Manning v. State, 20020993-CA.
| Decision Date | 01 April 2004 |
| Docket Number | No. 20020993-CA.,20020993-CA. |
| Citation | 2004 UT App 87,89 P.3d 196 |
| Parties | Carolyn Roberts MANNING, Petitioner and Appellant, v. STATE of Utah, Respondent and Appellee. |
| Court | Utah Court of Appeals |
Joan C. Watt, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.
Mark L. Shurtleff, Attorney General and Laura B. Dupaix, Assistant Attorney General, Salt Lake City, for Appellee.
Before Judges BILLINGS, DAVIS, and ORME.
¶ 1 Carolyn Manning appeals the trial court's denial of her petition for postconviction relief, which was brought over a year after she entered her guilty pleas. She contends that because she was not fully informed by her counsel and the trial court of the nature of her right to appeal, the trial court's refusal to resentence her constitutes a denial of her constitutional right to appeal. We affirm the trial court's denial of her motion and clarify the procedures for attacking guilty pleas and the availability of resentencing as a means to cure a missed opportunity to appeal.
¶ 2 Manning was originally charged with three counts of unlawful dealing with property by a fiduciary, one count of failure to render a proper tax return, and two counts of theft by deception. Under the terms of a plea agreement, Manning pled guilty to one count of unlawful dealing with property by a fiduciary, a second degree felony; one count of failing to file a proper tax return, a third degree felony; and one count of theft, a third degree felony. The agreement also called for Manning to pay restitution to her victims. In exchange, the State agreed to dismiss the other counts.
¶ 3 In her written plea statement and at the plea hearing, Manning acknowledged that by entering a guilty plea she was waiving certain rights, including her right to appeal the conviction. In July 2001, she signed a statement, which she had reviewed with counsel, confirming that she intended to enter a guilty plea. The statement explained each of her rights that would be waived by voluntarily entering a guilty plea, including that the "right of appeal is limited." In contrast, if she "were tried and convicted by a jury or by a judge, [she] would have the right to appeal [her] conviction and sentence." The statement further explained that by pleading guilty she was "not preserving any issue for appeal relative to the Court's rulings on pre-trial motions or based upon statutory or constitutional challenges" and that she understood that by pleading guilty she waived her "rights to file an appeal." The statement also provided notice of the "time limits for withdrawing pleas" and indicated that such a request "must be made by motion within 30 days after the entry of the plea"1 and that the plea may be withdrawn only "upon a showing of good cause and with leave of the Court."
¶ 4 At the plea hearing in July 2001, Manning was represented by counsel, and the trial court engaged her in a colloquy before accepting her plea. During the course of the colloquy, the court determined that Manning understood the proceedings against her and was competent to enter a guilty plea. Her attorney stated that she is "a bright lady" who was "educated through the 15th grade" and that she had "participated in the preparation of" the written plea statement. Manning stated that her attorney had "taken the time to extend himself to adequately and properly serve me, and I'm satisfied with his service." The court explained that the "third degree felonies may carry with them an indeterminate term at the Utah State Prison of zero to five years"; "[t]he second degree felony can carry with it an indeterminate term at the Utah State Prison of one to fifteen years"; and "there is a substantial amount of restitution that will be ordered." The court reviewed with Manning the trial rights she would forego by pleading guilty and stated that her "right to appeal these pleas of guilty is very limited." After accepting her guilty pleas, the court informed her of her right to file a motion to withdraw the pleas within 30 days.
¶ 5 On September 27, 2001, Manning was sentenced to the statutory term of imprisonment for each offense, which prison terms were suspended except for one year, and she was given credit for time already served, which was approximately four months. She was placed on probation for thirty-six months and was ordered to pay restitution in the tentative amount of $210,000 to her individual victims and $19,431.24 to the Utah State Tax Commission. At sentencing, defense counsel indicated that he had "spoken to Ms. Manning about the real probability that [incarceration] was going to happen."
¶ 6 On November 23, 2001, Manning filed a pro se notice of appeal, which this court later dismissed for lack of jurisdiction. In an unpublished decision, this court explained that when a notice of appeal is filed beyond the 30-day appeal deadline, see Utah R.App. P. 4(a), we lack appellate jurisdiction, and Manning's only remedy if she was deprived of the right to appeal was to seek postconviction relief under the Utah Rules of Civil Procedure.
¶ 7 On July 31, 2002, Manning filed a petition in the district court "pursuant to Rule 65B(b) and/or 65C [of the] Utah Rules of Civil Procedure for an extraordinary writ allowing her to be sentenced nunc pro tunc... thereby extending the time in which to file a notice of appeal." Her primary claim was that her right to appeal and right to counsel had "been violated by the failure to file a timely notice of appeal from her conviction." The district court denied her petition for postconviction relief, finding that Manning "was informed by the court of her limited right to appeal," "was represented by very competent counsel," and had "not established that she was unconstitutionally denied her right to appeal." Manning now appeals that ruling.
¶ 8 Manning argues that the trial court "erred in refusing to resentence her nunc pro tunc." She contends that she "was deprived of her constitutional right to appeal" and "was also deprived of the right to counsel during the period for perfecting an appeal." "Generally, an appeal from a judgment on a petition for post-conviction relief raises questions of law reviewed for correctness, [on which we give] no deference to the post-conviction court's conclusion." Wickham v. Galetka, 2002 UT 72, ¶ 7, 61 P.3d 978. Accord Moench v. State, 2002 UT App 333, ¶ 4, 57 P.3d 1116
. Likewise, interpretation of the Post-Conviction Remedies Act, rule 65C, and rule 65B "present[ ] question[s] of law, which we also review for correctness and without deference to the lower court's conclusion." Moench, 2002 UT App 333 at ¶ 5, 57 P.3d 1116. See Platts v. Parents Helping Parents, 947 P.2d 658, 661 (Utah 1997) ().
¶ 9 The Utah Constitution provides that "[i]n criminal prosecutions the accused shall have the right to ... appeal in all cases." Utah Const. art. I, § 12. The Utah Supreme Court has stated that "the right of appeal [is] essential to a fair criminal proceeding" and it cannot be "lightly forfeited." State v. Tuttle, 713 P.2d 703, 704 (Utah 1985). However, appeals must be filed "within 30 days after the date of entry of the judgment or order appealed from." Utah R.App. P. 4(a). It is well established that "[i]f an appeal is not timely filed, this court lacks jurisdiction to hear the appeal." Serrato v. Utah Transit Auth., 2000 UT App 299, ¶ 7, 13 P.3d 616, cert. denied, 21 P.3d 218 (Utah 2001). The Utah Supreme Court has warned that extraordinary writs "must not" be used to "make a mockery of the time limits for appeal, undermine the finality of criminal judgments, and promote the indefensible merry-go-round of collateral attack." Boggess v. Morris, 635 P.2d 39, 43 (Utah 1981). Nonetheless, in circumstances where the right to appeal has been denied, the trial court may resentence a criminal defendant nunc protunc to provide the defendant with an opportunity to file a timely appeal. See id. (); State v. Johnson, 635 P.2d 36, 38 (Utah 1981).2 Manning contends it was error for the lower court to refuse to resentence her.
¶ 10 Utah cases have recognized that in certain limited circumstances a defendant should be resentenced in order to revive the right to appeal. In State v. Johnson, 635 P.2d 36 (Utah 1981), the criminal defendant claimed that his attorney agreed to file a notice of appeal after sentencing, but the attorney failed to follow through. See id. at 37. Having learned of the first attorney's failure, the defendant contacted a second attorney while still within the 30-day period for filing an appeal, "but through some misunderstanding" a timely appeal was not filed. Id. The Court denied the defendant's request to extend the time for filing because "[t]he 30-day period ... is jurisdictional and cannot be enlarged" but explained that due to the "important interests involved," which made "further proceedings desirable," the trial court could take evidence to determine whether the defendant's constitutional right to appeal the conviction had been denied. Id. The Court stated that "[i]f the facts alleged by the defendant are true ... defendant was denied a constitutional right and must be provided an opportunity to take a direct appeal from his conviction." Id. at 38. As the remedy for such a denial, the Court adopted the resentencing procedure described in People v. Callaway, 24 N.Y.2d 127, 299 N.Y.S.2d 154, 247 N.E.2d 128, 130 (N.Y.1969), whereby the act of resentencing starts a new 30-day period for filing an appeal. See Johnson, 635 P.2d at 38
.
¶ 11 Similarly, in Boggess v. Morris, 635 P.2d 39 (Utah 1981), the defendant filed a notice of appeal almost seven months after he was...
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