The URAP Rule 23B Motion: How to Develop IAC Evidence in a Utah Criminal Appeal

Ineffective assistance of counsel (IAC) is among the most frequently raised grounds in Utah criminal appeals. It is also among the most procedurally unusual — because the evidence needed to prove an IAC claim is often not in the trial record at all. The most common scenario: an attorney made a decision that looks inexplicable on paper, but the reason why is locked in the attorney’s notes, memory, or client files — none of which are part of the appellate record.

URAP Rule 23B is the uniquely criminal-procedure mechanism that addresses this problem directly. It is one of the most important — and most narrowly defined — tools in Utah criminal appellate practice, and understanding both its scope and its strict procedural requirements is essential before any IAC claim is developed for appeal.

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The Problem Rule 23B Solves

On a direct appeal, the Utah Court of Appeals reviews only the trial record. That record consists of documents filed in the district court, exhibits admitted at trial, and transcripts of proceedings. It does not include:

• What trial counsel told the defendant
• What investigation counsel conducted — or failed to conduct
• What witnesses counsel interviewed — or did not interview
• Why counsel made specific strategic decisions
• What a key witness would have said if called

When the IAC claim turns on any of these off-record matters — as most IAC claims do — the appellate court cannot evaluate it on the existing record. The evidence simply is not there.

Rule 23B provides a narrow, specific solution: a motion to remand the case to the trial court for an evidentiary hearing, at which the off-record evidence can be developed. Trial counsel can be compelled to testify. Witnesses who were not called at trial can now be heard. Documents outside the trial record can be formally introduced. The trial court then makes factual findings, which come back to the appellate court with the developed record.

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The Mechanics: Filed Concurrently With the Opening Brief

This is the most critical procedural requirement and the one most frequently missed by practitioners unfamiliar with Utah’s specific Rule 23B framework:

The Rule 23B motion must be filed concurrently with the appellant’s opening brief — not earlier, not later.

Under Rule 23B(a), the motion is filed simultaneously with the opening brief, not as a separate preliminary filing. The motion attaches the evidence outside the trial record — affidavits from witnesses, documents, declarations — along with statements attesting to their accuracy. The court then rules on the motion, either granting or denying the remand, before the full briefing continues.

If the Rule 23B motion is denied, the IAC claim must be argued on the existing trial record in the brief, which significantly limits what the court can evaluate. If it is granted, the case is remanded for the hearing, and after that hearing concludes, the record is supplemented and the briefing continues on the now-enriched record.

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What the Motion Must Show

Rule 23B sets a specific threshold for when remand is appropriate. The motion must show that:

1. The facts alleged — the off-record evidence being sought — are not currently in the record
2. The facts, if true, would support an IAC claim under the Strickland standard
3. The evidence being offered is more than speculative or conclusory — it must be based on specific facts the defendant can support through affidavits or other non-record evidence

The standard for granting a Rule 23B motion is not proof of the IAC claim itself — it is a threshold showing that the off-record evidence, if credited, would support a Strickland claim. The appellate court evaluates the motion based on the attached non-record evidence, asking: if this is true, does it potentially establish deficient performance and prejudice?

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What the Evidentiary Hearing Looks Like

When a Rule 23B remand is granted, the case returns to the district court for an evidentiary hearing focused specifically on the IAC claim. At that hearing:

• Trial counsel testifies — and can be cross-examined about the specific decisions at issue. The most common questions: did you interview this witness? What investigation did you conduct into this defense? Did you advise the defendant about this option? Why did you not object to this evidence?
• Witnesses who were not called at trial can now testify about what they would have said, establishing the significance of the omission
• Documents outside the trial record can be formally introduced
• The defendant may testify about what counsel told them and what they understood their options to be

After the hearing, the trial court makes findings of fact — specifically addressed to the IAC claim — and those findings come back to the Court of Appeals as part of the supplemented record. The Court of Appeals then evaluates the IAC claim de novo on the legal questions (Strickland performance and prejudice) while giving clear error deference to the factual findings from the evidentiary hearing.

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When Rule 23B Is — and Is Not — Appropriate

Rule 23B is appropriate when:

• The IAC claim requires facts outside the trial record to establish either deficient performance or prejudice
• A specific, identifiable witness was not called who would have provided material testimony in the defendant’s favor
• Counsel failed to investigate a defense that, if discovered, would have created a plausible alternative theory
• Counsel made a specific representation to the defendant about the effect of the plea that was incorrect and induced the plea
• Counsel failed to seek or present readily available mitigation evidence at sentencing

Rule 23B is NOT appropriate when:

• The IAC claim is fully evaluable on the existing trial record (for example, a claim that counsel failed to object to something clearly visible in the transcript — that objection’s absence is in the record)
• The claim amounts to a reargument of the trial outcome rather than a specific attorney performance issue
• The non-record evidence being offered is speculative rather than specific
• The issue is better addressed through PCRA proceedings, where Rule 23B’s concurrent-filing constraint does not apply

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The Relationship Between Rule 23B and PCRA

Rule 23B and the Post-Conviction Remedies Act address overlapping ground — both provide mechanisms for developing IAC evidence outside the trial record. But they operate in different proceedings:

Rule 23B is available only on direct appeal and only for IAC claims. It produces a remand that remains within the direct appeal track — the case returns to the appellate court after the evidentiary hearing.

PCRA is available after direct appeal concludes (or if no direct appeal was filed) and provides a broader range of grounds for post-conviction relief. For IAC claims, the PCRA offers essentially the same evidentiary hearing the Rule 23B remand provides, without the concurrent-filing constraint and without the limitation to claims that cannot be addressed on the trial record.

When a defendant had a direct appeal that did not include a Rule 23B motion — or where the Rule 23B motion was denied — the PCRA is the next avenue for developing the off-record IAC evidence. See our post on post-conviction relief in Utah for the PCRA framework.

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Strategic Considerations

Coordinate Rule 23B with the IAC argument in the brief. The Rule 23B motion and the IAC section of the opening brief should work together — the motion identifies the off-record evidence the court is being asked to develop, while the brief explains why that evidence, if established, would satisfy both prongs of Strickland. A motion without a fully developed legal argument in the brief, or a brief with an IAC argument unsupported by a Rule 23B motion, are both weaker than the coordinated approach.

Be specific in the motion. Vague assertions that “trial counsel failed to conduct adequate investigation” without identifying specific witnesses, specific documents, or specific lines of inquiry that were missed are unlikely to meet the threshold for a Rule 23B remand. The motion must identify what specific evidence would be developed at the hearing and why that evidence is material to the IAC claim.

Consider whether PCRA is a better vehicle. For IAC claims that require extensive off-record development — multiple witnesses, complex investigation, expert testimony about the applicable professional standard of care — PCRA proceedings may provide a more appropriate and comprehensive forum than a Rule 23B remand within a direct appeal.

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KEY RULE

URAP Rule 23B — Motion to Remand for IAC Findings

Rule 23B allows a criminal defendant to file a motion — concurrently with the opening brief on direct appeal — to remand the case to the district court for an evidentiary hearing on IAC claims requiring evidence outside the trial record. The motion must attach non-record evidence (affidavits, documents) and show that if the facts alleged are true, they would support an IAC claim under Strickland. If granted, the case is remanded for the hearing; factual findings from the hearing are reviewed for clear error; the ultimate IAC legal conclusions are reviewed de novo. Rule 23B is available only on direct appeal and only for IAC claims — other post-conviction grounds must proceed through the PCRA.

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Evaluating Whether a Rule 23B Motion Belongs in Your Appeal

The key question is whether the IAC claim requires facts outside the trial record to establish either deficient performance or prejudice. If yes, and if those facts can be supported by specific affidavits or other non-record evidence, a Rule 23B motion is worth serious consideration — but it must be filed concurrently with the opening brief or the opportunity is gone. Lotus Appellate Law drafts Rule 23B motions and coordinates them with IAC arguments in opening briefs for Utah criminal appeals. Contact us to evaluate whether your case warrants a Rule 23B remand.