This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1386

 

 

In the Matter of the Welfare of:

D.J.M.,

Child.

 

 

Filed August 14, 2007

Reversed and remanded

Lansing, Judge

 

St. Louis County District Court

File No. 69VI-JV-05-177, J4-01-150359

 

John Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant D.J.M.)

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Melanie S. Ford, St. Louis County Attorney, Sharon N. Chadwick, Assistant County Attorney, 300 South Fifth Avenue, Room 222, Virginia, MN 55792 (for respondent State of Minnesota)

 

            Considered and decided by Halbrooks, Presiding Judge; Toussaint, Chief Judge; and Lansing, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            The district court adjudicated DJM delinquent on three counts of criminal sexual conduct and consolidated the disposition of these adjudicated offenses with a probation-violation hearing on a previous sexual offense.  On appeal from the disposition, DJM argues that he was prejudiced by ineffective assistance of counsel on the probation violation and that the disposition order requiring him to register as a sex offender is unconstitutional.  Because DJM’s counsel had a conflict of interest that had an actual effect on his representation of DJM on the probation violation, we reverse and remand for a new probation-violation hearing and disposition hearing.

F A C T S

            DJM inappropriately touched and exposed himself to two boys in St. Louis County sometime in 2004.  DJM was fourteen years old at the time of the offenses, and the victims were five and seven years old.  The state charged DJM in July 2005 with five counts of criminal sexual conduct.  In addition, the state alleged that DJM violated the terms of the probation imposed as part of a stayed adjudication for inappropriately touching a younger boy in 2001.  Following a trial on the criminal-sexual-conduct charges, the district court found DJM guilty of three of the five counts.  The court ordered a predisposition investigation and a hearing at which the probation violation would also be addressed. 

            The Fetal Alcohol Diagnostic Program (FADP), Arrowhead Regional Corrections (ARC), and Range Mental Health Center (RMHC) each performed a portion of the predisposition investigation.  The FADP report found that DJM suffers from alcohol-related neurodevelopmental disorder and that DJM requires structured supervision with immediate consequences.  The ARC report recommended a 120-day inpatient treatment program at Arrowhead Juvenile Center and two years of probation.  RMHC, which operated the outpatient treatment program that DJM attended as part of his 2001 probation, recommended that DJM continue outpatient treatment while living with a foster family.  The RMHC report advised against DJM continuing to live with his grandmother because the two victims lived in the same area.  RMHC recommended inpatient treatment if foster care would not be available.   

            In advance of the disposition hearing, DJM’s trial counsel filed a motion for a new trial and to vacate the district court’s findings.  The court rejected the motions as untimely.  DJM’s counsel also filed a motion to stay adjudication of delinquency, arguing that the mandatory sex-offender registration that would stem from the adjudication would violate DJM’s constitutional rights.  The court denied the stay-of-adjudication request.

            At the disposition hearing DJM’s trial counsel disclosed that he was a member of RMHC’s board of directors.  DJM’s counsel stated that it would, therefore, be a conflict of interest for him to represent DJM on the state’s charge that DJM violated the terms of his 2001 probation by failing to participate successfully in the outpatient sex-offender program at RMHC.  DJM’s counsel suggested that, because DJM would admit that he also violated his probation by being charged with a new offense and having contact with children under the age of ten, the RMHC-related allegation could be dismissed as moot.  The prosecutor agreed, but reserved the ability to refer to DJM’s failure to complete the outpatient treatment program in her disposition argument.  The district court allowed the representation to continue and accepted DJM’s admissions. 

            In her disposition argument the prosecutor requested inpatient sex-offender treatment.  DJM’s counsel requested that DJM be allowed to continue in the RMHC outpatient treatment program.  The court ordered, in relevant part, 120 days of inpatient sex-offender treatment, two years of probation, and that DJM register as a sex offender.  DJM now appeals, arguing that he was denied effective assistance of counsel and that the sex-offender-registration statute is unconstitutional as applied to juveniles. 

D E C I S I O N

            We first address DJM’s contention that he received ineffective assistance of counsel because his attorney had a conflict of interest.  The claimant bears the burden of proof when bringing an ineffective-assistance-of-counsel claim.  State v. Miller, 666 N.W.2d 703, 716 (Minn. 2003).  Ordinarily the claimant must “demonstrate that counsel’s representation fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel’s errors.”  State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).  But when the claimant alleges that counsel’s effectiveness was undermined by a conflict of interest, he need not demonstrate prejudice if he is able to show that the conflict of interest actually affected his representation.  Cuyler v. Sullivan, 446 U.S. 335, 349-50, 100 S. Ct. 1708, 1719 (1980) (noting that once conflict is shown, prejudice is presumed); see also Gustafson v. State, 477 N.W.2d 709, 713 (Minn. 1991) (quoting Sullivan). 

            A conflict of interest exists if “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person, or by a personal interest of the lawyer.”  Minn. R. Prof. Conduct 1.7(a)(2) (emphasis added).  DJM’s attorney advised the court that he had a conflict of interest because of his relationship with Range Mental Health Center (RMHC).  Therefore, DJM need only show that the conflict “actually affected the adequacy of his representation” in order to obtain relief.  Sullivan, 446 U.S. at 349-50, 100 S. Ct. at 1719.  Representation is actually affected if “counsel was influenced in his basic strategic decisions.”  Wood v. Georgia, 450 U.S. 261, 272, 101 S. Ct. 1097, 1103 (1981).  Similarly, representation is actually affected if “the advocate’s conflicting obligations have effectively sealed his lips on crucial matters.”  Holloway v. Arkansas, 435 U.S. 475, 490, 98 S. Ct. 1173, 1181 (1978).

            The state alleged that DJM violated his 2001 probation by failing to comply with three requirements:  (1) no contact with children younger than ten years of age; (2) successful completion of outpatient sex-offender treatment at RMHC; and (3) no new offenses.  At the disposition hearing DJM’s trial counsel informed the district court that he could not address the second allegation because of his RMHC board membership.  DJM’s counsel then proposed a way around the conflict that the court permitted.  We recognize that DJM’s counsel’s efforts to neutralize the conflict were motivated by his intent to try to help DJM by continuing his representation and not requiring DJM to work with a new attorney.  In attempting to evade the conflict, however, DJM’s counsel “actually affected” the representation. 

            The state argues that DJM would not have benefited from challenging the RMHC outpatient treatment program because it would have undermined the RMHC report that recommended continued outpatient treatment.  But when a conflict of interest is present, the ordinary inquiry for prejudice is altered.  Sullivan, 446 U.S. at 349-50, 62 S. Ct. at 1719.  An attorney unaffiliated with RMHC would have been free to contest the allegation that DJM did not sufficiently participate in treatment at RMHC.  Instead, the attorney’s conflicting obligations “effectively sealed his lips on crucial matters.”  Holloway, 435 U.S. at 490, 98 S. Ct. at 1181.  That DJM’s attorney actively avoided the issue due to his conflict resulted in a violation of DJM’s Sixth Amendment rights.  Consequently, we must reverse and remand for a new probation-violation hearing.

            Because the district court combined the disposition hearing with the probation-violation hearing, the district court’s disposition on the new juvenile charges is also reversed and remanded.  Therefore, we do not reach DJM’s claim that requiring him to register as a sex offender is unconstitutional.  We note, however, that we have previously held that requiring juveniles to register as sex offenders does not violate their due process rights.  In re Welfare of C.D.N., 559 N.W.2d 431, 434 (Minn. App. 1997), review denied (Minn. May 20, 1997).  The recent statutory changes do not change this result.  We also note that the registration requirement does not deny DJM a right to a jury trial.  See C.D.N., 559 N.W.2d at 434 (holding that juveniles do not have right to jury trial).  Finally, the supreme court has previously held that the registration requirement is a civil regulation and not a component of a sentence.  Boutin v. LaFleur, 591 N.W.2d 711, 717 (Minn. 1999).  Consequently, the requirement would not interfere with the judicial function of imposing sentences or, as applied to this case, dispositions. 

            Reversed and remanded.