State v. Tirado

• Decision Date: 16 February 2017
• Docket Number: No. 20140967-CA,20140967-CA
• Citation: 392 P.3d 926
• Court: Utah Court of Appeals
• Parties: STATE of Utah, Appellee, v. William TIRADO, Appellant.

392 P.3d 926

STATE of Utah, Appellee,

v.William TIRADO, Appellant.

No. 20140967-CA

Court of Appeals of Utah.

Filed February 16, 2017

Margaret P. Lindsay and Douglas J. Thompson, Attorneys for Appellant.

Sean D. Reyes and Kris C. Leonard, Salt Lake City, Attorneys for Appellee.

Judge Michele M. Christiansen authored this Opinion, in which Judges Kate A. Toomey and Jill M. Pohlman concurred.

Opinion

CHRISTIANSEN, Judge:

¶1 William Tirado (Defendant) challenges his conviction on one count of arranging the distribution of a controlled substance, a second degree felony.¹ Specifically, he contends that he received constitutionally ineffective assistance of counsel because his attorney labored under a conflict of interest arising from the concurrent representation of Defendant's cousin (Cousin) on related charges. Defendant seeks (1) reversal of his conviction(s) and remand for a new trial or (2) remand for an evidentiary hearing pursuant to rule 23B of the Utah Rules of Appellate Procedure. We remand for a limited evidentiary hearing.

BACKGROUND

¶2 On appeal from a jury verdict, we view the evidence and all reasonable inferences in the light most favorable to that verdict and recite the facts accordingly; however, we also discuss conflicting evidence as necessary to understand the issues raised on appeal. State v. Dozah , 2016 UT App 13, ¶ 2, 368 P.3d 863.

¶3 A confidential informant approached his police contact (Officer), saying that he had arranged to purchase approximately 7 grams of methamphetamine from Defendant for $ 440. Officer set up a sting operation to catch those involved.

¶4 Officer drove past Defendant's house and saw him standing out front with Cousin. Officer recognized Cousin as someone with whom he "had prior dealings" for drug activities. Officer parked around the corner and had the informant call Defendant. The informant asked Defendant whether "he had it" and then confirmed "four-four-zero." Although there was no specific mention of drugs, Officer testified at trial that such obfuscations were a normal part of drug transactions. Indeed, while testifying at trial, the informant stated that asking whether Defendant "had it" meant asking "if he had the dope, if he had it on him."

¶5 The informant then told Defendant to meet him near a library. Officer searched the informant before giving him cash to make the deal and fitting him with an audio recording device. Officer instructed the informant not to cross the street "for his and for officer safety." The informant then walked down the street and stopped at a corner across the street from Defendant, who asked if the informant had the money. After the informant replied affirmatively, Defendant stated that "my friend's already left" or "they've already left." Due to Officer's instruction not to cross the street, the informant and Defendant "held at their corners" and "were mostly conversing back and forth across the street, mostly trying to get one another to cross the street to meet." Ultimately, the two did not have a face-to-face meeting, no drug transaction took place, and the informant just walked away.

¶6 Officer then arrested Cousin, apparently because Cousin was already wanted on other drug charges. Cousin had 2.1 grams of methamphetamine on his person—less than half of the 7 grams the informant had agreed to buy from Defendant. Cousin stated in his police interview that "if he needed to sell [methamphetamine], he would sell from that specific amount." At Defendant's trial, Officer testified that, in previous sting operations, Officer himself had purchased drugs from Cousin. Officer further testified that "from my knowledge of [Cousin], he deals directly to his people" and did not use an intermediary.

¶7 Officer also took Defendant into custody, but found no drugs or paraphernalia on his person. While Defendant was in custody, other police officers obtained permission from Defendant's fiancée and roommate to search his home. The search turned up drug paraphernalia—pipes, baggies, and scales—that Defendant later admitted were "all his." Defendant was charged by information with possession of drug paraphernalia; after he pled not guilty to that charge, the State amended the information to add the felony charge of arranging the distribution of a controlled substance.

¶8 Defendant and Cousin were represented by the same appointed counsel (Attorney) in their separate cases. Cousin pled guilty to amended charges stemming from his involvement in this case. At Defendant's subsequent trial, Attorney did not call Cousin as a witness and did not challenge Cousin's out-of-court statements that were admitted as evidence against Defendant. The jury returned guilty verdicts on both counts and Defendant timely appealed.

ISSUE AND STANDARD OF REVIEW

¶9 Defendant contends that he received constitutionally ineffective assistance of counsel because Attorney "labor[ed] under an actual conflict of interest which adversely affected counsel's performance." He seeks reversal of his conviction or, alternatively, a remand to the district court to conduct an evidentiary hearing to supplement the record regarding this claim.

¶10 When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must determine whether the defendant was deprived of the effective assistance of counsel as a matter of law. Layton City v. Carr , 2014 UT App 227, ¶ 6, 336 P.3d 587. Similarly, because a motion seeking a rule 23B remand is necessarily brought for the first time on appeal, no standard of review applies.

ANALYSIS

¶11 Defendant contends that Attorney's representation of both Defendant and Cousin amounted to a conflict of interest, and that the conflict of interest caused Attorney's representation of Defendant to fall below the constitutionally mandated level. Specifically, Defendant argues that Attorney's duties of loyalty to both Defendant and Cousin led to "a significant risk that the representation of one or more clients [would] be materially limited by the lawyer's responsibilities to another client." See Utah R. Prof'l Conduct 1.7(a)(2).

¶12 Defendant notes that, by the time of Defendant's trial, Cousin had pled guilty to attempted possession of a controlled substance and had been sentenced.² Defendant points to the fact that the State's introduction of "evidence of [Cousin's] crime, his statements, [and] his criminal history ... was admitted without objection or challenge from the defense" and argues that "this evidence was used by the State to bolster the otherwise unsupported claims of the paid confidential informant." Defendant asserts that Attorney's decision not to challenge this evidence was the result of Attorney being "forced to choose to compromise [Defendant's] interests in challenging the State's evidence ..., or to compromise [Cousin's] interest in keeping his confidential communications private, in maintaining the lawyer/client relationship and loyalty, and in keeping in the good graces of the State." Essentially, Defendant claims that Attorney was unable to wholeheartedly and zealously represent him because Attorney was worried about compromising Cousin's attorney–client confidences or jeopardizing Cousin's status with the State or the Board of Pardons and Parole.³

¶13 "To succeed on a claim of ineffective assistance of counsel, a defendant must show that trial counsel's performance was deficient and that the defendant was prejudiced thereby." State v. Hards , 2015 UT App 42, ¶ 18, 345 P.3d 769 (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). "Where trial counsel's alleged ineffectiveness caused or exacerbated record deficiencies, defendants ... have an appropriate procedural tool for remedying those deficiencies." State v. Litherland , 2000 UT 76, ¶ 16, 12 P.3d 92. That tool is rule 23B of the Utah Rules of Appellate Procedure. Id. ¶¶ 13–15. Rule 23B allows an appellant to make a motion to "remand the case to the trial court for entry of findings of fact, necessary for the appellate court's determination of a claim of ineffective assistance of counsel." Utah R. App. P. 23B(a). However, "[t]he motion shall be available only upon a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective." Id.

¶14 Generally, a defendant's motion seeking rule 23B remand must meet several requirements: (1) it must be supported by affidavits alleging facts outside the existing record, (2) the alleged facts must be non-speculative, and (3) the alleged facts, if true, must establish both elements of a traditional ineffective-assistance claim, i.e., counsel's deficient performance and resulting prejudice. State v. Griffin , 2015 UT 18, ¶¶ 18–20, ––– P.3d ––––. But where a defendant's ineffective-assistance claim is based on trial counsel's alleged conflict of interest, the third requirement must be modified. Rather than establish deficient performance and resulting prejudice, the defendant must instead show that trial counsel was subject to a conflict of interest and that the conflict of interest adversely "affected the adequacy of his representation." See Mickens v. Taylor , 535 U.S. 162, 171–72, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) (citation and internal quotation marks omitted); see also Lafferty v. State , 2007 UT 73, ¶ 62, 175 P.3d 530 (explaining that a defendant "must show that an actual conflict of interest adversely affected his lawyer's performance" (citation and internal quotation marks omitted)).

¶15 Here, Defendant's motion is accompanied by several documents, including affidavits from himself and Cousin, a letter Cousin wrote to the judge in Cousin's case, and Cousin's statement in support of his guilty plea. Based on the facts alleged in these documents, Defendant suggests that Attorney may have made the decision not to call Cousin as a witness in Defendant's trial due to a...