State v. Allred; State v. Sombra-Delgado; State v. Vine

2024 UT App 163

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ALLEN MICHAEL ALLRED,
Appellant

No. 20230738-CA

STATE OF UTAH,
Appellee,
v.
MOISES SOMBRA-DELGADO,
Appellant

No. 20220673-CA

STATE OF UTAH,
Appellee,
v.
SEVERO GONZALO VINE,
Appellant

No. 20221058-CA

Per Curiam Decision
Filed November 7, 2024

Brian Craig, Attorney for Appellant
Allen Michael Allred

Sarah J. Carlquist, Attorney for Appellant
Moises Sombra-Delgado

Ann Marie Taliaferro, Attorney for Appellant
Severo Gonzalo Vine
State v. Allred; State v. Sombra-Delgado; State v. Vine

Sean D. Reyes and Andrew F. Peterson,
Attorneys for Appellee

Before Judges Orme, Tenney, and Luthy.

PER CURIAM:

¶1 In each of the above-captioned cases, a defendant has
appealed his conviction, the State has assigned a particular
attorney to represent it on appeal, and the State has requested a
large number of extensions in which to file its responsive brief. Of
note, this court previously granted the equivalent of five 30-day
extensions in State v. Allred, eight 30-day extensions in State v.
Vine, and sixteen 30-day extensions in State v. Sombra-Delgado. In
each case, the State then requested an additional extension, and
the defendants’ responses to these most recent requests were
varied. In Allred, the defendant filed written oppositions to
several of the State’s most recent requests. In Vine, the defendant
informed the State by email that he “did not stipulate” to the
State’s proposed extension of time. In Sombra-Delgado, the
defendant stipulated to the State’s most recent request. In
response to the most recent requests, this court ultimately issued
an order in each case granting the State additional time, but the
court then gave the State a final deadline accompanied by
language that, with slight variations between the cases, stated that
the State should anticipate receiving no further extensions.

¶2 Through the Director of the Criminal Appeals Division of
the Utah Attorney General’s Office, the State has now filed a joint
motion to reconsider these orders. In Allred, the defendant
opposed the motion to reconsider, giving this court multiple
reasons why he believes the State should not be given any more
time in which to file its brief. In Vine, the defendant also filed an
opposition to the motion, albeit in more cursory terms, primarily

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pointing out that, with the final extension, the State will have had
74 more days to file its brief than the defendant took to file his. In
Sombra-Delgado, the defendant remained silent on the motion to
reconsider.

¶3 In recent years, this court has seen a marked uptick in the
number of requests that it has received for extensions in criminal
appeals, and these requests have come from both sides. There are
many reasons why criminal appeals proceed somewhat
differently than civil appeals when it comes to the time allotted
for filing briefs. Unlike civil litigation, where parties are typically
represented by privately retained counsel, one side in a criminal
appeal is represented by the government, and its appellate
attorneys thus have no ability to decline cases. In the vast majority
of appellate cases, the defendant is represented by appointed
counsel, and these attorneys are under similar constraints.
Moreover, publicly funded prosecutors and defense attorneys are
subject to budget and staffing limitations that are imposed on
them by governments. In past discussions, we have been
consistently and reliably told by both sides that caseloads in
criminal cases have risen over the past several years at rates that
exceed the creation of new attorney positions by the involved
governments.

¶4 As these caseloads have risen, the number of extension
requests received by this court has risen too. For a time, both sides
were routinely stipulating to each other’s requests. But in recent
years—and, more particularly, in recent months—an increasing
number of defendants have begun opposing the State’s requests
after the State has received a number of extensions. (For its own
reasons, the State has almost uniformly chosen not to oppose
requests for additional time filed by defendants at the appellate
level.) As a result, this court has been forced to issue rulings
regarding contested motions for extra time in an ever-growing

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State v. Allred; State v. Sombra-Delgado; State v. Vine

number of cases. This new field of extension-related litigation has
imposed great demands on attorneys, judges, and court staff
alike. In one of the three cases at issue here, for example, the
number of pages devoted to litigating the State’s contested
extension requests has now exceeded the number of pages that
are in the merits brief that the defendant has already filed.

¶5 Given that the State has filed a consolidated motion to
reconsider in these cases that is actively opposed by two of the
three defendants, and given that this contested motion is part of
an ongoing pattern of briefing delay that does not seem to be
abating, we think it appropriate to issue this published opinion to
explain our reasons for denying the State’s motion to reconsider.
In doing so, we have no desire to embarrass any attorney or any
office. Rather, we hope to provide some insight and clarity
regarding our processes for the benefit of those involved in the
criminal appeals system, and we likewise seek to settle some of
the recurring issues that have been repeatedly raised (and,
without published precedent, will likely continue to be raised) in
extension disputes in criminal appeals

¶6 Under rule 26(a) of the Utah Rules of Appellate Procedure,
an appellant is given 40 days to file an opening brief, and the
appellee is then given 30 days to file a responsive brief. Pursuant
to rule 22(b), a party may file a motion for an extension of these
initial deadlines. At its outset, rule 22(b) states that “[m]otions for
an enlargement of time for filing briefs beyond the time permitted
by stipulation of the parties under Rule 26 are not favored.” Utah
R. App. P. 22(b)(1). Under the applicable portion of rule 26, the
time for filing a brief may be extended by stipulation of the parties
“for no more than 30 days.” Id. R. 26(a). Stopping here, we note
two things of significance: first, rule 22(b) puts its thumb on the
scale against a party receiving additional extensions after the
single stipulated 30-day extension authorized by rule 26(a); and

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second, these rules contemplate that it matters whether the other
side has stipulated.

¶7 Although additional extensions are, by rule, expressly
disfavored, they are not categorically prohibited. Instead, rule
22(b)(2) states that “[t]he court for good cause shown may upon
motion extend the time prescribed by these rules,” and it further
provides that “[f]or the purpose of this rule, good cause includes,
but is not limited to, the complexity of the case on appeal,
engagement in other litigation, and extreme hardship to counsel.”
Id. Under the plain language of this rule, the question thus
becomes whether there is “good cause” for granting additional
time. And while the starting place for that analysis is the three
enumerated factors, the rule’s use of the phrase “includes, but is
not limited to” means that these three factors are not exhaustive.
This reality is also reflected by the phrase “good cause” itself. The
phrase “good cause” is used in many places in the law, and when
it is, it commonly connotes a holistic inquiry. See, e.g., Morris v.
Department of Workforce Services, 2012 UT App 293, ¶ 4, 288 P.3d
617 (per curiam) (noting that the “ultimate decision as to whether
good cause exists is a mixed question of law and fact” that takes
into account “the totality of facts presented” (cleaned up)).

¶8 It is also significant that rule 22(b)(2) uses the word “may.”
“The plain, ordinary, and accepted meaning of the word ‘may’ is
permissive or discretionary, generally indicating that an
individual is either permitted or has a possibility to do
something.” Holmes Dev., LLC v. Cook, 2002 UT 38, ¶ 25, 48 P.3d
895 (cleaned up). The rule’s use of this permissive word appears
to be no accident. In the broader judicial system, certain decisions
are understood to be discretionary with the responsible court.
And among those kinds of decisions, case management decisions
and decisions about continuances are perhaps the most
quintessentially discretionary decisions that courts are allowed to

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State v. Allred; State v. Sombra-Delgado; State v. Vine

make. See, e.g., Brown v. Glover, 2000 UT 89, ¶ 43, 16 P.3d 540
(“Trial courts have substantial discretion in deciding whether to
grant continuances, and their decision will not be overturned
unless that discretion has been clearly abused.” (cleaned up));
Jensen v. Ruflin, 2017 UT App 174, ¶ 23, 405 P.3d 836 (“A district
court is endowed with inherent power to manage its docket, and
we accordingly review its decisions in this arena only for abuse of
discretion.” (cleaned up)); State v. Bergeson, 2010 UT App 281, ¶ 7,
241 P.3d 777 (“It is clear that the district court exercises the
discretion to manage its docket and set firm deadlines for motion
practice. Similarly, the district court has considerable discretion to
determine whether a litigant has demonstrated good cause to file
a motion after a deadline is missed.” (cleaned up)). So here,
insofar as the rule states that upon a showing of good cause, the
appellate court “may” grant an extension, the rule contemplates
that the decision of whether to grant the requested extension is
one that is left to the discretion of the appellate court.

¶9 By statute, the court of appeals “sit[s] and render[s]
judgment in panels of three judges,” and the panel composition is
assigned “by random rotation of all judges” on the court. Utah
Code § 78A-4-102(2)(a), (b). By practice, the court of appeals has a
rotating law and motion panel whose composition changes each
month. When a motion for an extension is filed, the motion and
any opposition are submitted to that month’s assigned panel.
When this occurs, the assigned panel determines whether there is
good cause to grant the requested extension.

¶10 Pursuant to rule 22(b)(2), the assigned panel thus considers
such things as the “complexity of the case on appeal,” counsel’s
“engagement in other litigation,” and any “extreme hardship to
counsel” that may result from granting or denying the request.
Beyond these enumerated factors, panels of this court commonly
consider other relevant factors, including whether the request is

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stipulated or opposed, whether the defendant is incarcerated, and
the nature of the crime at issue.

¶11 Panels also take into account the total number of extensions
that both the requesting party and the other party have previously
received in the case. After all, the people of Utah can rightly
expect that their justice system will seek to decide cases, including
appeals, within a reasonable period of time. When a requesting
party has not received many prior extensions, the court’s practice
has been to liberally grant the request. But as the number of
requests in a case increases, the court necessarily takes the past
delays into account in determining whether there is good cause
for granting another extension. In such instances, it matters
whether the other party actively opposes the request, and as a
matter of fairness, it likewise matters how many extensions the
opposing party previously received. These things are not
dispositive, but they are also not meaningless. While the party
that is requesting the extension certainly has its own interests at
stake in the appeal, the other side does too, and the rules simply
do not contemplate that one side’s interests unilaterally control
the inquiry.

¶12 In each of the appeals at issue in this motion to reconsider,
a randomly assigned law and motion panel considered the
various factors that were properly before it and then issued an
order. In each case, the assigned panel granted the State’s latest
request for more time, but, in consideration of the various
appropriate factors, the panel also concluded that the case had
reached a point where it would no longer be appropriate to grant
additional extensions. The panel thus ordered the brief to be filed
by a set date.

¶13 In the motion to reconsider at issue, the State now asks the
court to revisit those prior orders. For clarity, we note that this

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motion was assigned to the law and motion panel that was
constituted at the time the motion to reconsider was filed (as
opposed to the prior panels that issued the orders in question). In
the motion to reconsider, the State offers several reasons why it
believes this court should reconsider those prior orders and be
willing to grant additional extensions in the three cases.

¶14 The State’s first and primary argument—both in this
motion to reconsider, as well as in many prior cases in which
extension requests have been opposed—has to do with resource
allocation. The State strenuously argues that the Criminal
Appeals Division of the Utah Attorney General’s Office (which
represents the State in most criminal appeals) is under-resourced
and simply does not have the capability to file briefs in a more
expeditious manner.

¶15 The court appreciates the work done by the Criminal
Appeals Division—both currently and over the years. Its
attorneys have consistently represented the State’s interests
capably and well. (For that matter, the court is appreciative of the
similarly laudable work commonly done by the publicly
appointed attorneys who represent criminal defendants on
appeal.) The court also appreciates the demands that are placed
on the State’s attorneys by virtue of what are essentially non-
declinable caseloads. But the same dynamics are also largely
present for publicly appointed appellate defense attorneys, yet
those attorneys commonly (though not always) file briefs within
timeframes shorter than those requested by the State.1

1. To be clear, the court’s concerns about the delays in criminal
appeals are not one-sided. Although the State does not oppose
extension requests from defendants, the court has on its own
(continued…)

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¶16 This suggests that at least some part of the dynamic may
be attributable to the amount of time the State chooses to devote
to each case, which is something that, financial resource-
allocation problems aside, is within the State’s control. And this is
also something that, at a generalized level, is not unique to the
criminal appeals process. For budget, workload, or other reasons,
public and private attorneys alike must routinely decide how
much time can be devoted to any particular motion or brief, and
it is the rare situation in which an attorney could not spend even
more time perfecting a filing if time or resources were not an issue.

¶17 In any event, we do recognize that a sizeable portion of the
problem here seems attributable to financial resource allocations
for the offices that employ the public-sector appellate attorneys.
But as counsel in Allred points out in his opposition, publicly
available information suggests that there are hundreds of
attorneys within the Utah Attorney General’s Office, and the
Attorney General could in theory choose to make different
personnel allocation decisions within the office. And because it is
the State as a whole, and not the Utah Attorney General’s Office
or the Criminal Appeals Division, that is ultimately the party in
question, the Legislature could also, if it chose, allocate more
resources to the office.

¶18 And while acknowledging that such solutions may be
difficult to enact, especially in the short term, the court ultimately
believes that it would be unfair to force individual defendants to
automatically bear the brunt of decisions made by the Attorney

initiative capped defense-side requests for excessive extensions in
many cases. And in a few recent instances, the court issued sua
sponte orders to show cause where particular defense-side
attorneys who were representing defendants as appointed
counsel had engaged in patterns of extreme and excessive delays.

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General or the Legislature. In many criminal appeals, the
defendant is incarcerated, so any delay affects that defendant in a
very direct way. Beyond that, in some cases, this court reverses.
As a result, excessive delays during the briefing process may have
downstream effects in terms of evidence and memory loss if the
case needs to be retried. Indeed, the very reason why the court of
appeals was created was to help ameliorate the long delays that
had crept into the appellate system by a previously overworked
supreme court, so it would undermine the purpose of this court
to allow its own extension practice to be employed in a way that
creates excessive delays at the briefing stage.

¶19 We note that we are not alone in concluding that, when a
case has reached some outer point of delay, resource allocation
issues created by governments no longer justify granting
additional extensions to government attorneys. In a published
order, for example, a judge of the Second Circuit observed, “If a
case must occasionally be reassigned to another attorney in order
to meet a deadline, so be it. If the staffing pattern in a law office
or government agency is insufficient to meet judicially imposed
requirements, the office or agency must bear the ultimate
responsibility.” United States v. Raimondi, 760 F.2d 460, 461 (2d Cir.
1985); see also Larue v. Derwinski, 2 Vet. App. 386, 386-87 (1992)
(stating that while the court was “sympathetic” to the resource
and staffing problems of a government attorney and the office in
question, the court’s concern about “fairness to [the] appellant”
should still be taken into account, and further noting that for the
“appellant involved,” the “delaying effect” would be “the same”
regardless of the reasons for the government’s delay).

¶20 To be clear, this court has been and will continue to be
cognizant of the workload demands on the attorneys for both
sides. And to again stress some of the points already made above,
the court does take these demands into account, and, even when

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there has been an opposition from the other side, the court does
routinely grant a substantial number of extensions to each side in
a criminal appeal. But as noted, the ultimate decision remains
discretionary with the court. And in the court’s view, resource
allocation problems attendant to the assigned offices are not the
only factor to be considered and, at some point, can be
outweighed by other factors.

¶21 This was the judgment of each of the assigned panels here.
As noted, before the State filed the extension requests at issue in
this motion, the court had already granted the equivalent of five
30-day extensions in Allred, eight 30-day extensions in Vine, and
sixteen 30-day extensions in Sombra-Delgado. In each of these
cases, the number of extensions already given to the State equaled
or exceeded the number of extensions granted to the other side.
And in each of the motions at issue, this court granted the State’s
latest request (in one case—Allred—extending the State’s deadline
by 85 days instead of the 31 days it requested) before stating that
no further extensions would be granted.

¶22 But at some point, a panel may conclude that it would no
longer be reasonable to grant a party any more time in which to
file its brief. Though such decisions are heavily context-
dependent (and, also, are almost never published), we note that
in one prior case, we limited the extension period to seven
months. See Provo City v. Stacy, 2000 UT App 337U, para. 3 (per
curiam). In another, we concluded that, even with “the workload
of a public defender,” “nearly a hundred days is more than
enough time to prepare” a brief “in a professional manner.” Ogden
City v. Stites, 2002 UT App 357, ¶ 2, 58 P.3d 865. And a review of
cases from elsewhere shows that other appellate courts were
likewise unwilling to grant extensions in ranges similar or even
narrower than those imposed in the cases before us in this motion.
See, e.g., Patterson v. U.S. Virgin Islands, 597 F. App’x 671, 673 (3d

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State v. Allred; State v. Sombra-Delgado; State v. Vine

Cir. 2015) (expressing the court’s “disappointment” after the
government failed to file a brief after two previous extensions had
been granted); IDHW v. Doe, 542 P.3d 295, 296 (Idaho 2024) (per
curiam) (denying the appellants’ motion to reconsider a third
extension request and denying the appellants’ motion for a fourth
extension); Lawrence Sav. Bank v. Garabedian, 727 N.E.2d 97, 99, 102
(Mass. App. Ct. 2000) (holding that a single justice of the court had
not abused his discretion when he denied the appellant’s second
request for an extension, particularly where the appellee had
“opposed the motion” and argued that “it would be prejudiced
by further delays”); Castl v. Pennymac Holdings, LLC, No. 82296,
2022 WL 1537171, at *3 (Nev. May 13, 2022) (stating that the court
previously denied the appellant’s eighth request for an extension
of time to file the opening brief because the appeal had already
been pending for 15 months and granting appellee’s motion to
dismiss the appeal); Chavez v. Rasco, No. 03-24-00121-CV, 2024 WL
4643933, at *1 (Tex. App. Oct. 31, 2024) (denying the appellant’s
seventh request for an extension of time to file the opening brief
and dismissing the appeal because when granting his sixth
request, the court advised the appellant that failure to file the brief
by the extended date might result in dismissal of the appeal “for
want of prosecution”); Newfield v. State, 766 S.W.2d 408, 409 (Tex.
App. 1989) (denying the State’s fourth request for an extension of
time to file the opening brief and noting that in granting the third
extension the court cautioned that no further extensions would be
granted). 2

2. While there are of course differences between the various state
systems and the federal system, it appears that in the federal
appellate system, it is uncommon for a federal appeals court to
grant more than two extensions of time to file an appellate brief.
See 1 Federal Criminal Appeals § 6:123.

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¶23 Thus, the court has carefully considered the State’s
arguments regarding its available resources. But those realities
were taken into account by the panels that considered the original
motions. In the view of both those panels and this one, it is
appropriate under the broader circumstances of each case to
impose a deadline for the State to file its brief.

¶24 Second, in its motion to reconsider, the State suggests that
a particular defendant’s position regarding an extension request
has been given too much importance in the court’s
decision‑making. Expounding on this, the State asserts that a
“troubling and likely unintended consequence” of taking the
defendant’s position into account is that it gives an advantage to
defendants who have access to “[p]rivately retained counsel.” But
this is an adversarial system, and the court fundamentally
disagrees with any suggestion that the other side’s opposition to
a motion should not at least be taken into account. And this is
particularly so regarding a motion like this one that is akin to a
continuance request and thus directly impacts the other side on
such an obvious, practical level. In addition, it has not been the
experience of the court in recent months that the oppositions to
the State’s extension requests have been primarily filed by
privately retained attorneys. If anything, the opposite is true, with
a significant majority of the opposed requests coming in cases
involving appointed appellate counsel.

¶25 Third, the State points to circumstances relating to the
particular attorney that the State has assigned to each of these
three cases. 3 The State notes that the attorney is a part-time
employee, and it further notes that the attorney has time

3. In the caption to this opinion, we have listed only the attorney
who filed the motion to reconsider, and this attorney is not the
attorney who is currently assigned to the underlying cases.

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constraints such as attending multiple moots, editing “junior
attorney’s filings,” and serving on a rules committee. In many
other cases involving opposed extension requests, the State has
commonly given similar reasons relating to the workload
demands on its other attorneys (albeit without the part-time
component that seems unique to this attorney).

¶26 The court appreciates the importance of things such as
mooting, internal mentoring, and serving on rules committees.
And the court further appreciates the work of this attorney, which
has been exemplary. But these additional obligations are all
voluntary. And again, defense-side attorneys have similar
constraints, and yet the institutional defense-side appellate
attorneys are not requesting, on average, the same number of
extensions requested by the State.

¶27 Perhaps more importantly, the court’s orders do not
contemplate that any particular attorney must represent the State
in any particular case. If a particular attorney has specific
demands on his or her time, the State is certainly free to adjust its
case assignments, either at the outset or midstream if it becomes
clear that the attorney will not be able to file a brief within
timelines imposed by the court. But while the court has accounted
for, and will continue to account for, the demands on an
individual attorney in its decisions, no one factor is or can be
dispositive in the discretionary decision before the court in these
requests. And at some point, if there have already been substantial
delays in a case, and if a defendant is now actively asserting his
or her own interests, the State’s resource constraints and
assignment decisions must yield so that the case can be submitted
to the court for deliberation and decision.

¶28 Finally, because the court has now imposed firm deadlines
in these cases, and since those deadlines, in the State’s view,

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conflict with each other, the State’s reconsideration motion asks
this court to “identify which of the three briefs it wants filed first.”
To the extent that the State is suggesting that the court should
insert itself into the State’s decisions about which attorney should
write which brief and in what order, the court declines. Even if
the court administratively could do this, it may present separation
of powers problems for the court to do so. The only thing the court
can or should do is make good cause determinations based on the
information before it.

¶29 In sum, the decision about whether good cause exists to
grant an additional extension is one that is squarely within the
discretion of the court. And by rule, extensions beyond an initial
stipulated extension are disfavored. Even so, the court has been
cognizant of the unique demands placed on public-sector
attorneys, and the court has been and will continue to be willing
to grant a reasonable number of extensions in any case. But there
comes a point at which it becomes unreasonable and unjust to
allow the briefing process to essentially extend indefinitely. At
some point, the briefs simply must be submitted so that the court
can begin its own work of deciding the appeal. As a result, when
a panel of this court has considered the relevant factors and has
determined that a brief must be filed by a certain date, that
decision will remain the order of the court absent some truly
extraordinary or emergency circumstance.

¶30 For the foregoing reasons, the State’s motion to reconsider
the orders at issue is hereby denied. The court also notes that it
stayed the previously imposed deadlines pending its decision on
this motion. Having now denied the motion, the court will issue
orders in the affected cases setting forth new and final deadlines.

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