Opinion
A-13560
07-13-2022
KEVIN EDWARD VANKLEECK, Appellant, v. STATE OF ALASKA, Appellee.
Jay A. Hochberg, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Madison M. Mitchell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Kenai, Trial Court No. 3KN-18-01128 CR Jennifer K. Wells, Judge.
Jay A. Hochberg, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Madison M. Mitchell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
SUMMARY DISPOSITION
Kevin Edward VanKleeck was convicted, following a jury trial, of first-degree failure to stop at the direction of a peace officer and driving while license revoked. He also pleaded guilty to violating his conditions of release. On appeal, VanKleeck challenges the superior court's decision to grant the State's request for a two-month continuance due to a witness's unavailability, tolling his speedy trial right under Alaska Criminal Rule 45. Based on the record before us, we affirm the judgment of the superior court.
AS 28.35.182(a)(1) and AS 28.15.291(a)(1), respectively.
AS 11.56.757(a).
During the trial court proceedings, VanKleeck objected to the State's request for a continuance, contending that the State had not exercised due diligence to secure the witness's testimony. In response, the superior court conducted an evidentiary hearing. During this hearing, the witness testified under oath and was questioned by the lawyers and the court.
Following the hearing, the superior court granted the State's request for a continuance pursuant to Criminal Rule 45(d)(3)(A). This subsection allows a court to toll the speedy trial clock when the State makes a timely request for a continuance due to the unavailability of material evidence - as long as the State has exercised due diligence in obtaining the evidence and there are reasonable grounds to believe the evidence will be available at a later date.
On appeal, VanKleeck does not challenge the superior court's findings that the witness was material, that she was unavailable, and that she would be available at a later date. Rather, VanKleeck argues that the State's continuance request was untimely, because while the State knew throughout the pendency of the case that the witness would be out of state during the scheduled trial dates, it waited until the eve of trial to request a continuance. And he argues that the State failed to exercise due diligence in securing the witness's testimony because the State did not serve her with an out-of-state subpoena even though it knew she would not be in Alaska at the time of the trial.
But the superior court found that the witness's unavailability was not due to her planned absence from Alaska that the State had previously anticipated. Instead, the court found that the witness was unavailable during the scheduled trial week due to her father's recent death and upcoming funeral, and that she would be unavailable the following month because she needed to help her brother with medical treatment in Germany. The court found that the witness was willing to fly back to Alaska during her planned absence from the state in order to testify, but that she could not do so for two months because of these unexpected family obligations.
The superior court noted, and we agree, that the prosecutor should have informed the court of the exact date he became aware of the witness's family obligations, as this information is important in assessing the timeliness of the State's request for a continuance. But VanKleeck's attorney never asked the witness to clarify this, nor did he seek to question the State's paralegal or the prosecutor about the timing and extent of their efforts to obtain the witness's testimony.
The court's findings are supported by the witness's limited telephonic testimony, as well as by the unchallenged representations of the prosecutor, and are therefore not clearly erroneous. We accordingly conclude that the superior court did not abuse its discretion in granting the continuance and tolling the speedy trial clock under Rule 45.
See Odekirk v. State, 648 P.2d 1039, 1042-43 (Alaska App. 1982).
See Mullins v. State, 608 P.2d 764, 767 (Alaska 1980).
The judgment of the superior court is AFFIRMED.