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. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues