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Counsel – Conflict of Interest – Representation of Defendant by Prosecutor in Prior Case – Postconviction Motion to Disqualify – Actual Conflict Required

State v. Christopher M. Medina, 2006 WI App 76
For Medina: Daniel P. Ryan

Issue/Holding:

¶33      The circuit court here accepted the district attorney’s testimony that he did not remember any conversation with Medina during the prior representation. It also found that the district attorney did not refer to any information at sentencing from the prior representation that was not a matter of public record. There is no basis for disturbing these findings. Medina points to no other evidence that might arguably show his interests were adversely affected because the district attorney, having previously represented him at sentencing in the misdemeanor theft case in 2001, is now prosecuting him for these different charges of burglary. We conclude Medina has failed to show by clear and convincing evidence that the district attorney had a competing loyalty that adversely affected Medina’s interests in this case. The circuit court therefore correctly denied his motion for a new trial.

Counsel pointed out that “the presentence report referred to the earlier misdemeanor theft, and at sentencing the prosecutor referred the court to Medina’s prior record, pointed out that Medina had been convicted of the misdemeanor theft, and referred to prior probation revocations, which included that for the misdemeanor theft,” ¶7. Thus, the court’s observation that the prosecutor relied only on matters of public record is probably crucial to the holding. Had the prosecutor done more than simply “refer” to these matters – had he instead revealed some client confidence – then the outcome might have been different.

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