IN THE SUPREME COURT OF IOWA

No. 13–0446

Filed January 2, 2015

Amended March 13, 2015

STATE OF IOWA,

Appellee,

vs.

CURTIS VANCE HALVERSON,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Des Moines County, 

Michael J. Schilling, Judge.

Defendant seeks further review of a court of appeals decision 

affirming his conviction and finding defendant’s trial counsel was not 

ineffective for failing to challenge the sufficiency of the evidence to 

convict the defendant of possession of contraband at a residential

facility. DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT JUDGMENT REVERSED AND CASE REMANDED WITH 

INSTRUCTIONS.

Thomas A. Hurd of Glazebrook, Moe, Johnston & Hurd LLP, 

Des Moines, for appellant.

Thomas J. Miller, Attorney General, Darrel Mullins, Assistant 

Attorney General, Patrick C. Jackson, County Attorney, and Tyron 

Rogers, Assistant County Attorney, for appellee.
2

APPEL, Justice.

In this case, we consider an ineffective-assistance-of-counsel claim 

in which defense counsel failed to challenge the sufficiency of the 

evidence to convict the defendant of possession of marijuana at a 

residential facility under Iowa Code section 719.7(3)(c) (2011). In order to 

commit the charged offense, the defendant must be held in an 

“institution under the management of the [Iowa] department of 

corrections [(IDOC)]”. Id. In this case, the defendant was being held at 

the Burlington Residential Correctional Facility (residential facility) at the 

time of the events giving rise to the charge. After receipt of the State’s 

testimony, defense counsel made a motion for directed verdict based on 

the State’s failure to make a prima facie case,1 but specifically failed to 

argue the evidence was insufficient to establish that the facility was an 

institution under the management of the department of corrections. The 

court denied the motion for directed verdict and the defendant was 

convicted of the underlying charge.

On appeal, the defendant claims his trial counsel was ineffective 

for specifically failing to assert there was insufficient evidence to support 

the charge because the residential facility was not under the 

management of the department of corrections. The court of appeals 

affirmed the judgment. We granted further review. For the reasons 

stated below, we conclude the statutory argument was a claim “worth 

making” under our caselaw, that counsel was ineffective for failing to 

assert it, and that had the claim been timely asserted, the defendant 

would have been acquitted of the underlying charge. As a result, the 

1Defense counsel later recast its motion for directed verdict on this count as a 

motion for judgment of acquittal, which was overruled.

 
3

decision of the court of appeals is vacated, the judgment of the district 

court is reversed, and the case remanded with instructions to dismiss 

the charge.

I. Factual and Procedural Background.

Curtis Halverson was in the custody of the residential facility—

commonly referred to as a halfway house—when officials detected the 

smell of marijuana arising from a room to which he was assigned. 

Residential officers searched the room and discovered a partially smoked 

marijuana cigarette. After obtaining other incriminating evidence, 

Halverson was charged with knowingly possessing marijuana on the 

grounds of a facility “under the management of the department of 

corrections” in violation of Iowa Code sections 719.7(1)(a), 719.7(3)(c),

and 719.7(4)(b), a class “D” felony.2

Halverson pled not guilty and the matter proceeded to jury trial. 

At trial, the State called three witnesses. The State’s witnesses testified 

that the residential facility was a halfway house in which Halverson was 

a resident, that the residential facility functioned “under the policies of 

the Department of Corrections,” and that staff received a two-week 

training course on their job duties “in association with or through the 

Department of Corrections.” After receipt of the testimony, defense 

counsel made a conclusory motion for a directed verdict, but failed to 

argue the evidence was insufficient to establish that the residential 

facility was an institution under the management of the department of 

corrections.

2Halverson was also charged with knowingly possessing an incendiary device on 

the grounds of a facility under the management of the department of corrections in 

violation of Iowa Code sections 719.7(1)(b), 719.7(3)(c), and 719.7(4)(a). This charge was 

dismissed when the trial court granted Halverson’s motion for judgment of acquittal on 

this count.

 
4

The court instructed the jury that in order to convict the defendant

it must find that “The Burlington Residential Correctional Facility is a 

correctional institution or an institution under the management of the 

Department of Corrections.” The jury convicted Halverson. The court of 

appeals affirmed the conviction, and we granted further review.

II. Standard of Review.

Ineffective-assistance-of-counsel claims are reviewed de novo. 

State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992). Although at trial

Halverson’s counsel moved to dismiss the State’s case for insufficient 

evidence, he failed to specifically assert that the State failed to show the 

residential facility was under the management of the department of 

corrections. See Iowa Code § 719.7(3)(c). As a result, the claim was not 

preserved; however, our ordinary preservation rules do not apply to 

claims of ineffective assistance of counsel. See State v. Ondayog, 722 

N.W.2d 778, 784 (Iowa 2006). As a result, Halverson may raise his claim 

for the first time on appeal. Id.

In his brief on appeal, Halverson does not specify whether he is 

proceeding under the Sixth Amendment to the United States 

Constitution or article I, section 10 of the Iowa Constitution. Where 

there are parallel provisions in the Federal and State Constitutions and a 

party does not indicate the specific constitutional basis under which the 

party is proceeding, we regard both federal and state constitutional 

claims as preserved. See King v. State, 797 N.W.2d 565, 571 (Iowa 

2011). 

The United States Supreme Court has said that under the Sixth 

Amendment, in order to show ineffective assistance a defendant must 

prove by a preponderance of the evidence that the attorney failed to 

perform an essential duty and to the extent it denied the defendant a fair 
5

trial, prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Although some 

state courts have not utilized the Strickland test, the defendant does not 

suggest ineffective-assistance-of-counsel claims should be reviewed 

under the Iowa Constitution in a fashion different from its federal 

counterpart. For purposes of this case, we therefore apply the Strickland

standard. See King, 797 N.W.2d at 571 (applying Strickland test when 

counsel did not indicate whether case was being brought under the Iowa 

or Federal Constitution); State v. Wilkes, 756 N.W.2d 838, 842 n.1 (Iowa 

2008) (interpreting Iowa and Federal Constitutions identically, and 

noting no argument was made that the Iowa Constitution should be 

interpreted differently than the Federal Constitution in search and 

seizure cases). Even in such cases, however, “we reserve the right to 

apply the principles differently under the state constitution compared to 

its federal counterpart.” King, 797 N.W.2d at 571; see, e.g., State v.

Bruegger, 773 N.W.2d 862, 883 (Iowa 2009); Wilkes, 756 N.W.2d at 842 

n.1. 

III. Discussion.

A. Introduction. In this ineffective-assistance-of-counsel case, 

we begin by considering if the claim would have been meritorious had it 

been raised by trial counsel. Counsel, of course, does not provide 

ineffective assistance if the underlying claim is meritless. See State v. 

Brubaker, 805 N.W.2d 164, 171 (Iowa 2011). If, however, an underlying 

claim has merit, we must determine whether the failure to make the 

claim amounted to a breach of duty and whether the defendant was 

prejudiced by the breach. See Strickland, 466 U.S. at 687, 104 S. Ct. at 

2064, 80 L. Ed. 2d at 693.
6

B. Merits of the Underlying Claim. In order to answer the 

question of whether Halverson’s trial counsel was ineffective, we first 

consider whether the unasserted grounds for dismissal would have been 

meritorious. In order to address this question, we review various 

provisions of Iowa Code chapters 904 and 905. Iowa Code chapter 904 

outlines the powers and responsibilities of the IDOC, while Iowa Code 

chapter 905 structures the community-based correctional program. See

Iowa Code chs. 904–05. We then examine other sections of the Code that 

shed light on the proper meaning of the phrase “under the management

of the [IDOC].” 

At the outset, Iowa Code section 904.102 lists the institutions in

which the IDOC is “responsible for the control, treatment, and 

rehabilitation of offenders.” The list includes nine state institutions, 

“[r]ehabilitation camps,” and “[o]ther institutions related to an institution 

in subsections 1 through 10 but not attached to the campus of the main 

institution.” Id. The residential facility is not specifically named in the 

list, and there was no evidence offered at trial to suggest that it is an 

institution related to one of the listed facilities. As we have repeatedly 

stated, we do not extend, enlarge, or otherwise change the meaning of a 

statute under the guise of construction. See, e.g., State v. Tarbox, 739 

N.W.2d 850, 853 (Iowa 2007); Auen v. Alcoholic Beverages Div., 679

N.W.2d 586, 590 (Iowa 2004); State v. Wedelstedt, 213 N.W.2d 652, 656 

(Iowa 1973). Though the terms “management” and “control” are not 

identical, the lack of inclusion of community-based correctional

programs like the residential facility in this Code section points in the 

direction of a conclusion that the residential facility is not managed by 

the IDOC.
7

The Iowa Code does, however, provide that the IDOC has certain 

powers related to community-based corrections programs. The IDOC

“has primary responsibility” for the “development, funding, and 

monitoring of community-based corrections programs.” Iowa Code 

§ 7E.5(1)(n). The IDOC is also responsible for “[a]ccreditation and 

funding of community-based corrections programs. . . .” Id.

§ 904.103(1); id. § 905.8 (The IDOC “shall provide for the allocation 

among judicial districts in the state of state funds appropriated for the 

establishment, operation, support, and evaluation of community-based 

correctional programs and services.”). The IDOC is directed to “provide 

assistance and support to the respective judicial districts” and to 

“establish[] guidelines” related to residential treatment centers and

community-based correctional programs. Id. § 905.7. The director of the 

IDOC is required to “[e]stablish and maintain a program to oversee . . . 

community corrections programs and to provide community support to 

ensure continuity and consistency of programs.” Id. § 904.108(1)(c). 

These provisions suggest oversight, but not day-to-day management in 

any operational sense in the activities of institutions such as the 

residential facility in this case. 

In addition, the IDOC has the power under certain circumstances 

to “assume responsibility for administration of the district’s communitybased correctional program on an interim basis.” Id. § 905.9. Such an 

assumption of responsibility, however, occurs only after the IDOC

completes a review of the district community-based correctional program, 

submits the report in writing to the district board, requests a response 

for any statutory or guideline violations found in the report (and if a 

response is not received within sixty days, it may conduct a public 

hearing on the matter), and determines that the community-based 
8

correctional program will not be expeditiously brought into compliance 

with applicable statutes and guidelines. Id. Plainly, under this 

provision, the IDOC can assume responsibility for the administration of 

the community-based correctional program, but this is an extraordinary 

step reserved for rare occasions of substantial noncompliance by the 

judicial district with IDOC policies and guidelines. 

We now turn to Iowa Code chapter 905 related to communitybased correctional programs. A public agency is established for each 

judicial district, which is directed “to provide a community-based 

correctional program which meets the needs of that judicial district.” Id.

§ 905.2; see also id. § 669.2(5) (defining a district department as a state 

agency under the Iowa Tort Claims Act). The Code establishes a board of 

directors for each district department. Id. § 905.3. Among other duties, 

the board of each judicial district department is required to “[a]dopt 

bylaws and rules for the conduct of its own business and for the 

government of the district department’s community-based correctional 

program.” Id. § 905.4(1). While the IDOC establishes general policies 

and guidelines for community-based correctional programs, the judicial 

district’s board of directors establishes the bylaws and rules for day-today operation. 

The board of directors is further required to employ a director. Id.

§ 905.4(2). The duties of the director of the judicial district department 

are provided in Iowa Code section 905.6, which provides among other 

things, that the director “shall . . . [m]anage the district department’s 

community-based correctional program, in accordance with the policies 

of the district board and the Iowa department of corrections.” Id.

§ 905.6(2) (emphasis added). To the extent the term “management” in 

Iowa Code section 719.7(3)(c) might be ambiguous, it is clear the 
9

legislature believed the director of the judicial department, and not the 

IDOC, has the duty to “manage” each community-based correctional 

program. See Auen, 679 N.W.2d at 590 (“Absent a statutory definition or 

an established meaning in the law, words in the statute are given their 

ordinary and common meaning by considering the context within which 

they are used.”). 

There is no question the IDOC establishes policies and guidelines 

that are applicable to community-based corrections and participates in 

activities related to the funding of the facilities. The supervision of the 

community-based correctional programs may be highly regulated by the

IDOC, but management of each residential facility is left to the judicial 

district director unless the IDOC follows the elaborate procedures set out 

in Iowa Code section 905.9 and “assume[s] responsibility for 

administration of the district’s community-based correctional program on 

an interim basis.”

The conclusion that each district department is responsible for the 

management of its community-based correctional program is further 

evidenced by criminal provisions of the Code. For example, Iowa Code 

section 708.3A(5)(a) establishes the crime of assault on correctional staff. 

In the definition section, “correctional staff” includes “a communitybased correctional facility, or an institution under the management of the 

Iowa department of corrections.” Id. We assume, of course, the language 

used in a statute is not redundant. See State v. Allen, 708 N.W.2d 361, 

366 (Iowa 2006); T & K Roofing Co. v. Iowa Dep’t of Educ., 593 N.W.2d 

159, 163 (Iowa 1999) (noting use of disjunctive “or” connotes separate 

meanings). Thus, the inclusion of the phrase “a community-based 

correctional facility” is not mere surplusage, but is included in the 

statute to ensure coverage that would not otherwise result if only the 
10

phrase “institution under the management of the Iowa department of 

corrections” was utilized.

Similarly, under Iowa Code section 719.4(3), unauthorized absence 

is a serious misdemeanor for a person who has been committed to “an 

institution under the control of the Iowa department of corrections, to a 

community-based correctional facility, or to a jail or correctional 

institution.” While the language is not precisely parallel to our present 

case, the Code section uses the disjunctive “or” and recognizes a 

distinction between facilities under the control of the IDOC and a 

community-based correctional facility. See id. And, as our cases have 

stated, we strive to interpret a statute “ ‘consistently with other statutes 

concerning the same or a related subject.’ ” State v. Nicoletto, 845 

N.W.2d 421, 427 (Iowa 2014) (quoting State v. Pickett, 671 N.W.2d 866, 

870 (Iowa 2003)). 

Finally, we note the general rule of construction that criminal 

statutes should be construed narrowly. See, e.g., State v. Romer, 832 

N.W.2d 169, 176 (Iowa 2013) (“[W]e strictly construe criminal statutes 

and resolve doubts in favor of the accused.” (Internal quotation marks 

omitted.)); State v. Muhlenbruch, 728 N.W.2d 212, 216 (Iowa 2007)

(same); Allen, 708 N.W.2d at 366 (same). To the extent there is an 

unresolved ambiguity, our cases require a narrow construction of the 

statute. See State v. Hearn, 797 N.W.2d 577, 585 (Iowa 2011). 

Based on the above rules of construction and analysis, we 

conclude the residential facility is not under the management of the 

department of corrections unless the IDOC takes over the operation of 

the program pursuant to Iowa Code section 905.9. In this case, however, 

the State offered no evidence that such a takeover occurred. As a result, 

if counsel had specifically asserted in his motion of acquittal that there 
11

was insufficient evidence to show the residential facility was under the 

management of the department of corrections, the defendant would have 

been entitled to dismissal of the charge.

C. Ineffective Assistance. We now turn to the question of 

whether counsel failed to perform an essential duty and whether 

prejudice resulted. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 

80 L. Ed. 2d at 693; State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005). We 

think each element is satisfied here under both the State and Federal 

Constitutions. First, we conclude counsel failed to perform an essential 

duty. Two cases are illustrative. First, in Allen, we found trial counsel 

ineffective when he allowed a client to plead guilty to a drug-related 

crime when there was no factual basis for the required element that the 

facility be a “detention facility.” 708 N.W.2d at 363, 369. Additionally, in 

State v. Mitchell, we noted that a county jail was not a correctional 

institution for purposes of a criminal statute. 650 N.W.2d 619, 620–21 

(Iowa 2002). As in Allen and Mitchell, we think a general examination of 

the relevant Code provisions would have alerted a reasonable attorney to 

the potential issue. 

In sum, the question of whether the residential facility was under 

the management of the IDOC cannot be dismissed as “not worth 

making.” See State v. Graves, 668 N.W.2d 860, 883 (Iowa 2003). Once a 

lawyer undertakes representation, “ ‘a lawyer is obliged not to omit any 

essential lawful and ethical step in the defense.’ ” State v. Vance, 790

N.W.2d 775, 785 (Iowa 2010) (quoting ABA Standards for Criminal 

Justice: Prosecution Function and Defense Function 4-1.2, cmt., at 123 

(3d ed. 1993)). Reasonable preparation and study would have revealed to 

trial counsel the potential avenue to dismiss the charge. See id. at 786. 

Further, counsel should have known that in order to preserve a 
12

sufficiency-of-the-evidence claim, a specific objection must be lodged to 

alert the trial court to the nature of the challenge. See Brubaker, 805 

N.W.2d at 170.

We ordinarily preserve ineffective-assistance-of-counsel claims for 

postconviction relief proceedings. State v. Palmer, 791 N.W.2d 840, 850 

(Iowa 2010). In appropriate cases, however, we will consider the merits 

of ineffective-assistance claims on direct appeal as long as the record is 

adequate. Id. 

The record is adequate in this case. The failure of Halverson’s trial 

counsel to preserve the claim cannot be attributed to reasonable tactics 

or strategy. See Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001)

(noting tactical and strategic decisions of counsel must be made only

after thorough investigation of the law and facts). The State does not 

suggest the failure to specify the basis for dismissal was a strategic 

decision, and we can discern no basis for an argument that the decision 

not to specifically raise the issue was based on reasonable strategic or 

tactical considerations. See id.; see also Brubaker, 805 N.W.2d at 174. 

Further, we have previously held that claims of ineffective assistance for 

failure to challenge sufficiency of the evidence may be raised on direct 

appeal. See State v. Scalise, 660 N.W.2d 58, 62 (Iowa 2003) (allowing an 

ineffective-assistance claim on direct appeal when trial counsel was 

allegedly ineffective for failing to make clear the specific grounds for his 

motion for judgment of acquittal).

We also conclude Halverson has been prejudiced by the failure of 

his counsel to assert the claim. In order to show prejudice under 

Strickland, the defendant must show that “but for counsel’s 

unprofessional errors, the result of the proceeding would have been 

different.” 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. 
13

Here, had the defense been timely and specifically asserted, the trial 

court would have had no alternative but to dismiss the charge as pled in 

the trial information. See Brubaker, 805 N.W.2d at 174 (finding trial 

counsel was ineffective and had trial counsel made the proper objection 

regarding the sufficiency of evidence, the district court would have 

dismissed the charge). Although the State contends that hypothetically a 

district court might have allowed an amendment to conform to proof, the 

State concedes there is not an alternative under Iowa Code section 

719.7(3) that would apply to this case. 

IV. Conclusion.

For the above reasons, we conclude Halverson’s trial counsel was 

ineffective under the State and Federal Constitutions as a result of his 

failure to assert there was insufficient evidence to show the residential 

facility was an institution under the management of the department of 

corrections. Had such a claim been timely asserted, the charge against 

him would have been dismissed. We therefore conclude the decision of 

the court of appeals must be vacated, the judgment of the district court 

reversed, and the case remanded with instructions to dismiss the charge. 

DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT JUDGMENT REVERSED AND CASE REMANDED WITH 

INSTRUCTIONS.

All justices concur except Mansfield and Waterman, JJ., who 

concur specially.
14

#13–0446, State v. Halverson

MANSFIELD, Justice (concurring specially).

I join the court’s opinion except for part II. In part II, I have 

concerns that the court is laying the groundwork for adopting, sua 

sponte, a new doctrine of ineffective assistance of counsel under the Iowa 

Constitution. 

I am not joining part II for two reasons. First, our court should 

only be deciding the case before it, not planting a flag for possible future 

decisions. Second, I question the practice of changing longstanding 

constitutional interpretations sua sponte. Rather, changes to our 

precedent should occur only when we are given a framework, under 

adversarial briefing, for doing so. 

I begin with what the defendant argued in his brief and in his 

application for further review, quoted verbatim: 

To establish a claim of ineffective assistance of 

counsel, the Applicant has the burden to prove the following: 

(1) counsel failed in an essential duty and (2) prejudice 

resulted therefrom. Strickland v. Washington, 466 U.S. 668[, 

104 S. Ct. 2052, 80 L. Ed. 2d 674] (1984); State v. Greene, 

592 N.W.2d 24, 29 (Iowa 1999). In proving the first element, 

the Applicant faces the strong presumption the performance 

of counsel falls within a wide range of reasonable 

professional assistance. State v. Hepperle, 530 N.W.2d 735, 

739 (Iowa 1995). The Court will not second guess 

reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 

564 (Iowa 1995). The second element is satisfied if a 

reasonable probability exists that, but for counsel’s 

unprofessional errors, the result of the proceeding would 

have been different. Davis v. State, 520 N.W.2d 319, 321 

(Iowa Ct. App. 1994). 

Reading the foregoing, the majority concludes that the defendant 

“does not specify whether he is proceeding under the Sixth Amendment 

to the United States Constitution or article I, section 10 of the Iowa 

Constitution.” This statement is accurate so far as it goes. However, the 
15

defendant’s first citation is to Strickland, which is a very familiar 

precedent decided only under the United States Constitution. 466 U.S. at 

684–85, 104 S. Ct. at 2063, 80 L. Ed. 2d at 691–92. I would therefore 

conclude that the Federal Constitution is the asserted ground for 

reversal. 

The most one can say for the majority’s position is that the second 

of the four Iowa cases cited by the defendant—Hepperle—mentions the 

right to counsel under both Constitutions. 530 N.W.2d at 739. 

Therefore, if we do some detective work and read all the defendant’s 

authorities, we can find a reference to the state constitution in one of 

them. Yet, I do not believe that an appellant can preserve a separate 

ground for appeal without arguing or mentioning that ground, just 

because a court decision cited by the appellant refers to that ground. 

See Sanchez v. State, 692 N.W.2d 812, 820 (Iowa 2005) (holding class of 

undocumented immigrants waived their argument that denial of driver’s 

licenses violated the Iowa Constitution because they “fail[ed] to examine 

this claim in their brief and fail[ed] to address any specific application of 

the language of [the state constitution] to this case”). 

Regardless, the defendant has not urged that the right to counsel 

under the Iowa Constitution should be interpreted differently. To date, 

we have followed the Strickland standard under both the United States 

and the Iowa Constitutions. See State v. Clark, 814 N.W.2d 551, 567 

(Iowa 2012) (applying the two-prong Strickland test under both 

Constitutions); State v. Fountain, 786 N.W.2d 260, 265–66 (Iowa 2010) 

(same); State v. Ondayog, 722 N.W.2d 778, 784 (Iowa 2006) (same); 

Collins v. State, 588 N.W.2d 399, 401–02 (Iowa 1998) (same); State v. 

Kinkead, 570 N.W.2d 97, 103 (Iowa 1997) (same); Hepperle, 530 N.W.2d 
16

at 739 (same); State v. Munz, 355 N.W.2d 576, 584 (Iowa 1984) (same).3 

We should not retreat from these precedents when no one asks us to do 

so. 

Although the majority refers obliquely to other courts “not 

utiliz[ing] the Strickland test,” an important distinction should be made. 

These jurisdictions had pre-Strickland ineffective-assistance standards 

under their state constitutions that they simply kept after Strickland was 

decided.4 They did not follow Strickland for thirty years and then decide, 

one day, not to follow it. And certainly, I am aware of no court that has

gone its own way without being asked to do so.

If the unnecessary language in part II were omitted, I would not file 

this special concurrence and would join the court’s opinion in its 

entirety. The balance of the court’s opinion is very well-reasoned, and I 

agree with it. 

Waterman, J., joins this special concurrence.

3I have previously said that I believe our court’s view of what amounts to a 

failure to perform an essential duty under Strickland is “expansive.” See Rhoades v. 

State, 848 N.W.2d 22, 33–34 (2014) (Mansfield, J., concurring specially). But we have 

taken this expansive view while applying Strickland; we have never suggested that we 

are taking a different approach to ineffective assistance of counsel under the Iowa 

Constitution.

4See Wilson v. State, 711 P.2d 547, 549 (Alaska Ct. App. 1985) (retaining the 

standard set forth in Risher v. State, 523 P.2d 421, 425 (Alaska 1974)); State v. Smith, 

712 P.2d 496, 500 n.7 (Haw. 1986) (“The test for measuring ineffectiveness adopted by 

this court in State v. Antone, [615 P.2d 101, 104 (Haw. 1980),] is not that declared by 

the Supreme Court in Strickland . . . . But for purposes of judging claims of inadequate 

representation brought under article I, section 14 of the Hawaii Constitution, we shall 

continue to apply the standard enunciated in . . . Antone.”); People v. Claudio, 629 

N.E.2d 384, 385–86 (N.Y. 1993) (explaining how, prior to Strickland, the New York 

courts had developed “a somewhat different test for ineffective assistance of counsel 

under article I, § 6 of the New York Constitution” and applying that test); Stevens v. 

State, 902 P.2d 1137, 1141–42 (Or. 1995) (en banc) (clarifying that the pre-Strickland

state constitutional standard from Krummacher v. Gierloff, 627 P.2d 458, 468 (Or. 1981) 

(en banc), still applied after Strickland).