Ineffective Assistance of Appellate Counsel in Utah: A PCRA-Exclusive Ground

Ineffective assistance of trial counsel and ineffective assistance of appellate counsel are both cognizable claims under the Sixth Amendment and under Utah’s PCRA — but they operate through entirely different procedural vehicles. Trial IAC can be raised on direct appeal (through a URAP Rule 23B motion to remand) or in a PCRA petition. Appellate IAC cannot be raised on the same direct appeal where the deficiency occurred — by definition, it is a claim that can only be evaluated after the direct appeal has concluded. The PCRA is the exclusive vehicle.

Under Utah Code § 78B-9-104(1)(f), post-conviction relief is available when appellate counsel provided ineffective assistance during the direct appeal. This ground is available regardless of whether the defendant had retained or appointed appellate counsel and regardless of whether the defendant personally understood the deficiency at the time.

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The Strickland Standard Applied to Appellate Counsel

The two-part Strickland v. Washington test governs IAC of appellate counsel as well as trial counsel:

Deficient performance. Appellate counsel’s representation fell below an objective standard of reasonableness — below what a competent appellate attorney would have done.

Prejudice. There is a reasonable probability that, but for appellate counsel’s deficient performance, the outcome of the appeal would have been different — meaning the appeal would have succeeded on the omitted issue.

The prejudice analysis in the appellate IAC context requires the PCRA court to evaluate the merits of the issue that appellate counsel failed to raise. Was it a strong issue? Would it have succeeded? Would a reasonable appellate attorney have recognized it as a viable ground for appeal and raised it? If yes to all three, and counsel failed to raise it, the performance may be deficient and the prejudice established.

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What “Deficient Performance” Means for Appellate Counsel

The Supreme Court addressed the specific standards for appellate IAC in Smith v. Robbins, 528 U.S. 259 (2000). Appellate counsel is not obligated to raise every non-frivolous argument on appeal — experienced appellate attorneys routinely cull weak arguments to focus briefing on the strongest grounds, because raising too many issues can dilute the force of the best ones. This strategic choice is entitled to deference.

But culling is different from omission. When appellate counsel failed to raise an issue not because it was weak relative to other issues actually raised, but because counsel did not recognize it, did not understand its legal significance, or simply neglected to include it, the omission may fall below the standard of reasonable professional judgment.

Common deficient performance scenarios for appellate counsel:

Failure to raise a strong preserved issue. A constitutional violation that was properly preserved at trial — an unlawful search, a Confrontation Clause error, a Miranda violation — that appellate counsel simply failed to brief. If the issue would have had a reasonable probability of success on appeal, the omission may be deficient.

Failure to recognize a viable sentencing argument. Appellate counsel sometimes correctly identifies issues about the conviction but fails to evaluate the sentence separately. Restitution errors, consecutive sentencing without findings, Apprendi violations, and facial illegality of the sentence are sometimes missed by counsel focused on conviction issues.

Deficient briefing of a preserved issue. Sometimes counsel raised the right issue but briefed it so inadequately — without citation to the record, without legal analysis, without engaging the standard of review — that the brief was functionally useless and the court rejected the argument based on its inadequate presentation rather than its underlying merit.

Failure to seek certiorari on a strong issue. When the Court of Appeals rules against the defendant on a significant legal question that presents a genuine certiorari issue — a question of first impression, a conflict with prior authority, or a significant constitutional question — and appellate counsel fails to petition for certiorari without a strategic explanation, that omission may constitute deficient performance.

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Prejudice: Evaluating the Omitted Issue

The prejudice analysis requires the PCRA court to assess what would have happened if appellate counsel had raised the omitted issue. This requires:

Evaluating the issue’s merits. Would the Court of Appeals have granted relief on this issue if it had been properly briefed? This is a legal question the PCRA court evaluates de novo — it applies the same standard of review the Court of Appeals would have applied and determines whether the outcome would likely have been different.

Establishing that the issue was stronger than what was raised. If appellate counsel raised ten issues and omitted one, the omitted issue must be evaluated in context — was it a stronger issue than those that were raised? An attorney who raises weaker issues while omitting stronger ones may have made a choice that falls below reasonable professional standards.

Standard of review matters. An omitted issue reviewed de novo on appeal — a constitutional question, a statutory interpretation question — is a stronger candidate for prejudice than an omitted issue reviewed only for abuse of discretion, because de novo review gives the appellate court more latitude to find error.

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The IAC of Appellate Counsel as a Gateway to Barred Claims

One of the most important functions of an appellate IAC claim in the PCRA is its role as a gateway to claims that would otherwise be procedurally barred. Under Utah Code § 78B-9-106, claims that could have been raised on direct appeal but were not are generally barred. But when the reason they were not raised is appellate counsel’s deficient performance, the appellate IAC claim provides the path: the petitioner argues that appellate counsel should have raised the underlying issue, that the failure to do so was deficient, and that prejudice exists because the issue would have succeeded.

This gateway function means that a strong underlying legal claim — a preserved constitutional violation, a sentencing error, a statutory claim — can sometimes be presented in the PCRA through an appellate IAC frame even when the direct presentation of the claim would be procedurally barred.

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KEY RULE

IAC of Appellate Counsel Under Utah Code § 78B-9-104(1)(f)

The PCRA is the exclusive vehicle for challenging direct-appeal counsel’s performance — it cannot be raised on the same appeal where the deficiency occurred. The Strickland standard applies: deficient performance (below what a competent appellate attorney would have done) and prejudice (a reasonable probability the omitted issue would have succeeded on appeal). Smith v. Robbins, 528 U.S. 259 (2000). Strategic issue culling is entitled to deference; overlooking strong issues is not. Appellate IAC also serves as a gateway for claims otherwise barred by the could-have-been-raised doctrine — establishing that counsel’s deficiency caused the failure to raise the claim below.

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Evaluating Whether Appellate Counsel Missed Something Important

The starting point is the direct appeal brief: what issues were raised, what issues were omitted, and were there strong preserved arguments that were not included? Comparing the trial record against the direct appeal brief often reveals significant omissions. Lotus Appellate Law evaluates appellate IAC claims as part of every PCRA assessment. Contact us to determine whether appellate counsel’s performance provides a viable PCRA ground.