Rule 23B. Motion to
remand for findings necessary to determination of ineffective assistance of
counsel claim.
(a) Grounds for motion; time. A party to an appeal in a
criminal case may move the court to remand the case to the trial court for
entry of findings of fact, necessary for the appellate court's determination of
a claim of ineffective assistance of counsel. The motion shall be available
only upon a nonspeculative allegation of facts, not
fully appearing in the record on appeal, which, if true, could support a
determination that counsel was ineffective.
The motion shall be filed prior to the filing of the
appellant's brief. Upon a showing of good cause, the court may permit a motion
to be filed after the filing of the appellant's brief. In no event shall the
court permit a motion to be filed after oral argument. Nothing in this rule
shall prohibit the court from remanding the case under this rule on its own
motion at any time if the claim has been raised and the motion would have been
available to a party.
(b) Content of motion; response; reply. The content of the
motion shall conform to the requirements of Rule 23. The motion shall include
or be accompanied by affidavits alleging facts not fully appearing in the
record on appeal that show the claimed deficient performance of the attorney.
The affidavits shall also allege facts that show the claimed prejudice suffered
by the appellant as a result of the claimed deficient performance. The motion
shall also be accompanied by a proposed order or remand that identifies the
ineffectiveness claims and specifies the factual issues relevant to each such
claim to be addressed on remand.
A response shall be filed within 20 days after the motion is
filed. The response shall include a proposed order of remand that identifies
the ineffectiveness claims and specifies the factual issues relevant to each
such claim to be addressed by the trial court in the event remand is granted,
unless the responding party accepts that proposed by the moving party. Any
reply shall be filed within 10 days after the response is served.
(c) Order of the court. If the requirements of parts (a) and
(b) of this rule have been met, the court may order that the case be
temporarily remanded to the trial court for the purpose of entry of findings of
fact relevant to a claim of ineffective assistance of counsel. The order of
remand shall identify the ineffectiveness claims and specify the factual issues
relevant to each such claim to be addressed by the trial court. The order shall
also direct the trial court to complete the proceedings on remand within 90 days
of issuance of the order of remand, absent a finding by the trial court of good
cause for a delay of reasonable length.
If it appears to the appellate court that the appellant's
attorney of record on the appeal faces a conflict of interest upon remand, the
court shall direct that counsel withdraw and that new counsel for the appellant
be appointed or retained.
(d) Effect on appeal. Oral argument and the deadlines for
briefs shall be vacated upon the filing of a motion to remand under this rule.
Other procedural steps required by these rules shall not be stayed by a motion
for remand, unless a stay is ordered by the court upon stipulation or motion of
the parties or upon the court's motion.
(e) Proceedings before the trial court. Upon remand the
trial court shall promptly conduct hearings and take evidence as necessary to
enter the findings of fact necessary to determine the claim of ineffective
assistance of counsel. Any claims of ineffectiveness not identified in the
order of remand shall not be considered by the trial court on remand, unless
the trial court determines that the interests of justice or judicial efficiency
require consideration of issues not specifically identified in the order of
remand. Evidentiary hearings shall be conducted without a jury and as soon as
practicable after remand. The burden of proving a fact shall be upon the
proponent of the fact. The standard of proof shall be a preponderance of the
evidence. The trial court shall enter written findings of fact concerning the
claimed deficient performance by counsel and the claimed prejudice suffered by
appellant as a result, in accordance with the order of remand. Proceedings on
remand shall be completed within 90 days of entry of the order of remand,
unless the trial court finds good cause for a delay of reasonable length.
(f) Preparation and transmittal of the record. At the
conclusion of all proceedings before the trial court, the clerk of the trial
court and the court reporter shall immediately prepare the record of the
supplemental proceedings as required by these rules. If the record of the
original proceedings before the trial court has been transmitted to the
appellate court, the clerk of the trial court shall immediately transmit the
record of the supplemental proceedings upon preparation of the supplemental
record. If the record of the original proceedings before the trial court has
not been transmitted to the appellate court, the clerk of the court shall
transmit the record of the supplemental proceedings upon the preparation of the
entire record.
(g) Appellate court determination. Upon receipt of the
record from the trial court, the clerk of the court shall notify the parties of
the new schedule for briefing or oral argument under these rules. Errors
claimed to have been made during the trial court proceedings conducted pursuant
to this rule are reviewable under the same standards as the review of errors in
other appeals. The findings of fact entered pursuant to this rule are
reviewable under the same standards as the review of findings of fact in other
appeals.