State v. Robles-Vasquez

2015 UT App 108

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
MICHAEL ROBLES-VASQUEZ,
Defendant and Appellant.

Memorandum Decision
No. 20130944-CA
Filed April 30, 2015

Third District Court, West Jordan Department
The Honorable Terry L. Christiansen
No. 081402085

Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee

JUDGE JOHN A. PEARCE authored this Memorandum Decision, in
which JUDGES J. FREDERIC VOROS JR. and STEPHEN L. ROTH
concurred.

PEARCE, Judge:

¶1 Defendant Michael Robles-Vasquez1 appeals from the
denial of his motion to reinstate his time to file a direct appeal,
arguing that the district court’s findings were inadequate. He
also argues that his appeal period should be reinstated because
his trial counsel’s failure to file a timely appeal deprived him of

1. Defendant’s last name is spelled in the record as both Robles-
Vasquez and Robles-Vazquez. At the beginning of his motion-
hearing testimony, Defendant spelled his name a third way:
Robles-Vazqez. We employ the spelling under which his appeal
filed and under which he was sentenced.
State v. Robles-Vasquez

his constitutional right to effective assistance of counsel. We
affirm.

¶2 Defendant pleaded guilty to one count of attempted rape
and one count of attempted forcible sodomy. On April 21, 2010,
the district court sentenced him to two consecutive prison terms
of three years to life. Defendant claims that immediately after he
was sentenced, he informed his trial counsel that he wanted to
‚appeal the sentence‛ and that trial counsel agreed to ‚look in
on that.‛ An appeal must generally be filed within thirty days.
Utah R. App. P. 4(a).

¶3 Defendant was then transported to prison. It is
undisputed that he was not allowed to contact, or be contacted,
by anyone outside the prison for approximately forty-five days.
According to Defendant, he wrote to his trial counsel two or
three months after sentencing. Trial counsel responded that he
no longer worked at the public defender’s office, that he had
moved on to private practice, and that he wished Defendant
luck.

¶4 Defendant took no further action to pursue an appeal for
almost three years. On May 17, 2013, Defendant filed a pro se
motion to reinstate his appeal period. The district court
appointed new counsel for Defendant and held a hearing at
which Defendant testified. The district court found, ‚It seems
disingenuous to believe that if [Defendant] wanted to pursue an
appeal, that he would’ve waited over three years.‛ The court
then denied Defendant’s motion.

¶5 A district court may reinstate the thirty-day period for
filing a direct appeal if it finds that a defendant ‚has been
unconstitutionally deprived, through no fault of his own, of his
right to appeal.‛ Manning v. State, 2005 UT 61, ¶ 31, 122 P.3d 628.
Circumstances permitting the reinstatement of an appeal period
include:

20130944-CA 2 2015 UT App 108
State v. Robles-Vasquez

(1) the defendant asked his or her attorney to file
an appeal but the attorney, after agreeing to file,
failed to do so; (2) the defendant diligently but
futilely attempted to appeal within the statutory
time frame without fault on defendant’s part; or (3)
the court or the defendant’s attorney failed to
properly advise defendant of the right to appeal.

Id. (citations omitted); see id. ¶ 31 n.11 (noting that this list is not
exclusive); see also Utah R. App. P. 4(f). Because Defendant’s
challenge is limited to whether the district court made adequate
findings, we review for correctness the district court’s decision to
deny Defendant’s motion. See State v. Collins, 2013 UT App 42,
¶ 5, 298 P.3d 70, rev’d on other grounds, 2014 UT 61, 342 P.3d 789;
see also State v. Kabor, 2013 UT App 12, ¶ 8, 295 P.3d 193.

¶6 At the district court hearing, Defendant asserted (1) that
he had requested that his trial counsel file an appeal but trial
counsel failed to do so and (2) that Defendant ‚diligently, but
futilely*,+ attempted to appeal within the deadline.‛ He now
argues that the district court ‚never made findings or assessed
*Defendant’s+ credibility on these particular issues.‛ This is a
challenge to the adequacy of the district court’s findings.

¶7 ‚Where factual issues are involved in determining a
motion, the court shall state its findings on the record.‛ Utah R.
Crim. P. 12(e). Here, the district court stated, ‚It seems
disingenuous to believe that if [Defendant] wanted to pursue an
appeal, that he would’ve waited over three years to pursue the
appeal.‛ The district court further stated, ‚If he had a
conversation with [his trial counsel] on the day of the sentencing,
I understand that there was a period of time that he was in
detention to the point that he could not communicate in writing
or by phone, but certainly it would not take three years.‛ These
findings directly address Defendant’s credibility about his claim
that, during the thirty-day period, he wanted to file an appeal.

20130944-CA 3 2015 UT App 108
State v. Robles-Vasquez

¶8 It is true that the district court did not explicitly find that
Defendant had not asked his trial counsel to file an appeal. Nor
did the district court explicitly find that Defendant had not
diligently but futilely attempted to appeal during the statutory
time frame. However, the district court’s written findings, which
mirrored its oral findings, did address those questions. By
stating, ‚If *Defendant+ had a conversation with [counsel] on the
day of sentencing, . . . it certainly would not take three years,‛
the district court implicitly rejected the claim that Defendant
actually asked his counsel to file an appeal. Similarly, the finding
that it ‚seems disingenuous to believe that if [Defendant]
wanted to file an appeal, that he would have waited over three
years to pursue the appeal‛ constitutes a finding that Defendant
did not diligently and actively attempt to appeal.

¶9 Undoubtedly, the district court could have been more
explicit in its findings.2 But our supreme court has explained that
a district court’s failure to make explicit findings does not
automatically require a remand for more precise findings. If the
basis for the ruling is apparent from the record, this court may
affirm. See State v. Ruiz, 2012 UT 29, ¶ 24, 282 P.3d 998
(‚Although we have consistently encouraged trial judges to give
reasons on the record for discretionary rulings, we have held
that failure to do so does not, alone, constitute an abuse of
discretion and does not warrant reversal. This is particularly true
where the basis for a judge’s discretionary ruling is apparent on
the record.‛); see also State v. Pecht, 2002 UT 41, ¶ 34, 48 P.3d 931
(‚While we strongly recommend that trial courts enter written
findings, we hold that where the record as a whole sufficiently
*supports a district court’s ruling+, an absence of written findings
will not invalidate the trial court’s conclusions.‛).

2. More precise findings would likely have obviated the need to
litigate this issue on appeal.

20130944-CA 4 2015 UT App 108
State v. Robles-Vasquez

¶10 We conclude that the district court entered findings about
Defendant’s credibility and that those findings were adequate to
address the issues before the district court.

¶11 Defendant also contends that his time to appeal should be
reinstated because his trial counsel’s performance during the
2010 plea and sentencing proceedings amounted to
constitutionally ineffective assistance of counsel.3 ‚To succeed on
a claim of ineffective assistance of counsel, a defendant must
show that trial counsel’s performance was deficient and that the
defendant was prejudiced thereby.‛ State v. Hards, 2015 UT App
42, ¶ 18, 345 P.3d 769 (citing Strickland v. Washington, 466 U.S.
668, 687 (1984)). ‚Because both deficient performance and
resulting prejudice are requisite elements of an ineffective
assistance of counsel claim, a failure to prove either element
defeats the claim.‛ Id. (citing Strickland, 466 U.S. at 697).

¶12 Specifically, Defendant argues that his trial counsel
performed deficiently by failing to file an appeal on his behalf.
He notes that the United States Supreme Court ‚has ‘long held’
that ‘a lawyer who disregards specific instructions from the
defendant to file a notice of appeal acts in a manner that is
professionally unreasonable’ and mandates a new appeal.‛
(Quoting Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000).) This
contention presupposes that Defendant asked his trial counsel to
file an appeal.

¶13 The district court did not explicitly find that Defendant
had not in fact asked his trial counsel to file an appeal. However,
as we have explained, by finding Defendant’s testimony to be
disingenuous, the district court implicitly found that Defendant

3. Defendant was represented by new counsel at the 2013
hearing on his motion to reinstate the appeal period. On appeal,
he is represented by a third attorney.

20130944-CA 5 2015 UT App 108
State v. Robles-Vasquez

did not ask his counsel to file an appeal within the permitted
time. Because Defendant has not shown error in either the
express or implied findings, we accept the district court’s
implied finding that Defendant did not ask his trial counsel to
file an appeal. And because Defendant did not actually make
such a request, Defendant cannot demonstrate that his trial
counsel performed deficiently by failing to file an unrequested
appeal.

¶14 We conclude that Defendant’s ineffective assistance of
counsel claim fails because he has not shown that his trial
counsel performed deficiently. See Hards, 2015 UT App 42, ¶ 18.

¶15 Affirmed.

20130944-CA 6 2015 UT App 108