Ineffective Assistance of Counsel Appeals in Utah: The Strickland Standard

The Sixth Amendment guarantees every criminal defendant the effective assistance of counsel. When that guarantee is violated — when trial counsel’s performance falls below constitutional minimums and the defendant is convicted as a result — a Utah criminal appeal can succeed on ineffective assistance of counsel (IAC) grounds, even if every other aspect of the trial was conducted properly.

IAC is one of the most litigated issues in Utah criminal appeals. It is also one of the most frequently misunderstood — because the standard is exacting, the bar for “prejudice” is demanding, and the evidence needed to prove the claim is often not in the trial record at all. This post explains the Strickland test, how Utah courts apply it, and the critical procedural mechanism that allows defendants to supplement the record with evidence the trial court never saw.

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The Strickland Test: Two Required Elements

Every IAC claim in Utah is governed by the two-part test established in Strickland v. Washington, 466 U.S. 668 (1984), and consistently applied by Utah appellate courts:

Prong 1: Deficient Performance. Counsel’s representation fell below an objective standard of reasonableness — below what “a reasonably competent attorney” would have done under the circumstances.

Prong 2: Prejudice. There is a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different. A “reasonable probability” means a probability sufficient to undermine confidence in the outcome — not a certainty of a different result, but more than a remote possibility.

Both prongs must be established. A court can reject an IAC claim by finding either element absent, without reaching the other. In practice, Utah courts frequently deny IAC claims by assuming deficient performance and then finding no prejudice — which is analytically permissible and strategically important to understand when framing the brief.

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What “Deficient Performance” Looks Like in Practice

The deficient performance prong requires showing counsel’s conduct fell below the range of choices a reasonably competent attorney could have made. This is deliberately not a perfection standard — strategic choices, even ones that turn out badly, do not constitute deficient performance if they reflect reasonable professional judgment at the time.

The key question is whether any objectively reasonable attorney could have made the same choice. Courts give trial counsel wide deference on decisions that could be characterized as strategy: which witnesses to call, how to structure cross-examination, whether to seek a particular jury instruction. Where IAC claims most commonly succeed on the deficient performance prong is when the conduct falls entirely outside the range of defensible strategy — failing to investigate a viable defense, failing to object to clearly inadmissible evidence with no conceivable strategic reason for the silence, advising a client to reject a favorable plea without investigating the facts, or proposing jury instructions that omit required elements of the charged offense (as in State v. Parkinson, 2018 UT App 62, addressed in Lotus’s Opinions section).

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What “Prejudice” Requires

The prejudice prong is where most IAC claims fail in Utah. “Reasonable probability” is a specific legal standard, not an intuitive one — and courts apply it rigorously.

To establish prejudice, the defendant must show that the specific deficiency counsel committed had a meaningful effect on the outcome. In a trial context, this means showing that but for the error, the jury likely would have found a reasonable doubt. In a plea context, it means showing that but for counsel’s deficient advice, the defendant would have received a better outcome — either through a more favorable plea or through a trial with a plausible chance of acquittal.

The Utah Court of Appeals in State v. Parkinson clarified an important limit on prejudice in the jury instruction context: deficient jury instructions resulting from counsel’s deficient performance require a showing of prejudice rather than automatic reversal. Even where counsel proposed instructions that omitted required mental state elements, if the evidence at trial was overwhelming on those elements, the defendant cannot show that the instructional deficiency changed the result. The prejudice analysis is always case-specific, always record-dependent.

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The IAC Challenge Unique to Criminal Cases: Evidence Not in the Record

The most practically significant procedural challenge in IAC claims is that the evidence necessary to prove them is often not in the trial record. Trial counsel’s decision-making process — why she chose not to call a particular witness, what investigation she did or did not conduct, what the client told her — is not reflected in the transcript or the exhibits. It exists only in counsel’s mind and files, neither of which are part of the appellate record.

On a direct appeal, Utah appellate courts are limited to the trial record. They cannot accept or evaluate evidence outside it. This creates an impossible situation for an IAC claim that depends on showing what counsel should have done differently — because the evidence of what counsel actually did (or did not do) is not in the record.

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The Solution: URAP Rule 23B

URAP Rule 23B is the procedural mechanism that addresses exactly this problem. It allows a criminal defendant to file a motion to remand for an evidentiary hearing on IAC claims — and to attach to that motion the evidence that was not in the trial record.

The Rule 23B motion is filed concurrently with the appellant’s opening brief — not separately, not later. The motion has attached to it “any missing evidence that the trial court should have considered, along with affidavits attesting the evidence’s accuracy.” If the motion is granted, the appellate court remands the case to the trial court for an evidentiary hearing, at which trial counsel will typically be called to testify about their decisions. The trial court then makes findings, which come back up to the appellate court for review.

Rule 23B is not available for every IAC claim — only for claims that require evidence outside the trial record. An IAC claim that can be fully evaluated on the existing record — for example, a claim that counsel failed to object to something clearly visible in the transcript — does not need a Rule 23B remand and should be argued directly in the brief.

For a detailed guide to filing and litigating a Rule 23B motion, see our dedicated post on the URAP 23B motion in Utah criminal appeals.

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The Alternative: Post-Conviction Relief

For defendants who have already completed a direct appeal — or whose direct appeal concluded without fully addressing IAC — the Post-Conviction Remedies Act (PCRA), Utah Code Title 78B, Chapter 9, provides a separate avenue for IAC claims. PCRA proceedings include a full evidentiary hearing, without the record limitations of a direct appeal. They also face their own procedural requirements, including timeliness rules. We cover this avenue in detail in our post on post-conviction relief in Utah.

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Standard of Review

IAC claims are reviewed by Utah appellate courts for correctness — no deference is given to the trial court’s legal conclusions on whether counsel performed deficiently or whether prejudice was established. This is de novo review, meaning the appellate court applies the Strickland test fresh based on the record. However, the underlying factual findings — what counsel actually did, what the defendant was told, what investigation was conducted — are reviewed for clear error, meaning those factual determinations receive deference once established at an evidentiary hearing.

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KEY RULE

The Strickland Two-Part Test for IAC — Applied in Utah

IAC requires: (1) deficient performance — counsel’s representation fell below what an objectively reasonable attorney would have done, without a plausible strategic justification; and (2) prejudice — a reasonable probability that the outcome would have been different but for counsel’s deficiency. Both elements are required. Evidence outside the trial record can be introduced through a concurrent Rule 23B motion to remand, filed with the opening brief. IAC is reviewed de novo by the appellate court. Strickland v. Washington, 466 U.S. 668 (1984); State v. Parkinson, 2018 UT App 62.

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Evaluating an IAC Claim

If you believe trial counsel made a specific error that changed the outcome of your case, the analysis starts with the trial record — what the transcript shows counsel did and did not do — and the question of whether any reasonable attorney could have made the same choice. Lotus Appellate Law handles IAC appeals and Rule 23B proceedings throughout Utah. Contact us to discuss your case.