State v. Packineau, 656

• Decision Date: 15 September 1978
• Docket Number: No. 656,656
• Citation: 270 N.W.2d 336
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Phyllis PACKINEAU, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 336

270 N.W.2d 336

STATE of North Dakota, Plaintiff and Appellee, v. Phyllis PACKINEAU, Defendant and Appellant.

Crim. No. 656.

Supreme Court of North Dakota.

Sept. 15, 1978.

John M. Olson, State's Atty. and Robert P. Bennett, Asst. State's Atty., Bismarck, for plaintiff and appellee State of North Dakota; argued by Mr. Bennett.

Richard B. Baer, of Baer, Asbridge & Robb, Bismarck, for defendant and appellant.

VANDEWALLE, Justice.

The State asks that we dismiss the defendant's appeal of her manslaughter conviction because she has failed to file her brief within the time period established by Rule 31(c) of the North Dakota Rules of Appellate Procedure. In response to the State's request, the defendant asks that we deny the motion to dismiss, and, pursuant to Rule 26(b), N.D.R.App.P., that we enlarge the time in which she may file her brief. We will grant the motion to dismiss if the defendant fails to file her brief within fifteen days of the date of this opinion.

The defendant Packineau filed, on May 15, 1978, within the time specified by Rule 4(b), N.D.R.App.P., an appeal from the judgment of conviction of the crime of manslaughter entered by the Burleigh County District Court following a jury trial. The record on appeal was certified to this court on June 22, 1978, within the time prescribed by Rule 12, N.D.R.App.P. The judgment and sentence of the court entered on May 15, 1978, provided that the execution of sentence would be stayed pending disposition of the defendant's appeal of the judgment of conviction. The attorney for the defendant was notified on June 23, 1978, by the clerk of the Supreme Court that the appellant's brief would be due on August 1, 1978, pursuant to Rule 31, N.D.R.App.P. The brief was not filed by that date, and on August 14, 1978, the State of North Dakota filed a motion to dismiss the appeal for two reasons: (1) that the appeal is frivolous in that there are no questions of fact or law which necessitate an appeal to this court; and (2) that the appellant has failed to file her brief within the time limits established by this court pursuant to Rule 31(c), N.D.R.App.P. The defendant, on August 25, 1978, filed a return to the State's motion to dismiss wherein she resisted the motion and moved, pursuant to Rule 26(b), N.D.R.App.P., that this court enlarge the time in which briefs may be filed.

Under Rule 26(b), N.D.R.App.P., the court, for good cause shown, may upon motion enlarge the time prescribed by the rules or its order for doing any act or may permit an act to be done after the expiration of such time, but the court may not enlarge the time for filing a notice of appeal. Failure to file the appellant's brief within the time specified in Rule 31(c), N.D.R.App.P., does not require that the appeal be dismissed. Rather, the rule provides that if the appellant fails to file his brief within the time specified the appellee may move for dismissal. The determination whether to dismiss the appeal for failure to file the brief rests within the discretion of this court. See, e. g., Nodak Mutual Ins. Co. v. Loeffler, 225 N.W.2d 286 (N.D.1974).

Despite repeated warnings by this court that delays in transmitting the record or filing briefs would very likely result in dismissals (see, e. g., Johanson v. Nash Finch Co., 212 N.W.2d 372 (N.D.1973)), there continues to be an inordinate number of proceedings before this court requesting the dismissal of appeals for these reasons. A summary of decisions of this court on these matters as of March, 1977, may be found in Gerhardt v. Fleck, 251 N.W.2d 764 (N.D.1977). Since that time, more of these decisions have been issued. See, e. g., Halverson v. Pet, Inc., 260 N.W.2d 11 (N.D.1977); State v. Thompson, 256 N.W.2d 706 (N.D.1977); State v. Paulson, 256 N.W.2d 556 (N.D.1977). There can be no doubt that the court favors a decision of an appeal on its merits (LeFevre Sales, Inc. v. Bill Rippley Construction, Inc.,238 N.W.2d 673 (N.D.1976)), but this will not always be an overriding factor. In the past, the court has sometimes granted a motion for dismissal based upon delay, and has sometimes denied it. See the summary of decisions in Gerhardt v. Fleck, supra. Therefore, even if the delay is an attempt to gain some advantage for a client, it is a dangerous practice if undertaken without approval of the court. The temper of the court, as reflected in its recent pronouncements in these decisions, is to dismiss where no justifiable cause for the delay is shown. With this general background and admonition we will consider the specific case before us.

The State has alleged that the defendant's appeal to this court is frivolous in that there are no questions of fact or law that would necessitate an appeal. The State has submitted a copy of a letter from defendant's attorney to support this conclusion. However, the merits of the appeal are not now before us nor do we intend at this time to examine the record to determine whether there are questions of fact or law that would necessitate an appeal. We will limit our determination at this time to the second reason for the State's motion to dismiss, i. e., the failure of the defendant to file her brief within the time limits established by Rule 31(c), N.D.R.App.P.

We are informed that after trial of the matter in the district court, and approximately one week prior to sentencing, the defendant terminated the services of her attorney and secured Mr. Baer to represent her. Present counsel filed the notice of appeal the day the judgment of conviction and sentencing was entered. After he had examined the transcript and record, present counsel indicated in a letter to the defendant that he did not believe an appeal was warranted. Although the transcript was delivered to defendant's present counsel on June 14, 1978, his return to the motion to dismiss stated that he was absent from his office from May 26 to July 4, 1978. Moreover, the letter to the defendant indicating that counsel did not believe an appeal was warranted was dated June 20, 1978. Counsel said in this letter and in his return that if the defendant wished to have the opinion of another attorney the transcript would be available. Defendant apparently took no action to secure another attorney's opinion.

In his return, counsel for the defendant indicated that he is actively engaged in seeking another attorney's opinion as to the merits of an appeal in this case. Counsel could have moved this court for an extension of time to file a brief pursuant to Rule 26(b), N.D.R.App.P., prior to the time the brief was due or at least prior to the time the State moved to dismiss the appeal for failure to file a brief. Such motion was not made until after the State had filed its motion to dismiss. Although under Rule 26(b) this court has the authority to grant an extension of time after the expiration of the time in which the...