Opinion
Court of Appeals No. A-10873 Trial Court No. 4BE-09-879 CR No. 5925
03-06-2013
JOHN ANDREW KARELS JR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Laurence Blakely, Mendel & Associates, (briefs), and Kelly R. Taylor, Assistant Public Defender, and Quinlan Steiner, Public Defender, (oral argument), Anchorage, for the Appellant. W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
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 precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the District Court, Fourth Judicial District, Bethel, Dennis P. Cummings, Judge, and Patty C. Burley, Magistrate.
Appearances: Laurence Blakely, Mendel & Associates, (briefs), and Kelly R. Taylor, Assistant Public Defender, and Quinlan Steiner, Public Defender, (oral argument), Anchorage, for the Appellant. W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
BOLGER, Judge, dissenting.
John Andrew Karels Jr. was charged with driving under the influence (DUI) and driving without a valid license. He ultimately pled guilty, reserving his right to appeal whether the trial court erroneously tolled his right to a speedy trial under Criminal Rule 45 for approximately thirty-five days. We affirm Karels's conviction because we conclude the trial court did not abuse its discretion in tolling his speedy trial time during the period in question.
Background
Karels caused a four-vehicle collision when he passed out while driving in Bethel. His blood alcohol level was .230 percent. The State charged Karels with DUI and driving without a valid license.
After a number of continuances for various reasons, Karels filed a motion to dismiss his charges for violation of his right to a speedy trial under Criminal Rule 45. In arguing that the time to bring him to trial had expired, Karels asserted the time from March 3 to April 7 should not have been tolled because the State had not provided discovery and for this reason he had not been prepared for trial on March 3. After briefing and argument, District Court Judge Dennis P. Cummings denied Karels's motion.
Judge Cummings found that Karels, on March 3, was not ready for trial because on that date, he had told the magistrate that he wanted to wait for the State to provide discovery. Judge Cummings then found that because Karels was not ready for trial, the case had been properly continued and Rule 45 tolled. After Judge Cummings denied Karels's motion to dismiss, the parties entered into a Cooksey plea agreement, preserving the issue of whether the trial court erred in tolling Rule 45 from March 3 to April 7.
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Discussion
At the March 3 calendar call, the question before the court was whether the parties were ready for trial. Magistrate Patty C. Burley asked Karels's attorney if he was ready for trial, and he said he was not ready for trial. He explained that he could not go to trial because he did not have discovery from the State. The magistrate was faced with two choices: she could continue the case, or she could set it for trial. Setting the case for trial in light of Karels's announcement that he was not ready for trial would have potentially led to post-trial litigation. Magistrate Burley decided to continue calendar call, tolling the speedy trial deadline for Karels's trial.
Although Karels did not request a continuance, he clearly informed the court he was not ready for trial. The trial court could reasonably interpret Karels's assertion that he could not go to trial without discovery as an implicit request for a continuance.
Gladden v. State, 153 P.3d 1028, 1030 (Alaska App. 2007) (by failing to hire an attorney while demanding representation, Gladden impliedly waived his right to counsel).
Criminal Rule 45 sets a time limit for bringing a criminal defendant to trial. If the defendant is not brought to trial within that time limit, the charges must be dismissed. Under Criminal Rule 45(d), the court can toll the Rule 45 speedy trial time for several reasons, including "for good cause."
Alaska R. Crim. P. 45(g).
Alaska R. Crim. P. 45(d)(7).
By telling the court he was not ready for trial but also declining to request a continuance, Karels placed the court in the position of either forcing him to trial before he was ready or delaying his trial so he could obtain the discovery he desired. We conclude that under these circumstances, the trial court did not abuse its discretion in continuing the case and tolling the running of Criminal Rule 45.
Conclusion
The judgment of the district court is AFFIRMED. MANNHEIMER, Judge, concurring.
There are two core questions presented in this case.
The first is whether a trial court can properly employ the "good cause" provision of Alaska's speedy trial rule, Criminal Rule 45(d)(7), to extend the time for bringing a defendant to trial when (a) the defense attorney declares that they are not ready for trial, but (b) the attorney refuses to affirmatively ask for a continuance of the trial.
For the reasons explained in this concurrence, I conclude that the answer to this question is "yes".
My answer to this first question raises yet another question: If the defense attorney's unreadiness for trial arises from the government's failure to fulfill its pre-trial disclosure obligations under Criminal Rule 16(b), is there still "good cause" for extending the time under Rule 45(d)(7)?
This is a more difficult question. One might plausibly argue that, in such circumstances, the government should be charged with the extra time that the defense attorney needs to prepare for trial — even if this means that the allotted time for bringing the defendant to trial will expire, and the case will be dismissed with prejudice under Criminal Rule 45(g). But for the reasons explained in this concurrence, I conclude that Rule 45 was not intended to be a mechanism for enforcing the State's discovery obligations under Rule 16.
I therefore agree with Judge Coats that the prosecution against Karels should not be dismissed under Criminal Rule 45(g).
Underlying facts
In mid-November 2009, John Karels was arraigned and served with a complaint charging him with driving under the influence and driving without a license. This event initiated the running of the speedy trial "clock" under Criminal Rule 45.
See Criminal Rule 45(c)(1).
Karels's case was set for a calendar call in early January 2010, but Karels failed to appear in court, so a bench warrant was issued for his arrest. Karels was arrested on that warrant toward the end of January, and the district court scheduled another calendar call for February 3, 2010.
During the ensuing two months, at three different court hearings — beginning with the calendar call on February 3rd, and then at follow-up calendar calls on March 3rd and April 7th — the parties informed the court that the State had failed to make pre-trial disclosure to the defense as required by Criminal Rule 16. The State's lengthy failure to make discovery led to three rulings by the district court regarding the running of the speedy trial clock under Rule 45 — rulings that were facially inconsistent.
The first time the State announced that discovery was not complete (at the February 3rd calendar call), the district court scheduled another calendar call for March 3rd, and the court ordered that the delay be charged against the State.
At the calendar call on March 3rd, Karels's defense attorney declared that he was not ready for trial because the State still had not made discovery. But when the district court asked the defense attorney if he was requesting a delay of Karels's trial because of this lack of discovery, the defense declared that he and his client were not seeking a continuance of the trial. The defense attorney's apparent reason for refusing to ask for a continuance of the trial is that, had the defense attorney made such a request, this would have tolled the running of the Rule 45 speedy trial clock. See Criminal Rule 45(d)(2).
Even though the defense attorney refused to ask for a continuance, the district court delayed the trial anyway. The court ruled that the defense attorney, by declaring himself unready for trial, was implicitly requesting a continuance of the trial. Accordingly, the district court scheduled a new calendar call for April 7th, and the court ruled that this delay would be charged against the defendant for Rule 45 purposes.
Five weeks later, at the calendar call on April 7th, the prosecutor told the court that discovery had been initiated but was still not complete. This time, the district court took affirmative action to enforce discovery: the court scheduled a follow-up hearing for April 26th, and the court ordered the prosecutor to serve subpoenas on the two investigating officers, directing the officers to appear at the April 26th hearing and to bring the discovery materials with them.
The court's tactic worked. The day after the April 7th calendar call, the prosecutor notified Karels's defense attorney that the missing discovery materials were available. Karels's attorney picked up these materials on April 9th.
On April 30th, Karels's attorney filed a motion to dismiss the charges against Karels under Criminal Rule 45(g), based on the assertion that the State's time limit for bringing Karels to trial had expired in mid-April. The trial court denied this motion, the prosecution went forward, and Karels ultimately pleaded guilty to the charges — contingent on his ability to challenge his convictions on appeal by arguing that the State failed to bring him to trial within the time limits of Rule 45.
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974) (allowing a defendant to plead guilty to a criminal charge but still preserve the right to pursue a dispositive claim on appeal).
The issues presented on appeal
All three members of this Court agree that the success or failure of Karels's speedy trial claim hinges on whether the district court acted properly when it charged Karels with the 35-day delay between the calendar call on March 3rd (when the defense attorney announced that he was not ready for trial because of the State's failure to make discovery) and the calendar call on April 7th.
In his lead opinion, Judge Coats concludes that the district court's action was justified under Criminal Rule 45(d)(7) — the subsection that allows a court to toll the running of the speedy trial clock "for [any] good cause" not listed in subsections (d)(1) through (d)(6).
Judge Bolger dissents, arguing that the "good cause" provision of subsection (d)(7) must be construed narrowly, so that it does not become a routine mechanism for avoiding the strictures of Rule 45. Judge Bolger particularly relies on the supreme court's decision in Peterkin v. State, 543 P.2d 418, 423 (Alaska 1975) — where the court indicated that subsection (d)(7) should be invoked only when a situation is "unique [or] unforeseen", and not governed by one of the other six subsections of Rule 45(d).
See Peterkin v. State, 543 P.2d 418, 423 (Alaska 1975); Keller v. State, 84 P.3d 1010, 1017 (Alaska App. 2004) (concurring opinion of Judge Mannheimer).
Judge Bolger notes that subsection (d)(2) of Rule 45 directly addresses the question of whether a continuance should be charged against the defendant. Subsection (d)(2) states that the speedy trial clock is tolled when a continuance is granted at the request of the defense (and the trial court agrees that the postponement is in the interest of justice).
But in the present case, as I have already explained, Karels's attorney expressly refused to ask for a continuance of the trial — even though the attorney declared himself unready for trial. Because Karels's attorney made no request for a continuance, Judge Bolger concludes that the district court had no authority to delay the trial and charge the delay against the defendant. Instead, Judge Bolger contends, the district court should have called the defense attorney's bluff — ordering the trial "to begin without delay", despite the fact that the defense attorney declared that he was not ready to proceed.
As I am about to explain, I agree with Judge Coats that the "good cause" provision of subsection (d)(7) does indeed apply to the problematic situation presented in this case. But this leaves one more issue.
Judge Coats's analysis of this case implicitly rests on the premise that the district court could properly invoke subsection (d)(7) to extend the time for bringing Karels to trial even though it was the State's fault that Karels's attorney was not ready for trial. Judge Coats's opinion does not affirmatively address this issue, but I believe that the parties are entitled to an express acknowledgement of this issue, and to a resolution of it.
Does the "good cause" provision of Criminal Rule 45(d)(7) apply to the circumstances presented here?
Alaska Criminal Rule 45 was designed to ensure that there is an ascertainable deadline for bringing criminal charges to trial. And I agree with Judge Bolger that subsection (d)(7) — the "good cause" provision of the rule — should be construed narrowly, so that it does not undermine the basic policies behind Rule 45.
But Judge Bolger's dissent in this case rests on a more specific assertion about the proper interpretation of subsection (d)(7). Judge Bolger notes that subsection (d)(2) of Criminal Rule 45 explicitly tolls the running of the speedy trial clock for continuances granted at the request of the defense. From this, Judge Bolger concludes that the running of Rule 45 should not be tolled — and the "good cause" provision of subsection (d)(7) should not be invoked — for a continuance that does not arise from an explicit defense request (assuming that the continuance is not covered by any of the other five issue-specific subsections of Criminal Rule 45(d).)
This position is inconsistent with this Court's decision in Keller v. State, 84 P.3d 1010 (Alaska App. 2004). In Keller, this Court explicitly rejected the argument that the "good cause" provision of Rule 45(d)(7) can never apply to a period of delay that is outside of the defendant's control, or that is not attributable to the defendant's act or request. 84 P.3d at 1013-14. Based on Keller, I believe that Judge Bolger's dissent rests on an improperly narrow interpretation of Rule 45(d)(7).
Judge Bolger also relies on our supreme court's statement in Peterkin that subsection (d)(7) should be invoked only when a situation is "unique [or] unforeseen". 543 P.2d at 423. One might argue that the State's failure to comply with its pre-trial disclosure obligations under Criminal Rule 16 is neither unique nor unforeseeable. But as this Court's decision in Keller demonstrates, we have not interpreted the phrase "unique [or] unforeseen" to be limited to occurrences that are utterly unexpected and that could never be anticipated.
In Keller, we employed Rule 45(d)(7) to extend the time for bringing a defendant to trial when all three of the available judges in that venue site (Bethel) disqualified themselves because of their close association with the defendant's father. One could certainly argue that such an event was neither unique nor unforeseeable. Judges are required to disqualify themselves when they can not be fair, or when reasonable people would question their ability to be fair. And there are many locales within Alaska with only one or two local judges. Thus, one might plausibly argue that it is neither "unique" nor "unforeseeable" that all of the judges in a small court location would need to disqualify themselves. Nevertheless, we held in Keller that the running of the speedy trial clock would be tolled under Rule 45(d)(7) "whenever ... judicial recusals make it necessary to assign a [criminal] case to a judge from another location". 84 P.3d at 1015.
See Keller, 84 P.3d at 1010, 1015.
See AS 22.20.020(a)(9) and Alaska Judicial Canon 3E(1).
Moreover, I believe that what happened in Karels's case was unforeseeable — at least in the Keller sense of atypical and unexpected. Karels's defense attorney declared that he was not ready for trial, and the defense attorney never asserted that his client wanted him to go to trial despite being unprepared. Yet, at the same time, the defense attorney refused to ask for a continuance.
In effect, the defense attorney confronted the district court with the choice of (a) ordering a delay of Karels's trial without the defense attorney's acquiescence or (b) ordering the prompt commencement of Karels's trial despite the defense attorney's announcement that he was not ready.
In his dissent, Judge Bolger argues that the district court should have pursued the second alternative — ordering the prompt commencement of Karels's trial. But the district court could reasonably foresee that this course of action would lead to a post-trial attack on any guilty verdict — an assertion of ineffective assistance of counsel, in the form of either a motion for a new trial or a petition for post-conviction relief.
This is not a situation where Karels and his attorney affirmatively told the district court that they insisted on a speedy trial even if that meant litigating the case without foreknowledge of the State's evidence. Nor is this a situation where Karels's attorney told the court that he (the attorney) was not ready for trial, but that his client insisted on going to trial immediately anyway. If the district court had relied on subsection (d)(7) to order a continuance and charge it against the defense under either of these circumstances, the court's action would present more difficult problems, and I do not intend to express any opinion on the proper resolution of those problems.
But here, Karels's attorney told the court that he was not prepared for trial, and neither the defense attorney nor Karels himself told the court that they wished to go to trial anyway. Instead, the defense attorney told the court that he could not go to trial until the State made discovery under Criminal Rule 16, but the defense attorney then refused to ask the court to delay the trial so that discovery could be made.
Here is a transcription of the relevant portion of the court proceedings of March 3rd:
The Court: [I call State v. Karels, File Number] 4BE-09-879 CR. Mr. Karels is present. [To the defense attorney:] Mr. Case?
Defense Attorney: [There is] no discovery in this case.
The Court: Well, Rule 45 is about to run out, so are you ready to go without it?
(whispered conversation)
Defense Attorney: We're not ready to go. We'll file a motion to dismiss at the appropriate time. We'd like to know the Court's appraisal of when Rule 45 does expire.
The Court: The 19th of March. [i.e., in 16 days]
Defense Attorney: Okay.
The Court: So if you're asking for [a] continuance, I have to toll Rule 45.
Defense Attorney: That's not our view of it, Your Honor.
The Court: I understand [that it will be] over objection, but ... are you asking for a continuance, or are you asking me to [set the case] for trial?
Defense Attorney: I'm asking the State to provide discovery [to me]; that's what I'm asking. [And] if the State cannot provide discovery, [then] the State can explain why it can't provide discovery, and that's [how] we ascertain whether Rule 45 runs or tolls. I mean, if the State has [the] discovery, ... that's a different story, and we'll take it from there.
. . .
The Court: I'm asking a simple question, Mr. Case.
. . .
Defense Attorney: Okay. Well, we know there's some discovery to be had; [and] we know it hasn't been produced; [and] we can't go to trial without that discovery. ... So we ask that it be produced. We need it. And other than that, we'd ask for the Court's ruling.
The Court: I'm going to continue this [matter] at your request, [and] Rule 45 will toll.
Defense Attorney: And I'll note that it's not per my request, but that seems to be the ...
The Court: You won't give me a yes or no answer. You either want to go to trial or you don't want to go to trial.
And if you don't want to go to trial, what do you want me to do with this case?
Defense Attorney: I want you to order the State to produce the discovery.
The Court: There's a motion to compel [discovery] that can be utilized.
Defense Attorney: We don't need a motion to compel ... if [the discovery obligation] is already in the [rule] ...
The Court: [This case is] continued until April 7th. [The running of] Rule 45 will toll, over objection.
The defense attorney's apparent reason for declining to seek any relief from the district court was that, if the defense attorney sought a continuance or requested the court's assistance in enforcing the State's obligations under Rule 16, the running of the speedy trial clock would be tolled.
(See Rule 45(d)(2), which declares that the speedy trial clock is tolled when a continuance is granted at the request of the defense, and Rule 45(d)(1), which declares that the clock is tolled for periods of delay resulting from "other proceedings concerning the defendant" — a phrase which this Court has interpreted to include any motion to compel discovery which requires court action. See Drake v. State, 899 P.2d 1385, 1388 (Alaska App. 1995).)
Thus, the defense attorney adopted a tactic designed to place the district court in the position of having to order a continuance without the defense attorney's acquiescence, and with no defense motion pending. As the defense attorney candidly told the district court, he intended to wait to see whether the State had any justification for the delay in providing discovery. The defense attorney explained that, if the State had no justification for the delay, then he intended to file a motion to dismiss the charges against Karels pursuant to Criminal Rule 45(g) — under the theory that the delay occasioned by the State's failure to make discovery should then be retroactively charged against the State.
The district court properly rejected the defense attorney's suggested approach to the speedy trial calculation. In essence, the defense attorney was asking the district court to delay the trial, and then make a future decision about whether this delay should be charged to the State — a decision that would be based on the court's resolution of yet-to-be-litigated issues of fact. Both the Alaska Supreme Court and this Court have repeatedly rejected interpretations of Rule 45 that "would leave Rule 45 calculations unsettled and tentative until the day of trial." State v. Jeske, 823 P.2d 6, 9-10 (Alaska App. 1991). For this reason, I conclude that the district court correctly rejected the defense suggestion to delay Karels's trial and then decide later whether the delay meant that the case should be dismissed under Rule 45(g).
See also Coffey v. State, 585 P.2d 514, 520-21 (Alaska 1978); Bobby v. State, 950 P.2d 135, 138-39 (Alaska App. 1997).
But this leaves the question of what the district court should have done, given the possibility that the lack of discovery was the State's fault.
If the defense attorney's unreadiness for trial had been attributable to some other reason, and if the attorney had engaged in the same tactic of declaring himself unready for trial but refusing to expressly ask for a continuance, I do not think that this Court would be split over the proper resolution of this appeal. We would simply affirm the trial court's decision, either under the theory adopted by the trial court — i.e., that the defense attorney was implicitly asking for a continuance, thus tolling the speedy trial clock under Rule 45(d)(2) — or under the theory that the defense attorney's unreadiness for trial constituted good cause for tolling the speedy trial clock under Rule 45(d)(7).
The only aspect of this situation that gives the defense attorney's position any force is (a) the fact that the defense attorney's unreadiness for trial was attributable to the State's failure to make discovery, and (b) there was apparently no justification for the State's failure to make discovery (although this issue had not yet been litigated).
Under these circumstances, could the district court properly invoke Rule 45(d)(7) and charge the delay of trial against the defendant? Or was the district court required to hold a hearing to determine the reason why the State had failed to make discovery — and then to charge the delay against the State if the State had no good reason for failing to comply with its discovery obligations?
The underlying policy question presented here is whether a defendant can use the "dismissal with prejudice" provision of Criminal Rule 45(g) as an enforcement mechanism to punish the State's failure to comply with its pre-trial disclosure obligations under Criminal Rule 16. I conclude that the answer is "no".
The Alaska Supreme Court has repeatedly declared that when the government fails to make timely disclosure of its evidence, suppression of that evidence is normally not a permissible remedy. (See our discussion of this point in Friedmann v. State, 172 P.3d 831, 833-34 (Alaska App. 2007).) When the State has failed to disclose evidence in a timely fashion, the court should normally delay the defendant's trial to allow the defendant to prepare for the now-disclosed evidence. Or, if the trial has already begun and the defendant has been prejudiced by the non-disclosure, a court should declare a mistrial and allow the defendant to begin the trial anew.
See Bostic v. State, 805 P.2d 344, 348 (Alaska 1991); Williams v. State, 600 P.2d 741, 742 n. 3 (Alaska 1979); Stevens v. State, 582 P.2d 621, 624 n. 9 (Alaska 1978); Des Jardins v. State, 551 P.2d 181, 187 (Alaska 1976).
See Bostic v. State, 805 P.2d 344, 348-49 (Alaska 1991), as interpreted by this Court in Jurco v. State, 825 P.2d 909, 916-17 (Alaska App. 1992) (if the State's non-disclosure comes to light during the trial, and the defendant articulates one or more plausible ways in which the defense case was prejudiced by the State's tardy disclosure of the information, the defendant is entitled to a mistrial unless the State affirmatively proves that the defendant was not prejudiced in the manner claimed).
If suppression of evidence is normally not an appropriate remedy for the government's failure to make timely disclosure of its case, I believe it follows that complete dismissal of the case is likewise not an appropriate remedy. Thus, even when the defense attorney's unreadiness for trial is attributable to the government's failure to make pre-trial discovery, the remedy should be a delay of the trial, not a dismissal of the charges.
If, as in Karels's case, the defense attorney refuses to request a delay of the trial (while at the same time proclaiming himself unready to go to trial), a judge can properly invoke the "good cause" provision of Rule 45(d)(7) and charge the delay against the defendant, so that the speedy trial clock does not run out while the discovery problem is being resolved.
I readily admit that this is not a perfect resolution of this problem — because it gives prosecutors and police the implicit power to delay a defendant's trial by the simple expedient of neglecting or refusing to make pre-trial discovery. Although delays in criminal litigation may sometimes favor the defendant, there are also instances where a delay will favor the government. In particular, if the defendant remains jailed pending trial, cut off from work and from family, delays will put increasing pressure on the defendant to accept a negotiated plea on terms favorable to the government.
But as I have explained, I believe that the alternate resolution of this problem — a resolution that would lead to dismissal of criminal cases under Criminal Rule 45(g) — is inconsistent with prior Alaska appellate decisions dealing with discovery violations by the government. Neither suppression of evidence nor dismissal of cases is normally available as a remedy when the government violates its duty of pre-trial disclosure.
Moreover, I note that a trial court has other methods for policing the government's duty of pre-trial disclosure. In particular, the court can impose monetary sanctions on a prosecutor and, in extreme cases, can issue contempt citations against the prosecutor and/or the law enforcement agency involved in the case.
I therefore agree with Judge Coats that the district court acted properly in Karels's case when it invoked the "good cause" provision of Criminal Rule 45(d)(7) to extend the time for bringing Karels to trial, and I conclude that the district court properly charged the additional time against Karels.
Although I am voting to uphold the district court's action, I urge trial courts to pay close attention when it appears that the government might be unreasonably failing to comply with its pre-trial disclosure obligations under Criminal Rule 16. I hope that courts will be willing to take appropriate action against prosecutors and police agencies if, indeed, the government is unreasonably delaying or denying discovery. BOLGER, Judge, dissenting.
At the March 3 hearing, Karel's defense counsel stated that he was not prepared to go to trial because he had not received discovery from the prosecutor. Defense counsel stated that his client was not requesting a continuance, but the magistrate continued the case, noting counsel's objection. Based on these circumstances, the lead opinion concludes that the resulting delay extended the 120-day deadline for trial "for good cause" under Criminal Rule 45(d)(7).
When we interpret this rule, we should give effect to all of its provisions, "so that no part will be inoperative or superfluous, void or insignificant." Applying this principle, the Alaska Supreme Court has interpreted the "good cause" exception in Rule 45 to apply to situations that are "unique [or] unforeseen." This interpretation recognizes that most of the routine reasons for pretrial delay are specifically provided in the other subsections of Rule 45(d). So when an unforeseen circumstance causes pretrial delay — such as an unforeseen recusal of all of the trial judges in one location — it does no violence to the purpose of the Rule to find good cause.
Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough, 273 P.3d 1128, 1139 (Alaska 2012) (quoting 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes & Statutory Construction § 46:6, at 231-42 (7th ed. 2007)).
Peterkin v. State, 543 P.2d 418, 423 (Alaska 1975).
See Keller v. State, 84 P.3d 1010, 1014-15 (Alaska App. 2004).
But an overly broad construction of this subsection would defeat the policy of the Rule. For example, if we now extend the Rule 45 deadline "for good cause" every time an attorney indicates that he or she is not prepared to go to trial, then the more rigorous provisions of Rule 45(d)(2) and (d)(3) are completely unnecessary.
Id. at 1017 (Mannheimer, J., concurring).
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In my opinion, the more specific provisions of Rule 45(d)(2) should apply to this situation. Under that subsection, the delay based on a defense request is excluded only if the defendant and his counsel request or agree to a continuance. In this case, defense counsel explicitly stated that he and his client were not requesting a continuance. In response, the magistrate could have simply scheduled the trial to begin without delay. In any event, in the absence of a defense request, the delay that was ordered by the magistrate should not be excluded from the Rule 45 period.
My interpretation is not dependent on the variables suggested by the concurrence. I would decide the case the same way whether the defendant's lack of preparation was due to a lack of discovery or mere indolence. If the "good cause" exception is used to excuse a truly routine delay, like a lack of preparation, then this exception may swallow the speedy trial rule.