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Barry v. State - 675 P.2d 1292 (Alaska Ct. App. 1984)

Rule:

Claims of ineffective assistance of counsel cannot be effectively reviewed for the first time on appeal.

Facts:

Defendant Shawn Barry was found guilty of kidnapping and sexual assault in the first degree after trial in Alaska state court. Barry received concurrent terms of 20 years for kidnapping and 20 years with five years suspended for sexual assault. On appeal for his conviction and sentence, he argued that his trial counsel provided him ineffective assistance: (1) in permitting him to waive a jury trial and to proceed before Judge Van Hoomissen, and; (2) in her general handling of the trial. Finally, Barry argued that his sentence for sexual assault was excessive. In addition, Barry argued that under the peculiar facts of his case, sexual assault in the first degree was a lesser-included offense of kidnapping, barring separate sentences. 

Issue:

Were Barry's conviction and sentence proper?

Answer:

Yes.

Conclusion:

The state supreme court affirmed the judgment and sentences of the trial court. The court noted that the separate sentences for kidnapping and sexual assault were a matter of legislative intent, and as the affirmative defense offered by Barry had no application to the facts of his case, the issue of separate sentences was dismissed. The court further found that the trial court had correctly considered both offenses together when it imposed the concurrent sentences. Concerning defendant's claim of ineffective assistance of counsel, the court found that the record was inadequate to determine whether trial counsel was ineffective. The court announced a new rule, effective following its opinion, that it would not entertain ineffective assistance of counsel claims unless a defendant had first moved for a new trial or sought post-conviction relief, supported by affidavits. The court remanded the case to the trial court for further proceedings regarding defendant's claim of ineffective assistance of counsel.

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