State v. Bluemel

540 P.3d 756

STATE of Utah, Appellee,

v.Darren C. BLUEMEL, Appellant.

No. 20210181-CA

Court of Appeals of Utah.

Filed November 24, 2023

Herschel Bullen, Salt Lake City, Attorney for Appellant

Sean D. Reyes, Salt Lake City, 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.

Opinion

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 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.

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 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 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:

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 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...