2023 UT App 113
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
KEVIN RAMEY BLANKE,
Appellant.
Opinion
No. 20220104-CA
Filed September 28, 2023
Third District Court, Salt Lake Department
The Honorable Amy J. Oliver
No. 021908449
Herschel Bullen, Attorney for Appellant
Sean D. Reyes and Lindsey L. Wheeler,
Attorneys for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
FORSTER concurred.
MORTENSEN, Judge:
¶1 In 2002, Kevin Ramey Blanke pled guilty to attempted
child kidnapping. He reaffirmed this plea in February 2003 and
was sentenced to an indefinite term of three years to life in May
2003. In 2016, Blanke moved to correct his sentence, claiming the
sentence was illegal. The motion was denied, and that denial was
affirmed on appeal. Then in 2021, Blanke moved to have his time
to appeal as a matter of right reinstated, claiming that he was not
informed that he could appeal his sentence. The district court
denied this motion, and Blanke now appeals. We affirm.
State v. Blanke
BACKGROUND
¶2 In June 2002, Blanke came across a child, Elisabeth, 1 and
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her sister playing near a park. See Blanke v. Utah Board of Pardons
& Parole, 2020 UT 39, ¶ 3, 467 P.3d 850. Blanke offered to pay them
if they would go with him. Id. The sister declined, but Elisabeth
left with Blanke. Id. Blanke then took Elisabeth to get ice cream,
but when she got scared and asked to go home, Blanke returned
her to the park. Id. Elisabeth, who had been gone about an hour
and a half, was taken to the hospital, but an examination revealed
no physical appearance of abuse. Id. Nor did Elisabeth claim that
she had been harmed. Id. Blanke was charged with attempted
child kidnapping. Id.
¶3 In December 2002, Blanke, represented by counsel
(Counsel 1), entered into a plea agreement with the State. He
acknowledged that his guilty plea would waive his “right to
appeal the conviction and sentence.” The district court engaged in
a lengthy colloquy with Blanke, including giving Blanke and his
attorney extra time to discuss the plea and the effect of waiving
his appellate rights. The plea agreement also indicated that the
State would “allow” Blanke to plead guilty to a second-degree
felony in another kidnapping case. The reduction in that case was
identified as a “strong consideration” in the plea agreement and
was characterized as “part of the total package.” After discussing
the matter with Counsel 1, Blanke agreed to the offer and pled
guilty to attempted child kidnapping, a first-degree felony.
¶4 Within a few weeks, Blanke filed a pro se motion to
withdraw his guilty plea. First, he alleged that he was depressed,
suffering from panic attacks, and unmedicated, asserting that it
was apparent in the courtroom that he “was having problems”
arising from these conditions. Second, he claimed that Counsel 1
1. We adopt the pseudonym used in previous proceedings.
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State v. Blanke
had pressured him into agreeing to the plea and had not made an
effort to develop a robust defense.
¶5 The court appointed new counsel (Counsel 2), and at a
status hearing in February 2003, it appears that Blanke retracted
his motion to withdraw his plea. 2 The minute entry for the
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hearing indicates that Blanke was present at the hearing (along
with Counsel 2), that he pled guilty to attempted child
kidnapping, and that he was sentenced in May 2003 to an
indefinite term of three years to life.
¶6 In March 2016, Blanke filed a pro se motion to correct an
illegal sentence under rule 22(e) of the Utah Rules of Criminal
Procedure. Blanke argued that the court erred by sentencing him
“when an unresolved motion to withdraw [his] plea was still
before the court.” See Utah Code § 77-13-6(2)(b) (“A request to
withdraw a plea of guilty . . . shall be made by motion before
sentence is announced. Sentence may not be announced unless
2. Blanke has neither provided a transcript of this hearing nor
attempted to reconstruct it. If Blanke had wanted to include an
accounting of the status conference as part of the record on
appeal, he had a means to do so. See Utah R. App. P. 11(e) (“If no
report of the evidence or proceedings at a hearing or trial was
made, or if a transcript is unavailable, . . . the appellant may
prepare a statement of the evidence or proceedings from the best
available means, including recollection. The statement must be
served on the appellee, who may serve objections or propose
amendments within 14 days after service. The statement and any
objections or proposed amendments must be submitted to the
trial court for resolution, and the trial court clerk will conform the
record to the trial court’s resolution.”). Except for expanding the
time for the appellee to object by four days, the current rule is
substantially the same as the rule in effect at the time Blanke
submitted his briefing on appeal. Compare id. R. 11(e) (2023), with
id. R. 11(g) (2020).
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State v. Blanke
the motion is denied.”). The district court denied the motion,
explaining that after Blanke filed his motion to withdraw his
guilty plea, he again pled guilty at the February 2003 status
conference prior to sentencing in May 2003, rendering his motion
to withdraw his plea moot. The court clarified that Blanke’s
motion to withdraw addressed only the guilty plea he entered in
December 2002, not the plea he entered in February 2003.
“Accordingly,” the court summarized, “no Motion to Withdraw
Guilty Plea remained pending with regard to” Blanke’s February
2003 plea “and the Court properly sentenced” Blanke in May
2003.
¶7 Blanke appealed, and this court subsequently affirmed the
district court’s order, stating,
During the course of the [February 2003] hearing,
Blanke, through counsel, reaffirmed his guilty plea,
with the district court agreeing to take on an
additional case in which Blanke was involved. In so
doing, Blanke implicitly withdrew his motion to
withdraw his plea. Thus, this motion was no longer
pending before the district court. . . . Blanke never
again raised his request to withdraw his plea
despite not being sentenced until three months after
he reaffirmed his plea. Accordingly, the district
court did not err in denying the motion to correct an
illegal sentence because no motion to withdraw his
plea was pending at the time he was sentenced.
Blanke did not seek certiorari review of this court’s order.
¶8 The current proceedings commenced in January 2021 with
Blanke’s pro se motion to reinstate time to file a direct appeal
pursuant to rule 4(f) of the Utah Rules of Appellate Procedure.
Blanke asserted that neither the sentencing court nor either of his
attorneys informed him of his right to appeal and that, instead,
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State v. Blanke
each told Blanke only that he would forfeit his right to direct
appeal by entering his guilty plea. The court appointed Blanke
new counsel (Counsel 3), who subsequently filed an amended
reinstatement motion, again asserting that Blanke had not been
advised of his right to appeal.
¶9 At the evidentiary hearing in November 2021, the district
court requested “clarification” as to whether Blanke was “asking
for the direct appeal right to be reinstated for his conviction or his
sentence or both.” Counsel 3 said it was both, clarifying that
Counsel 2 retracted Blanke’s motion to withdraw his guilty plea
without obtaining Blanke’s permission and that the sentencing
court, Counsel 1, and Counsel 2 failed to tell him of his right to
appeal his sentence.
¶10 On direct examination, Blanke testified that he “never went
to” the February 2003 status hearing where Counsel 2 “reaffirmed
[his] plea.” 3 He further testified that at sentencing, where he was
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present, neither his counsel 4 nor the judge told him that he “had
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the right to appeal.” But on cross-examination, Blanke admitted
that Counsel 1, Counsel 2, and the sentencing court informed him
that by entering a guilty plea he waived his right to appeal.
¶11 The district court denied Blanke’s rule 4(f) motion. The
court first found that the evidence demonstrated that Blanke had
“waived his right to appeal his conviction,” explaining that
Blanke acknowledged waiving his right to appeal in his signed
plea statement, that the judge confirmed his waiver at the change
of plea hearing, and that Blanke had recently testified that
Counsel 1 and Counsel 2 “told him that if he pled guilty he waived
3. As noted above, the minute entry indicates that Blanke was
present at the status hearing.
4. It is unclear in the transcript whether Blanke was referring to
Counsel 1 or Counsel 2.
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State v. Blanke
his right to appeal.” Moreover, the court noted that the Utah
Court of Appeals had already determined that Blanke had
implicitly withdrawn his original motion to withdraw when he
pled guilty for a second time at the February 2003 status hearing
and that the February 2003 plea was never withdrawn prior to
sentencing.
¶12 Regarding the right to appeal his sentence, the district
court found that Blanke “was informed of his right to appeal his
sentence,” explaining that Blanke’s testimony that he was never
informed of this right was “not credible” for three reasons. First,
even though Blanke “admitted under oath at the evidentiary
hearing that he waived his right to direct appeal of his
conviction,” he was “still assert[ing] that he was deprived of his
right to appeal his conviction.” Second, Blanke’s testimony that
neither the court nor his attorneys had informed him of his right
to appeal was contradicted by the statement in his rule 4(f)
memorandum that he “truly believed that he had given up his right
to a direct appeal.” Third, the fact that Blanke “did not file any
appeal until 13 years after his sentencing (and then only did so on
a collateral basis) confirm[ed] that he understood he had given up
his right to a direct appeal.”
¶13 Significantly, the court also concluded that Blanke was not
prejudiced by the alleged failure to inform him of his right to
appeal his sentence:
Blanke failed to allege or present any evidence to
establish that he would have appealed his sentence
had he been informed of his right to do so. He
likewise failed to allege or present any evidence
demonstrating that the alleged failure of the court
and counsel to inform him of his right to appeal was
the “but for” reason that he failed to file a direct
appeal of his sentence. In the absence of any such
evidence, the Court finds that Mr. Blanke has failed
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State v. Blanke
to meet his burden of demonstrating that he
suffered any prejudice.
¶14 Blanke appeals.
ISSUE AND STANDARD OF REVIEW
¶15 The sole issue on appeal is whether the district court erred
when it denied Blanke’s motion to file a direct appeal from his
2003 sentence for attempted child kidnapping. 5 We review for
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correctness the court’s legal conclusion that Blanke was not
denied his right to appeal, but we give deference to the court’s
factual findings, reviewing them for clear error. State v. Kabor,
2013 UT App 12, ¶ 8, 295 P. 3d 193, cert. denied, 300 P.3d 312 (Utah
2013).
ANALYSIS
¶16 The Utah Rules of Appellate Procedure provide, “Upon a
showing that a criminal defendant was deprived of the right to
appeal, the trial court shall reinstate the thirty-day period for
filing a direct appeal.” Utah R. App. P. 4(f). Our supreme court
has stated that rule 4(f) requires a defendant to show
(1) deprivation of the right to appeal and (2) that an appeal would
have been taken had the defendant been properly informed of the
right:
Both our reinstatement [of the right to appeal]
caselaw and rule 4(f) recognize that reinstatement is
only appropriate where a defendant is “deprived”
of the right to appeal. Implicit in this requirement is
5. Blanke states that he seeks to appeal only his sentence and that
the district court misunderstood his rule 4(f) motion as seeking
“to reinstate the right to appeal his conviction.”
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State v. Blanke
the recognition that where a defendant would not
have appealed anyway, there is no deprivation of
the right to appeal and any error affecting that right
would be harmless. Consequently, to show that any
error was not harmless, a defendant seeking
reinstatement relief . . . must show that had he been
properly advised, he would have appealed.
State v. Collins, 2014 UT 61, ¶ 30, 342 P.3d 789. 6 In other words,
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“an error affecting the right to appeal is rendered harmless where
the defendant would not have appealed regardless of the error.”
Id. ¶ 38; see also Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000) (“If
the defendant cannot demonstrate that, but for counsel’s deficient
performance [in failing to file a notice of appeal without consent],
he would have appealed, counsel’s deficient performance has not
deprived him of anything, and he is not entitled to relief.”); Garza
v. Idaho, 139 S. Ct. 738, 747 (2019) (“So long as a defendant can show
that counsel’s constitutionally deficient performance deprived
him of an appeal that he otherwise would have taken, courts are
to presume prejudice with no further showing from the defendant
of the merits of his underlying claims.” (emphasis added)
(cleaned up)).
¶17 Recognizing that the district court made a factual finding
that Blanke had been informed of his right to appeal his sentence,
for the purpose of our analysis we will nevertheless assume,
without deciding, that Blanke was never informed of this right.
6. We acknowledge that the Utah Supreme Court’s articulation
makes sense in the context of reinstated appeals generally.
However, we think that in the context of motions to reinstate the
time to appeal a sentence, a defendant should also be required to
show a likelihood that a better result would have been obtained if
the reinstatement had occurred. In this case, we think it highly
unlikely that even if the appeal time had been reinstated, any
different sentence would have been rendered.
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State v. Blanke
After all, the plea agreement that Blanke signed explicitly stated
that his guilty plea would waive his “right to appeal the
conviction and sentence.” (Emphasis added.) As the State concedes
in its briefing, “Blanke’s plea statement did not properly inform
him of his appellate rights” because “it stated that Blanke was
giving up the right to appeal both his guilty plea and his
sentence.” And we will accept as true—for the limited purpose of
our analysis—Blanke’s word that he was not otherwise advised
by the court or his attorneys of his right to appeal his sentence. See
State v. Brown, 2021 UT 11, ¶ 16, 489 P.3d 152 (stating that under
rule 4(f), being “deprived of the right to appeal” includes, among
other scenarios, “the court or the defendant’s counsel fail[ing] to
properly advise [the defendant] of the right to appeal” (cleaned
up)). But even if Blanke was never properly informed of his right
to appeal his sentence, his claim of error still fails for lack of
prejudice. In other words, Blanke never presented evidence to the
district court that he would have appealed his sentence even if he
had been properly informed of the right.
¶18 Instead of providing evidence that he would have
appealed his sentence, Blanke argues that it “is more than
implicit”—given his history of filing “post-conviction motions
and appeals”—that “he would have filed a direct appeal had he
known that he could.” Blanke further argues that “there is
nothing” in rule 4(f) that requires a showing of prejudice. He
asserts—in a somewhat circular fashion—that “[c]ounsel was
ineffective and prejudiced his rights at a critical stage of the
proceeding wherein prejudice must be presumed.” But that is not
what our caselaw says. Rather than articulating a presumption of
implied prejudice, our supreme court has adopted a more direct
approach. There can be “no deprivation of the right to appeal” if
the “error affecting that right [was] harmless.” See Collins, 2014 UT
61, ¶ 30. And to establish that the error was harmful, a defendant
“must show that had he been properly advised, he would have
appealed.” Id. Thus, to prevail on appeal, it is not enough for
Blanke to say that he was not informed of the right to appeal—or
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State v. Blanke
that he “would obviously have testified” that he would appeal
“had the question been put forth.” This reasoning descends into
the realm of pure speculation. That Blanke would have
pursued an appeal is not obvious in the absence of any evidence.
Rather, our supreme court has clarified that a defendant in
Blanke’s position must carry the burden of proof that he would
have appealed his sentence if properly informed of his right to do
so.
¶19 Blanke presented no evidence that he ever contemplated
appealing his sentence in a timely manner. Had he done so, this
would be a different matter. If Blanke had asked his attorneys to
appeal and they failed to follow through—or if Blanke had
presented, for example, phone calls or letters that reflected his
intention to timely appeal but that he was dissuaded from doing
so because he was under the impression that an appeal was not
an option—then there would have been some evidence that
Blanke would have appealed. But that is not the case here. Blanke
presented nothing to suggest that he ever expressed a wish to
timely appeal his sentence to his attorneys, the court, or anyone
else.
¶20 And Blanke likely had no intention of appealing his
sentence for good reason. He pled guilty pursuant to a favorable
plea agreement, one which allowed him to plead guilty to a
second-degree felony in a separate, unrelated kidnapping case.
Indeed, the reduction in that separate—and apparently more
serious—case was identified as a “strong consideration” in the
plea agreement reached in the case involving Elisabeth, being
characterized by the court as “part of the total package.” Because
the plea agreement offered Blanke the chance to bring a resolution
to both cases, there would have been no reason for Blanke to
consider timely appealing his sentence for attempting to kidnap
Elisabeth. Doing so would have run counter to his interests at the
time.
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State v. Blanke
¶21 Blanke has not met his burden of persuasion on appeal to
show that he would have appealed his sentence had he been
properly informed of his right to do so. Accordingly, we see no
error in the district court’s denial of his rule 4(f) motion.
CONCLUSION
¶22 Any error in depriving Blanke the right to appeal his
sentence must be considered harmless in the absence of evidence
that Blanke would have otherwise pursued an appeal. We
therefore conclude that the district court did not err in denying
Blanke’s motion to reinstate his time to file a direct appeal.
¶23 Affirmed.
20220104-CA 11 2023 UT App 113