Heard December 8, 2014.
Appeal From Spartanburg County. Roger L. Couch, Circuit Court Judge. Appellate Case No. 2011-190809.
Appellate Defender Susan Barber Hackett, of Columbia, for Petitioner.
Attorney General Alan McCrory Wilson and Assistant Deputy Attorney General Suzanne Hollifield White, both of Columbia, for Respondent.
[412 S.C. 483]ON WRIT OF CERTIORARI
In this post-conviction relief (PCR) action, Michael Gonzales argues the PCR court erred in finding trial counsel was not ineffective for continuing to represent him despite a conflict of interest. We affirm.
In June 2002, a grand jury indicted Gonzales for trafficking in methamphetamine. In July 2002, a jury convicted Gonzales of trafficking in methamphetamine, and the trial court sentenced him to thirty years' imprisonment and ordered him to pay a two-hundred-thousand-dollar fine. Gonzales filed a direct appeal, and this court affirmed the sentence and conviction. See State v. Gonzales, 360 S.C. 263, 600 S.E.2d 122 (Ct.App. 2004), overruled by State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005). The supreme court denied Gonzales's petition for a writ of certiorari.
Gonzales filed an application for PCR, alleging trial counsel had a conflict of interest because he also represented Dino Perez. At the PCR hearing, trial counsel testified that in [412 S.C. 484] 2001 he represented Perez on several misdemeanor drug charges resulting in the forfeiture of cash. Trial counsel testified Lucy Santana, Gonzales's mother and " Perez's close personal friend," did all the consulting with him regarding Perez's charges because " Perez could not himself [go] into the office because he worked every day and he did not speak very much English." Santana also paid trial counsel's fee for representing Perez.
Trial counsel testified that in January 2002, Santana paid him $25,000 to represent Gonzales in the marijuana trafficking action. Trial counsel stated that in April 2002, Perez was arrested for the same crime, trafficking more than one thousand pounds of marijuana. Trial counsel stated he visited Perez in jail and thereafter agreed to represent him on his trafficking in marijuana charges while simultaneously representing Gonzales. Trial counsel testified his notes indicated Santana again made arrangements to pay his $25,000 fee for representing Perez on the matter.
Trial counsel testified that in June 2002 he was asked to represent Gonzales in the methamphetamine action. He testified Perez paid $3,220 of the $25,000 fee. Trial counsel explained he and Perez reached an agreement whereby trial counsel would take a portion of the money he had recovered for Perez in the 2001 action as part of his fee for representing Gonzales in his pending methamphetamine action. Trial counsel stated the remaining balance was paid by a check from J & M Contractors (J & M). Trial counsel was unsure if J & M was the employer of Gonzales, Santana, or Perez but stated he thought J & M was one of their employers.
Trial counsel contended he did not know Santana, Perez, and Gonzales were family at the time Perez paid a portion of Gonzales's fees. However, he acknowledged he did not know [412 S.C. 485] what relationship Perez had with Gonzales that would make Perez inclined to pay part of the fee for Gonzales's defense. Trial counsel testified, " I was aware, at the time that I began representing . . . Gonzales on the methamphetamine charges, that . . . Santana was his mother[ and] that . . . Perez was either . . . Santana's boyfriend or friend or ex-boyfriend or friend. I--that was the extent of my knowledge about their personal relationships." He further explained,
I somehow want to think that at some point in time . . . Santana told me that . . . Perez was either her boyfriend or her friend, and I want to think -- my, my impression was they had some kind of romantic relationship, but I mean I didn't, maybe
I should [have], I didn't see any need to go into vast detail with . . . Santana about the, her personal relationship with . . . Perez.
Trial counsel stated he did not initially consult with Gonzales or Perez regarding waiving the potential conflict of interest. He stated, " [A]s plain as I can put it, I--if a conflict existed, either actual or potential, I did not recognize it at that time." When asked if he recalled ever speaking with Gonzales about his relationship with Perez, trial counsel responded,
I don't specifically recall asking . . . Gonzales [" ]are you in a drug conspiracy with . . . Perez[?" ] I, I didn't have any reason to ask that. And you know, I have to just say again, if a potential or actual conflict existed, I, I did not appreciate it. I failed to, to, to apprehend that fact. I - - that's all I can say. I . . . didn't see any reason to go to my client and, and, and interview him on the subject of who are you in a drug conspiracy with.
When asked if he ever thought to investigate the connection between Perez and Gonzales given that (1) Gonzales was only seventeen at the time of his charges; (2) Gonzales and Perez were both charged with the same crime--trafficking in a large quantity of marijuana within the same small geographical region--within a relatively short period of time; and (3) trial counsel's attorney's fees for representing Perez and Gonzales were being paid by either Perez or Santana or both, trial counsel explained,
No, I, I -- maybe I should [have]. Although I can say, at the time, given everything that I knew, the only thing I knew [412 S.C. 486] that . . . Gonzales and . . . Perez had in common was . . . Santana. It, it is not uncommon, at least in my experience not uncommon, that individuals that are related to one another or friends with one another, whatever degree of personal relationship they, they have, often wind up in trouble and, and often in the same kind of trouble, but that doesn't mean it's the same trouble.
Trial counsel also testified his dual representation did not have any effect on his representation of Gonzales at trial. He stated he " tried the cases just as hard and the same way [he] would have no matter who [he] represented otherwise."
Trial counsel testified Perez's trafficking in marijuana charges were originally pending in state court but because of the nature of the charges were subsequently taken over by the federal government and became the subject of a federal prosecution. Trial counsel testified
I was not aware of [and] did not appreciate, if any existed, any connection to and was never told directly in anyway prior to the trial of . . . Gonzales on methamphetamine trafficking charges that there was any connection at all between . . . Gonzales's marijuana trafficking case and . . . Perez's marijuana trafficking case. . . . I was led to believe it was two totally separate unrelated occurrences[ by] the discovery in the case . . . .
Trial counsel further asserted, " I had no information whatsoever, no inkling whatsoever, and was never given any information by the government or anybody else that led me to believe that there was any connection whatsoever [between the two marijuana trafficking cases]."
Trial counsel testified he did not recall law enforcement ever consulting him about the possibility of having Gonzales testify against Perez in exchange for a lesser sentence or negotiating a plea. Further, he stated Gonzales did not discuss with him information concerning Perez that may have been valuable in plea negotiations. Trial counsel stated that after trial, Gonzales actually denied having information about Perez. Trial counsel stated,
[A]fter consultation with several experts in the field, I went with [an associate to visit Gonzales] and asked him the question directly and told him he need not do anything [412 S.C. 487] other than tell me the truth, and he denied that there was any connection, and denied it in the context ...