People v. Dopson

• Decision Date: 28 September 2011
• Docket Number: No. 4–10–0014.,4–10–0014.
• Citation: 958 N.E.2d 367,2011 IL App (4th) 100014,354 Ill.Dec. 624
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Michael Dion DOPSON, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2011 IL App (4th) 100014

354 Ill.Dec. 624

958 N.E.2d 367

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Michael Dion DOPSON, Defendant–Appellant.

No. 4–10–0014.

Appellate Court of Illinois, Fourth District.

Sept. 28, 2011.

Michael J. Pelletier, State Appellate Defender, Johannah B. Weber, Deputy Defender, Lawrence J. O'Neill, Asst. Appellate Defender, Office of State Appellate Defender, for Michael Dion Dopson.

William A. Yoder, McLean County State's Attorney, Patrick Delfino, Director, Robert J. Biderman, Dep. Director, James C. Majors, Staff Atty., State's Attorneys Appellate Prosecutor, for People.

OPINION

Justice STEIGMANN delivered the judgment of the court, with opinion.

[354 Ill.Dec. 626] ¶ 1 Following a May 2006 bench trial, the trial court convicted defendant, Michael Dion Dopson, of (1) delivery of a controlled substance (less than one gram of a substance containing cocaine) (720 ILCS 570/401(d) (West 2004)) and (2) possession of a controlled substance with intent to deliver (720 ILCS 570/ 401(d) (West 2004)). The court later sentenced defendant to 12 years in prison.

¶ 2 In March 2008, defendant pro se filed a petition for relief under the Post–Conviction Hearing Act (725 ILCS 5/122–1 through 122–8 (West 2008)), arguing, in pertinent part, that he was afforded ineffective assistance of counsel because his trial counsel contemporaneously represented a State witness. In December 2009, the trial court conducted a hearing on defendant's postconviction petition and denied it, finding that defendant failed to establish a substantial showing of a deprivation of his constitutional right to effective assistance of counsel.

¶ 3 Defendant appeals, arguing that the trial court's denial of his postconviction petition was manifestly erroneous. We agree and reverse and remand for further proceedings.

¶ 4 I. BACKGROUND

¶ 5 On January 27, 2006, Anna Trotter, working as a confidential informant (CI) for the Bloomington police department, assisted in a controlled buy that resulted in defendant's arrest and ultimate conviction. Trotter's cooperation stemmed from her arrest the previous day for possession of cocaine and drug paraphernalia. It was not until after that controlled buy from defendant that the State promised not to charge her with possession of cocaine and drug paraphernalia in exchange for her testimony against defendant. At the time of the controlled buy, Trotter had a February 2005 forgery charge (case No. 05–CF–157) and a November 2005 obstructing-justice charge (case No. 05–CF–1138) pending against her in McLean County. John Wright of the McLean County public defender's office represented Trotter on both of those cases. Between January 27, 2006, and defendant's May 23, 2006, trial, the State charged Trotter in the following four additional cases in McLean County: (1) case No. 06–CF–356 (theft with a prior theft conviction); (2) case No. 06–CM–618 (possession of drug paraphernalia) (unrelated to the January 26, 2006, arrest); (3) case No. 06–DT–282 (driving under the influence, combination drug/alcohol and illegal transportation) and (4) case No. 06–TR–9647 (a traffic violation).

¶ 6 At 10 a.m. on March 13, 2006, Wright appeared on Trotter's behalf for status hearings in the forgery case and the unrelated obstructing-justice case. At 10:30 a.m. that same day, Wright appeared for the first time on defendant's behalf in this case. All of the appearances that day were presided over by Judge Ronald Dozier. At 10 a.m. on April 24, 2006, Wright again appeared before Judge Dozier on behalf of Trotter for final status hearings in those two cases and, at 11 a.m., separately on behalf of defendant for a status hearing in this case.

¶ 7 On May 1, 2006, the State notified Wright through a discovery disclosure that Trotter was the CI who assisted the police in defendant's arrest. This disclosure revealed that the State planned to call Trotter as a witness against defendant at his trial. Sometime after this disclosure, both of Trotter's pending cases, which had been handled by Wright up until that point, were transferred to Jim Tusek of the McLean County public defender's office. (The record does not contain any explanation for this change of counsel.) At that point, Wright had appeared on Trotter's behalf 14 separate times in the preceding 15 months, including 10 appearances at which Trotter was physically present in the courtroom.

[354 Ill.Dec. 628] ¶ 8 At defendant's May 23, 2006, bench trial, Trotter testified as a State witness about her purchase of illicit drugs from defendant. During the State's direct examination of Trotter, she was questioned about each of her pending cases. The State also questioned Trotter concerning the two cases in which Wright had represented her, but did not delve into the facts of those pending cases or reveal that Wright was her counsel. Trotter testified that in exchange for her testimony against defendant, the State agreed not to charge her in connection with her January 26, 2006, arrest for possession of cocaine and drug paraphernalia. Trotter also testified that, despite the absence of any promise regarding her pending cases, she “ absolutely” hoped that her testimony against defendant would garner her some benefit.

¶ 9 Wright, who represented defendant at his trial, cross-examined Trotter about (1) the January arrest that led to her agreement to cooperate as a CI; (2) her failure to abide by that agreement, which she apparently violated by using drugs and committing additional crimes; (3) her expectations about receiving some benefit in exchange for her testimony; and (4) her mental health. Wright did not challenge Trotter's veracity by eliciting testimony regarding any of her pending cases, including the forgery charge and the obstructing-justice charges on which he represented her.

¶ 10 Following the presentation of additional evidence and argument, the trial court convicted defendant of (1) possession of a controlled substance (less than one gram of a substance containing cocaine) (720 ILCS 570/401(d) (West 2004)) and (2) possession of a controlled substance with intent to deliver (720 ILCS 570/401(d) (West 2004)). The court later sentenced defendant to 12 years in prison.

¶ 11 Defendant appealed, and this court affirmed. People v. Dopson, No. 4–06–0972, 374 Ill.App.3d 1143, 348 Ill.Dec. 691, 944 N.E.2d 932 (Aug. 24, 2007) (unpublished order under Supreme Court Rule 23).

¶ 12 In July 2008, defendant pro se filed a postconviction petition under the Act (725 ILCS 5/122–1 through 122–8 (West 2008)), arguing that he was denied his right to effective assistance of counsel because his attorney was operating under a per se conflict of interest arising from his prior and contemporaneous representation of Trotter. At a November 2009 third-stage evidentiary hearing on defendant's postconviction petition, Wright testified, in pertinent part, that he did not recall (1) representing Trotter in any cases (specifically, Wright stated, “I don't know if I recall explicitly in terms of having my own recollection”); (2) the specifics about Trotter's cases; (3) negotiations with the State regarding Trotter's cases; (4) whether he recognized Trotter as his former client during defendant's trial; (5) the nature of the questions he asked of Trotter at defendant's trial; (6) whether he revealed to defendant or anyone in defendant's family that he had previously represented Trotter; (7) the date he began representing defendant; (8) the date that he stopped representing Trotter; (9) the substance of what occurred at Trotter and defendant's March 13, 2006, court hearings; (10) meeting with Trotter outside of court concerning the cases on which he represented her; (11) meeting with Trotter in court during status hearings; (12) the specific document that identified Trotter as the State's witness against defendant; or (13) filing any motions on Trotter's behalf during his representation of her in those two cases.

¶ 13 In December 2009, the trial court, reasoning that a per se conflict of interest did not exist because Wright did not represent Trotter at the time of defendant's trial, entered a written order that denied defendant's postconviction petition.

¶ 14 This appeal followed.

¶ 15 II. THE TRIAL COURT'S THIRD–STAGE DENIAL OF DEFENDANT'S PETITION FOR POSTCONVICTION RELIEF

¶ 16 A. Proceedings Under the Act

¶ 17 A defendant may proceed under the Act by alleging that “in the proceedings which resulted in his or her conviction[,] there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both” (725 ILCS 5/122–1(a)(1) (West 2008)). In noncapital cases, the Act establishes a three-stage process for adjudicating a postconviction petition (725 ILCS 5/122–1 through 122–8 (West 2008)). People v. Jones, 213 Ill.2d 498, 503, 290 Ill.Dec. 519, 821 N.E.2d 1093, 1096 (2004). At the first stage, “the trial court, without input from the State, examines the petition only to determine if [it alleges] a constitutional deprivation unrebutted by the record, rendering the petition neither frivolous nor patently without merit.” (Emphasis in original.) People v. Phyfiher, 361 Ill.App.3d 881, 883, 297 Ill.Dec. 694, 838 N.E.2d 181, 184 (2005). “Section 122–2.1 [of the Act] directs that if the defendant is sentenced to imprisonment (rather than death) and the circuit court determines that the petition is frivolous or patently without merit, it shall be dismissed in a written order. 725 ILCS 5/122–2.1(a)(2) (West 2004).” People v. Torres, 228 Ill.2d 382, 394, 320 Ill.Dec. 874, 888 N.E.2d 91, 99–100 (2008).

¶ 18 If a petition is not dismissed at the first stage, it proceeds to the second stage, at which point section 122–4 of the Act provides for the appointment of counsel for an indigent defendant (725 ILCS 5/122–4 (West 2008)). At the second stage, (1) the State has the option to either answer or move to dismiss the petition (...