Arnulfo Campos Gonzales v The State Of Oklahoma

F-2018-989

Filed: Jan. 8, 2020

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

# Arnulfo Campos Gonzales appealed his conviction for trafficking illegal drugs and conspiracy to traffic methamphetamine. Conviction and sentence were affirmed for Counts 1 and 2, but Count 3 was dismissed. Judge Kuehn dissented.

Decision

The Judgment and Sentence of the district court on Counts 1 and 2 is AFFIRMED. The Judgment and Sentence of the district court on Count 3 is REMANDED to the district court with instructions to DISMISS. Gonzales's Application for Evidentiary Hearing is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• was there a denial of effective assistance of counsel due to a conflict of interest?
• did the appellant suffer double punishment for his convictions and sentences in Counts 2 and 3?
• did the search of the appellant's car producing the drug evidence violate the Fourth Amendment?
• were the jury instructions erroneously provided regarding the elements of conspiracy?
• did the defense counsel render ineffective assistance of counsel?
• did the district court abuse its discretion in ordering the appellant's sentences to be served consecutively?

Findings

• the court did not err regarding effective assistance of counsel based on a conflict of interest
• the court determined multiple punishments were inappropriate and dismissed Count 3
• the evidence obtained from the search did not violate the Fourth Amendment
• the jury instructions regarding conspiracy were sufficient and did not constitute error
• Gonzales's claim of ineffective assistance of counsel was denied as he could not show prejudice
• the district court did not abuse its discretion in ordering consecutive sentences

F-2018-989

Jan. 8, 2020

Arnulfo Campos Gonzales

Appellant

v

The State Of Oklahoma

Appellee

OPINION

ROWLAND, JUDGE: Appellant Arnulfo Campos Gonzales appeals his Judgment and Sentence from the District Court of Haskell County, Case No. CF-2017-197, for Trafficking in Illegal Drugs (Count 1), in violation of 63 O.S.Supp.2015, § 2-415, Conspiracy to Traffic Methamphetamine (Count 2), in violation of 21 O.S.2011, § 421, and Conspiracy to Distribute Methamphetamine (Count 3), in violation of 21 O.S.2011, § 421. The Honorable Brian C. Henderson, Associate District Judge, presided over Gonzales’s jury trial and sentenced him, in accordance with the jury’s verdict, to twenty-five years imprisonment on Count 1, and ten years imprisonment on each of Counts 2 and 3. Judge Henderson ordered the sentences to be served consecutively.

Gonzales raises the following issues on appeal: (1) whether he was denied effective assistance of counsel because of a conflict of interest; (2) whether he suffered double punishment for his convictions and sentences in Counts 2 and 3; (3) whether the search of his car producing the drug evidence violated the Fourth Amendment; (4) whether his jury was erroneously instructed on the elements of conspiracy; (5) whether defense counsel rendered ineffective assistance of counsel; and (6) whether the district court abused its discretion in ordering his sentences to be served consecutively. We find relief is not required and affirm the Judgment and Sentence of the district court on Counts 1 and 2. Count 3, however, requires dismissal for the reasons discussed in Proposition 2, infra.

1. Conflict of Interest

Gonzales claims he was denied his Sixth Amendment right to effective assistance of counsel. He contends that defense counsel operated under an actual conflict of interest because he had previously represented his co-defendant/co-conspirator, Samantha Johnson, who testified for the prosecution after entering a guilty plea under defense counsel’s representation. Gonzales insists that an actual conflict existed because of his and Johnson’s adverse positions and that he need not show the conflict adversely affected counsel’s representation because he objected to defense counsel’s representation at trial. He asks this Court to vacate his Judgment and Sentence and remand the matter to the district court for a new trial with conflict-free counsel or, alternatively, to remand the matter for an evidentiary hearing to determine whether an actual conflict existed and whether he was prejudiced by the conflict.

The record shows that between the direct and cross-examination of the prosecution’s first witness, defense counsel made a record on Gonzales’s dissatisfaction with his representation. On the heels of defense counsel’s record, the prosecutor made a record concerning her witness, Samantha Johnson. The prosecutor noted that both attorneys had spoken with Johnson and that the prosecution anticipated that Johnson would implicate Gonzales in the conspiracy the State alleged against him. The prosecutor inexplicably chose that moment in the midst of trial to make sure that there’s no conflict, or anything, with respect to the fact that these two were both represented by [defense counsel] but she has since pled. Defense counsel stated that he had spoken to Johnson and disagreed that her anticipated testimony would implicate his client in a conspiracy. The prosecutor countered that she and others were fairly certain that Johnson would in fact implicate Gonzales. The district court stated that Johnson’s testimony was likely susceptible to different interpretations and asked defense counsel whether he was comfortable that there was no conflict. Defense counsel stated he was comfortable and the district court considered the potential conflict matter settled.

In Holloway v. Arkansas, 435 U.S. 475, 488 (1978), the Court held that whenever a trial court improperly requires joint representation over timely objection, reversal is automatic. The Court stressed that the evil in cases of joint representation of conflicting interests is in what the advocate finds himself compelled to refrain from doing. Holloway, 435 U.S. at 490. In Cuyler v. Sullivan, 446 U.S. 335 (1980), the Court discussed potential, rather than actual, conflicts which inhere in almost every instance of multiple representation, concluding that the defendant who raises no objection at trial to multiple representation must have the opportunity to show that potential conflicts adversely affected his right to a fair trial.

Conflict of interest cases frequently involve multiple representation of co-defendants with conflicting interests at a single trial. The right to assistance of counsel free of conflicting interests, however, is not limited to such cases. That guarantee extends to any situation in which a defendant’s counsel owes conflicting duties to the defendant/client and some other person. Wood v. Georgia, 450 U.S. 261 (1981); United States v. Winkle, 722 F.2d 605 (10th Cir. 1983); Allen U. State, 1994 OK CR 30.

It is generally accepted that an actual conflict would arise where defense counsel is unable to cross-examine a government witness effectively because the attorney had also represented the witness. The record shows that Gonzales was dissatisfied with defense counsel for several reasons, but defense counsel’s prior representation of Johnson in this matter was not one of them. Therefore, in order for Gonzales to obtain relief based on this claim, he must show that his attorney’s previous representation of Johnson adversely affected the adequacy of his representation.

We must be mindful in our analysis of the difference between an actual conflict versus merely a potential conflict. An actual conflict of interest exists where the interests of an attorney and a defendant diverge with respect to a material factual or legal issue or to a course of action. Livingston v. State, 1995 OK CR 68. A mere possibility of a conflict of interest is insufficient to reverse a criminal conviction. Gonzales maintains that an actual conflict arose when Johnson entered a guilty plea to conspiring with Gonzales. She admitted guilt to being a party to an agreement with Gonzales to distribute/traffic drugs while he maintained his innocence ostensibly putting their positions at odds. The potential for conflict was undoubtedly present. Nevertheless, defense counsel’s representation of Johnson during her guilty plea did not result in an actual conflict because Johnson’s admission during that proceeding was of no consequence to counsel’s representation of Gonzales.

The more difficult question is whether an actual conflict arose when defense counsel had to cross-examine Johnson as a witness for the prosecution during Gonzales’s trial. This Court has found no actual conflict where defense counsel represented persons who pled guilty to charges arising out of the same criminal episode as the appellant, and then became a key prosecution witness against the appellant. The determinative inquiry is whether defense counsel was precluded from effectively examining his former client turned government witness because of information protected by the attorney-client relationship. There is no evidence in this record to support a finding that defense counsel was limited or otherwise compromised in his examination of Johnson because of his prior representation. Gonzales neither identifies any action by counsel to demonstrate his examination of Johnson was hindered by his former representation of her, nor has he shown that counsel actively represented conflicting interests during trial warranting reversal.

The record shows that Johnson was not a strong witness for the prosecution and she vacillated during her testimony on the likelihood Gonzales knew there were any drugs in his car. She knew of no direct evidence implicating him. Gonzales anticipates this Court may find only the appearance of a conflict because of an absence of evidence establishing his attorney’s examination of Johnson was compromised. Accordingly, he asks this Court for an evidentiary hearing to investigate whether an actual conflict existed and whether he was prejudiced by the conflict.

The sole attachment to the motion is an affidavit from appellate counsel, expressing unspecified concerns that defense counsel was operating under an actual conflict of interest. This Court will order an evidentiary hearing only if the application and affidavits contain sufficient information to show this Court by clear and convincing evidence [that] there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence. Gonzales’s burden is a demanding one and the affidavit does not persuasively show that defense counsel had a conflict of interest.

The trial record shows that defense counsel adequately represented Gonzales at all phases of the trial and cross-examined Johnson thoroughly when she testified. Because the record fails to establish clear and convincing evidence of a strong possibility that defense counsel was ineffective because of an actual conflict of interest, Gonzales’s motion for an evidentiary hearing, as well as his claim of ineffective assistance of counsel, are denied.

2. Multiple Punishment

Gonzales claims he was punished twice for the same act when he was sentenced for two counts of conspiracy. He contends that his possession of the same methamphetamine served as the basis for the charges of conspiracy to traffic in illegal drugs and conspiracy to distribute methamphetamine in Counts 2 and 3. According to Gonzales, the evidence showed but one agreement/plan among the alleged conspirators concerning the methamphetamine. Therefore, the conspiracies were not separate and distinct and his convictions/sentences on Counts 2 and 3 violate the statutory prohibition against multiple punishments for the same act.

The State defends the two sentences for Counts 2 and 3 by arguing that the conspiracy to traffic was complete when Gonzales agreed to take packages of methamphetamine in excess of twenty grams to Stigler and that the conspiracy to distribute occurred once Gonzales met with known drug sellers, Penny Chavez and Sharon Stevens, in Stigler, Oklahoma. This issue was preserved for review. At sentencing, defense counsel argued that the two counts of conspiracy should merge because the two conspiracies were part and parcel of a single agreement to distribute methamphetamine in excess of twenty grams and therefore the two conspiracies should be treated as one crime.

The district court found the issue a close call, but ultimately sided with the prosecution and sentenced Gonzales to ten years on each count of conspiracy to run consecutively with each other. We analyze claims raised under Section 11 by focusing on the relationship between the crimes, considering: (1) the particular facts of each case; (2) whether the facts set out separate and distinct crimes; and (3) the intent of the Legislature. If the crimes truly arise out of one act, Section 11 prohibits punishing the act twice or under more than one statute.

In this case, the evidence established but one agreement with respect to the methamphetamine found in Gonzales’s car. The evidence showed that Samantha Johnson, Penny Chavez, Gonzales, and a man identified as Chuey, agreed to have Gonzales take methamphetamine supplied by Chuey in Tulsa to Stigler where Johnson and Chavez would then sell it. Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes.

The factors we reviewed in Sanders weigh in Gonzales’s favor. The prosecution relied on Gonzales’s possession of the same methamphetamine for the conspiracy to traffic illegal drugs and the conspiracy to distribute drugs. The language alleging Counts 2 and 3 in the Information provided the same time frame for both offenses and named the same conspirators. There was no genuine temporal break between the challenged conspiracies establishing separate agreements. The single agreement involved various people playing different roles and committing overt acts in furtherance of the conspiracy to peddle drugs in Stigler, Oklahoma.

Under the reasoning of Sanders, one agreement concerning the same methamphetamine resulted in two conspiracy charges and punishments for the same act of possession. Gonzales has therefore established the commission of a Section 11 violation. To remedy the error, we remand this case to the district court with instructions to dismiss Count 3.

3. Fourth Amendment

Gonzales argues that he is entitled to relief because the search of his car that produced the drug evidence violated the Fourth Amendment. He challenges the duration of the traffic stop and detention, claiming that it exceeded the purpose of the initial traffic stop rendering his consent to search involuntary. Gonzales did not challenge the stop or move to suppress the drug evidence based upon an illegal search. We review this claim for plain error only. The burden is on Gonzales in plain error review to demonstrate that an error, plain or obvious under current law, adversely affected his substantial rights.

A traffic stop is a seizure under the Fourth Amendment. The scope and duration of a traffic stop must be related to the stop and must last no longer than is necessary to effectuate the purpose of the stop (i.e., investigate the potential traffic infraction). Gonzales was a passenger in Sharon Stevens’s Suburban when she was stopped by police for a seatbelt violation. He does not challenge the validity of the initial stop. The record showed that Stevens could not produce a driver’s license and that she admitted to driving without one. The record further showed that she consented to a search of her Suburban. Gonzales maintains that he should have been free to go once the Suburban search yielded nothing illegal and his record check was clear.

The lawfulness of that search hinges on the timing of Gonzales’s consent in relation to the search of Stevens’s Suburban and the conclusion of the traffic stop’s purpose. The exact moment Gonzales gave consent was not established at trial with certainty because the legality of his consent was not contested.

Gonzales has not established that his detention exceeded the time necessary to issue the appropriate citation and complete the permissible records check. He has therefore not shown that his consent to search his car was obtained only after the purpose of the stop had ended. For these reasons, he has not established the commission of an error and his claim is therefore denied.

4. Jury Instructions

Gonzales contends the jury instructions setting forth the elements of conspiracy for Counts 2 and 3 were insufficient statements of the law under the facts of the case. According to Gonzales, the vagueness of the instruction allowed the jury to convict him based on a conspiracy he may have entered into with Chuey only to traffic or distribute methamphetamine rather than the named conspirators. Because Gonzales did not object to the challenged instructions below, review is for plain error.

Gonzales concedes: 1) that the challenged instructions conformed to the Oklahoma Uniform Jury Instructions for a charge of conspiracy; and 2) that the uniform instructions should be used unless the district court determines the particular uniform instruction does not accurately state the applicable law. Gonzales can show no error stemming from the district court’s use of the uniform instruction on the elements of conspiracy.

The district court’s instructions included a jury instruction setting forth the allegations in the Information which informed the jury that Gonzales was charged with conspiring with Johnson and Chavez for each count of conspiracy. Because the instructions, read together, sufficiently apprised the jury of the persons with whom Gonzales was charged with conspiring, he has not shown the commission of an error, plain or otherwise. This claim is denied.

5. Ineffective Assistance of Counsel

Gonzales contends he is entitled to relief because of ineffective assistance of trial counsel. This claim is without merit. This Court reviews claims of ineffective assistance of counsel to determine: (1) whether counsel’s performance was constitutionally deficient; and (2) whether counsel’s performance prejudiced the defense so as to deprive the defendant of a fair trial with reliable results. Gonzales cannot show the necessary prejudice because, as discussed above, the record does not show his detention exceeded the time necessary to issue the appropriate citation and complete the permissible records check so as to render his consent involuntary. This claim is denied.

6. Consecutive Sentences

Gonzales claims the district court abused its discretion by ordering his sentences to be served consecutively. Whether sentences will be served consecutively or concurrently is a discretionary decision made by the district court. We review those decisions when challenged on appeal only for an abuse of discretion.

Other than the lone remark of the prosecutor, there is nothing in the record showing that the court had any kind of policy concerning consecutive sentences or that it failed to exercise its discretion in deciding how Gonzales’s sentences would be served. Based on this record, we find that the district court did not abuse its discretion in ordering Gonzales’s sentences to be served consecutively and deny this claim.

DECISION

The Judgment and Sentence of the district court on Counts 1 and 2 is AFFIRMED. The Judgment and Sentence of the district court on Count 3 is REMANDED to the district court with instructions to DISMISS. Gonzales’s Application for Evidentiary Hearing is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

1. 63 O.S.Supp.2015, § 2-415
2. 21 O.S.2011, § 421
3. 21 O.S.2011, § 421
4. Holloway v. Arkansas, 435 U.S. 475, 488, 98 S.Ct. 1173, 1180, 55 L.Ed.2d 426 (1978)
5. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980)
6. Wood v. Georgia, 450 U.S. 261, 268-72, 101 S.Ct. 1097, 1101-03, 67 L.Ed.2d 220 (1981)
7. United States v. Winkle, 722 F.2d 605, 609-10 (10th Cir. 1983)
8. Allen U. State, 1994 OK CR 30, 11, 874 P.2d 60, 63
9. Ellis v. State, 1990 OK CR 43, I 11, 795 P.2d 107, 109
10. Burnett v. State, 1988 OK CR 161, 12, 760 P.2d 825, 828
11. Livingston v. State, 1995 OK CR 68, 11, 907 P.2d 1088, 1091-92
12. Braverman v. United States, 317 U.S. 49, 53 (1942)
13. Sanders U. State, 2015 OK CR 11, I 8, 358 P.3d 280, 284
14. Davis v. State, 1999 OK CR 48, I 13, 993 P.2d 124, 126
15. 21 O.S.2011, § 11
16. U.S. Const. amend. IV
17. Okla. Const. Article II, Section 30
18. State v. Strawn, 2018 OK CR 2, IT 21, 419 P.3d 249, 254
19. Seabolt v. State, 2006 OK CR 50, I 6, 152 P.3d 235, 237
20. Arizona U. Johnson, 555 U.S. 323, 327, 129 S.Ct. 781, 784, 172 L.Ed.2d 694 (2009)
21. Brendlin v. California, 551 U.S. 249, 259, 127 S.Ct. 2400, 2408, 168 L.E.d2d 132 (2007)
22. Rodriguez U. United States, 575 U.S. 348, 354, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (2015)
23. Hogan U. State, 2006 OK CR 19, I 39, 139 P.3d 907, 923
24. Mitchell v. State, 2018 OK CR 24, I 22, 424 P.3d 677, 684
25. Kamees V. State, 1991 OK CR 91, 9 21, 815 P.2d 1204, 1208-09
26. Marshall v. State, 1998 OK CR 30, I 32, 963 P.2d 1, 11

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-415 (2015) - Trafficking in Illegal Drugs
• Okla. Stat. tit. 21 § 421 (2011) - Conspiracy to Traffic Methamphetamine
• Okla. Stat. tit. 21 § 11.1 (2011) - Multiple Punishments for the Same Act
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing for Crimes
• Okla. Const. Art. II, § 30 - Unreasonable Searches and Seizures

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:

• Holloway v. Arkansas, 435 U.S. 475, 488, 98 S.Ct. 1173, 1180, 55 L.Ed.2d 426 (1978)
• Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980)
• Wood v. Georgia, 450 U.S. 261, 268-72, 101 S.Ct. 1097, 1101-03, 67 L.Ed.2d 220 (1981)
• United States v. Winkle, 722 F.2d 605, 609-10 (10th Cir. 1983)
• Allen v. State, 1994 OK CR 30, 874 P.2d 60, 63
• Ellis v. State, 1990 OK CR 43, 795 P.2d 107, 109
• Livingston v. State, 1995 OK CR 68, 907 P.2d 1088, 1091-92
• Burnett v. State, 1988 OK CR 161, 760 P.2d 825, 828
• Sheppard v. State, 1983 OK CR 143, 670 P.2d 604, 606
• Braverman v. United States, 317 U.S. 49, 53 (1942)
• Sanders v. State, 2015 OK CR 11, 358 P.3d 280, 284
• Davis v. State, 1999 OK CR 48, 993 P.2d 124, 126
• Hammick v. State, 2019 OK CR 21, 449 P.3d 1272, 1275
• State v. Strawn, 2018 OK CR 2, 419 P.3d 249, 254
• Seabolt v. State, 2006 OK CR 50, 152 P.3d 235, 237
• Arizona v. Johnson, 555 U.S. 323, 327, 129 S.Ct. 781, 784, 172 L.Ed.2d 694 (2009)
• Brendlin v. California, 551 U.S. 249, 259, 127 S.Ct. 2400, 2408, 168 L.Ed.2d 132 (2007)
• Rodriguez v. United States, 575 U.S. 348, 354, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (2015)
• Marshall v. State, 1998 OK CR 30, 963 P.2d 1, 11
• Bivens v. State, 2018 OK CR 33, 431 P.3d 985, 994
• Mitchell v. State, 2018 OK CR 24, 424 P.3d 677, 684
• Malone v. State, 2013 OK CR 1, 293 P.3d 198, 206
• Kamees v. State, 1991 OK CR 91, 815 P.2d 1204, 1208-09