State v. Berryman

TIMMONS-GOODSON, Judge,

dissenting.

Although I believe that the majority applies the correct caselaw to the facts of the instant case, because I reach a different conclusion, I dissent.

As the majority correctly notes, none of the factors identified by our courts is dispositive of the issue of whether the delay in processing a defendant’s appeal rises to a due process violation. State v. Hammonds, 141 N.C. App. 152, 158, 541 S.E.2d 166, 172 (2000), aff’d per curiam, 354 N.C. 353, 554 S.E.2d 645 (2001), cert. denied, 536 U.S. 907, 153 L. Ed. 2d 184 (2002). Instead, the factors should be considered together, along with “ ‘such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.’ ” Id. (quoting Barker v. Wingo, 407 U.S. 514, 533, 33 L. Ed. 2d 101, 118 (1972)).

In the instant case, the majority opinion describes the delay of defendant’s appeal as “inexcusable,” a description I find fitting considering the circumstances of the case. As detailed by the majority, due to the court reporter’s inability to deliver a proper transcript to him, defendant was unable to properly appeal his conviction until six years after judgment was entered. In fact, at the time defendant eventually received the transcript, he had been imprisoned for six years — more than half the minimum amount of his sentence. During the delay, defendant’s appellate counsel made approximately ten inquiries regarding the status of the trial transcript, at one point even hand-delivering a request to the court reporter’s mailbox. I question whether an imprisoned defendant could or should be required to do more.

I note that where a pre-trial delay is challenged on appeal, a showing of a “particularly lengthy delay” establishes a prima facie case that the delay was caused by the neglect or willfulness of the prosecution. State v. Chaplin, 122 N.C. App. 659, 663, 471 S.E.2d 653, 655 (1996). In the instant case, I recognize that the delay was not due to the fault of the prosecutor. Nevertheless, I believe that where a six-year delay is accompanied by approximately ten status-requests by the appellant, at the very least the inability of the court reporter to comply with those requests should be characterized as neglectful. Therefore, I conclude that 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. Accordingly, I dissent.