MI: Inability to meet plain error standard on a 4A claim doesn’t preclude an IAC claim for it

The fact defendant on appeal couldn’t satisfy the plain error standard for a search and seizure claim doesn’t mean that he can’t show ineffective assistance of counsel on the same claim. An IAC claim requires a more developed record. People v. Randolph, 2018 Mich. LEXIS 1131 (June 15, 2018):

Each standard does require a showing of prejudice: Carines’s third prong and Strickland’s second. But even here, a finding that a defendant failed to satisfy the prejudice prong when complaining about an error by the court will not necessarily mean that the defendant is unable to prevail on an ineffective-assistance claim relating to the same underlying issue. In fact, the record on which the claims are assessed will typically be different. An appellate court need not look beyond the trial court record when reviewing a trial court’s mistake for plain error; an “appellate court can find and correct the error without any entanglement in contested or unknown facts ….” That is the nature of plain-error review.

By contrast, the errors underlying ineffective-assistance claims often are not apparent from the trial record but instead require additional evidentiary development. This is because ineffective-assistance claims center on deficiencies in the defense counsel’s decision-making, which will not always reveal themselves in the official record. As the United States Supreme Court has noted, the trial record is “devoted to issues of guilt or innocence” and will often “not disclose the facts necessary to decide either prong of the Strickland analysis. If the alleged error is one of commission, the record may reflect the action taken by counsel but not the reasons for it.” Further, “[w]ithout additional factual development, … an appellate court may not be able to ascertain whether the alleged error was prejudicial.” For these reasons, in Michigan, a defendant can seek an evidentiary hearing in the trial court on defense counsel’s performance and then bring an ineffective-assistance claim on direct appeal with the benefit of the augmented hearing record.

Because facts outside the trial record could be critical to an ineffective-assistance claim, a court presented with such a claim coupled with a related plain-error argument cannot simply plug in the plain-error prejudice analysis for the ineffective-assistance prejudice analysis. As with the remaining elements of each claim, a court must evaluate the record evidence relevant to each independent legal claim.