Can defendants raise ineffective assistance claims in post-conviction proceedings after direct appeal? Modes v. State Explained

The Utah Court of Appeals in Modes v. State provides important guidance on the procedural bars that limit what claims defendants can raise in post-conviction proceedings after their direct appeals are complete.

Background and Facts

Frank Modes was convicted of aggravated sexual abuse of a child after a bench trial. On direct appeal, he challenged the admission of prior bad acts evidence and claimed ineffective assistance of trial counsel on three specific grounds. The Court of Appeals affirmed his conviction in 2020. Modes then filed a post-conviction relief petition asserting fifteen different claims of ineffective assistance of trial counsel, but notably did not allege that his appellate counsel was ineffective.

Key Legal Issues

The central issue was whether Modes’s post-conviction claims were procedurally barred under Utah Code § 78B-9-106(1)(b)-(c), which prevents defendants from raising claims in post-conviction proceedings that either were “raised or addressed” on direct appeal or “could have been but were not raised” on direct appeal.

Court’s Analysis and Holding

The court systematically analyzed all fifteen claims and found that five claims had actually been raised and addressed on direct appeal, making them clearly barred. For the remaining ten claims, the court applied the “could have been raised” test, determining that a claim could have been raised when the defendant or counsel “is aware of the essential factual basis for asserting it.” The court found that Modes and his appellate counsel knew the factual bases for all these claims during the direct appeal.

Importantly, the court noted that claims barred under this provision can still be raised if “the failure to raise that ground was due to ineffective assistance of counsel” under Utah Code § 78B-9-106(3)(a). However, since Modes never alleged ineffective assistance of appellate counsel in his petition, this exception did not apply.

Practice Implications

This decision underscores the critical importance of comprehensive appellate advocacy. Practitioners must carefully consider whether to raise ineffective assistance of appellate counsel claims when filing post-conviction petitions, particularly when trial counsel ineffectiveness claims were not fully developed on direct appeal. The case also demonstrates that claims dismissed for insufficient development on direct appeal are still considered “raised” for purposes of the procedural bar, emphasizing the need for thorough record development through Rule 23B motions when necessary.