Ill. 2d 82, 87-88, 641 N.E.2d 455 (1994).
There are two well-recognized exceptions to the waiver rule. First, a claim of incompetence of counsel in a post-conviction proceeding will not be barred where the attorney who represented the defendant at trial also represented the defendant on direct appeal. See People v. Winsett, 153 Ill. 2d 335, 346, 606 N.E.2d 1186 (1992); see also People v. Ford, 99 Ill. App. 3d 973, 976, 426 N.E.2d 340 (1981) (stating that the "rationale for this exception is that it is unreasonable to expect appellate counsel to argue his own incompetency effectively"); see generally Hinton, 302 Ill. App. 3d at 619 (finding that the waiver doctrine was inapplicable because the alleged waiver stemmed from ineffective assistance of appellate counsel). Second, the waiver rule will be relaxed if either the evidentiary basis for the claim of ineffectiveness is not contained within the original trial court record and, therefore, could not be considered by a reviewing court on direct appeal or if the facts relating to the competency of trial counsel are newly discovered. See People v. Steidl, 177 Ill. 2d 239, 250, 685 N.E.2d 1335 (1997); People v. Britz, 174 Ill. 2d 163, 177, 673 N.E.2d 300 (1996).
In the case at bar, defendant contends that his trial counsels' conflict of interest denied him their effective assistance. Therefore, defendant asserts, he has shown a substantial deprivation of a constitutional right entitling him to an evidentiary hearing.
We find that defendant has waived this issue for review because he could have, but did not, raise the issue on direct appeal, and neither of the two exceptions to the waiver rule apply. Our examination of the record on appeal reveals, first, that Edwards and Fox were defendant's trial counsel and Adam and Martin were defendant's appellate counsel. Thus, appellate counsel Adam and Martin could have, but did not, argue on direct appeal the alleged incompetency of trial counsel Edwards and Fox. Second, the evidentiary basis for defendant's claim of ineffectiveness is contained within the original trial court record, which reveals that both the trial court and defendant were aware that trial counsel Fox was simultaneously representing Elliott Taylor in an unrelated case. Immediately before trial, the following colloquy took place in chambers between the trial court, trial counsel Edwards, trial counsel Fox, and defendant:
"THE COURT: All right. For the record, we are in chambers. *** The defendant is represented by Robert Edwards. It is my understanding that Leo Fox is going to file an appearance, and he will be the second chair, as it were, in this case?
MR. EDWARDS: That is correct, Judge.
THE COURT: All right. Mr. Wilson [defendant], Mr. Fox, when he was here earlier, indicated that he wanted to make sure the record reflected that you understand that he represents Mr. Taylor.
THE COURT: All right, and the record should be clear that in regards to that, you have no problem with him representing you, also, even though he represented, and I don't know what happened to that case, but someone who has, in some respects, been named or is in some ways part of this trial, ...