## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

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

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. COWARNA L . PATTERSON, Defe ndant-Appe llant.

District & N o. Second District Docke t No. 2-12-0359

Filed September 26, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The second- stag e dismiss al of defe ndant’s postconviction petition was upheld over her contentions that the public defe nder who repr esente d her
at trial had a conflict of interest based on his a cce ptance of a position as

an as sistant State’s Att orney and that the publ ic defender who assumed the repr esentation of defe ndant might h ave been beholden to his prede cessor and failed to zealously repr esent defe ndant, since defe ndant failed to alleg e any specific fac ts showing an actua l conflict of interest on the part of either public defe nder and the rec ord sug g ested an agree ment that defe ndant had wa ived any possible conflict.

Dec ision Under Review Appea l f rom the Circuit Court of Winnebag o County
, No. 02-CF- 2328; the Hon. Steven G. V ecc hio, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Peter A. Carusona and Mark D. Fisher
, both of State Appellate Def ender ’s Off

ice, of Ottawa, f or appe llant.

J oseph P

. Br

uscato, S tate’s Attorney
, of R ockfor d (L awr ence M. Ba uer and J ay Paul Hoffma

nn, both of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for

the People.

Panel J USTI CE HUDSON deliver ed the judgment of the c ourt, with opinion.
J ustices Schostok and B irkett conc urre d in the judgme nt and opinion.

OP INION

¶ 1 De fe ndant, Cowarna L

. Patterso n , ap p ea l s t h e s ec o n d -s t age d i s m i s s al o f h er postconviction petition. She contends that a third-stag e evide ntiary hearing is nece ssary to resolve issues sur

roundingher tria l attorney ’s conf lict of interest. We af

firm. ¶ 2 Def

endant was char g ed with first-degree murder (720 I L CS 5/9-1(a) (2) (West 2002)) for the stabbing death of Ty rone Carthell

. S h e was repr esente d at trial by assistant public d ef en der Michae l Combs. The jury found defe ndant guilty

. At a status hearing p ri o r t o sentenc ing, assistant public defende r Edwa rd L ight told the court that Combs had rece ntly become an assistant State’s Attorney

. L ight said that he intended to discuss the case with Combs befor e sentenc ing. At the sentenc ing hearing, L ight confirme d that he had revie wed

some matters with Combs. One of the trial prosec utors, Wendy L arson, mentioned that she

was c urre ntly

Combs’ supervisor. ¶ 3 The trial court sentenc ed defe ndant to the minimum of 20 y ea rs ’ i m p ri s o n m en tand denied her posttrial motion. On direc t a ppeal, this c ourt aff

irmed. People v. Patterson
, No. 2-03-0916 ( 2005) (unpublished orde r under Supreme Court Rule 23) ( Patterson I

). ¶ 4 Def

endant filed a pro se postconviction petition, alleg ing that C o mb s l abore d under a conflict of interest during the trial becau se he had acc epted a position with the State’s Attorney ’s office. The trial court summ arily dismiss ed the petition, but this court rever sed and rema nded for second- stag e postconviction proce eding s. People v. Patterson
, No. 2-06- 0668 (2008) (unpublished order under Supreme Court Rule 23) ( Patterson II

). We held that, while Combs’ acc eptanc e of a position with the State’s Attorney ’s office did not cre ate a per

seconflict, de fenda

nt might be a

ble to show an a ctual conf lict. Id. at 5. ¶ 5 Following rema nd, the trial court appointed counsel, who filed an amende d petition. The State moved to dismiss it, and the trial court g rante d the motion. Def endant timely appea ls. ¶ 6 Def

endant contends that the cause should be rema nded for a third-stag e 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 tr ial, he failed

to prese nt evidenc e or otherwise zealously advocate on defe ndant’s behalf ; and (3) whether L ight was so beholden to Combs for advice at sentenc ing that he failed t o i n v es t i g ate or consider including in his posttrial motion a possible claim of Combs’ ineffe ctive assistance

. De fendant asser

ts that it is impossibl e to discern whether Combs had a per se or an actu al conflict of interest, and whether L ight was able to adequately repr esent her at posttrial
proce eding s, without decidingthese fa ctual issues. ¶ 7 In response , the State argues the following

. The rec ord shows that the parties and the trial court knew well before trial of C ombs’ intent to join t he State’s Attorney ’s office and that defe ndant waived any potential conflict. In any event, Patterson II repr esents the law of the

case that t h er e was not a per se conflict of interest and that decision is consistent with
prec edent that only a prior or contempora neous association with the prosec ution cre ates a per

se conflict. Whil e Patterson II h el d o p en the possibili ty that defe ndant could establish an actua l conflict of interest, to do so she neede d to demonstrate some specific shortcoming in Combs’ repr esentation attributable to the conflict. Howeve r, she failed to even alleg e, much less p ro v ide evidentiar

y support for, any such shortcoming

. Fur ther, L ight could not have been ineffe ctive at the sentenc ing hearing, beca use defe ndant re ce i ved the minimum
sentenc e. Finally
, as defendant did n o t all eg e any specific fac ts showing an actual conflict of intere st by

Combs, L ight c ould not have been ineffec tive for failing to include the issue in the posttrial motion. W e agree with the State. ¶ 8 Under the Post-Convi ct i o n He ar i n g Act (the Act) (725 I L CS 5/122-1 et seq. (West 2006)), a convicted defe ndant may collater ally attack her conviction and sentenc e based on violations of her constitutional rig hts. People v. Erickson
, 183 I ll. 2d 213, 222 (1998). Procee dings under the Act are divided into three stag es. People v. Gaultney
, 174 I ll. 2d 410, 418 (1996). During the first stag e, the trial court independe ntly examines the petition within 90 day s afte r fi l i n g. 725 I L CS 5/122-2.1(a) (West 2006). I f the petition is frivolous or patently without merit, it will be summarily dismiss ed. 725 I L CS 5/122-2.1(a) (2) (West 2006). ¶ 9 I f the petition advanc es to the second stag e, counsel may be appointed for the defe ndant. 725 I L CS 5/122-4 (West 2006). Counsel may then file an amende d petition, which the State may answe r or move to dismiss

. 725 I L CS 5/122-5 (West 2006). To survive dismiss al at the second stag e, a petition must, when liberally construed in light of the re co rd
, “ ‘m ake a substantial showing of a constitutional v i o l ati on.’ ” People v. Buchanan
, 403 I ll. App. 3d 600, 602 (2010) (quoting People v. Hall
, 217 I ll. 2d 324, 334 (2005))

. A postc o nviction peti t i o n er is not entitled to an evidentiar y hearing as a matter of rig ht. Id. The petition’s alleg ations must be supported by the rec ord or by acc ompanying aff idavits. Id. Nonspec ific

an d nonfac tual asser

tions that amount to mere conclusions are insufficient to require a hearing. People v . Coleman , 183 I ll. 2d 366, 381 (1998). ¶ 10 Def

endant’ s petition alleg ed that trial counsel labore d under a co n fl i ct o f i n t erest. A defe ndant’s six th amendment right t o the effec tive assistance of counsel includes the right
to conflict-f

ree repr esentation. People v. Morales
, 209 I ll. 2d 340, 345 (2004). In deciding whether a defe ndant rec eived ineffe ctive assistance of counsel based on an alleg ed conflict of interest, we first resolve whether counsel labore d under a per se conflict. A per se conflict

-3-is one where “ ‘ “f ac t s about a defe nse attorney ’s status *** eng ender
, by themselv es , a disabling conflict.” ’ (Emphasis in orig inal.)” People v. Hernande z , 231 I ll. 2d 134, 142 (2008) (quot i n g Moral es , 209 I ll. 2d at 346, quoting People v. Spreitzer
, 123 I ll. 2d 1, 14 (1988))

. When a defe ndant’s attorney has a tie to a person or entity that would benef it from

a ver dict unfavor able to the defendant, a per se conflict arises. People v . Janes , 168 I ll. 2d 382, 387 (1995). “ ‘[I ]f counsel, u n kn o wn t o the acc used and without his knowledg eable assent, is in a duplicitous posi tion where his f ull tale nts–as a vigor ous advoca te having the single aim of acquittal by all means fair and honorable–are hobbled or fetter ed or restra ined by commitments to others,’ ” eff ective assistance of counsel is lacking

. People v. Stoval
, 40 I ll. 2d 109, 111-1 2 (1 9 6 8 ) (quoting Porter v. United States
, 298 F.2d 461, 463 (5th Cir. 1962)). ¶ 11 The Spreitzer court explained the justification underly ing the p er s e ru l e, noting that counsel’s knowledg e that a result favor able to his other client or association would inevitably

con fl i ct wi th a defe ndant’s interest “mig ht ‘subliminally ’ aff ect counsel’s perf

ormanc e in
way s [t hat are ] d i ff

i cu l t to detec t and demonstrate.” Spreitzer
, 123 I ll. 2d at 16. The court further noted the possibili ty that counsel’s conflict woul d subject him or her to “ ‘later char g es that his repr esentation was not completely faithful.’ [Citations.] ” Id. at 17. ¶ 12 I f a per se confli ct ex i s t s , a defe ndant is not require d to show that counsel’s “ ‘a ctual perf ormanc e was in any way aff ecte d by the exis tence of the conflict.’ ” Morales
, 209 I ll. 2d
at 345 (quoting Spreitzer
, 123 I ll. 2d at 15). In other words, a defe nd an t i s not require d to show actua l prejudice when a per se conflic t exis ts. Stoval
, 40 I ll. 2d at 113. Unless a defe ndant waives his rig ht to conflict-f ree counsel, a per se conflict is g rounds for automatic

reve rsal. Morales , 209 I ll. 2d at 345. ¶ 13 The supreme court has identified three situations wher e a per se conflict exis ts: (1) when defe nse counsel has a prior or contempora neous association with the victim, the prosec ution,

or an entity assisting t h e p ro secution; (2) when defe nse counsel contempora neously
repr esents a prosec ution witness; and (3) when defe nse counsel is a former prosec utor who

was persona lly involved in the prosec ution of the defe ndant. Hernande z , 231 I ll. 2d at 143- 44. ¶ 14 I f a per se conflict does not ex ist, a defe ndant ca n still establish a violation of his rig ht
to eff ective assistance of counsel by showing an actual conflict that adver sel y af fe ct ed his counsel’s perf

ormanc e. Morales
, 209 I ll. 2d at 348-49. To do so, a defe ndant must point to “ ‘some spe cific de fec t in his counsel’s strategy , tactics, or de cision makingattributable to [a] conflict.’ ” Id. at 349 (quoting Spreitzer
, 123 I ll. 2d at 18). In this situation, mere “[s] peculative alleg ations and conclusory statements are not sufficie nt to establish that an actua l conflict of interest aff ecte d counsel’s perf

ormanc e. ” I

d

. ( c itin g People v. W

illiams
, 139 I ll. 2d 1, 12 (1990)). ¶ 15 In Patterson II
, we held that defe ndant’s alleg ations that Combs had agree d to move to the State’s Attorney ’s o ff i ce some time in the future did not cre ate a per se conflict. Patterson II

, slip order at 4-5. The law-of -the-c ase doctrine preve nts relitig ation of an issue alre ady decide d in the s ame case. People v

. Tenner
, 206 I ll. 2d 381, 395 (2002); People v. Patterson , 154 I ll. 2d 414, 468 (1992). We a g ree with the State that Patterson II is the law

-4-of the c ase on this point.

¶ 16 Def

endant does not cite any new fac ts or chang es in the law to sug g est that Patterson II

was wr ong ly

decide d. Def

endant sug g ests only that People v . W ilson , 348 I ll. App. 3d 360 (2004), which we cited in Patterson II
, is fac tually distinguishable beca use the attorney there
rep re sented the defe ndant only in postconviction proce eding s. Howeve r, a depar ture from Patterson II is not just i fi ed m er ely beca use one of the case s we cited has differ ent fac ts. Indeed, our dispositi on was consistent with prec edent that only a prior or contempora neous association with the prosec ution cre ates a per se conflict. See Hernande z , 231 I ll. 2d at 143- 44. ¶ 17 Thus, there is no need f or a he aringon defe ndant’s first proposed issue. Assuming that Combs knew befor e trial that he would be joining th e S t at e’s Attorney ’s office
, this knowledg e would not cre ate a per se conflict. Indeed, the St at e p o i nts out that the rec ord shows that both parties knew beforeh an d t hat Combs would be joining the prosec utor’s office

. At a hearing on Marc h 26, 2003, the court assig ned the case to J udg e Robert Coplan for trial. The court set a status he aring for J udg e Coplan to, inter alia
, “addr ess the issue of waiver of any potential conflict on the part of [C ombs] continuing to r epre sent” defe ndant. J udg e Coplan entered a

n order showingthat the hea

ringtook place, a lthough the or der did

n o t s p ecifically mention that defe ndant waived any potential conflict. Moreover, although the rec ord contains no transcript of that hearing, the clea r infere nce is that the parties and the
court we re a

war e that Combs had t aken a position wit h the State’s Attorne y ’s offic e. Prior
to sent encing
, L ight and the prosec utor agree d that defe ndant had waived the possible conflict. ¶ 18 Def

endant’ s second proposed issue for a hearing is “whe ther, i f [ C o m bs] applied to and/or knew prior to trial that he would be joining the prosec utor’s office
, he failed to prese nt evidenc e o r otherwise zealously advocate on defe ndant’s behalf,” in other words, whether Combs had an actua l conflict of interest. Although Patterson II fore closed the issue of a per

se conflict, we held t hat defendant was not forec losed “fr om attempting to prove an ac tual conflict of interest during the trial.” Patterson II
, slip order at 5

. Ho we v er , in seeking a

rema nd for a hearing on that issue, defe ndant place s the ca rt befor e the hor se. ¶ 19 To show an actua l conflict of interest, a defe ndant must point to some specific defe ct in counsel’s strategy

or decisionmaking attributable to suc h a conflict. Morales
, 209 I ll. 2d at 349. Moreove r, to survive dismiss al at the second stag e, a postconviction petition mu s t alleg e specific fac ts that make a substantial show ing of a constitutional violation. Buchanan , 403 I ll. App. 3d at 602. The alleg ations mu s t b e s upported by the rec ord or acc ompanying aff idavits. Id. Vague asser tion s t h at amount to nothing more than conclusions are insufficient. Coleman , 183 I ll. 2d at 381. ¶ 20 Her e, leaving aside any waiver of the alleg ed conflict, the amende d petition alleg ed only
g ener ally that defe ndant was denied the effec t i v e assistance of counsel beca use Combs decide d befor e trial to acc ept a position with the State’s Attorney ’s office

. Def endant alleg ed

no specific defe cts in Combs’ perfor mance and, nee dless to say , did not provide affidavits

or citations to the rec ord showing specific instances of defe ctive perf ormanc e. A third-stag e postconviction hearing is intended to resolve fac tual issues arising from the petition and the

-5-State’s response

. It is not intended as a discovery tool to allow a defe ndant to marshal fac ts

that should have be en included in a n orig inal or ame nded petition. ¶ 21 Def

endant’ s final propo s ed issue is whether L ight, who repr esente d defe ndant at posttrial and sentenc ing proce eding s, “fe lt so beholden to Mr. Combs for advice at sentenc ing that he failed to investigate or consider including in his post-trial motion a possible claim of Combs’ ineffe ctive assistance or conflict of interest.” Initially
, we note that this prec ise issue was not included in the ame nded petition. The pe tition allege d that L ight wa s ineffe ctive in that he “re lied upon information and advice of Attorney Combs at the sentenc ing stag e here in.” As the State points out, L ight cannot be deeme d ineffe ctive at the sentenc ing stag e, as defe ndant

rec eived the minimum sentenc e. On appea l, defe ndant rephr ases the issue as whether L ight

was so beholden to Combs fo r ad v ice at sentenc ing that he neg lected to alleg e Combs’ ineffe ctiveness in the posttrial motion. ¶ 22 I t is undisputed that L ight’ s association with Combs cre ated no per s e co n fl i ct

. T o

es t ab lish an actua l conflict, defe ndant had to alleg e some specific defe ct by L i gh t i n prepa ring and arguing the posttrial motion. As defe ndant has ide n ti f ied no specific defe ct that could support a finding of an actua l conflict, or of ineffe ctive as s i s tance g ener ally
, as to 1 Combs, L igh t could not have been ineffe ctive for failing to include such an issue in the posttrial motion. ¶ 23 As the amende d petition did not contain specific alleg ations showing that either Combs or L ight wa s ineffe ctive, the tria l court did not err by dismiss ing it. An e videntiary hearing would not r esolve any fac tual issues, but would mere ly g ive defe ndant another opportunity to develop a fac tual basis for her c laims, which should have be en included in the a mended petition. ¶ 24 Acc ording ly , the judg ment of the c ircuit court of Winnebag o County

is affirme d.

¶ 25 Affir

med.

T he pet it ion al le ged tha t Com bs was ine ff

ect ive for fa il ing to cha ll enge f or cau se a j uro r 1 who ind ic at ed tha t he cou ld not devote his ful l at te nti on to the cas e bec aus e of work re spo nsi bil it ie s, butdef end antdoe s no t d evelop th is is sue on appe al

.
-6-