                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Gacho, 2012 IL App (1st) 091675




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



District & No.             First District, First Division
                           Docket No. 1-09-1675


Filed                      April 16, 2012


Held                       The dismissal of defendant’s postconviction claim of ineffective
(Note: This syllabus       assistance of counsel arising from his counsel’s failure to renew a motion
constitutes no part of     to suppress his confession on the ground that it was coerced was
the opinion of the court   affirmed, but the dismissal of his claims of judicial corruption and
but has been prepared      ineffective assistance of counsel based on his attorney’s representation of
by the Reporter of         a member of the family of a victim was reversed and the cause was
Decisions for the          remanded for further proceedings, since defendant waived the claim of
convenience of the         ineffective assistance based on the failure to renew the motion to suppress
reader.)
                           his confession by failing to raise that argument in his direct appeal, but
                           the claim of judicial corruption based on the trial judge’s acceptance of
                           a bribe to acquit a codefendant, taken as true, deprived defendant of his
                           right to a fair trial and defendant made a substantial showing of an
                           impermissible conflict that, taken as true, was strong evidence of his
                           counsel’s divided loyalty.


Decision Under             Appeal from the Circuit Court of Cook County, No. 83-C-127; the Hon.
Review                     Diane Cannon, Judge, presiding.


Judgment                   Affirmed in part and reversed in part; cause remanded.
Counsel on                  Michael J. Pelletier, Alan D. Goldberg, and John Koltse, all of State
Appeal                      Appellate Defender’s Office, of Chicago, for appellant.

                            Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Marie
                            Q. Czech, and William L. Toffenetti, Assistant State’s Attorneys, of
                            counsel), for the People.


Panel                       PRESIDING JUSTICE HOFFMAN delivered the judgment of the court,
                            with opinion.
                            Justices Karnezis and Rochford concurred in the judgment and opinion.



                                              OPINION

¶1           The defendant, Robert Gacho, appeals from the circuit court’s second-stage dismissal of
        his petition, filed pursuant to the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1991, ch.
        38, ¶ 122-1). On appeal, the defendant argues that his petition should not have been
        dismissed, because it made a substantial showing that (1) he was denied a fair trial due to his
        trial judge’s corruption; (2) he received ineffective assistance of counsel because his attorney
        failed to renew a motion to suppress his confession after witnesses testified that the
        confession had been physically coerced; and (3) he received ineffective assistance of counsel
        because his attorney, who also represented a family member of one of the victims, labored
        under a conflict of interest. For the reasons that follow, we reverse the circuit court’s
        dismissal of the defendant’s corruption claim and conflict-of-interest claim and remand for
        further proceedings on those issues. We affirm the circuit court’s dismissal of the defendant’s
        claim of ineffective assistance of counsel.
¶2           After a jury trial, the defendant was convicted of murder, armed robbery, and aggravated
        kidnaping for his part in the killing of two men, Tullio Infelise and Aldo Fratto. The
        defendant was sentenced to death, and he appealed his conviction and sentence directly to
        the supreme court. See Ill. Const. 1970, art. VI, § 4(b); Ill. S. Ct. R. 603 (eff. July 1, 1971).
        The supreme court affirmed the defendant’s convictions but vacated his death sentence and
        ordered that he be resentenced. People v. Gacho, 122 Ill. 2d 221, 522 N.E.2d 1146 (1988).
        On remand, the defendant was sentenced to imprisonment for life.
¶3           The evidence at the defendant’s trial was detailed in the supreme court’s decision on his
        direct appeal. For that reason, we recount that evidence only briefly here, along with
        additional details to provide context for the defendant’s postconviction claims.
¶4           Prior to the defendant’s trial, one of the prosecuting attorneys pointed out on the record
        that the defendant’s counsel had, in the past, represented a family member of Tullio Infelise.
        The following exchange then occurred between the defendant and the trial judge, Thomas
        Maloney (Maloney):

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              “THE COURT: Mr. Gacho, are you aware of all these circumstances that are being
         referred to and discussed now?
              DEFENDANT GACHO: Yes, sir.
              THE COURT: And you have discussed it in detail with your attorney?
              DEFENDANT GACHO: Yes.
              THE COURT: And you have no objection to whatever has occurred in the past
         regarding [your attorney’s] representation of a family member of one of the victims here?
              DEFENDANT GACHO: No, I don’t.
              THE COURT: And you wish him to continue as your lawyer, is that correct?
              DEFENDANT GACHO: Yes.”
¶5       Also prior to the defendant’s trial, the defendant moved to suppress his written
     confession, on the ground that police had physically and psychologically coerced it. At the
     hearing, the defendant’s wife testified that she went to the police station while they were
     interrogating the defendant. While she was there, she said, police questioned her
     aggressively. She said that she began crying, and, as she cried, police walked the defendant
     by her room so that she and he could see one another. The defendant testified that police
     slapped him and struck him in his injured kidney as they questioned him. He also said that
     police told him they would charge his wife with the crimes, and have his children taken away
     from her, if he did not confess. The defendant recalled seeing his wife crying as police
     questioned her. He said that he signed a confession to stop the physical abuse and because
     he wanted his wife to be set free. The defendant was impeached on cross-examination by the
     facts that he did not raise these allegations to people who interviewed him and gave him
     medical treatment after his confession, and the State adduced testimony from police officers
     saying that they did not abuse the defendant. At the conclusion of the hearing, Maloney
     denied the defendant’s motion. The case proceeded to a trial at which the defendant was tried
     before a jury, while a codefendant, Dino Titone, was tried simultaneously before Maloney.
¶6       At the defendant’s trial, the State’s theory of the case was supported by, among other
     things, the defendant’s confession; information given to police by Infelise before he died; and
     the testimony of the defendant’s girlfriend, Katherine De Wulf. The State’s evidence
     produced the following narrative. On the night of December 11 and morning of December
     12, 1982, the defendant, Joseph Sorrentino and Titone met the victims at the defendant’s
     home to consummate a drug deal. During the encounter, the defendant and Titone forced
     Infelise and Fratto at gunpoint to be bound, then guided them to a waiting car. Sorrentino and
     Titone rode in a car with the bound victims, while the defendant and De Wulf followed them
     in De Wulf’s car. During the drive, the defendant explained to De Wulf that the group
     planned to “waste” the victims. After driving for less than an hour, the cars stopped, and the
     defendant told De Wulf that he and she were waiting to hear gunshots. She then heard several
     gunshots before Titone and Sorrentino came to her car and reported that they had fatally shot
     the two victims. The defendant, Titone, and Sorrentino subsequently divided money and
     drugs they obtained from the victims.
¶7       As he had at the hearing on his motion to suppress, the defendant testified at trial that


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       police coerced his inculpatory statement by physical violence. He also presented testimony
       from his mother-in-law, Edna Haynes. Edna Haynes testified that she and two of her
       children, Timothy and Stephanie Haynes, went to the defendant’s apartment in December
       1982 and saw police there. According to Edna Haynes, one police officer admitted to her that
       police had “scared [the defendant] and slapped him around a little bit so he would talk,”
       while another police officer suggested that police had “sock[ed] him good.” Stephanie and
       Timothy Haynes gave similar testimony.
¶8          Following the trial, the jury returned a guilty verdict against the defendant, and he was
       subsequently sentenced to death. He was resentenced to imprisonment for life after the
       supreme court vacated his sentence on direct appeal.
¶9          In February 1991, the defendant filed his first pro se postconviction petition, which led
       eventually to this appeal. In that 46-page document, the defendant asserted, among other
       things, that Maloney’s corruption had deprived him of a fair trial and that his counsel labored
       under a conflict of interest. Regarding the conflict-of-interest allegation, the defendant stated
       in his petition that his attorney represented “a member of the Infelise family,” Ross Infelise,
       at the same time counsel represented the defendant. The defendant further stated that counsel
       told the defendant that “ ‘he discussed aspects of his representation of [the defendant] with
       the Infelise family’ ” but that counsel did not tell the defendant the precise substance of those
       conversations. The defendant added that, “[a]fter being convicted, [counsel] informed [the
       defendant] that, ‘he was still handling some legal matter for Ross Infelise,’ ” but the
       defendant stated in his affidavit that counsel never apprised him of the nature of the legal
       matter. In his petition, the defendant also asserted that his counsel provided ineffective
       assistance by failing to move to re-open the motion to suppress after seeing a police report
       that the defendant believed undercut evidence that Tullio Infelise inculpated him. For his
       ineffective assistance of counsel claims, the defendant added that his appellate counsel was
       ineffective for failing to raise the claims on direct appeal.
¶ 10        Postconviction counsel was eventually appointed for the defendant, and counsel filed an
       amended postconviction petition in November 1997. The amended petition stated that it
       “replace[d]” all of the claims in the defendant’s initial petition. It reiterated the above three
       claims, except that it did not include a claim that the defendant’s appellate counsel had been
       ineffective.
¶ 11        In December 1998, after many continuances, the circuit court held a hearing on the
       State’s motion to dismiss the defendant’s amended petition. At the beginning of that hearing,
       the defendant’s counsel agreed when Judge Robert Bertucci, who was then presiding over
       the case, stated that it was his “understanding that there [was] an amended post-conviction
       petition that was filed [in November 1997], and that [was] the only petition that the Court
       need[ed] to address.” Although it contested the defendant’s ineffective assistance of counsel
       claims, the State in its argument conceded that the defendant’s judicial corruption claims
       should be resolved at an evidentiary hearing. Judge Bertucci agreed that an evidentiary
       hearing should be held to resolve the defendant’s charges of judicial corruption, and he
       indicated that the parties should conduct discovery on both the corruption claim and the
       claim that the defendant’s trial counsel labored under a conflict of interest. Judge Bertucci
       then set the matter for a further status hearing.

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¶ 12       In April 1999, the defendant’s postconviction counsel withdrew his representation due
       to a conflict of interest, and new counsel was appointed for the defendant. On April 9, 2001,
       after several status hearings, the defendant’s new counsel appeared before Judge Diane G.
       Cannon. On that date, counsel informed the court that the defendant’s case was not set for
       an evidentiary hearing and that she was undertaking an investigation. The prosecutor, who
       had litigated the case before Judge Bertucci, did not interject.
¶ 13       On July 30, 2008, the defendant’s new postconviction counsel filed a supplemental
       petition for postconviction relief. In open court, counsel explained that the petition was
       intended to supplement the defendant’s original pro se petition, not previous counsel’s
       amended petition. The supplemental petition noted that Maloney had been convicted of
       accepting bribes in exchange for promises to “fix” trials. It further alleged that Dino Titone,
       the codefendant whose bench trial was held simultaneously with the defendant’s jury trial,
       had tendered a bribe to Maloney via Titone’s attorney. This claim was supported by an
       affidavit from Titone’s father, who described a scheme in which the attorney would give the
       money to a “bagman” named “McGee,” who would then pass the money to Maloney.
       Titone’s father further attested that the attorney told them “that as long as Maloney got two
       out of three” of the three codefendants, “it would be enough”; that is, “as long as [the
       defendant and Sorrentino] were found guilty, [Maloney] could get away with letting [Titone]
       go free.” Although Maloney ultimately found Titone guilty and sentenced him to death,
       Titone’s father speculated in his affidavit that Maloney reneged on their deal out of fear that
       the scheme would be uncovered. The defendant’s petition observed that Titone had been
       granted a new trial based on this information.
¶ 14       The supplemental petition asserted that the defendant’s pretrial counsel approached him
       with the idea of bribing Maloney but that the defendant was unable to gather the necessary
       funds. To support this claim, the defendant attached his own affidavit, as well as an affidavit
       from a relative who recalled that the defendant asked her for funds to fix his case. The
       petition made no mention of the defendant’s pro se claim of trial counsel’s conflict of
       interest.
¶ 15       On May 29, 2009, in a written order, Judge Cannon dismissed the defendant’s
       postconviction claims. On the corruption claims, Judge Cannon reasoned that the defendant
       was convicted by a jury, not Maloney, and she noted that the defendant cited no suspect
       rulings Maloney might have made in his case. Regarding the conflict-of-interest issue, Judge
       Cannon found that the record, which includes a transcript of the defendant’s waiving any
       conflict issues, belied the defendant’s conflict claim. The defendant now appeals to argue
       that the circuit court erred in dismissing his postconviction petition.
¶ 16       The Act provides a means by which a defendant may challenge his conviction for
       “substantial deprivation of federal or state constitutional rights.” People v. Tenner, 175 Ill.
       2d 372, 378, 677 N.E.2d 859 (1997). Except in cases where the death penalty has been
       imposed, proceedings under the Act are divided into three distinct stages. People v. Gaultney,
       174 Ill. 2d 410, 418, 675 N.E.2d 102 (1996). At the first stage, the trial court must examine
       the petition independently and summarily dismiss it if it is frivolous or patently without
       merit. Ill. Rev. Stat. 1991, ch. 38, ¶ 122-2.1; Gaultney, 174 Ill. 2d at 418. If not summarily
       dismissed, the petition proceeds to the second stage, at which an indigent defendant is

                                                -5-
       entitled to appointed counsel, the petition may be amended, and the State may answer or
       move to dismiss the petition. Ill. Rev. Stat. 1991, ch. 38, ¶¶ 122-4, 122-5; Gaultney, 174 Ill.
       2d at 418. At the second stage, the petition may be dismissed “when the allegations in the
       petition, liberally construed in light of the trial record, fail to make a substantial showing of
       a constitutional violation.” People v. Hall, 217 Ill. 2d 324, 334, 841 N.E.2d 913 (2005). A
       postconviction petitioner is not entitled to an evidentiary hearing as a matter of right; rather,
       to warrant an evidentiary hearing, the allegations in the petition must be supported by the
       record or by accompanying affidavits. People v. Coleman, 183 Ill. 2d 366, 381, 701 N.E.2d
       1063 (1998). Nonspecific and nonfactual assertions that merely amount to conclusions are
       not sufficient to warrant a hearing under the Act. Coleman, 183 Ill. 2d at 381. “In
       determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and
       in any accompanying affidavits are taken as true.” People v. Towns, 182 Ill. 2d 491, 503, 696
       N.E.2d 1128 (1998). A petition that is not dismissed at the first or second stage advances to
       the third stage, at which an evidentiary hearing is held. See Ill. Rev. Stat. 1991, ch. 38, ¶ 122-
       6; Gaultney, 174 Ill. 2d at 418. Dismissal of a petition at the second stage, as occurred here,
       is reviewed de novo. People v. Whitfield, 217 Ill. 2d 177, 182, 840 N.E.2d 658 (2005).
¶ 17        The defendant’s first argument on appeal is that his postconviction claims of judicial bias
       merited a third-stage evidentiary hearing. Maloney’s pattern of judicial corruption is well-
       documented (see, e.g., Bracy v. Gramley, 520 U.S. 899 (1997); United States v. Maloney, 71
       F.3d 645 (7th Cir. 1995)), and it need not be belabored here, except to say that the defendant
       is correct that Maloney has been shown to have accepted bribes to fix murder cases. The
       defendant argues that this corruption deprived him of his right to a fair trial.
¶ 18        “A fair trial in a fair tribunal is a basic requirement of due process.” People v. Hawkins,
       181 Ill. 2d 41, 50, 690 N.E.2d 999 (1998) (citing Bracy, 520 U.S. 899). “Fairness at trial
       requires not only the absence of actual bias but also the absence of the probability of bias.”
       Hawkins, 181 Ill. 2d at 50 (citing In re Murchison, 349 U.S. 133, 136 (1955)). “To this end,
       no person is permitted to judge cases in which he or she has an interest in the outcome.”
       Hawkins, 181 Ill. 2d at 50. “ ‘Every procedure which would offer a possible temptation to
       the average man as a judge to forget the burden of proof required to convict the defendant,
       or which might lead him not to hold the balance nice, clear and true between the state and
       the accused denies the latter due process of law.’ ” Hawkins, 181 Ill. 2d at 51 (quoting Tumey
       v. Ohio, 273 U.S. 510, 532 (1927)).
¶ 19        “[A] [defendant] who alleges that his trial judge’s corruption violated his right to a fair
       trial must establish (1) a ‘nexus’ between the judge’s corruption or criminal conduct in other
       cases and the judge’s conduct at [the defendant’s] trial; and (2) actual bias resulting from the
       judge’s extrajudicial conduct.” People v. Fair, 193 Ill. 2d 256, 261, 738 N.E.2d 500 (2000)
       (citing People v. Titone, 151 Ill. 2d 19, 30-31, 600 N.E.2d 1160 (1992)). Here, the
       defendant’s allegations and supporting documents, taken as true, emphatically establish both
       prongs of the above test.
¶ 20        On the first prong, the State concedes that Maloney was corrupt, and it further concedes
       that Maloney’s corruption tainted the trial of Dino Titone, a codefendant in this case. The
       State argues, however, that there is no “nexus” between Maloney’s corruption and the
       defendant’s own case. We disagree. Indeed, it is difficult to conceive how Maloney’s

                                                  -6-
       misconduct in Titone’s trial did not also infect the defendant’s trial. The trials were held
       simultaneously, concerned the same set of murders, and were both presided over by a man
       the State concedes had an interest in the proceedings. Further, notwithstanding the fact that
       the defendant’s trial was simultaneous with the unfair trial given to Titone, the defendant
       raised specific allegations tying Maloney’s interest in Titone’s case to a bias in the
       defendant’s case. As the defendant points out in his briefs, he has alleged that Maloney
       accepted a bribe in Titone’s case with the idea that he could conceal his perfidy by ensuring
       that Titone’s codefendants, including the defendant here, be found guilty. The defendant even
       supplied evidentiary support for this allegation, in the form of an affidavit from Titone’s
       father, who detailed Maloney’s scheme in Titone’s case. The nexus between Maloney’s
       corruption and this case is very strong, and the defendant has satisfied the first prong of the
       test for advancing a claim of judicial corruption.
¶ 21        To satisfy the second prong of the above test, a defendant “need not prove actual bias if
       he can prove that the trial judge had a personal interest in the outcome of the trial.” Fair, 193
       Ill. 2d at 263. We conclude that the defendant’s allegations, taken as true, satisfy this second
       prong for the same reasons they satisfy the first prong: they demonstrate Maloney’s interest
       in ensuring that the defendant be found guilty.
¶ 22        The State argues that the defendant’s corruption claim must fail because he cites no
       particular instances of suspect rulings at his trial, and because his guilt was determined by
       a jury, not by Maloney. Accordingly, the State argues, “it is completely unclear how Maloney
       could have engineered an unfair conviction.” The State’s argument misses the point. As we
       noted at the outset, a fair trial is a basic component of due process. Regardless of whether
       Maloney could have been effective in any attempts to steer the defendant’s verdict, the fact
       that he had an interest in doing so means that the defendant did not receive a trial before an
       impartial tribunal. The defendant’s allegations, taken as true, establish that he was deprived
       of this basic right at his trial, and he is entitled to a forum to vindicate this right. For that
       reason, we agree with the defendant that the circuit court erred in dismissing his
       postconviction claims regarding Maloney’s judicial corruption.
¶ 23        The defendant’s second argument on appeal is that his trial counsel provided him
       ineffective assistance. See U.S. Const., amend. VI; Strickland v. Washington, 466 U.S. 668
       (1984). He argues that counsel should have moved to re-open his motion to suppress after
       three trial witnesses testified that police admitted having physically coerced the defendant’s
       confession.
¶ 24        In response, the State argues that the defendant has waived or forfeited this argument,
       because it could have been raised on direct appeal. As the State points out, “[p]ostconviction
       claims are limited to those claims that were not and could not have been previously
       adjudicated on direct appeal.” People v. Sanders, 238 Ill. 2d 391, 398, 939 N.E.2d 352
       (2010). “Claims that were raised and decided on direct appeal are barred by res judicata and
       those claims that could have been raised, but were not, are considered waived.” Sanders, 238
       Ill. 2d at 398. The State further observes that the basis for the defendant’s argument that
       counsel should have re-opened the motion to suppress, that is, the testimony from the three
       trial witnesses, was included in the original record on appeal just as it is included in the
       current record. Thus, the State argues, the defendant could have raised this argument on

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       direct appeal and should be barred from doing so now.
¶ 25       In reply to the State’s waiver argument, the defendant notably does not assert that
       appellate counsel was ineffective for failing to raise this issue. Instead, the defendant argues
       that his claim is, in fact, based on matters outside the record, because he now alleges that one
       of the witnesses “informed [his] trial counsel a week before she testified at trial that [police]
       admitted” their physical coercion. The defendant argues that “the fact that trial counsel
       knew” of this testimony prior to trial “is new evidence not on the record.” However, we do
       not see, nor does the defendant explain, why this “new” evidence was required to present his
       ineffectiveness claim. The basis of his current ineffectiveness claim is that the trial testimony
       of the three witnesses should have prompted counsel to ask to re-open the motion to
       suppress. The substance of that testimony is readily apparent from the record as it existed on
       direct appeal. Further, it must be inferred from the contents of the three witnesses’ testimony,
       and the questions trial counsel asked to adduce that testimony, that counsel knew the
       witnesses would describe police admissions of abuse. Accordingly, we agree with the State
       that defendant could have raised this ineffective assistance claim in his direct appeal, and he
       is barred from doing so now.
¶ 26       The defendant’s final argument on appeal is that the circuit court erred in dismissing his
       claim that trial counsel improperly labored under a conflict of interest. As noted above, the
       defendant asserted in his pro se postconviction petition that his trial counsel concurrently
       represented a family member of one of the victims and “discussed aspects of his
       representation” of the defendant with the family.
¶ 27       “Persons accused of crime enjoy a sixth amendment right to the effective assistance of
       counsel.” People v. Spreitzer, 123 Ill. 2d 1, 13, 525 N.E.2d 30 (1988). “Effective assistance
       means assistance by an attorney whose allegiance to his client is not diluted by conflicting
       interests or inconsistent obligations.” Spreitzer, 123 Ill. 2d at 13-14. Illinois recognizes two
       classes of impermissible attorney conflicts of interest. See People v. Spreitzer, 123 Ill. 2d 1.
¶ 28       The first category of conflict, termed “per se conflicts,” consist of those “certain facts
       *** [that] engender, by themselves, a disabling conflict” (emphasis in original), usually “the
       defense attorney’s prior or contemporaneous association with either the prosecution or the
       victim.” Spreitzer, 123 Ill. 2d at 14. “The 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 *** which would
       benefit from an unfavorable verdict for the defendant.” Spreitzer, 123 Ill. 2d at 16. In such
       cases, the defendant need not show prejudice in order to secure a reversal of his conviction.
       Spreitzer, 123 Ill. 2d at 15.
¶ 29       The second category of conflict, often called a “potential,” “possible,” or “actual”
       conflict, describes something short of a per se conflict. See Spreitzer, 123 Ill. 2d at 17-18.
       In such cases, a defendant’s convictions may be reversed if the trial court was informed of
       the problem and failed to take adequate protective steps, or where the court was not apprised
       and the defendant can show that “ ‘an actual conflict of interest adversely affected’ counsel’s
       performance.” Spreitzer, 123 Ill. 2d at 18 (quoting Cuyler v. Sullivan, 446 U.S. 335, 350
       (1980)).
¶ 30       Here, the defendant alleges alternatively that both forms of conflict were present here.


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       First, he argues that counsel labored under a per se conflict, because his representation of a
       family member of one of the victims divided his loyalty and gave him incentive to disregard
       the defendant’s interests. The State does not repeat the circuit court’s reasoning that the
       defendant waived this conflict in open court, and we would reject such a contention in any
       event. As the defendant observes in his brief, his waiver in open court pertained to counsel’s
       past representation of a member of the Infelise family, but his postconviction claim is based
       on counsel’s continued representation of Ross Infelise. In lieu of this waiver argument, the
       State raises two points.
¶ 31       First, the State responds by noting that the defendant failed to indicate the nature of trial
       counsel’s representation of Ross Infelise, and the State argues that the defendant was
       required at least to explain why he was unable to provide this information in his petition.
       However, in our reading, the defendant did explain why this information was missing from
       his petition. The defendant stated plainly in his petition that counsel did not inform him of
       the nature of the representation of the victim’s family.
¶ 32       Second, the State offers that we cannot determine the level of counsel’s conflict without
       a more specific description of the nature of Ross Infelise’s familial relationship to the victim.
       While we agree that the nature of the relationship might bear on the intensity of counsel’s
       conflict, we conclude that the defendant has pled sufficient facts to support his claim of a
       conflict. Even without knowing Ross Infelise’s relationship to the victim, we know that
       counsel owed a duty of loyalty to the Infelise family. Presumably, counsel was motivated to
       maintain the family’s favor, and the defendant’s acquittal was unlikely to advance that aim.
       Further, notwithstanding that point, the defendant directly alleged that counsel admitted
       having discussed his case with the Infelise family. This allegation, taken as true, is strong
       evidence of counsel’s divided loyalty. In total, then, the defendant’s postconviction
       allegations regarding his counsel make a substantial showing of a constitutional violation,
       and they warrant an evidentiary hearing. Because the evidence adduced at any such hearing
       may affect the strength of the defendant’s allegations in unforeseeable ways, we do not now
       resolve the questions of whether counsel suffered from a per se conflict, or what effect an
       actual conflict might have had on the defendant’s trial. We hold only that the defendant’s
       allegations make a substantial showing of an impermissible conflict whose contours may be
       defined in further proceedings.
¶ 33       For the foregoing reasons, we affirm the circuit court’s dismissal of the defendant’s claim
       that he received ineffective assistance of counsel due to counsel’s failure to re-open his
       motion to suppress. However, we reverse the trial court’s dismissal of his judicial corruption
       claim and his claim that trial counsel labored under a conflict of interest. We remand this
       matter to the circuit court for an evidentiary hearing on these two claims, to determine if
       either or both entitle the defendant to a new trial.

¶ 34       Affirmed in part and reversed in part; cause remanded.




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