446 P.3d 153
Utah Ct. App.2019Background
- In 2013 Bunker pleaded guilty to assault by a prisoner; the district court suspended a prison term and placed him on probation (consecutive to sentences in a separate case where three zero-to-five-year terms had been suspended).
- After alleged probation violations in 2015 and 2016, Bunker admitted violations; the court revoked and then reinstated probation in 2015, and in May 2016 terminated probation as unsuccessful and reinstated the suspended concurrent sentences from the other case.
- Bunker filed a timely pro se notice of appeal on May 12, 2016; Trial Counsel moved to withdraw, asserting his contract obligation ended with filing of the notice, and this court granted withdrawal and remanded for determination of indigency and appointment of appellate counsel, staying the appeal.
- The district court did not appoint appellate counsel until roughly 19 months later (mid-2018); once appointed, briefing and argument proceeded and the appeal reached the Court of Appeals.
- On appeal Bunker did not challenge the merits of the probation revocation; he argued the lengthy delay and lack of appointed appellate counsel during the waiting period violated his constitutional rights and constituted structural error, for which prejudice should be presumed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prolonged lack of appointed appellate counsel during the stayed remand was a denial of counsel at a critical stage | Bunker: absence of counsel for ~19 months deprived him during a critical stage and thus is structural error needing no prejudice showing | State: when appellate court stayed proceedings and only administrative steps occurred, no critical-stage deprivation happened | Court: Not a critical stage—no merits decisions occurred during the stay; counsel was present for briefing/argument, so no structural error from denial of counsel |
| Whether delay in appellate process establishes a right to a speedy appeal or warrants presumed prejudice | Bunker: 20+ month delay violated due process; delay alone should presume prejudice | State: Utah law does not recognize a right to a speedy appeal; delay alone does not establish constitutional violation | Court: Utah precedent precludes a recognized right to a speedy appeal; delay alone does not warrant presumed prejudice; appellant must show prejudice |
| Whether long delay here parallels McClellan such that records lost justify presuming prejudice | Bunker: McClellan supports presumption of prejudice after severe delay | State: McClellan’s presumption rested on loss of records preventing proof of prejudice—distinguishable | Court: Distinguishable—no claim that records were lost or inability to show prejudice; McClellan does not compel presumption here |
| Whether Tenth Circuit’s Harris decision requires presuming prejudice after two-year appellate delay | Bunker: Harris suggests two-year delay gives rise to presumption of ineffective appellate process | State: Harris recognizes a speedy-appeal right not adopted by Utah; Harris still requires balancing factors and prejudice showing | Court: Harris is inapposite; it recognizes speedy-appeal rights and uses a Barker-style test—Utah courts declined to adopt such a right; Harris does not relieve Bunker of showing prejudice |
Key Cases Cited
- State v. Cruz, 122 P.3d 543 (Utah 2005) (structural errors are flaws in the framework of the trial that may warrant presumed prejudice)
- State v. Maestas, 299 P.3d 892 (Utah 2012) (denial of counsel is structural error only when counsel is denied entirely or during a critical stage)
- State v. Arguelles, 63 P.3d 731 (Utah 2003) (declining to recognize a constitutional right to a speedy appeal)
- State v. McClellan, 216 P.3d 956 (Utah 2009) (presumed prejudice where extreme appellate delay resulted in loss/destruction of records impeding proof of prejudice)
- Harris v. Champion, 15 F.3d 1538 (10th Cir. 1994) (two-year appellate delay may presume inordinate delay and applies a Barker-style four-factor balancing test)
- Penson v. Ohio, 488 U.S. 75 (U.S. 1988) (denial of appellate counsel may leave a defendant without representation during the appellate decisional process)
- Barker v. Wingo, 407 U.S. 514 (U.S. 1972) (four-factor test for speedy-trial claims)