Cooksey v. State

Decision Date19 July 1974
Docket NumberNo. 2076,2076
Citation524 P.2d 1251
PartiesJohn Charles COOKSEY, Appellant, v. STATE of Alaska, Appellee.
CourtAlaska Supreme Court

Herbert D. Soll, Public Defender, Alexander O. Bryner, Asst. Public Defender, Anchorage. for appellant.

John E. Havelock, Atty. Gen., Juneau, Joseph D. Balfe, Dist. Atty., Arthur D. Talbot, Asst. Dist. Atty., Anchorage. for appellee.

Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.

OPINION

RABINOWITZ, Chief Justice.

The primary issues in this appeal concern interpretation of Criminal Rule 45, Alaska's speedy trial rule.

Appellant John Cooksey was arrested on October 5, 1972, and charged with the crime of assault with a dangerous weapon. On October 27, 1972, an indictment against Cooksey was returned and arraignment was held on October 30, 1972.

Cooksey next appeared in superior court on November 21, 1972, at which time he entered a plea of not guilty. Trial was set for the week of February 20, 1973, in order to permit psychiatric evaluation of Cooksey. Cooksey filed a waiver of his speedy trial right under Criminal Rule 45 until that date. 1

Cooksey was examined by Dr. David Boyd, and Dr. Boyd's report of psychiatric evaluation, dated January 5, 1973, was received by defense counsel on February 1. Prior to the receipt of this report, however, Dr. Boyd was killed in an airplane accident. In view of the doctor's death, defense counsel considered it necessary to file a renewed application for psychiatric evaluation. Consequently, the February 20 trial date had to be cancelled, and in order to obviate any Criminal Rule 45 problem which might arise from the additional delay occasioned by this second psychiatric evaluation, Cooksey, on February 22, 1973 executed a second waiver which provided in part:

Defendant waives his right of speedy trial from the date February 20, 1973, until such time as the psychiatric evaluation can be completed and his case recalendared for trial pursuant to normal calendaring procedures followed by the Superior Court of the State of Alaska.

Cooksey was subsequently examined by Dr. Langdon of the Langdon Psychiatric Clinic, who completed his report on May 24, 1973. The Langdon Clinic apparently mailed copies of this report to the superior court, the district attorney's office, and the public defender's office, with the latter two offices receiving copies of the report on May 29, 1973.

The records of the superior court indicate that it did not receive a copy of Dr. Langdon's psychiatric report until July 13, 1973. At that time a hearing was set for July 17 to determine Cooksey's competence to proceed to trial. After the hearing and on the basis of Dr. Langdon's report, Cooksey was found competent to stand trial.

On August 8, 1973, the superior court set September 4 as the trial date and imposed an August 28 deadline by which Cooksey was to submit any motions based upon alleged violations of the speedy trial provisions of Criminal Rule 45. Thereafter, Cooksey filed a motion to dismiss the indictment based upon a purported violation of that rule. After oral argument, the superior court denied Cooksey's motion to dismiss.

On September 4 Cooksey changed his not guilty plea to nolo contendere to the assault with a dangerous weapon charge. This plea was presented to the superior court as a negotiated plea, pursuant to Criminal Rule 11(e). 2 The plea negotiations called for imposition of a five-year sentence of imprisonment, with two and one-half year suspended upon probation, credit given for time already served, and parole eligibility left to the discretion of the parole board. As a further element of the negotiations, Cooksey expressly reserved the right to appeal the superior court's denial of his motion to dismiss for violation of the speedy trial provisions of Criminal Rule 45. The superior court approved the negotiated plea; Cooksey was sentenced in accordance with its terms, and this appeal followed. 3 Before reaching the merits of the speedy trial issue presented by this appeal, it is necessary to dispose of a threshold procedural question; namely, whether a defendant is entitled to appeal following conviction upon a plea of nolo contendere.

A plea of guilty is generally regarded as a waiver of all non-jurisdictional defects in a case. 4 The plea provides a means by which the defendant may acknowledge his guilt and manifest a willingness to assume responsibility for his actions. A plea of nolo contendere, like a guilty plea, is both an admission of guilt and a waiver of all non-jurisdictional defects. 5

There are, however, two characteristics of the case at bar that merit special consideration. First, an integral part of the negotiated plea which was accepted by the superior court was the stipulation that Cooksey retained the right to appeal the speedy trial issue despite his plea of nolo contendere. Second, the applicability of the speedy trial provision of Criminal Rule 45 to the case at bar was fully litigated at the pre-trial hearing held on Cooksey's motion to dismiss.

United States v. Caraway, 474 F.2d 25, vacated on other grounds, 483 F.2d 215 (5th Cir. 1973), is similar to the case at bar in these two characteristics. In Caraway, the two defendants were charged with the importation of six pounds of marijuana. Both pleaded not guilty to the charge and sought by pre-trial motion to suppress on constitutional grounds all the evidence seized. After denial of the supression motion, both defendants were granted permission to enter nolo contendere pleas, with the express understanding that they would be able to appeal the denial of the suppression motion. The Court of Appeals for the Fifth Circuit, in a thoughtful opinion authored by Judge Rives, noted that in a such a situation the court 'felt constrained' to honor the agreement between the lower court and the defendant. 6

The Fifth Circuit articulated two reasons for recognizing the express agreement for a limited appeal right. First, the Fifth Circuit was reluctant to establish a rigid rule requiring a defendant to undergo the costly and futile ordeal of a complete trial, when the state could easily prove its case by evidence that was alleged to have been illegally obtained and by no other evidence, and the defendant merely seeks to preserve a single, non-jurisdictional issue. Second, expressly conditioning a nolo contendere plea on a limited right to appellate review demonstrates that the plea was not so 'intelligently' entered as to waive the non-jurisdictional defect sought to be reviewed. 7

The entering of a plea by an accused is a critical stage in the criminal proceeding. A plea of guilty or nolo contendere acts as a waiver of many constitutionally-guaranteed rights. Accordingly, courts have been very concerned that a plea of guilty or nolo be both voluntary and intelligently entered. 8 If the plea does not possess both attributes, then it is generally not regarded as valid and binding. If a nolo contendere plea, expressly conditioned upon a limited right of appeal as it was in the present case, is adopted by the trial court the failure of the judicial system to respect that express condition would likely render the nolo plea unintelligent and invalid.

Additionally, the only issue sought to be reviewed by Cooksey is the trial court's interpretation and administration of the four-month speedy trial provisions of Criminal Rule 45. This is a question which was fully argued at a pre-trial hearing. If Cooksey had prevailed, he would have been entitled to dismissal of the indictment, and the state would have been barred from further prosecution for the offense of assault with a dangerous weapon. 9 Since violation of the speedy trial rule was the only specification of error that Cooksey intended to urge on appeal, it would be wasteful of legal resources to require that Cooksey undergo a full trial for the mere sake of preserving the right to appeal the speedy trial ruling of the superior court. 10 In light of these two circumstances, we feel compelled to decide the merits of Cooksey's claim on the speedy trial issue in the case at bar. 11

We now turn to the speedy trial issue. Cooksey was arrested on October 5, 1972, and was indicted on October 27. Both Cooksey and the state are agreed that the four-month period under Criminal Rule 45 began running as of October 5. On November 21, Cooksey filed a waiver of his right to a speedy trial until February 20, 1973, so that he could secure a psychiatric evaluation prior to trial. On February 20, Cooksey once again filed a waiver of his speedy trial right under Rule 45 until a second psychiatric evaluation could be completed and the case 'recalendared for trial pursuant to normal calendaring procedures followed by the Superior Court.'

This second psychiatric report was completed by Dr. Langdon on May 24, 1973, and copies were received by the district attorney and the public defender on May 29. The following facts concerning the mailing and receipt of this second psychiatric report were elicited at the hearing on Cooksey's motion to dismiss. 12 The Langdon Clinic apparently mailed copies of the psychiatric report to the district attorney, the public defender, and the superior court at the same time. In the first part of July, the district attorney, having received his copy of the report on May 29, noted that the court had not yet scheduled any action in Cooksey's case with regard to the report and a competency hearing. The district attorney contacted the superior court to inquire about the case, and the court indicated that it had not yet received a copy of the psychiatric report. A thorough search for the report was conducted, but the search failed to disclose that the court had ever received Dr. Langdon's report. The clinic subsequently mailed an additional copy which was received by the superior court on July 13, and a competency hearing was held on July 17. Cooksey was found to be competent to...

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