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THE COURT OF APPEALS OF THE STATE OF ALASKA
DWAYNE DEMIENTIEFF, )
) Court of Appeals No. A-3285
Appellant, ) Trial Court No. 4BE-S87-0825CR
)
v. ) O P I N I
O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1144 - July 12, 1991]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District, Bethel,
Gail Roy Fraties, Judge.
Appearances: Brian Easton, Assistant Public
Defender, Kenai, and John B. Salemi, Public
Defender, Anchorage, for Appellant. W. H.
Hawley, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage,
and Douglas B. Baily, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
Dwayne Demientieff pled no contest to a charge of
second-degree murder, reserving his right to appeal Superior
Court Judge Gail Roy Fraties' denial of his motion to dismiss for
violation of his right to a speedy trial under Alaska Criminal
Rule 45. We affirm.
In the early morning of October 3, 1987, Holy Cross
shopkeeper Roy Prestergard was shot and killed in his combination
store and residence. Demientieff and a man named Bruce Gregory
became suspects because they were reported to have been out
drinking during the night of the murder.
Trooper Ron Belden traveled from Bethel to Holy Cross
to investigate the shooting. Belden spoke with Gregory on
October 4, the day after the homicide. Gregory told Belden that
he and Demientieff were drinking and walking the streets of Holy
Cross in the early morning of October 3 and that, about 7 a.m.,
they went upriver in Gregory's father's boat. According to
Gregory, he and Demientieff shot black grouse for breakfast and
then poled back down the river because they ran out of gas.
Belden noted that Gregory's shoe impressions appeared similar to
impressions found at the murder scene.
Trooper George Dahl helped Belden investigate the case.
On October 5, based on information he received from Belden about
Belden's conversation with Gregory, Dahl told Demientieff's
probation officer, Don Constantine, that Demientieff had consumed
alcohol and possessed a firearm. Constantine and Dahl flew to
Holy Cross that night. Dahl told Constantine that Demientieff
and Gregory were suspects in the Prestergard homicide.
The next morning, Constantine spoke with Demientieff's
father, who told him that Demientieff owned a .44 caliber
handgun. Constantine seized the gun and arrested Demientieff for
drinking and possessing a concealable firearm in violation of the
conditions of his probation. Demientieff was transported to
Bethel, where he was arraigned on October 6 on a petition to
revoke probation. The petition alleged that he had consumed
alcohol on October 2, 1987, had possessed a .44 caliber pistol on
October 5, and had failed to pay restitution due on June 30,
1986.
Belden questioned Demientieff in Holy Cross shortly
after his arrest, before he was taken to Bethel. Demientieff
told Belden that, on the night of October 2-3, he and Gregory had
walked around the village and had a couple of drinks; Demientieff
claimed that they left early in the morning to go up the river.
Demientieff denied having any weapon that night. When Belden
asked Demientieff about Prestergard's store and residence,
Demientieff asked for an attorney. Belden ceased the
interrogation.
During the next several days, the troopers continued
investigating the homicide scene, seizing numerous articles of
evidence. Additional evidence was seized in early November,
1987. Much of the evidence was forwarded to Anchorage for
laboratory examination. On October 7 or 8, 1987, a trooper
interviewed Demientieff's brother, Ron, who said that Demientieff
had told him that he and Gregory had entered Prestergard's store
and that Gregory had shot Prestergard. In November, 1987, the
troopers learned of a witness who had seen Demientieff and
Gregory on the street near the victim's store early on the
morning of the murder. On November 12, 1987, the troopers were
informed that the laboratory had matched footprints at the store
with shoes belonging to Demientieff and Gregory.
Demientieff, still incarcerated in connection with the
probation revocation proceedings, was formally charged with
murder on December 23, 1987, and arraigned the following day. He
later moved to dismiss the charge, arguing that the state had
failed to bring him to trial within the 120-day speedy trial
period provided for under Alaska Criminal Rule 45. Demientieff
asserted that the 120-day speedy trial period commenced when he
was arrested by Constantine on October 6, 1987, for violating the
conditions of his probation. Judge Fraties found, however, that
Rule 45 did not begin to run until Demientieff was arraigned on
the murder charge on December 24. On this basis, the judge
denied Demientieff's motion to dismiss.
Demientieff argues on appeal that, because he was "the
state's main suspect beginning on October 6, 1987, when he was
arrested" for violating probation, Rule 45 began to run on that
date. Demientieff claims that the state had sufficient evidence
to establish probable cause to arrest him for the murder when he
was arrested for the probation violation. Demientieff further
contends that the murder charge arose "out of the same conduct"
as the drinking and possession of firearm charges and thus, the
arrest on the probation violations commenced the running of time
under Rule 45.1
Demientieff's claims are without merit. Assuming that
Demientieff established that the murder charge arose from the
same conduct as the probation violation, he would still not be
entitled to prevail. In Knowlton v. State, 795 P.2d 1287, 1291
(Alaska App. 1987), we held that time under Criminal Rule 45 did
not begin to run on a substantive offense when the defendant was
arrested for violating the conditions of his parole. We reasoned
that Criminal Rule 45(c) must be interpreted consistently with
the statutory definition of arrest. Id. at 1288. Alaska Statute
12.25.160 defines arrest as "the taking of a person into custody
in order that the person may be held to answer for the commission
of a crime." We determined that the rule and statute, when read
together, mean that the time for trial under Rule 45 "begins to
run from the date the defendant is arrested and held to answer
for the commission of a specific crime as well as any subsequent
charges arising out of the same conduct or same criminal
episode." Knowlton, 795 P.2d at 1288.
In Knowlton, we concluded that the defendant was not
"held to answer" for the substantive offense merely by being
arrested for violating his parole conditions. Id. at 1291. We
distinguished between arrest for a substantive offense under AS
12.55.160 and an arrest for a parole violation under AS
33.16.150(a). In this regard, we agreed with the Washington
Supreme Court:
Parole is revoked for violation of the
terms and conditions of parole and as part of
the continuing consequences of the crime for
which parole was granted. Parole revocation
is not punishment for the subsequent events
which violate the parole and which may also
constitute a separate crime.
State v. Johnson, 599 P.2d 529, 532 (Wash. 1979) (quoted in
Knowlton, 795 P.2d at 1290-91).
Probation revocation, like parole revocation, amounts
to continuing punishment for the crime for which probation was
originally imposed. Probation revocation is not punishment for
later offenses that simultaneously amount to violations of the
conditions of probation. Hence, "probation and parole revocation
proceedings are not criminal proceedings within the meaning of
our Rules of Criminal Procedure." Paul v. State, 560 P.2d 754,
756 (Alaska 1977) (quoting State v. Sears, 553 P.2d 907, 910
(Alaska 1976)).2
Since Demientieff, when arrested for violating the
conditions of his probation, was not held to answer for the
murder of Prestergard or even for criminal charges relating to
his consumption of alcohol or possession of a concealable
firearm, the Rule 45 speedy trial period did not begin to run on
October 6, 1987. Rather, it began to run on December 24, 1987,
when Demientieff was arraigned on the murder charge. For this
reason, 120 days had not elapsed when Demientieff filed his
motion to dismiss. Judge Fraties did not err in denying
Demientieff's motion.
The judgment is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. Alaska Criminal Rule 45(c)(1) states:
(c) When Time Commences to Run. The
time for trial shall begin running, without
demand by the defendant, as follows:
(1) From the date the defendant is
arrested, initially arraigned, or from the
date the charge (complaint, indictment, or
information) is served upon the defendant,
whichever is first. If the defendant is in
custody or incarcerated on other charges at
the time the alleged offense occurs, the time
for trial shall begin running 10 days after
the case is referred in writing by
correctional officials to the prosecuting
attorney, or 15 days from the time action is
instituted in the correctional facility to
impose administrative segregation, whichever
is earlier. The arrest, arraignment, or
service upon the defendant of a complaint,
indictment, or information, relating to
subsequent charges arising out of the same
conduct, or the refiling of the original
charge, shall not extend time, unless the
evidence on which the new charge is based was
not available to the prosecution at the time
of the original commencement date of the 120
day period and a showing of due diligence in
securing the defendant for the original
charges is made by the prosecution . . . .
2. Other states have held that the time constraints of a
speedy trial rule or state constitutional speedy trial provision
are inapplicable in probation revocation proceedings. See e.g.,
State v. Friedman, 732 P.2d 1322, 1325 (Mont. 1987); State v.
Oppelt, 601 P.2d 394, 398-99 (Mont. 1979); State v. Chavez, 694
P.2d 927, 930 (N.M. App. 1985); State v. Valentine, 580 P.2d
1119, 1122 (Wash. App. 1978).
