[This opinion has been published in Ohio Official Reports at
74 Ohio St.3d 166.]
THE STATE OF OHIO, APPELLEE, v. DILLON, APPELLANT.
[Cite as State v. Dillon, 1995-Ohio-169.]
Appellate procedure—Application for reopening appeal from judgment and
conviction based on claim of ineffective assistance of appellate counsel—
Claim of ineffective assistance based on issue of counsel’s failure to raise
trial counsel’s alleged conflict of interest in representing multiple
criminal defendants—Application denied, when.
(No. 94-2134—Submitted September 12, 1995—Decided December 13, 1995.)
APPEAL from the Court of Appeals for Montgomery County, No. 10138.
__________________
{¶ 1} This case concerns the subject of an attorney’s conflict of interest in
representing multiple criminal defendants.
{¶ 2} A jury convicted appellant, Chris G. Dillon, of kidnapping,
aggravated robbery, gross sexual imposition and rape for two separate incidents
occurring on April 3, 1986 and April 14, 1986. Attorney Dennis A. Lieberman
(“Lieberman”) represented Dillon at trial. At that time, Lieberman also represented
Vincent Mastice (“Mastice”), who had been charged with crimes committed in a
manner similar to the April 1986 offenses. Mastice, however, was in custody in
April when those offenses took place.
{¶ 3} Although it is not clear in the record, the state does not dispute the
fact that the police questioned Mastice about the April offenses and that Mastice
suggested Dillon as a suspect.
{¶ 4} During Dillon’s trial, Lieberman presented an alibi defense and
argued that the victims misidentified Dillon as their assailant. During crossexamination of Dillon, it appears the state sought to make the point that Dillon
adopted the modus operandi for his crimes from his discussions with Mastice about
SUPREME COURT OF OHIO
how Mastice carried out similar crimes. Dillon, however, denied any conversations
with Mastice about rapes or robberies. The state then called Mastice to rebut that
portion of Dillon’s testimony.
{¶ 5} Prior to Mastice’s being sworn, during an in-chambers conference,
Lieberman disclosed his relationship with Mastice to the court and that he had
counseled Mastice regarding his Fifth Amendment privilege the prior evening . The
prosecutor also advised the court that Mastice had been charged with rapes and
aggravated robberies that were “closely aligned” with those committed by Dillon.
Lieberman objected to Mastice’s testimony not only because it was improper
rebuttal but also because it would be improper for Mastice to invoke his Fifth
Amendment privilege in the jury’s presence.
{¶ 6} At Lieberman’s suggestion, the court appointed a public defender to
advise Mastice before he submitted to a voir dire examination by the state. During
the voir dire, Mastice confirmed that if called to testify, he would refuse to answer
any questions regarding Dillon. The state dismissed Mastice and rested without his
testimony.
{¶ 7} According to Dillon, a month following Dillon’s conviction,
Lieberman represented Mastice in entering a guilty plea to charges pending against
Mastice.
{¶ 8} Different counsel represented Dillon on the appeal of his conviction.
The brief filed on Dillon’s behalf contained no assignments of error and four and
one-half pages of argument. The appeal advanced two arguments: juror misconduct
and weight of the evidence. The Court of Appeals for Montgomery County affirmed
Dillon’s convictions.
{¶ 9} In March 1993, Dillon filed an application for delayed reconsideration
in the court of appeals pursuant to State v. Murnahan (1992), 63 Ohio St.3d 60,
584 N.E.2d 1204. Dillon asserted a claim of ineffective assistance of appellate
counsel based upon the “perfunctory brief” which failed to raise the conflict of
2
January Term, 1995
interest issue. The court of appeals overruled Dillon’s application, finding that the
trial court sufficiently inquired into a possibility of a conflict, that Dillon failed to
show an actual conflict which adversely affected his lawyer’s performance, and that
Dillon failed to present evidence that the appellate brief prejudiced him.
{¶ 10} This cause is now before the court upon an appeal as of right.
__________________
Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and
Michael L. Gebhart, Assistant Prosecuting Attorney, for appellee.
David Goldberger and Anne M. Doyle, for appellant.
__________________
COOK, J.
{¶ 11} The issue before the court is whether Dillon’s appellate counsel was
ineffective in failing to raise trial counsel’s alleged conflict of interest in the appeal
of his convictions. Because we find that Dillon’s trial counsel did not represent
competing interests, and that there was neither a possibility of a conflict of interest
nor an actual conflict of interest, we affirm the judgment of the court of appeals.
{¶ 12} Where there is a right to counsel, the Sixth Amendment to the United
States Constitution also guarantees that representation will be free from conflicts
of interest. State v. Gillard (1992), 64 Ohio St.3d 304, 312,
595 N.E.2d 878, 883.
Both defense counsel and the trial court are under an affirmative duty to ensure that
a defendant’s representation is conflict-free. The trial court’s duty arises when the
court knows or reasonably should know that a possible conflict of interest exists or
when the defendant objects to the multiple representation. State v. Manross (1988),
40 Ohio St.3d 180, 181,
532 N.E.2d 735, 737. Then, the trial court is
constitutionally required to conduct an inquiry into the possible conflict of interest.
See
id.
{¶ 13} Dillon argues that the trial court’s in-chambers conference failed to
satisfy its affirmative duty to inquire into a conflict of interest. However, the
3
SUPREME COURT OF OHIO
threshold issue is whether the court had a duty to inquire into a possible conflict of
interest in the first instance. From the facts and circumstances of this case, we
conclude that the tenets of the Sixth Amendment imposed no duty upon the trial
court to inquire into a possible conflict of interest.
{¶ 14} Joint representation of conflicting interests is “suspect because of
what it tends to prevent an attorney from doing.” Holloway v. Arkansas (1978), 435
U.S. 475, 489-490,
98 S.Ct. 1173, 1181,
55 L.Ed.2d 426, 438. Thus, a possible
conflict of interest is inherent in almost all instances of joint or multiple
representation of conflicting interests. Cuyler v. Sullivan (1980),
446 U.S. 335, 348,
100 S.Ct. 1708, 1718,
64 L.Ed.2d 333, 346. “A lawyer represents conflicting
interests when, on behalf of one client, it is his duty to contend for that which duty
to another client requires him to oppose.” Manross,
40 Ohio St.3d at 182,
532
N.E.2d at 738. A possibility of a conflict exists if the “interests of the defendants
may diverge at some point so as to place the attorney under inconsistent duties.”
Cuyler,
446 U.S. at 356,
100 S.Ct. at 1722,
64 L.Ed.2d at 351-352, fn. 3 (Marshall,
J., concurring in part and dissenting in part).
{¶ 15} Dillon contends Lieberman represented conflicting interests because
Lieberman represented clients charged with crimes committed in a similar manner
and because Mastice implicated Dillon to the police as a suspect. As a result, Dillon
maintains that Lieberman had a duty to shift the blame from one client to the other.
These contentions do not withstand scrutiny.
{¶ 16} That his two clients were charged with crimes committed in a similar
manner does not present Lieberman with a possible conflict of interest. Because
Mastice was in custody at the time Dillon’s crimes were committed, Mastice could
not possibly have committed those crimes. Lieberman, therefore, was under no
duty to either client to shift the blame to the other.
{¶ 17} The other basis for claiming Lieberman represented conflicting
interests is also faulty. Dillon posits that because Mastice suggested Dillon as a
4
January Term, 1995
possible suspect for the April crimes to the police, Lieberman thereby faced a
conflict of interest in representing both defendants. Dillon submits Lieberman
owed a duty to Mastice to negotiate a plea bargain for Mastice by convincing the
prosecutor that Dillon was responsible for the crimes with which Mastice was
accused. Dillon, however, was not charged with Mastice’s crimes and Mastice
could not have committed Dillon’s crimes. Testimony adduced at Dillon’s
suppression hearing indicates that the police did not suspect Dillon in the crimes
with which Mastice was charged. Thus, the fact that Mastice implicated Dillon did
not create conflicting duties for Lieberman.
{¶ 18} Even assuming Lieberman persuaded the state to offer Mastice
leniency in sentencing in exchange for Mastice’s providing names of suspects for
the later crimes, Lieberman still did not operate under a possible conflict of interest.
According to Dillon, Mastice implicated him to the police prior to Lieberman’s
representation of Dillon. Because the negotiations took place when Lieberman
represented only one client, Mastice, Lieberman did not represent conflicting
interests. Rather, Dillon testified that although Dillon knew Mastice, Dillon never
spoke to Mastice about the types of crimes with which Dillon was charged. While
Mastice could implicate Dillon in the April crimes, Dillon had no basis for shifting
the blame to Mastice. Therefore, Lieberman did not have a duty to advocate a
position on behalf of Dillon that a duty to Mastice required him to dispute or vice
versa.
{¶ 19} Dillon concludes that Lieberman’s duty to him required Lieberman
to persuade prosecutor, judge and jury that he was the “fall guy” in Mastice’s
conspiracy of sexual assaults. However, Dillon fails to provide any arguments as
to how Lieberman could have established such an inference, nor can this court
envision any plausible argument which would create an inference that Dillon was
the “fall guy” of Mastice’s “conspiracy.” Again, because Dillon testified that he
5
SUPREME COURT OF OHIO
never spoke to Mastice about these types of crimes, there is no basis for an argument
that Mastice influenced or somehow forced Dillon to commit the crimes.
{¶ 20} In light of all the facts the trial court knew, and those which Dillon
claims the court should have known, we conclude that Lieberman did not represent
conflicting interests and that there was no possibility of a conflict of interest in
Lieberman’s representation of Mastice and Dillon. Therefore, the trial court had
no duty to inquire.
{¶ 21} Where a trial court has no duty to inquire and the defendant raises
no objection at trial, a defendant must demonstrate that an actual conflict of interest
adversely affected his lawyer’s performance. Cuyler, 446 U.S. at 348,
100 S.Ct. at
1718,
64 L.Ed.2d at 346-347. An “actual, relevant conflict of interests” exists “if,
during the course of the representation, the defendants’ interests do diverge with
respect to a material factual or legal issue.”
Id. at 356,
100 S.Ct. at 1722,
64 L.Ed.2d
at 352, fn. 3 (Marshall, J., concurring in part and dissenting in part). In such a case,
counsel’s duty to one client “tends to lead to disregard for another.” Manross,
40
Ohio St.3d at 182,
532 N.E.2d at 738.
{¶ 22} Dillon reasons that an actual conflict of interest arose when the
prosecutor argued in closing that Dillon and Mastice were involved in a
“conspiracy” and when the state attempted to call Mastice as a rebuttal witness
against him.
{¶ 23} As part of his defense at trial, Dillon presented evidence of a July
1986 sexual assault committed while he was in custody and in a manner similar to
the April assaults. The assailant in the July 1986 assault telephoned a “Mike” after
the attack. In reference to the July 1986 attack during his closing argument, the
prosecutor told the jury about a “three headed snake”—Dillon, the unknown
assailant, and “Mike.” At no time did the prosecutor or Lieberman elicit testimony
or argue that Mastice was the unknown assailant.
6
January Term, 1995
{¶ 24} Dillon contends that this argument exposed him and Mastice to coconspirator liability by which each could be held responsible for the criminal acts
of the other and raised an actual conflict of interest. This argument is unpersuasive.
Neither Mastice nor Dillon was charged with conspiracy. That Mastice and Dillon
knew each other neither inculpates nor exculpates Dillon, since Dillon testified he
never spoke to Mastice about these crimes. The reference in closing argument to a
“conspiracy” fails to enhance either Dillon’s or Mastice’s crimes.
{¶ 25} In addition, Dillon’s argument that an actual conflict arose when the
state called Mastice as a witness is equally unconvincing. Dillon asserts the conflict
became obvious when Lieberman objected to Mastice’s testimony, since the trial
judge thought the jury might infer that Mastice had committed the crimes.
However, any testimony by Mastice would have disclosed that he could not have
committed the April crimes and we see no other way that Mastice could be held
responsible for them. Given the fact that Mastice implicated Dillon to the police, it
seems more likely that Mastice’s testimony would have inculpated rather than
exculpated Dillon. Therefore, Lieberman’s decision to object to Mastice’s
testimony was a reasonable one and not suspect.
{¶ 26} In light of these facts, we find no actual conflict of interest which
adversely affected Lieberman’s performance and no violation of Dillon’s Sixth
Amendment right to conflict-free representation. Accordingly, Dillon’s appellate
counsel was not ineffective in failing to raise the issue upon appeal.
{¶ 27} Finally, Dillon challenges the appellate court’s finding that he failed
to meet both prongs of the Strickland test, i.e., that the “deficient” brief filed by
appellate counsel prejudiced him. Strickland v. Washington (1984), 446 U.S. 668,
687,
104 S.Ct. 2052, 2064,
80 L.Ed.2d 674, 687. Rather, Dillon maintains, an
appeal pursuant to State v. Murnahan (1992),
63 Ohio St.3d 60,
584 N.E.2d 1204,
must be granted where there is a “colorable claim” of ineffective assistance of
7
SUPREME COURT OF OHIO
counsel. Dillon argues the mere fact that the original appellate counsel failed to
raise the conflict of interest issue fulfills the Murnahan standard.
{¶ 28} Pursuant to Murnahan, a defendant may apply for delayed
reconsideration (now application for reopening, see App.R. 26[B]) in courts of
appeals only where he has set forth a colorable claim of ineffective assistance of
counsel, where the circumstances render a claim of res judicata unjust, and the time
periods for reconsideration in courts of appeals and direct appeal to this court have
expired. Id. at 66,
584 N.E.2d at 1209. However, an appellate court should
determine whether there are substantive grounds for relief before granting
reconsideration.
Id. In making that determination, the court may consider any
motions, supporting affidavits, and all the files and records pertaining to the
proceedings against the defendant that were originally transmitted to the court of
appeals.
Id.
{¶ 29} A “colorable claim” of ineffective assistance of counsel necessarily
includes presenting some evidence of both prongs of Strickland, 466 U.S. 668,
104
S.Ct. 2052,
80 L.Ed.2d 674. Thus, the court did not err in requiring Dillon to
provide some evidence of prejudice. Because State v. Murnahan encourages
review of the substantive grounds for relief before a court grants such a motion,
neither did the court err in reviewing both prongs of the Strickland standard.
{¶ 30} Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, WRIGHT, RESNICK and F.E. SWEENEY, JJ., concur.
PFEIFER, J., dissents.
__________________
8
January Term, 1995
DOUGLAS, J., concurring.
{¶ 31} The in-depth and thorough review of the record in this case, as so
well set forth herein by Justice Cook, makes clear the professional and highly
competent way in which attorney Dennis A. Lieberman handled a very difficult
matter. When the series of events occurring in this case are detailed in
chronological order, the step-by-step analysis by Lieberman of any possible
conflict in his representation of both Mastice and Dillon, and his decision-making
when so confronted, reflect well on both Lieberman and our profession.
__________________
9
