In Virginia, ineffective assistance of counsel claims are challenged in three areas: 1) trial counsel ineffectiveness  2) appellate counsel ineffectiveness  and, 3) plea counsel ineffectiveness. These areas of ineffectiveness contain common requirements. First, a defendant must prove that counsel’s representation fell below ordinary attorney representation. Second, the defendant must prove their case was harmed in some manner due to counsel’s conduct. The case of Strickland v. Washington, 104 S.Ct. 2052 (1984) provides excellent guidance when challenging any ineffectiveness claim.

The prejudicial component is what differs most between trial, appellate and plea counsel’s ineffectiveness. Generally, establishing trial counsel prejudice requires a defendant to prove that had counsel been effective, the outcome of the trial or sentence would have been different.

For appellate counsel, prejudice can be established by proving an attorney abandoned clearly stronger issues in comparison to issues which were presented in the appellate brief. The case of Smith v. Robbins, 120 S.Ct. 746 (2000) provides excellent guidance when challenging the ineffectiveness of appellate counsel.

For a defendant who entered into a plea agreement, the person usually must establish that had counsel been effective, the plea agreement wouldn’t have been accepted and the defendant would have instead proceeded to trial. The case of Hill v. Lockhart, 106 S.Ct. 366 (1985) provides excellent guidance when challenging the ineffectiveness of counsel surrounding the acceptance of a plea agreement.

Now, let’s identify where you can find the State’s requirements for challenging counsel’s ineffectiveness in each of these three areas.

Ineffective Assistance of Trial Counsel

For a criminal defendant in Virginia to be successful in obtaining relief on a claim of ineffective assistance of counsel, the petitioner must satisfy two requirements: 1) the defendant must show that counsel’s performance was deficient  and, 2) the deficient performance resulted in prejudice to the defendant. If a defendant in Virginia fails to establish either requirement when presenting his or her ineffective assistance of counsel claim, the court is not obliged to examine the other requirement. See: Dominguez v. Pruett, 756 S.E.2d 911 (Va. 2014).

To satisfy the first requirement, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. The court reviewing a defendant’s claim will indulge a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. See: Shaikh v. Johnson, 666 S.E.2d 325 (Va. 2008).

To satisfy the second requirement, the defendant must affirmatively prove prejudice and show that counsel’s defective performance actually had an adverse effect on the defense. This requirement has been called “highly demanding,” and a “heavy burden.” This element requires the defendant to establish a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See: Byrd v. Johnson, 708 S.E.2d 896 (Va. 2011).

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Ineffective Assistance of Appellate Counsel

To establish ineffective assistance of appellate counsel in Virginia, the defendant must show: 1) that counsel’s performance was deficient  and, 2) that the petitioner was prejudiced by the deficient performance. See: Jerman v. Director, Department of Corrections, 593 S.E.2d 255 (Va. 2004).

When analyzing the performance of appellate counsel, it’s important to recognize that an attorney is not required to argue every possible issue on appeal. An appellate attorney need not, and should not, raise every non-frivolous claim. Rather, counsel should consider all available issues and present the claims which maximize the likelihood of appellate success.

Ineffective Assistance of Plea Counsel

To establish ineffective assistance of plea counsel in Virginia, the defendant must show that his counsel’s performance was deficient and that counsel’s deficient performance prejudiced him or her. The prejudice requirement is satisfied by establishing that there is a reasonable probability that, but for counsel’s errors, he or she would not have pleaded guilty and would have insisted on going to trial. See: Clarke v. Galdamez, 789 S.E.2d 106 (Va. 2016).

To learn more about presenting an ineffective assistance of counsel claim, I encourage you to read my post titled, What is ineffective assistance of counsel?

The Colossal Book of Criminal Citations has a complete section filled with case references to help a defendant support an ineffective assistance of counsel claim. There are also subsections providing case citations specific for trial, appellate, and post conviction relief counsel. With over 120 topically organized sections, nearly every defendant will find substantive case references to help identify and detail the acts or omissions wherein counsel may have performed deficiently.

The Colossal Book of Criminal Citations will also help a defendant before and during the criminal trial phase itself. Every criminal defendant should be active in their case’s progression and presentation. By becoming familiar with the many topics covered in this book, a defendant can ensure that counsel is functioning in an effective manner before a jury determination is ever rendered. Buy now