McCloud v. State , 2021 UT 14 ( 2021 )

2021 UT 14IN THE
SUPREME COURT OF THE STATE OF UTAH
LARRY MCCLOUD,
Appellant,
v.
STATE OF UTAH,
Appellee.
No. 20190300
Heard November 9, 2020
Filed May 20, 2021
On Certiorari to the Utah Court of Appeals
Fourth District, Provo
The Honorable Donald J. Eyre, Jr.
No. 070500212
Attorneys:
Brent A. Gold, Salt Lake City, and Andrew Parnes, Ketchum,
Idaho, for appellant
Sean D. Reyes, Att‘y Gen., Erin Riley, Asst. Att‘y Gen.,
Salt Lake City, for appellee
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE PEARCE, and JUSTICE PETERSEN joined.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶1 In 2001 Larry McCloud was convicted of repeatedly
sexually molesting his daughter. McCloud appealed and lost. He
then pursued post-conviction relief, claiming his trial counsel was
ineffective for refusing to consult or call at trial certain experts and
for failing to subpoena the victim‘s medical records. The reviewing
court determined that the Post-Conviction Remedies Act (PCRA),
MCCLOUD v. STATE
Opinion of the Court
UTAH CODE § 78B-9-101–110,1 barred McCloud‘s claims because
they ―could have been but [were] not raised at trial or on appeal.‖
Id. § 78B-9-106(1)(c). The court, however, allowed McCloud to
amend his petition to assert that his appellate counsel was
ineffective for failing to raise the same ineffectiveness claims on
direct appeal. In the end, the amendment was for naught; the court
found that because trial counsel was not ineffective, appellate
counsel could not have been ineffective—a clear byproduct of law
and logic.
¶2 On review, our court of appeals ruled that the PCRA
barred McCloud‘s claims because they ―could have been‖ brought
on appeal had McCloud made a rule 23B motion to supplement the
record. It also found that an appellate attorney will not be adjudged
deficient for omitting a claim on appeal unless that claim is
―obvious from the trial record‖ and that McCloud‘s claims were not
so obvious. Thus, the court of appeals reasoned, the PCRA barred
McCloud‘s ―direct‖ claims, and appellate counsel was de facto not
ineffective—leaving McCloud without a remedy.
¶3 Faced with this higgledy-piggledy outcome, the court of
appeals applied the common-law ―unusual circumstances‖
exception to reach McCloud‘s underlying ineffectiveness claims.
Again, for naught as the court of appeals, like the post-conviction
court before it, determined that since trial counsel was not
ineffective, appellate counsel could not have been ineffective.
¶4 We now take our turn at the wheel. We begin by
repudiating any ―obvious from the trial record‖ standard regarding
appellate counsel‘s obligation to raise certain issues on appeal. And
we explain that obligation is governed by the Strickland
reasonableness standard. See Strickland v. Washington, 466 U.S. 668(1984).
¶5 We go on to apply these principles to McCloud‘s claims.
We agree with the lower courts that the PCRA bars McCloud‘s
direct claims against his trial counsel. But we disagree with the
court of appeals‘ sua sponte application of the ―unusual
circumstances‖ exception. So, we analyze McCloud‘s claims
through the gateway of an ineffective assistance of appellate
__________________________________________________________
1 The legislature recently amended several relevant provisions
of the PCRA. See 2021 Utah Laws ch. 46 (H.B. 100). All citations
herein are to the statutory language in effect at the time of
McCloud‘s first (unamended) petition for post-conviction relief, as
recodified in 2008. See 2008 Utah Laws ch. 3 (H.B. 78).
2
Cite as: 2021 UT 14Opinion of the Court
counsel claim. At the end of the day, his claims fail because trial
counsel was not ineffective. Trial counsel did not perform
deficiently by refusing to consult or call experts, and his failure to
subpoena the victim‘s medical records did not prejudice McCloud.
Because McCloud‘s claims fail, we affirm the decision of the court
of appeals.
BACKGROUND
I. SUMMARY OF FACTS FROM TRIAL AND DIRECT
APPEAL
¶6 McCloud‘s daughter (―Victim‖) asserted that McCloud
sexually abused her multiple times when she was between five and
ten years old.2 According to Victim, these incidents occurred when
McCloud and Victim showered and slept together. Victim reported
the abuse years later, when she was sixteen.
¶7 The State charged McCloud with one count of aggravated
sexual abuse of a child and six counts of sodomy upon a child, all
first-degree felonies. The State‘s case against McCloud primarily
relied on Victim‘s testimony. ―At trial, she detailed the incidents of
abuse for each count and, for some counts, identified specific dates
on which the incidents occurred. The State did not present expert
testimony.‖ McCloud v. State, 2019 UT App 35, ¶ 5, 440 P.3d 775.
¶8 McCloud and his wife, Cindy McCloud (Victim‘s step-
mother), hired an experienced private defense attorney (―Trial
Counsel‖) to defend the case. At trial, Trial Counsel presented a
―factual‖ defense. He presented McCloud‘s calendars and notes
and a family home video in an attempt to discredit Victim‘s
memory and show that the alleged instances of abuse could not
have occurred on the alleged dates.3 He cross-examined Victim
__________________________________________________________
2 The record of the 2001 trial is not before us, so we rely on the
post-conviction record and the parties‘ briefs for the factual
background. ―Because this case comes before us after a jury verdict,
‗we recite the facts from the record in the light most favorable to the
jury‘s verdict and present conflicting evidence only as necessary to
understand issues raised on appeal.‘‖ Gregg v. State, 2012 UT 32,
¶ 2, 279 P.3d 396 (citation omitted). Although McCloud maintains
his assertion of innocence, the facts as stated are not challenged
here.
3 Presumably, Trial Counsel considered this type of defense
viable because McCloud spent limited time with Victim. Victim‘s
mother and McCloud separated when Victim was three years old.
(continued . . .)
3
MCCLOUD v. STATE
Opinion of the Court
about why she had not reported the abuse earlier, even though she
had told her mother and various therapists and psychologists about
showering with McCloud two years prior to reporting actual abuse.
Trial Counsel also elicited testimony about Victim‘s medical
history, including depression and a hospitalization from suicidal
feelings, and ―deteriorated relationships‖ between McCloud and
Victim and McCloud and Victim‘s mother, suggesting that alleging
the abuse was a way for Victim to ―get back at her father.‖
¶9 The jury convicted McCloud on the count of aggravated
sexual abuse of a child and three of the six counts of sodomy upon
a child.
¶10 McCloud appealed his conviction, hiring a different
private attorney (―Appellate Counsel‖) to represent him. McCloud
asserted a variety of claims, many of them tied to ineffective
assistance of Trial Counsel.4 The court of appeals affirmed
McCloud‘s conviction but reduced the count of aggravated sexual
abuse of a child to sexual abuse of a child due to a statute of
limitations issue. State v. McCloud, 2005 UT App 466, ¶¶ 1, 15, 126
P.3d 775.
II. McCLOUD‘s POST-CONVICTION PETITION
¶11 Assisted by new counsel, McCloud filed a petition for
post-conviction relief under the PCRA. He asserted, inter alia, that
Trial Counsel was ineffective for refusing to consult or call at trial
experts and failing to obtain all of Victim‘s medical records.
¶12 The State moved to dismiss the petition, arguing the
PCRA barred McCloud‘s claims because they ―could have been but
[were] not raised at trial or on appeal.‖ See UTAH CODE § 78B-9-
Victim‘s mother was awarded custody, and the alleged instances of
abuse occurred during McCloud‘s visitation time.
4 Specifically, McCloud raised on appeal the following issues:
―(1) Prosecution on Count One was barred by the statute of
limitations; (2) Prosecutorial misconduct required a new trial; (3)
Juror misconduct required a new trial; (4) Inadequate voir dire
required a new trial; (5) Improper jury instruction required a new
trial; (6) An improper reasonable doubt instruction required a new
trial.‖ McCloud did not raise issues (1), (2), (4), or (6) at trial. See
State v. McCloud, 2005 UT App 466, ¶¶ 5–10, 126 P.3d 775.
Therefore, he could only raise them on appeal by showing ―plain
error, ineffective assistance of counsel, or exceptional
circumstances.‖ Id. ¶¶ 6, 8, 10 (citation omitted).
4
Cite as: 2021 UT 14Opinion of the Court
106(1)(c). Historically, the State explained, claims of ineffective
assistance of counsel were generally exempt from the common-law
rule that any alleged trial errors must be raised on appeal. This
changed in 1992, the State argued, when rule 23B of the Utah Rules
of Appellate Procedure was adopted. Rule 23B allows a party in a
criminal appeal to move for a temporary, limited remand to the
trial court for additional fact-finding necessary to support a claim of
ineffective assistance of counsel. UTAH R. APP. P. 23B(a). Citing this
court‘s decision in State v. Litherland, 2000 UT 76, 12 P.3d 92, the
State claimed that ―[r]ule 23B negated the need to treat ineffective
assistance claims differently from any other claims of trial error.‖
¶13 Thus, the State categorically concluded that ―claims of
ineffective assistance against trial counsel that are not raised on
direct appeal are procedurally barred‖ by the PCRA because they
―could have been‖ developed through a rule 23B motion and raised
on direct appeal.
¶14 The State conceded that McCloud could assert Appellate
Counsel was ineffective for failing to raise the trial ineffectiveness
claims, but such a claim would fail under the Strickland standard of
ineffectiveness. See Strickland v. Washington, 466 U.S. 668 (1984).
¶15 McCloud responded with two relevant arguments. First,
McCloud argued the State‘s rule 23B argument was inconsistent
with established case law regarding appellate counsel‘s obligation
to raise certain claims on appeal. Under that case law, appellate
counsel will be found ineffective for omitting a claim only if that
claim is ―obvious from the trial record.‖ Lafferty v. State, 2007 UT 73,
¶ 39, 175 P.3d 530 (citation omitted). But if the claim is ―obvious
from the trial record,‖ McCloud reasoned, there would be no need
to make a rule 23B motion for additional fact-finding. Thus,
McCloud argued, ―it is precisely because claims of ineffective
assistance of counsel are often based on matters not contained in
the appellate record that [post-conviction petitions] are permitted,‖
regardless of rule 23B. Second, McCloud relied on Appellate
Counsel‘s advice that he could raise non-record issues on post-
conviction appeal. So, McCloud argued, either the State‘s
interpretation of rule 23B in the context of Litherland was incorrect,
or Appellate Counsel ―provided advice that was absolutely
incorrect.‖
¶16 The post-conviction court granted in part the State‘s
motion to dismiss. The court agreed with the State‘s analysis
regarding the intersection of rule 23B and the PCRA‘s procedural
bar. It held that, under Litherland, ―an ineffective assistance claim
5
MCCLOUD v. STATE
Opinion of the Court
should (and certainly could) be raised on appeal‖ by filing a rule
23B motion, and thus the PCRA barred McCloud‘s direct claims.
A. The Evidentiary Hearing
¶17 Still, the court allowed McCloud to amend his petition to
include a claim that Appellate Counsel was ineffective for failing to
raise the trial counsel ineffectiveness claims on direct appeal. After
McCloud did so, the court held an evidentiary hearing to develop
the record regarding McCloud‘s claim that Trial Counsel was
ineffective for refusing to consult experts. The McClouds, Trial
Counsel, and Appellate Counsel testified at the hearing.
¶18 The McClouds testified they had wanted to present a
―scientific‖ defense based on ―parental alienation syndrome.‖ This
defense would have utilized expert witnesses in the fields of child
memory and false memory, alongside a psychological profile of
McCloud, to convince the jury that Victim was fabricating the
allegations. McCloud testified that he frequently attempted to raise
with Trial Counsel the issue of utilizing experts.
¶19 Trial Counsel testified as to his pre-trial investigation, trial
preparation, and defense strategy. He said that he viewed the
matter as ―basically a he-said/she-said case with what [he] believed
was compelling evidence that would discredit the she-said aspect
of this case.‖ That evidence, he explained, was contained in
McCloud‘s day planners, calendar notes, and a ―videotape taken at
Christmas,‖ which showed that the alleged instances of abuse could
not have occurred on some of the alleged dates. He also planned to
highlight discrepancies in what Victim had reported to various
individuals prior to trial. Although he could not create a complete
alibi and Utah courts give children considerable leeway in recalling
specific dates, Trial Counsel felt that if he could discredit some of
Victim‘s allegations, ―the jury should not believe her about
anything.‖
¶20 Regarding the use of experts, Trial Counsel testified that
he had in the past used child memory and psychosexual profiling
experts. He also explained his general theory of usage of experts:
Scientifically, when you‘re dealing with, you know,
ballistics, fingerprints, DNA, experts are essential and
credible. When you‘re dealing with psychology,
psychological problems and things of that nature, I
think the issue is more clouded and less clear. I think
you have to evaluate the specific facts of your case,
the type of case you‘re dealing with, and make
6
Cite as: 2021 UT 14Opinion of the Court
judgments based upon what you believe is going to
be necessary.
Trial Counsel thought this case was ―more of . . . a factual
determination issue as opposed to a battle of experts.‖ He wanted
to present a ―specific defense‖ rather than take a ―shotgun
approach.‖ Ultimately, Trial Counsel did not consult prior to trial
or call at trial any expert witnesses. He later explained that while
expert consultation would not have been ―inconsistent with the
defense‖ presented, the ―downside‖ would have been ―the time
and the money that it would cost to consult with an expert and
develop that line of defense.‖5
¶21 Regarding the medical records, Trial Counsel testified he
did not subpoena Victim‘s medical records. Prior to trial, the State
provided Trial Counsel with some of Victim‘s medical and mental
health records. As a result, Trial Counsel ―believed [he] had all of
the records.‖
¶22 Appellate Counsel testified that, although McCloud
complained to her of Trial Counsel‘s failure to consult experts and
subpoena Victim‘s medical records, she did not raise those issues
on direct appeal. While she did not consider those claims to be
meritless, pursuing them would have required ―extra-record
investigation.‖ And she thought McCloud had ―a pretty good
appeal‖ on the issues ―contained in the record.‖ As such, she
advised McCloud that he could bring those claims later in a post-
conviction petition.
¶23 But concluding now that McCloud‘s claims were
procedurally barred, Appellate Counsel stated that she gave
McCloud ―bad legal advice.‖ She testified that she was still ―a little
bit fuzzy‖ on whether appellate counsel needed to file a rule 23B
motion to assist in bringing an ineffectiveness claim that was ―a
little bit apparent in the record.‖ She also stated that, in hindsight,
__________________________________________________________
5 Trial Counsel also testified that he saw an additional downside
to using experts in preparation for trial: ―If I have an expert who
gives me information that potentially is damaging to my client‘s
position and presentation, I think my effectiveness may well be
influenced by having that kind of information.‖ While this single
statement does not discount Trial Counsel‘s otherwise capable
representation, see infra Analysis part II, we generally do not advise
counsel to intentionally blind themselves to potential holes in their
arguments.
7
MCCLOUD v. STATE
Opinion of the Court
she ―should have hired an investigator and whatever experts to
assess whatever the issues are that he needed investigated.‖
¶24 McCloud also subpoenaed Victim‘s medical records to
develop the case record regarding his claim that Trial Counsel was
ineffective for failing to obtain those records. The post-conviction
court issued the subpoena, conducted an in-camera review of the
medical records, and provided to the parties one document: a
discharge summary of a meeting between Victim and a doctor three
weeks prior to Victim‘s first claims to law enforcement of the
alleged abuse. The document states, in relevant part,
[Victim] has been having flashbacks and nightmares
about previous sexual abuse by her biological father
that occurred between the ages of 6 and 8. At that
time it was discovered that he had been having the
patient shower with him and was washing her in the
shower. He also insisted on sleeping with her. The
patient does not remember him being inappropriate
sexually in other ways, and it is unclear whether this
was actually a case of molestation or a father with
extreme boundary problems.
B. The Post-Conviction Court’s Decision
¶25 After this additional discovery and oral arguments, the
post-conviction court denied McCloud‘s petition. The court first
addressed the experts issue. It found the State did not address how
the ―language in Rule 23B may affect the well-established standard
that the [omitted] claims must be obvious from the trial record‖ for
an ineffectiveness claim to succeed. Thus, even though Appellate
Counsel admitted that she had given McCloud bad legal advice and
should have further investigated his claims against Trial Counsel,
the court could not conclusively find her deficient for omitting
those claims because they were not ―obvious from the trial record.‖
¶26 Regardless of the sufficiency of Appellate Counsel‘s
performance, the post-conviction court found her performance did
not prejudice McCloud for two reasons. First, even if Appellate
Counsel had made a rule 23B motion to further develop the claims,
―there [was] no evidence that the appellate court would have
granted that motion.‖ Second, there was no prejudice because Trial
Counsel was not ineffective. The court found that ―Trial Counsel
did not perform deficiently—he made a strategic decision to focus
limited time on theories that he believed to be likely of success.‖
¶27 The post-conviction court eventually ruled on the medical
records issue after the court of appeals resolved an interlocutory
8
Cite as: 2021 UT 14Opinion of the Court
appeal filed by the State. The post-conviction court found that
Appellate Counsel performed deficiently by advising McCloud that
he could bring his ineffectiveness claims on post-conviction petition
and by failing to file a rule 23B motion to develop those claims. Still,
those failures did not prejudice McCloud. And although Trial
Counsel performed deficiently ―by failing to request all of the
Victim‘s relevant medical records,‖ ―he apparently knew of [the
relevant record‘s] contents and used that information in his
questioning and his argument.‖ Thus, the court found, Trial
Counsel‘s deficient performance did not prejudice McCloud;
―[l]ikewise, appellate counsel‘s deficiency therefore could not have
prejudiced Petitioner.‖
III. THE COURT OF APPEALS
¶28 McCloud appealed the denial of his post-conviction
petition. McCloud v. State, 2019 UT App 35, 440 P.3d 775. He raised
two issues. First, he argued that the post-conviction court erred in
finding that the PCRA barred his claims of trial counsel
ineffectiveness. Id. ¶ 2. Second, he argued that Trial Counsel was
ineffective. Id.
¶29 On the first issue, the court of appeals characterized the
case as ―concern[ing] the duty of appellate attorneys to investigate
claims of ineffective assistance of counsel that depend on facts
outside the trial record.‖ Id. ¶ 32. The court perceived the following
logical dilemma: Citing this court‘s interpretation of rule 23B in
State v. Litherland, 2000 UT 76, 12 P.3d 92, it concluded that
―appellate attorneys have a duty to investigate potential ineffective
assistance claims that are based on facts outside the record.‖
McCloud, 2019 UT App 35, ¶ 41 (citing Litherland, 2000 UT 76, ¶ 16).
―And if an ineffective assistance of counsel claim could have been
raised in a rule 23B motion, the general rule is that it will be barred
on post-conviction.‖ Id. Because Appellate Counsel ―could have‖
made a rule 23B motion to develop McCloud‘s claims against Trial
Counsel, the court reasoned, the PCRA barred those claims. Id.
¶ 46. McCloud could still bring those claims through the lens of an
appellate ineffectiveness claim, but under Utah case law, an
appellate attorney will be found deficient for omitting a claim only
if the claim is ―obvious from the trial record.‖ Id. ¶ 47 (citing Gregg
v. State, 2012 UT 32, ¶¶ 44–45, 279 P.3d 396). And here, the claims
were not ―obvious from the trial record,‖ so Appellate Counsel was
de facto not ineffective. See id. ¶¶ 47–49. The end result, the court
reasoned, is that ―[a] strict interpretation of [the PCRA‘s procedural
bar] . . . would foreclose any potential remedy for McCloud‘s
claims.‖ Id. ¶ 50. The court found this result ―an obvious injustice‖
9
MCCLOUD v. STATE
Opinion of the Court
and agreed with McCloud that ―it would place an undue burden on
appellate attorneys ‗to root out instances of trial counsel
ineffectiveness‘ to avoid a procedural bar on post-conviction.‖ Id.
(citation omitted).
¶30 The court of appeals then applied the common-law
―unusual circumstances‖ exception to the PCRA‘s procedural bar.
See id. ¶¶ 42, 46–51. Under this exception, the statute will not
preclude claims of ineffective assistance of trial counsel not raised
on direct appeal if there are ―unusual circumstances‖ justifying the
petitioner‘s failure to raise those claims, id. ¶ 42 (quoting Carter v.
Galetka, 2001 UT 96, ¶ 14, 44 P.3d 626), resulting in ―obvious
injustice or a substantial and prejudicial denial of a constitutional
right.‖ Id. (quoting Taylor v. State (Taylor II), 2007 UT 12, ¶ 122, 156
P.3d 739). The court then fashioned a new test for when claims of
ineffective assistance of trial counsel can be raised on post-
conviction petition under the ―unusual circumstances‖ exception:
[C]laims that could have been raised in a rule 23B
motion will not be barred on post-conviction when, as
here, the record on appeal did not indicate a
reasonable probability that developing those claims
would have resulted in reversal. In such cases,
because the record would not lead a reasonable,
competent attorney to develop the claims on appeal, a
petitioner may pursue them in a petition for post-
conviction relief.
Id. ¶ 51.
¶31 With the procedural bar cleared, the court of appeals
addressed McCloud‘s underlying claims of trial counsel
ineffectiveness. It first addressed the experts claim and found Trial
Counsel did not perform deficiently by refusing to consult or use at
trial expert witnesses. Id. ¶ 73. The court considered the nature of
the experts‘ potential testimony, Trial Counsel‘s experience with
criminal defense and similar experts, the thoroughness of his pre-
trial investigation, and his overall trial strategy. See id. ¶¶ 62–72. The
court concluded that: ―Trial Counsel fulfilled his duty to investigate
the facts of the case[] and based on that investigation, made a
‗reasonable decision‘ that consulting experts was unnecessary.‖ Id.
¶ 73 (citing Strickland v. Washington, 466 U.S. 668, 691 (1984)).
¶32 The court of appeals then addressed the medical records
issue and found that Trial Counsel‘s performance did not prejudice
McCloud. It found that the discharge summary ―seems to be
affirmative evidence of abuse. And, if presented at trial, it could
have been harmful to McCloud.‖ Id. ¶ 76. Even if not harmful, the
10
Cite as: 2021 UT 14Opinion of the Court
―evidence merely would have been cumulative of what was
presented to the jury‖ because Trial Counsel elicited on cross-
examination information very similar to that contained in the
discharge summary. Id. ¶ 78. The court concluded ―that McCloud
has failed to show a reasonable probability that, but for Trial
Counsel‘s failure to obtain all of Victim‘s medical records, the result
at trial would have been different.‖ Id. ¶ 81 (citing State v. Munguia,
2011 UT 5, ¶ 30, 253 P.3d 1082).
¶33 In the end, the court of appeals determined that the post-
conviction court erred in finding McCloud‘s claims procedurally
barred, but it affirmed the denial of his petition on the underlying
merits. Id. ¶ 82. McCloud appealed, and this court granted
certiorari. We have jurisdiction under Utah Code section 78A-3-
102(3)(a).
STANDARD OF REVIEW
¶34 ―On certiorari, this court reviews the decision of the court
of appeals for correctness, giving no deference to its conclusions of
law.‖ State v. Baker, 2010 UT 18, ¶ 7, 229 P.3d 650. On the
underlying claims, ―[w]hen confronted with ineffective assistance
of counsel claims, we review a lower court‘s purely factual findings
for clear error, but [we] review the application of the law to the
facts for correctness.‖ Archuleta v. State, 2020 UT 62, ¶ 20, 472 P.3d
950 (alterations in original) (citation omitted).
ANALYSIS
¶35 McCloud argues that he was wrongly convicted of
multiple felonies because his Trial Counsel was ineffective.
Specifically, he argues that Trial Counsel failed to consult experts or
subpoena Victim‘s medical records when preparing his defense and
that these failures led to his conviction. McCloud did not raise these
issues on direct appeal because Appellate Counsel considered these
issues not ―obvious from the trial record‖ and advised McCloud
that he could raise them on post-conviction petition. When
McCloud did so, the post-conviction court found the PCRA barred
the claims because they ―could have been‖ raised on appeal by
filing a rule 23B motion. See UTAH CODE § 78B-9-106(1)(c); UTAH R.
CIV. P. 23B.
¶36 McCloud‘s procedural conundrum is rooted in a
misstatement in our case law regarding appellate counsel‘s
obligation to raise certain claims and in a misunderstanding of rule
23B‘s purpose. We address his appeal in two steps.
¶37 First, we take this opportunity to clarify appellate
counsel‘s obligations to conduct extra-record investigation and
11
MCCLOUD v. STATE
Opinion of the Court
raise certain claims on direct appeal of a criminal conviction or
sentence. We repudiate the requirement that appellate counsel can
be found deficient for omitting a claim only if that claim is ―obvious
from the trial record.‖6 We make clear that appellate counsel‘s
obligation to raise certain issues is solely governed by the Strickland
test. See Strickland v. Washington, 466 U.S. 668 (1984). That test is
simply whether counsel performed reasonably ―under prevailing
professional norms.‖ Id. at 688. And it encompasses both any duty
of counsel to conduct extra-record investigation and any decision to
file or not file a rule 23B motion to further develop claims raised on
appeal.
¶38 Second, we address McCloud‘s specific claims. We find
the PCRA bars his direct claims against Trial Counsel, but he can
still assert those claims through the lens of an appellate
ineffectiveness claim. To prevail on any ineffectiveness claim, a
petitioner must show that: (1) counsel performed deficiently and (2)
the deficient performance prejudiced the defense. Id. at 687. Here,
we need not decide whether Appellate Counsel performed
deficiently by omitting the claims on direct appeal. Any deficient
performance could not have prejudiced McCloud because Trial
Counsel was not ineffective. Trial Counsel did not perform
deficiently by not consulting experts; rather, he made a reasonable
strategic decision based on the law and facts of the case and his
theory of the defense. And Trial Counsel‘s failure to obtain all of
Victim‘s medical records did not prejudice the outcome—such an
investigation would have yielded a single record amounting to
cumulative evidence.
¶39 On these grounds, we affirm the decision of the court of
appeals and deny McCloud‘s post-conviction petition.
__________________________________________________________
6 This requirement was first adopted as dicta in Lafferty v. State,
2007 UT 73, ¶ 39, 175 P.3d 530, and subsequently repeated and
applied by this court. See, e.g., Kell v. State, 2008 UT 62, ¶ 42, 194
P.3d 913; Menzies v. State, 2014 UT 40, ¶ 211, 344 P.3d 581. Although
the parties do not formally ask us to overrule Lafferty, they do ask
us to clarify this area of the law. And they brief both the problem
and potential solutions. As we explain below, we find implicit in
their ask an argument to overrule Lafferty. See infra ¶¶ 59–61. Given
this implicit ask, adequate briefing on this issue, and the nature of
Lafferty as a misstatement that has been repeated as law, we are
comfortable in taking this opportunity to overrule the ―obvious
from the trial record‖ ―requirement‖ established in Lafferty.
12
Cite as: 2021 UT 14Opinion of the Court
I. STRICKLAND GOVERNS APPELLATE COUNSEL‘S
OBLIGATIONS TO RAISE CERTAIN ISSUES
ON DIRECT APPEAL
¶40 Substantively, McCloud‘s complaint is that Trial Counsel
was ineffective for his refusal to consult experts and failure to
subpoena Victim‘s medical records. However, much of the fight
around his petition has been over the proper procedure by which
he can (if at all) raise those claims. The parties, post-conviction
court, and court of appeals all have, at times, either argued for or
applied a different procedural avenue by which these claims may
proceed.7
¶41 Much of this confusion is rooted in misleading language
in our case law. In Carter v. Galetka, we cited language from a Tenth
Circuit Court of Appeals case stating that appellate counsel may be
found ineffective for omitting a ―dead-bang winner‖: a claim that
was ―obvious from the trial record‖ and would have been likely to
result in reversal. 2001 UT 96, ¶ 48, 44 P.3d 626 (quoting Banks v.
Reynolds, 54 F.3d 1508, 1515 (10th Cir. 1995)). Carter and Banks—
both habeas corpus petitions from defendants sentenced to death—
__________________________________________________________
7 For example, the State argues that the PCRA bars McCloud‘s
claims of ineffective Trial Counsel ―because he could have raised
them on appeal by filing a rule 23B motion for remand.‖ The
district court followed a similar line of thinking but added that
Appellate Counsel also performed deficiently when ―[s]he told
petitioner that he could raise other ineffectiveness claims not in the
record later, in post-conviction relief,‖ and thus ―fail[ed] to
investigate this claim.‖ The court of appeals erroneously concluded
from our case law that ―if an ineffective assistance of counsel claim
could have been raised in a rule 23B motion, the general rule is that
it will be barred on post-conviction.‖ McCloud v. State, 2019 UT App
35, ¶ 41, 440 P.3d 775. Yet, ―our precedent also establishes that
Appellate Counsel was not ineffective for omitting McCloud‘s
claims because they were not ‗obvious from the trial record.‘‖ Id.
¶ 50 (quoting Gregg v. State, 2012 UT 32, ¶ 44, 279 P.3d 396).
Perceiving a Catch-22 that would prohibit McCloud from ever
raising his potentially meritorious claims regarding Trial Counsel‘s
effectiveness, the court applied the ―unusual circumstances‖
common-law exception to avoid ―an obvious injustice‖ and directly
reach those claims. Id. (citation omitted). McCloud, for his part,
presumably now relies on the court of appeals‘ application of this
exception and directly briefs only the claims against Trial Counsel,
ignoring the Appellate Counsel gateway altogether.
13
MCCLOUD v. STATE
Opinion of the Court
used this language merely as an example of a claim for which
appellate counsel could be found ineffective for omitting. This court
then repeated the ―obvious from the trial record‖ language in a pair
of 2007 cases, stating it as a rule governing appellate counsel‘s
obligation to raise certain claims on appeal. Lafferty v. State, 2007 UT
73, ¶ 39, 175 P.3d 530 (―For a petitioner to prove that counsel was
ineffective for omitting a claim, he must show that the ‗issue [was]
obvious from the trial record and . . . probably would have resulted
in reversal on appeal.‘‖ (alterations in original) (emphasis added)
(quoting Taylor v. State (Taylor II), 2007 UT 12, ¶ 16, 156 P.3d 739)).
Thus, we inadvertently elevated that language from an example to a
rule.
¶42 This misstatement has since sown confusion in the realm
of post-conviction petitions. We take this opportunity to fix it. We
begin by tracing the lineage of the ―obvious from the trial record‖
―test‖ and explaining how any reliance on this or similar language
is misplaced when assessing the scope of an appellate attorney‘s
duty to investigate or raise certain claims. We then explain how that
duty is instead dictated by the Strickland standard of
―reasonableness under prevailing professional norms.‖ Strickland v.
Washington, 466 U.S. 668, 688 (1984). And this standard
encompasses the question of when an appellate attorney should
move to supplement the record under rule 23B of the Utah Rules of
Appellate Procedure.
A. Appellate Counsel’s Obligation to Raise Certain Issues on Appeal
Is Not Limited to Issues “Obvious from the Trial Record”
¶43 As the court of appeals put it, ―[t]his case concerns the
duty of appellate attorneys to investigate claims of ineffective
assistance of counsel that depend on facts outside the trial record.‖
McCloud v. State, 2019 UT App 35, ¶ 32, 440 P.3d 775.
¶44 The court of appeals identified tension between the
PCRA‘s procedural bar and our case law regarding appellate
counsel‘s duty to raise certain claims on appeal. Supra ¶ 29. The
result of this tension, the court reasoned, ―would encourage—even
compel—a reasonable attorney to conduct [a thorough extra-record
investigation] to avoid barring claims on post-conviction.‖
McCloud, 2019 UT App 35, ¶ 32 n.5. Yet this result is at odds with
accepted professional norms of appellate review. Accordingly, the
court ―note[d] the need for guidance on this issue.‖ Id. McCloud
14
Cite as: 2021 UT 14Opinion of the Court
and the State also ask for such guidance; we now endeavor to
provide it.8
¶45 We begin with the observation that trial attorneys and
appellate attorneys serve very different, and often specialized, roles
in our legal system. While trial attorneys must of course identify
and understand legal issues, much of their expertise lies in
developing facts—making discovery motions, interviewing
witnesses, and arguing evidentiary issues. Appellate attorneys, on
the other hand, are expected to do comparatively little fact-
finding—their expertise lies in spotting and arguing legal
complexities as applied to the established facts of the case on the
record. This does not mean that appellate attorneys are incapable of
doing extra-record factual investigations; doing so is just not
necessarily in their wheelhouse.
¶46 Nevertheless, circumstances may exist that would prompt
an appellate attorney to conduct some amount of factual research.
Often, these circumstances occur in the context of a potential
__________________________________________________________
8 While the parties all identify the need for guidance in this area
of the law, they generally frame the issue as an appellate attorney‘s
obligation to supplement the record under rule 23B prior to appeal.
For example, the court of appeals stated: ―McCloud asks us to
‗address appellate counsel‘s responsibility to root out instances of
trial counsel ineffectiveness‘ and potentially move for remand
under rule 23B. We note the need for guidance on this issue.‖
McCloud, 2019 UT App 35, ¶ 32 n.5. The State asks us (correctly, as
we explain below in part I(B)(2)) to ―clarify that appellate counsel
may be found ineffective for not filing a rule 23B motion if omitting
the motion violated the Strickland standard.‖ And McCloud states
that defendants and their direct appeal attorneys find themselves in
a ―current limbo . . . given the uncertainty of the conflicting
procedural scheme in Utah.‖
As we explain below, the proper inquiry is not whether
appellate counsel failed to file a rule 23B motion to further develop
a certain claim on direct appeal, but whether appellate counsel‘s
performance was objectively unreasonable under Strickland. See
infra part I(B)(2). Still, given the complexity of the procedural
interactions between rule 23B, this court‘s ―obvious from the trial
record‖ language, and the PCRA‘s procedural bar, we do not fault
the parties for not asking the precisely correct question. As such, we
hopefully provide the answers they seek.
15
MCCLOUD v. STATE
Opinion of the Court
ineffective assistance of counsel claim. See Smith v. Mullin, 379 F.3d
919, 926 (10th Cir. 2004) (―Extra-record facts are central to the vast
majority of ineffective assistance of counsel claims . . . .‖).
¶47 Recognizing that ineffective assistance of counsel claims
often rely on additional factual development, in 1992, this court
adopted rule 23B of the Utah Rules of Appellate Procedure. That
rule provides a party ―may‖ move for a temporary remand for
additional fact-finding necessary to support a claim of ineffective
assistance of counsel. UTAH R. APP. P. 23B. Still, the rule does not
specify when, if at all, an appellate attorney could be found
ineffective for not doing so. In other words, the rule does not tell us
under what circumstances an appellate attorney must conduct
additional fact-finding necessary to support an ineffectiveness
claim.
¶48 We have attempted to fill this perceived gap in the text of
rule 23B by cherry-picking from state and federal precedent ―rule‖
language originally intended as exemplary language. The ―obvious
from the trial record‖ language is the most common culprit and has
created the most mischief. This ―test‖ first appeared in Utah
jurisprudence in Carter, 2001 UT 96. There, the defendant was
convicted of murder and sentenced to death. Id. ¶ 2. Ten years later,
he filed a writ of habeas corpus asserting, inter alia, ineffective
assistance of appellate counsel. Id. ¶¶ 3, 32. To assist with its
analysis of the ineffectiveness claims in the context of a habeas
corpus petition challenging a conviction and death sentence, the
court looked to the Tenth Circuit case Banks. Id. ¶ 48. That court
explained:
When a habeas petitioner alleges that his counsel was
ineffective for failing to raise an issue on appeal, we
examine the merits of the omitted issue. Failure to
raise an issue that is without merit ―does not
constitute constitutionally ineffective assistance of
counsel‖ because the Sixth Amendment does not
require an attorney to raise every nonfrivolous issue
on appeal. Thus, counsel frequently will ―winnow
out‖ weaker claims in order to focus effectively on
those more likely to prevail. However, an ―appellate
advocate may deliver deficient performance and
prejudice a defendant by omitting a ‗dead-bang
winner,‘ even though counsel may have presented
strong but unsuccessful claims on appeal.‖
Banks, 54 F.3d at 1515 (citations omitted). Banks, in turn, cited to
U.S. v. Cook, which equated a ―dead-bang winner‖ to an issue that
16
Cite as: 2021 UT 14Opinion of the Court
―was obvious on the record, and must have leaped out upon even a
casual reading of [the] transcript‖ and ―which would have resulted
in a reversal on appeal.‖ 45 F.3d 388, 395 (10th Cir. 1995) (alteration
in original) (quoting Matire v. Wainwright, 811 F.2d 1430, 1438 (11th
Cir. 1987)). Clearly, the Cook and Matire courts intended the ―dead-
bang winner‖ test to be a very high bar—an omission of a claim so
egregious that there could be no doubt as to an appellate attorney‘s
ineffectiveness. Nonetheless, the Banks court lowered that bar by
defining a ―dead-bang winner‖ as an ―issue which is obvious from
the trial record and one which probably would have resulted in a
reversal on appeal.‖9 Banks, 54 F.3d at 1515 n.13 (emphases added).
And this court adopted that definition in Carter by quoting the
Banks‘ footnote and simply saying: ―We accept the reasoning of
Banks.‖ Carter, 2001 UT 96, ¶ 48.
¶49 Thus, the Carter court used ―obvious from the trial record‖
as a means of describing a ―dead-bang winner‖—a term in turn
borrowed from federal habeas corpus jurisprudence. And ―dead-
bang winner‖ was never intended as the sole test of when an
attorney could be found ineffective for failing to raise a particular
claim on appeal. It was intended as an example—a sufficient, but
not necessary, condition for a finding of ineffectiveness.
¶50 In 2007, we repeated the ―obvious from the trial record‖
language in a pair of post-conviction petitions where the
defendants, sentenced to death, alleged ineffective assistance of
appellate counsel. In Taylor II, a death row inmate asserted twenty-
five grounds for post-conviction relief, all tied to alleged ineffective
assistance of trial or appellate counsel. 2007 UT 12, ¶¶ 9–11. The
court quoted Carter and Banks, stating that ―[a] post-conviction
petitioner can show that his appellate counsel was ineffective‖ if
appellate counsel omitted a claim that is a ―dead-bang winner,‖
meaning an ―issue which is obvious from the trial record and one
which probably would have resulted in reversal on appeal.‖ Id. ¶ 16
(emphasis added) (quoting Carter, 2001 UT 96, ¶ 48). That was a
correct statement of the law; so far, so good.
__________________________________________________________
9 The Tenth Circuit Court of Appeals has since clarified that the
lower burden stated in Banks—that the omitted issue probably
would have resulted in reversal, rather than ―would have resulted
in a reversal‖—is the proper standard for effectiveness claims
under the Strickland standard. Neill v. Gibson, 278 F.3d 1044, 1057 n.5
(10th Cir. 2001).
17
MCCLOUD v. STATE
Opinion of the Court
¶51 Seven months later, we resolved the unrelated Lafferty
case. 2007 UT 73. There, a defendant also sentenced to death sought
post-conviction relief, also asserting twenty-five claims of trial
counsel ineffectiveness through the ―lens‖ of appellate counsel
ineffectiveness.10 Id. ¶¶ 5, 8, 45, 48. Citing Taylor II, the court stated:
―For a petitioner to prove that counsel was ineffective for omitting a
claim, he must show that the ‗issue [was] obvious from the trial
record and . . . probably would have resulted in reversal on
appeal.‘‖ Id. ¶ 39 (alteration in original) (emphasis added) (quoting
Taylor II, 2007 UT 12, ¶ 16). This was an incorrect statement of the
law.
¶52 This rewording of Taylor II modified the analysis in two
significant ways: one intentional, one not. First, the court explained
in a footnote that it deliberately omitted the term ―dead-bang
winner.‖
While this type of omission remains an accurate
example of ineffective assistance of appellate counsel,
we are reluctant to repeat the ―dead-bang winner‖
language here because of the possibility that it may be
viewed as the standard for relief, rather than as an
example of a circumstance when relief would be
warranted. If such a mistake were made, it would
overstate the petitioner‘s burden.
Id. ¶ 39 n.2. Thus, the court clarified that a ―dead-bang winner‖ was
meant only as an ―example‖ of when appellate counsel would be
found deficient, not a ―standard.‖
¶53 Second, while the court rejected ―dead-bang winner‖ as a
standard, it inadvertently adopted another. Taylor II stated that a
petitioner “can” succeed on a claim of appellate ineffectiveness if
counsel omitted a ―dead-bang winner,‖ which is an issue ―obvious
from the trial record.‖ But Lafferty stated that a petitioner “must”
show that appellate counsel omitted an issue ―obvious from the
trial record.‖
__________________________________________________________
10 Lafferty first attempted to directly assert his claims against
trial counsel in his PCRA petition. Id. ¶ 45. When the State moved
for summary judgment, he filed a memorandum in opposition to
the motion wherein he characterized his claims as ineffective
assistance of appellate counsel. Id. ¶ 46. Although the court held
this to be an impermissible amendment to his pleading, id. ¶ 47, it
nevertheless proceeded to dispose of Lafferty‘s claims on the merits
in the alternative. See id. ¶¶ 48–52.
18
Cite as: 2021 UT 14Opinion of the Court
¶54 Ultimately, the court did not apply its newly articulated
test. On the merits, the court implied that appellate counsel had
likely just ―winnow[ed] out weaker claims in order to focus
effectively on those more likely to prevail.‖ Id. ¶ 49 (internal
quotation marks omitted) (citing Carter, 2001 UT 96, ¶ 48).
Regardless of the true reason for omitting those claims, the court
held the defendant failed to carry his burden of proof or establish
prejudice. Id. ¶¶ 50, 51. Thus, the statement that an appellate
attorney ―must‖ omit an issue ―obvious from the trial record‖ in
order to be proven ineffective was untested and is dicta.
¶55 Nevertheless, we have been stating and applying Lafferty
as a bright-line test ever since. See, e.g., Kell v. State, 2008 UT 62,
¶ 42, 194 P.3d 913 (―To show that appellate counsel was ineffective
in failing to raise a claim, the petitioner must show that the issue
[was] obvious from the trial record . . . .‖ (alteration in original)
(internal quotation marks omitted) (citing Lafferty, 2007 UT 73, ¶
39)); Ross v. State (Ross II), 2012 UT 93, ¶¶ 16, 45, 293 P.3d 345(explaining that the district court applied the ―obvious from the
trial record‖ test and repeating that an otherwise effective appellate
counsel may still be found ineffective for omitting a ―dead-bang
winner‖ (citation omitted)); Menzies v. State, 2014 UT 40, ¶ 211, 344
P.3d 581 (explaining that while the Strickland two-part test applies
to all ineffectiveness claims, the ―obvious from the trial record‖ test
is an additional requirement for a claim that appellate counsel was
ineffective for failing to raise an issue, and applying that test).
Indeed, the post-conviction court below described ―the well-
established standard that the [omitted] claims must be obvious
from the record.‖
¶56 This unintended elevation of ―obvious from the trial
record‖ from an example to a standard brings us to the court of
appeals‘ treatment of McCloud‘s petition. The court found the
PCRA barred McCloud‘s direct claims against Trial Counsel.
McCloud, 2019 UT App 35, ¶ 50. But if McCloud brought those
claims through the gateway of an appellate ineffectiveness claim,
that claim would necessarily fail because the omitted claims were
not ―obvious from the trial record.‖ See id. Either way, the court
reasoned, McCloud could not reach his underlying claims of Trial
Counsel‘s ineffectiveness. See id.¶57 The court of appeals applied the common-law ―unusual
circumstances‖ exception to reach McCloud‘s underlying claims.
See id. ¶¶ 42, 51. In doing so, the court articulated a new test for
when the PCRA would not bar claims omitted on direct appeal—a
test that seemingly attempts to reconcile Utah jurisprudence
19
MCCLOUD v. STATE
Opinion of the Court
interpreting the PCRA‘s procedural bar, applying the ―obvious
from the trial record‖ ―test,‖ and expressing an appellate attorney‘s
duties to raise claims under the federal Strickland standard of
effectiveness.
[C]laims that could have been raised in a rule 23B
motion will not be barred on post-conviction when, as
here, the record on appeal did not indicate a
reasonable probability that developing those claims
would have resulted in reversal. In such cases,
because the record would not lead a reasonable,
competent attorney to develop the claims on appeal, a
petitioner may pursue them in a petition for post-
conviction relief.
Id. ¶ 51.
¶58 We largely approve of the court of appeals‘ ultimate
reasoning, but not the path it took to get there. The ―unusual
circumstances‖ exception was unbriefed by the parties and raised
sua sponte by the court. Still, we recognize the court‘s struggle with
applying our erroneous Lafferty standard to the PCRA‘s procedural
bar. As such, we now repudiate the premise articulated in Lafferty
that, in order to find appellate counsel ineffective for omitting an
issue, a petitioner ―must show that the ‗issue [was] obvious from
the trial record.‘‖ (Emphasis added).
¶59 In taking this step, we note that all parties and the court of
appeals have asked for clarification regarding an appellate
attorney‘s duty to raise certain claims on appeal. Supra ¶ 44 n.8. In
so doing, they identify the mischief caused by Lafferty and the need
for a more workable standard. The State comes closest to asking for
a direct repudiation of Lafferty, calling it a ―false premise rooted in
this Court‘s case law‖ and saying (correctly) that it ―neither defines
the entire extent of appellate counsel‘s obligations nor limits
Strickland‘s remedy to its violation.‖ McCloud asks us to adopt a
―clear, defined rule providing [appellate counsel] with proper
guidance in how to review, investigate if necessary, and present
claims of trial counsel ineffectiveness.‖ We find these statements to
be implicit invitations to overrule Lafferty, complete with the
necessary adversarial briefing for us to do so.
¶60 Importantly, this is not a situation of overruling precedent
to correct a faulty judicial analysis. See Eldridge v. Johndrow, 2015 UT
21, ¶ 24, 345 P.3d 553 (explaining that the first factor in the stare
decisis analysis is ―the persuasiveness of the authority and
reasoning on which the precedent is based‖). Our statement in
Lafferty did not rely on ―weak authorities‖ or ―weak precedent.‖ Id.20
Cite as: 2021 UT 14Opinion of the Court
¶¶ 25, 26. Nor did it ―overuse‖ any particular prong or factor of an
existing test. See id. ¶ 30. It was, by our reckoning, a simple
misstatement of the law that went unnoticed because it was not
actually adjudicated in Lafferty. In Taylor II, we stated that a
defendant can prove ineffectiveness by showing that appellate
counsel omitted a meritorious claim ―obvious from the trial
record.‖ But seven months later, we wrote in Lafferty that a
defendant must show the same. We did so with no explanation for
this change or analysis of the ramifications—likely because Lafferty
did not actually apply its changed language. This misstatement has
yielded an unworkable procedural framework—one which all
parties agree needs fixing. See Coburn v. Whitaker Constr. Co., 2019
UT 24, ¶ 14, 445 P.3d 446 (―We thus don‘t overrule our precedents
unless they‘ve proven to be unpersuasive and unworkable, create
more harm than good, and haven‘t created reliance interests.‖
(citation omitted)).
¶61 Comfortable with this case as an appropriate vehicle for
doing so, we repudiate Lafferty‘s statement that appellate counsel
can be found ineffective for omitting a claim only if that claim was
―obvious from the trial record.‖ We next explain that an appellate
attorney may be found ineffective for omitting a claim only if a
reasonable attorney, acting under prevailing professional norms,
would have brought that claim.
B. Appellate Counsel’s Obligation to Raise Certain Issues or Conduct
Extra-Record Investigation Is Defined by Reasonableness Under
Prevailing Professional Norms
¶62 We now explain how the Strickland standard of
reasonableness under prevailing professional norms prescribes an
appellate attorney‘s obligation to raise certain issues on appeal. In
subsection (1), we describe the Strickland standard of attorney
effectiveness and its historical resilience to attempts to further
refine it. In subsection (2), we show how an appellate attorney‘s
decision to make or not make a rule 23B motion falls under the
Strickland analysis.
1. The Strickland Reasonableness Standard Is the Sole Measure of
Appellate Counsel Effectiveness
¶63 ―A defendant has the right to the effective assistance of
appellate counsel under the Due Process Clause of the Fourteenth
Amendment to the United States Constitution.‖ Taylor II, 2007 UT
12, ¶ 16. ―The standard for evaluating whether appellate counsel is
ineffective is the same Strickland standard used to determine
whether trial counsel is ineffective‖ under the Sixth Amendment.
Kell, 2008 UT 62, ¶ 42. That Amendment provides: ―In all criminal
21
MCCLOUD v. STATE
Opinion of the Court
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.‖ U.S. CONST. amend. VI.
¶64 In Strickland v. Washington, the United States Supreme
Court articulated a test for effective assistance of counsel under the
Sixth Amendment. 466 U.S. 668. Under Strickland, any successful
ineffective assistance of counsel claim requires the defendant to
show that (1) counsel performed deficiently and (2) the deficient
performance prejudiced the defense. Id. at 687. Under the deficient
performance prong, ―[t]he proper measure of attorney performance
remains simply reasonableness under prevailing professional
norms.‖ Id. at 688. The performance is ―evaluated from counsel‘s
perspective at the time of the alleged error and in light of all the
circumstances.‖ Kimmelman v. Morrison, 477 U.S. 365, 384 (citing
Strickland, 466 U.S. at 689). Under the performance prong, Utah
courts assess deficient performance under ―an objective standard of
reasonable conduct.‖ Lafferty, 2007 UT 73, ¶ 39 (citation omitted).
Under the prejudice prong, a defendant must demonstrate ―a
reasonable probability that, but for counsel‘s unprofessional errors,
the result of the proceeding would have been different.‖ State v.
Wilder, 2018 UT 17, ¶ 17, 420 P.3d 1064 (quoting Archuleta v. Galetka,
2011 UT 73, ¶ 40, 267 P.3d 232).
¶65 The Strickland court explained that the language of the
Sixth Amendment ―relies . . . on the legal profession‘s maintenance
of standards sufficient to justify the law‘s presumption that counsel
will fulfill the role in the adversary process that the Amendment
envisions.‖ 466 U.S. at 688. And Utah courts have routinely
reiterated this presumption of attorney competence. See, e.g.,
Menzies v. State, 2014 UT 40, ¶ 76, 344 P.3d 581 (―We ‗must indulge
a strong presumption that counsel‘s conduct falls within the wide
range of reasonable professional assistance.‘‖ (quoting Strickland,
466 U.S. at 689)); State v. Gallegos, 2020 UT 19, ¶ 34, 463 P.3d 641(same); State v. Scott, 2020 UT 13, ¶ 35, 462 P.3d 350 (substantially
the same).
¶66 Articulating its reasonableness standard, the Strickland
court was careful to forewarn that ―[m]ore specific guidelines are
not appropriate.‖ 466 U.S. at 688. Since Strickland, federal courts
have heeded this warning and routinely refused to adopt a more
refined test of attorney performance. See, e.g., Williams v. Taylor, 529
U.S. 362, 391 (2000) (explaining that ―the Strickland test ‗of necessity
requires a case-by-case examination of the evidence.‘‖ (citation
omitted)); Dewald v. Wriggelsworth, 748 F.3d 295, 304 (6th Cir. 2014)
(Cole, J., dissenting) (―In Strickland, the Supreme Court announced
a generalized legal standard that lower courts must apply to a
22
Cite as: 2021 UT 14Opinion of the Court
variety of factual settings. There, the court acknowledged the
difficulty in articulating a bright-line rule that could apply to every
variation of inadequate legal representation.‖ (citing Strickland, 466
U.S. at 687–88)).
¶67 Nonetheless, as explained above in section (A), Utah
courts have inadvertently grafted onto the Strickland standard an
additional requirement: that appellate counsel cannot be found
ineffective for omitting a claim unless that claim is ―obvious from
the trial record.‖ We repudiate this unnecessary addition and today
hold that the only measure of an appellate attorney‘s
performance—including a decision to omit a certain claim—is
reasonableness under prevailing professional norms and in light of
the circumstances of the appeal.
¶68 McCloud now asks us to ―clarify the scope of [appellate]
counsel‘s duties on direct appeal in Utah, which have been
uncertain under prior case law.‖ While appellate attorneys across
the state may sleep more soundly at night if we were to adopt a
bright line test, we have seen the mischief that such a test can cause.
See supra ¶ 29 (explaining the court of appeals‘ struggle to reconcile
rule 23B and Litherland with our prior ―obvious from the trial
record‖ standard). Therefore, we only say that the duty to
investigate and raise certain claims on direct appeal is governed by
a test of reasonableness under the peculiar circumstances of a given
case.
¶69 Consideration of the circumstances is what breathes life
into the reasonableness test and dictates the scope of any duty to
conduct extra-record investigation. Typically, for example,
appellate counsel is expected to unearth meritorious claims by
reviewing the trial record and interviewing the appellant. See, e.g.,
Mikell v. Terry, 2012 WL 6214622, at *8 (N.D. Ga. 2012)
(―[Defendant] discharged his duty to investigate Petitioner‘s case
by thoroughly reviewing the case file and transcript and
interviewing the Petitioner and trial counsel.‖); Gray v. Greer, 800
F.2d 644, 647 (7th Cir. 1986) (―When a claim of ineffective assistance
of counsel is based on failure to raise issues on appeal, we note it is
the exceptional case that could not be resolved on an examination
of the record alone.‖). But we do not deny the possibility that,
under certain circumstances, appellate counsel may have an
obligation to conduct further investigation. For example, although
―strategic choices [to assert or omit a claim] made after thorough
investigation of law and facts relevant to plausible options are
virtually unchallengeable,‖ Strickland, 466 U.S. at 690, appellate
counsel still may be ineffective ―when ignored issues are clearly
23
MCCLOUD v. STATE
Opinion of the Court
stronger than those presented.‖ Smith v. Robbins, 528 U.S. 259, 288
(2000) (citation omitted). At heart, the Strickland analysis is
necessarily a fact-intensive and case-specific inquiry. See Murphy v.
Royal, 875 F.3d 896, 922 (10th Cir. 2017) (―Although claims of
lawyer ineffectiveness are each unique and require fact-intensive
analysis, Strickland‘s framework still applies, and the variety of fact
patterns obviates neither the clarity of the rule nor the extent to
which the rule must be seen as established by [the Supreme]
Court.‖ (alteration in original) (citation omitted) (internal quotation
marks omitted)).
¶70 The Strickland test also incorporates many of our examples
of omitted claims that could support a finding of ineffective
assistance of appellate counsel. An appellate attorney‘s duty to
investigate and raise claims ―obvious from the trial record,‖ or
based on ―red flags,‖ Ross II, 2012 UT 93, ¶ 51, or ―obvious errors,‖
Gregg, 2012 UT 32, ¶ 45, in the record depends on the totality of
circumstances of the appeal. At one extreme, appellate counsel
likely could be found ineffective for omitting a ―dead-bang winner‖
on direct appeal, even if she were otherwise effective and the claim
required some additional investigation to develop. Ross II, 2012 UT
93, ¶ 45 (citation omitted). At the other end of the spectrum,
appellate counsel likely could not be found ineffective for omitting
a potentially meritorious claim not fully developed in the record if
she already had a host of strong claims based on the record alone.
2. Appellate Counsel‘s Decision to Make or Forego a Rule 23B
Motion Is Merely One Factor in the Strickland Analysis
¶71 The Strickland standard similarly encompasses the issue of
when appellate counsel should utilize rule 23B to remand a case for
additional fact-finding necessary to support an ineffectiveness
claim. Prior to 1992, appellants seeking to raise ineffectiveness
claims frequently faced the ―inadequate record dilemma.‖ State v.
Litherland, 2000 UT 76, ¶ 14, 12 P.3d 92. The dilemma was that,
while appellants have the ―obligation to provide supporting
arguments by citation to the record,‖ trial ―counsel‘s ineffectiveness
may have caused, exacerbated, or contributed to the record
deficiencies, thus presenting the defendant with a catch–22 unique
to claims of ineffectiveness of trial counsel.‖ Id. ¶¶ 11–12. So, prior
to rule 23B‘s adoption, the general rule was that ―a claim of
ineffectiveness of trial counsel cannot be raised on appeal because
the trial record is insufficient to allow the claim to be determined.‖
State v. Humphries, 818 P.2d 1027, 1029 (Utah 1991).
24
Cite as: 2021 UT 14Opinion of the Court
¶72 Rule 23B, ―specifically designed to address the inadequate
record dilemma,‖ was adopted in 1992. Litherland, 2000 UT 76, ¶ 14.
It provides, in relevant part:
A party to an appeal in a criminal case may move the
court to remand the case to the trial court for entry of
findings of fact, necessary for the appellate court's
determination of a claim of ineffective assistance of
counsel. The motion will be available only upon a
nonspeculative allegation of facts, not fully appearing
in the record on appeal, which, if true, could support
a determination that counsel was ineffective.
UTAH R. APP. P. 23B(a). With ―a ready procedural mechanism . . .
grafted into the appeals process,‖ the Litherland court held that
―where, on direct appeal, defendant raises a claim that trial counsel
was ineffective (and assuming defendant is represented by different
counsel than at trial), defendant bears the burden of assuring the
record is adequate.‖ 2000 UT 76, ¶¶ 14, 16. The court further
explained: ―Hence, ineffectiveness claims may be treated in the
same manner as other issues on direct appeal. Appellants bear the
burden of proof with respect to their appeals, including the
burdens attending the preservation and presentation of the record.‖
Id. ¶ 17.
¶73 Below, the district court relied in part on Litherland‘s
interpretation of rule 23B to hold that ―appellate counsel‘s [sic]
performed deficiently by failing to investigate [the medical records]
claim in a Rule 23(b) [sic] motion.‖ The court of appeals similarly
cited Litherland in stating that ―because McCloud technically ‗could
have‘ raised these claims on appeal by moving to supplement the
record under rule 23B, our precedent dictates that they should be
barred.‖ McCloud, 2019 UT App 35, ¶ 50.
¶74 Yet Litherland‘s interpretation of a defendant‘s burden to
make a rule 23B motion on appeal does not address the specific
issue at bar. In Litherland, the defendant claimed his trial counsel
was ineffective for failing to remove two potential jurors during
voir dire. See 2000 UT 76, ¶¶ 3–7. However, he implied that the
evidence of his counsel‘s rationale, or lack thereof, for not
challenging the potential jurors was inadequately represented by
the record. See id. ¶¶ 6, 9–10, 18. The key point is that the defendant
in Litherland did in fact assert the ineffectiveness claim. Thus,
Litherland stands for the proposition that a defendant cannot: assert
an ineffectiveness claim, fail to make a 23B motion to supplement
the record relative to that claim, and subsequently complain of an
25
MCCLOUD v. STATE
Opinion of the Court
inadequate record. But this says nothing about when a defendant or
his appellate counsel reasonably neglects, due to an inadequate
record, to assert an ineffectiveness claim in the first place.
¶75 We reject any suggestion that appellate counsel has a duty
to make a 23B motion relative to any ineffectiveness claim that
conceivably could be raised on appeal if a reasonable attorney
would not raise such a claim. Such an obligation would place an
undue burden on appellate counsel to operate outside prevailing
professional norms by conducting excessive factual research. It
would also oppose the plain language of the rule, which provides
that a party ―may move the court‖ for a temporary remand for
additional fact-finding ―upon a nonspeculative allegation of facts.‖
(Emphasis added). Nothing about this language indicates a
mandate to employ the rule. To the contrary, this court has
explained that a rule 23B motion should be granted only in specific
circumstances—not for a ―fishing expedition.‖ State v. Griffin, 2015
UT 18, ¶ 19, 441 P.3d 1166 (citing State v. Hopkins, 1999 UT 98, ¶ 13
n.1, 989 P.2d 1065); see also id. (―The mere hope that an individual
may be able to provide information if subpoenaed to testify is not
sufficient. An affiant must submit specific facts and details that
relate to specific relevant occurrences‖ when moving for a remand
under rule 23B.); Ross v. State (Ross III), 2019 UT 48, ¶ 59 n.6, 448
P.3d 1203 (explaining that rule 23B ―has a narrow and specific
purpose—to permit a party to address record deficiencies that exist
as a result of ineffective assistance of counsel‖ (emphasis added)).
¶76 Today we clarify that the Strickland standard encompasses
any obligation an appellate attorney may have to make a rule 23B
motion. Specifically, an analysis of any such obligation‘s existence
requires two steps. First, counsel must be aware of ―a
nonspeculative allegation of facts, not fully appearing in the
record‖ that could support on appeal an ineffectiveness claim.
Second, counsel will have an obligation to make the motion,
supplement the record with those facts, and raise the claim on
appeal only if it would be objectively unreasonable to not do so.
Accordingly, we stress that when a court reviews an appellate
ineffectiveness claim in a case such as the present one, the relevant
inquiry is whether counsel‘s performance, including a decision to
not move under Rule 23B, was unreasonable under prevailing
professional norms.
II. APPELLATE COUNSEL WAS NOT INEFFECTIVE BECAUSE
TRIAL COUNSEL WAS NOT INEFFECTIVE
¶77 Having clarified appellate counsel‘s duty to conduct any
extra-record investigation and raise certain claims on appeal, we
26
Cite as: 2021 UT 14Opinion of the Court
now turn to McCloud‘s specific claims. At bottom, he claims that
Trial Counsel was ineffective for refusing to consult experts and
failing to obtain Victim‘s medical records. McCloud would prefer to
not reach those claims through the gateway of an appellate
ineffectiveness claim. We cannot indulge his preference; the PCRA
bars his direct claims. But in the end, it matters not because Trial
Counsel was not ineffective.
¶78 We begin with the PCRA. It provides that ―a person who
has been convicted and sentenced for a criminal offense may file an
action . . . for post-conviction relief to vacate or modify the
conviction or sentence‖ upon certain enumerated grounds. UTAH
CODE § 78B-9-104(1). One of these grounds is that ―the petitioner
had ineffective assistance of counsel in violation of the United
States Constitution or Utah Constitution.‖ Id. § 78B-9-104(1)(d).
However, ―[a] person is not eligible for relief under this chapter
upon any ground that: . . . could have been but was not raised at
trial or on appeal,‖ id. § 78B-9-106(1)(c), unless the failure to do so
―was due to ineffective assistance of counsel.‖ Id. § 78B-9-106(3)(a).
¶79 That McCloud did not raise on appeal his claims against
Trial Counsel is undisputed. So, we consider whether his claims
―could have been raised‖ on appeal. ―Our cases establish that a
defendant ‗could have‘ raised a claim when he or his counsel is
aware of the essential factual basis for asserting it.‖ Pinder v. State,
2015 UT 56, ¶ 44, 367 P.3d 968.11 Below, the court of appeals
determined that McCloud ―could have‖ raised his ineffectiveness
claims on appeal because, at the time, ―[b]oth McCloud and
Appellate Counsel were aware of these potential claims and the
essential factual basis for asserting them.‖ See McCloud v. State, 2019
UT App 35, ¶¶ 35, 46, 440 P.3d 775. We agree; both McCloud and
Appellate Counsel testified that McCloud complained of these
issues to Appellate Counsel prior to the direct appeal.
__________________________________________________________
11 We note here that Pinder and the cases it cites for its ―essential
factual basis‖ test were analyzing claims not raised at trial or on
post-conviction petition. See Pinder v. State, 2015 UT 56, ¶¶ 44–45;
Taylor v. State, 2012 UT 5, ¶¶ 19–22, 270 P.3d 471; Gardner v. State,
2010 UT 46, ¶ 76, 234 P.3d 1115; Gardner v. Galetka, 2004 UT 42, ¶ 13,
94 P.3d 263. We do not foreclose the possibility that, in a future
case, we may conclude that the ―essential factual basis‖ test is
unworkable as applied to a direct appeal, given the reasonable
expectations of appellate counsel to perform extra-record
investigation. See supra ¶ 68. But we need not decide this issue
today.
27
MCCLOUD v. STATE
Opinion of the Court
¶80 But that is not the end of it. McCloud may nevertheless
assert his underlying claims if he can show that the failure to raise
them on direct appeal ―was due to ineffective assistance of
counsel.‖ To prove ineffective assistance of counsel, a defendant
must show that (1) counsel performed deficiently, and (2) the
deficient performance prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984).
¶81 The procedural posture of this case makes evaluation of
the deficient performance prong difficult. Because the court of
appeals applied the ―unusual circumstances‖ exception to directly
address the claims of Trial Counsel‘s ineffectiveness, McCloud has
briefed the underlying claims on the merits but not the issue of
Appellate Counsel‘s performance in omitting those claims. Further,
Appellate Counsel relied on this court‘s ―obvious from the trial
record‖ ―test‖, see supra part I(A), in both deciding which claims to
raise on appeal and informing McCloud that he could raise
additional ineffectiveness claims in a post-conviction petition. It
would be difficult, and perhaps unfair, to judge Appellate
Counsel‘s performance based on an unclear explication of the law.
¶82 Fortunately, we need not evaluate Appellate Counsel‘s
performance because any deficient performance could not have
prejudiced McCloud. See Strickland, 466 U.S. at 697 (―[A] court need
not determine whether counsel's performance was deficient before
examining the prejudice suffered by the defendant . . . .‖). To show
prejudice, a defendant must demonstrate ―a reasonable probability
that, but for counsel‘s unprofessional errors, the result of the
proceeding would have been different.‖ State v. Wilder, 2018 UT 17,
¶ 17, 420 P.3d 1064 (quoting Archuleta v. Galetka, 2011 UT 73, ¶ 40,
267 P.3d 232). Because Trial Counsel was not ineffective, McCloud‘s
fate would be no different had Appellate Counsel raised on direct
appeal the issues of which he now complains.
¶83 We agree with the court of appeals‘ analysis of Trial
Counsel‘s effectiveness. First, we show that Trial Counsel did not
perform deficiently by refusing to consult with or use experts; he
made a reasonable strategic decision based on the circumstances of
the case and his theory of defense. Second, we show that Trial
Counsel‘s failure to obtain all of Victim‘s medical records did not
prejudice McCloud; the records would have produced a single
piece of evidence that was cumulative at best and incriminating at
worst.
28
Cite as: 2021 UT 14Opinion of the Court
A. Trial Counsel Did Not Perform Deficiently by Refusing to
Consult or Use Experts
¶84 Proving deficient performance under Strickland is no easy
task. ―To establish that counsel was deficient, a petitioner must
overcome the strong presumption that counsel rendered
constitutionally sufficient assistance by showing that counsel‘s
conduct ‗fell below an objective standard of reasonableness‘ under
prevailing professional norms.‖ Lafferty v. State, 2007 UT 73, ¶ 12,
175 P.3d 530 (citing Strickland, 466 U.S. at 688–90). As discussed
above, the United States Supreme Court has consistently refused to
add specificity to the Strickland test. Supra ¶ 66. Instead, the
reasonableness of counsel‘s performance is to be evaluated on a
case-by-case basis, considering all the circumstances. Supra ¶¶ 66,
69.
¶85 McCloud argues that Trial Counsel was ineffective
because Trial Counsel refused to consult experts when preparing
the defense or to call at trial any experts. Prior to trial, the
McClouds independently researched ―parental alienation
syndrome‖ and believed the defense should utilize ―experts in
cases involving child witnesses and false memories‖ and obtain
McCloud‘s psychological profile. Still, Trial Counsel refused to
consult or call at trial any experts. McCloud‘s argument now boils
down to the assertion that there was ―absolutely no risk to hiring
experts . . . and there were numerous reasons to [at least] consult
them.‖
¶86 But ―nothing to lose‖ is not the standard of competent
advocacy. See Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)
(explaining that the United States Supreme Court ―has never
established anything akin to the . . . ‗nothing to lose‘ standard for
evaluating Strickland claims‖). As the court of appeals aptly
explained, trial counsel is obligated to conduct ―adequate
investigation of ‗the underlying facts of the case‘‖ in order to ―set[]
the foundation for counsel‘s strategic decisions about how to build
the best defense.‖ McCloud v. State, 2019 UT App 35, ¶¶ 56, 57, 440
P.3d 775 (quoting State v. Hales, 2007 UT 14, ¶ 69, 152 P.3d 321). The
specific facts revealed by an adequate investigation ―may require
trial counsel to investigate potential [expert] witnesses‖ or ―may
reveal that ‗expert evidence is critical‘‖ to the case, requiring
counsel to utilize experts to adequately represent the client. Id. ¶ 57
(alteration in original) (citations omitted). In other words, after
adequate investigation, counsel may reasonably decide not to
consult or call experts if ―reasonable professional judgments
support limitations on investigation.‖ Id. ¶ 58 (citation omitted).
29
MCCLOUD v. STATE
Opinion of the Court
This is a far cry from McCloud‘s claim that ―trial counsel have a
fundamental duty to . . . hir[e] expert assistance.‖12
¶87 It seems that McCloud and Trial Counsel simply had a
difference of opinion regarding their theory of the defense.
McCloud thought they should craft a ―scientific‖ defense based on
―parental alienation syndrome‖ and employing child memory and
psychosexual experts. Trial Counsel disagreed; the case should not
be a ―battle of experts.‖ He considered it more of a ―he-said/she-
said‖ case and believed there was ―compelling evidence to discredit
the she-said aspect.‖ Trial Counsel also testified: ―I make it very
clear that when I take a case, I'm the lawyer who calls the shots . . . .
And if my clients are not satisfied with that, they are more than
welcome to hire other counsel who will do it the way they want it
done.‖
¶88 To effectuate his trial strategy, Trial Counsel presented
evidence of McCloud‘s calendars and notes as well as a ―video
taken at Christmas‖ showing that McCloud and Victim were not
together on certain days of alleged abuse. McCloud, 2019 UT App
35, ¶ 70. He also ―effectively cross-examined‖ Victim at trial,
―highlighting inconsistencies in her testimony,‖ eliciting ―testimony
of ‗deteriorated‘ relationships between McCloud and Victim and
McCloud and Victim‘s mother,‖ and suggested that Victim was
trying to ―get back at her father.‖ Id. ¶ 71. Although the amassed
evidence did not create a complete alibi, Trial Counsel hoped ―that
if several of [Victim‘s] representations (as to dates) were proved to
be false, the rest would be called into question.‖ Id. ¶ 70 (alteration
in original). Ultimately, the strategy was not a total failure—the
__________________________________________________________
12 For this proposition, McCloud cites three cases; he overstates
the holding of each. In State v. J.A.L., we found that counsel
performed deficiently because counsel essentially conducted no
investigation. 2011 UT 27, ¶¶ 7–12, 29, 35–36, 262 P.3d 1. There,
counsel failed to analyze or hire experts to rebut a key piece of
physical evidence (a ―Code R kit‖ used to collect and analyze
evidence of an alleged rape) and called at trial only a single witness,
the defendant. Id. In Hales, defense counsel was similarly found
deficient for failing to utilize a competent expert to rebut the State‘s
interpretation of a key piece of physical evidence (a CT scan). 2007
UT 14, ¶¶ 28–29, 69. And in Taylor v. State (Taylor II), counsel was
deficient for failing to investigate and hire experts in part because
of ―his lack of knowledge of mitigation experts and his belief that
all experts were ‗hired guns‘ and that it was unethical to use them.‖
2007 UT 12, ¶ 55, 156 P.3d 739.
30
Cite as: 2021 UT 14Opinion of the Court
jury convicted McCloud on four counts but acquitted him on the
remaining three.
¶89 In all, we agree with the court of appeals that Trial
Counsel adequately investigated McCloud‘s case and made a
reasonable strategic decision to not consult or call experts.
Trial Counsel had practiced criminal law for twenty-
five to thirty years. In that time, he had used
psychosexual profile experts and false memory
experts and sometimes had consulted them before
trial without calling them at trial. Trial Counsel
testified that ―multiple factors‖ go into his decision to
consult or retain experts, including ―[i]nvestigation,
the specific facts, the defense you‘re running, the type
of case,‖ and ―what you believe is going to be
necessary‖ to prevail.
Id. ¶ 63 (alteration in original). ―Indeed, a review of Trial Counsel‘s
strategy and ‗overall performance indicates active and capable
advocacy,‘‖ id. ¶ 70 (quoting Harrington v. Richter, 562 U.S. 86, 111
(2011)), under prevailing professional norms of pre-trial
investigation and strategic decision-making. As such, Trial Counsel
did not perform deficiently under the circumstances in refusing to
consult or call at trial experts.
B. Trial Counsel’s Failure to Obtain All of Victim’s Medical Records
Did Not Prejudice the Outcome
¶90 ―To show prejudice in the ineffective assistance of counsel
context, the defendant bears the burden of proving . . . that there is
a reasonable probability that, but for counsel‘s errors, the result of
the proceeding would have been different.‖ State v. Munguia, 2011
UT 5, ¶ 30, 253 P.3d 1082 (citation omitted). ―A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.‖ Id. (citation omitted).
¶91 McCloud claims that Trial Counsel was ineffective for
failing to obtain all of Victim‘s medical records. Prior to trial, the
State provided Trial Counsel with some of Victim‘s medical and
mental health records. Trial Counsel incorrectly ―believed we had
all of the records‖ and did not seek to subpoena any further
records. Had Trial Counsel subpoenaed the records, the request
would have yielded a single record: the discharge summary of a
meeting between Victim and a doctor three weeks prior to Victim‘s
first claims to law enforcement of the alleged abuse. McCloud
highlights in his brief that the discharge summary states Victim told
the doctor that she ―d[id] not recall [McCloud] being sexually
31
MCCLOUD v. STATE
Opinion of the Court
inappropriate‖ other than showering and sleeping in the same bed
with her.
¶92 However, McCloud glosses over the rest of the discharge
summary. He acknowledges that the report ―indicated that there
may have been some sexual abuse,‖ when the victim was young—a
euphemistic way of summarizing that ―[Victim] has been having
flashbacks and nightmares about previous sexual abuse by her
biological father.‖ And although McCloud ―never denied that he
had washed his daughter in the shower when she was young,‖ he
neglects to mention that the discharge summary continues:
―[McCloud] also insisted on sleeping with [Victim]. . . . and it is
unclear whether this was actually a case of molestation or a father
with extreme boundary problems.‖
¶93 The discharge summary does not ‖undermine [our]
confidence in the outcome.‖ At best, the record is a double-edged
sword; at worst, it cuts deeply against McCloud. ―Indeed, the
document seems to be affirmative evidence of abuse. And, if
presented at trial, it could have been harmful to McCloud.‖
McCloud, 2019 UT App 35, ¶ 76.
¶94 McCloud also argues that the discharge summary
undermines Victim‘s credibility because Victim reported to police
three weeks later that she had told a counselor, while hospitalized
the previous month, that her father had performed oral sex on her.
To the extent that this argument has any significant exculpatory
value, the evidence that McCloud could have presented had he
obtained the record would have been cumulative of what was
already presented to the jury. See State v. Griffin, 2015 UT 18, ¶ 52,
441 P.3d 1166 (finding that additional evidence identifying a certain
suspect would have been cumulative because the ―primary
eyewitness in the case‖ had already picked that suspect out of a
photo lineup); State v. King, 2012 UT App 203, ¶ 34, 283 P.3d 980(determining counsel‘s failure to seek discovery of mental health
records was not prejudicial when the ―information [was] merely
cumulative of the evidence presented to the jury‖). On cross-
examination, Trial Counsel elicited testimony from Victim that she
had not told anyone ―all of the details‖ until ―September or October
of 2000‖ and, prior to that time, she ―had been seeing a therapist
that knew a little bit more about the touching and stuff like that, but
as for the oral stuff, nobody knew.‖ Thus, Victim‘s own testimony
at trial contradicted what she initially told the police about her
disclosure to hospital staff. And this is the same discreditation of
Victim that McCloud now claims he was unable to accomplish
without the medical record.
32
Cite as: 2021 UT 14Opinion of the Court
¶95 We find that the medical record in question was at best
cumulative of evidence already presented, if not incriminating on
the whole. As such, McCloud has not carried his burden of showing
a ―reasonable probability that, but for counsel‘s [failure to obtain
the record], the result of the proceeding would have been
different.‖
¶96 Because Trial Counsel did not perform deficiently in
refusing to consult or call at trial experts and his failure to obtain all
of Victim‘s medical records did not prejudice the outcome, Trial
Counsel was not ineffective. Therefore, McCloud‘s claims fail
regardless of Appellate Counsel‘s performance.
CONCLUSION
¶97 Today we clarify that the only measure of appellate
counsel‘s obligation to raise certain claims on appeal is
reasonableness under the Strickland standard. Specifically, appellate
counsel will be found deficient for omitting a claim if a reasonable
attorney, acting according to prevailing professional norms and in
light of the circumstances, would have asserted that claim. The
apparentness of the claim from the record, the amount of extra-
record investigation necessary to develop the claim, and the usage
or non-usage of a rule 23B motion are all factors that may influence
the reasonableness analysis, but none of these factors stand alone as
dispositive.
¶98 Turning to McCloud‘s specific claims, we find the PCRA
bars his direct claims against Trial Counsel. So, we view his claims
through the lens of an appellate ineffectiveness claim and find that
any alleged deficient performance could not have prejudiced
McCloud. We affirm the court of appeals‘ decision because Trial
Counsel did not perform deficiently by refusing to utilize experts
and Trial Counsel‘s failure to subpoena all of Victim‘s medical
records did not prejudice McCloud.
33