Opinion
NO. 2015-CA-000182-MR
01-22-2016
WENDALL J. COWAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Aaron Reed Baker Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Leilani K. M. Martin Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM UNION CIRCUIT COURT
HONORABLE C. RENE' WILLIAMS, JUDGE
ACTION NO. 12-CR-00012 OPINION
AFFIRMING BEFORE: DIXON, NICKELL, AND VANMETER, JUDGES. NICKELL, JUDGE: Wendall J. Cowan appeals from the Union Circuit Court's denial of both an RCr 11.42 motion alleging ineffective assistance of counsel due to a conflict of interest, and a motion seeking additional findings of fact and reconsideration. Having reviewed the record, the briefs and the law, we affirm.
Kentucky Rules of Criminal Procedure.
FACTS
On the evening of January 17, 2012, Kentucky State Police Trooper Nathan Jenkin and two other officers went to a home on Oleary Road in Sturgis, Kentucky. The purpose of their visit was to serve two warrants on Cowan. Through prior contact with Cowan, Trooper Jenkin knew him to live with his girlfriend, LaDonna Miller (Miller), at her home on Oleary Road. Other officers also knew Cowan lived with Miller.
Upon arriving, two teenagers—a boy and a girl—were seen inside the home through a window. As the 17-year-old boy, Miller's son, answered the door saying only he and his 15-year-old sister, were at home, the girl attempted to hide a glass pipe under her sweatshirt. At about the same time, Miller entered the living room, saw the officers and announced, "the cops are here." Cowan was found in the back bedroom, partially hiding under the bed. Several drug items were seen in plain view inside the bedroom including a marijuana pipe and a hookah pipe. Cowan was taken into custody on the arrest warrants and transported to jail.
A search warrant was obtained for the home, execution of which revealed small amounts of marijuana throughout the home; between 75 and 100 items of drug paraphernalia; and four firearms, including a handgun, in a closed, but unlocked, gun safe in the hallway between the bedroom and the kitchen. Cowan's belongings were found throughout the home; his clothes were in the bedroom inside drawers and in laundry baskets. Drug-related items were found in both children's bedrooms. When the search was completed, Miller was arrested and transported to jail.
Both Cowan and Miller were charged on three counts—each on a theory of complicity—possession of marijuana; possession of drug paraphernalia; and unlawful transaction with a minor (UTWM), first degree. Cowan was charged with three additional crimes—being a convicted felon in possession of a handgun; being a convicted felon in possession of a firearm; and being a persistent felony offender in the first degree (PFO I).
Kentucky Revised Statutes (KRS) 218A.1422, a Class B misdemeanor.
KRS 218A.500(2), a Class A misdemeanor.
KRS 530.064, a Class C or D felony depending upon the minor's age. By the time of indictment, this charge had been reduced to second degree which under KRS 530.065 is a Class D felony.
KRS 527.040, a Class C felony.
KRS 527.040, a Class D felony.
Public Defender Hon. Ashley Hampton was appointed to represent both Cowan and Miller. On January 26, 2012, Cowan signed a waiver of dual representation in open court. The waiver executed by Cowan in Union District Court read as follows:
In addition to the charges accruing January 17, 2012, Hampton also represented Cowan on a fourth-degree assault charge filed against him by Miller.
There are references to both Cowan and Miller having signed a waiver, but Miller's case is not before us and no waiver signed by her is included in the appellate record provided to us.
WAIVER OF DUAL REPRESENTATION
Comes now the undersigned, Wendall Cowan,[] a defendant before this Court charged with: Poss'n Marijuana; Drug Para.; Unlawful Transaction w/Minor 1st Degree, this being the same charge(s) of a codefendant, Miller Miller, and nevertheless agrees to waive any conflict of interest and his/her right to separate counsel, and hereby agrees to allow Hon. Ashley Hampton (sic) represent him/her as attorney in the above matter. It has been explained to Cowan that:
v He/She has the right to separate counsel, which he/she is hereby giving up;
v That although there is no apparent conflict of interest between him/her and his/her codefendant, there still exists the possibility of a conflict of interest between him/her and his/her codefendant, in that what may be in his/her best interest may not be in his/her best interest, and vice versa;
v That anything he/she states to his/her attorney, Hampton, will be told to his/her codefendant, Miller, and anything he/she states to his/her attorney, Hampton, will be told to him/her;
v That he/she may get a different plea bargain offer from the Commonwealth of Kentucky which could be either better than or worse than the offer given to his/her codefendant;
v That any offer he/she receives may have a condition that he/she testify truthfully at trial, even if that truthful testimony is harmful to his/her codefendant, and that his/her offer may have the same condition;
v That in the event of an irreconcilable conflict, Hampton may have to withdraw from his/her case, or his/her codefendant's case, or both.
With that understanding, the undersigned nevertheless desires that Hampton represent him/her in this proceeding, and states that he/she has no objection to Hampton representing Miller, in Case No. 12-F-00011, hereby waiving any possible conflict of interest.At the probable cause hearing that followed that afternoon, the district court confirmed on the record both defendants had signed a dual waiver allowing Hampton to represent both "for today's purposes," and then found probable cause to refer three charges against Miller and six charges against Cowan to the Union County grand jury.
Signed in open court this 26 day of January, 2012.
Wendall Cowan
Defendant
Ashley Hampton
Assistant Public Advocate
Text in italics was handwritten on the form.
On February 13, 2012, Hampton filed a motion for discovery and a bill of particulars on Cowan's behalf. That same day, the Commonwealth responded to the motion.
A pretrial conference was to occur for both Cowan and Miller on May 1, 2012, but an attorney standing in for Hampton that day asked for a continuance due to Cowan being ill. The circuit court inquired about conflict counsel to which the defense attorney responded he had specifically discussed dual representation with both Cowan and Miller and had not been alerted to any issue requiring new appointments.
After months of plea negotiations, when the cases were called on May 14, 2012, after being passed for two weeks, Hampton stood beside Miller and requested mediation for both defendants. Cowan was not brought from the jail to the courtroom for this scheduling matter. Mediation for both defendants occurred on July 31, 2012, and resulted in a package deal Cowan and Miller accepted. The Commonwealth's offer to Cowan was a recommendation of: 45 days for marijuana possession; twelve months for possession of drug paraphernalia; five years for UTWM; ten years for being a convicted felon in possession of a handgun; the two remaining charges—being a convicted felon in possession of a firearm and PFO I—would be dismissed; all time would run concurrently for a total of ten years; and shock probation would be recommended after service of just 120 days. That same day, Cowan executed a standard motion to enter guilty plea in which he stated, "no one, including my attorney, has promised me any other benefit in return for my guilty plea nor has anyone forced or threatened me to plead 'GUILTY.' " Also included on the executed form is the following paragraph:
I declare my plea of "GUILTY" is freely, knowingly, intelligently and voluntarily made; that I have been represented by counsel; that my attorney has fully explained my constitutional rights to me, as well as the charges against me and any defenses to them; and that I understand the nature of this proceeding and all matters contained in this document.The form was signed in open court. No recording of the actual guilty plea colloquy has been provided to us. "It has long been held that, when the complete record is not before the appellate court, that court must assume that the omitted record supports the decision of the trial court." Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985) (internal citation omitted). According to the circuit court's order, Cowan's plea was "made knowingly, intelligently, and voluntarily with understanding of the nature of the charges." In light of Thompson, we have no reason to doubt that finding.
On August 22, 2012, at Cowan's request, Hampton filed a written motion asking the court to allow Cowan to withdraw his guilty plea because Cowan "would like an opportunity to personally explain to this Court why his plea of 'guilty' should be withdrawn[.]" Cowan did not tell Hampton why the motion should be filed or the guilty plea should be withdrawn. When the sentencing hearing convened on September 10, 2012, the circuit court inquired about the motion to withdraw the guilty plea. Hampton responded Cowan had decided to withdraw the motion, a fact Cowan orally confirmed in open court. Thereafter, the trial court imposed sentence in conformity with the Commonwealth's recommendation and the previously entered guilty plea. By order signed on January 4, 2013, nearly one year after the event that triggered the conviction at the heart of this appeal, Cowan was shock probated, effective January 7, 2013.
Then, on March 5, 2013, Cowan appeared before the Union Circuit Court to answer a motion to revoke probation. According to the violation of supervision report filed by Probation and Parole Officer Wade Wolfe on February 9, 2013—barely a month since his release—Cowan was arrested and lodged in the Webster County Jail on the following charges: first-degree wanton endangerment; operating on suspended/revoked operator's license; tampering with physical evidence; first-degree fleeing or evading police; reckless driving; speeding 26 mph over/greater; failure to wear seat belts; failure to or improper signal; operating motor vehicle under influence of alcohol of or above 0.08, aggravator; third-degree assault on police/probation officer; disorderly conduct and resisting arrest. During the spree that resulted in these charges, Cowan drove 85 mph in a 55 mph zone; led police on a thirty- to forty-minute pursuit during which he almost struck four vehicles head on; and, nearly struck an officer who had exited his car in an effort to stop Cowan. Following the episode, during which shots were fired at Cowan and he was pepper sprayed, he refused a blood test. Also noted on the violation report was the fact that two days later, Cowan was served a Union County warrant charging him with theft by unlawful taking or disposition-auto due to Cowan driving a stolen pickup truck during the spree. Probable cause was found on the Webster County charges.
Hampton represented Cowan on the motion to revoke. At the revocation hearing, Cowan told the trial court, "I'm obviously in over my head this time." He then acknowledged having a substance abuse problem and agreed to participate in an in-patient treatment program. The trial court expressed concern for the safety of the community and mentioned highlights of Cowan's 31-page criminal history dating back to 1991. Thereafter, the court entered an order revoking probation and re-sentencing Cowan to serve ten years.
Until that point there had been no mention of Hampton giving Miller preferential treatment during the dual representation. In fact, no claim of ineffective assistance of counsel surfaced until September 26, 2013, when Cowan filed a pro se RCr 11.42 motion alleging Hampton had "negotiated a plea deal to the advantage of her client, LaDonna Miller, Movant's Co-Defendant, to the disadvantage and at the expense of the Movant herein." Cowan also maintained had Hampton adequately investigated the charges, she would have discovered the guns were stored inside a locked gun safe; and, because Miller was also a convicted felon, she, too—not Cowan alone—should have been saddled with gun charges, especially since Cowan said he was unaware there were guns inside Miller's home. The status of the gun safe was disputed. Cowan testified Miller told him the safe was locked; however, Trooper Jenkin testified the guns were found inside a safe that was closed, but unlocked. A written police report also stated the guns were located in a gun safe. Thus, it is unclear what salient information would have been revealed by further investigation.
In the pro se memorandum he filed in support of the motion to vacate, Cowan also alleged Hampton should have investigated the age and identity of the fifteen-year-old female found in the home because no one by the name of "Cxxxxxx Miller" was in the home when police arrived and the female's age could have meant the difference in a Class C and a Class D felony. This claim was refuted by a police report listing both juveniles by name, giving their ages and identifying them as Miller's children. In the circuit court, the Commonwealth argued the motion did not contain claims on which relief could be granted, and should be evaluated in terms of whether the guilty plea was voluntary, not whether counsel was ineffective in negotiating it.
Because Miller's children were juveniles at the time of Cowan's arrest, we have omitted their names from this Opinion.
In a separate pro se motion, Cowan requested an evidentiary hearing. Despite the Commonwealth's opposition, the motion to vacate was heard on May 12, 2014. Hampton was the first witness Cowan called to testify. She stated she represented Cowan on two separate cases, and in one of the two represented Miller on similar drug charges but no gun or PFO charges. She testified the grand jury had dismissed the firearm charge against Cowan; he was charged with being a convicted felon in possession of a handgun because a handgun was found inside the gun safe; and the UTWM charge was a question of whether Cowan provided drugs or drug paraphernalia to Miller's children.
Hampton stated she did not recall the precise advice she had given Cowan on the UTWM charge, other than it would depend entirely on what the jury believed, and a jury could believe he provided items to the children. In explaining the advice she gave Cowan, she stated,
I actually never specifically said, Mr. Cowan you need to plead guilty on the charge, I never do that—that's—that's something that I feel very strongly about allowing the client to make their own decision as to whether they want to plead guilty or not. I simply give the advice as to whether—the risks of going to trial versus the benefits of going to trial. Um—ultimately, it comes down to whether Mr. Cowan wanted to plead guilty or not and it was my understanding based upon the negotiations at mediation that he wanted to enter a plea at that time.On the firearms charges, Hampton distinguished actual from constructive possession. Since the address of Miller's home did not appear on Cowan's driver's license, she told Cowan that would work in his favor; but the Commonwealth would stress his belongings were found in the home. Hampton did not recall whether she advised Cowan the Commonwealth would have to prove he knew the guns were in the home to establish possession, but testified she would have read the applicable statute to Cowan or mailed a copy of it to him.
When defense counsel inquired about the waiver of dual representation, Hampton stated Cowan and Miller were boyfriend and girlfriend at one time and both had signed a waiver. She said she is the only Public Defender practicing in Union County; she typically files the waiver of dual representation in the district court before the preliminary hearing; and it is standard practice for the district court to conduct a conflict counsel colloquy before holding the preliminary hearing. She could not recall whether such a colloquy occurred in this case.
When asked about defenses, Hampton agreed pointing the finger at Miller would have been a reasonable trial strategy for Cowan but "that never came to fruition." She agreed it probably would have been wise for him to blame Miller during the plea negotiations as well, "but he didn't," and she did not advise him to blame Miller.
In addressing the plea negotiations and the ultimate deals each accepted, Hampton confirmed Miller pled guilty to misdemeanors only. According to Hampton, Cowan never said he wanted to shoulder the bulk of the charges, only that he wanted reduced sentences for both he and Miller, and he definitely wanted nothing more than misdemeanors for Miller. Cowan never indicated Miller was not getting what he wanted for her. Hampton testified her understanding from the start was Cowan wanted the best deal for himself—which included Miller receiving nothing more than a misdemeanor conviction—and that became Hampton's goal. She did not recall Cowan ever saying the marijuana found in the home belonged to Miller.
This is the extent of our knowledge about the outcome of Miller's charges.
Hampton stated she had handled other dual representation cases. When one client points the finger at another client, she sends both cases to her manager for review. Here, neither client ever pointed the finger at the other.
If convicted as charged—which included at least one C felony and being a PFO I—Cowan would have served a minimum of ten years before becoming parole eligible. Instead, under the exceptionally generous deal Hampton negotiated, Cowan was shock probated after serving just 120 days. As the Commonwealth noted, but for Cowan acquiring new charges, he would be a free man today. Regarding the motion to withdraw the guilty plea, Hampton stated she filed it as Cowan requested, but he told her no grounds for the motion. When Cowan asked her to withdraw the motion, she did as he requested. Hampton thought she had achieved the best deal possible for Cowan.
Cowan was the only other witness during the hearing on the motion to vacate. He testified Miller was his girlfriend, but described their romance as on-again/off-again. He made the point that immediately before being arrested in Miller's home he had been jailed for thirty days due to non-payment of fines.
Cowan acknowledged signing the waiver of dual representation, but claimed he did so only because the district judge asked him to sign it so Hampton could represent him "for today's purposes"—the preliminary hearing—and did not explain to him the waiver or the dangers of dual representation. In point of fact, Cowan had already signed the conflict waiver before the district court ever questioned him about it.
During the RCr 11.42 hearing, Cowan admitted he wanted to work out a plea that helped Miller. He confirmed Hampton had told him his presence in Miller's home was enough to convict him. Cowan claimed he did not know the contents of the safe, nor whether it was locked, but Miller had told him it was locked. Cowan's simplistic view of the case against him was, "Not my house; not my weed; not my guns; not my kids." Still, he acknowledged accepting the Commonwealth's offer and pleading guilty based on Miller getting only a misdemeanor conviction and serving no additional time. He freely admitted the Commonwealth's offer was a "package deal" and if he declined, the offer to Miller would disappear.
Cowan also claimed he hesitated before entering the plea, but went forward with the deal. As he approached a table to sign the guilty plea paperwork Hampton supposedly told him, "just let me know if you change your mind about this." He then said he called Hampton about a week later saying he thought he had made a mistake and asked her to file a motion to allow him to withdraw his plea.
On cross-examination, Cowan admitted he never questioned Hampton or the court about why Hampton was representing him and Miller. He summarized the plea negotiations and mediation as a "lot of give—give by me; and a lot of take—take from me." He acknowledged his release on shock probation ended just 56 days after it began, and admitted he never told the court before pleading guilty he was dissatisfied with Hampton's advice.
In its summation, the Commonwealth argued both Cowan and Miller had received the full benefit of their mediated bargains. Further, had Cowan conformed his behavior to the terms of probation to which he had agreed, he would not have gone on a crime spree in Webster and Union Counties resulting in his shock probation being revoked a short 56 days after it began. In the prosecutor's view, Hampton represented her clients zealously and achieved everything Cowan sought for himself and Miller. In the prosecutor's words, Cowan, not Hampton, squandered the deal.
Defense counsel began his closing comments by acknowledging the probation revocation was Cowan's fault, but claimed Hampton was ineffective for giving Cowan the impression he could back out of the plea and for failing to ask each defendant whether he/she was guilty. Defense counsel also faulted the circuit court for failing to conduct an RCr 8.30 conflict colloquy. He then claimed there was an unwaivable conflict between Cowan and Miller because their only defense was to point the finger at each other. Ultimately, he asked that Cowan be returned to his pre-plea status, fully acknowledging it might result in a harsher sentence.
The trial court entered an order denying the motion to vacate on September 10, 2014, stating it had conducted a "lengthy colloquy" with Cowan during which it "questioned [him] in depth regarding the voluntariness of his plea, the waiver of his rights and the effectiveness of his counsel[,]" before finding the plea to be "voluntarily, knowingly and freely" entered. After describing Cowan as "a seasoned veteran of the court system having a criminal history dating back to 1991," finding "no substantial error was committed[,]" and Cowan "understood fully the bargain he directed his attorney to negotiate for him and he received the benefit of that bargain[,]" the court denied the motion to vacate. The court then noted Cowan had appeared in court about seven times between arraignment and sentencing, but never complained about Hampton's legal representation. The trial court found Hampton did not render ineffective assistance of counsel.
Thereafter, Cowan moved for additional findings and reconsideration claiming the court: inadequately addressed Hampton's conflict of interest from both a legal and factual standpoint; said nothing about the conflict colloquy required by RCr 8.30; impermissibly shifted the burden to Cowan; failed to discuss or apply Mitchell v. Commonwealth, 323 S.W.3d 755 (Ky. App. 2010); and, did not make a finding on whether an actual conflict existed. In response, the Commonwealth urged the trial court to overrule the motions, stating the trial court's order had covered each issue—either directly or indirectly—and Cowan had chosen to complain only in the wake of enjoying the benefit of his bargain, re-offending and having his probation revoked.
The court issued an order on January 12, 2015. Ultimately, the trial court denied the motion for additional findings, but made additional findings in doing so. It began by noting while it had not addressed Mitchell in its original order, it had considered the case. The court next found the waiver of dual representation Cowan signed alerted him to the existence of a potential conflict in Hampton's representation of him and Miller, but Cowan nonetheless chose to sign the form and proceed with Hampton as his attorney. The court then found Hampton "did not have an 'actual conflict' and she did not seek advantage for [Miller] at the expense of [Cowan]." It is from the denial of the motion to vacate and the joint motion for additional findings and reconsideration that Cowan now appeals. Having reviewed the record, the briefs and the law, we affirm.
While the motions for additional findings and reconsideration are included in the notice of appeal, they are not addressed in the appeal.
ANALYSIS
Cowan's first claim is counsel was ineffective in not fully investigating the charges and fully advising him of his defenses. He has not disclosed any fact further investigation by Hampton would have revealed; nor has he disclosed any plausible defense Hampton failed to discuss with him. For reasons that follow, we reject the claim.
To successfully claim ineffective counsel due to a conflict of interest,
"a defendant who entered a guilty plea must establish: (1) that there was an actual conflict of interest; and (2) that the conflict adversely affected the voluntary nature of the guilty plea entered by the defendant." Thomas v. Foltz, 818 F.2d 476, 480 (6th Cir.1987) (citation and footnote omitted).Mitchell, 323 S.W.3d at 760. Cowan cannot make the required two-part showing because no "actual conflict" existed between his defense and that of Miller.
While it may have been reasonable for each defendant to point the finger at the other, Hampton testified the couple never did and Cowan did not refute her words—thus, there was no actual conflict. We have "repeatedly held that failure to appoint separate counsel for codefendants is reversible error only when there is a conflict of interest between the defendants." Smith v. Commonwealth, 669 S.W.2d 527, 530 (Ky. 1984). Cowan correctly argues Mitchell is controlling, but does not require reversal because the codefendants did not assert antagonistic defenses.
Additionally, contrary to Cowan's claim, he had other defenses available to him. He could have claimed the teenagers procured the marijuana and paraphernalia from someone else entirely—perhaps a classmate. Cowan deftly persisted in denying the guns and marijuana were his, but never placed them in Miller's hands—leaving open the possibility they belonged to someone else. Importantly, there has been no suggestion Miller ever placed responsibility for any of the circumstances on Cowan.
Just as the first prong of Thomas cannot be established, neither can the second. Hampton testified Cowan's goal was to get the best deal for himself, which included nothing more than a misdemeanor conviction for Miller. That is precisely what Hampton achieved. Cowan has shown no prejudice to himself and no favoritism toward Miller other than what he personally requested on her behalf. It is disingenuous for him to now claim counsel was ineffective because she procured for him exactly what he wanted.
Due to Hampton's negotiating skills, Cowan, who faced a maximum of twenty years and a minimum of ten years in prison if convicted as charged, served only 120 days—just four months—before receiving shock probation. It is highly unlikely a seasoned criminal facing a PFO I charge would have chanced going to trial and risked a jury fixing his punishment at twenty years in prison in light of the Commonwealth's generous offer for both himself and Miller.
Based on Hampton's discussions with Cowan, he knew he could maintain he did not live in Miller's home, having recently been released from jail after serving thirty days for nonpayment of fines, but he would still have to explain why his belongings were found inside the home. Additionally, he could maintain the gun safe and its contents were not his, and even argue the safe was locked as Miller had supposedly told him, but officers who executed the search warrant would testify they removed the guns from an unlocked safe. Finally, Cowan could deny giving marijuana and paraphernalia to the two children, but jurors could easily disbelieve him. It is not Hampton's fault Cowan had few options and all of them bad.
In his brief, Cowan states his personal opinion there was "very little evidence" he had dominion and control over the guns, and only "circumstantial evidence" he gave marijuana or drug paraphernalia to the two teenagers. Were that his belief, such details were known to him during the plea negotiations which spanned several months and ultimately ended in mediation. We agree with the trial court—Hampton had no actual conflict of interest and rendered nothing but effective assistance of counsel.
Cowan next complains the circuit court failed to conduct a conflict colloquy as required by RCr 8.30, a rule addressing situations in which a single attorney represents codefendants. Dual representation is prohibited unless two things occur: the judge advises the codefendant(s) the attorney may have a conflict of interest making the course of conduct that is best for one potentially worse for the other; and, each codefendant executes and enters into the record a waiver stating despite being advised his attorney has a potential conflict of interest, he still desires to be represented by the same attorney. RCr 8.30(1)(a)-(b). The rule also imposes specific duties on defense counsel.
Upon receipt of any information reasonably suggesting that what is best for one client may not be best for another, counsel shall explain its significance to the defendant and disclose it to the court, and shall withdraw as counsel for one client or the other unless
(a) each such client who is a defendant in the proceeding executes a written waiver setting forth the circumstances and reiterating the client's desire for continued representation by the same counsel andRCr 8.30(3). Noncompliance with the rule does not automatically result in post-conviction relief.
(b) such waiver is entered in the record of the proceeding.
As noted in Kirkland [v. Commonwealth, 53 S.W.3d 71 (Ky. 2001)], failure to comply with the requirements of RCr 8.30(1) is "not presumptively prejudicial and does not warrant automatic reversal." 53 S.W.3d at 75. "A defendant must show a real conflict of interest. . . ." Id. See also [Culver v.] Sullivan, 446 U.S. 335, 100 S.Ct. 1708, [64 L.Ed.2d 333 (1980)], (a defendant must show an actual conflict of interest adversely affected the performance of his lawyer). An alleged violation of RCr 8.30 simply opens the door for a case-by-case evaluation to determine whether a defendant was in fact prejudiced by such a violation. Id.Mitchell, 323 S.W.3d at 763.
The waiver Cowan signed specifically states,
although there is no apparent conflict of interest between him/her and his/her codefendant, there still exists the possibility of a conflict of interest between him/her and his/her codefendant, in that what may be in his/her best interest may not be in his/her best interest, and vice versa;and,
in the event of an irreconcilable conflict, Hampton may have to withdraw from his/her case, or his/her codefendant's case, or both.The foregoing language, as well as the waiver in its entirety, put Cowan on notice going forward with one attorney representing himself and Miller might not be in his best interest, and might lead to appointment of different counsel as the case progressed. Nevertheless, Cowan freely chose to waive any objection and any potential conflict of interest. As the case wore on, the codefendants never implicated each other, so no conflict ever materialized and Cowan never specifies how Miller's defense may have jeopardized his case. See Bartley v. Commonwealth, 400 S.W.3d 714, 720 (Ky. 2013); Stacy v. Commonwealth, 396 S.W.3d 787, 793-94 (Ky. 2013). The most he can say is Miller was convicted of nothing more than a misdemeanor—the very outcome for which he directed Hampton to bargain.
While the written waiver Cowan signed satisfied RCr 8.30, and the district court confirmed with both Cowan and Miller they had executed waivers, it does not appear the district court personally explained to Cowan the possibility of a conflict and its ramifications before conducting the preliminary hearing. It also does not appear the circuit court engaged Cowan and Miller in such a colloquy after the indictment had been returned. However, as explained in Mitchell, such an oversight does not require automatic reversal, it merely invites deeper review. Because no real conflict of interest ever developed, there could be no prejudice justifying relief. Here, as a result of Hampton's skilled negotiating, Cowan avoided being convicted as a PFO I and served just four months of what would otherwise have been a mandatory minimum ten-year sentence. We discern no error in the trial court's denial of the motion to vacate.
Cowan's citation to Commonwealth v. Holder, 705 S.W.2d 907 (Ky. 1986), is for naught since he and Miller did not have antagonistic defenses. --------
THEREFORE, we affirm the Union Circuit Court's denial of relief.
ALL CONCUR. BRIEFS FOR APPELLANT: Aaron Reed Baker
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Leilani K. M. Martin
Assistant Attorney General
Frankfort, Kentucky