People v. Ragusa

• Decision Date: 03 September 2009
• Docket Number: No. 06CA1110.,06CA1110.
• Citation: 220 P.3d 1002
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Patricia Jagielski RAGUSA, Defendant-Appellant.
• Court: Colorado Court of Appeals

220 P.3d 1002

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Patricia Jagielski RAGUSA, Defendant-Appellant.

No. 06CA1110.

Colorado Court of Appeals, Div. V.

September 3, 2009.

Rehearing Denied November 5, 2009.

John W. Suthers, Attorney General, Rebecca A. Adams, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Shann Jeffery, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge RICHMAN.

Defendant, Patricia Jagielski Ragusa, directly appeals the judgments of conviction and sentences entered on jury verdicts finding her guilty of theft, attempted theft, computer crime, and attempted computer crime. We reverse the judgments, vacate the sentences and remand the case for further proceedings.

I. Facts and Procedural History

The prosecution charged defendant with fifty-one counts of theft and attempted theft in violation of section 18-4-401(1), (2)(c), and (2)(d), C.R.S.2008, and fifty-one counts of computer crime and attempted computer crime in violation of section 18-5.5-102(1)(b), C.R.S.2008, for stealing and attempting to steal approximately $1.2 million from her employer via wire transfers she made by computer.

A. In Camera Proceedings

Defendant's contentions on appeal are based on statements her privately-retained attorneys made, in her absence, to the trial court and the prosecutors during two in camera proceedings.

1. First In Camera Proceeding

Before jury selection and in defendant's absence, the trial court held an in camera proceeding on the record, initiated at the request of defendant's attorneys, with defendant's attorneys and the prosecution. During this proceeding, defendant's attorneys discussed the district attorney's plea bargain offers to defendant. They revealed discussions in which they had "advised [their] client to take [the offers] unconditionally," and explained that they had "met with [defendant] repeatedly and were very adamant that [they] felt she should take [the district attorney's plea bargain]" to achieve "a [sentence] range of between four to twelve [years]."

Defendant's attorneys also made the following statements: (1) "[Defendant] led [us] — and we advised the prosecution — to believe that she was going to take the deal," (2) "[W]e think that it's folly for [defendant] to not have taken the deal," (3) "[H]er decision [not to accept the deal] is flat out wrong," (4) "[H]er choice is just a very, very poor one," and (5) "[W]e just feel it appropriate that we make a record." They also stated that they had advised defendant "in full and on multiple occasions," and that they had "steadfastly advised [their] client to accept the plea disposition." In response to defendant's attorneys' statements, the trial court found that defendant had "been advised on more than one occasion about [her potential sentence]" and that she had chosen to "go forward to trial."

Defendant's attorneys added, "[W]e have advised her that we will carry on with dignity," but "We will not act like we hate [the prosecution]." Further, they stated, "While we do buy into her pain, it doesn't mean that we're not going to be officers of the court and gentlemen." Finally, defendant's attorneys concluded by stating, "And we will not advise [defendant] of this [discussion] should she ask us what this was about. We don't think it was appropriate [sic]. It would only throw a monkey wrench thinking that we're against her."

2. Second In Camera Proceeding

Following a recess during the prosecution's case-in-chief, the court held another in camera proceeding, again in defendant's absence, with defendant's attorneys and the prosecution. Defendant's attorneys revealed that during the recess they were subjected to "perhaps the most vicious attack [they had] ever had to get from a client," quoting her telling them that they "don't give a s____, don't give a f____, and [are] putting on a patsy defense."

Defendant's attorneys also stated that they "need[ed] to put it on the record, because . . . [defendant] seems to be trying to make [them] a target." They stated further, "[Defendant] is expressing that she may not want us continuing to represent her," and "She said that we would not be able to work together if this was the way that it's going to continue with our defense." The court inquired whether defendant's attorneys were referring to this case or some case in the future, and they replied that they "[thought] she [was] referring to this case." The court asked whether defendant made "any more specific statements . . . other than she was unhappy." Defendant's attorneys stated that the only other statements defendant made concerned particulars on the cross-examination of a prosecution witness.

Finally, at this same in camera proceeding, defendant's attorneys stated, "[We] are certainly not going to quit. We're not going to let her fire us, if that ever were to come." They also said, "But we just feel as officers of the Court . . . we're very concerned that we're being set up." Without further inquiry, the court ended the in camera proceeding, and the trial resumed.

B. Conviction and Grounds for Appeal

The jury found defendant guilty on all charges. Defendant did not move for new counsel during her trial, nor did she make a post-trial motion for relief from the conviction. However, she represents to this court, without dispute from the prosecution, that she only became aware of the substance of the in camera proceedings after her conviction, when she reviewed the record in connection with her appeal. She requests reversal of her conviction and sentence on direct appeal due to violations of her Sixth Amendment rights to (1) have conflict-free counsel, (2) be present at trial, and (3) have counsel of her choice.

II. Conflict-Free Counsel

Defendant contends that her constitutional right to conflict-free counsel was violated when her trial attorneys undermined the attorney-client relationship by disclosing privileged communications and concealing the disclosure from her. She also argues that her attorneys labored under competing interests and loyalties because they wanted to keep the $100,000 that she paid them to litigate the trial while protecting their professional reputation and standing with the court and the district attorney's office. We agree that defendant's right to conflict-free counsel was violated.

A defendant has a right to conflict-free counsel. People v. Harlan, 54 P.3d 871, 878 (Colo.2002). Counsel becomes conflicted when his or her "ability to champion the cause of the client becomes substantially impaired." Rodriguez v. Dist. Court, 719 P.2d 699, 704 (Colo.1986); see also People v. Edebohls, 944 P.2d 552, 556 (Colo.App.1996) (conflict exists when attorney's ability to represent client is materially limited by attorney's own interests to avoid prosecutor taking "`umbrage at a vigorous defense' of defendant" (quoting People v. Castro, 657 P.2d 932, 945 (Colo.1983))).

An actual conflict of interest is one that is real and substantial, whereas a potential conflict is one that is possible or nascent, but in all probability will arise. Harlan, 54 P.3d at 878. "In order to demonstrate a violation of his [or her] Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his [or her] lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980). However, "a defendant who shows that a conflict of interest actually affected the adequacy of his [or her] representation need not demonstrate prejudice in order to obtain relief." Id. at 349-50, 100 S.Ct. at 1719; see also People v. Miera, 183 P.3d 672, 677 (Colo.App.2008) (concluding that Cuyler provides the appropriate standard to analyze an ineffective assistance of counsel claim based on a conflict of interest); People v. Kelling, 151 P.3d 650, 657 (Colo.App.2006) ("Where, as here, the trial court neglects to inquire into a potential conflict, a defendant, to obtain reversal, must show that counsel was subject to an actual conflict of interest that adversely affected counsel's performance on behalf of the defendant.").

Defendant argues that her attorneys' personal and financial interests presented an actual conflict with their duties of loyalty, zealous advocacy, and confidentiality. We agree that the actual conflict of interest between defendant and her counsel adversely affected her attorneys' performance because, as explained below, it resulted in her own counsel contributing to the deprivation of her constitutional rights. The cumulative effect of these attorneys' willingness to reveal matters to the court and prosecutors, while keeping the same matters secret from their client, was that defendant was denied the rights to meaningfully exercise her choice of counsel, be present at all critical stages of the proceedings, and make an intelligent and informed choice of whether to continue with counsel when a conflict appeared, as well as her entitlement to zealous and loyal advocacy.

A. Breach of Attorney-Client Privilege

The attorney-client privilege protects communications "by or to the client in the course of gaining counsel, advice, or direction with respect to the client's rights or obligations" under circumstances giving rise to a reasonable expectation that the statements will be treated as confidential. Gordon v. Boyles, 9 P.3d 1106, 1123 (Colo.2000); see also Colorado Rules of Professional Conduct 1.6(a) (prior version effective until Jan. 1, 2008: "A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation . . ."; and substantially similar current version: "A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent . . ."). The privilege is personal to the client, and only the client may waive it. People v....