Manning v. State

2005 UT 61
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Carolyn Roberts Manning, No. 20040453
Petitioner,
v.
F I L E D
State of Utah,
Respondent. September 23, 2005
---
Third District, Salt Lake
The Honorable Judith S. Atherton
No. 020907138
Attorneys: Mark L. Shurtleff, Att’y Gen., Laura Dupaix,
Asst. Att’y Gen., Salt Lake City, for petitioner
Joan C. Watt, Salt Lake City, for respondent
---
On Certiorari to the Utah Court of Appeals
DURHAM, Chief Justice:
¶1 In this case, the petitioner seeks review of the court
of appeals’ decision that (1) a criminal defendant claiming
denial of the right to appeal must file a separate civil action
for relief pursuant to rule 65C of the Utah Rules of Civil
Procedure and the Post-Conviction Remedies Act, and (2) the State
is not required to prove a knowing and voluntary waiver of the
right to appeal before a court may determine that the right to
appeal has not been unconstitutionally denied. We conclude that,
in light of revisions to the Utah Rules of Civil Procedure, a
criminal defendant claiming denial of the right to appeal must
file a motion in the trial court for reinstatement of a denied
right to appeal under the exceptions outlined in this case,
rather than under rule 65C and the Post-Conviction Remedies Act.
We further hold that criminal 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

1 At the time, State v. Ostler, 2001 UT 68, ¶ 11, 31 P.3d
528, which held that the thirty-day time period for withdrawing a
guilty plea runs not from the entry of the plea, but from “the
date of final disposition of the case at the district court had
not yet issued.”
No. 20040453 2
the burden to prove otherwise by establishing that one of the
exceptions defined in this case applies.
BACKGROUND
¶2 On July 12, 2001, pursuant to a plea agreement in which
additional charges against her were dropped, the petitioner,
Carolyn Manning, pled guilty to one count of failure to render a
proper tax return, a third degree felony; one count of unlawful
dealing of property by a fiduciary, a second degree felony; and
one count of third degree felony theft.
¶3 Manning’s written plea agreement explicitly waived
various rights otherwise accorded to criminal defendants,
expressed understanding that her unconditional guilty plea would
“not preserv[e] any issue for appeal relative to the Court’s
rulings on pre-trial motions or based upon statutory or
constitutional challenges,” and acknowledged that “by pleading
guilty/no contest I am waiving my rights to file an appeal.” The
plea agreement also acknowledged the thirty-day time limit set by
Utah Code section 77-13-6(2)(a) for moving to withdraw a guilty
plea and recognized that the court would grant such a motion only
upon “a showing of good cause.”
¶4 At Manning’s plea hearing, the court reviewed her
“right to appeal a conviction” should she proceed to trial and
ensured that Manning understood that, by contrast, her “right to
appeal these pleas of guilty is very limited.” After a thorough
colloquy in which the court determined that Manning was “fully
competent” to participate in the proceedings, that her attorney
had “taken the time to extend himself to adequately and properly
serve [her], and [that she was] satisfied with his service,” and
that Manning understood both the charges and the consequences of
her guilty pleas and was entering her guilty plea “of [her] own
free will,” the court accepted her pleas and informed her that
she could move to withdraw them within thirty days.1
¶5 Manning was sentenced on September 27, 2001. Fifty-
seven days later, while in custody, Manning filed a pro se notice
of appeal. The district court dismissed this notice of appeal as
untimely under rule 4(a) of the Utah Rules of Appellate
Procedure.

3 No. 20040453
¶6 On July 31, 2002, Manning petitioned the district court
for an extraordinary writ that would “allow[] her to be
[re]sentenced nunc pro tunc[,] thereby extending the time in
which to file a notice of appeal, pursuant to rule 65B(b) and/or
65C of the Utah Rules of Civil Procedure.” As the basis for this
request, Manning claimed that her attorney “did not inform her
that she could file a notice of appeal within 30 days of entry of
judgment,” and that, as a result, her “right to appeal under
Article I, section 12 of the Utah Constitution [had] been
violated.”
¶7 After a hearing on September 27, 2002, the district
court denied Manning’s petition, finding that Manning “was
represented by very competent counsel,” “was informed by the
court of her limited right to appeal,” and had “not established
that she was unconstitutionally denied her right to appeal.” The
court concluded that Manning had been sufficiently notified of
her limited right to appeal, but had “failed to timely exercise
[that] right” and was “therefore bound by her own failure to
exercise her right to appeal.”
¶8 Manning challenged the district court’s denial of her
petition in the court of appeals, arguing that her failure to
timely appeal did not constitute a knowing and voluntarily waiver
of her right to appeal. Manning v. State, 2004 UT App 87, ¶ 23,
89 P.3d 196. Affirming the district court, the court of appeals
ventured “to clarify the correct procedural approach” in cases
“where resentencing to resurrect the right to appeal is the
objective.” Id. ¶ 12. It concluded that the proper procedure
was to apply for relief under rule 65C, which it considered the
successor to rule 65B(i) of the Utah Rules of Civil Procedure,
pursuant to which we had previously directed defendants claiming
denial of the right to appeal to file their petitions. Id.
¶¶ 10, 13 (citing State v. Johnson, 635 P.2d 36, 38 (Utah 1981)).
The court also concluded that Manning was not eligible for relief
under Johnson, rejecting her argument that the State bore the
burden of proving that her failure to timely appeal constituted a
“knowing and voluntary waiver” of the right to appeal. Id. at
¶¶ 23, 25. Rather, the court held that a defendant who claims
that her right to appeal has been unconstitutionally “denied”
must show that her failure to exercise that right was the result
of interference that “originate[d] in the criminal justice
system” and was not simply the result of missing the deadline for
bringing an appeal. Id. ¶ 25.
¶9 We granted certiorari to consider (1) whether a
criminal defendant who seeks resentencing to revive the right to

No. 20040453 4
appeal pursuant to State v. Johnson, 635 P.2d 36 (Utah 1981),
must file a separate civil action pursuant to rule 65C rather
than requesting relief from the sentencing court in the
underlying criminal case and (2) whether a defendant’s request
for resentencing must be granted unless the record demonstrates
that the defendant knowingly and voluntarily waived her right to
appeal, and, if so, whether Manning knowingly and voluntarily
waived her right to appeal in this case.
STANDARD OF REVIEW
¶10 On certiorari, we review the decision of the court of
appeals for correctness, without deference to its conclusions of
law. In re A.T., 2001 UT 82, ¶ 5, 34 P.3d 228. The underlying
issue of the district court’s denial of Manning’s petition for
postconviction relief is a legal issue reviewed for correctness.
Myers v. State, 2004 UT 31, ¶ 9, 94 P.3d 211.
ANALYSIS
¶11 The first issue presented on certiorari requires us to
address whether the procedure previously laid out by this court
in State v. Johnson, 635 P.2d 36 (Utah 1981), to restore a denied
right to appeal continues to be available. We conclude that, in
light of the intervening revisions to rule 65B of the Utah Rules
of Civil Procedure, the promulgation of rule 65C, and the 1996
enactment of the Post-Conviction Remedies Act, Utah Code Ann.
§ 78-35a-101 (2002), the Johnson remedy is no longer able to
serve the purpose for which it was designed. We begin our
analysis by discussing the nature of the Johnson remedy,
concluding that it was essentially a hybrid of both coram nobis
and postconviction proceeding remedies. We also explain the
evolution of Utah statutory law and procedural rules and why they
render the Johnson remedy no longer functional. We then clarify
what constitutes a denial of the constitutional right to appeal
and outline a new procedure to restore the right to appeal for a
defendant who proves, under the framework we provide, that he has
not knowingly or voluntarily waived it. We then apply this new
framework to the circumstances of this case.
I. PROCEDURAL HISTORY
A. The Johnson Remedy
¶12 In Johnson, we held that a criminal defendant who
reasonably relied on his attorney’s assurance that an appeal
would be timely filed was unconstitutionally denied his right to
appeal his conviction. State v. Johnson, 635 P.2d 36, 38 (Utah

2 “A writ of error coram nobis is a common-law writ of
ancient origin devised by the judiciary, which constitutes a
remedy for setting aside a judgment which for a valid reason
should never have been rendered.” 24 C.J.S. Crim. L. § 1610
(2004).
5 No. 20040453
1981). We then established a procedural mechanism to restore
this right in Johnson’s case and in future situations in which a
defendant was prevented from bringing a timely appeal through no
fault of his own. We directed defendants to file a motion for
resentencing in the trial court so that the thirty-day time
period for bringing an appeal set forth in rule 4(a) of the Utah
Rules of Appellate Procedure would begin to run anew. Id. at 38.
¶13 Manning urges us to retain the Johnson remedy because
it allows filing for relief in the underlying criminal case, thus
preserving the right to state-paid counsel in seeking an appeal.
She argues that the changes to the Utah Rules of Civil Procedure
have no impact on the remedy’s availability because the remedy is
based on the common law writ of error coram nobis2 and may
continue to function as such. In adopting the remedy in Johnson,
however, we described “[t]he postconviction hearing procedure
[under the Utah Rules of Civil Procedure as] a successor to the
common-law writ of error coram nobis,” and directed defendants to
seek relief under rule 65B(i). Id. The State accordingly argues
that since the Johnson remedy originally proceeded under rule
65B(i), it must now be sought under rule 65C, which it considers
the successor to former rule 65B(i), and the Post-Conviction
Remedies Act (PCRA), Utah Code sections 78-35a-101 to -110
(2002).
¶14 Based on our analysis of Johnson and the Rules of Civil
Procedure, we conclude that neither party is entirely accurate in
its assessment of Johnson’s analytic sources. Rather, as
discussed below, the Johnson remedy was a hybrid of both coram
nobis and postconviction procedure principles, judicially
fashioned to preserve the constitutional right to appeal in
criminal cases. As we also discuss below, the evolution of
statutory law and procedural rules since Johnson has foreclosed
the usefulness of this remedy.
1. Johnson’s Coram Nobis Foundation
¶15 We first examine the relationship between the common
law writ of error coram nobis and the Johnson remedy. In
Johnson, we examined other jurisdictions that had, by narrowly
expanding the common law writ of error coram nobis, permitted
“‘resentenc[ing] nunc pro tunc upon the previous finding of

No. 20040453 6
guilt’” as a mechanism for restoring the time frame for filing an
appeal where the right to appeal had been denied. 635 P.2d at 38
(quoting People v. Callaway, 247 N.E.2d 127, 130 (N.Y. 1969)).
Under Utah common law, coram nobis had been available to “vacate
a judgment of conviction on the basis of facts which, without
defendant’s fault, did not appear on the face of the record and
as to which defendant was without other remedy.” Id. We
followed other courts in relying on coram nobis as a basis for
considering “extra-record facts” to establish the denial of the
right to appeal and vacate a judgment, after which the defendant
would be resentenced to establish a new appeal time frame. Id.
¶16 Coram nobis principles were thus essential to the
Johnson remedy. Consistent with the United States Supreme
Court’s coram nobis rulings in “right to appeal” criminal cases,
which direct that petitions be filed in the underlying criminal
case, James v. United States, 459 U.S. 1044, 1046 (1982); United
States v. Morgan, 346 U.S. 502, 506 n.4 (1954), motions for
Johnson resentencing are filed in the underlying criminal case
rather than as separate civil proceedings, as would be required
if the remedy were based solely on rule 65B or its successor
postconviction procedures. This is an important element of the
Johnson remedy, partly for judicial economy in reviewing the
record, but mostly because an attorney’s assistance is not
guaranteed to indigent defendants in postconviction civil
proceedings. By contrast, a Johnson motion filed in the
underlying criminal case guarantees defendants the right to
state-paid counsel in seeking a first appeal. See Utah Code Ann.
§ 77-32-301(5)(2002). This is important because the right to
representation is an integral part of the right to appeal Johnson
sought to protect.
¶17 The State argues that former rules 65B(i) and 65B(b)
permitted the court to provide a pro bono attorney to an indigent
petitioner in civil postconviction proceedings, as does the
current PCRA section 78-35a-109(1). While the State is correct
on this point, the Johnson remedy was fashioned not just to
permit, but to guarantee, assistance of counsel in seeking a
first appeal of right in the underlying criminal case, in
accordance with coram nobis relief. See Beal v. Turner, 454 P.2d
624, 627 (Utah 1969).
¶18 The Johnson remedy also incorporates coram nobis
principles by placing the burden of proof establishing denial of
the right to appeal on the defendant. State v. Montoya, 825 P.2d
676, 679 (Utah Ct. App. 1991). Manning incorrectly argues that
coram nobis and the Johnson remedy shift this burden to the
State; she asks us to require the State to prove a defendant’s

3 Montoya suggested that a claim of being “denied effective
assistance of counsel” at trial establishes a denial of a
constitutional right that warranted seeking Johnson resentencing
to resurrect an appeal. 825 P.2d at 679. Under the former rule
65B, claims of ineffective assistance of counsel could indeed be
raised; now, as discussed below, rule 65C and the PCRA are the
proper means to seek relief for such claims except in the limited
situations defined by this case.
4 Manning additionally points out that Johnson-type relief
is permitted to be filed by motion rather than by complaint, as
required by rule 65B(i) and its successors, and argues that it is
therefore coram nobis and not postconviction relief. We do not
find this distinction determinative.
7 No. 20040453
knowing and voluntary waiver of the right to appeal before a
court may deny petitions seeking to restore an appeal time frame.
However, coram nobis proceedings, whether styled as criminal or
civil, place on the defendant the burden of proving “by a
preponderence of evidence facts which will entitle him to
relief.” Sullivan v. Turner, 448 P.2d 907, 910 (Utah 1968); see
also United States v. Butler, 295 F. Supp. 2d 816, 818 (S.D. Ohio
2003). Likewise, the Johnson remedy requires petitioners, not
the State, to produce findings in the record or conduct a hearing
establishing the unconstitutional denial of the right to appeal.
Montoya, 825 P.2d at 679.3 This is necessary to prevent abuse by
those seeking to circumvent the timeliness requirements for
appeals. Id.
¶19 Therefore, notwithstanding our direction in Johnson
that defendants claiming denial of their right to appeal apply
for relief under rule 65B(i) Utah Rules of Civil Procedure, the
Johnson remedy itself relied on coram nobis principles
unavailable solely through rule 65B(i).4
2. Johnson’s Postconviction Procedure Foundation
¶20 As previously discussed, in adopting coram nobis-type
relief in Johnson, we found “[t]he postconviction hearing
procedure” to be a successor to pleading the writ of coram nobis
and directed defendants to seek relief under rule 65B(i). 635
P.2d at 38. This was so because the 1977 version of rule 65B
abolished pleading “special forms of writs” in favor of “actions
under these Rules.” Utah R. Civ. P. 65B(a) (1977) (amended by
65B(b)(l)(1992)).
¶21 Additionally, rule 65B was well-suited as a procedural
avenue for seeking Johnson relief because it authorized the court

5 “Any person imprisoned . . . under a commitment of any
court . . . who asserts that in any proceedings which resulted in
his commitment there was a substantial denial of his rights under
the Constitution of the United States or the State of Utah, or
both, may institute a proceeding under this Rule.” Utah R. Civ.
P. 65B(i)(1977)(amended by 65B(b)(1) (1992)).
6 The court was permitted to “enter an appropriate
order . . . as the court may deem just and proper” if relief was
warranted. Utah R. Civ. P. 65B(i)(8)(amended by
65B(b)(11)(1992)).
7 Under the 1991 version of rule 65B(b)(1) and (11), a
defendant was permitted to institute a proceeding “result[ing]
from a substantial denial of rights” and courts were allowed to
“enter an appropriate order” for relief. Utah R. Civ. P. 65B
(1992) (amended 1996).
No. 20040453 8
to take action when there had been “a substantial denial of . . .
rights under the Constitution of the United States or of the
State of Utah,”5 Utah R. Civ. P. 65B(i)(1)(1977) (amended by
65B(b)(l) (1992)), including the constitutional right to appeal.
Upon finding such a denial, rule 65B(i) authorized a court to
enter as a remedy an appropriate order, such as an order for
Johnson resentencing.6 Id. 65B(i)(8).
¶22 Therefore, both the mechanism for filing a claim in the
criminal case and the remedy via a resentencing order were
available under the 1977 version of rule 65B(i), and even the
extensive 1991 amendments to rule 65B did not interfere with
this.7 However, in 1996, the Legislature enacted the PCRA and
this court subsequently substantially revised rule 65B, wherein
former rule 65B(i) (or, after 1991, rule 65B(b)) became, in
revised and expanded form, rule 65C. As we explain below, these
changes affected the relief available under Johnson and the
former rules.
¶23 For one thing, a defendant may no longer file a
petition pursuant to rule 65B(b) in “instances governed by Rule
65C.” Utah R. Civ. P. 65B(b)(1). In addition, the specific
grounds for which extraordinary relief may be sought under rule
65B are now enumerated in subsection (a) of that rule, and the
broad language permitting proceedings resulting from the
“substantial denial of rights,” constitutional or otherwise, no
longer exists. Id. 65B(b)(11).
¶24 Such language also does not appear in rule 65C, which
now “govern[s] proceedings in all petitions for post-conviction
relief filed under [the PCRA].” Id. 65C(a). The PCRA proclaims

8 Rather, it allows defendants to file postconviction relief
petitions under rule 65B if they do “not challenge a conviction
or sentence,” if they are “motions to correct a sentence pursuant
to rule 22(e),” or if they are petitions regarding the “actions
taken by the Board of Pardons and Parole.” Utah Code Ann. § 78-
35a-102(2) (1996).
9 No. 20040453
itself as a remedy “for any person who challenges a conviction or
sentence for a criminal offense and who has exhausted all other
legal remedies, including a direct appeal except as provided in
Subsection (2).” Utah Code Ann. § 78-35a-102(1) (2002).
Subsection (2) does not expressly address the situation where a
defendant has failed, for whatever reason, to timely file a
direct criminal appeal.8 Id. § 78-35a-102(2). Currently, rule
65C and the PCRA do not permit motions for Johnson relief for
defendants who have not filed a direct appeal because their right
to appeal has been unconstitutionally denied. While a defendant
who simply fails to file an appeal within the time limits
required by rule 4(a) of the Utah Rules of Appellate Procedure
would reasonably be considered to have exhausted any remedies he
might have obtained thereby for purposes of the PCRA, the same is
not true for a defendant who is unconstitutionally denied his
right to appeal. See State v. Penman, 964 P.2d 1157, 1166 (Utah
Ct. App. 1988) (Wilkins, J., concurring) (the “denial” of the
right to appeal consists of a defendant having “been prevented in
some meaningful way from proceeding with [his or her] appeal[]”).
Such a defendant must have a means of regaining that right. It
follows that there must be a mechanism for distinguishing those
defendants who have truly exhausted their remedy of direct appeal
from those whose right to appeal has been unconstitutionally
denied.
¶25 Therefore, the unintended result of the transformation
of rule 65B(i) since this court issued its decision in Johnson is
that a defendant who has been unconstitutionally denied a direct
criminal appeal may no longer seek Johnson relief under either
rule 65B or rule 65C and the PCRA. Because of this, and because
the Johnson remedy also independently relied on coram nobis
principles, we deem it inappropriate to continue to rely on the
Johnson remedy, and conclude that the restoration of a denied
direct appeal through resentencing to establish a new appeal time
frame is no longer feasible. Instead, we direct defendants who
claim denial of their right to appeal to follow the procedure set
forth below.

9 For example, New York replaced its Callaway holding, on
which we relied in Johnson, 635 P.2d at 38, with a rule of
criminal procedure. See N.Y. Crim. Proc. Law § 460.30 (McKinney
1970) (extending the time for taking an appeal, “upon the
improper conduct of a public servant or improper conduct, death,
or disability of the defendant’s attorney, or (b) inability of
the defendant and his attorney to have communicated, in person or
by mail, concerning whether an appeal should be taken, prior to
the expiration of the time within which to take an appeal due to
defendant’s incarceration in an institution and through no lack
of due diligence or fault of the attorney or defendant”); see
also Esters v. State, 894 So. 2d 755, 757 (Ala. Crim. App. 2003);
State v. Rosales, 66 P.3d 1263, 1267 (Ariz. Ct. App. 2003);
Garrison v. State, 711 A.2d 170, 175 (Md. 1998); State v. Meers,
671 N.W.2d 234, 236 (Neb. 2003).
No. 20040453 10
B. New Remedy for Restoring a Denied Criminal Appeal
¶26 Although we have determined that the remedy laid out in
Johnson, which requires resentencing to restore a denied appeal,
is no longer available, we conclude that we must provide a
readily accessible and procedurally simple method by which
persons improperly denied their right to appeal can promptly
exercise this right. Virtually all jurisdictions provide some
procedural mechanism for restoring a denied right to appeal, and
we have a particular interest in doing so because of our
constitutional mandate to provide a criminal appeal “in all
cases.” Utah Const. art. I, § 12. Further, failure to provide a
direct appeal from a criminal case implicates the guarantee of
due process under article I, section 7 of the Utah Constitution,
State v. Tuttle, 713 P.2d 703, 705 n.1 (Utah 1985), when a
defendant has “been prevented in some meaningful way from
proceeding” with a first appeal of right, Penman, 964 P.2d at
1166.
¶27 Since we have no remedy currently in place under the
PCRA or our rules of appellate procedure for reinstating an
unconstitutionally denied criminal appeal, we must again fashion
such a remedy, as we did in Johnson. A survey of procedures used
in other jurisdictions reveals that many provide a mechanism
through their postconviction remedy acts or rules of criminal or
appellate procedure.9 Others have established court rules that
assert jurisdiction over “appeals by leave” at the court’s
discretion, People v. Goecke, 547 N.W.2d 338, 341 (Mich. Ct. App.
1996), or grant a new appeal time frame through habeas corpus
petitions for out-of-time appeals, see, e.g., Odneal v. State,
161 S.W.3d 692, 694 (Tex. Crim. App. 2005); Bowman v. Washington,
605 S.E.2d 585, 589 (Va. 2004).

10 See, e.g., State v. Dreiling, 54 P.3d 475, 490 (Kan.
2002) (appeal was reinstated when defendant’s attorney promised
to file an appeal but failed to do so); State v. Parker, 934 P.2d
987, 991 (Kan. Ct. App. 1997) (Ortiz exceptions could not be
used to grant an appeal where “one does not exist by law”); State
v. Thomas, 900 P.2d 874, 876 (Kan. Ct. App. 1995) (the rule was
“developed in the interest of fundamental fairness” and therefore
a defendant does not qualify for the exception if that interest
would not be “substantially further[ed]”); State v. Cook, 741
P.2d 379, 381 (Kan. Ct. App. 1987) (defendant did not qualify for
the exceptions when the record revealed no evidence to support
the claim, and an evidentiary hearing was not required).
11 No. 20040453
¶28 While some jurisdictions continue the practice of
resentencing as a means of reinstating the time period for filing
an appeal, see, e.g., Jakoski v. State, 32 P.3d 672, 678 (Idaho
Ct. App. 2001); State ex. rel. Hahn v. Stubblefield, 996 S.W.2d
103 (Mo. Ct. App. 1999); State v. Tweed, 59 P.3d 1105, 1109
(Mont. 2002), others have found that such resentencing “tends to
create more problems than it resolves,” Boyd v. State, 282 A.2d
169, 171 (Me. 1971). We agree that resentencing is no longer a
preferred remedy. For one thing, our rules “governing amended
judgments” generally disfavor “enlarg[ing] the time for appeal”
by means of a “nunc pro tunc entry” which does not “chang[e] the
substance or character of the judgment.” State v. Garner, 2005
UT 6, ¶ 11, 106 P.3d 729. As the Johnson remedy was ultimately
designed to restore a denied right to appeal, we find it
appropriate to focus not on resentencing but on a more direct
mechanism to reinstate this right.
¶29 Having reviewed the differing procedural solutions
among jurisdictions, we conclude that Kansas’s approach is the
most useful. In Kansas, where “the filing of a timely notice of
appeal is [also] jurisdictional,” State v. Ortiz, 640 P.2d 1255,
1257 (Kan. 1982), the courts have developed a procedure, in the
interest of “fundamental fairness,” that provides for narrow
exceptions to the thirty-day jurisdictional rule that may open
the door to a new appeal time frame. Id. at 1258.
¶30 The Ortiz jurisdictional exceptions permit a defendant
to claim denial of the right to appeal in the trial court and to
establish the facts in support of this claimed denial by hearing
if necessary. Once the denial is established, Ortiz authorizes
courts to reinstate the appeal time frame, similar to the
operation of our Johnson remedy.10 While we do not adopt
Kansas’s specific procedures and relief (which are broader and
more complex than those we espouse), we view its approach of

11 We have distilled this list of exceptions from our case
law and a survey of those relied on in other jurisdictions. We
note that this list is not intended to be exclusive.
No. 20040453 12
establishing narrow exceptions by case law as serving the
interest of fundamental fairness and as an appropriate mechanism
to provide the relief granted in Johnson. The Maine Supreme
Court helpfully notes that restoring a right to appeal by direct
petition is appropriate because “‘[i]f the District Court has the
power to set aside the judgment and resentence, it certainly
would have the power to grant the right of appeal since it
accomplishes the results intended.’” Boyd, 282 A.2d at 172
(quoting Everett v. United States, 303 F. Supp. 1170 (C.D. Cal.
1969)); see also Thompson v. Commonwealth, 736 S.W.2d 319, 322
(Ky. 1987).
¶31 Accordingly, we hold that, upon a defendant’s motion,
the trial or sentencing court may reinstate the time frame for
filing a direct appeal where the defendant can prove, based on
facts in the record or determined through additional evidentiary
hearings, that he has been unconstitutionally deprived, through
no fault of his own, of his right to appeal. Such circumstances
would include: (1) the defendant asked his or her attorney to
file an appeal but the attorney, after agreeing to file, failed
to do so, see Johnson, 635 P.2d 36; (2) the defendant diligently
but futilely attempted to appeal within the statutory time frame
without fault on defendant’s part, see id.; or (3) the court or
the defendant’s attorney failed to properly advise defendant of
the right to appeal, see State v. Hallett, 856 P.2d 1060, 1061
(Utah 1993).11
¶32 Our resolution of this issue allows us to address the
second question before us on certiorari-–namely, whether a
defendant’s request for resentencing must be granted unless the
record demonstrates that the defendant knowingly and voluntarily
waived her right to appeal. We clarify that the State does not
bear this burden of proof. Rather, in a criminal case where a
defendant has failed to appeal within the required thirty-day
time period, the defendant bears the burden of proving she has
not knowingly or voluntarily waived the right to appeal. As was
required by the Johnson remedy, the defendant must demonstrate by
a “preponderence of evidence” that she qualifies for any of the
exceptions listed above. See Sullivan, 448 P.2d at 910. Only if
she succeeds in doing so will a court determine that she has been
unconstitutionally denied this right. In such a case, the trial
or sentencing court is directed to reinstate the appeal time
frame if doing so is in the interest of fundamental fairness.

12 For the sake of expediency, we do not require Manning to
file a new motion in the trial court under our new framework, nor
do we remand for an additional evidentiary hearing, as we believe
the record contains sufficient evidence to resolve Manning’s
claim.
13 See, e.g., State v. Anderson, 929 P.2d 1107, 1110 (Utah
1996) (right to appear and defend in person waived); State v.
Butterfield, 784 P.2d 153, 157 (Utah 1989) (right to public trial
waived); State v. Jamison, 767 P.2d 134, 138 (Utah 1989)(right to
jury trial waived) (abrogated on other grounds); State v. Wilson,
(continued...)
13 No. 20040453
The defendant must then file a notice of appeal within thirty
days of the date the trial court issues its order.
¶33 We expressly state that the procedure set forth here 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.” Ortiz, 640 P.2d at
1258. Thus, in the vast majority of cases where a defendant
fails to comply with the rule 4(a) thirty-day requirement for
filing a timely appeal, or with the rule 4(e) provision for
requesting an extension of the time to appeal “upon a showing of
excusable neglect or good cause,” the defendant will be held to
have waived his right to appeal and the claim will properly be
dismissed. State v. Bowers, 2002 UT 100, ¶ 5, 57 P.3d 1065;
State v. Palmer, 777 P.2d 521, 522 (Utah 1989).
II. MANNING’S CLAIM OF BEING DENIED AN APPEAL UNDER
THE NEW MANNING EXCEPTIONS
¶34 We now turn to Manning’s claim that she was deprived of
her constitutional right to appeal. In resolving this issue, we
must first consider the nature of Manning’s appeal rights and
then analyze them under the framework just established.12
¶35 A defendant who knowingly and voluntarily waives his
right to appeal has not been unconstitutionally denied that
right. State v. Mortensen, 73 P. 562, 566 (Utah 1903) (stating
that provisions in article I, section 12 of the Utah Constitution
are for the accused’s benefit, and can be waived). While “courts
generally indulge every reasonable presumption against waiver” of
constitutional rights, Bruner v. Carver, 920 P.2d 1153, 1155
(Utah 1996), a defendant found to have expressly waived them, by,
for example, entering a knowing and voluntary guilty plea where
the plea agreement expressly indicates such a waiver, no longer
enjoys the benefit of these constitutional protections.13

13 (...continued)
563 P.2d 792, 793 (Utah 1977)(right to counsel waived); State v.
Long, 506 P.2d 1269, 1270 (Utah 1973) (privilege against self-
incrimination waived); State v. Brocksmith, 888 P.2d 703, 706
(Utah Ct. App. 1994)(right to appeal waived by unconditional plea
agreement, foreclosing inquiry into loss of speedy trial rights
without withdrawal of guilty pleas); Duran v. Cook, 788 P.2d
1038, 1039 (Utah Ct. App. 1990) (right against being placed in
double jeopardy may be waived by a plea agreement).
No. 20040453 14
¶36 Manning cites Weaver v. Kimball, 202 P. 9, 10 (Utah
1921), for the proposition that defendants who enter guilty pleas
remain entitled to the article I, section 12 right to appeal. It
is true that a defendant does not waive the right to appeal
simply by entering a guilty plea. Id. However, it is well
established that this right 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. State v. Corwell, 2005
UT 28, ¶ 21, 114 P.3d 569. Any challenge to such a plea
agreement, or to the waivers contained therein, may only be
undertaken following a timely motion for withdrawal of the guilty
plea. State v. Reyes, 2002 UT 13, ¶ 3, 40 P.3d 630.
¶37 Manning waived the right to appeal her conviction by
entering a knowing and voluntary guilty plea pursuant to a plea
agreement that expressly indicated she would waive her right to
appeal. Manning could only contest this waiver by first filing a
timely motion to withdraw her guilty pleas and then establishing
that her pleas were not knowing and voluntary. Id. She was
correctly informed at her plea hearing that she had thirty days
to file a motion to withdraw her guilty pleas. Despite our
decision in State v. Ostler, which was issued after Manning’s
plea hearing and which clarified that the thirty-day time frame
for withdrawal of guilty pleas begins on the date of “final
disposition,” 2001 UT 68, ¶ 11, 31 P.3d 528, Manning has never
sought to withdraw her guilty pleas and admits she was not
prejudiced by this alleged failure to inform her at the time of
sentencing that she could withdraw her guilty pleas thirty days
from that date. Manning, 2004 UT App 87 ¶ 29 n.9. Since she
could not appeal her conviction or the knowing and voluntary
nature of her guilty plea, any remaining rights to appeal were
necessarily limited to appealing her sentence.
¶38 We analyze Manning’s remaining right to appeal her
sentence under the previously defined exceptions. The first

15 No. 20040453
exception applies when the defendant has asked her attorney to
file an appeal and, after agreeing to do so, the attorney fails
to file the appeal. The record clearly indicates that this
exception does not apply here. Manning met with her attorney
“three to four times after sentencing was imposed,” and “at no
time did she ask for him to pursue an appeal.” Manning’s
attorney “first learned about an appeal after it was filed”
fifty-seven days after sentencing. Prior to this, her attorney
did not know of Manning’s desire to pursue an appeal, never
agreed to file an appeal, and thus did not fail to file Manning’s
appeal.
¶39 The second exception applies when the defendant has
diligently but futilely attempted to appeal within the statutory
time frame without fault on the defendant’s part. This exception
also does not apply here. Manning’s untimely pro se attempt to
appeal was filed fifty-seven days after sentencing. The record
reveals no evidence that Manning made any attempt to pursue her
appeal within the statutory thirty-day time frame or that any
attempts were prevented or rendered futile without fault on her
part. Nor has Manning suggested any facts that would indicate
any interference that would have prevented her from filing her
appeal in a timely manner.
¶40 The third exception applies where the court and the
defendant’s attorney have failed to provide the defendant with
notice of the right to appeal. Manning had knowledge of her
constitutional right to appeal. Before entering her guilty plea,
Manning was advised by both the court and her attorney of her
right to appeal in accordance with rule 11(e). As described
above, Manning repeatedly acknowledged in her plea affidavit and
during the plea colloquy that her attorney had informed her that
her right to appeal was limited. We further conclude that
Manning’s attorney had no duty to further discuss with Manning
her limited appeal rights after sentencing, considering her
favorable sentence, the knowing and voluntary nature of her
guilty plea, and Manning’s express waiver in the plea agreement
of “some or all appeal rights.” Roe v. Flores-Ortega, 528 U.S.
470, 480 (2000) (rejecting a “bright-line rule that counsel must
always consult with the defendant regarding an appeal.”).
Manning has not suggested that she did not understand that she
did in fact have a right to appeal her sentence, nor that she had
any interest in challenging her sentence on appeal. Indeed,
given the fact that Manning received a favorable sentence as a
result of her guilty plea, it seems unlikely that she would have
any such interest. We therefore conclude that Manning’s attorney
sufficiently informed Manning of her right to appeal.

14 Rule 22(c) of the Utah Rules of Criminal Procedure states
that
upon a verdict or plea of guilty . . . the
court shall impose sentence and shall enter a
judgment of conviction which shall include
the plea or the verdict, if any, and the
sentence. Following 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.
15 Rule 22(e) states: “The court may correct an illegal
sentence, or a sentence imposed in an illegal manner, at any
time.” Utah R. Crim P. 22(e).
No. 20040453 16
¶41 Rule 22(c) of the Utah Rules of Criminal Procedure,
however, requires the court to notify the defendant after
sentencing of the right to appeal and the time limits for filing
such an appeal.14 Utah R. Crim. P. 22(c). There is no
indication in the record that the court complied with rule 22(c)
at the sentencing hearing. Again, however, the only appeal left
to Manning at that time was in regard to her sentence, and, as
just mentioned, Manning does not claim her right to appeal her
sentence has been denied. While the court’s failure to comply
with rule 22(c) may well qualify for the third exception where a
defendant has claimed that his right to appeal his sentence has
been denied, Manning has made no such claim. We further note
that rule 22(e) permits a motion to correct a sentence at any
time.15 Thus, should Manning wish to have her sentence reviewed,
relief remains available to her under that provision. As the
exceptions set forth above have been established in the interest
of fundamental fairness, and we do not believe these interests
are in any way furthered by granting a new appeal time frame
here, we deny Manning’s request to reinstate the time frame for
bringing an appeal.
CONCLUSION
¶42 A criminal defendant may no longer seek Johnson
resentencing to restore a denied right to appeal. Rather, we set
forth a new procedural mechanism for this purpose, requiring a
defendant to file a motion in the trial court for reinstatement
of a denied right to appeal under the exceptions outlined above.
These exceptions permit defendants to file a motion in their
underlying criminal cases in the trial court, thereby qualifying
them for assistance of counsel in restoring a denied right to
appeal pursuant to article I, section 12 of the Utah
Constitution. While defendants who fail to meet statutory

17 No. 20040453
timeliness requirements for bringing an appeal are generally
presumed to have waived their right to appeal, defendants may
prove they have not knowingly or voluntarily waived their
constitutional rights to appeal by establishing that they have
been unconstitutionally deprived, through no fault of their own,
of their right to appeal. The right to appeal may then be
restored if it is in the interest of fundamental fairness to do
so. The defendant in this case has failed to demonstrate a
constitutional denial of her right to appeal that justifies
restoration of the appeal time frame under this new procedure.
---
¶43 Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.