Cole v. White, 18480

• Decision Date: 21 December 1988
• Docket Number: No. 18480,18480
• Citation: 180 W.Va. 393,376 S.E.2d 599
• Court: West Virginia Supreme Court
• Parties: Jan Erin COLE, Petitioner, v. C.M. WHITE, Warden, Huttonsville Correctional Center, Respondent.

Page 599

376 S.E.2d 599

180 W.Va. 393

Jan Erin COLE, Petitioner, v. C.M. WHITE, Warden, Huttonsville Correctional Center, Respondent.

No. 18480.

Supreme Court of Appeals of West Virginia.

Dec. 21, 1988.

Syllabus by the Court

1. The right of a criminal defendant to assistance of counsel includes the right to effective assistance of counsel.

2. Where a constitutional right to counsel exists under W.Va. Const. art. III, § 14, there is a correlative right to representation that is free from conflicts of interest.

3. When constitutional claims of ineffective assistance of counsel, due to a conflict of interest are raised, either on direct appeal of a criminal conviction or in a habeas corpus proceeding founded on similar allegations, we apply the standard of review embodied in Syllabus Point 3 of State ex rel. Postelwaite v. Bechtold, 158 W.Va. 479, 212 S.E.2d 69 (1975), cert. denied, 424 U.S. 909, 96 S.Ct. 1103, 47 L.Ed.2d 312 (1976):

"The joint representation by counsel of two or more accused, jointly indicted and tried is not improper per se; and, one who claims ineffective assistance of counsel by reason of conflict of interest in the joint representation must demonstrate that the conflict is actual and not merely theoretical or speculative."

4. In a case of joint representation, once an actual conflict is found which affects the adequacy of representation, ineffective assistance of counsel is deemed to occur and the defendant need not demonstrate prejudice.

5. Rule 44(c) of the West Virginia Rules of Criminal Procedure requires trial courts to "promptly inquire with respect to such joint representation and ... personally advise each defendant of his right to effective assistance of counsel, including separate representation."

6. The standard for taking some affirmative action under Rule 44(c) of the West Virginia Rules of Criminal Procedure is the trial court's belief that a conflict of interest is likely to arise. This is a lower standard than the Sixth Amendment's requirement of demonstrating an actual prejudice.

7. " 'A habeas corpus proceeding is not a substitute for a writ of error in that ordinary trial error not involving constitutional violations will not be reviewed.' Point 4, Syllabus, State ex rel. McMannis v. Mohn, W.Va. 254 S.E.2d 805 (1979)." Syllabus Point 2, Edwards v. Leverette, 163 W.Va. 571, 258 S.E.2d 436 (1979).

8. The violation of Rule 44(c) of the West Virginia Rules of Criminal Procedure and its standard of a likely conflict is not an error which can be reached in a habeas corpus proceeding.

9. A constitutional claim of ineffective assistance of counsel arising from joint representation of codefendants may be reached in a habeas corpus proceeding if an actual conflict is shown.

Lee H. Adler, Beckley, for petitioner.

Charles G. Brown, III, Atty. Gen., for respondent.

MILLER, Justice:

In this original proceeding in habeas corpus, the relator, Jan Erin Cole, asserts that his right to the effective assistance of counsel was violated when trial counsel jointly represented him and his codefendant father. The relator and his father, Emory Cole, were indicted in January, 1984, by a Raleigh County grand jury for the crime of malicious assault.

The victim, Phyllis Cox, testified that on August 3, 1983, the relator beat her with a stick-like object and threatened future beatings if she testified as a witness in a pending case against his cousin, a Mr. Lindy Given. She further testified that Emory Cole sat in the relator's automobile and "watched" what occurred.

The relator and Emory Cole were jointly tried in May, 1985, found guilty, and sentenced to not less than two nor more than ten years in the state penitentiary. Final sentence was imposed on February 25, 1987. The issues raised in this habeas corpus petition were not raised on appeal. ¹

When the relator was arrested, trial counsel was appointed to represent him. Subsequently, Emory Cole retained the same trial counsel, who represented both the relator and his father at trial and through the initial appeal.

The right of a criminal defendant to assistance of counsel includes the right to effective assistance of counsel. W.Va. Const. art. III, § 14; U.S.C.A. Const. amend. VI; See, e.g., Marano v. Holland, 179 W.Va. 156, 366 S.E.2d 117 (1988); State v. Reedy, 177 W.Va. 406, 352 S.E.2d 158 (1986); State ex rel. Favors v. Tucker, 143 W.Va. 130, 140, 100 S.E.2d 411, 416 (1957), cert. denied, 357 U.S. 908, 78 S.Ct. 1153, 2 L.Ed.2d 1158 (1958). Although our cases have recognized this point, we now explicitly state, quoting Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220, 230 (1981), that "where a constitutional right to counsel exists, [under W.Va. Const. art. III, § 14] ... there is a correlative right to representation that is free from conflicts of interest." ²

When constitutional claims of ineffective assistance of counsel due to a conflict of interest are raised, either on direct appeal of a criminal conviction or in a habeas corpus proceeding founded on similar allegations, we apply the standard of review embodied in Syllabus Point 3 of State ex rel. Postelwaite v. Bechtold, 158 W.Va. 479, 491, 212 S.E.2d 69 (1975), cert. denied, 424 U.S. 909, 96 S.Ct. 1103, 47 L.Ed.2d 312 (1976):

"The joint representation by counsel of two or more accused, jointly indicted and tried is not improper per se; and, one who claims ineffective assistance of counsel by reason of conflict of interest in the joint representation must demonstrate that the conflict is actual and not merely theoretical or speculative."

See also Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); State v. Livingston, 179 W.Va. 206, 366 S.E.2d 654 (1988); State v. Reedy, supra.

Furthermore, it is clear that in a case of joint representation, once an actual conflict is found which affects the adequacy of representation, ineffective assistance of counsel is deemed to occur and the defendant need not demonstrate prejudice. See Cuyler v. Sullivan, 446 U.S. at 349-50, 100 S.Ct. at 1719, 64 L.Ed.2d at 347; State v. Reedy, 177 W.Va. at 411, 352 S.E.2d at 163.

The State's chief argument is that the defendant waived his right to claim a conflict in representation. This is supported not by anything in the trial record, but by a post-trial ex parte affidavit of defense counsel. The affidavit is conclusory as to the possible nature of the conflict, the advice given to the defendants, and their specific response. ³ We spoke to the necessity of counsel's disclosure of potential conflicts in order for the defendant to make an informed waiver in Reedy, 177 W.Va. at 411, 352 S.E.2d at 163:

"Disclosure of a potential conflict is mandated in order to give the defendant an opportunity to decide whether to retain other counsel or demand different court appointed counsel.... If disclosure is not made, the defendant is denied the opportunity to make an informed and intelligent decision concerning his defense."

In Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988), the Court made it clear that a trial court may refuse to allow an express waiver by codefendants of counsel's potential conflicting interest. There the defendant had been informed of the potential conflicts and expressly agreed to waive them and keep the retained attorney. The trial court refused to permit the waiver. The Supreme Court affirmed, stating that the constitutional right to select counsel must defer to "the institutional interest in the rendition of just verdicts in criminal cases [that] may be jeopardized by unregulated multiple representation." 486 U.S. at 161, 108 S.Ct. at 1698, 100 L.Ed.2d at 149.

If an express waiver cannot automatically cure a conflict of representation under Wheat, it is difficult to see how we can infer that an implied waiver exists in this case sufficient to cure any conflict of representation. This is particularly true where there is no specific disclosure of potential conflicts. We recognized in both Reedy and Livingston ⁴ that it was possible for a defendant to waive potential conflicts arising by his counsel representing codefendants. ⁵ However, in both of these cases, we refused to find a waiver. It should be noted that both cases were decided before Wheat and are subject to Wheat 's constraints.

Of further concern is the lack of compliance with Rule 44(c) of the West Virginia Rules of Criminal Procedure, which requires trial courts to "promptly inquire with respect to such joint representation and ... personally advise each defendant of his right to effective assistance of counsel, including separate representation." ⁶ Our Rule 44(c) is the same as Rule 44(c) of the Federal Rules of Criminal Procedure. In 8B J. Moore, Moore's Federal Practice § 44.08 at 73, this statement is made with regard to the purpose of the rule and a summary of the rather lengthy commentary made by the Advisory Committee:

"Rule 44(c) requires that whenever codefendants represented by the same attorney or law firm, whether retained or appointed, the trial court must inform each defendant of his right to the effective assistance of counsel including the right to separate representation. Furthermore, the rule requires that unless there is 'good cause to believe no conflict of interest is likely to arise' the court must act to protect each defendant's right to counsel. The rule does not specify what actions may be taken, but presumably may include disqualification of counsel, appointment of separate counsel, or requiring the defendants to execute written waivers of the right to counsel." (Footnotes omitted).

We observe that Rule 44(c) is forcefully written in order to protect the constitutional interest involved: the right to effective assistance of counsel which, as we have earlier noted, includes the right to have counsel that is free of any conflicting interest. It is obvious that one of the practical purposes of the rule...