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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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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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