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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-3758
Petitioner, ) Trial Court No. 1SI-S90-201
Cr
)
v. )
) O P
I N I O N
DANNY J. JESKE, )
)
Respondent. ) [No. 1188 - December 20,
1991]
________________________________)
Petition for Review from the Superior Court,
First Judicial District, Sitka, Larry C.
Zervos, Judge.
Appearances: Eric A. Johnson, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Petitioner. James W. McGowan, Sitka, for
Respondent.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
The State of Alaska charged Danny J. Jeske with third-
degree assault and second-degree weapons misconduct, AS 11.41.220
(a)(1) and AS 11.61.210(a)(1). The superior court dismissed
these charges because it ruled that Jeske had not been brought to
trial within the time limits of Alaska Criminal Rule 45. We
granted the State's petition for review of this dismissal, and we
now reverse the superior court and reinstate the charges against
Jeske.
Jeske was arrested on June 30, 1990. Shortly after his
arrest, he retained an attorney to represent him. Jeske's case
was originally scheduled for trial on October 9, 1990.
On September 19, three weeks before the scheduled
trial, Jeske's attorney was interviewed by the Sitka police
regarding the attorney's potential violation of AS 11.46.620(a),
misapplication of property. The attorney confessed to the
police, and he was charged with this crime. Later that day, the
attorney was hospitalized for stress. Jeske's attorney stayed in
the hospital for four days; released on September 23, he remained
under a doctor's care and continued to take both anti-depressant
drugs and tranquilizers under prescription.
Because Jeske's attorney believed himself temporarily
incapable of pursuing his legal practice, he and the Discipline
Counsel for the Alaska Bar Association agreed on September 28
that a trustee attorney would be appointed to oversee his
practice. See Alaska Bar Rules 30 and 31, allowing the appoint
ment of trustee counsel when an attorney is "unable to continue
the practice of law by reason of mental or physical infirmity or
illness". Bar Rule 30(b).
Because the turmoil in his life had given him little
time to prepare for Jeske's trial, and because of his continuing
stress and depression, Jeske's attorney concluded that he would
be unable to adequately represent Jeske at a trial which, by
then, was only two weeks away. He therefore obtained the State's
stipulation to continue the trial until November 6, with the time
to run against the defense for purposes of the Rule 45
calculation. This stipulation was filed on October 1, and on
October 2 the court adopted the stipulation and granted the
requested continuance.
Jeske did not know that his attorney had sought a
continuance. He found out about the continuance a day or two
later, during a telephone conversation with his attorney.
Jeske's attorney did not offer an explanation of why the trial
had been delayed, and Jeske, although he was displeased with the
delay, apparently did not press his attorney for an explanation.
A few days after this conversation, Jeske saw an an
nouncement in the newspaper that his attorney was closing his law
practice. See Alaska Bar Rule 30(e). Jeske, now aware of his
attorney's personal difficulties, decided that he did not want
the attorney to handle his case any more. Jeske therefore hired
a new attorney, James McGowan.
McGowan prepared a pleading that combined the first
attorney's motion for withdrawal with Jeske's consent to
substitute McGowan as his attorney. Jeske's first attorney
signed his portion of the document (the motion to withdraw) on
October 11, 1990. However, McGowan did not file the completed
document or his accompanying entry of appearance until November
1. That same day, McGowan filed a motion to dismiss the charges
against Jeske on the ground that Jeske had not been brought to
trial within the time limits of Criminal Rule 45.
In this motion, Jeske did not mention the stipulated
continuance; he simply asserted that he had been arrested on June
30 and that his trial was currently scheduled for November 6, the
129th day following his arrest. The State responded that Jeske's
former attorney had stipulated to a 28-day continuance of trial,
and thus the Rule 45 time limit had not yet expired. In his
reply, Jeske for the first time asserted that the stipulated
continuance was not valid because it had been entered without his
consent.
Superior Court Judge Larry C. Zervos, after listening
to the testimony of both Jeske's first attorney and Jeske
himself, found that Jeske had not been told of his attorney's
intention to seek a continuance of trial. Based upon this
finding, Judge Zervos ruled that Rule 45 had continued to run
during the stipulated continuance. Judge Zervos based his
decision on the wording of Rule 45(d)(2):
(d) Excluded Periods. The following
periods shall be excluded in computing the
time for trial:
. . .
(2) The period of delay resulting from
an adjournment or continuance granted at the
timely request or with the consent of the
defendant and his counsel.
Judge Zervos concluded that, because Jeske had not been consulted
or given a chance to object before his attorney stipulated to the
continuance of the trial, and because Rule 45(d)(2) requires the
consent of both the defendant and the defendant's attorney, the
Rule 45 clock continued to run unabated in spite of the
stipulated continuance of trial. Thus, Judge Zervos ruled, the
Rule 45 time limit had expired.
Judge Zervos also considered and rejected application
of Rule 45(d)(7), which allows tolling of Rule 45 during "other
periods of delay for good cause". The judge found that Jeske's
first attorney had not been able to proceed with trial because of
his illness. However, Judge Zervos viewed the pre-trial illness
of an attorney as an "entirely foreseeable" circumstance, not a
"unique [or] exceptional" situation. He therefore declined to
apply Rule 45(d)(7).
We reverse the superior court's decision because we
disagree with Judge Zervos concerning what is to be done when,
after a continuance has been granted, it turns out that the
defendant did not consent to it.1
Although the cases discussing Rule 45(d) often refer to
"waivers" of Rule 45, the term "waiver" is not being used in the
restricted sense of an affirmative, personal, voluntary
relinquishment of a known right. In Snyder v. State, 524 P.2d
661 (Alaska 1974), the defendant's attorney appeared in court
without him and asked for a 30-day continuance to allow the
defendant to be examined by a psychiatrist to determine his
competency to stand trial. On appeal, the defendant contended
that his attorney had no authority to waive Rule 45 in his
absence. Id. at 662-63. The Alaska Supreme Court replied that a
defendant's rights under Rule 45 were not constitutional or
fundamental rights, and that a "waiver" of these rights could be
accomplished by the actions of the defendant's attorney, without
the defendant's personal participation:
We think this contention is answered by our
decision in Clouatre where we said that Crimi
nal Rule 45 is only a "basic datum" and that
a considerably longer period could elapse
before trial without resultant unfairness or
injustice to the accused. The outer limits
of Alaska's constitutional right to a speedy
trial are not defined by Rule 45. In short,
we are of the view that our decisions pertain
ing to waiver of fundamental constitutional
rights are inapplicable, in the factual con
text of the instant case, to the Criminal
Rule 45(d)(1) excluded period issue raised
herein.
Snyder, 524 P.2d at 664. Thus, the trial court normally does not
need to secure a personal waiver from the defendant when the
defense attorney takes action or acquiesces in action that, under
Rule 45(d), stops the running of Rule 45.
While the wording of Rule 45(d)(2) apparently requires
a criminal defendant's concurrence in any delay or continuance
requested by the defense attorney, this court and the Alaska
Supreme Court have repeatedly stated that the trial court can
rely on a defense attorney's request for a continuance and need
not seek a separate, personal consent from the defendant unless
the defendant affirmatively objects to the defense attorney's
action. Henson v. State, 576 P.2d 1352, 1356 n.9 (Alaska 1978);
Yearty v. State, 805 P.2d 987, 991 (Alaska App. 1991); Machado v.
State, 797 P.2d 677, 684-85 (Alaska App. 1990). This is true
even when the defendant is not present in court to witness the
defense attorney's request for a continuance, Snyder, 524 P.2d at
663-64, or when defense acquiescence in a continuance is
manifested by the attorney's filing a statement of non-
opposition, O'Dell v. Anchorage, 573 P.2d 1381, 1384 (Alaska
1978).
Under the cases cited in the previous paragraph, the
superior court was entitled to rely upon Jeske's attorney's
stipulation to the continuance. But after the trial court had
rescheduled Jeske's trial in reliance on this stipulation, Jeske
came to court and proved that his attorney had not consulted him
before seeking the continuance -- thus rebutting the presumption
that Jeske had consented to his attorney's action. The issue
presented by Jeske's case is this: When a defendant proves that
he did not consent to a continuance requested by his attorney,
does Rule 45 nevertheless remain tolled until the day the court
makes its finding that the defendant did not consent to the
continuance? Or does the defendant's proof of non-consent
require the trial court to invalidate the previously granted
continuance and calculate Rule 45 as if the continuance had never
been requested?
Judge Zervos decided that, under these circumstances,
Rule 45(d)(2) required him to treat the continuance as invalid
from its inception and to calculate the running of Rule 45 as if
it had never been interrupted. We disagree.
When defense counsel has requested or consented to a
continuance, a judge setting the date for the defendant's trial
is entitled to rely upon the fact that the rule is tolled during
that continuance, at least until the judge is affirmatively
apprised of the defendant's objection to the continuance. Once
it is clear that the defendant has not consented and will not
consent to the continuance, Rule 45(d)(2) directs the trial judge
to restart the Rule 45 clock. But the time already elapsed must
remain excluded from the calculation of the time for trial.
The Supreme Court reached this same result under
analogous circumstances in Coffey v. State, 585 P.2d 514 (Alaska
1978). Coffey was charged with selling marijuana in Homer. At
that time, Kenai was the normal trial venue of an offense alleged
to have been committed in Homer. However, when Coffey was
arraigned, the superior court set the case for trial in
Anchorage. At the arraignment, the defense asked for a nine-week
continuance of the omnibus hearing; Coffey, both personally and
through his attorney, waived Rule 45 for these nine weeks.
Coffey at 517.
Three weeks after Coffey's arraignment, the superior
court re-examined the file and discovered that, because Coffey's
offense was alleged to have been committed in Homer, venue should
have been set in Kenai; venue was changed. Later, at the omnibus
hearing, Coffey asserted that he never would have waived Rule 45
if he had known that the case would be tried in Kenai. He also
argued that, since venue had always properly been in Kenai, the
proceedings in Anchorage (and, particularly, his waiver of Rule
45) were nullities. Coffey therefore moved for dismissal of the
case under Rule 45. Id. at 518.
The trial court ruled that Coffey could withdraw his
waiver and, if he did so, the time for trial under Rule 45 would
start to run again the next day. However, Rule 45 would remain
tolled during the time between Coffey's waiver and the day he
withdrew it. Id.
On appeal, the Supreme Court upheld the trial court's
decision:
Coffey argues that his waiver of Criminal
Rule 45 was conditional on the continuance of
venue in Anchorage and that, once venue was
set in Kenai, the waiver was automatically
revoked, thereby charging the time against
the state.
The record does not show that Coffey
waived Criminal Rule 45 on the condition that
venue would "remain" in Anchorage. ... The
condition, if it existed at the time of waiv
er, was subjective, inasmuch as it was not
brought to the attention of the court.
Coffey's argument is unpersuasive. Once
venue was set in Kenai by the order of June
25, 1975, Coffey could have moved to rescind
his waiver. His argument that affirmative
steps to protect the right to a speedy trial
are not required is inapplicable to post-
waiver situations, where affirmative steps to
withdraw a waiver may reasonably be required.
Coffey, 585 P.2d at 520-21.
Until Jeske secured a new attorney and filed his motion
to dismiss, Jeske's lack of consent to the stipulated continuance
of his trial -- like the repented waiver in Coffey -- remained
"subjective", in the sense that "it was not brought to the
attention of the court." The trial judge in Jeske's case, like
the trial judge in Coffey, was entitled to treat Rule 45 as
tolled until an event or circumstance altering that status was
affirmatively brought to the judge's attention. A contrary rule
would leave Rule 45 calculations unsettled and tentative until
the day of trial.
There is another problem with Jeske's interpretation of
the rule. Under Jeske's view, a defendant who learned that
defense counsel had requested a continuance without the defendan
t's explicit consent could wait until the time for trial
(calculated without reference to the disputed continuance) had
expired, then file a motion to set aside the continuance -- a
motion which, if successful, would result in dismissal of all
charges. Such an interpretation of Rule 45(d)(2) would give rise
to an unacceptable potential for manipulation of the rule in a
manner that thwarts the ends of justice.
We therefore hold that Judge Zervos erred when he
calculated the Rule 45 time limit as if the stipulation for a
continuance had never been filed. When a defendant asserts that
he or she never consented to a continuance obtained or stipulated
to by defense counsel, Rule 45 remains tolled until the judge
makes an affirmative finding that the defendant did not consent
to the previously ordered continuance.2
The decision of the superior court is REVERSED. This
case is REMANDED for renewed proceedings on the indictment.
_______________________________
1 Alaska Criminal Rule 45 was taken from the ABA Standards
for Criminal Justice, what is now Standard 12-2.3 (Approved Draft
1978). Subsection (c) of Standard 12-2.3 declares: "The period
of delay resulting from a continuance granted at the request or
with the consent of the defendant or his counsel" should be
excluded in computing the time for trial. (emphasis added)
The State argues that the Alaska Supreme Court, when promul
gating Rule 45(d)(2), inadvertently changed the "or" of the ABA
standard to an "and". Compare Peterson v. State, 562 P.2d 1350,
1356-58 (Alaska 1977). We find it unnecessary to decide this
issue. We assume, for purposes of deciding this case, that Rule
45(d)(2) requires the defendant's consent to any continuance
requested by defense counsel.
2 In such circumstances, Rule 45 remains tolled through the
day of the trial court's ruling; the time for trial would
normally begin to run the next day. Stobaugh v. State, 614 P.2d
767, 770 n.3 (Alaska 1980).
