2019 UT App 115

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

WILLIAM TIRADO,

Appellant.

Opinion

No. 20140967-CA

Filed July 5, 2019

Second District Court, Ogden Department

The Honorable Ernest W. Jones

No. 121901668

Margaret P. Lindsay and Douglas J. Thompson,

Attorneys for Appellant

Sean D. Reyes and Kris C. Leonard, Attorneys

for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, 

in which JUDGES KATE APPLEBY and JILL M. POHLMAN concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 William Tirado challenges his conviction on one count of 

arranging the distribution of a controlled substance, a seconddegree felony, on the ground that he received ineffective 

assistance of counsel because his trial counsel had an actual 

conflict of interest. We previously remanded this case for the 

trial court to make additional findings pursuant to rule 23B of 

the Utah Rules of Appellate Procedure. See State v. Tirado, 2017 

UT App 31, ¶ 26, 392 P.3d 926. The trial court did so and 

concluded that Tirado received ineffective assistance of counsel. 

Having reviewed the trial court’s findings and conclusions, we 

reverse Tirado’s conviction and remand for a new trial.
State v. Tirado

20140967-CA 2 2019 UT App 115

BACKGROUND

¶2 Tirado was arrested following a sting operation in which 

a paid informant (Informant) attempted to purchase drugs from 

Tirado and his cousin (Cousin).1 Although communication 

between Informant and Tirado was vague and no drugs 

exchanged hands, the investigating officer (Officer) arrested 

Cousin pursuant to outstanding warrants and discovered that he 

had 2.1 grams of methamphetamine on his person. When asked 

about the methamphetamine, Cousin allegedly told Officer that 

“if he needed to sell [methamphetamine], he would sell from 

that specific amount.”

¶3 Officer also took Tirado into custody. Although Officer 

found no drugs or paraphernalia on Tirado’s person, officers 

ultimately discovered drug paraphernalia at Tirado’s residence 

after obtaining permission from Tirado’s fiancée to search it. 

Tirado was charged with possession of drug paraphernalia, a 

class A misdemeanor, and arranging the distribution of a 

controlled substance, a second-degree felony.

¶4 The same appointed counsel (Attorney) represented both 

Tirado and Cousin. Cousin eventually pleaded guilty to 

attempted possession of a controlled substance with intent to 

distribute. Attorney was unable to obtain a plea deal for Tirado, 

and his case went to trial.

¶5 At trial, Attorney did not call Cousin as a witness or 

object when Officer testified regarding Cousin’s statement about 

his intent to sell methamphetamine. Tirado was ultimately

convicted of both charges and appealed his conviction for 

arranging the distribution of a controlled substance.

 

1. Additional facts were articulated in our previous opinion. See 

State v. Tirado, 2017 UT App 31, ¶¶ 2–8, 392 P.3d 926.
State v. Tirado

20140967-CA 3 2019 UT App 115

¶6 On appeal, Tirado asserted that he received ineffective 

assistance of counsel because Attorney’s concurrent 

representation of both Tirado and Cousin constituted “an actual 

conflict of interest which adversely affected counsel’s 

performance.” Specifically, he alleged that the conflict affected 

Attorney’s decision “not to challenge the evidence relating to 

Cousin and not to call Cousin as a witness.” State v. Tirado, 2017 

UT App 31, ¶ 16, 392 P.3d 926. Concurrent with his appeal, 

Tirado moved this court to remand the case pursuant to rule 23B 

of the Utah Rules of Appellate Procedure to enable the trial court 

to make factual findings regarding Attorney’s alleged conflict. 

We granted Tirado’s motion, directing the trial court to 

determine “(1) whether Attorney’s representation of Cousin 

resulted in an actual conflict of interest with respect to his 

representation of Defendant, to which Defendant did not 

consent, and (2) whether that conflict of interest caused 

Attorney’s representation of Defendant to be constitutionally 

ineffective.” Id. ¶ 26.

¶7 On remand, the trial court held a three-day evidentiary 

hearing to assess Tirado’s ineffective assistance claims. The court 

determined that Attorney had read the police reports upon being 

assigned to Tirado’s case and was aware that Cousin was 

arrested at the same time and that Attorney had also been 

assigned to represent Cousin, whom he had represented in other 

cases. The trial court further found that Cousin had told 

Attorney that he was willing to testify on Tirado’s behalf. 

Specifically, Cousin was prepared to testify that he and Tirado 

“were not working together to sell those drugs, he did not have 

Tirado contact [Informant] on the phone to arrange a drug deal, 

and Tirado was not acting” as an agent for Cousin. Cousin also 

told Attorney that he would deny that he ever admitted to police 

that he intended to sell the drugs found in his pocket. The court 

found that such statements would have been inconsistent with 

the admission Cousin made in his plea agreement that he 
State v. Tirado

20140967-CA 4 2019 UT App 115

knowingly and intentionally possessed and attempted to 

distribute methamphetamine.

¶8 Based on the information submitted at the evidentiary 

hearing, the trial court concluded that Attorney had labored 

under an actual conflict of interest because “[s]imultaneously 

representing both Tirado and [Cousin] created a substantial risk 

that [Attorney’s] representation of Tirado would be materially 

limited by his responsibilities to [Cousin].” Moreover, because 

Tirado’s case rested on his assertion that he did not intend to 

distribute drugs, Cousin’s plea, which Attorney arranged and in 

which Cousin admitted his intent to distribute, had the potential 

to undermine Tirado’s defense. The court further concluded that 

this conflict affected Attorney’s ability to adequately represent 

Tirado because Attorney could not call Cousin as a witness in 

Tirado’s case without violating his duties to Cousin, due to the 

possibility that Cousin’s testimony would open Cousin up to 

perjury charges, and because Attorney could not put himself in a 

position where he would be forced to cross-examine Cousin, as 

“‘[a]n attorney who cross-examines former clients inherently 

encounters divided loyalties.’” (Quoting United States v. Voigt, 89 

F.3d 1050, 1078 (3d Cir. 1996).)

¶9 The court also assessed Tirado’s assertion that Attorney 

performed ineffectively by failing to object to the hearsay 

statement in Officer’s testimony. It concluded that the State’s 

theory at trial was bolstered by what Cousin allegedly told 

Officer about his intent concerning the drugs—that “if he needed

to sell it, he would sell from that specific amount.” The court 

found that the failure to object to this testimony was not 

supported by any reasonable trial strategy and that Tirado was 

prejudiced by the statement because the State relied on it as 

evidence of Tirado’s intent to distribute, since Tirado was 

allegedly acting as the go-between for Cousin and Informant.
State v. Tirado

20140967-CA 5 2019 UT App 115

¶10 After the trial court issued its findings and conclusions, 

the State challenged the court’s determination that Tirado

received ineffective assistance, asserting that the findings did not 

support a conclusion that Attorney’s conflict adversely affected 

his performance and that the trial court exceeded the scope of its 

mandate on remand by reaching conclusions concerning 

Attorney’s failure to object to Officer’s hearsay statements. 

Tirado, on the other hand, requests that we accept the trial 

court’s findings and conclusions and reverse his conviction.

ISSUE AND STANDARD OF REVIEW

¶11 Tirado’s ineffective assistance of counsel claim turns on 

his assertion that Attorney was laboring under an actual conflict 

of interest that adversely affected his performance. “In ruling on 

an ineffective assistance claim following a Rule 23B hearing, we 

defer to the trial court’s findings of fact, but review its legal 

conclusions for correctness.”2 State v. Bredehoft, 966 P.2d 285, 289 

(Utah Ct. App. 1998) (quotation simplified).

 

2. Tirado asserts that further review of the trial court’s decision is 

unnecessary because we should simply “accept the findings and 

conclusions issued by the district court.” Tirado cites the 

language of our mandate to the trial court, which directed it to 

determine “(1) whether Attorney’s representation of Cousin 

resulted in an actual conflict of interest with respect to his 

representation of Defendant, to which Defendant did not 

consent, and (2) whether that conflict of interest caused Attorney’s 

representation of Defendant to be constitutionally ineffective.” See 

Tirado, 2017 UT App 31, ¶ 26 (emphasis added). Tirado asserts 

that by issuing the order, this court essentially delegated its

decision regarding ineffective assistance to the trial court and 

can now review the trial court’s determination only if Tirado 

(continued...)
State v. Tirado

20140967-CA 6 2019 UT App 115

ANALYSIS

¶12 The State asserts that the trial court erred in concluding 

that Tirado received ineffective assistance of counsel, because the 

evidence did not support a determination that the conflict 

“actually affected the adequacy of [Attorney’s] representation.” 

 

(...continued)

seeks further review. But this is not the case. The purpose of rule 

23B remand is to permit the trial court to enter “findings of fact, 

necessary for the appellate court’s determination of a claim of

ineffective assistance of counsel.” Utah R. App. P. 23B(a) 

(emphasis added). Frequently, this court may request that a 23B 

court go one step further and make legal conclusions, or a 23B

court may do so on its own initiative. See, e.g., State v. Taylor, 947 

P.2d 681, 684 (Utah 1997) (identifying the issue on rule 23B 

remand as whether counsel had “provided ineffective assistance 

of counsel and in doing so prejudiced the outcome”); State v. 

Bair, 2012 UT App 106, ¶ 8, 275 P.3d 1050 (remanding for a 

determination of “whether trial counsel was ineffective” with 

respect to four separate issues (quotation simplified)); State v. 

Millard, 2010 UT App 355, ¶ 11, 246 P.3d 151 (reciting the rule 

23B court’s legal conclusions that counsel did not perform 

deficiently and that the defendant did not suffer prejudice). 

Given the fact-dependent nature of the ineffective assistance 

inquiry and the deference an appellate court is required to give 

to a trial court’s factual determinations, it is natural and helpful 

for the trial court to apply its findings of fact to reach legal 

conclusions regarding ineffective assistance on rule 23B remand. 

But the purpose of a remand pursuant to rule 23B—to 

supplement the record with findings sufficient to permit 

appellate review, see Utah R. App. P. 23B(a)—dictates that the 

ultimate resolution of the matter of counsel’s ineffectiveness, 

which originated on appeal, must be accomplished by the 

appellate court that ordered the remand in the first place.
State v. Tirado

20140967-CA 7 2019 UT App 115

See Mickens v. Taylor, 535 U.S. 162, 168 (2002) (quotation 

simplified); see also Cuyler v. Sullivan, 446 U.S. 335, 348 (1980) (“In 

order to establish a violation of the Sixth Amendment, a 

defendant who raised no objection at trial must demonstrate that 

an actual conflict of interest adversely affected his lawyer’s 

performance.”). The State maintains that an actual conflict of 

interest cannot be established unless there was “no tactical 

reason other than the alleged conflict for counsel’s decision.”

¶13 But this is not the standard for evaluating the adverse 

effect of a conflict of interest in the Sixth Amendment context. 

When evaluating a claim that a conflict of interest caused an 

attorney not to do something, we consider “(1) whether the 

arguments or actions allegedly omitted would likely have been 

made by other counsel, and (2) whether there was a tactical 

reason (other than the asserted conflict) for the omission.” State 

v. Webb, 790 P.2d 65, 76 (Utah Ct. App. 1990); see also State v. 

Lovell, 1999 UT 40, ¶ 24, 984 P.2d 382. This is different from the 

general standard for evaluating counsel’s performance under 

Strickland v. Washington, 466 U.S. 668 (1984), which requires a 

defendant to persuade us that there was “no conceivable tactical 

basis” for counsel’s actions. See State v. Clark, 2004 UT 25, ¶ 6, 89 

P.3d 162 (emphasis omitted) (citing Strickland, 466 U.S. at 689). In 

the case of a conflict of interest based on an omission, even if 

there was a conceivable tactical basis for counsel’s decision, we 

also assess “whether the arguments or actions allegedly omitted 

would likely have been made by other counsel.” Webb, 790 P.2d 

at 76.

¶14 The State asserts that Attorney’s decision not to call 

Cousin as a witness for Tirado was sound trial strategy because 

there were a number of credibility concerns with Cousin’s 

testimony, Cousin would have been subject to impeachment 

with his criminal record, and Cousin would have appeared at 

trial in prison clothes. Attorney claims he ultimately believed it 

would hurt Tirado to be associated with Cousin. However, 
State v. Tirado

20140967-CA 8 2019 UT App 115

Tirado was already associated with Cousin and his criminal 

record even without Cousin’s in-court testimony, as the State’s 

case rested on the assertion that Tirado was acting as a conduit 

between Cousin and Informant. The trial court on remand found 

that Cousin’s testimony would have been helpful to Tirado, and 

we are not convinced that further associating Tirado and Cousin, 

when the State had already done so, would have undermined 

Tirado’s defense.

¶15 Even if Attorney’s effort to distance Tirado from Cousin 

could be considered a sound trial strategy based upon the 

circumstances of this case, we think it likely that other counsel, 

unhampered by a conflict of interest, would have approached 

the case differently. Because Attorney could not ethically call 

Cousin to the stand without compromising his duties to Cousin, 

he was inherently more likely than a conflict-free attorney to 

adopt a strategy that did not require him to call Cousin as a 

witness. Another attorney, without conflicting representation,

would have been more likely to determine that because Tirado 

was already associated with Cousin, the additional association 

the jury might make if Cousin testified in Tirado’s defense was 

outweighed by the potential exculpatory value of Cousin’s 

testimony.

¶16 Likewise, we are concerned that Attorney’s failure to 

object to Officer’s statement was influenced by the conflict in 

representation.3 The statement was inadmissible hearsay, offered 

 

3. The State argues that the trial court exceeded the scope of its 

mandate by reaching the question of whether counsel was 

ineffective for failing to object to Officer’s statement. But this 

issue was raised on appeal in the context of Tirado’s claim that 

Attorney labored under an actual conflict of interest. Tirado 

asserted on appeal that the reason Attorney failed to object to the 

statement on hearsay or confrontation grounds was “because 

(continued...)
State v. Tirado

20140967-CA 9 2019 UT App 115

“to prove the truth of the matter asserted,” see Utah R. Evid. 

801(c)(2); see also id. R. 802, and Tirado could have derived no 

conceivable benefit from its admission. Other counsel likely 

“would have approached the case differently,” and we see no 

reasonable explanation for Attorney’s failure to object to the 

admission of hearsay other than the conflict. See Lovell, 1999 UT 

40, ¶ 24. 

¶17 The State asserts that any deficiency in failing to object to 

Officer’s statement was harmless because Cousin’s plea, which 

was also admitted, contained the evidence of Cousin’s 

admission. However, in reviewing whether a defendant has 

received ineffective assistance as a result of a conflict of interest 

arising from concurrent representation, “we presume prejudice 

if the defendant demonstrates that an actual conflict of interest 

 

(...continued)

either of those objections would have required the State to call 

[Cousin] as a witness and would have required trial counsel to 

cross-examine and impeach his own client.” See United States v. 

Voigt, 89 F.3d 1050, 1078 (3d Cir. 1996) (“An attorney who crossexamines former clients inherently encounters divided 

loyalties.” (quotation simplified)); Castillo v. Estelle, 504 F.2d 

1243, 1245 (5th Cir. 1974). Thus, the trial court’s mandate 

included assessing whether Attorney’s conflict of interest 

adversely affected his decision not to object to Officer’s trial 

statement and whether Tirado received ineffective assistance of 

counsel as a result. On rule 23B remand, the trial court framed its 

conclusion a bit differently—it determined that the failure to 

object constituted ineffective assistance regardless of whether 

that decision was the result of Attorney’s conflict of interest. But 

the trial court’s framing of the issue—at least in the context 

presented here—did not take the issue outside the scope of the 

court’s mandate.
State v. Tirado

20140967-CA 10 2019 UT App 115

adversely affected his lawyer’s performance.” State v. Brandley, 

972 P.2d 78, 85 (Utah Ct. App. 1998) (quotation simplified).

¶18 Because we are convinced that another attorney, 

unhampered by concurrent representation of Tirado and Cousin,

was likely to have called Cousin to the stand and likely would 

have objected to Officer’s hearsay statement, we conclude that

Attorney was laboring under an actual conflict of interest and 

that Tirado received ineffective assistance of counsel as a result.4

CONCLUSION

¶19 Having reviewed the trial court’s findings of fact and 

conclusions of law after the rule 23B remand, we agree that 

Attorney’s concurrent representation of Tirado and Cousin 

 

4. We are also troubled by Attorney’s negotiation of a plea 

agreement for Cousin that ultimately affected Tirado in a 

negative way. The trial court found that Attorney “did not 

consider how [Cousin’s] plea to a distribution offense in this case 

might affect Tirado’s case” and “did not discuss [Cousin’s] plea 

with Tirado.” Police found no drugs on Tirado’s person and 

found only drug paraphernalia at his home, so the State’s ability 

to prove that Tirado was involved in the distribution of drugs 

turned on its theory that Tirado was acting as the go-between for 

Cousin and Informant. Without Cousin’s alleged statement to 

Officer regarding his own intent and Cousin’s conviction for 

possession with intent to distribute, the State’s only significant 

evidence that Tirado was involved in a drug transaction was his 

vague phone call with Informant, in which there was no actual 

discussion of drugs. While separate representation likely would 

not have precluded introduction of Cousin’s plea agreement at 

Tirado’s trial, it is concerning that Tirado’s counsel was involved 

in negotiating that primary piece of evidence against him.
State v. Tirado

20140967-CA 11 2019 UT App 115

constituted an actual conflict of interest that adversely affected 

the adequacy of Attorney’s representation of Tirado. Absent 

conflicting representation, it is likely that another attorney 

would have called Cousin to testify in Tirado’s defense and 

would have objected to the admission of Officer’s hearsay 

statement. Tirado therefore received ineffective assistance of 

counsel in violation of the Sixth Amendment to the United States 

Constitution. Accordingly, we reverse Tirado’s conviction of 

arranging the distribution of a controlled substance and remand 

for a new trial.