These excerpts are taken from an Indiana Supreme Court decision in Woods v. Indiana to help our readers gain an understanding of the complexities of this particular appellate issue.
The debate is not over whether defendants have a Constitutional right to effective assistance of counsel, or that some defendants have a legitimate gripe that their attorneys did not adequately represent them. Rather, the debate is over when the claim needs to be filed -- on direct appeal or on post-conviction review.
The Indiana Supreme Court admitted its own ambivalence on this issue:
In sum, the availability of ineffective assistance of trial counsel in postconviction proceedings where it was not asserted on direct appeal is unresolved as a matter of this Court's precedent.
The purpose of Post-Conviction Review
Postconviction review supplements direct review by allowing the petitioner “to raise issues not known at the time of the original trial and appeal or for some reason not available to the defendant at that time.” . . . a single matter knowable from the trial record is waived if not presented on direct appeal.
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Most recent Court of Appeals cases have held that ineffective assistance of trial counsel is generally known and available on direct appeal so long as the defendant is represented by different counsel on appeal.
Issues supporting an ineffectiveness claim can be separated into three broad categories.
1. Record errors
Some can be evaluated on the face of the trial record (“record errors”). Examples are failure to tender or object to an instruction or failure to object to inadmissible evidence where the failure is outside the range of reasonable professional judgment and its prejudicial effect is clear. In those situations, there may be no need for delay or the taking of extrinsic evidence on the competence prong of Strickland because the claim may be resolved from the face of the trial record. If so, the interest of prompt resolution of the matter favors permitting it to be raised on direct appeal. For example, in Pemberton v. State, 560 N.E.2d 524 (Ind. 1990), trial counsel aggressively litigated a motion to suppress that challenged the admissibility of a suggestive “show-up” identification, but inexplicably failed to object at trial to preserve the issue for appeal. In holding that this amounted to deficient performance, this Court reasoned that “[t]here is no conceivable rational basis upon which to predicate a decision not to object. This can in no way be characterized as a strategical or tactical decision gone awry.”
2. Extra-record errors
Issues that are not visible at all on the trial record, or that require additional record development to assess either the competence of the attorney or the prejudice resulting from the claimed error. These contentions may require an investigation of facts far beyond the record, and sometimes beyond the knowledge of either trial or appellate counsel, to establish substandard counsel performance (“extra-record errors”). Typical examples may be failure to pursue a factual defense of alibi or insanity or, as in this case, an undisclosed conflict of interest.
Other examples:
Hollonquest v. State, 432 N.E.2d 37 (Ind. 1982) and Williams v. State, 464 N.E.2d 893 (Ind. 1984) both involved an ineffective assistance claim based on trial counsel's failure to call an alibi witness. Like most failures to investigate, establishing this ground for ineffective assistance would require going beyond the trial record to show what the investigation, if undertaken, would have produced. This is necessary because success on the prejudice prong of an ineffectiveness claim requires a showing of a reasonable probability of affecting the result.
The need for an evidentiary hearing:
For example, Hough v. State, 690 N.E.2d 267 (Ind. 1997), petition for cert. filed, __ U.S.L.W. ____ (U.S. July 23, 1998) (No. 98-5826), recently observed that a grant of summary judgment on the issue of trial counsel's effectiveness without an evidentiary hearing is “a bit unusual” because “[t]ypically . . . an ineffective assistance of counsel claim revolves around the unique facts of that case and many of those facts may exist outside of the record.” Id. at 273.
3. Hybrid errors
Finally, much confusion is generated by issues that are based on an action taken on the record, but whose evaluation requires a showing to rebut the presumption of counsel competence. An example of such a “hybrid” contention is an act or omission on the record that is perhaps within the range of acceptable tactical choices counsel might have made, but in the particular instance is claimed to be made due to unacceptable ignorance of the law or some other egregious failure rising to the level of deficient attorney performance.
The requirement of a showing of the allegedly unacceptable basis for the error derives from the presumption of attorney competence. Because we assume competence, if an action or omission is in the range of reasonable attorney behavior, it can support a claim of ineffective assistance only if that presumption is overcome by specific evidence as to the performance of the particular lawyer. Where no evidence of deficient representation is presented, therefore, the claim fails. The reasoning of trial counsel is sometimes apparent from the trial record. However, in assessing hybrid contentions it is often necessary for an additional record to be developed to show the reason for an act or omission that appears in the trial record.
The Indiana Supreme Court identified the different attitudes toward the problem of when ineffective counsel issues must be raised.
A. Use it or lose it
... the issue of trial counsel's effectiveness is known on direct appeal and therefore waived if not presented.
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This view would not differentiate at all among the various types of contentions that may support a claim of ineffective assistance of counsel. There appear to be only a few states and no federal circuits adhering to that approach, cf. note 15 infra, and with good reason. As tribunals of last (or at least not first) resort, appellate courts review the work of other courts as reflected in the record. We agree with the Tenth Circuit that in the context of assessing ineffectiveness claims, typically a “factual record must be developed in and addressed by the [trial] court in the first instance for effective review.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc) (footnote omitted). Where the record is incomplete, the reviewing court is poorly positioned to address the merits; nor does it have any reasonable ability to engage in factfinding or take new evidence. [This] approach might be more palatable if ineffective assistance were commonly easily resolved based on the trial record, but as already noted it often is not. Nor would a blanket ban on raising ineffective assistance of counsel in postconviction proceedings be fair to the defendant. Because of the presumption of competence, extrinsic evidence is needed in many cases.
B. Defer all or only some claims
Some courts resolve these varying considerations by holding that a claim of ineffective assistance of trial counsel is waived if withheld until the collateral stage unless the petitioner has a “valid reason” for the postponement. Under this view, good cause for waiting can be shown by any one of either (1) trial counsel was also appellate counsel; (2) the claim could not be developed without new facts; or (3) at the time of the direct appeal, it reasonably appeared that new evidence would be needed, even though it has since become clear that the trial record was adequate grounds for judging the merits of the claim. Guinan, 6 F.3d at 472.
C. All or nothing
As already noted, some grounds supporting an assertion of inadequate representation will not be reasonably knowable, much less fully factually developed, until after direct appeal. For the reasons given, the doors of postconviction must be open to adjudicate ineffective assistance if it is not raised on direct appeal. The defendant must decide the forum for adjudication of the issue -- direct appeal or collateral review. The specific contentions supporting the claim, however, may not be divided between the two proceedings. The administrative disadvantages to an approach that would require the defendant essentially to split an ineffectiveness claim between record-based and other contentions also apply to voluntary bifurcation. We note again that we recently held that ineffective assistance of trial counsel is not available in postconviction if the direct appeal raises any claim of deprivation of Sixth Amendment right to counsel.
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