Ineffective Assistance of Trial or Appellate Counsel

"My lawyer did not do their job" is the most common thing people say after a conviction, and it is also one of the hardest claims to win. The law does not ask whether counsel could have done better. It asks a narrower question, and understanding that question is the difference between a claim that gets a hearing and one that gets denied on the pleadings.

The legal standard

Claims of ineffective assistance are governed by Strickland v. Washington, 466 U.S. 668 (1984), which requires two things:

  1. Deficient performance. Counsel's representation fell below an objective standard of reasonableness measured against prevailing professional norms. Courts apply a strong presumption that what counsel did was sound strategy, and they evaluate the decision as of the time it was made, not with hindsight.
  2. Prejudice. There is a reasonable probability that, but for counsel's errors, the result would have been different. A reasonable probability is one sufficient to undermine confidence in the outcome — less than "more likely than not," but more than a theoretical possibility.

Both prongs must be satisfied. A serious error with no demonstrable effect on the outcome will not produce relief, and a bad outcome without an identifiable professional failure will not either.

Where the claim has to be filed

In Colorado, ineffective assistance claims generally cannot be resolved on direct appeal. The reason is structural: proving the claim almost always requires evidence that is not in the trial record — what counsel knew, what was investigated, what advice was given, what a missing witness would have said. Colorado courts therefore direct these claims to a Crim. P. 35(c) proceeding in the district court, where a hearing can be held. Ardolino v. People, 69 P.3d 73 (Colo. 2003), is the decision usually cited for that rule.

One consequence is that the trial lawyer cannot bring this claim. An attorney cannot investigate and litigate their own ineffectiveness, and a lawyer who was part of the same office or the same defense team is often in the same position. This is one of the few areas of criminal practice where independent counsel is not a preference but a necessity.

Claims involving trial counsel

The claims that most often survive to a hearing involve something concrete that can be proved:

  • Failure to investigate: witnesses never interviewed, records never obtained, scenes never visited, experts never consulted.
  • Failure to consult or retain an expert where the prosecution's case rested on forensic, medical or digital evidence.
  • Failure to communicate a plea offer, or advice about an offer that was wrong. See Missouri v. Frye and Lafler v. Cooper, both decided in 2012.
  • Advice about the consequences of a plea that was incorrect, including immigration consequences under Padilla v. Kentucky, 559 U.S. 356 (2010).
  • Failure to object to inadmissible evidence, improper argument, or an erroneous jury instruction — which can also mean an appellate issue was reviewed only for plain error rather than preserved error.
  • An actual conflict of interest that adversely affected the representation.
  • Failure to move to suppress evidence obtained unlawfully.

Where the conviction followed a guilty plea, prejudice is measured differently: the question is whether, but for counsel's errors, the defendant would have rejected the plea and insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52 (1985).

Claims involving appellate counsel

Appellate counsel can be ineffective too. The right to effective assistance extends to a first appeal as of right, Evitts v. Lucey, 469 U.S. 387 (1985). But appellate counsel is not required to raise every non-frivolous issue, and selecting among issues is exactly the kind of judgment courts protect, Jones v. Barnes, 463 U.S. 745 (1983).

A viable appellate ineffectiveness claim therefore usually looks like this: there was a clearly stronger issue, apparent on the face of the record, that was not raised, and there is a reasonable probability that raising it would have changed the outcome of the appeal. Vague dissatisfaction with how the brief was written is not enough. Identifying the omitted issue and proving it was stronger requires reading the entire record again, independently.

What proving the claim actually involves

A well-supported motion is not a list of complaints. It typically includes the specific factual allegations, the records and affidavits that support them, an explanation of what a reasonable attorney would have done, and a concrete account of how the outcome would likely have differed. At the hearing, trial counsel is usually called to testify, and raising the claim generally waives the attorney-client privilege as to the subject of the claim.

An honest assessment

The amount of potential ineffectiveness claims is frankly enormous, and depends greatly on the nature of the trial and the potential defenses. I will listen to your situation and tell you plainly whether I think there is a claim that meets both Strickland prongs, including when I do not. That is more useful than filing something that will be denied without a hearing and may bar a later claim.

Talk with Tillman

Consultations are free, and you will speak with me rather than with staff. Contact me here or call 720-507-5814.

Written by Tillman Patrick Clark, Tillman Patrick Clark, LLC, Denver, Colorado. Last reviewed: July 31, 2026. This page is general information and is not legal advice. Case law and procedural requirements change; confirm current requirements with a lawyer about your specific case.