FIRST DISTRICT DECEMBER 28, 2015

No. 1-13-0127

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 05 CR 17920 ) DERRICK HATCHETT, ) Honorable ) Nicholas R. Ford, Defendant-Appellant. ) Judge Presiding.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Justices Connors and Harris concurred in the judgment and opinion.

OPINION

¶1 This appeal arises from the November 28, 2012 order entered by the circuit court of Cook

County, which dismissed defendant Derrick Hatchett's postconviction petition after an

evidentiary hearing at the third stage of the proceedings. On appeal, the defendant argues that

the circuit court erred in denying his requested relief for a new trial by dismissing his

postconviction petition after a third-stage evidentiary hearing, where he made a substantial

showing that he was denied his constitutional right to effective assistance of counsel. For the

following reasons, we affirm the judgment of the circuit court of Cook County.

¶2 BACKGROUND

¶3 On September 22, 2003, Patrick Taylor was shot multiple times on South Lowe Avenue

in Chicago, Illinois. He died of his injuries the next day. In 2004, the defendant and 1-13-0127

codefendant Arthur Foote (Foote) were charged with first-degree murder and aggravated battery

of the victim.

¶4 On August 11, 2005, private attorney Eric Dunham (Attorney Dunham) appeared in court

on behalf of both the defendant and Foote, at which time he informed the trial court that he

would probably "be separating [himself] from one of the cases" and would let the State know

when that time came.

¶5 On November 30, 2005, Attorney Dunham appeared in court on behalf of both the

defendant and Foote. The State raised the issue of a potential conflict of interest in Attorney

Dunham's joint representation of the defendant and Foote "when and if this case goes to trial." In

response, the trial court noted that Attorney Dunham had acknowledged the possibility of a

conflict of interest, and that the court would deal with the issue if it came to fruition after the

pretrial motions were resolved.

¶6 On May 3, 2006, the trial court granted the defendant's motion to suppress his statement

to the police, finding that inexplicable injuries which the defendant sustained while in police

custody showed that his confession was a product of coercion.

¶7 On September 20, 2006, at a court hearing, the State indicated that there might be a

conflict of interest in Attorney Dunham's representation of both the defendant and Foote in the

event that the State makes a plea offer to one of them:

"[MR. AHERN] [Assistant State's Attorney]: Are you

going to represent both guys for the trial?

[MR. DUNHAM]: Yes, I am.

[MR. AHERN]: Because I wanted to make an offer on one.

If there is an inherent conflict in that. I don't know what the case

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law is. If I make an offer on one defendant, it is an inherent

conflict to the other defendant. It's clear because of what the offer

would entail.

[THE COURT]: It depends on what the offer would entail.

[MR. AHERN]: It is going to entail exactly what you're

thinking."

Thereafter, the parties engaged in off the record discussions with the trial court and the case was

continued for another status date.

¶8 On October 3, 2006, at the next court date, Attorney Dunham noted that the State "was to

possibly make an offer to the defendants" and that the "question of whether I can represent both

of them" has surfaced. Attorney Dunham informed the court that he had "spoken with the

defendants and they both informed me anything short of total dismissal of these charges would

not be accepted, so I do not envision any—." The trial court then set the matter for a trial date on

November 20, 2006.

¶9 On November 20, 2006, Attorney Dunham appeared in court for both the defendant and

Foote and made a demand for trial.

¶ 10 On December 12, 2006, at the next court date, the State again raised the issue of Attorney

Dunham representing both the defendant and Foote. The following exchange ensued:

"[MR. AHERN]: It's about counsel representing both

[d]efendants. I had told him I thought there was a direct conflict,

especially since I hypothetically offered one, Hatchett, time

considered served or five years or time considered served on

second for co-offender. Counsel said he wasn't interested in offers.

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The facts of the case we had reversed here for the very

same reasons, according to White. It's inherent conflict. Even

especially when I make the offer it's inherent conflict between the

two people who is considering being advised on testifying against

his other client and that's inherent conflict. That's the first issue.

Second issue, counsel and I talked on the phone yesterday

about one of the – the eyewitnesses in the case, [Tron] Johnson.

He has done handwritten for the State as both offenders being

actors in the shooting. Counsel had told me – he can speak for

himself; but it was his understanding [Tron] Johnson could not

testify because the statement of Derrick Hatchett was suppressed

and therefore since [Tron] Johnson was named in the statement and

that's how the police got his name, we could not call him as a

witness. It wasn't pled anywhere in the document that [Tron]

Johnson was to be excluded.

***

[MR. DUNHAM]: We are saying that statement, the

handwritten statement that [Tron Johnson] made after Hatchett's

statement, should not be able to be used.

[THE COURT]: Why?

[MR. DUNHAM]: Because it is part of the fruit of the

poisonous tree. If that statement had never been shown to Mr.

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Johnson, he would not have – it's our position he would not have

wrote [sic] a statement. ***

[THE COURT]: I would not consider that fruit of the

poisonous tree. *** There is no way that would be considered

fruit of the poisonous tree. *** Fact of the matter is that wouldn't

prevent him from testifying and for the State, for that matter, to use

whatever statement he may have given as substantive evidence. Of

course, if he has given conflicting statement, that could come in as

well as impeachment. *** We have to get to this first issue

because it sounds to me as if the State may have a point regarding

conflict. Let's deal with that.

[MR. DUNHAM]: Judge, as I spoke to you, as I have

stated throughout this time, should they get to a point that there is a

conflict, we will bring another attorney.

[THE COURT]: Now is the time and it sounds like there is

a conflict.

[MR. DUNHAM]: Judge, we don't think there is a conflict.

[THE COURT]: *** It sounds as if there is a conflict. ***

You said something about and I don't know whether you were

saying hypothetically or whether or not an offer had been made.

[MR. DUNHAM]: It was hypothetical.

[MR. AHERN]: It was hypothetical I said if I gave him ten

years time considered served you would have to take that to him.

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Obviously the circumstances of the State's case change[d] after the

motion to suppress [was granted]. That's why the State would

make the offer. Therein lies the conflict. I feel it's a conflict so I

am not going to – I wasn't going to convey the real offer, but I told

him I wanted to.

[THE COURT]: You want to what?

[MR. AHERN]: I wanted to convey an offer to Derrick

Hatchett.

[THE COURT]: That's where you say counsel wasn't

interested in an offer.

[MR. AHERN]: I say, if I offered time considered served,

that's something he would be interested in.

[THE COURT]: But he would be bound to take the offer.

[MR. AHERN]: That's correct, Judge.

[MR. AHERN]: How do you counsel one client to testify

against the other client, really it's tickly [sic].

[THE COURT]: You don't without passing through the

ARDC.

[MR. AHERN]: That's true. That's actually one of how it

falls with counsel in the White case was the ARDC.

[THE COURT]: That's right. Well, I can't deal with a

hypothetical.

[MR. AHERN]: If he gets an attorney—

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[THE COURT]: No. Off the record. (Whereupon, a

discussion was held off the record).

[THE COURT]: Back on the record. I think it's fairly clear

there is a conflict and, Mr. Dunham, you have to make a decision

about who you represent and the other person will either have to

secure his own attorney or, if he is indigent, we will have to

appoint one.

[MR. DUNHAM]: Judge, for the record, I will be

representing Derrick Hatchett. Also for the record, *** Mr. Foote

is, indeed, indigent."

Subsequently, after Attorney Dunham withdrew from Foote's case and chose to only represent

the defendant, the trial court appointed Foote a new attorney.

¶ 11 On March 6, 2007, a bench trial was held during which several witnesses testified,

including Sergeant John Ryan and Tron Johnson. Sergeant Ryan testified to responding to a

"call of a man shot" on the 5700 block of South Lowe Avenue on the night of the shooting.

When Sergeant Ryan arrived at the scene, he saw the victim sitting on the sidewalk against a

fence with his eyes closed. Sergeant Ryan noticed that the victim had at least one gunshot

wound to his face, was bleeding from numerous spots on his face, had large bloodstain on his

chest, and had shallow breathing. Sergeant Ryan testified that when he asked the victim what

had happened, the victim stated that "Quick and Little Ride" had shot him. Over defense

counsel's objections, the trial court admitted the victim's statements regarding the identities of the

shooters as either an excited utterance or a dying declaration exception to hearsay. "Quick" and

"Little Ride" were established at trial as the nicknames of Foote and the defendant, respectively.

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At trial, Johnson, who was an eyewitness to the shooting, denied seeing the defendant and Foote

fire any weapons. Instead, he claimed that the shots were fired by "some guys off the porch" in

the neighborhood. The State then impeached Johnson with his prior written statement to an

assistant State's Attorney, in which he had admitted to seeing the defendant and Foote chase and

fire multiple shots at the victim. Johnson's prior written statement was then admitted as

substantive evidence at trial over defense counsel's objections. 1 The trial court found the

defendant guilty of first-degree murder and later sentenced him to 45 years in prison.

¶ 12 On direct appeal, the defendant set forth several bases for reversal, including that he was

denied effective assistance of counsel. On December 29, 2009, in affirming his conviction and

sentence, this court declined to consider the defendant's claim that defense counsel was

ineffective due to a conflict of interest stemming from his dual representation of the defendant

and Foote during pretrial proceedings. Hatchett, 397 Ill. App. 3d at 510. Instead, this court

stated that this issue was more appropriate for resolution in postconviction proceedings rather

than in the context of direct appeal. Id.

¶ 13 On May 21, 2010, the defendant filed a petition for postconviction relief, claiming that

defense counsel was ineffective due to his conflict of interest in representing both him and Foote

during pretrial proceedings. Attached to the postconviction petition were the transcripts of

pretrial proceedings and the affidavits of Shipan White, Juanita Perkins, and the defendant. The

postconviction court advanced the petition to the second stage of the proceedings. On November

17, 2010, the State filed a motion to dismiss the postconviction petition, which the

1 A detailed recitation of the facts in the case is set forth in this court's December 29, 2009 opinion resolving the defendant's direct appeal. See People v. Hatchett,

(2009).

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postconviction court denied and advanced the petition to the third stage of the proceedings for an

evidentiary hearing.

¶ 14 On April 12, 2012, an evidentiary hearing commenced. The defense presented the

testimony of Attorney Dunham, the defendant, and Juanita Perkins (Perkins), who was the

defendant's girlfriend. The State presented the testimony of assistant State's Attorneys Scott

Clark (ASA Clark) and Gregory Ahern (ASA Ahern). Attorney Dunham testified at the

evidentiary hearing that the State initially made the same offer to both defendants of

approximately 20 years of imprisonment in exchange for a plea of guilty. However, after the

trial court granted the motion to suppress the defendant's statement, the State did not make a

"firm offer" to him and "no plea offer *** was actually given." Attorney Dunham stated that if

he had understood the State to be making an offer requiring the defendant to testify against

Foote, he would have informed both defendants and would have withdrawn from one of their

cases. He also noted that had the State made an offer, he would have taken it to the defendant.

Attorney Dunham conceded that he signed an affidavit dated June 28, 2011, in which he averred

that he did not give sufficient consideration to a plea offer, and that he should have requested

separate counsel for the defendant to advise him on the wisdom of accepting a plea offer.

Attorney Dunham explained at the evidentiary hearing that "the only offer that was given was a

hypothetical one that was given in court," and that there was no plea offer to consider. He

further explained that in retrospect, "he could have potentially proceeded to go after a plea based

on that hypothetical." Finally, Attorney Dunham clarified that his affidavit only pertained to the

time period while he jointly represented both defendants. Attorney Dunham testified that once

he chose to solely represent the defendant, he had no "divided loyalty" and maintained that he

did not have any conflict of interest even before that time. Attorney Dunham further testified

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that after the trial court granted the defendant's motion to suppress on May 3, 2006, he was

"extremely confident" that the defendant would be acquitted.

¶ 15 The defendant testified at the evidentiary hearing, stating that he met Attorney Dunham

through Foote because Attorney Dunham had represented Foote in an unrelated matter and had a

relationship with Foote's aunt. He testified that once there was "ambiguous" discussion about a

possible plea deal, he asked Attorney Dunham to discuss the deal, but he failed to do so.

However, the defendant conceded that, although he was present when the hypothetical deal was

being discussed in court during pretrial proceedings, he did not object to Attorney Dunham's

statement that neither he nor Foote would accept anything short of total dismissal of the charges.

The defendant explained that he did not "independently" attempt to work out a plea deal because

Attorney Dunham told him not to accept a deal where he would have to testify against Foote.

The defendant, however, also testified that he felt no "particular loyalty" to Foote and was

willing to do "what was best for me at the time." The defendant further noted that he would have

accepted a deal which included him testifying against Foote had Attorney Dunham brought such

a deal to his attention. In addition, the defendant testified that he first retained Attorney Dunham

in 2001 on an unrelated attempted murder charge. The defendant, however, testified that he had

never met Attorney Dunham prior to 2004, when he was arrested on the instant first-degree

murder charge with Foote and Foote paid a $500 retainer to Attorney Dunham. The reason that

he had never met Attorney Dunham until 2004 was because he had fled the jurisdiction after

being charged with attempted murder in the unrelated crime in 2001. The defendant also

testified that after he was convicted of first-degree murder in the instant case, he continued to

retain Attorney Dunham as his counsel in the attempted murder case. In the attempted murder

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case, Attorney Dunham successfully negotiated a 4-year sentence in exchange for the defendant's

guilty plea, which the defendant accepted.

¶ 16 Perkins, who was the defendant's girlfriend, testified at the evidentiary hearing that she

met Attorney Dunham through Foote. She stated that Foote hired Attorney Dunham to represent

the defendant in this case by making the initial payment, but that Perkins and the defendant's

mother, Sharon Fleming, made subsequent payments to Attorney Dunham on behalf of the

defendant. Perkins understood Attorney Dunham to be a relative of Foote. Perkins attended all

but one of the defendant's court dates while the instant case was pending before the trial court.

At one of the court dates, she heard the assistant State's Attorney say something about a plea

offer to the defendant and she then asked Attorney Dunham about it. Attorney Dunham told her

that neither the defendant nor Foote wanted anything "short of dismissal of the whole case" and

that the defendant would have to "flip on" Foote. According to Perkins, Attorney Dunham told

her that the case against the defendant was weak and that the defendant should not accept any

plea offers. She denied that she ever discussed with Attorney Dunham about whether the

defendant's case would go to trial.

¶ 17 ASA Clark testified for the State at the evidentiary hearing that he was assigned to the

defendant's murder case in 2006. At that point, both the defendant and Foote were represented

by different counsel. ASA Clark had reviewed the trial file and learned that no plea offer had

ever been made to the defendant and that Attorney Dunham had made a statement on the record

that neither the defendant nor Foote would accept any plea offer other than total dismissal of

their charges. A note in the trial file also indicated the neither the defendant nor Foote wanted an

offer. ASA Clark neither extended any plea offers to Attorney Dunham or the defendant, nor did

anyone ever approach ASA Clark about an offer for the defendant.

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¶ 18 ASA Ahern testified for the State that during pretrial proceedings on December 12, 2006,

Attorney Dunham was still jointly representing the defendant and Foote, and ASA Ahern raised

the issue of Attorney Dunham's potential conflict with the court. ASA Ahern told the court that

he believed a conflict existed in the dual representation and that even if the State were

hypothetically thinking to make a plea offer to one of the defendants for time served, such an

offer could never be made to the defense due to the joint representation. In recounting the

colloquy between the parties' counsel and the trial judge, ASA Ahern testified that he had

informed the court at that time that because of the dual representation, he could not even get to

the point of making a real offer to either defendant. ASA Ahern noted that, at that time, he could

not even know what kind of deal he would offer because he had yet to speak with his supervisor

about "which ones flip or what to offer," he had yet to speak with any of the witnesses to assess

the strength of the case, and he had yet to speak with the victim's family. ASA Ahern clarified

that he never made either the defendant or Foote any real offers, and that it never passed "the

preliminary hypothetical stage." ASA Ahern stated that his motivation in seeking separate

counsel to represent the defendant and Foote was to "leave the option open if I wanted to

strengthen the case against one or the other" by having one testify against the other. He noted

that at the December 12, 2006 proceedings, the trial court ruled that there was a conflict of

interest and, subsequently, each defendant had separate counsel. ASA Ahern further testified

that although he was not in court during the October 3, 2006 court date, he later learned from

another prosecutor who was present on that court date that Attorney Dunham had stated on the

record that neither the defendant nor Foote was interested in an offer unless it involved total

dismissal of the charges against them. ASA Ahern had no reason to doubt the veracity of what

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his fellow prosecutor relayed to him. ASA Ahern further testified that, after the December 12,

2006 proceedings, his assignment changed and he no longer worked on this case.

¶ 19 The parties stipulated that if recalled to testify, Attorney Dunham would testify that he

had multiple conversations with the defendant outside the presence of Foote, and that he never

told the defendant's sister, Shapan White, or anyone that there was a plea off made to him by the

State.

¶ 20 On November 28, 2012, the postconviction court dismissed the defendant's petition,

finding that the defendant had failed to make a substantial showing of a constitutional violation

of his right to effective assistance of counsel due to a conflict of interest in Attorney Dunham's

joint representation of the defendant and Foote in pretrial proceedings. Specifically, the

postconviction court found Attorney Dunham to be a credible witness and the defendant's

testimony to be "entirely incredible."

¶ 21 On December 18, 2012, the defendant filed a timely notice of appeal.

¶ 22 ANALYSIS

¶ 23 The relevant inquiry before this court on appeal is whether the postconviction court

properly denied the requested relief for a new trial and dismissed the defendant's postconviction

petition after an evidentiary hearing at the third stage of the proceedings.

¶ 24 The defendant argues that he was denied his sixth amendment right to counsel (U.S.

Const., amend VI) when Attorney Dunham represented both him and Foote during pretrial

proceedings. He contends that this dual representation prejudiced him, where Attorney Dunham

failed to advise him of the plea offer by the State and the impact of the conflict of interest. The

defendant also argues that after Attorney Dunham elected to solely represent him on December

12, 2006, the trial court failed to admonish him regarding the implications of counsel's continued

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representation or the implications of the conflict of interest. Because of Attorney Dunham's

relationship with Foote's family, according to the defendant, counsel protected Foote and failed

to pursue a plea negotiation with the State which would entail the defendant testifying against

Foote. Moreover, he argues, there was no evidence that he intentionally waived his right to a

conflict-free counsel, nor was there any evidence that he consented to the continued

representation by Attorney Dunham either before or after the disclosure of the conflict. He

contends that the trial court's finding that the State merely made a hypothetical offer, begs the

question of why Attorney Dunham did not pursue the offer after electing to only represent him,

and he argues that counsel's defective performance in failing to investigate the plea offer and in

failing to counsel him, as a result of the conflict of interest, unduly prejudiced him.

¶ 25 The State counters that the postconviction court properly dismissed the defendant's

petition at the third stage, where the defendant failed to make a substantial showing that he was

denied effective assistance of counsel due to a conflict of interest during pretrial proceedings.

The State argues that the trial court acted properly by terminating the dual representation; that

the defendant's claim that the trial court should have admonished him about the conflict of

interest after the dual representation dissolved, was bereft of legal support; that his claim that

Attorney Dunham failed to investigate the plea offer is refuted by the record showing that no real

offer was made by the State during the period of joint representation; and that the defendant

failed to show any specific defect in counsel's performance or any resulting prejudice. The State

further points out that nothing precluded the defendant from seeking to enter into plea

negotiations with the State after the joint representation had terminated three months before trial

began.

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¶ 26 When a postconviction petition is advanced to the third-stage evidentiary hearing, where

fact finding and credibility determinations are involved, as in the instant case, a reviewing court

will not reverse the circuit court's decision unless it is manifestly erroneous. People v.

Pendleton,

(2006). A decision is manifestly erroneous if it contains an error

that is clearly evident, plain, and indisputable. People v. Tyler,

.

¶ 27 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)) provides

a three-step procedural mechanism by which a convicted defendant can assert that there was a

substantial denial of his constitutional rights in the proceedings which resulted in his conviction.

People v. Harris,

(2007). "A postconviction proceeding is not an appeal from the

judgment of conviction, but is a collateral attack on the trial court proceedings." People v.

Petrenko,

(2010). "Consequently, issues that could have been raised on

direct appeal but were not are forfeited."

Under the Act, a defendant bears the burden of

establishing that a substantial deprivation of his constitutional rights occurred. People v.

Waldrop,

(2004). At the first stage, a postconviction petition may be

summarily dismissed if the claims in the petition are frivolous and patently without merit.

People v. Hodges,

(2009); see 725 ILCS 5/122-2.1(a)(2) (West 2010)).

However, if the petition survives initial review, the process moves to the second stage, where the

circuit court appoints counsel for the defendant when the defendant cannot afford counsel. 725

ILCS 5/122-4 (West 2010). Appointed counsel then has an opportunity to amend the defendant's

pro se postconviction petition. See People v. Slaughter,

(1968). The State

may then file a motion to dismiss or an answer to the postconviction petition. 725 ILCS 5/122-5

(West 2010). At the second stage of the proceedings, if the State moves to dismiss the petition,

the circuit court may hold a dismissal hearing, which is still part of the second stage. People v.

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Wheeler,

, 308 (2009). "[T]he circuit court must determine whether the

petition and any accompanying documentation make a substantial showing of a constitutional

violation." People v. Edwards,

(2001). However, the circuit court is

foreclosed from engaging in any fact-finding because all well-pleaded facts are to be taken as

true at this point in the proceedings. Wheeler, 392 Ill. App. 3d at 308. If a substantial showing

of a constitutional violation is set forth, the petition advances to the third stage for an evidentiary

hearing. Edwards,

. At the evidentiary hearing, the defendant bears the burden

of making a substantial showing of a deprivation of constitutional rights. People v. Coleman,

(2002).

¶ 28 In the case at bar, the defendant filed a postconviction petition alleging that defense

counsel was ineffective due to his conflict of interest in representing both he and Foote during

pretrial proceedings. To prevail on a claim of ineffective assistance of counsel, the defendant:

(1) must prove that counsel's performance fell below an objective standard of reasonableness so

as to deprive him of the right to counsel under the sixth amendment (performance prong); and (2)

that this substandard performance resulted in prejudice (prejudice prong). Strickland v.

Washington,

(1984). To establish the performance prong, the defendant

must overcome a strong presumption that, under the circumstances, the challenged action or

inaction was sound trial strategy. People v. Lopez,

(2007). Because

effective assistance of counsel refers to competent, not perfect, representation, "matters relating

to trial strategy are generally immune from claims of ineffective assistance of counsel."

. Further, in determining the adequacy of counsel's representation, "a reviewing court will

not consider isolated instances of misconduct, but rather the totality of the circumstances."

To establish prejudice, the defendant must show that "there is a reasonable probability that, but

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for counsel's unprofessional errors, the result of the proceedings would have been different."

(Internal quotation marks omitted.) People v. King,

(2000). A

reasonable probability is one that sufficiently undermines confidence in the outcome.

The

defendant must satisfy both prongs to prevail on his claim of ineffective assistance of counsel.

However, a reviewing court may analyze the facts of the case under either prong first, and if it

deems that the standard for that prong is not satisfied, it need not consider the other prong.

People v. Irvine,

(2008).

¶ 29 A defendant's sixth amendment right to effective assistance of counsel includes the right

to conflict-free representation. People v. Hardin,

(2005). "Such

representation means assistance by an attorney whose loyalty to his or her client is not diluted by

conflicting interests or inconsistent obligations." People v. Taylor,

(2010).

The joint representation of criminal codefendants is not per se violative of the constitutional

guarantee of conflict-free representation."

. Further, " 'defense strategy in multiple

representation situations often will invite, through hindsight, conceived notions that the

representation adversely affected the interests of at least one defendant at some point in the trial

process.' "

, (quoting People v. Vriner,

(1978)). However, our

supreme court has consistently held that a conflict of interest is not inherent in the joint

representation of criminal codefendants merely by virtue of such representation. Taylor,

; Vriner,

; accord People v. Orange,

(1995).

¶ 30 "The analysis of an alleged conflict depends on when the issue was raised before the trial

court." People v. Clark,

(2007). "If the potential conflict is brought to

the attention of the trial court by counsel at an early stage, a duty devolves upon the trial court to

either appoint separate counsel or to take adequate steps to ascertain whether the risk of conflict

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was too remote to warrant separate counsel."

Reversal for the trial court's failure to alleviate

possible or potential conflicts does not require a showing of "specific prejudice." (Internal

quotation marks omitted.)

(quoting People v. Spreitzer,

(1988)). However,

if the trial court is not apprised of the potential conflict, then the defendant must show that an

actual conflict of interest adversely affected counsel's performance and must point to some

specific defect in counsel's strategy, tactics, or decision making attributable to the conflict.

Clark,

. In the case at bar, the conflict pertaining to Attorney Dunham's

dual representation of the defendant and Foote was brought to the attention of the trial court by

the State and was resolved at an early stage during pretrial proceedings on December 12, 2006—

three months before the defendant's bench trial commenced on March 6, 2007. The trial court

found that a conflict of interest existed and properly alleviated any further potential conflict by

appointing separate counsel for Foote and by allowing Attorney Dunham to solely represent the

defendant. Thus, the trial court did not fail to fulfill its duty after being apprised of the potential

conflict of interest and, therefore, any conflict of interest ceased to exist after December 12,

2006. The defendant argues that, after Attorney Dunham elected to solely represent him on

December 12, 2006, the trial court failed to admonish him regarding the implications of counsel's

continued representation or the implications of the conflict of interest. However, we find no

legal authority, and the defendant does not cite any, to support the notion that the trial court had

an additional duty to admonish the defendant about the conflict of interest even after the dual

representation was resolved and the risk of a conflict of interest was removed. It is also crucial

to note that, as the record reveals, the defendant was present for all of the pretrial proceedings

leading up to and including the December 12, 2006 court date, and presumably heard and was

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aware of all discussions between the trial court and the parties' attorneys regarding the issue of

conflict of interest. Thus, the defendant's argument on this basis must fail.

¶ 31 The defendant also argues that there was no evidence that he ever consented to the

continued representation by Attorney Dunham either before or after the disclosure of the conflict

of interest. To the extent that the defendant now complains he was denied his right to counsel of

choice, we find this argument to be forfeited for review on appeal where it was not raised in his

postconviction petition. See People v. Jones,

(2004); People v. Petrenko,

(2010) (issue not raised in the postconviction petition is not reviewable on

appeal). Nevertheless, the transcripts of the pretrial proceedings, which were attached to the

postconviction petition, show that the defendant, despite being present at every relevant court

hearing, never objected to being represented by Attorney Dunham. Testimony at the evidentiary

hearing shows that although Foote initially paid $500 to retain Attorney Dunham to represent the

defendant, Perkins and the defendant's mother made subsequent payments to counsel on behalf

of the defendant. There is no evidence that the defendant ever objected to Perkins and his

mother's continuing payments to Attorney Dunham during pretrial and trial proceedings. In fact,

the defendant's own testimony reveals that he retained Attorney Dunham as counsel in 2001 on

an unrelated attempted murder charge and that he continued to be represented by Attorney

Dunham in that unrelated case even after he was convicted of murder in the instant case.

Therefore, we find the defendant's contention regarding his right to counsel of choice, to be

without merit.

¶ 32 In arguing for reversal, the defendant claims that evidence adduced at the third-stage

evidentiary hearing supports the notion that Attorney Dunham labored under a conflict of interest

when he jointly represented the defendant and Foote during pretrial proceedings from August 11,

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2005 to December 12, 2006. The bulk of the defendant's claim of ineffective assistance of

counsel pertains to his arguments that, during this joint representation period, Attorney

Dunham's performance was deficient because counsel failed to "investigate" and "pursue plea

negotiations" entailing the defendant to testify against Foote, failed to advise him of the State's

plea offer, and failed to pursue a plea offer on his behalf after electing to only represent him.

¶ 33 We find that the postconviction court did not commit manifest error in dismissing the

defendant's petition at the third stage, where the defendant failed to make a substantial showing

that he was denied effective assistance of counsel due to a conflict of interest during pretrial

proceedings. The record shows that on August 11, 2005, Attorney Dunham appeared in court on

behalf of both the defendant and Foote, and informed the trial court that he would probably "be

separating [himself] from one of the cases" but would let the State know when that time came.

On November 30, 2005, Attorney Dunham appeared in court on behalf of both the defendant and

Foote. The State raised the issue of a potential conflict of interest in defense counsel's dual

representation, which the trial court responded by noting that Attorney Dunham had

acknowledged the possibility of a conflict of interest and the court would address the issue if it

came to fruition after the pretrial motions were resolved. On May 3, 2006, the trial court granted

the defendant's motion to suppress his incriminating statement to the police, finding his

confession to be a product of coercion. Thereafter, at the September 20, 2006 court hearing, the

State, without specifying which defendant, noted that there might be a conflict of interest in

Attorney Dunham's dual representation in the event that the State makes a plea offer to one of

them. After the parties engaged in off the record discussions, the case was continued for another

status date. On October 3, 2006, at the next court date, Attorney Dunham informed the trial

court that he had spoken with the defendant and Foote and they both informed counsel that

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"anything short of total dismissal of these charges would not be accepted." At the December 12,

2006 court date, the State again raised the issue of a potential conflict in defense counsel's dual

representation. The attorneys and the trial court then engaged in discussions about the issue of

conflict, during which both the State and Attorney Dunham noted that any mention of an offer by

the State thus far had been "hypothetical." The State remarked that its case changed after the

defendant's motion to suppress his confession was granted, that the State would make an offer to

the defendant, but that the inherent conflict in Attorney Dunham's dual representation would

prevent the State from making an offer in the future because it would involve defense counsel

advising one client to testify against another client. After an off the record discussion, the trial

court determined that there was a conflict of interest, and Attorney Dunham withdrew as Foote's

counsel and continued to represent the defendant at trial.

¶ 34 At the evidentiary hearing, Attorney Dunham testified that, after the trial court had

granted the defendant's motion to suppress statement, the State did not make a "firm offer" to

him and "no plea offer *** was actually given." He further explained that "the only offer that

was given was a hypothetical one that was given in court." Attorney Dunham further testified

that after the trial court granted the defendant's motion to suppress on May 3, 2006, he was

"extremely confident" that the defendant would be acquitted. ASA Ahern testified that at the

time of the December 12, 2006 court hearing, he had only informed the court that he could not

even get to the point of making a real offer to either defendant because of the dual representation.

ASA Ahern clarified at the evidentiary hearing that at the time of the December 12, 2006

hearing, he could not even know what kind of deal he would offer because he had yet to speak to

his supervisor about it, had yet to speak with any witnesses to assess the strength of the State's

case, and had yet to speak with the victim's family. He testified that he never made any real

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offers to either the defendant or Foote, that it never passed the "preliminary hypothetical stage,"

and that his motivation in raising the conflict of interest issue during pretrial proceedings was to

"leave the option open *** to strengthen the [State's] case against one or the other" by having

one of the accused testify against the other. At the evidentiary hearing, ASA Clark also

confirmed that the State never made any real plea offers to the defendant, and that a note in the

trial file indicated that neither the defendant nor Foote wanted an offer.

¶ 35 We find that the only evidence that the defendant has presented is that after the trial

court's May 3, 2006 denial of the motion to suppress, the State contemplated making a

"hypothetical" offer to the defense, but Attorney Dunham rejected any potential offers because

he thought the defense's case had "improved quite measurably." As Attorney Dunham testified

at the evidentiary hearing, following the trial court's grant of the motion to suppress the

defendant's incriminating statement, he was "extremely confident" that the defendant would be

acquitted. We find Attorney Dunham's decision, following the trial court's grant of the motion to

suppress the defendant's incriminating statement, to be reasonable, albeit misguided in hindsight.

We will not evaluate counsel's performance with the benefit of hindsight, but rather will afford

great deference to his decisions at the time of the pretrial proceedings. People v. Fuller,

(2002) (counsel's strategic choices are virtually unchallengeable; thus, the fact

that another attorney might have pursued a different strategy, or that the strategy chosen by

counsel has ultimately proved unsuccessful, does not establish a denial of the effective assistance

of counsel). Attorney Dunham's testimony at the evidentiary hearing also establishes that based

on his pretrial conversations with the defendant about the strength of the case, the defendant

"was not interested" in pleading guilty. The transcript of the October 3, 2006 pretrial

proceedings also supports this notion, as Attorney Dunham informed the court on that date that

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he had "spoken with the defendants and they both informed me anything short of total dismissal

of these charges would not be accepted." Although the defendant points to an affidavit by

Attorney Dunham, in which counsel stated that he "did not give due consideration to the plea

offer that was made by [the State] to [the defendant] that involved him giving testimony against

[Foote]," Attorney Dunham clarified during his testimony at the evidentiary hearing that he was

referring to a hypothetical offer by the State. Because the postconviction court found counsel's

testimony to be credible and the defendant's testimony incredible, which we will not disturb on

appeal, we cannot conclude that defense counsel's decision not to "pursue" or "investigate" a plea

offer for the defendant was deficient performance. Hindsight illuminates defense counsel's

extreme confidence regarding acquittal as being misguided. However, that view of likely

acquittal is understandable in light of the suppressed confession. It can therefore be inferred that

defense counsel's decision to forego approaching the State for a deal on behalf of the defendant,

was strategically reasonable at the time. Through the lens of hindsight and time, the fallibility of

that decision is unmistakable. Unfortunately for the defendant the effectiveness of his counsel's

representation is not measured through the lens of hindsight. Moreover, the defendant's claim

that defense counsel failed to disclose the potential conflict to the defendant should also be

rejected, as the record clearly shows that counsel did not consider the dual representation to be a

problem in advocating on behalf of the defendant. Additionally, the defendant was fully aware

of counsel's dual representation at all times, and the defendant was present at every pretrial court

hearing in which the issue of a potential conflict of interest was raised and he never once

objected to representation by Attorney Dunham. It is also noteworthy that the defendant

continued his relationship with Attorney Dunham on the unrelated attempted murder case even

after he was convicted in the instant case.

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¶ 36 Even if Attorney Dunham's performance was unreasonable or deficient, the defendant has

failed to establish that counsel's conduct prejudiced him. The defendant has failed to present any

evidence showing that the State had made a plea offer to him while Attorney Dunham jointly

represented him and Foote, or that counsel failed to convey an offer to him once he elected to

solely represent the defendant. The record shows that any discussions about a possible offer

were merely hypothetical. Thus, the defendant has failed to show a reasonable probability that

but for any alleged error in Attorney Dunham's performance, he would have accepted a plea deal

offered by the State, where the State never made a real offer. It should also be noted that

although the defendant testified during the hearing on his postconviction petition to his

likelihood of accepting a plea deal, the trial court found his testimony incredible.

¶ 37 Aside from the fact that there was no real offer by the State and that pretrial discussions

only involved hypothetical offers, which would entail the defendant testifying against Foote, the

defendant seems to overlook the fact that he had no constitutional right to be offered the

opportunity to plea bargain. See People v. Palmer,

(1994). Thus, the

defendant cannot claim prejudice from defense counsel's failure to extract an offer from the

State.

¶ 38 In support of his arguments that the trial court's findings were manifestly erroneous, the

defendant cites People v. White,

(2005). However, White is inapposite

where it involved counsel's dual representation that resulted in an actual conflict of interest that

manifested itself during trial, and the conflict was not alleviated by the trial court in a timely

manner.

(holding that defense counsel's cross-examination at trial was to "sacrifice"

defendant for the sake of codefendant, who was acquitted). Unlike White, any potential conflict

of interest in the case at bar, as discussed, was alleviated by the trial court on December 12,

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2006, more than three months prior to the commencement of trial. Thus, White does not

advance the defendant's position.

¶ 39 The defendant further makes arguments that seem to suggest that because of the initial

potential conflict of interest during the period of dual representation, Attorney Dunham was also

deficient for failing to pursue a plea offer from the State even after counsel elected to solely

represent the defendant. He claims error in the trial court's findings that Attorney Dunham's

"extremely confident" belief that he would be acquitted was reasonable, by pointing out that

witness Johnson's "eyewitness testimony and written statement were real obstacles to [his]

defense." We reject this contention. The defendant's argument actually undercuts his own

position. If Johnson's testimony and written statement were "real obstacles" to the defense, then

the same could be said that, during the three-month period prior to trial, ASA Ahern very well

could have assessed the strength of the State's case and determined that evidence from Johnson

and the victim's dying declaration identifying the defendant and Foote as the shooters, were

strong enough to convict them at trial—hence, any willingness by the State to make plea offers

possibly diminished. As this court already found on direct appeal, the victim's dying declaration

was "singly sufficient to convict" the defendant of first-degree murder. Hatchett,

. Although it is unclear whether Attorney Dunham made any attempts to engage the

State in plea negotiations after he withdrew from Foote's case and during the three-month period

leading up to the defendant's trial, counsel's conduct could not have prejudiced the defendant

where there is no evidence that State ever made a plea offer to the defense either before or after

the dual representation terminated. It is crucial to note that, the State had plenty of time during

the three-month period after the dual representation ended and before the defendant's trial began,

to make a real plea offer to the defense. However, it chose not to do so. As the postconviction

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court found, "it [is] incredible that if [the defendant] did not agree with [Attorney] Dunham's

handling of the case, he would merely sit by in court day after day, without attempting to object

or to seek to work out a deal with the State. *** [The defendant], however, did not take any

action, and now cannot complain about a risk he took that did not work out." Nothing precluded

the defendant from seeking to enter into plea negotiations with the State, had the State been

willing to do so, after the dual representation terminated. The truth of the matter is that this case

like scores of others, comes down to trial strategy that did not work out in the defendant's favor.

Therefore, we find that the defendant failed to establish a claim for ineffective assistance of

counsel based on defense counsel's dual representation of the defendant and Foote during pretrial

proceedings. Accordingly, we hold that the defendant made no substantial showing of a

constitutional violation, so as to warrant a new trial, and the postconviction court's decision to

dismiss the petition at the third stage of the proceedings was not manifestly erroneous.

¶ 40 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 41 Affirmed.

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