State v. Collins , 2014 UT 61 ( 2014 )


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  •                    This opinion is subject to revision before final
                            publication in the Pacific Reporter
    
                                       
    2014 UT 61
    
    
                                          IN THE
    
              SUPREME COURT OF THE STATE OF UTAH
    
                                    STATE OF UTAH,
                                      Petitioner,
                                             v.
                                   ROBERT COLLINS,
                                     Respondent.
    
                                    No. 20130384
                                  December 30, 2014
    
                           Third District, Salt Lake
                      The Honorable Judith S.H. Atherton
                               No. 051905843
    
                                       Attorneys:
                 Samuel P. Newton, Kalispell, MT, for petitioner
           Sean D. Reyes, Att‟y Gen., John J. Nielsen, Asst. Att‟y Gen.,
                         Salt Lake City, for respondent
    
     CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
             JUSTICE DURHAM, JUSTICE PARRISH, and JUSTICE LEE joined.
           ASSOCIATE CHIEF JUSTICE NEHRING filed a dissenting opinion.
    
       CHIEF JUSTICE DURRANT, opinion of the Court:
                                     Introduction
       ¶1 In this case we are asked to clarify the nature of a
    defendant‟s burden of proof in seeking reinstatement of the right to
    appeal. Here, defendant Robert Collins failed to appeal his
    convictions within the thirty-day deadline for filing a notice of
    appeal. Approximately two years after the deadline, he filed a
    motion for reinstatement of his right to appeal and argued that our
    decision in Manning v. State1 and rule 4(f) of the Utah Rules of
    
    
       1   
    2005 UT 61
    , 
    122 P.3d 628
    .
                               STATE v. COLLINS
                            Opinion of the Court
    Appellate Procedure required the court to reinstate his appeal
    because neither his counsel nor the trial court informed him of the
    relevant thirty-day deadline. The trial court denied his motion for
    reinstatement. But the Utah Court of Appeals reversed and held that
    Mr. Collins was deprived of his right to appeal because he was not
    properly informed of the thirty-day filing deadline.
        ¶2 We reverse the court of appeals‟ decision because the court
    erred by declining to apply harmless error analysis. Claims for
    reinstatement of the right to appeal are subject to harmless error
    review. Consequently, where a defendant seeks reinstatement on the
    basis that he was not properly advised of the right to appeal, as is the
    case here, he cannot rely solely on that fact. Rather, he must show by
    a preponderance of the evidence that he was not properly advised of
    the right to appeal and that had he been properly advised he would
    have filed an appeal.
       ¶3 Accordingly, we remand the case to the trial court to
    consider whether Mr. Collins has met his burden of showing that he
    would have filed an appeal had he known of the thirty-day deadline.
    The trial court may exercise its discretion in deciding whether to
    hold further hearings on the issue or, instead, to rely on the existing
    record.
                                 Background
       ¶4 In October 2006, a jury found Mr. Collins guilty of one count
    of murder and two counts of aggravated robbery. Mr. Collins‟s
    counsel, Clayton Simms, then consulted with Mr. Collins in his
    holding cell and told him that he thought there were some
    “appealable issues.” Mr. Simms also encouraged Mr. Collins to
    appeal the jury verdict. Mr. Collins expressed dissatisfaction with
    the guilty verdict but responded to Mr. Simms‟s suggestion of filing
    an appeal by saying, “I don‟t want to appeal. I accept that.”
        ¶5 The trial court sentenced Mr. Collins in January 2007 to
    three consecutive terms of ten years to life in prison. At that time, the
    trial court failed to comply with rule 22(c)(1) of the Utah Rules of
    Criminal Procedure by not informing Mr. Collins of his right to
    appeal and of the thirty-day deadline for filing a notice of appeal
    imposed by rule 4(a) of the Utah Rules of Appellate Procedure.2 But
    
    
       2Rule 22(c)(1) of the Utah Rules of Criminal Procedure requires,
    in part, that “[f]ollowing 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.”
    
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    immediately after sentencing, Mr. Simms again advised Mr. Collins
    that he could file an appeal and encouraged him to do so.
    Mr. Collins maintained that he did not want to appeal. Mr. Simms
    responded by telling Mr. Collins to let him know within two weeks
    if he changed his mind. Mr. Collins did not contact Mr. Simms
    within the next two weeks.
        ¶6 Over two years later, on January 27, 2009, Mr. Collins sent
    the trial court a letter claiming that “[Mr.] Simms informed me he
    would file an appeal to this conviction.” Mr. Collins stated that
    “since it‟s been so long I asked someone to call the Utah Court of
    Appeals and was informed my attorney never filed it.” The trial
    court sent Mr. Simms a copy of the letter. Mr. Simms later testified
    that the letter was the first time Mr. Collins ever indicated he wanted
    to appeal. Mr. Simms wrote back to Mr. Collins and stated that
    “[t]here is no appeal. You didn‟t request one.”
        ¶7 After being appointed new counsel, Mr. Collins filed a
    motion seeking reinstatement of his right to appeal pursuant to rule
    4(f) of the Utah Rules of Appellate Procedure and our decision in
    Manning v. State.3 He supported his motion on two alternative
    grounds. First, he argued that Mr. Simms failed to file an appeal
    after being expressly told to do so. Second, he argued that neither the
    trial court nor Mr. Simms properly advised him of the thirty-day
    deadline for filing a notice of appeal.
        ¶8 The trial court held a hearing on Mr. Collins‟s reinstatement
    motion, eliciting testimony from four witnesses, including:
    (1) Mr. Simms, (2) Elissa Duckworth, a systems administrator over
    the inmate telephone system at the prison, (3) Sylvia Collins,
    Mr. Collins‟s sister, and (4) Mr. Collins.
       ¶9 Mr. Simms recounted that he twice asked Mr. Collins
    whether he wanted to appeal and each time he said no. He testified
    that he told Mr. Collins that he needed to know within two weeks if
    Mr. Collins changed his mind and wanted to file an appeal. He
    acknowledged that this advice was not technically correct, but noted
    that it is his standard practice to tell clients they need to let him
    know within two weeks whether they want to appeal to avoid
    having them “call on the 30th day and ask for an appeal.”
        ¶10 Ms. Duckworth‟s testimony focused on Mr. Collins‟s prison
    telephone log. She testified that the call log showed that Mr. Collins
    
    
       3   
    2005 UT 61
    , 
    122 P.3d 628
    .
    
                                       3
                               STATE v. COLLINS
                             Opinion of the Court
    made 385 phone calls between January 2007 and January 2008. None
    of those calls was to Mr. Simms.
        ¶11 Next, Ms. Collins testified that she received numerous
    letters from Mr. Collins while he was in prison and believed, based
    on those letters, that his case would be appealed.
        ¶12 Mr. Collins testified last. He testified that he asked
    Mr. Simms to file an appeal both after receiving the jury‟s verdict
    and soon after sentencing. Somewhat inconsistently, however, he
    also stated that he thought Mr. Simms would automatically file an
    appeal. His testimony is also unclear regarding when he learned that
    his convictions had not been appealed. He suggested that he became
    concerned about his appeal sometime during May 2007 after he
    called the Salt Lake Legal Defender Association‟s office seeking to
    talk to Mr. Simms about the appeal but was told that Mr. Simms did
    not work at that office. But he also suggested that he first became
    concerned about the status of his appeal approximately eight months
    after sentencing, in September 2007.
         ¶13 Mr. Collins further testified that he had no knowledge of the
    thirty-day deadline for filing an appeal. According to him, he only
    became aware of the thirty-day deadline for filing an appeal in
    approximately October 2008, after talking to another inmate. He
    asserted that had he known of the deadline, he “would have been on
    it right away, writing letters to whoever [he] had to or making phone
    calls or whatever.” When asked specifically if he would have done
    anything differently had he known of the thirty-day deadline,
    Mr. Collins responded that he “would have contacted Mr. Simms
    and made sure he filed [the] appeal like [he] thought [Mr. Simms]
    did.”
         ¶14 When questioned on direct examination about why he
    waited almost two years after his convictions to begin seeking
    updates on the status of his appeal from the court, Mr. Collins
    explained that he “heard that appeals take awhile” and “didn‟t know
    . . . if it was still being processed or if it ever even got filed.” The
    State cross-examined Mr. Collins regarding his claim that he
    attempted to call the Salt Lake Legal Defender Association and
    Mr. Simms multiple times to check on the status of his appeal. When
    confronted with the fact that the prison‟s phone log did not show
    that he ever attempted to call the Salt Lake Legal Defender
    Association or Mr. Simms, Mr. Collins testified that he called from
    another inmate‟s phone account but did not know the inmate‟s
    name.
       ¶15 The trial court denied Mr. Collins‟s motion for reinstatement
    and stated that it found Mr. Simms‟s testimony “to be more credible
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    than [Mr.] Collins‟ testimony.”4 In assessing whether Mr. Collins was
    denied his right to appeal, the court reasoned as follows:
             In weighing the testimony of the witnesses, this Court
             concludes that defendant‟s counsel did apprise
             defendant of his right to appeal, though he did not
             specifically tell defendant that he must do so within 30
             days. Mr. Simms told the defendant to contact him
             within 14 days if he wished to file an appeal, well
             within the 30 day time period permitted. The Court
             further concludes that the defendant did not diligently
             attempt to appeal within the statutory time frame. The
             Court is particularly considering the fact that
             defendant‟s letter to the Court was sent more than two
             years after the time of sentencing. The Court did not
             properly apprise defendant of his right to appeal as
             required by Rule 22(c)(1), Utah Rules of Criminal
             Procedure. Although this Court should have done so,
             that does not entitle him to have the appeal reinstated
             because his attorney properly advised him of that right.
       ¶16 The court of appeals reversed the trial court, concluding
    “that properly advising a defendant of his right to appeal includes
    advising him of the time within which an appeal must be filed.”5
    Because neither the trial court nor Mr. Collins‟s counsel informed
    him of the thirty-day deadline, the court of appeals held that
    Mr. Collins “has a valid claim for reinstatement of [the] right [to
    appeal].”6 In so holding, the court rejected the State‟s argument that
    it was Mr. Collins‟s burden to show “that but for his lack of
    
    
    
    
       4  The trial court did not specify which parts of Mr. Collins‟s
    testimony it found less credible than Mr. Simms‟s testimony.
    Accordingly, there is no specific credibility finding concerning
    Mr. Collins‟s statements that if he had known of the thirty-day
    deadline, he “would have been on it right away, writing letters to
    whoever I had to or making phone calls or whatever,” and “would
    have contacted Mr. Simms and made sure he filed [the] appeal like
    [he] thought [Mr. Simms] did.”
       5   State v. Collins, 
    2013 UT App 42
    , ¶ 9, 
    298 P.3d 70
    .
       6   Id. (internal quotation marks omitted).
    
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                                 STATE v. COLLINS
                         Opinion of the Court
    information he would have filed an appeal.”7 Instead, the court
    stated as follows:
             [W]e hold that a defendant who has not been properly
             informed by either court or counsel of his appeal rights,
             including the time within which the notice of appeal
             must be filed, is entitled to reinstatement of the appeal
             time under Manning. Such a defendant is not required
             to show in addition that, had he been informed of his
             rights, he would have appealed.8
       ¶17 The State petitioned this court for writ of certiorari, which
    we granted. We have jurisdiction pursuant to Utah Code section
    78A-3-102(3)(a).
                               Standard of Review
       ¶18 On certiorari, “we review the decision of the court of
    appeals and not that of the trial court.”9 “[W]e review the decision of
    the court of appeals for correctness” and “may affirm the court of
    appeals‟ decision on any ground supported in the record.”10
                                     Analysis
        ¶19 Mr. Collins‟s claim for reinstatement of his right to appeal
    relies on the third of three scenarios in Manning v. State that we
    identified as unconstitutional deprivations of a criminal defendant‟s
    right to appeal—the scenario where “the court or the defendant‟s
    attorney failed to properly advise defendant of the right to appeal.”11
    The court of appeals held that Mr. Collins was entitled to
    reinstatement of time for filing an appeal under this scenario and
    
    
       7   Id. ¶ 13.
       8   Id. ¶ 15.
       9 American Fork City v. Pena-Flores, 
    2002 UT 131
    , ¶ 7, 
    63 P.3d 675
    (internal quotation marks omitted).
       10   Id. (internal quotation marks omitted).
       11 
    2005 UT 61
    , ¶ 31, 
    122 P.3d 628
    . We note that in his argument
    before the trial court, Mr. Collins also based his claim for
    reinstatement on the ground that Mr. Simms failed to file an appeal
    after being expressly told to do so. But Mr. Collins did not preserve a
    challenge to the trial court‟s findings of fact on this point nor has he
    raised this argument before us. See State v. Collins, 
    2013 UT App 42
    ,
    ¶ 3 n.1, 
    298 P.3d 70
    . Accordingly, in this opinion we do not address
    his claim for restatement on this basis.
    
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                               Opinion of the Court
    
    rejected the State‟s argument “that Manning error is subject to review
    for harmless error or prejudice.”12
        ¶20 We reverse because the court of appeals erred in not
    reviewing Mr. Collins‟s claim for reinstatement under a harmless
    error analysis. Both Manning and rule 4(f) of the Utah Rules of
    Appellate Procedure require that a defendant show that he has been
    “deprived” of the right to appeal, which implicitly requires the
    defendant to show that he would have appealed had he been
    properly informed. Moreover, the general rule is that all errors are
    reviewed for harmlessness, and Mr. Collins has not shown that a
    court‟s failure to comply with rule 22(c)(1) of the Utah Rules of
    Criminal Procedure falls within the structural error exception to this
    general rule. Ultimately, we remand the case to the trial court to
    determine whether Mr. Collins has shown by a preponderance of the
    evidence that he would have appealed had he been properly
    informed of his right to appeal.
     I. To Have a Valid Claim for Reinstatement of the Right to Appeal
    Under Scenario Three of Manning, a Criminal Defendant Must Show
       by a Preponderance of the Evidence That He Was Not Properly
    Advised of the Right to Appeal and That He Would Have Appealed
                      Had He Been Properly Informed
       ¶21 Under the Utah Constitution, criminal defendants have “the
    right to appeal in all cases.”13 But to exercise this right, defendants
    must properly invoke the appellate court‟s jurisdiction. “Appellate
    courts do not enjoy unlimited power to review the actions of trial
    courts” and “cannot conjure jurisdiction.”14
        ¶22 One procedural prerequisite to invoking appellate court
    jurisdiction is the requirement that an aggrieved party file “a notice
    of appeal with the clerk of the trial court.”15 This must be done
    “within 30 days after the date of entry of the judgment or order
    appealed from.”16 This deadline is “jurisdictional in nature,”
    
    
    
    
       12   Collins, 
    2013 UT App 42
    , ¶ 10.
       13   UTAH CONST. art. I, § 12.
       14   State v. Lara, 
    2005 UT 70
    , ¶ 10, 
    124 P.3d 243
    .
       15   UTAH R. APP. P. 3(a).
       16   Id. 4(a).
    
                                          7
                                  STATE v. COLLINS
                              Opinion of the Court
    meaning that an appellate court simply has no power to hear the
    case if a notice of appeal is untimely.17
        ¶23 There is an exception for criminal defendants, however, to
    the general rule that requires the timely filing of a notice of appeal.
    In Manning v. State, we concluded that a criminal defendant‟s
    constitutional entitlement to the right to appeal required that we
    “provide a readily accessible and procedurally simple method by
    which persons improperly denied their right to appeal can promptly
    exercise this right.”18 We therefore held that “the trial or sentencing
    court may reinstate the time frame for filing a direct appeal where
    the defendant can prove . . . that he has been unconstitutionally
    deprived, through no fault of his own, of his right to appeal.”19 We
    further outlined three scenarios that would each constitute an
    unconstitutional deprivation of the right to appeal:
             (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; (3) the court or the
             defendant‟s attorney failed to properly advise
             defendant of the right to appeal.20
    A defendant must “demonstrate by a preponderance of evidence
    that she qualifies for any of the exceptions listed above.”21
        ¶24 Manning has limits. Manning relief “is not available to a
    defendant properly informed of his appellate rights who simply
    let[s] the matter rest, and then claim[s] that he did not waive his
    right to appeal.”22 Further, because criminal defendants bear the
    burden to demonstrate they are entitled to Manning relief, we begin
    with the presumption that “criminal defendants who fail to file a
    [timely] notice of appeal . . . have knowingly and voluntarily waived
    th[e] right [to appeal].”23 Thus, we concluded in Manning that “in the
    
       17   Lara, 
    2005 UT 70
    , ¶ 11 (internal quotation marks omitted).
       18   
    2005 UT 61
    , ¶ 26, 
    122 P.3d 628
    .
       19   Id. ¶ 31.
       20   Id. (citations omitted).
       21   Id. ¶ 32 (internal quotation marks omitted).
       22 Id. ¶ 33 (alterations in original) (internal quotation marks
    omitted).
       23   Id. ¶ 1.
    
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                               Opinion of the Court
    
    vast majority of cases where a defendant fails to comply with the
    rule 4(a) thirty-day requirement for filing a timely appeal, . . . the
    defendant will be held to have waived his right to appeal.”24
        ¶25 Here, Mr. Collins relies on the third Manning scenario,
    alleging that he is entitled to reinstatement of his right to appeal
    because neither the court nor his attorney properly advised him of
    his right to appeal in that they did not inform him of the time
    limitations for filing an appeal. Rule 22(c)(1) of the Utah Rules of
    Criminal Procedure requires that “[f]ollowing 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.” But a
    court‟s failure to fully comply with rule 22(c)(1) will not necessarily
    result in a deprivation of the defendant‟s right to appeal because the
    defendant‟s attorney may independently inform the defendant of the
    right. To succeed on a claim of reinstatement, then, a defendant must
    show that “neither the sentencing court nor [the defendant‟s]
    attorney informed [the defendant] of his right to appeal.”25
        ¶26 In this case, the trial court failed to comply with rule 22(c)(1)
    by not informing Mr. Collins of the thirty-day deadline for filing an
    appeal. Mr. Collins‟s counsel, Mr. Simms, likewise failed to properly
    advise Mr. Collins of the filing deadline.26 Moreover, the State has
    not argued before us that being “properly informed” for purposes of
    Manning and rule 4(f) is somehow different than being properly
    instructed under rule 22(c)(1). We therefore assume for purposes of
    this appeal that Mr. Collins was not “properly informed” because
    the trial court did not comply with rule 22(c)(1) and Mr. Simms did
    not independently inform Mr. Collins of the applicable deadline.
       ¶27 But the State argues that the fact that Mr. Collins was not
    properly informed of his right of appeal does not end the matter.
    According to the State, Mr. Collins must additionally show “that but
    for not being informed of the 30-day deadline, he would have
    changed his mind and filed a timely appeal.” The State argues that
    reviewing reinstatement claims for harmless error is not a new
    
    
    
       24   Id. ¶ 33.
       25   Johnson v. State, 
    2006 UT 21
    , ¶ 26, 
    134 P.3d 1133
    .
       26Although Mr. Simms told Mr. Collins that he had fourteen days
    to change his mind regarding an appeal, he acknowledged that his
    advice was not “necessarily correct.”
    
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                                STATE v. COLLINS
                             Opinion of the Court
    requirement, but instead “has been an integral, if implicit, part of the
    reinstatement rationale from the beginning.”
        ¶28 We agree with the State for two reasons. First, both our
    reinstatement caselaw and rule 4(f) of the Utah Rules of Appellate
    Procedure require that a defendant show he has been “deprived” of
    the right to appeal. And this deprivation requirement implicitly
    recognizes that reinstatement is appropriate only where the
    defendant can show that he would have appealed had he been
    properly informed. In other words, as we stated in Manning, a
    defendant must establish that something outside of his control
    “prevented [him] in some meaningful way from proceeding.”27
    Second, the general rule is that all errors are reviewed for
    harmlessness. And the exception for structural errors is inapplicable
    here because the court‟s failure to advise Mr. Collins of the time
    limitations for filing an appeal as required by rule 22(c)(1) of the
    Utah Rules of Criminal Procedure was not an error that “infect[ed]
    the entire trial process.”28
       ¶29 As a result, we hold that a defendant seeking reinstatement
    under Manning and rule 4(f) has the burden of showing by a
    preponderance of the evidence that any error was prejudicial. This
    means that defendants relying on the third Manning scenario must
    show: (1) that neither the court nor counsel properly advised them of
    their right to appeal, and (2) that “but for” this failure they would
    have filed an appeal.
      A. Both Manning and Rule 4(f) Require a Defendant to Show He was
       “Deprived” of the Right to Appeal, Which Implicitly Requires Him
          to Show That “But For” the Occurrence of an Error Affecting
                 His Right to Appeal, He Would Have Appealed
        ¶30 Both our reinstatement caselaw and rule 4(f) recognize that
    reinstatement is only appropriate where a defendant is “deprived”
    of the right to appeal. Implicit in this requirement is the recognition
    that where a defendant would not have appealed anyway, there is
    no deprivation of the right to appeal and any error affecting that
    right would be harmless. Consequently, to show that any error was
    not harmless, a defendant seeking reinstatement relief under the
    third Manning scenario must show that had he been properly
    advised, he would have appealed.
    
    
       27   
    2005 UT 61
    , ¶ 26 (internal quotation marks omitted).
        Neder v. United States, 
    527 U.S. 1
    , 8 (1999) (internal quotation
       28
    
    marks omitted).
    
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       ¶31 Manning illustrates this point. There we held that a
    defendant must show by a preponderance of evidence that he was
    “deprived, through no fault of his own, of his right to appeal.”29 Our
    use of the term “deprived” was crucial because the word
    encompasses a narrow range of situations where a defendant would
    have appealed, but had that right “take[n] away” or was “kep[t]
    from the possession, enjoyment, or use” of that right.30 Further, we
    noted that reinstatement is appropriate only where a defendant is
    “prevented in some meaningful way from proceeding.”31 Implicit in
    these statements is the recognition that a defendant is not
    “deprived” of the right to appeal or “prevented” from appealing
    where the defendant would not have appealed regardless of any
    error.
        ¶32 The specific scenarios we outlined in Manning as examples
    of unconstitutional deprivations of the right to appeal are not
    contrary to this general rule requiring a defendant to show that he
    was “deprived” of the right to appeal. Indeed, there is an express
    requirement that a defendant show some harm in the first two
    scenarios. These scenarios include 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 [and] (2) the defendant
    diligently but futilely attempted to appeal within the statutory time
    frame without fault on defendant‟s part.”32 In both scenarios, the
    defendant takes affirmative steps to appeal and is ultimately harmed
    because something outside of his control causes the failure to appeal.
       ¶33 The third scenario is somewhat different in that it does not
    contain an express requirement of a showing of harm because it
    concerns a situation where the defendant lacks knowledge of his
    right to appeal and accordingly takes no action to vindicate that
    right. But this lack of express language does not override the fact
    that scenario three, like scenarios one and two, stems from the
    
    
    
       29   
    2005 UT 61
    , ¶ 31 (emphasis added).
       30 See WEBSTER‟S THIRD NEW INTERNATIONAL DICTIONARY 606
    (2002) (defining “deprive” as “1 obs: to take away . . . 3: to keep from
    the possession, enjoyment, or use of something”).
       31 Manning, 
    2005 UT 61
    , ¶ 26 (emphasis added) (internal
    quotation marks omitted).
       32   Id. ¶ 31 (citation omitted).
    
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                                STATE v. COLLINS
                             Opinion of the Court
    general rule requiring a defendant to show he was “deprived” of the
    right to appeal.
        ¶34 We later addressed Manning scenario three in Johnson v.
    State, and again implicitly recognized that claims for reinstatement
    are subject to harmless error analysis.33 There we remanded a
    defendant‟s case for a hearing on whether he had been denied his
    right to appeal.34 In doing so, we noted that “nothing in the record
    before us indicates whether [the defendant] was otherwise notified of
    his right to appeal.”35 From this statement it follows that had the
    defendant been “otherwise notified” of his right to appeal, we would
    have concluded that the failure on the part of the court and counsel
    to notify him was harmless.
        ¶35 Following our decision in Manning, we adopted rule 4(f) of
    the Utah Rules of Appellate Procedure to implement our holding in
    that case.36 Rule 4(f) requires “a showing that a criminal defendant
    was deprived of the right to appeal.”37 It further provides that “[i]f 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
    appeal.”38 Rule 4(f), like our reinstatement caselaw, focuses on
    whether a defendant was “deprived” of the right to appeal, which,
    again, implicitly recognizes that a defendant is not “deprived” of the
    right to appeal where he would not have appealed regardless of any
    error.
        ¶36 Our conclusion that harmless error analysis applies to
    claims for reinstatement is in accord with the decisions of many
    other courts. These decisions establish that there are two different
    ways in which an error affecting the right to appeal is rendered
    harmless.
        ¶37 First, many courts have applied harmless error review in
    situations where the defendant possessed independent knowledge of
    
       33   
    2006 UT 21
    , 
    134 P.3d 1133
    .
       34   Id. ¶¶ 25–26.
       35   Id. ¶ 26 (emphasis added).
       36UTAH R. APP. P. 4 advisory committee‟s note (“Subsection (f)
    was adopted to implement the holding and procedure outlined in
    Manning v. State, 
    2005 UT 61
    , 
    122 P.3d 628
    .”).
       37   UTAH R. APP. P. 4(f) (emphasis added).
       38   Id. (emphasis added).
    
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                             Opinion of the Court
    
    the right to appeal or had in fact appealed.39 For instance, in Peguero
    v. United States, the United States Supreme Court held that rule
    
       39  See, e.g., Tanner v. State, 
    624 So. 2d 703
    , 706 (Ala. Crim. App.
    1993) (“[B]ecause the appellant has in fact appealed his convictions
    and has not suffered any prejudice whatsoever, the error in the
    failure of the trial court to advise the appellant of his right to appeal
    is harmless.”); Castro v. Superior Court, 
    115 Cal. Rptr. 312
    , 317 n.13
    (Cal. Ct. App. 1974) (“Assuming that counsel was „ineffective‟ in
    failing to inform defendant of his rights[,] no relief on that basis can
    be granted unless defendant affirmatively alleges that by so
    informing him counsel would have told him something he did not
    already know.” (citation omitted)); People v. Boespflug, 
    107 P.3d 1118
    ,
    1121 (Colo. App. 2004) (holding that the “trial court should conduct
    an evidentiary hearing to determine whether the defendant was
    prejudiced”); Wakily v. State, 
    483 S.E.2d 313
    , 318 (Ga. Ct. App. 1997)
    (concluding that any error in failing to advise defendant of his
    appellate rights was harmless because “[i]mmediately after
    sentencing, appointed trial counsel informed the court that [the
    defendant] desired to appeal” and “[t]he court immediately
    appointed appellate counsel”); People v. Crump, 
    801 N.E.2d 1
    , 5–6 (Ill.
    App. Ct. 2003) (holding that a defendant waived his right to a direct
    appeal where he “was substantially advised of his appeal rights,”
    including the fact that the defendant had thirty days to file an
    appeal); State v. Dafoe, 
    463 A.2d 770
    , 773 (Me. 1983) (holding that the
    defendant was not prejudiced because “he was . . . permitted to
    perfect [a] direct appeal[]”); People v. Grant, No. 237899, 
    2003 WL 21108468
    , at *4 (Mich. Ct. App. May 15, 2003) (per curiam) (holding
    that a court‟s failure to properly advise a defendant regarding the
    defendant‟s appellate rights was harmless because “defendant has
    already appealed his sentence”); Novak v. State, 
    787 S.W.2d 791
    , 794
    (Mo. Ct. App. 1990) (holding that a defendant is not prejudiced by a
    trial court‟s failure to inform him of his right to appeal “if the
    defendant knows of his right to appeal his conviction”); Wilson v.
    State, 
    833 N.W.2d 492
    , 498 (N.D. 2013) (holding that a defendant was
    not prejudiced by a trial court‟s failure to inform him of his right to
    appeal because the defendant “had independent knowledge of his
    right to appeal”); State v. Fox, No. 11AP-106, 
    2011 WL 2201666
    , at *1
    (Ohio Ct. App. June 7, 2011) (holding that a defendant was not
    harmed by a trial court‟s failure to mention the right to appeal since
    the appeal would have had no practical effect on the outcome); White
    v. State, 
    208 S.E.2d 35
    , 40 (S.C. 1974) (holding “that there was no
    reversible error in the trial and that there was not an arguably
                                                                (continued)
                                         13
                                   STATE v. COLLINS
                              Opinion of the Court
    32(a)(2) of the Federal Rules of Criminal Procedure, requiring the
    court to advise a defendant who has pled not guilty of his right to
    appeal, is subject to harmless error analysis.40 And the Court
    concluded that the defendant in that case was not prejudiced by the
    trial court‟s error in not advising him of his right to appeal since he
    already possessed independent knowledge of that right.41
        ¶38 Second, several courts have concluded that an error
    affecting the right to appeal is rendered harmless where the
    defendant would not have appealed regardless of the error.42 For
    instance, in Roe v. Flores-Ortega,43 the United States Supreme Court
    applied the same “but for” test that we apply in this case to a claim
    by a defendant that her attorney rendered ineffective assistance of
    counsel by failing to file a notice of appeal after promising to do so.
    The Court stated that a defendant would not be entitled to relief “[i]f
    the defendant cannot demonstrate that, but for counsel‟s deficient
    
    
    
    meritorious ground of appeal, even if notice of intention to appeal
    had been timely served”); Hauck v. State, 
    162 P.3d 512
    , 515 (Wyo.
    2007) (concluding that the defendant was denied his right to appeal
    and noting that “[t]he record does not otherwise reflect that [he]
    knew of his right to appeal and the process involved to effectuate
    that right”).
       40 
    526 U.S. 23
    , 26–30 (1999). We note that former rule 32(a)(2) has
    since been replaced by rule 32(j)(1) of the Federal Rules of Criminal
    Procedure.
       41   Id. at 29–30.
       42 See, e.g., Shelton v. Comm’r of Corr., 
    977 A.2d 714
    , 721–22 (Conn.
    App. Ct. 2009) (holding that to establish prejudice a “defendant must
    demonstrate that there is a reasonable probability that, but for
    counsel‟s deficient failure to consult with him about an appeal, he
    would have timely appealed” (internal quotation marks omitted));
    State v. Patton, 
    195 P.3d 753
    , 767 (Kan. 2008) (requiring a defendant to
    “prove that, had he or she been properly informed, a timely appeal
    would have been sought”); Commonwealth v. Markowitz, 
    32 A.3d 706
    ,
    716 (Pa. Super. Ct. 2011) (“Where counsel has not advised his client
    about the client‟s appellate rights, the question becomes whether that
    failure caused actual prejudice to the petitioner, i.e., but for counsel‟s
    deficient failure to consult with him about an appeal, he would have
    timely appealed.” (internal quotation marks omitted)).
       43   
    528 U.S. 470
     (2000).
    
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                                Opinion of the Court
    
    performance, he would have appealed.”44 It further noted that
    without this showing, “counsel‟s deficient performance has not
    deprived him of anything, and he is not entitled to relief.”45 The Court
    continued that “to show prejudice . . . a defendant must demonstrate
    that there is a reasonable probability that, but for counsel‟s deficient
    failure to consult with him about an appeal, he would have timely
    appealed.”46
       ¶39 Moreover, the Supreme Court of Kansas has adopted the
    “but for” causation test pressed by the State in this case. This is
    particularly relevant because in Manning, we adopted Kansas‟
    approach for assessing reinstatement claims.47 In State v. Patton, the
    Kansas Supreme Court held that
             [i]f the sentencing hearing transcript demonstrates that
             the district judge did not adequately inform the
             defendant orally, and the State is unable to demonstrate
             that the defendant had actual knowledge of the
             required information from some other source, the
             defendant must then prove that, had he or she been
             properly informed, a timely appeal would have been
             sought.48
    The Kansas rule requires a defendant to show both that he was not
    properly informed regarding his right to appeal and that but for this
    lack of information he would have appealed. The court noted that its
    holding was supported by two main rationales. First, it stated that
    this causation requirement “is consistent with this court‟s original
    admonition that a defendant may not let the matter rest.”49 And
    second, the court stated that “we believe [the causation requirement]
    is true to United States Supreme Court precedent [in Peguero v.
    United States].”50
    
    
    
    
       44   Id. at 484 (emphasis added).
       45   Id. (emphasis added).
       46   Id. (emphasis added).
       47   
    2005 UT 61
    , ¶ 29.
       48   195 P.3d at 767.
       49   Id. (internal quotation marks omitted).
       50   Id.
    
                                           15
                                  STATE v. COLLINS
                             Opinion of the Court
        ¶40 We find the Kansas Supreme Court‟s approach in Patton
    persuasive. It ensures that reinstatement relief is given only to those
    defendants who fail to appeal “through no fault of their own.”51
    And it is in accord with the position taken by the Supreme Court in
    Peguero and Flores-Ortega, as well as a majority of the states, that
    reinstatement claims should be reviewed for harmless error.
         ¶41 In the case before us, the court of appeals concluded that the
    state and federal cases subjecting claims for reinstatement to
    harmless error review were inapposite because “the large majority of
    . . . cases [that utilized the harmless error analysis did] so because,
    unlike [Mr.] Collins, the defendant either appealed anyway or
    learned of those rights from another source.”52 While neither of those
    fact patterns occurred here, the point remains that those courts did
    apply a harmless error analysis to a claim for reinstatement. And the
    fact pattern now before us has been addressed by several courts,
    including the United States Supreme Court, and they have also
    applied harmless error analysis by requiring defendants to show that
    had they been properly informed of their right to appeal they would
    have appealed.
        ¶42 Moreover, the cases applying harmless error analysis do so
    because “as a general rule, . . . a court‟s failure to give a defendant
    advice required by the [rules] is a sufficient basis for . . . relief only
    when the defendant is prejudiced by the court‟s error.”53 A mere
    “technical violation of [a] [r]ule [is] insufficient to justify . . . relief”
    without a showing of prejudice.54 And, as we noted in Manning,
    reinstatement is appropriate only where a defendant is “prevented in
    some meaningful way from proceeding” with an appeal.55 So the
    mere fact that a majority of the cases applying harmless error
    analysis involved scenarios where the defendant had independent
    knowledge of the right to appeal or had actually appealed does not
    preclude application of the analysis to a scenario where a defendant
    was not properly informed of his right to appeal, but would not have
    appealed anyway. A defendant who actually files an appeal or has
    independent knowledge of the right to appeal, including the relevant
    
       51   Manning, 
    2005 UT 61
    , ¶ 42.
       52   State v. Collins, 
    2013 UT App 42
    , ¶ 11, 
    298 P.3d 70
    .
       53   Peguero, 526 U.S. at 27.
       54   Id. at 28 (internal quotation marks omitted).
       55 Manning, 
    2005 UT 61
    , ¶ 26 (emphasis added) (internal
    quotation marks omitted).
    
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                               Cite as: 
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                              Opinion of the Court
    
    filing deadline, has not been prevented from proceeding with an
    appeal and suffers no harm. Similarly, a defendant who had no
    intention of appealing has not been prevented from proceeding with
    an appeal and has also suffered no harm.
        ¶43 In sum, Manning provides that reinstatement relief is
    appropriate only where a defendant establishes that he was
    “deprived” of the right to appeal. Rule 4(f) contains the same
    requirement. Implicit in this requirement is the recognition that a
    defendant who would not have appealed even if properly advised of
    his right to appeal should not be entitled to reinstatement relief.
        B. Application of Harmless Error Analysis Here Conforms to Our
            General Approach of Reviewing Errors for Harmlessness
       ¶44 Moreover, applying harmless error analysis is the general
    rule, not the exception.56 A harmless error is one “that is sufficiently
    inconsequential that there is no reasonable likelihood that it affected
    the outcome of the proceedings.”57 We conclude that the general rule
    governs here because neither the exception for structural errors nor
    the approach we took in State v. Alexander58 applies here.
    1. The Exception for Structural Errors is Inapplicable Here
        ¶45 Structural errors are not subject to harmless error analysis.
    But the class of errors constituting structural error is narrow. Indeed,
    “[s]tructural error is reserved for a „very limited class of cases‟ in
    which a constitutional error so undermines the fairness of the
    proceedings that prejudice must be presumed.”59
    
    
    
    
       56 UTAH R. CRIM. P. 30(a) (“Any error, defect, irregularity or
    variance which does not affect the substantial rights of a party shall
    be disregarded.”); see State v. Neeley, 
    748 P.2d 1091
    , 1095 (Utah 1988)
    (“We do not presume prejudice upon a showing of an irregularity in
    the proceedings below; rather, we will closely examine the record to
    determine the effect the error may have had on the outcome of the
    proceedings.”).
       57H.U.F. v. W.P.W., 
    2009 UT 10
    , ¶ 44, 
    203 P.3d 943
     (internal
    quotation marks omitted).
       58   
    2012 UT 27
    , 
    279 P.3d 371
    .
       59 State v. Arguelles, 
    2003 UT 1
    , ¶ 94 n.23, 
    63 P.3d 731
     (quoting
    Johnson v. United States, 
    520 U.S. 461
    , 468–69 (1997)).
    
                                        17
                                   STATE v. COLLINS
                              Opinion of the Court
        ¶46 Structural errors differ from other errors in that they
    “affect[] the framework within which the trial proceeds”60 by
    “infect[ing] the entire trial process” and “render[ing] [the] trial
    fundamentally unfair.”61 An error is not structural where it is
    “simply an error in the trial process itself.”62 Among the errors that
    are deemed structural are: (1) a complete denial of right to counsel,
    (2) the lack of an impartial trial judge, (3) racial discrimination in
    grand jury selection, (4) denial of the right of self-representation at
    trial, (5) denial of the right to a public trial, and (6) an erroneous
    reasonable-doubt instruction.63
        ¶47 The trial court‟s failure to properly inform Mr. Collins of his
    right to appeal in accordance with Utah Rule of Criminal Procedure
    22(c)(1) does not constitute a structural error. Although not
    informing Mr. Collins of the relevant thirty-day deadline was error,
    the error did not “infect the entire trial process” rendering the “trial
    fundamentally unfair.” Indeed, Mr. Collins‟s lack of notice regarding
    the relevant appeals deadline had no effect whatsoever on the
    “framework” of the trial proceedings, nor does it fit into the class of
    errors previously defined by the Supreme Court as structural errors.
        ¶48 Mr. Collins argues that Rodriquez v. United States64 and
    Penson v. Ohio65 stand for the proposition that the failure by counsel
    to advise a defendant of the right to appeal is equivalent to the
    complete denial of counsel. But this argument is misplaced. In
    Rodriquez, the Supreme Court clarified that a defendant seeking
    reinstatement of the right to appeal need not show “some likelihood
    of success on appeal.”66 But the Court did not hold, as Mr. Collins
    suggests, that claims for reinstatement are not subject to harmless
    error review. In fact, a defendant‟s burden to establish prejudice
    with respect to such claims is much lower than showing “some
    likelihood of success on appeal.” To establish prejudice, all a
    defendant must show is that he would have appealed “but for” the
    
    
    
       60   Johnson, 520 U.S. at 468 (internal quotation marks omitted).
       61   Neder, 527 U.S. at 8 (internal quotation marks omitted).
       62   Id. (internal quotation marks omitted).
       63   Johnson, 520 U.S. at 469.
       64   
    395 U.S. 327
     (1969).
       65   
    488 U.S. 75
     (1988).
       66   395 U.S. at 330.
    
                                         18
                                Cite as: 
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                               Opinion of the Court
    
    court‟s and his attorney‟s failure to properly inform him of the right
    to appeal.
        ¶49 Penson is also distinguishable. There a defendant requested
    that his attorney file an appeal.67 The attorney did so but also sought
    withdrawal from the case because he believed the appeal was
    meritless.68 The appeals court allowed counsel to withdraw but then
    rejected defendant‟s motion to have new counsel appointed.69
    Instead, the court conducted its own review of the record and
    ultimately affirmed all but one of the defendant‟s convictions. The
    Supreme Court concluded that it was “inappropriate to apply either
    the prejudice requirement of Strickland or . . . harmless-error
    analysis” because the defendant was “entirely without the assistance
    of counsel on appeal.”70 Here, Mr. Collins argues only that his
    counsel did not properly advise him regarding the relevant appeals
    deadline. He was not, like the defendant in Penson, entirely denied
    the right to counsel.
        ¶50 Ultimately, the failure to properly inform Mr. Collins of the
    relevant thirty-day deadline to appeal does not fall within the class
    of structural errors because it did not “infect the entire trial process”
    rendering the “trial fundamentally unfair.” And because the error
    was not structural, we apply the general rule that errors must be
    reviewed for harmlessness.
    2. Our Approach in State v. Alexander is Inapplicable Here
        ¶51 The court of appeals also concluded that claims for
    reinstatement are not subject to harmless error review under the
    approach we took in State v. Alexander.71 In that case, we held that a
    defendant seeking to withdraw a plea on the basis that it was not
    knowing and voluntary need not show prejudice.72 The court of
    appeals concluded that Alexander applied here because the “holding
    rests in part on the difficulty of evaluating whether an uninformed
    
    
    
    
       67   Penson, 488 U.S. at 77.
       68   Id. at 78.
       69   Id.
       70   Id. 88–89.
       71   
    2012 UT 27
    .
       72   Id. ¶ 49.
    
                                        19
                                 STATE v. COLLINS
                         Opinion of the Court
    defendant would, had he or she been informed, nevertheless have
    pleaded guilty.”73
        ¶52 But this practical difficulty was only one of three rationales
    for our holding in Alexander. In fact, the first two reasons we
    provided for declining to require a showing of prejudice where a
    defendant seeks withdrawal of a plea related to the language and
    intent of the rule and statute at issue in that case. Specifically, we
    noted first that “a showing of prejudice conflicts with our intent
    when adopting the language of rule 11(l).”74 And second, we noted
    that “the Legislature has not required a showing of prejudice. . . .
    [But instead] provided that defendants need show only that their
    pleas were not knowingly and voluntarily made.”75
        ¶53 Neither of those rationales is applicable here. As to the first
    rationale, the language of our opinion in Manning and rule 4(f) of the
    Utah Rules of Appellate Procedure implicitly requires, by use of
    words such as “deprived,” a showing of prejudice by the defendant.
    So whereas in Alexander requiring a showing of prejudice conflicted
    with the language of the applicable rule, rule 11(l) of the Utah Rules
    of Criminal Procedure, here a showing of prejudice is mandated by
    rule 4(f) of the Utah Rules of Appellate Procedure and our Manning
    decision. And as to the second rationale, it is inapplicable here given
    that the Legislature has not enacted a statute governing claims for
    reinstatement. So even if we assume that the task of determining
    whether a defendant would have appealed had he been properly
    informed of the right to appeal will present the same practical
    difficulties we identified in Alexander, these difficulties do not
    override the fact that the governing caselaw and rule requires that a
    defendant make a showing of harm.
     II. We Remand for the Trial Court to Consider Whether Mr. Collins
         Has Met His Burden of Showing That Had He Been Properly
          Advised of His Right to Appeal, He Would Have Appealed
       ¶54 Having concluded that Mr. Collins must show that he
    would have appealed had he been properly informed of his right to
    appeal, we now turn to a discussion of whether he has satisfied his
    burden.
    
    
    
    
       73   Collins, 
    2013 UT App 42
    , ¶ 14.
       74   Alexander, 
    2012 UT 27
    , ¶ 46.
       75   Id. ¶ 47.
    
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                             Cite as: 
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                            Opinion of the Court
    
        ¶55 The State argues that Mr. Collins has never claimed that the
    trial court‟s and counsel‟s failure to properly inform him of his right
    to appeal caused him not to appeal. Instead, the State suggests that
    Mr. Collins has “consistently claimed that Simms caused him not to
    appeal by failing to file an appeal when [Mr. Collins] timely asked
    him to.”
       ¶56 The State‟s characterization of Mr. Collins‟s claim is not
    entirely accurate. In fact, Mr. Collins did testify that he would have
    acted differently had either the court or Mr. Simms informed him of
    the thirty-day deadline. He first asserted that had he known of the
    deadline, he “would have been on it right away, writing letters to
    whoever I had to or making phone calls or whatever.” And when
    asked specifically if he would have done anything differently had he
    known of the thirty-day deadline, he testified that had he “would
    have contacted Mr. Simms and made sure he filed [the] appeal like
    [he] thought [Mr. Simms] did.”
        ¶57 But it is unclear from the record whether the trial court
    found any of these statements to be credible. The court did find that
    Mr. Simms‟s testimony was more credible than Mr. Collins‟s
    testimony. But the only point on which both Mr. Collins and
    Mr. Simms testified concerned whether Mr. Collins affirmatively
    told Mr. Simms to file an appeal. Mr. Simms‟s testimony did not
    directly address what Mr. Collins might have done had he known of
    the thirty-day deadline for filing an appeal. And the court did not
    make a specific credibility finding with respect to Mr. Collins‟s
    testimony concerning the thirty-day deadline. Because of this
    ambiguity, we are unable to determine whether Mr. Collins met his
    burden of showing that the court‟s and counsel‟s failure to properly
    inform him of his right to appeal caused him to not appeal.
    Accordingly, we remand the case to the trial court to determine
    whether Mr. Collins has met this burden, which it can do by holding
    further hearings on the issue or relying on the existing record.
                                 Conclusion
        ¶58 We reverse the court of appeals‟ decision because the court
    erred by not reviewing Mr. Collins‟s claim for harmless error. Both
    Manning and rule 4(f) of the Utah Rules of Appellate Procedure
    require that a defendant show he was “deprived” of the right to
    appeal, and so implicitly require a defendant to show that any error
    affecting his right to appeal caused some harm. Accordingly, we
    remand this case to the trial court to determine whether Mr. Collins
    can show by a preponderance of the evidence that the court‟s and
    
    
                                      21
                              STATE v. COLLINS
                            Opinion of the Court
    
    counsel‟s failure to properly inform him caused him not to appeal,
    which it can do by holding further hearings on the issue or relying
    on the existing record.
    
       ASSOCIATE CHIEF JUSTICE NEHRING, dissenting:
        ¶60 I respectfully dissent. Mr. Collins possessed a right to
    appeal, protected by the Utah Constitution. The majority reasons
    that if a defendant claims to have been deprived of his right to
    appeal, he must demonstrate that he would have appealed had he
    been properly advised of his appeal rights. I am baffled how a
    defendant could make the showing necessary to overcome a claim of
    harmlessness when he did not even know of his right to appeal. A
    decision to commence or forgo an appeal involves a multitude of
    considerations. Knowledge of the existence of a right of appeal is, by
    far, the most important of these considerations. A defendant who
    does not know he has a right of appeal cannot be penalized for
    failing to exercise it. Accordingly, I would affirm the court of
    appeals.
    
    
    
    
                                     22