1

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.
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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. 
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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. 
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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 
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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 
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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.
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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 seconddegree 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 
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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.
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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). 
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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 
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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 
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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 
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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. 
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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 
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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 conflictfree 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 
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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. 
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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 
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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 
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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]."
20

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 
21

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.
22

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), 
23

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.
24

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 
25

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."
26

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. 
27

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 
28

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.