The second-stage dismissal of defendant’s postconviction petition was upheld over her contentions that the public defender who represented her at trial had a conflict of interest based on his acceptance of a position as an assistant State’s Attorney and that the public defender who assumed the representation of defendant might have been beholden to his predecessor and failed to zealously represent defendant, since defendant failed to allege any specific facts showing an actual conflict of interest on the part of either public defender and the record suggested an agreement that defendant had waived any possible conflict.
Appeal from the Circuit Court of Winnebago County, No. 02-CF-2328; the Hon. Steven G. Vecchio, Judge, presiding.
Peter A. Carusona and Mark D. Fisher, both of State Appellate Defender's Office, of Ottawa, for appellant.
Joseph P. Bruscato, State's Attorney, of Rockford (Lawrence M. Bauer and Jay Paul Hoffmann, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Panel 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 People v. Patterson, No. 2-03-0916 (2005) (unpublished order under Supreme Court Rule 23) (Patterson I).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 ...