THE 6th AMENDMENT RIGHT TO COUNSEL IN CRIMINAL CASES
Many people who have been convicted of a crime in Pennsylvania often have questions about whether their lawyer made a mistake or was ineffective. So called “ineffective assistance of counsel” claims are one of the most common claims made in Post-Conviction Relief Act (PCRA) petitions in Pennsylvania.
What is an ineffective assistance of counsel claim?
Throughout the course of a criminal case, there may be multiple lawyers involved in the case. From trial counsel to counsel who handled an appeal or a PCRA petition, an ineffective assistance of counsel claim may be made against any lawyer who handled any part of the case.
Ineffective assistance of counsel is defined by Section 9543(a)(2)(ii) of the Post Conviction Relief Act:
“Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.”
Ineffective assistance of counsel claims vary in nature and scope. Below are some examples of conduct which is generally deemed ineffective:
- failing to present mitigating evidence at sentencing (failing to present evidence of mental illness);
- failing to advise a defendant of the right to appeal (advising a defendant’s parent of the right to appeal, but not the defendant);
- failing to protect a defendant’s right to appeal/failing to file an appeal (failing to file the appeal on time).
When is an ineffective assistance of counsel claim successful?
Under Pennsylvania criminal appeals law, ineffective assistance of counsel claims are successful when the following 3 factors can be proved:
- the underlying legal claim has arguable merit;
- counsel’s course of conduct lacked any reasonable basis designed to serve his client’s interest; and
- there is a reasonable probability that the outcome of the proceedings would have been different had counsel not been ineffective, i.e., that the petitioner was prejudiced by counsel’s act or failure to act.
How do I make a claim of ineffective assistance (IAC) of counsel?
Pennsylvania law with respect to ineffective assistance counsel claims has a complex history.
Prior to 2002, claims of ineffectiveness had to be raised at the time a defendant obtained new counsel, i.e., after new counsel was hired or appointed. However, that doctrine, known as the Hubbard rule, proved unworkable since most ineffective assistance of counsel claims are complex and require at least some fact finding; hence, the PA Supreme Court’s reversal of this doctrine in a 2002 case, Commonwealth v. Grant.
In 2002, the Grant court held that IAC claims were more appropriate for PCRA petitions because IAC claims usually require some fact-finding, and on direct appeal, appellate courts cannot engage in any fact-finding. In some cases however, IAC claims may have been made on direct appeal, depending on the circumstances. If for instance, the conduct or omission was clear on the record, the matter could have been raised in a direct appeal.
In July 2011, the Pennsylvania Superior Court in Commonwealth v. Barnett changed how IAC claims are raised. IAC claims must now be raised in a PCRA petition and cannot be raised on appeal, unless a defendant has waived the right to pursue PCRA claims.
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