The Law offices of Arnold & Smith - John Price Carr House
You cannot reason with the unreasonable;
When it is time to fight,
WE FIGHT TO WIN.

Our office continues to operate during our regular business hours, which are 8:30 am - 5:30 pm, Monday through Friday, but you can call the office 24 hours a day. We continue to follow all recommendations and requirements of the State of Emergency Stay at Home Order. Consultations are available via telephone or by video conference. The safety of our clients and employees is of the utmost importance and, therefore, in-person meetings are not available at this time except for emergencies or absolutely essential legal services.

Ineffective Assistance of Counsel Claims

Almost everyone knows that if you are accused of a crime in the United States, you have the right to an attorney. This is a federal constitutional right guaranteed by the Sixth Amendment. However, what happens when the attorney that you have was essentially in name only? What if they never investigated your case, did not present all of your available defenses to the court, and did not object to anything at trial, to the point that it irreparably prejudiced your defense?

There is a mechanism to remedy when this happens called the Ineffective Assistance of Counsel (IAC) claim. Our nation’s courts have interpreted the constitutional right to an attorney to include the right to effective assistance from your attorney, and an IAC claim, if granted, has the power to require that the individual with an ineffective attorney be given a new trial with a new attorney.

However, as with most measures that have the power to vacate a conviction, the standard for proving ineffective assistance of counsel is extremely high. An IAC claim is not something you file simply because you did not like your attorney. It is something you file because your attorney’s services fell short of what they were constitutionally required to.

Are There Different Types of IAC Claims?

Universally amongst the states, there are three (3) different bases for which a person can file a claim for ineffective assistance. A North Carolina Supreme Court decision from 1985 also sets out a fourth type of IAC claim that can be filed in this state.

  1. Attorney Error. Sometimes referred to as Strickland claims, attorney error claims are by far the most common type of IAC claim. Essentially this type of IAC claim alleges that the person’s attorney handled the case improperly. For example, the defendant may allege that their counsel failed to call a witness, object to evidence, or request a jury instruction.
    1. Standard: Strickland IAC claims have the highest burden of proof that a defendant must show to succeed on an IAC claim. The defendant must show that (1) their original counsel’s performance was deficient, and (2) this deficient performance prejudiced the defense, to the extent that there is a reasonable probability that the result of the proceeding—whether in the form of a guilty plea or conviction at trial—would have been different.
  2. Denial of Counsel. In this type of IAC claim, the defendant asserts that they were denied counsel at a critical stage of their criminal proceedings. This can manifest through either an actual denial of counsel, such as where the trial judge conducts jury selection without the accused’s defense counsel present, or a constructive denial of counsel. Constructive denial of counsel typically arises either in a situation where 1) no attorney could have provided effective assistance (for example, when counsel is appointed on the eve of trial to a complicated case involving multiple charges and witnesses), or 2) where counsel completely fails to subject the prosecution’s case to meaningful adversarial testing. For example, even if counsel were present in court, he or she presented no evidence and made no meaningful argument to the jury.
    1. Standard: To succeed on this type of IAC claim, a defendant only needs to show that the actual or substantive denial occurred. Once this is proven, prejudice to the defendant’s case is presumed to have occurred.
  3. Conflict of Interest. In this type of IAC claim, the defendant asserts that their attorney was impaired by competing loyalties. These claims arise most often in situations where an attorney represents multiple co-defendants whose defenses are at odds with each other. However, conflict IAC claims can also arise in other situations, such as when a defendant’s attorney is also retained to represent a person testifying as a witness for the state.
    1. Standard: The standard for analyzing a conflict of interest IAC claim depends on when the defendant raises it.
      1. Before or during trial: When defense counsel timely raises the fact that he or she has a conflict of interest before or during their client’s trial, the trial court must either take adequate steps to determine that the risk of conflict is too remote to justify new counsel, or appoint separate counsel. If the trial court fails to do either of these things, the defendant is entitled to a new trial without having to prove that their case was prejudiced by the conflict of interest.
      2. After trial: If the defense counsel did not object to conflict of interest before or during the trial, and the trial court had no reason to believe at the time that a conflict exists, the defendant must show that an actual conflict of interest did in fact adversely affect their attorney’s performance.
  4. Harbison. This is the special type of IAC claim that is uniquely available to North Carolina defendants, although the circumstances that warrant it are relatively rare. In the 1985 case State v. Harbison, the North Carolina Supreme Court held that it is per se ineffective assistance when counsel admits their client’s guilt to the jury without the client’s consent.
    1. Standard: If something is “per se” ineffective assistance, it means that it is intrinsically, in and of itself ineffective assistance. This is the lowest of all the burdens for the defendant to meet, and only requires a showing that there was an admission of guilt. This by itself can be difficult to prove, however.
      1. It is somewhat contested whether or not a Harbison IAC claim should be analyzed under the strict standard set by Strickland (#1a above) instead of the per se standard established by the North Carolina Supreme Court. However, a 2010 case from the North Carolina Court of Appeals held that the per se standard applies.

If you or a loved one has an ineffective assistance of counsel claim to pursue, please contact Arnold & Smith, PLLC today for a consultation with one of our experienced criminal defense attorneys. Our dedicated criminal attorneys handle a wide range of criminal issues for our clients in both state and federal courts, including expungements, ineffective assistance of counsel claims and habeas appeals.