The issue in this case is whether the Court of Appeals erred by holding that the failure to seek recusal of the trial judge was ineffective assistance of counsel. The majority's opinion, however, fails to address this issue and instead concludes that the Court of Appeals erred by addressing the merits of a claim that was raised for the first time on direct appeal. The State doesn't ask us to say that the Court of Appeals erred in addressing this point, only that it was wrong in holding that it was per se ineffective assistance of counsel to fail to seek recusal. In fact, in its brief, the State presents interesting arguments concerning whether this type of error could be per se ineffective assistance of counsel. As indicated by both the opinion of the Court of Appeals and the dissenting opinion by Justice Hill, this case was well briefed and could properly be answered on direct appeal. Additionally, Judge Price's dissenting opinion actually addresses the ground for review brought by the State. Why don't we just improvidently grant this case if we are not going to answer the question that was asked? Because the majority resolves this case without considering the ground for review which was granted by this Court, I respectfully dissent.
Filed: November 5, 2003