State v. Davis (Slip Opinion)

ASSAAD, 23 I&N Dec. 553 (BIA 2003) ID 3487 (PDF) (1) Case law of the United States Supreme Court holding, in the context of criminal proceedings, that there can be no deprivation of effective assistance of counsel where there is no constitutional right to counsel does not require withdrawal from Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff’d, 857 F.2d 10 (1st Cir. 1988), finding a right to assert a claim of ineffective assistance of counsel in immigration proceedings, where the United States Courts of Appeals have recognized that a respondent has a Fifth Amendment due process right to a fair immigration hearing, which may be denied if counsel prevents the respondent from meaningfully presenting his or her case. (2) The respondent did not establish that his former counsel’s failure to file a timely appeal constituted sufficient prejudice to warrant consideration of his late appeal on the basis of ineffective assistance of counsel.

<bold>1. Constitutional Law — effective assistance of counsel — tardiness</bold> <block_quote> Defendant was not denied effective assistance of counsel in a termination of parental rights proceeding even though his counsel was late on the second of five days of hearing after a lunch recess, because: (1) respondent failed to demonstrate how his attorney's tardiness caused him to be denied a fair hearing; and (2) there was no way of determining what respondent's attorney was precluded from asking based on her failure to make an offer of proof as required by N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 103.</block_quote> <bold>2. Evidence — hearsay — mental health records of children</bold> <block_quote> The trial court did not err in a termination of parental rights case by admitting, over objection, mental health records of two of the minor children, because: (1) even assuming arguendo that the records contain inadmissible hearsay, in a bench trial it is presumed that the judge disregarded any incompetent evidence that may have been admitted unless it affirmatively appears that he was influenced thereby; and (2) respondent has not pointed to any specific instances of hearsay upon which the trial court improperly relied.</block_quote> <bold>3. Termination of Parental Rights — past abuse — reasonable probability</bold> <bold>of continued abuse — emotional and behavioral problems</bold> <block_quote> The trial court did not abuse its discretion by terminating respondent father's parental rights, because: (1) the trial court found that all three children had been abused and exhibited symptoms of that abuse, and respondent admitted that he physically<page_number>Page 279</page_number> beat and abused the children; (2) the court determined there was a reasonable probability that respondent would again abuse the children if they were returned to his care based on the testimony of respondent's individual therapist; (3) the children's therapist test

Juvenile court grant of permanent custody of children to children services agency was not against the manifest weight of the evidence and did not violate due process where there was competent credible evidence to support the court's determination that granting custody was in the best interest of the children and appellant did not challenge the court's determination that the children had been in the agency's custody for twelve or more months in a consecutive twenty-two-month period. Juvenile court did not commit plain error by failing to appoint separate counsel for one of the children where record reflected that child was of young age and had an intellectual disability, and evidence did not indicate that child expressed strong, consistent desire to return to parent's custody. Appellant failed to demonstrate ineffective assistance of trial counsel based on failure to object to in camera interview, introduction of psychologist's reports, or alleged hearsay testimony because appellant failed to establish a reasonable probability that result of proceeding would have been different if counsel had taken these actions.

Defendant did not demonstrate that his attorney engaged in conduct that precluded him from knowingly, intelligently, and voluntarily entering his guilty plea to aggravated vehicular homicide. To the contrary, the record supports a determination that counsel's advice to plead guilty to the charged offense constituted a reasonable strategy. Judgment affirmed.

The Petitioner, Kadarick Lucas, pleaded guilty to two counts of aggravated robbery, and he received an eight-year effective sentence. The Petitioner then filed a petition for postconviction relief, contending that he received ineffective assistance of counsel and that he did not plead guilty freely and voluntarily. Following a hearing, the post-conviction court denied the petition, and the Petitioner appeals. After a review of the record, we affirm the judgment of the post-conviction court.