ineffective assistance of counsel claim in Virginia

2023“To prevail on an ineffective assistance of counsel claim, the petition must satisfy both the ‘performance’ prong and the ‘prejudice’ prong of the Strickland test.” Zemene v. Clarke, 289 Va. 303 , 313 (2015) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

2015To prevail in an ineffective assistance of counsel claim, a petitioner must prove both “that counsel’s representation ‘fell below an objective standard of reasonableness’ ” and “that counsel’s deficient performance prejudiced the defendant.” Id. at 476-77 (2009) (quoting Strickland, 466 U.S. at 668,694 ).

2016While “it is the defendant who retains the ultimate authority to decide whether or not to testify[,]” United States v. McMeans, 927 F.2d 162, 163 (4th Cir. 1991) (citing Jones v. Barnes, 463 U.S. 745, 751 (1983)), “there is no affirmative duty on a [trial] court to obtain an on-the-record waiver of a defendant’s right to testify,” United States v. Mitchell, 584 Fed.

2016While “it is the defendant who retains the ultimate authority to decide whether or not to testify[,]” United States v. McMeans, 927 F.2d 162, 163 (4th Cir. 1991) (citing Jones v. Barnes, 463 U.S. 745, 751 (1983)), “there is no affirmative duty on a [trial] court to obtain an on-the-record waiver of a defendant’s right to testify,” United States v. Mitchell, 584 Fed.

2016See Walker v. Mitchell, 224 Va. 568, 570 , 299 S.E.2d 698, 699 (1983) (holding that an ineffective assistance of counsel claim is not “cognizable on direct appeal from a criminal conviction”). -3- additional testimony to offer.4 The trial court had no obligation to engage in a colloquy with the defendant regarding whether he was waiving that right.

2016See Walker v. Mitchell, 224 Va. 568, 570 , 299 S.E.2d 698, 699 (1983) (holding that an ineffective assistance of counsel claim is not “cognizable on direct appeal from a criminal conviction”). -3- additional testimony to offer.4 The trial court had no obligation to engage in a colloquy with the defendant regarding whether he was waiving that right.

2016While “it is the defendant who retains the ultimate authority to decide whether or not to testify[,]” United States v. McMeans, 927 F.2d 162, 163 (4th Cir. 1991) (citing Jones v. Barnes, 463 U.S. 745, 751 (1983)), “there is no affirmative duty on a [trial] court to obtain an on-the-record waiver of a defendant’s right to testify,” United States v. Mitchell, 584 Fed.

2010See also United States v. Magwood, 445 F.3d 826, 830 (5th Cir.2006) (holding an allocution error would not be reversed on appeal because the appellant did “not furnish any information about what he would have allocuted to that might have mitigated his sentence”); State v. Bowen, 259 Kan. 798 , 915 P.2d 120, 127 (1996) (observing “defendant has not made the requisite proffer of the contemplated evidence,” and thus, the “denial of allocution was harmless error” (quoting State v. Hunt, 257 Kan. 388 , 894 P.2d 178, 191 (1995))); State v. Duke, 256 Kan. 703 , 887 P.2d 110, 126 (1994) (holding the f

2010See also United States v. Magwood, 445 F.3d 826, 830 (5th Cir.2006) (holding an allocution error would not be reversed on appeal because the appellant did “not furnish any information about what he would have allocuted to that might have mitigated his sentence”); State v. Bowen, 259 Kan. 798 , 915 P.2d 120, 127 (1996) (observing “defendant has not made the requisite proffer of the contemplated evidence,” and thus, the “denial of allocution was harmless error” (quoting State v. Hunt, 257 Kan. 388 , 894 P.2d 178, 191 (1995))); State v. Duke, 256 Kan. 703 , 887 P.2d 110, 126 (1994) (holding the f

2010See also United States v. Magwood, 445 F.3d 826, 830 (5th Cir.2006) (holding an allocution error would not be reversed on appeal because the appellant did “not furnish any information about what he would have allocuted to that might have mitigated his sentence”); State v. Bowen, 259 Kan. 798 , 915 P.2d 120, 127 (1996) (observing “defendant has not made the requisite proffer of the contemplated evidence,” and thus, the “denial of allocution was harmless error” (quoting State v. Hunt, 257 Kan. 388 , 894 P.2d 178, 191 (1995))); State v. Duke, 256 Kan. 703 , 887 P.2d 110, 126 (1994) (holding the f

2010See also United States v. Magwood, 445 F.3d 826, 830 (5th Cir.2006) (holding an allocution error would not be reversed on appeal because the appellant did “not furnish any information about what he would have allocuted to that might have mitigated his sentence”); State v. Bowen, 259 Kan. 798 , 915 P.2d 120, 127 (1996) (observing “defendant has not made the requisite proffer of the contemplated evidence,” and thus, the “denial of allocution was harmless error” (quoting State v. Hunt, 257 Kan. 388 , 894 P.2d 178, 191 (1995))); State v. Duke, 256 Kan. 703 , 887 P.2d 110, 126 (1994) (holding the f

2010See also United States v. Magwood, 445 F.3d 826, 830 (5th Cir.2006) (holding an allocution error would not be reversed on appeal because the appellant did “not furnish any information about what he would have allocuted to that might have mitigated his sentence”); State v. Bowen, 259 Kan. 798 , 915 P.2d 120, 127 (1996) (observing “defendant has not made the requisite proffer of the contemplated evidence,” and thus, the “denial of allocution was harmless error” (quoting State v. Hunt, 257 Kan. 388 , 894 P.2d 178, 191 (1995))); State v. Duke, 256 Kan. 703 , 887 P.2d 110, 126 (1994) (holding the f

2010See also United States v. Magwood, 445 F.3d 826, 830 (5th Cir.2006) (holding an allocution error would not be reversed on appeal because the appellant did “not furnish any information about what he would have allocuted to that might have mitigated his sentence”); State v. Bowen, 259 Kan. 798 , 915 P.2d 120, 127 (1996) (observing “defendant has not made the requisite proffer of the contemplated evidence,” and thus, the “denial of allocution was harmless error” (quoting State v. Hunt, 257 Kan. 388 , 894 P.2d 178, 191 (1995))); State v. Duke, 256 Kan. 703 , 887 P.2d 110, 126 (1994) (holding the f

2010See also United States v. Magwood, 445 F.3d 826, 830 (5th Cir.2006) (holding an allocution error would not be reversed on appeal because the appellant did “not furnish any information about what he would have allocuted to that might have mitigated his sentence”); State v. Bowen, 259 Kan. 798 , 915 P.2d 120, 127 (1996) (observing “defendant has not made the requisite proffer of the contemplated evidence,” and thus, the “denial of allocution was harmless error” (quoting State v. Hunt, 257 Kan. 388 , 894 P.2d 178, 191 (1995))); State v. Duke, 256 Kan. 703 , 887 P.2d 110, 126 (1994) (holding the f

2010See also United States v. Magwood, 445 F.3d 826, 830 (5th Cir.2006) (holding an allocution error would not be reversed on appeal because the appellant did “not furnish any information about what he would have allocuted to that might have mitigated his sentence”); State v. Bowen, 259 Kan. 798 , 915 P.2d 120, 127 (1996) (observing “defendant has not made the requisite proffer of the contemplated evidence,” and thus, the “denial of allocution was harmless error” (quoting State v. Hunt, 257 Kan. 388 , 894 P.2d 178, 191 (1995))); State v. Duke, 256 Kan. 703 , 887 P.2d 110, 126 (1994) (holding the f

2010See also United States v. Magwood, 445 F.3d 826, 830 (5th Cir.2006) (holding an allocution error would not be reversed on appeal because the appellant did “not furnish any information about what he would have allocuted to that might have mitigated his sentence”); State v. Bowen, 259 Kan. 798 , 915 P.2d 120, 127 (1996) (observing “defendant has not made the requisite proffer of the contemplated evidence,” and thus, the “denial of allocution was harmless error” (quoting State v. Hunt, 257 Kan. 388 , 894 P.2d 178, 191 (1995))); State v. Duke, 256 Kan. 703 , 887 P.2d 110, 126 (1994) (holding the f

2007See Hall v. Commonwealth, 30 Va. App. 74, 82 , 515 S.E.2d 343, 347 (1999) (“Claims of ineffective assistance of counsel may not be raised on direct appeal.”).4 Moreover, appellant does not allege a trial court error in either question presented to this Court (i.e., neither question presented asks this Court to substantively consider whether the trial court had an obligation to raise this issue sua sponte and committed error by failing to ensure that no conflict of interest existed here).

2007See Hall v. Commonwealth, 30 Va. App. 74, 82 , 515 S.E.2d 343, 347 (1999) (“Claims of ineffective assistance of counsel may not be raised on direct appeal.”).4 Moreover, appellant does not allege a trial court error in either question presented to this Court (i.e., neither question presented asks this Court to substantively consider whether the trial court had an obligation to raise this issue sua sponte and committed error by failing to ensure that no conflict of interest existed here).

2007See 1990 Va. Acts, c. 74. -4- noticed by the Court of Appeals.” While appellant urges us to apply the ends of justice exception and reach the substantive issue of conflict of interest here, we are unable to apply that exception because “unlike Rule 5A:18, Rule 5A:12 contains no ‘good cause’ or ‘ends of justice’ exception.” Selph v. Commonwealth, 48 Va. App. 426, 434 , 632 S.E.2d 24, 28 (2006).

2007See 1990 Va. Acts, c. 74. -4- noticed by the Court of Appeals.” While appellant urges us to apply the ends of justice exception and reach the substantive issue of conflict of interest here, we are unable to apply that exception because “unlike Rule 5A:18, Rule 5A:12 contains no ‘good cause’ or ‘ends of justice’ exception.” Selph v. Commonwealth, 48 Va. App. 426, 434 , 632 S.E.2d 24, 28 (2006).

1996The performance of Petitioner’s counsel was appropriate under the circumstances of this case and certainly does not rise to the level of failure to act “within the range of competence demanded of attorneys in criminal cases.” Marzullo v. Maryland, 561 F.2d 540, 544 (4th Cir. 1970), cert. denied, 435 U.S. 1011 .