                                         No.112,575

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                     STATE OF KANSAS,
                                         Appellee,

                                              v.

                                    DESHAWN JACKSON,
                                        Appellant.


                              SYLLABUS BY THE COURT

1.
       An appellate court reviews the trial court's denial of a postsentencing motion to
withdraw plea for an abuse of discretion.


2.
       An abuse of discretion occurs when a judicial action (1) is arbitrary, fanciful, or
unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial
court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal
conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does
not support a factual finding on which a prerequisite conclusion of law or the exercise of
discretion is based.


3.
       In reviewing the trial court's denial of a motion to withdraw plea, an appellate
court will defer to the trial court's factual findings so long as those findings are supported
by substantial competent evidence.




                                               1
4.
       A defendant has the burden of proving that the trial court abused its discretion.


5.
       The Sixth Amendment to the United States Constitution guarantees the right to
effective assistance of counsel. This right, made applicable to the states through the
Fourteenth Amendment to the United States Constitution, requires more than the
presence of an attorney; it guarantees the right to effective assistance from the attorney.


6.
       A counsel owes the client a duty of loyalty and a duty to avoid conflicts of
interest.


7.
       A defense attorney has the obligation, upon discovering a conflict of interest, to
advise the court at once of the problem.


8.
       When a defense attorney is representing two defendants in a criminal matter, the
defense attorney is in the best position professionally and ethically to determine when a
conflict of interest exists or will probably develop in the course of trial.


9.
       When a trial court is notified of a potential conflict of interest faced by a criminal
defense attorney, the court is required to make an appropriate in-depth inquiry into the
conflict. If an appropriate inquiry is made, the trial court's decision to deny a motion to
withdraw is reviewed under the abuse of discretion standard.




                                               2
10.
       When a defendant alleges that an attorney's multiple representations created a
conflict of interest resulting in ineffective assistance of counsel and there was no
objection, that defendant must prove (1) that he or she had an actual conflict of interest
with counsel, and (2) that this conflict of interest adversely affected the adequacy of his
or her attorney's representation.


11.
       If a defendant can prove that a conflict affected the adequacy of his or her
attorney's representation, then the defendant need not demonstrate prejudice in the
traditional sense, which requires the defendant to prove that counsel's deficient
performance affected the outcome of the trial, due to the difficulty of establishing such a
claim in cases based on conflicting loyalties.


12.
       Attorneys owe ethical obligations to both former and current clients and an
obligation to avoid representing clients where there is a conflict of interest with either
former or current clients.


13.
       To waive the right to conflict-free counsel, a defendant's waiver must be knowing,
voluntary, and done with an awareness of relevant circumstances and likely
consequences.


14.
       A negotiation of a plea bargain is a critical phase of litigation for purposes of the
Sixth Amendment right to effective assistance of counsel.




                                              3
15.
       A defendant is entitled to a conflict-free defense attorney during the plea-bargain
process.




       Appeal from Seward District Court; CLINT PETERSON, judge. Opinion filed November 25, 2015.
Reversed and remanded with directions.


       Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.


       Russell W. Hasenbank, county attorney, and Derek Schmidt, attorney general, for appellee.


Before GREEN, P.J., HILL, J., and TIMOTHY G. LAHEY, District Judge, assigned.


       GREEN, J.: Deshawn Jackson appeals the trial court's denial of his postsentencing
motion to withdraw plea. On appeal, Jackson argues that there are two reasons the trial
court erred when it denied his motion. First, Jackson argues that he has established that
his attorney, Aaron Gipson, coerced him into accepting the plea agreement by telling him
that if he rejected the plea agreement he would receive the maximum possible sentence.
Second, Jackson argues that Gipson provided ineffective assistance of counsel due to a
conflict of interest that adversely affected his representation. Although Jackson's
argument regarding coercion fails, Jackson successfully shows that Gipson had a conflict
of interest that adversely affected his representation. Thus, the trial court erred when it
denied Jackson's motion to withdraw plea. Consequently, we reverse Jackson's conviction
and remand to the trial court with directions to grant his motion to withdraw plea.


       Jackson was convicted of aggravated battery in Seward County case number
10CR545. Jackson's codefendant in this case was Francisco Beltran. Although it is
unclear exactly with what the State charged Beltran, the Seward County case number
associated with Beltran's case is 10CR546. Attorney Aaron Gipson represented Beltran in
                                                  4
10CR546. Ultimately, both Jackson and Beltran received probation for their convictions
in 10CR545 and 10CR546 respectively.


       On November 26, 2011, while Jackson was on probation for 10CR545, Jackson
and his girlfriend, Alexandra Duran, got into an argument at their home. During the first
part of the argument, Jackson grabbed Duran by the neck and told her that he would hurt
her if she did not give him gas money. Later, Jackson told Duran to lie on her stomach
with her hands behind her back on the bed. As Duran lay on the bed, Jackson bound
Duran's hands together with shoelaces and placed tape over her mouth. Then, Jackson
forced Duran into a bathtub filled with running water. Jackson attempted to force Duran's
head under the water several times before the tape fell off and she was able to get one of
her bound hands loose.


       After Duran got free, Jackson took Duran to his sister's house. Jackson's sister,
Lani Jackson, and Lani's boyfriend were inside the house. Duran, who still had a shoelace
bound around one of her wrists, saw both Lani and Lani's boyfriend as Jackson forced her
into the house. Lani and her boyfriend were sitting together on a bed when Duran
overheard Jackson tell Lani that he was tired of Duran and that he was going to take her
out and kill her. Although Duran later testified at the preliminary hearing that she did not
know the identity of Lani's boyfriend, Jackson's presentence investigation report
identified the man sitting on the bed with Lani as Francisco Beltran.


       Eventually, Jackson, Duran, and Lani went to a gas station. Jackson told Duran to
go into the gas station and buy some juice. Once Duran went inside the gas station, she
called the police.


       The police arrested Jackson and brought Duran to the police station for an
interview. During the interview, the investigating police officer observed that Duran had


                                             5
red welts and slightly broken skin around both of her wrists. The investigating police
officer also observed that the bottom of Duran's shirt was wet.


       On November 30, 2011, in Seward County case number 11CR411, the State
charged Jackson with the following: one count of attempted first-degree murder, a
severity level 1 person felony, in violation of K.S.A. 2011 Supp. 21-5402(a)(1); one
count of aggravated kidnapping, a severity level 1 person felony, in violation of K.S.A.
2011 Supp. 21-5408(b); one count of aggravated robbery, a severity level 3 person
felony, in violation of K.S.A. 2011 Supp. 21-5420(b); and one count of aggravated
battery, a severity level 7 person felony, in violation of K.S.A. 2011 Supp. 21-
5413(b)(1)(B). Furthermore, because of the 11CR411 charges, the State moved to revoke
Jackson's probation in 10CR545.


       On December 1, 2011, the trial court appointed Gipson to represent Jackson in
11CR411. Gipson was also appointed to represent Jackson on his probation revocation in
10CR545. Beltran, Gipson's former client in 10CR546, had been subpoenaed as a State's
witness against Jackson in 11CR411.


       Furthermore, Gipson was also reappointed to represent Beltran. It seems that the
State had moved to revoke Beltran's probation in 10CR546. It is unclear from the record
why the State moved to revoke Beltran's probation. It is also unclear from the record the
exact date Gipson was reappointed to represent Beltran on the probation revocation in
10CR546. At Jackson's motion to withdraw plea hearing, however, Gipson testified that
Beltran's probation was revoked on January 20, 2012. Thus, for a time, Gipson was
concurrently representing both Jackson and Beltran.


       On December 28, 2011, the trial court held a preliminary hearing in 11CR411.
Beltran did not testify at the preliminary hearing. Then, on March 5, 2012, Jackson
entered into a plea agreement with the State.

                                             6
       Under the plea agreement, the State amended the charges against Jackson. The
State amended the one count of first-degree attempted murder to one count of second-
degree attempted murder, a severity level 4 person felony, in violation of K.S.A. 2011
Supp. 21-5403 and K.S.A. 2011 Supp. 21-5301. Furthermore, the State dismissed the
remaining charges against Jackson. The State also agreed to recommend that the trial
court impose the standard sentence for the attempted second-degree murder count so long
as Jackson stipulated his sentence in 11CR411 would be consecutive to his underlying
sentence in 10CR545; it seems Jackson's probation in 10CR545 had been revoked.


       In accordance with this agreement, Jackson pled no contest to one count of
attempted second-degree murder. During the plea colloquy, Jackson stated that no one
had threatened him into accepting the plea agreement. Additionally, Jackson stated that
he was satisfied with Gipson's representation. The trial court ultimately accepted
Jackson's no contest plea. In 11CR411, the trial court sentenced Jackson to 71 months'
imprisonment followed by 24 months' postrelease supervision. The trial court ordered
that Jackson's sentence in 11CR411 run consecutive to Jackson's sentence in 10CR545.
The journal entry of judgment in 11CR411 indicates that Jackson's sentence in 10CR545
was 16 months' imprisonment.


       In March 2013, Jackson moved to withdraw his no contest plea in 11CR411. In his
pro se motion, Jackson alleged that Gipson threatened him into accepting the plea
agreement, telling him that he would receive the maximum sentence if he went to trial.
Jackson also alleged that Gipson's dual representation of both him and Beltran was a
conflict of interest that resulted in ineffective assistance of counsel.


       The trial court appointed counsel to represent Jackson on his motion to withdraw
plea. A hearing on this motion was held in April 2014. The only evidence presented at
this hearing was the testimony of Jackson and Gipson. Jackson testified that Gipson had
threatened him into accepting the plea by telling him that he would receive the maximum

                                               7
sentence for all of his charges if he went to trial. Moreover, Jackson testified that he
believed that Gipson's dual representation of him and Beltran was a conflict of interest
that limited Gipson's representation. Jackson further testified that Gipson hid the fact that
he had a conflict of interest. Jackson asserted that Gipson never told him that he was also
representing Beltran, and he only learned that Gipson was representing Beltran following
his conviction.


       Gipson testified that he never threatened Jackson. Gipson testified that he simply
told Jackson that the prosecutor had told him he would be pursuing the maximum
sentence for each charge against Jackson if Jackson did not accept the plea. Gipson also
testified that he told Jackson that he was also representing Beltran. Gipson testified that
Jackson told him that he was "okay" with this because Beltran "wasn't really a witness to
anything." Furthermore, without prompting, Gipson brought up the fact that he never
obtained a signed written waiver from Jackson. At the hearing, Jackson's attorney asked
Gipson the following, "And the issue that we have in this case is that at no point was it
waived that there was a conflict between the representation of those number of people; is
that right?" Gipson responded, "No, that's not right. It wasn't written. I never had him
sign it. But in speaking to him, he waived it, not on the record, but with me, yes."


       The trial court denied Jackson's motion to withdraw plea. Regarding Jackson's
allegation that Gipson had threatened him to accept the plea, the trial court found that
Gipson's testimony was more credible. Regarding Jackson's allegation that Gipson had a
conflict of interest resulting in ineffective assistance of counsel, the trial judge stated that
Gipson's concurrent representation of Jackson and Beltran was troubling. Nevertheless,
the trial judge found that even though there was a conflict and Gipson should have
obtained Jackson's waiver of the conflict in writing, he believed that Gipson told Jackson
that he was also representing Beltran. Thus, the trial court found that Jackson had not
established manifest injustice to withdraw his plea because Jackson was aware of the
conflict and had received the benefit of his plea bargain.

                                               8
Did the Trial Court Err When It Denied Jackson's Motion to Withdraw Plea?


       On appeal, Jackson asserts that the trial court erred when it denied his motion to
withdraw plea for two reasons. First, Jackson argues that he was coerced into accepting
the plea agreement because Gipson told him he would receive the maximum possible
prison sentence if he rejected the plea agreement. Second, Jackson argues that Gipson
provided ineffective assistance of counsel because he had a conflict of interest which
adversely affected his representation. As discussed below, Jackson fails to establish that
Gipson coerced him into accepting the plea agreement. Nevertheless, Jackson
successfully establishes that he had a conflict of interest with Gipson and that this conflict
of interest adversely affected Gipson's representation. Thus, the trial court erred when it
denied Jackson's motion to withdraw plea. As a result, this court reverses Jackson's
conviction and remands the case to the trial court with directions to grant Jackson's
motion to withdraw plea.


Standard of Review


       K.S.A. 2014 Supp. 22-3210(d)(2) states: "To correct manifest injustice the court
after sentence may set aside the judgment of conviction and permit the defendant to
withdraw the plea." Manifest injustice exists if something is "obviously unfair or
shocking to the conscience." State v. Barahona, 35 Kan. App. 2d 605, 608-09, 132 P. 3d
959 (2006). In determining whether the defendant has established manifest injustice, this
court should consider the following factors: "(1) whether the defendant was represented
by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or
unfairly taken advantage of; and (3) whether the plea was fairly and understandingly
made." State v. Bricker, 292 Kan. 239, 244, 252 P.3d 118 (2011).




                                              9
       An appellate court reviews a trial court's denial of a postsentencing motion to
withdraw plea for an abuse of discretion. Bricker, 292 Kan. at 244. An abuse of
discretion occurs when a judicial action


       "(1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken
       the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is
       guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if
       substantial competent evidence does not support a factual finding on which a prerequisite
       conclusion of law or the exercise of discretion is based." State v. Macias-Medina, 293
       Kan. 833, 836, 268 P.3d 1201 (quoting State v. Ward, 292 Kan. 541. Syl. ¶ 3, 256 P.3d
       801 [2011]).


       In reviewing the trial court's denial of a motion to withdraw plea, this court will
defer to the trial court's factual findings so long as those findings are supported by
substantial competent evidence. State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425
(2011). Moreover, the defendant has the burden of proving that the trial court abused its
discretion. Bricker, 292 Kan. at 244.


Coercion Argument


       Jackson argues that Gipson coerced him into accepting the plea agreement by
telling him that he would receive the maximum prison sentence for each count the State
had charged him with in 11CR411 if he did not accept the plea agreement. Thus, Jackson
contends that this court must let him withdraw his plea.


       Nevertheless, Gipson's testimony contradicts Jackson's argument. At Jackson's
motion hearing, Gipson testified that he never coerced Jackson into accepting the plea
agreement. Instead, Gipson testified that he let Jackson know that the prosecutor had told
him that he would be asking for the maximum sentence upon Jackson's conviction if
Jackson rejected the plea agreement and went to trial. In denying Jackson's motion to

                                                     10
withdraw plea, the trial judge found that Gipson had not threatened or coerced Jackson
into accepting the pleas by telling him he would receive the maximum sentence. The trial
court further found that Gipson was simply letting Jackson know what the prosecutor had
told him. Thus, the trial court made a determination that Gipson's testimony was more
credible than Jackson's testimony.


       As previously stated, this court does not "reweigh evidence or assess witness
credibility," giving deference to the trial court's factual findings so long as those findings
are supported by substantial competent evidence. Anderson, 291 Kan. at 855. Here,
Gipson's testimony supported the trial court's finding. Given that the trial court made a
credibility determination which was supported by substantial competent evidence, this
court must defer to the trial court's finding on this issue. Consequently, Jackson's
argument that the trial court erred in denying his motion to withdraw plea because he was
coerced into accepting the plea fails.


Conflict of Interest Argument


       The Sixth Amendment to the United States Constitution guarantees the right to
effective assistance of counsel. "This right, made applicable to the states through the
Fourteenth Amendment to the United States Constitution, requires more than the
presence of an attorney; it guarantees the right to effective assistance from the attorney."
State v. Galaviz, 296 Kan. 168, 174, 291 P.3d 62 (2012) (citing Strickland v. Washington,
466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 [1984]).
In accordance with this right, "'counsel owes the client a duty of loyalty, a duty to avoid
conflicts of interest.'" Galaviz, 296 Kan. at 174 (quoting Strickland, 466 U.S. at 688).


       In Mickens v. Taylor, 535 U.S. 162, 168-69, 122 S. Ct. 1237, 152 L. Ed. 2d 291,
reh. denied 535 U.S. 1074 (2002), the United States Supreme Court held that when an
attorney actively represents conflicting interests and there is no objection to such

                                              11
representation, a defendant alleging ineffective assistance of counsel based on this
conflict must prove that the conflict actually adversely affected his or her attorney's
representation. See also Galaviz, 296 Kan. at 183-84. Thus, when a defendant alleges that
an attorney's multiple representations created a conflict of interest resulting in ineffective
assistance of counsel and there was no objection, that defendant must prove: (1) he or
she had an actual conflict of interest with counsel, and (2) this conflict of interest
adversely affected the adequacy of his or her attorney's representation. If a defendant can
prove that a conflict affected the adequacy of his or her attorney's representation, then the
defendant "'need not demonstrate prejudice in the traditional sense, which requires the
defendant to prove that counsel's deficient performance affected the outcome of the trial,
due to the difficulty of establishing such a claim in cases based on conflicting loyalties.'"
State v. Stovall, 298 Kan. 362, 375, 312 P.3d 1271 (2013) (quoting Boldridge v. State,
289 Kan. 618, 622-23, 215 P.3d 585 [2009]).


       On appeal, Jackson argues that his right to an effective, conflict-free, attorney was
violated. Jackson contends that Gipson's representation of him and Beltran constituted a
conflict of interest. Moreover, Jackson contends that this conflict adversely affected
Gipson's representation of him in three ways: (1) the conflict resulted in Gipson
threatening him that he would receive the maximum sentence if he did not accept the plea
agreement; (2) the conflict resulted in Gipson violating the Kansas Rules of Professional
Conduct (KRPC); and (3) the conflict impacted Gipson's mindset while negotiating the
plea and explaining the plea, resulting in Gipson encouraging him to take the plea deal to
avoid any further conflict.


Did a Conflict of Interest Exist?


       "[A]ttorneys owe ethical obligations to both former and current clients and an
obligation to avoid representing clients where there is a conflict of interest with either
former or current clients." Galaviz, 296 Kan. at 178-79. In Kansas, the KRPC governs

                                              12
whether a concurrent conflict of interest exists. Under KRPC 1.7 (2014 Kan. Ct. R.
Annot. 531) (conflict of interest), a concurrent conflict of interest exists when


       "(1) the representation of one client will be directly adverse to another client; or (2) there
       is a substantial risk that the representation of one or more clients will be materially
       limited by the lawyer's responsibilities to another client, a former client or a third person
       or by a personal interest of the lawyer."


       Here, Gipson had represented Beltran in 10CR546, a case in which Beltran and
Jackson were codefendants. Thus, when Gipson was appointed to represent Jackson on
his charges in 11CR411, he had an ongoing obligation to Beltran as a former client.
Beltran, however, was a State's witness against Jackson in 11CR411. Therefore, Jackson
and Beltran had conflicting interests.


       Furthermore, at some point during Gipson's representation of Jackson in
11CR411, the State moved to revoke Beltran's probation in 10CR546. Gipson was
reappointed to represent Beltran on the probation revocation in 10CR546. This means
that during Gipson's representation of Jackson in 11CR411, Gipson was additionally
representing Beltran on his probation revocation in 10CR546. Thus, for a time, Gipson
had concurrent clients with conflicting interests.


       The facts of this case are very similar to the facts of State v. Jenkins, 257 Kan.
1074, 1080, 898 P.2d 1121 (1995) (overruled on other grounds by Galaviz, 296 Kan. 168,
Syl. ¶ 7). In Jenkins, Jenkins' attorney had previously represented the State's key witness
in Jenkins' case on multiple occasions. Moreover, during Jenkins' case, the attorney was
reappointed to represent the State's key witness on an unrelated charge. Given those
circumstances, the Jenkins court held that there was clearly a conflict of interest because
the attorney had to attack the credibility of the State's key witness, who was her client in
another case, to advocate for Jenkins. 257 Kan. at 1080.


                                                     13
       As in Jenkins, a conflict of interest clearly exists in this case. Gipson had a duty to
advocate zealously for Jackson in 11CR411. Nevertheless, Gipson also had a duty to
protect the interests of Beltran, who was the State's witness against Jackson and who was
facing the possibility of probation revocation.


       The dissent states that Beltran was not a key witness as to any of the alleged
crimes committed in this case, asserting that the comparison of the facts of Jackson's case
to Jenkins is misplaced. For example, the dissent says that "[t]he record is devoid of any
factual suggestion or circumstance that would indicate Beltran had any material
information about the crime-he was not a witness to any material element of the crime."
The record does not support the dissent's assertion. Moreover, the trial court never made
such a finding when it denied Jackson's motion to withdraw.


       The dissent seems to ignore the fact that Jackson was charged not only with
attempted first-degree murder but also with aggravated kidnapping, aggravated robbery,
and aggravated battery. The reasoning of the dissent can be reconstructed into the
following syllogism:


Major premise: Only witnesses who are present when a crime is committed will have
material information about the crime.


Minor premise: Beltran was not present when the initial crimes occurred.


Conclusion: Therefore, Beltran will not have any material information about these
crimes.


       This is a logical non sequitur to conclude from the major premise that because
Beltran was not present when the alleged crimes occurred that he would have no material
information about any of these crimes. As the dissent points out, Beltran was at Lani's

                                             14
house when Jackson allegedly forced Duran, the alleged victim, who still had a shoelace
bound around one wrist and visible red welts around the other wrist, into the house.
While inside Lani's house, Duran allegedly heard Jackson tell Lani that he was tired of
Duran and that he was going to take her out and kill her. Because Beltran and Lani were
sitting next to each other on the bed when Duran overheard Jackson make this statement
to Lani, it is very likely that Beltran would have overheard this same statement.
Moreover, it is very likely that Beltran would have seen Duran with one wrist bound with
a shoelace and with visible red welts around her other wrist. Thus, the State would have
certainly wanted to call Beltran as a corroborating witness for some of the charges filed
against Jackson.


       On the face of it, the fact that Beltran was not present when Jackson allegedly tried
to kill Duran does not mean that Beltran would be incapable of having any material
information about one or more of these crimes. Thus, the dissent's reasoning is flawed.


       If Jackson had gone to trial, the State would have called Beltran as a corroborating
witness. Consequently, as in Jenkins, a conflict of interest clearly existed because Gipson
was not only representing Jackson in 11CR411 but was also representing Beltran on his
probation revocation in 10CR546, a case in which Jackson and Beltran were
codefendants. As a result, Jackson has established an actual conflict of interest existed
with Gipson's representation of him in 11CR411.


Did Jackson Waive the Conflict of Interest?


       In denying Jackson's motion, the trial judge stated that he believed Gipson when
Gipson testified that he told Jackson that he was also representing Beltran. Although the
trial judge did not specifically find that Jackson had orally waived his right to a conflict-
free attorney, as Gipson had testified, it seems that the trial judge made a credibility
determination that Gipson was telling the truth about the discussion in which he alleges

                                              15
that Jackson waived his right to a conflict-free attorney. Regardless of the trial court's
findings, the record does not support that Jackson made an adequate waiver of his right to
conflict-free counsel.


       In Boldridge v. State, 289 Kan. at 626, our Supreme Court noted that under the
KRPC the right to conflict-free counsel may be waived only if each affected client gives
informed consent which is confirmed in writing. See KRPC 1.7(b)(4) (2014 Kan. Ct. R.
Annot. 531). Although the Boldridge court recognized that there are some instances
where statements made on the record can be substituted for informed consent in writing,
the Boldridge court emphasized that "an oral statement by a defendant accepting
counsel's appointment, without more, does not satisfy the waiver requirements." 289 Kan.
at 626. Moreover, in State v. Bowen, 27 Kan. App. 2d 122, 129, 999 P.2d 286 (2000), this
court held that to waive the right to conflict-free counsel, a defendant's "waiver must be
knowing, voluntary, and done with an awareness of relevant circumstances and likely
consequences."


       In this case, there was no waiver of the right to conflict-free counsel in writing.
Instead, the only evidence supporting that Jackson waived the conflict was Gipson's
testimony at the motion hearing that Jackson orally waived the conflict. According to
Gipson, that oral waiver occurred after he and Jackson discussed the fact that he had also
been appointed to represent Beltran.


       Given those facts, Jackson could not have waived his right to conflict-free counsel.
First, Jackson could not have waived his right to conflict-free counsel because he never
made an informed waiver in writing. It is uncontested that if Jackson waived his right to a
conflict-free attorney, he did so orally. This alleged waiver is also problematic because at
the motion to withdraw plea hearing, without prompting, Gibson acknowledged he never
obtained a signed written waiver of the conflict from Jackson. This indicates Gibson
knew he was supposed to obtain a written waiver, not an oral waiver, but failed to do so.

                                              16
Our Supreme Court has held that an oral statement by a defendant, without further
support, cannot constitute a valid waiver of that defendant's right to a conflict-free
attorney; therefore, Jackson did not waive his right to a conflict-free attorney. See
Boldridge 289 Kan. at 626.


         Second, Jackson could not have waived his right to a conflict-free attorney
because Gipson's testimony clearly shows that Jackson's waiver was not made knowingly
or made with an awareness of the relevant circumstances or likely consequences. Again,
Gipson never testified that he and Jackson discussed the potential problems which could
arise from him concurrently representing Beltran. Gipson never testified that he explained
to Jackson that he had an ethical duty to both Beltran and Jackson. For example, the
record lacked any discussion between Gipson and Jackson on whether he could continue
to represent Jackson if Jackson refused to accept a plea deal with the State. Moreover, the
record contains no discussion between Gipson and Jackson on whether this conflict
would diminish Gipson's usefulness to Jackson. In other words, would Gipson's
representation of Jackson be as effective as it might have been if the conflict did not
exist?


         Gipson simply testified that Jackson orally waived his right to a conflict-free
attorney after he told Jackson that he was also representing Beltran.


         Because Jackson's waiver was not made knowingly or made with an awareness of
the relevant circumstances or likely consequences, Jackson did not waive his right to a
conflict-free attorney. At the very least, Gipson's testimony provided too little
information for the trial court to have found or for this court to find that Jackson made a
knowing waiver of his right to conflict-free counsel.


         Third, nothing in the record on appeal indicates that Gipson ever attempted to
obtain a waiver of conflict from Beltran. Under KRPC 1.7(b)(4), the right to conflict-free

                                              17
counsel may be waived only if each affected client gives informed consent which is
confirmed in writing. Although the KRPC does not provide substantive or procedural law
in criminal proceedings (see State v. Stovall, 298 Kan. 362, 372, 312 P.3d 1271 [2013]),
it seems unworkable for this court to find that Jackson made a valid waiver of the conflict
given that there is no evidence that Gipson ever even discussed that a conflict of interest
existed with Beltran.


       Nevertheless, the dissent argues that because the trial court made a credibility
determination that it believed Gipson, Jackson should not be allowed to withdraw his plea
because he knew about the conflict all along yet voluntarily entered a favorable plea. The
dissent seems to forget that even if Jackson knew about the conflict all along, this does
not mean that Jackson made a valid waiver of the conflict. In Jackson's case, at best, there
was an oral waiver to the conflict without any discussion of the relevant circumstances or
likely consequences of the waiver. As previously detailed, such an oral waiver is invalid
both under Boldridge and Bowen. Thus, even if Jackson was aware that Gipson was
representing Beltran in another case, Jackson did not make a valid waiver of the conflict
of interest.


Did the Conflict of Interest Adversely Affect the Adequacy of Gipson's Representation?


       In his brief, Jackson argues that the conflict of interest adversely affected the
adequacy of Gipson's representation in three ways. First, Jackson argues that the conflict
resulted in Gipson threatening him by telling him that he would receive the maximum
sentence if he did not accept the plea agreement. Second, Jackson argues that the conflict
resulted in Gipson violating the KRPC. Third, Jackson argues that the conflict impacted
Gipson's mindset while negotiating the plea and explaining the plea to him.


       First, in making the argument that the conflict resulted in Gipson threatening him
to take the plea agreement, Jackson essentially repeats his argument that Gipson coerced

                                             18
him into accepting the plea agreement. In essence, Jackson argues that the conflict of
representing both him and Beltran resulted in Gipson threatening him into accepting the
plea agreement or else he would receive the maximum possible prison sentence. As
previously discussed, however, the trial court determined that Gipson's testimony was
more credible than Jackson's testimony regarding the alleged threat. Because the trial
court made a credibility determination and Gipson's testimony supports this
determination, this court must defer to the trial court's finding that Jackson was not
coerced into accepting the plea agreement by the threat of receiving the maximum
possible punishment if he went to trial. Thus, Jackson's argument that the conflict
resulted in Gipson threatening him into accepting the plea agreement fails.


       Second, Jackson's argument that the conflict resulted in Gipson violating the
KRPC fails because Jackson never explained how the conflict of interest resulted in
Gipson's failure to follow KRPC procedures. In making this argument, Jackson details
how Gipson violated KRPC 1.7. Then, Jackson states: "Gipson's failure to follow the
procedure for a client waiver of a conflict indicates that the conflict substantially affected
his performance." Jackson begs the question with this assertion; however, he never
explains how Gipson's conflicting ethical duties between him and Beltran substantially
affected Gipson's performance. Instead, Jackson asks this court to assume that it was the
conflict that resulted in Gipson's failure to comply with the KRPC. Nevertheless, without
more, there is not enough evidence to support this conclusion. Therefore, Jackson's
second argument why the conflict adversely affected Gipson's representation fails.


       Unlike his first two arguments, Jackson's third argument has merit. In his third
argument, Jackson contends that the conflict adversely affected Gipson's mindset while
negotiating the plea and explaining the plea to him. Jackson argues that Gipson had to
encourage him to accept the plea deal or else Gipson would "be placed in a position of a
continued conflict of interest with [him] and [with Beltran]."


                                              19
       Jackson's argument points out an unavoidable truth. If Jackson did not accept the
plea deal, the conflict between Gipson, Jackson, and Beltran would become readily
apparent when Beltran testified at trial. Once Gipson had reached the trial phase of
Jackson's case, the court and Gipson's clients would have learned of his failure to follow
proper procedure regarding conflicts of interests under the KRPC. Moreover, the trial
court would have been put on notice that this conflict would have diminished Gipson's
effectiveness to Jackson, Beltran, or both.


       Furthermore, it is very likely that Gipson would have been forced to withdraw as
counsel for both Jackson and Beltran. How could Gipson continue to zealously advocate
for Jackson if he had to cross-examine Beltran? How could Gipson ethically undermine
Beltran's testimony and attack Beltran's credibility at Jackson's trial when Beltran was
facing probation revocation? What if Gipson learned information from Beltran that would
help him remain on probation but hurt Jackson at trial? What if Gipson learned
information from Jackson that would help him win at trial but hurt Beltran's chances of
remaining on probation? Those questions are indicative of the obstacles Gipson would
encounter in trying to serve two masters. Thus, Jackson's interests and Beltran's interests
were too adverse for one attorney to represent both.


       "[D]efense attorneys have the obligation, upon discovering a conflict of interests,
to advise the court at once of the problem." Holloway v. Arkansas, 435 U.S. 475, 485-86,
98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978). Moreover, when an "'attorney [is] representing
two defendants in a criminal matter[,] [the attorney] is in the best position professionally
and ethically to determine when a conflict of interest exists or will probably develop in
the course of a trial.'" Holloway, 435 U.S. at 485 (quoting State v. Davis, 110 Ariz. 29,
31, 514 P.2d 1025 [1973]). When the trial court is notified of a potential conflict of
interest faced by a criminal defense attorney, the court is required to make an appropriate
in-depth inquiry into the conflict. If an appropriate inquiry is made, the trial court's


                                              20
decision to deny a motion to withdraw is reviewed under the abuse of discretion standard.
See State v. Stovall, 298 Kan. at 370.


       Here, the record lacks any evidence that Gipson ever told the trial court about his
conflict of interest before Jackson entered his plea in this case. If Gipson had made the
trial court aware of the conflict of interest, the trial court would have inquired about this
conflict. Following this inquiry, Jackson would have either made an informed waiver of
this conflict or, more likely, asked Gipson to withdraw as counsel. Because Gipson kept
the conflict hidden from the trial court, he prevented the trial court from inquiring into the
conflict of interest before accepting Jackson's plea.


       The dissent, however, ignores Gipson's failure to inform the trial court of the
conflict of interest. Surely defense attorneys should not be in a stronger position because
they willfully fail to advise the trial court of a conflict of interest, thus precluding the
court from making an appropriate in-depth inquiry into the conflict of interest, than they
would be in if they had advised the court of the conflict of interest so that the court could
make an in-depth inquiry into the conflict of interest. If so, defense attorneys could
simply neglect to advise the court of a conflict of interest, thereby preventing the court
from ever making an appropriate in-depth inquiry into the conflict of interest, as was
done in this case.


       To avoid drawing attention to this obvious conflict of interest, Gipson had an
incentive to make sure Jackson pleaded guilty in this case. Indeed, Beltran was scheduled
to testify against Jackson if this case went to trial. Moreover, if the State called Beltran as
a witness, Gipson would have been required to impeach Beltran's credibility, possibly
using Beltran's former criminal record. This would have created a situation of "divided
loyalties" in Gipson's representation of Jackson and Beltran. Thus, Gipson's continued
representation of both Jackson and Beltran clearly depended on Jackson accepting a plea
deal with the State.

                                               21
        As stated earlier, a defendant has the right to conflict-free assistance of counsel.
Galaviz, 296 Kan. at 176. When a conflict of interest adversely affects an attorney's
representation of a defendant, that defendant is entitled to postconviction relief. Galaviz,
296 Kan. at 183-84. Here, the conflict of interest adversely affected Gipson's
representation of Jackson because Gipson's representation of Jackson hinged on him
serving two masters whose interests were clearly adverse to each other.


        It is the function of defense attorneys to make the adversarial testing process work
in their cases. The "'benchmark for judging any claim of ineffectiveness [as to counsel's
performance] must be whether counsel's conduct so undermined the proper functioning of
the adversarial process that the trial cannot be relied on as having produced a just result.
[Citations omitted.]'" Boldridge, 289 Kan. at 633 (quoting Bledsoe v. State, 283 Kan. 81,
90, 150 P.3d 868 [2007]). A part of the adversarial process is having a conflict-free
attorney.


        In Jackson's case, the adversarial testing process broke down. The State had listed
Beltran as a witness in Jackson's upcoming trial. Thus, if there was the slightest
possibility that the State would have called Beltran as a witness at Jackson's trial,
Gipson's conflict of interest would have adversely hampered him, if not totally prevented
him, from representing Jackson at the trial stage. Although the trial court denied
Jackson's motion to withdraw plea, the trial court stated that Gipson's representation of
both Beltran and Jackson was troubling. Indeed, because of the conflict of interest,
Gipson rendered himself unable to make the adversarial testing process work in Jackson's
case.


        In Lafler v. Cooper, 566 U.S. ___, 132 S. Ct. 1376, 1384, 182 L .Ed. 2d 398
(2012), the United States Supreme Court held that the Sixth Amendment right to counsel
extends to the plea-bargain process. Moreover, the United States Supreme Court in
Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284 (2010),

                                              22
made clear that "the negotiation of a plea bargain is a critical phase of litigation for
purposes of the Sixth Amendment right to effective assistance of counsel."


       Surely, if defendants receive and accept a so called good plea deal without ever
making an informed waiver of the conflict of interest, this cannot trump their
constitutional right to have a conflict-free attorney during their plea negotiations. Jackson
was entitled to a conflict-free attorney to negotiate a plea deal with the State. Here,
Gipson failed to provide Jackson with conflict-free representation during the plea
negotiations with the State. Moreover, the record shows that neither Jackson nor Beltran
made an informed waiver of Gipson's conflict of interest.


       In summary, Gipson represented Jackson when the conflict of interest arose and,
after that, Gipson negotiated a plea agreement that encompassed the very offense giving
rise to the conflict of interest. Because the effect of Gipson's actual conflict of interest
extended to the guilty-plea proceeding, it adversely affected the adequacy of his
representation of Jackson during the plea negotiations with the State. As a result, we hold
that Gipson's representation adversely affected Jackson's interests. Accordingly, we
reverse Jackson's conviction and remand to the trial court with directions to grant
Jackson's motion to withdraw plea.


                                                 ***


       TIMOTHY G. LAHEY, District Judge, assigned, dissenting: I respectfully dissent.
Anytime a lawyer represents a defendant and has a current or prior attorney client
relationship with a witness in the case, a potential conflict exists. In every such case, the
attorney faces the theoretical obstacles set forth in the majority opinion. Yet, Mickens v.
Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291, reh. denied 535 U.S. 1074
(2002), and State v. Galaviz, 296 Kan. 168, 291 P.3d 62 (2012), clearly show that despite
the existence of conflicting loyalties, not every conflict results in an automatic reversal.

                                              23
       While Aaron Gipson was representing Deshawn Jackson, he was appointed to
represent Francisco Beltran in a separate probation violation proceeding in an earlier case
in which Beltran and Jackson were apparent accomplices. Beltran was an endorsed
witness in this case against Jackson, hence the conflict. I agree with the majority that
defense attorney Gipson concurrently represented Beltran and Jackson, that he did not
obtain a written waiver of the conflict, and that he did not advise the court of the conflict.
I disagree with the majority's analysis and conclusion that Jackson is entitled to a new
trial on the basis of the conflict.


       In the hearing before the district court, Jackson testified that Gipson never told
him about his representation of Beltran. The district court heard evidence and rejected
Jackson's claim. The court found that Gipson did disclose and discuss his representation
of Beltran with Jackson. According to Gipson, when told of the conflict, Jackson said it
was okay—Beltran was not really a witness to anything, and it was not an issue. More
than 2 years later, Jackson is asking the court to set aside his plea because of a conflict he
knew about all along.


       The majority's criticism of Gipson's failure to obtain a written waiver and failure
to advise the trial court of the conflict may well be justified under the Rules of
Professional Conduct (KRPC). However, the KRPC are "not designed or intended to
provide substantive or procedural law for criminal proceedings in district court." State v.
Stovall, 298 Kan. 362, 372, 312 P.3d 1271 (2013). Gipson's failure to follow the KRPC
by obtaining a written waiver of the conflict merely confirms the existence of the
conflict. Gipson's failure to advise the court of the conflict does not change the test to be
applied when evaluating the conflict—the attorney in Mickens also failed to advise the
court of the conflict.


       As explained by Justice Luckert, under Mickens, a defendant is not entitled to
automatic reversal based on the defense attorney's conflict of interest if there was no

                                              24
timely objection to the attorney's representation. State v. Galaviz, 296 Kan. at 170. Here,
Jackson knew of the conflict and raised no objection. When a defendant knows of a
conflict and does not object, the defendant bears the burden of showing that the conflict
actually adversely affected the adequacy of the lawyer's representation. The defendant is,
however, not required to show prejudice as required in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984). Prejudice
is presumed if the defendant shows the conflict significantly affected counsel's
performance. Mickens, 535 U.S. at 172-73. Within the Mickens framework as explained
in Galaviz, Jackson must do more than point to the conflict—he must establish that the
conflict of interest had an adverse effect on his attorney's representation of him. This
actual conflict of interest requirement means more than a mere division of loyalties; it
requires a conflict that actually, not theoretically, affected counsel's performance. See
Mickens, 535 U.S. at 171.


       When challenging the performance of counsel, a defendant must do more than
allege the potential for conflict, he must point to specific instances to support his
contention. United States v. Alvarez, 137 F.3d 1249, 1252 (10th Cir. 1998). Jackson must
come forward with evidence which shows the representation was significantly affected.
See Mickens, 535 U.S. at 172-73.


       What did Gipson do that was disadvantageous to his client? We know Jackson
claimed that Gipson coerced the plea by threatening Jackson that he would receive the
maximum sentence if he did not take the plea deal. But the trial court specifically rejected
that contention. Beyond that specific allegation, Jackson's testimony at the motion to
withdraw plea sheds no light on just what Gipson did or did not do that adversely affected
the representation. When asked how Gipson's representation was deficient, Jackson said
Gipson "knew Beltran was a witness on my case for the State, so he should have known
to withdraw from my case or from Beltran's, one of the two."


                                              25
       The successful argument made by Jackson and accepted by the majority is that
Gipson's "mindset" was affected when he was negotiating and explaining the plea deal.
No evidence was presented describing what Gipson said or did when negotiating and
explaining the plea deal that had an adverse effect on the representation. The majority
cites no evidence or specific facts, beyond the existence of "divided loyalties" as the basis
for reversing the trial court. Jackson has the burden of showing specific instances to
support his contentions of an actual conflict of interest adverse to his interests and not
merely a theoretical division of loyalties. See Mickens, 535 U.S. 171-73.


       The majority summarized the "actual adverse affect" on the representation as
follows:


               "To avoid drawing attention to this obvious conflict of interest, Gipson had an
       incentive to make sure Jackson pleaded guilty in this case. Indeed, Beltran was scheduled
       to testify against Jackson if this case went to trial. Moreover, if the State called Beltran as
       a witness, Gipson would have been required to impeach Beltran's credibility, possibly
       using Beltran's former criminal record. This would have created a situation of 'divided
       loyalties' in Gipson's representation of Jackson and Beltran. Thus, Gipson’s continued
       representation of both Jackson and Beltran clearly depended on Jackson accepting a plea
       deal with the State." Slip op. at 22.


       The district court made no finding that Gipson was motivated by a desire to avoid
drawing attention to the conflict. To the contrary, the court found that Gipson actually
drew attention to the conflict—he told Jackson about it, and Jackson had no objection to
the dual representation. Jackson recognized that Beltran was not a witness to anything.
Jackson's own testimony and the circumstances of the crime as disclosed in the record
refute the other concerns expressed by the majority about the significance of Beltran as a
possible witness.




                                                     26
       The evidence in the record shows that the only witnesses to the actual events
underlying the attempted murder, as well as the other crimes, were Jackson, the victim,
and their 1-year-old daughter. Those events occurred at the victim's residence. Beltran
was never at the victim's residence.


       At the preliminary hearing, a police investigator testified that Jackson, after
Miranda, admitted tying up the victim and putting tape over her mouth; forcing her into
the bathtub and making her stay there; then taking the victim to his sister Lani's house;
directing the victim go to a back bedroom; and then taking the victim, her 1-year-old
daughter, and Lani to a gas station where the victim ultimately sought help.


       The majority's reliance on State v. Jenkins, 257 Kan. 1074, 898 P.2d 1121 (1995),
as a factually similar case is misplaced. In Jenkins, the defense lawyer's conflict was his
representation of the victim who was the primary witness against the lawyer's client. The
facts here show that Beltran was present at Lani's house when Jackson brought the victim
to her house, after the attempted murder. The record is devoid of any factual suggestion
or circumstance that would indicate Beltran had any material information about the
crime—he was not a witness to any material element of the crime, and nothing in the
record reflects Jackson told him anything about the crime or that Beltran ever made any
statement to authorities. In no way is Beltran a key witness as was the case in Jenkins.


       The record before us does not even show that Jackson's and Beltran's interests
were actually adverse. We know that Jackson did not think they were adverse because he
told Gipson that he did not object to the representation of Beltran because Beltran "really
was not a witness to anything, not an issue." The evidence in the record bears out
Jackson's statement.


       The testimony at the preliminary hearing, combined with the admissions by the
defendant, demonstrate that Gipson obtained a highly favorable plea agreement for

                                             27
Jackson. The evidence shows the defendant voluntarily and knowingly entered his plea
with full knowledge of the consequences. He testified he decided to take the plea because
he was worried about the possible sentence he could receive based on the multiple
original charges. The plea to a single amended charge significantly reduced defendant's
potential sentence. Jackson knew Gipson was representing Beltran, he knew that Beltran
was listed as a witness for the State, and he did not object. The district court's finding that
there was no manifest injustice is supported by substantial competent evidence.


       The effect of the majority opinion is to grant an automatic reversal in favor of
Jackson solely because he did not have conflict-free counsel. Every conflict case creates a
situation of "divided loyalties," but not every case results in an automatic reversal. Under
Mickens and Galaviz, when a defendant knows of a conflict and fails to object, the
defendant must show the conflict had a significant actual effect on the adequacy of
counsel's representation. I would find Jackson has failed to make the required showing
and affirm the district court's denial of Jackson's motion.




                                              28
