Andrew v. State

• Decision Date: 25 January 1985
• Docket Number: No. A-201,A-201
• Citation: 694 P.2d 168
• Parties: Joseph ANDREW, Jr., Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 168

694 P.2d 168

Joseph ANDREW, Jr., Appellant, v. STATE of Alaska, Appellee.

No. A-201.

Court of Appeals of Alaska.

Jan. 25, 1985.

Karen A. Kirby, Bethel, for appellant.

Bryan E. Schuler, Asst. Dist. Atty., Laurie H. Otto, Dist. Atty., Bethel, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION

BRYNER, Chief Judge.

Joseph Andrew, Jr., pled no contest to driving while intoxicated (DWI). AS 28.35.030. Andrew reserved his right to appeal the denial of his motion to dismiss the complaint on the ground that, pursuant to Alaska Criminal Rule 45, trial was not held within 120 days of his arrest. See Oveson v. Anchorage, 574 P.2d 801, 803 and n. 4 (Alaska 1978); Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).

Andrew was arrested in Bethel for DWI on June 6, 1983. After several delays Andrew's arraignment was continued to August 17. When Andrew did not appear on the 17th, attorney Karen Kirby informed the court that a man named Andrew had called her that morning from McGrath. Kirby said Andrew had not yet retained her as counsel. Andrew's arraignment was reset for August 24. After Andrew failed to appear on August 24, he was arrested and subsequently posted bail. On August 31, Blair McCune, an attorney from Kirby's office, filed an appearance as counsel for Andrew and entered a not guilty plea on Andrew's behalf. Andrew was not personally present. The court set a trial date of November 14, a period of 161 days after Andrew's arrest. No objection to the trial date was made. On November 14, McCune moved to dismiss the complaint on the ground that Andrew's right to a speedy trial under Criminal Rule 45 had been violated. Magistrate Curda denied the motion, finding that:

[B]ased on the early involvement of Ms. Kirby's office that under DeMille that defendant's attorney knew or should have known ... what the four-month date was, and had some awareness of that ... on ... August 31st when the not guilty plea was entered....

The single issue in this case is the propriety of Magistrate Curda's finding that McCune's failure to object to the November 14, 1983, trial date constituted a waiver of Andrew's Rule 45 right to a speedy trial. ¹ We conclude that Andrew could not properly be held to have waived his right to a speedy trial unless the record supported a finding that, at the time Andrew's trial was set for November 14, 1983, his counsel, McCune, actually knew that the trial date was beyond the permissible 120-day speedy trial period. Since the trial court's finding that Andrew waived his right to a speedy trial was apparently based on the assumption that either a knowing or negligent failure to raise the issue of speedy trial would amount to a waiver of that issue, we must remand this case for reconsideration.

Our conclusion in this case is based on DeMille v. State, 581 P.2d 675 (Alaska 1978), and its progeny. In DeMille, the trial court mistakenly set a trial date that was beyond the allowable 120-day period. Although DeMille's case had already been pending for a considerable time when the trial date was set, the trial court was apparently under the impression that the speedy trial period had recently commenced. DeMille's attorney had attended the defendant's initial arraignment and was therefore presumably aware of the commencement date of the 120-day period. Id. at 676. He nevertheless failed to object to the trial date and further failed to raise the issue of speedy trial at a subsequent omnibus hearing, which was held before the 120-day rule expired. Id. at 677 n. 6. Under these circumstances, the supreme court held that DeMille's counsel had waived DeMille's right to a speedy trial under Rule 45 because he "knew or should have known" that the trial date violated Rule 45. Id. at 677.

We do not believe that DeMille can properly be read to establish a rule that the right to a speedy trial under Rule 45 will invariably be waived if the defendant's attorney negligently fails to assert that right at the time a trial date is first set in open court. The supreme court's holding in DeMille considered the totality of the circumstances in that case. Id. A review of the facts in DeMille indicates that DeMille's counsel, since he personally participated in the initial court proceedings in the case, must have had actual knowledge that the speedy trial rule began running well before the hearing at which DeMille's trial date was set. In context, the supreme court's conclusion that DeMille's counsel "knew or should have known" of the Rule 45 violation reflects the court's judgment that, at the time the superior court set the trial date, it was presumably obvious to DeMille's counsel that the date would violate Rule 45. Thus, in DeMille the supreme court did no more than express its willingness to infer actual knowledge from the uncontested facts presented in the record.

Subsequent decisions of the supreme court that discuss and apply DeMille provide strong support for a narrow reading of that case. In Ahmaogak v. State, 595 P.2d 985, 987 n. 3 (Alaska 1979), defendant's attorneys acknowledged that they did not object when the court set a trial date beyond the permissible 120-day limit. However, they represented that when the court set the trial date, they had not been aware that the date would violate the speedy trial rule since they were not actually aware then that the defendant had previously been served with a summons and complaint, which commenced the running of the 120-day speedy trial period well before the hearing at which the trial date was set. In deciding Ahmaogak, the supreme court made no inquiry as to whether Ahmaogak's attorneys had been negligent in their failure to know of the correct starting date for the 120-day rule. Instead, the court accepted without question the representations of counsel that they did not have actual knowledge of the prior summons and complaint.

In Westdahl v. State, 592 P.2d 1214, 1218 (Alaska 1979), the court came to a similar conclusion. Moreover, the interpretation given by the supreme court to DeMille in Westdahl makes it clear that the court read DeMille to require a knowing waiver of speedy trial rights. The court in Westdahl stated:

[W]e have held that where defense counsel is present at a trial setting and is aware that the date for trial falls outside the permissible 120-day period, a failure to object constitutes a waiver.

Westdahl, 592 P.2d at 1218, citing DeMille v. State, 581 P.2d 675. The court further stated:

In order to ascertain whether a DeMille waiver occurred, it is necessary to ascertain whether the attorney who represented Westdahl at the April 22, 1977 arraignment was then aware of the earlier arrest and that such arrest was on a charge arising out of the same conduct which was the basis for the state OMVI complaint. If so, we hold that Westdahl waived the commencement of the 120-day period on February 12, 1977. If the attorney was not aware of the earlier arrest or was not aware it arose out of the same conduct which was the basis for the latter charge, there was no waiver, and the conviction must be reversed for violation of the provisions of Rule 45.

Westdahl v. State, 592 P.2d at 1218 (emphasis added).

Thus, although it is possible to read the supreme court's decision in DeMille v. State as implying that waiver of a defendant's right to a speedy trial under Rule 45 will occur if the defendant's counsel negligently fails to assert that right when a trial date is set in open court, such an interpretation would be inconsistent with the views subsequently expressed by the court in Ahmaogak and Westdahl. DeMille, Ahmaogak and Westdahl can be reconciled only if DeMille is read to mean that, absent extraordinary circumstances, ² a defendant's right to a speedy trial is relinquished only when it is knowingly waived by the defendant or the defendant's counsel. Knowledge may, of course, be inferred from the record.

In this case, Blair McCune, Andrew's counsel at the time the November 14, 1983, trial date was set, did not personally participate in Andrew's initial court proceedings. The question whether McCune was actually aware of a potential Rule 45 violation when the trial date was set is contested. The trial judge in this case did not resolve this dispute. Instead, the judge interpreted DeMille to establish a negligence standard for waiver of the right to a speedy trial under Rule 45. Apparently relying on a finding of negligence, the court held that Andrew's right to receive a speedy trial had been waived. Because the trial court relied on an incorrect interpretation of DeMille in concluding that Andrew waived his right to a speedy trial, we must remand this case. On remand, the court should determine whether McCune was aware, when the court set the date for Andrew's trial, that the trial date was beyond the permissible 120-day speedy trial period. A waiver of speedy trial may be found only if the court determines that McCune was aware of the violation at that time or that, given the circumstances actually known to McCune, the violation should have been apparent to him.

We do not imply that trial courts are without authority to compel timely objections when trial dates are set beyond the 120-day speedy trial limit. We are unaware of any reason why defense counsel could not properly be compelled, by an express pretrial order, to raise any speedy trial objections either at the time a trial date is set or within a reasonable period of time thereafter. Nothing in our decision precludes the use of such an order, which, we believe, would effectively curtail abuse of the speedy trial rule. We hold only that Criminal Rule 45 does not, in and of itself, impose a general duty requiring defense counsel to affirmatively object to a trial date in order to preserve the defendant's speedy trial rights. Under DeMille, Ahmaogak, and Westdahl, an affirmative duty to object arises only when...