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                               Appellate Court                            Date: 2019.03.13
                                                                          15:50:59 -05'00'




                  People v. Acevedo, 2018 IL App (2d) 160562



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



District & No.     Second District
                   Docket No. 2-16-0562



Filed              November 27, 2018



Decision Under     Appeal from the Circuit Court of Lake County, No. 14-CF-1069; the
Review             Hon. Mark L. Levitt, Judge, presiding.



Judgment           Reversed and remanded.


Counsel on         James E. Chadd, Thomas A. Lilien, and Erin S. Johnson, of State
Appeal             Appellate Defender’s Office, of Elgin, for appellant.

                   Michael G. Nerheim, State’s Attorney, of Waukegan (Patrick Delfino,
                   David J. Robinson, and Ivan O. Taylor Jr., of State’s Attorneys
                   Appellate Prosecutor’s Office, of counsel), for the People.



Panel              JUSTICE BIRKETT delivered the judgment of the court, with
                   opinion.
                   Presiding Justice Hudson and Justice Burke concurred in the judgment
                   and opinion.
                                                OPINION

¶1        In the direct appeal of his conviction of unlawful possession of a weapon by a felon,
     defendant, Daniel Acevedo, argues that we should reverse his conviction and remand for a new
     trial because he did not knowingly waive his right to conflict-free counsel. Alternatively, he
     argues that he was improperly assessed a $250 DNA analysis fee and a $300 Violent Crime
     Victims Assistance Fund fee. For the reasons that follow, we reverse and remand for a new
     trial.

¶2                                         I. BACKGROUND
¶3        On February 11, 2015, defendant was indicted on one count of unlawful possession of a
     weapon by a felon (720 ILCS 5/24-1.1(a) (West 2014)), one count of unlawful possession of
     firearm ammunition by a felon (id.), one count of defacing identification marks on a firearm
     (id. § 24-5(b)), one count of unlawful use of a weapon (id. § 24-1(a)(7)(ii)), and one count of
     obstructing justice (id. § 31-4(a)).1
¶4        A jury trial began on November 2, 2015. After the jury had been selected but before the
     trial began, the State brought to the trial court’s attention that a per se conflict of interest
     existed between defense counsel and defendant. The following colloquy took place:
                  “[THE STATE]: Judge, we did have an issue we needed to spread of record. I did
             get a text from [defense counsel] this morning. Judge, I did get Lorena Montes served
             with a subpoena Monday afternoon after the jury was picked. Her name was on the
             Statement of Facts. She is alleged and we believe the evidence will show that she was
             in the vehicle with this defendant at the time our officers made an observation of the
             butt of a shotgun in the car. We did indicate to [defense counsel] that she may be a
             witness.
                  [Defense counsel] does represent Lorena Montes. There is one pending case that is
             set for trial in December. It is a Class A misdemeanor. It does involve this defendant as
             well as, obviously, this case does. I do intend to call Lorena Montes this morning or this
             afternoon to ask her numerous material facts regarding this particular case.
                  Having spoken with her I can spread of record that she would, in fact, deny being in
             the car with this defendant as they were on the interstate and deny that this defendant
             ever made any admissions to her. We believe the evidence is otherwise.
                  Judge, we do intend to call her for several different reasons and several facts that
             she will establish that we need to prove our case.
                  Judge, we’re here with a per se conflict that the defense attorney represents Miss
             Montes and [defendant] contemporaneously.
                  THE COURT: [Defense counsel]?
                  [DEFENSE COUNSEL]: Judge, Miss Montes’ case is 15 CM 195. It is set for trial
             before Judge Hughes on December 16th, 2015. I do represent her. I have represented
             her during the pendency of that case. It does derive from the situation that occurred
             here but after the fact, so none of the facts—
                  THE COURT: Of that case are germane to this case.
        1
         The State dismissed the obstructing-justice charge prior to trial.

                                                    -2-
    [DEFENSE COUNSEL]: I would argue they are not because it is an obstructing
charge dealing with allegations that she may have tried to conceal or assisted in the
concealment of [defendant] after the commission of this offense.
    THE COURT: Okay. And have you gone through—obviously, I’m sure you
have—all of the assertions that were made by the State today with [defendant]?
    [DEFENSE COUNSEL]: I have, Your Honor, and I know he’s prepared to answer
the Court as to some of these as well, so it’s not just my word. But we did cover the
conflict, the ramifications of that, what we expect to happen if Lorena is called as a
witness and how it affects him and his rights.
    THE COURT: All right. Permission to speak to your client?
    [DEFENSE COUNSEL]: Yes, Judge.
    THE COURT: [Defendant], this is very serious, so I want to make sure that you are
completely following what’s happening here.
    The State informed me that there is a per se conflict of interest, which means in this
case, that your attorney contemporaneously, that means at the same time as, represents
you and a State’s witness. Do you understand that?
    THE DEFENDANT: Yes, sir.
    THE COURT: And because of that representation, there are issues that may or may
not come up during the course of his representation of you. Do you understand that?
    THE DEFENDANT: Yes, sir.
    THE COURT: And did you discuss those with [defense counsel]?
    THE DEFENDANT: Yes, Your Honor.
    THE COURT: You’re entitled to have conflict-free counsel, which means in this
case that if you desire, I will continue the case on your motion. I will get you a new
attorney. You are not going to be required to continue with [defense counsel] if you
think that the nature of his representation or anything about the conflict of interest
would affect you adversely, which means in a bad way. Do you understand that?
    THE DEFENDANT: Yes, sir.
    THE COURT: Did you discuss all those scenarios with [defense counsel]?
    THE DEFENDANT: Yes.
    THE COURT: Do you have any questions about what it involves right now?
    THE DEFENDANT: No.
    THE COURT: So do you have any decision which you would wish me to do in this
case?
    THE DEFENDANT: Just proceed with the same attorney.
    THE COURT: So knowing everything that you know about this conflict, you desire
to waive any objection you have to proceeding and to allow [defense counsel] to
continue to represent you?
    THE DEFENDANT: Yes.
    THE COURT: Okay. And today, sir, I just want to ask you, have you taken any
medication? Are you under the influence of any kind of drug or alcohol?
    THE DEFENDANT: No, sir.


                                    -3-
                 THE COURT: And you appear to be following everything I say, but have you had
             any difficulty understanding any of the concepts or anything that we’ve discussed
             today?
                 THE DEFENDANT: No, sir.
                 THE COURT: Very good.
                 [THE STATE]: I will spread of record as well that in case it becomes an issue later
             that the People of the State of Illinois are not offering Lorena Montes any consideration
             for her testimony. She has a pending case which from this point on she’ll either have to
             straight plea or go to trial. We will not be making any offers, so there will not be a later
             claim by this defendant that after the fact we gave her a deal because of her testimony
             in this case. There is no offer to her, and there will not be an offer to her, and we
             believe, certainly, this conflict has been waived sufficiently.
                 THE COURT: I find that based on everything that I heard so far, my discussion
             with [defendant], I find that I’ve been informed of the nature and circumstances
             involved in this per se conflict. I am satisfied that the issues have been fully vetted,
             disclosed to me and to [defendant].
                 I do find that this is a waivable conflict and based on my discussion with
             [defendant] here today, I find that his waiver is knowing and voluntary. I will allow you
             to waive the conflict, [defendant], and you may proceed to trial with [defense counsel]
             since that is your desire. Okay?
                 THE DEFENDANT: Yes, sir.
                 THE COURT: Okay. You can have a seat with your lawyer.”
¶5       The evidence at trial generally established the following. At approximately 12:30 in the
     morning on April 20, 2014, Illinois State Police Sergeant Ken Benson was in his squad car
     when he observed a vehicle speeding on I-94 in Lake County. He activated his emergency
     lights and stopped the vehicle. He approached the driver’s side of the vehicle and observed a
     male driver and a female passenger. The lighting was sufficient to allow Benson to see the
     driver’s face and the passenger’s face. While speaking with the driver, Benson saw what
     appeared to be a sawed-off shotgun lying in the backseat. It was located behind a baby seat. He
     could see that the entire handle of the gun was covered in black tape. When Benson asked the
     driver what was in the backseat, the driver “said something on the affect [sic] of there’s nothing
     in the back seat, kind of just playing it off.” Benson asked the driver to exit the vehicle. As
     Benson went to grab the door handle, the vehicle sped off. Benson ran to his squad car to
     advise dispatch what had happened. Using his onboard computer, Benson learned that the
     vehicle was registered to Lorena Montes. Benson could see Montes’s driver’s license
     photograph and recognized her to be the female passenger. Benson identified People’s exhibit
     No. 4 as Montes’s driver’s license photograph and identifying information. While Benson
     remained on the scene, other officers were dispatched to Montes’s address, where they were
     told that defendant was Montes’s boyfriend. Using his onboard computer, Benson located
     defendant’s driver’s license photograph. Benson testified that when he saw the photograph,
     although defendant’s hair was “slightly different,” he believed defendant to be the driver of the
     vehicle. Benson identified People’s exhibit No. 5 as defendant’s driver’s license photograph
     and identifying information. Officers were dispatched to defendant’s address, where the



                                                  -4-
       vehicle was located. Benson went to defendant’s address and saw the vehicle. The gun was no
       longer in the backseat.
¶6          Benson testified further that, on April 23, 2014, he learned that a sawed-off shotgun had
       been found on an exit ramp about one-quarter mile away from the location of the traffic stop.
       He was shown People’s exhibit No. 3, a picture of the gun, which had black duct tape on the
       handle. Benson identified it as the gun that he had seen in the backseat of the vehicle. Benson
       identified People’s exhibit No. 2 as a video recording of the traffic stop that was taken from his
       squad car. The video was played for the jury.
¶7          Illinois State Police Trooper Roman Nebelski testified that he was on patrol on April 23,
       2014, and was flagged down by a construction worker while exiting I-94 onto Belvidere Road.
       The worker gave him a sawed-off shotgun with black tape wrapped around the handle. There
       was a single unfired shotgun shell in the gun. Nebelski identified People’s exhibit No. 3 as a
       photograph of the gun and People’s exhibit No. 1 as the actual gun.
¶8          Mark Stammacher testified that, in April 2014, he was working on an exit ramp off I-94
       when he found a sawed-off shotgun in the grass on the right side of the ramp, about 10 to 15
       feet off the road. He flagged down a state trooper and gave him the gun. He identified People’s
       exhibit No. 3 as a photograph of the gun.
¶9          Fred Tomasek, a forensic scientist with the Illinois State Police crime lab, testified that he
       examined People’s exhibit No. 1. The gun was operational. The manufacturer’s serial number
       had been partially scratched off.
¶ 10        Montes testified that she was 23 years old. She, along with her three-year-old son, lived
       with her parents and sisters in Lake Villa. Defendant was her son’s father. In April 2014, she
       was dating defendant. He lived with his parents in Round Lake, and she sometimes spent the
       night there. She owned a black Saturn vehicle with a child’s car seat in the back. Defendant did
       not have permission to drive her car, and he never used her car. On April 20, 2014, she drove
       her car to a friend’s house in Chicago. Defendant was not with her. She parked her car in the
       driveway. She got drunk and spent the night at her friend’s house. She thought that she
       “blacked out.” When she woke up the next morning, her car was gone. She took the train to
       Round Lake. One of defendant’s sisters picked her up and drove her to her parents’ house. A
       few days later, she called the police and learned that her car had been towed. She believed that
       she called the Round Lake police. She denied that she was in a car that was pulled over by the
       Illinois State Police on April 20, 2014. She testified that she did not own a gun. She was shown
       People’s exhibit No. 1 and testified that the gun was not hers and was never in her car.
¶ 11        On cross-examination, Montes testified that she never received any phone calls from the
       police concerning her car and that no one phoned her to tell her that the car was in their
       possession.
¶ 12        The parties stipulated that no fingerprints suitable for comparison were found on the gun
       and that defendant had been previously convicted of a felony.
¶ 13        The State rested. Defendant moved for a directed verdict and the motion was denied.
       Defendant presented no evidence.
¶ 14        The jury found defendant not guilty of possession of firearm ammunition by a felon and
       guilty of the remaining charges. Defendant’s motion for a new trial was denied.
¶ 15        Following a sentencing hearing, the trial court sentenced defendant to 11 years in prison.
       Defendant filed a motion for reconsideration of his sentence, which the trial court denied.

                                                    -5-
       Defendant timely appealed.

¶ 16                                           II. ANALYSIS
¶ 17       Defendant argues that he was denied his right to conflict-free counsel, because the trial
       court did not obtain a knowing waiver of that right. We agree.
¶ 18       A criminal defendant has the right to effective assistance of counsel, which includes the
       right to conflict-free representation from his attorney. People v. Washington, 101 Ill. 2d 104,
       109-10 (1984); People v. Stoval, 40 Ill. 2d 109, 111 (1968). The supreme court has identified
       three situations in which 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 with the prosecution of defendant.” People v. Fields, 2012 IL 112438, ¶ 18. Here,
       there is no dispute that, because defense counsel represented a State witness, a per se conflict
       of interest existed. “Unless a defendant waives his right to conflict-free representation, a per se
       conflict is automatic grounds for reversal.” Id. The question here is whether the conflict was
       validly waived by defendant. To be valid, a defendant’s waiver of a conflict must be knowing.
       People v. Olinger, 112 Ill. 2d 324, 339 (1986). “A defendant will not be deemed to have
       waived a conflict unless he is admonished as to the existence of the conflict and its
       significance.” (Emphasis added.) Id. We indulge every reasonable presumption against
       defendant’s waiver. See People v. Lawson, 163 Ill. 2d 187, 208-09 (1994).
¶ 19       We find that defendant’s waiver was not knowing. To be sure, the existence of the conflict
       was brought to the trial court’s attention and discussed with defendant. The State told the court
       that it intended to call Montes, what it believed the evidence would show concerning Montes’s
       involvement in defendant’s offense, and the substance of Montes’s anticipated testimony. The
       court asked defense counsel whether he went over the State’s assertions concerning Montes
       with defendant. Defense counsel told the court that he did cover with defendant “the conflict,
       the ramifications of that, what we expect to happen if [Montes] is called as a witness and how it
       affects [defendant] and his rights.” The court told defendant that “there are issues that may or
       may not come up.” The court asked defendant whether he had “discuss[ed] all those scenarios
       with [defense counsel],” and defendant indicated that he had.
¶ 20       Although the record makes clear that defendant was aware of the existence of the conflict,
       the record does not establish that defendant was advised of the significance of the conflict. The
       record does not reveal the specifics of the discussions between counsel and defendant. Counsel
       never explained to the court what information he had provided to defendant concerning the
       ramifications of the conflict. Nor did defendant indicate that he knew the possible impact that
       the conflict could have on counsel’s ability to zealously represent him. The court told
       defendant that the conflict was “serious” and that there were “issues that may or may not come
       up,” but it never explained to defendant, in a way he might understand, how the conflict could
       impact counsel’s representation of him. See People v. Poole, 2015 IL App (4th) 130847, ¶ 36
       (finding waiver invalid, in part because “the record does not reveal whether defendant was
       advised of the conflict in a way he might understand how it could affect his representation”).
       For instance, the court never advised defendant that, due to counsel’s representation of
       Montes, counsel could be reluctant to cross-examine Montes in a way that would be
       adversarial to her case but beneficial to defendant’s. In sum, because the record does not show

                                                    -6-
       that defendant was advised of the significance of the conflict, we find that defendant’s waiver
       of conflict-free counsel was not knowing.
¶ 21       Based on the foregoing, we reverse defendant’s conviction and remand for a new trial. We
       find no double-jeopardy bar to retrial where the evidence presented against defendant was such
       that a rational trier of fact could have found him guilty beyond a reasonable doubt. People v.
       Fillyaw, 409 Ill. App. 3d 302, 320 (2011). However, we note that our determination regarding
       the evidence is not binding on retrial and does not express our opinion as to defendant’s
       ultimate guilt or innocence. People v. Jackson, 2012 IL App (1st) 102035, ¶ 21. Given this
       holding, we need not consider defendant’s alternative arguments.

¶ 22                                      III. CONCLUSION
¶ 23      For the reasons stated, we reverse and remand for a new trial.

¶ 24      Reversed and remanded.




                                                  -7-
