2017 UT App 93

THE UTAH COURT OF APPEALS

STEVEN J. GRAY,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20150431-CA

Filed June 8, 2017

Fourth District Court, Provo Department

The Honorable Claudia Laycock

No. 140400748

Steven J. Gray, Appellant Pro Se

Sean D. Reyes and Erin Riley, Attorneys for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which 

JUDGES KATE A. TOOMEY and JILL M. POHLMAN concurred.

VOROS, Judge:

¶1 Steven J. Gray appeals the postconviction court’s order 

granting summary judgment in favor of the State on his petition 

for relief under the Post-Conviction Remedies Act (PCRA). We 

affirm.

BACKGROUND

¶2 After consuming cocaine and alcohol for days, Gray

stabbed his girlfriend 67 times and mutilated her body. He then

moved her body to the bathroom, cleaned and secured the 

residence, and fled. He later walked into a police station in 

another state and confessed to the crime. Gray described the 

crime as a “fatal result[] of his acts of passion.”
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20150431-CA 2 2017 UT App 93

¶3 The State charged Gray with aggravated murder, a capital

felony; object rape, a first degree felony; mayhem, a second 

degree felony; obstruction of justice, a second degree felony; and

abuse or desecration of a human body, a third degree felony. The 

information advised Gray that the State intended to seek the 

death penalty. Gray was assigned a team of four attorneys as his 

counsel.

¶4 Gray had a history of drug abuse and reported to his 

counsel that he suffered from anxiety, depression, and posttraumatic stress disorder. His counsel obtained his mental health 

records from various correctional and health institutions. They

also retained a mitigation expert, who interviewed Gray’s 

friends and family members. This investigation uncovered a

childhood and adolescent history of physical, emotional, and 

sexual abuse.

¶5 Pursuant to a plea agreement, the State amended the 

information and agreed not to seek the death penalty. The 

amended information charged Gray with aggravated murder, a 

first degree felony; mayhem, a second degree felony; and abuse 

or desecration of a human body, a third degree felony. Gray 

pleaded guilty to all three counts. He was sentenced to life in 

prison without parole. He did not appeal.

¶6 Gray later filed a petition for postconviction relief, 

alleging that his counsel were ineffective for “failing to 

investigate [his] extensive history of mental illness as a defense”

and for failing “to tell [him] of possible defenses, such as 

temporary mental insanity, extreme emotional distress, etc.” 

Gray argued that, but for his counsel’s deficient performance, he 

would have proceeded to trial and presented a “viable defense 

of insanity and/or extreme emotional distress manslaughter.” 

The State moved for summary judgment. The postconviction

court granted the State’s motion.
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20150431-CA 3 2017 UT App 93

ISSUE AND STANDARD OF REVIEW

¶7 Gray contends on appeal that the postconviction court

erred in granting the State’s motion for summary judgment and 

denying his petition for postconviction relief. We review a 

postconviction court’s grant of summary judgment for 

correctness. Honie v. State, 2014 UT 19, ¶ 28, 342 P.3d 182. “We 

affirm a grant of summary judgment when the record shows that 

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Ross 

v. State, 2012 UT 93, ¶ 18, 293 P.3d 345 (citation and internal 

quotation marks omitted).

ANALYSIS

¶8 Gray contends that his trial counsel were ineffective in 

two ways—first, for not investigating his history of mental 

illness, and second, for not informing him of the defenses of

insanity and extreme emotional distress.1 Gray asserts that,

absent his counsel’s ineffectiveness, he would have proceeded to 

trial and presented a viable defense to the charge of aggravated 

murder.

2

 

1. As explained below, extreme emotional distress is no longer a 

defense under Utah law, see infra ¶ 18, although it may function 

as a mitigating circumstance, see generally State v. Scott, 2017 UT 

App 74.

2. Gray’s appellate briefs also identify multiple issues not raised 

or ruled on in the postconviction court. Claims “not raised 

before the [postconviction court] may not be raised on appeal.” 

Oseguera v. State, 2014 UT 31, ¶ 10, 332 P.3d 963 (citation and 

internal quotation marks omitted). “An issue is preserved for 

appeal when it has been presented to the district court in such a 

(continued...)
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20150431-CA 4 2017 UT App 93

¶9 Under the PCRA, “a person who has been convicted and 

sentenced for a criminal offense may file an action . . . for postconviction relief to vacate or modify the conviction or sentence” 

on the ground that “the petitioner had ineffective assistance of 

counsel in violation of the United States Constitution.” Utah 

Code Ann. § 78B-9-104(1)(d) (LexisNexis 2012). If the State files a 

motion for summary judgment, it bears “the initial burden of 

showing that it is entitled to judgment and that there is no 

genuine issue of material fact that would preclude summary 

judgment in its favor.” See Menzies v. State, 2014 UT 40, ¶ 81, 344 

P.3d 581 (brackets, citation, and internal quotation marks 

omitted). Once the State makes that showing, the burden shifts 

to the petitioner to support the claim of ineffective assistance of 

counsel. See id. To meet this burden, the petitioner “must set 

forth specific facts showing that there is a genuine issue for 

trial.” See id. (citation and internal quotation marks omitted).

¶10 To succeed on a claim of ineffective assistance of counsel, 

a petitioner must show both that counsel’s performance was 

deficient and that the deficient performance prejudiced the 

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. 

Nelson, 2015 UT 62, ¶ 12, 355 P.3d 1031. To show deficient 

performance, the petitioner must demonstrate that counsel’s 

performance “fell below an objective standard of 

 

(...continued)

way that the court has an opportunity to rule on it.” Id. (brackets, 

citation, and internal quotation marks omitted). In addition, 

most of the new issues identified on appeal are asserted in a 

single sentence and lack record and legal support as required by 

rule 24(a)(9) of the Utah Rules of Appellate Procedure. Because 

these issues are neither preserved nor adequately briefed, they 

cannot support reversal on appeal. See Oseguera, 2014 UT 31,

¶¶ 10, 16. We thus do not address them. Instead, we address 

only Gray’s preserved ineffective assistance of counsel claim.
Gray v. State

20150431-CA 5 2017 UT App 93

reasonableness.” Strickland, 466 U.S. at 688. The petitioner must 

also “overcome the presumption that, under the circumstances, 

the challenged action might be considered sound trial strategy.” 

Id. at 689 (citation and internal quotation marks omitted).

¶11 To prove prejudice in the guilty plea context, a petitioner

must demonstrate “a reasonable probability that, but for 

counsel’s errors, he would not have pleaded guilty and would 

have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 

(1985). “A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” Strickland, 466 U.S. at 

694. The petitioner must “convince the court that a decision to 

reject the plea bargain would have been rational under the 

circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010). 

Further, a “defendant’s mere allegation that he would have 

insisted on trial but for his trial counsel’s errors, although 

necessary, is ultimately insufficient to entitle him to relief. 

Rather, we look to the factual circumstances surrounding the 

plea to determine whether defendant would have proceeded to 

trial.” United States v. Clingman, 288 F.3d 1183, 1186 (10th Cir. 

2002) (brackets, citation, and internal quotation marks omitted); 

see Hill, 474 U.S. at 59. And where, as here, “the alleged error of 

counsel is a failure to advise the defendant of a potential 

affirmative defense to the crime charged, the resolution of the 

‘prejudice’ inquiry will depend largely on whether the 

affirmative defense likely would have succeeded at trial.” See 

Hill, 474 U.S. at 59.

I. Deficient Performance

¶12 Gray contends that his counsel performed ineffectively by

not investigating his extensive history of mental illness and not 

informing him of possible defenses such as extreme emotional 

distress and temporary mental insanity. The postconviction

court concluded that “the record establishes that Gray’s counsel 

were aware of and did investigate his history of mental illness.”
Gray v. State

20150431-CA 6 2017 UT App 93

The court also concluded that Gray “failed to establish that he 

could have properly asserted mental illness or insanity as a 

defense under the applicable law.”

¶13 Gray has not demonstrated error in the postconviction

court’s ruling. In his opposition to the State’s motion for 

summary judgment, Gray admitted that his counsel requested 

mental health records from a number of correctional and health 

institutions in the state of Washington, where Gray spent a 

significant portion of his life. Gray also admitted that his counsel 

retained a mitigation expert, who uncovered various details of 

Gray’s history of mental illness. Finally, at sentencing, counsel 

told the court that Gray had a history of substance abuse and 

mental illness. Gray provided no evidence below, and points to 

none on appeal, showing that his trial counsel’s investigation 

into his mental health history “fell below an objective standard 

of reasonableness.” See Strickland, 466 U.S. at 688. 

¶14 Nor has Gray established that he could have succeeded 

on a defense of insanity or extreme emotional distress under 

Utah law. Gray claims that had counsel informed him of these

defenses, he would not have pleaded guilty but would have 

proceeded to trial.

¶15 First we address the defense of insanity. Gray was 

charged with aggravated murder—intentionally or knowingly 

causing the death of another human being incident to an episode 

during which he also committed the crime of abuse or 

desecration of a dead human body. See Utah Code Ann. § 76-5-

202(1)(e) (LexisNexis Supp. 2016). “It is a defense to a 

prosecution under any statute or ordinance that the defendant, 

as a result of mental illness, lacked the mental state required as 

an element of the offense charged.” Id. § 76-2-305(1)(a). This 

defense is narrow; it applies only where the defendant “did not 

have the requisite mens rea of the alleged crime.” State v. Herrera, 

895 P.2d 359, 362 (Utah 1995). Thus, if an individual kills 
Gray v. State

20150431-CA 7 2017 UT App 93

someone “thinking that he is merely squeezing a grapefruit, [the 

individual] does not have the requisite mens rea for murder” 

and qualifies for the insanity defense under the statute. See id.

Gray provided no evidence below, and points to none on appeal, 

to suggest that when he murdered his girlfriend, he did not 

know he was killing a human being or otherwise lacked the 

mental state required for the crime of aggravated murder.

¶16 Moreover, a person who asserts a defense of insanity and 

is “under the influence of voluntarily consumed, injected, or 

ingested alcohol, controlled substances, or volatile substances at 

the time of the alleged offense is not excused from criminal 

responsibility on the basis of mental illness if the alcohol or 

substance caused, triggered, or substantially contributed to the 

mental illness.” Utah Code Ann. § 76-2-305(3). Gray admitted to 

using an excessive amount of cocaine in the days leading up to 

the murder and stated that he was drunk at the time he 

committed the crime. Gray’s voluntary intoxication would have 

presented an additional hurdle to presenting a successful 

insanity defense.

¶17 In sum, Gray has not shown that an insanity defense 

“likely would have succeeded at trial.” See Hill v. Lockhart, 474 

U.S. 52, 59 (1985).

¶18 Gray next alleges that his counsel performed deficiently 

because they failed to inform him of the “defense” of extreme 

emotional distress. Extreme emotional distress no longer exists 

as an affirmative defense in Utah. See Ross v. State, 2012 UT 93, 

¶ 27 n.19, 293 P.3d 345 (“This section of the Utah Code has since 

been revised to eliminate the extreme emotional distress 

defense.”). Gray could have raised it only as special mitigation in 

an effort to reduce a conviction of aggravated murder to murder. 

See Utah Code Ann. § 76-5-205.5 (LexisNexis 2012). The special 

mitigation statute places on the defendant the burden of proving 
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20150431-CA 8 2017 UT App 93

special mitigation by a preponderance of the evidence. See id.

§ 76-5-205.5(5)(a); State v. Drej, 2010 UT 35, ¶ 17, 233 P.3d 476.

¶19 “Special mitigation exists when the actor causes the death 

of another or attempts to cause the death of another . . . under 

the influence of extreme emotional distress for which there is a 

reasonable explanation or excuse.” Utah Code Ann. § 76-5-

205.5(1)(b). “This standard requires a trier of fact to put herself in 

the shoes of a reasonable person in the defendant’s situation to 

determine whether the defendant’s reaction to a series of events 

was reasonable. The standard is . . . whether a reasonable person 

facing the same situation would have reacted in a similar way.” 

State v. White, 2011 UT 21, ¶ 37, 251 P.3d 820. However, 

“emotional distress does not include . . . distress that is 

substantially caused by the defendant’s own conduct.” Utah 

Code Ann. § 76-5-205.5(3)(b).

¶20 Special mitigation also exists when the defendant causes 

the death of another under circumstances that are not legally 

justified, but the actor “acts under a delusion attributable to a 

mental illness” and “the defendant’s actions, in light of the

delusion, were reasonable from the objective viewpoint of a 

reasonable person.” Id. § 76-5-205.5(1)(a)(i), (iii). However, a 

defendant “who was under the influence of voluntarily 

consumed, injected, or ingested alcohol, controlled substances, 

or volatile substances . . . may not claim mitigation . . . on the 

basis of mental illness if the alcohol or substance caused, 

triggered, or substantially contributed to the mental illness.” 

Id. § 76-5-205.5(2). 

¶21 Gray was in no position to take advantage of either 

variant of special mitigation. Gray provided no evidence below, 

and points to none on appeal, to suggest that he acted under 

extreme emotional distress, not substantially caused by his own 

conduct, for which there was a reasonable explanation or excuse.

See id. § 76-5-205.5(1)(b), (3)(b). Gray explained that he killed his 
Gray v. State

20150431-CA 9 2017 UT App 93

girlfriend in a “heat of passion” after seeing her “walking 

toward him nude.” Based on his own account, Gray could not at 

trial have proven by a preponderance of the evidence that a 

reasonable person “facing the same situation would have reacted 

in a similar way.” See White, 2011 UT 21, ¶ 37. Nor has Gray 

pointed to any evidence to suggest that he acted “under a 

delusion attributable to a mental illness” and that his “actions, in 

light of the delusion, were reasonable from the objective 

viewpoint of a reasonable person.” Utah Code Ann. § 76-5-

205.5(1)(a)(i), (iii). In sum, Gray has not shown that his claim of 

special mitigation “likely would have succeeded at trial.” See 

Hill, 474 U.S. at 59.

¶22 Accordingly, Gray cannot establish that his trial counsel’s 

actions “fell below an objective standard of reasonableness.” See 

Strickland v. Washington, 466 U.S. 668, 688 (1984). Nor has he 

“overcome the presumption that, under the circumstances, the 

challenged action might be considered sound trial strategy.” See 

id. at 689 (citation and internal quotation marks omitted). 

¶23 Furthermore, over all of counsel’s actions hung the 

specter of the death penalty. Had Gray gone to trial, given his

voluntary confession and the horrific nature of the crime, he

would likely have been convicted of aggravated murder and 

may well have been sentenced to death. He was, figuratively 

speaking, “[s]tanding on the gallows with [his] head in a noose.” 

Bob Dylan, Things Have Changed (Columbia Records 1999). 

Given what Gray describes as his “keen and unrefuted desire to 

avoid the death sentence,” counsel’s “strategy designed to avoid 

the death penalty” was far from unreasonable, see Honie, 2014 

UT 19, ¶ 68. On the contrary, counsel’s “recommendation that 

[Gray] plead guilty in order to avoid a possible death sentence 

was objectively reasonable,” given the weight of the “strong, 

admissible evidence from which the State could prove to a jury 

that [Gray] was guilty.” See Rhinehart v. State, 2012 UT App 322, 
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20150431-CA 10 2017 UT App 93

¶ 8, 290 P.3d 921 (citations and internal quotation marks 

omitted).

II. Prejudice

¶24 Gray asserts that, but for his counsel’s deficient 

performance, he would have proceeded to trial and presented a 

viable defense. The postconviction court concluded that “based 

on the undisputed facts and the law Gray cannot establish 

prejudice.” We agree. 

¶25 Again, Gray must establish “that a decision to reject the

plea bargain would have been rational under the 

circumstances,” Padilla v. Kentucky, 559 U.S. 356, 372 (2010), an 

inquiry that depends “largely on whether the affirmative 

defense likely would have succeeded at trial,” see Hill, 474 U.S. at

59. But Gray cannot show that rolling the dice at trial would 

have been a rational decision. The evidence against him was 

overwhelming. He confessed to police. The postconviction court 

aptly referred to the “truly horrifying and gruesome evidence at 

the scene of the crime.” And Gray admitted to drug and alcohol 

use immediately preceding the murder. As the postconviction

court explained, the State “had a very strong case and the 

likelihood of conviction at trial was very high.”

¶26 With damning evidence against him, no plausible 

defenses, and facing a possible death sentence, Gray cannot 

demonstrate that “a decision to reject the plea bargain would 

have been rational under the circumstances.” See Padilla, 559 U.S. 

at 372; see also Rhinehart, 2012 UT App 322, ¶ 9, (concluding that 

the defendant’s assertions that she was coerced into pleading 

guilty were unavailing because she could not “demonstrate that 

going to trial ‘would have been rational under the 

circumstances’ considering the weight of the inculpatory 

evidence against her” (quoting Padilla, 559 U.S. at 372)). 

Accordingly, the postconviction court correctly concluded that, 

on this record, Gray could not establish prejudice.
Gray v. State

20150431-CA 11 2017 UT App 93

CONCLUSION

¶27 In sum, Gray failed to meet his burden to “set forth 

specific facts showing that there is a genuine issue for trial” on 

his claim of ineffective assistance of counsel. See Menzies v. State, 

2014 UT 40, ¶ 81, 344 P.3d 581 (citation and internal quotation 

marks omitted). Gray could not establish that his counsel

rendered deficient performance, nor that any alleged deficient 

performance prejudiced him. The postconviction court correctly 

concluded that the State was entitled to judgment as a matter of 

law on both issues. Because “the record shows that there is no 

genuine issue as to any material fact and that the [State] is 

entitled to judgment as a matter of law,” we affirm the decision 

of the postconviction court. See Ross v. State, 2012 UT 93, ¶ 18, 

293 P.3d 345 (citation and internal quotation marks omitted).