State of Utah v. Lee

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State v. Lee. Filed October 21, 1999 IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Alfred T. Lee,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990286-CA

F I L E D
October 21, 1999
1999 UT App 307
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Second District, Ogden Department
The Honorable Pamela G. Heffernan

Attorneys:
Maurice Richards, Ogden, for Appellant
Jan Graham and Scott Keith Wilson, Salt Lake City, for Appellee

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Before Judges Greenwood, Davis, and Jackson.

PER CURIAM:

Appellant Alfred T. Lee appeals his conviction of retail theft, a third degree felony. The sole claim on appeal is that trial counsel was ineffective by failing to call an alibi witness to testify.

An ineffectiveness of counsel claim can be raised for the first time on appeal only in limited circumstances. "Those circumstances exist when there is new counsel on appeal and there is an adequate trial record." State v. Johnson, 823 P.2d 484, 487 (Utah Ct. App. 1991). Although Lee has new counsel on appeal, "[t]he trial court record contains none of the facts necessary to establish whether counsel's alleged omissions constitute ineffective assistance of counsel." State v. Vessey, 967 P.2d 960, 964-65 (Utah Ct. App. 1998). Specifically, there is no record to establish that Lee informed his trial counsel of the potential alibi witness and no information in the trial court record about the identity or probable testimony of that potential witness. Thus, the ineffectiveness claim is wholly unsupported in the record.(1)

Because the record is inadequate to allow review of the ineffectiveness claim raised for the first time on appeal, we affirm the judgment.
 
 
 

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Pamela T. Greenwood,
Associate Presiding Judge
 
 
 

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James Z. Davis, Judge
 
 
 

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Norman H. Jackson, Judge

1. Lee did not request a remand under Utah R. App. P. 23B for the purpose of entering findings of fact relevant to a claim of ineffectiveness of counsel. Although the rule allows this court to order a remand sua sponte, our discretion is limited to those circumstances where the motion would have been available to a party. See Utah R. App. P. 23B(a). Lee has not made a sufficient allegation of nonspeculative facts that would support a determination that counsel was ineffective. Because the motion would not be available to Lee, we decline to order a remand.