NOTICE 2023 IL App (4th) 220604-U This Order was filed under FILED Supreme Court Rule 23 and is NO. 4-22-0604 May 4, 2023 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate IN THE APPELLATE COURT under Rule 23(e)(1). Court, IL OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Winnebago County JASON RANDOLPH, ) No. 19CF1579 Defendant-Appellant. ) ) Honorable ) Jennifer J. Clifford, ) Judge Presiding.
JUSTICE TURNER delivered the judgment of the court. Justices Cavanagh and Harris concurred in the judgment.
ORDER
¶1 Held: Defense counsel did not have a per se conflict of interest, and defendant failed to show he was denied effective assistance of counsel for counsel’s failure to investigate defendant’s alibi witnesses.
¶2 In February 2020, a grand jury indicted defendant, Jason Randolph, with one
count of home invasion (720 ILCS 5/19-6(a)(2) (West 2018)), one count of aggravated domestic
battery (720 ILCS 5/12-3.3(a-5) (West 2018)), two counts of domestic battery (720 ILCS 5/12-
3.2(a)(1), (a)(2) (West 2018)), and one count of unlawful restraint (720 ILCS 5/10-3(a) (West
2018)). After a June 2020 jury trial, the jury found defendant not guilty of aggravated domestic
battery but guilty of the four other charges. Thereafter, defense counsel filed a motion for a new
trial, and defendant filed pro se a motion to dismiss counsel. After an inquiry pursuant to People
v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984), the Winnebago County circuit court
appointed defendant new counsel. New counsel filed an amended motion for a new trial and an addendum. However, defendant chose to proceed pro se and filed his own amended motion for a
new trial. He later filed an addendum. In January 2022, the court held a hearing on defendant’s
amended motion for a new trial and its addendum and denied it. At the May 2022 sentencing
hearing, defendant was again represented by counsel. The court found the unlawful restraint
count merged with one count of domestic battery and sentenced defendant to concurrent prison
terms of 10 years for home invasion and 6 years on each count of domestic battery. Defendant
filed a motion to reconsider his sentence, which the court denied.
¶3 Defendant appeals, contending he is entitled to a new trial because trial counsel
(1) operated under a per se conflict of interest and (2) was ineffective by not investigating
defendant’s alibi witnesses. We affirm.
¶4 I. BACKGROUND
¶5 The grand jury indictments alleged the crimes took place on June 23, 2019, and
the victim was Jennifer Salcedo. Assistant Public Defender Anne Stevens represented defendant
from his arraignment on the indictments until postjudgment proceedings.
¶6 Before trial, the State filed numerous motions in limine, including one seeking to
admit certified documentation of three of defendant’s prior convictions for domestic violence
related charges and substantive evidence of the facts and circumstances of those offenses to
argue defendant’s propensity to commit acts of domestic violence against Salcedo pursuant to
sections 115-7.4(a) and 115-20(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-
7.4(a), 115-20(a) (West 2018)). One of the three convictions the State sought to admit was
defendant’s aggravated battery conviction in Winnebago County case No. 17-CF-519. In June
2020, the trial court held a hearing on the motions in limine. Stevens objected to the
aforementioned motion, asserting the admission of the prior convictions was very prejudicial to
-2- defendant. The court granted the motion and allowed the admission of the three convictions,
guilty pleas, bills of indictment, and the factual circumstances of the crimes. However, it
emphasized the State could not present a bill of indictment for a charge to which defendant had
not been found guilty. After the hearing, Stevens filed a motion seeking to exclude the
admission of the charge to which defendant pleaded guilty in case No. 17-CF-519. In that case,
the charge to which defendant pleaded guilty was an amended one, and the original charge was
still visible because the amended charge was simply handwritten notations on the original
charge. The court agreed with Stevens about the visibility of the original charge and suggested
the attorneys come up with a solution. The parties agreed some of the other-crimes evidence
would be admitted through a stipulation. As to case No. 17-CF-519, the stipulation stated the
following: “That the defendant, Jason Randolph, has previously been convicted of the offense of
aggravated battery to Jennifer Salcedo which occurred on February 19, 2017 in Winnebago
County, IL case number 17CF519.”
¶7 At defendant’s June 2020 jury trial, the State presented the testimony of Salcedo;
Bonnie Birkett, Salcedo’s mother; Officer Lucas Davidson; and Lieutenant Jeffrey Hodges. The
State presented numerous photographs of Salcedo, her home, and text messages between Salcedo
and Shannon Kirchner, defendant’s cousin. In addition to the aforementioned stipulation about
other-crimes evidence, certified convictions for defendant’s three prior convictions related to acts
of domestic violence were also admitted. The evidence relevant to the issues on appeal follows.
¶8 Salcedo testified defendant was her boyfriend for four years and they had lived
together in the upstairs apartment at 1912 Douglas Street in Rockford, Illinois. On June 23,
2019, Salcedo and defendant had not been in a relationship for a while and defendant was no
longer living with Salcedo on Douglas Street. On that afternoon, Salcedo had been texting
-3- Kirchner and defendant’s uncle, Eugene Schultz, about picking up a few of defendant’s
belongings. State’s exhibit No. 19 showed Salcedo sent her first text to them at 2:40 p.m., and
Kirchner responded at 4:09 p.m., indicating she would pick up anything of value like movies and
instructing Salcedo to throw out anything with no value.
¶9 At some point, Salcedo heard a knock at the door. When she looked out the
window, she thought she saw Eugene’s truck. When Salcedo opened the door, defendant was
there, and she asked him to leave. Defendant pushed Salcedo down onto the stairs and locked
the door. He put Salcedo’s arms behind her back and led her up the stairs. Once in her
apartment, defendant pushed Salcedo to the floor and began punching Salcedo in the face and on
her sides. Defendant then grabbed an extension cord, which he wrapped around Salcedo’s neck
and squeezed it. Defendant then tied up Salcedo’s arms with a different extension cord and tied
that extension cord to the coffee table. When she stopped fighting defendant, he tied her legs up
with another extension cord. Defendant continued to squeeze the cord around her neck, which
prevented her from breathing. While defendant was attacking her, he was calling Salcedo names
and was angry at her for getting an order of protection. Defendant eventually left the room and
said, “ ‘I’m going to come back and kill you.’ ” Salcedo was able to loosen her arms enough to
use her Apple watch to call her mother, Bonnie Birkett. Birkett answered the call, and Salcedo
told her to call 9-1-1 because defendant had been to her apartment and tied her up. State’s
exhibit No. 16 showed Salcedo called Birkett at 6:32 p.m. Salcedo estimated it was about an
hour from when defendant showed up until she went to the hospital.
¶ 10 Birkett testified that, after talking with Salcedo, she told her husband to call 9-1-1
and ran to her car to drive to Salcedo’s apartment. Birkett estimated it took her six minutes to
get to Salcedo’s apartment. When she entered Salcedo’s apartment, Birkett observed Salcedo
-4- lying on the floor with her hands and ankles bound. Salcedo’s hands were bound to the coffee
table, and Salcedo appeared to have been beaten up. Since no one else was at the apartment,
Birkett called 9-1-1. Within five minutes, the paramedics arrived, and the police officers arrived
within three minutes of the paramedics. Salcedo was taken to the hospital via ambulance.
Birkett did not see defendant at Salcedo’s apartment.
¶ 11 Lieutenant Hodges testified he was a firefighter and paramedic. At around 7 p.m.
on June 23, 2019, he received a dispatch to 1912 Douglas Street. He arrived before the police
officers. A woman met him at the curb and told him her daughter was upstairs, bound, and
battered. Lieutenant Hodges went upstairs and observed Salcedo on the floor with her ankles
and wrists bound. Her wrists were tied to the coffee table, and a cellphone charging cord was
around her neck. Since Salcedo was not having trouble breathing, Lieutenant Hodges did not
remove the cords. When the police arrived, he stepped back to allow them to secure the scene
and take photographs. Thereafter, Lieutenant Hodges removed the cords and again assessed
Salcedo. She had facial swelling and bruising.
¶ 12 Officer Davidson testified he was dispatched to the scene at 7:03 p.m. He also
observed a cord around Salcedo’s ankles, another cord around her wrists that was attached to the
leg of the coffee table, and a third cord around her neck. Salcedo had bruising on her face and
chin. Officer Davidson also observed Salcedo at the hospital. There, he observed Salcedo’s face
was swollen and she had bruising on her left cheek and chin.
¶ 13 As to the facts and circumstances underlying case No. 17-CF-519, Salcedo
testified defendant and Brian Ninnis were living with her at 1912 Douglas Street. On February
19, 2017, Salcedo came home from work and defendant took her cellphone away from her.
When she tried to get her cellphone back, defendant put his forearm around her neck and pulled
-5- her into his chest. Salcedo could not breathe. Salcedo got free and ran into the bathroom.
Defendant followed her into the bathroom and again put his forearm around her neck. She again
could not breathe. Ninnis came into the bathroom and made defendant stop. Defendant told
Salcedo he was going to kill her. The certified conviction noted the order of conviction for the
aggravated battery was on March 12, 2018.
¶ 14 Defendant did not present any evidence. After hearing the parties’ arguments, the
jury found defendant not guilty of aggravated domestic battery but guilty of home invasion,
unlawful restraint, and two counts of domestic battery.
¶ 15 Stevens filed a motion for a new trial. Defendant filed pro se a motion to dismiss
counsel, asserting Stevens was ineffective for, among other things, failing to properly investigate
defendant’s alibi. Defendant contended Mike Kawalec and Mandi Whittmier would have
testified that, on June 23, 2019, defendant was with them at a cookout and watching a paid
World Wrestling Entertainment event. Defendant also noted Stevens prosecuted him in 2017.
Defendant later filed a supplement to his motion to dismiss counsel. On August 28, 2020, the
trial court commenced a Krankel inquiry into defendant’s ineffective assistance of counsel
claims. At the conclusion of the inquiry, the court appointed Paul Vella to represent defendant.
¶ 16 In November 2020, Vella filed an amended motion for a new trial raising seven
contentions, which included a conflict of interest allegation and the failure to present an alibi
defense with defendant’s two alibi witnesses. In May 2021, Vella filed an addendum to the
amended motion for a new trial, which identified the two alibi witnesses but noted no affidavits
were available. In July 2021, defendant filed a pro se amended motion for a new trial,
complaining of both Stevens’s and Vella’s representation of him. The trial court entered an
order dismissing Vella as defendant’s attorney and allowing defendant to proceed pro se on his
-6- amended motion for a new trial. In October 2021, defendant filed an addendum to his amended
motion for a new trial.
¶ 17 In January 2022, the trial court held a hearing on defendant’s pro se amended
motion for a new trial and addendum. At the beginning of the hearing, defendant explained he
did not have any witnesses because he could not reach Kawalec and Whittmier and did not want
Kirchner and Joseph Schultz, Eugene’s brother, coming to court due to COVID-19. (Eugene had
passed away.) The State noted it was giving defendant four signed and dated letters, which the
State had received from Vella. Defendant examined the letters and chose to present the letters
prepared by Kirchner and Joseph. The State sought to present the other two letters, both of
which were prepared by Kawalec. The May 5, 2021, letter by Kawalec discussed the night
defendant was at the home of Kawalec’s parents and noted defendant came over between 11 and
11:30 p.m. The May 7, 2021, letter by Kawalec stated that, on June 23, 2019, defendant came
over around 10 a.m., left around midafternoon, and came back sometime around 10 to 11 p.m.
Kawalec did not know where defendant went but noted defendant was supposedly at his aunt’s.
Defendant objected to the admission of both letters, noting Kawalec had started using narcotics
again. The court admitted Kawalec’s letters over defendant’s objection. During the proceedings,
defendant presented other documents that are not relevant to the issues on appeal. Additionally,
defendant testified on his own behalf and presented the testimony of Stevens. The testimony
relevant to the issues on appeal follows.
¶ 18 Stevens testified defendant did ask her to look into an alibi defense. After an
investigation, she decided such a defense would not be a prudent trial strategy. Defendant had
informed her Kawalec, one of his alibi witnesses, had a serious narcotics problem, and Stevens
did not think that would bolster defendant’s credibility. Stevens testified defendant had said
-7- Kawalec was a recovering addict. Stevens never contacted Kawalec. Stevens also recalled
defendant mentioning a woman, who was Kawalec’s girlfriend, but she could not recall her
name. Additionally, Stevens remembered defendant had mentioned a Pay-Per-View event the
evening of the alleged attack. She did look into it and confirmed a wrestling event did take place
that night. Defendant also told her he left Kawalec and Whittmier due to rain because he was
riding a mountain bike. Stevens confirmed it rained that evening. In addition to Kawalec’s
narcotics problem, Stevens had concerns about presenting the evidence about the mountain bike
because defendant had made comments he could not get up and down stairs very well due to past
injuries, knee surgeries, and his weight.
¶ 19 Furthermore, Stevens testified she worked in the Winnebago County State’s
Attorney’s Office from August 2014 to March 2019. She began working in the public defender’s
office in April 2019 and returned to the state’s attorney’s office in May 2021. Stevens did not
seek employment again with the state’s attorney’s office until after her representation of
defendant ended. She also testified she received defendant’s case after January 23, 2020, when
she was employed by the public defender’s office. Stevens was never involved in defendant’s
current case as a prosecutor. Moreover, Stevens denied having any type of contemporaneous or
prior association with Salcedo.
¶ 20 Additionally, Stevens admitted she was the assistant state’s attorney assigned to
drug court when defendant had cases in that court. Defendant had cases in drug court from July
2017 to October 2017. Stevens explained a defendant could be sentenced to probation
supervised by drug court. Such probation was intensive, with the defendant appearing at least
once a week in court. Stevens noted drug court was generally not adversarial. The only hearings
held in drug court were petitions to vacate probation. When defendant’s cases were removed
-8- from drug court in October 2017, Stevens had no more involvement with them. She did not
conduct any trial preparation and was not involved in any trials or hearings in those cases.
Stevens also testified she never met Salcedo. She denied Salcedo came into drug court and
asked Stevens to drop the order of protection against defendant. Upon being assigned to
defendant’s current case, Stevens spoke with the public defender and another assistant public
defender about whether a conflict of interest existed due to her involvement in defendant’s
criminal cases in 2017, and both said they did not believe there was a conflict. Stevens also
spoke with defendant about the situation, and he was fine with Stevens representing him.
¶ 21 Defendant testified he was with Kawalec and Whittmier at the home of Kawalec’s
parents from 11 a.m. to around 8:30 p.m. on June 23, 2019. It was just the three of them.
Defendant stated he had contact with Kawalec and Whittmier until his trial but had not been able
to contact them since his guilty verdict.
¶ 22 The trial court announced its decision in March 2022, denying defendant’s pro se
posttrial motion. At defendant’s request, the court appointed defendant counsel for sentencing.
After a May 2022 hearing, the court found defendant’s conviction for unlawful restraint merged
with one of the domestic violence counts. The court then sentenced defendant to concurrent
prison terms of 10 years for home invasion and 6 years for each count of domestic battery. All
of the sentences were to run consecutively to defendant’s five-year prison sentence in
Winnebago County case No. 18-CF-2904. In June 2022, defendant filed a motion to reconsider
his sentence, which the court denied on July 15, 2022.
¶ 23 That same day, defendant filed a notice of appeal. On July 26, 2022, defendant
filed a timely amended notice of appeal in compliance with Illinois Supreme Court Rule 606 (eff.
Mar. 12, 2021). See Ill. S. Ct. R. 606(d) (eff. Mar. 12, 2021); R. 303(b)(5) (July 1, 2017).
-9- Accordingly, this court has jurisdiction of defendant’s convictions and sentences under Illinois
Supreme Court Rule 603 (eff. Feb. 6, 2013).
¶ 24 II. ANALYSIS
¶ 25 A. Per Se Conflict of Interest
¶ 26 Defendant asserts his trial counsel operated under a per se conflict of interest
because counsel prosecuted him in a prior criminal case, which the State had admitted in this
case as evidence of defendant’s propensity to commit domestic violence. The State disagrees,
contending defense counsel did not personally prosecute defendant in the prior case and never
prosecuted defendant in this case. When, as here, the underlying facts are undisputed, the
question of whether a per se conflict exists presents a legal question, which we review de novo.
People v. Yost, 2021 IL 126187, ¶ 35, 184 N.E.3d 269.
¶ 27 “A criminal defendant’s sixth amendment right to effective assistance of counsel
includes the right to conflict-free representation.” Yost, 2021 IL 126187, ¶ 36. “Illinois law
recognizes two types of conflict of interest—actual and per se.” Yost, 2021 IL 126187, ¶ 37. In
this case, defendant only asserts a per se conflict of interest. “A per se conflict of interest exists
when specific facts about the defense attorney’s status, by themselves, create a disabling
conflict.” Yost, 2021 IL 126187, ¶ 39. It generally “arises when defense counsel has a
connection to a person or entity that would benefit from an unfavorable verdict for the
defendant.” Yost, 2021 IL 126187, ¶ 39. When a per se conflict exists, the defendant does not
have to show actual prejudice, and automatic reversal of the criminal conviction is required
unless the defendant had waived his right to conflict-free counsel. Yost, 2021 IL 126187, ¶ 39.
Our supreme court only recognizes the following three categories of a per se conflict of interest:
“(1) when defense counsel has a contemporaneous association with the victim, the
- 10 - prosecution, or an entity assisting the prosecution; (2) when defense counsel
contemporaneously represents a prosecution witness; and (3) when defense
counsel was a former prosecutor who was personally involved in the prosecution
of the defendant.” Yost, 2021 IL 126187, ¶ 66.
In this case, defendant asserts his trial counsel fell under the third category.
¶ 28 In People v. Alexander, 2019 IL App (4th) 170425, ¶¶ 5, 18, 147 N.E.3d 935, this
court addressed whether a defense counsel’s status as a former prosecutor who appeared at the
defendant’s guilty-plea hearing in 2005, which was 10 years before the defendant’s current
charges, by itself, constituted a per se conflict. In rejecting the defendant’s argument, this court
construed the third category of per se conflicts to mean “such a conflict exists when defense
counsel was a former prosecutor who had been personally involved with the prosecution of the
defendant in the very case in which the defendant was then on trial.” (Emphasis in original.)
Alexander, 2019 IL App (4th) 170425, ¶ 21. In that case, no evidence showed defense counsel’s
former work as a prosecutor related in any way to the defendant’s current prosecution, and thus
the defendant did not come close to establishing a per se conflict of interest. Alexander, 2019 IL
App (4th) 170425, ¶ 23. The facts in Alexander are similar to People v. Franklin, 75 Ill. 2d 173,
178-79, 387 N.E.2d 685, 687 (1979), which found no per se conflict where the defense counsel
had less than five years earlier prosecuted and convicted the defendant on a prior charge but was
not involved in the defendant’s current case as a prosecutor.
¶ 29 In his briefs, defendant asserts his case is distinguishable from Alexander and
Franklin and contends his defense counsel’s status is more like the defense counsel who was a
former prosecutor in the very same case because his defense counsel’s role as a former
prosecutor does have a connection to his current case. The case cited by defendant as most
- 11 - factually similar to this matter is People v. Everhart, 405 Ill. App. 3d 687, 701, 939 N.E.2d 82,
94 (2010), in which the reviewing court found defense counsel’s voluntary withdrawal due to a
conflict of interest was proper. There, the defendant’s original counsel had previously worked as
an assistant state’s attorney and had prosecuted the defendant in the prior case that was admitted
as other-crimes evidence in his current case. Everhart, 405 Ill. App. 3d at 701, 939 N.E.2d at 94.
After the trial court granted the State’s motion to allow the other-crimes evidence, defense
counsel voluntarily withdrew from the defendant’s case, asserting a conflict of interest.
Everhart, 405 Ill. App. 3d at 701, 939 N.E.2d at 94. As noted by the State, the reviewing court
in Everhart did not address whether a per se conflict existed.
¶ 30 Defendant also cites People v. Kester, 66 Ill. 2d 162, 168, 361 N.E.2d 569, 572
(1977), and People v. Lawson, 163 Ill. 2d 187, 214, 644 N.E.2d 1172, 1185 (1994), both of
which involved a defense counsel who also appeared as a prosecutor in the very same case. In
Kester, 66 Ill. 2d at 164, 361 N.E.2d at 570, the defense counsel made numerous appearances on
behalf of the State after the defendant was indicted by the grand jury and was present on behalf
of the State when the defendant was furnished a copy of the indictment. Defense counsel then
left the state’s attorney’s office and went to the public defender’s office, where he was given the
duty of representing defendant on the same indictment. Kester, 66 Ill. 2d at 164, 361 N.E.2d at
570. In finding a per se conflict of interest, the supreme court explained that, with such a
situation, a possibility existed defense counsel “might be subject to subtle influences which could
be viewed as adversely affecting his ability to defend his client in an independent and vigorous
manner.” Kester, 66 Ill. 2d at 167, 361 N.E.2d at 572. The Kester court gave the example that
defense counsel may be subliminally reluctant to attack pleadings or other decisions by the
prosecution which he or she may have been personally involved with or responsible for. Kester,
- 12 - 66 Ill. 2d at 167, 361 N.E.2d at 572. Additionally, in response to the State’s argument defense
counsel only appeared in routine matters while a prosecutor, the supreme court was not
persuaded an inquiry into the precise nature and extent of defense counsel’s personal
involvement was either necessary or desirable, given defense counsel had “repeatedly appeared
on behalf of the State in the particular case in which he is now representing [the] defendant.”
Kester, 66 Ill. 2d at 168, 361 N.E.2d at 572. In Lawson, 163 Ill. 2d at 206, 644 N.E.2d at 1181,
the defense counsel had appeared on behalf of the State at the defendant’s arraignment in the
same criminal proceeding. The Lawson court found that, like in Kester, the defense counsel
could have developed “ ‘subliminal reluctance to attack pleadings or other actions and decisions
by the prosecution which he may have been personally involved with or responsible for.’ ”
(Emphasis in original.) Lawson, 163 Ill. 2d at 214, 644 N.E.2d at 185 (quoting Kester, 66 Ill. 2d
at 167, 361 N.E.2d at 572).
¶ 31 Here, Stevens, defendant’s trial counsel, had no involvement as a prosecutor in
defendant’s current case. In case No. 17-CF-519, which was admitted as other-crimes evidence
in this case, Stevens was the prosecutor assigned to preside over drug court. The trial court
reviewed the docket entries for case No. 17-CF-519, and only the trial court’s description of
those contents is presented on appeal. As the appellant, defendant bears the burden of providing
this court with a complete record sufficient to support his claims of error, and thus any doubts
that arise from the incompleteness of the record will be resolved against defendant. People v.
Lopez, 229 Ill. 2d 322, 344, 892 N.E.2d 1047, 1060 (2008). According to the trial court, on
April 13, 2017, Assistant State’s Attorney Heather Kruse filed a motion to vacate defendant’s
probation based on two driving under the influence charges, a charge of disorderly conduct, and
a violation of bail bond. On July 25, 2017, defendant consented to drug court and was released
- 13 - from custody two days later. Stevens appeared as the prosecutor on 14 of defendant’s court
dates in drug court. Most of the hearing dates were status hearings. The court noted it did not
appear Stevens conducted any hearings or trials or had personal contact with defendant or
Salcedo as part of drug court. At the September 17, 2017, hearing, Stevens made an oral motion
to revoke defendant’s bond because he had been arrested on a new charge. At an October 3,
2017, Illinois Supreme Court Rule 402 (eff. July 1, 2012) conference, defendant was discharged
from drug court, and Stevens had no more involvement in defendant’s case. In December 2017,
a different prosecutor filed an amended petition to vacate probation. The trial evidence in this
case also revealed an order of conviction for aggravated battery was entered on March 12, 2018.
¶ 32 Applying the case law to the aforementioned facts, we decline to deviate from our
construction of the third category of per se conflicts set forth in Alexander, which limits the
per se conflict to a defense counsel who was involved as a prosecutor in the case in which the
defendant was on trial. See Alexander, 2019 IL App (4th) 170425, ¶ 21. The facts before us do
not raise a concern about defense counsel having a subliminal reluctance to attack pleadings or
other actions and decisions by the prosecution which she may have been personally involved
with or responsible for. Since Stevens was never a formal prosecutor in this case, the language
in Kester declining to examine the precise nature and extent of defense counsel’s prior
involvement as a prosecutor is not applicable here. From the trial court’s description of
Stevens’s actions in case No. 17-CF-519, she played more of a supervisory role over defendant’s
case than a prosecutorial role. Based on the record before us, we disagree with defendant’s
assertion Stevens participated in securing defendant’s conviction in case No. 17-CF-519. No
evidence was presented Stevens participated in the proceedings in case No. 17-CF519 that led to
defendant’s indictment, the revocation of his probation, or his conviction. Furthermore,
- 14 - defendant makes several assertions about Stevens’s role at the Rule 402 conference. However,
the court only noted defendant was discharged from drug court at a Rule 402 conference at
which Stevens was present. The court’s statements do not reveal what Stevens did at the Rule
402 conference. As such, the only adverse action against defendant on the record is Stevens’s
moving to revoke defendant’s bond. Her representation of defendant in this case did not require
her to attack her decision to seek revocation of defendant’s bond in case No. 17-CF-519. Thus,
the concerns raised in Kester and Lawson are not present here.
¶ 33 Accordingly, we find the trial court did not err by concluding Stevens’s
representation of defendant did not give rise to a per se conflict.
¶ 34 B. Ineffective Assistance of Counsel
¶ 35 Defendant also asserts he was denied effective assistance of counsel because
counsel “failed to investigate” defendant’s alibi witnesses. The State disagrees. Our review of
an ineffective assistance of counsel claim is de novo. People v. Hale, 2013 IL 113140, ¶ 15, 996
N.E.2d 607.
¶ 36 This court analyzes ineffective assistance of counsel claims under the standard set
forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Evans, 186 Ill. 2d 83, 93, 708
N.E.2d 1158, 1163 (1999). To obtain reversal under Strickland, a defendant must prove (1) his
counsel’s performance failed to meet an objective standard of competence and (2) counsel’s
deficient performance resulted in prejudice to the defendant. Evans, 186 Ill. 2d at 93, 708
N.E.2d at 1163. To satisfy the deficiency prong of Strickland, the defendant must demonstrate
counsel made errors so serious and counsel’s performance was so deficient that counsel was not
functioning as “counsel” guaranteed by the sixth amendment (U.S. Const., amend. VI). Evans,
186 Ill. 2d at 93, 708 N.E.2d at 1163. Further, the defendant must overcome the strong
- 15 - presumption the challenged action or inaction could have been the product of sound trial
strategy. Evans, 186 Ill. 2d at 93, 708 N.E.2d at 1163. To satisfy the prejudice prong, the
defendant must prove a reasonable probability exists that, but for counsel’s unprofessional errors,
the proceeding’s result would have been different. Evans, 186 Ill. 2d at 93, 708 N.E.2d at 1163-
64. The Strickland Court noted a case should be decided on the ground of lack of sufficient
prejudice rather than counsel’s constitutionally deficient representation if it is easier to do so.
Strickland, 466 U.S. at 697.
¶ 37 Defendant fails to establish the prejudice prong of the Strickland test. “Satisfying
the prejudice prong necessitates a showing of actual prejudice, not simply speculation that
defendant may have been prejudiced.” People v. Patterson, 2014 IL 115102, ¶ 81, 25 N.E.3d
526. The testimony at trial showed Salcedo was attacked sometime between 6 and 6:30 p.m. on
June 23, 2019. At the hearing on the posttrial motion, defendant testified he was with Kawalec
and Whittmier from 11 a.m. to around 8:30 p.m. that day. However, he did not present any
evidence Kawalec and Whittmier would have testified defendant was in fact with them during
that period. He blames Stevens’s failure to investigate his alibi witnesses for the lack of
evidence. However, the State did present two unsworn, handwritten notes from Kawalec,
indicating defendant was not with Kawalec at the time Salcedo was attacked. Defendant’s
appointed counsel on his posttrial motion had obtained the notes. In the notes, Kawalec stated
defendant came over around 10 a.m. on that day, left midafternoon, and did not return until
between 10 and 11 p.m. While defendant claims he could not contact Kawalec and Whittmier,
appointed counsel was able to make contact with Kawalec, as evidenced by the handwritten
notes. As to his claim Kawalec changed his story, defendant presented no other evidence
supporting his self-serving assertion Kawalec changed his story about defendant’s presence on
- 16 - June 23, 2019, because Kawalec had started using drugs again after defendant’s trial. Thus,
defendant’s suggestion Kawalec and Whittmier would testify defendant was with them at the
time of the attack on Salcedo is pure speculation. We note defendant chose to proceed pro se on
his posttrial motion and dismiss the attorney appointed to assist him with his posttrial motion.
As a result, any failure to present supporting evidence was defendant’s fault, and we disagree
with his attempts to bootstrap the blame onto Stevens.
¶ 38 Since defendant failed to establish prejudice, the trial court properly denied his
ineffective assistance of counsel claim.
¶ 39 III. CONCLUSION
¶ 40 For the reasons stated, we affirm the Winnebago County circuit court’s judgment.
¶ 41 Affirmed.
- 17 -