State v. Kabor

2013 UT App 12
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

MOHAMED DAFFALLA KABOR,

Defendant and Appellant.

Opinion
No. 20110187‐CA
Filed January 17, 2013

Third District, Salt Lake Department
The Honorable Judith S.H. Atherton
No. 071904828

Debra M. Nelson, Attorney for Appellant
John E. Swallow and John J. Nielsen, Attorneys for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion,
in which JUDGES WILLIAM A. THORNE JR.
and J. FREDERIC VOROS JR. concurred.

ROTH, Judge:

¶1 Mohamed Daffalla Kabor appeals from the denial of his
motion to reinstate his right to appeal. We affirm.

BACKGROUND

¶2 On November 19, 2008, Kabor was convicted of murder,
obstruction of justice, and three counts of discharging a firearm
State v. Kabor

from his vehicle. He was sentenced on January 23, 2009, to the
statutory prison terms on each count with the sentences for murder
and obstruction of justice to run consecutively to each other and the
sentences for the firearm offenses to run concurrently with each
other and with the other two sentences. Following sentencing, the
district court failed to notify Kabor of his right to appeal as
required by rule 22(c) of the Utah Rules of Criminal Procedure.

¶3 Kabor filed a notice of appeal on April 10, 2009, seventy‐
seven days after sentencing. Apparently recognizing that his notice
of appeal was untimely, Kabor subsequently filed a motion and
supporting memorandum to reinstate his time to file an appeal
under rule 4(f) of the Utah Rules of Appellate Procedure. See
generally Utah R. App. P. 4(f) (permitting a defendant to move to
reinstate the right to direct appeal under certain circumstances and
establishing the procedure for doing so). Kabor asserted that
reinstatement was appropriate because he was unconstitutionally
denied the right to appeal by the court’s failure to comply with rule
22(c). The State filed a response to Kabor’s motion and requested
a hearing.

¶4 At the hearing, Kabor testified in his own behalf. He
reported that immediately after trial he informed his trial counsel,
Bradley Rich, that he wanted to appeal. According to Kabor, Rich
discouraged an appeal because his “chances aren’t good.” Kabor
reported that he nevertheless continued to insist on an appeal and
reiterated his desire to appeal when Rich visited him at the jail
prior to sentencing, although he did not repeat this request to Rich
or the court at the sentencing hearing itself. Kabor further ex‐
plained that while he was aware generally of his right to appeal, he
was never informed by the court or by Rich of the thirty‐day
window for doing so. Kabor testified that he first became aware of
the thirty‐day time period from a discussion with his cellmate on
March 18, 2009, about sixty days after sentencing. The cellmate
incorrectly informed him that he needed to have his notice of
appeal notarized, which caused further delay in his filing the
notice.

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State v. Kabor

¶5 The only other witness at the motion hearing was Kabor’s
attorney, Rich, who testified that he spoke with Kabor a number of
times regarding his right to appeal his convictions. Rich explained
that he first spoke with Kabor about the possibility of appeal while
the jury was deliberating during the November 2008 trial.1
Specifically, he testified that he told Kabor that, if convicted, Kabor
would be sentenced “six or eight weeks down the road. . . . And
after that, if he chose to do so, he could appeal, but his rights to
appeal wouldn’t mature until after the date of sentencing.” Rich
next addressed the appeal right with Kabor about a week before
the date set for sentencing, in a letter explaining the appeal process.
The letter stated,

As I previously told you[,] following your sentenc‐
ing, you will have the right to appeal. I confine my
practice to criminal defense trial work and do not do
appeals. If you or your family desire to have some‐
body in our office handle that, I will put you in touch
with Liz Hunt, who does our appellate work. . . . If
you and your family cannot afford counsel, I believe
that the judge will appoint you an excellent public
defender to pursue that appeal if you desire. We
would need to make that request to the judge the day
of your sentencing. Let me know what your desire is
in advance of sentencing.

Sadly, I do not see obvious grounds for appeal
that ha[ve] any likelihood of being successful but it
is certainly your right to do that if you choose.

1
Rich testified that he had explained the interlocutory
appeal process to Kabor after his motion to suppress was denied.
Because this appeal deals with Kabor’s right to appeal the final
judgment and convictions, we discuss only the testimony rele‐
vant to that issue.

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State v. Kabor

The letter was dated January 16, 2009, but Rich could not remem‐
ber if he mailed the letter or hand‐delivered it when he visited
Kabor at the jail prior to the January 23 sentencing. At that meeting,
Rich discussed “whether or not [Kabor] wanted to appeal and
whether or not he would be able to hire counsel.” Rich explained
to him that an appeal had to be filed within thirty days of sentenc‐
ing and informed him that “since there was only 30 days, . . . if he
wanted Legal Defender[s] to be appointed, we would need to
address that at the time of sentencing . . . to get appointed counsel
within the mandated 30 days and get [counsel] up to speed to file
the appropriate paperwork during the time.” Kabor “didn’t express
any interest in doing an appeal and told [Rich] that he didn’t want
to appeal or he was thinking he didn’t want to appeal.” Rich left
the meeting with a “distinct impression” that Kabor would not
appeal but told Kabor to give him a final decision at sentencing.

¶6 On January 23, just before sentencing, Rich discussed the
possibility of an appeal with Kabor one last time. He again
explained that an attorney could be appointed if Kabor could not
afford to pay private counsel. When Rich asked Kabor if he wanted
to have an attorney appointed to pursue an appeal, Kabor said that
he did not intend to appeal and therefore did not want an attorney
appointed. Following sentencing, Kabor did not say anything to
Rich that indicated that he had changed his mind about appealing.

¶7 The district court found “Rich[’s testimony] to be credible
and the testimony of . . . Kabor not to be credible.” Specifically, the
court found that Rich informed Kabor that he had to file an appeal
within thirty days of sentencing and that Kabor told Rich that he
“did not want to appeal.” Because it found that Kabor did not file
a timely appeal despite being informed by Rich of both his right to
appeal and the time frame in which that right must be exercised,
the court concluded that Kabor had not shown by a preponderance
of the evidence that he had been constitutionally deprived of an
opportunity to appeal. As a result, the court denied Kabor’s motion
to reinstate the time for appeal. Kabor now appeals from the denial
of that motion.

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State v. Kabor

ISSUE AND STANDARDS OF REVIEW

¶8 Kabor contends that the district court wrongly denied his
motion to reinstate the appeal period under rule 4(f) of the Utah
Rules of Appellate Procedure and Manning v. State, 2005 UT 61, 122
P.3d 628. We review the court’s legal conclusion that Kabor was not
unconstitutionally deprived of his right to appeal for correctness
but give deference to its underlying factual findings, meaning that
we will not overturn them unless they are clearly erroneous. See
State v. Hales, 2007 UT 14, ¶ 35, 152 P.3d 321 (explaining that a
claim that the defendant’s due process rights had been violated is
“a mixed question of fact and law that we review de novo for
correctness” while “incorporat[ing] a clearly erroneous standard
for the necessary subsidiary factual determinations” (footnote
citations and internal quotation marks omitted)).

ANALYSIS

¶9 Kabor challenges the district court’s decision on three
grounds. First, he asserts that under Manning and rule 4(f), he was
entitled to reinstatement of his appeal right because the district
court failed to advise him of his right to file an appeal following his
sentencing. Second, he contends that if his counsel’s advice
regarding the appeal right can rectify the court’s failure to advise
him, then that advice must be given on the record. Finally, Kabor
argues that even if counsel’s off‐the‐record statements could
qualify as advice of his right to appeal, those explanations were too
unclear to satisfy the notification requirements. We address each
argument in turn.

I. Kabor Failed To Meet His Burden of Establishing that He Did
Not Knowingly and Voluntarily Waive His Right to Appeal.

¶10 According to Kabor, he is entitled to reinstatement of the
appeal period under the rationale of Manning and rule 4(f) of the
Utah Rules of Appellate Procedure. In Manning, the supreme court

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State v. Kabor

addressed the circumstances under which a defendant may be
unconstitutionally deprived of his or her right to an appeal and the
appropriate process for seeking reinstatement of the right to appeal
after the appeal period has expired. Rule 4(f) “was adopted to
implement the holding and procedure outlined in Manning” for
seeking reinstatement of the appeal period. Utah R. App. P. 4
advisory committee note. The rule, however, sets forth only the
procedure for requesting a reinstatement of the right to appeal and
does not address the circumstances that would justify reinstate‐
ment. Utah R. App. P. 4(f). Accordingly, we apply the analysis
described in Manning to decide whether Kabor’s request was
properly denied.

¶11 A defendant is entitled to reinstatement of his direct appeal
right if he “has been prevented in some meaningful way from
proceeding with a first appeal of right.” Manning, 2005 UT 61, ¶ 26
(citation and internal quotation marks omitted); accord Utah R.
App. P. 4(f). A defendant has not been meaningfully deprived of
his appeal right, however, if he voluntarily waived that right, and
we presume that a defendant has knowingly and voluntarily
waived the right to appeal whenever he fails to file a timely notice
of appeal, see Manning, 2005 UT 61, ¶¶ 35, 1. Accordingly, the
burden is on the defendant to establish, by a preponderance of the
evidence, that he did not waive that right but was “unconstitution‐
ally deprived, through no fault of his own, of his right to appeal.”
Id. ¶¶ 18, 31–32; accord Utah R. App. P. 4(f) (“If the trial court finds
by a preponderance of the evidence that the defendant has
demonstrated that he was deprived of his right to appeal, it shall
enter an order reinstating the time for appeal.”). Manning describes
some of the circumstances that support a defendant’s claim that a
waiver was not knowing or voluntary, including, for example,
where

(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

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State v. Kabor

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.[2]

2005 UT 61, ¶ 31 (citations omitted).

¶12 Kabor asserts that he is entitled to reinstatement under the
third exception because the court failed to advise him of his right
to appeal.3 It is undisputed that the district court failed to notify
Kabor of his appeal right once he had been sentenced, as required
by rule 22(c) of the Utah Rules of Criminal Procedure. See Utah R.
Crim. P. 22(c)(1) (“Following imposition of sentence, the court shall
advise the defendant of defendant’s right to appeal and the time
within which any appeal shall be filed.”). The district court
concluded, however, that despite this, Kabor was appropriately
informed of his right to appeal by trial counsel. We agree.

¶13 It is worth emphasizing at the outset that rule 22(c) man‐
dates that the district court notify a defendant of his appeal right
following the imposition of sentence because it is the most reliable
way to ensure that defendants are made aware of the important
constitutional right to appeal a conviction or sentence. The United

2
Our supreme court has indicated that these three circum‐
stances are “distilled . . . from our case law and a survey of those
relied on in other jurisdictions” but are “not intended to be [the]
exclusive” bases for demonstrating an unconstitutional depriva‐
tion of an appeal right. Manning v. State, 2005 UT 61, ¶ 31 n.11,
122 P.3d 628. Kabor has not asserted any other circumstance that
indicates a deprivation of his constitutional right to appeal.
3
In the district court, Kabor alleged that Rich’s failure to
file an appeal after he was requested to do so was an alternative
basis for reinstatement. Kabor has not pursued that claim on
appeal.

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State v. Kabor

States Supreme Court has identified the benefits of such an
approach:
It will often be the case that, as soon as sentence is
imposed, the defendant will be taken into custody
and transported elsewhere, making it difficult for the
defendant to maintain contact with his attorney. The
relationship between the defendant and the attorney
may also be strained after sentencing, in any event,
because of the defendant’s disappointment over the
outcome of the case or the terms of the sentence. The
attorney, moreover, concentrating on other matters,
may fail to tell the defendant of the right to appeal,
though months later the attorney may think that he
in fact gave the advice because it was standard
practice to do so. In addition, if the defendant is
advised of the right by the judge who imposes
sentence, the defendant will realize that the appeal
may be taken as of right and without affront to the
trial judge, who may later rule upon a motion to
modify or reduce the sentence. Advising the defen‐
dant of his right at sentencing also gives him a clear
opportunity to announce his intention to appeal . . . .

Peguero v. United States, 526 U.S. 23, 26–27 (1999) (citation omitted).

¶14 The court’s “failure to comply with the formal requirements
of the Rule,” however, does not automatically entitle a defendant
to reinstatement of the right to appeal. See id. at 27–28 (citation and
internal quotation marks omitted). Rather, under Manning, the
reinstatement inquiry focuses more broadly on whether the
defendant’s failure to file an appeal was a voluntary and knowing
choice. See Manning v. State, 2005 UT 61, ¶¶ 31–32, 122 P.3d 628.
Thus, evidence that the court failed to advise a defendant of his
appeal right following sentencing undermines the presumption
that his failure to appeal was knowing and voluntary, while
evidence that the defendant was actually made aware of his right
to appeal, despite the court’s oversight, can support a conclusion

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that he was not unconstitutionally deprived of the right to appeal.
See, e.g., Peguero, 526 U.S. at 27–28 (explaining that the petitioner
was not entitled to habeas relief even though the court failed to
notify him of his right to appeal because his own testimony showed
that he had actual knowledge of the right prior to the expiration of
the appeal period and the petitioner did not identify any other
resulting prejudice); Johnson v. State, 2006 UT 21, ¶ 26, 134 P.3d
1133 (remanding for consideration of whether the defendant was
unconstitutionally deprived of his right to appeal where the
defendant was not present at trial or sentencing and “nothing in
the record before [the supreme court] indicate[d] whether Johnson
was otherwise notified of his right to appeal”); Hauck v. State, 2007
WY 113, ¶ 10, 162 P.3d 512 (concluding, in the context of determin‐
ing whether the defendant’s petition for postconviction relief was
procedurally barred for failing to raise the claims on direct appeal,
that the defendant had been deprived of his constitutional right to
appeal because the court failed to advise him of that right and the
“record does not otherwise reflect that [the defendant] knew of his
right to appeal” his conviction).

¶15 In this case, the evidence the district court found credible
indicated that Kabor’s attorney, Bradley Rich, discussed an appeal
with him on several occasions and, in the course of those discus‐
sions, made him aware of both his right to appeal and the time
frame in which that right must be exercised. In addition, Rich
advised Kabor that he would need to make a decision by the time
of sentencing so that Rich could request the appointment of a
public defender, if necessary, to pursue the appeal. During these
discussions, Kabor either expressed no interest in filing an appeal
or indicated his intent not to appeal, and he never asked Rich to
request that the court appoint appellate counsel to represent him.
Based on this testimony, the district court determined that Kabor
failed to overcome the Manning presumption that his failure to file
was knowing and voluntary both because he had actual knowledge
of the right to appeal and the time period for doing so and because
he indicated no interest in an appeal in the course of pertinent
discussions with his attorney, affirmatively stating that he did not

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want to appeal during counsel’s last discussion with him just
before sentencing. See generally Peguero, 526 U.S. at 28 (explaining
that where “petitioner had full knowledge of his right to appeal, . . .
the District Court’s . . . fail[ure] to inform him of that right did not
prejudice him”). The district court further concluded that none of
the circumstances identified in Manning as indications of an
involuntary waiver were present.

¶16 Kabor argues, however, that the court’s failure to advise him
of his appeal right fell within the third exception—“the court or the
defendant’s attorney failed to properly advise defendant of the
right to appeal,” Manning, 2005 UT 61, ¶ 31. In support of his
argument, Kabor relies on a single sentence in Manning, in which
the supreme court states, “[T]he court’s failure to comply with rule
22(c) may well qualify for the third exception where a defendant
claimed that his right to appeal his sentence has been denied.” Id.
¶ 41. We recognize that the supreme court’s statement, in isolation,
leaves open the possibility that the district court’s failure alone
might, in some circumstances, be enough to demonstrate unconsti‐
tutional deprivation. The supreme court, however, couched the
exception itself in the alternative, i.e., the failure of “the court or the
defendant’s attorney . . . to properly advise defendant of the right
to appeal.” Id. ¶ 31 (emphasis added). The word “or” strongly
suggests that if either the court or defense counsel provided the
advice regarding appeal, then there is no constitutional depriva‐
tion. Cf. Calhoun v. State Farm Mut. Auto Ins. Co., 2004 UT 56, ¶ 20,
96 P.3d 916 (“The legislature’s separation of these two [statutory]
sections by the disjunctive ‘or’ as opposed to the conjunctive ‘and’
clearly mandates that a policy need only provide owner’s coverage
or operator’s coverage—not both.”).

¶17 This interpretation comports with the supreme court’s own
explanation of the application of the third exception: “The third
exception applies where the court and the defendant’s attorney
have failed to provide the defendant with notice of the right to
appeal.” Manning, 2005 UT 61, ¶ 40 (emphasis added). In the
context of this explanation of the scope of the exception, the

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State v. Kabor

supreme court’s statement that “the [sentencing] court’s failure to
comply with rule 22(c) may well qualify for the third exception,”
id. ¶ 41, is not inconsistent with its instruction that the third
exception applies only when “the court and the defendant’s
attorney have failed to provide” the defendant with notice of the
right to appeal, id. ¶ 40 (emphasis added). For, under Manning, the
crux of the reinstatement inquiry is whether the defendant was
unconstitutionally deprived of his right to appeal. If the court fails
to notify the defendant and it appears that he was not otherwise
informed, then “the court’s failure to comply with rule 22(c) may
well qualify for the third exception.” Id. ¶ 41. But when it is
apparent that the defendant was actually aware of his right to
appeal because he was advised by his counsel—as was the case
here—the third exception does not apply. Moreover, the district
court found that Kabor told Rich that he did not want to appeal, a
circumstance that strongly supports the conclusion that the
sentencing court’s failure to notify Kabor that he could appeal did
not deprive him of a constitutional right.

II. There Is No Requirement that Counsel’s Advice Be On the
Record.

¶18 Kabor next asserts that there is “no record evidence” that
Rich informed him of the right to appeal. According to Kabor, Rich
had to inform him on the record of the right to appeal, and in the
absence of such an on‐the‐record communication, he urges us to
assume that no notification occurred because appellate courts
generally indulge a presumption against waiver of a constitutional
right. (Citing Manning, 2005 UT 61, ¶ 35.) Kabor cites City of Seattle
v. Braggs, 705 P.2d 303 (Wash. Ct. App. 1985), in support of his
contention. There, the Washington Court of Appeals stated that
“compelling or extraordinary circumstances” would justify
extending the time to appeal and that where the record does not
“clearly indicate that the trial court advised the defendant . . . of the
right to appeal a conviction as well as the time and method for
commencing an appeal,” such compelling circumstances will be
found. Id. at 305–06. Braggs, however, does not address the issue

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State v. Kabor

asserted by Kabor—that substitute notice must be on the re‐
cord—but instead adopts the position rejected by our supreme
court in Manning—that the court’s failure to advise a defendant of
his right to appeal, without more, automatically entitles him to
reinstatement of the appeal period.

¶19 Kabor does not provide any other legal authority for his
contention that the notice by counsel must be on the record. Rather,
his arguments identify policy reasons as a basis for adopting such
a rule. For example, Kabor cites the concern noted in Peguero v.
United States, 526 U.S. 23 (1999), that counsel may not actually have
informed a defendant of the right to appeal, even though counsel
believes that he or she did so because that was the usual practice.
See id. at 26–27. He also identifies a concern that counsel’s explana‐
tion of the appeal right and process may not be as thorough as the
court’s advice and that the contents of such explanation are not
independently verifiable. But the Utah Supreme Court did not
identify in Manning any “on the record” requirement for determin‐
ing whether a defendant has been unconstitutionally deprived of
his appeal right, 2005 UT 61, ¶¶ 31, 35–41, nor did it include any
such requirement in rule 4(f), Utah R. App. P. 4(f). To the contrary,
Manning expressly refers to an evidentiary hearing as one means
for determining whether a defendant has been deprived of his or
her right to appeal. 2005, UT 61, ¶ 31. We therefore reject Kabor’s
contention that Rich’s advice could not appropriately inform him
of his right to appeal simply because it was off the record.

III. Counsel’s Explanations Were Not Unduly Confusing or
Unclear.

¶20 Kabor also claims, apparently in the alternative, that Rich’s
explanations of the right to appeal were too confusing and unclear
to comply with the requirements of due process. In particular,
Kabor argues that Rich’s piecemeal explanation of the appeal
process, when considered in the context of his relative youth and
the emotional burden of facing the possibility of spending the rest
of his life in prison, supports an inference that he could not be

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State v. Kabor

expected to fully comprehend Rich’s explanation of the right to
appeal. But the rule itself requires that the district court “advise the
defendant of defendant’s right to appeal and the time within which
any appeal shall be filed” right after imposition of sentence, Utah
R. Crim. P. 22(c), and Kabor has not explained how the emotional
burden on a defendant would be materially different in those
circumstances than in the context of a similar explanation by
counsel just before sentencing or in the weeks leading up to
sentencing. Indeed, the potential for emotional distraction might
well be greater following announcement of sentence. Further, the
rule itself makes no distinction based on relative age. As the State
points out, Rich’s explanations conveyed the realities of serving a
prison sentence and impressed upon Kabor the urgency to make a
decision about an appeal by the time of sentencing. He did this by
explaining the appeal process early and often and repeatedly
gauging Kabor’s receptiveness to pursuing an appeal. Accordingly,
we also reject Kabor’s contention that Rich’s explanations were too
unclear or complicated to constitute adequate notice.

CONCLUSION

¶21 Utah law presumes that a defendant who fails to file a
timely appeal has knowingly and voluntarily waived his right to
appeal. The district court found that Kabor’s attorney adequately
advised him of his right to appeal even though the court failed to
do so. Kabor has not convinced us that counsel’s advice was
inadequate because the notification was not on the record or
because it was unclear or confusing. In addition, the court found
that Kabor had affirmatively stated to his attorney that he did not
intend to appeal his convictions. Kabor has therefore failed to carry
his burden to overcome the presumption that his failure to timely
file a notice of appeal was the result of a knowing and voluntary
waiver of his right to appeal. In this regard, the district court did
not err in concluding that Kabor was not unconstitutionally
deprived of his right to appeal when he was notified of that right
by his trial counsel but not by the district court. We therefore

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uphold the denial of Kabor’s motion to reinstate the time for
appeal.

¶22 Affirmed.

____________________

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