People v. Fields

ILLINOIS OFFICIAL REPORTS

Supreme Court

People v. Fields, 2012 IL 112438

Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ALBERT

Court: L. FIELDS, Appellee.

Docket No. 112438

Filed September 20, 2012

Modified Upon Denial

of Rehearing November 26, 2012

Held Defense counsel did not have a per se conflict of interest when the State,

(Note: This syllabus in attempting to show propensity for sex crimes, called as a witness a

constitutes no part of young female who had been the victim of a different sex offense by the

the opinion of the court defendant and counsel had been her guardian ad litem in an unrelated

but has been prepared earlier matter.

by the Reporter of

Decisions for the

convenience of the

reader.)

Decision Under Appeal from the Appellate Court for the Third District; heard in that

Review court on appeal from the Circuit Court of Henry County, the Hon. Larry

S. Vandersnick, Judge, presiding.

Judgment Appellate court judgment reversed.

Cause remanded.

Counsel on Lisa Madigan, Attorney General, of Springfield, and Terence Patton,

Appeal State’s Attorney, of Cambridge (Michael A. Scodro, Solicitor General,

and Michael M. Glick and Michael R. Blankenheim, Assistant Attorneys

General, of Chicago, and Patrick Delfino, Stephen E. Norris and Patrick

D. Daly, of the Office of the State’s Attorneys Appellate Prosecutor, of

Mt. Vernon, of counsel), for the People.

Michael J. Pelletier, State Appellate Defender, Peter A. Carusona, Deputy

Defender, and Glenn Sroka, Assistant Appellate Defender, of the Office

of the State Appellate Defender, of Ottawa, for appellee.

Justices JUSTICE THOMAS delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Freeman, Garman, Karmeier, Burke,

and Theis concurred in the judgment and opinion

OPINION

¶1 Following a jury trial, defendant, Albert L. Fields, was convicted of two counts of

predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2006)), three

counts of criminal sexual assault (720 ILCS 5/12-13(a)(1), (a)(3) (West 2006)), and two

counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(b) (West 2006)). Defendant

was sentenced to 36 years’ imprisonment. Defendant appealed, contending that he had been

denied the effective assistance of counsel because his trial attorney labored under a per se

conflict of interest. A divided appellate court agreed, reversing defendant’s convictions and

sentence, and remanding for a new trial. 409 Ill. App. 3d 398.

¶2 This court allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26,

2010). We now reverse the judgment of the appellate court.

¶3 BACKGROUND

¶4 Defendant was charged by information in January 2007. Specifically, the information

charged predatory criminal sexual assault in that between 1999 and October 27, 2004,

defendant, who was age 17 or older, on two separate occasions placed his penis in the mouth

of his stepdaughter, K.N.J., when she was younger than 13. The information charged

criminal sexual assault in that between 1999 and February 2006, defendant, on two separate

occasions, placed his penis in the mouth of K.N.J. by the use of force or threat of force. The

information charged two counts of criminal sexual assault occurring between 1999 and

February 2006, in that defendant, on two separate occasions, placed his penis in K.N.J.’s

mouth when she was younger than 18 and he was her stepfather. Finally, the information

charged that between 2001 and February 2006, defendant committed aggravated criminal

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sexual abuse in that defendant fondled K.N.J.’s breasts and vagina, and made her fondle his

penis, for his sexual arousal and gratification, when K.N.J. was younger than 18 and he was

her stepfather. The public defender of Henry County was appointed to represent defendant.

¶5 Prior to trial, the State moved to introduce other-crimes evidence pursuant to section 115-

7.3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-7.3 (West 2006)). The State

sought to introduce evidence that defendant had sexually abused another child, in order to

show that defendant had a propensity to commit sex crimes. The State’s section 115-7.3

motion alleged that, in 2007, defendant had been convicted in the circuit court of Rock Island

County of the aggravated criminal sexual abuse of C.S., a nine-year-old girl. The trial court

granted the State’s motion, ruling that the State could present testimony about the prior

crime, along with a certified copy of defendant’s conviction for that crime.

¶6 Thereafter, defendant filed a complaint against his attorney with the Illinois Attorney

Registration and Disciplinary Commission. The trial court allowed defendant’s attorney to

withdraw from the case, and appointed Edward Woller to represent defendant. Woller had

represented defendant before, including representing defendant in the Rock Island County

case.

¶7 Defendant’s jury trial commenced on June 5, 2008. At defendant’s trial, a certified copy

of defendant’s conviction of aggravated criminal sexual abuse against C.S. in the Rock Island

County case was admitted into evidence on the issue of defendant’s propensity to commit

the offenses for which he was charged in the instant case.1 In addition, C.S. testified that in

2005, defendant sexually abused her when he was living with her and her mother in Moline,

Illinois. C.S. said that she was nine years old at the time. C.S. testified that one morning,

defendant gave her a book containing pictures of naked girls “showing their private parts,”

and told C.S. to put the book on his weight set in the basement. Defendant then followed

C.S. into the basement. Defendant pulled down his pants, grabbed C.S.’s hand, put C.S.’s

hand on his “wee wee,” and made C.S. rub it until he ejaculated. Defendant also put his hand

down C.S.’s pants and stuck his finger inside her. Defendant then pushed C.S. down on the

ground and told her “to suck his wee wee.” C.S. refused. Defendant told C.S. if she told

anyone, he would beat her and ground her. After defendant had kicked C.S. and her mother

out of the house, C.S. told her mother about the abuse.

¶8 K.N.J., defendant, and several other witnesses also testified at defendant’s trial. At the

conclusion of his jury trial, defendant was convicted on all counts concerning K.N.J. The

trial court denied defendant’s motion for a new trial. After vacating defendant’s three

criminal sexual assault convictions on one-act, one-crime grounds, the trial court imposed

consecutive sentences of 18 years’ imprisonment for each conviction of predatory criminal

sexual assault of a child, and concurrent sentences of six years’ imprisonment for each

1

Defendant’s conviction for the aggravated criminal sexual abuse of C.S. in the Rock Island

County case was reversed on July 20, 2010. People v. Fields, No. 3-07-0305 (2010) (unpublished

order under Supreme Court Rule 23). The appellate court in the Rock Island County case found that

defense counsel labored under a per se conflict of interest because he had previously represented

C.S., the victim in the case, and defendant did not waive the conflict.

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conviction of aggravated criminal sexual abuse.

¶9 Defendant then appealed, arguing that his attorney, Woller, had a per se conflict of

interest because Woller had served as a guardian ad litem for C.S. in a case that ended in

2002 or 2003. Woller had disclosed that fact during pretrial proceedings in the Rock Island

County case, but did not disclose his prior representation of C.S. in the instant case. The

guardian ad litem proceedings were unrelated to either of the criminal cases brought against

defendant. Defendant claimed that the cause should be remanded for a new trial because of

the per se conflict of interest.

¶ 10 A majority of the appellate court agreed. The appellate court, citing this court’s decisions

in People v. Taylor, 237 Ill. 2d 356 (2010), and People v. Hernandez, 231 Ill. 2d 134 (2008),

noted that there are three situations where 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 in the prosecution of the defendant. 409 Ill. App. 3d at

401. The majority held that C.S. was an entity assisting the prosecution, as set forth in the

first situation, so that defense counsel’s prior association with C.S. constituted a per se

conflict of interest. Id. at 402. The appellate court rejected the State’s argument that “entity”

applied only to a municipality, rather than a person. Id. at 403.

¶ 11 The majority also held that even if C.S. was not an “entity” for purposes of finding a per

se conflict of interest, defendant’s conviction nonetheless had to be reversed because C.S.

would benefit from an unfavorable verdict for defendant. 409 Ill. App. 3d at 404. The

majority noted that in Hernandez, 231 Ill. 2d at 142, this court held that 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 conflict of interest arises. 409 Ill. App. 3d at 404.

¶ 12 The majority found that there were three intangible benefits to C.S. that would result

from an unfavorable verdict for the defendant. First, C.S. would benefit from having her

assailant incarcerated. 409 Ill. App. 3d at 405. Second, defendant’s conviction for the same

crime against another young girl would validate C.S.’s own claim of sexual abuse against

defendant. Id. Third, assisting the State in convicting defendant would allow C.S. the

opportunity to help another young girl who had been subjected to the same horrific behavior

that C.S. had to endure. Id. The majority stated that they could not assert with any confidence

that defense counsel’s representation of defendant was not hobbled, fettered, or restrained

by his prior commitments to C.S. Id.

¶ 13 Justice Schmidt dissented. 409 Ill. App. 3d at 406 (Schmidt, J., dissenting). Justice

Schmidt stated that the majority’s finding that C.S. was an entity assisting the prosecution

rendered superfluous the second category of conduct that gave rise to a per se conflict of

interest: where defense counsel contemporaneously represents a prosecution witness. Id.

Under the majority’s holding, any representation that falls under the second category would

necessarily also fall under the first category. Id. Justice Schmidt further stated that the

majority’s holding ignored this court’s precedent, namely, People v. Enoch, 146 Ill. 2d 44

(1991), where this court stated that defense counsel’s prior representation of a State’s witness

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does not establish a per se conflict of interest between defense counsel and a defendant. Id.

at 406-07.

¶ 14 ANALYSIS

¶ 15 The State now appeals, arguing that defense counsel’s past representation of C.S. did not

create a per se conflict of interest. Like the appellate court dissent, the State argues that the

majority’s holding is contrary to a line of cases where our court has held that a per se conflict

of interest exists only if the professional relationship between defense counsel and the

witness is contemporaneous with defense counsel’s representation of the defendant. The

State notes that, in this case, Woller’s representation of C.S. ended in 2002 or 2003, well

before Woller’s representation of defendant in the instant case began in 2007. Consequently,

Woller did not have a contemporaneous conflicting professional commitment to C.S. that

disqualified him from representing defendant.

¶ 16 The State further contends that the majority’s finding that C.S. was an “entity assisting

the prosecution” is contrary to this court’s precedent which establishes that an “entity

assisting the prosecution” encompasses only organizational clients.

¶ 17 Finally, the State argues that the majority’s alternative holding that C.S. was a beneficiary

of defendant’s conviction rests on impermissible speculation. According to the State, under

the appellate court’s general definition of the benefits C.S. allegedly received from

defendant’s conviction, almost all prosecution witnesses would be considered beneficiaries

of a guilty verdict. It is well settled that a criminal defendant’s sixth amendment right to

effective assistance of counsel includes the right to conflict-free representation. Taylor, 237

Ill. 2d at 374. There are two categories of conflict of interest: per se and actual. Id. A per se

conflict of interest exists where certain facts about a defense attorney’s status, by themselves,

engender a disabling conflict. Id. Stated otherwise, a per se conflict arises when a

defendant’s attorney has a tie to a person or entity that would benefit from an unfavorable

verdict for the defendant. Hernandez, 231 Ill. 2d at 142.

¶ 18 As the appellate court stated, this court has found three situations where a per se conflict

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.

Taylor, 237 Ill. 2d at 374; Hernandez, 231 Ill. 2d at 143-44. If a per se conflict is found, a

defendant need not show that the conflict affected the attorney’s actual performance. Taylor,

237 Ill. 2d at 374-75. Unless a defendant waives his right to conflict-free representation, a

per se conflict is automatic grounds for reversal. Taylor, 237 Ill. 2d at 375.

¶ 19 When the record shows that the facts are undisputed, the issue of whether a per se

conflict exists is a legal question that this court reviews de novo. Hernandez, 231 Ill. 2d at

144. Here, the facts concerning Woller’s representation of defendant and C.S. are undisputed.

Accordingly, our review of the appellate court’s decision finding a per se conflict is de novo.

¶ 20 Upon review, we find that the appellate court majority erred in holding that a per se

conflict of interest existed in this case. Illinois supreme court case law has clearly and

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consistently held that, in cases where defense counsel has represented a State’s witness, a per

se conflict of interest will not be held to exist unless the professional relationship between

the attorney and the witness is contemporaneous with defense counsel’s representation of the

defendant.

¶ 21 Thus, in People v. Robinson, 79 Ill. 2d 147, 161 (1979), the court noted that defense

counsel had a conflict of interest because the attorney still had an active attorney client

relationship with a prosecution witness. In so holding, Robinson found that the case before

it was consistent with United States v. Jeffers, 520 F.2d 1256 (7th Cir. 1975), where the court

rejected a claim that defense counsel’s prior representation of a prosecution witness in an

earlier criminal trial constituted a conflict of interest. The Robinson court noted that, in

contrast to the case before it, there was no existing personal relationship between the defense

attorney and the prosecution witness at the time of the defendant’s trial in Jeffers. Robinson,

79 Ill. 2d at 161.

¶ 22 Thereafter, in People v. Free, 112 Ill. 2d 154, 168 (1986), the court again stated that:

“In a situation where defense counsel has represented a State’s witness, a per se

conflict of interest will not be held to exist unless the professional relationship

between the attorney and the witness is contemporaneous with counsel’s

representation of the defendant.”

¶ 23 The assistant public defender representing the defendant in Free had previously

represented a witness who testified adversely to the defendant at a hearing on a motion to

suppress prior to defendant’s trial. The court held that defense counsel did not have a per se

conflict of interest, even though the record did not formally show when defense counsel’s

representation of the witness had ended. The court concluded:

“[I]t would be unreasonable under the circumstances to presume that the assistant

public defender had a continuing professional relationship with [the witness] after

[the witness’s] testimony was suppressed. That [the witness’s] testimony was

suppressed before the defendant’s trial and that [defense counsel] did not undertake

the representation of [defendant] until the post-conviction petition was filed supports

the notion he no longer represented [the witness].” Free, 112 Ill. 2d at 168-69.

¶ 24 As noted, subsequent cases consistently have held that a per se conflict exists where

defense counsel contemporaneously represents a prosecution witness. See Taylor, 237 Ill. 2d

at 374 (one of three situations where per se conflict exists is where defense counsel

contemporaneously represents a prosecution witness); Hernandez, 231 Ill. 2d at 143 (one of

three situations where per se conflict exists is where defense counsel contemporaneously

represents a prosecution witness); People v. Morales, 209 Ill. 2d 340, 346 (2004) (court has

“found a per se conflict when defense counsel contemporaneously represented a prosecution

witness”); People v. Moore, 189 Ill. 2d 521, 538 (2000) (“per se conflict of interest exists

where defense counsel engages in a contemporaneous representation of the defendant and

the State’s witness”); Enoch, 146 Ill. 2d at 52 (where defense counsel has previously

represented a prosecution witness, a per se conflict of interest exists if the professional

relationship between the defense attorney and the witness is contemporaneous with defense

counsel’s representation of the defendant); People v. Thomas, 131 Ill. 2d 104, 111 (1989)

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(where defense counsel has represented a State’s witness, a per se conflict exists if the

professional relationship between defense counsel and the witness is contemporaneous with

counsel’s representation of defendant); People v. Flores, 128 Ill. 2d 66, 83 (1989) (where

defense counsel has represented a prosecution witness, per se conflict of interest exists if the

professional relationship between the defense attorney and the witness is contemporaneous

with counsel’s representation of the defendant).

¶ 25 Notably, in none of the preceding cases did the court hold that a defense counsel’s prior

representation of a prosecution witness constituted a per se conflict of interest. Nor did any

of those decisions find that the prosecution witness was an “entity assisting the prosecution.”

The law is clear. A per se conflict of interest will be found where defense counsel’s

representation of a prosecution witness is contemporaneous with defense counsel’s

representation of the defendant. Here, Woller’s representation of C.S. had ended four to five

years prior to his representation of defendant. Accordingly, Woller’s representation of C.S.

was not contemporaneous with his representation of defendant and did not present a per se

conflict of interest.

¶ 26 The appellate court acknowledged that Woller’s representation of C.S. was not

contemporaneous with his representation of defendant, for purposes of the second situation

where a conflict of interest will be found. Nonetheless, the appellate court majority found

even though Woller’s representation of C.S. was not contemporaneous with his

representation of defendant, a per se conflict of interest existed because C.S. was an “entity

assisting the prosecution,” as set forth in the first situation where a per se conflict of interest

will be found. In contrast to the second situation, the first situation where a per se conflict

of interest will be found includes defense counsel’s prior association, as well as his

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

prosecution.

¶ 27 The appellate court stated that C.S. clearly was “assisting the prosecution” because she

was testifying for the State against the defendant. 409 Ill. App. 3d at 401. Accordingly, the

appellate court addressed whether C.S. could be characterized as an entity, or whether this

court intended that only a municipality, organization or company could qualify as an entity.

¶ 28 In addressing this issue, the appellate court noted that there was no authority expressly

defining the term “entity” in the context of a per se conflict of interest. 409 Ill. App. 3d at

401. Consequently, the appellate court looked to dictionary definitions of the term “entity,”

to ascertain the plain and ordinary meaning of the term. The court noted that both West’s

Legal Thesaurus and Dictionary and Black’s Law Dictionary defined “entity” to include both

an organization and an individual. Id. at 402. The majority therefore concluded that this court

“chose to use the term ‘entity’ in order to incorporate both individuals and organizations.”

Id.

¶ 29 The appellate court erred in so holding. As discussed, this court has always held that a

defense counsel’s representation of a prosecution witness constitutes a per se conflict of

interest when the representation is contemporaneous with defense counsel’s representation

of the defendant, but is not a per se conflict of interest when defense counsel’s representation

of the witness is prior to counsel’s representation of defendant. We again point out that, in

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contrast, the first situation where a per se conflict of interest exists encompasses defense

counsel’s prior or contemporaneous association with the victim, the prosecution or an entity

assisting the prosecution. Given that defense counsel’s prior representation of a prosecution

witness does not constitute a per se conflict of interest, while his prior association with an

entity assisting the prosecution does constitute a per se conflict, a prosecution witness

necessarily cannot also be an “entity assisting the prosecution.” As both the appellate court

dissent and the State asserted, to find that an individual is an entity would render superfluous

the second situation where a per se conflict exists.

¶ 30 Moreover, although the appellate court is correct that this court has never expressly

defined the term “entity,” it was unnecessary to do so because our case law has always

recognized a difference between a person and an entity in the context of per se conflicts of

interest. For example, in People v. Spreitzer, in discussing per se conflicts of interest, the

court noted that “[t]he justification for treating these conflicts as per se has been that the

defense counsel in each case had a tie to a person or entity—either counsel’s client,

employer, or own previous commitments—which would benefit from an unfavorable verdict

for the defendant.” (Emphasis added.) People v. Spreitzer, 123 Ill. 2d 1, 16 (1988). The court

reiterated this distinction in People v. Kitchen, 159 Ill. 2d 1, 29 (1994), citing Spreitzer for

the rule that “a per se conflict of interest exists in instances where defense counsel had an

association with the prosecution or victim, or with a person or entity who would benefit from

the defendant’s prosecution.” (Emphasis added.) One year later, in People v. Janes, 168 Ill.

2d 382, 387 (1995), the court again stated, “[a] per se conflict of interest arises where

defense counsel has a tie to a person or entity which would benefit from an unfavorable

verdict for the defendant.” (Emphasis added.) The distinction between person and entity was

repeated in Moore, when the court observed that “per se conflicts involve situations where

defense counsel has some tie to a person or entity that would benefit from an unfavorable

verdict for the defendant.” (Emphasis added.) Moore, 189 Ill. 2d at 538. As recently as 2008,

the court again stated that a per se conflict arises “[w]hen a defendant’s attorney has a tie to

a person or entity that would benefit from an unfavorable verdict for the defendant.”

(Emphasis added.) Hernandez, 231 Ill. 2d at 142.

¶ 31 In addition, as the State points out, the only case where this court has held that defense

counsel’s representation of an “entity assisting the prosecution” created a per se conflict of

interest involved a defense attorney who simultaneously represented the defendant and also

served as a part-time attorney for the municipality where the defendant was being prosecuted.

See People v. Washington, 101 Ill. 2d 104 (1984). The State notes, as it did in the appellate

court, that in People v. Lawson, the court cited Washington as an example of an entity

assisting the prosecution. See People v. Lawson, 163 Ill. 2d 187, 211 (1994) (“[t]he common

element in these [per se] cases was that the defense counsel was previously or

contemporaneously associated with either the victim (Stoval, Coslet), the prosecution (Fife,

Kester), or an entity assisting the prosecution (Washington)”).

¶ 32 The appellate court majority dismissed the State’s contention that the decisions in

Washington and Lawson demonstrate that the phrase “entity assisting the prosecution” was

intended to encompass only organizational clients. The majority stated that the “supreme

court may have intended to draw the distinction urged by the State, but the simple citation

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to an example does not compel that conclusion.” (Emphasis in original.) 409 Ill. App. 3d at

403.

¶ 33 Although the majority is correct that a “simple citation” may not compel that conclusion,

when considered with all supreme court precedent addressing per se conflicts of interests,

it is clear that such a conclusion is, in fact, compelled. The only supreme court case to find

a per se conflict involving “an entity assisting the prosecution” is a case involving a

municipality. With regard to prosecution witnesses, this court has recognized an entirely

separate situation where a per se conflict of interest exists. In addition, this court has always

distinguished between person and entity in discussing per se conflict cases. Taken together,

there is no doubt that this court intended to draw the distinction urged by the State: that an

entity does not include a person for purposes of per se conflicts of interest. The appellate

court majority erred in holding otherwise.

¶ 34 We also briefly address the majority’s attempts to distinguish the decisions in Enoch and

Flores, where our court held that a per se conflict of interest does not arise from defense

counsel’s prior representation of a State witness. The appellate court found those cases

distinguishable because neither case “dealt with the conflict category at issue in the present

case, specifically, an entity assisting the prosecution.” 409 Ill. App. 3d at 403. Rather, “both

dealt with the conflict category of whether defense counsel contemporaneously represented

a prosecution witness.” (Emphasis in original.) Id. The appellate court also distinguished

Enoch and Flores on the ground that the potential conflicts in those cases were disclosed to

the trial court. Id. at 403-04.

¶ 35 The appellate court’s attempts to distinguish Enoch and Flores are unavailing. It is

because those cases dealt with the conflict category of whether defense counsel

contemporaneously represented a prosecution witness that they are directly on point. Those

cases did not address the category of entity assisting the prosecution because there was no

need to do so. In addition, it was the fact that defense counsel’s representation of the

prosecution witness was prior to his representation of the defendant that eliminated any per

se conflict in that case, not the fact that any potential conflict was disclosed to the trial court.

Enoch and Flores are directly on point. Defense counsel’s prior representation of C.S. in this

case did not create a per se conflict of interest.

¶ 36 Before we turn to the appellate court’s second reason for finding that there was a per se

conflict in this case, we address defendant’s response to the State’s claim that the appellate

court’s holding would render superfluous the situation concerning defense counsel’s

representation of a prosecution witness. Defendant argues that the State has “missed the

forest for the trees” because this court has never stated that there are three mutually exclusive

categories of per se conflicts, nor has this court held that there can never be additional

situations where a per se conflict can be found to exist.

¶ 37 While this court may never have expressly stated that the three situations giving rise to

a per se conflict of interest are distinct, as we discussed supra, it is clear that the nature of

the first and second per se conflict situations necessarily renders them distinct. If an entity

assisting the prosecution includes prosecution witnesses, there would be no need to recognize

the second situation where a per se conflict of interest exists, nor would there be any

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consistency in holding that only defense counsel’s contemporaneous representation of a

prosecution witness constitutes a per se conflict of interest. Further, because this case

involves defense counsel’s representation of a prosecution witness, which is addressed in the

second situation where a per se conflict of interest will be found, there is no need to consider

whether defendant is correct that additional situations might be found where a per se conflict

of interest exists.

¶ 38 We also note that defendant was not left without recourse in this case. If defendant

believed that his attorney’s prior representation of C.S. constituted a conflict of interest,

defendant could have argued that his counsel had an actual conflict of interest. “If a per se

conflict does not exist, a defendant may still establish a violation of his right to effective

assistance of counsel by showing an actual conflict of interest that adversely affected his

counsel’s performance.” Hernandez, 231 Ill. 2d at 144.

¶ 39 We next address the appellate court’s alternate basis for reversing defendant’s conviction

in this case. The appellate court majority held that even if C.S. was not an entity assisting the

prosecution, reversal of defendant’s conviction was still required because C.S. would benefit

from an unfavorable verdict for defendant. As support, the majority cites this court’s

decisions in Hernandez and Janes as holding that, “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

conflict arises.” 409 Ill. App. 3d at 404. As noted, the appellate court found there were three

intangible benefits to C.S. in having defendant convicted of sexually abusing K.N.J. which

gave rise to a per se conflict of interest.

¶ 40 The appellate court is correct that this court has stated, “[w]hen 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 conflict arises.” Hernandez, 231 Ill. 2d at 142 (citing Janes, 168 Ill. 2d

at 387). Contrary to the appellate court’s interpretation, however, that statement does not set

forth an additional, fourth situation where a per se conflict of interest might be found, nor

does it provide an alternate basis for finding a per se conflict of interest. Rather, the

statement describes the justification for the per se rule. After noting that a per se conflict

arises when a defendant’s attorney has a tie to a person or entity that would benefit from an

unfavorable verdict for the defendant, the Hernandez court continued:

“We explained the justification underlying the per se rule in Spreitzer. First, we

noted that counsel’s knowledge that a result favorable to his other client or

association would inevitably conflict with defendant’s interest ‘might “subliminally”

affect counsel’s performance in ways [that are] difficult to detect and demonstrate.’

Spreitzer, 123 Ill. 2d at 16. Also, we noted the possibility that counsel’s conflict

would subject him to ‘ “later charges that his representation was not completely

faithful.” [Citations.]’ Spreitzer, 123 Ill. 2d at 17.” Hernandez, 231 Ill. 2d at 143.

Once the Hernandez court set forth the justification for the per se conflict rule, the court then

identified the three situations where a per se conflict exists.

¶ 41 The appellate court erred in construing the justification for the per se conflict rule as

creating an additional, alternate basis for finding a per se conflict in this case. Pursuant to

long-standing precedent, this court has recognized three situations where a per se conflict of

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interest exists. The facts in this case potentially implicate the second situation because

Woller previously had represented the prosecution witness. However, Woller’s

representation of C.S. had ended three to four years prior to his representation of defendant.

Accordingly, Woller did not contemporaneously represent C.S. and the defendant. There

was, then, no per se conflict in this case, and no basis to reverse defendant’s conviction and

sentence.

¶ 42 CONCLUSION

¶ 43 For all of the foregoing reasons, we reverse the appellate court’s decision. The cause is

remanded to the appellate court for consideration of those issues previously raised but left

unresolved owing to that court’s disposition.

¶ 44 Appellate court judgment reversed.

¶ 45 Cause remanded.

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