By R. Davis
In Alaska, 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.
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 Alaska to establish a prima facie case of ineffective assistance of trial counsel, a defendant’s pleadings must show that: 1) the attorney’s performance fell below the standard of minimal competence expected of an attorney experienced in criminal law and 2) but for the attorney’s incompetent performance, there is a reasonable possibility that the outcome would have been different. See: Risher v. State, 523 P.2d 421 (Alaska 1974).
The holding established in Risher requires a defendant to show there is “a reasonable possibility” that the outcome of the trial would have been different but for the attorney’s deficient performance. This is a less demanding standard than the “reasonable probability” standard required by the United States Supreme Court in Strickland v. Washington. See: Lambert v. State, 435 P.3d 1011 (Alaska App. 2018).
When claiming ineffective assistance of counsel, a defendant in Alaska cannot rely on conclusory or speculative allegations. In almost all circumstances, to show ineffective assistance of counsel, a defendant should submit an affidavit from the counsel he alleges provided the ineffective assistance to allow the court to decide the defendant’s claim. See: State v. Jones, 759 P.2d 558 (Alaska App. 1988).
Ineffective Assistance of Appellate Counsel
To establish a claim of ineffective assistance of appellate counsel in Alaska, a defendant must show a prima facie case that appellate counsel’s choice of issues was incompetent. To meet this requirement, the defendant must establish: 1) that the proposed additional issue is significantly stronger than the issues that were raised in the appeal 2) that the appellate attorney had no valid tactical reason for failing to include this particular issue and, 3) that, if the proposed issue had been included, there is a reasonable possibility that the outcome of the appeal would have been different. See: Lindeman v. State, 244 P.3d 1151 (Alaska App. 2011).
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 nonfrivolous 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 a claim of ineffective assistance of plea counsel in Alaska, the defendant must prove by clear and convincing evidence that he or she received ineffective assistance of counsel from the attorney who advised her to enter the plea. This test for ineffective assistance of counsel has two prongs: 1) the defendant must prove by clear and convincing evidence that the attorney failed to provide legal assistance within the range of competence expected from criminal law practitioners and 2) the defendant must show that there is a reasonable possibility that the attorney’s lack of competence affected the outcome of the proceedings.
In order to render effective assistance during a plea, an attorney must be sufficiently familiar with the facts of the case and the applicable law so that the attorney can fully advise the defendant of all available options. See: Arnold v. State, 685 P.2d 1261 (Alaska App. 1984).
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?
What legal book helps present an ineffective assistance of counsel claim?
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