proceedings the standard here is whether mr jones suspicion and the company documentation make a substantial showing of a constitutional violation in making this determination the court must assume the truth of the allegations so attached to jones's petition we have docket entries from the vermillion county circuit court showing that zone represented the state's jail house next witness arthur brett while he simultaneously represented tyson jones the petition included sounds motion seeking appointment of new counsel parker brett and it stated in jones own work i'm sorry in sones own words that he represented tyson jones that he represented arthur brett and council cannot give individual loyalty to arthur every reasonable presumption against its waiver a per se conflict exists when facts about the attorney status by themselves create a conflict nothing more than defense counsel contemporaneous representation of  state's witness is necessary to establish a per se conflict when a person a conflict of interest exists the defendant is not required to show actual prejudice instead of reversal is automatic unless the record reflects that the defendant was aware of the fields in this matter not people know what to say i say that he was incorrect the problem here is that when you're talking about a state's witness against your client pretrial contemporaneous representation is a per se conflict the problem with this is that it's not him song which the court and was relieved of mr britt's case all his attorney client privilege doesn't suddenly disappear he still owes his prior duty of loyalty to mr brick or whatever conversations they had whatever information he has from him and so when mr britt is on the stand testifying against tyson jones constrained by what he knows and those conflicts come out in subtle ways that's why we don't have to show actual prejudice here with the per se clip that according in this court from  murphy it has been very clear that when the state's witness has been represented when a lawyer represents both a state witness and a defense attorney i'm sorry and the defendant even though he has been removed from that witnesses case prior to the trial that attorney client privilege and the dangers inherent in it still carry over through the trial and this court's found that those are per se complex fire reversal so it's really doesn't  realizing what is that still a problem it's still a problem your honor because being asked to be removed from the case does not negate all the information that you still have about the clients he can't walk that information out at the same time he has an attorney client privilege both of them the solution in this case is pretty simple williamson comes forward he says i have a loyalty to this person i have a loyalty to that person they could have taken him off jones's case and given and let him remain with arthur britt he's not going to read he's not going to testify at all against tanks and i'm sorry tyson jones does not represent is not going to testify against archigram in this case the problem is that arthur britt had a prior relationship with william soem and when you talk about it happening it did not actually happen immediately either this happened over course of about a month or so mr britt went to the police on the twentieth of january he was interviewed the first of february mr sounded opposition to get removed from this case until the twenty second of february so there is a period of time in there and again that's the problem with these per se conflicts of interest as this court has found what you're looking for in the record are things that are often shown by omission these complex show up in very subtle ways and if it should not be put in a position where they're sitting there wondering why is my attorney not cross examining why is my attorney not using all this information online that would help my case because of the subtle nature of these conflicts and a per se conflict of interest we are not required to prove actual prejudice instead is an automatic reversal counsel can you clarify something for me i know that on march sixteenth of two thousand and five that amended agreed order was entered with respect to the d t case in the t r case and that was after the jury had been selected they held the case over for a week so yes after that date he still represented him on both cases and what i find most interesting about that hearing your honor is the fact that mr jones was removed from the courtroom before this even happen tyson jones that one of the reasons the trial court dismissed this i'm sorry that the same news dismissed this was because they said well he couldn't race before tyson jones very clearly stated in his affidavit he had no inkling that any of this was happening during his trial he complained after his trial in a crime promotion that he did not feel like william sounded a proper job of teaching our brett that he didn't know why he had no idea what was happening and again all of this could have been negated by having everybody in the the record contains no evidence that shows the winfield knew about his term or the mess are so his awareness of second stage has to be taken as true and here tyson jones has to show two things that william sound simultaneously represented jones and brett and that he did not sign a waiver after full admonished months of the conflict in court the record shows simultaneous representation jones's transcript show the dates that sun was appointed to represent him and the dates that he appeared on his behalf in the courtroom and i tash this petition we have documentaries in the court showing that some simultaneously represented arthur brett we have sons motion to the court which is tested he represents both britain jones and has a conflict of representing bot so you're saying there's nothing of value about a would come from the seating of the state there's nothing at this point your honor that the state could show to refute the finding that there is a per se conflict of interest in this case pro per se conflict of interest we need to show contemporary contemporaneous representation which the post convention petition or that supporting affidavits clearly show and they are taken as true at this stage the other thing that's required obviously there are discussions going on because when he when he signed it when he finally files of a motion saying that i have a conflict with these people he clearly says arthur bridge is testifying against tyson jones something happened in those three weeks some conversations occurred and so that is not the conversation here the other thing your honor a lot of this could be cured by something that we do not have in this record and that's a waiver and a conversation about the conflict in open court there is are no transcripts there's nothing in here that shows that my client tyson jones was aware of this conflict and waived it and in this situation we have proof of an unwavering per se conflict in the record this court has the authority to then found that there was no person what you're saying that that would be an error just a matter of law as a matter of law given the transcripts here given the docket entries here we know the william sound represented both of these two men at the same time we know that he had contemporaneous representation of both of these people and the only thing the cures that conflict is not in our record the only thing we cures this conflict is  written a signed waiver and it and admonitions to my client on the record and that did not occur so at this point there is nothing that the state could put on at an evidentiary hearing that would refute that we have a per se conflict and it is on weight and i would point out this is a two thousand and five conviction i'm here today on a timely filed two thousand and eight post addiction petition this is his first post conviction don't let tyson jones wait any longer to have a fair trial with an input to counsel and i would just before i step down i want to note this court's jurisprudence on per se conflicts has been very clear in the past in your past few cases there is no de minimus rule simultaneous pretrial representation without a waiver creates a per se conflict of interest and so there was one other thing i want to make sure it was accurate march seventh of two thousand and five which i believe was the day that jury was selected your client's case the police were interviewing britt regarding is potential testimony against your client is that right your honor i did hear it i think i need to correct you on according to my timeline ok and i'm sorry because i did not i don't have the sites and we know that's there i know that's fine i have that he gives his recorded statement on march seventh right and on march ninth the jury is selected now was the jury selected on march seventh in a germ until march and i know the jury is selected on the ninth and adjourned till the sixteenth ok thank you but it is not until march sixteenth that that the great order is signed to a point the conflict counsel for brett and get some completely off all of his distinguishing factor actually and then also the next stage is for the timeline of the warrant was issued a warrant was issued for what was then the key witness against defendant christopher fields but fields when fields failed to sixteen is that the jury was selected on the seventh oh my i don't see continuous does and still march nine when it was continued for a week because fields in the here and then unlike in this case and murphy counsel never withdrew or tried to withdraw once there was any notice of any potential conflict also we look at as the cases are  instructing us whether or what what council's involvement in the witnesses case was at the time that he was representing defendant and here we have only three such instances of involvement  and withdraw and let me ask you this do you agree that the rule is if there is contemporaneous representation there is a per se conflict yes how do we not have that here person so you're saying i'm just can't be pro forma just because technically there is a back injury out there that says you're present both make it is that what we have in this case even if we were to go down that path we don't know we only have those three instances of  what what according to the petition and it's attachments which we take it as true at this stage of course we only have three instances of so representing britain two of them were directed at withdrawing from the case and i have to point out that the motion for appointment of counsel other than the public defender said that counsel had been appointed to represent britain he didn't say that he had been actively representing it and i  on february ninth and after that really didn't reappear until december seventh when the public defender was appointed and he wasn't named as a potential witness again until march seven defender well done separately set in two thousand by then stone appears at the hearing on that motion which is granted on march second and the only other instance that any of the attachments to the position show that someone was involved in british representation while he also represented the defendant was this conversation which postcondition counsel describes in his affidavit six years later where commitments to be drawn from the request to no longer represent brit that some knowledge had been gained that there was some discussion some information that had been transmitted that would let the attorney know hey i've got a conflict it was but it was for he said i got it here it's an attachment to the when i saw him says i was appointed to represent britain i was also pointed to represent but he moved for appointment of counsel other than the public tender not necessarily sayings like you know all of us have been involved in the public defender's office in representing this potential state witness point counsel other than a public defender some was not saying that he himself had any particular special knowledge so he was saying i'm currently went to represent brit and there are people in my office that represent brit so none of us can represent create because he's going to be potentially a witness in this case there's nothing to say that so on alone was the counsel for ford depend i mean somebody had to file that motion and so some was the one who filed it he said i was appointed and then after that many different assistant public defenders represented him and in fact on october thirty first it was the kit is shows that the case was called for jury trial case so there was no contemporaneous representation the only contemporaries representation possibly was maybe this this failure to respond to nation he was as you know what did you do when you found out about this conversation he said i went and talked to the lawyer he didn't say talk to you so on he also  let me ask you discount so if we were to determine that there was contemporaneous representation as testers here is asking about what would be the benefit of reminding for third stage hearing i guess the state's position would be that that would be the purpose of a third stage hearing to determine whether there was contemporaneous representation and we're saying that there was not we only have these three instances there are questions raised because of what brit said in his testimony at trial because counsel sones representation in his motion only said i was appointed to represent writ and to record the docket sheets in britts case show that it was the public defender's office that was appointed and that many different public defenders this is in public defenders represented grit and none of that occurred while nail this down if i can it's my understanding of him as well him's argument that once that has been established that there has been contemporaneous representation it can be simply a matter of the docket sheet showing shown your opponent represent britain and there are not having been any subsequent conversations between the two of them that evidence of contemporaneous representation is sufficient along to bar reversal and from the state side he's saying we have to delve into the extent of the representation to know whether or not there was any prejudice there's prejudice come into it and is that the value of a and what the value of the third stage would be it gets into whether or not the representation contemplated by the per se rule really happened here i mean what does representation get in the semantics of that but for  minor hearing and another assistant public defender goes in are all of those people is that representation that is that sufficient to trigger the present conflict rule you know what is the extent it's and here we don't we don't know what the extent is because we only have three instances two of them were directed and that's something else that comes up in this case that was not at issue in fields and dobson and murphy counsel trying to withdraw and then later on he represents defendants but counsel how can you say that those questions exist when we know that sound represented the defendant at his trial so it seems to me all this discussion about various assistant public defenders appearing really is there just the primrose path so to speak i mean we know he represented him we know that he he appeared well on i'm not  sure saying your honor because at the time that he did appear in court on grits behalf that was months before the pennants case even started so there was no contemporaneous representation of that was song representing britt at th never represented britt in the case those are traffic cases he said that the it was there were other other attorneys who represented britain in that case and it was march second when  t r eight four seven three the order the amended agreed order to appoint up different counsel was entered on march sixteenth you told me that on march seventh the jury was selected in mr jones's case  nature of their rights at stake and the spirit behind this wall that it's not too much to expect that lawyers will do a conflict check and we will just have this per se bright line rule so that we don't have to delve into let's define representation and let's define what do you have to do before it's actually considered representation isn't that the whole purpose we should define what is representation and we should also take into account that motion and he's out of case what i mean and it's and we have to remember too that this case of course is on the second stage post conviction review it's not decided after thursday at the entry hearing is argue that there is no substantially and that if the court has any question should we ban or the i'd just like to begin by answering a question that posing counsel asked what was defense counsel supposed to do he was supposed to give undivided loyalty to tyson jones that was the purpose of this trial for tyson jones to have a trial with the undivided loyalty of counsel for him to know that the person sitting next to him is going to vigorously cross examine all the witnesses against him that that person was completely and totally on his side there seems to be some opposing counsel said that cases say that we look at counsel's involvement in defendants cases but as i pointed out in my reply brief there are no cases it's stanford and then a miss rule that if you just represent him a little bit it's not a per se conflict of interest what the trial court found here with that the public defender's office was relieved from representing brett on this felony case on march second and on his dui case on march ninth and while there may have been a interest the public defender's office acted promptly to resolve that conflict but acting promptly to resolve the conflict isn't the test here there was contemporaneous representation and even once you've pointed a new counsel for brett there's still prejudice to my client base and jones and i would like to just remind the support of its words and dobson they pretty quiet privilege continues even after formal representation in the fact that a lawyer no longer represented the witness to time that it in its trial did not allow him to elicit privileged information obtained during his prior record representation of the witness whether such information existed or would have been useful to the defense is irrelevant because such questions concern whether the conflict resulted in prejudice and as we have created previously explained prejudice is beyond the scope of the per se conflict rule i'm not here arguing actual conflict that's in my brief but i am argue today my the per se conflict of interest to show per se conflict of interest again and tempering is representation without a waiver and that has been clearly shown in this record so do we need to go back and define what contemporaneous representation means contemporaneous representation that we have found her present in my client and he represented a state  the court counsel one that's enough the documentary shows that he said that he did represent him but he was appointed on his case but again what happens in the courtroom isn't the problem we know  on and he was appointed for tyson i'm sorry i was under for britain opponent appointed for jones and we also in his motion say he was appointed on both of these cases that he had a conflict and that he needed to he removed that conflict the problem again had they take him off my client's case we wouldn't be here today tyson jones would have had a good point is counsel