Can I raise ineffective assistance of counsel following my stipulated vp bench trial?

[rubbermaid]

What is the name of your state (only U.S. law)? In Illinois criminal court.

I waived my right to a jury trial and am going with a stipulated bench trial because the facts are uncontested and it is only a question of whether I meet the legal definition of the offense. My attorney suggested going this way becuse it is a matter of law and he thinks the judge will decide it favorably. Now I know trial strategy is considered the perogative of the attorney, but if I lose, can I still present a motion of ineffective counsel pro se after trial and request a "Krankel" hearing with this stipulated bench trial?

I read decisions both ways: some saying dont't raise ineffective assistance of counsel in direct appeal; instead wait till post-conviction petition. Other appellate decisions however show ineffective assistance of counsel being raised immediately post-trial via a Krankel hearing and on direct appeal. Which is it, and will a stipulated bench trial wive my right to do either? All suggestions and advice appreciated!

 

[Just Blue]

Px Hx**************.....

 

[quincy]

What is the name of your state (only U.S. law)? In Illinois criminal court.

I waived my right to a jury trial and am going with a stipulated bench trial because the facts are uncontested and it is only a question of whether I meet the legal definition of the offense. My attorney suggested going this way becuse it is a matter of law and he thinks the judge will decide it favorably. Now I know trial strategy is considered the perogative of the attorney, but if I lose, can I still present a motion of ineffective counsel pro se after trial and request a "Krankel" hearing with this stipulated bench trial?

I read decisions both ways: some saying dont't raise ineffective assistance of counsel in direct appeal; instead wait till post-conviction petition. Other appellate decisions however show ineffective assistance of counsel being raised immediately post-trial via a Krankel hearing and on direct appeal. Which is it, and will a stipulated bench trial wive my right to do either? All suggestions and advice appreciated!

The trial strategy of the attorney does not on its own amount to ineffective assistance of counsel.

In order to file a pro se post-trial motion alleging ineffective counsel, you would need to show that the attorney was incompetent in the performance of his duties and this incompetence produced a substantial prejudice without which the outcome of the trial would have been different.

If there are no facts that are contested, it seems difficult to imagine any attorney ineffectively handling a bench trial where the court's decision is a matter of law.


edit to add: I just read your other thread, rubbermaid. You were charged with murder and you say here you have waived your right to a jury trial? https://forum.freeadvice.com/arrests-searches-warrants-procedure-26/need-know-when-i-should-step-ask-present-my-own-motion-argument-611109.html

 

[rubbermaid]

Reply to Quincy

The trial strategy of the attorney does not on its own amount to ineffective assistance of counsel.

In order to file a pro se post-trial motion alleging ineffective counsel, you would need to show that the attorney was incompetent in the performance of his duties and this incompetence produced a substantial prejudice without which the outcome of the trial would have been different.

If there are no facts that are contested, it seems difficult to imagine any attorney ineffectively handling a bench trial where the court's decision is a matter of law.


edit to add: I just read your other thread, rubbermaid. You were charged with murder and you say here you have waived your right to a jury trial? https://forum.freeadvice.com/arrests-searches-warrants-procedure-26/need-know-when-i-should-step-ask-present-my-own-motion-argument-611109.html

Quincy,

Sorry to appear disingenuous; there are two people stuck in this morass using one account here. The first post was for my friend who is stuck in jail minus bond. He threw everything at the conflict motion and made a great record pro se on it, but his PD refused to directly acknowledge personal conflict to the court (although he acknowledged it indirectly) and the judge refused to remove the PD from the case. Now my friend is seeking a pro bono rep as his only hope for impartial and competent representation.

I am a companion case, charged with Obstruction (which is a BS charge as most knowledgeable attorneys have told me) in hopes to get my friend to plead. My ineffective claim applies not to the stipulated bench, but to prior events in representation. I was convicted by jury because (despite my telling the attorney I did not want to be my only witness) he called no other witnesses (who were out in the hall) to collaborate me. The factual issue was solely where my friend lived at the time. I had concrete evidence (bills, including utilities, for my friend's accounts) showing his address & witnesses who visited him at his apt. My attorney decided this was all irrelevant because my actions when arrested (which were very polite and orderly) did not impede the police IN ANY RESPECT, so therefore, I do not meet the legal definition of obstruction. I SHOULD HAVE WON THAT JURY; even the judge winced when it found me guilty. SECOND, the judge subsequently granted me a retrial. My attorney remains adamant that this same judge (who dismissed only one of the two identical charges against me at jury on directed verdict) will now acquit me when presented only with a transcript of the prior jury trial as basis. (Stipulation being NO new evidence by state or defense). I think if I lose here I have reasonable basis to claim ineffective amounting to neglect for blowing all of my opportunities by sole reliance on legal defense.

 

[Nellibelle]

Quincy,

Sorry to appear disingenuous; there are two people stuck in this morass using one account here. The first post was for my friend who is stuck in jail minus bond. He threw everything at the conflict motion and made a great record pro se on it, but his PD refused to directly acknowledge personal conflict to the court (although he acknowledged it indirectly) and the judge refused to remove the PD from the case. Now my friend is seeking a pro bono rep as his only hope for impartial and competent representation.

I am a companion case, charged with Obstruction (which is a BS charge as most knowledgeable attorneys have told me) in hopes to get my friend to plead. My ineffective claim applies not to the stipulated bench, but to prior events in representation. I was convicted by jury because (despite my telling the attorney I did not want to be my only witness) he called no other witnesses (who were out in the hall) to collaborate me. The factual issue was solely where my friend lived at the time. I had concrete evidence (bills, including utilities, for my friend's accounts) showing his address & witnesses who visited him at his apt. My attorney decided this was all irrelevant because my actions when arrested (which were very polite and orderly) did not impede the police IN ANY RESPECT, so therefore, I do not meet the legal definition of obstruction. I SHOULD HAVE WON THAT JURY; even the judge winced when it found me guilty. SECOND, the judge subsequently granted me a retrial. My attorney remains adamant that this same judge (who dismissed only one of the two identical charges against me at jury on directed verdict) will now acquit me when presented only with a transcript of the prior jury trial as basis. (Stipulation being NO new evidence by state or defense). I think if I lose here I have reasonable basis to claim ineffective amounting to neglect for blowing all of my opportunities by sole reliance on legal defense.

I greatly sympathize with you, Rubbermaid as I can relate to a dysfunctional Attorney who, for some reason, would not take advantage of witnesses (who were readily available ) to testify on your behalf. I thought it highly incompetent of my previous Attorney (Worker's Comp.) to decide not to take advantage of witnesses who were available in my case and I find it horrible that your Attorney would do the same thing. Good luck to you!

 

[quincy]

Quincy,

Sorry to appear disingenuous; there are two people stuck in this morass using one account here. The first post was for my friend who is stuck in jail minus bond. He threw everything at the conflict motion and made a great record pro se on it, but his PD refused to directly acknowledge personal conflict to the court (although he acknowledged it indirectly) and the judge refused to remove the PD from the case. Now my friend is seeking a pro bono rep as his only hope for impartial and competent representation.

I am a companion case, charged with Obstruction (which is a BS charge as most knowledgeable attorneys have told me) in hopes to get my friend to plead. My ineffective claim applies not to the stipulated bench, but to prior events in representation. I was convicted by jury because (despite my telling the attorney I did not want to be my only witness) he called no other witnesses (who were out in the hall) to collaborate me. The factual issue was solely where my friend lived at the time. I had concrete evidence (bills, including utilities, for my friend's accounts) showing his address & witnesses who visited him at his apt. My attorney decided this was all irrelevant because my actions when arrested (which were very polite and orderly) did not impede the police IN ANY RESPECT, so therefore, I do not meet the legal definition of obstruction. I SHOULD HAVE WON THAT JURY; even the judge winced when it found me guilty. SECOND, the judge subsequently granted me a retrial. My attorney remains adamant that this same judge (who dismissed only one of the two identical charges against me at jury on directed verdict) will now acquit me when presented only with a transcript of the prior jury trial as basis. (Stipulation being NO new evidence by state or defense). I think if I lose here I have reasonable basis to claim ineffective amounting to neglect for blowing all of my opportunities by sole reliance on legal defense.

It is difficult for the members of this forum when posters share user names, plus I believe sharing user names might be against the Terms of Service. But, what is done is done.

So, as I understand it, the jury found against you on the obstruction charge and you were granted a retrial. Your hope is that the judge at the bench trial will find for you based on the law which shows you were not guilty of obstruction as defined under this law. But, if you are again found guilty of obstruction, you want to appeal based on ineffective counsel?

If you looking at a direct appeal, any properly presented trial error can be raised as a basis for reversal, but the error must be apparent from the trial record. In addition, you must be able to show that the error affected the outcome. The direct appeal is an extension of your original trial.

A post-conviction hearing is a new action independent of the first and provides you the opportunity to develop claims outside the trial record. You would need to show that there was a substantial denial of your rights (failure to raise an issue of merit) that affected the outcome.

I am not seeing much that can be done for you in a forum setting - the options are what they are and what is best for you can depend on the outcome of the bench trial and will require an attorney's personal review of the records.

Good luck.





edit to add: There is NO indication from what has been presented that the attorney is "dysfunctional." There are many valid reasons for deciding not to have witnesses testify - and many times when attorneys have regretted their decisions to have witnesses testify. Facts matter.

 

[rubbermaid]

It is difficult for the members of this forum when posters share user names, plus I believe sharing user names might be against the Terms of Service. But, what is done is done.

So, as I understand it, the jury found against you on the obstruction charge and you were granted a retrial. Your hope is that the judge at the bench trial will find for you based on the law which shows you were not guilty of obstruction as defined under this law. But, if you are again found guilty of obstruction, you want to appeal based on ineffective counsel?

If you looking at a direct appeal, any properly presented trial error can be raised as a basis for reversal, but the error must be apparent from the trial record. In addition, you must be able to show that the error affected the outcome. The direct appeal is an extension of your original trial.

A post-conviction hearing is a new action independent of the first and provides you the opportunity to develop claims outside the trial record. You would need to show that there was a substantial denial of your rights (failure to raise an issue of merit) that affected the outcome.

I am not seeing much that can be done for you in a forum setting - the options are what they are and what is best for you can depend on the outcome of the bench trial and will require an attorney's personal review of the records.

Good luck.





edit to add: There is NO indication from what has been presented that the attorney is "dysfunctional." There are many valid reasons for deciding not to have witnesses testify - and many times when attorneys have regretted their decisions to have witnesses testify. Facts matter.

Quincy,

Thank you very much for the advice. I understand and see that if found guilty, I should go ahead an try for a Krankel hearing immediately post-trial, if only to get everything needed in the record to argue ineffectiveness in direct appeal as well as later in post-conviction.

 

[quincy]

Let's hope the judge finds there was no obstruction. Good luck.

 

[rubbermaid]

Free at last!

Let's hope the judge finds there was no obstruction. Good luck.

Final note: Pleased to let everyone know, I was acquitted today via the stipulated bench!

 

[quincy]

I am glad to hear that, rubbermaid.

It appears your attorney predicted the judge's decision correctly, which is nice. Trying to show ineffective assistance of counsel is not easy so it is good that you will not have to attempt that.

Thank you for the update.