State v. Tirado

2017 UT App 31

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
WILLIAM TIRADO,
Appellant.

Opinion
No. 20140967-CA
Filed February 16, 2017

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 authored this Opinion, in
which JUDGES KATE A. TOOMEY and JILL M. POHLMAN concurred.

CHRISTIANSEN, Judge:

¶1 William Tirado (Defendant) challenges his conviction on
one count of arranging the distribution of a controlled substance,
a second degree felony. 1 Specifically, he contends that he
received constitutionally ineffective assistance of counsel

1. The cover of Defendant’s brief refers only to this charge but
the statement-of-the-case section suggests Defendant is also
challenging his conviction of one count of possession of drug
paraphernalia, a class A misdemeanor. Given our resolution of
Defendant’s rule 23B motion, we need not address this
discrepancy.
State v. Tirado

because his attorney labored under a conflict of interest arising
from the concurrent representation of Defendant’s cousin
(Cousin) on related charges. Defendant seeks (1) reversal of his
conviction(s) and remand for a new trial or (2) remand for an
evidentiary hearing pursuant to rule 23B of the Utah Rules of
Appellate Procedure. We remand for a limited evidentiary
hearing.

BACKGROUND

¶2 On appeal from a jury verdict, we view the evidence and
all reasonable inferences in the light most favorable to that
verdict and recite the facts accordingly; however, we also discuss
conflicting evidence as necessary to understand the issues raised
on appeal. State v. Dozah, 2016 UT App 13, ¶ 2, 368 P.3d 863.

¶3 A confidential informant approached his police contact
(Officer), saying that he had arranged to purchase approximately
7 grams of methamphetamine from Defendant for $440. Officer
set up a sting operation to catch those involved.

¶4 Officer drove past Defendant’s house and saw him
standing out front with Cousin. Officer recognized Cousin as
someone with whom he “had prior dealings” for drug activities.
Officer parked around the corner and had the informant call
Defendant. The informant asked Defendant whether “he had it”
and then confirmed “four-four-zero.” Although there was no
specific mention of drugs, Officer testified at trial that such
obfuscations were a normal part of drug transactions. Indeed,
while testifying at trial, the informant stated that asking whether
Defendant “had it” meant asking “if he had the dope, if he had it
on him.”

¶5 The informant then told Defendant to meet him near a
library. Officer searched the informant before giving him cash to
make the deal and fitting him with an audio recording device.

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Officer instructed the informant not to cross the street “for his
and for officer safety.” The informant then walked down the
street and stopped at a corner across the street from Defendant,
who asked if the informant had the money. After the informant
replied affirmatively, Defendant stated that “my friend’s already
left” or “they’ve already left.” Due to Officer’s instruction not to
cross the street, the informant and Defendant “held at their
corners” and “were mostly conversing back and forth across the
street, mostly trying to get one another to cross the street to meet.”
Ultimately, the two did not have a face-to-face meeting, no drug
transaction took place, and the informant just walked away.

¶6 Officer then arrested Cousin, apparently because Cousin
was already wanted on other drug charges. Cousin had 2.1
grams of methamphetamine on his person—less than half of the
7 grams the informant had agreed to buy from Defendant.
Cousin stated in his police interview that “if he needed to sell
[methamphetamine], he would sell from that specific amount.”
At Defendant’s trial, Officer testified that, in previous sting
operations, Officer himself had purchased drugs from Cousin.
Officer further testified that “from my knowledge of [Cousin], he
deals directly to his people” and did not use an intermediary.

¶7 Officer also took Defendant into custody, but found no
drugs or paraphernalia on his person. While Defendant was in
custody, other police officers obtained permission from
Defendant’s fiancée and roommate to search his home. The
search turned up drug paraphernalia—pipes, baggies, and
scales—that Defendant later admitted were “all his.” Defendant
was charged by information with possession of drug
paraphernalia; after he pled not guilty to that charge, the State
amended the information to add the felony charge of arranging
the distribution of a controlled substance.

¶8 Defendant and Cousin were represented by the same
appointed counsel (Attorney) in their separate cases. Cousin
pled guilty to amended charges stemming from his involvement

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in this case. At Defendant’s subsequent trial, Attorney did not
call Cousin as a witness and did not challenge Cousin’s out-of-
court statements that were admitted as evidence against
Defendant. The jury returned guilty verdicts on both counts and
Defendant timely appealed.

ISSUE AND STANDARD OF REVIEW

¶9 Defendant contends that he received constitutionally
ineffective assistance of counsel because Attorney “labor[ed]
under an actual conflict of interest which adversely affected
counsel’s performance.” He seeks reversal of his conviction or,
alternatively, a remand to the district court to conduct an
evidentiary hearing to supplement the record regarding this
claim.

¶10 When a claim of ineffective assistance of counsel is raised
for the first time on appeal, there is no lower court ruling to
review and we must determine whether the defendant was
deprived of the effective assistance of counsel as a matter of law.
Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587. Similarly,
because a motion seeking a rule 23B remand is necessarily
brought for the first time on appeal, no standard of review
applies.

ANALYSIS

¶11 Defendant contends that Attorney’s representation of
both Defendant and Cousin amounted to a conflict of interest,
and that the conflict of interest caused Attorney’s representation
of Defendant to fall below the constitutionally mandated level.
Specifically, Defendant argues that Attorney’s duties of loyalty
to both Defendant and Cousin led to “a significant risk that the
representation of one or more clients [would] be materially
limited by the lawyer’s responsibilities to another client.” See
Utah R. Prof’l Conduct 1.7(a)(2).

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¶12 Defendant notes that, by the time of Defendant’s trial,
Cousin had pled guilty to attempted possession of a controlled
substance and had been sentenced. 2 Defendant points to the fact
that the State’s introduction of “evidence of [Cousin’s] crime, his
statements, [and] his criminal history . . . was admitted without
objection or challenge from the defense” and argues that “this
evidence was used by the State to bolster the otherwise
unsupported claims of the paid confidential informant.”
Defendant asserts that Attorney’s decision not to challenge this
evidence was the result of Attorney being “forced to choose to
compromise [Defendant’s] interests in challenging the State’s
evidence . . . , or to compromise [Cousin’s] interest in keeping his
confidential communications private, in maintaining the
lawyer/client relationship and loyalty, and in keeping in the
good graces of the State.” Essentially, Defendant claims that
Attorney was unable to wholeheartedly and zealously represent
him because Attorney was worried about compromising
Cousin’s attorney–client confidences or jeopardizing Cousin’s
status with the State or the Board of Pardons and Parole. 3

2. Defendant highlights Cousin’s affidavit submitted in support
of Defendant’s rule 23B motion, in which Cousin stated that
before entering his plea, “I was also defending myself in several
other cases. [Attorney] was also appointed to represent me in
those cases.” The State responds that the existence and timing of
those other cases is purely speculative due to Defendant’s failure
to include any identifying information about them. We need not
resolve this issue, because our decision to remand is based on
Attorney’s representation of Cousin in his attempted-possession
case filed contemporaneously with Defendant’s case.

3. We note the wide scope of information that the Board of
Pardons and Parole is entitled to rely upon in its parole
decisions. See Northern v. Barnes, 825 P.2d 696, 699 (Utah Ct. App.
1992) (noting that the Board of Pardons had the discretion to rely
(continued…)

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¶13 “To succeed on a claim of ineffective assistance of
counsel, a defendant must show that trial counsel’s performance
was deficient and that the defendant was prejudiced thereby.”
State v. Hards, 2015 UT App 42, ¶ 18, 345 P.3d 769 (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). “Where trial
counsel’s alleged ineffectiveness caused or exacerbated record
deficiencies, defendants . . . have an appropriate procedural tool
for remedying those deficiencies.” State v. Litherland, 2000 UT 76,
¶ 16, 12 P.3d 92. That tool is rule 23B of the Utah Rules of
Appellate Procedure. Id. ¶¶ 13–15. Rule 23B allows an appellant
to make a motion to “remand the case to the trial court for entry
of findings of fact, necessary for the appellate court’s
determination of a claim of ineffective assistance of counsel.”
Utah R. App. P. 23B(a). However, “[t]he motion shall be
available only upon a nonspeculative allegation of facts, not fully
appearing in the record on appeal, which, if true, could support
a determination that counsel was ineffective.” Id.

¶14 Generally, a defendant’s motion seeking rule 23B remand
must meet several requirements: (1) it must be supported by
affidavits alleging facts outside the existing record, (2) the
alleged facts must be non-speculative, and (3) the alleged facts, if
true, must establish both elements of a traditional ineffective-
assistance claim, i.e., counsel’s deficient performance and
resulting prejudice. State v. Griffin, 2015 UT 18, ¶¶ 18–20. But
where a defendant’s ineffective-assistance claim is based on trial
counsel’s alleged conflict of interest, the third requirement must
be modified. Rather than establish deficient performance and

(…continued)
on information adduced at a hearing eight years after sentencing
and that the exercise of such discretion is “precisely the kind[] of
issue[] that [is] not subject to judicial review”); see also Padilla v.
Board of Pardons & Parole, 2016 UT App 150, ¶ 6, 380 P.3d 1 (per
curiam).

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resulting prejudice, the defendant must instead show that trial
counsel was subject to a conflict of interest and that the conflict
of interest adversely “affected the adequacy of his
representation.” See Mickens v. Taylor, 535 U.S. 162, 171–72 (2002)
(citation and internal quotation marks omitted); see also Lafferty v.
State, 2007 UT 73, ¶ 62, 175 P.3d 530 (explaining that a defendant
“must show that an actual conflict of interest adversely affected
his lawyer’s performance” (citation and internal quotation marks
omitted)).

¶15 Here, Defendant’s motion is accompanied by several
documents, including affidavits from himself and Cousin, a
letter Cousin wrote to the judge in Cousin’s case, and Cousin’s
statement in support of his guilty plea. Based on the facts alleged
in these documents, Defendant suggests that Attorney may have
made the decision not to call Cousin as a witness in Defendant’s
trial due to a conflict of interest. Defendant explains that, if
granted a rule 23B remand, he would subpoena Attorney to
question him about that decision.

¶16 The State opposes remand, arguing first that “[m]uch of
the information” attached by affidavit to Defendant’s rule 23B
motion “already appear[s] in the record”; in other words, that
the motion is not supported by facts outside the existing record.
We agree that a significant portion of the affidavit information is
indeed duplicative of information already in the record. But
much is not all; even the State does not assert duplicativeness as
to Cousin’s affidavit, a letter from Cousin to the judge, and
Defendant’s own affidavit. These attachments contain
information relevant to Defendant’s allegation that Attorney
refrained from fully exploring Cousin’s involvement in and
responsibility for the attempted drug deal. For example,
Cousin’s affidavit claims that Attorney did not ask him about
testifying at Defendant’s trial and that, if Cousin had been called,
he would have testified that he did not arrange to have
Defendant act as an intermediary in a drug deal. Cousin’s letter
to the judge in his case and his affidavit in this case suggest that

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Attorney was representing Cousin in other matters beyond the
attempted-possession case. And Defendant’s affidavit claims
that he brought the issue of Cousin testifying to Attorney’s
attention and that he had believed that Cousin would in fact be
called to testify. These pieces of information establish the need
for a rule 23B remand. Specifically, the information explains why
Attorney should be subpoenaed to testify regarding the
reasoning behind his election not to challenge the evidence
relating to Cousin and not to call Cousin as a witness. Thus, the
rule 23B motion contains relevant facts that are outside the
existing record.

¶17 The State also asserts that, “[a]ssuming Defendant’s extra-
record evidence is true, his claim of an actual conflict of interest
remains entirely speculative.” The Utah Supreme Court has
recently clarified the term speculative in the context of a rule 23B
motion:

“Speculation” is “mere guesswork or surmise,” a
“conjecture,” or a “guess.” In the context of rule
23B, speculative allegations are those that have
little basis in articulable facts but instead rest on
generalized assertions. . . . [W]hen a defendant
alleges that counsel failed to investigate or call a
witness, the defendant must, at the very least,
identify the witness. It is therefore “improper to
remand a claim under rule 23B for a fishing
expedition.” The mere hope that an individual may
be able to provide information if subpoenaed to
testify is not sufficient. An affiant must submit
specific facts and details that relate to specific
relevant occurrences.

State v. Griffin, 2015 UT 18, ¶ 19 (citations omitted).

¶18 The State argues that the rule 23B allegations are
speculative because Defendant “proffers no impeachment

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evidence that was available to [Attorney] that made
impeachment possible.” We first note that Attorney’s failure to
challenge the introduction of Cousin’s out-of-court statements
allowed the State to present that evidence, which was harmful to
the defense, without any attempt by Attorney to mitigate its
effect—for example, by highlighting Cousin’s other charges and
plea deal. 4 But in any event, the focus on impeachment ignores
the possibility that Cousin’s direct testimony could have been
helpful to Defendant. According to Cousin’s affidavit, he would
have testified that he did not arrange to have Defendant act as an
intermediary in the attempted drug deal. Such testimony might
well have assisted the defense, especially given its source—the
only person in this case who was found to be in possession of
drugs. Thus, without regard to whether Cousin could have been
impeached, the facts alleged in the rule 23B motion, “if true,
could support a determination that counsel was ineffective.” See
Utah R. App. P. 23B(a).

¶19 The State also argues that the alleged conflict of interest is
speculative because, “without showing that [Attorney’s]
decision actually advanced the crucial witness’s interests, the
evidence suggests only objectively unreasonable representation
that carries with it the burden of also proving prejudice.” The
State notes that Defendant must prove that Attorney actually
advanced Cousin’s interests over Defendant’s and asserts that
Defendant “cannot make that showing.”

¶20 The factual allegations of Defendant’s rule 23B motion, if
true, show that Cousin’s testimony could have assisted the
defense, that Attorney was aware of that possibility, that Cousin
had accepted a deal to plead guilty to a lesser charge than what

4. Defendant notes that, while Cousin was arrested for a first-
degree felony, the State charged Cousin with a second-degree
felony and then amended that charge to allow Cousin to plead
guilty to only a third-degree felony.

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he had originally been charged with, and that Attorney knew
Cousin was facing charges beyond the one to which he had pled
guilty and been sentenced. And the record facts show that
Attorney did not call Cousin to the stand or posit that Cousin
was culpable of a greater crime than the lesser charge to which
he had pled guilty. These facts, considered together, raise the
possibility that Attorney’s decision was the result of conflicting
duties to Defendant and Cousin beyond mere speculation, i.e.,
the possibility is more than “mere guesswork or surmise.” See
State v. Griffin, 2015 UT 18, ¶ 19 (citation and internal quotation
marks omitted). For example, Attorney may well have been
concerned that Cousin’s testimony would affect future decisions
by the Board of Pardons and Parole or the State’s willingness to
offer Cousin plea deals in his other cases. Furthermore, Attorney
may have avoided confronting Cousin or challenging evidence
relating to him because doing so might breach Attorney’s duties,
including that of confidentiality, owed to Cousin.

¶21 Moreover, this is precisely the type of information gap
that rule 23B was designed to address. The State’s argument
would place Defendant in a Catch-22; because Defendant does
not know precisely the content of Attorney’s testimony,
Defendant should not be allowed to subpoena Attorney to
testify. We cannot agree to such a restrictive interpretation of
rule 23B with respect to ineffective-assistance-of-counsel claims
based on conflicts of interest. Indeed, the person most able to
explain Attorney’s decision is Attorney himself, and the rule 23B
motion explains that Defendant seeks to subpoena Attorney
about that decision on remand. Cf. id. (rejecting “a strict
rule . . . that the affidavit must come from the potential witness
himself”).

¶22 The State further argues that perhaps “a tactical reason
other than the alleged conflict exists for [Attorney’s] decision not
to ensure [Cousin] took the stand.” The State notes that Attorney
was able to present a defense not reliant on Cousin’s testimony
and that presenting Cousin to the jury may have “deteriorated

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the evidence” supporting that defense. Specifically, although the
State concedes that Defendant’s strategy was to portray himself
as “a drug user but not a seller” and to “convince the jury that he
did not become a seller simply by associating with someone who
intended . . . to sell meth,” the State asserts that Cousin’s
corroboration could have been weakened in the jury’s view due
to their family ties and that it risked associating Defendant with
Cousin’s criminal record. Thus, in the State’s view, because not
calling Cousin was within the catalogue of objectively reasonable
trial strategies, Attorney’s decision cannot amount to ineffective
assistance of counsel.

¶23 However, while there may have been multiple trial
strategies that entailed not calling Cousin as a witness for one
reason or another, the essential issue is not whether any
objective counsel could have reasonably decided to forgo
Cousin’s testimony. This is because the Strickland test of
objectively deficient performance and resulting prejudice is
supplanted by the actual-conflict-of-interest test when
considering a rule 23B motion based on ineffective assistance of
counsel. See Mickens v. Taylor, 535 U.S. 162, 171–72 (2002); see also
supra ¶ 14. It is true that “[e]ven the best criminal defense
attorneys would not defend a particular client in the same way.”
Strickland v. Washington, 466 U.S. 668, 689 (1984). But where one
of the objectively reasonable defenses is foreclosed by an
attorney’s conflict of interest, that attorney’s election to present a
different defense may not be the result of his or her independent
determination that the different defense is truly the best for the
defendant. Cf. Mickens, 535 U.S. at 171–72; Lafferty v. State, 2007
UT 73, ¶ 62, 175 P.3d 530 (“[T]he relevant question is whether [a
defendant’s] counsel was forced by his prior representation [of
another client] to make choices that advanced [the other client’s]
interests to [the defendant’s] detriment.”; id. (“The right to
counsel includes the right to counsel free from conflicts of
interest. . . . In cases where an actual detrimental conflict has
been established, we will presume prejudice.”).

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¶24 The question before us is whether it is possible that this
particular counsel elected to forgo a witness’s testimony due to a
conflict of interest. We conclude that the possibility exists and
that Defendant’s allegations are more than “guesswork” or a
“fishing expedition” because he has provided “specific facts and
details that relate to specific relevant occurrences.” See Griffin,
2015 UT 18, ¶ 19 (citations and internal quotation marks omitted).

CONCLUSION

¶25 Defendant’s rule 23B motion is supported by affidavits
alleging facts outside the existing record. Those facts are
sufficiently detailed so as to be non-speculative. And, if proven,
they may show that Attorney had a conflict of interest that
adversely affected his representation of Defendant.

¶26 Accordingly, we grant Defendant’s rule 23B motion and
remand to the district court to conduct an evidentiary hearing.
The district court shall 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.

¶27 Remanded.

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