State v. Dyke, A-1-CA-36521

CourtCourt of Appeals of New Mexico
Citation456 P.3d 1125
Docket NumberNo. A-1-CA-36521,A-1-CA-36521
Parties STATE of New Mexico, Plaintiff-Appellee, v. Brandon DYKE, Defendant-Appellant.
Decision Date02 December 2019

456 P.3d 1125

STATE of New Mexico, Plaintiff-Appellee,
Brandon DYKE, Defendant-Appellant.

No. A-1-CA-36521

Court of Appeals of New Mexico.

Filing Date: December 2, 2019
Certiorari Denied, January 13, 2020, No.

Hector H. Balderas, Attorney General, Santa Fe, NM, Walter M. Hart, III, Assistant Attorney General, Albuquerque, NM for Appellee

Bennett J. Baur, Chief Public Defender, Santa Fe, NM, Steven J. Forsberg, Assistant Appellate Defender, Albuquerque, NM for Appellant

VANZI, Judge.

{1} After Defendant Brandon Dyke was allowed to withdraw his guilty plea, a jury convicted him of multiple counts of criminal sexual penetration of a minor (CSPM) under the age of thirteen. The district court subsequently sentenced Defendant to ninety-nine years with thirty years suspended, leaving sixty-nine years to be served, minus credit for time served. Defendant appeals his convictions arguing that (1) the district court abused its discretion in disqualifying his counsel of choice; (2) due to vindictive sentencing as a result of the withdrawal of his plea agreement, the case should be remanded for resentencing in front of a different judge; and (3) he received ineffective assistance of counsel. We affirm.


{2} In early 2007 Heather Turner (Mother) reported to Alamogordo police that Defendant had engaged in criminal sexual contact with her then six-year-old daughter (Victim). Shortly thereafter, a grand jury indicted Defendant on five counts of first degree criminal sexual penetration of a minor (CSPM) under thirteen, contrary to NMSA 1978, Section 30-9-11 (2003, amended 2009), six counts of second degree criminal sexual contact of a minor (CSCM) under the age of 13, contrary to NMSA 1978, Section 30-9-13(B) (2003), and one count of third degree CSCM, contrary to Section 30-9-13(C).

{3} Two months after the grand jury indictment, the State filed a criminal information against Mother charging her with child abuse. State v. Heather Turner , D-1215-CR-2007-00137. The charges against Mother arose from the same series of events that resulted in the indictment against Defendant. Attorney Todd Holmes represented Mother in her case and, on December 7, 2007, Mother pled guilty to the charges and was sentenced to a period of incarceration. While Mother’s case was still pending in the district court, the State filed its disclosure of witnesses

456 P.3d 1129

in Defendant’s case listing Mother as a witness.

{4} On December 10, 2007, Defendant entered a written plea and disposition agreement (Agreement) in which he agreed to plead guilty to three counts of first degree CSPM, and one count of second degree CSCM. Among other things, and as part of the Agreement, the State agreed to dismiss the remaining charges against Defendant. There was no agreement as to sentencing at that time; however Defendant was ordered to undergo a sixty-day diagnostic in the Department of Corrections. In the hearing to accept the plea, the district court informed Defendant—in error—that the minimum sentence he faced would be three years. After the hearing, and pursuant to the Agreement, the court entered judgment on June 3, 2008, sentencing Defendant to a total of sixty-nine years of incarceration (three eighteen-year sentences), with portions of it running concurrently, for a total of thirty-six years in prison.

{5} Holmes entered his appearance on behalf of Defendant on March 27, 2012, when he filed a petition for writ of habeas corpus alleging, inter alia, that the district court had erroneously informed Defendant of the minimum possible sentence during the plea colloquy. Defendant sought to have the sentence vacated and for trial to be set. During the hearing on the petition—held three years later on March 16, 2015—the district court told counsel that if it were to set aside the plea, Defendant "would be facing twelve counts that total ... 183 years." Holmes responded that he had "explained that to [Defendant]," and Defendant understood that setting aside the plea could result in "a trial, conviction on all counts, and perhaps a new sentencing." After reviewing the audio of the plea colloquy, the district court agreed that it had "misinform[ed D]efendant that the minimum amount of time was three years as opposed to eighteen," granted Defendant’s petition, set aside the conviction, and set the case for trial.

{6} On January 21, 2016, Holmes filed an unopposed motion to withdraw from further representation of Defendant. As grounds for his motion, Holmes stated that Defendant was "unable to afford representation at a jury trial[,]" that Holmes "was only paid to file a [h]abeas action[,]" and that "[c]ounsel for Defendant has a conflict of interest as he represented Heather Turner who is the mother of [Victim] in the above-captioned proceeding." The district court granted the motion and ordered the public defender department to appoint counsel for Defendant immediately.

{7} The case proceeded and after numerous continuances was finally set for a jury trial on February 21, 2017. On February 7, 2017, the district court entered an order to transport Defendant to be present for the three-day trial. The day after entry of the transport order, and two weeks before the start of trial, Holmes filed an entry of appearance, notice of discovery demand, demand for speedy trial, and initial disclosure of witnesses. The filing stated, among other things, that Defendant intended "to call any and all State’s witnesses, co-defendants, and any witnesses listed in any of the discovery" but made no mention of Defendant’s current court-appointed counsel or Holmes’ prior withdrawal of representation. Although unclear, it appears that Holmes did not serve Jeffrey Van Keulen, the public defender appointed to represent Defendant.

{8} The State immediately filed a motion to deny substitution of counsel and/or motion to disqualify Holmes. As grounds for its motion, the State alleged that Defendant’s court-appointed counsel had not been relieved of his representation in contravention of Rule 5-107(B) NMRA, nor had Holmes sought court-approval for his entry of appearance. The motion also stated that Holmes had "an actual conflict in this cause as he previously represented a co-defendant, [Mother]," and that he was allowed to withdraw from the instant case citing his conflict in representing her. Further, the State contended that Holmes did not have a waiver from Mother, as required by Rule 16-107 NMRA, that Mother would not waive the conflict, and that this information was provided to Mr. Holmes. Mother was still listed on the witness list and was expected to testify at Defendant’s trial.

456 P.3d 1130

{9} After a hearing on the State’s motion to deny substitution of counsel and/or disqualify Holmes, which we discuss in further detail in our analysis below, the district court found that Holmes had a conflict and granted the State’s motion, thereby rejecting Holmes’ entry of appearance. The case proceeded to trial and a jury found Defendant guilty of all the charges brought against him: five counts of CSPM, and seven counts of CSCM under the age of thirteen. Thereafter, the district court sentenced Defendant. This appeal followed.


{10} Defendant raises three arguments. First, Defendant contends his convictions should be reversed because he was improperly denied his counsel of choice. Second, Defendant argues that "[d]ue to vindictive sentencing[,] the case should be remanded for resentencing in front of a different judge." Lastly, Defendant claims he "received ineffective assistance of counsel." For the reasons that follow, we are unpersuaded by any of Defendant’s contentions on appeal.

A. Sixth Amendment Right to Counsel of Choice

I. Standard of Review

{11} "[T]he Sixth Amendment guarantees [the] defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds." United States v. Gonzalez-Lopez , 548 U.S. 140, 144, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) (quoting Caplin & Drysdale, Chartered v. United States , 491 U.S. 617, 624-25, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989) ). But the Sixth Amendment also guarantees representation that is free from conflicts of interest. See Wood v. Georgia , 450 U.S. 261, 269-71, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). While a defendant can knowingly and intelligently waive conflicts of interest, the district court is allowed "substantial latitude" to refuse such waivers in cases of either actual or potential conflict. Wheat v. United States , 486 U.S. 153, 163, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). Thus, a defendant cannot insist on representation by an attorney who has a conflict of interest that would undermine public confidence in the impartiality and fairness of the judicial process. See Gonzalez-Lopez , 548 U.S. at 152, 126 S.Ct. 2557 ; Wheat , 486 U.S. at 159, 108 S.Ct. 1692.

{12} Defendant and the State agree that, although New Mexico has not set out a standard of review for denial of counsel of choice, most appellate courts have reviewed a district court’s disqualification of a defense attorney for conflict of interest under an abuse of discretion standard. See, e.g. , ...

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4 cases
  • State v. Mitchell, A-1-CA-37838
    • United States
    • New Mexico Court of Appeals of New Mexico
    • June 30, 2021
    ...guarantees defendants in criminal proceedings the right to effective assistance of counsel." State v. Dyke, 2020-NMCA-013, ¶ 30, 456 P.3d 1125 (omission, alteration, internal quotation marks, and citation omitted). This includes "[t]he right to effective assistance of counsel free from conf......
  • State v. Comitz, A-1-CA-38412
    • United States
    • New Mexico Court of Appeals of New Mexico
    • March 28, 2022
    ...Defendant's due process challenges, if preserved, are generally subject to de novo review. See State v. Dyke, 2020-NMCA-013, ¶ 24, 456 P.3d 1125 (reviewing de novo the question of "whether a harsher sentence represents a due process violation"). But see State v. Gardner, 2003-NMCA-107, ¶ 39......
  • State v. Gallegos, S-1-SC-37313
    • United States
    • New Mexico Supreme Court of New Mexico
    • January 28, 2021 a district court's grant of substitution of counsel is reviewed for an abuse of discretion. See State v. Dyke, 2020-NMCA-013, ¶ 12, 456 P.3d 1125.2. Relevant law regarding ineffective assistance of counsel due to a conflict{14} A criminal defendant charged with a felony has a Sixth Amend......
  • State v. Barker, A-1-CA-37771
    • United States
    • New Mexico Court of Appeals of New Mexico
    • June 21, 2021
    ...guarantees [the] defendants in criminal proceedings the right to effective assistance of counsel." State v. Dyke, 2020-NMCA-013, ¶ 30, 456 P.3d 1125 (omission, internal quotation marks, and citation omitted). This includes "[t]he right to effective assistance of counsel free from conflicts ......

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