State v. Przybycien

541 P.3d 288

STATE of Utah, Appellee,

v.Tyerell Joe PRZYBYCIEN, Appellant.

No. 20220278-CA

Court of Appeals of Utah.

Filed December 14, 2023

Douglas J. Thompson, Attorney for Appellant

Sean D. Reyes, Salt Lake City and Michael D. Palumbo, Attorneys for Appellee

Judge Gregory K. Orme authored this Opinion, in which Judges Ryan M. Harris and Ryan D. Tenney concurred.

Opinion

ORME, Judge:

¶1 For the significant role he played in aiding the suicide of another, the State charged Tyerell Joe Przybycien with murder and abuse or desecration of a dead human body. In two other cases, the State also charged him with five counts of sexual exploitation of a minor and two counts of tampering with a witness. Przybycien eventually pled guilty to one count of child abuse homicide and one count of attempted sexual exploitation of a minor, for which he received concurrent prison sentences. Przybycien did not file a notice of appeal within the 30-day window following sentencing. Instead, nearly two years later, he filed a motion under rule 4(f) of the Utah Rules of Appellate Procedure seeking to reinstate his time to appeal, which motion the district court denied.

¶2 On appeal, Przybycien challenges the denial, arguing that his trial attorneys (Counsel)¹ rendered ineffective assistance, thereby depriving him of his constitutional right to appeal. Specifically, he argues that Counsel were ineffective under Roe v. Flores-Ortega , 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), for failing to consult with him about a potential appeal after sentencing. Because, under the circumstances of this case, we conclude that Counsel did not perform deficiently in not consulting with Przybycien post-sentence, we affirm the district court's denial of the rule 4(f) motion.

BACKGROUND

Arrest and Plea Agreement

¶3 In the Spring of 2017, sixteen-year-old J.B. confided in eighteen-year-old Przybycien that she was suicidal.² In response, Przybycien told her, "I'll make it happen for you if that's what you want." He subsequently encouraged her suicidal thoughts and told her that he also planned to commit suicide "at some point."

¶4 A few weeks later, in early May, a turkey hunter came across J.B.’s body hanging from a noose tied to a tree. The hunter called the police, who arrived at the scene soon thereafter. At J.B.’s feet, the police found "a receipt for the purchase of rope" containing Przybycien's name, "a smart phone, a handwritten suicide note referring to a video on the phone and a can of industrial strength air duster."

¶5 The phone contained a video recording of J.B.’s death taken from "just a few feet away." It showed J.B. alive with a noose around her neck holding a shirt in one hand and the can of air duster in the other. She was standing on what was later discovered to be a "pedestal" consisting of "a rock and a piece of wood." Przybycien's voice is then heard asking J.B. "to say something," following which J.B. inhaled "a large amount of the air duster," lost consciousness, and fell "in a twisting motion." The video continued for another 10 minutes, during which Przybycien continued to ask J.B. questions. J.B. was unresponsive to Przybycien's questions, but her body made "what appear[ed] to be slight involuntary movements until she expire[d]." Przybycien did not attempt to save J.B.’s life. Instead, "he can be heard saying her body should be depleted of oxygen."

¶6 While the police were at the scene, Przybycien returned, approached the officers, and agreed to an interview. During multiple interviews with the police, Przybycien admitted to researching how to tie a noose, purchasing the rope, testing it to ensure it was sufficiently tight and long, and tying the noose. He also admitted that he purchased the air duster and constructed the makeshift "pedestal." Further, he told police that on the night in question, he picked J.B. up from work and took her to the scene of her suicide where he twice watched her inhale the contents of the air duster and pass out—once without and once with the noose around her neck. He stated, "I feel like I did murder her. That's what it is. Because I helped her so much. And that was my plan. That was my plan."

¶7 For his conduct relating to J.B.’s death, the State charged Przybycien with murder, a first-degree felony, and abuse or desecration of a dead human body, a class B misdemeanor.³ Following a preliminary hearing and additional written argument from both sides, particularly on the issue of causation for the murder charge, the district court issued a written ruling binding the case over for trial.

¶8 In a separate case, based on images of child pornography that police found on Przybycien's cellphone as part of their investigation into J.B.’s death, the State charged Przybycien with five counts of sexual exploitation of a minor, second-degree felonies. And in a third case, the State charged Przybycien with two counts of tampering with a witness.

¶9 On September 4, 2018, three months before trial was scheduled to begin on the charges related to J.B.’s death, the court held a telephonic conference at which Przybycien was not present. At the hearing, the court stated that

the big question was whether or not the State of Utah had a charge that fit the factual circumstances of this case.

It seemed that at the preliminary hearing that issue came up, and I was uncertain as to what other fact disputes there might be between the parties; but as it was indicated to me the matter will be going to a jury, I wondered if this isn't the kind of case that would be appropriate for either motions prior to trial to address the legal issues, or perhaps even a Sery type plea^[4] where the parties could preserve their rights.

... I'm assuming that regardless of how this Court rules or how the jury rules, the legal question is a question that probably needs a higher authority than the trial Court in order to resolve it. So I'm anticipating that either side could choose to appeal it.

So I guess my question really comes down to ... [i]s this a fact case or is this a law case, and how do you want to proceed; and if this doesn't mean anything to you, we'll just go forward with the trial.

¶10 Both sides agreed that the case turned primarily on the legal issue of whether Przybycien "caused the death of another." Counsel then indicated that they would discuss with Przybycien the possibility of a Sery plea that would allow him to "tak[e] the legal issue up on appeal."

¶11 Almost two months later, Przybycien entered a plea agreement in which he pled guilty to one count each of child abuse homicide and attempted sexual exploitation of a minor, a first-degree felony and a third-degree felony, respectively. In exchange, the State dismissed all remaining charges from all three cases and agreed to recommend that the sentences for both charges to which Przybycien pled guilty be run concurrently. In relevant part, as emphasized in the plea agreement, Przybycien acknowledged, "I understand that I am giving up my right to appeal my conviction if I plead guilty" and "I understand that if I plead guilty and wish to appeal my sentence I must file a notice of appeal within thirty (30) days after my sentence is entered."

¶12 At the change-of-plea hearing, the district court ensured that Przybycien understood the terms of the plea agreement and that the charges to which he was pleading guilty "carr[ied] with them the possibility of incarceration at the Utah State Prison for not less than five years and up to life on the first-degree felony and for up to five years on the third-degree felony." Counsel indicated that the agreement had been discussed with Przybycien twice within the past 24 hours. The court also confirmed that Przybycien was entering his pleas "freely and voluntarily." Following a reading of the factual bases for the charges contained in the agreement, which Przybycien agreed were accurate, Przybycien signed the plea agreement before the court. The court accepted the pleas and set the matter for sentencing.

¶13 In December 2018, the district court held the sentencing hearing. Counsel emphasized, among other things, Przybycien's young age, "developing mind," and feelings of remorse. After acknowledging that it was "a big ask," Counsel requested that Przybycien "serve two years at the Utah County Jail," followed by 60 months of supervised probation. The State asked the court to sentence Przybycien to prison and that "the Board of Parole ... hold him as long as necessary for him to show that he is ... no longer a danger to our community, which for him, unfortunately, may be for the rest of his natural life."

¶14 After reviewing letters and other documents submitted from both Przybycien's and J.B.’s friends and family, the district court sentenced Przybycien to concurrent prison terms. For the child abuse homicide conviction, the court sentenced him "to an indeterminate term in the Utah State Prison of not less than five years, but which may be for life." And for the attempted sexual exploitation of a minor charge, the court sentenced him "to an indeterminate term in the Utah State Prison not to exceed five years."

¶15 The district court next told Przybycien, "[Y]ou have the right to appeal my decision within the next 30 days if you choose to do so. You also have the right to have a State appointed attorney assist you in preparing that [appeal] if you cannot afford your own attorneys; do you understand that?" Przybycien responded, "Yes."

Rule 4(f) Motion

¶16 Nearly two years later, in September 2020, Przybycien filed a pro se motion with the district court seeking to reinstate his time to file an appeal under rule 4(f) of the Utah Rules of Appellate Procedure.⁵ Later, represented by appellate counsel, he filed an amended rule 4(f) motion in which he asserted that "[a]t no time prior to his plea, before sentencing, or within the 30-day time limitation" to appeal his sentence did Counsel ever discuss with him "the possibility of filing an appeal from the...