Opinion
T1 Dаvid Alexander Gunter appeals from convictions for aggravated sexual abuse of a child, see Utah Code Ann. § 76-5-404.1(4)-(5) (LexisNexis 2012), 1 and four counts of lewdness involving a child, see id. § 76-9-702.5. We affirm.
BACKGROUND 2
12 Gunter was convicted after he inappropriately touched and repeatedly exposed himself to a child (Child). After Child disclosed the abuse to the authorities, police investigators arranged a recorded telephone call between Child and Gunter. During that conversation, Child confronted Gunter about the incidents. Gunter initially denied some of Child's accusations, but later indicated that the responsibility is "exactly 50/50 here" without identifying the specific conduct at issue. As the taped conversation continued, *870 Gunter admitted, "[Blecause I'm older, I'm taking responsibility," "I totally take the blame," "I'm the one who should have totally put an end to it," "I'm more responsible ... I should carry more guilt than you," and "I swear on my life that none of this will ever happen again."
13 Gunter was charged with three counts of sexual abuse of a child and four counts of lewdness involving a child. The sexual abuse charges were later amended to aggravated sexual abuse of a child due to Gunter being in a position of special trust. The trial court appointed attorney Aric Cramer to represent Gunter. Cramer conducted several rounds of discovery, issued subpoenas, and obtained court-ordered funding to pay for a private investigator.
1 4 The trial court continued a preliminary hearing originally scheduled for January 23, 2009, to February 6, 2009, based on the State's motions indicating its witnesses were unavailable to testify on the original date. Thereafter, the February 6 hearing was continued for reasons that are not apparent from the record. Cramer did not object to either continuance and used the additional time to conduct discovery.
T5 Subsequently, Cramer withdrew as counsel and was replaced by substitute counsel who represented Gunter at a March 10, 2009 preliminary hearing. At the conclusion of that hearing, the magistrate dismissed one of the three counts of aggravated sexual abuse of a child but found probable cause to bind Gunter over on the remaining counts. 3 Substitute counsel then successfully moved for a reduction in Gunter's bail, which allowed Gunter to post a bond. At the next review hearing, Gunter failed to appear. The trial court ordered the bond forfeited and issued a $100,000 cash-ouly warrant for Gunter's arrest. Gunter was arrested at his home in Hurricane, Utah. At a new review hearing on July 21, 2010, the trial court again allowed Gunter to be released on bond.
T6 Around that same time, the trial court appointed second substitute counsel for Gun-ter as a result of first substitute counsel's ill health. Several months before trial, Gun-ter's defense was again reassigned with Cramer reappearing as Gunter's counsel. Cramer immediately renewed his discovery efforts. Approximately two weeks before trial, Gunter replaced Cramer with private counsel, Nicholas Chamberlain. The substitution of counsel filed by Chamberlain contains no indiсation that his appearance was for a limited purpose.
T7 Gunter again failed to appear for a review hearing one week before trial. That same day, Chamberlain filed a motion to suppress the recorded telephone conversation between Gunter and Child. After jury selection was completed on the first day scheduled for trial, the trial court held an evidentiary hearing on the motion to suppress. The trial court denied the motion and the trial proceeded the following day.
18 Gunter also did not appear for trial. The trial court concluded that Gunter "had voluntarily absented himself" and proceeded with the trial in Gunter's absence. In doing so, the trial court admonished the jury not to make any negative infеrences based on Gun-ter's absence. - Chamberlain represented Gunter during the suppression hearing and at every stage of trial, without giving the trial court any indication that he was appearing for a limited purpose. Despite Gunter's absence, Chamberlain never asked for a continuance, informed the trial court whether he knew where Gunter was, objected to proceeding with trial in absentia, or otherwise addressed Gunter's absence on the record. Chamberlain did, however, successfully move for a directed verdict on one count of aggravated sexual abuse of a child at the close of the State's case-in-chief.
T9 The jury convicted Gunter of the one remaining count of aggravated sexual abuse of а child and on all four counts of lewdness involving a child. The trial court issued a $200,000 cash-only warrant for Gunter's arrest and ordered that his second bond be forfeited. - Chamberlain then withdrew as counsel. Several months later, Gunter was *871 arrested in Mexico and extradited to Utah. At that time, the trial court appointed post-trial counsel to represent Gunter.
[10 Posttrial counsel filed a motion for a new trial alleging that the trial court conducted an inadequate inquiry into the volun-tariness of Gunter's absence from trial, that the trial court could not have found Gunter voluntarily absent if it had known all the facts, and that Chamberlain was ineffective at trial due to the lack of preparation time and his inexperience. The motion for a new trial included an аffidavit from Gunter in which he claims that he hired Chamberlain on a limited engagement to pursue only the suppression motion. Gunter's affidavit further indicates that he was stranded in Laughlin, Nevada during trial, that he had informed Chamberlain of that fact the day before trial, and that he spoke with Chamberlain at least six times during the trial proceedings.
{11 On August 10, 2011, the trial court heard arguments on Gunter's motion for a new trial prior to sentencing. Gunter argued that his absence was not voluntary because he was stranded in Nevada and that Chamberlain ineffectively failed to provide that information to the trial court. Gunter also claimed that the trial court should have sua sponte reappointed Cramer because he had "prepared a defense" for trial and hаd effectively used the services of the private investigator, while Chamberlain was obviously unprepared. In response, the State argued that there was no evidence beyond Gunter's own statements that he was actually stranded in Nevada during trial and that, because Gunter had chosen to replace Cramer with Chamberlain two weeks before trial, he had caused any resulting prejudice. After argument, the trial court denied the motion for a new trial, indicating only that "[the motion for a new trial does not have sufficient legal grounds to support it." The trial court then proceeded with sentencing.
{12 Gunter's allocution included a statement to the effect that he was stranded in Nevada during trial. The trial court replied that Gunter had "voluntarily absеnted [him-Iself from the trial of this matter" and specifically indicated that Gunter lacked credibility "[iln view of [his] continuing adherence to a position that bears no relationship to the truth." The trial court then sentenced Gun-ter to an indeterminate prison term of fifteen years to life on the aggravated sexual abuse of a child conviction and concurrent one year terms on the lewdness convictions. Gunter timely appealed. He then filed a motion to this court for a remand under rule 28B of the Utah Rules of Appellate Procedure. We ordered that all briefing on the rule 28B motion should proceed contemporaneously with plenary briefing. The State subsequently moved to strike Gunter's brief, arguing that it relied almost exclusively on non-record evidence. We declined to strike Gunter's brief. 4
ISSUES AND STANDARDS OF REVIEW
113 Gunter requests that we remand this case to the trial court under rule 28B of the Utah Rules of Appellate Procedure to create a record regarding his ineffective assistance of counsel claim. See generally Utah R.App. P. 28B(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. The motion shall 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.").
114 Next, Gunter claims that the trial court erred in holding Gunter's trial in absentia because the trial court did not properly inquire into whether Gunter was volun
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tarily absent. Whether a trial court properly tried a defendant in absentia is a mixed question of law and fact. See State v. Pando,
115 Gunter further alleges that he received ineffective assistance of counsel because his pretrial counsel, Cramer, failed (1) to effectively communicate with Gunter in preparation for trial and (2) to obtain Gun-ter's consent to a continuance of the preliminary hearing. Gunter also claims that he received ineffective assistance of counsel because his trial counsel, Chamberlain, failed (1) to inform the trial court that Gunter had contacted counsel regarding circumstances surrounding his absence from the trial proceedings and (2) to provide effective assistance where he was hired for the limited purpose of representing Gunter on a suppression issue and not in the trial procеedings. "An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law." State v. Clark,
ANALYSIS
I. Rule 28B Motion for Remand
T16 Gunter requests that we remand this case to the trial court to create a record regarding his claim that he received ineffective assistance of counsel from his pretrial counsel, Cramer, and his trial counsel, Chamberlain. "The purpose of [rJule 238B is for appellate counsel to put on evidence he or she now bas, not to amass evidence that might help prove an ineffectiveness of counsel claim." State v. Johnston,
A. Remand to Establish Cramer's Ineffectiveness is Unnecessary.
117 Gunter first seeks a remand to develop the evidentiary record to support his allegation that Cramer failed to exercise reasonable professional judgment when he stipulated to continuances of the preliminary hearing without obtaining Gunter's consent. 5 In support, he relies on rule 7(h)(2) of the Utah Rules of Criminal Procedure. See Utah R.Crim. P. 7(Lb)(@Q) ("If the defendant does not waive a preliminary examination, the magistrate shall schedule the preliminary examination [to] be held within a reasonable time, but not later than *873 ten days if the defendant is in custody for the offense charged. ...").
Even i#f Gunter is correct that Cramer never discussed the continuances with him, he cannot establish that Cramer's conduct fell below an acceptable level of performance. First, Gunter fails to cite any authority that would require defense counsel to obtain the consent of a defendant to a continuance of the preliminary hearing. Cf. Taylor v. Illinois,
T19 Additionally, Gunter has failed to explain how he was prejudiced by Cramer's decisions. To the contrary, Gunter concedes that part of the reason Cramer did not object to the State's motion for a continuance was so that he could use the additional time to obtain discovery from the State. Under these cireumstances, Gunter has failed to convince us that a remand under rule 23B is necessary to establish Cramer's ineffectiveness.
B. Remand to Establish Chamberlain's Ineffectiveness is Unnecessary.
1 20 Gunter also contends that a remand is necessary to establish that Chamberlain ineffectively failed to notify the trial court that Gunter was involuntarily absent from trial and similarly failed to seek a continuance so that Gunter could be present at trial He also argues that a remand will establish that Chamberlain was unprepared and unauthorized to represent him at trial. According to the State, remand is unnecessary because most of Gunter's allegations are contained in his motion for a new trial, which is part of the record on appeal.
121 Gunter's posttrial counsel filed a motion for a new trial advancing the same arguments Gunter now argues on appeal. Attached to the new trial motion is an affidavit from Gunter, claiming that Chamberlain had been hired only to pursue the suppression motion, that Gunter had informed Chamberlain thаt he was stranded in Laugh-lin, Nevada during trial, and that he was in contact with Chamberlain throughout trial. The trial court rejected these arguments, determining that Gunter lacked credibility. In support of his motion for a rule 23B remand, Gunter attaches a second affidavit from himself and an affidavit from Chamberlain. Most of the facts alleged in these affidavits are cumulative of facts Gunter alleged in his motion for a new trial and are therefore not supportive of a rule 23B remand. See State v. Johnston,
122 However, Gunter's rule 23B affidavit further indicates, "I did not [meet] with ... Chamberlain in preparation for trial, nor did I discuss matters such as witnesses or other evidence which may be brought forward in my defense as I had previously done with Cramer." Gunter's affidavit also states, "I believed that these witnesses would either contradict [Child's] accusations, or provide the trial court with additional information and evidence proving my innocence." These statements fail to establish prejudice because
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Gunter never identifies the witnesses that his counsel allegedly failed to investigate, what those witnesses would have said, or how that testimony would have affected the outcome of the trial. This court has previously instructed that a "defendant must specifically identify uncalled witnesses and identify specific facts of their testimony that might have helped his case" in justifying a rule 23B remand. See id. T10 (citation and internal quotation marks omitted). Here, Gunter states that he produced "a list of witnesses [ke] wanted to be interviewed and subpoenaed for trial," without providing the identity of those witnesses or describing the specific testimony they would have given in support of his defense. Thus, Gunter has failed to allege "facts not fully appearing in the ree-ord" that would establish prejudicially deficient performance. See Utah R.App. P. 23B(b). Accordingly, we deny his request for a rule 28B remand based on his second affidavit. See State v. Garrett,
123 In addition, Gunter provides an affidavit from Chamberlain in support of his motion for a rule 28B remand. In thаt affidavit, Chamberlain admits that Gunter had informed him that Gunter "was out-of-state, and that due to some difficulty with procuring transportation back in-state, [Gunter] was concerned that he may not be able to attend the trial proceedings." Chamberlain also indicates that he "remained in telephonic contact with [Gunter] throughout the trial proceedings" and that he "did not alert the trial court to the fact that [Gunter] had contacted [him] telephonically, nor did [he] alert the trial court to the cireumstances surrounding [Gunter's] absence or seek a continuance based upon the same." Although Chamberlain also indicates that if Gunter had been present he would have called him as a witness, he does not elaborate concerning the content of the testimony he expected to elicit from Gunter in his defense. See Johnston,
4 24 With respect to Chamberlain's alleged failure to disabuse the trial court of the notion that Gunter was voluntarily absent, his affidavit indicates that he was in contact with Gunter throughout the trial court proceedings but that Chamberlain did not share the circumstances of Gunter's absence with the trial court. This information is cumulative of Gunter's new trial affidavit. And even if Chamberlain's affidavit would have convinced the trial court that Gunter was credible when he reported that he was in contact with his trial counsel, it does not establish that Gunter was involuntarily absеnt. Gun-ter has pointed us to no evidence, including Chamberlain's affidavit, that explains why he was out of state shortly before his trial or how he managed to travel to Mexico immediately after a verdict was rendered against him but was unable to return to Utah to participate in his defense. Accordingly, Gun-ter has not convinced us that a remand under rule 28B is appropriate.
IL Trial In Absentia
A. The Trial Court Inadequately Inquired Into Whether Gunter was Voluntarily Absent.
- $ 25 Gunter contends that the trial court committed reversible error by proceeding with trial in absentia because it failed to conduct an adequate inquiry into whether his absence was voluntary. "'[Dle-fendants have the right to be present at all stages of the criminal proceedings against them and ... it is the burden of the prоsecution to show that an absent defendant has knowingly and voluntarily waived that right' before trying him or her in absentia." State v. Pando,
126 The State concedes that "no direct inquiry by the trial court appears in the record."
6
Thus, the record reflects that the trial court erred by failing to make an adequate inquiry into whether Gunter was voluntarily absent before proceeding with trial in absentia. See State v. Houtz,
B. Any Error was Harmless.
127 "A trial court's error in failing to conduct an adequate inquiry into whether a defendant's absence was voluntary does not merit reversal, however, unless the defendant was prejudiced by the lack of adequate inquiry." Wanosik I,
128 With respect to Gunter's inability to participate in the proceedings, the State argues that any error in the trial court's inquiry or deficiency in Chamberlain's failure to seek a continuance was harmless because the trial court made a posttrial finding that Gunter's absence was voluntary. Gunter's motion for a new trial provided additional evidence, including Gunter's affidavit, in support of his argument that he was involuntarily stranded in Nevada during trial After considering that evidence and argument, the trial court expressly found that Gunter had voluntarily failed to appear at trial. In doing so, the trial court determined that Gunter lacked credibility. Other record evidence *876 supporting the trial court's determination of voluntariness includes that Gunter failed to appear at two pretrial review hearings, resulting in the forfeiture of his bond and a warrant being issued for his arrest, and that Gunter fled to Mexico after trial and had to be extradited to Utah. In addition, Gunter admitted that "he could have made more of an effort to contact the [trial clourt [regarding being stranded] prior to his case going to trial." Indeed, the only record evidence supporting Gunter's argument that he was involuntarily absent from trial was his own affidavit attached to the new trial motion, which contained no independent, corroborating evidence suggesting that Gunter was in fact stranded in Nevada or explaining why he was in Nevada in the first place.
€29 Despite his reliance on the new trial proceedings for establishing that he preserved his objection to trial in absentia, Gun-ter completely ignores on appeal the trial court's finding that he was voluntarily absent, made after considering the evidence offered in support of a new trial. Because he has not challenged that finding, we accept it as true. See C & Y Corp. v. General Biometrics, Inc.,
III. Ineffective Assistance of Counsel
130 The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. See Strickland v. Washington,
31 Gunter argues that Cramer's pretrial efforts were deficient based on (1) his failure to communicate effectively with Gunter in preparation for trial and (2) his failure to obtain Gunter's consent to continue the preliminary hearing. Next, Gunter alleges that Chamberlain was ineffective because (1) he failed to inform the trial court of the cireum-stances surrounding Gunter's absence from trial and (2) he failed to inform the trial court that he had been retained for the limited purpose of bringing the suppression motion and was not authorized to represent Gunter at trial.
A. Cramer's Assistance was Not Deficient.
1382 Gunter's ineffective assistance arguments based on Cramer's pretrial performance fail because Gunter replaced Cram-er with Chamberlain before trial. See gener
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ally State v. Barber,
133 As previously discussed, Gunter's argument that Cramer should have interviewed or subpoenaed witnesses fails to establish deficiency or prejudice because Gunter does not identify the witnesses or the content of their expected testimony. See generally Fernandes v. Cook,
B. Chamberlain's Assistance was Not Deficient.
134 Gunter next argues that Chamberlain rendered ineffective assistance of cоunsel at trial by not seeking a continuance after he learned that Gunter was stranded in Nevada. Specifically, Gunter claims that his attendance and participation at trial were vital to his defense because Chamberlain would have called him as a witness. He further asserts that he was prejudiced because there was a reasonable probability that the trial court would not have proceeded in absentia if Chamberlain had informed it of the reason for Gunter's absence. However, because Gunter has not challenged the trial court's posttrial finding that his absence was voluntary, he cannot establish either deficient conduct or prejudice in Chamberlain's decision not to seek a continuance.
135 There is no requirement that counsel engage in futile acts. See State v. Kelley,
{ 36 Gunter next asserts that Chamberlain rendered ineffective assistance by failing to call any witnesses at trial and by failing "to inform the trial court that he was not hired, nor prepared, to рrovide effective representation." As we have previously determined, Gunter's claims regarding the failure to call other witnesses is too speculative to establish prejudice because he has identified neither the witnesses nor the content of their testimony. See State v. Chacon,
$387 Additionally, the record shows that contrary to the limited fee agreement, Chamberlain filed a general substitution of counsel. Based on Chamberlain's appearance, Cramer withdrew. Although this left Chamberlain as the only counsel of record, Gunter points to no evidence that he objected to Cramer's withdrawal. As counsel of record, Chamberlain immediately filed the suppression motion and, when it was denied, he participated in all aspects of the trial. 8 Although Gunter claims he was in contact with Chamberlain during trial, he does not assert that he instructed Chamberlain not to participate on his behalf.
$88 There is also nothing in the record that demonstrates Chamberlain was unprepared. He participated in jury selection; cross-examined witnesses, making objections during their testimony; participated in drafting the jury instructions; successfully moved for dismissal of one charge of aggravated sexual abuse of a child after the State rested its case-in-chief; and made a closing argument to the jury, Other than the general complaint that Chamberlain was unprepared and inexperienced, Gunter identifies no specific deficiencies in his trial performance. See State v. Classon,
CONCLUSION
139 We deny Gunter's request for a rule 23B remand because Gunter has failed to articulate specific factual allegations that would demonstrate that he was prejudiced by counsel's performance. Although the trial court erred in proceeding with trial in absen-tia without conducting an adequate inquiry into whether Gunter's absence was voluntary, the error was harmless due to the trial court's posttrial consideration of further evidence on that issue and its unchallenged finding that Gunter was voluntarily absent from trial. Gunter has failed to establish that either his pretrial counsel or trial counsel rendered ineffective assistance.
{ 40 Affirmed.
Notes
. Where recent amendments to the Utah Code do not affect our analysis, we cite the most recent version оf the code for the convenience of the reader.
. "On appeal, we recite the facts from the record in the light most favorable to the jury's verdict." Smith v. Fairfax Realty, Inc.,
. - On the first day of trial, the charges were again amended to eliminate one count of aggravated sexual abuse of a child in conformity with the magistrate's dismissal of it at the preliminary hearing.
. Although we exercised our discretion to accept Gunter's brief, the State is correct that the brief cites non-record facts contained in Gunter's motion for a rule 23B remand and supporting affidavits. While our ruling allowed briefing on the rule 23B motion to proceed contemporaneously with plenary briefing, we did not allow Gunter to rely on non-record evidence in suрport of his substantive claims. See State v. Bredehoft,
. - Gunter also initially alleged that Cramer failed to communicate effectively with him or to prepare adequately for trial, but he conceded in his reply brief that no remand is necessary because the record contains sufficient facts to bring a claim of ineffective assistance of counsel on those grounds. Accordingly, we address those arguments in our substantive discussion of Gunter's ineffective аssistance of counsel claim. See infra TT 32-33.
. - After deciding to postpone taking evidence until the day after jury selection, this discussion ensued:
THE COURT: ... that will give [Chamberlain] a chance to talk with [his] client and see what he wants to do.
[THE STATE]: If you can find him.
THE COURT: See how to handle it. I don't even want to know. That's [Chamberlain's] problem. I'm not even going to worry about it.
[CHAMBERLAIN]: Yes, yes.
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(Recess taken)
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THE COURT: Thank you, ladies and gentlemen. We're back on the record in State v. [Gunter]. Mr. Gunter has voluntarily absented himself in these proceedings.
(Emphasis added.)
. In Wanosik I,
. Similarly, neither Gunter nor Chamberlain asserts in his affidavit in support of the rule 23B motion that Gunter registered any objection to Chamberlain acting as trial counsel.
. Because we determine that Gunter's trial counsel was not ineffective, we need not reach Gun-ter's inadequately briefed claim that the trial court should have sue sponte removed Chamberlain and reinstated Cramer.