Catholic University Law Review


Jacob Szewczyk


In the 1984 case of Strickland v. Washington, the Supreme Court announced a two-pronged test to analyze whether a criminal defendant has received ineffective assistance of counsel. Since the rule was announced, the Court has expanded Strickland’s scope to apply to analyze counsel’s review at different stages of the criminal proceeding. This Comment addresses one issue that has remained unanswered by the Supreme Court: whether counsel’s failure to file a notice of appeal, after a defendant has waived his right to appeal through a plea bargain, constitutes ineffective assistance of counsel. This Comment discusses the circuit split that has developed around this issue; one where the majority opinion is such action does constitute ineffective assistance. The Comment argues that the majority approach is correct, based on fundamental constitutional rights, traditional notions of counsel’s role as the accused’s advocate, and who bears the ultimate burden. Finally, this Comment recommends a process to help courts protect this fundamental right without sacrificing judicial efficiency.