State v. Gallegos, 2020 UT 19 (April 29, 2020)

A divided panel of the court of appeals denied the defendant’s rule 23B request to investigate the extent to which he was prejudiced by his counsel’s failure to call witnesses and lack of preparation. Affirming, the supreme court held the defendant failed to establish sufficient facts that, if true, would likely change the outcome of the ineffective assistance of counsel inquiry, because the evidence against the defendant was substantial, and the missing evidence was not likely to change the prejudice analysis under Strickland. In doing so, the court emphasized that the Strickland inquiry was objective, rather than subjective, and that the deficient performance and prejudice inquiries were separate and distinct.