Ineffective Assistance – Failure to Appeal
Facts: After two successful sentencing appeals resulted in a third sentence, the Defendant’s attorney did not file an appeal of that sentence. On post-conviction, the attorney stated that he recalled advising Defendant that a third appeal would be futile and that Defendant “pretty much agreed” and did not insist on another appeal. The Defendant testified that he never talked to his attorney after the second appeal and denied discussing the futility of a third appeal. The attorney never waived appeal pursuant to Rule 37(d). The post-conviction court denied the petition for relief.
Appellate Decision: The intermediate court affirmed the denial of post-conviction relief, relying on the trial court’s factual findings that the Defendant and his attorney discussed and decided against a third appeal.
Issue: Was the Defendant’s attorney ineffective in failing to file an appeal of the Defendant’s re-sentencing?
Review Granted: September 10, 2013.
Prediction: Ben thinks the Supreme Court will reverse. The intermediate court wrote that the trial court made a finding that the Defendant decided against an appeal, but the testimony cited in the decision’s fact section suggests that, even based on the attorney’s testimony, the Defendant was far from unequivocal about waiving his appellate rights. The lack of a Rule 37(d) waiver, though not itself a constitutional violation, would appear to give the Defendant the benefit of the doubt.