State v. Koch
| Decision Date | 02 August 1989 |
| Docket Number | No. 17329,17329 |
| Citation | 777 P.2d 1244,116 Idaho 571 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. David KOCH, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Scott E. Axline, Blackfoot, for defendant-appellant.
Jim Jones, Atty. Gen. by Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for plaintiff-respondent.
Upon a guilty plea, David Koch stands convicted of second degree burglary. The district judge imposed a five-year sentence with a two-year minimum period of confinement. In this appeal, Koch asserts (1) that he was denied effective assistance of counsel, and (2) that his sentence is excessive. We affirm the judgment.
The essential facts may be recited briefly. Koch and a co-defendant were arrested for allegedly stealing tools from a garage in Aberdeen, Idaho. Both were charged with two counts of grand theft and, upon findings of indigency, were furnished court-appointed counsel. Attorney Albert Matsuura appeared for Koch at the arraignment, where Koch entered a plea of not guilty. Matsuura further represented Koch at a pretrial conference, where the judge was informed of pending plea negotiations. It appears that Matsuura also was representing Koch's co-defendant at this time. A hearing on Koch's change of plea was held shortly thereafter. Attorney Jeff Ward represented Koch at this hearing, where Koch entered a plea of guilty to a single charge of second degree burglary. The grand theft charges evidently were dropped. After questioning Koch, the district judge accepted the bargained plea, ordered a presentence investigation, and scheduled the case for sentencing. Matsuura again appeared for Koch at the sentencing hearing. After the judgment was entered, Matsuura withdrew as counsel at Koch's request. A third court-appointed attorney, David Parmenter, filed a notice of appeal on Koch's behalf. Subsequently, Parmenter withdrew due to a conflict, and a fourth attorney, Scott Axline, was appointed for this appeal.
We first address Koch's assertion that he received ineffective assistance of counsel. At the outset, we note that he has elected to raise this issue by direct appeal rather than by seeking post-conviction relief. A claim of ineffective assistance is difficult to evaluate on direct appeal if the adequacy of counsel has not been placed directly at issue below. Accordingly, our Supreme Court has suggested that a petition for post-conviction relief is the better method of presenting such a claim. See State v. Tucker, 97 Idaho 4, 539 P.2d 556 (1975). We have expressed a similar view. See, e.g., State v. Scroggie, 110 Idaho 103, 107, 714 P.2d 72, 76 (Ct.App.1986) (review denied); State v. Rendon, 107 Idaho 425, 426, 690 P.2d 360, 361 (Ct.App.1984). Today, we are constrained to address the issue as presented, but we repeat the admonition that ineffective assistance of counsel is not a subject ordinarily well suited to a direct appeal.
Koch argues that he was denied effective assistance of counsel (a) because he was "shuffled" among multiple attorneys, and (b) because one of the attorneys, Matsuura, represented multiple defendants. Underlying both arguments are the Sixth Amendment of the United States Constitution and Article 1, § 13, of the Idaho Constitution, which guarantee the right to effective assistance of counsel in criminal proceedings.
We first consider the multiple attorney issue. Unlike the multiple defendant issue discussed below, a single defendant's representation by multiple attorneys does not generate any concern about conflicts of interest. The multiple attorney issue is subject to the ordinary two-part test articulated by the United States Supreme Court for determining whether the right to effective assistance of counsel has been abridged: (1) whether counsel's performance fell below an objective standard of reasonableness, and (2) whether the defense was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The Idaho Supreme Court has interpreted these requirements to mean that the defendant "must show actual unreasonable representation and actual prejudice." Estes v. State, 111 Idaho 430, 434, 725 P.2d 135, 139 (1986) (emphasis original).
In this case Koch suggests that his representation by Matsuura at the arraignment, and by Ward when he entered his guilty plea, could have prejudiced his defense. However, he makes no showing that the performance of Matsuura or Ward actually was deficient. Rather, he invites us to adopt a rule of presumptive prejudice whenever a criminal defendant is represented by more than one attorney. Such a rule would contravene the general requirement of actual prejudice under Strickland and Estes. We decline to adopt it.
The multiple defendant issue requires more elaborate discussion. Matsuura represented both Koch and a co-defendant. Under the Sixth Amendment, an accused has the right to representation free from conflicts of interest. Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981). Joint representation is not a per se violation of this right. Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173, 1177, 55 L.Ed.2d 426 (1978); Roles v. State, 100 Idaho 717, 719, 604 P.2d 731, 733 (1979). However, the courts have recognized that "a possible conflict [of interest] inheres in almost every instance of multiple representation." Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980) (emphasis added).
Consequently, a conflict of interest arising from an attorney's representation of multiple defendants has been expressly excepted from the requirement that actual prejudice be shown. See Strickland, 466 U.S. at 686, 688, 104 S.Ct. at 2064. This exception reflects the Supreme Court's holding in Cuyler, that prejudice is presumed when defense counsel is burdened by an actual conflict of interest. However the narrowness of this exception must be emphasized. A presumption of prejudice is triggered only by an actual conflict of interest. The conflict itself must be shown; it will not be presumed. As stated in Cuyler, prejudice is presumed only if the defendant demonstrates that counsel "actively represented conflicting interests" and "that an actual conflict of interest adversely affected his lawyer's performance." 446 U.S. at 346, 348, 100 S.Ct. at 1717, 1718. Thus, there is not a double presumption of conflict and prejudice in a multiple representation case. McNeeley v. State, 111 Idaho 200, 722 P.2d 1067 (Ct.App.1986).
When neither the defendant nor his lawyer objects to concurrent representation of a co-defendant, the trial court generally is entitled to assume that no conflict exists or that the defendant knowingly has accepted such a risk. Cuyler, 446 U.S. at 346-47, 100 S.Ct. at 1717. Of course, if special circumstances exist--such as an objection to multiple representation or an awareness by the court of facts reasonably suggesting a conflict--the court has a duty to inquire and to take appropriate remedial action. Id. at 347, 100 S.Ct. at 1717; Holloway v. Arkansas, supra. It also may be prudent for a trial court to warn each defendant of the risks of multiple representation, see Roles v. State, 100 Idaho at 720, 604 P.2d at 734 (Bistline, J., dissenting), but there is no constitutional requirement that the court give such a warning sua sponte. Cuyler, 446 U.S. at 347, 100 S.Ct. at...
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