                           ILLINOIS OFFICIAL REPORTS
                                         Supreme Court




                                People v. Fields, 2012 IL 112438




Caption in Supreme         THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ALBERT
Court:                     L. FIELDS, Appellee.



Docket No.                 112438


Filed                      September 20, 2012
Modified Upon Denial
of Rehearing               November 26, 2012


Held                       Defense counsel did not have a per se conflict of interest when the State,
(Note: This syllabus       in attempting to show propensity for sex crimes, called as a witness a
constitutes no part of     young female who had been the victim of a different sex offense by the
the opinion of the court   defendant and counsel had been her guardian ad litem in an unrelated
but has been prepared      earlier matter.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Appellate Court for the Third District; heard in that
Review                     court on appeal from the Circuit Court of Henry County, the Hon. Larry
                           S. Vandersnick, Judge, presiding.



Judgment                   Appellate court judgment reversed.
                           Cause remanded.
Counsel on                Lisa Madigan, Attorney General, of Springfield, and Terence Patton,
Appeal                    State’s Attorney, of Cambridge (Michael A. Scodro, Solicitor General,
                          and Michael M. Glick and Michael R. Blankenheim, Assistant Attorneys
                          General, of Chicago, and Patrick Delfino, Stephen E. Norris and Patrick
                          D. Daly, of the Office of the State’s Attorneys Appellate Prosecutor, of
                          Mt. Vernon, of counsel), for the People.

                          Michael J. Pelletier, State Appellate Defender, Peter A. Carusona, Deputy
                          Defender, and Glenn Sroka, Assistant Appellate Defender, of the Office
                          of the State Appellate Defender, of Ottawa, for appellee.


Justices                  JUSTICE THOMAS delivered the judgment of the court, with opinion.
                          Chief Justice Kilbride and Justices Freeman, Garman, Karmeier, Burke,
                          and Theis concurred in the judgment and opinion



                                            OPINION

¶1        Following a jury trial, defendant, Albert L. Fields, was convicted of two counts of
      predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2006)), three
      counts of criminal sexual assault (720 ILCS 5/12-13(a)(1), (a)(3) (West 2006)), and two
      counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(b) (West 2006)). Defendant
      was sentenced to 36 years’ imprisonment. Defendant appealed, contending that he had been
      denied the effective assistance of counsel because his trial attorney labored under a per se
      conflict of interest. A divided appellate court agreed, reversing defendant’s convictions and
      sentence, and remanding for a new trial. 409 Ill. App. 3d 398.
¶2        This court allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26,
      2010). We now reverse the judgment of the appellate court.

¶3                                       BACKGROUND
¶4        Defendant was charged by information in January 2007. Specifically, the information
      charged predatory criminal sexual assault in that between 1999 and October 27, 2004,
      defendant, who was age 17 or older, on two separate occasions placed his penis in the mouth
      of his stepdaughter, K.N.J., when she was younger than 13. The information charged
      criminal sexual assault in that between 1999 and February 2006, defendant, on two separate
      occasions, placed his penis in the mouth of K.N.J. by the use of force or threat of force. The
      information charged two counts of criminal sexual assault occurring between 1999 and
      February 2006, in that defendant, on two separate occasions, placed his penis in K.N.J.’s
      mouth when she was younger than 18 and he was her stepfather. Finally, the information
      charged that between 2001 and February 2006, defendant committed aggravated criminal

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     sexual abuse in that defendant fondled K.N.J.’s breasts and vagina, and made her fondle his
     penis, for his sexual arousal and gratification, when K.N.J. was younger than 18 and he was
     her stepfather. The public defender of Henry County was appointed to represent defendant.
¶5        Prior to trial, the State moved to introduce other-crimes evidence pursuant to section 115-
     7.3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-7.3 (West 2006)). The State
     sought to introduce evidence that defendant had sexually abused another child, in order to
     show that defendant had a propensity to commit sex crimes. The State’s section 115-7.3
     motion alleged that, in 2007, defendant had been convicted in the circuit court of Rock Island
     County of the aggravated criminal sexual abuse of C.S., a nine-year-old girl. The trial court
     granted the State’s motion, ruling that the State could present testimony about the prior
     crime, along with a certified copy of defendant’s conviction for that crime.
¶6        Thereafter, defendant filed a complaint against his attorney with the Illinois Attorney
     Registration and Disciplinary Commission. The trial court allowed defendant’s attorney to
     withdraw from the case, and appointed Edward Woller to represent defendant. Woller had
     represented defendant before, including representing defendant in the Rock Island County
     case.
¶7        Defendant’s jury trial commenced on June 5, 2008. At defendant’s trial, a certified copy
     of defendant’s conviction of aggravated criminal sexual abuse against C.S. in the Rock Island
     County case was admitted into evidence on the issue of defendant’s propensity to commit
     the offenses for which he was charged in the instant case.1 In addition, C.S. testified that in
     2005, defendant sexually abused her when he was living with her and her mother in Moline,
     Illinois. C.S. said that she was nine years old at the time. C.S. testified that one morning,
     defendant gave her a book containing pictures of naked girls “showing their private parts,”
     and told C.S. to put the book on his weight set in the basement. Defendant then followed
     C.S. into the basement. Defendant pulled down his pants, grabbed C.S.’s hand, put C.S.’s
     hand on his “wee wee,” and made C.S. rub it until he ejaculated. Defendant also put his hand
     down C.S.’s pants and stuck his finger inside her. Defendant then pushed C.S. down on the
     ground and told her “to suck his wee wee.” C.S. refused. Defendant told C.S. if she told
     anyone, he would beat her and ground her. After defendant had kicked C.S. and her mother
     out of the house, C.S. told her mother about the abuse.
¶8        K.N.J., defendant, and several other witnesses also testified at defendant’s trial. At the
     conclusion of his jury trial, defendant was convicted on all counts concerning K.N.J. The
     trial court denied defendant’s motion for a new trial. After vacating defendant’s three
     criminal sexual assault convictions on one-act, one-crime grounds, the trial court imposed
     consecutive sentences of 18 years’ imprisonment for each conviction of predatory criminal
     sexual assault of a child, and concurrent sentences of six years’ imprisonment for each


             1
               Defendant’s conviction for the aggravated criminal sexual abuse of C.S. in the Rock Island
     County case was reversed on July 20, 2010. People v. Fields, No. 3-07-0305 (2010) (unpublished
     order under Supreme Court Rule 23). The appellate court in the Rock Island County case found that
     defense counsel labored under a per se conflict of interest because he had previously represented
     C.S., the victim in the case, and defendant did not waive the conflict.

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       conviction of aggravated criminal sexual abuse.
¶9          Defendant then appealed, arguing that his attorney, Woller, had a per se conflict of
       interest because Woller had served as a guardian ad litem for C.S. in a case that ended in
       2002 or 2003. Woller had disclosed that fact during pretrial proceedings in the Rock Island
       County case, but did not disclose his prior representation of C.S. in the instant case. The
       guardian ad litem proceedings were unrelated to either of the criminal cases brought against
       defendant. Defendant claimed that the cause should be remanded for a new trial because of
       the per se conflict of interest.
¶ 10        A majority of the appellate court agreed. The appellate court, citing this court’s decisions
       in People v. Taylor, 237 Ill. 2d 356 (2010), and People v. Hernandez, 231 Ill. 2d 134 (2008),
       noted that there are three situations where a per se conflict of interest exists: (1) where
       defense counsel has a prior or contemporaneous association with the victim, the prosecution,
       or an entity assisting the prosecution; (2) where defense counsel contemporaneously
       represents a prosecution witness; and (3) where defense counsel was a former prosecutor
       who had been personally involved in the prosecution of the defendant. 409 Ill. App. 3d at
       401. The majority held that C.S. was an entity assisting the prosecution, as set forth in the
       first situation, so that defense counsel’s prior association with C.S. constituted a per se
       conflict of interest. Id. at 402. The appellate court rejected the State’s argument that “entity”
       applied only to a municipality, rather than a person. Id. at 403.
¶ 11        The majority also held that even if C.S. was not an “entity” for purposes of finding a per
       se conflict of interest, defendant’s conviction nonetheless had to be reversed because C.S.
       would benefit from an unfavorable verdict for defendant. 409 Ill. App. 3d at 404. The
       majority noted that in Hernandez, 231 Ill. 2d at 142, this court held that when a defendant’s
       attorney has a tie to a person or entity that would benefit from an unfavorable verdict for the
       defendant, a per se conflict of interest arises. 409 Ill. App. 3d at 404.
¶ 12        The majority found that there were three intangible benefits to C.S. that would result
       from an unfavorable verdict for the defendant. First, C.S. would benefit from having her
       assailant incarcerated. 409 Ill. App. 3d at 405. Second, defendant’s conviction for the same
       crime against another young girl would validate C.S.’s own claim of sexual abuse against
       defendant. Id. Third, assisting the State in convicting defendant would allow C.S. the
       opportunity to help another young girl who had been subjected to the same horrific behavior
       that C.S. had to endure. Id. The majority stated that they could not assert with any confidence
       that defense counsel’s representation of defendant was not hobbled, fettered, or restrained
       by his prior commitments to C.S. Id.
¶ 13        Justice Schmidt dissented. 409 Ill. App. 3d at 406 (Schmidt, J., dissenting). Justice
       Schmidt stated that the majority’s finding that C.S. was an entity assisting the prosecution
       rendered superfluous the second category of conduct that gave rise to a per se conflict of
       interest: where defense counsel contemporaneously represents a prosecution witness. Id.
       Under the majority’s holding, any representation that falls under the second category would
       necessarily also fall under the first category. Id. Justice Schmidt further stated that the
       majority’s holding ignored this court’s precedent, namely, People v. Enoch, 146 Ill. 2d 44
       (1991), where this court stated that defense counsel’s prior representation of a State’s witness


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       does not establish a per se conflict of interest between defense counsel and a defendant. Id.
       at 406-07.

¶ 14                                           ANALYSIS
¶ 15        The State now appeals, arguing that defense counsel’s past representation of C.S. did not
       create a per se conflict of interest. Like the appellate court dissent, the State argues that the
       majority’s holding is contrary to a line of cases where our court has held that a per se conflict
       of interest exists only if the professional relationship between defense counsel and the
       witness is contemporaneous with defense counsel’s representation of the defendant. The
       State notes that, in this case, Woller’s representation of C.S. ended in 2002 or 2003, well
       before Woller’s representation of defendant in the instant case began in 2007. Consequently,
       Woller did not have a contemporaneous conflicting professional commitment to C.S. that
       disqualified him from representing defendant.
¶ 16        The State further contends that the majority’s finding that C.S. was an “entity assisting
       the prosecution” is contrary to this court’s precedent which establishes that an “entity
       assisting the prosecution” encompasses only organizational clients.
¶ 17        Finally, the State argues that the majority’s alternative holding that C.S. was a beneficiary
       of defendant’s conviction rests on impermissible speculation. According to the State, under
       the appellate court’s general definition of the benefits C.S. allegedly received from
       defendant’s conviction, almost all prosecution witnesses would be considered beneficiaries
       of a guilty verdict. It is well settled that a criminal defendant’s sixth amendment right to
       effective assistance of counsel includes the right to conflict-free representation. Taylor, 237
       Ill. 2d at 374. There are two categories of conflict of interest: per se and actual. Id. A per se
       conflict of interest exists where certain facts about a defense attorney’s status, by themselves,
       engender a disabling conflict. Id. Stated otherwise, a per se conflict arises when a
       defendant’s attorney has a tie to a person or entity that would benefit from an unfavorable
       verdict for the defendant. Hernandez, 231 Ill. 2d at 142.
¶ 18        As the appellate court stated, this court has found three situations where a per se conflict
       exists: (1) where defense counsel has a prior or contemporaneous association with the victim,
       the prosecution, or an entity assisting the prosecution; (2) where defense counsel
       contemporaneously represents a prosecution witness; and (3) where defense counsel was a
       former prosecutor who had been personally involved with the prosecution of defendant.
       Taylor, 237 Ill. 2d at 374; Hernandez, 231 Ill. 2d at 143-44. If a per se conflict is found, a
       defendant need not show that the conflict affected the attorney’s actual performance. Taylor,
       237 Ill. 2d at 374-75. Unless a defendant waives his right to conflict-free representation, a
       per se conflict is automatic grounds for reversal. Taylor, 237 Ill. 2d at 375.
¶ 19        When the record shows that the facts are undisputed, the issue of whether a per se
       conflict exists is a legal question that this court reviews de novo. Hernandez, 231 Ill. 2d at
       144. Here, the facts concerning Woller’s representation of defendant and C.S. are undisputed.
       Accordingly, our review of the appellate court’s decision finding a per se conflict is de novo.
¶ 20        Upon review, we find that the appellate court majority erred in holding that a per se
       conflict of interest existed in this case. Illinois supreme court case law has clearly and

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       consistently held that, in cases where defense counsel has represented a State’s witness, a per
       se conflict of interest will not be held to exist unless the professional relationship between
       the attorney and the witness is contemporaneous with defense counsel’s representation of the
       defendant.
¶ 21       Thus, in People v. Robinson, 79 Ill. 2d 147, 161 (1979), the court noted that defense
       counsel had a conflict of interest because the attorney still had an active attorney client
       relationship with a prosecution witness. In so holding, Robinson found that the case before
       it was consistent with United States v. Jeffers, 520 F.2d 1256 (7th Cir. 1975), where the court
       rejected a claim that defense counsel’s prior representation of a prosecution witness in an
       earlier criminal trial constituted a conflict of interest. The Robinson court noted that, in
       contrast to the case before it, there was no existing personal relationship between the defense
       attorney and the prosecution witness at the time of the defendant’s trial in Jeffers. Robinson,
       79 Ill. 2d at 161.
¶ 22       Thereafter, in People v. Free, 112 Ill. 2d 154, 168 (1986), the court again stated that:
                “In a situation where defense counsel has represented a State’s witness, a per se
                conflict of interest will not be held to exist unless the professional relationship
                between the attorney and the witness is contemporaneous with counsel’s
                representation of the defendant.”
¶ 23       The assistant public defender representing the defendant in Free had previously
       represented a witness who testified adversely to the defendant at a hearing on a motion to
       suppress prior to defendant’s trial. The court held that defense counsel did not have a per se
       conflict of interest, even though the record did not formally show when defense counsel’s
       representation of the witness had ended. The court concluded:
                “[I]t would be unreasonable under the circumstances to presume that the assistant
                public defender had a continuing professional relationship with [the witness] after
                [the witness’s] testimony was suppressed. That [the witness’s] testimony was
                suppressed before the defendant’s trial and that [defense counsel] did not undertake
                the representation of [defendant] until the post-conviction petition was filed supports
                the notion he no longer represented [the witness].” Free, 112 Ill. 2d at 168-69.
¶ 24       As noted, subsequent cases consistently have held that a per se conflict exists where
       defense counsel contemporaneously represents a prosecution witness. See Taylor, 237 Ill. 2d
       at 374 (one of three situations where per se conflict exists is where defense counsel
       contemporaneously represents a prosecution witness); Hernandez, 231 Ill. 2d at 143 (one of
       three situations where per se conflict exists is where defense counsel contemporaneously
       represents a prosecution witness); People v. Morales, 209 Ill. 2d 340, 346 (2004) (court has
       “found a per se conflict when defense counsel contemporaneously represented a prosecution
       witness”); People v. Moore, 189 Ill. 2d 521, 538 (2000) (“per se conflict of interest exists
       where defense counsel engages in a contemporaneous representation of the defendant and
       the State’s witness”); Enoch, 146 Ill. 2d at 52 (where defense counsel has previously
       represented a prosecution witness, a per se conflict of interest exists if the professional
       relationship between the defense attorney and the witness is contemporaneous with defense
       counsel’s representation of the defendant); People v. Thomas, 131 Ill. 2d 104, 111 (1989)


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       (where defense counsel has represented a State’s witness, a per se conflict exists if the
       professional relationship between defense counsel and the witness is contemporaneous with
       counsel’s representation of defendant); People v. Flores, 128 Ill. 2d 66, 83 (1989) (where
       defense counsel has represented a prosecution witness, per se conflict of interest exists if the
       professional relationship between the defense attorney and the witness is contemporaneous
       with counsel’s representation of the defendant).
¶ 25       Notably, in none of the preceding cases did the court hold that a defense counsel’s prior
       representation of a prosecution witness constituted a per se conflict of interest. Nor did any
       of those decisions find that the prosecution witness was an “entity assisting the prosecution.”
       The law is clear. A per se conflict of interest will be found where defense counsel’s
       representation of a prosecution witness is contemporaneous with defense counsel’s
       representation of the defendant. Here, Woller’s representation of C.S. had ended four to five
       years prior to his representation of defendant. Accordingly, Woller’s representation of C.S.
       was not contemporaneous with his representation of defendant and did not present a per se
       conflict of interest.
¶ 26       The appellate court acknowledged that Woller’s representation of C.S. was not
       contemporaneous with his representation of defendant, for purposes of the second situation
       where a conflict of interest will be found. Nonetheless, the appellate court majority found
       even though Woller’s representation of C.S. was not contemporaneous with his
       representation of defendant, a per se conflict of interest existed because C.S. was an “entity
       assisting the prosecution,” as set forth in the first situation where a per se conflict of interest
       will be found. In contrast to the second situation, the first situation where a per se conflict
       of interest will be found includes defense counsel’s prior association, as well as his
       contemporaneous association, with the victim, the prosecution, or an entity assisting the
       prosecution.
¶ 27       The appellate court stated that C.S. clearly was “assisting the prosecution” because she
       was testifying for the State against the defendant. 409 Ill. App. 3d at 401. Accordingly, the
       appellate court addressed whether C.S. could be characterized as an entity, or whether this
       court intended that only a municipality, organization or company could qualify as an entity.
¶ 28       In addressing this issue, the appellate court noted that there was no authority expressly
       defining the term “entity” in the context of a per se conflict of interest. 409 Ill. App. 3d at
       401. Consequently, the appellate court looked to dictionary definitions of the term “entity,”
       to ascertain the plain and ordinary meaning of the term. The court noted that both West’s
       Legal Thesaurus and Dictionary and Black’s Law Dictionary defined “entity” to include both
       an organization and an individual. Id. at 402. The majority therefore concluded that this court
       “chose to use the term ‘entity’ in order to incorporate both individuals and organizations.”
       Id.
¶ 29       The appellate court erred in so holding. As discussed, this court has always held that a
       defense counsel’s representation of a prosecution witness constitutes a per se conflict of
       interest when the representation is contemporaneous with defense counsel’s representation
       of the defendant, but is not a per se conflict of interest when defense counsel’s representation
       of the witness is prior to counsel’s representation of defendant. We again point out that, in


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       contrast, the first situation where a per se conflict of interest exists encompasses defense
       counsel’s prior or contemporaneous association with the victim, the prosecution or an entity
       assisting the prosecution. Given that defense counsel’s prior representation of a prosecution
       witness does not constitute a per se conflict of interest, while his prior association with an
       entity assisting the prosecution does constitute a per se conflict, a prosecution witness
       necessarily cannot also be an “entity assisting the prosecution.” As both the appellate court
       dissent and the State asserted, to find that an individual is an entity would render superfluous
       the second situation where a per se conflict exists.
¶ 30        Moreover, although the appellate court is correct that this court has never expressly
       defined the term “entity,” it was unnecessary to do so because our case law has always
       recognized a difference between a person and an entity in the context of per se conflicts of
       interest. For example, in People v. Spreitzer, in discussing per se conflicts of interest, the
       court noted that “[t]he justification for treating these conflicts as per se has been that the
       defense counsel in each case had a tie to a person or entity—either counsel’s client,
       employer, or own previous commitments—which would benefit from an unfavorable verdict
       for the defendant.” (Emphasis added.) People v. Spreitzer, 123 Ill. 2d 1, 16 (1988). The court
       reiterated this distinction in People v. Kitchen, 159 Ill. 2d 1, 29 (1994), citing Spreitzer for
       the rule that “a per se conflict of interest exists in instances where defense counsel had an
       association with the prosecution or victim, or with a person or entity who would benefit from
       the defendant’s prosecution.” (Emphasis added.) One year later, in People v. Janes, 168 Ill.
       2d 382, 387 (1995), the court again stated, “[a] per se conflict of interest arises where
       defense counsel has a tie to a person or entity which would benefit from an unfavorable
       verdict for the defendant.” (Emphasis added.) The distinction between person and entity was
       repeated in Moore, when the court observed that “per se conflicts involve situations where
       defense counsel has some tie to a person or entity that would benefit from an unfavorable
       verdict for the defendant.” (Emphasis added.) Moore, 189 Ill. 2d at 538. As recently as 2008,
       the court again stated that a per se conflict arises “[w]hen a defendant’s attorney has a tie to
       a person or entity that would benefit from an unfavorable verdict for the defendant.”
       (Emphasis added.) Hernandez, 231 Ill. 2d at 142.
¶ 31        In addition, as the State points out, the only case where this court has held that defense
       counsel’s representation of an “entity assisting the prosecution” created a per se conflict of
       interest involved a defense attorney who simultaneously represented the defendant and also
       served as a part-time attorney for the municipality where the defendant was being prosecuted.
       See People v. Washington, 101 Ill. 2d 104 (1984). The State notes, as it did in the appellate
       court, that in People v. Lawson, the court cited Washington as an example of an entity
       assisting the prosecution. See People v. Lawson, 163 Ill. 2d 187, 211 (1994) (“[t]he common
       element in these [per se] cases was that the defense counsel was previously or
       contemporaneously associated with either the victim (Stoval, Coslet), the prosecution (Fife,
       Kester), or an entity assisting the prosecution (Washington)”).
¶ 32        The appellate court majority dismissed the State’s contention that the decisions in
       Washington and Lawson demonstrate that the phrase “entity assisting the prosecution” was
       intended to encompass only organizational clients. The majority stated that the “supreme
       court may have intended to draw the distinction urged by the State, but the simple citation

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       to an example does not compel that conclusion.” (Emphasis in original.) 409 Ill. App. 3d at
       403.
¶ 33        Although the majority is correct that a “simple citation” may not compel that conclusion,
       when considered with all supreme court precedent addressing per se conflicts of interests,
       it is clear that such a conclusion is, in fact, compelled. The only supreme court case to find
       a per se conflict involving “an entity assisting the prosecution” is a case involving a
       municipality. With regard to prosecution witnesses, this court has recognized an entirely
       separate situation where a per se conflict of interest exists. In addition, this court has always
       distinguished between person and entity in discussing per se conflict cases. Taken together,
       there is no doubt that this court intended to draw the distinction urged by the State: that an
       entity does not include a person for purposes of per se conflicts of interest. The appellate
       court majority erred in holding otherwise.
¶ 34        We also briefly address the majority’s attempts to distinguish the decisions in Enoch and
       Flores, where our court held that a per se conflict of interest does not arise from defense
       counsel’s prior representation of a State witness. The appellate court found those cases
       distinguishable because neither case “dealt with the conflict category at issue in the present
       case, specifically, an entity assisting the prosecution.” 409 Ill. App. 3d at 403. Rather, “both
       dealt with the conflict category of whether defense counsel contemporaneously represented
       a prosecution witness.” (Emphasis in original.) Id. The appellate court also distinguished
       Enoch and Flores on the ground that the potential conflicts in those cases were disclosed to
       the trial court. Id. at 403-04.
¶ 35        The appellate court’s attempts to distinguish Enoch and Flores are unavailing. It is
       because those cases dealt with the conflict category of whether defense counsel
       contemporaneously represented a prosecution witness that they are directly on point. Those
       cases did not address the category of entity assisting the prosecution because there was no
       need to do so. In addition, it was the fact that defense counsel’s representation of the
       prosecution witness was prior to his representation of the defendant that eliminated any per
       se conflict in that case, not the fact that any potential conflict was disclosed to the trial court.
       Enoch and Flores are directly on point. Defense counsel’s prior representation of C.S. in this
       case did not create a per se conflict of interest.
¶ 36        Before we turn to the appellate court’s second reason for finding that there was a per se
       conflict in this case, we address defendant’s response to the State’s claim that the appellate
       court’s holding would render superfluous the situation concerning defense counsel’s
       representation of a prosecution witness. Defendant argues that the State has “missed the
       forest for the trees” because this court has never stated that there are three mutually exclusive
       categories of per se conflicts, nor has this court held that there can never be additional
       situations where a per se conflict can be found to exist.
¶ 37        While this court may never have expressly stated that the three situations giving rise to
       a per se conflict of interest are distinct, as we discussed supra, it is clear that the nature of
       the first and second per se conflict situations necessarily renders them distinct. If an entity
       assisting the prosecution includes prosecution witnesses, there would be no need to recognize
       the second situation where a per se conflict of interest exists, nor would there be any


                                                   -9-
       consistency in holding that only defense counsel’s contemporaneous representation of a
       prosecution witness constitutes a per se conflict of interest. Further, because this case
       involves defense counsel’s representation of a prosecution witness, which is addressed in the
       second situation where a per se conflict of interest will be found, there is no need to consider
       whether defendant is correct that additional situations might be found where a per se conflict
       of interest exists.
¶ 38        We also note that defendant was not left without recourse in this case. If defendant
       believed that his attorney’s prior representation of C.S. constituted a conflict of interest,
       defendant could have argued that his counsel had an actual conflict of interest. “If a per se
       conflict does not exist, a defendant may still establish a violation of his right to effective
       assistance of counsel by showing an actual conflict of interest that adversely affected his
       counsel’s performance.” Hernandez, 231 Ill. 2d at 144.
¶ 39        We next address the appellate court’s alternate basis for reversing defendant’s conviction
       in this case. The appellate court majority held that even if C.S. was not an entity assisting the
       prosecution, reversal of defendant’s conviction was still required because C.S. would benefit
       from an unfavorable verdict for defendant. As support, the majority cites this court’s
       decisions in Hernandez and Janes as holding that, “when a defendant’s attorney has a tie to
       a person or entity that would benefit from an unfavorable verdict for the defendant, a per se
       conflict arises.” 409 Ill. App. 3d at 404. As noted, the appellate court found there were three
       intangible benefits to C.S. in having defendant convicted of sexually abusing K.N.J. which
       gave rise to a per se conflict of interest.
¶ 40        The appellate court is correct that this court has stated, “[w]hen a defendant’s attorney
       has a tie to a person or entity that would benefit from an unfavorable verdict for the
       defendant, a per se conflict arises.” Hernandez, 231 Ill. 2d at 142 (citing Janes, 168 Ill. 2d
       at 387). Contrary to the appellate court’s interpretation, however, that statement does not set
       forth an additional, fourth situation where a per se conflict of interest might be found, nor
       does it provide an alternate basis for finding a per se conflict of interest. Rather, the
       statement describes the justification for the per se rule. After noting that a per se conflict
       arises when a defendant’s attorney has a tie to a person or entity that would benefit from an
       unfavorable verdict for the defendant, the Hernandez court continued:
                    “We explained the justification underlying the per se rule in Spreitzer. First, we
                noted that counsel’s knowledge that a result favorable to his other client or
                association would inevitably conflict with defendant’s interest ‘might “subliminally”
                affect counsel’s performance in ways [that are] difficult to detect and demonstrate.’
                Spreitzer, 123 Ill. 2d at 16. Also, we noted the possibility that counsel’s conflict
                would subject him to ‘ “later charges that his representation was not completely
                faithful.” [Citations.]’ Spreitzer, 123 Ill. 2d at 17.” Hernandez, 231 Ill. 2d at 143.
       Once the Hernandez court set forth the justification for the per se conflict rule, the court then
       identified the three situations where a per se conflict exists.
¶ 41        The appellate court erred in construing the justification for the per se conflict rule as
       creating an additional, alternate basis for finding a per se conflict in this case. Pursuant to
       long-standing precedent, this court has recognized three situations where a per se conflict of


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       interest exists. The facts in this case potentially implicate the second situation because
       Woller previously had represented the prosecution witness. However, Woller’s
       representation of C.S. had ended three to four years prior to his representation of defendant.
       Accordingly, Woller did not contemporaneously represent C.S. and the defendant. There
       was, then, no per se conflict in this case, and no basis to reverse defendant’s conviction and
       sentence.

¶ 42                                    CONCLUSION
¶ 43      For all of the foregoing reasons, we reverse the appellate court’s decision. The cause is
       remanded to the appellate court for consideration of those issues previously raised but left
       unresolved owing to that court’s disposition.

¶ 44      Appellate court judgment reversed.
¶ 45      Cause remanded.




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