Print Version
Previous PageFile uploaded: 11/30/2018

Rule23B. Motion to remand for findings necessary to determination of ineffective assistance of counsel claim.

 

(a) Grounds for motion; time. Aparty to an appeal in a criminal case may movethe court to remand the case to the trial court for entry of findings offact, necessary for the appellatecourt's determination of a claim of ineffective assistance of counsel. The motion will be available only upon anonspeculative allegation of facts, not fullyappearing in the record on appeal, which, if true, could support adetermination that counsel was ineffective.

 

The motion must be filed before or at the time of the filingof the appellant's brief. Upon ashowing of good cause, the court may permit a motion to be filed after the filing of the appellant's brief.After the appeal is taken under advisement, a remand pursuant to this rule is available only on thecourt?s own motion and only if the claim hasbeen raised and the motion would have been available to a party.

 

(b) Content of motion. The content of the motion must conform to the requirements of Rule 23. Themotion must include or be accompanied byaffidavits alleging facts not fully appearing in the record on appeal that showthe claimed deficient performance ofthe attorney. The affidavits must also allege facts that show the claimed prejudice suffered by the appellant as aresult of the claimed deficient performance.The motion must also be accompanied by a proposed order of remand that identifies the ineffectiveness claims andspecifies the factual issues relevant toeach such claim to be addressed on remand.

 

(c) Orders of the court; response; reply. If a motion underthis rule is filed at the same timeas appellant?s principal brief, any response and reply must be filed within the time for the filing of the parties?respective briefs on the merits, unless otherwise specified by the court. If a motion is filedbefore appellant?s brief, the court may elect to defer ruling on the motion or decide the motion prior to briefing.

 

(c)(1) If the court defers the motion, the time for filingany response or reply will be the sameas for a motion filed at the same time as appellant?s brief, unless otherwise specified by the court.

 

(c)(2) If the court elects to decide the motion prior tobriefing, it will issue a notice thatany response must be filed within 30 days of the notice or within such othertime as the court may specify. Anyreply in support of the motion must be filed within 20 days after the response is served or withinsuch other time as the court may specify.

 

(c)(3) If the requirements of parts (a) and (b) of this rulehave been met, the court may orderthat the case be temporarily remanded to the trial court to enter findings offact relevant to a claim of ineffective assistance of counsel. The order of remand will identify theineffectiveness claims and specify the factualissues relevant to each such claim to be addressed by the trial court. Theorder will also direct the trial court to complete the proceedings on remandwithin 90 days of issuance of theorder of remand, absent a finding by the trial court of good cause for a delay of reasonable length.

 

(c)(4) If it appears to the appellate court that theappellant's attorney of record on theappeal faces a conflict of interest upon remand, the court will direct that counsel withdraw and that new counselfor the appellant be appointed or retained.

 

(d) Effect on appeal. If a motion is filed at the same time as appellant?s brief, the briefing schedule will not be stayedunless ordered by the court. If amotion is filed before appellant?sbrief, the briefing schedule will be automatically stayed until the court issues notice of whether itwill defer the motion or decide the motion beforebriefing.

 

(e) Proceedings before the trial court. Upon remand the trialcourt will promptly conduct hearings and take evidence as necessary to enterthe findings of fact necessary todetermine the claim of ineffective assistance of counsel. Any claims of ineffectiveness not identified in theorder of remand will not be considered by thetrial court on remand, unless the trial court determines that the interests ofjustice or judicial efficiencyrequire consideration of issues not specifically identified in the order of remand. Evidentiary hearings will beconducted without a jury and as soon aspracticable after remand. The burden of proving a fact will be upon the proponent of the fact. The standard ofproof will be a preponderance of the evidence. The trial court will enter written findings of fact concerning theclaimed deficient performance bycounsel and the claimed prejudice suffered by appellant as a result, in accordance with the order of remand.Proceedings on remand must be completedwithin 90 days of entry of the order of remand, unless the trial court findsgood cause for a delay ofreasonable length.

 

(f) Preparation and transmittal of the record. At theconclusion of all proceedings beforethe trial court, the clerk of the trial court will immediately prepare the record of the supplemental proceedingsas required by these rules. If the recordof the original proceedings before the trial court has been transmitted to the appellate court, the clerk of thetrial court will immediately transmit the record of the supplemental proceedings upon preparation of thesupplemental record. If the recordof the original proceedings before the trial court has not been transmitted to the appellate court, the clerk of thecourt will transmit the record of the supplementalproceedings upon the preparation of the entirerecord.

 

(g) Appellate court determination. Errors claimed to havebeen made during the trial court proceedingsconducted pursuant to this rule are reviewable under the same standards as the review of errors inother appeals. The findings of fact entered pursuant to this rule are reviewable under the same standards as thereview of findings of fact in otherappeals.

 

Effective December 1, 2018