State of Utah, Plaintiff/Appelle, v. Michael L. Paolone, Defendant/Appellant : Brief of Appellant

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Brigham Young University Law School

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Utah Court of Appeals Briefs

2005

State of Utah, Plaintiff/Appelle, v. Michael L.

Paolone, Defendant/Appellant : Brief of Appellant

Utah Court of Appeals

Follow this and additional works at:https://digitalcommons.law.byu.edu/byu_ca2 Part of theLaw Commons

Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generated OCR, may contain errors.

Mark L. Shurtleff; Utah Attorney General; J. Frederic Voros, Jr.; Assistant Attorney General; Attorneys for Appellee.

Scott L. Wiggins; Arnold & Wiggins; Attorneys for Appellant.

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Brief of Appellant, Utah v. Paolone, No. 20051142 (Utah Court of Appeals, 2005). https://digitalcommons.law.byu.edu/byu_ca2/6197

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ORIGINAL

IN THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff / Appellee,

v.

MICHAEL L. PAOLONE,

Defendant / Appellant

Case No. 20051142-CA

BRIEF OF APPELLANT

Appeal from Ruling on Defendant's Motions for Reinstatement of Direct Appeal Nunc Pro Tunc and Appointment of Counsel entered November 16, 2006, in the Second District Court, Davis County,

the Honorable Rodney S. Page, presiding.

SCOTT L WIGGINS (5820) ARNOLD Sc WIGGINS, P.C. American Plaza II, Suite

57 West 200 South

Salt Lake City, UT 84101 Attorneys for Appellant

105

MARK L. SHURTLEFF UTAH ATTORNEY GENERAL J. FREDERIC VOROS, JR. ASSISTANT ATTORNEY GENERAL

160 East 300 South, 6th Floor P.O. Box 140854

Salt Lake City, UT 84114-0854

Attorneys for Appellee bi... \.s \J URTS

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{jjr^i

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1. AppellanL, Appeliee/Cross-appellant: 50 pages 2. Appellant/Cross-appellee Reply: 25 pages 3. Appeliee/Cross-appellant Reply: 25 pages 4. Guardian ad LiLem or Intervener: 50 pages 5.. Amicus Curiae No Limit ^ SIZE AND BINDING

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*/ 2. Name of counsel and parties represented a. Counsel filing brief on lower right b. Opposing counsel on lower left CONTENT REQUIREMENTS - IN ORDER STATED ^ List of all parties

\^ Table of Contents with page references y^l Table of Authorities

Jurisdictional Statement (Mandatory for Appellant)

Statement of Issues & Standard of Review (Mandatory for Appellant) 1. Citation to record showing issue preserved in Trial court; or

v X

v ^

2. Statement of grounds for seeking review of issue noi preserved in Trial Court Constitutional or Statutory Provisions

V Statement of Case (Mandatory for Appellant) "S Statement of Facts

x/ Summary of Argument \/^ Argument

Conclusion

\ X Signature of counsel of record OR party if Pro Se \ X .Proof of Service

\y Addendum: Findings of fact; memorandum decision; final order; Court of Appeals opinion when Petition for Certiorari is granted (Mandatory for Appellant)

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IN THE UTAH COURT OF APPEALS STATE OF UTAH, Plaintiff / Appellee, v. MICHAEL L. PAOLONE, Defendant / Appellant

Case No. 20051142-CA

BRIEF OF APPELLANT

Appeal from Ruling on Defendant's Motions for Reinstatement of Direct Appeal Nunc Pro Tunc and Appointment of Counsel entered November 16, 2006, in the Second District Court, Davis County,

the Honorable Rodney S. Page, presiding.

SCOTT L WIGGINS (582 0) ARNOLD & WIGGINS, P.C. American Plaza II, Suite

57 West 200 South

Salt Lake City, UT 84101

Attorneys for Appellant

105

MARK L. SHURTLEFF UTAH ATTORNEY GENERAL J. FREDERIC VOROS, JR. ASSISTANT ATTORNEY GENERAL

160 East 300 South, 6th Floor P.O. Box 140854

Salt Lake City, UT 84114-0854

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TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

STATEMENT OF JURISDICTION. . 1

STATEMENT OF ISSUES / STANDARDS OF REVIEW . . . 1

DETERMINATIVE AUTHORITY 2

STATEMENT OF THE CASE 2

STATEMENT OF FACTS 4

SUMMARY OF ARGUMENTS 7

ARGUMENTS

I. THE DISTRICT COURT MISINTERPRETED THE UTAH

SUPREME COURT'S DECISION IN MANNING v. STATE

AND THE UTAH RULES OF APPELLATE PROCEDURE IN

THE COURSE OF DENYING MR. PAOLONE'S MOTION FOR REINSTATEMENT OF THE DENIED RIGHT TO

APPEAL . . .8

A. The Manning Remedy 8

B. The District Court's Ruling 10 C. Constitutional Right to Appeal 13

CONCLUSION 13

ADDENDA 16

Addendum A: Letter from Mr. Paolone to Judge Allphin, date-stamped 07/19/96

Addendum B: Letter from Judge Dawson to Mr. Paolone, dated July 10, 1996

Addendum C: Motion for Reinstatement of Direct Appeal Nunc Pro Tunc

Addendum D: Motion for Appointment of Counsel for Motion to Reinstate Appeal

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Reinstatement of Direct Appeal Nunc Pro Tunc and Appointment of Counsel

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TABLE OF AUTHORITIES CASES CITED

Page(s)

State Cases

Hartford Leasing Corp. v. State, 888 P.2d 694 (Utah Ct.

App. 1994), cert, denied, 899 P.2d 1231 (Utah 1995) 1,11

In re B.B., 2002 UT App 82, 45 P.3d 527, aff'd, 94 P.3d

252 (Utah 2004) 12

Loporto v. Hoegemann, 982 P.2d 586 (Utah Ct. App. 1999) 1,11

Lundahl v. Quinn, 2003 UT 11, 67 P.3d 1000 12

Manning v. State, 2005 UT 61, 122 P. 3d 628 in passim

State v. Hallett, 856 P.2d 1060 (Utah 1993) 10

State v. Penman, 964 P. 2d 1157 (Utah Ct. App. 1998) 13

State v. Rees, 2005 UT 69, 125 P.3d 874 9

State v. Tuttle, 713 P.2d 703 (Utah 1985) 13

State v. Valdovinos, 2003 UT App 432, 82 P. 3d 1167 12

Sullivan v. Turner, 22 Utah 2d 85, 448 P.2d 907 (1968) 10

Federal Cases

Carpenter v. Young, 50 F.3d 869 (10th Cir. 1995) . 13

Harris v. Champion, 48 F.3d 1127 (10th Cir. 1995) 13

STATUTES CITED

Utah Code Ann. § 76-5-4 04 (1) 4

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Utah Code Ann. § 76-5-406 (11) 4

Utah Code Ann. § 78-2a-3 (2) (e) (2002) 1

COURT RULES CITED

Utah R. App. P. 4(c) 8,11,12

CONSTITUTIONAL PROVISIONS CITED

Utah Const. art. I, § 12 9

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STATEMENT OF JURISDICTION

The Utah Court of Appeals is conferred with jurisdiction over

the instant appeal pursuant to Utah Code Ann. § 78-2a-3(2) (e)

(2002) .

STATEMENT OF ISSUES / STANDARDS OF REVIEW

1. Whether the district court misinterpreted the Utah

Supreme Court's decision in Manning v. State and the Utah Rules of

Appellate Procedure in the course of denying Mr. Paolone's Motion

for reinstatement of the denied right to appeal. Questions

involving a trial court's interpretation of common law and rules

are questions of law that the appellate court is well-suited to

address, thus giving no deference to the lower court. See

Trujillo v. Jenkins, 840 P.2d 777, 778-79 (Utah 1992); State v.

Richardson, 843 P.2d 517, 518 (Utah Ct. App. 1992) (stating that

"we consider the trial court's interpretation of binding case law

as presenting a question of law and review the trial court's

interpretation of that law for correctness."); Loporto v.

Hoegemann, 982 P. 2d 586, 587 (Utah Ct. App. 1999) (quoting

Hartford Leasing Corp. v. State, 888 P.2d 694, 697 (Utah Ct. App.

1994, cert, denied, 899 P.2d 12,31 (Utah 1995)).

Preservation of Issue Citation or Statement of Grounds for Review:

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Reinstatement of Direct Appeal Nunc Pro Tunc set forth at R.

160-63.

DETERMINATIVE AUTHORITY

The constitutional provisions, statutes, ordinances, rules,

regulations, or case law whose interpretation is determinative,

are set out verbatim, with the appropriate citation, in the body

and arguments of the instant Brief of Appellant.

STATEMENT OF THE CASE

This case involves a misinterpretation of the Utah Supreme

Court's decision in Manning v. State as well as the Utah Rules of

Appellate Procedure. These misinterpretations, as demonstrated

below, denied Mr. Paolone of his constitutional right to an

appeal.

The State charged Defendant with one count of Forcible Sexual

Abuse, a second-degree felony. Defendant subsequently appeared

before the trial court for a jury trial. That same day the jury

returned a verdict of guilty. The court ordered a presentence

investigation report and set sentencing.

Shortly thereafter, Defendant wrote a letter addressed to the

trial court, requesting, among other things, an appeal on the

conviction of Forcible Sexual Abuse. The trial court responded,

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31, 1996 @ 9:00 am. That is the only matter before this Court.

A copy of your letter will be given to Judge Dawson for his

information as he is the Judge who will hear the other cases."

Defendant's letter was filed in another case pending before Judge

Dawson.

The trial court sentenced Defendant to an indeterminate term

of one to fifteen years in the Utah State Prison to run

consecutive to the sentences imposed in Case Nos. 961700440 and

961700441.

On October 25, 2005, Defendant filed a Motion for

Reinstatement of Direct Appeal Nunc Pro Tunc. Defendant also

filed a Motion for Appointment of Counsel for Motion to Reinstate

Appeal.

On November 16, 2005, the district issued a Ruling on

Defendant's Motions for Reinstatement of Direct Appeal Nunc Pro

Tunc and Appointment of Counsel, denying the Motions. Mr. Paolone

forwarded a timely pro se Notice of Appeal to the district court,

which was filed on December 16, 2005.

On April 5, 2 006, this Court temporarily remanded the case to

the district court for a determination of Mr. Paolone's indigency

status and, if appropriate, for the appointment of counsel. On

remand, the district court found Mr. Paolone indigent and

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STATEMENT OF FACTS

1. On or about March 21, 1996, the State charged Mr.

Paolone with one count of Forcible Sexual Abuse, a second-degree

felony, in violation of Utah Code Ann. §§ 404(1) and

76-5-406 (10) & (11) (R. 3) ,x

2. On June 21, 1996, Mr. Paolone appeared before the trial

court, Judge Michael G. Allphin, for a jury trial (R. 2 2 ) . After

its deliberation the afternoon of that same day, the jury returned

a verdict of guilty (R. 23 and R. 55) .

3 . The trial court ordered the preparation of a presentence

investigation report, scheduling the sentencing for July 31, 1996

(R. 192:115:6-8) .

4. On July 8, 1996, Mr. Paolone wrote a letter addressed to

Judge Allphin, discharging trial counsel, asserting his innocence,

and requesting that he be allowed to represent himself in further

proceedings (R. 3 97) . See Letter from Mr. Paolone to Judge

Allphin, date stamped 07/19/96, a true and correct copy of which

is attached hereto as Addendum A. Mr. Paolone concluded the

letter "requesting a change of venue, a court appointed attny

[sic] . . . and an appeal on the conviction of Forcible Sexual

xThe record on appeal does not include the Information by which

Mr. Paolone was charged. Consequently, the record citation is to the Warrant of Arrest and Affidavit in Support of Warrant of Arrest referencing the Information having been filed.

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Abuse on the grounds of insufficient legal representation and

biased jury." Id. at R. 399.

5. Judge Allphin responded in writing to Mr. Paolone's

letter, "You are free to represent yourself at the Sentencing

Hearing July 31, 1996 @ 9:00 am. That is the only matter before

this Court. A copy of your letter will be given to Judge Dawson

for his information as he is the Judge who will hear the other

cases."2 (R. 57). See Letter from Judge Dawson to Mr. Paolone,

dated July 10, 1996, a true and correct copy of which is attached

hereto as Addendum B.

6. Although Mr. Paolone's letter requesting an appeal

referenced the jury trial and conviction for Forcible Sexual

Abuse, it was filed (R. 397-400) in another case pending before

Judge Dawson. See State v. Paolone, Case No. 961700400 FS (R.

362-440) .

7. At sentencing on August 14, 1996, the trial court

sentenced Mr. Paolone to an indeterminate term of one to fifteen

years in the Utah State Prison to run consecutive to the sentences

imposed in Case Nos. 961700440 and 961700441 (R. 73) .

2At the same time as the instant case, Mr. Paolone had three

other cases pending before Judge Glen R. Dawson. See State v.

Paolone, Case No. 961700439 FS (R. 219-361), State v. Paolone, Case

No. 961700440 FS (R. 362-430), and State v. Paolone, Case No. 961700441 FS (R. 431-475).

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8. In a second letter written by Judge Allphin to Mr.

Paolone on December 16, 1996, regarding another matter, the court

acknowledged that Mr. Paolone "raised the issue of an appeal to

your criminal conviction." (R. 8 3 ) .

9. On October 25, 2005, Mr. Paolone filed a Motion for

Reinstatement of Direct Appeal Nunc Pro Tunc (R. 160-63) . See

Motion for Reinstatement of Direct Appeal Nunc Pro Tunc, R.

160-63, a true and correct copy of which is attached hereto as

Addendum C.

10. Shortly thereafter, Mr. Paolone filed a Motion for

Appointment of Counsel for Motion to Reinstate Direct Appeal (R.

164-66). See Motion for Appointment of Counsel for Motion to

Reinstate Direct Appeal, a true and correct copy of which is

attached hereto as Addendum D.

11. On November 16, 2005, the district issued a Ruling on

Defendant's Motions for Reinstatement of Direct Appeal Nunc Pro

Tunc and Appointment of Counsel, denying the Motions (R. 168-81) .

See Ruling on Defendant's Motions for Reinstatement of Direct

Appeal Nunc Pro Tunc and Appointment of Counsel, R. 168-81, a true

and correct copy of which is attached hereto as Addendum E.

12. On or about November 23, 2 005, Mr. Paolone forwarded a

timely pro se Notice of Appeal to the district court, which was

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Appeal, R. 183-85, a true and correct copy of which is attached

hereto as Addendum F.

13. On April 5, 2006, this Court temporarily remanded the

case to the district court for a determination of Mr. Paolone's

indigency status and, if appropriate, for the appointment of

counsel (R. 197) .

14. On remand, the district court found Mr. Paolone indigent

and appointed the undersigned as counsel on appeal (R. 198-99).

SUMMARY OF ARGUMENTS

1. The district court misinterpreted the Utah Supreme

Court's decision in Manning v. State in the course of denying Mr.

Paolone's Motion for reinstatement of the denied right to appeal.

Not only did the court misinterpret Manning, but it misinterpreted

the Utah Rules of Appellate Procedure in the course of denying the

Motion.

The second exception or circumstance cited in Manning applies

in the instant case. Mr. Paolone diligently but futilely

attempted to appeal within the statutory time frame without fault

on defendant's part.

The district court misinterpreted Utah Rule of Appellate

Procedure 4 in the course of denying Mr. Paolone's Motion by

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because it was received by the court after Mr. Paolone was

convicted but before he was sentenced. By so ruling, the district

court ignored subsection (c) of Rule 4 of the Utah Rules of

Appellate Procedure. Finally, the district court's determination

that Mr. Paolone's pro se notice of appeal was invalid because it

was sent to the trial judge rather than the clerk was unduly

restrictive and ran afoul of the liberal treatment to be applied

to notices of appeal, especially those filed by pro se litigants.

The failure to provide a direct appeal from a criminal case

implicates the guarantee of due process under the Utah

Constitution. In the instant case, Mr. Paolone was denied his

constitutional right to appeal by the erroneous filing and failure

by the court to adjudicate the pro se notice of appeal.

ARGUMENTS

I. THE DISTRICT COURT MISINTERPRETED THE UTAH

SUPREME COURT'S DECISION IN MANNING v. STATE

AND THE UTAH RULES OF APPELLATE PROCEDURE IN THE COURSE OF DENYING MR. PAOLONE'S MOTION FOR REINSTATEMENT OF THE DENIED RIGHT TO APPEAL.

A. The Manning Remedy

In Manning v. State, 2005 UT 61, 122 P. 3d 628, the Utah

Supreme Court "erected a sturdier, less contrived framework for a

defendant who has been unconstitutionally denied his right to

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v. Rees, 2005 UT 69, 1(13, 125 P. 3d 874. In Manning, the Utah

Supreme Court "filled the void created by the demise of the

Johnson post-conviction hearing procedure with a procedure crafted

in no small measure of parts taken from the writ of error coram

nobis, most prominently its guarantee of appointed counsel." Id.

at 1fl4. The purpose of the Manning remedy is to "provide a

readily accessible and procedurally simple method by which persons

improperly denied their right to appeal can promptly exercise this

right." Manning, 2005 UT 61 at f26. Moreover, the purpose of the

remedy is to protect the constitutional right to a criminal appeal

"in all cases." See Utah Const, art. I, § 12.3

In Manning, the Utah Supreme Court held that

[U]pon 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

3Article I, section 12, of the Utah Constitution states that

"[i]n all criminal prosecutions the accused shall have . . . the right to appeal in all cases."

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of the right to appeal, see State v. Hallett,

856 P.2d 1060, 1061 (Utah 1993).4

Manning, 2005 UT 61 at f31. " [T]he defendant must demonstrate by

a 'preponderance of evidence' that [he or] she qualifies for any

of the exceptions listed above." Id. at 1(32 (citing Sullivan v.

Turner, 22 Utah 2d 85, 448 P.2d 907, 910 (1968)). If the

defendant succeeds, "the trial or sentencing court is directed to

reinstate the appeal time frame if doing so is in the interest of

fundamental fairness." Id.

B. The District Court's Ruling

In the case at bar, the district court, by virtue of a

tortured interpretation of insignificant distinctions in facts

between Manning and this case, initially concluded that Manning

"is not directly on point." See Ruling on Defendant's Motions for

Reinstatement of Direct Appeal Nunc Pro Tunc and Appointment of

Counsel, R. 174. In addition, the district court concluded that

Mr. Paolone "cannot meet his burden because if [Mr. Paolone] was

deprived of this right to appeal at all, it was due to [Mr.

Paolone's] delay in properly filing a notice of appeal." Id.

The "second exception" or "circumstance" cited in Manning

applies in the instant case. See Manning v. State, 2005 UT 66,

4The Utah Supreme Court, by footnote to this quotation from the

Manning case, noted "that this list is not intended to be exclusive."

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1(31, 122 P.2d 628. By filing his pro se letter or notice of

appeal on or about July 8, 1996, Mr. Paolone diligently attempted

to appeal within the statutory time frame by informing the

district court, in no uncertain terms, of his desire to appeal the

conviction of Forcible Sexual Abuse. See Utah R. App. P. 4(c) .5

The court forwarded the pro se notice of appeal letter to the

clerk for filing, who apparently filed the appeal letter in the

wrong case.

The district court also misinterpreted Utah Rule of Appellate

Procedure 4 in the course of denying Mr. Paolone's Motion for

reinstatement of denied right to appeal. A district court's

interpretation of a rule is a question of law reviewed for

correction of error. See Loporto v. Hoegemann, 982 P.2d 586, 587

(Utah Ct. App. 1999) (quoting Hartford Leasing Corp. v. State, 888

P.2d 694, 697 (Utah Ct. App. 1994), cert, denied, 899 P.2d 1231

(Utah 1995)).

In its Ruling, the district court ignored subsection (c) of

Rule 4 of the Utah Rules of Appellate Procedure, concluding that

Mr. Paolone's pro se notice of appeal was "untimely as it was

received by Judge Allphin after the defendant was convicted but

5Utah Rule of Appellate Procedure 4(c) provides that "a notice

of appeal filed after the announcement of a decision, judgment, or order but before the entry of the judgment or order of the trial court shall be treated as filed after such entry and on the day thereof."

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before the defendant was sentenced." (R. 178). The court also

determined that by failing to "re-file a Notice of Appeal after he

was sentenced," Mr. Paolone "failed to preserve his right to

appeal" (Id.) and that ua subsequent notice was required by Utah

case law and the Utah Court Rules to have been filed after the

defendant was sentenced and not before." (R. 179).

According to the plain language of Utah Rule of Appellate

Procedure 4(c), "a notice of appeal filed after the announcement

of a decision, judgment, or order but before the entry of the

judgment or order of the trial court shall be treated as filed

after such entry and on the day thereof." Consequently, the pro

se notice of appeal in the instant case was as valid as any notice

of appeal filed within 30 days after sentencing.

Finally, the district court's determination that Mr.

Paolone's pro se notice of appeal in the form of a letter was

invalid because it was sent to the trial judge rather than the

clerk of the court was unduly restrictive and ran afoul of the

liberal treatment to be applied to notices of appeal, especially

those filed by pro se litigants. See State v. Valdovinos, 2003 UT

App 432, fl7, 82 P.3d 1167; In re B.B., 2002 Ut App 82, f9, 45

P. 3d 527; Lundahl v. Quinn, 2003 UT 11, %3, 61 P. 3d 1000.

Moreover, this notion is contradicted by the fact that the trial

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evinced by the file date-stamp applied to the document by the

clerk's office.

C. Constitutional Right to Appeal

The "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," see State v. Tuttle, 713 P.2d 703,

705 n.l (Utah 1985), "when a defendant has 'been prevented in some

meaningful way from proceedings' with a first appeal of right."

See State v. Penman, 964 P.2d 1157, 1166 (Utah Ct. App. 1998). In

the instant case, Mr. Paolone was denied his constitutional right

to appeal by the erroneous filing and failure by the court to

adjudicate the pro se notice of appeal. See Harris v. Champion,

48 F.3d 1127, 1132 (10th Cir. 1995) (establishing presumption of

prejudice when delay in adjudicating appeal attributable to the

state exceeds two years); Carpenter v. Young, 50 F.3d 869, 870-71

(10th Cir. 1995) (delay of two or more years calculated from

filing of notice of appeal).

CONCLUSION

Based on the foregoing, Mr. Paolone respectfully requests

that this Court reverse the district court's denial of his Motion

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reinstatement of the time frame for filing a direct appeal so as

to allow him to pursue his right to a meaningful appeal.

RESPECTFULLY SUBMITTED this 18th day of December, 2006.

ARNOLD A WIGGINS, P.C.

J S c o t t L ^ i g g f c h s

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CERTIFICATE OF SERVICE

I, SCOTT L WIGGINS, hereby certify that I personally caused to be hand-delivered two (2) true and correct copies of the foregoing BRIEF OF APPELLANT to the following on this 22nd day of December, 2 006:

Mr. J. Frederic Voros, Jr. Assistant Attorney General

160 East 300 South, 6th Floor P.O. Box 140854

Salt Lake City, UTp^4114-0854

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ADDENDA

Addendum A: Letter from Mr. Paolone to Judge Allphin, date-stamped 07/19/96

Addendum B: Letter from Judge Dawson to Mr. Paolone, dated July 10, 1996

Addendum C: Motion for Reinstatement of Direct Appeal Nunc Pro Tunc

Addendum D: Motion for Appointment of Counsel for Motion to Reinstate Appeal

Addendum E: Ruling on Defendant's Motions for Reinstatement of Direct Appeal Nunc Pro Tunc and Appointment of Counsel

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FILED

NOV 1 6 2005 I

SECOND DISTRICT COURT

IN THE SECOND DISTRICT COURT, DAVIS COUNTY

STATE OF UTAH

STATE OF UTAH Plaintiff, vs. MICHAEL L. PAOLONE Defendant.

RULING ON DEFENDANT'S MOTIONS FOR REINSTATEMENT OF DIRECT APPEAL NUNC PRO TUNC and APPOINTMENT OF COUNSEL

Case No. 961700208 Judge: Rodney S. Page

This matter is before the Court on the defendant's Motions for Reinstatement of Direct Appeal Nunc Pro Tunc and Appointment of Counsel. The Court has reviewed the moving papers together with supporting documents and for the reasons set forth below DENIES, both Motions.

BACKGROUND

The defendant has an extensive history with the Second District Court that began with four criminal cases against the defendant in 1996. On March 21, 1996, the defendant was charged by Information in Davis County, Utah, with one count of Forcible Sexual Abuse, a second-degree felony (case no. 961700208). Following a jury trial on June 21, 1996, the defendant was found guilty as charged. The defendant did not file any direct appeal of his conviction. However, prior to sentencing, the defendant sent a letter to the trial judge seeking:

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1) a change of venue, 2) new counsel, and 3) an appeal of his jury conviction based on ineffectiveness of counsel and potential jury bias.

On June 7, 1996, the defendant was charged by Information with the commission of several other felonies: aggravated assault (a third degree felony) and discharging a firearm from a vehicle (a third degree felony) in case no. 961700439; use of an explosive device (a first degree felony) and arson (a third degree felony) in case no. 961700440; attempted theft of a vehicle and forgery (both third degree felonies) in case no. 961700441. On July 17, 1996, the defendant pled guilty to arson (case no. 961700440), attempted theft of a vehicle (961700441), and forgery (961700441). All remaining charges were dismissed pursuant to a plea bargain. At the plea hearing, the defendant moved the court to withdraw his previously filed letter, mentioned above. It should be noted that at a hearing two days prior (July 15, 1996), Judge Glen Dawson advised the defendant that the "appropriate time to file a notice of appeal from that case [961700208] is within the 30 day period following sentencing on that case." Transcript of Proceedings in Case No. 961700440, at page 5, lines 15-19. The defendant was sentenced on August 14, 1996 for his convictions in case nos. 961700208, 961700440 and 961700441.

On February 27, 1997, the defendant filed a petition for post-conviction relief in the Second District Court (case no. 970700092), seeking to challenge both his conviction for forcible sexual abuse in 961700208 and the validity of his guilty pleas in 961700440 and 961700441. The trial court ordered the respondent State of Utah to respond to certain issues, including whether the defendant directed his trial counsel to appeal his conviction for forcible sexual abuse and whether the trial counsel failed to do so. An evidentiary hearing was held on the issue on June 25, 1998. At the hearing, the court found that the defendant's trial counsel in the criminal trial had discussed the issue of appeal with the defendant on several occasions and that after the

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discussions, the defendant indicated he did not have a desire to appeal his conviction. The court determined that the defendant indicated to two different courts that he was satisfied with his counsel and wished his counsel to continue his representation. The court entered an Order dismissing the petition for post-conviction relief on August 10, 1998.

The defendant appealed the dismissal of his petition in 970700092 to the Utah Court of Appeals (case no. 981441-CA). On November 6, 1999, the Court of Appeals affirmed the trial court's dismissal of the petition for post-conviction relief. The defendant did not file any petition for writ of certiorari with the Utah Supreme Court for a review of the Court of Appeals' decision.

On November 2, 2000, the defendant filed a federal petition for writ of habeas corpus (case no. 00-CV-787). The petition was dismissed on September 24, 2001 because it was not filed within the statute of limitations period.

On August 10, 2001, the defendant filed a new petition for post-conviction relief (case no. 010700442), challenging his conviction in 961700208. The defendant alleged that a juror in his criminal case personally knew the defendant and gave dishonest answers during the court's voir dire so that the juror could place himself on the jury with the intent to convict the defendant. The defendant also alleged that this same juror was not a resident of Davis County at the time of his jury service, and thus, the juror was not qualified to be empanelled as a member of the jury. The defendant then amended his petition to argue ineffective assistance of counsel. The court dismissed the petition for post-conViction relief because the defendant had alleged ineffective assistance of counsel in a previous petition for post-conviction relief and because the defendant did not show a violation of the United States Constitution or the Utah State Constitution—the only ground upon which post-conviction relief could have been granted. See Utah Code Ann. § 78-35a-104(l)(a)(2001).

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On July 5, 2002, the defendant filed a Petition for Writ of Habeas Corpus with the Utah Court of Appeals, pursuant to Utah R. App. P. 20(a). The Court of Appeals referred the petition to the Second District Court (also, pursuant to Rule 20(a)) and the petition was filed with the Second District on July 19, 2002. In that petition, the defendant argued: 1) that the Utah Attorney General committed "extrinsic fraud" against the defendant in order to deny the defendant's statutory right to appeal his conviction in case no. 961700208; 2) that the Attorney General misled the court as to trial counsel's actions pertaining to the notice of appeal by defendant acting pro se\ and 3) that defendant's criminal trial counsel had proffered to the court that defendant's notice of appeal was not withdrawn by trial counsel and that the defendant had indeed preserved his right to appeal, but that the court took no action to rectify this due process violation of the defendant's rights. The court dismissed the defendant's third argument as frivolous on its face. See Utah R. Civ. P. 65C(g). The court dismissed the other grounds for post-conviction relief cited by the defendant because the defendant showed no good cause for the reason his new arguments were not included in his two prior petitions for post-conviction relief, as required by Utah Code Ann. § 78-35a-1006(l)(d) and Andrews v. Shulsen, 113 P.2d 832 (Utah 1998).

On January 28, 2005, the defendant filed yet another petition for post-conviction relief (case no. 050700051). In that petition, the defendant alleged that the trial court held ex parte communications with a biased juror, that the court knowingly empanelled that biased juror, and that his trial counsel was ineffective due to the fact that he failed to question that juror about any possible bias he may have had against the defendant. This Court denied the petition because it was filed beyond the statute of limitations found in Utah Code Ann. § 78-35a-107(l); because the defendant's cited grounds for relief were not covered by the Post Conviction Relief Act, Utah

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Code Ann. § 78-35a-104; because the defendant's claims had been previously adjudicated; and

because the defendant failed to show good cause for the reasons the new claims were not argued in the defendant's three previous petitions for post-conviction relief. The defendant filed a Notice to Appeal this decision on September 30, 2005. The appeal is currently pending.

In September 2005, the Supreme Court handed down Manning v. State, 2005 UT 61. This opinion addresses a new method for courts to follow when a defendant has alleged an unconstitutional deprivation of his right to appeal. Pursuant to Manning, the defendant has filed this Motion for Reinstatement of Direct Appeal Nunc Pro Tunc.

ANALYSIS

The defendant here is alleging that he was unconstitutionally deprived of his right to appeal when he had mentioned in the July 8, 1996 letter to Judge Allphin that he wished to appeal his conviction of Forcible Sexual Abuse. The defendant states that this was a. pro se notice of appeal and that the letter was adequate to preserve the defendant's right to appeal.

Utah R. App. P. 4(a) states that, "[i]n a case in which an appeal is permitted as a matter of right

from the trial court to the appellate court, the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from." However, the Utah Supreme Court has recognized that in certain situations a defendant can be unconstitutionally deprived of his right to appeal when a notice of appeal is not filed within the 30-day time period* and the failure to timely file cannot be attributed to the defendant's conduct.

Prior to the recent Manning decision, the Supreme Courts had fashioned a remedy to this predicament in State v. Johnson, 635 P.2d 36 (Utah 1981). Johnson provided a procedural mechanism to restore a defendant's unconstitutionally denied right to appeal his conviction when

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a notice of appeal was not timely filed and the defendant was not at fault. Defendants were directed, by Johnson, 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." Manning at \ 12 {citing Johnson, 635 P.2d at 38).

However, the court in Manning changed this procedure in order to "provide a readily accessible and procedurally simple method by which persons improperly denied their right to appeal can promptly exercise this right." Id. at 1J 26. As a result of this change, a defendant must make a motion to the trial or sentencing court and that 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." Id. at ^ 31 (internal citations omitted). The Manning Court stressed that it is the "defendant [that] bears the burden of proving she has not knowingly or voluntarily waived the right to appeal.. .by a preponderance of evidence." Id. at ^ 32.

Finally, Manning says that the Supreme Court,

expressly state[s] that the procedure set forth here is not available to a defendant properly informed of his appellate rights who simply lets the matter rest, and then claims that he did not waive his right to appeal. Thus, in the vast majority of cases where a defendant fails to comply with the rule 4(a) thirty-day requirement of 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.

Id. at H33.

It should be noted that Manning deals with a situation where a defendant pled guilty to crimes charged against her in exchange for the dropping of other charges pursuant to a plea bargain. This is not the situation presented here—the defendant was convicted of the crime of

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Forcible Sexual Abuse by a jury and did not plead guilty to this charge. While the defendant did plead guilty to crimes charged in related cases pursuant to a plea bargain (case nos. 961700440, 961700441), the defendant has filed this Motion for reinstatement of time to appeal his

conviction by the jury in 961700208. Thus, Manning is not directly on point.

Even if it were on point, Manning requires the defendant to prove, by a preponderance of the evidence, that he has been unconstitutionally deprived of his right to appeal through no fault of his own. The defendant cannot meet this burden because if the defendant was deprived of his right to appeal at all, it was due to the defendant's delay in properly filing a notice of appeal.

Manning contemplates three different situations where a defendant might be unconstitutionally deprived 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; (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. at K 31. It seems clear that the defendant is not bringing this motion based upon the first situation enumerated in Manning—the situation where a defendant requests his attorney to file an appeal and the attorney failed to do so. Id. The defendant has previously made the argument that his trial counsel consistently failed to file an appeal even after counsel agreed to do so. However, the defendant's current motion makes no reference to any alleged failure of trial counsel to file a notice of appeal with the court.

Further, the defendant does not appear to base this motion on the third situation

enumerated in Manning where "the court or the defendant's attorney failed to properly advise the defendant of the right to appeal." Id. It is true, the defendant's trial counsel did have a duty to advise the defendant of his right to appeal his conviction. From the record presented in case no.

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970700092, it is clear that the defendant's trial counsel, Mr. Redd, did in fact advise the

defendant regarding the option to appeal his conviction. Indeed, the court in 970700092 found the defendant had numerous conversations with his attorney about the possibility of appeal and that the defendant concluded after each discussion that he did not wish to appeal. June 25, 1998 Minute Entry, Case No. 970700092. Thus, the Court finds that the defendant cannot bring the instant motion based upon a failure of his attorney to properly advise the defendant of the right to appeal.

Further, any allegation that the court failed to advise the defendant of his right to appeal is meritless. First, the defendant was advised of his right to appeal when he was discussing his conviction in this case with Judge Dawson at a hearing for cases 961700440 and 441. "[L]et me advise you with regard to the appeal matter, that will be in front of Judge Allphin. And that the appropriate time to file a notice of appeal from that case is within the 30 day period following sentencing on that case." Transcript of Proceedings in 961700440, page 5, lines 15-19. Also, at the defendant's sentencing for his conviction of Forcible Sexual Assault, the court informed the defendant of the thirty-day time period to file an appeal. "Now, if you would like to appeal the sentence the Court has entered, you must take that appeal within 30 days." Transcript of Proceedings, Case No. 961700208. Thus, the Court finds that the defendant cannot bring this motion based on any alleged failure of the court to adequately advise the defendant of his right to appeal.

The only situation contemplated by Manning that the defendant can possibly bring this motion on is that the defendant himself "diligently but futilely attempted to appeal within the statutory time frame without fault on defendant's part." Manning at f 31. The defendant claims that he did preserve his right to appeal by sending a letter to Judge Allphin in July 1996, after his

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conviction, but before his sentencing. The letters have always been treated by the court, the defendant, and Mr. Redd as motions filed by the defendant pro se.

To that end, at the hearing on July 15, 1996—a month before the defendant was

sentenced—when the defendant appeared before Judge Dawson regarding case nos. 961700440 and 441 the defendant informed the court that he had filed the pro se motions mentioned above— while he was still represented by Mr. Redd. In response to a question regarding his appeal in 961700208, Judge Dawson stated, "let me advise you with regard to the appeal matter, that will be in front of Judge Allphin. And that the appropriate time to file a notice of appeal from that case is within the 30 day period following sentencing on that case." Transcript of Proceedings in 961700440, page 5, lines 15-19 (emphasis added). In short, Judge Dawson clearly advised the defendant that his "motion for appeal" was premature and that the appropriate time for filing a notice of appeal was after sentencing, not before.

The defendant has cited in his Motion various affidavits of Mr. Redd provided to the Court in previous post-conviction relief cases. These affidavits primarily address the issue of whether the defendant's pro se notice of appeal was withdrawn by the defendant and/or Mr. Redd in the hearing before Judge Dawson on July 17, 1996. At that hearing, Mr. Redd,

representing the defendant, stated, "I think we have a resolution to this matter. What that would entail is that the motions filed by the Defendant would be withdrawn. And there would be an amendment to the outstanding charges, and a plea that would result." Transcript of Proceedings in Case No. 961700440, page 9, lines 18-22. Much has been made of this statement in the defendant's prior post-conviction relief petitions. The dispute has been whether the defendant, through Mr. Redd, withdrew his motion for appeal along with the other motions submitted to the court. The various affidavits of Mr. Redd address this issue. The defendant claims that the

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various courts have never addressed the issue of whether he actually withdrew his notice of appeal. However, this issue is not dispositive of whether the defendant has been

unconstitutionally deprived of his right to appeal.

Whether or not the defendant withdrew his notice of appeal, the fact still remains that Judge Dawson advised the defendant on July 15, 1996 that his motion for appeal was untimely and needed to wait until after his sentencing. The defendant does not dispute that he failed to do anything after his sentencing to effectuate an appeal. Under Utah law, a defendant has the right to appeal from "the final judgment of conviction, whether by verdict or plea." Utah Code Ann. § 77-18a-1(a). Utah case law has a long history of noting that a "final judgment of conviction" as cited in § 77-18a-l(a) means the same thing as "sentencing." "[I]n the technical legal sense, sentence is ordinarily synonymous with judgment, and denotes the action of a court of criminal jurisdiction formally declaring to the accused the legal consequences of the guilt which he has

confessed or of which he has been convicted." State v. Fedder, 262 P.2d 753, 755 (Utah 1953). Further, "[i]t is generally accepted that the imposition of sentence is required for finality of a judgment of conviction." State v. Johnson, 700 P.2d 1125, 1127 (Utah 1985). The Utah Court

of Appeals clarified the issue of when a criminal appeal can be made in State v. Walker, 2002 UT App 290, where the Court said "we hold that under Utah law a trial court must impose a sentence in order to create a final, appealable order." Id. at ^ 11. It is important to note that the Court of Appeals was not breaking new ground when it held in 2002 that a sentence must be imposed before there is a final order to appeal from. See Walker at ^ 11, n.6-7.

Judge Dawson understood the requirement of sentencing before an appeal can be made. This is evidenced by Judge Dawson informing the defendant that the appropriate time for filing an appeal was within thirty days after he was sentenced. Indeed, if defendant's letter to Judge

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Allphin can be termed a notice of appeal, that notice was early. Further, the record supports the fact that the defendant was informed again of his thirty day time period to file an appeal. "Now, if you would like to appeal the sentence the Court has entered, you must take that appeal within 30 days." Transcript of Proceedings, Case No. 961700208.

In short, the defendant cannot prove by a preponderance of the evidence that he was unconstitutionally deprived of his right to appeal through no fault of his own. See Manning at % 31. The Court acknowledges the risk involved when the defendant undertook to file his appeal

pro se.] However, when the defendant undertook to represent himself he undertook the risk that

he would not follow the correct procedure for filing an appeal. The Court finds that if the defendant did, in fact, send a notice of appeal to Judge Allphin it was untimely as it was received by Judge Allphin after the defendant was convicted but before the defendant was sentenced. When the defendant neglected to properly re-file a Notice of Appeal after he was sentenced, the defendant failed to preserve his right to appeal. The Court finds that the defendant was

adequately advised by the court of his right to appeal and the time limit in which to exercise that right on at least two different occasions—at the July 15, 1996 hearing before Judge Allphin and at his sentencing on August 14, 1996 before Judge Memmott. Further, the Court finds that the defendant's attorney, Mr. Redd, adequately counseled with the defendant regarding the

advisability of filing an appeal to his conviction and that the defendant made the decision to not direct his attorney to proceed with an appeal. "We expressly state that the procedure set forth here is not available to a defendant properly informed of his appellate rights who simply lets the matter rest, and then claims that he did not waive his right to appeal." Manning at ^ 33. The

1 Incidentally, the record is unclear as to whether the defendant actually dismissed Mr. Redd from the proceedings in

961700208. It appears that the defendant did, in fact, affirmatively dismiss his counsel from this case but continued to retain Mr. Redd's representation in 961700440 and 441. As those cases were sentenced at the same time as this case, per the request of the defendant, Mr. Redd was present for the sentencing in this case.

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defendant here was properly informed of his appellate rights and simply let the matter rest. Thus, according to Manning, the defendant cannot now claim that he did not waive his right to appeal.

The Court wishes to be clear that it is, in fact, addressing the issue of whether the defendant withdrew his notice of appeal at the July 17, 2005 hearing—the issue that is brought before the Court on the various filings and affidavits of Mr. Redd. The Court finds that it makes no difference whether the defendant actually did withdraw his notice of appeal or not. If the defendant did not withdraw his notice of appeal, such notice was still early and a subsequent notice was required by Utah case law and the Utah Court Rules to have been filed after the defendant was sentenced and not before.

Further, even if the notice of appeal had been timely, the Court still finds that the defendant failed to follow the proper procedure for filing a notice of appeal. The defendant claims to have timely filed his pro se notice of appeal by sending a letter, expressing his desire to appeal his conviction, to Judge Allphin. Even if the letter can be termed a notice of appeal, the defendant failed to properly file such notice. Rule 4(a) requires that any notice of appeal be filed "with the clerk of the trial court," not with the trial judge. There are numerous reasons for this requirement, not the least of which is to ensure that a record is made of any filings—including a notice of appeal. Because the request for an appeal was sent in the form of a letter to the trial judge, rather than filed with the Clerk of Court, as required by the Appellate Rules, the defendant

failed to properly preserve his right to appeal.

Based upon the foregoing, the Court DENIES the defendant's Motion for Reinstatement of Direct Appeal Nunc Pro Tunc because the defendant failed to prove by a preponderance of the evidence that he was unconstitutionally deprived of his right to appeal through no fault of his own, as required by Manning. Due to the Court's denial of the defendant's Motion for

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Reinstatement of Direct Appeal, the defendant's subsequent motion for appointment of counsel is moot and is therefore DENIED.

Dated this day:

DISTRICT ODURT Jl

P

Toy*—.

JUDGE RODNEY S. PAGE

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MAILING CERTIFICATE

I certify that I sent a true copy of the foregoing RULING ON DEFENDANT'S MOTIONS

FOR REINSTATEMENT OF DIRECT APPEAL NUNC PRO TUNC and

APPOINTMENT OF COUNSEL to the following, postage pre-paid, on this date: tl-/(s-Q<r

MICHAEL L. PAOLONE #25408-89213 UTAH STATE PRISON

UINTA D 108-b P.O. BOX 250

DRAPER, UTAH 84020

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