                                                                         Digitally signed by
                                                                         Reporter of
                                                                         Decisions
                                                                         Reason: I attest to
                       Illinois Official Reports                         the accuracy and
                                                                         integrity of this
                                                                         document
                              Appellate Court                            Date: 2019.02.19
                                                                         09:16:25 -06'00'



                  People v. Garcia, 2018 IL App (5th) 150363



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



District & No.    Fifth District
                  Docket No. 5-15-0363



Filed             October 3, 2018



Decision Under    Appeal from the Circuit Court of Monroe County, No. 14-CF-118; the
Review            Hon. Dennis B. Doyle, Judge, presiding.



Judgment          Affirmed in part and vacated in part; cause remanded with directions.


Counsel on        James E. Chadd, Ellen J. Curry, and Jennifer M. Lassy, of State
Appeal            Appellate Defender’s Office, of Mt. Vernon, for appellant.

                  Christopher Hitzemann, State’s Attorney, of Waterloo (Patrick
                  Delfino, David J. Robinson, and Erin Wilson Laegeler, of State’s
                  Attorneys Appellate Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE OVERSTREET delivered the judgment of the court, with
                  opinion.
                  Justices Chapman and Cates concurred in the judgment and opinion.
                                              OPINION

¶1       A jury convicted the defendant, Joseph Garcia, of attempted burglary, and the circuit court
     sentenced him to 10 years of imprisonment and 2 years of mandatory supervised release. This
     is the defendant’s direct appeal from his conviction and sentence. During his jury trial, the
     State presented two videotaped confessions that the parties agree contained inadmissible and
     prejudicial evidence of other crimes involving the defendant. Prior to trial, the circuit court
     granted the defendant’s motion in limine, which barred the State from presenting other crimes
     evidence during the trial. The defendant’s counsel, however, did not object to the State
     admitting unedited copies of the videotaped confessions, thus exposing the jury to the
     prejudicial other crimes evidence.
¶2       The defendant’s attorney raised this error in a posttrial motion, characterizing the error as
     plain error instead of ineffective assistance of counsel. The circuit court denied the posttrial
     motion. On appeal, the defendant argues that his trial counsel had either a per se or an actual
     conflict of interest during the posttrial hearing because counsel had to argue that his own error
     resulted in an unfair trial. For the following reasons, we agree with the defendant’s argument
     that defense counsel had an actual conflict of interest when he argued the posttrial motion.
     Therefore, we vacate the circuit court’s denial of the defendant’s posttrial motion and remand
     for the appointment of conflict-free posttrial counsel and for further posttrial proceedings.

¶3                                          I. BACKGROUND
¶4        The defendant was charged with attempted residential burglary involving a home owned
     by Mike and Carla Becherer located in Columbia, Illinois. The charges stem from events that
     occurred in the afternoon on Wednesday, December 17, 2014, at the Becherers’ residence. The
     Becherers’ daughter, Veronica, was home alone when someone began knocking on the front
     door and ringing the doorbell. Veronica did not answer. She watched the person at the front
     door walk across the street and then back to her house, where he started knocking on the door
     again. The person then walked to the back of her house and onto the back deck.
¶5        Veronica called her mother, Carla, and told her about the person at the house and about a
     car in the driveway with Missouri license plates. Carla told Veronica to hide, and she called
     9-1-1. Veronica hid in a closet and heard loud banging at the back door.
¶6        Officers Josh Bayer and Ryan Doetsch with the Columbia Police Department immediately
     responded to the Becherers’ residence. Upon arrival, Bayer saw a gray Mazda passenger car
     with tinted windows parked in the driveway. Because the windows were tinted, he did not
     notice that there was a person in the driver’s seat of the car. At the back of the house, the
     officers found the defendant and another individual that they identified as Ryan Ewald,
     standing on the top of the back deck’s stairs. They both wore gloves and cotton stocking caps.
     The officers arrested them. The person in the gray Mazda drove away, but he was arrested a
     short time later. The officers learned that the driver was Ryan Ewald’s brother, Derek Ewald.
     As Bayer secured the defendant into the back of a police car, the defendant told him that he was
     at the house with “Cisco” because of an ad posted on Craigslist. Bayer determined that “Cisco”
     was Ryan Ewald.
¶7        After the arrest, the officers discovered a black knife on the back deck. The tip of the knife
     was broken off. They also discovered pry marks around the sliding glass door and a broken


                                                  -2-
       chuck of landscaping brick that was on a bench on the deck. Carla came home while the
       officers were still at the house. She told the officers that the broken landscaping brick sitting on
       a bench did not belong there and that it was not there when she left for work that morning. She
       also told the officers that the knife found on the back deck did not belong to them and that she
       had never seen the knife before. She told the officers that scratches by the back door’s handle
       were not there before. She noticed that the back door no longer opened properly. However,
       there was no evidence that the defendant or Ryan Ewald ever entered the house.
¶8         Prior to the defendant’s jury trial, the defendant’s attorney filed a motion in limine,
       requesting the court to, among other things, bar the State from presenting evidence of other
       crimes involving the defendant in its case-in-chief. At the hearing on the motion, the
       prosecutor stated that he did not object to the motion, except in the event that the defendant
       testified. If he testified, the State “would use his prior criminal convictions to impeach him as a
       witness.” In response, the defendant’s counsel emphasized, “I just don’t want it brought up in
       their case in chief.” The court granted the motion, barring the State from presenting evidence
       of other crimes in its case-in-chief. The defendant’s motion also requested the court to bar the
       State from mentioning any burglaries in Columbia, Illinois, in which the defendant had not
       been charged. At the pretrial hearing, the prosecutor agreed with the motion, stating, “I don’t
       think that would be appropriate, and we don’t intend to bring in evidence.” The court granted
       the motion and barred the State from presenting evidence of other burglaries.
¶9         At the defendant’s trial, the State presented two videotaped interviews of the defendant that
       were played for the jury in their entirety without any objection from the defendant’s attorney.
       These videotaped interviews showed questions the officers asked of the defendant concerning
       the events that occurred at the Becherer residence. However, the videotaped interviews also
       included evidence of other crimes involving the defendant and other burglaries in which the
       defendant had not been charged.
¶ 10       During the first videotaped interview, the defendant stated that he “did not break into
       nothing and did not touch nothing.” Shortly into the interview, the defendant volunteered to the
       officers that he was just released “out of the penitentiary about a month ago.” One of the
       officers asked, “for what?” The defendant responded, “for drugs.” The officer asked, “what
       kind of drugs?” The defendant stated methamphetamines. The defendant added that the prison
       was in Booneville, Missouri, and that he was released on November 4 or 5.
¶ 11       The videotape showed the defendant telling the officers that when he was arrested at the
       Becherers’ residence, he was with a person named “Cisco” and Cisco’s brother. He stated that
       he knew Cisco because he had been “locked up” with him. He also stated that he knew Cisco
       from getting high and from the “club scene.” He stated that the vehicle they used that day
       belonged to Cisco and his girlfriend. He first told the officers that they were at the Becherer
       residence because Cisco had told him he was going to buy a laptop off of Craigslist. The
       defendant stated that he walked around to the back of the house with Cisco to help him knock
       on the back door. The officers, however, told the defendant that they had already talked with
       Ryan and Derek Ewald, that they were aware of items in the car that were stolen from houses
       on previous days, and that this was his only “shot” to tell the truth.
¶ 12       The defendant later admitted that he was not at the Becherer home for a Craigslist purchase
       but because Cisco was “casing” houses, i.e., looking for houses to break into in order to steal
       valuables. He insisted, however, that he was not going into the houses, only Cisco. He stated
       that, at the Becherers’ residence, he was at the back of the house only to help Cisco in case

                                                    -3-
       someone “ran up on him while he did his thing” and to help him if someone were to “jump on
       him.” He stated that Cisco grabbed the landscaping brick, and when Cisco was going to hit a
       window with it, he told Cisco, “no, don’t do that, man.” The defendant told the officers that the
       knife found on the Becherers’ deck was Cisco’s knife. He stated that Cisco threw the knife
       when the officers arrived, adding that he (the defendant) was a “dangerous felon” and “can’t
       have no knives.”
¶ 13        During the videotaped interrogation, the officers asked the defendant to tell them what
       other houses in other subdivisions had been burglarized. They said that they needed to know
       “where all that stuff came from” in the vehicle. The defendant insisted that he did not know
       anything about other burglaries in the area or what all was in Cisco’s vehicle. He stated that
       Cisco had gone up to two other houses and knocked on the doors but he stayed in the vehicle.
       The defendant admitted that if someone answered the door, Cisco would pretend to ask for
       directions and that if no one answered he would “go in there.” He insisted that he did not get
       out of the car at the other houses and that he went to the back of the Becherers’ house only
       because Cisco was afraid that there was a dog. He stated that he did not do anything because he
       was “on probation.”
¶ 14        The videotape showed the defendant telling the officers that he knew Cisco “through
       drugs” and that the two “go to the same dope dealer.” The officers told the defendant that he
       was admitting to participating in the burglary of the Becherers’ residence because he was
       found at the scene. The officers also accused him of “everything else” and “other burglaries,”
       telling the defendant that he had “been to prison before” and that he was “with these guys.” The
       defendant insisted that he had nothing to do with any of the Ewalds’ other activities, adding
       that the officers did not believe him because he was “a criminal.”
¶ 15        The videotape showed the officers continuing to question the defendant about other
       burglaries that they suspected the Ewalds had committed, and the defendant told the officers to
       look at his cell phone to see what he was doing, adding that there might be some “drug
       activity” on his phone. The officers told the defendant that they were interested in where he
       was on certain dates of other burglaries. The defendant responded that he did not know
       anything about them and had just got out of prison a month ago. The officers stated that the
       burglaries started “a couple weeks ago.” At one point, the defendant was having trouble
       remembering where he had been at various times and told the officers that he did not want his
       children’s mother to know that he had been with another woman and was getting high.
¶ 16        The defendant told the officers that he was not a burglar, that the drug case that he had the
       year before was the “only non-violent crime” he had on his record, and that the reason he “had
       violent crimes in the past” was because he “gangbanged.” One of the interrogating officers told
       the defendant, “If you weren’t with [Cisco] these other days, then you’ve gotta have proof as
       far as where you were at. Otherwise, in our eyes, you were with him.” The officers continued
       to state that they believed the defendant was involved with “all the other burglaries” and
       guessed that Cisco was probably going to give him “some dope” or heroin in exchange for his
       involvement. The defendant admitted that he used heroin over the weekend and that Cisco
       mentioned doing another burglary when they spoke at a dope house the day before the
       Becherer burglary attempt. He told the officers that he saw Cisco frequently at the dope house
       and that he had used meth the night before his arrest.
¶ 17        At various points during the videotaped interview, the defendant revealed that he served a
       12-year sentence, from 1998 to 2010, for shooting someone; that when he got out of prison, he

                                                   -4-
       did well until he started getting high and selling drugs; and that he then did another 1-year
       prison sentence. In addition, he revealed that he was not supposed to be in Columbia, Illinois,
       because he was on probation, that he thought doing time in Missouri was easy compared to
       Illinois, and that he did not know how to use a computer because he had “been locked up for so
       long.” He admitted to the officers that he had a drug problem, that it might not be easy for him
       to find a job because he had been in prison, that he was going to visit his “P.O.” (probation
       officer) on the day of his arrest, that the Ewalds’ car contained stolen property from other
       burglaries in Columbia, Illinois, and that he had been in jail for most of his daughter’s life.
¶ 18        After the first interview with the defendant, the officers interviewed Ryan and Derek
       Ewald and then conducted a second videotaped interview of the defendant. Again, the State
       played the second videotaped interview to the jury in its entirety without any objection from
       the defendant’s attorney. The second videotaped interview included additional questions asked
       by the officers pertaining to the Becherer burglary attempt. In the videotaped interview, the
       officers convinced the defendant to ride around and show them where he and the Ewalds had
       been that afternoon. The officers told the defendant that he had spent the majority of his life in
       prison and that he should help himself by helping the officers. Similar to the first videotaped
       interview, the second interview included references to the defendant frequenting a “dope
       house,” his use of drugs, and references to his “P.O.” He also pulled up his jacket sleeve to
       show the officers “track marks” from recent drug use and referenced warrants for his arrest,
       telling the officers that he had two outstanding warrants in St. Clair County.
¶ 19        The defendant’s attorney did not offer any objections to the contents of either of the
       videotaped interviews. After the State concluded its case-in-chief, the defense rested without
       presenting any evidence. The jury subsequently found the defendant guilty of attempted
       residential burglary of the Becherers’ residence.
¶ 20        On July 23, 2015, defense counsel filed a motion for a new trial. In the motion, defense
       counsel wrote that “certain evidence[ ] was introduced that was prejudicial to Defendant such
       that Defendant is entitled to a new trial.” Counsel wrote that “the introduction of the video of
       Defendant’s interrogation by police was prejudicial in that it contained numerous references to
       his prior criminal history.” Citing the standard for the plain error rule, the defendant’s attorney
       wrote that “the evidence was so closely balanced that the error alone threatened to tip the scales
       of justice against defendant; or the error was so fundamental and of such magnitude that it
       affected the fairness of the trial and challenged the integrity of the judicial process, regardless
       of the closeness of the evidence.”
¶ 21        At the hearing on the posttrial motion, defense counsel and the trial court had conflicting
       recollections concerning the events leading up to admission of the videotaped interviews.
       Defense counsel explained that he did not object to the interrogation videos because he “was
       certain that it was probably redacted.” The court, however, stated that its recollection was that
       defense counsel “understood exactly what the content of the video was and did not object to it
       being admitted and agreed that it was not in violation of the Motion in Limine.” The court told
       defense counsel that if there was “any inkling whatsoever that [defense counsel] didn’t
       understand the content of the video, [it] would never have allowed it to be played.” The court
       asked counsel whether he was going to “put on some evidence of that?” The defendant’s
       attorney responded that the video was “so harmful and prejudicial” and that he “should have
       objected” but did not, explaining, “I wasn’t sure what the contents of—I had some idea. I
       reviewed the video.” The following exchange took place:

                                                    -5-
                   “THE COURT: That’s not my recollection of the facts. I thought it was represented
               to me that you had reviewed the video, that you knew the contents, and that you had no
               objection to it being played as part of your trial strategy, understanding that there may
               be prejudicial effects to your client, that they would be overweighed—be outweighed
               by the—your theory of the defense of the case.
                   [DEFENSE COUNSEL]: Well, that,—I mean, that’s not my recollection. I mean,
               my understanding was that they were gonna play certain parts. I didn’t know they were
               gonna play the whole thing straight through.
                                                    ***
                   THE COURT: My recollection was that you said that if they hadn’t—if they didn’t
               play the whole thing, that you would have the right to play any portions that were not
               played, and that it was agreed that the entire thing be played.”
¶ 22       The court stated: “So if you have some factual issues that you want me to take into
       consideration on your motion, you’ll have to present evidence on that. I’m not going to accept
       your unsworn argument as to the facts that are not before the Court.” The court then asked the
       defense attorney how he wanted to proceed. Defense counsel responded that regardless of the
       reason for the videos’ admission into evidence, “it’s still plain error given that—the nature of
       the prejudicial—I mean, it talks about previous crimes and previous convictions.” The court
       added, “At length and other crimes being committed and all kinds of things like that” and
       “things that are obviously prejudicial to your client.” The court stated that the prejudicial
       things “were not objected to” and that it was represented to the court “that that was part of the
       theory of the Defense’s case.”
¶ 23       The prosecutor stated that defense counsel had the video for 200 days prior to trial and that
       “[a]ny argument made now is basically an appellate argument, and I think the argument being
       made is incompetence of counsel.”
¶ 24       The defendant’s attorney declined to put on any evidence of the circumstances leading up
       to the admission of the videotaped interviews, emphasizing that he was not “casting blame on
       anyone.” The circuit court denied the posttrial motion and sentenced the defendant to a term of
       10 years in the Department of Corrections. The defendant now appeals his conviction and
       sentence.

¶ 25                                           II. ANALYSIS
¶ 26       The only issue the defendant has raised on appeal concerns an alleged conflict of interest of
       his attorney at the posttrial stage of the proceedings below. The defendant notes that the
       substance of the posttrial motion filed by his attorney was that his attorney should have
       objected to the admission of portions of the videotaped interviews and that his failure to do so
       resulted in the admission of inadmissible evidence that was harmful and prejudicial. On
       appeal, the defendant argues that, under these circumstances, at the hearing on the posttrial
       motion, defense counsel had a per se conflict of interest because he had to argue his own
       ineffectiveness. Alternatively, the defendant argues that his counsel had an actual conflict of
       interest. On appeal, we review de novo whether an attorney was laboring under a conflict of
       interest. People v. Miller, 199 Ill. 2d 541, 544 (2002).




                                                   -6-
¶ 27                                          A. Per Se Conflict
¶ 28        A criminal defendant’s constitutional right to effective assistance of counsel encompasses
       the right to conflict-free counsel. People v. Hernandez, 231 Ill. 2d 134, 142 (2008). An
       attorney’s conflict of interest may be either per se or actual. See id. In the context of criminal
       proceedings, the supreme court has identified three situations causing a per se conflict:
       (i) defense counsel has a prior or contemporaneous relationship with the victim, prosecution,
       or entity assisting the prosecution; (ii) defense counsel contemporaneously represents a
       prosecution witness; and (iii) defense counsel was a former prosecutor who had been
       personally involved in the defendant’s prosecution. People v. Taylor, 237 Ill. 2d 356, 374
       (2010).
¶ 29        In the present case, the defendant argues that his attorney was conflicted at the posttrial
       stage of the proceedings below because the attorney admitted that his failure to object to the
       admission of the videotaped interviews resulted in the admission of inadmissible and
       prejudicial evidence. The defendant argues that because his attorney had to argue his own
       ineffectiveness in order for the posttrial motion to prevail, his attorney labored under a per se
       conflict while arguing the posttrial motion. The defendant agrees that this alleged conflict does
       not fall within any of the three categories of per se conflict defined by the supreme court noted
       above. Nonetheless, the defendant asks us to define a fourth category of per se conflict, i.e.,
       when defense counsel has to assert his own ineffectiveness on behalf of a criminal defendant.
¶ 30        In People v. Brown, 2017 IL App (3d) 140921, ¶ 31, the court noted that the appellate
       courts are split concerning whether or not posttrial counsel has a per se conflict when he has to
       argue his own ineffectiveness at trial. We are persuaded by the majority of cases that have
       declined to expand upon the supreme court’s definition of a per se conflict to include situations
       in which defense has to argue his or her own ineffectiveness in posttrial proceedings. We do
       not believe there is a basis for finding a per se conflict under such circumstances, particularly
       when the defendant does not request a new attorney. See People v. Davis, 151 Ill. App. 3d 435,
       442-43 (1986); People v. Perkins, 408 Ill. App. 3d 752, 762 (2011) (“[a] per se conflict of
       interest does not exist merely because a defense attorney’s competence is questioned by his
       client during posttrial proceedings; rather, the underlying allegations of incompetence
       determine whether an actual conflict of interest exists” (internal quotation marks omitted)).
¶ 31        In support of his argument that a per se conflict existed, the defendant cites People v.
       Lawton, 212 Ill. 2d 285, 296 (2004), where the supreme court found defense counsel’s failure
       to assert his own ineffectiveness in a posttrial motion did not forfeit the issue on appeal, noting
       that an attorney forced to argue his own ineffectiveness would face “an inherent conflict of
       interest.” We disagree with the defendant’s argument. We do not believe that the supreme
       court established a new category of per se conflicts by making this statement in Lawton.
       Instead, the court’s comment related to whether an issue was forfeited on appeal because of the
       attorney’s failure to raise the issue in a posttrial motion. See People v. Sullivan, 2014 IL App
       (3d) 120312, ¶ 46 (“[T]he Lawton court did not hold that a per se conflict would occur in such
       a situation: its discussion was limited to [forfeiture].”).
¶ 32        Because the facts of the present case do not present us with a per se conflict, we will limit
       our analysis to deciding whether the defendant’s counsel had an actual conflict during the
       posttrial stage of the proceedings.



                                                    -7-
¶ 33                                          B. Actual Conflict
¶ 34        The supreme court has stated that when a defendant cannot establish a per se conflict of
       interest, he 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. To show an actual conflict of interest, a defendant must point to
       “ ‘some specific defect in his counsel’s strategy, tactics, or decision making attributable to [a]
       conflict.’ ” People v. Morales, 209 Ill. 2d 340, 348-49 (2004) (quoting People v. Spreitzer, 123
       Ill. 2d 1, 18 (1988)). In other words, a defendant “need not prove prejudice in that the conflict
       contributed to the conviction, but it is necessary to establish that an actual conflict of interest
       adversely affected the lawyer’s performance.” People v. Austin M., 2012 IL 111194, ¶ 82.
¶ 35        A recent example of an actual conflict at the posttrial stage of a criminal proceeding is
       found in Brown, 2017 IL App (3d) 140921. In that case, a jury convicted the defendant of
       domestic battery. Id. ¶ 1. At the posttrial stage, the defendant filed a pro se letter in which he
       stated that he wanted to appeal the jury’s verdict because, among other things, one of his
       witnesses was not called to testify. Id. ¶ 12. Prior to sentencing, the defendant’s attorney made
       an oral motion to set aside the jury’s verdict and adopted that part of the defendant’s letter with
       respect to failure to call a witness as part of the basis for the motion. Id. ¶ 13.
¶ 36        The court asked defense counsel whether she had any witnesses she wanted to present with
       respect to the motion, and counsel told the court that she would proceed through proffer
       instead. Id. ¶ 14. Counsel then told the court that defendant had told her about two occurrence
       witnesses, that she had thought that the two individuals were actually only one person, and that
       she could not locate that person because the defendant did not have an address. Id. Defense
       counsel then explained that, at the trial, she learned that the defendant had actually described
       two occurrence witnesses, not one, but by then the trial had already begun and it was too late to
       add this additional witness. Defense counsel told the court that the defendant believed that if
       either witness had been called, they would have been able to testify with respect to his
       innocence. Defense counsel concluded, “ ‘So we’d ask the Court to reconsider the verdict or to
       set aside the verdict of the jurors on the basis that this was nothing short of just a
       miscommunication and that it’s a miscommunication between him and me that led to him not
       being able to call all the people that could be put on, the best case to determine whether he in
       fact was guilty or innocent.’ ” Id.
¶ 37        The circuit court denied the motion, stating that a miscommunication between the attorney
       and the defendant was not a proper basis for setting aside the jury’s verdict. Id. ¶ 15. The court
       also concluded that, based on the defense counsel’s summary of events, the defendant failed to
       provide his counsel with enough information to contact the witnesses. Id.
¶ 38        On appeal, the defendant argued, among other issues, that his attorney proceeded under an
       actual conflict of interest at the posttrial stage of the proceedings when she had to argue her
       own ineffectiveness. Id. ¶ 28. The Brown court agreed, concluding that the defendant’s counsel
       had an actual conflict of interest because the motion to set aside the verdict “was premised on a
       single issue: her own ineffectiveness in calling defendant’s witnesses.” Id. ¶ 32. The court
       noted that, in order to prevail, the defendant’s attorney was obligated to show that her
       performance was constitutionally deficient and that, but for her deficient performance, a
       reasonable likelihood existed that the result of the trial could have been different. Id. The
       attorney, however, failed to make any effort to show either of these prongs of ineffective
       assistance of counsel and instead placed the blame on the defendant and a miscommunication,

                                                    -8-
       a characterization that led to the denial of the motion. Id. ¶ 33. The court also noted that the
       defense counsel did not present any evidence concerning the missing witnesses’ potential
       testimony. Id. The court concluded that counsel’s errors at the posttrial stage “were attributable
       to the conflict of interest inherent in arguing her own ineffectiveness.” Id. The court vacated
       the circuit court’s denial of the defendant’s posttrial motion and remanded the matter for the
       appointment of conflict-free counsel, who was authorized to include “whatever issues he or
       she deems meritorious in a new posttrial motion.” Id. ¶ 34.
¶ 39        We find Brown to be persuasive. Here, like the facts in Brown, the defendant’s posttrial
       motion was based on a single issue: counsel’s failure to object to the inadmissible and
       prejudicial portions of the interrogation videotapes, which included evidence of other crimes,
       bad acts, and uncharged burglaries. In order for the posttrial motion to prevail, defense counsel
       was obligated to show that his performance was deficient and that the deficient performance so
       prejudiced the defendant that he was denied a fair trial. See Strickland v. Washington, 466 U.S.
       668, 687 (1984) (two-part test adopted by the supreme court in People v. Albanese, 104 Ill. 2d
       504, 525-26 (1984)). The defendant’s attorney, however, did not make any effort to show
       either prong of the Strickland standard, and the record establishes that his failure to do so was
       attributable to the conflict of interest inherent in having to argue his own ineffectiveness.
¶ 40        Defense counsel told the court that he had assumed that the videos the State would show to
       the jury were “probably redacted.” The court disagreed with defense counsel’s recollection of
       the events at the trial, and the court’s comments reveal a factual issue concerning the
       circumstances leading up to the admission of the videotaped interviews and whether defense
       counsel’s failure to object was a matter of trial strategy or ineffectiveness. See People v.
       Easley, 192 Ill. 2d 307, 317 (2000) (“[T]he defendant must overcome the strong presumption
       that the challenged action or inaction might have been the product of sound trial strategy.”).
¶ 41        The circuit court stated that it believed that defense counsel “understood exactly what the
       content of the video was” and that counsel’s failure to object to the admission of the video was
       part of his trial strategy, even though the video contained things that were “obviously
       prejudicial” to the defendant. The circuit court asked defense counsel if he was going to put on
       any evidence, and counsel declined to do so. However, in questioning defense counsel about
       the basis for the posttrial motion, the circuit court emphasized that much of the pretrial
       discussion about the admission of the videotapes occurred off the record. The court advised
       defense counsel, “So if you have some factual issues that you want me to take into
       consideration on your motion, you’ll have to present evidence on that.” Instead of presenting
       evidence, counsel argued that the video was prejudicial regardless of how it came in because
       its admission was “plain error.” In arguing plain error, counsel emphasized that he was not
       “casting blame on anyone.” The court, however, rejected this argument and told counsel it was
       not going to accept his “unsworn argument” concerning the admission of the videotape.
       Nonetheless, counsel declined the circuit court’s invitation to present evidence on the issue.
       The circuit court, therefore, denied the posttrial motion.
¶ 42        Like the defense counsel in Brown, we believe that defense counsel’s failure to present
       evidence was attributable to his reluctance to prove his own ineffectiveness. Therefore, based
       on the record before us, we cannot say that the defendant’s counsel vigorously and zealously
       asserted grounds for a new trial based on counsel’s admitted mistake, and we believe counsel’s
       failure to effectively present the issue was caused by an actual conflict of interest.


                                                   -9-
¶ 43       On appeal, the State emphasizes that the defendant’s posttrial motion did not specifically
       advance an argument couched in terms of ineffective assistance of counsel but was based on
       “plain error.” The State, therefore, argues that defense counsel did not have an actual conflict
       of interest in arguing plain error. In support of its argument, the State cites Sullivan, 2014 IL
       App (3d) 120312. Sullivan is distinguishable from this case.
¶ 44       In Sullivan, the court held that defense counsel did not have a per se or actual conflict at a
       posttrial hearing. Id. ¶ 48. In the posttrial motion, the attorney raised an issue with respect to
       the court’s failure to instruct the jury on causation, and counsel admitted that he did not request
       the instruction. Id. ¶ 47. The Sullivan court held that the attorney did not have a conflict in
       arguing the posttrial motion, noting that counsel’s failure to request an instruction would
       normally result in forfeiture of the issue, but the court could still grant relief under Illinois
       Supreme Court Rule 451(c) (eff. July 1, 2006). Sullivan, 2014 IL App (3d) 120312, ¶ 47. The
       court concluded, “We will not transform counsel’s acknowledgement that the error with the
       jury instruction was not raised at trial into an allegation of ineffective assistance of counsel.”
       Id.
¶ 45       In assessing Sullivan’s relevance to the facts of the present case, it is important to keep in
       mind that “the underlying allegations of incompetence determine whether an actual conflict of
       interest exists.” (Internal quotation marks omitted.) Perkins, 408 Ill. App. 3d at 762. The
       underlying allegation in the present case does not involve a defense attorney “[m]erely
       bringing a possibly forfeited error to the trial court’s attention” as was the case in Sullivan.
       Sullivan, 2014 IL App (3d) 120312, ¶ 48. Here, the substance of the underlying allegation is
       counsel’s failure to object to inadmissible and prejudicial other crimes evidence contained in
       the videotapes. Case law establishes that this type of error is not merely an issue of forfeiture
       but can be the foundation for a claim of ineffective assistance of counsel. See People v. Moore,
       2012 IL App (1st) 100857, ¶¶ 53-57 (counsel who failed to object to other crimes evidence on
       interrogation videos shown to the jury was found ineffective); People v. Phillips, 227 Ill. App.
       3d 581, 590 (1992) (testimony elicited by defense counsel of a police officer offering hearsay
       statements that the defendant participated in other crimes was determined to be “devastating”
       to defendant’s case and constituted ineffective assistance of counsel, and a new trial was
       ordered); People v. Fletcher, 335 Ill. App. 3d 447, 453-54 (2002) (Defense counsel who had
       defendant summarize his criminal history was deemed ineffective, and appellate court
       affirmed, stating: “No reasonable defense lawyer would ask his client to tell the jury about an
       extensive history of criminality *** in order to convince the jury that he is innocent of a like
       crime because he denies his guilt instead of pleading guilty.”).
¶ 46       The underlying allegation in the present case is more akin to that in Brown rather than
       Sullivan. See Brown, 2017 IL App (3d) 140921, ¶ 32 (“Defense counsel’s performance may be
       deficient where she fails to call known witnesses whose testimony may exonerate the
       defendant.”). Also, even though defense counsel characterized his error as plain error, in the
       context of the facts of this case, the distinction between plain error and ineffective assistance of
       counsel is immaterial. See People v. Jackson, 2018 IL App (1st) 150487, ¶ 36 (“Although
       defendant has raised this issue under the rubric of ineffective assistance of counsel rather than
       plain error, the distinction is immaterial.”). Finally, Sullivan is further distinguishable from the
       present case in that Sullivan did not involve evidence that defense counsel’s performance in
       arguing the posttrial motion was adversely affected by counsel having to admit his error. Our



                                                    - 10 -
       decision here, as in Brown, is based on evidence that an actual conflict adversely affected
       counsel’s performance in presenting grounds for a new trial at the posttrial hearing.
¶ 47       A criminal defendant has a constitutional right to the undivided loyalty of counsel, free of
       conflicting interests. People v. Woidtke, 313 Ill. App. 3d 399, 409 (2000). When a criminal
       defendant’s attorney is aware that he has committed an error or made an omission during trial
       and that the error or omission arguably resulted in the defendant receiving an unfair trial, the
       attorney has an obligation to bring the error or omission to the trial court’s attention and
       zealously argue that the mistake warrants a new trial. Under such circumstances, the
       defendant’s attorney does not have a per se conflict of interest. If counsel zealously and
       effectively argues for a new trial based on his error or omission, the defendant has not been
       denied his constitutional right to conflict-free counsel. See, e.g., Perkins, 408 Ill. App. 3d at
       762 (finding no conflict of interest where defense counsel zealously asserted a claim of
       ineffective assistance on the defendant’s behalf).
¶ 48       However, in these situations, when counsel fails to adequately assert an ineffective
       assistance of counsel claim on the defendant’s behalf and the record indicates that counsel’s
       failure to do so was influenced by counsel’s reluctance to argue his own ineffectiveness, the
       defendant has been denied his constitutional right to conflict-free counsel. Under such
       circumstances, counsel’s loyalty is divided between the defendant’s interests and counsel’s
       own self-interests. When this division in loyalty adversely affects the lawyer’s performance
       during posttrial proceeding, we are constitutionally obligated to vacate the lower court’s order
       denying posttrial relief and remand for the appointment of conflict-free posttrial counsel and
       for a new posttrial hearing.
¶ 49       Here, the defendant’s attorney had to argue that his own mistake resulted in an unfair trial.
       This is true regardless of whether he couched the issue in terms of plain error or ineffective
       assistance of counsel. The record establishes that defense counsel was reluctant to “cast[ ]
       blame on anyone” and declined the circuit court’s request that he present evidence on the issue,
       which resulted in the circuit court summarily denying the posttrial motion. Under these facts,
       the defendant was denied his constitutional right to conflict-free counsel at the posttrial stage
       of the proceedings. Therefore, we are obligated to vacate the circuit court’s denial of the
       defendant’s posttrial motion and remand this case for the appointment of conflict-free counsel,
       who may file a new posttrial motion and may raise whatever issues he or she deems
       meritorious in a new posttrial motion and hearing. See Brown, 2017 IL App (3d) 140921, ¶ 34.
       In doing so, we emphasize that we express no opinion on whether defense counsel’s failure to
       object to the admission of the videotaped interviews satisfies either prong of the Strickland
       standard.

¶ 50                                     III. CONCLUSION
¶ 51      For the foregoing reasons, we affirm the circuit court’s judgment in part, vacate in part, and
       remand with directions.

¶ 52      Affirmed in part and vacated in part; cause remanded with directions.




                                                  - 11 -
