MITCHELL (EDWARD JOSEPH) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: MARCH 5, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-002241-MR
EDWARD JOSEPH MITCHELL, JR.
v.
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 04-CR-000457-001
COMMONWEALTH OF KENTUCKY
AND
APPELLEE
NO. 2007-CA-002260-MR
EDWARD JEFFERSON MITCHELL, SR.
v.
APPELLANT
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 04-CR-000457-002
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: ACREE, KELLER, AND LAMBERT, JUDGES.
KELLER, JUDGE: Edward Jefferson Mitchell and Edward Joseph Mitchell (the
Appellants)1 appeal from an Opinion and Order of the Jefferson Circuit Court
denying their motions for post-conviction relief pursuant to Kentucky Rules of
Criminal Procedure (RCr) 11.42, following an evidentiary hearing. For the reasons
stated below, we reverse and remand.
FACTS
The Appellants were arrested and charged with one count of robbery
in the first degree and one count of assault in the first degree in Indictment No. 04CR-0457. After being arrested, Son confessed to committing the crimes and
indicated that he committed the offenses at the urging and planning of Father.
Specifically, Son made the following statements to the police.
On December 19, 2003, Son agreed, at Father’s urging, to go inside
Collett Auto Sales and rob Robert Collett (Collett). On that same day, Father gave
Son a BB gun that he cut off in order to make it look like a small rifle. Father also
bought a mask and sunglasses so that Collett would not recognize Son. Prior to
entering Collett Auto Sales, Son waited one or two streets away until Father called
him to tell him it was time to go into Collett Auto Sales. When Son went inside,
1
Due to the similarity in the Appellants’ names, we will refer to Edward Jefferson Mitchell as
“Father” and Edward Joseph Mitchell as “Son”.
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he asked Collett for his money. Instead of giving Son the money, Collett pulled
out a gun, which Son immediately knocked out of Collett’s hands. Collett then
began to choke Son and knocked Son to the floor. While on the ground, Son
grabbed something off the floor and hit Collett in the head. Son then took Collett’s
wallet, ring, necklace, watch, and gun and ran back to Father’s car. Thereafter,
Father took Son to his grandmother’s house and told Son to take off his clothes and
get in the shower. Father then took Son’s clothes, which was the last time Son saw
the clothes he was wearing that day. Additionally, Father took Collett’s ring and
wallet and left Son with the gun, watch, and necklace.
Although Son made the above-mentioned confession to the police,
Father at all times denied that he was involved. Rob Guarnieri (Guarnieri) was
appointed to represent Father, while Carolyn McMeans (McMeans) was appointed
to represent Son. Both attorneys were employed by the Jefferson County Public
Defender’s Office. At the January 16, 2004, probable cause hearing held in
Jefferson District Court, Guarnieri and McMeans filed a waiver of dual
representation form on behalf of each of the Appellants. At the Appellants’
arraignment on February 16, 2004, in Jefferson Circuit Court, Guarnieri and
McMeans again filed a waiver of dual representation form on behalf of each of the
Appellants.
Subsequently, Son filed a motion to suppress the statement he made to
the investigating police officers on the ground that it had been coerced. The trial
court held a suppression hearing on December 17, 2004, and entered an order
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denying son’s motion. On January 27, 2005, Son filed a motion for a separate trial.
Because Son ultimately pled guilty, it appears from the record that the trial court
never ruled on Son’s motion for a separate trial.
On February 15, 2005, Son entered a guilty plea to one count of
robbery in the second degree and one count of assault in the second degree
pursuant to a negotiated, written plea agreement. A condition of the guilty plea
agreement required Son to testify, consistent with his post-arrest statement, against
Father. Son was sentenced to ten-years’ imprisonment on each count, with the
terms to be served consecutively. Thereafter, Father entered a plea of guilty on
April 14, 2005, to one count of robbery in the second degree and to one count of
assault in the second degree. Father was sentenced to six-years’ imprisonment on
each count, with the sentences to run concurrently but to be served consecutively
with a previous five-year sentence.
On February 7, 2007, through retained and separate counsel, the
Appellants filed RCr 11.42 motions alleging that they received ineffective
assistance of counsel because they were both represented by attorneys from the
Jefferson County Public Defender’s Office. An evidentiary hearing on the
Appellants’ motions was held on September 10, 2007.
Both Appellants testified in support of their motions at the evidentiary
hearing. Both Father and Son verified their signatures on the waiver of dual
representation forms. However, Father stated that he did not have any
conversations or discussion with his attorney regarding the implications of the
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waivers. He stated that it was his understanding that he simply needed to sign
them in order to have representation through the Jefferson County Public
Defender’s Office. He stated that he was unaware of any potential conflict and did
not know that he could have another attorney. Son stated that he did not recall
signing the forms. Additionally, Son stated that he did not have a discussion with
McMeans regarding his right to have counsel outside of the Jefferson County
Public Defender’s Office.
On October 3, 2007, the trial court entered an Opinion and Order
denying the Appellants’ motions. 2 This appeal followed.
STANDARD OF REVIEW
Because the Appellants’ claims of ineffective assistance of counsel
are based upon a conflict of interest, a different standard is used than the general
standard applicable to a typical ineffectiveness claim. The United States Supreme
Court set forth the standard for reviewing conflict of interest cases in Cuyler v.
Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980), and summarized
it again in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), as follows:
In Cuyler . . . the Court held that prejudice is presumed
when counsel is burdened by an actual conflict of
2
The Opinion and Order entered by the trial court on October 3, 2007, not only references the
Appellants’ 04-CR-0457 convictions but also the Appellants’ 03-CR-3119 convictions.
However, neither the Appellants nor the Commonwealth address the 03-CR-3119 convictions in
the arguments contained in their briefs. Having reviewed the record, including the Appellants’
notices of appeal, we find no evidence that the 03-CR-3119 convictions are being contested at
this time. Accordingly, we conclude that the Appellants are precluded from appealing issues not
addressed in their brief to this Court. Therefore, we will address only the portion of the trial
court’s Opinion and Order pertaining to the Appellants’ 04-CR-0457 convictions.
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interest. In those circumstances, counsel breaches the
duty of loyalty, perhaps the most basic of counsel's
duties. Moreover, it is difficult to measure the precise
effect on the defense of representation corrupted by
conflicting interests. Given the obligation of counsel to
avoid conflicts of interest and the ability of trial courts to
make early inquiry in certain situations likely to give rise
to conflicts . . . it is reasonable for the criminal justice
system to maintain a fairly rigid rule of presumed
prejudice for conflicts of interest. Even so, the rule is not
quite the per se rule of prejudice that exists for the Sixth
Amendment claims mentioned above. Prejudice is
presumed only if the defendant demonstrates that counsel
“actively represented conflicting interests” and that “an
actual conflict of interest adversely affected his lawyer's
performance.”
(Emphasis added). Thus, we must determine whether trial counsel actually
represented conflicting interests, and if so, whether the conflict adversely affected
trial counsel’s performance.
However, when a movant has pled guilty, this test is slightly modified.
“[I]n order to successfully assert a claim of ineffective counsel based on a conflict
of interest, a defendant who entered a guilty plea must establish: (1) that there was
an actual conflict of interest; and (2) that the conflict adversely affected the
voluntary nature of the guilty plea entered by the defendant.” Thomas v. Foltz, 818
F.2d 476, 480 (6th Cir. 1987) (citation and footnote omitted).
ANAYLSIS
The Appellants contend that they received ineffective assistance of
counsel because they were both represented by attorneys from the Jefferson
County Public Defender’s Office, which resulted in a conflict of interest. The
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Appellants further argue that because they were never advised by the trial judge of
their right to conflict-free counsel as required by RCr 8.30, they did not waive that
right.
At the outset, we note that the Commonwealth asserts that the
Appellants failed to produce a complete record and that such failure precludes
appellate review. As correctly noted by the Commonwealth, it is the Appellants’
responsibility to present a complete record for review. Steel Technologies, Inc. v.
Congleton, 234 S.W.3d 920, 926 (Ky. 2007). The general rule is that “when the
record is incomplete, this Court must assume that the omitted record supports the
trial court.” Chestnut v. Commonwealth, 250 S.W.3d 288, 303 (Ky. 2008).
After receiving the original record on appeal, the Commonwealth
discovered that the record was incomplete, the pages were out of order, and the
video record transmitted did not contain the proceedings as designated or as
certified. Thus, on February 25, 2009, the Commonwealth filed a Motion to
Correct the Record. This Court subsequently entered an order on March 23, 2009,
ordering the Jefferson Circuit Court Clerk, with the assistance of the Appellants, to
accurately certify and transmit the record as designated. On July 13, 2009, the
Jefferson Circuit Clerk filed a Re-Certification of Record on Appeal. The
Commonwealth contends that the record is still incomplete because the video
record only contains the September 10, 2007, evidentiary hearing and does not
include the guilty pleas, arraignments, or any pretrial hearings. The
Commonwealth asserts that because the record is incomplete, there is no way of
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determining whether the trial judge advised the Appellants of their right to
conflict-free counsel in compliance with RCr 8.30. 3
However, our review of the record reveals that at the September 10,
2007, evidentiary hearing, the Commonwealth conceded that the trial judge did not
conduct a colloquy with the Appellants regarding their waiver of dual
representation similar to a plea of guilty pursuant to Boykin v. Alabama, 395 U.S.
238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Instead, the Commonwealth agreed
that the only inquiry that took place was the following discussion between defense
counsel and the trial court at the December 17, 2004, suppression hearing:
The Court: Okay, do we have a trial date?
McMeans: Yes we do, February 15.
The Court: Okay do we have waivers of dual
representation? I was trying to look
through
-McMeans: Yes we do. I know we’ve done them at least
once um
The Court: Once is all we need. Mr. Guarnieri, do you
remember?
Guarnieri:
the
Judge to be honest with you I thought we
may have but if not I’ll file one with
court.
McMeans: We could’ve done them in district court – I
believe.
3
During oral arguments to this Court, there was an issue raised as to whether the record on
appeal included the January 16, 2004, probable cause hearing held in the Jefferson District
Court. The record did include an audio tape of the probable cause hearing, and a review of that
hearing reflects that the trial judge did not advise the Appellants of their right to conflict-free
counsel.
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Guarnieri:
That’s right.
McMeans: We filled them out in the district court and
they may still be in the district court
file.
Guarnieri:
I’ll file one in circuit court as well just to
make sure that’s not a problem. I
have
advised Mr. Mitchell . . . of a
potential
conflict and at this time he
agreed with me
to execute a waiver and
is satisfied going
forward with the Public
Defender’s Office
whereby a potential
conflict may exist. And
at this time, if we haven’t
filed one I will
submit one in the next
several days.
McMeans: And Edward Joseph Mitchell is in the same
position. We’ve discussed at length
and I do
recall we signed one and went
through it. It
may be in the circuit
court 13 file too.
The Court: Okay. Let’s just make sure this record
contains two waivers.
Because the Commonwealth conceded that this was the only inquiry the trial judge
made, we conclude the record contains all the information needed to determine
whether the trial judge advised the Appellants of their right to conflict-free counsel
in compliance with RCr 8.30. Therefore, we will address the issues raised by the
Appellants.
The Appellants argue that they received ineffective assistance of
counsel because their attorneys were both employed by the Jefferson County
Public Defender’s Office. As a result, Appellants contend that their counsel was
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laboring under a conflict of interest which resulted in deficient representation. RCr
8.30 directly addresses the issue of an attorney’s representation of multiple codefendants. Further, the requirements of RCr 8.30 are implicated in cases where
co-defendants are represented by attorneys from the same public defender’s office.
Kirkland v. Commonwealth, 53 S.W.3d 71 (Ky. 2001).
RCr 8.30 prohibits dual representation of persons charged with the
same offense unless:
(a) the judge of the court in which the proceeding is
being held explains to the defendant or defendants the
possibility of a conflict of interests on the part of the
attorney in that what may be or seem to be in the best
interests of one client may not be in the best interests of
another, and
(b) each defendant in the proceeding executes and causes
to be entered in the record a statement that the possibility
of a conflict of interests on the part of the attorney has
been explained to the defendant by the court and that the
defendant nevertheless desires to be represented by the
same attorney.
In addition to the duties imposed upon the trial court, RCr 8.30(3) also imposes the
following duties on counsel:
Upon receipt of any information reasonably suggesting
that what is best for one client may not be best for
another, counsel shall explain its significance to the
defendant and disclose it to the court, and shall withdraw
as counsel for one client or the other unless
(a) each such client who is a defendant in the proceeding
executes a written waiver setting forth the circumstances
and reiterating the client’s desire for continued
representation by the same counsel and
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(b) such waiver is entered in the record of the proceeding.
As with the waiver of other constitutional rights, the waiver of the
right to conflict-free counsel should appear on the record as the “intentional
relinquishment or abandonment of a known right.” United States v. Osborne, 402
F.3d 626, 630 (6th Cir. 2005) (internal quotations omitted). As noted by the
Supreme Court of Kentucky in Brewer v. Commonwealth, 206 S.W.3d 313, 322
(Ky. 2006), “an accused ‘must’ be able to waive the problem of dual representation
so long as the waiver is done ‘knowingly.’” (quoting Brock v. Commonwealth, 627
S.W.2d 42, 44 (Ky. App. 1981)). However, the trial courts “should all but insist on
separate counsel, especially where counsel is appointed.” Id.
As discussed above, the only inquiry made by the trial court in this
case with respect to the Appellants’ right to conflict-free counsel was the
discussion between defense counsel and the trial court at the December 17, 2004,
suppression hearing transcribed above. Although it appears that the trial court was
aware of the potential conflict, it is clear from the record that the trial court did not
comply with its obligation to inform the Appellants of the potential consequences
of dual representation as required by RCr 8.30(1)(a).
Moreover, it appears that RCr 8.30(1)(b) was also not complied with
in this case. As noted by the Supreme Court of Kentucky in Brewer, 8.30(1)(b)
requires the defendant to execute a waiver “indicating that the possibility and
problems of conflicts of interest have been explained to him by the court and that
he nevertheless desires to be represented by the same attorney.” 206 S.W.3d at
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322 (quoting Brock, 627 S.W.2d at 44)(emphasis added). The trial court record
contains the following “Waiver of Dual or Multiple Representation” executed by
the Appellants:
The undersigned, Edward Jefferson Mitchell, a defendant
before this Court charged with the offense(s) of Robbery
I and Assault I, acknowledges that the undersigned
attorney has explained and that he/she understands the
possibility of a conflict of interests on the part of the
assigned attorney, Rob Guarnieri, that what may be or
seem to be in the best interests of this defendant may not
be to the best interest of a codefendant, who is also
represented by a Louisville Metro Public Defender. With
that understanding, the undersigned nonetheless desires
that Rob Guarnieri represent him/her in this proceeding
and has no objection to another Louisville Metro Public
Defender acting as counsel for the other person
mentioned in this waiver as being involved as a possible
conflict of interest.4
Nowhere in the waiver does language exist indicating that the trial court explained
to the Appellants the potential ramifications of conflicts of interest. Thus, the
waiver signed by the Appellants also did not comply with RCr 8.30.
We conclude that trial counsel did err by undertaking dual
representation without compliance with RCr 8.30. Under RCr 8.30, the Appellants
should have been advised by the trial court of the potential consequences of the
trial counsel’s dual representation, and it was incumbent upon trial counsel to
assure that the trial court complied with the rule.
4
The same language is provided in the waiver signed by Edward Joseph Mitchell, except
“Edward Joseph Mitchell” appears in all places where “Edward Jefferson Mitchell” is provided
and “Carolyn McMeans” appears in all places where “Rob Guarnieri” is provided.
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However, even where, as here, RCr 8.30 is not complied with, the
defendant is not automatically entitled to post-conviction relief. As noted in
Kirkland, failure to comply with the requirements of RCr 8.30(1) is “not
presumptively prejudicial and does not warrant automatic reversal.” 53 S.W.3d at
75. “A defendant must show a real conflict of interest . . . .” Id. See also Sullivan,
446 U.S. 335, 100 S. Ct. 1708 (a defendant must show an actual conflict of interest
adversely affected the performance of his lawyer). An alleged violation of RCr
8.30 simply opens the door for a case-by-case evaluation to determine whether a
defendant was in fact prejudiced by such a violation. Id.
In support of their claim of an alleged conflict and a consequent
prejudice, the Appellants contend that there was an actual conflict because Son
gave a post-arrest confession implicating Father. Moreover, Son entered a guilty
plea pursuant to a negotiated, written plea agreement in which he agreed to testify
against Father. At all times prior to entering his guilty plea, Father maintained that
he was innocent of the crime. Father now contends that he only pled guilty
because Son had agreed to testify against him.
The Appellants rely on Commonwealth v. Holder, 705 S.W.2d 907
(Ky. 1986), in support of their argument that there was an actual conflict and that
they were prejudiced by such a conflict. In Holder, three criminal co-defendants
were represented by one attorney. One of the co-defendants, Holder, made an outof-court statement admitting his guilt and implicating the other two defendants,
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who maintained their innocence. In concluding that there is a “built-in conflict of
interest” in such a situation, the Supreme Court of Kentucky noted that:
Separate counsel would likely have explored the potential
for a plea bargain for Holder based upon his plea of
guilty and his agreement to testify against the other two
respondents, whereas counsel in a joint representation of
all three respondents could not ethically seek advantage
for one at the expense of the other two.
Id. at 908. Therefore, the Supreme Court held that:
When, as here, the trial court failed to comply with the
simple requirements of RCr 8.30 and when, as here, the
record demonstrates a conflict of interest between the
respondents which could well have prejudiced the
disposition of their cases, the judgment of conviction
must be set aside.
Id. at 909. Thus, the Supreme Court affirmed this Court’s decision to set aside the
convictions of all three defendants. Id.
We find Holder to be factually similar to the instant case. As in
Holder, an actual conflict of interest arose when Son gave his post-arrest statement
implicating Father and Father maintained his complete innocence. As a result of
such conflict, what happened in this case is the exact scenario the Supreme Court
warned against in Holder. Here, Son’s plea bargain involved his agreement to
testify against Father. As noted in Holder, when negotiating a plea agreement,
counsel in a joint representation of more than one defendant cannot “ethically seek
advantage for one at the expense of the other . . . .” 705 S.W.2d at 908. Thus,
counsel in the instant case could not negotiate a plea bargain for Son based upon
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his agreement to testify against Father. Therefore, based on Holder, there was an
actual conflict of interest which prejudiced the disposition of the Appellants’ cases.
The Commonwealth cites Kirkland, 53 S.W.3d 71, in support of its
position that there was not a conflict. In Kirkland, two co-defendants, Kirkland
and McKee, were convicted of murder and robbery in the first degree for robbing
and killing the owner of a liquor store. Id. at 73. During their joint trial, Kirkland
testified that he shot the liquor store owner, claiming that McKee had only
accompanied him to the store. Id.
On appeal, McKee argued that the trial judge committed reversible
error when she did not instruct him pursuant to RCr 8.30(1) about a possible
conflict of interest because his counsel and Kirkland’s counsel were both employed
by the Fayette County Legal Aid, Inc. Id. at 74. In concluding that there was not a
conflict of interest, the Supreme Court noted that Kirkland admitted he was the
shooter and Kirkland’s testimony regarding McKee’s involvement consisted of
nothing more than what McKee had already told his girlfriend and confessed to the
police, i.e., that he accompanied Kirkland to the liquor store. Id. at 75. Because
Kirkland never contended that McKee was the one who shot the victim, no
antagonistic defenses were comprised. Id. Thus, the Supreme Court concluded that
the trial judge’s failure to comply with RCr 8.30(1) was harmless error. Id.
Unlike in Kirkland, there was an actual conflict in this case. While
the co-defendants in Kirkland made consistent statements, the statements made by
the Appellants in this case were inconsistent. Specifically, Son confessed that he
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committed the robbery and assault but that he did it at the direction and planning of
Father. However, Father maintained that he was innocent and that he was not
involved. Because the Appellants made conflicting statements resulting in an
actual conflict, we find Kirkland to be unpersuasive.
Accordingly, we reverse the order denying the Appellants’ RCr 11.42
motions and remand this case to the Jefferson Circuit Court for a new trial with
directions that new counsel be appointed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
David S. Mejia
Louisville, Kentucky
Jack Conway
Attorney General
ORAL ARGUMENT FOR
APPELLANT EDWARD JOSEPH
MITCHELL, JR.:
Christian K. R. Miller
Assistant Attorney General
Frankfort, Kentucky
Darren C. Wolff
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLEE:
ORAL ARGUMENT FOR
APPELLANT EDWARD
JEFFERSON MITCHELL, SR.:
Christian K. R. Miller
Frankfort, Kentucky
David S. Mejia
Louisville, Kentucky
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