Chernowski v. State

• Court: Georgia Court of Appeals
• Writing for the Court: DILLARD, Judge.
• Citation: Chernowski v. State, 330 Ga. App. 702, 769 S.E.2d 126 (Ga. App. 2015)
• Decision Date: 12 February 2015
• Docket Number: No. A14A2151.,A14A2151.
• Parties: CHERNOWSKI v. The STATE.

330 Ga.App. 702

769 S.E.2d 126

CHERNOWSKI

v.The STATE.

No. A14A2151.

Court of Appeals of Georgia.

Feb. 12, 2015.

Mary Trachian–Bradley, Atlanta, Steven Jay Strelzik, for Appellant.

R. Leon Benham, Asst. Sol.-Gen., Carmen D. Smith, Sol.-Gen., Pamela Cole Henderson, Asst. Sol.-Gen., for Appellee.

Opinion

DILLARD, Judge.

Dora Chernowski appeals the verdict and judgment entered against her on counts for driving under the influence and failure to maintain lane, for which she was tried and convicted after a single-vehicle accident in December 2004.¹ On appeal, Chernowski contends that (1) her due-process rights were violated by the trial-court clerk's failure to transmit a complete record and a seven-year delay in transmitting the record and (2) the trial court erred in denying her pretrial motion to suppress evidence and her renewed motion at trial as to that same evidence. For the reasons set forth infra, we affirm Chernowski's convictions but vacate and remand the case to the trial court for resentencing.

Viewed in the light most favorable to the jury's guilty verdict,² the record reflects that on December 26, 2004, emergency personnel were dispatched at approximately 9:30 p.m. to the location of a single-car accident on a residential portion of Spalding Drive in Fulton County. And upon arrival, Chernowski's vehicle was found turned on its side against a utility pole with Chernowski standing up inside the vehicle, trying to escape. A fire-department crew removed the vehicle's windshield to extract Chernowski, and she was immediately treated by medical personnel with a neck brace, strapped to a backboard, and transported to a hospital for additional treatment and evaluation.

Prior to Chernowski being transported from the scene, the responding police officer made brief contact with her as she was being treated by medical personnel. The officer did not perform any field-sobriety tests upon Chernowski because she was undergoing treatment until her transfer to the hospital, but he testified at trial that, upon contact with her, he noticed that she spoke with slurred speech, had very watery eyes, and reeked of a “very strong odor” of an alcoholic beverage. Additionally, Chernowski admitted to the officer that she had consumed alcohol as recently as 45 minutes prior to the accident. And based upon these factors, the officer was convinced that Chernowski was driving under the influence of alcohol to the extent that it was less-safe to do so. The officer's trial testimony was corroborated by that of the fire-department crew chief, who also testified that Chernowski spoke with slurred speech and smelled of an alcoholic beverage, and that he suspected she had been driving under the influence of alcohol.

After Chernowski's vehicle was impounded, the responding officer drove to the hospital where he immediately issued citations to Chernowski for driving under the influence and failure to maintain lane. He testified that because Chernowski was still undergoing medical treatment, he left the citations with her belongings rather than with her personally. And after having Chernowski sign the citations and explaining the charges, the officer read to her Georgia's Implied Consent law and asked for her permission to administer a blood test, to which Chernowski agreed. The results of the test showed a blood-alcohol level of 0.228 grams.

Thereafter, Chernowski was charged by accusation for DUI per se,³ DUI less-safe,⁴ and failure to maintain lane.⁵ She was then tried by a jury in August 2007, convicted on all counts, and the trial court then sentenced her on each of those counts. Chernowski timely filed a notice of appeal on August 24, 2007, and the trial court granted a supersedeas bond that same day. Nevertheless, the appeal was not docketed with this Court until July 25, 2014, which forms the basis of Chernowski's first enumeration of error. We will address each of her enumerations of error in turn.

1. Chernowski first contends that her due-process rights were violated by the trial-court clerk's failure to timely transmit the record to this Court for docketing and resolution of her appeal. As such, she asks that we vacate the verdict and judgment entered against her.⁶

As previously stated, the record reflects that Chernowski timely filed her notice of appeal on August 24, 2007, but the appeal was not docketed with this Court until nearly seven years later on July 25, 2014. Her notice of appeal requested that the clerk “omit nothing from the record on appeal,” and noted that a “[t]ranscript of evidence and proceedings will be filed for inclusion in the record on appeal.”

The record transmitted from the trial court shows that on July 26, 2012, the clerk's office sent a letter to Chernowski's counsel requesting payment of $83 for preparation of the appellate record, noting that preparation of the record would not begin until payment was received, and asking that any transcripts to be included in the record be filed as soon as possible. There is no explanation or any indication in the record as to whether Chernowski's counsel ever checked the status of the appeal with the trial court before receiving that letter almost five years after filing the notice of appeal. There is, however, a case-summary sheet included in the record, which indicates that the “file” was “checked out to appeals” on July 20, 2012, but that the file was later “reconstructed” and “recreated.” However, again, there is no other explanation as to why this was necessary or what this notation even signifies.

On August 23, 2012, Chernowski paid the requested $83 for the appellate record. And then on September 5, 2012, the trial-court clerk sent a second letter to Chernowski's counsel as notification that a transcript still had not been filed with the court and, accordingly, that the appellate record could not be completed for transmission until receipt of same.⁷ Thereafter, the record contains no indication of what transpired until December 31, 2012, when the State filed a motion to dismiss Chernowski's appeal.

The State's motion to dismiss was scheduled for a February 15, 2013 hearing, but no hearing was held until July 24, 2013. It is undisputed between the parties that a hearing was held on this date, but no such hearing is reflected on the case-summary sheet included by the trial-court clerk's office in the record on appeal. Moreover, no transcript from this hearing was included with the appeal, and the record does not include any order by the trial court denying the State's motion. However, what is reflected by the record is that on August 12, 2013, Chernowski filed a motion for an extension of time in which to file a trial transcript, noting that at the July 24, 2013 hearing, the trial court ordered her to “have the file transcript [sic] filed with the Clerk of the Court within thirty (30) days of that date or show good cause why the time for filing the transcript should be extended.” Thus, Chernowski requested an additional 30 days in which to file the transcript after learning that the court reporter could not complete it in the time required by the court. The trial court granted Chernowski's motion on August 23, 2013, and the trial transcript bears a stamp showing that it was filed in the trial-court clerk's office on September 23, 2013.⁸ Nevertheless, the appeal was not forwarded for docketing in this Court until July 2014.

Based on the foregoing, Chernowski contends that her due-process rights were violated by the trial-court clerk's office when it delayed in transmitting the “reconstructed” appellate record, and she correctly notes that this record does not contain (1) her motion to suppress, (2) the trial court's order denying her motion to suppress, or (3) a transcript of the motion-to-suppress hearing.⁹ And as the Supreme Court of Georgia has explained, although there is no Sixth Amendment right to a speedy appeal, “due process concepts necessarily become implicated when substantial delays are experienced during the criminal appellate process.”¹⁰ Accordingly, the analytical framework created by the four speedy-trial factors in Barker v. Wingo¹¹ provides “a familiar, thorough and practical means of assessing the fairness and prejudice issues that arise in cases involving the delayed resolution of direct appeals from judgments entered on criminal convictions in which the death penalty was not imposed.”¹²

The four Barker factors—the length of the delay, the reason for the delay, the defendant's assertion of the right, and the prejudice to the defendant—are evaluated by trial courts in “a difficult and sensitive balancing process.”¹³ And we review a trial court's conclusion after assessing these factors for an abuse of discretion.¹⁴ But here, we are precluded from considering this enumeration of error because, as demonstrated by the record that is before this Court, Chernowski failed to raise this issue below and may not raise it for the first time on appeal.¹⁵

Chernowski's failure to raise this issue below not only precludes her from raising this issue on appeal, it has also (negatively) contributed to the already confusing state of the record before us, given her failure to attempt any clarification or completion of the record via the remedies afforded to her by law. Indeed, OCGA § 5–6–41 provides that when

any party contends that the transcript or record does not truly or fully disclose what transpired in the trial court and the parties are unable to agree thereon, the trial court shall set the matter down for a hearing with notice to both parties and resolve the difference so as to make the record conform to the truth. If anything material to either party is omitted from the record on appeal or is misstated therein, the parties by stipulation, or the trial court, either before or after the record is transmitted to the appellate court, on a proper suggestion or of its own initiative, may direct that the omission or misstatement shall be corrected and, if necessary,

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