Chernowski v. State, A14A2151, February 12, 2015. Dora Chernowski appealed her DUI conviction resulting from a 2004 single-car accident in Fulton County. She claimed that her Due Process rights were violated by a seven-year delay in the transmission of the trial court record to the Georgia Court of Appeals. She was tried and convicted by a jury in August of 2007. She filed a notice of appeal on August 24, 2007. The Appeal was not docketed until July 25, 2014, a seven-year delay. To put this in perspective, ninety-nine percent of every other clerk’s office in the State will send up the records to the Court of Appeals in 30-45 days. On July 26, 2012, the clerk’s office sent Chernowski’s attorney a letter requesting an $83.00 fee to prepare the appellate record and make sure any transcripts were filed. During this five-year delay, there was no evidence in the record that Chernowski’s attorney ever checked on the status of the appeal. A little over 30 days later the record fee was paid to the clerk’s office by Chernowski’s lawyer.
On September 5, 2012, another letter was sent by the clerk’s office requesting that the transcript be filed. While it is the responsibility of the appealing lawyer to make sure all transcripts are included, OCGA 5-6-43 requires the clerk to send the record to the appellate court in 5 days after transcripts are filed and twenty days otherwise. Further, if the records are incomplete send them up certifying that it is incomplete. On December 31, 2012, the State filed a motion to dismiss the appeal. A hearing was held on July 24. 2013 on the State’s motion to dismiss but no order was filed nor any transcript of that hearing. In August 2013, a motion for extension of time to file the transcript was filed in the trial court. The court granted the motion because the court reporter indicated that it could not be completed in time.
Delayed appeals are governed by the same analysis applied to Constitutional Speedy Trials under Barker v. Wingo, 407 U.S. 514, (1972) and the same analysis is used. However, such a Due Process claim must be raised at the trial level. Chernowski should have filed a motion in the trial court to have the record completed under O.C.G.A. 5-6-41(f) and raised his Due Process claims at that hearing. Because the Due Process claims from the appeal were not made at the trial court, they are not properly before the appellate court and must be denied.
Wait a minute, the Court of Appeals remanded the case sua sponte (even though not appealed) because of an error in sentencing. Could this be a non-so-subtle invitation to raise the Due Process Appeal delay in the trial court and appeal again? I don’t see why not. I hope Chernowski’s attorney gets the message. Hint, Hint, Wink, Wink, Nudge, Nudge…know what I mean.
-Author: George Creal