State v. Schoenenberger

2024 UT App 187

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JOSHUA SCOTT SCHOENENBERGER,
Appellant.

Opinion
No. 20190703-CA
Filed December 19, 2024

Second District Court, Farmington Department
The Honorable John R. Morris
No. 151701003

Scott L Wiggins, Attorney for Appellant
Sean D. Reyes and Jeffrey D. Mann,
Attorneys for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N.
MORTENSEN concurred.

LUTHY, Judge:

¶1 Joshua Scott Schoenenberger appeals his conviction of
aggravated murder. He argues that the district court erred by
ruling that his incriminating statements to police were voluntary
and therefore denying a motion to suppress those statements. He
further contends that the court plainly erred by rendering that
decision before receiving an official transcript of his interrogation.
Schoenenberger also asserts that the court applied an incorrect
legal standard to deny his motion for a new trial.

¶2 In addition to those claims of error, Schoenenberger makes
several claims of ineffective assistance by his trial counsel
(Counsel). In conjunction with some of these claims, he has filed
State v. Schoenenberger

a motion requesting a remand under rule 23B of the Utah Rules of
Appellate Procedure for entry of factual findings necessary to
establish his claims.

¶3 We see no error in the challenged actions of the district
court. We determine that Schoenenberger has not demonstrated
ineffective assistance on the relevant claims he raises in his
appellate briefing. And we conclude that he has not met his
burden under rule 23B on the ineffective assistance claims for
which he requests a remand. We therefore deny his rule 23B
motion and affirm his conviction.

BACKGROUND

¶4 During the early morning of May 9, 2015—“between 12:30
and 1:00 a.m.”—Schoenenberger and his girlfriend (Mother)
arrived at a hospital emergency room seeking care for Mother’s
two-year-old son (Child). Mother rushed in, carrying Child and
screaming that he was not breathing. Child looked “lifeless” and
“was covered in bruises.” A nurse took Child to a room, and
medical professionals began a “pediatric advanced life support”
protocol on Child, who was “unresponsive” and “cold to the
touch.” Resuscitative efforts were successful in restoring Child’s
heartbeat. Once Child was “somewhat stabilized,” it was
discovered that Child also had a swollen abdomen and a
prolapsed rectum. The doctor determined that an “exploratory
surgery would be the best course,” and one was performed. The
surgery revealed “several areas of injury,” including “a tear in the
large intestine” and “some injury to the liver.” These injuries
indicated that Child had suffered “direct blunt force trauma to his
abdomen.”

¶5 Police were called to the hospital due to suspected abuse of
Child. Three detectives arrived and spoke with Mother and
Schoenenberger. When asked about what led to Child being
rushed to the hospital, Schoenenberger explained that Child had

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been left alone in the bathtub for a short amount of time and that
Schoenenberger had returned to the bathroom to find Child
unresponsive in the bathtub. Eventually, Mother and
Schoenenberger were transported to the police station to be
“interviewed further.”

The Interrogation

¶6 At about 4:00 a.m., in an interview room at the police
station, a detective advised Schoenenberger of his rights under
Miranda v. Arizona, 384 U.S. 436 (1966). Schoenenberger indicated
that he understood those rights and then confirmed that he
wanted to talk to the police. Recordings were made of the
interviews that followed.

¶7 Schoenenberger first recounted that the prior day, the
family arrived home from a day trip to Salt Lake City at around
11:00 p.m. Schoenenberger said he took Child to the bathroom,
unsuccessfully tried to get him to “go potty,” and started a shower
for him. Schoenenberger explained that Child started “flipping
out” about taking a shower and that he therefore ran a bath for
Child instead. Then, Schoenenberger said, while Child was in the
bathtub, he left to lie down in his bedroom “for a minute.”
Schoenenberger explained that when he then “didn’t hear any
splashing,” he returned to the bathroom to find Child “face down
in the tub.” Schoenenberger said that he called for Mother, and
after trying to resuscitate Child for “about five minutes,” they
rushed Child to the hospital.

¶8 The detective then asked Schoenenberger about the
bruising on Child’s head, thigh, and stomach. Schoenenberger
explained that earlier in the week, Child had fallen and hit his
head in the shower and also on the bathroom floor, that the mark
on his thigh was “a rash from his diaper,” and that the marks on
his stomach might have been from when Mother initially
attempted chest compressions and “pumped him like three times
real hard.”

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¶9 At about 6:00 a.m., another detective joined the interview.
He informed Schoenenberger that Child had “extensive injuries
consistent with physical abuse” and that there was “also evidence
of sex abuse to [Child].” He also asserted that the information
Schoenenberger had given so far had not been “sufficient to
explain [Child’s] injuries” and that he “need[ed] help trying to
figure out what took place.” Schoenenberger responded that he
had already explained “everything that happened” and denied
having abused Child in any way. Schoenenberger also denied that
Mother abused Child in any way. And he repeated his narrative
of finding Child “face down in the bathtub” and the possible
innocent explanations for Child’s injuries. Then at around 6:30
a.m., the interview concluded, and Schoenenberger was moved to
a holding cell.

¶10 Schoenenberger was kept in a holding cell for the next
several hours, during which time he was given smoke breaks and
a meal. At around 11:00 a.m., however, Schoenenberger had an
asthma attack, for which he was treated by medical professionals,
who administered a breathing treatment. After this episode,
Schoenenberger asked to speak with the detectives.

¶11 Schoenenberger was returned to an interview room, and
the detectives engaged with him. The detectives explained that
they had “done a lot of work” since Schoenenberger’s arrival at
the jail and that the emerging information “clearly indicate[d] that
what happened to [Child] wasn’t an accident.” They stated that
they no longer thought Child had been sexually abused but that
they did believe that Schoenenberger had been physically abusing
Child. The detectives reiterated the serious nature of Child’s
injuries and that he was “close to dying,” and they pushed
Schoenenberger to explain “why [he] physically abused [Child].”
Schoenenberger forcefully continued to deny any wrongdoing.
Then at about twenty-five minutes into this interview,
Schoenenberger requested a lawyer, at which time he was
returned to a holding cell.

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¶12 Shortly after noon, Schoenenberger asked to speak with the
detectives again, and he was returned to an interview room. The
detectives came to the interview room and “went through a series
of questions to verify with . . . Schoenenberger that [they] had not
made any threats to him,” “compelled him in any way,” “made
any promises,” or “used any type of violence towards him” to
induce him to “sit back in the interview room and speak with
[them] again.” They also received an “acknowledge[ment]” from
Schoenenberger “that he realized he was waiving his prior
statement of wanting an attorney.” Schoenenberger then began to
blame Mother for Child’s injuries. He told the detectives that he
had on several occasions seen Mother hit Child “with a belt” when
“he wouldn’t go to the bathroom” and that she “smacks him
upside the head.” He then said that the prior evening, Mother was
the one alone with Child in the bathroom when Child was hurt.
Schoenenberger stated that after Child started “flipping out”
about having to take a shower, Mother came in and told
Schoenenberger she would “take care of it.” Schoenenberger said
that he then “left the room” but soon “heard thrashing around”
and that when he returned to the bathroom “to check,” he found
Mother “bawling” and Child looking “like he was dead.”
Schoenenberger then explained that he had initially told the
detectives a different story because he “didn’t want [Mother] to
get in trouble.”

¶13 The detectives explained that they were convinced Mother
was not big or strong enough to cause Child’s injuries, which
could “only be caused by significant blunt-force trauma.”
Schoenenberger continued to maintain that Mother was the
source of Child’s injuries, and the detectives continued to express
their disbelief of his new story. This interview ended at about 1:00
p.m.

¶14 At approximately 1:30 p.m., the detectives saw via the
camera in the holding cell that Schoenenberger was lying on the
floor, and they believed he might be having another medical

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State v. Schoenenberger

episode. When the detectives arrived at the cell, Schoenenberger
was sitting up. And when the detectives entered the cell, he told
them, without the detectives asking him any questions, “It was all
me. I hurt that boy. There’s nothing to talk about. I did it all.”

¶15 Schoenenberger was again returned to an interview room,
where he admitted that he hurt Child. He said that because he was
frustrated with Child for not listening to him, he “got mad at”
Child, grabbed Child around the waist, and “squoze him” for
“[m]aybe 10 seconds.” After that, Schoenenberger said, he tried to
set Child down in the bathtub, but Child was unresponsive.

¶16 The detectives challenged Schoenenberger on his story,
explaining that Mother had said she had heard repeated “skin-to-
skin contact strikes” and Child screaming when Schoenenberger
was alone with Child in the bathroom. Additionally, one of the
detectives, who had left and contacted medical professionals
caring for Child, told Schoenenberger that those professionals
had said the injury could not have happened from squeezing and
“the only way it could have happened is blunt-force trauma,”
meaning “something blunt hit [Child] hard enough to rupture his
colon.”

¶17 Schoenenberger then said that he had spanked Child a few
times while they were in the bathroom and that he had dropped
Child after squeezing him, but he otherwise continued to advance
his prior explanation of the events. The interview ended at about
2:45 p.m.

¶18 Less than an hour later, Schoenenberger again asked to talk
to the detectives, and he was returned for a final time to an
interview room. When the detectives told him that his story
“[didn’t] add up,” Schoenenberger told the detectives he had
dropped Child on the tile outside the tub and then accidentally
stepped on him “[o]n the belly.” After further pressing by the
detectives, Schoenenberger explained that he had intended to
“step on [Child] like this”—apparently softly—and “squish him,”

20190703-CA 6 2024 UT App 187
State v. Schoenenberger

but that he slipped and unintentionally “put all of [his] weight
down on [his] foot.” Shortly thereafter, at approximately 4:00
p.m., Schoenenberger said there was “nothing else to say,” and
the interview concluded.

The Charge

¶19 Two days after having been brought to the hospital, Child
died from his injuries. Thereafter, the State charged
Schoenenberger with aggravated murder.

The Motion to Suppress

¶20 Schoenenberger filed a motion to suppress, asserting that
the detectives’ questioning of him had violated his Miranda rights
and asking the district court to exclude his statements as “the
product of involuntary, coercive interrogations.” After an
evidentiary hearing and oral arguments on the matter, the court
denied the motion. Although it had not received an official
transcript of Schoenenberger’s interrogation, the court stated that
it would issue a written decision because it did have audio
recordings and a partial unofficial transcript of the interrogation,
and because it “[did] not wish to further delay the issuance of its
ruling.”

¶21 In its written ruling, the court articulated the relevant legal
standard, “consider[ed] the totality of the circumstances,” and
concluded that Schoenenberger’s statements were “knowing and
voluntary” and “not a result of improper police coercion.” The
court specifically identified the following factors as underlying its
decision: Schoenenberger had understood he had a right to
counsel and a right to remain silent, he had “a level of
sophistication with the justice system,” there was no evidence that
“any mental deficiencies or emotional instabilities” were at play,
and he was “not subjected to a prolonged interrogation that
would break down his barriers and compel him to confess when
he otherwise would not have done so.”

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State v. Schoenenberger

The Trial

¶22 The case proceeded to trial. At trial, the State presented the
testimony of the medical professionals who had treated Child and
the detectives who had interrogated Schoenenberger. It also
showed the jury portions of the video recordings of
Schoenenberger’s interview sessions at the police station.
Schoenenberger presented no witnesses in his defense.

¶23 During his closing argument, Counsel argued that
Schoenenberger’s confession had been coerced. Among other
things, he stated, “I want you to think about when someone
continues to talk to you over and over and over again how strong
you all would be under those circumstances where someone’s
made up their mind that you’ve committed a crime.” He
suggested that a person in such a situation “might say something
that puts a stop to this treatment, that puts a stop to his
interrogation.”

¶24 In his closing rebuttal argument, the prosecutor responded
to Counsel’s suggestion that Schoenenberger was coerced into
admitting that he caused injuries to Child by arguing that
Schoenenberger “is no shrinking violet,” as evidenced by the fact
that after a detective “read [Schoenenberger] his Miranda rights,”
including the right to “stop answering questions at any time,”
Schoenenberger exercised that right by “terminat[ing] one of the
interviews himself.”

¶25 The jury ultimately convicted Schoenenberger of
aggravated murder, and he was sentenced to life in prison
without parole.

The Motion for a New Trial

¶26 Schoenenberger then moved for a new trial on several
grounds, including that the district court had made its
suppression ruling prior to receiving an official transcript of the

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State v. Schoenenberger

interrogation and that in his closing rebuttal argument the
prosecutor had “made reference to [Schoenenberger’s] invocation
of his right to counsel.” The district court denied the motion. It
first noted that with his motion, Schoenenberger had “not
provide[d] any additional evidence or affidavits in support of his
claims” and that the motion was therefore “insufficient.” The
court then went on to nevertheless examine Schoenenberger’s
argument “based upon the trial record.”

¶27 As to the argument regarding a lack of an official transcript
of Schoenenberger’s interrogation, the court determined that such
a challenge was untimely, coming “almost a year and a half” after
the suppression ruling. Moreover, the court noted that even if the
challenge had been timely, it would still fail because
Schoenenberger had not identified any instances where the
evidence in the official transcript “differ[ed] from that which was
presented at the [suppression] hearing and which the court
relied on in its [suppression] ruling” or “any analysis of why the
court’s [suppression] ruling adversely affected his right to a fair
trial.”

¶28 As to the argument regarding the prosecutor’s closing
rebuttal argument, the court determined that the prosecutor’s
reference to Schoenenberger’s invocation of his Miranda rights
“was made to dispute the claim of coercion by showing
knowledge of and a willingness to invoke procedure under
Miranda.” The court therefore concluded that the prosecutor’s
statement could not “be construed as implying guilt by such
invocation” and, thus, that the prosecutor’s comment “did not
cross into unconstitutional territory.”

The Appeal and Rule 23B Motion

¶29 Following the district court’s denial of his motion for a new
trial, Schoenenberger appealed. And with his briefing on appeal,
Schoenenberger has filed a motion for a remand under rule 23B of
the Utah Rules of Appellate Procedure, asking for an opportunity

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to supplement the record with findings in support of a number of
ineffective assistance of counsel claims. We provide additional
information regarding Schoenenberger’s rule 23B motion as we
address it below.

ISSUES AND STANDARDS OF REVIEW

¶30 In his principal brief on appeal, Schoenenberger raises five
claims of error. First, Schoenenberger asserts that the district court
erred by failing to consider the totality of the circumstances when
it ruled that his confession was voluntary and denied his motion
to suppress. “In reviewing a trial court’s determination on the
voluntariness of a confession, we apply a bifurcated standard of
review.” State v. Fullerton, 2018 UT 49, ¶ 13, 428 P.3d 1052 (cleaned
up). “Under this standard, the ultimate determination of whether
a confession is voluntary is a legal question,” which “we review
. . . for correctness.” Id. (cleaned up). But “[w]e set aside factual
findings made by the district court only if they are clearly
erroneous.” Id.

¶31 Next, Schoenenberger raises two claims related to the
district court ruling on his motion to suppress before it received
an official transcript of his police interrogation. First, he
contends that the district court committed plain error by
ruling before receiving an official transcript. “The plain error
standard of review requires an appellant to show the existence of
a harmful error that should have been obvious to the district
court.” State v. Ringstad, 2018 UT App 66, ¶ 32, 424 P.3d 1052
(cleaned up), cert. denied, 425 P.3d 802 (Utah 2018). Relatedly,
Schoenenberger then contends that Counsel’s failure to object to
the court ruling on the motion to suppress before receiving an
official transcript amounted to ineffective assistance of counsel.
“When, as in this case, [a] claim of ineffective assistance of counsel
is raised for the first time on appeal, we resolve the issue as a
matter of law.” State v. Robertson, 2005 UT App 419, ¶ 5, 122 P.3d
895 (cleaned up).

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State v. Schoenenberger

¶32 Schoenenberger raises two claims related to his motion for
a new trial as well. He first challenges the district court’s denial of
the motion, arguing that the court misapplied the standard that
controls a review of a prosecutor’s reference to a defendant’s
invocation of Miranda rights. “When reviewing a trial court’s
denial of a motion for a new trial, we will not reverse absent a
clear abuse of discretion by the trial court. At the same time,
however, we review the legal standards applied by the trial court
in denying such a motion for correctness.” State v. Montoya, 2017
UT App 110, ¶ 11, 400 P.3d 1193 (cleaned up). Schoenenberger
also claims that Counsel provided ineffective assistance by
“failing to file a sufficient motion for a new trial.” As already
noted, when such a claim “is raised for the first time on appeal,
we resolve the issue as a matter of law.” Robertson, 2005 UT App
419, ¶ 5 (cleaned up).

¶33 Finally, Schoenenberger has filed a motion for a remand
under rule 23B of the Utah Rules of Appellate Procedure. A rule
23B remand is “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,”
including facts that show “the claimed deficient performance”
and “the claimed prejudice suffered by the appellant as a result of
the claimed deficient performance.” Utah R. App. P. 23B(a)–(b).

¶34 We address Schoenenberger’s briefed claims and his rule
23B motion in turn.

ANALYSIS

I. The Motion to Suppress

¶35 “The Fifth Amendment to the United States Constitution
protects individuals from being compelled to give evidence
against themselves.” State v. Rettenberger, 1999 UT 80, ¶ 11, 984
P.2d 1009 (cleaned up). And “under the Due Process Clause [of

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State v. Schoenenberger

the Fourteenth Amendment], certain interrogation techniques,
either in isolation or as applied to the unique characteristics of a
particular suspect, are so offensive to a civilized system of justice
that they must be condemned.” Id. (cleaned up). “In order to
determine whether a challenged confession [is] constitutional
under the Fifth and Fourteenth Amendments, a court must
examine the totality of circumstances to determine whether [the]
confession [was] made freely, voluntarily and without
compulsion or inducement of any sort.” Id. ¶ 14 (cleaned up). This
analysis must consider “the details of the interrogation”—for
example, “the duration of the interrogation, the persistence of the
officers, police trickery, absence of family and counsel, and threats
and promises made to the defendant by the officers”—as well as
“the characteristics of the accused”—for example, “the
defendant’s mental health, mental deficiency, emotional
instability, education, age, and familiarity with the judicial
system.” Id. ¶¶ 14–15 (cleaned up).

¶36 Schoenenberger argues that the district court erred by
denying his motion to suppress his statements to the
detectives because the court failed to consider the totality of
the circumstances when it determined that his statements
were constitutionally obtained. Specifically, Schoenenberger
asserts that the court failed to consider several factors that
weigh against a determination that he made his statements
voluntarily. We discuss each of these factors in turn and then
consider the combined impact of all the relevant factors as part of
the totality-of-the-circumstances assessment that is required in
this case.

A. False Statements by the Detectives

¶37 Schoenenberger contends that the district court gave “little
[to] no consideration . . . to the objective factor of police trickery,”
asserting that there were a “number of times that [the]
detectives made false statements to [him] in the course of the

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State v. Schoenenberger

interrogation.” Our supreme court has determined that the
mere existence of some deception on the part of police does
not rise to police coercion, stating: “We have recognized that
a defendant’s will is not overborne simply because he is led
to believe that the government’s knowledge of his guilt is
greater than it actually is.” State v. Rettenberger, 1999 UT 80, ¶ 20,
984 P.2d 1009 (cleaned up). But “in certain cases, police
misrepresentations may be sufficiently egregious to overcome a
defendant’s will so as to render a confession involuntary.” Id. The
question, then, is whether “the number and nature of the
misrepresentations” in a given case “exceeds that threshold.” Id.
Here we have no trouble deciding that any alleged
misrepresentations of the detectives either were not actually
misrepresentations or were not sufficiently egregious to have
overcome Schoenenberger’s will.

¶38 Schoenenberger first points to one detective’s assertion
during the initial interview at the police station that there was
“evidence of sex abuse to [Child].” However, this assertion was
based on the detective’s knowledge that Child had a prolapsed
rectum and on the detective’s assumption that this condition
was a result of sexual assault. Furthermore, toward the
beginning of the detective’s second interaction with
Schoenenberger—long before Schoenenberger admitted to any
responsibility for Child’s injuries—the detective told
Schoenenberger that he no longer believed that Child had been
sexually abused. Thus, we have no reason to believe that the
detective’s early assertion that there was evidence of sexual abuse
amounted to duplicity or that it ultimately had any coercive effect
on Schoenenberger.

¶39 Second, Schoenenberger points to a detective’s statement
during his interrogation that Child was “close to dying.” But
again, we have no reason to think that this was trickery on the part
of the detective because Child was in critical condition at the time

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and Child’s injuries were so extensive that he did, indeed, die just
two days later.

¶40 Third, Schoenenberger points to the detectives’ accusing
him of abusing Child and telling him, “We’ve got substantial
information that verifies you were, in fact, the one responsible for
this.” But, at that point in the investigation, the evidence did point
to Schoenenberger as the party responsible for Child’s injuries: by
Schoenenberger’s own account at that point, he was the only
person that had been left alone with Child the previous night, he
was the last person that had interacted with Child prior to his
medical emergency, and Child’s significant life-threatening
injuries were incompatible with Schoenenberger’s suggestions of
drowning or accidental harm. The detectives’ assessment that this
amounted to “substantial information” of guilt certainly does not
rise to the level of an egregious misrepresentation.

¶41 In sum, as to police trickery, Schoenenberger points to
three asserted misrepresentations by the detectives that, at most,
had only slight potential to lead Schoenenberger to believe that
the detectives’ “knowledge of his guilt [was] greater than it
actually [was],” id. (cleaned up). And the “number and nature” of
these statements does not suggest that they were “sufficiently
egregious to overcome [Schoenenberger’s] will so as to render
[his] confession involuntary.” Id.; see also id. ¶¶ 21, 23
(determining that the “[e]xtreme duplicity” used by the police
“raise[d] serious doubt about” a confession’s reliability where
“[t]he district court cataloged some 36 false statements made to
[the defendant] by the police during his interrogation” and “[t]he
overwhelming majority of these misrepresentations were not
merely ‘half-truths’ but were complete fabrications about
testimonial and physical evidence of [the defendant’s] guilt”).

B. The False-Friend Technique

¶42 Schoenenberger asserts that the detectives also “often
utilized” the false-friend technique, “indicating to [him] that they

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understood his plight” and “were acting in his best interest.” The
false-friend technique “is commonly used in police interrogations
because [resistance] to the disclosure of information is
considerably increased if something is not done to establish a
friendly and trusting attitude on the part of the subject.” State v.
Rettenberger, 1999 UT 80, ¶ 24, 984 P.2d 1009 (cleaned up). In some
circumstances, however, the technique can be coercive. Id. ¶ 26. In
fact, the technique “may be ideally suited to extract an
involuntary confession from certain types of suspects who, . . .
[due to cognitive deficits, are] overly compliant, submissive, and
anxious to receive reassurance and approval from other people.”
Id. Thus, while use of the technique is not, “standing alone,
sufficiently coercive to produce an involuntary confession,”
constitutional concerns may arise when its use is viewed “in
relation to other tactics and factors.” Id. ¶ 28.

¶43 Here, however, Schoenenberger’s false-friend technique
argument points only to the detectives’ use of the technique in
isolation, uncoupled from any other troubling tactic or factor.
Schoenenberger points to several instances where the detectives
expressed understanding, encouraged Schoenenberger to “do the
right thing,” or stated that he was not “a bad guy.” But he does
not assert that use of the false-friend technique was associated
with other tactics or factors that combined with it to indicate
potential coercion, and we see no indication that Schoenenberger
came to believe that the detectives “were not his adversaries but
were looking out for his best interests.” Id. ¶ 27. Thus, to the extent
the detectives used the false-friend technique, we remain
unconvinced that it was “sufficiently coercive to produce an
involuntary confession.” Id. ¶ 28.

C. Promises of Leniency

¶44 Schoenenberger asserts that another factor the district
court failed to consider was that “the detectives utilized implied
promises of leniency.” See generally State v. Rettenberger, 1999 UT

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80, ¶ 29, 984 P.2d 1009 (“We have recognized that an interrogation
can be impermissibly coercive because it carried a threat of greater
punishment or a promise for lesser punishment depending on
whether a defendant confessed.” (cleaned up)). But he directs us
to no such promises made by the detectives during the
interrogation. Nor have we found any in our own review of the
record. Furthermore, when Schoenenberger asked to talk to the
detectives again after he had requested an attorney, the detectives
asked him “a series of questions” to clarify that he was waiving
his prior request for an attorney and that the detectives “had not
compelled him in any way, or made any promises, or used any type
of violence towards him in order for him to sit back in the
interview room and speak with [them] again.” (Emphasis added.)
Accordingly, we determine that the voluntariness of
Schoenenberger’s confession was not impacted by any promises
of leniency from the detectives.

D. Persistent Suggestion of Facts

¶45 Schoenenberger next contends that a questionable tactic
the detectives used was to “continually suggest[] facts about
injuries that would satisfy what they believed would fit physical
evidence as they knew it.” See generally State v. Rettenberger, 1999
UT 80, ¶¶ 14, 44, 984 P.2d 1009 (stating that “under the totality of
circumstances test,” courts must consider “the persistence of the
officers,” and finding significance in the fact that “officers had
directly or indirectly given [the defendant] virtually all the facts
that he used in his confession”). As to the persistence of the
detectives, we conclude that some level of persistence on the part
of law enforcement is entirely appropriate; indeed, “we think it
eminently reasonable that police officers challenge criminal
suspects’ questionable explanations in their pursuit of the truth
and their efforts to solve crimes.” State v. Montero, 2008 UT App
285, ¶ 13, 191 P.3d 828. As to the detectives suggesting facts to
Schoenenberger in an effort to get him to admit those facts,
Schoenenberger cites no authority indicating that it was alone

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improper for the detectives to tell Schoenenberger what they
thought happened to Child or to forcefully assert that those things
must have happened. The important question is not whether the
detectives asserted or suggested a theory of what happened but,
rather, whether those assertions and suggestions combined with
other tactics and factors to ultimately overcome Schoenenberger’s
will and render his resulting confession involuntary. See
Rettenberger, 1999 UT 80, ¶¶ 40–45.

¶46 Here, the details of Schoenenberger’s confession confirm
that the detectives’ persistent assertions about what happened to
Child did not overcome Schoenenberger’s will. Schoenenberger
pushed back—on many occasions and quite forcefully—on the
detectives’ assertions. And when Schoenenberger admitted to
harming Child, he related scenarios—squeezing, dropping, and
stepping on Child—that had not been first suggested by the
detectives, who had instead repeatedly stated their belief that
Schoenenberger must have punched or beaten Child. None of this
suggests that Schoenenberger’s will was overborne by the
detectives’ forceful and persistent suggestion of facts. See State v.
Prows, 2011 UT App 9, ¶ 12, 246 P.3d 1200 (determining that the
defendant’s will was not overborne where, among other factors,
the defendant “did not agree with every assertion made by the
police officers or simply parrot back details suggested by them”
but, instead, “provided the details of his confession on his own
and disagreed with several assertions the police officers made
regarding the abuse”).

E. The Passage of Time

¶47 Schoenenberger also challenges the district court’s
determination that he was not subjected to a prolonged
interrogation. On this point, the court explained:

Although [Schoenenberger] was in custody at the
police station for over ten hours, he was only
subjected to interrogation for a few of those hours.

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State v. Schoenenberger

The first interview lasted less than two and a half
hours, which ended when [Schoenenberger]
invoked his right to counsel. Absent
[Schoenenberger’s] subsequent initiations of
interviews and interactions with the police, there is
no evidence suggesting the police would have asked
any further questions. No evidence was presented
that the police continually interrupted him while in
the holding cell, preventing him from sleeping.

The court’s summary of these events is accurate. Indeed,
apparently recognizing that the intervals of police-initiated
interrogation were not unconstitutionally long, Schoenenberger
argues that the isolation he experienced at the police station
“aggravated” his condition.

¶48 The only authority Schoenenberger cites on this point is
State v. Rettenberger, 1999 UT 80, 984 P.2d 1009, a case reiterating
the general rule that “the passage of time can, in some
circumstances, dissipate any lingering effects of police coercion,”
but determining that the passage of time between interrogation
sessions in that case was not curative of the coercion that occurred
during the defendant’s interrogation sessions. Id. ¶ 34 (cleaned
up). And Rettenberger is easily distinguishable from this case on
this point. There, the defendant’s two interviews were separated
by twenty-two hours of solitary confinement, and an expert
testified that such isolation “would have caused [the defendant]
to have increased vulnerability and anxiety, compromising his
ability to make decisions.” Id. (cleaned up). Here, on the other
hand, the time between Schoenenberger’s first interview and the
later interviews (which were each the result of Schoenenberger’s
requests to talk with the detectives) was less than five hours. And
during that time and the other time he was at the police station,
Schoenenberger was given opportunities to eat and drink, rest,
and take multiple smoking and bathroom breaks. Given these
facts, we cannot say that the district court erred in its

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determination that Schoenenberger “was not subjected to a
prolonged interrogation that would break down his barriers and
compel him to confess when he otherwise would not have done
so.”

F. Totality of the Circumstances

¶49 After a full consideration of the factors addressed above as
well as the other factors specifically elaborated on by the district
court (namely, that Schoenenberger understood his right to
counsel and understood that “he did not need to speak to the
police”; that there was no evidence that he “was experiencing
erratic emotions” around the time of his confession; that there was
no evidence that he “had any mental deficiencies or emotional
instabilities that would undermine his explicit waivers”; that he
had “a level of sophistication with the justice system”; and that he
was “not subjected to a prolonged interrogation that would break
down his barriers and compel him to confess”), we see no error in
the district court’s determination that Schoenenberger’s
confession was voluntary. The State met its burden “to
demonstrate by a preponderance of the evidence that
[Schoenenberger’s confession] was made voluntarily based upon
the totality of circumstances,” State v. Rettenberger, 1999 UT 80,
¶ 45, 984 P.2d 1009 (cleaned up), and we therefore affirm the
district court’s denial of Schoenenberger’s motion to suppress.

II. The Interrogation Transcript

A. The District Court’s Failure to Wait for an Official
Transcript

¶50 Schoenenberger asserts that the district court plainly erred
by ruling on his motion to suppress before receiving “complete
transcripts of the interrogation.” Specifically, he challenges the
court’s determination “that the audio recording of the interviews,
along with the transcripts already provided, [were] a sufficient
record upon which to rule.”

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¶51 “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. If any one of these
requirements is not met, plain error is not established.” State v.
Johnson, 2017 UT 76, ¶ 20, 416 P.3d 443 (cleaned up). “For an error
to be obvious to the trial court, the party arguing for [plain error]
must show that the law governing the error was clear or plainly
settled at the time the alleged error was made.” Id. ¶ 21 (cleaned
up).

¶52 Schoenenberger has failed to establish the existence of an
error—let alone an obvious error—by the district court when it
ruled on his motion to suppress based on the recordings of the
interrogation and a partial unofficial transcript. He simply
broadly asserts an obvious error “in light of case law from both
the United States Supreme Court and Utah concerning the
fundamental constitutional right to a fair trial and the
presumption of innocence.” Yet Schoenenberger directs us to no
case suggesting that the action of the district court in any way
infringed upon his right to a fair trial and the presumption of
innocence. Nor does he explain why the court would have been
unable to conduct the required totality of the circumstances
analysis with the information already before it—particularly the
available audio recordings of the interviews. Because of these
failings, Schoenenberger has not established plain error on the
part of the district court.

B. Counsel’s Failure to Object

¶53 Relatedly, Schoenenberger argues that Counsel was
ineffective for failing to object to the district court ruling on his
motion to suppress before receiving an official transcript of the
full interrogation. “To prevail on a claim of ineffective assistance
of counsel, a criminal defendant must show that (1) counsel’s
performance was deficient and (2) the deficient performance
prejudiced the defense. A defendant’s inability to establish either

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element defeats a claim for ineffective assistance of counsel.” State
v. Miller, 2023 UT App 85, ¶ 25, 535 P.3d 390 (cleaned up), cert.
denied, 540 P.3d 78 (Utah 2023).

¶54 Here, because Schoenenberger has not established that the
district court ruling on the motion based on recordings and an
unofficial transcript was error, he cannot establish that it was
deficient performance for Counsel not to have challenged that
action. Furthermore, it is clear from the court’s ruling that
Counsel had already “requested that the Court defer its ruling
until more complete transcripts of the police interviews
were made available” and that the court had determined that
delay was unnecessary. Thus, it would have been entirely
reasonable for Counsel to conclude, based on the court’s
articulated position on the matter, that an objection based on the
lack of an official transcript would have been futile. See State v.
Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise futile
objections does not constitute ineffective assistance of counsel.”).
For these reasons, Schoenenberger has not shown that Counsel
performed deficiently; thus, this ineffective assistance claim is
unavailing.

III. The Motion for a New Trial

A. The District Court’s Ruling

¶55 Schoenenberger argues that the district court misapplied
the proper legal standard when it considered his motion for a new
trial. Specifically, he argues that the court misapplied the standard
established by the United States Supreme Court in Doyle v. Ohio,
426 U.S. 610 (1976). But Schoenenberger is mistaken.

¶56 “In Doyle, the Court held that the use for impeachment
purposes of a defendant’s exercise of his right to silence violates
due process.” State v. Maas, 1999 UT App 325, ¶ 16, 991 P.2d 1108.
“Doyle rests on the fundamental unfairness of implicitly assuring
a suspect that his silence will not be used against him and then

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using his silence to impeach an explanation subsequently offered
at trial.” Id. ¶ 19 (cleaned up). But “a Doyle violation involves more
than simply referring to a defendant’s post-Miranda silence.” Id.
¶ 20. To violate Doyle, “[a] prosecutor must specifically inquire
about or argue using a defendant’s exercise of his rights in a
context that would impeach a defendant’s exculpatory
explanation of his conduct.” Id. Thus, “[t]he key is the framing of
a question or a prosecutor’s comment that demands an
explanation from the defendant and raises the inference that
silence equals guilt.” Id.

¶57 Schoenenberger’s motion for a new trial challenged as
inappropriate under Doyle the following statements from the
prosecutor’s closing rebuttal argument:

[Counsel] also wants you to believe that the
defendant was coerced into admitting to causing the
injuries to [Child] by coercive police tactics when he
was interviewed by detectives on May 9. I will
submit to you this defendant is no shrinking violet,
and you can see that in the interviews. Before they
started interviewing the defendant, [one of the
detectives] read the defendant his Miranda rights, in
which he told the defendant that he could stop
answering questions at any time. The defendant
knew that because he terminated one of the
interviews himself.

Schoenenberger contends that this argument was improper
because it used his invocation of his rights “for impeachment
purposes of the claim that [his] statements during the
interrogation had been coerced.” We disagree.

¶58 As the district court correctly recognized, because the
prosecutor’s reference “was made to dispute the claim of coercion
by showing knowledge of and a willingness to invoke procedure
under Miranda,” it “was not correlative with guilt or to be

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construed as implying guilt by such invocation, and therefore did
not cross into unconstitutional territory.” In other words, the
prosecutor’s statements did not “raise[] the inference that silence
equals guilt,” id.; rather, the statements asserted that
Schoenenberger’s silence equaled a knowledge of and willingness
to assert his Miranda rights. See id. ¶ 25 (“When an officer simply
testifies about the circumstances surrounding an interview, a part
of which is defendant’s silence, without using defendant’s silence
to impeach her credibility, there is no violation of the Doyle
principle.”). We therefore see no error in the district court’s
understanding or application of the governing legal standard.

B. Counsel’s Failure to File a Properly Supported Motion

¶59 Also with regard to the motion for a new trial,
Schoenenberger asserts that Counsel rendered ineffective
assistance by failing “to file a properly supported motion.” Again,
“to prevail on a claim of ineffective assistance of counsel, a
criminal defendant must show that (1) counsel’s performance was
deficient and (2) the deficient performance prejudiced the
defense. A defendant’s inability to establish either element defeats
a claim for ineffective assistance of counsel.” State v. Miller, 2023
UT App 85, ¶ 25, 535 P.3d 390 (cleaned up), cert. denied, 540 P.3d
78 (Utah 2023). And “to satisfy the prejudice prong, the defendant
must present sufficient evidence to support a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” Id. ¶ 27 (cleaned up).

¶60 We take Schoenenberger’s point that, as noted by the
district court, the motion for a new trial was “insufficient” because
it “did not provide any additional evidence or affidavits in
support of [Schoenenberger’s] claims” and did not show that
there had been “a substantial adverse effect on [Schoenenberger’s]
rights.” See generally Utah R. Crim. P. 24(b) (“The motion [for a

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State v. Schoenenberger

new trial] shall be accompanied by affidavits or evidence of the
essential facts in support of the motion.”).

¶61 But even if this amounts to deficient performance on the
part of Counsel, Schoenenberger must still show that this deficient
performance prejudiced him. That is, he must point to the
evidence and legal analysis that should have been included in the
motion and explain how inclusion of that evidence and argument
would have likely resulted in a different outcome. Yet
Schoenenberger utterly fails in this task; his argument is entirely
conclusory, asserting only that if Counsel had filed a motion that
included citation to “supporting case law or authority,” then the
court would have been able to “properly analyze the issue, which
would have resulted in a more favorable outcome for [him].” He
does not point to what that supporting authority would be. Thus,
Schoenenberger has failed to carry his burden on this claim, and
we do not consider it further.

¶62 Because Schoenenberger has not demonstrated that the
district court misapplied the appropriate legal standard when
ruling on his motion for a new trial, and because he has not
demonstrated that there is a reasonable likelihood that the court
would have ruled differently on his motion for a new trial absent
Counsel’s assertedly deficient performance, we affirm the court’s
denial of Schoenenberger’s motion for a new trial.

IV. The Rule 23B Motion

¶63 Schoenenberger has filed a motion under rule 23B of the
Utah Rules of Appellate Procedure, seeking a remand to address
a number of additional allegations of ineffective assistance of
counsel. See generally Utah R. App. P. 23B(a) (“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.”). Schoenenberger claims that Counsel was ineffective
in three ways not already addressed: (1) by not fully investigating

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State v. Schoenenberger

certain aspects of Schoenenberger’s interrogation, (2) by not
investigating the substance of a Division of Child and Family
Services (DCFS) report filed after Child arrived at the hospital,
and (3) by making an insufficient presentation of mitigating
evidence at sentencing.

¶64 A rule 23B motion “will 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.” Id. Thus, to be successful on a rule
23B motion, “a defendant must present the court with the
evidence he intends to present on remand and explain how that
evidence supports both prongs of the ineffective assistance of
counsel test.” State v. Gallegos, 2018 UT App 192, ¶ 23, 437 P.3d 388
(emphasis added) (cleaned up), aff’d, 2020 UT 19, 463 P.3d 641. “To
satisfy the deficient performance prong, the defendant must
establish that defense counsel’s actions fell below an objective
standard of reasonableness. To that end, the defendant must
overcome the strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” State
v. Miller, 2023 UT App 85, ¶ 26, 535 P.3d 390 (cleaned up), cert.
denied, 540 P.3d 78 (Utah 2023). To establish the prejudice prong
of the test, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 694 (1984).

¶65 We agree with the State that Schoenenberger has not met
his burden to proffer evidence that, if believed, could prove both
elements of any of the ineffective assistance of counsel claims
asserted in his rule 23B motion.

A. Counsel’s Alleged Failure to Fully Investigate
Schoenenberger’s Interrogation

¶66 Schoenenberger first attacks the adequacy of Counsel’s
investigation of the circumstances surrounding his interrogation,

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State v. Schoenenberger

arguing that Counsel’s assertedly deficient performance in this
regard contributed to the denial of his motion to suppress.
Schoenenberger claims that Counsel was ineffective in his
investigation related to the interrogation in four specific ways:
(1) by not investigating and retaining an expert on coercion and
false confessions, (2) by not investigating whether the police knew
of Schoenenberger’s alleged opioid use, (3) by not investigating
whether the detectives made any promises to Schoenenberger,
and (4) by not investigating conversations between
Schoenenberger and the detectives that were not transcribed. As
to each of these claims, we conclude that Counsel’s performance
was not deficient.

1. Investigation and Retention of an Expert on
Coercion and False Confessions

¶67 In support of his claim that Counsel performed deficiently
by not investigating or retaining an expert on coercion and false
confessions, Schoenenberger has submitted an affidavit from a
professor of psychology (Professor). Professor has prepared a
report in which, based on factors of social and physical isolation,
length of the interrogation, alleged drug withdrawal,
maximization techniques and themes, and minimization and
justification, he opines that Schoenenberger’s interrogation was
“psychologically coercive in the extreme.” Based on Professor’s
report, Schoenenberger contends that Counsel performed
deficiently by not investigating and retaining an expert on
coercion and false confessions.

¶68 However, Schoenenberger has proffered no affidavit
evidence—from Counsel or anyone else with knowledge—that
Counsel did not investigate or consult an expert concerning
coercion and false confessions. It is therefore possible, given what
has been presented to us, that Counsel consulted such an expert
and reasonably determined, based on what he learned, not to
present such expert evidence at trial. Thus, Schoenenberger’s

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State v. Schoenenberger

failure to produce affidavit evidence that Counsel failed to
investigate or consult an expert is fatal to Schoenenberger’s claim.
See State v. Price, 909 P.2d 256, 264 (Utah Ct. App. 1995) (“Because
[the] defendant has failed to allege that an exhaustive
investigation was not completed by his attorneys, we presume
they fulfilled that duty.”), cert. denied, 916 P.2d 909 (Utah 1996).

¶69 Moreover, even if we assume that Counsel did fail to
investigate and find an expert whose testimony would have been
consistent with Professor’s opinions, Schoenenberger still has not
demonstrated deficient performance because Professor’s opinions
are unreliable. Professor’s report states, for example, that
Schoenenberger’s interrogation (including the time that he was
alone in a cell) was “approximately 16.5 hours.” But this
erroneously overstates the total time that the court found that
Schoenenberger was in custody (a little over ten hours) as well as
the time that the court found that Schoenenberger was subjected
to active interrogation (only “a few of those hours”). It also
ignores Schoenenberger’s role in prolonging the interrogation by
repeatedly asking to speak with the detectives after they had
concluded their questioning. Reasonable counsel could have
concluded that the risks of presenting testimony from an expert
who has relied on erroneous facts outweighs the potential benefits
of presenting such testimony.

2. Investigation of the Detectives’ Knowledge of
Schoenenberger’s Alleged Opioid Use

¶70 Schoenenberger has presented an affidavit from a private
investigator (Investigator 1), who states that by reviewing reports
completed by the detectives and video recordings from inside the
jail, she has learned that the detectives knew (a) that
Schoenenberger had visible needle marks on his arm and
appeared to be fidgety and sweating while at the hospital; (b) that
Schoenenberger was “trying to get clean,” was “in a drug
treatment program” and taking suboxone, and had last used

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State v. Schoenenberger

heroin “about a week” before; and (c) that police had not found
any drugs in Schoenenberger’s home, only some new, clean
syringes. Schoenenberger has also presented an affidavit from a
licensed counselor, who states that an opioid user could
experience withdrawal “within hours of nonuse” and that
withdrawal symptoms, if severe enough, could contribute to
coercion. Based on this affidavit testimony, Schoenenberger
argues that Counsel performed deficiently by not investigating
whether the police knew of Schoenenberger’s alleged opioid use
and leveraged his alleged withdrawal to procure his
incriminating statements.

¶71 Again, however, Schoenenberger has not presented
affidavit evidence that Counsel did not investigate a possible
theory of opioid withdrawal contributing to Schoenenberger
making incriminating admissions. And again, this failure is fatal
to Schoenenberger’s claim. See State v. Price, 909 P.2d 256, 264
(Utah Ct. App. 1995), cert. denied, 916 P.2d 909 (Utah 1996).
Additionally, Schoenenberger has submitted no affidavit—from
himself or anyone else with knowledge—detailing his alleged
drug use and withdrawal. Prior drug use and sweating do not
necessarily equate to withdrawal, let alone withdrawal severe
enough to have affected the voluntariness of Schoenenberger’s
statements. For these reasons, Schoenenberger again has not met
his rule 23B burden of submitting affidavit evidence of facts that,
if true, could establish Counsel’s deficient performance.

3. Investigation of Whether the Detectives Made
Promises to Schoenenberger

¶72 Schoenenberger has presented an affidavit from a second
private investigator (Investigator 2), who recounts facts contained
in the report of the medical personnel who assisted
Schoenenberger during his asthma attack in jail. Schoenenberger
asserts that Counsel was ineffective by not investigating what
happened during that episode, claiming that if Counsel had done

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State v. Schoenenberger

so, he would have discovered that Schoenenberger “was
promised that things would be better for him if he would work
with the [detectives]” and that he “was promised his medications
if he would speak with the [detectives].” There are at least two
flaws with this argument.

¶73 First, Schoenenberger misrepresents what was said during
the medical episode. As reported by Investigator 2, during that
episode Schoenenberger told one of the medical personnel that he
needed his medications and wanted to go to the emergency room;
that person told Schoenenberger that he “didn’t think
[Schoenenberger] needed to go but if he felt that he needed to that
would be fine” and explained to Schoenenberger that “going to
the ER would lengthen and complicate the situation with the
officers,” so “if he really wasn’t having a medical issue it would
be better for him if he would just work with the officers”; and
Schoenenberger responded by “agree[ing] to speak with [the
officers] if they could get him his psychiatric medications” and
“they agreed.” Thus viewed, this episode did not contain a
promise by the detectives or anything else coercive. The first
statement was by one of the medical personnel and was merely a
suggestion that it would be better to resolve the situation with the
detectives rather than waste time at the emergency room for a
non-emergency. The second statement was by Schoenenberger,
who said that he wanted to speak further with the detectives but
wanted his medication first. And the last statement was an
indication by the detectives that they agreed to his terms. The
detectives’ acquiescence to Schoenenberger’s request for
medication—rather than withholding it—was not coercive. See
State v. Apodaca, 2019 UT 54, ¶ 46, 448 P.3d 1255 (holding that there
was no police coercion where detectives did not “deny [the
defendant] access to . . . medication”).

¶74 Second, Schoenenberger makes no effort to show that the
identified statements by medical personnel and the detectives
during and after Schoenenberger’s medical episode overcame his

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State v. Schoenenberger

will. It would be one thing if the detectives had refused to give
Schoenenberger his medication unless he confessed. But that is
not what happened. Investigator 2’s affidavit recounts that
Schoenenberger was the one who offered to speak more in
exchange for his medications and that the detectives merely
agreed to his proposal. We have been provided no authority or
analysis explaining how an officer’s acceptance of a defendant’s
gratuitous offer to speak on the condition that the defendant be
given medication constitutes the type of promise that could
overcome the defendant’s will.

¶75 For the foregoing reasons, we conclude that a competent
attorney could reasonably choose to omit from a coercion
argument the mention of an officer’s acceptance of the
defendant’s offer to speak on the condition that the defendant is
given medication.

4. Investigation of Un-transcribed Conversations of
Schoenenberger and the Detectives

¶76 In her affidavit, Investigator 1 also states that her
“investigation revealed that there are recordings that do not
appear to have been mentioned or transcribed, professionally or
by the detectives,” and that these previously un-transcribed
statements are “critical to this case.” Schoenenberger points to this
affidavit evidence to argue that Counsel’s failure to investigate
the previously un-transcribed conversations amounted to
ineffective assistance of counsel.

¶77 But again, Schoenenberger has presented no affidavit
evidence that Counsel did not review the previously un-
transcribed recordings, and because we must therefore presume
that Counsel acted reasonably and did review them, the lack of
affidavit evidence of Counsel’s alleged failure is again fatal to
Schoenenberger’s claim. See State v. Price, 909 P.2d 256, 264 (Utah
Ct. App. 1995), cert. denied, 916 P.2d 909 (Utah 1996). Moreover, a
reasonable attorney could have determined that none of the

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previously un-transcribed conversations would have been helpful
to prove that Schoenenberger’s incriminating statements were not
voluntarily made.

¶78 Investigator 1 identifies a six-word exchange between
Schoenenberger and Mother at the jail that ends with
Schoenenberger saying, “I am going . . . .” This statement is simply
too ambiguous. And, even if Investigator 1’s speculation that by
this statement Schoenenberger was telling Mother that he was
going to take responsibility for Child’s injuries is accurate,
Schoenenberger has failed to show that the exchange has any
bearing on the question of coercion. Not all confessions are
involuntary, so the mere fact that Schoenenberger may have told
Mother that he planned to confess before he actually did so says
nothing about whether Schoenenberger’s confession was coerced.

¶79 Investigator 1 next identifies a previously un-transcribed
exchange in which one of the detectives told Schoenenberger
about the charges he and Mother may face, explained that neither
dropping Child nor giving him CPR would account for Child’s
injuries, and implored Schoenenberger not to tell him what he
wanted to hear but to tell him only what actually happened, to
which Schoenenberger declared that he did not hit Child. This
exchange is similar to parts of the interview that were unofficially
transcribed prior to the court ruling on Schoenenberger’s motion
to suppress, so a competent attorney could have reasonably
decided not to highlight it in making the suppression motion.

¶80 Investigator 1 also identifies a conversation between the
detectives about how long Schoenenberger had been in custody
and how often he had changed his story. But this exchange reveals
nothing that the court did not already know when it ruled on the
voluntariness of Schoenenberger’s incriminating statements.
Accordingly, reasonable counsel could have decided not to
highlight this exchange in connection with the suppression
motion.

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State v. Schoenenberger

¶81 For the foregoing reasons, Schoenenberger has failed to
produce affidavit evidence of facts that, if proved, could
demonstrate that Counsel performed deficiently by failing to
investigate previously un-transcribed statements made at the jail
by Schoenenberger and others.

B. Counsel’s Alleged Failure to Investigate a DCFS Report

¶82 Investigator 1’s affidavit also details the contents of a DCFS
report made after Child was admitted to the hospital. In his rule
23B motion, Schoenenberger contends that this affidavit
testimony supports an ineffective assistance of counsel claim
based on Counsel’s alleged failure to investigate the DCFS report,
which, he says, “includes statements by [Mother] and family
members” that could have been used to challenge Mother’s
credibility at trial. But as with his other claims, Schoenenberger
proffers no evidence that Counsel did not review the DCFS report.
See generally State v. Price, 909 P.2d 256, 264 (Utah Ct. App. 1995),
cert. denied, 916 P.2d 909 (Utah 1996). Moreover, Schoenenberger’s
explanation of what Counsel could have done with the
information in the report is wholly undeveloped. He merely
identifies a couple of minor contradictions about issues unrelated
to Child’s injuries and asserts that this information was “critical
to challenging the credibility of [Mother].” He does not even
explain how this information would have been admissible—it
does not appear to be relevant to any issue at trial and is hearsay
upon hearsay that is not subject to any identified exception to the
rule against hearsay. Under these circumstances, a competent
attorney could have reasonably concluded that the report
provided little if any value and, therefore, reasonably decided to
focus his limited time and resources on other matters.

C. Counsel’s Alleged Failure to Present Sufficient Mitigating
Evidence at Sentencing

¶83 Schoenenberger has presented an affidavit from a long-
time mitigation investigator (Mitigation Expert), who opines that

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“the collection, preparation, and presentation of the mitigation
evidence in Mr. Schoenenberger’s case was grossly incomplete
and inadequate.” On the basis of Mitigation Expert’s affidavit,
Schoenenberger contends that Counsel provided ineffective
assistance at sentencing by (1) failing to investigate a “mental
health defense” focused on an alleged “undiagnosed mental
illness” and (2) failing to call in his behalf any witnesses at
sentencing.

1. Mental Illness Defense

¶84 Mitigation Expert’s affidavit states that Counsel retained a
mitigation investigator and gathered documents related to
mitigation and sentencing, including Schoenenberger’s school,
medical, drug treatment, and jail records. Mitigation Expert then
states that there are “numerous indications in the records
collected that Mr. Schoenenberger likely suffers from an
undocumented mental illness.” Most specifically, Mitigation
Expert notes as follows:

[L]ess than 2 months after his arrest in this case, Mr.
Schoenenberger requested mental health assistance
in the Davis County Jail. Mr. Schoenenberger
reported experiencing auditory hallucinations, that
his mind was “racing,” and he was having trouble
sleeping as a result. The jail staff prescribed Mr.
Schoenenberger an anti-psychotic medication to
treat his symptoms. Mr. Schoenenberger continued
to receive a variety of mental health medications to
treat his ongoing symptoms through his
incarceration at the Davis County Jail prior to his
sentencing in 2019.

Despite Mr. Schoenenberger self-reporting
mental health symptoms to the jail medical staff,
who confirmed that he was suffering from
significant mental health symptoms throughout the

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State v. Schoenenberger

time of his incarceration leading up to trial and
sentencing, Mr. Schoenenberger’s defense team
never requested a full psychological evaluation
prior to sentencing.

Based on the foregoing, Schoenenberger contends that Counsel
rendered ineffective assistance by failing “to properly investigate
and develop . . . mental health evidence for presentation at . . .
sentencing.”

¶85 However, despite presenting evidence of the foregoing
facts (of which Counsel was also presumably aware since, as
Mitigation Expert explains, Counsel provided the documents
upon which Mitigation Expert relies to assert these facts),
Schoenenberger has proffered no evidence that Counsel did not
investigate a potential mental illness defense for presentation at
sentencing. We must therefore presume that Counsel conducted
such an investigation, that his investigation was reasonable, and
that his decision not to present a mental health defense at
sentencing was reasonable as well. See State v. State v. Price, 909
P.2d 256, 264 (Utah Ct. App. 1995) (“Because [the] defendant has
failed to allege that an exhaustive investigation was not
completed by his attorneys, we presume they fulfilled that
duty.”), cert. denied, 916 P.2d 909 (Utah 1996). On the record before
us, it is possible that Counsel performed a reasonable
investigation of a mental health defense and reasonably
determined that presenting such a defense would make
Schoenenberger look worse.

¶86 In this regard, it is also noteworthy that Schoenenberger
has proffered no evidence that he was willing to cooperate with
Counsel in pursuing a mental health defense. Schoenenberger
refused to cooperate with Adult Probation and Parole as it
prepared its presentence investigation report, instead simply
maintaining his innocence. If he similarly refused to cooperate
with Counsel in obtaining a mental health evaluation or other

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State v. Schoenenberger

efforts to develop or present a mental illness defense, it is difficult
on this record to see how Counsel’s performance in this area could
be deemed deficient. See generally Strickland v. Washington, 466
U.S. 668, 691 (1984) (“The reasonableness of counsel’s actions may
be determined or substantially influenced by the defendant’s own
statements or actions.”).

¶87 Because we have been provided with no evidence that
Counsel did not explore the possibility of a mental illness defense
at sentencing, no evidence that Schoenenberger was unable to
cooperate with Counsel in preparing such a defense, and no
evidence that Schoenenberger was willing to cooperate with
Counsel in preparing such a defense, we conclude that
Schoenenberger has failed to proffer facts that, if true, could prove
the deficient performance prong of this claim of ineffective
assistance of counsel.

2. Mitigation Witnesses

¶88 Finally, Mitigation Expert states in his affidavit that he
“telephonically interviewed 4 potential mitigation witnesses . . .
that were significant people in [Schoenenberger’s] life, including
his mother, former stepfather, maternal aunt, and lifelong friend.”
And he avers that Counsel did not interview these four potential
mitigation witnesses. 1 Yet Mitigation Expert does not say what

1. Mitigation Expert actually states that the mitigation
investigator “did not interview any potential mitigation
witnesses, . . . despite the mitigation investigator indicating in
billing documents that at least one or more of the witnesses had
been interviewed.” (Emphasis added.) Mitigation Expert
provides no foundation for how he would know that the
mitigation investigator did not interview any potential mitigation
witnesses, especially where the mitigation investigator’s own
billing records show that he did interview some potential
(continued…)

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State v. Schoenenberger

any of these four witnesses would have testified to if they had
been called to testify at sentencing. Mitigation Expert does state
that Schoenenberger’s “parents were 17 years old at the time of
his birth,” that his “early life was very unstable,” and that as a
child he “suffered from a continual cycle of abuse and
abandonment” from many of the men in his life, including
physical abuse, and that he suffered from emotional abuse and
neglect by his mother as well. But Mitigation Expert does not
indicate whether he learned this information from the four
potential mitigation witnesses or from Schoenenberger’s school,
medical, and drug treatment records. Without a proffer of what
the four potential mitigation witnesses would have testified to
had they been called, Schoenenberger is unable to demonstrate a
reasonable likelihood of a different sentence if these potential
witnesses had testified. See State v. Curtis, 2013 UT App 287, ¶ 54,
317 P.3d 968 (“Proof of prejudice must be a demonstrable reality,
not mere speculation . . . .” (cleaned up)). In fact, Schoenenberger
makes no attempt in his rule 23B motion to demonstrate prejudice
resulting from Counsel’s failure to call mitigation witnesses at
sentencing. Thus, he has not met his burden with regard to the
second prong of this ineffective assistance claim.

¶89 In sum, as to each of the ineffective assistance of counsel
claims for which Schoenenberger seeks a remand under rule 23B,
we conclude that he has failed to proffer facts that, if true, could
establish both elements of the particular claim. We therefore deny
Schoenenberger’s motion.

mitigation witnesses. However, for purposes of our analysis, we
nevertheless credit Mitigation Expert’s statement that the
mitigation investigator did not interview the four potential
witnesses Mitigation Expert interviewed because Mitigation
Expert would presumably testify that he learned that fact from
those four potential witnesses themselves.

20190703-CA 36 2024 UT App 187
State v. Schoenenberger

CONCLUSION

¶90 The district court did not err in its determination that
Schoenenberger’s confession was voluntary. Schoenenberger has
not shown plain error in the court’s issuance of its decision on his
motion to suppress prior to the filing of an official transcript of the
interrogation. The court did not misapply the legal standard when
ruling on Schoenenberger’s motion for a new trial. Each of
Schoenenberger’s briefed claims of ineffective assistance of
counsel fail, and he has not met his burden under rule 23B of the
Utah Rules of Appellate Procedure to merit a remand to develop
the factual record in support of additional claims of ineffective
assistance of counsel. Therefore, we deny Schoenenberger’s
motion for a remand under rule 23B and affirm his conviction.

20190703-CA 37 2024 UT App 187