 Pursuant to Ind. Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,                         Mar 12 2014, 10:01 am
 collateral estoppel, or the law of the case.




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:
TIMOTHY P. BRODEN                                  GREGORY F. ZOELLER
Lafayette, Indiana                                 Attorney General of Indiana

                                                   BRIAN REITZ
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

TY WILKERSON,                                      )
                                                   )
       Appellant-Defendant,                        )
                                                   )
           vs.                                     )      No. 79A02-1303-CR-234
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )

                  APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                         The Honorable Thomas H. Busch, Judge
                             Cause No. 79D02-1204-FA-09


                                         March 12, 2014
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       Ty Wilkerson (“Wilkerson”) appeals the Tippecanoe Superior Court’s denial of

his motion to set aside his plea of guilty to Class A felony dealing in methamphetamine.

On appeal, Wilkerson claims that the trial court should have granted his motion because

of an alleged conflict of interest which denied him the effective assistance of counsel.

       We affirm.

                               Facts and Procedural History

       The State charged Wilkerson on April 30, 2012, with Class A felony conspiracy to

commit dealing in methamphetamine, Class A felony dealing in methamphetamine, Class

B felony possession of methamphetamine, Class C felony possession of precursors to

methamphetamine, and Class D felony maintaining a common nuisance.                A deputy

prosecutor with the Tippecanoe County Prosecutor’s office, Timothy Curry (“Curry”),

was assigned to prosecute Wilkerson and his co-defendant.          As part of his role in

prosecuting the case against Wilkerson, Curry prepared a discovery disclosure and, on

June 25, 2012, a plea offer.

       In October 2012, Curry left the prosecutor’s office and began to work at the

Tippecanoe County Public Defender’s office. The Public Defender’s office screened

Curry for any potential conflicts of interest. The Public Defender’s office also sought the

opinion of an outside expert, Donald Lundberg (“Lundberg”), of the law firm of Barnes

and Thornburg, LLP.1 Lundberg prepared a memorandum for the Public Defender’s

office, which stated in part, “The key here is to screen the former DPA [deputy

prosecuting attorney] so that none of the disqualifying information known to him will
1
  Lundberg was formerly the executive director of the Indiana Supreme Court’s Disciplinary
Commission.

                                             2
penetrate the screen to other public defenders who are adverse to the State in cases from

which the former DPA is disqualified.” Ex. Vol., Defendant’s Ex. B., p. 7. Lundberg

provided the Public Defender’s office with a compliance checklist, which was given to

Curry. Curry then created a list of all cases he had worked on while at the prosecutor’s

office, which included Wilkerson’s case. Curry also signed an affidavit stating that he

was not allowed to discuss his previous cases with any of the public defenders and was

instead to “make a wall and not discuss any facts or circumstances” of those cases. Id.,

Defendant’s Ex. C.      The other public defenders were also given a memorandum

explaining the screening situation.

       James Trueblood (“Trueblood”), Chief Deputy Public Defender at the Tippecanoe

County Public Defender’s Office, had been appointed to represent Wilkerson. After

Curry was hired by the Public Defender’s office, Trueblood acted in accordance with the

screening memorandum and did not discuss Wilkerson’s case with Curry after he left the

prosecutor’s office.    Further, in each case where Curry had been involved in the

prosecution, including Wilerkson’s case, the Public Defender’s office gave the defendant

an individual client letter explaining that Curry was now working for the Public

Defender’s office.     The letter explained that Curry would not be involved in the

representation of the defendant and would be screened from any involvement. Lastly, the

letter stated:

       We understand that you might be concerned that a person who, until
       recently, was prosecuting you is now a public defender in our office. It is
       our opinion that there will be no [e]ffect on the defense of your case. But
       you may not share that opinion. If you do not, I ask that you contact me
       immediately and request reassignment of your case to conflicts counsel not


                                           3
       the staff of the public defender’s office. We will make every effort to
       promptly reassign your case.

Id., Defendant’s Ex. D (emphasis added). Trueblood also went to the jail to speak with

Wilkerson about the situation. Wilkerson indicated that he wanted Trueblood to continue

to represent him.

       On January 2, 2013, Wilkerson entered into a plea agreement with the State

whereby he would plead guilty to Class A felony dealing in methamphetamine; the

remaining counts were to be dismissed.        The trial court accepted the plea and, on

February 11, 2013, sentenced Wilkerson to twenty-five years, with twenty years executed

and five years suspended to probation.

       On April 3, 2013, Wilkerson filed a motion to withdraw his guilty plea. The trial

court set the matter for a hearing on April 26, 2013. At the hearing, Wilkerson claimed

that he received the ineffective assistance of trial counsel, attributing Curry’s conflict of

interest to the entire Public Defender’s office, including his trial counsel Trueblood. On

April 30, 2013, the trial court denied Wilkerson’s motion to withdraw his guilty plea.

Wilkerson now appeals.

                                   Standard of Review

       Motions to withdraw guilty pleas after sentencing are governed by Indiana Code

section 35-35-1-4. This section provides:

       (c) After being sentenced following a plea of guilty, or guilty but mentally
       ill at the time of the crime, the convicted person may not as a matter of
       right withdraw the plea. However, upon motion of the convicted person,
       the court shall vacate the judgment and allow the withdrawal whenever the
       convicted person proves that withdrawal is necessary to correct a manifest
       injustice. A motion to vacate judgment and withdraw the plea made under
       this subsection shall be treated by the court as a petition for postconviction

                                             4
       relief under the Indiana Rules of Procedure for Postconviction Remedies.
       For purposes of this section, withdrawal of the plea is necessary to correct a
       manifest injustice whenever:
          (1) the convicted person was denied the effective assistance of counsel;
          (2) the plea was not entered or ratified by the convicted person;
          (3) the plea was not knowingly and voluntarily made;
          (4) the prosecuting attorney failed to abide by the terms of a plea
               agreement; or
          (5) the plea and judgment of conviction are void or voidable for any
               other reason.
       The motion to vacate the judgment and withdraw the plea need not allege,
       and it need not be proved, that the convicted person is innocent of the crime
       charged or that he has a valid defense.

Ind. Code Ann. § 35-35-1-4 (West).

       Our supreme court has held that this statute requires a trial court to grant a request

to withdraw a guilty plea where the defendant proves that withdrawal of the plea is

necessary to correct a manifest injustice.       Coomer v. State, 652 N.E.2d 60, 61-62

(Ind.1995)). On the other hand, a trial court must deny a motion to withdraw a guilty

plea if the withdrawal would result in “substantial prejudice” to the State. Id. at 62.

“Manifest injustice” and “substantial prejudice” are “necessarily imprecise standards”

and “[e]xcept under these polar circumstances, disposition of the petition is at the

discretion of the [trial] court.” Id. Thus, “the trial court’s ruling on a motion to withdraw

a guilty plea arrives in this Court with a presumption in favor of the ruling.” Id. The trial

court’s decision is reviewed for abuse of discretion. Smallwood v. State, 773 N.E.2d

259, 264 (Ind. 2002). And we will not disturb the court’s ruling where it was based on

conflicting evidence. Id.




                                             5
                                       Discussion and Decision

          Wilkerson claims that he should have been allowed to withdraw his guilty plea

because the Public Defender’s office had a conflict of interest.                          “The federal

constitutional right to effective assistance of counsel necessarily includes representation

that is free from conflicts of interest.” Woods v. State, 701 N.E.2d 1208, 1223 (Ind.

1998) (citing Wood v. Georgia, 450 U.S. 261, 271 (1981)). To establish a deprivation of

the right to counsel due to a conflict, a defendant who failed to raise the objection at trial

must demonstrate that trial counsel had an actual conflict of interest and that the conflict

adversely affected counsel’s performance. Id. (citing Cuyler v. Sullivan, 446 U.S. 335,

348 (1980)).

          Wilkerson argues that his trial counsel, Trueblood, and the whole Public

Defender’s office had a conflict of interest after hiring Curry, who had worked on

Wilkerson’s case as a deputy prosecuting attorney. In support of his claim, Wilkerson

cites Indiana Professional Conduct Rule 1.11(a)(2), which provides in relevant part:

          (a) Except as law may otherwise expressly permit, a lawyer who has
          formerly served as a public officer or employee of the government:
              (1) is subject to Rule 1.9(c)[2]; and
              (2) shall not otherwise represent a client in connection with a matter in
                  which the lawyer participated personally and substantially as a
                  public officer or employee, unless the appropriate government
                  agency gives its informed consent, confirmed in writing to the
                  representation.
2
    Rule 1.9(c) provides:
          A lawyer who has formerly represented a client in a matter or whose present or former
          firm has formerly represented a client in a matter shall not thereafter:
          (1) use information relating to the representation to the disadvantage of the former
                client except as these Rules would permit or require with respect to a client, or
                when the information has become generally known; or
          (2) reveal information relating to the representation except as these Rules would permit
                or require with respect to a client.

                                                     6
This of course, would apply only to Curry, who did not represent Wilkerson as a public

defender. But such disqualification can be imputed to an entire law firm:3

        (b) When a lawyer is disqualified from representation under paragraph (a),
        no lawyer in the firm with which that lawyer is associated may knowingly
        undertake or continue representation in such a matter unless:
            (1) the disqualified lawyer is timely screened from any participation in
                the matter and is apportioned no part of the fee therefrom; and
            (2) written notice is promptly given to the appropriate government
                agency to enable it to ascertain compliance with the provisions of
                this rule.

Prof. Cond. R. 1.11(b) (emphasis added).               Rule 1.0 (k) defines “screened” as “the

isolation of a lawyer from any participation in a matter through the timely imposition of

procedures within a firm that are reasonably adequate under the circumstances to protect

information that the isolated lawyer is obligated to protect under these Rules or other

law.”

        Wilkerson claims that Curry did not identify the specific means by which he was

precluded from accessing the files of defendants who he had formerly been prosecuting.

He similarly claims that Trueblood did not identify the specific measures he undertook to

secure Wilkerson’s file. However, after Curry was hired, the Public Defender’s office

sought the advice of outside counsel with extensive experience in such matters. Pursuant

to the advice of outside counsel, Curry informed the Public Defender’s office of every

case he had been involved in as a deputy prosecuting attorney. He also signed an

affidavit stating that he would not discuss the cases he had worked on as a deputy


3
   We assume arguendo that the Public Defender’s office was a “law firm.” But see In re Recker, 902
N.E.2d 225 (Ind. 2009) (holding that public defenders who shared office space and support staff were not
a law firm for purposes of the Rules of Professional Conduct).

                                                   7
prosecuting attorney, and that a “wall” was created between him and the other public

defenders for these cases. Other public defenders were given memoranda explaining

these measures. Curry testify that he did not discuss Wilkerson’s case with Trueblood,

and Trueblood testified likewise. Curry and Trueblood also testified that they abided by

the screening “checklist” prepared by Lundberg, which prohibited access to files and

documents of the defendants Curry had formerly prosecuted.

       Importantly, Trueblood testified that he gave Wilkerson a letter explaining this

situation, spoke with him about the situation, and that Wilkerson indicated that he desired

that Trueblood continue to represent him. Wilkerson denied this at the withdrawal

hearing, but the trial court did not have to credit his testimony. See Smallwood, 773 N.E.

at 264. Thus, the trial court was presented with evidence that Curry did not discuss

Wilkerson’s case with anyone at the Public Defender’s office, did not access Wilkerson’s

files, and that Trueblood had no discussion of Wilkerson’s case with Curry. In addition,

Wilkerson was fully informed of Curry’s presence at the Public Defender’s office and

chose to continue to be represented by Trueblood. Under these facts and circumstances,

the trial court did not abuse its discretion in denying Wilkerson’s motion to withdraw his

guilty plea.

       Affirmed.

BRADFORD, J., and PYLE, J., concur.




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