2007 Ohio 1525 | Ohio Ct. App. | 2007
{¶ 2} Appellant, Dalia Garcia, was indicted on three counts: Counts I and II, selling a controlled substance, in violation of R.C.
{¶ 3} On September 19, 2005, two days before his trial was to begin, appellant's husband notified the court that he had terminated his court appointed counsel, and hired Thomas Nicholson. On September 20, 2005, the court conducted a hearing as to appellant's and her husband's counsels' motions to withdraw and waiver of conflict. After inquiring of the parties, the trial court granted the motions to withdraw and the entry of appearance of Nicholson as the attorney for both parties.
{¶ 4} On November 1, 2005, evidence was presented at appellant's jury trial. The jury ultimately found her guilty on all three counts. Appellant was sentenced to three years incarceration on each of Counts I and II, and eight years mandatory incarceration on Count III, with all sentences to run concurrently. *3
{¶ 5} Appellant now appeals from that judgment, arguing the following four assignments of error:
{¶ 6} "Assignment of Error No. I:
{¶ 7} "Appellant was irrevocably denied her
{¶ 8} "Assignment of Error No. II:
{¶ 9} "Appellant was irrevocably denied her
{¶ 10} "Assignment of Error No. III:
{¶ 11} "Appellant was irrevocably denied her
{¶ 12} "Assignment of Error No. IV:
{¶ 13} "Appellant's purported waiver of conflict-free dual representation without detailed judicial inquiry requiring narrative responses from appellant and dual representative counsel was not a knowing, intelligent, and voluntary waiver, in violation of appellant's right to due process of law under the U.S. Constitution." *4
{¶ 15} "Where there is a right to counsel, the
{¶ 16} When a party alerts the court to a potential conflict of interest, the trial court then has a duty to inquire whether a conflict actually exists. State v. Gillard (1992),
{¶ 17} In this case, the basic issues are, first, whether the trial court made adequate inquiry after being apprised of the potential for conflict and, second, whether appellant *5 understood her rights and voluntarily, knowingly and intelligently waived them. The record shows that the court was aware of and did, in fact, inquire of appellant to determine whether she understood her rights and the potential for conflict of interest in having the same attorney as her husband. When discussing the conflict issues, the court questioned each of the defendants and addressed the inherent difficulties in multiple representation. The record indicates that appellant voluntarily, knowingly, and intelligently waived the conflict issue, both in open court and in writing.
{¶ 18} Appellant suggests that the colloquy with the court was not meaningful, that she did not understand, or that she waived her rights while under some form of duress. While we are mindful that coercion in such circumstances may occur, nothing in the record itself suggests that appellant did not understand the import of her actions or that she was under duress. Any coercion that may have taken place outside the record is a potential matter for post conviction relief, and may not be addressed on direct appeal. Therefore, we conclude that appellant's waiver of the potential for conflict was properly accepted by the trial court.
{¶ 19} Appellant's fourth assignment of error is not well-taken.
{¶ 21} In order to establish a violation of the
{¶ 22} A possible conflict of interest exists where the interests of the defendants may diverge at some point, so as to place the attorney under inconsistent duties, but an actual conflict of interest is shown where during the course of the representation the defendants' interests do diverge with respect to a material factual or legal issue or to a course of action. Gillard, supra, at 552-553. In order to demonstrate an actual conflict of interest based upon what an attorney has failed to do, a defendant must demonstrate that some plausible alternative defense strategy or tactic that has sufficient substance to be at least viable might have been pursued but was not undertaken due to the attorney's conflicting loyalties or interests. Gillard, supra, at 553. However, "[t]here is no conflict where the two defenses did not result in one [defendant's] assigning blame to the other *7 and where both defendants had a common interest in attacking the credibility of the prosecution witnesses." Manross, supra, at 182.
{¶ 23} On the issue of counsel's effectiveness, the appellant has the burden of proof, since in Ohio a properly licensed attorney is presumably competent. See Vaughn v. Maxwell (1965),
{¶ 24} Moreover, in addition to showing that her counsel was rendered ineffective by the alleged conflict of interest, appellant must also demonstrate that she was thereby prejudiced. See State v. Bradley
(1989),
{¶ 25} In this case, although a potential for conflict may have existed, appellant has not demonstrated that any actual conflict arose. Appellant contends that an inherent "conflict" interfered with her representation during trial and the possibility of a plea agreements. We can find nothing in the record to support this contention.
{¶ 26} Prior to the dual representation, while appellant was still represented by separate counsel, the "package deal" offered to appellant was contingent upon her husband also accepting his "deal." Since her husband was not willing to plead and take the plea agreement offered, even if appellant had kept her separate counsel, she could not have taken advantage of the deal originally offered to her and the possibility of a reduced *8 sentence. No further plea agreements were offered during trial and her husband did not testify against her. Furthermore, nothing in the record indicates that appellant's counsel failed to pursue a defense or line of questioning because of the dual representation.
{¶ 27} Although we acknowledge that dual representation may often not be in the parties' best interests, we cannot say that anything in the record indicates appellant's conviction stemmed from a conflict of interest. Rather, the conviction was based upon overwhelming evidence presented that appellant had an active part in possession of and selling marijuana.
{¶ 28} Appellant also contends that her lawyer should have been required to demonstrate on the record that he had explained the potential for conflict to her. No such requirement exists, however, especially where the trial court recognizes and inquires about the potential for conflict and the defendant waives any conflict. Thus, even presuming that appellant could demonstrate that counsel's representation was ineffective, appellant has failed to show any prejudice, since nothing in the record indicates that an actual conflict arose during appellant's trial. Therefore, we conclude that appellant was not deprived of her constitutional right to effective assistance of counsel either at trial or for the purposes of obtaining a plea agreement.
{¶ 29} Accordingly, appellant's first, second, and third assignments of error are not well-taken.
{¶ 30} The judgment of the Huron County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for *9 the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Huron County.
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, P.J., William J. Skow, J., George M. Glasser, J., CONCUR.
Judge George M. Glasser, retired, sitting by assignment of the Chief Justice of the Supreme Court of Ohio. *1