State v. Fenton
| Docket Number | 8.4444 |
| Decision Date | 25 May 2023 |
| Parties | THE STATE OF NEVADA, Appellant, v. JOHN MARK FENTON, Respondent. |
| Court | Nevada Supreme Court |
UNPUBLISHED OPINION
ORDER OF REVERSAL AND REMAND
This is an appeal from a district court order granting a postconviction petition for a writ of habeas corpus. Fourth Judicial District Court, Elko County; William A. Maddox Judge.
Factual and procedural background[1]
Almost 14 years ago, police arrested respondent John Mark Fenton for driving under the influence. Further investigation revealed that Fenton was driving the vehicle of a 71-year-old man found bleeding and injured at a nearby car wash. The State charged Fenton with battery with intent to kill, burglary grand larceny, and both robbery and battery of a person 60 years or older. Counsel from the Elko County Public Defender's Office (Counsel) represented Fenton on these charges.
Before the trial, Fenton was initially out on bail. He was using drugs during this time. And, one day, Counsel learned that Fenton was using drugs in front of his child. Given the potential imminent dangers of using drugs while caring for the child, Counsel discussed whether to call Nevada's Division of Child & Family Services ("DCFS") for a welfare check with her supervisor at the Public Defender's Office. The supervisor agreed that Counsel was under an ethical obligation to call in the welfare check, so Counsel did so. This led to Fenton's arrest and revocation of bail. Fenton remained in jail through trial as a result.
Counsel entertained different defense theories in preparing for trial. One of these theories was that Fenton suffered from "pharmacological delirium." Such delirium, an expert doctor would explain, arose from a combination of drug use, post-traumatic stress from Fenton's military service, and attendant mental health issues. Another theory was that a different individual committed the crime. At trial, Counsel opted for this latter theory. The jury ultimately found Fenton guilty of (1) battery resulting in substantial bodily harm upon a person over 60, (2) burglary (3) robbery of a person over 60, and (4) grand larceny of a motor vehicle, all of which are category B felonies. The district court sentenced Fenton to an aggregate of 10 to 32 years in prison. This court affirmed the conviction on direct appeal.
Counsel continued to represent Fenton through these sentencing and appellate proceedings. At some point between Fenton's rearrest and the start of the appeals process, Fenton and Counsel began a romantic relationship. Both agree that the relationship was over by the time this court affirmed Fenton's conviction on appeal.
After exhausting all avenues on direct appeal, Fenton filed a post-conviction petition for a writ of habeas corpus. There was no argument about either Fenton's romantic relationship with Counsel or the welfare check in the first petition. The second amended petition, however, raised the issue of the romantic relationship. In particular, Fenton argued that he did not need to show the typical Strickland v. Washington, 466 U.S. 668 (1984), prejudice from alleged ineffective assistance of counsel because the relationship satisfied Cuyler v. Sullivan, 446 U.S. 335 (1980). Cuyler applied, according to Fen ton, because the relationship evidenced a conflict of interest that "adversely affected [Counsel's] performance and left [Fenton] without constitutionally guaranteed representation." In opposition, the State argued that Fenton could not show the relationship either prejudiced or adversely affected Counsel's representation. Fenton replied, pointing to statements in various phone calls exchanged with Counsel. Such statements, excerpted without context, allegedly evidenced her deficient performance.
The district court then held an evidentiary hearing. Both Fenton and Counsel testified at the hearing. While neither disputed the existence of the relationship at the hearing, they disputed when it began. Fenton alleged that Counsel initiated the relationship shortly after the welfare check and before trial. Counsel maintained that the relationship began after trial but before sentencing. Both agreed, however, that there was no sexual intercourse.
Fenton also discussed the effect of the welfare check at the hearing, stating that he felt trapped in view of the arrest and subsequent relationship. Meanwhile, Counsel explained that she felt compelled to contact DCFS pursuant to her ethical obligations. Counsel also explained that, while she gave Fenton the option to obtain a different attorney after the arrest, Fenton orally consented to Counsel's continued representation. Fenton did not refute either of these points.
Fenton also testified about his objections to Counsel's trial strategy and the decision to not call the expert doctor to discuss Fenton's military service, mental health issues, and drug usage at trial. In contrast, Counsel testified that she made a strategy-based decision not to call the expert doctor in favor of a theory that Fenton did not commit the crimes charged. Counsel was concerned that Fenton's noncompliance with prescribed medications would have come in had the doctor testified, which could have opened the door to other "bad facts," including VA medical records describing him as "confrontational" and short-tempered.
By the end of the hearing, Fenton agreed to withdraw all the grounds raised in his first petition.[2] Thus, only the conflict-of-interest claim based on the romantic relationship remained; there was no claim premised on Strickland prejudice. The district court ultimately granted relief. In doing so, the district court did not resolve the dispute between Counsel and Fenton as to when the relationship commenced. However, it recognized that a conflict of interest arose once Counsel "called the authorities for a welfare check and had [Fenton] arrested" for using drugs in front of Fenton's child. "At this point," the district court explained that Counsel "should have withdrawn regardless of the client's willingness to waive the conflict" because Fenton could no longer have "a candid relationship" with Counsel. In combination with the romantic relationship, the district court found that Fenton and Counsel suffered a "breakdown in communication" that "rose to an actual conflict of interest" under Cuyler.
The State now appeals. It argues that Cuyler cannot supply relief because the record does not indicate that the romantic relationship or the welfare check adversely affected Counsel's representation of Fenton.[3] Meanwhile. Fenton insists that Cuyler supports habeas relief here because the "sexual and emotional manipulation" from the purportedly non-consensual relationship invaded every facet of the representation.[4]
Standard of review
In a habeas proceeding, a claim of ineffective assistance of counsel raises mixed questions of law and fact subject to de novo review. Rubio v. State, 124 Nev. 1032, 1039, 194 P.3d 1224, 1229 (2008). A district court's factual findings, however, are generally entitled to deference by this court. Id. In addition, review of counsel's representation is "highly deferential" in order to "avoid the distorting effects of hindsight." Evans v. State, 117 Nev. 609, 622, 28 P.3d 498, 508 (2001), overruled on other grounds by Lisle v. State, 131 Nev. 356, 366 n.5, 351 P.3d 725, 732 n.5 (2015).
The district court erred in granting habeas relief
Fundamentally, a criminal defendant is deprived of effective counsel where "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686. Strickland delineates a two-part test to determine whether a defendant is entitled to habeas relief for such a deprivation: they must show (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. Id. at 687; see also Warden v. Lyons, 100 Nev. 430, 432, 683 P.2d 504, 505 (1984) (adopting Strickland). The latter showing of prejudice is essential, as "a violation of the Sixth Amendment right to effective representation is not complete until the defendant is prejudiced." United States v. Gonzalez-Lopez, 548 U.S. 140, 147 (2006) (internal quotation marks omitted).
Yet, reviewing courts can presume prejudice where a defendant who fails to object to a conflict at trial establishes that "an actual conflict of interest adversely affected his lawyer's performance." Cuyler, 446 U.S. at 350. As Cuyler explained, it is the "conflict itself that renders counsel ineffective. Id. at 349. Although Cuyler concerned a conflict based on joint representation, this court has applied Cuyler to alleged conflicts beyond that context. See, e.g., Clark v. Slate, 108 Nev. 324, 326-27, 831 P.2d 1374, 1376 (1992) (); Belcher v. State, 136 Nev. 261, 270, 464 P.3d 1013, 1025 (2020) ().[5] But given that the parties relied entirely on Cuyler in briefing the alleged conflicts here, we do the same for the purposes of our analysis. Specifically, we address only whether the district court's conclusion-that the romantic relationship and "narrow fact" that the welfare check led to Fentons arrest caused a "breakdown in communication"-satisfies Cuyler.
This conclusion identifies two purported conflicts of interest (1) the romantic relationship and (2) the welfare check. Both parties, as well as the district court, initially assessed each in view of the Rules of Professional Conduct. The State acknowledges on appeal that the romantic relationship violated Rule 1.8, which bars sexual...
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