State v. Tirado

2019 UT App 115
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
WILLIAM TIRADO,
Appellant.
Opinion
No. 20140967-CA
Filed July 5, 2019
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 M ICHELE M. C HRISTIANSEN F ORSTER authored this Opinion,
in which J UDGES K ATE A PPLEBY and JILL M. P OHLMAN concurred.
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.

State v. Tirado
20140967-CA 	2 	2019 UT App 115
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.
1. Additional facts were articulated in our previous opinion. See
State v. Tirado, 2017 UT App 31, ¶¶ 2–8, 392 P.3d 926.

State v. Tirado
20140967-CA 	3 	2019 UT App 115
¶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

State v. Tirado
20140967-CA 	4 	2019 UT App 115
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 himself in a
position where he would be forced to cross-examine Cousin, as
“‘[a]n attorney who cross-examines former clients inherently
encounters divided loyalties.’” (Quoting United States v. Voigt, 89
F.3d 1050, 1078 (3d Cir. 1996).)
¶9 	The court also assessed Tirado’s assertion that Attorney
performed 	ineffectively 	by 	failing 	to 	object 	to 	the 	hearsay
statement in Officer’s testimony. It concluded that the State’s
theory at trial was bolstered by what Cousin allegedly told
Officer about his intent concerning the drugs—that “if he needed
to sell it, he would sell from that specific amount.” The court
found 	that 	the 	failure 	to 	object 	to 	this 	testimony 	was 	not
supported by any reasonable trial strategy and that Tirado was
prejudiced by the statement because the State relied on it as
evidence 	of 	Tirado’s 	intent 	to 	distribute, 	since 	Tirado 	was
allegedly acting as the go-between for Cousin and Informant.

State v. Tirado
20140967-CA 	5 	2019 UT App 115
¶10 	After the trial court issued its findings and conclusions,
the 	State 	challenged 	the 	court’s 	determination 	that 	Tirado
received ineffective assistance, asserting that the findings did not
support a conclusion that Attorney’s conflict adversely affected
his performance and that the trial court exceeded the scope of its
mandate 	on 	remand 	by 	reaching 	conclusions 	concerning
Attorney’s 	failure 	to 	object 	to 	Officer’s 	hearsay 	statements.
Tirado, on the other hand, requests that we accept the trial
court’s findings and conclusions and reverse his conviction.
ISSUE AND STANDARD OF REVIEW
¶11 	Tirado’s ineffective assistance of counsel claim turns on
his assertion that Attorney was laboring under an actual conflict
of interest that adversely affected his performance. “In ruling on
an ineffective assistance claim following a Rule 23B hearing, we
defer to the trial court’s findings of fact, but review its legal
conclusions for correctness.”2 State v. Bredehoft, 966 P.2d 285, 289
(Utah Ct. App. 1998) (quotation simplified).
2. Tirado asserts that further review of the trial court’s decision is
unnecessary because we should simply “accept the findings and
conclusions 	issued 	by 	the 	district 	court.” 	Tirado 	cites 	the
language of our mandate to the trial court, which directed it 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.” See
Tirado, 2017 UT App 31, ¶ 26 (emphasis added). Tirado asserts
that by issuing the order, this court essentially delegated its
decision regarding ineffective assistance to the trial court and
can now review the trial court’s determination only if Tirado
(continued…)

State v. Tirado
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ANALYSIS
¶12 	The State asserts that the trial court erred in concluding
that Tirado received ineffective assistance of counsel, because the
evidence 	did 	not 	support 	a 	determination 	that 	the 	conflict
“actually affected the adequacy of [Attorney’s] representation.”
(…continued)
seeks further review. But this is not the case. The purpose of rule
23B remand is to permit the trial court to enter “findings of fact,
necessary for the appellate court’s determination of a claim of
ineffective 	assistance 	of 	counsel.” 	Utah 	R. 	App. 	P. 	23B(a)
(emphasis added). Frequently, this court may request that a 23B
court go one step further and make legal conclusions, or a 23B
court may do so on its own initiative. See, e.g., State v. Taylor, 947
P.2d 681, 684 (Utah 1997) (identifying the issue on rule 23B
remand as whether counsel had “provided ineffective assistance
of counsel and in doing so prejudiced the outcome”); State v.
Bair, 2012 UT App 106, ¶ 8, 275 P.3d 1050 (remanding for a
determination of “whether trial counsel was ineffective” with
respect to four separate issues (quotation simplified)); State v.
Millard, 2010 UT App 355, ¶ 11, 246 P.3d 151 (reciting the rule
23B 	court’s 	legal 	conclusions 	that 	counsel 	did 	not 	perform
deficiently and that the defendant did not suffer prejudice).
Given the fact-dependent nature of the ineffective assistance
inquiry and the deference an appellate court is required to give
to a trial court’s factual determinations, it is natural and helpful
for the trial court to apply its findings of fact to reach legal
conclusions regarding ineffective assistance on rule 23B remand.
But 	the 	purpose 	of 	a 	remand 	pursuant 	to 	rule 	23B—to
supplement 	the 	record 	with 	findings 	sufficient 	to 	permit
appellate review, see Utah R. App. P. 23B(a)—dictates that the
ultimate resolution of the matter of counsel’s ineffectiveness,
which 	originated 	on 	appeal, 	must 	be 	accomplished 	by 	the
appellate court that ordered the remand in the first place.

State v. Tirado
20140967-CA 	7 	2019 UT App 115
See 	Mickens 	v. 	Taylor, 	535 	U.S. 	162, 	168 	(2002) 	(quotation
simplified); see also Cuyler v. Sullivan, 446 U.S. 335, 348 (1980) (“In
order 	to 	establish 	a 	violation 	of 	the 	Sixth 	Amendment, 	a
defendant who raised no objection at trial must demonstrate that
an actual conflict of interest adversely affected his lawyer’s
performance.”). The State maintains that an actual conflict of
interest cannot be established unless there was “no tactical
reason other than the alleged conflict for counsel’s decision.”
¶13 	But this is not the standard for evaluating the adverse
effect of a conflict of interest in the Sixth Amendment context.
When evaluating a claim that a conflict of interest caused an
attorney not to do something, we consider “(1) whether the
arguments or actions allegedly omitted would likely have been
made by other counsel, and (2) whether there was a tactical
reason (other than the asserted conflict) for the omission.” State
v. Webb, 790 P.2d 65, 76 (Utah Ct. App. 1990); see also State v.
Lovell, 1999 UT 40, ¶ 24, 984 P.2d 382. This is different from the
general standard for evaluating counsel’s performance under
Strickland v. Washington, 466 U.S. 668 (1984), which requires a
defendant to persuade us that there was “no conceivable tactical
basis” for counsel’s actions. See State v. Clark, 2004 UT 25, ¶ 6, 89
P.3d 162 (emphasis omitted) (citing Strickland, 466 U.S. at 689). In
the case of a conflict of interest based on an omission, even if
there was a conceivable tactical basis for counsel’s decision, we
also assess “whether the arguments or actions allegedly omitted
would likely have been made by other counsel.” Webb, 790 P.2d
at 76.
¶14 	The State asserts that Attorney’s decision 	not to call
Cousin as a witness for Tirado was sound trial strategy because
there 	were 	a 	number 	of 	credibility 	concerns 	with 	Cousin’s
testimony, Cousin would have been subject to impeachment
with his criminal record, and Cousin would have appeared at
trial in prison clothes. Attorney claims he ultimately believed it
would hurt Tirado to be associated with Cousin. However,

State v. Tirado
20140967-CA 	8 	2019 UT App 115
Tirado was already associated with Cousin and his criminal
record even without Cousin’s in-court testimony, as the State’s
case rested on the assertion that Tirado was acting as a conduit
between Cousin and Informant. The trial court on remand found
that Cousin’s testimony would have been helpful to Tirado, and
we are not convinced that further associating Tirado and Cousin,
when the State had already done so, would have undermined
Tirado’s defense.
¶15 	Even if Attorney’s effort to distance Tirado from Cousin
could be considered a sound trial strategy based upon the
circumstances of this case, we think it likely that other counsel,
unhampered by a conflict of interest, would have approached
the case differently. Because Attorney could not ethically call
Cousin to the stand without compromising his duties to Cousin,
he was inherently more likely than a conflict-free attorney to
adopt a strategy that did not require him to call Cousin as a
witness. Another attorney, without conflicting representation,
would have been more likely to determine that because Tirado
was already associated with Cousin, the additional association
the jury might make if Cousin testified in Tirado’s defense was
outweighed 	by 	the 	potential 	exculpatory 	value 	of 	Cousin’s
testimony.
¶16 	Likewise, we are concerned that Attorney’s failure to
object to Officer’s statement was influenced by the conflict in
representation.3 The statement was inadmissible hearsay, offered
3. The State argues that the trial court exceeded the scope of its
mandate 	by 	reaching 	the 	question 	of 	whether 	counsel 	was
ineffective for failing to object to Officer’s statement. But this
issue was raised on appeal in the context of Tirado’s claim that
Attorney labored under an actual conflict of interest. Tirado
asserted on appeal that the reason Attorney failed to object to the
statement on hearsay or confrontation grounds was “because
(continued…)

State v. Tirado
20140967-CA 	9 	2019 UT App 115
“to prove the truth of the matter asserted,” see Utah R. Evid.
801(c)(2); see also id. R. 802, and Tirado could have derived no
conceivable benefit from its admission. Other counsel likely
“would have approached the case differently,” and we see no
reasonable explanation for Attorney’s failure to object to the
admission of hearsay other than the conflict. See Lovell, 1999 UT
40, ¶ 24.
¶17 	The State asserts that any deficiency in failing to object to
Officer’s statement was harmless because Cousin’s plea, which
was 	also 	admitted, 	contained 	the 	evidence 	of 	Cousin’s
admission. However, in reviewing whether a defendant has
received ineffective assistance as a result of a conflict of interest
arising from concurrent representation, “we presume prejudice
if the defendant demonstrates that an actual conflict of interest
(…continued)
either of those objections would have required the State to call
[Cousin] as a witness and would have required trial counsel to
cross-examine and impeach his own client.” See United States v.
Voigt, 89 F.3d 1050, 1078 (3d Cir. 1996) (“An attorney who cross-
examines 	former 	clients 	inherently 	encounters 	divided
loyalties.” (quotation simplified)); Castillo v. Estelle, 504 F.2d
1243, 	1245 	(5th 	Cir. 	1974). 	Thus, 	the 	trial 	court’s 	mandate
included 	assessing 	whether 	Attorney’s 	conflict 	of 	interest
adversely affected his decision not to object to Officer’s trial
statement and whether Tirado received ineffective assistance of
counsel as a result. On rule 23B remand, the trial court framed its
conclusion a bit differently—it determined that the failure to
object constituted ineffective assistance regardless of whether
that decision was the result of Attorney’s conflict of interest. But
the trial court’s framing of the issue—at least in the context
presented here—did not take the issue outside the scope of the
court’s mandate.

State v. Tirado
20140967-CA 	10 	2019 UT App 115
adversely affected his lawyer’s performance.” State v. Brandley,
972 P.2d 78, 85 (Utah Ct. App. 1998) (quotation simplified).
¶18 	Because 	we 	are 	convinced 	that 	another 	attorney,
unhampered by concurrent representation of Tirado and Cousin,
was likely to have called Cousin to the stand and likely would
have objected to Officer’s hearsay statement, we conclude that
Attorney was laboring under an actual conflict of interest and
that Tirado received ineffective assistance of counsel as a result.4
CONCLUSION
¶19 	Having reviewed the trial court’s findings of fact and
conclusions of law after the rule 23B remand, we agree that
Attorney’s 	concurrent 	representation 	of 	Tirado 	and 	Cousin
4. We are also troubled by Attorney’s negotiation of a plea
agreement 	for 	Cousin 	that 	ultimately 	affected 	Tirado 	in 	a
negative way. The trial court found that Attorney “did not
consider how [Cousin’s] plea to a distribution offense in this case
might affect Tirado’s case” and “did not discuss [Cousin’s] plea
with Tirado.” Police found no drugs on Tirado’s person and
found only drug paraphernalia at his home, so the State’s ability
to prove that Tirado was involved in the distribution of drugs
turned on its theory that Tirado was acting as the go-between for
Cousin and Informant. Without Cousin’s alleged statement to
Officer regarding his own intent and Cousin’s conviction for
possession with intent to distribute, the State’s only significant
evidence that Tirado was involved in a drug transaction was his
vague phone call with Informant, in which there was no actual
discussion of drugs. While separate representation likely would
not have precluded introduction of Cousin’s plea agreement at
Tirado’s trial, it is concerning that Tirado’s counsel was involved
in negotiating that primary piece of evidence against him.

State v. Tirado
20140967-CA 	11 	2019 UT App 115
constituted an actual conflict of interest that adversely affected
the adequacy of Attorney’s representation of Tirado. Absent
conflicting 	representation, 	it 	is 	likely 	that 	another 	attorney
would have called Cousin to testify in Tirado’s defense and
would 	have 	objected 	to 	the 	admission 	of 	Officer’s 	hearsay
statement. Tirado therefore received ineffective assistance of
counsel in violation of the Sixth Amendment to the United States
Constitution. Accordingly, we reverse Tirado’s conviction of
arranging the distribution of a controlled substance and remand
for a new trial.