Socolov v. State

2022 UT App 40

THE UTAH COURT OF APPEALS

OLEG SOCOLOV,
Appellant,
v.
STATE OF UTAH,
Appellee.

Per Curiam Opinion
No. 20210724-CA
Filed March 31, 2022

Fifth District Court, Cedar City Department
The Honorable Matthew L. Bell
No. 210500028

Oleg Socolov, Appellant Pro Se

Before JUDGES MICHELE M. CHRISTIANSEN FORSTER, DAVID N.
MORTENSEN, and RYAN M. HARRIS.

PER CURIAM:

¶1 Oleg Socolov appeals the dismissal of his petition filed
under the Post-Conviction Remedies Act (PCRA). We affirm.

¶2 We review an appeal from an order summarily
dismissing or denying post-conviction relief for correctness
without deference to the lower court’s conclusions of law. See
Bevan v. State, 2021 UT App 107, ¶ 7, 499 P.3d 191.

BACKGROUND

¶3 Socolov was convicted after a bench trial of misdemeanor
offenses of assault (domestic violence); domestic violence in
front of a child; threat of violence; disorderly conduct; and
intoxication. The district court entered the judgment and
Socolov v. State

sentence on February 27, 2020. Shortly after sentencing, Socolov
was removed to a federal facility in Nevada pending deportation
proceedings. After his conviction, Socolov filed pro se motions
that sought reconsideration of a protective order, but he did not
file a timely direct appeal.

¶4 Socolov filed a PCRA petition and two amended
petitions. He first claimed that his trial counsel rendered
ineffective assistance by failing to appeal his convictions and to
properly advise him of the right to appeal. His remaining
claims evolved over the two amended petitions to encompass
claims of error by the district court and additional
ineffectiveness claims asserting that trial counsel failed to
present relevant evidence, to impeach the testimony of
the victim, to assert that Socolov acted in self-defense, and
to pursue a claim that Socolov had diminished capacity
because he was a battered spouse. Socolov claimed that he
was entrapped by the victim, who fabricated claims of
domestic violence to place his immigration status in jeopardy.
He also raised the “possibility” of his factual innocence of
the crimes. In his first amended petition, he added claims
of prosecutorial misconduct and claims that he had
obtained new evidence about the victim’s motivation and
fabrication of allegations. A second amended petition elaborated
on his claims.

¶5 The district court issued an order to show cause
providing Socolov with notice and an opportunity to
demonstrate why the claims made in his petition were not
precluded under the PCRA. See Utah Code § 78B-9-
106(2)(b)(West 2022) (“Any court may raise a procedural bar or
time bar on its own motion, provided that it gives the parties
notice and an opportunity to be heard.”) In a written response,
Socolov argued his claims should not be procedurally barred
because his failure to file an appeal resulted from ineffective

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Socolov v. State

assistance of trial counsel, whom he alleged had failed to
properly advise him of the right to appeal. 1

¶6 The district court dismissed the PCRA petition, ruling
that the first claim—that Socolov was denied the right to appeal
because his trial counsel failed to properly inform him of his
appeal rights—was not within the scope of the PCRA and
instead must be raised in a motion to reinstate the appeal time
under rule 4(f) of the Utah Rules of Appellate Procedure. The
district court concluded that the remaining claims for relief from
the conviction (characterized by the court as prosecutorial
misconduct, entrapment, evidentiary issues at trial, and
counsel’s failure to assert diminished capacity as a defense) were
procedurally barred because either the claims “may still be
raised on direct appeal,” see id. § 78B-9-106(1)(a), or the claims
“could have been but [were] not raised at trial, or on appeal,” see
id. § 78B-9-106(1)(c). The district court also reasoned that because
Socolov “has not yet filed a motion under rule 4(f), he has failed
to fully exhaust his legal remedies before pursuing post-
conviction relief.” See id. § 78B-9-102(1) (stating that the PCRA
“establishes the sole remedy for any person who has exhausted
all other legal remedies, including a direct appeal”). Finally, the
district court ruled that a claim of factual innocence must be filed
under the separate provisions beginning at Utah Code section
78B-9-401, and could not be combined with Socolov’s other
challenges to his convictions. See id. § 78B-9-104(3) (stating that
claims under Part 4, Postconviction Determination of Factual
Innocence, may not be filed as part of a PCRA petition under
Part 1, but shall be filed separately and in conformity with the
provisions of Part 4).

1. The State, represented by the Iron County Attorney, was given
an opportunity to reply to Socolov’s response but did not do so.

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Socolov v. State

ANALYSIS

¶7 Utah Code section 78B-9-106(1) provides, in relevant part,
that a petitioner is not eligible for relief upon any ground that
“(a) may still be raised on direct appeal or by a post-trial
motion” or “(c) could have been but was not raised in the trial
court, at trial, or on appeal.” Subsection (3)(a) states,
“Notwithstanding Subsection (1)(c), a petitioner may be eligible
for relief on a basis that the ground could have been but was not
raised in the trial court, at trial, or on appeal, if the failure to
raise that ground was due to ineffective assistance of counsel.”
Socolov claimed that he did not file a direct appeal because he
was not properly advised of the right to appeal and that this
same alleged failure to advise him also constitutes ineffective
assistance of counsel that prevents preclusion of his claims
under section 78B-9-106(1)(c) because it was counsel’s deficient
performance that caused his failure to raise the claims on appeal.

¶8 The remedy for a defendant who is denied the right to
appeal through no fault of his own is codified in rule 4(f) of the
Utah Rules of Appellate Procedure, which states,

Upon a showing that a criminal defendant was
deprived of the right to appeal, the trial court shall
reinstate the thirty-day period for filing a direct
appeal. A defendant seeking such reinstatement
shall file a written motion in the sentencing court
and serve the prosecuting entity. If the defendant is
not represented and is indigent, the court shall
appoint counsel. The prosecutor shall have 30 days
after service of the motion to file a written
response. If the prosecutor opposes the motion, the
trial court shall set a hearing at which the parties
may present evidence. If the trial court finds by a
preponderance of the evidence that the defendant
has demonstrated that the defendant was deprived

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Socolov v. State

of the right to appeal, it shall enter an order
reinstating the time for appeal. The defendant's
notice of appeal must be filed with the clerk of the
trial court within 30 days after the date of entry of
the order.

¶9 Socolov asserts that the one-year limitation on a motion to
reinstate the appeal time in a civil case under the analogous rule
4(g) would also apply to a criminal case. This is not supported
by the plain language of rule 4(f), which currently omits any
time limitation. 2 See Ralphs v. McClellan, 2014 UT 36, ¶ 24, 337
P.3d 230 (noting that rule 4(f) does not include “any time
limitation on a motion to reinstate an appeal.”). “In reserving the
right of a defendant to move to reinstate an appeal that is lost by
no fault of the defendant, rule 4(f) reserved a right of continuing
jurisdiction of the court in which a conviction is entered and a
sentence is rendered.” Id.

¶10 “The point of [rule] 4(f) . . . is to provide criminal
defendants who have been deprived of an appeal through no
fault of their own with an avenue for relief.” Brown v. State, 2021
UT 11, ¶ 16, 489 P.3d 152. Rule 4(f) codified the procedure for
reinstatement of an appeal and supplanted the remedy for
reinstatement of the appeal time previously provided by
Manning v. State, 2005 UT 61, 122 P.3d 628. See id. ¶ 13. However,
the factors from Manning continue to “inform the discussion of
what rule 4(f) means by deprived of the right to appeal.” Id. ¶ 16.
Manning “explained that criminal defendants were entitled to
have their appeal rights reinstated where they demonstrate that
they had lost their appeal rights because (1) counsel failed to file

2. A proposed amendment to rule 4(f) of the Utah Rules of
Appellate Procedure is being considered and, if adopted, would
implement a one-year time limitation for a motion seeking to
reinstate the time for appeal in a criminal case.

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Socolov v. State

an appeal after agreeing to do so; (2) despite diligently
attempting to file a timely appeal, the defendant was unable to
do so through no fault of their own; or (3) the court or the
defendant’s counsel failed to properly advise them of the right to
appeal.” Id. (cleaned up); see also Ralphs, 2014 UT 36, ¶ 30
(differentiating the remedy of reinstatement of appeal time
under rule 4(f) from the relief that would be available under the
PCRA, which has no application to the right to appeal).

¶11 Socolov claimed in his PCRA petition that he was not
properly advised by trial counsel of his right to appeal.
However, Socolov made the same factual claims that would be
considered in rule 4(f) proceedings as support for an assertion
that the remaining claims in the PCRA petition are not subject to
preclusion under section 78B-9-106(1)(c), because the alleged
failure to advise him of his appeal rights constituted ineffective
assistance of counsel that resulted in failure to raise the claims
on direct appeal. We agree with the district court that Socolov’s
remedy for the alleged failure to advise him of his appeal rights
is a motion under rule 4(f). If Socolov obtains reinstatement of
the appeal time, his remaining claims can be asserted in a direct
appeal. If the claims raised in the PCRA petition may still be
raised on direct appeal, Socolov is not eligible for post-
conviction relief on those claims under the preclusion provision
of section 78B-9-106(1)(a). If Socolov cannot demonstrate that he
is entitled to reinstatement of the appeal time, the claims raised
in his PCRA petition are properly precluded under section 78B-
9-106(1)(c) as claims that could have been but were not raised in
the trial court or on appeal.

¶12 Alternatively, the district court ruled that Socolov was not
entitled to relief under the PCRA because he did not exhaust his
available legal remedy of filing a rule 4(f) motion seeking to
reinstate the time for direct appeal. Utah Code section 78B-9-
102(1)(a) states that “[t]his chapter establishes the sole remedy
for any person who challenges a conviction or sentence for a

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Socolov v. State

criminal offense and who has exhausted all other legal remedies,
including a direct appeal.” See also Lucero v. Kennard, 2005 UT 79,
¶ 36, 125 P.3d 917 (“To be eligible for post-conviction relief,
defendants have consistently been required to appeal error
through regular and prescribed proceedings in order to prevent
extraordinary relief from being used as a substitute for normal
appellate procedures.” (cleaned up)). The same alleged facts that
Socolov claimed should allow him to avoid preclusion of his
claims for failure to raise them on direct appeal—that his trial
counsel failed to properly advise him of the right to appeal—
would be presented to the sentencing court in an appropriate
rule 4(f) motion served on the prosecutor. If the motion is
opposed, the alleged facts will be evaluated by the sentencing
court after an evidentiary hearing to determine whether Socolov
has demonstrated by a preponderance of the evidence that he
was deprived of the right to appeal. See Utah R. App. P. 4(f); see
also State v. Collins, 2014 UT 61, ¶ 36, 342 P.3d 789 (concluding
that harmless error analysis applies to claims seeking
reinstatement of appeal time). Accordingly, the district court
correctly determined that Socolov must exhaust the remedy
available to him under rule 4(f) for reinstatement of the time for
direct appeal before seeking relief under the PCRA.

¶13 We therefore affirm the dismissal of Socolov’s petition for
post-conviction relief.

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