State v. Berryman

• Decision Date: 27 January 2006
• Docket Number: No. 302A05.,302A05.
• Citation: 624 S.E.2d 350
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Steve Lawrence BERRYMAN.

624 S.E.2d 350

STATE of North Carolina v. Steve Lawrence BERRYMAN.

No. 302A05.

Supreme Court of North Carolina.

January 27, 2006.

COPYRIGHT MATERIAL OMITTED

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 170 N.C.App. 336, 612 S.E.2d 672 (2005), finding no error in the judgment entered 19 February 1998 by Judge Henry V. Barnette, Jr. in Superior Court, Wake County. Heard in the Supreme Court 17 October 2005.

Roy Cooper, Attorney General, by Thomas J. Ziko and William P. Hart, Special Deputy Attorneys General, for the State.

George E. Kelly, III, Raleigh, for defendant-appellant.

LAKE, Chief Justice.

The issue presented for review in this case is whether a six-year delay in the preparation of a trial transcript for appellate review violates a criminal defendant's constitutional or statutory right to an appeal.

Steve Lawrence Berryman ("defendant") was indicted on 18 November 1997 for: (1) robbery with a dangerous weapon in violation of N.C.G.S. § 14-87; (2) possession of crack cocaine in violation of N.C.G.S. § 90-95(a)(3); and (3) being an habitual felon under N.C.G.S. § 14-7.1. The underlying facts of these charges are described in the Court of Appeals' opinion below, State v. Berryman, 170 N.C.App. 336, ___, 612 S.E.2d 672, 674-75 (2005), and are not a basis for this review.

Defendant was tried by a jury on 18 February 1998. Following presentation of evidence by the State and the defense, the jury found defendant guilty of: (1) common law robbery; (2) possession of cocaine; and (3) being an habitual felon. After determining defendant's prior record level was IV, the trial court entered judgment and sentenced defendant to a prison term of 133 months to 169 months. Defendant gave notice of appeal in open court. Defendant was designated indigent, and his trial counsel was appointed as appellate counsel in the Appellate Entries signed by the trial judge.

On 20 February 1998, the clerk's transcript order, certificate, and the Appellate Entries were personally delivered by a deputy clerk of Wake County Superior Court to Johnie L. King, III ("King"), the court reporter. The order instructed King to "[p]repare and deliver to the parties a transcript of all portions of the proceedings in the above-captioned case." The order did not specify anything to be excluded. King completed the prepared transcript on 30 January 2004 and mailed it to the trial court on 2 February 2004, almost six years after defendant's conviction. The transcript was filed with the North Carolina Court of Appeals on 23 April 2004.

Defendant argued in his appeal to the Court of Appeals: "'The State's failure to provide a transcript of the proceedings in a timely fashion has deprived [him] of his constitutional and statutory rights to meaningful and effective appellate review.'" Berryman, 170 N.C.App. at ___, 612 S.E.2d at 676. The record includes copies of a letter, a written request, and a signed affidavit drafted by defense counsel regarding the status of defendant's trial transcript. The letter, dated 3 April 2000, and the written request, dated 31 May 2000, are both addressed to King. Defense counsel's affidavit details fifteen separate inquiries concerning defendant's trial transcript:

a. 1/13/99 — Phone msg. to J. King re: transcript — completed?

b. 5-17-99 — Confer w/ct. reporter; phone msg. to ct. reporter.

c. 9-30-99 — Phone call to court reporter d. 10-7-99 — Confer w/court reporter re: transcript.

e. 1-14-00 — Confer w/court reporter re: transcript.

f. 4-10-00 — Draft letter to court reporter.

g. 4-18-00 — Hand-delivered letter to court reporter; confer w/ct. reporter.

h. 5-31-00 — Court Reporter Request.

i. 6-1-00 — Deliver Court Reporter Request.

j. 12-18-00 — Review dates/check status of transcript.

k. 11-18-03 — Obtained telephone number for J. King from courthouse personnel; telephone msg. to J. King.

l. 11-19-03 — Telephone call w/J. King re: transcript.

m. 11-21-03 — Telephone call from J. King; mailed him copy of appeal entry.

n. 1-22-04 — Telephone call to J. King re: transcript.

o. 2-10-04 — Received transcript.

There is no indication in the record and defendant does not assert that the State either purposefully delayed production of the transcript or assisted with its procurement beyond the clerk's 20 February 1998 transcript order. In addition, defense counsel's inquiries concerning defendant's trial transcript as described above were all directed to King, not to the State, the trial court, the clerk of superior court, or the clerk of the Court of Appeals. There is no explanation in the record for the delay.

After reviewing defendant's arguments, the Court of Appeals' majority opinion held the nearly six-year delay did not deprive defendant of his due process rights. Berryman, 170 N.C.App. at ___, 612 S.E.2d at 678. Judge Timmons-Goodson dissented, concluding "the length of the delay and the disregard of defendant's assertions of his right to a speedy appeal produced a due process violation in the instant case." Id. at ___, 612 S.E.2d at 678. Defendant appealed to this Court as of statutory right based on the dissenting opinion. See N.C.G.S. § 7A-30(2) (2005). After careful review and for the reasons set forth below, we hold the approximate six-year delay did not violate defendant's constitutional rights or any statutory right and affirm the decision of the Court of Appeals.

We note at the outset defendant asserts violations of both his federal and state constitutional rights. This Court has recognized:

State courts are no less obligated to protect and no less capable of protecting a defendant's federal constitutional rights than are federal courts. In performing this obligation a state court should exercise and apply its own independent judgment, treating, of course, decisions of the United States Supreme Court as binding and according to decisions of lower federal courts such persuasiveness as these decisions might reasonably command.

State v. McDowell, 310 N.C. 61, 74, 310 S.E.2d 301, 310 (1984), cert. denied, 476 U.S. 1164, 106 S.Ct. 2292, 90 L.Ed.2d 732 (1986), habeas proceeding at McDowell v. Dixon, 858 F.2d 945 (4th Cir.1988). Thus, we shall consider defendant's contentions in both the federal and state context.

At common law, criminal defendants were not afforded appellate review of final judgments entered based upon convictions. McKane v. Durston, 153 U.S. 684, 687, 14 S.Ct. 913, 38 L.Ed. 867, 868 (1894); State v. Bailey, 65 N.C. 426, 427 (1871) ("At common law, there was no appeal from the decision of any of the Courts, high or low. . . ."). The United States Constitution does not require either the federal government or the states to provide a right to an appeal from criminal convictions. Halbert v. Michigan, ___ U.S. ___, ___, 125 S.Ct. 2582, 162 L.Ed.2d 552, 559-60 (2005) (citing McKane, 153 U.S. at 687, 14 S.Ct. at 915, 38 L.Ed. at 868); Evitts v. Lucey, 469 U.S. 387, 393, 105 S.Ct. 830, 83 L.Ed.2d 821, 827 (1985) (citing McKane, 153 U.S. at 687, 14 S.Ct. at 915, 38 L.Ed. at 868); Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987, 993 (1983); Ross v. Moffitt, 417 U.S. 600, 611, 94 S.Ct. 2437, 41 L.Ed.2d 341, 351 (1974) (citing McKane, 153 U.S. at 687, 14 S.Ct. at 915, 38 L.Ed. at 868); Ortwein v. Schwab, 410 U.S. 656, 660, 93 S.Ct. 1172, 35 L.Ed.2d 572, 576 (1973) (citations omitted); Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891, 898 (1956) (citing McKane, 153 U.S. at 687, 14 S.Ct. at 915, 38 L.Ed. at 868); McKane, 153 U.S. at 687-88, 38 L.Ed. at 868. Rather, "[i]t is wholly within the discretion of the State to allow or not to allow such a review." McKane, 153 U.S. at 687, 14 S.Ct. at 915, 38 L.Ed. at 868; see also Kohl v. Lehlback, 160 U.S. 293, 299, 16 S.Ct. 304, 40 L.Ed. 432, 434 (1895) ("[T]he right of review in an appellate court is purely a matter of state concern. . . .").

Should a state provide an appeal of right, "the procedures used in deciding appeals must comport with the demands of the Due Process and Equal Protection Clauses of the Constitution." Evitts, 469 U.S. at 393, 105 S.Ct. at 834, 83 L.Ed.2d at 827-28; Ross, 417 U.S. at 609, 94 S.Ct. at 2443, 41 L.Ed.2d at 350 ("`Due Process' emphasizes fairness between the State and the individual dealing with the State. . . ."); North Carolina v. Pearce, 395 U.S. 711, 724-25, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656, 669 (1969) (While no per se constitutional right to appeal exists, once a state establishes an appellate forum it must assure access to it upon terms and conditions equally applicable and available to all.) (citations omitted); Rinaldi v. Yeager, 384 U.S. 305, 310-11, 86 S.Ct. 1497, 16 L.Ed.2d 577, 581 (1966) ("This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts.") (citations omitted); Douglas v. California, 372 U.S. 353, 355, 83 S.Ct. 814, 9 L.Ed.2d 811, 813-14 (1963) (citing Griffin, 351 U.S. at 19, 76 S.Ct. at 591, 100 L.Ed. at 899); Griffin, 351 U.S. at 17, 76 S.Ct. at 590, 100 L.Ed. at 898 ("Both equal protection and due process emphasize the central aim of our entire judicial system — all people charged with crime must, so far as the law is concerned, `stand on an equality before the bar of justice in every American court.'" (quoting Chambers v. Florida, 309 U.S. 227, 241, 60 S.Ct. 472, 84 L.Ed. 716, 724 (1940))).

The North Carolina Constitution does not mandate that this state provide appellate review of criminal convictions. See N.C. Const. arts. I & IV; see also Gunter v. Town of Sanford, 186 N.C. 452, 457-58, 120 S.E. 41, 44 (1923) ("[P]laintiffs present the question whether the right of appeal is essential to due process of law. The question has frequently been considered by the courts and answered...