Roscoe Curtis Gatewood, Jr. v The State Of Oklahoma

C-2009-542

Filed: Sep. 24, 2010

Not for publication

Prevailing Party: Roscoe Curtis Gatewood, Jr.

Summary

Roscoe Curtis Gatewood, Jr. appealed his conviction for Trafficking in Illegal Drugs (Cocaine Base) and Using a Telephone to Facilitate Drug Trafficking. Conviction and sentence were reversed, allowing Gatewood to withdraw his guilty pleas. Judge Lumpkin dissented.

Decision

The Petition for a Writ of Certiorari on is GRANTED. The Judgment and Sentence of the district court is REVERSED and Gatewood is allowed to withdraw his pleas of guilt. Gatewood's Motion to Supplement the Record and/or for Evidentiary Hearing is GRANTED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an actual conflict of interest affecting Gatewood's lawyer's representation?
• Did the joint defense agreement between Gatewood and his co-defendant create a conflict of interest?
• Was Gatewood's guilty plea entered voluntarily and with sufficient understanding given the alleged conflict of interest?

Findings

• the writ of certiorari is granted
• the judgment and sentence of the district court is reversed
• Gatewood is allowed to withdraw his pleas of guilt
• Gatewood's motion to supplement the record is granted

C-2009-542

Sep. 24, 2010

Roscoe Curtis Gatewood, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

RICHIE A. JOHNSON, VICE PRESIDING JUDGE: Petitioner Roscoe Curtis Gatewood, Jr. entered blind pleas of guilty in the District Court of Love County, Case No. CF-2007-130, to Trafficking in Illegal Drugs (Cocaine Base), in violation of 63 O.S.Supp.2004, § 2-415, and Case No. CF-2007-131, to Using a Telephone to Cause the Commission of the Crime of Trafficking in Illegal Drugs, in violation of 13 O.S.Supp.2003, § 176.3. The Honorable John Scaggs accepted Gatewood’s pleas. Following the completion of a presentence investigation report, Judge Scaggs sentenced Gatewood to thirty-five years imprisonment for drug trafficking and ten years imprisonment for illegally using a telephone to facilitate drug trafficking and ordered Gatewood’s sentences to run concurrently. Gatewood’s timely motion, and a subsequent amendment to that motion, were denied by Judge Scaggs after a hearing. Gatewood now appeals that denial and asks this Court to issue a Writ of Certiorari allowing him to withdraw his pleas and proceed to trial.

Gatewood’s claim in his first proposition—namely that his lawyer had an actual conflict of interest that affected his representation—requires discussion and relief. Because we grant Gatewood’s petition for writ of certiorari on that claim, the remaining claims need not be addressed.

Gatewood and his girlfriend, Sammi Powell, were charged with Trafficking in Illegal Drugs and Using a Telephone To Facilitate Drug Trafficking arising out of the same incident. Gatewood retained and was represented by John Albert, and based on Albert’s advice, Powell retained and was represented by Mike Arnett, another attorney in the same firm. According to Gatewood’s unchallenged testimony, he and Powell entered into a joint defense agreement that provided neither codefendant would testify against the other. On the day Powell’s case was set for trial, however, she entered a blind plea to a reduced charge of Possession of Drugs with Intent to Distribute that was contingent on her testifying against Gatewood. The same day Powell entered her plea, Gatewood followed his lawyer’s advice and waived his right to a jury trial. Gatewood later entered blind pleas, again at the urging of his lawyer, because the deadline to enter a negotiated plea had long past—the deadline passing at a time when the parties were abiding by the joint defense agreement.

A defendant’s Sixth Amendment right to the effective assistance of counsel includes the right to be represented by an attorney who is free from conflicts of interest. See, e.g., Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981); Holloway v. Arkansas, 435 U.S. 475, 481-82, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). The right to the assistance of counsel free of conflicting interests extends to any situation in which a defendant’s counsel owes conflicting duties to the defendant and some other person. In order to prevail on an ineffective assistance of counsel claim based upon conflict of interest, a defendant who raised no objection at trial need not show prejudice but must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. Cuyler v. Sullivan, 466 U.S. 335, 349-50, 100 S.Ct. 1708, 1718-19, 64 L.Ed.2d 333 (1980); Allen v. State, 1994 OK CR 30, ¶ 12, 874 P.2d 60, 63. Once an actual conflict and an adverse effect are shown, a defendant need not demonstrate prejudice in order to obtain relief.

Requiring or permitting a single attorney (or two attorneys from the same firm) to represent codefendants in a criminal case is not a per se violation of the constitutional guarantees of effective assistance of counsel. While a possible conflict inheres in almost every instance of multiple representation, there is no precise test as to when the possible conflict of interest inherent in dual or multiple representation will become an actual conflict of interest. Under Oklahoma’s Rule 1.10, Rules of Professional Conduct, Title 5, Ch. 1, App. 3-A (2010) discussing the imputation of conflicts of interest among lawyers associated in a firm, however, attorneys in the same firm are prohibited from representing clients who have conflicting interests.

The potential conflict in this case ripened into an actual conflict once Powell, along with her attorney, abandoned the joint defense agreement not to testify against Gatewood and entered a plea the acceptance and fulfillment of which was contingent upon her testimony, if necessary, against Gatewood. This plea decision advanced Powell’s cause at Gatewood’s expense and left Gatewood with severely diminished options. The interests once unified among clients and lawyers diverged once Powell changed course and entered a plea beneficial to her and adverse to Gatewood. Counsel could not fulfill duties to both Gatewood and his codefendant under these circumstances. The joint representation by two members of the same firm, owing loyalty to both clients, adversely affected Gatewood’s representation.

The writ of certiorari is granted and Gatewood is allowed to withdraw his pleas of guilt.

DECISION

The Petition for a Writ of Certiorari is GRANTED. The Judgment and Sentence of the district court is REVERSED and Gatewood is allowed to withdraw his pleas of guilt. Gatewood’s Motion to Supplement the Record and/or for Evidentiary Hearing is GRANTED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 1 The prosecutor agreed to dismiss the other charge against Powell.
2. 2 Wood U. Georgia, 450 U.S. 261, 268-72, 101 S.Ct. 1097, 1101-03, 67 L.Ed.2d 220 (1981); Allen U. State, 1994 OK CR 30, q 11, 874 P.2d 60, 63.
3. 3 Cuyler U. Sullivan, 466 U.S. 335, 349-50, 100 S.Ct. 1708, 1718-19, 64 L.Ed.2d 333 (1980); Allen U. State, 1994 OK CR 30, II 12, 874 P.2d 60, 63.
4. 4 Rule 1.10. Imputation of Conflicts of Interest: General Rule (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9 unless the prohibition is based on a personal interest of the prohibited lawyer and does not represent a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm. (b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless: (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9 (c) that is material to the matter. (c) A disqualification prescribed by this rule may be waived in writing by the affected client under the conditions stated in Rule 1.7. (d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11. (e) Where a lawyer is prohibited from engaging in certain transactions under Rule 1.8, paragraph (k) of that Rule, and not this Rule, determines whether that prohibition also applies to other lawyers associated in a firm with the personally prohibited lawyer.
5. 5 Gatewood filed a motion to supplement the record with, among other things, the plea hearing for his co-defendant. The court's acceptance of her plea to a reduced charge of possession with intent to distribute and dismissal of count 2 was contingent on her testifying against Gatewood should it be necessary. This material is necessary to resolve this issue and Gatewood's motion to supplement the record is GRANTED.
6. 6 Burnett v. State, 1988 OK CR 161, IT 12, 760 P.2d 825, 828, citing Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).
7. 7 Estell v. State, 1988 OK CR 287, IT 7, 766 P.2d. 1380, 1382.

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-415 - Trafficking in Illegal Drugs
• Okla. Stat. tit. 13 § 176.3 - Using a Telephone to Cause the Commission of a Crime
• Okla. Stat. tit. 22 § 3.15 - Rules of the Oklahoma Court of Criminal Appeals

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981)
• Holloway v. Arkansas, 435 U.S. 475, 481-82, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)
• Allen v. State, 1994 OK CR 30, ¶ 11, 874 P.2d 60, 63
• Cuyler v. Sullivan, 466 U.S. 335, 349-50, 100 S.Ct. 1708, 1718-19, 64 L.Ed.2d 333 (1980)
• Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)
• Ross v. State, 1992 OK CR 18, ¶ 8, 829 P.2d 58, 61
• Burnett v. State, 1988 OK CR 161, ¶ 12, 760 P.2d 825, 828
• Estell v. State, 1988 OK CR 287, ¶ 7, 766 P.2d 1380, 1382