explaining that the prejudice prong for the waiver of issues category of an ineffective assistance of appellate counsel claim requires an examination of whether the issues that appellate counsel failed to raise would have been clearly more likely to result in Court of Appeals of Indiana | Memorandum Decision 32A01-1601-PC-220 | December 21, 2016 Page 15 of 16 reversal or an order for a new trial
How later courts described this case
- explaining that the prejudice prong for the waiver of issues category of an ineffective assistance of appellate counsel claim requires an examination of whether the issues that appellate counsel failed to raise would have been clearly more likely to result in Court of Appeals of Indiana | Memorandum Decision 32A01-1601-PC-220 | December 21, 2016 Page 15 of 16 reversal or an order for a new trial
- stating that to establish prejudice, the petitioner must show Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020 Page 26 of 31 that the omitted issues were clearly more likely to result in reversal
- providing that in order to prevail on a claim of ineffective assistance of trial counsel due to the failure to file a motion to dismiss, a petitioner must show a reasonable probability that the motion to dismiss would have been granted if made
- holding that appellate counsel cannot be held ineffective for failing to anticipate or effectuate a change in existing law
Written by the judges who cited it.
The opinion
MASSA, Justice,
concurring in result.
I agree that, for reasons clearly stated in Part III of the Court’s opinion, the postconviction court properly denied Garrett’s ineffectiveness claim; thus, I concur in result. I do not, however, share my colleagues’ belief that “there is a reasonable possibility that the evidentiary facts used by the jury in the first trial to establish the essential elements of Rape, for which Garrett was acquitted, may also have been used on retrial,” and therefore I cannot join the Court’s conclusion “that Garrett was twice prosecuted for the same offense in violation of Article 1, Section 14 of the Indiana Constitution.” Op. at 728.
As the Court notes, Garrett was retried to the bench, not to a jury. The record is clear that, in this second trial, the trial court, prosecution, and defense all understood that the two separate rapes were charged in chronological order and that Garrett was being retried for the alleged “Rape B” only. Op. at 722. This does not mean that the victim had to confíne her testimony in the second trial solely to Rape B, omitting all details of what transpired earlier in the evening; our jurisprudence does not require such a stilted, redacted and devoid-of-eontext presentation. (How, for instance, could she testify she was raped “again” without mentioning the first rape?) We trust trial judges to separate wheat from chaff, permitting them, for instance, to render a verdict even after being exposed to inadmissible evidence that would irreparably taint a lay jury. See Birdsong v. State, 685 N.E.2d 42, 47 (Ind.1997) (“when a trial is before a bench and not a jury, we generally presume that the trial judge considers only relevant and probative evidence in reaching its decision ... Unless the defendant presents evidence to the contrary, we presume no prejudice.” (citing Coleman v. State, 558 N.E.2d 1059, 1062 (Ind.1990))); see also Misenheimer v. State, 268 Ind. 274, 280 , 374 N.E.2d 523, 528 (1978) (“It can be presumed that a trial judge is not swayed by evidence which is considered prejudicial before a jury ... [and] that he disregarded inadmissible evidence.”).
I am confident that the experienced trial judge in this case performed just such a threshing here. Although the judge heard a fuller account of the victim’s terrible ordeal, I presume — as our precedent requires I presume, where, as here, there is no evidence to the contrary — that she deliberated only on the evidence supporting Rape B. Thus, the defendant was not “put in jeopardy twice for the same offense” as we have interpreted that language from our Indiana Constitution in Richardson and its evolving progeny.