To prevail on a claim of ineffective assistance of counsel, a defendant must show on the record (1) that his counsel’s actions fell below an objective standard of competence, and (2) that, but for counsel’s errors, the results of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); State v. McFarland, 127 Wn. 2d 322, 334-35, 899 P. 2d 1251 (1995). Counsel is strongly presumed competent, and an appellant “must show in the record the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel.” McFarland, 127 Wn. 2d at 335-36.
If counsel's decisions can be construed as legitimate trial tactics, counsel was competant and the defendant's claim fails. Examples of trial tactics include: what witnesses to call, whether and how vigorously to cross examine witnesses, whether to interview the state's witnesses or rely on police reports, what defenses if any to raise, and just about everything else.
Even if counsel was incompetant, the defendant has to show that competant representation would likely have resulted in a 'not guilty.' This is an extremely heavy burden to meet, as the appellate court will consider all the evidence, construe it in the light most favorable to the state, then decide if a jury would likely have changed its verdict.
You can't argue that witness X would have testified to certain things, unless the attorney summarized the witness's potential testimony on the record. You can't argue that the verdict might have been different; you have to show it would have. Speculation about what might have been is insufficient to support a claim of ineffective assistance.
If a defendant needs to argue ineffective assistance based on evidence outside the record, he has to submit a post-review petition, WITH SUPPORTING AFFIDAVITS and evidence, and make his arguments.
In neither a direct appeal nor a post-review petition can the defendant claim that his counsel was ineffective because he was found guilty.
As you may have guessed by now, 999 of 1000 claims of ineffective assistance of counsel fail. Claims that win are usually along the lines of failure to challenge a search that was so obviously illegal that no attorney should have missed it and no court would have allowed it, and the state could not (as a matter of law) prove its case without the search results. Another winning argument is if you can PROVE collusion between counsel and the state to obtain a conviction (yeah right! good luck on that!). Not speculate, not show that the attorneys play golf together. Proof sufficient to get at least one of them disbarred.
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This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.
