Opinion
A-13362
11-03-2021
BRADLEY A. AMOS, Appellant, v. STATE OF ALASKA, Appellee.
Michael L. Barber, Barber Legal Services, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law, although it may be cited for whatever persuasive value it may have. See McCoy v. State, 80 P.3d 757, 764 (Alaska App. 2002).
Appeal from the District Court, Fourth Judicial District, Trial Court No. 4BE-17-00037 MO Bethel, William T. Montgomery, Judge.
Michael L. Barber, Barber Legal Services, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Terisia K. Chleborad, 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.
MEMORANDUM OPINION
HARBISON Judge 1
Bradley A. Amos was convicted, following a bench trial, of two minor offenses for unlawfully taking a musk ox. Prior to the trial, Amos filed a motion to dismiss the charges, contending that the time for trial under Alaska Criminal Rule 45 had run. The trial court denied this motion, and Amos now appeals that decision.
5 Alaska Administrative Code (AAC) 85.050(a)(1) & 5 AAC 92.002 and 5 AAC 92.140 & 5 AAC 92.002.
Having reviewed the record in this case, we agree with Amos that Alaska Criminal Rule 45 (and Alaska Minor Offense Rule 15) require dismissal of the charges against him. We accordingly reverse the judgment in this case.
Background facts and proceedings
Amos was initially charged with two misdemeanor offenses for unlawfully taking a musk ox in February 2017. At Amos's arraignment on April 3, 2017, the trial court announced that the time for trial under Alaska Criminal Rule 45 began running on March 16, 2017 - the date that Amos was served with the charging document - and would expire on July 14, 2017. The court also appointed the Public Defender Agency to represent Amos.
After requesting several continuances, Amos's attorney requested that the case be set for trial, and the trial court scheduled a trial date of October 9, 2017. Then, on October 9, 2017, the State announced its intention to reduce the charges to minor offenses. At the request of Amos's attorney, the court scheduled a hearing to determine whether Amos could continue to be represented by court-appointed counsel for the reduced charges.
The hearing was held on November 29, 2017. During the hearing, the trial court ruled that Amos's court-appointed counsel would continue to represent him on the 2 minor offense charges. Then, the court announced that it was necessary to set a trial date, and Amos's attorney agreed. The court asked when the parties would be available, and the prosecutor responded that he had not yet looked into the availability of the State's witnesses for December. The defense attorney stated that he was about to start a trial, but offered to communicate with the prosecutor and stated that the parties could "email the court with ... availability and the court could just set the date."
The court agreed to the defense attorney's proposal and offered to set the trial date by a scheduling notice. However, the court also scheduled a calendar call hearing in the case, to take place on December 21, 2017, and told the parties that the case could be set for trial "anytime in January," as long as Amos would stipulate to waive Rule 45 time until the trial date. The defense attorney indicated that Amos agreed to the court's proposal.
Due to a scheduling error on the part of the court, the case was not placed on the December 21, 2017 calendar call docket. Instead, the court did not hold a hearing in the case until June 14, 2018. At the June hearing, the court notified the parties that a scheduling oversight had led to the case dropping off the court's calendar. One week after this hearing, Amos moved to dismiss the minor offense charges, arguing that the time for trial had passed.
The trial court denied Amos's motion in a written order. In the order, the court found that, because the parties did not email the court with their availability, "it was not the Court's fault that [Amos's] case was not set for trial but rather it was Amos's fault." The trial court also found that Amos's waiver of time was open-ended-i. e., that Amos agreed to waive Rule 45 time indefinitely. According to the trial court, Amos had the responsibility to demand trial in order to restart the Rule 45 clock after his November 29, 2017 waiver of time. 3
Amos's case proceeded to trial, and the judge subsequently found Amos guilty of the two minor offenses. Amos now appeals, claiming that the time for trial under Alaska Criminal Rule 45 ran before he moved to dismiss the charges on June 21, 2018.
Why we conclude that Alaska Criminal Rule 45 requires dismissal of the charges
Alaska Criminal Rule 45 provides that a defendant must be brought to trial within 120 days of the date the charging document is served on the defendant, and it also provides that certain periods of time are excluded in computing the time for trial.Alaska Minor Offense Rule 15 largely incorporates Criminal Rule 45, but it provides that a defendant charged with a minor offense must be tried within 120 days from the date on which the court receives the defendant's request for trial.
Alaska R. Minor Offense P. 15 ("The right to speedy trial on minor offenses is governed by Criminal Rule 45."); see also Alaska R. Crim. P. 45(c)(6).
In the present case, Amos contends that Criminal Rule 45(c)(1), rather than Minor Offense Rule 15, is the relevant rule for determining when the time for trial commenced in this case. According to Amos, the speedy trial clock began running on March 16, 2017, which was the date he was served with the charging document in this case. The State disagrees, arguing that because the criminal charges against Amos were amended to minor offenses, the speedy trial rule for minor offenses applies to his case. 4 Under the minor offense rule, the speedy trial clock did not begin to run until Amos requested a trial date.
See Alaska R. Minor Offense P. 17(f) (noting that when all criminal charges have been disposed of and the only remaining charges are minor offenses, the minor offense rules apply). But see Alaska R. Minor Offense P. 17(e) (providing that "criminal rules rather than minor offense rules apply when (1) a minor offense charge is joined with a related criminal charge, and (2) a criminal charge is amended to be a minor offense charge").
See Alaska R. Minor Offense P. 15.
Amos first requested a trial before his case was reduced to a minor offense, and on November 29, 2017 (after the charges were reduced), Amos's attorney agreed with the trial court that a trial date was needed. On appeal, the State claims that because Amos did not make a formal request for trial after the charges were reduced, the time for trial had not yet started running.
However, at the November 29, 2017 hearing, the trial court had an extended discussion with the parties about scheduling a trial date and announced its intention to conduct the trial in January. Based on this record, we conclude that Amos demanded a trial at the November 29, 2017 hearing.
Thus, even under the later date provided in the minor offense rule, the speedy trial clock began running no later than November 29, 2017, and more than 120 days elapsed between that date and the date that Amos filed his motion to dismiss. We accordingly need not determine whether Minor Offense Rule 15 or Criminal Rule 45(c)(1) applied to start the speedy trial clock; for purposes of this opinion, we will assume that the minor offense rules applied.
We next consider whether any of the time from November 29, 2017 to the date that Amos filed his motion to dismiss must be excluded from the Rule 45 calculation, either because Amos affirmatively waived time or because subsection (d) of the rule requires the time to be excluded. 5
In its written order, the trial court found that, on November 29, 2017, Amos entered into an open-ended waiver of Rule 45, waiving speedy trial time until the trial date, regardless of when the trial occurred. But this finding is not supported by the record.
The record shows that, at the November 29 hearing, the trial court told Amos's attorney, "[I]f your client's willing to waive Rule 45 time, we can set this trial anytime in January." The defense attorney agreed to this proposal, confirming that Amos would "stipulate to waiver until the date of trial."
We must interpret Amos's November 29, 2017 waiver in the context of the entire record. Viewing the waiver in that manner, we conclude that only the time from November 29, 2017 until January 31, 2018 is excluded from the speedy trial calculation; the trial court's finding that Amos affirmatively waived speedy trial time after the end of January 2018 was incorrect.
Cf. Peterkin v. State, 543 P.2d 418, 424 (Alaska 1975) (holding that open-ended waivers of the time for trial are disfavored and that no criminal case or minor offense case should have the trial date canceled without a new date being set in open court).
We next consider whether Criminal Rule 45(d) requires us to exclude any additional time in computing the time for trial. Under Criminal Rule 45(d)(1) and (2), the "period of delay resulting from other proceedings concerning the defendant" and the "period of delay resulting from an adjournment or continuance granted at the timely request or with the consent of the defendant and the defendant's counsel" are excluded when computing the time for trial. Although the trial court did not specifically cite these provisions in its order, it apparently relied on them when it found that the time for trial had been tolled because "it was not the court's fault that his case was not set for trial [in January] but rather it was Amos's fault." According to the trial court, it was Amos's 6 fault that the case was not set for trial because Amos's attorney suggested on November 29, 2017 that the parties would email the court with dates that they could be available for trial in January, but they apparently did not do this.
In some situations where a defendant asked to remove their case from the trial calendar for an indeterminate period of time in order to allow certain proceedings to occur, both this Court and the Alaska Supreme Court have held that the responsibility for restarting the speedy trial clock fell on the defendant. For example, in Cooksey v. State, the defendant signed a speedy trial waiver, agreeing that the time for trial was waived until a psychiatric evaluation of him could be completed and the case recalendared "pursuant to normal calendaring procedures followed by the Superior Court." The supreme court later concluded that Criminal Rule 45(d)(1) excluded the entire period of the delay occasioned by this request, including delay that occurred after the district attorney and the defense attorney both received a copy of the psychiatric evaluation but did not ask to return the case to the trial calendar.
Cooksey v. State, 524 P.2d 1251, 1254 (Alaska 1974).
Id. at 1259-60.
Similarly, in this Court's unpublished opinion in Lewis v. State, the defendant's case was removed from the trial calendar at the defense attorney's request so that the attorney could attempt to negotiate a diversion agreement. Both the defense attorney and the prosecutor later received notice that Lewis was ineligible for diversion but neither took any further action until six months later, when the defense attorney filed a motion to dismiss the case. We held that "the defense attorney's actions, causing the case to be removed from the trial calendar for purposes of diversion, and the open ended 7 waiver which the defendant gave to accomplish this purpose," resulted in exclusion of the entire period of delay from the speedy trial calculation.
Lewis v. State, 1986 WL 1160926, at * 1 (Alaska App. Apr. 16, 1986) (unpublished).
Id. at *2.
But the facts of the current case are readily distinguishable from the particular circumstances that arose in Cooksey and Lewis. Here, Amos did not provide an open ended waiver of Rule 45 time nor did he cause the case to be removed from the trial calendar. The fact that the parties hoped to be able to agree on a trial date and to then schedule the trial by a calendaring notice did not mean that Amos assumed the entire responsibility of ensuring that the case was set for trial. Indeed, the trial court scheduled a trial call specifically because it wanted to be sure that the case would not "fall off the calendar."
Criminal Rule 45 places upon the court and the State the primary responsibility for assuring defendants receive a speedy trial. Even defense counsel's dilatory treatment of a case does not relieve the court - or the prosecution - of their duties under the Rule. As the supreme court explained m Peterkin v. State, a defendant is not required to demand a trial even when the defendant is aware that the speedy trial clock is running and no trial has been scheduled. This is because "it is the prosecution which initiates a case and which has the power of going forward with it. ... [T]he burden is upon the state to give a speedy trial or be denied the power to prosecute." 8 The supreme court has also instructed that "it is the responsibility of the trial court to develop 'failsafe' procedures to avoid the dismissal of cases pursuant to Criminal Rule 45."
See Peterkin, 543 P.2d at 422 (rejecting the premise that the defense attorney and the prosecution share an equal obligation to inform the court of all relevant developments in a case and to expeditiously demand a speedy trial); see also Westdahl v. State, 592 P.2d 1214, 1217 (Alaska 1979) (reaffirming the holding in Peterkin).
See Peterson v. State, 562 P.2d 1350, 1359-60 (Alaska 1977).
Peterkin, 543 P.2d at 422 (quoting Rutherford v. State, 486 P.2d 946, 950 (Alaska 1971)).
DeMille v. State, 581 P.2d 675, 677-78 (Alaska 1978) (citing Peterkin, 543 P.2d at 424).
Under the circumstances presented here, we conclude that the period of time from November 29, 2017 to January 31, 2018 must be excluded from the Rule 45 calculation. However, after the speedy trial clock resumed on February 1, 2018, Amos's case languished without any action from the parties or the court until June 14, 2018. Because 120 days had elapsed by the time of the June 14 hearing - as well as by the time Amos subsequently filed his motion to dismiss the charges-his speedy trial rights under Criminal Rule 45 and Minor Offense Rule 15 were violated.
Conclusion
We REVERSE the judgment of the district court. We direct the district court to vacate Amos's convictions and enter dismissals in accordance with Alaska Criminal Rule 45(g) and Alaska Minor Offense Rule 11(b)(1). 9