State v. Elkface, 527 P.3d 820

Background

Elkface entered guilty pleas in three new criminal cases as part of a global plea agreement while still on probation in two earlier cases. The plea included “tracking” the unresolved probation cases to sentencing.
The sentencing judge, Jeremiah Humes, had previously served as a line prosecutor who personally prosecuted Elkface in the probation matters and filed multiple adversarial pleadings seeking probation revocation.
At an earlier hearing Judge Humes gave a limited on-the-record disclosure that he “may be disqualified” because of his former office; Elkface — without a recorded private discussion outside the judge’s presence — waived any conflict and agreed to his presiding.
The presentence investigation recommended probation (0–90 days jail midpoint 45 days); AP&P and the State recommended an upward departure to prison citing probation violations and substance abuse; the judge imposed prison sentences consistent with the upward-departure recommendation and adjudicated the probation cases unsuccessful.
On appeal Elkface argued counsel was ineffective for failing to seek the judge’s disqualification (and separately raised a pregnancy-as-mitigation argument); the Court of Appeals found counsel’s failure to seek disqualification or insist on the proper waiver procedure was deficient and prejudicial, vacated the sentences, and remanded for resentencing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for failing to seek Judge Humes’s disqualification under Rule 2.11	Counsel was deficient for not moving to disqualify a judge who had personally prosecuted Elkface and had personal knowledge of disputed facts	Reasonable counsel could decline because recusal was not compelled and a motion might fail (distinguished by Grover)	Counsel’s performance was deficient; failure to seek disqualification undermined confidence in the outcome and prejudiced Elkface; sentences vacated and remanded
Whether the on-the-record waiver complied with Rule 2.11(D)	Waiver was invalid: judge’s disclosure was incomplete and Elkface was not given an opportunity outside the judge’s presence to consider waiver	The judge disclosed and parties waived on the record	Disclosure was inadequate and counsel should have insisted on the Rule 2.11(D) waiver procedure
Whether deficient performance prejudiced the defense	A new, impartial judge likely would have favored probation given pregnancy, guideline recommendation, treatment/work stability, and sobriety efforts	The sentencing judge properly considered criminal history and probation failures; outcome supported by evidence	Prejudice established: reasonable probability outcome would differ; confidence in sentencing undermined
Whether counsel was ineffective for not arguing pregnancy as a mitigating factor	Counsel should have argued pregnancy to avoid incarceration during pregnancy	State argued the issue is moot because Elkface was no longer pregnant; relief unavailable now	Court declined to reach the merits (disagreed that the issue is necessarily moot) because resentencing was ordered on disqualification grounds

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (establishes two-prong ineffective-assistance test: deficient performance and prejudice)
State v. Gallegos, 463 P.3d 641 (2020 UT) (describes prejudice inquiry as whether error undermines confidence in outcome)
State v. Scott, 462 P.3d 350 (2020 UT) (counsel performance judged objectively under the circumstances)
State v. Ray, 469 P.3d 871 (2020 UT) (assesses importance of an issue in evaluating counsel’s reasonableness)
State v. Silva, 456 P.3d 718 (2019 UT) (counsel not excused from raising arguments lacking established precedent)
State v. Grover, 509 P.3d 223 (2022 UT App) (recusal analysis where prior service as county attorney did not require recusal; distinguishes facts)
State v. Beckering, 346 P.3d 672 (2015 UT App) (standard when ineffective-assistance claim is raised for first time on appeal)