This memorandum decision is subject to revision before
publication in the Pacific Reporter.
IN THE UTAH COURT OF APPEALS
Rory J. Schultz,
(For Official Publication)
Petitioner and Appellant,
Case No. 20050079-CA
F I L E D
(March 16, 2006)
State of Utah,
2006 UT App 105
Respondent and Appellee.
Third District, Salt Lake Department, 030913031
The Honorable Ann Boyden
Brent A. Orozco and Billie J. Siddoway, Salt Lake
City, for Appellant
Mark L. Shurtleff and Erin Riley, Salt Lake City, for
Before Judges Bench, McHugh, and Orme.
Rory J. Schultz appeals from a court order ruling that
Schultz's attorney did not render ineffective assistance when he
advised Schultz, who is mentally impaired, of his appellate
rights but did not thereafter contact Schultz to reconfirm his
decision not to appeal. We affirm.
Schultz's mental impairment makes it difficult for him to
remember things. Schultz, however, was found competent to
proceed to trial by a court-ordered competency evaluation.
Schultz pleaded guilty to four reduced counts of sexual
abuse of a child. See Utah Code Ann. § 76-5-404.1 (2003). He
was sentenced to indeterminate prison terms of one to fifteen
years on each of the four counts, with the sentences for counts
one, two, and three running concurrently, and the sentence for
count four running consecutively to the first three.
After sentencing, Schultz and his trial counsel met in a
holding cell. Schultz was "very upset" and "crying at the time"
because he had hoped to be confined in a mental health facility
rather than prison. He stated that he would do anything to avoid
going to prison. Trial counsel and Schultz discussed Schultz's
appellate rights, with counsel assessing Schultz's chances of a
successful appeal as very unlikely. Based on that assessment,
Schultz instructed trial counsel not to file an appeal.
Consistent with those instructions, counsel did not file an
appeal but advised Schultz to contact him if he changed his
mind.1 Trial counsel later testified that he believed he had
successfully communicated with Schultz concerning Schultz's
appellate rights. Schultz never thereafter asked his attorney to
file a notice of appeal.
Schultz later filed a pro se notice of appeal, which we
dismissed as untimely. Schultz also filed a pro se Petition for
Extraordinary Relief that challenged his conviction and sought
post-conviction relief. The trial court held an evidentiary
hearing on the ineffective assistance claim in the petition. The
court found that trial counsel properly notified Schultz of his
right to appeal and followed Schultz's express direction not to
do so. The court then concluded that counsel "was not required
to override [Schultz's] directions and file a notice of appeal
despite [Schultz's] direction not to do so. Nor was [counsel]
required to continue checking with [Schultz] to determine whether
[Schultz] had changed his mind and wanted to appeal."
On appeal, Schultz challenges the trial court's conclusion
that he was not denied effective assistance of counsel. Schultz
argues that although he was previously found to be competent, he
was so upset at receiving a prison sentence that he was
temporarily incompetent during the discussion of his right to
appeal. Therefore, Schultz asserts, trial counsel had a duty to
explain the appellate rights in a repetitious manner and also to
check back with Schultz to reconfirm his decision not to appeal.
Schultz asks us to remand his case to the trial court for
resentencing so that his appellate rights may be revived. See
Manning v. State, 2004 UT App 87,¶10, 89 P.3d 196 (noting that in
certain limited circumstances a defendant may be resentenced,
starting a new thirty-day period for filing an appeal), aff'd on
other grounds, 2005 UT 61, 122 P.3d 628.
We review an appeal from a judgment on a petition for post-
conviction relief for correctness, giving no deference to the
1Trial counsel recounted this conversation at an evidentiary
hearing before the trial court. Schultz, however, testified at
the same hearing that counsel never said anything to him about
his right to appeal and that he learned of this right from
another inmate. The court found that Schultz's testimony on this
point was "not credible."
post-conviction court's conclusions. See id. at ¶8. An
ineffective assistance claim presents a mixed question of law and
fact, and we review legal conclusions for correctness and factual
findings for clear error. See Jacobs v. State, 2001 UT 17,¶20,
20 P.3d 382.
To demonstrate ineffective assistance of counsel, Schultz
must meet the heavy burden of showing that (1) trial counsel
rendered deficient performance that fell below an objective
standard of reasonable professional judgment and (2) counsel's
deficient performance was prejudicial. See Manning, 2004 UT App
87 at ¶31.
Schultz has failed to make this showing. We agree with the
trial court that trial counsel sufficiently explained Schultz's
appellate rights. It is not surprising that Schultz was upset
after learning that he was going to prison. Cf. State v.
Benvenuto, 1999 UT 60,¶18, 983 P.2d 556 (recognizing that most
people confronting possibility of lengthy prison sentence would
suffer "some level of depression"). We cannot say, however, that
this distress equated to temporary incompetence. Cf. State v.
Young, 780 P.2d 1233, 1237 (Utah 1989) (noting with approval the
trial court's observation that defendant's distress during trial
did not rise to the level of incompetence and was not unusual
under the circumstances of defending serious criminal charges).
Furthermore, although trial counsel indicated it was sometimes
difficult to get Schultz to focus on certain issues, counsel
believed Schultz understood and knowingly waived his right to
appeal. The trial court found counsel's testimony credible, and
Schultz has not challenged those findings on appeal.
"[A] defendant who explicitly tells his attorney not to file
an appeal plainly cannot later complain that, by following his
instructions, his counsel performed deficiently." Roe v. Flores-
Ortega, 528 U.S. 470, 477 (2000) (emphasis omitted) (citing Jones
v. Barnes, 463 U.S. 745, 751 (1983)). Furthermore, trial counsel
was not required to contact Schultz again to determine whether he
had changed his mind. Schultz's reliance on Meade v. Oregon
State Hospital, No. 98-36063, 1999 U.S. App. LEXIS 27383 (9th
Cir. Oct. 25, 1999) (mem.),2 does not support a different result.
Unlike the defendant in Meade, Schultz was not found to be
legally insane. See id. at *4. To the contrary, Schultz was
evaluated and found competent. Under these circumstances, and in
2We recognize that it is generally not appropriate to cite
unpublished cases as authority. See Meade v. Oregon State Hosp.,
No. 98-36063, 1999 U.S. App. LEXIS 27383, at *1 n.1 (9th Cir.
Oct. 25, 1999) (mem.). It is necessary to discuss this case
here, however, because Schultz relied on it in his brief.
light of the testimony from trial counsel that he did effectively
communicate with Schultz concerning his right to appeal, we agree
with the trial court that there was no continuing obligation to
check back with Schultz to determine whether he had changed his
mind. Schultz cannot show that trial counsel's performance was
deficient, and therefore we need not address the question of
prejudice.3 See State v. Wright, 2004 UT App 102,¶9, 90 P.3d 644
("[B]ecause a defendant has the burden of meeting both parts of
[this] test, it is unnecessary for this court to apply both parts
where our inquiry reveals that one of its parts is not
satisfied." (first alteration in original) (quotations and
Carolyn B. McHugh, Judge
Russell W. Bench,
Gregory K. Orme, Judge
3Because this case involves a guilty plea, we note that even
if we were to conclude that Schultz could now appeal, those
appellate rights would be quite limited. See Utah R. Crim. P.
11(e)(8); see also Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000)
(stating that "a guilty plea reduces the scope of potentially
appealable issues" and "may indicate that the defendant seeks an
end to judicial proceedings").