State v. Bunker
| Decision Date | 11 July 2019 |
| Docket Number | No. 20160440-CA,20160440-CA |
| Citation | 446 P.3d 153 |
| Parties | STATE of Utah, Appellee, v. Peter James BUNKER, Appellant. |
| Court | Utah Court of Appeals |
Ann M. Taliaferro, Salt Lake City, Attorney for Appellant
Sean D. Reyes and Christopher D. Ballard, Salt Lake City, Attorneys for Appellee
Opinion
¶1 It is an old legal maxim that there is no right without a remedy. Peter James Bunker seeks in this appeal a remedy for delays in his appeals process without first establishing the infringement of any underlying rights. We accordingly affirm the district court's order terminating his probation as unsuccessful and reinstating his sentence.
¶2 In 2013, Bunker was charged with assault by a prisoner. After finding Bunker indigent, the district court appointed counsel to represent him (Trial Counsel). Bunker pleaded guilty to the charge.
¶3 In June 2014, the district court sentenced Bunker to a prison term not to exceed five years. The court ordered this prison term to run consecutively to Bunker's prison sentences in a separate case in which he pleaded guilty to three first-degree felonies and was sentenced to three concurrent zero-to-five-year prison terms, which the court had suspended in favor of probation. The court also ordered him to spend 320 days in jail with a credit of 247 days for time served. The court then suspended the prison term and placed Bunker on probation.1
¶4 In May 2015, Adult Probation and Parole (AP&P) alleged that Bunker had committed several probation violations. At a subsequent hearing before the district court that was handling both of Bunker's cases, Bunker admitted to two probation violations. The court revoked his probation, ordered him to serve 120 days in jail with credit for 55 days already served, and then reinstated his probation.
¶5 The next year, AP&P again alleged that Bunker had violated the conditions of his probation. At a hearing, Bunker admitted to two probation violations, and the district court accordingly found that he had violated probation. On May 9, 2016, the court terminated Bunker's probation as unsuccessful and reinstated the three concurrent zero-to-five-year prison terms from the other case. Bunker filed a timely pro se notice of appeal on May 12, 2016, and this appeal was docketed.
¶6 Shortly after receiving the notice of appeal, this court informed Trial Counsel that this appeal had been filed. And in mid-July 2016, this court ordered Trial Counsel to file Bunker's docketing statement or other proper motion. One week later, Trial Counsel moved to withdraw as counsel for Bunker, explaining that, pursuant to his contract with the county, his obligation to represent Bunker "terminates with the filing of a Notice of Appeal." On August 2, 2016, this court granted the unopposed motion to withdraw and temporarily remanded the case to the district court for the determination of Bunker's indigence and, "if indigency [was] found, for appointment of counsel." This court stayed the appeal pending disposition in the district court.
¶7 For reasons that are not apparent on the record, it took another nineteen months for the district court to appoint counsel (Appellate Attorney) to represent Bunker on appeal. Once Appellate Attorney was appointed, the appeal proceeded through the routine process of briefing and argument.
¶8 On appeal, Bunker does not claim error in the district court's decision to revoke his probation. He instead claims that the length of the appellate process violated his constitutional rights and resulted in structural error for which this court should presume prejudice. Because Bunker's claim is necessarily brought for the first time on appeal, no standard of review applies, and we decide the issue as a matter of law.
¶9 Bunker contends that he was denied due process because his rights to the assistance of appellate counsel and to a timely direct appeal have been violated.2 Pointing to the time after his appeal was docketed but during which he remained without appointed appellate counsel, he asserts that he "has been prevented from proceeding with his appeal" given that "it took the court system over 20 months to appoint [him] an appellate attorney." According to Bunker, under the facts of his case, "the clear denial of fundamental constitutional rights is itself the harm," and this court therefore should not require him "to demonstrate prejudice in showing the likelihood of a more favorable outcome in his sentence." In other words, he asserts that this court should conclude that the delay in the processing of his appeal constitutes structural error.
¶10 Generally, "structural errors are flaws in the framework within which the trial proceeds, rather than simply an error in the trial process itself." State v. Cruz , 2005 UT 45, ¶ 17, 122 P.3d 543 (cleaned up). Because structural errors "affect the very framework of the trial," "a structural error analysis presumes prejudice." Id. The United States Supreme Court has "found structural errors only in a very limited class of cases." Johnson v. United States , 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).
¶11 Bunker's argument, in essence, has two components: (1) he faced the "denial of appellate counsel" "at a critical stage in [the] proceedings" and (2) the delay in the appellate process is "a critical problem" that prevented him from proceeding with his appeal through no fault of his own. Bunker argues that these components, together, "constitute[ ] structural error that does not require a showing of harm." We discuss each component in turn, and while we do not condone the regrettable delay in this appeal, we ultimately conclude that Bunker's rights were not violated and that these circumstances do not amount to structural error.3
¶12 First, Bunker complains that he was deprived of his right to appellate counsel during critical stages of the proceedings. The Utah Supreme Court has recognized that "the denial of counsel is a structural error that does not require a showing of harm where assistance of counsel has been denied entirely or during a critical stage of the proceeding." State v. Maestas , 2012 UT 46, ¶ 57, 299 P.3d 892 (emphasis in original) (cleaned up). In other words, State v. Montes , 2019 UT App 74, ¶ 36, 442 P.3d 1247.
¶13 "A critical stage is a step of a criminal proceeding that holds significant consequences for the accused." Maestas , 2012 UT 46, ¶ 57, 299 P.3d 892 (cleaned up). "Determining whether a given stage of a proceeding is critical involves considering whether the presence of counsel is necessary to preserve the defendant's basic right to a fair trial, whether potential substantial prejudice to the defendant's rights inheres in the particular confrontation, and the ability of counsel to help avoid that prejudice." Id. (cleaned up).
¶14 Bunker suggests that the time period between the granting of Trial Counsel's motion to withdraw in August 2016 and the appointment of Appellate Attorney in March 2018 was a critical stage of the appeal during which he was deprived of appellate counsel. Although the time period during which Bunker awaited the appointment of appellate counsel was unusually prolonged, we conclude this time period was not a critical stage of the proceeding. The only acts taken by this court and the district court while Bunker awaited the appointment of counsel involved verifying his indigency status and identifying who would serve as his appellate counsel. Supra ¶¶ 6–7. And when this court remanded to the district court for the appointment of counsel, it also expressly ordered that Bunker's appeal was stayed pending the district court's disposition. Supra ¶ 6. Thus, no decisions or events bearing on the merits of Bunker's case occurred while he was unrepresented by appellate counsel. Cf. Penson v. Ohio , 488 U.S. 75, 88, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) (). And because of the stay, nothing happened in the court proceedings that would have required the presence of appellate counsel to preserve Bunker's right to a fair resolution of his appeal on the merits. Once his appeal progressed to the stages that held "significant consequences" for him, i.e., briefing and argument, see Maestas , 2012 UT 46, ¶ 57, 299 P.3d 892 (cleaned up), Bunker was represented. As a result, he was not denied his right to counsel during a critical stage of the proceeding, and the first component of Bunker's argument does not support structural error here.
¶15 The second component of Bunker's argument, involving his complaints regarding the delay in the appellate process, implicate whether he has the right to a speedy appeal. A criminal defendant has the constitutional right to a speedy trial. State v. Rohwedder , 2018 UT App 182, ¶ 6, 436 P.3d 324 ). But as Bunker acknowledges, Utah courts have not recognized a right to a speedy appeal. In fact, the Utah Supreme Court has expressly "decline[d] to recognize a right to a speedy appeal." State v. Arguelles , 2003 UT 1, ¶ 125, 63 P.3d 731. The court also has noted that "[t]here is no controlling federal precedent that recognizes such a right" and has declined to consider whether the Utah Constitution includes this right. Id.
¶16 Arguelles is dispositive. Because this binding authority does not recognize a right to a speedy appeal, Bunker cannot show that the delay in his appeal violated this nonexistent right. See id.
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