2023 UT App 113

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

KEVIN RAMEY BLANKE,

Appellant.

Opinion

No. 20220104-CA

Filed September 28, 2023

Third District Court, Salt Lake Department

The Honorable Amy J. Oliver

No. 021908449

Herschel Bullen, Attorney for Appellant

Sean D. Reyes and Lindsey L. Wheeler,

Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN

FORSTER concurred.

MORTENSEN, Judge:

¶1 In 2002, Kevin Ramey Blanke pled guilty to attempted 

child kidnapping. He reaffirmed this plea in February 2003 and 

was sentenced to an indefinite term of three years to life in May 

2003. In 2016, Blanke moved to correct his sentence, claiming the 

sentence was illegal. The motion was denied, and that denial was 

affirmed on appeal. Then in 2021, Blanke moved to have his time 

to appeal as a matter of right reinstated, claiming that he was not 

informed that he could appeal his sentence. The district court 

denied this motion, and Blanke now appeals. We affirm.
State v. Blanke

20220104-CA 2 2023 UT App 113

BACKGROUND

¶2 In June 2002, Blanke came across a child, Elisabeth,0F

1 and 

her sister playing near a park. See Blanke v. Utah Board of Pardons

& Parole, 2020 UT 39, ¶ 3, 467 P.3d 850. Blanke offered to pay them 

if they would go with him. Id. The sister declined, but Elisabeth 

left with Blanke. Id. Blanke then took Elisabeth to get ice cream, 

but when she got scared and asked to go home, Blanke returned 

her to the park. Id. Elisabeth, who had been gone about an hour 

and a half, was taken to the hospital, but an examination revealed 

no physical appearance of abuse. Id. Nor did Elisabeth claim that 

she had been harmed. Id. Blanke was charged with attempted 

child kidnapping. Id.

¶3 In December 2002, Blanke, represented by counsel

(Counsel 1), entered into a plea agreement with the State. He 

acknowledged that his guilty plea would waive his “right to 

appeal the conviction and sentence.” The district court engaged in 

a lengthy colloquy with Blanke, including giving Blanke and his 

attorney extra time to discuss the plea and the effect of waiving 

his appellate rights. The plea agreement also indicated that the 

State would “allow” Blanke to plead guilty to a second-degree 

felony in another kidnapping case. The reduction in that case was 

identified as a “strong consideration” in the plea agreement and 

was characterized as “part of the total package.” After discussing 

the matter with Counsel 1, Blanke agreed to the offer and pled 

guilty to attempted child kidnapping, a first-degree felony.

¶4 Within a few weeks, Blanke filed a pro se motion to 

withdraw his guilty plea. First, he alleged that he was depressed, 

suffering from panic attacks, and unmedicated, asserting that it 

was apparent in the courtroom that he “was having problems”

arising from these conditions. Second, he claimed that Counsel 1

1. We adopt the pseudonym used in previous proceedings. 
State v. Blanke

20220104-CA 3 2023 UT App 113

had pressured him into agreeing to the plea and had not made an 

effort to develop a robust defense.

¶5 The court appointed new counsel (Counsel 2), and at a 

status hearing in February 2003, it appears that Blanke retracted 

his motion to withdraw his plea.1F

2 The minute entry for the 

hearing indicates that Blanke was present at the hearing (along 

with Counsel 2), that he pled guilty to attempted child 

kidnapping, and that he was sentenced in May 2003 to an 

indefinite term of three years to life.

¶6 In March 2016, Blanke filed a pro se motion to correct an 

illegal sentence under rule 22(e) of the Utah Rules of Criminal 

Procedure. Blanke argued that the court erred by sentencing him 

“when an unresolved motion to withdraw [his] plea was still 

before the court.” See Utah Code § 77-13-6(2)(b) (“A request to 

withdraw a plea of guilty . . . shall be made by motion before 

sentence is announced. Sentence may not be announced unless 

2. Blanke has neither provided a transcript of this hearing nor 

attempted to reconstruct it. If Blanke had wanted to include an 

accounting of the status conference as part of the record on 

appeal, he had a means to do so. See Utah R. App. P. 11(e) (“If no 

report of the evidence or proceedings at a hearing or trial was 

made, or if a transcript is unavailable, . . . the appellant may 

prepare a statement of the evidence or proceedings from the best 

available means, including recollection. The statement must be 

served on the appellee, who may serve objections or propose 

amendments within 14 days after service. The statement and any 

objections or proposed amendments must be submitted to the 

trial court for resolution, and the trial court clerk will conform the 

record to the trial court’s resolution.”). Except for expanding the 

time for the appellee to object by four days, the current rule is 

substantially the same as the rule in effect at the time Blanke 

submitted his briefing on appeal. Compare id. R. 11(e) (2023), with

id. R. 11(g) (2020). 
State v. Blanke

20220104-CA 4 2023 UT App 113

the motion is denied.”). The district court denied the motion, 

explaining that after Blanke filed his motion to withdraw his 

guilty plea, he again pled guilty at the February 2003 status 

conference prior to sentencing in May 2003, rendering his motion 

to withdraw his plea moot. The court clarified that Blanke’s 

motion to withdraw addressed only the guilty plea he entered in 

December 2002, not the plea he entered in February 2003. 

“Accordingly,” the court summarized, “no Motion to Withdraw 

Guilty Plea remained pending with regard to” Blanke’s February 

2003 plea “and the Court properly sentenced” Blanke in May 

2003.

¶7 Blanke appealed, and this court subsequently affirmed the 

district court’s order, stating, 

During the course of the [February 2003] hearing, 

Blanke, through counsel, reaffirmed his guilty plea, 

with the district court agreeing to take on an 

additional case in which Blanke was involved. In so 

doing, Blanke implicitly withdrew his motion to 

withdraw his plea. Thus, this motion was no longer 

pending before the district court. . . . Blanke never 

again raised his request to withdraw his plea 

despite not being sentenced until three months after 

he reaffirmed his plea. Accordingly, the district 

court did not err in denying the motion to correct an

illegal sentence because no motion to withdraw his 

plea was pending at the time he was sentenced.

Blanke did not seek certiorari review of this court’s order.

¶8 The current proceedings commenced in January 2021 with 

Blanke’s pro se motion to reinstate time to file a direct appeal 

pursuant to rule 4(f) of the Utah Rules of Appellate Procedure. 

Blanke asserted that neither the sentencing court nor either of his 

attorneys informed him of his right to appeal and that, instead,
State v. Blanke

20220104-CA 5 2023 UT App 113

each told Blanke only that he would forfeit his right to direct 

appeal by entering his guilty plea. The court appointed Blanke 

new counsel (Counsel 3), who subsequently filed an amended 

reinstatement motion, again asserting that Blanke had not been 

advised of his right to appeal.

¶9 At the evidentiary hearing in November 2021, the district 

court requested “clarification” as to whether Blanke was “asking 

for the direct appeal right to be reinstated for his conviction or his 

sentence or both.” Counsel 3 said it was both, clarifying that 

Counsel 2 retracted Blanke’s motion to withdraw his guilty plea 

without obtaining Blanke’s permission and that the sentencing

court, Counsel 1, and Counsel 2 failed to tell him of his right to 

appeal his sentence.

¶10 On direct examination, Blanke testified that he “never went 

to” the February 2003 status hearing where Counsel 2 “reaffirmed 

[his] plea.”2F

3 He further testified that at sentencing, where he was 

present, neither his counsel3F

4 nor the judge told him that he “had 

the right to appeal.” But on cross-examination, Blanke admitted 

that Counsel 1, Counsel 2, and the sentencing court informed him 

that by entering a guilty plea he waived his right to appeal.

¶11 The district court denied Blanke’s rule 4(f) motion. The 

court first found that the evidence demonstrated that Blanke had 

“waived his right to appeal his conviction,” explaining that 

Blanke acknowledged waiving his right to appeal in his signed 

plea statement, that the judge confirmed his waiver at the change 

of plea hearing, and that Blanke had recently testified that 

Counsel 1 and Counsel 2 “told him that if he pled guilty he waived 

3. As noted above, the minute entry indicates that Blanke was 

present at the status hearing.

4. It is unclear in the transcript whether Blanke was referring to 

Counsel 1 or Counsel 2.
State v. Blanke

20220104-CA 6 2023 UT App 113

his right to appeal.” Moreover, the court noted that the Utah 

Court of Appeals had already determined that Blanke had 

implicitly withdrawn his original motion to withdraw when he 

pled guilty for a second time at the February 2003 status hearing 

and that the February 2003 plea was never withdrawn prior to 

sentencing.

¶12 Regarding the right to appeal his sentence, the district 

court found that Blanke “was informed of his right to appeal his 

sentence,” explaining that Blanke’s testimony that he was never 

informed of this right was “not credible” for three reasons. First, 

even though Blanke “admitted under oath at the evidentiary 

hearing that he waived his right to direct appeal of his 

conviction,” he was “still assert[ing] that he was deprived of his 

right to appeal his conviction.” Second, Blanke’s testimony that 

neither the court nor his attorneys had informed him of his right 

to appeal was contradicted by the statement in his rule 4(f) 

memorandum that he “truly believed that he had given up his right 

to a direct appeal.” Third, the fact that Blanke “did not file any 

appeal until 13 years after his sentencing (and then only did so on 

a collateral basis) confirm[ed] that he understood he had given up 

his right to a direct appeal.”

¶13 Significantly, the court also concluded that Blanke was not 

prejudiced by the alleged failure to inform him of his right to 

appeal his sentence:

Blanke failed to allege or present any evidence to 

establish that he would have appealed his sentence 

had he been informed of his right to do so. He 

likewise failed to allege or present any evidence 

demonstrating that the alleged failure of the court 

and counsel to inform him of his right to appeal was 

the “but for” reason that he failed to file a direct 

appeal of his sentence. In the absence of any such 

evidence, the Court finds that Mr. Blanke has failed 
State v. Blanke

20220104-CA 7 2023 UT App 113

to meet his burden of demonstrating that he 

suffered any prejudice.

¶14 Blanke appeals.

ISSUE AND STANDARD OF REVIEW

¶15 The sole issue on appeal is whether the district court erred 

when it denied Blanke’s motion to file a direct appeal from his 

2003 sentence for attempted child kidnapping.4F

5 We review for 

correctness the court’s legal conclusion that Blanke was not 

denied his right to appeal, but we give deference to the court’s 

factual findings, reviewing them for clear error. State v. Kabor, 

2013 UT App 12, ¶ 8, 295 P. 3d 193, cert. denied, 300 P.3d 312 (Utah 

2013). 

ANALYSIS 

¶16 The Utah Rules of Appellate Procedure provide, “Upon a 

showing that a criminal defendant was deprived of the right to 

appeal, the trial court shall reinstate the thirty-day period for 

filing a direct appeal.” Utah R. App. P. 4(f). Our supreme court 

has stated that rule 4(f) requires a defendant to show 

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

have been taken had the defendant been properly informed of the 

right:

Both our reinstatement [of the right to appeal] 

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 

5. Blanke states that he seeks to appeal only his sentence and that 

the district court misunderstood his rule 4(f) motion as seeking 

“to reinstate the right to appeal his conviction.”
State v. Blanke

20220104-CA 8 2023 UT App 113

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 . . . must show that had he been 

properly advised, he would have appealed.

State v. Collins, 2014 UT 61, ¶ 30, 342 P.3d 789.5F

6 In other words, 

“an error affecting the right to appeal is rendered harmless where 

the defendant would not have appealed regardless of the error.” 

Id. ¶ 38; see also Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000) (“If 

the defendant cannot demonstrate that, but for counsel’s deficient 

performance [in failing to file a notice of appeal without consent], 

he would have appealed, counsel’s deficient performance has not 

deprived him of anything, and he is not entitled to relief.”); Garza

v. Idaho, 139 S. Ct. 738, 747 (2019) (“So long as a defendant can show

that counsel’s constitutionally deficient performance deprived 

him of an appeal that he otherwise would have taken, courts are 

to presume prejudice with no further showing from the defendant 

of the merits of his underlying claims.” (emphasis added)

(cleaned up)).

¶17 Recognizing that the district court made a factual finding 

that Blanke had been informed of his right to appeal his sentence, 

for the purpose of our analysis we will nevertheless assume, 

without deciding, that Blanke was never informed of this right. 

6. We acknowledge that the Utah Supreme Court’s articulation 

makes sense in the context of reinstated appeals generally. 

However, we think that in the context of motions to reinstate the 

time to appeal a sentence, a defendant should also be required to 

show a likelihood that a better result would have been obtained if 

the reinstatement had occurred. In this case, we think it highly 

unlikely that even if the appeal time had been reinstated, any 

different sentence would have been rendered.
State v. Blanke

20220104-CA 9 2023 UT App 113

After all, the plea agreement that Blanke signed explicitly stated 

that his guilty plea would waive his “right to appeal the 

conviction and sentence.” (Emphasis added.) As the State concedes 

in its briefing, “Blanke’s plea statement did not properly inform 

him of his appellate rights” because “it stated that Blanke was 

giving up the right to appeal both his guilty plea and his 

sentence.” And we will accept as true—for the limited purpose of 

our analysis—Blanke’s word that he was not otherwise advised 

by the court or his attorneys of his right to appeal his sentence. See 

State v. Brown, 2021 UT 11, ¶ 16, 489 P.3d 152 (stating that under 

rule 4(f), being “deprived of the right to appeal” includes, among 

other scenarios, “the court or the defendant’s counsel fail[ing] to 

properly advise [the defendant] of the right to appeal” (cleaned 

up)). But even if Blanke was never properly informed of his right 

to appeal his sentence, his claim of error still fails for lack of 

prejudice. In other words, Blanke never presented evidence to the 

district court that he would have appealed his sentence even if he 

had been properly informed of the right.

¶18 Instead of providing evidence that he would have 

appealed his sentence, Blanke argues that it “is more than 

implicit”—given his history of filing “post-conviction motions 

and appeals”—that “he would have filed a direct appeal had he 

known that he could.” Blanke further argues that “there is 

nothing” in rule 4(f) that requires a showing of prejudice. He 

asserts—in a somewhat circular fashion—that “[c]ounsel was 

ineffective and prejudiced his rights at a critical stage of the

proceeding wherein prejudice must be presumed.” But that is not 

what our caselaw says. Rather than articulating a presumption of

implied prejudice, our supreme court has adopted a more direct

approach. There can be “no deprivation of the right to appeal” if 

the “error affecting that right [was] harmless.” See Collins, 2014 UT 

61, ¶ 30. And to establish that the error was harmful, a defendant 

“must show that had he been properly advised, he would have 

appealed.” Id. Thus, to prevail on appeal, it is not enough for 

Blanke to say that he was not informed of the right to appeal—or 
State v. Blanke

20220104-CA 10 2023 UT App 113

that he “would obviously have testified” that he would appeal 

“had the question been put forth.” This reasoning descends into 

the realm of pure speculation. That Blanke would have 

pursued an appeal is not obvious in the absence of any evidence. 

Rather, our supreme court has clarified that a defendant in 

Blanke’s position must carry the burden of proof that he would 

have appealed his sentence if properly informed of his right to do 

so. 

¶19 Blanke presented no evidence that he ever contemplated 

appealing his sentence in a timely manner. Had he done so, this 

would be a different matter. If Blanke had asked his attorneys to 

appeal and they failed to follow through—or if Blanke had 

presented, for example, phone calls or letters that reflected his 

intention to timely appeal but that he was dissuaded from doing 

so because he was under the impression that an appeal was not 

an option—then there would have been some evidence that 

Blanke would have appealed. But that is not the case here. Blanke 

presented nothing to suggest that he ever expressed a wish to 

timely appeal his sentence to his attorneys, the court, or anyone 

else.

¶20 And Blanke likely had no intention of appealing his 

sentence for good reason. He pled guilty pursuant to a favorable 

plea agreement, one which allowed him to plead guilty to a 

second-degree felony in a separate, unrelated kidnapping case. 

Indeed, the reduction in that separate—and apparently more 

serious—case was identified as a “strong consideration” in the 

plea agreement reached in the case involving Elisabeth, being 

characterized by the court as “part of the total package.” Because 

the plea agreement offered Blanke the chance to bring a resolution 

to both cases, there would have been no reason for Blanke to 

consider timely appealing his sentence for attempting to kidnap 

Elisabeth. Doing so would have run counter to his interests at the 

time. 
State v. Blanke

20220104-CA 11 2023 UT App 113

¶21 Blanke has not met his burden of persuasion on appeal to 

show that he would have appealed his sentence had he been 

properly informed of his right to do so. Accordingly, we see no 

error in the district court’s denial of his rule 4(f) motion. 

CONCLUSION

¶22 Any error in depriving Blanke the right to appeal his 

sentence must be considered harmless in the absence of evidence 

that Blanke would have otherwise pursued an appeal. We 

therefore conclude that the district court did not err in denying 

Blanke’s motion to reinstate his time to file a direct appeal. 

¶23 Affirmed.