State v. Galaviz

• Decision Date: 28 December 2012
• Docket Number: 101,085.,Nos. 101,084,s. 101,084
• Citation: 291 P.3d 62
• Parties: STATE of Kansas, Appellee, v. Jose GALAVIZ, Appellant.
• Court: Kansas Supreme Court

291 P.3d 62

STATE of Kansas, Appellee,

v.Jose GALAVIZ, Appellant.

Nos. 101,084, 101,085.

Supreme Court of Kansas.

Dec. 28, 2012.

Syllabus by the Court

1. A Kansas criminal defendant has a constitutional right to effective assistance of counsel in a probation revocation proceeding under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. This right includes the right to conflict-free counsel.

2. Under Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291,reh. denied535 U.S. 1074, 122 S.Ct. 1954, 152 L.Ed.2d 856 (2002), when a criminal defendant or his or her attorney voices a timely objection to the attorney's concurrent representationof multiple clients with antagonistic interests and the district court fails to investigate the conflict, prejudice is presumed and reversal is automatic.

3. Under Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291,reh. denied535 U.S. 1074, 122 S.Ct. 1954, 152 L.Ed.2d 856 (2002), when a criminal defendant's attorney concurrently represents multiple clients with antagonistic interests but there was no objection to the conflict of interest before or during the district court proceeding, a defendant must demonstrate in a postconviction proceeding that the conflict of interest adversely affected the adequacy of the attorney's representation.

4. The United States Supreme Court has not defined a criminal defendant's burden for establishing a basis to reverse a district court's order in a proceeding where it is alleged the defendant's attorney was ineffective because of a conflict of interest that is rooted in the attorney's obligations to a former client or in the attorney's personal or financial interests.

5. Under Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291,reh. denied535 U.S. 1074, 122 S.Ct. 1954, 152 L.Ed.2d 856 (2002), a district court has a duty to inquire when there is an objection to an attorney's concurrent representation of multiple clients with antagonistic interests, and a failure to perform that duty of inquiry requires automatic reversal.

6. Under Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291,reh. denied535 U.S. 1074, 122 S.Ct. 1954, 152 L.Ed.2d 856 (2002), even if there is no objection to an attorney's representation of multiple clients with antagonistic interests, a trial court has a duty to conduct a sua sponte inquiry where the court knows or reasonably should know that a particular conflict exists. Even if the trial court fails to perform this duty, a defendant must demonstrate that a conflict of interest adversely affected the adequacy of the attorney's representation.

7. Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291,reh. denied535 U.S. 1074, 122 S.Ct. 1954, 152 L.Ed.2d 856 (2002), effectively overrules portions of this court's decision in State v. Jenkins, 257 Kan. 1074, 898 P.2d 1121 (1995).

8. A criminal defendant is not entitled to automatic reversal of a district court's order to revoke probation where the defendant's attorney had served as the guardian ad litem for the victim of the defendant's crime if a timely objection to the multiple representations was not made before or during the proceeding. On appeal, the defendant, at a minimum, must show that the conflict of interest had an adverse effect on the attorney's representation.

9. When an ineffective assistance of counsel claim is asserted for the first time on appeal, the factual aspects of a claim of ineffective assistance of counsel generally require that the matter be resolved through an action under K.S.A. 60–1507 or through a request for an appellate court to remand the issue to the district court for an evidentiary hearing under State v. Van Cleave, 239 Kan. 117, 119–21, 716 P.2d 580 (1986).

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, argued the cause, and Carl Folsom, III, of the same office, was on the brief for appellant.

Terry J. Malone, county attorney, argued the cause, and David Belling, deputy county attorney, and Steve Six, attorney general, were on the brief for appellee.

The opinion of the court was delivered by LUCKERT, J.:

In this appeal involving a probation revocation, Jose Galaviz argues his attorney's position as the guardian ad litem for the victim of one of Galaviz' crimes created a per se conflict of interest that denied Galaviz his right to effective assistance of counsel at his probation revocation proceeding. Galaviz, citing State v. Jenkins, 257 Kan. 1074, 898 P.2d 1121 (1995), argues this conflict so offended his rights as guaranteed by the Sixth Amendment to the United States Constitution that reversal is automatic and he is not required to show that the conflict had an adverse effect on his attorney's representation.

The Court of Appeals rejected this argument. Relying on the United States Supreme Court's decision of Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291,reh. denied535 U.S. 1074, 122 S.Ct. 1954, 152 L.Ed.2d 856 (2002), the Court of Appeals held Galaviz had to show the multiple representation had an adverse effect on the attorney's representation of Galaviz because Galaviz did not object to the multiple representation. Further, the Court of Appeals concluded Galaviz did not meet his burden and was not entitled to relief. See State v. Galaviz, Nos. 101,084 and 101,085, –––Kan.App.2d 2009, 2009 WL 5206238, at *3–4 (Kan.App.2009) (unpublished opinion).

In his petition seeking this court's review of the Court of Appeals' decision, Galaviz argues the Court of Appeals erred in not following Jenkins. To analyze that argument, we compare Mickens and Jenkins, both of which apply the Sixth Amendment, and conclude the United States Supreme Court's analysis controls and that Mickens effectively overrules portions of Jenkins. Under Mickens, a defendant is not entitled to automatic reversal based on the defense attorney's conflict of interest if there was no timely objection to the attorney's representation. Rather, as the Court of Appeals concluded, Galaviz must establish that the conflict of interest had an adverse effect on his attorney's representation of him. Nevertheless, we disagree with the Court of Appeals' conclusion that this determination can be made on the record on appeal. We conclude a remand is appropriate to determine whether Galaviz can meet his burden under Mickens.

FACTUAL AND PROCEDURAL BACKGROUND

This appeal follows a district court's decision to revoke Galaviz' probation in two cases. In one of the cases, Galaviz had pleaded guilty to a charge of aggravated indecent liberties with a child under the age of 14. In the second case, he had pleaded guilty to possession of methamphetamine. At the time of the original sentencing, the State, consistent with its plea agreement with Galaviz, recommended a downward dispositional departure from a presumptive prison sentence to probation. The court accepted the parties' sentencing recommendation and placed Galaviz on probation.

Fifteen months later, a probation revocation proceeding was initiated. The court appointed Mark Cowell to represent Galaviz. Initially, Galaviz denied the State's allegations. Before the evidentiary hearing was held, Galaviz was found guilty of new offenses, and the State amended its motion to revoke probation by adding the new convictions as additional probation violations. Galaviz then admitted he had violated conditions of his probation, and the court revoked probation.

At the subsequent disposition hearing, Cowell, on Galaviz' behalf, urged the court to reinstate probation, arguing in part:

“Now, Your Honor, I was not the attorney who represented Mr. Galaviz in [the aggravated indecent liberties] case and I think that's specifically because I was the guardian ad litem of the child who—or the young lady who was the victim, and as it turned out, this young lady—I did notice something about her. I'm not trying to say that it is appropriate ever to have contact with a young lady, but she certainly was among the more willing young ladies.”

In addition, Cowell argued that Galaviz had attended sexual offender treatment, completed community service, completed a substance abuse program, and remained drug free. Cowell also noted that Galaviz had a job if he was released from jail.

The district court rejected Galaviz' request to be reinstated to probation, citing Galaviz' extensive criminal history. The court remanded Galaviz to the Kansas Department of Corrections to serve the prison sentences that had been announced at the original sentencing hearings in the two cases.

Regarding the record relating to Cowell's conflict of interest, Cowell's brief reference to his role as the guardian ad litem for the victim in the aggravated indecent liberties case was the first and only reference in the record to the circumstances that gave rise to Galaviz' conflict of interest argument. NeitherCowell nor Galaviz objected, and the district court did not make any inquiry. Thus, as the State argues, there is no information in the record regarding the type of proceeding that led to Cowell's appointment as the victim's guardian ad litem; the date on which Cowell was appointed to serve as the guardian ad litem; the date, if any, on which Cowell's obligations as guardian ad litem terminated; or the relationship, if any, between the two proceedings.

Court of Appeals' Decision

Galaviz appealed the district court's decision to revoke his probation and, for the first time, argued that Cowell had a conflict of interest that required reversing the decisions to revoke probation and to sentence Galaviz to prison. Although Galaviz did not object to Cowell's representation during the district court proceeding, in his arguments to the Court of Appeals he claimed the facts contained in the record were sufficient for an appellate court to resolve the issue. As we have noted, Galaviz relied on Jenkins, 257 Kan. 1074, 898 P.2d 1121, to support his argument that he...