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Matter of Appeal in Maricopa County6/18/1996
ient as measured by reasonable professional standards.
2. Prejudice:
It is clear from the record that the result here might have differed had the attorney presented the second psychological evaluation and called the doctor as a witness. The Judge specifically expressed her dissatisfaction with the evaluation presented by the court-appointed psychologist, saying that she "didn't find the psychological very helpful" and that she "didn't think it really fleshed out the psychological issues." Record of Transcript, May 23, 1995, page 29. These comments, together with her statement on the record that she "very easily could go either way on this case," id., strongly indicate that the second psychological evaluation -- with its greater detail -- could have caused the Judge to have reached a different decision regarding transfer.
Furthermore, the Judge made these comments after her finding of probable cause but before she entered a decision on the transfer issue, which is the time set under Rule 14.1(a) for making a transfer deferral decision. Her comments should have indicated to the attorney that she might have been willing to have heard and considered arguments relating to alternatives to transfer. This is particularly true in light of the juvenile's first offense status, positive attitude, support resources, age, employment and educational stability.
Even without the second psychological evaluation, the Judge was aware of the foregoing circumstances, and the record reflects that these considerations weighed heavily in the juvenile's favor. Had the attorney taken the opportunity presented by the Judge's comments to actively promote the juvenile's placement in the transfer deferral program, he might have swayed her decision against transfer and toward alternatives to transfer, particularly where coupled with an effective presentation of the second evaluation. His failure to even attempt to do either leads us to conclude that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
Conclusion
We therefore hold that the juvenile did not receive constitutionally effective assistance of counsel in the transfer hearing, and we reverse and remand for proceedings consistent with this opinion.
Cecil B. Patterson, Jr., Judge
Concurring
Sarah D. Grant, Presiding Judge
Sheldon H. Weisberg, Judge
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