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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. My husband financed a car through Wells Fargo In dec 2007 and in Jan 2012 they took him to court to garnish his wages through a company called autovest llc . Do u think the statue of limitations apply from the day last payment was received or from what should have been the completion of the loan

  2. Andrew, you are a whistleblower against an ideologically corrupt system that is also an old boys network ... Including old gals .... You are a huge threat to them. Thieves, liars, miscreants they understand, identify with, coddle. But whistleblowers must go to the stake. Burn well my friend, burn brightly, tyger.

  3. VSB dismissed the reciprocal discipline based on what Indiana did to me. Here we have an attorney actually breaking ethical rules, dishonest behavior, and only getting a reprimand. I advocated that this supreme court stop discriminating against me and others based on disability, and I am SUSPENDED 180 days. Time to take out the checkbook and stop the arrogant cheating to hurt me and retaliate against my good faith efforts to stop the discrimination of this Court. www.andrewstraw.org www.andrewstraw.net

  4. http://www.andrewstraw.org http://www.andrewstraw.net If another state believes by "Clear and convincing evidence" standard that Indiana's discipline was not valid and dismissed it, it is time for Curtis Hill to advise his clients to get out the checkbook. Discrimination time is over.

  5. Congrats Andrew, your street cred just shot up. As for me ... I am now an administrative law judge in Kansas, commissioned by the Governor to enforce due process rights against overreaching government agents. That after being banished for life from the Indiana bar for attempting to do the same as a mere whistleblowing bar applicant. The myth of one lowly peasant with the constitution does not play well in the Hoosier state. As for what our experiences have in common, I have good reason to believe that the same ADA Coordinator who took you out was working my file since 2007, when the former chief justice hired the same, likely to "take out the politically incorrect trash" like me. My own dealings with that powerful bureaucrat and some rather astounding actions .. actions that would make most state courts blush ... actions blessed in full by the Ind.S.Ct ... here: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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