State v. McNair

2019 UT App 26
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
EUGENE S TEVEN M CNAIR ,
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 M ICHELE M. C HRISTIANSEN F ORSTER authored this Opinion,
in which J UDGES D AVID N. M ORTENSEN and DIANA H AGEN
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
20170504-CA 	2 	2019 UT App 26
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.

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

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

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

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

State v. McNair
20170504-CA 	7 	2019 UT App 26
¶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.