Sola-Morales v. State

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NOT DESIGNATED FOR PUBLICATION

No. 118,451


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

SANTIAGO SOLA-MORALES,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion filed November 15,
2019. Affirmed.

Kristen B. Patty, of Wichita, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before ATCHESON, P.J., MALONE and LEBEN, JJ.

ATCHESON, J.: This appeal is the latest chapter in Santiago Sola-Morales' original
habeas corpus action challenging his conviction for voluntary manslaughter in a 2006
jury trial in Sedgwick County District Court. Five years after the guilty verdict, we
affirmed the district court's denial of Sola-Morales' motion for relief under K.S.A. 60-
1507 without an evidentiary hearing. Sola-Morales v. State, No. 104,388, 2011 WL
4440414 (Kan. App. 2011) (unpublished opinion). On review, the Kansas Supreme Court
reversed and remanded the motion to the district court for an evidentiary hearing on two
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issues arising from Roger Falk's performance as Sola-Morales' lawyer leading up to and
during the jury trial: (1) The failure to call Stephen Peterson as a witness at trial; and (2)
whether a series of trial continuances that Falk obtained and a motion to dismiss that
Sola-Morales personally filed created an actual conflict between him and Falk and, if so,
what effect that may have had on the quality of the legal representation. Sola-Morales v.
State, 300 Kan. 875, 898-99, 335 P.3d 1162 (2014).

The district court held an evidentiary hearing in June 2015 and, after a request for
more detailed findings, entered a lengthy journal entry in May 2017 denying Sola-
Morales any relief. Sola-Morales has appealed, now bringing his habeas corpus challenge
to us for a second time. As we explain, Sola-Morales has effectively abandoned his claim
regarding Peterson, and the district court's factual findings, including credibility
determinations, undercut his claim rooted in the continuances and the motion to dismiss.
Even if the dispute about the continuances and the motion created an actual conflict
between Sola-Morales and Falk, that would not have translated into legal prejudice
requiring reversal of the jury verdict. We, therefore, affirm the district court.

FACTUAL AND PROCEDURAL HISTORY

The extended history of the underlying direct criminal case and this 60-1507
proceeding belie the comparatively straightforward disposition of the two issues the
Kansas Supreme Court identified and the district court addressed on remand, especially
as we now consider them on appellate review. We outline that background as necessary
to place our discussion in context.

In the criminal case, the State charged Sola-Morales with intentional second-
degree murder in the March 2005 shooting of Frank Sibat. Sibat was fatally shot once in
the chest in the living room of his Wichita home. Police investigators found living room
furniture broken and in disarray, consistent with a physical struggle. Sibat had numerous
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injuries indicative of an extended fight or beating. At trial, the forensic pathologist who
autopsied Sibat's body testified that the fatal shot would have been fired from at least
several feet away given the absence of stippling on the body and of any other gunpowder
residue. Postmortem testing showed Sibat had alcohol and cocaine in his system when he
died.

Immediately after the shooting, Sola-Morales left Wichita. The next morning the
Wichita police received information that Sola-Morales was involved in a shooting and
had boarded a bus for Miami. Based on that tip, the Wichita police had authorities in
Nashville, Tennessee, take Sola-Morales into custody at the bus station there. Detectives
from the Wichita police department questioned Sola-Morales in Nashville before
transporting him back. Sola-Morales initially told the detectives he had been at Sibat's
home. He said he and Sibat had been drinking for several hours, and while he was in the
bathroom, a man he knew as Rubin arrived. According to Sola-Morales, Rubin pointed a
handgun at Sibat and fired. Rubin then tried to shoot Sola-Morales but the gun jammed or
misfired. And Sola-Morales told the detectives Rubin fled.

One of the detectives commented on a 4-inch scratch on Sola-Morales' neck. Sola-
Morales explained he had leaned over Sibat, who grabbed him in an effort to get up and
go after Rubin. Although Sibat had been shot, Sola-Morales told the detectives he
concluded the wound was not especially serious. He said he then went home, told his
wife he was in trouble, disposed of the clothes he had been wearing, and went to work.
According to Sola-Morales, he told a coworker what had happened, and the coworker
later drove him to the bus station. Sola-Morales advised the detectives he had no injuries
other than the scratch.

After a short break, the detectives told Sola-Morales the account he had just given
them didn't fit with the information they had received. Sola-Morales then offered a
second version in which Sibat came at him when he returned from the bathroom. The two
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fought, and Sibat reached for a handgun he had in the waistband of his pants. In this
version, Sola-Morales and Sibat were on the floor wrestling for control of the gun when it
discharged, fatally injuring Sibat. Sola-Morales said he took the gun and left. The rest of
the second narrative basically matched the first with the added detail that Sola-Morales
also disposed of the handgun.

On the trip back from Nashville to Wichita, Sola-Morales offered the detectives a
third version of the shooting. He told the detectives Sibat drew the handgun and pointed it
at him. But he said he was able to wrestle the gun away from Sibat and to step back. Sibat
then said he intended to kill Sola-Morales and began moving forward. Sola-Morales
explained he fired one shot ostensibly in self-defense. Again, Sola-Morales said he left
with the gun and later got rid of it.

During the trial in late March 2006, the State had the lead detective tell the jury
about all three of Sola-Morales' versions of the shooting and describe his appearance at
the time, including the scratch on his neck. Investigators were never able to find the
handgun or the clothing Sola-Morales said he discarded. Sola-Morales' coworker testified
at trial during the State's case. The coworker told the jury Sola-Morales first said he had
killed a man but later said he had only injured him. According to the coworker, Sola-
Morales explained there was a fight over a gun and the other man got shot.

Sola-Morales did not testify in his own defense at the criminal trial, and Falk
presented no other witnesses. The jury convicted Sola-Morales of the lesser crime of
voluntary manslaughter.

At a later hearing, the district court ordered Sola-Morales to serve 216 months in
prison, a standard guidelines sentence based on his criminal history. Sola-Morales filed a
direct appeal, and this court affirmed the conviction and prison sentence. State v. Sola-
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Morales, No. 97,011, 2008 WL 2510154 (Kan. App. 2008) (unpublished opinion). He
then timely filed his habeas corpus motion under K.S.A. 60-1507.

We now double back to fill in the procedural markers bearing on the issues before
us in this appeal. After the district court appointed Falk to represent Sola-Morales in the
underlying criminal case in April 2005, he delegated significant responsibilities to
another lawyer in his office. When that lawyer left the office later in the year, Falk
resumed full representation of Sola-Morales. In the meantime, the public defender office
serving Sedgwick County was overextended with the representation of a man charged
(and later convicted) as the notorious serial killer BTK. To help alleviate that situation,
the agency asked and Falk agreed to take appointments in about half a dozen major
felony cases. Falk's wife was later diagnosed with cancer in 2005 and underwent surgery
and received other treatment from then through Sola-Morales' jury trial.

Falk requested and received six continuances of Sola-Morales' trial date that
spanned late June 2005 to late March 2006. Everybody agrees the State requested no
continuances of the trial during that period. The circumstances surrounding the six
continuances are at the center of Sola-Morales' complaint that Falk had a conflict of
interest compromising their lawyer-client relationship and impairing the representation he
received during the trial.

Even under the best conditions, reconstructing those circumstances at the 60-1507
hearing—some nine years later—would have been challenging. In this case, the challenge
was compounded because Falk could produce only a fragment of his office file on Sola-
Morales' criminal case. Some of the file had been created and stored electronically and
was later lost in a computer crash. Much of the paper file had been archived without
being catalogued and could not be found. The hearing transcript suggests Falk had some
remnants from his file and Sola-Morales had copies of filings and other materials Falk
had provided to him years earlier. At the 60-1507 hearing, Falk acknowledged he did not
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have a detailed recollection of his communications with Sola-Morales leading up to the
jury trial and had few documents to review to refresh his memory.

Before the jury trial, Sola-Morales was detained at the Sedgwick County jail. Falk
does not speak Spanish, and he did not consider Sola-Morales to be particularly fluent in
English. So they typically communicated using a translator. Falk testified that as a result,
he rarely spoke to Sola-Morales by telephone and relied on face-to-face meetings at the
jail or relaying general information through Jackie Duarte, Sola-Morales' bilingual wife.
Falk testified that he believed he spoke with Sola-Morales about each of the six
continuances and explained he requested them because of his overall caseload. When
Falk was shown visitor logs from the jail indicating he had not seen Sola-Morales at
times corresponding to the requested continuances, he deferred to the accuracy of those
records.

At the 60-1507 hearing, Sola-Morales admitted as evidence letters from Falk's
office to him dated May 6, 2005; June 21, 2005; December 12, 2005; and February 10,
2006. The first three are form letters stating that the current trial date had been continued
and informing Sola-Morales of the new trial date. Each letter uses the passive voice to
refer to the continuance—"your trial has been continued"—and, therefore, does not
indicate whether the State or Falk requested the additional time. The last letter included
an additional sentence stating Falk was starting a jury trial in a rape case on the same date
that Sola-Morales' trial had been scheduled, so he needed to continue Sola-Morales' trial.

On February 21, 2006, Sola-Morales filed a pro se motion to dismiss the criminal
case on the grounds the State received continuances that violated his statutory speedy
trial rights under K.S.A. 22-3402. The motion refers generically to the trial continuances
purportedly granted the State and otherwise largely recites the statutory language. The
motion mentions a violation of Sola-Morales' constitutional right to a speedy trial
preserved in the Sixth Amendment to the United States Constitution but does not
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otherwise argue that claim. The record in the criminal case shows the motion to dismiss
was withdrawn before trial, so the district court never ruled on it.

The 60-1507 hearing produced conflicting accounts of this procedural history.
Falk testified that he never told Sola-Morales the State continued the trial settings. Falk
said he and Sola-Morales discussed the pro se motion to dismiss. According to Falk, he
explained to Sola-Morales the motion was meritless because the State hadn't requested
the continuances. Falk testified that after their discussion, Sola-Morales authorized him to
withdraw the motion without a hearing.

Sola-Morales testified that Falk had told him the State asked for the trial
continuances. Sola-Morales then explained that another inmate helped him draft the
motion to dismiss, and they relied, in part, on the letters from Falk's office in concluding
the State had sought and received continuances. Sola-Morales testified he was brought to
a holding cell for a hearing on his motion to dismiss but never appeared in court and Falk
later told him the district court had denied the motion. Sola-Morales said he did not
consent to withdrawing the motion to dismiss.

At the 60-1507 hearing, Sola-Morales never testified that he instructed Falk to
oppose any trial continuances or to insist on an immediate trial setting. Nor did he testify
that he personally would have opposed any or all of the continuances Falk requested if he
had been present in the district court. Sola-Morales did testify that had he known Falk
would request multiple continuances, he would have asked the district court to appoint
another lawyer to represent him.

We turn to the matter of Peterson as a possible trial witness. The record shows
Falk obtained an order from the district court to transport Peterson from the state prison
in El Dorado to the Sedgwick County jail so he could testify as a witness during the trial.
At a hearing before Peterson was to appear, Falk represented to the district court he
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intended to have Peterson testify about Sibat's violent character by describing specific
instances of conduct. The State objected, and the district court ruled that specific instance
testimony was inadmissible to prove a character trait, such as a violent disposition. The
district court did not preclude opinion or reputation evidence about Sibat's character. See
K.S.A. 60-447. In light of that ruling, Falk did not call Peterson as a witness during the
jury trial. Sola-Morales challenged the exclusion of Peterson's specific instance testimony
in his direct appeal in the criminal case. We affirmed the ruling based on settled
precedent. Sola-Morales, 2008 WL 2510154, at *5-6.

At the 60-1507 hearing, Falk testified that he decided against calling Peterson as a
witness solely to offer opinion or reputation evidence about Sibat's character, since other
trial evidence suggested Sibat had a violent disposition. Peterson did not appear at the 60-
1507 hearing to establish what he, in fact, might have testified to if he had been called as
a witness in the criminal case.

In a short bench ruling at the conclusion of the hearing, the district court
characterized Falk's decision against calling Peterson as a trial witness as a reasoned
strategic choice. Taking up the second issue, the district court identified "a conflict"
between Sola-Morales as a result of their "lack of communication on continuances." That
lack of communication and the resulting conflict encompassed Sola-Morales' inability to
voice any objection to the continuances in open court. The district court declined to label
"the lack of regular communication" an ethical violation and concluded Falk's handling of
the case did not deprive Sola-Morales of a fair trial. After receiving written submissions
from Sola-Morales and the State, the district court issued a two-page journal entry in May
2016 denying Sola-Morales relief. Without any real analysis, the district court reiterated
that Falk did not provide constitutionally ineffective legal representation in failing to
communicate with Sola-Morales about the trial continuances or in deciding against
calling Peterson as a trial witness.

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Sola-Morales filed a motion to alter or amend the district court's judgment coupled
with a request for more detailed findings and conclusions. The district court heard
argument from the lawyers in December 2016 and requested additional written
submissions from the parties. Sola-Morales' lawyer filed a response in March 2017, and
the State responded in May 2017. Ten days later, the district court filed a nine-page
journal entry that in all material respects tracked the State's submission word for word.

In that journal entry, the district court—borrowing the State's language—explicitly
addressed and resolved the conflicting testimony from Sola-Morales and Falk about the
reasons given for the continuances and the handling of the pro se motion to dismiss for a
speedy trial violation. The district court found Sola-Morales failed to establish that Falk
lied about the reasons for the continuance or the withdrawal of the motion. On that point,
the district court stated: "Falk's testimony . . . is more credible than the evidence
presented by movant." That evidence, of course, consisted principally of Sola-Morales'
own testimony at the 60-1507 hearing. The district court acknowledged that Falk was
mistaken in testifying that he spoke to Sola-Morales about each of the six continuances—
an error the district court attributed to the nine-year lapse between the events and the
hearing. The district court rejected that mistaken testimony as material evidence of
"malfeasance by Falk." The district court recognized that Falk "did not regularly
communicate with [Sola-Morales] about each continuance" and characterized that as "a
potential conflict of interest," thus softening what it had said in the bench ruling and the
earlier journal entry. The district court also restated that Falk's decision against calling
Peterson as a witness entailed a reasoned strategic call.

The district court denied Sola-Morales relief. And he has appealed that ruling.


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LEGAL ANALYSIS

1. Peterson as a Trial Witness

We first take up the matter of Peterson as a potential trial witness. The point is
governed by the general legal principles applicable to habeas corpus relief under K.S.A.
60-1507. When we review the denial of a 60-1507 motion after a full evidentiary hearing,
we accept the district court's findings of fact to the extent they are supported with
substantial competent evidence. But we exercise unlimited review of the determinative
legal issues. Bellamy v. State, 285 Kan. 346, 355, 172 P.3d 10 (2007).

To prevail on this aspect of his 60-1507 motion, Sola-Morales must show both that
Falk's legal representation fell below the objective standard of reasonable competence
guaranteed by the Sixth Amendment right to counsel and that absent the substandard
lawyering there probably would have been a different outcome in the criminal case.
Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984); Sola-Morales, 300 Kan. at 882; see Chamberlain v. State, 236 Kan. 650, Syl. ¶¶
3, 4, 694 P.2d 468 (1985) (adopting and stating Strickland test for ineffective assistance).
A reasonable probability of a different outcome "undermine[s] confidence" in the result
and marks the criminal proceeding as fundamentally unfair. See Strickland, 466 U.S. at
694. Sola-Morales, then, must prove both constitutionally inadequate representation and
sufficient prejudice attributable to that representation to materially question the voluntary
manslaughter conviction.

As the United States Supreme Court and the Kansas Supreme Court have stressed,
review of the representation should be deferential and hindsight criticism tempered lest
the evaluation of a lawyer's performance be unduly colored by lack of success
notwithstanding demonstrable competence. See Strickland, 466 U.S. at 689-90; Holmes
v. State, 292 Kan. 271, 275, 252 P.3d 573 (2011). Rarely should a lawyer's representation
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be considered substandard when he or she investigates the client's circumstances and then
makes a deliberate strategic choice among arguably suitable options. Strickland, 466 U.S.
at 690-91. Whether a lawyer had made reasoned strategic decisions bears on the
competence component of the Strickland test.

Regardless of the inadequacy of legal representation, a 60-1507 motion fails if the
movant cannot establish substantial prejudice. And the district court properly may deny a
motion that falters on the prejudice component of the Strickland test without assessing
the sufficiency of the representation. Strickland, 466 U.S. at 697 ("If it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect
will often be so, that course should be followed."); see Edgar v. State, 294 Kan. 828, 843-
44, 283 P.3d 152 (2012); Oliver v. State, No. 106,532, 2013 WL 2395273, at *5 (Kan.
App. 2013) (unpublished opinion). In other words, even assuming a criminal defendant's
legal representation fell below the Sixth Amendment standard, he or she is not entitled to
habeas corpus relief if the result would have been no different with competent counsel.

The evidence presented at the 60-1507 hearing shows Falk had considered
Peterson as a potential trial witness and had taken steps to secure his presence for that
purpose. Falk testified that after the district court ruled Peterson could not testify to
specific instances of Sibat's violent disposition, he made a calculated decision not to call
Peterson as a witness. He concluded opinion or reputation testimony from Peterson about
Sibat's character would be redundant of other evidence and not especially persuasive to
the jury. The district court found Falk's decision to be a legitimate strategic determination
and, thus, consistent with constitutionally adequate representation under the first part of
the Strickland test.

The district court also concluded that Sola-Morales failed to establish the outcome
of the criminal trial might have been different, since Peterson did not testify at the 60-
1507 hearing. Without that testimony, Sola-Morales could not establish what Peterson
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would have told the jury either about his opinion of Sibat's character or about Sibat's
reputation. In turn, the district court had no way to gauge how that evidence might have
affected the trial.

Under the circumstances, the district court correctly found Sola-Morales did not
establish any legal basis to set aside his conviction because of Falk's decision against
calling Peterson as a witness at trial. The district court's conclusion that Sola-Morales
failed to establish material prejudice is itself legally sufficient to affirm the ruling. See
State v. Burnett, 300 Kan. 419, 455, 329 P.3d 1169 (2014) (habeas corpus relief properly
denied when movant fails to produce as witnesses at 60-1507 hearing persons who
purportedly would have provided exculpatory testimony at criminal trial); Tatum v. State,
No. 110,299, 2015 WL 4486775, at *12 (Kan. App. 2015) (unpublished opinion). As we
have said, Sola-Morales has effectively conceded this point on appeal and offers no
argument for reversing the district court's ruling.

2. Falk's Purported Conflict of Interest

2A. Legal Principles

A criminal defendant may obtain relief in a habeas corpus action if his or her
lawyer in the underlying case labored under an "active" conflict of interest and the
defendant either unsuccessfully objected to the representation at the time or can show the
conflict compromised the representation. State v. McDaniel, 306 Kan. 595, 609, 395 P.3d
429 (2017). Criminal defendants are constitutionally entitled to be represented by lawyers
who have no conflicts of interest that would divert them from fully advocating on their
clients' behalf. Sola-Morales, 300 Kan. at 883; State v. Bowen, 299 Kan. 339, 343, 323
P.3d 853 (2014). Such a conflict impinges on the Sixth Amendment right to counsel.
Mickens v. Taylor, 535 U.S. 162, 166-67, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002);
Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980).
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Relying on Mickens, the Kansas Supreme Court has recognized three categories of
active conflicts of interest in criminal cases: (1) the district court permits a lawyer to
represent multiple clients with antagonistic interests in the same proceeding despite an
objection to the representation; (2) a lawyer represents multiple clients but no objection
has been lodged; and (3) the representation of a current client conflicts either with a duty
owed a former client or with the lawyer's own personal or financial interests. Sola-
Morales, 300 Kan. at 884. If the circumstances fall in the first category, the defendant is
entitled to relief without showing actual prejudice. In the second instance, the defendant
has to show that the conflict adversely affected his or her legal representation—a lower
standard than the Strickland test for prejudice triggering a remedy. See Fuller v. State,
303 Kan. 478, 487, 363 P.3d 373 (2015). Here, as Sola-Morales concedes, the first two
categories based on the multiple representation of clients in the same criminal matter do
not apply.

Any possible conflict, then, must fit within the third category to warrant relief. The
Kansas Supreme Court has referred to that sort of conflict of interest as the "Mickens
reservation" because the United States Supreme Court has not expressly identified
whether the defendant must show merely an adverse effect on his or her representation,
as required under Cuyler, or must show sufficiently deficient representation to undermine
confidence in the outcome of the criminal case, as required under Strickland. Fuller, 303
Kan. at 487; Sola-Morales, 300 Kan. at 884. The Kansas Supreme Court has yet to
resolve the Mickens reservation by endorsing one or the other standard. See State v.
Moyer, 309 Kan. 268, 279-80, 434 P.3d 829 (2019) (recognizing lack of governing
standard); State v. Lindsay, No. 117,826, 2019 WL 2399477, at *7 (Kan. App. 2019)
(unpublished opinion) (noting Kansas Supreme Court has treated standard as unresolved
issue).

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The Kansas Supreme Court most recently discussed the Mickens reservation in
Moyer and identified three tests different courts have used to determine an "adverse
effect" on representation requiring relief, assuming the Cuyler standard rather than the
Strickland standard were to apply. 309 Kan. at 283-84. The most common test recognizes
an adverse effect when the conflicted lawyer failed to undertake "some 'plausible
alternative defense strategy or tactic that might have been pursued'" and made that choice
because of the conflict. United States v. Levy, 25 F.3d 146, 157 (2d Cir. 1994); see
Perillo v. Johnson, 79 F.3d 441, 449 (5th Cir. 1996); Moyer, 309 Kan. at 283. The second
formulation adds a requirement that the alternative strategy or tactic be "objectively
reasonable." Moyer, 309 Kan. at 283; see United States v. Nicholson, 611 F.3d 191, 197
(4th Cir. 2010). The third test, apparently unique to the Seventh Circuit, simply requires a
showing of a reasonable likelihood the lawyer's representation would have been different
had there been no conflict. Moyer, 309 Kan. at 283-84; see Hall v. United States, 371
F.3d 969, 974 (7th Cir. 2004).

The Moyer court acknowledged the three tests and, in particular, the discussion of
them in West v. People, 341 P.3d 520 (Colo. 2015). But the court then recognized that
Moyer would lose under each of three formulations of adverse effect and didn't identify
one of them as the legally appropriate standard. Moyer, 309 Kan. at 284-85. So in
Mickens reservation cases—where the defense lawyer had a conflict based on the past
representation of another client or on some personal or financial interest—the Kansas
Supreme Court appears to have left open whether the Strickland ineffectiveness standard
or the Cuyler adverse effect standard applies and if Cuyler applies, the test for assessing
adverse effect. We see Moyer's ecumenical approach to the test for adverse effect as
superseding State v. Cheatham, 296 Kan. 417, 452, 292 P.3d 318 (2013), in which the
court identified and considered only the Seventh Circuit test.

For purposes of this appeal, we assume the adverse effect standard governs, since
that is more favorable to Sola-Morales. Having made that assumption, we opt for a test of
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adverse effect requiring the lawyer to have forgone a plausible defense strategy or tactic
because of the conflict. In our view, the test necessarily includes some objective
assessment of the unused strategy as plausible in preference to simply accepting an after-
the-fact opinion from the lawyer that the strategy would have been wholly ineffective. At
that point, the lawyer has been accused of having an active conflict of interest during the
representation of the client, so his or her subjective assessment of various untried trial
strategies seems sufficiently suspect that it should not be given especially great weight. A
test without some objective measure tilts too heavily against the client. Conversely, we
find the Seventh Circuit's test goes too far the other way by affording relief based simply
on some difference in representation absent the conflict no matter how slight or
ineffective. An "any difference" test would hand defendants a gratuitous remedy in some
cases, as Sola-Morales' claim illustrates.

In many, if not most, of the Mickens reservations cases, the lawyer's conflict has
arisen from the past representation of another client rather than from a personal or
financial interest. But the origin of the conflict has no particular bearing on how the
adverse effect of that conflict should be gauged. The adverse effect depends upon the
substance of the lawyer's representation and any perceived deficiencies in that
performance—not the conflict animating the performance. So our consideration of cases
involving each kind of conflict does not diminish our determination of the best way of
measuring adverse effect.

2B. Record Fails to Support Active Conflict Based on Misrepresentations

On appeal, Sola-Morales launches an array of arguments in an effort to show that
Falk's handling of the criminal case involved an active conflict rooted in his legal
obligations to other clients or his personal interests. The result is a brief that sweeps wide
but falls short of advancing a point requiring relief.

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First, Sola-Morales suggests Falk had an active conflict of interest because he
misrepresented the grounds for the trial continuances, attributing them to the State's
request rather than his own. And Falk ostensibly enhanced that conflict by falsely telling
Sola-Morales that the district court denied his pro se motion to dismiss, when Falk
actually withdrew it. Sola-Morales submits Falk lied about the disposition of the motion
to cover up his lies about who requested the trial continuances. On appeal, the
fundamental problem with that argument lies in the district court's factual finding that
Falk did not make any such misrepresentations. Sola-Morales tries to avert that flaw by
suggesting the district court's finding lacked substantial evidence in the record.

Substantial evidence is that which a reasonable person could accept as sufficient to
support a factual proposition. See State v. May, 293 Kan. 858, 862, 269 P.3d 1260
(2012). In making that assessment of a district court's findings, we neither reweigh
evidence nor make independent credibility determinations. K.S.A. 2018 Supp. 60-
252(a)(5) ("Findings of fact must not be set aside unless clearly erroneous, and the
reviewing court must give due regard to the trial court's opportunity to judge the witness'
credibility."); State v. Hartpence, 30 Kan. App. 2d 486, 493, 42 P.3d 1197 (2002). A
significant part of evaluating testimony rests on seeing the witnesses on the stand and
observing how they respond to questions both on direct and cross-examination. State v.
Scaife, 286 Kan. 614, 624, 186 P.3d 755 (2008) ("[T]he ability to observe the declarant is
an important factor in determining whether he or she is being truthful."); State v. Franco,
49 Kan. App. 2d 924, 936, 319 P.3d 551 (2014) ("'The judicial process treats an
appearance on the witness stand, with the taking of an oath and the rigor of cross-
examination, as perhaps the most discerning crucible for separating honesty and accuracy
from mendacity and misstatement.'") (quoting State v. Bellinger, 47 Kan. App. 2d 776,
787, 278 P.3d 975 [2012] [Atcheson, J., dissenting]). Appellate courts have no
comparable vantage point when they read a trial transcript, and that is precisely why they
do not make credibility determinations. We will not do so here.

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Although the district court's observations of Falk and Sola-Morales as each of
them testified entails substantial evidence sufficient to support the factual finding that
Falk did not lie about the continuances or the motion to dismiss, the record contains
additional evidence. First, Sola-Morales appears to have relied on the letters from Falk's
office in determining the State requested and received trial continuances. But that
reliance would have been misplaced as to the first three letters, since none of them
identifies who sought the continuance. To the extent Sola-Morales purported to rely on
in-person meetings with Falk to advance his account—and his testimony isn't especially
clear in that respect—it suffers from the same defect as Falk's testimony about their
meetings. The jail records and other documents strongly suggest they could not have had
a meeting around the time of each continuance, so Sola-Morales would have received no
explanation (true or false) from Falk. The district court also concluded Falk had no
particular motive or incentive to lie about requesting the trial continuances. Sola-Morales
did not offer or establish a reason.

The district court's credibility determination rejecting Sola-Morales' version of his
communications with Falk undercuts his argument for an active conflict and, in turn, a
legal basis for habeas corpus relief. That is sufficient to affirm the district court's ruling
on the point. We are comfortable in doing so. In his concurring opinion, Judge Leben
explains why he is not. Accordingly, we next outline why Sola-Morales' claim fails even
if Falk had lied about the trial continuances and the disposition of the motion to dismiss.
We and Judge Leben agree on the outcome if Falk lied to Sola-Morales, although our
analytical paths there differ.


18

2C. Even if Falk Lied as Alleged, Sola-Morales Points to No Adverse Effect

In his concurring opinion, Judge Leben contrasts the district court's bench ruling
and initial journal entry with the final journal entry that parrots the State's proposed
findings and conclusions and determines they are so discordant they cannot be
reconciled. He would reject the final journal entry at least partly because the district court
adopted the State's submission seemingly by rote and because the district court made no
effort to explain the discrepancies between its earlier oral and written rulings and the last
journal entry. Judge Leben focuses on the district court's initial assessment that Falk had
a conflict of interest because he failed to communicate with Sola-Morales about the
continuances and its characterization of that in the final journal entry as merely a
potential conflict of no particular legal significance. He goes on to say that the testimony
at the 60-1507 hearing supports Sola-Morales' position that Falk lied to him about who
requested the trial continuances and the disposition of his motion to dismiss.

We share Judge Leben's general concern about district courts adopting one side's
proposed findings and conclusions with little or no revision and his specific concern
about the district court's decision to do so here. Although the practice may promote
efficiency, especially for district courts with particularly crowded dockets, it does so at
the expense of the appearance of fairness and in some cases with a loss of solid reasoning
for an otherwise correct result.

That said, we do not see the stark conflict Judge Leben describes between the
district court's initial findings in this case and the final journal entry. The district court
recognized that Falk failed to communicate with Sola-Morales about the trial
continuances. But a lack of communication about something is quite different from
falsely communicating about it. Not communicating often enough with a client or failing
to convey material information is poor practice and may be an ethical violation
depending on the circumstances. See Kansas Rule of Professional Conduct (KRPC)
19

1.4(a) (2019 Kan. S. Ct. R. 299) (duty to keep client "reasonably informed"); Comment 2
("[a]dequacy of communication" dependent on "kind of advice or assistance involved").
Lying to a client about a material matter is indisputably wrong and a clear ethical
violation. See KRPC 2.1 (2019 Kan. S. Ct. R. 345) (duty to render "candid advice" to
client); see In re Morse, 264 Kan. 286, 289-91, 954 P.2d 1092 (1998) (lawyer suspended
from practice for failing to file bankruptcy case for client and falsely representing to
client he had done so). So the district court's initial finding of a lack of communication
between Falk and Sola-Morales doesn't contradict its later credibility determination that
Falk didn't lie to Sola-Morales. If they didn't communicate, lies could not have passed
between them. And if Falk didn't lie about the continuances, his purported motive to lie
about the motion to dismiss also evaporates.

In short, the district court's initial finding that Falk did not communicate with
Sola-Morales about the continuances can be reconciled with the later finding that Falk
did not actively lie to Sola-Morales about the continuances. The failure to communicate
may have been improper, but lying about the continuances would have been an obvious
impropriety of markedly greater magnitude. We do not share Judge Leben's reasons for
discounting the district court's credibility determination that Falk did not lie to Sola-
Morales about the continuances or the disposition of his motion to dismiss. We, likewise,
do not see the 60-1507 hearing evidence as leading to the conclusion Falk lied to Sola-
Morales about the continuances or the motion.

But to extend Sola-Morales full consideration, especially in light of Judge Leben's
concerns about the district court's findings, we alternatively analyze this claim assuming
Falk lied about the continuances and the disposition of the motion to dismiss. In doing so,
we underscore that we have simply assumed Falk engaged in the misconduct Sola-
Morales has attributed to him.

20

Based on that assumption, however, Falk had an active conflict under the Mickens
reservation rooted in his personal interest—avoiding the discovery and disclosure that he
had lied about the continuances. And that conflict would have led him to torpedo the
hearing on the motion to dismiss to avoid those lies coming to light. So Falk would have
compounded the misrepresentations about the continuances by telling Sola-Morales the
district court denied the motion on its merits, when he actually withdrew it.

Sola-Morales' 60-1507 claim still falters because he cannot show that the active
conflict we have assumed on Falk's part resulted in an adverse effect on the legal
representation. The test for an adverse effect requires the client to show the lawyer failed
to pursue an objectively plausible alternative strategy or tactic because of the active
conflict. Sola-Morales points to his motion to dismiss as the strategy or tactic that Falk
abandoned. But the motion had no merit, so it could not have been a "plausible" strategy
to secure a favorable result for Sola-Morales.

As we noted, Sola-Morales premised his pro se motion to dismiss on a purported
statutory speedy trial violation and parenthetically mentioned his constitutional speedy
trial right. On appeal, Sola-Morales has abandoned any substantive reliance on a violation
of the speedy trial statute as an independent basis for relief because he had been detained
both in this case and a separate criminal case. And the statutory right does not apply
when a person is being held on more than one case. K.S.A. 2018 Supp. 22-3402(a); see
State v. Montes-Mata, 292 Kan. 367, Syl. ¶ 2, 253 P.3d 354 (2011). Sola-Morales'
position amounts to a tacit concession that the district court could not have granted the
motion. Moreover, the motion would have failed because Falk did, in fact, request the
continuances, and, as a result, the delays would not have counted against the speedy trial
deadline regardless of what he told Sola-Morales. The motion never advanced an
articulated argument for a constitutional speedy trial violation and would not have been
successful on that score. We discuss in detail why Sola-Morales has no constitutional
21

speedy trial claim in Section 2E, since he has presented it as an independent basis for
granting his 60-1507 motion.

Without belaboring the point, Sola-Morales' motion to dismiss was meritless.
Filing or arguing a meritless motion cannot be a "plausible" strategy or tactic. So even if
Falk withdrew the motion and falsely told Sola-Morales the district court denied it on the
merits, Falk would not have forgone a plausible legal claim that could have improved the
outcome of the case for Sola-Morales. While Falk would have had an active conflict
under our assumed facts, Sola-Morales has failed to show the conflict resulted in any
legal detriment, since the only difference would have been the presentation of a baseless
motion to dismiss for the district court's consideration and inevitable rejection.

As we suggested earlier, those circumstances illustrate the weakness of the
Seventh Circuit's test for an adverse effect requiring only a showing that the lawyer's
representation would have been different absent the conflict—wholly divorced from any
consideration of the efficacy of the difference. See Cheatham, 296 Kan. at 452 (quoting
Seventh Circuit authority characterizing test for adverse effect as whether lawyer's
"performance somehow would have been different"). Here, according to Sola-Morales,
the difference would have been Falk's actually arguing (and undoubtedly losing) the
frivolous motion for dismissal. So Sola-Morales would get a new trial because a
worthless pretrial motion had not been presented to the district court—something that
would have made no difference whatsoever in the trial, the jury's consideration of the
evidence, or its verdict. A defendant in Sola-Morales' position would reap a substantial
benefit without having suffered any legal prejudice. The any-difference-in-representation
test, thus, affords a gratuitous remedy uncalibrated to the actual harm done.

That is not to say a lawyer representing a criminal defendant despite an active
conflict of interest should escape any consequences. A lawyer in that position would be
open to investigation and sanction for violating the rules of professional conduct. The
22

Kansas Supreme Court has taken precisely that approach in policing the trial conduct of
prosecutors. If a prosecutor's improper comments or argument do not deprive a defendant
of a fair trial, the defendant should not receive a new trial simply to punish the
prosecutor. The remedy wouldn't be calibrated to the harm done the defendant. The
prosecutor, however, may be held in contempt or sanctioned for professional
misconduct—penalties geared to the misconduct. State v. Sherman, 305 Kan. 88, Syl. ¶¶
7-8, 12, 378 P.3d 1060 (2016).

In closing up our discussion, we mention Judge Leben's resolution: He comes to
the same conclusion but gets there through a different legal route. Judge Leben has made
a studied consideration of whether the Strickland substantial prejudice standard or the
more relaxed Cuyler adverse effect standard should apply when a lawyer labors under a
personal or financial conflict falling within the Mickens reservation. He has opted for the
Strickland standard and concludes Sola-Morales cannot establish the degree of prejudice
necessary for relief. On the first aspect of his analysis, Judge Leben may very well be
right. We chose to bypass a deliberative choice between Strickland and Cuyler and have
applied the adverse effect standard as a forensic device favoring Sola-Morales. If
Strickland applies, Judge Leben has undoubtedly reached the correct conclusion on the
second aspect of his analysis. Sola-Morales has not demonstrated actual prejudice calling
the outcome of the criminal case into question.

2D. Record Otherwise Shows No Mickens Reservation Conflict

Sola-Morales alternatively contends Falk had an active conflict of interest in
taking the trial continuances even if he were forthright about having requested them to
accommodate his heavy caseload or his wife's illness. That is, Falk represented too many
clients, and that alone created an impermissible conflict. The argument misperceives
what amounts to a conflict under the Mickens reservation.

23

To labor under a covered conflict, a lawyer must consciously refrain from making
a substantive argument or offering evidence favorable to the criminal defendant because
of an actual or perceived duty to another present or former client. In other words, the
conflict must adversely affect the quality of the legal work itself. As described in
McDaniel, the lawyer's conduct must "'breach[] the duty of loyalty'" owed the criminal
defendant. 306 Kan. at 611 (quoting Strickland, 466 U.S. at 692). The court, 306 Kan. at
611, specifically relied on Justice Marshall's separate opinion in Cuyler, which drew on
the Canons of Professional Ethics, in outlining the sort of conflict that may be
considered: "'[A] lawyer represents conflicting interests when, in behalf of one client, it
is his duty to contend for that which duty to another client requires him to oppose.'"
Cuyler, 446 U.S. at 356 n.3 (Marshall, J., concurring in part and dissenting in part)
(quoting Canon 6, Canons of Professional Ethics [1937]).

The discussion in McDaniel illustrates what is not considered an active conflict of
interest triggering review under the Mickens reservation. There, McDaniel asserted his
lawyer had a conflict of interest and divided loyalties because she had "prioritized her
other clients' cases over his." 306 Kan. at 611. The court rejected the notion that the
contention, even if true, stated a conflict of interest impairing the lawyer's ability to
adequately represent McDaniel consistent with the constitutional right to counsel. 306
Kan. at 611.

In his alternative argument here, Sola-Morales relies on a purported conflict of
interest because Falk represented numerous defendants in serious criminal cases and
apparently elected to take at least one of those cases to trial before his case. But that is
precisely the ersatz conflict the court rejected in McDaniel. A contrary rule of the sort
Sola-Morales promotes would be illogical and unworkable: A lawyer handling more than
one serious criminal case would inevitably have a conflict of interest, since he or she
would have to advance one case to disposition before the other, thus "favoring" that
24

defendant. The false conflicts would increase exponentially the more criminal cases the
lawyer simultaneously handled.

In short, Falk did not have an active conflict of interest in representing Sola-
Morales because he also had agreed to handle a number of other serious criminal cases
and that workload necessitated some or all of the six trial continuances. Sola-Morales
makes a cognate argument that Falk requested at least a few of the continuances because
of his wife's health and that amounts to a personal interest triggering the Mickens
reservation. We disagree for the same reason. Any continuances attributable to Falk's
wife's illness did not create an active conflict of interest that inhibited Falk in
substantively defending Sola-Morales.

The trial continuances merely affected the relative timing of the defense—not its
quality. By contrast, the Mickens reservation presumably would come into play if a
lawyer's wife or child were being treated for cancer and the primary oncologist, simply
by happenstance, was a key fact witness against a criminal defendant the lawyer
represented. The lawyer would then face the prospect of cross-examining and trying to
discredit a physician providing vital care to an immediate family member. Holding back
in challenging a key witness would diminish the quality of the defense.

We mention in passing that a defense lawyer could not interminably continue a
criminal case citing workload, especially if the client or the State were pressing for a trial
or some other disposition. A lawyer must represent a client with due diligence. See
KRPC 1.3 (2019 Kan. S. Ct. R. 298) ("A lawyer shall act with reasonable diligence and
promptness in representing a client."); Comment 1 ("A lawyer's workload should be
controlled so that each matter can be handled adequately."). The McDaniel court noted
the material legal difference between an extended delay attributable to a lawyer's other
work—a failing it characterized as "'deficient performance'"—and a conflict of interest
25

under Mickens, 306 Kan. at 611. They are neither the same nor fungible in establishing an
active conflict of the sort described in the Mickens reservation.

On this point, we conclude that Sola-Morales has failed to establish Falk had a
conflict of interest of the kind calling into question the constitutional adequacy of his
legal representation. Falk's representation of numerous criminal defendants in a variety of
cases does not in and of itself create an active conflict among those clients under the
Mickens reservation. We think that alone requires affirming the district court's ruling
rejecting that ground for habeas corpus relief.

2E. No Conflict or Inadequate Representation Based on Constitutional Speedy
Trial Claim or Failure to Call Duarte as a Trial Witness

Sola-Morales has raised two subsidiary issues on appeal that in an abundance of
caution and deference to him we address. First, he suggests Falk compromised his
constitutional right to a speedy trial secured in the Sixth Amendment. Second, he
suggests Falk's failure to call Duarte as a trial witness amounted to constitutionally
inadequate representation under either the adverse-effect test described in Mickens or the
more demanding prejudice test in Strickland. Neither suggestion has merit. They also
arguably exceed the scope of the remand to address Falk's purported conflict of interest.

As we have already explained, Sola-Morales' motion to dismiss based on a
statutory speedy trial violation had no merit. On appeal, Sola-Morales has attempted to
meld his argument for Falk having an active conflict of interest with a claim that the trial
continuances somehow impaired his constitutional right to a speedy trial. The effort fails.
As we have said, Falk did not have a conflict. Even if Falk did, Sola-Morales cannot
show he was deprived of his constitutional right to a speedy trial. So arguing a
constitutional violation would not have been a plausible strategy or tactic under the
Cuyler standard. Nor would it have called into doubt or undermined the outcome of the
case under the Strickland standard.
26


Sola-Morales asserts that Falk, by requesting and receiving the trial continuances,
violated his constitutional speedy trial right. But the right is ultimately a protection
against government action or, more precisely, inaction in failing to bring a defendant to
trial within a reasonable time. Barker v. Wingo, 407 U.S. 514, 527, 92 S. Ct. 2182, 33 L.
Ed. 2d 101 (1972) ("duty" of State to bring criminal defendant to trial); Smith v. Hooey,
393 U.S. 374, 383, 89 S. Ct. 575, 21 L. Ed. 2d 607 (1969).

In Barker, the Court fashioned a four-part test to examine whether the government
has denied a defendant a speedy trial as guaranteed by the Sixth Amendment: (1) the
length of delay; (2) the reasons for the delay; (3) the defendant's assertion of the
constitutional right; and (4) the prejudice to the defendant arising from the delay. 407
U.S. at 530; see State v. Weaver, 276 Kan. 504, 506, 78 P.3d 397 (2003) (applying
Barker to Sixth Amendment speedy trial challenge). The Court recognized the factors are
interlocking and other circumstances in a given case may also be relevant to a claimed
constitutional deprivation. Barker, 407 U.S. at 530-31. As discussed in Barker and since
applied elsewhere, the length of delay operates, in part, as a gatekeeper to the remaining
factors. That is, a defendant, in light of the circumstances of his or her case, must show
that the properly measured delay may be considered likely or presumptively prejudicial.
Barker, 407 U.S. at 530-31; State v. Waldrup, 46 Kan. App. 2d 656, 679, 263 P.3d 867
(2011). Here, the time is measured from Sola-Morales' arrest to his trial—just about a
year. State v. Robinson, 56 Kan. App. 2d 567, 573, 434 P.3d 232 (2018). We assume
without deciding the delay may be considered presumptively prejudicial. By the same
token, however, bringing a homicide case to trial in a year could not be characterized as
extraordinarily slow. See Annual Report of the Courts of Kansas for Fiscal Year 2018,
Office of Judicial Administration, at 62 (12.1 percent of all felony cases in Sedgwick
County pending for more than 12 months, including those resolved by plea or dismissal).
So the delay itself isn't a particularly strong ground for a speedy trial violation.

27

As a general matter, the delay resulting from a court-ordered continuance should
be attributed to the party requesting the additional time. Weaver, 276 Kan. at 508 (time
attributable to defense continuances given limited significance in constitutional speedy
trial determination); United States v. Erenas-Luna, 560 F.3d 772, 778 (8th Cir. 2009)
(same). Here, Sola-Morales contends nine months of the delay resulted directly from the
continuances Falk requested. That appears to be undisputed. In considering a
constitutional speedy trial claim, those continuances should not be counted against the
government. See Vermont v. Brillon, 556 U.S. 81, 90-91, 129 S. Ct. 1283, 173 L. Ed. 2d
231 (2009) ("delay caused by the defendant's counsel is . . . charged against the
defendant"); United States v. Gould, 672 F.3d 930, 937 (10th Cir. 2012). This is not a
case in which a defendant may have been forced to request a trial delay because of the
State's dilatory production of discovery or the like—a circumstance favoring attribution
of the time to the government. Between July 2005 and the trial in March 2006, the State
requested no continuances. Those circumstances weigh against any constitutional speedy
trial violation.

The third factor looks at the defendant's assertion of his or her speedy trial right.
Here, Sola-Morales raised speedy trial issues for the first time in his pro se motion to
dismiss filed about a month before the trial. The claim came late in the process. And it
took the form of a motion to dismiss based on what Sola-Morales inferred were
continuances the State had already received. So Sola-Morales had not otherwise
affirmatively requested a speedy trial. The absence of an earlier request cuts against a
violation.

As to the final factor, the Barker Court identified three types of potential prejudice
a criminal defendant faces when a trial is unduly delayed: oppressive pretrial
incarceration; anxiety and concern sparked by the unresolved proceedings; and possible
impairment of a defense. Barker, 407 U.S. at 532; see also Rivera, 277 Kan. at 118.
Potential harm to the defense typically reflects "the most serious" consequence of delay
28

"because the inability of a defendant adequately to prepare his case skews the fairness of
the entire system." Barker, 407 U.S. at 532. As the Barker Court pointed out, an
especially long delay may also degrade the truth-seeking function of a trial because some
witnesses may be lost altogether and the memories of those who testify may well be
dulled by the passage of time. 407 U.S. at 521. That sort of implicit erosion of the trial
process affects both the prosecution and the defense and may be considered in assessing
prejudice, although it should not be treated as determinative. Doggett v. United States,
505 U.S. 647, 655-56, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992).

Sola-Morales doesn't identify with specificity any prejudice resulting from the
delay but cites cases noting the anxiety and other emotional strain that often accompany
pretrial detention. Here, though, Sola-Morales was being detained on another case, as
well, so any upset could not be attributed solely and, thus, directly to the continuances in
this case. Likewise, Sola-Morales does not lay out any particular prejudice to his defense
in conjunction with his speedy trial right. He has separately argued the failure to call
Duarte as a witness undercut his trial, a claim we turn to next and reject. We see nothing
about the evidence in this case to suggest that the overall reliability of the truth-seeking
process was materially compromised because of the continuances. The bulk of the State's
case rested on crime-scene and forensic evidence and the descriptions of the shooting
Sola-Morales gave his coworker and law enforcement officers shortly after it occurred.
Evidence of that sort would not tend to erode with the passage of time, especially when
the officers contemporaneously documented their interactions with Sola-Morales.
Moreover, the lapse of time between the material events and the trial wasn't especially
great.

In sum, Sola-Morales hasn't shown his constitutional right to a speedy trial was
compromised, so his argument for habeas corpus relief premised on that contention
necessarily fails.

29

For his second point, Sola-Morales argues that because of the continuances Duarte
was unable to testify at the trial and her testimony would have made a material
difference. The undisputed evidence from the hearing on the 60-1507 motion shows
Duarte was in the middle of an extended visit to Cuba in March 2006 when the case went
to trial. Duarte testified at the hearing that she had informed Falk about the trip well
before the trial, a proposition we nominally accept as true.

During the hearing, Duarte said she would have given testimony at the trial
consistent with a written statement she had prepared in November 2006. The statement
was admitted as an exhibit and is part of the appellate record.

In the statement, Duarte describes Sola-Morales coming home from work in the
early evening and then going to Sibat's residence. As the evening wore on and Sola-
Morales didn't return, Duarte states she unsuccessfully tried to call him several times and
even drove by Sibat's home, where she saw the two men standing outside. She did not
approach them and returned to her home. Duarte wrote that she called Sola-Morales
about 2:30 a.m. and he told her that he and Sibat were drinking and everything was okay.
According to the statement, about 30 minutes later, Sola-Morales returned home
"drenched in blood" and "very scared." So Duarte asked what happened. She wrote:

Sola-Morales explained that he and Sibat started arguing, and he tried to leave.
Sibat told Sola-Morales he wasn't leaving, so they "started to fight." Sibat then drew a
gun. Sola-Morales "took it [the gun] from him and somehow the bullet came out of the
gun." Sola-Morales said unidentified friends urged him to leave town because the police
here were "worse than the police in Cuba." Duarte told him he should stay. But he left
anyway.

In the statement, Duarte briefly described her communications with Falk before
the trial. She wrote that she had told Falk she would be in Cuba in March 2006. And she
30

wrote that before the trial Falk repeatedly said Sola-Morales should accept the State's
plea offer. At the 60-1507 hearing, Falk testified that the State had offered to reduce the
second-degree murder charge to voluntary manslaughter with a recommendation for a
downward durational departure on the prison sentence in exchange for Sola-Morales'
plea. The record does not include more precise details of the offer, and Sola-Morales
premises none of his 60-1507 claims on anything related to the offer or its rejection.

Had Duarte been called as a defense witness at trial, we question whether she
could have testified to what Sola-Morales told her after he returned from Sibat's home.
Since Sola-Morales exercised his right not to testify, he was unavailable as a witness. See
K.S.A. 60-459(g)(1) (person unavailable if "exempted" by privilege from testifying). The
State could not have compelled Sola-Morales to testify consistent with his privileges
against self-incrimination in both the Fifth Amendment to the United States Constitution
and § 10 of the Kansas Constitution Bill of Rights. In turn, what Sola-Morales told
Duarte would have been inadmissible hearsay under K.S.A. 2018 Supp. 60-460.
Presumably Sola-Morales' account of the homicide would have been the focal point of
Duarte's testimony. She otherwise could have described her efforts to communicate with
him before the shooting and his physical appearance afterward. None of that would have
had much significance in the jury trial.

Even assuming Duarte could have testified at trial to what she says Sola-Morales
told her about the shooting, we fail to see how that evidence would have made any
appreciable difference. Sola-Morales recounted three versions of Sibat's death to law
enforcement officers, and the prosecutors had the lead detective outline all of them for
the jury. The account Duarte wrote down more or less fits with the second version Sola-
Morales gave the police—he and Sibat were wrestling over the handgun when it fired.
But that account comes with at least two distinct drawbacks. First, of course, Sola-
Morales superseded it himself with another narrative for police describing something like
an intentional act of self-defense. Second, the forensic evidence, most notably the
31

absence of gunpowder residue and stippling, didn't support a scenario in which Sibat
somehow got shot during hand-to-hand combat with Sola-Morales.

So Sola-Morales can't make any headway with this argument, since Duarte's
missing testimony wouldn't have tipped the trial in any measurable way toward a better
outcome for him. The claim, therefore, fails under the prejudice component of the
Strickland test. The Mickens reservation does not apply because Duarte's absence as a
trial witness could not be attributed to the active conflict Sola-Morales has alleged. The
purported conflict arose from Falk's lies about who requested the continuances—not from
the continuances themselves.

Conclusion

We have carefully examined Sola-Morales' arguments and find no error in the
district court's conclusion to deny his habeas corpus motion on the grounds the Kansas
Supreme Court remanded for hearing. Sola-Morales failed to present a hearing record
supporting relief based on the failure to call Peterson as a trial witness, and he hasn't
argued otherwise in this appeal. The district court's credibility determinations undercut
any claim that Falk made material misrepresentations to Sola-Morales about the trial
continuances or the motion to dismiss resulting in a conflict of interest. Even assuming
Falk misrepresented those circumstances, Sola-Morales has not shown he was deprived
of a plausible strategy or tactic as a result. The evidence otherwise fails to show a conflict
coming within the Mickens reservation. Sola-Morales' related arguments premised on a
constitutional speedy trial violation and the failure to call Duarte as a trial witness also
fail. There was no constitutional violation. And Duarte's key testimony would have been
either inadmissible or, if admitted, unpersuasive.

Affirmed.

32

* * *

LEBEN, J., concurring: This appeal involves the claim of Santiago Sola-Morales
that he was convicted of voluntary manslaughter because his attorney provided
inadequate representation in two respects: (1) that the attorney, Roger Falk, should have
called Stephen Peterson to testify at trial; and (2) that Falk had a conflict of interest while
he was representing Sola-Morales.

On the first claim, the district court found that Falk made a legitimate strategic
decision not to call Peterson as a witness, and that conclusion is supported by the
evidence presented to the district court. No further discussion of that claim is needed.

The second claim presents a situation so unusual I've not encountered it before in
26 years as a judge and 37 years as a lawyer. The trial judge held an evidentiary hearing
to decide two important questions: (1) did the attorney who represented Sola-Morales
have a conflict of interest and (2) if so, should Sola-Morales get a new trial? The judge
found that there was a conflict but that it didn't require granting a new trial. Substantial
evidence supported the finding of a conflict.

Then when Sola-Morales asked the judge to reconsider his ruling on that second
question, the court—without explanation—suddenly reversed the finding it had made that
a conflict had existed. The court did so by adopting verbatim the proposed findings the
prosecutor submitted saying that no conflict existed. But the prosecutor's proposed
finding that there was no conflict had been submitted to—and rejected by—the court
when it initially found that a conflict had existed.

The court's original finding of a conflict came in an oral ruling from the bench a
few months after hearing the parties' evidence. The court then confirmed in a written
33

order, filed four months later, that a conflict had existed. Then—one year after it had
heard the evidence—the court reversed course and said that there had been no conflict.

Reversing key rulings without explanation a year after hearing evidence by
adopting a party's once rejected findings verbatim is not how a justice system works. In
this situation, in my view, the trial court abused the judicial power entrusted to it. I would
uphold the original finding—made orally, confirmed in writing, and supported by the
evidence—that a conflict existed.

But that doesn't end the analysis. We still must decide which of two standards
applies to determine whether Sola-Morales gets a new trial. Under one standard, he must
only show that the conflict affected the representation provided by his attorney. Under the
other standard, he must also show that the inadequate representation caused by the
conflict prejudiced him, meaning that there's a reasonable probability that the result
would have been different had the conflict not interfered with the representation. Because
the United States Supreme Court has only applied the lesser standard in limited situations
in which it would be hard to determine whether prejudice occurred—and this is a case in
which we can determine whether Sola-Morales was prejudiced—I would hold that the
normal prejudice standard applies. As the majority has explained, Sola-Morales cannot
show prejudice. I therefore agree with its conclusion that Sola-Morales isn't entitled to a
new trial.

I. Falk Had a Conflict of Interest.

The district court held an evidentiary hearing to answer two questions. First, did
Falk have a conflict of interest? Second, if he did, should Sola-Morales get a new trial?

Let's start with the first question: did a conflict of interest exist? See Sola-Morales
v. State, 300 Kan. 875, 899-900, 335 P.3d 1162 (2014). A conflict of interest exists when
34

defense counsel actively represents competing interests. 300 Kan. at 883. An attorney
actively represents competing interests when, "'during the course of representation, the
attorney's and defendant's interests diverge with respect to a material factual or legal issue
or to a course of action.'" State v. Cheatham, 296 Kan. 417, 453, 292 P.3d 318 (2013).

Sola-Morales argues that Falk had a personal interest in avoiding disciplinary
action for his conduct that conflicted with Sola-Morales' interest in defending his motion
to dismiss. As an overview of that conflict, Sola-Morales knew that his trial had been
continued several times, and he said Falk had told him that the State had obtained the
continuances. In fact, Falk had taken the continuances—without Sola-Morales' presence
in court. After Falk had gotten several continuances, Sola-Morales acted without his
attorney's help and filed his own motion to dismiss on speedy-trial grounds, claiming that
the State had obtained all these continuances.

When that motion was set for hearing, Sola-Morales was brought to the
courthouse. But he never made it into the courtroom; Falk told the court that Sola-
Morales was withdrawing that motion. Falk said Sola-Morales had authorized its
withdrawal; Sola-Morales said he didn't. Sola-Morales contends that Falk withdrew the
motion to protect his own interest in not having the court find out that Falk had falsely
told Sola-Morales that the earlier extensions had been sought by the State. Sola-Morales
argued that was a conflict of interest between Falk and his client.

At first, the district court found that Falk had a conflict. At the evidentiary hearing,
the court heard testimony from Sola-Morales, Falk, and Sola-Morales' ex-wife, Jackie
Duarte. The parties then submitted briefs with proposed findings on whether the
testimony established that Falk had a conflict of interest. On the same day the court heard
oral argument on those briefs in January 2016, it announced its oral findings. The court
found that a conflict of interest had existed:

35

 "Was there a conflict created resulting from the lack of communication on
continuances between Mr. Falk and Mr. Sola-Morales? It does appear to me
that in fact there was a conflict created."
 "I would note for the record that I am at this time merely stating that, yes, a
conflict existed due to the lack of regular communication."
 "You're asking as to whether or not [the lack of access to court the day of the
hearing] was part of the conflict that existed, and did it affect his inability to
personally stand before the court . . . and be heard. That is a natural outcome of
the findings that I have made here, yes."
 "The conflict was, just originally, was there a conflict that existed as between
Mr. Sola-Morales and Mr. Falk as to their ability to communicate, and
Mr. Sola-Morales' ability to assert his objection as to continuances personally,
rather than through counsel."

In short, the district court in January 2016 found that Falk had a conflict of interest based
on his lack of communication and Sola-Morales' inability to personally object to the
continuances.

The court then confirmed its findings in writing. In a May 2016 journal entry, the
court summarized its oral findings on the conflict issue: "Falk created a conflict by failing
to regularly communicate with [Sola-Morales] and depriving [him] of the ability to assert
his objections to continuances." So by May 2016, the district court had twice found that a
conflict existed—once in its January oral findings and again in writing in May.

That finding was supported by substantial evidence establishing that Falk had a
personal interest in preventing Sola-Morales from appearing at the hearing on his motion.
Sola-Morales and Duarte both testified that Falk said the State had requested the
continuances. In fact, of course, Falk had requested them. Sola-Morales testified that at
in-person meetings at the jail, Falk said the State was responsible for delaying the trial.
36

Duarte also testified that Falk told her the State was taking the continuances. (She had
been talking to Falk at Sola-Morales' request because Falk had not met with Sola-Morales
in person for several months.)

Falk denied having lied to Sola-Morales and said that shortly after requesting a
sixth continuance he told Sola-Morales in person that he had taken the continuances, not
the State. Yet only a few weeks later Sola-Morales filed his own motion to dismiss the
charges on speedy-trial grounds—and in that motion he stated his continued belief that
the State had taken the continuances. From the fact that Sola-Morales filed his motion
even after Falk said he had discussed the continuances with Falk, the district court could
reasonably have concluded that Falk's testimony on this point wasn't accurate: It's
unlikely that Sola-Morales would have filed a motion erroneously claiming that the State
was taking continuances if he had recently been told by Falk that Falk, not the State, had
been taking them. Sola-Morales might have filed some claim against his attorney or some
request for new counsel, but not a motion to dismiss premised on the claim that the State
had caused all the trial delays to date.

The facts as Sola-Morales and Duarte described them supplied a reason for Falk to
be personally interested in Sola-Morales not appearing in the courtroom during the
hearing on his motion—preventing discovery by the court of what he'd done. Lying to a
client is a serious breach of the duty of loyalty owed by every attorney to a client, so Falk
could be subject to disciplinary action if Sola-Morales told the court why he had
mistakenly thought the State was requesting continuances. So while Falk's duties to Sola-
Morales required him to pursue vigorously his client's interests, which included
supporting Sola-Morales' right to appear personally at the hearing, doing so meant
subjecting himself to potential disciplinary action when the court discovered his conduct.

37

That view of the evidence is the only one reasonably consistent with the trial
court's original oral ruling that Falk had a conflict of interest. And that finding was
supported by substantial evidence—and then confirmed in a written ruling.

So the court had twice found a conflict but still had granted no relief to Sola-
Morales, who was seeking a new trial. That prompted Sola-Morales to ask the court to
reconsider whether a new trial should be ordered. Sola-Morales did ask the court to
clarify that when it found a "conflict," it meant a "conflict of interest" and that this
required ordering a new trial. But at no point did Sola-Morales (or the State, for that
matter) ask the court to reconsider its original finding that a conflict between attorney and
client had existed in the first place.

In response to Sola-Morales' reconsideration motion, the State submitted proposed
factual findings. The findings in the State's response to the motion to reconsider were
substantively the same as those in its brief filed before the district court's oral findings;
the State didn't propose any new findings in the motion that it had not already proposed
in its earlier brief. In particular, the State's response repeated the claim from its brief that
no conflict of interest existed. So even though Sola-Morales had not asked the court to
reconsider its finding that a conflict had existed, the State's proposed findings submitted
in response still included a proposed finding that no conflict had existed.

In May 2017, the district court ruled on Sola-Morales' motion to reconsider. It
simply adopted the State's proposed findings verbatim, including the finding that no
conflict of interest had existed. Having found the existence of a conflict twice already,
most recently in May 2016, the court in May 2017 now said the opposite.

Three things stand out about the district court's unexpected reversal. First, the
findings that the court adopted verbatim in May 2017 were the same ones it had rejected
conclusively in January 2016. Before the court announced its findings from the bench,
38

the State had submitted a brief with its proposed findings. That brief contained each of
the proposed findings that the court would later copy and paste into its May 2017 order,
including a proposed finding that no conflict of interest had existed. And we know that
the district court read the State's brief because it said so in first sentence of its oral
findings: "I have given consideration to both [issues], after reviewing . . . the written
memorandums provided to the Court for . . . oral arguments." Then it rejected the State's
argument, finding instead that a conflict existed. So the court considered and rejected the
findings it would later adopt word-for-word.

Second, the district court didn't acknowledge or attempt to explain the
contradiction. We've said in other contexts that a trial court is "bound by fundamental
principles of logic and has a duty to explain its decisions." State v. Meyer, 17 Kan. App.
2d 59, 70, 832 P.2d 357 (1992). In criminal and civil bench trials, for example, a court
can't make inconsistent and irreconcilable findings. See 17 Kan. App. 2d at 70 (criminal);
McDonnell v. The Music Stand, Inc., 20 Kan. App. 2d 287, 290, 886 P.2d 895 (1994)
(civil). Although the district court is free to depart from its earlier findings, it must at
least provide a logical explanation for doing so. Here, the district court didn't
acknowledge or explain its flip-flop; it simply stated the new findings as if they had been
the only ones issued.

The court's treatment of Falk's testimony highlights this point. Sola-Morales
claimed that a conflict existed because he was "unable to object, in court to a judge, about
the numerous, unauthorized continuances in his case." As Sola-Morales' attorney put it in
oral argument to the district court:

"Mr. Sola-Morales was prevented from being able to approach the court and express his
strenuous objection to any further continuances.
". . . The only time he tries to express his voice about not having a trial and
having it move forward is his motion to dismiss the case because the State has taken all
39

of the continuances up to this point. And with that being withdrawn, and not having an
opportunity to talk to the court, the conflict exists . . . because . . . we believe the
evidence shows Mr. Falk withdrew that motion without the concurrence of Mr. Sola-
Morales."

The court implicitly accepted Sola-Morales' testimony, finding a conflict based on Sola-
Morales' "ability to assert his objection as to continuances personally, rather than through
counsel." His attorney had argued that the only opportunity Sola-Morales had to object
personally to the continuances was the hearing on his motion. On that issue, Falk had
testified that Sola-Morales gave him permission to withdraw the motion; Sola-Morales
testified that he didn't give Falk permission to do so. The court could not have found a
conflict based on Sola-Morales' ability to personally object to continuances unless it
found his testimony more credible than Falk's.

Yet the court's 2017 ruling said that Sola-Morales had not shown either that
"Falk's lies about the continuances generally prevented him from participating in his own
defense" or that "Falk withdrew the motion to dismiss to cover his tracks, or that [Sola-
Morales] was prevented from participating in his own defense." It now found that "Falk's
testimony regarding the continuances [was] more credible than the evidence presented
by [Sola-Morales]." The court didn't explain why Falk's testimony had suddenly become
more credible or Sola-Morales' testimony less so.

Third, the district court made this total reversal by simply adopting the State's
findings verbatim. Kansas courts have long said that a court should adopt a party's
findings only if they are "in accordance with the decision of the court as announced."
(Emphasis added.) English v. English, 53 Kan. 173, Syl. ¶ 3, 35 P. 1107 (1894). The
Kansas Supreme Court discourages the practice because it is susceptible to abuse. Stone
v. City of Kiowa, 263 Kan. 502, 506, 950 P.2d 1305 (1997). Still, we usually find no
abuse of discretion in cases involving verbatim adoption of a party's findings because the
40

findings merely restate what the court has already said itself. E.g., Huffman v. City of
Maize, 54 Kan. App. 2d 693, 703, 404 P.3d 345 (2017). In those cases, we admonish the
court for not making its own findings but ultimately affirm the decision because adopting
one party's findings is not by itself an abuse of discretion. 54 Kan. App. 2d at 703-04.

Here, though, the district court's verbatim adoption of the State's findings is unlike
any other case involving this practice. The court didn't adopt a restatement of its own
findings; it adopted a reversal of its announced findings. The court independently found a
conflict, then it adopted the State's proposal that found no conflict. It's one thing to
announce "there's a conflict" and then adopt one party's findings that also say "there's a
conflict"; it's another to announce "there's a conflict" and then adopt one party's findings
that say "there's not a conflict."

To review, the district court twice found that a conflict of interest existed. The
State responded to Sola-Morales' request that the court reconsider a different finding by
repeating its claim that no conflict had existed—a position the district court had rejected
in its earlier findings. Even so, the court then adopted verbatim the State's proposed
findings, including the finding that no conflict of interest had existed, without
acknowledging that it had reversed course.

Under these circumstances, I would uphold the district court's original finding that
Falk had a conflict of interest. Our court always has jurisdiction to "to correct, modify,
vacate or reverse any act, order or judgment of a district court to assure that any such act,
order or judgment is just, legal and free of abuse." K.S.A. 60-2101(a). Although trial
courts have broad discretion when making factual findings, that discretion is limited by
basic principles of justice. The court here violated those principles when it reversed its
earlier findings without explanation by adopting the State's findings verbatim. That's not
how a justice system works. I would modify the district court's May 2017 order by
reinstating its earlier finding that Falk had a conflict of interest.
41


The majority instead affirms the district court's May 2017 finding—that Falk
didn't have a conflict—because that finding was supported by substantial evidence too.
They're right, of course, that the district court could have found that the evidence
supported a no-conflict finding. To do so, the court would have found Falk's testimony on
the key points more credible than Sola-Morales' testimony. But the court had done the
opposite in its initial oral ruling and its first written one.

So while we must defer to the district court's evaluation of witness credibility, that
principle doesn't authorize the sort of trial-court flip-flop found here. The court's original
finding of a conflict after personally observing the witnesses had to rest on a conclusion
that Sola-Morales' testimony was more credible than Falk's. Given the unique procedural
posture of this case, I would defer to the court's original finding, which it made closer in
time to the hearing, while the testimony was still fresh in its mind, and without using the
discouraged practice of adopting a party's proposed findings verbatim.

Affirming the court's May 2017 finding as supported by substantial evidence
would make sense if that had been the only finding the court had made. But it wasn't.
When the court adopted the State's findings verbatim, it had already found that a conflict
existed and rejected the State's evidence to the contrary. That original finding was
supported by substantial evidence, and no one asked the court to reconsider that aspect of
its earlier ruling. I therefore do not credit the court's May 2017 finding on this point. See
K.S.A. 60-2101(a).


42

II. Falk's Conflict of Interest Adversely Affected the Representation but Did Not
Prejudice Sola-Morales, So a New Trial Is Not Required.

Having determined that a conflict of interest existed, we proceed to the second
question: should Sola-Morales get a new trial? To answer that question, we first must
decide what standard applies to Sola-Morales' ineffective-assistance claim.

Sola-Morales' claim is based on Falk's personal conflict of interest. This type of
ineffective-assistance claim fits under what the Kansas Supreme Court has called the
"Mickens reservation." Sola-Morales, 300 Kan. at 884. Mickens reservation cases involve
conflicts based on defense counsel's obligations to former clients or based on counsel's
personal or financial interests. See Mickens v. Taylor, 535 U.S. 162, 174, 122 S. Ct. 1237,
152 L. Ed. 2d 291 (2002). When the conflict is with some personal interest of defense
counsel, as is the case here, the United States Supreme Court has not said what test
applies to determine whether the defendant should receive a new trial. Sola-Morales, 300
Kan. at 884. So we must decide.

In making that decision, we have two options: the standard from Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which is applied by
the United States Supreme Court to most claims of inadequate representation, or the
lower standard the Court applied in Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64
L. Ed. 2d 333 (1980).

The Strickland standard applies to deficient-performance claims generally and
requires the defendant to show prejudice, meaning a reasonable probability that the result
would have been different but for counsel's performance. 466 U.S. at 687-88. The Cuyler
standard applies when an attorney represents multiple codefendants concurrently. 446
U.S. at 348. In that situation, the Court has noted "the high probability of prejudice
43

arising from multiple concurrent representation, and the difficulty of proving that
prejudice." Mickens, 535 U.S. at 175.

Because of that, Cuyler requires only that the defendant show that a conflict
adversely affected the lawyer's performance. 446 U.S. at 348. If it did, then reversal is
automatic—even if prejudice cannot be shown—because the conflict renders the decision
unreliable. Mickens, 535 U.S. at 172-73. A conflict adversely affects performance when
the conflicted attorney, facing divided loyalties, "proceed[s] to act against the defendant's
interests." 3 LaFave, Israel, King & Kerr, Criminal Procedure § 11.9(d) (4th ed. 2018).
But the defendant cannot show an adverse effect if the lawyer "actually pursued the route
favoring his client, disregarding the conflict of interest." 3 LaFave, Israel, King & Kerr,
Criminal Procedure § 11.9(d) (4th ed. 2018). In short, the defendant must show prejudice
to the proceeding outcome if Strickland applies but only an adverse effect on
representation if Cuyler applies.

Here, though, we don't have multiple concurrent representations; we have an
attorney whose conflict was between the attorney's personal interests and proper
representation of the client. With no United States Supreme Court decision from that
context, we turn to the Kansas Supreme Court for guidance. In each Mickens reservation
case it has considered, the Kansas Supreme Court has applied Cuyler, but it has done so
under circumstances in which it didn't need to decide which test should be applied when
there's a conflict between the defendant and the defense attorney's personal interests.

In State v. Galaviz, 296 Kan. 168, 291 P.3d 62 (2012), the court noted that it
wasn't clear after Mickens whether Strickland or Cuyler applies to personal-conflict
claims. Although Galaviz involved an attorney's successive representation of clients (not
a personal-interest conflict), the court noted that Mickens left open what test applies to
personal conflicts. Galaviz, 296 Kan. at 184. The court applied Cuyler's adverse-effect
test to the successive-representation claim without deciding whether that test was
44

appropriate in Mickens reservation cases. Galaviz, 296 Kan. at 192. It did so because the
State hadn't argued that any other test should apply and because the defendant benefited
from the application of Cuyler's more lenient standard. Galaviz, 296 Kan. at 192. The
court applied Cuyler, then, to a successive-representation conflict because doing so
benefited the defendant and because the State hadn't argued for a different test.

In Cheatham, 296 Kan. at 447-48, the court considered a defense attorney's
financial conflict of interest. The defendant had entered into a flat-fee agreement with his
attorney. He argued that the agreement created a financial conflict by discouraging his
attorney from prioritizing his case. Because Mickens also left open the test applicable in
financial-conflicts claims, the court had to determine whether Strickland or Cuyler
applied. Cheatham, 296 Kan. at 448. The State argued that Cuyler—the easier test for the
defendant to meet—should apply, so the court applied Cuyler's adverse-effects test.
Cheatham, 296 Kan. at 450.

So our Supreme Court applied Cuyler's adverse-effects test in both Galaviz and
Cheatham, but it didn't decide whether it had to do so. That may explain why the Kansas
Supreme Court invited the district court here to "determine which test is applicable in this
Mickens reservation analysis"—Strickland or Cuyler. Sola-Morales, 300 Kan. at 899.

The district court declined this invitation, however, concluding that Sola-Morales
couldn't prevail under either test. The State's brief takes a similar approach, arguing that
Sola-Morales cannot prevail under either standard but offering no reason why we should
apply one or the other. Sola-Morales' brief argues that Cuyler should apply. He contends
that many federal courts apply Cuyler rather than Strickland to personal conflicts like
Falk's.

Sola-Morales is right that many federal appellate courts have applied Cuyler in
cases involving personal conflicts of interest. Our Supreme Court cited several of those
45

decisions in its 2014 opinion. Sola-Morales, 300 Kan. at 896-97 (citing Stoia v. United
States, 22 F.3d 766, 771 [7th Cir. 1994]; Solina v. United States, 709 F.2d 160 [2d Cir.
1983]). But most of the federal cases predated Mickens, which questioned whether courts
should extend Cuyler to personal conflicts of interest.

Cuyler involved a conflict arising from defense counsel's concurrent
representation of codefendants. 446 U.S. at 337. In Mickens, a case involving successive
representation, the Court applied Cuyler's standard because the case "was presented and
argued on the assumption that . . . [it] would be applicable." Mickens, 535 U.S. at 174.
The Court emphasized, though, that Cuyler is an exception to Strickland's prejudice
standard. Mickens, 535 U.S. at 175. The Court said that lower courts had applied Cuyler
to all sorts of conflicts—like an attorney's financial interest in a book deal, an attorney's
interest in teaching, and an attorney's fear of antagonizing a trial judge. 535 U.S. at 174-
75. But the Court said that Cuyler "does not clearly establish, or indeed even support,
such expansive application." While a concurrent representation has a high probability of
prejudice that's difficult to prove, the Court said that "[n]ot all attorney conflicts present
comparable difficulties." 535 U.S. at 175.

Despite that cautionary note, many—perhaps most—federal courts continue to
apply Cuyler to personal-conflicts claims. E.g., Rubin v. Gee, 292 F.3d 396, 402 n.2 (4th
Cir. 2002) (finding that a state court correctly applied Cuyler to a claim based on defense
counsel's personal and financial conflict of interest); Rugiero v. United States, 330 F.
Supp. 2d 900, 906 (E.D. Mich. 2004) (applying adverse effects to a personal conflict,
citing the Sixth Circuit's universal application of Cuyler to all types of conflicts); 3
LaFave, Israel, King & Kerr, Criminal Procedure § 11.9(d) n.184 (4th ed. 2018)
("Although recognizing that the issue is open, . . . federal courts have continued to apply
the automatic reversal rule."). In addition, many state courts have applied the adverse-
effects test beyond situations involving concurrent representation of codefendants. E.g.,
People v. Miera, 183 P.3d 672, 676-77 (Colo. App. 2008); Alessi v. State, 969 So. 2d
46

430, 436 (Fla. Dist. Ct. App. 2007) (collecting Florida Supreme Court cases and applying
Cuyler to a personal and financial conflict); Taylor v. State, 428 Md. 386, 410 n.13, 416,
51 A.3d 655 (2012) ("We join those states continuing to apply [Cuyler] to various types
of conflicts."). But see Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003) (applying
Strickland standard except for multiple-representation conflicts).

Sometimes courts may apply Cuyler, as the Kansas Supreme Court did in Galaviz
and Cheatham based on the arguments the parties have made and because the result is the
same under both Cuyler and Strickland. Here, though, the difference in the standard to be
applied here is determinative; Sola-Morales can't show that his trial's outcome would
have been different without Falk's conflict of interest—his speedy-trial claims are weak,
so the trial would have proceeded just the same even if the speedy-trial motion had been
heard.

The majority has discussed the weakness of the speedy-trial claims. Sola-Morales
had no statutory speedy-trial claim because he was being held in more than one criminal
case. See State v. Montes-Mata, 292 Kan. 367, Syl. ¶ 2, 253 P.3d 354 (2011). As for his
constitutional speedy-trial right, the time from arrest to trial (one year) wasn't especially
long, he was being held on other charges too, and the only potential prejudice to Sola-
Morales was the loss of Duarte's testimony, which seemed relatively unimportant. So
even if the speedy-trial motion had been presented to the district court, Sola-Morales has
not shown that the district court should have found a speedy-trial violation and dismissed
the charges against him. That means the case would still have proceeded to trial, and
Falk's conflict didn't affect his representation at trial. So Sola-Morales can't satisfy the
Strickland requirements.

But if Cuyler applies, Sola-Morales has met the requirement to show that the
conflict affected the adequacy of Falk's representation. See State v. Moyer, 309 Kan. 268,
Syl. ¶ 5, 434 P.3d 829 (2019); Cheatham, 296 Kan. at 448; Galaviz, 296 Kan. at 183-84.
47

No one disputes that Sola-Morales was brought to the courthouse on the day of the
hearing on his motion but never entered the courtroom. Sola-Morales had a right to be
heard and to be present for that hearing. See K.S.A. 2005 Supp. 22-3405(1); State v.
Calderon, 270 Kan. 241, 245, 13 P.3d 871(2000). And no one disputes that Falk
withdrew the motion that day—Falk said so in his testimony but claimed that Sola-
Morales gave him permission. Sola-Morales denied ever giving Falk permission to
withdraw the motion and testified that Falk told him that the court dismissed his motion.
Sola-Morales also testified that Falk told him he should not attend the hearing. The trial
court necessarily accepted Sola-Morales' testimony on this point over Falk's in its initial
oral and written rulings.

By telling Sola-Morales that his motion had been dismissed, Falk implied to Sola-
Morales that "the issue of denial of speedy trial rights was irrevocably closed." Sola-
Morales, 300 Kan. at 896. That decision "suggest[s] a chosen path of self-interest when
faced with divided loyalties." 300 Kan. at 896. An attorney without Falk's conflict would
have made sure that Sola-Morales got to be present in court to hear any discussion about
his self-prepared motion to dismiss and to provide his own comments. Perhaps some
argument beyond those we've seen could have been developed had Falk properly
presented the speedy-trial issue when Sola-Morales raised it. But Falk chose his personal
interest over his client's; Sola-Morales has shown that Falk's conflict of interest adversely
affected the representation.

Because of these apparently divergent results under the Cuyler and Strickland
standards, I would decide which standard should be applied when the conflict is with the
attorney's personal or financial interests. At least in this case, the attorney faced one
primary decision in which the attorney chose between his personal interest and the
client's interest. In that circumstance, there's no difficulty in figuring out whether
prejudice occurred—we can compare the two courses of action side by side. The Cuyler
standard is an exception to the normal rule, and Mickens suggests it applies only when
48

there's some "difficulty of proving [the] prejudice." Mickens, 535 U.S. at 175. I therefore
would not apply Cuyler here.

I conclude, then, that the Strickland standard applies in this case. Sola-Morales has
not shown a probability that the outcome of the case would have been any different
absent the attorney's conflict because even if his speedy-trial motion would have been
presented, the case would still have proceeded to trial. And there's no showing that the
attorney's conflict affected his representation of Sola-Morales at trial. On this basis, I
agree that Sola-Morales is not entitled to a new trial.