A Couple of Suggestions

I regularly hear lawyers make the same stupid mistakes. Here are a couple of suggestions to help them avoid two very common mistakes:

1) Don’t argue ineffective assistance on direct appeal

You can try, but it isn’t going to work. I’ve seen judges appoint new counsel for a direct appeal because they thought appellate counsel might want to argue ineffective assistance. Lawyers have told me they intend to argue ineffective assistance on direct appeal. Please, have a look at State v. Spreitz, 202 Ariz. 1, 3, 39 P.3d 525, 527 (2002). The Supreme Court of Arizona explained:

[I]neffective assistance of counsel claims are to be brought in Rule 32 proceedings. Any such claims improvidently raised in a direct appeal, henceforth, will not be addressed by appellate courts regardless of merit. There will be no preclusive effect under Rule 32 by the mere raising of such issues. The appellate court simply will not address them. This ensures criminal defendants a timely and orderly opportunity to litigate ineffectiveness claims and, we believe, promotes judicial economy by disallowing piecemeal litigation.

You’ll look pretty stupid trying to argue ineffective assistance on direct appeal, and you’ll waste a lot of time doing it. Why does that seem so difficult for lawyers to understand?

2) Don’t assume a federal or out-of-state felony conviction is an historical prior

If you don’t know that, your clients have probably been suffering. “Before a court may use a foreign conviction for sentencing enhancement purposes under § 13-604, the superior court must first conclude that the foreign conviction includes every element that would be required to prove an enumerated Arizona offense.” State v. Smith, 194 P.3d 399, 401, 2008 Ariz. LEXIS 202, 542 Ariz. Adv. Rep. 6 (2008) (internal citations and quotations omitted). “Instead, the trial court must make ‘this determination by comparing the statutory elements of the foreign crime with those in the relevant Arizona statute.’” Id. “[T]here must be strict conformity between the elements of the [foreign] felony and the elements of some Arizona felony.” State v. Clough, 171 Ariz. 217, 219, 829 P.2d 1263, 1265-66 (App. 1992).

I’d guess that almost half of the time, a federal or out-of-state felony conviction isn’t an historical prior. The most common mistake I see involves human smuggling. 8 U.S.C. § 1324(a)(1)(A)(ii)(a) creates criminal penalties for “[a]ny person who . . . knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law.” The analogous statute in Arizona is A.R.S. § 13-2319, which provides, “[i]t is unlawful for a person to intentionally engage in the smuggling of human beings for profit or commercial purpose,” later explaining that “‘[s]muggling of human beings’ means the transportation, procurement of transportation or use of property or real property by a person or an entity that knows or has reason to know that the person or persons transported or to be transported are not United States citizens, permanent resident aliens or persons otherwise lawfully in this state.” A federal conviction could be based on conduct that wouldn’t support an Arizona conviction. You don’t need to look at the indictment. You don’t look any further than the statutes. The federal statute prohibits more conduct, so a conviction under it should not be used to enhance a state sentence.

I could go on for a while with other suggestions, but I don’t have the time. Hopefully this will help someone.