Podieh v. State

470 Md. 272

235 A.3d 68

YAW POKU PODIEH

v.STATE of Maryland

No. 31, Sept. Term, 2019

Court of Appeals of Maryland.

August 14, 2020

Argued by James M. Nichols and Michelle M. Martz (Michelle M. Martz, P.A., Frederick, MD), on brief, for Petitioner.

Argued by Brenda Gruss, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.

Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Sally D. Adkins (Senior Judge, Specially Assigned) JJ.

Barbera, C.J.

We consider in the present case what combination of facts and circumstances, and actions or inactions on the part of counsel while representing a defendant in a criminal matter, constitute a conflict of interest that is presumed prejudicial, thereby entitling the defendant to a new trial. The test for determining such a conflict is found in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland , a criminal defendant may receive a new trial based on an allegation of ineffective assistance of counsel. In the typical case involving such a challenge, the defendant is required to demonstrate both that counsel's performance was deficient and that such performance prejudiced the defense. Id. at 687, 104 S.Ct. 2052. This general rule, however, has an exception: "The defendant is excused from proving the prejudice prong of the Strickland test upon a showing that counsel was ‘burdened by an actual conflict of interest,’ that is, the conflict is one that ‘actually affected the adequacy of [defense counsel's] representation.’ " Taylor v. State , 428 Md. 386, 391, 51 A.3d 655 (2012) (quoting Cuyler v. Sullivan , 446 U.S. 335, 349–50, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (internal citation omitted)). If the defendant carries that burden, then "prejudice to the outcome of trial is presumed." Id.

Following Strickland , the United States Court of Appeals for the Fourth Circuit articulated a three-part test to determine when a conflict of interest of the sort identified in Sullivan is both "actual" and has an "adverse impact" upon the defendant's constitutional entitlement to effective assistance, therefore satisfying the Sullivan rule. See Mickens v. Taylor , 240 F.3d 348 (4th Cir. 2001), aff'd, Mickens v. Taylor , 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). Under the Fourth Circuit's test in Mickens , the defendant must establish: (1) a plausible alternative defense tactic that counsel could have pursued; (2) that the tactic was objectively reasonable under the circumstances; and (3) that there exists a link between the conflict and the failure to pursue the tactic. Id. at 361. This Court adopted the Mickens three-prong test in Taylor v. State , 428 Md. 386, 51 A.3d 655 (2012). The question asked in the matter now before us is whether the third prong of the Mickens test is satisfied if the convicted defendant establishes either: that the alternative defense strategy was inherently in conflict with counsel's other loyalties or interests; or that the alternative defense was forgone due to those other loyalties or interests.

This case arises from a petition for post-conviction relief filed by Petitioner, Yaw Poku Podieh, in the Circuit Court for Frederick County. Petitioner asserted that he did not receive effective assistance of counsel as required by the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights. The petition was based on, among other things, two issues now before this Court: (1) defense counsel's alleged conflict of interest with a police officer involved in the case; and (2) counsel's failure to inform Petitioner about the immigration consequences of pleading guilty to possession of heroin with intent to distribute. The post-conviction court granted Petitioner relief based on that court's finding an actual conflict of interest but denied relief on all other grounds. The State appealed the grant of relief on the conflict of interest issue, and Petitioner appealed the denial of relief on the immigration consequences issue. Reversing in part and affirming in part, the Court of Special Appeals held in an unreported opinion that neither the asserted conflict of interest nor the immigration advice amounted to ineffective assistance of counsel. We issued a writ of certiorari and now hold that defense counsel's conflict of interest rendered his representation of Petitioner constitutionally deficient under the Sixth Amendment and Article 21. Because we hold that Petitioner's counsel rendered ineffective assistance based on the conflict of interest, we need not, and consequently do not, address whether the immigration advice given to Petitioner was also constitutionally deficient.

I.Facts and Procedural History

Three cases form the foundation of the petition for post-conviction relief. Two are interrelated criminal cases stemming from a traffic stop of Petitioner and a subsequent search of his girlfriend's residence. The third is a civil suit against Petitioner's defense counsel that was related to a divorce proceeding involving the police officer who initiated the traffic stop.

A. Underlying Cases

1. The Traffic Stop Case

On February 10, 2015, Deputy Sheriff Michael David Ensor ("Deputy Ensor") stopped Petitioner for exceeding the posted speed limit. Upon approaching the vehicle, Deputy Ensor detected the odor of marijuana. Deputy Ensor asked Petitioner if he was in possession of marijuana, and Petitioner admitted to having "a little weed" in his pocket. Based on the odor and Petitioner's statement, Deputy Ensor conducted a search of Petitioner and the vehicle. The search revealed marijuana on Petitioner's person, two cellphones, and four small bags of heroin in the vehicle's center console. Deputy Ensor arrested Petitioner, and he was charged with possession of a controlled dangerous substance and possession of a controlled dangerous substance with intent to distribute. Petitioner hired John R. Discavage, Esquire, to represent him.

Following the traffic stop, Deputy Sheriff Brian Elliot ("Deputy Elliot") obtained a search warrant for the cellphones recovered from the vehicle search.¹ Text message exchanges on the cellphones indicated to Deputy Elliot that Petitioner was engaged in narcotics distribution. Additionally, Petitioner placed phone calls while he was detained in jail following the traffic stop, and recordings of those phone calls captured Petitioner discussing drugs, which Deputy Elliot believed to be either marijuana or heroin.

Following Petitioner's release from detention, Deputy Elliot obtained a GPS warrant for Petitioner's vehicle and tracked his whereabouts. On July 8, 2015, Deputy Elliot observed Petitioner dispose of garbage and conducted a "trash pull."² Deputy Elliot "recovered a small blunt containing suspected marijuana, an altered freezer bag that is commonly used to package narcotics, two calling cards which are also common with individuals using disposable ‘[d]rop’ phones for purposes of distributing narcotics, and loose cigar guts located throughout the bag of trash." A field test of the blunt returned positive for marijuana. On July 16, 2015, Deputy Elliot conducted a second trash pull at the residence of Brittney Sewell, Petitioner's girlfriend, and more evidence of marijuana possession was recovered. Deputy Elliot applied for a search warrant for Ms. Sewell's residence, where Petitioner spent his nights, and described the traffic stop case, electronic communications, and trash pulls in his affidavit.

2. The Search Warrant Case

On July 17, 2015, Deputy Elliot obtained a warrant to search Ms. Sewell's residence, and on July 21, 2015, he conducted the search. The search produced approximately ten grams of heroin in ten individually-wrapped bags, 4.1 grams of marijuana, a marijuana grinder, a digital scale, and $654 located throughout the residence. Petitioner was subsequently charged with possession of a controlled dangerous substance, possession of a controlled dangerous substance with intent to distribute, possession of drug paraphernalia, and possession of marijuana with intent to distribute. Petitioner hired Mr. Discavage to represent him in the search warrant case, as well as the traffic stop case.

3. The Civil Lawsuit Involving Mr. Discavage

Deputy Ensor and his then-wife, Ms. Ensor, divorced in 2012. Mr. Discavage jointly represented the Ensors in their divorce proceedings and handled their settlement agreement. Ms. Ensor filed a lawsuit against Mr. Discavage in March 2015 for negligence, breach of fiduciary duty, intentional misrepresentation, and negligent misrepresentation related to Mr. Discavage's handling of their divorce. The complaint alleged that Mr. Discavage favored Deputy Ensor in the divorce proceedings by understating Deputy Ensor's income or failing to verify his income. Ms. Ensor sought approximately $75,000 in damages. Discovery in the civil suit continued through early 2016, and the case was dismissed by stipulation on March 14, 2016.

B. Circuit Court Proceedings

Petitioner's traffic stop case was set for pre-trial conference on July 10, 2015. Mr. Discavage requested a continuance to resolve some of the immigration issues because Petitioner is not a United States citizen. The case was continued to August 7, 2015. On August 7, 2015, Mr. Discavage requested a second continuance in light of the search warrant case and attendant charges. The traffic stop case resumed on September 25, 2015, and Mr. Discavage and the Assistant State's Attorney in that case, Ms. Roldan, jointly requested that a plea hearing on the traffic stop case be set for the same day as the pre-trial conference for the search warrant case. The circuit court granted the request.

The traffic stop case resumed on November 16, 2015. At that time, Mr. Discavage requested another continuance because he and Mr. Craven, the Assistant State's Attorney in the search warrant case, were in the process of negotiating "some type of global...