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COA upholds denial of post-conviction relief

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The Indiana Court of Appeals agreed with the post-conviction court that a defendant didn’t receive ineffective assistance of trial counsel, finding the man had no right to the effective assistance of counsel at the time he gave a statement to police in front of the attorney.

James Oberst was charged with two counts of sexual misconduct with a minor in 1998 and later convicted. The Court of Appeals reversed one of his convictions and ordered he be re-sentenced. In 2008, Oberst filed a petition for post-conviction relief, claiming his trial counsel was ineffective on several grounds.

 When Oberst gave his statement to the police detective in December 1998, he hadn’t been charged yet with a crime. Oberst’s attorney on an unrelated criminal matter happened to be at the sheriff’s department on the day he went in to speak with the detective, and the attorney agreed to help Oberst in the instant matter. Oberst signed a waiver of rights and admitted to having sex with the victim. His attorney in the unrelated matter was later appointed to defend him in the sexual misconduct case.

In James K. Oberst v. State of Indiana, No. 14A05-1003-PC-157, Oberst argued that his attorney should have somehow stopped him from confessing during the interview. But the Sixth Amendment right to counsel is activated at the initiation of adversary criminal proceedings, noted Judge Nancy Vaidik.

“And because Oberst did not have the Sixth Amendment right to counsel during the December 2 interview, it does not matter what trial counsel did or did not do during that interview. In other words, Oberst did not have the right to effective representation during that interview,” she wrote.

The judges also rejected Oberst’s arguments that his trial counsel was ineffective by not conducting an adequate pretrial investigation. Oberst couldn’t establish ineffective assistance on this issue or on his claims of trial ineffectiveness. Oberst argued the trial counsel should have withdrawn as his counsel at the beginning of the trial when Oberst indicated he wanted to fire the attorney for failing to file a notice of alibi. But the trial court resolved the matter by allowing the alibi witness, so he had no reason to fire his trial counsel, wrote the judge.

As with his other arguments, the appellate judges found Oberst didn’t provide sufficient evidence to support his ineffective assistance claim.

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  1. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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