The opinion
NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
JAK 08-1226
STATE IN THE INTEREST OF
D. A.
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APPEAL FROM THE
JEANERETTE CITY COURT
PARISH OF IBERIA, NO. 2116
HONORABLE CAMERON B. SIMMONS, CITY COURT JUDGE
**********
BILLY HOWARD EZELL
JUDGE
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Court composed of Oswald A. Decuir, Michael G. Sullivan, and Billy Howard Ezell,
Judges.
REMANDED WITH INSTRUCTIONS.
Walter James Senette, Jr.
Assistant District Attorney
Post Office Box 268
337-828-4100
Counsel for Plaintiff/Appellee:
City of Jeanerette
Margaret Smith Sollars
LA Appellate Project
513 Country Club Blvd.
Thibodaux, LA 70301-3711
(985) 446-2618
Counsel for Defendant/Appellant:
D. A.
EZELL, JUDGE.
D.A., a juvenile, was adjudicated a delinquent based on the crime of
unauthorized entry of an inhabited dwelling in September 2007. On January 24,
2008, the city court entered a judgment of disposition, remanding D.A. to the custody
of the State of Louisiana for one year with a recommendation for non-secure
placement with the Office of Youth Development. D.A. appealed and this court
affirmed his adjudication, State in the Interest of D.A., 08-346(La.App. 3 Cir.
8/29/08), ____So.2d ____. On appeal, one of D.A.’s claims was that the joint
representation of the four juveniles by one attorney created an actual conflict of
interest. The record did not establish this claim as to the adjudication proceeding, and
this court held that D.A. failed to prove an actual conflict arose. However, it was
impossible to determine from the record before this court whether D.A. and D.J., a
codefendant, were represented by the same attorney at the disposition hearing, as
argued by D.A.’s counsel in her original brief to this court. Accordingly, this court
remanded the case with the following instructions:
For the above reasons, we remand this case with instructions that
the city court conduct an evidentiary hearing within twenty days of this
date to determine whether D.A. and D.J. were represented by the same
attorney at the disposition hearing, and, if so, whether that attorney
labored under an actual conflict of interest. The trial court is further
ordered to prepare and lodge with this court an appellate record
containing the transcript of the above-referenced evidentiary hearing
within ten days of the hearing. Once this record is lodged with this
court, the State and the Juvenile will be given the opportunity to file
briefs should either party wish to raise any issues arising from the
hearing.
The matter was taken up by the city court judge, Cameron B. Simmons, on
September 18, 2008, and the case is now before this court for consideration of the
issue that was the subject of the remand; however, for the reasons discussed below,
this case is again remanded for a full evidentiary hearing.
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At the September 18, 2008, proceeding, D.A. was represented by Craig
Colwart, Chief Public Defender with the Public Defender’s Office. At the outset of
the proceeding, Judge Simmons and Mr. Colwart addressed the issue of any potential
conflict of interest concerning representation of D.A. at the hearing as well as any
conflict of interest at his previous disposition hearing:
Judge Simmons: Yes, just for purposes of the record we had a
meeting before we started hearing these cases this
morning, where we discussed with all of the
attorneys that were involved with the Public
Defender Boards [’] Office and cleared up any issue
about representation for these hearings and Mr.
D.A., in this case, you actually were represented in
this matter for purposes of these proceedings before
the Appellate Court between a Margaret Solars, who
enrolled as your councel [sic] of record. We sent
notice to Ms. Solars of the fixing of this matter for
today for hearing. She’s not here and haven’t had
any response for her. In that regard, I referred this
matter back to the Public Defender Boards [’]Office
[sic] for representation. In order that we have
conflict [-] free representation, we have met with the
Board to discuss representation of the juveniles this
morning. Mr. Colwart who is a Chief Public
Defender is appearing here on behalf of your case.
Do you understand that? Mr. Colwart, I understands
[sic] had an opportunity to talk to you all, he’s had
an opportunity to review all of these opinions before
today’s date and review the file. Ok.
Mr. Colwart: That’s correct Your Honor and I had an opportunity
to talk to the defendant, whose [sic] present, and his
mother. Can you state your name for the record.
[The Mother]: Mother.
Mr. Colwart: Ok, and your name, sir.
[The Stepfather]: [Stepfather].
Mr. Colwart: Ok, I didn’t have a chance to talk to [the Stepfather],
but I had a long conversation with the mother and
Mr. D.A. and explained to them the situation and
what the issues that were pending before the court.
And we or for the defense perspective we are
acknowledging, although, they disagree with the
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finding of guilt and the affirmation. They are
acknowledging that he does as he’s appeared before
your court that he is convicted of being a principle
[sic] to an Unauthorized Entry of an Inhabited
Dwelling. I went over the issue of the remand and
what issues that entailed about the conflict. They
understand that situation and in the spirit of moving
the case along, which is what Mr. D.A. and his
momma wants to do is move the case along, that
they would waive any potential conflict.
The conflict arose out of the fact that at the trial that
he was represented by Mr. John West. After his
conviction, at his disposition he was represented by
Ms. Shantelle Brown, who was also mentioned as
the Attorney of Record for Mr. D.J., who was the
person who made the statement implicating Mr.
D.A. So, I guess the Third Circuit said, “Well, that
looks like that could be conflict, so we are going to
remand it back down to make a determination.” I’ve
explained the issued [sic] to Mr. D.A. and his
mother; they indicated to me they understood it; they
wish to waive any conflict and I also explained to
them as we put on the record previously this
morning that when you look at the record it didn’t
appear to me that there was a conflict because Ms.
Brown was never officially appointed to represent
Mr. D.J. prior to the disposition of Mr. D.A. case.
But, be that as it may, they wish to waive any
conflict that may appear on the record and they wish
to proceed knowing that they are, that D.A. is
convicted of being a principle [sic] of an
Unauthorized Entering. They understand that that
would affirm the two[-]year sentence that was
originally imposed on him. I’m sorry, he was given
a one[-]year sentence. That would reinstate the
one[-]year sentence disposition that was imposed,
originally imposed on him and at this time we would
move . . . the court to modify the disposition as per
the most recent report that was made to the court.
The judge then addressed the issue remanded by this court regarding
representation of the juveniles at the disposition hearing:
Judge Simmons: Ok, understanding all that, Judge Ezell when he
remanded this matter back to the Court, had pretty
specific instructions for the Court and for purposes
of the remand, there were instructions to the Court to
conduct an evidentiary hearing within twenty days
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of this date to determine whether D.A. and D.J. were
represented by the same attorney at the dispositional
hearing and if so whether that attorney labored under
the actual conflict of interest.
For purposes of D.A.’s case, he was in fact
represented by Mr. John West. That’s correct.
Mr. Colwart: At trial.
Mr. Senette: At trial, Your Honor.
Judge Simmons: Ok, and D.J. was represented by who?
Mr. Colwart: Kay Pitman
Judge Simmons: Kay Pitman.
Mr. Colwart: He was never represented by. . .
Judge Simmons: Ok, so in answer to Judge Ezell’s questions, the
parties are stipulating to me this morning and it’s
also my own recollection that Mr. West represented
D.A. at the adjudication hearing...
Mr. Senette: That’s correct.
Judge Simmons: And Kay Pitman represented at the adjudication
hearing. But the issue that Judge Ezell said was then
at the dispositional hearing, Ms. Brown is going to
represent who?
Ms. Brown: D.J. only.
Judge Simmons: At disposition. And at [sic] D.A. was represented by
Mr. West at the dispositional hearing.
Ms. Brown: John West. That’s correct.
Judge Simmons: So, for purposes for Judge Ezell’s questions and my
own recollection then would be that Mr. West
represented D.A. at both the adjudication and
dispositional hearings and Ms. Brown represented
D.J. at the dispositional hearing. Regardless of that
as reviewed on the record in other matters. The
Court is satisfied after taking a look at the proposed
ineffective assistance of counsel arguments that
were raised in other appellate decisions, that there
was not in fact an actual conflict of interest between
the attorneys, although the court acknowledges that
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they were all represented through the Public
Defender Board and had files.
At one point during the proceeding, Judge Simmons asked D.A.’s mother if she
understood what was being talked about, and the following exchange occurred:
Judge Simmons: ....
[Mother], do you understand what we’re talking
about?
[The Mother]: Not clearly.
Judge Simmons: Ok, you had a chance to talk to Mr. Colwart.
[The Mother]: Yeah, I had a chance to talk to him, I mean, I
understand most of what he was talking about. I just
kinda got a little confused with the different
attorneys, you know, because at one point in time,
Ms. Brown, I did speak to her about D.A.[’s] case.
And I thought that she was D.A.[’s] attorney and this
other man that I never spoke with when he
represented D.A. I haven’t seen him, never spoke to
him about the case. All I knew is that he appeared
on the scene and was his attorney. And that kind of
confused him and it confused me.
After disposing of the issue remanded by this court, Judge Simmons
entertained and granted a request for modification of D.A.’s disposition. According
to the judge, prior to the hearing, the Office of Juvenile Justice informed him that
they had recommendations “relative to D.A. to modify the disposition.” Having been
asked by Mr. Colwart to “entertain a modification hearing,” and there being no
objection by the State, the court considered the request for modification. The court
modified the Juvenile’s disposition, incorporating the requests by the State that he
stay away from the victim and the victim’s family and to make restitution for the
weapon that was taken. The remainder of D.A.’s sentence was suspended, and he was
placed on supervised probation for one year with the Office of Juvenile Justice,
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subject to certain conditions. D.A.’s mother indicated that he would reside with her
and that he would probably attend Jeanerette Middle School.
INSUFFICIENCY OF THE HEARING
In remanding the case, this court ordered an evidentiary hearing, which is “a
hearing at which evidence is presented, as opposed to a hearing at which only legal
argument is presented.” Blacks Law Dictionary 725 (7th ed. 1999). No evidence as
to which attorney(s) represented D.A. and D.J. at the disposition hearing was
presented. Rather, the finding that they were represented by different counsel was
based on Judge Simmons recollection and Ms. Brown’s unsworn statement that she
represented D.J. and Mr. West represented D.A. at the disposition hearing. Mr. West,
although present at the hearing, did not speak. This was not an evidentiary hearing
as ordered by this court. Accordingly, the case is remanded again for an evidentiary
hearing at which evidence, such as sworn testimony, must be presented as to who
represented D.A. and D.J. at the disposition hearing. If D.A. and D.J. were
represented by the same attorney, as alleged by D.A.’s counsel in her original brief
to this court, a determination of whether that attorney labored under an actual conflict
of interest should be made. See State in the Interest of D.A., 08-346 (La.App. 3 Cir.
8/29/08), 995 So.2d 11.
ASSIGNMENT OF ERROR
In her brief filed after the September 18, 2008 hearing, appellate counsel claims
that a conflict attorney, not another Indigent Defender Board, (IDB) attorney, should
have been appointed to represent D.A. at the evidentiary hearing. As her “Issue of
Law,” counsel questions whether another IDB attorney, who was not a conflict
attorney, could waive D.A.’s right to a hearing when the IDB created the conflict in
the first place. Counsel claims that Mr. Colwart persuaded D.A. and his mother to
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waive the prior conflict in the case, something that D.A.’s mother did not understand,
as evidenced by her comment to Judge Simmons.
Counsel restates much of her argument from her original brief regarding the
joint representation by one attorney of the juveniles prior to the disposition hearing,
an issue addressed and denied by this court in its ruling affirming the Juvenile’s
adjudication. Counsel additionally restates her argument regarding the joint
representation of D.A. and D.J. by one attorney at the disposition hearing. As for the
evidentiary hearing, counsel claims another attorney should have been appointed to
represent D.A. at the hearing, as “Craig Colwart was now the fourth public defender
to represent D.A.” In support of her argument regarding a conflict involving IDB
attorneys, counsel cites two cases, State v. McNeal, 593 So.2d 729 (La.App. 4 Cir.
1992)1, and State v. Johnson, 597 So.2d 79 (La.App. 4 Cir. 1992), neither of which,
she claims, apply to this situation due to the fact that all IDBs are required to have
conflict attorneys available to handle situations such as this, “particularly after
[LIDAB] was reorganized and the local boards eliminated.” Counsel contends she
has plainly established that an actual conflict of interest existed which has
demonstrated an independent ground for reversing the adjudication based on a
violation of D.A.’s right to effective assistance of counsel. There is no prayer for
1
In the McNeal case cited by counsel, the court held:
The mere fact that attorneys representing clients with conflicting
interests are employees of the same indigent defender board does not in
itself furnish a ground for one of the attorneys to withdraw or for the
client to insist upon the appointment of an attorney who is not an
employee of the board.
Id. at 730. Although not cited by defense counsel, we note the supreme court reversed
the fourth circuit in State v. McNeal, 594 So.2d 876 (La.1992), and the United States
Supreme Court vacated the judgment on other grounds in State v. Johnson, 508 U.S.
958, 113 S.Ct. 2926 (1993).
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relief, only a conclusion which states that a conflict existed throughout the entire
proceedings and another IDB attorney could not represent D.A. at the evidentiary
hearing.
Counsel’s current brief raises the issue of a conflict of interest resulting from
different attorneys within the same IDB representing the juveniles, whereas, in her
original brief, the focus of her argument was that the juveniles were initially
represented by the same attorney, and that both D.A. and D.J. were represented by the
same attorney at the disposition hearing.
This court has already affirmed the Juvenile’s adjudication of delinquency,
after having found counsel, in her original brief, failed to prove an actual conflict of
interest up to the point of the disposition hearing. The only issue to be addressed at
the evidentiary hearing was whether D.A. and D.J. were represented by the same
attorney at the disposition hearing and, if so, whether that attorney labored under an
actual conflict of interest. We find that counsel cannot now be allowed to raise the
“IDB conflict” argument regarding any proceeding other than the September 18, 2008
hearing, as she did not do so in her original brief to this court, and this court has
already addressed her original conflict argument as it related to the adjudication
proceeding.
This case is remanded for the holding of a full evidentiary hearing. Counsel’s
argument regarding a conflict of counsel at the September 18, 2008 hearing is
technically moot. However, out of an abundance of caution, in the interest of judicial
economy, and considering this is an expedited juvenile matter, this court orders that
the D.A. be represented by an attorney outside the Public Defender’s Office at the
upcoming evidentiary hearing.
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DISPOSITION
This case is remanded to the city court with instructions that it conduct a full
evidentiary hearing within twenty days from the date this opinion is rendered on the
issue of whether D.A. and D.J. were represented by the same attorney at the
disposition hearing, and if so, whether that attorney labored under an actual conflict
of interest. Although remanding for a new evidentiary hearing renders counsel’s
arguments regarding a conflict of interest at the September 18, 2008 hearing moot,
as a precautionary measure, and in the interest of judicial economy, this court orders
that counsel outside the IDB be appointed to represent D.A. at the new hearing. The
trial court is ordered to prepare and lodge with this court an appellate record
containing the transcript of the above-referenced evidentiary hearing within ten days
of the hearing. Once the record is lodged, the State and the Juvenile shall be given
the opportunity to file briefs should either party wish to raise any issues arising from
the hearing. Counsel’s claims regarding a conflict of interest at any proceeding other
than the evidentiary hearing will not be considered as they are not properly before this
court.
REMANDED WITH INSTRUCTIONS.
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION: Rule 2-16.3
Uniform Rules, Court of Appeal.
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