Posted: July 14, 2022
Rules of Appellate Procedure – Comment Period Closed August 28, 2022
URAP004. Appeal as of right: when taken. Amend. The Committee is posting for public comment proposed changes to Rule 4(f) again after numerous comments were received, and additional changes were made to the proposed rule amendment. The Committee previously proposed the following changes: (1) add to the rule the standard governing motions to reinstate the time for appeal; (2) restructure the section to be consistent with subsection 4(g) (addressing reinstating the right to appeal in civil cases); (3) clean up language for clarity and consistency; and (4) included a one-year deadline from discovery of facts giving rise to the claim.
After reviewing the comments received the Committee removed the three examples from Manning v. State, 2005 UT 61, 122 P.3d 628, previously located under paragraph (f)(5) because, as Manning recognized, those examples did not provide the exclusive grounds for reinstating the right to appeal. See id. ¶31 n.11.
This is much better… Thank you.
I have one final suggestion, and propose that you delete the language “or should have known in the exercise of reasonable diligence”. Almost everything “should have been known” and it guts the rule’s requirement of the defendant’s personal knowledge of the problem. This language is used to impute knowledge on a defendant where the defendant may not have had personal knowledge, but where his or her attorney did.
I propose the rule reads–
“The motion must be filed within one year, or within a reasonable time, whichever is later, from the day on which the defendant personally knew [deleted phrase] of evidentiary facts forming the basis of the claim that the defendant was deprived of the right to appeal”.
I’ve already raised some form of these concerns to the committee, but I wanted to make them in public to see whether anyone else might agree.
The proposed rule’s use of the phrase “evidentiary facts forming the basis of the claim that the defendant was deprived of the right to appeal” sounds straightforward at first glance, but I expect it will be very difficult to apply in actual cases, especially the common reinstatement scenarios. I think judges will vary widely about what kinds of facts are relevant or determinative on this proposed language. For example, consider the scenarios from Manning:
The first example is the “defendant asked his or her attorney to file an appeal but the attorney, after agreeing to file, failed to do so”. Assume defendant never hears from attorney again after asking for an appeal. Nothing happens. What fact gives rise to the claim? This is a defendant who knows his right, has attempted to exercise his right and relies upon his attorney to do so. How long can a reasonably diligent defendant wait before the “no news” creates an evidentiary basis that he’s been deprived of the right to appeal?
The second example is the defendant that “diligently but futilely attempted to appeal within the statutory time frame without fault on defendant’s part”. The pro se letter/request for an appeal is sent in the mail and is lost, never delivered, or because it is not properly titled or conform to the court’s expectation for notice of appeal, not recorded as such. Again, nothing happens and the defendant sits in solitary confinement for 5 years wondering what has happened with his appeal, never knowing about the failed attempt or, even if he assumes something went wrong, not knowing about the availability of Rule 4(f) reinstatement. How long can a reasonably diligent defendant wait before the “no news” creates an evidentiary basis that he’s been deprived of the right to appeal?
Finally, the third example is the defendant who is not properly informed of his right to appeal. He never requests an appeal because he doesn’t know he can. What kind of evidence will start the one-year time limit? Can the State bring in cellmates who exercised their right to appeal to establish that a reasonably diligent defendant would have asked questions about his own appellate rights? What if the defendant attends a court hearing in another case where the court instructs another defendant of the right to appeal, does that constitute evidence to form the basis of the claim that he was deprived? The evidentiary questions needed to establish qualification for the timeframe will be very arbitrary and not serve any real legitimate purpose, other than to give the State an avenue of continuing to deprive defendants of their constitutional rights.
The proponents of the time limit want to foreclose resurrecting appeals in old cases. Though I disagree that is a worthwhile policy (after all, these are by definition defendants who have been utterly denied their constitutional right to appeal through no fault of their own), I understand why they support it. But the proposed language places the burden on the defendant, generally unrepresented, who has already been deprived of his constitutional rights. That burden will require him to justify the weeks and months and years he didn’t fix the deprivation that was “no fault of his own.” And the language requires the defendant to file this specific motion. Many defendants, deprived of their right to appeal, and the accompanying right to counsel, will try any number of desperate and generally useless “legal” forms of self-help. If the defendant spends months or years litigating a ill-conceived Rule 22 motion because he hasn’t had qualified counsel, instead of filing the motion to reinstate, he’ll miss this timeframe. Not because he wasn’t diligent, not because he was purposefully delaying, but because he was unrepresented and ignorant of the limitations of the rule.
I stand by my original position that no timeframe should apply, but if one is absolutely necessary it should be the government’s burden to establish bad faith on the part of the defendant. What about something like this:
If the prosecution believes the motion was filed beyond one year, or beyond a reasonable time, whichever is later, from the day on which the defendant personally knew, or should have known in the exercise of reasonable diligence, of evidentiary facts forming the basis of the claim that the defendant was deprived of the right to appeal, the prosecution can file an objection on that basis. The prosecution will have the burden of demonstrating by a preponderance of the evidence that the defendant acted in bad faith by delaying the filing of the motion.
I write in agreement with the comments of both Ann and Doug and wholeheartedly agree with the bad faith standard that Doug proposes.
Every time I speak with a prisoner I am reminded of just how little legal information they are actually given. What kind of reasonable diligence should be expected of prisoners? There is no law library at the prison, meaning they have no rule books or code books. The contract attorneys who are assigned to help them were essentially absentee through much of the pandemic and are sometimes non-responsive to prisoners. Prisoners may not necessarily keep records of their efforts because they wouldn’t even know that the “reasonable diligence” standard applies to them, because they won’t know that this rule exists. Any prisoner who says, “I didn’t know what the law was” will always face the same “ignorance of the law is no defense” position. And yet, nearly every time an inmate expresses awareness of a legal topic to me it has come through word of mouth through other inmates who have discussed the topic. They have almost no ability to fact check each other because they don’t have a law library, the money to personally pay for law books, or regular access to competent legal services. Perhaps our trial courts will give prisoners the benefit of the doubt. My experience is that when prisoners or jailees complain about how difficult their conditions are, judges tend to tune out those protests. When the same complaints are heard all of the time it stops sounding like a good explanation. It sounds like another inmate with the same excuses trying to get different treatment from everyone else. Those issues fall on deaf ears when courts should instead be alarmed at how frequently they hear about the obstacles that inmates face.
This proposal runs the risk of creating a structural injustice. The term structural injustice comes from an extensive body of literature discussing situations in which a person is deprived of a right due to a group of obstacles put in that person’s way by different organizations. Structural injustice describes those situations in which no one can be blamed for depriving someone of their rights; it is the structure of the system itself that causes the depravation. Where the prison (i.e., organization one) makes legal information difficult to obtain and verify while the courts (i.e., organization two) creates procedural rules that inadequately consider the obstacles that the prison (organization one) puts in place, then neither organization can take blame for creating an unjust system because both organizations can point to the other as being at fault. That’s structural injustice.
A prisoner may come before a judge on a Manning motion. That prisoner may have low IQ, may be marginalized by other inmates, speak poor English as an immigrant, or be illiterate (there’s quite a few of those folks in the criminal legal system) among any other variety of conditions.
It may be that a relaxed rule will allow some inmates to get appeals by falsely claiming ignorance. To the extent that the appellate courts see their primary role as correcting substantive errors in trial courts, then being confronted with a few more potential errors than they otherwise would have seen seems like a small price to pay for the rights of the convicted to have erroneous convictions reversed. If it is worse that one innocent person go to prison than 10 guilty go free, then it is also worse that 10 otherwise procedurally barred appeals get heard than 1 innocent person losing the right to appeal on a burdensome procedural standard.
I support the standard that Doug proposes. If anything, the Court should try it out first before trying something more restrictive.
I disagree with amending rule 4(f) to include a time limit. Rule 4(f) was created to protect a criminal defendant’s constitutional right to appeal. If a defendant has been deprived of that right through no fault of his own, he should be granted his appeal without additional hurdles that will be difficult for an incarcerated person to meet. If there must be a time limit, I agree with Ann Taliaferro’s, Doug Thompson’s, and David Ferguson’s concerns.