Utah Court of Appeals
Must defendants prove they would have appealed to reinstate appeal time? State v. Blanke Explained
Summary
In 2003, Blanke pled guilty to attempted child kidnapping and was sentenced to three years to life. In 2021, he moved to reinstate time to file a direct appeal, claiming he was not informed of his right to appeal his sentence. The district court denied the motion, finding Blanke failed to show he would have appealed even if properly informed.
Analysis
In State v. Blanke, the Utah Court of Appeals clarified the burden of proof required for defendants seeking to reinstate their time to file a direct appeal under rule 4(f) of the Utah Rules of Appellate Procedure.
Background and Facts
In 2003, Kevin Blanke pled guilty to attempted child kidnapping pursuant to a favorable plea agreement that also allowed him to plead to a reduced charge in a separate kidnapping case. His plea waiver explicitly stated he was giving up his “right to appeal the conviction and sentence.” Nearly two decades later, in 2021, Blanke moved to reinstate his time to file a direct appeal, claiming he was never properly informed of his right to appeal his sentence.
Key Legal Issues
The central issue was whether Blanke met the requirements under rule 4(f) to reinstate his appeal time. Rule 4(f) allows reinstatement “upon a showing that a criminal defendant was deprived of the right to appeal.” The court had to determine what constitutes sufficient evidence of such deprivation.
Court’s Analysis and Holding
The Court of Appeals held that rule 4(f) requires a two-part showing: (1) deprivation of the right to appeal and (2) evidence that an appeal would have been taken if the defendant had been properly informed. Even assuming Blanke was not properly informed of his appeal rights, the court found he failed to present any evidence that he would have actually appealed his sentence. The court emphasized that “there can be no deprivation of the right to appeal” if the error was harmless, and harmlessness is established when a defendant would not have appealed regardless of proper advice.
Practice Implications
This decision establishes that speculation about what a defendant might have done is insufficient for rule 4(f) relief. Practitioners must present concrete evidence—such as contemporaneous communications expressing intent to appeal, requests to counsel for appellate assistance, or other documentation showing the defendant would have pursued an appeal. The court noted that Blanke’s favorable plea agreement, which resolved multiple cases, actually suggested he had no reason to appeal his sentence at the time.
Case Details
Case Name
State v. Blanke
Citation
2023 UT App 113
Court
Utah Court of Appeals
Case Number
No. 20220104-CA
Date Decided
September 28, 2023
Outcome
Affirmed
Holding
A defendant seeking reinstatement of time to appeal under rule 4(f) must show both deprivation of the right to appeal and that an appeal would have been taken if properly informed of that right.
Standard of Review
Correctness for the court’s legal conclusion that defendant was not denied his right to appeal; clear error for factual findings
Practice Tip
When seeking reinstatement under rule 4(f), present concrete evidence that the defendant expressed intent to appeal or would have pursued an appeal, not just speculation about what they might have done.
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