Many aggrieved individuals call LEWIS & DICKSTEIN, P.L.L.C. to inquire appealing their felony or misdemeanor convictions. Although we handle appeals throughout the State of Michigan, many of these inquiries involve a complaint made against a Criminal Defense Attorney and relate to a conviction or sentencing issue in Oakland County, Wayne County, Macomb County, Washtenaw County or Livingston County.
A frequent claim is that the criminal attorney handling the trial was not “effective” or was in some way inadequate. Some of these issues involve a person who feels the trial lawyer was not aggressive enough or as experienced as they believed at the initial consultation. Many, but not all, of these complants are not sustainable. When there is a genuine issue of a criminal attorney’s competence or effectiveness at trial, the appellate courts in Michigan follow a strict test in criminal cases. Any claim of ineffective assistance of counsel is based upon various constitutional rights.
The Sixth Amendment, as applied to states by the Fourteenth Amendment, guarantees that the accused in a criminal prosecution “shall enjoy the right . . . to have the Assistance of Counsel for his defense.” US Const, Am VI; People v Russell, 471 Mich 182, 187; 684 NW2d 745 (2004). This right to counsel “extends to all ‘critical’ stages of the proceedings where counsel’s absence might harm defendant’s right to a fair trial.” People v Burhans, 166 Mich App 758, 764; 421 NW2d 285 (1988), citing United States v Wade, 388 US 218, 228; 87 S Ct 1926; 18 L Ed 2d 1149 (1967). “The right to counsel attaches and represents a critical stage ‘only at or after the initiation of adversary judicial proceedings against the accused by way of a formal charge, preliminary hearing, indictment, information or arraignment.’” People v Anderson, 446 Mich 392, 402; 521 NW2d 538 (1994). “It is well established that a total or complete deprivation of the right to counsel at a critical stage of a criminal proceeding is a structural error requiring automatic reversal.” People v Willing, 267 Mich App 208, 224; 704 NW2d 472 (2005).
To achieve a reversal of a criminal conviction based upon a claim of ineffective assistance of counsel, a defendant must meet the two-part test stated by the United States Supreme Court in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). People v Carbin, 463 Mich 590, 599–600; 623 NW2d 884 (2001).
First, the defendant must show that his counsel’s performance was so deficient “that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 US at 687. To do so, a defendant must show that his counsel’s performance “fell below an objective standard of reasonableness” under prevailing professional norms. Id. at 687- 688. A Michigan appellate court will presume that counsel rendered adequate assistance. Id. at 690.
Second, defendant must show that his counsel’s deficient performance prejudiced his defense. Id. at 687. Prejudice in the context of a criminal appeal means that a “defendant must show that there is a reasonable probability that, but-for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
As you can see, the burden to win a reversal based upon ineffective assistance of counsel is quite high. The courts will give great deference to a criminal trial lawyer’s “strategy” at trial. Despite the difficulties in winning an appeal relative to this type of claim, some cases are revered on appeal based upon claims of ineffective assistance of counsel. A very experienced, aggressive appellate lawyer with many years of experience handling criminal defense cases would maximize a person’s chances of being victorious on appeal.
Cases where there are frequent claims of ineffective assistance of counsel based upon trial errors and sentencing issues (too much jail, probation or prison for example) include: domestic violence, drug charges (marijuana and cocaine frequently), assault cases, weapons charges, minor in possession of alcohol (MIP), retail fraud (shoplifting), probation violation, financial crimes (fraud and embezzlement) and larceny (from a person or in a building).
If you have any questions about a criminal law matter or a potential appeal, please call LEWIS & DICKSTEIN, P.L.L.C. for a free consultation at (248) 263-6800 or complete a Request for Assistance Form and an experienced Michigan Criminal Defense Attorney will promptly contact you.