452 P.3d 519 (Utah App. 2019), 20180116-CA, State v. Galindo

• Citation: 452 P.3d 519, 2019 UT App 171
• Opinion Judge: POHLMAN, Judge:
• Party Name: STATE of Utah, Appellee, v. Patrick Bobby GALINDO Jr., Appellant.
• Attorney: Cherise M. Bacalski and Emily Adams, Attorneys for Appellant Sean D. Reyes and Christopher D. Ballard, Salt Lake City, Attorneys for Appellee
• Judge Panel: Judge Jill M. Pohlman authored this Opinion, in which Judges Gregory K. Orme and Diana Hagen concurred.
• Case Date: October 18, 2019
• Court: Utah Court of Appeals

Page 519

452 P.3d 519 (Utah App. 2019)

2019 UT App 171

STATE of Utah, Appellee,

v.

Patrick Bobby GALINDO Jr., Appellant.

No. 20180116-CA

Court of Appeals of Utah

October 18, 2019

Page 520

[Copyrighted Material Omitted]

Page 521

Second District Court, Ogden Department, The Honorable Ernest W. Jones, No. 161901398

Cherise M. Bacalski and Emily Adams, Attorneys for Appellant

Sean D. Reyes and Christopher D. Ballard, Salt Lake City, Attorneys for Appellee

Judge Jill M. Pohlman authored this Opinion, in which Judges Gregory K. Orme and Diana Hagen concurred.

OPINION

POHLMAN, Judge:

[¶1] Patrick Bobby Galindo Jr. appeals his conviction of attempted murder. Galindo argues that his trial counsel provided constitutionally ineffective assistance by stipulating to Galindo’s competency to stand trial and by failing to talk to one of the psychologists evaluating that competency. He also seeks remand under rule 23B of the Utah Rules of Appellate Procedure for additional findings related to his trial counsel’s failure to talk to the psychologist. We deny his motion to remand and affirm.

BACKGROUND

[¶2] After Galindo shot a man four times, the State charged him with attempted murder and possession of a firearm by a restricted person.¹ Before trial, Galindo’s trial counsel petitioned the district court to evaluate Galindo’s mental competency, requesting that the court order two experts to examine Galindo. In support of the petition, trial counsel stated, "In conversing with Mr. Galindo, in the past several court hearings, Mr. Galindo does not appear to be able to comprehend what is going on. Or. make rational decisions regarding this case." The court granted the petition.

[¶3] The court appointed two psychologists— Dr. Hawks and Dr. Wilkinson— to examine Galindo. Both ultimately concluded that Galindo was competent to stand trial. Dr. Hawks reported that he was not able to speak with Galindo’s trial counsel as part of his evaluation.

[¶4] After receiving the two psychologists’ reports, the court held a competency hearing. Galindo’s trial counsel stipulated to Galindo’s competency in the following exchange: The Court: ... I have two reports, one from Dr. Wilkinson and one from Dr. Hawks. I believe both of those indicate that Mr. Galindo was competent to proceed; is that how you read that?

[Trial counsel]: That’s the way I read it as well. I didn’t personally talk to ... Dr. Hawks ... and confirm that as well.

The Court: Okay.

[Trial counsel]: So given that, I think we’re willing to stipulate to competen[cy] based on those two reports.

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The Court: Okay.

[Trial counsel]: And we’d like to set a preliminary hearing on the matter.

The Court: All right. And [does] the State have any objection to that finding?

[The prosecutor]: No, your Honor, thank you.

The Court: All right. Based on the two reports and stipulation of counsel the Court will enter a finding then that Mr. Galindo is competent to proceed ....

Accordingly, the district court deemed Galindo competent to stand trial.

[¶5] The court thereafter bifurcated trial, with the attempted murder charge proceeding to a jury trial. The jury found Galindo guilty of attempted murder. Galindo then pleaded guilty to possession of a dangerous weapon by a restricted person. Galindo now appeals his attempted murder conviction.²

ISSUES AND STANDARD OF REVIEW

[¶6] On appeal, Galindo raises two claims of ineffective assistance of counsel. First, he contends that "trial counsel provided ineffective assistance when he stipulated to Mr. Galindo’s competency." Second, Galindo contends that "trial counsel provided ineffective assistance when he failed to talk to one of the court-appointed psychologists to discuss Mr. Galindo’s ability to counsel with [trial counsel] and to participate at trial." "When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law." State v. Lopez, 2019 UT App 11, ¶ 22, 438 P.3d 950 (cleaned up).

[¶7] In connection with his second ineffective assistance claim, Galindo requests a remand to supplement the record with additional findings of fact pursuant to rule 23B of the Utah Rules of Appellate Procedure. Rule 23B allows this court to remand a criminal case "to the trial court for entry of findings of fact, necessary for the appellate court’s determination of a claim of ineffective assistance of counsel." Utah R. App. P. 23B(a). "The motion must include or be accompanied by affidavits alleging facts not fully appearing in the record on appeal that show the claimed deficient performance of the attorney." Id. R. 23B(b). "The affidavits must also allege facts that show the claimed prejudice suffered by the appellant as a result of the claimed deficient performance." Id.

ANALYSIS

[¶8] To prove a claim of ineffective assistance of counsel, a defendant must establish both that his "counsel’s performance was deficient" and that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To satisfy the first element, the defendant must show that his counsel’s performance "fell below an objective standard of reasonable professional judgment." State v. Bond, 2015 UT 88, ¶ 59, 361 P.3d 104 (cleaned up). Thus, he "must convince us that, despite the fact that ‘counsel is strongly presumed to have rendered adequate assistance,’ counsel’s acts or omissions nevertheless fell ‘outside the wide range of professionally competent assistance.’ " State v. Nelson, 2015 UT 62, ¶ 14, 355 P.3d 1031 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). To satisfy the second element, the defendant must show that "there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different." Bond, 2015 UT 88, ¶ 59, 361 P.3d 104 (cleaned up). "It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding." Nelson, 2015 UT 62, ¶ 28, 355 P.3d 1031 (cleaned up). Rather, "the likelihood of a different result must be substantial and sufficient to undermine confidence in the outcome." Id. (cleaned up). "Both elements must be present, and if either is lacking, the claim fails and the court need not address the other." Id. ¶ 12.

[¶9] Galindo raises two claims of ineffective assistance of counsel. We conclude that Galindo’s first claim fails because his counsel did

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not perform deficiently and that his second claim fails due to lack of prejudice.

[¶10] First, Galindo contends that his trial counsel rendered ineffective assistance by stipulating to Galindo’s competency. In support, he asserts that it was "not tactical or objectively reasonable" for his...