STATE OF UTAH, Petitioner, v. CALVIN PAUL STEWART, Respondent.
No. 20180847
SUPREME COURT OF THE STATE OF UTAH
August 1, 2019
2019 UT 39
On Certiorari to the Utah Court of Appeals. Fourth District, Utah County. The Honorable Lynn W. Davis. No. 011403597
This opinion is subject to revision before final publication in the Pacific Reporter
Attorneys:
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, 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
¶3 We now reverse the decision of the court of appeals. Criminal defendants seeking to reinstate the time to appeal under
¶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.
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
¶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
¶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
II
¶12 The State contends that the court of appeals erred in concluding that
¶13 Relief under
¶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
A
¶15 Criminal defendants seeking reinstatement of the time to appeal must show that they were “deprived of the right to appeal.”
¶16 The State‘s position is rooted in our precedent. The State views Manning v. State, 2005 UT 61, 122 P.3d 628, and State v. Rees, 2005 UT 69, 125 P.3d 874, as limiting the right of reinstatement of an appeal to defendants who are prevented from filing a timely notice of appeal. While Manning does not draw so clear a line, Rees arguably does.
¶17 In Manning we were asked to decide what procedures a defendant must follow to restore a denied right to appeal. 2005 UT 61, ¶ 11. We held that “upon a defendant‘s motion, the trial or sentencing court may reinstate the time frame for filing a direct appeal where the defendant can prove, based on facts in the record or determined through additional evidentiary hearings, that he has been unconstitutionally deprived, through no fault of his own, of his right to appeal.” Id. ¶ 31. We also identified some circumstances in which a defendant could make this showing.2 Those examples, however, do not speak to the situation here—a case in which a defendant files a notice of appeal but fails to file a brief. Nor do they identify the point at which a defendant can be said to have been deprived of his constitutional “right to appeal.”
¶18 Rees, however, appears to speak to this issue. There we explained that only those defendants who have “been prevented in some meaningful way from proceeding with [an] appeal[]” can secure reinstatement of the time to appeal. Rees, 2005 UT 69, ¶ 17 (second alteration in original) (citation omitted). And we construed “the act of ‘proceeding’ with an appeal to encompass filing a notice of appeal, not more.” Id. ¶ 18. “Defendants who gain entry to appellate courts and have their appeals concluded either by a ruling on the merits or involuntary dismissal have exhausted their remedy of direct appeal and are thereby drawn into the ambit of the PCRA.” Id.
¶19 This language from Rees may seem sufficient to resolve this case. It is undisputed, after all, that Stewart filed his notice of appeal. And we stated in Rees that defendants are deprived of the right to appeal only when they are prevented from “filing a notice of appeal.” Id. Stewart availed himself of that right. So if the right to an appeal encompasses only the right to file a notice of appeal, and nothing more, then Stewart cannot be said to have been deprived of this right.
¶20 We stop short of resolving this case on this basis, however. The fact-pattern presented in this case raises difficult problems that have not yet been addressed in our case law. Our Rees opinion speaks in broad terms—limiting the right to appeal only to the right to file a notice of appeal. But in Rees we were not asked to decide the question presented here. In Rees the defendant was represented by counsel and that counsel filed a brief on appeal. The problem in Rees was therefore quite different from the one we face here. The deficiency of the appeal in Rees was not in the outright failure to file a brief; it was in the failure to provide the court of appeals with a complete record. Id. ¶¶ 2-3. In that circumstance, it is entirely appropriate to conclude that the defendant was not deprived outright of his right to appeal. His appeal proceeded to a decision by the appellate court. And the defendant came out on the losing end due to a misstep of counsel in the briefing. This is an unfortunate outcome for the defendant. But Rees is not the sort of case where we would say that the defendant was deprived of a right to an appeal.
¶21 The case presented to us here is at least arguably different. Where no brief is ever filed on appeal it would be much harder to say that the defendant was not deprived of his right to an appeal. Consider a hypothetical in which a defendant is represented by counsel at all stages. If counsel assures his client that he will file an appeal and he files
¶22 We promulgated appellate
¶23 We therefore decline to resolve this question here, as it is unclear whether Rees should be read to sweep as broadly as the State suggests, and there is an alternative ground for reversal (set forth in Part II.C below).
B
¶24 The State advances a second basis for a ruling in its favor. It asserts that Stewart failed to carry his burden of persuasion in the district court—his burden of establishing that the sentencing court failed to inform him of his right to appellate counsel at the underlying sentencing hearing. And it faults the court of appeals for its failure to attribute to the district court “implied” findings consistent with its decision, and for its alleged entry of its own “findings” on appeal.
¶25 The district court made few, if any, express factual findings in support of its determination that Stewart failed to carry his burden of proof. It made no finding as to whether Stewart‘s testimony was credible or reliable. And in the absence of such findings, the court of appeals concluded that Stewart had carried his burden of proof by presenting “uncontroverted testimony” as to what was disclosed in the underlying sentencing proceeding. State v. Stewart, 2018 UT App 151, ¶ 22, 436 P.3d 129.
¶26 The State challenges the court of appeals’ approach on two grounds. First it asserts that the court of appeals should have assumed that the district court found Stewart‘s testimony to be lacking in credibility because such a finding is both consistent with the district court‘s decision and reasonable in light of the evidence in the record. And it contends that such a finding should have been afforded substantial deference on appeal. The State‘s second argument is advanced in the alternative. To the extent further findings were needed, the State insists that a remand was necessary. The State faults the court of appeals for, in the State‘s view, making its own findings instead of remanding for further findings in the district court.
¶27 The State‘s first argument finds plausible support in the language of some of our opinions. We have occasionally endorsed the propriety of a regime in which we “assume that the trier of facts found” facts “in accord” with its decision despite the absence of express “findings of fact.” Mower v. McCarthy, 245 P.2d 224, 226 (Utah 1952); see also State v. Ramirez, 817 P.2d 774, 788 (Utah 1991) (quoting Mower, 245 P.2d at 226). Yet we have not always assumed the existence of facts not expressly stated on the face of a lower court order.3
¶28 The State‘s alternative argument—that the court of appeals erroneously made its own factual findings—is misguided. The State is correct that our appellate courts are precluded from making independent findings of fact on appeal. See Rucker v. Dalton, 598 P.2d 1336, 1338 (Utah 1979) (“[I]t is not the function of an appellate court to make findings of fact because it does not have the advantage of seeing and hearing the witnesses testify.“). But that is not what happened here. The court of appeals merely determined that the district court‘s findings were clearly erroneous. And that was the court of appeals’ prerogative. See State v. Martinez, 2017 UT 43, ¶ 8, 424 P.3d 83 (“We disturb the district court‘s findings of fact only when they are clearly erroneous.“).
¶29 The court of appeals conducted a thorough review of the evidentiary hearing at which Stewart testified in support of his
¶30 The court of appeals did not make its own credibility determination. Nor did it make any other factual findings. The court thus acted within its prerogative in reviewing the district court‘s findings and ensuring that the district court properly applied the correct standard of proof. And we do not disagree with the court of appeals’ conclusion.
C
¶31 The State advances a final basis for resolution of this case. It asserts that Stewart is at fault for the dismissal of his appeal, and contends that he cannot avail himself of
¶32
¶33
¶34 The precedent from which the language of
¶35 Manning and the examples cited therein align with the language of
¶36 Stewart sees this issue differently. He asserts that an integral element of the right to appeal is the right to counsel on appeal. And he insists that he must be made aware of the right to counsel on appeal in order to exercise that right. Because the sentencing court failed to inform him of his right to appellate counsel, Stewart asserts that the sentencing court is to blame for the deprivation of the right to counsel on appeal—and accordingly is at fault for the denial of his right to appeal.
¶37 Stewart‘s proposition rests on the premise that constitutional rights are not properly preserved unless they are expressly highlighted in a colloquy in a judicial proceeding. Yet this is by no means a universal rule. And it runs contrary to the well-accepted maxim that “ignorance of the law is no excuse.” See In re Adoption of B.Y., 2015 UT 67, ¶ 19 n.3, 356 P.3d 1215 (citation omitted). This maxim is often invoked where a defendant claims ignorance of a statutory penalty. See, e.g., Cheek v. United States, 498 U.S. 192, 199 (1991). But
¶38 The United States Supreme Court has identified a few rights whose very existence implies a requirement of open announcement by the government. See, e.g., Miranda v. Arizona, 384 U.S. 436, 467–68 (1966) (requiring that persons in custody be informed of their privilege against self-incrimination); Johnson v. Zerbst, 304 U.S. 458, 467-68 (1938) (requiring that defendants knowingly waive their right to trial counsel). For these limited rights, the failure to apprise a defendant of his rights forecloses the possibility of a determination of waiver or forfeiture. The right at issue is deemed to require an express disclosure of its existence. And the failure of disclosure means that a defendant cannot be charged with forfeiting the underlying right. Our opinions and rules of evidence have extended this principle a step or two further. See, e.g.,
¶39 Our framework parallels that of the California Supreme Court in People v. Barnum, 64 P.3d 788 (Cal. 2003). The Barnum court reconsidered the viability of the “Killpatrick-Kramer rule.” Id. at 793. That rule “require[d] a trial court to advise a self-represented defendant of the privilege against compelled self-incrimination before he or she is called by the People as a witness in their case-in-chief or testifies in his or her own defense.” Id. In reassessing this rule, the court considered whether “the privilege against compelled self-incrimination, alone among the rights enjoyed by a self-represented defendant, mandates protection by the trial court” by an open disclosure of the existence of this right. Id. at 796. And it concluded that the right itself did not require this additional protection. Id. In so doing the court “recognize[d] that the privilege against compelled self-incrimination has been viewed as ‘fundamental.‘” Id. Yet it also noted that “other rights have been so ranked as well,” citing the “right to compulsory process,” the “right of confrontation,” and the “right to testify.” Id. In the Barnum court‘s view, “[n]o requirement has been imposed on the trial court to advise a self-represented defendant of any of these fundamental rights.” Id. at 797. So it cannot be that the “fundamental” nature of the right mandates that notice of the right be provided. “[A] defendant who chooses to represent himself or herself after knowingly, intelligently, and voluntarily forgoing the assistance of counsel assumes the risk of his or her own ignorance, and cannot rely upon the trial court to make up for counsel‘s absence.” Id.; see also State v. Winfield, 2006 UT 4, ¶ 19, 128 P.3d 1171 (“[A] party who represents himself will be held to the same standard of knowledge and practice as any qualified member of the bar.” (citation omitted) (internal quotation marks omitted)).
¶40 We see the matter similarly. To prevail in this case it is not enough for Stewart to assert that he has a right to appellate counsel—or even to insist that such right is important or in some sense fundamental. That begs the key question, as to whether this right (of all the important rights enshrined in the United States and Utah Constitutions) carries an additional requirement of open announcement or disclosure in court. Such a requirement is not inherent in the mere existence
¶41 This framework dooms Stewart‘s case. At the time of Stewart‘s sentencing, no controlling precedent or rule had established a requirement of open announcement in court of the right to appellate counsel. Perhaps such an announcement would have been a “best practice.” But there was no rule yet in place. We amended our rules in 2018 to require an announcement of the right to appellate counsel at sentencing. See
¶42 We do not hold courts at fault for failure to conform to best practices. We reverse on errors of law. And here there was no legal error. The judge that sentenced Stewart was under no legal obligation to inform him of his right to counsel on appeal. Because the sentencing court was under no such obligation, it was not at fault for the dismissal of Stewart‘s appeal. Relief under
¶43 Stewart contests this conclusion. He notes that a few courts have determined that the United States Constitution requires courts to give criminal defendants express notice of the right to appellate counsel. See, e.g., United States v. Aloi, 9 F.3d 438, 444 (6th Cir. 1993); United States ex rel. Singleton v. Woods, 440 F.2d 835, 836 (7th Cir. 1971); United States ex rel. Smith v. McMann, 417 F.2d 648, 654 (2d Cir. 1969); Cochran v. State, 315 S.E.2d 653, 654 (Ga. 1984); State v. Allen, 239 A.2d 675, 677 (N.J. Super. Ct. Law Div. 1968). Fair enough. But none of these precedents is controlling here. And we decline to establish a new federal constitutional right on the briefing that is before us in this case.
¶44 Stewart‘s briefing on this question is limited and ultimately unavailing. He cites only one case from the United States Supreme Court in support of his position—Halbert v. Michigan, 545 U.S. 605 (2005). But Stewart misstates the holding in Halbert. Halbert does not establish that a defendant cannot waive the right to appellate counsel unless he is informed of that right, as Stewart suggests. The Court in Halbert was merely assessing the constitutionality of a Michigan statute that denied court-appointed appellate counsel to indigents convicted by plea. Id. at 610. The Halbert Court struck down that statute. But Halbert does not endorse the right Stewart asks us to acknowledge. And we are in no position to establish a new federal, constitutional right on the briefing that is before us in this case.
¶45 Stewart‘s briefing fails to engage with the relevant provisions of the United States Constitution. He provides no analysis of the text or original meaning of the Due Process and Equal Protection Clauses, which have been cited as the source of the right to appellate counsel. See id. at 610–11. And he never connects the dots in a manner that explains why this right (among many other fundamental rights of criminal procedure) should carry a requirement of open announcement in court. At most Stewart is asserting that the right to appellate counsel is an important constitutional right. But that is true for many other constitutional rights afforded within the criminal process. And without any careful briefing on the matter, we lack a principled basis for establishing that there was a constitutional duty for the judge who sentenced Stewart in 2003 to inform him in open court of his right to appellate counsel.
¶46 Stewart‘s briefing under the Utah Constitution is likewise deficient. As with the federal constitutional question, Stewart has not engaged with the text or original meaning of the governing provisions of the Utah Constitution, or identified a basis for deeming the right to counsel on appeal as one of those limited rights that also conveys a requirement of open disclosure in court as a prerequisite to its forfeiture.
¶47 This is fatal to Stewart‘s case. We are in no position to establish a new constitutional right of the sort proposed by Stewart under the briefing that is before us. See Zimmerman v. Univ. of Utah, 2018 UT 1, ¶ 19, 417 P.3d 78 (citing the failure of originalist analysis as one of several grounds for declining to establish a new state constitutional right). Nor are we in a position to conclude that the sentencing judge had a duty to announce the existence of a right to appellate counsel under governing statutes or rules of procedure. Such a duty has come into existence in the years after the sentencing proceeding at issue in this case. See
¶48 We reverse on this basis. We conclude that Stewart has failed to carry his burden of persuading us to establish a new constitutional right. See State v. Fuller, 2014 UT 29, ¶ 50, 332 P.3d 937 (requiring defendants asserting constitutional claims to provide more than just “bald citations to authority [without] development of that authority and reasoned analysis based on that authority” (alteration in original) (citation omitted) (internal quotation marks omitted)). In so holding we do not foreclose the possibility that a future litigant may establish the existence of this constitutional right. We simply hold that Stewart has failed to carry his burden of persuasion in his briefing in this case. And in the absence of a sufficient basis for establishing this new right we conclude that there was no “fault” on the part of the sentencing judge that resulted in the denial of Stewart‘s right to appeal. The fault rests with Stewart—in failing to file a brief under the briefing schedule established by the court of appeals. And Stewart is accordingly not entitled to relief under