Opinion
2 CA-CR 2021-0016-PR
08-20-2021
The State of Arizona, Respondent, v. Dora Celena Matias, Petitioner.
Brian M. McIntyre, Cochise County Attorney By Daniel H. Akers, Deputy County Attorney, Bisbee Counsel for Respondent Law Office of Paul S. Banales, Tucson By Paul S. Banales Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Cochise County No. S0200CR201700137 The Honorable James L. Conlogue, Judge
REVIEW GRANTED; RELIEF GRANTED COUNSEL
Brian M. McIntyre, Cochise County Attorney By Daniel H. Akers, Deputy County Attorney, Bisbee Counsel for Respondent
Law Office of Paul S. Banales, Tucson By Paul S. Banales Counsel for Petitioner
Presiding Judge Eppich authored the decision of the Court, in which Vice Chief Judge Staring concurred.
MEMORANDUM DECISION
EPPICH, PRESIDING JUDGE
¶1 Dora Matias seeks review of the trial court's ruling dismissing her petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. The overarching issue in her petition for review is whether the trial court erred by rejecting her claim that she received ineffective assistance of counsel based on a conflict of interest arising from her counsel's joint representation of her and her co-defendant, David Duffy- an issue she attempted to raise on appeal, but this court declined to address. State v. Matias, No. 2 CA-CR 2018-0073, ¶ 7 (Ariz. App. Mar. 25, 2019) (mem. decision). We suspended Matias's petition for review pending the Arizona Supreme Court's decision in Duffy's appeal. The supreme court granted Duffy a new trial based on the trial court's failure to conduct an inquiry to confirm he had knowingly and intelligently waived the right to conflict-free counsel. State v. Duffy, 251 Ariz. 140, ¶¶ 24-26 (2021).
¶2 This court ordered the state to respond to Matias's petition for review to address any implications of Duffy. In its response, the state conceded the trial court's ruling "should be reversed and this matter should be remanded for a new trial." In light of Duffy, we agree the ruling is erroneous insofar as the court determined that Matias had "waived any potential conflict of interest." In addition, the state agreed in Duffy that there was a conflict. See Duffy, 251 Ariz. 140, ¶ 25. We therefore accept the state's concession. Cf. In re Navajo Cnty. Juv. Action No . J-3206, 121 Ariz. 407, 408 (App. 1979) (in criminal or quasi-criminal cases, we may reverse without deciding merits where debatable issue is raised and state implicitly concedes error).
¶3 We grant review and relief. Matias's convictions and sentences are reversed, and the case is remanded to the trial court for further proceedings.
BREARCLIFFE, Judge, dissenting
¶4 I respectfully dissent because my colleagues do not properly evaluate Matias's conflicted-counsel claim and ignore the factual findings of the trial court. The majority simply relies on State v. Duffy, Matias's co-defendant's case, and the state's confession of error. But this case is not Duffy, and, regardless of the opinions of the state and the defendant, we should not find error if no error occurred. The court did not err and, unlike her co-defendant David Duffy, Matias is not entitled to a new trial.
Duffy is Procedurally Distinct and Lacked the Evidentiary Record
¶5 This case, unlike Duffy's, is not on direct appeal. We resolved Matias's direct appeal some months before we addressed Duffy's. Matias, No. 2 CA-CR 2018-0073, ¶¶ 5-10. In her appeal, Matias had raised the same arguments that Duffy would later raise. Specifically, she asserted "the trial court violated her constitutional right to counsel by allowing her attorney to represent both her and her co-defendant." Id. ¶ 1. She further argued that the error was the trial court's "because it 'never verified that the waiver of the conflict was knowing, intelligent, and voluntary.'" Id. ¶ 8. We affirmed her convictions, concluding that her claim needed to be raised in post-conviction relief proceedings. Id. ¶¶ 7, 16. Specifically, we stated that "any issue about why counsel did not pursue alternative defenses and whether she and Duffy signed a waiver of conflict are evidentiary issues that 'can only be developed at an evidentiary hearing in a post-conviction relief proceeding.'" Id. ¶ 7 (quoting State v. Tucker, 205 Ariz. 157, ¶ 26 (2003)). Matias did not seek supreme court review of that decision.
¶6 Because Matias did not seek supreme court review, our decision affirming her conviction was final and conclusive. See State v. Febles, 210 Ariz. 589, ¶ 9 (App. 2005) ("A conviction is final when 'a judgment of conviction has rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.'" (quoting State v. Towery, 204 Ariz. 386, ¶ 8 (2003))). That is, it was final and conclusive that the trial court was not required to engage in the colloquy she demanded and there was no impermissible conflict of interest justifying the vacating of her convictions. Because she did not seek supreme court review, Matias's only remaining remedy was to seek Rule 32 relief for all matters appropriately raised in a Rule 32 proceeding; namely, those claims that had not been and could not have been raised and resolved on appeal. Ariz. R. Crim. P. 32.1, 32.2(a).
¶7 In light of Duffy, we know that our decision on Matias's direct appeal was legally wrong. Had Matias's appeal followed the issuance of Duffy, rather than preceded it, we would have similarly vacated Matias's conviction and ordered a new trial. The majority seems to conclude that, because we now know we were wrong in denying Matias's appeal, we should correct it by giving her that same result now. But bestowing such a remedy in this proceeding is legally incorrect.
¶8 When Duffy was before both this court and our supreme court, it was on direct appeal. Both the majority of our court and the unanimous supreme court determined that the trial judge had erred by failing to engage in a colloquy with Duffy as to his counsel's conflict and any waiver of that conflict. Duffy, 251 Ariz. 140, ¶¶ 23-25; State v. Duffy, 247 Ariz. 537, ¶ 27 (App. 2019). Both courts recognized that joint representation is not a conflict per se or impermissible. Duffy, 251 Ariz. 140, ¶ 14; Duffy, 247 Ariz. 537, ¶ 29. Nonetheless, each concluded that, when a potential conflict is either apparent to the court or brought to its attention, a trial court must engage in a colloquy with the defendant to determine whether he has knowingly, intelligently, and voluntarily waived any potential conflict. Duffy, 251 Ariz. 140, ¶ 19; Duffy, 247 Ariz. 537, ¶ 16.
¶9 Our supreme court recognized, of course, that "a defendant may waive the Sixth Amendment right to conflict-free counsel," Duffy, 251 Ariz. 140, ¶ 15, so long as "he knows what he is doing and his choice is made with eyes open," id. (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)). But, "[b]ased on [the] record" before it, our supreme court could not "conclude that Duffy knowingly and intelligently waived the right to conflict-free counsel." Id. ¶ 24. Under the circumstances, the failure of the trial court to engage in the colloquy with Duffy and glean from him his knowing, intelligent, and voluntary waiver, "so thoroughly tainted the trial court proceedings" that it was constrained to "set aside the verdict and remand for a new trial." Id. ¶ 25. Notwithstanding the court's conclusion, it intimated that had the record otherwise reflected Duffy's knowing, intelligent, and voluntary waiver, it would not have found the failure to engage in a colloquy to be reversible error. Id. ¶ 24.
¶10 Given its procedural posture, Duffy's record on the relevant questions of conflict and waiver-beyond what was avowed to the trial court by counsel-was undeveloped. The evidentiary record here, however, is not undeveloped but rather complete. In all relevant respects, it is a very different case from Duffy and we should not disregard that distinction. Because this is not on direct appeal, but rather arises from a Rule 32 proceeding-during which an evidentiary hearing on the fact of conflict and existence and extent of any waiver was held-we must evaluate her claim under Rule 32 in light of that record.
This is not a doover of her appeal. Matias is not Entitled to Rule 32 Relief
¶11 As Matias asserts in her petition for review, she had argued in her Rule 32 petition that she was denied effective assistance of counsel due to a conflict of interest arising from joint representation of her and Duffy, by defense counsel Ivan Abrams and Nicholas Brereton. Matias also claims that she did not "knowingly, intelligently and voluntarily" waive the potential conflict. After additional briefing following the issuance of Duffy, the state now agrees there was a conflict of interest and acquiesces to the relief requested.
¶12 Whether Matias was denied effective assistance of counsel is a mixed question of fact and law. State v. Pandeli, 242 Ariz. 175, ¶ 4 (2017). In such cases, we defer to the trial court's findings of fact unless they are clearly erroneous. Id. ¶ 3. We ultimately review the court's ruling on a petition for post-conviction relief for an abuse of discretion. Id. ¶ 4.
¶13 "Joint representation does not, of itself, deny a defendant effective assistance of counsel. However, a conflict of interest arising from the joint representation may deny a defendant effective assistance of counsel." State v. Martinez-Serna, 166 Ariz. 423, 425 (1990) (citation omitted); see also Duffy, 251 Ariz. 140, ¶ 14. To establish a claim of ineffective assistance of counsel due to such a conflict, a defendant must show: (1) an actual conflicted existed and (2) the conflict had an adverse effect on the representation. Duffy, 251 Ariz. 140, ¶ 16; State v. Jenkins, 148 Ariz. 463, 466 (1986). To establish an actual conflict of interest, the
[defendant] must demonstrate that some plausible alternative defense strategy or tactic might have been pursued.... He need not show that the defense would necessarily have been successful if it had been used, but merely that it possessed sufficient substance to be a viable alternative. Second, he must establish that the alternative defense was inherently in conflict with the attorney's other loyalties or interests.Jenkins, 148 Ariz. 463, n.1 (quoting Brien v. United States, 695 F.2d 10, 15 (1st Cir. 1982)).
¶14 Matias argues that the trial court applied the wrong standard in determining whether she had proved an actual conflict existed. The court explained that Matias's loyalty to Duffy was such that the court did not believe she would take an adverse action against him, and thus "any alternative defense strategy is theoretical and in no way viable." Matias claims however that she "need not demonstrate that she would have in fact accepted a plea for her cooperation [to testify against Duffy] but only that it was counsel's obligation to explore such a possibility." (Emphasis added.) Thus, she asserts that an actual and adverse conflict existed here.
¶15 The evidence presented at the Rule 32 hearing was clear that Matias would never have entertained a plea requiring her to testify against Duffy, but that she could have if she wanted to, and she knew it. All she had to do was terminate her representation by Abrams and Brereton. But even though Matias was advised by Abrams to seek independent counsel, and did consult with independent counsel once she was so advised, she did not retain another attorney. The record shows that Matias all but directed Abrams not to pursue any plea negotiation that would have required her to betray her boyfriend. More so, it reveals that she had nothing to offer against Duffy even if she had wanted her counsel to seek such a deal. Consequently, there was neither a conflict between her counsel's strategy and tactics and her desired defense, nor an adverse effect on her defense.
¶16 At the evidentiary hearing, Abrams testified that he had spoken with Matias not just once but on multiple occasions about the conflicts that may be present in joint representation. This included a conflict that would arise if either she or Duffy wanted to "cut a deal" by testifying against the other. Abrams testified that, on one occasion, he specifically told Matias that if she wanted to negotiate a plea, and if that were what was best for her, then she would need to get a new attorney. She told him that she "would never do that. [She] d[oes']t have anything [she] could say against [Duffy]. [She] wouldn't do that." Abrams specifically talked with Matias about "cut[ting] a deal" that would "put [her] up against [Duffy]" where she would have to testify against him. When he did so, Matias became "very upset" and said she did not have anything against Duffy. Abrams stated that Matias was "emphatic" about going to trial as opposed to taking a plea. Abrams even discussed that the evidence showing her as more culpable than Duffy may be reason for her to want a separate trial, meaning separate counsel, but Matias essentially responded that she and Duffy were "joined at the hip."
¶17 Matias admitted that when she first met with Abrams, just as Abrams avowed to the court below before trial, she signed "[a waiver] that there was a possible conflict of interest." The waiver stated that Matias "[had] been advised of the possible conflicts of interests" and that she had "the right to be independently represented by counsel." Matias additionally admitted that, after Abrams advised her that she should seek separate counsel (ostensibly to pursue a plea agreement that would require her to testify against Duffy), she did consult with an independent lawyer. She did not, however, ultimately retain independent counsel, but rather she continued with her retained counsel. Despite her admission that she sought out separate counsel, Matias denied that Abrams ever fully informed her of a conflict.
Matias also claims that her written waiver was not made "knowingly, intelligently, and voluntarily" because the waiver she signed did not adequately inform her of the risks of joint representation. However, Matias does not cite to, and I found nothing, that requires a written waiver to contain all the potential conflicts that may arise in joint representation. All that is seemingly required is that the defendant be informed of the conflict and its consequences, and then accept the risk. See Duffy, 251 Ariz. 140, ¶ 15.
¶18 The trial court, based on the evidence presented at the hearing, determined that Abrams's testimony was "consistent with the entire record in this case." It further determined that Matias "had no information to offer the State in exchange for a more lenient plea offer." The court observed that Matias "was very protective of Mr. Duffy throughout the proceeding. She obviously had a close relationship with Mr. Duffy and would not hurt him for her own gain." Consequently, the court could not "believe that [Matias] would take any action adverse to Mr. Duffy." Indeed, the court recalled, at her sentencing, Matias had said, "if I could do both sentences and just have him go home, I would." Ultimately, the court stated:
Defendant's loyalty to Mr. Duffy was greater in kind and in degree than any obligation trial counsel had in representing him. It is clear to the Court that Defendant would not permit trial counsel to pursue any strategy adverse to Mr. Duffy. Under these circumstances, any alternative defense strategy is theoretical and in no way viable.
And it expressly found that Matias
waived all issues related to her chosen option of joint representation after having been fully informed of the limitations and potential conflicts of interest inherent in that arrangement. The Court further finds there was no plausible defense strategy which possessed sufficient substance to be a viable alternative and, therefore, there was no actual conflict.
Although there was conflicting testimony, the trial court was in the best position to resolve the conflicts based on its assessment of the witnesses' credibility. See State v. King, 250 Ariz. 433, ¶ 21 (App. 2021) ("We defer to the PCR court's credibility evaluations of witnesses who testified at the PCR hearing.").
¶19 The evidentiary record, which did not exist at the time of her direct appeal, supports the trial court's conclusion that Matias went to trial with her jointly retained counsel with her eyes open and seemingly for her own reasons. Matias had been advised of the potential conflict and knew she could seek separate counsel-and in fact did-and yet strategically rejected the opportunity to testify against Duffy and seek out a plea. As a result, she was unable to prove below that there was an actual conflict in trial strategy and goals, let alone any adverse effect on her defense, whether by failure of her counsel to explore a plea deal or otherwise. See State v. Padilla, 176 Ariz. 81, 84 (App. 1993) (finding absent other circumstances no adverse effect when defendant would not entertain plea); cf. Martinez-Serna, 166 Ariz. at 425 (finding adverse effect when "[c]ounsel's representation of both defendants . . . dictated counsel's decision to have petitioner testify and to present a united defense."). Matias is simply unable to prove any conflict that "reduced [her counsel's] effectiveness" and had a "substantially negative impact." Jenkins, 148 Ariz. at 467. Indeed, it seems to have had no impact at all. And the record clearly reflects that, having been advised of the risks of joint representation, Matias accepted that joint representation knowingly, voluntarily, and intelligently.
¶20 It is not enough to say that, because the trial court did not have the pre-trial colloquy with Matias, her conviction, like Duffy's, is tainted or suspect. The evidence presented at the Rule 32 hearing demonstrates that, had the court conducted a Duffy colloquy, it would have determined that Matias did knowingly, intelligently, and voluntarily waive the right to conflict-free counsel. All of the material information that might have been gleaned in a Duffy colloquy with Matias at the time of trial- indeed far more-was gleaned here in the evidentiary hearing. We have a factual record demonstrating the absence of a conflict, the lack of an adverse effect on Matias's defense, and the fact of her knowing, intelligent, and voluntary waiver of any conflict. The trial judge did not, based on this record, abuse his discretion in denying Matias relief.
State's Confession of Error
¶21 Finally, the majority makes much of the state's confession of error and agreement to the relief granted. But our job here is not to adopt either side's opinion of the trial court's work, but to evaluate the trial court's work ourselves. See State v. Solis, 236 Ariz. 242, ¶ 23 (App. 2014) ("[W]e are not bound by the state's concession [of error]."). We ought not say that the trial judge erred unless he did. If there was no error, there was no error, regardless of whether the parties agree that there was. Here, we have no basis to say that the court erred on Rule 32 or that Matias did not receive a fair trial as a consequence. Vacating convictions and ordering an unnecessary second trial, following a fair first trial, shows disrespect to the jury in that first trial and places an undue burden on the taxpayer. Matias, with full knowledge of her counsel's potential conflict and her eyes wide open, controlled her representation and persisted with her retained counsel. Simply put, in the end, she received the trial-albeit not the verdict-she wanted.
¶22 The only basis to have granted Matias a new trial on direct appeal would have been the absence of an evidentiary record demonstrating either no impermissible conflict or Matias's waiver of such a conflict. We have that record here showing both the lack of such a conflict and Matias's waiver of a potential conflict in any event. So, even if this were a reconsideration of her appeal by other means, we would have to affirm her conviction. Under all recognized standards of Rule 32 review, we should similarly deny relief, and so I respectfully dissent.