Opinion
Crim. App. No. 1997-014; Re: Terr. Ct. Crim. No. F186/1996
November 20, 2001
Richard H. Dollison, Esq., St. Thomas, U.S.V.I., Attorney for Appellant.
Maureen P. Cormier, Esq., Asst. Attorney General, Dept. of Justice, Attorney for Appellee.
OPINION
On May 17, 2001, Kenneth Edwards' motion to reinstate his appeal to the United States Court of Appeals for the Third Circuit was denied. The Court of Appeals had dismissed for lack of jurisdiction because Edwards' notice of appeal was not filed within ten days of the entry of judgment by this Court as required by Rule 4(b) of the Federal Rules of Appellate Procedure ["Fed.R.App.P." or "FRAP"]. (See Order, Crim. App. No. 1997-014 (entered May 17, 2001).) Edwards' appeal was not reinstated because this Court had no power to extend the time for filing an appeal beyond the thirty-day maximum period allowed by Rule 4(b)(4). Further, even if it applied to Edward's case, the "unique circumstances" doctrine would not support an extension of his appeal time beyond the thirty-day maximum. For the reasons stated, Edwards' timely motion for reconsideration will be denied.
I. BACKGROUND
On September 25, 2000, this Court filed its final order and judgment affirming Edwards' convictions for grand larceny and conspiracy to commit grand larceny and remanding for the Territorial Court to amend its judgment. On September 28, 2000, the Clerk of the Appellate Division noted the judgment in the Court's docket. The mandate followed on November 21, 2000, and the Territorial Court entered its corrected judgment on November 24, 2000. Edwards did not file his notice of appeal of the Appellate Division's final order to the United States Court of Appeals for the Third Circuit until November 29, 2000. The Court of Appeals dismissed the appeal as untimely filed.
In his motion for reinstatement, Edwards essentially conceded that this Court generally has no power to extend the time beyond the additional thirty days. See FED. R. APP. P. 4(b)(4) (providing that the district court may extend nunc pro tunc the time to file a notice of appeal "for a period not to exceed 30 days from the time otherwise provided by this Rule 4(b)"). Instead, Edwards argued that the Appellate Division should reinstate his appeal on the equitable ground that his counsel did not receive notice of the September 25th judgment until November 22, 2000, well beyond both the ten-day filing period under Rule 4(b) and the thirty-day maximum period allowed under Rule 4(b)(4) for extensions of time for good cause or excusable neglect.
II. DISCUSSION
Fed.R.App.P. 4(b)(1)(A)(i) provides that "[i]n a criminal case, a defendant's notice of appeal [to the Third Circuit Court of Appeals] must be filed in the [Appellate Division of the] district court within 10 days after . . . the entry of the judgment or order being appealed." The date the judgment of the Appellate Division was entered is the date it was noted on the court's docket. See V.I. R. APP. P. 28 ["VIRAP"] ("The notation of a judgment in the docket constitutes entry of the [judgment]."). Thus, the ten-day period for Edwards to file his notice of appeal began on September 28, 2000, the date the Clerk noted the judgment on this Court's docket.
In support of Edwards' motion for reinstatement of the appeal, Edwards' counsel filed an affidavit in which he stated that he did not receive a copy of the Appellate Division's judgment either by mail or in his District Court box (i.e., the box assigned to the firm of Stryker, Duensing, Casner Dollison) before the expiration of the ten-day period for filing a notice of appeal under FRAP 4(b)(1) or even before the thirty-day maximum extension of time allowed by FRAP 4(b)(4). He further asserted that he received notice of our judgment for the first time when he received a certified copy of the mandate mailed to him by the appellate clerk on November 22, 2000.
Rule 4(b)(4) provides:
Upon a finding of excusable neglect or good cause, the district court may — before or after the time has expired, with or without motion and notice — extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b).
FED. R. APP. P. 4(b)(4).
Counsel attempted to lay the sole blame on the appellate clerk, prompting this comment from the Court: "At bottom, the `unfortunate set of circumstances' at work here is not any clerical or administrative error, but rather that Edwards' counsel failed to check the docket in his case for at least sixty days, if not more." (Mem. Op. at 7 (filed May 17, 2001).) The Court nevertheless gave counsel the benefit of the doubt for purposes of deciding the motion and assumed that the appellate clerk had indeed failed to notify counsel immediately of the entry of judgment as required by VIRAP 35(c), and by extension, that this failure resulted in counsel's lack of notice until far beyond the time allowed by Rule 4(b) to file a notice of appeal. Even on these assumed facts, the Court had to deny the motion because it had no power to extend the time for appeal beyond the extra thirty days allowed by FRAP 4(b)(4).
Rule 35(c) provides that the clerk of the Appellant Division shall serve notice of judgments "immediately upon entry of an order or judgment . . . by mail upon each party to the proceeding (or by putting a copy of the order or judgment in counsel's District Court box) together with a copy of any opinion respecting the order or judgment, and shall make a note in the docket of the mailing." VIRAP 35(c) ("Duties of Clerk").
In support of his motion for reconsideration, Edwards submits the affidavits of an office assistant and paralegal employed by the law firm of Stryker, Duensing, Casner Dollison. The office assistant attests that at least since September 2000, one of her daily duties has been to collect documents from the firm's district court box. (See Affidavit of Georgina Nicholas ¶ 6 (attached as Ex. A to Appellant's Mot. to Reconsider).) The paralegal attests that at least since September 2000, one of her duties is to centrally docket documents received from the district court box. (See Affidavit of Karen R. Christensen ¶ 4 (attached as Ex. B to Appellant's Mot. to Reconsider).) She further attests that she was aware of this case and received the Appellate Division's order on November 28, 2000. (See id. ¶¶ 8, 9.) As the Court's original ruling was premised on the assumption that every fact offered by Edwards in support of his original motion was true, these additional submissions add little to the analysis. Contrary to counsel's assertions here, the Court did not "believe an unsworn clerical date notation over the sworn statements of defense counsel and the Assistant Attorney General." (See Appellant's Mot. for Reconsideration at 5.) Rather, it expressed displeasure at defense counsel's failure even to acknowledge the existence of evidence that would suggest that the clerk had in fact timely served counsel with notice of entry of the judgment.
Edwards here urges reconsideration of the Court's rejection of the applicability of the "unique circumstances" doctrine to his case. Alternatively, he argues that the Court could allow the appeal by finding that his appeal time commenced not from the date our judgment was entered on the Appellate Division's docket, but from the date the Territorial Court entered its amended sentence. Both arguments are without merit.
Although the Supreme Court has articulated an exception to the jurisdictional mandates of FRAP 4 that would allow a Court of Appeals to extend the time for perfecting an appeal due to "unique circumstances," the appellate clerk's assumed failure to timely notify counsel of the judgment in this case does not amount to such circumstances. Moreover, it is not for the Appellate Division to determine the applicability of the unique circumstances exception to FRAP's jurisdictional time limits. Edwards complains that this Court relied on authority from another jurisdiction without first examining the "interplay" between VIRAP 35(c), FRAP 4(b)(4), and the "unique circumstances" doctrine. While acknowledging the "unique circumstances" doctrine announced in Thompson v. INS, 375 U.S. 384 (1964), in its May 17, 2001 Memorandum, this Court cited only a First Circuit Court of Appeals decision in ruling that it had no authority to extend the time for appeal beyond the thirty days allowed by 4(b)(4). See United States v. Rapoport, 159 F.3d 1, 3 (1st Cir. 1998). Emphasizing that "compliance with the time limits set forth in Fed.R.App.P. 4(b) is `mandatory and jurisdictional,'" Rapoport noted first that FRAP 26(b) explicitly prohibits the court from enlarging the time permitted for filing a notice of appeal and second that Thompson had never been invoked to extend the time for appeal beyond the maximum allowed by FRAP 4. See id. at 3 n. 2. A more extensive analysis of the binding authority in this jurisdiction does not change the result.
In the Supreme Court's Thompson case, the petitioner filed a motion for new trial under the Federal Rules of Criminal Procedure which was in fact untimely but which the district court declared had been made in "ample time." See 375 U.S. at 385. After the district court denied the motion on the merits, the petitioner filed a notice of appeal that would have been timely if the post-trial motion had in fact tolled the period for perfecting appeal. The Court of Appeals dismissed the appeal because the untimely post-trial motion did not toll the appeal. The Supreme Court reversed, finding the petitioner's justified reliance on the statement of the district court that his motion was timely to be a "unique" circumstance which rendered timely his otherwise untimely notice of appeal. Id. at 387.
As recognized by the Court of Appeals for the Third Circuit, the Supreme Court has limited the application of the "unique circumstances" doctrine set out in Thompson v. INS to situations "`where a party has performed an act which, if properly done, would postpone the deadline for filing his appeal and has received specific assurance by a judicial officer that this act has been properly done.'" Kraus v. Consolidated Rail Corp., 899 F.2d 1360, 1365 (3d Cir. 1990) (quoting Osterneck v. Ernst Whinney, 489 U.S. 169, 179 (1989)). Following the lead of the Supreme Court, the Court of Appeals held in Kraus that it will "narrowly constru[e] and sparingly appl[y] the `unique circumstances exception to time restrictions." Id. (internal quotations omitted) (alterations in original). It further provided that, in determining whether the application of the unique circumstances exception is appropriate, the Court of Appeals should look not only to whether the party or attorney actually relied on the district court's action, but also "to the reasonableness of the party's conduct in the totality." Id.
Edwards concedes that there was no affirmative behavior on the part of the Appellate Division that led him to believe that his appeal was timely. (See Def.'s Mot. Reconsideration at 9.) Further, Edwards does not assert that he has done an act, which if properly done, would have postponed the time for appeal.
Thus, by its terms and as applied by the Court of Appeals for the Third Circuit, Thompson v. INS does not apply to Edwards' notice of appeal. Even more importantly, however, the court whose judgment is being appealed has no role in determining whether there may be unique circumstances for extending the time to appeal beyond that allowed by Rule 4(b)(4). The Appellate Division cannot require the Court of Appeals to exercise jurisdiction over an untimely appeal. Thus, unlike situations governed by Rule 4(b)(4), which gives the authority to the Appellate Division of the District Court to determine whether there as been good cause or excusable neglect warranting an extension up to the thirty-day maximum, only the Court of Appeals for the Third Circuit can evaluate the uniqueness of circumstances which might make timely an otherwise untimely notice of appeal. See Kraus, 899 F.2d at 1365.
Edwards' argument that the Court made an implied promise, through VIRAP 35(c), to notify him of entry of the judgment is absurd. In addition, the Court takes judicial notice of the fact that the Appellate Division's computerized docketing system is freely and publicly available at a computer terminal mere inches from counsel's district court mailbox.
Similarly, the Appellate Division has no authority to vary the date from which the time for filing an appeal began to run, which was the day the judgment was entered on its docket, as prescribed by Rule 4(b)(1). None of the cases cited by Edwards support the novel idea that the Appellate Division can construe the "entry of [its] judgment" under Rule 4 to mean the entry of the amended judgment on the Territorial Court's docket. See United States v. Deans, 436 F.2d 596, 599 (3d Cir. 1971) (Where the sentencing judge never informed the defendant of his right to appeal as required by Fed.R.Crim.P. 32(a)(2), "the mandatory time limit for perfecting an appeal [did] not begin to run until the defendant is actually notified of his rights."); United States v. Davis, 924 F.2d 501, 505 (3d Cir. 1991) (confining Deans to notification of a defendant's right to appeal under Fed.R.Crim.P. 32(a)(2)).
Edwards also attempts to rely on Government of the Virgin Islands v. Roldan, 612 F.2d 775, 777 (3d Cir. 1979). The Court of Appeals ruled that the time for filing an appeal commenced from the date the trial court entered its judgment in the docket, even though the judgment was entered nunc pro tunc to a previous date that would have made Roldan's appeal untimely. Even if the Territorial Court's entry of the amended sentence could be construed as having been entered nunc pro tunc to September 25th, Roldan clearly does not apply because Edwards is seeking to appeal the Appellate Division's judgment affirming his conviction. The later amendment by the Territorial Court of its sentence had no effect whatsoever on the date the Appellate Division's judgment was entered on its docket.
II. CONCLUSION
The Appellate Division of the District Court has no authority to extend the time for appeal beyond the limits set forth in FRAP 4(b)(4). The ten-day time period for Edwards to file his appeal began on September 28, 2000, not on November 24, 2000, when the Territorial Court entered its judgment amending his sentence. Accordingly, Edwards' motion for reconsideration will be denied. An appropriate order follows.
ORDER
For the reasons stated in the accompanying Opinion of even date, it is hereby
ORDERED that the appellant's motion for reconsideration of its Order of May 17, 2001 is DENIED.