remand rule in Utah

2025“A remand under rule 23B will only be granted 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.” State v. Lee, 2014 UT App 4, ¶ 5 , 318 P.3d 1164 (cleaned up).

2025“A remand under rule 23B will only be granted 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.” State v. Lee, 2014 UT App 4, ¶ 5 , 318 P.3d 1164 (cleaned up).

2026“A remand under rule 23B is 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.” State v. Tuinman, 2023 UT App 83, ¶ 53 , 535 P.3d 362 (cleaned up).

2026“A remand under rule 23B is 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.” State v. Tuinman, 2023 UT App 83, ¶ 53 , 535 P.3d 362 (cleaned up).

2020After the remand hearing, at which two witnesses testified Victim had previously engaged in homosexual conduct, the court found that trial counsel “did not perform deficiently because a more detailed proffer would not have changed [its] pre-trial ruling,” that “reasonable counsel could decide that Victim’s trial testimony did not open the door to the proposed impeachment,” and that “there was no prejudice.” Thus, even if trial counsel had provided a detailed proffer of the proposed testimony regarding Victim’s prior sexual behavior to the court before trial, the court would have denied the mot

2004Furthermore, because there was no evidence produced at the remand hearing to demonstrate Wright’s alleged “minor role” in the operation of the clandestine lab, an impartial decisionmaker could have reasonably concluded that Wright was heavily involved in the operation of the clandestine lab found in his bedroom. ¶24 In short, a “reasonable], conscientious[ ], and impartial ],” Strickland, 466 U.S. at 695 , 104 S.Ct. at 2068 , decisionmaker could have concluded that Wright’s unlawful conduct' and criminal history warranted a sentence of five years to life notwithstanding Wright’s difficult chil

2025We infer from Counsel’s continued representation of Braget through sentencing and Counsel’s willingness to speak with Braget’s appellate counsel that Braget has had an opportunity to consult with Counsel regarding what transpired during trial. 20230535-CA 20 2025 UT App 39 Cedar City v. Braget speculation,” State v. Curtis, 2013 UT App 287, ¶ 54 , 317 P.3d 968 (cleaned up), Braget has failed to meet her burden to merit a remand under rule 23B.

2025We infer from Counsel’s continued representation of Braget through sentencing and Counsel’s willingness to speak with Braget’s appellate counsel that Braget has had an opportunity to consult with Counsel regarding what transpired during trial. 20230535-CA 20 2025 UT App 39 Cedar City v. Braget speculation,” State v. Curtis, 2013 UT App 287, ¶ 54 , 317 P.3d 968 (cleaned up), Braget has failed to meet her burden to merit a remand under rule 23B.

2025“If the motion cannot meet the test for ineffective assistance of counsel, then there is no reason to remand the case.” State v. Samples, 2022 UT App 125, ¶ 57 , 521 P.3d 526 (cleaned up), cert. denied, 525 P.3d 1279 (Utah 2023). ¶44 In her rule 23B motion, Braget seeks to supplement the record in support of a claim that Counsel provided ineffective assistance by failing “to advise [Braget] of the rights implicated by calling into her virtual trial without video” and by failing “to discuss with [Braget] the ways to protect these rights during trial.” 5 In support of this claim, Braget provides

2025“If the motion cannot meet the test for ineffective assistance of counsel, then there is no reason to remand the case.” State v. Samples, 2022 UT App 125, ¶ 57 , 521 P.3d 526 (cleaned up), cert. denied, 525 P.3d 1279 (Utah 2023). ¶44 In her rule 23B motion, Braget seeks to supplement the record in support of a claim that Counsel provided ineffective assistance by failing “to advise [Braget] of the rights implicated by calling into her virtual trial without video” and by failing “to discuss with [Braget] the ways to protect these rights during trial.” 5 In support of this claim, Braget provides

2022And to support its contentions, the party must submit affidavits that demonstrate both the deficient performance by counsel and the resulting prejudice to the defendant,” State v. Griffin, 2015 UT 18, ¶ 17 , 441 P.3d 1166 (quotation simplified); cf. In re C.M.R., 2020 UT App 114, ¶ 31 (stating that the mother “attached extra-record evidence uncovered by [counsel] to her appellate brief” in support of her request for remand on her ineffective assistance claim); In re S.H., 2007 UT App 8, ¶ 15 (stating that the mother filed an affidavit detailing evidence to support her ineffective assistance cl

2022And to support its contentions, the party must submit affidavits that demonstrate both the deficient performance by counsel and the resulting prejudice to the defendant,” State v. Griffin, 2015 UT 18, ¶ 17 , 441 P.3d 1166 (quotation simplified); cf. In re C.M.R., 2020 UT App 114, ¶ 31 (stating that the mother “attached extra-record evidence uncovered by [counsel] to her appellate brief” in support of her request for remand on her ineffective assistance claim); In re S.H., 2007 UT App 8, ¶ 15 (stating that the mother filed an affidavit detailing evidence to support her ineffective assistance cl

2020“Because the defendant must show prejudice to prevail under either argument, the common standard merely functions as an analytical shortcut that avoids treatment of the other prongs of the ineffective assistance and plain error standards.” State v. Litherland, 2000 UT 76 , ¶ 31 n.14, 12 P.3d 92 ; see also State v. McNeil, 2016 UT 3, ¶ 29 , 365 P.3d 699 (“[T]he prejudice test is the same whether under the claim of ineffective assistance or plain error.”). 20190150-CA 13 2020 UT App 129 State v. Henfling ¶32 Fifth, related to one claim of ineffective assistance of counsel, Henfling seeks a reman

2020“Because the defendant must show prejudice to prevail under either argument, the common standard merely functions as an analytical shortcut that avoids treatment of the other prongs of the ineffective assistance and plain error standards.” State v. Litherland, 2000 UT 76 , ¶ 31 n.14, 12 P.3d 92 ; see also State v. McNeil, 2016 UT 3, ¶ 29 , 365 P.3d 699 (“[T]he prejudice test is the same whether under the claim of ineffective assistance or plain error.”). 20190150-CA 13 2020 UT App 129 State v. Henfling ¶32 Fifth, related to one claim of ineffective assistance of counsel, Henfling seeks a reman

2025ANALYSIS ¶23 To succeed on an ineffective assistance claim, Cortez must make a two-part showing: (1) that Counsel’s performance was deficient in that it “fell below an objective standard of reasonableness,” and (2) that this deficient performance “prejudiced the defense” such that “there is a reasonable probability that, but for [C]ounsel’s unprofessional errors, the 20220352-CA 10 2025 UT App 116 State v. Cortez-Izarraraz result of the proceeding would have been different.” See Strickland v. Washington, 466 U.S. 668 , 687–88, 694 (1984); accord State v. Scott, 2020 UT 13, ¶ 28 , 462 P.3d 350

2025ANALYSIS ¶23 To succeed on an ineffective assistance claim, Cortez must make a two-part showing: (1) that Counsel’s performance was deficient in that it “fell below an objective standard of reasonableness,” and (2) that this deficient performance “prejudiced the defense” such that “there is a reasonable probability that, but for [C]ounsel’s unprofessional errors, the 20220352-CA 10 2025 UT App 116 State v. Cortez-Izarraraz result of the proceeding would have been different.” See Strickland v. Washington, 466 U.S. 668 , 687–88, 694 (1984); accord State v. Scott, 2020 UT 13, ¶ 28 , 462 P.3d 350

2023“A remand under rule 23B will be granted 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.” State v. Norton, 2015 UT App 263, ¶ 3 , 361 P.3d 719 (quotation simplified).

2023“A remand under rule 23B will be granted 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.” State v. Norton, 2015 UT App 263, ¶ 3 , 361 P.3d 719 (quotation simplified).

2023“A remand under rule 23B is 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.” State v. Florez, 2020 UT App 76, ¶ 16 , 465 P.3d 307 (quotation simplified). 20210242-CA 21 2023 UT App 83 State v. Tuinman ANALYSIS ¶54 We discuss Stephanie’s five claims in turn.

2023“A remand under rule 23B is 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.” State v. Florez, 2020 UT App 76, ¶ 16 , 465 P.3d 307 (quotation simplified). 20210242-CA 21 2023 UT App 83 State v. Tuinman ANALYSIS ¶54 We discuss Stephanie’s five claims in turn.

2020“A remand under rule 23B will only be granted upon a nonspeculative allegation of facts . . . which, if true, could support a determination that counsel was ineffective.” State v. Bowen, 2019 UT App 163 , ¶ 21 n.9, 451 P.3d 1050 (cleaned up); see Utah R.

2020“A remand under rule 23B will only be granted upon a nonspeculative allegation of facts . . . which, if true, could support a determination that counsel was ineffective.” State v. Bowen, 2019 UT App 163 , ¶ 21 n.9, 451 P.3d 1050 (cleaned up); see Utah R.

2020“A remand under rule 23B is 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. Popp, 2019 UT App 173, ¶ 20 , 453 P.3d 657 (quotation simplified). (…continued) directed verdict issue, that would have resulted in dismissal of the attempted burglary charge (an eventuality that would have rendered the rule 23B motion moot), and because the analysis regarding the lesser-included-offense instruction is relevant to the rule 23B discussion that follows. 20180827

2020“A remand under rule 23B is 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. Popp, 2019 UT App 173, ¶ 20 , 453 P.3d 657 (quotation simplified). (…continued) directed verdict issue, that would have resulted in dismissal of the attempted burglary charge (an eventuality that would have rendered the rule 23B motion moot), and because the analysis regarding the lesser-included-offense instruction is relevant to the rule 23B discussion that follows. 20180827

2018We deny the motion for remand and affirm the restitution order. ¶2 "A remand under rule 23B will be granted 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." State v. Hand , 2016 UT App 26 , ¶ 2, 367 P.3d 1052 (quotation simplified).

2018We deny the motion for remand and affirm the restitution order. ¶2 "A remand under rule 23B will be granted 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." State v. Hand , 2016 UT App 26 , ¶ 2, 367 P.3d 1052 (quotation simplified).

2026In its original ruling, the juvenile court deemed important the fact that Alice and Liam “were very young” when they were removed from the family home and, “as a result, they had a very short time to be with [Siblings].” In re A.H., 2022 UT App 114, ¶ 29 .

2026Indeed, Appointed Counsel for Mother acknowledged, during the remand hearing, that “in hindsight, they probably should have asked for a continuance based on the new dynamics and shift in DCFS[’s] desire to permanently separate the [Children].” Appointed Counsel’s actions left Father in the position of being unprepared for the trial and unable to call many 20210353-CA 26 2026 UT App 88 In re A.H. of the witnesses that he would have needed to call in order to present an effective case. ¶60 The GAL argues briefly that Appointed Counsel could have had strategic reasons, at trial, not to call the w

2026So, for purposes of our prejudice inquiry, we assess whether the October 2020 trial would have come out differently if the court, at that moment in time, had heard the testimony presented at the remand hearing. 20210353-CA 29 2026 UT App 88 In re A.H. three general categories: (1) the court’s conclusion that Alice and Liam’s bonds with Siblings and Parents were not particularly strong; (2) the court’s concerns about the risks of changing placements, especially where Alice’s and Liam’s attachment to their foster family was strong; and (3) the court’s conclusions about the longer-term effects of

2025Accordingly, we deny his rule 23B motion and affirm his convictions. 20230081-CA 12 2025 UT App 27

2025We infer from Counsel’s continued representation of Braget through sentencing and Counsel’s willingness to speak with Braget’s appellate counsel that Braget has had an opportunity to consult with Counsel regarding what transpired during trial. 20230535-CA 20 2025 UT App 39 Cedar City v. Braget speculation,” State v. Curtis, 2013 UT App 287, ¶ 54 , 317 P.3d 968 (cleaned up), Braget has failed to meet her burden to merit a remand under rule 23B.

2025ISSUES AND STANDARDS OF REVIEW ¶10 Relying on rule 403 of the Utah Rules of Evidence, Roybal asserts that the district court “erred when it ruled that the details of any previous violence by [Girlfriend] against Roybal would be admissible if [Counsel] questioned [Girlfriend] about her previous violence against Roybal.” “We review the [district] court’s decision to admit or exclude evidence under rule 403 of the Utah Rules of Evidence for an abuse of discretion.” 2 In re Z.M., 2014 UT App 118 , ¶ 4, 327 P.3d 1220 . 2.

2025ISSUES AND STANDARDS OF REVIEW ¶10 Relying on rule 403 of the Utah Rules of Evidence, Roybal asserts that the district court “erred when it ruled that the details of any previous violence by [Girlfriend] against Roybal would be admissible if [Counsel] questioned [Girlfriend] about her previous violence against Roybal.” “We review the [district] court’s decision to admit or exclude evidence under rule 403 of the Utah Rules of Evidence for an abuse of discretion.” 2 In re Z.M., 2014 UT App 118 , ¶ 4, 327 P.3d 1220 . 2.

2025“An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” Id. (quotation simplified). ¶26 Finally, in conjunction with his opening brief, Christian has filed a motion requesting a remand under rule 23B of the Utah Rules of Appellate Procedure.

2025ANALYSIS ¶23 To succeed on an ineffective assistance claim, Cortez must make a two-part showing: (1) that Counsel’s performance was deficient in that it “fell below an objective standard of reasonableness,” and (2) that this deficient performance “prejudiced the defense” such that “there is a reasonable probability that, but for [C]ounsel’s unprofessional errors, the 20220352-CA 10 2025 UT App 116 State v. Cortez-Izarraraz result of the proceeding would have been different.” See Strickland v. Washington, 466 U.S. 668 , 687–88, 694 (1984); accord State v. Scott, 2020 UT 13, ¶ 28 , 462 P.3d 350

2024A remand under this rule is “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.” Id.

2024“A remand under rule 23B is 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.” State v. Tuinman, 2023 UT App 83, ¶ 53 , 535 P.3d 362 (quotation simplified), cert. denied, 540 P.3d 79 (Utah 2023). 20210710-CA 6 2024 UT App 151 State v. King ANALYSIS I.

2024And with his briefing on appeal, Schoenenberger has filed a motion for a remand under rule 23B of the Utah Rules of Appellate Procedure, asking for an opportunity 20190703-CA 9 2024 UT App 187 State v. Schoenenberger to supplement the record with findings in support of a number of ineffective assistance of counsel claims.

2024Therefore, we deny Schoenenberger’s motion for a remand under rule 23B and affirm his conviction. 20190703-CA 37 2024 UT App 187

2024Thus, even if Trial Counsel’s approach to this issue was somehow unreasonable, this claim would fail for a lack of prejudice. 20180319-CA 36 2024 UT App 11 State v. Forbush for further factual development on these claims, and with the benefit of that record, we reject each of them. ¶88 First, Landlord testified at the remand hearing.