State v. Price , 279 Utah Adv. Rep. 29 ( 1995 )

BENCH, Judge,

concurring in the result:

The main opinion clearly reaches the right result. I write separately to clarify potentially misleading dicta contained in the main opinion.

For the proposition that we decide whether a confession was admissible, the main opinion follows the analysis of State v. Mabe, 864 P.2d 890 (Utah 1993). The Mabe standard was necessarily modified by State v. Pena, 869 P.2d 932 (Utah 1994). For questions of mixed fact and law, we are now to give the trial court “some degree of deference.” Id. at 938. “There are currently just two exceptions to this general rule: volun-tariness of consent and ... ineffectiveness of counsel.” State v. Perry, 899 P.2d 1232, 1245 (Utah App.1995) (Bench, J., concurring).

The main opinion also purports to definitively decide whether defendant was denied effective assistance of counsel, an issue that was raised for the first time on appeal. The supreme court has expressly held that we can review ineffective counsel claims raised for the first time on appeal only in “the unusual situation,” under “peculiar, narrow circumstances.” State v. Humphries, 818 P.2d 1027, 1029 (Utah 1991); accord State v. Garrett, 849 P.2d 578, 580 (Utah App.), cert. denied, 860 P.2d 943 (Utah 1993). This is not such a ease.

For the foregoing reasons, I concur only in the result.