2019 UT App 118

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

PETER JAMES BUNKER,

Appellant.

Opinion

No. 20160440-CA

Filed July 11, 2019

Third District Court, Silver Summit Department

The Honorable Paige Petersen

Nos. 131500342, 131500295

Ann M. Taliaferro, Attorney for Appellant

Sean D. Reyes and Christopher D. Ballard, Attorneys

for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which 

JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.

POHLMAN, Judge:

¶1 It is an old legal maxim that there is no right without a 

remedy. Peter James Bunker seeks in this appeal a remedy for 

delays in his appeals process without first establishing the 

infringement of any underlying rights. We accordingly affirm

the district court’s order terminating his probation as 

unsuccessful and reinstating his sentence.

BACKGROUND

¶2 In 2013, Bunker was charged with assault by a prisoner. 

After finding Bunker indigent, the district court appointed 
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20160440-CA 2 2019 UT App 118

counsel to represent him (Trial Counsel). Bunker pleaded guilty 

to the charge.

¶3 In June 2014, the district court sentenced Bunker to a 

prison term not to exceed five years. The court ordered this 

prison term to run consecutively to Bunker’s prison sentences in 

a separate case in which he pleaded guilty to three first-degree 

felonies and was sentenced to three concurrent zero-to-five-year 

prison terms, which the court had suspended in favor of 

probation. The court also ordered him to spend 320 days in jail 

with a credit of 247 days for time served. The court then 

suspended the prison term and placed Bunker on probation.1

¶4 In May 2015, Adult Probation and Parole (AP&P) alleged 

that Bunker had committed several probation violations. At a 

subsequent hearing before the district court that was handling 

both of Bunker’s cases, Bunker admitted to two probation 

violations. The court revoked his probation, ordered him to 

serve 120 days in jail with credit for 55 days already served, and 

then reinstated his probation.

 

1. On July 23, 2014, the district court received a handwritten 

document signed by Bunker himself. This document was titled,

“To the 3rd District Courts Notice of Appeal,” and its text asked 

for “a change of heart on [his] sentencing” and “a chance for a 

second opinion.” In response, the district court forwarded the 

document to the prosecutor and Trial Counsel. In an attached 

minute entry, the court advised counsel that it would “take no 

action at this time on any matter raised in the [document]” and 

invited them to file “an appropriate motion” if either one 

believed further action by the court was necessary. The parties 

debate whether the handwritten document constituted a notice 

of appeal. But the present appeal is taken exclusively from the 

district court’s May 2016 probation revocation decision. Thus, 

the treatment and effect of Bunker’s July 23, 2014 handwritten 

document are not questions that are properly before us.
State v. Bunker

20160440-CA 3 2019 UT App 118

¶5 The next year, AP&P again alleged that Bunker had 

violated the conditions of his probation. At a hearing, Bunker 

admitted to two probation violations, and the district court 

accordingly found that he had violated probation. On May 9, 

2016, the court terminated Bunker’s probation as unsuccessful 

and reinstated the three concurrent zero-to-five-year prison 

terms from the other case. Bunker filed a timely pro se notice of 

appeal on May 12, 2016, and this appeal was docketed.

¶6 Shortly after receiving the notice of appeal, this court 

informed Trial Counsel that this appeal had been filed. And in 

mid-July 2016, this court ordered Trial Counsel to file Bunker’s 

docketing statement or other proper motion. One week later, 

Trial Counsel moved to withdraw as counsel for Bunker, 

explaining that, pursuant to his contract with the county, his 

obligation to represent Bunker “terminates with the filing of a 

Notice of Appeal.” On August 2, 2016, this court granted the 

unopposed motion to withdraw and temporarily remanded the 

case to the district court for the determination of Bunker’s 

indigence and, “if indigency [was] found, for appointment of 

counsel.” This court stayed the appeal pending disposition in the 

district court.

¶7 For reasons that are not apparent on the record, it took

another nineteen months for the district court to appoint counsel 

(Appellate Attorney) to represent Bunker on appeal. Once 

Appellate Attorney was appointed, the appeal proceeded 

through the routine process of briefing and argument.

ISSUE ON APPEAL

¶8 On appeal, Bunker does not claim error in the district 

court’s decision to revoke his probation. He instead claims that 

the length of the appellate process violated his constitutional 

rights and resulted in structural error for which this court should 

presume prejudice. Because Bunker’s claim is necessarily 
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20160440-CA 4 2019 UT App 118

brought for the first time on appeal, no standard of review 

applies, and we decide the issue as a matter of law.

ANALYSIS

¶9 Bunker contends that he was denied due process because 

his rights to the assistance of appellate counsel and to a timely 

direct appeal have been violated.2 Pointing to the time after his 

appeal was docketed but during which he remained without 

appointed appellate counsel, he asserts that he “has been 

prevented from proceeding with his appeal” given that “it took 

the court system over 20 months to appoint [him] an appellate 

attorney.” According to Bunker, under the facts of his case, “the 

clear denial of fundamental constitutional rights is itself the 

harm,” and this court therefore should not require him “to 

demonstrate prejudice in showing the likelihood of a more 

favorable outcome in his sentence.” In other words, he asserts 

that this court should conclude that the delay in the processing 

of his appeal constitutes structural error.

¶10 Generally, “structural errors are flaws in the framework 

within which the trial proceeds, rather than simply an error in 

the trial process itself.” State v. Cruz, 2005 UT 45, ¶ 17, 122 P.3d 

543 (cleaned up). Because structural errors “affect the very 

framework of the trial,” “a structural error analysis presumes 

 

2. The State does not dispute that Bunker has the constitutional 

right to a direct appeal and the constitutional right to assistance 

of counsel on appeal. See Utah Const. art I, § 12 (“In criminal 

prosecutions the accused shall have . . . the right to appeal in all 

cases.”); Gailey v. State, 2016 UT 35, ¶ 27, 379 P.3d 1278 

(explaining that under the due process clause of the Fourteenth 

Amendment to the United States Constitution, defendants “have 

the right to the effective assistance of counsel on direct appeal”). 

For reasons discussed below, the State does not accept that 

Bunker has the constitutional right to a timely appeal.
State v. Bunker

20160440-CA 5 2019 UT App 118

prejudice.” Id. The United States Supreme Court has “found 

structural errors only in a very limited class of cases.” Johnson v. 

United States, 520 U.S. 461, 468 (1997).

¶11 Bunker’s argument, in essence, has two components: 

(1) he faced the “denial of appellate counsel” “at a critical stage 

in [the] proceedings” and (2) the delay in the appellate process is 

“a critical problem” that prevented him from proceeding with 

his appeal through no fault of his own. Bunker argues that these 

components, together, “constitute[] structural error that does not 

require a showing of harm.” We discuss each component in turn, 

and while we do not condone the regrettable delay in this 

appeal, we ultimately conclude that Bunker’s rights were not 

violated and that these circumstances do not amount to 

structural error.3

¶12 First, Bunker complains that he was deprived of his right 

to appellate counsel during critical stages of the proceedings. 

The Utah Supreme Court has recognized that “the denial of 

counsel is a structural error that does not require a showing of 

harm where assistance of counsel has been denied entirely or 

during a critical stage of the proceeding.” State v. Maestas, 2012 

UT 46, ¶ 57, 299 P.3d 892 (emphasis in original) (cleaned up). In 

other words, “the denial of the right to counsel, standing alone, 

does not necessarily constitute structural error. To find structural 

 

3. In terms of a remedy for the alleged structural error, Bunker 

suggests that this court “set aside and vacate his sentence” and, 

thereafter, “order the case closed.” He claims that this proposed 

remedy would recognize “the harm to [him] in having already 

served a majority of the sentence imposed by the unreviewed 

orders” and would incentivize “future courts and others to 

refrain” from delaying the process in a similar manner. Because 

we conclude that there is no error, structural or otherwise, 

warranting relief in this case, we need not consider the propriety 

of Bunker’s requested remedy.
State v. Bunker

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error, the deprivation must occur at a critical stage of criminal 

proceedings.” State v. Montes, 2019 UT App 74, ¶ 36.

¶13 “A critical stage is a step of a criminal proceeding that 

holds significant consequences for the accused.” Maestas, 2012 

UT 46, ¶ 57 (cleaned up). “Determining whether a given stage of 

a proceeding is critical involves considering whether the 

presence of counsel is necessary to preserve the defendant’s 

basic right to a fair trial, whether potential substantial prejudice 

to the defendant’s rights inheres in the particular confrontation, 

and the ability of counsel to help avoid that prejudice.” Id.

(cleaned up).

¶14 Bunker suggests that the time period between the 

granting of Trial Counsel’s motion to withdraw in August 2016 

and the appointment of Appellate Attorney in March 2018 was a 

critical stage of the appeal during which he was deprived of 

appellate counsel. Although the time period during which 

Bunker awaited the appointment of appellate counsel was 

unusually prolonged, we conclude this time period was not a 

critical stage of the proceeding. The only acts taken by this court 

and the district court while Bunker awaited the appointment of 

counsel involved verifying his indigency status and identifying 

who would serve as his appellate counsel. Supra ¶¶ 6–7. And 

when this court remanded to the district court for the 

appointment of counsel, it also expressly ordered that Bunker’s 

appeal was stayed pending the district court’s disposition. Supra

¶ 6. Thus, no decisions or events bearing on the merits of 

Bunker’s case occurred while he was unrepresented by appellate 

counsel. Cf. Penson v. Ohio, 488 U.S. 75, 88 (1988) (explaining that 

the denial of appellate counsel may lead to the presumption of 

prejudice and emphasizing that the denial of counsel in that 

particular case “left petitioner completely without representation 

during the appellate court’s actual decisional process”). And 

because of the stay, nothing happened in the court proceedings 

that would have required the presence of appellate counsel to 

preserve Bunker’s right to a fair resolution of his appeal on the 
State v. Bunker

20160440-CA 7 2019 UT App 118

merits. Once his appeal progressed to the stages that held 

“significant consequences” for him, i.e., briefing and argument, 

see Maestas, 2012 UT 46, ¶ 57 (cleaned up), Bunker was 

represented. As a result, he was not denied his right to counsel 

during a critical stage of the proceeding, and the first component 

of Bunker’s argument does not support structural error here.

¶15 The second component of Bunker’s argument, involving 

his complaints regarding the delay in the appellate process, 

implicate whether he has the right to a speedy appeal. A 

criminal defendant has the constitutional right to a speedy trial. 

State v. Rohwedder, 2018 UT App 182, ¶ 6, 436 P.3d 324 (citing 

U.S. Const. amend. VI). But as Bunker acknowledges, Utah 

courts have not recognized a right to a speedy appeal. In fact, the 

Utah Supreme Court has expressly “decline[d] to recognize a 

right to a speedy appeal.” State v. Arguelles, 2003 UT 1, ¶ 125, 63 

P.3d 731. The court also has noted that “[t]here is no controlling 

federal precedent that recognizes such a right” and has declined 

to consider whether the Utah Constitution includes this right. Id.

¶16 Arguelles is dispositive. Because this binding authority 

does not recognize a right to a speedy appeal, Bunker cannot 

show that the delay in his appeal violated this nonexistent right. 

See id.

¶17 Notwithstanding the fact that he lacks the “right to 

prosecute his appeal in a timely manner,” Bunker suggests that 

“there comes a point where delay in the appellate process 

becomes presumptively prejudicial.” In support, Bunker relies 

on State v. McClellan, 2009 UT 50, 216 P.3d 956, to argue that he 

should not be required to show prejudice resulting from the 

delay in this appeal. In McClellan, the defendant’s appeal took 

more than twenty years to reach the supreme court for several 

reasons outside the defendant’s control, including a near 

three-year delay in transferring his file from the trial court to the 

appellate court, the dismissal of his first attempt to appeal when 

his attorney failed to file a brief on his behalf, resentencing, and 
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20160440-CA 8 2019 UT App 118

changing attorneys. Id. ¶¶ 27–28. When the supreme court 

finally resolved the merits of his appeal, it concluded that the 

trial court should have disqualified the county attorney’s office 

from the case because the defendant’s prior defense counsel had 

joined the office three days before trial and the office failed to 

rebut the presumption that an impermissible conflict of interest 

existed. Id. ¶¶ 25–26. Thus, the supreme court determined that 

the trial court committed an error. Id. ¶ 26.

¶18 Having identified an error, the court then considered the 

question of prejudice. Id. ¶ 27. It stated that to support a reversal, 

appellate courts generally “require a showing of prejudice,” that 

is, a showing by the defendant that absent the error “there is a 

reasonable likelihood that the outcome of [the] trial would have 

been more favorable.” Id. In a departure from this rule, it 

decided to “presume prejudice” on the “specific facts” presented 

to it. Id. The court reasoned that such a presumption was 

justified by the fact that, during the twenty-year delay in hearing 

the appeal, “[m]uch of the record has been lost or destroyed” 

due to various “missteps outside of [the defendant’s] control.” 

Id. ¶¶ 27–28. Under those circumstances, the court determined 

that “it would be unjust to hold an incarcerated defendant 

responsible for the loss of the court records by requiring him to 

demonstrate the likelihood of a more favorable outcome.” Id.

¶ 27. The court therefore reversed and remanded for a new trial. 

Id. ¶ 28.

¶19 Bunker likens his case to McClellan and asks us to 

presume prejudice due to delay. But the supreme court’s 

decision to presume prejudice in McClellan was grounded in the 

fact that the very records that might have allowed the defendant 

to show prejudice were missing or destroyed as a result of the 

delay from mismanagement of his case. See id. ¶¶ 27–28, 34. In 

other words, the defendant’s ability to demonstrate prejudice 

was hampered by the long delay in hearing his appeal. See id.

Bunker has not claimed that he would face similar difficulty in 

demonstrating prejudice under the facts of his case, and he has 
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20160440-CA 9 2019 UT App 118

not identified any records that are now unavailable because of 

the length of time that it has taken to hear his appeal of his 

probation revocation. We therefore conclude that this case is 

distinguishable from McClellan, and we rely on McClellan’s 

general direction that for an error to warrant reversal, the 

appellant must show prejudice. See id. ¶ 27.

¶20 Bunker next relies on Harris v. Champion, 15 F.3d 1538 

(10th Cir. 1994), in which the United States Court of Appeals for 

the Tenth Circuit concluded that “delay in adjudicating a direct 

criminal appeal beyond two years from the filing of the notice of 

appeal gives rise to a presumption that the state appellate 

process is ineffective.” Id. at 1556.

¶21 In Harris, the Tenth Circuit addressed indigent state 

defendants’ collateral claims that their rights were violated by 

the delay in processing their direct criminal appeals in 

Oklahoma courts. Id. at 1546. At the time, “the appellate criminal 

justice system in Oklahoma was in a crisis,” resulting in delays—

for example, “two to four years before [indigent defendants’] 

appellate brief[s] would be filed.” Id. at 1550; see also id. at 1546. 

In addressing the defendants’ claims, the Tenth Circuit required 

the state to “afford the defendant a timely appeal, for an appeal 

that is inordinately delayed is as much a meaningless ritual as an 

appeal that is adjudicated without the benefit of effective counsel 

or a transcript of the trial court proceedings.” Id. at 1558 (cleaned 

up). Put another way, unlike the Utah Supreme Court in 

Arguelles, the Harris court expressly recognized the right to a 

timely appeal. Compare id., with Arguelles, 2003 UT 1, ¶¶ 124–25

(noting the Harris decision and declining to reach a similar 

conclusion). Harris is therefore distinguishable on this basis 

alone.

¶22 Even so, Harris does not lend support to Bunker’s 

position. To evaluate whether a defendant’s right to timely 

process had been violated by delays in the appellate process, the 

Harris court employed a similar framework to that enunciated by 
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20160440-CA 10 2019 UT App 118

the United States Supreme Court for analyzing a defendant’s 

Sixth Amendment right to a speedy trial. 15 F.3d at 1558–59 

(citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). The Harris court 

stated that the following factors should be assessed and 

balanced:

a. the length of the delay;

b. the reason for the delay and whether that reason 

is justified;

c. whether the petitioner asserted his right to a 

timely appeal; and

d. whether the delay prejudiced the petitioner by

i. causing the petitioner to suffer oppressive 

incarceration pending appeal; or

ii. causing the petitioner to suffer 

constitutionally cognizable anxiety and

concern awaiting the outcome of his or her 

appeal; or

iii. impairing the petitioner’s grounds for 

appeal or his or her defenses in the event of 

a reversal and retrial.

Id. at 1559.4 With regard to the first factor—length of delay—the 

court concluded that “a two-year delay in finally adjudicating a 

 

4. In a similar case to the one at hand, this court expressly 

declined a criminal defendant’s invitation “to apply Harris’s 

four-part test in evaluating whether his due process rights to a 

timely appeal were violated.” State v. Frausto, 2002 UT App 259, 

¶¶ 31–33, 53 P.3d 486. This case predated Arguelles, and without 

discussing whether the defendant had the right to a timely 

(continued...)
State v. Bunker

20160440-CA 11 2019 UT App 118

direct criminal appeal ordinarily will give rise to a presumption 

of inordinate delay that will satisfy this first factor in the 

balancing test.” Id. at 1560.

¶23 Bunker reads Harris as standing for the proposition that a 

criminal defendant who has faced a two-year delay in the 

appellate process is presumptively relieved of the burden to 

show prejudice stemming from the delay. To the contrary, the 

Harris court explained that a two-year delay may be used “only 

to presume excessive delay,” “not to presume the ultimate issue 

of unconstitutionality.” Id. at 1560 n.10; see also id. at 1561 (“The 

passage of two years creates only a presumption of inordinate 

delay on appeal.”). The court further instructed that to reach the 

ultimate issue, “the other prongs of the Barker test also must be 

addressed.” Id. at 1560 n.10. Indeed, the court stated that a 

defendant ordinarily “must make some showing on the fourth 

factor—prejudice—to establish a due process violation.”5 Id. at 

1559. Harris therefore does not support Bunker’s position that 

delay alone may be presumptively prejudicial. Given that Utah 

law does not recognize the right to a timely appeal and given 

that the cases on which Bunker relies are inapposite, the second 

component of Bunker’s argument—the delay in his appellate 

process—also does not weigh in favor of discerning error, let 

alone structural error.

 

(...continued)

appeal, this court indicated that it is important for defendants 

alleging due process violations to “show how [they have] 

suffered prejudice because of the delays in [their] appeal[s].” Id.

¶ 37.

5. The Harris court did recognize that “delay substantially 

beyond two years, at least in a case that does not warrant a 

lengthier appellate process, will reduce the burden of proof on 

the other three factors necessary to establish a due process 

violation.” Harris v. Champion, 15 F.3d 1538, 1562 (10th Cir. 1994).
State v. Bunker

20160440-CA 12 2019 UT App 118

¶24 In sum, Bunker has not convinced us that the unfortunate 

delay in processing his appeal violated his rights or constituted

structural error. Because there was no error or structural error 

that affected the “very framework” of his appeal, see State v.

Cruz, 2005 UT 45, ¶ 17, 122 P.3d 543, he is not relieved of his 

burden to show how he was prejudiced by the delay in his 

appeal. Bunker has not made that showing here. We therefore 

deny his request that we fashion a remedy for the delay.

CONCLUSION

¶25 Bunker has not established that his rights were violated 

by a delay during his appeal. He also has not shown that there is 

a structural error for which we must presume prejudice, and we 

deny his related request for relief. We accordingly affirm the 

district court’s decision revoking his probation.