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Proper procedure for Ineffective Assistance of counsel
Anonymous3 views4 answers
Defendant has gone to trial, found guilty of murder, sentencing is in a couple of weeks, my questions is this: For ineffective assist. should that be part of the appeal as a post conviction relief, can defendant assert he was denied proper counsel based on attorney's incompentance during trial, giving examples of the incompentency without asserting ineffective asst of counsel ? As far as the appeal goes, from what I understand there is a time frame I am confused on that, he has not had sentencing yet,so is it 30 days from sentencing or 30 days from being found guilty ? I know 30 days from "final verdict" I am not sure what that is- "final verdict". also what about a motion for a new trial, how long does a person have to file that, again the 30 days I understand but 30 days from what ?
Alexander M. IvakhnenkoCriminal Defense AttorneyChicago, IL ·
You ask such difficult questions and assertions which cannot be even be answered fairly or accurately in one paragraph on . What you may do is to meet with another licensed criminal defense attorney to assess whether your case has valid concerns as you alleged so you could receive a clear understanding what you may do next.
No good attorney to my knowledge will opine on any mistakes by other professionals without learning the exact facts of that case.
You are asking about a very tricky subject, full of procedural minefields. The only easy part of your question is about the timing of a notice of appeal. The notice of appeal in Illinois must be filed within thirty days of final judgment. In a criminal case that is the imposition of sentence, not the return of a verdict by the jury and not an oral statement by the judge that "judgment is entered on the verdict." But the serious question of whether it is best to raise an ineffective assistance claim in a post-trial motion prior to sentencing, on direct appeal, or in a post-conviction petition is a judgment call, and perhaps a difficult one, that should be made by an attorney familiar with Illinois criminal practice at the trial, appeal and collateral levels.
The defendant can assert that he was denied effective assistance and if he does a court may appoint a new attorney to draft the post-trial motions, which need to be filed 30 days from the date of sentencing. Also, to be successful in an ineffective assistance claim the defendant would be required to show both that counsel's performance was deficient and that prejudice resulted from that deficiency, a very difficult burden to overcome.
You should consult with an attorney to answer your questions more fully.
