People v. Hernandez

• Decision Date: 18 September 2008
• Docket Number: No. 105368.,105368.
• Citation: 231 Ill.2d 134,896 N.E.2d 297
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Juan C. HERNANDEZ, Appellant.
• Court: Illinois Supreme Court

896 N.E.2d 297

231 Ill.2d 134

The PEOPLE of the State of Illinois, Appellee, v. Juan C. HERNANDEZ, Appellant.

No. 105368.

Supreme Court of Illinois.

September 18, 2008.

Allan A. Ackerman, Patrick A. Tuite, Chicago, for appellant.

Lisa Madigan, Attorney General, Springfield, Richard A. Devine, State's Attorney, Chicago (James E. Fitzgerald, Alan J. Spellberg, John E. Nowak, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice BURKE delivered the judgment of the court, with opinion:

In this case, we must determine whether a criminal defense attorney labors under a per se conflict of interest when he or she also represents the alleged victim of defendant's offense, but where the attorney has had no contact with the alleged victim for several years. The circuit court of Cook County and the appellate court found that no per se conflict existed. Nos. 1-04-2776, 1-06-2052 cons. (unpublished order under Supreme Court Rule 23). For the reasons that follow, we reverse the decisions of the courts below, reverse defendant's conviction, and remand this matter for proceedings consistent with this decision.

BACKGROUND

In 1992, defendant, Juan Hernandez, was arrested on federal and state drug charges. The narcotics in defendant's possession were confiscated. Defendant served 30 months at Oxford Federal Prison Camp and 3 months at Shawnee Correctional Center. While in custody, defendant met Richard Martinez and Ricardo Diaz. Following their release from prison, the three remained in contact.

In August of 1999, defendant was approached by Jaime Cepeda. Cepeda claimed defendant owed his "superior" $50,000 for the narcotics confiscated in 1992, and that he was sent to collect on the debt. In August, Cepeda went to defendant's home on at least four occasions and threatened to kill defendant and his family if defendant did not pay the money owed. Cepeda also went to defendant's workplace and threatened him.

In September of 1999, Cepeda kidnapped defendant and held him for three weeks. During that time, defendant was locked in the basement at Cepeda's house, handcuffed, and repeatedly beaten. On September 28, 1999, Cepeda, armed with a gun, took defendant back to defendant's home and told defendant's wife this would be the last time she would see defendant if he did not come up with the money. Cepeda again threatened to kill defendant's family.

Cepeda and his two associates took defendant back to Cepeda's house. When they arrived at Cepeda's home, police officers were waiting outside. The police had responded to a report of a bound and gagged man standing in the street in front of Cepeda's home. Seeing the police, the four men exited Cepeda's car and ran toward Cepeda's home. Cepeda ran toward the back of the home. As he did so, he discarded a bag containing two loaded handguns. The bag was recovered by the police and Cepeda was arrested for unlawful use of a weapon.

During the same time frame, defendant and Diaz came under investigation by the Drug Enforcement Administration (DEA) and Illinois State Police for drug trafficking. Martinez had agreed to become a confidential informant and was instructed to contact both defendant and Diaz to purchase cocaine. Martinez initially made contact with Diaz, who told him defendant wanted to deal directly with Martinez. Defendant contacted Martinez on February 10, 2000.

Because of defendant's encounters with Cepeda, defendant told Martinez he wanted Cepeda killed. In furtherance of this plot, defendant met with Martinez and his "partner," an undercover special agent with the Illinois State Police, on February 14. At that time, defendant described Cepeda to them, showed them the location of Cepeda's house, and described Cepeda's car. Defendant agreed to reduce the price on their future drug purchases by $1,000 if Martinez killed Cepeda. It was arranged that defendant would sell cocaine to Martinez on February 23. Defendant and Martinez spoke several times between February 14 and February 23 about the sale, but due to a disagreement about certain details of the purchase, the February 23 transaction never took place.

The investigation of defendant was placed on hold until May 1, 2000, when defendant again contacted Martinez about selling drugs. At that time and in subsequent conversations, defendant renewed the discussion regarding the "hit" on Cepeda. Based on the conversations between Martinez and defendant after May 1, the State's Attorney obtained an order for a confidential overhear.

On May 11, defendant was captured on tape hiring Martinez to kill Cepeda in exchange for a reduced price on the purchase of cocaine. Defendant was arrested that same day. On May 31, defendant was indicted and charged with, inter alia, two counts of solicitation of murder for hire.

In 2003, defendant retained John DeLeon to represent him on the above charges. Unbeknownst to defendant, DeLeon had previously been retained by Cepeda to represent him in connection with the September 1999 unlawful use of a weapon charge. DeLeon continued to represent Cepeda through January 16, 2001, when a bond forfeiture warrant was issued against Cepeda for his failure to appear in court. Apparently, Cepeda had fled the country prior to January 16, 2001, and has not returned. Although DeLeon has had no contact with Cepeda since before January 16, 2001, he continues to be the attorney of record for Cepeda.

In defendant's case, Cepeda's name appeared on the State's list as a potential witness. DeLeon and Marvin Bloom, DeLeon's associate who was also involved in defendant's representation, as well as the assistant State's Attorney prosecuting defendant's case, were all aware that DeLeon represented both defendant and Cepeda. However, neither defendant nor the circuit court was advised of the dual representation.

Following a bench trial, defendant was found guilty of solicitation to commit murder for hire. While defendant's direct appeal was pending, he filed a postconviction petition, alleging, inter alia, that DeLeon's dual representation, of which defendant was previously unaware, constituted a per se conflict of interest that denied him effective assistance of counsel. Attached to defendant's petition was DeLeon's affidavit, in which DeLeon admitted representing Cepeda. DeLeon averred: "I still considered myself to be his [Cepeda's] attorney, for if he was arrested on that warrant [bond forfeiture], as my appearance was still on file, I would still be his attorney." DeLeon further averred that, to his knowledge, neither he nor the prosecutor brought his "prior and active representation of Jaime Cepeda during my representation of Juan Hernandez" to the attention of the court or defendant.

The circuit court conducted an evidentiary hearing on defendant's postconviction petition. Marvin Bloom testified that, at some point during defendant's case, he learned DeLeon also represented Cepeda. Bloom never told defendant about the dual representation and admitted he never considered whether it created a conflict.

John DeLeon testified that he represented Cepeda in two different cases. When Cepeda failed to appear in court in 2001 and the bond forfeiture warrant was issued, DeLeon attempted to locate Cepeda, but could not. DeLeon stated that Cepeda's case remained pending on the court's call via the bond forfeiture. When questioned on direct examination as to whether he still considered himself to be Cepeda's attorney as of the present time, DeLeon responded, "Yes. If he is apprehended, I will be representing him." DeLeon reiterated that he never told defendant he represented Cepeda, nor was he aware of anyone else doing so.

On cross-examination, DeLeon testified he had not spoken to, nor seen, Cepeda since before January 2001. DeLeon confirmed that, at some point during defendant's trial, he and the assistant State's Attorney discussed the fact he represented Cepeda. The assistant State's Attorney then inquired of DeLeon as follows:

"Q. And the reason you never told him [defendant]—at least what you told me—was because you didn't feel there was a conflict of interest; is that correct?

A. I didn't think it was important to the case at the time.

Q. And you felt that there was really—you didn't think that there was a conflict of interest?

A. Well, I—I don't want to make a legal determination on whether or not there was a conflict. All I can tell you is I didn't think there was a problem.

Q. No, my question to you, sir, is * * * you told me that you did not believe that there was any conflict of interest; isn't that correct?

A. That's correct.

Q. And that's why you didn't tell him; correct?

A. It just never came up in the conversation. I felt that my representation of Jaime Cepada [sic] was separate and apart; that whatever conversations that I had with Jaime were between me and Jaime. He was a client. I owed a loyalty to him, so I didn't reveal any conversations."

Upon further re-cross-examination, DeLeon stated that, while he was not presently going to court on Cepeda's behalf, he was still Cepeda's lawyer and was "active right now" on his behalf.

On additional redirect examination, DeLeon testified further concerning his belief that he was still Cepeda's attorney:

"Q. Mr. DeLeon, so it is clear, during any of that period of time including the time that you were defending Mr. Hernandez, if you got a call that Mr. Cepada [sic] had been arrested on that warrant [bond forfeiture], what did you consider would be your position with respect to Mr. Cepada [sic]?

A. That I was his lawyer.

Q. And would you have an obligation * * * to go to court for Mr. Cepada [sic] had he been arrested?

A. I am sure Judge Fox would have made sure I was there. And, of course, I would have been there.

Q. And at that time if he wished or—and if you wished, you could withdraw. But up until that point, you were still his lawyer and still responsible for his case.

A. Yes."

Following the evidentiary hearing, ...