State v. Blanke

537 P.3d 654

STATE of Utah, Appellee,

v.Kevin Ramey BLANKE, Appellant.

No. 20220104-CA

Court of Appeals of Utah.

Filed September 28, 2023

Herschel Bullen, Salt Lake City, Attorney for Appellant

Sean D. Reyes, Salt Lake City, 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.

Opinion

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.

BACKGROUND

¶2 In June 2002, Blanke came across a child, Elisabeth,¹ and 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 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 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 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, 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 present, neither his counsel⁴ nor the judge told him that he "had 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 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 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 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...