McCloud v. State (State in Interest of C.Z.)

Decision Date20 May 2021
Docket NumberNo. 20190300,20190300
Citation2021 UT 14
PartiesLARRY MCCLOUD, Appellant, v. STATE OF UTAH, Appellee.
CourtUtah Supreme Court

On Certiorari to the Utah Court of Appeals

Fourth District, Provo

The Honorable Donald J. Eyre, Jr.

No. 070500212

Attorneys:

Brent A. Gold, Salt Lake City, and Andrew Parnes, Ketchum, Idaho, for appellant

Sean D. Reyes, Att'y Gen., Erin Riley, Asst. Att'y Gen., Salt Lake City, for appellee

JUSTICE HIMONAS authored the opinion of the Court, in which CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, JUSTICE PEARCE, and JUSTICE PETERSEN joined.

JUSTICE HIMONAS, opinion of the Court:

INTRODUCTION

¶1 In 2001 Larry McCloud was convicted of repeatedly sexually molesting his daughter. McCloud appealed and lost. He then pursued post-conviction relief, claiming his trial counsel was ineffective for refusing to consult or call at trial certain experts and for failing to subpoena the victim's medical records. The reviewing court determined that the Post-Conviction Remedies Act (PCRA), UTAH CODE § 78B-9-101-110,1 barred McCloud's claims because they "could have been but [were] not raised at trial or on appeal." Id. § 78B-9-106(1)(c). The court, however, allowed McCloud to amend his petition to assert that his appellate counsel was ineffective for failing to raise the same ineffectiveness claims on direct appeal. In the end, the amendment was for naught; the court found that because trial counsel was not ineffective, appellate counsel could not have been ineffective—a clear byproduct of law and logic.

¶2 On review, our court of appeals ruled that the PCRA barred McCloud's claims because they "could have been" brought on appeal had McCloud made a rule 23B motion to supplement the record. It also found that an appellate attorney will not be adjudged deficient for omitting a claim on appeal unless that claim is "obvious from the trial record" and that McCloud's claims were not so obvious. Thus, the court of appeals reasoned, the PCRA barred McCloud's "direct" claims, and appellate counsel was de facto not ineffective—leaving McCloud without a remedy.

¶3 Faced with this higgledy-piggledy outcome, the court of appeals applied the common-law "unusual circumstances" exception to reach McCloud's underlying ineffectiveness claims. Again, for naught as the court of appeals, like the post-conviction court before it, determined that since trial counsel was not ineffective, appellate counsel could not have been ineffective.

¶4 We now take our turn at the wheel. We begin by repudiating any "obvious from the trial record" standard regarding appellate counsel's obligation to raise certain issues on appeal. And we explain that obligation is governed by the Strickland reasonableness standard. See Strickland v. Washington, 466 U.S. 668 (1984).

¶5 We go on to apply these principles to McCloud's claims. We agree with the lower courts that the PCRA bars McCloud's direct claims against his trial counsel. But we disagree with the court of appeals' sua sponte application of the "unusual circumstances" exception. So, we analyze McCloud's claims through the gateway of an ineffective assistance of appellatecounsel claim. At the end of the day, his claims fail because trial counsel was not ineffective. Trial counsel did not perform deficiently by refusing to consult or call experts, and his failure to subpoena the victim's medical records did not prejudice McCloud. Because McCloud's claims fail, we affirm the decision of the court of appeals.

BACKGROUND
I. SUMMARY OF FACTS FROM TRIAL AND DIRECT
APPEAL

¶6 McCloud's daughter ("Victim") asserted that McCloud sexually abused her multiple times when she was between five and ten years old.2 According to Victim, these incidents occurred when McCloud and Victim showered and slept together. Victim reported the abuse years later, when she was sixteen.

¶7 The State charged McCloud with one count of aggravated sexual abuse of a child and six counts of sodomy upon a child, all first-degree felonies. 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." McCloud v. State, 2019 UT App 35, ¶ 5, 440 P.3d 775.

¶8 McCloud and his wife, Cindy McCloud (Victim's step-mother), hired an experienced private defense attorney ("Trial Counsel") to defend the case. At trial, Trial Counsel presented a "factual" defense. He presented McCloud's calendars and notes and a family home video in an attempt to discredit Victim's memory and show that the alleged instances of abuse could not have occurred on the alleged dates.3 He cross-examined Victimabout why she had not reported the abuse earlier, even though she had told her mother and various therapists and psychologists about showering with McCloud two years prior to reporting actual abuse. Trial Counsel also elicited testimony about Victim's medical history, including depression and a hospitalization from suicidal feelings, and "deteriorated relationships" between McCloud and Victim and McCloud and Victim's mother, suggesting that alleging the abuse was a way for Victim to "get back at her father."

¶9 The jury convicted McCloud on the count of aggravated sexual abuse of a child and three of the six counts of sodomy upon a child.

¶10 McCloud appealed his conviction, hiring a different private attorney ("Appellate Counsel") to represent him. McCloud asserted a variety of claims, many of them tied to ineffective assistance of Trial Counsel.4 The court of appeals affirmed McCloud's conviction but reduced the count of aggravated sexual abuse of a child to sexual abuse of a child due to a statute of limitations issue. State v. McCloud, 2005 UT App 466, ¶¶ 1, 15, 126 P.3d 775.

II. McCLOUD's POST-CONVICTION PETITION

¶11 Assisted by new counsel, McCloud filed a petition for post-conviction relief under the PCRA. He asserted, inter alia, that Trial Counsel was ineffective for refusing to consult or call at trial experts and failing to obtain all of Victim's medical records.

¶12 The State moved to dismiss the petition, arguing the PCRA barred McCloud's claims because they "could have been but [were] not raised at trial or on appeal." See UTAH CODE § 78B-9-106(1)(c). Historically, the State explained, claims of ineffective assistance of counsel were generally exempt from the common-law rule that any alleged trial errors must be raised on appeal. This changed in 1992, the State argued, when rule 23B of the Utah Rules of Appellate Procedure was adopted. Rule 23B allows a party in a criminal appeal to move for a temporary, limited remand to the trial court for additional fact-finding necessary to support a claim of ineffective assistance of counsel. UTAH R. APP. P. 23B(a). Citing 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 the trial ineffectiveness claims, but such a claim would fail under the Strickland standard of ineffectiveness. See Strickland v. Washington, 466 U.S. 668 (1984).

¶15 McCloud responded with two relevant arguments. First, McCloud argued the State's rule 23B argument was inconsistent with established case law regarding appellate counsel's obligation to raise certain claims on appeal. Under that case law, appellate counsel will be found ineffective for omitting a claim only if that claim is "obvious from the trial record." Lafferty v. State, 2007 UT 73, ¶ 39, 175 P.3d 530 (citation omitted). But if the claim is "obvious from the trial record," McCloud reasoned, there would be no need to make a rule 23B motion for additional fact-finding. Thus, McCloud argued, "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," regardless of rule 23B. Second, McCloud relied on Appellate Counsel's advice that he could raise non-record issues on post-conviction appeal. So, McCloud argued, either the State's interpretation of rule 23B in the context of Litherland was incorrect, or Appellate Counsel "provided advice that was absolutely incorrect."

¶16 The post-conviction court granted in part the State's motion to dismiss. The court agreed with the State's analysis regarding the intersection of rule 23B and the PCRA's procedural bar. It held that, under Litherland, "an ineffective assistance claimshould (and certainly could) be raised on appeal" by filing a rule 23B motion, and thus the PCRA barred McCloud's direct claims.

A. The Evidentiary Hearing

¶17 Still, the court allowed McCloud to amend his petition to include a claim that Appellate Counsel was ineffective for failing to raise the trial counsel ineffectiveness claims on direct appeal. After McCloud did so, the court held an evidentiary hearing to develop the record regarding McCloud's claim that Trial Counsel was ineffective for refusing to consult experts. The McClouds, Trial Counsel, and Appellate Counsel testified at the hearing.

¶18 The McClouds testified they had wanted to present a "scientific" defense based on "parental alienation syndrome." This defense would have utilized expert witnesses in the fields of child memory and false memory, alongside a psychological profile of McCloud, to convince the jury that Victim was fabricating the allegations. McCloud testified that he frequently attempted to raise with Trial Counsel the issue of...

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1 books & journal articles
  • Utah Law Developments
    • United States
    • Utah State Bar Utah Bar Journal No. 34-5, October 2021
    • Invalid date
    ...been prepared by the authoring attorneys listed above, who are solely responsible for their content. UTAH SUPREME COURT McCloud v. State 2021 UT 14 (May 20, 2021) In this Post-Conviction Remedies Act case, the supreme court repudiated the prior standard set forth in lafferty v. State, 2007 ......

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