Opinion
No. 30577-1-II
Filed: June 8, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 00-1-00927-7. Judgment or order under review. Date filed: 06/06/2003. Judge signing: Hon. James R Orlando.
Counsel for Appellant(s), Timothy Patrick Coogan, Attorney at Law, 107 Tacoma Ave N, Tacoma, WA 98403-2631.
Counsel for Respondent(s), Harry R Boesche Jr, Luce Lombino Riggio PS, 4505 Pacific Hwy E Ste a Tacoma, WA 98424-2638.
David E. Burlingame appeals his driving under the influence (DUI) conviction following his trial de novo in the Pierce County Superior Court after appealing his original conviction in Roy Municipal Court. He argues that his Sixth Amendment speedy trial right was violated because the trial de novo did not commence within a reasonable time following his municipal court conviction and request for trial de novo.
We hold that Burlingame's request for trial de novo invoked the superior court's appellate jurisdiction, rather than his speedy trial rights. Burlingame's having failed to establish that unreasonable appellate delay violated his due process rights, we affirm.
FACTS
In 2000, a Roy Municipal Court jury convicted Burlingame of driving under the influence of intoxicants. Burlingame appealed, requesting a trial de novo in superior court.
There is nothing in the record before us, apart from the parties' arguments, that specifies the date of the municipal court conviction or when Burlingame filed his CrRLJ appeal. But neither party asserts that the CrRLJ appeal was untimely, and the record suggests that Burlingame filed the appeal some time in 2000.
On May 9, 2002, the City of Roy moved to dismiss the appeal as abandoned. On June 17, Burlingame moved to dismiss the appeal and to reverse the municipal court conviction, arguing that the City had not `moved forward on this matter for over two years.' Clerk's Papers (CP) at 9. The City apparently withdrew its motion.
The superior court heard argument on Burlingame's motion. Burlingame argued that once he filed his notice of appeal and request for trial de novo in superior court, the `burden' shifted to the City to bring him to trial in a timely manner. The superior court denied Burlingame's motion, reserving the right to rule on any speedy trial or due process issues related to the delay. The record on appeal does not show that Burlingame raised any speedy trial or due process issues during the new trial in superior court.
The record contains documents suggesting that the superior court eventually dismissed the case and affirmed the municipal court conviction after Burlingame and his counsel failed to appear for the first trial date. Burlingame apparently moved for reconsideration, and the trial court allowed the case to proceed to trial. It does not appear that Burlingame raised any speedy trial or due process issues related to the delay at that time.
Apart from these documents, the only other documents in the appellate record related to the trial de novo are the jury instructions and the judgment and sentence.
Following a superior court trial de novo, a jury convicted Burlingame as charged. He appeals his superior court conviction, claiming denial of speedy trial rights.
ANALYSIS
Burlingame argues that his Sixth Amendment right to speedy trial was violated because the City failed to bring him to trial in superior court within a reasonable time after he filed his appeal. We disagree.
I. Speedy Trial de Novo
According to our Supreme Court, `A trial de novo, [following a timely commenced criminal trial in municipal court], represents the exercise of the appellate jurisdiction of the superior court and not its original jurisdiction'; therefore, the speedy trial rules of CrR 3.3(b) and CrRLJ 3.3(b) did not apply. City of Seattle v. Crockett, 87 Wn.2d 253, 256, 551 P.2d 740 (1976) (emphasis added). The Court recognized that the defendant `continues at trial de novo to have a constitutionally protected right to speedy trial.' But it further held that when a defendant appeals a municipal court conviction, `the responsibility for and the burden of compliance with the rules shift away from the court and the prosecuting attorney,' and it becomes `the defendant's burden to prosecute an appeal diligently.' Crockett, 87 Wn.2d at 257 (citations omitted) (emphasis added).
Burlingame concedes that CrR 3.3 and CrRLJ 3.3 do not apply here.
The record here shows only that Burlingame filed his CrRLJ appeal in 2000 and then did nothing more to pursue the appeal until after the City filed its motion to dismiss for abandonment in May 2002. Furthermore, nothing in the record on appeal shows that the municipal court ever filed the record as required by CrRLJ 9.1(d) or that Burlingame ever applied under CrRLJ 9.3(b) for an order requiring the municipal court to act. Burlingame has failed to show that he diligently pursued his appeal in superior court; therefore, his speedy trial argument fails under Crockett.
Although Burlingame alleges that there was no transcript below, the `transcript' required under CrRLJ 9.1(d) includes `a copy of all written pleadings and docket entries and . . . exhibits introduced into evidence in the trial before the court of limited jurisdiction.'
II. Speedy Appeal
Our states law guarantees the right to appeal criminal prosecutions and recognizes that substantial delay in the appellate process may constitute a due process violation. State v. Lennon, 94 Wn. App. 573, 577-78, 976 P.2d 121, 124, review denied, 138 Wn.2d 1014 (1999) (citing Wash. Const. art. I, sec. 22; United States v. Smith, 94 F.3d 204, 206-07 (6th Cir. 1996), cert. denied, 519 U.S. 1133 (1997); Coe v. Thurman, 922 F.2d 528, 530 (9th Cir. 1990); Rheuark v. Shaw, 628 F.2d 297, 302 (5th Cir. 1980), cert. denied, 450 U.S. 931 (1981)). To succeed on such a claim, however, the defendant must establish that (1) the length of delay was unreasonable; (2) there was no good reason for the delay; (3) he exercised diligence in pursuing the right to appeal; and (4) the delay was prejudicial. Lennon, 94 Wn. App. at 577-78 (adopting a modified version of the four-factor speedy trial test established in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), to apply to appellate delay). Burlingame fails to meet this four-part test.
First, we acknowledge that a delay of approximately two years is arguably unreasonable. See Smith, 94 F.3d at 209. Even assuming, without deciding, that Burlingame has met the first part of the test, he fails to meet the other three: He does not establish the reason for the delay, show that he exercised diligence in pursing the appeal, or establish that the delay prejudiced him. Having failed to establish a due process violation, Burlingame is not entitled to relief.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and BRIDGEWATER, J., concur.