Is a defendant's Sixth Amendment right to counsel, and the right to control the objective of the defense, violated, under the Court's recent decision of McCoy v. Louisiana, 138 S. Ct. 1500 (2018), when, after settling on an innocence defense the client desired, and after informing the jury that the client is innocent, counsel concedes, during closing argument, guilt of some of the charged offenses without first informing and consulting the client?

QUESTION PRESENTED Roger Epperson has always maintained his innocence, desired an innocence defense, and understood trial counsel would present an innocence defense. Counsel, however, conceded guilt on some of the charged offenses, as the lower court expressly recognized, after telling the jury during opening statements that Epperson was innocent of all charges (two murders, robbery, and burglary, all as either a principal or an accomplice) and that the defense would ask the jury to render a not guilty verdict on all charges. Without first informing or consulting Epperson, during cross-examination of a prosecution witness the day before the trial ended, trial counsel asked the witness, “now the plan was for Roger [Epperson] to wait in the automobile, right?” She answered affirmatively, only for trial counsel to then elicit from her that she had heard Epperson say after the crime that he could see his codefendants enter the victims’ home. The next day, also without first consulting Epperson or even informing Epperson that counsel had unilaterally decided to abandon the innocence defense Epperson had informed counsel he wanted presented, trial counsel told the jury that Epperson had waited in the getaway car while his codefendants committed the robbery, burglary, and murders. Not only does that concede guilt of burglary and robbery, it was also sufficient to find Epperson guilty of murder by complicity, as the jury found. In post-conviction proceedings, Epperson argued that trial counsel presented inconsistent theories when he began by telling the jury Epperson was innocent, but then conceded guilt. The post-conviction court rejected the claim, finding, as the lower court did in Hashimi v. United States, which the Court recently granted, vacated, and remanded in light of McCoy v. Louisiana, that trial counsel made a strategic decision to concede guilt of some of the charged offenses, and the strategic decision was reasonable. While Epperson’s case was pending on appeal, this Court decided McCoy v. Louisiana, 138 S. Ct. 1500 (2018), holding that counsel cannot concede guilt when the defendant desires an innocence defense. In light of McCoy, Epperson argued that his constitutional rights were violated when counsel conceded guilt over his request that counsel present an innocence defense, and requested remand to further develop the facts in this regard. The Kentucky Supreme Court found that trial counsel “concedeld] involvement in the robbery and burglary.” Epperson v. Commonwealth, 2018 WL 3920226, *4 (Ky.). Yet, the court denied a remand and rejected the McCoy claim because “[t]his concession does not appear to be the type of concession upon which McCoys holding is predicated,” and Epperson “has not evidenced intransigent i or vociferous objection to trial counsel’s strategy ... at every opportunity, before and during trial, both in conference with his lawyer and in open court.” Jd. at *10-12. This gives rise to the following question presented, for which a summary grant, vacate, and remand for further proceedings in light of McCoy would be appropriate. This is particularly so because that is exactly what the Court did in Hashimi v. United States, where counsel also conceded guilt during closing argument without first informing Hashimi, and where the record was not entirely clear that Hashimi requested counsel refrain from admitting guilt. Is a defendant’s Sixth Amendment right to counsel, and the right to control the objective of the defense, violated, under the Court’s recent decision of McCoy v. Louisiana, 138 S. Ct. 1500 (2018), when, after settling on an innocence defense the client desired, and after informing the jury that the client is innocent, counsel concedes, during closing argument, guilt of some of the charged offenses without first informing and consulting the client? ii