Opinion
Case No. 20000448-CA.
Filed November 16, 2000. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable William W. Barrett.
Stephan R. Cook, Orem, for Appellant.
Don M. Wrye, Salt Lake City, for Appellee.
Before Judges Jackson, Billings, and Orme.
MEMORANDUM DECISION
A person is not eligible for post-conviction relief on any ground that was raised at trial or on appeal or that could have been raised at trial or on appeal. See Utah Code Ann. § 78-35a-106(1) (1996). The exception to this rule, which Wood's counsel is attempting to invoke, is if the issues sought to be raised by post-conviction petition were not raised at trial or on appeal "due to ineffective assistance of counsel."Id. § 78-35a-106(2). However, like the trial court, we cannot conclude that Wood's counsel was ineffective in representing her during the first appeal.
First, Wood's counsel was not ineffective merely because his freedom of expression argument proved unsuccessful. See Salt Lake City v. Wood, 1999 UT App 323, 991 P.2d 595 (rejecting freedom of expression claim). Second, the fact that counsel was able to obtain dismissals for other defendants, following the issuance of our decision in Wood, does not mean he performed ineffectively for Wood. It was, as counsel said, "a test case." Third, Wood was a split decision in which one of three judges of this court determined that counsel had raised arguments sufficient to prove the subject ordinance was unconstitutional. Fourth, there is not enough support for the general assertion that Wood's counsel was ineffective. To establish ineffective assistance of counsel, it must be shown that (1) trial counsel rendered deficient performance which fell below an objective standard of reasonable professional judgment, and (2) counsel's deficient performance prejudiced her. See State v. Arguelles, 921 P.2d 439, 441 (Utah 1996) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984)). Counsel fails to identify specific acts or omissions that fell outside the wide range of professional assistance and illustrate that, absent those acts or omissions, there is a "`reasonable probability'" of a more favorable result. Parsons v. Barnes, 871 P.2d 516, 522 (Utah 1994) (quotingStrickland, 466 U.S. at 694, 104 S.Ct. 2068).
Although it would normally be more appropriate for substitute counsel to make a claim of ineffective assistance, we are not convinced that such a claim, even if raised by another attorney, would have been successful.
Accordingly, the trial court's second order dismissing Wood's petition for post-conviction relief is affirmed.
Norman H. Jackson, Associate Presiding Judge, Judith M. Billings, Judge.
My colleagues' decision baffles me. Mr. McCullough represents that he had other clients charged with the same offense, under essentially the same circumstances, as appellant in this case. Somehow, charges against all the others came to be dismissed, while appellant stands convicted. While that does not conclusively show that counsel must have been ineffective in his representation of appellant, it surely suggests that he might have been.
More importantly, I think it is indefensible to summarily dispose of the claim on its merits, while appellant continues to be represented by the very attorney whose representation is in issue. Under the circumstances, justice requires that we withhold our rush to judgment at least long enough to permit the appeal to be briefed by new counsel.
I would deny the motion for summary disposition and permit the case to proceed to the briefing stage.
Gregory K. Orme, Judge.