Rules of Appellate Procedure – Comment Period Closed April 24, 2022

This proposal is flawed for several reasons and should be rejected. The rules should be written and interpreted in light of the unequivocal constitutional right to appeal in all cases. This alteration to the rule seems instead to be an attempt to reduce that right, a position the court should not endorse.
First, putting an arbitrary one year limitation on these motions will eliminate otherwise completely legitimate and deserving claims. As a rule, almost all criminal defendants who have been deprived of their right to appeal have been failed by the court, or their lawyer, or both. As a result most of them will be proceeding without the aid of an attorney, and many of them will be incarcerated. This is an almost impossible circumstance in which to investigate, prepare, and litigate a claim in district court. If a defendant in that circumstance has legitimately been deprived of the right to appeal and learns of the “evidentiary facts forming the basis of the claim” but, because he is unrepresented, does not know about Rule 4(f) or how it functions, or this proposed timing requirement, his claim will be denied simply because he files in 366 days later, rather then 365. Though statutes of limitations can be useful for the interests of efficiency and finality, where we know so many of the defendants that actually need the protections afforded by Rule 4(f) will be unrepresented and incarcerated during that critical time, the interests of efficiency and finality should not outweigh the constitutional right to appeal.
Second, the proposal’s use of the 3 three examples from Manning (see (5)) as the only circumstances in which reinstatement can be established would unnecessarily limit the meaning of deprivation. These three instances do not encompass all the ways in which a person can be deprived of the constitutional right to appeal through no fault of their own. There are many ways, including other means of ineffective assistance, which as a practical matter will deprive the defendant of the right to appeal even if the defendant never asks for an appeal to be filed or if counsel advises his client of the right to appeal. For example, if counsel advises of the right to appeal, but provides inaccurate or misleading information about what the right entails, about what issues can be raised, etc., the lack of a request for notice to be filed should not eliminate the possibility of reinstatement.
Judges need the discretion to consider new scenarios and decide whether the constitutional right to appeal has been violated. Eliminating all other ways of establishing deprivation needlessly minimizes the meaning of the constitution by rule. The current language allows the court to consider whether the individual circumstances warrant reinstatement and how and why deprivation occurred.
This proposal should be rejected.

My practice consists primarily of criminal defense. In the last several years, much of my focus has been on wrongful convictions and I have been working a lot in the appellate courts and the post-conviction processes. I believe that over the last several years, it has become more evident that there is a systemic problem in the criminal justice system as demonstrated by the number of exonerations and faulty convictions that have surfaced across the nation. The emergence of conviction integrity units and innocence projects corroborates this belief.

I make no bones stating that our post-conviction system is broken. It is an empty promise that
tells convicted individuals (most of whom are incarcerated) that there is some opportunity for relief to redress constitutional violations in their trials and sentences. (Surely, there is some procedure or process that can fix this). This promise is illusory for several reasons.

First, most convicted persons are not told what they must do to obtain post-conviction relief. Primarily because most defense attorneys in the trial court don’t know. The post-conviction process is a daunting minefield of procedural rules and bars that most attorneys (and even judges) don’t want to wade into.

Second, these convicted persons must navigate this process pro se, a process that is, again, a daunting minefield of procedural rules and bars.

And third, there is a general strict time limit of one year to file for post-conviction relief. Usually, this is a time period where the convicted person is likely incarcerated; where they have no further access to legal counsel unless they can afford to hire a private attorney; where the prison doesn’t provide adequate legal resources or counsel; where there is no general notice given to inmates about filing deadlines and avenues for relief regarding their cases; and in the past two-plus years, where there has been even less access to the outside world and legal access due to Covid issues and lengthy unexpected lock downs. In fact, once sent to prison, the advice given to convicted persons is to not further challenge their conviction, but accept responsibility and demonstrate rehabilitation in order to get a more speedy hearing by the Board.

So for these many reasons, many if not the vast majority of convicted persons miss this one year deadline to seek post-conviction relief. As a consequence, all of their legal issues are barred, even if meritorious, and even if due to the deprivation of fundamental constitutional rights and the guarantee to effective assistance of counsel.

The proposal to now set a one year time frame for a convicted person to attempt to reinstate their guaranteed right to an appeal — a right which also guarantees counsel and defense resources paid by the state if indigent– poses every one of the same pitfalls just addressed in the broken post-conviction process. Who is to say that the person “should have known with reasonable diligence” about their right to appeal?. The Attorney General’s Office? With all due respect, this is just one more way to close the book on the legal claims of convicted persons who may not have obtained effective counsel; to mentally challenged and perhaps incompetent individuals; and to those who do not have access to legal resources or advice as to their rights and remedies.

The buzz-phrase “access to justice” has been regularly bandied about the past few years. But the effect of this proposal is directly contrary to that principle. This proposal is a prime example of not only failing to provide “access to justice”, but yet another “justification” to slam the courthouse doors shut to potentially meritorious and fundamental constitutional claims deserving of both review and a remedy.

I urge the committee to please reject this proposal. Persons convicted of a crime need some avenue to challenge their convictions unconstrained by arbitrary time frames – they truly need some “access to justice.”

Proposed rule 4(f)(5)(C) should say “the court and the defendant’s counsel failed to properly advise the defendant of the right to appeal,” rather than “the court or the defendant’s counsel.” If one of those actors properly advises the defendant but the other does not, the defendant has not been deprived of his right to appeal through no fault of his own—he or she would be aware of the right and could be presumed to have waived it by not appealing. Alternatively, language to this effect could be added to the end of 4(f)(5)(C): “ … and the defendant was not otherwise aware of the right to appeal.”

Also, the “through no fault of his own” requirement should be repeated in 4(f)(6). It may be clear enough since that requirement is mentioned in the intro to 4(f)(5), but it might be worth repeating it in rule 4(f)(6): “If the trial court finds by a preponderance of evidence that the defendant has been deprived of the right to appeal through no fault of his own, … .”

The Utah Association of Criminal Defense Lawyers opposes the proposed changes to Utah Rules of Appellate Procedure 4 and 20. These rule changes run the risk of keeping our appellate courts from hearing unique but deserving cases that have no other means to be heard. Closing off access to the appellate courts through procedural mechanisms does not advance the fundamental judicial functions of guaranteeing the right to an appeal, and exercising the constitutional authority only vested in the courts for this purpose. These changes instead hamper the ability of people to seek meaningful review. Further, the people most likely to be harmed by these changes are the most vulnerable individuals in society. For these reasons, explained in more detail below, the proposed changes should be rejected.

Beginning with the amendments to Rule 004, Doug Thompson’s assessment is correct. The proposed changes limit the possibility of appeals in the most deserving of cases. These cases are often brought by prisoners who, due to their incarceration, face enormous obstacles in getting their appellate rights reinstated.

Prison rules prohibit keeping a law library, leaving inmates among the least likely individuals to be aware of procedural barriers to exercising rights, such as the right of appeal. Because of the lack of legal resources in prisons, inmates typically learn about their rights by word of mouth from other inmates. What they typically do not learn are procedural bars, including time limits for filing. Indigent inmates also have severely limited (if any) access to counsel. Thus, pro se prisoners are surrounded by misinformation and no meaningful ability to check what they are told against the rules and case law. The critical information about filing deadlines is least likely to reach the mentally ill, disabled, or individuals for whom English is not their first language. That means that the most disadvantaged individuals are most likely to be prejudiced by the rule change. The constraints of this rule allow courts to deny reinstatement motions more easily at the expense of limiting deserving appeals.

Additionally, the proposed changes to subsection 5 of Rule 4 is also unnecessarily constrictive. As Doug Thompson noted, the proposal takes a non-exhaustive list of three reasons to reinstate an appeal in _Manning_ and caps it at those three. There is real harm in this. District courts should continue to have the discretion to consider unusual circumstances resulting in a denial of a defendant’s right to an appeal by a failure to file timely notice of appeal. The right to an appeal is constitutional and fundamental, and our rules of procedure should seek to protect this right, not substantively curtail it. What’s more, our appellate system is designed to correct errors; our judicial system interferes with its own mission when it limits the avenues to hear the errors that need correcting.

As an association of lawyers committed to improving the outcomes for criminal defendants through education and support of their attorneys, we are acutely aware of the consequences when the legal system gets it wrong. Rule 4 is one of a series of mechanisms that correct for legal error in trial courts but more than that, it is necessary to guarantee the constitutional right to an appeal. If a defendant is unaware or unable to file for a timely appeal, whether through trial court, counsel error, or some unusual circumstance outside of the situations discussed in _Manning_, the constitutional right to an appeal includes a means for these individuals to seek a jurisdictional reprieve and have their cases reviewed on direct appeal. The proposed changes to Rule 4 unconstitutionally limit the right to an appeal.

Turning to the proposal for Rule 20, UACDL emphatically opposes this change as well. There are three issues:

1) The committee misunderstands the constitutional basis for the Supreme Court’s writ power. The elimination of Rule 20 limits a person’s power to petition a wrongful detention by forcing them to start their claim at the trial court. But the Supreme Court has original jurisdiction over writs as a matter of constitutional authority. _See_ Utah Const. Art. VII, § 3. Even if Rule 20 were to be eliminated, that original jurisdiction would continue to exist. All this rule change would do is eliminate the mechanism by which that writ may be exercised. _See Patterson v. State_, 2021 UT 52, ¶ 77. Eliminating procedural guidance just makes it less clear to Utah courts how such writs should be handled. It would not eliminate the Supreme Court’s original jurisdiction; it would merely eliminate any direction on original writs.

2) By eliminating Rule 20, the Supreme Court would be abdicating its responsibility to exercise and explain its writ power. While Rule 65C cites the Post-Conviction Relief Act as the sole avenue for a defendant to challenge their conviction in many circumstances, we know this legislative enactment cannot obviate the Supreme Court’s constitutional writ authority. Furthermore, habeas writs are based on principles of equity. Equity is, by its nature, designed to be flexible so that injustices unaddressed by law can nevertheless be addressed by courts. By eliminating Rule 20 the Supreme Court would cede its constitutional authority to the legislature, something the Court simply cannot do. The Committee, in its notes accompanying the amendment, suggests that _Patterson_ has ended the discussion on this topic. UACDL does not share that interpretation. _Patterson_ is still under ongoing litigation. It would be premature to draw conclusions from _Patterson_ as-it-is to eliminate Rule 20 when there are still important issues for the Court to consider.

3) The Advisory Committee’s notes also indicate that they cannot think of a single circumstance in which a petitioner would raise a habeas petition under Rule 20 instead of Utah Rules of Civil Procedure 65B and 65C. In _ACLU of Utah v. State_, the ACLU filed suit because the state prison and county jails throughout the state were failing to provide appropriate Covid-19 safeguards for inmates. 2020 UT 31, 467 P.3d 832. The case was dismissed for lack of standing, but one of the main topics of the briefing was the mechanism for bringing the case to the Supreme Court. The ACLU filed the case under 65B directly to the Supreme Court. They noted that there was a need for emergency relief that would address a statewide problem and provide clear guidance and binding precedent on all jail and prison facilities. Respondents pointed out that 65B requires that the petition be first brought to the District Court. In their reply, the ACLU argued that writs are flexible in nature and that the Supreme Court can (and in that case should) take the writ immediately given the nature of the situation. Both the ACLU and the State were probably somewhat wrong on the issue. While the ACLU was right in that there are rare and extraordinary situations in which the Supreme Court should have immediate review, they were wrong to bring their writ under 65B since that rule (as the State correctly pointed out) requires the case to go to a district court first. The petition should have been filed under Rule 20. Rule 20 explicitly provides for how a party may petition the Supreme Court to exercise its original jurisdiction to grant habeas petitions. The rule should remain to ensure that parties have guidance on how to bring unique situations directly to the Supreme Court.

As a final point, and to underscore a previous one, writs are meant to be flexible in nature. Their genesis is constitutional and grounded in equity. They are designed to solve the injustices that are not contemplated by the legislature in crafting law but nevertheless merit review. We request that the amendments be rejected and suggest instead that a task force be created to develop a more clear and effective writ system to encompass Rule 20, and potentially, a review of Utah Rules of Civil Procedure 65B and 65C.

Utah Association of Criminal Defense Lawyers

David Ferguson
Executive Director

Staci Visser
Amicus Committee Chair; Board Member

Ann Marie Taliaferro
Board Member