OH3: Defense counsel had a conflict representing both passenger and driver as soon as their defenses diverged at suppression hearing when plea offer made to passenger

Defense counsel representing both the driver and passenger of a car had a conflict of interest because it was obvious they had conflicting defenses to the charge. State v. Smith, 2012 Ohio 5020, 2012 Ohio App. LEXIS 4397 (3d Dist. October 29, 2012):

[*P30] Under these circumstances, we do not see how one attorney could legitimately claim to give effective and impartial advice to serve both Defendants. It may have been different if Smith declined to accept the plea agreement because she professed her innocence, or if she was reluctant to testify against Brooks because of some sense of loyalty or fear of reprisal. However, Smith had already signed a confession admitting her guilt and implicating Brooks.

[*P31] If Smith’s counsel would have successfully pursued this plea offer on Smith’s behalf, the result would have detrimentally affected Brooks. See Moss, supra. As such, the existence and the terms of this plea offer establish that Smith’s counsel “actively represented conflicting interests,” and that the conflict “actually affected the adequacy of his representation.” See State v. Gillard, 78 Ohio St.3d at 552. Based on the facts in this case, Smith’s constitutional rights to effective and conflict-free representation of counsel were denied her at the plea bargaining stage.

[*P32] This Court has also recognized the trial court’s duty to conduct an inquiry into a possible conflict of interest to determine whether a defendant would receive the right to conflict free counsel guaranteed him by the Sixth Amendment to the United States Constitution. State v. Johnson, 185 Ohio App.3d 654, 2010 Ohio 315 ¶¶ 3-4 (3d.Dist), citing to Gillard. In Johnson, a review of several seminal United States Supreme Court cases clearly demonstrated that where a trial court knows or reasonably should know of an attorney’s possible conflict of interest in the representation of a person charged with a crime, the trial court has an affirmative duty to inquire whether a conflict of interest actually exists. Johnson, at ¶ 3, quoting Gillard, 64 Ohio St.3d at 309-312. When “a trial court breaches its affirmative duty to inquire, a criminal defendant’s rights to counsel and to a fair trial are impermissibly imperiled and prejudice or ‘adverse effect’ will be presumed.” Id.