ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN F. STROUD, JR., CHIEF JUDGE

DIVISION IV

ANDRE HUNTER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-9

October 9, 2002

APPEAL FROM THE ST. FRANCIS

COUNTY CIRCUIT COURT

[CR-95-526, CR-92-228]

HONORABLE HARVEY LEE YATES,

CIRCUIT JUDGE

AFFIRMED

The sole issue in this appeal is whether the appellant was denied his Sixth Amendment right to counsel under the United States Constitution because the trial court did not inquire into his assertion that the public defender had a conflict in his representation of appellant. We affirm.

Andre Hunter was present in court for a probation revocation hearing on May 23, 2001. At that time, prior to the start of the revocation hearing, the following colloquy occurred between appellant's attorney, public defender Dan McGill, and the trial judge:

DEFENSE COUNSEL: Your Honor, I would like for the record to reflect one more thing, that Mr. Hunter does not want me to represent him. He says there is personal conflict; I'm not sure what that is, but he says there is personal conflict. I want to make the court aware of that.

TRIAL COURT: The court is aware of. As far as the court is concerned, you are still his attorney.

The revocation hearing proceeded, appellant's probation was revoked, and appellant was sentenced to a term of twenty years in the Arkansas Department of Correction. This appeal followed.

In Price v. State, 347 Ark. 708, 66 S.W.3d 653 (2002), decided February 21, 2002, our supreme court rejected the appellant's argument that his defense counsel had a conflict of interest because counsel had won the prosecuting attorney's election approximately two weeks prior to the commencement of his trial. In that case, the supreme court set forth the requirements for prevailing on a conflict-of-interest argument:

Prejudice will be presumed from a counsel's conflict of interest only when the defendant demonstrates that counsel actively represented conflicting interests. Cuyler v. Sullivan, 446 U.S. 335 (1980); Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995). In Cuyler, the United States Supreme Court set forth the applicable standard for assessing whether a conflict of interest gives rise to presumptive prejudice:

[A] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.

Cuyler, 446 U.S. at 348-50 (citing Holloway v. Arkansas, 435 U.S. 475 (1978); Glasser v. U.S., 315 U.S. 60 (1942)) (emphasis added). The adverse effect on counsel's performance must be real and have a demonstrable detrimental effect, and not merely have some abstract or theoretical effect. McCuen v. State, 328 Ark. 46, 941 S.W.2d 397 (1997); Johnson v. State, supra; Simmons v. Lockhart, 915 F.2d 372 (8^th Cir. 1990). A defendant is not entitled to relief under the Cuyler test unless he satisfies both the conflict and deficient performance prongs of the test. Johnson v. State, supra; Salam v. Lockhart, 874 F.2d 525 (8^th Cir. 1989) (citing Lightborne v. Dugger, 829 F.2d 1012 (11^th Cir. 1987)). The defendant bears the burden of proving a conflict of interest on the part of his counsel as well as deficient performance. Johnson v. State, supra; Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988).

Price, 347 Ark. at 721, 66 S.W.3d at 661.

In Mickens v. Taylor, ___ U.S. ___, 122 S.Ct. 1237 (2002), decided by the United States Supreme Court on March 27, 2002, petitioner Mickens alleged that he was denied effective assistance of counsel because one of his court-appointed attorneys had a conflict of interest. Although not divulged by the attorney, it was discovered that the attorney was representing Mickens's victim, Timothy Hall, on assault and concealed-weapons charges at the time Hall was murdered by Mickens. In rejecting this argument, the United States Supreme Court held:

Lest today's holding be misconstrued, we note that the only question presented was the effect of a trial court's failure to inquire into a potential conflict upon the [Cuyler v.] Sullivan rule that deficient performance of counsel must be shown. The case was presented and argued on the assumption that (absent some exception for failure to inquire) Sullivan would be applicable - requiring a showing of defective performance, but not requiring in addition (as Strickland does in other ineffectiveness-of-counsel cases), a showing of probable effect upon the outcome of trial. That assumption was not unreasonable in light of the holdings of Courts of Appeals, which have applied Sullivan "unblinkingly" to "all kinds of alleged attorney ethical conflicts[.]". . .

It must be said, however, that the language of Sullivan itself does not clearly establish, or indeed even support, such expansive application. "[U]ntil," it said, "a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance."

___ U.S. at ___, 122 S. Ct. at 1245 (citing Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)).

In Townsend v. State, ___ Ark. ___, ___ S.W.3d ___ (September 26, 2002)1, a case decided by our supreme court on the issue of conflict-of -interest inquiry since the Mickensdecision, the court followed the Mickens requirement that actual prejudice must be demonstrated to require reversal. The court distinguished Mickens from the exception set forth in Holloway v. Arkansas, 435 U.S. 475 (1978), which held that prejudice will be presumed when defense counsel is forced to represent co-defendants over a timely objection without further inquiry by the trial court.

In the present case, appellant did not even apprise the trial court of the nature of the conflict; therefore, he has failed to show that his counsel had a conflict of interest, much less that defense counsel actively represented conflicting interests as required by Mickens, supra, Townsend, supra, and Price, supra. Even if such a conflict existed, appellant has certainly not shown that it had a detrimental effect on his counsel's representation of him. A review of the record indicates that appellant's probation was revoked based upon the testimony of Shavon Sisk that appellant assaulted her while she was pregnant with his child, bit her on her breast and on both sides of her face, and caused other injuries.

Appellant has failed to meet his burden of proving that he did not receive effective assistance of counsel.

Affirmed.

Crabtree and Baker, JJ., agree.

1 In that case, the supreme court specifically overruled Townsend v. State, 76 Ark. App. 371, 66 S.W.3d 666 (2002), to the extent that it was inconsistent with that opinion.