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No. 2--03--0550

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

The defendant, Tommy Odell Hardin, also known as Thomas O. Hardin, Jr., appeals from thedismissal of his postconviction petition. A lawyer from the Du Page County public defender's officerepresented him at his trial for aggravated criminal sexual abuse (720 ILCS 5/12--16(d) (West 1996)). The court appointed another lawyer from the Du Page County public defender's office to representthe defendant in the proceedings on his postconviction petition, in which he claimed that he hadreceived ineffective assistance of counsel at trial. The defendant argues that this circumstancetriggered a duty in the trial court, under People v. Banks, 121 Ill. 2d 36 (1987), to investigatewhether his postconviction counsel was acting under a conflict of interest. We read Banks to holdthat, standing alone, the circumstance that one public defender must attack the effectiveness ofanother from the same office is insufficient to trigger a court's duty to investigate whether a conflictexists. The defendant does not suggest that he brought to the court's attention any particularrelationship between his two public defenders that would have triggered the court's duty toinvestigate, nor does he point to any flaw in his postconviction counsel's representation that wouldsuggest an actual conflict of interest. Further, he does not argue that the court erred in finding thathis petition was subject to dismissal. Therefore, we affirm the dismissal of his petition.

The defendant was charged by indictment with five counts of aggravated criminal sexualabuse. The court appointed Jameson Kunz of the Du Page County public defender's office torepresent him. The relationship between the defendant and Kunz was inharmonious. In the two-and-a-fraction years before his trial, the defendant made repeated demands to the court that it replaceKunz. At times, the defendant chose not to cooperate with Kunz. Kunz was instrumental in thecourt's sua sponte decision to hold a fitness hearing regarding the defendant, who was foundtemporarily unfit to stand trial. The defendant let the court know that he was not pleased with thisoutcome.

Upon his restoration to fitness, the defendant stood trial before a jury, which found him guiltyon all counts in the indictment. The court sentenced him to concurrent 22-year terms ofimprisonment, a sentence in the Class X range because of the defendant's prior convictions. Thedefendant appealed his convictions and sentences to this court, and we affirmed them. People v.Hardin, No. 2--00--0441 (2001) (unpublished order under Supreme Court Rule 23).

The defendant then filed a petition under the Post-Conviction Hearing Act (Act) (725 ILCS5/122--1 et seq. (West 2002)), alleging that Kunz had been ineffective because he had failed to useimpeachment evidence against the State's witnesses and had breached client confidentiality. Heaccompanied the petition with a request that the court appoint counsel other than the public defender. The court immediately appointed the Du Page County public defender's office to represent thedefendant, without first considering whether it should dismiss the petition under section 122--2.1 ofthe Act (725 ILCS 5/122--2.1 (West 2002)). Ricky Holman of the public defender's officerepresented the defendant and drafted an amended petition, which fleshed out the ineffectiveassistance of counsel claims in the original petition and added additional claims. Holman informedthe court that the defendant was adamant that he wanted counsel other than the public defender, butthe court denied the request without questioning Holman about the basis for the defendant'sobjections. After the State moved to dismiss the petition, the defendant filed a written request foroutside counsel, citing Holman's "conflict of interest" and poor communication with the defendant. He asserted that he had received only one call and one letter from Holman. The court suggested thatthe defendant "apparently just want[ed] more communication" but Holman responded, "I think I'llput it on the record, Judge. *** [E]very time I communicate with him he does not want the publicdefender to represent him. *** [T]hat's definitely from my reading the transcripts of the trial aspectas well." The court did not respond.

The court ultimately dismissed the defendant's petition on the State's motion. In his appealof the dismissal, the defendant contends only that the court erred by failing to inquire into whetherHolman was acting under a conflict of interest when he had to attack the effectiveness of a fellowlawyer from the Du Page County public defender's office.

The question of whether the trial court was required to make an inquiry is one of procedure.Questions of whether a court has followed the applicable procedure are questions of law; therefore,our review is de novo. See Woods v. Cole, 181 Ill. 2d 512, 516 (1998).

Some combinations of relationships among lawyers and clients are, by themselves, enough tocreate disqualifying conflicts of interest. For example, a conflict exists when a lawyer represents boththe victim of a crime and the defendant accused of committing that crime. People v. Stoval, 40 Ill.2d 109, 112 (1968). Illinois authority describes such circumstances as ones of per se conflict ofinterest. Representation by counsel acting under a conflict violates the defendant's right to counsel,unless the defendant has knowingly waived the right to conflict-free counsel. Stoval, 40 Ill. 2d at111-14. At one time, the Illinois Supreme Court held that, when one member of a public defender'soffice must attack the effectiveness of another member of that office, a per se conflict exists. SeePeople v. Smith, 37 Ill. 2d 622, 623-24 (1967). However, in Banks, the supreme court overruled itsdecision in Smith, holding that, in such circumstances, one may generally assume that a publicdefender can overcome any sense of allegiance to fellow defenders and can give his or her full loyaltyto the client. Banks, 121 Ill. 2d at 43. Thus, "where an assistant public defender asserts that anotherassistant from the same office has rendered ineffective assistance, a case-by-case inquiry should beconducted to determine whether any circumstances peculiar to the case indicate the presence of anactual conflict of interest." Banks, 121 Ill. 2d at 44.

The defendant asserts that this holding requires the trial court to make a case-by-case inquiryat the time it appoints a public defender to undertake a representation where he or she must attackanother public defender's effectiveness; the State asserts that this holding allows the reviewing courtto make this inquiry. We agree with the State. Although the holding quoted, taken in isolation, isambiguous, the dispositions of the cases reviewed in Banks show that the Banks court did not requirean inquiry by the trial court.

In Banks, the court considered the cases of three defendants. Each defendant had originallybeen represented by a lawyer from the local public defender's office. Two of the defendants had filedpostconviction petitions alleging ineffective assistance of trial counsel, and the third had filed aposttrial motion raising the same claim. In each case, the defendant was represented in the newproceedings by a public defender other than the one who had represented him at trial. Banks, 121Ill. 2d at 38-39. In no case did the Banks court suggest that the trial courts conducted an inquiry intowhether the new attorney was laboring under a conflict. If the trial courts had failed to conduct therequired inquiries, we would expect the supreme court to have overturned the lower courts' decisionsor else to have conducted a conventional harmless-error analysis. Instead, the supreme court itselfreviewed the records for any signs of actual conflicts of interest: "Here, defendants have notindicated, and our examination of the record does not reveal, circumstances which suggest that actualconflicts of interest were present." Banks, 121 Ill. 2d at 44.

The procedure that the court followed in Banks is consistent with the framework that thecourt adopted in People v. Spreitzer, 123 Ill. 2d 1 (1988), which it decided four months after Banks. The purported conflict in Spreitzer was less direct than that in Banks. A Du Page County assistantpublic defender represented Spreitzer at his murder trial. At the time of the trial, the Du Page Countypublic defender was a former Du Page County assistant State's Attorney who had participated incharging Spreitzer. Spreitzer, 123 Ill. 2d at 12. Spreitzer claimed that, because one would expectthe assistant public defender to be loyal to the public defender, a per se conflict of interest existed. The court deemed that the purported division of loyalties was too slight to create a per se conflict. Spreitzer, 123 Ill. 2d at 22. The court therefore derived its analytic framework from United StatesSupreme Court cases that considered allegations of conflict in circumstances that fell short of creatingper se conflicts. The typical situation of this kind is one in which one lawyer jointly represents twoor more defendants in one case. Spreitzer, 123 Ill. 2d at 17-21.

According to Spreitzer's reading of the Supreme Court cases, the mere fact of jointrepresentation does not impose upon a trial court a duty to inquire into whether a conflict exists. Spreitzer, 123 Ill. 2d at 18. Such a duty arises only if the defendant reports the possible conflict tothe court at an "early stage" in the proceedings. Spreitzer, 123 Ill. 2d at 18. If he or she makes sucha report, the court must either appoint separate counsel or investigate to decide whether the risk ofconflict is too remote to require separate counsel. Failure of the court to take such steps is groundsfor reversal. Spreitzer, 123 Ill. 2d at 18, citing Holloway v. Arkansas, 435 U.S. 475, 484, 55 L. Ed.2d 426, 434, 98 S. Ct. 1173, 1178 (1978). If the defendant does not bring the possible conflict tothe court's attention early, the conviction should be reversed only if the defendant can show that " 'anactual conflict of interest adversely affected' counsel's performance." Spreitzer, 123 Ill. 2d at 18,quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 64 L. Ed. 2d 333, 348, 100 S. Ct. 1708, 1719 (1980). To show this, the defendant must point to some specific defect in his or her counsel's performancethat is attributable to the conflict. This rule does not require the defendant to prove that the defectcontributed to his or her conviction, however. Spreitzer, 123 Ill. 2d at 18-19.

When we combine the teachings of Banks and Spreitzer, we gain a nearly complete outlineof how both trial courts and reviewing courts are to address the possibility of conflict of interest whenone public defender must attack the effectiveness of another. Banks shows that that form ofrepresentation by itself is not enough to trigger a duty in the trial court to investigate. If it were, theBanks court would have had to discuss the trial courts' actions at the time they appointed the publicdefenders' offices, not merely whether any defects in representation were apparent from the record. Thus, a trial court's duty to investigate arises only if, at an early stage in the proceedings, a defendantpresents facts suggesting a conflict that goes beyond the problem of one public defender having toattack another. For instance, the defendant's telling the court that his new attorney had often servedas his trial attorney's trial partner might trigger the trial court's duty to inquire. See People v.Vaughn, 200 Ill. App. 3d 765, 770 (1990). If the defendant has not brought the specifics to the trialcourt's attention early, then the reviewing court (or the trial court considering a posttrial motion)should grant relief only if the defendant presents evidence of an actual conflict, i.e., evidence of aspecific defect in counsel's performance attributable to the conflict. That is the case-by-case inquiryrequired by, and conducted in, Banks.

Here, the defendant did not trigger a duty in the trial court to conduct an inquiry at the outsetof the postconviction representation. He did raise a claim of conflict of interest early in thepostconviction proceedings, but did not suggest any conflict beyond Holman's employment in thesame office as Kunz. Therefore, we are limited in our inquiry to the question of whether any defectin the representation gives evidence of the presence of an actual conflict of interest. The defendantdoes not point to any such defect, and our review of Holman's handling of the petition does notsuggest that he shied away from pursuing the ineffective assistance of counsel claims. The defendantalso asserted that Holman was not communicating with him enough, but the details of that complaint,that he had received only one call and one letter from Holman, suggest that it may have been theresult of the defendant's unrealistic expectations. As a result, the defendant has not established thata conflict of interest existed such that we must reverse the dismissal of his postconviction petition.

The defendant contends that People v. Levesque, 256 Ill. App. 3d 639 (1993), interpretedBanks to hold that a trial court's duty to inquire into the possibility of a conflict of interest is triggeredwhenever the court has placed one lawyer from a public defender's office in the position of attackingthe effectiveness of another. The defendant's interpretation of Levesque seems correct to us. However, to the extent the defendant is correct in his reading of Levesque, Levesque is wrong in itsreading of Banks.⁽¹⁾ Levesque concerned a defendant who was represented first by an assistant publicdefender, and then, posttrial, by that assistant's supervisor. Levesque, 256 Ill. App. 3d at 642-43. Although the reviewing court could have deemed this to be the kind of specific fact suggesting aconflict that triggers the trial court's duty to inquire, the Levesque court's words suggest that itbelieved that Banks created a broader duty of inquiry by the trial court. See Levesque, 256 Ill. App.3d at 650. As we have stated, such a broader duty of inquiry is simply inconsistent with Banks' lackof analysis of the trial courts' actions.

For the reasons given, we affirm the order of the circuit court of Du Page County dismissingthe defendant's postconviction petition.

Affirmed.

BYRNE and KAPALA, JJ., concur.

1. Other cases are more explicit in this mistaken reading of Banks. People v. Hartfield, 232Ill. App. 3d 198 (1992), is an example of such a case:

"In Banks, the court held that assigning a public defender to represent a convictedperson in an ineffective assistance of counsel claim against another attorney from the sameoffice does not present a per se conflict of interest. The court held that, instead, the circuitcourt must examine each case for circumstances that would result in an actual conflict." Hartfield, 232 Ill. App. 3d at 210.