                           ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           People v. Patterson, 2013 IL App (2d) 120359




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                     COWARNA L. PATTERSON, Defendant-Appellant.



District & No.              Second District
                            Docket No. 2-12-0359


Filed                       September 26, 2013


Held                        The second-stage dismissal of defendant’s postconviction petition was
(Note: This syllabus        upheld over her contentions that the public defender who represented her
constitutes no part of      at trial had a conflict of interest based on his acceptance of a position as
the opinion of the court    an assistant State’s Attorney and that the public defender who assumed
but has been prepared       the representation of defendant might have been beholden to his
by the Reporter of          predecessor and failed to zealously represent defendant, since defendant
Decisions for the           failed to allege any specific facts showing an actual conflict of interest on
convenience of the          the part of either public defender and the record suggested an agreement
reader.)
                            that defendant had waived any possible conflict.


Decision Under              Appeal from the Circuit Court of Winnebago County, No. 02-CF-2328;
Review                      the Hon. Steven G. Vecchio, Judge, presiding.



Judgment                    Affirmed.
Counsel on                 Peter A. Carusona and Mark D. Fisher, both of State Appellate
Appeal                     Defender’s Office, of Ottawa, for appellant.

                           Joseph P. Bruscato, State’s Attorney, of Rockford (Lawrence M. Bauer
                           and Jay Paul Hoffmann, both of State’s Attorneys Appellate Prosecutor’s
                           Office, of counsel), for the People.


Panel                      JUSTICE HUDSON delivered the judgment of the court, with opinion.
                           Justices Schostok and Birkett concurred in the judgment and opinion.




                                            OPINION

¶1          Defendant, Cowarna L. Patterson, appeals the second-stage dismissal of her
        postconviction petition. She contends that a third-stage evidentiary hearing is necessary to
        resolve issues surrounding her trial attorney’s conflict of interest. We affirm.
¶2          Defendant was charged with first-degree murder (720 ILCS 5/9-1(a)(2) (West 2002)) for
        the stabbing death of Tyrone Carthell. She was represented at trial by assistant public
        defender Michael Combs. The jury found defendant guilty. At a status hearing prior to
        sentencing, assistant public defender Edward Light told the court that Combs had recently
        become an assistant State’s Attorney. Light said that he intended to discuss the case with
        Combs before sentencing. At the sentencing hearing, Light confirmed that he had reviewed
        some matters with Combs. One of the trial prosecutors, Wendy Larson, mentioned that she
        was currently Combs’ supervisor.
¶3          The trial court sentenced defendant to the minimum of 20 years’ imprisonment and
        denied her posttrial motion. On direct appeal, this court affirmed. People v. Patterson, No.
        2-03-0916 (2005) (unpublished order under Supreme Court Rule 23) (Patterson I).
¶4          Defendant filed a pro se postconviction petition, alleging that Combs labored under a
        conflict of interest during the trial because he had accepted a position with the State’s
        Attorney’s office. The trial court summarily dismissed the petition, but this court reversed
        and remanded for second-stage postconviction proceedings. People v. Patterson, No. 2-06-
        0668 (2008) (unpublished order under Supreme Court Rule 23) (Patterson II). We held that,
        while Combs’ acceptance of a position with the State’s Attorney’s office did not create a per
        se conflict, defendant might be able to show an actual conflict. Id. at 5.
¶5          Following remand, the trial court appointed counsel, who filed an amended petition. The
        State moved to dismiss it, and the trial court granted the motion. Defendant timely appeals.
¶6          Defendant contends that the cause should be remanded for a third-stage postconviction
        hearing on the following issues: (1) when Combs applied to and/or knew he would be joining

                                                 -2-
       the State’s Attorney’s office; (2) whether, if he applied and/or knew prior to trial, he failed
       to present evidence or otherwise zealously advocate on defendant’s behalf; and (3) whether
       Light was so beholden to Combs for advice at sentencing that he failed to investigate or
       consider including in his posttrial motion a possible claim of Combs’ ineffective assistance.
       Defendant asserts that it is impossible to discern whether Combs had a per se or an actual
       conflict of interest, and whether Light was able to adequately represent her at posttrial
       proceedings, without deciding these factual issues.
¶7         In response, the State argues the following. The record shows that the parties and the trial
       court knew well before trial of Combs’ intent to join the State’s Attorney’s office and that
       defendant waived any potential conflict. In any event, Patterson II represents the law of the
       case that there was not a per se conflict of interest and that decision is consistent with
       precedent that only a prior or contemporaneous association with the prosecution creates a per
       se conflict. While Patterson II held open the possibility that defendant could establish an
       actual conflict of interest, to do so she needed to demonstrate some specific shortcoming in
       Combs’ representation attributable to the conflict. However, she failed to even allege, much
       less provide evidentiary support for, any such shortcoming. Further, Light could not have
       been ineffective at the sentencing hearing, because defendant received the minimum
       sentence. Finally, as defendant did not allege any specific facts showing an actual conflict
       of interest by Combs, Light could not have been ineffective for failing to include the issue
       in the posttrial motion. We agree with the State.
¶8         Under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West
       2006)), a convicted defendant may collaterally attack her conviction and sentence based on
       violations of her constitutional rights. People v. Erickson, 183 Ill. 2d 213, 222 (1998).
       Proceedings under the Act are divided into three stages. People v. Gaultney, 174 Ill. 2d 410,
       418 (1996). During the first stage, the trial court independently examines the petition within
       90 days after filing. 725 ILCS 5/122-2.1(a) (West 2006). If the petition is frivolous or
       patently without merit, it will be summarily dismissed. 725 ILCS 5/122-2.1(a)(2) (West
       2006).
¶9         If the petition advances to the second stage, counsel may be appointed for the defendant.
       725 ILCS 5/122-4 (West 2006). Counsel may then file an amended petition, which the State
       may answer or move to dismiss. 725 ILCS 5/122-5 (West 2006). To survive dismissal at the
       second stage, a petition must, when liberally construed in light of the record, “ ‘make a
       substantial showing of a constitutional violation.’ ” People v. Buchanan, 403 Ill. App. 3d
       600, 602 (2010) (quoting People v. Hall, 217 Ill. 2d 324, 334 (2005)). A postconviction
       petitioner is not entitled to an evidentiary hearing as a matter of right. Id. The petition’s
       allegations must be supported by the record or by accompanying affidavits. Id. Nonspecific
       and nonfactual assertions that amount to mere conclusions are insufficient to require a
       hearing. People v. Coleman, 183 Ill. 2d 366, 381 (1998).
¶ 10       Defendant’s petition alleged that trial counsel labored under a conflict of interest. A
       defendant’s sixth amendment right to the effective assistance of counsel includes the right
       to conflict-free representation. People v. Morales, 209 Ill. 2d 340, 345 (2004). In deciding
       whether a defendant received ineffective assistance of counsel based on an alleged conflict
       of interest, we first resolve whether counsel labored under a per se conflict. A per se conflict

                                                 -3-
       is one where “ ‘ “facts about a defense attorney’s status *** engender, by themselves, a
       disabling conflict.” ’ (Emphasis in original.)” People v. Hernandez, 231 Ill. 2d 134, 142
       (2008) (quoting Morales, 209 Ill. 2d at 346, quoting People v. Spreitzer, 123 Ill. 2d 1, 14
       (1988)). When a defendant’s attorney has a tie to a person or entity that would benefit from
       a verdict unfavorable to the defendant, a per se conflict arises. People v. Janes, 168 Ill. 2d
       382, 387 (1995). “ ‘[I]f counsel, unknown to the accused and without his knowledgeable
       assent, is in a duplicitous position where his full talents–as a vigorous advocate having the
       single aim of acquittal by all means fair and honorable–are hobbled or fettered or restrained
       by commitments to others,’ ” effective assistance of counsel is lacking. People v. Stoval, 40
       Ill. 2d 109, 111-12 (1968) (quoting Porter v. United States, 298 F.2d 461, 463 (5th Cir.
       1962)).
¶ 11        The Spreitzer court explained the justification underlying the per se rule, noting that
       counsel’s knowledge that a result favorable to his other client or association would inevitably
       conflict with a defendant’s interest “might ‘subliminally’ affect counsel’s performance in
       ways [that are] difficult to detect and demonstrate.” Spreitzer, 123 Ill. 2d at 16. The court
       further noted the possibility that counsel’s conflict would subject him or her to “ ‘later
       charges that his representation was not completely faithful.’ [Citations.]” Id. at 17.
¶ 12        If a per se conflict exists, a defendant is not required to show that counsel’s “ ‘actual
       performance was in any way affected by the existence of the conflict.’ ” Morales, 209 Ill. 2d
       at 345 (quoting Spreitzer, 123 Ill. 2d at 15). In other words, a defendant is not required to
       show actual prejudice when a per se conflict exists. Stoval, 40 Ill. 2d at 113. Unless a
       defendant waives his right to conflict-free counsel, a per se conflict is grounds for automatic
       reversal. Morales, 209 Ill. 2d at 345.
¶ 13        The supreme court has identified three situations where a per se conflict exists: (1) when
       defense counsel has a prior or contemporaneous association with the victim, the prosecution,
       or an entity assisting the prosecution; (2) when defense counsel contemporaneously
       represents a prosecution witness; and (3) when defense counsel is a former prosecutor who
       was personally involved in the prosecution of the defendant. Hernandez, 231 Ill. 2d at 143-
       44.
¶ 14        If a per se conflict does not exist, a defendant can still establish a violation of his right
       to effective assistance of counsel by showing an actual conflict that adversely affected his
       counsel’s performance. Morales, 209 Ill. 2d at 348-49. To do so, a defendant must point to
       “ ‘some specific defect in his counsel’s strategy, tactics, or decision making attributable to
       [a] conflict.’ ” Id. at 349 (quoting Spreitzer, 123 Ill. 2d at 18). In this situation, mere
       “[s]peculative allegations and conclusory statements are not sufficient to establish that an
       actual conflict of interest affected counsel’s performance.” Id. (citing People v. Williams, 139
       Ill. 2d 1, 12 (1990)).
¶ 15        In Patterson II, we held that defendant’s allegations that Combs had agreed to move to
       the State’s Attorney’s office some time in the future did not create a per se conflict.
       Patterson II, slip order at 4-5. The law-of-the-case doctrine prevents relitigation of an issue
       already decided in the same case. People v. Tenner, 206 Ill. 2d 381, 395 (2002); People v.
       Patterson, 154 Ill. 2d 414, 468 (1992). We agree with the State that Patterson II is the law


                                                  -4-
       of the case on this point.
¶ 16        Defendant does not cite any new facts or changes in the law to suggest that Patterson II
       was wrongly decided. Defendant suggests only that People v. Wilson, 348 Ill. App. 3d 360
       (2004), which we cited in Patterson II, is factually distinguishable because the attorney there
       represented the defendant only in postconviction proceedings. However, a departure from
       Patterson II is not justified merely because one of the cases we cited has different facts.
       Indeed, our disposition was consistent with precedent that only a prior or contemporaneous
       association with the prosecution creates a per se conflict. See Hernandez, 231 Ill. 2d at 143-
       44.
¶ 17        Thus, there is no need for a hearing on defendant’s first proposed issue. Assuming that
       Combs knew before trial that he would be joining the State’s Attorney’s office, this
       knowledge would not create a per se conflict. Indeed, the State points out that the record
       shows that both parties knew beforehand that Combs would be joining the prosecutor’s
       office. At a hearing on March 26, 2003, the court assigned the case to Judge Robert Coplan
       for trial. The court set a status hearing for Judge Coplan to, inter alia, “address the issue of
       waiver of any potential conflict on the part of [Combs] continuing to represent” defendant.
       Judge Coplan entered an order showing that the hearing took place, although the order did
       not specifically mention that defendant waived any potential conflict. Moreover, although
       the record contains no transcript of that hearing, the clear inference is that the parties and the
       court were aware that Combs had taken a position with the State’s Attorney’s office. Prior
       to sentencing, Light and the prosecutor agreed that defendant had waived the possible
       conflict.
¶ 18        Defendant’s second proposed issue for a hearing is “whether, if [Combs] applied to
       and/or knew prior to trial that he would be joining the prosecutor’s office, he failed to present
       evidence or otherwise zealously advocate on defendant’s behalf,” in other words, whether
       Combs had an actual conflict of interest. Although Patterson II foreclosed the issue of a per
       se conflict, we held that defendant was not foreclosed “from attempting to prove an actual
       conflict of interest during the trial.” Patterson II, slip order at 5. However, in seeking a
       remand for a hearing on that issue, defendant places the cart before the horse.
¶ 19        To show an actual conflict of interest, a defendant must point to some specific defect in
       counsel’s strategy or decisionmaking attributable to such a conflict. Morales, 209 Ill. 2d at
       349. Moreover, to survive dismissal at the second stage, a postconviction petition must allege
       specific facts that make a substantial showing of a constitutional violation. Buchanan, 403
       Ill. App. 3d at 602. The allegations must be supported by the record or accompanying
       affidavits. Id. Vague assertions that amount to nothing more than conclusions are
       insufficient. Coleman, 183 Ill. 2d at 381.
¶ 20        Here, leaving aside any waiver of the alleged conflict, the amended petition alleged only
       generally that defendant was denied the effective assistance of counsel because Combs
       decided before trial to accept a position with the State’s Attorney’s office. Defendant alleged
       no specific defects in Combs’ performance and, needless to say, did not provide affidavits
       or citations to the record showing specific instances of defective performance. A third-stage
       postconviction hearing is intended to resolve factual issues arising from the petition and the


                                                  -5-
       State’s response. It is not intended as a discovery tool to allow a defendant to marshal facts
       that should have been included in an original or amended petition.
¶ 21       Defendant’s final proposed issue is whether Light, who represented defendant at posttrial
       and sentencing proceedings, “felt so beholden to Mr. Combs for advice at sentencing that he
       failed to investigate or consider including in his post-trial motion a possible claim of Combs’
       ineffective assistance or conflict of interest.” Initially, we note that this precise issue was not
       included in the amended petition. The petition alleged that Light was ineffective in that he
       “relied upon information and advice of Attorney Combs at the sentencing stage herein.” As
       the State points out, Light cannot be deemed ineffective at the sentencing stage, as defendant
       received the minimum sentence. On appeal, defendant rephrases the issue as whether Light
       was so beholden to Combs for advice at sentencing that he neglected to allege Combs’
       ineffectiveness in the posttrial motion.
¶ 22       It is undisputed that Light’s association with Combs created no per se conflict. To
       establish an actual conflict, defendant had to allege some specific defect by Light in
       preparing and arguing the posttrial motion. As defendant has identified no specific defect that
       could support a finding of an actual conflict, or of ineffective assistance generally,1 as to
       Combs, Light could not have been ineffective for failing to include such an issue in the
       posttrial motion.
¶ 23       As the amended petition did not contain specific allegations showing that either Combs
       or Light was ineffective, the trial court did not err by dismissing it. An evidentiary hearing
       would not resolve any factual issues, but would merely give defendant another opportunity
       to develop a factual basis for her claims, which should have been included in the amended
       petition.
¶ 24       Accordingly, the judgment of the circuit court of Winnebago County is affirmed.

¶ 25       Affirmed.




               1
                The petition alleged that Combs was ineffective for failing to challenge for cause a juror
       who indicated that he could not devote his full attention to the case because of work responsibilities,
       but defendant does not develop this issue on appeal.

                                                    -6-
