People v. Bailey

Opinion

HANLON, J.

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Defendant Reginald Carl Bailey appeals from the judgment entered after a jury convicted him of one count of sale of cocaine base

[1254]

and one count of possession for sale of cocaine base. (Health & Saf. Code, §§ 11352, 11351.5.) He was sentenced to eight years in state prison.

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I, II

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III

Defendant asserts that he was deprived of the effective assistance of counsel by his trial counsel’s comments on his manner during testimony and by counsel’s failure to object to inadmissible evidence. Defendant’s appointed appellate counsel was also his appointed counsel at trial; counsel notes that he raises these issues because his client asks that this court “be informed of all arguable instances of ineffective assistance.”

We believe that there is an inherent conflict when appointed trial counsel in a criminal case is also appointed to act as counsel on appeal. We therefore discourage the practice of allowing such appointments even when, as here, the client signs a declaration under penalty of perjury that he does not believe “. . . there is any reason for another lawyer to review the records of my case regarding potential issues of ineffective assistance of counsel. I do not believe that such issues exist and I make no such request.” We know, of course, that defendant later specifically requested his counsel raise such issues on appeal. In fact, defendant may now be estopped from raising such issues because of his declaration. Such manipulation by a defendant who, from the moment the trial began,

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attempted to use the issue of the adequacy of counsel as a ploy to stall proceedings will undoubtedly result in further proceedings on appeal to keep the “game” going.

The American Bar Association’s Model Rules of Professional Conduct, rule 1.7(b) provides: “A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibility