of a violent offense but convicted on second degree burglary, which required a finding that thedefendant was armed. Prejudice found because the jury was not instructed to specify the degree ofburglary found or that a general verdict had the effect of finding petitioner guilty of the offensecharged in the indictment.Patrick v. State, 349 S.C. 203, 562 S.E.2d 609 (2002). Counsel ineffective in burglary case forfailing to request mercy from jury. Under state law at the time, jury in burglary case could find guilty(which meant, at the time, a mandatory life sentence) or guilty with a recommendation of mercy(which allowed judge to give a lesser sentence of as little as five years). Per se prejudicial.5Belcher v. State, 93 S.W.3d 593 (Tex. App. 2002). Counsel was ineffective for failing to alert thetrial court of an error in the court’s calculation of the deadline for ruling on a motion for new trial.The defendant moved for a new trial alleging among other things that a juror was improperly seatedbecause the juror had lied during voir dire. During the motion for new trial hearing the courtexpressed concern over the issue and twice referred to its deadline for ruling on the motion for newtrial. The court’s calculation was incorrect but counsel did not correct the court. Under Texas law,if the trial court does not rule on the motion for new trial within 75 days after the sentence isimposed the motion for new trial is denied by operation of law. Here the trial court entered an ordertwo days late granting the defendants new trail motion. Counsel’s conduct was deficient in failingto advise the trial court of the proper deadline. The court presumed prejudice because defensecounsel’s silence was tantamount to the actual or constructive denial of counsel at a critical stage of
*Capital CaseMISCELLANEOUS184the proceedings. The court also found that the defendant had established prejudice because the trialcourt’s entry of the late order clearly indicated that absent counsel’s error the motion for new trialwould have been granted. The court remanded to the trial court for a new hearing on the motion fora new trial. 2001:Owens v. State, 750 N.E.2d 403 (Ind. Ct. App. 2001). Trial and appellate counsel ineffective inburglary, robbery, and criminal confinement case for failing to object to the trial judge’s failure tomaintain the role of neutral and passive arbitrator. After both parties rested in a bench trial, the trialcourt questioned witnesses and requested that the parties conduct additional discovery. Two weekslater when they returned to court, the trial judge heard inadmissible hearsay from both a policeofficer, who was recalled, and the prosecutor, who was not even a witness, and heard evidenceimpeaching the defendant’s alibi testimony. Prejudice found because when the parties rested, thejudge was not convinced of guilt beyond a reasonable doubt and, thus, requested the additionalevidence. Instead of ordering dismissal of the charges, however, the court only remanded for a newtrial.
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