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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) |
| ) Court of Appeals No. A-8798 | |
| Appellant, | ) Trial Court No. 4BE-03-854 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| CLAYTON GOTTSCHALK, | ) |
| ) | |
| Appellee. | ) No. 2052 - July 7, 2006 |
| ) | |
Appeal from the
Superior Court, Fourth Judicial District,
Bethel, Leonard R. Devaney, Judge.
Appearances: Kenneth J. Diemer, Assistant
Attorney General, and Diane L. Wendlandt,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for the Appellant. Margi Mock, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
Criminal Rule 45(c)(1) provides that the time for
bringing a defendant to trial is calculated from the date the
charging document is served upon the defendant. This case raises
the question of whether, when the defendant is in court on one
charge and is given a copy of a new indictment in a separate case
by the prosecutor at the direction of the judge, the defendant
has been served with this indictment for purposes of the speedy
trial rule. We conclude that this does not constitute service
for purposes of the rule.
Factual and procedural background
Gottschalk was convicted in 1998 of felony driving
while intoxicated and other related offenses. In 2003, Gottschalk
was on probation from these earlier convictions. Gottschalks
probation officer filed a petition to revoke Gottschalks
probation based upon information that Gottschalk had violated his
probation by consuming alcohol and driving under the influence.
Gottschalk was arrested in Bethel on the probation violations and
brought to Anchorage.
Gottschalk was brought to court on a petition to revoke
his probation. While at the courthouse, the assistant district
attorney informed the court, and Gottschalk, that Gottschalk had
been indicted in Bethel on a recent felony DUI which had been a
basis for the petition to revoke. Superior Court Judge Michael
L. Wolverton instructed the prosecutor to obtain information
about the Bethel case for Gottschalk and his attorney. In a
court proceeding on the petition to revoke on July 9, 2003, at
the direction of the court, the prosecutor gave Gottschalk and
his attorney a copy of the indictment for felony DUI in the
Bethel case.
On October 8, 2003, Gottschalk was served in an
Anchorage jail with the warrant issued by the superior court for
the felony DUI indictment. On October 9, the Anchorage court set
bail on this charge for Gottschalk and appointed the Public
Defender Agency to represent him. Gottschalk was ultimately
transported to Bethel and arraigned on the indictment on November
10, 2003. Superior Court Judge Dale O. Curda concluded that
Criminal Rule 45 had started on October 8, 2003, when Gottschalk
was served with the warrant. Gottschalks counsel objected,
arguing that he was served for Criminal Rule 45 purposes when he
received the copy of the indictment in open court on July 9.
Gottschalk filed a motion to dismiss based upon Criminal Rule 45.
Following an evidentiary hearing, Judge Leonard R.
Devaney granted Gottschalks motion to dismiss. Judge Devaney
concluded that Gottschalk was served with the charges when, at
the direction of Judge Wolverton, Gottschalk received the
charging documents in open court from the prosecution. The State
filed a petition for review challenging this decision. We
granted review. We now reverse Judge Devaneys decision granting
Gottschalks motion to dismiss.
Analysis
According to Criminal Rule 45(c)(1), the time for
bringing a defendant to trial begins running when the charging
document is served. However, the rule does not define when a
defendant is served.
Prior to 1993, the 120-day period began on 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.1 In 1993, the rule was amended at
the request of the State. The State pointed out that under the
former rule a police officer, by making an arrest, would initiate
the speedy trial rule. The State contended that the decision to
initiate a criminal prosecution should be made by a State
prosecutor, not the police. And the speedy trial period should
start only after the prosecutor had initiated charges.2
Gottschalk argues that he was served for purposes of
Criminal Rule 45 when, on July 9, the prosecutor gave him a copy
of the Bethel indictment in open court at the direction of the
judge. He argues that all of the parties were aware that he had
received a copy of the indictment in a court proceeding. He
argues that this constitutes service. Judge Devaney agreed with
Gottschalks argument.
The State argues that all it did was provide Gottschalk
with an informational copy of the indictment because the
indictment was relevant to the petition to revoke Gottschalks
probation. The State points out that Gottschalks attorney had
been appointed to represent him only in the probation revocation
proceeding, not on the Bethel DUI indictment. And Judge
Wolverton took no action on the indictment. He did not arraign
Gottschalk, set bail, or appoint an attorney to represent him on
the new charge. The State argues that, under the criminal rules,
the court had to assert personal jurisdiction over Gottschalk on
the Bethel indictment in order to start the prosecution and start
Criminal Rule 45. The State argues that to start Criminal Rule
45, Gottschalk needed to be formally served with the charges
under Criminal Rule 4 or Criminal Rule 9, or formally arraigned
under Criminal Rule 10. The State argues that, just because a
prosecutor, police officer, or other agent of the state
informally provides a copy of charges to a defendant, the State
has not formally commenced a prosecution as required by the
criminal rules.
Gottschalks case highlights a defect in Criminal Rule
45. Under the rule, as long as the State did not serve him with
the Bethel indictment, the State could hold Gottschalk for an
indeterminate period of time on the probation revocation petition
without ever starting Criminal Rule 45. The superior court had
issued a warrant for Gottschalks arrest based upon the Bethel
indictment. The State informed us at oral argument that if
Gottschalk were to be released on the petition to revoke
probation, the Department of Corrections would have asked the
superior court to schedule a hearing at which Gottschalk could be
served with the Bethel warrant.
Professor LaFave points out that Alaska is the only
state to have a speedy trial rule which is dependent on the
service of the charging document. Other states initiate their
speedy trial time periods from arrest (Arizona), entry of plea
(Colorado), indictment or information (Idaho), arraignment
(Kansas), or first appearance (Maryland) (for example).3 Thus,
other states have not had to address the issue of when the
charging document is served for purposes of a speedy trial rule.
The purpose of Criminal Rule 45 is to protect a
defendants right to have the criminal charges which the State
has brought against him resolved within a reasonable period of
time. Although the particular time period is to some degree
arbitrary, the purpose of the rule is to set an exact time when
the rule starts and an exact time when it ends. Unfortunately,
the rule does not establish when a charging document is served.
This flaw in the rule creates uncertainty about when the time
period begins.
Gottschalk has a strong argument that he was served
when the State gave him a copy of the charging document in court
at the direction of the judge. There is an argument that the
Bethel District Attorneys Office had constructive notice that
Gottschalk would be given a copy of the indictment. But the
logic of Gottschalks argument would extend to many other
situations. Under the argument he advances, if a police officer
or correctional officer, who was dealing with Gottschalk on an
unrelated matter, gave him an informational copy of the
indictment, Gottschalk would have been served for purposes of
starting Criminal Rule 45. Or, in a civil case involving child
custody, an assistant attorney general might introduce a copy of
Gottschalks indictment, starting the rule. And yet the
prosecuting authorities in Bethel, where the case originated,
would probably not have notice that the Criminal Rule 45 clock
had started.
We conclude that Criminal Rule 45 must have a clear and
exact starting date. In order to eliminate any confusion as to
when the Criminal Rule 45 clock starts, we believe that the
defendant must be formally served under Criminal Rules 4 or 9 or
formally arraigned on the charges under Criminal Rule 10. We do
not believe that the criminal rules authorize informal service
such as occurred in Gottschalks case when he was handed an
informational copy of the indictment.
Gottschalk has not made any showing that he was
prejudiced by the States failure to formally serve him with the
Bethel felony DUI charge. He had an attorney to represent him on
the petition to revoke and to assist him in preparing his
defense. Gottschalk was already aware of the possibility of the
felony DUI charge because of the petition to revoke probation and
the discovery that he had received because of the petition.
Conclusion
We accordingly conclude that for purposes of Criminal
Rule 45, Gottschalk was not served in this case when the State
gave him a copy of the indictment in court on the petition to
revoke his probation. Rather, he was served, for purposes of
Criminal Rule 45, when he was formally served with the charge on
October 8, 2003. Therefore, the State did not violate Criminal
Rule 45. We reverse the superior courts order dismissing the
case.
REVERSED and REMANDED.
MANNHEIMER, Judge, concurring.
I agree with my colleagues that Criminal Rule 45 was
not violated in this case. I further agree that the facts of
this case demonstrate that there is a problem with the way that
Rule 45(c)(1) defines the starting date for the speedy trial
clock.
Background of the provision at issue in this case
Criminal Rule 45 specifies the time limit for
bringing a defendant to trial. Prior to 1993, the
starting date for calculating Rule 45 was the date [on
which] the defendant [was] arrested [or] initially
arraigned, or ... the date [on which] the charg[ing
document was] served upon the defendant, whichever
[was] first. But, as explained in the majority
opinion, the rule was amended in 1993 to address a
concern voiced by the Department of Law.
The Departments concern was that police
agencies might trigger Rule 45 by making an arrest, or
even by filing a complaint, in circumstances where the
Department had not yet determined that the case should
be prosecuted, or that it could be prosecuted
successfully. The Department suggested that the Rule
45 starting date should hinge on the formal initiation
of the charge under the assumption that this would not
happen unless and until the Department had screened and
approved the charging decision.
The Criminal Rules Committee recommended this
change to the Alaska Supreme Court, and the supreme
court approved the change in April 1993. See Supreme
Court Order No. 1127, which took effect July 15, 1993.
As a result of this 1993 amendment, Rule 45(c)(1) now
states that, in most instances, the starting date for
calculating Rule 45 is the date on which the charging
document is served upon the defendant.
The legal distinction between receiving a copy of a
document and being served with that document
When we speak of serving a document that
initiates a lawsuit, we mean something different from
simply handing or mailing a copy of the document to the
person affected (acts that normally would be sufficient
to constitute service of a later pleading, once the
lawsuit has begun). The law imposes special rules
governing the service of the initial complaint because
that act of service must accomplish two distinct
things: not only (1) notifying the defendant of the
allegations against them, but also (2) establishing the
courts jurisdiction over the person of the defendant
so that the court can lawfully direct the defendant to
respond to the allegations in the complaint and, if
those allegations are ultimately proved, so that the
court can issue a judgement that will bind the
defendant. In civil cases, unless there is
proper service of a summons and a complaint as
specified in Alaska Civil Rule 4, the court lacks
personal jurisdiction over the defendant.1 And if the
court lacks personal jurisdiction, any judgement the
court enters against the defendant is void.2
Personal jurisdiction over the defendant is
also crucial in criminal cases. As in civil cases, the
requisite personal jurisdiction can be obtained by the
service of a summons and a complaint. The manner for
doing this is prescribed in Alaska Criminal Rule 4 and
Alaska Civil Rule 4(d).3 But in many (if not most)
criminal cases, the court obtains jurisdiction over the
defendants person by literally seizing the defendant
either pursuant to a warrant as provided in Criminal
Rule 4,4 or by taking custody of the defendant
following the defendants arrest without a warrant (in
those instances where a police officer or a private
person is authorized to arrest a suspect without a
warrant).5
When personal jurisdiction over the defendant
is obtained by service of a summons and a complaint,
the defendant receives the charging document at the
same time that personal jurisdiction is established.
But when personal jurisdiction over the defendant is
obtained by arrest, the charging document is normally
not served at the same time.
When an arrest is made without a warrant, the
charging document will, of necessity, be drawn up
later. Criminal Rule 5(a)(5) acknowledges this fact by
expressly directing the government to promptly file a
written complaint: When[] a person arrested without a
warrant is brought before a judge or magistrate [for
their initial appearance], a complaint shall be filed
forthwith.
But even when a complaint has already been
filed, and the arrest is conducted pursuant to a
warrant issued on that complaint (see Criminal Rule
4(a)(1)), the arrest will generally take place before
the defendant receives a copy of the complaint. Under
Rule 4(c)(3), the officers making an arrest upon a
warrant need not possess a copy of the warrant, much
less a copy of the complaint. Criminal Rule 4(c)(3)
requires only that the officers inform the defendant
that a warrant has indeed been issued, and upon what
charge. If the defendant asks to see a copy of the
warrant, and the arresting officers do not have one,
Rule 4(c)(3) states that the police shall show the
warrant to the defendant as soon as possible.
In these cases, defendants will sometimes
receive a copy of the complaint before they go to court
for their initial appearance. But Criminal Rule
5(c)(2) declares that the defendant must receive a copy
of the complaint at their initial appearance if no copy
has previously been delivered to them.
As a result of these various provisions of
the Criminal Rules, a person who is arrested (with or
without a warrant) and who remains in custody may wait
as long as 24 hours before seeing a copy of the
complaint. (Criminal Rule 5(a)(1) establishes 24 hours
as the outer time limit for conducting the defendants
initial appearance before a judicial officer.) But
with the service of that complaint, the court obtains
full authority to entertain the criminal proceeding
against the defendant.6
Thus, there are two crucial aspects to the
initiation of a criminal prosecution: the assertion of
personal jurisdiction over the defendant, and the act
of providing the defendant with a copy of the charging
document. When the prosecution is initiated by the
service of a summons and complaint, the assertion of
personal jurisdiction (i.e., the service of the
summons) occurs contemporaneously with the defendants
receipt of a copy of the complaint. When the
prosecution is initiated by an arrest, the assertion of
personal jurisdiction (i.e., the physical seizure of
the defendants person) precedes the defendants receipt
of a copy of the complaint by as much as 24 hours. But
in either instance, it is the assertion of personal
jurisdiction that makes the defendants receipt of the
charging document a service of that document.
The problem in this case: the superior court had
physical custody of the defendant, and personal
jurisdiction over him, but on a different matter
In my discussion of instances where the court
obtains personal jurisdiction over the defendant
through an arrest, the implicit assumption was that the
defendants arrest was conducted for the purpose of
holding the defendant to answer one or more criminal
charges arising from the incident that provided the
basis for the arrest.
AS 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. Thus,
not all acts of taking a person into custody constitute
an arrest for there are times when people are taken
into custody for reasons other than holding them to
answer for a crime. And in such instances, this Court
has repeatedly held that the act of taking a person
into custody does not constitute the commencement of a
criminal proceeding.
For example, in Lindsay v. State, 698 P.2d
659 (Alaska App. 1985), the police interviewed the
defendant concerning his potential involvement in a
robbery. The police did not formally arrest Lindsay,
and he was allowed to return home after the interview.7
However, this Court ruled that, given the circumstances
of the interview, Lindsay had been in custody for
Miranda purposes.8 The next question was whether this
custodial interview should be deemed an arrest for
purposes of triggering Criminal Rule 45. Based on the
definition of arrest codified in AS 12.25.160, we
concluded that the answer was no because when the
police took Lindsay into custody, they did not do so
for the purpose of holding him to answer for a crime.
Id., 698 P.2d at 663.
We reached a similar conclusion in Cannizzaro
v. State, 765 P.2d 110 (Alaska App. 1988). The
defendant in Cannizzaro failed to appear for a
scheduled court hearing on his motion to modify his
sentence, and the judge issued a bench warrant for the
defendants arrest.9 Cannizzaro was picked up on other
charges and, while he was in jail, he was served with
this bench warrant.10
A little over three months later, a grand
jury indicted Cannizzaro on a charge of failure to
appear, based on his failure to appear at the
sentencing hearing. Cannizzaro was arraigned on this
charge, and his trial was scheduled for three months in
the future.11 But a week before his scheduled trial,
Cannizzaro moved to dismiss the charge on Rule 45
grounds. He contended that the service of the bench
warrant had constituted the commencement of the
criminal proceeding for failure to appear, and that
therefore the State had exceeded the allowed time for
bringing him to trial.12
We rejected Cannizzaros argument:
[The] bench warrant did not charge
Cannizzaro with a crime or command his arrest
for the commission of a crime. Cannizzaro
was not held to answer for a new charge [when
he was] arrest[ed] on the warrant. Rather,
his arrest [served] only to secure his
presence for [the] sentencing proceedings he
had previously missed. Because Cannizzaro
was not arrested for purposes of Criminal
Rule 45 when he was served with the bench
warrant ... , his ... arraignment on the
indictment was the event that triggered the
120-day speedy trial period.
Cannizzaro, 765 P.2d at 112.
The problem in the present case is
that even though Gottschalk was arrested, and
even though his arrest was based, in part, on
his act of driving under the influence,
Gottschalk was not arrested so that he could
be held to answer a charge of driving under
the influence (or any criminal charge).
Rather, Gottschalk was arrested for violating
his probation.
Gottschalk was on probation from an
Anchorage criminal case (File No. 3AN-98-4387
Cr). In March 2003, Gottschalk violated his
probation by (1) leaving his region of
residence without his probation officers
permission, (2) consuming alcohol, and
(3) driving a motor vehicle under the
influence. Gottschalk was arrested for these
probation violations, and he was brought to
Anchorage for probation revocation
proceedings.
In this way, Gottschalks case is
similar to Cannizzaro. As was the case in
Cannizzaro, some of Gottschalks post-
sentencing conduct constituted a new crime,
and it was foreseeable that he might be
charged with that crime. But Gottschalks
arrest in March 2003 was not done for the
purpose of holding him to answer a new
criminal charge. Rather, Gottschalk was
arrested because there was probable cause to
believe that he had violated the terms of his
probation in the 1998 Anchorage case.
Three and a half months later, in
early July 2003, while Gottschalk was in jail
in Anchorage, a Bethel grand jury indicted
him for his act of driving under the
influence, and the superior court issued an
arrest warrant based on this indictment. A
member of the Anchorage District Attorneys
office faxed a copy of the Bethel indictment
to Gottschalks attorney, and Gottschalk
personally received a copy of this Bethel
indictment on July 9, 2003, when the parties
were in court in connection with the
Anchorage probation revocation proceeding.
But Gottschalk was not arrested on the Bethel
indictment until October 8, 2003 (when he was
served with the superior courts warrant), and
Gottschalks initial appearance on the Bethel
indictment did not occur until the following
day. (This initial appearance took place in
the Anchorage superior court.) Thus, not
until October did the superior court
establish personal jurisdiction over
Gottschalk to try him for the crime charged
in the indictment.
Criminal Rule 45(c)(1) does not
expressly speak of personal jurisdiction.
Rather, the rule says that the time for
bringing the defendant to trial is calculated
from the date on which the charging document
is served on the defendant. But, as I have
explained here, service of a criminal charge
requires not only delivery of a copy of the
charging document but also the establishment
of personal jurisdiction over the defendant.
Just as a potential defendant in a
civil lawsuit might learn of the lawsuit and
might even obtain a copy of the complaint
without ever being properly served, so too a
defendant in a criminal proceeding might
obtain a copy of the complaint or indictment
without ever being summoned or arrested. In
both the civil and the criminal context, even
though the defendant might possess a copy of
the complaint, the court would be powerless
to proceed against the defendant until,
through the act of summons or arrest, the
court established jurisdiction over the
defendants person.
That was the situation in
Gottschalks case when he received a copy of
the Bethel indictment on July 9th.
Gottschalk now had a copy of the charging
document, but he was not served in any
meaningful sense because the superior court
had yet to establish personal jurisdiction
over Gottschalk in the Bethel criminal case
jurisdiction that was necessary before the
court could call upon Gottschalk to answer
the Bethel indictment.
For these reasons, I concur with my
colleagues that Rule 45 was not violated in
Gottschalks case. This is not to say,
however, that I think this result is a good
one. Gottschalks case highlights a problem
with the present formulation of Rule
45(c)(1).
Normally, there is no problem with
having the Rule 45 starting date hinge on the
service of the charging document because, in
a typical case, the State will not have
physical custody of the defendant when the
State decides to file a criminal charge, and
thus the State will be motivated to promptly
establish personal jurisdiction over the
defendant through either the service of a
summons or an arrest.
But when, as in Gottschalks case,
the defendant is already in custody in
connection with another criminal proceeding,
and the State files new charges, there is no
pressure on the State to summon or arrest the
defendant on the new charges, or to have the
defendant arraigned on the new charges.
Unless the defendant learns of the new
charges and affirmatively demands arraignment
on those charges, the Rule 45 clock might not
be triggered for months or even years if,
for instance, the defendants new criminal
conduct constitutes a violation of the
defendants probation in an earlier case, and
the defendant is sentenced to serve a lengthy
term of imprisonment as a result of this
probation violation.
For this reason, I think that the
supreme court should direct the Criminal
Rules Committee to consider how Criminal Rule
45(c)(1) might be amended to cure this
problem.
_______________________________
1 Former Alaska Criminal Rule 45(c)(1) (1992).
2 See Supreme Court Order No. 1127 (eff. July 15, 1993)
(amending Rule 45); Cynthia Hora, Memorandum on Criminal Rule 45
Revisions (April 6, 1992) (suggesting that 120-day period should
not begin until defendant is held to answer for charge, and
noting concern that former Rule allowed period to begin upon
actions of police as opposed to prosecutors).
3 4 Wayne R. LaFave et al., Criminal Procedure 18.3(c) at
698 n.65 (2d ed. 1999).
1 Department of Corrections v. Kila, Inc., 884 P.2d 661, 662
(Alaska 1994); Valentine v. Roberts, 1 Alaska 536, 539, 546-
49, 552 (D. Alaska 1902).
2 Kila, 884 P.2d at 662; Valentine, 1 Alaska at 546-49, 552.
3 Civil Rule 4(d) applies to the service of a summons in a
criminal case because Criminal Rule 4(c)(3) declares that a
criminal summons may be served in any ... manner provided
for service of process in civil actions.
4 See In re Hern ndez, 5 Alaska 421, 433 (D. Alaska Terr.
1915): [T]he record shows that [the judge] got jurisdiction
of the [defendants] person by having him arrested on [a]
warrant and brought before him.
5 See AS 12.25.010 040.
6 See Drahosh v. State, 442 P.2d 44, 45-46 (Alaska 1968).
7 Lindsay, 698 P.2d at 660.
8 Id. at 661.
9 Cannizzaro, 765 P.2d at 110.
10 Id.
11 Id.
12 Id. at 110-11.
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