                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-2007
                             Filed October 28, 2015


OSCAR IBARRA,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert J. Blink,

Judge.




      Oscar Ibarra appeals from the denial of his application for postconviction

relief. AFFIRMED.




      Alfredo Parrish of Parrish, Kruidenier, Dunn, Boles, Gribble, Gentry,

Brown & Bergmann, LLP, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney

General, John P. Sarcone, County Attorney, and Michael T. Hunter, Assistant

County Attorney, for appellee State.



      Heard by Potterfield, P.J., and Doyle and McDonald, JJ.
                                          2


DOYLE, Judge.

         Oscar Ibarra, charged with murder, was represented by two public

defenders. That same public defender office had represented the decedent and

concurrently represented the State’s primary witness against Ibarra. Ibarra’s trial

counsel themselves had not represented either.        The trial court conducted a

conflict-of-interests hearing pursuant to State v. Watson, 620 N.W.2d 233 (Iowa

2000). Ibarra and the State’s witness waived the conflict of interest, and the

district court concluded that the public defenders could continue to represent

Ibarra. A jury found Ibarra guilty of murder in the first degree, and we affirmed on

appeal. State v. Ibarra, No. 12-0330, 2013 WL 530558 (Iowa Ct. App. Feb. 13,

2013).

         Ibarra’s application for postconviction relief (PCR) was denied, and on

appeal he asserts his trial counsel was ineffective in two respects. First, he

argues his trial counsel was required to advise him he could or should request

advice from independent counsel before waiving any conflict of interest with his

trial counsel’s office’s dual representation of him and a State’s witness.       He

asserts the alleged error is such that prejudice must be presumed, either under

existing case law or a structural-error analysis, but he alternatively argues he

was prejudiced as a result of the alleged error. Second, he argues his trial

counsel failed to reasonably pursue his intoxication defense. We affirm.

         I. Background Facts and Proceedings.

         In 2011, Patrick Wilson died after he was stabbed fifteen times, “including

a fatal wound to his heart and a wound that went completely through his forearm

and could be considered a defensive wound.” See Ibarra, 2013 WL 530558, at
                                                 3


*1-4.   Ibarra was subsequently charged with first-degree murder for Wilson’s

death, and he applied for court-appointed counsel.                    Thereafter, two public

defenders with the Des Moines Adult Public Defender Office (“public defender

office”) were appointed to represent Ibarra.1 See id. at *1, 5-7. Ibarra ultimately

acknowledged he stabbed Wilson, but he asserted his actions were done in self-

defense and as a result of his intoxication. See id. at *1, 10.

        One of the trial witnesses named by the State was Cody Brown, a friend of

Ibarra’s who had been with Ibarra and mutual friends the day of Wilson’s murder.

See id. at *2-4. Brown was considered a “critical witness” by the State. The

State learned Brown had been previously represented by the public defender

office on three separate occasions on two different criminal matters, albeit by

different attorneys than those representing Ibarra. See id. at *8 n.4. After Brown

was deposed by Ibarra’s trial counsel in August 2011, Brown was again

represented by the public defender office on a probation matter. See id. at *7.

The State also learned the public defender office had represented Wilson, the

victim, in 2009 in a criminal matter, again by different attorneys within that office.

        Prior to trial, the State contacted trial counsel, concerned trial counsel may

have had a conflict of interest because the public defender office had

represented Brown, and Brown was “a fairly big [S]tate’s witness.” Trial counsel

ran the issue first by the State Appellate Defender via email. The State Appellate

Defender doubted a real conflict existed, since it was unlikely that the public

defender office’s prior representation of Brown yielded any real confidential

information that could be used against Brown in cross-examination.                       It was

        1
            We collectively refer to Ibarra’s two attorneys in the singular as “trial counsel.”
                                         4


advised that trial counsel not discuss Ibarra’s case with the public defender

office’s attorneys representing Brown.

       Thereafter, the State requested a hearing to determine whether the public

defender office had a conflict of interest, given that office’s representation of

Ibarra, Brown, and Wilson, and a hearing was set. See id. at *6-7. Trial counsel

then advised the State Public Defender that the State had requested the hearing

and that the State Appellate Defender did not believe there was an actual

conflict. Trial counsel also stated she had spoken with Ibarra the day before and

he did “waive any potential conflict.”   The State Public Defender advised he

agreed with the State Appellate Defender, “that if we didn’t learn anything during

those past representations, there’s no actual conflict and any potential conflict

should be addressed by walling off the three other attorneys involved from any

involvement with [Ibarra’s] case.”

       The hearing on the potential conflict of interest followed.    There, the

prosecutor advised the court: “It is the State’s position that there is a conflict

given that [the public defender] office has represented Mr. Brown on three

occasions and that he is such an important witness. [The State does not] know

how there could not be a conflict.” The prosecutor noted trial counsel might be

able to continue representing Ibarra “with some type of a waiver or substitute

counsel or a Chinese wall,” or but it was not asking for any of those options

because Brown was “such a critical witness it is [a] big problem for [trial

counsel].” The State was concerned that if Ibarra got “a bad result,” the conflict

issue may come up again after trial in an appeal or PCR proceedings. The State

also suggested that a separate attorney be appointed for Brown to talk to Brown
                                           5


about the possible conflict, but it was never suggested that the same be done for

Ibarra.

          Ibarra’s trial counsel argued no conflict of interest existed. Trial counsel

advised the court the matter had been previously discussed with Ibarra,

          [b]asically kind of what the nature of these proceedings are; the
          issue that [trial counsel is] dealing with regarding that [another
          attorney] with [the public defender] office had represented Cody
          Brown about the time of the deposition in August of this year, and
          why this could possibly be a potential or actual conflict; why we are
          having this proceeding verbally on Monday and also before we
          started today. He stated to me orally that he would waive that
          conflict, and we can make that inquiry later.

Trial counsel stated she had not consulted the attorneys representing Brown and

Wilson concerning the merits of Brown’s and Wilson’s cases, nor had trial

counsel obtained or looked at those clients’ files.        Additionally, trial counsel

advised the court that the State Appellate Defender had been consulted on the

issue and perceived no conflict of interest. See id. at *7. Trial counsel noted

Brown’s case was now concluded, and she did not “see that he has any adverse

[e]ffect,” but left “that to the discretion of the court.” Trial counsel then conducted

the following colloquy with Ibarra on the record to confirm he wished to waive any

conflict of interest:

                 Q: Mr. Ibarra, would you agree we had a conversation on
          Monday and also today regarding the procedure today? A: Yes.
                 Q: And do you understand that from our conversation that
          what we are here today for, Mr. Ibarra, is we were discussing that
          Cody Brown, we know from the deposition, that, if you recall back
          on August 18th when he came in, that he was in custody for a
          probation violation. Do you recall that? A: Yes.
                 Q: And what the issue is, the County Attorney is bringing up,
          is that . . . an attorney in our . . . office that works with [trial
          counsel] . . . actually took care of [Brown’s] probation violation on
          August 23rd of this year. What the issue becomes is because that
          [attorney] is with our office, what the County Attorney is raising is
                                           6


       whether our office—[trial counsel’s] representation of you is either
       an actual or potential conflict because we represented a defense
       witness and a state witness at the same time. Do you understand
       that? A: Yes.
               Q: And where the issue becomes is, as your attorneys, we
       ethically try and advocate for you zealously on every single witness.
       Meaning when Mr. Brown is called as a [S]tate’s witness, [trial
       counsel has] the ethical duty to cross-examine him, for example, on
       his criminal history. Do you understand that? A: Yes.
               Q: And the issue the County Attorney is pointing out is
       becoming—is that they have concerns that, obviously, we can,
       because other attorneys in our office have worked with him, that we
       could have access to his files or talk about anything that they talked
       about during that proceeding. Do you understand that? A: Yes.
               Q: And it would be my position that we have not looked at
       those files. We don’t intend on looking at those files. We have not
       had any discussions with [Brown’s attorneys in the public defender
       office regarding Brown’s] cases, so that is where we feel we don’t
       have a conflict with that. Do you understand that? A: Yes.
               Q: And it would be [trial counsel’s] position that we can still
       continue with you at all stages of the proceedings and at trial and
       cross-examine and—every witness listed by the State that would
       come to trial on your behalf effectively. Do you understand that?
       A: Yes.
               Q: And at this point in time, would you waive any potential or
       actual conflict that [the public defender office] would have in,
       number one, representing you and also representing Cody Brown
       either before this murder case or during this murder case? A: Yes.

       Following the hearing, the district court entered an order requiring further

inquiry of Brown’s “willingness to waive any potential conflict of interest, at least

with certain safeguards in place.” Id. at *8. The court explained it was troubled

with the potential conflict of interest:

       It is difficult for the court to see how there is not a serious potential
       conflict of interest—if not an actual conflict of interest—based upon
       the record made. It is clear from reading [Brown’s deposition] that
       his criminal background and substance abuse history will be an
       integral part of his examination and cross-examination at trial. It is
       further clear that [Ibarra’s trial counsel] plan[s] to make [Wilson’s]
       use and history of alcohol and illegal drugs a part of the case. In
       both instances, the potential exists for the members of the [public
       defender office] to have access to information that would otherwise
       be privileged.
                                          7

See id. at *6-7. The court was also troubled that neither trial counsel nor the

State Appellate Defender perceived a conflict-of-interest existed. See id. at *7.

To avoid a potential reversal on a finding of the existence of a conflict of interest,

the district court appointed the Polk County Juvenile Public Defender to

determine Brown’s wishes and report them to the court. See id. at *8. However,

the court made no such recommendation or requirement concerning Ibarra, such

as seeking the advice of independent counsel to advise him of the consequences

of waiving the conflict of interest, conducting its own colloquy to ensure Ibarra

understood the right he was waiving, or requiring Ibarra sign a written waiver

explaining such to him.     Instead, the court simply ordered that Ibarra’s trial

counsel “have no access to any of the public defender files concerning either

Brown or Wilson and that the public defender’s office take ‘all steps necessary to

ensure that confidential information pertaining to either Brown or [Wilson] is not

communicated’ to Ibarra’s [trial counsel],” see id., thus ordering the erection of a

so-called “Chinese Wall.” See Doe ex rel. Doe v. Perry Cmty. Sch. Dist., 650

N.W.2d 594, 598 (Iowa 2002) (discussing the use of Chinese Walls “to prevent

disqualification of the entire law firm in various circumstances”).

       Brown subsequently made a written statement waiving any potential

conflict of interest, and the court thereafter entered a supplemental order finding

there was “no need for disqualification of the public defender office, or for

appointment of a separate attorney to cross examine [Brown] at trial.” Ibarra,

2013 WL 530558, at *8. The court “ordered the public defender to continue to

follow the previous order not to examine any client files of Brown or Wilson in
                                        8


connection with the case,” and Ibarra’s trial counsel continued               their

representation of Ibarra. Id.

       A jury trial was subsequently held, and Ibarra presented his justification

and intoxication defenses. See id. at *1. The jury found Ibarra guilty of first-

degree murder. See id.

       Ibarra appealed his conviction, asserting his trial counsel had an

impermissible conflict-of-interest and challenging the sufficiency of the evidence,

among other things, and we affirmed. See id. On the conflict-of-interest issue,

we concluded that although Ibarra’s trial counsel had not personally represented

Brown or Wilson, the public defender office had represented Wilson and was

representing “Brown, a witness adverse to Ibarra’s interests,” causing a conflict

of other members of the public defender office that was imputed to Ibarra’s trial

counsel. See id. at *8. Nevertheless, relying upon State v. Smitherman, 733

N.W.2d 341, 346 (Iowa 2007), we found the conflict did not require reversal

because Ibarra failed to show his trial counsel’s performance was adversely

affected by the alleged conflict of interest in this case.       See id. at *8-9.

Additionally, we found substantial evidence was presented at trial to support the

jury’s verdict. See id. at *10-12.

       In May 2013, Ibarra filed his application for PCR. Ibarra argued his trial

counsel was ineffective in numerous respects, including failing to seek

appointment of independent counsel to advise him concerning the conflict-of-

interest issue before waiving the conflict, as well as failing to investigate and

present evidence of his intoxication, history of alcohol abuse, and depression in
                                              9


support of his intoxication defense. Following a hearing, the PCR court denied

Ibarra’s PCR application. Ibarra now appeals.

       II. Ineffective Assistance of Counsel.

       Generally, we review postconviction proceedings for errors at law. Castro

v. State, 795 N.W.2d 789, 792 (Iowa 2011). However, applications that raise an

ineffective-assistance-of-counsel claim present a constitutional challenge, which

we review de novo. Id.

       III. Discussion.

       A. Conflict of Interest.2

       Ibarra’s arguments regarding the conflict-of-interest issue are as follows.

Because we found on direct appeal there was a conflict-of-interest, this finding is

“binding in these proceedings as the law of the case.”3 Because of said conflict,

trial counsel had a duty to advise him to seek the advice of independent counsel


       2
          We tend to agree with the State that this issue was raised and addressed on
direct appeal, though Ibarra seems to put a fresh spin on it. See Ibarra, 2013 WL
530558, at *8-9. As to the prejudice issue, we have already held “[t]here is nothing in
the record to suggest defense counsel’s performance was affected by a conflict of
interest.” Id. at *9. Furthermore, we concluded “[t]here is also no connection between
the alleged conflict and the alleged deficiencies in Ibarra’s defense . . . . Because Ibarra
has not shown his counsel was adversely affected by a conflict of interest, his
constitutional rights to conflict-free counsel were not violated.” Id. Nevertheless, we
choose to address the argument due to updated conflict-of-interest case law and
because we find the claim is still without merit, to avoid any future PCR claims.
        3
          We note Justice Waterman’s special concurrence in the recent State v.
McKinley opinion points out that the Iowa Supreme Court has not “settle[d] the recurring
legal issue” of “whether an individual public defender’s conflict of interest is automatically
imputed to the entire public defender’s office.” 860 N.W.2d 874, 886 (Iowa 2015)
(Waterman, J., concurring specially). He specifically cited this court’s application of the
automatic-imputation rule in our opinion on Ibarra’s direct appeal finding a conflict of
interest existed in that case. Id. at 889 (quoting Ibarra, 2013 WL 530558, at *8). The
supreme court declined to address the issue in Ibarra’s case as Ibarra’s application for
further review from our February 13, 2013 opinion affirming his conviction was denied by
the supreme court. However, McKinley clearly suggests, without saying, that there is no
automatic imputation of conflicts of interest to the entire public defender office. Id. at
886.
                                       10


before he waived any conflict of interest. Because Ibarra was not explicitly so

advised, he argues he was “effectively without counsel” during the conflict-of-

interest proceedings and could not be said to have knowingly, voluntarily, and

intelligently waived his constitutional right to non-conflicted counsel.      He

maintains that

      had he been told he could have received such advice, he would
      have done so. He waived the conflict because . . . he thought [his
      trial counsel] knew what they were doing, and he trusted them. He
      did not understand the nature or consequence of the conflict or
      what he was waiving.

He further contends this alleged error, either under existing case law or a

structural-error analysis, requires prejudice to him be presumed. Alternatively,

Ibarra asserts the error was prejudicial to him. For the reasons that follow, we

disagree.

      “The Sixth Amendment provides that ‘in all criminal prosecutions, the

accused shall enjoy the right . . . to have the Assistance of Counsel for his

defence.”   State v. Young, 863 N.W.2d 249, 256 (Iowa 2015) (quoting U.S.

Const. amend. VI). The Assistance of Counsel clause generally includes several

rights: the right to effective assistance of counsel, see State v. Ambrose, 861

N.W.2d 550, 556 (Iowa 2015); the right to appointed counsel, see Young, 863

N.W.2d at 250; the right to conflict-free counsel, Smitherman, 733 N.W.2d at 349;

and the right to counsel of choice, see McKinley, 860 N.W.2d at 879, including

the right to represent oneself, see State v. Johnson, 756 N.W.2d 682, 687 (Iowa

2008). Many of these rights are implicated here.

      Despite the numerous principles embodied within the Sixth Amendment,

its “essential aim . . . is to guarantee an effective advocate for each criminal
                                         11


defendant rather than to ensure that a defendant will inexorably be represented

by the lawyer whom he prefers.” Wheat v. United States, 486 U.S. 153, 159

(1988). Consequently, the differing interests of the Sixth Amendment may at

times conflict. See id.; McKinley, 860 N.W.2d at 880; see also Watson, 620

N.W.2d at 235. For instance, an indigent defendant has the right to appointed

counsel, but that defendant does not have the right to choose who the appointed

attorney will be, at least initially. See McKinley, 860 N.W.2d at 879. Similarly, a

defendant’s right to choose a particular attorney can be trumped by the district

court’s finding that that attorney presents an actual conflict or a serious potential

for conflict-of-interest. See id. at 880. And, as the Supreme Court observed in

Wheat, trial courts confronted with such conflict-of-interest issues “face the

prospect of being ‘whip-sawed’ by assertions of error no matter which way they

rule.” 486 U.S. at 161-62. If a trial court allows the representation by a particular

attorney to continue where a potential conflict may arise, and counsel’s

performance is later impaired as a result of the conflict, “the defendant may well

claim that he did not receive effective assistance.” Id. Yet, if a trial court does

not accept a defendant’s waiver of a conflict of interest, the defendant may well

claim his right to choice of counsel was denied. See id. At the same time, as is

the case here, accepting the defendant’s waiver may still result in an ineffective-

assistance claim. See id.

       Ibarra directs us to Watson, wherein our supreme court found that

Watson’s trial counsel’s actual conflict of interest required reversal of Watson’s

conviction and a new trial. 620 N.W.2d at 241-42. In that case, Watson’s trial

attorney also represented a key prosecution witness, and no conflict-of-interest
                                          12


issue was raised prior to or at trial by anyone, even though the witness testified

at trial about being represented by the same attorney. See id. at 234-35. After

reviewing numerous conflict-of-interest cases, the court held

       that where the trial court knew or should have known of a particular
       conflict, reversal is required without a showing that the conflict
       adversely affected counsel’s performance, even though no
       objection was made at trial . . . . If the trial court knows that a
       particular conflict exists and fails to conduct an inquiry, it should not
       matter what the source of the court’s knowledge is. Regardless of
       how the trial court becomes aware of the conflict, the defendant has
       been denied his right to independent counsel. It is only in cases of
       uncertainty, where the record shows the mere possibility of a
       conflict, that the additional requirement of an adverse effect on
       counsel’s performance is required to establish an actual conflict.

Id. at 237-38. Because there was an actual conflict that the trial court knew or

should have known of but failed to sua sponte hold a hearing on the propriety of

Watson’s attorney’s representation, the supreme court held reversal of Watson’s

conviction was mandated, and it remanded the matter “for a new trial where

[Watson] shall be represented by counsel unburdened by a conflict of interest.”

Id. at 242.

       Ibarra argues that under Watson, reversal of his conviction and a new trial

are required. However, our conflict-of-interest jurisprudence has been updated

and clarified since Watson.      After Watson, the United States Supreme Court

handed down Mickens v. Taylor, 535 U.S. 162 (2002). There, Mickens’s attorney

had represented Mickens and his alleged victim; the trial court had knowledge of

the potential conflict but failed to inquire into the potential conflict. Id. at 164-65.

Contrary to Watson’s holding requiring automatic reversal under similar

circumstances, the Supreme Court
                                        13


      concluded that even where the trial court fails to inquire into a
      potential conflict of which it should have been aware, the defendant
      still has to establish that the alleged conflict materialized into an
      actual conflict. The Court stated a defendant demonstrates an
      actual conflict by showing that the conflict adversely affected his
      counsel’s performance.

State v. Vaughan, 859 N.W.2d 492, 500 (Iowa 2015) (discussing Mickens, 535

U.S. at 171-74).

      In 2007, our supreme court decided Smitherman, 733 N.W.2d at 341.

Smitherman was summarized by the Vaughn court as follows:

      a public defender represented both the defendant and an individual
      who later came forth as a witness for the State. The public
      defender withdrew from representing the witness and the public
      defender’s office replaced the specific attorney and screened him
      from working on the defendant’s case as well. At a hearing on the
      conflict, the court determined the public defender’s office’s
      continued representation of the defendant did not create an
      impermissible conflict of interest. The defendant did not object to
      the representation at the time, but alleged on appeal that his state
      and federal constitutional rights had been violated by the public
      defender’s office’s simultaneous representation of himself and the
      witness.

Vaughan, 859 N.W.2d at 500-01 (internal citations omitted) (discussing

Smitherman, 733 N.W.2d at 343-45). The court recognized its Watson holding

under the Sixth Amendment was impacted by the Mickens decision.

Smitherman, 733 N.W.2d at 347. The court went on:

      While we were willing to presume prejudice without requiring
      adverse effect in Watson, we believe the facts of Watson are
      sufficiently distinguishable from this case so the reasons behind our
      holding in Watson, even if still viable after Mickens under our state
      constitution, are not applicable here. Under the circumstances in
      this case, we hold Smitherman must show adverse effect in order
      to prevail under either the Sixth Amendment or article I, section 10
      of the Iowa constitution.

Id. In its conclusion, the Smitherman court stated:
                                        14


               We need not determine the validity of the defendant’s
       alleged waiver because we find the defendant has failed to show
       his counsel’s performance was adversely affected by the alleged
       conflict of interest in this case. As a result, he has not established
       a violation under the Sixth Amendment or the Iowa constitution and
       is not entitled to a new trial.

Id. at 350.

       More recently, our supreme court decided Vaughan, 859 N.W.2d at 492.

There, a public defender was appointed to represent Vaughan and was also

appointed to represent Cline in an unrelated case. Id. at 495. Some four months

before Vaughan’s trial, Cline was listed as a State’s witness in Vaughan’s case,

and the public defender immediately “filed a motion to withdraw from

representing Vaughan on behalf of the public defender’s office, indicating that

office had a conflict of interest due to the fact it represented a witness against

Vaughan.” Id. at 495-96. The motion was granted and another attorney was

appointed to represent Vaughan that same day. Id. at 496. On appeal, Vaughan

argued “[the public defender’s] simultaneous representation of Cline and

Vaughan from May to August 2012 resulted in an impermissible conflict of

interest,” and in the absence of a Watson hearing, required reversal. Id. at 501.

The court indicated the absence of a Watson hearing seemed beside the point

when Vaughn received Watson relief. Id. Specifically, the court expounded that

“[w]hen a Watson hearing occurs, Smitherman requires the defendant

demonstrate an adverse effect on counsel’s performance resulting from an actual

conflict of interest; reversal is not automatic.” Id. at 501 (citing Smitherman, 733

N.W.2d at 347-48). The conflict was remedied before trial—Vaughan’s attorney

was replaced with conflict-free counsel—and Vaughan failed to “demonstrate that
                                         15


the conflict had an adverse effect on counsel’s performance to warrant a new

trial”; hence, the court rejected Vaughan’s claim on appeal that the lack of a

formal Watson hearing presumes the defendant is prejudiced and reversal is

automatically required. Id.

       McKinley, 860 N.W.2d at 874, was decided a month after Vaughan. In

circumstances similar to the case at hand, McKinley was appointed two public

defender attorneys. Id. at 876. Long before trial, they discovered other attorneys

in their office had previously represented three potential State’s witnesses in

matters unrelated to McKinley’s criminal charge.       Id. at 876-77.    McKinley’s

attorneys requested a hearing to determine whether a conflict existed requiring

their disqualification. Id. at 877. Independent counsels were appointed for the

potential witnesses.   Id.    McKinley’s attorneys argued their colleagues’ past

representation of the three potential witnesses on unrelated matters had

concluded well before McKinley was charged so there was no concurrent

representation. Id. McKinley’s attorneys also assured the court they had no

information about the matters concerning the three potential witnesses, had not

reviewed the files pertaining to those matters, and that they instituted measures

to prevent them from accessing any information pertaining to those matters. Id.

McKinley’s attorneys “contended any potential conflict of interest arising from the

prior representations of the three witnesses by other attorneys in the [public

defender’s] office should not be imputed to them.” Id. Additionally, McKinley, in

a colloquy with the court, expressly acquiesced in any potential conflict of interest

and indicated his desire to have his public defender counsel continue to

represent him. Id. He also “filed a document confirming his acquiescence in any
                                         16


potential conflict and reaffirming his wish for continued representation by” his

counsel. Id. Two of the potential witnesses declined to consent to the public

defenders’ representation of McKinley.        Id.   The State urged the court to

disqualify the entire public defender’s office. Id. The district court concluded a

conflict of interest disqualified all attorneys at the public defender’s office from

serving as McKinley’s counsel. Id. at 878.

       On appeal the supreme court reversed and remanded, concluding “the

circumstances of this case do not rise to the level of an actual conflict.” Id. at

879.   After an analysis under Watson, Mickens, and Smitherman, and the

applicable ethical rules and standards, and the lack of temporal overlap or

attorney overlap, the court concluded:

               The district court’s decision disqualifying [McKinley’s trial
       counsel] based primarily on an erroneous application of provisions
       of the Iowa Rules of Professional Conduct constitutes an untenable
       ground for the court’s exercise of discretion. Under the relevant
       caselaw and our rules of professional conduct, the prior
       representation of witnesses in unrelated matters by other members
       of the public defender’s office did not present an actual conflict or a
       serious potential for conflict that justifies the order disqualifying
       [McKinley’s trial counsel] and countermanding McKinley’s interest
       in continuing an attorney-client relationship.

Id. at 886.

       Though not explicitly stated or treated as such, the Watson court

essentially held the conflict-of-interest error in that case was structural, requiring

the presumption of prejudice. See Watson, 620 N.W.2d. at 237-38. However, as

previously discussed, Watson, though not formally overruled, has since been

distinguished in ways applicable here. See Vaughan, 859 N.W.2d at 499-500

(discussing Mickens, 535 U.S. at 173-74, Smitherman, 733 N.W.2d at 347, and
                                           17

Watson, 620 N.W.2d at 234, 241-42).              Vaughan and Smitherman can be

interpreted to indicate that if a Watson hearing is held pretrial or Watson relief is

granted sans hearing, a conflict found posttrial is not a structural error in and of

itself requiring reversal. See id. (discussing Smitherman, 733 N.W.2d at 347).

Rather, to warrant reversal, a defendant must go further and prove the conflict

actually affected counsel’s representation of the defendant. See id. The Sixth

Amendment only guarantees that a criminal defendant receive an “effective

advocate.”     Wheat, 486 U.S. at 159.              It does not guarantee perfect

representation.     See State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000).

Requiring automatic reversal when a conflict exists that did not affect counsel’s

performance makes little policy sense in light of the demands of the Sixth

Amendment.        See Mickens, 535 U.S. at 173-74.         Given that a Watson-type

hearing was held here in an attempt to ensure Ibarra received effective

representation, we find no reason to stray from Smitherman and Vaughan.4 To

warrant reversal on the conflict issue, Ibarra must prove the conflict actually

adversely affected his counsel’s representation.

       B. Validity of Waiver.

       In an effort to sidestep the prejudice requirement discussed above, Ibarra

attacks the validity of his waiver of trial counsel’s conflict of interest.        Ibarra

argues trial counsel’s and the trial court’s failure to advise him that he could or

should seek the advice of independent counsel on whether he should waive any


       4
         Other jurisdictions have also held that an ineffective-assistance-of-counsel
claim premised on a structural “violation still requires a defendant to demonstrate actual
prejudice.” See, e.g., People v. Vaughn, 821 N.W.2d 288, 307-08 (Mich. 2012)
(discussing other cases).
                                           18


potential conflict of interest is an error that affects the very framework of the

process because of the conflict and the denial of representation by independent

counsel at a crucial stage of the proceeding. He passionately argues:

       To the extent Ibarra was advised of the risks of proceeding with the
       public defender’s office, he was advised by a participant in the
       conflict, and one with no evident expertise, as shown by the failure
       to make a meaningful record. Facing the absolute loss of his
       liberty, Ibarra was advised on a most critical matter of independent
       counsel by an agent of the organization whose effective ability and
       loyalty was being questioned. Ibarra lacked both the knowledge
       and autonomy to ask the tough questions of his counsel that might
       have given him some meaningful understanding of the risks
       inherent in his counsel’s conflicts. For that he needed truly
       independent counsel, like that given Brown. Without another
       knowledgeable and experienced voice on which he could rely,
       Ibarra could not obtain a full view of the issue on which his trial
       representation hinged.

Ibarra claims that he “was effectively without counsel during [the] conflict of

interest proceedings” and “[f]rom these circumstances, prejudice must be

presumed, and a new trial ordered.”          However, we need not determine the

validity of Ibarra’s waiver because we find, as discussed below, he has failed to

show his counsel’s performance was adversely affected by the alleged conflict of

interest in this case.     See Smitherman, 733 N.W.2d at 350 (“We need not

determine the validity of the defendant’s alleged waiver because we find the

defendant has failed to show his counsel’s performance was adversely affected

by the alleged conflict of interest in this case.”).

       C. Prejudice Resulting from Conflict.

       After the Watson hearing, the district court determined there was no need

for disqualification of Ibarra’s trial counsel, i.e., that the public defender office’s

continued representation of Ibarra did not create an impermissible conflict of
                                           19


interest. Under such circumstances, as discussed above, Ibarra must show an

adverse effect on counsel’s performance in order to prevail under either the Sixth

Amendment or article I, section 10 of the Iowa constitution. See Smitherman,

733 N.W.2d at 347. On our previous review of this case, we concluded “[t]here is

nothing in the record to suggest defense counsel’s performance was affected by

a conflict of interest.” Ibarra, 2013 WL 530558, at *9. On our second review of

the case, we stand on our original conclusion. Ibarra has failed to establish a

showing of prejudice as required by Smitherman and it progeny.

       D. Ineffective Assistance of Counsel.

       Ineffective-assistance-of-counsel claims are analyzed under the familiar

two-prong test set out in Strickland v. Washington, 466 U.S. 668, 687 (1984).

See Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015); State v. Ross, 845

N.W.2d 692, 697-98 (Iowa 2014).            To succeed on his claim of ineffective

assistance, Ibarra must prove both that (1) his counsel failed to perform an

essential duty, and (2) he suffered prejudice as a result of his counsel’s failure.

See Dempsey, 860 N.W.2d at 868.

       For the sake of Ibarra’s argument here, we assume without deciding his

trial counsel had a duty to inform him he could or should seek appointment of

independent counsel to advise him on whether or not he should waive any

conflict of interest and what that waiver might entail.5 Consequently, Ibarra must

show he suffered prejudice as a result of his counsel’s breach of duty.


       5
         Ibarra points to other jurisdictions that have specified that in similar
circumstances, trial counsel or the trial court must advise a defendant of the opportunity
to seek the advice of independent counsel when considering waiving a conflict of interest
and must make a detailed record that the defendant fully understands his right and the
                                             20


       Generally, the prejudice part of the test requires the applicant to establish

by a preponderance of the evidence that prejudice resulted from counsel’s failure

to perform an essential duty. See id. This is shown by proving that, but for

counsel’s unprofessional errors, there is a reasonable probability that the result

of the proceeding would have been different. See id. “In determining whether

this standard has been met, we must consider the totality of the evidence, what

factual findings would have been affected by counsel’s errors, and whether the

effect was pervasive or isolated and trivial.” Id. (citation and internal quotation

marks omitted). With these principles in mind, we turn now to Ibarra’s allegations

concerning his trial counsel’s ineffective performance.

       Ibarra only claims that if he had been advised he could have sought

independent counsel, he would have done so. He does not claim that he would

not have waived the conflict, nor does he make any assertions that his trial

counsel’s representation of him in trial was affected by the conflict. Indeed, it

implications of waiver of the conflict, including the inability to later appeal based upon the
waived conflict, citing Alcocer v. Superior Court, 206 Cal. App. 3d 951 (Cal. Ct. App.
1988), and Ryan v. Eighth Judicial District Court, 168 P.3d 703 (Nev. 2007). In both of
these cases, the defendants waived any potential conflict of interest and advised the
courts they wished to proceed with their current counsel. See Alcocer, 206 Cal. App. 3d
at 961; Ryan, 168 P.3d at 707. In both cases, the trial courts found the potential conflict
of the defendants’ chosen attorneys too great to overcome the defendants’ waivers of
any conflict, and the courts denied the defendants their chosen counsel. See Alcocer,
206 Cal. App. 3d at 956; Ryan, 168 P.3d at 707. In both cases, the defendants
appealed the ruling prior to their trials, and the appellate courts reversed the trial courts’
rulings and remanding for the courts to make a more detailed record of the defendants’
waivers. See Alcocer, 206 Cal. App. 3d at 961-64; Ryan, 168 P.3d at 707-11. Both
cases gave instructions to the attorneys and trial courts on what the waiver needed to
include to be sufficient, including advising the defendants of the opportunity to seek the
advice of independent counsel on waiving the potential conflict. See id.
         Perhaps a better practice would be to follow the directions of these cases for
seeking and approving a defendant’s waiver of a potential conflict-of-interest issue, but
we need not decide that here, since a hearing was held on the matter, Ibarra waived any
conflict, and trial was held. After the fact, as discussed above, Ibarra must now
demonstrate that his trial counsel’s performance was negatively affected by the conflict.
See Vaughan, 859 N.W.2d at 499-501.
                                         21


appears he has no bases to make any of those claims on this record. Ibarra’s

trial attorneys never represented Brown directly, nor was Brown’s representation

by other attorneys within the public defender office related to Ibarra’s case. This

is a stark contrast from Watson, where the same attorney represented the

defendant and the witness, and the attorney’s representation appeared to be

hindered by his dual representation. See 620 N.W.2d at 234, 241-42. Here, the

trial court ordered a “Chinese wall” constructed to prevent Ibarra’s attorneys from

gaining access to Brown’s files in the public defender office or information from

other attorneys in that office, and there is no evidence that Ibarra’s attorneys’

cross-examination of Brown was hindered by Brown’s representation by other

attorneys within the public defender office.       Moreover, the fact the public

defender office changed its rules after Ibarra’s appeal does not show that Ibarra

was prejudiced by his trial counsel’s representation. Because Ibarra failed to

show he was prejudiced by the conflict, we agree with the PCR court that Ibarra’s

ineffective-assistance-of-counsel claim concerning the conflict also fails.

       E. Intoxication Defense.

       Ibarra also claims his trial counsel was ineffective for failing to fully

investigate and present evidence of his intoxication relevant to that defense, such

as his history of alcohol abuse and depression. He basically argues his counsel

could have presented more information, such as his treatment records or an

expert. He asserts this information “may well have been the tipping point for a

not guilty verdict without exposing Ibarra to any risk.” However, we concur with

the PCR court’s assessment:
                                        22


      The record is replete with references, arguments and testimony
      relating to [Ibarra’s] drinking and intoxication in the hours preceding
      the incident. Not every issue requires expert testimony to have
      gravity. Here, the expert testified concerning the effects of drugs
      which may be unknown to the laity. The effects of alcohol, on the
      other hand, are well within their common experience.
              Trial counsel may well have determined, as the record
      supports, that there was sufficient evidence for a jury to conclude
      that [Ibarra] was intoxicated to the point of being unable to form
      specific intent. That they relied on the lay testimony . . . and used
      an expert to focus on the victim’s drug use is not unreasonable. It
      falls within that discretion and flexibility that must be accorded to a
      trial lawyer. With 20/20 hindsight, one can always find more that
      could have been done, or done differently. That is not the question,
      but whether enough was done to further the theory of the defense.
      It was.

      Moreover, even assuming without deciding his trial counsel breached a

duty in failing to gather and introduce more evidence, Ibarra has not established

the requisite prejudice. Like the PCR court, we are not persuaded that, but for

calling an expert concerning Ibarra’s intoxication and a little additional evidence

concerning Ibarra’s history of alcohol use, the result of this trial would have been

any different. Here, the evidence showed:

             Ibarra was told many times to leave the Wilson property. He
      returned on more than one occasion, the final time after others
      present had left. Ibarra was seen crouching by Wilson’s vehicle,
      and jumped out and attacked Wilson. He struck Wilson and
      continued to do so after Wilson begged him to stop. In addition, we
      note the violent nature of Wilson’s death—numerous stab wounds,
      some of which were very deep. These facts belie self-defense and
      provide substantial evidence from which the jury could find
      deliberation, premeditation, and malice aforethought.

See Ibarra, 2013 WL 530558, at *8-9. Considering the totality of the evidence,

we agree there is not a reasonable probability that the result of the proceeding

would have been different had this information been included. Accordingly, we
                                        23


agree with the PCR court that Ibarra’s ineffective-assistance-of-counsel claim

concerning his intoxication defense also fails.

       IV. Conclusion.

       Ibarra was required to establish he was prejudiced by his trial counsel’s

conflict of interest. However, Ibarra failed to establish any prejudice on either of

his claims of ineffective assistance of counsel. Accordingly, we affirm the PCR

court’s ruling denying Ibarra’s application for PCR.

       AFFIRMED.
