Friend of the Indiana appellate and post-conviction advocate

Raising Ineffective Assistance of Counsel on Direct Appeal

Last week I presented at a CLE on petitions for post-conviction relief and was asked this question: should I raise ineffective assistance of trial counsel on direct appeal? This is probably the most frequently asked question I receive from attorneys, and this is the issue that clients most wish I would raise on direct appeal.

In a nutshell, it is almost NEVER a good idea to raise ineffectiveness (“IAC”) claims on direct appeal. Why? Because once an issue is raised on direct appeal, it is not available to be raised later in post-conviction. IAC claims are best left for post-conviction. During the direct appeal process, the attorney is only able to use facts contained in the record; the record cannot be supplemented with additional evidence. This makes direct appeals an unfavored mechanism for raising IAC claims, because usually IAC claims require additional evidence to support the claim.

For example, let’s say trial counsel missed a key objection during trial. Appellate counsel cannot raise the issue as a freestanding claim, because it is waived. But raising it as an IAC claim is equally problematic. On appeal, the Court will consider whether there was any possible strategic reason for the attorney allowing the evidence in. If the Court can find one, the claim is meritless. But more importantly, raising an IAC claim in this instance would foreclose the defendant from raising IAC claims for any of the other mistakes trial counsel may have made that are not evident from the record on appeal. Finally, the fundamental error doctrine can be utilized to raise the missed objection claim without sacrificing the client’s IAC opportunity later. The appellate court’s consideration of an issue under the fundamental error doctrine does not foreclose the same issue being repackaged and considered later as an IAC claim.

But there are some occasions when raising an IAC claim on direct appeal is not the worst idea ever. If your client is appealing from a misdemeanor conviction that is not part of a progressive penalty scheme, then an IAC claim is not as disfavored. Or if you are appealing from a delinquency adjudication, more often than not the appeal will be the only real opportunity a child will have to raise the claim. But the law on IAC claims in juvenile cases is still in flux in terms of what standard is to be used, so the matter is tricky.

If you have any questions about raising IAC claims on direct appeal, feel free to contact me. There is a rarely used and somewhat complicated process you can employ if you are direct appeal counsel and believe an IAC claim is your only hope. I’ll address it in a future post and link it back here.

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