Utah Court of Appeals
What are the requirements for a Utah Rule 23B remand motion? State v. Johnston Explained
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.
Practice Areas & Topics
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.
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.
Need Appellate Counsel?
Lotus Appellate Law handles appeals before the Utah Court of Appeals, Utah Supreme Court, California Court of Appeal, and the United States Court of Appeals for the Tenth Circuit.
Related Court Opinions
About these Decision Summaries
Lotus Appellate Law publishes these summaries to keep practitioners informed — not as legal advice. Each case turns on its own facts. If a decision here is relevant to your matter, we’re happy to discuss it.