State v. McNair

2019 UT App 26

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
EUGENE STEVEN MCNAIR,
Appellant.

Opinion
No. 20170504-CA
Filed February 22, 2019

Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 061903216

Ann M. Taliaferro, Attorney for Appellant
Sean D. Reyes and Erin Riley, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES DAVID N. MORTENSEN and DIANA HAGEN
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Eugene Steven McNair pleaded guilty to rape, was
sentenced to prison, and did not appeal his conviction or
sentence. Nearly a decade later, McNair filed a motion to have
the time to file his direct appeal reinstated. The district court
concluded that McNair failed to establish that he was prevented
in any meaningful way from commencing a timely appeal after
he was sentenced. He appeals that decision, and we affirm.

BACKGROUND

¶2 In 2006, the State charged McNair with rape, forcible
sodomy, and forcible sexual abuse. In November of that year,
State v. McNair

shortly before trial was scheduled to begin, McNair and the State
entered into a plea agreement. That is, McNair agreed to plead
guilty to rape and, in exchange, the State agreed to dismiss the
two remaining charges.

¶3 In support of the plea agreement, McNair signed a plea
statement indicating he understood and acknowledged having
been advised of the facts and the rights set forth in that
statement. In the signed document, McNair admitted to having
sex with the victim without the victim’s consent and that his
actions constituted rape. McNair accepted that, by pleading
guilty, his right to a direct appeal would be limited and that he
understood that an appeal of the sentence needed to be filed
within thirty days after entry of his sentence. Further, McNair
stated that he entered the plea voluntarily and “of [his] own free
will and choice.”

¶4 At the change-of-plea hearing, the district court asked
McNair’s defense counsel if he had “discussed [the change of
plea]” and “gone over the statement of defendant” with
McNair. Defense counsel responded that he had done both.
Counsel also stated, “McNair does not read, but I did read the
document to him. We covered it twice, once . . . yesterday and
once today.” Defense counsel then affirmed that he was satisfied
that McNair understood the meaning and effect of the guilty
plea.

¶5 The court asked McNair directly whether he understood
“what is being proposed here,” and McNair responded, “Yes.”
McNair further affirmed that he discussed the plea agreement
with his counsel and that defense counsel had gone over the
written plea statement with him. Finally, McNair acknowledged
that defense counsel had read the written plea statement to him
and that McNair understood its terms. The court accepted
McNair’s guilty plea to rape, finding that he entered the plea
knowingly, voluntarily, and of his own free will.

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State v. McNair

¶6 In January 2007, the court sentenced McNair to five
years to life in prison. After imposing the sentence, the court
did not again advise McNair of his right to appeal or the time
limit in which to file such an appeal. See Utah R. Crim. P.
22(c)(1).

¶7 In 2016, McNair filed a motion requesting reinstatement
of his time to file a direct appeal. 1 The district court denied
McNair’s motion and he appeals.

ISSUE AND STANDARDS OF REVIEW

¶8 McNair contends the district court erred when it
denied his motion to reinstate the time to file a direct appeal. We
review for correctness the district court’s legal conclusion
that McNair was not unconstitutionally deprived of his right to
appeal. See State v. Kabor, 2013 UT App 12, ¶ 8, 295 P.3d 193.
But we “give deference to its underlying factual findings,” and
will not overturn them absent clear error. Id.

ANALYSIS

¶9 Rule 4(f) of the Utah Rules of Appellate Procedure
allows a defendant who has been unconstitutionally deprived of
the right to appeal to have his appellate rights reinstated. “If
the trial court finds by a preponderance of the evidence that the
defendant has demonstrated that the defendant was deprived of
the right to appeal, it shall enter an order reinstating the time for

1. In his motion McNair also requested, in the alternative, that
the court correct an illegal sentence. See Utah R. Crim. P. 22(e).
McNair does not appeal the district court’s decision on his
illegal-sentence argument.

20170504-CA 3 2019 UT App 26
State v. McNair

appeal.” Utah R. App. P. 4(f). Such a remedy may be appropriate
in situations 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 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.

Manning v. State, 2005 UT 61, ¶ 31, 122 P.3d 628 (citations
omitted). McNair argues that Manning’s third scenario applies
here. He contends that he was not properly advised by his
counsel or the court of his right to appeal. 2 See id.

2. McNair makes two other related arguments. He contends that
relief should be available under circumstances—not otherwise
enumerated in Manning v. State, 2005 UT 61, 122 P.3d 628—
“where, as here, a defendant seeks advice and counsel from his
attorney, but is unable to obtain that advice due to trial counsel’s
complete unwillingness to further communicate with the client.”
He also argues that, due to intellectual disabilities, he could not
file a timely notice of appeal. Neither of these situations fit into
the three enumerated Manning scenarios. See id. ¶ 31. More to the
point, McNair’s claimed circumstances do not establish that he
had been “prevented in some meaningful way from proceeding”
with an appeal within thirty days of his sentencing, so we
decline to extend the reach of Manning to encompass the more
general circumstances he alleges here. See id. ¶ 26; see also State v.
Collins, 2014 UT 61, ¶ 31, 342 P.3d 789 (observing that the “use of
the term ‘deprived’” in Manning “was crucial because the word
encompasses a narrow range of situations where a defendant
would have appealed, but had that right taken away or was kept
(continued…)

20170504-CA 4 2019 UT App 26
State v. McNair

¶10 As our supreme court has explained, a defendant who
relies on the third Manning scenario “must show: (1) that neither
the court nor counsel properly advised [him] of [his] right to
appeal, and (2) that ‘but for’ this failure [he] would have filed an
appeal.” State v. Collins, 2014 UT 61, ¶ 29, 342 P.3d 789 (emphasis
added). 3

(…continued)
from the possession, enjoyment, or use of that right” (quotation
simplified)); State v. Nicholls, 2017 UT App 60, ¶ 52, 397 P.3d 709
(stating in dicta that, where “trial counsel promised their
assistance on the direct appeal, but after sentencing, went dark,”
this allegation “could broadly encompass Manning relief
directed at a sentencing appeal” (quotation simplified)). While
McNair’s intellectual disabilities do not bring him under
Manning for purposes of a direct appeal, we note that the Post-
Conviction Remedies Act (the PCRA) accounts for incapacity-
related delays in filing a PCRA petition and may toll the
limitations period during a petitioner’s incapacity. See Utah
Code Ann. § 78B-9-107(3) (LexisNexis Supp. 2018).

3. McNair has the burden of establishing, by a preponderance of
the evidence, that any error in advising him of his right to appeal
was prejudicial. See Collins, 2014 UT 61, ¶ 29. That is, he must
show both that he was not properly advised of his right to
appeal and that “‘but for’ this failure [he] would have filed an
appeal.” Id. The parties here acknowledge that neither the
sentencing court nor counsel advised McNair, at sentencing, of
his right to an appeal and the time limit in which to file. The
State argues, however, that McNair was properly advised of the
right to appeal in the earlier plea statement that McNair signed
and acknowledged he understood. Because we conclude that
McNair has not carried his burden of establishing prejudice as a
result of any alleged error, we do not analyze whether the court
(continued…)

20170504-CA 5 2019 UT App 26
State v. McNair

¶11 McNair has not established prejudice resulting from any
failure of the court or counsel to advise him properly of the right
to appeal. That is, he has not shown that but for any failure to
properly advise him of his right to appeal, he would have
commenced an appeal. See id. When it denied McNair’s motion
to reinstate the time to file a direct appeal based upon the facts in
the record, the district court concluded that McNair failed to
present any evidence that he would have appealed “but for” any
error. The court observed that McNair had not alleged nor
demonstrated that he would have appealed his sentence had he
been properly informed of his right to appeal. Defendant
therefore failed to “establish that something outside of his
control prevented him in some meaningful way from
proceeding” to file an appeal. Id. ¶ 28 (quotation simplified).

¶12 In this appeal, as below, McNair does not direct us to any
evidence to show that he would have filed an appeal from his
sentence in 2007 had he been informed of his right to appeal at
sentencing. Instead, he contends that, after sentencing, he
“didn’t know what to do.” McNair also asserts that after his
sentencing he and his family sought “answers to questions”
from defense counsel, but counsel would not speak to him or
them. These vague assertions, without more, do not establish
that McNair would have timely appealed his sentence had he
been informed properly of his right to do so.

(…continued)
and counsel, under the circumstances here, failed to properly
advise him of his right to appeal. See id. We emphasize, however,
that following the imposition of a sentence our rules require the
district court to complete the relatively easy task of advising “the
defendant of defendant’s right to appeal, the time within which
any appeal shall be filed and the right to retain counsel or have
counsel appointed by the court if indigent.” Utah R. Crim.
P. 22(c)(1).

20170504-CA 6 2019 UT App 26
State v. McNair

¶13 Further, McNair has not established that he—or others on
his behalf—attempted to contact McNair’s defense counsel in
time to proceed with a timely appeal. Indeed, McNair does not
point to any evidence in the record to demonstrate the dates or
even the general timeframe he attempted to contact his defense
counsel after sentencing. Additionally, McNair has not
supported his argument with any record evidence to show that
his disability or his attorney’s “going dark” effectively prevented
him from proceeding with a timely appeal. See Manning, 2005 UT
61, ¶ 1 (“[C]riminal defendants who fail to file a notice of appeal
within the required time period are presumed to have
knowingly and voluntarily waived this right and thus have the
burden to prove otherwise by establishing that one of the
exceptions defined in this case applies.”). Consequently, we are
not persuaded that the district court erred when it denied his
motion to reinstate the time to file a direct appeal.

CONCLUSION

¶14 McNair has not established that he was prejudiced by any
failure of the court or his counsel to properly inform him of his
right to file a direct appeal. Because McNair fails to meet this
burden, we affirm the district court’s denial of his motion to
reinstate the time to file an appeal.

20170504-CA 7 2019 UT App 26