When can appellate courts remand for ineffective assistance claims? State v. Popp Explained

The Utah Court of Appeals’ decision in State v. Popp illustrates the careful balance courts must strike when evaluating ineffective assistance of counsel claims that require supplementation of the record. While most of Popp’s claims failed, the court granted a partial Rule 23B remand on one specific issue, providing important guidance for practitioners.

Background and Facts

Justin Popp was convicted of two counts of sodomy upon a child based on allegations by F.H., his former stepdaughter. The case arose from a contentious custody dispute between Popp and F.H.’s mother. F.H. disclosed the abuse to her mother after witnessing her mother and stepfather having sex, then repeated the allegations in a recorded interview at the Children’s Justice Center. The State’s case relied primarily on F.H.’s testimony and the recorded interview.

Key Legal Issues

Popp raised multiple claims on appeal: defective jury instructions, improper admission of the recorded interview, and constitutional violations from testimony about his pre-arrest silence. Additionally, he filed a Rule 23B motion seeking remand to supplement the record for several ineffective assistance of counsel claims, including failure to call potential defense witnesses.

Court’s Analysis and Holding

The court rejected all direct appeal claims, finding that Popp had invited error on the jury instruction issue and that other claimed errors were either harmless or non-existent. However, the court granted Popp’s Rule 23B motion regarding his claim that trial counsel failed to investigate three potential defense witnesses. The court found that Popp’s affidavits contained non-speculative facts showing counsel received timely notice of these witnesses but failed to contact them, and that their testimony could have supported Popp’s defense theory that the victim’s mother had coached the allegations.

Practice Implications

This decision demonstrates the high bar for obtaining Rule 23B remands. Courts require detailed, non-speculative affidavits showing both deficient performance and potential prejudice. The court denied remand on Popp’s other ineffective assistance claims because his own expert witness had concluded the challenged interview was conducted properly, undermining any claim of prejudice. For practitioners, this emphasizes the importance of thorough witness investigation and the need for concrete evidence supporting Rule 23B motions.