                             2018 IL App (2d) 160562 

                                  No. 2-16-0562

                         Opinion filed November 27, 2018 

______________________________________________________________________________

                                            IN THE


                             APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Lake County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 14-CF-1069
                                       )
DANIEL ACEVEDO,                        ) Honorable
                                       ) Mark L. Levitt,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

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

                                           OPINION

¶1     In the direct appeal of his conviction of unlawful possession of a weapon by a felon,

defendant, Daniel Acevedo, argues that we should reverse his conviction and remand for a new

trial because he did not knowingly waive his right to conflict-free counsel. Alternatively, he

argues that he was improperly assessed a $250 DNA analysis fee and a $300 Violent Crime

Victims Assistance Fund fee. For the reasons that follow, we reverse and remand for a new trial.

¶2                                    I. BACKGROUND

¶3     On February 11, 2015, defendant was indicted on one count of unlawful possession of a

weapon by a felon (720 ILCS 5/24-1.1(a) (West 2014)), one count of unlawful possession of

firearm ammunition by a felon (id.), one count of defacing identification marks on a firearm (id.
2018 IL App (2d) 160562


§ 24-5(b)), one count of unlawful use of a weapon (id. § 24-1(a)(7)(ii)), and one count of

obstructing justice (id. § 31-4(a)). 1

¶4      A jury trial began on November 2, 2015. After the jury had been selected, but before the

trial began, the State brought to the trial court’s attention that a per se conflict of interest existed

between defense counsel and defendant. The following colloquy took place:

                  “[THE STATE]: Judge, we did have an issue we needed to spread of record. I did

        get a text from [defense counsel] this morning. Judge, I did get Lorena Montes served

        with a subpoena Monday afternoon after the jury was picked. Her name was on the

        Statement of Facts. She is alleged and we believe the evidence will show that she was in

        the vehicle with this defendant at the time our officers made an observation of the butt of

        a shotgun in the car. We did indicate to [defense counsel] that she may be a witness.

                  [Defense counsel] does represent Lorena Montes. There is one pending case that

        is set for trial in December. It is a Class A misdemeanor. It does involve this defendant

        as well as, obviously, this case does. I do intend to call Lorena Montes this morning or

        this afternoon to ask her numerous material facts regarding this particular case.

                  Having spoken with her I can spread of record that she would, in fact, deny being

        in the car with this defendant as they were on the interstate and deny that this defendant

        ever made any admissions to her. We believe the evidence is otherwise.

                  Judge, we do intend to call her for several different reasons and several facts that

        she will establish that we need to prove our case.

                  Judge, we’re here with a per se conflict that the defense attorney represents Miss

        Montes and [defendant] contemporaneously.

        1
            The State dismissed the obstructing-justice charge prior to trial.



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             THE COURT: [Defense counsel]?

             [DEFENSE COUNSEL]: Judge, Miss Montes’ case is 15 CM 195. It is set for

      trial before Judge Hughes on December 16th, 2015.          I do represent her.     I have

      represented her during the pendency of that case. It does derive from the situation that

      occurred here but after the fact, so none of the facts—

             THE COURT: Of that case are germane to this case.

             [DEFENSE COUNSEL]: I would argue they are not because it is an obstructing

      charge dealing with allegations that she may have tried to conceal or assisted in the

      concealment of [defendant] after the commission of this offense.

             THE COURT: Okay. And have you gone through—obviously, I’m sure you

      have—all of the assertions that were made by the State today with [defendant]?

             [DEFENSE COUNSEL]: I have, Your Honor, and I know he’s prepared to

      answer the Court as to some of these as well, so it’s not just my word. But we did cover

      the conflict, the ramifications of that, what we expect to happen if Lorena is called as a

      witness and how it affects him and his rights.

             THE COURT: All right. Permission to speak to your client?

             [DEFENSE COUNSEL]: Yes, Judge.

             THE COURT: [Defendant], this is very serious, so I want to make sure that you

      are completely following what’s happening here.

             The State informed me that there is a per se conflict of interest, which means in

      this case, that your attorney contemporaneously, that means at the same time as,

      represents you and a State’s witness. Do you understand that?

             THE DEFENDANT: Yes, sir.



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             THE COURT: And because of that representation, there are issues that may or

      may not come up during the course of his representation of you. Do you understand that?

             THE DEFENDANT: Yes, sir.

             THE COURT: And did you discuss those with [defense counsel]?

             THE DEFENDANT: Yes, Your Honor.

             THE COURT: You’re entitled to have conflict-free counsel, which means in this

      case that if you desire, I will continue the case on your motion. I will get you a new

      attorney. You are not going to be required to continue with [defense counsel] if you

      think that the nature of his representation or anything about the conflict of interest would

      affect you adversely, which means in a bad way. Do you understand that?

             THE DEFENDANT: Yes, sir.

             THE COURT: Did you discuss all those scenarios with [defense counsel]?

             THE DEFENDANT: Yes.

             THE COURT: Do you have any questions about what it involves right now?

             THE DEFENDANT: No.

             THE COURT: So do you have any decision which you would wish me to do in

      this case?

             THE DEFENDANT: Just proceed with the same attorney.

             THE COURT: So knowing everything that you know about this conflict, you

      desire to waive any objection you have to proceeding and to allow [defense counsel] to

      continue to represent you?

             THE DEFENDANT: Yes.




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             THE COURT: Okay. And today, sir, I just want to ask you, have you taken any

      medication? Are you under the influence of any kind of drug or alcohol?

             THE DEFENDANT: No, sir.

             THE COURT: And you appear to be following everything I say, but have you had

      any difficulty understanding any of the concepts or anything that we’ve discussed today?

             THE DEFENDANT: No, sir.

             THE COURT: Very good.

             [THE STATE]: I will spread of record as well that in case it becomes an issue

      later that the People of the State of Illinois are not offering Lorena Montes any

      consideration for her testimony. She has a pending case which from this point on she’ll

      either have to straight plea or go to trial. We will not be making any offers, so there will

      not be a later claim by this defendant that after the fact we gave her a deal because of her

      testimony in this case. There is no offer to her, and there will not be an offer to her, and

      we believe, certainly, this conflict has been waived sufficiently.

             THE COURT: I find that based on everything that I heard so far, my discussion

      with [defendant], I find that I’ve been informed of the nature and circumstances involved

      in this per se conflict. I am satisfied that the issues have been fully vetted, disclosed to

      me and to [defendant].

             I do find that this is a waivable conflict and based on my discussion with

      [defendant] here today, I find that his waiver is knowing and voluntary. I will allow you

      to waive the conflict, [defendant], and you may proceed to trial with [defense counsel]

      since that is your desire. Okay?

             THE DEFENDANT: Yes, sir.



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               THE COURT: Okay. You can have a seat with your lawyer.”

¶5     The evidence at trial generally established the following. At approximately 12:30 in the

morning on April 20, 2014, Illinois State Police Sergeant Ken Benson was in his squad car when

he observed a vehicle speeding on I-94 in Lake County. He activated his emergency lights and

stopped the vehicle. He approached the driver’s side of the vehicle and observed a male driver

and a female passenger. The lighting was sufficient to allow Benson to see the driver’s face and

the passenger’s face. While speaking with the driver, Benson saw what appeared to be a sawed-

off shotgun lying in the back seat. It was located behind a baby seat. He could see that the entire

handle of the gun was covered in black tape. When Benson asked the driver what was in the

backseat, the driver “said something on the affect [sic] of there’s nothing in the back seat, kind of

just playing it off.” Benson asked the driver to exit the vehicle. As Benson went to grab the

door handle, the vehicle sped off. Benson ran to his squad car to advise dispatch what had

happened. Using his onboard computer, Benson learned that the vehicle was registered to

Lorena Montes. Benson could see Montes’s driver’s license photograph and recognized her to

be the female passenger. Benson identified People’s exhibit No. 4 as Montes’s driver’s license

photograph and identifying information. While Benson remained on the scene, other officers

were dispatched to Montes’s address, where they were told that defendant was Montes’s

boyfriend. Using his onboard computer, Benson located defendant’s driver’s license photograph.

Benson testified that when he saw the photograph, although defendant’s hair was “slightly

different,” he believed defendant to be the driver of the vehicle. Benson identified People’s

exhibit No. 5 as defendant’s driver’s license photograph and identifying information. Officers

were dispatched to defendant’s address, where the vehicle was located.             Benson went to

defendant’s address and saw the vehicle. The gun was no longer in the back seat.



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¶6     Benson testified further that, on April 23, 2014, he learned that a sawed-off shotgun had

been found on an exit ramp about one-quarter mile away from the location of the traffic stop. He

was shown People’s exhibit No. 3, a picture of the gun, which had black duct tape on the handle.

Benson identified it as the gun that he had seen in the back seat of the vehicle. Benson identified

People’s exhibit No. 2 as a video recording of the traffic stop that was taken from his squad car.

The video was played for the jury.

¶7     Illinois State Police Trooper Roman Nebelski testified that he was on patrol on April 23,

2014, and was flagged down by a construction worker while exiting I-94 onto Belvidere Road.

The worker gave him a sawed-off shotgun with black tape wrapped around the handle. There

was a single unfired shotgun shell in the gun. Nebelski identified People’s exhibit No. 3 as a

photograph of the gun and People’s exhibit No. 1 as the actual gun.

¶8     Mark Stammacher testified that, in April 2014, he was working on an exit ramp off I-94

when he found a sawed-off shotgun in the grass on the right side of the ramp, about 10 to 15 feet

off the road. He flagged down a state trooper and gave him the gun. He identified People’s

exhibit No. 3 as a photograph of the gun.

¶9     Fred Tomasek, a forensic scientist with the Illinois State Police crime lab, testified that he

examined People’s exhibit No. 1. The gun was operational. The manufacturer’s serial number

had been partially scratched off.

¶ 10   Montes testified that she was 23 years old. She, along with her three-year-old son, lived

with her parents and sisters in Lake Villa. Defendant was her son’s father. In April 2014, she

was dating defendant. He lived with his parents in Round Lake, and she sometimes spent the

night there. She owned a black Saturn vehicle with a child’s car seat in the back. Defendant did

not have permission to drive her car, and he never used her car. On April 20, 2014, she drove



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her car to a friend’s house in Chicago. Defendant was not with her. She parked her car in the

driveway. She got drunk and spent the night at her friend’s house. She thought that she

“blacked out.” When she woke up the next morning, her car was gone. She took the train to

Round Lake. One of defendant’s sisters picked her up and drove her to her parents’ house. A

few days later, she called the police and learned that her car had been towed. She believed that

she called the Round Lake police. She denied that she was in a car that was pulled over by the

Illinois State Police on April 20, 2014. She testified that she did not own a gun. She was shown

People’s exhibit No. 1 and testified that the gun was not hers and was never in her car.

¶ 11   On cross-examination, Montes testified that she never received any phone calls from the

police concerning her car and that no one phoned her to tell her that the car was in their

possession.

¶ 12   The parties stipulated that no fingerprints suitable for comparison were found on the gun

and that defendant had been previously convicted of a felony.

¶ 13   The State rested. Defendant moved for a directed verdict and the motion was denied.

Defendant presented no evidence.

¶ 14   The jury found defendant not guilty of possession of firearm ammunition by a felon and

guilty of the remaining charges. Defendant’s motion for a new trial was denied.

¶ 15   Following a sentencing hearing, the trial court sentenced defendant to 11 years in prison.

Defendant filed a motion for reconsideration of his sentence, which the trial court denied.

Defendant timely appealed.

¶ 16                                     II. ANALYSIS

¶ 17   Defendant argues that he was denied his right to conflict-free counsel, because the trial

court did not obtain a knowing waiver of that right. We agree.



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¶ 18    A criminal defendant has the right to effective assistance of counsel, which includes the

right to conflict-free representation from his attorney. People v. Washington, 101 Ill. 2d 104,

109-10 (1984); People v. Stoval, 40 Ill. 2d 109, 111 (1968). The supreme court has identified

three situations in which a per se conflict of interest exists: “(1) where defense counsel has a

prior or contemporaneous association with the victim, the prosecution, or an entity assisting the

prosecution; (2) where defense counsel contemporaneously represents a prosecution witness; and

(3) where defense counsel was a former prosecutor who had been personally involved with the

prosecution of defendant.” People v. Fields, 2012 IL 112438, ¶ 18. Here, there is no dispute

that, because defense counsel represented a State witness, a per se conflict of interest existed.

“Unless a defendant waives his right to conflict-free representation, a per se conflict is automatic

grounds for reversal.” Id. The question here is whether the conflict was validly waived by

defendant. To be valid, a defendant’s waiver of a conflict must be knowing. People v. Olinger,

112 Ill. 2d 324, 339 (1986). “A defendant will not be deemed to have waived a conflict unless

he is admonished as to the existence of the conflict and its significance.” (Emphasis added.) Id.

We indulge every reasonable presumption against defendant’s waiver. See People v. Lawson,

163 Ill. 2d 187, 208-09 (1994).

¶ 19   We find that defendant’s waiver was not knowing. To be sure, the existence of the

conflict was brought to the trial court’s attention and discussed with defendant. The State told

the court that it intended to call Montes, what it believed the evidence would show concerning

Montes’s involvement in defendant’s offense, and the substance of Montes’s anticipated

testimony.   The court asked defense counsel whether he went over the State’s assertions

concerning Montes with defendant. Defense counsel told the court that he did cover with

defendant “the conflict, the ramifications of that, what we expect to happen if [Montes] is called



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as a witness and how it affects [defendant] and his rights.” The court told defendant that “there

are issues that may or may not come up.”           The court asked defendant whether he had

“discuss[ed] all those scenarios with [defense counsel],” and defendant indicated that he had.

¶ 20   Although the record makes clear that defendant was aware of the existence of the

conflict, the record does not establish that defendant was advised of the significance of the

conflict. The record does not reveal the specifics of the discussions between counsel and

defendant. Counsel never explained to the court what information he had provided to defendant

concerning the ramifications of the conflict. Nor did defendant indicate that he knew the

possible impact that the conflict could have on counsel’s ability to zealously represent him. The

court told defendant that the conflict was “serious” and that there were “issues that may or may

not come up,” but it never explained to defendant, in a way he might understand, how the

conflict could impact counsel’s representation of him. See People v. Poole, 2015 IL App (4th)

130847, ¶ 36 (finding waiver invalid, in part because “the record does not reveal whether

defendant was advised of the conflict in a way he might understand how it could affect his

representation”).   For instance, the court never advised defendant that, due to counsel’s

representation of Montes, counsel could be reluctant to cross-examine Montes in a way that

would be adversarial to her case but beneficial to defendant’s. In sum, because the record does

not show that defendant was advised of the significance of the conflict, we find that defendant’s

waiver of conflict-free counsel was not knowing.

¶ 21   Based on the foregoing, we reverse defendant’s conviction and remand for a new trial.

We find no double-jeopardy bar to retrial where the evidence presented against defendant was

such that a rational trier of fact could have found him guilty beyond a reasonable doubt. People

v. Fillyaw, 409 Ill. App. 302, 320 (2011). However, we note that our determination regarding



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the evidence is not binding on retrial and does not express our opinion as to defendant’s ultimate


guilt or innocence. People v. Jackson, 2012 IL App (1st) 102035, ¶ 21. Given this holding, we


need not consider defendant’s alternative arguments.


¶ 22                                   III. CONCLUSION


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


¶ 24   Reversed and remanded.





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