Bostwick v. Coursey

When defense counsel fails to ask the court to consider lesser-included offenses, a criminal defendant is entitled to post-conviction relief.

Defendant was convicted after a bench trial of Assault in the Second Degree, among other charges, for hitting a pedestrian with his truck while driving under the influence of alcohol. Defendant then filed for post-conviction relief, alleging constitutionally inadequate counsel because his attorney failed to ask the trial court to consider lesser-included offenses of assault. The post-conviction relief court granted Defendant a new trial and the state appealed, arguing (1) defense counsel was permitted to use an all or nothing approach and did not have to specifically ask for a lesser-included offense, and (2) Defendant failed to prove prejudice. The Court of Appeals affirmed, holding that (1) defense counsel did not exercise reasonable professional skill and judgment when he failed to ask the court to consider lesser-included offenses, and (2) failure to request the instruction was prejudicial because it “tend[s] to affect the result of the trial,” regardless of the fact that the case was tried to a judge, not a jury. Affirmed.