SIXTH DIVISION October 23, 2020

No. 1-17-1484

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court of ) Cook County. Plaintiff-Appellee, ) ) v. ) No. 11 CR 14557 ) HEGGIE CARR, ) ) Honorable Nicholas Ford, Defendant-Appellant. ) Judge Presiding.

JUSTICE CONNORS delivered the judgment of the court, with opinion. Justices Harris and Griffin concurred in the judgment and opinion.

OPINION

¶1 Defendant, Heggie Carr, appeals the dismissal of his postconviction petition after a third-

stage evidentiary hearing. On appeal, he contends that the circuit court should have granted his

petition because his trial attorney labored under a per se conflict of interest where the victim in his

case hired defendant’s attorney to represent him and testified against defendant at trial. Finding

that defendant did not waive the per se conflict that arose, we reverse and remand for a new trial.

¶2 I. BACKGROUND No. 1-17-1484

¶3 The following background is drawn from the record and this court’s order from defendant’s

direct appeal: People v. Carr,

. Defendant was charged with

aggravated domestic battery and aggravated battery, among other offenses, after an incident on

July 21, 2011, in which defendant beat the victim, Robin Hall, in a hotel room located at 6250

North Lincoln Avenue in Chicago. Two private attorneys, William Knox and Marc Gottreich, each

filed an appearance for defendant on August 19, 2011. Knox was granted leave to withdraw six

days later. Gottreich represented defendant for the rest of the pretrial proceedings and at trial,

though Nicholas O’Connor, an associate at Gottreich’s firm, appeared for defendant on one pretrial

date.

¶4 A. Trial

¶5 At the April 2012 trial, Hall testified that she and defendant had been together for the past

five years. Hall was an escort and defendant was her pimp. Hall further described defendant as

“my man, my best friend, and everything.” Hall would give defendant the money she made from

escorting. At the time of the incident, she was staying in a second-floor hotel room with Michael

Dillon. Hall had a phone conversation with defendant that did not go well, and she hung up the

phone on him. When Hall opened the door to leave, defendant entered and began searching the

room. After defendant saw Dillon in the bathroom, defendant started beating Hall. Defendant hit

her with his fist, knocked her teeth out, fractured her cheek bone, and hit her with something metal.

Hall escaped by jumping out of the window, whereupon someone grabbed the back of her shirt.

Hall landed on her hip and side, breaking her pelvic bone and wrist. Hall blacked out, but

remembered defendant asking if she was dead and throwing Hall’s phone at her. Hall was later

taken to the hospital, where she was treated for her injuries. After the incident, defendant sent Hall

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a letter, stating that Hall “kn[e]w what to say” at trial, defendant missed her, and he was looking

forward to returning home and celebrating their life together.

¶6 Michael Dillon also testified about the incident, stating that defendant had punched Hall

and used objects to strike her.

¶7 After closing arguments, the court found defendant guilty of three counts of aggravated

domestic battery and one count of aggravated battery. Defendant was sentenced as a Class X

offender to concurrent 14-year prison terms on each count.

¶8 B. Direct Appeal

¶9 In his direct appeal, defendant raised claims relating to the sufficiency of the evidence and

ineffective assistance of counsel, in that his counsel elicited certain harmful evidence. Defendant

also contended that—pursuant to the one-act, one-crime doctrine—the trial court improperly

convicted him of three separate aggravated domestic battery charges, in addition to one lesser

charge of aggravated battery, for the commission of a single physical act. This court issued its

decision on March 10, 2014, rejecting defendant’s sufficiency of the evidence and ineffective

assistance claims, but finding that the multiple convictions for aggravated domestic battery and

the additional aggravated battery conviction were unwarranted under the one-act, one-crime

doctrine.

Defendant’s aggravated battery conviction and two of the aggravated domestic battery

convictions were vacated.

. This court affirmed one conviction for aggravated domestic

battery.

¶ 10 C. Postconviction Proceedings

¶ 11 On July 10, 2014, defendant filed a postconviction petition, asserting in part that he was

denied the right to effective assistance of counsel because his trial attorney, Gottreich, labored

under a per se conflict of interest. Defendant stated that Hall—who was the complaining witness,

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the State’s key witness, and the victim—hired and paid Gottreich to represent him. Further, Hall

had owed a remaining balance. Defendant asserted that Gottreich never mentioned the conflict and

defendant only learned of the conflict when his appellate counsel mailed him a copy of an attorney-

client representation agreement.

¶ 12 Defendant attached several documents to his petition, including the aforementioned

attorney-client representation agreement, a March 2013 letter to defendant from Gottreich, a

March 2013 letter to defendant from the DePaul University College of Law legal clinic, and an

affidavit from defendant’s mother.

¶ 13 The attorney-client representation agreement stated in part:

“This agreement is entered into by and between the law firm of Gottreich &

Grace (‘Attorneys’) and Robin Hall (‘Client’) on 8/16/11. The Attorneys agree to

represent the Client in the pending criminal matter *** for the sum of 3000 plus

any investigational or court costs ***.

***

The Attorneys and Client further agree that upon the signing of this

Agreement, the Attorneys have been paid $1000 as an Advance Payment Retainer.”

There were two signature lines. Hall appeared to have signed above the first line. It was unclear

who signed above the second line, below which were typed the names Marc E. Gottreich and

Timothy M. Grace.

¶ 14 Gottreich’s March 2013 letter stated in part that “[a]s far as payments, Robin paid me

$1,000 to get started and your mom paid the balance of $2000 prior to the trial for a total of $3,000

for your case. I received no other money.”

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¶ 15 The March 2013 letter from the DePaul University College of Law legal clinic included

information about defendant’s direct appeal and postconviction petition. The letter also referred to

an invoice that had been provided by defendant’s trial attorney and noted “Robin Hall” was the

payor and “Marc Gottreich” was the payee. That invoice is not in the record.

¶ 16 Another attached document was an affidavit from defendant’s mother, Martha Carr, who

stated in part that she witnessed defense counsel give Hall advice about the case. Martha also stated

that Gottreich worked out all of the payment agreements with Hall.

¶ 17 On October 17, 2014, the circuit court advanced defendant’s petition to second-stage

proceedings and appointed counsel. Defendant’s postconviction counsel filed an Illinois Supreme

Court Rule 651(c) (eff. Feb. 6, 2013) certificate, and the State filed a motion to dismiss the petition.

After a hearing on the motion to dismiss, the court advanced the petition to a third-stage evidentiary

hearing.

¶ 18 The evidentiary hearing was held on June 1, 2017. There, defendant testified that while he

was in pretrial custody, a friend of the family named Tanesa hired an attorney with a last name of

Knox to represent defendant. Gottreich also appeared on his case, and both attorneys appeared for

him on the same date. On that date, defendant chose Gottreich to represent him based on

Gottreich’s proposed strategy. Knox withdrew. Gottreich told defendant he was hired “by the

family,” and defendant presumed that Tanesa had hired and paid him. After defendant was

convicted, he learned that Gottreich had actually been hired by Hall. Gottreich did not tell

defendant before or during the trial that Hall had hired him and never told defendant that Hall paid

him any amount of money. After defendant was convicted, defendant’s mother told him that

Gottreich asked her to pay because he was not receiving the money from Hall. Defendant

maintained that he did not direct anyone to contact or hire Gottreich on his behalf.

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¶ 19 Gottreich also testified at the hearing, recalling that defendant’s mother and Hall contacted

Gottreich by phone. Someone came to his office with money, “[t]hey signed a contract,” and

Gottreich began representing defendant. He did not intend to represent anyone other than

defendant. Gottreich stated that an associate in his firm, Nicholas O’Connor, signed the attorney-

client representation agreement and Gottreich was not present when it was signed. Gottreich

acknowledged that O’Connor “put the agreement between our law firm and Robin Hall,” but the

agreement “should have said Robin Hall on behalf of Heggie Carr or put Heggie Carr’s name in.”

When the agreement was signed, Gottreich knew that Hall was the victim and witness. It was “not

unusual for victims to hire us or pay us money on cases,” especially in a situation that initially

appeared to be “merely a misdemeanor domestic violence case.” Initially, Gottreich spoke to Hall

numerous times, but he did not indicate that he represented her. Hall stopped talking to Gottreich

after a few months. Gottreich did not specifically recall talking to defendant about Hall’s status as

the victim who would testify, but was sure that he did. Gottreich did not see a conflict and did not

bring the matter to the court’s attention.

¶ 20 After closing arguments, the court issued an oral ruling that denied defendant’s petition

and stated as follows. Defendant was intelligent, and the relationship between a prostitute and her

pimp “is a complicated and complex one.” Defendant knew what Hall was doing when she visited

Gottreich and gave him a $1000 deposit. Further, it was at least arguable that the money was

defendant’s because “they had this ongoing relationship.” It was plausible that Hall was “just a

mechanism, a vessel to take the money from wherever he accumulated it and pass it on to the

attorney.” The court queried, “How wide a door shall we open here today. How often do

individuals, domestic partners, walk in and pay for their bail *** and go on to pay for an attorney.”

The court was concerned that if it found that paying a $1000 deposit was a per se conflict, then

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“any time somebody, the victim of the alleged offense, is involved in obtaining money or paying

money to some attorney, that that’s a conflict.” Also, Gottreich did “his rock-solid best” at trial,

and there had been a large amount of evidence against defendant.

¶ 21 Defendant timely appealed.

¶ 22 II. ANALYSIS

¶ 23 On appeal, defendant contends that he is entitled to postconviction relief because his trial

attorney had a per se conflict of interest, in that Hall, the victim, hired and paid Gottreich $1000

to represent defendant and Gottreich knew that Hall was the victim. Further, defendant asserts that

neither Gottreich nor the associate who met with Hall ever told the court that Hall had hired

Gottreich or brought a potential conflict to the court’s attention. Defendant also argues that the

court never obtained a knowing waiver of the conflict from defendant.

¶ 24 The Post-Conviction Hearing Act (Act) provides a three-stage process for a defendant to

challenge his conviction. 725 ILCS 5/122-1 et seq. (West 2012). To obtain relief, a defendant must

show that he suffered a substantial deprivation of his federal or state constitutional rights in the

proceedings that produced the conviction or sentence being challenged. People v. Pendleton,

(2006). At the third-stage evidentiary hearing, “the trial court hears evidence and

determines whether, based on that evidence, the defendant is entitled to relief.” People v. Garcia,

. The defendant bears the burden of making a substantial showing

of a constitutional violation. Pendleton,

. The trial judge is in the best position to

observe and weigh the credibility of witnesses testifying at the evidentiary hearing. People v. Ortiz,

(2008). Findings of fact are reviewed for manifest error (id.), which is an error

that is clearly evident, plain, and indisputable (Garcia,

).

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¶ 25 The sixth amendment of the United States Constitution guarantees the right to effective

assistance of counsel (People v. Spreitzer,

(1988)), which includes the right to

conflict-free representation (People v. Poole,

). There are two types

of conflicts: per se and actual.

In this appeal, defendant only raises a per se conflict, which is a

conflict “in which facts about a defense attorney’s status *** engender, by themselves, a disabling

conflict.” (Emphasis in original.) (Internal quotation marks omitted.) People v. Hernandez,

(2008) (Juan Hernandez).

¶ 26 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.”

Our supreme court has identified

three types of per se conflicts: (1) when defense counsel has a prior or contemporaneous

association with the victim, the prosecution, or an entity assisting the prosecution; (2) when

defense counsel contemporaneously represents a prosecution witness; and (3) when defense

counsel was formerly a prosecutor and was personally involved in prosecuting the defendant.

. If there is a per se conflict, the defendant is not required show that his counsel’s

performance was at all affected by the conflict.

. Prejudice is presumed. People v.

Fountain,

(opinion of Holdridge, J.). “[U]nless a defendant waives

the right to conflict-free counsel, a per se conflict is grounds for automatic reversal.” (Internal

quotation marks omitted.) People v. Cleveland,

. Automatic

reversal is warranted because “ ‘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.’ ” Fountain,

(opinion of Holdridge, J.) (quoting Juan Hernandez,

). Where the

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record shows that the facts are undisputed, we review de novo the question of whether a per se

conflict exists. Juan Hernandez,

.

¶ 27 The question here is whether Gottreich’s connection to Hall falls into the first category of

per se conflicts—“a prior or contemporaneous association with the victim, the prosecution, or an

entity assisting the prosecution” (id. at 143). Hall paid Gottreich $1000 to represent defendant.

Defendant does not contend that Gottreich actually represented Hall.

¶ 28 The case most analogous to this matter is People v. Palmer,

(1986).

In Palmer, defense counsel asked for leave to withdraw because the defendant’s wife, who retained

him as the defendant’s attorney, was the complaining witness and a potential State’s witness

against the defendant.

. The trial court denied the attorney’s motion to withdraw.

On

appeal, this court found that defense counsel “labored under, at the least, a possible conflict of

interest in his representation of [the] defendant.”

. The court stated that to determine

whether there is a conflict of interest, a court should make “a realistic appraisal of defense

counsel’s professional relationship to someone other than the defendant under the circumstances

of each case.”

. The court noted that the positions of the defendant and his wife “were

clearly antagonistic.”

. Although the wife had at times indicated that she wanted the

defendant’s charges dropped, at other times she wanted the State to prosecute the defendant.

The court concluded that at least a potential conflict was present and reversed the defendant’s

conviction and remanded for a new trial.

¶ 29 Although Palmer characterizes the conflict of interest at issue as a possible or potential

conflict, the court was actually identifying a per se conflict. See Spreitzer,

(noting

confusing and inconsistent use of terms to describe conflicts of interest, including such terms as

per se conflict, potential conflict, and possible conflict). The Palmer court applied the remedy for

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per se conflicts—automatic reversal without a finding of prejudice. See Palmer,

; see also Juan Hernandez,

(if there is a per se conflict, a defendant does

not have to show he was prejudiced by the conflict). The situation here is nearly identical to the

situation in Palmer. The victim, who was a key State witness, paid defendant’s attorney fees. Hall’s

and defendant’s positions were clearly antagonistic. Gottreich labored under a per se conflict of

interest. See People v. Sanchez,

(1987) (per se conflicts arise when

“defense counsel has professional commitments to others having interests clearly antagonistic to

those of the accused”). Also, that Gottreich’s associate may have taken the money from Hall does

not change the result. See Fountain,

(opinion of Holdridge, J.) (“if

one member of a private law firm has a per se conflict of interest, that conflict is imputed to all

other members of the law firm, regardless of whether any of those other members had any personal

involvement in the conflicting representation”).

¶ 30 Further supporting a per se conflict here is our supreme court’s broad language defining

such conflicts, which include circumstances beyond counsel’s representation of another person

adverse to the defendant. In Juan Hernandez,

, the court stated that the first

category of per se conflicts arises from “counsel’s association, relationship, commitment,

professional connection, or some tie with the victim, a party, or the prosecution, which is either

prior or current or previous or current.” (Internal quotation marks omitted.) Also, the “very nature

of a per se conflict rule precludes inquiry into the specific facts of a case,” and the fact of actual

commitment to another, and not the degree or extent of the commitment, dictates applying the

per se rule.

at 150-51 (citing People v. Lawson,

(1994)). Hall’s payment

of the fee to Gottreich’s firm—even though it was only a portion of the total—falls within the

definition set out in Juan Hernandez.

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¶ 31 The State’s sources of support are not persuasive. The State primarily relies on People v.

Graham,

(2003), and People v. Hernandez,

(1993) (Miguel

Hernandez). In Graham,

, the defendant contended that his trial attorney labored

under a per se conflict of interest because his attorney previously represented a prosecution

witness, named Johnny, who was also the son of one of the victims. At the request of Johnny’s

uncle, the defendant’s attorney went to the police station after a murder when Johnny had been

taken there for questioning.

In the trial court, the attorney maintained that he did not speak to

Johnny and left the police station after he was told that Johnny was not a suspect.

. The

attorney was not paid by the victim’s family.

Our supreme court found that there was no per se

conflict of interest where the “record [was] devoid of any evidence” that the attorney agreed to

represent Johnny and the attorney and Johnny did not have an attorney-client relationship.

. Graham addressed an attorney’s purported representation, but here, there is no allegation that

Gottreich represented Hall. As discussed above, ties other than an attorney-client relationship can

create a per se conflict of interest. Graham does not address the question before us—whether the

fact that the victim paid the defendant’s attorney creates a per se conflict of interest.

¶ 32 Turning to the State’s other case, in Miguel Hernandez,

, the

defendant contended that his attorney had a per se conflict of interest because a State’s witness

paid his attorney fees and the attorney had previously been the witness’s divorce lawyer. The court

found there was no per se conflict of interest, noting that the attorney’s representation of the

witness in her divorce case “terminated long before he became [the] defendant’s attorney.”

. The court also stated that the witness was not the victim of the defendant’s crime.

.

The court further stated that the defendant had not cited any authority “supporting the position that

the mere payment of [the] defendant’s attorney fees coupled with testifying as the State’s witness,

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without further facts establishing obvious antagonism, constitutes a per se conflict of interest.”

Here, there is a key fact that was missing from Miguel Hernandez. Hall was the victim, and so

defendant and Hall were antagonistic in ways that the defendant and the witness in Miguel

Hernandez were not.

¶ 33 Having concluded that Gottreich had a per se conflict, the next question is whether

defendant waived his right to conflict-free counsel. See Juan Hernandez,

(per se

conflict is grounds for automatic reversal unless the defendant waived his right to conflict-free

counsel). To be valid, a waiver must be knowing, meaning that the defendant was admonished as

to the existence of the conflict and its significance. People v. Acevedo,

. Courts indulge “every reasonable presumption against *** waiver.” (Internal quotation

marks omitted.) Lawson,

. Below, the circuit court posited that defendant knew

that Hall had paid Gottreich. That is insufficient. Gottreich never brought the conflict to the court’s

attention, and there is no evidence that defendant was informed of how that conflict could affect

his representation. See Acevedo,

(the defendant was not advised

of the significance of the conflict where counsel never explained to the court what information he

had provided to the defendant about the ramifications of the conflict and the defendant did not

indicate “that he knew the possible impact that the conflict could have on counsel’s ability to

zealously represent him”); Poole,

(the defendant was not

adequately informed of the significance of the conflict where the record did not reveal “whether

[he] was advised of the conflict in a way he might understand how it could affect his

representation”). Because the record does not indicate that defendant knowingly waived the

conflict, reversal and a new trial are required.

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¶ 34 The circuit court expressed concern about opening the door to claims for the many other

instances where victims pay defendants’ legal fees. Yet, that is “a risk that this court is prepared

to take to ensure adequate representation for defendants.” (Internal quotation marks omitted.)

Cleveland,

(citing People v. Coslet,

(1977)).

That a per se conflict exists does not mean that victims can never pay defendants’ attorney fees.

All Gottreich had to do in this case was inform the court of the conflict, rather than decide for

himself that the conflict was not a problem. The trial court could then have secured the necessary

waiver after an informed decision from defendant.

¶ 35 III. CONCLUSION

¶ 36 For the foregoing reasons, we reverse the circuit court’s denial of defendant’s third-stage

postconviction petition, reverse defendant’s conviction, and remand for a new trial.

¶ 37 Reversed and remanded.

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No. 1-17-1484

Cite as: People v. Carr,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 11-CR- 14557; the Hon. Nicholas Ford, Judge, presiding.

Attorneys James E. Chadd, Patricia Mysza, and Deborah Nall, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. for Spellberg and Noah Montague, Assistant State’s Attorneys, of Appellee: counsel), for the People.

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