For example, although Elliot testified that he discussed the issue “at length” with Villanueva, the record demonstrates that these discussions focused on the possible ramifications of Elliot being disqualified; it does not appear that he advised Villanueva of the specific ways in which the defense might be limited by his prior representation of Garcia–Diaz. SeePeople v. Curren, 228 P.3d 253, 258 (Colo.App.2009) (“Once counsel is aware of an actual or potential conflict of interest, counsel must ... describe in plain terms the specific ways in which the conflict may affect counsel's ability to effectively represent the defendant.”)
¶ 7 On appeal, a division of this court affirmed the postconviction court's order granting a new trial. See People v. Curren, 228 P.3d 253, 257 (Colo.App.2009) (Curren II ). The mandate issued on April 23, 2010.
The court of appeals refused to consider this argument, holding instead that the People were “bound by [their] representation that [they] had actual notice of McKimmy's requests.” Id. at 11 (citing People v. Curren, 228 P.3d 253, 257 (Colo.App.2009)). Specifically, the response acknowledged that “the People received letters from the Defendant demanding compliance with the UMDDA” on November 19, 2007; March 6, 2008; and August 26, 2008.
The court of appeals refused to consider this argument, holding instead that the People were “bound by [their] representation that [they] had actual notice of McKimmy's requests.” Id. at 11 (citing People v. Curren, 228 P.3d 253, 257 (Colo.App.2009) ).We do not perceive appellate procedure to operate so rigidly. In citing Curren, the court of appeals impliedly equated the People's statement to a binding judicial admission, which Curren defined as “a formal, deliberate declaration that a party or his attorney makes in a judicial proceeding for the purpose of dispensing with proof of formal matters or of facts about which there is no real dispute.”
The court of appeals refused to consider this argument, holding instead that the People were "bound by [their] representation that [they] had actual notice of McKimmy's requests." Id. at 11 (citing People v. Curren, 228 P.3d 253, 257 (Colo. App. 2009)). Specifically, the response acknowledged that "the People received letters from the Defendant demanding compliance with the UMDDA" on November 19, 2007; March 6, 2008; and August 26, 2008.
But here, the potential conflict did not ripen into an actual conflict. See People v. Curren, 228 P.3d 253, 258 (Colo.App.2009) (an actual conflict of interest is one that is real and substantial, whereas a potential conflict of interest is one that is possible or nascent). Indeed, the firm and wife were aligned in resisting husband's attempt to garnish the unearned retainer. Moreover, wife waived any conflict. SeeColo. RPC 1.7(b); see also Curren, 228 P.3d at 258 (where the potential conflict is remote, waiver may not be required at all).
It was for the postconviction court to weigh the competing testimony. See People v. Curren, 228 P.3d 253, 258 (Colo. App. 2009). The postconviction court found that "the decision to call or not call character witnesses is a strategy decision within the hands of counsel."
Jennings argues that, because alternate defense counsel was not appointed, she was forced to proceed with conflicted counsel. But a defendant's right to conflict-free counsel is a subset of the right to effective assistance of counsel, see People v. Curren , 228 P.3d 253, 258 (Colo. App. 2009), and a guilty plea waives review of an ineffective assistance of counsel claim unless it relates directly to the adequacy of the plea itself, see Stovall , ¶¶ 16-17 ; see also State v. Villegas , 380 Wis.2d 246, 908 N.W.2d 198, 215 n.19 (Wis. Ct. App. 2018) (collecting cases supporting this proposition). To reiterate, Jennings does not contend that her guilty plea was invalid in that it was not knowingly, intelligently, and voluntarily made.
¶ 16 "An actual conflict of interest is one that is real and substantial, and adversely affects counsel's performance, while a potential conflict of interest is one that is possible or nascent, and in all probability will arise." People v. Curren , 228 P.3d 253, 258 (Colo. App. 2009). D. Analysis
However, the doctrine of judicial admission "has been applied in very limited contexts," none of which are present here. People v. McKimmy , 2014 CO 76, ¶ 17, 338 P.3d 333 (quoting People v. Curren , 228 P.3d 253, 257 (Colo. App. 2009) ). Furthermore, there is no indication that Wise extends beyond its narrow holding.