This opinion is subject to revision before final

publication in the Pacific Reporter

2014 UT 61

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Petitioner,

v.

ROBERT COLLINS,

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

 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.

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 

1 2005 UT 61, 122 P.3d 628.
STATE v. COLLINS

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 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 

2 Rule 22(c)(1) of the 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.”
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Opinion of the Court

3

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 

3 2005 UT 61, 122 P.3d 628.
STATE v. COLLINS

Opinion of the Court

4

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 
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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 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 

4 The trial 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 concerning 

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).
STATE v. COLLINS

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 

informed 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 been 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 the court of 

appeals and not that of the trial court.”9 “[W]e review the decision of 

the court of appeals 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 of three scenarios in Manning v. State that we 

identified as unconstitutional deprivations of a criminal defendant‟s 

right to appeal—the scenario where “the court or the defendant‟s 

attorney failed to properly advise 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 628. 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.
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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 shown 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 

by a Preponderance of the Evidence That He Was Not Properly 

Advised of the Right to 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 right, 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 

jurisdiction 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 42, ¶ 10.

13 UTAH CONST. art. I, § 12.

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

15 UTAH R. APP. P. 3(a).

16 Id. 4(a).
STATE v. COLLINS

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. State, 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 defendant 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 preponderance 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 knowingly 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.
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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 held to have waived his right to appeal.”24

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

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 that they did not inform him of the time 

limitations for filing an appeal. Rule 22(c)(1) of the Utah Rules of 

Criminal Procedure requires 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.” 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 appeal.”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 with 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. Collins must additionally show “that but 

for not being informed of the 30-day deadline, he would have 

changed his mind 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 days 

to change his mind regarding an appeal, he acknowledged that his 

advice was not “necessarily correct.” 
STATE v. COLLINS

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 stated 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 neither 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 was 

“Deprived” of the Right to Appeal, Which Implicitly 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 the 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 error 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).
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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 own, 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 recognition 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 the 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 file, 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 express 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 scenario three, like scenarios one and two, stems from the 

29 2005 UT 61, ¶ 31 (emphasis added).

30 See WEBSTER‟S THIRD NEW INTERNATIONAL DICTIONARY 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) (internal 

quotation marks omitted).

32 Id. ¶ 31 (citation omitted).
STATE v. COLLINS

Opinion of the Court

12

general rule requiring a defendant to show he was “deprived” of the 

right to appeal.

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

State, and again implicitly recognized that claims for reinstatement 

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 otherwise notified of 

his right to appeal.”35 From this statement it follows that had 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 Following 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 the 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, focuses on 

whether a defendant was “deprived” of the right to appeal, which, 

again, implicitly recognizes that a defendant is not “deprived” of the 

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 applied 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 UTAH R. APP. P. 4 advisory committee‟s note (“Subsection (f) 

was adopted to implement the holding and procedure outlined in 

Manning v. State, 2005 UT 61, 122 P.3d 628.”).

37 UTAH R. APP. P. 4(f) (emphasis added).

38 Id. (emphasis added).
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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 „ineffective‟ 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 [the 

defendant] desired to appeal” and “[t]he court immediately 

appointed appellate counsel”); People 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 prejudiced 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 failure 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)
STATE v. COLLINS

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 appealed 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 failing 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 

 

meritorious 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 appeal, 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).
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Opinion of the Court

15

performance, he would have appealed.”44 It further noted that

without this showing, “counsel‟s deficient performance has not 

deprived him of anything, and 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 for 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 Manning, 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 rule 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 that 

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 [in 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. (internal quotation marks omitted).

50 Id.
STATE v. COLLINS

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 appeal “through no fault of their own.”51 

And it is in accord with the position 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 subjecting claims for reinstatement 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 rights 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, 

including 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, ¶ 42.

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 

quotation marks omitted).
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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 defendant 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 not 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 error 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. Alexander58 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 UTAH R. CRIM. 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 prejudice 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 

quotation 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)).
STATE v. COLLINS

Opinion of the Court

18

¶46 Structural errors differ from other errors in that they 

“affect[] the framework within which the trial proceeds”60 by 

“infect[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 

reasonable-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 relevant 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 Rodriquez v. United States64 and 

Penson v. Ohio65 stand for the proposition that the failure by counsel 

to advise a defendant of the right to appeal is equivalent to the 

complete denial of counsel. But this argument is misplaced. In 

Rodriquez, 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.
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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 new 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 Strickland 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, like the defendant in Penson, entirely denied 

the right 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 concluded 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.
STATE v. COLLINS

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 related to the language and 

intent of 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 enacted 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 Alexander, these difficulties do not 

override the fact that the governing caselaw and rule requires that a 

defendant make a showing of harm.

II. We Remand for the Trial Court to Consider Whether Mr. Collins 

Has Met His Burden of Showing That Had He Been Properly 

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 discussion of whether he has satisfied his 

burden.

73 Collins, 2013 UT App 42, ¶ 14.

74 Alexander, 2012 UT 27, ¶ 46.

75 Id. ¶ 47.
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Opinion of the Court

21

¶55 The 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. Instead, 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 when 

asked specifically if he would have done anything differently had he 

known of the thirty-day deadline, 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 court 

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 affirmatively 

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 not 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 hearings on the issue or relying on the existing record.

Conclusion

¶58 We reverse the court of appeals‟ decision 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 defendant 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 and 
STATE v. COLLINS

Opinion of the Court

22

counsel‟s failure to properly inform him caused him not to appeal, 

which it can do by holding further hearings on the issue or relying 

on the existing record.

ASSOCIATE CHIEF JUSTICE NEHRING, dissenting:

¶60 I respectfully dissent. Mr. Collins possessed a right to 

appeal, protected 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 could 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.