☢ test - Í

repeated correspondence from a defendant complaining that an appeal is not being pursued, merely repeatedly calling the [defendant’s] attorney, as was apparently done here, is not sufficient to satisfy the State’s obligation. Although much of the blame for the delay lies with Threatt’s first appellate counsel and with the State , the trial court also has a responsibility to supervise its appointed attorneys and to monitor its own calendar. ” Accord, Simmons v. State , 304 Ga.App. 39, 696 S.E.2d 75 (May 11, 2010) (PDSTC’s failure to replace trial counsel who died weighed against State). Defendant’s assertion of right : “Threatt made numerous attempts to resolve his appeal. The record is replete with the letters and motions he wrote over the years to his lawyer, the district attorney, the superior court judge, the superior court clerk, this court, and this court’s clerk, alleging his innocence, requesting a new trial and new counsel, and inquiring about the status of his case and how to proceed further. Threatt clearly asserted his right to a prompt disposition of his appeal, but was ignored.” Prejudice: “Threatt’s brief poses the question, ‘ at what point must [defendant] prove actual prejudice?’ That point was at the hearing on his motion to dismiss, and he failed to carry his burden. Regarding the prejudice factor, Threatt first alleges that several of his witnesses are missing or dead. The fact that a witness has died or disappeared, standing alone, is not sufficient to show prejudice at the retrial. There must be some correlation between the witnesses’ death or unavailability and the delay, and Threatt must show that the missing witness would have supplied material evidence for the defense. State v. Allgood , 252 Ga.App. 638, 640(4), 556 S.E.2d 857 (2001). This he has not done.” Death of witness shortly after conviction is not a prejudice attributable to the later, lengthy delay. “Threatt’s other allegation is merely a generalized statement that witnesses have died, many witnesses are unavailable, and all of the witnesses’ memories have faded. He has established neither the substance of these witnesses’ testimony nor their admissibility. To the extent that he is claiming that one or more of these witnesses would testify that Pike admitted to them that he was the one who shot the victim, Threatt has not shown why this testimony was not cumulative of other witnesses’ testimony who are available to testify. Moreover, although he also alleges that some audio- and videotaped evidence is now missing from the evidence room, he has not shown why the original trial transcript of the tapes’ contents is insufficient to compensate for the missing evidence. Threatt has merely argued theoretical prejudice because of possible conflicts between the contents of the missing tapes and the trial transcripts, not actual prejudice and conflicts. He also alleges that one of his key defense witnesses, who would testify that Threatt was not present when the shooting occurred, is missing and her location was unknown at the time of the motion hearing. Nothing in the record, however, shows that the appeal delay made Threatt unable to locate the witness, who did not testify at the first trial and may not have been available then, either. Therefore, we do not find that Threatt has shown the required prejudice in regard to this witness.” Chatman v. Mancill, 280 Ga. 253, 626 S.E.2d 102 (January 30, 2006). Applies Barker speedy trial framework to issues of speedy appeal/post-conviction relief. So considered, “we conclude that the prejudice necessary to establish a due process violation based on post-conviction direct appeal delay is prejudice to the ability of the defendant to assert his arguments on appeal and, should it be established that the appeal was prejudiced, whether the delay prejudiced the defendant’s defenses in the event of retrial or resentencing. [Cits.] In assessing prejudice, we agree with Mathis v. Hood, 937 F.2d 790, 794 (2 nd Cir., 1991) that the appropriate test is one ‘akin to the second prong of Strickland [ v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]: appellate delay is prejudicial when there is a reasonable probability that, but for the delay, the result of the appeal would have been different. A reasonable probability “is a probability sufficient to undermine confidence in the outcome. ”’ [Cit.]” Habeas court erred in finding such prejudice here, however, based on hundreds of unrecorded bench conferences; Supreme Court’s thorough review of voluminous record concludes that those conferences were clearly predominated by scheduling and other logistical issues; off-record conferences were immediately placed on record; or were otherwise waived or clearly non-prejudicial. Grant of petition reversed. Accord, Cail v. State , 287 Ga.App. 547, 652 S.E.2d 190 (September 13, 2007) (11-year delay in deciding motion for new trial did not mandate reversal absent showing as required by language bolded above); Browning v. State , 283 Ga. 528, 661 S.E.2d 552 (May 19, 2008) (ten-year delay largely caused by defendant’s own inaction after counsel told him he could find no reversible error and would stop work on matter; no prejudice shown); Williams v. State , 293 Ga.App. 193, 666 S.E.2d 703 (July 18, 2008) (defendant’s “argument that because of the delay, his trial counsel could not be found to testify at the motion-for-new-trial hearing, has no basis in the evidentiary record,” and thus does not show prejudice); Middlebrooks v. State , 294 Ga.App. 410, 669 S.E.2d 200 (October 23, 2008) (seven-year delay in processing appeal); Whitaker v. State , 291 Ga. 139, 728 S.E.2d 209 (May 29, 2012) (no prejudice shown despite 10-year delay); Glover v. State , 291 Ga. 152, 728 S.E.2d 221 (May 29, 2012) (no prejudice despite 11-year delay); Simmons v. State , 291 Ga. 664, 732 S.E.2d 65 (October 1, 2012) (22 year delay); Leslie v. State , 292 Ga. 368, 738 S.E.2d 42 (February 4, 2013) (approximately 12-year delay); Brinkley v. State , 320 Ga.App. 275, 739 S.E.2d 703 (March 11, 2013) (10-year delay); Jones v. State , 322 Ga.App. 310, 744 S.E.2d 830 (June 18, 2013) (remanded for application of test).