1-99-1761

JUSTICE REID delivered the opinion of the court:

This is an interlocutory matter before this court pursuant to IllinoisSupreme Court Rule 306(a)(7) (166 Ill. 2d R. 306(a)(7)). Following the grantingby the trial court of a motion to disqualify defense counsel, defendantpetitioned this court for leave to appeal. This court dismissed the petition.Defendant subsequently filed a petition for leave to appeal to the IllinoisSupreme Court. Pursuant to its supervisory power, the Illinois Supreme Courtdenied the petition for leave to appeal and remanded the case back to this courtwith directions to hear the appeal.

Alvaro Ortega (Ortega) and Eugenio Natal (Natal) were arrested for thedelivery of a controlled substance, namely 999.38 grams of cocaine, in violationof section 401(a)(2)(D) of the Illinois Controlled Substances Act (720 ILCS570/401(a)(2)(D) (West 1992)). The delivery took place on August 1, 1996, withthe arrest occurring the following day. Though Robert Novelle, Sr., hadpreviously appeared on the defendant's behalf in the pre-arraignment stages ofthe proceedings, he filed a formal appearance in October 1996.

Prior to trial, the People filed a motion to disqualify Robert Novelle on thegrounds that Donald Novelle, his brother and law partner, had represented JuanMontez in four different criminal matters. Juan Montez, when Robert Novelleacted as his lawyer, used the aliases Valentine Mejia and Juan Soliz. It ispossible that Montez was the alias and Mejia is the real name. Montez wasworking for the Metropolitan Enforcement Group (MEG), either for compensation orto work off pending criminal cases. The People's motion alleged that therepresentation of Montez created a per se conflict of interest.

Donald Novelle testified he learned Montez was a witness in a grand juryproceeding in which Ortega was a target. The work Montez was doing for the MEGinvolved organizing the cocaine purchase from which Ortega now appeals. DonaldNovelle allegedly heard that Eugenio Natal was involved in this cocaine purchasebut would not be charged. Donald Novelle claims he learned of the agreementbetween Montez and the MEG after the transaction. He also testified torepresenting Montez in his attempt to enforce the agreement whereby he workedfor the MEG. The People deny that such an agreement exists. When Montez wascalled to testify before a grand jury, he invoked his fifth amendment right notto testify.

On September 6, 1996, in an informal conference with the trial court toresolve any conflicts, it was recommended that Donald Novelle have anotherlawyer represent Montez. This was suggested to eliminate any appearance ofimpropriety. Donald Novelle responded that, based on the purported conflictswaivers before the trial court, he could freely discuss both the cases involvingMontez and the facts of any alleged conflict with members of the firm, includingRobert Novelle. In subsequent proceedings, although Donald Novelle continued torepresent Montez in pending criminal matters, Greg Ginex appeared on his behalf.On September 12, 1996, while being represented by Ginex, Montez testified beforethe grand jury. Montez ultimately did receive convictions in the cases involvinghim. His sentence was 30 months' probation. At the time of the conferencebetween Novelle and the trial court in this case, Montez still owed Novelle'sfirm for legal services.

On April 20, 1999, the trial court asked Ortega and Natal if they understoodthe nature of the conflict of interest. Each defendant responded that he did.The trial court also questioned each defendant regarding his age, level ofeducation and experience in the legal system. Both defendants indicated thatthey waived potential conflicts so that Robert Novelle could continue torepresent them. Robert Novelle told the court that he had informed thedefendants of every relevant fact of the potential conflict of interest. Despitethe purported waivers, the trial court found the existence of a per seconflict of interest. The trial court also found that no waiver could satisfythe trial court's duty to ensure that a defendant received the undivided loyaltyof his counsel.

The trial court's April 20, 1999, order was entered orally. The proceedingswere then stayed pending appeal. On April 26, 1999, the trial court entered awritten order on the substance of the April 20, 1999, oral order. On May 9,1999, the petitioner filed a petition for leave to appeal under Illinois SupremeCourt Rule 306(a)(7). The People filed an answer to the petition. This courtdismissed the petition. Defendant next filed a petition for leave to appeal tothe Illinois Supreme Court. That petition to the supreme court was denied. Intheir denial, the supreme court remanded the case back to this court withdirections to hear the appeal.

Ortega argues that the trial court erred in disqualifying defense counselbecause the representation of Montez was neither contemporaneous with thecurrent representation nor harmful to either client's interests. Ortega alsoargues that there was a knowing waiver of any conflict of interest such that,although the constitutional right to counsel of his own choosing and the sixthamendment right to the undivided loyalty of counsel are in competition, theright to counsel of his own choosing must prevail. Specifically, Ortega arguesthat the representation of Montez was over for two years by the time Ortega wasarrested. He also maintains that the prior representation ended and did notresume at any point. Even if it did, Ortega claims that Montez's potentialtestimony would potentially exonerate Natal and not him. As a result, Ortegaargues Montez's potential testimony was not truly opposed to his interests.Ortega also points out that, since the trial court found Montez's agreementunenforceable, any potential benefit Montez might have received at the cost ofOrtega's interests was essentially mooted.

The People respond that the trial court was correct in disqualifying defensecounsel in light of the per se conflict of interest which existsin this case. The People argue that, where an actual or possible conflict ofprofessional interest is found to exist, prejudice is presumed. The Peopleemphasize that, although Robert Novelle's firm no longer represents Montez,Donald Novelle did represent Montez during hearings that directly related to thefacts and circumstances of the case sub judice. It argues thetrial court was properly concerned with the appearance of impropriety, shouldthe jury become aware of the prior representation of the People's witness inmatters directly related to this case. The trial court also expressed concernthat Robert Novelle's cross-examination might be subliminally restricted orlimited, especially in light of any information he gained by way of theattorney-client privilege and Montez's belief that Natal was not supposed to bearrested or prosecuted for the crime.

Appellate review of a purely legal question is de novo. Peoplev. Hall, 198 Ill. 2d 173 (2001); People v. Dameron, 196 Ill. 2d 156,162 (2001); People v. Krause, 273 Ill. App. 3d 59, 62 (1995). A questionof law arises when neither the credibility of the witnesses nor the facts are atissue. People v. Walker, 308 Ill. App. 3d 435, 438 (1999), citing Peoplev. Oaks, 169 Ill. 2d 409, 447-48 (1996).

Ortega claims that defense trial counsel should not have been disqualifiedbecause, although there was the potential for a conflict of interest, harm tothe defendants' position was nullified by the knowing waivers made in this case."The right to the effective assistance of counsel is a fundamental rightand entitles an accused to the undivided loyalty of his counsel." Peoplev. Lawson, 163 Ill. 2d 187, 208-09 (1994); Ill. Const. 1970, art. I,