Manning v. State
In Manning v. State, 2005 UT 61, 122 P.3d 628, Ms. Manning entered a guilty plea and expressly waived her right to appeal.
Later, after the appeal period had passed, she claimed that she had been denied her right to appeal. She based this claim on the failure of her lawyer to tell her about the time limits for filing a notice of appeal.
Post-conviction relief was the avenue that Ms. Manning followed in her attempt to undo her plea.
The Court held that the PCRA was not available to her because it is a remedy only for those who challenge "'a conviction or sentence for a criminal offense and who have exhausted all other legal remedies, including direct appeal.'" Manning, 2005 UT 61, P 24, 122 P.3d 628 (quoting Utah Code Ann. 78-35a-102(1)).
The Court decided, however, that there must be some "readily accessible and procedurally simple method by which persons improperly denied their right to appeal can promptly exercise that right." Id.
Generally, a defendant who fails to file a timely notice of appeal is presumed to have knowingly and voluntarily waived his right to appeal. Id.
To overcome this presumption, a defendant must prove that he was "unconstitutionally deprived, through no fault of his own, of his right to appeal." Id.
The Court noted three exceptions that would allow the post-conviction procedural bar to be overcome. These are:
(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. Id.
The defendant must then prove these exceptions by a preponderance of the evidence. Id.
The Court concluded that Ms. Manning had not carried her burden of proving that her failure to timely appeal was due to circumstances that amounted to a "denial" of her right to appeal.
In so doing, the Court reiterated as "well established" the principle that the right to appeal "will be considered waived where the defendant enters a knowing and voluntary guilty plea pursuant to a plea agreement that expressly waives the right to appeal and is entered in accordance with the procedural safeguards of rule 11 of the Utah Rules of Criminal Procedure." Id.
In sum, the Court recognized that the nunc pro tunc resentencing remedy had been obviated by the advent of the PCRA and subsequent changes in the rules of procedure.
Accordingly, when a defendant has been unconstitutionally denied his right to an appeal he need not proceed under the PCRA, which is available after all other remedies have been exhausted.