☢ test - Í

wanted to buy some lake property and if the money was not used for experts, he would return the $10,000 plus $1,000 within 30 days. The attorney wrote Caudell an IOU for the money. The attorney testified that $2,500 was used for the expert, another undetermined amount was used for fees on an aggravated assault case involving Caudell, and he returned ‘about five, six thousand dollars’ to Caudell. The attorney testified that he did not have a written fee agreement with Caudell, and that he did not put the $10,000, which was paid to him in cash, in an escrow account, but kept it in his pocket.” Held, an illegal fee agreement may result in such a conflict of interest as to require reversal, but here, the trial court found that the attorney refunded the unearned fee; thus defendant “has failed to show a conflict of interest ‘with respect to a material factual or legal issue or to a course of action.’” Jackson v. State, 259 Ga.App. 566, 578 S.E.2d 181 (February 11, 2003). “It is a fundamental principle that the Sixth Amendment guarantee of effective assistance of counsel includes the right of an accused to be represented by an attorney free of any conflicts of interest. There is a presumptive conflict of interest when one attorney is required to represent multiple defendants over their objection. However, if, as here, the defendants do not object to the multiple representation by the attorney until after trial, there is no benefit of a presumption and the defendants must show that an actual conflict of interest existed which impaired their attorney's performance on their behalf. To justify separate counsel, the conflict may not be merely theoretical or speculative, but must have some substantial basis in fact. The test is whether the representation deprived either defendant of the undivided loyalty of counsel. In other words, did counsel slight one defendant to favor the other?” Accord, Inglett v. State , 239 Ga.App. 524, 521 S.E.2d 241 (July 28, 1999) (defendants expressly consented to multiple representation at trial, only claiming that some of them had wanted to plead guilty after being convicted). Petty v. State, 260 Ga.App. 38, 579 S.E.2d 23 (February 6, 2003). Defense counsel did not have an automatic conflict of interest because he “had served as a part-time special assistant attorney general (SAAG) representing DFACS in certain cases” (not regarding defendant or his family) prior to his representation of defendant. Partner’s SAAG work also was not a conflict. “A defendant must demonstrate that ‘an actual conflict of interest adversely affected his lawyer’s performance.’” “‘A mere possibility of conflict is insufficient to impugn a criminal conviction amply supported by competent evidence.’” Quoting Hudson v. State , 250 Ga. 479, 299 S.E.2d 531 (1983). Accord, Debaeke v. State , 270 Ga.App. 169, 605 S.E.2d 882 (October 22, 2004). Shabazz v. State, 259 Ga.App. 339, 577 S.E.2d 45 (January 29, 2003). Conviction based on guilty plea to incest reversed. “[A]dvising and aiding Shabazz in the entry of a guilty plea to an offense for which as a matter of law there was no factual basis, falls outside the range of competence demanded of attorneys in criminal cases” (emphasis in original). Although there was an adequate factual basis as to the second count, fact that ineffective assistance of counsel was shown “undermines the voluntariness and the validity of the plea as to both counts of the indictment.” Overruled on other grounds, Adams v. State, 285 Ga. 744, 683 S.E.2d 586 (September 28, 2009). Woods v. State, 275 Ga. 844, 573 S.E.2d 394 (November 26, 2002). “A defendant who does not object to joint representation to the trial court must show not only a conflict of interest, but that the conflict adversely affected his attorney’s performance. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); [cit.]. Thus, a defendant is required to show ‘an actual lapse in representation.’ Cuyler, above, 446 U.S. at 349, 100 S.Ct. 1708. ‘The premise of a defendant’s claim that he was denied conflict-free assistance because of joint representation must be that his lawyer would have done something differently if there was no conflict.’ [Cit.]” Here, the joint representation may have harmed Woods’ co-defendant, but it only worked to Woods’ benefit, so he can’t complain. Accord, Baggs v. State , 265 Ga.App. 282, 593 S.E.2d 734 (January 26, 2004) (counsel recognized the conflict pre-trial, new counsel was appointed, defendant never objected, no harm shown); Kendrick v. State , 279 Ga.App. 263, 630 S.E.2d 863 (May 9, 2006) (“Kendrick made no objection at trial to counsel’s joint representation. In fact, when the trial court queried Kendrick on the issue, Kendrick responded by stating that he wanted to be tried with Kinney and that he knew of no conflict with respect to the evidence at trial.”). Bryant v. State, 274 Ga. 798, 560 S.E.2d 23 (February 25, 2002). Trial court properly denied defendant’s motion for new trial. Held, defense counsel’s acceptance of payment from the county and fees from defendant’s family did not constitute a breach of duty of loyalty as circuit defender’s office and defendant’s family shared identical interest of putting forth an effective legal defense and the record demonstrated a spirited defense against prosecution’s strong case. Ellis v. State, 272 Ga. 763, 534 S.E.2d 414 (September 11, 2000). Trial court erred by denying defendant’s motion to withdraw guilty plea to armed robbery, based on ineffective assistance of counsel. Defense counsel had an actual