State v. Przybycien

               THE UTAH COURT OF APPEALS

                        STATE OF UTAH,
                          Appellee,
                               v.
                    TYERELL JOE PRZYBYCIEN,
                          Appellant.

                            Opinion
                        No. 20220278-CA
                    Filed December 14, 2023

            Fourth District Court, Provo Department
                The Honorable M. James Brady
                         No. 171401553

          Douglas J. Thompson, Attorney for Appellant
             Sean D. Reyes and Michael D. Palumbo,
                     Attorneys for Appellee

   JUDGE GREGORY K. ORME authored this Opinion, in which
   JUDGES RYAN M. HARRIS and RYAN D. TENNEY concurred.

ORME, Judge:

¶1     For the significant role he played in aiding the suicide of
another, the State charged Tyerell Joe Przybycien with murder
and abuse or desecration of a dead human body. In two other
cases, the State also charged him with five counts of sexual
exploitation of a minor and two counts of tampering with a
witness. Przybycien eventually pled guilty to one count of child
abuse homicide and one count of attempted sexual exploitation of
a minor, for which he received concurrent prison sentences.
Przybycien did not file a notice of appeal within the 30-day
window following sentencing. Instead, nearly two years later, he
filed a motion under rule 4(f) of the Utah Rules of Appellate
Procedure seeking to reinstate his time to appeal, which motion
the district court denied.
                         State v. Przybycien


¶2     On appeal, Przybycien challenges the denial, arguing that
his trial attorneys (Counsel) 1 rendered ineffective assistance,
thereby depriving him of his constitutional right to appeal.
Specifically, he argues that Counsel were ineffective under Roe v.
Flores-Ortega, 

 (2000), for failing to consult with him
about a potential appeal after sentencing. Because, under the
circumstances of this case, we conclude that Counsel did not
perform deficiently in not consulting with Przybycien
post-sentence, we affirm the district court’s denial of the rule 4(f)
motion.


                         BACKGROUND

                     Arrest and Plea Agreement

¶3     In the Spring of 2017, sixteen-year-old J.B. confided in
eighteen-year-old Przybycien that she was suicidal. 2 In response,
Przybycien told her, “I’ll make it happen for you if that’s what
you want.” He subsequently encouraged her suicidal thoughts
and told her that he also planned to commit suicide “at some
point.”

¶4      A few weeks later, in early May, a turkey hunter came
across J.B.’s body hanging from a noose tied to a tree. The hunter
called the police, who arrived at the scene soon thereafter. At J.B.’s
feet, the police found “a receipt for the purchase of rope”
containing Przybycien’s name, “a smart phone, a handwritten



1. In the proceedings before the district court, Przybycien was
represented by two attorneys. For simplicity, unless otherwise
indicated, we refer to them collectively as Counsel.

2. The factual recitation of the conduct underlying Przybycien’s
convictions is derived from the “Factual Basis for the Crimes
Charged” section of Przybycien’s plea agreement.


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                        State v. Przybycien


suicide note referring to a video on the phone and a can of
industrial strength air duster.”

¶5     The phone contained a video recording of J.B.’s death taken
from “just a few feet away.” It showed J.B. alive with a noose
around her neck holding a shirt in one hand and the can of air
duster in the other. She was standing on what was later
discovered to be a “pedestal” consisting of “a rock and a piece of
wood.” Przybycien’s voice is then heard asking J.B. “to say
something,” following which J.B. inhaled “a large amount of the
air duster,” lost consciousness, and fell “in a twisting motion.”
The video continued for another 10 minutes, during which
Przybycien continued to ask J.B. questions. J.B. was unresponsive
to Przybycien’s questions, but her body made “what appear[ed]
to be slight involuntary movements until she expire[d].”
Przybycien did not attempt to save J.B.’s life. Instead, “he can be
heard saying her body should be depleted of oxygen.”

¶6     While the police were at the scene, Przybycien returned,
approached the officers, and agreed to an interview. During
multiple interviews with the police, Przybycien admitted to
researching how to tie a noose, purchasing the rope, testing it to
ensure it was sufficiently tight and long, and tying the noose. He
also admitted that he purchased the air duster and constructed
the makeshift “pedestal.” Further, he told police that on the night
in question, he picked J.B. up from work and took her to the scene
of her suicide where he twice watched her inhale the contents of
the air duster and pass out—once without and once with the
noose around her neck. He stated, “I feel like I did murder her.
That’s what it is. Because I helped her so much. And that was my
plan. That was my plan.”

¶7    For his conduct relating to J.B.’s death, the State charged
Przybycien with murder, a first-degree felony, and abuse or




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                        State v. Przybycien


desecration of a dead human body, a class B misdemeanor. 3
Following a preliminary hearing and additional written argument
from both sides, particularly on the issue of causation for the
murder charge, the district court issued a written ruling binding
the case over for trial.

¶8     In a separate case, based on images of child pornography
that police found on Przybycien’s cellphone as part of their
investigation into J.B.’s death, the State charged Przybycien with
five counts of sexual exploitation of a minor, second-degree
felonies. And in a third case, the State charged Przybycien with
two counts of tampering with a witness.

¶9    On September 4, 2018, three months before trial was
scheduled to begin on the charges related to J.B.’s death, the court
held a telephonic conference at which Przybycien was not
present. At the hearing, the court stated that

       the big question was whether or not the State of
       Utah had a charge that fit the factual circumstances
       of this case.

               It seemed that at the preliminary hearing that
       issue came up, and I was uncertain as to what other
       fact disputes there might be between the parties; but
       as it was indicated to me the matter will be going to
       a jury, I wondered if this isn’t the kind of case that
       would be appropriate for either motions prior to
       trial to address the legal issues, or perhaps even a



3. At the time of J.B.’s death, our Legislature had not yet amended
the manslaughter statute to include the intentional aiding in the
commission of suicide as a variant of the offense. Compare 

(1) (LexisNexis 2017), with 

 § 76-5-205(2)(b)
(Supp. 2022).



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                          State v. Przybycien


       Sery type plea[4] where the parties could preserve
       their rights.

              . . . I’m assuming that regardless of how this
       Court rules or how the jury rules, the legal question
       is a question that probably needs a higher authority
       than the trial Court in order to resolve it. So I’m
       anticipating that either side could choose to appeal
       it.

                 So I guess my question really comes down to
       . . . [i]s this a fact case or is this a law case, and how
       do you want to proceed; and if this doesn’t mean
       anything to you, we’ll just go forward with the trial.

¶10 Both sides agreed that the case turned primarily on the
legal issue of whether Przybycien “caused the death of another.”
Counsel then indicated that they would discuss with Przybycien
the possibility of a Sery plea that would allow him to “tak[e] the
legal issue up on appeal.”

¶11 Almost two months later, Przybycien entered a plea
agreement in which he pled guilty to one count each of child
abuse homicide and attempted sexual exploitation of a minor, a
first-degree felony and a third-degree felony, respectively. In
exchange, the State dismissed all remaining charges from all three
cases and agreed to recommend that the sentences for both


4. As codified in rule 11(j) of the Utah Rules of Criminal
Procedure, “a Sery plea is a conditional plea in which a defendant
pleads guilty (or no contest) but reserves the right to appeal the
trial court’s denial of a motion to suppress certain evidence. If the
appellate court reverses the denial of that motion, the defendant’s
plea is withdrawn.” Kamoe v. Ridge, 

, 

(quotation simplified). See State v. Sery, 

, 937–39 (Utah
Ct. App. 1988). Przybycien did not enter such a plea in this case.



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                        State v. Przybycien


charges to which Przybycien pled guilty be run concurrently. In
relevant part, as emphasized in the plea agreement, Przybycien
acknowledged, “I understand that I am giving up my right to
appeal my conviction if I plead guilty” and “I understand that if I
plead guilty and wish to appeal my sentence I must file a notice of
appeal within thirty (30) days after my sentence is entered.”

¶12 At the change-of-plea hearing, the district court ensured
that Przybycien understood the terms of the plea agreement and
that the charges to which he was pleading guilty “carr[ied] with
them the possibility of incarceration at the Utah State Prison for
not less than five years and up to life on the first-degree felony
and for up to five years on the third-degree felony.” Counsel
indicated that the agreement had been discussed with Przybycien
twice within the past 24 hours. The court also confirmed that
Przybycien was entering his pleas “freely and voluntarily.”
Following a reading of the factual bases for the charges contained
in the agreement, which Przybycien agreed were accurate,
Przybycien signed the plea agreement before the court. The court
accepted the pleas and set the matter for sentencing.

¶13 In December 2018, the district court held the sentencing
hearing. Counsel emphasized, among other things, Przybycien’s
young age, “developing mind,” and feelings of remorse. After
acknowledging that it was “a big ask,” Counsel requested that
Przybycien “serve two years at the Utah County Jail,” followed
by 60 months of supervised probation. The State asked the court
to sentence Przybycien to prison and that “the Board of Parole . . .
hold him as long as necessary for him to show that he is . . . no
longer a danger to our community, which for him, unfortunately,
may be for the rest of his natural life.”

¶14 After reviewing letters and other documents submitted
from both Przybycien’s and J.B.’s friends and family, the district
court sentenced Przybycien to concurrent prison terms. For the
child abuse homicide conviction, the court sentenced him “to an



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                         State v. Przybycien


indeterminate term in the Utah State Prison of not less than five
years, but which may be for life.” And for the attempted sexual
exploitation of a minor charge, the court sentenced him “to an
indeterminate term in the Utah State Prison not to exceed five
years.”

¶15 The district court next told Przybycien, “[Y]ou have the
right to appeal my decision within the next 30 days if you choose
to do so. You also have the right to have a State appointed
attorney assist you in preparing that [appeal] if you cannot afford
your own attorneys; do you understand that?” Przybycien
responded, “Yes.”

                           Rule 4(f) Motion

¶16 Nearly two years later, in September 2020, Przybycien filed
a pro se motion with the district court seeking to reinstate his time
to file an appeal under rule 4(f) of the Utah Rules of Appellate
Procedure. 5 Later, represented by appellate counsel, he filed an
amended rule 4(f) motion in which he asserted that “[a]t no time
prior to his plea, before sentencing, or within the 30-day time
limitation” to appeal his sentence did Counsel ever discuss with
him “the possibility of filing an appeal from the sentence,” “an
appeal challenging the applicability of a homicide charge to the
facts of the case,” or “the possibility of raising a challenge based
on the passage of House Bill 086, 2018, in which the legislature
created the crime of aiding another individual to commit suicide.”



5. The district court denied Przybycien’s pro se motion on the
ground that he “failed to serve a copy of his motion . . . on all other
parties.” On appeal from that denial, the State conceded that it
was, in fact, served with the motion and accordingly requested
summary reversal and remand. The State’s request was well
taken, and the case was remanded to the district court to consider
the merits of the motion.



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                        State v. Przybycien


¶17 The district court 6 held an evidentiary hearing on the
motion at which Przybycien and Counsel testified. Przybycien
acknowledged that although he had been informed, both prior to
entering the plea agreement and at sentencing, of the 30-day
window to appeal his sentence, he did not “make any effort to
have that sentence appealed within 30 days from the sentence.”
He also acknowledged that he was not prohibited or prevented
from appealing his sentence at the time.

¶18 Przybycien further testified that he did not recall
discussing the September 4, 2018 pre-trial conference with
Counsel. It was not until “[s]ometime in 2020” that Przybycien
obtained and read the transcript of the hearing, and he testified
that he did not recall Counsel ever discussing with him the district
court’s concern expressed at the hearing about whether “the State
had a charge that fit the actual circumstances of the case.” He also
testified that Counsel did not discuss with him the possibility of a
Sery plea or that the question of causation was a legal question
“that probably need[ed] a higher authority than the trial Court in
order to resolve it”—both of which issues the court had suggested
at that hearing.

¶19 At the conclusion of Przybycien’s testimony, the district
court made “a general statement” regarding the questioning that
suggested that the court had been “worried about causation” at
the pre-trial hearing. The court stated that it was unsure whether
“the phrasing” that it “was worried” or “was concerned” was “an
accurate portrayal” because its recollection was that it “may have
raised questions and had discussions” regarding whether “the
case was going to move forward either on a factual or legal basis.”




6. The same judge who took Przybycien’s plea and issued his
sentence presided over the evidentiary hearing related to the rule
4(f) motion and ruled on the motion.



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                        State v. Przybycien


But, the court stated, “if the record is different, we’ll go by the
record.”

¶20 One of Przybycien’s trial attorneys testified at the
evidentiary hearing that he and co-counsel discussed “the legal
issue of causation” with Przybycien “[m]ultiple times,” including
“generally what the Court indicated” at the September 4, 2018
pre-trial conference. He also stated that they discussed with
Przybycien the law amending the manslaughter statute to include
aiding in the commission of suicide and that they did so both
before and after its passage in May 2018, for a total of “more than
five times.” 7 And on “multiple” occasions, they also went over
“the risks and rewards of moving forward to trial versus resolving
his case by way of a plea bargain,” which included discussion of
possible sentencing scenarios of “plea deal versus going to trial”
with the aid of “matrix estimates.” He stated that he and
co-counsel “spent a lot of time with [Przybycien] at the jail”
discussing “strategy decisions” and that they “were very
thorough.” He also believed that at the time of sentencing,
Przybycien had been “fully advised of his right to appeal.” He
also stated that “before sentencing we talked about the option of
appealing the sentence if he was sent to prison and he did not get
probation. I do remember generally speaking about that option
with him.”

¶21 The attorney testified that he did not remember visiting
Przybycien in prison during the 30-day window, but that he did
remember that in the 30 days after Przybycien’s sentence was
imposed, he received “multiple messages” from Przybycien by
way of his mother, none of which mentioned a possible appeal.

7. Indeed, the attorney testified that, based on the 2018
amendment to the manslaughter statute, see supra note 3,
Przybycien authorized them to offer “to resolve the case as a
second-degree felony manslaughter case.” The State rejected this
offer.



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                        State v. Przybycien


Instead, the messages addressed Przybycien’s desire “to be
interviewed for the 48 Hours CBS show regarding this case, and
also about how he was doing at the prison with his cell mate and
the different types of jobs he was doing.”

¶22 The other trial attorney also did not remember visiting
Przybycien in prison during the 30-day window to revisit the
question of a possible appeal following sentencing. He testified
that “one of the reasons we resolved the case the way we did is
because the charge” of child abuse homicide “matrixed at
substantially less than the murder conviction would have, at
about half.” He stated that he and his co-counsel had discussed
with Przybycien “the matrix, the likelihood of a prison sentence
and what the matrix suggested might be an appropriate
incarceration period before parole would be granted.” Based on
this, he believed they had informed Przybycien “that prison was
the most likely option, but that we could ask for probation”
although “it was a longshot.” He also confirmed that Przybycien
had hoped for probation.

¶23 The district court issued a written order denying
Przybycien’s rule 4(f) motion. The court found the testimony of
Counsel to be “more credible than the testimony of” Przybycien.
Accordingly, the court found that “at some time after the
September 4, 2018, hearing,” Counsel informed Przybycien of the
hearing and told him “generally about the topics discussed,”
including “that the issue of causation was the primary legal issue
in the case and that an appeal may be necessary to resolve that
issue.” The court further found that Counsel discussed “the
possibility of filing further motions, filing interlocutory appeal,
. . . proceeding to trial,” and a Sery plea with Przybycien.

¶24 The district court next stated “that the issue of
reinstatement of an appeal by [Przybycien] is limited” to
“whether [he] was denied his right to appeal his sentence.”
Accordingly, the court held that “[a]ny effort to address



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                         State v. Przybycien


effectiveness of counsel and other issues leading up to
[Przybycien’s] plea” would need to be addressed through the
Post-Conviction Remedies Act.

¶25 In addressing whether Przybycien was deprived of his
right to a direct appeal, the court stated,

       Prior to his entry of plea [Przybycien] was informed
       in writing and through consultation with his
       attorneys of his right to file an appeal and the time
       requirement for filing an appeal. At sentencing he
       stated he understood the written document and did
       not need more time to review it with his attorneys.
       After sentencing, [Przybycien] was told by the
       Court that he had the right to appeal the sentence,
       and the time requirements for filing. He was told if
       he could not afford an attorney to assist him with an
       appeal, the Court would consider appointing an
       attorney. Following sentencing [Przybycien] did not
       instruct his attorneys to file a direct appeal.
       [Przybycien] did not attempt to file an appeal on his
       own.

The court further noted that Przybycien did not claim that
Counsel “failed to file a direct appeal after agreeing to do so,” that
“he diligently attempted to file a timely appeal but was unable to
do so through no fault of his own,” or that “either the court or
[Counsel] failed to advise him of the right to appeal.” See Manning
v. State, 

, 

 (listing three examples of
deprivation of the right to appeal), superseded by rule, Utah R. App.
P. 4(f). Instead, Przybycien’s argument was limited to asserting
that he was denied the right to appeal because Counsel “did not
meet with him following his sentencing hearing to further discuss
whether he wanted to file an appeal.”

¶26 The court stated that Przybycien “candidly argued that one
of his goals is to expand the case law on rule 4(f)” to “require all


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                          State v. Przybycien


defense counsel to consult with their clients following a
sentencing hearing,” but the court was not willing to “attempt to
modify or expand rule 4(f) to meet [Przybycien’s] desired policy.”
Accordingly, the court ruled that Przybycien “was not deprived
of his right to a direct appeal” and denied the motion.

¶27    Przybycien appeals.


             ISSUE AND STANDARDS OF REVIEW

¶28 Przybycien argues that the district court erred in denying
his rule 4(f) motion to reinstate his time to file a notice of appeal. 8
“We review for correctness the court’s legal conclusion that
[Przybycien] was not denied his right to appeal, but we give
deference to the court’s factual findings, reviewing them for clear
error.” State v. Blanke, 

, 

.


                             ANALYSIS

¶29 Under Article I, Section 12 of the Utah Constitution,
criminal defendants have “the right to appeal in all cases.” But
this right is limited by, among other things, rule 4(a) of the Utah
Rules of Appellate Procedure, which requires a criminal
defendant to file a notice of appeal within 30 days from the time


8. After Przybycien filed his notice of appeal, this court issued an
order stating, “Pursuant to Rule 10(b) of the Utah Rules of
Appellate Procedure this matter has been selected to be resolved
through a simplified appeal process.” See generally Utah R. App.
P. 10(b)–(c). In his memorandum, Przybycien also argued that we
should rescind this order and “grant [him] the opportunity for full
briefing and oral argument.” Oral argument was heard in this
case—it is not foreclosed by an order calling for the submission of
memoranda in lieu of full briefing—during which Przybycien
“formally waiv[ed]” his request for additional briefing.


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                         State v. Przybycien


of sentencing. See Utah R. App. P. 4(a) (“[T]he notice of appeal . . .
must be filed with the clerk of the trial court within 30 days after
the date of entry of the judgment or order appealed from.”); State
v. Bowers, 

, 

 (“In a criminal case, it is
the sentence itself which constitutes a final judgment from which
appellant has the right to appeal.”) (quotation simplified). This
30-day limit “is jurisdictional in nature, meaning that an appellate
court simply has no power to hear the case if a notice of appeal is
untimely.” State v. Collins, 

, 

(quotation simplified). See id. ¶ 21 (stating that to exercise the
constitutional right to appeal, “defendants must properly invoke
the appellate court’s jurisdiction” because “appellate courts do
not enjoy unlimited power to review the actions of trial courts and
cannot conjure jurisdiction”) (quotation simplified).

¶30 An exception to this general jurisdictional bar is found in
rule 4(f) of the Utah Rules of Appellate Procedure, the purpose of
which “is to provide criminal defendants who have been
deprived of an appeal through no fault of their own with an
avenue for relief.” State v. Brown, 

, 

.
The rule directs, in relevant part, that “[u]pon a showing that a
criminal defendant was deprived of the right to appeal, the trial
court shall reinstate the thirty-day period for filing a direct
appeal.” Utah R. App. P. 4(f). Under the rule and relevant caselaw,
for the exception to apply, a criminal defendant must “show
(1) deprivation of the right to appeal and (2) that an appeal would
have been taken had the defendant been properly informed of the
right.” State v. Blanke, 

, 

. See
Collins, 

 (“[B]oth our reinstatement caselaw and
rule 4(f) of the Utah Rules of Appellate Procedure require that a
defendant show he has been ‘deprived’ of the right to appeal. And
this deprivation requirement implicitly recognizes that
reinstatement is appropriate only where the defendant can show
that he would have appealed had he been properly informed.”).




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                         State v. Przybycien


¶31 Under the first element, to establish deprivation of the
right to appeal, defendants “must demonstrate that they are not
the cause of the loss of their right to appeal” by “point[ing] to
some other party—typically, counsel or the trial court—that is at
fault for the deprivation of the right to appeal.” State v. Stewart,

, 

. See Collins, 

 (“Relief
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.”) (quotation simplified). Indeed,
rule 4(f)’s use of “the term ‘deprived’ is crucial. That word
encompasses a narrow range of situations where a defendant
would have appealed, but had that right taken away or was kept
from the possession, enjoyment, or use of that right.” Stewart, 

 (quotation simplified).

       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.

Manning v. State, 

, 

 (quotation
simplified), superseded by rule, Utah R. App. P. 4(f). 9 See Stewart,

.




9. The procedure for reinstating the time to appeal was originally
articulated in Manning v. State, 

, ¶¶ 26–33, 

,
and later codified in rule 4(f) of the Utah Rules of Appellate
Procedure. See State v. Brown, 

, ¶¶ 14–15, 

;
State v. Collins, 

, 

. Although “Manning
has been supplanted by rule 4(f),” Brown, 

, and
                                                       (continued…)


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                         State v. Przybycien


¶32 Przybycien argues “that his right to competent counsel
includes the right to be consulted with regarding an appeal as
established in” Roe v. Flores-Ortega, 

 (2000).
Accordingly, he contends that he received ineffective assistance
when Counsel “neglect[ed] to consult with him, an 18 year-old,
about an appeal after he was sentenced to serve a life sentence in
prison” and that this ineffective assistance deprived him of his
right to appeal, as required under rule 4(f). Because we hold that
Counsel did not perform deficiently in not consulting with
Przybycien post-sentence regarding his appeal prospects, his
argument necessarily fails. 10



therefore “does not supply a valid procedural basis for accessing
the right to appeal separate and apart from rule 4(f),” id. ¶ 15,
Manning nevertheless “inform[s] the discussion of what rule 4(f)
means by ‘deprived of the right to appeal,’” id. ¶ 16. See State v.
Stewart, 

, 

 (“Manning and the examples
[of deprivation of the right to appeal] cited therein align with the
language of rule 4(f).”). We note, however, that the advisory
committee’s note for rule 4(f) that previously referenced Manning
has since been removed. Compare Utah R. App. P. 4(f) advisory
committee’s note (2019) (“Paragraph (f) was adopted to
implement the holding and procedure outlined in Manning v.
State, 

, 

.”), with 

 R. 4(f) (2020) (containing
no advisory committee note and noting in the amendment notes
that “[t]he 2020 amendment deleted that Advisory Committee
note”).

10. Przybycien additionally argues that the district court erred in
limiting its analysis of his rule 4(f) motion to the three examples
of deprivation of the right to appeal articulated in Manning and
argues that “the ineffective assistance of counsel analysis
described by the U.S. Supreme Court in” Roe v. Flores-Ortega, 

 (2000), “can be used to consider whether a defendant had
                                                      (continued…)


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                         State v. Przybycien


¶33 A claim of ineffective assistance of counsel requires an
appellant to show both that (1) “counsel’s performance was
deficient” and (2) “the deficient performance prejudiced the
defense.” Strickland v. Washington, 

 (1984). “A
defendant’s inability to establish either element defeats a claim for
ineffective assistance of counsel.” State v. Cruz, 

, 

 (quotation simplified), cert. denied, 

(Utah 2021). Here, we need only discuss the first prong of the
inquiry.

¶34 To satisfy the deficient performance prong, the appellant
must show that defense counsel’s “representation fell below an
objective standard of reasonableness.” Strickland, 

.
This standard is “highly deferential” to defense counsel in that the
defendant must overcome the “strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance,” 

, and “the ultimate question is always
whether, considering all the circumstances, counsel’s acts or
omissions were objectively unreasonable,” State v. Scott, 

, 

. See Strickland, 

 (“In any case
presenting an ineffectiveness claim, the performance inquiry
must be whether counsel’s assistance was reasonable considering
all the circumstances.”).

¶35 In Roe v. Flores-Ortega, 

 (2000), the United States
Supreme Court addressed ineffective assistance of counsel in the


been ‘deprived’ of the right to appeal under Rule 4(f).” The State
argues that “[e]ven assuming that rule 4(f) permits reinstatement
based on a showing of ineffectiveness of counsel, [Przybycien]
fails to show trial counsel was ineffective.” We ultimately hold
that Przybycien did not receive ineffective assistance under
Flores-Ortega, and so we need not consider whether ineffective
assistance of counsel might constitute an independent basis for
concluding there was deprivation of the right to appeal under rule
4(f).


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                        State v. Przybycien


context of attorney consultations regarding possible appeals.
Although stating that “the better practice is for counsel routinely
to consult with the defendant regarding the possibility of an
appeal,” id. at 479, the Court specifically rejected a “bright-line
rule that counsel must always consult with the defendant
regarding an appeal,” id. at 480. Instead, the Court held that

       counsel has a constitutionally imposed duty to
       consult with the defendant about an appeal when
       there is reason to think either (1) that a rational
       defendant would want to appeal (for example,
       because there are nonfrivolous grounds for appeal),
       or (2) that this particular defendant reasonably
       demonstrated to counsel that he was interested in
       appealing.

Id. Such a determination can be made “[o]nly by considering all
relevant factors in a given case.” Id. “Although not determinative,
a highly relevant factor in this inquiry [is] whether the conviction
follows a trial or a guilty plea, both because a guilty plea reduces
the scope of potentially appealable issues and because such a plea
may indicate that the defendant seeks an end to judicial
proceedings.” Id. A further consideration is “whether the
defendant received the sentence bargained for as part of the plea.”
Id.

¶36 Przybycien argues that Counsel had a duty under both
rationales to consult with him regarding his right to appeal his
sentence. We address each in turn.

¶37 Initially, Przybycien argues that Counsel had a duty to
consult with him about his right to appeal “because a rational
defendant, under the circumstances, would want to appeal from
the district court’s sentencing order, sending [him], an 18 year




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                         State v. Przybycien


old[11] to prison” and that Counsel therefore performed deficiently
in not doing so. Specifically, he asserts that circumstances relevant
to the determination “include the judge’s expressed concern that
the State did not have a factual circumstance that met the elements
of homicide as there was real doubt whether [he] caused the death
in question.” He further contends that a rational defendant would
be motivated to appeal “to avoid the onerous procedural bars of
the Postconviction Remedies Act.” Lastly, he asserts that a
reasonable defendant would have wanted to appeal to raise a
claim of ineffective assistance on the ground that Counsel failed
to raise the district court’s concerns relating to legal causation at
sentencing as a justification for probation.

¶38 Additionally, although one of his trial attorneys testified
that prior to sentencing he did discuss with Przybycien the
possibility of appealing an unfavorable sentence and that he
believed Przybycien to have been “fully advised of his right to
appeal” at the time of sentencing, Przybycien argues that the
record does not establish that he was consulted regarding his right
to appeal. He asserts “that being advised of the right to appeal
(either in the written plea statement, or in pre-plea discussion
with counsel, or by the judge at sentencing) is not the same as
post-judgment consultation about the pros and cons of an appeal
on the specifics of the case, and an earnest attempt to determine
the defendant’s wishes with respect to the right to appeal.”
Indeed, this definition of “consult” comports with Flores-Ortega,
in which the Court clarified that it “employ[ed] the term ‘consult’
to convey a specific meaning—advising the defendant about the
advantages and disadvantages of taking an appeal, and making a
reasonable effort to discover the defendant’s wishes.” Id. at 478.
But even assuming that Counsel did not consult with Przybycien
regarding his right to appeal either before or after sentence was



11. We note that while Przybycien was 18 years old at the time of
J.B.’s death, he was actually 19 at the time of sentencing.


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                         State v. Przybycien


announced, under the circumstances of this case, Counsel did not
perform deficiently in not doing so.

¶39 Here, the “highly relevant factor in” the deficient
performance inquiry, i.e., “whether the conviction follows a trial
or a guilty plea,” id. at 480, weighs against Przybycien. Indeed,
“the scope of potentially appealable issues,” id., to which he
points is limited to the legal question of whether he caused J.B.’s
death. Przybycien acknowledges, however, that his right to
appeal, if reinstated under rule 4(f), would be limited to
challenging his sentence—not the underlying guilty plea. See State
v. Nicholls, 

, 

 (“A defendant who
pleads guilty waives the right to a direct appeal of the conviction
on the crime charged.”) (quotation simplified), cert. denied, 

 (Utah 2017). Nevertheless, he asserts that “he is trying
to reinstate the right to appeal from the sentence issued by the
judge that had questioned ‘whether or not the State of Utah had a
charge that fit the factual circumstances of this case’ and yet still
sentenced [him] to serve 5–life in prison.”

¶40 Although Przybycien places great emphasis on the district
court’s concerns regarding legal causation in this case—which, at
the rule 4(f) evidentiary hearing, the court denied having—any
such concern played little to no role at the sentencing stage.
Namely, “by pleading guilty, the defendant is deemed to have
admitted all of the essential elements of the crime charged and
thereby waives all nonjurisdictional defects.” State v. Rhinehart,

, 

 (quotation simplified). Thus, by
the sentencing stage, any concerns regarding legal causation had
been resolved by virtue of the plea agreement. For this same
reason, Przybycien’s argument that a reasonable defendant
would have appealed in an effort “to avoid the onerous
procedural bars of the Postconviction Remedies Act” is likewise
unavailing.




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                        State v. Przybycien


¶41 Furthermore, the consideration of “whether the defendant
received the sentence bargained for as part of the plea,”
Flores-Ortega, 

, also weighs against Przybycien. In
the plea agreement, the State, having agreed to drop six of the
eight charges pending against Przybycien and to amend the other
two, agreed only to recommend that the sentences for both
remaining charges run concurrently. And the district court did, in
fact, accept that recommendation and sentence Przybycien to
concurrent prison terms.

¶42 Additionally, although Przybycien had hoped for
probation but instead received a sentence of five-years-to-life, the
record shows that he “obtained a sentence that should have been
expected.” Manning v. State, 

, 

,
aff’d on other grounds, 

, 

. One of his trial
attorneys testified that one reason Przybycien pled guilty to child
abuse homicide was that it “matrixed at substantially less than the
murder conviction would have, at about half.” He also stated that
Counsel had discussed with Przybycien “that prison was the most
likely option” and that they “could ask for probation” but “it was
a longshot.” This is further bolstered by the acknowledgment
Counsel made to the district court at sentencing that the request
for “two years at the Utah County Jail,” followed by 60 months of
supervised probation, was “a big ask.”

¶43 For these reasons, we cannot say that, under the
circumstances of this case, “a rational defendant would [have]
want[ed] to appeal” the sentence Przybycien received.
Flores-Ortega, 

.

¶44 Alternatively, Przybycien contends that he “reasonably
demonstrated to counsel that he was interested in appealing,” 

because his sentence of five-years-to-life did not match the two
years in jail and probation that Counsel sought at sentencing and
because Counsel confirmed in the subsequent rule 4(f)
evidentiary hearing that Przybycien had hoped for probation. But



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                        State v. Przybycien


as discussed above, although Przybycien would have preferred
probation, he was advised that such a sentence was unlikely, and
his hope for probation was quite unrealistic, all things considered.
Thus, this desire expressed prior to sentencing, without more, was
insufficient to reasonably demonstrate to Counsel a desire to
appeal.

¶45 More importantly, despite being informed at sentencing
that he had 30 days to appeal his sentence, Przybycien did not
undertake any action that would reasonably demonstrate to
Counsel that he wished to file a notice of appeal. Indeed, at the
evidentiary hearing on his rule 4(f) motion, Przybycien conceded
that he did not “make any effort to have that sentence appealed
within 30 days from the sentence.” To the contrary, although
Przybycien sent “multiple messages” to Counsel during the
30-day window, none of the messages mentioned appeal, much
less did they convey an “interest[] in appealing.” Przybycien’s
attentions appear to have instead been focused on a potential
television interview, his cellmate, “and the different types of jobs
he was doing.” This is the behavior of someone resigned to his
fate, even while hoping for some media attention, rather than
someone wishing to appeal or at least revisit the possibility of
appealing his sentence.

¶46 Accordingly, for the stated reasons, this claim of deficient
performance under Flores-Ortega likewise fails.


                         CONCLUSION

¶47 Under the circumstances of this case, Przybycien has not
established that Counsel performed deficiently in not taking the
initiative to consult with him concerning a potential appeal
following sentencing. We therefore affirm the district court’s
denial of his motion under rule 4(f) of the Utah Rules of Appellate
Procedure to reinstate the 30-day period to appeal his sentence.




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