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Inability To Satisfy Plain-Error Test Doesn’t Shut Down Ineffective Assistance Claim

Posted on Wednesday, December 26, 2018

A criminal defendant’s failure to satisfy the plain-error test regarding a trial court’s alleged error does not, by itself, prohibit the defendant from bringing an ineffective assistance of counsel claim related to that same error, according to the Michigan Supreme Court.

Instead, courts must independently analyze each ineffective assistance claim, the Supreme Court ruled in People v Randolph (Docket No. 153309).

“[W]e hold that a defendant’s inability to satisfy the plain-error standard in connection with a specific trial court error does not necessarily mean that he or she cannot meet the ineffective assistance standard regarding counsel’s alleged deficient performance relating to that same error,” Justice David Viviano wrote for the unanimous Supreme Court. “Courts must independently analyze each claim, even if the subject of a defendant’s claim relates to the same error.”

Here, the Michigan Court of Appeals failed to apply the standards set forth in Strickland v Washington, 466 US 668 (1984), to defendant’s ineffective assistance claims, the Supreme Court said. As a result, the Supreme Court reversed the Court of Appeals findings as to the defendant’s ineffective assistance claims and remanded the case to review those claims under Strickland and in light of the trial record and the record produced at the hearing held pursuant to People v Ginther, 390 Mich 436 (1973) (commonly known as a Ginther hearing).

Justice Elizabeth Clement did not participate in the case.

Ineffective Assistance Claims

The defendant was charged with second-degree murder and various felony-firearm offenses. At trial, the prosecutor relied on testimony about alleged threats the defendant had made to the victim’s family, as well as evidence of the ammunition and gun found during the investigation. Regarding the threats, testimony was presented indicating the defendant had been calling and threatening to kill members of the victim’s family. Defense counsel did not object to this testimony during trial and did not object to the admission of the ammunition and gun as evidence. The defendant was found guilty.

The defendant appealed, maintaining that trial counsel was constitutionally ineffective under the Sixth Amendment. The Court of Appeals ordered the case remanded to the trial court for a Ginther hearing. At that hearing, trial counsel acknowledged that he did not have a strategic reason for not filing a motion to suppress the ammunition that was found. However, the trial court ultimately rejected the defendant’s ineffective assistance claim, finding that trial counsel’s performance was sufficient and that, in the alternative, the defendant was not prejudiced.

The defendant again appealed. The Court of Appeals affirmed in an unpublished opinion. According to the panel, the defendant could not establish an ineffective assistance of counsel claim because he did not establish that plain error had occurred.

The defendant appealed to the Supreme Court.

Plain-Error Standard

In its opinion, the Supreme Court examined whether the defendant’s inability to satisfy the plain-error test precluded him from bringing an ineffective assistance claim, particularly when his allegations related to the same alleged trial court error.

Citing Strickland, the Supreme Court noted that in order to establish an ineffective assistance claim, a defendant must show that trial counsel’s performance was objectively deficient and that these deficiencies prejudiced the defendant.

The justices further pointed out the plain-error test involves the following analysis: 1) the error must have occurred; 2) the error was plain – that is, clear or obvious; and 3) the error affected substantial rights – that is, it affected the outcome of the lower court proceedings. Once these three elements are satisfied, an appellate court must use discretion and decide whether to reverse.

According to the Supreme Court, when evaluating a trial court’s alleged error, an appellate court makes a determination – but the determination is different when evaluating trial counsel’s alleged deficient performance. “The tests for each determination reflect their differences,” the justices said.

The first two prongs of the plain-error test require that an error exist and that it be obvious, the Supreme Court said, noting that neither of these factors alone satisfies Strickland. “A trial court’s error does not tell us (1) whether counsel performed deficiently with respect to that trial court error or (2) if counsel’s performance was deficient, whether it prejudiced the defendant.

The obviousness of the error, the second plain-error test element, is no different. While in some instances an obvious error may correlate with counsel’s ineffectiveness in responding to it and the prejudice resulting from that failure, in others instances it will not.”

Each standard does require a showing of prejudice, the Supreme Court emphasized. “But even here, a finding that a defendant failed to satisfy the prejudice prong when complaining about an error by the court will not necessarily mean that the defendant is unable to prevail on an ineffective assistance claim relating to the same underlying issue. An appellate court need not look beyond the trial court record when reviewing a trial court’s mistake for plain error; an ‘appellate court can find and correct the error without any entanglement in contested or unknown facts ….’ That is the nature of plain-error review.”

On the other hand, alleged errors underlying an ineffective assistance claim often are not apparent from the trial record and, instead, require additional evidentiary development, the Supreme Court observed. “This is because ineffective assistance claims center on deficiencies in the defense counsel’s decision-making, which will not always reveal themselves in the official record.”

The Supreme Court noted that these findings did not change the “fundamental nature” of the analyses for plain error and ineffective assistance. “Rather, we merely seek to emphasize that courts should address ineffective assistance claims based on the pertinent inquiry – the effect of counsel’s deficient performance – considering the pertinent facts, which may include facts developed at an evidentiary hearing.”

Applying The Test

Next, the Supreme Court applied the plain-error test to the matter at hand. “[W]e conclude that the Court of Appeals impermissibly conflated the plain-error and ineffective-assistance standards at least twice,” the justices wrote.

The Court of Appeals’ first reason for rejecting the defendant’s claim – that the error was not obvious – did not justify rejecting the defendant’s ineffective assistance claim, the Supreme Court said. “Once again, defense counsel’s own deficient performance might have cloaked the obviousness of an error (and in fact the panel’s reasoning suggests that it might well have), but that failure cannot then preclude an ineffective assistance claim. The questions the Court needed to answer were whether counsel’s failure to object was deficient performance and whether it prejudiced defendant.”

Meanwhile, the Supreme Court also denounced the Court of Appeals’ second reason for rejecting the defendant’s plain-error claim: the defendant did not establish plain error because he could not show the admission of certain statements prejudiced him. “But the Court could reach this conclusion only after properly applying Strickland, which requires considerations of defense counsel’s actions and their effect in light of all of the evidence relating to that claim, including that developed at any evidentiary hearing. That proper application is not evident in the Court’s opinion. The Court parsed the testimony and the claims of error relating to it.”

Based on the foregoing, the Supreme Court held these errors were sufficient to require a remand, so the Court of Appeals could apply the appropriate framework to the defendant’s claims. “On remand, the Court of Appeals shall closely reassess all of defendant’s ineffective assistance arguments under the Strickland standard, taking into account the record evidence relevant to that standard.”

The Supreme Court summed up its conclusion as follows: “We hold that a defendant’s inability to satisfy the plain-error standard in connection with a specific trial court error does not necessarily mean that he or she cannot meet the ineffective assistance standard regarding counsel’s alleged deficient performance relating to that same error. Courts must independently analyze each claim, even if the subject of a defendant’s claim relates to the same error.”

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