This opinion is subject to revision before final

p ublication in the Pacific Reporter

2014 UT 61

IN THE



## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

S TATE OF U TAH

, Petitioner

,

v.

R OBERT C OLLINS

, Respondent

.

No. 20130384

December 30, 2014

Third District, Salt Lake The Honorable Judith S.H. Atherton

No. 051905843

Attorneys:

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

C HIEF J USTICE D URRANT authored the opinion o f the Court, in which
J USTICE D URHAM

, J USTICE P ARRISH

, and J USTICE L EE joined.

A SSOCIATE C HIEF J USTICE N EHRING filed a dissenting opinion.

C HIEF J USTICE D URRANT , opinion of the Court:

Introduction

¶1 In this case we are asked to clarify the nature of a

def endant‟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

m otion for reinstatement of his right to appeal and argued that our

decision in Manning v. State 1 and rule 4(f) of the Utah Rules of

1 2005 UT 61, 122 P.3d 628.S TATE v. C OLLINS

Opinion of the Court

2 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 dea dline

. ¶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 reinstatemen t 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 cou rt may exercise its discretion in deciding whether to hold further hearings on the issue or, instead, to rely on the existing

record.

Background

¶4 I n October 2006, a jury found Mr. Collins guilty of one count

of murder and tw o counts of aggravated robbery. M r. 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 dissatisfacti on 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 ye ars to life in prison. At t hat 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

2 Rule 22(c)(1) of t he Utah Rules of Criminal Procedure requires, in part, that “[f]ollowing imposition of sentence, the court shall advise the defendant of defendant‟s right to appeal and the time within which any appeal shall be filed.”Cite as: 2014 UT 61

Opinion of the Court

3 immediately after sentencing, Mr. Simms again advised Mr. Collins that he could file an appeal a nd 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 ch anged 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 reinst atement 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 bein g ex pressly told to do so. S econd, 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 fr om four witnesses, including: (1) Mr. Simms, (2) Elissa Duckworth, a systems administrator over the inmate telephone system at the prison, (3) Sylvia Collin s,
Mr. Collins‟s siste r, and (4) Mr. Collins.

¶9 Mr. Simms recounted that he twice asked Mr. Collins

w hether 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, b ut 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

t elephone log. She testified that the call log showed that Mr. Collins

3 2005 UT 61, 122 P.3d 628.S TATE v. C OLLINS

Opinion of the Court

4 made 385 phone calls between January 2007 and Janua r y 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 inconsiste ntly, however, he also stated that he thought Mr. Simms would automatically file an appeal. His testimony is also unclear regarding when he l earned 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 o f 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 fili ng an appeal in approximately October 2008

, af ter 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 specific ally 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 examin ation 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 i f it ever even got filed.” The

State cross

- examined Mr. Collins regarding his claim that he attempted to call the Salt Lake Leg al 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 d id 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 credibleCite as: 2014 UT 61

Opinion of the Court

5 than [Mr.] Collins‟ testimony.” 4 In assessing whether Mr. Collins was denied his right to appeal

, the court reasoned as follows:

In weighing the testimon y 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 h e 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 l etter 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 t ime 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

4 The tri al court did not specify which parts of Mr. Collins‟s testimony it found less credible than Mr. Simms‟s testimony. Accordingly, there is no specific credibility finding c oncerning

Mr. Collins‟s statements that if he had known of the thirty

- day

deadline

, he “would have been on it right away, writing letters to whoever I had to or making phone calls or whatever,” and “would have contacted Mr. Simms and made sure he filed [the] appeal like [he] thought [Mr. Simms] did.”

5 State v. Collins , 2013 UT App 42, ¶ 9 , 298 P.3d 70.

6 Id. (internal quotation marks omitted).S TATE v. C OLLINS

Opinion of the Court

6 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

i nformed by either court or counsel of his appeal rights, including the time within which the notice of appeal must be filed, is entitled to reinstatement of the appeal

time under Manning . Such a defendant is not required
to show in addition that, had he be en informed of his rights, he would have appealed. 8

¶17 The State petitioned this court for writ of certiorari, which we granted. We have jurisdiction pursuant to Utah Code section

78A

- 3

- 102(3)(a).

Standard of Review

¶18 On certiorari, “we review the decision of t he court of appeals and not that of the trial court.” 9 “[W]e review the decision of the court of ap peals for correctness” and “may affirm the court of appeals‟ decision on any ground supported in the record.” 10

Analysis

¶19 Mr. Collins‟ s claim for reinstatement of his right to appeal

relies on the third o f three scenarios in Manning v. State that we

identified as unconstitutional deprivation s of a crimin al defendant‟s right to appeal

— the scenario where “the court or the defendant‟s attorney failed to properly ad vise defendant of the right to appeal.” 11 The court of appeals held that Mr. Collins was entitled to reinstatement of time for filing an appeal under this scenario and

7 Id. ¶ 13.

8 Id. ¶ 15.

9 American Fork City v. Pena

- Flores , 2002 UT 131, ¶ 7, 63 P.3d 675 (internal quotation marks omitted).

10 Id. (internal quotation marks omitted).

11 2005 UT 61, ¶ 31, 122 P.3d 6 28. We note that in his argument

before the trial court

, Mr. Collins also based his claim for reinstatement on the ground that Mr. Simms failed to file an appeal after being expressly told to do so. But Mr. Collins did not preserve a challenge to the trial court‟s findings of fact on this point nor has he raised this argument before us. See State v. Collins , 2013 UT App 42,
¶ 3 n.1, 298 P.3d 70. Accordingly, in this opinion we do not address

his claim for restatement on this basis.Cite as: 2014 UT 61

Opinion of the Court

7 rejected the State‟s argument “that Manning error is subject to review

for harmless error or prejudice.” 12

¶20 We reverse because the court of appeals erred in not reviewing Mr. Collins‟s claim for reinstatement under a harmless error analysis. Both Manning and rule 4(f) of the Utah Rules of Appellate Procedure require that a defendant show that he has been “deprived” of the right to appeal, which implicitly requires the defendant to show that he would have appealed had he been properly informed. Moreover, the general rule is that all errors are
reviewed for harmlessness, and Mr. Collins has not sho wn that a court‟s failure to comply with rule 22(c)(1) of the Utah Rules of Criminal Procedure falls within the structural error exception to this general rule. Ultimately, we remand the case to the trial court to determine whether Mr. Collins has shown by a preponderance of the evidence that he would have appealed had he been properly informed of his right to appeal.

I. To Have a Valid Claim for Reinstatement of the Right to Appeal

Under Scenario Three of Manning

, a Criminal Defendant Must Show

b y a Prepon derance of the Evidence Th at He Was Not Properly Advised of the Right t o Appeal and That He Would Have Appealed

Had He Been Properly Informed

¶21 Under the Utah Constitution, criminal defendants have “the right to appeal in all cases.” 13 But to exercise this ri ght, defendants must properly invoke the appellate court‟s jurisdiction. “Appellate

courts do not enjoy unlimited power to review the actions of trial courts” and “cannot conjure jurisdiction.” 14

¶22 One procedural prerequisite to invoking appellate court juris diction is the requirement that an aggrieved party file “a notice of appeal with the clerk of the trial court.” 15 This must be done “within 30 days after the date of entry of the judgment or order appealed from.” 16 This deadline is “jurisdictional in nature, ”

12 Collins , 2013 UT App 4 2 , ¶ 10

.

13 U TAH C ONST

. art. I , § 12.

14 State v. Lara , 2005 UT 70, ¶ 10, 124 P.3d 243.

15 U TAH R. A PP

. P. 3 (a).

16 Id. 4(a).S TATE v. C OLLINS

Opinion of the Court

8 meaning that an appellate court simply has no power to hear the case if a notice of appeal is untimely. 17

¶23 There is an exception for criminal defendants, however, to the general rule that requires the timely filing of a notice of appeal.

In Manning v. Stat e , we concluded that a criminal defendant‟s constitutional entitlement to the right to appeal required that we “provide a readily accessible and procedurally simple method by which persons improperly denied their right to appeal can promptly

exercise this right.” 18 We therefore held that “the trial or sentencing court may reinstate the time frame for filing a direct appeal where the defendant can prove . . . that he has been unconstitutionally deprived, through no fault of his own, of his right to appeal.” 19 We

further outlined three scenarios that would each constitute an unconstitutional deprivation of the right to appeal:

(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 defendan t diligently but futilely attempted to appeal within the statutory time frame without fault on defendant‟s part; (3) the court or the defendant‟s attorney failed to properly advise defendant of the right to appeal. 20

A defendant must “demonstrate by a prepo nderance of evidence that she qualifies for any of the exceptions listed above.” 21

¶24 Manning has limits. Manning relief “is not available to a defendant properly informed of his appellate rights who simply let[s] the matter rest, and then claim[s] that he did not waive his right to appeal.” 22 Further, because criminal defendants bear the burden to demonstrate they are entitled to Manning relief, we begin with the presumption that “criminal defendants who fail to file a [timely] notice of appeal . . . have knowi ngly and voluntarily waived th[e] right [to appeal].” 23 Thus, we concluded in Manning that “in the

17 Lara , 2005 UT 70, ¶ 11 (internal quotation marks omitted)

.

18 2005 UT 61, ¶ 26, 122 P.3d 628.

19 Id. ¶ 31.

20 Id. (citations omitted)

.

21 Id. ¶ 32 (internal quotation marks omitted).

22 Id. ¶ 33 (alterations in original) (internal quotation marks omitted).

23 Id. ¶ 1.Cite as: 2014 UT 61

Opinion of the Court

9 vast majority of cases where a defendant fails to comply with the rule 4(a) thirty

- day requirement for filing a timely appeal

, . . . the

defendant will be hel d to have waived his right to appeal.” 24

¶25 Here, Mr. Collins relies on the third Manning s cenario

, alleging that he is entitled to reinstatement of his right to appeal because neither the court nor his attorney properly advised him of his right to appeal in t hat they did not inform him of the time limitations for filing an appeal. Rule 22(c)(1) of the Utah Rules of

Criminal Procedur e requires that “[f]ollowing imposition of sentence, the court shall advise the defendant of defendant‟s right to appeal and the t ime within which any appeal shall be filed.” But a court‟s failure to fully comply with rule 22(c)(1) will not necessarily result in a deprivation of the defendant‟s right to appeal because the defendant‟s attorney may independently inform the defendant of the right. To succeed on a claim of reinstatement

, then, a defendant must show that “neither the sentencing court nor [the defendant‟s] attorney informed [the defendant] of his right to appe al.” 25

¶26 In this case , the trial court failed to comply with rule 22 (c)(1) by not informing Mr. Collins of the thirty

- day deadline for filing an appeal. Mr. Collins‟s counsel, Mr. Simms, likewise failed to properly

advise Mr. Collins of the filing deadline. 26 Moreover , the State has not argued before us that being “properly informed” for purposes of Manning and rule 4(f) is somehow different than being properly instructed under rule 22(c)(1). We therefore assume for purposes of this appeal that Mr. Collins was not “properly informed” because the trial court did not comply wi th rule 22(c)(1) and Mr. Simms did not independently inform Mr. Collins of the applicable deadline.

¶27 But the State argues that the fact that Mr. Collins was not properly informed of his right of appeal does not end the matter. According to the State, Mr. Co llins must additionally show “that but for not being informed of the 30

- day deadline, he would have changed his mi nd and filed a timely appeal.” The State argues that reviewing reinstatement claims for harmless error is not a new

24 Id. ¶ 33.

25 Johnson v. State , 2006 UT 21, ¶ 26, 134 P.3d 1133.

26 Although Mr. Simms told Mr. Collins that he had fourteen da ys to change his mind regarding an appeal, he acknowledged that his advice was not “necessarily correct.”S TATE v. C OLLINS

Opinion of the Court

10 requirement, but instead “ has been an integral, if implicit, part of the

reinstatement rationale from the beginning.”

¶28 We agree with the State for two reasons. First, both 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. In other words, as we state d in Manning , a defendant must establish that something outside of his control “prevented [him] in some meaningful way from proceeding.” 27 Second, the general rule is that all errors are reviewed for harmlessness. And the exception for structural errors is inapplicable

here because the court‟s failure to advise Mr. Collins of the time limitations for filing an appeal as required by rule 22(c)(1) of the Utah Rules of Criminal Procedure was not an error that “infect[ed] the entire trial process.” 28

¶29 As a result, we hold that a defendant seeking reinstatement

under Manning and rule 4(f) has the burden of showing by a preponderance of the evidence that any error was prejudicial. This means that defendants relying on the third Manning scenario must show: (1) that ne ither the court nor counsel properly advised them of their right to appeal, and (2) that “but for” this failure they would have filed an appeal.

A. Both Manning and Rule 4(f) Require a Defendant to Show He w as “Deprived” of the Right to Appeal, Which Impli citly Requires Him to Show That “But For” the Occurrence of an Error Affecting His Right to Appeal, He Would Have Appealed

¶30 Both our reinstatement caselaw and rule 4(f) recognize that reinstatement is only appropriate where a defendant is “deprived”

of th e right to appeal. Implicit in this requirement is the recognition that where a defendant would not have appealed anyway, there is no deprivation of the right to appeal and any error affecting that right would be harmless. Consequently, to show that any er ror was not harmless, a defendant seeking reinstatement relief under the

third Manning scenario must show that had he been properly advised, he would have appealed.

27 2005 UT 61, ¶ 26 (internal quotation marks omitted).

28 Neder v. United States , 527 U.S. 1, 8 (1999) (internal quotation marks omitted).Cite as: 2014 UT 61

Opinion of the Court

11 ¶31 Manning illustrates this point. There we held that a defendant must show by a preponderance of evidence that he was

“ deprived , through no fault of his ow n, of his right to appeal. ” 29 Our use of the term “deprived” was crucial because the word encompasses a narrow range of situations where a defendant would have appealed, but had that right “take[ n] away” or was “kep[t] from the possession, enjoyment, or use ” of that right. 30 Further, we noted that reinstatement is appropriate only where a defendant is

“ prevented in some meaningful way from proceeding.” 31 Implicit in these statements is the recogniti on that a defendant is not “deprived” of the right to appeal or “prevented” from appealing where the defendant would not have appealed regardless of any

error.

¶32 The specific scenarios we outlined in Manning as examples of unconstitutional deprivations of th e right to appeal are not contrary to this general rule requiring a defendant to show that he was “deprived” of the right to appeal. Indeed, there is an express requirement that a defendant show some harm in the first two

scenarios. These scenarios include situations where “(1) the defendant asked his or her attorney to file an appeal but the attorney, after agreeing to fi le, failed to do so [and] (2) the defendant diligently but futilely attempted to appeal within the statutory time

frame without fault on defendant‟s part.” 32 In both scenarios, the

defendant takes affirmative steps to appeal and is ultimately harmed because something outside of his control causes the failure to appeal.

¶33 The third scenario is somewhat different in that it does not

contain an e xpress requirement of a showing of harm because it concerns a situation where the defendant lacks knowledge of his right to appeal and accordingly takes no action to vindicate that right. But this lack of express language does not override the fact

that sc enario three, like scenarios one and two, stems from the

29 2005 UT 6 1, ¶ 31 (emphasis added).

30 See W EBSTER ‟ S T HIRD N EW I NTERNATIONAL D ICTIONARY 606 (2002 ) (defining “deprive” as “1 obs : to take away . . . 3 : to keep from the possession, enjoyment, or use of something”).

31 Manning

, 2005 UT 61, ¶ 26 (emphasis added) (intern al quotation marks omitted)

.

32 Id. ¶ 31 (citation omitted).S TATE v. C OLLINS

Opinion of the Court

12 general rule requiring a defendant to show he was “de prived” of the right to appeal.

¶34 We later addressed Manning scenario three in Johnson v.

State , and again implicitly recognized that claims for rei nstatement are subject to harmless error analysis. 33 There we remanded a defendant‟s case for a hearing on whether he had been denied his right to appeal. 34 In doing so

, we noted that “nothing in the record before us indicates whether [the defendant] was oth erwise notified of his right to appeal.” 35 From this statement it follows that h ad the

defendant been “otherwise notified” of his right to appeal, we would have concluded that the failure on the part of the court and counsel to notify him was harmless.

¶35 Foll owing our decision in Manning , we adopted rule 4(f) of the Utah Rules of Appellate Procedure to implement our holding in

that case. 36 Rule 4(f) requires “a showing that a criminal defendant

was deprived of the right to appeal.” 37 It further provides that “[i ]f the trial court finds by a preponderance of the evidence that the

defendant has demonstrated that t he defendant was deprived of the right to appeal, it shall enter an order reinstating the time for appeal.” 38 Rule 4(f), like our reinstatement caselaw, fo cuses on whether a defendant was “deprived” of the right to appeal, which, again, implicitly recognizes that a defendant is not “deprived” of t he right to appeal where he would not have appealed regardless of any

error.

¶36 Our conclusion that harmless error analysis applies to claims for reinstatement is in accord with the decisions of many

other courts. These decisions establish that there are two different ways in which an error affecting the right to appeal is rendered

harmless.

¶37 First, many courts have ap plied harmless error review in situations where the defendant possessed independent knowledge of

33 2006 UT 21, 134 P.3d 1133.

34 Id. ¶ ¶ 25

– 26.

35 Id. ¶ 26 (emphasis added).

36 U TAH R. A PP

. P. 4 advisory c ommittee ‟s n ote (“Subsection (f) was adopted to implement the holding and procedure outlined in Manning v. State , 2005 UT 61, 122 P.3d 628.”).

37 U TAH R. A PP

. P. 4(f) (emphasis added)

.

38 Id. (emphasis added).Cite as: 2014 UT 61

Opinion of the Court

13 the right to appeal or had in fact appealed. 39 For instance, in Peguero

v. United States , the United States Supreme Court held that rule

39 See, e.g., Tanner v. State , 624 So. 2d 703, 706 (Ala. Crim. App. 1993) (“[B]ecause the appellant has in fact appealed his convictions

and has not suffered any prejudice whatsoever, the error in the failure of the trial court to advise the appellant of his right to appeal is harmless.”); Castro v. Superior Court

, 115 Cal. Rptr. 312, 317 n.13 (Cal. Ct. App. 1974) (“Assuming that counsel was „i neffective‟ in failing to inform defendant of his rights[,] no relief on that basis can be granted unless defendant affirmatively alleges that by so informing him counsel would have told him something he did not already know.” (citation omitted)); People v . Boespflug

, 107 P.3d 1118, 1121 (Colo. App. 2004) (holding that the “trial court should conduct an evidentiary hearing to determine whether the defendant was prejudiced”); Wakily v. State , 483 S.E.2d 313, 318 (Ga. Ct. App. 1997) ( concluding that any error in failing to advise defendant of his appellate rights was harmless because “ [i] mmediately after sentencing, appointed trial counsel informed the court that [t he defendant] desired to appeal” and “[t] he court immediately appointed appellate coun sel ”); Peo ple v. Crump , 801 N.E.2d 1, 5

– 6 (Ill. App. Ct. 2003) (holding that a defendant waived his right to a direct appeal where he “was substantially advised of his appeal rights,” including the fact that the defendant had thirty days to file an appeal); State v . Dafoe , 463 A.2d 770, 773 (Me. 1983) (holding that the defendant was not prejudiced because “he was . . . permitted to perfect [a] direct appeal[]”); People v. Grant , No. 237899, 2003 WL
21108468, at *4 (Mich. Ct. App. May 15, 2003) (per curiam) (holding that a court‟s failure to properly advise a defendant regarding the defendant‟s appellate rights was harmless because “defendant has already appealed his sentence”); Novak v. State , 787 S.W.2d 791, 794 (Mo. Ct. App. 1990 ) (holding that a defendant is not p rejudiced by a trial court‟s failure to inform him of his right to appeal “if the defendant knows of his right to appeal his conviction”); Wilson v.

State , 833 N.W.2d 492, 498 (N.D. 2013) (holding that a defendant was not prejudiced by a trial court‟s fail ure to inform him of his right to appeal because the defendant “ had independent knowledge of his right to appeal”); State v. Fox

, No. 11AP

- 106, 2011 WL 2201666, at *1 (Ohio Ct. App. June 7, 2011) (holding that a defendant was not harmed by a trial court‟s failure to mention the right to appeal since the appeal would have had no practical effect on the outcome); White

v. State , 208 S.E.2d 35, 40 (S.C. 1974) (holding “that there was no reversible error in the trial and that there was not an arguably (continued)S TATE v. C OLLINS

Opinion of the Court

14 32(a)(2) of the Federal Rules of Criminal Procedure, requiring the court to advise a defendant who has pled not guilty of his right to appeal, is subject to harmless error analysis. 40 And the Court concluded that the defendant in that case was not prejudiced by the

trial court‟s error in not advising him of his right to appeal since he already possessed independent knowledge of that right. 41

¶38 Second, several courts have concluded that an error affecting the right to appeal is rendered harmless where the defendant would not have appe aled regardless of the error. 42 For

instance, in Roe v. Flores

- Ortega

, 43 the United States Supreme Court applied the same “but for” test that we apply in this case to a claim by a defendant that her attorney rendered ineffective assistance of counsel by fail ing to file a notice of appeal after promising to do so. The Court stated that a defendant would not be entitled to relief “[i] f
the defendant cannot demonstrate that, but for counsel‟ s deficient

meritorio us ground of appeal, even if notice of intention to appeal had been timely served”); Hauck v. State , 162 P.3d 512, 515 (Wyo. 2007) (concluding that the defendant was denied his right to appeal and noting that “[t]he record does not otherwise reflect that [ he] knew of his right to appeal and the process involved to effectuate that right”).

40 526 U.S. 23, 26

– 30 (1999). We note that former rule 32(a)(2) has since been replaced by rule 32(j)(1) of the Federal Rules of Criminal

Procedure.

41 Id. at 29

– 30.

42 See, e.g. , Shelton v. Comm’r of Corr

. , 977 A.2d 714, 721

– 22 (Conn. App. Ct. 2009) (holding that to establish prejudice a “defendant must demonstrate that there is a reasonable probability that, but for counsel‟s deficient failure to consult with him about an ap peal, he would have timely appealed” (internal quotation marks omitted));

State v. Patton , 195 P.3d 753, 767 (Kan. 2008) (requiring a defendant to “prove that, had he or she been properly informed, a timely appeal would have been sought”); Commonwealth v. Markowitz , 32 A.3d 706, 716 (Pa. Super. Ct. 2011) (“Where counsel has not advised his client about the client‟s appellate rights, the question becomes whether that failure caused actual prejudice to the petitioner, i.e. , but for counsel‟s

deficient failure to consult with him about an appeal, he would have timely appealed.” (internal quotation marks omitted)).

43 528 U.S. 470 (2000).Cite as: 2014 UT 61

Opinion of the Court

15 perf ormance, he would have appealed.” 44 It further noted that without this showing, “ counsel‟ s deficient performance has not deprived him of anything, an d he is not entitled to relief.” 45 The Court continued that “to show prejudice . . . a defendant must demonstrate that there is a reasonable probability that, but fo r counsel‟ s deficient failure to consult with him about an appeal, he would have timely appealed. ” 46

¶39 Moreover, the Supreme Court of Kansas has adopted the “but for” causation test pressed by the State in this case. This is particularly relevant because in M anning , we adopted Kansas‟ approach for assessing reinstatement claims. 47 In State v. Patton , the Kansas Supreme Court held that

[i]f the sentencing hearing transcript demonstrates that the district judge did not adequately inform the defendant orally, and the State is unable to demonstrate that the defendant had actual knowledge of the required information from some other source, the defendant must then prove that, had he or she been properly informed, a timely appeal would have been sought. 48

The Kansas rul e requires a defendant to show both that he was not properly informed regarding his right to appeal and that but for this lack of information he would have appealed. The court noted that its holding was supported by two main rationales. First, it stated th at this causation requirement “is consistent with this court‟s original admonition that a defendant may not let the matter rest.” 49 And second, the court stated that “we believe [the causation requirement] is true to United States Supreme Court precedent [i n Peguero v.

United States ].” 50

44 Id. at 484 (emphasis added).

45 Id. (emphasis added).

46 Id. (emphasis added).

47 2005 UT 61, ¶ 29.

48 195 P.3d at 767.

49 Id. (i nternal quotation marks omitted).

50 Id.S TATE v. C OLLINS

Opinion of the Court

16 ¶40 We find the Kansas Supreme Court‟s approach in Patton persuasive. It ensures that reinstatement relief is given only to those defendants who fail to app eal “through no fault of their own.” 51 And it is in accord with the posit ion taken by the Supreme Court in Peguero and Flores

- Ortega , as well as a majority of the states, that

reinstatement claims should be reviewed for harmless error.

¶41 In the case before us, the court of appeals concluded that the state and federal cases subjec ting claims for reinstatem ent to harmless error review were inapposite because “the large majority of

. . . cases [that utilized the harmless error analysis did] so because, unlike [Mr.] Collins, the defendant either appealed anyway or learned of those rig hts from another source.” 52 While neither of those fact patterns occurred here, the point remains that those courts did apply a harmless error analysis to a claim for reinstatement. And the fact pattern now before us has been addressed by several courts,

in cluding the United States Supreme Court, and they have also applied harmless error analysis by requiring defendants to show that had they been properly informed of their right to appeal they would have appealed.

¶42 Moreover, the cases applying harmless error analysis do so because “as a general rule, . . . a court‟s failure to give a defendant advice required by the [rules] is a sufficient basis for . . . relief only when the defendant is prejudiced by the court‟s error.” 53 A mere “technical violation of [a] [r ]ule [is] insufficient to justify . . . relief” without a showing of prejudice. 54 And, as we noted in Manning

, reinstatement is appropriate only where a defendant is “ prevented in

some meaningful way from proceeding ” with an appeal. 55 So the

mere fact that a majority of the cases applying harmless error analysis involved scenarios where the defendant had independent knowledge of the right to appeal or had actually appealed does not preclude application of the analysis to a scenario where a defendant

was not properly informed of his right to appeal, but would not have appealed anyway. A defendant who actually files an appeal or has independent knowledge of the right to appeal, including the relevant

51 Manning , 2005 UT 61, ¶ 4 2.

52 State v. Collins , 2013 UT App 42, ¶ 11, 298 P.3d 70.

53 Peguero , 526 U.S. at 27.

54 Id. at 28 (internal quotation marks omitted).

55 Manning , 2005 UT 61, ¶ 26 (emphasis added) (internal

qu otation marks omitted)

.Cite as: 2014 UT 61

Opinion of the Court

17 filing deadline, has not been prevented from proceeding with an appeal and suffers no harm. Similarly, a defendant who had no intention of appealing has not been prevented from proceeding with an appeal and has also suffered no harm.

¶43 In sum, Manning provides that reinstatement relief is appropriate only where a defe ndant establishes that he was “deprived” of the right to appeal. Rule 4(f) contains the same requirement. Implicit in this requirement is the recognition that a defendant who would not have appealed even if properly advised of his right to appeal should no t be entitled to reinstatement relief.

B. Application of Harmless Error Analysis Here Conforms to Our General Approach of Reviewing Errors for Harmlessness

¶44 Moreover, applying harmless error analysis is the general rule, not the exception. 56 A harmless erro r is one “that is sufficiently inconsequential that there is no reasonable likelihood that it affected the outcome of the proceedings.” 57 We conclude that the general rule governs here because neither the exception for structural errors nor the approach we took in State v. Alexander 58 applies here.

1. The Exception for Structural Errors is Inapplicable Here

¶45 Structural errors are not subject to harmless error analysis. But the class of errors constituting structural error is narrow. Indeed, “[s]tructural error is reserved for a „very limited class of cases‟ in

which a constitutional error so undermines the fairness of the proceedings that prejudice must be presumed.” 59

56 U TAH R. C RIM

. P. 30( a) (“Any error, defect, irregularity or variance which does not affect the substantial rights of a party shall be disregarded.”); see State v. Neeley , 748 P.2d 1091, 1095 (Utah 1988) (“We do not presume prejudi ce upon a showing of an irregularity in the proceedings below; rather, we will closely examine the record to determine the effect the error may have had on the outcome of the proceedings.”).

57 H.U.F. v. W.P.W. , 2009 UT 10, ¶ 44, 203 P.3d 943 (internal

quot ation marks omitted).

58 2012 UT 27, 279 P.3d 371.

59 State v. Arguelles , 2003 UT 1, ¶ 94 n.23, 63 P.3d 731 (quoting Johnson v. United States , 520 U.S. 461, 468

– 69 (1997)).S TATE v. C OLLINS

Opinion of the Court

18 ¶46 Structural errors differ from other errors in that they “affect[] the framework within which t he trial proceeds” 60 by

“ i nfect[ing] the entire trial process” and “ render [ing] [the] trial fundamentally unfair .” 61 An error is not structural where it is “simply an error in the trial process itself.” 62 Among the errors that are deemed structural are: (1) a complete denial of right to counsel, (2) the lack of an impartial trial judge, (3) racial discrimination in grand jury selection, (4) denial of the right of self

- representation at trial, (5) denial of the right to a public trial, and (6) an erroneous

reas onable

- doubt instruction. 63

¶47 The trial court‟s failure to properly inform Mr. Collins of his right to appeal in accordance with Utah Rule of Criminal Procedure 22(c)(1) does not constitute a structural error. Although not informing Mr. Collins of the relevan t thirty

- day deadline was error, the error did not “infect the entire trial process” rendering the “trial fundamentally unfair.” Indeed, Mr. Collins‟s lack of notice regarding the relevant appeals deadline had no effect whatsoever on the

“framework” of the trial proceedings, nor does it fit into the class of errors previously defined by the Supreme Court as structural errors.

¶48 Mr. Collins argues that Rodriq uez v. United States 64 and

Penson v. Ohio 65 stand for the proposition that the failure by counsel

to advi se a defendant of the right to appeal is equivalent to the complete denial of counsel. But this argument is misplaced. In

Rodri q uez , the Supreme Court clarified that a defendant seeking reinstatement of the right to appeal need not show “some likelihood

of success on appeal.” 66 But the Court did not hold, as Mr. Collins suggests, that claims for reinstatement are not subject to harmless error review. In fact, a defendant‟s burden to establish prejudice with respect to such claims is much lower than showing “ some likelihood of success on appeal.” To establish prejudice, all a defendant must show is that he would have appealed “but for” the

60 Johnson , 520 U.S. at 468 (internal quotation marks omitted).

61 Neder , 527 U.S. at 8 (internal quotation marks omitted).

62 Id. (internal quotation marks omitted).

63 Johnson , 520 U.S. at 469.

64 395 U.S. 327 (1969).

65 488 U.S. 75 (1988).

66 395 U.S. at 330.Cite as: 2014 UT 61

Opinion of the Court

19 court‟s and his attorney‟s failure to properly inform him of the right to appeal.

¶49 Penson is also distinguishable. There a defendant requested that his attorney file an appeal. 67 The attorney did so but also sought withdrawal from the case because he believed the appeal was

meritless. 68 The appeals court allowed counsel to withdraw but then rejected defendant‟s motion to have ne w counsel appointed. 69
Instead, the court conducted its own review of the record and ultimately affirmed all but one of the defendant‟s convictions. The Supreme Court concluded that it was “inappropriate to apply either the prejudice requirement of Strickla nd or . . . harmless

- error analysis” because the defendant was “entirely without the assistance of counsel on appeal.” 70 Here, Mr. Collins argues only that his counsel did not properly advise him regarding the relevant appeals
deadline. He was not, l ike the defendant in Penson

, entirely denied the rig ht to counsel.

¶50 Ultimately, the failure to properly inform Mr. Collins of the relevant thirty

- day deadline to appeal does not fall within the class

of structural errors because it did not “infect the entire trial process” rendering the “trial fundamentally unfair.” And because the error was not structural, we apply the general rule that errors must be

reviewed for harmlessness.

2. Our Approach in State v. Alexander is Inapplicable Here

¶51 The court of appeals also co ncluded that claims for reinstatement are not subject to harmless error review under the approach we took in State v. Alexander

. 71 In that case

, we held that a defendant seeking to withdraw a plea on the basis that it was not knowing and voluntary need not show prejudice. 72 The court of appeals concluded that Alexander applied here because the “holding rests in part on the difficulty of evaluating whether an uninformed

67 Penson , 488 U.S. at 77.

68 Id. at 78.

69 Id.

70 Id. 88

– 89.

71 2012 UT 27.

72 Id. ¶ 49.S TATE v. C OLLINS

Opinion of the Court

20 defendant would, had he or she been informed, nevertheless have pleaded guilty.” 73

¶52 But this practical difficulty was only one of three rationales for our holding in Alexander . In fact, the first two reasons we provided for declining to require a showing of prejudice where a defendant seeks withdrawal of a plea relate d to the language and

intent o f the rule and statute at issue in that case. Specifically, we noted first that “a showing of prejudice conflicts with our intent when adopting the language of rule 11(l).” 74 And second, we noted that “the Legislature has not required a showing of prejudice

. . . . [But instead] provided that defendants need show only that their pleas were not knowingly and voluntarily made.” 75

¶53 Neither of those rationales is applicable here. As to the first rationale, the language of our opinion in Manning and rule 4(f) of the Utah Rules of Appellate Procedure implicitly requires, by use of words such as “deprived,” a showing of prejudice by the defendant.

So whereas in Alexander requiring a showing of prejudice conflicted with the language of the applicable rule, rule 11(l) of the Utah Rules of Criminal Procedure, here a showing of prejudice is mandated by rule 4(f) of the Utah Rules of Appellate Procedure and our Manning

decision. And as to the second rationale, it is inapplicable here given that the Legislature has not enacte d a statute governing claims for reinstatement. So even if we assume that the task of determining whether a defendant would have appealed had he been properly informed of the right to appeal will present the same practical

difficulties we identified in Ale xander , these difficulties do not override the fact that the governing caselaw and rule requires that a defendant make a showing of harm.

I I

. We Remand f or the Trial Court to Consider Whether Mr. Collins Has Met His Burden of Showing That Had He Been Prope rly Advised of His Right to Appeal, He Would Have Appealed

¶54 Having concluded that Mr. Collins must show that he would have appealed had he been properly informed of his right to appeal, we now turn to a discussi on of whether he has satisfied his

burden.

73 Collins , 2013 UT App 42, ¶ 14.

74 Alexander , 2012 UT 27, ¶ 46.

75 Id. ¶ 47.Cite as: 2014 UT 61

Opinion of the Court

21 ¶55 Th e State argues that Mr. Collins has never claimed that the trial court‟s and counsel‟s failure to properly inform him of his right to appeal caused him not to appeal. Inste ad, the State suggests that

Mr. Collins has “consistently claimed that Simms caused him not to appeal by failing to file an appeal when [Mr. Collins] timely asked

him to.”

¶56 The State‟s characterization of Mr. Collins‟s claim is not entirely accurate. In fact, Mr. Collins did testify that he would have acted differently had either the court or Mr. Simms informed him of the thirty

- day deadline. He first asserted that had he known of the

deadline

, he “would have been on it right away, writing letters to whoever I had to or making phone calls or whatever.” And w hen asked specifically if he woul d have done anything differently had he known of the thirty

- day deadli ne, he testified that had he “would have contacted Mr. Simms and made sure he filed [the] appeal like [he] thought [Mr. Simms] did.”

¶57 But it is unclear from the record whether the trial c ourt found any of these statements to be credible. The court did find that

Mr. Simms‟s testimony was more credible than Mr. Collins‟s testimony. But the only point on which both Mr. Collins and

Mr. Simms testified concerned whether Mr. Collins affirmativel y told Mr. Simms to file an appeal. Mr. Simms‟s testimony did not directly address what Mr. Collins might have done had he known of the thirty

- day deadline for filing an appeal. And the court did not make a specific credibility finding with respect to Mr. Collins‟s testimony concerning the thirty

- day deadline. Because of this ambiguity

, we are unable to determine whether Mr. Collins met his burden of showing that the court‟s and counsel‟s failure to properly inform him of his right to appeal caused him to n ot appeal. Accordingly, we remand the case to the trial court to determine whether Mr. Collins has met this burden, which it can do by holding

further hear ings on the issue or rely ing on the existing record.

Conclusion

¶58 We reverse the court of appeals‟ deci sion because the court erred by not reviewing Mr. Collins‟s claim for harmless error. Both Manning and rule 4(f) of the Utah Rules of Appellate Procedure require that a defendant show he was “deprived” of the right to appeal, and so implicitly require a de fendant to show that any error affecting his right to appeal caused some harm. Accordingly, we

remand this case to the trial court to determine whether Mr. Collins can show by a preponderance of the evidence that the court‟s andS TATE v. C OLLINS

Opinion of the Court

22 counsel‟s failure to pro perly inform him caused him not to appeal, which it can do by holding further hearings on the issue or relying on the existing record.

A SSOCIATE C HIEF J USTICE N EHRING , dissenting :

¶60 I respectfully dissent. Mr. Collins possessed a right to appeal, prote cted by the Utah Constitution. The majority reasons that if a defendant claims to have been deprived of his right to appeal, he must demonstrate that he would have appealed had he been properly advised of his appeal rights. I am baffled how a

defendant c ould make the showing necessary to overcome a claim of harmlessness when he did not even know of his right to appeal. A decision to commence or forgo an appeal involves a multitude of considerations. Knowledge of the existence of a right of appeal is, by far, the most important of these considerations. A defendant who does not know he has a right of appeal cannot be penalized for failing to exercise it. Accordingly, I would affirm the court of appeals.