2015 UT App 217

_________________________________________________________

THE UTAH COURT OF APPEALS

MARTIN RAY JACKSON,

Petitioner and Appellant,

v.

STATE OF UTAH,

Respondent and Appellee.

Opinion

No. 20130957-CA

Filed August 27, 2015

Third District Court, West Jordan Department

The Honorable Terry L. Christiansen

No. 120411054

Robb Jones, Attorney for Appellant

Sean D. Reyes and Andrew F. Peterson, Attorneys

for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which 

JUDGES JAMES Z. DAVIS and JOHN A. PEARCE concurred.

TOOMEY, Judge:

¶1 Martin Ray Jackson appeals from the dismissal of his 

petition seeking post-conviction relief from his conviction for 

unlawful sexual conduct, a third-degree felony. His petition 

contended he was deprived of his constitutional right to effective 

assistance of counsel because his trial counsel failed to raise a 

statute-of-limitations defense. But Jackson has not shown on 

appeal that his counsel’s performance fell below an objective 

standard of reasonableness, and we therefore affirm the district 

court’s decision to grant the State’s motion for summary 

judgment and to dismiss Jackson’s petition. 
Jackson v. State

20130957-CA 2 2015 UT App 217

BACKGROUND

¶2 In March 2008, the State charged Jackson with rape, a 

first-degree felony, based on allegations that in June 2003, when 

he was forty-three years old, he had sexual intercourse with his 

seventeen-year-old stepdaughter (Stepdaughter).1In December 

2008, the State amended the information to add an alternative,

and lesser, charge of unlawful sexual conduct with a sixteen- or 

seventeen-year-old, a third-degree felony. Although the statute 

of limitations for unlawful sexual conduct expired before the 

State added the alternative charge, Jackson did not raise any 

challenges to it and waived his right to a preliminary hearing on 

it.

2

¶3 At trial, the jury was instructed on the rape charge and on 

the alternative charge of unlawful sexual conduct. Jackson did 

not testify. Jackson argued throughout trial Stepdaughter was 

not credible, and maintained the allegations against him were 

false. Consistent with this, Jackson did not argue in the 

alternative for conviction on the lesser charge of unlawful sexual 

conduct.

¶4 The jury ultimately acquitted Jackson of rape but 

convicted him of unlawful sexual conduct. After trial, Jackson 

filed a motion to arrest judgment, arguing that the statute of 

limitations barred the unlawful-sexual-conduct charge. The 

 

1. The State notes that using the word ‚Stepdaughter‛ does not 

accurately describe Jackson’s legal relationship to the victim. The 

precise nature of this relationship is not material to our analysis, 

and this court’s opinion on his direct appeal referred to the 

victim as ‚Stepdaughter.‛ Thus, this opinion will continue to 

employ that term for simplicity.

2. Jackson did have a preliminary hearing on the rape charge.
Jackson v. State

20130957-CA 3 2015 UT App 217

court denied the motion, reasoning that unlawful sexual conduct 

was a lesser included offense of rape and because the statute of 

limitations for rape had not yet expired, Jackson’s prosecution 

for unlawful sexual conduct was not barred. See Utah Code Ann.

§ 76-1-305 (LexisNexis 2012) (‚Whenever a defendant is charged 

with an offense for which the period of limitations has not run 

and the defendant should be found guilty of a lesser offense for 

which the period of limitations has run, the finding of the lesser 

and included offense against which the statute of limitations has

run shall not be a bar to punishment for the lesser offense.‛).

¶5 On direct appeal, this court affirmed Jackson’s conviction 

for unlawful sexual conduct, albeit on a different ground. State v. 

Jackson, 2011 UT App 318, ¶ 1, 263 P.3d 540. We determined that 

unlawful sexual conduct is not a lesser included offense of rape 

and ‚the time for prosecuting Jackson for Unlawful Sexual 

Conduct cannot be extended by the longer statute of limitations 

applicable to the prosecution of rape.‛ Id. ¶ 15. Notwithstanding 

this error, we refused to reverse the conviction, holding that 

Jackson forfeited the statute-of-limitations defense when he 

failed to raise it before the jury convicted him of unlawful sexual 

conduct. Id. ¶¶ 34–35.

¶6 Next, Jackson filed a petition for relief pursuant to the 

Post-Conviction Remedies Act (PCRA), claiming he was 

deprived of his constitutional right to effective assistance of 

counsel when his trial counsel failed to timely assert the statuteof-limitations defense to the unlawful-sexual-conduct charge.

¶7 The State moved for summary judgment, arguing that 

Jackson did not establish that his counsel failed to discover the 

statute-of-limitations defense or that she could have had no 

legitimate strategic reason for forfeiting it. The State also 

asserted that Jackson failed to show a reasonable probability he 

would have received a more favorable result if counsel had 

performed differently.
Jackson v. State

20130957-CA 4 2015 UT App 217

¶8 Jackson responded that his counsel’s failure to investigate 

and to raise the statute-of-limitations defense until after trial was 

not a conscious, strategic decision, and her performance 

therefore fell below the range of reasonable professional 

assistance. Further, he was prejudiced because there was ‚no 

question that the charge he was convicted of would have been 

dismissed‛ had trial counsel raised the defense.

¶9 The district court granted summary judgment and 

dismissed Jackson’s petition, ruling that he had not 

demonstrated prejudice as required by Strickland v. Washington, 

466 U.S. 668 (1984).

3 Specifically, the court considered ‚whether 

[Jackson had] established a genuine issue of material fact that 

there is a reasonable probability that, but for his counsel’s failure 

to recognize and timely assert his statute of limitations defense 

to unlawful sexual conduct, the outcome of the trial would have 

been different.‛ It reasoned that by allowing ‚the unlawful 

sexual conduct charge [to] go to the jury despite the fact that the 

statute of limitations had expired, [Jackson] received the benefit 

of a conviction of a lesser crime.‛ Further, the court determined 

that the jury would have convicted Jackson of rape if the lesser 

charge had been dismissed. As a result, it concluded there was 

no reasonable probability of an acquittal even if counsel had 

recognized and timely asserted Jackson’s statute-of-limitations 

defense.

¶10 The district court’s decision relied heavily on this court’s 

dicta in the decision resolving Jackson’s direct appeal. State v. 

 

3. In his petition, Jackson also argued that his appellate counsel 

was ineffective for failing to assert his ineffective-assistance-oftrial-counsel claim on direct appeal. Because the district court 

determined that this second claim depended upon the success of 

Jackson’s first claim for relief, it dismissed Jackson’s second 

claim after dismissing his first.
Jackson v. State

20130957-CA 5 2015 UT App 217

Jackson, 2011 UT App 318, 263 P.3d 540. In holding that he 

waived his statute-of-limitations defense at trial, this court 

cautioned that Jackson would face a ‚heavy burden to establish 

counsel’s ineffectiveness.‛ Id. ¶ 32.

[W]here some charges are time-barred and some 

are not, as in this case, it is appropriate to consider 

whether the defendant obtained a tactical 

advantage by failing to raise the limitations 

defense at trial. If the evidence is strong and the 

risk of conviction on the greater offense with 

higher penalties is likely, the defendant might 

consciously refrain from asserting a statute of 

limitations defense to a charge with lesser 

penalties. If the jury has no other option, conviction 

of the greater charge may be almost certain. By 

allowing the lesser charge to go to the jury despite 

the fact that the statute of limitations has expired, 

the defendant may receive the benefit of a 

conviction on a lesser crime.

Id. (footnotes omitted). Jackson now appeals from the district

court’s entry of summary judgment and its dismissal of his

PCRA petition. 

ISSUE AND STANDARD OF REVIEW

¶11 ‚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.‛ Ross 

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

quotation marks omitted). ‚Similarly, we review a grant of 

summary judgment for correctness, granting no deference to the 

*lower+ court.‛ Id. (alteration in original) (citation and internal 

quotation marks omitted). We will affirm such a decision ‚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 
Jackson v. State

20130957-CA 6 2015 UT App 217

matter of law.‛ Id. (citation and internal quotation marks 

omitted); see also Utah R. Civ. P. 56(c). In conducting our 

analysis, ‚we view the facts and all reasonable inferences drawn 

therefrom in the light most favorable to the nonmoving party.‛ 

Ross, 2012 UT 93, ¶ 18 (citation and internal quotation marks 

omitted).

ANALYSIS

¶12 On appeal, Jackson argues that his counsel’s ‚failure to 

identify and timely assert the statute of limitations‛ defense to

the lesser charge was ‚not tactical‛ and ‚fell below the range of 

reasonable professional assistance.‛ Further, her decision ‚could 

not have been strategic because she was unaware that the statute 

of limitations on unlawful sexual conduct had expired until after 

trial.‛ The State counters that ‚Jackson failed to demonstrate . . . 

that *counsel’s+ decision to offer the jury a lower but time barred 

charge fell below an objective standard of reasonableness.‛ 

According to the State, ‚counsel’s forfeiture of the statute of 

limitations defense was an objectively sound trial strategy—

whether counsel knew it or not.‛ Jackson responds that the 

question is not whether the strategy was reasonable, but whether 

counsel’s failure to identify and examine a defense was 

reasonable. We conclude that Jackson has not demonstrated 

deficiency in his trial counsel’s performance.

¶13 In the context of a summary judgment motion in a PCRA 

proceeding premised on a claim of ineffective assistance of 

counsel, Jackson ‚bears the burden of proving his underlying 

legal claims of ineffective assistance of counsel.‛ See Menzies v. 

State, 2014 UT 40, ¶ 81, 344 P.3d 581. When the State files its 

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.‛ Id. (alteration in original) (citation and 

internal quotation marks omitted). ‚Once the State makes that 
Jackson v. State

20130957-CA 7 2015 UT App 217

showing, the burden of proof then shifts to [Jackson,] the 

nonmoving party . . . .‛ See id. Because Jackson bears the burden 

of proving ineffective assistance, he ‚cannot rest on *his+ 

allegations alone‛ but instead ‚must set forth specific facts 

showing that there is a genuine issue for trial.‛ Id. (alteration in 

original) (citations and internal quotation marks omitted).

¶14 Under the PCRA, a criminal defendant may obtain relief if 

he establishes he received ineffective assistance of counsel.4 Utah 

Code Ann. § 78B-9-104(1)(d) (LexisNexis 2012). To prevail on 

such a claim, Jackson must meet his burden under Strickland v. 

Washington, 466 U.S. 668 (1984), which requires a defendant to 

show (1) ‚counsel’s performance was deficient‛ and (2) ‚the 

deficient performance prejudiced the defense.‛ Id. at 687.

¶15 ‚A satisfactory showing of both parts of the Strickland test 

is required for the defendant to prevail.‛ Menzies, 2014 UT 40, 

¶ 78. ‚As a result, it is not necessary for us to address both 

components of the inquiry if we determine that a defendant has 

made an insufficient showing on one.‛ Id. (citation and internal 

quotation marks omitted). Because Jackson has failed to 

demonstrate deficient performance, we do not address the 

prejudice prong.5

 

4. Although Jackson may not raise an ineffective-assistance-oftrial-counsel claim under the PCRA without also demonstrating 

that his appellate attorney was deficient, because Jackson’s trial 

counsel also represented him on direct appeal, we may examine 

his claim that she rendered constitutionally ineffective 

assistance. See Johnson v. State, 2011 UT 59, ¶ 11, 267 P.3d 880.

5. Although the district court’s grant of summary judgment 

relied on its conclusion that Jackson failed to show prejudice 

stemming from his counsel’s performance, we may affirm on 

‚any legal ground or theory apparent on the record.‛ Bailey v. 

(continued...)
Jackson v. State

20130957-CA 8 2015 UT App 217

¶16 Our court ‚must indulge in a strong presumption that 

counsel’s conduct falls within the wide range of reasonable 

professional assistance.‛ Strickland, 466 U.S. at 689. To overcome 

this presumption, Jackson must demonstrate that counsel’s 

‚representation fell below an objective standard of 

reasonableness‛ under ‚prevailing professional norms‛ and was 

not part of a ‚sound trial strategy.‛ See id. at 688–89 (citation and 

internal quotation marks omitted). Given the ‚strong 

presumption of competence, we need not come to a conclusion 

that counsel, in fact, had a specific strategy in mind.‛ State v. 

Tennyson, 850 P.2d 461, 468 (Utah Ct. App. 1993) (citing 

Strickland, 466 U.S. at 689). ‚Instead, we need only articulate 

some plausible strategic explanation for counsel’s behavior.‛ Id.

This ‚calls for an inquiry into the objective reasonableness of 

counsel’s performance, not counsel’s subjective state of mind.‛ 

Harrington v. Richter, 562 U.S. 86, 109–10 (2011) (citing Strickland, 

466 U.S. at 688).

¶17 Jackson has not overcome the strong presumption that his 

trial counsel’s waiver of the statute-of-limitations defense might 

be considered sound trial strategy. His affidavit merely alleges 

that his attorney did not discuss the statute-of-limitations issue 

with him before trial, did not inform him that she made a 

strategic decision about proceeding with the unlawful-sexual-

 

(...continued)

Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158 (citation and internal 

quotation marks omitted); see also Butterfield v. Cook, 817 P.2d 

333, 338 (Utah Ct. App. 1991) (declining to reach the issue of 

whether counsel performed deficiently and instead affirming on 

the alternative basis that counsel’s performance was not 

prejudicial).
Jackson v. State

20130957-CA 9 2015 UT App 217

conduct charge, and was unaware of the possibility.

6 This is not 

enough to rebut the ‚presumption that, under the circumstances, 

the challenged action might be considered sound trial strategy.‛ 

See Strickland, 466 U.S. at 687–88 (citation and internal quotation 

marks omitted). Accordingly, we consider whether such a 

tactical decision would fall within the ‚wide range of reasonable 

professional assistance.‛ See id. at 689.

¶18 In some instances, reasonable trial counsel may decide her 

client would benefit from submitting to the jury an instruction 

on a time-barred lesser charge. ‚*I+t has long been recognized 

that [an instruction on a lesser offense] can . . . be beneficial to 

the defendant because it affords the jury a less drastic alternative 

than the choice between conviction of the offense charged and 

acquittal.‛ Beck v. Alabama, 447 U.S. 625, 633 (1980). As our 

supreme court has acknowledged, ‚the availability of the ‘third 

option’—the choice of conviction of a lesser offense rather than 

conviction of the greater or acquittal—gives the defendant the 

benefit of the reasonable doubt standard.‛ State v. Baker, 671 P.2d 

152, 157 (Utah 1983). But the absence of a lesser-offense 

instruction and the presence of an ‚all-or-nothing choice‛ may 

‚increase[] the risk that the jury will convict . . . to avoid setting 

the defendant free.‛ Spaziano v. Florida, 468 U.S. 447, 455 (1984).

On Jackson’s direct appeal, this court recognized the potential 

benefits of an instruction on a time-barred lesser offense. State v. 

Jackson, 2011 UT App 318, ¶ 32, 263 P.3d 540. This court also

acknowledged the possibility that a defendant like Jackson 

might consciously refrain from asserting a statute-of-limitations 

defense to a charge with lesser penalties where the evidence is 

 

6. Jackson’s affidavit was required to ‚set forth . . . facts as would 

be admissible in evidence,‛ but much of it relies on inadmissible 

hearsay and was not ‚made on personal knowledge,‛ as the rule 

requires. Utah R. Civ. P. 56(e).
Jackson v. State

20130957-CA 10 2015 UT App 217

strong and the risk of conviction on a greater offense with higher 

penalties is likely.7Id.

¶19 On this appeal, Jackson asks us to review trial counsel’s 

performance subjectively. But our consideration of counsel’s 

performance does not depend on ‚counsel’s subjective state of 

mind.‛ Harrington, 562 U.S. at 109–10 (citing Strickland, 466 U.S. 

at 688). Rather, we focus on the ‚objective reasonableness of 

counsel’s performance.‛ Id. (citing Strickland, 466 U.S. at 688).

Under the circumstances of this case, professionally competent 

trial counsel may have reasonably chosen to forgo raising a 

statute-of-limitations defense to the lesser charge of unlawful

sexual conduct. Had she raised the defense, the court likely 

would have dismissed the alternative charge and the jury would 

have been left with the choice of convicting Jackson of firstdegree-felony rape or acquitting him entirely. Objectively,

counsel could have reasonably concluded that faced with an allor-nothing choice, there was a greater likelihood the jury would 

convict Jackson of the more serious charge. And reasonable

counsel may well have decided that the risk of conviction on the 

time-barred lesser charge was worth it given the reduced risk of 

a conviction on the greater charge.8 Because waiving the statute-

 

7. In a similar vein, this court generally affords deference to 

defense counsel’s decision to request or not request a lesserincluded-offense instruction in recognition that ‚counsel is in the 

best position to gauge the defendant’s likelihood of defeating a 

charge outright and to weigh the possibility that acquittal is not 

in the cards but that a jury might be satisfied with a conviction 

on a lesser charge.‛ State v. Binkerd, 2013 UT App 216, ¶ 31, 310 

P.3d 755.

8. In fact, Jackson’s counsel likely recognized the advantages of a 

lesser offense being submitted to the jury. After the jury posed a 

question to the court during its deliberations regarding consent, 

(continued...)
Jackson v. State

20130957-CA 11 2015 UT App 217

of-limitations defense in this context would constitute a sound 

trial strategy, we conclude Jackson’s trial counsel’s performance 

was not objectively deficient.

CONCLUSION

¶20 Jackson has not demonstrated that his counsel’s 

performance fell below an objective standard of reasonableness,

and we therefore conclude his ineffective-assistance-of-counsel 

claim fails. As a consequence, we affirm the district court’s grant 

of summary judgment and dismissal of Jackson’s PCRA petition.

 

(...continued)

counsel affirmatively requested an additional jury instruction on 

another lesser offense—incest—even though, like the crime of 

unlawful sexual conduct, the statute of limitations had expired. 

This request also reflected a reasonable strategic choice.