                            ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Cleveland, 2012 IL App (1st) 101631




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                     ALBERT CLEVELAND, Defendant-Appellant.



District & No.              First District, Sixth Division
                            Docket No. 1-10-1631


Filed                       November 30, 2012


Held                        The dismissal of defendant’s claims of ineffective assistance of counsel
(Note: This syllabus        in his pro se postconviction petition that his appointed counsel had a per
constitutes no part of      se conflict of interest based on his prior representation of defendant’s
the opinion of the court    victim and that he failed to call exculpatory witnesses was reversed and
but has been prepared       the cause was remanded for a third-stage evidentiary hearing.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under              Appeal from the Circuit Court of Cook County, No. 95-CR-26313; the
Review                      Hon. Charles P. Burns, Judge, presiding.



Judgment                    Reversed and remanded with directions.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Rachel Moran, all of State
Appeal                     Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Amy
                           Watroba Kern, John Nowak, and Judy L. DeAngelis, Assistant State’s
                           Attorneys, of counsel), for the People.


Panel                      JUSTICE GARCIA delivered the judgment of the court, with opinion.
                           Justices Hall and Gordon concurred in the judgment and opinion.



                                              OPINION

¶1          The trial court dismissed defendant Albert Cleveland’s petition at the second stage of
        postconviction proceedings. In 1996, the defendant was convicted of murder and attempted
        murder. In 1998, the defendant filed a pro se postconviction petition alleging ineffective
        assistance of trial counsel based on a per se conflict of interest and counsel’s failure to call
        the mother of his children as an alibi witness. Over the course of 10 years, appointed counsel
        supplemented the defendant’s initial petition with additional affidavits from other potential
        exculpatory witnesses and added another claim of ineffective assistance of counsel alleging
        he was precluded from testifying by his defense counsel. In assessing the merits of the
        petition, the trial judge refused to consider the failure-to-testify claim and some of the
        supplemental affidavits as untimely. Based on the remaining material, the court ruled the
        petition failed to show a substantial deprivation of a constitutional right. The court rejected
        the defendant’s claim of a per se conflict of interest because defense counsel’s prior
        representation of the murder victim occurred years before the defendant’s trial. The court
        concluded the defendant suffered no prejudice based on the alleged conflict. The court also
        rejected the affidavits from the remaining witnesses as not supporting an alibi defense.
        Finally, the court ruled no substantial showing was made that defense counsel precluded the
        defendant from testifying. We reverse as to the first two claims. The Illinois Supreme Court
        has made it clear that a per se conflict of interest grounded on defense counsel’s
        representation of both the defendant and the victim of the defendant’s criminal conduct is not
        subject to a prejudice analysis. In the context of a postconviction petition, a supported claim
        that defense counsel was subject to a per se conflict of interest makes a substantial showing
        of a violation of the defendant’s sixth amendment right. We rule the court erred in striking
        affidavits of potential alibi witnesses from the record. We conclude the defendant has made
        a substantial showing of a constitutional violation based on counsel’s failure to interview
        several alibi witnesses. We affirm the dismissal of the defendant’s final claim based on
        counsel’s alleged refusal to allow him to testify because the defendant did not assert his
        desire to testify before the trial court. We remand for a third-stage evidentiary hearing on the


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     claims that his counsel was subject to a per se conflict of interest and that defense counsel
     failed to call known exculpatory witnesses.

¶2                                        BACKGROUND
¶3        The defendant was convicted by a jury of first degree murder and of attempted murder
     on September 27, 1996. In his direct appeal, the defendant raised three claims: (1) lack of
     proof beyond a reasonable doubt; (2) improper comments by the prosecutor during closing
     argument; and (3) defense counsel’s ineffectiveness for failing to object to the improper
     comments. On December 31, 1997, this court affirmed in an unpublished decision. People
     v. Cleveland, No. 1-96-4327 (1997) (unpublished order under Supreme Court Rule 23). On
     June 3, 1998, the Illinois Supreme Court denied leave to appeal. People v. Cleveland, 178
     Ill. 2d 585 (1998) (table). The following summarizes the evidence presented at the
     defendant’s trial from our unpublished decision and the postconviction record.
¶4        The defendant was represented by Richard Dickinson, a private attorney. Before jury
     selection began, Dickinson informed the court that he would call only one defense witness:
     the defendant’s sister, Victoria Cleveland. The court excluded Victoria from the courtroom
     during the trial.
¶5        The State’s first witness was Sherrocco Allen, the only eyewitness to the shooting to
     testify at trial. Allen testified that on July 17, 1995, she was 15 years old. On that date, at
     approximately 1:30 a.m., she was at the Trumbull Park housing project sitting on the outside
     stairs of a building with a friend, her younger sister, and her aunt. As she sat on the stairs,
     Allen heard an argument “down the street” at an address “half a block” away. Her view was
     unobstructed and the area was well lit. Allen saw five men arguing; she identified the five
     as the defendant, the murder victim Magellan Steward, the attempted murder victim Martin
     Amos, and two others she knew only as Keith and Bowie. Allen had known the defendant
     for two to three years and knew him by his street name “Face” and his legal name. She had
     known Steward for approximately one year and knew Amos to be Steward’s brother. When
     her attention was first drawn to the five men, she saw Amos holding a small stick.
¶6        Allen “wasn’t really paying attention” to the men and did not hear what they were saying
     until she saw the defendant pull a black gun from his waist. With the gun in hand, the
     defendant told Amos to “put the stick away.” Amos dropped the stick and the defendant
     returned the gun to his waist. The men continued to argue until Amos and Steward walked
     away toward a gangway between two buildings. As they walked away, the defendant again
     removed his gun and handed it to Keith. Both the defendant and Keith ran toward the
     gangway, where Keith shot Amos multiple times in the face and handed the gun back to the
     defendant. The defendant then walked forward and fired three or four shots into the gangway.
     Allen could not see Steward in the gangway because her view was blocked by one of the
     buildings. She did see that the defendant was not close enough to “put the gun on” Steward.
     After the shooting, the defendant, Keith, and Bowie ran away. Allen ran home.
¶7        Allen stated that at the time she witnessed the shootings, it was dark outside. However,
     the housing project buildings had working lights. Allen did not speak to the police initially
     because she was scared. Five days after the shooting, when she was contacted by Chicago

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       police detective Louis Caesar, she told the detective what she saw. She later selected the
       defendant from a photo array, identified him at an in-person lineup, and in court.
¶8          Mertis McNabb testified that she lived near the site of the shooting. On the night of the
       crime, she was awoken by loud arguing and later heard three or four gunshots. When she
       heard someone yell that people had been shot, she ran outside and observed two bodies on
       the ground. One body was in the front yard of a building and the other was in the gangway.
       She testified that there were working lights above the doorways and on top of the buildings
       in the area of the shooting.
¶9          Cook County medical examiner Joseph Kogan reviewed the Steward autopsy. Steward
       sustained gunshot wounds to his chest and right hand. The edges of the wound to his hand
       were discolored, indicating that the gun was fired from less than one inch away. The wound
       to the chest was not consistent with a close-range shot.
¶ 10        Chicago police officer David Pearson testified that he arrived at the scene of the
       shootings at approximately 1:50 a.m. Both victims were alive at the time. Only Amos could
       speak; he told Officer Pearson he could not identify the person that shot him. Officer Pearson
       testified that the buildings in the area were well lit. According to the officer, the stoop from
       which Allen witnessed the crime was approximately one-half block from the scene of the
       shootings.
¶ 11        The parties stipulated to the testimony of Dr. Richard Gonzalez, the emergency room
       physician where Amos was taken. Pursuant to the stipulation, Dr. Gonzalez would testify that
       Amos suffered a gunshot wound to the head and suffered traumatic blindness. Amos did not
       tell Dr. Gonzalez who shot him.
¶ 12        Detective Caesar testified that four days after the shooting, he learned an inmate in
       Racine, Wisconsin, had information about Steward’s murder. The inmate was Sherrocco
       Allen’s brother, Tartorious1 Allen. He told Detective Caesar to contact his sister Sherrocco
       for more information. Sherrocco Allen later identified the defendant as one of the shooters
       to Detective Caesar.
¶ 13        The defense presented no evidence or witnesses. The defendant did not testify, and the
       court did not admonish him regarding his right to testify. The jury found him guilty of first
       degree murder and attempted first degree murder. On October 25, 1996, the court sentenced
       the defendant to 45 years’ imprisonment for first degree murder and a concurrent sentence
       of 10 years for attempted murder. The defendant spoke at the sentencing hearing. He did not
       state that he had wanted to testify during his trial.
¶ 14        On November 24, 1998, the defendant initiated postconviction proceedings with his
       initial petition. In his petition, the defendant claimed his defense attorney had a conflict of
       interest because he had previously represented the murder victim, Steward. In his attached
       affidavit, the defendant averred that Dickinson did not inform him of this conflict until after
       his trial and sentencing. The petition also claimed his defense counsel failed to call an alibi


               1
                The name is also spelled Tartorius in the record. We use the spelling from our unpublished
       decision.

                                                  -4-
       witness that was ready and willing to testify on his behalf. The defendant attached an
       affidavit from Willanika Wheaton, in which she stated that the defendant was the father of
       her children. Her affidavit claimed that “on the date of the alleged crime” the defendant had
       been dropped off at her home by his sister, Victoria. The defendant arrived at 11:30 p.m. and
       remained until the next morning. To Wheaton’s knowledge, the defendant did not leave her
       home during the night. The affidavit also stated that Wheaton had attended several pretrial
       hearings and had spoken to the defense attorney in anticipation of being called as a witness,
       but Dickinson never contacted her. Wheaton averred that had she been called, she would
       have testified to the facts set out in her affidavit.
¶ 15       On February 17, 1999, the court advanced the postconviction petition to the second stage
       and appointed the Cook County public defender’s office to represent the defendant. Over the
       course of seven years, at least five different assistant public defenders (APD) appeared on
       the defendant’s case. Little or no action was taken on the defendant’s petition. On March 2,
       2006, the defendant filed a request to have counsel appointed “other than the Office of the
       Cook County Public Defender.” The record does not contain a ruling on this request.
¶ 16       A decade after the defendant filed his original postconviction petition, APD Pamela
       Leeming filed an amended petition for postconviction relief on May 29, 2009. The petition
       argued that Dickinson had a per se conflict of interest based on his prior representation of
       the murder victim. The amended petition also claimed that counsel was ineffective for failing
       to call Wheaton and Victoria Cleveland as alibi witnesses.
¶ 17       On July 15, 2009, APD Leeming filed a supplemental petition, which attached an
       appearance form filed by defense attorney Richard Dickinson on behalf of “Magellah
       Steward” in criminal case number 88168478. The supplemental petition also added that
       Dickinson should have called Tojuna Williams and Estrella Mares as defense witnesses, each
       of whom provided an affidavit that was attached to the supplemental petition.
¶ 18       According Williams’ affidavit, dated June 22, 2005, she was in the Trumbull Park
       housing project on July 17, 1995, between 1 a.m. and 2 a.m. She averred, “[I was] with a
       married man whom I knew to be Fudgy. We were involved in a sexual act in the living room,
       when we heard ruckus.” According to her affidavit, Williams looked out the window and saw
       Steward and Amos about eight feet away. They were “arguing with several individuals.”
       When two of the men pulled out guns, she saw Steward run, and Williams and Fudgy “hit
       the deck” as they heard shots. Williams stated she knew the defendant personally and he was
       not one of the men that argued with Stewart and Amos. According to Williams, Fudgy told
       her not to speak to the police because he did not want his wife to find out she had been at his
       house. Williams left that night without telling the police what she saw. Months later,
       Williams learned that the defendant had been charged with murder and attempted murder
       arising from the shootings. She stated, “I contacted Mr. Cleveland’s mother who directed me
       to Richard Dickinson. I told him that Mr. Cleveland didn’t do the crime. He told me he
       would call me back to get my complete version of events [but] he never did.”
¶ 19       The purported affidavit from Estrella Mares bore a notary seal and the signature from a
       notary dated September 10, 2004. The affidavit, however, was not signed by Mares. The
       affidavit stated that on July 17, 1995, Mares was a resident of the Trumbull Park housing


                                                -5-
       project. At 1:30 a.m., Mares was walking home when she stopped to talk to her friend,
       Sherrocco Allen. As they were talking, Mares heard three or four loud shots “coming from
       up the street” and heard someone yell, “they are shooting.” Mares and Allen immediately fled
       for their safety. Mares never saw a gun. According to the Mares affidavit, Allen could not
       have seen “anything because it was dark and some distance away, and we were scared for our
       life. So we ran.” The Mares affidavit further stated that approximately four or five months
       after the incident, the defendant’s family contacted her to ask if she had any information.
       Mares told them what happened that night, and they asked her to contact Dickinson. She
       called Dickinson several times, but he never returned her calls. She attended court with the
       defendant’s family and spoke directly with Dickinson, who told her to call him again because
       he was too busy to speak to her that day. Mares called again but Dickinson did not call her
       back.
¶ 20        The supplemental petition filed by APD Leeming on July 15, 2009, also added a claim
       that Dickinson refused to allow the defendant to testify. In support, the supplemental petition
       had attached an affidavit from the defendant stating that Dickinson “prevented [him] from
       taking the stand.” According to the affidavit, when the defendant asked to testify, Dickinson
       stated “not right now I’m the attorney be patient.” Dickinson never called the defendant to
       testify. The defendant averred that he did not know he could inform the court directly that
       he wanted to testify. Had he testified, he would have stated that he spent the night at
       Wheaton’s house on the night of the crime, had not left, and was “miles away” when the
       shooting occurred.
¶ 21        On September 14, 2009, APD Leeming again supplemented the postconviction petition
       with a series of documents labeled “group exhibit 2.” The exhibits included a copy of the
       information sheet for “People v. Magellah Steward” under case number 881168478 and a
       transcript of the preliminary hearing in the case in which Dickinson appeared on behalf of
       Steward. At the preliminary hearing, Dickinson cross-examined the police officer who
       claimed Steward possessed a controlled substance. Group exhibit 2 also included an affidavit
       from the defendant claiming that, sometime in 1993, Steward introduced him to a man
       named Roosevelt Dikes. The defendant later learned Steward and Dikes were brothers.
       Another document in the group was an “information indictment return sheet” indicating that
       Steward, Dikes, and a man named Fred Couch were indicted in case number 92 CR 12855;
       finally, there was an appearance form showing that Dickinson appeared on behalf of Dikes
       and Couch in case number 92 CR 12855.
¶ 22        On September 21, 2009, the State filed an amended motion to dismiss the postconviction
       petition. The State argued that Wheaton’s affidavit did not provide an alibi for the defendant
       because Wheaton claimed the defendant was at her home from 11:30 p.m., “on the date of
       the alleged crime,” until the next morning. According to the State, because the crime
       occurred at approximately 1:30 a.m. on July 17, 1995, Wheaton’s statement only accounted
       for the defendant’s whereabouts from 11:30 p.m. on July 17, which was long after the time
       of the shooting. The State also argued that the defendant’s claim that he was denied his right
       to testify was untimely because he did not raise it in his original petition.
¶ 23        In his response to the State’s amended motion to dismiss, the defendant attached
       additional exhibits to support defense counsel’s prior representation of the murder victim.

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       It contained a series of police reports showing that “Magellah Steward,” on whose behalf
       attorney Dickinson filed an appearance, was the same Magellan Steward that was shot and
       killed in the defendant’s case. The response also contained affidavits from the defendant and
       Wheaton clarifying that the defendant arrived at Wheaton’s home at 11:30 p.m. on July 16,
       1995, several hours before the shooting, and remained there until the morning of July 17. The
       defendant submitted a second affidavit asserting that he informed each of his postconviction
       attorneys that his right to testify had been violated. Attached to the affidavit was a letter dated
       April 17, 2000, from one of those attorneys in which she acknowledged receipt of
       information regarding the defendant’s claim of not being allowed to testify at his trial.
¶ 24        On November 9, 2009, a supervisor from the public defender’s office requested leave to
       file an addendum to the amended petition for postconviction relief. Leeming had left the
       office that same month. On December 2, 2009, the assistant public defender assigned to the
       appear on the defendant’s case was granted the earlier requested leave to file an addendum
       to the amended petition. The addendum elaborated on the defendant’s claim that counsel was
       ineffective for failing to call his sister, Victoria, and added that defense counsel should also
       have called Dawn Temple to testify, with an affidavit from each attached.
¶ 25        Temple stated that she was at the Trumbull Park housing project on the date of the crime.
       She saw Steward and Amos fighting with four men, none of whom was the defendant.
       Temple was referred by the defendant’s family to attorney Dickinson as the defendant’s
       defense counsel. Temple stated, “I called Mr. Dickinson he told me he was busy, he took my
       name and number and told me he will interview me later, he never contacted me.”
¶ 26        Victoria Cleveland’s affidavit stated that she dropped her brother at Wheaton’s home at
       11 p.m. on July 16, 1995. She gave Dickinson this information and Dickinson informed her
       she would be called to testify. At trial, the judge excluded her from the courtroom as a
       potential witness, but Dickinson never called her as a witness.
¶ 27        On December 17, 2009, the court held a hearing regarding the inordinate delay in the case
       and the tardy submissions of the most recent affidavits. The APD informed the court that he
       was new to the case and did not know how the investigation had been conducted or the
       reason for the delay in the case. The court denied the addendum and the supplemental
       affidavit of Wheaton, which the defendant had filed to resolve the discrepancy regarding the
       date of his arrival at Wheaton’s home.
¶ 28        On May 26, 2010, the court granted the State’s amended motion to dismiss the
       defendant’s pending postconviction petitions. The court reasoned that Dickinson’s prior
       representation of Steward did not create a per se conflict of interest because the
       representation occurred seven years earlier and was limited to a preliminary hearing. The
       court ruled the defendant failed to establish that Dickinson “had a prior or contemporaneous
       professional relationship” with Steward.
¶ 29        Regarding the defendant’s claims that Dickinson failed to interview the potential alibi
       witnesses, the court stated that he did not fail to interview Wheaton because the affidavit
       stated that the two actually spoke on multiple occasions; the court concluded that Dickinson
       did not call Wheaton as a matter of trial strategy. Moreover, Wheaton’s affidavit did “not
       actually provide [the defendant] with an alibi” because, according to her affidavit, he “arrived


                                                  -7-
       at her home at or about 11:30 p.m. ‘on the date of the alleged crime [of July 17, 1995]’ ” with
       the crime having occurred around 1:30 a.m. on that date. The court rejected Estrella Mares’s
       affidavit, aside from the absence of her signature, as attributing a “conclusion about what
       [Sherrocco Allen] did or did not see[, which] is nothing more than pure speculation.”
       Williams’ affidavit did not call into question the defendant’s guilt because Williams never
       saw who fired the gun at Amos and Steward.
¶ 30       Finally, the court rejected the defendant’s claim that he was deprived of his right to
       testify. The court questioned the timeliness of the claim, noting it was not raised in his
       original petition. Further, the defendant failed to explain the delay in filing the supporting
       affidavit, which was notarized in 2004, but not filed with the court until 2009. The court
       ruled that even if the claim were timely, it lacked merit because the defendant failed to
       inform the trial court that he wanted to testify.
¶ 31       The defendant timely filed this appeal.

¶ 32                                           ANALYSIS
¶ 33       The defendant contends he made a sufficient showing of ineffective assistance of counsel
       as to each of his three claims. First, he asserts his defense attorney acted under a per se
       conflict of interest because Dickinson represented the murder victim even though that
       representation occurred seven years earlier and, it appears, was limited to pretrial matters.
       Second, the defendant argues he made a substantial showing of defense counsel’s
       ineffectiveness by his failure to call “five witnesses who made themselves known to counsel”
       and would have provided alibi testimony. Lastly, the defendant argues he made a substantial
       showing that trial counsel prevented him from testifying, which also renders his assistance
       ineffective.

¶ 34                                     Conflict of Interest
¶ 35        The defendant contends he has demonstrated a per se conflict by his defense counsel,
       which automatically mandates a new trial. He asserts that when a per se conflict of interest
       exists, a defendant is not required to show prejudice under Illinois case law as the supreme
       court ruled in People v. Hernandez, 231 Ill. 2d 134, 142 (2008). The State responds that a
       per se conflict of interest has not been shown because Dickinson’s representation of the
       victim was limited in extent and duration and had terminated years before his representation
       of the defendant began. The State further argues that the United States Supreme Court case
       of Mickens v. Taylor, 535 U.S. 162 (2002), mandates that the defendant show actual
       prejudice even if he can demonstrate a per se conflict under Illinois case law. The State
       argues the federal rule from Mickens trumps the Illinois rule. According to the State, the
       federal rule is the better reasoned rule because it negates any incentive defense counsel may
       have to withhold information as to a per se conflict until after conviction, which under the
       Illinois per se conflict rule automatically grants a defendant a new trial.
¶ 36        We are unconvinced by either the defendant’s claim that a per se conflict has been shown
       on the record before us as a matter of law or by the State’s contention that prejudice must
       first be shown before a substantial showing can be made to permit the defendant’s

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       postconviction claim to go forward.
¶ 37        Under the Post-Conviction Hearing Act (the Act), a defendant bears the burden of
       demonstrating that he qualifies for relief under the Act. 725 ILCS 5/122-1(a)(1) (West 2008).
       To merit relief, a defendant must demonstrate that his conviction was the result of a violation
       of a constitutional right. Hernandez, 231 Ill. 2d at 142. If relief is warranted under the Act,
       it generally follows a third-stage evidentiary hearing, where the defendant must prove a
       constitutional violation and the State is permitted to challenge the defendant’s evidence and
       present its own evidence. A third-stage evidentiary hearing will ensue only upon a substantial
       showing by the defendant at the second stage that his constitutional rights were violated
       during his trial. People v. Caballero, 126 Ill. 2d 248, 258-59 (1989). We review the circuit
       court’s decision to dismiss a petition at the second stage de novo. People v. Childress, 191
       Ill. 2d 168, 174 (2000).
¶ 38        Every defendant has a constitutional right to the effective assistance of counsel under the
       sixth amendment to the United States Constitution and the Constitution of Illinois. U.S.
       Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. Effective assistance inherently includes
       assistance by an attorney whose allegiance to his client is not burdened by conflicting
       interests or inconsistent obligations. Hernandez, 231 Ill. 2d at 142-43. Some conflicts of
       interest are “per se conflicts” because they fundamentally interfere with effective
       representation. Id. at 142-43. There are three types of per se conflicts: (1) “when defense
       counsel has a prior or contemporaneous association with the victim, the prosecution, or an
       entity assisting the prosecution”; (2) when defense counsel represents the defendant and a
       prosecution witness simultaneously; and (3) when defense counsel was formerly a prosecutor
       and was involved in the defendant’s case. Id. at 143. When a per se conflict exists, a
       defendant need not show actual prejudice because the manner in which prejudice arises from
       conflicting obligations is “ ‘difficult to detect and demonstrate.’ ” Id. (quoting People v.
       Spreitzer, 123 Ill. 2d 1, 16 (1988)). For this reason, “[u]nless a defendant waives his right to
       conflict-free counsel, a per se conflict is grounds for automatic reversal.” Id. (citing People
       v. Morales, 209 Ill. 2d 340, 345 (2004)).
¶ 39        In Hernandez, the defendant was recorded hiring a police informant to kill a man named
       Jaime Cepeda. Id. at 138. After the defendant was tried and convicted in 2003, he learned
       that his defense attorney had in 1999 been hired to represent the victim, Cepeda, in
       connection with an unlawful use of a weapon charge for which Cepeda failed to appear for
       trial in 2001. A bond forfeiture warrant was issued for Cepeda, with the case still unresolved
       in 2003. Id. at 139. Hernandez’s defense attorney had no contact with Cepeda after Cepeda
       allegedly fled the country. Id.
¶ 40        Hernandez filed a postconviction petition, claiming ineffective assistance of counsel. The
       petition proceeded to a third-stage evidentiary hearing, at which the defense attorney testified
       he still considered Cepeda to be his client. He remained the attorney of record for Cepeda
       and would be obligated to appear in court if Cepeda were ever arrested on the bond forfeiture
       warrant. Id. at 139-40. The circuit court concluded Hernandez’s conviction did not involve
       a per se conflict of interest; this court affirmed; the supreme court reversed.
¶ 41        The supreme court held that the attorney’s representation of both the defendant and his


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       victim created a per se conflict. Id. at 152. It was of no consequence that the attorney had not
       spoken to Cepeda in several years because representation need not be “active” or
       “contemporaneous” to give rise to a per se conflict. Id. at 151. The court decreed that any
       dual representation that is not disclosed creates a conflict “regardless of whether the
       attorney’s relationship with the alleged victim is active or not, and without inquiring into the
       specific facts concerning the nature and extent of counsel’s representation of the victim.” Id.
       at 151-52.
¶ 42        Hernandez supports the defendant’s contention that he has made a substantial showing
       that his defense attorney suffered under a conflict of interest by his prior representation of
       the murder victim. Defense counsel should have disclosed that representation to the
       defendant before representing the defendant on the charge of murdering defense counsel’s
       prior client. Also, counsel’s prior representation of the murder victim raises the specter that
       something other than trial tactics were involved in the decision not to call the numerous
       witnesses the defendant contends were made known to counsel in the course of preparing for
       trial. Though the conflict should have been disclosed, it is not certain that defense counsel’s
       long-ended representation of the murder victim has established a per se conflict of interest.
       Cf. Hernandez, 231 Ill. 2d at 141 (circuit court denied postconviction relief where defense
       attorney had no substantial contact with Cepeda for five years “and Cepeda had not been
       called as a witness at defendant’s trial”).
¶ 43        Whether the representation by defense counsel many years earlier of the murder victim
       gives rise to a per se conflict will depend on the facts adduced during the course of the
       evidentiary hearing. See People v. Gacho, 2012 IL App (1st) 091675, ¶ 32 (a third-stage
       evidentiary hearing is warranted because “the evidence adduced at any such hearing may
       affect the strength of the defendant’s allegations [of defense attorney’s conflict of interests]
       in unforeseeable ways”). As made clear by the opinion of our supreme court in Hernandez,
       in which it referenced much of the testimony of defense counsel adduced during the third-
       stage hearing, the defendant must prove his claim of per se conflict before relief can be
       granted under the Act. We also note that the postconviction petition in Hernandez was
       supported by the affidavit of the defense attorney; no such affidavit has been filed to support
       the defendant’s contention that proceedings short of what occurred in Hernandez are
       warranted here. See Hernandez, 231 Ill. 2d at 142 (a per se conflict may turn on whether the
       person with conflicting loyalties “would benefit from an unfavorable verdict for the
       defendant”). An evidentiary hearing is necessary to determine whether attorney Dickinson
       was “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’ [citation], [to permit a court to conclude that] effective assistance
       of counsel is lacking.” (Internal quotation marks omitted.) Id.
¶ 44        The State, nevertheless, points to two distinctions between this case and Hernandez,
       which it contends precludes an evidentiary hearing on the per se conflict claim. In this case,
       Dickinson represented the victim only at a preliminary hearing and that representation
       terminated a full seven years prior to the defendant’s trial. We disagree that either renders
       the showing made by the defendant here not substantial as to his contention that effective
       assistance by attorney Dickinson was lacking based on his prior representation of the murder

                                                -10-
       victim.
¶ 45       The remoteness of the attorney-client relationship between defense counsel and the
       murder victim does not preclude a finding of a per se conflict. The Hernandez court
       specifically noted that a prior relationship by defense counsel with the victim of the
       defendant’s charged offense may trigger the per se conflict rule. “We decline to impose an
       ‘active’ requirement upon this category of per se conflicts ***.” Id. at 151. “[A] prior
       relationship falls within this category.” Id. It falls to the finder of fact to determine whether
       the prior relationships gave rise to a per se conflict. Findings of fact at an evidentiary hearing
       are necessary to “resolve the question[ ] of whether counsel suffered from a per se conflict.”
       Gacho, 2012 IL App (1st) 091675, ¶ 32.
¶ 46       Nor does defense counsel’s representation of the victim in limited proceedings many
       years ago necessarily preclude a finding of a per se conflict. The supreme court stated that
       the applicability of the per se rule does not turn on the “nature and extent” of counsel’s prior
       representation. Hernandez, 231 Ill. 2d at 151-52.
¶ 47       In a last-ditch effort, the State argues that the Hernandez rule does not apply because it
       has been superceded by the United States Supreme Court case of Mickens v. Taylor, 535 U.S.
       162. In Mickens, the same attorney was appointed to represent the defendant against a state
       murder charge who had also represented the victim of the murder on unrelated charges. Id.
       at 164-65. The same juvenile judge that dismissed the pending charges against the deceased
       juvenile also appointed defense counsel to represent the defendant on the murder charge. Id.
       at 165. Defense counsel did not disclose his previous representation of the victim to either
       the court or the defendant. In federal habeas proceedings, the defendant challenged his
       conviction as a result of ineffective assistance of counsel. The defendant stressed that the
       juvenile judge had failed to inquire into the conflict, despite, as he argued, having an
       obligation to do so. After an evidentiary hearing, the federal district court denied habeas
       relief, which was affirmed on appeal. The Supreme Court held that to warrant reversal of the
       conviction, the defendant had to show that the conflict adversely affected his attorney’s
       performance. Id. In other words, even upon a showing of a conflict of interest, a defendant
       must demonstrate actual prejudice.
¶ 48       The State asks us to hold that a conflict of authority exists between Hernandez and
       Mickens and that Mickens controls. We note this argument was raised and rejected recently.
       See People v. Fountain, 2012 IL App (3d) 090558. In any event, our supreme court
       addressed the question of whether Mickens compelled a different result in Hernandez and
       determined that it did not. “[O]ur per se rule does not conflict with Mickens.” Hernandez,
       231 Ill. 2d at 146. The court gave three reasons Mickens did not control. Id. at 145-46. First,
       Mickens involved the failure of the trial court to inquire into a potential conflict, not a claim
       that the defendant was unaware of the conflict. Id. at 145. “The question before the Court
       was not whether a conflict existed, be it an actual conflict or otherwise.” Id. Second, the facts
       of Mickens distinguish it from Hernandez. Id. In Mickens, the attorney believed he had no
       continuing duty to the deceased victim, while in Hernandez, representation was ongoing. Id.
       at 145-46. Finally, “and most importantly,” the Illinois per se conflict rule fell within one of
       the exceptions enumerated by the Supreme Court in Mickens. Id. at 146. Mickens discussed
       the “ ‘high probability of prejudice arising from multiple concurrent representation, and the

                                                 -11-
       difficulty of proving that prejudice.’ ” Id. (quoting Mickens, 535 U.S. at 175). In such a case,
       “the verdict is so likely unreliable that a case-by-case determination is unnecessary.” Id.
¶ 49         We follow the Third District majority in rejecting the State’s contention that a conflict
       exists between the federal rule and the Illinois per se rule. People v. Fountain, 2012 IL App
       (3d) 090558. The Fountain court ruled it was bound by the Illinois Supreme Court’s express
       rejection of the State’s argument that the per se rule conflicts with Mickens. Id. ¶ 23. The
       Fountain court recognized that “as an intermediate court of review, we may not overrule our
       supreme court’s interpretation of a United States Supreme Court decision unless it has been
       overturned by the United States Supreme Court or abandoned by our supreme court.” Id. ¶ 23
       n.5. We are obligated to take the same approach. “[U]nless and until our supreme court or
       the United States Supreme Court overturns Hernandez, we are bound to follow it.” Id.
¶ 50         To be clear, we acknowledge that the second reason offered by the Hernandez court for
       not following Mickens–that the prior representation of the victim by defense counsel in
       Mickens had terminated while the Hernandez attorney’s representation was ongoing–has no
       application here. However, the other two bases on which the supreme court differentiated our
       per se rule from Mickens have clear application here. Even more importantly, after the
       supreme court made the factual distinction with Mickens, it went on to reiterate the rule that
       both prior and contemporaneous representation, regardless of extent, may serve as the basis
       for a per se conflict. Hernandez, 231 Ill. 2d at 151-52. That is the rule we are bound to follow
       in this case.
¶ 51         Finally, we address the State’s assertion that the per se rule gives defense attorneys a
       “golden ticket” to withhold information about a conflict of interest until after trial, thereby
       granting their clients an automatic new trial should conviction ensue. Our supreme court
       addressed this concern and concluded, “ ‘[it] is a risk that this court is prepared to take’ ” to
       ensure adequate representation for defendants. Id. at 147 (quoting People v. Coslet, 67 Ill.
       2d 127, 136 (1977)). In the instant case, the State claims that “defense counsel kept [his]
       prior representation a secret” and then the defendant sought “to use that deception as his
       ticket to a new trial.” We note, however, that the question of any deception by defense
       counsel has yet to be resolved. Even still, as the Hernandez court effectively ruled, it is
       inappropriate to punish the defendant for bad behavior on counsel’s part.
¶ 52         Typically, the remedy for improper dismissal at second-stage postconviction proceedings
       is a remand to the circuit court for an evidentiary hearing. The defendant requests, instead,
       that we reverse his conviction and remand for a new trial based on the per se conflict. While
       it is true that authority exists that permits a court to forego an evidentiary hearing, the narrow
       circumstances under which that may occur are not present in this case. See People v.
       Jimerson, 166 Ill. 2d 211, 231 (1995) (to grant postconviction relief without an evidentiary
       hearing, the facts must not be in dispute and the hearing must serve no purpose). This case
       does not permit a finding of a per se conflict of interest as a matter of law based on the
       record before us. We note one of possibly many factual disputes: the State does not accept
       that the “Magellah Steward” Dickinson represented at the preliminary hearing is the same
       “Magellan Steward” the defendant was accused of murdering, as the defendant’s exhibits
       appear to establish.


                                                 -12-
¶ 53       Furthermore, leaving aside the discrepancy in the name, it is proper for the circuit court
       to hold an evidentiary hearing to establish a factual record for further review by a higher
       court. While the question of whether a per se conflict exists is a legal one (People v. Fields,
       2012 IL 112438, ¶ 19), it is the facts of the case that drive the legal question. This court is
       not the proper forum for finding facts upon which a legal question will turn. After an
       evidentiary hearing, a reviewing court will have at its disposal a fully established factual
       record and will be in a position to fully assess the circuit court’s decision on the issue. At this
       stage of the proceedings, we only conclude that the petitioner has made a substantial showing
       that his constitutional right to undivided representation of counsel was lacking; thus, he is
       entitled to an evidentiary hearing on his claim that his attorney suffered from a per se conflict
       of interest in representing him when he had previously represented the murder victim. “In
       determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and
       in any accompanying affidavits are taken as true.” People v. Towns, 182 Ill. 2d 491, 503
       (1998).

¶ 54                                    Exculpatory Witnesses
¶ 55       That the defendant is entitled to an evidentiary hearing on his claim of ineffective
       assistance of counsel based on his claim of a per se conflict does not mean he is entitled to
       a hearing on his two remaining claims of his counsel’s ineffectiveness. Only those claims in
       which a substantial showing has been made entitle the defendant to an evidentiary hearing.
       See People v. Lara, 317 Ill. App. 3d 905, 908 (2000) (certain claims properly dismissed at
       second stage while remaining claim proceeded to third-stage evidentiary hearing).
¶ 56       Before we reach the defendant’s contention that he made a substantial showing regarding
       his claim that defense counsel was ineffective for failing to call the numerous witness that
       have provided postconviction affidavits, we first address the defendant’s challenge to the trial
       court’s decision to strike certain affidavits as untimely. The defendant urges that the trial
       court erred in striking the affidavits of three witnesses, as well as Williams’ clarifying
       affidavit as to when the defendant arrived at her home. Each of the affidavits was filed by
       appointed counsel after the original petition was amended and before the circuit court took
       under consideration the State’s amended motion to dismiss the petition. The State makes a
       three-fold response to the supplemental affidavits: the affidavits were properly stricken as
       untimely; the decision not to call the witnesses was a matter of trial strategy; and counsel’s
       actions in not calling the witnesses did not prejudice the defendant.
¶ 57       The Act provides for postconviction relief when a conviction arises from a substantial
       violation of a constitutional right. 725 ILCS 5/122-1(a)(1) (West 2008). The postconviction
       process consists of three stages. People v. Brown, 336 Ill. App. 3d 711, 716 (2002). When
       the trial court fails to address a petition within 90 days of its filing, the petition must be
       placed on the court’s docket for second-stage proceedings. 725 ILCS 5/122-2.1(b) (West
       2008). The Act provides that only one petition alleging deprivation of constitutional rights
       may be filed without the court’s permission. 725 ILCS 5/122-1(f) (West 2008). However,
       there is a distinction between an amended petition and a second postconviction petition. See
       725 ILCS 5/122-3 (West 2008) (claims “not raised in the original or an amended petition”


                                                  -13-
       are waived). Because the burden increases substantially before permission may be granted
       to file a second petition, the Act provides for liberal amendments to an original petition. 725
       ILCS 5/122-5 (West 2008). The circuit court has discretion to allow an “amendment of the
       petition *** as shall be appropriate, just and reasonable and as is generally provided in civil
       cases.” Id. “Generally, when a party asks to amend a complaint, leave to do so is freely
       given.” Brown, 336 Ill. App. 3d at 716.
¶ 58        The State provides us with no authority for its contention that the circuit court properly
       struck the affidavits the court ruled were untimely. Nor has the State directed our attention
       to any provision of the Act that expressly directs supporting affidavits, as opposed to
       pleadings, must be filed with permission of the court. Cf. 725 ILCS 5/122-5 (West 2008)
       (“The court may in its discretion make such order as to amendment of the petition or any
       other pleading, or as to pleading over, or filing further pleadings, or extending the time of
       filing any pleading other than the original petition, as shall be appropriate, just and
       reasonable and as is generally provided in civil cases.”). We are unpersuaded that the circuit
       court acted properly in striking the “untimely” affidavits. It is consistent with Illinois
       Supreme Court Rule 651(c) (eff. Dec. 1, 1984) to permit appointed counsel to supplement
       support for the defendant’s constitutional claims with such evidence as can be gathered
       before the circuit court rules on the State’s motion to dismiss. See People v. Johnson, 154
       Ill. 2d 227, 237-38 (1993) (appointed postconviction counsel has the duty to make any
       amendments to the pro se petition necessary to adequately present the defendant’s
       constitutional contentions).
¶ 59        Here, the State filed its amended motion to dismiss on September 21, 2009, which the
       circuit court granted on May 26, 2010. As best we can tell, the court granted appointed
       counsel leave to file supplemental support for the petition on December 2, 2009. The hearing
       held on December 19, 2009, to delve into the inordinate delay in addressing the petition
       revealed nothing that might suggest dilatory conduct on the defendant’s part. The defendant’s
       petition simply did not receive the attention of the public defender’s office to resolve the
       claims any sooner. The stricken affidavits did not add claims or arguments the way an
       amended pleading would. They simply added factual support to the claims already before the
       court. We see no reason to strike the affidavits as untimely. On de novo review before the
       reviewing court, each is entitled to be fully considered as to the defendant’s claim that
       counsel was ineffective for failing to call potential exculpatory witnesses. Cf. People v.
       Wilborn, 2011 IL App (1st) 092802, ¶ 71 (affidavits may serve different purposes at first and
       second stage proceedings).
¶ 60        Turning to the merits of the claim that defense counsel was ineffective for failing to
       interview potential alibi witnesses, it is difficult to see how refusing to call several witnesses
       who could have provided an alibi for the defendant constituted reasonable trial strategy. See
       People v. King, 316 Ill. App. 3d 901, 916 (2000) (failure to call alibi witness constituted
       deficient representation where no explanation was offered to support characterization of
       counsel’s inaction as trial strategy). Although we give counsel deference to make strategic
       decisions at trial, the record is barren of any reasonable strategy that may have been
       employed by counsel in calling no witnesses and presenting no evidence. At the every least,
       counsel’s decision to call no witnesses when several exculpatory witnesses presented

                                                 -14-
       themselves, according to the affidavits, constitutes a substantial showing that his
       representation was objectively unreasonable. Id. In the absence of a showing of reasonable
       trial strategy, a sufficient showing has been made that counsel’s decision prejudiced the
       defendant. See People v. Bryant, 391 Ill. App. 3d 228, 241-42 (2009) (failure to call
       witnesses prejudiced defendant and thus constituted ineffective assistance of counsel). It
       seems clear that putting on alibi evidence before the jury would have increased the
       defendant’s chances of acquittal.
¶ 61        The defendant has made a substantial showing that his constitutional right was violated
       by defense counsel’s failure to investigate fully the possible testimony of exculpatory
       witnesses to entitle him to an evidentiary hearing. Whether the witnesses are truly
       exculpatory and their absence at trial prejudicial, it is the defendant’s burden to prove at a
       third-stage evidentiary hearing before a circuit court judge as trier of fact. We note that the
       defendant’s answer to discovery spread of record does not assert an alibi defense. See People
       v. Lara, 317 Ill. App. 3d 905, 908 (2000) (the circuit court properly denied the defendant
       postconviction relief after an evidentiary hearing on the claim of ineffective assistance of
       counsel where the defendant did not prove that trial counsel’s deficient representation
       prejudiced the defendant).

¶ 62                                        Right to Testify
¶ 63        The defendant’s last argument is that trial counsel was ineffective in preventing him from
       testifying in his own defense. The State counters that the defendant forfeited this argument
       because he did not raise it in his original petition and the claim does not relate back to those
       raised in the original petition. The State further argues that the claim lacks merit because the
       defendant did not inform the trial court of his desire to testify.
¶ 64        We reject the State’s contention that the defendant was bound to proceed with only those
       claims raised in his original petition. Our supreme court has made clear, that while appointed
       counsel is under no obligation to add new claims to a pro se petition in carrying out his duty
       to provide reasonable assistance under Illinois Supreme Court Rule 651(c) (eff. Dec. 1,
       1984), he is free to do so. See People v. Pendleton, 223 Ill. 2d 458, 476 (2006) (appointed
       postconviction counsel may raise other issues than those raised in the pro se petition, though
       counsel is under no duty to do so). Nevertheless, we agree with the State that the defendant
       has not made a substantial showing that he was prevented from testifying by his defense
       attorney.
¶ 65        A defendant has a constitutional right to testify and only he can waive this right. Jones
       v. Barnes, 463 U.S. 745, 751 (1983). As with many constitutional rights that may waived,
       it is incumbent upon the defendant to assert his right to testify such that his right can be
       vindicated during the course of the trial. People v. Thompkins, 161 Ill. 2d 148, 178 (1994);
       People v. Knox, 58 Ill. App. 3d 761, 767 (1978) (a defendant must make known to the court
       his objection to defense counsel’s decision to rest without presenting the defendant’s
       testimony).
¶ 66        At this stage of the proceedings, we take all the defendant’s factual assertions as true. The
       defendant claims that after his attorney announced that the defense rested its case, he

                                                 -15-
       informed the attorney that he wished to testify. To this, counsel responded, “not right now,
       I’m the attorney be patient.” At no point did the defendant inform the court that he wished
       to testify or that counsel refused to permit him to do so. The defendant claims he did not
       inform the court of his decision because he was not aware he could address the court. The
       defendant claims that he waited patiently to be called to the stand; however, the defendant
       also claims that this conversation took place after counsel announced the defense was resting
       its case. It was incumbent upon the defendant to raise his desire to testify, at the very least,
       before closing arguments were heard by the jury. See Thompkins, 161 Ill. 2d at 178; Knox,
       58 Ill. App. 3d at 767. Because the defendant’s silence can be taken as acquiescence in
       defense counsel’s decision to rest without calling the defendant as a witness, neither the
       record nor his affidavit provides substantial support for his claim that he was thwarted from
       testifying.
¶ 67        While the defendant claims he was unaware that he could address the court at the time
       of trial to announce his desire to testify, we note that the defendant addressed the court at
       sentencing. He spoke after counsel had argued for a new trial based on alleged trial errors.
       At no point did the defendant state or even intimate that he was precluded from testifying
       before the jury. Illinois courts have voiced concern over the ease with which this
       ineffectiveness of counsel claim can be made. See, e.g., People v. Brown, 54 Ill. 2d 21, 24
       (1973) (a defendant “will stand to gain if he can succeed in establishing that he did not testify
       because his lawyer refused to permit him to do so”). More than the defendant’s self-serving
       statement is required to demonstrate that he truly desired to testify, which defense counsel
       failed to observe. Thompkins, 161 Ill. 2d at 177 (claim rejected where “the defendant was
       silent when counsel rested the case without having called the defendant to the stand”).
       Although the modern practice of inquiring of the defendant, outside the presence of the jury,
       as to whether he or she wishes to testify, was not followed here, it is incumbent upon the
       defendant to invoke his own right to testify. Knox, 58 Ill. App. 3d at 767 (where no
       contemporaneous claim is made during the course of his trial that the defendant desires to
       testify, his belated claim is nothing more than an afterthought). Because the defendant took
       no steps to invoke his right to testify during his trial, his claim fails to warrant consideration
       at a third-stage evidentiary hearing.

¶ 68                                        CONCLUSION
¶ 69       The defendant has made a substantial showing that his trial attorney was subject to a per
       se conflict where his trial attorney had previously represented the murder victim and did not
       disclose this conflict to the defendant. The trial court erred in dismissing the defendant’s
       claim for ineffective assistance based on counsel’s failure to call several exculpatory
       witnesses. These witnesses were the only evidence available to rebut the State’s case and
       defense counsel’s unexplained failure to call the witnesses made a substantial showing of
       deficient performance and prejudice. We reverse the dismissal of the first two claims of
       ineffective assistance of counsel and remand for a third-stage evidentiary hearing on the per
       se conflict claim and the claim that defense counsel unreasonably failed to call numerous
       alibi witnesses. The trial court did not err in dismissing the defendant’s claim that his defense
       counsel prevented him from testifying where the defendant voiced no objection to counsel’s

                                                 -16-
       decision to rest without the defendant’s testimony.

¶ 70      Reversed and remanded with directions.




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