McCoy v. State, 21664

• Decision Date: 25 July 1996
• Docket Number: No. 21664,21664
• Citation: 129 Idaho 70,921 P.2d 1194
• Parties: Michael C. McCOY, Petitioner-Appellant, v. STATE of Idaho, Respondent. . Boise, April 1996 Term
• Court: Idaho Supreme Court

Page 1194

921 P.2d 1194

129 Idaho 70

Michael C. McCOY, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 21664.

Supreme Court of Idaho.

Boise, April 1996 Term.

July 25, 1996.

S. Criss James, Soda Springs, for appellant.

Alan G. Lance, Attorney General, Michael A. Henderson (argued), Deputy Attorney General, Boise, for respondent.

SILAK, Justice

This is an appeal from the district court's order denying appellant Michael C. McCoy's petition for post-conviction relief in which he alleges that he was denied his Sixth Amendment right to conflict-free counsel. We affirm.

I. FACTS AND PROCEDURAL BACKGROUND

Appellant Michael C. McCoy (McCoy) and his co-defendant, Danny Gillette (Gillette) were originally charged with one count of Grand Theft, one count of Kidnapping and one count of Robbery. These charges arose out of the abduction of a car salesman in Pocatello, Jason Rainey (Rainey), under the pretense that McCoy and Gillette wanted to test drive a car available for sale at the dealership where Rainey worked. After getting in the car, Gillette and/or McCoy pulled a gun or guns on Rainey and forced him to drive with them to the Malad area. Gillette and McCoy then robbed Rainey, tied him up with duct tape, left him in a rural part of Oneida County, and drove off with the stolen car. They were later arrested in Utah and extradited to Idaho.

John Souza (Souza) of the Bannock County public defender's office was appointed to represent McCoy, while Randall Schulthies (Schulthies), an attorney on contract with the public defender's office to handle conflict cases, was assigned to represent Gillette. Identical plea agreements were reached by both McCoy and Gillette whereby they agreed to plead guilty to the crime of robbery in exchange for a dismissal of the remaining charges. Presentence reports were ordered for both defendants.

Gillette's sentencing hearing was scheduled for Monday, July 1, 1991. At the time of sentencing, Gillette's attorney, Schulthies, was unavailable and requested that Souza appear with Gillette. Evidence at Gillette's sentencing hearing indicated that he had numerous prior felony convictions. Gillette was sentenced to a term of seven years determinate followed by an indeterminate term of life imprisonment.

McCoy's sentencing took place the following day, July 2, 1991. Souza continued to represent McCoy at the sentencing, although he had represented Gillette at his sentencing. The presentence report indicated that McCoy had continual and ongoing involvement in the criminal justice system, but had only one prior felony conviction. The prosecutor recommended a fixed sentence of 20 years followed by an indeterminate life sentence. The district court sentenced McCoy to a determinate term of eight years and an indeterminate term of life imprisonment.

McCoy and Gillette filed I.C.R. 35 motions for reduction of their sentences which the district court denied. Souza represented both McCoy and Gillette at these hearings. McCoy and Gillette then appealed from the imposition of their sentences and from the denial of their Rule 35 motions. Souza filed appellate briefs with the Supreme Court on behalf of both McCoy and Gillette. The Court of Appeals affirmed the district court's exercise of discretion in sentencing McCoy and Gillette and affirmed the denial of their Rule 35 requests for leniency. See State v. McCoy, 121 Idaho 631, 826 P.2d 1343 (Ct.App.1992) and State v. Gillette, 121 Idaho 629, 826 P.2d 1341 (Ct.App.1992).

Thereafter, McCoy filed a petition for post-conviction relief. McCoy alleged, inter alia, that he was denied his state and federal constitutional right to independent counsel because his attorney, Souza, also represented Gillette at his sentencing hearing. ¹ McCoy claimed that Souza's representation of Gillette was a clear conflict of interest in that there were claims that McCoy was more culpable than Gillette. After an evidentiary hearing, at which McCoy testified, the district court issued its findings of fact, conclusions of law and order denying McCoy's petition.

Subsequently, a public reprimand was issued by the Idaho State Bar against Souza which appeared in the April 1995 issue of The Advocate. The reprimand stated that Souza's representation of McCoy and Gillette was a conflict of interest.

McCoy appeals from the district court's denial of his petition for post-conviction relief.

II. ISSUES ON APPEAL

1. Whether McCoy was denied his Sixth Amendment right to conflict-free counsel because his attorney represented both him and Gillette at sentencing, at the Rule 35 hearing and by filing Idaho Supreme Court briefs on behalf of both McCoy and Gillette.

2. Whether the district court failed in its duty to McCoy by not taking an active role in protecting McCoy's constitutional right to counsel by not inquiring into the apparent conflict of interest which existed because McCoy's counsel represented both McCoy and his co-defendant, Gillette.

3. Whether the district court erred by applying the incorrect standard for the burden of proof required for an appeal based on ineffective assistance of counsel.

III. STANDARD OF REVIEW

A petitioner for post-conviction relief has the burden of proving the allegations Allegations of ineffective assistance of counsel present mixed questions of law and fact. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984); Tugmon v. State, 127 Idaho at 18, 896 P.2d at 344. Joint representation of defendants by a single attorney does not constitute per se ineffective assistance of counsel. Giles v. State, 125 Idaho 921, 923, 877 P.2d 365, 367 (1994), cert. denied, 513 U.S. 1130, 115 S.Ct. 942, 130 L.Ed.2d 886 (1995). In this case, in order to prove a violation of his Sixth Amendment right to counsel, i.e., ineffective assistance of counsel, McCoy bore the burden of demonstrating by a preponderance of the evidence that the facts and circumstances of his counsel's joint representation at sentencing of McCoy and Gillette constituted an actual conflict of interest. Id.

upon which his claim is based by a preponderance of the evidence. I.C.R. 57(c); State v. Pratt, 125 Idaho 546, 567, 873 P.2d 800, 821 (1993); Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990). The district court's findings of fact in a post-conviction proceeding will not be disturbed on appeal unless clearly erroneous. See, e.g., Tugmon v. State, 127 Idaho 16, 18, 896 P.2d 342, 344 (Ct.App.1995). A denial of post-conviction relief will not be disturbed on appeal where there is substantial and competent evidence supporting the denial. State v. Pizzuto, 119 Idaho 742, 778, 810 P.2d 680, 716 (1991).

This standard was first articulated by the United States Supreme Court in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). In Cuyler, the Court stated that its previous decision of Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), reaffirmed that multiple representation does not violate the Sixth Amendment unless it gives rise to a conflict of interest. Cuyler, 446 U.S. at 348, 100 S.Ct. at 1718. The Court then held that in order to demonstrate a violation of a defendant's Sixth Amendment rights, the defendant must establish "that an actual conflict of interest adversely affected the lawyer's performance." Id. The Court held that the possibility of conflict is insufficient to impugn a criminal conviction, and that until a defendant shows that counsel actively represented conflicting interests, the defendant has not established the constitutional predicate for a claim of ineffective assistance. Id.

IV. ANALYSIS

A. The District Court Correctly Found that McCoy Was Not Denied His Sixth Amendment Right To Conflict-Free Counsel Because His Attorney Represented Both McCoy And Gillette At Sentencing.

Preliminarily, we note that in his issues on appeal, McCoy claims that he was denied his Sixth Amendment right to conflict-free counsel not only because Souza represented both Gillette and him at sentencing, but also because Souza represented both of them at their Rule 35 hearings and filed appellate briefs on behalf of both. The State argues that because McCoy only raised the issue of a conflict at sentencing in his petition for post-conviction relief, the issues of whether a conflict existed at the Rule 35 hearings and by Souza filing appellate briefs on behalf of both are not properly before the Court. We agree.

In his petition for post-conviction relief, McCoy alleges that he was denied his "State and Federal constitutional right to independent counsel because [his] attorney, John Souza, also represented the co-defendant, Danny Gillette, at his sentencing hearing. Mr. Souza's representation of [Gillette] was a clear conflict of interest in that there were claims that [McCoy] was more culpable than [Gillette]." Nowhere in his petition did McCoy allege that he was denied conflict-free counsel with respect to his Rule 35 motion or his appeal from the district court's denial of the motion. Rather, these claims are being raised for the first time on appeal. It is clear from the record that there is no reason This Court has repeatedly held that issues which are raised for the first time on appeal will not be considered. State v. Russell, 122 Idaho 488, 490, 835 P.2d 1299, 1301 (1992); State v. Lavy, 121 Idaho 842, 844, 828 P.2d 871, 873 (1992). Because these claims were not raised before the district court in the civil post-conviction proceedings, we hold that they are not properly before the Court and will not be considered. Thus, we will only address whether McCoy was denied his Sixth Amendment right to conflict-free counsel with respect to Souza representing both McCoy and Gillette at sentencing.

McCoy could not have included these issues in his petition.

The basis for McCoy's petition for post-conviction relief and the thrust of his argument on appeal is that a conflict existed in the joint...