         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT NASHVILLE         FILED
                      FEBRUARY 2000 SESSION
                                                 March 31, 2000

                                               Cecil Crowson, Jr.
                                              Appellate Court Clerk
MICHAEL ALLEN HAMLIN,           )
                                )    NO. M1999-00936-CCA-R3-PC
      Appellant,                )
                                )    MARSHALL COUNTY
VS.                             )
                                )    HON. L. CRAIG JOHNSON,
STATE OF TENNESSEE,             )    JUDGE
                                )
      Appellee.                 )    (Post-Conviction)



FOR THE APPELLANT:                   FOR THE APPELLEE:

HERSHELL D. KOGER                    PAUL G. SUMMERS
131 N. 1st Street                    Attorney General and Reporter
P.O. Box 1148
Pulaski, TN 38478                    MARVIN E. CLEMENTS JR.
                                     Assistant Attorney General
                                     Cordell Hull Building, 2nd Floor
                                     425 Fifth Avenue North
                                     Nashville, TN 37243-0493

                                     WILLIAM MICHAEL McCOWN
                                     District Attorney General

                                     WEAKLEY E. BARNARD
                                     Assistant District Attorney General
                                     Marshall County Courthouse
                                     Lewisburg, TN 37091




OPINION FILED:



AFFIRMED



JOE G. RILEY, JUDGE
                                     OPINION


       The petitioner, Michael Allen Hamlin, appeals the Marshall County Circuit

Court's denial of his petition for post-conviction relief arising from his 1998

convictions for eight counts of aggravated burglary, Class C felonies. The sole

issue is whether petitioner was deprived of effective assistance of counsel at the

time of entry of his guilty plea, due to an alleged conflict of interest arising from

counsel’s joint representation of petitioner and his co-defendant. Based upon our

review of the record, we conclude no conflict of interest existed. Thus, the judgment

of the trial court is AFFIRMED.



                        I. PROCEDURAL BACKGROUND

                            A. Guilty Plea Proceeding

       Trial counsel represented both petitioner and Lisa Hamlin, petitioner’s wife,

who was a co-defendant on some of the charges against petitioner. Trial counsel

was successful in negotiating an independent plea agreement for each defendant.

Under the agreement, petitioner pled guilt to eight counts of aggravated burglary,

Class C felonies, and received consecutive three-year sentences for each offense,

for an effective sentence of twenty-four years. Numerous other charges were

dismissed pursuant to the plea agreement. Although the wife’s sentence does not

appear in this record, petitioner alleges she received an eight-year sentence with

some form of alternative sentencing.



                        B. Post-Conviction Proceedings

       Petitioner timely filed a petition for post-conviction relief, claiming he was

denied effective assistance of counsel in entering his guilty plea due to the conflict

of interest that arose from counsel's joint representation of himself and his co-

defendant. At the post-conviction hearing, petitioner testified that he did not

understand trial counsel's explanation of "conflict of interest" and claimed he was




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prejudiced by counsel's joint representation. He told the court he was concerned

about his wife and was pressured into pleading guilty so that she might receive a

less severe sentence.



       Trial counsel testified that the respective agreements were not contingent

upon each other. He stated that he was able to adequately represent both of his

clients. He told the court that he informed the two that if it became necessary to "pit

one against the other," he would withdraw from representation of one or both

defendants. He claimed the defendants assured him they understood and insisted

he continue representing both of them.



       The trial court issued comprehensive written findings of fact and held there

was no conflict of interest in trial counsel's representation of petitioner and his wife.

In its order the court stated:

       [T]rial counsel adequately represented both clients to the best of his
       ability and in their best interest, and it appears he kept both clients
       informed at all stages of the case...[Trial counsel] took great care to
       explain and prevent a conflict and was ever watchful for such a
       conflict.


       This appeal followed.



                            II. STANDARD OF REVIEW



       This Court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner

has the burden to prove that (1) the attorney’s performance was deficient, and (2)

the deficient performance resulted in prejudice to the defendant so as to deprive

him of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Goad v. State, 938

S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994);

Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).




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       In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the

Supreme Court applied the two-part Strickland standard to ineffective assistance of

counsel claims arising out of a guilty plea. The Court in Hill modified the prejudice

requirement by requiring a defendant to show that there is a reasonable probability

that, but for counsel's errors, he would not have pleaded guilty and would have

insisted on going to trial. 474 U.S. at 59, 106 S.Ct. at 370; Hicks v. State, 983

S.W.2d 240, 246 (Tenn. Crim. App. 1998).



                           III. CONFLICT OF INTEREST



       Petitioner claims that the conflict of interest which resulted from trial

counsel’s dual representation of co-defendants rendered counsel’s representation

ineffective and, but for this ineffective representation, he would not have pled guilty.

In support of these allegations, petitioner relies upon Netters v. State, 957 S.W.2d

844 (Tenn. Crim. App. 1997). Petitioner argues that trial counsel had an “actual

conflict of interest;” therefore, he is entitled to a presumption of prejudice.



       Petitioner’s reliance on Netters is misplaced. We conclude there was no

“actual conflict of interest” resulting from trial counsel’s dual representation. The

mere fact counsel might have a potential conflict of interest in representing multiple

clients does not authorize a presumption of ineffective assistance of counsel.

Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); State v.

Parrott, 919 S.W.2d 60 (Tenn. Crim. App. 1995). In order for prejudice to result, an

attorney must actively represent conflicting interests. Cuyler, 446 U.S. at 349-50,

100 S.Ct. at 1718-19. “The proper focus is solely upon whether counsel’s conflict

affected counsel’s actions and the defendant’s decision.” Netters, 957 S.W.2d at

848.




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       In Netters the trial court was faced with two defendants who were both

represented by the public defender’s office. In finding defendant’s guilty plea was

not voluntarily and knowingly entered due to the conflict of interest, this Court

focused on the contingent nature of the co-defendants’ plea agreements and took

notice of defendant’s desire to go to trial versus the co-defendant’s desire to enter

a guilty plea. The Court found counsel applied inappropriate pressure to defendant

in order to protect the interest of the co-defendant. It was further undisputed that

defendant entered his guilty plea after having been advised by counsel with a

conflict of interest. Netters, 957 S.W.2d at 848.



       The circumstances surrounding trial counsel’s representation and the

petitioner’s guilty plea in the instant case are quite different. In its denial of post-

conviction relief, the trial court found that not only was petitioner adequately

informed of the potential for conflict, but he insisted that dual representation

continue.



       At the arraignment, the judge informed the two defendants that they had the

right to choose any counsel they wished to represent them, but that they should be

aware that dual representation could pose a potential conflict of interest. Both

defendants then stated that they understood the potential for conflict and wished to

proceed with trial counsel's representation.



       Neither defendant expressed a desire to proceed to trial. Therefore, trial

counsel effectively negotiated with the District Attorney’s office to arrange

independent plea agreements for each defendant. The pleas were not contingent

on the acceptance of both defendants. Any decision to plead guilty in the hopes

that his wife would receive a reduced sentence was made at the sole discretion of

the defendant and without any pressure or agreement by trial counsel, the District

Attorney or the trial court. Furthermore, petitioner testified at the post-conviction

hearing that he knew he was going to prison and wanted trial counsel to handle both



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cases. In its findings of fact the trial court concluded “it is apparent from the proof

in the record that Mr. Hamlin was well informed of his rights as a defendant, and

that he desired [trial counsel] to handle his case the way it was handled.” The

evidence clearly supports this finding.



                                 IV. CONCLUSION



       We find that nothing trial counsel did or failed to do with respect to either

defendant affected petitioner’s decision to plead guilty.         Petitioner failed to

demonstrate there were inconsistent interests at stake and did not show trial

counsel made a choice between possible alternative courses of action that proved

harmful to him. Thomas v. Foltz, 818 F.2d 476, 481 (6th Cir.) cert. denied 484 U.S.

870, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987). We find there was no “actual conflict”

in counsel’s representation of petitioner and the co-defendant. Therefore, petitioner

is not entitled to any presumption of prejudice with respect to ineffective assistance

of counsel. Nor has petitioner established that he was prejudiced by counsel’s joint

representation.



       Finding no other allegation to support petitioner’s contention that his guilty

plea was the result of ineffective assistance of counsel, we AFFIRM the judgment

of the trial court.



                                                  __________________________
                                                  JOE G. RILEY, JUDGE



CONCUR:



________________________________
THOMAS T. WOODALL, JUDGE



________________________________
JAMES CURWOOD WITT, JR., JUDGE

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