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Richey v. State3/1/2002
laim which was argued at trial and is consequently barred by Rule 32.2(a)(2). The remaining claims in contained in Issues I, II, III, IV, VI, VIII, and IX are precluded by Rules 32.2(a)(3) and (5).
In Issue V, Richey raises seven ineffective-assistance-of-counsel claims. Claims 3 and 4 are raised for the first time on appeal and are not properly before this Court. Lawhorn v. State, 756 So. 2d 971 (Ala. Crim. App. 1999). The remaining claims must satisfy the two-pronged test outlined in Strickland v. Washington, 466 U.S. 668,(1984), in order for her to prevail on her claims of ineffective assistance of counsel. Williams v. State, 480 So. 2d 1265 (Ala. Crim. App. 1985). The Strickland test requires the appellant to prove not only that counsel's performance was deficient, but that the deficiency prejudiced the appellant. This Court indulges a strong presumption that trial counsel's representation was sufficient and that he did provide the appellant with effective assistance of counsel. Hallford v. State, 629 So. 2d 6 (Ala. Crim. App. 1992).
Claims 2, 5, and 6 allege that trial counsel was ineffective for his failure to interview witnesses, examine evidence, and communicate with Richey. These claims against counsel are no more than bare allegations that his representation was deficient. Richey has offered no facts to support these three claims, and she is not entitled to post-conviction relief on these grounds.
Claim 7 argues that trial counsel's failure to request jury instructions on the lesser-included offenses which are encompassed by the crime of murder constituted ineffective assistance of counsel. The record on direct appeal reveals, however, that the trial court thoroughly instructed the jury on the offenses of manslaughter, criminally negligent homicide, and vehicular homicide, as well as on the offense of murder. Because the trial court did instruct the jury on the lesser-included offenses, Richey cannot argue that trial counsel's failure to request such an instruction was an error which frustrated her defense at trial.
However, Richey's claim that counsel was ineffective for failing to preserve for appellate review the issue of the trial court's admission of evidence of the events of the night prior to the accident is meritorious on its face. The trial court must be afforded the first opportunity to determine whether an appellant was denied effective assistance of counsel. Because the trial court's order did not make findings as to this issue, we remand this matter to the Lauderdale Circuit Court for that court to conduct further proceedings, if necessary, and to make findings as to this claim. Due return shall be made to this court within 60 days of the date of this opinion.
REMANDED WITH DIRECTIONS.
Cobb, Baschab, Shaw, and Wise, JJ., concur.
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