State v. Stewart

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

2019 UT 39

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,
Petitioner,
v.
CALVIN PAUL STEWART,
Respondent.

No. 20180847
Filed August 1, 2019

On Certiorari to the Utah Court of Appeals

Fourth District, Utah County
The Honorable Lynn W. Davis
No. 011403597

Attorneys:
Sean D. Reyes, Att’y Gen., Jeffrey D. Mann, Asst. Sol. Gen.,
Salt Lake City, Kelsy B. Young, Provo, for petitioner
Douglas J. Thompson, Margaret P. Lindsay, Provo, for respondent

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE,
and JUSTICE PETERSEN joined.

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶1 Calvin Stewart was charged with multiple counts of
securities fraud in 2001. He was unrepresented at trial and was
convicted on all counts. After sentencing, Stewart filed pro se a notice
of appeal and a docketing statement. But he failed to submit a brief
by the filing deadline. And the court of appeals dismissed his appeal
on that basis.
¶2 Twelve years later Stewart filed a motion to reinstate his
time to appeal under rule 4(f) of the Utah Rules of Appellate
Procedure. In filing this motion Stewart asserted that he was
 STATE v. STEWART
Opinion of the Court

deprived of his right to appeal when the sentencing court failed to
inform him of his right to counsel on appeal in his sentencing
hearing in 2003. The district court denied Stewart’s motion. Stewart
appealed. And the court of appeals reversed.
¶3 We now reverse the decision of the court of appeals.
Criminal defendants seeking to reinstate the time to appeal under
rule 4(f) bear the burden of proving that they were deprived of the
right to appeal through no fault of their own. And Stewart has not
satisfied this standard here. His appeal was dismissed because he
failed to follow the briefing schedule provided by the court of
appeals.
¶4 Stewart claims that he would have requested an attorney if
he had been informed of his right to appellate counsel. And he
asserts that his attorney would have preserved his appeal by filing a
brief. Stewart thus contends that the sentencing court deprived him
of his right to appeal. We disagree. The sentencing court may have
failed to inform Stewart of his right to appellate counsel. And a
colloquy about this right may have been a best practice at the time.
But the court was under no legal obligation to inform Stewart of his
right to appellate counsel. And because the court had no legal
obligation to inform Stewart of his right to appellate counsel, it was
not at fault for the dismissal of his direct appeal. The fault rests with
Stewart. So relief under rule 4(f) is not warranted. We reverse the
decision of the court of appeals on this basis.
I
¶5 In 2001 the State charged Stewart with multiple violations of
securities laws. He was initially represented by private counsel. But
that counsel withdrew before trial because Stewart could not afford
to pay him. The court appointed Stewart a public defender. Stewart
became dissatisfied with his attorney’s performance and asked to
represent himself. The trial court granted Stewart’s request and
allowed him to proceed pro se. It did so after “fully advis[ing]”
Stewart of his right to counsel, informing him that he would “be held
to the same standard” as if represented by counsel, and telling
Stewart that if he “chang[ed] his mind and wishe[d] to have counsel
represent him at trial he must” inform the court “by May 1st.”
Stewart did not change his mind. And at trial he was convicted on all
counts.
¶6 Stewart filed pro se a notice of appeal and a docketing
statement. But he failed to file a brief in accordance with the court of

2
 Cite as: 2019 UT 39
Opinion of the Court

appeals’ briefing schedule. So the court of appeals dismissed his
appeal.
¶7 Twelve years passed, during which time Stewart filed a
variety of motions—each of which was dismissed. Then in 2015,
Stewart filed pro se a motion to reinstate the time to file an appeal
pursuant to rule 4(f) of the Utah Rules of Appellate Procedure. That
rule states 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.” UTAH R. APP. P. 4(f). Stewart also filed a motion
to appoint counsel. The district court appointed a public defender to
assist Stewart with his rule 4(f) motion and scheduled an evidentiary
hearing.
¶8 At that hearing Stewart asserted that the sentencing court
had not informed him of his right to counsel on appeal. And because
he was not informed of that right, Stewart argued that he had been
unconstitutionally deprived of his right to appeal. Stewart further
testified that when the trial court informed him of the need to decide
whether he wanted counsel by a specific, pretrial date, he believed
that the court was saying that he would no longer have a right to an
attorney on appeal.
¶9 The State argued that reinstatement of the time to appeal
should be afforded only where a defendant is prevented from filing
a timely notice of appeal. See State v. Rees, 2005 UT 69, ¶ 18, 125 P.3d
874. And Stewart filed a notice of appeal. So, according to the State,
Stewart was not entitled to relief under rule 4(f). The State also
challenged Stewart’s memory about whether the sentencing court
had informed him of his right to appellate counsel. On
cross-examination Stewart admitted that his memory of what was
said at sentencing was incomplete—“there’s some things I
remember, some things I don’t.” But he could recall without
qualification that the sentencing judge failed to inform him of his
right to counsel on appeal. Stewart claimed that there were certain
things the judge said at sentencing that he wanted to remember and
that he wrote these things down in a notebook. And nothing in his
notebook indicated that the sentencing judge informed him of his
right to counsel on appeal.
¶10 The district court denied Stewart’s motion. It did so for three
reasons. First, Stewart’s “request[] to represent himself” and “his
choice to proceed in his appeal pro se” constituted a “constructive
waiver of his right to an attorney on appeal.” Second, Stewart’s
motion failed on the merits because his own failure to respond to the

3
 STATE v. STEWART
Opinion of the Court

briefing deadline caused his appeal to be dismissed. And third,
Stewart’s self-serving testimony amounted to a “mere claim” and
thus did not meet rule 4(f)’s preponderance standard. Stewart
appealed the district court’s decision.
¶11 The court of appeals reversed. It held that Stewart’s right to
appeal includes being informed of the right to counsel on appeal.
State v. Stewart, 2018 UT App 151, ¶¶ 11–14, 436 P.3d 129. And
because Stewart was not informed of his right to counsel on appeal,
he was “prevented in some meaningful way from proceeding with
[his] first appeal of right.” Id. ¶¶ 11, 24 (citation omitted) (internal
quotation marks omitted). The court of appeals further held that the
district court erred when it found that “there was insufficient
evidence that Stewart had not been deprived of the right to appeal.”
Id. ¶ 19. The court acknowledged that the district court’s factual
findings were entitled to deference, stating it “will ‘not overturn
them unless they are clearly erroneous.’” Id. ¶ 20 (quoting State v.
Kabor, 2013 UT App 12, ¶ 8, 295 P.3d 193). But it then determined
that the district court clearly erred. Id. ¶ 22. In the court of appeals’
view, Stewart’s “uncontroverted testimony” satisfied his burden of
demonstrating by a preponderance of the evidence that he was not
informed of the right to counsel on appeal and that he was thus
unconstitutionally deprived of the right to appeal. Id. The court
ordered the district court to reinstate the period for Stewart to file a
direct appeal. Id. ¶ 24. The State then petitioned for a writ of
certiorari, which we granted.
II
¶12 The State contends that the court of appeals erred in
concluding that rule 4(f) permits reinstatement of the time to appeal
on the basis of a sentencing court’s failure to inform an
unrepresented defendant of his right to counsel on appeal. The State
also claims that the court of appeals erred when it reversed the
district court’s determination that Stewart failed to prove that he was
not informed of his right to counsel on appeal. We agree with the
State’s first claim of error. And we reverse on that basis. Our
holding, however, is limited to the facts of this case and the
procedural rules that existed at the time of Stewart’s sentencing. In
2003, the sentencing court had no legal obligation to inform Stewart
of his right to appellate counsel.1 It may have been a best practice for

1Sentencing courts’ disclosure duties were expanded in 2018,
when we amended rule 22 of the Utah Rules of Criminal Procedure
(continued . . .)
4
 Cite as: 2019 UT 39
Opinion of the Court

the court to do so. But nothing in our rules of procedure, our case
law, or United States Supreme Court precedent mandated that such
notice be provided. For this reason we cannot fault the sentencing
court for this alleged shortcoming.
¶13 Relief under rule 4(f) is premised on a showing that the
defendant was unconstitutionally deprived, through no fault of his
own, of the right to appeal. See Manning v. State, 2005 UT 61, ¶ 31,
122 P.3d 628. This standard is not met here. Stewart’s appeal was
dismissed because he failed to follow the briefing schedule provided
by the court of appeals. He accordingly is not entitled to
reinstatement of the time to appeal.
¶14 We set forth the basis for this conclusion below. But we first
consider two other grounds for reversal advanced by the State:
(1) that our precedent forecloses rule 4(f) relief to a defendant who
files a timely notice of appeal, and (2) that Stewart did not meet his
burden of proving by a preponderance of the evidence that he was
denied the right to appeal. We see some facial plausibility in the first
ground but decline to resolve the case on that basis. We reject the
second ground. But we reverse on the basis of the language of
rule 4(f). We emphasize that this rule requires us to ask whether a
criminal defendant was deprived of his right to appeal through no
fault of his own. And we reverse on the ground that there was no
“fault” on the part of the sentencing court or anyone else that caused
the dismissal of Stewart’s appeal; the appeal was dismissed because
Stewart failed to file a timely brief.
A
¶15 Criminal defendants seeking reinstatement of the time to
appeal must show that they were “deprived of the right to appeal.”
UTAH R. APP. P. 4(f). The State asserts that our precedent draws a
clear line on the question of what it means to be “deprived” of this
right. In the State’s view, criminal defendants who are afforded an
opportunity to file a notice of appeal have not been “deprived of the
right to appeal.” And because Stewart was allowed to file a notice of
appeal, relief under rule 4(f) is not available here in the State’s view.
¶16 The State’s position is rooted in our precedent. The State
views Manning v. State, 2005 UT 61, 122 P.3d 628, and State v. Rees,
2005 UT 69, 125 P.3d 874, as limiting the right of reinstatement of an

to include a requirement that a sentencing judge provide notice of
the right to counsel on appeal. UTAH R. CRIM. P. 22(c)(1) (2018).

5
 STATE v. STEWART
Opinion of the Court

appeal to defendants who are prevented from filing a timely notice
of appeal. While Manning does not draw so clear a line, Rees
arguably does.
¶17 In Manning we were asked to decide what procedures a
defendant must follow to restore a denied right to appeal. 2005 UT
61, ¶ 11. We held that “upon a defendant’s motion, the trial or
sentencing court may reinstate the time frame for filing a direct
appeal where the defendant can prove, based on facts in the record
or determined through additional evidentiary hearings, that he has
been unconstitutionally deprived, through no fault of his own, of his
right to appeal.” Id. ¶ 31. We also identified some circumstances in
which a defendant could make this showing.2 Those examples,
however, do not speak to the situation here—a case in which a
defendant files a notice of appeal but fails to file a brief. Nor do they
identify the point at which a defendant can be said to have been
deprived of his constitutional “right to appeal.”
¶18 Rees, however, appears to speak to this issue. There we
explained that only those defendants who have “been prevented in
some meaningful way from proceeding with [an] appeal[]” can
secure reinstatement of the time to appeal. Rees, 2005 UT 69, ¶ 17
(second alteration in original) (citation omitted). And we construed
“the act of ‘proceeding’ with an appeal to encompass filing a notice
of appeal, not more.” Id. ¶ 18. “Defendants who gain entry to
appellate courts and have their appeals concluded either by a ruling
on the merits or involuntary dismissal have exhausted their remedy
of direct appeal and are thereby drawn into the ambit of the PCRA.”
Id.
¶19 This language from Rees may seem sufficient to resolve this
case. It is undisputed, after all, that Stewart filed his notice of appeal.
And we stated in Rees that defendants are deprived of the right to
appeal only when they are prevented from “filing a notice of
appeal.” Id. Stewart availed himself of that right. So if the right to an

2 Manning v. State, 2005 UT 61, ¶31, 122 P.3d 628 (“[T]he
defendant asked his or her attorney to file an appeal but the
attorney, after agreeing to file, failed to do so; . . . the defendant
diligently but futilely attempted to appeal within the statutory time
frame without fault on defendant’s part; or . . . the court or the
defendant’s attorney failed to properly advise defendant of the right
to appeal.” (citations omitted)).

6
 Cite as: 2019 UT 39
Opinion of the Court

appeal encompasses only the right to file a notice of appeal, and
nothing more, then Stewart cannot be said to have been deprived of
this right.
¶20 We stop short of resolving this case on this basis, however.
The fact-pattern presented in this case raises difficult problems that
have not yet been addressed in our case law. Our Rees opinion
speaks in broad terms—limiting the right to appeal only to the right
to file a notice of appeal. But in Rees we were not asked to decide the
question presented here. In Rees the defendant was represented by
counsel and that counsel filed a brief on appeal. The problem in Rees
was therefore quite different from the one we face here. The
deficiency of the appeal in Rees was not in the outright failure to file
a brief; it was in the failure to provide the court of appeals with a
complete record. Id. ¶¶ 2–3. In that circumstance, it is entirely
appropriate to conclude that the defendant was not deprived
outright of his right to appeal. His appeal proceeded to a decision by
the appellate court. And the defendant came out on the losing end
due to a misstep of counsel in the briefing. This is an unfortunate
outcome for the defendant. But Rees is not the sort of case where we
would say that the defendant was deprived of a right to an appeal.
¶21 The case presented to us here is at least arguably different.
Where no brief is ever filed on appeal it would be much harder to
say that the defendant was not deprived of his right to an appeal.
Consider a hypothetical in which a defendant is represented by
counsel at all stages. If counsel assures his client that he will file an
appeal and he files the notice of appeal but no brief, would we say
that the defendant was not deprived of his right to an appeal
because the notice of appeal was filed? The language of our Rees
opinion suggests as much. But again, in Rees we were not confronted
with this more difficult fact-pattern. It is at least conceivable that the
right answer to this question is that Rees did not decide this question,
and that its sweeping dicta should be curtailed. See State v. Stewart,
2018 UT App 151, ¶ 10 n.1, 436 P.3d 129 (“Rees did not contemplate a
situation in which a defendant was denied the right to appeal by
being denied the right to counsel.”).
¶22 We promulgated appellate rule 4(f) in the wake of the
Manning decision. And there may be an argument that the terms of
our rule incorporate the standards set forth in the case law. See
GeoMetWatch Corp. v. Utah State Univ. Research Found., 2018 UT 50,
¶ 16, 428 P.3d 1064 (“[W]hen a word or phrase is transplanted from
another legal source, whether the common law or other legislation, it
brings the old soil with it.” (alteration in original) (citation omitted)

7
 STATE v. STEWART
Opinion of the Court

(internal quotation marks omitted)); ANTONIN SCALIA & BRYAN A.
GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 320–21
(2012) (“A statute that uses a common-law term, without defining it,
adopts its common-law meaning.”). Yet that still begs the key
question. Rule 4(f) may incorporate the standards set forth in our
case law. But our cases have never decided whether the dicta in Rees
sweeps broadly enough to cover the fact-pattern at issue here.
¶23 We therefore decline to resolve this question here, as it is
unclear whether Rees should be read to sweep as broadly as the State
suggests, and there is an alternative ground for reversal (set forth in
Part II.C below).
B
¶24 The State advances a second basis for a ruling in its favor. It
asserts that Stewart failed to carry his burden of persuasion in the
district court—his burden of establishing that the sentencing court
failed to inform him of his right to appellate counsel at the
underlying sentencing hearing. And it faults the court of appeals for
its failure to attribute to the district court “implied” findings
consistent with its decision, and for its alleged entry of its own
“findings” on appeal.
¶25 The district court made few, if any, express factual findings
in support of its determination that Stewart failed to carry his
burden of proof. It made no finding as to whether Stewart’s
testimony was credible or reliable. And in the absence of such
findings, the court of appeals concluded that Stewart had carried his
burden of proof by presenting “uncontroverted testimony” as to
what was disclosed in the underlying sentencing proceeding. State v.
Stewart, 2018 UT App 151, ¶ 22, 436 P.3d 129.
¶26 The State challenges the court of appeals’ approach on two
grounds. First it asserts that the court of appeals should have
assumed that the district court found Stewart’s testimony to be
lacking in credibility because such a finding is both consistent with
the district court’s decision and reasonable in light of the evidence in
the record. And it contends that such a finding should have been
afforded substantial deference on appeal. The State’s second
argument is advanced in the alternative. To the extent further
findings were needed, the State insists that a remand was necessary.
The State faults the court of appeals for, in the State’s view, making
its own findings instead of remanding for further findings in the
district court.

8
 Cite as: 2019 UT 39
Opinion of the Court

¶27 The State’s first argument finds plausible support in the
language of some of our opinions. We have occasionally endorsed
the propriety of a regime in which we “assume that the trier of facts
found” facts “in accord” with its decision despite the absence of
express “findings of fact.” Mower v. McCarthy, 245 P.2d 224, 226
(Utah 1952); see also State v. Ramirez, 817 P.2d 774, 788 (Utah 1991)
(quoting Mower, 245 P.2d at 226). Yet we have not always assumed
the existence of facts not expressly stated on the face of a lower court
order.3 And we have never identified a universal standard for
judging when we should infer the existence of findings not made on
the record before us on appeal. This is an important question. And it
is one we should address in an appropriate case. This is not that case,
however, as we have no briefing from the parties on the standard
that we should apply in deciding when to infer findings not
expressly stated below, and a resolution of this question is not
necessary to decide this case (in light of our decision to reverse on an
alternative ground—see Part II.C below).
¶28 The State’s alternative argument—that the court of appeals
erroneously made its own factual findings—is misguided. The State
is correct that our appellate courts are precluded from making
independent findings of fact on appeal. See Rucker v. Dalton, 598 P.2d
1336, 1338 (Utah 1979) (“[I]t is not the function of an appellate court
to make findings of fact because it does not have the advantage of
seeing and hearing the witnesses testify.”). But that is not what
happened here. The court of appeals merely determined that the

3 Rightly. A universal rule to this effect would create bad
incentives. It would discourage trial judges from including detail in
their findings and conclusions. And that would rob us of the insight
and analysis that we look to as the starting point for our decisions on
appeal or certiorari. In light of these concerns, it might make sense
for us to clarify our case law by establishing that we infer findings
not explicitly entered below only in narrow circumstances, such as
when the absent finding is necessary to the court’s ultimate decision
(and not just consistent with it). See State v. Garcia-Cantu, 253 S.W.3d
236, 241 (Tex. Crim. App. 2008) (“When the trial court does not make
explicit findings of fact, the appellate court infers the
necessary factual findings that support the trial court’s ruling if the
record evidence (viewed in the light most favorable to the ruling)
supports these implied fact findings.” (emphasis added)). We do not
reach this question here, however, as it is unnecessary to our
decision.

9
 STATE v. STEWART
Opinion of the Court

district court’s findings were clearly erroneous. And that was the
court of appeals’ prerogative. See State v. Martinez, 2017 UT 43, ¶ 8,
424 P.3d 83 (“We disturb the district court’s findings of fact only
when they are clearly erroneous.”).
¶29 The court of appeals conducted a thorough review of the
evidentiary hearing at which Stewart testified in support of his
rule 4(f) motion. During that hearing, Stewart testified that the
sentencing court did not inform him of his right to appellate counsel.
And he testified that when the trial court informed him of the need
to either accept or reject the offer of court-appointed counsel by a
specific date, he believed that the trial court was giving him an
ultimatum that extended beyond trial and to his direct appeal. The
court of appeals acknowledged that Stewart’s testimony “was self-
serving and not detailed.” Stewart, 2018 UT App 151, ¶ 21. And it
recognized that Stewart “did not have a ‘full memory of everything’
that was said to him from the bench.” Id. Yet the court highlighted
the fact that Stewart repeatedly emphasized without qualification
that the sentencing court did not inform him of his right to appellate
counsel. Such “uncontroverted testimony,” in the court of appeals’
view, “was evidence that [Stewart] was not informed of his right to
appellate counsel.” Id. ¶ 22. “Because the State offered no evidence to
the contrary and because the [district] court did not find that the
evidence presented was incredible or unreliable,” the court of
appeals concluded that the district court “clearly erred.” Id.
¶30 The court of appeals did not make its own credibility
determination. Nor did it make any other factual findings. The court
thus acted within its prerogative in reviewing the district court’s
findings and ensuring that the district court properly applied the
correct standard of proof. And we do not disagree with the court of
appeals’ conclusion.
C
¶31 The State advances a final basis for resolution of this case. It
asserts that Stewart is at fault for the dismissal of his appeal, and
contends that he cannot avail himself of rule 4(f) because he was not
“deprived” of a right to appeal “through no fault of his own.” We
agree and reverse on this basis.
¶32 Rule 4(f) is premised on a causation analysis. Defendants
seeking relief under rule 4(f) must demonstrate that they are not the
cause of the loss of their right to appeal. They must point to some

10
 Cite as: 2019 UT 39
Opinion of the Court

other party—typically, counsel or the trial court—that is at fault for
the deprivation of the right to appeal.4
¶33 Rule 4(f) premises reinstatement of the thirty-day period for
filing a direct appeal “[u]pon a showing that a criminal defendant
was deprived of the right to appeal.” UTAH R. APP. P. 4(f) (emphasis
added). The term “deprived” is crucial. That “word encompasses a
narrow range of situations where a defendant would have appealed,
but had that right ‘take[n] away’ or was ‘[kept] from the possession,
enjoyment, or use’ of that right.” State v. Collins, 2014 UT 61, ¶ 31,
342 P.3d 789 (alterations in original) (quoting WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 606 (2002)).5 A defendant like Stewart
who is the cause of his appeal being dismissed cannot claim that his
right to appeal was “taken away” or “kept” from him.
¶34 The precedent from which the language of rule 4(f) was
derived likewise contemplates a causation analysis. Rule 4(f) “was
adopted to implement the holding and procedure outlined in
Manning v. State.” UTAH R. APP. P. 4 advisory committee note. And
causation is a key cog in the Manning framework. In Manning we
held that a “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.” Manning v. State, 2005 UT 61, ¶ 31, 122 P.3d 628
(emphasis added). We then provided a few examples of what would
constitute a deprivation of the right to appeal. These examples
demonstrate the important role causation, or fault, plays in the
analysis. In the first example, a “defendant ask[s] . . . her attorney to
file an appeal but the attorney, after agreeing to file, fail[s] to do so.”
Id. In a second example, “the court or the defendant’s attorney fail[s]
to properly advise [the] defendant of the right to appeal.” Id. Each of
the defendants in these examples would be entitled to reinstatement

4 In so holding we are not deciding that rule 4(f) relief will be
foreclosed for any defendant who contributes in any way to the loss
of an appeal (by failing, for example, to respond to a query from
counsel on a matter of relevance to the appeal). Such a defendant
may still be able to establish that the loss of the right to appeal was
due to the fault of counsel. We need not and thus do not decide
whether a defendant’s “contributory negligence” would foreclose
relief under rule 4(f).
5 See also Deprivation, BLACK’S LAW DICTIONARY (11th ed. 2019)
(“1. An act of taking away . . . 2. A withholding of something . . . .”).

11
 STATE v. STEWART
Opinion of the Court

of the time to file an appeal. That’s because some party other than
the defendant—an attorney or the court—is at fault for the
defendant’s failure to exercise her right to appeal.
¶35 Manning and the examples cited therein align with the
language of rule 4(f). If a defendant is the cause of her appeal being
dismissed, she cannot claim that she has been “deprived of the right
to appeal.” See UTAH R. APP. P. 4(f). That is exactly what happened
here. After Stewart filed his notice of appeal and docketing
statement, the court of appeals provided him a briefing schedule.
Stewart, of his own volition, failed to follow that schedule—he never
filed a brief. And his appeal was dismissed on that basis. Stewart
cannot now claim that he was unconstitutionally deprived of his
right to appeal through no fault of his own.
¶36 Stewart sees this issue differently. He asserts that an integral
element of the right to appeal is the right to counsel on appeal. And
he insists that he must be made aware of the right to counsel on
appeal in order to exercise that right. Because the sentencing court
failed to inform him of his right to appellate counsel, Stewart asserts
that the sentencing court is to blame for the deprivation of the right
to counsel on appeal—and accordingly is at fault for the denial of his
right to appeal.
¶37 Stewart’s proposition rests on the premise that constitutional
rights are not properly preserved unless they are expressly
highlighted in a colloquy in a judicial proceeding. Yet this is by no
means a universal rule. And it runs contrary to the well-accepted
maxim that “ignorance of the law is no excuse.” See In re Adoption of
B.Y., 2015 UT 67, ¶ 19 n.3, 356 P.3d 1215 (citation omitted). This
maxim is often invoked where a defendant claims ignorance of a
statutory penalty. See, e.g., Cheek v. United States, 498 U.S. 192, 199
(1991). But it also has broader purchase. Any of a broad range of trial
rights may be thought to be preserved despite the lack of an explicit
announcement in court of the existence of such a right. Our rules of
procedure require a colloquy or other disclosure as to some
important constitutional rights. But other such rights remain intact
despite the lack of an open announcement in court of their existence.
¶38 The United States Supreme Court has identified a few rights
whose very existence implies a requirement of open announcement
by the government. See, e.g., Miranda v. Arizona, 384 U.S. 436, 467–68
(1966) (requiring that persons in custody be informed of their
privilege against self-incrimination); Johnson v. Zerbst, 304 U.S. 458,
467–68 (1938) (requiring that defendants knowingly waive their right

12
 Cite as: 2019 UT 39
Opinion of the Court

to trial counsel). For these limited rights, the failure to apprise a
defendant of his rights forecloses the possibility of a determination
of waiver or forfeiture. The right at issue is deemed to require an
express disclosure of its existence. And the failure of disclosure
means that a defendant cannot be charged with forfeiting the
underlying right. Our opinions and rules of evidence have extended
this principle a step or two further. See, e.g., UTAH R. CRIM. P. 11(e)(3)
(requiring trial courts to inform criminal defendants of their right
against compulsory self-incrimination before accepting a guilty
plea); Manning, 2005 UT 61, ¶ 31 (requiring that a defendant be
informed of the right to appeal). But the above rights (and others we
may be omitting) are exceptions that prove the rule. Unless and until
the law expressly requires open announcement and express waiver,
we presume an understanding of the existence of rights guaranteed
by the constitution—and charge parties with the duty of asserting
their rights, while imposing the consequence of forfeiture if they fail
to do so at the time and in the manner required by our rules of
procedure.
¶39 Our framework parallels that of the California Supreme
Court in People v. Barnum, 64 P.3d 788 (Cal. 2003). The Barnum court
reconsidered the viability of the “Killpatrick-Kramer rule.” Id. at 793.
That rule “require[d] a trial court to advise a self-represented
defendant of the privilege against compelled self-incrimination
before he or she is called by the People as a witness in their
case-in-chief or testifies in his or her own defense.” Id. In reassessing
this rule, the court considered whether “the privilege against
compelled self-incrimination, alone among the rights enjoyed by a
self-represented defendant, mandates protection by the trial court”
by an open disclosure of the existence of this right. Id. at 796. And it
concluded that the right itself did not require this additional
protection. Id. In so doing the court “recognize[d] that the privilege
against compelled self-incrimination has been viewed as
‘fundamental.’” Id. Yet it also noted that “other rights have been so
ranked as well,” citing the “right to compulsory process,” the “right
of confrontation,” and the “right to testify.” Id. In the Barnum court’s
view, “[n]o requirement has been imposed on the trial court to
advise a self-represented defendant of any of these fundamental
rights.” Id. at 797. So it cannot be that the “fundamental” nature of
the right mandates that notice of the right be provided. “[A]
defendant who chooses to represent himself or herself after
knowingly, intelligently, and voluntarily forgoing the assistance of
counsel assumes the risk of his or her own ignorance, and cannot
rely upon the trial court to make up for counsel’s absence.” Id.; see

13
 STATE v. STEWART
Opinion of the Court

also State v. Winfield, 2006 UT 4, ¶ 19, 128 P.3d 1171 (“[A] party who
represents himself will be held to the same standard of knowledge
and practice as any qualified member of the bar.” (citation omitted)
(internal quotation marks omitted)).
¶40 We see the matter similarly. To prevail in this case it is not
enough for Stewart to assert that he has a right to appellate
counsel—or even to insist that such right is important or in some
sense fundamental. That begs the key question, as to whether this
right (of all the important rights enshrined in the United States and
Utah Constitutions) carries an additional requirement of open
announcement or disclosure in court. Such a requirement is not
inherent in the mere existence of a constitutional right. It must be
established by rule or judicial opinion.
¶41 This framework dooms Stewart’s case. At the time of
Stewart’s sentencing, no controlling precedent or rule had
established a requirement of open announcement in court of the
right to appellate counsel. Perhaps such an announcement would
have been a “best practice.” But there was no rule yet in place. We
amended our rules in 2018 to require an announcement of the right
to appellate counsel at sentencing. See UTAH R. CRIM. P. 22(c)(1)
(2018). Yet the trial judge that sentenced Stewart can hardly be
charged with the duty to follow a rule promulgated fifteen years
later. With that in mind, we cannot fault the sentencing court for
failing to inform Stewart of his right to counsel on appeal.
¶42 We do not hold courts at fault for failure to conform to best
practices. We reverse on errors of law. And here there was no legal
error. The judge that sentenced Stewart was under no legal
obligation to inform him of his right to counsel on appeal. Because
the sentencing court was under no such obligation, it was not at fault
for the dismissal of Stewart’s appeal. Relief under rule 4(f) is
accordingly not warranted.
¶43 Stewart contests this conclusion. He notes that a few courts
have determined that the United States Constitution requires courts
to give criminal defendants express notice of the right to appellate
counsel. See, e.g., United States v. Aloi, 9 F.3d 438, 444 (6th Cir. 1993);
United States ex rel. Singleton v. Woods, 440 F.2d 835, 836 (7th Cir.
1971); United States ex rel. Smith v. McMann, 417 F.2d 648, 654 (2d Cir.
1969); Cochran v. State, 315 S.E.2d 653, 654 (Ga. 1984); State v. Allen,
239 A.2d 675, 677 (N.J. Super. Ct. Law Div. 1968). Fair enough. But
none of these precedents is controlling here. And we decline to

14
 Cite as: 2019 UT 39
Opinion of the Court

establish a new federal constitutional right on the briefing that is
before us in this case.
¶44 Stewart’s briefing on this question is limited and ultimately
unavailing. He cites only one case from the United States Supreme
Court in support of his position—Halbert v. Michigan, 545 U.S. 605
(2005). But Stewart misstates the holding in Halbert. Halbert does not
establish that a defendant cannot waive the right to appellate
counsel unless he is informed of that right, as Stewart suggests. The
Court in Halbert was merely assessing the constitutionality of a
Michigan statute that denied court-appointed appellate counsel to
indigents convicted by plea. Id. at 610. The Halbert Court struck
down that statute. But Halbert does not endorse the right Stewart
asks us to acknowledge. And we are in no position to establish a new
federal, constitutional right on the briefing that is before us in this
case.
¶45 Stewart’s briefing fails to engage with the relevant
provisions of the United States Constitution. He provides no analysis
of the text or original meaning of the Due Process and Equal
Protection Clauses, which have been cited as the source of the right
to appellate counsel. See id. at 610–11. And he never connects the
dots in a manner that explains why this right (among many other
fundamental rights of criminal procedure) should carry a
requirement of open announcement in court. At most Stewart is
asserting that the right to appellate counsel is an important
constitutional right. But that is true for many other constitutional
rights afforded within the criminal process. And without any careful
briefing on the matter, we lack a principled basis for establishing that
there was a constitutional duty for the judge who sentenced Stewart
in 2003 to inform him in open court of his right to appellate counsel.
¶46 Stewart’s briefing under the Utah Constitution is likewise
deficient. As with the federal constitutional question, Stewart has not
engaged with the text or original meaning of the governing
provisions of the Utah Constitution, or identified a basis for deeming
the right to counsel on appeal as one of those limited rights that also
conveys a requirement of open disclosure in court as a prerequisite
to its forfeiture.
¶47 This is fatal to Stewart’s case. We are in no position to
establish a new constitutional right of the sort proposed by Stewart
under the briefing that is before us. See Zimmerman v. Univ. of Utah,
2018 UT 1, ¶ 19, 417 P.3d 78 (citing the failure of originalist analysis
as one of several grounds for declining to establish a new state
constitutional right). Nor are we in a position to conclude that the

15
 STATE v. STEWART
Opinion of the Court

sentencing judge had a duty to announce the existence of a right to
appellate counsel under governing statutes or rules of procedure.
Such a duty has come into existence in the years after the sentencing
proceeding at issue in this case. See UTAH CODE § 78B-22-201(1)(c)
(requiring sentencing courts to advise criminal defendants who are
convicted of “a criminal offense the penalty for which includes the
possibility of incarceration” that they have a right to counsel on
appeal); UTAH R. CRIM. P. 22(c)(1) (requiring sentencing courts to
advise defendants of “the right to retain counsel [on appeal] or have
counsel appointed by the court if indigent”). But neither the cited
rule nor the governing statute was in place in 2003. And again, we
cannot fault the sentencing judge for a failure to follow laws that
were not adopted until years after he imposed the sentence in
question.
¶48 We reverse on this basis. We conclude that Stewart has failed
to carry his burden of persuading us to establish a new constitutional
right. See State v. Fuller, 2014 UT 29, ¶ 50, 332 P.3d 937 (requiring
defendants asserting constitutional claims to provide more than just
“bald citations to authority [without] development of that authority
and reasoned analysis based on that authority” (alteration in
original) (citation omitted) (internal quotation marks omitted)). In so
holding we do not foreclose the possibility that a future litigant may
establish the existence of this constitutional right. We simply hold
that Stewart has failed to carry his burden of persuasion in his
briefing in this case. And in the absence of a sufficient basis for
establishing this new right we conclude that there was no “fault” on
the part of the sentencing judge that resulted in the denial of
Stewart’s right to appeal. The fault rests with Stewart—in failing to
file a brief under the briefing schedule established by the court of
appeals. And Stewart is accordingly not entitled to relief under
rule 4(f).

16