Opinion
No. 8118SC881
Filed 6 April 1982
Constitutional Law 48 — conflict of interest between defendant and attorney — ineffective assistance of counsel Defendant's constitutional right to the effective assistance of counsel was denied because of a conflict of interest between defendant and one of his two privately retained attorneys where the attorney knew that he was under investigation for his own participation in criminal conduct involving defendant, and defendant's plea of guilty to armed robbery was thus not knowingly and voluntarily made. G.S. 15A-1420, G.S. 15A-1442(5) and G.S. 15A-1443(b).
WRIT of certiorari granted to defendant from Seay, Judge. Judgment denying defendant's motion for appropriate relief entered 12 September 1979 in GUILFORD County Superior Court. Heard in the Court of Appeals 2 February 1982.
Attorney General Rufus L. Edmisten, by Assistant Attorney General Reginald L. Watkins, for the State.
Adam Stein, Appellate Defender, by Malcolm R. Hunter, Jr. and Lorinzo Joyner, Assistant Appellate Defenders, for defendant-appellant.
Judge MARTIN (Robert M.) dissenting.
Defendant was indicted on an armed robbery charge stemming from a 28 August 1974 robbery of a Bestway Supermarket. Defendant pleaded not guilty, and was brought to trial, represented by privately retained counsel Richard Dailey and Arthur Vann. After damaging testimony was given by an accomplice to the armed robbery, defendant's attorneys advised defendant to enter a guilty plea, which he did. Defendant was sentenced to 28 to 30 years imprisonment, the maximum punishment for armed robbery being 30 years. Shortly after defendant was sentenced, defendant's attorney Richard Dailey was indicted for felonious receiving of stolen goods, a crime which also involved defendant. In his application of post-conviction relief, defendant alleged that Dailey knew that the State was seeking defendant's testimony against Dailey, but that Dailey did not advise defendant, attorney Vann or the court of the conflict of interest inherent in these circumstances. On defendant's motion for appropriate relief, Judge Seay made findings of fact and entered a conclusion of law that no conflict of interest existed between defendant and his counsel, Richard Dailey, that attorney Vann's ignorance of the situation did not deprive defendant of effective assistance of counsel, and that defendant was accorded due process of law in the entire disposition of his case. Subsequent to Judge Seay's denial of relief, this Court allowed defendant's petition for a writ of certiorari.
Defendant contends that his constitutional right to effective assistance of counsel was denied because of the undisclosed conflict of interest existing between defendant and one of his attorneys, Richard Dailey. We agree, and award defendant a new trial.
A defendant is entitled to collaterally attack a judgment entered on his guilty plea, on the grounds that it was not voluntarily and knowingly given. Blackledge v. Allison, 431 U.S. 63, 52 L.Ed.2d 136, 97 S.Ct. 1621 (1977); G.S. 15A-1420(c); State v. Roberts, 41 N.C. App. 187, 254 S.E.2d 216 (1979). Where defendant alleges that ineffective assistance of counsel caused him to enter his guilty plea, an issue of constitutional rights arises, and the fact that defendant signed an agreement form does not bar his right to seek post-conviction relief. See State v. Roberts, supra, G.S. 15A-1420; G.S. 15A-1442(5); G.S. 15A-1443(b).
This case raises a question of conflict of interest rendering Dailey's representation of defendant ineffective; thus, cases discussing competency of representation are not apposite. See State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981), and cases cited therein. Although we are not aware of previous decisions involving a conflict such as the one under review here, several Supreme Court cases involving claims of ineffective assistance of counsel in the context of an attorney's multiple representation of co-defendants are instructive.
In Glasser v. U.S., 315 U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457 (1942), the Supreme Court reversed a defendant's conviction for conspiracy where defendant's attorney also represented a co-defendant, and the court was aware of a conflict, but refused to appoint another attorney. Defendant Glasser was able to show prejudice, in that his attorney was prevented from seeking to exclude incompetent evidence and from conducting more effective cross-examinations because of his dual representation. The Court stated, however:
To determine the precise degree of prejudice sustained by Glasser . . . is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.
Holloway v. Arkansas, 435 U.S. 475, 55 L.Ed.2d 426, 98 S.Ct. 1173 (1978) also involved multiple representation of co-defendants by one attorney in a single trial. As in Glasser, defendant Holloway's attorney was court-appointed, and the court knew of a conflict but refused to remedy it. With regard to the need of a defendant to show how he was specifically prejudiced by his counsel's conflicting interest, the Court stated:
But in a case of joint representation of conflicting interests the evil — it bears repeating — is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process. It may be possible in some cases to identify from the record the prejudice resulting from an attorney's failure to undertake certain trial tasks, but even with a record of the sentencing hearing available it would [ 435 U.S. 491] be difficult to judge intelligently the impact of a conflict on the attorney's representation of a client. And to assess the impact of a conflict of interests on the attorney's options, tactics, and decisions in plea negotiations would be virtually impossible. Thus, an inquiry into a claim of harmless error here would require, unlike most cases, unguided speculation.
In Cuyler v. Sullivan, 446 U.S. 335, 64 L.Ed.2d 333, 100 S.Ct. 1708 (1980) the Court reviewed Glasser and Holloway, stating:
Glasser established that unconstitutional multiple representation is never harmless error. Once the Court concluded that Glasser's lawyer had an actual conflict of interest, it refused "to indulge in nice calculations as to the amount of prejudice" attributable to the conflict. The conflict itself demonstrated a denial of the "right to have the effective assistance of counsel." 315 US, at 76, 86 L Ed 680, 62 S Ct 457. Thus, a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice [ 446 U.S. 350] in order to obtain relief. See Holloway, supra, at 487-491, 55 L Ed 2d 426, 98 S Ct 1173. But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance. See Glasser, supra, at 72-75, 86 L Ed 680, 62 S.Ct 457.
We hold that defendant's showing that Dailey was under investigation for his own participation in criminal conduct involving defendant, accompanied by Dailey's knowledge of these circumstances, established a conflict of interest between Dailey and defendant. It is therefore unnecessary for us to speculate as to whether or how much defendant may have been prejudiced by such a conflict. Prejudice in these circumstances must be conclusively presumed.
We hold that because defendant was denied effective assistance of counsel, his plea of guilty was not knowingly and voluntarily made. See Blackledge, supra, Roberts, supra. Defendant is therefore entitled to a
New trial.
Judge WEBB concurs.
Judge MARTIN (Robert M.) dissents.