concurring and dissenting. I would not simply affirm or reverse the circuit judge on the issue of ineffectiveness of counsel, but I would remand for additional findings of fact and conclusions of law.
This Rule 37 appeal is fraught with confusion and unanswered questions on the ineffectiveness point. At the core of my dilemma is the fact that the State has filed a brief that abstracts testimony and includes Exhibit 56 in the Addendum, all of which shows that defense counsel was correct in not objecting to the prosecutor’s first-degree battery argument. Yet, the State in the argument part of its brief does not address this point but, rather, appears to agree with the circuit judge that defense counsel sat idly by while the prosecutor misinformed the jury of the battery conviction. Thus, we have a conflict in the State’s abstracted testimony and Addendum on the one hand and its failure to argue and develop the ineffectiveness issue on the other. Moreover, in light of Exhibit 56 and the abstracted testimony, the circuit judge appears to have erred in finding (1) that Fudge was not convicted of first-degree battery, and (2) that the prosecutor conceded this point at the Rule 37 hearing.
The overarching issue facing this court today is whether we can correct what appears to be an erroneous finding by the circuit judge which led to his ineffectiveness finding when the State has failed to address that issue on appeal. Stated differently, can this court reverse the circuit judge for a mistaken finding concerning attorney error, when the State in its brief appears to agree with the circuit judge? The dissents in this matter conclude that this court is bound by the State’s concession, even though that concession may well be in error. I disagree as I believe it is this court’s role to decide whether defense counsel was ineffective, not the Attorney General’s. Nevertheless, in order to resolve the conflict between the abstracted testimony and Exhibit 56 in the State’s brief and the circuit judge’s order, I would remand this matter for additional findings of fact and conclusions of law.
The conflict in this matter can be summarized as follows. From the abstracted testimony and Exhibit 56, it appears defense counsel was not ineffective. She reasonably believed Fudge had been convicted of first-degree battery, because she testified that he told her this was the case. Furthermore, according to State’s Exhibit 56, which consists of four pages, it appears that Fudge was, in fact, convicted of that offense, since he received an eight-year sentence for each count charged. One of the charges was first-degree battery. This was all made abundantly clear by the prosecutor who cross-examined defense counsel before the circuit judge at the Rule 37 hearing.
What has caused the problem in this case is that the circuit judge who sat on the Rule 37 matter found in his Amended Order granting resentencing that “the State concedes that the first-degree battery charged was reduced to robbery.” But, again, that concession by the prosecutor is contradicted by the abstracted testimony and Exhibit 56. In fact, the prosecutor at the Rule 37 hearing took pains to emphasize that Fudge was convicted of first-degree battery. Accordingly, the judge’s finding in his order appears to be in error.
The second problem in this case is that the State in its brief picks up on the circuit judge’s finding and agrees that the jury was misinformed by the first-degree-battery argument at the original trial. This “misinformation” by the prosecutor apparently led the State to deemphasize ineffectiveness of counsel as an argument on appeal. Thus, the State leaps over the ineffectiveness prong of the Strickland test and concentrates only on whether Fudge was prejudiced by defense counsel’s failure to object to the first-degree-battery reference.
Because this court is operating largely in the dark as to why there is this clear conflict between the abstracted testimony, Exhibit 56, and the circuit judge’s order, I would remand for additional findings by the circuit judge to enlighten us on this matter. This would be the wiser and more prudent course before we decide whether to affirm or reverse the circuit judge’s order.
Thus, I disagree with my fellow justices who dissent and who would simply affirm the circuit judge’s order without further clarification. They argue that this court is bound by the State’s failure to argue the ineffectiveness point. I disagree. Whether defense counsel was ineffective is a judicial determination and one of the ultimate issues to be decided by this court. An erroneous concession of that point by the State simply does not decide the issue. State v. Knighten, 109 Wash. 2d 896, 748 P.2d 1118 (1988) (State’s erroneous concession of no probable cause to arrest did not bind the Washington Supreme Court).
I also disagree with those who would simply reverse the circuit judge because it seems clear to me that this court does not have all the pieces of the puzzle. Only the circuit judge, by making additional findings, can shed light on this dilemma. Once done, this court can then render its decision with a full awareness of the facts. This court has remanded Rule 37 matters in the past for additional findings of fact. See, e.g., Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004) (court will remand death case under Rule 37.5 when trial court fails to make sufficient findings of fact and conclusions of law). This case cries out for such a remedy.
I also disagree with Justice Gunter’s opinion on the prejudice prong but concur with his opinion in ah other respects.