State v. Bunker

2019 UT App 118

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
PETER JAMES BUNKER,
Appellant.

Opinion
No. 20160440-CA
Filed July 11, 2019

Third District Court, Silver Summit Department
The Honorable Paige Petersen
Nos. 131500342, 131500295

Ann M. Taliaferro, Attorney for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.

POHLMAN, Judge:

¶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.

BACKGROUND

¶2 In 2013, Bunker was charged with assault by a prisoner.
After finding Bunker indigent, the district court appointed
State v. Bunker

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.

1. On July 23, 2014, the district court received a handwritten
document signed by Bunker himself. This document was titled,
“To the 3rd District Courts Notice of Appeal,” and its text asked
for “a change of heart on [his] sentencing” and “a chance for a
second opinion.” In response, the district court forwarded the
document to the prosecutor and Trial Counsel. In an attached
minute entry, the court advised counsel that it would “take no
action at this time on any matter raised in the [document]” and
invited them to file “an appropriate motion” if either one
believed further action by the court was necessary. The parties
debate whether the handwritten document constituted a notice
of appeal. But the present appeal is taken exclusively from the
district court’s May 2016 probation revocation decision. Thus,
the treatment and effect of Bunker’s July 23, 2014 handwritten
document are not questions that are properly before us.

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State v. Bunker

¶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.

ISSUE ON APPEAL

¶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

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brought for the first time on appeal, no standard of review
applies, and we decide the issue as a matter of law.

ANALYSIS

¶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

2. The State does not dispute that Bunker has the constitutional
right to a direct appeal and the constitutional right to assistance
of counsel on appeal. See Utah Const. art I, § 12 (“In criminal
prosecutions the accused shall have . . . the right to appeal in all
cases.”); Gailey v. State, 2016 UT 35, ¶ 27, 379 P.3d 1278
(explaining that under the due process clause of the Fourteenth
Amendment to the United States Constitution, defendants “have
the right to the effective assistance of counsel on direct appeal”).
For reasons discussed below, the State does not accept that
Bunker has the constitutional right to a timely appeal.

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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 (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, “the denial of the right to counsel, standing alone,
does not necessarily constitute structural error. To find structural

3. In terms of a remedy for the alleged structural error, Bunker
suggests that this court “set aside and vacate his sentence” and,
thereafter, “order the case closed.” He claims that this proposed
remedy would recognize “the harm to [him] in having already
served a majority of the sentence imposed by the unreviewed
orders” and would incentivize “future courts and others to
refrain” from delaying the process in a similar manner. Because
we conclude that there is no error, structural or otherwise,
warranting relief in this case, we need not consider the propriety
of Bunker’s requested remedy.

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error, the deprivation must occur at a critical stage of criminal
proceedings.” State v. Montes, 2019 UT App 74, ¶ 36.

¶13 “A critical stage is a step of a criminal proceeding that
holds significant consequences for the accused.” Maestas, 2012
UT 46, ¶ 57 (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 (1988) (explaining that
the denial of appellate counsel may lead to the presumption of
prejudice and emphasizing that the denial of counsel in that
particular case “left petitioner completely without representation
during the appellate court’s actual decisional process”). 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

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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 (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 (citing
U.S. Const. amend. VI). 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.

¶17 Notwithstanding the fact that he lacks the “right to
prosecute his appeal in a timely manner,” Bunker suggests that
“there comes a point where delay in the appellate process
becomes presumptively prejudicial.” In support, Bunker relies
on State v. McClellan, 2009 UT 50, 216 P.3d 956, to argue that he
should not be required to show prejudice resulting from the
delay in this appeal. In McClellan, the defendant’s appeal took
more than twenty years to reach the supreme court for several
reasons outside the defendant’s control, including a near
three-year delay in transferring his file from the trial court to the
appellate court, the dismissal of his first attempt to appeal when
his attorney failed to file a brief on his behalf, resentencing, and

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changing attorneys. Id. ¶¶ 27–28. When the supreme court
finally resolved the merits of his appeal, it concluded that the
trial court should have disqualified the county attorney’s office
from the case because the defendant’s prior defense counsel had
joined the office three days before trial and the office failed to
rebut the presumption that an impermissible conflict of interest
existed. Id. ¶¶ 25–26. Thus, the supreme court determined that
the trial court committed an error. Id. ¶ 26.

¶18 Having identified an error, the court then considered the
question of prejudice. Id. ¶ 27. It stated that to support a reversal,
appellate courts generally “require a showing of prejudice,” that
is, a showing by the defendant that absent the error “there is a
reasonable likelihood that the outcome of [the] trial would have
been more favorable.” Id. In a departure from this rule, it
decided to “presume prejudice” on the “specific facts” presented
to it. Id. The court reasoned that such a presumption was
justified by the fact that, during the twenty-year delay in hearing
the appeal, “[m]uch of the record has been lost or destroyed”
due to various “missteps outside of [the defendant’s] control.”
Id. ¶¶ 27–28. Under those circumstances, the court determined
that “it would be unjust to hold an incarcerated defendant
responsible for the loss of the court records by requiring him to
demonstrate the likelihood of a more favorable outcome.” Id.
¶ 27. The court therefore reversed and remanded for a new trial.
Id. ¶ 28.

¶19 Bunker likens his case to McClellan and asks us to
presume prejudice due to delay. But the supreme court’s
decision to presume prejudice in McClellan was grounded in the
fact that the very records that might have allowed the defendant
to show prejudice were missing or destroyed as a result of the
delay from mismanagement of his case. See id. ¶¶ 27–28, 34. In
other words, the defendant’s ability to demonstrate prejudice
was hampered by the long delay in hearing his appeal. See id.
Bunker has not claimed that he would face similar difficulty in
demonstrating prejudice under the facts of his case, and he has

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not identified any records that are now unavailable because of
the length of time that it has taken to hear his appeal of his
probation revocation. We therefore conclude that this case is
distinguishable from McClellan, and we rely on McClellan’s
general direction that for an error to warrant reversal, the
appellant must show prejudice. See id. ¶ 27.

¶20 Bunker next relies on Harris v. Champion, 15 F.3d 1538
(10th Cir. 1994), in which the United States Court of Appeals for
the Tenth Circuit concluded that “delay in adjudicating a direct
criminal appeal beyond two years from the filing of the notice of
appeal gives rise to a presumption that the state appellate
process is ineffective.” Id. at 1556.

¶21 In Harris, the Tenth Circuit addressed indigent state
defendants’ collateral claims that their rights were violated by
the delay in processing their direct criminal appeals in
Oklahoma courts. Id. at 1546. At the time, “the appellate criminal
justice system in Oklahoma was in a crisis,” resulting in delays—
for example, “two to four years before [indigent defendants’]
appellate brief[s] would be filed.” Id. at 1550; see also id. at 1546.
In addressing the defendants’ claims, the Tenth Circuit required
the state to “afford the defendant a timely appeal, for an appeal
that is inordinately delayed is as much a meaningless ritual as an
appeal that is adjudicated without the benefit of effective counsel
or a transcript of the trial court proceedings.” Id. at 1558 (cleaned
up). Put another way, unlike the Utah Supreme Court in
Arguelles, the Harris court expressly recognized the right to a
timely appeal. Compare id., with Arguelles, 2003 UT 1, ¶¶ 124–25
(noting the Harris decision and declining to reach a similar
conclusion). Harris is therefore distinguishable on this basis
alone.

¶22 Even so, Harris does not lend support to Bunker’s
position. To evaluate whether a defendant’s right to timely
process had been violated by delays in the appellate process, the
Harris court employed a similar framework to that enunciated by

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the United States Supreme Court for analyzing a defendant’s
Sixth Amendment right to a speedy trial. 15 F.3d at 1558–59
(citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). The Harris court
stated that the following factors should be assessed and
balanced:

a. the length of the delay;

b. the reason for the delay and whether that reason
is justified;

c. whether the petitioner asserted his right to a
timely appeal; and

d. whether the delay prejudiced the petitioner by

i. causing the petitioner to suffer oppressive
incarceration pending appeal; or

ii. causing the petitioner to suffer
constitutionally cognizable anxiety and
concern awaiting the outcome of his or her
appeal; or

iii. impairing the petitioner’s grounds for
appeal or his or her defenses in the event of
a reversal and retrial.

Id. at 1559. 4 With regard to the first factor—length of delay—the
court concluded that “a two-year delay in finally adjudicating a

4. In a similar case to the one at hand, this court expressly
declined a criminal defendant’s invitation “to apply Harris’s
four-part test in evaluating whether his due process rights to a
timely appeal were violated.” State v. Frausto, 2002 UT App 259,
¶¶ 31–33, 53 P.3d 486. This case predated Arguelles, and without
discussing whether the defendant had the right to a timely
(continued…)

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direct criminal appeal ordinarily will give rise to a presumption
of inordinate delay that will satisfy this first factor in the
balancing test.” Id. at 1560.

¶23 Bunker reads Harris as standing for the proposition that a
criminal defendant who has faced a two-year delay in the
appellate process is presumptively relieved of the burden to
show prejudice stemming from the delay. To the contrary, the
Harris court explained that a two-year delay may be used “only
to presume excessive delay,” “not to presume the ultimate issue
of unconstitutionality.” Id. at 1560 n.10; see also id. at 1561 (“The
passage of two years creates only a presumption of inordinate
delay on appeal.”). The court further instructed that to reach the
ultimate issue, “the other prongs of the Barker test also must be
addressed.” Id. at 1560 n.10. Indeed, the court stated that a
defendant ordinarily “must make some showing on the fourth
factor—prejudice—to establish a due process violation.” 5 Id. at
1559. Harris therefore does not support Bunker’s position that
delay alone may be presumptively prejudicial. Given that Utah
law does not recognize the right to a timely appeal and given
that the cases on which Bunker relies are inapposite, the second
component of Bunker’s argument—the delay in his appellate
process—also does not weigh in favor of discerning error, let
alone structural error.

(…continued)
appeal, this court indicated that it is important for defendants
alleging due process violations to “show how [they have]
suffered prejudice because of the delays in [their] appeal[s].” Id.
¶ 37.

5. The Harris court did recognize that “delay substantially
beyond two years, at least in a case that does not warrant a
lengthier appellate process, will reduce the burden of proof on
the other three factors necessary to establish a due process
violation.” Harris v. Champion, 15 F.3d 1538, 1562 (10th Cir. 1994).

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¶24 In sum, Bunker has not convinced us that the unfortunate
delay in processing his appeal violated his rights or constituted
structural error. Because there was no error or structural error
that affected the “very framework” of his appeal, see State v.
Cruz, 2005 UT 45, ¶ 17, 122 P.3d 543, he is not relieved of his
burden to show how he was prejudiced by the delay in his
appeal. Bunker has not made that showing here. We therefore
deny his request that we fashion a remedy for the delay.

CONCLUSION

¶25 Bunker has not established that his rights were violated
by a delay during his appeal. He also has not shown that there is
a structural error for which we must presume prejudice, and we
deny his related request for relief. We accordingly affirm the
district court’s decision revoking his probation.

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