THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

Michael Gonzales, Petitioner, 

v. 

State of South Carolina, Respondent. 

Appellate Case No. 2015-001553 

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS 

Appeal from Spartanburg County 

Roger L. Couch, Post-Conviction Relief Judge
	

Opinion No. 27695 

Heard September 21, 2016 – Filed January 5, 2017 

REVERSED 

Appellate Defender Susan Barber Hackett of Columbia, 

for Petitioner. 

Attorney General Alan McCrory Wilson and Assistant 

Attorney General Alicia A. Olive, both of Columbia, for 

Respondent. 

ACTING JUSTICE PLEICONES: Petitioner was convicted of trafficking in 

400 grams or more of methamphetamine. He was sentenced to thirty years' 
 

 

imprisonment, and his conviction and sentence were affirmed on direct appeal. 

State v. Gonzales, 360 S.C. 263, 600 S.E.2d 122 (Ct. App. 2004).1 Petitioner then 

filed this post-conviction relief ("PCR") action, arguing his trial counsel had a 

conflict of interest which adversely affected trial counsel's performance. The PCR 

judge denied relief, and in a split decision, the Court of Appeals affirmed the PCR 

judge's order. Gonzales v. State, 412 S.C. 478, 772 S.E.2d 557 (Ct. App. 2015). 

Because we find the Court of Appeals erred in affirming the PCR judge's order 

denying petitioner relief, we reverse the denial of petitioner's application for PCR. 

FACTS 

Petitioner, who was a juvenile, lived with his mother and her longtime boyfriend, 

Dino Perez. In 2001, at the request of petitioner's mother, trial counsel 

successfully represented Perez in a drug related forfeiture action. Less than a year 

later, in January 2002, petitioner was arrested for trafficking in marijuana over one 

thousand pounds. At the request of petitioner's mother, trial counsel agreed to 

represent petitioner on the trafficking charge. Three months later, in April 2002, 

Perez was also arrested for trafficking in marijuana in excess of one thousand 

pounds. At the request of petitioner's mother, trial counsel agreed to also represent 

Perez on his trafficking charge. 

In June 2002, petitioner was arrested on the charge of trafficking in 

methamphetamine—the conviction which petitioner challenged at the PCR 

proceeding leading to the case now before this Court. Trial counsel agreed to 

represent petitioner on the trafficking in methamphetamine charge. Thus, as of 

June 2002, trial counsel was simultaneously representing petitioner on his 

trafficking in marijuana and trafficking in methamphetamine charges, as well as 

representing Perez on his trafficking in marijuana charge. 

One month later, in July 2002, while petitioner's and Perez's respective trafficking 

in marijuana charges were still pending, petitioner was tried and convicted on his 

trafficking in methamphetamine charge. Petitioner received a thirty year sentence, 

and hired a different attorney to represent him on his direct appeal ("appellate 

counsel"). 

1

 Later overruled in part by State v. Gentry, 363 S.C 93, 610 S.E.2d 494 (2005). 
 

 

It is uncontroverted that prior to petitioner's July 2002 trial for trafficking in 

methamphetamine, trial counsel knew: (1) petitioner was a juvenile; (2) petitioner's 

mother had approached him twice to represent petitioner, and twice to represent 

Perez; (3) petitioner and Perez had each been arrested on separate charges— 

trafficking in marijuana in excess of one thousand pounds—in the same 

geographical area within a three month period; (3) petitioner's mother had paid the 

$50,000 attorney's fees for representation of both petitioner's and Perez's 

trafficking in marijuana charges; (4) when petitioner's mother was "trying to find 

money" to pay the additional $25,000 attorney's fee for petitioner's trafficking in 

methamphetamine charge, trial counsel discussed with petitioner's mother using 

the money he had assisted Perez in recovering in his 2001 forfeiture action; (5) a 

check written from Perez's account for $3,220 was used to pay part of the 

attorney's fee in petitioner's trafficking in methamphetamine case; and (6) the 

remainder was paid by J&M Contractors.2 

Despite all such indicators, trial counsel testified he never recognized the potential 

for a conflict of interest. Therefore, prior to petitioner's July 2002 

methamphetamine trial, trial counsel never discussed with petitioner or Perez the 

potential for a conflict of interest or sought a waiver by either client. Trial counsel 

also never discussed with petitioner that his attorney's fees were being paid for by a 

third-party, and particularly a third-party who may have an adverse interest in 

petitioner's case. 

In 2003, under the advisement of appellate counsel, petitioner agreed to provide 

federal authorities with substantial information as to Perez's wide-scale trafficking 

operation in exchange for complete protection from federal prosecution. 

Subsequently—after petitioner's methamphetamine trial, but while petitioner's and 

Perez's marijuana charges were still pending—trial counsel was contacted by the 

United States Attorney's Office regarding his representation of both petitioner and 

Perez. Specifically, Perez's trafficking charge had become the subject of federal 

jurisdiction, and trial counsel was contacted by several Assistant United States 

Attorneys who warned there were allegations of a conspiracy between Perez and 

petitioner in regards to the pending trafficking charges, and that petitioner was a 

potential witness in the federal government's case against Perez. The United States 

2

 At the PCR hearing, trial counsel testified he could not remember if J&M 

Contractors was affiliated with Perez, petitioner, or petitioner's mother; however, 

petitioner testified J&M Contractors was affiliated with Perez. 
 

Attorney's Office informed trial counsel that based on the alleged conspiracy, his 

common representation of Perez and petitioner created a conflict of interest. 

Trial counsel withdrew from representation of Perez a short time thereafter. Trial 

counsel then met with petitioner and explained that if petitioner were cooperating 

with the federal government on the Perez marijuana investigation, it created a 

conflict of interest for trial counsel, and petitioner needed to sign a waiver in order 

for trial counsel to continue representing him. Petitioner denied any dealings with 

Perez, or meeting with federal agents, but stated he needed to think about signing a 

waiver.3

 Trial counsel never heard from petitioner again. From Spring 2003 until 

his formal withdrawal in 2004, the only information trial counsel received as to 

petitioner was from appellate counsel, who was representing petitioner on a federal 

material witness warrant in the case against Perez. 

In July 2004, trial counsel filed a motion to be relieved as counsel in petitioner's 

trafficking in marijuana case based on "certain actions undertaken by [petitioner] in 

his own behalf," causing trial counsel a conflict of interest by "engaging in 

negotiations . . . interviews, et cetera" with the federal government without 

consulting with or informing trial counsel. By the time trial counsel confronted 

petitioner about alleged cooperation with the federal government, petitioner had 

already provided significant information to federal authorities regarding Perez's 

business of trafficking in illicit drugs. Perez pleaded guilty to the federal 

trafficking in marijuana charge. 

Appellate counsel was appointed to represent petitioner on the state marijuana 

charge. She negotiated on petitioner's behalf a five-year concurrent sentence on 

the reduced charge of trafficking in marijuana 10–100 pounds. Petitioner was 

sentenced to five years' imprisonment to run concurrently with the sentence for 

3

 At the PCR hearing, petitioner admitted to "lying" when he told trial counsel after 

his conviction on the methamphetamine charge that he did not have any connection 

with Perez; petitioner claims he was not forthcoming because prior to his 

trafficking in methamphetamine trial, he attempted to inform trial counsel of his 

connection to Perez, and trial counsel refused to listen. Petitioner further admitted 

that he was untruthful when he told trial counsel he was not cooperating with the 

federal government in the case against Perez. Petitioner claims he withheld his 

cooperation from trial counsel because, in part, he knew trial counsel still 

represented Perez, and petitioner was scared of Perez both for his sake and his 

mother's sake. 
 

trafficking in methamphetamine. Petitioner then brought this PCR action claiming 

trial counsel had a conflict of interest in representing both petitioner and Perez. 

At the PCR hearing, trial counsel was asked whether, once made aware of the 

conflict of interest, he attempted to file any type of motion on behalf of petitioner 

to inform the circuit court there may have been a conflict of interest at the time of 

petitioner's methamphetamine trial. Trial counsel responded that his remedy was 

to move to be relieved as counsel on petitioner's marijuana charge. Trial counsel 

further explained he did not seek a new trial on the methamphetamine conviction 

because he did not believe he had a conflict of interest until petitioner became a 

material witness against Perez, which occurred only after petitioner's 

methamphetamine trial. 

The PCR judge found trial counsel's testimony—that he was unaware of any 

conflict of interest prior to petitioner's methamphetamine trial—was credible and 

"supports Counsel's claims that he was not operating under a conflict of interest." 

Accordingly, the PCR judge found petitioner failed to meet his burden of proving 

there was a conflict of interest. The Court of Appeals disagreed with the PCR 

judge's finding that there was not an actual conflict of interest; however, the Court 

of Appeals' majority affirmed the PCR judge's denial of relief, concluding 

petitioner failed to prove trial counsel recognized the conflict, and, therefore, 

petitioner could not prove he was adversely affected by trial counsel's 

performance. Gonzales v. State, 412 S.C. 478, 772 S.E.2d 557 (Ct. App. 2015). 

We granted petitioner's petition for a writ of certiorari to review the decision of the 

Court of Appeals. 

ISSUE 

Did the Court of Appeals err in holding that in order to 

prevail on his claim of ineffective assistance of counsel, 

petitioner was required to prove trial counsel recognized 

an actual conflict of interest? 

ANALYSIS 

Petitioner contends the Court of Appeals erred in holding that in order to succeed 

on his claim of ineffective assistance of counsel, he had to prove trial counsel 

recognized the existence of an actual conflict of interest. We agree. 
A criminal defendant's Sixth Amendment right to effective assistance of counsel 

includes a right to counsel "unhindered by a conflict of interest." Cuyler v. 

Sullivan, 446 U.S. 335, 345–50, 355 (1980) (quoting Holloway v. Arkansas, 435 

U.S. 475, 483 n. 5 (1978)). When counsel is burdened by an actual conflict of 

interest, he "breaches the duty of loyalty, perhaps the most basic of counsel's 

duties." Strickland v. Washington, 466 U.S. 668, 692 (1984). Due to the 

seriousness of the breach and the difficulty in "measure[ing] the precise effect on 

the defense of representation corrupted by conflicting interests," the Strickland 

ineffective assistance of counsel standard is modified in actual conflict of interest 

cases in that the defendant is not required to show prejudice. Strickland, 466 U.S. 

at 692; see also Duncan v. State, 281 S.C. 435, 438, 315 S.E.2d 809, 811 (1984) 

(quoting Cuyler, 446 U.S. at 348). In other words, a defendant is not required to 

show prejudice in the traditional Strickland sense, i.e., that there is a reasonable 

probability the result of the proceeding would have been different. Strickland, 466 

U.S. at 692–94 (citing Cuyler, 446 U.S. at 345–50). Rather, "prejudice is 

presumed" if the defendant demonstrates that counsel "'actively represented 

conflicting interests' and that 'an actual conflict of interest adversely affected his 

lawyer's performance.'" Strickland, 466 U.S. at 692 (quoting Cuyler, 446 U.S. at 

350); see also Duncan, 281 S.C. at 438, 315 S.E.2d at 811 (quoting Cuyler, 446 

U.S. at 348)); Lomax v. State, 379 S.C. 93, 102, 665 S.E.2d 164, 168 (2008). 

An actual conflict of interest arises where: 

a defense attorney places himself in a situation inherently 

conducive to divided loyalties. If a defense attorney 

owes duties to a party whose interests are adverse to 

those of the defendant, then an actual conflict exists. The 

interests of the other client and the defendant are 

sufficiently adverse if it is shown that the attorney owes a 

duty to the defendant to take some action that could be 

detrimental to his other client. 

Jordan v. State, 406 S.C. 443, 449, 752 S.E.2d 538, 541 (2013) (quoting Duncan, 

281 S.C. at 438, 315 S.E.2d at 811 (quoting Zuck v. Alabama, 588 F.2d 436, 439 

(5th Cir. 1979))). In a PCR proceeding, the applicant bears the burden of proving 

her attorney had a conflict of interest necessitating relief. Jordan, 406 S.C. at 449, 

752 S.E.2d at 541. 
 

Generally, this Court gives great deference to the PCR court's findings of fact and 

conclusions of law. Miller v. State, 379 S.C. 108, 115, 665 S.E.2d 596, 599 

(2008). However, this Court will reverse the decision of the PCR court when it is 

controlled by an error of law. Terry v. State, 383 S.C. 361, 371, 680 S.E.2d 277, 

282 (2009) (citation omitted). 

A majority of the Court of Appeals held an actual conflict of interest existed prior 

to petitioner's trafficking in methamphetamine trial; we agree, and the State does 

not challenge this assertion. 

Notably, several events occurred between trial counsel's representation of 

petitioner on the trafficking in marijuana charge beginning in January 2002, and 

petitioner's trafficking in methamphetamine trial in July 2002, that, collectively, 

demonstrate an actual conflict of interest existed. Those indicators are, inter alia: 

Perez exhibiting an interest in petitioner's case when he paid, at least in part, if not 

in full, petitioner's attorney's fees; a clear, close connection between petitioner's 

mother and Perez; petitioner and Perez's arrests for trafficking in marijuana over 

one thousand pounds in a very short time frame in the same geographical area; and 

the unlikelihood that a juvenile would act independently when engaging in 

trafficking over one thousand pounds of marijuana. We find particularly troubling 

the fact that trial counsel admitted to discussing with petitioner's mother ways in 

which she could come up with the money to pay petitioner's attorney's fees on the 

methamphetamine charge, and one of the ways discussed was using the funds 

recovered in Perez's forfeiture action in which he was represented by trial counsel. 

See Wood v. Georgia, 450 U.S. 261, 268–69 (1981) (finding "inherent dangers [] 

arise when a criminal defendant is represented by a lawyer hired and paid by a 

third party, particularly when the third party is the operator of the alleged criminal 

enterprise."). Accordingly, we find the Court of Appeals correctly held an actual 

conflict of interest existed due to trial counsel's representation of both petitioner 

and Perez. 

However, the Court of Appeals' majority then held, "Although an actual conflict 

existed, because trial counsel did not recognize the conflict, Gonzales cannot 

demonstrate the conflict affected trial counsel's performance." Gonzales, 412 S.C. 

at 498, 772 S.E.2d at 567–68 (emphasis supplied). We find this assertion—which 

suggests that only an attorney who intentionally violates his duty of loyalty has a 

conflict of interest—amounts to an error of law. Stated another way, the Court of 

Appeals' majority opinion is tantamount to holding that regardless of how 
egregious the evidence may be that an actual conflict of interest exists, unless the 

attorney acknowledges the conflict, it cannot be shown the conflict adversely 

affected the attorney's performance. We find that such a holding is contrary to this 

Court's precedent. See, e.g., Jordan, 406 S.C. 443, 752 S.E.2d 538 (2013) 

(demonstrating trial counsel's testimony stopped short of acknowledging the 

existence of an actual conflict of interest); cf. State v. Gregory, 364 S.C. 150, 153, 

612 S.E.2d 449, 450–51 (2005); Duncan, 281 S.C. 435, 315 S.E.2d 809 (1984). 

While trial counsel's failure to recognize the actual conflict may have resulted in 

his inability to provide effective assistance of counsel, his recognition of the 

conflict is not required to show it adversely affected trial counsel's performance. 

See Duncan, 281 S.C. at 438, 315 S.E.2d at 811 (holding in conflict of interest 

inquires, prejudice is presumed where the defendant demonstrates counsel 

"actively represented conflicting interests" and that an "actual conflict of interest 

adversely affected his lawyer's performance" (citations omitted)); cf. Cuyler, 446 

U.S. at 347 (finding an attorney representing two defendants in a criminal matter is 

in the best position professionally and ethically to determine when a conflict of 

interest exists or may develop in the course of a trial (citing Holloway, 435 U.S. at 

485 (quoting State v. Davis, 110 Ariz. 29, 31 (1973)))). 

Evidence that the actual conflict of interest adversely affected trial counsel's 

performance is demonstrated by his failure to advise petitioner as to favorable 

options he may have otherwise exercised—favorable options appellate counsel 

successfully negotiated in both the federal and state context. Cf. Strickland, 466 

U.S. at 692 (noting the difficulty in "measure[ing] the precise effect on the defense 

of representation corrupted by conflicting interests."); United States v. Almany, 621 

F.Supp.2d 561, 569–70 (E.D. Tenn. 2008) (finding where an attorney represents 

two members of a drug distribution conspiracy, the lack of effort by the attorney to 

explore his client's potential for a plea agreement or cooperate with the 

"Government" was, "in itself, strong evidence of a conflict," and noting, 

"Exploring possible plea negotiations is an important part of providing adequate 

representation of a criminal client, and this part is easily precluded by a conflict of 

interest" (citing United States v. Hall, 200 F.3d 962, 965 (6th Cir. 2000); United 

States v. McLain, 823 F.2d 1457, 1464 (11th Cir. 1987) (citing Holloway, 435 U.S. 

at 490); Newman v. United States, 1998 WL 553048, at *3 (6th Cir. 1998); 

Mannhalt v. Reed, 847 F.2d 576, 582 (9th Cir. 1988); United States v. Lopez, 989 

F.2d 1032, 1043, amended and superseded by United States v. Lopez, 4 F.3d 1455 

(9th Cir. 1993); United States v. Tatum, 943 F.2d 370, 376 (4th Cir. 1991); United 
States v. Balsirov, 2005 WL 1185810 (E.D. Va. 2005)). Indeed, a lieutenant 

involved in the state investigations of petitioner and Perez testified at the PCR 

hearing that the conflict of interest "absolutely" hindered law enforcement's ability 

to secure cooperation from petitioner prior to Perez being transferred to federal 

jurisdiction. And an Assistant United States Attorney testified there was "no 

question" had petitioner been available for cooperation before his 

methamphetamine trial, their office would have appealed to state prosecutors 

advocating petitioner receive favorable treatment for his extensive cooperation in 

the Perez investigation. 

In conclusion, we hold that regardless whether an attorney recognizes an actual 

conflict of interest, if the conflict adversely affected the attorney's performance, the 

applicant has established his entitlement to relief. Accordingly, we find the Court 

of Appeals erred as a matter of law in determining that because trial counsel failed 

to recognize the actual conflict of interest, petitioner could not show he was 

adversely affected, and that he therefore failed to meet his burden of proof. 

CONCLUSION 

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

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