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State v. Nicholls

Court of Appeals of Utah

March 30, 2017

State of Utah, Appellee,
Craig Duncan Nicholls, Appellant.

         First District Court, Logan Department The Honorable Kevin K. Allen No. 031100637

          Wayne K. Caldwell and Aaron K. Bergman, Attorneys for Appellant

          Sean D. Reyes and Lindsey L. Wheeler, Attorneys for Appellee

          Judge Stephen L. Roth authored this Opinion, in which Judge Gregory K. Orme and Senior Judge Pamela T. Greenwood concurred. [1]


          ROTH, Judge:

         ¶1 Craig Duncan Nicholls filed a Manning motion in district court seeking to reinstate the time to directly appeal the murder conviction entered against him after a guilty plea. The court determined that Nicholls had already exhausted his right to a direct appeal and denied the motion, which he appeals. We affirm.


         ¶2 This case comes to us on a long and varied procedural history involving multiple appellate and postconviction proceedings. We first recount the general background before moving to the particular circumstances that led to this appeal.

         General Case History

         ¶3 After consulting with his girlfriend, Nicholls agreed to kill her ex-husband. On a pretense, Nicholls lured the ex-husband to a construction site, shot him in the back and chest, hid the body in a storage room, and made off in the victim's car. Investigators quickly focused on Nicholls and his girlfriend and charged him with aggravated murder and with purchasing, transferring, possessing, or using a firearm by a restricted person. The State initially sought the death penalty.

         ¶4 Nicholls' trial counsel negotiated a plea agreement on his behalf. In exchange for his guilty plea, the State agreed to drop the firearm charge and to forgo the death penalty and instead seek life in prison without the possibility of parole. Nicholls agreed to the terms and pleaded guilty. After a plea colloquy in which Nicholls waived the waiting period for sentencing, the court accepted his guilty plea and immediately sentenced him to life in prison without the possibility of parole.

         ¶5 In the time since, Nicholls has sought to challenge aspects of his plea in a number of ways. First, he filed a pro se motion to withdraw the plea, which the district court denied as untimely, and thus jurisdictionally barred, because he had not filed the motion before sentencing as required by Utah law. Nicholls then filed a pro se appeal from the denial of his motion, but the appeal was dismissed after he failed to file a docketing statement. Second, Nicholls ostensibly sought to challenge his sentence in district court under Utah Rule of Criminal Procedure 22(e), which allows a court to correct an illegal sentence at any time. The district court determined that it lacked subject matter jurisdiction and dismissed the rule 22(e) motion. Nicholls appealed and was appointed counsel for the appeal. The Utah Supreme Court affirmed the district court's dismissal in State v. Nicholls (Nicholls I), 2006 UT 76, 148 P.3d 990. In that case, the supreme court determined that the motion, although filed in the guise of a sentencing challenge under rule 22(e), was improper because the substance of the relief requested was "withdrawal of [Nicholls'] guilty plea due to lack of a knowing and voluntary waiver of rights." Id. ¶ 4. The court reiterated that rule 22(e) motions are not the proper vehicle to attack a guilty plea, id. ¶ 5, and noted that, having failed to move to withdraw his guilty plea before sentencing, Nicholls' only remaining avenue to challenge the plea itself was under the Post-Conviction Remedies Act (the PCRA), id. ¶¶ 6-7. Although not deciding the issue, the court noted "that Defendant may be entitled to counsel pursuant to [a provision of the PCRA]" in any future postconviction process. Id. ¶ 7.

         ¶6 Nicholls, acting pro se, subsequently challenged the guilty plea underlying his conviction by petitioning the district court for relief under the PCRA. On the State's motion, the district court dismissed the petition on the merits. Nicholls timely appealed to the supreme court, where he also represented himself, resulting in Nicholls v. State (Nicholls II), 2009 UT 12, 203 P.3d 976.

         ¶7 In Nicholls II, the court reached the merits of Nicholls' postconviction arguments, including one relevant here-namely, his contention that he received ineffective assistance of counsel during the plea phase of his criminal case. In support of his claim, Nicholls argued that "on the day of the plea hearing, I told [counsel] I wanted a trial, " and that in response "counsel refused to consult with me or even acknowledge that I had any input." Id. ¶ 35. Nicholls also claimed that "counsel spent two hours making threats, demands, and bribes to force [him] to accept the plea deal, and, eventually, [he] could no longer resist and capitulated to the plea." Id.

         ¶8 In assessing his claims, the supreme court focused on the record from Nicholls' underlying criminal case. The court determined that Nicholls' counsel advised him to accept a plea deal that avoided a potential death sentence and that, even if counsel put very little time into the case and only consulted with him twice as Nicholls asserted, such facts were not sufficient to show that his counsel performed deficiently. Id. ¶ 37. The supreme court also reviewed Nicholls' plea colloquy with the district court in detail. It highlighted the fact that, in response to four separate questions from the district court, Nicholls had essentially indicated that he was satisfied with the advice of his counsel and had not been compelled to enter a plea. Id. ¶ 39. The supreme court also concluded that, even if his counsel had been deficient, Nicholls had not met his burden of showing prejudice in his acceptance of a plea deal because he "pointed to no record evidence to show that he would have garnered a more favorable result had he not pled guilty." Id. ¶ 40. In sum, the supreme court affirmed the district court's dismissal of Nicholls' PCRA claims on the merits and in detail, concluding that Nicholls had not demonstrated ineffective assistance of counsel during the plea and sentencing phase of his criminal case. Id. ¶ 41.

         This Appeal

         ¶9 After failing to convince the supreme court that his plea was constitutionally flawed, Nicholls returned to the district court with a motion to appoint counsel and reinstate his time for direct appeal under Manning v. State, 2005 UT 61, 122 P.3d 628. After several procedural and scheduling issues delayed resolution of the motion, the court appointed counsel for Nicholls and set a briefing schedule. The State's briefing deadline came and went without the State submitting a response. Although Nicholls' counsel took no action, Nicholls moved pro se to submit for decision on his pleading alone. Along with his request to submit, Nicholls also moved to dismiss and replace counsel based on a potential conflict of interest that had been uncovered.

         ¶10 With the Manning motion still pending and submitted for decision, the State moved to enlarge its time to file a response, which the court granted the same day. The State then filed its opposition to the Manning motion, but Nicholls' appointed counsel never replied to the State's brief even though counsel timely requested and was granted extra time to do so. Nicholls, citing repeated but failed attempts to contact his counsel, submitted his motion for replacement counsel for decision. The court scheduled a second status conference and learned that Nicholls' existing counsel had stopped working on the case due to the unresolved conflict question. The court left the counsel issue open and indicated that it would proceed to decide the Manning motion on the record already before it.

         ¶11 In a written decision issued a few weeks later, the court determined that Nicholls had "exhausted his direct appeal rights" because he "gained access to the appellate system by filing his [first] Notice of Appeal." The court also concluded that, based on his failed rule 22(e) motion, "[Nicholls] has already had direct appellate review as it pertains to his attempt to withdraw his guilty plea." The court denied the Manning motion and denied the motion for appointment of new counsel as moot. Nicholls timely filed a notice of appeal, and we remanded for appointment of appellate counsel.

         ¶12 Now with counsel, Nicholls has submitted the case on briefs and oral argument. After the case was submitted, however, Nicholls moved this court for a stay pending a decision in a Utah Supreme Court case, Gailey v. State, 2016 UT 35, 379 P.3d 1278, which arose on a somewhat similar procedural posture and involved similar arguments. Like this case, Gailey involved an attack on the constitutionality of Utah's statutory requirement that any challenge to a guilty plea made after sentencing is limited to proceedings under the PCRA. We granted the stay and both parties submitted supplemental briefing once the Gailey opinion issued.


         ¶13 Nicholls contends that the district court erred when it denied his motion to reinstate the appeal period under Manning v. State, 2005 UT 61, 122 P.3d 628. In the Manning context, we review the district court's legal conclusions "for correctness but give deference to its underlying factual findings, meaning that we will not overturn them unless they are clearly erroneous." State v. Kabor, 2013 UT App 12, ¶ 8, 295 P.3d 193. Because the central question to be resolved here is whether Nicholls has a right of appeal that is subject to reinstatement, see Manning, 2005 UT 61, ¶ 31, we primarily focus on Nicholls' challenges to the constitutionality of Utah's statutory requirement that, once a defendant is sentenced, the defendant may challenge a guilty plea only under the PCRA. "The constitutionality of a statute is also a question of law reviewed for correctness." Gailey v. State, 2016 UT 35, ¶ 8, 379 P.3d 1278.

         ¶14 Nicholls also contends that the district court wrongly denied his motion to appoint counsel as moot. "We review the issue of mootness de novo, affording no discretion to the trial court." Cox v. Cox, 2012 UT App 225, ¶ 12, 285 P.3d 791.


         ¶15 In the proceeding below, Nicholls moved to reinstate the time to appeal his conviction under Manning v. State, 2005 UT 61, 122 P.3d 628. Manning explains that "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." Id. ΒΆ 1. In support of his motion, Nicholls alleged that his trial counsel performed ineffectively during the plea and sentencing phase of his case: "there was coercion"; "[he] was wrongfully advised"; and "[trial] counsel promised their assistance on the direct appeal, but after sentencing, went dark." According to Nicholls, he thus ...

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