State v. Villarreal, 2011AP998–CR.
| Decision Date | 21 February 2013 |
| Docket Number | No. 2011AP998–CR.,2011AP998–CR. |
| Citation | 2013 WI App 33,828 N.W.2d 866,346 Wis.2d 690 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent. v. Jesus C. VILLARREAL, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HERE
On behalf of the defendant-appellant, the cause was submitted on the briefs of Joseph L. Sommers, Oregon.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Daniel J. O'Brien, assistant attorney general, and J.B. Van Hollen, attorney general.
Before LUNDSTEN, P.J., SHERMAN and REILLY, JJ.
[346 Wis.2d 692]¶ 1 Jesus C. Villarreal appeals a judgement of conviction for four counts of incest with a child and a subsequent order denying his motion for postconviction relief. Villarreal asserts five separate grounds upon appeal, including a claim that his trial attorney provided ineffective assistance of counsel due to an actual conflict of interest that adversely affected counsel's performance. Because we agree with Villarrealthat an actual conflict of interest adversely affected his trial counsel's performance, we reverse on that basis and, consequently, do not reach the other issues raised.
¶ 2 This case has a lengthy history. In March 2007, Villarreal was charged with four counts of incest with his biological daughter. The charges stemmed from sexual contacts that were alleged to have occurred between Villarreal and his daughter in 1996 and 1997, starting when the girl was sixteen years old. The case was tried to a jury in December 2008 and resulted in a hung jury and mistrial. During the 2008 trial, Villarreal's sister, Sara Villarreal, testified as a defense witness. The substance of her testimony, as relevant to this appeal, will be recounted later in this opinion.
¶ 3 Villarreal was tried a second time in June 2009. Villarreal's second trial resulted in a conviction on all four counts. Sara testified once again for the defense.
¶ 4 Prior to the second trial, Sara was accused of committing perjury during the first trial by the investigating officer in Villarreal's case. The attorney who represented Villarreal in both trials, Ronald Benavides, suggested that he should represent Sara in the perjury investigation. Sara agreed to engage Benavides as her attorney and paid him to do so.
¶ 5 After the second trial, Villarreal filed a motion for postconviction relief requesting a new trial. Villarreal claimed, in part, that he was denied effective assistance of counsel because of Benavides's conflict of interest arising from his dual representation of Villarreal and Sara. It was uncontested that Villarreal did not object and there was no attempt to obtain a waiver or other form of informed consent for the dual representation. As the prosecutor stated at the postconviction hearing:
[W]e all agree that there was no signed written waiver; that [Attorney Benavides] was indeed representing those two individuals. I think that there is an agreement that there was no substantial conversation with either the defendant or Sara that we're aware of in regard to a conflict of interest. There was clearly no waiver on the record in court.
¶ 6 The circuit court denied Villarreal's motion for a new trial. The court determined that there was no actual conflict of interest negatively affecting Benavides's representation of Villarreal. The court stated: “I do not find that Benavides took any action for the purpose of advancing Sara Villarreal's interest over Jesus Villarreal's interests.” Villarreal appeals. Additional facts will be discussed below as necessary.
¶ 7 Our review of a defendant's claim that he or she was denied effective assistance of counsel due to counsel's conflict of interest presents a mixed question of fact and law. State v. Love, 227 Wis.2d 60, 67, 594 N.W.2d 806 (1999). We will not overturn a circuit court's factual findings regarding the circumstances of the case and counsel's conduct and strategy unless those findings are clearly erroneous. Id. However, whether the facts establish a constitutional violation is a question of law which we review de novo. Id.
¶ 1 Jesus C. Villarreal appeals a judgment of conviction for four counts of incest with a child and a subsequent order denying his motion for postconviction relief. Villarreal asserts five separate grounds upon appeal, including a claim that his trial attorney provided ineffective assistance of counsel due to an actual conflict of interest that adversely affected counsel's performance. Because we agree with Villarreal that an actual conflict of interest adversely affected his trial counsel's performance, we reverse on that basis and, consequently, do not reach the other issues raised.
¶ 8 Following his conviction, but not before, Villarreal alleged that he was denied effective assistance of counsel because his trial counsel, Benavides, represented conflicting interests and the conflict had an adverse effect on Benavides's performance.1 When a defendant has not raised an objection at trial to an attorney's potential conflict of interest, the mere possibility of a conflict is not sufficient to establish a constitutional violation. Id. at 68, 594 N.W.2d 806. In such situations, to establish a constitutional violation the defendant must show that “ ‘an actual conflict of interest adversely affected his lawyer's performance.’ ” Id. (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)).
¶ 9 In this context, Wisconsin courts sometimes use the term “actual conflict” or “actual conflict of interest” as shorthand for the requirement that a defendant must show that a conflict of interest adversely affected his or her attorney's performance. Our supreme court in Love wrote:
In order to establish a Sixth Amendment violation on the basis of a conflict of interest, a defendant who did not raise an objection at trial must demonstrate by clear and convincing evidence that his or her counsel had an actual conflict of interest. Determining what constitutes an actual conflict of interest must be resolved by looking at the facts of the case. An actual conflict of interest exists when the defendant's attorney was actively representing a conflicting interest, so that the attorney's performance was adversely affected.
Id. at 71, 594 N.W.2d 806 (emphasis added). The court in Love further explained:
[I]n a post-conviction motion when no timely objection was made, “actual conflict of interest” cannot be neatly separated from performance, for it is difficult to draw a line between potential conflict and actual conflict without pointing to some deficiency in the attorney's performance either in what was done or in what was not done. Moreover, it is not satisfactory to condemn relationships which are labeled as “actual conflicts of interest,” then disregard them when they do not have any discernible effect on the case.
Id. at 71–72, 594 N.W.2d 806 (quoted sources omitted).
¶ 10 The “effect” that a defendant needs to show should not be confused with the normal ineffective assistance requirement of showing prejudice. In this context, the required “effect” is an effect on the attorney's performance, not a possible effect on the outcome of the proceeding. If a defendant demonstrates an actual conflict of interest that adversely affects his or her attorney's performance, prejudice is presumed. Id. at 71, 594 N.W.2d 806. “Counsel is considered per se ineffective once an actual conflict of interest [adversely affecting counsel's performance] has been shown.” Id. A defendant need not “prove that some kind of specific adverse effect or harm resulted from [the] conflict.” State v. Kaye, 106 Wis.2d 1, 8–9, 315 N.W.2d 337 (1982).2
[346 Wis.2d 698]¶ 11 Thus, the question here is whether Villarreal made a showing by clear and convincing evidence that Benavides was actively representing conflicting interests and, as a result, his representation of Villarreal was adversely affected. Accordingly, we turn our attention to the facts that Villarreal asserts make this showing.
¶ 12 The testimony of Sara Villarreal was a key part of Villarreal's defense at his first trial. Sara supplied motive evidence explaining why the alleged victim would falsely accuse Villarreal. Sara alleged that the victim told a non-sibling relative that, if they accused parents of sexually or emotionally abusing them, they could get money from the government. The following is the relevant portion of Sara's testimony at the first trial:
Q. Now, was there an occasion in February of 2006 where you were present with [the victim] and [female relative 1] where [the victim] was making a statement about getting a kind of benefit if one would accuse her father of sexual assault?
[objection, discussion and ruling omitted]
A. Yes. I was present there.
Q. When was that?
A. It was in February of 2006.
Q. Where was that?
A. It was at [the victim]'s apartment.
Q. And what was the occasion?
A. [The victim], [female relative 1] and [female relative 2] were all going to go out partying.
Q. Where were you all gonna go?
A. To the bars.
Q. And what was the specific statement?
A. I was playing with the baby and they were getting dressed, and I overheard that [the victim] said to [female relative 1] you know if we accuse our parents of ah, sexual or emotional problems, we can get money from the Social Security Administration.
Q. What was your reaction—again, not what did you say—what was your reaction.
A. I was stunned. I couldn't believe that they were talking like that.
Q. Not asking what you said, did you confront her with that; in other words, did you let her know what your reaction was?
A. Yeah, they saw the reaction in my face.
Q. At that point, what happened?
A. She went Oh, but we would never do that of course.
¶ 13 There is no dispute that it was important to Villarreal that Sara testify at the second trial consistently with the above testimony at the first trial. The problem we...
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...not raise an objection at trial, must show that "an actual conflict of interest adversely affected his lawyer’s performance." State v. Villarreal , 2013 WI App 33, ¶8, 346 Wis. 2d 690, 828 N.W.2d 866 (citation and two sets of quotation marks omitted).¶11 However, a defendant "who validly wa......