Ross v. State, 2019 UT 48 (Aug. 15, 2019)

The district court initially granted summary judgment to the State dismissing this PCRA petition, but that ruling was reversed and remanded for an evidentiary hearing to determine whether appellate counsel was ineffective for not raising the argument that trial counsel was ineffective for not raising an extreme emotional distress defense at trial.  After this hearing, the district court concluded that appellate counsel was ineffective, but that defendant had not suffered any prejudice.  The district court based its ruling on rebuttal evidence the State contended it would have presented at trial had the defense of emotional distress been raised.  On appeal, the petitioner argued that it was improper for the district court to consider evidence outside of the direct record on appeal in determining whether he suffered prejudice from appellate counsel’s ineffective representation.  The court rejected this argument, holding that the Strickland inquiry into ineffective assistance of counsel requires that court to consider all relevant evidence that the jury would have had before it if trial counsel had pursued a different path, including evidence not in the original appellate record.