2013 Unpublished Opinion No. 668
Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Fred M. Gibler, District Judge.
Judgment denying post-conviction relief, affirmed.
Greg S. Silvey, Star, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.
Marjory Ann Barnes appeals from the judgment dismissing her post-conviction action. In her amended petition Barnes raised several claims, but on appeal her claim of error is narrow. She argues only that the trial court erred by summarily denying her ineffective assistance claim based upon an actual conflict of interest. We affirm.
This Court previously addressed Barnes's claims on direct appeal. State v. Barnes, Docket No. 37995 (Ct. App. May 4, 2012) (substitute unpublished opinion). In that opinion, we set forth the following factual background concerning the original trial:
Following a report of concerns that Barnes and her boyfriend, Gregory Klundt, were manufacturing methamphetamine in their shared residence, law enforcement obtained a warrant to search their house. The search revealed a number of items associated with the manufacture of methamphetamine. The state charged Barnes with conspiracy to traffic in methamphetamine by manufacture, I.C. §§ 37-2732B(a)(3) and 18-204; trafficking in methamphetamine by manufacture, I.C. §§ 37-2732B(a)(3) and 18-204; and possession of a controlled substance, pseudoephedrine, with intent to manufacture methamphetamine, I.C. § 37-2732(a)(1)(A). After trial, a jury found Barnes guilty. Barnes was sentenced to concurrent determinate terms of five years for each count.
Id. In addition to her direct appeal, Barnes filed a post-conviction action.
In her amended post-conviction petition, Barnes claimed that she was due relief because her sentence was unlawful, new facts warranted the vacation of her conviction, the prosecutor had committed misconduct, and her attorneys provided ineffective assistance of counsel by, inter alia, representing Barnes while having an actual conflict of interest. During a hearing on the State's motion for summary dismissal, Barnes, through counsel, withdrew several claims including the prosecutorial misconduct claim and some of the ineffective assistance of counsel claims. Thereafter, the district court held an evidentiary hearing on the remaining claims including the claim at bar.
At the evidentiary hearing, Barnes adduced evidence that she and her co-defendant had obtained a single attorney, John Redal, to represent them both. While Redal could not specifically recall whether he had done so in this case, he believed he informed his clients of the benefits and risks of dual representation and how he would respond if an actual conflict emerged. Redal represented both Barnes and her co-defendant through most of the pretrial process, including a motion to suppress evidence. However, after the denial of the suppression motion, and realizing that the case likely would go to trial, Redal believed that the dual representation might become problematic because an actual conflict could emerge. He was concerned that one or both ...