People v. Guerrero

2023 IL App (1st) 211026-U

• Court: Appellate Court of Illinois
• Decided: February 14, 2023
• Docket: 1-21-1026
• Status: Unpublished

Opinion

2023 IL App (1st) 211026-U

SECOND 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

2 No. 1-21-1026

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.

3 No. 1-21-1026

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

4 No. 1-21-1026

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

5 No. 1-21-1026

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

6 No. 1-21-1026

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.

7 No. 1-21-1026

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

8 No. 1-21-1026

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

9 No. 1-21-1026

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

10 No. 1-21-1026

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

11 No. 1-21-1026

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

12 No. 1-21-1026

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

13 No. 1-21-1026

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

14 No. 1-21-1026

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

15 No. 1-21-1026

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

16 No. 1-21-1026

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

17 No. 1-21-1026

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

18 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

19 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

20 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

21 No. 1-21-1026

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

22 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

23 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

24 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

25 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

26 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

27 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

28 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

29 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

30 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

31 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.