State v. Fischer, 20060153.

• Decision Date: 28 February 2007
• Docket Number: No. 20060153.,20060153.
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Paul A. FISCHER, Defendant and Appellant.
• Court: North Dakota Supreme Court

727 N.W.2d 750

2007 ND 22

STATE of North Dakota, Plaintiff and Appellee, v. Paul A. FISCHER, Defendant and Appellant.

No. 20060153.

Supreme Court of North Dakota.

February 28, 2007.

Brian D. Grosinger, Assistant State's Attorney, Mandan, ND, for plaintiff and appellee.

Paul A. Fischer, James River Correctional Center, Jamestown, ND, Pro se.

VANDE WALLE, Chief Justice.

[¶ 1] Paul A. Fischer appealed from a district court order denying his motion for an extension of time to file the notice of appeal and quashing his notice of appeal filed on May 2, 2006. We conclude the district court abused its discretion when it denied Fischer's motion for an extension of time, and we reverse.

I

[¶ 2] On November 30, 2004, the State charged Fischer with three drug-related felonies and criminal trespassing. After his arrest on these charges, Fischer applied for and received a court-appointed attorney. Several days later, Fischer requested the withdrawal of his court-appointed attorney and sought to represent himself. The district court denied this request and required Fischer to be represented by counsel. Over the course of the next nine months, Fischer discharged three court-appointed attorneys, claiming that they were ineffective and failed to communicate with him. At this point, the district court permitted Fischer to proceed without counsel, but it required him to retain a court-appointed attorney in an advisory capacity.

[¶ 3] On February 23, 2006, Fischer was tried before a jury and convicted of manufacture of a controlled substance, possession of a controlled substance with intent to deliver, and possession of methamphetamine-related drug paraphernalia. On March 3, 2006, the district court sentenced Fischer to lengthy prison terms on each of the three counts. Fischer was sentenced to twenty years in prison, with eleven years suspended for a period of five years, on the manufacturing count. He was sentenced concurrently to twenty years in prison, with eleven years suspended for a period of five years, for possession with intent to deliver. Finally, he was sentenced concurrently to five years in prison for possession of drug paraphernalia. After the criminal judgment was entered, Fischer was transferred to the North Dakota State Penitentiary in Bismarck.

[¶ 4] After his transfer to the State Penitentiary, Fischer continued to represent himself with the apparent intention of appealing his conviction. On April 19, 2006, the clerk of district court filed Fischer's amended order for transcripts. The State moved to quash the amended order for transcripts, arguing that Fischer never filed a notice of appeal with the clerk of district court as required to initiate the appeal process. In its motion to quash, the State acknowledged it had received a notice of appeal from Fischer dated March 28, 2006. On April 24, 2006, the district court denied Fischer's request for transcripts because no notice of appeal had been filed with the clerk before the time for appeal expired.

[¶ 5] On April 28, 2006, Fischer mailed a motion to the district court requesting an extension of time to file the notice of appeal under N.D.R.App.P. 4(b)(4). In his motion requesting an extension, Fischer claimed that, if given additional time, he could prove that he had mailed the notice of appeal to the clerk of district court from the State Penitentiary on March 28, 2006. Specifically, Fischer claimed that an employee at the State Penitentiary had notarized his documents and could verify that a copy of the notice of appeal had been made for the clerk. However, because he had recently been moved to another correctional center in Jamestown, Fischer did not have immediate access to the State Penitentiary employees who had helped him. Fischer also served a new notice of appeal with the motion requesting an extension. On May 2, 2006, the clerk of district court filed the motion requesting an extension and the new notice of appeal. On May 5, 2006, the district court issued an order denying Fischer's motion for an extension of time to file the notice of appeal and quashing the notice of appeal that was filed on May 2. The district court did not provide any explanation for its denial of Fischer's motion.

II

[¶ 6] We review a district court's decision on a motion to extend the time to file an appeal for an abuse of discretion. State v. Jones, 2002 ND 163, ¶ 5, 652 N.W.2d 369. A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Redfield v. Bitterman, 2000 ND 217, ¶ 7, 620 N.W.2d 570. Appellate courts often give more leeway to a district court's decision to grant an extension of time than they give to a district court's refusal to do so. Midwest Employers Cas. Co. v. Williams, 161 F.3d 877, 879 (5th Cir.1998) (citing 16A Charles Alan Wright et al., Federal Practice and Procedure § 3950.3 (2d ed.1996)); cf. Ceartin v. Ochs, 479 N.W.2d 863, 865 (N.D.1992) (stating that an order granting a new trial is subject to more limited appellate review than an order denying a new trial). An order granting an extension is entitled to more deference because it does not terminate the proceeding. Cf. Ceartin, at 865.

[¶ 7] "In a criminal case, a defendant's notice of appeal must be filed with the clerk of district court within 30 days after the entry of the judgment or order being appealed." N.D.R.App.P. 4(b)(1)(A). However, the district court may extend the time to file the notice of appeal in a criminal case under N.D.R.App.P. 4(b)(4). Rule 4(b)(4) provides:

Upon a finding of excusable neglect or good cause, the district court may — before or after the time has expired, with or without motion and notice — extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.

Therefore, the district court must find that either excusable neglect or good cause exists before granting an extension of the time for appeal. See Jones, 2002 ND 163, ¶ 7, 652 N.W.2d 369.

[¶ 8] Under this Court's precedent, the "excusable neglect" standard is well established. See, e.g., Redfield, 2000 ND 217, ¶ 7, 620 N.W.2d 570; State v. DuPaul, 527 N.W.2d 238, 243 (N.D.1995). In order to establish excusable neglect, a party must show that unique or extraordinary circumstances caused the delay in filing the notice of appeal. Redfield, at ¶ 7, 620 N.W.2d 570; see also Leftbear v. State, 2007 ND 14, ¶ 9, 727 N.W.2d 252 (explaining the excusable neglect standard).

[¶ 9] However, we have never addressed the "good cause" standard, which is an alternate basis for granting an extension of time under the plain language of the rule. See N.D.R.App.P. 4(b)(4). Because N.D.R.App.P. 4 is derived from Rule 4 of the Federal Rules of Appellate Procedure, we may look to the interpretation of "good cause" under the federal rule as a guide. See Hagert v. Hatton Commodities, 421 N.W.2d 473, 475 (N.D.1988). Although no federal court has explicitly defined the meaning of good cause under Rule 4, the good cause standard is generally seen as more lenient than the excusable neglect standard. See 20 James Wm. Moore et al., Moore's Federal Practice ¶ 304.14[2][b] (3d ed.2006); 16A Charles Alan Wright et al., Federal Practice and Procedure § 3950.3 (3d ed.1999). The most helpful discussion of the good cause standard is found in the Advisory Committee Notes to Rule 4, F.R.App.P. The Advisory Committee states:

The good cause and excusable neglect standards have "different domains." Lorenzen v. Employees Retirement Plan, 896 F.2d 228, 232 (7th Cir.1990). They are not interchangeable, and one is not inclusive of the other. The excusable neglect standard applies in situations in which there is fault; in such situations, the need for an extension is usually occasioned by something within the control of the movant. The good cause standard applies in situations in which there is no fault — excusable or otherwise. In such situations, the need for an extension is usually occasioned by something that is not within the control of the movant.

Thus, the good cause standard can apply to motions brought during the 30 days following the expiration of the original deadline. If, for example, the Postal Service fails to deliver a notice of appeal, a movant might have good cause to seek a post-expiration extension. It may be unfair to make such a movant prove that its "neglect" was excusable, given that the movant may not have been neglectful at all. Similarly, the excusable neglect standard can apply to motions brought prior to the expiration of the original deadline. For example, a movant may bring a pre-expiration motion for an extension of time when an error committed by the movant makes it unlikely that the movant will be able to meet the original deadline.

Advisory Committee Notes, 2002 Amendments, F.R.App.P. 4.

[¶ 10] Whether the movant seeks an extension for excusable neglect or good cause, we have generally held that the movant must support the request for an extension with affidavits or other evidence. See State v. Jones, 2002 ND 163, ¶ 7, 652 N.W.2d 369 (holding that the district court did not abuse its discretion in denying Jones's motion for an extension because of his complete failure to make any showing of excusable neglect); Nastrom v. Nastrom, 1998 ND 75, ¶ 8, 576 N.W.2d 215 (holding that the district court did not abuse its discretion in denying the movant's request for an extension because her claim of excusable neglect was not reasonably supported by the evidence). However, in Jones and Nastrom, the movants were not self-represented prisoners. See Jones, at ¶ 7, 652 N.W.2d 369 (involving a criminal defendant represented by counsel); Nastrom, at ¶ 7, 576 N.W.2d 215 (involving a party in a civil case who was represented by counsel).

[¶ 11] Although Fischer proceeded without counsel by choice, a right granted by the United States Constitution, see, e.g., State v. Ochoa, 2004 ND 43,...