Rule 21 Motion Based on Ineffective Assistance of Trial Counsel
Rule 21. Motion Based on Ineffective Assistance of Trial Counsel
Rule Text
(a) Following the docketing of a direct criminal appeal, the appellant may file, in the trial court, a motion claiming ineffective assistance of trial counsel. The motion may be used to seek a new trial or to seek plea withdrawal. The motion shall be filed prior to the filing of the appellant’s initial appellate brief. Upon a showing of extraordinary circumstances, the appellate court may grant leave to file a motion after appellant has filed his brief, but in no event shall a motion be filed after the case has been taken under advisement by the appellate court. A copy of the motion shall be served upon all trial counsel and the appellate court. The motion shall contain nonspeculative allegations of facts which, if true, could support a determination that counsel’s representation was deficient and prejudiced the appellant. Any claims of ineffectiveness not made in the motion shall not be considered by the trial court unless the trial court determines that the interests of justice or judicial efficiency require the consideration of issues not specifically indicated in the motion. A response may be filed within 15 days after the motion is served.
(b) Upon the filing of the motion, briefing in the appeal shall be stayed until further notice from the appellate court.
(c) The trial court may grant or deny the motion without a remand from the appellate court. The trial court shall determine the motion within 90 days after the motion is filed, unless the determination is continued by written order of the trial court, which continuation may not exceed 90 days from the expiration of the initial 90 day period, unless the appellate court orders a further extension. If the trial court enters such a continuation order, the trial court shall provide a copy of the order to the appellate court. In no event shall a motion filed under this rule be deemed denied. The trial court shall enter an order determining the motion.
(d) The order determining the motion shall include findings of fact and conclusions of law concerning the claimed deficient performance by counsel and the claimed prejudice suffered by appellant as a result. When disposition of a motion filed under this rule is made without a hearing, the order shall include a statement of the reason(s) for determination without hearing. The clerk of the trial court shall provide the clerk of the appellate court with a copy of the trial court’s order disposing of the motion.
(e) If trial court denies the motion, appellant may file a notice of appeal to challenge the trial court’s order denying the motion. When such an appeal is docketed in the appellate court, that appeal shall be consolidated with the initial direct appeal. If the appellant does not appeal from the trial court’s order denying the motion, the clerk of the appellate court shall notify the parties of a new briefing schedule for the initial appeal.
Amendment history: Added April 6, 2015, effective July 1, 2015. Failure to file motion. — Defendant was prejudiced by defense counsel’s deficient performance for failing to timely file a new trial motion. On remand pursuant to this rule, the district court held that it would have granted the motion in the interest of justice, because defendant’s conviction for attempted first degree murder was contrary to the weight of the evidence. Ken v. State, 2011 WY 167, 267 P.3d 567, 2011 Wyo. LEXIS 173 (Wyo. 2011). Failure to request competency evaluation. — Trial court did not err in denying defendant’s motion to withdraw his no-contest plea based on trial counsel’s failure to request a competency evaluation of defendant, because while defendant made delusional statements while in jail, those symptoms did not persist, so that from the time he was released on bond through the time of his no-contest plea, there was no indication that he lacked the capacity to rationally decide whether to follow counsel’s advice to plead not guilty by reason of mental illness. Delgado v. State, 2022 WY 61, 509 P.3d 913, 2022 Wyo. LEXIS 61 (Wyo. 2022). Motion properly denied. — District court did not err in denying the motion asserting defendant’s trial attorney provided ineffective assistance of counsel when he failed to raise a challenge under Batson as the prosecutor testified that he struck Juror #116 because he did not have a spouse or children, did not have a job that interacts with people, and had recently changed jobs, and he or a family member had been a complainant, defendant, or witness in a criminal case; and the State’s reasons for utilizing a peremptory challenge on Juror # 116 were neutral and non-discriminatory. Yazzie v. State, 2021 WY 72, 487 P.3d 555, 2021 Wyo. LEXIS 80 (Wyo. 2021). Rule 22 through 26. [Reserved].