2019 UT App 171

THE UTAH COURT OF APPEALS

STATE OF UTAH,

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. ORME 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.