(concurring in result in part):
Because the main opinion applies an erroneous standard of review to the claim of ineffective assistance of counsel, I concur only in the result of that section. I concur outright in the balance of the opinion.
In a motion for a new trial, defendant claimed his trial counsel had been ineffective. The trial court held an evidentiary hearing on this claim and allowed defendant the opportunity of establishing, on the record, how counsel was ineffective. At the hearing, trial counsel explained why he tried the ease as he did. The trial court weighed the evidence and concluded that trial counsel was effective. We should give the trial court’s determination broad deference. See State v. Pena, 869 P.2d 932, 935-39 (Utah 1994).
The main opinion correctly recognizes that the mandate of Pena applies where mixed questions of law and fact are involved. The main opinion properly applies Pena in its “Show Up Identification” section. The main opinion also correctly recognizes that a claim of ineffective assistance of counsel “presents a mixed question of law and fact.” In analyzing the ineffective assistance issue, the main opinion then proceeds to ignore its own analysis of Pena and to erroneously apply the “wooden” law/fact distinction criticized by Pena. Based on its failure to properly apply Pena, the main opinion mistakenly concludes that our review of ineffective assistance claims is de novo.
As discussed by the main opinion, the Pena court cited a number of reasons for *1244granting broad discretion to a trial court’s application of law to fact:
(i) when the facts to which the legal rule is to be applied are so complex and varying that no rule adequately addressing the relevance of all these facts can be spelled out; (ii) when the situation to which the legal principle to be applied is sufficiently new to the courts that appellate judges are unable to anticipate and articulate definitively what factors should be outcome determinative; and (in) when the trial judge has observed “facts,” such as a witness’s appearance and demeanor, relevant to the application of the law that cannot be adequately reflected in the record available to the appellate courts.
Pena, 869 P.2d at 939 (citing Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 Syracuse L.Rev. 635, 662-63 (1971)).
The main opinion erroneously argues that because fundamental Sixth Amendment rights are involved in this case, it follows that our review of ineffective assistance claims must be de novo. This argument is specious. In Pena, the issue involved the standard of review to be applied to reasonable-suspicion determinations. Reasonable suspicion, like ineffective assistance of counsel, implicates fundamental constitutional rights. However, this consideration did not influence the supreme court to automatically require a de novo review. Instead, the court relied upon the factors it had set out in determining the level of review.
We conclude that the proper standard of review to be applied to a trial court determination of whether a specific set of facts gives rise to reasonable suspicion is a determination of law and is reviewable non-deferentially for correctness, as opposed to being a fact determination reviewable for clear error. We further conclude that the reasonable-suspicion legal standard is one that conveys a measure of discretion to the trial judge when applying that standard to a given set of facts....
Our decision to characterize the review as something less than de novo is largely due to the first factor spelled out by Professor Rosenberg: Reasonable-suspicion determinations are highly fact dependent, and the fact patterns are quite variable. It would be impractical for an appellate court to review every reasonable suspicion determination de novo and then pronounce whether each unique factual setting rises to the level of reasonable-suspicion as a matter of law. If we were to try, it is likely that the resulting case law would be confusing and inconsistent.
Pena, 869 P.2d at 939-40 (footnotes omitted). Other recent cases have similarly treated issues involving fundamental constitutional rights. See, e.g., State v. Poole, 871 P.2d 531, 533 (Utah 1994) (determinations of probable cause entitled to same discretion as determinations of reasonable suspicion); State v. Strausberg, 895 P.2d 831, 834 n. 5 (Utah App.1995) (determination of custody for Miranda purposes entitled to broad discretion); State v. J.D.W., 259 Utah Adv.Rep. 22, 23, -P.2d-,-(Utah App.1995) (determination of entrapment entitled to broad discretion); State v. Teuscher, 883 P.2d 922, 929 (Utah App.1994) (determination of custody for Miranda purposes entitled to broad discretion); State v. Nguyen, 878 P.2d 1183, 1185-86 (Utah App.1994) (determinations of reasonable suspicion and probable cause entitled to deference).
The trial court’s determination of whether defendant’s trial counsel was effective is entitled to broad discretion under Pena’s first and third criteria. Like the reasonable-suspicion determination in Pena, ineffective assistance of counsel claims are “highly fact dependent, and the fact patterns are quite variable” such that “no rule adequately addressing the relevance of all these facts can be spelled out.” Pena, 869 P.2d at 939-40. Additionally, “[i]t would be impractical for an appellate court to review every [ineffective assistance of counsel] determination de novo and then pronounce whether each unique factual setting rises to the level of [ineffective assistance of counsel] as a matter of law.” Id. Finally, the trial court is in the best position to observe facts, such as trial counsel’s “appearance and demeanor” at the evi-dentiary hearing and his actions at trial, which are relevant to the determination of whether trial counsel was effective. Id. at *1245939. Therefore, the main opinion errs by reviewing this claim de novo.12
Pena’s general rule is that we will give deference to the trial court’s resolution of mixed questions of fact and law. There are currently just two exceptions to this general rule: voluntariness of consent and, after today’s decision, ineffectiveness of counsel. Henceforth, these two claims will be reviewed de novo, in our wisdom, without any deference to what the trial court determined.
No one has really articulated why we review some mixed questions more searchingly than others. I seriously doubt that anyone can. By definition, mixed questions are all fact sensitive and many also involve constitutional questions. It is inconsistent and confusing for us to review most questions under a deferential standard, but not all. At a time when we are complaining about a growing backlog of appeals, it also seems strange that we would actively encourage the filing of appeals in certain areas. I am particularly concerned about opening the floodgates for claims of ineffective assistance of counsel because the claim could be made in virtually every criminal ease. Indeed, it might be argued that an attorney who does not claim on appeal that trial counsel was ineffective is himself or herself ineffective or perhaps even guilty of malpractice.
The deference standard does not, in any way, abdicate our responsibility or insulate from review an erroneous decision of the trial court. If a trial court’s decision is truly out-of-line, we can correct it, as explained in Pena, even under the deference standard. We must restrain ourselves, however, from even suggesting we are engaged in a de novo review of fact-sensitive issues.
The main opinion errs by ignoring the mandate of Pena and by applying a nonde-ferential standard of review to its analysis of defendant’s claim of ineffective assistance of counsel. However, because on this issue the main opinion reaches the right outcome, I concur in the result.
. Ineffective assistance cases decided after Pena have been less than precise in their articulation of a standard of review. See main opinion at n. 7. It is not accurate to conclude, however, that because there was no articulation of a standard of review in these decisions it must necessarily have been a de novo review. In any event, under Pena, our review of this issue should not be de novo.