Commonwealth v. Bolduc

Brown, J.

(concurring). I fully concur with the majority’s conclusion that, at the time he entered his guilty plea, the defendant was denied the effective assistance of counsel. Unlike the majority, however, I also conclude that the ineffective assistance of counsel stemmed from a conflict of interest in his attorney’s representation of him and his two codefendants.

The Sixth Amendment to the United States Constitution mandates that an attorney give his client his undivided loyalty. Glasser v. United States, 315 U. S. 60, 70, 75-76 (1942). This is true whether counsel is court appointed or retained. United States v. Gaines, 529 F. 2d 1038, 1043 (7th Cir. 1976). Although there is some doubt about whether the Sixth Amendment would require a new trial where a nonprejudicial conflict exists (Common*128wealth v. Geraway, 364 Mass. 168, 174 [1973], and cases cited), the Supreme Judicial Court has held that justice may require the granting of a motion for a new trial under certain circumstances. Commonwealth v. Ger-away, supra.1 If an actual conflict of interest can be shown to exist, it may not be necessary to demonstrate that the conflict resulted in the loss of a substantial defense. Commonwealth v. Smith, 362 Mass. 782, 784-785 (1973) . Commonwealth v. Saferian, 366 Mass. 89, 98, n. 14 (1974) . “To determine the precise degree of prejudice sustained... is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” Glasser v. United States, 315 U. S. at 75-76.

In exercising the power to order a new trial, “we must concern ourselves primarily with the particular defendant and the particular facts.” Commonwealth v. Geraway, 364 Mass. at 184 (Tauro, C.J., and Braucher, J., dissenting). The facts of this case inexorably lead to the conclusion that the degree of conflict of interest on the part of the defendant’s counsel was such as virtually to deprive the defendant of any representation whatsoever.

The record indicates counsel’s willingness to sacrifice the defendant for the sake of the other two codefendants. At the brief meeting between counsel and the defendant on October 18 (held during the recess granted by the judge when it became apparent that the defendant was unaware of even the nature of the indictments against him), counsel told the defendant that he had nothing to lose by pleading guilty because he was already serving a life sentence. Moreover, counsel told the defendant that his failure to plead guilty might jeopardize his codefend*129ants’ chances for lighter sentences.2 Similar action by counsel representing multiple defendants has been held to be constitutionally defective. United States v. Truglio, 493 F. 2d 574, 580 (4th Cir. 1974). Counsel was only interested in getting the best possible deal for the two codefendants regardless of the cost to the defendant. See United States ex rel. Thompson v. Rundle, 294 F. Supp. 933, 935 (E.D. Pa. 1968); United States ex rel. Taylor v. Rundle, 305 F. Supp. 1036,1039 (E.D. Pa. 1969).

Finally, counsel’s repeated attempts to characterize the defendant as the moving force behind the “minor crime wave” that took place when the defendant escaped from jail indicate that his primary concern was to assist the codefendants. Gravitt v. United States, 523 F. 2d 1211, 1219 (5th Cir. 1975). United States ex rel. Thompson v. Rundle, supra. United States ex rel. Taylor v. Rundle, supra. Commonwealth v. Johnson, 223 Pa. Super. 307 (1973). Commonwealth v. Bracey, 224 Pa. Super. 294, 297 (1973) .3 The totality of the circumstances of the instant case make it apparent that the defendant received ineffective assistance of counsel because his counsel had divided loyalties.

*130I concur in the majority’s decision to remand this case to the motion judge to allow him to determine whether the defendant waived his right to bring this action. In making that determination, the motion judge should “indulge every reasonable presumption against the waiver of fundamental rights.” Glasser v. United States, 315 U. S. at 70. Johnson v. Zerbst, 304 U. S. 458, 464 (1938).

Although Geraway dealt with a conflict of interest in a trial setting, there is no difference in the standard to be applied in assessing a conflict of interest at trial and such a claim at sentencing after the entry of a guilty plea. United States v. Merlino, 391 F. Supp. 533, 535 (E.D. Pa. 1975).

Although counsel’s urging a defendant to plead guilty in order to help a codefendant receive a lesser sentence does not automatically result in rendering the defendant’s plea invalid as being a coerced plea (Commonwealth v. Balliro, 370 Mass. 585, 589-590 [1976]), it is a factor to be considered in determining if the defendant’s counsel had a conflict of interest that would result in the denial of the defendant’s right to effective assistance of counsel.

Dukes v. Warden, Connecticut State Prison, 406 U. S. 250 (1972), cited by the Commonwealth, is distinguishable from the instant case. In Dukes, counsel, in urging leniency on behalf of two of his clients, attempted to place the blame on the defendant whom he represented in an unrelated case. Id. at 254. The Supreme Court held that counsel did not induce the defendant to plead guilty in order to secure more favorable treatment for his other clients. The court also agreed with the Connecticut Supreme Court that the defendant had had a lengthy conversation with counsel prior to his guilty plea and that, on advice of counsel, the defendant had pleaded guilty in order to obtain the benefits of a plea bargain. Id. at 255-257. It is clear that Dukes does not present the same kind of conflict of interest that is present in the case at bar.