2023 UT App 153

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

TYERELL JOE PRZYBYCIEN,

Appellant.

Opinion

No. 20220278-CA

Filed December 14, 2023

Fourth District Court, Provo Department

The Honorable M. James Brady

No. 171401553

Douglas J. Thompson, Attorney for Appellant

Sean D. Reyes and Michael D. Palumbo,

Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which 

JUDGES RYAN M. HARRIS and RYAN D. TENNEY concurred.

ORME, Judge:

¶1 For the significant role he played in aiding the suicide of 

another, the State charged Tyerell Joe Przybycien with murder

and abuse or desecration of a dead human body. In two other

cases, the State also charged him with five counts of sexual 

exploitation of a minor and two counts of tampering with a 

witness. Przybycien eventually pled guilty to one count of child 

abuse homicide and one count of attempted sexual exploitation of 

a minor, for which he received concurrent prison sentences. 

Przybycien did not file a notice of appeal within the 30-day 

window following sentencing. Instead, nearly two years later, he 

filed a motion under rule 4(f) of the Utah Rules of Appellate 

Procedure seeking to reinstate his time to appeal, which motion

the district court denied. 
State v. Przybycien

20220278-CA 2 2023 UT App 153

¶2 On appeal, Przybycien challenges the denial, arguing that

his trial attorneys (Counsel)1 rendered ineffective assistance, 

thereby depriving him of his constitutional right to appeal.

Specifically, he argues that Counsel were ineffective under Roe v. 

Flores-Ortega, 528 U.S. 470 (2000), for failing to consult with him 

about a potential appeal after sentencing. Because, under the 

circumstances of this case, we conclude that Counsel did not 

perform deficiently in not consulting with Przybycien 

post-sentence, we affirm the district court’s denial of the rule 4(f) 

motion. 

BACKGROUND

Arrest and Plea Agreement

¶3 In the Spring of 2017, sixteen-year-old J.B. confided in 

eighteen-year-old Przybycien that she was suicidal.2 In response, 

Przybycien told her, “I’ll make it happen for you if that’s what 

you want.” He subsequently encouraged her suicidal thoughts

and told her that he also planned to commit suicide “at some 

point.”

¶4 A few weeks later, in early May, a turkey hunter came 

across J.B.’s body hanging from a noose tied to a tree. The hunter 

called the police, who arrived at the scene soon thereafter. At J.B.’s 

feet, the police found “a receipt for the purchase of rope” 

containing Przybycien’s name, “a smart phone, a handwritten 

1. In the proceedings before the district court, Przybycien was 

represented by two attorneys. For simplicity, unless otherwise 

indicated, we refer to them collectively as Counsel.

2. The factual recitation of the conduct underlying Przybycien’s 

convictions is derived from the “Factual Basis for the Crimes 

Charged” section of Przybycien’s plea agreement.
State v. Przybycien

20220278-CA 3 2023 UT App 153

suicide note referring to a video on the phone and a can of 

industrial strength air duster.”

¶5 The phone contained a video recording of J.B.’s death taken 

from “just a few feet away.” It showed J.B. alive with a noose 

around her neck holding a shirt in one hand and the can of air 

duster in the other. She was standing on what was later 

discovered to be a “pedestal” consisting of “a rock and a piece of 

wood.” Przybycien’s voice is then heard asking J.B. “to say 

something,” following which J.B. inhaled “a large amount of the 

air duster,” lost consciousness, and fell “in a twisting motion.” 

The video continued for another 10 minutes, during which 

Przybycien continued to ask J.B. questions. J.B. was unresponsive

to Przybycien’s questions, but her body made “what appear[ed] 

to be slight involuntary movements until she expire[d].” 

Przybycien did not attempt to save J.B.’s life. Instead, “he can be 

heard saying her body should be depleted of oxygen.”

¶6 While the police were at the scene, Przybycien returned, 

approached the officers, and agreed to an interview. During 

multiple interviews with the police, Przybycien admitted to 

researching how to tie a noose, purchasing the rope, testing it to 

ensure it was sufficiently tight and long, and tying the noose. He 

also admitted that he purchased the air duster and constructed 

the makeshift “pedestal.” Further, he told police that on the night 

in question, he picked J.B. up from work and took her to the scene 

of her suicide where he twice watched her inhale the contents of 

the air duster and pass out—once without and once with the 

noose around her neck. He stated, “I feel like I did murder her. 

That’s what it is. Because I helped her so much. And that was my 

plan. That was my plan.”

¶7 For his conduct relating to J.B.’s death, the State charged 

Przybycien with murder, a first-degree felony, and abuse or 
State v. Przybycien

20220278-CA 4 2023 UT App 153

desecration of a dead human body, a class B misdemeanor.3

Following a preliminary hearing and additional written argument 

from both sides, particularly on the issue of causation for the 

murder charge, the district court issued a written ruling binding 

the case over for trial. 

¶8 In a separate case, based on images of child pornography 

that police found on Przybycien’s cellphone as part of their 

investigation into J.B.’s death, the State charged Przybycien with 

five counts of sexual exploitation of a minor, second-degree 

felonies. And in a third case, the State charged Przybycien with 

two counts of tampering with a witness.

¶9 On September 4, 2018, three months before trial was 

scheduled to begin on the charges related to J.B.’s death, the court 

held a telephonic conference at which Przybycien was not 

present. At the hearing, the court stated that

the big question was whether or not the State of 

Utah had a charge that fit the factual circumstances 

of this case. 

It seemed that at the preliminary hearing that

issue came up, and I was uncertain as to what other 

fact disputes there might be between the parties; but 

as it was indicated to me the matter will be going to 

a jury, I wondered if this isn’t the kind of case that 

would be appropriate for either motions prior to 

trial to address the legal issues, or perhaps even a 

3. At the time of J.B.’s death, our Legislature had not yet amended

the manslaughter statute to include the intentional aiding in the 

commission of suicide as a variant of the offense. Compare Utah 

Code Ann. § 76-5-205(1) (LexisNexis 2017), with id. § 76-5-205(2)(b)

(Supp. 2022).
State v. Przybycien 

20220278-CA 5 2023 UT App 153

Sery type plea[4] where the parties could preserve 

their rights. 

. . . I’m assuming that regardless of how this 

Court rules or how the jury rules, the legal question 

is a question that probably needs a higher authority 

than the trial Court in order to resolve it. So I’m 

anticipating that either side could choose to appeal 

it.

So I guess my question really comes down to 

. . . [i]s this a fact case or is this a law case, and how 

do you want to proceed; and if this doesn’t mean 

anything to you, we’ll just go forward with the trial.

¶10 Both sides agreed that the case turned primarily on the

legal issue of whether Przybycien “caused the death of another.” 

Counsel then indicated that they would discuss with Przybycien

the possibility of a Sery plea that would allow him to “tak[e] the 

legal issue up on appeal.”

¶11 Almost two months later, Przybycien entered a plea 

agreement in which he pled guilty to one count each of child 

abuse homicide and attempted sexual exploitation of a minor, a 

first-degree felony and a third-degree felony, respectively. In 

exchange, the State dismissed all remaining charges from all three 

cases and agreed to recommend that the sentences for both 

4. As codified in rule 11(j) of the Utah Rules of Criminal 

Procedure, “a Sery plea is a conditional plea in which a defendant 

pleads guilty (or no contest) but reserves the right to appeal the 

trial court’s denial of a motion to suppress certain evidence. If the 

appellate court reverses the denial of that motion, the defendant’s 

plea is withdrawn.” Kamoe v. Ridge, 2021 UT 5, ¶ 23, 483 P.3d 720 

(quotation simplified). See State v. Sery, 758 P.2d 935, 937–39 (Utah 

Ct. App. 1988). Przybycien did not enter such a plea in this case.
State v. Przybycien

20220278-CA 6 2023 UT App 153

charges to which Przybycien pled guilty be run concurrently. In 

relevant part, as emphasized in the plea agreement, Przybycien

acknowledged, “I understand that I am giving up my right to 

appeal my conviction if I plead guilty” and “I understand that if I 

plead guilty and wish to appeal my sentence I must file a notice of 

appeal within thirty (30) days after my sentence is entered.”

¶12 At the change-of-plea hearing, the district court ensured 

that Przybycien understood the terms of the plea agreement and

that the charges to which he was pleading guilty “carr[ied] with 

them the possibility of incarceration at the Utah State Prison for 

not less than five years and up to life on the first-degree felony 

and for up to five years on the third-degree felony.” Counsel 

indicated that the agreement had been discussed with Przybycien

twice within the past 24 hours. The court also confirmed that 

Przybycien was entering his pleas “freely and voluntarily.”

Following a reading of the factual bases for the charges contained 

in the agreement, which Przybycien agreed were accurate,

Przybycien signed the plea agreement before the court. The court 

accepted the pleas and set the matter for sentencing.

¶13 In December 2018, the district court held the sentencing

hearing. Counsel emphasized, among other things, Przybycien’s 

young age, “developing mind,” and feelings of remorse. After 

acknowledging that it was “a big ask,” Counsel requested that 

Przybycien “serve two years at the Utah County Jail,” followed 

by 60 months of supervised probation. The State asked the court 

to sentence Przybycien to prison and that “the Board of Parole . . . 

hold him as long as necessary for him to show that he is . . . no 

longer a danger to our community, which for him, unfortunately, 

may be for the rest of his natural life.”

¶14 After reviewing letters and other documents submitted

from both Przybycien’s and J.B.’s friends and family, the district

court sentenced Przybycien to concurrent prison terms. For the 

child abuse homicide conviction, the court sentenced him “to an 
State v. Przybycien

20220278-CA 7 2023 UT App 153

indeterminate term in the Utah State Prison of not less than five 

years, but which may be for life.” And for the attempted sexual 

exploitation of a minor charge, the court sentenced him “to an 

indeterminate term in the Utah State Prison not to exceed five 

years.”

¶15 The district court next told Przybycien, “[Y]ou have the 

right to appeal my decision within the next 30 days if you choose 

to do so. You also have the right to have a State appointed 

attorney assist you in preparing that [appeal] if you cannot afford 

your own attorneys; do you understand that?” Przybycien

responded, “Yes.”

Rule 4(f) Motion

¶16 Nearly two years later, in September 2020, Przybycien filed 

a pro se motion with the district court seeking to reinstate his time

to file an appeal under rule 4(f) of the Utah Rules of Appellate 

Procedure.5 Later, represented by appellate counsel, he filed an 

amended rule 4(f) motion in which he asserted that “[a]t no time 

prior to his plea, before sentencing, or within the 30-day time 

limitation” to appeal his sentence did Counsel ever discuss with 

him “the possibility of filing an appeal from the sentence,” “an 

appeal challenging the applicability of a homicide charge to the 

facts of the case,” or “the possibility of raising a challenge based 

on the passage of House Bill 086, 2018, in which the legislature 

created the crime of aiding another individual to commit suicide.”

5. The district court denied Przybycien’s pro se motion on the 

ground that he “failed to serve a copy of his motion . . . on all other 

parties.” On appeal from that denial, the State conceded that it 

was, in fact, served with the motion and accordingly requested 

summary reversal and remand. The State’s request was well 

taken, and the case was remanded to the district court to consider 

the merits of the motion.
State v. Przybycien

20220278-CA 8 2023 UT App 153

¶17 The district court6 held an evidentiary hearing on the 

motion at which Przybycien and Counsel testified. Przybycien

acknowledged that although he had been informed, both prior to 

entering the plea agreement and at sentencing, of the 30-day 

window to appeal his sentence, he did not “make any effort to 

have that sentence appealed within 30 days from the sentence.” 

He also acknowledged that he was not prohibited or prevented 

from appealing his sentence at the time.

¶18 Przybycien further testified that he did not recall 

discussing the September 4, 2018 pre-trial conference with 

Counsel. It was not until “[s]ometime in 2020” that Przybycien

obtained and read the transcript of the hearing, and he testified 

that he did not recall Counsel ever discussing with him the district 

court’s concern expressed at the hearing about whether “the State 

had a charge that fit the actual circumstances of the case.” He also 

testified that Counsel did not discuss with him the possibility of a 

Sery plea or that the question of causation was a legal question

“that probably need[ed] a higher authority than the trial Court in 

order to resolve it”—both of which issues the court had suggested 

at that hearing.

¶19 At the conclusion of Przybycien’s testimony, the district 

court made “a general statement” regarding the questioning that 

suggested that the court had been “worried about causation” at 

the pre-trial hearing. The court stated that it was unsure whether 

“the phrasing” that it “was worried” or “was concerned” was “an 

accurate portrayal” because its recollection was that it “may have 

raised questions and had discussions” regarding whether “the 

case was going to move forward either on a factual or legal basis.”

6. The same judge who took Przybycien’s plea and issued his 

sentence presided over the evidentiary hearing related to the rule 

4(f) motion and ruled on the motion. 
State v. Przybycien

20220278-CA 9 2023 UT App 153

But, the court stated, “if the record is different, we’ll go by the 

record.”

¶20 One of Przybycien’s trial attorneys testified at the 

evidentiary hearing that he and co-counsel discussed “the legal 

issue of causation” with Przybycien “[m]ultiple times,” including 

“generally what the Court indicated” at the September 4, 2018

pre-trial conference. He also stated that they discussed with 

Przybycien the law amending the manslaughter statute to include 

aiding in the commission of suicide and that they did so both 

before and after its passage in May 2018, for a total of “more than 

five times.”7 And on “multiple” occasions, they also went over 

“the risks and rewards of moving forward to trial versus resolving 

his case by way of a plea bargain,” which included discussion of

possible sentencing scenarios of “plea deal versus going to trial”

with the aid of “matrix estimates.” He stated that he and 

co-counsel “spent a lot of time with [Przybycien] at the jail” 

discussing “strategy decisions” and that they “were very 

thorough.” He also believed that at the time of sentencing, 

Przybycien had been “fully advised of his right to appeal.” He 

also stated that “before sentencing we talked about the option of 

appealing the sentence if he was sent to prison and he did not get 

probation. I do remember generally speaking about that option 

with him.”

¶21 The attorney testified that he did not remember visiting 

Przybycien in prison during the 30-day window, but that he did 

remember that in the 30 days after Przybycien’s sentence was 

imposed, he received “multiple messages” from Przybycien by 

way of his mother, none of which mentioned a possible appeal.

7. Indeed, the attorney testified that, based on the 2018

amendment to the manslaughter statute, see supra note 3, 

Przybycien authorized them to offer “to resolve the case as a 

second-degree felony manslaughter case.” The State rejected this 

offer.
State v. Przybycien

20220278-CA 10 2023 UT App 153

Instead, the messages addressed Przybycien’s desire “to be 

interviewed for the 48 Hours CBS show regarding this case, and 

also about how he was doing at the prison with his cell mate and 

the different types of jobs he was doing.”

¶22 The other trial attorney also did not remember visiting 

Przybycien in prison during the 30-day window to revisit the 

question of a possible appeal following sentencing. He testified 

that “one of the reasons we resolved the case the way we did is 

because the charge” of child abuse homicide “matrixed at 

substantially less than the murder conviction would have, at 

about half.” He stated that he and his co-counsel had discussed 

with Przybycien “the matrix, the likelihood of a prison sentence 

and what the matrix suggested might be an appropriate 

incarceration period before parole would be granted.” Based on 

this, he believed they had informed Przybycien “that prison was 

the most likely option, but that we could ask for probation” 

although “it was a longshot.” He also confirmed that Przybycien

had hoped for probation.

¶23 The district court issued a written order denying 

Przybycien’s rule 4(f) motion. The court found the testimony of 

Counsel to be “more credible than the testimony of” Przybycien. 

Accordingly, the court found that “at some time after the 

September 4, 2018, hearing,” Counsel informed Przybycien of the 

hearing and told him “generally about the topics discussed,” 

including “that the issue of causation was the primary legal issue 

in the case and that an appeal may be necessary to resolve that 

issue.” The court further found that Counsel discussed “the 

possibility of filing further motions, filing interlocutory appeal, 

. . . proceeding to trial,” and a Sery plea with Przybycien.

¶24 The district court next stated “that the issue of 

reinstatement of an appeal by [Przybycien] is limited” to 

“whether [he] was denied his right to appeal his sentence.” 

Accordingly, the court held that “[a]ny effort to address 
State v. Przybycien

20220278-CA 11 2023 UT App 153

effectiveness of counsel and other issues leading up to 

[Przybycien’s] plea” would need to be addressed through the 

Post-Conviction Remedies Act.

¶25 In addressing whether Przybycien was deprived of his 

right to a direct appeal, the court stated,

Prior to his entry of plea [Przybycien] was informed 

in writing and through consultation with his 

attorneys of his right to file an appeal and the time 

requirement for filing an appeal. At sentencing he 

stated he understood the written document and did 

not need more time to review it with his attorneys.

After sentencing, [Przybycien] was told by the 

Court that he had the right to appeal the sentence, 

and the time requirements for filing. He was told if 

he could not afford an attorney to assist him with an 

appeal, the Court would consider appointing an 

attorney. Following sentencing [Przybycien] did not 

instruct his attorneys to file a direct appeal. 

[Przybycien] did not attempt to file an appeal on his 

own.

The court further noted that Przybycien did not claim that 

Counsel “failed to file a direct appeal after agreeing to do so,” that 

“he diligently attempted to file a timely appeal but was unable to 

do so through no fault of his own,” or that “either the court or 

[Counsel] failed to advise him of the right to appeal.” See Manning

v. State, 2005 UT 61, ¶ 31, 122 P.3d 628 (listing three examples of 

deprivation of the right to appeal), superseded by rule, Utah R. App. 

P. 4(f). Instead, Przybycien’s argument was limited to asserting 

that he was denied the right to appeal because Counsel “did not 

meet with him following his sentencing hearing to further discuss 

whether he wanted to file an appeal.” 

¶26 The court stated that Przybycien “candidly argued that one 

of his goals is to expand the case law on rule 4(f)” to “require all 
State v. Przybycien

20220278-CA 12 2023 UT App 153

defense counsel to consult with their clients following a 

sentencing hearing,” but the court was not willing to “attempt to 

modify or expand rule 4(f) to meet [Przybycien’s] desired policy.” 

Accordingly, the court ruled that Przybycien “was not deprived 

of his right to a direct appeal” and denied the motion.

¶27 Przybycien appeals.

ISSUE AND STANDARDS OF REVIEW

¶28 Przybycien argues that the district court erred in denying 

his rule 4(f) motion to reinstate his time to file a notice of appeal.8

“We review for correctness the court’s legal conclusion that 

[Przybycien] was not denied his right to appeal, but we give 

deference to the court’s factual findings, reviewing them for clear 

error.” State v. Blanke, 2023 UT App 113, ¶ 15, 537 P.3d 654.

ANALYSIS

¶29 Under Article I, Section 12 of the Utah Constitution, 

criminal defendants have “the right to appeal in all cases.” But 

this right is limited by, among other things, rule 4(a) of the Utah 

Rules of Appellate Procedure, which requires a criminal 

defendant to file a notice of appeal within 30 days from the time 

8. After Przybycien filed his notice of appeal, this court issued an 

order stating, “Pursuant to Rule 10(b) of the Utah Rules of 

Appellate Procedure this matter has been selected to be resolved 

through a simplified appeal process.” See generally Utah R. App. 

P. 10(b)–(c). In his memorandum, Przybycien also argued that we 

should rescind this order and “grant [him] the opportunity for full 

briefing and oral argument.” Oral argument was heard in this 

case—it is not foreclosed by an order calling for the submission of 

memoranda in lieu of full briefing—during which Przybycien

“formally waiv[ed]” his request for additional briefing.
State v. Przybycien 

20220278-CA 13 2023 UT App 153

of sentencing. See Utah R. App. P. 4(a) (“[T]he notice of appeal . . . 

must be filed with the clerk of the trial court within 30 days after 

the date of entry of the judgment or order appealed from.”); State

v. Bowers, 2002 UT 100, ¶ 4, 57 P.3d 1065 (“In a criminal case, it is 

the sentence itself which constitutes a final judgment from which 

appellant has the right to appeal.”) (quotation simplified). This 

30-day limit “is jurisdictional in nature, meaning that an appellate 

court simply has no power to hear the case if a notice of appeal is 

untimely.” State v. Collins, 2014 UT 61, ¶ 22, 342 P.3d 789

(quotation simplified). See id. ¶ 21 (stating that to exercise the 

constitutional right to appeal, “defendants must properly invoke 

the appellate court’s jurisdiction” because “appellate courts do 

not enjoy unlimited power to review the actions of trial courts and 

cannot conjure jurisdiction”) (quotation simplified). 

¶30 An exception to this general jurisdictional bar is found in 

rule 4(f) of the Utah Rules of Appellate Procedure, the purpose of 

which “is to provide criminal defendants who have been 

deprived of an appeal through no fault of their own with an 

avenue for relief.” State v. Brown, 2021 UT 11, ¶ 16, 489 P.3d 152. 

The rule directs, in relevant part, that “[u]pon a showing that a 

criminal defendant was deprived of the right to appeal, the trial 

court shall reinstate the thirty-day period for filing a direct 

appeal.” Utah R. App. P. 4(f). Under the rule and relevant caselaw, 

for the exception to apply, a criminal defendant must “show 

(1) deprivation of the right to appeal and (2) that an appeal would 

have been taken had the defendant been properly informed of the 

right.” State v. Blanke, 2023 UT App 113, ¶ 16, 537 P.3d 654. See 

Collins, 2014 UT 61, ¶ 28 (“[B]oth our reinstatement caselaw and 

rule 4(f) of the Utah Rules of Appellate Procedure require that a 

defendant show he has been ‘deprived’ of the right to appeal. And 

this deprivation requirement implicitly recognizes that 

reinstatement is appropriate only where the defendant can show 

that he would have appealed had he been properly informed.”).
State v. Przybycien

20220278-CA 14 2023 UT App 153

¶31 Under the first element, to establish deprivation of the 

right to appeal, defendants “must demonstrate that they are not 

the cause of the loss of their right to appeal” by “point[ing] to 

some other party—typically, counsel or the trial court—that is at 

fault for the deprivation of the right to appeal.” State v. Stewart, 

2019 UT 39, ¶ 32, 449 P.3d 59. See Collins, 2014 UT 61, ¶ 24 (“Relief 

is not available to a defendant properly informed of his appellate 

rights who simply lets the matter rest, and then claims that he did 

not waive his right to appeal.”) (quotation simplified). Indeed, 

rule 4(f)’s use of “the term ‘deprived’ is crucial. That word 

encompasses a narrow range of situations where a defendant 

would have appealed, but had that right taken away or was kept 

from the possession, enjoyment, or use of that right.” Stewart, 2019 

UT 39, ¶ 33 (quotation simplified).

Such circumstances would include: (1) the 

defendant asked his or her attorney to file an appeal 

but the attorney, after agreeing to file, failed to do 

so, (2) the defendant diligently but futilely 

attempted to appeal within the statutory time frame 

without fault on defendant’s part, or (3) the court or 

the defendant’s attorney failed to properly advise 

defendant of the right to appeal.

Manning v. State, 2005 UT 61, ¶ 31, 122 P.3d 628 (quotation 

simplified), superseded by rule, Utah R. App. P. 4(f).9 See Stewart, 

2019 UT 39, ¶ 34.

9. The procedure for reinstating the time to appeal was originally 

articulated in Manning v. State, 2005 UT 61, ¶¶ 26–33, 122 P.3d 628, 

and later codified in rule 4(f) of the Utah Rules of Appellate 

Procedure. See State v. Brown, 2021 UT 11, ¶¶ 14–15, 489 P.3d 152; 

State v. Collins, 2014 UT 61, ¶ 23, 342 P.3d 789. Although “Manning

has been supplanted by rule 4(f),” Brown, 2021 UT 11, ¶ 13, and 

(continued...)
State v. Przybycien 

20220278-CA 15 2023 UT App 153

¶32 Przybycien argues “that his right to competent counsel 

includes the right to be consulted with regarding an appeal as 

established in” Roe v. Flores-Ortega, 528 U.S. 470 (2000). 

Accordingly, he contends that he received ineffective assistance 

when Counsel “neglect[ed] to consult with him, an 18 year-old, 

about an appeal after he was sentenced to serve a life sentence in 

prison” and that this ineffective assistance deprived him of his 

right to appeal, as required under rule 4(f). Because we hold that 

Counsel did not perform deficiently in not consulting with 

Przybycien post-sentence regarding his appeal prospects, his 

argument necessarily fails.10

therefore “does not supply a valid procedural basis for accessing 

the right to appeal separate and apart from rule 4(f),” id. ¶ 15, 

Manning nevertheless “inform[s] the discussion of what rule 4(f) 

means by ‘deprived of the right to appeal,’” id. ¶ 16. See State v. 

Stewart, 2019 UT 39, ¶ 35, 449 P.3d 59 (“Manning and the examples 

[of deprivation of the right to appeal] cited therein align with the 

language of rule 4(f).”). We note, however, that the advisory 

committee’s note for rule 4(f) that previously referenced Manning

has since been removed. Compare Utah R. App. P. 4(f) advisory 

committee’s note (2019) (“Paragraph (f) was adopted to 

implement the holding and procedure outlined in Manning v. 

State, 2005 UT 61, 122 P.3d 628.”), with id. R. 4(f) (2020) (containing 

no advisory committee note and noting in the amendment notes 

that “[t]he 2020 amendment deleted that Advisory Committee 

note”).

10. Przybycien additionally argues that the district court erred in 

limiting its analysis of his rule 4(f) motion to the three examples 

of deprivation of the right to appeal articulated in Manning and 

argues that “the ineffective assistance of counsel analysis 

described by the U.S. Supreme Court in” Roe v. Flores-Ortega, 528 

U.S. 470 (2000), “can be used to consider whether a defendant had 

(continued...)
State v. Przybycien 

20220278-CA 16 2023 UT App 153

¶33 A claim of ineffective assistance of counsel requires an 

appellant to show both that (1) “counsel’s performance was 

deficient” and (2) “the deficient performance prejudiced the 

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). “A 

defendant’s inability to establish either element defeats a claim for 

ineffective assistance of counsel.” State v. Cruz, 2020 UT App 157, 

¶ 17, 478 P.3d 631 (quotation simplified), cert. denied, 481 P.3d 1040 

(Utah 2021). Here, we need only discuss the first prong of the 

inquiry.

¶34 To satisfy the deficient performance prong, the appellant 

must show that defense counsel’s “representation fell below an 

objective standard of reasonableness.” Strickland, 466 U.S. at 688. 

This standard is “highly deferential” to defense counsel in that the 

defendant must overcome the “strong presumption that counsel’s 

conduct falls within the wide range of reasonable professional 

assistance,” id. at 689, and “the ultimate question is always 

whether, considering all the circumstances, counsel’s acts or 

omissions were objectively unreasonable,” State v. Scott, 2020 UT 

13, ¶ 36, 462 P.3d 350. See Strickland, 466 U.S. at 688 (“In any case 

presenting an ineffectiveness claim, the performance inquiry 

must be whether counsel’s assistance was reasonable considering 

all the circumstances.”).

¶35 In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the United States 

Supreme Court addressed ineffective assistance of counsel in the 

been ‘deprived’ of the right to appeal under Rule 4(f).” The State 

argues that “[e]ven assuming that rule 4(f) permits reinstatement 

based on a showing of ineffectiveness of counsel, [Przybycien] 

fails to show trial counsel was ineffective.” We ultimately hold 

that Przybycien did not receive ineffective assistance under 

Flores-Ortega, and so we need not consider whether ineffective 

assistance of counsel might constitute an independent basis for 

concluding there was deprivation of the right to appeal under rule 

4(f).
State v. Przybycien 

20220278-CA 17 2023 UT App 153

context of attorney consultations regarding possible appeals.

Although stating that “the better practice is for counsel routinely 

to consult with the defendant regarding the possibility of an 

appeal,” id. at 479, the Court specifically rejected a “bright-line 

rule that counsel must always consult with the defendant 

regarding an appeal,” id. at 480. Instead, the Court held that 

counsel has a constitutionally imposed duty to 

consult with the defendant about an appeal when 

there is reason to think either (1) that a rational 

defendant would want to appeal (for example, 

because there are nonfrivolous grounds for appeal), 

or (2) that this particular defendant reasonably 

demonstrated to counsel that he was interested in 

appealing.

Id. Such a determination can be made “[o]nly by considering all 

relevant factors in a given case.” Id. “Although not determinative, 

a highly relevant factor in this inquiry [is] whether the conviction 

follows a trial or a guilty plea, both because a guilty plea reduces 

the scope of potentially appealable issues and because such a plea 

may indicate that the defendant seeks an end to judicial 

proceedings.” Id. A further consideration is “whether the

defendant received the sentence bargained for as part of the plea.”

Id.

¶36 Przybycien argues that Counsel had a duty under both

rationales to consult with him regarding his right to appeal his

sentence. We address each in turn.

¶37 Initially, Przybycien argues that Counsel had a duty to

consult with him about his right to appeal “because a rational 

defendant, under the circumstances, would want to appeal from

the district court’s sentencing order, sending [him], an 18 year
State v. Przybycien 

20220278-CA 18 2023 UT App 153

old[11] to prison” and that Counsel therefore performed deficiently

in not doing so. Specifically, he asserts that circumstances relevant

to the determination “include the judge’s expressed concern that

the State did not have a factual circumstance that met the elements

of homicide as there was real doubt whether [he] caused the death

in question.” He further contends that a rational defendant would

be motivated to appeal “to avoid the onerous procedural bars of

the Postconviction Remedies Act.” Lastly, he asserts that a 

reasonable defendant would have wanted to appeal to raise a 

claim of ineffective assistance on the ground that Counsel failed

to raise the district court’s concerns relating to legal causation at 

sentencing as a justification for probation.

¶38 Additionally, although one of his trial attorneys testified

that prior to sentencing he did discuss with Przybycien the

possibility of appealing an unfavorable sentence and that he 

believed Przybycien to have been “fully advised of his right to 

appeal” at the time of sentencing, Przybycien argues that the 

record does not establish that he was consulted regarding his right 

to appeal. He asserts “that being advised of the right to appeal 

(either in the written plea statement, or in pre-plea discussion 

with counsel, or by the judge at sentencing) is not the same as 

post-judgment consultation about the pros and cons of an appeal 

on the specifics of the case, and an earnest attempt to determine 

the defendant’s wishes with respect to the right to appeal.” 

Indeed, this definition of “consult” comports with Flores-Ortega, 

in which the Court clarified that it “employ[ed] the term ‘consult’ 

to convey a specific meaning—advising the defendant about the 

advantages and disadvantages of taking an appeal, and making a 

reasonable effort to discover the defendant’s wishes.” Id. at 478. 

But even assuming that Counsel did not consult with Przybycien 

regarding his right to appeal either before or after sentence was 

11. We note that while Przybycien was 18 years old at the time of 

J.B.’s death, he was actually 19 at the time of sentencing. 
State v. Przybycien 

20220278-CA 19 2023 UT App 153

announced, under the circumstances of this case, Counsel did not 

perform deficiently in not doing so. 

¶39 Here, the “highly relevant factor in” the deficient 

performance inquiry, i.e., “whether the conviction follows a trial 

or a guilty plea,” id. at 480, weighs against Przybycien. Indeed, 

“the scope of potentially appealable issues,” id., to which he

points is limited to the legal question of whether he caused J.B.’s 

death. Przybycien acknowledges, however, that his right to

appeal, if reinstated under rule 4(f), would be limited to

challenging his sentence—not the underlying guilty plea. See State

v. Nicholls, 2017 UT App 60, ¶ 19, 397 P.3d 709 (“A defendant who 

pleads guilty waives the right to a direct appeal of the conviction 

on the crime charged.”) (quotation simplified), cert. denied, 400 

P.3d 1046 (Utah 2017). Nevertheless, he asserts that “he is trying 

to reinstate the right to appeal from the sentence issued by the 

judge that had questioned ‘whether or not the State of Utah had a 

charge that fit the factual circumstances of this case’ and yet still 

sentenced [him] to serve 5–life in prison.”

¶40 Although Przybycien places great emphasis on the district

court’s concerns regarding legal causation in this case—which, at 

the rule 4(f) evidentiary hearing, the court denied having—any 

such concern played little to no role at the sentencing stage. 

Namely, “by pleading guilty, the defendant is deemed to have 

admitted all of the essential elements of the crime charged and 

thereby waives all nonjurisdictional defects.” State v. Rhinehart, 

2007 UT 61, ¶ 15, 167 P.3d 1046 (quotation simplified). Thus, by 

the sentencing stage, any concerns regarding legal causation had 

been resolved by virtue of the plea agreement. For this same 

reason, Przybycien’s argument that a reasonable defendant

would have appealed in an effort “to avoid the onerous

procedural bars of the Postconviction Remedies Act” is likewise

unavailing. 
State v. Przybycien 

20220278-CA 20 2023 UT App 153

¶41 Furthermore, the consideration of “whether the defendant

received the sentence bargained for as part of the plea,” 

Flores-Ortega, 528 U.S. at 480, also weighs against Przybycien. In

the plea agreement, the State, having agreed to drop six of the

eight charges pending against Przybycien and to amend the other

two, agreed only to recommend that the sentences for both 

remaining charges run concurrently. And the district court did, in 

fact, accept that recommendation and sentence Przybycien to 

concurrent prison terms.

¶42 Additionally, although Przybycien had hoped for 

probation but instead received a sentence of five-years-to-life, the 

record shows that he “obtained a sentence that should have been 

expected.” Manning v. State, 2004 UT App 87, ¶ 33, 89 P.3d 196, 

aff’d on other grounds, 2005 UT 61, 122 P.3d 628. One of his trial 

attorneys testified that one reason Przybycien pled guilty to child 

abuse homicide was that it “matrixed at substantially less than the 

murder conviction would have, at about half.” He also stated that 

Counsel had discussed with Przybycien “that prison was the most 

likely option” and that they “could ask for probation” but “it was 

a longshot.” This is further bolstered by the acknowledgment 

Counsel made to the district court at sentencing that the request 

for “two years at the Utah County Jail,” followed by 60 months of 

supervised probation, was “a big ask.”

¶43 For these reasons, we cannot say that, under the 

circumstances of this case, “a rational defendant would [have] 

want[ed] to appeal” the sentence Przybycien received. 

Flores-Ortega, 528 U.S. at 480.

¶44 Alternatively, Przybycien contends that he “reasonably 

demonstrated to counsel that he was interested in appealing,” id.,

because his sentence of five-years-to-life did not match the two 

years in jail and probation that Counsel sought at sentencing and 

because Counsel confirmed in the subsequent rule 4(f) 

evidentiary hearing that Przybycien had hoped for probation. But 
State v. Przybycien

20220278-CA 21 2023 UT App 153

as discussed above, although Przybycien would have preferred 

probation, he was advised that such a sentence was unlikely, and 

his hope for probation was quite unrealistic, all things considered.

Thus, this desire expressed prior to sentencing, without more, was

insufficient to reasonably demonstrate to Counsel a desire to

appeal. 

¶45 More importantly, despite being informed at sentencing 

that he had 30 days to appeal his sentence, Przybycien did not 

undertake any action that would reasonably demonstrate to 

Counsel that he wished to file a notice of appeal. Indeed, at the 

evidentiary hearing on his rule 4(f) motion, Przybycien conceded 

that he did not “make any effort to have that sentence appealed 

within 30 days from the sentence.” To the contrary, although

Przybycien sent “multiple messages” to Counsel during the 

30-day window, none of the messages mentioned appeal, much 

less did they convey an “interest[] in appealing.” Przybycien’s 

attentions appear to have instead been focused on a potential 

television interview, his cellmate, “and the different types of jobs 

he was doing.” This is the behavior of someone resigned to his 

fate, even while hoping for some media attention, rather than 

someone wishing to appeal or at least revisit the possibility of 

appealing his sentence. 

¶46 Accordingly, for the stated reasons, this claim of deficient 

performance under Flores-Ortega likewise fails.

CONCLUSION

¶47 Under the circumstances of this case, Przybycien has not 

established that Counsel performed deficiently in not taking the 

initiative to consult with him concerning a potential appeal 

following sentencing. We therefore affirm the district court’s 

denial of his motion under rule 4(f) of the Utah Rules of Appellate 

Procedure to reinstate the 30-day period to appeal his sentence.