In re Lund

In re Lund  (2003-137); 177 Vt. 465; 857 A.2d 279

2004 VT 55

[Filed 08-Jun-2004]


                                 ENTRY ORDER

                                 2004 VT 55

                      SUPREME COURT DOCKET NO. 2003-137

                              MARCH TERM, 2004

  In re James Lund                   }     APPEALED FROM:
                                     }
                                     }
                                     }     Essex Superior Court
                                     }     
                                     }
                                     }     DOCKET NO. 7-9-99 Excv

                                          Trial Judges: Dennis R. Pearson
                                                        M. Kathleen Manley

            In the above-entitled cause, the Clerk will enter:

       ¶ 1     In this post-conviction-relief (PCR) proceeding, the State
  appeals the superior court's order vacating petitioner's sexual-assault
  conviction based on its determination that petitioner received ineffective
  assistance of counsel before and during his trial.  We grant petitioner's
  motion to dismiss the appeal as untimely filed, and, therefore, do not
  reach the merits of the State's arguments on appeal.

       ¶ 2     The superior court entered its judgment on Thursday, February
  13, 2003.  Because the thirtieth day following the judgment fell on
  Saturday, March 15, the deadline for the filing of a notice of appeal was
  Monday, March 17.  See V.R.A.P. 4 (notice of appeal must be filed within
  thirty days of entry of judgment); V.R.C.P. 6(a) (in computing time periods
  allowed by rules, statutes, or court orders, last day of period shall be
  included unless it falls on Saturday, Sunday, or legal holiday, in which
  case period runs until end of next day that is not Saturday, Sunday, or
  legal holiday).  On February 25, the State filed a motion to stay entry of
  judgment pending appeal, but did not file a notice of appeal until March
  18, following the hearing on the State's motion.

        
       ¶ 3     On March 31, 2003, the State filed a motion to extend time to
  file its notice of appeal one day beyond the thirty-day deadline.  The
  State's excuse for having filed the notice of appeal late was that the
  state's attorney mistakenly believed that his motion to stay judgment
  pending appeal was one of the motions that tolled the running of the
  thirty-day appeal period.  Following a hearing, the superior court granted
  the State's motion to file a late appeal, concluding that the State had
  complied with the spirit of the law because (1) its motion to stay was
  filed within the thirty-day appeal period and gave petitioner notice that
  it intended to file an appeal; (2) its notice of appeal was only one day
  late; and (3) its motion to extend time to file a late appeal was filed
  within thirty days of the expiration of the appeal period.  The court
  determined that, under the circumstances, granting the State's motion to
  extend time would not undermine the goal of finality - the principal reason
  for requiring strict adherence to deadlines for filing notices of appeal. 
  Petitioner seeks dismissal of the appeal, arguing that the superior court
  abused its discretion by granting the State's motion to extend time to file
  its appeal based on the state's attorney's ignorance of court rules.  See
  Solomon v. Design Dev., Inc., 139 Vt. 251, 252-53, 427 A.2d 381, 382 (1981)
  (standard for reviewing trial court's decision whether to extend time to
  file notice of appeal is abuse of discretion).

       ¶ 4     "Appellate Rules 3 and 4 make clear that the timely filing of
  the notice of appeal is a jurisdictional requirement."  In re L.B., 147 Vt.
  82, 84, 510 A.2d 1319, 1321 (1986).  Rule 4 of the Rules of Appellate
  Procedure provides, however, that the trial court may extend time to file a
  notice of appeal (1) for good cause if a "request" is made before
  expiration of the thirty-day appeal period or (2) "for excusable neglect"
  if a request is made within thirty days after expiration of the appeal
  period.  In this case, the State has not argued that its February 25 motion
  to stay pending appeal could be, or should be, construed as a request to
  extend time based on good cause.  Rather, by filing its March 31 motion,
  the State acknowledged that it had to show excusable neglect because it did
  not request an extension of time within the initial thirty-day appeal
  period.  

       ¶ 5     We have recently emphasized that Rule 4's "excusable neglect"
  standard must be strictly construed to prevent a de-facto enlargement of
  the appeal period from thirty to sixty days.  See In re Town of Killington,
  2003 VT 87A, ¶ 19, 838 A.2d 98 (internal office procedure breakdown is not
  excusable neglect, as matter of law); Bergeron v. Boyle, 2003 VT 89, ¶ 22,
  838 A.2d 918 (trial court abused its discretion by granting extension of
  time to file cross-appeal because of attorney's vacation schedule and
  breakdown in internal office procedures).  In Killington, we acknowledged
  that the most recent United States Supreme Court case construing a
  comparable federal rule cited four non-exclusive factors for determining
  when neglect will be excusable - "'the danger of prejudice to the
  [nonmovant], the length of the delay and its potential impact on judicial
  proceedings, the reason for the delay, including whether it was within the
  reasonable control of the movant, and whether the movant acted in good
  faith.'" 2003 VT 87A, at ¶ 16 (quoting Pioneer Inv. Servs. v. Brunswick
  Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)).  Like most other courts,
  however, we concluded that the most important of these factors is the third
  one and warned that, despite the flexible standard announced in Pioneer,
  ignorance of the law or inattention to detail would rarely constitute
  excusable neglect.  See 2003 VT 87A, at ¶¶ 16-17; see also Pioneer, 507 U.S.  at 392 (ignorance of rules or mistakes in construing rules do not
  usually constitute excusable neglect); Silivanch v. Celebrity Cruises,
  Inc., 333 F.3d 355, 366-67 (2d Cir. 2003) (even after Pioneer, equities
  will rarely if ever favor party who fails to follow clear dictates of court
  rule; where rule is clear, party claiming excusable neglect will ordinarily
  lose); Webster v. Pacesetter, Inc., 270 F. Supp. 2d 9, 12 (D. D.C. 2003)
  (Pioneer did not change longstanding principle that mistakes of law
  generally cannot form basis for claim of excusable neglect).

       ¶ 6     Thus, in Killington, we rejected claims of excusable neglect
  based on factors totally within the control of the moving party or the
  moving party's attorney.  2003 VT 87A, at ¶ 17.  In reaching this
  conclusion, we cited, among others, a criminal case in which the Second
  Circuit Court of Appeals rejected a request for an extension of time to
  file a late notice of appeal based on the attorney's ignorance of the rule
  establishing the deadline for criminal appeals.  See id. (citing United
  States v. Hooper, 43 F.3d 26, 28-29 (2d Cir. 1994)).  The Second Circuit
  affirmed the trial court's refusal to extend time because the attorney's
  failure to comply with the rule did not result from any plausible
  misconstruction of the rule, and thus the attorney could have timely filed
  the appeal simply by becoming aware of and complying with the
  straightforward rule.  See Hooper, 43 F.3d at 28-29; see also Silivanch,
  333 F.3d  at 370 (attorney's misunderstanding of clear rule cannot
  constitute excusable neglect that relieves party of consequences of filing
  untimely appeal); United States v. Gibson, 832 F. Supp. 324, 327 (D. Kan.
  1993) (ignorance of law or unfamiliarity with rules will almost invariably
  fall short of excusable neglect).

       ¶ 7     Here, there is no excusable neglect within the meaning of our
  controlling case law.  Rule 4 plainly sets forth which types of motions
  will toll the running of the appeal period, and a motion to stay the
  judgment is not one of them.  The state's attorney conceded that the notice
  of appeal was untimely filed due to a mistake of law on his part.  Under
  these circumstances, the superior court abused its discretion by granting
  the State's motion to extend time for the filing of the notice of appeal
  based on excusable neglect.  Cf. Hall v. Hall, 22 P.3d 965, 967 (Haw. 2001)
  (trial court abused its discretion in granting motion to extend time to
  file notice of appeal based on attorney's failure to read and comply with
  plain language of applicable procedural rules); Alley v. Alley, 840 A.2d 107, 108 (Me. 2004) (per curiam) (attorney's mistaken belief as to law does
  not rise to level of excusable neglect).  If we were to endorse the
  superior court's main reasoning for allowing the appeal - that the State's
  motion for a stay of judgment pending appeal put petitioner on notice that
  the State intended to file a notice of appeal - we would, in effect, be
  codifying the mistaken understanding of the law into the applicable rule. 
  Because the State has utterly failed to satisfy the requirement that any
  delay beyond the jurisdictional time limit be the result of excusable
  neglect, the appeal must be dismissed.  See Gibson, 832 F. Supp.  at 328.
    
       Appeal dismissed.


       BY THE COURT:


  _______________________________________
  John A. Dooley, Associate Justice

  _______________________________________
  Denise R. Johnson, Associate Justice

  _______________________________________
  Paul L. Reiber, Associate Justice

  _______________________________________
  Linda Levitt, District Judge, 
  Specially Assigned

  _______________________________________
  Frederic W. Allen, Chief Justice (Ret.),
  Specially Assigned