2020 IL App (1st) 171484
SIXTH DIVISION October 23, 2020
No. 1-17-1484
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court of ) Cook County. Plaintiff-Appellee, ) ) v. ) No. 11 CR 14557 ) HEGGIE CARR, ) ) Honorable Nicholas Ford, Defendant-Appellant. ) Judge Presiding.
JUSTICE CONNORS delivered the judgment of the court, with opinion. Justices Harris and Griffin concurred in the judgment and opinion.
OPINION
¶1 Defendant, Heggie Carr, appeals the dismissal of his postconviction petition after a third-
stage evidentiary hearing. On appeal, he contends that the circuit court should have granted his
petition because his trial attorney labored under a per se conflict of interest where the victim in his
case hired defendant’s attorney to represent him and testified against defendant at trial. Finding
that defendant did not waive the per se conflict that arose, we reverse and remand for a new trial.
¶2 I. BACKGROUND No. 1-17-1484
¶3 The following background is drawn from the record and this court’s order from defendant’s
direct appeal: People v. Carr, 2014 IL App (1st) 122128-U. Defendant was charged with
aggravated domestic battery and aggravated battery, among other offenses, after an incident on
July 21, 2011, in which defendant beat the victim, Robin Hall, in a hotel room located at 6250
North Lincoln Avenue in Chicago. Two private attorneys, William Knox and Marc Gottreich, each
filed an appearance for defendant on August 19, 2011. Knox was granted leave to withdraw six
days later. Gottreich represented defendant for the rest of the pretrial proceedings and at trial,
though Nicholas O’Connor, an associate at Gottreich’s firm, appeared for defendant on one pretrial
date.
¶4 A. Trial
¶5 At the April 2012 trial, Hall testified that she and defendant had been together for the past
five years. Hall was an escort and defendant was her pimp. Hall further described defendant as
“my man, my best friend, and everything.” Hall would give defendant the money she made from
escorting. At the time of the incident, she was staying in a second-floor hotel room with Michael
Dillon. Hall had a phone conversation with defendant that did not go well, and she hung up the
phone on him. When Hall opened the door to leave, defendant entered and began searching the
room. After defendant saw Dillon in the bathroom, defendant started beating Hall. Defendant hit
her with his fist, knocked her teeth out, fractured her cheek bone, and hit her with something metal.
Hall escaped by jumping out of the window, whereupon someone grabbed the back of her shirt.
Hall landed on her hip and side, breaking her pelvic bone and wrist. Hall blacked out, but
remembered defendant asking if she was dead and throwing Hall’s phone at her. Hall was later
taken to the hospital, where she was treated for her injuries. After the incident, defendant sent Hall
-2- No. 1-17-1484
a letter, stating that Hall “kn[e]w what to say” at trial, defendant missed her, and he was looking
forward to returning home and celebrating their life together.
¶6 Michael Dillon also testified about the incident, stating that defendant had punched Hall
and used objects to strike her.
¶7 After closing arguments, the court found defendant guilty of three counts of aggravated
domestic battery and one count of aggravated battery. Defendant was sentenced as a Class X
offender to concurrent 14-year prison terms on each count.
¶8 B. Direct Appeal
¶9 In his direct appeal, defendant raised claims relating to the sufficiency of the evidence and
ineffective assistance of counsel, in that his counsel elicited certain harmful evidence. Defendant
also contended that—pursuant to the one-act, one-crime doctrine—the trial court improperly
convicted him of three separate aggravated domestic battery charges, in addition to one lesser
charge of aggravated battery, for the commission of a single physical act. This court issued its
decision on March 10, 2014, rejecting defendant’s sufficiency of the evidence and ineffective
assistance claims, but finding that the multiple convictions for aggravated domestic battery and
the additional aggravated battery conviction were unwarranted under the one-act, one-crime
doctrine. Id. Defendant’s aggravated battery conviction and two of the aggravated domestic battery
convictions were vacated. Id. ¶ 28. This court affirmed one conviction for aggravated domestic
battery. Id.
¶ 10 C. Postconviction Proceedings
¶ 11 On July 10, 2014, defendant filed a postconviction petition, asserting in part that he was
denied the right to effective assistance of counsel because his trial attorney, Gottreich, labored
under a per se conflict of interest. Defendant stated that Hall—who was the complaining witness,
-3- No. 1-17-1484
the State’s key witness, and the victim—hired and paid Gottreich to represent him. Further, Hall
had owed a remaining balance. Defendant asserted that Gottreich never mentioned the conflict and
defendant only learned of the conflict when his appellate counsel mailed him a copy of an attorney-
client representation agreement.
¶ 12 Defendant attached several documents to his petition, including the aforementioned
attorney-client representation agreement, a March 2013 letter to defendant from Gottreich, a
March 2013 letter to defendant from the DePaul University College of Law legal clinic, and an
affidavit from defendant’s mother.
¶ 13 The attorney-client representation agreement stated in part:
“This agreement is entered into by and between the law firm of Gottreich &
Grace (‘Attorneys’) and Robin Hall (‘Client’) on 8/16/11. The Attorneys agree to
represent the Client in the pending criminal matter *** for the sum of 3000 plus
any investigational or court costs ***.
***
The Attorneys and Client further agree that upon the signing of this
Agreement, the Attorneys have been paid $1000 as an Advance Payment Retainer.”
There were two signature lines. Hall appeared to have signed above the first line. It was unclear
who signed above the second line, below which were typed the names Marc E. Gottreich and
Timothy M. Grace.
¶ 14 Gottreich’s March 2013 letter stated in part that “[a]s far as payments, Robin paid me
$1,000 to get started and your mom paid the balance of $2000 prior to the trial for a total of $3,000
for your case. I received no other money.”
-4- No. 1-17-1484
¶ 15 The March 2013 letter from the DePaul University College of Law legal clinic included
information about defendant’s direct appeal and postconviction petition. The letter also referred to
an invoice that had been provided by defendant’s trial attorney and noted “Robin Hall” was the
payor and “Marc Gottreich” was the payee. That invoice is not in the record.
¶ 16 Another attached document was an affidavit from defendant’s mother, Martha Carr, who
stated in part that she witnessed defense counsel give Hall advice about the case. Martha also stated
that Gottreich worked out all of the payment agreements with Hall.
¶ 17 On October 17, 2014, the circuit court advanced defendant’s petition to second-stage
proceedings and appointed counsel. Defendant’s postconviction counsel filed an Illinois Supreme
Court Rule 651(c) (eff. Feb. 6, 2013) certificate, and the State filed a motion to dismiss the petition.
After a hearing on the motion to dismiss, the court advanced the petition to a third-stage evidentiary
hearing.
¶ 18 The evidentiary hearing was held on June 1, 2017. There, defendant testified that while he
was in pretrial custody, a friend of the family named Tanesa hired an attorney with a last name of
Knox to represent defendant. Gottreich also appeared on his case, and both attorneys appeared for
him on the same date. On that date, defendant chose Gottreich to represent him based on
Gottreich’s proposed strategy. Knox withdrew. Gottreich told defendant he was hired “by the
family,” and defendant presumed that Tanesa had hired and paid him. After defendant was
convicted, he learned that Gottreich had actually been hired by Hall. Gottreich did not tell
defendant before or during the trial that Hall had hired him and never told defendant that Hall paid
him any amount of money. After defendant was convicted, defendant’s mother told him that
Gottreich asked her to pay because he was not receiving the money from Hall. Defendant
maintained that he did not direct anyone to contact or hire Gottreich on his behalf.
-5- No. 1-17-1484
¶ 19 Gottreich also testified at the hearing, recalling that defendant’s mother and Hall contacted
Gottreich by phone. Someone came to his office with money, “[t]hey signed a contract,” and
Gottreich began representing defendant. He did not intend to represent anyone other than
defendant. Gottreich stated that an associate in his firm, Nicholas O’Connor, signed the attorney-
client representation agreement and Gottreich was not present when it was signed. Gottreich
acknowledged that O’Connor “put the agreement between our law firm and Robin Hall,” but the
agreement “should have said Robin Hall on behalf of Heggie Carr or put Heggie Carr’s name in.”
When the agreement was signed, Gottreich knew that Hall was the victim and witness. It was “not
unusual for victims to hire us or pay us money on cases,” especially in a situation that initially
appeared to be “merely a misdemeanor domestic violence case.” Initially, Gottreich spoke to Hall
numerous times, but he did not indicate that he represented her. Hall stopped talking to Gottreich
after a few months. Gottreich did not specifically recall talking to defendant about Hall’s status as
the victim who would testify, but was sure that he did. Gottreich did not see a conflict and did not
bring the matter to the court’s attention.
¶ 20 After closing arguments, the court issued an oral ruling that denied defendant’s petition
and stated as follows. Defendant was intelligent, and the relationship between a prostitute and her
pimp “is a complicated and complex one.” Defendant knew what Hall was doing when she visited
Gottreich and gave him a $1000 deposit. Further, it was at least arguable that the money was
defendant’s because “they had this ongoing relationship.” It was plausible that Hall was “just a
mechanism, a vessel to take the money from wherever he accumulated it and pass it on to the
attorney.” The court queried, “How wide a door shall we open here today. How often do
individuals, domestic partners, walk in and pay for their bail *** and go on to pay for an attorney.”
The court was concerned that if it found that paying a $1000 deposit was a per se conflict, then
-6- No. 1-17-1484
“any time somebody, the victim of the alleged offense, is involved in obtaining money or paying
money to some attorney, that that’s a conflict.” Also, Gottreich did “his rock-solid best” at trial,
and there had been a large amount of evidence against defendant.
¶ 21 Defendant timely appealed.
¶ 22 II. ANALYSIS
¶ 23 On appeal, defendant contends that he is entitled to postconviction relief because his trial
attorney had a per se conflict of interest, in that Hall, the victim, hired and paid Gottreich $1000
to represent defendant and Gottreich knew that Hall was the victim. Further, defendant asserts that
neither Gottreich nor the associate who met with Hall ever told the court that Hall had hired
Gottreich or brought a potential conflict to the court’s attention. Defendant also argues that the
court never obtained a knowing waiver of the conflict from defendant.
¶ 24 The Post-Conviction Hearing Act (Act) provides a three-stage process for a defendant to
challenge his conviction. 725 ILCS 5/122-1 et seq. (West 2012). To obtain relief, a defendant must
show that he suffered a substantial deprivation of his federal or state constitutional rights in the
proceedings that produced the conviction or sentence being challenged. People v. Pendleton, 223
Ill. 2d 458, 471 (2006). At the third-stage evidentiary hearing, “the trial court hears evidence and
determines whether, based on that evidence, the defendant is entitled to relief.” People v. Garcia,
2015 IL App (1st) 131180, ¶ 47. The defendant bears the burden of making a substantial showing
of a constitutional violation. Pendleton, 223 Ill. 2d at 473. The trial judge is in the best position to
observe and weigh the credibility of witnesses testifying at the evidentiary hearing. People v. Ortiz,
385 Ill. App. 3d 1, 6 (2008). Findings of fact are reviewed for manifest error (id.), which is an error
that is clearly evident, plain, and indisputable (Garcia, 2015 IL App (1st) 131180, ¶ 47).
-7- No. 1-17-1484
¶ 25 The sixth amendment of the United States Constitution guarantees the right to effective
assistance of counsel (People v. Spreitzer, 123 Ill. 2d 1, 13 (1988)), which includes the right to
conflict-free representation (People v. Poole, 2015 IL App (4th) 130847, ¶ 25). There are two types
of conflicts: per se and actual. Id. In this appeal, defendant only raises a per se conflict, which is a
conflict “in which facts about a defense attorney’s status *** engender, by themselves, a disabling
conflict.” (Emphasis in original.) (Internal quotation marks omitted.) People v. Hernandez, 231 Ill.
2d 134, 142 (2008) (Juan Hernandez).
¶ 26 A per se conflict arises “[w]hen a defendant’s attorney has a tie to a person or entity that
would benefit from an unfavorable verdict for the defendant.” Id. Our supreme court has identified
three types of per se conflicts: (1) when defense counsel has a prior or contemporaneous
association with the victim, the prosecution, or an entity assisting the prosecution; (2) when
defense counsel contemporaneously represents a prosecution witness; and (3) when defense
counsel was formerly a prosecutor and was personally involved in prosecuting the defendant. Id.
at 143-44. If there is a per se conflict, the defendant is not required show that his counsel’s
performance was at all affected by the conflict. Id. at 143. Prejudice is presumed. People v.
Fountain, 2012 IL App (3d) 090558, ¶ 17 (opinion of Holdridge, J.). “[U]nless a defendant waives
the right to conflict-free counsel, a per se conflict is grounds for automatic reversal.” (Internal
quotation marks omitted.) People v. Cleveland, 2012 IL App (1st) 101631, ¶ 38. Automatic
reversal is warranted because “ ‘counsel’s knowledge that a result favorable to his other client or
association would inevitably conflict with defendant’s interest might subliminally affect counsel’s
performance in ways [that are] difficult to detect and demonstrate.’ ” Fountain, 2012 IL App (3d)
090558, ¶ 17 (opinion of Holdridge, J.) (quoting Juan Hernandez, 231 Ill. 2d at 143). Where the
-8- No. 1-17-1484
record shows that the facts are undisputed, we review de novo the question of whether a per se
conflict exists. Juan Hernandez, 231 Ill. 2d at 144.
¶ 27 The question here is whether Gottreich’s connection to Hall falls into the first category of
per se conflicts—“a prior or contemporaneous association with the victim, the prosecution, or an
entity assisting the prosecution” (id. at 143). Hall paid Gottreich $1000 to represent defendant.
Defendant does not contend that Gottreich actually represented Hall.
¶ 28 The case most analogous to this matter is People v. Palmer, 141 Ill. App. 3d 234 (1986).
In Palmer, defense counsel asked for leave to withdraw because the defendant’s wife, who retained
him as the defendant’s attorney, was the complaining witness and a potential State’s witness
against the defendant. Id. at 236. The trial court denied the attorney’s motion to withdraw. Id. On
appeal, this court found that defense counsel “labored under, at the least, a possible conflict of
interest in his representation of [the] defendant.” Id. at 240. The court stated that to determine
whether there is a conflict of interest, a court should make “a realistic appraisal of defense
counsel’s professional relationship to someone other than the defendant under the circumstances
of each case.” Id. at 241. The court noted that the positions of the defendant and his wife “were
clearly antagonistic.” Id. at 242. Although the wife had at times indicated that she wanted the
defendant’s charges dropped, at other times she wanted the State to prosecute the defendant. Id.
The court concluded that at least a potential conflict was present and reversed the defendant’s
conviction and remanded for a new trial. Id.
¶ 29 Although Palmer characterizes the conflict of interest at issue as a possible or potential
conflict, the court was actually identifying a per se conflict. See Spreitzer, 123 Ill. 2d at 14 (noting
confusing and inconsistent use of terms to describe conflicts of interest, including such terms as
per se conflict, potential conflict, and possible conflict). The Palmer court applied the remedy for
-9- No. 1-17-1484
per se conflicts—automatic reversal without a finding of prejudice. See Palmer, 141 Ill. App. 3d
at 242; see also Juan Hernandez, 231 Ill. 2d at 143 (if there is a per se conflict, a defendant does
not have to show he was prejudiced by the conflict). The situation here is nearly identical to the
situation in Palmer. The victim, who was a key State witness, paid defendant’s attorney fees. Hall’s
and defendant’s positions were clearly antagonistic. Gottreich labored under a per se conflict of
interest. See People v. Sanchez, 161 Ill. App. 3d 586, 593 (1987) (per se conflicts arise when
“defense counsel has professional commitments to others having interests clearly antagonistic to
those of the accused”). Also, that Gottreich’s associate may have taken the money from Hall does
not change the result. See Fountain, 2012 IL App (3d) 090558, ¶ 16 (opinion of Holdridge, J.) (“if
one member of a private law firm has a per se conflict of interest, that conflict is imputed to all
other members of the law firm, regardless of whether any of those other members had any personal
involvement in the conflicting representation”).
¶ 30 Further supporting a per se conflict here is our supreme court’s broad language defining
such conflicts, which include circumstances beyond counsel’s representation of another person
adverse to the defendant. In Juan Hernandez, 231 Ill. 2d at 151, the court stated that the first
category of per se conflicts arises from “counsel’s association, relationship, commitment,
professional connection, or some tie with the victim, a party, or the prosecution, which is either
prior or current or previous or current.” (Internal quotation marks omitted.) Also, the “very nature
of a per se conflict rule precludes inquiry into the specific facts of a case,” and the fact of actual
commitment to another, and not the degree or extent of the commitment, dictates applying the
per se rule. Id. at 150-51 (citing People v. Lawson, 163 Ill. 2d 187, 216 (1994)). Hall’s payment
of the fee to Gottreich’s firm—even though it was only a portion of the total—falls within the
definition set out in Juan Hernandez.
-10- No. 1-17-1484
¶ 31 The State’s sources of support are not persuasive. The State primarily relies on People v.
Graham, 206 Ill. 2d 465 (2003), and People v. Hernandez, 246 Ill. App. 3d 243 (1993) (Miguel
Hernandez). In Graham, 206 Ill. 2d at 470, the defendant contended that his trial attorney labored
under a per se conflict of interest because his attorney previously represented a prosecution
witness, named Johnny, who was also the son of one of the victims. At the request of Johnny’s
uncle, the defendant’s attorney went to the police station after a murder when Johnny had been
taken there for questioning. Id. In the trial court, the attorney maintained that he did not speak to
Johnny and left the police station after he was told that Johnny was not a suspect. Id. at 471. The
attorney was not paid by the victim’s family. Id. Our supreme court found that there was no per se
conflict of interest where the “record [was] devoid of any evidence” that the attorney agreed to
represent Johnny and the attorney and Johnny did not have an attorney-client relationship. Id. at
474. Graham addressed an attorney’s purported representation, but here, there is no allegation that
Gottreich represented Hall. As discussed above, ties other than an attorney-client relationship can
create a per se conflict of interest. Graham does not address the question before us—whether the
fact that the victim paid the defendant’s attorney creates a per se conflict of interest.
¶ 32 Turning to the State’s other case, in Miguel Hernandez, 246 Ill. App. 3d at 248, the
defendant contended that his attorney had a per se conflict of interest because a State’s witness
paid his attorney fees and the attorney had previously been the witness’s divorce lawyer. The court
found there was no per se conflict of interest, noting that the attorney’s representation of the
witness in her divorce case “terminated long before he became [the] defendant’s attorney.” Id. at
249. The court also stated that the witness was not the victim of the defendant’s crime. Id. at 250.
The court further stated that the defendant had not cited any authority “supporting the position that
the mere payment of [the] defendant’s attorney fees coupled with testifying as the State’s witness,
-11- No. 1-17-1484
without further facts establishing obvious antagonism, constitutes a per se conflict of interest.” Id.
Here, there is a key fact that was missing from Miguel Hernandez. Hall was the victim, and so
defendant and Hall were antagonistic in ways that the defendant and the witness in Miguel
Hernandez were not.
¶ 33 Having concluded that Gottreich had a per se conflict, the next question is whether
defendant waived his right to conflict-free counsel. See Juan Hernandez, 231 Ill. 2d at 143 (per se
conflict is grounds for automatic reversal unless the defendant waived his right to conflict-free
counsel). To be valid, a waiver must be knowing, meaning that the defendant was admonished as
to the existence of the conflict and its significance. People v. Acevedo, 2018 IL App (2d) 160562,
¶ 18. Courts indulge “every reasonable presumption against *** waiver.” (Internal quotation
marks omitted.) Lawson, 163 Ill. 2d at 209. Below, the circuit court posited that defendant knew
that Hall had paid Gottreich. That is insufficient. Gottreich never brought the conflict to the court’s
attention, and there is no evidence that defendant was informed of how that conflict could affect
his representation. See Acevedo, 2018 IL App (2d) 160562, ¶ 20 (the defendant was not advised
of the significance of the conflict where counsel never explained to the court what information he
had provided to the defendant about the ramifications of the conflict and the defendant did not
indicate “that he knew the possible impact that the conflict could have on counsel’s ability to
zealously represent him”); Poole, 2015 IL App (4th) 130847, ¶ 36 (the defendant was not
adequately informed of the significance of the conflict where the record did not reveal “whether
[he] was advised of the conflict in a way he might understand how it could affect his
representation”). Because the record does not indicate that defendant knowingly waived the
conflict, reversal and a new trial are required.
-12- No. 1-17-1484
¶ 34 The circuit court expressed concern about opening the door to claims for the many other
instances where victims pay defendants’ legal fees. Yet, that is “a risk that this court is prepared
to take to ensure adequate representation for defendants.” (Internal quotation marks omitted.)
Cleveland, 2012 IL App (1st) 101631, ¶ 51 (citing People v. Coslet, 67 Ill. 2d 127, 136 (1977)).
That a per se conflict exists does not mean that victims can never pay defendants’ attorney fees.
All Gottreich had to do in this case was inform the court of the conflict, rather than decide for
himself that the conflict was not a problem. The trial court could then have secured the necessary
waiver after an informed decision from defendant.
¶ 35 III. CONCLUSION
¶ 36 For the foregoing reasons, we reverse the circuit court’s denial of defendant’s third-stage
postconviction petition, reverse defendant’s conviction, and remand for a new trial.
¶ 37 Reversed and remanded.
-13- No. 1-17-1484
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 11-CR- 14557; the Hon. Nicholas Ford, Judge, presiding.
Attorneys James E. Chadd, Patricia Mysza, and Deborah Nall, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. for Spellberg and Noah Montague, Assistant State’s Attorneys, of Appellee: counsel), for the People.
-14-