Tuesday, February 27, 2007
Ind. Decisions - Supreme court issues reversal based on ineffective counsel
In Harris v. State, a 9-page, 5-0 opinion, Justice Boehm writes:
We hold that appellate counsel is ineffective if counsel fails to provide the trial record establishing facts that support a valid claim raised in the appeal but unsupported by the record provided. * * *
The trial transcript showed that “Harris and his friend were able to get the girls consent to their sexual advances because the girls wanted a place to stay for the night.” Testimony from B showed that during this chain of events and “about five minutes” after Harris had sex with A, the foursome “switched” and Harris took B back to his room where the two had sex in the same bed which the four had just used. This testimony, available only in the transcript, should have caused the Court of Appeals to hold that Harris’s crimes were a single criminal episode. The Court of Appeals observed that it was “hampered” by lack of the record and that its decision was made “on the basis of the record before” them. There is a reasonable probability that the record would have caused either the Court of Appeals or this Court to rule that the record established a single episode. In light of this record we so hold today. Accordingly, Harris’s appellate counsel was ineffective.
Conclusion Transfer is granted and the judgment of the post-conviction court is reversed. Harris’s sentence is revised to thirty years, which is the maximum permitted by Indiana statute at the time for these two crimes committed in the course of a single episode.
Posted by Marcia Oddi on February 27, 2007 04:22 PM
Posted to Ind. Sup.Ct. Decisions