# FILED
March 31, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE FEBRUARY

2000 SESSION

MICHAEL ALLEN HA

MLIN, )

) NO. M1999-00936-CCA -R3-PC Appellant, ) ) MARSHALL COUNTY VS. ) ) HON. L. CRAIG JOHNSON, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPELLANT : HERSHELL D. KOGER 131 N. 1st Street P.O. Box 1148 Pulaski, TN 38478 FOR THE APPEL LEE : PAUL G. SUMMERS Attorney General and Repor ter MARVIN E. CL EMENTS JR. Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM MICHAEL McCOWN District Attorney General WEAKLEY E. BARNA RD Assistant

DistrictAttorney

General Marshall County Courthouse Lewisburg, TN 37091

OPINION FI LED:

AFFIRMED
JOE G. RILEY, JUDGE2 OPINION
The petitioner, Michael Al len Hamlin, appea l s the Marshall County Circuit Court's denial of his petition for pos t- conviction relief ari sing from his 1998
c on victions

for eight counts of aggravated burglary, Class C felonies. The sole issue i s w hether petitioner was depr ived of effective assistance o f counsel at the time of entry of his guilty plea, due to an alleged conf lict of interest arising from counsel’s joint representation of petiti oner and his co-defendant. Based upon our review of the record, we conclude no conflict of interest existed. Thus, the judgment of the trial court is AFFIRMED

.
I. PROCEDURAL BACKGROUND A. Guilty Plea Proceeding Trial counsel represented both petitioner an d Lisa Hamlin, petitioner’s wife, who was a co-defendant on some of the char ges against petitioner. Trial counsel
was successful in negotiating an independent plea agreement for each defendant. Under the agr eeme nt, petit ioner ple d guilt to e ight coun ts of aggra vated bur glary, Class C felonies, and received consecutive three-year sentences for each offense, foran effectiv e sentenc e of twenty-four years. Numerous other charges were dismissed pursuantto the plea agreement. Althoug h the wife’s sentence does not appear in this record, petiti oner alleges she receiv ed an eight-year sentenc e with some form of alternative sentencin g.
B. Post-Conviction Proceedings Petit io ner

timely filed a petition for post-conviction reli ef, claiming he was denied effect ive assistance of counsel in entering his guilty plea due to the conflict of interest that arose from counsel's joint representation of himself and his codefendant. At the post-convicti on heari ng, petitioner testified that he did not understand trial counsel's exp lanation of "conflict of inter es t" and claimed he was3

prejudiced by counsel's joint representation. He told the court he was concerned about his wife and was pressured into ple ading guil ty so that she might receiv e a less severe sentence.

Trial counsel testified that the res pective agreements w ere not conting en t upon each other. He st ated that he was able to adequately represent both of his clients. He told the court that he informed the two that if it became necessary to "pit
one against the other," he w ould withdraw from rep resentation of one or both defendants. He claimed the defendants assured him the y understood and insisted he continue representing both of them.

The trial court issued comprehensive written findings of fact and held there
was no conflict of interest in tr ial counsel's representation ofpetitioner and his wife. In its order the court st

ated: [T]rial counsel adequately represented both clients to the best of his ability and in their best interest , and it ap pears he k ept both clients informed at all stages

of the case...[Trial counsel] t ook great care to explain and prevent a conflict and was e ve r watchful for such a conflict. This appeal followed.

II. STANDA

RD OF REVIEW

This Court reviews a claim of ineffective assis ta nce of counsel under the standardsof Baxter v. R ose , 523 S. W.2d 930 (Tenn. 1975), and Stricklan d v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d674 (1984). The petitioner has the burden to prove that (1) the attorney’s performance w as deficient, and (2) the deficien t perform ance resu lted in pr ejudice t o the def endant s o as to dep rive him of a fair trial. Strickland , 466 U.S. at 687, 104 S.Ct. at 2064; Goad v. State , 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State , 874 S.W.2d 6, 11 (Ten n. 1994); Butler v. State , 789 S.W.2d 898, 89 9 (Tenn. 1990).4 In Hill v. Lockhar

t , 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 20 3 (1985), the SupremeCourt applied the two-part Strickland standard to ineff ective assistance of counsel claims arising out of a g uilty plea. The Court in Hill modified the prejudice requirement

by requiring a defendant to show that there is a reasonable probabi lity that, but for counsel's errors,he would not have pleaded g uilty and wou ld have insisted on going to trial. 474 U.S. at 59, 1 06 S.Ct. at 370; Hicks v. State , 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).

III. CONFLICT OF IN

TEREST

Petitioner

claims that the conflict of int er est which resulted from tr ial counsel’s dual representation of co-defendants rendered counsel’s repres entation ineffe ctive and, but for

this ineffective representation, he would not have pled guilty. In support of these allegations, petitioner relies upon Netters v. State , 957 S.W.2d 844 (Tenn. Crim. App. 1997). Petitioner argues that trial c ounsel had an “actual conflict of interest;” therefore,he is entitled to a presumpti on of prejudice.

Petitioner’s reliance on Netters is misplaced. W e conc lude there was no “actual conflict of interest” resul ting from trial counsel’ s dual representation

. The
mere fact counsel might have a potential conflict of interest in representing multiple clientsdoes not

authori ze a pre

sumptio n of ineff

ective assistance of counsel. Cuyler v. Sullivan , 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); State v. Parrott , 919 S.W.2d 60 (Tenn. Crim. App. 1995). In or der for prejudice to result, an attorney must activel

y represent conflicting

interests. Cuyler , 446 U.S. at 349-50, 100 S.Ct. at 1718-19. “The proper focus is solely upon whether counsel’s conflict affected counsel’s actions and the defendant’s decision.” Netters , 957 S.W.2d at 848.5 In Netters the trial court was faced with two defenda nts who were both represented by the public defender’s office. In finding defendant’s guilty plea was not voluntarily and kno wingl yentered due to the conflict of interest, this Court focused on the contingent nature of the co-defendants’ plea

agreements and took notice of defendant’s desire to go to trial versu s the co-defendant’s desire to enter
a guilty plea. The

Court found counsel applied inappropriate pres sure to defendant in order toprotect the interest of the co-defendant. It was further undisputed that defendant entered his guilty plea after havingbeen a dvised by counsel w ith a conflict of interest. Netters , 957 S.W.2d at 848.

The circumstances surroundi ng trial counsel’s r epresentation and the petitioner’s guilty plea in the instant case are quite different. In its denial of postconviction relief, the trial court found that not only was petitioner adequately informed of the potenti al for conflict, but he insisted that dual representation continue.

At the arraignment, the judge informed the two defendants that they had the right to choose any counsel they wished to represent them, but thatthey should be
aware that dual representation coul d pose a potential conflict of i nterest. Both defendants then stated that they understo od the potential for conflict and wished to proceed with trial c

ounsel's representation.

Neither defendant expressed a desire to proceed to tr ial. Therefore, trial counsel effectively negotiated with t he District Attorn ey’s office to a rrange independentplea agreements for each defendant. The pleas were not contingent
on the acceptanc e of both def endants. Any de cision to plead gu ilty in the hopes that his wife would receive a reduced sentence was made at the sole discretion of the defendant and without any pressure or

agreement by trial counsel, the District Attorney or the trial court. F urth er more, petitioner testified at the post-conviction hearing that he knew he was going to prison and want ed trial counsel to

handle both6

cases. In its findings of fact the trial court concluded “it is apparent from the proof in the record that Mr. Hamlin was well in forme d of his rights as a defendant, and that he desired [trial counsel] to handle his case th e way it wa s handled.” The evidence clearly s upports this finding.

IV. CONCLUSION

We find that nothing trial counsel did or failed to do wit h respect to either defendant affected petitioner’s decision t o plea d guilty. Petitioner failed to demonstrate there were inconsist ent interests at stake a nd did notshow trial counsel made a ch oice betwe en possib le altern ative courses of action that prov ed harmful to him. Thomas v. Foltz , 818 F.2d 476, 481 (6 th Cir.) cert. denied 484 U.S. 870, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987). We find there was no “ac tual conflict” in counsel’s representation of petitioner and the co-defendant. Therefore, petitioner is not entitled to

any presumption of prejudice with respect to ineffective assistance of counsel. Nor

has petitioner established that he was prejudiced by counsel’s joint representation.
Finding no other allegation to support petitioner’s c ontent ion that his guilty plea was the result of

ineffe ctive assistance of counsel, we AFFIRM the judgment of the trial court.

__________________________ JOE G. RILEY, JUDGE

CONCUR:

________________________________ THOMAS T. WOOD

ALL, JUDGE

________________________________ JAMES CURWOOD

WITT, JR., JUDGE