State v. JOANNA V.
| Decision Date | 08 June 2004 |
| Docket Number | No. 28,107.,28,107. |
| Citation | 136 N.M. 40,2004 NMSC 24,94 P.3d 783 |
| Parties | STATE of New Mexico, Petitioner-Respondent, v. JOANNA V., a child, Respondent-Petitioner. |
| Court | New Mexico Supreme Court |
John Bigelow, Chief Public Defender, Trace L. Rabern, Assistant Appellate Defender, Santa Fe, NM, for Petitioner.
Patricia Madrid, Attorney General, M. Victoria Wilson, Assistant Attorney General, Santa Fe, NM, for Respondent.
Ann Halter Albuquerque, NM, for Amicus Curiae Advocacy, Inc.
{1} Joanna V. (Child) sought to set aside a plea based on her claim of ineffective assistance of counsel. Child claims her defense counsel was ineffective due to an irreconcilable conflict of interest that arose when one attorney served as both her Guardian ad Litem (GAL), during abuse and neglect proceedings, and then as her defense attorney during delinquency proceedings. Although this dual relationship had the potential to become an actual, active conflict of interest, one which merited careful judicial scrutiny, we conclude that the record in this case does not demonstrate an actual conflict. Therefore, with some differences noted in the course of this opinion, we agree with the Court of Appeals in its decision to affirm.
{2} In August 2000, the Children, Youth and Families Department (CYFD) initiated abuse and neglect proceedings against Child's mother. Fourteen years old at the time, Child was eventually placed in the custody of the State. An attorney was appointed to serve as Child's GAL during the proceedings.
{3} In May 2001, Child was involved in a fight at school and was charged with one count of disorderly conduct contrary to NMSA 1978, § 30-20-1(A) (1967). After Child pleaded not guilty, the State amended the charge to one count of public affray contrary to NMSA 1978, § 30-20-2 (1963), to which Child pleaded guilty during delinquency proceedings. Child was given two years probation with a condition that she successfully complete the children's court's "Grade Court" program.1 At each of the delinquency proceedings, Child was represented by the same attorney who was also her GAL in the abuse and neglect proceedings. Throughout the delinquency proceedings, Child remained a ward of the State.
{4} From October through December 2001, Child was detained at various times due to violations of her probation and infractions of Grade Court rules. The State petitioned to revoke Child's probation on December 19, 2001. The children's court appointed a new attorney, a public defender, to serve as Child's defense counsel and ultimately revoked Child's probation. On January 3, 2002, the public defender filed a motion to withdraw Child's earlier plea agreement to the charge of public affray. In her motion, Child protested that she had received ineffective assistance of counsel during her plea negotiation because her former defense attorney was also her GAL, placing the attorney in an irreconcilable conflict of interest. After the motion was denied, Child timely appealed, raising her attorney's conflict of interest as evidence of ineffective assistance of counsel.
31 P.3d 1018; accord State ex rel. Children, Youth & Families Dep't v. Tammy S., 1999-NMCA-009, ¶ 20, 126 N.M. 664, 974 P.2d 158 (1998) (). The Rules of Professional Conduct, Rule 16-107(A) NMRA 2004, describes the prohibition against representing a client when the representation will be adverse to another client, and requires lawyers to explain the conflict to the clients and obtain consent after the consultation in order to continue the common representation. See In re Sheehan, 2001-NMSC-020, ¶¶ 11-13, 130 N.M. 485, 27 P.3d 972 (per curiam).
{6} Our Court of Appeals identified two potential categories of conflicts in Martinez. The first, and most common, category of conflict-of-interest cases occurs when counsel represents two clients with divergent interests in the same matter. A second category of conflicts "may arise when the interests of the client and the attorney diverge." Id. ¶ 25. If counsel's duty of undivided loyalty is in any way compromised, such as by personal interests or by loyalties to another party, counsel must avoid representing the client.
{7} In evaluating whether a conflict of interest rendered Child's first defense counsel ineffective, the Court of Appeals reviewed the relevant statutes and concluded that "we find nothing in the statutes relied on by [Child] that prohibits an attorney from acting as a GAL during abuse and neglect proceedings and also serving as the child's defense attorney in delinquency proceedings." State v. Joanna V., 2003-NMCA-100, ¶ 15, 134 N.M. 232, 75 P.3d 832; see also NMSA 1978, § 32A-2-14 (1993) (). The Court also observed that the attorney entered her appearance in the delinquency proceedings as Child's defense counsel, not as GAL. The Court concluded that Child was represented by conflict-free counsel during the delinquency proceedings, even though the record is ambiguous as to when the attorney stopped serving as GAL. Joanna V., 2003-NMCA-100, ¶ 13, 134 N.M. 232, 75 P.3d 832. Although we do not agree with all of the Court of Appeals' analysis, we concur nonetheless in its determination that Child failed to demonstrate on the record an actual conflict of interest.
{8} Child made the motion to withdraw her plea. Child alleged ineffective assistance of counsel due to a conflict. Child had the burden of production with respect to some evidence from which the court could assess the nature of the attorney's relationship with Child and determine the degree of conflict and resulting prejudice, including Child's awareness and consent to the relationship. Regrettably, at the hearing on her motion Child chose to remain mute. She offered no evidence. Enlightening testimony could have come from the Child's attorney or from the Child herself, yet neither was called as a witness. For example, the attorney might have admitted to some confusion about her dual roles. Child might have testified that she never wanted to plead guilty but was confused by her attorney's dual roles. Any number of hypothetical possibilities arise, but without a record we are left with mere conjecture. Instead, Child's legal arguments merely assumed the presence of a conflict and its consequences without demonstrating either on the record.
{9} In the absence of a record, we cannot indulge in speculation and surmise. Instead, we rely on what the record does show: that the plea was entered lawfully and the attorney was abiding by Child's wishes during the delinquency proceedings. The children's court judge questioned Child extensively about her plea, first asking if she intended to plead guilty. The court advised her of the punitive consequences, the rights she was waiving, and that she would be required to recount her participation in the offense. The court also ascertained the basis for the guilty plea from the attorney, and again questioned Child to ensure that she was fully informed by the attorney, and was acting without any undue influence. Child proceeded to describe the incident that led to the charges. The record before us contains nothing to contradict Child's version of the events as recounted to the court, or call into question the voluntary nature of her plea.
{10} On this record, we have no basis to reverse Child's plea or the resulting judgment of the Children's Court. However, given the gravity of the potential conflict when a GAL in abuse and neglect proceedings also serves as defense counsel in delinquency proceedings, we feel compelled to expand upon the Court of Appeals discussion of the issue. Accordingly, we explore further the pitfalls presented when one attorney assumes the duties of both relationships.
{11} The Children's Code requires a GAL to "zealously represent the child's best interests with respect to matters arising pursuant to the provisions of the Children's Code." NMSA 1978, § 32A-1-7(A) (1995). Subsection D directs the GAL to advance the child's position to the court "when reasonable and appropriate," even if the child's...
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