               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 45972

STATE OF IDAHO,                                 )
                                                )    Filed: December 5, 2019
       Plaintiff-Respondent,                    )
                                                )    Karel A. Lehrman, Clerk
v.                                              )
                                                )    THIS IS AN UNPUBLISHED
OTIS JAMES HUGHES,                              )    OPINION AND SHALL NOT
                                                )    BE CITED AS AUTHORITY
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Steven Hippler, District Judge.

       Order denying motion to withdraw, affirmed; judgment of conviction, affirmed.

       Fyffe Law LLC; Robyn Fyffe, Boise, for appellant. Robyn Fyffe argued.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent. Kenneth K. Jorgensen argued.
                 ________________________________________________

GRATTON, Chief Judge
       Otis James Hughes appeals from the district court’s judgment of conviction for
conspiracy to traffic heroin, trafficking heroin, and possession of a controlled substance with
intent to deliver. Hughes argues that the district court erred in denying defense counsel’s motion
to withdraw. For the reasons set forth below, we affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Hughes was indicted by a grand jury for conspiracy to traffic in heroin (Idaho Code
§§ 37-2732B(a)(6)(B), 18-1701, 37-3732B(b)); three counts of trafficking in heroin (I.C.
§ 37-2732B(a)(6)); two counts of possession of a controlled substance with the intent to deliver
(I.C. § 37-2732(a)); and misdemeanor possession of drug paraphernalia (I.C. § 37-2734A). The
charges arose after officers received information that Hughes was selling heroin out of a Boise
hotel. An undercover officer purchased heroin on multiple occasions from Hughes’ codefendant

                                                1
(B.J.) in the parking lot of the hotel. During the transactions, B.J. collected payment from the
officer and went to B.J.’s supplier’s hotel room (B.J. later identified his supplier as Hughes) to
retrieve the heroin. After arresting B.J., officers obtained a warrant to search Hughes’ hotel
room.       A search revealed the presence of heroin, methamphetamine, marijuana, drug
paraphernalia, and packing materials. Thereafter, Hughes was indicted on the above-listed
crimes.
          Hughes’ and B.J.’s cases were consolidated for trial and Hughes retained private counsel
to appear on his behalf. On November 6, although he was represented by counsel, Hughes sent a
letter to the district court in which, among other things, Hughes asked various legal questions,
requested to view the search warrant himself to “make sure that it is authentic and not forged,”
and explained that he would like certain motions filed.         On November 20, the court held a
pretrial conference. At the hearing, counsel advised the court that the issues with the warrant had
been resolved and Hughes was ready to proceed to trial. At the conclusion of the conference,
Hughes chose to address the court on his own and explained that he was innocent, thought a
motion to dismiss should have been filed, was concerned with getting evidence in at trial, and
wanted to know how to send letters to the court. The district court addressed Hughes’ concerns
and asked that he speak with counsel to gain an understanding of the proceedings.
          On November 21, counsel filed a motion for leave to withdraw as Hughes’ counsel. In
support of his motion, counsel filed an affidavit which contained, in part, the following
representations:
                   6. I have reviewed his discovery with him on three separate occasions.
          The most recent being for an hour-and-a-half on Sunday, November 19, 2017, the
          day before his pre-trial conference.
                   7. During that visit I also discussed in detail with Mr. Hughes his request
          that I file a motion to suppress the search warrant in his case and provided him
          with my opinion that such a motion was frivolous and the legal reasoning behind
          it.
                   8. Despite our long meeting the day before and my explanation,
          Mr. Hughes insisted in attempting to address this issue in open court at his
          pre-trial conference on November 20, 2017.
                   9. Mr. Hughes previously attempted to communicate directly to the court
          in a letter addressed to Judge Hippler, dated November 6, 2017.
                   10. On November 20, 2017, I received a certified letter from Mr. Hughes
          which was dated November 15, 2017, in which he requests that I file a motion to
          dismiss his case based on what he describes as an “altered and fake search



                                                   2
       warrant,” [sic] He lists other grounds which he believes support a dismissal of his
       case.
               11. He states in this same letter that he is sending the letter to the Idaho
       State Bar.
               12. This letter was mailed prior to my meeting with him on November 19,
       [sic] however, Mr. Hughes [sic] insistence on addressing these same ideas to the
       Court on November 20, makes clear that he did not accept my legal advice with
       regard to the issues he raised.
               13. His contact with the State Bar, while not officially a bar complaint,
       puts me in a potentially adversarial position with my client.
               14. Mr. Hughes obviously does not have confidence in my representation
       and we are at an impasse as to what is in his best legal interest.
               15. In addition to the above, an ethical concern has arisen which I am not
       at liberty to disclose to the court, but which makes me unable to represent
       Mr. Hughes adequately at trial.
       The district court held a hearing on counsel’s motion. At the hearing, counsel further
elaborated on the reasons that he sought to withdraw. Ultimately, the district court denied
counsel’s motion to withdraw. Thereafter, the case proceeded to trial and a jury ultimately found
Hughes guilty of conspiracy to traffic in heroin, three counts of trafficking in heroin, possession
of methamphetamine with intent to deliver, and possession of drug paraphernalia. In addition,
the jury acquitted Hughes of possession of marijuana with the intent to deliver but found him
guilty of the included offense of possession of marijuana. Thereafter, counsel filed a renewed
motion to withdraw as Hughes’ attorney of record. The district court held a hearing on the
motion, granted counsel’s request, and appointed the public defender.           The district court
sentenced Hughes to an aggregate unified sentence of twenty-two years with twelve years
determinate. Hughes timely appeals.
                                                II.
                                           ANALYSIS
       Hughes argues that the district court erred in denying defense counsel’s motion to
withdraw because the district court’s decision compelled counsel to represent Hughes while
laboring under an actual conflict of interest. Specifically, Hughes argues that the district court’s
denial of the motion to withdraw violated his Sixth Amendment right to conflict-free counsel.
When a party challenges a district court’s denial on a motion to withdraw, we review the district
court’s determination for an abuse of discretion. State v. Araiza, 124 Idaho 82, 90, 856 P.2d 872,
880 (1993). The trial court’s decision will only be regarded as an abuse of discretion if it



                                                 3
violated the defendant’s right to counsel. State v. Nath, 137 Idaho 712, 715, 52 P.3d 857, 860
(2002).
          The Sixth Amendment to the United States Constitution guarantees that “in all criminal
prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his
defence.” U.S. Const. amend. VI. The amendment has been interpreted to include the right to be
represented by conflict-free counsel. Wood v. Georgia, 450 U.S. 261, 271 (1981). In order to
ensure that a defendant receives conflict-free counsel, a trial court has an affirmative duty to
inquire into a potential conflict. State v. Lovelace, 140 Idaho 53, 60, 90 P.3d 278, 285 (2003);
see also Cuyler v. Sullivan, 446 U.S. 335, 347 (1980). However, “an inquiry is only required
‘when the trial court knows or reasonably should know that a particular conflict exists,’ which is
not to be confused with when the trial court is aware of a vague, unspecified possibility of
conflict.” Hall v. State, 155 Idaho 610, 619, 315 P.3d 798, 807 (2013) (quoting Mickens v.
Taylor, 535 U.S. 162, 168-69 (2002)). A trial court’s failure to conduct an inquiry, under certain
circumstances, will serve as a basis for reversing a defendant’s conviction.            Holloway v.
Arkansas, 435 U.S. 475, 488 (1978); Cuyler, 446 U.S. at 346-47.
          Hughes claims (1) the court did not conduct an adequate inquiry into the conflict; (2) an
actual conflict of interest adversely affected defense counsel’s performance; and (3) neither
judicial efficiency nor dilatory intent can justify the district court’s violation of Hughes’ right to
conflict-free counsel. In response, the State argues (1) that the court did not have a duty to
inquire; (2) even if the court had a duty to inquire, its inquiry was adequate; and (3) regardless,
there was not an actual conflict of interest. We agree with the State.
          We conclude that the district court did not abuse its discretion in denying counsel’s
motion to withdraw. First, Hughes’ appellate argument rests on the assertion that the motion to
withdraw proceedings should have led the district court to engage in a constitutional inquiry to
determine if a constitutionally significant conflict of interest had arisen between Hughes and his
counsel. We disagree. The district court did not have a duty to inquire. The district court was
presented with a motion to withdraw by Hughes’ private counsel. The motion was supported by
the statements in the affidavit set forth above. At the motion to withdraw hearing, counsel
expressed his concerns that Hughes was not accepting counsel’s legal advice and had sent a letter
to the Idaho State Bar. Counsel noted that the letter Hughes sent to the bar was not a disciplinary



                                                  4
complaint. 1 Counsel did not mention or elaborate on the ethical concern listed in the affidavit
and concluded his argument by stating, “I think with his frequent and public complaints and his
unrealistic view of how the case can be resolved, I can no longer give effective legal counsel.”
       The district court denied counsel’s motion explaining, although the court appreciated that
counsel may feel like he is in a difficult situation because of the letter sent to the bar, a letter to
the bar is not a sufficient basis to withdraw, especially on the eve of trial. The district court also
explained that Hughes’ disagreement with counsel’s strategic decisions is not a basis to allow
withdrawal. Further, the district court (1) informed Hughes that his counsel was private and
could be fired as Hughes saw fit; and (2) reassured Hughes that counsel was a “good lawyer and
[could] ethically do his best job, notwithstanding that letter being filed.”          In response to
counsel’s argument and the district court’s decision, Hughes asked to speak. Hughes said that he
had done research on his attorney and counsel was a “great attorney.” Thereafter, Hughes
expressed his concerns with (1) counsel not filing a motion to dismiss; (2) the date on the search
warrant in the case; and (3) any disappointment he has caused counsel in writing the letter to the
bar. In response, the court attempted to alleviate Hughes’ concerns by explaining (1) what is
legally required for a motion to dismiss; (2) that counsel made a diligent effort to investigate
suppression of the search warrant; and (3) that counsel is a “very good lawyer” and “will do
everything he can to try to get you acquitted at trial.”
       Neither Hughes nor his trial counsel alleged that a conflict of interest of constitutional
significance had arisen. Moreover, counsel’s motion alleging disagreements regarding legal
strategy, the potential of a future adversarial relationship caused by Hughes’ contact with the bar,
and an unspecified ethical concern did not give the trial court reason to know that any such
conflict existed. Counsel was not representing competing interests, and there was no indication
otherwise. See Hall, 155 Idaho at 619, 315 P.3d at 807 (finding that cases involving defense
counsel’s representation of multiple co-defendants is a situation that is more likely to give rise to
a conflict). At best, the district court was presented with a vague, unspecified conflict of interest
and did not have a duty to inquire under the Sixth Amendment. Id. The court properly
considered the argument presented and the timing of the motion in relation to trial in denying


1
        It is important to note that in the affidavit, counsel concedes that Hughes’ letter to the bar
only put him in a potentially adversarial position which does not amount to an existing conflict
of interest.
                                                  5
counsel’s request to withdraw. See State v. Lippert, 145 Idaho 586, 594, 181 P.3d 512, 523 (Ct.
App. 2007). Thus, the district court appropriately addressed the motion before it and did not
abuse its discretion in denying counsel’s motion to withdraw.
       Second, even if the district court had a duty to inquire, the court engaged in an adequate
inquiry.
               In order to satisfy the inquiry requirement, a trial court’s examination of
       the potential conflict must be thorough and searching and should be conducted on
       the record. The court “must make the kind of inquiry that might ease the
       defendant’s dissatisfaction, distrust, and concern.” However, in determining
       whether a conflict exists, trial courts are entitled to rely on representations made
       by counsel. A court may inquire further into facts, but “is under no original or
       continuing obligation to do so.”
State v. Severson, 147 Idaho 694, 704, 215 P.3d 414, 424 (2009) (internal citations omitted).
       Whether a trial court’s failure to adequately inquire into a potential conflict of interest is
enough, on its own, to justify reversal depends on whether the defendant objected to the conflict
at trial. See Cuyler, 446 U.S. at 348 (1980). When a trial court fails to make a proper inquiry,
but the defendant did not object to the conflict at trial, the defendant’s conviction will only be
reversed if he or she can prove that an actual conflict of interest adversely affected his lawyer’s
performance. Id.
       The record in this case demonstrates that the trial court conducted a proper inquiry into
any potential conflict of interest. As set forth above, the district court held a hearing on
counsel’s motion and allowed counsel to express his concern regarding Hughes’ representation. 2
In addition, the court gave Hughes the opportunity to voice his concerns with counsel’s
representation and thoroughly addressed each of Hughes’ questions. The court reminded Hughes
that, because counsel was private, he was free to fire counsel as he saw fit. Hughes did not
indicate an intention to fire his counsel. Neither counsel nor Hughes alleged a conflict of interest
that would prevent counsel from representing Hughes at trial. Based on the facts presented, the
district court’s inquiry into counsel’s motion was adequate.



2
         On appeal, Hughes argues that the district court was required to accept counsel’s
representation that he could no longer give effective legal counsel. However, it is within the
district court’s purview to determine if a conflict exists. Severson, 147 Idaho at 704, 215 P.3d at
424. Although the court is entitled to rely on counsel’s representations, it is not required to do
so. Id.
                                                 6
       Finally, although we need not discuss Hughes’ contention because we conclude that the
district court’s duty to inquire was not triggered and the court’s inquiry was adequate, we are
inclined to address Hughes’ argument that an actual conflict of interest existed in this case.
Because Hughes did not object at trial, he is required to make a showing that an actual conflict of
interest adversely affected his lawyer’s performance. See Cuyler, 446 U.S. at 348. In an effort
to prove that an actual conflict existed, Hughes points to purported violations of the duty of
loyalty, duty of confidentiality, and the Idaho Rules of Professional Conduct and argues that trial
counsel violated these rules by disparaging Hughes at the motion to withdraw hearing. Hughes
claims counsel did so in an effort to promote counsel’s own interests thereby creating a conflict
of interest which adversely affected Hughes at trial. Hughes asserts that “counsel’s statements
[in the affidavit and at the hearing] benefitted only one person--counsel--by justifying his heroic
efforts with a client he found unreasonable.” In addition, Hughes faults the district court for
allowing counsel to express his concerns with representing Hughes. Hughes’ argument is both
factually and legally without merit.
       Factually, counsel simply advised the district court regarding the issues he was having
with Hughes. In no way did counsel disparage his client, promote his own interests, or disclose
confidential information. The prosecutor was already aware of the content presented at the
hearing.   Moreover, the majority of counsel’s argument was filed in his affidavit and not
discussed in open court. Counsel acted appropriately by explaining the reasons that he sought to
withdraw at the motion to withdraw hearing. A motion to withdraw hearing is precisely the
appropriate venue for trial counsel to explain to the court why he or she seeks to withdraw.
Hughes’ contention that the district court had some duty under these facts to prevent counsel
from discussing the events which led to his motion to withdraw is incorrect.
       Legally, Hughes’ argument does not rise to the level of an actual conflict.               To
demonstrate an actual conflict under the Sixth Amendment, a defendant must show: (1) that his
counsel actively represented conflicting interests; and (2) that the conflict adversely affected his
lawyer’s performance. Cuyler, 446 U.S. at 350; Holloway, 435 U.S. at 482-84. As discussed
above, Hughes makes a factual allegation that counsel disparaged Hughes and placed Hughes in
a negative light thereby violating his duty of loyalty and confidentiality which created an actual
conflict. As an initial matter, if the allegations had factual merit, Hughes’ argument would
require this Court to find in the first instance that counsel’s conduct violated the Idaho Rules of

                                                 7
Professional Conduct. We decline to make that determination as this is not the appropriate venue
for such a contention. Additionally, Hughes’ allegations that counsel disparaged him and placed
him in a negative light do not demonstrate that counsel was actively representing conflicting
interests and does not rise to the level of an actual conflict pursuant to relevant case law.
Moreover, Hughes has not articulated that counsel’s alleged conflict had an adverse effect on his
lawyer’s performance. Consequently, Hughes’ argument is factually without merit and, legally,
no actual conflict of interest has been shown. Therefore, the district court’s denial of counsel’s
motion to withdraw did not violate the United States Constitution and was not an abuse of
discretion.
                                               III.
                                        CONCLUSION
       The district court correctly denied counsel’s motion to withdraw. Therefore, the district
court’s order denying counsel’s motion to withdraw is affirmed.
       Judge HUSKEY and Judge BRAILSFORD CONCUR.




                                                8
