Summary
upholding court's tolling of Rule 45 based on defense attorney's unavailability where defendant did not challenge court's finding that her attorney had conflicting obligations during that time period
Summary of this case from Alaska Pub. Def. Agency v. Superior CourtOpinion
Court of Appeals No. A-9215.
September 6, 2006.
Appeal from the District Court, Third Judicial District, Kenai, David S. Landry, Judge. Trial Court No. 3KN-04-1030 CR.
Colleen Murray, Assistant Public Defender, Kenai, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Lisa Thomas, Assistant District Attorney, June Stein, District Attorney, Kenai, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Joanne R. Cook was convicted of driving with a revoked license and of failing to insure her vehicle. She appeals her convictions, arguing that her right to a speedy trial under Alaska Criminal Rule 45 was violated because she was not brought to trial within the 120 days required by that rule. For the reasons below, we reject Cook's Rule
Facts and proceedings
Cook was arrested on May 12, 2004, for driving while under the influence, driving while her license was revoked, and failing to insure her vehicle. She was arraigned on those charges the next day. Her original trial date was August 17, 2004, but, due to several continuances granted at Cook's request, trial was rescheduled to October 5, 2004. There is no dispute that Rule 45 was properly tolled between August 2 and October 5 because of these continuances. With those periods excluded, the 120-day time for trial was set to expire on November 14, 2004.
AS 28.35.030(a)(1).
AS 28.15.291(a).
AS 28.22.011(a).
Cook's case was placed on the trial calendar the week of October 5; however, it remained on the calendar in trailing status until the week of February 22, 2005. On February 11, Cook filed a motion to dismiss under Rule 45.
District Court Judge David S. Landry deferred ruling on Cook's Rule 45 motion until after her trial. On February 23, 2005, Cook was convicted on stipulated facts of driving with a revoked license and failing to insure her vehicle. On April 8, 2005, Judge Landry denied Cook's Rule 45 motion.
The State dismissed the driving while under the influence charge before trial. See Alaska R. Crim. P. 43(a).
Cook appeals the denial of her motion to dismiss.
Why we reject Cook's Rule 45 claim
Under Rule 45, a criminal defendant must be brought to trial within 120 days from the date the charging documents are served on the defendant. The rule excludes several time periods, including "the period of delay resulting from [a] . . . continuance granted . . . with the consent of the defendant and the defendant's counsel" and "[o]ther periods of delay for good cause." Cook maintains that Judge Landry erroneously excluded certain periods from the Rule 45 calculation and that more than 120 days had elapsed on the date she filed her motion to dismiss.
Alaska R. Crim. P. 45(b), (c).
Alaska R. Crim. P. 45(d)(2).
Alaska R. Crim. P. 45(d)(7).
The periods at issue fall within the 130 days that elapsed between Cook's October 5, 2004, trial date and her February 11, 2005, motion to dismiss. Judge Landry found that 100 days had tolled during this period because the State's expert was unavailable (for 19 days) and because Cook's attorney was either on leave, working out of town, or occupied with other trials (for 81 days). After excluding these periods, the court found that the 120-day time for trial would have expired on February 22-11 days after Cook filed her motion to dismiss.
Cook points out that Judge Landry, in finding that 100 days were tolled between October 5 and February 11, mistakenly included days after she had filed her motion to dismiss (from February 11 through February 15). This is true. Correcting for this error, but accepting the court's other unchallenged factual findings, only 95 days were tolled between October 5 and February 11, and the 120-day time for trial would have expired on February 17-6 days after Cook filed her motion.
Cook's other claim is that the district court erred in tolling Rule 45 based on her attorney's unavailability during the second weeks of October, November, and December (a total of 21 days). Judge Landry found that Cook's attorney was unavailable during those weeks because the attorney either was in trial in the superior court or was handling the misdemeanor calendar in Homer. Cook does not dispute that her attorney had these competing obligations; rather, she argues that the court erred by finding that these obligations made her attorney "unavailable." Cook points out that the district court, by its own admission, does not normally schedule trials during the second week of each calendar month. Cook argues that, as a legal matter, the court could not count the fact that her attorney was unavailable for trial during the second week of each month when the court could not have scheduled trial during those weeks.
Cook cites no authority for this proposition. Moreover, there is nothing in the record to suggest that it was impossible for the court to schedule Cook's trial during the weeks in which it did not normally schedule trials if doing so had been necessary to avoid violating Rule 45. Nor has Cook refuted Judge Landry's finding that the court's normal trial schedule was adopted pursuant to an agreement with the Public Defender Agency that the court would not schedule trials during weeks in which agency attorneys normally handled cases in other locations.
As our supreme court has emphasized, it is the trial court's duty to monitor pre-trial procedures and to put into place "failsafe techniques" to ensure that defendants are brought to trial within the 120-day limit. "This process cannot be left to chance encounters or implicit understandings among counsel no matter how well founded or well meaning; the court process is involved and the court must exercise control over it."
Peterkin v. State, 543 P.2d 418, 424 (Alaska 1975).
Id.
Nevertheless, in this case Cook has failed to establish any violation of Rule 45. She has not challenged the district court's findings that her attorney was actually unavailable for trial on all the disputed dates. We therefore conclude that the district court did not err in tolling Rule 45 on those dates based on her attorney's unavailability.
Conclusion
We AFFIRM the decision of the district court.