NOT TO BE PUBLISHED

OPINION

CLAYTON, JUDGE.

Stephen Pierce, Appellant, appeals the $17,000 restitution amount set by the Scott County Circuit Court in its judgment entered February 2, 2010. The basis of this appeal centers on a conflict of interest held by his defense attorney. Finding clear error in the attorney's representation due to his conflict of interest, as well as error in the court's failure to follow the procedures of Kentucky Rules of Criminal Procedure (RCr) 8.30, we vacate and remand both the sentencing and restitution hearings of Stephen Pierce. However, we order that Pierce's guilty plea stand for the reasons stated below.

FACTS

Pierce was caught red handed loading various property items into a truck by the police who had received reports of suspicious activity. The lot was owned by Friend Tractor Company, which had closed some five years earlier. As admitted by Pierce, this was his second time looting the property. His first burglary of the lot was supposedly conducted along with a man by the name of Frank Pergrom, whom Pierce alleges he received the idea from and who had burglarized the lot on previous occasions.

Pierce pled guilty to two counts of Burglary in the Third Degree after receiving an offer by the Commonwealth that would recommend to the judge he pay restitution and serve three year's time, with probation left to the discretion of the judge. At the restitution hearing, Pierce told the court that he had only successfully burglarized the place once before, as per his guilty plea. In admitting to the burglaries, his entire defense at the hearing centered on passing blame off on Frank (and any others that may have contributed), so as to lessen the amount of restitution that he would be liable for. Pierce was represented by Casey Holland, an Assistant Public Advocate. Holland, began to question Pierce about Frank, but suddenly stopped and told the court that:

Appellee's brief at 7 (VR, 1/22/2010, 11:04:00-11:04:30).

Upon hearing this, the Commonwealth stated that it was in a difficult position if there was another man with information about the burglaries. However, being that Frank was a fugitive, and because Holland said he had not heard from him in some years, the Commonwealth decided it would be in the best interest of the victim to continue so that the victim would not have to wait any longer to receive restitution. After this revelation, the Court neither instructed Pierce as to the consequences of Holland's dual representation, nor had him sign a waiver stating that he knew of the conflict but would wish to retain his counsel nonetheless.

Having taken an inventory of their lot, Friend Tractor Company estimated the approximate value of all the items missing at $12,000. They further claimed that because the business had been ransacked and left in total disarray, that its restoration would cost around $5,000. With little more to go by other the Pierce's own allegations that others had burglarized the property before him, the trial court held Pierce jointly and severally liable for the full $17,000. After the restitution hearing, a sentencing hearing was held where Pierce was given probation for five years.

Pierce now appeals the restitution hearing's finding that he is liable for the entire $17,000 in damages. He contends that KRS 533.030 precludes the court from finding him liable for restitution of crimes for which there is no evidence of him having committed. He argues that the reason he was unable to successfully employ this defense at the restitution hearing was due to his attorney's conflict of interest in representing the very man whom his entire defense depended on.

DISCUSSION

Unlike many conflict of interest cases, where the crux of the arguments center on whether a conflict existed at all, here, the conflict is stipulated to exist. The Commonwealth whole heartedly agrees that Pierce's attorney had a conflict of interest in representing him and that he was in fact adversely affected by his lawyer's performance. The narrow issue then before this court is to determine the point at which a client is prejudiced when his attorney has such a conflict. Put another way, whether this conflict of interest automatically reverses all actions by the conflicted defense attorney, or only certain parts of the attorney's representation of his client?

Pierce received three years probation. He alleges that the only prejudice he received from Holland's representation occurred during the restitution hearing. He wishes for his guilty plea and sentence to stand, arguing only the restitution hearing need be reversed or retried. The Commonwealth, on the other hand, insists that all of the attorney's representation was tainted, and therefore all three proceedings on record — the plea, the restitution hearing, and the sentence -should be vacated. Should the Commonwealth's theory be adopted, Pierce's plea bargain would be vacated, and he would once again face ten years' imprisonment (five years for each count of burglary).

RCr 8.30 protects defendants from prejudicial actions by their own attorneys due to a conflict of interest and places affirmative duties on both the trial court and an attorney to prevent such prejudice. Com. v. Holder, 705 S.W.2d 907, 908 (Ky. 1986). RCr 8.30 does this by requiring a conflicted attorney to either withdraw from representing one of the clients or obtain a written waiver from both. It also places similar responsibilities on the trial court. The court must advise the defendant "that what may be or seem to be in the best interests of one client may not be in the best interests of another," and if the defendant still chooses to retain his counsel, the court must obtain a written waiver stating such. RCr 8.30. Nonetheless, Kentucky courts have held that a failure by a trial judge to comply with this statute is "not presumptively prejudicial and does not warrant automatic reversal." See Kirkland v. Com., 53 S.W.3d 71, 75 (Ky. 2001). An alleged "violation of RCr 8.30 simply open[s] the door for a case-by-case evaluation to determine whether a defendant had in fact been prejudiced by such a violation." Id. at 74; Murphy v. Com., 50 S.W.3d 173, 182-183 (Ky. 2001), overruling Peyton v. Com., 931 S.W.2d 451 (Ky. 1996) (case-by-case determination is appropriate regarding whether RCr 8.30 violation is reversible error); Mitchell v. Com., 323 S.W.3d 755, 763 (Ky. App. 2010).

Furthermore, as a practical matter, the trial court's duty under RCr 8.30 is not triggered "until the trial court is aware of the dual representation or can reasonably be charged with notice thereof." Jackson v. Com., 3 S.W.3d 718, 720 (Ky. 1999). "[A] conflict does not come into being only when the potential turns into actual prejudice; it exists from the instant that inconsistent duties or interests arise." Beard v. Com., 302 S.W.3d 643, 647 (Ky. 2010).

As for an attorney's conflict of interest when the defendant has entered a plea of guilty, we find the federal case of Thomas v. Foltz, 818 F.2d 476, 55 USLW 2667 (6th Cir. 1987) instructive. The primary question in the guilty plea context is whether the plea was "a voluntary and intelligent choice" made by the defendant. North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed. 162 (1970). Therefore, the court of Thomas held that:

818 F.2d at 480 (Internal citation and footnote omitted).

Similar to the holding in Beard, the conflict here existed from the instant Holland's inconsistent duties arose. 302 S.W.3d at 647. The trial court was therefore required to follow the affirmative duties of RCr 8.30 upon its discovery of Holland's conflicting interests. The Court became aware of his inconsistent duties at the restitution hearing. This conflict forced Holland to refrain from asking Pierce any questions that would have implicated his other client, Frank, as being involved in the burglaries. Given that even the Commonwealth recognizes the inadequate nature of this representation, it is without question that the restitution hearing must be vacated.

The sentencing hearing must also be vacated, despite Pierce claiming prejudice from only the restitution hearing. After the court became aware of Holland's inconsistent duties at the restitution hearing, it did not follow RCr 8.30 procedures and an actual prejudice resulted from this conflict; all of Holland's representation thereafter became tainted. It is not for this court to infer that a certain part of Holland's representation was prejudicial simply because his client received an unfavorable outcome. Neither will we infer that a certain part was represented faithfully and dutifully, simply because his client happened to receive an outcome that was favorable.

Furthermore, RCr 8.30 places affirmative duties not only on the attorney, but on the court as well. The sentencing and restitution hearings are not two disconnected and independent procedures. The court's failure to follow RCr 8.30 is just as prejudicial and in error at the sentencing hearing as it was at the restitution hearing. The court committed structural error in not following the procedures of RCr 8.30 upon its discovery of Holland's conflict of interest. The sentencing hearing, which followed the restitution hearing, must be vacated as well.

Finally, we must analyze whether Pierce's guilty plea should stand. We certainly recognize that prejudice may occur during an attorney's pretrial conferencing with his client. In this particular case, it is advocate Holland's representation of Pierce during the plea negotiations that the Commonwealth argues holds the possibility of prejudice. We do not know what privileged advice his attorney may have given him in accepting the plea. Nor will it ever be known what advice his attorney refrained from giving him. However, despite this uncertainty, we find no prejudice existed. Indeed, it seems quite the opposite. Not only does Pierce decline to claim prejudice, the briefs of both parties suggest that he received a rather favorable bargain for his guilty plea. The question must then be: even in the absence of a claim by the defendant that he was prejudiced, does the mere possibility of prejudice create an automatic reversal of his plea? We believe it does not.

"A violation of RCr 8.30, . . . a questionable violation, which does not result in any prejudice to the defendant, should not mandate automatic reversal. Such a result defies logic and ignores the principles of judicial economy." Murphy, 50 S.W.3d at 183. As stated in the analysis above, the trial court was not required to follow RCr 8.30 procedures if it was not aware of the conflict of interest. Jackson, 3 S.W.3d at 720. Just as in Beard, the conflict of interest existed from the instant Pierce's attorney's inconsistent duties arose. 302 S.W.3d at 647. As the record shows, the moment the inconsistent duties arose was when Holland needed to cast blame on his other client during the restitution hearing. Thus, his representation of both Frank and Pierce did not conflict during the plea negotiations and therefore his actions did not conflict with RCr 8.30.

Additionally, Pierce does not allege that his attorney had a conflict of interest at the time that affected his entrance of a voluntary and intelligently made guilty plea. Mr. Holland, after all, had not even heard from Frank in many years. Pierce's plea, therefore, does not meet either element of the of Thomas test: (1) that there was an actual conflict of interest, . . . and (2) that the conflict adversely affected the voluntary nature of the guilty plea entered by the defendant. 818 F.2d at 480 (Internal citation and footnote omitted).

HOLDING

In limiting our decision to the instant case, we find that justice is best served in allowing the guilty plea to stand. Pierce does not claim he received prejudicial representation during the plea bargaining stage, nor do we find actual prejudice to have existed so as to invoke the procedures of RCr 8.30. However, Pierce was prejudiced by his attorney's conflict of interest, as well as the court's failure to follow RCr 8.30's procedures, during both the restitution hearing and the sentencing hearing. As such, the restitution and sentencing hearing are hereby vacated and this action is remanded for a new restitution and sentencing hearing.

TAYLOR, CHIEF JUDGE, CONCURS IN RESULT ONLY.

LAMBERT, SENIOR JUDGE, CONCURS.