Strickland test in Utah

2026None of the parties have argued that a different standard should apply, and we conclude that Father’s claim fails even under the Strickland standard. ¶27 To establish ineffective assistance of counsel under Strickland, a party must show: (1) “counsel’s performance was deficient in that it ‘fell below an objective standard of reasonableness’ and (2) ‘the deficient performance prejudiced the defense.’” State v. Scott, 2020 UT 13, ¶ 28 , 462 P.3d 350 (quoting Strickland, 466 U.S. at 687–88).

2026None of the parties have argued that a different standard should apply, and we conclude that Father’s claim fails even under the Strickland standard. ¶27 To establish ineffective assistance of counsel under Strickland, a party must show: (1) “counsel’s performance was deficient in that it ‘fell below an objective standard of reasonableness’ and (2) ‘the deficient performance prejudiced the defense.’” State v. Scott, 2020 UT 13, ¶ 28 , 462 P.3d 350 (quoting Strickland, 466 U.S. at 687–88).

2024Under the circumstances of this case, we reject Parents’ claim of ineffective assistance of counsel. ¶45 In child welfare cases, we employ the “Strickland test to determine a claim for ineffective assistance of counsel.” See In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994) (citing Strickland v. Washington, 466 U.S. 668 (1984)), cert. denied, 890 P.2d 1034 (Utah 1994).

2024Under the circumstances of this case, we reject Parents’ claim of ineffective assistance of counsel. ¶45 In child welfare cases, we employ the “Strickland test to determine a claim for ineffective assistance of counsel.” See In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994) (citing Strickland v. Washington, 466 U.S. 668 (1984)), cert. denied, 890 P.2d 1034 (Utah 1994).

2014The remaining $1,159 in the State’s estimate accounted for the cost of debris removal and damage to the aluminum siding and a window awning caused by Stolfus’s removal of the railing because “the railing went ... up into the eaves[] and was bolted to the side of the house and a few other things.” “Speculation that [exculpatory evidence] exists is not sufficient to meet the prejudice component of the Strickland test.” Parsons v. Barnes, 871 P.2d 516, 526 (Utah 1994). ¶ 7 Stolfus also claims that the only reason he entered his plea was because he felt he had no choice but to “take the plea deal

2014The remaining $1,159 in the State’s estimate accounted for the cost of debris removal and damage to the aluminum siding and a window awning caused by Stolfus’s removal of the railing because “the railing went ... up into the eaves[] and was bolted to the side of the house and a few other things.” “Speculation that [exculpatory evidence] exists is not sufficient to meet the prejudice component of the Strickland test.” Parsons v. Barnes, 871 P.2d 516, 526 (Utah 1994). ¶ 7 Stolfus also claims that the only reason he entered his plea was because he felt he had no choice but to “take the plea deal

2013Accordingly, trial counsel's representation did not fall "below an objective standard of reasonable professional judgment," see State v. Litherland, 2000 UT 76, ¶ 19 , 12 P.3d 92 , and he was therefore not ineffective for failing to withdraw and testify as a witness, see generally State v. Tennyson, 850 P.2d 461, 466 (Utah Ct.App.1993) (noting that failure on either prong of the Strickland analysis will defeat a defendant's claim). 126 Mr. Cunningham also argues that the trial court plainly erred by not sua sponte declaring a mistrial and removing trial counsel.

2013Accordingly, trial counsel's representation did not fall "below an objective standard of reasonable professional judgment," see State v. Litherland, 2000 UT 76, ¶ 19 , 12 P.3d 92 , and he was therefore not ineffective for failing to withdraw and testify as a witness, see generally State v. Tennyson, 850 P.2d 461, 466 (Utah Ct.App.1993) (noting that failure on either prong of the Strickland analysis will defeat a defendant's claim). 126 Mr. Cunningham also argues that the trial court plainly erred by not sua sponte declaring a mistrial and removing trial counsel.

1994For these reasons, we have consistently required defendants claiming ineffective assistance of counsel to affirmatively prove both prongs of the Strickland test to prevail, Fernandez v. Cook, 870 P.2d 870, 874 (Utah 1993); State v. Tyler, 850 P.2d 1250, 1253-54 (Utah 1993); Templin, 805 P.2d at 186-87 ; Bullock, 791 P.2d at 159 ; Carter, 776 P.2d at 893 ; State v. Verde, 770 P.2d 116 , 118 n. 2 (Utah 1989); Bundy, 763 P.2d at 805 ; State v. Lovell, 758 P.2d 909, 913 (Utah 1988); *523 Frame, 723 P.2d at 405 , and we will continue to do so.

1994For these reasons, we have consistently required defendants claiming ineffective assistance of counsel to affirmatively prove both prongs of the Strickland test to prevail, Fernandez v. Cook, 870 P.2d 870, 874 (Utah 1993); State v. Tyler, 850 P.2d 1250, 1253-54 (Utah 1993); Templin, 805 P.2d at 186-87 ; Bullock, 791 P.2d at 159 ; Carter, 776 P.2d at 893 ; State v. Verde, 770 P.2d 116 , 118 n. 2 (Utah 1989); Bundy, 763 P.2d at 805 ; State v. Lovell, 758 P.2d 909, 913 (Utah 1988); *523 Frame, 723 P.2d at 405 , and we will continue to do so.

2024We have held that a meritorious claim is one that “would likely have been successful.” State v. Beames, 2022 UT App 61 , ¶ 13, 511 P.3d 1226 (quotation simplified). 2 But at the other end of the spectrum, “[a] futile motion necessarily fails both the deficiency and prejudice prongs of the Strickland analysis.” State v. Makaya, 2020 UT App 152, ¶ 9 , 476 P.3d 1025 , cert. denied, 481 P.3d 1039 (Utah 2021). ¶15 An investigatory detention is not constitutionally infirm if it is supported by “reasonable, articulable suspicion.” State v. 2.

2024We have held that a meritorious claim is one that “would likely have been successful.” State v. Beames, 2022 UT App 61 , ¶ 13, 511 P.3d 1226 (quotation simplified). 2 But at the other end of the spectrum, “[a] futile motion necessarily fails both the deficiency and prejudice prongs of the Strickland analysis.” State v. Makaya, 2020 UT App 152, ¶ 9 , 476 P.3d 1025 , cert. denied, 481 P.3d 1039 (Utah 2021). ¶15 An investigatory detention is not constitutionally infirm if it is supported by “reasonable, articulable suspicion.” State v. 2.

2020See e.g., State v. Clark, 2004 UT 25, ¶ 6 , 89 P.3d 162 ; State v. Garcia, 2017 UT App 200, ¶ 19 , 407 P.3d 1061 ; State v. Allgood, 2017 UT App 92, ¶ 30 , 400 P.3d 1088 ; State v. Bryant, 965 P.2d 539 , 542–43 (Utah Ct. App. 1998). ¶56 We recently addressed this practice and its potential to distort the Strickland analysis.

2020See e.g., State v. Clark, 2004 UT 25, ¶ 6 , 89 P.3d 162 ; State v. Garcia, 2017 UT App 200, ¶ 19 , 407 P.3d 1061 ; State v. Allgood, 2017 UT App 92, ¶ 30 , 400 P.3d 1088 ; State v. Bryant, 965 P.2d 539 , 542–43 (Utah Ct. App. 1998). ¶56 We recently addressed this practice and its potential to distort the Strickland analysis.

2025And “even where a court cannot conceive of a sound strategic reason for counsel’s challenged conduct, it does not automatically follow that counsel was deficient. . . . [T]he ultimate question is always whether, considering all the circumstances, counsel’s acts or omissions were objectively unreasonable.” State v. Scott, 2020 UT 13, ¶ 36 , 462 P.3d 350 ; see also State v. Ray, 2020 UT 12 , ¶¶ 34–36, 469 P.3d 871 . ¶8 To establish prejudice under the second prong of the Strickland test, McCraw must also demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the res

2025And “even where a court cannot conceive of a sound strategic reason for counsel’s challenged conduct, it does not automatically follow that counsel was deficient. . . . [T]he ultimate question is always whether, considering all the circumstances, counsel’s acts or omissions were objectively unreasonable.” State v. Scott, 2020 UT 13, ¶ 36 , 462 P.3d 350 ; see also State v. Ray, 2020 UT 12 , ¶¶ 34–36, 469 P.3d 871 . ¶8 To establish prejudice under the second prong of the Strickland test, McCraw must also demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the res

2017He then concludes, without reasoned analysis, that because “the State’s evidence was so weak, there is much more than a reasonable probability that, but for the errors, there would have been a different result.” “This is merely rephrasing that which must ultimately be shown to satisfy the second prong of the Strickland test but is clearly insufficient to affirmatively demonstrate a reasonable probability that the trial result would have been different if counsel had not performed defi-ciently.” See Fernandez v. Cook, 870 P.2d 870, 877 (Utah 1993). ¶38 In his reply brief, Allgood contends that

2017He then concludes, without reasoned analysis, that because “the State’s evidence was so weak, there is much more than a reasonable probability that, but for the errors, there would have been a different result.” “This is merely rephrasing that which must ultimately be shown to satisfy the second prong of the Strickland test but is clearly insufficient to affirmatively demonstrate a reasonable probability that the trial result would have been different if counsel had not performed defi-ciently.” See Fernandez v. Cook, 870 P.2d 870, 877 (Utah 1993). ¶38 In his reply brief, Allgood contends that

2000See State v. Templin, 805 P.2d 182, 188 (Utah 1990); see also State v. Maestas, 984 P.2d 376, 381 (Utah 1999). ¶ 25 In the instant case, it is clear that the second part of the Strickland test has also been met.

2000See State v. Templin, 805 P.2d 182, 188 (Utah 1990); see also State v. Maestas, 984 P.2d 376, 381 (Utah 1999). ¶ 25 In the instant case, it is clear that the second part of the Strickland test has also been met.

2019“Because both prongs of the Strickland test must be met to establish ineffective assistance of counsel, we need not always address both prongs.” State v. Goode, 2012 UT App 285 , ¶ 7 n.2, 288 P.3d 306 ; accord Menzies v. State, 2014 UT 40, ¶ 78 , 344 P.3d 581 .

2019“Because both prongs of the Strickland test must be met to establish ineffective assistance of counsel, we need not always address both prongs.” State v. Goode, 2012 UT App 285 , ¶ 7 n.2, 288 P.3d 306 ; accord Menzies v. State, 2014 UT 40, ¶ 78 , 344 P.3d 581 .

2021Citing 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

2021Citing 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

2025“Because both prongs of the Strickland test must be met to establish ineffective assistance of counsel, we need not always address both prongs.” State v. Fleming, 2019 UT App 181, ¶ 9 , 454 P.3d 862 (cleaned up).

2025“Because both prongs of the Strickland test must be met to establish ineffective assistance of counsel, we need not always address both prongs.” State v. Fleming, 2019 UT App 181, ¶ 9 , 454 P.3d 862 (cleaned up).

2021“Because both prongs of the Strickland test must be met to establish ineffective assistance of counsel, we need not always address both prongs.” State v. Goode, 2012 UT App 285 , ¶ 7 n.2, 288 P.3d 306 . ¶21 To meet the first prong, a defendant must establish that “trial counsel’s performance was deficient in that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” State v. Boyer, 2020 UT App 23, ¶ 62 , 460 P.3d 569 (cleaned up).

2021“Because both prongs of the Strickland test must be met to establish ineffective assistance of counsel, we need not always address both prongs.” State v. Goode, 2012 UT App 285 , ¶ 7 n.2, 288 P.3d 306 . ¶21 To meet the first prong, a defendant must establish that “trial counsel’s performance was deficient in that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” State v. Boyer, 2020 UT App 23, ¶ 62 , 460 P.3d 569 (cleaned up).

2021Strickland‘s deficiency prong ¶22 The first prong of the Strickland test asks whether the defendant has shown ―that his counsel rendered a deficient performance in some demonstrable manner, which performance fell below an objective standard of reasonable professional judgment.‖ Archuleta v. Galetka, 2011 UT 73, ¶ 38 , 267 P.3d 232 . (citation omitted); see Strickland, 466 U.S. at 687 .

2021Strickland‘s deficiency prong ¶22 The first prong of the Strickland test asks whether the defendant has shown ―that his counsel rendered a deficient performance in some demonstrable manner, which performance fell below an objective standard of reasonable professional judgment.‖ Archuleta v. Galetka, 2011 UT 73, ¶ 38 , 267 P.3d 232 . (citation omitted); see Strickland, 466 U.S. at 687 .

2020See e.g., State v. Clark, 2004 UT 25, ¶ 6 , 89 P.3d 162 ; State v. Garcia, 2017 UT App 200, ¶ 19 , 407 P.3d 1061 ; State v. Allgood, 2017 UT App 92, ¶ 30 , 400 P.3d 1088 ; State v. Bryant, 965 P.2d 539 , 542–43 (Utah Ct. App. 1998). ¶56 We recently addressed this practice and its potential to distort the Strickland analysis.

2020See e.g., State v. Clark, 2004 UT 25, ¶ 6 , 89 P.3d 162 ; State v. Garcia, 2017 UT App 200, ¶ 19 , 407 P.3d 1061 ; State v. Allgood, 2017 UT App 92, ¶ 30 , 400 P.3d 1088 ; State v. Bryant, 965 P.2d 539 , 542–43 (Utah Ct. App. 1998). ¶56 We recently addressed this practice and its potential to distort the Strickland analysis.

2013See Hill v. Lockhart, 474 U.S. 52, 58 , 106 S.Ct. 366 , 88 L.Ed.2d 203 (1985) (holding that the Strickland test "applies to challenges to guilty pleas based on ineffective assistance of counsel").

2013See Hill v. Lockhart, 474 U.S. 52, 58 , 106 S.Ct. 366 , 88 L.Ed.2d 203 (1985) (holding that the Strickland test "applies to challenges to guilty pleas based on ineffective assistance of counsel").

2026“The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011). 8 In the __________________________________________________________ 8 Fenstermaker argues, citing language from this court’s decision in State v. Knight, 734 P.2d 913, 920 (Utah 1987), that the Strickland standard falls at “some point substantially short” of “more probable than not.” Knight addressed the prejudice standard under rule 30 of the Utah Rules of Criminal Procedure, which we have long interpreted using terms equivalent to the Strickland standard.

2026“The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011). 8 In the __________________________________________________________ 8 Fenstermaker argues, citing language from this court’s decision in State v. Knight, 734 P.2d 913, 920 (Utah 1987), that the Strickland standard falls at “some point substantially short” of “more probable than not.” Knight addressed the prejudice standard under rule 30 of the Utah Rules of Criminal Procedure, which we have long interpreted using terms equivalent to the Strickland standard.

2023See State v. Gallegos, 2020 UT 19, ¶ 47 , 463 P.3d 641 (“The Strickland inquiry 20190678-CA 28 2023 UT App 44 State v. Aiken is objective, not subjective.”).

2023See State v. Gallegos, 2020 UT 19, ¶ 47 , 463 P.3d 641 (“The Strickland inquiry 20190678-CA 28 2023 UT App 44 State v. Aiken is objective, not subjective.”).

2020“The standard for evaluating whether appellate counsel is ineffective is the same Strickland standard used to determine whether trial counsel is ineffective.” Kell v. State, 2008 UT 62, ¶ 42 , 194 P.3d 913 .

2020“The standard for evaluating whether appellate counsel is ineffective is the same Strickland standard used to determine whether trial counsel is ineffective.” Kell v. State, 2008 UT 62, ¶ 42 , 194 P.3d 913 .

2024Id. at 92 . ¶79 In assessing attorneys’ conduct in light of the Sixth Amendment’s reasonableness standard, “[c]ourts frequently rely on the professional standards established by the [American Bar Association] when determining the relevant professional norms under the first prong of the Strickland analysis.” Menzies v. Galetka, 2006 UT 81, ¶ 90 , 150 P.3d 480 ; see also Strickland, 466 U.S. at 688 (recognizing that “[p]revailing norms of practice as reflected in American Bar Association standards and the like . . . are guides to determining what is reasonable”).

2024Id. at 92 . ¶79 In assessing attorneys’ conduct in light of the Sixth Amendment’s reasonableness standard, “[c]ourts frequently rely on the professional standards established by the [American Bar Association] when determining the relevant professional norms under the first prong of the Strickland analysis.” Menzies v. Galetka, 2006 UT 81, ¶ 90 , 150 P.3d 480 ; see also Strickland, 466 U.S. at 688 (recognizing that “[p]revailing norms of practice as reflected in American Bar Association standards and the like . . . are guides to determining what is reasonable”).

2021Fourth, Father argues that trial counsel introduced or emphasized harmful evidence, including that Father had $7,000 in savings and had paid his own attorney fees and that Father had physically disciplined his older child several years earlier. ¶35 “To prevail on an ineffective assistance of counsel claim, [Father] must show that (1) ‘counsel’s performance was deficient’ and (2) this ‘deficient performance prejudiced the defense.’” See In re C.M.R., 2020 UT App 114, ¶ 19 , 473 P.3d 184 (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)); see also In re E.H., 880 P.2d 11, 13 (Utah Ct.

2021Fourth, Father argues that trial counsel introduced or emphasized harmful evidence, including that Father had $7,000 in savings and had paid his own attorney fees and that Father had physically disciplined his older child several years earlier. ¶35 “To prevail on an ineffective assistance of counsel claim, [Father] must show that (1) ‘counsel’s performance was deficient’ and (2) this ‘deficient performance prejudiced the defense.’” See In re C.M.R., 2020 UT App 114, ¶ 19 , 473 P.3d 184 (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)); see also In re E.H., 880 P.2d 11, 13 (Utah Ct.

2025See State v. Carter, 2022 UT App 9, ¶ 30 , 504 P.3d 179 (“A futile motion necessarily fails both the deficiency and prejudice prongs of the Strickland analysis because it is not unreasonable for counsel to choose not to make a motion that would not have been granted, and forgoing such a motion does not prejudice the outcome.” (cleaned up)), aff’d, 2023 UT 18 , 535 P.3d 819 .

2025See State v. Carter, 2022 UT App 9, ¶ 30 , 504 P.3d 179 (“A futile motion necessarily fails both the deficiency and prejudice prongs of the Strickland analysis because it is not unreasonable for counsel to choose not to make a motion that would not have been granted, and forgoing such a motion does not prejudice the outcome.” (cleaned up)), aff’d, 2023 UT 18 , 535 P.3d 819 .

2022A futile objection “necessarily fails both the deficiency and prejudice prongs of the Strickland analysis because it is not unreasonable for counsel to choose not to make [an objection] that would not have been granted, and forgoing such [an objection] does not prejudice the outcome.” See State v. Makaya, 2020 UT App 152, ¶ 9 , 476 P.3d 1025 ; see also State v. Alzaga, 2015 UT App 133, ¶ 73 , 352 P.3d 107 (“The failure of counsel to make motions or objections which would be futile if raised does not constitute ineffective assistance.” (cleaned up)). ¶32 Soto challenges two out-of-court stateme

2022A futile objection “necessarily fails both the deficiency and prejudice prongs of the Strickland analysis because it is not unreasonable for counsel to choose not to make [an objection] that would not have been granted, and forgoing such [an objection] does not prejudice the outcome.” See State v. Makaya, 2020 UT App 152, ¶ 9 , 476 P.3d 1025 ; see also State v. Alzaga, 2015 UT App 133, ¶ 73 , 352 P.3d 107 (“The failure of counsel to make motions or objections which would be futile if raised does not constitute ineffective assistance.” (cleaned up)). ¶32 Soto challenges two out-of-court stateme