Ken v. State, 2011 WY 167

Varo Ken was convicted by a jury of attempted first degree murder and aggravated assault.
Ken challenged trial counsel's effectiveness, including failure to timely file post-trial motions.
District court held counsel's failure to timely file a new-trial motion was prejudicial and would have yielded a new trial.
Wyoming Supreme Court remanded for an evidentiary hearing on ineffective assistance.
On remand, the district court found deficient performance for failure to timely file a new-trial motion and prejudice; the court otherwise found sufficient evidence to support the murder conviction.
Superseding issue on appeal was ineffective assistance; the court ultimately reversed the conviction for attempted first degree murder and remanded for a new trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial counsel was ineffective	Ken	State	Yes; counsel deficient and prejudicial
Whether the evidence supported attempted first degree murder	Ken	State	Yes; sufficient evidence to sustain conviction remains valid pending new trial
Remand and procedural posture	Ken	State	Remand proper; new-trial relief granted on the charge
Standards for ineffective assistance on appeal	Ken	State	De novo review; apply Strickland prongs; prejudice established by remand findings

Tanner v. State, 57 P.3d 1242 (Wy. 2002) (double jeopardy and weight of evidence considerations)
Burks v. United States, 437 U.S. 1 (U.S. 1978) (standard for insufficiency and judgments of acquittal)
Daves v. State, 249 P.3d 250 (Wy. 2011) (standards for sufficiency review)
Hilliard, 392 F.3d 981 (8th Cir. 2004) (deficient performance for untimely post-trial motion; prejudice analysis)
Mattern v. State, 151 P.3d 1116 (Wy. 2007) (premeditation standard for attempted murder; Mattern three-category test)
Crandell v. People, 760 P.2d 423 (Cal. 1988) (preconception design and motive guidance for premeditation analysis)
People v. Crandell, 46 Cal.3d 833 (Cal. 1988) (premeditation and deliberation framework used by Mattern)