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THE COURT OF APPEALS OF THE STATE OF ALASKA
EIRIK P. PETERSEN, )
) Court of Appeals No. A-3394
Appellant, ) Trial Court No. 3AN-S86-7914CR
)
v. ) O P I N
I O N
)
STATE OF ALASKA, )
) [No. 1247 - September 4, 1992]
Appellee. )
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Joan M. Katz, Judge.
Appearances: R. Scott Taylor, Kevin F.
McCoy, Assistant Public Defenders, and John
B. Salemi, Public Defender, Anchorage, for
Appellant. W. H. Hawley, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
Eirik P. Petersen was charged with one count of sexual
abuse of a minor in the first degree, AS 11.41.434, and two
counts of sexual abuse of a minor in the second degree, AS
11.41.436. The first-degree sexual abuse charge and one of the
second-degree sexual abuse charges related to Petersen's six-year-
old niece, M.B. The remaining second-degree sexual abuse charge
related to another six-year-old niece, S.K. The second-degree
sexual abuse charge involving M.B. was dismissed. Petersen was
convicted by a jury of the second-degree sexual abuse charge
relating to S.K.; he was acquitted of the first-degree sexual
abuse charge relating to M.B. Petersen appeals, contending that
the trial court erred in failing to dismiss his case for
violation of Alaska's speedy trial rule. Petersen also contends
that the court erred in failing to dismiss the count of the
indictment relating to S.K. due to the prosecution's reliance on
hearsay before the grand jury. Finally, Petersen argues that the
court erred in refusing to sever the charges involving M.B. from
the charge involving S.K. We affirm.
Petersen was arrested on November 10, 1986, and
initially entered a plea of not guilty. On May 11, 1987, he
changed his plea to no contest. While awaiting sentencing,
Petersen moved to withdraw the no contest plea and reinstate his
original plea of not guilty. His motion was granted on August 3,
1987. Eighteen days later, on August 20, 1987, Petersen moved
for a continuance and entered a waiver of speedy trial for the
resulting period of delay.
On October 2, 1987, the state moved for reconsideration
of the order allowing Petersen to withdraw his no contest plea.
The court granted the state's motion for reconsideration on
October 22, 1987; Petersen's no contest plea was thus reinstated.
Almost nine months later, on August 11, 1988, Petersen
was again allowed to withdraw his no contest plea (Petersen's
sentence had not yet been imposed). On August 22, 1988, Petersen
moved for a continuance until December 5, expressly waiving his
right to a speedy trial until that time.
Thereafter, Petersen filed motions to dismiss and to
sever. The court eventually dismissed the two counts relating to
M.B. pursuant to an oral order, January 24, 1989, signed on April
5, 1989. The state reindicted on these counts on February 9,
1989. After reconsideration, the court reinstated the first-
degree sexual abuse charge relating to M.B., and denied
Petersen's motion to sever the charges relating to M.B. and S.K.
On January 23, 1989, Petersen moved to dismiss his
charges, alleging a violation of his right to be tried within 120
days of his arrest, as provided for under Alaska Rule of Criminal
Procedure 45. Judge Katz denied Petersen's motion; allowing for
various periods excludable under Alaska R. Crim. P. 45(d), Judge
Katz calculated that seventeen days remained before the 120-day
speedy trial period expired.
Petersen challenged this ruling on appeal, arguing that
Judge Katz erred with respect to several excluded periods of
delay. Petersen maintained that, with proper computation of
excluded periods, 131 days had elapsed -- eleven days over the
allowable speedy trial limit. The state disputed Petersen's
computation of excludable delay, arguing that a total of only 94
days had elapsed under the speedy trial rule.
In their original briefs, however, both Petersen and
the state assumed that the speedy trial rule had commenced
running immediately on both occasions when the superior court
allowed Petersen to withdraw his no contest plea. We directed
supplemental briefing on the following issue:
When the defendant in a criminal case
withdraws a plea of no contest or guilty,
should the speedy trial rule be deemed to
commence running again on the date withdrawal
is allowed, or should a reasonable period of
time be excluded to allow the case to be
restored to the calendar and to accommodate
the state's need to marshall its resources
and prepare anew for trial?
Having reviewed the supplemental briefs, we conclude
that this case is controlled by our decision in Sundberg v.
State, 657 P.2d 843 (Alaska App. 1982), modified on reh'g, 667
P.2d 1268 (Alaska App. 1983). Sundberg dealt with the 120-day
speedy trial period in the context of a case that had been
interrupted twice by petitions for interlocutory appellate review
by the Alaska Supreme Court. On appeal, this court considered
the amount of delay properly excludable as a result of the
petitions, an issue that required us to construe Alaska R. Crim.
P. 45 (d)(1), which provides:
(d) Excluded Periods. The following
periods shall be excluded in computing the
time for trial:
(1) The period of delay resulting from
other proceedings concerning the defendant,
including but not limited to motions to
dismiss or suppress, examinations and
hearings on competency, the period during
which the defendant is incompetent to stand
trial, interlocutory appeals, and trial of
other charges. . . .
We interpreted the statutory phrase "delay resulting
from other proceedings concerning the defendant" to encompass not
only the actual period when the petitions for review in Sundberg
were pending, but also "all subsequent delay which [was]
occasioned by and attributable to" the petitions. Sundberg, 657
P.2d at 846 (quoting Russell v. Anchorage, 626 P.2d 586, 589
(Alaska App. 1981)).
Our original Sundberg opinion held that the state would
be required to present evidence in each case establishing the
"specific period of time [that] was necessary to gather its
witnesses and proceed to trial." Sundberg, 657 P.2d at 846. We
concluded that, absent such evidence, no period could be excluded
beyond the time during which the petition for review was actually
pending. Id. In dissent, Judge Coats argued for an automatic
thirty-day exclusion:
[A] thirty-day period of delay in addition to
the time the case was actually pending in the
supreme court would be a reasonable period of
additional delay to attribute to that
petition for review. I conclude that the
trial judge could assume this period of delay
resulted from the . . . petition for review
without any additional proof from the state.
Id. at 849 n.1.
Following a petition for rehearing, we modified our
original opinion, adopting the position originally advocated in
Judge Coats' dissent. We held that, in the absence of specific
proof, a thirty-day period in addition to the time during which
each of Sundberg's petitions was pending could properly be
excluded under Alaska R. Crim. P. 45(d)(1). Sundberg, 667 P.2d
at 1270. In support of this conclusion, we stated:
Common sense leads us to conclude that a
trial court cannot immediately plug a case
into its trial calendar after a remand. Some
time is needed to ensure that the remanded
case is worked into the trial calendar; the
calendar may already contain a number of
criminal cases equally entitled to
consideration under Criminal Rule 45. In
addition, the prosecution will need a
reasonable time to marshall its witnesses,
whether local or out of state, and adjust the
remanded case to its own calendar of criminal
cases, some of which may have Criminal Rule
45 claims.
Id.
The circumstances of the present case are directly
analogous to those in Sundberg, and we see no reason to reach a
result different from the one we reached there. Petersen
attempts to distinguish Sundberg by pointing out that the present
case involves delays resulting from withdrawal of a no contest
plea, not from the filing of a petition for review. This is a
distinction without a difference. Petersen's case was twice
interrupted by the entry of no contest pleas, which effectively
terminated active prosecution of his charges. Both interruptions
were for significant periods of time. Here, as in Sundberg, it
would be unreasonable to expect the trial court, upon
reinstatement of active prosecution, to be capable of immediately
reinstating Petersen's case on the trial calendar. And here, as
in Sundberg, we believe that "a reasonable time should be allowed
the court and prosecution to get the case back on the calendar
before Criminal Rule 45 begins to run. . . ." Sundberg, 667 P.2d
at 1270.
Petersen argues that no time beyond the date upon which
his no contest pleas were withdrawn should be excluded absent
proof that withdrawal of the pleas actually necessitated the
delay. This argument, however, is virtually identical to the
argument that we considered and rejected on rehearing in
Sundberg. When a defendant is allowed to reinstate a plea of not
guilty a substantial period of time after entering a plea of
guilty or no contest, "it seems clear that at least an additional
thirty-day period of time should be allowed to restart the
proceedings. . . ." Sundberg, 667 P.2d at 1270.1 To hold
otherwise would, in our view, serve only to discourage trial
judges from permitting defendants to withdraw pleas of guilty or
no contest, and to encourage unnecessary, delay-generating
litigation on the appropriate period of exclusion in each case of
a plea withdrawal.
Applying the Sundberg rationale to the circumstances of
the present case, we conclude that Petersen's speedy trial right
was not violated. Petersen's speedy-trial computation assumes
that, on both occasions when the court allowed him to withdraw
his plea of no contest, the 120-day period began to run
immediately.
By Petersen's own reckoning, no more than 131 days of
unexcluded delay occurred prior to his trial. Even assuming
Petersen is correct in all other aspects of his computation,
deducting the additional periods excludable under Sundberg brings
Petersen's case well within the permissible 120-day speedy-trial
limit.2 Accordingly, the trial court did not err in denying
Petersen's motion to dismiss on speedy trial grounds.
Petersen's two remaining claims require only brief
discussion. Petersen claims that the superior court erred in
refusing to dismiss the count of his indictment relating to S.K.
because the state presented the grand jury with a video tape of
an interview with S.K., instead of live testimony. The superior
court's order denying the motion to dismiss this charge was based
on the court's conclusion that the video tape was sufficiently
reliable and corroborated to warrant admission before the grand
jury under AS 12.40.110(a):
Hearsay evidence in prosecutions for sexual
offenses. (a) In a prosecution for an
offense under AS 11.41.410 - 11.41.440 or
11.41.455, hearsay evidence of a statement
related to the offense, not otherwise
admissible, made by a child who is the victim
of the offense may be admitted into evidence
before the grand jury if
(1) the circumstances of the statement
indicate its reliability;
(2) the child is under 10 years of age
when the hearsay evidence is sought to be
admitted;
(3) additional evidence is introduced to
corroborate the statement; and
(4) the child testifies at the grand
jury proceeding or the child will be
available to testify at trial.
Having reviewed the record, we are satisfied that the superior
court did not abuse its discretion in determining the
admissibility of this evidence before the grand jury. See, e.g.,
Murray v. State, 770 P.2d 1131, 1136 (Alaska App. 1989). Cf. In
the Matter of A.S.W. and E.W., ___ P.2d ___, Op. No. 3847
(Alaska, May 29, 1992).
Petersen further contends that the superior court erred
in refusing to sever the charge relating to S.K. from the charges
relating to M.B. In our view, however, the issue is controlled
by Coleman v. State, 621 P.2d 869, 874-75 (Alaska 1980). At the
time the trial court issued its order denying Petersen's motion
to sever, Petersen was apparently contemplating a defense of
accident or inadvertence to the second-degree sexual abuse
charges. Petersen expressly declined the court's invitation to
stipulate that he did not intend to rely on such a defense. For
this reason, under Coleman, the court did not abuse its
discretion in ordering continued joinder.3 Petersen ultimately
decided not to defend on the basis of accident or inadvertence.
However, at no point did he renew his request for severance.
Under the circumstances, the trial court's failure to order
severance sua sponte did not amount to plain error. Cf. United
States v. Jordan, 602 F.2d 171 (8th Cir. 1979).
The judgment of conviction is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. Relying on Russell v. Anchorage, 626 P.2d 586 (Alaska
App. 1981), the state argues that the 120-day speedy trial period
should commence running anew when a defendant is allowed to
withdraw a plea of guilty or no contest. For the reasons
expressed in our initial opinion in Sundberg, 657 P.2d at 846-48,
we decline to hold that reinstatement of a not guilty plea should
automatically trigger a new 120-day period. We nevertheless
note that our adoption in the present case of 30 days as a
presumptively reasonable period of additional delay assumes the
absence of specific evidence justifying exclusion of a greater
period. In Russell, the defendant failed to appear for court. A
substantial period of time elapsed before his eventual arrest on
a bench warrant. We held that the specific circumstances of the
case justified commencement of a new 120-day period. Similarly,
in cases involving withdrawal of a no contest or guilty plea, we
would not foreclose the exclusion of a period in excess of 30
days under Alaska R. Crim. P. 45(d)(1) if exclusion of an
extended period were supported by case-specific evidence.
2. Petersen's first motion to withdraw his no contest plea
was granted on August 3, 1987. Eighteen days later, on August
21, Petersen moved for a continuance and entered into an express
waiver tolling the 120-day speedy trial period from that date
forward. Under Sundberg, the eighteen day period between August
3 and August 21 must also be excluded as "delay resulting from
other proceedings concerning the defendant." Alaska R. Crim. P.
45(d)(1). Similarly, Petersen's second motion to withdraw his no
contest plea was granted on August 11, 1988. Eleven days later,
on August 22, Petersen moved for a continuance, thereby tolling
the speedy trial rule. The eleven days between August 11 and
August 22 must also be excluded under Sundberg.
3. Petersen points out that a claim of accident or
inadvertence is unavailable to a defendant charged with sexual
abuse of a minor in the first degree. See Pletnikoff v. State,
719 P.2d 1039, 1044 n.4 (Alaska App. 1986). On this basis, he
contends that joinder could not properly have been based on his
anticipated reliance on a defense of accident or inadvertence.
However, Petersen would not have been barred from raising a
defense of accident or inadvertence to the charge of second-
degree sexual abuse involving S.K. Evidence of his abuse of M.B.
would be admissible to counteract such a defense. Although the
unavail- ability of an accident defense to the first-degree
sexual abuse charge involving M.B. would have rendered evidence
of his abuse of S.K. irrelevant and not cross-admissible as to
that charge, and would thereby arguably have justified severance,
Petersen's acquittal on the first-degree sexual abuse charge
renders any error harmless.
