State v. Galindo

2019 UT App 171
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
PATRICK BOBBY GALINDO JR .,
Appellant.
Opinion
No. 20180116-CA
Filed October 18, 2019
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, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES GREGORY K. O RME and DIANA HAGEN concurred.
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.

State v. Galindo
20180116-CA 	2 	2019 UT App 171
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.
1. The State also charged Galindo with felony discharge of a
firearm, but it later dropped that charge.

State v. Galindo
20180116-CA 	3 	2019 UT App 171
[Trial counsel]: So given that, I think we’re willing
to stipulate to competen[cy] based on those two
reports.
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
2. Although Galindo purports to challenge both convictions in
his opening brief, he concedes in his reply brief “that he may
only 	contest 	his 	conviction 	as 	to 	attempted 	murder.” 	We
therefore 	consider 	his 	claims 	as 	solely 	pertaining 	to 	the
attempted murder conviction.

State v. Galindo
20180116-CA 	4 	2019 UT App 171
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 (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

State v. Galindo
20180116-CA 	5 	2019 UT App 171
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). 	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 (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 (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 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 	trial 	counsel 	to 	“send[] 	a 	cognitively
impaired client to stand trial.” In so arguing, Galindo relies
on the evidence of his low IQ and on Dr. Wilkinson’s report
that stated “in no uncertain terms . . . that [Galindo] was ‘not
able 	to 	consult 	with 	his 	attorney 	and 	participate 	in 	the
proceeding against him with a reasonable degree of rational
understanding.’”3
3. In his reply brief, Galindo relies on trial counsel’s affidavit as
additional evidence of Galindo’s “inability to consult with trial
counsel and to participate in the proceedings against him with a
reasonable degree of understanding.” But this affidavit is not
part of the record on appeal. Galindo attached it to his rule 23B
(continued…)

State v. Galindo
20180116-CA 	6 	2019 UT App 171
¶11 	Under Utah law, “[a]n individual who is incompetent
to proceed may not be tried for a public offense.” Utah Code
Ann. § 77-15-1 (LexisNexis Supp. 2019). At the relevant time,
the 	Utah 	Code 	provided 	that 	a 	person 	is 	“incompetent 	to
proceed” if he has a mental disorder or intellectual disability that
results in either
(1) his inability to have a rational and factual
understanding of the proceedings against him or of
the punishment specified for the offense charged;
or
(2) his inability to consult with his counsel and to
participate in the proceedings against him with a
reasonable degree of rational understanding.
Id. § 77-15-2 (2012). The statute does not suggest that a low IQ is
sufficient 	to 	establish 	that 	a 	defendant 	is 	“incompetent 	to
proceed.” See id.; see also United States v. Bell, 280 F. App’x 548,
550 (7th Cir. 2008) (“[A] low IQ score alone is not enough to
show that a defendant is incompetent.”). Rather, a person’s
mental disorder or intellectual disability must result in the
inability to “have a rational and factual understanding of the
proceedings against him or of the punishment specified for the
offense charged” or the inability to “consult with his counsel and
to participate in the proceedings against him with a reasonable
degree of rational understanding.” Utah Code Ann. § 77-15-2(1)–
(2). Thus, Galindo could not be deemed incompetent based
solely on his low IQ.
(…continued)
motion to supplement the record, and that motion is limited to
his second ineffective assistance claim. We therefore do not
consider 	it 	in reaching our decision on 	his first 	ineffective
assistance claim.

State v. Galindo
20180116-CA 	7 	2019 UT App 171
¶12 	Galindo 	also 	believes 	that 	Dr. 	Wilkinson’s 	report
concluded 	that 	Galindo 	“was ‘not 	able 	to 	consult 	with 	his
attorney and participate in the proceeding against him with a
reasonable 	degree 	of 	rational 	understanding.’” 	(Emphasis
added.) But we agree with the State that the insertion of the
word “not” in that sentence of the report is “most reasonably
read as a typographical error” in light of its context and the
report as a whole. Elsewhere in the report, for example, Dr.
Wilkinson unambiguously states her opinion that Galindo is
competent both to understand the proceedings and to assist his
attorney in the presentation of his defense. As a result, Dr.
Wilkinson’s 	report 	does 	not 	lend 	support 	to 	Galindo’s
underlying assertion that he was incompetent.
¶13 	Thus, at the competency hearing, the evidence was that
two court-appointed psychologists concluded that, despite his
low IQ, Galindo was competent to stand trial. Indeed, the district
court began the hearing by stating that it read “both of [the
psychologists’ reports as] indicat[ing] that Mr. Galindo was
competent to proceed.” Because Galindo’s low IQ, without more,
could not establish his lack of competency, and because both
psychologists found Galindo competent, we conclude that trial
counsel exercised reasonable professional judgment when he
stipulated to Galindo’s competency. See Jacobs v. State, 2001 UT
17, ¶ 23, 20 P.3d 382 (explaining that “it was a reasonable
exercise of professional judgment for [the defendant’s] counsel
to rely on the experts’ unanimous conclusion that” the defendant
was not incompetent to stand trial). Galindo therefore has not
shown that trial counsel’s decision to stipulate to competency
“fell 	outside 	the 	wide 	range 	of 	professionally 	competent
assistance,” and we reject his first claim of ineffective assistance.
See Nelson, 2015 UT 62, ¶ 14 (cleaned up).
¶14 	Next, 	Galindo 	contends 	that 	his 	trial 	counsel 	was
ineffective when he failed to discuss his observations about
Galindo 	with 	one 	of 	the 	court-appointed 	psychologists, 	Dr.
Hawks, while Dr. Hawks was evaluating Galindo. He also seeks
a rule 23B remand to supplement the record with facts in

State v. Galindo
20180116-CA 	8 	2019 UT App 171
support of this claim. The State responds that Galindo cannot
prove 	this 	claim 	without 	a 	rule 	23B 	remand, 	and 	Galindo
acknowledges in his reply brief that the State is correct in this
regard.
¶15 	Rule 23B presents a “high bar” for Galindo because “‘[t]he
motion shall be available only 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.’” See State v. Griffin, 2015 UT 18, ¶ 17, 441 P.3d 1166
(quoting Utah R. App. P. 23B(a)). To support his contention,
Galindo 	“must 	submit 	affidavits 	that 	demonstrate 	both 	the
deficient performance by counsel and the resulting prejudice” to
him. See id. If Galindo cannot “meet the test for ineffective
assistance of counsel, even if his new factual allegations were
true, there is no reason to remand the case, and we should deny
the motion.” See id. ¶ 20.
¶16 	In support of his rule 23B motion, Galindo has submitted
an affidavit from trial counsel himself. In it, trial counsel avers
that Galindo was “unable to assist with preparation for trial”
and could not “adequately . . . testify at trial.” He also avers that
Galindo “did not understand the gravity of the offenses, and did
not comprehend at all that there was a real possibility of losing
the trial.” Based on these and other averments, Galindo asserts
that had trial counsel spoken with Dr. Hawks, “not only would
the doctor’s assessment of Mr. Galindo’s competency likely have
changed, but on its own accord the court’s assessment would
also likely have changed.”
¶17 	We conclude that the allegations of fact in support of
Galindo’s 	rule 	23B 	motion 	do 	not 	show 	that 	“there 	is 	a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
See Bond, 2015 UT 88, ¶ 59 (cleaned up). Trial counsel’s affidavit
expresses generalized concerns about Galindo’s awareness of his
situation 	and 	his mental 	abilities, 	including 	his capacity 	to
answer questions appropriately. But Galindo has not shown that
trial counsel’s observations would have revealed something new

State v. Galindo
20180116-CA 	9 	2019 UT App 171
to 	Dr. 	Hawks 	about 	Galindo 	or 	that 	Dr. 	Hawks 	did 	not
adequately 	test 	and 	analyze 	Galindo’s 	abilities 	and
understanding. He therefore has not demonstrated a reasonable
likelihood that had trial counsel shared his concerns with Dr.
Hawks, it would have altered Dr. Hawks’s overall assessment of
Galindo 	or 	the 	district 	court’s 	subsequent 	determination 	of
Galindo’s competency. See id. We therefore deny his rule 23B
motion, see Griffin, 2015 UT 18, ¶ 20, and thus Galindo’s second
claim of ineffective assistance necessarily fails.4
CONCLUSION
¶18 	Galindo 	has 	not 	shown 	that 	his 	trial 	counsel’s
performance fell below an objective standard of reasonableness
when he stipulated to Galindo’s competency to stand trial.
Galindo 	also 	has 	not 	alleged 	facts 	that 	could 	support 	a
determination that trial counsel was constitutionally ineffective
when he did not discuss his observations of Galindo with a
court-appointed psychologist, and we deny his related motion
for a rule 23B remand. Accordingly, we affirm.
4. Lastly, Galindo asks this court to reverse under the cumulative
error doctrine, asserting that “[t]rial counsel’s double-whammy
of (1) stipulating to competency and (2) utterly failing to talk to
Dr. Hawks left Mr. Galindo—for all intents and purposes—
without 	an 	advocate” 	and 	that 	“[t]hese 	two 	issues 	should
cumulate to obliterate this court’s confidence in the outcome of
Mr. Galindo’s competency hearing.” There are no errors to
accumulate 	here, 	rendering 	the 	cumulative 	error 	doctrine
inapplicable in this case. See State v. Beverly, 2018 UT 60, ¶ 80, 435
P.3d 160.