Kell v. State

2008 UT 62
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Troy Michael Kell, No. 20070234
Petitioner and Appellant,
v.
F I L E D
State of Utah,
Respondent and Appellee. September 5, 2008
---
Sixth District, Manti
The Honorable David Mower
No. 030600171
Attorneys: Aric Cramer, St. George, for petitioner
Mark L. Shurtleff, Att’y Gen., Thomas Brunker,
Christopher D. Ballard, Asst. Att’ys Gen., Salt Lake
City, for respondent
---
PARRISH, Justice:
INTRODUCTION
¶1 Petitioner Troy Kell appeals the dismissal of his
petition for post-conviction relief. Specifically, Kell
challenges the holding that some of his claims were procedurally
barred under the Post-Conviction Remedies Act (“PCRA”) because
either they were previously raised on direct appeal or they could
have been raised on direct appeal but were not. Additionally,
Kell challenges the post-conviction court’s entry of summary
judgment in favor of the State on all claims that were not
procedurally barred. We affirm.
BACKGROUND
¶2 Troy Kell was convicted of murder and sentenced to life
without parole in Nevada. Pursuant to an interstate compact,
Kell was transferred to the Utah State Prison in June 1993. In
March 1994, Kell was transferred to the Central Utah Correctional
Facility (“CUCF”).

1 More detailed accounts of the homicide can be found in
State v. Kell, 2002 UT 106, ¶¶ 2-6, 61 P.3d 1019, and State v.
Daniels, 2002 UT 2, ¶¶ 4-9, 40 P.3d 611.
2 Kell raised twelve claims of error on direct appeal:
(1) the trial court erred . . . by trying him
in a courtroom located inside a prison;
(2) the trial court violated his
constitutional right to a fair trial by
denying him an impartial jury in its rulings
on voir dire; (3) the trial court erred by
failing to instruct the jury on the theory of
imperfect self-defense manslaughter; (4) the
trial court erred by requiring jurors to view
a videotape of the homicide; (5) multiple
evidentiary errors individually and
cumulatively deprived him of a fair trial;
(6) the prosecutors violated his rights . . .
by making improper arguments to the jury;
(7) the trial court erred during the penalty
phase by forbidding the jury to consider
mercy and sympathy as mitigating factors;
(8) the victim impact evidence admitted in
the penalty phase and the Utah statute that
allows it[] are unconstitutional; (9) Section
76-5-202 of the Utah Code, which describes
the aggravating factors necessary for capital
murder, is unconstitutionally vague on its
face; (10) the Utah death penalty statutes
are unconstitutional because they do not
narrow the class of death-eligible murders
. . . ; (11) the capital sentencing
proceedings were flawed; and, (12) because
[Kell] had already been disciplined through
the prison’s disciplinary proceedings, the
subsequent trial violated state and federal
constitutional double jeopardy provisions.
Kell, 2002 UT 106, ¶ 10.
No. 20070234 2
¶3 In July 1994, Kell stabbed fellow inmate Lonnie
Blackmon to death in the CUCF.1 Due to security concerns, the
district court held Kell’s trial “in a regular courtroom located
inside the CUCF.” State v. Kell, 2002 UT 106, ¶ 7, 61 P.3d 1019.
A jury found Kell guilty of aggravated murder and sentenced him
to death. Id. ¶ 9. Kell appealed,2 and we affirmed the
conviction and sentence. Id. ¶ 64.

3 Claim 12 alleged that Kell’s right to a fair trial was
violated when the trial court denied his motion for a change of
venue and that trial and appellate counsel were ineffective for
failing to challenge the trial court’s denial of Kell’s motion
for a change of venue.
3 No. 20070234
¶4 Pursuant to the PCRA, Kell filed a preliminary petition
for post-conviction relief in May 2003 to challenge his
conviction and sentence. Kell filed an “Amended Petition for
Post Conviction Relief and/or Writ of Habeas Corpus” (“Amended
Petition”) in August 2005. In the Amended Petition, Kell raised
numerous claims related to the jury selection process, the
fairness of the trial proceedings, ineffective assistance of
trial counsel, and ineffective assistance of appellate counsel.
¶5 In November 2005, the State filed a “Motion to Dismiss
and for Partial Summary Judgment.” The State moved to dismiss
Kell’s post-conviction claims that had been previously litigated
on direct appeal or that could have been raised on direct appeal
but were not, arguing they were procedurally barred under the
PCRA. The State also sought summary judgment on Kell’s other
claims but, in an apparent oversight, failed to specifically
request summary judgment on claims 17(b) and 18(b).
¶6 In January 2007, the post-conviction court issued a
memorandum decision granting the State’s motion. The post-
conviction court also entered summary judgment in favor of the
State on claims 17(b) and 18(b), stating that the State’s failure
to request summary judgment on those claims was possibly “an
oversight.” While the court granted the State’s motion without
qualification, the court did not specifically mention Kell’s
claim 12 anywhere in its opinion, even though the State had
specifically requested summary judgment on that claim.3 The
court’s memorandum decision dismissed Kell’s Amended Petition and
stated that the ruling in the memorandum decision was the final
order of the court and that no further orders were necessary.
¶7 Kell appeals the post-conviction court’s decision. We
have jurisdiction pursuant to Utah Code section 78A-3-102(3)(i)
(Supp. 2008).
STANDARD OF REVIEW
¶8 “‘We review an appeal from an order dismissing or
denying a petition for post-conviction relief for correctness
without deference to the lower court’s conclusions of law.’”
Taylor v. State, 2007 UT 12, ¶ 13, 156 P.3d 739 (quoting Gardner
v. Galetka, 2004 UT 42, ¶ 7, 94 P.3d 263).

4 There are three exceptions that allow parties to appeal
nonfinal orders in certain circumstances: (1) when a statute
allows for the appeal of nonfinal orders, (2) “when a party
obtains permission from the appellate court to appeal an
interlocutory order pursuant to rule 5 of Utah Rules of Appellate
Procedure,” and (3) “when the district court certifies an order
as final under rule 54(b) of the Utah Rules of Civil Procedure.”
Powell v. Cannon, 2008 UT 19, ¶ 13, 179 P.3d 799. None of these
exceptions is at issue in this case.
No. 20070234 4
ANALYSIS
I. THE POST-CONVICTION COURT’S MEMORANDUM DECISION WAS A FINAL
ORDER
¶9 After briefs were filed with this court and after oral
arguments were held, Kell challenged the jurisdiction of this
court. Kell contends that the post-conviction court’s failure to
specifically address claim 12 in its memorandum decision robbed
its decision of the finality necessary to qualify the decision as
a final appealable order under rule 3 of the Utah Rules of
Appellate Procedure. We disagree.
¶10 Generally, appeals to this court may be taken only from
final orders or judgments.4 Salt Lake City Corp. v. Layton, 600
P.2d 538, 539 (Utah 1979); see also Utah R. App. P. 3(a). If a
judgment is not final, “we lack jurisdiction over the appeal and
must dismiss it.” Powell v. Cannon, 2008 UT 19, ¶ 12, 179 P.3d
799. “A judgment is final when it ends the controversy between
the parties litigant.” Layton, 600 P.2d at 539. Generally, a
judgment will not be considered final and appealable if it
resolves fewer than all of the claims pending in an action. Id.
at 539-40.
¶11 In this case, we conclude that the post-conviction
court’s memorandum decision was a final judgment resolving all of
Kell’s claims for post-conviction relief. While the memorandum
decision did not provide any specific analysis regarding why the
post-conviction court was dismissing claim 12, the court clearly
stated that it was granting the State’s motion to dismiss and for
partial summary judgment without qualification. In the State’s
motion, the State sought to dismiss some of Kell’s claims as
procedurally barred and sought summary judgment on Kell’s other
claims, including claim 12. Thus, while the court did not
specifically mention claim 12 in its memorandum decision, the
claim was rejected when the court granted the State’s motion in
its entirety. Although post-conviction courts should enumerate
and explain their reasoning for denying or granting a motion for

5 Claim 8 asserts that the trial court denied Kell a fair
and impartial trial by trying him inside the CUCF. Claim 10
asserts that the trial court violated Kell’s rights by removing
two potential jurors for cause based upon their reluctance to
impose the death penalty. Claim 11 asserts that the trial court
violated Kell’s rights by denying Kell’s “for cause” challenges
to five prospective jurors. Claim 14 asserts that the trial
court violated Kell’s right to a fair trial by admitting the
videotape of the homicide. Claim 15(b) asserts that the trial
court violated Kell’s right to a fair trial by admitting the
autopsy report.
5 No. 20070234
summary judgment on each requested claim, we conclude that the
failure to do so is not reversible error.
¶12 Because the court granted the State’s motion in its
entirety, thereby disposing of all of Kell’s claims, we hold that
the decision was a final appealable order under rule 3 of the
Utah Rules of Appellate Procedure. Accordingly, we have
jurisdiction over this appeal.
II. THE POST-CONVICTION COURT CORRECTLY DISMISSED KELL’S CLAIMS
THAT HAD BEEN PREVIOUSLY RAISED AND REJECTED ON DIRECT APPEAL
¶13 “The PCRA affords a convicted defendant the opportunity
to have his conviction and sentence vacated or modified under
certain circumstances.” Lafferty v. State, 2007 UT 73, ¶ 44, 175
P.3d 530. A petition for post-conviction relief “is not a
substitute for appellate review,” but only “a collateral attack
on a conviction or sentence.” Taylor v. State, 2007 UT 12, ¶ 14,
156 P.3d 739. Under the PCRA, a convicted defendant is not
eligible for relief on claims that were “raised or addressed” on
direct appeal. Utah Code Ann. § 78-35a-106(1)(b) (2002);
Lafferty, 2007 UT 73, ¶ 44 (“Claims that were brought on direct
appeal are ineligible for consideration in post-conviction
actions.”).
¶14 The post-conviction court dismissed five of Kell’s
claims on the grounds that they had been previously raised and
rejected on direct appeal and were, therefore, procedurally
barred under the PCRA.5 Kell argues that these claims should not
have been dismissed (1) because the PCRA contains an exception
for ineffective assistance of counsel and (2) because his
conviction was obtained in violation of the federal and state
constitutions. We disagree with Kell’s assertions and conclude
that the post-conviction court correctly dismissed the claims.

6 Subsection (1)(c) provides that a person is not eligible
for post-conviction relief on any claim that “could have been but
was not raised at trial or on appeal.” Utah Code Ann. § 78-35a-
106(1)(c).
No. 20070234 6
A. Ineffective Assistance of Counsel
¶15 Kell first attempts to overcome the PCRA’s procedural
bar by arguing that subsection (2) of section 78-35a-106 provides
an avenue for him to re-raise before the post-conviction court
the five claims previously raised on appeal. Subsection (2)
provides that “[n]otwithstanding Subsection 1(c), a person may be
eligible for relief on a basis that the ground could have been
but was not raised at trial or on appeal, if the failure to raise
that ground was due to ineffective assistance of counsel.” Utah
Code Ann. § 78-35a-106(2). Kell argues that his appellate
counsel ineffectively presented the issues to this court on
direct appeal and that he consequently should be allowed to re-
raise them before the post-conviction court under subsection (2).
¶16 Kell’s argument fails under the plain language of the
PCRA. Because subsection (2) begins with the language
“[n]otwithstanding Subsection 1(c),” it is clear that subsection
(2) is an exception only to subsection (1)(c).6 Id. Subsection
(2) does not modify or make exception to subsection (1)(b), which
bars claims “raised or addressed . . . on appeal.” Id. § 78-35a-
106(1)(b). Thus, Kell’s reliance on alleged ineffective
assistance of counsel to avoid the “raised or addressed”
procedural bar is misplaced.
¶17 Additionally, we note that Kell’s claims were
considered by this court in State v. Kell, 2002 UT 106, 61 P.3d
1019, after Kell was given an opportunity to be heard. We
presume that this court gave full consideration to the claims,
regardless of whether Kell’s counsel raised them in the most
effective manner. We therefore reject Kell’s attempt to avoid
the procedural bar to claims previously raised on appeal by
claiming ineffective assistance of counsel.
B. Constitutional Violations
¶18 Kell also asserts that under Utah Code section 78-35a-
104, he should be able to bring those claims that were previously
raised and lost on direct appeal, arguing that his conviction and
sentence were obtained in violation of the United States
Constitution and the Utah Constitution. Kell’s argument again
fails under the plain language of the PCRA.

7 Kell argues his position is supported by an Oregon Supreme
Court decision, which concluded that a criminal trial held within
a state prison violated the Oregon Constitution. State v. Cavan,
98 P.3d 381, 389 (Or. 2004). Kell apparently argues that the
decision by the Oregon Supreme Court mandates reversal of our
prior holding that Kell’s prison trial did not violate the United
States Constitution or the Utah Constitution. See Kell, 2002 UT
106, ¶¶ 11-16. This argument is without merit. Not only is the
Oregon opinion distinguishable on its facts, but the Oregon
court’s conclusions are not binding on this court. Indeed,
because the Oregon court’s conclusions were based on the Oregon
Constitution, they do not dictate this court’s conclusions about
the Utah Constitution or the United States Constitution.
7 No. 20070234
¶19 Section 78-35a-104 allows a convicted defendant to file
a petition for post-conviction relief to vacate or modify a
conviction or sentence on grounds that “the conviction was
obtained or the sentence was imposed in violation of the United
States Constitution or Utah Constitution.” Utah Code Ann. § 78-
35a-104(1)(a). This section is limited, however, by the
procedural bars contained in sections 78-35a-106 and 78-35a-107.
Id. § 78-35-104(1) (stating that a convicted defendant may file
an action for post-conviction relief “[u]nless precluded by
Section 78-35a-106 or 78-35a-107”). As discussed above, the
claims that Kell presents were raised and lost on direct appeal
and are precluded from being raised again under section 78-35a-
106. Therefore, Kell cannot bring them again in a post-
conviction court.7
¶20 In summary, we conclude that Kell’s claims that were
previously raised and lost on direct appeal are procedurally
barred. We therefore affirm the post-conviction court’s
dismissal of those claims.
III. THE POST-CONVICTION COURT CORRECTLY DISMISSED KELL’S CLAIMS
THAT COULD HAVE BEEN RAISED ON DIRECT APPEAL BUT WERE NOT
¶21 The PCRA provides that convicted defendants are not
eligible for relief on claims that could have been raised on
direct appeal but were not, unless the convicted defendant shows
that the failure to bring the claims was due to ineffective
assistance of counsel. Utah Code Ann. § 78-35a-106(1)(c), (2)
(2002); see also Pascual v. Carver, 876 P.2d 364, 366 (Utah 1994)
(“Allegations of error cannot be pursued for the first time by
writ of habeas corpus if they could have been raised on direct
appeal.”). The post-conviction court dismissed two of Kell’s

8 Claim 9 asserts that the trial court’s death qualification
of the jury violated Kell’s constitutional rights. Claim 13(a)
asserts that the trial court’s jury instruction regarding
reasonable doubt was constitutionally flawed.
No. 20070234 8
claims as procedurally barred because they could have been raised
on direct appeal but were not.8 We affirm.
¶22 Kell admits that these claims could have been brought
on direct appeal but attempts to avoid the procedural bar by
asserting that the claims were not brought on direct appeal due
to ineffective assistance of appellate counsel. The problem,
however, is that Kell did not characterize these claims as claims
for ineffective assistance of appellate counsel until his brief
to this court. We addressed a similar issue in Lafferty v.
State, 2007 UT 73, 175 P.3d 530. In Lafferty, claims that could
have been brought on direct appeal, but were not, were
categorized by the petitioner as claims for ineffective
assistance of counsel for the first time in a memorandum opposing
summary judgment on the petition. Id. ¶ 46. We held that
reconfiguring the claims as ineffective assistance of counsel
claims for the first time in a memorandum opposing summary
judgment was an “impermissible attempt to raise claims not
raised” in the petition for post-conviction relief. Id.
¶23 Likewise, Kell’s attempt to reconfigure his claims for
relief as ineffective assistance of appellate counsel claims for
the first time on appeal is an abuse of the PCRA and violates our
pleading requirements. See id. ¶ 47; see also Utah R. Civ. P.
65C(c). A petitioner must set out all of his claims relating to
the legality of his conviction or sentence in his petition for
post-conviction relief and may not bring additional claims in
later proceedings. Lafferty, 2007 UT 73, ¶ 47. Rule 65C does
contain a good cause exception, which allows us to consider
claims “that were not raised in a post-conviction petition when
adherence to a procedural rule would come at the price of basic
fairness.” Id. In this case, however, Kell has not shown good
cause as to why his ineffective assistance of appellate counsel
claims were not raised in the Amended Petition. In fact, Kell
offers no explanation at all for why the ineffective assistance
of appellate counsel claims were not brought in the Amended
Petition and does not even mention that he is bringing these
claims for the first time on appeal.
¶24 Because these claims were not raised as ineffective
assistance of appellate counsel claims before the post-conviction
court and because Kell has not shown good cause for raising them

9 No. 20070234
now, we affirm the ruling of the post-conviction court and hold
that the claims are procedurally barred under the PCRA.
¶25 Moreover, even if we were to view Kell’s claims through
the lens of ineffective assistance of appellate counsel, Kell
would still not be entitled to relief. To demonstrate
ineffective assistance of appellate counsel, a petitioner must
first show that his counsel was objectively
unreasonable in failing to find arguable
issues to appeal--that is, that counsel
unreasonably failed to discover nonfrivolous
issues and to file a merits brief raising
them. If [a petitioner] succeeds in such a
showing, he then has the burden of
demonstrating prejudice. That is, he must
show a reasonable probability that, but for
his counsel’s unreasonable failure to file a
merits brief, he would have prevailed on his
appeal.
Smith v. Robbins, 528 U.S. 259, 286 (2000); see also Benvenuto v.
State, 2007 UT 53, ¶ 24, 165 P.3d 1195. Kell fails to show that
appellate counsel’s failure to raise these claims was objectively
unreasonable. Kell also fails to show that the failure was
prejudicial, i.e., that the claims “would have likely resulted in
reversal of his conviction.” Lafferty, 2007 UT 73, ¶ 51. Thus,
Kell’s claims fail even if considered as claims of ineffective
assistance of appellate counsel.
IV. THE POST-CONVICTION COURT CORRECTLY GRANTED SUMMARY JUDGMENT
TO THE STATE ON KELL’S CLAIMS OF INEFFECTIVE ASSISTANCE OF
COUNSEL
¶26 Kell’s Amended Petition raised numerous claims alleging
ineffective assistance of trial counsel at the guilt phase,
ineffective assistance of trial counsel at the penalty phase, and
ineffective assistance of appellate counsel. We conclude that
the post-conviction court correctly granted summary judgment to
the State on these claims because Kell failed to provide evidence
of counsel’s deficient performance and failed to show prejudice.
¶27 The Supreme Court of the United States recognizes that
a “Sixth Amendment right to counsel exists” and is necessary “to
protect the fundamental right to a fair trial.” Strickland v.
Washington, 466 U.S. 668, 684 (1984). The Sixth Amendment right
to counsel includes the right to effective assistance of counsel.
Id. at 686. To warrant reversal of a conviction, a defendant
alleging ineffective assistance of counsel must establish both

No. 20070234 10
“that counsel’s performance was deficient” and that “the
deficient performance prejudiced the defense.” Id. at 687; see
also Lafferty v. State, 2007 UT 73, ¶ 11, 175 P.3d 530.
¶28 To prove that counsel’s performance was deficient, the
petitioner “must show that counsel’s representation fell below an
objective standard of reasonableness.” Strickland, 466 U.S. at
688. The objective standard of reasonableness is to be
determined by “prevailing professional norms.” Id. Standards
such as those laid out by the American Bar Association “are
guides to determining what is reasonable,” but the Supreme Court
has declined to adopt any detailed criteria defining ineffective
assistance of counsel. Id. at 688-89. Instead, counsel’s
performance must be evaluated “considering all the
circumstances,” with “a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance.” Id. at 688, 689.
¶29 To prove that counsel’s deficient performance
prejudiced the defense, “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.”
Id. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.
When a defendant challenges a death sentence
. . . the question is whether there is a
reasonable probability that, absent the
errors, the sentencer--including an appellate
court, to the extent it independently
reweighs the evidence--would have concluded
that the balance of aggravating and
mitigating circumstances did not warrant
death.
Id. at 695.
A. Trial Counsel at Guilt Phase
¶30 Kell’s Amended Petition raised numerous claims that
trial counsel was ineffective during the guilt phase of the
trial. Kell attempts to demonstrate ineffective assistance by
going through each of his claims and stating that the failure of
counsel to act in each situation was “per se deficient” and “per
se caused prejudice” under the Strickland standard.

9 Claim 16(b) alleges that counsel should have considered
alternative venues besides Salt Lake County. Claim 16(c) alleges
that counsel’s motion for a change of venue was not supported by
empirical data. Claim 16(d) alleges that counsel did not
adequately raise and brief issues related to holding Kell’s trial
in the CUCF. Claim 16(h) alleges that counsel did not adequately
investigate and secure witnesses. Claim 16(i) alleges that
counsel failed to adequately advise Kell about speaking about the
case with individuals outside of counsel’s presence. Claim 16(j)
alleges that counsel failed to review and object to Kell’s
original prison transfer from Nevada. Claim 16(k) alleges that
counsel failed to investigate prosecutorial misconduct. Claims
16(l)-(q) allege that counsel failed to appropriately challenge
five jurors for cause. Claim 16(r) alleges that counsel failed
to object to improper opening statements made by the prosecution.
Claim 16(s) alleges that counsel improperly advised Kell as to
whether he should testify at trial. Claim 16(t) alleges that
counsel failed to have bench conferences transcribed.
10 The Court noted Powell v. Alabama, 287 U.S. 45 (1932),
as an example of a case in which no attorney, even a competent
one, could have effectively assisted a client. In Powell, a
judge appointed the entire bar to represent the defendants six
days before trial. Cronic, 466 U.S. at 660. On the day of
trial, an out-of-state attorney appeared as counsel for
defendants but was allowed no additional time to prepare for the
case. Id. The court held that in such circumstances, “the
(continued...)
11 No. 20070234
¶31 For sixteen of Kell’s claims,9 Kell apparently relies
solely on a theory of per se deficiency and per se prejudice to
illustrate counsel’s ineffective performance. But Kell fails to
cite to any authority to show that this court should presume
counsel’s failure to act was per se deficient or per se
prejudicial. Additionally, Kell fails to point to any objective
standard of reasonableness to show that counsel’s performance was
deficient and fails to show prejudice by illustrating how the
outcome of the trial would have been different if not for
counsel’s alleged unprofessional errors.
¶32 The Supreme Court of the United States does recognize
certain circumstances where ineffective assistance of counsel and
prejudice are presumed. United States v. Cronic, 466 U.S. 648,
658 (1984). Such circumstances include (1) when there is a
complete denial of counsel, (2) when counsel “entirely fails to
subject the prosecution’s case to meaningful adversarial
testing,” and (3) when it is unlikely that any attorney could
provide effective assistance10 under the circumstances. Id. at

10 (...continued)
likelihood that counsel could have performed as an effective
adversary was so remote as to have made the trial inherently
unfair.” Id. at 660-61.
11 Claim 13(b) alleges that counsel failed to object to the
reasonable doubt instruction. Claim 15(a) alleges that counsel
failed to present the entire text of a letter written by Kell
rather than the redacted version presented by the State. Claim
16(a) alleges that counsel failed to conduct an adequate pretrial
investigation. Claim 16(e) alleges that counsel failed to seek
interlocutory review of the adverse ruling on the issue of venue
and trial in the CUCF. Claim 16(f) alleges that counsel failed
(continued...)
No. 20070234 12
659-60. The first and third circumstances are not raised here.
With respect to the second circumstance, the Court in Bell v.
Cone noted that failing to challenge the prosecution at specific
points of its case is not considered an entire failure to subject
the prosecution’s case to meaningful adversarial testing and is
insufficient to warrant a finding of presumed prejudice. 535
U.S. 685, 697 (2002).
¶33 In this case, Kell’s counsel did not entirely fail to
challenge the prosecution’s case; rather, counsel challenged the
prosecution’s case throughout the proceedings by filing numerous
pretrial motions, examining witnesses at the preliminary hearing,
questioning prospective jurors, and presenting extensive evidence
during the guilt phase. Such actions by counsel do not
constitute an entire failure to challenge the prosecution’s case.
¶34 Because Kell failed to show that the circumstances
surrounding his case justified a presumption of ineffective
assistance of counsel, Kell cannot rely entirely on claims of per
se deficiency and per se prejudice. Instead, Kell must meet both
prongs of the Strickland test by illustrating how his trial
counsel’s performance at the guilt phase fell below an objective
standard of reasonableness and how his trial counsel’s alleged
ineffective assistance at the guilt phase adversely influenced
the outcome of his case. Kell failed to offer any evidence
suggesting that his counsel’s alleged failures meet these
requirements. Thus, Kell failed to overcome the strong
presumption that counsel’s assistance was reasonable, and we
reject Kell’s claims of ineffective assistance of counsel at the
guilt phase.
¶35 For the remainder of Kell’s claims of ineffective
assistance of counsel at the guilt phase,11 Kell cites to several

11 (...continued)
to adequately research and brief pretrial motions. Claim 16(g)
alleges that counsel failed to file pretrial motions to prevent
the improper introduction of evidence.
12 Claim 17(a) alleges that counsel failed to object to
improper opening statements of the prosecutor. Claim 17(d)
alleges that counsel called witnesses who presented aggravating
rather than mitigating evidence. Claim 17(e) alleges that
counsel failed to object to improper closing arguments from the
prosecution.
13 No. 20070234
objective standards of reasonableness, including American Bar
Association guidelines and case law, but fails to offer evidence
to illustrate how counsel violated these standards.
Additionally, Kell fails to show how he was prejudiced at trial
by counsel’s alleged deficient performance, apparently relying on
an assertion of per se prejudice. Indeed, while Kell states that
both prongs of the Strickland test are met, he offers no analysis
to support this statement and fails to mention the element of
prejudice at all.
¶36 Because the Strickland test requires that a defendant
establish both deficiency of counsel and prejudice, Kell’s claims
of ineffective assistance of counsel at the guilt phase fail
because Kell establishes neither. We accordingly affirm the
post-conviction court’s grant of summary judgment in favor of the
State on these claims.
B. Trial Counsel at Penalty Phase
¶37 Kell’s Amended Petition raised five claims of
ineffective assistance of trial counsel at the penalty phase.
Again, Kell relies on assertions of per se deficiency and per se
prejudice to satisfy the Strickland requirements. Like Kell’s
claims of ineffective assistance of counsel during the guilt
phase of trial, Kell’s claims of ineffective assistance at the
penalty phase are not the type of claims where we presume
ineffective assistance and prejudice as a matter of law.
¶38 For three of these claims,12 Kell does not point to any
specific instances in the record to show that his counsel was
ineffective. Instead, Kell makes only broad, bare allegations
that counsel was ineffective. We reject these claims of
ineffective assistance because Kell has not demonstrated how
counsel’s performance fell below an objective standard of
reasonableness under Strickland. Additionally, even if we were
to presume deficient performance, Kell fails to meet the second

13 Claim 17(b) alleges that counsel was ineffective for
failing to make an opening statement. Claim 17(c) alleges that
counsel failed to object to the presentation of victim impact
testimony.
14 Claim 18(a) is a general allegation that Kell’s
conviction and sentence were the result of ineffective assistance
of counsel. Claim 18(b) alleges that counsel failed to
adequately raise and brief all issues on appeal. Claim 18(c)
alleges counsel failed to raise the issue of the legality of
Kell’s prison transfer from Nevada to Utah. Claim 18(d) is a
general allegation that absent the errors of appellate counsel,
there is a reasonable likelihood that Kell would not have been
convicted of aggravated murder and sentenced to death.
No. 20070234 14
Strickland requirement of showing how the outcome of the penalty
phase would have been different if not for counsel’s allegedly
deficient performance.
¶39 For Kell’s remaining two claims of ineffective
assistance of counsel at the penalty phase,13 Kell provides
specific instances of counsel’s allegedly deficient performance
but still fails to show how such actions fall below an objective
standard of reasonableness. And again, Kell fails to establish
prejudice by showing how the outcome of the penalty phase would
have been different if not for counsel’s allegedly deficient
performance.
¶40 Accordingly, Kell’s claims of ineffective assistance of
counsel at the penalty phase of trial must fail, and we affirm
the post-conviction court’s grant of summary judgment in favor of
the State on these claims.
C. Appellate Counsel
¶41 Kell raises four claims of ineffective assistance of
appellate counsel.14 Again, Kell relies on claims of per se
deficiency and per se prejudice to satisfy the Strickland
standard for ineffective assistance of counsel.
¶42 The standard for evaluating whether appellate counsel
is ineffective is the same Strickland standard used to determine
whether trial counsel is ineffective. Bruner v. Carver, 920 P.2d
1153, 1157 (Utah 1996). Thus, a criminal defendant must prove
that appellate counsel’s representation “‘fell below an objective
standard of reasonable conduct and that the deficient performance
prejudiced [him].’” Lafferty v. State, 2007 UT 73, ¶ 39, 175
P.3d 530 (alteration in original) (quoting Bruner, 920 P.2d at

15 Claim 17(b) alleged that trial counsel was ineffective by
failing to make an opening statement in the penalty phase. Claim
18(b) alleged that appellate counsel was ineffective by failing
to adequately brief and raise relevant issues on appeal.
15 No. 20070234
1157). To show that appellate counsel was ineffective in failing
to raise a claim, the petitioner “must show that the ‘issue [was]
obvious from the trial record and . . . probably would have
resulted in reversal on appeal.’” Id. (alterations in original)
(quoting Taylor v. State, 2007 UT 12, ¶ 16, 156 P.3d 739).
¶43 Like Kell’s claims of ineffective assistance of trial
counsel, Kell fails to show how appellate counsel’s performance
fell below an objective standard of reasonableness. Kell also
fails to show prejudice. In only one of Kell’s claims for
ineffective assistance of appellate counsel does Kell even argue
that his sentence would likely have been reversed on appeal if
not for counsel’s alleged unprofessional errors, but this
conclusory statement is not supported with any analysis or
authority. For the remainder of Kell’s claims, Kell does not
even argue that there probably would have been a reversal on
appeal if not for counsel’s alleged errors. Because Kell fails
to show a probability of reversal on appeal, even assuming
deficient performance of counsel, Kell’s claims of ineffective
assistance of appellate counsel must fail.
¶44 We affirm the judgment of the post-conviction court in
granting summary judgment to the State on Kell’s ineffective
assistance of appellate counsel claims because Kell failed to
show that his counsel was ineffective or that he was prejudiced
by any allegedly deficient performance.
V. THE POST-CONVICTION COURT ERRED BY SUA SPONTE GRANTING
SUMMARY JUDGMENT ON TWO OF KELL’S CLAIMS, BUT THE ERROR IS
HARMLESS
¶45 In the State’s motion for dismissal and summary
judgment, the State moved to dismiss Kell’s Amended Petition. In
support of its motion, the State filed a memorandum in support
that spanned more than 100 pages and addressed each of Kell’s
claims individually. However, in an apparent oversight, the
State failed to specifically address two of Kell’s claims: claim
17(b) and claim 18(b).15 The post-conviction court recognized
the omissions, but concluded that it was “perhaps . . . an
oversight” by the State and entered summary judgment in favor of
the State on these two claims.

No. 20070234 16
¶46 It is error for a trial court to sua sponte grant
summary judgment on an issue when neither party has sought
summary judgment on that issue. However, on appeal, such sua
sponte grants of summary judgment will not constitute grounds for
reversal unless the losing party demonstrates that it was
prejudiced by the grant of summary judgment.
¶47 Under rule 56 of the Utah Rules of Civil Procedure,
either party may move for summary judgment in its favor “upon all
or any part” of a claim. Timm v. Dewsnup, 851 P.2d 1178, 1180-81
(Utah 1993); see also Utah R. Civ. P. 56(a), (b). The scope of a
summary judgment motion is determined by the moving party, who
may move for judgment upon “all or less than all of the issues
raised by the complaint and answer.” Timm, 851 P.2d at 1181.
Once the moving party has determined the scope of the motion for
summary judgment, “rule 56 contemplates that a written motion
shall be served on the opposite party setting forth with clarity
the relief sought by the motion so that the opposite party may
prepare to defend against it if he or she chooses to do so.” Id.
The court shall then grant summary judgment if “there is no
genuine issue as to any material fact” and “the moving party is
entitled to judgment as a matter of law.” Utah R. Civ. P. 56(c).
¶48 Because summary judgment is a drastic remedy, we
generally require strict compliance with the rules governing
summary judgment. Timm, 851 P.2d at 1181. However, a grant of
summary judgment without strict compliance may be allowed when
the error is shown to be harmless. Id. An error is considered
harmless when it is “‘sufficiently inconsequential that we
conclude there is no reasonable likelihood that the error
affected the outcome of the proceedings.’” Crookston v. Fire
Ins. Exch., 817 P.2d 789, 796 (Utah 1991) (quoting State v.
Verde, 770 P.2d 116, 120 (Utah 1989)).
¶49 Under the rules for summary judgment, only parties to
the case may define the scope of a summary judgment motion. In
this case, since neither party moved for summary judgment on
claims 17(b) and 18(b) in accordance with rule 56, the court was
not strictly complying with the procedural rules for summary
judgment. The court therefore erred when it sua sponte entered
summary judgment in favor of the State on the two claims. The
proper course of action for the court would have been to notify
the State of the apparent oversight. The State could have then
filed an amended or additional motion to cover all of Kell’s
claims, and Kell would have had a chance to respond. Because we
find that the court erred, we must now consider whether the
court’s sua sponte grant of summary judgment was harmless.

17 No. 20070234
¶50 Kell addressed claim 18(b) in his memorandum in
opposition to the State’s motion, apparently unaware that the
State had not requested judgment on this claim. Because Kell
addressed this claim in his memorandum in opposition to summary
judgment, Kell was able to properly defend his position on this
claim in the same manner as if the State had requested summary
judgment. Thus, there was no reasonable likelihood that, absent
the post-conviction court’s error, the outcome would have been
different. Accordingly, we conclude that the post-conviction
court’s sua sponte entry of summary judgment was harmless error
with respect to this claim.
¶51 Kell did not, however, address claim 17(b) in his
memorandum in opposition. On appeal, Kell noted the court’s
error in granting summary judgment to the State on this claim,
but he failed to argue that the error was prejudicial. Kell had
a chance on appeal to show that claim 17(b) would have withstood
summary judgment, i.e., that trial counsel’s actions were
deficient and that the deficient performance was prejudicial, but
Kell failed to do so. Additionally, upon our review of the
record and applicable case law, we conclude that Kell could not
have withstood summary judgment on this claim in any event. See
State v. Harry, 873 P.2d 1149, 1154 (Utah Ct. App. 1994) (holding
that counsel’s decision to forego an opening statement did not
constitute ineffective assistance and that “[e]ven if . . . trial
counsel forgot to deliver an opening statement, we would still
conclude that such failure did not prejudice [the defendant]”).
We therefore conclude that it was harmless error for the post-
conviction court to grant summary judgment on claim 17(b).
¶52 Because we find that the post-conviction court’s error
in granting summary judgment to the State on claims 17(b) and
18(b) was harmless, we affirm the court’s grant of summary
judgment on these two claims.
CONCLUSION
¶53 For the foregoing reasons, we conclude that the post-
conviction court properly dismissed Kell’s petition for post-
conviction relief. Affirmed.
---
¶54 Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Nehring concur in Justice Parrish’s
opinion.