Appeal from the Circuit Court of Winnebago County. No. 02-CF-2328 Honorable Steven G. Vecchio, Judge, Presiding.
JUSTICE HUDSON delivered the judgment of the court, with opinion. Justices Schostok and Birkett concurred in the judgment and opinion.
¶ 1 Defendant, Cowarna L. Patterson, appeals the second-stage dismissal of her postconviction petition. She contends that a third-stage evidentiary hearing is necessary to resolve issues surrounding her trial attorney's conflict of interest. We affirm.
¶ 2 Defendant was charged with first-degree murder (720 ILCS 5/9-1(a)(2) (West 2002)) for the stabbing death of Tyrone Carthell. She was represented at trial by assistant public defender Michael Combs. The jury found defendant guilty. At a status hearing prior to sentencing, assistant public defender Edward Light told the court that Combs had recently become an assistant State's Attorney. Light said that he intended to discuss the case with Combs before sentencing. At the sentencing hearing, Light confirmed that he had reviewed some matters with Combs. One of the trial prosecutors, Wendy Larson, mentioned that she was currently Combs' supervisor.
¶ 3 The trial court sentenced defendant to the minimum of 20 years' imprisonment, and denied her posttrial motion. On direct appeal, this court affirmed. People v. Patterson, No. 2-03-0916 (2005) (unpublished order under Supreme Court Rule 23) (Patterson I).
¶ 4 Defendant filed a pro se postconviction petition, alleging that Combs labored under a conflict of interest during the trial because he had accepted a position with the State's Attorney's office. The trial court summarily dismissed the petition, but this court reversed and remanded for second-stage postconviction proceedings. People v. Patterson, No. 2-06-0668 (2008) (unpublished order under Supreme Court Rule 23) (Patterson II). We held that, while Combs' acceptance of a position with the State''s Attorney's office did not create a per se conflict, defendant might be able to show an actual conflict. Id. at 5.
¶ 5 Following remand, the trial court appointed counsel, who filed an amended petition. The State moved to dismiss it, and the trial court granted the motion. Defendant timely appeals.
¶ 6 Defendant contends that the cause should be remanded for a third-stage postconviction hearing on the following issues: (1) when Combs applied to and/or knew he would be joining the State's Attorney's office; (2) whether, if he applied and/or knew prior to trial, he failed to present evidence or otherwise zealously advocate on defendant's behalf; and (3) whether Light was so beholden to Combs for advice at sentencing that he failed to investigate or consider including in his posttrial motion a possible claim of Combs' ineffective assistance. Defendant asserts that it is impossible to discern whether Combs had a per se or an actual conflict of interest, and whether Light was able to adequately represent her at posttrial proceedings, without deciding these factual issues.
¶ 7 In response, the State argues the following. The record shows that the parties and the trial court knew well before trial of Combs' intent to join the State's Attorney's office and that defendant waived any potential conflict. In any event, Patterson II represents the law of the case that there was not a per se conflict of interest, and that decision is consistent with precedent that only a prior or contemporaneous association with the prosecution creates a per se conflict. While Patterson II held open the possibility that defendant could establish an actual conflict of interest, to do so she needed to demonstrate some specific shortcoming in Combs' representation attributable to the conflict. However, she failed to even allege, much less provide evidentiary support for, any such shortcoming. Further, Light could not have been ineffective at the sentencing hearing, because defendant received the minimum sentence. Finally, as defendant did not allege any specific facts showing an actual conflict of interest by Combs, Light could not have been ineffective for failing to include the issue in the posttrial motion. We agree with the State.
¶ 8 Under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2006)), a convicted defendant may collaterally attack her conviction and sentence based on violations of her constitutional rights. People v. Erickson, 183 Ill.2d 213, 222 (1998). Proceedings under the Act are divided into three stages. People v. Gaultney, 174 Ill.2d 410, 418 (1996). During the first stage, the trial court independently examines the petition within 90 days after filing. 725 ILCS 5/122-2.1(a) (West 2006). If the petition is frivolous or patently without merit, it will be summarily dismissed. 725 ILCS 5/122-2.1(a)(2) (West 2006).
¶ 9 If the petition advances to the second stage, counsel may be appointed for the defendant. 725 ILCS 5/122-4 (West 2006). Counsel may then file an amended petition, which the State may answer or move to dismiss. 725 ILCS 5/122-5 (West 2006). To survive dismissal at the second stage, a petition must, when liberally construed in light of the record, " 'make a substantial showing of a constitutional violation.' " People v. Buchanan, 403 Ill.App.3d 600, 602 (2010) (quoting People v. Hall, 217 Ill.2d 324, 334 (2005)). A postconviction petitioner is not entitled to an evidentiary hearing as a matter of right. Id. The petition's allegations must be supported by the record or by accompanying affidavits. Id. Nonspecific and nonfactual assertions that amount to mere conclusions are insufficient to require a hearing. People v. Coleman, 183 Ill.2d 366, 381 (1998).
¶ 10 Defendant's petition alleged that trial counsel labored under a conflict of interest. A defendant's sixth-amendment right to the effective assistance of counsel includes the right to conflict-free representation. People v. Morales, 209 Ill.2d 340, 345 (2004). In deciding whether a defendant received ineffective assistance of counsel based on an alleged conflict of interest, we first resolve whether counsel labored under a per se conflict. A per se conflict is one where " ' "facts about a defense attorney's status engender, by themselves, a disabling conflict." ' (Emphasis in original.)" People v. Hernandez, 231 Ill.2d 134, 142 (2008) (quoting Morales, 209 Ill.2d at 346, quoting People v. Spreitzer, 123 Ill.2d 1, 14 (1988)). When a defendant's attorney has a tie to a person or entity that would benefit from a verdict unfavorable to the defendant, a per se conflict arises. People v. Janes, 168 Ill.2d 382, 387 (1995). " '[I]f counsel, unknown to the accused and without his knowledgeable assent, is in a duplicitous position where his full talents—as a vigorous advocate having the single aim of acquittal by all means fair and honorable—are hobbled or fettered or restrained by commitments to others, ' " effective assistance of counsel is lacking. People v. Stoval, 40 Ill.2d 109, 111-12 (1968) (quoting Porter v. United States, 298 F.2d 461, 463 (5th Cir. 1962)).
¶ 11 The Spreitzer court explained the justification underlying the per se rule, noting that counsel's knowledge that a result favorable to his other client or association would inevitably conflict with a defendant's interest "might 'subliminally' affect counsel's performance in ways [that are] difficult to detect and demonstrate." Spreitzer, 123 Ill.2d at 16. The court further noted the possibility that counsel's conflict would subject him or her ...