State v. Nicholls

2017 UT App 60

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
CRAIG DUNCAN NICHOLLS,
Appellant.

Opinion
No. 20140629-CA
Filed March 30, 2017

First District Court, Logan Department
The Honorable Kevin K. Allen
No. 031100637

Wayne K. Caldwell and Aaron K. Bergman,
Attorneys for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
GREGORY K. ORME and SENIOR JUDGE PAMELA T. GREENWOOD
concurred. 1

ROTH, Judge:

¶1 Craig Duncan Nicholls filed a Manning motion in district
court seeking to reinstate the time to directly appeal the murder
conviction entered against him after a guilty plea. The court
determined that Nicholls had already exhausted his right to a
direct appeal and denied the motion, which he appeals. We
affirm.

1. Senior Judge Pamela T. Greenwood sat by special assignment
as authorized by law. See generally Utah R. Jud. Admin. 11-
201(6).
 State v. Nicholls

BACKGROUND

¶2 This case comes to us on a long and varied procedural
history involving multiple appellate and postconviction
proceedings. We first recount the general background before
moving to the particular circumstances that led to this appeal.

General Case History

¶3 After consulting with his girlfriend, Nicholls agreed to kill
her ex-husband. On a pretense, Nicholls lured the ex-husband to
a construction site, shot him in the back and chest, hid the body
in a storage room, and made off in the victim’s car. Investigators
quickly focused on Nicholls and his girlfriend and charged him
with aggravated murder and with purchasing, transferring,
possessing, or using a firearm by a restricted person. The State
initially sought the death penalty.

¶4 Nicholls’ trial counsel negotiated a plea agreement on his
behalf. In exchange for his guilty plea, the State agreed to drop
the firearm charge and to forgo the death penalty and instead
seek life in prison without the possibility of parole. Nicholls
agreed to the terms and pleaded guilty. After a plea colloquy in
which Nicholls waived the waiting period for sentencing, the
court accepted his guilty plea and immediately sentenced him to
life in prison without the possibility of parole.

¶5 In the time since, Nicholls has sought to challenge aspects
of his plea in a number of ways. First, he filed a pro se motion to
withdraw the plea, which the district court denied as untimely,
and thus jurisdictionally barred, because he had not filed the
motion before sentencing as required by Utah law. Nicholls then
filed a pro se appeal from the denial of his motion, but the
appeal was dismissed after he failed to file a docketing
statement. Second, Nicholls ostensibly sought to challenge his
sentence in district court under Utah Rule of Criminal Procedure
22(e), which allows a court to correct an illegal sentence at any

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time. The district court determined that it lacked subject matter
jurisdiction and dismissed the rule 22(e) motion. Nicholls
appealed and was appointed counsel for the appeal. The Utah
Supreme Court affirmed the district court’s dismissal in State v.
Nicholls (Nicholls I), 2006 UT 76, 148 P.3d 990. In that case, the
supreme court determined that the motion, although filed in the
guise of a sentencing challenge under rule 22(e), was improper
because the substance of the relief requested was “withdrawal of
[Nicholls’] guilty plea due to lack of a knowing and voluntary
waiver of rights.” Id. ¶ 4. The court reiterated that rule 22(e)
motions are not the proper vehicle to attack a guilty plea, id. ¶ 5,
and noted that, having failed to move to withdraw his guilty
plea before sentencing, Nicholls’ only remaining avenue to
challenge the plea itself was under the Post-Conviction
Remedies Act (the PCRA), id. ¶¶ 6–7. Although not deciding the
issue, the court noted “that Defendant may be entitled to counsel
pursuant to [a provision of the PCRA]” in any future
postconviction process. Id. ¶ 7.

¶6 Nicholls, acting pro se, subsequently challenged the guilty
plea underlying his conviction by petitioning the district court
for relief under the PCRA. On the State’s motion, the district
court dismissed the petition on the merits. Nicholls timely
appealed to the supreme court, where he also represented
himself, resulting in Nicholls v. State (Nicholls II), 2009 UT 12, 203
P.3d 976.

¶7 In Nicholls II, the court reached the merits of Nicholls’
postconviction arguments, including one relevant here—namely,
his contention that he received ineffective assistance of counsel
during the plea phase of his criminal case. In support of his
claim, Nicholls argued that “on the day of the plea hearing, I
told [counsel] I wanted a trial,” and that in response “counsel
refused to consult with me or even acknowledge that I had any
input.” Id. ¶ 35. Nicholls also claimed that “counsel spent two
hours making threats, demands, and bribes to force [him] to

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accept the plea deal, and, eventually, [he] could no longer resist
and capitulated to the plea.” Id.

¶8 In assessing his claims, the supreme court focused on the
record from Nicholls’ underlying criminal case. The court
determined that Nicholls’ counsel advised him to accept a plea
deal that avoided a potential death sentence and that, even if
counsel put very little time into the case and only consulted with
him twice as Nicholls asserted, such facts were not sufficient to
show that his counsel performed deficiently. Id. ¶ 37. The
supreme court also reviewed Nicholls’ plea colloquy with the
district court in detail. It highlighted the fact that, in response to
four separate questions from the district court, Nicholls had
essentially indicated that he was satisfied with the advice of his
counsel and had not been compelled to enter a plea. Id. ¶ 39. The
supreme court also concluded that, even if his counsel had been
deficient, Nicholls had not met his burden of showing prejudice
in his acceptance of a plea deal because he “pointed to no record
evidence to show that he would have garnered a more favorable
result had he not pled guilty.” Id. ¶ 40. In sum, the supreme
court affirmed the district court’s dismissal of Nicholls’ PCRA
claims on the merits and in detail, concluding that Nicholls had
not demonstrated ineffective assistance of counsel during the
plea and sentencing phase of his criminal case. Id. ¶ 41.

This Appeal

¶9 After failing to convince the supreme court that his plea
was constitutionally flawed, Nicholls returned to the district
court with a motion to appoint counsel and reinstate his time for
direct appeal under Manning v. State, 2005 UT 61, 122 P.3d 628.
After several procedural and scheduling issues delayed
resolution of the motion, the court appointed counsel for
Nicholls and set a briefing schedule. The State’s briefing
deadline came and went without the State submitting a
response. Although Nicholls’ counsel took no action, Nicholls
moved pro se to submit for decision on his pleading alone.

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 State v. Nicholls

Along with his request to submit, Nicholls also moved to
dismiss and replace counsel based on a potential conflict of
interest that had been uncovered.

¶10 With the Manning motion still pending and submitted for
decision, the State moved to enlarge its time to file a response,
which the court granted the same day. The State then filed its
opposition to the Manning motion, but Nicholls’ appointed
counsel never replied to the State’s brief even though counsel
timely requested and was granted extra time to do so. Nicholls,
citing repeated but failed attempts to contact his counsel,
submitted his motion for replacement counsel for decision. The
court scheduled a second status conference and learned that
Nicholls’ existing counsel had stopped working on the case due
to the unresolved conflict question. The court left the counsel
issue open and indicated that it would proceed to decide the
Manning motion on the record already before it.

¶11 In a written decision issued a few weeks later, the court
determined that Nicholls had “exhausted his direct appeal
rights” because he “gained access to the appellate system by
filing his [first] Notice of Appeal.” The court also concluded that,
based on his failed rule 22(e) motion, “[Nicholls] has already had
direct appellate review as it pertains to his attempt to withdraw
his guilty plea.” The court denied the Manning motion and
denied the motion for appointment of new counsel as moot.
Nicholls timely filed a notice of appeal, and we remanded for
appointment of appellate counsel.

¶12 Now with counsel, Nicholls has submitted the case on
briefs and oral argument. After the case was submitted,
however, Nicholls moved this court for a stay pending a decision
in a Utah Supreme Court case, Gailey v. State, 2016 UT 35, 379
P.3d 1278, which arose on a somewhat similar procedural
posture and involved similar arguments. Like this case, Gailey
involved an attack on the constitutionality of Utah’s statutory
requirement that any challenge to a guilty plea made after

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 State v. Nicholls

sentencing is limited to proceedings under the PCRA. We
granted the stay and both parties submitted supplemental
briefing once the Gailey opinion issued.

ISSUES AND STANDARDS OF REVIEW

¶13 Nicholls contends that the district court erred when it
denied his motion to reinstate the appeal period under Manning
v. State, 2005 UT 61, 122 P.3d 628. In the Manning context, we
review the district court’s legal conclusions “for correctness but
give deference to its underlying factual findings, meaning that
we will not overturn them unless they are clearly erroneous.”
State v. Kabor, 2013 UT App 12, ¶ 8, 295 P.3d 193. Because the
central question to be resolved here is whether Nicholls has a
right of appeal that is subject to reinstatement, see Manning, 2005
UT 61, ¶ 31, we primarily focus on Nicholls’ challenges to the
constitutionality of Utah’s statutory requirement that, once a
defendant is sentenced, the defendant may challenge a guilty
plea only under the PCRA. “The constitutionality of a statute is
also a question of law reviewed for correctness.” Gailey v. State,
2016 UT 35, ¶ 8, 379 P.3d 1278.

¶14 Nicholls also contends that the district court wrongly
denied his motion to appoint counsel as moot. “We review the
issue of mootness de novo, affording no discretion to the trial
court.” Cox v. Cox, 2012 UT App 225, ¶ 12, 285 P.3d 791.

ANALYSIS

¶15 In the proceeding below, Nicholls moved to reinstate the
time to appeal his conviction under Manning v. State, 2005 UT 61,
122 P.3d 628. Manning explains that “a criminal defendant
claiming denial of the right to appeal must file a motion in the
trial court for reinstatement of a denied right to appeal.” Id. ¶ 1.
In support of his motion, Nicholls alleged that his trial counsel

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performed ineffectively during the plea and sentencing phase of
his case: “there was coercion”; “[he] was wrongfully advised”;
and “[trial] counsel promised their assistance on the direct
appeal, but after sentencing, went dark.” According to Nicholls,
he thus “raised a colorable Manning motion at least facially
supported by the record,” and the court should have held a
hearing on the merits.

¶16 In denying Nicholls’ motion, the district court determined
that Nicholls had “exhausted his direct appeal rights.” It also
determined that Nicholls had “already had direct appellate
review as it pertains to his attempt to withdraw his guilty plea”
through the proceedings in Nicholls II, 2009 UT 12, 203 P.3d 976.
Because the court concluded that Nicholls’ Manning motion was
meritless, it also dismissed Nicholls’ pending motion for
substitute counsel as moot.

¶17 On appeal, Nicholls argues two points. First, he maintains
that he “should be permitted to move to withdraw the [guilty]
plea.” The thrust of the argument is that Utah Code section 77-
13-6 (the Plea Withdrawal Statute) unconstitutionally deprived
him of the right to appeal his conviction with the assistance of
counsel. 2 Second, Nicholls argues that he is entitled to a
“determination on the merits as to whether [he] was deprived of
his right to a direct appeal of his sentence.” He asserts that

2. In his opening brief, Nicholls asked this court to determine
“whether strict adherence to [the Plea Withdrawal Statute]
remains constitutional . . . where a defendant as a direct result of
ineffective legal counsel enters a plea and [is immediately
sentenced], thereby losing both the right to withdraw the plea,
and the right to legal counsel.” The supreme court’s opinion in
Gailey v. State, 2016 UT 35, 379 P.3d 1278, answered that question
in the affirmative. In his supplemental briefing, Nicholls
therefore refined the relief he requested, as we explain more
fully below.

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 State v. Nicholls

Manning grants him the ability to reinstate the time to appeal his
sentence because he meets the criteria announced in that case.
We conclude that the Plea Withdrawal Statute is constitutional
as applied to Nicholls and we therefore lack jurisdiction to
consider his plea withdrawal request. We also conclude that
Nicholls has not met the burden required to reinstate the time to
appeal his sentence.

I. Nicholls’ Request to Withdraw His Plea

¶18 Before addressing the merits of Nicholls’ arguments, we
first examine the legal framework at issue in this case, namely
Utah’s plea withdrawal and postconviction relief statutory
schemes. The Utah Constitution provides that, in criminal
prosecutions, the accused has “the right to appeal in all cases.”
Utah Const. art. I, § 12. The right to appeal is not unlimited,
however, because “the appeal must be taken within such
limitations and restrictions as to time and orderly procedure as
the Legislature may prescribe.” Weaver v. Kimball, 202 P. 9, 10
(Utah 1921).

¶19 One such restriction is that a defendant who pleads guilty
waives “the right to a direct appeal of the conviction on the
crime charged.” State v. Taufui, 2015 UT App 118, ¶ 15, 350 P.3d
631 (citation and internal quotation marks omitted). That is
because, “by pleading guilty, the defendant is deemed to have
admitted all of the essential elements of the crime charged and
thereby waives all nonjurisdictional defects, including alleged
pre-plea constitutional violations.” State v. Rhinehart, 2007 UT 61,
¶ 15, 167 P.3d 1046 (citation and internal quotation marks
omitted). Thus, “[i]f a defendant wishes to challenge a guilty
plea on direct appeal, he must first move to withdraw the plea.”
State v. Coleman, 2013 UT App 131, ¶ 3, 302 P.3d 860 (per
curiam).

¶20 The Plea Withdrawal Statute mandates that a request to
withdraw a guilty plea “shall be made by motion before

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sentence is announced.” Utah Code Ann. § 77-13-6(2)(b)
(LexisNexis 2012); see also id. § 77-13-6(2)(a) (explaining that, to
prevail on a motion to withdraw a plea, the defendant must
make “a showing that [the plea] was not knowingly and
voluntarily made”). If a defendant does not move to withdraw
the plea, the only direct appeal available is the residual right to
appeal the sentence. Manning v. State, 2005 UT 61, ¶ 37, 122 P.3d
628 (“Since [the defendant] could not appeal her conviction or
the knowing and voluntary nature of her guilty plea, any
remaining rights to appeal were necessarily limited to appealing
her sentence.”); see also State v. Ott, 2010 UT 1, ¶ 18, 247 P.3d 344
(“We have previously held that failure to withdraw a guilty plea
within the time frame dictated by [the Plea Withdrawal Statute]
deprives the trial court and appellate courts of jurisdiction to
review the validity of the plea.”).

¶21 This means that a defendant has only a finite window of
time during which to seek plea withdrawal, and missing the
window divests the defendant of the right to appeal anything
but the sentence itself. See Gailey v. State, 2016 UT 35, ¶ 20, 379
P.3d 1278 (“We therefore reaffirm our prior caselaw holding that
after sentencing is entered, a defendant may not file a motion to
withdraw a guilty plea or directly appeal the plea, but must
pursue postconviction relief through the PCRA . . . .”). The
length of the withdrawal window is at least nominally controlled
by Utah Rule of Criminal Procedure 22(a), which sets the “time
for imposing sentence” at “not less than 2 nor more than 45
days” after entry of the plea. Rule 22 is not absolute however—a
defendant may waive the minimum two-day waiting period and
consent to be sentenced immediately. Utah R. Crim. P. 22(a)
(allowing the court to modify the rule’s sentencing time “with
the concurrence of the defendant”). The natural consequence of a
defendant’s decision to waive the two-day minimum and be
sentenced immediately is to extinguish the defendant’s ability to
move to withdraw the plea and, with it, the right to direct appeal
of the plea itself.

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 State v. Nicholls

¶22 This consequence to immediate sentencing is
unquestionably constitutional under a long line of Utah Supreme
Court cases, most recently Gailey v. State, 2016 UT 35. And the
facts in that case are very similar to this one: Gailey, like
Nicholls, concurrently “pled guilty, waived the waiting period
for sentencing, and received judgment and sentence.” Id. ¶ 1. On
appeal, Gailey raised a facial challenge to the constitutionality of
the Plea Withdrawal Statute, which “bars direct appeals once
sentencing takes place, and requires defendants to pursue
postconviction relief” under the PCRA. Id. ¶¶ 2–3. Gailey argued
that “the statute is unconstitutional” because the Utah
constitution provides that “‘the accused shall have . . . the right
to appeal in all cases,’” and the “PCRA remedy is not an
adequate substitute for a direct appeal.” Id. ¶ 2 (quoting Utah
Const. art. I, § 12).

¶23 The supreme court upheld the Plea Withdrawal Statute,
reasoning that it is constitutional because it “does not altogether
foreclose the right to an appeal.” Id. ¶ 3. Rather, the court
explained, the statute simply “provides an alternative
procedural route for challenging a plea” by directing defendants
to file postsentencing claims under the PCRA. Id. In sum, the
Plea Withdrawal Statute does not run afoul of an accused’s
“right to appeal in all cases,” Utah Const. art. I, § 12, because it
“simply dictates the procedural mechanism for pursuing a
claim,” Gailey, 2016 UT 35, ¶ 23. And Gailey follows in the path of
other supreme court cases that have rejected challenges to the
constitutionality of the Plea Withdrawal Statute based on equal
protection, due process, and the right to assistance of counsel.
E.g., State v. Rhinehart, 2007 UT 61, ¶¶ 11, 14, 167 P.3d 1046
(rejecting a claim that the Plea Withdrawal Statute
“unconstitutionally deprive[d] [the defendant] of her right to
appeal” and holding that ineffective assistance of counsel claims
“raised in the context of challenges to the lawfulness of guilty
pleas are governed by [the Plea Withdrawal Statute]”); State v.
Merrill, 2005 UT 34, ¶¶ 30, 47, 114 P.3d 585 (upholding the Plea

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 State v. Nicholls

Withdrawal Statute under both due process and equal protection
analyses). Thus, Utah’s plea withdrawal and postconviction
framework is uncontestably constitutional on its face. See Gailey,
2016 UT 35, ¶ 20. With that background, we now turn to
Nicholls’ specific arguments.

A. Nicholls’ Challenge

¶24 Nicholls asks us to determine whether the Plea
Withdrawal Statute “[was] applied in a manner that [was]
fundamentally and constitutionally fair.” We understand
Nicholls’ argument to be an as-applied constitutional challenge.
Indeed, Nicholls concedes that, unless an exception applies due
to his atypical circumstances, neither this court nor the district
court “have . . . jurisdiction to consider a direct appeal over [his]
conviction.” See State v. Merrill, 2005 UT 34, ¶ 17, 114 P.3d 585
(concluding that the Plea Withdrawal Statute “imposes a
jurisdictional bar on late-filed motions to withdraw guilty
pleas”). Therefore, Nicholls’ appeal presents the question of
whether his particular circumstances distinguish his case from
the controlling law explained above, particularly Gailey v. State,
2016 UT 35, 379 P.3d 1278.

¶25 According to Nicholls, the distinction that sets him apart
is the fact that, unlike the defendant in Gailey, he has already
sought and been denied postconviction relief. Nicholls focuses
on the fact that he was not represented by counsel during his
PCRA proceeding, a factual circumstance that the Gailey court
explicitly did not address. Id. ¶ 30 (“But unless and until Ms.
Gailey is denied the effective assistance of counsel in the PCRA
proceeding, her claim that it unconstitutionally denies her right
to an appeal is not ripe.”).

¶26 In essence, Nicholls’ argument follows this path: He
asserts that the ineffective assistance of his counsel during the
plea stage of his case induced him not only to plead guilty, but
also to immediately close the window for withdrawal of his plea.

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 State v. Nicholls

Because his right to withdraw the plea was immediately
extinguished and he could not appeal his conviction directly,
Nicholls instead attacked his guilty plea under the PCRA as
required by the Plea Withdrawal Statute. But because appellate
counsel is guaranteed to criminal defendants, and he was not
assisted by counsel during the PCRA process (which is
considered a civil proceeding), Nicholls claims that his
postconviction case did not satisfy the first right of appeal
guaranteed to him by the Constitution.

¶27 Thus, Nicholls contends that the ineffective assistance he
received at the plea stage also divested him of his right to the
assistance of counsel on appeal because his appellate review
consisted of a PCRA proceeding without appointed counsel.
This result, claims Nicholls, violated his constitutional right to
due process and, relatedly, the Sixth Amendment’s guarantee of
the assistance of appellate counsel. Accordingly, Nicholls asks us
to “remand this matter for the trial court to determine, on the
merits, whether an exception to [the Plea Withdrawal Statute]
applies” and whether he “should be permitted to move to
withdraw the [guilty] plea.”

¶28 To resolve Nicholls’ argument, we must determine
whether the Plea Withdrawal Statute is constitutional as applied
in his case. Only if the statute were unconstitutional in these
circumstances would we need to address whether Nicholls may
move to withdraw his plea.

B. The Plea Withdrawal Statute

¶29 Nicholls argues that the Plea Withdrawal Statute, which
requires that any challenge to a guilty plea made after
sentencing be pursued in a postconviction process under the
PCRA, is unconstitutional as applied. See State v. Herrera, 1999
UT 64, ¶ 4 n.2, 993 P.2d 854 (“An as-applied [constitutional]
challenge . . . succeeds if the challenger shows that the statute
was applied to him or her in an unconstitutional manner.”).

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Specifically, Nicholls asserts that the Plea Withdrawal Statute
runs afoul of due process and the Sixth Amendment right to
appellate counsel when, as happened here, “a defendant[,] as a
direct result of ineffective legal counsel[,] enters a plea and [is
immediately sentenced], thereby losing . . . the right to withdraw
the plea.”

¶30 Nicholls has not persuaded us that his circumstances set
this case apart from other similarly situated defendants. His
assertions throughout his legal proceedings have all been, in
essence, no more than variations on a central theme—attempts to
assail the validity of his guilty plea. Accordingly, his arguments
have generally focused on the conduct of his trial counsel during
the plea and sentencing phase of his case and, relatedly, the
constitutional validity of his plea. At bottom, he has continually
claimed that he received ineffective assistance of trial counsel at
the plea stage of his case and therefore could not have
knowingly and voluntarily waived his underlying constitutional
rights. E.g., Nicholls II, 2009 UT 12, ¶ 14, 203 P.3d 976 (“Nicholls
claims that the district court erred in dismissing his PCRA
petition because his plea was not knowing and voluntary . . . and
that he received ineffective assistance of counsel.”); Nicholls I,
2006 UT 76, ¶ 4, 148 P.3d 990 (“[T]he substance of the relief
sought is the withdrawal of Defendant’s guilty plea due to lack
of a knowing and voluntary waiver of rights.”). While Nicholls’
current appeal takes a slightly different tack than his previous
actions, his underlying complaint about the effectiveness of trial
counsel has not changed.

¶31 In State v. Rhinehart, the supreme court addressed a
similar challenge in an appeal brought by Nicholls’ co-
defendant. 2007 UT 61, 167 P.3d 1046. Rhinehart contended “that
the ineffectiveness of her trial counsel caused her to enter her
plea and to fail to bring a timely motion to withdraw it.” Id. ¶ 11.
As Nicholls does here, Rhinehart argued her counsel’s deficient
performance during the plea stage meant that “the requirement
contained in [the Plea Withdrawal Statute] that she move to

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withdraw her guilty plea as a condition to challenging her plea
on direct appeal unconstitutionally deprive[d] her of her right to
appeal.” Id. That is, she argued that “it was her lawyer’s fault
that she entered her plea and failed to bring a timely motion to
withdraw it.” Id. ¶ 12. Thus, Rhinehart took the position that the
Utah Constitution’s guarantee of a right of appeal required “that
defendants who seek leave to withdraw pleas based on claims of
ineffective assistance of counsel [ought to be] free of the
constraints of [the Plea Withdrawal Statute]” that normally force
a defendant to move to withdraw a plea before challenging it. Id.
¶ 14.

¶32 Our supreme court rejected that argument. It concluded
that Rhinehart’s proposed distinction—between defendants who
challenge a plea on ineffective assistance grounds versus those
who challenge it for some other reason—was “a phantom
classification.” Id. The court reasoned that, “[a]s a practical
matter, there is no alleged flaw in a guilty plea of a defendant
represented by counsel that could not be attributed in some way
to deficient representation.” Id. ¶ 13. And concerned that
recognizing such a distinction would result in an exception that
swallowed the rule, the court held that ineffective assistance of
counsel “can spare a defendant the consequences of her plea
only if the defendant makes out the same case required of every
defendant who seeks to withdraw a plea: that the plea was not
knowing and voluntary.” Id. The court concluded by holding
that “claims of ineffective assistance of counsel raised in the
context of challenges to the lawfulness of guilty pleas are
governed by [the Plea Withdrawal Statute]” and thus are
properly brought through postconviction proceedings under the
PCRA. Id. ¶ 14.

¶33 In his briefing, Nicholls attempts to distinguish his
situation from Rhinehart’s by pointing out that she was
sentenced over a month after entering her plea, while he was
sentenced immediately. Thus, Nicholls asserts that Rhinehart
had a window during which she could—but did not—move to

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withdraw her plea, whereas Nicholls never even had the
opportunity to consider it. But to the extent that such a
distinction would have opened the door to Nicholls’ current
argument, the supreme court’s decision in Gailey v. State closed
it. 2016 UT 35, ¶ 11, 379 P.3d 1278. There, the supreme court
reaffirmed “our precedent holding that the Plea Withdrawal
Statute is a procedural bar to a direct appeal post-sentencing,”
even when a defendant enters a plea and is sentenced
immediately. Id. Hence, Nicholls’ procedural position is not
legally distinguishable from Rhinehart and Gailey.

¶34 And those cases control our decision here. Under
established Utah law, “the Plea Withdrawal Statute bars direct
appeals once sentencing takes place,” id. ¶ 3, even when a
defendant raises “claims of ineffective assistance of counsel . . .
in the context of challenges to the lawfulness of guilty pleas,”
Rhinehart, 2007 UT 61, ¶ 14. Instead of taking a direct appeal, the
Plea Withdrawal Statute “requires defendants to pursue
postconviction relief” under the PCRA. Gailey, 2016 UT 35, ¶ 3.
Further, the Plea Withdrawal Statute is jurisdictional in nature.
State v. Ott, 2010 UT 1, ¶ 18, 247 P.3d 344 (“We have previously
held that failure to withdraw a guilty plea within the time frame
dictated by [the Plea Withdrawal Statute] deprives the trial court
and appellate courts of jurisdiction to review the validity of the
plea.”); State v. Merrill, 2005 UT 34, ¶ 17, 114 P.3d 585
(concluding that the Plea Withdrawal Statute “imposes a
jurisdictional bar on late-filed motions to withdraw guilty
pleas”). Our supreme court’s precedent is clear and unequivocal:
because Nicholls never moved to withdraw his plea and has
already been sentenced, neither this court nor the district court
have jurisdiction to consider Nicholls’ challenge to his guilty
plea in this case. Both courts are thus powerless to grant the
relief that Nicholls seeks. As the supreme court concluded ten
years ago, for Nicholls “[t]he Post-Conviction Remedies Act is
thus the proper, and only, avenue for relief.” Nicholls I, 2006 UT
76, ¶ 7, 148 P.3d 990.

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C. The PCRA

¶35 In his supplemental briefing, Nicholls essentially
recognizes that the supreme court’s decision in Gailey v. State,
2016 UT 35, 379 P.3d 1278, settled the main issue presented in his
appeal, namely that the Plea Withdrawal Statute’s jurisdictional
bar to direct appeal is constitutional even when a defendant
pleads guilty and is sentenced immediately. Instead of pursuing
that argument, the supplemental brief changes tack somewhat;
Nicholls now asks this court to create a new remedy “fashioned
after the procedural mechanisms of [Manning v. State]” that
applies to “very limited” circumstances like his, where a
defendant was unrepresented during his or her PCRA
proceeding.

¶36 The underlying premise of his supplemental argument is
related to the argument we discussed above: although Nicholls
was able to challenge the knowing and voluntary nature of his
guilty plea in a civil postconviction proceeding under the PCRA,
that proceeding was constitutionally insufficient because he did
not have the assistance of counsel and instead represented
himself. Based on the absence of counsel during the PCRA
process, Nicholls argues that the PCRA proceeding did not
satisfy his Sixth Amendment right to appellate counsel. To
remedy that deprivation, Nicholls asserts that he is entitled to
renew his challenge to his guilty plea through a direct appeal in
his original criminal case, thus entitling him to the assistance of
counsel and curing the Sixth Amendment problem.

¶37 To achieve that result, Nicholls asks us to fashion a new
Manning-like remedy, which we will call for the purposes of this
appeal a Nicholls motion. In his conceptualization, the Nicholls
motion would be “a procedural mechanism to distinguish
between those defendants who have truly waived the right to
contest their plea” and those defendants who “were
unconstitutionally deprived” of that right through ineffective
assistance of counsel. Under this reasoning, a Nicholls motion

20140629-CA 16 2017 UT App 60
 State v. Nicholls

should be made available because the supreme court’s opinion
in Gailey specifically left open the question of whether an
indigent defendant is entitled to appointed counsel in his PCRA
claim when the PCRA stands in for the constitutionally-
mandated first right of direct appeal. See Gailey, 2016 UT 35, ¶ 30
(“But unless and until Ms. Gailey is denied the effective
assistance of counsel in the PCRA proceeding, her claim that it
unconstitutionally denies her right to an appeal is not ripe.”).

¶38 Nicholls opines that Gailey does not control his appeal
because Nicholls, unlike the defendant in Gailey, has already had
a PCRA proceeding without counsel, and therefore the issue that
was not ripe for review in Gailey is ripe in his case. In Nicholls’
view, Utah’s statutory scheme—allowing a defendant to
simultaneously plead guilty, be sentenced, and lose the right to
direct appeal of the conviction—“automatically leads to the
immediate loss of the constitutional, fundamental right to legal
counsel and constitutional, fundamental right to a direct appeal
of one’s plea” in situations where ineffective assistance of
counsel undermined the plea itself. Accordingly, Nicholls
suggests that his proposed Nicholls motion can solve the problem
because it

is simple and intentionally limited in accordance
with Gailey v. State to those instances where the
PCRA has the most potential to eviscerate
constitutional rights:
1. The defendant claims ineffective
assistance of counsel in entering a plea and
as a condition of the plea receives an
immediate sentence.
2. The defendant has a right to legal counsel
in the negotiation, acceptance, and entry of
the plea, and
3. In exhausting the PCRA remedy, the
defendant’s request for legal counsel is not
granted.

20140629-CA 17 2017 UT App 60
 State v. Nicholls

(Footnotes omitted.)

¶39 Nicholls’ supplemental argument turns on the
postconviction process that he already had under the PCRA,
which culminated in Nicholls II, 2009 UT 12, 203 P.3d 976. In
those proceedings, Nicholls apparently went unrepresented by
counsel throughout. According to Nicholls, “[t]he remedy of
civil litigation without legal counsel is simply, constitutionally,
inadequate” as a substitute for direct appeal, the question left
open in Gailey. We agree that Nicholls’ broad point—defendants
are entitled to representation on appeal—finds support in the
law. “The Sixth Amendment right to counsel extends to a
defendant’s first appeal as of right. This right includes the right
to state-paid counsel for indigent defendants.” Gailey, 2016 UT
35, ¶ 26 (citing Pennsylvania v. Finley, 481 U.S. 551, 554 (1987)); see
also Utah Code Ann. § 77-32-304(1)(b) (LexisNexis 2012)
(mandating that an indigent’s assigned counsel shall “file any
first appeal of right or other remedy before or after conviction
that the assigned counsel considers to be in the interest of
justice”).

¶40 The same is not true under the PCRA, however. “Neither
the right to state-paid counsel nor the right to effective assistance
of counsel is constitutionally or statutorily guaranteed in
postconviction proceedings.” Gailey, 2016 UT 35, ¶ 28. According
to Nicholls, that is the crux of his case: because his only
substantive appeal came in the form of a PCRA proceeding, 3 a
proceeding that took place without the benefit of counsel, he is
entitled to make another attack on his plea (this time, with the
assistance of a lawyer).

3. Nicholls’ non-PCRA direct appeal efforts were dismissed on
jurisdictional grounds. Nicholls I, 2006 UT 76, ¶ 2, 148 P.3d 990
(affirming the district court’s decision to dismiss Nicholls’ plea
challenge for lack of subject matter jurisdiction).

20140629-CA 18 2017 UT App 60
 State v. Nicholls

¶41 We agree with Nicholls that this issue went unresolved in
Gailey. Indeed, part of the argument in Gailey rested on the fact
that the PCRA does not require appointment of state-paid
counsel to represent indigent defendants seeking postconviction
review. Specifically, Gailey asserted “that the Plea Withdrawal
Statute unconstitutionally infringe[d] on her right to an appeal
because it mandate[d] review under the PCRA, where there is no
guarantee of counsel.” Id.; see also Utah Code Ann. § 78B-9-109(1)
(LexisNexis 2012) (stating that “the court may, upon the request
of an indigent petitioner, appoint counsel on a pro bono basis to
represent the petitioner in the post-conviction court”). Gailey
argued that the appointment provision in the PCRA runs afoul
of the Sixth Amendment’s guarantee of state-provided counsel
on a defendant’s first appeal of right because it permits the court
to appoint counsel rather than requiring it to do so. See Gailey,
2016 UT 35, ¶¶ 26–28. As we have noted, however, the supreme
court declined to reach the issue because Gailey had not yet
sought relief under the PCRA; she therefore had not requested
(and thus had not been denied) assistance of counsel in a PCRA
action. Id. ¶ 23. Thus, the issue was not ripe for review and the
court explicitly left the question of whether a given defendant is
entitled to counsel in a PCRA action to be resolved in a future
case. Id. ¶ 31.

¶42 Nicholls essentially makes the same argument here,
except that he claims the issue is now ripe for review because he,
unlike Gailey, has had a PCRA proceeding in which he
requested but was not appointed counsel. While the combined
procedural history of this case and Nicholls’ PCRA case seems to
implicate the constitutional question that Gailey left unresolved,
we are not persuaded that his argument is reviewable by this
court for two reasons.

¶43 First, we have already determined that, under the Plea
Withdrawal Statute, Nicholls’ failure to timely move to
withdraw his plea divested this court of jurisdiction to review
the plea in this case. Second, even if this court could entertain the

20140629-CA 19 2017 UT App 60
 State v. Nicholls

question presented, Nicholls’ argument amounts to a collateral
attack on the supreme court’s decision in his previous PCRA
case. Here, as in Nicholls II, Nicholls’ claims are based on the
allegation that he received ineffective assistance of counsel
during the plea phase of his criminal case. The supreme court
reached the merits of that argument and, after thoroughly
analyzing his contentions regarding the poor quality of his
representation, unanimously held “that Nicholls [had] failed to
demonstrate that he received ineffective assistance of counsel.”
Nicholls II, 2009 UT 12, ¶ 41, 203 P.3d 976. Thus, the issue
Nicholls raises in this appeal has already been resolved against
him by a higher court.

¶44 For this court to grant Nicholls the relief he seeks—the
right to directly appeal his guilty plea based on ineffective
assistance of counsel—we would have to ignore the supreme
court’s clear holding in Nicholls II. We are not at liberty to do so.
“The general rule of law is that a judgment may not be drawn in
question in a collateral proceeding . . . .” Olsen v. Board of Educ. of
Granite School Dist., 571 P.2d 1336, 1338 (Utah 1977). “A collateral
attack is an attempt to avoid the binding force of a judgment in a
proceeding not instituted for the purpose of correcting,
modifying, or vacating the judgment, but in order to obtain some
specific relief which the judgment currently stands as a bar
against.” Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005);
accord Olsen, 571 P.2d at 1338 (“Where a judgment is attacked in
other ways than by proceedings in the original action to have it
vacated or revised or modified . . . the attack is a ‘Collateral
Attack.’” (quoting Restatement (First) of Judgments § 11 (1942))).

¶45 Nicholls II was a separate postconviction proceeding
under the PCRA; it did not arise as a direct appeal in the original
criminal action. Although, by the nature of the PCRA, the
operative facts and record in Nicholls II came from the
underlying criminal case, the two cases were undoubtedly
different: one was civil in nature, the other criminal. The State
initiated the murder case by filing a criminal information, while

20140629-CA 20 2017 UT App 60
 State v. Nicholls

Nicholls instituted the postconviction case by filing a separate
civil action. Importantly, the instant appeal arose from denial of
a Manning motion filed in Nicholls’ original criminal case, so this
case is wholly distinct from the civil PCRA proceeding that
resulted in Nicholls II. Because Nicholls asks for relief that would
allow him to relitigate whether his trial counsel was ineffective,
his argument “is an attempt to avoid the binding force of a
judgment” rendered in a different case, Nicholls II. See Browning,
165 S.W.3d at 346. Put differently, the supreme court’s decision
in Nicholls II “currently stands as a bar against” the “specific
relief” that Nicholls requests in this case. See id.

¶46 For these reasons, we conclude that the relief requested in
Nicholls’ supplemental briefing and the arguments supporting
that relief are not properly before us because we lack jurisdiction
to consider them on direct appeal. Even if they were properly
before us, the arguments present an impermissible collateral
attack on a prior judgment that our supreme court upheld in
Nicholls II, because his arguments necessarily implicate the
continuing validity of a final decision against him from a
different case in a different forum on the same questions. Indeed,
his relief does not stem from Manning or a direct appeal of his
conviction at all. See Gailey v. State, 2016 UT 35, ¶ 20, 379 P.3d
1278 (reaffirming that, “after sentencing is entered, a defendant
may not file a motion to withdraw a guilty plea or directly
appeal the plea, but must pursue postconviction relief through
the PCRA”). Rather, any potential challenge seems to be limited
to a further proceeding under the PCRA, either by seeking to
reopen Nicholls II—the proceeding that he now claims was
constitutionally insufficient because he lacked the assistance of
counsel—or by instituting a new postconviction proceeding
based on the Gailey decision. 4

4. Whether such an approach could be successful is a question
we do not reach here. Nor do we consider whether other
(continued…)

20140629-CA 21 2017 UT App 60
 State v. Nicholls

¶47 In sum, the Plea Withdrawal Statute is constitutional on
its face and as applied to Nicholls. Although the facts and
procedural history of this case combined with Nicholls’ PCRA
case may implicate the constitutional question that Gailey v. State
left unresolved, we cannot resolve the question here because we
lack jurisdiction to consider it, and it is a collateral attack on
Nicholls II in any event. We therefore decline to create a new
Nicholls motion to allow Nicholls to challenge his guilty plea. 5

II. Nicholls’ Request to Appeal His Sentence

¶48 Nicholls also argues that he is entitled to a “determination
on the merits as to whether [he] was deprived of his right to a
direct appeal of his sentence.” This argument asserts that
Manning v. State, 2005 UT 61, 122 P.3d 628, grants him the ability
to reopen the time to appeal his sentence with the assistance of
counsel because his situation satisfies the Manning criteria.

¶49 Although Manning is best known for allowing a
defendant to reinstate the right to appeal a conviction that was
lost through no fault of his own, the case itself involved a
procedural circumstance like Nicholls’, where a defendant
sought to reinstate a right to appeal her guilty plea. While the

(…continued)
avenues of relief might be available, such as a petition for
extraordinary relief. Those questions are not before us.

5. After the supreme court issued its decision in Gailey v. State,
2016 UT 35, 379 P.3d 1278, Nicholls moved to supplement the
record on appeal with various materials, including the record
from his PCRA case, Nicholls II, 2009 UT 12, 203 P.3d 976. We
deferred ruling on the motion pending our consideration of the
case. Because we have resolved Nicholls’ appeal on grounds that
do not implicate the materials he requested, we deny the motion
as moot.

20140629-CA 22 2017 UT App 60
 State v. Nicholls

court determined that Manning had no right to appeal the plea
because she had not timely moved to withdraw it, the court
nevertheless held that a defendant retains the right to appeal his
or her sentence even when he or she can no longer challenge the
plea. Id. ¶ 37. To prevail on a Manning motion, a “defendant
must demonstrate by a preponderance of evidence,” id. ¶ 32
(internal quotation marks omitted), “that he has been
unconstitutionally deprived, through no fault of his own, of his
right to appeal,” id. ¶ 31. Circumstances under which a
defendant can prevail on a Manning claim include where:

(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; or (3)
the court or the defendant’s attorney failed to
properly advise defendant of the right to appeal.

Id. (citations omitted).

¶50 According to Nicholls, he “meets all three” Manning
criteria. However, while Nicholls analyzes the Manning criteria
in his opening brief, he never states that his arguments are
meant to resurrect the right to appeal his sentence. Rather, his
arguments focus exclusively on his desire to reinstate his right to
challenge his plea. Indeed, Nicholls’ opening brief mentions his
sentence as an object of appeal only in passing; he states in
conclusion on the brief’s last page that he “was deprived of his
right to a direct appeal of his sentence.” At no point in the
argument section does Nicholls mention concerns about his
sentence as a potential subject of the appeal he seeks to reinstate.

¶51 For instance, Nicholls argues that he “was terrorized and
harassed into taking a plea that day.” (Emphasis omitted.) He
also argues that he “was wrongfully advised” when he “argued
with [counsel] as to why [he] was taking a plea deal without a

20140629-CA 23 2017 UT App 60
 State v. Nicholls

trial.” Even if we assume both allegations are true, these
arguments pertain to trial counsel’s performance before entry of
Nicholls’ plea and sentencing—they do not show that Nicholls
was “unconstitutionally deprived, through no fault of his own,
of his right to appeal” his sentence. See id. ¶ 31; see also State v.
Rhinehart, 2007 UT 61, ¶ 15, 167 P.3d 1046 (explaining that, “by
pleading guilty, the defendant is deemed to have admitted all of
the essential elements of the crime charged and thereby waives
all nonjurisdictional defects, including alleged pre-plea
constitutional violations” (citation and internal quotation marks
omitted)). 6

¶52 Nicholls also alleges that “[trial] counsel promised their
assistance on the direct appeal, but after sentencing, went dark.”
On its face, this allegation could broadly encompass Manning
relief directed at a sentencing appeal. However, in support
Nicholls points to his initial postconviction filing with the
sentencing court, wherein he stated, “I was trying to dissuade
my attorneys, telling them that I couldn’t say what was in the
DA’ s prepared statement for me—they left saying they would
change it. I had given no authority to make such a [plea] deal.”
Like his other arguments, it is clear from context that Nicholls’
complaints—in his opening brief as elsewhere—revolve around
his plea and resulting conviction, not his sentence.

¶53 In his reply brief, Nicholls attempts to bolster his
argument by directly addressing his desire to appeal his
sentence. However, “[i]t is well settled that issues raised by an
appellant in the reply brief that were not presented in the
opening brief are considered waived and will not be considered

6. On this point, as the supreme court noted in Nicholls II,
“Nicholls was asked specifically about the quality of legal
counsel he received” at least four times during the plea colloquy,
and he “expressed satisfaction with his counsel” each time. 2009
UT 12, ¶ 39, 203 P.3d 976.

20140629-CA 24 2017 UT App 60
 State v. Nicholls

by the appellate court.” Allen v. Friel, 2008 UT 56, ¶ 8, 194 P.3d
903 (citation and internal quotation marks omitted). And even if
we set the briefing issue aside and assume that Nicholls has
satisfied one of the Manning criterion with regard to appealing
his sentence, he still must show prejudice. “Claims for
reinstatement of the right to appeal [under Manning] are subject
to harmless error review.” State v. Collins, 2014 UT 61, ¶ 2, 342
P.3d 789. “To establish prejudice, all a defendant must show is
that he would have appealed ‘but for’ the court’s and his
attorney’s failure to properly inform him of the right to appeal.”
Id. ¶ 48.

¶54 Here, Nicholls has not demonstrated in any of his briefing
that he would have appealed his sentence but for the alleged
ineffective assistance of counsel he received, and he has thus not
met his burden to show prejudice. We therefore conclude that,
assuming an error occurred at all, it was harmless, “and a
harmless error does not require reversal.” See Proctor v. Costco
Wholesale Corp., 2013 UT App 226, ¶ 9, 311 P.3d 564. We affirm
the district court’s dismissal of Nicholls’ Manning motion, and
we therefore do not address Nicholls’ argument that the district
court erred by not appointing replacement counsel in the
proceedings below.

CONCLUSION

¶55 In sum, we conclude that the Plea Withdrawal Statute
was constitutional as applied to Nicholls. Although he has raised
colorable claims about the process he received in his civil
postconviction proceeding under the PCRA, those claims are not
properly before this court in this appeal and must be addressed
through an alternative mechanism. We also conclude that
Nicholls did not meet his burden to show that he is entitled to
reinstate the time to appeal his sentence. Affirmed.

20140629-CA 25 2017 UT App 60