2013 UT App 12

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

S TATE OF U TAH

,

Plaintiff and Appellee,

v.

M OHAMED D AFFALLA K ABOR

,

Defendant and Appellant.

Opinion

No. 20110187

‐ CA

Filed January 17, 2013

Third District, Salt Lake Department

The Honorable Judith S.H. Atherton

No. 071904828

Debra M. Nelson, Attorney for Appellant

John E. Swallow and John J. Nielsen, Attorneys for Appellee

J UDGE S TEPHEN L. R OTH authored this Opinion,

in which J UDGES W ILLIAM A. T HORNE J R

. and J. F REDERIC V OROS J R

. concurred.

ROTH, Judge:

¶1 Mohamed Daffalla Kabor appeals from the denial of his

motion to reinstate his right to appeal. We affirm.

BACKGROUND

¶2 On November 19, 2008, Kabor was convicted of murder,

obstruction of justice, and three counts of discharging a firearmState v. Kabor

20110187

‐ CA 2013 UT App 12 2 from his vehicle. He was sentenced on January 23, 2009, to the

statutory prison terms on each count with the sentences for murder

and obstruction of justice to run consecutively to each other and the

sentences for the firearm offenses to run concurrently with each

other and with the other two sentences. Following sentencing, the

district court failed to notify Kabor of his right to appeal as

required by rule 22(c) of the Utah Rules of Criminal Procedure.

¶3 Kabor filed a notice of appeal on April 10, 2009, seventy

‐

seven days after sentencing. Apparently recognizing that his notice

of appeal was untimely, Kabor subsequently filed a motion and

supporting memorandum to reinstate his time to file an appeal

under rule 4(f) of the Utah Rules of Appellate Procedure. See

generally Utah R. App. P. 4(f) (permitting a defendant to move to

reinstate the right to direct appeal under certain circumstances and

establishing the procedure for doing so). Kabor asserted that

reinstatement was appropriate because he was unconstitutionally

denied the right to appeal by the court’s failure to comply with rule

22(c). The State filed a response to Kabor’s motion and requested

a hearing.

¶4 At the hearing, Kabor testified in his own behalf. He

reported that immediately after trial he informed his trial counsel,

Bradley Rich, that he wanted to appeal. According to Kabor, Rich

discouraged an appeal because his “chances aren’t good.” Kabor

reported that he nevertheless continued to insist on an appeal and

reiterated his desire to appeal when Rich visited him at the jail

prior to sentencing, although he did not repeat this request to Rich

or the court at the sentencing hearing itself. Kabor further ex

‐ plained that while he was aware generally of his right to appeal, he

was never informed by the court or by Rich of the thirty

‐ day

window for doing so. Kabor testified that he first became aware of

the thirty

‐ day time period from a discussion with his cellmate on

March 18, 2009, about sixty days after sentencing. The cellmate

incorrectly informed him that he needed to have his notice of

appeal notarized, which caused further delay in his filing the

notice.State v. Kabor

1 Rich testified that he had explained the interlocutory

appeal process to Kabor after his motion to suppress was denied.

Because this appeal deals with Kabor’s right to appeal the final

judgment and convictions, we discuss only the testimony rele

‐

vant to that issue.

20110187

‐ CA 2013 UT App 12 3 ¶5 The only other witness at the motion hearing was Kabor’s

attorney, Rich, who testified that he spoke with Kabor a number of

times regarding his right to appeal his convictions. Rich explained

that he first spoke with Kabor about the possibility of appeal while

the jury was deliberating during the November 2008 trial. 1

Specifically, he testified that he told Kabor that, if convicted, Kabor

would be sentenced “six or eight weeks down the road.

. . . And

after that, if he chose to do so, he could appeal, but his rights to

appeal wouldn’t mature until after the date of sentencing.” Rich

next addressed the appeal right with Kabor about a week before

the date set for sentencing, in a letter explaining the appeal process.

The letter stated,

As I previously told you[,] following your sentenc

‐ ing, you will have the right to appeal. I confine my

practice to criminal defense trial work and do not do

appeals. If you or your family desire to have some

‐ body in our office handle that, I will put you in touch

with Liz Hunt, who does our appellate work.

. . . If

you and your family cannot afford counsel, I believe

that the judge will appoint you an excellent public

defender to pursue that appeal if you desire. We

would need to make that request to the judge the day

of your sentencing. Let me know what your desire is

in advance of sentencing.

Sadly, I do not see obvious grounds for appeal

that ha[ve] any likelihood of being successful but it

is certainly your right to do that if you choose.State v. Kabor

20110187

‐ CA 2013 UT App 12 4 The letter was dated January 16, 2009, but Rich could not remem

‐

ber if he mailed the letter or hand

‐ delivered it when he visited

Kabor at the jail prior to the January 23 sentencing. At that meeting,

Rich discussed “whether or not [Kabor] wanted to appeal and

whether or not he would be able to hire counsel.” Rich explained

to him that an appeal had to be filed within thirty days of sentenc

‐ ing and informed him that “since there was only 30 days,

. . . if he

wanted Legal Defender[s] to be appointed, we would need to

address that at the time of sentencing

. . . to get appointed counsel

within the mandated 30 days and get [counsel] up to speed to file

the appropriate paperwork during the time.” Kabor “didn’t express

any interest in doing an appeal and told [Rich] that he didn’t want

to appeal or he was thinking he didn’t want to appeal.” Rich left

the meeting with a “distinct impression” that Kabor would not

appeal but told Kabor to give him a final decision at sentencing.

¶6 On January 23, just before sentencing, Rich discussed the

possibility of an appeal with Kabor one last time. He again

explained that an attorney could be appointed if Kabor could not

afford to pay private counsel. When Rich asked Kabor if he wanted

to have an attorney appointed to pursue an appeal, Kabor said that

he did not intend to appeal and therefore did not want an attorney

appointed. Following sentencing, Kabor did not say anything to

Rich that indicated that he had changed his mind about appealing.

¶7 The district court found “Rich[’s testimony] to be credible

and the testimony of

. . . Kabor not to be credible.” Specifically, the

court found that Rich informed Kabor that he had to file an appeal

within thirty days of sentencing and that Kabor told Rich that he

“did not want to appeal.” Because it found that Kabor did not file

a timely appeal despite being informed by Rich of both his right to

appeal and the time frame in which that right must be exercised,

the court concluded that Kabor had not shown by a preponderance

of the evidence that he had been constitutionally deprived of an

opportunity to appeal. As a result, the court denied Kabor’s motion

to reinstate the time for appeal. Kabor now appeals from the denial

of that motion.State v. Kabor

20110187

‐ CA 2013 UT App 12 5 ISSUE AND STANDARDS OF REVIEW

¶8 Kabor contends that the district court wrongly denied his

motion to reinstate the appeal period under rule 4(f) of the Utah

Rules of Appellate Procedure and Manning v. State

, 2005 UT 61, 122

P.3d 628. We review the court’s legal conclusion that Kabor was not

unconstitutionally deprived of his right to appeal for correctness

but give deference to its underlying factual findings, meaning that

we will not overturn them unless they are clearly erroneous. See

State v. Hales

, 2007 UT 14, ¶ 35, 152 P.3d 321 (explaining that a

claim that the defendant’s due process rights had been violated is

“a mixed question of fact and law that we review de novo for

correctness” while “incorporat[ing] a clearly erroneous standard

for the necessary subsidiary factual determinations” (footnote

citations and internal quotation marks omitted)).

ANALYSIS

¶9 Kabor challenges the district court’s decision on three

grounds. First, he asserts that under Manning and rule 4(f), he was

entitled to reinstatement of his appeal right because the district

court failed to advise him of his right to file an appeal following his

sentencing. Second, he contends that if his counsel’s advice

regarding the appeal right can rectify the court’s failure to advise

him, then that advice must be given on the record. Finally, Kabor

argues that even if counsel’s off

‐ the

‐ record statements could

qualify as advice of his right to appeal, those explanations were too

unclear to satisfy the notification requirements. We address each

argument in turn.

I. Kabor Failed To Meet His Burden of Establishing that He Did

Not Knowingly and Voluntarily Waive His Right to Appeal.

¶10 According to Kabor, he is entitled to reinstatement of the

appeal period under the rationale of Manning and rule 4(f) of the

Utah Rules of Appellate Procedure. In Manning

, the supreme courtState v. Kabor

20110187

‐ CA 2013 UT App 12 6 addressed the circumstances under which a defendant may be

unconstitutionally deprived of his or her right to an appeal and the

appropriate process for seeking reinstatement of the right to appeal

after the appeal period has expired. Rule 4(f) “was adopted to

implement the holding and procedure outlined in Manning ” for

seeking reinstatement of the appeal period. Utah R. App. P. 4

advisory committee note. The rule, however, sets forth only the

procedure for requesting a reinstatement of the right to appeal and

does not address the circumstances that would justify reinstate

‐

ment. Utah R. App. P. 4(f). Accordingly, we apply the analysis

described in Manning to decide whether Kabor’s request was

properly denied.

¶11 A defendant is entitled to reinstatement of his direct appeal

right if he “has been prevented in some meaningful way from

proceeding with a first appeal of right.” Manning

, 2005 UT 61, ¶ 26

(citation and internal quotation marks omitted); accord Utah R.

App. P. 4(f). A defendant has not been meaningfully deprived of

his appeal right, however, if he voluntarily waived that right, and

we presume that a defendant has knowingly and voluntarily

waived the right to appeal whenever he fails to file a timely notice

of appeal, see Manning

, 2005 UT 61, ¶¶ 35, 1. Accordingly, the

burden is on the defendant to establish, by a preponderance of the

evidence, that he did not waive that right but was “unconstitution

‐ ally deprived, through no fault of his own, of his right to appeal.”

Id. ¶¶ 18, 31–32; accord Utah R. App. P. 4(f) (“If the trial court finds

by a preponderance of the evidence that the defendant has

demonstrated that he was deprived of his right to appeal, it shall

enter an order reinstating the time for appeal.”). Manning describes

some of the circumstances that support a defendant’s claim that a

waiver was not knowing or voluntary, including, for example,

where

(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 frameState v. Kabor

2 Our supreme court has indicated that these three circum

‐

stances are “distilled

. . . from our case law and a survey of those

relied on in other jurisdictions” but are “not intended to be [the]

exclusive” bases for demonstrating an unconstitutional depriva

‐

tion of an appeal right. Manning v. State

, 2005 UT 61, ¶ 31 n.11,

122 P.3d 628. Kabor has not asserted any other circumstance that

indicates a deprivation of his constitutional right to appeal.

3 In the district court, Kabor alleged that Rich’s failure to

file an appeal after he was requested to do so was an alternative

basis for reinstatement. Kabor has not pursued that claim on

appeal.

20110187

‐ CA 2013 UT App 12 7 without fault on defendant’s part; or (3) the court or

the defendant’s attorney failed to properly advise

defendant of the right to appeal.[ 2 ]

2005 UT 61, ¶ 31 (citations omitted).

¶12 Kabor asserts that he is entitled to reinstatement under the

third exception because the court failed to advise him of his right

to appeal. 3 It is undisputed that the district court failed to notify

Kabor of his appeal right once he had been sentenced, as required

by rule 22(c) of the Utah Rules of Criminal Procedure. See Utah R.

Crim. P. 22(c)(1) (“Following 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.”). The district court

concluded, however, that despite this, Kabor was appropriately

informed of his right to appeal by trial counsel. We agree.

¶13 It is worth emphasizing at the outset that rule 22(c) man

‐

dates that the district court notify a defendant of his appeal right

following the imposition of sentence because it is the most reliable

way to ensure that defendants are made aware of the important

constitutional right to appeal a conviction or sentence. The UnitedState v. Kabor

20110187

‐ CA 2013 UT App 12 8 States Supreme Court has identified the benefits of such an

approach:

It will often be the case that, as soon as sentence is

imposed, the defendant will be taken into custody

and transported elsewhere, making it difficult for the

defendant to maintain contact with his attorney. The

relationship between the defendant and the attorney

may also be strained after sentencing, in any event,

because of the defendant’s disappointment over the

outcome of the case or the terms of the sentence. The

attorney, moreover, concentrating on other matters,

may fail to tell the defendant of the right to appeal,

though months later the attorney may think that he

in fact gave the advice because it was standard

practice to do so. In addition, if the defendant is

advised of the right by the judge who imposes

sentence, the defendant will realize that the appeal

may be taken as of right and without affront to the

trial judge, who may later rule upon a motion to

modify or reduce the sentence. Advising the defen

‐

dant of his right at sentencing also gives him a clear

opportunity to announce his intention to appeal

. . . .

Peguero v. United States

, 526 U.S. 23, 26–27 (1999) (citation omitted).

¶14 The court’s “failure to comply with the formal requirements

of the Rule,” however, does not automatically entitle a defendant

to reinstatement of the right to appeal. See id. at 27–28 (citation and

internal quotation marks omitted). Rather, under Manning

, the

reinstatement inquiry focuses more broadly on whether the

defendant’s failure to file an appeal was a voluntary and knowing

choice. See Manning v. State

, 2005 UT 61, ¶¶ 31–32, 122 P.3d 628.

Thus, evidence that the court failed to advise a defendant of his

appeal right following sentencing undermines the presumption

that his failure to appeal was knowing and voluntary, while

evidence that the defendant was actually made aware of his right

to appeal, despite the court’s oversight, can support a conclusionState v. Kabor

20110187

‐ CA 2013 UT App 12 9 that he was not unconstitutionally deprived of the right to appeal.

See, e.g.

, Peguero

, 526 U.S. at 27–28 (explaining that the petitioner

was not entitled to habeas relief even though the court failed to

notify him of his right to appeal because his own testimony showed

that he had actual knowledge of the right prior to the expiration of

the appeal period and the petitioner did not identify any other

resulting prejudice); Johnson v. State

, 2006 UT 21, ¶ 26, 134 P.3d

1133 (remanding for consideration of whether the defendant was

unconstitutionally deprived of his right to appeal where the

defendant was not present at trial or sentencing and “nothing in

the record before [the supreme court] indicate[d] whether Johnson

was otherwise notified of his right to appeal”); Hauck v. State

, 2007

WY 113, ¶ 10, 162 P.3d 512 (concluding, in the context of determin

‐ ing whether the defendant’s petition for postconviction relief was

procedurally barred for failing to raise the claims on direct appeal,

that the defendant had been deprived of his constitutional right to

appeal because the court failed to advise him of that right and the

“record does not otherwise reflect that [the defendant] knew of his

right to appeal” his conviction).

¶15 In this case, the evidence the district court found credible

indicated that Kabor’s attorney, Bradley Rich, discussed an appeal

with him on several occasions and, in the course of those discus

‐

sions, made him aware of both his right to appeal and the time

frame in which that right must be exercised. In addition, Rich

advised Kabor that he would need to make a decision by the time

of sentencing so that Rich could request the appointment of a

public defender, if necessary, to pursue the appeal. During these

discussions, Kabor either expressed no interest in filing an appeal

or indicated his intent not to appeal, and he never asked Rich to

request that the court appoint appellate counsel to represent him.

Based on this testimony, the district court determined that Kabor

failed to overcome the Manning presumption that his failure to file

was knowing and voluntary both because he had actual knowledge

of the right to appeal and the time period for doing so and because

he indicated no interest in an appeal in the course of pertinent

discussions with his attorney, affirmatively stating that he did notState v. Kabor

20110187

‐ CA 2013 UT App 12 10 want to appeal during counsel’s last discussion with him just

before sentencing. See generally Peguero

, 526 U.S. at 28 (explaining

that where “petitioner had full knowledge of his right to appeal,

. . . the District Court’s

. . . fail[ure] to inform him of that right did not

prejudice him”). The district court further concluded that none of

the circumstances identified in Manning as indications of an

involuntary waiver were present.

¶16 Kabor argues, however, that the court’s failure to advise him

of his appeal right fell within the third exception—“the court or the

defendant’s attorney failed to properly advise defendant of the

right to appeal,” Manning

, 2005 UT 61, ¶ 31. In support of his

argument, Kabor relies on a single sentence in Manning

, in which

the supreme court states, “[T]he court’s failure to comply with rule

22(c) may well qualify for the third exception where a defendant

claimed that his right to appeal his sentence has been denied.” Id.

¶ 41. We recognize that the supreme court’s statement, in isolation,

leaves open the possibility that the district court’s failure alone

might, in some circumstances, be enough to demonstrate unconsti

‐

tutional deprivation. The supreme court, however, couched the

exception itself in the alternative, i.e., the failure of “the court or the

defendant’s attorney

. . . to properly advise defendant of the right

to appeal.” Id. ¶ 31 (emphasis added). The word “or” strongly

suggests that if either the court or defense counsel provided the

advice regarding appeal, then there is no constitutional depriva

‐

tion. Cf. Calhoun v. State Farm Mut. Auto Ins. Co.

, 2004 UT 56, ¶ 20,

96 P.3d 916 (“The legislature’s separation of these two [statutory]

sections by the disjunctive ‘or’ as opposed to the conjunctive ‘and’

clearly mandates that a policy need only provide owner’s coverage

or operator’s coverage—not both.”).

¶17 This interpretation comports with the supreme court’s own

explanation of the application of the third exception: “The third

exception applies where the court and the defendant’s attorney

have failed to provide the defendant with notice of the right to

appeal.” Manning

, 2005 UT 61, ¶ 40 (emphasis added). In the

context of this explanation of the scope of the exception, theState v. Kabor

20110187

‐ CA 2013 UT App 12 11 supreme court’s statement that “the [sentencing] court’s failure to

comply with rule 22(c) may well qualify for the third exception,”

id. ¶ 41, is not inconsistent with its instruction that the third

exception applies only when “the court and the defendant’s

attorney have failed to provide” the defendant with notice of the

right to appeal, id. ¶ 40 (emphasis added). For, under Manning

, the

crux of the reinstatement inquiry is whether the defendant was

unconstitutionally deprived of his right to appeal. If the court fails

to notify the defendant and it appears that he was not otherwise

informed, then “the court’s failure to comply with rule 22(c) may

well qualify for the third exception.” Id. ¶ 41. But when it is

apparent that the defendant was actually aware of his right to

appeal because he was advised by his counsel—as was the case

here—the third exception does not apply. Moreover, the district

court found that Kabor told Rich that he did not want to appeal, a

circumstance that strongly supports the conclusion that the

sentencing court’s failure to notify Kabor that he could appeal did

not deprive him of a constitutional right.

II. There Is No Requirement that Counsel’s Advice Be On the

Record.

¶18 Kabor next asserts that there is “no record evidence” that

Rich informed him of the right to appeal. According to Kabor, Rich

had to inform him on the record of the right to appeal, and in the

absence of such an on

‐ the

‐ record communication, he urges us to

assume that no notification occurred because appellate courts

generally indulge a presumption against waiver of a constitutional

right. (Citing Manning

, 2005 UT 61, ¶ 35.) Kabor cites City of Seattle

v. Braggs

, 705 P.2d 303 (Wash. Ct. App. 1985), in support of his

contention. There, the Washington Court of Appeals stated that

“compelling or extraordinary circumstances” would justify

extending the time to appeal and that where the record does not

“clearly indicate that the trial court advised the defendant

. . . of the

right to appeal a conviction as well as the time and method for

commencing an appeal,” such compelling circumstances will be

found. Id. at 305–06. Braggs

, however, does not address the issueState v. Kabor

20110187

‐ CA 2013 UT App 12 12 asserted by Kabor—that substitute notice must be on the re

‐

cord—but instead adopts the position rejected by our supreme

court in Manning —that the court’s failure to advise a defendant of

his right to appeal, without more, automatically entitles him to

reinstatement of the appeal period.

¶19 Kabor does not provide any other legal authority for his

contention that the notice by counsel must be on the record. Rather,

his arguments identify policy reasons as a basis for adopting such

a rule. For example, Kabor cites the concern noted in Peguero v.

United States

, 526 U.S. 23 (1999), that counsel may not actually have

informed a defendant of the right to appeal, even though counsel

believes that he or she did so because that was the usual practice.

See id. at 26–27. He also identifies a concern that counsel’s explana

‐

tion of the appeal right and process may not be as thorough as the

court’s advice and that the contents of such explanation are not

independently verifiable. But the Utah Supreme Court did not

identify in Manning any “on the record” requirement for determin

‐ ing whether a defendant has been unconstitutionally deprived of

his appeal right, 2005 UT 61, ¶¶ 31, 35–41, nor did it include any

such requirement in rule 4(f), Utah R. App. P. 4(f). To the contrary,

Manning expressly refers to an evidentiary hearing as one means

for determining whether a defendant has been deprived of his or

her right to appeal. 2005, UT 61, ¶ 31. We therefore reject Kabor’s

contention that Rich’s advice could not appropriately inform him

of his right to appeal simply because it was off the record.

III. Counsel’s Explanations Were Not Unduly Confusing or

Unclear.

¶20 Kabor also claims, apparently in the alternative, that Rich’s

explanations of the right to appeal were too confusing and unclear

to comply with the requirements of due process. In particular,

Kabor argues that Rich’s piecemeal explanation of the appeal

process, when considered in the context of his relative youth and

the emotional burden of facing the possibility of spending the rest

of his life in prison, supports an inference that he could not beState v. Kabor

20110187

‐ CA 2013 UT App 12 13 expected to fully comprehend Rich’s explanation of the right to

appeal. But the rule itself requires that the district court “advise the

defendant of defendant’s right to appeal and the time within which

any appeal shall be filed” right after imposition of sentence, Utah

R. Crim. P. 22(c), and Kabor has not explained how the emotional

burden on a defendant would be materially different in those

circumstances than in the context of a similar explanation by

counsel just before sentencing or in the weeks leading up to

sentencing. Indeed, the potential for emotional distraction might

well be greater following announcement of sentence. Further, the

rule itself makes no distinction based on relative age. As the State

points out, Rich’s explanations conveyed the realities of serving a

prison sentence and impressed upon Kabor the urgency to make a

decision about an appeal by the time of sentencing. He did this by

explaining the appeal process early and often and repeatedly

gauging Kabor’s receptiveness to pursuing an appeal. Accordingly,

we also reject Kabor’s contention that Rich’s explanations were too

unclear or complicated to constitute adequate notice.

CONCLUSION

¶21 Utah law presumes that a defendant who fails to file a

timely appeal has knowingly and voluntarily waived his right to

appeal. The district court found that Kabor’s attorney adequately

advised him of his right to appeal even though the court failed to

do so. Kabor has not convinced us that counsel’s advice was

inadequate because the notification was not on the record or

because it was unclear or confusing. In addition, the court found

that Kabor had affirmatively stated to his attorney that he did not

intend to appeal his convictions. Kabor has therefore failed to carry

his burden to overcome the presumption that his failure to timely

file a notice of appeal was the result of a knowing and voluntary

waiver of his right to appeal. In this regard, the district court did

not err in concluding that Kabor was not unconstitutionally

deprived of his right to appeal when he was notified of that right

by his trial counsel but not by the district court. We thereforeState v. Kabor

20110187

‐ CA 2013 UT App 12 14 uphold the denial of Kabor’s motion to reinstate the time for

appeal.

¶22 Affirmed.

____________________