Docket No. 105368.



### IN THE SUPREME COURT OF THE STA TE OF IL LINOIS

THE PEOPLE OF

THE STATE

OF I LL INO IS, Appellee, v. JUAN C. HERNAN

DEZ, Ap pellant.

Opinion filed September 18, 2008.

JUSTICE BURKE d elive red the j udgmen t of the c ourt, with opinion. Chief Justice Fitzger

ald and Just

ices Fr eeman, T homas, Kilbride, Garman, and Karmeier concur red in the judgment and opinion.

OPINION

In this case , we must de termine w

hether a criminal de fense attorney labors under a per se conflict of interest when he or she also repres ents the alleged victim of defendant’s offe nse, b ut where the attorney has hadno contact with the alleged victim fo r sever al y ears. The circuit court of

Cook County and the appellate c ourt found that

no per se conflic t e xisted. Nos. 1–04–2776 , 1–06–205 2 cons. (unpublished order under Supreme Court Rule 23). For the rea sons t ha tfollow, w e rever se the de cisions of the cour ts below, r

everse def endan t’s convi ction , and r emand this matt er for p roceed ings consistent with this decision.-2- BACKGROUND In 1992, defendant, Juan Hernandez, was arrested on federal and state drug charges. The

narcotics in defendant’s possession were confiscated. Defend ant serv ed 30 month s at Oxford Federal Prison Camp and 3 month s at Shawnee Correctional Cent er. While in cu st od y, defendant met Richard Mar tine z and R

icar do Dia z. Followin g their

releas e from pr

ison, the t hree re mained in contact

. In August of 1999, defendant was approached by Jaime Cepeda. Cepeda claimed defendant ow ed hi s “superior” $50,000 for the narcotics confiscated i n 1992, and that he was sent to collect on the debt. In August, Cepeda w ent to defendant’s home on at least four occasions and threatened to kill defendant and his family if defenda

nt didnot pay the mone

y ow ed. Cepeda also went to defendant’s workpla ce and th reatened him. In Septembe

r of 1999, Cepeda k

idnapped defenda nt and hel d him for three weeks. Dur

ing that ti me, defendant was locked in the basement at Cepeda’s house, handcuffed, and repeatedly beaten. On September

28, 1999, Cepeda, armed with a gun, took defendant back to defendant’s home and told defendant’s wife this would b e the las t time she would see defendant if he did not come upwithth e m on ey. Ce pe da ag ai n t hr ea te ne d t o k il l d ef en da nt ’s fa mi ly. Cepeda and his two associates took defendant back to Cepeda’s ho use. When they arrive d at Cepeda’s home, police officers wer e waiting outside. The police had responded to a report of a bound and gagged man standing in the street in front of Cepeda’s home. Seeing the police, the four men exited Cepeda’s car and ran toward Cepeda’s home. Cepeda ran toward the back of the home. A s he d id so, he discarde d a bag containing two loaded handg uns. The bag was recovered by the police and Cepeda was arrested for unla wful use of a weapon. D uring the same time frame, defendant and Diaz came under investigation by t

he Drug Enforce ment Admi n istration (DEA) and Illin ois State Polic e for dr ug traf ficking . Martine z had ag reed to become a confidential informan t an d was instr ucted to c ontact both defendant and D iaz to

purchase coca ine. Mart inez initial ly made contact with Diaz, who told him de fendant w anted to d

eal directly withMartinez. Defendant contacted Martinez on February 10, 2000.-3- Becau se of defe

ndant’ s enco unters wi

th Cepeda , defend ant told Martinez he wante d Cepeda killed. I n furth era nce of th

is plot, defendant met with Martinez and his “partner,” an undercover

special agent with the Illinois State P olice, on February 14. At that time, defendant describ ed Ceped a to them, showed them the location of Cepeda’s house, and described Cepeda’ s car. Defend ant agr eed to reduce the pric e on their

future drug purchases by

$1,000 if Martinez killed Cepeda. It was ar

ranged tha

t d efenda nt would se

ll cocain e to Martinez on Febr

uary 23. Defe ndant and

Martinez s p oke several times between February

14 and Feb ru ary 23 about the sa le, but due to a disag reemen t about ce rtain de tails of the purchase, the February 23 transaction never took place. T he investigation of defendant was placed on hold until May 1, 2000, when defendant

again contacted

Martinez a

bout selling drug s. At that time and in subsequent conversations, defendant renewed the discussion regar

ding the “hit” on Cepeda. Based on the conversations betweenMartinez and defendant after May 1, the State’s Attorney obtained an order for a confidential over hear. On Ma y 11, defen dant wascaptured on tape h iring Ma rtinez to kill Cepeda in exchange for a reduc ed price on the purchase of cocaine

. Defe ndant was arrested that same day . On May 31, def endant was indictedand charged with, inter alia , two counts of solicitation of murder for hire. In 2003, defendant retained John DeLe on to represent him on the above charges. Unbeknownst to defenda nt, D eLe on had pr

eviously been retained by Ce

peda to represent him in connection with the September

1999 unlawful useof a weapon charge . DeLeon continued to repres ent Ce peda t hrough January 16, 2001, when a bond forfeiture warrant was issued against Cepeda for his failure to appear in court. Ap pa re nt ly, Cepeda had fled the country prior to January 16, 2001, and has not returned. Although De Leon has had no co ntact wit

h Cepeda since before January

16, 2001, he continues to be the attorney of record for Cepeda. In defendant’s c ase, Cepeda’s name appeared on the State’s list

as a potential witness. DeLeon and Ma rvin Bloom, DeLeo n’s associa te who wa s also involved in defendant’s representation, as wellas the assistant State’s Attorney p rosecuting defendant’s case , were all aware that DeL

eon represented

both defendant and Cepeda.-4- However, neither defendant nor the circuit court was a dvised of the dual representation. Foll ow ing a bench trial, defendant was found g uilty of solicitation to commit murder for hire. While defendant’s direct ap pe al was pendi ng, he filed

a postc onvic tion petition, alleging, inter alia , that DeLeon’s dual representation, of which defendant wa s previous l y unaware, constituted a per se conflic t of inter est that denied him effectiveassistance of counsel. Attached to defendant’s pe tition was DeLeon’s affida

vit, in which DeLeon admitted repre senting Cepeda. DeLeon averred: “I

still cons ider ed my self to be his [Cepeda ’s] attorne y, for if he was arrested on that warr ant [bond forfeiture], as my appearance was still on file, I would still be h is attorney.” D eLeon further averred that, to his knowledge , neither he nor the prosecutor brought his “prior and active representation of Jaime Cepeda during my repr esen tatio n of Ju an He

rnan dez” to the attention of the court or defenda nt. The circuit

court conducted

an evidentiary

hearing on defendant’s postconviction petition. Marvin Bloom testified that, a t so me point during defenda

nt’s cas e, he lea

rned De Leon also represented

Cepeda. Bloom never told defendant about the dual represe ntation and admitted h

e never consider ed wheth er it cre ated a c onflict. John DeLeon testified that he re presentedCepeda in two different

cases. When C epeda failed to appear in court in 2001 and the bond f orfei ture warrant was issued, DeL eon attempted to locate Cepeda, butcould not. DeLeon stated that Cepeda ’s case remained pending on the court’scall v ia the bond forfeiture. When questioned on direct examination as to whether he still considered himself to be Cepeda’s attorney as of the present time, DeL eon resp onded, “ Yes. I

f he is apprehended, I

will be representing him.” DeLeon reitera ted that he

never told defendant he represented Cepeda , nor was he aware of anyone e lse doing so. On cross-examination, DeLeon testified he ha d not spoken to, nor seen, Cepeda since before January 2001. DeLeon confirmed tha t, at
somepoint during def

endant’ s tria

l, he and the assistant State’s Attorney discussed the fact he represented Cepe da. The as sistant State’s A ttorney then inqui

red of D eLe on as foll ows:-5- “Q. And the reason y ou n ever told him [defendant]–at least what you told me–wasbecause you didn’t feel ther

e was a confli ct of inte

rest; is th at corr

ect? A. I didn’t think it was important to the case at the time. Q. And you felt that

there was really

–you didn’t think that there wa s a confl

ict of inte rest? A. Well, I–I don’ t want to make a legal determination on whether or not the

re was a conflic t. All I

can tell y

ou is I didn’t thin

k there w as a prob lem. Q. No, my qu est ion to you, sir, is *** you told me that you did no t be lieve tha

t there w as any

conflic t of inter

est; isn’t that correct? A. That’ s corre ct. Q. And tha

t’s why you didn’t tell him; corr

ect? A. It just never came up in the conversation. I felt that my representationof Jaime Cepada [ sic ] was separate and

apart; that whatever conversations that I had with Jaime were betweenme and Jaime. He was a client. I owed a l oya lty t o him, so I didn’t reveal any conversations.” Upon further re-cross-examination, DeLeon state d that, while he was notpresently g oing to court on Cepeda’s behalf, he was sti ll Cepeda’s lawyer a nd was “active right now” on his behalf. On additional redirect examination, DeLeon t esti fied further

co nc er ni ng hi s b el ie f t ha t h e w as st il l C ep ed a’ s a tt or ne y:

“Q. Mr. DeLeon, so it is clear, during any of that per iod of time inclu ding the

tim e th at you were

defending Mr. Hern ande z, if y ou got a

call that Mr . Cep ada [ sic ] had been arrested on that warrant [bond forfeiture], what did y ou consider would be y our positio n with res pect toMr. Cepada [ sic ]? A. That I was his lawy

er. Q. And would

you have an obligat ion *** to g o to court for Mr. Cepada [ sic ] had he been arrested? A. I am sure Judge Fox would have made sure I was there. And, of course, I would ha ve been there.-6- Q. And at that time

if he wish

ed or–and if y ou wis hed , you could withdraw. But up until that point, you were sti ll his lawyer a nd still responsible for his case. A. Yes.” Following the eviden ti ary hea ring, the circuit court denied d efendant’s postconviction petition, finding there was no ongoi n g relation ship b etween

DeLeon and Ce

peda for the last f

ive years, DeLeon had had no substantial contact with Cepeda, and Cepeda had notbeen called as a witnessat defe ndant’s t rial. Based o n these f

acts, the trial court

concluded there was no per se conflict. It further found

no actual c onflic t exi sted and concluded defendant had rec eived “a very g ood defense.” The appellate court consolidated defendant’s postconviction appeal with his dir

ect appe al and af

firme d, wi th one justice diss entin g. In c onnectio n with defendant’s postconviction challenge, the majority

noted tha t, while Cepeda was named as a witness, he was

never called to testify ag ainst defendant. Moreover, DeL eon had not

seen n or spoken to Cepeda in five years. Further, DeL eon’ s ap pearance

was still on file only because he could not withdr aw i n Cepeda’s absence. Based on these facts, the appellate cour t concluded that DeLeon neve

r assume d the sta

tus of attorney f

or a prosecution witness. Accordingly , the re was no per se conflic t. The ap pellate court furthe r found that, because defendant had not pointed to any i n stance where he received less than dilige nt representation from DeLeon, there wa s no actua l conflic t of inter

est. Nos. 1–04–27 76, 1–06–2052 cons. (unpublished order under Supreme Court Rule 23). Justice Wolfson dissente d, finding that a per se conf

lict e xisted . We thereafter granted defendant’s petition for leave to appeal. 210 Ill. 2d R. 315.

ANA LYSIS

Conflict o f Int

erest An aly sis A criminal

defenda nt’s si xth a mendment right to effective assis tance of cou nsel includes the right to conflict-free re presentation. Peoplev. Morales , 209 I ll . 2d 340, 345 (2004). In determining whether a defendant received eff

ective assistance of counsel based on-7- an alleged conflic t of interest, we first resolve whether counsel laboredunder a per se conflic t. A per se conflict is one in which

“ ‘facts about

a defense attorney ’s status *** engender, by themselves , a disabling conflict.’ (Emphasis in original.)” Morales , 209 Ill. 2d at 346, quot ing People v. Spreitzer , 123 Ill. 2d 1, 14 (1 988). When a defendant’s attorney

has a tie to a person or entity that would benefit from an unfavorable verdict for the defendant, a per se conflic t arises. Peoplev. Janes , 168 Ill. 2d 382, 387 (1995). “ ‘[I]f counsel, unknown to the acc used a nd wit hout his k nowle dge able as sent, is in a duplicitous position where his full talents–as a v igor ous advoc ate having the sing le aim

of acquittal by all mea

ns fair and honorable–are hobbled or fettered or restraine d b y c ommitments t o others’ [citation],” effec ti ve assistance o f counsel is lacking. People v. Stoval , 40 Ill. 2d 109, 112 (1968). W e explained the justification underlying the per se rule i n Spreitzer

. First, we noted that counsel’s knowledg e that a re sult favora ble to his other client or association would inevitably conflict withdefenda

nt’s inter est “ might ‘subliminally’ affe ct counsel’s performance

in way s [that are] difficult to detect and demonstrate.” Sp reitzer , 1 23 Ill. 2d at 16. Also, we noted the possibility that counsel’s confl ict wo uld s ubjec t him to “ ‘l ater ch arge s that his representationwas not completely fa ithful.’ [Citations.]” Spreitzer , 123 Ill. 2d at 17. If a per se conflic t exists, defendant is not required to show that counsel’s “ ‘ actual pe rformance was in any way af fected by the exist ence 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 conflic t exists. Stoval , 40 I ll. 2d at 113. Unless a defend an t waives his right to conflict-free counsel, a per se conflic t is grounds for automatic reversal. Morales , 209 Ill. 2d at 345. We have identified three

situations where a per se conflic t exists: (1) when def

ense cou nsel has a prior or contemporaneous association withthe victim, the prosecution, or an entity a ssisting the prosecution ( Spreitzer , 123 Ill. 2d at 14 ; see als o People v. Lawson , 163 Ill. 2d 187, 210-11 (1994) (c o llecting cases)); (2) when def ense counsel contempo raneous ly repres ents a pr

osecuti on wi tness (see People v. Moore , 189 Ill. 2d 521, 538 (2000) ; People v. Thomas , 131 Ill. 2d-8- 104, 111 (1989)); and (3) when d efe nse counsel was a former p rosecutor

who had been personally involved in the prosecution o f the defendant (see Lawson , 163 I ll. 2d at 217-18). Where the record shows that the facts are undisputed, the question of whether a per se conflict exists is a legal question we review de novo

. Morales , 209 I ll. 2d at 345. If a per se conflic t does not e xist, a defe

ndant may

still estab lish

a violation of his right to effective assistance of counsel by showing

an actual conflict of interest that adversely affected his couns e l’s performance. Moral es , 209 Ill. 2d at 348-49. To show an actual conflict of intere st, a def

endant mu st

point to “ ‘some specific defect in his counsel’s strategy , tactics, or decision making attributa ble to [a] conflict.’ ” Morales , 209 Ill. 2d at 349, quoting Spreitzer , 123 I ll. 2d at 18 . In th

is situatio n, mere “

‘[s]pecula

tive alle gations an d conclusory

statements ar e not sufficient to establish that an actual conflict of interest affected counsel’s perf ormance.’ ” Morales , 209 Ill. 2d a t 349 , quot ing People v. Williams , 139 Ill. 2d 1, 12 (1990).

Per Se Conflict Rule At the outset, the St ate asks us to abandon the per se conflict analy sis and apply only an actua l-confli ct analy sis. The Sta te conced es that itsrequest

implicate s stare dec isis

. The doctrine of stare dec isis “ ‘ “expre sses the policy of the courts to stand by

preced ents a nd not to disturb settled points.” ’ [Citat ions. ]” People v. Colon , 225 Ill. 2d 125, 145 (2007). When a question has been delibe ra te ly e xamined and decided, it should be considered

settled andclosed to

further argume nt. Colon , 225 Ill. 2d at 1 46. However, stare dec isis is not an “inexorable command.” Colon , 225 Ill. 2d at 146. “If it is clear a court has made a mistake, it will not decline to correct it, even if the mistake has been reasserted and acquiesced

in for many y

ears. [Citation.] That said, this court will not depart f

rom prec edent me

rely because it might have decided otherwis e if

the question were a new one. [Citation.] A s we re cently

reitera ted, any departu re from stare dec isis must be ‘ “specially

justified .” ’ [Citati on.] Thus, p rio r decisions sho uld n ot be overruled absent ‘good cause ’ or-9- ‘compelling reasons .’ [Citation .] In g eneral , a settled rule of law that does not contravene a statute or constitution a l principle should be followed

unless doing so is li

kely to result in serious detriment

prejudicial to public interests. [Citation.] Good cause to de part fr om stare dec isis also exists when governing decisions ar e unworkable or badly reasoned.” Colon , 225 Ill. 2d at 146. To support its argument

that we should abandonthe per se rule, i n favor of an actual-conflict analy sis only, the State arg ues that the per se ruleis at odds wit

h United Sta

tes Supre me Court pr

eceden t, in particular Mickens v. Taylor , 535 U.S. 162, 152 L. Ed . 2d 291, 12 2 S. Ct. 1237 (2001). We disagree. In Mickens , the defendant’s attorney represented the victim at the time the defendant murdered the victim . Counsel d

id not disclose the dual representation to the defendant or the trial cou

rt. The Court held that where th e trial c ourt fail s to inquir e into a potential conflict, of which it knew or should h ave known, a defe ndant must

establish that the conf lict adve rsely affected his attorney’s per

formance. Mickens , 535 U.S. at 174, 152 L. Ed. 2d at 305 -06, 12 2 S. Ct. at 1245. The State’s reliance on Mickens is misplaced. First, the only question before the Mickens Court dealt with the trial cou rt’s fai lure to inq

uire into a potential conflict. Mickens , 535 U.S. at 174, 152 L. Ed. 2d at 305-06, 122 S. Ct. at 1245. The question before the Court w as not whe ther a c onflict e

xist ed, be it an actual conflict or otherwise. Second, the facts surrounding the attorney ’s representation of the victim in Mickens are distinguishable. There, counsel did not believe he had any c ontinuing obligation or duty to his for mer client, the victim of the defendant’s crime. The same is not true her e. DeLeon expressly testified at the postconviction he ari ng that h e was still Cepeda’s attorne

y a nd was still obliga

ted to ac t on Ceped a’s beha lf should Cepeda be arrested

on the bond warrant. DeLeon acknowledged

his loyalty

to Cepeda

such that he would not

reveal any conversations he had had with Cepeda. Las tl y, and most imp ortantly , the State ignores pertinent remarks made by the Court which demonstrat e th at our per se rule does not conflict with Mickens

. The Mickens Court rec ognized e xceptions to the gener al rule th at a def

endant mu st

show prejudic e, holding

that a-10- defendant n eed not show prejudice when he is denied assistance of counsel entirely

or during a critic al stag e, or in

“circumstances of that magnitude,” because theverdict is so li ke ly u nr el ia bl e t ha t a ca se -b ycase determination is unnecessary

. Mickens , 535 U.S. at 166, 152 L. Ed. 2d at 301, 122 S. Ct. at 124 1. As one example of when a “cir cumst ance [] of that ma gnitude” may arise, the Court identified the situation where defense counsel actively represents conflicting interest s. Mickens , 535 U.S. at 166, 152 L. Ed. 2d at 301, 122 S. Ct. at 1241. Acco rding t o the Mickens Court, in th is context, “Both Sullivan itself [citation] and Holloway [cit ation ] str essed the hi gh probabil ity of preju dice ar

isi ng from multiple concurrent representation, and the di fficulty of proving that prejudice.” (Emphasi s in ori gi nal.) Mickens , 535 U.S. at 175, 152 L. Ed. 2d at 306, 122 S. Ct. at 1246. Although the exception in Mickens is not directly on point, the rationale is equally a pplicable t o our case. Where, as here, an attorne y r eprese nts both the defendant and the alleged victim of defend a nt’s crime, there is a high probability of prejudice to a defendant and an equally high degree of diffic

ulty of proving that prejudice. Thus, we conclude, contrary to the State’s a rgument, Mickens does not dictate that this court should abandon our per se conflict rule. Rather than being at odds with Mickens , our per se rule comportswith the e

xception e

xpressed by th at Court. The State also argues that the per se conf lic t rule is un

workabl e butdo es no t e xp la in wh y. We can discernno reaso n why such a rule is unworkable. If counse

l represents the defenda

nt and the victim of the defendant’s alleged

conduct, then that ends the matter. There is a per se conflict. Application of the per se rule is not unworkable but rather straightforward and simple. The State fur

ther ar gues tha t dispensing with

the per se rule will reduce complexity and result in more uniform application of the law. Again, we disagree. I

f we abandon the per se conflict ru le, a fac tspecific analysis would have to be undertakenin eachand every case. This is notle ss complex. Likewise, a c ase-by -case a naly sis would create more diversity than uniformity . Thus, contra ryto the State’s argume nt, aband onin g t he per se rule will not reduce complexity or result in more uniform application of the law.-11- Las tl y, the State argues that the per se rule provides an incentive for defense counsel to conceal possible conflicts, knowing that if they do not disclo se a confli ct and the ir client is convic ted, a new trial wi ll be granted based

on the con

flict. We rejected this reasoning in Coslet , where we observed: “One could eve

n conjec ture tha

t a defe ndant and hi s lawyer could knowingly a

nd collusively enter int o such an arrangement

in an effort to obtain a

reversal in the event of a conviction. This is a risk

that this c ourt is pre

pared to take, however, in order to assure that every p erson is a ssured of

the right to effective assistance of counsel at his trial.” People v. Coslet , 67 Ill. 2d 127, 136 (1977). We conclude that the rationale underly ing the per se conflict rule, espousedabove, remains valid, particularly where, as here, couns el simulta neou sly represents both the alleged perpe trator and the alleged victim of the crime being prosec uted. The State has not established good cause o r co mpelling

reason f or this court to dep art from stare decisis

. Ac co rd in gl y, we reject the State’s request to abandon the per
se conflict of interest rule.

Application of the Per Se Conflict Rule Defendant

contends that the appellate cour t erred in concluding th at DeLeon’s repr

esentation of Cepeda, the alleged victim, a t th e sametime he represented defendant did not co nstitu te a per se c onflict. Defend ant, on the other ha

nd, arg ues this c ase is a compelling example of a per se conflict and prejudice must be presumed. The State contends there was no per se conflict despite DeLeon’ s dual representationbased on the unique facts of this case: (1) DeLeon

was not act ively

repres enting C epeda a

nd had not

spoken to h

im in ye ars; (2) DeLeon wa s unable to withdra w as Cep eda’s counsel because of Cepeda’s absence, and (3) the Stateassured DeLeon tha t Cepeda would not te stify . These f acts, the State cla ims, take t

his case out of the per se conflic t categ ory . The State directs o ur atten tion to Morales , which the appellate court relied on.-12- In Morales , def

ense coun sel r

epre sented Jorg e Her

nandez, th e defendant’s superior in a drug -distr ibution organization, on federal drug charg es at the

sametime he represented the defendant in his trial for the murde

r of Her nandez’scourier , solicita

tion to commit

murder for hire, and conspiracy

to commit murder. Morales , 20 9 Ill. 2d at 344. The State identifiedHernandez as a witness against defendant on its witness list. Prior to trial, the prosecutor advised the court, in the defendant’s pre se nce, of the potential conflict of interest. Morales , 209 Ill. 2d at 344. Ultimately, Hernandez did not testify for the State. Following his conviction, on dir ect appe al, the defendant argued that counsel’s contemporaneous representation crea ted a conf lict of interest that deprived him of effective assistance of counsel. Morales , 209 Ill. 2d at 345. We agreed that the situation at issue pote

ntially fell within the per
se conflict category

of c ases. Morales , 209 Ill. 2d at 346. However,

we concluded that, be cause H ernandez was neve r called as a witness in the defendant’s case, “defe nse counsel never assumed the status of attorney for

a prosecution witness.” Morales , 209 I ll. 2d at 34 6. We held that the contemporaneous representation did not re sult in

a per
se conflict and, the refore , counsel did not render ineffective assistance. Morales , 209 Ill. 2d at 346. Morales does not control the outcome in the cas e at bar . While it is certainly true

Cepeda could havebeen a witness for the State, the distinctive feature here, which the appellate court failed to recognize, is that Ce peda w as also the alleged victim of defendant’s c rime. To make matters worse, the facts underly ing Cepeda’s arr

est and DeLeon’s ultimate representation of him arose in relation to Cepeda’s kidnapping of defendant and returning defendant

to Cepeda’s home after he had takendefendant back to his own home to further threaten de fe nd an t’ s f am il y. In essence , defend ant was Ce peda’s “ victim” in connection with the unlawful use of a weapo n ca se. This fact underscores the conf

licting s ituation pr

esent w hen DeLeon represented both defendant and Cepeda

. Becau se Cepeda w as th e alleged victim of defendant’s offe nse, this case is more akin to Stoval . In Stoval , the defendant was convictedof burglary

and theft of jewelry . On appeal, he argued that he was denied effective assistance of counsel bec ause the law firm representing him had represented and cont in ued to represent the-13- jewe lry store he was convicted of burglar izing, and had als o represented

the jewelry store

owner, individually. Stoval , 40 Ill. 2d at 112. Agreeing, we held:

“ ‘The cir cumstanc es here

are such that an att orney ca nnot properl y ser ve two maste

rs. *** [H]is[defenda

nt’s] right to counsel under

the Constitution is more than a formality, and to all ow him to be

repres ented by

an attor ney with su c h

c onflicting interest s a s existed here without hi s kn owled geable

consent is little better than allowing him no lawyer at all. *** This situation is too fraught with the dangers of prejudice, prejudice which the cold rec ord might notindicate, that the mer e exist ence of the conf

lict is

su fficient to constitute a violation of [defendant’s] ri ght s whether or not it in f

act influ ences t

he a ttorney or the outcome of the case.’ ” Stoval , 40 Ill. 2d at 112-13, quoting United States v. Myers , 253 F. Supp. 55, 57 (E.D. Pa. 1966). Although therewas no evidence s howing c ounsel did not condu ct a diligent and proper def

ense, we concluded that public policy disfavors dual representation be cause of the possible conflict of interest. Stoval , 40 Ill. 2d at 113. We f

urth er concluded that the defendant did not effec ti vely

wai ve his right to the conflict even though he had been advisedof the dua

l repre sentation . We reve rsed the convicti o n a nd remanded for further proceedings. Stoval , 40 I ll. 2d at 11 4. See als o Coslet , 67 Ill . 2d at 134

(findin g a Stoval conflict where counsel simultane ousl y repre sented both the defendant in her trial for volun ta ry manslaughter of her husband and the administrator of the husband’s estate; the confl ict ra ised the p ossibility that the e state would be enriched if the defendant was c onvicted). The State attempts to distinguish Stoval , pointing out that, unlike the situation in Stov al , DeLeon did no t have an active r elationsh ip with Cepe da. We ar

e unpers uaded by

the State ’s argument. First, the very na

ture of a per se confli ct rule precludes inquiry into the spec ific facts of a ca se. DeL eon’s status as Cepeda’s attorney itself dictates application of the per se rule. See Morales , 209 Ill. 2d at 346 (“ ‘facts about a defens e atto rney ’s status *** engender, by themselves , a disabling conflict.’ ” (Emphases added a nd in o rigina

l. )) See also People v. Kester , 66 Ill. 2d 162, 168 (1977) (fact that defendant’s atto rn ey

previous ly s erved a s prosecutor ag ainst-14- defendant in same case necessitated application of per se rule; inquiry into n ature and extent of his involvement as prosecutor was not necessary or desir able); Lawson , 163 Ill. 2d at 21 6 (fact of actual commitmentto anothe

r, not deg ree or e xtent of tha

t c om mitment, dictatedapplication of per se rule). A case-by -case determination of the facts, a s the State

urges, would exting

uishthe per se conflic t rule

en ti re ly. Moreov er, we have construed broadly the per se conflic t rule when counsel represents both the victim of defendant’s offe nse and the defendant himself. Ingeneral, we have not required representation of the victi m t o b e “ co nt em po ra ne ou s” or “a ct iv e. ” O rd in ar il y, conflict arises from counsel’s “association,” “rela tionship,” “comm i tment,” “professional connection,” or “some tie” with the victim, a party, or

the prosecu

tion, which is either “

prior or curren t” or “previous or current.” See People v. Hardin , 217 Ill. 2d 289, 301 (2005); Morales , 209 Ill. 2d at 345-46; People v. Graham , 206 Ill. 2d 465, 472 (2003); People v. Miller , 199 I ll. 2d 541, 5 45 (2002) ; People

v. Moore , 189 I

ll. 2d 521, 5 38-39 (20 00); Lawson , 163 Ill. 2d at 211; Peoplev. Kitchen , 159 Ill. 2d 1, 29 (1994); Spreitzer , 123 Ill. 2d at 15. We decline to impose an “active” requirement upon this category of per se conflic ts, as the State urg es. We hav e clear ly s ta ted in t he past that a pr ior rela tionship fa

lls w ithi n this category . As such, no active repres entation

is necessary

and, thus, we need not inquire in to the specific facts of the nature and extent of the re presentation t o determine whether the per se rule app lies. Based on the foregoing, we find that to ensure that a defendant’s right to effective assistance of co unse l is given effect, the per se conflict rule applies wheneve

r an atto rney repres ents a

defendant and the alleged victim of

the defe ndant’s c rime, re gardle ss of whether the attorney’srelation ship with th e all egedvictim is active or not, and withoutinquiring into the specific facts concer ning th e nature and extent of counsel’s representation of the victim. A cc or di ng ly, because DeLeon repres ented bot

h defendant

and the alleged victim, Cepeda,

we hold that th

e lower c ourts er

red in findin g no per se conflict of interest

. Since def

endant was not advised of the conflict and, therefore, did not waive it, automatic reversal is req uired. Morales , 209 Ill. 2d at 345.-15- As an aside, we feel compelled to express our conce rn about the conduct of all the attorney s involved. Three attorney s–the prosecutor, DeLeon, and Bloom–failed to advise the c ourt of the dual representation. There is no jus tificat ion for this failure. DeLeon, according to hi s test imon y at the ev ident iary heari ng, determined on his own that no conflict of interest existed in his representation of bothdefendant and Cepeda. N o authority is cited by the State, nor does it attempt to explain why defense counsel a nd the prosecutor, on their own, or in c ollabora tion, belie ved it per missible f

or them to determine whether a per se conflict existed. We caution attorne ys in the future an d remind them of their obligation to bring to the trial court’s attention

any facts or circumstances that may

create a conflict of interest . Bringing the s ituation to the trial court’sattention

would have provided the court with an oppo rtuni ty to explain the circumstances and ramification s to defe ndant. Defendant could have made an informed decision about the situationand the conf lict could have been waived had def end ant so desired. Defendant was not affo rded th is op po rt un it y in th e c as e a t b ar be ca us e t he at to rn eys never a dvised defendant

or the tri al court

of the fa cts. Becau se we reverse, we have thoroug hly review ed the evidence

a nd are con

vinced it was suff icient to s upport a f

indin g of g uil t b eyond a reasonable doubt. Under these circumstanc es, defen dan t does not face

the risk o f double

jeopardy a

nd may be re

tried. Lawson , 163 Ill. 2d at 218.

CONCLUSION The circuit andappellate courts erred in concluding that no per se conflict of interest arose in this case. C ounsel re present ed both Cepeda, the alleged victim of de fendant ’s offe

nse, and defenda nt. Accord ingly a per se conflic t existed. T he judg ments of th

e circu it and appellate courts are

reversed. Defendant’s conviction is reversed. The cause is remanded to the circu it cou rt for furth er proc eedin gs consistent with this decision.

Reversed and remanded

.