State v. Bluemel

2023 UT App 142

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
DARREN C. BLUEMEL,
Appellant.

Opinion
No. 20210181-CA
Filed November 24, 2023

Third District Court, Salt Lake Department
The Honorable Mark S. Kouris
No. 991906513

Herschel Bullen, Attorney for Appellant
Sean D. Reyes and Lindsey L. Wheeler,
Attorneys for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY
concurred.

LUTHY, Judge:

¶1 In 1999, Darren C. Bluemel pleaded guilty to murder and
was sentenced to five years to life in prison. He did not move to
withdraw his plea, and he did not file a timely appeal. More than
twenty years later, however, he moved to have the time to file an
appeal reinstated under rule 4(f) of the Utah Rules of Appellate
Procedure because, he claimed, (1) he asked his trial counsel to file
an appeal and his trial counsel did not and (2) neither the trial
 State v. Bluemel

court nor his trial counsel advised him of his right to appeal his
sentence. 1

¶2 The district court found that Bluemel “knowingly and
voluntarily waived his right to appeal [his] sentence” and that
“anything that may have happened after that [was] harmless,”
and it denied Bluemel’s motion. The district court also
determined that Bluemel’s delay in filing the motion was
“substantial and unreasonable” and, thus, that the motion was
“untimely.”

¶3 Although we share the district court’s concerns regarding
Bluemel’s delay in filing the motion, we conclude that under the
language of rule 4(f) and caselaw interpreting it, Bluemel’s motion
was not untimely. On the issue of whether Bluemel was deprived
of the right to appeal when his trial counsel did not file an appeal
after Bluemel requested one, we conclude that because Bluemel
did not make his request until after the time to appeal had passed,
his trial counsel’s failure to appeal did not deprive Bluemel of that
right. On the issue of whether Bluemel was deprived of the right
to appeal because the trial court and his trial counsel failed to
properly inform him of his right to appeal, we conclude that the
district court’s factual findings are inadequate. We therefore
vacate the district court’s determination on this issue and remand
the matter for a redetermination of this issue after the district
court makes additional findings.

1. We refer to the court that took Bluemel’s plea and sentenced
him as “the trial court,” and we refer to the attorney who
represented Bluemel during that time as his “trial counsel.” We
refer to the court that considered and ruled on Bluemel’s
subsequent rule 4(f) motion as “the district court.”

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 State v. Bluemel

BACKGROUND

¶4 Bluemel shot and killed a woman at his home in March
1999. Bluemel then told two individuals who were also at the
home at the time that “he would have to ‘kill them too’” so there
would be no witnesses. One of those individuals assured Bluemel
that “he would not ‘tell’” anyone about the killing, and Bluemel
let him go. Bluemel detained the other individual for over an hour
before letting her leave. At some point, Bluemel wrapped his
victim’s body in a rug and threw it in a culvert on his property.
He was later arrested and charged with murder and aggravated
kidnapping, both first-degree felonies, as well as tampering with
evidence, a second-degree felony.

¶5 Bluemel eventually pleaded guilty to the murder charge in
exchange for the State dismissing the other charges. At the change
of plea hearing, Bluemel’s trial counsel said that he had
“reviewed” with Bluemel the Statement of Defendant, Certificate
of Counsel and Order (the Plea Affidavit). Bluemel then
confirmed that he had read and understood the Plea Affidavit,
which he then signed. The Plea Affidavit stated that Bluemel was
“waiving and giving up” the rights he would otherwise have “to
appeal [his] conviction and sentence.” But this was partly
incorrect. In reality, the parties agree that Bluemel was waiving
only the right to appeal his conviction, not the right to appeal his
sentence. See Manning v. State, 2005 UT 61, ¶ 37, 122 P.3d 628
(holding that by pleading guilty, a criminal defendant waives the
right to appeal the conviction but retains the right to appeal the
sentence), superseded on other grounds by rule as stated in State v.
Brown, 2021 UT 11, 489 P.3d 152.

¶6 During the ensuing colloquy, the trial court explained that
Bluemel had “the right to go to trial” and, “[i]f the trial resulted in
a conviction,” the right to “appeal that conviction.” Bluemel said
that he understood those rights and that he would be waiving
them by pleading guilty. The trial court confirmed that Bluemel

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understood that “[t]he maximum sentence that [could] be
imposed” for the murder charge was “a prison sentence of five
years to life” and a fine. The trial court then accepted Bluemel’s
guilty plea to the murder charge, found that it was “knowingly
and voluntarily made,” and dismissed the other charges. Finally,
the trial court advised Bluemel that he had “30 days to make a
written motion to withdraw the plea for good cause.” 2

¶7 Central to this appeal, the trial court did not advise
Bluemel that, contrary to what was stated in the Plea Affidavit, he
retained the right to appeal his sentence. Nor did the trial court
inform Bluemel that the deadline for an appeal was thirty days
from the date of sentencing.

¶8 Bluemel did not move to withdraw his plea, and the case
proceeded to sentencing on August 30, 1999. At sentencing, the
trial court imposed the maximum sentence of five years to life in
the Utah State Prison plus a fine. 3 Again the trial court did not

2. The deadline to withdraw a guilty plea has since been changed;
a request to withdraw a guilty plea must now “be made by motion
before sentence is announced.” Utah Code § 77-13-6(2)(b).

3. The trial court followed the law then in effect, which provided:
A person who has been convicted of a felony may
be sentenced to imprisonment for an indeterminate
term as follows: (1) In the case of a felony of the first
degree, for a term [of] not less than five years, unless
otherwise specifically provided by law, and which
may be for life.
Utah Code § 76-3-203 (1999). The murder statute then in effect did
not provide for any other sentence. See id. § 76-5-203. The current
murder statute provides for a sentence of fifteen years to life in
prison. See id. § 76-5-203(3)(a)(ii) (2022).

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advise Bluemel of his right to appeal his sentence or of the
deadline for filing an appeal, and Bluemel filed no appeal.

¶9 Between August 2000 and February 2020, Bluemel filed
five petitions for state post-conviction relief challenging only his
plea and two petitions for federal habeas relief that primarily
challenged his plea. None of these petitions were successful.

¶10 Then in November 2020—over twenty-one years after he
was sentenced—Bluemel filed a motion to reinstate the time for
filing a direct appeal, arguing that he had been unconstitutionally
deprived of the right to appeal. At the hearing on that motion,
Bluemel testified that he sent various letters to his trial counsel—
multiple letters by first-class mail in “October, November of ‘99”
and one by certified mail in January 2000—notifying his trial
counsel “that he wanted a[] direct appeal.” He also told the
district court:

This basically all boils down to originally in 1999
whether my plea was knowingly and voluntarily
entered[,] and if someone would read my current
[petition for post-conviction relief] that’s before this
Court, there’s facts in there that have never been in
a prior [petition for post-conviction relief]. . . . If
someone were to read what I have it’ll show, one,
. . . my plea was not knowing[ly] and voluntarily
entered; and two, I asked my attorney to file a notice
of appeal and they just basically ignored me. This is
[about] . . . whether I knowingly and voluntarily
committed myself to life in prison.

¶11 At the conclusion of the hearing, the district court denied
Bluemel’s motion and made the following oral findings relevant
to this appeal:

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First of all, I do believe that [Bluemel] knowingly
and voluntarily waived his rights as indicated by
the plea forms.

Second of all, I think that anything that may
have happened after that is harmless. He’s already
had five other post-conviction motions and they’ve
already determined a lot of the direction this case is
going. As well, obviously this motion is filed 22
years after . . . his sentencing took place . . . , and as
a result I certainly find that not to be timely . . . .

In a written order memorializing its oral ruling, the district court
elaborated in relevant part as follows:

[Bluemel] fails to meet his burden of proof under
Manning [v. State]. [He] fails to present credible
evidence persuading the Court that [he] was
unconstitutionally deprived of the right to appeal
the sentence. To the contrary, the Court is
persuaded by the evidence that [Bluemel]
knowingly and voluntarily waived his right to
appeal the sentence. Moreover, [Bluemel’s] Motion
for relief from the sentence made twenty-one years
after sentencing is untimely. The delay is substantial
and unreasonable, particularly in view of
[Bluemel’s] vigorous litigation over the years to
obtain relief from the sentence.

¶12 Bluemel now appeals the district court’s denial of his
motion to reinstate the time for filing a direct appeal. On appeal,
notwithstanding the district court’s finding that Bluemel
“knowingly and voluntarily waived his right to appeal the
sentence,” the State concedes that Bluemel did not waive the right
to appeal his sentence and, therefore, that the trial court failed to
comply with rule 22(c)(1) of the Utah Rules of Criminal
Procedure, which provides that, “[f]ollowing imposition of

20210181-CA 6 2023 UT App 142
 State v. Bluemel

sentence, the court must advise the defendant of defendant’s right
to appeal” and “the time within which any appeal must be filed.”
Utah R. Crim. P. 22(c)(1). 4

ISSUES AND STANDARDS OF REVIEW

¶13 Bluemel presents three issues on appeal. First, he argues
that the district court erred by denying as untimely his motion to
reinstate the period for filing an appeal. This issue requires us to
interpret rule 4(f) of the Utah Rules of Appellate Procedure and
caselaw that has applied it. “[T]he interpretation of a rule of
procedure is a question of law that we review for correctness,”
Brown v. Glover, 2000 UT 89, ¶ 15, 16 P.3d 540, and so is the
interpretation of caselaw, see State v. J.R.B., 2010 UT App 245, ¶ 15,
239 P.3d 1052.

¶14 Second and third, Bluemel contends that the district court
wrongly denied his rule 4(f) motion, arguing that he was deprived
of his right to appeal both when he asked his trial counsel to file
an appeal but trial counsel did not and also when neither the trial
court nor trial counsel properly informed him of his right to
appeal. “We review [a lower] court’s legal conclusion that [a
defendant] was not unconstitutionally deprived of his [or her]
right to appeal 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, cert. denied, 300 P.3d 312 (Utah 2013). In addition,
whether a district court’s “findings are adequate to support the
court’s legal conclusions is reviewed for correctness as a question

4. The substance of the quoted text from current rule 22(c)(1)
appeared, with only minor stylistic differences, in rule 22(c) at the
time of Bluemel’s sentencing. See Utah R. Crim. P. 22(c) (1999). We
cite and quote the current rule for convenience.

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 State v. Bluemel

of law.” Lundahl Farms LLC v. Nielsen, 2021 UT App 146, ¶ 41, 504
P.3d 735 (cleaned up).

ANALYSIS

I. Timeliness

¶15 Bluemel contends that the district court erred by ruling that
his rule 4(f) motion was untimely. Under the plain language of the
rule and appellate caselaw interpreting it, Bluemel is correct. The
Utah Supreme Court has explained:

Neither Manning [v. State, the impetus for rule 4(f),]
nor rule 4(f) includes any time limitation on a
motion to reinstate an appeal. And absent any such
time limitation, we cannot properly impose one . . . .
[A defendant] face[s] no time deadline on filing such
a motion, and thus cannot be deemed to have
forfeited the right to file such a motion by his delay
in filing it.

Ralphs v. McClellan, 2014 UT 36, ¶ 24, 337 P.3d 230. Under this
reasoning, which the State recognizes as controlling, the district
court erred by basing its denial of Bluemel’s rule 4(f) motion
partly on the ground that it was “untimely.”

¶16 Notwithstanding our conclusion on this issue, we are
sympathetic to the district court’s view that Bluemel’s delay in
filing his rule 4(f) motion was “substantial and unreasonable.” In
that regard, our supreme court also acknowledged “concerns
regarding finality and repose” and “the ‘mischief’ introduced by
a stale 4(f) motion,” and it flagged these concerns “for
consideration by our advisory committee on the rules of appellate
procedure, with an indication of [its] inclination to amend the rule
prospectively to add a time limitation going forward.” Id. ¶ 25.
We flag this concern anew. As of now, however, no time

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limitation has been added to rule 4(f), and “absent any such time
limitation, [the district court could not] properly impose one,” id.
¶ 24.

II. Late Requests for an Appeal

¶17 Having determined that Bluemel’s rule 4(f) motion was
timely, we turn to his argument that he was deprived of his right
to appeal when he asked his trial counsel to file a notice of appeal
and his trial counsel did not. We conclude that because Bluemel
introduced no evidence that his trial counsel received a request to
appeal before the time for appeal had passed, the district court did
not err by declining to grant Bluemel’s motion based on this
argument.

¶18 The Utah Constitution grants criminal defendants “the
right to appeal in all cases.” Utah Const. art. I, § 12. But “[t]he right
to appeal is not unlimited.” State v. Nicholls, 2017 UT App 60, ¶ 18,
397 P.3d 709, cert. denied, 400 P.3d 1046 (Utah 2017). For instance,
a criminal defendant who wishes to appeal must file a notice of
appeal “within 30 days after the date of entry of the judgment.”5
Utah R. App. P. 4(a). The thirty-day deadline “is jurisdictional in
nature, meaning that an appellate court simply has no power to
hear the case if a notice of appeal is untimely.” State v. Collins, 2014
UT 61, ¶ 22, 342 P.3d 789 (cleaned up). But “[t]here is an exception
for criminal defendants . . . to the general rule that requires the
timely filing of a notice of appeal.” Id. ¶ 23.

¶19 Specifically, in Manning v. State, 2005 UT 61, 122 P.3d 628,
superseded by rule, Utah R. App. P. 4(f), as stated in State v. Brown,
2021 UT 11, 489 P.3d 152, our supreme court concluded that it
needed to “provide a readily accessible and procedurally simple
method by which persons improperly denied their right to appeal

5. “In criminal cases, it is the sentence itself which constitutes a
final judgment from which a defendant has the right to appeal.”
State v. Harris, 2004 UT 103, ¶ 20, 104 P.3d 1250 (cleaned up).

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can promptly exercise this right.” Id. ¶ 26. Thus, it held that,
“upon a defendant’s motion, the trial or sentencing court may
reinstate the time frame for filing a direct appeal where the
defendant can prove, based on facts in the record or determined
through additional evidentiary hearings, that he has been
unconstitutionally deprived, through no fault of his own, of his
right to appeal.” Id. ¶ 31. The Manning court then explained that
three “[s]uch circumstances would include” the following:

(1) [where] the defendant asked his or her attorney
to file an appeal but the attorney, after agreeing to
file, failed to do so, (2) [where] the defendant
diligently but futilely attempted to appeal within
the statutory time frame without fault on [the]
defendant’s part, or (3) [where] the court or the
defendant’s attorney failed to properly advise [the]
defendant of the right to appeal.

Id. (citations omitted).

¶20 Utah’s appellate rules were thereafter amended “to
formalize the process” announced in Manning. State v. Brown, 2021
UT 11, ¶ 15, 489 P.3d 152 (cleaned up). Accordingly, rule 4(f) of
the Utah Rules of Appellate Procedure provides that “[u]pon 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).

¶21 Although Manning “no longer supplies a valid procedural
basis for accessing the right to appeal separate and apart from rule
4(f), it does inform the discussion of what rule 4(f) means by
‘deprived of the right to appeal.’” Brown, 2021 UT 11, ¶ 16. In that
regard, Manning noted that the above-quoted list of three
scenarios under which a defendant is unconstitutionally deprived
of the right to appeal was “not intended to be exclusive.”
Manning, 2005 UT 61, ¶ 31 n.11. And here, Bluemel identifies an
additional scenario—a close variation of the first Manning

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 State v. Bluemel

scenario—under which a defendant is unconstitutionally
deprived of the right to appeal. Specifically, he points to the
United States Supreme Court’s statement in Garza v. Idaho, 139 S.
Ct. 738 (2019), that it has “long held that a lawyer who disregards
specific instructions from the defendant to file a notice of appeal
acts in a manner that is professionally unreasonable” and that
such ineffective assistance unconstitutionally deprives the
defendant of the right to appeal. Id. at 746–47 (cleaned up).

¶22 Of course, Garza’s holding assumes that the defendant’s
attorney received the instruction to file an appeal before the time
for appeal had passed. This is evident from the Court’s
explanation that in Garza “[t]he period of time for [the
defendant’s] appeal to be preserved came and went” after the
defendant “told his trial counsel that he wished to appeal.” Id. at
743. This is also consistent with the fact that the filing of an
untimely notice of appeal is a futile act, see Serrato v. Utah Transit
Auth., 2000 UT App 299, ¶ 7, 13 P.3d 616 (recognizing that
appellate courts must dismiss untimely appeals), cert. denied, 21
P.3d 218 (Utah 2001), and an attorney’s decision not to engage in
futile acts “does not constitute ineffective assistance,” State v.
Bond, 2015 UT 88, ¶ 63, 361 P.3d 104 (cleaned up). Thus, the
pertinent principle from Garza—which principle, we agree,
rightly forms the basis of a fourth Manning scenario—is that an
attorney’s performance is deficient and unconstitutionally
deprives the defendant of the right to appeal when (1) before the
time for appeal has passed, the attorney receives specific
instructions from the defendant to file an appeal (even if the
attorney has not outright agreed to file the appeal, as is the case in
the first Manning scenario) and (2) the attorney disregards those
instructions and fails to file a notice of appeal.

¶23 Although Bluemel argues that his case fits this fourth
Manning scenario, he failed to introduce evidence that his trial
counsel received appeal instructions before the time to appeal had
passed. Bluemel was sentenced on August 30, 1999, and his

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 State v. Bluemel

deadline to appeal was thirty days later, on September 29, 1999.
Bluemel testified at the rule 4(f) motion hearing that he “asked
[his] attorney to file a notice of appeal and [the attorney] just
basically ignored [him].” As to the timing of his request for an
appeal, however, Bluemel testified that he did not send the first-
class letters asking his trial counsel to file an appeal until
“October, November of ‘99” and that he sent “the certified letter
. . . in January of 2000.” Apparently recognizing that his trial
counsel’s performance would not be deemed deficient if trial
counsel did not receive appeal instructions before the time for
appeal had passed, Bluemel now asserts that it would be
“reasonable” for us to simply “presume” that “he first asked his
trial counsel to appeal . . . within thirty days” of sentencing. We
are unable to indulge that presumption.

¶24 “[A] finding of fact cannot be based upon surmise,
conjecture, guess, or speculation,” Olsen v. Warwood, 255 P.2d 725,
727 (Utah 1953), and Bluemel failed to introduce any evidence to
support a finding that he communicated with his trial counsel
within thirty days of sentencing about his desire for an appeal.
Because Bluemel failed to introduce evidence that his trial counsel
received appeal instructions before the time for appeal had
passed, we conclude as a matter of law that Bluemel did not prove
that his trial counsel’s failure to file an appeal constituted deficient
performance. 6 Thus, the district court did not err by declining to
grant Bluemel’s motion based on this argument.

6. Although the district court did not address Bluemel’s argument
in this way, “we may affirm on any legal ground or theory
apparent on the record, as long as we do not reweigh the evidence
in light of the new legal theory or alternate ground.” State v.
Malloy, 2019 UT App 55, ¶ 9, 441 P.3d 756 (cleaned up), aff’d, 498
P.3d 358 (Utah 2021).

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III. Properly Advised of Right to Appeal

¶25 Finally, Bluemel argues that both the trial court and his
trial counsel failed to properly advise him of his appeal rights and
thereby unconstitutionally denied him of his right to appeal. We
conclude that the district court’s findings on this issue were
inadequate, and we therefore remand this issue for additional
findings.

¶26 We begin by observing that “harmless error analysis
applies to claims for reinstatement” of the time to appeal. State v.
Collins, 2014 UT 61, ¶ 36, 342 P.3d 789. Harmless error analysis in
this context means that defendants who request reinstatement of
the time to appeal must show by a preponderance of the evidence
that if there had been no error affecting their right to appeal, they
would have timely appealed. Id. ¶¶ 30–31.

¶27 This harmless error analysis is expressly incorporated into
the first two Manning scenarios because in those scenarios—i.e.,
where “the defendant asked his or her attorney to file an appeal
but the attorney, after agreeing to file, failed to do so” and where
“the defendant diligently but futilely attempted to appeal within
the statutory time frame without fault on [the] defendant’s
part”—“the defendant takes affirmative steps to appeal and is
ultimately harmed because something outside of his control
causes the failure to appeal.” Id. ¶ 32 (cleaned up). The
defendant’s affirmative efforts to appeal demonstrate that, but for
the error, the defendant would have appealed.

¶28 “The third [Manning] scenario is somewhat different in that
it does not contain an express requirement of a showing of harm
because it concerns a situation where the defendant lacks
knowledge of his right to appeal and accordingly takes no action
to vindicate that right.” Id. ¶ 33. But because harmless error
analysis applies in this scenario as well, defendants relying on it
“must show: (1) that neither the court nor counsel properly
advised them of their right to appeal, and (2) that ‘but for’ this

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failure they would have filed [a timely] appeal.” Id. ¶ 29; see also
id. ¶¶ 38–43.

¶29 Here, the trial court did not inform Bluemel that, contrary
to what was said in the Plea Affidavit, he retained the right to
appeal his sentence. The trial court also did not inform Bluemel of
the thirty-day deadline for filing an appeal. In each of these ways,
the trial court did not fulfill its obligation to “advise the defendant
of defendant’s right to appeal” and “the time within which any
appeal must be filed.” Utah R. Crim. P. 22(c)(1). Because the State
has not argued that being properly informed for purposes of
Manning and rule 4(f) is somehow different than being properly
informed under rule 22(c)(1), we assume that Bluemel was not
properly informed by the trial court of his right to appeal. See
Collins, 2014 UT 61, ¶ 26. “But a court’s failure to fully comply
with rule 22(c)(1) will not necessarily result in a deprivation of the
defendant’s right to appeal because the defendant’s attorney may
independently inform the defendant of the right.” Id. ¶ 25.

¶30 As to whether Bluemel’s trial counsel properly informed
him of his appeal rights, trial counsel acknowledged during the
change of plea hearing that he had reviewed with Bluemel the
Plea Affidavit, which the State now concedes had mistakenly told
Bluemel that he was waiving the right to appeal his sentence, and
the record contains no express indication that trial counsel ever
informed Bluemel of the appeal deadline. This evidence could
support an inference that Bluemel’s trial counsel did not properly
inform Bluemel of his appeal rights.

¶31 On the other hand, Bluemel did not testify that there were
no other conversations in which his trial counsel informed him of
his appeal rights. And Bluemel did not call his trial counsel to
testify to that effect. The lack of definitive evidence on this point
could undermine the weight a fact-finder might otherwise give to
the inference that could be drawn from trial counsel’s reviewing
the deficient Plea Affidavit with Bluemel. Additionally, Bluemel’s

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untimely requests to his trial counsel to file an appeal suggest that
Bluemel at some point did become aware of his right to appeal,
even if not of the deadline for exercising it.

¶32 Despite the competing evidence, lack of evidence, and
inferences that could be drawn from each, the district court made
no finding as to whether Bluemel’s trial counsel properly
informed Bluemel of his right to appeal his sentence and the
deadline for filing an appeal. Admittedly, the district court did
find generally that Bluemel “fail[ed] to meet his burden of proof
under Manning.” But because a Manning analysis requires
findings on multiple factual issues, and because the State has
conceded error in the district court’s one specific factual finding
(i.e., that Bluemel actually waived the right to appeal his
sentence), the district court’s blanket finding that Bluemel
“fail[ed] to meet his burden of proof under Manning” is
inadequate to support the ruling on Bluemel’s argument based on
the third Manning scenario.

¶33 The district court also made no adequate finding as to
whether Bluemel would have timely appealed if he had been
properly informed of his appeal rights. Again, the district court
did say that “anything that may have happened after [Bluemel
pleaded guilty] is harmless.” But its lack of clarity regarding the
harmless error standard it was applying, see infra ¶¶ 35–39,
renders this finding inadequate as well. 7

7. The inadequacy of the district court’s findings is somewhat
understandable in light of its determination that Bluemel
“knowingly and voluntarily waived his right to appeal [his]
sentence.” If that determination had stood, the complexion of this
case would be fundamentally different since, under that scenario,
it would have been proper to inform Bluemel that he had waived
the right to appeal his sentence. However, that scenario also raises
(continued…)

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 State v. Bluemel

¶34 Accordingly, we remand the case to the district court for a
determination of whether Bluemel’s trial counsel informed
Bluemel of his right to appeal his sentence and of the deadline to
appeal and, if Bluemel was not properly informed, whether he
would have timely appealed if he had been. In making these
determinations, the district court may “hold[] further hearings on
[these] issue[s] or rely[] on the existing record,” Collins, 2014 UT
61, ¶ 57, to the extent that the existing record is adequate to
support the district court’s additional determinations.

¶35 The district court may be required to answer an additional
question on remand. As we have noted, see supra ¶ 33, there was
a lack of clarity below regarding what a defendant is required to
prove under the Manning harmless error analysis. As we have
explained, criminal defendants seeking reinstatement of the time
to appeal must show both that an error affected their right to
appeal and that, but for the error, they would have filed a timely
appeal. The State argues, based on our opinion in State v. Nicholls,
2017 UT App 60, 397 P.3d 709, cert. denied, 400 P.3d 1046 (Utah
2017), that the harmless error portion of this analysis requires
defendants who, like Bluemel, waive the right to appeal their plea
to demonstrate that they would have appealed their sentence and

unanswered questions, such as whether defendants can waive the
right to appeal their sentence, compare State v. Maurstad, 706
N.W.2d 545, 549 (Minn. Ct. App. 2005) (“[A] criminal defendant
cannot waive the right to appeal a sentence . . . .”), aff’d, 733
N.W.2d 141 (Minn. 2007), with Nolan v. State, 177 N.E.3d 881, 883
(Ind. Ct. App. 2021) (“A defendant may waive his or her right to
appeal a sentence as part of a plea agreement and such waivers
are valid and enforceable.”), and, if defendants can and do waive
that right, whether the court is still required to inform them of the
deadline to appeal, see Utah R. Crim. P. 22(c)(1); supra ¶ 29.
Ultimately, the State’s concession that Bluemel did not waive the
right to appeal his sentence avoids these questions, but it triggers
the need for additional findings on the issues identified above.

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not their plea. See id. ¶ 54. The State then contends that Bluemel
would have appealed only his plea, 8 thus defeating his claim for
reinstatement.

¶36 The State does not misread our opinion in Nicholls. In
Nicholls, a defendant who pleaded guilty and did not timely move
to withdraw his plea later moved to reinstate his time to appeal.
Id. ¶¶ 4–5, 15. We affirmed that “a defendant who pleads guilty
waives the right to a direct appeal of the conviction on the crime
charged,” id. ¶ 19 (cleaned up), and that when a defendant pleads
guilty and does not move to withdraw the plea, “the only direct
appeal available is the residual right to appeal the sentence,” id.
¶ 20. The defendant in Nicholls argued that he had been deprived
of his right to appeal because the court had not properly informed
him of his appeal rights and because his counsel also had not
properly informed him of his appeal rights. See id. ¶¶ 50, 54. We
observed, however, that the defendant “ha[d] not demonstrated
in any of his briefing that he would have appealed his sentence”
but for the errors he alleged. Id. ¶ 54. And because he had not
shown that “he would have appealed his sentence,” as opposed to
his plea, we concluded that he had “not met his burden to show
prejudice.” Id. We therefore affirmed the denial of his rule 4(f)
motion. See id. The State is therefore correct that Nicholls stands
for the proposition that criminal defendants who retain only their
right to appeal their sentence and seek reinstatement of the time
to appeal must prove that, but for an error affecting their right to
appeal, they would have timely appealed their sentence, not
merely their plea.

8. In support of this contention, the State points to Bluemel’s
testimony that his rule 4(f) motion “basically all boils down to . . .
whether [his] plea was knowingly and voluntarily entered” and
to the fact that the sole focus of Bluemel’s state post-conviction
actions, and the primary focus of his federal habeas petitions,
were complaints about his plea, not issues related to his sentence.

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¶37 Subsequent to Nicholls, however, the United States
Supreme Court issued Garza v. Idaho, 139 S. Ct. 738 (2019). In
Garza, a criminal defendant pleaded guilty and signed two plea
agreements, each containing “a clause stating that [he] ‘waived
his right to appeal.’” Id. at 742 (cleaned up). The trial court
accepted the agreements and sentenced the defendant to prison in
accordance with their terms. Id. “Shortly after sentencing, [the
defendant] told his trial counsel that he wished to appeal.” Id. at
743. But “[t]he period of time for [the defendant’s] appeal to be
preserved came and went with no notice having been filed.” Id.
The defendant then sought a restoration of his right to appeal. Id.

¶38 The Court in Garza began by observing that it had
previously held that “when an attorney’s deficient performance
costs a defendant an appeal that the defendant would have
otherwise pursued, prejudice to the defendant should be
presumed ‘with no further showing from the defendant of the
merits of his underlying claims.’” Id. at 742 (quoting Roe v. Flores-
Ortega, 528 U.S. 470, 484 (2000)). It then extended that holding to
cases where the defendant pleads guilty and signs an appeal
waiver. Id. at 747. The Court then expressly rejected the
government’s proposed adoption of a rule that would require a
defendant who has signed a plea agreement waiving some, but
not all, appeal rights “to show—on a case-specific basis—either
(1) that he in fact requested, or at least expressed interest in, an
appeal on a non-waived issue, or alternatively (2) that there were
nonfrivolous grounds for appeal despite the waiver.” Id. at 748
(cleaned up). This proposed but rejected rule would have
harmonized with our decision in Nicholls by requiring defendants
who have signed a waiver of the right to appeal their plea but
retained the right to appeal their sentence to show that, but for an
error affecting their right to appeal, they would have appealed
their sentence (a non-waived issue), not their plea (a waived issue).

¶39 The United States Supreme Court’s decision in Garza raises
a question regarding the continuing validity of our Nicholls

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holding identified above. However, neither party has addressed
that question. Instead, Bluemel never mentions Nicholls, and the
State cites approvingly both Nicholls’s holding that a defendant in
Bluemel’s position must demonstrate “that he would have
appealed his sentence,” 2017 UT App 60, ¶ 54, and Garza’s holding
that a defendant in Bluemel’s position must show that “he would
have timely appealed” “with no further showing . . . of the merits
of his underlying claim[],” 139 S. Ct. at 747 (cleaned up).
Accordingly, we decline to address in the first instance the
continuing validity of the relevant holding in Nicholls. See Kay v.
Barnes Bullets, 2022 UT 3, ¶ 20, 506 P.3d 530 (declining to address
a legal question in the first instance “without the benefit of full
briefing on the subject”); R.O.A. Gen. Inc. v. Salt Lake City Corp.,
2022 UT App 141, ¶ 39, 525 P.3d 100 (remanding to allow the
district court to address a legal issue “in the first instance”
“because we are mindful that we are a court of review, not of first
view” (cleaned up)). On remand, if the court finds that Bluemel
was not properly informed by his trial counsel of his appeal
rights, it should address the question of whether, in light of
Nicholls and Garza, Bluemel must then prove only that had he been
properly informed he would have timely appealed or that had he
been properly informed he would have timely appealed his
sentence. See generally Kay, 2022 UT 3, ¶ 20 n.29 (“We encourage
the district court to keep in mind that when faced with questions
of first-impression, trial judges should address them head-on and
not reserve judgment in a manner that leaves the issues for
resolution on appeal in the first instance.” (cleaned up)). After
having thus determined the proper standard for harmless error in
this context, the court may then decide whether Bluemel has
shown that he meets that standard.

CONCLUSION

¶40 Bluemel’s rule 4(f) motion was not untimely. The district
court was correct, however, when it declined to grant the motion

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based on the argument that Bluemel was deprived of his right to
appeal when his trial counsel did not file an appeal after receiving
Bluemel’s belated requests to do so. On the argument that
Bluemel was deprived of his right to appeal because the trial court
and trial counsel failed to properly advise him of his appeal rights,
the district court’s findings are inadequate to support its ruling.
We therefore vacate the ruling and remand the matter for
additional findings as explained herein and for such additional
proceedings as may then be appropriate.

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