State v. Stewart

2018 UT App 151

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
CALVIN PAUL STEWART,
Appellant.

Opinion
No. 20160611-CA
Filed August 16, 2018

Fourth District Court, Provo Department
The Honorable Lynn W. Davis
No. 011403597

Douglas J. Thompson, Margaret P. Lindsay, and
Leah Jordana Aston, Attorneys for Appellant
Sean D. Reyes and Jeffrey D. Mann, Attorneys
for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which
JUDGES JILL M. POHLMAN and RYAN M. HARRIS concurred.

TOOMEY, Judge:

¶1 Calvin Paul Stewart was convicted in 2003 of seventeen
second and third degree felonies. Twelve years later, he filed a
motion to reinstate the period for filing a direct appeal, which
the court denied. He appeals the denial of that motion, arguing
that a criminal defendant’s right to appeal requires that the
defendant be informed of the right to counsel on appeal. We
agree and therefore reverse.
 State v. Stewart

BACKGROUND

¶2 In 2001, the State charged Stewart with multiple securities
violations, including securities fraud and the sale of unregistered
securities. He was initially represented by private counsel, but
counsel later withdrew because Stewart could not afford to pay
him. The court appointed Stewart a public defender, but
ultimately Stewart decided to represent himself at trial. Stewart
was convicted and sentenced to prison on seventeen counts,
with each sentence to run consecutively.

¶3 With the help of a non-attorney friend, Stewart filed a
notice of appeal and a docketing statement, and this court set a
briefing schedule. Stewart expected his friend to help file a brief,
but the friend declined to do so when Stewart could not pay
him. Stewart failed to file a brief by the deadline, and this court
dismissed his appeal.

¶4 Over the next decade, Stewart filed various motions for
relief, including a motion to appoint counsel, a motion to correct
his sentence, and a motion for relief from what he characterized
as a void judgment. The district court denied each of these
motions. On one occasion, he appealed one of these rulings, and
this court affirmed the district court’s decision. See State v.
Stewart, 2010 UT App 367U (per curiam).

¶5 In 2015, Stewart filed a pro se “Motion to Reinstate Period
for Filing Direct Appeal” under rule 4(f) of the Utah Rules of
Appellate Procedure, which is the motion at issue in this appeal.
Stewart also filed a related motion to appoint counsel. The court
appointed a public defender to represent Stewart and, after
counsel filed an amended motion to reinstate Stewart’s direct
appeal, the court held an evidentiary hearing in early 2016.

¶6 At the hearing, Stewart testified that when the court
released the appointed public defender as his 2003 trial was

20160611-CA 2 2018 UT App 151
 State v. Stewart

approaching, the judge informed him that he would have to find
new counsel by a specific date or proceed without
representation. Stewart understood this to mean that if he chose
not to have appointed counsel at trial, he could not have
appointed counsel on appeal. Stewart testified that the court did
not inform him of the right to counsel on appeal during his trial
or at his sentencing hearing, and that had he known, he would
have requested counsel to assist with his appeal.

¶7 Stewart’s counsel argued that Stewart was deprived of his
right to appeal under rule 4 of the Utah Rules of Appellate
Procedure. Counsel argued that even though Stewart filed a
notice of appeal, he was never informed of his constitutional
right to counsel on appeal, and without the help of counsel, he
was unable to file a brief to perfect his appeal. Counsel argued
that, because Stewart did not know and was not informed he
was entitled to appellate counsel, the time period for Stewart to
file an appeal should be reinstated.

¶8 The district court denied Stewart’s motion for three
reasons. First, Stewart’s “requests to represent himself in his
2003 jury trial and sentencing” 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 briefing
deadline caused his appeal to be dismissed. Third, Stewart’s
“mere claim” that he was not informed of his right to counsel
did not meet the threshold burden of proof in showing he had
been deprived of the right to appeal. Stewart appeals.

ISSUE AND STANDARD OF REVIEW

¶9 Stewart contends the district court erred by denying his
motion to reinstate the time to file a direct appeal. We review the
court’s legal conclusion that Stewart was not deprived of his

20160611-CA 3 2018 UT App 151
 State v. Stewart

right to appeal for correctness and its underlying factual
findings for clear error. State v. Kabor, 2013 UT App 12, ¶ 8, 295
P.3d 193.

ANALYSIS

I. Stewart Was Deprived of the Meaningful Right to Appeal.

¶10 Stewart’s only contention on appeal is that the district
court erred in failing to reinstate the time to file his direct appeal
under rule 4(f) of the Utah Rules of Appellate Procedure. Stewart
argues that, under the Utah and United States constitutions, a
criminal defendant must be informed both that he has a right to
appeal his conviction and that he has the right to counsel on
appeal. He argues that, because he was not advised of his right
to counsel on appeal, he was effectively deprived of his right to
appeal. 1

1. The State argues that Stewart was not deprived of his right to
appeal, because he filed a notice of appeal. The State cites State v.
Rees, 2005 UT 69, 125 P.3d 874, which states that “the act of
‘proceeding’ with an appeal encompass[es] filing a notice of
appeal, not more.” Id. ¶ 18; see also Manning v. State, 2005 UT 61,
¶ 31, 122 P.3d 628 (outlining some of the circumstances in which
a defendant can prove “that he has been unconstitutionally
deprived, through no fault of his own, of [the] right to appeal”).
Because Stewart filed a notice of appeal, the State argues he was
therefore not “prevented in some meaningful way from
proceeding” with his appeal. See Rees, 2005 UT 69, ¶ 17
(quotation simplified); accord State v. Collins, 2014 UT 61, ¶ 42,
342 P.3d 789. But Rees is inapplicable here because Rees did not
contemplate a situation in which a defendant was denied the
right to appeal by being denied the right to counsel. Indeed, in
(continued…)

20160611-CA 4 2018 UT App 151
 State v. Stewart

A. A Defendant’s Right to Appeal Includes Being Informed
of the Right to Counsel on Appeal.

¶11 The Utah Constitution guarantees the right to appeal in
all criminal prosecutions. Utah Const. art. I, § 12. “This shows
that the drafters of our constitution considered the right of
appeal essential to a fair criminal proceeding. Rights guaranteed
by our state constitution are to be carefully protected by the
courts. We will not permit them to be lightly forfeited.” State v.
Tuttle, 713 P.2d 703, 704 (Utah 1985). To protect this right,
rule 4(f) allows a court to reinstate the thirty-day period for filing
a direct appeal for a defendant who “was deprived of the right
to appeal.” Utah R. App. P. 4(f). Manning v. State, 2005 UT 61,
122 P.3d 628, which led to the promulgation of rule 4(f), 2
explains that a defendant has been denied the right to appeal
when he “has been prevented in some meaningful way from
proceeding with a first appeal of right.” Id. ¶ 26 (quotation
simplified); see id. ¶ 24 (explaining that when a defendant is
“unconstitutionally denied his [or her] right to appeal” there
must be a “means of regaining that right”). Manning outlines
several possible circumstances that would demonstrate that a
defendant “ha[d] been unconstitutionally deprived, through no
fault of his own, of [the] right to appeal,” including, among

(…continued)
Rees, the defendant was represented by counsel, but alleged that
his counsel was ineffective. See 2005 UT 69, ¶ 9. The court in Rees
did not address whether the right to appeal includes the right to
be represented by counsel, or specifically whether a defendant
must be informed of the right to counsel on appeal.

2. The Advisory Committee Note to rule 4 of the Utah Rules of
Appellate Procedure explains that “[p]aragraph (f) was adopted
to implement the holding and procedure outlined in Manning v.
State, 2005 UT 61, 122 P.3d 628.”

20160611-CA 5 2018 UT App 151
 State v. Stewart

others, situations in which “the court or the defendant’s attorney
failed to properly advise defendant of the right to appeal.” Id.
¶ 31.

¶12 The Utah Constitution also requires that an accused “be
provided with the assistance of counsel at every important stage
of the proceedings against him.” Ford v. State, 2008 UT 66, ¶ 16,
199 P.3d 892 (quotation simplified). And our supreme court has
recognized that the assistance of counsel is crucial to an appeal.
See Manning, 2005 UT 61, ¶ 16 (“[T]he right to representation is
an integral part of the right to appeal . . . .”). As the Supreme
Court of the United States has stated,

The assistance of appellate counsel in preparing
and submitting a brief to the appellate court which
defines the legal principles upon which the claims
of error are based and which designates and
interprets the relevant portions of the trial
transcript may well be of substantial benefit to the
defendant. This advantage may not be denied to a
criminal defendant, solely because of his
indigency, on the only appeal which the State
affords him as a matter of right.

Swenson v. Bosler, 386 U.S. 258, 259 (1967) (per curiam); see also
Douglas v. California, 372 U.S. 353, 356–58 (1963) (holding that the
right to the assistance of counsel guaranteed by the Sixth
Amendment extends through appeal).

¶13 A defendant must be aware of this right in order to
exercise it. At the trial level, a defendant may only “knowingly
and voluntarily” waive the right to counsel. See State v. Graham,
2012 UT App 332, ¶ 19, 291 P.3d 243 (“Because a defendant’s
choice of self-representation often results in detrimental
consequences to the defendant, a trial court must be vigilant to
assure that the choice is freely and expressly made with eyes

20160611-CA 6 2018 UT App 151
 State v. Stewart

open.” (quotation simplified)). Though a defendant may be
informed of his right to counsel at the trial level, we cannot
assume that he is aware that he is also entitled to the assistance
of counsel on appeal unless he has been informed. If an indigent
defendant is not made aware of the right to counsel, he “has
been prevented in some meaningful way from proceeding with a
first appeal of right.” See Manning, 2005 UT 61, ¶ 26 (quotation
simplified). As other courts have recognized, “[t]he right to
appeal at the expense of the state is mere illusion if the convicted
indigent defendant does not know such right exists.” United
States ex rel. Smith v. McMann, 417 F.2d 648, 654 (2d Cir. 1969); see
id. (“We think the only practical, logical and fair interpretation to
be given to Douglas v. California[, 372 U.S. 353 (1963),] is that it
imposes upon the state a duty to warn every person convicted of
[a] crime of his right to appeal and his right to prosecute his
appeal without expense to him by counsel appointed by the
state.”); see also United States v. Aloi, 9 F.3d 438, 444 (6th Cir. 1993)
(reiterating the constitutional requirement to be advised of
appellate rights, including the right to counsel on appeal). 3

3. See also United States ex rel. Singleton v. Woods, 440 F.2d 835, 836
(7th Cir. 1971) (determining that the failure to advise an indigent
defendant of his right to court-appointed counsel on appeal
violated the Equal Protection Clause of the Fourteenth
Amendment and the Sixth Amendment right to counsel); Nichols
v. Wainwright, 243 So. 2d 430, 431 (Fla. Dist. Ct. App. 1971)
(requiring that an indigent defendant, who has indicated the
desire to appeal, be informed of the right to counsel on appeal);
Cochran v. State, 315 S.E.2d 653, 654 (Ga. 1984) (requiring a
defendant to be “made aware of his right to counsel on appeal
and the dangers of proceeding without counsel”); State v. Allen,
239 A.2d 675, 677 (N.J. Super. Ct. Law Div. 1968) (concluding
that “both the Fourteenth and Sixth Amendments require one to
be advised of his state-created right of appeal in addition to the
(continued…)

20160611-CA 7 2018 UT App 151
 State v. Stewart

¶14 We therefore conclude that a defendant is entitled to be
informed of his right to counsel on appeal, and this right is
inherent in a defendant’s right to an appeal. 4

B. The District Court Erred By Denying Stewart’s Motion to
Reinstate the Time for Direct Appeal.

¶15 The district court gave three reasons for denying
Stewart’s motion to reinstate the time period to file a direct
appeal. First, it determined it need not reach the issue of whether
the right to appeal requires a defendant to be notified of the right
to counsel on appeal, because Stewart knowingly or
constructively waived his right to counsel on appeal by
repeatedly requesting to represent himself at trial and sentencing
and then proceeding pro se in his appeal.

¶16 A defendant does not constructively waive the right to an
attorney on appeal by opting to represent himself at the trial
level, and the State does not cite any controlling authority to the
contrary. Moreover, Stewart’s “choice” to proceed pro se on

(…continued)
right to counsel on an appeal”); cf. Sibley v. State, 775 So. 2d 235,
241–43 (Ala. Crim. App. 1996) (requiring waiver of the
constitutional right to counsel on appeal to be knowing and
intelligent); Casner v. State, 155 P.3d 1202, 1206–07 (Kan. Ct. App.
2007) (determining the defendant was not fully informed of his
rights on appeal when he was told he could appeal but was not
informed he had the right to an attorney on appeal).

4. Rule 22(c)(1) of the Utah Rules of Criminal Procedure was
amended effective May 1, 2018, to require the sentencing court to
“advise the defendant of defendant’s right to appeal . . . and the
right to retain counsel or have counsel appointed by the court if
indigent.”

20160611-CA 8 2018 UT App 151
 State v. Stewart

appeal did not constitute a waiver of his right to counsel on
appeal. We agree with Stewart that to effectively “choose” to
represent himself instead of requesting counsel requires
knowledge that he is entitled to have counsel appointed. Though
the court stated that Stewart “repeatedly was notified of his right
to counsel,” those notifications occurred at the trial level, with
respect to the trial, and there is no evidence the court informed
him he was entitled to the assistance of counsel on appeal. See
infra ¶ 22. We therefore conclude the court erred in determining
that Stewart constructively waived this right on appeal.

¶17 Second, the court stated that Stewart’s motion failed
under Manning. Manning allows a court to “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 [the] right to appeal.” Manning v. State, 2005 UT 61,
¶ 31, 122 P.3d 628 (emphasis added). In this case, the district
court determined that “due to a clear pattern of conduct in this
case, Stewart [had] created, in his own actions, his own fault in
failing to meet the briefing deadline set forth by the Court of
Appeal[s],” and so Stewart’s appeal “was ultimately dismissed
. . . due to Stewart’s own failure to respond.”

¶18 But we have determined that failure to inform a
defendant of the right to counsel on appeal does not “properly
advise” the defendant, and thereby unconstitutionally deprives
the defendant, of the right to appeal. See id.; see also supra ¶ 14.
Through no fault of his own, Stewart was not informed of the
right to counsel and was, in that respect, effectively deprived of
the right to appeal. Although Stewart filed a pro se notice of
appeal and docketing statement, he cannot be faulted for not
perfecting his appeal by filing a timely brief where he was
unaware of his right to be assisted by counsel on appeal. See
Swenson v. Bosler, 386 U.S. 258, 259 (1967) (“The assistance of
appellate counsel in preparing and submitting a brief to the
appellate court . . . may well be of substantial benefit to the

20160611-CA 9 2018 UT App 151
 State v. Stewart

defendant. This advantage may not be denied to a criminal
defendant, solely because of his indigency . . . .”). Stewart
testified that he would have requested counsel if he had been
properly informed, and the State noted counsel would have been
appointed had he requested it. Stewart thus missed the deadline
for filing his appellate brief because he was not assigned
appellate counsel who would have helped him navigate the
procedural requirements of an appeal and who would have
prepared and submitted a brief on his behalf. We therefore
disagree with the district court that Stewart created “his own
fault” by missing the briefing deadline set by this court.

¶19 Third, the district court stated there was insufficient
evidence that Stewart had not been deprived of the right to
appeal. Specifically, the court ruled that a “mere claim by Mr.
Stewart, 11 years after sentencing, that he is quite sure the
sentencing judge did not inform [him] of his right to the
appointment of appellate counsel is simply insufficient” to meet
the preponderance-of-the-evidence standard required by rule
4(f) of the Utah Rules of Appellate Procedure.

¶20 We give deference to the court’s factual findings and will
“not overturn them unless they are clearly erroneous.” State v.
Kabor, 2013 UT App 12, ¶ 8, 295 P.3d 193. Rule 4(f) of the Utah
Rules of Appellate Procedure requires a district court to “enter
an order reinstating the time for appeal” if it “finds by a
preponderance of the evidence that the defendant has
demonstrated that the defendant was deprived of the right to
appeal.” Under this standard, “the court needs only to balance
the evidence, using discretion to weigh its importance and
credibility, and decide whether the [defendant] has more likely
than not” been deprived of the right to appeal. See State v.
Archuleta, 812 P.2d 80, 82–83 (Utah Ct. App. 1991) (outlining the
preponderance-of-the-evidence standard of proof in the context
of a probation violation).

20160611-CA 10 2018 UT App 151
 State v. Stewart

¶21 Here, Stewart testified the district court did not “inform
[him] about [his] right to a have an attorney represent [him] on
appeal,” and that he would have asked for one to be appointed
had he been informed of that right. Admittedly, his testimony
was self-serving and not detailed. Stewart stated he could not
“remember a whole lot of exactly what [the trial judge] asked
[him],” and he did not have a “full memory of everything” that
was said to him from the bench. He testified that he wrote down
“certain things [he] wanted to remember” in a notebook and that
whether the court informed him of his right to an attorney on
appeal was “a fact that [he would] remember”: the court did not.
There are no transcripts from the sentencing hearing, 5 and the
State offered no evidence suggesting Stewart was informed of
his right to appellate counsel.

¶22 Although the district court has discretion to weigh the
importance and the credibility of the evidence, it characterized
Stewart’s testimony as a “mere claim” and stated the “lack of
evidence” did not meet the preponderance standard of proof.
We disagree. Stewart’s uncontroverted testimony was evidence
that he was not informed of his right to appellate counsel.
Stewart bore the burden of proof and offered his testimony as
evidence. No other evidence was offered, either by Stewart or by
the State, and the court did not make findings that Stewart’s
testimony was incredible or unreliable. 6 This means that the only

5. Though Stewart filed a pro se motion requesting “the entire
transcript of all recorded hearings,” only the transcripts from the
two-day jury trial were provided, and the recording of the
sentencing hearing is no longer available.

6. The court stated that “[a] mere claim by Mr. Stewart, 11 years
after sentencing, that he is quite sure the sentencing judge did
not inform [him] of his right to the appointment of appellate
counsel is simply insufficient” to meet the preponderance-of-the-
(continued…)

20160611-CA 11 2018 UT App 151
 State v. Stewart

evidence presented tended to prove that Stewart was not
informed of the right to counsel on appeal, thus making it “more
likely than not” that Stewart was not so informed. Because the
State offered no evidence to the contrary and because the court
did not find that the evidence presented was incredible or
unreliable, the court clearly erred in determining Stewart did not
demonstrate by a preponderance of the evidence that he was not
informed of the right to counsel on appeal.

¶23 Because the three reasons for the court’s determining that
Stewart was not deprived of his right to appeal are flawed, we
conclude it erred in making this determination. Thus, we reverse
its decision.

CONCLUSION

¶24 We conclude that a defendant is unconstitutionally
deprived of his right to appeal if he is not informed that he has
the right to the assistance of counsel on appeal. We also conclude
Stewart did not constructively waive his right to counsel on
appeal, did not create his own fault by missing the briefing
deadline, and provided sufficient evidence to meet the
preponderance standard under rule 4(f) of the Utah Rules of
Appellate Procedure. We therefore reverse the district court’s
decision and remand for the court to reinstate the period for
Stewart to file a direct appeal.

(…continued)
evidence standard, and that this “lack of evidence” was critical
and dispositive. The court’s statement suggests Stewart needed
to provide more evidence to meet the preponderance standard,
not that the court found Stewart’s testimony to be incredible or
unreliable.

20160611-CA 12 2018 UT App 151