Podieh v. State

Yaw Poku Podieh v. State, No. 31, September Term, 2019 CONSTITUTIONAL LAW — INEFFECTIVE ASSISTANCE OF COUNSEL — ACTUAL CONFLICT OF INTEREST — PRESUMPTION OF PREJUDICE — The Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights guarantee criminal defendants the right to effective assistance of counsel. Effective assistance of counsel includes conflict-free representation. In this case, where defense counsel is personally involved in litigation, and a witness to that proceeding is also the arresting officer in counsel’s client’s unrelated criminal case, a conflict of interest exists. Under Cuyler v. Sullivan, 446 U.S. 335 (1980), an actual conflict of interest that adversely affects the representation is presumptively prejudicial.

In Taylor v. State, 428 Md. 386 (2012), we adopted the three-prong test from Mickens v. Taylor, 240 F.3d 348 (4th Cir. 2001), to determine when a conflict of interest satisfies the Sullivan rule. To satisfy the Mickens test, a petitioner must prove: (1) that there was a plausible alternative defense strategy that defense counsel might have pursued; (2) which was objectively reasonable under the facts of the case known to defense counsel; and (3) that defense counsel’s failure to pursue the strategy was linked to the conflict of interest. As a matter of first impression, the Court holds that to determine when a link exists under the third prong of Mickens, a petitioner must demonstrate 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. The Court holds that Petitioner satisfied his burden under Mickens and demonstrated that his defense counsel labored under an actual conflict of interest that adversely affected the representation.

Circuit Court for Frederick County Case No. 10-K-15-057002 Argued: December 10, 2019 IN THE COURT OF APPEALS OF MARYLAND No. 31 September Term, 2019 YAW POKU PODIEH v. STATE OF MARYLAND Barbera, C.J., McDonald Watts Hotten Getty Booth Adkins, Sally D., (Senior Judge, Specially Assigned) JJ. Opinion by Barbera, C.J. Filed: August 14, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-08-14 10:43-04:00 Suzanne C. Johnson, Clerk 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 (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 . 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 (2012) (quoting Cuyler v. Sullivan, 446 U.S. 335 , 349–50 (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 (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 (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 2 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 3 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 1 It is not clear from the record whether Deputy Ensor was involved in Deputy Elliott’s obtaining and executing the warrants in the search warrant case. We are left to surmise that the traffic stop performed by Deputy Ensor precipitated the subsequent searches performed by Deputy Elliott. If either or both of Petitioner’s criminal cases had gone to trial, Deputy Ensor would likely have been called to testify about his encounter with Petitioner at the traffic stop. 2 Garbage left in public or beside a street is not protected against warrantless searches and seizures under the Fourth Amendment.

See California v. Greenwood, 486 U.S. 35, 40 (1988). 4 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 5 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 agreement” on the traffic stop case and the search warrant case. On November 23, 2015, Petitioner entered a conditional Alford plea in the traffic stop case to possession of a controlled dangerous substance, which was contingent upon a global resolution of both the traffic stop case and the search warrant case. It was contemplated that if Petitioner and the State reached a global resolution of the two cases, Petitioner would withdraw his Alford plea and the State would enter nolle prosequi on the 6 charges from the traffic stop case. The State set forth the facts it would have proven had the traffic stop case gone to trial.

Deputy Ensor would have been called to testify about initiating the traffic stop, detecting the odor of marijuana, searching Petitioner and the vehicle, and recovering four bags of heroin. The sentencing hearing on the traffic stop case was scheduled to occur on January 8, 2016. A few days before that scheduled hearing, Mr. Discavage received a plea offer and additional discovery materials from the State, prompting him to request a continuance of the sentencing hearing. At that time, Mr. Discavage explained to the court that the continuance was necessary because the global plea was still being negotiated and there was a “potential conflict.” Assistant State’s Attorney Craven was not at the sentencing hearing.

The following colloquy occurred out of Petitioner’s earshot: The Court: What’s the other case? Mr. Discavage: The other case is . . . where’s the case number, it’s . . . 57002. The Court: Five seven? Mr. Discavage: Zero, zero, two.

Because the additional discovery poses a potential conflict. I don’t know that I need to deal with that, but . . . The Court: Not without Mr. Craven here. Mr. Discavage: A personal conflict, a personal conflict with one of the witnesses that’s involved in this case.

So I’d, that’s the– The Court: Well, let’s– Mr. Discavage: –additional . . . 7 The Court: Why don’t you and Mr. Craven go talk? Mr. Discavage: Yeah. We’re gonna intend, we’re gonna keep talking between now and Monday and hopefully we– The Court: And about the problem too– Mr. Discavage: –can come to some type of resolution. The Court: All right.

There is no indication in the record that Mr. Discavage informed Mr. Craven about the “potential” conflict of interest or took any further action on the matter. On January 12, 2016, Petitioner pleaded guilty in the search warrant case (case number 57002) to possession with intent to distribute a controlled dangerous substance. As a result, the conditional Alford plea was withdrawn, and the State entered nolle prosequi on all the other charges from both the traffic stop case and the search warrant case. Petitioner was sentenced to ten years’ incarceration with all but 179 days suspended.

Once convicted and sentenced, Petitioner became automatically deportable. See 8 U.S.C. § 1227 (a) (“Any alien . . . in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien … [has been] convicted of an aggravated felony at any time after admission . . .”). To avoid deportation during the pendency of his post-conviction proceedings, Petitioner filed a motion for modification of sentence. The court granted the motion and sentenced Petitioner to ten years’ incarceration with all but eighteen months suspended. 8 C. Post-Conviction Proceedings and Appeal Petitioner, through new defense counsel, Ms. Michelle Martz, filed a petition for post-conviction relief on August 1, 2016.

Petitioner alleged seven grounds in support of the claim that he had received ineffective assistance of counsel, two of which he raises here: (1) Mr. Discavage and Petitioner’s separate immigration counsel, Mary Ann Shoff, misadvised him of the immigration consequences of his plea agreement; and (2) Mr. Discavage failed to disclose a personal conflict of interest. On January 18 and 19, 2017, the Circuit Court for Frederick County held a hearing on the petition for post-conviction relief. Petitioner first testified about the immigration advice he was given. Petitioner claimed that neither Mr. Discavage nor Ms. Shoff advised him that pleading guilty to possession with intent to distribute heroin is an aggravated felony.

Aggravated felonies lead to automatic deportation without the opportunity to have a hearing. 8 U.S.C. § 1229b(a)(3) (“The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien . . . has not been convicted of an aggravated felony.”). Petitioner then testified about Mr. Discavage’s alleged conflict of interest. Petitioner testified that Mr. Discavage had disclosed to the circuit court at the anticipated sentencing hearing on January 8, 2016, that there was a potential conflict of interest in Petitioner’s case. However, Mr. Discavage did not inform Petitioner of that conflict.

It was not until Petitioner received a copy of the circuit court transcripts that he became aware 9 of the conflict. Petitioner averred that the conflict of interest prevented Mr. Discavage from providing effective assistance of counsel. At the post-conviction hearing, Mr. Discavage revealed for the first time that the conflict of interest involved Deputy Ensor, the arresting officer in the traffic stop case.3 The following transpired on direct examination: Ms. Martz: What was your reasoning for, what was the conflict when you told Mr., when you told the judge that there was a personal conflict? Mr. Discavage: Conflict with a witness in a case that was being nolle prossed or that the State was dismissing.

They were not, that was the, that was the conflict. It was a, it was a separate case, separate and apart from this case. Ms. Martz: But who was the person that you had a conflict with that you determined wasn’t a conflict? Mr. Discavage: The pers – who is the person that I was considering potentially– Ms. Martz: Mmm-hmm– Mr. Discavage: –to be a conflict?

Deputy Ensor. Ms. Martz: Deputy Ensor. And Deputy Ensor was a, was a witness for the State? Mr. Discavage: Correct.

Ms. Martz: And was the arresting officer in the car stop case, correct? Mr. Discavage: Correct. 3 During her opening remarks, Petitioner’s new defense counsel explained that “Discavage still hasn’t really told me [what the conflict was], except that I believe inferentially he had . . . an interest in representing the seizing officer in this case.” 10 When questioned about the conflict of interest, Mr. Discavage posited that his relationship with Deputy Ensor posed a potential conflict, but the conflict never manifested because the traffic stop case did not go to trial. In his recitation of events, he testified that the plea offer in the search warrant case was received on January 5, 2016, and that three days later he informed the circuit court that additional discovery materials transmitted with the plea offer posed a personal conflict. Mr. Discavage further testified that he did not discuss the conflict with the court after the sentencing hearing on January 8, 2016.

Mr. Discavage also acknowledged that he never mentioned to Petitioner that he had a personal conflict of interest involving Deputy Ensor. In describing the nature of the relationship, Mr. Discavage explained that he represented Deputy Ensor in a divorce case several years prior to his representation of Petitioner. Although the divorce was finalized, “there was still potential litigation with the parties to that case” at the time Petitioner hired Mr. Discavage. The circuit court pressed Mr. Discavage on the issue: The Court: . . .

But anyway, the bottom line is you, you thought there was a conflict, you mentioned it. But that case where he was a witness got nolle prossed and therefore your belief was the conflict ended. Mr. Discavage: As, correct. As well as the civil case that was pending that was being dismissed.

The Court: Oh, really? So, okay, so the civil case got dismissed, the other one got nolle prossed. Conflict ends. Mr. Discavage: Correct– 11 The Court: In your opinion.

Petitioner’s counsel questioned Mr. Discavage regarding his failure to inform Petitioner of the conflict. Mr. Discavage responded that if the traffic stop case went to trial, he would have brought the conflict to Petitioner’s attention. Mr. Discavage explained that because “the case was dismissed it wasn’t an issue that [they] had to deal with.” Mr. Discavage also testified that the search warrant case―in which Deputy Ensor was not directly involved―was at the forefront of the plea negotiations. Additionally, Deputy Ensor was not a party to the separate civil suit against Mr. Discavage.

Because the conflict of interest issue was not exposed until the post-conviction hearing, the court reserved making a ruling on the issue to allow the parties to investigate the conflict. The post-conviction hearing resumed on February 21, 2017. The investigation revealed that Deputy Ensor’s ex-wife, Sarah Ensor, sued Mr. Discavage on March 17, 2015, for issues arising from Mr. Discavage’s representation of the Ensors in their divorce proceedings. Discovery in the lawsuit against Mr. Discavage overlapped with Mr. Discavage’s representation of Petitioner and was ongoing as late as January 2016.

Additionally, prior to filing the case against Mr. Discavage, Ms. Ensor filed a Petition to Modify Custody and Child Support on June 11, 2014. Deputy Ensor retained Mr. Discavage to represent him in that proceeding on July 31, 2014. Ms. Ensor, through counsel, objected to Mr. Discavage representing Deputy Ensor in the custody and child support proceeding. Ms. Ensor argued that Mr. Discavage’s having previously represented the Ensors in their divorce created a conflict of interest.

Mr. Discavage withdrew from 12 representation. Privilege logs divulge, however, that Mr. Discavage remained in contact with Deputy Ensor and his subsequent counsel at least through March 31, 2015. Petitioner retained Mr. Discavage in February 2015. D. The Post-Conviction Court’s Decision In a written order dated April 4, 2017, the court granted Petitioner post-conviction relief.

The court based its decision on its finding that Mr. Discavage had labored under a conflict of interest resulting from, at the pertinent time, his simultaneous involvement in two separate matters, both of which involved Deputy Ensor. The court found that at the same time Mr. Discavage was the named defendant in Ms. Ensor’s then-pending lawsuit―in which Deputy Ensor likely would have been a fact witness―he was also Petitioner’s defense counsel in the two criminal cases. The court reasoned that, but for the “global resolution” of those cases, it was virtually inevitable that Mr. Discavage would have filed both a motion to suppress the evidence obtained in the traffic stop case and a similar motion in the search warrant case. In comparing the timeline of the civil suit against Mr. Discavage to the timeline in Petitioner’s criminal cases, the court found that key events in those cases overlapped.

For example, Ms. Ensor’s complaint against Mr. Discavage was filed in March 2015, and the traffic stop case was transferred to circuit court from district court in May 2015 following a jury trial prayer. In October 2015, the court in the civil suit issued a scheduling order. The following month, Petitioner entered a conditional plea in the traffic stop case. On January 7, 2016, Ms. Ensor filed a Motion to Quash Subpoena and for Protective Order. 13 The next day, Mr. Discavage alluded to the court at Petitioner’s sentencing hearing on the traffic stop case that there was “a potential conflict.” Petitioner accepted the global plea in the traffic stop case and search warrant case on January 12, 2016, and the civil suit was dismissed by stipulation two months later.

Based on the foregoing, the post-conviction court found that an actual conflict of interest existed. The court emphasized that the ongoing relationship between Mr. Discavage and Deputy Ensor formed the foundation of the conflict of interest: Deputy Ensor was subpoenaed to produce documents and give a deposition in the civil suit and likely would have been a fact witness. The court found that “during the time Mr. Discavage was representing Petitioner, Mr. Discavage was engaged in litigation where maintaining a positive [rapport] with Deputy Ensor was in Mr. Discavage’s best interest.” The court further found that because of that conflict, Mr. Discavage did not inform Petitioner about his connection to Deputy Ensor, nor did he present Petitioner with the opportunity to waive the conflict. The post-conviction court then turned to whether Petitioner was entitled to relief based on the conflict.

The court cited Sullivan, pertinent language from which the Supreme Court repeated in Strickland. The post-conviction court also looked to this Court’s decision in Taylor v. State, 428 Md. 386, 410 (2012). The court noted the presumed prejudice exception described in Sullivan, Strickland, and Taylor and understood from those cases that prejudice is presumed when a defendant alleges ineffective assistance of counsel based on an attorney’s personal conflict of interest, and that conflict affected the attorney’s 14 performance. The court further noted that this Court, in Taylor, adopted the three-part test set forth by the Fourth Circuit in Mickens v. Taylor to determine if the conflict of interest had an adverse impact on the representation, thus warranting a presumption of prejudice. 240 F.3d 348 (4th Cir. 2001).

Under Mickens, the petitioner must establish: (1) “a plausible alternative defense strategy or tactic that his defense counsel might have pursued;” (2) “that the alternative strategy or tactic was objectively reasonable under the facts of the case known to the attorney;” and (3) “that the defense counsel’s failure to pursue that strategy or tactic was linked to the actual conflict.” Id. at 361 . If that test is satisfied, then the petitioner is entitled to a presumption of prejudice. The post-conviction court found in the present case that Petitioner established those three elements. First, Mr. Discavage failed to file a motion to suppress evidence in either of Petitioner’s criminal cases.

Filing such a motion was an alternative, available tactic, thus satisfying the first element. Second, filing a motion would have been reasonable under the circumstances because such filings are the standard practice when a defendant is charged with drug possession.4 With regard to the third element of the Mickens test, the post-conviction court found that Mr. Discavage’s failure to file a suppression motion was linked to his conflict with 4 As we shall see later in this opinion, the parties appear not to quarrel seriously over the court’s determination of the first and second Mickens prongs. It is therefore upon the third prong of the Mickens test and its application to the instant matter that we devote our attention. 15 Deputy Ensor. The inherent conflict existed in simultaneously challenging the underlying traffic stop in the criminal case and relying on Deputy Ensor as a fact witness in Ms. Ensor’s civil suit against Mr. Discavage.

The court reasoned that in the two criminal cases against Petitioner, Mr. Discavage’s filing suppression motions almost invariably would have led, at a subsequent hearing, to Deputy Ensor testifying for the State and being subjected to cross-examination by Mr. Discavage. “Deputy Ensor was a witness in the case against Mr. Discavage, where Mr. Discavage would be counting on the very things he would place in question during cross-examination,” such as “his recollection of events, his judgments, and potentially his character.” Having determined that a conflict of interest existed, and that Petitioner met his burden under Mickens, as adopted in Taylor, the court granted the petition for post-conviction relief.5 E. The Court of Special Appeals’ Decision In an unreported opinion, the Court of Special Appeals reversed the decision of the post-conviction court and held that the conflict of interest was merely potential, not actual. State v. Podieh, No. 560, Sept. Term 2017, 2019 WL 1643777 (April 16, 2019). The intermediate appellate court determined that the conflict of interest was only potential, and therefore not entitled to a presumption of prejudice, because no evidence supported the finding that Mr. Discavage needed to maintain a positive rapport with Deputy Ensor. Id. at ⁹ .

Rather, the circuit court’s finding that an actual conflict of interest existed was conclusory. Id. at ¹⁰ . The Court of Special Appeals reiterated that “a ‘mere theoretical 5 The court denied the six remaining grounds for relief in the petition. 16 conflict of interest’ does not violate a defendant’s right to counsel.” Id. (quoting Catala v. State, 168 Md. App. 438, 460 (2006)).

The Court of Special Appeals further held that even if there was an actual conflict of interest, Petitioner did not satisfy the third prong of Mickens—that the alternative defense strategy and the conflict of interest were linked. Id. Contrary to the circuit court’s ruling, the Court of Special Appeals determined that refraining from filing a motion to suppress, or from pursuing any other defense strategy proposed by Petitioner during the post-conviction process, may have been a reasonable course of conduct under the circumstances. Id. at ¹¹.

The Court of Special Appeals reasoned that there was insufficient evidence in the record from which to infer that Mr. Discavage was concerned about Deputy Ensor providing damaging testimony as a fact witness in the civil suit, such that Mr. Discavage would avoid cross-examining Deputy Ensor in the traffic stop case. Id. at ⁹. Therefore, Petitioner did not prove by a preponderance of the evidence that a conflict of interest between Mr. Discavage and Deputy Ensor was linked to Mr. Discavage’s defense tactics. Id. at ¹².

We issued a writ of certiorari to address Petitioner’s claims of error on the part of the Court of Special Appeals, and hereby reverse the decision of that court.

II

Standard of Review A post-conviction court’s finding on an ineffective assistance of counsel claim poses a mixed question of law and fact. State v. Syed, 463 Md. 60, 73 (2019). The factual 17 findings are reviewed for clear error, and the legal conclusions are reviewed de novo. Newton v. State, 455 Md. 341 , 351–52 (2017).

III

Discussion To resolve the ineffective assistance of counsel claim in this case, we must determine if there was an actual conflict of interest that adversely affected Mr. Discavage’s representation of Petitioner in the two criminal cases, thereby rendering constitutionally ineffective assistance of counsel. Criminal defendants are guaranteed the right to counsel under the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights.6 The right to counsel means “the right to effective assistance of counsel.” Duvall v. State, 399 Md. 210, 221 (2007) (quoting Strickland, 466 U.S. at 686 ) (internal quotation marks omitted). 6 The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” The right is applicable to the states through the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335 , 343–44 (1963). Article 21 of the Maryland Declaration of Rights declares: That in all criminal prosecutions, every man hath a right to be informed of the accusation against him; to have a copy of the Indictment, or charge, in due time (if required) to prepare for his defence; to be allowed counsel; to be confronted with the witnesses against him; to have process for his witnesses; to examine the witnesses for and against him on oath; and to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty. 18 A. Presumption of Prejudice Under Strickland and Sullivan In the seminal case Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth a two-part test to determine when counsel’s actions violate a defendant’s constitutional right to effective assistance of counsel.

First, the defendant bears the burden of showing “that counsel’s performance was deficient.” Id. at 687 . To prevail on the “performance” prong, the defendant must demonstrate “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Counsel performs deficiently when “the facts of the particular case, viewed as of the time of