Opinion
Court of Appeals No. A-9349.
April 30, 2008.
Appeal from the District Court, Third Judicial District, Kenai, David S. Landry, Judge, Trial Court No. 3KN-04-1813 CR.
Paul Malin, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kelly J. Lawson, Assistant District Attorney, June Stein, District Attorney, Kenai, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Robert J. Baklarz was convicted of refusal to submit to a breath test. He appeals his conviction, arguing that his right to a speedy trial under Alaska Rule of Criminal Procedure 45 was violated because he was not brought to trial within the 120 days required by that rule. Baklarz argues the district court erred by sua sponte excluding nine days in its Rule 45 calculation because of the unavailability of his attorney. He also argues the court erred in granting the State's motion to continue trial and toll Rule 45 based on the unavailability of the investigating officer because the State did not show due diligence under Criminal Rule 45(d)(3). Because Baklarz did not preserve for appeal the issue of tolling Rule 45 for the officer's unavailability, and because his claim of error regarding the sua sponte tolling of Rule 45 is moot, we affirm his conviction.
AS 28.35.032(a).
Facts and proceedings
On August 1, 2004, Robert J. Baklarz was arrested for driving while under the influence and refusal to submit to a breath test. He was arraigned on August 19, 2004. On November 22, 2004, both Baklarz and the State announced they were ready for the trial scheduled for December 7, 2004. There is no record of any action in the case between December 7, 2004, and January 24, 2005.
AS 28.35.030(a)(1).
AS 28.35.032(a).
On January 24, 2005, the State filed a motion to continue the trial because of the unavailability of the police officer who investigated this case. At the status hearing at which the parties discussed the State's motion to continue, Baklarz's attorney announced she was resigning from the Public Defender Agency and another attorney would be taking over the case. Baklarz did not oppose the State's motion to continue. Judge Landry granted the State's motion on January 27, 2005, tolling Rule 45 through January 31, 2005.
On March 31, 2005, Baklarz filed an untimely one-page "Notice of Objection to Tolling Rule 45," objecting to the tolling of Rule 45 resulting from the State's January 24 motion to continue. Because this notice was untimely, it did not affect the tolling of Rule 45.
On January 31, 2005, Baklarz announced his intent to file a motion to dismiss for violation of his rights under Criminal Rule 45. On April 14, 2005, Baklarz filed a Rule 45 motion to dismiss, arguing that Rule 45 expired on January 22, 2005, and that his case should be dismissed because he had not been brought to trial by that date.
Judge Landry denied Baklarz's motion. He ruled that after December 7, 2004, Rule 45 had been tolled for nine days because Baklarz's attorney was unavailable for trial:
Between December 7th, 2004 and the date of the filing of the motion to dismiss, the court was made aware that . . . [Baklarz's attorney] was going to be out of her office for approximately eight weeks. The court never received any motions to continue by counsel. It was then learned through other attorneys . . . [at the Public Defender Agency] that she was leaving the agency. No one indicated that any of her cases had been re-assigned. Meanwhile, all . . . [of her] cases remained on the trial list with no attorney to try the matters. Accordingly, the court added nine (9) days to the Rule 45 expiration for the trial calendar of January 19th, 2005.
Judge Landry concluded that Rule 45 had not expired on or before January 22, 2005. After his motion to dismiss was denied, Baklarz later filed a second motion to dismiss. But the court never ruled on this second motion to dismiss. On June 27, 2005, Baklarz entered a Cooksey plea and was convicted of refusal to submit to a breath test.
Baklarz appeals the denial of his motion to dismiss, arguing Judge Landry erred when he tolled Rule 45 for nine days between December 7, 2004, and January 19, 2005, based on the unavailability of his attorney. He also argues Judge Landry erred in tolling Rule 45 for six days in January 2005 because of the unavailability of the police officer. Baklarz failed to preserve for appeal his claim regarding the January continuance
Baklarz argues on appeal that the district court erred in granting the State's motion to continue and in tolling Rule 45 for six days in January 2005 because of the unavailability of the police officer. Because Baklarz failed to raise this issue in the district court, he did not preserve it for appeal.
Alaska R. Crim. P. 45(f).
In his motion to dismiss for violation of Rule 45, Baklarz relied on the argument that Rule 45 expired on January 22, 2005 — before the State's January 24th motion to continue. He did not litigate the tolling of Rule 45 based on the unavailability of the officer from January 24 to January 31, 2005. In fact, referring to this continuance, he stated, "Regardless of whether the State's subsequently filed motion should have been granted or not, 120 un-tolled days had passed." Baklarz later filed a second motion to dismiss, again arguing a violation of Rule 45, but he did not raise the January continuance issue in the second motion — and, in any event, he did not obtain a ruling on the second motion.
Consequently, Baklarz did not preserve his right to appeal the issue of whether the court properly tolled Rule 45 for six days in January 2005 based on the unavailability of the officer.
Baklarz's claim that Judge Landry erred in tolling Rule 45 for nine days because of the unavailability of his attorney is moot
Baklarz also argues the court erred in tolling Rule 45 for nine days based on the unavailability of his attorney. In his order denying Baklarz's motion to dismiss, Judge Landry sua sponte found Baklarz's attorney had been unavailable for trial between December 7, 2004, and January 19, 2005. Based on this unavailability, Judge Landry tolled Rule 45 for nine days. Baklarz argues Judge Landry violated Baklarz's rights when he decided this issue sua sponte without giving Baklarz an opportunity to be heard.
This issue is moot because even if Baklarz were to prevail, he would be entitled to no relief. In Baklarz's motion to dismiss, he argued that Rule 45 expired on January 22, 2005, a Saturday. Assuming for the purpose of this appeal that Rule 45 did expire on that Saturday, the State would have had until Monday, January 24, 2005, to bring Baklarz to trial. On Monday, January 24, 2005, the State filed a motion to continue which was granted, and thus Rule 45 was tolled.
See State v. Roberts, 999 P.2d 151, 153 (Alaska App. 2000) ("Generally courts will not resolve an issue when it is moot.").
The issue of the sua sponte tolling is therefore moot.
Conclusion
We AFFIRM Baklarz's conviction.