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.
Wells, Judge. Judge Webb concurs. Judge Martin (Robert M.) dissents.
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 Page 503} 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 tis 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 US 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 US 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
Judge Martin (Robert M.), dissenting.
The majority holds that because Petitioner was denied effective assistance of counsel his plea was not knowingly and voluntarily made and therefore he is entitled to a new trial. In my disagreement with this holding, I find it helpful to review the record in some depth which includes the trial transcript of the testimony of Allen Odell Smith.
Petitioner was charged by indictment in proper form with armed robbery. At the 1 December 1975 Session of Superior Court, Guilford County, the petitioner, Charles Loye, was brought to trial. He entered a plea of not guilty. The evidence showed that in gang-like style, the petitioner Loye and his confederates, with the use of a pistol and sawed-off shotgun, robbed Mr. Carlton P. Collins of $4,010.00.
Petitioner privately retained two experienced attorneys, Mr. Richard M. Dailey, Jr. and Mr. Arthur Vann, to represent him at his trial and they were heard at every stage of the proceedings. Both attorneys interposed numerous objections to the State's evidence. Mr. Arthur Vann, a lawyer of unquestioned competence, conducted a rigorous and rigid cross examination of the State's principal witness which consumed thirty-eight (38) pages of the record.
After two and one-half days of trial, the petitioner Loye entered a negotiated plea of guilty of armed robbery and by the terms of which the State dismissed eleven (11) felony cases pending against him, including conspiracy to commit murder against some of the State's witnesses.
The record contains the following pertinent excerpts taken from the transcript of plea filed December 4, 1975.
3. Have you had time to talk about your case with your lawyer and are you satisfied with his services? Answer Yes
5. Do you understand that you are charged with the (felony) ( misdemeanor ) of Armed Robbery-that is Robbery w/a Firearm? Answer Yes
6. Do you understand the nature of this charge? Answer Yes
7. Do you understand that upon your plea of (guilty) ( no contest ) you could be imprisoned for a maximum of thirty ( months ) (years) including consecutive sentences, and a mandatory minimum sentence, if applicable, of five ( months ) (years)? Answer Yes
8. Do you understand that you have the right to plead not guilty and be tried by a jury and be confronted by the witnesses against you, and that by your pleading (guilty) ( no contest ) you give up these and other constitutional rights? Answer Yes
9. I now inquire of the prosecutor and of the defendant and his counsel whether or not there have been any prior plea discussions. Before you answer, I advise you that the courts have approved plea bargaining and have said that it is an important part of the administration of justice to be encouraged. You should, therefore, advise me truthfully of any plea arrangements without the slightest fear of incurring disapproval of the court. Now therefore, have you agreed to plead (guilty) (no contest) upon terms of a plea arrangement? Answer Yes
10. Are these the terms and all of them? That the State dismiss the following cases 75CR20435, 75CR20440, 75CR20493, 75CR20432, 75CR20439, 75CR20416, 75CR20404, 75CR20413, 75CR20405, 75CR20399, 75CR90052; that prayer for judgment be continued until Feb. 16, 1976 and that the defendant remain in custody until that date or until final judgment is entered herein? Answer Yes
11. Except for the terms set out above, if any, has anyone made any promises to you or threatened you in any way to cause you to ...