FIFTH DIVISION AUGUST 6, 2021

No. 1-19-2180

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 05 CR 352 ) JERRELL MATTHEWS, ) Honorable ) Arthur F. Hill, Jr., Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

JUSTICE CUNNINGHAM delivered the judgment of the court. Presiding Justice Delort and Justice Hoffman concurred in the judgment.

ORDER

¶1 Held: The trial court’s judgment denying the defendant leave to file a successive postconviction petition is reversed because the defendant adequately alleged facts demonstrating cause and prejudice.

¶2 On June 20, 2019, the defendant-appellant, Jerrell Matthews, filed a pro se motion seeking

to file a successive postconviction petition in the circuit court of Cook County. The petition alleged

that the defendant had only recently learned that his trial counsel had conflicts of interests which

counsel never disclosed to the defendant during his representation and trial. The circuit court

denied the defendant leave to file his successive postconviction petition, and the defendant now No. 1-19-2180

appeals. For the reasons that follow, we reverse the judgment of the circuit court of Cook County

and remand the case for further proceedings.

¶3 BACKGROUND

¶4 In 2007, the defendant was convicted of the first degree murder of Dushawn Shelby and

was sentenced to 50 years’ imprisonment. On June 20, 2019, the defendant filed a motion for leave

to file his second successive postconviction petition, which is the subject of this appeal. This case

has a long procedural history, so in the interest of clarity and brevity, we will present only the facts

pertinent to resolution of the issues now before us. For a full recitation of facts leading up to the

defendant’s conviction and sentence, see People v. Matthews,

.

¶5 In April 2007, the defendant’s bench trial commenced for the murder of Dushawn Shelby.

The defendant was tried separately from his codefendant Dushawn Bradley. 1 Derrell Wilson, who

was also known as Tony Wilson, testified at the defendant’s trial. Mr. Wilson claimed that, in

September 2004, he routinely sold cocaine at the intersection of 87th and Sangamon Streets in

Chicago, and that the defendant and codefendant Bradley also sold cocaine nearby. Mr. Wilson’s

cousin, Dushawn Shelby (the victim), did not sell drugs, but would sometimes accompany Mr.

Wilson while he did. In September 2004, the defendant confronted Mr. Wilson and Mr. Shelby,

and warned them not to sell drugs at that location again.

¶6 According to Mr. Wilson, a few days later, on September 16, 2004, Mr. Wilson was again

selling drugs at the corner of 87th and Sangamon Streets while Mr. Shelby was at a nearby candy

store with an individual named Lorenzo Dixon. Mr. Wilson saw codefendant Bradley and someone

whom he knew as “Nine–O” wearing gloves and carrying a bag. He assumed that they were

1 Both the victim and the codefendant share the same first name.

-2- No. 1-19-2180

carrying guns. Mr. Wilson then went to the candy store, got Mr. Shelby and Mr. Dixon, and all

three men walked to 87th and Morgan Streets, where they encountered codefendant Bradley and

“Nine–O.” Codefendant Bradley pulled a gun out of his pocket, and Mr. Wilson fled while Mr.

Shelby ran behind him. As Mr. Wilson and Mr. Shelby entered a nearby alley, the defendant

arrived in a red car, pointed a gun at them, and fired five or six shots. Mr. Wilson then ran into a

nearby yard. He noticed that Mr. Shelby was no longer behind him and returned to the alley where

he saw Mr. Shelby lying on the ground. He also noticed that the defendant was still there.

¶7 On July 1, 2005, Mr. Wilson signed a letter in the presence of defense counsel, stating that

he did not see the shooter’s face or a red car. Mr. Wilson later explained at trial, that the facts

contained in the letter were untrue, and that he signed it because “Nine–O” had visited his home a

number of times before the trial and offered him $5,000.

¶8 The defendant’s theory of defense at trial was that he was at a friend’s house playing video

games when the shooting occurred.

¶9 At the close of the trial, the trial court stated that it believed, based on Mr. Wilson’s

testimony, that the defendant was the person in the red car who committed the shooting. The trial

court found the defendant guilty of the first degree murder of Mr. Shelby and sentenced him to 50

years’ imprisonment. 2

¶ 10 On direct appeal, the defendant argued that the trial court denied him a fair trial by

improperly admitting evidence of other crimes, specifically, his involvement in drug activity. On

September 4, 2009, this court affirmed the defendant's conviction and sentence on direct appeal.

2 Codefendant Bradley was acquitted of all charges in his trial.

-3- No. 1-19-2180

See People v. Matthews, No. 1–07–2407 (2009) (unpublished order under Supreme Court Rule

23).

¶ 11 On April 23, 2010, the defendant filed a pro se postconviction petition alleging ineffective

assistance of trial and appellate counsel, as well as insufficiency of the evidence in his conviction.

The trial court summarily dismissed the petition, finding it to be frivolous and patently without

merit. On June 12, 2012, this court affirmed the trial court’s summary dismissal of the defendant’s

pro se postconviction petition. See People v. Matthews, 2012 IL App (1st) 102191–U.

¶ 12 On April 23, 2012, the defendant filed a petition pursuant to section 2–1401 of the Code

of Civil Procedure (735 ILCS 5/2–1401 (West 2012)), asserting that Mr. Wilson gave perjured

testimony at trial. The trial court dismissed that petition. This court vacated the trial court’s

dismissal of that petition as premature. Matthews, 2014 IL App (1st) 121913–U. The Illinois

Supreme Court reversed this court’s ruling and affirmed the trial court’s dismissal of the

defendant’s section 2-1401 petition. People v. Matthews,

.

¶ 13 On February 20, 2013, the defendant filed his first motion for leave to file a successive

postconviction petition. He alleged, among other things, that his trial counsel was ineffective for

failing to adequately question “Nine–O” in order to undermine Mr. Wilson’s testimony. The

defendant also argued that counsel should have obtained supporting affidavits from people who

witnessed Mr. Wilson’s recantation. The trial court denied the defendant leave to file the

successive postconviction petition. On June 30, 2017, this court affirmed that judgment. People v.

Matthews,

.

¶ 14 On June 20, 2019, the defendant filed a pro se motion for leave to file another successive

postconviction petition, which is the subject of the instant appeal. In his proposed petition attached

-4- No. 1-19-2180

to the motion, the defendant alleged that in March 2018, he learned for the first time, from a friend

named Rushon Avant, that his trial counsel, Leonard Schultz, had represented codefendant Bradley

when he was first interrogated by the police in the murder case which underpins this entire

prosecution. The defendant argued this created a conflict of interest in attorney Schultz’s

representation. In support of his argument, the defendant attached a page from the hearing on

codefendant Bradley’s motion to suppress his statement. The page was part of a transcript of a

hearing in which a Chicago police detective testified that an attorney named “Bud Schultz” (which

was the nickname used by Leonard Schultz) had called him on December 6, 2004, after

codefendant Bradley had been arrested, to inform the detective that he represented codefendant

Bradley.

¶ 15 The defendant further alleged in his petition that in March 2018, he also learned from Mr.

Avant that while attorney Schultz was representing the defendant in his murder trial, attorney

Schultz was also representing Tarzay Wilson, on an unrelated drug charge. Ms. Wilson is the

mother of codefendant Bradley and the cousin of Mr. Shelby, the victim. The defendant claimed

that Ms. Wilson was listed as a witness for the State in his murder trial. He pointed out that since

attorney Schultz had represented her in a separate drug case during the same time period in which

attorney Schultz was defending him, attorney Schultz was in a conflicted position in light of Ms.

Wilson being identified as a witness for the State. The defendant attached printouts from the Clerk

of the Circuit Court of Cook County’s online docketing system, which showed that Ms. Wilson

was facing drug possession charges in a separate case that began in May 2003; that she pled guilty

to those charges on January 12, 2005; and that she was represented on those charges by attorney

Schultz.

-5- No. 1-19-2180

¶ 16 The defendant attached an affidavit from Rushon Avant to his petition. In the affidavit, Mr.

Avant attested that he had been “represented over the years, before his death, by attorney Leonard

‘Bud’ Schultz.” The affidavit explained that he had been referred to attorney Schultz by the

defendant after the defendant’s murder trial. The affidavit stated that during a conversation

between Mr. Avant and attorney Schultz, the topic of the defendant was raised. The affidavit

asserted that during that conversation, attorney Schultz “mentioned” that he had “recently”

represented “the cousin of the victim” in the defendant’s murder case. (As already noted, the victim

in this case, Dushawn Shelby, was a cousin of codefendant Bradley and Ms. Wilson.) Mr. Avant

then went to prison for 10 years. After his incarceration, he had a conversation with the defendant

and mentioned that attorney Schultz told him he had “represented the victim’s cousin.” The

defendant told Mr. Avant that he had not known that, and “in fact he had filed [an] ineffective

assistance of counsel [claim against] his attorneys for not putting Tarzay Wilson 3 on the stand at

his trial.”

¶ 17 In his petition, the defendant argued that, “[t]he fact that [counsel] Schultz never disclosed

this representation of [Ms.] Wilson,” who was a named witness for the State in the defendant’s

case, “raises obvious red flags” and “may account for the reason why [attorney] Schultz did not

investigate [Ms.] Wilson or call her as a witness for [the] defense.” The defendant explained that

30 minutes after Mr. Shelby was shot and killed, somebody shot codefendant Bradley’s brother in

retaliation for the shooting of Mr. Shelby. One of the main suspects in that second shooting was

Mr. Wilson, who testified against the defendant and who is related to codefendant Bradley and

3 Tarzay Wilson is the mother of the codefendant Bradley.

-6- No. 1-19-2180

Ms. Wilson. The defendant claimed that had attorney Schultz not been representing him and Ms.

Wilson simultaneously, attorney Schultz likely would have called her and/or codefendant Bradley

as witnesses to testify about their family conflicts. The defendant argued this would have supported

his theory of defense that codefendant Bradley was the person who shot and killed Mr. Shelby.

The defendant therefore averred that attorney Shultz’s representation of codefendant Bradley and

Ms. Wilson was a conflict of interests. He further pointed out that he was not aware of the conflict

until his conversation with Mr. Avant in 2018. He concluded that attorney Schultz’s representation

of Ms. Wilson, codefendant Bradley, and himself within the same time period rendered attorney

Schultz’s representation of the defendant ineffective.

¶ 18 On August 9, 2019, the trial court denied the defendant leave to file his successive

postconviction petition. In its written order, the trial court noted that Ms. Wilson was never an

actual witness for the State in the defendant’s trial as the State ultimately did not call her to testify

although she had been named as one of its witnesses. The trial court concluded that under those

circumstances, there could not be a per se conflict of interest. The court further stated that “the

relationship that [the defendant] alleges to have taken place between [Ms.] Wilson and [attorney]

Schultz cannot be described as contemporaneous” because the defendant “never provides an exact

or general date of when the representation took place.”

¶ 19 The trial court also found that there was no actual conflict regarding Ms. Wilson, noting

the defendant’s “allegations that there existed a relationship between [Ms.] Wilson and [attorney

Schultz] [are] conclusory.” Addressing the defendant’s assertion that Ms. Wilson could have

testified to the “unrelated family conflict,” the trial court found that attorney Schultz “not bringing

this out at trial is not inherently defective of him” given the evidence presented at trial about the

-7- No. 1-19-2180

drug-territory dispute. The trial court stated: “[The defendant] has not tied together how at the time

of his trial, his attorney was conflicted by his representation of [Ms. Wilson], and counsel’s

decisions were attributable to that connection. [The defendant] has not demonstrated an actual

conflict of interest exists between the two.”

¶ 20 Turning to the defendant’s arguments concerning codefendant Bradley, the trial court

found that the defendant made “conclusory” statements. The trial court stated that a “conclusory

analysis of the relationship between [codefendant] Bradley and attorney [Schultz] would not fit

under any of the situations allowed for a per se conflict.” The trial court also held that, without

establishing that a relationship existed between codefendant Bradley and attorney Schultz, beyond

what appeared to have been a fleeting representation at an initial interrogation, the defendant could

not show an actual conflict of interests.

¶ 21 The trial court noted that the defendant must meet the cause-and-prejudice test in order to

advance his successive postconviction petition. The court concluded that while the defendant may

be able to establish cause as related to attorney Schultz’s representation of Ms. Wilson, since he

only recently learned of it, he could not establish prejudice. The trial court additionally noted that

the facts which gave rise to the issue pertaining to codefendant Bradley were known to the

defendant at the time he filed his first postconviction petition. Therefore, he also could not establish

cause to file his successive postconviction petition on that aspect of the issue. The defendant

subsequently appealed the trial court’s denial of his motion for leave to file a successive

postconviction petition.

-8- No. 1-19-2180

¶ 22 ANALYSIS

¶ 23 We note that we have jurisdiction to consider this matter, as the defendant filed a timely

notice of appeal. Ill. S. Ct. Rs. 606, 651(a) (eff. July 1, 2017).

¶ 24 The defendant presents the following issue: whether the trial court erred in denying him

leave to file his successive postconviction petition. The defendant argues that his petition presented

evidence which showed that attorney Schultz labored under two different undisclosed conflicts of

interests at the defendant’s trial: first, that he represented codefendant Bradley in an interrogation

related to the murder in question, during which codefendant Bradley implicated the defendant and

showed detectives where to find the defendant in order to arrest him; and second, that attorney

Schultz contemporaneously represented Tarzay Wilson in a separate case, knowing that she was

the mother of codefendant Bradley, the cousin of the victim Mr. Shelby, and also a named witness

for the State in the defendant’s trial.

¶ 25 The Act provides a method by which convicted persons under a criminal sentence can

assert that their constitutional rights were violated. 725 ILCS 5/122-1 (West 2016); People v. Allen,

, ¶ 29. The Act generally contemplates the filing of only one

postconviction petition, and any claim not presented in the initial petition is generally considered

forfeited. 725 ILCS 5/122-1(f) (West 2016); Allen,

, ¶ 29. However, a

court may grant a defendant leave to file a successive postconviction petition if he demonstrates

cause for failing to raise the claim in his earlier petition and prejudice resulting from that failure.

725 ILCS 5/122-1(f) (West 2016); Allen,

, ¶ 32. Under this cause-and-

prejudice test, a defendant must establish both cause and prejudice. Allen,

, ¶ 32. “ ‘Cause’ is established when the defendant shows that ‘some objective factor

-9- No. 1-19-2180

external to the defense impeded his ability to raise the claim’ in his original postconviction

proceeding.” Id. (quoting People v. Tenner,

(2002)). And “ ‘[p]rejudice’ is

established when the defendant shows that the ‘claimed constitutional error so infected his trial

that the resulting conviction violated due process.’ ”

(quoting Tenner,

). If the

defendant makes a prima facie showing of cause and prejudice, the court should grant the

defendant leave to file his successive postconviction petition. People v. Ames,

. At this point in the proceedings, the defendant does not have to prove his allegations,

his burden is simply to ensure that they are properly pled. People v. Smith,

.

We review the trial court's decision to deny leave to file a successive petition de novo, accepting

all well-pled facts and affidavits as true. People v. Edwards,

.

¶ 26 The basis of the defendant’s successive postconviction petition in this case is that his trial

counsel labored under conflicts of interests during his representation of the defendant. A criminal

defendant’s constitutional right to effective assistance of counsel encompasses the right to conflict-

free representation, which means assistance by an attorney whose allegiance to his client is not

diluted by conflicting interests or inconsistent obligations. People v. Rhodes,

. There are two types of conflicts of interest: actual conflicts of interest and per

se conflicts of interest.

An actual conflict of interest generally involves joint or multiple

representation and occurs when the conflict adversely affects the attorney’s trial performance. Id.

¶ 13. Conversely, a per se conflict of interest exists automatically in three types of situations: (1)

where defense counsel has a prior or contemporaneous relationship with a victim, 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

- 10 - No. 1-19-2180

personally involved with the prior prosecution of the defendant. Id. ¶ 14.

¶ 27 We first review the conflict of interest alleged by the defendant pertaining to codefendant

Bradley. As the trial court pointed out, the facts related to attorney Schultz’s representation of

codefendant Bradley were known to the defendant at the time he filed his first postconviction

petition. Indeed, the defendant concedes that the document he attached in support of his argument

-- the page from the hearing on codefendant Bradley’s motion to suppress in which a Chicago

police detective testified that an attorney named “Bud Schultz” had called to inform him that he

represented codefendant Bradley -- was available to the defendant when he filed his first

postconviction petition. He argues, nevertheless, that he may not have realized, at that time, “that

his attorney [Leonard Schultz] and Bud Schultz were the same person, even if he had read [the]

transcript.”

¶ 28 However, the defendant’s petition did not provide any specific explanation or support for

his assertion that he did not know and could not have previously discovered his attorney’s dual

role. Merely pleading in a speculative manner, that he may not have realized that attorney Schultz

and Bud Schultz were the same person, is inadequate. See People v. Blair,

(2005) (broad, conclusory allegations unsupported by the record are not allowed in postconviction

petitions). In fact, the defendant concedes that attorney Schultz referred to himself as “Bud”

Schultz the first time he appeared in the defendant’s case. Essentially, the defendant has not shown

why he was unable to raise his argument about attorney Schultz representing codefendant Bradley

in an interrogation before now. See People v. Evans,

(to show cause, a

defendant must identify an objective factor that impeded his ability to raise a specific claim during

his initial postconviction proceedings). Thus, the defendant has failed to establish the cause prong

- 11 - No. 1-19-2180

of the cause-and-prejudice test to file his successive postconviction petition on this argument as

related to codefendant Bradley. Since both prongs must be established, we need not address the

prejudice prong of the defendant’s argument as related to codefendant Bradley.

¶ 29 Next, we turn to the defendant’s argument concerning attorney Schultz’s representation of

Ms. Wilson. The State concedes that the cause prong of the cause-and-prejudice test is satisfied as

to Ms. Wilson because the defendant established that he was not aware of the facts surrounding

attorney Schultz’s representation of Ms. Wilson until Mr. Avant told him about the representation

in March 2018. The defendant therefore could not have raised this argument previously.

Consequently, our analysis turns on the prejudice prong.

¶ 30 Initially, we will clarify the background facts and dates surrounding the defendant’s

argument pertaining to Ms. Wilson, as this case involves many individuals, relationships, and

procedural interconnections. The shooting of Mr. Shelby occurred on September 21, 2004, and an

arrest warrant was issued for the defendant that same day. The defendant was arrested on

December 19, 2004. Attorney Schultz filed his first appearance on behalf of the defendant on

December 18, 2004, the day before the defendant was arrested. But two days later, on December

20, 2004, a public defender filed an appearance on behalf of the defendant. On January 11, 2005,

the defendant was arraigned and a public defender was appointed to represent him. On April 7,

2005, the public defender informed the court that attorney Schultz was once again going to file an

appearance to represent the defendant. On April 8, 2005, the public defender was granted leave to

withdraw and attorney Schultz filed an appearance to represent the defendant. During discovery

in preparation for the defendant’s trial, Ms. Wilson was listed on the State’s witness list. On April

16, 2007, the defendant’s bench trial began, in which he was represented by attorney Schultz.

- 12 - No. 1-19-2180

Ultimately, the State did not call Ms. Wilson to testify.

¶ 31 Ms. Wilson had been arrested in an unrelated drug case in 2003, in which she was

continuously represented by attorney Schultz. She pled guilty in that case on January 12, 2005.

However, Ms. Wilson was subsequently charged with having violated her probation. Probation

violation proceedings commenced in the circuit court of Cook County and Ms. Wilson completed

her probation in March 2007.

¶ 32 The defendant’s pro se petition clearly provided enough information to establish that there

was an overlap in attorney Schultz’s representation of the defendant and his representation of Ms.

Wilson; notably, an overlap of which the defendant was never made aware. In particular, the

defendant explicitly pled: that attorney Schultz represented Ms. Wilson during the same time

period when was representing the defendant in his murder trial; that Ms. Wilson was a named

witness on the State’s list of witnesses in the defendant’s murder trial; and that Ms. Wilson had a

stake in the defendant’s conviction. The defendant inferred that if he was found guilty of the

murder, it reduced the chances of Ms. Wilson’s son, codefendant Bradley, being found guilty. As

we have explained at this point in the proceedings, the defendant is not required to prove his well-

pled allegations.

¶ 33 Thus, taking these well-pled allegations as true, which we must at this stage (People v.

Johnson,

), we find that the defendant made a prima facie showing

that attorney Schultz operated under a per se conflict of interest during the defendant’s trial. The

defendant accordingly should be allowed to advance his petition to the next stage of the

proceedings and have the opportunity to present the proof necessary at an evidentiary hearing.

Indeed, our supreme court has made clear that, at this stage in the proceedings, a defendant is only

- 13 - No. 1-19-2180

required to plead cause and prejudice in order to file a successive postconviction petition:

“From a practical standpoint, if a petitioner is required to establish cause

and prejudice conclusively prior to being granted leave to file a successive petition,

it may render the entire three-stage postconviction process superfluous. Section

122–1(f) does not provide that a petitioner is entitled to relief upon satisfaction of

the cause-and-prejudice test. It only gives a petitioner an avenue for filing a

successive postconviction petition. The legislature clearly intended for further

proceedings on successive postconviction petitions.”

Smith,

.

¶ 34 The State makes much of the fact that Ms. Wilson was only a named witness, and that she

never actually testified at the defendant’s trial. The State claims that, consequently, the defendant

could never prove a per se conflict of interest. Yet this argument ignores the well-established

principle that, a possible conflict is enough for purposes of the per se rule. People v. Lawson,

(1994). And when determining whether a possible per se conflict arose from

defense counsel’s representation of a named witness, the question is whether the named witness

stood to benefit from the defendant’s conviction. People v. Morales,

(2004).

Here, we need not speculate about whether Ms. Wilson stood to benefit from the defendant’s

conviction. Ms. Wilson, quite importantly, is the mother of codefendant Bradley, who was tried

separately from the defendant and who was the only other suspect in the murder. Notably,

codefendant Bradley was acquitted of all charges in this case. It is reasonable to infer that Ms.

Wilson would benefit if the defendant, rather than her son, was convicted.

¶ 35 Further, we find the reasoning from Justice Kilbride’s concurrence in Morales to be

- 14 - No. 1-19-2180

instructive. It emphasizes that it is not always possible to know, at the time of disclosure, if a

named witness will end up testifying.

(Kilbride, J., concurring). This is important to

consider since, under the State’s argument, the distinction between a conflict and a possible

conflict merely comes down to whether the witness is ultimately called to testify by the State. The

defendant in this case did not know and could not have known whether Ms. Wilson was going to

be called as a witness until the State rested. Moreover, attorney Schultz never disclosed his

representation of Ms. Wilson to the defendant at any time. Simply put, had the State called Ms.

Wilson to testify, that would have been considered a per se conflict. Since the defendant was not

aware of the dual representation, he could not have knowingly waived the conflict.

¶ 36 Considering that the defendant pled facts detailing that attorney Schultz represented Ms.

Wilson during the same time period he represented the defendant; that Ms. Wilson was a named

witness for the State; that she stood to benefit from the defendant’s conviction; and that the

defendant was never made aware of attorney Schultz’s simultaneous representation of Ms. Wilson;

we find that the defendant adequately pled a claim for a per se conflict of interest. See Smith,

. The defendant therefore should be allowed to move forward to the next stage of

postconviction proceedings. See People v. Domagala,

.

¶ 37 Thus, the trial court erred in denying the defendant leave to file his successive

postconviction petition. We emphasize that only the claim pertaining to the conflict related to Ms.

Wilson should advance in the trial court. “The cause and prejudice test is to be applied

to individual claims, not to the petition as a whole.” Edwards,

. At

an evidentiary hearing on remand, the defendant will have to prove his claim that a conflict of

interests existed during his trial due to attorney Schultz’s contemporaneous representation of Ms.

- 15 - No. 1-19-2180

Wilson, but he is entitled to have the opportunity to do so. We accordingly reverse the trial court’s

judgment dismissing the defendant’s successive postconviction petition and remand the case for

further proceedings consistent with this order and the Act.

¶ 38 CONCLUSION

¶ 39 For the foregoing reasons, we reverse the judgment of the circuit court of Cook County

and remand the case for further proceedings.

¶ 40 Reversed and remanded.

- 16 -