Roberts v. State
Decision Date | 04 October 2013 |
Docket Number | CR–11–1855. |
Citation | 141 So.3d 1139 |
Parties | Barbara Ann ROBERTS v. STATE of Alabama. |
Court | Alabama Court of Criminal Appeals |
OPINION TEXT STARTS HERE
Angela Cochran Morgan, Fort Payne, for appellant.
Luther Strange, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
Barbara Ann Roberts was convicted of capital murder, see § 13A–5–40(a)(2), and first-degree robbery, see§ 13A–8–41, Ala.Code 1975, and was sentenced to life imprisonment without the possibility of parole. This Court affirmed Roberts's conviction and sentence. Roberts v. State, 62 So.3d 1071 (Ala.Crim.App.2010). On January 24, 2011, Roberts “requested appointment of counsel to handle a Rule 32[,Ala. R.Crim. P.,] petition” and also “requested that an attorney other than Ms. Cochran–Morgan be appointed” to represent her. (C. 2.) Cochran–Morgan had represented Roberts in posttrial proceedings and on direct appeal. “Notwithstanding [Roberts's] request on this regard,” the circuit court appointed Cochran–Morgan “to represent [Roberts] with respect to the filing of a Rule 32 petition.” (C. 2.)
In Roberts's petition, Cochran–Morgan alleged—among other things—that “[i]n representing [Roberts] at the posttrial and appellate levels, [Cochran–Morgan] failed to argue an issue that could have led to the reversal of [Roberts's] convictions in th[e] case.” (C. 17.) According to Roberts's petition, Roberts “was greatly prejudiced by [Cochran–Morgan's] deficient performance” and, according to the petition, “there is a reasonable probability that, but for the ... omission by [Cochran–Morgan], the outcome of [Roberts's] appeal of her convictions in this case would have been very different.” (C. 33.) More specifically, Roberts pleaded—through Cochran–Morgan—that Cochran–Morgan was ineffective for failing to argue on appeal that the “[trial] court failed to properly instruct the jury about the intent necessary for a conviction using accomplice liability in a capital murder case.”
In a subsequent hearing on Roberts's petition, Cochran–Morgan continued to represent Roberts. At the hearing, Cochran–Morgan explained her position in the Rule 32 proceedings:
(R. 3–4.) The attorney representing the State conceded that he thought the situation was “irregular” and recognized that Cochran–Morgan's representation of Roberts “render[ed] [Cochran–Morgan] incapable of offering any sworn testimony under oath.” (R. 5.)
As the State anticipated, Cochran–Morgan presented no testimony at the hearing in support of the claims raised in Roberts's petition, including those alleging her own ineffectiveness. Cochran–Morgan did, though, provide argument in support of the petition; in response, the State asserted that the ineffective-assistance-of-appellate-counselclaim lacked merit and, in several instances, reiterated that it was Roberts's burden to prove the claim at the hearing. The circuit court subsequently entered a written order concluding—among other things—that the jury instruction that was given at trial was appropriate and, thus, that Cochran–Morgan had not been ineffective. Roberts now appeals; on appeal, Roberts is again represented by Cochran–Morgan who is again asserting her ineffectiveness as Roberts's appellate counsel. We reverse and remand on the basis that Roberts should not be represented by counsel who is required to assert her own ineffectiveness.
First, we recognize that this issue—although raised below—is not squarely presented on appeal. We cannot, however, envision a procedure by which the propriety of Cochran–Morgan's representation of Roberts—in which Cochran–Morgan is asserting her own ineffectiveness—could be raised and addressed; Roberts cannot file a pro se appellate brief while represented by counsel, seeRule 31(a), Ala. R.Crim. P., nor could Roberts file a subsequent petition for postconviction relief arguing that she received ineffective assistance of postconviction counsel. See Donald v. State, 456 So.2d 142 (Ala.Crim.App.1984) () . In light of the unique nature of this case, we sua sponte address this issue.1
Second, although Alabama caselaw does not squarely address the issue before this Court in this case, our caselaw questions the propriety of an attorney asserting his or her own ineffectiveness. See A.G. v. State, 989 So.2d 1167, 1172 (Ala.Crim.App.2007) . Likewise, the Alabama Rules of Professional Conduct dictate that “[a] lawyer shall not represent a client if the representation of that client may be materially limited by ... the lawyer's own interest.” Rule 1.7(b), Ala. R. Prof. Cond. While it may be true that Cochran–Morgan told the circuit court that Roberts “agreed to let [Cochran–Morgan] continue on as [Roberts's] Rule 32 attorney,” we do not equate Roberts's “agreeing” to Cochran–Morgan's representation with a knowing waiver of the obvious conflict; we note that, to the extent that there could be a waiver, the conflict placed Roberts in the position to waive the conflict or, knowing that the circuit court had already denied her request for a different attorney, risk being unrepresented. Nevertheless, we question whether such a conflict can be cured by waiver. See generally Comments to Rule 1.7, Ala. R. Prof. Cond. ().
Even if this Court were satisfied that Roberts appropriately waived the inherent conflict, the Rules of Professional Conduct also state that “[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness.” Rule 3.7(a), Ala. R. Prof. Cond. As the State asserted at the evidentiary hearing, it was Roberts's burden to prove her ineffective-assistance-of-counsel claim; Cochran–Morgan, by simultaneously representing Roberts and alleging her own ineffectiveness, precluded herself from presenting testimonial evidence in support of one of Roberts's primary postconviction claims.
Third, and finally, although there is no caselaw in Alabama on this issue, other jurisdictions have faced similar dilemmas; notably, a similar case arose in Colorado.2 In Murphy v. State, 863 P.2d 301, 302 (Colo.1993), Murphy—who had been represented at trial by a staff attorney from the Office of the Public Defender—filed a “motion for postconviction relief” in which he “asserted that he had been denied effective assistance of counsel.” Murphy asked the trial court to appoint counsel but requested that appointed counsel not be an attorney from the public defender's office; the trial court, however, appointed a public defender to represent Murphy and subsequently denied Murphy's postconviction motion. Id. at 303. On appeal, the Colorado Court of Appeals concluded that the issue of Murphy's conflicted counsel was moot “because Murphy had no right to the appointment of counsel.” Id. The Colorado Supreme Court, however, concluded that, irrespective of whether Murphy was entitled to counsel related to his postconviction motion,
Murphy, 863 P.2d at 304–05 (citations and quotations omitted). We find Murphy instructive.
Although Roberts was not entitled to counsel to pursue her Rule 32 petition, Roberts requested counsel and requested that she be represented by someone other than Cochran–Morgan; the circuit court, however, denied that request and, like the trial court in Murphy, appointed counsel who had previously represented Roberts. The record does not indicate that the circuit court in this case, like the trial court in Murphy, was aware that Roberts would assert ineffective assistance of appellate counsel; it is not difficult to foresee, though, that Roberts—who was convicted of capital murder and was sentenced to life imprisonment without the possibility of parole—would assert various allegations of ineffective assistance of counsel related to her conviction and appeal.3
Accordingly, based on the facts of this case, we reverse the circuit court's order appointing Cochran–Morgan as counsel for Roberts in the Rule 32...
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Williams v. State
...cases involved situations where there was a right to counsel. In the 2 cases involving postconviction proceedings, Roberts v. State, 141 So. 3d 1139 (Ala. Crim. App. 2013), and People v. Edwards, 497 N.E.2d 1218 (Ill. App. 1986), vacated by 521 N.E.2d 939 (Ill. 1988), neither of these cases......
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Harris v. Comm'r
...conflict of interest whereby counsel would be tasked with asserting their own constitutional deficiency.10 See Roberts v. State , 141 So.3d 1139, 1141–42 (Ala. Crim. App. 2013) (noting that Alabama "caselaw questions the propriety of an attorney asserting his or her own ineffectiveness" and......