State v. Galaviz

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

Nos. 101,084
101,085

STATE OF KANSAS,
Appellee,

v.

JOSE GALAVIZ,
Appellant.


SYLLABUS BY THE COURT


1.
A Kansas criminal defendant has a constitutional right to effective assistance of
counsel in a probation revocation proceeding under the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. This right includes the right to
conflict-free counsel.

2.
Under Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291, reh.
denied 535 U.S. 1074 (2002), when a criminal defendant or his or her attorney voices a
timely objection to the attorney's concurrent representation of multiple clients with
antagonistic interests and the district court fails to investigate the conflict, prejudice is
presumed and reversal is automatic.

3.
Under Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291, reh.
denied 535 U.S. 1074 (2002), when a criminal defendant's attorney concurrently
represents multiple clients with antagonistic interests but there was no objection to the
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conflict of interest before or during the district court proceeding, a defendant must
demonstrate in a postconviction proceeding that the conflict of interest adversely affected
the adequacy of the attorney's representation.

4.
The United States Supreme Court has not defined a criminal defendant's burden
for establishing a basis to reverse a district court's order in a proceeding where it is
alleged the defendant's attorney was ineffective because of a conflict of interest that is
rooted in the attorney's obligations to a former client or in the attorney's personal or
financial interests.

5.
Under Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291, reh.
denied 535 U.S. 1074 (2002), a district court has a duty to inquire when there is an
objection to an attorney's concurrent representation of multiple clients with antagonistic
interests, and a failure to perform that duty of inquiry requires automatic reversal.

6.
Under Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291, reh.
denied 535 U.S. 1074 (2002), even if there is no objection to an attorney's representation
of multiple clients with antagonistic interests, a trial court has a duty to conduct a sua
sponte inquiry where the court knows or reasonably should know that a particular conflict
exists. Even if the trial court fails to perform this duty, a defendant must demonstrate that
a conflict of interest adversely affected the adequacy of the attorney's representation.

7.
Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291, reh. denied
535 U.S. 1074 (2002), effectively overrules portions of this court's decision in State v.
Jenkins, 257 Kan. 1074, 898 P.2d 1121 (1995).
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8.
A criminal defendant is not entitled to automatic reversal of a district court's order
to revoke probation where the defendant's attorney had served as the guardian ad litem
for the victim of the defendant's crime if a timely objection to the multiple
representations was not made before or during the proceeding. On appeal, the defendant,
at a minimum, must show that the conflict of interest had an adverse effect on the
attorney's representation.

9.
When an ineffective assistance of counsel claim is asserted for the first time on
appeal, the factual aspects of a claim of ineffective assistance of counsel generally require
that the matter be resolved through an action under K.S.A. 60-1507 or through a request
for an appellate court to remand the issue to the district court for an evidentiary hearing
under State v. Van Cleave, 239 Kan. 117, 119-21, 716 P.2d 580 (1986).

Review of the judgment of the Court of Appeals in an unpublished decision filed December 31,
2009. Appeal from Ford District Court; E. LEIGH HOOD, judge. Opinion filed December 28, 2012.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is
reversed and remanded with directions.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, argued the cause, and Carl
Folsom, III, of the same office, was on the brief for appellant.

Terry J. Malone, county attorney, argued the cause, and David Belling, deputy county attorney,
and Steve Six, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: In this appeal involving a probation revocation, Jose Galaviz argues
his attorney's position as the guardian ad litem for the victim of one of Galaviz' crimes
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created a per se conflict of interest that denied Galaviz his right to effective assistance of
counsel at his probation revocation proceeding. Galaviz, citing State v. Jenkins, 257 Kan.
1074, 898 P.2d 1121 (1995), argues this conflict so offended his rights as guaranteed by
the Sixth Amendment to the United States Constitution that reversal is automatic and he
is not required to show that the conflict had an adverse effect on his attorney's
representation.

The Court of Appeals rejected this argument. Relying on the United States
Supreme Court's decision of Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L.
Ed. 2d 291, reh. denied 535 U.S. 1074 (2002), the Court of Appeals held Galaviz had to
show the multiple representation had an adverse effect on the attorney's representation of
Galaviz because Galaviz did not object to the multiple representation. Further, the Court
of Appeals concluded Galaviz did not meet his burden and was not entitled to relief. See
State v. Galaviz, Nos. 101,084 and 101,085, 2009 WL 5206238, at *3-4 (Kan. App.
2009) (unpublished opinion).

In his petition seeking this court's review of the Court of Appeals' decision,
Galaviz argues the Court of Appeals erred in not following Jenkins. To analyze that
argument, we compare Mickens and Jenkins, both of which apply the Sixth Amendment,
and conclude the United States Supreme Court's analysis controls and that Mickens
effectively overrules portions of Jenkins. Under Mickens, a defendant is not entitled to
automatic reversal based on the defense attorney's conflict of interest if there was no
timely objection to the attorney's representation. Rather, as the Court of Appeals
concluded, Galaviz must establish that the conflict of interest had an adverse effect on his
attorney's representation of him. Nevertheless, we disagree with the Court of Appeals'
conclusion that this determination can be made on the record on appeal. We conclude a
remand is appropriate to determine whether Galaviz can meet his burden under Mickens.


5

FACTUAL AND PROCEDURAL BACKGROUND

This appeal follows a district court's decision to revoke Galaviz' probation in two
cases. In one of the cases, Galaviz had pleaded guilty to a charge of aggravated indecent
liberties with a child under the age of 14. In the second case, he had pleaded guilty to
possession of methamphetamine. At the time of the original sentencing, the State,
consistent with its plea agreement with Galaviz, recommended a downward dispositional
departure from a presumptive prison sentence to probation. The court accepted the
parties' sentencing recommendation and placed Galaviz on probation.

Fifteen months later, a probation revocation proceeding was initiated. The court
appointed Mark Cowell to represent Galaviz. Initially, Galaviz denied the State's
allegations. Before the evidentiary hearing was held, Galaviz was found guilty of new
offenses, and the State amended its motion to revoke probation by adding the new
convictions as additional probation violations. Galaviz then admitted he had violated
conditions of his probation, and the court revoked probation.

At the subsequent disposition hearing, Cowell, on Galaviz' behalf, urged the court
to reinstate probation, arguing in part:

"Now, Your Honor, I was not the attorney who represented Mr. Galaviz in [the
aggravated indecent liberties] case and I think that's specifically because I was the
guardian ad litem of the child who—or the young lady who was the victim, and as it
turned out, this young lady—I did notice something about her. I'm not trying to say that it
is appropriate ever to have contact with a young lady, but she certainly was among the
more willing young ladies."

In addition, Cowell argued that Galaviz had attended sexual offender treatment,
completed community service, completed a substance abuse program, and remained drug
free. Cowell also noted that Galaviz had a job if he was released from jail.
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The district court rejected Galaviz' request to be reinstated to probation, citing
Galaviz' extensive criminal history. The court remanded Galaviz to the Kansas
Department of Corrections to serve the prison sentences that had been announced at the
original sentencing hearings in the two cases.

Regarding the record relating to Cowell's conflict of interest, Cowell's brief
reference to his role as the guardian ad litem for the victim in the aggravated indecent
liberties case was the first and only reference in the record to the circumstances that gave
rise to Galaviz' conflict of interest argument. Neither Cowell nor Galaviz objected, and
the district court did not make any inquiry. Thus, as the State argues, there is no
information in the record regarding the type of proceeding that led to Cowell's
appointment as the victim's guardian ad litem; the date on which Cowell was appointed to
serve as the guardian ad litem; the date, if any, on which Cowell's obligations as guardian
ad litem terminated; or the relationship, if any, between the two proceedings.

Court of Appeals' Decision

Galaviz appealed the district court's decision to revoke his probation and, for the
first time, argued that Cowell had a conflict of interest that required reversing the
decisions to revoke probation and to sentence Galaviz to prison. Although Galaviz did
not object to Cowell's representation during the district court proceeding, in his
arguments to the Court of Appeals he claimed the facts contained in the record were
sufficient for an appellate court to resolve the issue. As we have noted, Galaviz relied on
Jenkins, 257 Kan. 1074, to support his argument that he only needed to show there was
an active conflict the district court knew or should have known about and the district
court failed to inquire into the conflict. Alternatively, Galaviz claimed there was evidence
that the conflict of interest had an adverse effect on Cowell's performance.

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The Court of Appeals rejected Galaviz' arguments and affirmed the district court.
The appellate court recognized that Galaviz had a right to effective assistance of counsel
in his probation revocation proceeding, which means he had a right to representation free
from conflicts of interest. Galaviz, 2009 WL 5206238, at *2. To show there was a
violation of this right, the Court of Appeals applied a two-step process.

First, citing Mickens, 535 U.S. 162, the Court of Appeals required Galaviz to show
that Cowell "actively represented conflicting interests." Galaviz, 2009 WL 5206238, at
*2. In making this determination, the Court of Appeals examined "the ethics rules that
govern lawyer conduct [and] provide that a lawyer may not undertake a representation
that involves a concurrent conflict of interest." Galaviz, 2009 WL 5206238, at *2-3
(citing Kansas Rules of Professional Conduct [KRPC] 1.3 [2009 Kan. Ct. R. Annot. 426]
[diligence]; KRPC 1.7 [2009 Kan. Ct. R. Annot. 472] [conflict of interest; current
clients], and KRPC 1.9 [2009 Kan. Ct. R. Annot. 490] [conflict of interest; duties to
former clients]). These rules established that Cowell had conflicting concurrent duties to
the victim and Galaviz, meaning Galaviz had met his burden of establishing an active
conflict. See Galaviz, 2009 WL 5206238, at *2-3.

This, the Court of Appeals concluded, meant the district court had a duty to
inquire into the conflict of interest and abused its discretion by failing to do so.
Nevertheless, this failure did not mandate reversal because, under Mickens, there was no
objection to Cowell's representation and "reversal is automatic 'only where defense
counsel is forced to represent codefendants over his timely objection.'" Galaviz, 2009 WL
5206238, at *3 (quoting Mickens, 535 U.S. at 168). If there was no objection, according
to the Court of Appeals, "a defendant must show that the conflict of interest adversely
affected his or her counsel's performance before reversal is appropriate." Galaviz, 2009
WL 5206238, at *3 (citing Mickens, 535 U.S. at 174, and State v. Carter, 284 Kan. 312,
321, 160 P.3d 457 [2007]).

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Hence, the Court of Appeals applied the second step of requiring Galaviz to
establish that the conflict had an adverse effect on Cowell's performance. After
examining the record of the probation revocation proceeding and determining there was a
sufficient record for making the evaluation, the Court of Appeals concluded the conflict
did not adversely affect Cowell's performance. In fact, according to the Court of Appeals,
Cowell's actions supported, rather than undermined, Galaviz' request to remain on
probation. Thus, the Court of Appeals affirmed the district court's decision to revoke
probation and sentence Galaviz to prison. Galaviz, 2009 WL 5206238, at *4.

Galaviz filed a petition for review, which this court granted. We have jurisdiction
under K.S.A. 20-3018(b) and K.S.A. 22-3602(e).

ANALYSIS

As noted, Galaviz asserts his right to effective assistance of counsel as guaranteed
by the Sixth Amendment to the United States Constitution. The Sixth Amendment
provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence." This right, made applicable to the states
through the Fourteenth Amendment to the United States Constitution, requires more than
the presence of an attorney; it guarantees the right to effective assistance from the
attorney. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674,
reh. denied 467 U.S. 1267 (1984); Avery v. Alabama, 308 U.S. 444, 446, 60 S. Ct. 321,
84 L. Ed. 377 (1940); Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009). The
purpose of the effective assistance guarantee "is simply to ensure that criminal defendants
receive a fair trial." Strickland, 466 U.S. at 689. To fulfill this function, "counsel owes
the client a duty of loyalty, a duty to avoid conflicts of interest." Strickland, 466 U.S. at
688; see Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981)
(criminal defendant has constitutional right to "representation that is free from conflicts
of interest").
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The Sixth Amendment right to counsel attaches on the filing of formal charges or
following arraignment when a person is arrested pursuant to a warrant. See Brewer v.
Williams, 430 U.S. 387, 398, 97 S. Ct. 1232, 51 L. Ed. 2d 424, reh. denied 431 U.S. 925
(1977); State v. Appleby, 289 Kan. 1017, 1044, 221 P.3d 525 (2009). However, probation
revocation proceedings are not considered a part of a criminal prosecution and, therefore,
not all constitutional trial rights apply. See Gagnon v. Scarpelli, 411 U.S. 778, 786-87, 93
S. Ct. 1756, 36 L. Ed. 2d 656 (1973). Thus, a threshold question in this case is whether
Galaviz is justified in relying on his rights under the Sixth Amendment.
The parties have not discussed this threshold issue; Galaviz simply asserted his
Sixth Amendment right to conflict-free counsel without citing any authority establishing
that the right applies to Galaviz' probation revocation proceeding, and the State did not
contest his assertion. The Court of Appeals, without referring specifically to the Sixth
Amendment, stated: "A defendant has a constitutional right to be represented by counsel
in probation-revocation hearings." Galaviz, 2009 WL 5206238, at *2. Even though the
question of whether the Sixth Amendment applies was not made an issue by the parties,
we begin our analysis with this threshold question because ignoring the question might
cause confusion in future cases, this court has not previously decided the issue, and its
outcome can dictate whether Galaviz can make his ineffective assistance of counsel
claim.
Sixth Amendment and Probation Revocation Proceedings

For its part, the Court of Appeals in concluding there was a constitutional right to
counsel in probation revocation proceedings cited State v. Billings, 30 Kan. App. 2d 236,
238, 39 P.3d 682 (2002). Galaviz, 2009 WL 5206238, at *2. In Billings, a panel of the
Court of Appeals pointed out that "[t]he Supreme Court of the United States has
determined that revocation of probation is not part of a criminal prosecution and,
therefore, the full panoply of rights due a defendant in a criminal case is not applicable to
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a probation revocation proceeding." Billings, 30 Kan. App. 2d at 238 (citing Gagnon, 411
U.S. at 786, and Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 33 L. Ed. 2d
484 [1972]). The Billings court then listed several rights that do apply, including the right
to the assistance of counsel. Billings, 30 Kan. App. 2d at 238. To support this
unequivocal statement of the right to counsel, the Billings court cited Black v. Romano,
471 U.S. 606, 612, 105 S. Ct. 2254, 85 L. Ed. 2d 636 (1985).

The United States Supreme Court was not this absolute in Black, however, stating
that a "probationer has a right to the assistance of counsel in some circumstances."
(Emphasis added.) Black, 471 U.S. at 612 (citing Gagnon, 411 U.S. at 790). Although the
Black Court did not expand on the circumstances in which the right would attach, the
Court had engaged in a more extensive discussion of the circumstances in Gagnon.
There, the Supreme Court held that right to counsel in a probation revocation proceeding
arises from the Due Process Clause of the Fourteenth Amendment rather than the Sixth
Amendment and "that the decision as to the need for counsel must be made on a case-by-
case basis in the exercise of a sound discretion by the state authority charged with
responsibility for administering the probation and parole system." Gagnon, 411 U.S. at
789-90.

In Kansas, the legislature disposed of the need for this case-by-case determination
by enacting a right to counsel when a defendant is arrested for an alleged probation
violation. As codified at K.S.A. 22-3716(b), which deals generally with the procedures
for probation revocation proceedings, the legislature provided an unqualified right,
stating the defendant "shall have the right to be represented by counsel and shall be
informed by the judge that, if the defendant is financially unable to obtain counsel, an
attorney will be appointed to represent the defendant." Hence, under Gagnon, a defendant
in Kansas, including Galaviz, who is alleged to have violated the terms and conditions of
probation has a due process right to effective assistance of counsel, which means conflict-
free counsel.
11


Without recognizing that Galaviz' right to conflict-free counsel does not arise from
the Sixth Amendment, Galaviz cites to and relies on cases applying the Sixth
Amendment's guarantee of effective assistance of counsel. See Jenkins, 257 Kan. 1074.
He does not cite a state law basis. Nevertheless, Galaviz' reliance is partially justified by
the United States Supreme Court's decision in Wood, 450 U.S. 261.

In Wood, the United States Supreme Court considered the right to counsel in the
context of probation revocation proceedings arising after two probationers failed to pay
their fines in a case where they were found guilty of distributing obscene materials by
selling products at their place of employment. They were represented by a single attorney
who was paid for by their employer; the attorney also represented the employer. The
Court concluded that under Georgia law a defendant facing a parole or probation
revocation had a right to counsel under the Due Process Clause of the Fourteenth
Amendment. Wood, 450 U.S. at 271 (citing Gagnon, recognizing right to counsel under
Georgia statute, and also observing revocation proceeding was complex and difficult to
develop and present). The Wood Court then stated: "Where a constitutional right to
counsel exists, our Sixth Amendment cases hold that there is a correlative right to
representation that is free from conflicts of interest." Wood, 450 U.S. at 271. In
considering whether the probationers' right to effective assistance of counsel may have
been violated, the Wood Court discussed and relied on two Sixth Amendment right to
counsel decisions that form the basis for the Court's later decision in Mickens—Cuyler v.
Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980), and Holloway v.
Arkansas, 435 U.S. 475, 481, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978).

Likewise, in other postconviction situations, this court has recognized that even
though a defendant did not have a Sixth Amendment right to counsel, when there is a
statutory right to the appointment of counsel, the appointed attorney "'must be effective
and competent. Otherwise, the appointment is a useless formality.'" Brown v. State, 278
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Kan. 481, 484, 101 P.3d 1201 (2004) (quoting Cullins v. Crouse, 348 F.2d 887, 889 [10th
Cir. 1965]). Hence, this court has recognized a criminal defendant could obtain a remedy
pursuant to K.S.A. 60-1507 for a claim of ineffective assistance of counsel in a civil
postconviction proceeding. Brown, 278 Kan. at 484.

These authorities lead us to conclude a Kansas criminal defendant has a
constitutional right to effective assistance of counsel in a probation revocation proceeding
under the Due Process Clause of the Fourteenth Amendment to the United States
Constitution. This right includes the right to conflict-free counsel. Even though the source
of this right is not the Sixth Amendment to the United States Constitution, cases applying
the effective assistance of counsel guarantee of the Sixth Amendment can be used to
analyze Fourteenth Amendment ineffective assistance of counsel claims because the
governing principles and policies are coextensive. Consequently, Galaviz was justified in
relying on Sixth Amendment cases. Hence, although we consider Galaviz' right to
conflict-free counsel to arise under the Fourteenth Amendment rather than the Sixth
Amendment, we conclude he is entitled to relief if he can meet his burden.

Galaviz' Burden: Step One—Is There An Active Conflict of Interest?

Regarding that burden, as we have noted, Galaviz' primary argument in his
petition for review is that the Court of Appeals, in rejecting his claim, erred by failing to
apply this court's decision in Jenkins, 257 Kan. 1074. This court held, in part:

"[W]here the trial court was on notice that defense counsel represented the defendant and
the key prosecution witness against the defendant, and was on notice that the defendant
had not waived this conflict of interest, the trial court had an independent duty to inquire
about the conflict. Failure of the trial court to inquire under these circumstances requires
reversal of the defendant's convictions. Under these circumstances, prejudice to the
defendant is presumed." Jenkins, 257 Kan. 1074, Syl. ¶ 6.

13

Under this holding, Galaviz argues he is not required to establish that Cowell's
representation was adversely affected by the conflict as required by the Court of Appeals.
Rather, according to Galaviz, he need only establish there was a conflict of interest, the
district court was aware of the conflict, and the court failed to inquire regarding the
conflict.

The State insists that there is not an active conflict of interest, primarily because
the victim did not testify and because the record does not establish concurrent
representation or reveal what information, if any, Cowell may have learned about the
crime from the victim. This argument ignores the fact that the record indicates Cowell
revealed information about the victim gained from his representation as her guardian ad
litem when he told the court he had "noticed[d] something about her. . . . [S]he certainly
was among the more willing young ladies."

Further, although the State is correct that the record does not establish whether
Cowell's representation as a guardian ad litem had terminated before Galaviz' probation
revocation proceeding, attorneys owe ethical obligations to both former and current
clients and an obligation to avoid representing clients where there is a conflict of interest
with either former or current clients. See KRPC 1.7(a) (2011 Kan. Ct. R. Annot. 484)
(conflict of interest; current clients); KRPC 1.9(a) (2011 Kan. Ct. R. Annot. 502)
(conflict of interest; duties to former clients). While there are unique considerations that
arise because Cowell acted as the victim's guardian ad litem, neither party discusses the
potential implications.

Nevertheless, the Court of Appeals found that these duties established a conflict of
interest, stating:

"[I]t takes little effort to envision substantial, potential conflicts of interest—Cowell had
to have learned some confidential information during his representation of the victim.
14

Absent the victim's informed consent in writing, Cowell had a duty to keep that
information to himself, but he also had a duty to locate any information that could help
Galaviz.
"Even after Galaviz admitted violating his probation, the district court still
retained discretion to decide whether to revoke Galaviz' probation or to give him another
chance at probation. [Citation omitted.] Thus, Cowell needed to paint Galaviz in the best
possible light as the district court decided whether to give him another chance at
probation or send him to prison. Cowell's responsibilities to both the victim and the
offender of the same crime created a substantial risk that his ability to represent Galaviz
in the probation-revocation proceedings would be materially limited by his continuing
responsibilities to the victim." Galaviz, 2009 WL 5206238, at *2.

We agree with the Court of Appeal's analysis on this point.

Step Two: Does the Conflict Require Reversal?

Given the conclusion that there was an active conflict of interest arising from
Cowell's multiple representation of the victim and Galaviz, we are back to Galaviz'
argument that automatic reversal is mandated by this court's decision in State v. Jenkins,
257 Kan. 1074, 898 P.2d 1121 (1995). This leads us to the critical question in this appeal
of whether Jenkins remains valid in light of subsequent decisions of the United States
Supreme Court, including Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed.
2d 291, reh. denied 535 U.S. 1074 (2002), which was decided by the United States
Supreme Court approximately 7 years after Jenkins. While the Court of Appeals cited
Jenkins, it did not discuss its holdings or facts or determine if it was consistent with
Mickens.

The possibility that Mickens overruled Jenkins arises because the United States
Supreme Court's decisions control the application of the United States Constitution and
Jenkins was decided based on the right to effective assistance of counsel as guaranteed by
15

the Sixth Amendment to the United States Constitution and not on Kansas law. See State
v. Scott, 286 Kan. 54, 91, 183 P.3d 801 (2008) (Under Article VI of the United States
Constitution, "'the interpretation placed on the Constitution and laws of the United States
by the decisions of the United States Supreme Court is controlling upon state courts and
must be followed.'"); Jenkins, 257 Kan. at 1075 (Jenkins "argued before the Court of
Appeals that his Sixth Amendment right to effective assistance of counsel was violated
because of his trial counsel's conflict of interest.).

Hence, Jenkins must be read in harmony with Mickens and other decisions of the
United States Supreme Court. Consequently, we will discuss Mickens and Jenkins,
reconcile them, and apply that reconciliation to the facts of this case.

Mickens v. Taylor

In Mickens, the United States Supreme Court answered the question of "what a
defendant must show in order to demonstrate a Sixth Amendment violation where the
trial court fails to inquire into a potential conflict of interest about which it knew or
reasonably should have known." Mickens, 535 U.S. at 164. The issue arose several years
after Mickens had been convicted of capital murder when, during a postconviction habeas
proceeding, Mickens first learned his trial attorney had also represented the murder
victim in a criminal case that was pending at the time Mickens allegedly murdered the
victim.

The facts of the multiple representation were then discovered. The victim was
charged with a crime and had a pending criminal case at the time he was murdered. Upon
the victim's death, a judge entered an order dismissing the charges against the victim. The
next business day, the same judge appointed an attorney to represent Mickens. The
appointed attorney was the same attorney who had been representing the victim in his
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criminal matter. The attorney did not disclose to the court, his cocounsel, or Mickens that
he had been representing the victim at the time of the murder.

In defining Mickens' burden in light of those facts, the Supreme Court
distinguished three categories of ineffective assistance of counsel claims under the Sixth
Amendment. The first category includes cases in which it is claimed that the attorney's
performance was so deficient that the defendant was denied a fair trial. The second
category applies when the assistance of counsel was denied entirely or denied at a critical
stage of the proceeding. The third category includes situations where the defendant's
attorney "actively represented conflicting interests." Mickens, 535 U.S. at 166.

Regarding the first category of an attorney's deficient performance, the Mickens
Court explained that the test for establishing a Sixth Amendment violation was defined in
Strickland, 466 U.S. at 687. The Mickens Court referred to this standard as the "general
rule" and explained that a defendant has the burden to establish (1) the attorney's
performance was deficient and (2) "'a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.'" Mickens,
535 U.S. at 166 (quoting Strickland, 466 U.S. at 694); see State v. Gleason, 277 Kan.
624, 643-44, 88 P.3d 218 (2004).

The second category creates an "exception to this general rule," known as the
Cronic exception, because the complete denial of the assistance of counsel or the denial
of counsel at a critical stage of a proceeding presents "'circumstances of [such]
magnitude'" that "the likelihood that the verdict is unreliable is so high that a case-by-
case inquiry is unnecessary." Mickens, 535 U.S. at 166 (citing United States v. Cronic,
466 U.S. 648, 658-59, 104 S. Ct. 2039, 80 L. Ed. 2d 657 [1984]). Given these exceptional
circumstances, a defendant is "spared . . . the need of showing probable effect upon the
outcome." Mickens, 535 U.S. at 166. Instead, a court can presume prejudice. Mickens,
17

535 U.S. at 166 (citing Cronic, 466 U.S. at 658-59); see, e.g., Edgar v. State, 294 Kan.
828, 839-43, 283 P.3d 152 (2012) (discussing the Cronic exception).

The third category—where the defendant's attorney actively represented
conflicting interests—is more nuanced. The Mickens Court recognized that when a
defendant's attorney actively represents conflicting interests there "may" be
"'circumstances of [such] magnitude'" that the "likelihood that the verdict is unreliable is
so high that a case-by-case inquiry is unnecessary." Mickens, 535 U.S. at 166 (citing
Cronic, 466 U.S. at 658-59). In determining when such a circumstance exists, the Court
separated conflict cases into three subcategories. All three conflict-of-interest
subcategories share a starting point—the defendant must establish that his or her attorney
had an active conflict of interest. Beyond that, there are distinguishing points.

The first distinction relates to the temporal relationship of the multiple
representations. The first two subcategories arise where the multiple representations are
concurrent. The third arises if the multiple representations are successive or if the conflict
arises because of the attorney's personal or business interests. See Mickens, 535 U.S. at
167-76; Moss v. United States, 323 F.3d 445, 455 n.15, 459 (6th Cir.) (distinguishing
between multiple concurrent representation and successive representation; multiple
concurrent representation includes representation that is "joint and dual," which refers "to
simultaneous representation occurring in the same proceeding" and "multiple
representation," which "refers to simultaneous representation in separate proceedings";
"[s]uccesive representation occurs where defense counsel has previously represented a
co-defendant or trial witness"), cert. denied 540 U.S. 879 (2003).

A second distinction between the subcategories depends on whether an objection
to the multiple representations is made before or during the proceeding. See Mickens, 535
U.S. at 168-69. Closely related are distinctions regarding the district court's burden of
inquiry in each circumstance. See Mickens, 535 U.S. at 173-76.
18


Recognizing these distinctions and placing a case in the appropriate subcategory is
essential to the determination of the test to be applied. See Mickens, 535 U.S. at 167-76.
As we further explain these distinctions and the applicable tests, we will refer to the first
of these subclassifications as the automatic reversal exception, the second as the adverse
effect exception, and the third as the Mickens reservation.

The automatic reversal exception derives from Holloway, 435 U.S. at 475. It
applies when a criminal defendant or his or her attorney voices a timely objection to the
multiple concurrent representations of clients with antagonistic interests and the district
court fails to investigate the conflict. Mickens, 535 U.S. at 168 (citing Holloway, 435
U.S. at 488). Itemizing these requirements, there are three characteristics that cases in this
automatic reversal category must have: (1) multiple concurrent representation; (2) a
timely objection, meaning an objection before or during the proceeding; and (3) a failure
of the district court to inquire and determine there is no conflict, Mickens, 535 U.S. at 168
(quoting Holloway, 435 U.S. at 488, for its holding that "whenever a trial court
improperly requires joint representation over timely objection reversal is automatic").

When these three characteristics are present, according to the Mickens Court, a
presumption of prejudice is warranted because the situation is "inherently suspect, and
because counsel's conflicting obligations to multiple defendants 'effectively sea[ls] his
lips on crucial matters' and make[s] it difficult to measure the precise harm arising from
counsel's errors." Mickens, 535 U.S. at 168 (quoting Holloway, 435 U.S. at 489-90).
Also, "[j]oint representation of conflicting interests is suspect because of what it tends to
prevent the attorney from doing." Holloway, 435 U.S. at 489-90. The record in joint
representation cases will ordinarily not memorialize mistakes of omission as it does
affirmative instances of trial error, so for a court to evaluate the existence and effect of
such mistakes of omission would entail "unguided speculation." Holloway, 435 U.S. at
490-91. Consequently, as when the Cronic exception applies, reversal is automatic unless
19

the district court has determined there is no conflict. Mickens, 535 U.S. at 168 (citing
Holloway, 435 U.S. at 488); see Gleason, 277 Kan. at 650.

The second subcategory, which derives from Cuyler, is the adverse effect
exception. This exception applies when there is (1) an active conflict of interest because
of concurrent representation of codefendants but (2) there was no objection to the conflict
of interest before or during the proceeding. In such a situation, "a defendant must
demonstrate that 'a conflict of interest actually affected the adequacy of his
representation.'" Mickens, 535 U.S. at 168 (quoting Cuyler, 446 U.S. at 348-49); see
Gleason, 277 Kan. at 650. The Mickens Court took care to differentiate the burden under
the adverse effect exception from the Strickland test, indicating under the adverse effect
exception "prejudice will be presumed only if the conflict has significantly affected
counsel's performance—thereby rendering the verdict unreliable, even though Strickland
prejudice cannot be shown." Mickens, 535 U.S. at 172-73. Later in the opinion, the
Mickens Court reiterated that a defendant's burden does not rise to the level of the
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied
467 U.S. 1267 (1984), test that requires "a showing of probable effect upon the outcome
of the trial." Mickens, 535 U.S. at 174.

The third subcategory of cases, the Mickens reservation, arises in situations where
a conflict is "rooted in counsel's obligations to former clients" or "counsel's personal or
financial interests." Mickens, 535 U.S. at 174. We refer to this subcategory as the
Mickens reservation because, although the Court recognized the potential conflicts in
such situations, it reserved for another case the consideration of a test to be applied to
determine if a defendant is entitled to relief. The Court stated that whether the adverse
effect exception stated in Cuyler "should be extended to such cases remains, as far as the
jurisprudence of this Court is concerned, an open question." Mickens, 535 U.S. at 176. In
place of the adverse effect exception, the Court indicated the Strickland test might apply.
Mickens, 535 U.S. at 176.
20


The fact that successive representation or personal interests in a case might raise
ethical issues for the attorney was not a sufficient reason to apply the adverse effect
exception, the Court concluded, because "[n]ot all attorney conflicts present comparable
difficulties." Mickens, 535 U.S. at 175. The Court elaborated on the distinction, stating:

"This is not to suggest that one ethical duty is more or less important than
another. The purpose of our Holloway and [Cuyler v.] Sullivan exceptions from the
ordinary requirements of Strickland, however, is not to enforce the Canons of Legal
Ethics, but to apply needed prophylaxis in situations where Strickland itself is evidently
inadequate to assure vindication of the defendant's Sixth Amendment right to counsel.
See Nix v. Whiteside, 475 U.S. 157, 165[, 106 S. Ct. 988, 89 L. Ed. 2d 123] (1986)
('[B]reach of an ethical standard does not necessarily make out a denial of the Sixth
Amendment guarantee of assistance of counsel'). In resolving this case on the grounds on
which it was presented to us, we do not rule upon the need for the [Cuyler v.] Sullivan
prophylaxis in cases of successive representation." Mickens, 535 U.S. at 176.

In reserving the question, the Mickens Court acknowledged that the facts presented
a successive representation question—the charges against the victim had been dismissed
before the attorney was appointed to represent Mickens. Yet, the Court concluded it did
not need to resolve the question because the case had been argued on the assumption that
Mickens would be required to show defective performance, but he would not be required
"in addition (as Strickland does in other ineffectiveness-of-counsel cases), [to show] a
probable effect upon the outcome of trial." Mickens, 535 U.S. at 174. Mickens had been
unable to meet that burden. Mickens, 535 U.S. at 173-74.

In explaining the three conflict-of-interest subcategories, the Mickens Court also
discussed a district court's duty to inquire into a potential conflict of interest. As to the
first subcategory, the Mickens Court reaffirmed its holding in Holloway that a trial court
has a duty to inquire when there has been an objection to the concurrent representation,
21

and a failure to perform that duty of inquiry requires automatic reversal. Mickens, 535
U.S. at 168. As to the second and third categories, the Mickens Court also reaffirmed the
holding in Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980),
that a trial court has a duty to conduct a sua sponte inquiry where the court, even without
an objection, knows or reasonably should know that a particular conflict exists. The
Mickens Court explained when this duty arises, stating it is limited to situations

"when 'the trial court knows or reasonably should know that a particular conflict exists,'
[citation omitted]—which is not to be confused with when the trial court is aware of a
vague, unspecified possibility of conflict, such as that which 'inheres in almost every
instance of multiple representation.' [Citation omitted.]" Mickens, 535 U.S. at 168-69
(quoting Cuyler, 446 U.S. at 347, 348).

Mickens argued that in his case the duty to inquire arose because the court knew
or should have known of the concurrent representation and that a failure to inquire should
result in automatic reversal. To support this argument, Mickens cited Wood v. Georgia,
450 U.S. 261, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981).

In Wood, the United States Supreme Court remanded the case to the trial court to
determine whether the conflict of interest that was suggested in the record "actually
existed." Wood, 450 U.S. at 273-74. In justifying the remand, the Wood Court noted that
the State had raised the potential conflict and the trial court knew of the facts that raised
the question of whether a conflict existed. Wood, 450 U.S. at 272-73. The possibility that
the attorney was actively representing conflicting interests "was sufficiently apparent . . .
to impose upon the court a duty to inquire further" and to "demonstrate convincingly the
duty of the court to recognize the possibility of a disqualifying conflict of interest."
Wood, 450 U.S. at 272. Yet the trial court's failure to make an inquiry did not lead to a
reversal because the Supreme Court was not able to "be sure whether counsel was
influenced in his basic strategic decision by the [conflicting] interests . . . ." Wood, 450
U.S. at 272. Instead, the Wood Court remanded the case.
22


Mickens argued that through this remand order the Wood Court implicitly relieved
the defendant of the burden of establishing that the conflict had an adverse effect on his
attorney's performance because the order merely required the defendant to establish that a
conflict "'actually existed.'" See Mickens, 535 U.S. at 170 (quoting Wood, 450 U.S. at
273). The Mickens Court rejected this argument, explaining that the phrase "'actual
conflict of interest'" was "shorthand for the statement in [Cuyler v.] Sullivan that 'a
defendant who shows that a conflict of interest actually affected the adequacy of his
representation need not demonstrate prejudice in order to obtain relief.' [Cuyler,] 446
U.S., at 349-350." Mickens, 535 U.S. at 171. The Court further explained this "'actual
conflict of interest'" requirement means more than a mere division of loyalties; it requires
a conflict that affected counsel's performance. Mickens, 535 U.S. at 172 n.5.

Thus, the Mickens Court refused to apply the automatic reversal exception when a
judge violated the Cuyler duty to inquire sua sponte, concluding it "makes little policy
sense" to do so because "[t]he trial court's awareness of a potential conflict renders it no
more likely that counsel's performance was significantly affected" by a conflict than a
situation in which "the trial judge is not aware of the conflict (and thus not obligated to
inquire)." Mickens, 535 U.S. at 172-73. Neither could it be said that the "trial judge's
failure to make the [Cuyler]-mandated inquiry often make[s] it harder for reviewing
courts to determine conflict and effect, particularly since those courts may rely on
evidence and testimony whose importance only became established at the trial." Mickens,
535 U.S. at 173. Rather, a reviewing court could "often" determine whether the conflict
adversely affected the attorney's performance, "particularly since those [reviewing] courts
may rely on evidence and testimony whose importance only becomes established at trial."
Mickens, 535 U.S. at 173. Mickens thus explains the limited practical significance of the
Cuyler obligation to inquire: If a defendant raises an ineffective assistance of counsel
claim based on an alleged conflict of interest for the first time on appeal, the defendant
will bear the same burden of showing an adverse effect on counsel's performance whether
23

the Cuyler obligation to inquire applied and was ignored or simply did not apply.
Mickens, 535 U.S. at 173-74.

Applying these holdings to this case, the Court of Appeals determined the Cuyler
duty to inquire sua sponte arose and the district court abused its discretion in failing to
make the inquiry when Cowell's statements made it apparent he had represented the
victim in one of the cases at issue in the probation revocation proceeding. The Court of
Appeals, applying Mickens, determined this failure to inquire did not result in automatic
reversal. Galaviz, 2009 WL 5206238, at *3-4.

It is this conclusion that Galaviz argues is contrary to this court's holding in State
v. Jenkins, 257 Kan. 1074, 898 P.2d 1121 (1995).

State v. Jenkins

In Jenkins, the defendant was charged with one count of sale of cocaine as a result
of a sale to a confidential informant. Jenkins' attorney had represented the confidential
informant on unrelated charges that took place while the informant was supplying
information to law enforcement officers, including information that led to the charges
against Jenkins. At Jenkins' preliminary hearing, the informant appeared as a key witness
for the prosecution. Jenkins' attorney, during voir dire questioning of the informant,
established that the informant had no objection to the attorney representing Jenkins. The
attorney then asked Jenkins if he was aware of the attorney's representation of the
informant "at an earlier date" and if he was "willing to go forward" with his attorney
continuing to represent him. Jenkins answered, "Yes." Jenkins, 257 Kan. at 1077.

After Jenkins was convicted by a jury, he appealed to the Court of Appeals, raising
the issue of ineffective assistance of counsel for the first time. The Court of Appeals
determined there was a conflict of interest and that Jenkins had not made an informed
24

waiver of the conflict. Nevertheless, the Court of Appeals affirmed the conviction
because Jenkins failed to show that the conflict of interest adversely affected his
attorney's performance. State v. Jenkins, No, 70,958, unpublished opinion filed October
28, 1994, rev'd 257 Kan. 1074, 898 P.2d 1121 (1995).

On review of the Court of Appeals' decision, this court determined the record was
sufficient for the court to consider the ineffective assistance of counsel issue, even though
it was raised for the first time on appeal. Jenkins, 257 Kan. at 1079-80. This court further
found that "[t]he record established that counsel was involved in an attorney-client
relationship with the defendant and the key prosecution witness and was representing
both during the trial of the defendant." Jenkins, 257 Kan. at 1080. Thus, this court agreed
with the Court of Appeals that an "actual conflict" existed in the case. Jenkins, 257 Kan.
at 1087. However, this court disagreed with the Court of Appeals' requirement that the
defendant must show the conflict adversely affected his attorney's performance in order
to receive a reversal of the conviction, concluding the automatic reversal exception stated
in Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978), applied
even though no objection had been made and the attorney was not representing
codefendants. Jenkins, 257 Kan. at 1081, 1083-87. The Jenkins court stated two reasons
for applying the Holloway automatic reversal exception rather than the Cuyler adverse
effect exception even though there had been no objection to the attorney's joint
representation of the prosecution witness and Jenkins. Jenkins, 257 Kan at 1086-87.

First, the Jenkins court contrasted the factual circumstances of Holloway—the
simultaneous and dual representation of codefendants—from the circumstances in
Jenkins—multiple representation of a prosecution witness and a defendant in the same
case. The court reasoned that a conflict does not always arise from concurrently
representing codefendants because, depending on the facts of the case, the codefendants
might be united in interest. See Cuyler, 446 U.S. at 348 (while "a possible conflict
inheres in almost every instance of multiple representation," multiple representation of
25

codefendants in itself does not violate the Sixth Amendment). Consequently, "[a]bsent
special circumstances, . . . trial courts may assume either that multiple representation
entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict
as may exist." Cuyler, 446 U.S. at 346-47. Because of these considerations, the Jenkins
court held that "[w]ithout an objection, the trial court is in no position to know that a
particular conflict exists." Jenkins, 257 Kan. at 1087. In contrast, because the defense
attorney represented the confidential informant "during the time the witness was acting as
a confidential informant for the State in the drug transaction involved in this case[, i]t was
readily apparent that confidential information in one case would be relevant in the other
case. Thus, the court knew that an actual conflict existed." Jenkins, 257 Kan. at 1087.

Second, the Jenkins court observed that the district court was aware of the conflict.
Specifically, the fact that the defense attorney asked the witness and Jenkins questions
about her representation of both of them meant "[t]he court was put on notice that a
conflict of interest existed and that the defendant had not waived the conflict on the
record." Jenkins, 257 Kan. at 1087. The Jenkins court concluded:

"Under these circumstances, given the obligation of the trial court to protect the
defendant's right to a fair trial and the information available to the court from the defense
counsel, we conclude that the rule established in Holloway, rather than the rule
established in Cuyler, applies and that the trial court had an obligation to inquire further
into the conflict of interest. Because the trial court failed to do so, the defendant's
conviction must be reversed." Jenkins, 257 Kan. at 1087.

Hence, if the holding in Jenkins remains valid, the fact that neither Cowell nor
Galaviz objected to Cowell's appointment would not prevent application of the automatic
reversal exception. As a result, because Cowell's statements were sufficient to trigger the
district court's sua sponte duty of inquiry and the court failed to make that inquiry,
reversal would be automatic. Again, because the Jenkins court based its analysis on
26

Holloway and Cuyler, this raises the question of whether Jenkins can be read in harmony
with Mickens when applied to the facts of this case.

Jenkins in Light of Mickens

Factually, Mickens, like this case, arose because the same attorney represented the
victim and the defendant charged with a crime against that victim. The Mickens Court
recognized this created a conflict of interest. But Mickens informs us that the only
circumstance allowing for automatic reversal is one where the representation is
concurrent and a timely objection has been made. See Mickens v. Taylor, 535 U.S. 162,
170-74, 122 S. Ct. 1237, 152 L. Ed. 2d 291, reh. denied 535 U.S. 1074 (2002). Hence,
any language in Jenkins that would suggest automatic reversal is justified even if an
objection is not made or if the representation is successive was effectively overruled by
the United State Supreme Court's decision in Mickens.

As a result, Jenkins does not support Galaviz' argument that he is entitled to
automatic reversal simply because his attorney had a conflict of interest. Galaviz must
establish which Mickens subcategory applies and that he met the burden that applies to
that subcategory. To make this determination, we next examine the facts of this case
regarding what we know about (a) the presence or lack of an objection and (b) the
concurrent or successive nature of the representation.

(a) Objection

In this case, we know there was no objection to Cowell's representation. Hence,
while the district court had a duty to make an inquiry and abused its discretion by failing
to fulfill that duty, under Mickens Galaviz is not entitled to an automatic reversal of the
district court's decision finding that Galaviz violated his probation and ordering Galaviz
to serve the prison sentences. Rather, the facts of this case fall within either the adverse
27

effect exception if Cowell's multiple representations were concurrent or the Mickens
reservation if the multiple representations were successive.

(b) Concurrent or Successive Representation

The Court of Appeals treated the case as a successive representation situation,
referring to Cowell's representation of his "former client," the victim in one of Galaviz'
criminal cases. This inference can be drawn from Cowell's statement that he was the
guardian ad litem for the victim. But this statement does not necessarily eliminate the
possibility that Cowell had continuing obligations as a guardian ad litem for the victim,
especially given that the victim was still a minor at the time of Galaviz' probation
revocation proceeding. We do not even know the type of case in which Cowell was
appointed as a guardian ad litem or whether he had withdrawn or had his appointment
terminated. See People v. Hernandez, 231 Ill. 2d 134, 896 N.E.2d 297 (2008)
(representation of victim and defendant deemed concurrent where attorney remained
attorney of record for victim in different criminal prosecution made dormant by victim's
bond forfeiture). Consequently, we simply cannot determine from the record before us
whether the representation was concurrent or successive.

Yet, without discussion of what test applied to successive representation cases, the
Court of Appeals, as this court did in State v. Adams, 284 Kan. 109, 125, 158 P.3d 977
(2007), applied the adverse effect exception to a situation it deemed to be one of
successive representation. See, e.g., Boldridge v. State, 289 Kan. 618, 627-28, 215 P.3d
585 (2009) (without discussion of Mickens subcategories, examined whether conflict was
structural or could be waived and, because conflict could be waived, applied adverse
effect exception to situation where defendant's attorney, while acting as pro tempore
judge, had authorized an investigatory subpoena related to the charged crime); State v.
Carter, 284 Kan. 312, 321-24, 160 P.3d 457 (2007) (noting adverse effect exception and
citing Mickens in reference to criminal defendant's midtrial expression of dissatisfaction
28

with defense attorney; issue decided based on appropriateness of district court's inquiry
and resolution of objection); State v. Gleason, 277 Kan. 624, 650-52, 88 P.3d 218 (2004)
(recognizing subcategories but not applying them because conflict of interest not
established by defendant's attorney serving as prosecutor in a neighboring county).

We need not determine whether the adverse effect exception is the appropriate
exception to be applied post-Mickens to successive representation situations because in
this case the State does not argue any other test should be applied. Furthermore, like
Mickens, in theory Galaviz benefitted from this treatment by not being required to meet
the more difficult Strickland test that requires a showing that counsel's performance
resulted in prejudice, which is determined by examining whether the deficient conduct
affected the outcome of the proceeding. See Mickens, 535 U.S. at 173-74.

Applying the more lenient adverse effect exception, the Court of Appeals
concluded the appellate record was sufficient to allow analysis under the exception and
that the record did not establish a basis for relief. In considering whether a claim of
ineffective assistance of counsel can be considered for the first time on appeal, we have
previously stated that generally the factual aspects of a claim of ineffective assistance of
counsel require that the matter be resolved through a K.S.A. 60-1507 motion or through a
request to remand the issue to the district court for an evidentiary hearing under State v.
Van Cleave, 239 Kan. 117, 119-21, 716 P.2d 580 (1986); see Jenkins, 257 Kan. at 1079-
80. We have, however, on occasion recognized that a record is sufficient to make the
determination for the first time on appeal. See, e.g., Gleason, 277 Kan. at 650-52. The
United States Supreme Court recognized this possibility in Mickens, 535 U.S. at 173-74.
But the Supreme Court has also warned that the record in joint representation cases will
ordinarily not memorialize mistakes of omission and for a court to evaluate the existence
and effect of such mistakes of omission will usually entail "unguided speculation."
Holloway, 435 U.S. at 491. With these concepts in mind, we consider whether the record
29

in this case is sufficient for us to determine if the conflict of interest adversely affected
Cowell's representation.

In pointing to the record on appeal, Galaviz argues there is circumstantial evidence
that Cowell was influenced by his divided loyalty to the victim because Galaviz, while
initially requesting an evidentiary hearing on the allegations that he had violated his
probation, eventually waived his right to require the State to meet its burden of proof. See
McFarland v. Yukins, 356 F.3d 688, 706 (6th Cir. 2004) ("Causation can be proved
circumstantially, through evidence that the lawyer did something detrimental or failed to
do something advantageous to one client that protected another client's interests."). It
could be argued that Cowell's loyalties to the victim would be furthered by the certainty
of an admission that would lead to a revocation of Galaviz' probation. The Court of
Appeals, however, concluded the more likely cause of the decision to waive the hearing
was the amendment of the allegations to include new convictions. See Galaviz, 2009 WL
52016238, at *4. Certainly, if we were to apply Strickland's prejudice test, we would
conclude that Galaviz' admission to the violations most likely did not change the outcome
of the proceeding.

But that is not our test. Here the question is whether Cowell's active conflict of
interest had an adverse effect on his representation. Ultimately, it may be that the answer
is that it did not and that it was the new convictions that influenced the decision to admit
to the alleged probation violations. However, the record before us does not provide any
information regarding the reasons the strategy was changed. Further, Galaviz had a right
to insist on an evidentiary hearing even if it was likely, or even virtually certain, that he
would not prevail. Cf. Kargus v. State, 284 Kan. 908, 924-25, 169 P.3d 307 (2007)
(noting distinction between attorney's performance denying defendant a fair proceeding,
where Strickland presumption of reliability applies, and depriving defendant of a right to
a proceeding, where presumption cannot apply because proceeding did not occur). In
other words, we disagree with the Court of Appeals' conclusion that the record on appeal
30

is adequate to allow us to assess this or the other allegations of adverse performance that
Galaviz has asserted. As the United States Supreme Court stated in Wood, we are unable
to "be sure whether counsel was influenced in his basic strategic decision by the
[conflicting] interests . . . ." Wood, 450 U.S. at 272.

Nevertheless, Galaviz has not requested a Van Cleave hearing. Normally, this
would mean we would not consider his claim and he would have to bring his claims in a
proceeding under K.S.A. 60-1507. But he argues that he should be allowed automatic
reversal because Jenkins had precedential authority and controlled his case. For the
reasons we have discussed, we disagree. Yet, because this decision is the first time we
have recognized the overruling of Jenkins, we conclude that in these exceptional
circumstances a remand should be allowed.

We, therefore, remand to the district court with directions to appoint new counsel
and either conduct the probation revocation proceeding with conflict-free counsel or
conduct a hearing regarding the nature of the conflict of interest and whether that conflict
requires a reversal of the probation revocation.

The judgment of the Court of Appeals affirming the district court is reversed. The
judgment of the district court is reversed, and the case is remanded with directions.

MORITZ, J., not participating.
NICHOLAS ST. PETER, District Judge, assigned.
1


1
REPORTER'S NOTE: District Judge St. Peter was appointed to hear cases Nos.
101,804 and 101,805 vice Justice Moritz pursuant to the authority vested in the Supreme
Court by Art. 3, § 6(f) of the Kansas Constitution.

* * *

31

JOHNSON, J., concurring: I concur in the result.