State v. Stewart, 436 P.3d 129

Background

In 2001 Stewart was charged with multiple securities offenses; he initially had private counsel who withdrew, a public defender was appointed, and Stewart ultimately chose to represent himself at trial.
He was convicted on seventeen counts and sentenced to consecutive prison terms; he filed a pro se notice of appeal and docketing statement but failed to file a brief by the deadline, and this court dismissed the appeal.
Over the next decade Stewart filed various postconviction motions; in 2015 he filed a Rule 4(f) motion to reinstate the time to file a direct appeal and a motion to appoint counsel. A public defender was appointed and an evidentiary hearing was held.
Stewart testified the trial court never informed him of his right to counsel on appeal and that, had he known, he would have sought appointed appellate counsel. The State offered no contrary evidence or transcripts of the sentencing hearing.
The district court denied reinstatement on three grounds: (1) Stewart had constructively waived appellate counsel by proceeding pro se at trial and on appeal; (2) Stewart’s own failure to meet the briefing deadline caused dismissal; and (3) Stewart’s unsupported claim 11 years later did not meet the Rule 4(f) preponderance standard. Stewart appealed.

Issues

Issue	Stewart's Argument	State's Argument	Held
Whether a defendant must be informed of the right to counsel on appeal as part of the right to appeal	Court must inform defendant of appellate counsel right; without that, indigent defendants are effectively deprived of a meaningful appeal	Filing a notice of appeal is proceeding with appeal; Rees says proceeding means filing notice, so Stewart was not prevented from appealing	Yes. A defendant is entitled to be informed of the right to counsel on appeal; that right is inherent in the constitutional right to appeal
Whether Stewart constructively waived his right to appellate counsel by representing himself at trial and proceeding pro se on appeal	No; waiver must be knowing and intelligent about appellate counsel and cannot be inferred from trial-level self-representation	Court concluded Stewart’s repeated trial-level requests to proceed pro se amounted to constructive waiver	No. Trial self-representation does not constitute constructive waiver of right to appellate counsel absent a knowing, intelligent waiver of that specific right
Whether Stewart’s failure to perfect his appeal makes him at fault and bars Rule 4(f) relief	Stewart lacked knowledge of right to appointed appellate counsel and thus could not be faulted for failing to file a brief	Stewart created his own delay by not filing a brief; Manning requires showing deprivation through no fault of defendant	Stewart was not at fault for failing to perfect the appeal where he was not informed of the right to counsel and would have requested appointed counsel
Whether Stewart met Rule 4(f)’s preponderance-of-evidence burden that he was deprived of the right to appeal	Stewart’s uncontroverted testimony that he was not informed, plus absence of contrary evidence, satisfies preponderance	District court found Stewart’s late, self-serving claim insufficient without additional evidence	The court erred: Stewart’s testimony, uncontradicted and unrebutted, met the preponderance standard and required reinstatement

Key Cases Cited

State v. Manning, 122 P.3d 628 (Utah 2005) (explains when Rule 4(f) reinstatement is available for unconstitutional deprivation of right to appeal)
State v. Rees, 125 P.3d 874 (Utah 2005) (discusses what constitutes ‘‘proceeding’’ with an appeal; limited to counsel-present ineffective-assistance context)
Douglas v. California, 372 U.S. 353 (U.S. 1963) (Sixth Amendment right to counsel extends to first appeal of right)
Swenson v. Bosler, 386 U.S. 258 (U.S. 1967) (per curiam) (assistance of appellate counsel is of substantial benefit and cannot be denied to indigents)
State v. Tuttle, 713 P.2d 703 (Utah 1985) (Utah Constitution guarantees the right to appeal and courts must protect it)