State v. Collins

This opinion is subject to revision before final
publication in the Pacific Reporter

2014 UT 61

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,
Petitioner,
v.
ROBERT COLLINS,
Respondent.

No. 20130384
December 30, 2014

Third District, Salt Lake
The Honorable Judith S.H. Atherton
No. 051905843

Attorneys:
Samuel P. Newton, Kalispell, MT, for petitioner
Sean D. Reyes, Att‟y Gen., John J. Nielsen, Asst. Att‟y Gen.,
Salt Lake City, for respondent

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
JUSTICE DURHAM, JUSTICE PARRISH, and JUSTICE LEE joined.
ASSOCIATE CHIEF JUSTICE NEHRING filed a dissenting opinion.

CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶1 In this case we are asked to clarify the nature of a
defendant‟s burden of proof in seeking reinstatement of the right to
appeal. Here, defendant Robert Collins failed to appeal his
convictions within the thirty-day deadline for filing a notice of
appeal. Approximately two years after the deadline, he filed a
motion for reinstatement of his right to appeal and argued that our
decision in Manning v. State1 and rule 4(f) of the Utah Rules of

1 2005 UT 61, 122 P.3d 628.
 STATE v. COLLINS
Opinion of the Court
Appellate Procedure required the court to reinstate his appeal
because neither his counsel nor the trial court informed him of the
relevant thirty-day deadline. The trial court denied his motion for
reinstatement. But the Utah Court of Appeals reversed and held that
Mr. Collins was deprived of his right to appeal because he was not
properly informed of the thirty-day filing deadline.
¶2 We reverse the court of appeals‟ decision because the court
erred by declining to apply harmless error analysis. Claims for
reinstatement of the right to appeal are subject to harmless error
review. Consequently, where a defendant seeks reinstatement on the
basis that he was not properly advised of the right to appeal, as is the
case here, he cannot rely solely on that fact. Rather, he must show by
a preponderance of the evidence that he was not properly advised of
the right to appeal and that had he been properly advised he would
have filed an appeal.
¶3 Accordingly, we remand the case to the trial court to
consider whether Mr. Collins has met his burden of showing that he
would have filed an appeal had he known of the thirty-day deadline.
The trial court may exercise its discretion in deciding whether to
hold further hearings on the issue or, instead, to rely on the existing
record.
Background
¶4 In October 2006, a jury found Mr. Collins guilty of one count
of murder and two counts of aggravated robbery. Mr. Collins‟s
counsel, Clayton Simms, then consulted with Mr. Collins in his
holding cell and told him that he thought there were some
“appealable issues.” Mr. Simms also encouraged Mr. Collins to
appeal the jury verdict. Mr. Collins expressed dissatisfaction with
the guilty verdict but responded to Mr. Simms‟s suggestion of filing
an appeal by saying, “I don‟t want to appeal. I accept that.”
¶5 The trial court sentenced Mr. Collins in January 2007 to
three consecutive terms of ten years to life in prison. At that time, the
trial court failed to comply with rule 22(c)(1) of the Utah Rules of
Criminal Procedure by not informing Mr. Collins of his right to
appeal and of the thirty-day deadline for filing a notice of appeal
imposed by rule 4(a) of the Utah Rules of Appellate Procedure.2 But

2Rule 22(c)(1) of the Utah Rules of Criminal Procedure requires,
in part, that “[f]ollowing imposition of sentence, the court shall
advise the defendant of defendant‟s right to appeal and the time
within which any appeal shall be filed.”

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immediately after sentencing, Mr. Simms again advised Mr. Collins
that he could file an appeal and encouraged him to do so.
Mr. Collins maintained that he did not want to appeal. Mr. Simms
responded by telling Mr. Collins to let him know within two weeks
if he changed his mind. Mr. Collins did not contact Mr. Simms
within the next two weeks.
¶6 Over two years later, on January 27, 2009, Mr. Collins sent
the trial court a letter claiming that “[Mr.] Simms informed me he
would file an appeal to this conviction.” Mr. Collins stated that
“since it‟s been so long I asked someone to call the Utah Court of
Appeals and was informed my attorney never filed it.” The trial
court sent Mr. Simms a copy of the letter. Mr. Simms later testified
that the letter was the first time Mr. Collins ever indicated he wanted
to appeal. Mr. Simms wrote back to Mr. Collins and stated that
“[t]here is no appeal. You didn‟t request one.”
¶7 After being appointed new counsel, Mr. Collins filed a
motion seeking reinstatement of his right to appeal pursuant to rule
4(f) of the Utah Rules of Appellate Procedure and our decision in
Manning v. State.3 He supported his motion on two alternative
grounds. First, he argued that Mr. Simms failed to file an appeal
after being expressly told to do so. Second, he argued that neither the
trial court nor Mr. Simms properly advised him of the thirty-day
deadline for filing a notice of appeal.
¶8 The trial court held a hearing on Mr. Collins‟s reinstatement
motion, eliciting testimony from four witnesses, including:
(1) Mr. Simms, (2) Elissa Duckworth, a systems administrator over
the inmate telephone system at the prison, (3) Sylvia Collins,
Mr. Collins‟s sister, and (4) Mr. Collins.
¶9 Mr. Simms recounted that he twice asked Mr. Collins
whether he wanted to appeal and each time he said no. He testified
that he told Mr. Collins that he needed to know within two weeks if
Mr. Collins changed his mind and wanted to file an appeal. He
acknowledged that this advice was not technically correct, but noted
that it is his standard practice to tell clients they need to let him
know within two weeks whether they want to appeal to avoid
having them “call on the 30th day and ask for an appeal.”
¶10 Ms. Duckworth‟s testimony focused on Mr. Collins‟s prison
telephone log. She testified that the call log showed that Mr. Collins

3 2005 UT 61, 122 P.3d 628.

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Opinion of the Court
made 385 phone calls between January 2007 and January 2008. None
of those calls was to Mr. Simms.
¶11 Next, Ms. Collins testified that she received numerous
letters from Mr. Collins while he was in prison and believed, based
on those letters, that his case would be appealed.
¶12 Mr. Collins testified last. He testified that he asked
Mr. Simms to file an appeal both after receiving the jury‟s verdict
and soon after sentencing. Somewhat inconsistently, however, he
also stated that he thought Mr. Simms would automatically file an
appeal. His testimony is also unclear regarding when he learned that
his convictions had not been appealed. He suggested that he became
concerned about his appeal sometime during May 2007 after he
called the Salt Lake Legal Defender Association‟s office seeking to
talk to Mr. Simms about the appeal but was told that Mr. Simms did
not work at that office. But he also suggested that he first became
concerned about the status of his appeal approximately eight months
after sentencing, in September 2007.
¶13 Mr. Collins further testified that he had no knowledge of the
thirty-day deadline for filing an appeal. According to him, he only
became aware of the thirty-day deadline for filing an appeal in
approximately October 2008, after talking to another inmate. He
asserted that had he known of the deadline, he “would have been on
it right away, writing letters to whoever [he] had to or making phone
calls or whatever.” When asked specifically if he would have done
anything differently had he known of the thirty-day deadline,
Mr. Collins responded that he “would have contacted Mr. Simms
and made sure he filed [the] appeal like [he] thought [Mr. Simms]
did.”
¶14 When questioned on direct examination about why he
waited almost two years after his convictions to begin seeking
updates on the status of his appeal from the court, Mr. Collins
explained that he “heard that appeals take awhile” and “didn‟t know
. . . if it was still being processed or if it ever even got filed.” The
State cross-examined Mr. Collins regarding his claim that he
attempted to call the Salt Lake Legal Defender Association and
Mr. Simms multiple times to check on the status of his appeal. When
confronted with the fact that the prison‟s phone log did not show
that he ever attempted to call the Salt Lake Legal Defender
Association or Mr. Simms, Mr. Collins testified that he called from
another inmate‟s phone account but did not know the inmate‟s
name.
¶15 The trial court denied Mr. Collins‟s motion for reinstatement
and stated that it found Mr. Simms‟s testimony “to be more credible
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than [Mr.] Collins‟ testimony.”4 In assessing whether Mr. Collins was
denied his right to appeal, the court reasoned as follows:
In weighing the testimony of the witnesses, this Court
concludes that defendant‟s counsel did apprise
defendant of his right to appeal, though he did not
specifically tell defendant that he must do so within 30
days. Mr. Simms told the defendant to contact him
within 14 days if he wished to file an appeal, well
within the 30 day time period permitted. The Court
further concludes that the defendant did not diligently
attempt to appeal within the statutory time frame. The
Court is particularly considering the fact that
defendant‟s letter to the Court was sent more than two
years after the time of sentencing. The Court did not
properly apprise defendant of his right to appeal as
required by Rule 22(c)(1), Utah Rules of Criminal
Procedure. Although this Court should have done so,
that does not entitle him to have the appeal reinstated
because his attorney properly advised him of that right.
¶16 The court of appeals reversed the trial court, concluding
“that properly advising a defendant of his right to appeal includes
advising him of the time within which an appeal must be filed.”5
Because neither the trial court nor Mr. Collins‟s counsel informed
him of the thirty-day deadline, the court of appeals held that
Mr. Collins “has a valid claim for reinstatement of [the] right [to
appeal].”6 In so holding, the court rejected the State‟s argument that
it was Mr. Collins‟s burden to show “that but for his lack of

4 The trial court did not specify which parts of Mr. Collins‟s
testimony it found less credible than Mr. Simms‟s testimony.
Accordingly, there is no specific credibility finding concerning
Mr. Collins‟s statements that if he had known of the thirty-day
deadline, he “would have been on it right away, writing letters to
whoever I had to or making phone calls or whatever,” and “would
have contacted Mr. Simms and made sure he filed [the] appeal like
[he] thought [Mr. Simms] did.”
5 State v. Collins, 2013 UT App 42, ¶ 9, 298 P.3d 70.
6 Id. (internal quotation marks omitted).

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information he would have filed an appeal.”7 Instead, the court
stated as follows:
[W]e hold that a defendant who has not been properly
informed by either court or counsel of his appeal rights,
including the time within which the notice of appeal
must be filed, is entitled to reinstatement of the appeal
time under Manning. Such a defendant is not required
to show in addition that, had he been informed of his
rights, he would have appealed.8
¶17 The State petitioned this court for writ of certiorari, which
we granted. We have jurisdiction pursuant to Utah Code section
78A-3-102(3)(a).
Standard of Review
¶18 On certiorari, “we review the decision of the court of
appeals and not that of the trial court.”9 “[W]e review the decision of
the court of appeals for correctness” and “may affirm the court of
appeals‟ decision on any ground supported in the record.”10
Analysis
¶19 Mr. Collins‟s claim for reinstatement of his right to appeal
relies on the third of three scenarios in Manning v. State that we
identified as unconstitutional deprivations of a criminal defendant‟s
right to appeal—the scenario where “the court or the defendant‟s
attorney failed to properly advise defendant of the right to appeal.”11
The court of appeals held that Mr. Collins was entitled to
reinstatement of time for filing an appeal under this scenario and

7 Id. ¶ 13.
8 Id. ¶ 15.
9 American Fork City v. Pena-Flores, 2002 UT 131, ¶ 7, 63 P.3d 675
(internal quotation marks omitted).
10 Id. (internal quotation marks omitted).
11 2005 UT 61, ¶ 31, 122 P.3d 628. We note that in his argument
before the trial court, Mr. Collins also based his claim for
reinstatement on the ground that Mr. Simms failed to file an appeal
after being expressly told to do so. But Mr. Collins did not preserve a
challenge to the trial court‟s findings of fact on this point nor has he
raised this argument before us. See State v. Collins, 2013 UT App 42,
¶ 3 n.1, 298 P.3d 70. Accordingly, in this opinion we do not address
his claim for restatement on this basis.

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rejected the State‟s argument “that Manning error is subject to review
for harmless error or prejudice.”12
¶20 We reverse because the court of appeals erred in not
reviewing Mr. Collins‟s claim for reinstatement under a harmless
error analysis. Both Manning and rule 4(f) of the Utah Rules of
Appellate Procedure require that a defendant show that he has been
“deprived” of the right to appeal, which implicitly requires the
defendant to show that he would have appealed had he been
properly informed. Moreover, the general rule is that all errors are
reviewed for harmlessness, and Mr. Collins has not shown that a
court‟s failure to comply with rule 22(c)(1) of the Utah Rules of
Criminal Procedure falls within the structural error exception to this
general rule. Ultimately, we remand the case to the trial court to
determine whether Mr. Collins has shown by a preponderance of the
evidence that he would have appealed had he been properly
informed of his right to appeal.
I. To Have a Valid Claim for Reinstatement of the Right to Appeal
Under Scenario Three of Manning, a Criminal Defendant Must Show
by a Preponderance of the Evidence That He Was Not Properly
Advised of the Right to Appeal and That He Would Have Appealed
Had He Been Properly Informed
¶21 Under the Utah Constitution, criminal defendants have “the
right to appeal in all cases.”13 But to exercise this right, defendants
must properly invoke the appellate court‟s jurisdiction. “Appellate
courts do not enjoy unlimited power to review the actions of trial
courts” and “cannot conjure jurisdiction.”14
¶22 One procedural prerequisite to invoking appellate court
jurisdiction is the requirement that an aggrieved party file “a notice
of appeal with the clerk of the trial court.”15 This must be done
“within 30 days after the date of entry of the judgment or order
appealed from.”16 This deadline is “jurisdictional in nature,”

12 Collins, 2013 UT App 42, ¶ 10.
13 UTAH CONST. art. I, § 12.
14 State v. Lara, 2005 UT 70, ¶ 10, 124 P.3d 243.
15 UTAH R. APP. P. 3(a).
16 Id. 4(a).

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Opinion of the Court
meaning that an appellate court simply has no power to hear the
case if a notice of appeal is untimely.17
¶23 There is an exception for criminal defendants, however, to
the general rule that requires the timely filing of a notice of appeal.
In Manning v. State, we concluded that a criminal defendant‟s
constitutional entitlement to the right to appeal required that we
“provide a readily accessible and procedurally simple method by
which persons improperly denied their right to appeal can promptly
exercise this right.”18 We therefore held that “the trial or sentencing
court may reinstate the time frame for filing a direct appeal where
the defendant can prove . . . that he has been unconstitutionally
deprived, through no fault of his own, of his right to appeal.”19 We
further outlined three scenarios that would each constitute an
unconstitutional deprivation of the right to appeal:
(1) the defendant asked his or her attorney to file an
appeal but the attorney, after agreeing to file, failed to
do so; (2) the defendant diligently but futilely
attempted to appeal within the statutory time frame
without fault on defendant‟s part; (3) the court or the
defendant‟s attorney failed to properly advise
defendant of the right to appeal.20
A defendant must “demonstrate by a preponderance of evidence
that she qualifies for any of the exceptions listed above.”21
¶24 Manning has limits. Manning relief “is not available to a
defendant properly informed of his appellate rights who simply
let[s] the matter rest, and then claim[s] that he did not waive his
right to appeal.”22 Further, because criminal defendants bear the
burden to demonstrate they are entitled to Manning relief, we begin
with the presumption that “criminal defendants who fail to file a
[timely] notice of appeal . . . have knowingly and voluntarily waived
th[e] right [to appeal].”23 Thus, we concluded in Manning that “in the

17 Lara, 2005 UT 70, ¶ 11 (internal quotation marks omitted).
18 2005 UT 61, ¶ 26, 122 P.3d 628.
19 Id. ¶ 31.
20 Id. (citations omitted).
21 Id. ¶ 32 (internal quotation marks omitted).
22 Id. ¶ 33 (alterations in original) (internal quotation marks
omitted).
23 Id. ¶ 1.

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vast majority of cases where a defendant fails to comply with the
rule 4(a) thirty-day requirement for filing a timely appeal, . . . the
defendant will be held to have waived his right to appeal.”24
¶25 Here, Mr. Collins relies on the third Manning scenario,
alleging that he is entitled to reinstatement of his right to appeal
because neither the court nor his attorney properly advised him of
his right to appeal in that they did not inform him of the time
limitations for filing an appeal. Rule 22(c)(1) of the Utah Rules of
Criminal Procedure requires that “[f]ollowing imposition of
sentence, the court shall advise the defendant of defendant‟s right to
appeal and the time within which any appeal shall be filed.” But a
court‟s failure to fully comply with rule 22(c)(1) will not necessarily
result in a deprivation of the defendant‟s right to appeal because the
defendant‟s attorney may independently inform the defendant of the
right. To succeed on a claim of reinstatement, then, a defendant must
show that “neither the sentencing court nor [the defendant‟s]
attorney informed [the defendant] of his right to appeal.”25
¶26 In this case, the trial court failed to comply with rule 22(c)(1)
by not informing Mr. Collins of the thirty-day deadline for filing an
appeal. Mr. Collins‟s counsel, Mr. Simms, likewise failed to properly
advise Mr. Collins of the filing deadline.26 Moreover, the State has
not argued before us that being “properly informed” for purposes of
Manning and rule 4(f) is somehow different than being properly
instructed under rule 22(c)(1). We therefore assume for purposes of
this appeal that Mr. Collins was not “properly informed” because
the trial court did not comply with rule 22(c)(1) and Mr. Simms did
not independently inform Mr. Collins of the applicable deadline.
¶27 But the State argues that the fact that Mr. Collins was not
properly informed of his right of appeal does not end the matter.
According to the State, Mr. Collins must additionally show “that but
for not being informed of the 30-day deadline, he would have
changed his mind and filed a timely appeal.” The State argues that
reviewing reinstatement claims for harmless error is not a new

24 Id. ¶ 33.
25 Johnson v. State, 2006 UT 21, ¶ 26, 134 P.3d 1133.
26Although Mr. Simms told Mr. Collins that he had fourteen days
to change his mind regarding an appeal, he acknowledged that his
advice was not “necessarily correct.”

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Opinion of the Court
requirement, but instead “has been an integral, if implicit, part of the
reinstatement rationale from the beginning.”
¶28 We agree with the State for two reasons. First, both our
reinstatement caselaw and rule 4(f) of the Utah Rules of Appellate
Procedure require that a defendant show he has been “deprived” of
the right to appeal. And this deprivation requirement implicitly
recognizes that reinstatement is appropriate only where the
defendant can show that he would have appealed had he been
properly informed. In other words, as we stated in Manning, a
defendant must establish that something outside of his control
“prevented [him] in some meaningful way from proceeding.”27
Second, the general rule is that all errors are reviewed for
harmlessness. And the exception for structural errors is inapplicable
here because the court‟s failure to advise Mr. Collins of the time
limitations for filing an appeal as required by rule 22(c)(1) of the
Utah Rules of Criminal Procedure was not an error that “infect[ed]
the entire trial process.”28
¶29 As a result, we hold that a defendant seeking reinstatement
under Manning and rule 4(f) has the burden of showing by a
preponderance of the evidence that any error was prejudicial. This
means that defendants relying on the third Manning scenario must
show: (1) that neither the court nor counsel properly advised them of
their right to appeal, and (2) that “but for” this failure they would
have filed an appeal.
A. Both Manning and Rule 4(f) Require a Defendant to Show He was
“Deprived” of the Right to Appeal, Which Implicitly Requires Him
to Show That “But For” the Occurrence of an Error Affecting
His Right to Appeal, He Would Have Appealed
¶30 Both our reinstatement caselaw and rule 4(f) recognize that
reinstatement is only appropriate where a defendant is “deprived”
of the right to appeal. Implicit in this requirement is the recognition
that where a defendant would not have appealed anyway, there is
no deprivation of the right to appeal and any error affecting that
right would be harmless. Consequently, to show that any error was
not harmless, a defendant seeking reinstatement relief under the
third Manning scenario must show that had he been properly
advised, he would have appealed.

27 2005 UT 61, ¶ 26 (internal quotation marks omitted).
Neder v. United States, 527 U.S. 1, 8 (1999) (internal quotation
28

marks omitted).

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¶31 Manning illustrates this point. There we held that a
defendant must show by a preponderance of evidence that he was
“deprived, through no fault of his own, of his right to appeal.”29 Our
use of the term “deprived” was crucial because the word
encompasses a narrow range of situations where a defendant would
have appealed, but had that right “take[n] away” or was “kep[t]
from the possession, enjoyment, or use” of that right.30 Further, we
noted that reinstatement is appropriate only where a defendant is
“prevented in some meaningful way from proceeding.”31 Implicit in
these statements is the recognition that a defendant is not
“deprived” of the right to appeal or “prevented” from appealing
where the defendant would not have appealed regardless of any
error.
¶32 The specific scenarios we outlined in Manning as examples
of unconstitutional deprivations of the right to appeal are not
contrary to this general rule requiring a defendant to show that he
was “deprived” of the right to appeal. Indeed, there is an express
requirement that a defendant show some harm in the first two
scenarios. These scenarios include situations where “(1) the
defendant asked his or her attorney to file an appeal but the
attorney, after agreeing to file, failed to do so [and] (2) the defendant
diligently but futilely attempted to appeal within the statutory time
frame without fault on defendant‟s part.”32 In both scenarios, the
defendant takes affirmative steps to appeal and is ultimately harmed
because something outside of his control causes the failure to appeal.
¶33 The third scenario is somewhat different in that it does not
contain an express requirement of a showing of harm because it
concerns a situation where the defendant lacks knowledge of his
right to appeal and accordingly takes no action to vindicate that
right. But this lack of express language does not override the fact
that scenario three, like scenarios one and two, stems from the

29 2005 UT 61, ¶ 31 (emphasis added).
30 See WEBSTER‟S THIRD NEW INTERNATIONAL DICTIONARY 606
(2002) (defining “deprive” as “1 obs: to take away . . . 3: to keep from
the possession, enjoyment, or use of something”).
31 Manning, 2005 UT 61, ¶ 26 (emphasis added) (internal
quotation marks omitted).
32 Id. ¶ 31 (citation omitted).

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general rule requiring a defendant to show he was “deprived” of the
right to appeal.
¶34 We later addressed Manning scenario three in Johnson v.
State, and again implicitly recognized that claims for reinstatement
are subject to harmless error analysis.33 There we remanded a
defendant‟s case for a hearing on whether he had been denied his
right to appeal.34 In doing so, we noted that “nothing in the record
before us indicates whether [the defendant] was otherwise notified of
his right to appeal.”35 From this statement it follows that had the
defendant been “otherwise notified” of his right to appeal, we would
have concluded that the failure on the part of the court and counsel
to notify him was harmless.
¶35 Following our decision in Manning, we adopted rule 4(f) of
the Utah Rules of Appellate Procedure to implement our holding in
that case.36 Rule 4(f) requires “a showing that a criminal defendant
was deprived of the right to appeal.”37 It further provides that “[i]f the
trial court finds by a preponderance of the evidence that the
defendant has demonstrated that the defendant was deprived of the
right to appeal, it shall enter an order reinstating the time for
appeal.”38 Rule 4(f), like our reinstatement caselaw, focuses on
whether a defendant was “deprived” of the right to appeal, which,
again, implicitly recognizes that a defendant is not “deprived” of the
right to appeal where he would not have appealed regardless of any
error.
¶36 Our conclusion that harmless error analysis applies to
claims for reinstatement is in accord with the decisions of many
other courts. These decisions establish that there are two different
ways in which an error affecting the right to appeal is rendered
harmless.
¶37 First, many courts have applied harmless error review in
situations where the defendant possessed independent knowledge of

33 2006 UT 21, 134 P.3d 1133.
34 Id. ¶¶ 25–26.
35 Id. ¶ 26 (emphasis added).
36UTAH R. APP. P. 4 advisory committee‟s note (“Subsection (f)
was adopted to implement the holding and procedure outlined in
Manning v. State, 2005 UT 61, 122 P.3d 628.”).
37 UTAH R. APP. P. 4(f) (emphasis added).
38 Id. (emphasis added).

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the right to appeal or had in fact appealed.39 For instance, in Peguero
v. United States, the United States Supreme Court held that rule

39 See, e.g., Tanner v. State, 624 So. 2d 703, 706 (Ala. Crim. App.
1993) (“[B]ecause the appellant has in fact appealed his convictions
and has not suffered any prejudice whatsoever, the error in the
failure of the trial court to advise the appellant of his right to appeal
is harmless.”); Castro v. Superior Court, 115 Cal. Rptr. 312, 317 n.13
(Cal. Ct. App. 1974) (“Assuming that counsel was „ineffective‟ in
failing to inform defendant of his rights[,] no relief on that basis can
be granted unless defendant affirmatively alleges that by so
informing him counsel would have told him something he did not
already know.” (citation omitted)); People v. Boespflug, 107 P.3d 1118,
1121 (Colo. App. 2004) (holding that the “trial court should conduct
an evidentiary hearing to determine whether the defendant was
prejudiced”); Wakily v. State, 483 S.E.2d 313, 318 (Ga. Ct. App. 1997)
(concluding that any error in failing to advise defendant of his
appellate rights was harmless because “[i]mmediately after
sentencing, appointed trial counsel informed the court that [the
defendant] desired to appeal” and “[t]he court immediately
appointed appellate counsel”); People v. Crump, 801 N.E.2d 1, 5–6 (Ill.
App. Ct. 2003) (holding that a defendant waived his right to a direct
appeal where he “was substantially advised of his appeal rights,”
including the fact that the defendant had thirty days to file an
appeal); State v. Dafoe, 463 A.2d 770, 773 (Me. 1983) (holding that the
defendant was not prejudiced because “he was . . . permitted to
perfect [a] direct appeal[]”); People v. Grant, No. 237899, 2003 WL
21108468, at *4 (Mich. Ct. App. May 15, 2003) (per curiam) (holding
that a court‟s failure to properly advise a defendant regarding the
defendant‟s appellate rights was harmless because “defendant has
already appealed his sentence”); Novak v. State, 787 S.W.2d 791, 794
(Mo. Ct. App. 1990) (holding that a defendant is not prejudiced by a
trial court‟s failure to inform him of his right to appeal “if the
defendant knows of his right to appeal his conviction”); Wilson v.
State, 833 N.W.2d 492, 498 (N.D. 2013) (holding that a defendant was
not prejudiced by a trial court‟s failure to inform him of his right to
appeal because the defendant “had independent knowledge of his
right to appeal”); State v. Fox, No. 11AP-106, 2011 WL 2201666, at *1
(Ohio Ct. App. June 7, 2011) (holding that a defendant was not
harmed by a trial court‟s failure to mention the right to appeal since
the appeal would have had no practical effect on the outcome); White
v. State, 208 S.E.2d 35, 40 (S.C. 1974) (holding “that there was no
reversible error in the trial and that there was not an arguably
(continued)
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32(a)(2) of the Federal Rules of Criminal Procedure, requiring the
court to advise a defendant who has pled not guilty of his right to
appeal, is subject to harmless error analysis.40 And the Court
concluded that the defendant in that case was not prejudiced by the
trial court‟s error in not advising him of his right to appeal since he
already possessed independent knowledge of that right.41
¶38 Second, several courts have concluded that an error
affecting the right to appeal is rendered harmless where the
defendant would not have appealed regardless of the error.42 For
instance, in Roe v. Flores-Ortega,43 the United States Supreme Court
applied the same “but for” test that we apply in this case to a claim
by a defendant that her attorney rendered ineffective assistance of
counsel by failing to file a notice of appeal after promising to do so.
The Court stated that a defendant would not be entitled to relief “[i]f
the defendant cannot demonstrate that, but for counsel‟s deficient

meritorious ground of appeal, even if notice of intention to appeal
had been timely served”); Hauck v. State, 162 P.3d 512, 515 (Wyo.
2007) (concluding that the defendant was denied his right to appeal
and noting that “[t]he record does not otherwise reflect that [he]
knew of his right to appeal and the process involved to effectuate
that right”).
40 526 U.S. 23, 26–30 (1999). We note that former rule 32(a)(2) has
since been replaced by rule 32(j)(1) of the Federal Rules of Criminal
Procedure.
41 Id. at 29–30.
42 See, e.g., Shelton v. Comm’r of Corr., 977 A.2d 714, 721–22 (Conn.
App. Ct. 2009) (holding that to establish prejudice a “defendant must
demonstrate that there is a reasonable probability that, but for
counsel‟s deficient failure to consult with him about an appeal, he
would have timely appealed” (internal quotation marks omitted));
State v. Patton, 195 P.3d 753, 767 (Kan. 2008) (requiring a defendant to
“prove that, had he or she been properly informed, a timely appeal
would have been sought”); Commonwealth v. Markowitz, 32 A.3d 706,
716 (Pa. Super. Ct. 2011) (“Where counsel has not advised his client
about the client‟s appellate rights, the question becomes whether that
failure caused actual prejudice to the petitioner, i.e., but for counsel‟s
deficient failure to consult with him about an appeal, he would have
timely appealed.” (internal quotation marks omitted)).
43 528 U.S. 470 (2000).

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Opinion of the Court

performance, he would have appealed.”44 It further noted that
without this showing, “counsel‟s deficient performance has not
deprived him of anything, and he is not entitled to relief.”45 The Court
continued that “to show prejudice . . . a defendant must demonstrate
that there is a reasonable probability that, but for counsel‟s deficient
failure to consult with him about an appeal, he would have timely
appealed.”46
¶39 Moreover, the Supreme Court of Kansas has adopted the
“but for” causation test pressed by the State in this case. This is
particularly relevant because in Manning, we adopted Kansas‟
approach for assessing reinstatement claims.47 In State v. Patton, the
Kansas Supreme Court held that
[i]f the sentencing hearing transcript demonstrates that
the district judge did not adequately inform the
defendant orally, and the State is unable to demonstrate
that the defendant had actual knowledge of the
required information from some other source, the
defendant must then prove that, had he or she been
properly informed, a timely appeal would have been
sought.48
The Kansas rule requires a defendant to show both that he was not
properly informed regarding his right to appeal and that but for this
lack of information he would have appealed. The court noted that its
holding was supported by two main rationales. First, it stated that
this causation requirement “is consistent with this court‟s original
admonition that a defendant may not let the matter rest.”49 And
second, the court stated that “we believe [the causation requirement]
is true to United States Supreme Court precedent [in Peguero v.
United States].”50

44 Id. at 484 (emphasis added).
45 Id. (emphasis added).
46 Id. (emphasis added).
47 2005 UT 61, ¶ 29.
48 195 P.3d at 767.
49 Id. (internal quotation marks omitted).
50 Id.

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 STATE v. COLLINS
Opinion of the Court
¶40 We find the Kansas Supreme Court‟s approach in Patton
persuasive. It ensures that reinstatement relief is given only to those
defendants who fail to appeal “through no fault of their own.”51
And it is in accord with the position taken by the Supreme Court in
Peguero and Flores-Ortega, as well as a majority of the states, that
reinstatement claims should be reviewed for harmless error.
¶41 In the case before us, the court of appeals concluded that the
state and federal cases subjecting claims for reinstatement to
harmless error review were inapposite because “the large majority of
. . . cases [that utilized the harmless error analysis did] so because,
unlike [Mr.] Collins, the defendant either appealed anyway or
learned of those rights from another source.”52 While neither of those
fact patterns occurred here, the point remains that those courts did
apply a harmless error analysis to a claim for reinstatement. And the
fact pattern now before us has been addressed by several courts,
including the United States Supreme Court, and they have also
applied harmless error analysis by requiring defendants to show that
had they been properly informed of their right to appeal they would
have appealed.
¶42 Moreover, the cases applying harmless error analysis do so
because “as a general rule, . . . a court‟s failure to give a defendant
advice required by the [rules] is a sufficient basis for . . . relief only
when the defendant is prejudiced by the court‟s error.”53 A mere
“technical violation of [a] [r]ule [is] insufficient to justify . . . relief”
without a showing of prejudice.54 And, as we noted in Manning,
reinstatement is appropriate only where a defendant is “prevented in
some meaningful way from proceeding” with an appeal.55 So the
mere fact that a majority of the cases applying harmless error
analysis involved scenarios where the defendant had independent
knowledge of the right to appeal or had actually appealed does not
preclude application of the analysis to a scenario where a defendant
was not properly informed of his right to appeal, but would not have
appealed anyway. A defendant who actually files an appeal or has
independent knowledge of the right to appeal, including the relevant

51 Manning, 2005 UT 61, ¶ 42.
52 State v. Collins, 2013 UT App 42, ¶ 11, 298 P.3d 70.
53 Peguero, 526 U.S. at 27.
54 Id. at 28 (internal quotation marks omitted).
55 Manning, 2005 UT 61, ¶ 26 (emphasis added) (internal
quotation marks omitted).

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Opinion of the Court

filing deadline, has not been prevented from proceeding with an
appeal and suffers no harm. Similarly, a defendant who had no
intention of appealing has not been prevented from proceeding with
an appeal and has also suffered no harm.
¶43 In sum, Manning provides that reinstatement relief is
appropriate only where a defendant establishes that he was
“deprived” of the right to appeal. Rule 4(f) contains the same
requirement. Implicit in this requirement is the recognition that a
defendant who would not have appealed even if properly advised of
his right to appeal should not be entitled to reinstatement relief.
B. Application of Harmless Error Analysis Here Conforms to Our
General Approach of Reviewing Errors for Harmlessness
¶44 Moreover, applying harmless error analysis is the general
rule, not the exception.56 A harmless error is one “that is sufficiently
inconsequential that there is no reasonable likelihood that it affected
the outcome of the proceedings.”57 We conclude that the general rule
governs here because neither the exception for structural errors nor
the approach we took in State v. Alexander58 applies here.
1. The Exception for Structural Errors is Inapplicable Here
¶45 Structural errors are not subject to harmless error analysis.
But the class of errors constituting structural error is narrow. Indeed,
“[s]tructural error is reserved for a „very limited class of cases‟ in
which a constitutional error so undermines the fairness of the
proceedings that prejudice must be presumed.”59

56 UTAH R. CRIM. P. 30(a) (“Any error, defect, irregularity or
variance which does not affect the substantial rights of a party shall
be disregarded.”); see State v. Neeley, 748 P.2d 1091, 1095 (Utah 1988)
(“We do not presume prejudice upon a showing of an irregularity in
the proceedings below; rather, we will closely examine the record to
determine the effect the error may have had on the outcome of the
proceedings.”).
57H.U.F. v. W.P.W., 2009 UT 10, ¶ 44, 203 P.3d 943 (internal
quotation marks omitted).
58 2012 UT 27, 279 P.3d 371.
59 State v. Arguelles, 2003 UT 1, ¶ 94 n.23, 63 P.3d 731 (quoting
Johnson v. United States, 520 U.S. 461, 468–69 (1997)).

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Opinion of the Court
¶46 Structural errors differ from other errors in that they
“affect[] the framework within which the trial proceeds”60 by
“infect[ing] the entire trial process” and “render[ing] [the] trial
fundamentally unfair.”61 An error is not structural where it is
“simply an error in the trial process itself.”62 Among the errors that
are deemed structural are: (1) a complete denial of right to counsel,
(2) the lack of an impartial trial judge, (3) racial discrimination in
grand jury selection, (4) denial of the right of self-representation at
trial, (5) denial of the right to a public trial, and (6) an erroneous
reasonable-doubt instruction.63
¶47 The trial court‟s failure to properly inform Mr. Collins of his
right to appeal in accordance with Utah Rule of Criminal Procedure
22(c)(1) does not constitute a structural error. Although not
informing Mr. Collins of the relevant thirty-day deadline was error,
the error did not “infect the entire trial process” rendering the “trial
fundamentally unfair.” Indeed, Mr. Collins‟s lack of notice regarding
the relevant appeals deadline had no effect whatsoever on the
“framework” of the trial proceedings, nor does it fit into the class of
errors previously defined by the Supreme Court as structural errors.
¶48 Mr. Collins argues that Rodriquez v. United States64 and
Penson v. Ohio65 stand for the proposition that the failure by counsel
to advise a defendant of the right to appeal is equivalent to the
complete denial of counsel. But this argument is misplaced. In
Rodriquez, the Supreme Court clarified that a defendant seeking
reinstatement of the right to appeal need not show “some likelihood
of success on appeal.”66 But the Court did not hold, as Mr. Collins
suggests, that claims for reinstatement are not subject to harmless
error review. In fact, a defendant‟s burden to establish prejudice
with respect to such claims is much lower than showing “some
likelihood of success on appeal.” To establish prejudice, all a
defendant must show is that he would have appealed “but for” the

60 Johnson, 520 U.S. at 468 (internal quotation marks omitted).
61 Neder, 527 U.S. at 8 (internal quotation marks omitted).
62 Id. (internal quotation marks omitted).
63 Johnson, 520 U.S. at 469.
64 395 U.S. 327 (1969).
65 488 U.S. 75 (1988).
66 395 U.S. at 330.

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court‟s and his attorney‟s failure to properly inform him of the right
to appeal.
¶49 Penson is also distinguishable. There a defendant requested
that his attorney file an appeal.67 The attorney did so but also sought
withdrawal from the case because he believed the appeal was
meritless.68 The appeals court allowed counsel to withdraw but then
rejected defendant‟s motion to have new counsel appointed.69
Instead, the court conducted its own review of the record and
ultimately affirmed all but one of the defendant‟s convictions. The
Supreme Court concluded that it was “inappropriate to apply either
the prejudice requirement of Strickland or . . . harmless-error
analysis” because the defendant was “entirely without the assistance
of counsel on appeal.”70 Here, Mr. Collins argues only that his
counsel did not properly advise him regarding the relevant appeals
deadline. He was not, like the defendant in Penson, entirely denied
the right to counsel.
¶50 Ultimately, the failure to properly inform Mr. Collins of the
relevant thirty-day deadline to appeal does not fall within the class
of structural errors because it did not “infect the entire trial process”
rendering the “trial fundamentally unfair.” And because the error
was not structural, we apply the general rule that errors must be
reviewed for harmlessness.
2. Our Approach in State v. Alexander is Inapplicable Here
¶51 The court of appeals also concluded that claims for
reinstatement are not subject to harmless error review under the
approach we took in State v. Alexander.71 In that case, we held that a
defendant seeking to withdraw a plea on the basis that it was not
knowing and voluntary need not show prejudice.72 The court of
appeals concluded that Alexander applied here because the “holding
rests in part on the difficulty of evaluating whether an uninformed

67 Penson, 488 U.S. at 77.
68 Id. at 78.
69 Id.
70 Id. 88–89.
71 2012 UT 27.
72 Id. ¶ 49.

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Opinion of the Court
defendant would, had he or she been informed, nevertheless have
pleaded guilty.”73
¶52 But this practical difficulty was only one of three rationales
for our holding in Alexander. In fact, the first two reasons we
provided for declining to require a showing of prejudice where a
defendant seeks withdrawal of a plea related to the language and
intent of the rule and statute at issue in that case. Specifically, we
noted first that “a showing of prejudice conflicts with our intent
when adopting the language of rule 11(l).”74 And second, we noted
that “the Legislature has not required a showing of prejudice. . . .
[But instead] provided that defendants need show only that their
pleas were not knowingly and voluntarily made.”75
¶53 Neither of those rationales is applicable here. As to the first
rationale, the language of our opinion in Manning and rule 4(f) of the
Utah Rules of Appellate Procedure implicitly requires, by use of
words such as “deprived,” a showing of prejudice by the defendant.
So whereas in Alexander requiring a showing of prejudice conflicted
with the language of the applicable rule, rule 11(l) of the Utah Rules
of Criminal Procedure, here a showing of prejudice is mandated by
rule 4(f) of the Utah Rules of Appellate Procedure and our Manning
decision. And as to the second rationale, it is inapplicable here given
that the Legislature has not enacted a statute governing claims for
reinstatement. So even if we assume that the task of determining
whether a defendant would have appealed had he been properly
informed of the right to appeal will present the same practical
difficulties we identified in Alexander, these difficulties do not
override the fact that the governing caselaw and rule requires that a
defendant make a showing of harm.
II. We Remand for the Trial Court to Consider Whether Mr. Collins
Has Met His Burden of Showing That Had He Been Properly
Advised of His Right to Appeal, He Would Have Appealed
¶54 Having concluded that Mr. Collins must show that he
would have appealed had he been properly informed of his right to
appeal, we now turn to a discussion of whether he has satisfied his
burden.

73 Collins, 2013 UT App 42, ¶ 14.
74 Alexander, 2012 UT 27, ¶ 46.
75 Id. ¶ 47.

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Opinion of the Court

¶55 The State argues that Mr. Collins has never claimed that the
trial court‟s and counsel‟s failure to properly inform him of his right
to appeal caused him not to appeal. Instead, the State suggests that
Mr. Collins has “consistently claimed that Simms caused him not to
appeal by failing to file an appeal when [Mr. Collins] timely asked
him to.”
¶56 The State‟s characterization of Mr. Collins‟s claim is not
entirely accurate. In fact, Mr. Collins did testify that he would have
acted differently had either the court or Mr. Simms informed him of
the thirty-day deadline. He first asserted that had he known of the
deadline, he “would have been on it right away, writing letters to
whoever I had to or making phone calls or whatever.” And when
asked specifically if he would have done anything differently had he
known of the thirty-day deadline, he testified that had he “would
have contacted Mr. Simms and made sure he filed [the] appeal like
[he] thought [Mr. Simms] did.”
¶57 But it is unclear from the record whether the trial court
found any of these statements to be credible. The court did find that
Mr. Simms‟s testimony was more credible than Mr. Collins‟s
testimony. But the only point on which both Mr. Collins and
Mr. Simms testified concerned whether Mr. Collins affirmatively
told Mr. Simms to file an appeal. Mr. Simms‟s testimony did not
directly address what Mr. Collins might have done had he known of
the thirty-day deadline for filing an appeal. And the court did not
make a specific credibility finding with respect to Mr. Collins‟s
testimony concerning the thirty-day deadline. Because of this
ambiguity, we are unable to determine whether Mr. Collins met his
burden of showing that the court‟s and counsel‟s failure to properly
inform him of his right to appeal caused him to not appeal.
Accordingly, we remand the case to the trial court to determine
whether Mr. Collins has met this burden, which it can do by holding
further hearings on the issue or relying on the existing record.
Conclusion
¶58 We reverse the court of appeals‟ decision because the court
erred by not reviewing Mr. Collins‟s claim for harmless error. Both
Manning and rule 4(f) of the Utah Rules of Appellate Procedure
require that a defendant show he was “deprived” of the right to
appeal, and so implicitly require a defendant to show that any error
affecting his right to appeal caused some harm. Accordingly, we
remand this case to the trial court to determine whether Mr. Collins
can show by a preponderance of the evidence that the court‟s and

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Opinion of the Court

counsel‟s failure to properly inform him caused him not to appeal,
which it can do by holding further hearings on the issue or relying
on the existing record.

ASSOCIATE CHIEF JUSTICE NEHRING, dissenting:
¶60 I respectfully dissent. Mr. Collins possessed a right to
appeal, protected by the Utah Constitution. The majority reasons
that if a defendant claims to have been deprived of his right to
appeal, he must demonstrate that he would have appealed had he
been properly advised of his appeal rights. I am baffled how a
defendant could make the showing necessary to overcome a claim of
harmlessness when he did not even know of his right to appeal. A
decision to commence or forgo an appeal involves a multitude of
considerations. Knowledge of the existence of a right of appeal is, by
far, the most important of these considerations. A defendant who
does not know he has a right of appeal cannot be penalized for
failing to exercise it. Accordingly, I would affirm the court of
appeals.

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