               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 40092

MARJORY ANN BARNES,                               )       2013 Unpublished Opinion No. 668
                                                  )
       Petitioner-Appellant,                      )       Filed: September 19, 2013
                                                  )
v.                                                )       Stephen W. Kenyon, Clerk
                                                  )
STATE OF IDAHO,                                   )       THIS IS AN UNPUBLISHED
                                                  )       OPINION AND SHALL NOT
       Respondent.                                )       BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Fred M. Gibler, District Judge.

       Judgment denying post-conviction relief, affirmed.

       Greg S. Silvey, Star, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Marjory Ann Barnes appeals from the judgment dismissing her post-conviction action.
In her amended petition Barnes raised several claims, but on appeal her claim of error is narrow.
She argues only that the trial court erred by summarily denying her ineffective assistance claim
based upon an actual conflict of interest. 1 We affirm.




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         In several places, Barnes appears to assert that the claim on appeal was summarily
dismissed and in other places asserts that her claim was dismissed after an evidentiary hearing.
While some of Barnes’s claims were dismissed or withdrawn before the evidentiary hearing, the
claim on appeal was decided after an evidentiary hearing. Accordingly, we review the decision
of the trial court as a denial made after an evidentiary hearing and not as a summary dismissal.

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                                                 I.
                                         BACKGROUND
          This Court previously addressed Barnes’s claims on direct appeal. State v. Barnes,
Docket No. 37995 (Ct. App. May 4, 2012) (substitute unpublished opinion). In that opinion, we
set forth the following factual background concerning the original trial:
                 Following a report of concerns that Barnes and her boyfriend, Gregory
          Klundt, were manufacturing methamphetamine in their shared residence, law
          enforcement obtained a warrant to search their house. The search revealed a
          number of items associated with the manufacture of methamphetamine. The state
          charged Barnes with conspiracy to traffic in methamphetamine by manufacture,
          I.C. §§ 37-2732B(a)(3) and 18-204; trafficking in methamphetamine by
          manufacture, I.C. §§ 37-2732B(a)(3) and 18-204; and possession of a controlled
          substance, pseudoephedrine, with intent to manufacture methamphetamine, I.C.
          § 37-2732(a)(1)(A). After trial, a jury found Barnes guilty. Barnes was sentenced
          to concurrent determinate terms of five years for each count.

Id. In addition to her direct appeal, Barnes filed a post-conviction action.
          In her amended post-conviction petition, Barnes claimed that she was due relief because
her sentence was unlawful, new facts warranted the vacation of her conviction, the prosecutor
had committed misconduct, and her attorneys provided ineffective assistance of counsel by, inter
alia, representing Barnes while having an actual conflict of interest. During a hearing on the
State’s motion for summary dismissal, Barnes, through counsel, withdrew several claims
including the prosecutorial misconduct claim and some of the ineffective assistance of counsel
claims.     Thereafter, the district court held an evidentiary hearing on the remaining claims
including the claim at bar.
          At the evidentiary hearing, Barnes adduced evidence that she and her co-defendant had
obtained a single attorney, John Redal, to represent them both.             While Redal could not
specifically recall whether he had done so in this case, he believed he informed his clients of the
benefits and risks of dual representation and how he would respond if an actual conflict emerged.
Redal represented both Barnes and her co-defendant through most of the pretrial process,
including a motion to suppress evidence. However, after the denial of the suppression motion,
and realizing that the case likely would go to trial, Redal believed that the dual representation
might become problematic because an actual conflict could emerge. He was concerned that one
or both of the co-defendants would wish to “point the finger at the other party.” Accordingly, he
withdrew from the representation of Barnes and represented only her co-defendant at trial. In

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Redal’s view, the parties did not have any divergence of interests before the point at which he
withdrew.
       Barnes called a criminal defense attorney as an expert witness at her evidentiary hearing.
It was that attorney’s opinion that representing co-defendants was an undesirable practice and
that it was most likely barred by the Idaho Rules of Professional Conduct. She also discussed,
generally, what potential conflicts of interest might arise.
       In addition to calling these witnesses, Barnes testified on her own behalf. The majority
of her testimony was unrelated to the single issue on appeal. As to the claim on appeal, her only
relevant testimony was that she never discussed with Redal the possibility of testifying against
her co-defendant.
       After the hearing, the district court issued its “Opinion and Order Re: Post Conviction
Relief.” In that opinion, the trial court held that Barnes was not entitled to relief on any of her
claims. In particular, as to the conflict of interest claim, the trial court held that Barnes was not
entitled to any presumption of prejudice because she had failed to come forward with any facts
demonstrating that Redal had an actual, rather than potential, conflict of interest at any time
before he withdrew from representing her.
                                                 II.
                                            ANALYSIS
       Barnes argues that the trial court erred when it dismissed her claim that Redal provided
ineffective assistance of counsel because his representation was tainted by an actual conflict of
interest. Barnes argues that she was less culpable than her co-defendant. She describes her co-
defendant as the “prime mover in the offense,” states that she had a less significant criminal
history than her co-defendant, and states that she intended to manufacture methamphetamine
only for personal use and not for sale. For all of these reasons, Barnes argues that her attorney
should have attempted to reach a plea bargain wherein she would plead guilty to a lesser charge
and avoid the mandatory minimum sentence for trafficking in exchange for testifying against her
co-defendant or acknowledging her guilt on the record, which might allow the State to enter that
acknowledgement into evidence against her co-defendant.
       In order to prevail in a post-conviction proceeding, the petitioner must prove the
allegations by a preponderance of the evidence. Idaho Code § 19-4907; Stuart v. State, 118
Idaho 865, 869, 801 P.2d 1216, 1220 (1990).            When reviewing a decision denying post-


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conviction relief after an evidentiary hearing, an appellate court will not disturb the lower court’s
factual findings unless they are clearly erroneous. I.R.C.P. 52(a); Russell v. State, 118 Idaho 65,
67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of the witnesses, the weight to be given
to their testimony, and the inferences to be drawn from the evidence are all matters solely within
the province of the district court. Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App.
1988). We exercise free review of the district court’s application of the relevant law to the facts.
Nellsch v. State, 122 Idaho 426, 434, 835 P.2d 661, 669 (Ct. App. 1992).
       A claim of ineffective assistance of counsel may properly be brought under the Uniform
Post-Conviction Procedure Act. Murray v. State, 121 Idaho 918, 924-25, 828 P.2d 1323, 1329-
30 (Ct. App. 1992). Ordinarily, to prevail on an ineffective assistance of counsel claim, the
defendant must show that the attorney’s performance was deficient and that the defendant was
prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hassett v.
State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct. App. 1995). To establish a deficiency, the
petitioner has the burden of showing that the attorney’s representation fell below an objective
standard of reasonableness. Strickland, 466 U.S. at 688; Aragon v. State, 114 Idaho 758, 760,
760 P.2d 1174, 1176 (1988). To establish prejudice, the petitioner must show a reasonable
probability that, but for the attorney’s deficient performance, the outcome of the trial would have
been different. Strickland, 466 U.S. at 694; Aragon, 114 Idaho at 761, 760 P.2d at 1177.
       Although Strickland generally governs ineffective assistance of counsel claims, “conflicts
of interest arising from joint representation have been excepted from the general requirement that
actual prejudice be shown.” State v. Guzman, 126 Idaho 368, 371, 883 P.2d 726, 729 (Ct. App.
1994); see also Mickens v. Taylor, 535 U.S. 162, 166 (2002); State v. Koch, 116 Idaho 571, 574,
777 P.2d 1244, 1247 (Ct. App. 1989). This rule flows from the constitutional right to conflict-
free counsel. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980) (representation by an attorney with an
actual conflict violates the Sixth Amendment to the United States Constitution); Carter v. State,
108 Idaho 788, 792 n.2, 702 P.2d 826, 830 n.2 (1985) (Article I, § 13 of the Idaho Constitution
also requires that a criminal defendant be afforded the assistance of counsel).             But the
presumption of prejudice is a narrow exception to Strickland, and the mere potential of a conflict
is insufficient. Guzman, 126 Idaho at 371, 883 P.2d at 729. For this reason, joint representation
alone is an insufficient showing because it is not per se ineffective assistance of counsel nor is it
a per se actual conflict. Holloway v. Arkansas, 435 U.S. 475, 482 (1978); Koch, 116 Idaho at


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574, 777 P.2d at 1247; McNeeley v. State, 111 Idaho 200, 202, 722 P.2d 1067, 1069 (Ct. App.
1986). Rather, “[t]he conflict itself must be shown” and the defendant must demonstrate “that
counsel ‘actively represented conflicting interests’ and ‘that an actual conflict of interest
adversely affected his lawyer’s performance.’” Guzman, 126 Idaho at 371, 883 P.2d at 729
(quoting Koch, 116 Idaho at 574, 777 P.2d at 1247).
       Barnes did not meet that burden of proof here because she did not prove that any
potential conflict affected Redal’s representation. Barnes argues that her attorney should have
advised her to seek a plea bargain. There are cases holding that the failure to seek a plea bargain
can be evidence of an actual conflict that affects performance. See, e.g., United States ex rel.
Gray v. Dir., Dep’t of Corr., State of Ill., 721 F.2d 586, 596-97 (7th Cir. 1983), but the mere
failure to seek a plea deal alone is insufficient unless one shows that the failure to seek a plea
deal resulted from the actual conflict.         For example, in Gray, the defendant was a
developmentally-delayed minor whose alleged involvement in the crime was minimal, who
provided substantial aid to law enforcement in the investigation of the crimes, and who had a
number of possibly meritorious defenses including coercion by her co-defendants. Id. at 596.
An attorney for several co-defendants contacted the defendant after she testified to the grand jury
but before a preliminary hearing. Id. at 591-92. Thereafter, she changed her testimony to be far
more favorable to her co-defendants and less favorable to the State. Id. at 592. She was
eventually found guilty of aiding and abetting the underlying crimes and perjury. Id. at 587. In
that case, the court observed that these facts, when taken together, showed that the defendant’s
interest was to continue cooperation with the State as a means of avoiding prosecution, gaining
an immunity agreement, or obtaining a plea bargain; or, failing those options, her interest was to
present a strong defense that would be antagonistic to those of her co-defendants. Id. at 596-97.
On the basis of this divergence, the court found that the defendant’s attorney had an actual
conflict that adversely affected his representation of her.
       The case at bar is significantly distinguishable from Gray where the defendant had
potentially valid defenses and had already offered law enforcement and the State substantial aid
in investigating the case, all of which may have enabled her to obtain immunity or a favorable
plea agreement. Barnes has not shown that she had information to offer to the State that would
have induced the State to agree to a favorable plea deal. Barnes identifies three grounds upon
which a plea bargain would have been in her interest: her allegedly limited involvement in the


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offense, her less serious criminal history, and her intent to use rather than sell the manufactured
methamphetamine. While each of these grounds might be mitigating circumstances to argue at
sentencing, none is a defense to the charges or a compelling reason to believe the State would
have agreed to plea bargain with a reduction of the charges against Barnes. The State’s evidence
presented at trial shows that the State had a strong case against Barnes. There was substantial
scientific evidence that methamphetamine was produced in the home and there was strong
evidence linking both Barnes and her co-defendant to that production of methamphetamine.
Given the strength of the evidence, Barnes has shown no reason to believe that the State would
have been inclined to substitute reduced charges and thus that her first attorney could have
obtained such a deal from the State. Moreover, even after Barnes obtained separate counsel, no
such plea agreement was negotiated, and Barnes presented no evidence suggesting that Redal
could have obtained such an agreement when Barnes’s separate, independent counsel did not or
could not. It appears that attorney Redal pursued the most promising defense--a suppression
motion--before withdrawing from her case. Thus, Barnes’s evidence fails to demonstrate that the
alleged conflict adversely affected Redal’s performance.
       For all of these reasons, this case is distinguishable from Gray and is comparable to the
circumstance in State v. Lovelace, 140 Idaho 53, 90 P.3d 278 (2003) on reh’g, 140 Idaho 73, 90
P.3d 298 (2004) (this portion of the holding was not relevant to the issues decided on rehearing).
In Lovelace, the defendant complained that his attorney should have sought a plea bargain but
did not do so because he was running for office. Id. at 61, 90 P.3d at 286. The Supreme Court
held that the claim was not supported and was impermissibly speculative. Id. The same is true
in this case. Barnes’s assertion that her attorney’s alleged conflict of interest adversely affected
his performance because he did not secure a favorable plea agreement is pure speculation. The
district court correctly determined that there was insufficient evidence that an actual conflict
adversely affected the attorney’s performance.
       The judgment of the district court denying Barnes’s action for post-conviction relief is
affirmed.
       Chief Judge GUTIERREZ and Judge GRATTON CONCUR.




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