Opinion
Court of Appeals No. A-8903.
March 8, 2006.
Appeal from the District Court, Fourth Judicial District, Fairbanks, Raymond M. Funk, Judge. Trial Court No. 4FA-04-348 CR.
Geoffry Wildridge, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Jill S. Dolan, Assistant District Attorney, Fairbanks, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Stephen A.T. Sykes was convicted of driving while under the influence. On appeal, he contends that the district court erred when it denied his motion to dismiss the case on Alaska Criminal Rule 45 grounds. For the reason set out below, we affirm the district court's decision.
AS 28.35.030(a)(2).
Facts and proceedings
On December 29, 2003, Sykes was arrested in Fairbanks and charged with driving while under the influence, driving without a valid driver's license, fifth-degree misconduct involving a controlled substance, and fourth-degree misconduct involving a weapon. That same day, the magistrate presiding at Sykes's arraignment dismissed all four charges without prejudice — apparently sua sponte — for lack of a probable cause statement.
AS 28.35.030(a)(2), AS 28.15.011(b), AS 11.71.050(a)(3)(B), AS 11.61.210(a)(1), respectively.
On January 29, 2004, the State filed a new complaint charging the same offenses. On February 5, 2004, Alaska State Trooper John I. Henderson received a summons to be served on Sykes.
On February 6, Henderson made several phone calls in an unsuccessful effort to contact Sykes and serve him with the summons. On February 19, another trooper went to Fort Wainwright and left a business card at the place where Sykes lived. At about this same time, Henderson contacted the military police on Fort Wainwright. The military police mistakenly told Henderson that Sykes was in the military and had been transferred to Hawaii (Sykes was in fact a military dependent). Henderson attempted to get a telephone number in Hawaii for Sykes but was told that no such number was available.
Because the troopers were unable to serve Sykes with the summons, a warrant for his arrest was issued. When Sykes discovered that an arrest warrant had been issued, he contacted the court. He managed to have the warrant quashed, and his arraignment was scheduled for March 19, 2003.
A calendar call was held on May 3, 2004. At that time, Sykes requested a continuance until May 17. By May 3, 126 days had passed since Sykes had first been charged on December 29. On June 3, 2004, Sykes filed a motion to dismiss, claiming that he was entitled to a dismissal under Criminal Rule 45 because 126 days had passed as of May 3. He argued that no time should be excluded because the State had not acted with "due diligence" in its "attempts to serve [Sykes] with the [new] complaints[.]"
An evidentiary hearing was held on July 7, 2004, and oral arguments were made on July 29, 2004.
At the evidentiary hearing, Trooper Henderson testified as to what the troopers had done to serve the summons. Sykes also testified, and he acknowledged that a trooper had left a business card at his residence on or about February 19. Sykes said that he called the telephone number on the card. He said he did not talk to the trooper who left the card, but that he left a message that included his phone number. The troopers never responded to his message. Sykes said that he did not become aware of the new complaint until he was informed that there was a warrant for his arrest.
Based on this evidence, District Court Judge Raymond M. Funk denied Sykes's motion. In a written decision, Judge Funk found that thirteen days were excluded from the 120-day time for trial in Rule 45 when the troopers were actively trying to serve Sykes with the summons. He ruled that under Criminal Rule 45(d)(4), the troopers had acted with due diligence from February 6 through February 19, and had in fact managed to contact Sykes by leaving a business card at his residence. But he also ruled that the troopers were no longer diligent after they took no action in response to Sykes's telephone call. With these thirteen days excluded, Rule 45 had not yet run as of May 3, when Sykes had requested a continuance that tolled the Rule 45 clock. Accordingly, Judge Funk denied the motion to dismiss.
Sykes appeals, claiming that there is no factual basis for Judge Funk's finding that Sykes's whereabouts from February 6 to February 19 were unknown and could not be determined by due diligence.
Did the district court correctly exclude thirteen days?
Sykes contends that Judge Funk erred when he excluded the thirteen days in February. He argues that the record does not support a finding that his whereabouts were unknown. He also argues that the record does not support Judge Funk's finding that the troopers acted with "due diligence" in attempting to serve him with the summons.
Alaska Criminal Rule 45(b) provides that "[a] defendant charged with a felony, a misdemeanor, or a violation shall be tried within 120 days from the time set forth in paragraph (c) of this rule." In Sykes's case, Judge Funk started the 120-day time period on December 29, 2003, when Sykes was initially served with the charging documents. The parties agree that Rule 45's 120-day time period commenced on December 29, 2003, and that it was tolled on May 3, 2004, when Sykes asked for a continuance. Sykes does not claim that any additional time ran against Rule 45 after May 3, 2004. By May 3, 2004, 126 days had passed from the day Sykes was first served with the charges in this case.
See Alaska R. Crim. P. 45(c)(2).
Sykes argues that Rule 45(d)(4) implicitly required Judge Funk to find that his whereabouts were unknown before considering whether the troopers had acted with due diligence in locating him. But this argument ignores an important part of the rule. Under Rule 45(d)(4), time does not count against the State if the defendant is "unavailable." In the context of Sykes's case, "unavailable" refers to a situation in which "the defendant's whereabouts are known, but [the defendant's] presence for trial cannot be obtained. . . ."
Alaska R. Crim. P. 45(d)(4).
In Spencer v. State, and Odekirk v. State, the Alaska Supreme Court and this court applied this clause of Criminal Rule 45(d)(4) to situations where prior charges against the defendant were dismissed and the State attempted to serve new charges (arising from the same criminal episode) on the defendant. Even though the defendant's whereabouts are known, time is excluded under Rule 45(d)(4) if, despite diligent efforts, the State is unsuccessful in serving the new charges on the defendant.
611 P.2d 1 (Alaska 1980).
648 P.2d 1039 (Alaska App. 1982).
Spencer, 611 P.2d at 7; Odekirk, 648 P.2d at 1043-44.
Here, Judge Funk found that thirteen days (February 6 through February 19, 2004) should be excluded from the speedy trial calculation under Rule 45(d)(4) because, during those days, the State engaged in diligent efforts to serve the new charges on Sykes. If these thirteen days are excluded from the Rule 45 calculation, Sykes was brought to trial within the time limits of the rule. Thus, the only question in this appeal is whether the record supports Judge Funk's finding.
Here, the evidence shows that the troopers attempted to contact Sykes by calling his phone number and traveling to his residence. The fact that the troopers were not initially successful in making contact with Sykes with the phone does not mean that they were not exercising due diligence. As Judge Funk acknowledged in his decision, the trooper's visit to Sykes's residence was ultimately successful because it resulted in Sykes attempting to contact the troopers. And, as Judge Funk recognized, under Odekirk, the State need not "exhaust every conceivable method" to show that it was exercising due diligence. Rather, "due diligence" requires only that the State make reasonable efforts to find a defendant. After the evidentiary hearing, Judge Funk found that the efforts made to find Sykes from February 6 to February 19 were reasonable. The record supports this finding. With these thirteen days excluded from the Rule 45 calculation, Sykes was brought to trial within the time limits of the rule.
Id. (citing Spencer, 611 P.2d at 7).
Conclusion
The decision of the district court is AFFIRMED.