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State v. Tirado

Court of Appeals of Utah

July 5, 2019

State of Utah, Appellee,
v.
William Tirado, Appellant.

          Second District Court, Ogden Department The Honorable Ernest W. Jones No. 121901668

          Margaret P. Lindsay and Douglas J. Thompson, Attorneys for Appellant

          Sean D. Reyes and Kris C. Leonard, Attorneys for Appellee

          Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Kate Appleby and Jill M. Pohlman concurred.

          OPINION

          CHRISTIANSEN FORSTER, JUDGE

         ¶1 William Tirado challenges his conviction on one count of arranging the distribution of a controlled substance, a second-degree felony, on the ground that he received ineffective assistance of counsel because his trial counsel had an actual conflict of interest. We previously remanded this case for the trial court to make additional findings pursuant to rule 23B of the Utah Rules of Appellate Procedure. See State v. Tirado, 2017 UT App 31, ¶ 26, 392 P.3d 926. The trial court did so and concluded that Tirado received ineffective assistance of counsel. Having reviewed the trial court's findings and conclusions, we reverse Tirado's conviction and remand for a new trial.

          BACKGROUND

         ¶2 Tirado was arrested following a sting operation in which a paid informant (Informant) attempted to purchase drugs from Tirado and his cousin (Cousin).[1] Although communication between Informant and Tirado was vague and no drugs exchanged hands, the investigating officer (Officer) arrested Cousin pursuant to outstanding warrants and discovered that he had 2.1 grams of methamphetamine on his person. When asked about the methamphetamine, Cousin allegedly told Officer that "if he needed to sell [methamphetamine], he would sell from that specific amount."

         ¶3 Officer also took Tirado into custody. Although Officer found no drugs or paraphernalia on Tirado's person, officers ultimately discovered drug paraphernalia at Tirado's residence after obtaining permission from Tirado's fiancée to search it. Tirado was charged with possession of drug paraphernalia, a class A misdemeanor, and arranging the distribution of a controlled substance, a second-degree felony.

         ¶4 The same appointed counsel (Attorney) represented both Tirado and Cousin. Cousin eventually pleaded guilty to attempted possession of a controlled substance with intent to distribute. Attorney was unable to obtain a plea deal for Tirado, and his case went to trial.

         ¶5 At trial, Attorney did not call Cousin as a witness or object when Officer testified regarding Cousin's statement about his intent to sell methamphetamine. Tirado was ultimately convicted of both charges and appealed his conviction for arranging the distribution of a controlled substance.

         ¶6 On appeal, Tirado asserted that he received ineffective assistance of counsel because Attorney's concurrent representation of both Tirado and Cousin constituted "an actual conflict of interest which adversely affected counsel's performance." Specifically, he alleged that the conflict affected Attorney's decision "not to challenge the evidence relating to Cousin and not to call Cousin as a witness." State v. Tirado, 2017 UT App 31, ¶ 16, 392 P.3d 926. Concurrent with his appeal, Tirado moved this court to remand the case pursuant to rule 23B of the Utah Rules of Appellate Procedure to enable the trial court to make factual findings regarding Attorney's alleged conflict. We granted Tirado's motion, directing the trial court to determine "(1) whether Attorney's representation of Cousin resulted in an actual conflict of interest with respect to his representation of Defendant, to which Defendant did not consent, and (2) whether that conflict of interest caused Attorney's representation of Defendant to be constitutionally ineffective." Id. ¶ 26.

         ¶7 On remand, the trial court held a three-day evidentiary hearing to assess Tirado's ineffective assistance claims. The court determined that Attorney had read the police reports upon being assigned to Tirado's case and was aware that Cousin was arrested at the same time and that Attorney had also been assigned to represent Cousin, whom he had represented in other cases. The trial court further found that Cousin had told Attorney that he was willing to testify on Tirado's behalf. Specifically, Cousin was prepared to testify that he and Tirado "were not working together to sell those drugs, he did not have Tirado contact [Informant] on the phone to arrange a drug deal, and Tirado was not acting" as an agent for Cousin. Cousin also told Attorney that he would deny that he ever admitted to police that he intended to sell the drugs found in his pocket. The court found that such statements would have been inconsistent with the admission Cousin made in his plea agreement that he knowingly and intentionally possessed and attempted to distribute methamphetamine.

         ¶8 Based on the information submitted at the evidentiary hearing, the trial court concluded that Attorney had labored under an actual conflict of interest because "[s]imultaneously representing both Tirado and [Cousin] created a substantial risk that [Attorney's] representation of Tirado would be materially limited by his responsibilities to [Cousin]." Moreover, because Tirado's case rested on his assertion that he did not intend to distribute drugs, Cousin's plea, which Attorney arranged and in which Cousin admitted his intent to distribute, had the potential to undermine Tirado's defense. The court further concluded that this conflict affected Attorney's ability to adequately represent Tirado because Attorney could not call Cousin as a witness in Tirado's case without violating his duties to Cousin, due to the possibility that Cousin's testimony would open Cousin up to perjury charges, and because Attorney could not put ...


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