In Interest of ADR

603 S.W.2d 575, 1980 Mo. LEXIS 437

• Court: Supreme Court of Missouri
• Decided: August 18, 1980
• Docket: 61177, 56658 and 57596
• Status: Published

Opinions

RENDLEN, Judge.

In this post-conviction civil action, movant asks this Court to recall the mandate and vacate our opinion affirming his robbery conviction, contending that defense counsel in the criminal appeal, was ineffective by constitutional standards. Such action, cognizable by our Court as the tribunal which heard and determined the appeal, is limited to consideration of that single issue, see Hemphill v. State, 566 S.W.2d 200, 208 (Mo. banc 1978), and governed by procedures prescribed for Rule 27.26 proceedings insofar as applicable.

Recently in Seales v. State, 580 S.W.2d 733, 736 (Mo. banc 1979), we reiterated the standard for appraising ineffective assistance of counsel claims in post-conviction proceedings as follows: “In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances and that he was prejudiced thereby.” The standard there enunciated for gauging trial counsel’s conduct is appropriate for general application and is now adopted for evaluation of appellate counsel’s actions.

Rone first asserts appellate counsel was ineffective in failing to properly preserve and present the then minor defendant’s (movant here) challenge to the juvenile court’s relinquishment of jurisdiction and because of that failure the issue was not reached on appeal, see In re A.D.R., 515 S.W.2d 438, 439 (Mo. banc 1974).¹

When first considering Rone’s motion to recall the mandate we made the preliminary determination that appellate counsel had failed to properly preserve the issue of the alleged error in the juvenile court’s termination proceeding and as a result the issue was not reached on appeal. Accordingly, we recalled our mandate. However, having now reviewed the record and considered the merit of movant’s contention we find, for reasons following, the juvenile court acted properly in terminating its jurisdiction allowing Rone’s trial as an adult. Thus no prejudice flowed from the failure to preserve the issue and Rone’s contention of ineffective assistance of appellate counsel must be denied.

Arthur Rone was convicted of first degree robbery in the circuit court of Jackson County September 29, 1971. The Jackson County Juvenile Court, pursuant to § 211.-071, RSMo 1969, had entered an order terminating its jurisdiction and allowing Rone’s (who was sixteen at the time of his offense) prosecution under the general law.

At about 9:00 p.m., December 14, 1970, the Abashion Confectionery in Kansas City was robbed by two youths, one of whom confronted the victim with a shotgun and said “Look at this, this is a holdup.” The clerk thought it was a joke, but that impression was quickly dispelled when the robber shoved the muzzle against his chest and demanded money. Taking some currency, the robbers left and one of them, Rone, fired a blast into the ceiling of the store.

Patrolman Bryant of the Kansas City Police heard the shot and saw the robbers running from the store with a “long barreled gun.” Their escape was thwarted when the van they drove from the scene, collided with another vehicle during a high speed chase. Almost immediately thereafter both were arrested.

Defendant (movant here) was taken to the 27th Street police station and there given the Miranda warnings. According to Officer Bryant, during the booking process and not in response to any question, defendant volunteered that it wasn’t his day, that the money taken in the holdup was not worth it, and that he wished he had his leather coat left in the van. Discovering Rone was sixteen years of age the officer took him to the youth unit at the downtown police headquarters where they met a deputy juvenile officer, known to Rone from the “parental home.” ' In the presence of this juvenile officer Rone went to another part of the same building.

It is unclear whether Rone’s parents were notified then of his arrest but one of the investigation officers testified that some of Rone’s personal articles were delivered to his parents when they came to police headquarters, apparently on the night of his arrest. On the other hand one of Rone’s parents denied being present at the police station. Having been advised of his Miranda rights on three separate occasions and while in the presence of Deputy Juvenile Officer Gardner, Rone made additional statements confessing complicity in the crime.

A petition was filed by the juvenile officer of Jackson County alleging that Rone participated in an armed robbery. Subsequently, on December 18, 1970, that officer filed a motion requesting dismissal of the petition, so Rone might be tried as an adult. At the hearing conducted January 29, 1971, under § 211.071, RSMo 1969, evidence as to the nature of the offense, Rone’s amenability to treatment by the juvenile court, the adequacy of Missouri juvenile facilities to deal with the juvenile’s problem and his incorrigibility as evidenced by the repeated referrals in the juvenile system, was presented. The juvenile court then dismissed the petition, relinquished its jurisdiction and entered an order allowing Rone’s prosecution as an adult. Rone was tried in the circuit court and on his conviction of robbery first degree was sentenced to 15 years imprisonment.

Movant contends that chapter 211, RSMo 1969 creates a “right” to treatment for persons subject to the jurisdiction of the juvenile court and that the Juvenile Court’s relinquishment of jurisdiction abrogated that “right.” In this connection it has been held that when the State in its role as parens patriae places a child in a juvenile facility under restraint of liberty, it has a concomitant obligation to provide treatment. Nelson v. Heyne, 491 F.2d 352, 360 (7th Cir. 1974), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974); Martarella v. Kelley, 349 F.Supp. 575, 585 (S.D. N.Y. 1972). In those cases it was stated the right to treatment emanates from the eighth and fourteenth amendments to the United States Constitution. Other decisions have based the obligation for treatment on the ameliorative purpose of State juvenile acts. See Janet D. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060, 1072 (1976). However, we need not reach the question of whether Chapter 211, RSMo 1969, creates such “right” to treatment for confined juveniles, because as movant recognizes, any such right is limited by the express terms of § 211.071, RSMo 1969, which provides that a child “not a proper subject”' for the juvenile system may be prosecuted under the general law.² Once the juvenile court has relinquished jurisdiction, the juvenile is subject to criminal prosecution as an adult, State v. Ford, 487 S.W.2d 1, 5 (Mo. 1972), cert. denied, 411 U.S. 983, 93 S.Ct. 2277, 36 L.Ed.2d 959 (1973), and any juvenile treatment rights terminate.

While a laudable purpose of our juvenile code is the rehabilitation of erring youths, State ex rel. Shartel v. Trimble, 333 Mo. 888, 63 S.W.2d 37, 38 (Mo. 1933), the statute has been described as a complete code, with each section to be construed in relation to the other, State v. Williams, 473 S.W.2d 382, 383 (Mo. 1971). The legislature by providing that one not a proper subject may be prosecuted as an adult clearly intended in a proper case that consideration of societal needs and the likely unrewarding ameliorative effect of the juvenile justice system require application of the general law. Pertinent here is the following statement of this Court responding to a constitutional attack on an earlier statute: “Boys, like others of the species, are not cast in the same mould. Measures that are sufficient to reclaim one are wholly without avail as to another.” State ex rel. Boyd v. Rutledge, 321 Mo. 1090, 13 S.W.2d 1061, 1066 (Mo. banc 1929).

Against this background we examine the question of whether the Jackson County Juvenile Court erred in relinquishing its jurisdiction.

Following Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), our Court has held the juvenile in such proceedings is entitled to notice, access to social reports and investigations pertaining to him, a hearing in which he is represented by counsel and, to permit meaningful appellate review, a statement of reasons for the termination. State ex. rel. T.J.H. v. Bills, 504 S.W.2d 76, 80-81 (Mo. banc 1974). However, the Supreme Court of the United States “has never attempted to prescribe criteria for, or the nature of quantum of evidence that must support, a decision to transfer a juvenile for trial in an adult court.” Breed v. Jones, 421 U.S. 519, 537, 95 S.Ct. 1779, 1790, 44 L.Ed.2d 346 (1975). Missouri decisions have identified a variety of factors germane to a decision to terminate juvenile court jurisdiction in § 211.071 proceedings, State ex rel. T.J.H. v. Bills, 495 S.W.2d 722, 728 (Mo.App. 1973), and in State v. Owens, 582 S.W.2d 366, 374 (Mo.App. 1979), several were enumerated:

Relevant factual criteria which have been used by the courts as a basis for such discretion are 1) whether the juvenile’s age, maturity, experience and development are such as to require prosecution under the general law, Coney v. State, 491 S.W.2d 501, 512 (Mo.1973), 2) whether or not the juvenile had a mental disease or defect which would prevent him from knowing or appreciating the nature, quality or wrongfulness of his conduct and which would render him incapable of conforming-his conduct to the requirements of the law, State v. Kemper, supra, at 249, 3) whether or not the nature and seriousness of the juvenile’s conduct constitutes a threat to the community, State ex rel. Arbeiter v. Reagan, 427 S.W.2d 371, 377 (Mo. banc 1968), 4) whether or not the act committed by the juvenile was done in a violent and vicious manner, Coney v. State, supra, at 512, and, 5) whether or not there is a reasonable likelihood that like further conduct will not be deterred by continuing the juvenile under the juvenile law process, State ex rel. T.J.H. v. Bills, 495 S.W.2d 722, 728 (Mo.App. 1973).

Pertinent to this determination are prior contacts of the youth with law enforcement authorities which reflect behavior patterns demonstrating imperviousness to the juvenile court’s rehabilitative efforts. See Richardson v. State, 555 S.W.2d 83, 87 (Mo.App. 1977).

It is important to be mindful that appellate review of a juvenile court’s decision to terminate jurisdiction as to a youthful offender is limited to a determination of whether in the totality of the circumstances the court abused its discretion. State v. Kemper, 535 S.W.2d 241, 247 (Mo.App. 1975); Coney v. State, 491 S.W.2d 501, 512 (Mo.1973). See State ex rel. Boyd v. Rutledge, 321 Mo. 1090, 13 S.W.2d 1061, 1066 (Mo. banc 1929). As we shall now discuss, it is clear the trial court reasonably exercised its discretion in those proceedings.

Rone had been referred to juvenile authorities on 15 previous occasions during the 20 months preceding the robbery. Those referrals reveal an escalating pattern of criminal behavior culminating in violent attacks on several victims. In the 8 months immediately before the armed robbery under consideration, Rone was referred for attempted larceny, rape, common assault and flourishing a deadly weapon during a fight in a pool hall. Further, he was unresponsive to the rehabilitative efforts of Jackson County juvenile authorities. After originally having been placed on probation, the referrals for criminal conduct continued and Rone was committed to McCune Boys Home in Jackson County. While there he was referred for auto theft, indecent exposure towards a teacher, and cited three times for making sexual overtures to female staff members. Subsequently he was released from McCune and returned to probationary status. Though there was testimony concerning the absence of referrals for other criminal offenses, while on probation he committed the armed robbery in question during which he fired a shotgun. Placing a loaded shotgun against the chest of a store clerk and then, having already obtained the proceeds of the robbery, discharging the weapon on his way from the store, may properly be characterized as a dangerous act, demonstrating a proclivity for violence and a disdainful attitude for the safety of others.

James F. Walsh, Director of Juvenile Court Services for Jackson County, testified that Rone was beyond the treatment scope of the Jackson County Juvenile Court and that Rone would be dangerous if he became associated with an older person in open society who would encourage him to use a weapon. Walsh’s opinion was based upon Rone’s behavior pattern, his overall negative adjustment, the nature of the crime, his association with adults and criminal activity, and his demonstrated lack of impulse control. Additionally, Rone’s inability to control himself rendered the Missouri State Training School at Boonville inadequate. Walsh stated, “This boy’s [Rone’s] adjustment pattern in a wide open setting very similar to Boonville has been poor. His impulse control in associating with people that seem to lead him on or talk him into more serious offenses is pretty evident, so at a facility like Boonville that is open, cottage type, campus type of orientation with this young man’s lack of impulse control would not be sufficient to keep him in while he is in essence being worked with.”

Joseph Steffen, employed by the Jackson County Juvenile Court, stated existing juvenile court facilities were inadequate for Rone’s treatment and accordingly recommended his trial as an adult.

In its order dismissing the juvenile petition, effectively terminating its jurisdiction, the juvenile court found there were no adequate juvenile facilities for Rone’s treatment including the McCune Boys Home and the State Training School at Boonville, that Rone was not amenable to probation and that he constituted a danger to the community. Detailing Rone’s previous referrals to the juvenile court and the previous efforts at treatment the court concluded that Rone, “is beyond further rehabilitative care, treatment, and services of this court; that every possible means and resource under the Juvenile Code to rehabilitate said child has been exhausted; that he would not benefit from any further care, treatment, and services under the Juvenile Code.” From this it is clear the juvenile court reasonably exercised its discretion.

Appellant also attacks the juvenile court’s order because there was no explicit finding that the termination of jurisdiction was conducive to Rone’s welfare and argues that the order was not supported by the evidence. This contention too, is not well taken. The ultimate purpose for allowing a juvenile to be tried as an adult is to protect the public in cases where further treatment within the juvenile system would be unavailing. State ex rel. Arbeiter v. Reagan, 427 S.W.2d 371, 377 (Mo. banc 1968). Here the standards for findings (as well as those for notice and hearing) were met. There is no requirement that the juvenile court employ a particular litany when making its findings; it is necessary only that those findings permit ascertainment of the basis for the Court’s decision and in this instance they are full, explicit and abundantly supported by the evidence.

It is also asserted that the absence of adequate facilities cannot support a juvenile court’s decision to terminate jurisdiction.³ Whether vel non the establishment of long term confinement centers for violent juvenile offenders might be advisable, the juvenile court has the duty to review the amenability of the juvenile to treatment resources presently available. While availability of juvenile court services and the likely response thereto are to be considered, they are not as movant urges, the ultimate determinative factors. As stated in State v. Kemper, 535 S.W.2d 241, 251-252 (Mo.App. 1976), “unfortunately juvenile courts are frequently presented with cases where the entire gamut of the facilities of that institution have been made available to a child, without beneficial results. In such a case the futility of further efforts within the juvenile system becomes an obvious factor in that court’s relinquishment of jurisdiction. However, waiver is not to be conditioned upon lack of success in the juvenile process, when the court, as it did in this case, concludes that the relevant factors, properly found and considered, lead to the conclusion that the juvenile system is not the proper forum for the handling of the particular youth involved.”

We conclude that the record of the termination hearing demonstrates a careful attention to procedural standards and no abuse of the juvenile court’s discretion.⁴ Hence it cannot be said movant was prejudiced by appellate counsel’s failure to have properly preserved the point in the criminal appeal and this aspect of the claim of ineffective assistance of counsel is denied.

Movant’s next claim concerns appellate counsel’s alleged failure to present certain arguments in his attempt to overturn the trial court’s admission of Rone’s confession in evidence. Addressing this contention it should first be noted that diming trial defendant objected to the use of his confession, raising the terms of § 211.271(3), RSMo 1969, as a bar to its admission and that objection, properly preserved, was presented on appeal and considered by this Court when affirming the conviction. See In re A.D.R., 515 S.W.2d 438, 440 to 444.

Movant now advances a different ground for his objection to the trial court’s action, to wit: that Rone’s in-custody confession was taken without notifying his parents and that this constitutes a violation of § 211.131(2)⁵ rendering the confession inadmissible. This ground for objection was not suggested during trial or preserved in the motion for new trial but movant would fault appellate counsel for failing to present such ground (the § 211.131 argument) as plain error on appeal. Before we examine the merits of this claim⁶ it seems apparent that counsel may well have foregone pressing such ground for objection as a tactical choice to focus attention on the more comprehensive and viable argument that § 211.-271(3) mandated the exclusion of all confessions obtained from the juvenile in custody. However, whether appellate counsel’s action was the result of choice or oversight, Rone was not prejudiced thereby and this ineffective assistance of counsel contention is also without merit.

Admissibility of a juvenile’s statement taken in the presence of the juvenile officer, Wade v. State, 531 S.W.2d 726 (Mo. banc 1976) is determined from the totality of the circumstances on a case by case- basis.⁷ State v. Sinderson, 455 S.W.2d 486, 493-494 (Mo. 1970); State v. Wright, 515 S.W.2d 421, 430-431 (Mo. banc 1974). In Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197 (1979), the Court stated: “The totality approach permits — indeed, it mandates — inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile’s age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his fifth amendment rights, and the consequences of waiving those rights.”

The record abundantly demonstrates the state sustained its burden of showing voluntariness. State v. Higgins, 592 S.W.2d 151, 158 (Mo. banc 1979), and in the totality of the circumstances we find no error in admission of the confession. Rone, a sixteen year old of above average intelligence and extensive experience with law enforcement officials, was interviewed by a Kansas City police officer in the presence of but without participation by a juvenile officer. Before the interrogation, Rone was advised of his rights on three occasions. Despite his assertion the statement was elicited by trickery, Rone admitted the statement was made voluntarily, without mistreatment or coercion on the part of the interrogating officer and after being told the statement could be used against him in court. Moreover Rone previously had voluntarily admitted his participation in the robbery during the booking process prior to any interrogation. In the totality of the circumstances, it cannot be said the trial court erred in admitting the statement. Because this additional ground for objection to admission of the confession could not have prevailed (had it been raised at trial) it cannot be said the trial court’s ruling constituted reversible error. A fortiori, no manifest injustice or miscarriage of justice resulted and we may not condemn as constitutionally ineffective, appellate counsel’s failure to raise this specious additional argument as plain error. Seales v. State, 580 S.W.2d 733, 736 (Mo. banc 1979).⁸

It is therefore ordered that the previous mandate in this cause reissue and we affirm our opinion In re A.D.R., 515 S.W.2d 438 (Mo. banc 1974).

MORGAN and HIGGINS, JJ., concur. WELLIVER, J., concurs in part in separate opinion filed. SEILER, J., dissents in separate dissenting opinion filed. BARDGETT, C. J., dissents and concurs in dissenting opinion of SEILER, J. DONNELLY, J., dissents.

1 . Our opinion in that case involved two causes consolidated on appeal: State v. Rone, No. 57596 (appeal from Rone’s criminal conviction) and In re A.D.R., No. 56658 (appeal from termination of juvenile court jurisdiction).

2 . Section 211.071, RSMo 1969, provides in full:

In the discretion of the judge of the juvenile court, when any petition under this chapter alleges that a child of the age of fourteen years or older has committed an offense which would be a felony if committed by an adult, or that the child has violated a state or municipal traffic law or ordinance or that a minor between the ages of seventeen and twenty-one years over whom the juvenile court has jurisdiction has violated any state law or municipal ordinance, the petition may be dismissed and such child or minor may be prosecuted under the general law, whenever the judge after receiving the report of the investigation required by this chapter and hearing evidence finds that such child or minor is not a proper subject to be dealt with under the provisions of this chapter. (Emphasis ours.)

3 . We need not reach movant’s contention respecting the reliance upon hearsay by an expert witness when stating his opinion as to whether Rone should be tried as an adult. The expert stated he did not rely on Rone’s statement nor did the court admit those statements into evidence.

4 . The effect upon termination proceedings of Supreme Court Rule 118, “Dismissal to allow prosecution under general law,” is not pertinent, because this rule was not placed in effect until August 1, 1976, some 5V2 years after the juvenile court decision to terminate its jurisdiction as to Rone.

5 .Section 211.131 provides:

1. When any child found violating any law or ordinance or whose behavior, environment or associations are injurious to his welfare or to the welfare of others or who is without proper care, custody or support is taken into custody, the taking into custody is not considered an arrest.

2. When a child is taken into custody, the parent, legal custodian, or guardian of the child shall be notified as soon as possible.

3. The jurisdiction of the court attaches from the time the child is taken into custody.

6 . As discussed in the first paragraph of this opinion, this postconviction proceeding is brought pursuant to Hemphill v. State, 566 S.W.2d 200 (Mo. banc 1978), for examination of a single issue; namely, effectiveness of appellate counsel measured against constitutional standards. Further, the standard of review for such case is that announced by this Court in Seales v. State, 580 S.W.2d 733, 736 (Mo. banc 1979). The dissent misses or avoids this point and (1) erroneously treats the case as though here on original appeal; (2) it again raises the point which was injected sua sponte by a dissent in the original criminal appeal of this cause. 515 S.W.2d 438 at 442. (The author of both dissents is the same.) (3) Compounding this error, the dissent ignores that the point (the so-called § 211.131(2) issue) was neither raised nor preserved in the trial court, and appellate counsel was limited and could only have urged the point as “plain error” under the standard of “manifest injustice" or “miscarriage of justice.” Rule 30.20. Disregarding the rules governing such proceedings and ignoring Seales v. State, the dissent would examine this questionable issue for ordinary error.

In addition, whether § 211.131(2) was or was not followed is unclear from the record before us, primarily because the question was not raised at trial. The evidence that we do have indicates that defendant Rone exhibited special interest in retrieving his black coat which he had left in the escape vehicle. One of the investigating officers testified that Rone’s parents came to police headquarters to pick up the jacket (a thing they could not have done without notice of his detention). Rone’s father denied picking up the jacket. Defendant’s objections for various reasons precluded development of the testimony, but for which further light might have been cast upon the matter. The dissent however erroneously states “there is a complete absence of any direct or positive evidence in the record of compliance [with §211.131.2].” (Emphasis added.)

This overlooks the following significant portions of the testimony of Officer Floyd Smith, who after describing the situation at the scene of the crime, testified that the suspects, including Rone, were returned in the “paddy wagon.” He stated that Rone was then in custody and the following questions and answers ensued with objections by defense counsel Dieckman, who sought first to exclude the evidence, then requested a mistrial when certain evidence on the matter was adduced.

Q. [Prosecutor] And was he [Rone] in custody at that time?

A. He was.

Q. By the way, where was that black leather jacket?

A. The leather jacket was returned to Rone’s parents. They came to the police headquarters—

MR. DIECKMAN: [Defense counsel] Your Honor, I will object to this.

(WHEREUPON, the following proceedings were had, at the bench, in the presence but OUT OF THE HEARING OF THE JURY.)

MR. DIECKMAN: [Defense counsel] Your Honor, as to who or what became of this property has no bearing on this case, strictly prejudicial to this defendant.

MR. PEAK: [Prosecutor] I was just trying to explain, Your Honor, where all these items went.

THE COURT: Do you know if this police officer was present when they came to police headquarters?

MR. PEAK: In my conference with this officer, before the trial, he stated that it was released to the parents. I don’t know whether specifically this was the officer who did release it to them. I can find out, of course. I’ll ask him that question before I pursue it any further, if the Court would like.

THE COURT: All right, I think the objection is well taken and—

MR. DIECKMAN: Your Honor, I don’t think it can be stricken. I move for a mistrial and the jury be discharged.

MR. PEAK: On the grounds that it’s prejudicial?

MR. DIECKMAN: Yes.

MR. PEAK: I don’t understand on what grounds it is prejudicial.

MR. DIECKMAN: Whether or not the clothing was ever claimed has no probative value in this case at all.

THE COURT: Whether or not what, counsel?

MR. DIECKMAN: Whatever happened to his clothes or whether they claimed his coat, there is no probative value to come in here and show—

THE COURT: I am not going to rule on that comment. The Court is concerned, at this time, with the admissibility having evidence as to what happened, whether it is hearsay as far as this officer is concerned.

MR. PEAK: Yes, sir, I will ask him that question then. If it develops that it is hearsay I won’t pursue it any further.

THE COURT: We will take up the matter then.

(WHEREUPON, the following proceedings were had in the presence and HEARING OF THE JURY:)

Q. (By Mr. Peak) Detective, were you present when you said the parents came down, were you present at that time?

A. I was.

Q. When they were there?

A. I was.

Q. And at any rate it was turned over to them?

A. That’s correct.

(WHEREUPON, the following proceedings were had at the bench, in the presence but OUT OF THE HEARING OF THE JURY:)

MR. DIECKMAN: Your Honor, at this time I would move that the jury be discharged, mistrial declared, for the reason this is so prejudicial to this defendant that it can’t be overcome.

THE COURT: Well, let the record show the Court having considered the matter, defendant’s motions for a mistrial are by the Court overruled.

7 . In whatever respect State v. White, 494 S.W.2d 687 (Mo.App. 1973) and In re K.W.B., 500 S.W.2d 275 (Mo.App. 1973), cited by mov-ant, suggest a test for the admissibility of juvenile confessions other than “the totality of the circumstances standard” reenunciated herein, those cases are not to be followed.

8 . For the same reasons it is apparent (though not an issue here) that the failure of Rone’s trial counsel to object to the admission of Rone’s confession for the reason that § 211.131, RSMo 1969 might have been violated, did not constitute ineffective assistance of trial counsel.