State v. Weber

2026 UT App 152
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
JAMES A RLAN WEBER ,
Appellant.
Opinion
No. 20241246-CA
Filed October 8, 2026
Eighth District Court, Vernal Department
The Honorable Clark A. McClellan
No. 231800661
Emily Adams and Jessica Hyde Holzer,
Attorneys for Appellant
Derek E. Brown and Lindsey L. Wheeler,
Attorneys for Appellee
JUDGE R YAN M. HARRIS authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and
DAVID N. M ORTENSEN concurred.
HARRIS, Judge:
¶1 	James Arlan Weber pled guilty to one count of aggravated
child abuse, a second-degree felony, and one count of child abuse,
a class A misdemeanor, and the district court later sentenced him
to prison. Weber now appeals his sentence, asserting that his
attorneys rendered ineffective assistance in various respects. In
addition, Weber asks us to remand this case to the district court,
pursuant to rule 23B of the Utah Rules of Appellate Procedure, for
further proceedings that would allow him to supplement the
record to support additional claims of ineffective assistance,
including certain claims related to his underlying plea. For the
reasons discussed herein, we deny Weber’s rule 23B motion and

State v. Weber
20241246-CA 	2 	2026 UT App 152
affirm his sentence, but we remand the case to the district court
for the limited purpose of correcting the presentence investigation
report’s (PSI) incorrect labeling of his misdemeanor charge.
BACKGROUND1
The Abuse
¶2 	Matthew2 lived with his biological mother (Mother) until
he was three years old, at which time he was adopted by Weber,
who may be Matthew’s biological father. For the next six years,
Matthew lived with Weber, Weber’s wife (Stepmother), and
Stepmother’s four children, all of whom are older than Matthew.
¶3 	A few days before Matthew’s ninth birthday, he ran away
from home, and a concerned citizen found him. Matthew told the
citizen that “he ran away from home because he was bad,” and
the citizen took Matthew to the police station, where Matthew
told officers that he had “left home because his parents were
mean, tied him up, and hit him with things.” He also stated that
“his parents did not feed him.” When asked about “a large bruise
on his cheek,” Matthew claimed his stepbrother had caused it.
¶4 	Later, a police officer (Officer) went to Matthew’s home to
investigate. Officer met Weber there and asked him why Matthew
“was so small for his age,” and Weber said he didn’t know
because he had adopted Matthew when he was three and that
1. Weber entered into a plea agreement with the State, so there
was no trial. Accordingly, “the facts recited here come from the
charging document, the plea agreement form, the plea hearing,
the [PSI], and the sentencing hearing.” State v. Rynhart, 2025 UT
App 148, n.1, 585 P.3d 57, cert. denied, 585 P.3d 48 (Utah 2026).
2. We use pseudonyms for the child in question as well as for his
stepsiblings.

State v. Weber
20241246-CA 	3 	2026 UT App 152
Matthew had “always been small.” Weber also confirmed that the
bruise on Matthew’s cheek “was from 	[Matthew] wrestling
around” with his stepbrother. Officer then returned Matthew to
the home and released him to Weber and Stepmother’s care, and
he notified the Utah Division of Child and Family Services (DCFS)
of the incident.
¶5 	A few days later, a detective (Detective) arranged for
Matthew to be interviewed at the Children’s Justice Center (CJC).
When 	Matthew 	arrived, 	Detective 	noted 	that 	Matthew
“appear[ed] to be very small and emaciated.” Detective could
“see all of [Matthew’s] ribs and vertebrae,” and he observed that
Matthew’s “knee bones [were] much larger than his calves and
thighs” and that his “hands and wrists [were] very small.”
Matthew told Detective that he had “marks on his wrist” from a
“rope” that he had often been tied up with, and Detective
“observed a small, mostly healed scab on [Matthew’s] right
wrist.” Detective concluded, “based on [Matthew’s] physical
condition,” that Matthew had been “bound for long periods of
time” and that “nutrition [had been] withheld.”
¶6 	During the interview, Detective asked Matthew “why he
was there,” and Matthew suggested that it was “because he had
tried to kill [Stepmother].” Matthew explained that, some three
years earlier, when he was six, he had “held a knife over
[Stepmother’s] head” and “she [had] woke up to find him like
that,” and that he had “not talked to anyone about it.” Detective
redirected Matthew to the day he ran away, and Matthew stated
that while his family members “were all asleep,” he had gotten
“into the peanut butter, pizza, tater tots, and chicken nuggets, and
left.” Matthew explained that “he felt bad about getting food
because it made [Stepmother’s] blood pressure go up” and made
“the rest of them go hungry.” He also stated that “he would get
tied up to stop him from getting into all the food and for his own
safety” and that the last time he had been “tied up” was two days
ago, on his ninth birthday.

State v. Weber
20241246-CA 	4 	2026 UT App 152
¶7 	While Matthew was being interviewed, another officer
went to the home and met with Matthew’s family. There, Weber
and Stepmother explained that Matthew had been “in their home
for the past five and a half years” and that, at first, everything had
been “fine,” other than Matthew’s “small stature and the fact that
he eats everything.” But they claimed that Matthew had recently
become “defiant,” and they reported several instances of bad
behavior from Matthew, including Stepmother “waking up to
[Matthew] holding a knife over her head,” Matthew “putting a
cord around [his stepbrother’s] neck,” and Matthew putting
cleaning solution in the family’s coffee maker. Stepmother also
explained that Matthew would “get up in the middle of the night
and eat all the leftovers, or drink a bottle of ranch [dressing], or
eat a jar of mayonnaise.” And Weber stated that this required the
family to “sleep in shifts to prevent [Matthew] from getting into
the kitchen.” They told the officer that their home had cameras
and “some of these incidents could be viewed on the cameras.”
Stepmother denied that Matthew had “ever [been] tied up or tied
to the bed,” but Weber “admitted he ha[d] tied [Matthew’s] hands
up twice, for his own protection, for about 20 minutes each time.”
¶8 	During this family interview, Matthew’s fifteen-year-old
stepbrother (Ben) stated that when Matthew had been tied up, it
was “usually because he [wouldn’t] sleep or because he [had
gone] into the kitchen [to eat] food.” Officer asked “what it looks
like when [Matthew] is tied up,” and Weber interjected by asking,
“[U]sually, it’s just his hands, right?,” to which Ben replied,
“Yeah, it’s usually just his hands, and he is not tied to the bed.”
Ben added that “the rope[] is normally over [Matthew’s] sleeves
so it won’t leave a mark.” Ben then retrieved the rope that had
been used to tie Matthew up, and he gave it to the officer.
¶9 	After these interviews, DCFS removed all of the minor
children from Weber and Stepmother’s care and transported
Matthew to the hospital. DCFS took the two of the children—Ben
and his thirteen-year-old brother (Brooks)—to the CJC. At the
hospital, Matthew weighed thirty-seven pounds, and medical

State v. Weber
20241246-CA 	5 	2026 UT App 152
personnel 	conducted 	an 	assessment 	of 	Matthew. 	After
participating in that assessment, a doctor observed as follows:
I 	suspect 	that 	[Matthew] 	has 	also 	suffered
prolonged 	psychological/emotional 	abuse
alongside his nutritional neglect, contributing to
psychosocial dwarfism. With current information,
the totality of injuries and findings identified in
[Matthew] 	cannot 	plausibly 	be 	explained 	by
accidental 	injury, 	preexisting 	medical 	illness,
reasonable discipline, or benign events. Therefore,
these injuries should be considered consistent with
inflicted trauma (e.g., child abuse) and nutritional
neglect. [Matthew] is at significant risk of further
harm if returned to the hands of the caregiver who
inflicted these injuries without interventions.
Over the two and a half weeks following his removal from
Weber’s home, Matthew “gained 6 pounds,” “[h]is ribs and
vertebrae [became] no longer visible, and he appeared much
healthier.”
¶10 	At the CJC, Ben and Brooks were interviewed. Ben was
“asked where the idea to tie [Matthew] up came from,” and he
said, “[Weber] came home and [Matthew] was standing in the
corner for punishment . . . [and] he was banging his head on the
wall,” so “[Weber] suggested they tie him up for about three
hours so he could calm down.” Ben stated that “at most” Matthew
had been tied up “for four or five hours,” and that when Weber
and Stepmother “realized he had been tied up that long, they were
like, ‘oh crap’” and they went and untied him. Ben also stated that
Weber and Stepmother “made sure it was not longer than 24
hours and that it didn’t affect his muscles or give him rashes.”
¶11 	Ben also told the interviewer that “[Matthew] would say
things for the shock of it,” like “talking about being homosexual
because he thought it would shock everyone.” Ben admitted to

State v. Weber
20241246-CA 	6 	2026 UT App 152
tying Matthew “up by his feet,” even though “Weber told him he
wasn’t supposed to do that.” Ben said he “was sick of [Matthew]
getting into things in the kitchen and that’s why he tied his feet.”
¶12 	Officers also interviewed Stepmother’s twenty-year-old
daughter (Cara), who stated that Weber and Stepmother had used
“food [as] a punishment” for Matthew. She said, “It would be
taken away from him and he would not be allowed to eat,
sometimes two to three days out of the week.” She stated that she
thought Matthew “was in trouble so much for taking food that he
just didn’t ask for any.” And regarding Weber and Stepmother’s
overall treatment of Matthew, Cara said that it was “as if they
were babysitting him and not like he was part of the family.”3
The Charges and Plea Deal
¶13 	A few days after the children were removed from Weber
and Stepmother’s care, Weber was arrested and charged with four
second-degree-felony 	counts 	of 	aggravated 	child 	abuse.4
Eventually, Weber entered into a plea agreement with the State,
in which he agreed to plead no contest to (a) one count of
aggravated child abuse, a second-degree felony, in violation of
Utah Code section 76-5-109.2, for “caus[ing] serious physical
injury to a nine-year-old child by withholding food and starving
him to the point that he required hospitalization,” and (b) one
count of non-aggravated child abuse, a class A misdemeanor, in
3. Around this time, Stepmother and Stepmother’s other adult
daughter (Chelsey) were also interviewed by law enforcement,
but the contents of their interviews were not included in the
record, so we address the relevant contents of those interviews
more fully below, in connection with our discussion about
Weber’s rule 23B motion.
4. Stepmother was also arrested and charged, but her charges
were dealt with in a separate case not at issue here. We include
information about her case only where it is relevant to this appeal.

State v. Weber
20241246-CA 	7 	2026 UT App 152
violation of Utah Code section 76-5-109, for “physically [tying] up
a nine-year-old with a rope on at least two different occasions.”
The State agreed to dismiss the other two charged counts.
¶14 	At the plea hearing, the court reiterated the terms of the
plea agreement, stating, “So it looks like, to me, that you are
admitting to . . . aggravated child abuse, intentional or knowing,
as a second-degree felony. And child abuse intentionally or
knowingly, as a [c]lass A? Is that what you understand . . . you’re
doing?” Weber responded in the affirmative. The court explained
that the elements of the two charges were “essentially the same”
and that it’s “the severity of the charge, or the potential penalty
that’s 	different.” 	When 	the 	court 	asked 	Weber 	whether 	he
understood, Weber again responded affirmatively. The court also
addressed Weber’s attorney (Counsel), asking, “[D]o you believe
that [Weber] understands the rights that he’s waiving?” Counsel
responded by saying, “[W]e’ve talked a bunch over the past few
weeks. And then we talked yesterday and went over it . . . . [T]hen
he went over the paperwork on his own and let us know that he
understood it. And so I do believe he understands it.”
¶15 	After 	the 	court 	recited 	the 	facts 	giving 	rise 	to 	the
allegations—most of which are recited above—Counsel stated
that Weber was “not contesting that food was withheld, or that
[Matthew] was tied up on a couple of occasions,” but that Weber
“did just want to make one supplement to add to the facts in that
[Matthew] was 37 pounds, but later on, he was also found to have
a medical condition that may have contributed to his weight loss,
too.” The court accepted the additional fact, and it later ordered
Adult Probation and Parole (AP&P) to prepare a PSI in advance
of the sentencing hearing.
The PSI
¶16 	AP&P prepared a PSI, and on the first page it listed the
offenses as “aggravated child abuse . . . second-degree felony”
and “aggravated child abuse . . . class A misdemeanor.” (Emphasis

State v. Weber
20241246-CA 	8 	2026 UT App 152
added.) The PSI also included a factual summary of the events
leading up to Weber’s arrest. And as relevant here, the PSI further
stated that “[e]lectronics were taken as evidence and reviewed”
and that “[s]everal messages between [Weber] and [Stepmother]
were located,” including messages where Weber referred to
Matthew as a “little fucker” and stated that he was “going to get
rid of [Matthew] as soon as [he got] home.” AP&P recommended
that Weber receive the statutory prison sentence, despite the fact
that 	the 	sentencing 	guideline 	matrix 	indicated 	that 	the
recommended sentence should be jail as a condition of probation.
In the PSI, AP&P offered its view that a deviation from the matrix
recommendation 	was 	justified 	because 	the 	crimes 	were
particularly egregious, Weber had a significant criminal history,
and 	Weber 	had 	taken 	“no 	accountability 	for 	the 	injuries
[Matthew] sustained.”
The Sentencing Hearing
¶17 	On the day of the sentencing hearing, Counsel was out of
town, so the attorney who had been representing Stepmother
(Sentencing Counsel) stepped in to represent Weber. This was
convenient because Stepmother’s sentencing hearing had been
scheduled for the same date and time and had been completed
just prior to the beginning of Weber’s. The court began Weber’s
hearing by clarifying that Weber had pled guilty to “[t]wo counts,
aggravated child abuse, second-degree felony, and [c]lass A
misdemeanor” 	and 	by 	asking 	Sentencing 	Counsel, 	“Is 	that
correct?” Sentencing Counsel answered in the affirmative. The
court then asked what Sentencing Counsel thought the court
should do, and Sentencing Counsel responded by apparently
referencing Stepmother’s sentencing hearing, which had just
concluded, stating, “Your Honor, you’ve heard the majority of it,
and I’m not going to repeat too much. I would like to make a
couple 	of 	distinctions 	here.” 	Sentencing 	Counsel 	then
acknowledged that Weber did have something of a criminal
history, but he pointed out that those crimes were “over 10 years
old.” He also noted that Weber had made “a full relinquishment

State v. Weber
20241246-CA 	9 	2026 UT App 152
of [his] parental rights” and there was therefore “no chance that
he [would] be seeing” Matthew again, and he argued that this
action showed that Weber “knew things were serious and [that]
he took them seriously.” For its part, the State asked the court to
follow the PSI’s recommendation and sentence Weber to prison,
arguing specifically “that a prison sentence be imposed.”
¶18 	After considering these arguments, the court stated that it
was “going to follow the recommendation of the State . . . and
sentence [Weber] to one to 15 years in the Utah State Prison.” It
explained its reasoning as follows:
This is the kind of case that speaks out. And part of
my role, I feel, at times, is to make sure the public
understands the importance of caring for children
and set a standard in the community. And I think I
would be remiss if I didn’t recognize that the
community here would expect me to do this in a
case like this where . . . such egregious torture was
inflicted on a child.
And the court told Weber that he had caused “pain and suffering
that was unnecessary and just cannot be allowed to happen.”
ISSUES AND STANDARDS OF REVIEW
¶19 	Weber now appeals his sentence, arguing that Counsel and
Sentencing 	Counsel 	rendered 	constitutionally 	ineffective
assistance in various respects. In addition, Weber has filed a
motion, pursuant to rule 23B of the Utah Rules of Appellate
Procedure, asking us to remand the case to the district court for
further proceedings to allow him to supplement the record in
support of additional ineffective assistance claims, some of which
go not just to his sentence but also to the entry of his plea. “A claim
of ineffective assistance of counsel raised for the first time on
appeal presents a question of law, which we consider de novo.”

State v. Weber
20241246-CA 	10 	2026 UT App 152
State v. King, 2018 UT App 190, ¶ 11, 437 P.3d 425 (cleaned up).
And 	“a 	remand 	under 	rule 	23B 	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.” State v. Tuinman, 2023 UT App 83,
¶ 53, 535 P.3d 362 (cleaned up).
ANALYSIS
¶20 	To succeed on an ineffective assistance claim, Weber must
make a two-part showing: (1) that counsel’s performance was
deficient and (2) that this deficient performance “prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984);
accord State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350. Failure to prove
either component is fatal to the claim; “[u]nless a defendant
makes both showings, it cannot be said that the conviction . . .
resulted from a breakdown in the adversary process that renders
the result unreliable.” Strickland, 466 U.S. at 687. Thus, “if either is
lacking, the claim fails and this court need not address the other.”
State v. Kufrin, 2024 UT App 86, ¶ 55, 551 P.3d 416 (cleaned up).
¶21 	The first part of the test requires Weber to show that his
attorneys’ performance “fell below an objective standard of
reasonableness.” Scott, 2020 UT 13, ¶ 31 (cleaned up). When
determining 	reasonableness, 	courts 	often 	look 	to 	whether
counsel’s actions were motivated by trial strategy. See id. ¶ 35
(“[T]he performance inquiry will often include an analysis of
whether there could have been a sound strategic reason for
counsel’s actions.”). And while “the ultimate question is not
whether there was a possible strategic reason for counsel’s
conduct, 	but 	instead 	whether 	that 	conduct 	was 	objectively
reasonable,” see id., “[i]f it appears counsel’s actions could have
been intended to further a reasonable strategy, a defendant has
necessarily failed to show unreasonable performance,” State v.
Ray, 2020 UT 12, ¶ 34, 469 P.3d 871.

State v. Weber
20241246-CA 	11 	2026 UT App 152
¶22 	If deficient performance is established, Weber must next
show that he was prejudiced by that performance. To establish
prejudice, he “must show that there is 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.” Strickland, 466 U.S. at 694. A defendant trying to show
that there is a “reasonable probability of a different outcome”
faces “a relatively high hurdle to overcome.” State v. Garcia, 2017
UT 53, ¶ 44, 424 P.3d 171.
¶23 	In this case, Weber alleges—or attempts to allege—that his
attorneys rendered ineffective assistance in the following four
respects: 	(1) 	when 	neither 	Counsel 	nor 	Sentencing 	Counsel
objected to the PSI’s incorrect labeling of his misdemeanor charge
as “aggravated”; (2) when Sentencing Counsel didn’t argue more
specifically for probation at the sentencing hearing; (3) when
Counsel didn’t discuss certain trial strategy items with him prior
to him entering his guilty plea; and (4) when neither Counsel nor
Sentencing 	Counsel 	sought 	to 	correct 	certain 	information
contained in the PSI that Weber claims “painted an incomplete
picture of Matthew’s complications.” Weber acknowledges that
the record does not support his third or fourth ineffective
assistance claims, so he has filed a motion, pursuant to rule 23B of
the Utah Rules of Appellate Procedure, asking us to remand this
case to the district court for additional factfinding. We address
each of Weber’s arguments, in turn.
I. Mislabeling of the Misdemeanor Charge
¶24 	Weber first argues that his attorneys rendered ineffective
assistance by not objecting to the PSI’s incorrect labeling of his
misdemeanor charge. Specifically, he argues that “an ‘aggravated’
label” makes a crime look worse than it was and that this labeling

State v. Weber
20241246-CA 	12 	2026 UT App 152
matters 	for 	things 	like 	future 	parole 	hearings.5 	The 	State
disagrees, arguing that Weber’s attorneys could have had a
strategic reason not to object to a “one-word typographical error”
and that, in any event, Weber was not prejudiced. We find merit
in Weber’s argument.
¶25 	Weber pled guilty to one count of aggravated child abuse,
a second-degree felony, and one count of non-aggravated child
abuse, a class A misdemeanor. The PSI, however, listed the
offenses as “aggravated child abuse,” a “second-degree felony,”
and 	“aggravated 	child 	abuse,” 	a 	“class 	A 	misdemeanor.”
(Emphasis added.)
¶26 	Attorneys have a duty to ensure that the terms of any plea
agreement are accurately described in the PSI. See Am. Bar. Ass’n,
Criminal Justice Standards for the Defense Function, Standard 4-6.3(a)
(4th ed. 2017), https://www.americanbar.org/groups/criminal_jus
tice/resources/standards/defense-function/ [https://perma.cc/KM
6K-2MZV] (“Defense counsel should ensure that any written
disposition agreement accurately and completely reflects the
precise terms of the agreement, including the prosecution’s
promises and the client’s obligations.”). If an attorney perceives
an inaccuracy in the PSI, Utah law provides a route for the
attorney to seek correction. See Utah Code § 77-18-103(5)(a)(i) (“If
there is an alleged inaccuracy in the presentence investigation
report that is not resolved . . . before sentencing: . . . the alleged
inaccuracy shall be brought to the attention of the court at
sentencing . . . .”). Here, neither Counsel nor Sentencing Counsel
sought 	to 	correct 	the 	PSI’s 	incorrect 	labeling 	of 	Weber’s
misdemeanor charge, and in our view a reasonable attorney
would have done so at or before the sentencing hearing.
¶27 	The State resists this conclusion by arguing that Weber’s
attorneys could reasonably have opted not to object to the
5. Both parties agree that the mislabeling did not impact Weber’s
sentence.

State v. Weber
20241246-CA 	13 	2026 UT App 152
apparent typo because it “was inconsequential.” But the error
here was not inconsequential, as we discuss below, in connection
with our analysis of the second prong of the ineffective assistance
test. With regard to Weber’s deficient performance argument, we
see no reasonable strategic purpose for opting not to ask for
correction of the error, and a reasonable attorney would have
done so in this situation.
¶28 	As for prejudice, the parties agree that Weber’s sentence
was not affected by the error. Indeed, the district court was well
aware that the second charge to which Weber pled guilty was a
class 	A 	misdemeanor, 	and 	the 	court 	sentenced 	Weber
accordingly. Thus, Weber makes no assertion that his sentence
was adversely affected by the error in the PSI.
¶29 	But Weber does argue that the error is likely to harm him
in the future, noting that the PSI’s incorrect label “can be utilized
against him in future settings, such as parole hearings.” And the
State does not meaningfully dispute Weber’s contention that the
mislabeled charge could be used against him in the future.
Indeed, Utah law makes clear that “a defendant’s PSI may be
utilized in future settings, such as parole hearings.” State v.
Samulski, 2016 UT App 226, ¶ 18, 387 P.3d 595 (cleaned up); see also
State v. Post, 2015 UT App 162, ¶ 11 n.7, 354 P.3d 810 (“Even where
inaccuracies in a PSI do not affect a defendant’s sentence, it is
necessary that the defendant’s objections be resolved on the
record because the statements in a defendant’s PSI may be utilized
in future settings, such as parole hearings.”(cleaned up)); State v.
Monroe, 2015 UT App 48, ¶ 10, 345 P.3d 755 (“[E]ven though the
sentence was not flawed . . . , the PSI will follow [the] [d]efendant
through 	the 	justice 	system, 	and 	it 	is 	important 	to 	make
appropriate 	corrections 	to 	the 	report.”). 	And 	on 	the 	facts
presented here, we do not view it as unduly speculative for Weber
to claim that the labeling of the charges contained in his PSI could
very well have an adverse impact on him in the future.

State v. Weber
20241246-CA 	14 	2026 UT App 152
¶30 	As of the time of the charged crimes, an aggravated-child-
abuse charge required the State to prove that a defendant caused
“serious physical injury” to a child, while a non-aggravated-child-
abuse charge required only a showing of “physical injury.”
Compare Utah Code § 76-5-109(3) (2023) (“Any person who inflicts
upon a child physical injury or, having the care or custody of such
child, causes or permits another to inflict physical injury upon a
child is guilty of an offense as follows: . . . if done intentionally or
knowingly, the offense is a class A misdemeanor.” (emphasis
added)), with id. § 76-5-109.2(2) (“An actor commits aggravated
child abuse if the actor: (a) inflicts upon a child serious physical
injury; or (b) having the care or custody of such child, causes or
permits another to inflict serious physical injury upon a child.”
(emphasis added)).
¶31 	“Physical injury” was statutorily defined as “an injury to
or condition of a child which impairs the physical condition of the
child, including: (i) a bruise or other contusion of the skin; (ii) a
minor laceration or abrasion; (iii) failure to thrive or malnutrition;
or (iv) any other condition which imperils the child’s health or
welfare and that is not a serious physical injury.” Id. § 76-5-
109(1)(e). By contrast, “serious physical injury” was defined as
“any physical injury or set of injuries that: (A) seriously impairs
the child’s health; (B) involves physical torture; (C) causes serious
emotional harm to the child; or (D) involves a substantial risk of
death to the child.” Id. § 76-5-109(1)(f)(i). The statutory definition
also 	included 	several 	examples 	of 	serious 	physical 	injuries,
including “any combination of two or more physical injuries
inflicted by the same person, either at the same time or on
different occasions”; “any conduct toward a child that results in
severe 	emotional 	harm, 	severe 	developmental 	delay 	or
intellectual disability, or severe impairment of the child’s ability
to function”; and “any conduct that results in starvation or failure
to thrive or malnutrition that jeopardizes the child’s life.” Id. § 76-
5-109(1)(f)(ii)(E), 	(G), 	(J). 	Under 	the 	applicable 	statutes, 	an
aggravated-child-abuse charge required the State to prove that a

State v. Weber
20241246-CA 	15 	2026 UT App 152
defendant had engaged in conduct that was significantly more
egregious than the conduct necessary to prove a non-aggravated-
child-abuse 	charge. 	Under 	these 	circumstances, 	there 	is 	an
appreciable risk that a parole board examining the issue after the
fact could draw an inaccurate conclusion about the nature of the
injuries Weber admitted to inflicting upon Matthew.
¶32 	Accordingly, we agree with Weber that his attorneys
rendered ineffective assistance by not seeking to correct the
mislabeling of his misdemeanor charge in the PSI. While this error
did 	not 	adversely 	affect 	Weber’s 	sentence, 	Weber 	has
demonstrated a reasonable possibility of prejudice with regard to
future events. We therefore remand this case to the district court
for the limited purpose of correcting the PSI to fix the error by
removing the “aggravated” label from his agreed-upon non-
aggravated class-A-misdemeanor charge.
II. Not Arguing for a Lesser Sentence
¶33 	Next, Weber argues that Sentencing Counsel rendered
ineffective assistance at the sentencing hearing when he “did not
argue that [Weber] should be placed on probation.” The State
disagrees, 	asserting 	first 	that 	Sentencing 	Counsel 	at 	least
impliedly argued that Weber should be placed on probation and
that the district court understood the gist of the argument, and
further asserting that Weber has not demonstrated prejudice in
any event. We agree with the State.
¶34 	After reviewing the transcript of the sentencing hearing,
we can see Weber’s point: Sentencing Counsel did not ever
expressly 	argue 	that 	the 	court 	should 	suspend 	any 	prison
sentence and afford Weber the privilege of probation. But we also
take the State’s point that Sentencing Counsel was incorporating
by reference a lot of the argument he had just made during
Stepmother’s sentencing hearing, telling the court, “Your Honor,
you’ve heard the majority of it, and I’m not going to repeat too
much. I would like to make a couple of distinctions here.” The

State v. Weber
20241246-CA 	16 	2026 UT App 152
transcript of Stepmother’s hearing is not a part of the record
submitted to us, so we of course cannot be sure that an argument
for probation was expressly made there either. But at Weber’s
hearing, Sentencing Counsel went on to make certain arguments
that don’t seem to make sense other than in the context of an
argument for probation: that Weber’s criminal history was “over
10 years old” and was “all old stuff” that “doesn’t show any
negative trend”; that Weber had made a “full relinquishment of
parental rights” and that there was therefore “no chance that he
[would] be seeing” Matthew again; and that Weber had taken
serious steps to change his behavior and accept responsibility.
And the State, in response to Sentencing Counsel’s argument,
appeared to believe that it was arguing against a probation
recommendation; 	the 	prosecutor 	made 	specific 	arguments
rebutting Sentencing Counsel’s points and concluded by asking,
“on behalf of the State, that a prison sentence be imposed.” From
context, then, it appears to us that the court understood that it was
being asked to decide between probation and prison; indeed, after
considering Weber’s allocution, the court made a specific ruling
that it was “going to follow the recommendation of the State here,
and sentence [Weber] to one to 15 years in the Utah State Prison.”
¶35 	The 	question 	before 	us, 	then, 	is 	whether 	Sentencing
Counsel had an obligation to make a more express argument for
probation and, if he had, whether such an argument would have
made a difference in the outcome of the hearing. Here, we can
assume, for purposes of our analysis and without deciding, that
Sentencing Counsel performed deficiently by not making a more
explicit argument for probation, because we conclude that, even
if 	he 	had 	made 	such 	an 	argument, 	there 	is no 	reasonable
probability that the outcome of the sentencing hearing would
have been any different. See State v. Aitken, 2022 UT App 21, ¶ 12,
505 P.3d 1159 (“Where it is readily apparent from the record that
a defendant suffered no prejudice, a court need not determine
whether counsel’s performance was deficient before examining

State v. Weber
20241246-CA 	17 	2026 UT App 152
the prejudice suffered by the defendant as a result of the alleged
deficiencies.” (cleaned up)).
¶36 	“Prejudice occurs when there is a reasonable probability
that, but for an attorney’s unprofessional errors, the result of the
proceeding 	would 	have 	been 	different, 	and 	a 	reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” State v. Vine, 2025 UT App 147, ¶ 73, 580 P.3d 401
(cleaned up). “Prejudice analysis is counterfactual. To decide
whether a [proceeding] affected by error is reasonably likely to
have turned out differently we have to consider a hypothetical—
an 	alternative 	universe 	in 	which 	the 	[proceeding] 	went 	off
without the error.” State v. Ellis, 2018 UT 2, ¶ 42, 417 P.3d 86.
¶37 	Here, 	we 	therefore 	must 	envision 	a 	counterfactual
sentencing hearing in which Sentencing Counsel did more than
make implied arguments for a suspended prison sentence and
probation and instead argued expressly and more forcefully for
that outcome. But we don’t see a reasonable probability of a
different 	outcome 	in 	that 	hypothetical 	hearing. 	Given 	the
arguments Sentencing Counsel already made, in our view the
differences between the actual hearing and the hypothetical one
amount to a few lines of argument making a more express plea
for probation, as well as some additional emphasis on the factors
supporting that position, including more explicit reference to the
fact that the sentencing guideline matrix supported probation. We
see no reasonable probability that these things would have
changed the outcome.
¶38 	Indeed, 	the 	district 	court 	already 	had 	all 	of 	this
information. It was aware, from reviewing the PSI, that the matrix
indicated that probation should be considered. And it was aware
that AP&P and the State were recommending otherwise. It was
also aware of the fact that Weber’s criminal history was quite
dated. And it was aware that Weber had taken certain steps since
his arrest—including relinquishing his parental rights—to help
ensure that he wouldn’t harm Matthew again. But even knowing

State v. Weber
20241246-CA 	18 	2026 UT App 152
all of this information, the court still sentenced Weber to prison,
explaining that it considered this case exceptional and that Weber
had, in its view, inflicted “egregious torture” on Matthew.
¶39 	In this situation, we simply don’t think a more express
argument 	from 	Sentencing 	Counsel 	would 	have 	made 	a
difference in the outcome of the hearing. Thus, we reject Weber’s
second claim of ineffective assistance on prejudice grounds.
III. The Rule 23B Motion
¶40 	Weber next asks us to grant his motion, filed pursuant to
rule 23B of the Utah Rules of Appellate Procedure, seeking
remand to the district court for supplementation of the record to
support additional claims of ineffective assistance of counsel.
Under that rule, a defendant “may move the court to remand the
case to the [district] court for entry of findings of fact, necessary
for the appellate court’s determination of a claim of ineffective
assistance of counsel.” Utah R. App. P. 23B(a). “We apply a four-
part test to evaluate rule 23B motions.” State v. Samora, 2021 UT
App 29, ¶ 50, 484 P.3d 1206 (cleaned up). “First, the motion must
allege facts not already in the record. Second, those factual
allegations must not be speculative. Third, the allegations must
demonstrate that counsel performed deficiently, and fourth, the
allegations 	must 	show 	that 	counsel’s 	deficient 	performance
prejudiced the defendant.” State v. Tuinman, 2023 UT App 83,
¶ 103, 535 P.3d 362 (cleaned up).
¶41 	In his motion, Weber identifies two additional ineffective
assistance 	claims 	that 	he 	acknowledges 	are 	not 	currently
supported by the record. First, he posits that Counsel rendered
ineffective assistance by not discussing certain trial strategy
matters with him prior to entry of his plea. Second, he believes
that 	Counsel 	and 	Sentencing 	Counsel 	rendered 	ineffective
assistance by not seeking to supplement the factual recitation
contained in the PSI. We address these potential claims, in turn.

State v. Weber
20241246-CA 	19 	2026 UT App 152
A. 	Pre-Plea-Deal Claims
¶42 	Weber claims that Counsel rendered ineffective assistance
by not discussing certain matters with him before he entered into
the plea agreement, a circumstance that Weber claims resulted in
him entering an unknowing guilty plea. We discuss the matters to
which Weber points more fully below, but in summary we agree
with the State’s position that Weber cannot show prejudice even
if the additional evidence he identifies were in the record.
¶43 	To demonstrate prejudice for purposes of an ineffective
assistance claim in the context of a guilty plea, a defendant must
show “a reasonable probability that, but for counsel’s errors, [the
defendant] would not have pleaded guilty and would have
insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
And to make this showing, the defendant must show “that a
decision to reject the plea bargain would have been rational under
the circumstances.” State v. Walker, 2013 UT App 198, ¶ 42, 308
P.3d 573 (cleaned up). This is an objective test, and so a defendant
must do more than simply allege that the defendant would have
insisted on going to trial but for counsel’s mistakes. See Gray v.
State, 2017 UT App 93, ¶ 11, 400 P.3d 1081 (“A defendant’s mere
allegation that [the defendant] would have insisted on trial but for
. . . trial counsel’s errors . . . is ultimately insufficient to entitle the
defendant] to relief.” (cleaned up)). And it is the defendant who
“bears the 	burden 	of 	demonstrating 	that the 	plea 	was not
knowingly and voluntarily made.” State v. Young, 2023 UT App
26, ¶ 12, 527 P.3d 1107.
¶44 	In determining whether a defendant has shown prejudice
in this context, a reviewing court must “look to the factual
circumstances surrounding the plea to determine whether [the]
defendant would have proceeded to trial” in the absence of
counsel’s error. See Gray, 2017 UT App 93, ¶ 11 (cleaned up). One
important piece of the puzzle, in this context, is the strength of the
State’s case. See Walker, 2013 UT App 198, ¶ 42 (“Courts review
the strength of the prosecutor’s case as the best evidence of

State v. Weber
20241246-CA 	20 	2026 UT App 152
whether 	a 	defendant 	in 	fact 	would 	have 	changed 	[the
defendant’s] plea and insisted on going to trial.” (cleaned up)).
Another important piece of the puzzle is the favorability of the
plea agreement offered by the State; indeed, where the State’s case
is strong, and the plea deal on the table is favorable, a defendant
will have a difficult time demonstrating prejudice in this context.
See Lee v. United States, 582 U.S. 357, 367 (2017) (stating that “[a]
defendant without any viable defense” and who is “facing . . . long
odds” at trial “will 	rarely be able to show prejudice from
accepting 	a 	guilty 	plea 	that offers [the 	defendant] 	a 	better
resolution than would be likely after trial”). And yet another piece
of the puzzle is the gravity of the alleged mistake made by
counsel; here, courts must evaluate how much of a difference it
would have made to the plea assessment process had counsel not
made the mistake in question. Cf. Gray, 2017 UT App 93, ¶ 11
(stating that where “the alleged error of counsel is a failure to
advise the defendant of a potential affirmative defense to the
crime charged, the resolution of the prejudice inquiry will depend
largely on whether the affirmative defense likely would have
succeeded at trial” (cleaned up)).
¶45 	Looking at these pieces, we conclude that there is no
reasonable probability that Weber would have rejected the plea
deal even in the absence of the attorney errors he alleges. First, the
State’s case against Weber was very strong. Perhaps the best
evidence the State had was Weber’s own admissions that the
family took great pains—even sleeping in shifts at night—“to
prevent [Matthew] from getting into the kitchen” and that Weber
himself had “tied [Matthew’s] hands up twice, for his own
protection, for about 20 minutes each time.” Indeed, at the plea
hearing, Counsel stated that Weber was “not contesting that food
was withheld, or that [Matthew] was tied up on a couple of
occasions.” Thus, the State had evidence from Weber’s own
mouth that he had denied Matthew food and had tied him up.
And Weber’s admissions were corroborated by a host of credible
evidence. Matthew himself told police that “his parents were

State v. Weber
20241246-CA 	21 	2026 UT App 152
mean, tied him up, and hit him with things” and that “his parents
did not feed him.” Matthew’s stepbrothers acknowledged that
Matthew was often tied up and that they sometimes participated.
And Matthew’s stepsister Cara said that Weber and Stepmother
had used “food [as] a punishment” for Matthew and that the
family treated Matthew “as if they were babysitting him and not
like he was part of the family.”
¶46 	In addition to this strong testimonial evidence, the State
also possessed physical evidence that powerfully supported its
case. Detective, when he saw Matthew, observed that Matthew’s
physical condition was poor and that it looked like Matthew had
been “bound for long periods of time” and that “nutrition [had
been] 	withheld.” 	When 	Matthew 	was 	seen 	by 	medical
professionals, he weighed in at thirty-seven pounds, far less than
a nine-year-old should weigh.6 A doctor who treated Matthew
thereafter observed that “the totality of injuries and findings
identified in [Matthew could not] plausibly be explained by
accidental 	injury, 	preexisting 	medical 	illness, 	reasonable
discipline, or benign events.” And Matthew gained six pounds in
the first two and a half weeks he was out of Weber’s care. All of
this evidence, taken together, points overwhelmingly toward the
conclusion that Weber tied Matthew up and did not provide him
with sufficient nutrition.
¶47 	Second, the plea deal offered to Weber appears to us to be
favorable under the circumstances. As noted, Weber faced four
second-degree-felony charges of aggravated child abuse. Under
the plea agreement, however, the State agreed to dismiss two of
the charges altogether and to reduce a third charge to a class A
misdemeanor. Given the strength of the State’s overall evidence,
6. Nine-year-old boys typically weigh between 50 pounds (5th
percentile) and 90 pounds (95th percentile). See 2 to 20 years: Boys
Stature-for-age 	and 	Weight-for-age 	percentiles, 	U.S. 	Centers 	for
Disease Control & Prevention, https://www.cdc.gov/growthchart
s/data/set2clinical/cj41c071.pdf [https://perma.cc/FX8Y-NVMH].

State v. Weber
20241246-CA 	22 	2026 UT App 152
these were significant concessions. A decision to go to trial here
bore a significant risk of conviction on all four second-degree-
felony charges.
¶48 	Finally, when we examine the specific nature of the items
Weber now identifies, we do not think any of these things—or
even 	all 	of 	them 	taken 	together—would 	realistically 	have
changed Weber’s mind about whether to accept the favorable plea
deal in the face of such strong evidence. Weber references various
matters outside the record that he claims to have been unaware of
at the time he entered the plea agreement and that he claims
“strongly supported his defense.” The specific matters that Weber
claims Counsel did not discuss with him are these:
• 	Certain 	medical 	records 	showing 	(a) 	that
Matthew 	had 	chronically 	low 	weight 	and
(b) that Mother was a carrier of a certain form of
muscular dystrophy. From this evidence, Weber
wants to argue that Matthew might have had a
medical condition that caused his low weight
and that his low weight had nothing to do with
maltreatment.
• 	Information from the various police reports in
the case, including (a) parts of Stepmother’s
police interview, wherein Stepmother stated that
in 2017, Matthew was diagnosed with “failure to
thrive” and that Matthew had often exhibited
“bad behavior”; (b) parts of Chelsey’s police
interview, wherein she stated that “her parents
[weren’t] 	abusive, 	and 	they 	had 	great
intentions” 	and 	that 	Weber’s 	actions 	in
monitoring Matthew were attempts to protect
him from self-harming; and (c) a reference to
Matthew’s CJC 	interview, 	wherein 	Detective
apparently “asked [Matthew] if someone did

State v. Weber
20241246-CA 	23 	2026 UT App 152
something to him that he did not think was right,
and he said, ‘No, not really.’”
• 	Information indicating that the text messages
found on Weber’s and Stepmother’s phones—
including Weber’s texts referring to Matthew as
a “little fucker” and stating that he was “going
to get rid of [Matthew] as soon as [he got]
home”—may have been obtained in violation of
the Fourth Amendment to the United States
Constitution and that it may have been possible
to obtain an order suppressing them.
¶49 	In support of his rule 23B motion, Weber also includes his
own sworn affidavit, wherein he avers, “Had I seen the transcript
of 	[Stepmother’s] 	interview 	with 	police, 	the 	transcript 	of
[Chelsey’s] interview with police, [Detective’s] narrative report of
Matthew’s . . . CJC interview, [and] all medical records related to
Matthew, and had I known that evidence of text messages
between my [w]ife and I were obtained illegally, I would not have
pled no-contest to the charged crimes.”
¶50 	But as noted, this inquiry is not a subjective one, and
Weber’s averment is not enough to demonstrate prejudice here.
See Gray, 2017 UT App 93, ¶ 11 (“A defendant’s mere allegation
that [the defendant] would have insisted on trial but for . . . trial
counsel’s errors . . . is ultimately insufficient to entitle [the
defendant] to relief.” (cleaned up)). We must consider whether,
under the totality of the factual circumstances surrounding the
plea, this new information would have been enough to make an
objective person change his or her mind about whether to accept
the plea deal offered. See id. And in this case, we don’t think any
of 	this 	new 	information—even 	taken 	together—would 	have
changed things.
¶51 	First, the medical records in question show only that
Mother was a carrier of a form of muscular dystrophy; as Weber

State v. Weber
20241246-CA 	24 	2026 UT App 152
explains it, Matthew would have had this disorder only if
Matthew’s biological father had also been a carrier, and there is no
indication—either 	in 	the 	record 	or 	in 	Weber’s 	rule 	23B
submissions—that Weber or any other possible biological father
was a carrier or that Matthew actually had the disorder. It is thus
rank speculation as to whether Matthew might have had any such
disorder. In addition, the medical records in question also show
that when Matthew was four years old, he was evaluated at a
hospital and that “[h]is growth and weight gain [were] poor
(. . . <1st percentile for weight)” and that this was “likely due to
poor intake rather than cardiac in nature.” Thus, the records
provide no meaningful support for Weber’s contention that
Matthew’s small size was due to genetics. Moreover, even if the
records could provide some support for that contention, that
would have done little to benefit Weber’s case. While withholding
food is a highly questionable form of discipline for any child,
withholding food from a child with a genetic disorder that keeps
him chronically underweight would be particularly egregious.
¶52 	Second, 	the 	police 	report 	evidence 	from 	Stepmother,
Chelsey, and Matthew is not all that helpful to Weber’s case.
Stepmother’s and Chelsey’s statements about Matthew’s bad
behavior are irrelevant: it is no defense to a child abuse charge to
say 	that 	the 	child 	deserved 	it. 	Stepmother’s 	statement 	that
Matthew had been characterized as “fail[ing] to thrive” when he
was two years old—before he came to live with Weber—is
marginally helpful, but that statement is not corroborated by
medical 	records 	or 	other 	evidence, 	and 	one 	wonders 	if
Stepmother would have sufficient foundation to know that.
Similarly, Chelsey’s opinion that Weber and Stepmother weren’t
“abusive” and “had great intentions” also does little to overcome
the State’s evidence; the same is true of Matthew’s statement
about the propriety of the abuse.
¶53 	Third, the text messages that Weber now believes might
have been suppressible were but a minor part of the State’s case.
We will readily assume, for purposes of this part of our analysis

State v. Weber
20241246-CA 	25 	2026 UT App 152
but without deciding, that a motion to suppress those messages
would have succeeded. But excising the text messages from the
State’s case would have done little to weaken it. It follows, then,
that a reasonable person would not have chosen to forgo this
favorable plea deal simply because he or she knew that it might
be possible to obtain an order suppressing the text messages.
¶54 	In short, the State’s case was strong, the plea deal on offer
was favorable, and the items to which Weber now points would
have been extremely unlikely to have made a difference in a
reasonable 	person’s 	decision-making 	process 	in 	assessing
whether to accept the plea offer. For these reasons, even if the
additional items were incorporated into the record, Weber would
not be able to show that he was prejudiced by any error Counsel
made in not discussing these items with him prior to his plea.
B. 	Additional PSI Claims
¶55 	Weber also claims that his attorneys rendered ineffective
assistance by not attempting to supplement the factual recitation
contained in the PSI. Specifically, he claims that either Counsel or
Sentencing Counsel should have made a motion asking the
district court to order AP&P to amend the PSI’s factual recitation
to include a reference to medical records showing Matthew’s
chronic low weight and Mother’s genetic testing, arguing that the
PSI, as submitted, “painted an incomplete picture of Matthew’s
complications.” The State claims that Weber’s attorneys did not
perform deficiently by opting not to raise this issue because a
reasonable 	attorney, 	under 	these 	circumstances, 	could 	have
decided not to seek to supplement the PSI’s factual recitation. We
agree with the State.
¶56 	An attorney who elects to forgo a futile motion or objection
does not render deficient performance. See State v. Whytock, 2020
UT App 107, ¶ 43, 469 P.3d 1150 (“When seeking particular relief
would be futile, an attorney does not perform deficiently by
failing to seek it.” (cleaned up)). And again, “while the ultimate

State v. Weber
20241246-CA 	26 	2026 UT App 152
question is not whether there was a possible strategic reason for
counsel’s 	conduct, 	but 	instead 	whether 	that 	conduct 	was
objectively reasonable, if it appears counsel’s actions could have
been intended to further a reasonable strategy, a defendant has
necessarily failed to show unreasonable performance.” State v.
Repsher, 2025 UT App 50, ¶ 46, 568 P.3d 1095 (cleaned up).
¶57 	Here, 	Weber 	does 	not 	claim 	that 	the 	PSI 	contained
incorrect factual information; rather, he argues that additional
information was required because, as written, the PSI “painted an
incomplete 	picture 	of 	Matthew’s 	complications.” 	However,
Weber’s attorneys had no statutory obligation to seek to include
additional 	information 	in 	the 	PSI 	when 	the 	current 	factual
recitation contained accurate information. See Utah Code § 77-18-
103(5)(a)(i)(A) (“If there is an alleged inaccuracy in the presentence
investigation report that is not resolved . . . before sentencing: . . .
the alleged inaccuracy shall be brought to the attention of the
court at sentencing . . . .” (emphasis added)). Further, Weber’s
attorneys could have reasonably decided to forgo making the
particular motion Weber identifies here, because they could
reasonably have believed that this battle wasn’t one worth
fighting. See State v. Cartwright, 2026 UT App 78, ¶ 53, 592 P.3d
614 (concluding that an attorney had not rendered ineffective
assistance by declining to lodge an objection, on the basis that the
attorney “could have reasonably viewed an objection to this
question as a battle not worth fighting”), cert. denied, 594 P.3d 1083
(Utah 2026). Counsel and Sentencing Counsel could reasonably
have believed that the addition of this information was extremely
unlikely to have made a difference to the court’s sentencing
decision. 	Indeed, 	they 	could 	reasonably 	have 	believed 	that
pushing for this information to be included in the PSI could have
caused the court to believe that Weber was reluctant to take
responsibility for his actions; after all, AP&P, in suggesting a
deviation from the matrix’s recommendation, had offered its view
that 	Weber 	had 	taken 	“no 	accountability 	for 	the 	injuries
[Matthew] sustained.”

State v. Weber
20241246-CA 	27 	2026 UT App 152
¶58 	For these reasons, even if the additional information was
incorporated into the record, Weber could not demonstrate that
his attorneys rendered ineffective assistance by opting not to seek
its inclusion in the PSI’s factual recitation. We therefore deny
Weber’s rule 23B motion.
CONCLUSION
¶59 	We affirm Weber’s sentence and deny his rule 23B motion
because Weber has not demonstrated that, with regard to those
matters, his attorneys rendered ineffective assistance. But we
agree 	with 	Weber 	that 	his 	attorneys 	rendered 	ineffective
assistance in not seeking to correct the PSI’s mislabeling of the
class A misdemeanor offense to which Weber pled guilty, and we
therefore remand this case to the district court for the limited
purpose of correcting that error.