Dec 122016

Most inmates in prison in Pennsylvania have heard about the phrase “ineffective assistance of counsel.” Whether it’s a sentence for murder, robbery or drug dealing, inmates who are facing lengthy prison terms have probably considered whether they can file a criminal appeal or a Post Conviction Relief Act Petition.

Ineffective Assistance of Counsel – Strickland v. Washington

The concept of “ineffective assistance of counsel” (IAC) originates from a 1984 United States Supreme Court case, Strickland v. Washington. There, the Court held that the Sixth Amendment to the Constitution affords a criminal defendant the right to a fair trial, which includes representation by a reasonably effective or competent attorney.

More: PA Post Conviction Relief Act Petition – How to Prove Ineffective Assistance of Counsel Claims

Therefore, a criminal defendant can seek legal recourse when their attorney’s performance is ineffective. However, the Strickland Court established a two part test for IAC claims. Under Strickland, a defendant must show the following:

  • The attorney’s representation fell below an objective standard of reasonableness.
  • The attorney’s representation shows a reasonable probability that if he or she had performed adequately, the result would have been different.

In other words, there are two critical questions which must be answered. First, were there mistakes? Second, even if there were mistakes, did they have any real effect on the result of the case?

Ineffectiveness of Counsel in Pennsylvania Criminal Cases

Pennsylvania law incorporates IAC in the Post Conviction Relief Act, Section 9543(a)(2)(ii) which states the grounds for filing a PCRA petition, including:

“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.”

Pennsylvania courts have routinely held that a defendant who files a PCRA petition on the basis of IAC must prove the following 3 elements:

  1. the claim of ineffectiveness of counsel has arguable merit;
  2. defense counsel’s act was not reasonably designed to advance the interest of the defendant; and
  3. the defendant was prejudiced by the defense counsel’s actions, i.e., but for his counsel’s actions, the result of the trial would have been different.

In a nutshell, the three part test under Pennsylvania (state) law is really just a regurgitation of the two part test under federal law as laid out in Strickland v. Washington. It boils down to whether the criminal attorney made mistakes and if so, whether those mistakes made a difference.

Being incompetent is not the be-all-end-all. Even if a criminal lawyer was intoxicated at trial or fell asleep during trial, there must still be evidence that the mistake actually made a difference in the outcome. If there’s substantial evidence of guilt, a PCRA claim based on IAC at trial is not likely to be successful.

Top Philadelphia Criminal PCRA and Appeals Lawyer

David Nenner is a “Top Rated Philadelphia Criminal Defense Lawyer” by Super Lawyers magazine and has been a criminal lawyer since 1985.  He has handled countless criminal defense cases, including PCRA petitions and direct appeals. Mr. Nenner offers FREE consultations. (215) 564-0644

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