Defendant appeals from the denial of his petition for post-conviction relief (PCR) without a hearing. The petition alleges ineffective assistance of counsel regarding both his prior attorneys. Defendant's claim is primarily based on counsels' representation of him during two statements he gave to police, prior to the filing of any charges. Defendant lied to the police during his first statement, at which he was represented by his first attorney. He then retained a different attorney and gave a second statement in which he admitted to but tried to explain the prior misrepresentations. Defendant was charged with hindering apprehension by false statements and false swearing by inconsistent statements, in addition to the substantive offense of permitting or encouraging the release of a child abuse record.
Defendant testified during the first jury trial, which ended in a mistrial based on defense counsel's failure to provide the State notice of his retraction defense. Defendant exercised his right to remain silent during the second trial, which resulted in convictions on all counts. On direct appeal, the court affirmed the convictions for false swearing and hindering apprehension and vacated the conviction for unlawful disclosure of a child abuse record.
In support of his petition for PCR, defendant provided an expert report from a veteran criminal attorney which opined that counsels' representation fell below the constitutional standard. The PCR judge declined to consider the report because the petition presented mixed questions of law and fact which were for the court to determine, and she did not need the assistance of an expert report to decide the issues.
Under both the federal and state constitutions, it is well established that the right to effective counsel does not attach until the filing of charges. Defendant sought to expand this right to representation occurring during the investigation. The court found a defendant may not bring a PCR petition based on ineffective assistance of counsel for representation that occurred prior to being charged.
The court also found defendant failed to demonstrate either counsel was ineffective, and the PCR judge did not abuse her discretion in declining to consider defendant's expert report.