State v. Collins

• Decision Date: 30 December 2014
• Docket Number: No. 20130384.,20130384.
• Citation: 342 P.3d 789,2014 UT 61
• Court: Utah Supreme Court
• Parties: STATE of Utah, Petitioner, v. Robert COLLINS, Respondent.

342 P.3d 789

2014 UT 61

STATE of Utah, Petitioner

v.Robert COLLINS, Respondent.

No. 20130384.

Supreme Court of Utah.

Dec. 30, 2014.

Samuel P. Newton, Kalispell, MT, for petitioner.

Sean D. Reyes, Att'y Gen., John J. Nielsen, Asst. Att'y Gen., Salt Lake City, for respondent.

Chief Justice DURRANT authored the opinion of the Court, in which Justice DURHAM, Justice PARRISH, and Justice LEE joined. Associate Chief Justice NEHRING filed a dissenting opinion.

On Certiorari from the Utah Court of Appeals

Chief Justice DURRANT, opinion of the Court:

Introduction

¶ 1 In this case we are asked to clarify the nature of a defendant's burden of proof in seeking reinstatement of the right to appeal. Here, defendant Robert Collins failed to appeal his convictions within the thirty-day deadline for filing a notice of appeal. Approximately two years after the deadline, he filed a motion for reinstatement of his right to appeal and argued that our decision in Manning v. State¹ and rule 4(f) of the Utah Rules of Appellate Procedure required the court to reinstate his appeal because neither his counsel nor the trial court informed him of the relevant thirty-day deadline. The trial court denied his motion for reinstatement. But the Utah Court of Appeals reversed and held that Mr. Collins was deprived of his right to appeal because he was not properly informed of the thirty-day filing deadline.

¶ 2 We reverse the court of appeals' decision because the court erred by declining to apply harmless error analysis. Claims for reinstatement of the right to appeal are subject to harmless error review. Consequently, where a defendant seeks reinstatement on the basis that he was not properly advised of the right to appeal, as is the case here, he cannot rely solely on that fact. Rather, he must show by a preponderance of the evidence that he was not properly advised of the right to appeal and that had he been properly advised he would have filed an appeal.

¶ 3 Accordingly, we remand the case to the trial court to consider whether Mr. Collins has met his burden of showing that he would have filed an appeal had he known of the thirty-day deadline. The trial court may exercise its discretion in deciding whether to hold further hearings on the issue or, instead, to rely on the existing record.

Background

¶ 4 In October 2006, a jury found Mr. Collins guilty of one count of murder and two counts of aggravated robbery. Mr. Collins's counsel, Clayton Simms, then consulted with Mr. Collins in his holding cell and told him that he thought there were some “appealable issues.” Mr. Simms also encouraged Mr. Collins to appeal the jury verdict. Mr. Collins expressed dissatisfaction with the guilty verdict but responded to Mr. Simms's suggestion of filing an appeal by saying, “I don't want to appeal. I accept that.”

¶ 5 The trial court sentenced Mr. Collins in January 2007 to three consecutive terms of ten years to life in prison. At that time, the trial court failed to comply with rule 22(c)(1) of the Utah Rules of Criminal Procedure by not informing Mr. Collins of his right to appeal and of the thirty-day deadline for filing a notice of appeal imposed by rule 4(a) of the Utah Rules of Appellate Procedure.² But immediately after sentencing, Mr. Simms again advised Mr. Collins that he could file an appeal and encouraged him to do so. Mr. Collins maintained that he did not want to appeal. Mr. Simms responded by telling Mr. Collins to let him know within two weeks if he changed his mind. Mr. Collins did not contact Mr. Simms within the next two weeks.

¶ 6 Over two years later, on January 27, 2009, Mr. Collins sent the trial court a letter claiming that “[Mr.] Simms informed me he would file an appeal to this conviction.” Mr. Collins stated that “since it's been so long I asked someone to call the Utah Court of Appeals and was informed my attorney never filed it.” The trial court sent Mr. Simms a copy of the letter. Mr. Simms later testified that the letter was the first time Mr. Collins ever indicated he wanted to appeal. Mr. Simms wrote back to Mr. Collins and stated that “[t]here is no appeal. You didn't request one.”

¶ 7 After being appointed new counsel, Mr. Collins filed a motion seeking reinstatement of his right to appeal pursuant to rule 4(f) of the Utah Rules of Appellate Procedure and our decision in Manning v. State.³ He supported his motion on two alternative grounds. First, he argued that Mr. Simms failed to file an appeal after being expressly told to do so. Second, he argued that neither the trial court nor Mr. Simms properly advised him of the thirty-day deadline for filing a notice of appeal.

¶ 8 The trial court held a hearing on Mr. Collins's reinstatement motion, eliciting testimony from four witnesses, including: (1) Mr. Simms, (2) Elissa Duckworth, a systems administrator over the inmate telephone system at the prison, (3) Sylvia Collins, Mr. Collins's sister, and (4) Mr. Collins.

¶ 9 Mr. Simms recounted that he twice asked Mr. Collins whether he wanted to appeal and each time he said no. He testified that he told Mr. Collins that he needed to know within two weeks if Mr. Collins changed his mind and wanted to file an appeal. He acknowledged that this advice was not technically correct, but noted that it is his standard practice to tell clients they need to let him know within two weeks whether they want to appeal to avoid having them “call on the 30th day and ask for an appeal.”

¶ 10 Ms. Duckworth's testimony focused on Mr. Collins's prison telephone log. She testified that the call log showed that Mr. Collins made 385 phone calls between January 2007 and January 2008. None of those calls was to Mr. Simms.

¶ 11 Next, Ms. Collins testified that she received numerous letters from Mr. Collins while he was in prison and believed, based on those letters, that his case would be appealed.

¶ 12 Mr. Collins testified last. He testified that he asked Mr. Simms to file an appeal both after receiving the jury's verdict and soon after sentencing. Somewhat inconsistently, however, he also stated that he thought Mr. Simms would automatically file an appeal. His testimony is also unclear regarding when he learned that his convictions had not been appealed. He suggested that he became concerned about his appeal sometime during May 2007 after he called the Salt Lake Legal Defender Association's office seeking to talk to Mr. Simms about the appeal but was told that Mr. Simms did not work at that office. But he also suggested that he first became concerned about the status of his appeal approximately eight months after sentencing, in September 2007.

¶ 13 Mr. Collins further testified that he had no knowledge of the thirty-day deadline for filing an appeal. According to him, he only became aware of the thirty-day deadline for filing an appeal in approximately October 2008, after talking to another inmate. He asserted that had he known of the deadline, he “would have been on it right away, writing letters to whoever [he] had to or making phone calls or whatever.” When asked specifically if he would have done anything differently had he known of the thirty-day deadline, Mr. Collins responded that he “would have contacted Mr. Simms and made sure he filed [the] appeal like [he] thought [Mr. Simms] did.”

¶ 14 When questioned on direct examination about why he waited almost two years after his convictions to begin seeking updates on the status of his appeal from the court, Mr. Collins explained that he “heard that appeals take awhile” and “didn't know ... if it was still being processed or if it ever even got filed.” The State cross-examined Mr. Collins regarding his claim that he attempted to call the Salt Lake Legal Defender Association and Mr. Simms multiple times to check on the status of his appeal. When confronted with the fact that the prison's phone log did not show that he ever attempted to call the Salt Lake Legal Defender Association or Mr. Simms, Mr. Collins testified that he called from another inmate's phone account but did not know the inmate's name.

¶ 15 The trial court denied Mr. Collins's motion for reinstatement and stated that it found Mr. Simms's testimony “to be more credible than [Mr.] Collins' testimony.”⁴ In assessing whether Mr. Collins was denied his right to appeal, the court reasoned as follows:

In weighing the testimony of the witnesses, this Court concludes that defendant's counsel did apprise defendant of his right to appeal, though he did not specifically tell defendant that he must do so within 30 days. Mr. Simms told the defendant to contact him within 14 days if he wished to file an appeal, well within the 30 day time period permitted. The Court further concludes that the defendant did not diligently attempt to appeal within the statutory time frame. The Court is particularly considering the fact that defendant's letter to the Court was sent more than two years after the time of sentencing. The Court did not properly apprise defendant of his right to appeal as required by Rule 22(c)(1), Utah Rules of Criminal Procedure. Although this Court should have done so, that does not entitle him to have the appeal reinstated because his attorney properly advised him of that right.

¶ 16 The court of appeals reversed the trial court, concluding “that properly advising a defendant of his right to appeal includes advising him of the time within which an appeal must be filed.”⁵ Because neither the trial court nor Mr. Collins's counsel informed him of the thirty-day deadline, the court of appeals held that Mr. Collins “has a valid claim for reinstatement of [the] right [to appeal].”⁶ In so holding, the court rejected the State's argument that it was Mr. Collins's burden to show “that but for his lack of information he would have filed an appeal.”⁷ Instead, the court stated as follows:

[W]e hold that a defendant who has not been properly informed by either court or counsel of his appeal rights, including the time within which the notice of appeal must be filed, is

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