State v. Collins

2013 UT App 42
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

ROBERT COLLINS,

Defendant and Appellant.

Opinion
No. 20110164‐CA
Filed February 22, 2013

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

Samuel P. Newton, Attorney for Appellant
John E. Swallow and John J. Nielsen,
Attorneys for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion,
in which JUDGES WILLIAM A. THORNE JR.
and CAROLYN B. MCHUGH concurred.

VOROS, Judge:

¶1 Robert Collins was convicted of murder and two counts of
aggravated robbery, first degree felonies, committed when he was
nineteen years old. Collins did not timely appeal the convictions
but later sought reinstatement of the time to appeal, arguing that
he was unconstitutionally deprived of his right to appeal. The trial
court denied that motion, and Collins appeals the denial. We
reverse and remand.
 State v. Collins

BACKGROUND

¶2 Collins was sentenced on January 5, 2007. At sentencing, the
trial court did not advise Collins of his right to appeal. See generally
Utah R. Crim. P. 22(c)(1). But Collins’s defense counsel advised
Collins, first after the jury returned a guilty verdict and again at
sentencing, that he had a right to appeal. Defense counsel encour‐
aged Collins to appeal and even identified “appealable issues,”
such as erroneous jury instructions. However, defense counsel did
not tell Collins that a notice of appeal must be filed within thirty
days after sentencing.

¶3 Collins twice told his attorney that he did not want to
appeal. At sentencing, defense counsel told Collins, “If you change
your mind you have to let me know within two weeks.”1 Collins
did not appeal within the thirty‐day time frame required by the
Utah Rules of Appellate Procedure. See generally Utah R. App. P.
4(a).

¶4 Over two years later, Collins sent a letter to the court stating
that defense counsel had agreed to file an appeal and asking for a
status report on the appeal. Defense counsel responded with a two‐
sentence letter stating, “There is no appeal. You didn’t request
one.” Collins then moved the trial court to reinstate his time to
appeal. See generally Utah R. App. P. 4(f); Manning v. State, 2005 UT
61, 122 P.3d 628. After an evidentiary hearing, the trial court denied
the motion, ruling that Collins had not been deprived of his right
to appeal, because defense counsel “properly advised” Collins of
his right to appeal. Collins timely appealed this ruling.

ISSUE AND STANDARD OF REVIEW

¶5 Because Collins limits his challenge to the trial court’s
ultimate conclusion that he was not deprived of his right to appeal,

1. Collins presented a different version of events to the trial court.
But Collins does not challenge the court’s factual findings, so we
have presented the facts as found by the trial court.

20110164‐CA 2 2013 UT App 42
 State v. Collins

we accept the trial court’s findings of fact and review its legal
conclusions for correctness. See State v. Kabor, 2013 UT App 12, ¶ 8,
— P.3d —.

ANALYSIS

¶6 A criminal defendant’s right to appeal is guaranteed by the
Utah Constitution, which states, “In criminal prosecutions the
accused shall have . . . the right to appeal in all cases.” Utah Const.
art. I, § 12. “Article I, section 12’s guarantee of the right of criminal
defendants to appeal occupies a place within the Constitution’s
Declaration of Rights, the repository of our citizens’ most prized
liberties.” State v. Lara, 2005 UT 70, ¶ 21, 124 P.3d 243. The Utah
Supreme Court has stated that “the right of appeal [is] essential to
a fair criminal proceeding” and cannot be “lightly forfeited.” State
v. Tuttle, 713 P.2d 703, 704 (Utah 1985). The importance of an
appeal in criminal cases is demonstrated by our statute providing
that a “judgment of conviction and sentence of death is subject to
automatic review by the Utah State Supreme Court,” Utah Code
Ann. § 76‐3‐206(2)(a) (LexisNexis 2012). In fact, a conviction for
capital murder and sentence of death will be examined on appeal
even if the defendant, convinced that death is the appropriate
penalty, prefers not to appeal. See State v. Arguelles, 2003 UT 1, ¶ 1,
63 P.3d 731.

¶7 Nevertheless, like all procedural constitutional rights, the
right to appeal from a criminal conviction is subject to limitations.
Among these is the jurisdictional requirement that the notice of
appeal be filed within thirty days. State v. Bowers, 2002 UT 100, ¶ 5,
57 P.3d 1065. However, this deadline has long been subject to a
safety valve. See State v. Johnson, 635 P.2d 36, 38 (Utah 1981),
superseded by rule and statute as stated in Manning v. State, 2005 UT
61, ¶ 11, 122 P.3d 628. As our supreme court stated in Manning v.
State, 2005 UT 61, 122 P.3d 628, “[v]irtually all jurisdictions provide
some procedural mechanism for restoring a denied right to appeal,
and we have a particular interest in doing so because of our
constitutional mandate to provide a criminal appeal ‘in all cases.’”
Id. ¶ 26 (quoting Utah Const. art. I, § 12). And currently, under

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 State v. Collins

Manning and the Utah Rules of Appellate Procedure, a defendant
is entitled to have the trial court reinstate the thirty‐day time frame
for filing an appeal where the defendant can prove by a preponder‐
ance of the evidence “that he has been unconstitutionally deprived,
through no fault of his own, of his right to appeal.” Id. ¶¶ 31–32; see
also Utah R. App. P. 4(f). To do so, the defendant must overcome
the presumption that failure to file a notice of appeal within the
thirty‐day limit was a knowing and voluntary waiver of the right
to appeal. Manning, 2005 UT 61, ¶¶ 1, 42; see also Kabor, 2013 UT
App 12, ¶ 11.

¶8 In Manning, the supreme court identified at least three
scenarios that would overcome the presumption of waiver and
constitute an unconstitutional deprivation of the right to appeal.
Among the scenarios identified were situations where “the court
and the defendant’s attorney” “failed to properly advise defendant
of the right to appeal.” Manning, 2005 UT 61, ¶¶ 31, 40. The court
later explained in Johnson v. State, 2006 UT 21, 134 P.3d 1133, “If
neither the sentencing court nor [the defendant’s] attorney
informed [the defendant] of his right to appeal, then he will have
a valid claim for reinstatement of that right.” Id. ¶ 26.

¶9 Here, the trial court did not advise Collins of his right to
appeal. But this omission does not require reinstatement of the time
to appeal if defense counsel properly advised Collins of his rights.
See Kabor, 2013 UT App 12, ¶¶ 14–17. Collins’s attorney advised
Collins of his right to appeal, but not the deadline after which any
appeal would be untimely. The Utah Rules of Criminal Procedure
state, “Following 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.” Utah R. Crim. P. 22(c)(1). We therefore
conclude that properly advising a defendant of his right to appeal
includes advising him of the time within which an appeal must be
filed. Accordingly, neither the sentencing court nor Collins’s
attorney properly informed Collins of his right to appeal. Conse‐
quently, under Manning and Johnson v. State, Collins has “a valid
claim for reinstatement of that right,” Johnson v. State, 2006 UT 21,
¶ 26.

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 State v. Collins

¶10 The State maintains, however, that Manning error is subject
to review for harmless error or prejudice. The State further argues
that however flawed counsel’s advice to Collins may have been, it
did not cause Collins to forego his right to an appeal: “Defendant
never claimed that he relied on the two‐week time frame in failing
to file a timely appeal”; he “has never asserted that two weeks
passed and that he gave up on appealing because he relied on
[defense counsel’s] advice.”2

¶11 Many cases from other states do hold that a trial court’s
failure to properly advise a defendant of his appeal rights is subject
to a harmless error analysis. However, the large majority of these
cases do so because, unlike Collins, the defendant either appealed
anyway or learned of those rights from another source. See, e.g.,
Tanner v. State, 624 So. 2d 703, 706 (Ala. Crim. App. 1993) (“[B]ecau‐
se 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 harm‐
less.”); Castro v. Superior Court, 40 Cal. App. 3d 614, 621–22 & n.13
(1974) (limiting permission to file a belated appeal to situations
where court and counsel failed to inform defendant of “something
he did not already know”); Wakily v. State, 483 S.E.2d 313, 318 (Ga.
Ct. App. 1997) (noting that defendant could not show harm in the
trial court’s alleged failure to advise him of his right to appeal
because “[i]mmediately after sentencing, appointed trial counsel
informed the court that [the defendant] desired to appeal,” and the
court “immediately appointed appellate counsel”); State v. Dafoe,
463 A.2d 770, 773 (Me. 1983) (“[B]ecause he was subsequently
permitted to perfect direct appeals in both cases, Dafoe was not
prejudiced by either counsel’s or the court’s failure to advise him
of the right to appeal.”); People v. Grant, No. 237899, 2003 WL
21108468, at *4 (Mich. Ct. App. May 15, 2003) (noting that court’s
failure to advise defendant would be harmless where defendant
appeals anyway); Novak v. State, 787 S.W.2d 791, 794 (Mo. Ct. App.
1990) (“[A]ppellant was advised by his attorney of his right to

2. On the contrary, Collins testified that he directed his attorney to
file an appeal, although the trial court did not find this testimony
to be credible.

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 State v. Collins

appeal his kidnapping sentence. . . . Likewise, the appellant
testified that he had been convicted of crimes prior to 1982 in which
an appeal was taken on his behalf by the public defender’s office.”);
State v. Fox, 2011‐Ohio‐2751, ¶ 8 (Ohio Ct. App.) (“Fox was not
harmed by the trial court’s failure to mention the right to a second
appeal, a right Fox probably was aware of anyway.”). See also
Crowe v. State, 649 P.2d 2, 2 (Utah 1982) (per curiam) (stating in the
pre‐Manning context that the court’s failure to inform defendant of
his right to appeal at sentencing was harmless where the trial court
“clearly told the plaintiff at the trial and after the verdict, that he
had a right of appeal”).

¶12 The State cites Peguero v. United States, 526 U.S. 23 (1999) for
the proposition that a district court’s failure to advise a defendant
of his right to appeal entitles that defendant to relief only if he
demonstrates prejudice. But the omission in Peguero was deemed
harmless because Peguero “had independent knowledge of the
right to appeal and so was not prejudiced by the trial court’s
omission.” Id. at 29–30. Subsequent federal decisions finding a lack
of prejudice typically do so based on the defendant’s having
learned of his rights from another source or having in fact ap‐
pealed. See, e.g., United States v. Tapp, 276 F. App’x 258, 260 (4th Cir.
2007) (per curiam) (“Any failure by the district court to advise
Tapp of his right to appeal is clearly harmless as his attorney timely
filed a notice of appeal.”); Fleming v. Secretary, Dep’t of Corr., 231 F.
App’x 932, 935 (11th Cir. 2007) (per curiam) (“[B]ecause the plea
agreement advised Fleming of his right to appeal, Fleming failed
to demonstrate prejudice from the state trial court’s failure to
inform him of his right to appeal.”); United States v. Price, 71 F.
App’x 567, 568 (6th Cir. 2003) (holding that although “the district
court failed to advise Price of his right to appeal,” “Price’s timely
notice of appeal rendered the error harmless”); United States v.
Berry, 4 F. App’x 159, 160 (4th Cir. 2001) (per curiam) (remanding
for a prejudice hearing where “the record [was] void of any
evidence demonstrating that Berry was aware of his right to seek
leave to proceed on appeal in forma pauperis”); Soto v. United
States, 185 F.3d 48, 50 (2d Cir. 1999) (“We hold further that the
government bears the burden of establishing harmlessness by
showing through clear and convincing evidence that the defendant

20110164‐CA 6 2013 UT App 42
 State v. Collins

either actually exercised this right, waived this right, or had
independent knowledge of this right.”).

¶13 But the test urged by the State requires more of a defendant
than proving he was uninformed of his appeal rights; it would in
addition require the defendant to prove that but for his lack of
information he would have filed an appeal. This is the rule in
Kansas. Kansas is significant in this context, because the Manning
court found the Kansas approach useful in devising the Utah
procedure. See Manning v. State, 2005 UT 61, ¶ 29, 122 P.3d 628
(citing State v. Ortiz, 640 P.2d 1255, 1257 (Kan. 1982)). Under Kansas
law, a defendant must prove both that he was not informed, and
“that, had he or she been properly informed, a timely appeal would
have been sought.” See State v. Patton, 195 P.3d 753, 767 (Kan. 2008).
But even in Kansas this rule is apparently applied with some
leniency. For example, the Kansas Court of Appeals ruled that
evidence that a defendant asked his attorney about whether he
should file an appeal, admitted that he did not ask her to file an
appeal at that time, but later sent a letter to his former lawyer
asking him to file an appeal “appears to be sufficient . . . to
establish that had [the defendant] been properly informed, he
would have sought a timely appeal.” State v. Barnett, No. 98,904,
2009 WL 77887, at *4 (Kan. Ct. App. Jan. 9, 2009) (per curiam).3

3. Prejudice is thus a matter of degree. One could go even further
than Kansas has gone and than the State would have us go, and
require a defendant to prove not only that he was uninformed of
his appeal rights, and that but for his lack of information he would
have filed an appeal, but also that the appeal would have had
merit. But see Peguero, 526 U.S. at 30 (O’Connor, J., with three
justices joining, concurring) (“In my opinion, there is no reason
why a defendant should have to demonstrate that he had
meritorious grounds for an appeal when he is attempting to show
that he was harmed by the district court’s error.”). This is, in fact,
the test employed when a petitioner seeks the “extraordinary
remedy” of post‐conviction relief on the ground that he was
prejudiced by his appellate counsel’s deficient performance. See
Lucero v. Kennard, 2005 UT 79, ¶ 36, 125 P.3d 917 (describing post‐
(continued...)

20110164‐CA 7 2013 UT App 42
 State v. Collins

¶14 Although the Utah Supreme Court did not explicitly address
the question of prejudice in Manning and Johnson v. State, the
rationale of those cases is most consistent with the majority view,
which does not attempt to determine what a defendant would have
done had he been fully informed of his appeal rights. This ap‐
proach is also consonant with our supreme court’s decision in State
v. Alexander, 2012 UT 27, 279 P.3d 371. There, the court rejected the
argument that a defendant seeking to withdraw a guilty plea must
show that any error in the plea colloquy was prejudicial in the
sense that “but for” the error he would not have pleaded guilty. Id.
¶ 38. The court’s holding rests in part on the difficulty of evaluating
whether an uninformed defendant would, had he or she been
informed, nevertheless have pleaded guilty. Id. ¶ 48. Although one
justice concurred separately and one justice concurred in part and
dissented in part, the court was unanimous on this point.

¶15 Accordingly, we 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.

¶16 We reverse and remand for reinstatement of the thirty‐day
period for filing a direct appeal.

3. (...continued)
conviction relief as an “extraordinary remedy”); Carter v. Galetka,
2001 UT 96, ¶¶ 48, 51, 44 P.3d 626 (adopting Tenth Circuit’s “dead‐
bang winner” rule and rejecting a claim of ineffective assistance of
counsel on the ground that the claim omitted by appellate counsel
was not “likely to result in reversal on appeal” (citing Banks v.
Reynolds, 54 F.3d 1508, 1515 (10th Cir. 1995))).

20110164‐CA 8 2013 UT App 42