Cedar City v. Braget

2025 UT App 39

THE UTAH COURT OF APPEALS

CEDAR CITY,
Appellee,
v.
ASHLEY BRAGET,
Appellant.

Opinion
No. 20230535-CA
Filed March 13, 2025

Fifth District Court, Cedar City Department
The Honorable Matthew L. Bell
No. 221500535

Lyla Mahmoud, Debra M. Nelson, Benjamin Miller,
and Wendy M. Brown, Attorneys for Appellant
Randall K. McUne, Attorney for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and AMY J. OLIVER
concurred.

LUTHY, Judge:

¶1 Cedar City (the City) charged Ashley Braget with two
misdemeanors—assault and contributing to the delinquency of a
minor. The day before her scheduled bench trial, Braget requested
that the trial be held via video conference rather than in person.
On the day of trial, Braget connected to the video conference with
only an audio connection. The judge, the attorneys, and the City’s
two witnesses all appeared at the trial in person. The trial
proceeded with Braget and her sole witness participating by
audio only. At the conclusion of the trial, the court found Braget
guilty on both counts.
Cedar City v. Braget

¶2 Braget appeals, asserting that her constitutional rights to be
“present by video” at trial and to confront the witnesses against
her via video were violated. Because these claims are
unpreserved, she brings them under the plain error and
ineffective assistance of counsel exceptions to the preservation
requirement. She also asserts that her trial counsel was ineffective
for allowing the defense’s sole witness to testify without video.
Finally, Braget has filed a motion under rule 23B of the Utah Rules
of Appellate Procedure, asking for a remand to supplement the
record in support of additional claims of ineffective assistance.
Braget’s claims are unavailing, and she has failed to meet her
burden under rule 23B. We therefore deny her rule 23B motion
and affirm her convictions.

BACKGROUND

The Charges, Arraignment, and Pretrial Hearings

¶3 In April 2021, the City filed charges against Braget in justice
court for two Class B misdemeanors stemming from an assault by
Braget and her teenage son (Son) against Braget’s husband, Son’s
father (Husband). The matter was set for an arraignment via video
conference. On the appointed day, Braget failed to appear, and the
court issued a warrant for her arrest. Later that day, Braget filed a
request to recall the warrant, and her arraignment was
rescheduled, again to be held by video conference. On the
indicated later date, Braget again failed to appear, and the court
again issued a warrant for her arrest. Braget was subsequently
arrested, and her arraignment was held by video conference while
she was in custody. Braget entered pleas of not guilty and was
appointed a public defender (Counsel) and released from
custody. The court set the matter for a pretrial conference—to be
held in person.

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Cedar City v. Braget

¶4 The day before the pretrial conference, Braget called the
court and said that “she didn’t think that she could make it to
[c]ourt.” Later that day, Counsel asked that the hearing be held by
video conference, and the court acceded to this request. The case
was then transferred to the district court and proceeded to trial. 1
At a scheduling conference for which Braget was not present,
Counsel requested a bench trial, and the district court scheduled
the matter for a half-day bench trial. The trial was later continued
based on a stipulated motion filed by Counsel; it was rescheduled
for January 12, 2023. The day before the rescheduled trial, Counsel
filed a stipulated motion to convert the in-person trial “to a virtual
[video conference] trial.” Although no reason for the request was
provided in the motion, Braget states in her primary brief on
appeal that the reason for the request was that she did not live in
Utah at the time. The court agreed to hold the trial by video
conference and to allow Braget to appear virtually.

The Trial

¶5 At the appointed time, Braget connected to the trial by
phone with no video connection. The court, the attorneys,
Husband, and a law enforcement officer witness (Officer)
appeared in the courtroom. The court asked Counsel whether the
defense was “prepared to go forward.” Counsel indicated that she
was communicating with Braget by text, and Counsel audibly
informed Braget through the video conference that “the judge
[was] wanting to know . . . if [Braget] intend[ed] to go forward”
with trial that day. Braget replied with a response characterized
in the official transcript as “inaudible,” and the court took a recess

1. “If a justice court has jurisdiction over a criminal action
involving a domestic violence offense and the criminal action is
set for trial, the prosecuting attorney or the defendant may file a
notice of transfer in the justice court to transfer the criminal action
from the justice court to the district court.” Utah Code § 78A-7-
106(7)(a).

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Cedar City v. Braget

“to let [Counsel] communicate with [Braget] with some privacy.”
After the recess, Counsel informed the court, “[W]e’re still
planning on going forward.”

¶6 The City’s first witness was Husband. He testified that one
day in March 2021, Braget drove Son to a garage “located in back
of [Husband’s] shop” where Husband worked. Huband
recounted that Braget and Son came into the garage together and
were “very angry.” He said that Son “started being loud with
words” and that when Husband told Son “not to fight,” Son began
punching him. Husband testified that when Son punched him,
Husband “went down because [he] wasn’t fighting back” and that
after falling to the ground, he could “feel[] that they were kicking”
him. Husband stated that he then heard Son tell Braget, “[D]on’t
touch [Husband.] . . . [I] will take care of it.” The prosecutor then
showed Husband his witness statement from the day of the
incident, wherein he had written that Braget had kicked him twice
in the head, and Husband agreed that his witness statement was
accurate.

¶7 On cross-examination, Husband testified that while he was
on the ground and after Braget had “jumped in,” he heard a friend
of his (Eyewitness), who was present at the time, say, “Don’t do
it. Leave him alone.” Husband recounted that he then felt “more
legs kicking” him. Husband then confirmed that this was when
he heard Son tell Braget, “Leave him alone” and “I’ll take care of
him.” Husband stated that he was “face down on the ground” at
the time.

¶8 The prosecutor then called Officer, who testified to what
he saw when he arrived on the scene after the assault. After
Officer’s testimony, the City rested. Although the prosecutor had
subpoenaed Eyewitness to testify, Eyewitness had not appeared.

¶9 The defense then put on its case. Counsel called Son, who
was then age sixteen. Like Braget, Son was attending the trial

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Cedar City v. Braget

virtually with only an audio connection. The court asked Son, “Do
you have—can you activate a camera there? Are you calling from
a smart phone?” Son initially replied, “Yes, I can,” but he then
said, “It does not let me. Sorry.” The court responded, “We’ll . . .
deal with it under the circumstances.” Son then proceeded to
testify without video.

¶10 Son testified that Husband had called him and that the two
of them had “started to argue,” so Son “decided to skate[board]
down there to go and argue with him in person.” Son explained
that Braget was driving to see Husband at the same time and that
when she saw Son skateboarding to Husband’s garage, she picked
him up and drove him the remainder of the way. Son testified that
Braget was still in the car when he entered the garage.

¶11 Son explained that he began arguing with Husband in the
garage and that the argument “turn[ed] physical” when he
“headbutt[ed] [Husband] or something.” Son testified that at that
point, Husband “threw [Son] around,” they “scuffled on the
floor,” and then Son “got up and left.” Son stated that Braget did
not “get[] involved at all” and “never once touched” Husband.
When asked, “So does that mean she did not kick him either?”
Son responded, “No, nobody got kicked. Nobody got—no adults
touched each other. . . . [T]hey never hit each other and nobody
should ever be in trouble because of it. It was only me and
[Husband] arguing and fighting the entire time.”

¶12 On cross-examination, Son volunteered that Eyewitness
was also present during the incident, after which Son said,

[Eyewitness] lied about [Braget] touching
[Husband]. She didn’t once touch him. She might
have pulled me off of him, you know, because we
were scuffling, and she told me to “Stop, stop. No,
let’s go. Get out of here. Go.” And I was like, “Okay.
I’m done. I’m sorry.”

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Cedar City v. Braget

¶13 After Son’s testimony, the court asked Counsel whether
she intended to call any additional witnesses. Counsel responded
by asking Braget if she was “still on.” Braget spoke up and asked,
“Can you hear me?” Counsel said, “Yeah, I can hear you, but I . . .
would recommend resting and not having you testify.” Braget
then asked for “[o]ne second” because there was “a lot of air
force” where she was and she needed to “hide from that.” Shortly
thereafter, Braget asked, “Hello? Can you hear me better now?”
Counsel responded in the affirmative, and the court took a recess
to allow Counsel and Braget to speak privately about whether to
have Braget testify. After the recess, Counsel reported that Braget
would not be testifying and asked the court to mute Braget.
Counsel then briefly re-called Son to answer some clarifying
questions and then rested.

¶14 Following closing arguments, the court found Braget
guilty on both counts, explaining that it found Husband’s account
of Braget participating in the assault to be credible. Braget now
appeals.

ISSUES AND STANDARDS OF REVIEW

¶15 On appeal, Braget asserts two claims of plain error. She
contends that the district court plainly erred by violating her right
to be present at trial when it “made no inquiry into the
voluntariness of her video absence” from the virtual trial. She also
claims that the district court plainly erred by “fail[ing] to receive
an explicit waiver” of her confrontation rights before “it allowed
the prosecution’s witnesses to testify.” Because claims of plain
error involve no lower court ruling, we decide them in the first
instance as a matter of law. See State v. Corry, 2024 UT App 142,
¶ 17, 558 P.3d 128.

¶16 Next, Braget asserts three ineffective assistance of counsel
claims. Two of these claims correspond with her claims of plain

20230535-CA 6 2025 UT App 39
Cedar City v. Braget

error. Specifically, she contends that Counsel provided ineffective
assistance by not objecting when the court proceeded with trial in
Braget’s “video absence” and when the court “allowed the
witnesses to testify when [Braget] and the witnesses could not see
each other.” Braget also claims that Counsel was “ineffective in
allowing [Son] to testify virtually without video.” “When a claim
of ineffective assistance of counsel is raised for the first time on
appeal, there is no lower court ruling to review and we must
decide whether the defendant was deprived of the effective
assistance of counsel as a matter of law.” State v. Elkface, 2023 UT
App 24, ¶ 7, 527 P.3d 820 (cleaned up), cert. denied, 534 P.3d 752
(Utah 2023).

¶17 In addition to her immediate claims on appeal, Braget has
filed a motion under rule 23B of the Utah Rules of Appellate
Procedure, asking that we remand this case for supplementation
of the record in support of additional ineffective assistance claims.
“A remand under rule 23B will only be granted 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.” State v. Lee, 2014 UT App 4, ¶ 5, 318
P.3d 1164 (cleaned up).

ANALYSIS

I. Plain Error

¶18 Braget raises two claims of plain error, specifically, that the
district court plainly erred by (1) failing “to discuss with [Braget]
on the record whether she was knowingly waiving her right to be
present” and (2) failing “to receive an explicit waiver of [Braget’s]
right to confrontation.” “To demonstrate plain error, a defendant
must establish that (i) an error exists; (ii) the error should have
been obvious to the trial court; and (iii) the error is harmful, i.e.,
absent the error, there is a reasonable likelihood of a more

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Cedar City v. Braget

favorable outcome for the appellant.” State v. Dean, 2004 UT 63,
¶ 15, 95 P.3d 276 (cleaned up). Braget’s plain error claims fail
because, at a minimum, the claimed errors would not have been
obvious to the district court.

¶19 “The Due Process Clause [of the Fourteenth Amendment
together with] the Confrontation Clause of the Sixth Amendment,
as applied to the States via the Fourteenth Amendment, both
guarantee to a criminal defendant . . . the right to be present at all
stages of the trial where his [or her] absence might frustrate the
fairness of the proceedings.” Tennessee v. Lane, 541 U.S. 509, 523
(2004) (cleaned up). The Confrontation Clause also “guarantees
the defendant a face-to-face meeting with witnesses appearing
before the trier of fact.” Maryland v. Craig, 497 U.S. 836, 844 (1990)
(cleaned up).

¶20 Braget does not dispute that she knowingly and
voluntarily waived her right to be physically present at the trial
and her right to confront the witnesses in person when she asked
to appear virtually at trial. She asserts, however, that she
nevertheless retained a right to a visual connection to the trial and
a right to confront the witnesses through that video connection.
For purposes of our analysis, we assume that Braget retained such
rights. But those rights were also subject to waiver. See United
States v. Mezzanatto, 513 U.S. 196, 201 (1995) (“A criminal
defendant may knowingly and voluntarily waive many of the
most fundamental protections afforded by the Constitution.”);
Peretz v. United States, 501 U.S. 923, 936 (1991) (“The most basic
rights of criminal defendants are . . . subject to waiver.”). And it
would not have been obvious to the district court that Braget had
not waived those rights.

¶21 After learning that Braget lacked a video connection to the
trial, the court asked Counsel whether the defense was “prepared
to go forward.” Then, before receiving an answer, it took a recess
to allow Counsel and Braget to “communicate with . . . some

20230535-CA 8 2025 UT App 39
Cedar City v. Braget

privacy” about that question. After the recess, Counsel informed
the court, “[W]e’re still planning on going forward,” apparently
waiving on Braget’s behalf the right to a video connection and the
right to personally confront the witnesses through that video
connection.

¶22 Braget contends, however, that Counsel’s representation
that Braget wished to proceed with trial was insufficient to
establish Braget’s knowing and intentional waiver of her
presumed rights to be visually present and to personally confront
the witnesses via video. Braget asserts that these presumed rights
could not be knowingly and voluntarily waived unless the court
“discuss[ed] with [Braget individually and] on the record whether
she was knowingly waiving” them. But Utah law on this point is
far from settled in Braget’s favor.

¶23 Our opinion in State v. Robertson, 2018 UT App 91, 427 P.3d
361, is instructive in this regard. In Robertson, the defendant’s
attorney informed the district court that the defense intended to
conduct jury selection in chambers without the defendant present.
Id. ¶ 31. Defense counsel said that he and the defendant had
“discussed that, and the reasons for that, and . . . that [the
defendant was] in agreement with that procedure.” Id. (cleaned
up). The court informed the defendant that he had “the right to be
present at all critical stages” of the proceeding and that “jury
selection is one of those critical stages.” Id. (cleaned up). It then
asked the defendant if he was waiving his “right to be present
during jury selection.” Id. (cleaned up). The defendant confirmed
that he was. Id. “Later, in the middle of the voir dire process,” the
court learned that the defendant had expressed a desire to “go
back to the jail” instead of waiting at the courthouse. Id. ¶ 32
(cleaned up). The court brought the defendant into the courtroom,
explained that it was aware of his request, and confirmed with the
defendant that he wanted to go back to the jail, after which the
defendant was taken to the jail. Id.

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Cedar City v. Braget

¶24 “Despite [the court’s] two separate attempts to expressly
confirm that [the defendant] truly wished to waive his right to be
present at voir dire,” id. ¶ 33, the defendant argued on appeal that
the district court had committed plain error by conducting voir
dire without him there, see id. ¶¶ 18, 33. We observed that in
making this argument, the defendant was “encourag[ing] us to
treat waiver of the right to be present at voir dire no differently
than waiver of the right to counsel,” id. ¶ 34, which can generally
be elicited only “after penetrating questioning” that makes a
defendant “aware of the dangers and disadvantages of self-
representation,” State v. Frampton, 737 P.2d 183, 187 (Utah 1987)
(cleaned up); see also id. at 187 n.12 (endorsing a specific sixteen-
question colloquy for use in eliciting a waiver of the right to
counsel). We then characterized the defendant’s argument as
“essentially [a contention] that waiver of any constitutional right
attached to criminal trials requires a detailed colloquy to ensure
that the defendant fully under[stands] the nature of his [or her]
right and the dangers associated with the wavier.” Robertson, 2018
UT App 91, ¶ 35 (cleaned up).

¶25 After so characterizing the defendant’s argument, we
observed that there are “constitutional rights that we regularly
allow criminal defendants to waive without such a searching
inquiry.” Id. Specifically, we noted that “we do not require such a
colloquy when a criminal defendant waives his [or her] right to
testify.” Id. (citing State v. Brooks, 833 P.2d 362, 365 (Utah Ct. App.
1992) (“We hold that the trial court bears no affirmative duty sua
sponte to engage in an on-the-record colloquy with [a] defendant
at the time of trial to ensure a valid waiver of the right to
testify.”)). We also observed that “no detailed discussion is
typically held on the record when a defendant waives his [or her]
rights under the Confrontation Clause.” Id. (citing State v. King,
2010 UT App 396, ¶ 51 n.13, 248 P.3d 984 (“[A] defendant may
waive his [or her] constitutional right of confrontation by electing
to forgo cross-examination of a witness.”)). Then we noted that

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Cedar City v. Braget

the defendant had “direct[ed] us to no Utah case law—and [that]
we [were aware of] none—that explains whether waiver of the
constitutional right to be present at voir dire is more akin to
waiver of the right to testify or confront witnesses or, as [the
defendant] would have [had] us conclude, waiver of the right to
counsel.” Id. “Given the dearth of relevant authority,” we
concluded, “it would not have been obvious to the trial court that
anything more was required of it.” Id.

¶26 Braget is in the same boat as the Robertson defendant. She
too essentially contends that waiver of any constitutional right
attached to a criminal trial requires a detailed colloquy to ensure
that the defendant fully understands the nature of the right and
the dangers associated with the waiver. Yet she too has directed
us to no Utah case law—and we have found none—that holds that
waiver of the presumed right to a visual connection to a virtual
trial is more akin to waiver of the right to counsel than waiver of
the right to testify. And Robertson itself suggests that “no detailed
discussion . . . on the record” is needed to establish a waiver of
Confrontation Clause rights. See id.

¶27 We acknowledge that the trial court in Robertson initially
engaged in a more in-depth colloquy with the defendant there
regarding the right he was waiving than the district court did with
Braget here. But we have identified no case law stating that more
was required of the district court than to receive from Counsel—
following an opportunity to consult privately with Braget—an
affirmation that Braget wished to proceed with trial despite her
lack of a video connection. Given the absence of controlling case
law mandating the kind of searching colloquy that Braget asserts
was required, “we cannot agree that the trial court committed any
error, let alone an obvious one.” Id.; see also State v. Roman, 2015
UT App 183, ¶ 9, 356 P.3d 185 (“To establish that [an] error should
have been obvious to the trial court, the appellant must show that
the law governing the error was clear at the time the alleged error
was made.” (cleaned up)).

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Cedar City v. Braget

¶28 In support of a contrary conclusion, Braget points to an
Administrative Order for Court Operations During Pandemic
dated December 31, 2020 (the Pandemic Order). 2 The Pandemic
Order was promulgated by the Utah Supreme Court and Utah
Judicial Council during the COVID-19 pandemic and modified
the Utah Rules of Criminal Procedure by, among other things,
adding the following provision to rule 17(a):

In all cases tried to the bench, a defendant may
waive the right to appear in person at trial and
consent to appear through video conferencing if the
defendant has an effective opportunity to
participate, which includes the ability to view trial
participants and to meaningfully interact with counsel of
record in real time. “Trial participants” is defined to
include the judge and testifying witnesses. The
defendant’s waiver and consent must be on the record and
the court must make findings that the waiver and consent
are voluntary.

(Emphasis added.) The Pandemic Order was “terminated” by the
Utah Supreme Court and Utah Judicial Council on August 26,
2022, by an Administrative Order Terminating COVID-19-
Related Orders, which repealed “[a]ll previously imposed
COVID-19-related . . . rule modifications.” 3

2. See Administrative Order for Court Operations During
Pandemic, Utah Supreme Court and Utah Judicial Council (Dec.
31, 2020), https://www.utcourts.gov/en/about/administration/
alerts/covid.html [https://perma.cc/RR4S-H9FR].

3. See Administrative Order Terminating COVID-19-Related
Orders, Utah Supreme Court and Utah Judicial Council (Aug. 26,
2022), https://www.utcourts.gov/en/about/administration/alerts.ht
ml [https://perma.cc/9ZCM-EBML].

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Cedar City v. Braget

¶29 Braget acknowledges that the Pandemic Order “was not in
effect at the time of [her] trial.” But she argues that because the
Pandemic Order was “in effect for nearly two years,” “it should
have been obvious to the trial court that [Braget’s] presence by
phone without video at the very least required additional
inquiry.” By so arguing, Braget essentially suggests that it should
have been obvious to the district court that the Pandemic Order
articulated constitutional requirements for establishing a
defendant’s waiver of a visual connection to a virtual bench trial.
We disagree. By its terms, the Pandemic Order did not purport to
be a pronouncement of constitutionally mandated standards in
ordinary circumstances. Rather, it was promulgated on an
“expedited basis” during a “declared . . . state of emergency” in
order “[t]o bring uniformity to the operation of the courts.” Its
termination without supreme court comment regarding any
constitutional necessity to continue following its various
provisions renders it at best persuasive authority, not settled law,
on the constitutional issue here.

¶30 Braget also points to State v. Gunter, 2013 UT App 140, 304
P.3d 866, to support her argument that a more fulsome colloquy
between her and the district court was required to show her
waiver of the presumed rights to a video connection and to
confront the witnesses via that connection. In Gunter, the
defendant “did not appear for trial,” and the trial court concluded
that the defendant “had voluntarily absented himself,” even
though defense counsel had not “informed the trial court whether
he knew where [the defendant] was” or “otherwise addressed
[the defendant’s] absence on the record.” Id. ¶ 8 (cleaned up). On
appeal, we explained that “absent any direct evidence explaining
[a] defendant’s whereabouts, [a] trial court [should] ordinarily
postpone the proceedings to permit both the prosecution and
defense counsel to seek additional information.” Id. ¶ 25 (cleaned
up). We then said that “where there is no explanation for the
defendant’s absence, resolving the question of [whether the

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Cedar City v. Braget

defendant’s absence is voluntary] requires some form of inquiry
by the trial court.” Id. (cleaned up). We then held that the trial
court “erred by failing to make an adequate inquiry into whether
[the defendant] was voluntarily absent before proceeding with
trial in absentia.” Id. ¶ 26.

¶31 Braget’s reliance on Gunter is misplaced. Unlike Gunter,
this is not a case where the defendant was wholly absent from trial
and the district court found a waiver of the right to be present
without any inquiry or evidence regarding the defendant’s
whereabouts. Braget actually appeared at trial—albeit by audio
only—and the court did not proceed until Braget and Counsel had
conferred and affirmed to the court that Braget wished to proceed.
Gunter does not provide a basis for requiring anything more.

¶32 For the foregoing reasons, Braget’s plain error claims fail.

II. Ineffective Assistance of Counsel

¶33 Braget also asserts that she received ineffective assistance
of counsel (1) when Counsel “allowed her trial to go forward
while she was present by voice only without video,” (2) when
Counsel “failed to object while the prosecution’s witnesses
testified in violation of [Braget’s] confrontation rights,” and
(3) when Counsel “allowed [Son] to testify remotely without
video.” These claims are closely related, and we address them
together.

¶34 To establish ineffective assistance of counsel, a defendant
must show (1) “that counsel’s performance was deficient” and
(2) “that the deficient performance prejudiced the defense” by
“depriv[ing] the defendant of a fair trial.” Strickland v. Washington,
466 U.S. 668, 687 (1984). “Because failure to establish either prong
of the test is fatal to an ineffective assistance of counsel claim, we
are free to address [a defendant’s] claim under either prong.”
Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182.

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¶35 To demonstrate deficient performance, the defendant
“must convince us that, despite the fact that counsel is
strongly presumed to have rendered adequate assistance,
counsel’s acts or omissions nevertheless fell outside the wide
range of professionally competent assistance.” State v. Lopez-
Gonzalez, 2020 UT App 15, ¶ 19, 459 P.3d 1049 (cleaned up). The
defendant must therefore “show that his [or her] counsel’s
performance fell below an objective standard of reasonableness.”
Id. (cleaned up). And when assessing objective reasonability, we
“reconstruct the circumstances of counsel’s challenged conduct”
and “evaluate the conduct from counsel’s perspective at the
time.” State v. Carter, 2023 UT 18, ¶ 45, 535 P.3d 819 (cleaned up).
To satisfy the prejudice prong of an ineffective assistance claim,
“[t]he burden is on the defendant to demonstrate a reasonable
probability that the outcome of his or her case would have been
different absent counsel’s error.” State v. Scott, 2020 UT 13, ¶ 43,
462 P.3d 350.

¶36 Additionally, under both prongs of an ineffective
assistance claim, “[a]n absence of evidence matters.” State v.
Rivera, 2022 UT App 44, ¶ 43, 509 P.3d 257. “On deficient
performance, it should go without saying that the absence of
evidence cannot overcome the strong presumption that counsel’s
conduct fell within the wide range of reasonable professional
assistance.” Id. (cleaned up). “So too with prejudice. Speculation
is not a substitute for proof of prejudice, and proof of prejudice
may not be based purely upon a speculative matter.” Id. (cleaned
up). In short, “proof of ineffective assistance of counsel cannot be
a speculative matter but must be a demonstrable reality.” Id.
(cleaned up).

A. Assistance with Video and Advice to Son

¶37 Braget argues specifically that Counsel should have
“assisted her with the video function” on her phone, “informed
[Son] before trial that he needed to appear by video,” and

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Cedar City v. Braget

“insisted that [Son] have time to access a device that would allow
him to testify by video” when he called in by phone. But the
record does not demonstrate that the problem with the video
function of Braget’s phone could have been corrected with
Counsel’s assistance, that Counsel did not instruct Son to appear
by video, or that Son could have accessed a video-capable device
during the span of a reasonable delay. Because ineffective
assistance must be a demonstrable reality, these gaps in the record
render Braget’s arguments in this regard unavailing.

B. Request for a Continuance

¶38 We are also not convinced that—as Braget further insists—
Counsel was required to request a continuance of the trial.
Eyewitness was present during the assault. He had
apparently reported that Braget “touch[ed]” Husband during the
incident, and he had been subpoenaed to testify. But he did not
appear at trial. Counsel could have reasonably concluded that
proceeding in the absence of the sole witness who was willing and
able to corroborate Husband’s account would be more helpful to
Braget’s defense than insisting on a continuance that might allow
Braget and Son to appear in person or via video at a rescheduled
trial.

¶39 The reasonableness of Counsel’s course in this regard is
enhanced by the fact that over the course of six scheduled
appearances prior to trial, Braget had failed three times to appear
at all; her single in-person appearance had occurred only after a
warrant for her arrest had been executed; she had requested and
been given one continuance already; and when she appeared for
her virtual trial with only an audio connection, she did so
sufficiently close to “a lot of air force” to make it difficult for her
to hear and to be heard. Given that history, Counsel could have
reasonably questioned whether Braget would appear at all or
with an appropriate video connection even if another continuance
was granted.

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Cedar City v. Braget

C. Request for an Additional Inquiry

¶40 Finally, Braget argues that Counsel should have at least
“request[ed] that the trial court make an inquiry into the
voluntariness of [Braget’s] presence without video.” But there is
no indication in the record that if the court had conducted a more
fulsome colloquy into the voluntariness of Braget’s presence
without video, Braget would have requested a continuance so that
she could later appear in person or via video. Thus, whether any
prejudice resulted from Counsel’s asserted deficient performance
in this regard is a purely speculative matter, and Braget’s
argument is, again, unavailing. 4

¶41 For the foregoing reasons, Braget’s ineffective assistance of
counsel claims also fail.

III. Rule 23B Motion

¶42 Finally, Braget moves under rule 23B of the Utah Rules of
Appellate Procedure for a remand to supplement the record with
evidence in support of additional claims of ineffective assistance.
We conclude, however, that she has failed to meet her burden
under rule 23B.

4. Braget argues that Counsel’s performance was deficient for the
additional reason that Counsel never “inform[ed] [Braget] that
she had the right to appear by video” and “never informed
[Braget] of [her confrontation] rights.” But the current record
contains no information about the conversations between Braget
and Counsel. Thus, arguments based on what Counsel did or did
not say to Braget are speculative and unavailing on the record
before us. Braget’s rule 23B motion, however, includes allegations
regarding such conversations, and we take up Braget’s arguments
based on those conversations in section III.

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Cedar City v. Braget

¶43 The purpose of a rule 23B motion “is to develop new
evidence in the record, without which a defendant cannot bring
his [or her] ineffective assistance of counsel claim on appeal.” State
v. Griffin, 2015 UT 18, ¶ 18, 441 P.3d 1166. To obtain a remand
under this rule, “a defendant must present the court with the
evidence he [or she] intends to present on remand and explain
how that evidence supports both prongs of the ineffective
assistance of counsel test.” State v. Suhail, 2023 UT App 15, ¶ 126,
525 P.3d 550 (cleaned up), cert. denied, 531 P.3d 730 (Utah 2023).
“If the motion cannot meet the test for ineffective assistance of
counsel, then there is no reason to remand the case.” State v.
Samples, 2022 UT App 125, ¶ 57, 521 P.3d 526 (cleaned up), cert.
denied, 525 P.3d 1279 (Utah 2023).

¶44 In her rule 23B motion, Braget seeks to supplement the
record in support of a claim that Counsel provided ineffective
assistance by failing “to advise [Braget] of the rights implicated
by calling into her virtual trial without video” and by failing “to
discuss with [Braget] the ways to protect these rights during
trial.” 5 In support of this claim, Braget provides her own
declaration, in which she states, in relevant part, as follows:

• “I spoke privately with [Counsel], . . . who told me we had
to go forward with the trial that morning and could not
delay. She told me that participating in the trial by phone

5. Braget’s motion also seeks to supplement the record in support
of a claim that Counsel rendered ineffective assistance by failing
“to ensure [Braget] was able to attend the trial by two-way video.”
But the allegations in the motion do nothing to demonstrate that
Counsel could have ensured Braget’s attendance via video
without requesting a continuance. Thus, under the same analysis
articulated above, see supra ¶¶ 38‒41, Braget has failed to meet her
rule 23B burden on that claim.

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Cedar City v. Braget

without video was my only option. She did not advise me
to participate in the trial by video instead of by phone.”

• “In this private conversation, [Counsel] also did not advise
me of any of my constitutional rights that might be affected
by attending the [virtual] trial without video.”

• “Throughout my trial, I had difficulty hearing the
individuals speaking and had difficulty following along
with the trial process.”

• “I had difficulty communicating with [Counsel]. When I
had a question, I did not feel I could easily have private
communication with [Counsel].”

¶45 Braget also provides an affidavit from her appellate
counsel that recounts what she learned when she contacted
Counsel and asked for “more [information] about why [Braget]
was present by phone without video for her [virtual] trial”:

• “[Counsel] responded that [Braget] told her she did not
have the funds to travel to Utah for her trial, and that
having [Braget] appear by [video conference] was the
solution.”

• “[Counsel] told me that because [the district court that
heard Braget’s case] allow[s] parties to participate in
hearings by phone or by computer, she did not tell [Braget]
to use a device with video capability to attend her [virtual]
trial.”

¶46 Even if we assume that Braget has alleged sufficient facts
to support a determination that Counsel performed deficiently by
not informing her of the purported “rights implicated by calling
into her virtual trial without video” and not discussing with her
“the ways to protect [those purported] rights during trial,” Braget
has not alleged sufficient facts to demonstrate that she was

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Cedar City v. Braget

prejudiced by the deficient performance. Specifically, even
though Braget provides evidence that Counsel did not advise her
to connect to the trial by video, Braget does not allege that if she
had been so advised she could and would have connected with
video on the day of trial. Therefore, the notion that she was
prejudiced by Counsel’s alleged failure is speculative.

¶47 Similarly, although Braget declares that Counsel did not
“advise [her] of any of her constitutional rights that might be
affected by attending the [virtual] trial without video” and,
instead, told her that participating without video was her “only
option,” Braget does not allege that if Counsel had advised her of
those rights and told her she could seek a continuance, she would
have actually sought a continuance. Thus, again, any prejudice
from the alleged failures remains speculative.

¶48 Likewise, Braget declares that she “had difficulty hearing”
the trial, “difficulty following along with the trial process,” and
“difficulty communicating with [Counsel]” and that she “did not
feel [she] could easily have private communication with
[Counsel].” But having now had an opportunity to review the trial
transcript and to consult with Counsel about what transpired
during trial,6 Braget does not explain what she missed that made
a difference, what questions she would have asked, what input
she would have given, or how the trial would have otherwise
unfolded differently if she had been able to hear, follow along,
and communicate with Counsel more fully. Hence, any resulting
prejudice is again speculative.

¶49 Because “proof of prejudice [due to a defense attorney’s
deficient performance] must be a demonstrable reality, not mere

6. We infer from Counsel’s continued representation of Braget
through sentencing and Counsel’s willingness to speak with
Braget’s appellate counsel that Braget has had an opportunity to
consult with Counsel regarding what transpired during trial.

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Cedar City v. Braget

speculation,” State v. Curtis, 2013 UT App 287, ¶ 54, 317 P.3d 968
(cleaned up), Braget has failed to meet her burden to merit a
remand under rule 23B.

CONCLUSION

¶50 Braget has not shown that the district court’s alleged errors
should have been obvious to the district court, and her plain error
claims therefore fail. As to each of her claims of ineffective
assistance of counsel, Braget has failed to demonstrate either
Counsel’s deficient performance or prejudice resulting from the
asserted deficient performance; thus, Braget’s ineffective
assistance of counsel claims fail. Finally, under the facts alleged in
Braget’s rule 23B motion, Braget would not be able to establish the
prejudice prong of the ineffective assistance claim for which she
seeks a remand; hence, she has not met her rule 23B burden.
Accordingly, we deny Braget’s rule 23B motion and affirm her
convictions.

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