Three men, one of whom wore a ski mask and had a shotgun, accosted several patrons in a restaurant parking lot and robbed one of them. After a car matching the description of the get-away vehicle evaded a police roadblock, the three occupants fled and discarded a backpack. In the abandoned backpack, the offiсers found a ski mask and a shotgun. The police found Frederick Ellis, Robert Callahan and Thomas Rollins hiding in the vicinity, and arrested them. The grand jury indicted them for four offenses all arising out of the incident in the restaurant parking lot. An eyewitness identified Rollins, but there was no positive identification of Ellis or Callahan. Those two maintained that they had been in the car during the robberies and that two other unidеntified men committed the crimes with Rollins. When Callahan hired Linda Lyons as his defense counsel, he asked her if she would also represent Ellis. Ms. Lyons agreed to do so, and she served as the attorney for both at the preliminary hearing and during pretrial proceedings. A month before the trial, Ellis told Ms. Lyons for the first time that he was shown the shotgun and was asked to participate in the robberies, but thаt he refused to do so. Believing that this version of the events might compromise Ellis’ ability to corroborate Callahan’s claim of mere innocent presence at the scene of the crime, Ms. Lyons advised both of her clients that she could not represent either of them if the case went to trial. She then arranged for two other attorneys to undertake to defend Ellis and Cаllahan in the event they decided to go to trial. Thereafter, Ms. Lyons counseled the two separately about the option of entering an
*764
Alford
guilty plea. See
North Carolina v. Alford,
Subsequently, Ellis filed a motion to withdraw his guilty plea, contending that he was denied effective assistance of counsel. According tо Ellis, Ms. Lyons was ineffective because she continued to represent both him and Callahan despite an alleged conflict of interest between the two, and also because she fаiled to provide him with accurate information regarding the adverse parole consequences of pleading guilty. The trial court denied the motions to withdraw and, on appeal, the Court of Appeals affirmed.
Ellis v. State,
1. To prevail on his ineffective assistance of counsel claim, Ellis must show that his lawyer’s performance was deficient and that, but for her errors, there is a reasonable probability he would have insisted on going to trial.
Hill v. Lockhart,
Contrary to the import of the holding of the Court of Appeals, an appellate decision is not always limited to prospective application simply because it overrules clear past precedent. Instead, the general rule is that the overruling decision
“ ‘is retrospective and makes the law at the time of the over *765 ruled decision as it is declared to be in the last decision. The overruled decision as a precedent is thereby destroyed, but it remains the law of the particular case in which it was rendered.’ [Cit.]”
Walker v. Walker,
Among the circumstances to be taken into accоunt is whether a retroactive application would result in an injustice or hardship to those who justifiably relied upon the prior rule. Flewellen v. Atlanta Cas. Co., supra at 712 (3); Walker v. Walker, supra at 503. In this regard, it is undisputed that Ellis did not rely on Hutchison when he pled guilty. Instead, exactly as the habeas petitioner in Williams v. Duffy, Ellis only cites Hutchison as supporting authority for the contention on appeal that his trial lawyer was ineffective. Application of the new rule did not wоrk an injustice or hardship in Williams v. Duffy and does not in this case, since the criminal defendant in neither has a valid vested interest in Hutchison’s erroneous holding that defense counsel must provide information regarding thе collateral parole consequences of entering a guilty plea.
Because it applies retroactively here, Williams v. Duffy compels a holding that Ms. Lyons was not ineffective simply because she allegedly failed to provide Ellis with information concerning his parole eligibility.
2. However, we must still decide whether Ellis has shown that his right to effective assistance of counsel was violated by Ms. Lyons’ joint representation of Ellis аnd Callahan. “[I]t is settled that ‘requiring or permitting a single attorney to represent codefendants, often referred to as joint representation, is not per se violative of constitutional guarantees of effective assistance of counsel.’ [Cit.]”
Burger v. Kemp,
*766
Proof that Ms. Lyons had an actual conflict of interest in the dual representation of Ellis and Callahan would be a sufficient showing as to the first prong.
Fogarty v. State,
Because his attorney had an actual conflict of interest, Ellis need' only further show that the conflict adversely affected her performance.
Burger v. Kemp,
supra at 783 (III);
Tarwater v. State,
In urging that the dual representation had an adverse effect on Ms. Lyons’ representation of him, Ellis points to the fact that she did not suggest that he cooperate with the State and agree to testify against Callahan. Ms. Lyons admits that she did not ask Ellis if he would be willing to assist the proseсution by testifying against Callahan in order “to get a better deal.” Because the evidence of Ellis’ guilt was somewhat weaker, the State might well have bargained for his testimony against Callahan. Previously, we have recognized that an actual conflict of interest adversely affected the attorney’s performance where counsel failed “to pursue an alternativе defense theory that is more favorable to one defendant but which would have prejudiced a co-defendant by shifting blame to him. . . . [Cit.]” Meyers v. State, supra at 150 (2). Likewise, we now conclude that trial counsеl’s performance is adversely affected by an actual conflict where, as here, there is a total failure to pursue the possibility of a more *767 favorable plea bargain on behalf of one co-defendant in exchange for his testimony against the other. “In this case the actual conflict of interest is apparent as is the fact that the conflict аdversely affected counsel’s performance in defending [her] client. . . .” Meyers v. State, supra at 151 (2). Accordingly, the Court of Appeals erred in affirming the trial court’s denial of Ellis’ motion to withdraw his guilty plea.
Judgment reversed.