When an individual is charged with a criminal offense in Nebraska there are two basic routes that the defendant may choose to take with the case. The first is to enter into a plea agreement with the State of Nebraska and the second is to require the State to prove the defendant guilty at trial. If you were convicted in a criminal trial and feel your attorney did not do an adequate job representing you at that trial you may now be wondering “If you were misrepresented in court can you appeal?” The answer is that you likely have the right to file an appeal; however, winning on appeal is an entirely different issue.
As a general rule, when a defendant enters into a plea agreement with the State, and pleads guilty, the defendant waives his/her rights to appeal the conviction. Taking a case to trial, however, preserves the right to a wide variety of potential appellate issues. One of those is “ineffective assistance of counsel.” Winning an appeal based on ineffective assistance of counsel, however, is not as easy as it may sound.
One of your many Constitutional rights is the right to counsel found in the 6th Amendment to the U.S. Constitution. The U.S. Supreme Court has also held that the right to counsel includes the right to effective assistance of counsel. In other words, a providing a defendant with an attorney does not satisfy his/her right to counsel. The attorney has to be effective in the assistance provided to the defendant or it is a violation of the defendant’s 6th Amendment right to counsel. Not surprisingly, claiming ineffective assistance of counsel is a common heabus corpus claim.
To win on a claim of ineffective assistance of counsel, however, you must prove two things:
1. that your trial lawyer’s performance fell below an “objective standard of reasonableness”
2. “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668 (1984)
In non-legal jargon, this means that you must prove that your attorney’s representation in your case was particularly bad and that the outcome of your case would have been different if your attorney would have done a better job. Because ineffective assistance of counsel claims are so common in appeals they are heavily scrutinized by appellate courts as a general rule. Proving that your attorney was intoxicated at trial, for instance, would likely qualify; however, simply showing that your attorney didn’t visit you in jail as often as you would have liked is not likely to qualify.
Because ineffective assistance of counsel claims are highly fact sensitive it is always best to consult with an experienced Nebraska criminal defense attorney to determine if your claim has merit on appeal. Contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case with an experienced criminal defense attorney.
Attorney Petersen was invited to join the National Advocacy for DUI Defense (NAFDD) organization in 2013. NAFDD vets thousands of lawyers and only chooses those who have achieved stellar results in DUI defense cases. Attorney Petersen was named one of the Top 50 defense attorneys in Nebraska out of more than 5,000.
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