                        COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Frank and Senior Judge Bray
Argued at Chesapeake, Virginia


WILLIE DERWOOD DILLARD
                                           MEMORANDUM OPINION * BY
v.   Record No. 0679-02-1                   JUDGE RICHARD S. BRAY
                                                APRIL 8, 2003
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                       Jerome James, Judge

          Brett D. Lucas (Gabriel & Associates, P.C.,
          on briefs), for appellant.

          Stephen R. McCullough, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Willie Derwood Dillard, defendant, was convicted by the trial

court upon his plea of guilty to indictments charging that he "did

feloniously and maliciously shoot at an . . . occupied dwelling,"

the related use of a firearm and aggravated malicious wounding.

Defendant contends the court unconstitutionally denied

post-conviction motions to permit both withdrawal of his counsel

and the guilty pleas.    Finding no error, we affirm the trial

court.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                              Background

     On October 9, 2001, defendant appeared before the trial

court, accompanied by retained counsel, and entered Alford pleas

of guilty to the several indictments.      See North Carolina v.

Alford, 400 U.S. 25 (1970).    The court engaged defendant in the

customary colloquy, and the Commonwealth then proceeded, without

objection, to summarize the evidence.      The court thereafter

conducted a further colloquy with defendant, during which he

acknowledged the summary "would have been the Commonwealth's

evidence" and confirmed a written plea agreement with the

Commonwealth, executed by him with the advice and counsel of his

attorney.    Determining the "Alford guilty pleas . . . freely,

voluntarily and intelligently entered," the court proceeded to

find defendant guilty of the offenses and scheduled sentencing for

December 14, 2001.

     Post-conviction, on November 6, 2001, the defense attorney

moved the court for "leave to withdraw as counsel," citing an

unspecified "conflict of interest," and, additionally, to "allow

the withdrawal of [defendant's] guilty plea [sic]."     During a

hearing on the motion to withdraw as counsel, conducted on

November 26, 2001, counsel represented to the court that, after

numerous meetings with defendant, "we . . . negotiated" the plea

agreement.   However, when defendant subsequently decided to

withdraw the attendant Alford pleas, counsel found himself



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"conflicted" and convinced "another attorney could represent

[defendant] better" on the pending motion to withdraw the pleas.

Counsel further proffered to the court that defendant, "feel[ing]

misled" by his advice relative to an unspecified suppression

motion and "misinformed" with respect to his right to a jury

trial, had accused him of acting "unethically."   Confronted with a

"radically different" view of the case, counsel declared, "I can't

help [defendant] any further." 1

     Upon consideration of the motion and arguments, including

related objections of the Commonwealth, the court concluded that

counsel "was in the best position to argue the [pending] motion"

to withdraw the guilty pleas and denied the motion to withdraw,

"at this point in time."

     On December 10, 2001, the court conducted a hearing on the

remaining motion to withdraw the Alford pleas.    Defendant then

testified, asserting he was "pressured" into entering the pleas

by the advice of "the deputies" and counsel that the plea

agreement was in his best interest.    However, defendant also

acknowledged his earlier assurances to the court during the

colloquies that he had not been pressured or coerced into the




     1
       Neither counsel nor defendant offered to present evidence
at the hearing, relying, instead, upon the representations of
counsel.




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pleas, was satisfied with the services of counsel and had

truthfully answered the court's inquiries.

                            Analysis

     Defendant contends his Sixth Amendment right to a counsel

of choice was violated when the trial court denied the

attorney's motion to withdraw.    Defendant reasons that, because

counsel had advised him to enter the Alford pleas, it was now

"impossible" for the attorney to effectively pursue withdrawal

of the pleas without "prejudicing" himself, a patent "conflict

of interests."

     A motion for withdrawal of counsel is addressed to the

sound discretion of the trial court.     Payne v. Commonwealth, 233

Va. 460, 473, 357 S.E.2d 500, 508 (1987).    However, the Sixth

Amendment to the United States Constitution guarantees an

accused the effective assistance of counsel, which includes the

right to representation free from conflicts of interest.     See

Cuyler v. Sullivan, 446 U.S. 335, 345-50 (1980).

               An actual conflict of interest exists
          where counsel has responsibilities to other
          clients or personal concerns that are
          actively in opposition to the best interests
          of the defendant. An actual conflict may
          arise, for example, in the circumstance of
          counsel's representation of more than one
          defendant in connection with the same
          criminal charge, or where a defendant's
          counsel has a professional relationship with
          the prosecution.




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Moore v. Hinkle, 259 Va. 479, 489, 527 S.E.2d 419, 424 (2000)

(citations omitted).    Generally, personality differences between

attorney and client do not constitute a conflict of interest

cognizable in law.     Hale v. Gibson, 227 F.3d 1298, 1313 (10th

Cir. 2000).   Similarly, disagreement with respect to motions or

trial strategy "does not give rise to a conflict of interest

between the defendant and his attorney."     United States v.

White, 174 F.3d 290, 296 (2d Cir. 1999).    Significantly, "[t]he

possibility of a conflict of interest does not necessarily

impinge on a defendant's constitutional rights.    Rather, the

defendant must show that an actual conflict of interest existed

and the conflict prejudiced counsel's performance."     United

States v. Smith, 113 F. Supp. 2d 879, 913-14 (E.D. Va. 1999)

(citing Cuyler, 446 U.S. at 346).

     Here, defendant has failed to demonstrate an actual

conflict of interest between his counsel and himself.    Clearly,

the record discloses no responsibilities of counsel to other

clients or personal concerns that compromised defendant's best

interests.    Moreover, the evidence does not evince a divergence

of interests between defendant and his attorney with respect to

a factual or legal issue or the performance of counsel that

threatened defendant's cause.

     To the contrary, the record reflects that, before tendering

the Alford pleas of guilty at trial, defendant conferred with



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his counsel on several occasions to discuss the pending charges,

attendant trial and related issues.    Defendant assured the court

that he was satisfied with the services of his attorney, was

convinced the Commonwealth could prove the evidence as

summarized, and concurred in the plea agreement.   He affirmed

his decision to enter the Alford pleas freely and voluntarily,

recited the maximum punishments for each offense and declared

his understanding that the court was not bound by the terms of

the agreement in fixing punishment.    As a result, the court

accepted the pleas, expressly finding defendant acted "freely,

voluntarily and intelligently."   Such circumstances manifested

no conflict of interest by counsel in support of the motion to

withdraw.

     Similarly, defendant's testimony at the later hearing on

the companion motion to withdraw the pleas, characterizing as

coercive the advice of counsel that the plea agreement served

defendant's best interests, evinces no conflict.   The "blunt

rendering of an honest but negative assessment of [defendant's]

chances at trial, combined with advice to enter the plea, [does

not] constitute improper behavior or coercion that would suffice

to invalidate a plea."   United States v. Juncal, 245 F.3d 166,

172 (2d Cir. 2001).

     Defendant's final assertion that the trial court failed to

properly inquire into the particulars of the motion to relieve



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his counsel is also without merit.    The trial court, in denying

the motion "at [the] point in time" of the related hearing,

implicitly reserved the issue for further consideration at the

forthcoming hearing on defendant's motion to withdraw the pleas.

The record from the later hearing, including testimony of

defendant relevant to both motions, fully developed the

pertinent evidence and does not suggest that denial of the

motion to relieve counsel had "clearly impacted" defendant's

ability to effectively argue the motion to withdraw the pleas.

     We, therefore, find neither an abuse of discretion by the

trial court nor infringement upon defendant's constitutional

guarantees resulted from a denial of the motion for withdrawal

of counsel and affirm the convictions.

                                                          Affirmed.




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