Whitmore v. State

An ineffective assistance of appellate counsel claim requires the defendant to establish that deficient performance prejudiced the appeal.3 In this regard, if a legal issue “would in all probability have been found to be without merit” had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the merit-less issue does not make appellate counsel’s performance ineffective.4

Here the claimed deficiency involves an appeal of a sentence above the minimum and within the maximum. In sentencing *173within the law’s minimum and maximum, the discretion afforded is about as…