In North Dakota, 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 counsel’s ineffectiveness in each of these three areas.

Ineffective Assistance of Trial Counsel

For a criminal defendant in North Dakota to obtain relief on a claim of ineffective assistance of counsel, the defendant must prove: 1) that counsel did not provide reasonably effective assistance: and, 2) that counsel’s deficient performance caused prejudice. If a North Dakota defendant fails to establish either requirement when presenting his or her ineffective assistance of counsel claim, the court is not obligated to examine the other requirement. See: Johnson v. State, 681 N.W.2d 769 (N.D. 2004).

To meet he second requirement, the defendant must show that the deficient performance prejudiced his or her defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. See: Olsen v. State, 852 N.W.2d 372 (N.D. 2014).

To avoid summary dismissal of an ineffective assistance of counsel claim, the post-conviction applicant must overcome the presumption that counsel’s performance was within the broad range of reasonableness. See: Klose v. State, 752 N.W.2d 192 (N.D. 2008).

Ineffective Assistance of Appellate Counsel

To establish ineffective assistance of appellate counsel in North Dakota, the defendant must show: 1) that counsel’s performance was deficient  and, 2) that the petitioner was prejudiced be the deficient performance. See: Kalmio v State, 915 N.W.2d 655 (N.D. 2018).

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 North Dakota, the defendant must show that counsel’s performance was deficient and that counsel’s deficient performance caused prejudice. The prejudice requirement can be satisfied by establishing that there is a reasonable probability that, but for counsels errors, he or she would not have pleaded guilty and would have insisted on going to trial. See: Morris v. State, 893 N.W.2d 475 (N.D. 2017).

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?

If you, or someone you know, will be pursuing any type of ineffective assistance of counsel claim in Alabama, our book, The Colossal Book of Criminal Citations, is a crucial resource in the pursuit of justice. Order your copy today, or on behalf of someone incarcerated.