Dorsey v. State

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Willis Dorsey, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2011-194547

ON WRIT OF CERTIORARI

Appeal From Marion County
Howard P. King, Circuit Court Judge
Thomas A. Russo, Post-Conviction Relief Judge

Unpublished Opinion No. 2015-UP-452
Heard April 15, 2015 – Filed September 9, 2015

REVERSED AND REMANDED

Appellate Defender Robert M. Pachak, of Columbia, for
Petitioner.

Attorney General Alan McCrory Wilson and Senior
Assistant Attorney General David A. Spencer, both of
Columbia, for Respondent.
PER CURIAM: In this appeal from the dismissal of an application for post-
conviction relief (PCR), we find plea counsel was ineffective due to an actual
conflict of interest that arose when he continued to represent Willis Dorsey and his
codefendant, Demetrius Jones, after Jones decided to plead guilty and testify
against Dorsey. We reverse and remand.

I. Facts and Procedural History

Following a violent crime spree, Dorsey, Jones, and Cody Waters were indicted for
murder, armed robbery, assault and battery of high and aggravated nature
(ABHAN), and two counts of possession of a weapon during the commission of a
violent crime. On May 21, 2007, Jones and Waters pled guilty to voluntary
manslaughter, armed robbery, and ABHAN. The State asked the plea court to
defer sentencing until after Dorsey's trial because Jones and Waters had "agreed
and [were] willing to testify against [Dorsey]." Henry Anderson represented Jones
at the plea hearing.

On May 23, 2008, a year after Jones's and Waters' plea, Dorsey pled guilty to
armed robbery, possession of a weapon during the commission of a violent crime,
and ABHAN. The State dismissed the remaining charges. Anderson represented
Dorsey at the plea hearing. According to the State, it offered to allow one of the
codefendants to plead to voluntary manslaughter and armed robbery if he "would
tell . . . the truth and be willing to testify." Dorsey was the first to say he would
accept that offer; however, Dorsey fled to Georgia before pleading guilty.

The plea court acknowledged Dorsey and Jones were both represented by
Anderson, and the following exchange occurred:

The Court: Mister Dorsey, you realize Mister
Anderson is also representing Mister
Jones. I don't know, but I don't believe
there is any conflict in his representing
both of you, but I want to make sure that
you don't have any problem with that, the
fact that he is representing Mister Jones
and you. Do you have any problem with
that?

Mr. Dorsey: None whatsoever, sir.
The Court: All right. [sic] And so you would waive
any conflict that might exist as a result of
that dual representation. Is that correct?

Mr. Dorsey: Yes, sir.

During his mitigation statement for Jones, Anderson stated, "[Jones] is very close
friends with [Dorsey] and he didn't want to do it, . . . but he was prepared to testify
as to everyone's involvement if that event ever happened."

The plea court sentenced Dorsey concurrently to twenty years' imprisonment for
armed robbery, ten years' imprisonment for ABHAN, and five years' imprisonment
for the weapon charge. Dorsey filed a PCR application alleging Anderson was
ineffective due to a conflict of interest.

During the PCR hearing, Dorsey asserted a conflict of interest arose because
Anderson asked the plea court to defer Jones's sentence so Jones could testify
against Dorsey and Anderson should have moved to be relieved as counsel "so that
he could represent [Jones]." Dorsey believed it was a "conflict within itself" for
Anderson to advise Jones to testify against Dorsey and continue representing
Dorsey. He admitted the plea court advised him a potential conflict of interest may
exist; however, he did not believe he waived any conflict because "[he] was never
asked to waive [his] conflict. [He] was only asked . . . if there was a conflict,
would [he] waive it." Dorsey maintained he did not know that Jones was willing to
testify against him or that Anderson asked the plea court to defer Jones's
sentencing until after Jones testified against Dorsey.

Anderson testified Dorsey and Jones retained him, and he discussed with them the
potential for a conflict at the beginning of the representation. He informed them he
may have to withdraw from representing one of them if a conflict arose, and
Dorsey and Jones agreed to waive any potential conflict. Anderson advised them
to plead guilty and testify against Waters, but they decided to go to trial.
Thereafter, Dorsey fled to Georgia and Jones pled guilty.

On cross-examination, Anderson stated he "discussed with [Dorsey] the potential
conflict" after Dorsey returned to South Carolina, "made [Dorsey] aware of the
conflict if he chose to go to trial," and "gave [Dorsey] a remedy for that in that
[Dorsey] would have had another attorney" if he chose to go to trial.1 Anderson
did not otherwise explain what he discussed with Dorsey regarding the conflict
after Dorsey returned to South Carolina. Although Dorsey knew Jones pled guilty,
Anderson did not know whether Dorsey knew Jones's sentencing was deferred.

The PCR court found Anderson credible and Dorsey not credible. It denied
Dorsey's application for PCR, finding an actual conflict never arose and Anderson
"took preventive steps to avoid a potential conflict from prejudicing [Dorsey]."

Dorsey's counsel filed a Johnson petition,2 and this court ordered the parties to
brief the issue of whether an actual conflict of interest existed. Following briefing,
this court granted certiorari.

II. Actual Conflict

Dorsey argues a conflict of interest arose when Anderson represented Jones "at
[Dorsey's] expense by agreeing to have [Jones] testify against [Dorsey]." We
agree.

The burden is on the PCR applicant to prove he is entitled to relief. Jordan v.
State, 406 S.C. 443, 449, 752 S.E.2d 538, 541 (2013). "The mere possibility
defense counsel may have a conflict of interest is insufficient to impugn a criminal
conviction." Id. (citation omitted). "[T]o 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." Cuyler v.
Sullivan, 446 U.S. 335, 348 (1980). A PCR applicant must show counsel "actively
represented conflicting interests" to establish the constitutional predicate for a
claim of ineffective assistance of counsel. Jordan, 406 S.C. at 449, 752 S.E.2d at
541.

"[T]he Sixth Amendment right to counsel includes the right to effective assistance
free of conflicts of interest, and in the case of a single attorney representing
multiple defendants, free from conflicting interests among each of the defendants."
Hoffman v. Leeke, 903 F.2d 280, 285 (4th. Cir. 1990). "To establish a violation of
the Sixth Amendment right to effective counsel due to a conflict of interest arising

1
Anderson spoke with two other attorneys about representing Dorsey if he went to
trial.
2
See Johnson v. State, 294 S.C. 310, 364 S.E.2d 201 (1988).
from multiple representation, a [PCR applicant] who did not object at trial must
show an actual conflict of interest adversely affected his attorney's performance."
Jordan, 406 S.C. at 449, 752 S.E.2d at 541. Appellate courts reviewing an
allegation of a conflict of interest "must determine whether there was an actual
conflict of interest and, if so, whether that conflict adversely affected [counsel's]
representation of [the petitioner]." Hoffman, 903 F.2d at 286; see also United
States v. Swartz, 975 F.2d 1042, 1048 (4th. Cir. 1992) ("[W]e must determine 1)
whether [counsel] faced an actual conflict of interest . . . ; and 2) if so, whether that
actual conflict resulted in an adverse effect on [counsel's] performance in
advancing [the client's] position."). An actual conflict of interest occurs

when a defense attorney places himself in a situation
inherently conducive to divided loyalties. . . . If a defense
attorney owes duties to a party whose interests are
adverse to those of the defendant, then an actual conflict
exists. The interests of the other client and the defendant
are sufficiently adverse if it is shown that the attorney
owes a duty to the defendant to take some action that
could be detrimental to his other client.

Lomax v. State, 379 S.C. 93, 101, 665 S.E.2d 164, 168 (2008) (alteration in
original) (citation omitted).

Once a petitioner shows "a conflict of interest actually affected the adequacy of his
representation," he does not need to prove prejudice to obtain PCR relief. Cuyler,
446 U.S. at 349-50; see also Jordan, 406 S.C. at 449, 752 S.E.2d at 541.
"[P]rejudice 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." State v. Sterling, 377 S.C. 475, 479, 661
S.E.2d 99, 101 (2008) (quoting Strickland v. Washington, 466 U.S. 668, 692
(1984)).

In Langford v. State, our supreme court examined whether an actual conflict of
interest arose when an attorney represented codefendants at a guilty plea hearing.
310 S.C. 357, 359, 426 S.E.2d 793, 794-95 (1993). Langford and his codefendant,
Howard, retained the same law firm to present an alibi defense. 310 S.C. at 358,
426 S.E.2d at 794. However, another codefendant, Todd, pled guilty and produced
a recorded conversation wherein Langford implicated himself in the burglaries.
310 S.C. at 358-59, 426 S.E.2d at 794. When Howard learned about the recorded
conversation, he decided to plead guilty. 310 S.C. at 359, 426 S.E.2d at 794.
Langford also pled guilty, and "Langford and Howard entered their pleas
simultaneously and received identical sentences." Id.

Langford later applied for PCR, asserting plea counsel was ineffective for
"continu[ing] to represent him after Howard decided to plead guilty without
advising him of the dangers of dual representation." 310 S.C. at 359, 426 S.E.2d at
794. The court determined "Langford's attorney never actively represented
competing interests," 310 S.C. at 360, 426 S.E.2d at 795, reasoning,

The possible conflict that developed when Howard
decided to plead guilty never ripened into an actual
conflict, however, because Langford, fearing that
Howard would testify against him, also decided to plead
guilty. There is no evidence in the record from which it
may be inferred that trial counsel advised either co-
defendant to plead guilty in order to obtain more
favorable consideration for the other. The mere fact that
Howard would be available to testify against Langford
does not establish an actual conflict of interest.

310 S.C. at 359-60, 426 S.E.2d at 795.

However, in Edgemon v. State, 318 S.C. 3, 5, 455 S.E.2d 500, 501 (1995), our
supreme court found an actual conflict of interest arose when evidence showed
plea counsel advised Edgemon's codefendant, Brogden, to plead guilty and testify
against Edgemon. Citing Langford, the court noted "[t]he mere fact that Brogden
would be available to testify against [Edgemon] does not establish an actual
conflict of interest." Edgemon, 318 S.C. at 5, 455 S.E.2d at 500. However, the
court found an actual conflict of interest arose because plea counsel advised
Brogden to testify against Edgemon prior to Edgemon's guilty plea and failed to
negotiate a pretrial intervention program on behalf of Edgemon even though the
State promised the program to Brogden. 318 S.C. at 5, 455 S.E.2d at 501.

Likewise, in Thomas v. State, 346 S.C. 140, 142, 144, 551 S.E.2d 254, 255-56
(2001), the supreme court determined an actual conflict of interest arose when an
attorney represented Thomas and her husband on related drug charges. Before
trial, the State offered the following plea bargain:

[Thomas] and [her h]usband could each plead to
trafficking in cocaine in an amount of more than one
hundred grams and each receive an eight-year sentence[,]
or either [Thomas or her h]usband could plead to the
entire amount and receive the mandatory minimum
sentence of twenty-five years, while the other person
would be allowed to go free.

346 S.C. at 142, 551 S.E.2d at 255. Thomas pled to the entire amount. 346 S.C. at
143, 551 S.E.2d at 255. The court determined an actual conflict arose the moment
the State made the plea offer "because it was in each spouse's best interest for the
other spouse to take the entire responsibility for the cocaine." 346 S.C. at 144, 551
S.E.2d at 256. The court reasoned, "At the moment the [State] made the plea offer,
[Thomas's and her h]usband's interests became adverse to one another and counsel
should have advised them accordingly." Id. "Further, counsel acted upon this
conflicting loyalty by failing to advise [Thomas] she had nothing to lose by
proceeding to trial." Id. The court noted counsel could have continued to
represent both parties if he had "acquired another waiver covering this specific
conflict." Id.

Here, we find Anderson's continued representation of Dorsey after Jones agreed to
testify against Dorsey constituted an actual conflict of interest that adversely
affected Dorsey. The actual conflict arose when Anderson discussed a plea with
Jones that included testifying against Dorsey and negotiated on behalf of Jones in a
manner that was adverse to Dorsey. By engaging in these conversations, Anderson
"place[d] himself in a situation inherently conducive to divided loyalties," creating
an actual conflict of interest. Lomax, 379 S.C. at 101, 665 S.E.2d at 168.

The State argues Dorsey did not prove an actual conflict existed because the record
does not contain evidence showing Anderson advised Jones to testify against
Dorsey or negotiated with the State to obtain a more favorable sentence for Jones
in exchange for Jones's agreement to testify against Dorsey. However, the specific
conversations Anderson had with Jones and the solicitor are irrelevant. The actual
conflict is demonstrated by the result of the conversations, which led to a situation
where Jones benefitted from agreeing to testify against Dorsey. Anderson engaged
in representation that had, as its result, a situation adverse to Dorsey.

Further, we find these facts are distinguishable from Langford. The Langford
court determined "[t]here [was] no evidence in the record from which it may be
inferred that trial counsel advised either co-defendant to plead guilty in order to
obtain more favorable consideration for the other." 310 S.C. at 359-60, 426 S.E.2d
at 795. Here, Anderson continued to represent Dorsey after Jones pled guilty and
agreed to testify against Dorsey. Although Anderson never testified he advised
Jones to testify against Dorsey or negotiated with the State to obtain a more lenient
sentence for Jones, Anderson was aware Jones would testify against Dorsey if
Dorsey proceeded to trial, and the plea court deferred Jones's sentencing because
Jones was willing to testify against Dorsey. The logical inference from this
evidence is that Anderson advised Jones to testify against Dorsey to receive more
favorable sentencing and negotiated with the State on behalf of Jones, to Dorsey's
detriment. Thus, we find Anderson represented competing interests, creating an
actual conflict that adversely affected Anderson's representation of Dorsey.

III. Waiver

"[T]he Sixth Amendment right to conflict-free representation, like the right to
counsel itself, may be the subject of a waiver." Swartz, 975 F.2d at 1048. "To be
valid, a waiver of a conflict of interest must not only be voluntary, it must be done
knowingly and intelligently." Thomas, 346 S.C. at 144, 551 S.E.2d at 256. "The
test to be applied in determining whether a fundamental right, such as the right to
effective counsel, has been waived is well settled. The state can establish a waiver
only by proving an intentional relinquishment or abandonment of the right."
Hoffman, 903 F.2d at 288. "Whether there has been a waiver depends on the
particular facts of each case and the court must make as thorough and long an
inquiry as necessary to determine whether the accused is voluntarily, knowingly[,]
and intelligently waiving his right." Id.

In Thomas, our supreme court determined a waiver at the onset of representation
was insufficient to waive the actual conflict that arose when the State offered a
married couple the option of dismissing one spouse's charges if the other spouse
pled guilty to all the charges. 346 S.C. at 142, 144, 551 S.E.2d at 255-56. There,
Thomas "was told only that she needed a separate attorney in case she and [her
h]usband began to implicate each other, something that never happened." 346 S.C.
at 144, 551 S.E.2d at 256. The court held Thomas "should have been given
another opportunity to waive the conflict" when the State made the offer. 346 S.C.
at 144-45, 551 S.E.2d at 256.

In Jordan, our supreme court found the record did not contain probative evidence
to support the PCR court's finding that Jordan waived the potential conflict of
interest. 406 S.C. at 450, 752 S.E.2d at 541. At the PCR hearing, Jordan testified
trial counsel never informed him about the potential conflict of interest and he did
not waive any conflict. 406 S.C. at 447, 752 S.E.2d at 540. Trial counsel admitted
he never told the trial court about his active representation of Jordan's girlfriend in
unrelated charges. 406 S.C. at 446, 448, 752 S.E.2d at 539-40. When questioned
about whether he explained the potential conflict to Jordan, trial counsel replied, "I
don't think it was explained in so many words. I mentioned items with him
regarding her regarding him, but I do believe he was blinded by love." 406 S.C. at
447-48, 752 S.E.2d at 540. Based on the lack of evidence presented, our supreme
court concluded the PCR court erred in finding Jordan waived the conflict. 406
S.C. at 451, 752 S.E.2d at 542.

In Hoffman, the U.S. Court of Appeals for the Fourth Circuit determined Hoffman
did not knowingly and voluntarily waive a conflict that arose when attorney Long
continued to represent Hoffman and his codefendant, Moose, after Moose pled
guilty and testified against Hoffman. 903 F.2d at 286-88. The court found the
waiver was not knowing and voluntary because

[n]o one had explained to any of the defendants exactly
what is meant by a conflict of interest[,] Hoffman
testified that he was not aware that Moose was going to
testify against him and implicate him in the murder, and,
according to Hoffman, Long never told him that he had
advised Moose to testify.

Id. at 289.

Here, the evidence does not support a finding that Dorsey knowingly and
voluntarily waived the conflict. See Thomas, 346 S.C. at 144, 551 S.E.2d at 256
("To be valid, a waiver of a conflict of interest must not only be voluntary, it must
be done knowingly and intelligently."). Although Anderson stated he explained
the potential for a conflict of interest at the onset of representation, Anderson did
not offer testimony detailing what he explained to Dorsey and Jones at the
beginning of the representation or what he told Dorsey after Dorsey returned to
South Carolina. When questioned specifically about whether Dorsey knew Jones's
sentencing had been deferred, Anderson replied, "I'm not sure if he's aware of that
or not." Anderson's testimony does not provide sufficient information for this
court to find Anderson explained the nature of the specific conflict with Dorsey.
Further, the plea court's waiver colloquy did not apprise Dorsey of any actual
conflict he was waiving. See Swartz, 975 F.2d at 1050 (finding the waiver
ineffective where the magistrate who conducted the Rule 44(c)3 inquiry made

3
Rule 44(c), Fed. R. Crim. P., requires federal courts to inquire into joint
representation and advise defendants of their right to separate representation.
statements that "were largely general in nature [and did not] come close to warning
[Swartz] of the particular conflict that in fact arose"). Because the record contains
no evidence showing Dorsey knew the nature of the actual conflict—that Jones
agreed to testify against him—we find the record does not support a finding that
Dorsey knowingly and intelligently waived the conflict. See Hoffman, 903 F.2d at
288 ("The state can establish a waiver only by proving an intentional
relinquishment or abandonment of the right."); Jordan, 406 S.C. at 450-51, 752
S.E.2d at 542 (concluding the PCR court erred in finding Jordan waived the
conflict because the record did not contain sufficient evidence showing the wavier
was knowing and voluntary); Thomas, 346 S.C. at 142, 144, 551 S.E.2d at 255-56
(finding a waiver at the onset of representation was insufficient to waive the actual
conflict that arose when the State offered a married couple the option of dismissing
one spouse's charges if the other spouse pled guilty to all the charges).

IV. Conclusion

We find Anderson actively represented competing interests and his representation
adversely affected Dorsey's interests. Further, we find the evidence does not
support a finding that Dorsey waived the conflict of interest. Thus, we reverse and
remand for a new trial.

REVERSED AND REMANDED.

FEW, C.J., and HUFF and WILLIAMS, JJ., concur.