People v. Carr

2020 IL App (1st) 171484

167 N.E.3d 224

445 Ill.Dec. 547

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

v.Heggie CARR, Defendant-Appellant.

No. 1-17-1484

Appellate Court of Illinois, First District, SIXTH DIVISION.

October 23, 2020

James E. Chadd, Patricia Mysza, and Deborah Nall, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and Noah Montague, Assistant State's Attorneys, of counsel), for the People.

JUSTICE CONNORS delivered the judgment of the court, with opinion.

¶ 1 Defendant, Heggie Carr, appeals the dismissal of his postconviction petition after a third-stage evidentiary hearing. On appeal, he contends that the circuit court should have granted his petition because his trial attorney labored under a per se conflict of interest where the victim in his case hired defendant's attorney to represent him and testified against defendant at trial. Finding that defendant did not waive the per se conflict that arose, we reverse and remand for a new trial.

¶ 2 I. BACKGROUND

¶ 3 The following background is drawn from the record and this court's order from defendant's direct appeal: People v. Carr , 2014 IL App (1st) 122128-U, 2014 WL 931099. Defendant was charged with aggravated domestic battery and aggravated battery, among other offenses, after an incident on July 21, 2011, in which defendant beat the victim, Robin Hall, in a hotel room located at 6250 North Lincoln Avenue in Chicago. Two private attorneys, William Knox and Marc Gottreich, each filed an appearance for defendant on August 19, 2011. Knox was granted leave to withdraw six days later. Gottreich represented defendant for the rest of the pretrial proceedings and at trial, though Nicholas O'Connor, an associate at Gottreich's firm, appeared for defendant on one pretrial date.

¶ 4 A. Trial

¶ 5 At the April 2012 trial, Hall testified that she and defendant had been together for the past five years. Hall was an escort and defendant was her pimp. Hall further described defendant as "my man, my best friend, and everything." Hall would give defendant the money she made from escorting. At the time of the incident, she was staying in a second-floor hotel room with Michael Dillon. Hall had a phone conversation with defendant that did not go well, and she hung up the phone on him. When Hall opened the door to leave, defendant entered and began searching the room. After defendant saw Dillon in the bathroom, defendant started beating Hall. Defendant hit her with his fist, knocked her teeth out, fractured her cheek bone, and hit her with something metal. Hall escaped by jumping out of the window, whereupon someone grabbed the back of her shirt. Hall landed on her hip and side, breaking her pelvic bone and wrist. Hall blacked out, but remembered defendant asking if she was dead and throwing Hall's phone at her. Hall was later taken to the hospital, where she was treated for her injuries. After the incident, defendant sent Hall a letter, stating that Hall "kn[e]w what to say" at trial, defendant missed her, and he was looking forward to returning home and celebrating their life together.

¶ 6 Michael Dillon also testified about the incident, stating that defendant had punched Hall and used objects to strike her.

¶ 7 After closing arguments, the court found defendant guilty of three counts of aggravated domestic battery and one count of aggravated battery. Defendant was sentenced as a Class X offender to concurrent 14-year prison terms on each count.

¶ 8 B. Direct Appeal

¶ 9 In his direct appeal, defendant raised claims relating to the sufficiency of the evidence and ineffective assistance of counsel, in that his counsel elicited certain harmful evidence. Defendant also contended that—pursuant to the one-act, one-crime doctrine—the trial court improperly convicted him of three separate aggravated domestic battery charges, in addition to one lesser charge of aggravated battery, for the commission of a single physical act. This court issued its decision on March 10, 2014, rejecting defendant's sufficiency of the evidence and ineffective assistance claims, but finding that the multiple convictions for aggravated domestic battery and the additional aggravated battery conviction were unwarranted under the one-act, one-crime doctrine. Id. Defendant's aggravated battery conviction and two of the aggravated domestic battery convictions were vacated. Id. ¶ 28. This court affirmed one conviction for aggravated domestic battery. Id.

¶ 10 C. Postconviction Proceedings

¶ 11 On July 10, 2014, defendant filed a postconviction petition, asserting in part that he was denied the right to effective assistance of counsel because his trial attorney, Gottreich, labored under a per se conflict of interest. Defendant stated that Hall—who was the complaining witness, the State's key witness, and the victim—hired and paid Gottreich to represent him. Further, Hall had owed a remaining balance. Defendant asserted that Gottreich never mentioned the conflict and defendant only learned of the conflict when his appellate counsel mailed him a copy of an attorney-client representation agreement.

¶ 12 Defendant attached several documents to his petition, including the aforementioned attorney-client representation agreement, a March 2013 letter to defendant from Gottreich, a March 2013 letter to defendant from the DePaul University College of Law legal clinic, and an affidavit from defendant's mother.

¶ 13 The attorney-client representation agreement stated in part:

"This agreement is entered into by and between the law firm of Gottreich & Grace (‘Attorneys’) and Robin Hall (‘Client’) on 8/16/11. The Attorneys agree to represent the Client in the pending criminal matter * * * for the sum of 3000 plus any investigational or court costs * * *.

* * *

The Attorneys and Client further agree that upon the signing of this Agreement, the Attorneys have been paid $1000 as an Advance Payment Retainer."

There were two signature lines. Hall appeared to have signed above the first line. It was unclear who signed above the second line, below which were typed the names Marc E. Gottreich and Timothy M. Grace.

¶ 14 Gottreich's March 2013 letter stated in part that "[a]s far as payments, Robin paid me $1,000 to get started and your mom paid the balance of $2000 prior to the trial for a total of $3,000 for your case. I received no other money."

¶ 15 The March 2013 letter from the DePaul University College of Law legal clinic included information about defendant's direct appeal and postconviction petition. The letter also referred to an invoice that had been provided by defendant's trial attorney and noted "Robin Hall" was the payor and "Marc Gottreich" was the payee. That invoice is not in the record.

¶ 16 Another attached document was an affidavit from defendant's mother, Martha Carr, who stated in part that she witnessed defense counsel give Hall advice about the case. Martha also stated that Gottreich worked out all of the payment agreements with Hall.

¶ 17 On October 17, 2014, the circuit court advanced defendant's petition to second-stage proceedings and appointed counsel. Defendant's postconviction counsel filed an Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) certificate, and the State filed a motion to dismiss the petition. After a hearing on the motion to dismiss, the court advanced the petition to a third-stage evidentiary hearing.

¶ 18 The evidentiary hearing was held on June 1, 2017. There, defendant testified that while he was in pretrial custody, a friend of the family named Tanesa hired an attorney with a last name of Knox to represent defendant. Gottreich also appeared on his case, and both attorneys appeared for him on the same date. On that date, defendant chose Gottreich to represent him based on Gottreich's proposed strategy. Knox withdrew. Gottreich told defendant he was hired "by the family," and defendant presumed that Tanesa had hired and paid him. After defendant was convicted, he learned that Gottreich had actually been hired by Hall. Gottreich did not tell defendant before or during the trial that Hall had hired him and never told defendant that Hall paid him any amount of money. After defendant was convicted, defendant's mother told him that Gottreich asked her to pay because he was not receiving the money from Hall. Defendant maintained that he did not direct anyone to contact or hire Gottreich on his behalf.

¶ 19 Gottreich also testified at the hearing, recalling that defendant's mother and Hall contacted Gottreich by phone. Someone came to his office with money, "[t]hey signed a contract," and Gottreich began representing defendant. He did not intend to represent anyone other than defendant. Gottreich stated that an associate in his firm, Nicholas O'Connor, signed the attorney-client representation agreement and Gottreich was not present when it was signed. Gottreich acknowledged that O'Connor "put the agreement between our law firm and Robin Hall," but the agreement "should have said Robin Hall on behalf of Heggie Carr or put Heggie Carr's name in." When the agreement was signed, Gottreich knew that Hall was the victim and witness. It was "not unusual for victims to hire us or pay us money on cases," especially in a situation that initially appeared to be "merely a misdemeanor domestic violence case." Initially, Gottreich spoke to Hall numerous times, but he did not indicate that he represented her. Hall stopped talking to Gottreich after a few months. Gottreich did not specifically recall talking to defendant about Hall's status as the victim who would testify, but was sure that he did. Gottreich did not see a conflict and did not bring the matter to the court's attention.

¶ 20 After closing arguments, the court issued an oral ruling that denied defendant's petition and stated as follows. Defendant was intelligent, and the relationship between a prostitute and her pimp "is a complicated and complex one." Defenda...