Opinion
Court of Appeals No. A-10292.
October 20, 2010.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge. Trial Court No. 4FA-06-3275 CR.
Jill Wittenbrader, Contract Attorney, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Alaska Criminal Rule 45 sets the time limit for bringing a defendant to trial. If the defendant is not tried within the period set by the rule then the charges must be dismissed with prejudice. In this appeal, John R. Peterson contends that the superior court should have granted his motion to dismiss based on this rule.
See Alaska R. Crim. P. 45(b).
See Alaska R. Crim. P. 45(g).
Criminal Rule 45(d) lists various periods that are excluded from the speedy trial calculation. In this case, Peterson's trial date was extended by his numerous requests for continuances, his pretrial motions, and several missed court appearances. The parties generally agree that these delays should be excluded under the rule. This opinion focuses on two portions of the proceedings where the parties disagree about the effect of these exclusions.
Background
The parties agree that eighty-two days had elapsed under the rule by November 1, 2007, shortly after the trial judge granted Peterson's motion attacking the sufficiency of the instructions to the grand jury. The judge did not dismiss the indictment; however, he ordered that Peterson could not be brought to trial unless the State obtained a new indictment from a properly instructed grand jury.
At a status hearing on November 1, the State requested a stay pending its appeal of this trial court ruling. Here is the discussion that unfolded during that hearing:
The Court: With Mr. Peterson's case, I issued an order on the motion to dismiss indictment, hoping it would get out to the parties soon enough for them to digest it and anticipate, and this is consistent with my earlier. I don't know if the state wishes to seek a stay, and . . .
Prosecutor: We would.
The Court: . . . petition for this, and . . .
Defense Counsel: Yeah. We're not going to oppose that, Judge. That's what [the prosecutor] and I talked about, and — so . . .
The Court: Okay.
Defense Counsel: . . . that's fine.
Prosecutor: Yeah. We anticipated that and kind of thought that . . .
The Court: Okay.
Prosecutor: . . . would be a likely scenario.
The Court: And that's what I anticipated as well then. So with that, I'll order it stayed until there's a resolution. The court of appeals is considering exactly the same identical issue, in State versus Johnson or Johnson versus State.
So the court granted the stay based on the State's request and Peterson's agreement. However, instead of filing a petition for review, the State presented the case to a new grand jury, which returned an indictment on December 13, 2007. Peterson was arraigned on this indictment on January 2, 2008.
Peterson filed a motion to continue the trial on the day following the arraignment on the new indictment. The parties agree that only one additional day elapsed between the arraignment on January 2, 2008, and calendar call on April 9, 2008. Peterson failed to appear at that calendar call and the court issued a warrant for his arrest.
Peterson was arrested on May 26, 2008. The parties agree that, at most, seventeen countable days elapsed between Peterson's arrest on May 26 and July 21, when he filed his motion to dismiss based on Criminal Rule 45. Discussion The time between November 1, 2007 and January 2, 2008 is excluded.
From the discussion quoted above, it appears that Peterson agreed to the State's request for a stay on November 1, 2007. Criminal Rule 45(d)(2) excludes the following period when computing the time for trial: "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." When the trial judge denied Peterson's motion to dismiss, he relied on this portion of the rule to exclude the time period between November 1 (when Peterson agreed to the stay) and January 2 (when Peterson was arraigned on the new indictment).
In his reply brief, Peterson argues that he was not personally informed of all of the possible consequences of his consent to the State's request for a stay. But we have not required a personal waiver by the defendant when a defense attorney agrees to a continuance. When a defense attorney agrees to a continuance, the time for trial is extended, at least until the judge is notified that the defendant objects. In this case, Peterson never told the court that he disagreed with his counsel's agreement to the State's request for a stay. This period of delay is excluded.
State v. Jeske, 823 P.2d 6, 9 (Alaska App. 1991).
This conclusion effectively disposes of Peterson's appeal. Criminal Rule 45 requires the trial to commence within one hundred and twenty days after exclusion of the periods specified in the rule. As noted above, Peterson agrees that only eighty-two days had expired at the time of the November 1, 2007 hearing. He also agrees that only one day elapsed between his arraignment on the new charge on January 2, 2008 and the calendar call on April 9, 2008, when he failed to appear. And he also agrees that only seventeen countable days elapsed thereafter. The sum of these countable days is one hundred (82+1+17=100). In other words, if we exclude the period from November 1, 2007 to January 2, 2008, then only one hundred days had expired when Peterson filed his motion to dismiss.
The Rule 45 clock restarted after Peterson's arrest.
Rule 45(d)(4) excludes "[t]he period of delay resulting from the absence or unavailability of the defendant." This provision may require the Rule 45 period for trial to be restarted under certain circumstances. The Rule 45 period is restarted when (1) the defendant intentionally fails to appear for court; (2) his disappearance is followed by a substantial period of absence; and (3) no progress is made in the normal pretrial process by virtue of the defendant's disappearance. The trial judge relied on this provision when he concluded that the Rule 45 period restarted because of Peterson's failure to appear for calendar call on April 9, 2008.
See Russell v. Anchorage, 626 P.2d 586, 589-90 (Alaska App. 1981).
See Gottschalk v. State, 36 P.3d 49, 51-52 (Alaska App. 2001).
In his opening brief, Peterson includes a chart that suggests that the Rule 45 period did not start over when Peterson failed to appear. But Peterson did not offer any argument in his briefs about why this portion of the judge's order is incorrect.
Peterson failed to appear for court, and his disappearance was followed by a substantial absence. We have held that a similar seven-week delay was sufficient to show that no progress had been made in the normal pretrial process. We accordingly conclude that the trial judge did not abuse his discretion when he concluded that the Rule 45 period started over after Peterson was arrested on May 26.
See Conway v. State, 707 P.2d 930, 933, 935 (Alaska App. 1985).
This issue is independently dispositive of Peterson's appeal. At the time when he failed to appear for the calendar call, Peterson had not raised any Rule 45 claim. The120-day period for trial was restarted after his arrest. Only seventeen countable days elapsed between Peterson's arrest and the date when he filed his motion to dismiss. This period did not exceed the allowable time for trial.
Peterson did not reserve his constitutional claim.
Peterson entered a plea of no contest on August 28, 2008. Ordinarily a no-contest plea functions as a waiver of all non-jurisdictional issues. However, the parties may enter into a Cooksey plea agreement providing that the defendant may reserve certain claims for appeal.
Morgan v. State, 635 P.2d 472, 478 (Alaska 1981).
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974), disapproved of on other grounds by Miller v. State, 617 P.2d 516 (Alaska 1980).
The terms of a Cooksey plea agreement must be presented to the trial court in writing. In particular, the written agreement "must specify precisely what issue or issues are being reserved for appeal," and "[i]f more than one issue is being reserved for appeal, the parties must either explain why they believe that each separate issue is independently dispositive of the case, or the parties must explicitly agree that the separate issues are dispositive only when taken in combination."
Dow v. State, 155 P.3d 352, 355 (Alaska App. 2007).
Id. at 355.
In this case, the parties entered into a written agreement, providing, "that the State and Defendant Peterson agree that Defendant Peterson's Rule 45 motion to dismiss is dispositive for Cooksey plea purposes." Peterson argues that this language should be interpreted to include his argument that the superior court violated his constitutional right to a speedy trial. But there is nothing in the language of the agreement or the record of the trial court proceedings that suggests the parties intended to include this constitutional claim. Peterson waived his argument concerning the violation of his constitutional right to a speedy trial by failing to reserve that issue when he entered his no-contest plea.
Conclusion
We accordingly AFFIRM the superior court's judgment.
I write separately because my analysis of Peterson's speedy trial claim is different from the analysis explained in Judge Bolger's lead opinion. I believe that the Criminal Rule 45 speedy trial computation was restarted ( i.e., reset to Day 1) when the State obtained the second indictment against Peterson and served that charging document on him.
As explained in the lead opinion, Peterson filed a pre-trial motion seeking dismissal of the State's original indictment on the basis that the prosecutor failed to adequately instruct the grand jurors regarding their authority to return, or refuse to return, an indictment. Judge Randy Olsen agreed with Peterson that the grand jury was misinstructed, but the judge refused to dismiss the indictment — apparently, so that Peterson's existing bail conditions would remain in effect. Instead, even though Judge Olsen declined to dismiss the indictment, he declared in his written order that "[Peterson can] not be required to appear for trial on his felony charge until a properly instructed grand jury issues an indictment." In other words, Judge Olsen ruled that if the State wished to pursue the case against Peterson, the State had to obtain a new indictment.
Although Judge Olsen declined to characterize his action as a "dismissal" of the indictment, I believe that his action constituted a dismissal of the indictment for purposes of Criminal Rule 45. The Alaska Supreme Court addressed this point, albeit in a different context, in State v. Shelton, 368 P.2d 817 (Alaska 1962).
In Shelton, the superior court dismissed a murder indictment after concluding that the indictment was based on perjured testimony (because the victim's wife gave two different accounts of the shooting). Id. at 817-18. The State appealed this ruling to the supreme court.
At that time ( i.e., in 1962), Alaska law precluded the State from pursuing an appeal in a criminal case "except to test the sufficiency of the indictment or information". Id. at 819. Shelton argued that the "sufficiency" of an indictment referred only to the statutory sufficiency of the document itself — such things as whether the document identified the defendant, whether it stated a crime recognized under the law of Alaska, whether it identified the judicial district where the crime was alleged to have been committed, and whether it alleged that this crime was committed on a date that fell within the pertinent statute of limitations. Ibid.
Relying on this narrow definition of the "sufficiency" of an indictment, Shelton argued that the State had no right of appeal if an indictment was dismissed for any other reason. Id. at 819-820. In particular, Shelton argued that the State had no right of appeal when, as in his case, an indictment was dismissed because of an underlying problem in the evidence supporting the indictment. Id. at 817-18.
The supreme court rejected this narrow definition of the "sufficiency" of an indictment:
The word "sufficient" has a larger meaning than that. It denotes the concept of adequacy and adaptation to a desired end. An indictment has a purpose — to require a defendant to stand trial for a criminal offense with which he is charged. If it is not adequate to answer the purpose for which it is intended, then it is insufficient, regardless of the fact that it may meet all the formal statutory requisites and have all the appearances of validity. When an indictment is dismissed for any reason, the question of its sufficiency may create an issue, and this court has the power of review.
Shelton, 368 P.2d at 820 (footnotes omitted).
Based on the supreme court's analysis in Shelton, I conclude that the order issued by Judge Olsen in Peterson's case constituted a "dismissal" of Peterson's indictment, even though the judge expressly declined to call it that. Judge Olsen ruled that, because Peterson's original grand jury was misinstructed, the State would not be allowed to bring Peterson to trial unless and until the State obtained a new indictment.
To paraphrase the wording of Shelton, Judge Olsen's ruling was a judicial declaration that Peterson's original indictment was not adequate for the "purpose [of] requir[ing] [Peterson] to stand trial for [the] criminal offense with which he [was] charged", and that the State was prohibited from pursuing the charge against Peterson unless the State obtained a new grand jury indictment.
Criminal Rule 45(c)(2) declares: "If the charge is dismissed upon motion of the defendant, the time for trial shall begin running from the date of service of the second charge." This is what happened in Peterson's case — in substance, if not in form. In response to Peterson's attack on the indictment, Judge Olsen ruled that the prosecution against Peterson could not go forward unless the State obtained a new indictment. This was a "dismissal" of the original indictment for purposes of Criminal Rule 45(c)(2). Accordingly, under this provision of Rule 45, the speedy trial clock was reset to Day 1 when the State served the second indictment on Peterson.