2017 UT App 31

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

WILLIAM TIRADO,

Appellant.

Opinion

No. 20140967-CA

Filed February 16, 2017

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 authored this Opinion, in 

which JUDGES KATE A. TOOMEY and JILL M. POHLMAN concurred.

CHRISTIANSEN, Judge:

¶1 William Tirado (Defendant) challenges his conviction on 

one count of arranging the distribution of a controlled substance, 

a second degree felony.1 Specifically, he contends that he 

received constitutionally ineffective assistance of counsel 

 

1. The cover of Defendant’s brief refers only to this charge but 

the statement-of-the-case section suggests Defendant is also 

challenging his conviction of one count of possession of drug 

paraphernalia, a class A misdemeanor. Given our resolution of 

Defendant’s rule 23B motion, we need not address this 

discrepancy.
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because his attorney labored under a conflict of interest arising 

from the concurrent representation of Defendant’s cousin 

(Cousin) on related charges. Defendant seeks (1) reversal of his 

conviction(s) and remand for a new trial or (2) remand for an 

evidentiary hearing pursuant to rule 23B of the Utah Rules of 

Appellate Procedure. We remand for a limited evidentiary 

hearing.

BACKGROUND

¶2 On appeal from a jury verdict, we view the evidence and 

all reasonable inferences in the light most favorable to that 

verdict and recite the facts accordingly; however, we also discuss 

conflicting evidence as necessary to understand the issues raised 

on appeal. State v. Dozah, 2016 UT App 13, ¶ 2, 368 P.3d 863.

¶3 A confidential informant approached his police contact

(Officer), saying that he had arranged to purchase approximately 

7 grams of methamphetamine from Defendant for $440. Officer 

set up a sting operation to catch those involved.

¶4 Officer drove past Defendant’s house and saw him 

standing out front with Cousin. Officer recognized Cousin as 

someone with whom he “had prior dealings” for drug activities. 

Officer parked around the corner and had the informant call 

Defendant. The informant asked Defendant whether “he had it”

and then confirmed “four-four-zero.” Although there was no 

specific mention of drugs, Officer testified at trial that such 

obfuscations were a normal part of drug transactions. Indeed, 

while testifying at trial, the informant stated that asking whether 

Defendant “had it” meant asking “if he had the dope, if he had it 

on him.”

¶5 The informant then told Defendant to meet him near a 

library. Officer searched the informant before giving him cash to 

make the deal and fitting him with an audio recording device.
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20140967-CA 3 2017 UT App 31

Officer instructed the informant not to cross the street “for his 

and for officer safety.” The informant then walked down the 

street and stopped at a corner across the street from Defendant, 

who asked if the informant had the money. After the informant 

replied affirmatively, Defendant stated that “my friend’s already 

left” or “they’ve already left.” Due to Officer’s instruction not to 

cross the street, the informant and Defendant “held at their 

corners” and “were mostly conversing back and forth across the 

street, mostly trying to get one another to cross the street to meet.” 

Ultimately, the two did not have a face-to-face meeting, no drug 

transaction took place, and the informant just walked away.

¶6 Officer then arrested Cousin, apparently because Cousin 

was already wanted on other drug charges. Cousin had 2.1 

grams of methamphetamine on his person—less than half of the 

7 grams the informant had agreed to buy from Defendant. 

Cousin stated in his police interview that “if he needed to sell 

[methamphetamine], he would sell from that specific amount.”

At Defendant’s trial, Officer testified that, in previous sting 

operations, Officer himself had purchased drugs from Cousin. 

Officer further testified that “from my knowledge of [Cousin], he 

deals directly to his people” and did not use an intermediary.

¶7 Officer also took Defendant into custody, but found no 

drugs or paraphernalia on his person. While Defendant was in 

custody, other police officers obtained permission from 

Defendant’s fiancée and roommate to search his home. The 

search turned up drug paraphernalia—pipes, baggies, and 

scales—that Defendant later admitted were “all his.” Defendant 

was charged by information with possession of drug

paraphernalia; after he pled not guilty to that charge, the State 

amended the information to add the felony charge of arranging 

the distribution of a controlled substance.

¶8 Defendant and Cousin were represented by the same 

appointed counsel (Attorney) in their separate cases. Cousin 

pled guilty to amended charges stemming from his involvement 
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20140967-CA 4 2017 UT App 31

in this case. At Defendant’s subsequent trial, Attorney did not 

call Cousin as a witness and did not challenge Cousin’s out-ofcourt statements that were admitted as evidence against 

Defendant. The jury returned guilty verdicts on both counts and 

Defendant timely appealed.

ISSUE AND STANDARD OF REVIEW

¶9 Defendant contends that he received constitutionally 

ineffective assistance of counsel because Attorney “labor[ed] 

under an actual conflict of interest which adversely affected 

counsel’s performance.” He seeks reversal of his conviction or, 

alternatively, a remand to the district court to conduct an 

evidentiary hearing to supplement the record regarding this 

claim.

¶10 When a claim of ineffective assistance of counsel is raised 

for the first time on appeal, there is no lower court ruling to 

review and we must determine whether the defendant was 

deprived of the effective assistance of counsel as a matter of law. 

Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587. Similarly, 

because a motion seeking a rule 23B remand is necessarily 

brought for the first time on appeal, no standard of review 

applies.

ANALYSIS

¶11 Defendant contends that Attorney’s representation of 

both Defendant and Cousin amounted to a conflict of interest, 

and that the conflict of interest caused Attorney’s representation 

of Defendant to fall below the constitutionally mandated level.

Specifically, Defendant argues that Attorney’s duties of loyalty 

to both Defendant and Cousin led to “a significant risk that the 

representation of one or more clients [would] be materially 

limited by the lawyer’s responsibilities to another client.” See 

Utah R. Prof’l Conduct 1.7(a)(2).
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20140967-CA 5 2017 UT App 31

¶12 Defendant notes that, by the time of Defendant’s trial, 

Cousin had pled guilty to attempted possession of a controlled 

substance and had been sentenced.2 Defendant points to the fact 

that the State’s introduction of “evidence of [Cousin’s] crime, his 

statements, [and] his criminal history . . . was admitted without 

objection or challenge from the defense” and argues that “this 

evidence was used by the State to bolster the otherwise 

unsupported claims of the paid confidential informant.”

Defendant asserts that Attorney’s decision not to challenge this 

evidence was the result of Attorney being “forced to choose to 

compromise [Defendant’s] interests in challenging the State’s 

evidence . . . , or to compromise [Cousin’s] interest in keeping his 

confidential communications private, in maintaining the 

lawyer/client relationship and loyalty, and in keeping in the 

good graces of the State.” Essentially, Defendant claims that 

Attorney was unable to wholeheartedly and zealously represent 

him because Attorney was worried about compromising 

Cousin’s attorney–client confidences or jeopardizing Cousin’s 

status with the State or the Board of Pardons and Parole.3

 

2. Defendant highlights Cousin’s affidavit submitted in support 

of Defendant’s rule 23B motion, in which Cousin stated that 

before entering his plea, “I was also defending myself in several 

other cases. [Attorney] was also appointed to represent me in 

those cases.” The State responds that the existence and timing of 

those other cases is purely speculative due to Defendant’s failure 

to include any identifying information about them. We need not 

resolve this issue, because our decision to remand is based on 

Attorney’s representation of Cousin in his attempted-possession 

case filed contemporaneously with Defendant’s case.

3. We note the wide scope of information that the Board of 

Pardons and Parole is entitled to rely upon in its parole 

decisions. See Northern v. Barnes, 825 P.2d 696, 699 (Utah Ct. App. 

1992) (noting that the Board of Pardons had the discretion to rely 

(continued...)
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20140967-CA 6 2017 UT App 31

¶13 “To succeed on a claim of ineffective assistance of 

counsel, a defendant must show that trial counsel’s performance 

was deficient and that the defendant was prejudiced thereby.” 

State v. Hards, 2015 UT App 42, ¶ 18, 345 P.3d 769 (citing 

Strickland v. Washington, 466 U.S. 668, 687 (1984)). “Where trial 

counsel’s alleged ineffectiveness caused or exacerbated record 

deficiencies, defendants . . . have an appropriate procedural tool 

for remedying those deficiencies.” State v. Litherland, 2000 UT 76, 

¶ 16, 12 P.3d 92. That tool is rule 23B of the Utah Rules of 

Appellate Procedure. Id. ¶¶ 13–15. Rule 23B allows an appellant 

to make a motion to “remand the case to the trial court for entry 

of findings of fact, necessary for the appellate court’s 

determination of a claim of ineffective assistance of counsel.” 

Utah R. App. P. 23B(a). However, “[t]he motion shall be 

available only upon a nonspeculative allegation of facts, not fully 

appearing in the record on appeal, which, if true, could support 

a determination that counsel was ineffective.” Id.

¶14 Generally, a defendant’s motion seeking rule 23B remand 

must meet several requirements: (1) it must be supported by 

affidavits alleging facts outside the existing record, (2) the 

alleged facts must be non-speculative, and (3) the alleged facts, if 

true, must establish both elements of a traditional ineffectiveassistance claim, i.e., counsel’s deficient performance and 

resulting prejudice. State v. Griffin, 2015 UT 18, ¶¶ 18–20. But 

where a defendant’s ineffective-assistance claim is based on trial 

counsel’s alleged conflict of interest, the third requirement must 

be modified. Rather than establish deficient performance and 

 

(...continued)

on information adduced at a hearing eight years after sentencing 

and that the exercise of such discretion is “precisely the kind[] of 

issue[] that [is] not subject to judicial review”); see also Padilla v. 

Board of Pardons & Parole, 2016 UT App 150, ¶ 6, 380 P.3d 1 (per 

curiam).
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20140967-CA 7 2017 UT App 31

resulting prejudice, the defendant must instead show that trial 

counsel was subject to a conflict of interest and that the conflict 

of interest adversely “affected the adequacy of his 

representation.” See Mickens v. Taylor, 535 U.S. 162, 171–72 (2002)

(citation and internal quotation marks omitted); see also Lafferty v. 

State, 2007 UT 73, ¶ 62, 175 P.3d 530 (explaining that a defendant 

“must show that an actual conflict of interest adversely affected 

his lawyer’s performance” (citation and internal quotation marks 

omitted)).

¶15 Here, Defendant’s motion is accompanied by several 

documents, including affidavits from himself and Cousin, a 

letter Cousin wrote to the judge in Cousin’s case, and Cousin’s 

statement in support of his guilty plea. Based on the facts alleged 

in these documents, Defendant suggests that Attorney may have 

made the decision not to call Cousin as a witness in Defendant’s 

trial due to a conflict of interest. Defendant explains that, if 

granted a rule 23B remand, he would subpoena Attorney to 

question him about that decision.

¶16 The State opposes remand, arguing first that “[m]uch of 

the information” attached by affidavit to Defendant’s rule 23B 

motion “already appear[s] in the record”; in other words, that 

the motion is not supported by facts outside the existing record.

We agree that a significant portion of the affidavit information is 

indeed duplicative of information already in the record. But

much is not all; even the State does not assert duplicativeness as 

to Cousin’s affidavit, a letter from Cousin to the judge, and 

Defendant’s own affidavit. These attachments contain 

information relevant to Defendant’s allegation that Attorney 

refrained from fully exploring Cousin’s involvement in and 

responsibility for the attempted drug deal. For example, 

Cousin’s affidavit claims that Attorney did not ask him about 

testifying at Defendant’s trial and that, if Cousin had been called, 

he would have testified that he did not arrange to have 

Defendant act as an intermediary in a drug deal. Cousin’s letter 

to the judge in his case and his affidavit in this case suggest that 
State v. Tirado

20140967-CA 8 2017 UT App 31

Attorney was representing Cousin in other matters beyond the 

attempted-possession case. And Defendant’s affidavit claims 

that he brought the issue of Cousin testifying to Attorney’s 

attention and that he had believed that Cousin would in fact be 

called to testify. These pieces of information establish the need 

for a rule 23B remand. Specifically, the information explains why 

Attorney should be subpoenaed to testify regarding the 

reasoning behind his election not to challenge the evidence 

relating to Cousin and not to call Cousin as a witness. Thus, the 

rule 23B motion contains relevant facts that are outside the

existing record.

¶17 The State also asserts that, “[a]ssuming Defendant’s extrarecord evidence is true, his claim of an actual conflict of interest 

remains entirely speculative.” The Utah Supreme Court has 

recently clarified the term speculative in the context of a rule 23B 

motion:

“Speculation” is “mere guesswork or surmise,” a 

“conjecture,” or a “guess.” In the context of rule 

23B, speculative allegations are those that have 

little basis in articulable facts but instead rest on 

generalized assertions. . . . [W]hen a defendant 

alleges that counsel failed to investigate or call a 

witness, the defendant must, at the very least, 

identify the witness. It is therefore “improper to 

remand a claim under rule 23B for a fishing 

expedition.” The mere hope that an individual may 

be able to provide information if subpoenaed to 

testify is not sufficient. An affiant must submit 

specific facts and details that relate to specific 

relevant occurrences.

State v. Griffin, 2015 UT 18, ¶ 19 (citations omitted).

¶18 The State argues that the rule 23B allegations are 

speculative because Defendant “proffers no impeachment 
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20140967-CA 9 2017 UT App 31

evidence that was available to [Attorney] that made 

impeachment possible.” We first note that Attorney’s failure to 

challenge the introduction of Cousin’s out-of-court statements

allowed the State to present that evidence, which was harmful to 

the defense, without any attempt by Attorney to mitigate its 

effect—for example, by highlighting Cousin’s other charges and 

plea deal.4 But in any event, the focus on impeachment ignores 

the possibility that Cousin’s direct testimony could have been 

helpful to Defendant. According to Cousin’s affidavit, he would 

have testified that he did not arrange to have Defendant act as an 

intermediary in the attempted drug deal. Such testimony might 

well have assisted the defense, especially given its source—the 

only person in this case who was found to be in possession of 

drugs. Thus, without regard to whether Cousin could have been 

impeached, the facts alleged in the rule 23B motion, “if true, 

could support a determination that counsel was ineffective.” See 

Utah R. App. P. 23B(a).

¶19 The State also argues that the alleged conflict of interest is 

speculative because, “without showing that [Attorney’s] 

decision actually advanced the crucial witness’s interests, the 

evidence suggests only objectively unreasonable representation 

that carries with it the burden of also proving prejudice.” The 

State notes that Defendant must prove that Attorney actually 

advanced Cousin’s interests over Defendant’s and asserts that 

Defendant “cannot make that showing.”

¶20 The factual allegations of Defendant’s rule 23B motion, if 

true, show that Cousin’s testimony could have assisted the 

defense, that Attorney was aware of that possibility, that Cousin 

had accepted a deal to plead guilty to a lesser charge than what 

 

4. Defendant notes that, while Cousin was arrested for a firstdegree felony, the State charged Cousin with a second-degree 

felony and then amended that charge to allow Cousin to plead 

guilty to only a third-degree felony.
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20140967-CA 10 2017 UT App 31

he had originally been charged with, and that Attorney knew 

Cousin was facing charges beyond the one to which he had pled 

guilty and been sentenced. And the record facts show that 

Attorney did not call Cousin to the stand or posit that Cousin 

was culpable of a greater crime than the lesser charge to which

he had pled guilty. These facts, considered together, raise the 

possibility that Attorney’s decision was the result of conflicting 

duties to Defendant and Cousin beyond mere speculation, i.e., 

the possibility is more than “mere guesswork or surmise.” See 

State v. Griffin, 2015 UT 18, ¶ 19 (citation and internal quotation 

marks omitted). For example, Attorney may well have been 

concerned that Cousin’s testimony would affect future decisions 

by the Board of Pardons and Parole or the State’s willingness to 

offer Cousin plea deals in his other cases. Furthermore, Attorney 

may have avoided confronting Cousin or challenging evidence 

relating to him because doing so might breach Attorney’s duties, 

including that of confidentiality, owed to Cousin.

¶21 Moreover, this is precisely the type of information gap 

that rule 23B was designed to address. The State’s argument

would place Defendant in a Catch-22; because Defendant does 

not know precisely the content of Attorney’s testimony, 

Defendant should not be allowed to subpoena Attorney to 

testify. We cannot agree to such a restrictive interpretation of 

rule 23B with respect to ineffective-assistance-of-counsel claims

based on conflicts of interest. Indeed, the person most able to 

explain Attorney’s decision is Attorney himself, and the rule 23B 

motion explains that Defendant seeks to subpoena Attorney

about that decision on remand. Cf. id. (rejecting “a strict 

rule . . . that the affidavit must come from the potential witness 

himself”).

¶22 The State further argues that perhaps “a tactical reason 

other than the alleged conflict exists for [Attorney’s] decision not 

to ensure [Cousin] took the stand.” The State notes that Attorney 

was able to present a defense not reliant on Cousin’s testimony 

and that presenting Cousin to the jury may have “deteriorated 
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20140967-CA 11 2017 UT App 31

the evidence” supporting that defense. Specifically, although the 

State concedes that Defendant’s strategy was to portray himself 

as “a drug user but not a seller” and to “convince the jury that he 

did not become a seller simply by associating with someone who 

intended . . . to sell meth,” the State asserts that Cousin’s 

corroboration could have been weakened in the jury’s view due 

to their family ties and that it risked associating Defendant with 

Cousin’s criminal record. Thus, in the State’s view, because not 

calling Cousin was within the catalogue of objectively reasonable 

trial strategies, Attorney’s decision cannot amount to ineffective 

assistance of counsel.

¶23 However, while there may have been multiple trial 

strategies that entailed not calling Cousin as a witness for one 

reason or another, the essential issue is not whether any 

objective counsel could have reasonably decided to forgo 

Cousin’s testimony. This is because the Strickland test of 

objectively deficient performance and resulting prejudice is 

supplanted by the actual-conflict-of-interest test when 

considering a rule 23B motion based on ineffective assistance of 

counsel. See Mickens v. Taylor, 535 U.S. 162, 171–72 (2002); see also 

supra ¶ 14. It is true that “[e]ven the best criminal defense 

attorneys would not defend a particular client in the same way.” 

Strickland v. Washington, 466 U.S. 668, 689 (1984). But where one 

of the objectively reasonable defenses is foreclosed by an 

attorney’s conflict of interest, that attorney’s election to present a 

different defense may not be the result of his or her independent

determination that the different defense is truly the best for the 

defendant. Cf. Mickens, 535 U.S. at 171–72; Lafferty v. State, 2007 

UT 73, ¶ 62, 175 P.3d 530 (“[T]he relevant question is whether [a 

defendant’s] counsel was forced by his prior representation [of 

another client] to make choices that advanced [the other client’s] 

interests to [the defendant’s] detriment.”; id. (“The right to 

counsel includes the right to counsel free from conflicts of 

interest. . . . In cases where an actual detrimental conflict has 

been established, we will presume prejudice.”).
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20140967-CA 12 2017 UT App 31

¶24 The question before us is whether it is possible that this 

particular counsel elected to forgo a witness’s testimony due to a 

conflict of interest. We conclude that the possibility exists and 

that Defendant’s allegations are more than “guesswork” or a 

“fishing expedition” because he has provided “specific facts and 

details that relate to specific relevant occurrences.” See Griffin, 

2015 UT 18, ¶ 19 (citations and internal quotation marks omitted).

CONCLUSION

¶25 Defendant’s rule 23B motion is supported by affidavits 

alleging facts outside the existing record. Those facts are 

sufficiently detailed so as to be non-speculative. And, if proven, 

they may show that Attorney had a conflict of interest that

adversely affected his representation of Defendant.

¶26 Accordingly, we grant Defendant’s rule 23B motion and 

remand to the district court to conduct an evidentiary hearing. 

The district court shall 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.

¶27 Remanded.