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Name: Right to Counsel

The Court of Appeal found that appellant’s trial counsel performed ineffectively by not seeking a ruling on mental health diversion based on appellant’s alcoholism, and then failing to file a later petition focused on that mental disorder after stating an intent to do so. Although counsel’s initial failure to seek a ruling was potentially tactical given counsel’s stated intent to file a later petition, there is no tactical reason for failing to file that second petition during the four months between the mental health diversion hearing and appellant’s plea. There is a reasonable probability the trial court would have found appellant suitable for diversion had counsel sought a ruling based on his alcoholism.

The Court of Appeal further rejected the Attorney General’s argument that appellant provided insufficient notice to the prosecution that he was seeking mental health diversion in part based on his alcoholism. First, his petition included an expert’s opinion that his alcoholism was a factor in his conduct and stated he required assessment and treatment. Second, a second expert specifically diagnosed defendant with alcoholism the day after the incident. Finally, the prosecution questioned both experts about appellant’s alcoholism during the hearing.

The judgment was conditionally reversed to give appellant the option to withdraw his plea and seek mental health diversion for alcoholism.