September 21, 2016
OF CERTIORARI TO THE COURT OF APPEALS
from Spartanburg County Roger L. Couch, Post-Conviction
Appellate Defender Susan Barber Hackett of Columbia, for
Attorney General Alan McCrory Wilson and Assistant Attorney
General Alicia A. Olive, both of Columbia, for Respondent.
PLEICONES ACTING JUSTICE.
was convicted of trafficking in 400 grams or more of
methamphetamine. He was sentenced to thirty years'
imprisonment, and his conviction and sentence were affirmed
on direct appeal. State v. Gonzales, 360 S.C. 263,
600 S.E.2d 122 (Ct. App. 2004). Petitioner then filed this
post-conviction relief ("PCR") action, arguing his
trial counsel had a conflict of interest which adversely
affected trial counsel's performance. The PCR judge
denied relief, and in a split decision, the Court of Appeals
affirmed the PCR judge's order. Gonzales v.
State, 412 S.C. 478, 772 S.E.2d 557 (Ct. App. 2015).
Because we find the Court of Appeals erred in affirming the
PCR judge's order denying petitioner relief, we reverse
the denial of petitioner's application for PCR.
who was a juvenile, lived with his mother and her longtime
boyfriend, Dino Perez. In 2001, at the request of
petitioner's mother, trial counsel successfully
represented Perez in a drug related forfeiture action. Less
than a year later, in January 2002, petitioner was arrested
for trafficking in marijuana over one thousand pounds. At the
request of petitioner's mother, trial counsel agreed to
represent petitioner on the trafficking charge. Three months
later, in April 2002, Perez was also arrested for trafficking
in marijuana in excess of one thousand pounds. At the request
of petitioner's mother, trial counsel agreed to also
represent Perez on his trafficking charge.
2002, petitioner was arrested on the charge of trafficking in
methamphetamine-the conviction which petitioner challenged at
the PCR proceeding leading to the case now before this Court.
Trial counsel agreed to represent petitioner on the
trafficking in methamphetamine charge. Thus, as of June 2002,
trial counsel was simultaneously representing petitioner on
his trafficking in marijuana and trafficking in
methamphetamine charges, as well as representing Perez on his
trafficking in marijuana charge.
month later, in July 2002, while petitioner's and
Perez's respective trafficking in marijuana charges were
still pending, petitioner was tried and convicted on his
trafficking in methamphetamine charge. Petitioner received a
thirty year sentence, and hired a different attorney to
represent him on his direct appeal ("appellate
uncontroverted that prior to petitioner's July 2002 trial
for trafficking in methamphetamine, trial counsel knew: (1)
petitioner was a juvenile; (2) petitioner's mother had
approached him twice to represent petitioner, and twice to
represent Perez; (3) petitioner and Perez had each been
arrested on separate charges- trafficking in marijuana in
excess of one thousand pounds-in the same geographical area
within a three month period; (3) petitioner's mother had
paid the $50, 000 attorney's fees for representation of
both petitioner's and Perez's trafficking in
marijuana charges; (4) when petitioner's mother was
"trying to find money" to pay the additional $25,
000 attorney's fee for petitioner's trafficking in
methamphetamine charge, trial counsel discussed with
petitioner's mother using the money he had assisted Perez
in recovering in his 2001 forfeiture action; (5) a check
written from Perez's account for $3, 220 was used to pay
part of the attorney's fee in petitioner's
trafficking in methamphetamine case; and (6) the remainder
was paid by J&M Contractors.
all such indicators, trial counsel testified he never
recognized the potential for a conflict of interest.
Therefore, prior to petitioner's July 2002
methamphetamine trial, trial counsel never discussed with
petitioner or Perez the potential for a conflict of interest
or sought a waiver by either client. Trial counsel also never
discussed with petitioner that his attorney's fees were