                      THE STATE OF SOUTH CAROLINA 

                           In The Supreme Court 


           Michael Gonzales, Petitioner, 


           v. 


           State of South Carolina, Respondent. 


           Appellate Case No. 2015-001553 




      ON WRIT OF CERTIORARI TO THE COURT OF APPEALS


                          Appeal from Spartanburg County 

                    Roger L. Couch, Post-Conviction Relief Judge
	


                               Opinion No. 27695 

                  Heard September 21, 2016 – Filed January 5, 2017 



                                   REVERSED


           Appellate Defender Susan Barber Hackett of Columbia,
           for Petitioner.

           Attorney General Alan McCrory Wilson and Assistant
           Attorney General Alicia A. Olive, both of Columbia, for
           Respondent.


ACTING JUSTICE PLEICONES: Petitioner was convicted of trafficking in
400 grams or more of methamphetamine. He was sentenced to thirty years'
imprisonment, and his conviction and sentence were affirmed on direct appeal.
State v. Gonzales, 360 S.C. 263, 600 S.E.2d 122 (Ct. App. 2004).1 Petitioner then
filed this post-conviction relief ("PCR") action, arguing his trial counsel had a
conflict of interest which adversely affected trial counsel's performance. The PCR
judge denied relief, and in a split decision, the Court of Appeals affirmed the PCR
judge's order. Gonzales v. State, 412 S.C. 478, 772 S.E.2d 557 (Ct. App. 2015).
Because we find the Court of Appeals erred in affirming the PCR judge's order
denying petitioner relief, we reverse the denial of petitioner's application for PCR.

                                        FACTS

Petitioner, who was a juvenile, lived with his mother and her longtime boyfriend,
Dino Perez. In 2001, at the request of petitioner's mother, trial counsel
successfully represented Perez in a drug related forfeiture action. Less than a year
later, in January 2002, petitioner was arrested for trafficking in marijuana over one
thousand pounds. At the request of petitioner's mother, trial counsel agreed to
represent petitioner on the trafficking charge. Three months later, in April 2002,
Perez was also arrested for trafficking in marijuana in excess of one thousand
pounds. At the request of petitioner's mother, trial counsel agreed to also represent
Perez on his trafficking charge.

In June 2002, petitioner was arrested on the charge of trafficking in
methamphetamine—the conviction which petitioner challenged at the PCR
proceeding leading to the case now before this Court. Trial counsel agreed to
represent petitioner on the trafficking in methamphetamine charge. Thus, as of
June 2002, trial counsel was simultaneously representing petitioner on his
trafficking in marijuana and trafficking in methamphetamine charges, as well as
representing Perez on his trafficking in marijuana charge.

One month later, in July 2002, while petitioner's and Perez's respective trafficking
in marijuana charges were still pending, petitioner was tried and convicted on his
trafficking in methamphetamine charge. Petitioner received a thirty year sentence,
and hired a different attorney to represent him on his direct appeal ("appellate
counsel").



1
    Later overruled in part by State v. Gentry, 363 S.C 93, 610 S.E.2d 494 (2005).
It is uncontroverted that prior to petitioner's July 2002 trial for trafficking in
methamphetamine, trial counsel knew: (1) petitioner was a juvenile; (2) petitioner's
mother had approached him twice to represent petitioner, and twice to represent
Perez; (3) petitioner and Perez had each been arrested on separate charges—
trafficking in marijuana in excess of one thousand pounds—in the same
geographical area within a three month period; (3) petitioner's mother had paid the
$50,000 attorney's fees for representation of both petitioner's and Perez's
trafficking in marijuana charges; (4) when petitioner's mother was "trying to find
money" to pay the additional $25,000 attorney's fee for petitioner's trafficking in
methamphetamine charge, trial counsel discussed with petitioner's mother using
the money he had assisted Perez in recovering in his 2001 forfeiture action; (5) a
check written from Perez's account for $3,220 was used to pay part of the
attorney's fee in petitioner's trafficking in methamphetamine case; and (6) the
remainder was paid by J&M Contractors.2

Despite all such indicators, trial counsel testified he never recognized the potential
for a conflict of interest. Therefore, prior to petitioner's July 2002
methamphetamine trial, trial counsel never discussed with petitioner or Perez the
potential for a conflict of interest or sought a waiver by either client. Trial counsel
also never discussed with petitioner that his attorney's fees were being paid for by a
third-party, and particularly a third-party who may have an adverse interest in
petitioner's case.

In 2003, under the advisement of appellate counsel, petitioner agreed to provide
federal authorities with substantial information as to Perez's wide-scale trafficking
operation in exchange for complete protection from federal prosecution.
Subsequently—after petitioner's methamphetamine trial, but while petitioner's and
Perez's marijuana charges were still pending—trial counsel was contacted by the
United States Attorney's Office regarding his representation of both petitioner and
Perez. Specifically, Perez's trafficking charge had become the subject of federal
jurisdiction, and trial counsel was contacted by several Assistant United States
Attorneys who warned there were allegations of a conspiracy between Perez and
petitioner in regards to the pending trafficking charges, and that petitioner was a
potential witness in the federal government's case against Perez. The United States

2
 At the PCR hearing, trial counsel testified he could not remember if J&M
Contractors was affiliated with Perez, petitioner, or petitioner's mother; however,
petitioner testified J&M Contractors was affiliated with Perez.
Attorney's Office informed trial counsel that based on the alleged conspiracy, his
common representation of Perez and petitioner created a conflict of interest.

Trial counsel withdrew from representation of Perez a short time thereafter. Trial
counsel then met with petitioner and explained that if petitioner were cooperating
with the federal government on the Perez marijuana investigation, it created a
conflict of interest for trial counsel, and petitioner needed to sign a waiver in order
for trial counsel to continue representing him. Petitioner denied any dealings with
Perez, or meeting with federal agents, but stated he needed to think about signing a
waiver.3 Trial counsel never heard from petitioner again. From Spring 2003 until
his formal withdrawal in 2004, the only information trial counsel received as to
petitioner was from appellate counsel, who was representing petitioner on a federal
material witness warrant in the case against Perez.

In July 2004, trial counsel filed a motion to be relieved as counsel in petitioner's
trafficking in marijuana case based on "certain actions undertaken by [petitioner] in
his own behalf," causing trial counsel a conflict of interest by "engaging in
negotiations . . . interviews, et cetera" with the federal government without
consulting with or informing trial counsel. By the time trial counsel confronted
petitioner about alleged cooperation with the federal government, petitioner had
already provided significant information to federal authorities regarding Perez's
business of trafficking in illicit drugs. Perez pleaded guilty to the federal
trafficking in marijuana charge.

Appellate counsel was appointed to represent petitioner on the state marijuana
charge. She negotiated on petitioner's behalf a five-year concurrent sentence on
the reduced charge of trafficking in marijuana 10–100 pounds. Petitioner was
sentenced to five years' imprisonment to run concurrently with the sentence for

3
  At the PCR hearing, petitioner admitted to "lying" when he told trial counsel after
his conviction on the methamphetamine charge that he did not have any connection
with Perez; petitioner claims he was not forthcoming because prior to his
trafficking in methamphetamine trial, he attempted to inform trial counsel of his
connection to Perez, and trial counsel refused to listen. Petitioner further admitted
that he was untruthful when he told trial counsel he was not cooperating with the
federal government in the case against Perez. Petitioner claims he withheld his
cooperation from trial counsel because, in part, he knew trial counsel still
represented Perez, and petitioner was scared of Perez both for his sake and his
mother's sake.
trafficking in methamphetamine. Petitioner then brought this PCR action claiming
trial counsel had a conflict of interest in representing both petitioner and Perez.

At the PCR hearing, trial counsel was asked whether, once made aware of the
conflict of interest, he attempted to file any type of motion on behalf of petitioner
to inform the circuit court there may have been a conflict of interest at the time of
petitioner's methamphetamine trial. Trial counsel responded that his remedy was
to move to be relieved as counsel on petitioner's marijuana charge. Trial counsel
further explained he did not seek a new trial on the methamphetamine conviction
because he did not believe he had a conflict of interest until petitioner became a
material witness against Perez, which occurred only after petitioner's
methamphetamine trial.

The PCR judge found trial counsel's testimony—that he was unaware of any
conflict of interest prior to petitioner's methamphetamine trial—was credible and
"supports Counsel's claims that he was not operating under a conflict of interest."
Accordingly, the PCR judge found petitioner failed to meet his burden of proving
there was a conflict of interest. The Court of Appeals disagreed with the PCR
judge's finding that there was not an actual conflict of interest; however, the Court
of Appeals' majority affirmed the PCR judge's denial of relief, concluding
petitioner failed to prove trial counsel recognized the conflict, and, therefore,
petitioner could not prove he was adversely affected by trial counsel's
performance. Gonzales v. State, 412 S.C. 478, 772 S.E.2d 557 (Ct. App. 2015).
We granted petitioner's petition for a writ of certiorari to review the decision of the
Court of Appeals.

                                        ISSUE

               Did the Court of Appeals err in holding that in order to
              prevail on his claim of ineffective assistance of counsel,
              petitioner was required to prove trial counsel recognized
                            an actual conflict of interest?

                                      ANALYSIS

Petitioner contends the Court of Appeals erred in holding that in order to succeed
on his claim of ineffective assistance of counsel, he had to prove trial counsel
recognized the existence of an actual conflict of interest. We agree.
A criminal defendant's Sixth Amendment right to effective assistance of counsel
includes a right to counsel "unhindered by a conflict of interest." Cuyler v.
Sullivan, 446 U.S. 335, 345–50, 355 (1980) (quoting Holloway v. Arkansas, 435
U.S. 475, 483 n. 5 (1978)). When counsel is burdened by an actual conflict of
interest, he "breaches the duty of loyalty, perhaps the most basic of counsel's
duties." Strickland v. Washington, 466 U.S. 668, 692 (1984). Due to the
seriousness of the breach and the difficulty in "measure[ing] the precise effect on
the defense of representation corrupted by conflicting interests," the Strickland
ineffective assistance of counsel standard is modified in actual conflict of interest
cases in that the defendant is not required to show prejudice. Strickland, 466 U.S.
at 692; see also Duncan v. State, 281 S.C. 435, 438, 315 S.E.2d 809, 811 (1984)
(quoting Cuyler, 446 U.S. at 348). In other words, a defendant is not required to
show prejudice in the traditional Strickland sense, i.e., that there is a reasonable
probability the result of the proceeding would have been different. Strickland, 466
U.S. at 692–94 (citing Cuyler, 446 U.S. at 345–50). Rather, "prejudice is
presumed" if the defendant demonstrates that counsel "'actively represented
conflicting interests' and that 'an actual conflict of interest adversely affected his
lawyer's performance.'" Strickland, 466 U.S. at 692 (quoting Cuyler, 446 U.S. at
350); see also Duncan, 281 S.C. at 438, 315 S.E.2d at 811 (quoting Cuyler, 446
U.S. at 348)); Lomax v. State, 379 S.C. 93, 102, 665 S.E.2d 164, 168 (2008).
An actual conflict of interest arises where:

             a defense attorney places himself in a situation inherently
             conducive to divided loyalties. If a defense attorney
             owes duties to a party whose interests are adverse to
             those of the defendant, then an actual conflict exists. The
             interests of the other client and the defendant are
             sufficiently adverse if it is shown that the attorney owes a
             duty to the defendant to take some action that could be
             detrimental to his other client.

Jordan v. State, 406 S.C. 443, 449, 752 S.E.2d 538, 541 (2013) (quoting Duncan,
281 S.C. at 438, 315 S.E.2d at 811 (quoting Zuck v. Alabama, 588 F.2d 436, 439
(5th Cir. 1979))). In a PCR proceeding, the applicant bears the burden of proving
her attorney had a conflict of interest necessitating relief. Jordan, 406 S.C. at 449,
752 S.E.2d at 541.
Generally, this Court gives great deference to the PCR court's findings of fact and
conclusions of law. Miller v. State, 379 S.C. 108, 115, 665 S.E.2d 596, 599
(2008). However, this Court will reverse the decision of the PCR court when it is
controlled by an error of law. Terry v. State, 383 S.C. 361, 371, 680 S.E.2d 277,
282 (2009) (citation omitted).

A majority of the Court of Appeals held an actual conflict of interest existed prior
to petitioner's trafficking in methamphetamine trial; we agree, and the State does
not challenge this assertion.

Notably, several events occurred between trial counsel's representation of
petitioner on the trafficking in marijuana charge beginning in January 2002, and
petitioner's trafficking in methamphetamine trial in July 2002, that, collectively,
demonstrate an actual conflict of interest existed. Those indicators are, inter alia:
Perez exhibiting an interest in petitioner's case when he paid, at least in part, if not
in full, petitioner's attorney's fees; a clear, close connection between petitioner's
mother and Perez; petitioner and Perez's arrests for trafficking in marijuana over
one thousand pounds in a very short time frame in the same geographical area; and
the unlikelihood that a juvenile would act independently when engaging in
trafficking over one thousand pounds of marijuana. We find particularly troubling
the fact that trial counsel admitted to discussing with petitioner's mother ways in
which she could come up with the money to pay petitioner's attorney's fees on the
methamphetamine charge, and one of the ways discussed was using the funds
recovered in Perez's forfeiture action in which he was represented by trial counsel.
See Wood v. Georgia, 450 U.S. 261, 268–69 (1981) (finding "inherent dangers []
arise when a criminal defendant is represented by a lawyer hired and paid by a
third party, particularly when the third party is the operator of the alleged criminal
enterprise."). Accordingly, we find the Court of Appeals correctly held an actual
conflict of interest existed due to trial counsel's representation of both petitioner
and Perez.

However, the Court of Appeals' majority then held, "Although an actual conflict
existed, because trial counsel did not recognize the conflict, Gonzales cannot
demonstrate the conflict affected trial counsel's performance." Gonzales, 412 S.C.
at 498, 772 S.E.2d at 567–68 (emphasis supplied). We find this assertion—which
suggests that only an attorney who intentionally violates his duty of loyalty has a
conflict of interest—amounts to an error of law. Stated another way, the Court of
Appeals' majority opinion is tantamount to holding that regardless of how
egregious the evidence may be that an actual conflict of interest exists, unless the
attorney acknowledges the conflict, it cannot be shown the conflict adversely
affected the attorney's performance. We find that such a holding is contrary to this
Court's precedent. See, e.g., Jordan, 406 S.C. 443, 752 S.E.2d 538 (2013)
(demonstrating trial counsel's testimony stopped short of acknowledging the
existence of an actual conflict of interest); cf. State v. Gregory, 364 S.C. 150, 153,
612 S.E.2d 449, 450–51 (2005); Duncan, 281 S.C. 435, 315 S.E.2d 809 (1984).

While trial counsel's failure to recognize the actual conflict may have resulted in
his inability to provide effective assistance of counsel, his recognition of the
conflict is not required to show it adversely affected trial counsel's performance.
See Duncan, 281 S.C. at 438, 315 S.E.2d at 811 (holding in conflict of interest
inquires, prejudice is presumed where the defendant demonstrates counsel
"actively represented conflicting interests" and that an "actual conflict of interest
adversely affected his lawyer's performance" (citations omitted)); cf. Cuyler, 446
U.S. at 347 (finding an attorney representing two defendants in a criminal matter is
in the best position professionally and ethically to determine when a conflict of
interest exists or may develop in the course of a trial (citing Holloway, 435 U.S. at
485 (quoting State v. Davis, 110 Ariz. 29, 31 (1973)))).

Evidence that the actual conflict of interest adversely affected trial counsel's
performance is demonstrated by his failure to advise petitioner as to favorable
options he may have otherwise exercised—favorable options appellate counsel
successfully negotiated in both the federal and state context. Cf. Strickland, 466
U.S. at 692 (noting the difficulty in "measure[ing] the precise effect on the defense
of representation corrupted by conflicting interests."); United States v. Almany, 621
F.Supp.2d 561, 569–70 (E.D. Tenn. 2008) (finding where an attorney represents
two members of a drug distribution conspiracy, the lack of effort by the attorney to
explore his client's potential for a plea agreement or cooperate with the
"Government" was, "in itself, strong evidence of a conflict," and noting,
"Exploring possible plea negotiations is an important part of providing adequate
representation of a criminal client, and this part is easily precluded by a conflict of
interest" (citing United States v. Hall, 200 F.3d 962, 965 (6th Cir. 2000); United
States v. McLain, 823 F.2d 1457, 1464 (11th Cir. 1987) (citing Holloway, 435 U.S.
at 490); Newman v. United States, 1998 WL 553048, at *3 (6th Cir. 1998);
Mannhalt v. Reed, 847 F.2d 576, 582 (9th Cir. 1988); United States v. Lopez, 989
F.2d 1032, 1043, amended and superseded by United States v. Lopez, 4 F.3d 1455
(9th Cir. 1993); United States v. Tatum, 943 F.2d 370, 376 (4th Cir. 1991); United
States v. Balsirov, 2005 WL 1185810 (E.D. Va. 2005)). Indeed, a lieutenant
involved in the state investigations of petitioner and Perez testified at the PCR
hearing that the conflict of interest "absolutely" hindered law enforcement's ability
to secure cooperation from petitioner prior to Perez being transferred to federal
jurisdiction. And an Assistant United States Attorney testified there was "no
question" had petitioner been available for cooperation before his
methamphetamine trial, their office would have appealed to state prosecutors
advocating petitioner receive favorable treatment for his extensive cooperation in
the Perez investigation.

In conclusion, we hold that regardless whether an attorney recognizes an actual
conflict of interest, if the conflict adversely affected the attorney's performance, the
applicant has established his entitlement to relief. Accordingly, we find the Court
of Appeals erred as a matter of law in determining that because trial counsel failed
to recognize the actual conflict of interest, petitioner could not show he was
adversely affected, and that he therefore failed to meet his burden of proof.

                                   CONCLUSION

For the foregoing reasons, we reverse the decision of the Court of Appeals.

BEATTY, C.J., KITTREDGE, HEARN and FEW, JJ., concur.
