COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Frank and Senior Judge Bray Argued at Chesapeake, Virginia
WILLIE DERWOOD DILLARD MEMORANDUM OPINION * BY v. Record No. 0679-02-1 JUDGE RICHARD S. BRAY APRIL 8, 2003 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Jerome James, Judge
Brett D. Lucas (Gabriel & Associates, P.C., on briefs), for appellant.
Stephen R. McCullough, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Willie Derwood Dillard, defendant, was convicted by the trial
court upon his plea of guilty to indictments charging that he "did
feloniously and maliciously shoot at an . . . occupied dwelling,"
the related use of a firearm and aggravated malicious wounding.
Defendant contends the court unconstitutionally denied
post-conviction motions to permit both withdrawal of his counsel
and the guilty pleas. Finding no error, we affirm the trial
court.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Background
On October 9, 2001, defendant appeared before the trial
court, accompanied by retained counsel, and entered Alford pleas
of guilty to the several indictments. See North Carolina v.
Alford, 400 U.S. 25 (1970). The court engaged defendant in the
customary colloquy, and the Commonwealth then proceeded, without
objection, to summarize the evidence. The court thereafter
conducted a further colloquy with defendant, during which he
acknowledged the summary "would have been the Commonwealth's
evidence" and confirmed a written plea agreement with the
Commonwealth, executed by him with the advice and counsel of his
attorney. Determining the "Alford guilty pleas . . . freely,
voluntarily and intelligently entered," the court proceeded to
find defendant guilty of the offenses and scheduled sentencing for
December 14, 2001.
Post-conviction, on November 6, 2001, the defense attorney
moved the court for "leave to withdraw as counsel," citing an
unspecified "conflict of interest," and, additionally, to "allow
the withdrawal of [defendant's] guilty plea [sic]." During a
hearing on the motion to withdraw as counsel, conducted on
November 26, 2001, counsel represented to the court that, after
numerous meetings with defendant, "we . . . negotiated" the plea
agreement. However, when defendant subsequently decided to
withdraw the attendant Alford pleas, counsel found himself
- 2 - "conflicted" and convinced "another attorney could represent
[defendant] better" on the pending motion to withdraw the pleas.
Counsel further proffered to the court that defendant, "feel[ing]
misled" by his advice relative to an unspecified suppression
motion and "misinformed" with respect to his right to a jury
trial, had accused him of acting "unethically." Confronted with a
"radically different" view of the case, counsel declared, "I can't
help [defendant] any further." 1
Upon consideration of the motion and arguments, including
related objections of the Commonwealth, the court concluded that
counsel "was in the best position to argue the [pending] motion"
to withdraw the guilty pleas and denied the motion to withdraw,
"at this point in time."
On December 10, 2001, the court conducted a hearing on the
remaining motion to withdraw the Alford pleas. Defendant then
testified, asserting he was "pressured" into entering the pleas
by the advice of "the deputies" and counsel that the plea
agreement was in his best interest. However, defendant also
acknowledged his earlier assurances to the court during the
colloquies that he had not been pressured or coerced into the
1 Neither counsel nor defendant offered to present evidence at the hearing, relying, instead, upon the representations of counsel.
- 3 - pleas, was satisfied with the services of counsel and had
truthfully answered the court's inquiries.
Analysis
Defendant contends his Sixth Amendment right to a counsel
of choice was violated when the trial court denied the
attorney's motion to withdraw. Defendant reasons that, because
counsel had advised him to enter the Alford pleas, it was now
"impossible" for the attorney to effectively pursue withdrawal
of the pleas without "prejudicing" himself, a patent "conflict
of interests."
A motion for withdrawal of counsel is addressed to the
sound discretion of the trial court. Payne v. Commonwealth, 233
Va. 460, 473, 357 S.E.2d 500, 508 (1987). However, the Sixth
Amendment to the United States Constitution guarantees an
accused the effective assistance of counsel, which includes the
right to representation free from conflicts of interest. See
Cuyler v. Sullivan, 446 U.S. 335, 345-50 (1980).
An actual conflict of interest exists where counsel has responsibilities to other clients or personal concerns that are actively in opposition to the best interests of the defendant. An actual conflict may arise, for example, in the circumstance of counsel's representation of more than one defendant in connection with the same criminal charge, or where a defendant's counsel has a professional relationship with the prosecution.
- 4 - Moore v. Hinkle, 259 Va. 479, 489, 527 S.E.2d 419, 424 (2000)
(citations omitted). Generally, personality differences between
attorney and client do not constitute a conflict of interest
cognizable in law. Hale v. Gibson, 227 F.3d 1298, 1313 (10th
Cir. 2000). Similarly, disagreement with respect to motions or
trial strategy "does not give rise to a conflict of interest
between the defendant and his attorney." United States v.
White, 174 F.3d 290, 296 (2d Cir. 1999). Significantly, "[t]he
possibility of a conflict of interest does not necessarily
impinge on a defendant's constitutional rights. Rather, the
defendant must show that an actual conflict of interest existed
and the conflict prejudiced counsel's performance." United
States v. Smith, 113 F. Supp. 2d 879, 913-14 (E.D. Va. 1999)
(citing Cuyler, 446 U.S. at 346).
Here, defendant has failed to demonstrate an actual
conflict of interest between his counsel and himself. Clearly,
the record discloses no responsibilities of counsel to other
clients or personal concerns that compromised defendant's best
interests. Moreover, the evidence does not evince a divergence
of interests between defendant and his attorney with respect to
a factual or legal issue or the performance of counsel that
threatened defendant's cause.
To the contrary, the record reflects that, before tendering
the Alford pleas of guilty at trial, defendant conferred with
- 5 - his counsel on several occasions to discuss the pending charges,
attendant trial and related issues. Defendant assured the court
that he was satisfied with the services of his attorney, was
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COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Frank and Senior Judge Bray Argued at Chesapeake, Virginia
WILLIE DERWOOD DILLARD MEMORANDUM OPINION * BY v. Record No. 0679-02-1 JUDGE RICHARD S. BRAY APRIL 8, 2003 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Jerome James, Judge
Brett D. Lucas (Gabriel & Associates, P.C., on briefs), for appellant.
Stephen R. McCullough, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Willie Derwood Dillard, defendant, was convicted by the trial
court upon his plea of guilty to indictments charging that he "did
feloniously and maliciously shoot at an . . . occupied dwelling,"
the related use of a firearm and aggravated malicious wounding.
Defendant contends the court unconstitutionally denied
post-conviction motions to permit both withdrawal of his counsel
and the guilty pleas. Finding no error, we affirm the trial
court.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Background
On October 9, 2001, defendant appeared before the trial
court, accompanied by retained counsel, and entered Alford pleas
of guilty to the several indictments. See North Carolina v.
Alford, 400 U.S. 25 (1970). The court engaged defendant in the
customary colloquy, and the Commonwealth then proceeded, without
objection, to summarize the evidence. The court thereafter
conducted a further colloquy with defendant, during which he
acknowledged the summary "would have been the Commonwealth's
evidence" and confirmed a written plea agreement with the
Commonwealth, executed by him with the advice and counsel of his
attorney. Determining the "Alford guilty pleas . . . freely,
voluntarily and intelligently entered," the court proceeded to
find defendant guilty of the offenses and scheduled sentencing for
December 14, 2001.
Post-conviction, on November 6, 2001, the defense attorney
moved the court for "leave to withdraw as counsel," citing an
unspecified "conflict of interest," and, additionally, to "allow
the withdrawal of [defendant's] guilty plea [sic]." During a
hearing on the motion to withdraw as counsel, conducted on
November 26, 2001, counsel represented to the court that, after
numerous meetings with defendant, "we . . . negotiated" the plea
agreement. However, when defendant subsequently decided to
withdraw the attendant Alford pleas, counsel found himself
- 2 - "conflicted" and convinced "another attorney could represent
[defendant] better" on the pending motion to withdraw the pleas.
Counsel further proffered to the court that defendant, "feel[ing]
misled" by his advice relative to an unspecified suppression
motion and "misinformed" with respect to his right to a jury
trial, had accused him of acting "unethically." Confronted with a
"radically different" view of the case, counsel declared, "I can't
help [defendant] any further." 1
Upon consideration of the motion and arguments, including
related objections of the Commonwealth, the court concluded that
counsel "was in the best position to argue the [pending] motion"
to withdraw the guilty pleas and denied the motion to withdraw,
"at this point in time."
On December 10, 2001, the court conducted a hearing on the
remaining motion to withdraw the Alford pleas. Defendant then
testified, asserting he was "pressured" into entering the pleas
by the advice of "the deputies" and counsel that the plea
agreement was in his best interest. However, defendant also
acknowledged his earlier assurances to the court during the
colloquies that he had not been pressured or coerced into the
1 Neither counsel nor defendant offered to present evidence at the hearing, relying, instead, upon the representations of counsel.
- 3 - pleas, was satisfied with the services of counsel and had
truthfully answered the court's inquiries.
Analysis
Defendant contends his Sixth Amendment right to a counsel
of choice was violated when the trial court denied the
attorney's motion to withdraw. Defendant reasons that, because
counsel had advised him to enter the Alford pleas, it was now
"impossible" for the attorney to effectively pursue withdrawal
of the pleas without "prejudicing" himself, a patent "conflict
of interests."
A motion for withdrawal of counsel is addressed to the
sound discretion of the trial court. Payne v. Commonwealth, 233
Va. 460, 473, 357 S.E.2d 500, 508 (1987). However, the Sixth
Amendment to the United States Constitution guarantees an
accused the effective assistance of counsel, which includes the
right to representation free from conflicts of interest. See
Cuyler v. Sullivan, 446 U.S. 335, 345-50 (1980).
An actual conflict of interest exists where counsel has responsibilities to other clients or personal concerns that are actively in opposition to the best interests of the defendant. An actual conflict may arise, for example, in the circumstance of counsel's representation of more than one defendant in connection with the same criminal charge, or where a defendant's counsel has a professional relationship with the prosecution.
- 4 - Moore v. Hinkle, 259 Va. 479, 489, 527 S.E.2d 419, 424 (2000)
(citations omitted). Generally, personality differences between
attorney and client do not constitute a conflict of interest
cognizable in law. Hale v. Gibson, 227 F.3d 1298, 1313 (10th
Cir. 2000). Similarly, disagreement with respect to motions or
trial strategy "does not give rise to a conflict of interest
between the defendant and his attorney." United States v.
White, 174 F.3d 290, 296 (2d Cir. 1999). Significantly, "[t]he
possibility of a conflict of interest does not necessarily
impinge on a defendant's constitutional rights. Rather, the
defendant must show that an actual conflict of interest existed
and the conflict prejudiced counsel's performance." United
States v. Smith, 113 F. Supp. 2d 879, 913-14 (E.D. Va. 1999)
(citing Cuyler, 446 U.S. at 346).
Here, defendant has failed to demonstrate an actual
conflict of interest between his counsel and himself. Clearly,
the record discloses no responsibilities of counsel to other
clients or personal concerns that compromised defendant's best
interests. Moreover, the evidence does not evince a divergence
of interests between defendant and his attorney with respect to
a factual or legal issue or the performance of counsel that
threatened defendant's cause.
To the contrary, the record reflects that, before tendering
the Alford pleas of guilty at trial, defendant conferred with
- 5 - his counsel on several occasions to discuss the pending charges,
attendant trial and related issues. Defendant assured the court
that he was satisfied with the services of his attorney, was
convinced the Commonwealth could prove the evidence as
summarized, and concurred in the plea agreement. He affirmed
his decision to enter the Alford pleas freely and voluntarily,
recited the maximum punishments for each offense and declared
his understanding that the court was not bound by the terms of
the agreement in fixing punishment. As a result, the court
accepted the pleas, expressly finding defendant acted "freely,
voluntarily and intelligently." Such circumstances manifested
no conflict of interest by counsel in support of the motion to
withdraw.
Similarly, defendant's testimony at the later hearing on
the companion motion to withdraw the pleas, characterizing as
coercive the advice of counsel that the plea agreement served
defendant's best interests, evinces no conflict. The "blunt
rendering of an honest but negative assessment of [defendant's]
chances at trial, combined with advice to enter the plea, [does
not] constitute improper behavior or coercion that would suffice
to invalidate a plea." United States v. Juncal, 245 F.3d 166,
172 (2d Cir. 2001).
Defendant's final assertion that the trial court failed to
properly inquire into the particulars of the motion to relieve
- 6 - his counsel is also without merit. The trial court, in denying
the motion "at [the] point in time" of the related hearing,
implicitly reserved the issue for further consideration at the
forthcoming hearing on defendant's motion to withdraw the pleas.
The record from the later hearing, including testimony of
defendant relevant to both motions, fully developed the
pertinent evidence and does not suggest that denial of the
motion to relieve counsel had "clearly impacted" defendant's
ability to effectively argue the motion to withdraw the pleas.
We, therefore, find neither an abuse of discretion by the
trial court nor infringement upon defendant's constitutional
guarantees resulted from a denial of the motion for withdrawal
of counsel and affirm the convictions.
Affirmed.
- 7 -