People v. Iacopelli , 141 Mich. App. 566 ( 1985 )

141 Mich. App. 566 (1985)

PEOPLE
v.
IACOPELLI

Docket No. 57828.

Michigan Court of Appeals.

Decided January 16, 1985.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.

Pasquale Ciccodicola, for defendant on appeal.

Before: R.M. MAHER, P.J., and D.E. HOLBROOK, JR., and S.J. LATREILLE,^[*] JJ.

PER CURIAM.

Defendant was convicted of carrying a concealed weapon in an automobile, MCL 750.227; MSA 28.424. After a jury trial in August, 1971, defendant failed to appear for sentencing and remained a fugitive until July, 1980, when he was arrested in a foreign jurisdiction. After defendant unsuccessfully contested extradition, he was extradited and sentenced to a term of imprisonment of 169 days (which is the time spent incarcerated while contesting extradition) and $2,000 in costs for the extradition. The transcripts of his lower court record are lost and cannot be settled under GCR 1963, 812.2(b). On appeal defendant contends that the loss of those records requires a peremptory reversal. We do not agree.

Merely because the records are unavailable does not give rise to a presumption of entitlement to an automatic reversal.

"`Doubts should be resolved in favor of the integrity, competence and proper performance of their official duties by the judge and the State's attorney. * * * If any presumption is to be indulged it should be one of regularity rather than of irregularity * * * Such a presumption of regularity indicates that the court constitutionally discharged rather than unconstitutionally disregarded its state and federal duties.' Bute v Illinois (1947), 333 U.S. 640, 671, 672 (68 S. Ct. 763, 92 L. Ed. 987). The presumption of regularity has been recognized in Michigan. People v Auerbach (1913), 176 Mich. 23, 43." People v Carson, 19 Mich. App. 1, 7, fn 10; 172 NW2d 211 (1969), lv den 383 Mich. 780 (1970).

"We do not mean to be understood as saying that the unavailability of the transcript of the proceedings at which an accused person was convicted necessarily affects the validity of his conviction. The failure of the state to provide a transcript when, after good faith effort, it cannot physically do so, does not automatically entitle a defendant to a new trial. Norvell v Illinois (1963), 373 U.S. 420 (83 S. Ct. 1366, 10 L. Ed. 2d 456), reh den 375 U.S. 870 (84 S. Ct. 27, 11 L. Ed. 2d 99); United States, ex rel Smart v Pate (CA 7, 1963), 318 F2d 559, 562; contrast United States v Randolph (CA 7, 1958), 259 F2d 215. We hold, rather, that where there is no transcript the defendant may offer proof in support of his assertions of what occurred when he was convicted." Id., pp 7-8.

The unique twist to this case is that the ten-year delay between conviction and claim of appeal is wholly attributable to the defendant.

"The appellant is bound to act with reasonable promptness after the trial in securing the transcript from the reporter, and if his failure to secure the transcript is due primarily to his own negligence or delay, rather than to the death or disability of the reporter, a new trial will generally be denied." 19 ALR2d 1098, 1107.

Here defendant did not attempt to protect his rights. Although this appeal is technically timely, GCR 1963, 803.1, the nine-year delay between conviction and sentencing is a mockery of our system. The state has a right to rely on expeditious claims of appeal by defendants. To allow such a claim to stand under circumstances such as this would be to allow form to overtake substance.

While we agree that a defendant has a constitutional right to appeal where, as here, he has compromised his position by his own misconduct, that right must be balanced. The state's responsibility for lost transcripts should diminish as the defendant-caused delay lengthens. When the delay is as extreme as it is here, and only the right to appeal is alleged (no specific error is noted as in Carson, supra), we cannot reward defendant for being a fugitive for nine years.

Accordingly we deny defendant's request for peremptory reversal or a new trial.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.