Socolov v. State
| Decision Date | 31 March 2022 |
| Docket Number | 20210724-CA |
| Citation | 508 P.3d 1009 |
| Parties | Oleg SOCOLOV, Appellant, v. STATE of Utah, Appellee. |
| Court | Utah Court of Appeals |
Oleg Socolov, Appellant Pro Se
Before Judges Michele M. Christiansen Forster, David N. Mortensen, and Ryan M. Harris.
Per Curiam Opinion
¶1 Oleg Socolov appeals the dismissal of his petition filed under the Post-Conviction Remedies Act (PCRA). We affirm.
¶2 We review an appeal from an order summarily dismissing or denying post-conviction relief for correctness without deference to the lower court's conclusions of law. See Bevan v. State , 2021 UT App 107, ¶ 7, 499 P.3d 191.
¶3 Socolov was convicted after a bench trial of misdemeanor offenses of assault (domestic violence); domestic violence in front of a child; threat of violence; disorderly conduct; and intoxication. The district court entered the judgment and sentence on February 27, 2020. Shortly after sentencing, Socolov was removed to a federal facility in Nevada pending deportation proceedings. After his conviction, Socolov filed pro se motions that sought reconsideration of a protective order, but he did not file a timely direct appeal.
¶4 Socolov filed a PCRA petition and two amended petitions. He first claimed that his trial counsel rendered ineffective assistance by failing to appeal his convictions and to properly advise him of the right to appeal. His remaining claims evolved over the two amended petitions to encompass claims of error by the district court and additional ineffectiveness claims asserting that trial counsel failed to present relevant evidence, to impeach the testimony of the victim, to assert that Socolov acted in self-defense, and to pursue a claim that Socolov had diminished capacity because he was a battered spouse. Socolov claimed that he was entrapped by the victim, who fabricated claims of domestic violence to place his immigration status in jeopardy. He also raised the "possibility" of his factual innocence of the crimes. In his first amended petition, he added claims of prosecutorial misconduct and claims that he had obtained new evidence about the victim's motivation and fabrication of allegations. A second amended petition elaborated on his claims.
¶5 The district court issued an order to show cause providing Socolov with notice and an opportunity to demonstrate why the claims made in his petition were not precluded under the PCRA. See Utah Code § 78B-9-106(2)(b) (West 2022) () In a written response, Socolov argued his claims should not be procedurally barred because his failure to file an appeal resulted from ineffective assistance of trial counsel, whom he alleged had failed to properly advise him of the right to appeal.1
¶6 The district court dismissed the PCRA petition, ruling that the first claim—that Socolov was denied the right to appeal because his trial counsel failed to properly inform him of his appeal rights—was not within the scope of the PCRA and instead must be raised in a motion to reinstate the appeal time under rule 4(f) of the Utah Rules of Appellate Procedure. The district court concluded that the remaining claims for relief from the conviction (characterized by the court as prosecutorial misconduct, entrapment, evidentiary issues at trial, and counsel's failure to assert diminished capacity as a defense) were procedurally barred because either the claims "may still be raised on direct appeal," see id. § 78B-9-106(1)(a), or the claims "could have been but [were] not raised at trial, or on appeal," see id. § 78B-9-106(1)(c). The district court also reasoned that because Socolov "has not yet filed a motion under rule 4(f), he has failed to fully exhaust his legal remedies before pursuing post-conviction relief." See id. § 78B-9-102(1) (). Finally, the district court ruled that a claim of factual innocence must be filed under the separate provisions beginning at Utah Code section 78B-9-401, and could not be combined with Socolov's other challenges to his convictions. See id. § 78B-9-104(3) ().
¶7 Utah Code section 78B-9-106(1) provides, in relevant part, that a petitioner is not eligible for relief upon any ground that "(a) may still be raised on direct appeal or by a post-trial motion" or "(c) could have been but was not raised in the trial court, at trial, or on appeal." Subsection (3)(a) states, "Notwithstanding Subsection (1)(c), a petitioner may be eligible for relief on a basis that the ground could have been but was not raised in the trial court, at trial, or on appeal, if the failure to raise that ground was due to ineffective assistance of counsel." Socolov claimed that he did not file a direct appeal because he was not properly advised of the right to appeal and that this same alleged failure to advise him also constitutes ineffective assistance of counsel that prevents preclusion of his claims under section 78B-9-106(1)(c) because it was counsel's deficient performance that caused his failure to raise the claims on appeal.
¶9 Socolov asserts that the one-year limitation on a motion to reinstate the appeal time in a civil case under the analogous rule 4(g) would also apply to a criminal case. This is not supported by the plain language of rule 4(f), which currently omits any time limitation.2 See Ralphs v. McClellan , 2014 UT 36, ¶ 24, 337 P.3d 230 (). "In reserving the right of a defendant to move to reinstate an appeal that is lost by no fault of the defendant, rule 4(f) reserved a right of continuing jurisdiction of the court in which a conviction is entered and a sentence is rendered." Id.
¶10 "The point of [ rule] 4(f) ... is to provide criminal defendants who have been deprived of an appeal through no fault of their own with an avenue for relief." Brown v. State , 2021 UT 11, ¶ 16, 489 P.3d 152. Rule 4(f) codified the procedure for reinstatement of an appeal and supplanted the remedy for reinstatement of the appeal time previously provided by Manning v. State , 2005 UT 61, 122 P.3d 628. See id. ¶ 13. However, the factors from Manning continue to "inform the discussion of what rule 4(f) means by deprived of the right to appeal." Id. ¶ 16. Manning " explained that criminal defendants were entitled to have their appeal rights reinstated where they demonstrate that they had lost their appeal rights because (1) counsel failed to file an appeal after agreeing to do so; (2) despite diligently attempting to file a timely appeal, the defendant was unable to do so through no fault of their own; or (3) the court or the defendant's counsel failed to properly advise them of the right to appeal." Id. (cleaned up); see also Ralphs , 2014 UT 36, ¶ 30, 337 P.3d 230 (...
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