Pereida-Alba v. Coursey
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Petitioner was convicted of first-degree robbery. After pursuing a direct appeal, he filed a petition for postconviction relief, alleging he received ineffective assistance of trial counsel. Among other things, petitioner argued that his trial counsel either did not decide or reasonably could not have decided to forego giving the jury the option of convicting him of the lesser-included offense of third-degree robbery. The post-conviction court
ruled that no reasonable counsel would have failed to ask for an instruction on that lesser-included offense and entered judgment in petitioner’s favor. The Court of Appeals affirmed the post-conviction court’s judgment but on a different ground, concluding that the failure to make a conscious decision regarding that issue was sufficient, without more, to establish constitutionally inadequate assistance. The State appealed. After its review, the Supreme Court reversed both the appellate and postconviction courts: "Although the post-conviction court did not say so expressly, its conclusion may well reflect the view that, given the particular facts in this case, the risk that an 'all or nothing' strategy posed was so high (seven and a half years of certain confinement on conviction), and the cost of seeking a lesser-included offense instruction was so low (adding a possibility of short-term imprisonment without relinquishing an argument for acquittal), that it is more probable than not that petitioner’s trial counsel did not engage in the necessary decision-making." This case was remanded to the circuit court for further proceedings.
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