Right to conflict-free counsel at probation revocation

Carl Folsom, III and Carol Longenecker Schmidt won in State v. Galaviz, No. 101,084 (Kan. Dec. 28, 2012), obtaining a new probation revocation hearing in a Ford County aggravated indecent liberties prosecution.  The KSC reviewed several SCOTUS cases and its own cases and concluded that there is a constitutitonal right to conflict-free counsel at a probation violation hearing:

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.

The KSC went on to overrule previous Kansas caselaw that persons who are provided conflicted counsel are entitled to automatic reversal absent an objection, but held that Mr. Galaviz should get a new hearing because the record was insufficient to establish that he was not entitled to relief, particularly where the prejudice was the waiver of an evidentiary hearing:

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 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 . . . ."

Because the record was not sufficient, the KSC remanded for further proceedings.