State v. Aase, A13-2200

• Decision Date: 17 February 2015
• Docket Number: A13-2200
• Parties: State of Minnesota, Respondent, v. Jeffrey Nicholas Aase, Appellant
• Court: Minnesota Court of Appeals

State of Minnesota, Respondent, v. Jeffrey Nicholas Aase, Appellant

A13-2200

STATE OF MINNESOTA IN COURT OF APPEALS

February 17, 2015

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).

Affirmed

Stauber, Judge

Concurring specially, Minge, Judge,^*

Wright County District Court

File No. 86-CR-11-270

Lori Swanson, Attorney General, Karen B. Andrews, Assistant Attorney General, St. Paul, Minnesota; and

Thomas N. Kelly, Wright County Attorney, Buffalo, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie L. Nelson, Special Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hudson, Presiding Judge; Stauber, Judge; and Minge, Judge.

UNPUBLISHED OPINION

STAUBER, Judge

Appellant challenges his conviction for criminal sexual conduct, arguing that his trial counsel had a personal conflict of interest that denied him effective assistance of counsel. Because any conflict arose after trial was complete and appellant cannot show that the trial outcome would have been different without the claimed deficient performance, we affirm.

FACTS

Appellant Jeffrey Nicholas Aase was charged and tried on six counts of second-degree criminal sexual conduct involving his minor stepdaughters. The victims testified that Aase touched their vaginal areas and breasts while they would give him back rubs. Aase claimed the victims fabricated their statements because they did not like his strict parenting. Aase retained private trial counsel. Four days before trial and without informing Aase, trial counsel applied for a position at the Wright County Attorney's Office. During jury deliberations in Aase's case, trial counsel had lunch with the prosecutor, informed the prosecutor of his job application, and the prosecutor wished him "good luck." The jury found Aase guilty on all counts.

Approximately 80 candidates applied for the assistant county attorney position. About two weeks after trial, trial counsel and seven others were interviewed. Following a second interview five days later, trial counsel was offered and accepted the position. Trial counsel began employment with the county attorney's office roughly one monthlater. After contacting the Minnesota Board of Professional Responsibility, trial counsel informed Aase of his new position and that he could not represent him at sentencing.

Aase subsequently filed a motion for a new trial, claiming trial counsel had a conflict of interest during his trial. The district court held an evidentiary hearing and determined that trial counsel did not have a conflict of interest until he accepted the position post trial and that trial counsel zealously represented Aase during trial. The evidentiary hearing focused on establishing the time frame of trial counsel's job application and acceptance.

Aase moved for a downward departure at sentencing. The district court denied this request and imposed concurrent sentences of 90 months and 130 months on two of the charges under Minn. Stat. § 609.343, subd. 1(h)(iii) (2010) (stating that a person is guilty of second-degree criminal sexual conduct when he engages in sexual contact with another person with whom he has a significant relationship and who was under 16 years of age at the time of the contact, and the "sexual abuse involved multiple acts committed over an extended period of time"). This appeal followed.

DECISION

Aase claims that he was denied effective assistance of counsel because his trial counsel applied for an assistant county attorney position before his trial, creating a personal conflict of interest. Ineffective-assistance-of-counsel claims involve mixed questions of law and fact, which we review de novo. Carney v. State, 692 N.W.2d 888, 890-91 (Minn. 2005). A criminal defendant has the constitutional right to effective assistance of counsel, including the right to "representation that is free from conflicts ofinterest." Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 1103 (1981); State v. Patterson, 812 N.W.2d 106, 112 (Minn. 2012). A conflict of interest arises if "there is a significant risk that the representation of [a client] will be materially limited . . . by a personal interest of the lawyer." Minn. R. Prof. Conduct 1.7(a)(2).

The defendant bears the burden of proof when bringing an ineffective-assistance-of-counsel claim. State v. Miller, 666 N.W.2d 703, 716 (Minn. 2003). The defendant must "demonstrate that counsel's representation fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel's errors." State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998); Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064 (1984) (holding that a defendant must show his attorney's performance was deficient in that it "fell below an objective standard of reasonableness" and that the deficient performance deprived the defendant of a fair trial, defined as "a trial whose result is reliable"). Ineffective-assistance-of-counsel claims are typically reviewed under the Strickland standard.

But for cases involving an actual conflict of interest, courts use a modified two-prong test. When a defendant alleges that counsel's effectiveness was undermined by a conflict of interest, but failed to object at trial, he need not demonstrate prejudice if he is able to show that the conflict of interest actually affected counsel's representation. Cuyler v. Sullivan, 446 U.S. at 350, 100 S. Ct. at 1719 (1980) (holding that where the same attorneys represented appellant's codefendants, who were later acquitted at separate trials, the lower court was required to consider whether the conflicting interest adverselyaffected the appellant). "A defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to gain relief." Gustafson v. State, 477 N.W.2d 709, 713 (Minn. 1991) (quoting Cuyler, 446 U.S. at 349-50, 100 S. Ct. 1709 at 1719). But cf. State v. Paige, 765 N.W.2d 134, 140141 (Minn. App. 2009) (noting that "a defendant who raised no objection at trial must demonstrate that defense counsel actively represented conflicting interests and [that] this conflict adversely affected the lawyer's performance," but that where a defendant makes the district court aware of a probable conflict and the court "fails to take adequate steps to ascertain whether an impermissible conflict exists, the defendant's conviction must be reversed without inquiry into prejudice resulting from the alleged conflict").

Representation is actually affected if "counsel was influenced in his basic strategic decisions." Wood v. Georgia, 450 U.S. 261, 272, 101 S. Ct. 1097, 1103 (1981). Similarly, representation is actually affected if "the advocate's conflicting obligations have effectively sealed his lips on crucial matters." Holloway v. Arkansas, 435 U.S. 475, 490, 98 S. Ct. 1173, 1181 (1978). We note that the Cuyler test for ineffective assistance of counsel is typically applied to conflict cases involving multiple representation. See, e.g. Caban v. United States, 281 F.3d 778, 781-82 (8th Circ. 2002) (describing the development of the Cuyler standard and other ineffective-assistance-of-counsel standards involving conflicts of interest). Aase urges us to apply the Cuyler standard, but fails to cite cases that apply Cuyler to a scenario where defense counsel applies for a job in the prosecuting attorney's office. We apply Strickland here because any conflict was notknown until after trial, and, therefore, Aase could not have objected at trial. However, we reach the same outcome under both the Strickland and Cuyler tests.

I. Conflict of interest

Aase first argues that his trial counsel "became personally conflicted after he decided to apply for a position with the Wright County Attorney's Office." A lawyer is prohibited from representing a client where there is a concurrent conflict of interest. Minn. R. Prof. Conduct 1.7. "[W]hen a lawyer has discussions concerning possible employment with an opponent of the lawyer's client ... such discussions could materially limit the lawyer's representation of the client." Id. at cmt. 10 (emphasis added).

Aase has not demonstrated the first prong of Strickland: that his trial counsel rendered unreasonable representation. Trial counsel called his college friend, an assistant Wright County attorney, to ask about the working environment in the county attorney's office, but otherwise did not participate in job discussions or interviews until several weeks after the conclusion of Aase's trial. Aase claims that given the adversarial nature of a felony criminal-sexual-conduct case involving children, trial counsel would not have wanted to outshine the prosecutor. We are not persuaded. We agree with the district court's post-conviction findings: "[a]ny implication that a defense attorney would not zealously represent a client because s/he was considering a job change, even before s/he is granted an interview, flies in the face of reason." An attorney who "rolls over" on his client is not an attractive candidate.

Next, applying the Cuyler test, we decline to hold that the act of submitting a job application, without more, creates a per se conflict. At post-conviction proceedings, theWright County Attorney testified that over 80 people applied for the position. Trial counsel did not have his first interview until several weeks after Aase's trial concluded, and the trial prosecutor did not directly participate in the hiring process. On these facts, Aase has failed to show that his trial counsel's performance was deficient under Strickland and has not demonstrated an actual—and not just possible—conflict under Cuyler.

We note that trial counsel did not inform his client of his job application and conclude that the best practice is to inform the client and the court of any potential...