Opinion
A-13621
06-22-2022
JYRMAYNE FLEMING CANTY, Appellant, v. STATE OF ALASKA, Appellee.
Olena Kalytiak Davis, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Kenneth M. Rosenstein, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, Anchorage, Erin B. Marston and Frank A. Pfiffner, Judges. Trial Court No. 3AN-19-04954 CR
Olena Kalytiak Davis, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
Kenneth M. Rosenstein, 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 Terrell, Judges.
SUMMARY DISPOSITION
A jury found Jyrmayne Fleming Canty guilty of third-degree weapons misconduct (felon in possession of a concealable firearm) after the police found him sleeping in a stolen Jeep next to a handgun. Before trial, Canty unsuccessfully asked the superior court to dismiss his case. Canty now appeals, asserting that the court erred in failing to dismiss his case on three alternative grounds.
AS 11.61.200(a)(1).
First, Canty argues that he was entitled to dismissal under Alaska Criminal Rule 45, which requires a defendant to be tried within 120 days of being served with the charging document. According to Canty, because the Rule 45 clock in his case began running on May 20, 2019 when he was arraigned in the district court, his trial should have commenced on or before September 17, 2019 - 120 days later.
But Canty's Rule 45 calculation fails to account for a seven-day continuance requested by his attorney. Under Criminal Rule 45(d), certain periods of time are excluded from the 120-day speedy trial clock, including "[t]he 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." Canty was initially represented by counsel (before he elected to represent himself at trial), and on July 8, 2019, this attorney asked for a one-week continuance to continue plea negotiations. The trial court tolled the speedy trial clock during this one-week period.
Canty argues that he actively objected to counsel's request for a continuance, and that as a result, the speedy trial clock should not have tolled during that period. But nothing in the record of that hearing supports this contention. Accordingly, the 120-day speedy trial clock was properly tolled for seven days. And because Canty's trial began on September 23 - 126 days after his arraignment - the trial court did not err in declining to dismiss Canty's case under Rule 45.
See State v. Jeske, 823 P.2d 6, 9 (Alaska App. 1991) ("When defense counsel has requested or consented to a continuance, a judge setting the date for the defendant's trial is entitled to rely upon the fact that the rule is tolled during that continuance, at least until the judge is affirmatively apprised of the defendant's objection to the continuance. Once it is clear that the defendant has not consented and will not consent to the continuance, Rule 45(d)(2) directs the trial judge to restart the Rule 45 clock. But the time already elapsed must remain excluded from the calculation of the time for trial.").
Second, Canty argues that the trial court should have dismissed his case because his constitutional right to a speedy trial was violated, even if Criminal Rule 45 was not. But as the Alaska Supreme Court has observed, "A considerably longer period [than Rule 45 allows] could elapse before trial without resultant unfairness or injustice to the accused." The 126-day period between Canty's arraignment and trial was not long enough to trigger a presumption of prejudice from pretrial delay. Canty therefore cannot establish a violation of his constitutional speedy trial right.
State v. Clouatre, 516 P.2d 1189, 1191 (Alaska 1973); see also State v. Wright, 404 P.3d 166, 172 (Alaska 2017) ("[Rule 45] has sharply reduced the number of constitutional speedy trial claims asserted in our courts, as the proscriptions of Rule 45 are generally narrower than the limits of the constitutional speedy trial right.").
See Wright, 404 P.3d at 178 (holding that a constitutional speedy trial claim requires a threshold showing that the period of pretrial delay was long enough to be "presumptively prejudicial" (citing Barker v. Wingo, 407 U.S. 514, 530 (1972))); State v. Mouser, 806 P.2d 330, 340 (Alaska App. 1991) (observing that unexplained delays of fourteen months or more are considered presumptively prejudicial).
Finally, Canty contends that the trial court should have dismissed his case because the State failed to turn over certain discovery materials, including video footage of his arrest and his recorded admissions to a detective, until just prior to trial. Canty asserts that he was unfairly forced to choose between forgoing his right to a speedy trial or proceeding to trial without reviewing discovery.
But our case law generally presumes that a continuance is an adequate remedy for late-arriving discovery unless a defendant shows that the State acted in bad faith or articulates a plausible theory of prejudice that warrants a greater sanction. The trial court here found that the State's delay in disclosure was inadvertent, and Canty does not appear to challenge that finding.
See Bostic v. State, 805 P.2d 344, 348 (Alaska 1991); Adams v. State, 359 P.3d 990, 995 (Alaska App. 2015); see also Harris v. State, 195 P.3d 161, 174 (Alaska App. 2008) (recognizing that "even when there is a clear violation of the discovery rules, a judge should not use that discovery violation as a basis for granting judgement to the non-offending party, or as a basis for excluding crucial evidence (i.e., evidence so important that its exclusion will essentially decide a central issue in the litigation one way or the other), unless the violation was 'willful'").
Additionally, Canty refused the continuances offered to him, declaring on a Friday that he was ready for trial the following Monday despite the fact that the State had only provided the missing discovery the previous day. Canty did not seek exclusion of the evidence, and he has not articulated any plausible manner in which his trial strategy could have been prejudiced by the State's late disclosure. Under these circumstances, we cannot conclude that the trial court abused its discretion in declining to dismiss Canty's case and instead offering Canty a continuance.
That same Friday, Canty also elected to dismiss his attorney and proceed to trial pro se. Canty declined a continuance on Monday, the first day of trial, even though he had apparently not received any of the discovery from his former attorney by then.
The judgment of the superior court is AFFIRMED.