Rule 23B. Motion toremand for findings necessary to determination of ineffective assistance ofcounsel claim.
(a) Grounds for motion; time. A party to an appeal in acriminal case may move the court to remand the case to the trial court forentry of findings of fact, necessary for the appellate court's determination ofa claim of ineffective assistance of counsel. The motion shall be availableonly upon a nonspeculative allegation of facts, notfully appearing in the record on appeal, which, if true, could support adetermination that counsel was ineffective.
The motion shall be filed prior to the filing of theappellant's brief. Upon a showing of good cause, the court may permit a motionto be filed after the filing of the appellant's brief. In no event shall thecourt permit a motion to be filed after oral argument. Nothing in this ruleshall prohibit the court from remanding the case under this rule on its ownmotion at any time if the claim has been raised and the motion would have beenavailable to a party.
(b) Content of motion; response; reply. The content of themotion shall conform to the requirements of Rule 23. The motion shall includeor be accompanied by affidavits alleging facts not fully appearing in therecord on appeal that show the claimed deficient performance of the attorney.The affidavits shall also allege facts that show the claimed prejudice sufferedby the appellant as a result of the claimed deficient performance. The motionshall also be accompanied by a proposed order or remand that identifies theineffectiveness claims and specifies the factual issues relevant to each suchclaim to be addressed on remand.
A response shall be filed within 20 days after the motion isfiled. The response shall include a proposed order of remand that identifiesthe ineffectiveness claims and specifies the factual issues relevant to eachsuch 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. Anyreply 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 betemporarily remanded to the trial court for the purpose of entry of findings offact relevant to a claim of ineffective assistance of counsel. The order ofremand shall identify the ineffectiveness claims and specify the factual issuesrelevant to each such claim to be addressed by the trial court. The order shallalso direct the trial court to complete the proceedings on remand within 90 daysof issuance of the order of remand, absent a finding by the trial court of goodcause for a delay of reasonable length.
If it appears to the appellate court that the appellant'sattorney of record on the appeal faces a conflict of interest upon remand, thecourt shall direct that counsel withdraw and that new counsel for the appellantbe appointed or retained.
(d) Effect on appeal. Oral argument and the deadlines forbriefs 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 motionfor remand, unless a stay is ordered by the court upon stipulation or motion ofthe parties or upon the court's motion.
(e) Proceedings before the trial court. Upon remand thetrial court shall promptly conduct hearings and take evidence as necessary toenter the findings of fact necessary to determine the claim of ineffectiveassistance of counsel. Any claims of ineffectiveness not identified in theorder of remand shall not be considered by the trial court on remand, unlessthe trial court determines that the interests of justice or judicial efficiencyrequire consideration of issues not specifically identified in the order ofremand. Evidentiary hearings shall be conducted without a jury and as soon aspracticable after remand. The burden of proving a fact shall be upon theproponent of the fact. The standard of proof shall be a preponderance of theevidence. The trial court shall enter written findings of fact concerning theclaimed deficient performance by counsel and the claimed prejudice suffered byappellant as a result, in accordance with the order of remand. Proceedings onremand 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 theconclusion of all proceedings before the trial court, the clerk of the trialcourt and the court reporter shall immediately prepare the record of thesupplemental proceedings as required by these rules. If the record of theoriginal proceedings before the trial court has been transmitted to theappellate court, the clerk of the trial court shall immediately transmit therecord of the supplemental proceedings upon preparation of the supplementalrecord. If the record of the original proceedings before the trial court hasnot been transmitted to the appellate court, the clerk of the court shalltransmit the record of the supplemental proceedings upon the preparation of theentire record.
(g) Appellate court determination. Upon receipt of therecord from the trial court, the clerk of the court shall notify the parties ofthe new schedule for briefing or oral argument under these rules. Errorsclaimed to have been made during the trial court proceedings conducted pursuantto this rule are reviewable under the same standards as the review of errors inother appeals. The findings of fact entered pursuant to this rule arereviewable under the same standards as the review of findings of fact in otherappeals.