McCloud v. State

• Decision Date: 14 March 2019
• Docket Number: No. 20170148-CA,20170148-CA
• Citation: 440 P.3d 775
• Court: Utah Court of Appeals
• Parties: Larry MCCLOUD, Appellant, v. STATE of Utah, Appellee.

440 P.3d 775

Larry MCCLOUD, Appellant,

v.STATE of Utah, Appellee.

No. 20170148-CA

Court of Appeals of Utah.

Filed March 14, 2019

Andrew Parnes and Brent A. Gold, Attorneys for Appellant

Sean D. Reyes and Erin Riley, Salt Lake City, Attorneys for Appellee

Judge Kate Appleby authored this Opinion, in which Judges Michele M. Christiansen Forster and Ryan M. Harris concurred.

Opinion

APPLEBY, Judge:

¶1 Larry McCloud appeals the denial of his petition for postconviction relief. A jury convicted McCloud of several crimes related to his sexual abuse of his daughter (Victim). On direct appeal, this court affirmed his convictions. McCloud then filed a petition for post-conviction relief, arguing that his trial attorney (Trial Counsel) provided ineffective assistance by failing to consult expert witnesses and failing to obtain all of Victim’s medical records before trial. The post-conviction court determined that McCloud’s claims of Trial Counsel’s ineffective assistance were procedurally barred because McCloud could have raised them on direct appeal. McCloud then amended his petition, arguing that his appellate attorney (Appellate Counsel) rendered ineffective assistance by failing to raise on appeal his claims of Trial Counsel’s ineffective assistance. The post-conviction court dismissed McCloud’s amended petition on the merits, concluding that Appellate Counsel’s omission of the claims on appeal did not constitute constitutionally ineffective assistance of counsel.

¶2 McCloud raises two issues. First, he argues the postconviction court erred in determining that his claims of Trial Counsel’s ineffective assistance were procedurally barred. Second, he argues that Trial Counsel provided ineffective assistance by failing to consult expert witnesses and failing to obtain all of Victim’s medical records before trial. We conclude that the post-conviction court erred in determining that McCloud’s claims of ineffective assistance of Trial Counsel were procedurally barred. But we affirm its denial of McCloud’s petition for post-conviction relief, concluding that he has not shown he received constitutionally ineffective assistance from Trial Counsel.

BACKGROUND

¶3 When Victim was five years old, McCloud forced her to shower with him and asked her to touch his penis.¹ And on multiple occasions while Victim was between the ages of seven and ten, McCloud climbed into her bed, opened her legs, and penetrated her vagina with his tongue.²

¶4 Victim reported the abuse when she was sixteen. Based on her allegations, the State charged McCloud with one count of aggravated sexual abuse of a child—for the shower incident—and six counts of sodomy upon a child—for the subsequent incidents. Before trial, McCloud requested that Trial Counsel retain a false memory expert and a psychosexual profiling expert. But Trial Counsel did not consult any experts for the defense.

¶5 The State’s case against McCloud primarily relied on Victim’s testimony. At trial, she detailed the incidents of abuse for each count and, for some counts, identified specific dates on which the incidents occurred. The State did not present expert testimony.

¶6 As part of the defense, Trial Counsel presented McCloud’s day planners and calendar notes as well as a "videotape taken at Christmas" to prove that McCloud and Victim were not together on some of the dates when the abuse allegedly occurred. Victim responded to this evidence by saying that, although she may have been confused about the specific dates, she was not confused about the abuse itself.

¶7 Further, Trial Counsel elicited testimony that, before reporting the abuse, Victim told her mother and various therapists and psychologists about showering with McCloud when she was young, but she did not report anything "inappropriate" until she was sixteen. On cross-examination, Victim admitted that, despite meeting "with a number of different people," she did not tell anyone "all the details" until "September or October of 2000." She specifically mentioned meeting with a psychiatrist or psychologist in August 2000—just weeks before reporting the abuse—and said she did not reveal all "the details" then.

¶8 Trial Counsel also highlighted group therapy sessions in which Victim could have reported the abuse, and mentioned Victim’s medical history, including depression, asthma

, and a hospitalization resulting from suicidal feelings. He elicited testimony describing "deteriorated" relationships between McCloud and Victim and McCloud and Victim’s mother, and suggested that reporting the abuse was a way for Victim to "get back at her father." In closing argument, Trial Counsel asserted that Victim was "pushed" into making false allegations by various people, including her mother.

¶9 After reviewing the evidence and arguments, the jury convicted McCloud on the count of aggravated sexual abuse of a child³ and three of the counts of sodomy upon a child, but acquitted him of the remaining three counts of sodomy upon a child.

¶10 After trial, McCloud hired Appellate Counsel to appeal his convictions. Appellate Counsel raised various claims of ineffective assistance of counsel, but did not raise claims regarding Trial Counsel’s failure to consult expert witnesses or obtain exculpatory evidence, or any other claims that would have required an "extra-record investigation." Instead, she limited the appeal to issues that could be determined on the facts "contained in the record." She did not consider the "extra-record" claims to be without merit, but thought McCloud had "a good appeal already" and could raise "extra-record" issues in a petition for post-conviction relief. Appellate Counsel knew she could move to supplement the record on appeal under rule 23B of the Utah Rules of Appellate Procedure, but believed such a motion was "permissive and not required." See Utah R. App. P. 23B. And she did not think failing to file a rule 23B motion would bar McCloud’s claims for post-conviction relief.

¶11 This court affirmed McCloud’s convictions. State v. McCloud , 2005 UT App 466, ¶ 1, 126 P.3d 775, cert. denied , 133 P.3d 437 (Utah 2006). Following our decision, McCloud filed a petition for post-conviction relief, arguing that Trial Counsel provided ineffective assistance by failing to consult expert witnesses and failing to obtain all of Victim’s medical records related to her reporting—or delay in reporting—the abuse. He asserted that experts could have assisted Trial Counsel’s investigation of Victim’s allegations and presented helpful testimony at trial. He also argued that obtaining all of Victim’s medical records was essential because they highlighted inconsistencies in her testimony. And he claimed that, but for Trial Counsel’s errors, a more favorable outcome at trial was "reasonably probable."

¶12 The State moved to dismiss the petition, arguing that McCloud’s claims were procedurally barred under Utah Code section 78B-9-106(1)(c) because he could have but did not raise them on direct appeal. It asserted that, even "if claims of ineffective assistance against [Trial Counsel] required supplementation [of the record on appeal], [Appellate Counsel] could have asked the Court of Appeals to remand for an evidentiary hearing pursuant to rule 23B [of the Utah Rules of Appellate Procedure]." Thus, all ineffective assistance claims "could have and should have been raised on direct appeal."

¶13 The State asserted that Trial Counsel’s ineffectiveness could be addressed only in the context of a claim that Appellate Counsel was ineffective for failing to raise issues on appeal. That is, McCloud had to show that Appellate Counsel "omitted an issue which [was] obvious from the trial record," and "probably would have resulted in reversal." (Quotation simplified.) Essentially, the State argued McCloud was required to show both that Trial Counsel was ineffective at trial and that Appellate Counsel was ineffective for failing to raise Trial Counsel’s ineffectiveness. See Hamblin v. State , 2015 UT App 144, ¶ 11, 352 P.3d 144 (explaining that "we must examine the merits of the claim of ineffective assistance of trial counsel to determine if appellate counsel rendered ineffective assistance" by omitting that claim (quotation simplified)).

¶14 McCloud opposed the motion to dismiss, asserting that the State’s procedural bar argument "must be rejected." He said barring his claims would confuse the role of appellate counsel—who generally raises ineffectiveness claims only when the trial record is adequate to permit decision on the issue—with the role of post-conviction counsel—who generally raises ineffectiveness claims based on matters not contained in the record. McCloud acknowledged that rule 23B allows supplementation of the record upon "a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective." (Quotation simplified.) But he argued that rule 23B does not require attorneys to "scrutinize their client’s case for all possible extra-record claims of ineffective assistance of counsel during the direct appeal." Instead, he claimed "the permissive language of the rule" creates "a procedural means of establishing a record for" claims of which "counsel is aware."

¶15 McCloud noted that arguing Appellate Counsel’s ineffectiveness would require him to show that the omitted issues were "obvious from the record." But rule 23B"provides the possibility of remand if counsel can make a nonspeculative allegation of facts not fully appearing in the record." (Quotation simplified.) Thus, if "the claim was solely ‘obvious from the record,’ " he argued, "there would be no need to make application under Rule 23(B)." He concluded that "it is precisely because claims of ineffective assistance of counsel are often based on matters not contained in the appellate record that [post-conviction petitions] are permitted."

¶16 After reviewing the parties' arguments, the postconviction court concluded that...