People v. Guerrero , 2023 IL App (1st) 211026-U ( 2023 )

2023 IL App (1st) 211026-USECOND DIVISION
February 14, 2023
No. 1-21-1026
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
Respondent-Appellee, ) Circuit Court of
) Cook County.
v. )
) No. 05 CR 1897801
JULIO GUERRERO, )
) Honorable
Petitioner-Appellant. ) Lawrence Flood,
) Judge Presiding.
)
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court.
Justices Ellis and Cobbs concurred in the judgment.
ORDER
¶1 Held: The circuit court erred in dismissing the petitioner’s postconviction petition at the
second stage of postconviction proceedings. While the petition failed to make a
substantial showing of defense counsel’s per se conflict of interest, it made a
substantial showing of both an actual conflict of interest and of counsel’s
constitutionally ineffective representation premised on his failure to investigate and
implicate alternative suspects in the crime.
¶2 After a jury trial in the circuit court of cook County, the petitioner, Julio Guerrero, was
No. 1-21-1026
found guilty of first-degree murder (720 ILCS 5/8-4, 9-1 (West 2006)) and sentenced to 48 year’s
imprisonment. The petitioner now appeals form the second-stage dismissal of his petition for relief
under the Post-Conviction Hearing Act 725 ILCS 5/122-1 et seq. (West 2010). He contends that
his petition should have been permitted to proceed to an evidentiary hearing because he made a
substantial showing that his trial counsel, Michael Monaco (Monaco), labored under a per se or
actual conflict of interest when he represented Jorge Uriarte (Uriarte) in the instant matter, prior
to the petitioner’s trial, and Robert Cardena (Cardena), in a separate murder trial while
contemporaneously representing the petitioner. In addition, the petitioner contends that trial
counsel was ineffective for failing to investigate Uriarte and Cardena as alternative suspects and
present evidence showing that they matched the eyewitnesses’ description of the shooter, had a
motive to kill the victim, and were members of a criminal enterprise that used influence to cover
up its crimes. For the following reasons, we affirm in part and reverse and remand in part.
¶3 I. BACKGROUND
¶4 Because the underlying facts of this case have already been adequately set forth in the order
involving the petitioner’s direct appeal (see People v. Guerrero, 403 Ill. App. 3d 1102 (2010)
(unpublished order pursuant to Illinois Supreme Court Rule 23)) we recite only those facts
necessary to the disposition of the issues raised by the petitioner’s postconviction petition.
¶5 On July 24, 2005, the petitioner was arrested together with Urirate and Cardena for his
involvement in the shooting of the victim Honor Huerta in a vacant parking lot at 4826 South
Loomis Boulevard. Uriarte and Cardena were subsequently released, and the petitioner was
charged with, inter alia, first degree murder. Three eyewitnesses to the shooting, Mitchell Rosas
(Mitchell), Mitchell’s brother, Michael Rosas (Michael), and Erik Calderon (Erik), testified at the
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petitioner’s trial. None of them identified the petitioner as the shooter. 1 Instead the petitioner was
convicted on the basis of purely circumstantial evidence.
¶6 At trial, all three witnesses testified that they were with the victim at about 2 a.m. on July
24, 2005. After purchasing beer at a local liquor store, Michael drove Mitchell, Erik, and the victim
to a vacant lot at 4826 South Loomis Boulevard.
¶7 Both Mitchell and Michael testified that as they drove into the lot, they saw two men
standing on Loomis Boulevard, one wearing a black shirt and the other one a white shirt. Both
averred that as they were exiting their van the two men walked separate ways, with the man in the
black shirt walking northbound on Loomis Boulevard, and the man in the white shirt walking
southbound. Once they exited the car, the victim walked towards Loomis Boulevard. As Mitchell
and Michael followed the victim, Mitchell saw the man in the white shirt come out from behind a
bush and pull out a gun. Both Mitchell and Michael heard the man in the white shirt scream “City
Knight, La Raza Killer” before they heard gunshots.
¶8 As soon as they heard the gunshots, Mitchell and Michael turned and fled the scene. As
they were running, they both heard about eight or nine shots.
¶9 After returning to the scene to look for his brother, Mitchell found the victim lying
motionless face down on the ground.
¶ 10 Michael testified that as soon as the gunshots stopped, he ran back to look for the victim.
As he was running towards Loomis Boulevard, he saw a police car and heard a police officer
instructing him to “stop.” Michael, however, continued running back to the scene. When he
reached Loomis Boulevard, he saw the man in the white shirt running towards the viaduct on 49th
1
Prior to trial, Michell, Michael, and Erik all viewed lineups, which including the petitioner. While Mitchell and
Michael identified the petitioner from the lineup, prior to trial, the circuit court suppressed their identifications as
suggestive because the police had paraded the petitioner in handcuffs in front of both witnesses prior to the lineup.
Erik did not identify anyone from the lineup.
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Street. Michael pointed towards the man in the white shirt and told the police officer that this was
the shooter.
¶ 11 At trial, both Mitchell and Michael testified that they could not identify the shooter.
Mitchell stated that he did not see the shooter’s face and instead, “just [saw] a white shirt. That’s
it.” Michael similarly stated that he did not see the shooter’s face but recalled that he was
“baldheaded” and “a little chunky.”
¶ 12 On cross-examination, Michael admitted that he did not know if the person in white
“actually was the one who shot.” He also conceded that he could not see peripherally north or
south beyond the vacant lot when he parked his van, as the lot was flanked by a house on either
side. He therefore did not know whether there were any other people north or south of the empty
lot around the time of the shooting.
¶ 13 On cross-examination, Mitchell, similarly, acknowledged that prior to the shooting, he lost
sight of the man in the white shirt and was therefore not certain if that man was the same one that
he later observed jump out of the bush with the gun.
¶ 14 The third eyewitness, Erik next testified that as they were parking in the vacant lot, he
observed only one person walking northbound on Loomis Boulevard. Erik averred that when the
victim exited the van and began to walk down the street, he did not pay much attention to him
because he was “grabbing the beer and closing the van.” As he closed the door, Erik heard someone
say, “City Knights” and then heard eight or nine gunshots that appeared to be coming from the
sidewalk near 48th Street and Loomis Boulevard. As soon as he heard the gunshots, Erik fled
towards the alley and into his friend’s house.
¶ 15 Erik was similarly unable to identify the shooter because he never saw the shooter’s face.
On cross-examination he further admitted that he could not recall whether the shooter was wearing
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dark or light clothing. In addition, Erik acknowledged that he viewed a lineup, which included the
petitioner, but could not identify the petitioner as the shooter.
¶ 16 Chicago Police Officer Patrick Johnson next testified that at about 2 p.m. on July 24,
2005, he was on patrol near 49th Street and Loomis Boulevard when he heard gunshots. Seconds
later, the officer saw and individual, whom he later identified as Michael, running across the
alley. Officer Johnson instructed Michael to “stop” but Michael continued running toward the
vacant lot and told the officer “They’re shooting at us.” Officer Johnson ran with Michael. When
they reached the sidewalk on Loomis Boulevard, Michael pointed southbound towards three
men, who were standing a half block away, just north of the viaduct on 49th Street, and told the
officer “They are right there.”
¶ 17 According to Officer Johnson all three men were “essentially the same height,” with the
same kind of “close-cropped” hairstyle and skin tone. Two of them had dark clothing, while one
was wearing a white shirt. Officer Johnson shined his flashlight on the three men, and observed
the man in the white shirt, whom he identified in court as the petitioner, shove an object into his
waistband. As the officer shined the light on the men, they ran in different directions.
¶ 18 Officer Johnson chased the petitioner under the viaduct and into a vacant lot. The
petitioner held onto the object in his waistband the entire time that he fled. When the officer
caught the petitioner, he tackled him face-down on the ground. For about a minute, the officer
struggled to handcuff the petitioner because the petitioner kept his hands under his body by his
waist. After eventually restraining the petitioner, Officer Johnson retrieved a Lugar 9-milimeter
semi-automatic pistol from the ground where the petitioner had been tackled. The gun’s top slide
was in a “lock position” indicating that every round had been fired.
¶ 19 On cross-examination, Officer Johnson admitted that when he first saw the petitioner, the
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petitioner did not have a gun in his hand.
¶ 20 On cross-examination, Officer Johnson also acknowledged that the two men that he saw
standing next to the petitioner under the viaduct, whom he later identified as Uriarte and
Cardena, were arrested together with the petitioner. Officer Johnson stated, however, that unlike
the petitioner, these two men were wearing “dark clothes.”
¶ 21 On cross-examination Officer Johnson also acknowledged that the white shirt worn by
the petitioner was a White Sox jersey, which contained the word “Chicago” in black and red
letters across the front and had dark blue and red markings around the neck and sleeves.
¶ 22 On cross-examination, Officer Johnson denied that when they reached the vacant lot, the
petitioner got on his knees and put his hands up, so that the officer could arrest him.
¶ 23 Additional evidence offered at the petitioner’s trial established that two bullets were
recovered from the victim’s body during the autopsy and that the police recovered nine spent
cartridge cases from a 9-milimeter semi-automatic pistol at the scene of the crime. No latent
fingerprints were found on any of those cartridges, the bullets, or the firearm recovered from the
petitioner. However, after comparison, it was determined that the two bullets and all nine spent
cartridge cases were fired from the same firearm recovered from the petitioner upon his arrest.
¶ 24 In addition, evidence at trial established that when they were brought to the police station,
the petitioner, Cardena, and Uriarte were all tested for gunshot residue. Forensic scientist Ellen
Connolly testified that she analyzed the gunshot residue kits administered to all three men and
could not conclusively determine that any of them had recently fired a gun. Connolly explained
that while she found one particle of gunshot residue on the petitioner’s hand and two particles on
his clothing (one on his jersey and one on his blue jeans) there were not enough particles to
conclude that he had fired a gun. She therefore opined that he “may not have discharged a
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firearm,” or that if he did, the particles were not detected, were not deposited, or were removed
by activity. With respect to Cardena and Uriarte, Connolly noted no gunshot residue on their
samples and similarly opined that they “may not have discharged a firearm” or, if they did, the
particles were removed by activity, not detected, or not deposited.
¶ 25 During the petitioner’s trial, the State also introduced into evidence a video recording of
the petitioner inside a police interview room where he was placed upon his arrest. That video
recording shows the petitioner alone in the room, wiping his hands inside his pants, and against
the wall until the watch sergeant comes into the room to reposition his handcuffs.2
¶ 26 At trial, the State also offered evidence by Chicago Police Detective Michael Rose. He
testified that La Raza is a street gang whose claimed territory includes the 4800 block of South
Loomis Boulevard, and that its rival gang the City Knights lay claim to territory located four
blocks away from the scene of the crime. Detective Rose described City Knights gang insignia to
include a grim reaper and a knight chess piece and testified that at the time of his arrest, the
petitioner had three such tattoos on his back– two large grim reapers and a large cross inlaid with
a knight chess piece.
¶ 27 On cross-examination, Detective Rose confirmed that a photograph depicting a tattoo of a
knight chess piece on Uriarte’s back was also a City Knights gang tattoo.
¶ 28 In addition, on cross-examination, Detective Rose acknowledged that he interviewed Erik
immediately after the shooting, and that contrary to Erik’s testimony at trial, at that time, Erik
told him that he had observed two men walking in separate directions on Loomis Boulevard, one
going north and the other going south, and that the shooter was “possibly” wearing a “dark
2
While the video recording is not part of the instant record on appeal, in its decision affirming the petitioner’s
conviction, this appellate court described the substance of the video recording in such a manner.
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colored top.”
¶ 29 In his case-in-chief, the petitioner presented two witnesses. Chicago Police Officer
Schemelar first testified that he was present for and assisted in the petitioner’s arrest. Contrary to
Officer Johnson’s trial testimony, Officer Schemelar averred that after Officer Johnson and
another officer chased the petitioner into an empty lot and ordered the petitioner to stop, the
petitioner obliged, slowed down, and raised both hands above his head, before he went to the
ground and was taken into custody. Officer Schemelar was not sure whether the petitioner was
“taken down" by Officer Johnson or whether he fell to the ground.
¶ 30 Licensed gunsmith and gun dealer Vern Trester next testified that while not trained in
chemistry or forensic science, he has testified as a firearms expert in several other trials. Trester
then explained how the firearm recovered from the petitioner operates and how it discharges
gunshot residue. He stated that after test-firing a firearm of the same model nine times, he saw a
“tremendous amount” of discharged gunpowder on his gloved hand.
¶ 31 On cross-examination, Trester acknowledged that he did not put the gun in his waistband
and run over a block, nor roll about on the ground prior to testing for gunshot residue. Tester also
admitted that “every gun, even the same model, is a little bit different.”
¶ 32 In rebuttal, the State recalled forensic scientist Connolly who testified that Tester’s glove
test was not a scientifically accepted method of testing gunshot residue because the gunpowder
he saw on the glove is not the same as the microscopic gunshot residue that she utilized in her
analysis.
¶ 33 The parties next proceeded with closing arguments. The State acknowledged that
Mitchell and Michael did not get a good look at the shooter’s face but argued that they knew “the
person in white” was the individual who “pulled the trigger.” The State pointed out that the
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petitioner was caught less than a minute after the shooting wearing a white shirt and in
possession of the murder weapon. In addition, the State emphasized that the shooter called
himself a “City Knight” and that the petitioner had City Knight tattoos on his back. As further
evidence of the petitioner’s guilty, the State pointed to the petitioner’s flight form the police, his
“struggle” to conceal the murder weapon and his attempt to wipe the gunshot residue off his
hands while in police custody.
¶ 34 Defense counsel, Monaco, on the other hand, argued that no witnesses had identified the
petitioner as the shooter, and that no one accurately described the White Sox jersey that the
petitioner was wearing upon his arrest. In addition, counsel argued that Erik was impeached by
his prior statement to Detective Rose that the shooter was “possibly wearing a dark” shirt.
¶ 35 Defense counsel argued that it was possible for “a person to receive a gun from another
person,” and stated that there could have been two people with white shirts at the scene of the
crime because none of the eyewitnesses could see on either side of the vacant lot, and therefore
did not know if there were any other people in the area.
¶ 36 To explain the petitioner’s possession of the murder weapon, defense counsel suggested
that that the petitioner got the firearm from someone else and “was told to bolt.” In support,
defense counsel highlighted the lack of gunshot residue found on the petitioner, noting that the
petitioner was tested very “thoroughly” but found to have only “two little specs” of gunshot
residue on his entire body (clothes and hands). While defense counsel acknowledged the
interview room video, he argued that the petitioner was not “clever enough” to wipe microscopic
gunshot residue off his hands and that the video in fact depicted him “putting his hands in his
pants *** like he need[ed] to urinate.”
¶ 37 In rebuttal, the State argued that Erik’s identification of the dark shirt could have been the
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dark parts of the petitioner’s White Sox jersey. In addition, they pointed out that the two other
individuals arrested with the petitioner could not have been the shooters because they were
dressed in black and tested negative for gunshot residue.
¶ 38 Following jury instructions and deliberations, the jury found the petitioner guilty of first-
degree murder.
¶ 39 Defense counsel subsequently filed a motion for a new trial. After that motion was
denied, the petitioner informed the court that he was in the process of hiring a new attorney
because his defense counsel, Monaco, had provided him with “ineffective assistance of counsel,”
by, inter alia, failing to offer any testimony at his trial from the two individuals who were also
arrested at the scene of the crime. The trial court denied the petitioner’s motion and subsequently
sentenced him to 48 years’ imprisonment.
¶ 40 The petitioner appealed his conviction challenging, inter alia, the sufficiency of the
evidence used to convict him. This court affirmed the petitioner’s conviction finding that the
circumstantial evidence offered at his trial was sufficient for the jury to find him guilty beyond a
reasonable doubt. People v. Guerrero, 403 Ill. App. 3d 1102 (2010) (unpublished order pursuant
to Illinois Supreme Court Rule 23), pet. for leave to appeal denied, 239 Ill. 2d 566 (2011).
¶ 41 On March 17, 2011, the petitioner filed the instant pro se petition for postconviction
relief, alleging: (1) actual innocence; (2) ineffective assistance of defense counsel based on
counsel precluding him from testifying at trial and (3) ineffective assistance of appellate counsel
for counsel’s failure to raise the ineffective assistance of trial counsel claim on direct appeal.
¶ 42 In support, the petitioner attached his own affidavit averring that if called to testify at his
trial he would have stated that on July 24, 2005, he and his “two associates” Uriarte and Carden
were socializing on the 4800 block of South Loomis Boulevard when they heard gunshots and
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saw people “running in different directions.” The petitioner and his friends could not determine
who was shooting or from where the shots were coming because they ended abruptly.
Afterwards, unaware that anyone had been shot, the petitioner and his friends were looking
around the general area when the petitioner “spotted a gun on the ground.” Although at first
hesitant, the petitioner ultimately decided to pick it up. As the petitioner and his associates were
discussing where the gun came from, whether it was the gun that the shots had come from and
whether it was wise for the petitioner to keep it or sell it, they were suddenly apprehended by the
police. The petitioner attested that he did not know who discarded the weapon, who used it, or
who shot and killed the victim in the instant case.
¶ 43 After the circuit court advanced the petition to the second stage of postconviction
proceedings, appointed counsel amended the petition on January 9, 2019. The amended petition
alleged that after the petitioner was arrested together with Uriarte and Cardena, defense counsel
Monaco arrived at the police station to represent Uriarte, after which both Uriarte and Cardena
were released, and the petitioner was charged with the victim’s murder. Thereafter, Monaco was
hired to represent the petitioner during his trial. Monaco subsequently represented Cardena in an
unrelated matter, while at the same time representing the petitioner. The amended petition
therefore alleged that Monaco’s prior representation of Uriarte and his concurrent representation
or Cardena violated the petitioner’s Sixth Amendment right to conflict-free representation.
¶ 44 In addition, the amended petition alleged that Monaco’s failure to investigate, to call as
witnesses and to attempt to implicate Uriarte and Cardena as the shooters at the petitioner’s trial
constituted ineffective representation. Specifically, the amended petition pointed out that Uriarte
and Cardena both matched the description of the shooter, as they were both bald, and of the three
Uriarte could best be described as “a little chunky,” as Michael had described the shooter. In
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addition, both Uriarte and Cardena were City Knights gang members. The amended petition
further alleged that Uriarte and Cardena were “notorious criminals” involved in a massive
criminal organization, which included members of both the Mexican cartel and the Chicago
Police Department, and therefore had the power to command the petitioner to take the gun for
them.
¶ 45 In support of these claims, the amended petition attached numerous documents including,
inter alia: (1) a general progress report (GPR) of the Chicago Police Department detailing
Monaco’s arrival at the police station to represent Uriarte upon his arrest; (2) documents showing
Monaco’s representation of Cardena on two separate and unrelated matters, one during the
petitioner’s trial; (2) the petitioner’s complaint to the Illinois Attorney and Disciplinary
Commission (ARDC), filed immediately after his conviction, alleging, that Monaco had labored
under a conflict of interest and failed to call two witnesses on his behalf, one of whom he
represented in an unrelated matter during the petitioner’s trial; (3) an April 30, 2008, letter from
attorney Thomas Moore to the petitioner indicating that he was hired by Uriarte’s brother, Hector
Uriarte (Hector) to represent the petitioner on appeal; (3) police reports indicating that Uriarte
and Cardena were both City Knights gang members; (4) photographs of the lineup viewed by
Erik, including Uriarte, Cardena and the petitioner, showing that of the three Uriarte was the
most “chunky”; (5) photographs of Uriarte’s City Knights gang tattoos; (6) a 2011 federal district
decision from the Northern District of Illinois granting the federal prosecutors motion to
disqualify Monaco from representing Uriarte’s brother Hector in a separate 2009 federal criminal
prosecution, in which the government charged, among others, Uriarte and Cardena, with
conspiring to commit “racketeering, kidnapping and other drug trafficking” offenses, which
found that Monaco had previously represented Hector and many of his codefendants for the past
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12 years; (6) Uriarte’s indictment for conspiracy in that 2009 case in the Northern District of
Illinois, which details the vastness of the conspiracy and the individuals involved; and (7) the
Seventh Circuit’s affirmance of Uriarte’s and Cardena’s convictions in that criminal conspiracy
case, detailing their use of violence and threats of violence to silence witnesses, victims and
others.
¶ 46 The State filed a motion to dismiss the amended petition arguing that the petitioner’s
claims were insufficient as a matter of law to establish a substantial violation of his constitutional
rights. First, the State argued that the petitioner failed to make a substantial showing of a per se
conflict of interest where the relationship between the petitioner, Uriarte, and Cardena did not
fall into any of the three categories of per se conflict of interest recognized by our supreme court.
In addition, the State argued that the petitioner failed to make a substantial showing of an actual
conflict of interest where: (1) Uriarte and Cardena were never charged and were therefore never
codefendants in the instant case; and (2) the petitioner failed to establish a plausible defense
strategy casting Uriarte and Cardena as alterative suspects much less a strategy employed due to
a conflict of interest.
¶ 47 In response to the State’s motion to dismiss, the petitioner conceded that trial counsel’s
representation of Uriarte and Cardena was not a per se conflict of interest, as the Illinois
Supreme Court limits such conflicts to three categories and “trial counsel’s representation ***
does not fall into any of these categories.” The petitioner nonetheless continued to argue that
counsel labored under an actual conflict of interest because Erik’s testimony indicated that he
changed his statement to Detective Rose that the shooter was wearing dark clothing, when he
realized that “it implicated two dangerous men.” The petitioner again cited to Uriarte’s 2009
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federal indictment as evidence that Uriarte used “threats” and “violence” to silence witnesses.
¶ 48 On March 29, 2021, after hearing arguments by the parties, the circuit court dismissed the
amended petition. The petitioner now appeals.
¶ 49 III. ANALYSIS
¶ 50 On appeal, the petitioner contends that the circuit court erred in dismissing his petition at
the second stage of postconviction review where he made a substantial showing that his counsel
labored under a conflict of interest and provided him with ineffective assistance. For the
following reasons, we agree.
¶ 51 At the outset, we set forth the well-established principles regarding postconviction
proceedings. The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010))
provides a means by which a criminal petitioner can assert that his conviction was a result of a
substantial deprivation of his constitutional rights under either the United States or Illinois
constitutions. People v. Tate, 2012 IL 11214, ¶ 8; see also People v. Hodges, 234 Ill. 2d 1, 9
(2009); People v. Peeples, 205 Ill. 2d 480, 509 (2002). A postconviction proceeding is not an
appeal from the judgment of conviction but is a collateral attack on the trial court proceedings.
Tate, 2012 IL 11214, ¶ 8. Accordingly, issues raised and decided on direct appeal are barred by
res judicata, and issues that could have been raised but were not, are forfeited. Id., ¶ 8.
¶ 52 A postconviction proceeding consists of three stages. Tate, 2012 IL 11214, ¶ 9. At the
first stage, the circuit court must independently review the petition, taking the allegations as true,
and determine whether “the petition is frivolous or is patently without merit.” 725 ILCS 5/122–
2.1(a)(2) (West 2010); see also People v. Pingelton, 2022 IL 127680, ¶ 32. A petition is frivolous
or patently without merit only where it has no arguable basis either in fact or law. People v.
Domagala, 2013 IL 11368, ¶ 32. If, just as here, the petition is not summarily dismissed at the
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first stage, it advances to the second stage of postconviction proceedings.
¶ 53 At the second stage, an indigent petitioner may be appointed counsel to assist him in the
proceedings and the State may file a motion to dismiss or answer the petition. Pingelton, 2022 IL
127680, ¶ 33; Tate, 2012 IL 112214, ¶ 10; Domagala, 2013 IL 113688 ¶ 33. In deciding a
motion to dismiss at this stage, the circuit court must determine whether the petition and any
accompanying documentation make “ ‘a substantial showing of a constitutional violation.’ ”
Tate, 2012 IL 11214, ¶ 10 (quoting People v. Edwards, 197 Ill. 2d 239, 246 (2001)); see also
Pingelton, 2022 IL 127680, ¶ 33. In doing so, the court must not engage in fact-finding or
credibility determinations but must take as true all well-pleaded facts that are not positively
rebutted by the original trial record. See Domagala, 2013 IL 11368, ¶ 35 (“Unless the
petitioner’s allegations are affirmatively refuted by the record, they are taken as true, and the
question is whether those allegations establish or ‘show’ a constitutional violation.”). In other
words, the second stage of postconviction review tests the legal sufficiency of the petition’s well-
pleaded allegations. Id. Where no substantial showing of a constitutional violation is made, the
petition is dismissed. Pingelton, 2022 IL 127680, ¶ 34. If, however, a substantial showing of a
constitutional violation is set forth, the petition must be advanced to the third stage of
postconviction proceedings for the circuit court to conduct an evidentiary hearing. Id. Our review
of the circuit court’s second-stage dismissal of a postconviction petition is de novo. Tate, 2012
IL 11214, ¶ 10. De novo consideration means that we will perform the same analysis that would
have been performed by the trial judge. People v. Van Dyke, 2020 IL App (1st) 191384, ¶ 41.
¶ 54 Both the United States and Illinois constitution guarantee criminal defendants the right to
effective representation of counsel. People v. Hale, 2013 IL 113140, ¶ 15 (citing U.S. Cont.,
amends VI, XIV, and Ill. Const. 1970, art. I, § 8). It is axiomatic that to determine whether a
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defendant was denied his right to such representation a reviewing court must apply the two-
prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Rodriguez, 2018
IL App (1st) 160030, ¶ 48; see also People v. Colon, 225 Ill. 2d 125, 135 (2007) (citing People v.
Albanese, 104 Ill. 2d 504 (1984) (adopting Strickland)). Under this test, the defendant must
prove both: (1) that his counsel’s performance was deficient, i.e., that counsel’s actions
constituted errors so serious as to fall below an objective standard of reasonableness; and (2) that
counsel’s deficient performance was prejudicial, i.e., that absent the errors committed by counsel
there was a reasonable probability that the outcome of his trial would have been different.
Domagala, 2013 IL 113688, ¶ 36 (citing Strickland, 466 U.S. at 687).
¶ 55 “A criminal defendant’s sixth amendment right to effective assistance of counsel includes
the right to conflict-free representation.” People v. Taylor, 237 Ill. 2d 356, 374 (2010); People v.
Yost, 2021 IL 126187, ¶ 36. Counsel is deemed constitutionally ineffective where his allegiance
is “ ‘diluted by conflicting interests or inconsistent obligations.’ ” Yost, 2021 IL 126187, ¶ 36
(quoting People v. Spreitzer, 123 Ill. 2d 1, 14-15 (1988)). A party asserting that counsel operated
under a conflict of interest is essentially “arguing that [such a] conflict rendered his attorney’s
performance substandard, and that the substandard performance caused prejudice.” Yost, 2021 IL
126187, ¶ 36.
¶ 56 Unlike other jurisdictions, Illinois recognizes two types of conflicts of interest: per se and
actual. Yost, 2021 IL 126187, ¶ 37; Spreitzer, 123 Ill. 2d at 14 (noting that “the term per se
conflict does not appear in United States Supreme Court case law *** or in cases from our sister
jurisdictions.”)
¶ 57 A per se conflict arises when certain facts about the defense attorney’s status, by
themselves, create a disabling conflict. People v. Green, 2020 IL 125005, ¶ 22. Generally, this
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occurs when the attorney has or had “a tie to a person or entity” that would benefit from a verdict
unfavorable to the client. Spreitzer, 123 Ill. 2d at 16. Pursuant to long-standing precedent, our
supreme court recognizes only three situations in which such a conflict can exist:
“(1) when defense counsel has a prior or contemporaneous association with the victim,
the prosecution or an entity assisting the prosecution [citations]; (2) when defense
counsel contemporaneously represents a prosecution witness [citations]; and (3) when
defense counsel was a former prosecutor who had been personally involved in the
prosecution of the defendant [citation.]” People v. Hernandez, 231 Ill. 2d 134, 143-44
(2008); accord People v. Fields, 2012 IL 112438, ¶ 18; Green, 2020 IL 125005, ¶ 43; In
re Br. M., 2021 IL 125969, ¶ 45.
¶ 58 Because in this “closed set” of situations, the tie “may have subtle or subliminal effects
on counsel’s performance that are difficult to detect and demonstrate,” (In re Br. M., 2021 IL
125969, ¶ 55), a defendant alleging a per se conflict of interest need not establish that the
conflict affected his performance. People. v Hillenbrand, 121 Ill. 2d 537, 544 (1988).
Accordingly, where a per se conflict exists, for purposes of Strickland prejudice is presumed.
See Green, 2020 IL 125005, ¶ 21 (“ ‘allegations and proof of prejudice are unnecessary in cases
where a defense counsel *** might be restrained in fully representing the defendant’s interest
due to *** commitments to others’ ”) (quoting People v. Coslet, 67 Ill. 2d 127, 133 (1977); see
also Hernandez, 231 Ill. 2d at 142-43. Unless a defendant waives his right to conflict-free
representation, the remedy for a per se conflict of interest is automatic reversal. Green, 2020 IL
125005, ¶ 24.
¶ 59 In contrast, to establish an actual conflict of interest, a defendant must identify an actual
conflict that adversely affected his counsel’s performance. Yost, 2021 IL 126187, ¶ 38; see also
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Hernandez, 231 Ill. 2d at 144. To do so, the defendant must “identify a specific deficiency in his
counsel’s strategy, tactics, or decision making that is attributable to the alleged conflict.” Yost,
2021 IL 126187, ¶ 38. In this respect, “[s]peculative allegations and conclusory statements are
insufficient.” Id.; see also Hernandez, 231 Ill. 2d at 144. People v. Morales, 209 Ill. 2d 340, 349
(2004). Nonetheless, the defendant need not prove that the conflict contributed to his conviction.
Taylor, 237 Ill. 2d at 375. Rather, he must only show that it adversely affected his lawyer’s
performance. Id. To do so, a defendant:
“ ‘[f]irst, *** must demonstrate that some plausible alternative defense strategy or tactic
might have been pursued. He need not show that the defense would necessarily have been
successful if it had been used, but that it possessed sufficient substance to be a viable
alternative. Second, he must establish that the alternative defense was inherently in
conflict with or not undertaken due to the attorney’s other loyalties or interests.’ ” People
v. Nelson, 2017 IL 120198, ¶ 37 (quoting United States v. Fahey, 769 F. 2d829, 836 (1st
Cir. 1985)).
If the defendant can establish that counsel’s actual conflict adversely affected his performance,
he need not prove prejudice for purposes of Strickland. See Cuyler v. Sullivan, 466 U.S. 335,
349-359 (1980).
¶ 60 In the present case, the petitioner argues that Monaco labored both under a per se and an
actual conflict of interest. For the following reasons, we find that the petitioner has only made a
substantial showing of an actual conflict.
¶ 61 A. Per se Conflict of Interest
¶ 62 With respect to a per se conflict of interest, on appeal, the petitioner contends that
Monaco had “ties” to Uriarte and Cardena and that both men benefited from the petitioner’s
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No. 1-21-1026
charge and conviction for murder. The petitioner concedes that he waived this argument for
purposes of appeal because in his response to the State’s motion to dismiss his petition, he
conceded that Monaco’s actions did not fall into one of the three categories of per se conflicts
recognized by our supreme court. The petitioner nonetheless asserts that since then, this appellate
court has decided People v. Soto and Ayala, 2022 IL App (1st) 192484, which applied the per se
conflict rule to a situation where trial counsel represented an alternative suspect.
¶ 63 The State argues that the petitioner misconstrues Soto and that the only reason the per se
rule applied in that case was because defense counsel represented an alternative suspect who was
also a named State’s witness, which is not what occurred here. For the following reasons, we
agree with the State.
¶ 64 In Soto, two codefendants, Soto and Ayala, were tried jointly before a single jury and
convicted of two murders, attempted murder and conspiracy to commit murder. Soto, 2022 IL
App (1st) 192484, ¶ 2. The State alleged through it primary witness, Wally Cruz, that Ayala had
ordered a gang hit and that Cruz drove, among others, Soto, armed with a handgun, to a park
where Soto fired and killed two people and injured another. Id. Soto and Ayala alleged that
defense counsel had a per se conflict of interest because in the wake of the shooting for 19 days
he simultaneously represented an “alternate suspect,” Rodriguez, a 16-year-old, who was
identified by several eyewitnesses as the person who fired the handgun into the park. Id. ¶¶ 3,
51. The State argued that because Rodriguez never testified at the defendants’ trial, the per se
conflict rule did not apply. Id. ¶¶ 120, 124.
¶ 65 On appeal, this court rejected the State’s argument and held that the contemporaneous
representation of an “alternate suspect,” who was also a named State’s witness in the defendants’
case, created a sufficient potential conflict so as to fall under the per se conflict rule. Id. In doing
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No. 1-21-1026
so, we explicitly rejected the State’s contention that no per se conflict can ever arise where a
named State’s witness does not testify at trial. Id. ¶ 124. Instead, we held that Rodriguez’s status
as a disclosed State’s witness in the defendants’ case was sufficient to satisfy the second per se
conflict of interest category. Id.¶ 66 Contrary to Soto, in the present case, the petitioner himself concedes in his reply brief
that he cannot show that Uriarte or Cardena were named witnesses in the State’s case against him
and that his only basis for seeking relief under the per se conflict rule is that Uriarte and Cardena
were “alternate suspects.” Under these circumstances, we have no choice but to conclude that
Soto does not support the petitioner’s contention that defense counsel Monaco labored under a
per se conflict of interest.
¶ 67 To the extent that the petitioner relies on Soto for the proposition that a new category of
per se conflict arises whenever defense counsel represents “alternate suspects” to a crime, we
reiterate that our supreme court has repeatedly and categorically refused to expand per se
conflicts of interest beyond the three categories it currently recognizes. See Fields, 2012 IL
112438, ¶ 40-41 (holding that the appellate court misinterpreted the statement that “[w]hen a
defendant’s attorney has a tie to a person or entity that would benefit from an unfavorable verdict
for the defendant, a per se conflict arises” as setting forth an alternate fourth basis for per se
conflicts of interest; reiterating that “[p]ursuant to long-standing precedent” the Illinois Supreme
Court recognizes only “three situations where a per se conflict of interest exists.”); Green, 2020
IL 125005, ¶ 37, 42-43 (rejecting the defendant’s invitation to expand the per se conflict rule to
include defense counsel’s previous representation not of the actual victim, but of the intended
victim of the defendant’s crime; holding that “[i]n the event any confusion remains, we reiterate
that this court recognizes only three situations in which a per se conflict of interest will be found
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No. 1-21-1026
to exist.”) In re Br. M., 2021 IL 125969, ¶ 54-55, 60 (reversing the appellate court’s decision
applying the per se conflict rule to an attorney who represented a mother in a termination of
parental rights proceeding for also serving as the guardian ad litem of the mother’s child during
three hearings on a neglect petition; noting, “As we recently reiterated, ‘this court recognizes
only three situations in which a per se conflict of interest will be found to exist.’ That is a closed
set, and any other situations may be examined for an actual conflict of interest.” (Internal
citations omitted.))
¶ 68 What is more, such an argument is contrary to our supreme court’s long-standing rule
that “joint representation of criminal codefendants is not per se violative of the constitutional
guarantee of conflict-free representation.” Taylor, 237 Ill. 2d at 375 (citing People v. Vriner, 74
Ill. 2d 329, 340 (1978) (although there is always the possibility that the interest of the
codefendants may diverge, a conflict of interest is not inherent in joint-representation situations
merely by virtue of such representation)); see also People v. Sims, 322 Ill. App. 3d 397, 414
(2001) (“The contemporaneous representation of a defendant and of another suspect in the same
investigation that led to that defendant’s arrest does not present a blatantly obvious conflict. It is
not a representation of directly opposed interests that must inevitably collide—that is, the kind of
competing interests that give rise to a conflict per se. While the potential for conflicts certainly
exists, the interest of a defendant and of another suspect can often remain entirely compatible.
*** There is no reason to presume from the very nature of the interests represented that counsel’s
allegiance to one of the other clients will suffer ‘subluminal’ impairment.”). Since a conflict of
interest is not inherent in a defense counsel’s representation of codefendants charged in the same
crime, such representation of uncharged “alternate suspects” similarly cannot give rise to a per se
conflict of interest. Accordingly, we find that the petitioner has not made a substantial showing
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of a per se conflict.
¶ 69 B. Actual Conflict of Interest
¶ 70 Nonetheless, for reasons that shall be more fully articulated below, we find that the
petitioner has made a substantial showing of counsel’s actual conflict of interest.
¶ 71 As already noted above, a defendant alleging an actual conflict of interest must
demonstrate that: (1) some plausible alternative defense strategy or tactic might have been
pursued; and (2) the alternative defense was inherently in conflict with or not undertaken due to
the attorney’s other loyalties or interests. Nelson, 2017 IL 120198, ¶ 37. Under the first prong, a
defendant need not show that the alternative defense strategy would have been successful had it
been used but rather only that it “possessed sufficient substance to be a viable alternative.” Id.¶ 72 In the present case, taking as we must the petitioner’s well-pleaded allegations as true, we
find that the petitioner has made a substantial showing of a viable alternative strategy, i.e.,
showcasing Uriarte and Cardena as the actual shooters. In addition, he has shown that the
strategy was not pursued by Monaco because it was not undertaken due to his loyalties to Uriarte
and Cardena.
¶ 73 Uriarte and Cardena were alternate suspects to possible murder charges in this case, and
therefore undoubtedly stood to benefit from the petitioner’s conviction. While the petitioner was
arrested in possession of the murder weapon, gunpowder residue testing of his hands and
clothing revealed that he did not discharge a firearm. Moreover, no one identified the petitioner
as the shooter, and the petitioner was not observed with a firearm either immediately prior to or
after the shooting. On the other hand, Uriarte and Cardena were both arrested on the night of the
shooting after fleeing the scene. Their physical descriptions matched that of the petitioner, and
they were affiliated with the same gang as the petitioner. That gang was further identified as the
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No. 1-21-1026
motive behind the shooting. Moreover, in his amended petition, the petitioner introduced
evidence suggesting that Uriarte and Cardena were high ranking members of an extensive
criminal enterprise with the ability to coerce witness testimony and command the petitioner to
take the gun from them after the shooting. Accordingly, a plausible argument could be made that
either Uriarte or Cardena shot the victim and disposed of the weapon by giving it to the
petitioner.
¶ 74 The State nonetheless asserts that Monaco made a strategic decision not to introduce any
evidence implicating Cardena and Uriarte because he deemed them not to be viable alternative
suspects. In this respect, the State asserts that the evidence at the petitioner’s trial unequivocally
established that the shooter wore white, while Cardena and Uriarte wore dark clothing upon their
arrest. We disagree.
¶ 75 Eyewitness testimony from the petitioner’s trial by no means excluded the possibility that
the shooter wore dark clothing. While Mitchell and Michael initially testified that the shooter
wore white, on cross-examination, Michael admitted that he did not know if the person in white
“actually was the one who shot.” He admitted that he “couldn’t see north or south of the lot” and
therefore did not know whether there was another shooter nearby. Mitchell similarly testified that
at one point, he lost sight of the man in the white shirt and was therefore not certain if he was the
one who later fired the shots. The third eyewitness, Erik, similarly acknowledged on cross-
examination that he could not remember whether the shooter wore dark or light clothing. In
addition, Erik later viewed a lineup containing the petitioner but made no identification. Under
this record, we cannot conceive of a strategic reason for counsel’s failure to attempt to implicate
Uriarte and Cardena as alternative suspects.
¶ 76 In this respect, we disagree with the State’s position that the record affirmatively shows
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No. 1-21-1026
that Monaco initially intended to implicate Uriarte and Cardena but changed course mid-trial
after Erik’s testimony. According to the State, because Erik testified on cross-examination that
he could not remember telling Detective Rose that the shooter was “possibly wearing dark
clothing,” Detective Rose’s rebuttal testimony about what Erik told him could only be used for
impeachment and not as substantive evidence. The State asserts that Monaco realized this after
the trial court sustained the State’s objection to his closing argument regarding Erik not knowing
whether the shooter wore dark or light clothing.
¶ 77 Contrary to the State’s characterization, the objection regarding Erik’s testimony being
used as substantive evidence came at the end of Monaco’s closing argument, and not mid-way so
as to have impacted counsel’s strategy. More importantly, nothing in the record affirmatively
establishes that Monaco ever intended to implicate Cardena and Uriarte since neither appeared
on defense counsel’s witness list. Moreover, during his case-in-chief, defense counsel, in no
meaningful way attempted to introduce evidence regarding Cardena’s and Uriarte’s gang
affiliation, or their motive to kill the victim, let alone their ability to coerce the petitioner to take
the gun for them. Throughout his opening and closing arguments, Monaco consistently attacked
the State’s case based on a lack of identification, no forensic evidence establishing that the
petitioner had fired a gun, and the eyewitnesses’ inability to observe the shooter. The record
therefore does not positively establish that Monaco abandoned the petitioner’s proposed
alternative trial strategy.
¶ 78 The State nevertheless further asserts that Uriarte and Cardena were not viable alternate
suspects because the petitioner has failed to present evidence that they had the ability to coerce
him into taking the gun from them after the shooting. The State contends that without such
evidence the petitioner could not prove that Uriarte and Cardena had any more reason than he did
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No. 1-21-1026
to commit the shooting. In this respect, the State argues that the 2006 federal racketeering and
conspiracy indictment against Uriarte and Cardena and the 2016 Seventh Circuit Court of
Appeals decision detailing Uriarte’s and Cardena’s crimes do not explicitly refer either to their
gang affiliation or to their rank, nor in any way establish that they had the ability command the
petitioner to perform any acts on their behalf.
¶ 79 For the following reasons, we disagree and find that regardless of whether Uriarte and
Cardena had such power over the petitioner, they were viable alternative suspects that should
have been implicated at the petitioner’s trial.
¶ 80 At the outset, we note that, contrary to the State’s position, the documents attached to the
amended petition make a substantial showing that Uriarte and Cardena had the ability to coerce
and intimidate witnesses. Uriarte’s and Cardena’s federal indictment and the Seventh Circuit
Court of Appeals decision affirming their convictions both establish the existence of a decade-
long criminal conspiracy involving, among others, Chicago police officer Glen Lewellen and 13
other individuals, including, Cardena, Uriarte, and Uriarte’s brother, Hector. According to these
documents, beginning in 1998, the members of this conspiracy, who were initially police
informants, identified and robbed drug dealers for their own gain. United States v. Cardena, 842
F.3d 959 (7th Cir. 2006). For the next ten years, they committed at least three murders, twenty
kidnappings and robberies and numerous drug-trafficking offenses, until they were arrested in
2009, when the Drug Enforcement Agency (DEA) filmed them attempting to rob 600 kilograms
of cocaine from a warehouse. Id.¶ 81 One of the incidents described in the Seventh Circuit decision notes that in 2006 Uriarte
and Cardena broke into a warehouse in Joliet and stole 300 kilograms of cocaine. Id. After
discovering that the cocaine belonged to a high-ranking member of the Mexican cartel, Uriarte’s
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No. 1-21-1026
coconspirators blamed the robbery on two drug-dealers. The coconspirators were subsequently
hired by the Mexican cartel to investigate the robbery, after which Uriarte kidnapped and
tortured the two drug-dealers on behalf of the Mexican cartel. Id.¶ 82 Another incident described in the Seventh Circuit decision notes that in 2007, among
others, Uriarte impersonated a police officer and using a battering ram, entered the home of a
victim whom he believed had $2 million in his home, after which he threatened the victim and
his wife and children until they gave him the money.
¶ 83 In addition, the 2009 federal indictment against Uriarte and Cardena repeatedly alleges
that the coconspirators used violence, intimidation, and threats to achieve their gains.
Specifically, describing the purpose of the criminal enterprise, the indictment notes that “the
leaders, members and associates of the enterprise undertook steps necessary to prevent the
detection of their criminal activities, and sought to prevent and resolve the imposition of any
criminal liabilities upon their leaders, members and associates by the use of violence and
intimidation directed against victims, witnesses and others.”
¶ 84 Accordingly, while the State is correct that the documents attached to the petition do not
explicitly refer to Uriarte’s or Cardena’s gang affiliation or rank, or their relationship to the
petitioner, it is undeniable that they present evidence that Uriarte and Cardena were violent men,
who operated a lucrative criminal enterprise that involved both members of the Chicago Police
Department and the Mexican Cartel, and therefore had the ability to intimidate, coerce and
command others to do their bidding.
¶ 85 Moreover, regardless of their ability to command the petitioner to take the fall for them,
Uriarte and Cardena were viable alternative suspects that should have been introduced at trial. As
already noted above, to show that counsel had an actual conflict of interest, the petitioner need
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No. 1-21-1026
not show that his proposed alternative strategy would have been successful had it been used but
rather only that it “possessed sufficient substance to be a viable alternative.” Nelson, 2017 IL
120198, ¶ 37. In the instant case, the evidence against the petitioner was circumstantial. No one
identified him as the shooter and the eyewitnesses could barely agree on whether the shooter
wore white. Moreover, at least one eyewitness conceded that he did not know whether there were
other shooters in the area because his view of the area was blocked by the surrounding buildings.
The one thing that the three eyewitnesses could agree upon, however, was that they heard
someone yell “City Knight La Raza killer” immediately before the shooting. Where the evidence
pointed to a gang-related motive, defense counsel Monaco should have highlighted evidence of
Uriarte’s and Cardena’s membership in the City Knights (by way of photographs of Uriarte’s
gang tattoos and the Major Incident Report listing Cardena’s gang affiliation as City Knights) to
present them as equally viable suspects. Counsel also should have introduced evidence of
Uriarte’s and Cardena’s physical descriptions as they matched that of the petitioner.
Furthermore, counsel should have argued that of the three suspects, Uriarte best fit Michael’s
description of the shooter as “a little chunky.” By not doing so, counsel left the petitioner as the
only person in the jury’s eyes who had reason to commit the crime.
¶ 86 The State, nonetheless, asserts that even if the petitioner can show that Uriarte and
Cardena were viable alternative suspects, he cannot establish that Monaco’s decision not to call
them as witnesses or implicate them in the shooting arose from any loyalty towards them. In this
respect, the State argues that the petitioner cannot even show that counsel knew about Uriarte’s
and Cardena’s crimes at the time of his trial in 2007. We disagree.
¶ 87 The documents addressed above clearly establish that Uriarte and Cardena ran their
criminal enterprise between 1998 and 2009, which encompasses the time when Monaco
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No. 1-21-1026
represented the petitioner. In addition, the attached 2011 federal district court decision (from the
Northern District of Illinois) disqualifying Monaco as Hector’s attorney in the federal conspiracy
and racketeering case, establishes that by 2011 Monaco had represented Hector and “several of
his codefendants” (which would have included Uriarte and Cardena) for over 12 years and
“owe[d] continuing duties of confidentiality and loyalty to those former clients.”
¶ 88 The GPR, attached to the petition, further establishes that at the time of the petitioner’s
arrest, prior to taking on the petitioner’s case, Monaco initially arrived at the police station to
represent Uriarte, while other attorneys arrived for the petitioner and Cardena. It was only after
Uriarte and Cardena were released that Monaco began representing the petitioner. What is more,
it is undisputed that while representing the petitioner, Monaco contemporaneously represented
Cardena on an unrelated murder charge.
¶ 89 Under these circumstances, taking as true the well-pleaded allegations in the petition, we
cannot conclude, as a matter of law, that in 2007, Monaco was unaware of Cardena’s and
Uriarte’s gang status, so as not to have been able to use this information at the petitioner’s trial.
¶ 90 Moreover, the retainer letter from the petitioner’s subsequently hired appellate counsel,
Thomas Moore, dated 2008, instructing the petitioner that Moore has been hired by Urirate’s
brother, Hector, to represent him on appeal, further supports the petitioner’s position that as
members of the criminal enterprise, Urirate and Cardena, “prevent[ed] and resolv[ed] the
imposition of any criminal liabilities upon their leaders, members and associates.”
¶ 91 For these reasons, we reject the State’s strategic justifications for Monaco’s failure to
implicate Uriarte and Cardena in the shooting and conclude that they do not defeat the more
probable inference: that Monaco could not call Uriarte or Cardena as witnesses, or use
information known to him about their criminal activities, without betraying his duty of loyalty to
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No. 1-21-1026
them or disclosing information that Uriarte and Cadena had shared with him under the cloak of
attorney-client privilege. To the extent that the State wishes to probe Monaco’s “motivations or
trial strategy,” we reiterate that “the appropriate venue to do so is at a third-stage evidentiary
hearing.” Soto, 2022 IL App (1st) 192484, ¶ 128; see also Domagala, 2013 IL 113688, ¶
34; People v. Gacho, 2012 IL App (1st) 091675, ¶ 32 (holding that a postconviction petitioner
made a substantial showing that defense counsel labored under an impermissible conflict of
interest when he represented a murder victim’s family member even though he did not indicate
the nature of counsel’s representation of that family member; remanding for a third-stage
evidentiary hearing but declining to resolve the questions of “what effect an actual conflict might
have had on the defendant’s trial” because “the evidence adduced at any such hearing may affect
the strength of defendant’s allegations in unforeseeable ways”); see also People v. Boswell, 2020
IL App (4th) 180165, ¶ 28 (holding that the defendant was entitled to a third-stage evidentiary
hearing on his conflict of interest claim where defendant made a substantial showing that trial
counsel labored under an actual conflict of interest).
¶ 92 Accordingly, we conclude that the circuit court erred in dismissing the petitioner’s actual
conflict of interest claim.
¶ 93 C. Ineffective Assistance of Counsel
¶ 94 For these same reasons, we further find that the circuit court erred in dismissing the
petitioner’s ineffective assistance of counsel claim.
¶ 95 As already noted above, claims of ineffective assistance are governed by the two-prong
standard set forth in Strickland. See Rodriguez, 2018 IL App (1st) 160030, ¶ 48; Colon, 225 Ill.
2d at 135 (citing Albanese, 104 Ill. 2d 504). To prevail on such a claim, the petitioner was
required to substantially show both: (1) that counsel’s performance was objectively deficient
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No. 1-21-1026
under prevailing professional norms and (2) that this deficient performance prejudiced the
petitioner. Domagala, 2013 IL 11368, ¶ 36.
¶ 96 To establish deficient performance, the petitioner had to “overcome the strong
presumption that counsel’s *** inaction was the result of sound trial strategy. People v.
Anderson, 2013 IL App (2d) 111183, ¶ 54. While typically counsel’s decisions regarding which
witness to present are considered matters of trial strategy, such strategic decisions “may be made
only after there has been a ‘thorough investigation of law and facts relevant to plausible options.’
” People v. Gibson, 244 Ill. App. 3d 700, 703-704 (1993). Trial counsel has a professional duty
to conduct “reasonable investigations or to make reasonable decisions that make[] particular
investigations unnecessary.” Domagala, 2013 IL 113688, ¶ 38. As such, our courts have
repeatedly held that an attorney’s failure to investigate witnesses may constitute objectively
unreasonable assistance. See e.g., People v. Bolden, 2014 IL App (1st) 123527, ¶ 38 (holding
that defense counsel’s failure to investigate and contact alibi witnesses constituted objectively
unreasonable assistance); Hodges, 234 Ill. 2d at 20-21 (holding that counsel’s failure to
investigate and call three witnesses who would have testified that they observed an individual
take a gun from the victim’s body after the defendant shot him, was objectively unreasonable, as
it would have supported the defendant’s theory of defense, i.e. a finding of guilt on second
degree murder based on an unreasonable belief that deadly force was necessary).
¶ 97 Moreover, even where counsel conducts a thorough investigation, failure to present
exculpatory evidence of which he is aware is objectively unreasonable. See e.g., People v. King,
316 Ill. App. 3d 901, 913-16 (2000) (“[C]ounsel’s tactical decisions may be deemed ineffective
when they result in counsel’s failure to present exculpatory evidence of which he is aware[.]”);
see also People v. Bass, 2022 IL App (1st) 210249, ¶ 30 (“Where a defendant’s attorney is aware
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No. 1-21-1026
of exculpatory evidence and does not present it, counsel can be deemed ineffective.”)
¶ 98 In the present case, as already noted above, the record as developed up to this point in the
proceedings reflects no strategic reason for defense counsel’s failure to interview, subpoena, call
or implicate Uriarte and Cardena as witnesses at the petitioner’s trial. Had he done so counsel
would have certainly discovered that they were present during the shooting, were City Knights
gang members, matched the descriptions of the shooter, had the motive and opportunity to kill
the victim and the ability to coerce the petitioner to take the fall for them.
¶ 99 Moreover, in light of the weak and circumstantial evidence of the petitioner’s guilt, there
is more than a reasonable probability that but for counsel’s failure to investigate, call and or
implicate these witnesses, the outcome of the petitioner’s trial would have been different. See
Colon, 225 Ill. 2d at 135 (to establish prejudice under Strickland the petitioner must show that
“but for” counsel’s deficient performance, there was a reasonable probability that the result of
his proceedings would have been different); see also People v. Evans, 209 Ill. 2d 194, 220 (2004)
(“[A] reasonable probability that the result would have been different is a probability sufficient
to undermine confidence in the outcome—or put another way that counsel’s deficient
performance rendered the result of the trial unreliable and fundamentally unfair.”) Had the jury
been presented with evidence showcasing Uriarte and Cardena as viable alternative suspects, it
would have had a basis upon which to acquit the petitioner. See People v. Makiel, 358 Ill. App.
3d 102, 109 (2005) (holding that the defendant was entitled to an evidentiary hearing on his
claim that counsel was ineffective for failing to subpoena the separately tried codefendant where
questions of fact existed as to counsel’s failure to investigate and whether failure to call this
witness rendered his trial fundamentally unfair where the record reflected no strategic reason for
counsel’s failure to call the witness and questions of fact could only be resolved by consideration
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No. 1-21-1026
of matters outside of the record); see also People v. House, 141 Ill. 2d 323, 386 (1990) (holding
that based on the closeness of the evidence, counsel’s failure to conduct an investigation that
would have established that the victim described someone other than the defendant at the scene,
constituted ineffective assistance of counsel, which likely affected the outcome of the
defendant’s trial); People v. Coleman 267 Ill. App. 3d 895, 899 (1994) (holding that counsel’s
failure to interview witnesses and “pursue information in his possession,” which indicated that
the crime had been committed differently from what the victim had reported supported the
defendant’s claim of ineffective assistance of counsel).
¶ 100 We therefore conclude that the petitioner has made a substantial showing of ineffective
assistance of counsel for counsel’s failure to investigate these witnesses and introduce
exculpatory evidence implicating them in the crime.
¶ 101 IV. CONCLUSION
¶ 102 In summary, we find that while the petitioner has not made a substantial showing of a per
se conflict of interest, his petition sufficiently sets forth two claims that must be further explored
at an evidentiary hearing: (1) that counsel labored under an actual conflict of interest; and (2) that
counsel provided the petitioner with ineffective assistance by not investigating or implicating
Uriarte and Cardena as possible alternative shooters.
¶ 103 We therefore affirm the circuit court’s decision dismissing the petitioner’s per se conflict
of interest claim but reverse and remand for further proceedings under the Act on the petitioner’s
actual conflict of interest and ineffective assistance of counsel claims.
¶ 104 Affirmed in part; reversed and remanded in part.
32