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Man gets new trial because of ineffective counsel

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Based on ineffective assistance of counsel, the Indiana Court of Appeals today reversed on direct appeal a man’s domestic battery conviction and remanded the case for a new trial.

In Marcus Lewis v. State of Indiana, No. 49A02-0909-CR-920, the appellate court noted a post-conviction hearing is “normally the preferred forum” for such a claim. However, it added that some claims, such as this one, can be evaluated on the trial record alone and resolved on direct appeal.

To establish ineffective assistance of counsel, one must show that the lawyer’s performance was deficient and that the deficient performance prejudiced the defense.

Lewis was charged with domestic battery and battery as Class A misdemeanors. Parties appeared in court July 31, 2009, before a senior judge for a bench trial, but Lewis said he wanted a jury trial and had requested one during his initial hearing. The senior judge reset the case for jury trial, and counsel filed a written request for the jury trial Aug. 4, 2009.

The sitting trial judge reversed the senior judge’s decision Aug. 5, reset the case for a bench trial, and denied Lewis’ request.

Lewis’ case was tried Aug. 28 before a commissioner, who found him guilty of domestic battery and battery but the battery conviction was vacated because of double jeopardy concerns.

Lewis claimed his counsel failed to timely file a written demand for a jury trial and therefore deprived him of that right under Article I, Section 13 of the Indiana Constitution. Indiana Criminal Rule 22 specifies that a defendant charged with a misdemeanor can demand a jury trial by filing a written demand not later than 10 days before his first scheduled trial date, unless the defendant has not had at least 15 days advance notice of his scheduled trial date and of the consequences of his failure to demand a trial.

Lewis did not have counsel at his June 2, 2009, initial hearing, during which the court appointed counsel to represent him. The court advised Lewis of his jury trial rights and the time limitation. The court’s chronological case summary shows Lewis’ expressed preference for a jury trial. One attorney represented him during his bond hearing June 5, but another attorney represented Lewis at the July 31 bench trial.

The state said Lewis’ claim must fail because, unlike Stevens v. State, 689 N.E.2d 487, 489 (Ind. Ct. App. 1997), there is no evidence that Lewis personally asked any of his attorneys for a jury trial until July 31.

“We conclude that this distinction is not significant because the [chronological case summary] in this case emphatically indicated Lewis’ wish to be tried by a jury. Thus, Lewis’ attorneys should have known of Lewis’ preference for a jury trial from reviewing the CCS and pursued the matter further before the scheduled bench trial,” wrote Senior Judge Betty Barteau.

The court wrote that like Stevens, the failure of the attorneys to file a written jury trial request on Lewis’ behalf cannot be considered a strategic choice. During the July 31 and Aug. 5 hearings, his attorneys argued “at length” that Lewis should be given a jury trial, and on Aug.4, Lewis’ attorneys filed a belated motion for jury trial. Judge Barteau noted such a course is “inconsistent with a strategic determination to seek a bench trial.”

Despite the fact Lewis’ change of representation between hearings likely contributed to counsel’s error, the court concluded the attorneys’ failure to timely file a written request for a jury trial fell below the range of professionally competent representation.

When an attorney’s performance falls below the range of professionally competent representation and deprives a defendant of a fundamental right, such as the right to a jury trial, prejudice is presumed. See Stevens, 689 N.E.2d at 490.

Because Lewis was prejudiced by his attorneys’ error, he did not receive effective assistance of trial counsel with respect to his request for a jury trial.
 

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  1. Based on several recent Indy Star articles, I would agree that being a case worker would be really hard. You would see the worst of humanity on a daily basis; and when things go wrong guess who gets blamed??!! Not biological parent!! Best of luck to those who entered that line of work.

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  3. Don't believe me, listen to Pacino: https://www.youtube.com/watch?v=z6bC9w9cH-M

  4. Law school is social control the goal to produce a social product. As such it began after the Revolution and has nearly ruined us to this day: "“Scarcely any political question arises in the United States which is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings. As most public men [i.e., politicians] are, or have been, legal practitioners, they introduce the customs and technicalities of their profession into the management of public affairs. The jury extends this habitude to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate.” ? Alexis de Tocqueville, Democracy in America

  5. Attorney? Really? Or is it former attorney? Status with the Ind St Ct? Status with federal court, with SCOTUS? This is a legal newspaper, or should I look elsewhere?

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