District Court, Provo Department The Honorable Lynn W. Davis
Douglas J. Thompson, Margaret P. Lindsay, and Leah Jordana
Aston, Attorneys for Appellant
D. Reyes and Jeffrey D. Mann, Attorneys for Appellee
Kate A. Toomey authored this Opinion, in which Judges Jill M.
Pohlman and Ryan M. Harris concurred.
Calvin Paul Stewart was convicted in 2003 of seventeen second
and third degree felonies. Twelve years later, he filed a
motion to reinstate the period for filing a direct appeal,
which the court denied. He appeals the denial of that motion,
arguing that a criminal defendant's right to appeal
requires that the defendant be informed of the right to
counsel on appeal. We agree and therefore reverse.
In 2001, the State charged Stewart with multiple securities
violations, including securities fraud and the sale of
unregistered securities. He was initially represented by
private counsel, but counsel later withdrew because Stewart
could not afford to pay him. The court appointed Stewart a
public defender, but ultimately Stewart decided to represent
himself at trial. Stewart was convicted and sentenced to
prison on seventeen counts, with each sentence to run
With the help of a non-attorney friend, Stewart filed a
notice of appeal and a docketing statement, and this court
set a briefing schedule. Stewart expected his friend to help
file a brief, but the friend declined to do so when Stewart
could not pay him. Stewart failed to file a brief by the
deadline, and this court dismissed his appeal.
Over the next decade, Stewart filed various motions for
relief, including a motion to appoint counsel, a motion to
correct his sentence, and a motion for relief from what he
characterized as a void judgment. The district court denied
each of these motions. On one occasion, he appealed one of
these rulings, and this court affirmed the district
court's decision. See State v. Stewart, 2010 UT
App 367U (per curiam).
In 2015, Stewart filed a pro se "Motion to Reinstate
Period for Filing Direct Appeal" under rule 4(f) of the
Utah Rules of Appellate Procedure, which is the motion at
issue in this appeal. Stewart also filed a related motion to
appoint counsel. The court appointed a public defender to
represent Stewart and, after counsel filed an amended motion
to reinstate Stewart's direct appeal, the court held an
evidentiary hearing in early 2016.
At the hearing, Stewart testified that when the court
released the appointed public defender as his 2003 trial was
approaching, the judge informed him that he would have to
find new counsel by a specific date or proceed without
representation. Stewart understood this to mean that if he
chose not to have appointed counsel at trial, he could not
have appointed counsel on appeal. Stewart testified that the
court did not inform him of the right to counsel on appeal
during his trial or at his sentencing hearing, and that had
he known, he would have requested counsel to assist with his
Stewart's counsel argued that Stewart was deprived of his
right to appeal under rule 4 of the Utah Rules of Appellate
Procedure. Counsel argued that even though Stewart filed a
notice of appeal, he was never informed of his constitutional
right to counsel on appeal, and without the help of counsel,
he was unable to file a brief to perfect his appeal. Counsel
argued that, because Stewart did not know and was not
informed he was entitled to appellate counsel, the time
period for Stewart to file an appeal should be reinstated.
The district court denied Stewart's motion for three
reasons. First, Stewart's "requests to represent
himself in his 2003 jury trial and sentencing" and
"his choice to proceed in his appeal pro se"
constituted a "constructive waiver of his right to an
attorney on appeal." Second, Stewart's motion failed
on the merits because his own failure to respond to the
briefing deadline caused his appeal to be dismissed. Third,
Stewart's "mere claim" that he was not informed
of his right to counsel did not ...