In Hawaii, 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 requirement for challenging counsels ineffectiveness in each of these three areas.

Ineffective Assistance of Trial Counsel

In Hawaii, to establish a claim of ineffective assistance of counsel, the defendant must meet a two part test. First, the defendant must establish that there were specific errors or omissions reflecting counsel’s lack of skill, judgment, or diligence. Then, the defendant must illustrate that such errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense. To satisfy this second prong, the defendant needs to show a possible impairment, rather than a probable impairment, of a potentially meritorious defense. A defendant does not need to prove actual prejudice. See: Briones v. State, 848 P.2d 966 (Haw. 1993).

In any ineffective assistance of counsel claim, counsel’s actions or omissions alleged to have been error, but which had an obvious tactical basis for benefitting the defendant’s case, will not be subject to scrutiny.

Hawaii’s ineffective assistance of counsel standard is more protective than the federal standard found in Strickland v Washington. See: State v. Aplaca, 837 P.2d 1298 (Haw. 1992).

Ineffective Assistance of Counsel Hawaii
Photo by Rachael Marker on Unsplash

Ineffective Assistance of Appellate Counsel

In Hawaii, to establish a claim of ineffective assistance of appellate counsel, the defendant must meet the same two part test as detailed in Briones. First, the defendant must establish that there were specific errors or omissions reflecting counsel’s lack of skill, judgment, or diligence. Then, the defendant must illustrate that such errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense. To satisfy this second prong, the defendant needs to show a possible impairment, rather than a probable impairment, of a potentially meritorious defense. See: State v. Mundon, 219 P.3d 1126 (Haw. 2009).

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

In Hawaii, to establish a claim of ineffective assistance of plea counsel, the defendant must meet the same two part test as detailed in Briones. First, the defendant must establish that there were specific errors or omissions reflecting counsel’s lack of skill, judgment, or diligence. Then, the defendant must illustrate that such errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense. To satisfy this second prong, the defendant needs to show a possible impairment, rather than a probable impairment, of a potentially meritorious defense. See: Crabbe v. State, 310 P.3d 1051 (Haw. 2013).

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