In Pennsylvania, 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

In Pennsylvania, the test for ineffective assistance of counsel is the same as the two part performance and prejudice standard set forth by the United States Supreme Court in Strickland v. Washington. However, Pennsylvania has divided the performance element into two sub-parts dealing with arguable merit and reasonable strategy. See: Commonwealth v. Washington, 927 A.2d 586 (Pa. 2007).

Therefore, to succeed on an ineffectiveness claim, a petitioner must demonstrate that: 1) the underlying claim is of arguable merit  2) counsel had no reasonable basis for the act or omission in question  and, 3) he suffered prejudice as a result, i.e., there is a reasonable probability that, but for counsel’s error, the outcome of the proceeding would have been different. See: Commonwealth v. Laird, 119 A.3d 972 (Pa. 2015).

When evaluating claims regarding the ineffectiveness of counsel, a court begins with the presumption that counsel is effective.

Consequently, any challenge to trial counsel’s strategy and tactics will usually be unsuccessful unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued. See: Commonwealth v. Spotz, 84 A.3d 294 (2014).

Ineffective Assistance of Appellate Counsel

In Pennsylvania, to prevail on a claim of ineffective assistance of appellate counsel for failure to raise an allegation of trial counsel ineffectiveness on direct appeal, a PCRA petitioner must present a “layered” claim. This is done by presenting an argument as to each of the three prongs identified above in Laird for each layer of allegedly ineffective representation. See: Commonwealth v. Paddy, 15 A.3d 431 (Pa. 2011).

Layered claims are different from stand-alone claims of appellate counsel ineffectiveness. With a stand-alone claim, the entire focus is upon the performance of appellate counsel, which triggers the special concerns outlined in cases such as: Commonwealth v. May, 898 A.2d 559 (Pa. 2006).

To prevail on a stand alone claim, the PCRA petitioner must show exactly how appellate counsel was ineffective, by offering additional evidence or controlling authority, missed by direct appeal counsel, that would have changed the appeal outcome. Or, by specifically alleging the winning claim or distinct legal theory that appellate counsel failed to recognize and then by showing how the appeal, as pursued, was incompetent by comparison. See: Commonwealth v. Paddy, 15 A.3d 431 (Pa. 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 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 Pennsylvania, to prevail on a claim of ineffective assistance of plea counsel, counsel’s ineffectiveness will serve as a basis for relief only if the ineffectiveness caused the defendant to enter an involuntary or unknowing plea.

Where the defendant enters his plea on the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases. See: Commonwealth v. Wah, 42 A.3d 335 (Pa. Super. 2012).

Moreover, to prove prejudice, a petitioner must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. See: Commonwealth v. Hickman, 799 A.2d 136 (Pa. Super. 2002).

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