Utah Court of Appeals

What are the requirements for a Utah Rule 23B remand motion? State v. Johnston Explained

2000 UT App 290
No. 971327-CA
October 19, 2000
Denied

Summary

Johnston was convicted of sodomy, sexual abuse of children, and lewdness involving two young girls. His trial counsel withdrew before trial and new counsel appeared three weeks before trial. Johnston moved for a Rule 23B remand claiming ineffective assistance based on failure to investigate witnesses.

Analysis

The Utah Court of Appeals in State v. Johnston provided comprehensive guidance on Utah Rule of Appellate Procedure 23B, which allows defendants to seek remand for additional fact-finding to support ineffective assistance of counsel claims on direct appeal.

Background and Facts

Johnston was convicted of sodomy, sexual abuse of children, and lewdness involving two young girls. His original counsel withdrew before trial citing an “irreconcilable rift,” and new counsel appeared just three weeks before trial. Trial counsel called twelve witnesses for the defense but Johnston later claimed counsel was ineffective for failing to investigate and interview additional witnesses.

Key Legal Issues

The central issue was whether Johnston met the requirements for a Rule 23B remand. The court identified four essential requirements: (1) the claim must turn on facts not already in the record, (2) the facts must be nonspeculative and demonstrable through affidavits, (3) the facts must show constitutionally deficient performance, and (4) the facts must demonstrate actual prejudice.

Court’s Analysis and Holding

The court denied Johnston’s motion because his allegations were largely speculative. Johnston submitted his own affidavit and one from his private investigator claiming certain witnesses would provide beneficial testimony, but failed to obtain affidavits from the proposed witnesses themselves. The court emphasized that Rule 23B requires defendants to present known facts, not to “discover” a factual basis for ineffectiveness claims through remand proceedings.

Practice Implications

This decision clarifies that Rule 23B is not a discovery tool for building ineffective assistance claims. Practitioners must obtain direct witness affidavits detailing specific testimony and availability before seeking remand. The court distinguished cases involving completed evidentiary hearings and emphasized that Rule 23B serves only to supplement the record with facts already known to counsel, not to conduct “fishing expeditions” for potential evidence.

Original Opinion

Link to Original Case

Case Details

Case Name

State v. Johnston

Citation

2000 UT App 290

Court

Utah Court of Appeals

Case Number

No. 971327-CA

Date Decided

October 19, 2000

Outcome

Denied

Holding

A Rule 23B motion for remand requires nonspeculative facts supported by affidavits from proposed witnesses, not speculation about what witnesses might testify to.

Standard of Review

Rule 23B remand standards – nonspeculative facts not fully appearing in the record that could support ineffective assistance of counsel claims

Practice Tip

When filing a Rule 23B motion, obtain affidavits directly from proposed witnesses detailing their specific testimony and availability, rather than relying on investigator or defendant speculation about what witnesses might say.

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