The Colorado Court of Appeals issued its opinion in People v. Delgadillo on March 1, 2012.
Sixth Amendment—Conflict of Interest—Attorney-Client Privilege.
Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of first-degree sexual assault and two counts of contributing to the delinquency of a minor. The judgment was reversed, the sentence was vacated, and the case was remanded for further proceedings.
Defendant took the stand at trial to testify in his own defense. Defendant testified that his counsel advised him that he would receive a sentence of twenty-five to thirty years, if found guilty. Outside the presence of the jury, defendant’s counsel testified in camera regarding his communications with defendant regarding the potential sentence, and defendant indicated that he would have taken the plea bargain instead of proceeding to trial if he had been told that the actual range was four to sixteen years if the sentences were to run concurrently. The case proceeded, and defendant was found guilty.
Defendant contended his Sixth Amendment right to conflict-free counsel was violated when the court swore in his trial counsel and permitted counsel to testify about communications he had with defendant about the ongoing representation. No one asked defendant whether he would waive the attorney–client privilege to allow his counsel to testify, or explained what the consequences might be if defense counsel testified inconsistently with defendant’s trial testimony. The record reflects defense counsel’s inherent conflict in simultaneously trying to respond to questioning from the court and the prosecutor, to justify his earlier advice to defendant, and to remain a zealous advocate on behalf of his client. In the circumstances presented here, including defense counsel’s disclosures of attorney–client privileged information, defense strategy, and the specter of an ineffective assistance claim, there was an actual conflict of interest that deprived defendant of conflict-free representation. Accordingly, the judgment was reversed, the sentence was vacated, and the case was remanded for a new trial.