author: ORME, Judge:

text:
    2004 UT App 87
    Carolyn Roberts MANNING, Petitioner and Appellant, v. STATE of Utah, Respondent and Appellee.
    No. 20020993-CA.
    Court of Appeals of Utah.
    April 1, 2004.

      Joan C. Watt, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General and Laura B. Dupaix, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges BILLINGS, DAVIS, and ORME.
   OPINION

ORME, Judge:

¶ 1 Carolyn Manning appeals the trial court’s denial of her petition for postconviction relief, which was brought over a year after she entered her guilty pleas. She contends that because she was not fully informed by her counsel and the trial court of the nature of her right to appeal, the trial court’s refusal to resentence her constitutes a denial of her constitutional right to appeal. We affirm the trial court’s denial of her motion and clarify the procedures for attacking guilty pleas and the availability of resen-tencing as a means to cure a missed opportunity to appeal.

BACKGROUND

¶2 Manning was originally charged with three counts of unlawful dealing with property by a fiduciary, one count of failure to render a proper tax return, and two counts of theft by deception. Under the terms of a plea agreement, Manning pled guilty to one count of unlawful dealing with property by a fiduciary, a second degree felony; one count of failing to file a proper tax return, a third degree felony; and one count of theft, a third degree felony. The agreement also called for Manning to pay restitution to her victims. In exchange, the State agreed to dismiss the other counts.

¶3 In her written plea statement and at the plea hearing, Manning acknowledged that by entering a guilty plea she was waiving certain rights, including her right to appeal the conviction. In July 2001, she signed a statement, which she had reviewed with counsel, confirming that she intended to enter a guilty plea. The statement explained each of her rights that would be waived by voluntarily entering a guilty plea, including that the “right of appeal is limited.” In contrast, if she “were tried and convicted by a jury or by a judge, [she] would have the right to appeal [her] conviction and sentence.” The statement further explained that by pleading guilty she was “not preserving any issue for appeal relative to the Court’s rulings on pre-trial motions or based upon statutory or constitutional challenges” and that she understood that by pleading guilty she waived her “rights to file an appeal.” The statement also provided notice of the “time limits for withdrawing pleas” and indicated that such a request “must be made by motion within 30 days after the entry of the plea” and that the plea may be withdrawn only “upon a showing of good cause and with leave of the Court.”

¶ 4 At the plea hearing in July 2001, Manning was represented by counsel, and the trial court engaged her in a colloquy before accepting her plea. During the course of the colloquy, the court determined that Manning understood the proceedings against her and was competent to enter a guilty plea. Her attorney stated that she is “a bright lady” who was “educated through the 15th grade” and that she had “participated in the preparation of’ the written plea statement. Manning stated that her attorney had “taken the time to extend himself to adequately and properly serve me, and I’m satisfied with his service.” The court explained that the “third degree felonies may carry with them an indeterminate term at the Utah State Prison of zero to five years”; “[t]he second degree felony can carry with it an indeterminate term at the Utah State Prison of one to fifteen years”; and “there is a substantial amount of restitution that will be ordered.” The court reviewed with Manning the trial rights she would forego by pleading guilty and stated that her “right to appeal these pleas of guilty is very limited.” After accepting her guilty pleas, the court informed her of her right to file a motion to withdraw the pleas within 30 days.

¶ 5 On September 27, 2001, Manning was sentenced to the statutory term of imprisonment for each offense, which prison terms were suspended except for one year, and she was given credit for time already served, which was approximately four months. She was placed on probation for thirty-six months and was ordered to pay restitution in the tentative amount of $210,000 to her individual victims and $19,431.24 to the Utah State Tax Commission. At sentencing, defense counsel indicated that he had “spoken to Ms. Manning about the real probability that [incarceration] was going to happen.”

¶ 6 On November 23, 2001, Manning filed a pro se notice of appeal, which this court later dismissed for lack of jurisdiction. In an unpublished decision, this court explained that when a notice of appeal is filed beyond the 30-day appeal deadline, see Utah R.App. P. 4(a), we lack appellate jurisdiction, and Manning’s only remedy if she was deprived of the right to appeal was to seek postconvietion relief under the Utah Rules of Civil Procedure.

¶ 7 On July 31, 2002, Manning filed a petition in the district court “pursuant to Rule 65B(b) and/or 65C [of the] Utah Rules of Civil Procedure for an extraordinary writ allowing her to be sentenced nunc pro tunc ... thereby extending the time in which to file a notice of appeal.” Her primary claim was that her right to appeal and right to counsel had “been violated by the failure to file a timely notice of appeal from her conviction.” The district court denied her petition for postconvietion relief, finding that Manning “was informed by the court of her limited right to appeal,” “was represented by very competent counsel,” and had “not established that she was unconstitutionally denied her right to appeal.” Manning now appeals that ruling.

ISSUES AND STANDARDS OF REVIEW

¶ 8 Manning argues that the trial court “erred in refusing to resentenee her nunc pro tunc.” She contends that she “was deprived of her constitutional right to appeal” and “was also deprived of the right to counsel during the period for perfecting an appeal.” “Generally, an appeal from a judgment on a petition for post-conviction relief raises questions of law reviewed for correctness, [on which we give] no deference to the post-conviction court’s conclusion.” Wickham v. Galetka, 2002 UT 72,¶ 7, 61 P.3d 978. Accord Moench v. State, 2002 UT App 333, ¶ 4, 57 P.3d 1116. Likewise, interpretation of the Post^Conviction Remedies Act, rule 65C, and rule 65B “present[] question^] of law, which we also review for correctness and without deference to the lower court’s conclusion.” Moench, 2002 UT App 333 at ¶ 5, 57 P.3d 1116. See Platts v. Parents Helping Parents, 947 P.2d 658, 661 (Utah 1997) (stating that “matters of statutory construction are questions of law that are reviewed for correctness”).

ANALYSIS

¶ 9 The Utah Constitution provides that “[i]n criminal prosecutions the accused shall have the right to ... appeal in all eases.” Utah Const. art. I, § 12. The Utah Supreme Court has stated that “the right of appeal [is] essential to a fair criminal proceeding” and it cannot be “lightly forfeited.” State v. Tuttle, 713 P.2d 703, 704 (Utah 1985). However, appeals must be filed “within 30 days after the date of entry of the judgment or order appealed from.” Utah R.App. P. 4(a). It is well established that “[i]f an appeal is not timely filed, this court lacks jurisdiction to hear the appeal.” Serrato v. Utah Transit Auth., 2000 UT App 299,¶ 7, 13 P.3d 616, cert. denied, 21 P.3d 218 (Utah 2001). The Utah Supreme Court has warned that extraordinary writs “must not” be used to “make a mockery of the time limits for appeal, undermine the finality of criminal judgments, and promote the indefensible merry-go-round of collateral attack.” Boggess v. Morris, 635 P.2d 39, 43 (Utah 1981). Nonetheless, in circumstances where the right to appeal has been denied, the trial court may resentence a criminal defendant nunc pro tunc to provide the defendant with an opportunity to file a timely appeal. See id. (granting extraordinary relief where petitioner requested that counsel pursue an appeal but counsel failed to file a notice of appeal); State v. Johnson, 635 P.2d 36, 38 (Utah 1981). Manning contends it was error for the lower court to refuse to resentence her.

I. Resentencing

¶ 10 Utah cases have recognized that in certain limited circumstances a defendant should be resentenced in order to revive the right to appeal. In State v. Johnson, 635 P.2d 36 (Utah 1981), the criminal defendant claimed that his attorney agreed to file a notice of appeal after sentencing, but the attorney failed to follow through. See id. at 37. Having learned of the first attorney’s failure, the defendant contacted a second attorney while still within the 30-day period for filing an appeal, “but through some misunderstanding” a timely appeal was not filed. Id. The Court denied the defendant’s request to extend the time for filing because “[t]he 30-day period ... is jurisdictional and cannot be enlarged” but explained that due to the “important interests involved,” which made “further proceedings desirable,” the trial court could take evidence to determine whether the defendant’s constitutional right to appeal the conviction had been denied. Id. The Court stated that “[i]f the facts alleged by the defendant are true ... defendant was denied a constitutional right and must be provided an opportunity to take a direct appeal from his conviction.” Id. at 38. As the remedy for such a denial, the Court adopted the resentencing procedure described in People v. Callaway, 24 N.Y.2d 127, 299 N.Y.S.2d 154, 247 N.E.2d 128, 130 (N.Y. 1969), whereby the act of resentencing starts a new 30-day period for filing an appeal. See Johnson, 635 P.2d at 38.

¶ 11 Similarly, in Boggess v. Morris, 635 P.2d 39 (Utah 1981), the defendant filed a notice of appeal almost seven months after he was sentenced, claiming, among other things, ineffective assistance of counsel. See id. at 40. “After his conviction and again at the time of his sentencing, defendant advised his appointed counsel that he did not want to appeal[, but a]fter he arrived at the state prison, defendant changed his mind” and so advised his attorney. Id. The Court determined that “[c]ounsel erred in not filing the notice of appeal” because the defendant’s letter asking his attorney to file an appeal reached the attorney the day before the expiration of the time for filing a notice of appeal. Id. The Court stated that “[t]he error in this case goes to the availability of the appeal” and “[i]f the facts found by the [trial] court establish that the right to appeal was denied, that court is then empowered to resentence the defendant nunc pro tunc.” Id. at 42-43.

II. Procedural Confusion

¶ 12 There is widespread confusion about the exact procedure to be followed in cases like the instant one, where resentencing to resurrect the right to appeal is the objective, as typified by Manning’s invocation of “Rule 65B(b) and/or 65C [of the] Utah Rules of Civil Procedure.” Given the recurring nature of this problem, we take the opportunity to illuminate the historical reasons for this confusion and to clarify the correct procedural approach.

¶ 13 At the time that Johnson and Boggess were decided, “[t]he appropriate remedy [was] a motion for relief under Utah Rules of Civil Procedure, Rule 65B(i),” which authorized the trial court, “if it [found] in favor of the complainant, to ‘enter an appropriate order with respect to the judgment or sentence in the former proceedings ... as the court may deem just and proper in the ease.’ ” Johnson, 635 P.2d at 38 (third alteration in original) (quoting Utah R. Civ. P. 65B(i)(8) (1977)). The Utah Supreme Court explained that “[t]he postconvietion hearing procedure is a successor to the common-law writ of error coram nobis.” Id. A writ of error coram nobis is “[a] writ of error directed to a court for review of its own judgment and predicated on alleged errors of fact.” Black’s Law Dictionary 338 (7th ed.1999). It can be distinguished from the more familiar writ of habeas corpus, which is “employed to bring a person before a court, most frequently to ensure that the party’s imprisonment or detention is not illegal.” Id. at 715.

[Coram nobis], which [the Utah Supreme Court] declared to be available 'in Utah in appropriate cases, Neal v. Beckstead, 3 Utah 2d 403, 285 P.2d 129 (1955), was used by a sentencing court to modify or vacate a judgment of conviction on the basis of facts which, without defendant’s fault, did not appear on the face of the record and as to which defendant was without other remedy. State v. Gee, 30 Utah 2d 148, 514 P.2d 809 (1973); Sullivan v. Turner, 22 Utah 2d 85, 448 P.2d 907 (1968). Thus, coram no-bis could be used, in carefully limited circumstances, to modify or vacate a judgment where extra-record facts showed that the defendant had been deprived of his constitutional right to a fair trial, including the right to the assistance of counsel.

Johnson, 635 P.2d at 38.

¶ 14 Again, when Johnson and Boggess were decided in 1981, rule 65B(i) governed postconvietion relief in Utah. See Utah R. Civ. P. 65B(i) (1977) (stating that “[a]ny person imprisoned ... under a commitment of any court ... who asserts that in any proceedings which resulted in his commitment there was a substantial denial of his [constitutional] rights ... may institute a proceeding under this Rule”). Rule 65B was reorganized and revised in 1991, see Utah R. Civ. P. 65B (1992) advisory committee note, so that postconvietion relief was thereafter governed by rule 65B(b). See Utah R. Civ. P. 65B(b) (1992) (stating that “[a]ny person committed by a court to imprisonment ... who asserts that the commitment resulted from a substantial denial of rights may petition the court for relief under this paragraph”); Utah R. Civ. P. 65B (1992) advisory committee note (stating that “[p]aragraph (b) ... replaces subparagraph (i) of the former rule”).

III. The PosMUonviction Remedies Act and Rule 65C

¶ 15 In 1996, as a result of coordinated efforts by all three branches of state government, the Legislature enacted the Post Conviction Remedies Act (the PCRA) and the Utah Supreme Court promulgated rule 65C. See Utah Code Ann. §§ 78-35a-101 to -304 (2002); Utah R. Civ. P. 65C (Supp.1996 & 2003). Both became effective on July 1, 1996. The PCRA “establishes a substantive legal remedy for any person who challenges a conviction or sentence for a criminal offense and who has exhausted all other legal remedies, including a direct appeal.” Utah Code Ann. § 78-35a-102(l) (2002). Under the PCRA,

a person who has been convicted and sentenced for a criminal offense may file an action in the district court of original jurisdiction for post-conviction relief to vacate or modify the conviction or sentence upon the following grounds:
(a) the conviction was obtained or the sentence was imposed in violation of the United States Constitution or Utah Constitution;
(b) the conviction was obtained under a statute that is in violation of the United States Constitution or Utah Constitution, or the conduct for which the petitioner was prosecuted is constitutionally protected;
(c) the sentence was imposed in an unlawful manner, or probation was revoked in an unlawful manner;
(d) the petitioner had ineffective assistance of counsel in violation of the United States Constitution or Utah Constitution; or
(e) newly discovered material evidence exists that requires the court to vacate the conviction or sentence....

Utah Code Ann. § 78-35a-104(l)(a)-(e) (2002).

¶ 16 Sections 106 and 107 of the PCRA preclude relief in certain circumstances. “A person is not eligible for relief ... upon any ground that,” among other things, “could have been but was not raised at trial or on appeal,” id. § 78-35a-106(l)(c), unless “the failure to raise that ground was due to ineffective assistance of counsel.” Id. § 78-35a-106(2). Also, “[a] petitioner is entitled to relief only if the petition is filed within one year after the cause of action has accrued,” id. § 78-35a-107(l), although “a court may excuse a petitioner’s failure to file within the time limitations” if it finds that “the interests of justice [so] require.” Id. § 78-35a-107(3).

¶ 17 The PCRA also states that “[procedural provisions for filing and commencement of a petition are found in Rule 65C [of the] Utah Rules of Civil Procedure.” Utah Code Ann. § 78-35a-102(l) (2002). Rule 65C, entitled “Post-conviction relief,” “re-placefd] former paragraph (b) of Rule 65B,” Utah R. Civ. P. 65C (1997) advisory committee note, and now “govern[s] proceedings in all petitions for post-conviction relief filed under [the PCRA].” Utah R. Civ. P. 65C(a) (2003). See also Utah R. Civ. P. 65B (1997) advisory committee note (stating that “[t]he 1996 amendment deleted former Subdivision (b) ... the provisions of which have been transferred to Rule 65C”); Jacobs v. State, 2001 UT 17,¶ 1 n. 1, 20 P.3d 382 (noting that “rule 65B(b) was renumbered and is currently designated as rule 65C”).

IV. Distinguishing Rule 65B

¶ 18 The basis upon which “a person may petition the court for extraordinary relief’ under rule 65B now only includes

any of the grounds set forth in paragraph (b) (involving wrongful restraint on personal liberty), paragraph (c) (involving the wrongful use of public or corporate authority), or paragraph (d) (involving the wrongful use of judicial authority, the failure to exercise such authority, and actions by the Board of Pardons and Parole).

Utah R. Civ. P. 65B(a) (2003). The use of rule 65B is limited to cases “[wjhere no other plain, speedy and adequate remedy is available,” and the scope of relief under paragraph (b) for “[wjrongful restraints on personal liberty,” Utah R. Civ. P. 65B(a)-(b), is now narrowed to “proceedings involving wrongful restraint on personal liberty other than those governed by Rule 65C.” Utah R. Civ. P. 65B (2003) advisory committee note (emphasis added). Therefore, because rule 65C governs proceedings filed under the PCRA, which is the governing statute for “any person who challenges a conviction or sentence for a criminal offense and who has exhausted all other legal remedies,” Utah Code Ann. § 78-35a-102(l), rule 65B is not applicable in a challenge focused on a criminal conviction, even if a restriction on liberty results from the conviction.

¶ 19 In addition, there is a very important procedural distinction between the two provisions: Petitioners alleging “[wjrongful restraint on personal liberty” under rule 65B(b) must “fil[ej a petition with the clerk of the court in the district in which [they are] restrained,” Utah R. Civ. P. 65B(b)(2) (2003), while petitions for postcon-vietion relief must be filed in “the district court in the county in which the judgment of conviction was entered.” Utah R. Civ. P. 65C(b) (2003).

¶ 20 Thus, the plain language of our rules of civil procedure demonstrates the distinction between a petition for postconviction relief, which is governed by rule 65C, and a petition for wrongful restraint on personal liberty, which is governed by rule 65B(b), see Dipoma v. McPhie, 2001 UT 61,¶ 11, 29 P.3d 1225 (stating that courts should “look[j to the plain language of the applicable rule when construing it”), and we conclude that a petitioner seeking to challenge the validity of her conviction(s) may not circumvent the requirements of the PCRA by styling her petition as one filed under rule 65B(b). Rather, such petitioners must proceed under the PCRA and rule 65C. See Julian v. State, 2002 UT 61,¶ 4, 52 P.3d 1168 (recognizing that “[t]he PCRA replaced prior post-conviction remedies with a statutory, ‘substantive legal remedy for any person who challenges a conviction or sentence for a criminal offense and who has exhausted all other legal remedies’ ”) (quoting Utah Code Ann. § 78-35a-102). A contrary holding would render rule 65C and the PCRA superfluous, and “we seek ‘to render all parts [of the statute] relevant and meaningful,’ and we ‘avoid interpretations that will render portions of a statute superfluous or inoperative.’ ” State v. Tooele County, 2002 UT 8,¶ 10, 44 P.3d 680 (citations omitted).

¶21 Typifying — or at least recognizing' — ■ the confusion we seek to ameliorate in this opinion, Manning sought relief in the trial court “pursuant to Rule 65B(b) and/or 65C.” Manning relies on State v. Rees, 2003 UT App 4, 63 P.3d 120, cert. granted, 73 P.3d 946 (Utah 2003), in support of her argument that “a defendant who is requesting resentencing because his right to appeal was violated can file a petition for extraordinary relief under rule 65B(b).” Rees was accurate insofar as it suggested that “coram nobis type relief’ is still available, id. at ¶ 5 n. 2; however, it was clearly incorrect in stating that “[former] Rule 65B(i) [is] presently embodied in rule 65B(b)” and that “rule 65B(b) [is] the successor to the writ of error coram nobis.” Id. at ¶¶ 6, 16. Having clarified that rule 65B(b) is really the successor rule to the writ of habe-as corpus while rule 65C is the successor to the writ of error coram nobis, we now return to the specific arguments made by Manning.

Y. Analysis of Manning’s Claims

¶22 Manning contends that she “did not knowingly and voluntarily waive her right to appeal”; “she was given confusing information as to any right of appeal she might have after pleading guilty”; she “was also not told that she was required to file a notice of appeal within thirty days of sentencing”; and the fact that she “filed a notice from jail within ... fifty-seven days after sentencing” demonstrates that she “did not waive the right to appeal.” She additionally claims that she “was not clearly and adequately advis“ed of the nature of her right to appeal” and she was “deprived of her right to counsel during the period for perfecting the appeal.” However, she has made no substantive argument as to how she was prejudiced by missing the opportunity to appeal or what grounds for appeal existed.

A. Denial of the Right to Appeal

¶ 23 Acknowledging that both Boggess and Johnson speak in terms of the right to an appeal being “denied,” see Boggess v. Morris, 635 P.2d 39, 39 (Utah 1981); State v. Johnson, 635 P.2d 36, 38 (Utah 1981), Manning nonetheless argues that “the appropriate inquiry in determining whether a defendant has been deprived of appeal rights and therefore should be resentenced is to determine whether the circumstances demonstrate a knowing and voluntary waiver of the right to appeal.” In other words, Manning equates “denial” of appellate rights with mere waiver of appellate rights, unless it is shown — apparently by the State — that the waiver was knowing and voluntary. The State counters that more than passively letting appellate rights lapse is required by the concept of “denial.” Indeed, in both Boggess and Johnson attorneys were or may have been instructed to file appeals but opted or allegedly opted not to do so. In other words, the defendants in those cases were denied or possibly denied their appellate rights due to the malfeasance of their attorneys.

¶ 24 To further crystallize the issue framed by the parties, this explanation may be helpful: Both sides agree that if a defendant who wishes to appeal is denied that right- — by an attorney who fails to file a notice of appeal or, say, a prison official who refuses to mail to an attorney a defendant’s instructions to file an appeal — the defendant should be re-sentenced to resurrect the right to appeal. Both sides agree that if a defendant knows of her right to appeal but voluntarily chooses to forego it, a change of heart after the 30-day period for filing an appeal does not entitle her to be resentenced. The disagreement is about what to do with eases in the gray area between those two rather clear situations. Manning contends that if it cannot be shown that the right to appeal was affirmatively waived, then it must be concluded that the defendant was denied that right and is entitled to be resentenced. The State contends that unless a defendant affirmatively sought to exercise the right to appeal, and it was denied as a result of the action or inaction of another person, the defendant is not entitled to the extraordinary remedy of resentencing.

¶ 25 Given the facts and holdings of Johnson and Boggess, we essentially agree with the State. The question of whether the right to appeal a conviction has been denied is a function of availability of that right. The question is answered by determining whether the State or defense counsel closes the door to the right of appeal, or whether the defendant simply chooses not to open it. In the context of this case, where Manning pled guilty, all that is required for her to choose not to exercise the right of appeal is knowledge that the right exists followed by her own inaction. The knowledge requirement was satisfied by the trial court’s compliance with rule 11(e) of the Utah Rules of Criminal Procedure, which requires that the court find that “the defendant has been advised of the time limits for filing any motion to withdraw the plea” and “has been advised that the right of appeal is limited” before the court may accept a guilty plea. Utah R.Crim. P. 11(e)(7), (8). Once the defendant has been given sufficient information to allow the court to make such a finding, it is up to the defendant to exercise the right. In the present context, in order to conclude that a criminal defendant has been “denied” that right, the interference with a defendant’s exercise of the right to appeal must originate in the criminal justice system. For instance, the mishandling of prison mail by a corrections officer or the ineffective assistance of defense counsel would be the basis for resentencing to restart appeal rights if such occurrences thwarted a defendant’s intention to pursue an appeal. Conversely, a defendant could not demonstrate that the right to appeal was “denied” because he relied, to his detriment, on insights about appellate practice from his fellow prisoners or on guidance from a brother-in-law whose “expertise” is limited to regular watching of Court TV. Neither, as likely occurred in this case, does the late onset of “buyer’s remorse” after several unpleasant weeks of incarceration equate to “denial” of the right to appeal.

¶ 26 Manning relies on several Utah cases to support her position that appellate rights that are not exercised are necessarily denied if they are not affirmatively waived. However, her reliance on these cases is misplaced. In Bruner v. Carver, 920 P.2d 1153 (Utah 1996), Bruner was sentenced to prison after he was found guilty of homicide and burglary. See id. at 1154. Although his attorneys “filed a timely notice of appeal,” Bruner indicated that “he ‘was thinking about withdrawing the appeal.’ ” Id. His attorneys had an affidavit delivered to him in prison, which he signed, stating his desire to “knowingly and voluntarily ... withdraw [his] appeal.” Id. The appeal was then dismissed and Bruner filed an action seeking to reinstate the appeal based on the deficient performance of his counsel. See id. at 1155. He argued, among other things, that “the withdrawal of his direct appeal was inconsistent with due process requirements because ... the district court required him to bear the burdén of proving that the withdrawal of his direct appeal was not knowing and voluntary.” Id. The Court determined that “because the pri- or judgment carries a presumption of validity, the trial court correctly assigned to Bruner the burden of showing a constitutional violation.” Id. Bruner’s “appeal was filed and was proceeding routinely until he personally requested that it be withdrawn.” Id. at 1156. Therefore, there was no question as to whether the right to appeal had been denied; instead it was a question of whether he voluntarily chose to withdraw the appeal. Thus, Bruner was not within the gray area mentioned above because he voluntarily chose to forgo the right to appeal.

¶ 27 Conversely, in cases where another actor interferes with the defendant’s attempt to file an appeal, it is logical to view the right as having been denied. See, e.g., State v. Johnson, 635 P.2d 36, 38 (Utah 1981) (stating that if “within the statutory period for appeal [defendant] requested counsel to take an appeal and counsel gave defendant reason to believe that he would but then failed to do so[, then] defendant was denied a constitutional right”) (emphasis added). In this instance, Manning was not prevented from filing a timely appeal, she did not instruct her attorney to file a timely appeal, no timely appeal was filed, and we have no occasion to address whether any withdrawal of appeal was knowing and voluntary.

¶ 28 Manning’s reliance on State v. Tuttle, 713 P.2d 703 (Utah 1985), is also unavailing. That case arose in a distinct context that offers no insight in to how to deal with “gray area” cases generally. In Tuttle, the defendant was convicted and sentenced, filed a notice of appeal, and then escaped from prison. See id. at 704. After Tuttle’s escape, the Utah Supreme Court dismissed his appeal, stating that “one who escapes places himself beyond the reach of the judicial system,” but upon his return to the State’s custody the appeal was reinstated. Id. The Court rejected the State’s argument that Tuttle “abandoned his appeal” by escaping and decided that the “more reasonable assumption [was] that the escapee ha[d] not even considered how his escape [would] affect his appeal rights.” Id. The Court determined that “automatically denying reinstatement of an escapee’s appeal upon a return to custody really amounts to imposition by this Court of a punishment for escape.” Id. at 704-05. Thus, due to the “serious due process and equal protection questions” raised by refusing to reinstate an escapee’s appeal, id. at 705, it could not be concluded that Tuttle voluntarily chose to forgo the right to appeal.

¶29 Manning argues that she “was not clearly and adequately advised of the nature of her right to appeal.” The suggestion is that this incomplete advice — she does not contend she was affirmatively misled about her right to appeal — worked a denial of her right to appeal. However, the record does not support her claim. Her plea affidavit included the following sentence: “I understand that by pleading guilty/no contest I am waiving my rights to file an appeal.” At the plea hearing, however, after explaining the rights associated with trial, the judge correctly stated: “Your right to appeal these pleas of guilty is very limited. You understand that to be the case?” Manning was additionally informed by the court at the plea hearing that she had 30 days to withdraw her guilty plea, which she never sought to do.

¶ 30 It is well established that “a defendant [can] not simply appeal a conviction based on a guilty plea[, but] must first file a motion to withdraw [the] plea, giving the court who took the plea the first chance to consider defendant’s arguments.” Summers v. Cook, 759 P.2d 341, 342 (Utah Ct.App.1988). The “failure to do so extinguishes a defendant’s right to challenge the validity of the guilty plea on appeal.” State v. Reyes, 2002 UT 13,¶ 3, 40 P.3d 630. Thus, even if we assume that Manning was given incomplete information regarding the nature of her right to appeal, she was aware that there was a limited time frame within which she could seek to withdraw her plea, and she admits she never filed a motion to withdraw her plea.

B. Right to Counsel

¶ 31 Manning’s final argument for resen-tencing is that she was “deprived of her right to counsel during the period for perfecting the appeal.” She admits that she “did not inform counsel that she wished to appeal,” but claims that her “trial counsel performed deficiently in failing to advise [her] following sentencing regarding the nature of her right to appeal and the time limit for perfecting an appeal.” To prevail on an ineffective assistance of counsel claim, “a defendant must show, first, that his counsel rendered a deficient performance in some demonstrable manner, which performance fell below an objective standard of reasonable professional judgment and, second, that counsel’s performance prejudiced the defendant.” Bundy v. Deland, 763 P.2d 803, 805 (Utah 1988). See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

¶ 32 In the context of Manning’s claim, “Strickland’s holding that ‘the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances’ ” is applicable. Roe v. Flores-Ortega, 528 U.S. 470, 478, 120 S.Ct. 1029, 1035, 145 L.Ed.2d 985 (2000) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2065). The primary question in this case is whether counsel’s failure to advise Manning about the specific details of her limited right to appeal constitutes deficient performance. The Supreme Court has 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. at 480, 120 S.Ct. at 1036 (emphasis added). The Court explained that such a judgment is based on “all the information counsel knew or should have known” and that “a highly relevant factor ... [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.

¶ 33 In this case, Manning entered into a favorable plea agreement and obtained a sentence that should have been expected. She pled guilty to the charges of unlawful dealing with property by a fiduciary, failure to render a proper tax return, and theft. In exchange, the State dismissed three second degree felony charges and reduced the second degree felony charge of theft by deception to the third degree felony charge of theft. Under the plea agreement, the State also agreed not to file any additional charges arising out of her criminal conduct and not to file any charges against Manning’s daughter for her involvement.

¶ 34 Her attorney stated at the plea hearing that Manning had “participated in the preparation of’ the written plea statement. Manning stated that her attorney had “taken the time to extend himself to adequately and properly serve me, and I’m satisfied with his service.” It is undisputed that she did not request that an appeal be filed. Furthermore, Manning met with her attorney three or four times after sentencing, at least some of which meetings were during the time allowed for filing an appeal, and thus had ample opportunity to air any dissatisfaction with her sentence, concern about her guilty plea, or interest in appealing. We cannot believe that a rational defendant in Manning’s position would have wanted to appeal, and Manning failed to demonstrate to her attorney any interest in appealing. Although Manning ultimately filed an untimely pro se notice of appeal, this late onset of “buyer’s remorse” has no bearing on whether “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. In sum, Manning has failed to demonstrate any objectively deficient performance on the part of her counsel.

CONCLUSION

¶ 35 The trial court correctly denied Manning’s petition for postconviction relief. Its decision is therefore affirmed.

¶ 36 WE CONCUR: JUDITH M. BILLINGS, Presiding Judge and JAMES Z. DAVIS, Judge.

      . This statement was made just weeks before issuance of the Utah Supreme Court's opinion in State v. Ostler, 2001 UT 68, 31 P.3d 528, which held "that the thirty-day limitation on the filing of a motion to withdraw a plea of guilty or no contest runs from the date of final disposition of the case at the district court,” id. at ¶ 11, rather than from the time of entry of the plea.

      . As aptly stated in State v. Johnson, 635 P.2d 36 (Utah 1981), "[n]unc pro tunc, which means 'now for then,' is probably a misnomer for this circumstance, where the court is resentencing to give the judgment of conviction not retroactive but present effect.” Id. at 38 n. 1. Although Johnson suggests changing the terminology to "tunc pro nunc,” id., perhaps it is less confusing to forego the quest for the perfect Latin phrase and simply describe the requested action as "re-sentencing.”

      . For clarity, we include the dates certain rules were adopted as we discuss the evolution of postconvietion relief as dealt with in the Utah Rules of Civil Procedure.

      . The "interests of justice” escape valve alleviates the concern we expressed in Currier v. Holden, 862 P.2d 1357 (Utah Ct.App.), cert. denied, 870 P.2d 957 (Utah 1994). In Currier, we struck down the former statute of limitations governing postconviction relief because it was "a rigid three-month limitation” that did not "include a provision excusing delay on the grounds of good cause.” Id. at 1368 & n. 18. At least partly in response to our decision in Currier, the Legislature enacted the current provision, lengthening the time period to one year and adding the "interests of justice” exception, see Julian v. State, 966 P.2d 249, 251 n. 3 (Utah 1998), which, as we have previously held and affirm today, 'must always [be] considered] ... when a petitioner raises meritorious claims.’ ” Swart v. State, 1999 UT App 96,¶ 4, 976 P.2d 100 (quoting Frausto v. State, 966 P.2d 849, 851 (Utah 1998)(plurality opinion)) (emphasis in original).

      . In so holding, we acknowledge that, prior to the enactment of the PCRA and rule 65C, the Utah Supreme Court stated in dicta that " 'post-conviction proceedings' [are] a branch of habeas corpus” and that the two form a "single constitutional remedy.” Hurst v. Cook, 777 P.2d 1029, 1033-34 (Utah 1989). In Renn v. Utah State Bd. of Pardons, 904 P.2d 677 (Utah 1995), the Court explained:
      In its early history, a writ of habeas corpus was classically used to challenge the lawfulness of a physical restraint under which a person was held or the jurisdiction and sentence of a court that convicted a person.... Later, the scope of the writ was expanded to provide a post-conviction remedy in unusual circumstances to determine whether a person was convicted in violation of principles of fundamental fairness or whether the sentence imposed is void.... In addition, a writ of habeas corpus may be used to challenge cruel or oppressive conditions of imprisonment.

        Id. at 681-82 (footnote omitted). See also Petersen v. Utah Bd. of Pardons, 907 P.2d 1148, 1153 & n. 2 (Utah 1995) ("A challenge to the authority of a governmental agency or officer to restrain a person's liberty is classically raised by a petition for a writ of habeas corpus.... It can also be used to challenge, for example, the terms and conditions of confinement[,] or, in certain cases, to challenge the authority of a private person to restrain the liberty of another.''); Dunn v. Cook, 791 P.2d 873, 875 (Utah 1990) ("The function of a writ of habeas corpus as a post-conviction remedy is to provide a means for collaterally attacking convictions when they are so constitutionally flawed that they result in fundamental unfairness and to provide for collateral attack of sentences not authorized by law.”).
      Our decision today is not fundamentally inconsistent with Utah’s pre-PCRA jurisprudence. Though postconviction relief may have its roots in the ancient writ of habeas corpus, it does not follow that the two may be used interchangeably, especially given the subsequent enactment of the PCRA. See Spain v. Stewart, 639 P.2d 166, 168 & n. 2 (Utah 1981) (notifying that petitioner, who was charged but not convicted for possession of a controlled substance and was being held in county jail, properly challenged the legality of his restraint via rule 65B(f) (now rule 65B(b)), which is "the traditional habeas corpus [procedure for] assuring that a person is not ‘unjustly imprisoned or otherwise restrained of his liberty’ thus, the "postconviction hearing provision [of rule] 65B(i)” (now rule 65C) did not apply); Lucero v. Warden, 841 P.2d 1230, 1231 (Utah Ct.App.1992) (noting difference between rule 65B(b) (now rule 65C) and rule 65B(c) (now rule 65B(b)), and stating, "[b]ecause petitioner challenges the terms and conditions of his confinement, subpar-agraph (c) clearly applies”). Cf. Monson v. State, 953 P.2d 73, 73-74 (Utah 1998) (stating that postconviction claims of defective plea colloquy and ineffective assistance of counsel are governed by rule 65B(b) (now rule 65C)); Padilla v. State Bd. of Pardons & Parole, 947 P.2d 664, 667 (Utah 1997) (stating that "Rule 65B(c) [governing wrongful restraint on personal liberty] cannot be used to challenge Board [of Pardons] actions that might be challenged under Rule 65B(e) [governing wrongful use of judicial authority]”) (citation omitted); Earle v. Warden, 811 P.2d 180, 181 (Utah 1991) (concluding that postconviction petition alleging that trial court committed reversible error in "refusing to allow [petitioner] to withdraw his guilty plea” is governed by rule 65B(i) (now rule 65C)); Andrews v. Shulsen, 773 P.2d 832, 833 (Utah 1988) (petition challenging conviction based on erroneous jury instruction was "governed by Utah Rule of Civil Procedure 65B(i)” (now 65C)); Lancaster v. Cook, 753 P.2d 505, 506 (Utah 1988) (postconviction claims "challenging] the validity of [petitioner's] guilty plea” are governed by rule 65B(i) (now rule 65C)); Andrews v. Morris, 677 P.2d 81, 85 (Utah 1983) (postconviction claims alleging "denial of due process and equal protection” are properly "reviewed] under [r]ule 65B(i)” (now rule 65C)); Andrews v. Morris, 607 P.2d 816, 818, 821 (Utah) (petitioner’s postconviction claims that he was, inter alia, "deprived ... of a trial by a fair and impartial jury” were governed by rule 65B(i) (now rule 65C)), cert. denied, 449 U.S. 891, 101 S.Ct. 254, 66 L.Ed.2d 120 (1980).
      Other jurisdictions, recognizing the difference between postconviction relief focused on a conviction and extraordinary relief based on wrongful restraint of personal liberty, i.e., the traditional writ of habeas corpus, have likewise held that postconviction relief is the proper avenue for challenging a conviction. See, e.g., Jacobs v. Carmel, 869 P.2d 207, 209-10 (Colo.1994) (en banc) (holding that petitioner's claims — alleging ineffective assistance of counsel and challenging his plea — are properly resolved via "postconviction motion” and relief "may not be obtained by writ of habeas corpus”); Abbott v. State, 129 Idaho 381, 924 P.2d 1225, 1228 & n. 1 (Idaho Ct.App.1996) (stating that "once the time for a direct appeal has expired, the exclusive vehicle to present a claim that a conviction or sentence was entered in violation of constitutional or statutory law is an application for post-conviction relief under the [Idaho Uniform Post-Conviction Procedure Act],” although "[o]ther types of challenges to an inmate's incarceration ... including challenges to the conditions of confinement, may continue to be asserted in a petition for a writ of habeas corpus”); People ex rel. Walker v. Twomey, 9 Ill.App.3d 544, 291 N.E.2d 833, 835 (1973) (holding that "[a] claim of denial of the constitutional right to counsel cannot be determined on a writ of habeas corpus”; rather, such claim is properly resolved via "post-conviction petition”); Bates v. Czemiak, 187 Or.App. 8, 66 P.3d 519, 520 (2003) (affirming dismissal of habeas corpus petition challenging guilty plea and noting that "[a] petition for post conviction relief is the exclusive means for challenging the lawfulness of a criminal conviction and the proceedings on which it was based[; a]n individual may not avail himself of habeas corpus relief for this purpose”), review denied, 69 P.3d 1232 (Or.2003).

      . See State v. Menzies, 889 P.2d 393, 399 n. 3 (Utah 1994) (stating that “[Horizontal stare deci-sis does not ... require that a panel adhere to its own or another panel's prior decision with the same inflexibility as does vertical stare decisis[; i]nstead, although it may not do so lightly, a panel may overrule its own or another panel’s decision where 'the decision is clearly erroneous’ ”) (citation omitted), cert. denied, 513 U.S. 1115, 115 S.Ct. 910, 130 L.Ed.2d 792 (1995). Given the Utah Supreme Court’s pending consideration of this court's opinion in State v. Rees, 2003 UT App 4, 63 P.3d 120, cert. granted, 73 P.3d 946 (Utah 2003), we highlight the flaw in its analysis but see no need to do more.

      We do note that it is of little practical consequence that Rees enunciated a four-part test, borrowed from the Ninth Circuit, "that a petitioner must satisfy before coram nobis type relief can be granted," id. at ¶ 14, since those factors substantially track the current requirements of the PCRA. See Utah Code Ann. §§ 78-35a-104, - 106 (2002). Nevertheless, while the Rees factors may well serve as a useful guideline in determining whether a postconviction petition is meritorious, the substantive and procedural provisions outlined in the PCRA control and should be the primary frame of reference in evaluating such petitions.

      . Manning’s position on appeal is circular, at best. She seeks to invalidate her guilty plea because she was not fully advised of her right to appeal, which she insists should now entitle her to the opportunity to appeal. If resentenced, her principal complaint on appeal — that she had been misinformed about her right to appeal when her guilty plea was taken — would necessarily be mooted.

      . Manning argues that the time for appeal could have been extended under rule 4(e) of the Utah Rules of Appellate Procedure. See Utah R.App. 4(e) (stating that "[t]he trial court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the [30-day period] prescribed by paragraph (a) of this rule”). However, this argument is without merit because Manning did not file a motion pursuant to rule 4(e) and there is no "showing of excusable neglect or good cause” that would have given the trial court discretion to extend the time for filing an appeal. Id.

      . Manning claims that the court erred in its failure to inform her, after the issuance of the Utah Supreme Court's decision in State v. Ostler, 2001 UT 68, 31 P.3d 528, that she had 30 days from sentencing in which to file a motion to withdraw her plea. See supra note 1. However, she concedes that this error does not affect this appeal because she never sought to withdraw her guilty plea.

      . As indicated above, see supra note 7, it is difficult to see where this argument, even if successful, leads Manning. The usual thrust of an argument raising a problem with a plea colloquy is that the plea was not knowingly and voluntarily entered due to the trial court's failure to comply with rule 11. See Utah R.Crim. P. 11. See also In re Hill, 621 P.2d 705, 706-07 (Utah 1980) (holding that unrepresented defendant was allowed to withdraw his guilty plea due to trial court’s failure to explain the consequences of his plea); State v. Tarnawiecki, 2000 UT App 186, ¶¶ 16-18, 5 P.3d 1222 (holding that defendant was allowed to withdraw guilty plea due to trial court's failure to advise her of right to speedy trial before impartial jury). In other words, with reference to the cases cited, Tamawiecki would likely not have pled guilty if she had known of her right to a speedy trial before an impartial jury, and Hill would not have pled guilty if he had known the consequences of pleading guilty to a felony. That logic does not apply to Manning, who knew her rights associated with trial and the consequences of her plea. Her only claim is that she did not fully understand the nature of her right to appeal. The court stated that her “right to appeal these pleas of guilty is very limited,” and the plea statement indicated that by pleading guilty she waived her "rights to file an appeal.” Even if she understood that her right to appeal was more limited than it actually was, it is illogical for her to argue that she would not have entered a guilty plea if she had known that the right of appeal was actually more extensive than she believed. In fact, she is in the same position as a defendant who pled guilty after being told that she had the right to be acquitted within the next week, when in fact she only had the right to a speedy trial before an impartial jury. She is also in the same position as a defendant who pled guilty even though he was told that the maximum punishment was being burned at the stake, when in fact a brief jail sentence was the maximum available sanction. There is no prejudice in these situations, where a typical defendant would be even less likely to plead guilty in light of the information they received than would a defendant who had been properly advised. Furthermore, we note that the information provided by the trial court during the plea colloquy was in line with rule 11, which requires the court to advise, as concerns appeal rights, only "that the right of appeal is limited” before accepting a guilty plea. Utah R.Crim. P. 11(e)(8).

      . She does not claim that she ever asked counsel for a fuller explanation of exactly what her "limited” appeal rights entailed, notwithstanding having ample opportunity to do so.

      . Given Manning's favorable plea bargain and sentence, the available grounds for appeal appear to be very limited. She could appeal her sentence if she believed it was unlawful and she could challenge the voluntariness of her guilty plea if the trial court denied a motion for leave to withdraw the plea. The ordered one-year of incarceration, with credit for time served, was well within the range of the trial court’s discretion. The two third degree felonies each carried a possible sentence of zero to five years and the second degree felony carried a possible sentence of one to fifteen years. Manning never filed a motion to withdraw her guilty plea, even though she was informed at the plea hearing that she had 30 days to do so, and she never suggested that the plea was involuntary. Her claim is essentially that she wants to appeal because she was not fully informed of the nature of the right to appeal. This type of circular reasoning, more fully critiqued in notes 7 and 10, does not provide a basis for a rational defendant to appeal or a reason to invalidate the plea.


source: Caselaw Access Project

author: THORNE, Judge:

license: Public Domain

text:
    2004 UT App 95
    STATE of Utah, Plaintiff and Appellee, v. Victor VIALPANDO, Defendant and Appellant.
    No. 20020405-CA.
    Court of Appeals of Utah.
    April 1, 2004.

      Shannon N. Romero, Salt Lake City, for Appellant.
    Alicia H. Cook, Salt Lake City, for Appel-lee.
    Before Judges GREENWOOD, ORME, and THORNE.
   OPINION

THORNE, Judge:

¶ 1 Victor Vialpando appeals his conviction for driving under the influence of alcohol, a class B misdemeanor, in violation of Utah Code Annotated section 41-6-44 (1998). We affirm.

BACKGROUND

¶ 2 In the early morning hours of July 2, 2000, Trooper Jeffery Plank of the Utah Highway Patrol was patrolling the west side of Salt Lake County. As he drove northbound on 3200 West, the trooper noticed two people involved in a confrontation. A man, whom the trooper eventually identified as Vialpando, was chasing a woman across 3200 West and down the street. The trooper heard shouting from one or both of them. It was obvious to the trooper that the woman was not being playful, but was in fact fleeing from Vialpando. Suspecting possible violence, the trooper activated his overhead lights, sounded his siren, and looked for the closest opportunity to turn around. Soon thereafter, Vialpando abandoned the chase and crossed the street. The woman then left the scene. After crossing the street, Vial-pando walked into a nearby parking lot where he got into a parked car. After observing what had occurred, the trooper pulled directly behind Vialpando’s car. The trooper then approached Vialpando to ask about the confrontation.

¶ 3 As he approached Vialpando’s car, the trooper noted that Vialpando was seated in the driver seat, the keys were in the ignition, the headlights were on, and Vialpando’s seat-belt was secured. He then proceeded to question Vialpando. However, before Vial-pando answered any of the trooper’s questions, the trooper noticed that Vialpando’s eyes were bloodshot and that he smelled strongly of alcohol. As Vialpando attempted to answer the trooper’s questions, the trooper noticed that Vialpando’s speech was slurred.

¶ 4 Consequently, the trooper asked Vial-pando to get out of the vehicle and to submit to a few, routine field sobriety tests. Vial-pando complied. In the trooper’s opinion, Vialpando failed each test. The trooper therefore arrested Vialpando for driving under the influence of alcohol, handcuffed him, and read him his Miranda rights. He also asked whether Vialpando would submit to an intoxilyzer test. Vialpando consented. The trooper placed him in the patrol car’s front seat and proceeded to drive to the Sorenson Center — one of the central testing points within Salt Lake County. During the drive, sometime before 1:45 a.m., Vialpando told the trooper that he needed to vomit. The trooper stopped the car, opened the passenger side door, and allowed Vialpando to vomit outside. At 1:45 a.m., after Vialpando had finished vomiting, and after the trooper had ensured that his mouth and throat were clear of foreign matter, the trooper continued toward the Sorenson Center.

¶ 5 The trooper arrived at the Sorenson Center a few minutes before two o’clock in the morning, sat Vialpando down, and prepared the intoxylyzer machine for Vialpan-do’s test. After running the tests required to ensure that the machine was operating properly, the trooper tested Vialpando. According to the machine printout, Vialpando breathed into the machine at 2:00 a.m. and his blood alcohol volume was .175—well above the legal limit in Utah.

¶ 6 Vialpando was subsequently tried and convicted of driving under the influence of alcohol, and sentenced to 180 days in jail, which was suspended, twelve months of probation, and a $1,300.00 fíne. He now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 7 Vialpando presents three arguments on appeal. He first argues that the trial court erred in denying his motion to suppress the evidence of his intoxication because the trooper lacked the requisite reasonable articulable suspicion necessary to initially detain him. “In reviewing a trial court’s ruling on a motion to suppress evidence, we will not overturn its factual findings absent clear error. The trial court’s legal conclusions, however, we review for correctness.” State v. Valenzuela, 2001 UT App 332, ¶ 8, 37 P.3d 260 (quotations, citations, and alteration omitted).

¶ 8 Vialpando next argues that the trial court erred in admitting the results of his intoxilyzer test. We review a trial court’s decision to admit or preclude evidence to determine whether the court acted within its permitted range of discretion. See Salt Lake City v. Garcia, 912 P.2d 997, 999 (Utah Ct.App.1996).

¶ 9 Finally, Vialpando argues that the jury instructions concerning “actual physical control” were incorrect as a matter of law. Consequently, the jury was improperly instructed and Vialpando erroneously convicted. We review a trial court’s jury instructions on the elements of the crime for correctness. See American Fork v. Carr, 970 P.2d 717, 719 (Utah Ct.App.1998).

ANALYSIS

¶ 10 Vialpando first argues that the trooper lacked reasonable articulable suspicion sufficient to justify the initial detention.

In determining whether the [trooper] had a reasonable articulable suspicion to justify [Vialpando’s initial] detention, we “look to the totality of the circumstances ... to determine if there was an objective basis for suspecting criminal activity.” In considering the totality of the circumstances, we “ ‘judge the officer’s conduct in light of common sense and ordinary human experience ... and we accord deference to an officer’s ability to distinguish between innocent and suspicious actions.’ ”

State v. Beach, 2002 UT App 160, ¶ 8, 47 P.3d 932 (ellipses in original) (citations omitted).

¶ 11 Here, the trooper testified that on July 2, 2000, he was patrolling his regular area on the west side of Salt Lake County. After midnight, as he drove along 3200 West, near the South Frontage road, he witnessed Vialpando chasing a woman across 3200 West. The trooper further testified that he heard yelling and described the situation in terras of an altercation, a confrontation, and a fight. Under these circumstances, the trooper concluded that the woman might be in danger.

¶ 12 From these facts, we have no difficulty concluding that the trooper’s initial detention of Vialpando was reasonable. The incident took place after midnight. It was dark, and nothing surrounding the chase would lead a person to conclude it was playful. Instead, the trooper saw Vialpando chasing a woman across the street while the woman attempted to flee. The trooper also heard one or both of the people yelling during the chase. Among the legitimate suspicions that arise under these facts is domestic violence. Thus, the trooper’s witnessing of the late night chase, involving a woman who clearly did not welcome the pursuit, coupled with the clear indication that the chase was not play-ful, fully supports the trooper’s suspicion that something criminal- had occurred or was about to occur. Accordingly, the trooper’s decision to temporarily detain Vialpando while investigating the situation was reasonable.

¶ 13 Vialpando next argues that the trial court erred in admitting the results of his intoxilyzer exam. In essence, Vialpando argues that the State failed to make the required foundational showing; consequently, the trial court erred in concluding that a proper foundation had been laid for the test’s admission into evidence. “A trial court’s determination that there was a proper foundation for the admission of evidence ‘will not be overturned unless there is a showing of an abuse of discretion.’ ” State v. Torres, 2003 UT App 114, ¶ 7, 69 P.3d 314 (citation omitted).

¶ 14 To ensure that the results of an intoxilyzer test are reliable, the State must present evidence, inter alia, that: (1) the intoxilyzer machine had been properly checked by a trained technician, and that the machine was in proper working condition at the time of the test; (2) the test was administered correctly by a qualified operator; and (3) a police officer observed the defendant during the fifteen minutes immediately preceding the test to ensure that the defendant introduced nothing into his or her mouth during that time. See In re Oaks, 571 P.2d 1364, 1367 (Utah 1977) (Maughan, J., dissenting) (citing State v. Baker, 56 Wash.2d 846, 355 P.2d 806, 809-10 (1960) (articulating foundation elements for intoxilyzer tests)); see also Salt Lake City v. Womack, 747 P.2d 1039, 1041 (Utah 1987) (affirming the necessity of the pre-test observation period). Vial-pando argues that the arresting trooper, who also administered the intoxilyzer test, failed to satisfy the observation requirement. Vial-pando’s argument centers on his claim that the observation period itself was insufficient, or in the alternative, that the nature of the trooper’s observation was unsatisfactory.

¶ 15 At the suppression hearing, the trooper testified that he arrested Vialpando after Vialpando failed a series of field sobriety tests. The trooper handcuffed Vialpando’s hands behind his back, read him his Miranda rights, and placed him in the patrol car’s front passenger seat. The trooper then asked Vialpando if he was “willing to take the [intoxilyzer] test.” Vialpando consented to the test, and, at about 1:37 a.m., the pair drove away -from the scene of the arrest. Soon thereafter, Vialpando told the trooper that he had to vomit. The trooper quickly pulled over and allowed Vialpando to vomit outside of the car.

¶ 16 When Vialpando was finished, the trooper used his flashlight to check in Vial-pando’s mouth to ensure that it was clear of foreign matter. Satisfied that Vialpando’s mouth was empty, the trooper began the required observation period at 1:45 a.m. The trooper arrived with Vialpando at the Soren-son Center before 2:00 a.m., and ran all of the pre-tests required to correctly administer an intoxilyzer test. Then, according to the readout, which was also admitted into evidence, the trooper tested Vialpando at 2:00 a.m., exactly fifteen minutes after the trooper began the observation period.

¶ 17 The trial court found that the trooper observed Yialpando for the required fifteen-minute period and admitted the test results. In so ruling, the trial court acted within its permitted range of discretion. Although it is possible to conclude that the trooper was not credible in his assessment of the time that passed during his observation period, such assessments clearly lie in the hands of the trial court, and absent clear error this court is in no position to speculate on the credibility of witnesses. See State v. Hansen, 2002 UT 125, ¶ 48, 63 P.3d 650.

¶ 18 Nor are we willing to adopt the position urged by Yialpando concerning the quality of the trooper’s observation. The purpose of the observation period is to ensure that a defendant does not introduce anything into his mouth that might taint the test results. While this requirement serves to ensure that the defendant places no food, drink, or smoke into his mouth during the observation period, its most important function is to ensure that any alcohol in a suspect’s mouth is absorbed into the system before the test is administered. See State v. Gardner, 126 N.M. 125, 967 P.2d 465, 469 (Ct.App.1998). We do not believe that this requires the undivided attention of the observing officer. Instead, “the level of surveillance must be such as could reasonably be expected to” ensure that no alcohol has been introduced into the suspect’s mouth, “from the outside or by belching or regurgitation,” during the entire observation period. State v. Carson, 133 Idaho 451, 988 P.2d 225, 227 (Ct.App.1999). The purpose of the observation period is satisfied if (1) the suspect was in the officer’s presence for the entire period; (2) it is clear that the suspect had no opportunity to ingest or regurgitate anything during the minimum observation period; and (3) nothing impeded the officer’s powers of observations during the observation period. See id.

¶ 19 Here, the trooper placed Vialpando next to him in the front passenger seat of the patrol car, with Vialpando’s hands handcuffed behind his back, preventing Vialpando from placing anything in his mouth. Vial-pando sat next to the trooper for the entire fifteen-minute period, and during that time the trooper monitored, both visually and aurally, to ensure that Vialpando’s mouth remained clear. The late hour and the minimal traffic presented little or no distraction to the trooper during the observation period, allowing the trooper to focus on driving and observing Vialpando. Moreover, unlike the situation presented in Carson, which Vialpando proffers as a nearly identical case, here there is no evidence that the weather was foul, or that the trooper’s hearing was impaired. See Carson, 988 P.2d at 227. Furthermore, although Vialpando vomited both before and after the observation period, in both cases he informed the trooper of his situation before vomiting. Taken together, the trooper’s monitoring of Vialpando, coupled with Vial-pando’s previous, as well as subsequent, act of alerting the trooper to his need to vomit, supports a reasonable belief that Vialpando’s mouth was clear for the entire observation period. Therefore, the trial court could properly conclude that the purpose of the observation period was satisfied and that the intoxilyzer test results were reliable.

¶20 Finally, Vialpando argues that the trial court improperly instructed the jury concerning the elements required to find that he was in “actual physical control” of a vehicle. We disagree.

¶ 21 Section 41-6-44(2) states

A person may not operate or be in actual physical control of a vehicle within this state if the person: (i) has a blood or breath alcohol concentration of .08 grams or greater as shown by a chemical test given within two hours after the alleged operation or physical control.

Utah Code Ann. § 41-6-44(2)(a)-(2)(a)(i) (1998) (emphasis added). Vialpando argues that the controlling case interpreting the phrase “actual physical control” is State v. Bugger, 25 Utah 2d 404, 483 P.2d 442 (1971). To the extent that the Bugger court defined the phrase, Vialpando is correct. See id. at 443 (“ ‘[A]ctual physical control’ in its ordinary sense means ‘existing’ or ‘present bodily restraint, directing influence, domination or regulation.’ ” (citations omitted)).

¶22 However, as we stated in State v. Barnhart, 850 P.2d 473 (Utah Ct.App.1993), “the Bugger decision is not particularly helpful to our analysis and does not serve as a guide to the trial courts and law enforcement and prosecutorial officials of this state.” Id. at 478 n. 2. Consequently, because Bugger offers little guidance concerning the scope of “actual physical control,” we concluded that the determination must be made through examining the “totality of the circumstances.” Id. at 478. Thus, we referenced a nonexclusive list of factors that could bear on the determination, and noted that “the statute is intended to prevent intoxicated persons from causing harm by apprehending them before they operate a vehicle.” Id. at 477-78. Finally, we made clear that “a person need not actually move[ ] a vehicle, but only needs to have an apparent ability to start and move the vehicle in order to be in actual physical control.” Id. at 477 (citation omitted).

¶ 23 Notably, the approach we adopted in Barnhart comports with the approach taken by the majority of jurisdictions in which similar statutory language can be found. See, e.g., Farley v. City of Montgomery, 677 So.2d 1251, 1252-53 (Ala.Crim.App.1995) (“Whether one is in ‘actual physical control’ of a vehicle is determined by a totality-of-the-circumstances test.” (quotations and citations omitted)); Kingsley v. State, 11 P.3d 1001, 1003 (Alaska Ct.App.2000) (stating “a person may exercise actual physical control over a vehicle without making active attempts to operate it”); State v. Love, 182 Ariz. 324, 897 P.2d 626, 628 (1995) (“We find it preferable, as in other cases, to allow the trier of fact to consider the totality of the circumstances in determining whether defendant was in actual physical control of his vehicle.”); accord Savage v. State, 252 Ga.App. 251, 556 S.E.2d 176, 180 (2001), cert. denied 2001 WL 1346297, 2002 Ga. LEXIS 275 (Ga. March 25, 2002); People v. Eyen, 291 Ill.App.3d 38, 225 Ill.Dec. 249, 683 N.E.2d 193, 199 (1997); State v. Johnson, 130 N.M. 6, 15 P.3d 1233, 1239-40 (2000); State v. Lewis, 131 Ohio App.3d 229, 722 N.E.2d 147, 150 (1999); cf. State v. Wiggs 60 Conn.App. 551, 760 A.2d 148, 150 (2000) (examining the meaning of operating a motor vehicle with results similar to our analysis of “actual physical control”).

¶ 24 Vialpando cites to, and seemingly understands, the implications of Barnhart. However, he argues that Barnhart was decided in error because it gave insufficient deference to, and in fact insufficiently analyzed, Bugger, and instead relied upon civil driver license revocation cases in crafting the applicable standard. Specifically, Vialpando argues that this court failed to require the State to prove an intent “to operate or exercise control over a motor vehicle,” and that we cannot look to civil cases for guidance in crafting our analysis for criminal cases. Vialpando is incorrect.

¶25 First, contrary to Vialpando’s argument, Bugger did not establish a requirement that the State prove “a vehicle’s occupants actively and affirmatively chose to exercise dominion and control over a motor vehicle.” Instead, the State is required to prove that a defendant had an “ ‘existing’ or ‘present bodily restraint, directing influence, domination or regulation’ ” over the vehicle. Bugger, 483 P.2d at 442 (citation omitted). The defendant’s conviction in Bugger was reversed not because the state failed to show intent, but because “the facts [did] not bring the ease within the wording of the statute.” Id. The defendant was arrested after being discovered asleep in his car with the car “completely off traveled portions of the highway.” Id. at 442. Thus, the court determined that the defendant was not in physical control of the vehicle and did not address the issue of intent. Consequently, we conclude that rather than reading an element of intent into the statute, the Bugger court merely determined that “actual physical control” is necessary to violate the statute.

¶ 26 Moreover, we addressed whether the statute required a showing of intent in Barn-hart and determined that “[it is] permissible for a trial court to find that a person had actual physical control over a vehicle even though the person did not subjectively intend to exercise it.” 850 P.2d at 479. Underlying this conclusion was our determination that “the statute is intended to prevent intoxicated persons from causing harm by apprehending them before they operate a vehicle.” Id. at 478. We further concluded that “a person need not actually move, or attempt to move, a vehicle, but only needs to have an apparent ability to start and move the vehicle in order to be in actual physical control.” Id. (citation omitted); see also State v. Johnson, 130 N.M. 6, 15 P.3d 1233, 1239 (2000) (“The policy underlying the DWI statute is to prevent individuals from driving or exercising actual physical control over a vehicle when they, either mentally or physically, or both, are unable to exercise the clear judgment and steady hand necessary to handle a vehicle with safety both to themselves and the public.” (quotations and citation omitted)); State v. Blanton, 121 Ohio App.3d 162, 699 N.E.2d 136, 141 (1997) (“The clear purpose of [the DWI statute] is to discourage persons from putting themselves in the position in which they can potentially cause the movement of a motor vehicle while intoxicated or under the influence of any drug of abuse.” (quotations and citation omitted)). Accordingly, we conclude that Bugger does not require the State to prove intent to demonstrate that the statute has been violated. Rather, because both Bugger and section 41-6-44 are silent concerning culpable mental state, a violation of the statute occurs when a person “intentionally, knowingly, [or] recklessly” takes “actual physical control” of a vehicle, while intoxicated. Utah Code Ann. §§ 76-2-101(1), -102 (1999).

¶ 27 The second flaw in Vialpando’s Barn-hart argument concerns our use of civil case law to guide our analysis. Although Vialpan-do argues that this court cannot rely on civil case law for guidance in criminal cases, he cites neither case law, nor statutory authority to support this proposition. Consequently, we decline to further address this claim. See State v. Thomas, 961 P.2d 299, 305 (Utah 1998). Accordingly, Vialpando’s final argument is without merit and the trial court properly instructed the jury.

CONCLUSION

¶28 Trooper Plank acted reasonably in detaining Vialpando after witnessing the late night chase on 3200 West. The trooper articulated sufficient facts to support the detention and we conclude that any reasonable police officer in the same situation would have also detained Vialpando to investigate the situation. Moreover, the trial court did not err in finding that the State had laid the proper foundation to support the admission of the intoxilyzer test results. Finally, the trial court did not err in instructing the jury concerning the factors necessary to show that Vialpando was in “actual physical control” of a vehicle at the time of his detention. Accordingly, we affirm Vialpando’s conviction.

¶ 29 WE CONCUR: PAMELA T. GREENWOOD and GREGORY K. ORME, Judges.

      . Vialpando was also charged with possession of an open container in a vehicle, in violation of Utah Code Annotated section 41-6-44.20 (1998); however, for reasons unclear from the record, he was not tried on this charge.

      . It is understood, of course, that any detention, regardless of the justification, must be limited in scope and duration to the circumstances that prompted the detention. See State v. Godina-Luna, 826 P.2d 652, 654 (Utah Ct.App.1992) (stating "the length and scope of the detention must be strictly tied to and justified by the circumstances which rendered its initiation permissible” (quotations, citations, and alterations omitted)). Moreover, it is axiomatic that once the officer's suspicion has been alleviated the officer must allow the detainee to go on his way without further interference by the officer. See State v. Humphrey, 937 P.2d 137, 143 (Utah Ct.App.1997) (acknowledging that detentions resulting from a reasonable suspicion of criminal activity are focused on confirming or dispelling the suspicion that prompted the detention); Godina-Luna, 826 P.2d at 654-55 (stating "[o]nce the reasons for the [temporary detention] have been satisfied, the individual must be allowed to proceed on his or her way”); see also Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968). Although these rules do not control the outcome in the instant case, we highlight them to ensure that this case creates no misunderstanding concerning their viability.

      . It is of no little consequence that domestic violence has come to be recognized as a heightened concern for both police officers and society in general. See State v. Comer, 2002 UT App 219, ¶¶ 21-26, 51 P.3d 55 (noting that reports of domestic violence can create the foundation for a probable cause determination), cert. denied, 59 P.3d 603 (Utah 2002).

      . The factors articulated in Barnhart include
      (1) whether [the] defendant was asleep or awake when discovered;
      (2) the position of the automobile;
      (3) whether the automobile’s motor was running;
      (4) whether [the] defendant was positioned in the driver's seat of the vehicle;
      (5) whether [the] defendant was the vehicle's sole occupant;
      (6)whether [the] defendant had possession of the ignition key;
      (7) [the] defendant’s apparent ability to start and move the vehicle;
      (8) how the car got to where it was found; and
      (9) whether [the] defendant drove it there.

        State v. Barnhart, 850 P.2d 473, 477 (Utah Ct.App.1993) (quotations and citations omitted).

      . Utah Code Annotated section 76-2-102 establishes that: "Every offense not involving strict liability shall require a culpable mental state, and when the definition of the offense does not specify a culpable mental state and the offense does not involve strict liability, intent, knowledge, or recklessness shall suffice to establish criminal responsibility.” Utah Code Annotated section 41-6-44(2) prohibits a person with a blood alcohol concentration of .08 grams or more from operating or being "in actual physical control of a vehicle.” Utah Code Ann. § 41-6-44(2) (1998). It does not, however, specify any culpable mental state; thus, the State is not required to prove that Vialpando intended to be in "actual physical control” of the vehicle.