State v. Stewart

449 P.3d 59

STATE of Utah, Petitioner,

v.Calvin Paul STEWART, Respondent.

No. 20180847

Supreme Court of Utah.

Filed August 1, 2019

Sean D. Reyes, Att'y Gen., Jeffrey D. Mann, Asst. Sol. Gen., Salt Lake City, Kelsy B. Young, Provo, for petitioner

Douglas J. Thompson, Margaret P. Lindsay, Provo, for respondent

Associate Chief Justice Lee authored the opinion of the Court, in which Chief Justice Durrant, Justice Himonas, Justice Pearce, and Justice Petersen joined.

On Certiorari to the Utah Court of Appeals

Associate Chief Justice Lee, opinion of the Court:

¶1 Calvin Stewart was charged with multiple counts of securities fraud in 2001. He was unrepresented at trial and was convicted on all counts. After sentencing, Stewart filed pro se a notice of appeal and a docketing statement. But he failed to submit a brief by the filing deadline. And the court of appeals dismissed his appeal on that basis.

¶2 Twelve years later Stewart filed a motion to reinstate his time to appeal under rule 4(f) of the Utah Rules of Appellate Procedure. In filing this motion Stewart asserted that he was deprived of his right to appeal when the sentencing court failed to inform him of his right to counsel on appeal in his sentencing hearing in 2003. The district court denied Stewart's motion. Stewart appealed. And the court of appeals reversed.

¶3 We now reverse the decision of the court of appeals. Criminal defendants seeking to reinstate the time to appeal under rule 4(f) bear the burden of proving that they were deprived of the right to appeal through no fault of their own. And Stewart has not satisfied this standard here. His appeal was dismissed because he failed to follow the briefing schedule provided by the court of appeals.

¶4 Stewart claims that he would have requested an attorney if he had been informed of his right to appellate counsel. And he asserts that his attorney would have preserved his appeal by filing a brief. Stewart thus contends that the sentencing court deprived him of his right to appeal. We disagree.

The sentencing court may have failed to inform Stewart of his right to appellate counsel. And a colloquy about this right may have been a best practice at the time. But the court was under no legal obligation to inform Stewart of his right to appellate counsel. And because the court had no legal obligation to inform Stewart of his right to appellate counsel, it was not at fault for the dismissal of his direct appeal. The fault rests with Stewart. So relief under rule 4(f) is not warranted. We reverse the decision of the court of appeals on this basis.

I

¶5 In 2001 the State charged Stewart with multiple violations of securities laws. He was initially represented by private counsel. But that counsel withdrew before trial because Stewart could not afford to pay him. The court appointed Stewart a public defender. Stewart became dissatisfied with his attorney's performance and asked to represent himself. The trial court granted Stewart's request and allowed him to proceed pro se . It did so after "fully advis[ing]" Stewart of his right to counsel, informing him that he would "be held to the same standard" as if represented by counsel, and telling Stewart that if he "chang[ed] his mind and wishe[d] to have counsel represent him at trial he must" inform the court "by May 1st." Stewart did not change his mind. And at trial he was convicted on all counts.

¶6 Stewart filed pro se a notice of appeal and a docketing statement. But he failed to file a brief in accordance with the court of appeals' briefing schedule. So the court of appeals dismissed his appeal.

¶7 Twelve years passed, during which time Stewart filed a variety of motions—each of which was dismissed. Then in 2015, Stewart filed pro se a motion to reinstate the time to file an appeal pursuant to rule 4(f) of the Utah Rules of Appellate Procedure. That rule states that "[i]f the trial court finds by a preponderance of the evidence that the defendant has demonstrated that the defendant was deprived of the right to appeal, it shall enter an order reinstating the time for appeal." UTAH R. APP . P. 4(f). Stewart also filed a motion to appoint counsel. The district court appointed a public defender to assist Stewart with his rule 4(f) motion and scheduled an evidentiary hearing.

¶8 At that hearing Stewart asserted that the sentencing court had not informed him of his right to counsel on appeal. And because he was not informed of that right, Stewart argued that he had been unconstitutionally deprived of his right to appeal. Stewart further testified that when the trial court informed him of the need to decide whether he wanted counsel by a specific, pretrial date, he believed that the court was saying that he would no longer have a right to an attorney on appeal.

¶9 The State argued that reinstatement of the time to appeal should be afforded only where a defendant is prevented from filing a timely notice of appeal. See State v. Rees , 2005 UT 69, ¶ 18, 125 P.3d 874. And Stewart filed a notice of appeal. So, according to the State, Stewart was not entitled to relief under rule 4(f). The State also challenged Stewart's memory about whether the sentencing court had informed him of his right to appellate counsel. On cross-examination Stewart admitted that his memory of what was said at sentencing was incomplete—"there's some things I remember, some things I don't." But he could recall without qualification that the sentencing judge failed to inform him of his right to counsel on appeal. Stewart claimed that there were certain things the judge said at sentencing that he wanted to remember and that he wrote these things down in a notebook. And nothing in his notebook indicated that the sentencing judge informed him of his right to counsel on appeal.

¶10 The district court denied Stewart's motion. It did so for three reasons. First, Stewart's "request[ ] to represent himself" and "his choice to proceed in his appeal pro se " constituted a "constructive waiver of his right to an attorney on appeal." Second, Stewart's motion failed on the merits because his own failure to respond to the briefing deadline caused his appeal to be dismissed. And third, Stewart's self-serving testimony amounted to a "mere claim" and thus did not meet rule 4(f)'s preponderance standard. Stewart appealed the district court's decision.

¶11 The court of appeals reversed. It held that Stewart's right to appeal includes being informed of the right to counsel on appeal. State v. Stewart , 2018 UT App 151, ¶¶ 11–14, 436 P.3d 129. And because Stewart was not informed of his right to counsel on appeal, he was "prevented in some meaningful way from proceeding with [his] first appeal of right." Id. ¶¶ 11, 24 (citation omitted) (internal quotation marks omitted). The court of appeals further held that the district court erred when it found that "there was insufficient evidence that Stewart had not been deprived of the right to appeal." Id. ¶ 19. The court acknowledged that the district court's factual findings were entitled to deference, stating it "will ‘not overturn them unless they are clearly erroneous.’ " Id. ¶ 20 (quoting State v. Kabor , 2013 UT App 12, ¶ 8, 295 P.3d 193 ). But it then determined that the district court clearly erred. Id. ¶ 22. In the court of appeals' view, Stewart's "uncontroverted testimony" satisfied his burden of demonstrating by a preponderance of the evidence that he was not informed of the right to counsel on appeal and that he was thus unconstitutionally deprived of the right to appeal. Id. The court ordered the district court to reinstate the period for Stewart to file a direct appeal. Id. ¶ 24. The State then petitioned for a writ of certiorari, which we granted.

II

¶12 The State contends that the court of appeals erred in concluding that rule 4(f) permits reinstatement of the time to appeal on the basis of a sentencing court's failure to inform an unrepresented defendant of his right to counsel on appeal. The State also claims that the court of appeals erred when it reversed the district court's determination that Stewart failed to prove that he was not informed of his right to counsel on appeal. We agree with the State's first claim of error. And we reverse on that basis. Our holding, however, is limited to the facts of this case and the procedural rules that existed at the time of Stewart's sentencing. In 2003, the sentencing court had no legal obligation to inform Stewart of his right to appellate counsel.¹ It may have been a best practice for the court to do so. But nothing in our rules of procedure, our case law, or United States Supreme Court precedent mandated that such notice be provided. For this reason we cannot fault the sentencing court for this alleged shortcoming.

¶13 Relief under rule 4(f) is premised on a showing that the defendant was unconstitutionally deprived, through no fault of his own, of the right to appeal. See Manning v. State , 2005 UT 61, ¶ 31, 122 P.3d 628. This standard is not met here. Stewart's appeal was dismissed because he failed to follow the briefing schedule provided by the court of appeals. He accordingly is not entitled to reinstatement of the time to appeal.

¶14 We set forth the basis for this conclusion below. But we first consider two other grounds for reversal advanced by the State: (1) that our precedent forecloses rule 4(f) relief to a defendant who files a timely notice of appeal, and (2) that Stewart did not meet his burden of proving by a preponderance of the evidence that he was denied the right to appeal. We see some facial plausibility in the first ground but decline to resolve the case on that basis. We reject the second ground. But we reverse on the basis of the language of rule 4(f). We emphasize that this rule requires us to ask whether a criminal defendant was deprived of his right to appeal through no fault of his own . And we reverse on the ground that there was no "fault" on the part of the sentencing court or anyone else that caused...