2022 UT App 40

THE UTAH COURT OF APPEALS

OLEG SOCOLOV,

Appellant,

v.

STATE OF UTAH,

Appellee.

Per Curiam Opinion

No. 20210724-CA

Filed March 31, 2022

Fifth District Court, Cedar City Department

The Honorable Matthew L. Bell

No. 210500028

Oleg Socolov, Appellant Pro Se

Before JUDGES MICHELE M. CHRISTIANSEN FORSTER, DAVID N.

MORTENSEN, and RYAN M. HARRIS.

PER CURIAM:

¶1 Oleg Socolov appeals the dismissal of his petition filed 

under the Post-Conviction Remedies Act (PCRA). We affirm. 

¶2 We review an appeal from an order summarily 

dismissing or denying post-conviction relief for correctness 

without deference to the lower court’s conclusions of law. See 

Bevan v. State, 2021 UT App 107, ¶ 7, 499 P.3d 191. 

BACKGROUND

¶3 Socolov was convicted after a bench trial of misdemeanor 

offenses of assault (domestic violence); domestic violence in 

front of a child; threat of violence; disorderly conduct; and 

intoxication. The district court entered the judgment and 
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sentence on February 27, 2020. Shortly after sentencing, Socolov 

was removed to a federal facility in Nevada pending deportation 

proceedings. After his conviction, Socolov filed pro se motions 

that sought reconsideration of a protective order, but he did not 

file a timely direct appeal.

¶4 Socolov filed a PCRA petition and two amended 

petitions. He first claimed that his trial counsel rendered 

ineffective assistance by failing to appeal his convictions and to 

properly advise him of the right to appeal. His remaining 

claims evolved over the two amended petitions to encompass 

claims of error by the district court and additional 

ineffectiveness claims asserting that trial counsel failed to 

present relevant evidence, to impeach the testimony of 

the victim, to assert that Socolov acted in self-defense, and 

to pursue a claim that Socolov had diminished capacity 

because he was a battered spouse. Socolov claimed that he 

was entrapped by the victim, who fabricated claims of 

domestic violence to place his immigration status in jeopardy.

He also raised the “possibility” of his factual innocence of 

the crimes. In his first amended petition, he added claims 

of prosecutorial misconduct and claims that he had 

obtained new evidence about the victim’s motivation and 

fabrication of allegations. A second amended petition elaborated 

on his claims. 

¶5 The district court issued an order to show cause 

providing Socolov with notice and an opportunity to 

demonstrate why the claims made in his petition were not 

precluded under the PCRA. See Utah Code § 78B-9-

106(2)(b)(West 2022) (“Any court may raise a procedural bar or 

time bar on its own motion, provided that it gives the parties 

notice and an opportunity to be heard.”) In a written response, 

Socolov argued his claims should not be procedurally barred 

because his failure to file an appeal resulted from ineffective 
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20210724-CA 3 2022 UT App 40

assistance of trial counsel, whom he alleged had failed to 

properly advise him of the right to appeal.1

¶6 The district court dismissed the PCRA petition, ruling 

that the first claim—that Socolov was denied the right to appeal 

because his trial counsel failed to properly inform him of his 

appeal rights—was not within the scope of the PCRA and 

instead must be raised in a motion to reinstate the appeal time 

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

district court concluded that the remaining claims for relief from 

the conviction (characterized by the court as prosecutorial 

misconduct, entrapment, evidentiary issues at trial, and 

counsel’s failure to assert diminished capacity as a defense) were 

procedurally barred because either the claims “may still be 

raised on direct appeal,” see id. § 78B-9-106(1)(a), or the claims 

“could have been but [were] not raised at trial, or on appeal,” see 

id. § 78B-9-106(1)(c). The district court also reasoned that because 

Socolov “has not yet filed a motion under rule 4(f), he has failed 

to fully exhaust his legal remedies before pursuing postconviction relief.” See id. § 78B-9-102(1) (stating that the PCRA 

“establishes the sole remedy for any person who has exhausted 

all other legal remedies, including a direct appeal”). Finally, the 

district court ruled that a claim of factual innocence must be filed 

under the separate provisions beginning at Utah Code section 

78B-9-401, and could not be combined with Socolov’s other 

challenges to his convictions. See id. § 78B-9-104(3) (stating that 

claims under Part 4, Postconviction Determination of Factual 

Innocence, may not be filed as part of a PCRA petition under 

Part 1, but shall be filed separately and in conformity with the 

provisions of Part 4). 

 

1. The State, represented by the Iron County Attorney, was given 

an opportunity to reply to Socolov’s response but did not do so.
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20210724-CA 4 2022 UT App 40

ANALYSIS

¶7 Utah Code section 78B-9-106(1) provides, in relevant part,

that a petitioner is not eligible for relief upon any ground that 

“(a) may still be raised on direct appeal or by a post-trial 

motion” or “(c) could have been but was not raised in the trial 

court, at trial, or on appeal.” Subsection (3)(a) states, 

“Notwithstanding Subsection (1)(c), a petitioner may be eligible 

for relief on a basis that the ground could have been but was not 

raised in the trial court, at trial, or on appeal, if the failure to 

raise that ground was due to ineffective assistance of counsel.” 

Socolov claimed that he did not file a direct appeal because he 

was not properly advised of the right to appeal and that this 

same alleged failure to advise him also constitutes ineffective 

assistance of counsel that prevents preclusion of his claims 

under section 78B-9-106(1)(c) because it was counsel’s deficient 

performance that caused his failure to raise the claims on appeal.

¶8 The remedy for a defendant who is denied the right to 

appeal through no fault of his own is codified in rule 4(f) of the 

Utah Rules of Appellate Procedure, which states,

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. A defendant seeking such reinstatement 

shall file a written motion in the sentencing court 

and serve the prosecuting entity. If the defendant is 

not represented and is indigent, the court shall 

appoint counsel. The prosecutor shall have 30 days 

after service of the motion to file a written 

response. If the prosecutor opposes the motion, the 

trial court shall set a hearing at which the parties 

may present evidence. If the trial court finds by a 

preponderance of the evidence that the defendant 

has demonstrated that the defendant was deprived 
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of the right to appeal, it shall enter an order 

reinstating the time for appeal. The defendant's 

notice of appeal must be filed with the clerk of the 

trial court within 30 days after the date of entry of 

the order.

¶9 Socolov asserts that the one-year limitation on a motion to 

reinstate the appeal time in a civil case under the analogous rule 

4(g) would also apply to a criminal case. This is not supported 

by the plain language of rule 4(f), which currently omits any 

time limitation.2 See Ralphs v. McClellan, 2014 UT 36, ¶ 24, 337 

P.3d 230 (noting that rule 4(f) does not include “any time 

limitation on a motion to reinstate an appeal.”). “In reserving the 

right of a defendant to move to reinstate an appeal that is lost by 

no fault of the defendant, rule 4(f) reserved a right of continuing 

jurisdiction of the court in which a conviction is entered and a 

sentence is rendered.” Id.

¶10 “The point of [rule] 4(f) . . . is to provide criminal 

defendants who have been deprived of an appeal through no 

fault of their own with an avenue for relief.” Brown v. State, 2021 

UT 11, ¶ 16, 489 P.3d 152. Rule 4(f) codified the procedure for 

reinstatement of an appeal and supplanted the remedy for 

reinstatement of the appeal time previously provided by 

Manning v. State, 2005 UT 61, 122 P.3d 628. See id. ¶ 13. However, 

the factors from Manning continue to “inform the discussion of 

what rule 4(f) means by deprived of the right to appeal.” Id. ¶ 16. 

Manning “explained that criminal defendants were entitled to 

have their appeal rights reinstated where they demonstrate that 

they had lost their appeal rights because (1) counsel failed to file 

 

2. A proposed amendment to rule 4(f) of the Utah Rules of 

Appellate Procedure is being considered and, if adopted, would 

implement a one-year time limitation for a motion seeking to 

reinstate the time for appeal in a criminal case. 
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20210724-CA 6 2022 UT App 40

an appeal after agreeing to do so; (2) despite diligently 

attempting to file a timely appeal, the defendant was unable to 

do so through no fault of their own; or (3) the court or the 

defendant’s counsel failed to properly advise them of the right to 

appeal.” Id. (cleaned up); see also Ralphs, 2014 UT 36, ¶ 30 

(differentiating the remedy of reinstatement of appeal time 

under rule 4(f) from the relief that would be available under the 

PCRA, which has no application to the right to appeal). 

¶11 Socolov claimed in his PCRA petition that he was not 

properly advised by trial counsel of his right to appeal. 

However, Socolov made the same factual claims that would be 

considered in rule 4(f) proceedings as support for an assertion 

that the remaining claims in the PCRA petition are not subject to 

preclusion under section 78B-9-106(1)(c), because the alleged 

failure to advise him of his appeal rights constituted ineffective 

assistance of counsel that resulted in failure to raise the claims 

on direct appeal. We agree with the district court that Socolov’s 

remedy for the alleged failure to advise him of his appeal rights 

is a motion under rule 4(f). If Socolov obtains reinstatement of 

the appeal time, his remaining claims can be asserted in a direct 

appeal. If the claims raised in the PCRA petition may still be 

raised on direct appeal, Socolov is not eligible for postconviction relief on those claims under the preclusion provision 

of section 78B-9-106(1)(a). If Socolov cannot demonstrate that he 

is entitled to reinstatement of the appeal time, the claims raised 

in his PCRA petition are properly precluded under section 78B9-106(1)(c) as claims that could have been but were not raised in 

the trial court or on appeal. 

¶12 Alternatively, the district court ruled that Socolov was not 

entitled to relief under the PCRA because he did not exhaust his 

available legal remedy of filing a rule 4(f) motion seeking to 

reinstate the time for direct appeal. Utah Code section 78B-9-

102(1)(a) states that “[t]his chapter establishes the sole remedy 

for any person who challenges a conviction or sentence for a 
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criminal offense and who has exhausted all other legal remedies, 

including a direct appeal.” See also Lucero v. Kennard, 2005 UT 79, 

¶ 36, 125 P.3d 917 (“To be eligible for post-conviction relief, 

defendants have consistently been required to appeal error 

through regular and prescribed proceedings in order to prevent 

extraordinary relief from being used as a substitute for normal 

appellate procedures.” (cleaned up)). The same alleged facts that 

Socolov claimed should allow him to avoid preclusion of his 

claims for failure to raise them on direct appeal—that his trial 

counsel failed to properly advise him of the right to appeal—

would be presented to the sentencing court in an appropriate 

rule 4(f) motion served on the prosecutor. If the motion is 

opposed, the alleged facts will be evaluated by the sentencing 

court after an evidentiary hearing to determine whether Socolov 

has demonstrated by a preponderance of the evidence that he 

was deprived of the right to appeal. See Utah R. App. P. 4(f); see 

also State v. Collins, 2014 UT 61, ¶ 36, 342 P.3d 789 (concluding 

that harmless error analysis applies to claims seeking 

reinstatement of appeal time). Accordingly, the district court 

correctly determined that Socolov must exhaust the remedy 

available to him under rule 4(f) for reinstatement of the time for 

direct appeal before seeking relief under the PCRA.

¶13 We therefore affirm the dismissal of Socolov’s petition for 

post-conviction relief.