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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JEREMIAH MIGUEL PEREZ,
Court of Appeals No. A-13666
Petitioner, Trial Court No. 3AN-19-04280 CR
v.
O P I N I O N
STATE OF ALASKA,
Respondent. No. 2736 - November 18, 2022
Petition for Review from the Superior Court, Third Judicial
District, Anchorage, Kevin M. Saxby, Judge.
Appearances: John M. Murtagh, Attorney at Law, Anchorage,
under contract with the Office of Public Advocacy, for the
Petitioner. Hazel C. Blum, Assistant Attorney General, Office
of Criminal Appeals, Anchorage, and Clyde "Ed" Sniffen Jr.,
Acting Attorney General, Juneau, for the Respondent.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judges.
Judge ALLARD, writing for the Court.
Judge HARBISON, concurring.
In May 2019, an Anchorage grand jury indicted Jeremiah Miguel Perez and
eight co-defendants on an eighty-three count indictment alleging a series of felony
property crimes. At Perez's arraignment, the trial court appointed the Alaska Public
----------------------- Page 2-----------------------
Defender Agency to represent him. Despite this appointment, the Public Defender
Agency did not assign an individual attorney to represent Perez for over five months.
During those five months, the court repeatedly continued Perez's case and tolled the
Alaska Criminal Rule 45 speedy trial clock at the request of various assistant public
defenders who were in the courtroom when the court called Perez's case. Three of those
public defenders noted that there was a potential conflict of interest in the Agency's
representation of Perez because the Agency had also been appointed to represent some
of Perez's co-defendants. Over time, the Agency withdrew from representing Perez's
co-defendants so that ultimately the Agency was only representing Perez.
In October 2019, an individual assistant public defender finally filed an
entry of appearance in Perez's case. Approximately a month later, the Public Defender
Agency moved to withdraw, citing a conflict of interest, and a contract attorney with the
Office of Public Advocacy entered his appearance. That attorney subsequently filed a
motion to dismiss under Criminal Rule 45. In the motion, the attorney asserted that the
various assistant public defenders who had requested continuances in Perez's case were
not authorized to do so because of the "obvious" conflict of interest caused by the
Agency's simultaneous representation of multiple co-defendants. The attorney argued
that the trial court had therefore erred in tolling Perez's Rule 45 time based on those
continuance requests, and that Perez's case should be dismissed with prejudice because
the Rule 45 time for a speedy trial had otherwise run.
The trial court denied the motion to dismiss, finding that the various public
defenders had apparent authority to waive Rule 45 time on Perez's behalf. This petition
for review followed.
Because the record in this case affirmatively indicates that the tolling of
Rule 45 was done with Perez's knowledge and consent, we conclude that the motion to
dismiss was properly denied. We nevertheless granted this petition and are issuing this
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decision to ensure that trial courts recognize their own duty to act when a defense agency
does not act diligently to enter an appearance or resolve a potential conflict.
As we emphasized in a recent opinion, "The Constitution's guarantee of
1
assistance of counsel cannot be satisfied by mere formal appointment." Thus, when a
trial court becomes aware that a defendant who is represented by public counsel has not
been assigned an individual attorney, the trial court must take affirmative steps to ensure
that the situation is immediately rectified. Likewise, when the Public Defender Agency
informs a trial court that it may have a conflict of interest, the court should actively
monitor the case to ensure that the potential conflict is resolved, or substitute counsel
appointed, within a reasonable period of time.
Background facts and proceedings
On May 2, 2019, an Anchorage grand jury returned an eighty-three count
indictment. The indictment charged nine defendants, including Perez, with a series of
felony thefts and burglaries that resulted in over $25,000 worth of stolen property. Perez
was a rraigned on the twenty-six counts t hat p ertained to him on May 6, 2019. At the
arraignment, the trial court appointed the Alaska Public Defender Agency to represent
Perez. The assistant public defender who was present at that arraignment waived reading
of the indictment and advisement of rights and entered not guilty pleas on Perez's behalf.
On May 28, the grand jury returned a supplemental indictment in the nine-
co-defendant case. Perez was arraigned on the additional count that pertained to him on
May 31, 2019. The assistant public defender who was present at the arraignment
informed the court that the Agency had been appointed to represent multiple co-
1 Sackett v. State, 518 P.3d 289, 292 (Alaska App. 2022) (quoting Avery v. Alabama ,
308 U.S. 444, 446 (1940)).
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defendants and that there was an ongoing "evaluation of the conflict" to determine which
case the Agency would retain.
On June 10, the trial court conducted the first pretrial conference. Five of
the nine co-defendants were present. (The other four co-defendants had outstanding
bench warrants.) Three of the five co-defendants were still represented by the Public
Defender Agency. No entry of appearance had been filed for Perez. At this point, Perez
had been in custody for more than a month on this case.2
The assistant public defender who was present at the pretrial conference
informed the court that the Agency was currently appointed to represent Perez and two
other co-defendants (Blake Millhouse and William Ratliff), but there were conflict issues
with the multiple defendants that would need to be resolved. The attorney noted that
both Millhouse and Ratliff had been assigned assistant public defenders but Perez had
not yet been assigned an attorney. The attorney suggested that the cases be set for the
next available pretrial conference. The court responded that the next available
conference was July 8, and that 39 days had run under Rule 45. The attorney stated that
this was "okay" with Ratliff, Perez, and Millhouse.
Perez was present in the courtroom when the assistant public defender said
that Perez and the other co-defendants were "okay" with the continuance to July 8. Perez
was also present when the court stated that 39 days of the Rule 45 speedy trial time had
run and that the speedy trial time would toll until the next pretrial conference on July 8.
On July 8, the court held the next pretrial conference. At this point, the
Public Defender Agency only represented two of the co-defendants - Perez and Ratliff.
2 We note that it appears from the record that Perez may have also been in custody at
the same time on a separate, unrelated case.
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----------------------- Page 5-----------------------
(Conflict counsel had been appointed for Millhouse.) But there was still no entry of
appearance for Perez. Perez had been in custody for two months on this case.
At the outset of the July 8 hearing, an assistant public advocate who was
representing one of the other co-defendants informed the court that Perez appeared to be
unrepresented. The judge then asked Perez if he had an attorney, and Perez responded,
"Not so far, your Honor." Instead of taking affirmative steps to determine why Perez
remained without an assigned attorney more than two months after his initial
arraignment, the court simply "appointed" the Public Defender Agency (which had
already been appointed) and asked that an attorney from the Agency go speak to Perez.
The assistant public defender who was present apparently then spoke to Perez, and this
attorney subsequently told the court that he was there "on behalf of Mr. Perez and Mr.
Ratliff."
At the hearing, the attorneys for the other co-defendants complained about
discovery issues and asked that the cases be continued until August 5, with Rule 45 time
tolling. The assistant public defender representing Perez and Ratliff agreed to the
continuance and the tolling of the time. There was no discussion of the potential conflict
with the Public Defender Agency representing both Perez and Ratliff nor was there any
discussion of the fact that there was still no individual attorney assigned to Perez's case.
The next pretrial conference was held on August 5. At that point, Perez had
been in custody for 92 days on this case and still no attorney had entered an appearance
on his behalf. Notably, by this time, the Public Defender Agency had withdrawn from
representing Ratliff, and it appears that the Agency remained appointed only to Perez's
case.
However, when the court called Perez's case, no attorney responded. Perez
himself responded and informed the court that "for three months . . . nobody's here for
me. I haven't had an attorney yet." The court agreed that the situation "need[ed] to be
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----------------------- Page 6-----------------------
fixed." After consulting the file, the court found that the Public Defender Agency had
been appointed, and a note in the file said that there was a "conflict check" going on. An
assistant public defender who was present for other matters agreed to speak with Perez.
Later in the hearing, the assistant public defender asked when the Agency
had been appointed and whether the Agency already had a conflict at the time they were
appointed. The attorney asserted that the Public Defender Agency could not waive
Rule 45 time on Perez's behalf if it had a conflict, and she argued that the prior waivers
may have been invalid. The court responded that it was not going to rule on any
challenges to the prior Rule 45 waivers and that a motion should be filed if there was a
disagreement with the court's calculation that only 39 days had run.
The court then ruled that it would continue all of the other cases until
October 7 except for Perez's case, which would be scheduled for the following week so
that the court could address the representation issue. Near the end of the hearing, the
court repeated that Perez's case would be heard on August 12. The following exchange
then occurred:
Attorney : Judge, Mr. Perez now tells me he is
comfortable waiving from today until the next court date.
. . . .
Court: Oh, do you want to come back next week?
Perez : No.
Attorney : Just for my purposes I claim that I don't
believe - that we potentially have a conflict but my position
has been he seems to understand what he's waiving and so he
now takes the position he wants -
When the court announced that Perez's case would be continued until
October 7 and that the Rule 45 time would be tolled, Perez spoke up, asking, "[W]here
am I with time running right now?" The following exchange then took place:
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----------------------- Page 7-----------------------
Court: I just heard that you're . . . comfortable
waiving time and coming in with everyone else.
Perez : Yeah, no, that's - that's right. But I was
asking where . . . am I at.
Court: Yeah. 10/7, and oh, you're 39 days having
run. If that was your question. Okay.
One week later, on August 12, 2019, the court entered a written order yet again
appointing the Public Defender Agency as counsel for Perez.
The next pretrial conference took place on October 7. At this point, Perez
had been in custody for 155 days on this case. Still no entry of appearance had been
filed.
When the court called Perez's case, Perez responded, "I'm here." The
judge asked, "Who's his attorney?" and the district attorney replied that her office "[did]
not have anybody listed in our system [as Perez's attorney]." An assistant public
defender then spoke up and told the court that the Public Defender Agency similarly did
not have "any kind of file open for Mr. Perez." The assistant public defender stated that
she would "make sure we get a file before the next hearing." The judge, who was the
same judge who had presided over all of the other pretrial conferences, did not question
the assistant public defender any further or take any affirmative steps to address the fact
that, 155 days after arraignment, Perez was still without an assigned attorney.
Instead, the court took up the co-defendants' cases. The attorneys
representing the co-defendants requested a continuance until December 9. The assistant
public defender who had spoken to Perez informed the court that she would "go along
with the parties on this." She asked the court to give her a copy of both the order
appointing the Public Defender Agency and the charging document. The court
concluded the hearing by stating, "It sounds like everyone's in agreement with a
continued discovery hearing on December 9. Time will toll."
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----------------------- Page 8-----------------------
On the following day, October 8, an assistant public defender entered an
appearance for Perez.
On October 30, the Office of Public Advocacy and the Public Defender
Agency entered into a stipulation, agreeing that the Office of Public Advocacy should
be appointed to represent Perez based on a conflict of interest. (The nature of the conflict
of interest was not identified.)
On November 4, a contract attorney with the Office of Public Advocacy
entered his appearance in Perez's case. (The contract attorney was already assigned to
represent Perez in a different case.)
At the December 9 hearing, Perez was present, but his attorney was still in
another courtroom when the court called Perez's case with the co-defendants' cases. The
attorneys for the co-defendants complained about various discovery issues and agreed
to have the court set a special discovery hearing where the assigned prosecutor would
be present. The hearing was set for January 17. With the agreement of the attorneys
who were present, the court tolled the speedy trial time until that hearing. But the court
did not acknowledge that Perez's attorney was not present. Instead, the court continued
Perez's case to January 17 along with the other co-defendants without any input from
Perez or his attorney.
Perez's attorney subsequently filed a written objection to the court
continuing Perez's case and tolling the time in his attorney's absence. A status hearing
was held on December 30. At that hearing, Perez's attorney agreed to waive Perez's
Rule 45 time until the January discovery hearing. But the attorney indicated that he
believed the prior waivers of Perez's Rule 45 time had been invalid based on the Public
Defender Agency's apparent conflict of interest, and he indicated that he intended to file
a motion to dismiss Perez's case for violation of his Rule 45 speedy trial right.
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----------------------- Page 9-----------------------
On February 5, Perez's attorney filed a motion to dismiss Perez's case
under Rule 45. In the motion, Perez's attorney argued that the court w as o bligated to
take affirmative steps at the first pretrial conference hearing (the June 10 hearing) to
directly address the Public Defender Agency's failure to assign an attorney to Perez or
to resolve its conflict issues. The attorney then argued that the court's failure to ensure
that this situation was resolved meant that Perez was effectively unrepresented and he
should therefore have been treated as an unrepresented party and directly advised of his
right to a speedy trial and the effect of any consent to a continuance.3
The attorney also
argued that none of the attorneys from the Public Defender Agency were authorized to
toll Rule 45 time on Perez's behalf because the Agency had a conflict of interest in
Perez's case based on its representations of the co-defendants.
The trial court denied the motion to dismiss under Rule 45 in a written
order. In the order, the court found that, at all relevant times, Perez was represented by
the Public Defender Agency even though no individual attorney had filed an entry of
appearance. The court also found that the assistant public defenders who were present
at the pretrial conferences and able to consult with Perez had apparent authority to
request a continuance and waive time on his behalf. Lastly, the court ruled that the
speedy trial time was also tolled under Rule 45(d)(5), which allows for "[a] reasonable
period of delay when the defendant is joined for trial with a codefendant as to whom the
time for trial has not run and there is good cause for not granting a severance."
Perez's attorney moved for reconsideration, which the court denied. This
petition for review then followed.
3 See Alaska R. Crim. P. 45(d)(2) ("A defendant without counsel shall not be deemed
to have consented to a continuance unless the defendant has been advised by the court of the
right to a speedy trial under this rule and of the effect of consent.").
- 9 - 2736
----------------------- Page 10-----------------------
The trial court had a duty to take affirmative steps to resolve the
representation issues in Perez's case
We granted this petition for review because the record in this case reveals
that both the Public Defender Agency and the trial court failed to act diligently to resolve
obvious problems with Perez's representation. For over five months, Perez did not have
an individual attorney assigned to his case. This meant that there was no attorney
keeping track of his case between pretrial hearings, no attorney communicating with him
outside these hearings, no attorney reviewing the discovery and discussing it with him,
and no attorney assisting him with other pretrial matters such as bail.
We begin by recognizing the failure of the Public Defender Agency to take
ownership over this case. The Public Defender Agency was appointed at Perez's initial
arraignment on the indictment on May 6, 2019, and an attorney from the Agency
represented Perez, waiving reading of the charges and advisement of his rights. For the
next five months, no entry of appearance was filed - despite the fact that multiple
Agency attorneys appeared before the court for Perez and assured the court that they
would take steps to fix the problem. It appears that only the attorney at the October 7
hearing actually followed through on this promise, resulting in an entry of appearance
being filed the very next day. It then took the Agency another three weeks to resolve a
conflict issue with Perez and enter a stipulation for substitution of counsel with the
Office of Public Advocacy.
There is no excuse for the fact that it took the Agency over five months to
assign an individual attorney to Perez's case and another three weeks to find substitute
counsel. We expect that the Public Defender Agency will take steps to revise its internal
procedures and correct what went wrong in this case.
The key question in this petition, however, is whether the trial court had a
duty to act to remedy this breakdown in the system (and ultimately, whether the remedy
- 10 - 2736
----------------------- Page 11-----------------------
for any failure to act, under the circumstances of this case, is a dismissal under Criminal
Rule 45). We conclude that the trial court had an affirmative duty to act when it became
clear that Perez had no attorney assigned to his case and that the conflict issues to which
the Public Defender Agency attorneys alluded were not being timely resolved.
Article I, Section 11 of the Alaska Constitution and the Sixth Amendment
to the United States Constitution guarantee a criminal defendant the right to the
4
assistance of counsel in all critical stages of a criminal prosecution.
Trial courts play an
important role in safeguarding this constitutional right.
As the United States Supreme Court observed more than eighty years ago,
"The Constitution's guarantee of assistance of counsel cannot be satisfiedby mere formal
5
appointment."
Thus, a trial court's duty to appoint counsel "is not discharged by an
assignment at such a time or under such circumstances as to preclude the giving of
6
effective aid in the preparation and trial of the case." Likewise, a trial court's duty to
appoint counsel is not discharged if the appointment did not result in an entry of
appearance by an individual attorney who is actually assigned to the case.
Here, Perez was arraigned on the original indictment on May 6, 2019, and
on a supplemental indictment a few weeks later. But when the first pretrial conference
4 Alaska Const. art. I, § 11; U.S. Const. amend. VI; see also Rothgery v. Gillespie Cnty.,
Tex., 554 U.S. 191, 199 (2008) ("[T]he right to counsel attaches at the initial appearance
before a judicial officer." (citations omitted)).
5 Avery v. Alabama , 308 U.S. 444, 446 (1940); see also United States v. Cronic, 466
U.S. 648, 654 n.11 ("Assistance begins with the appointment of counsel, [but] it does not end
there. In some cases the performance of counsel may be so inadequate that, in effect, no
assistance of counsel is provided." (citations omitted)).
6 Powell v. Alabama, 287 U.S. 45, 71 (1932); see also McMann v. Richardson, 397
U.S. 759, 771 (1970) ("[I]f the right to counsel guaranteed by the Constitution is to serve its
purpose, defendants cannot be left to the mercies of incompetent counsel.").
- 11 - 2736
----------------------- Page 12-----------------------
hearing was held over a month later, on June 10, no entry of appearance had been filed.
Moreover, at the hearing, the assistant public defender who was present informed the
court that, although the Agency had been appointed to represent Perez, there were
conflict issues that needed to be resolved because the Agency had been appointed to
represent multiple co-defendants.
But the existence of a potential conflict that might cause the Agency to
ultimately withdraw from Perez's case does not excuse the Agency's failure to assign
Perez an individual attorney. The Agency was required to continue to represent Perez
(and the other co-defendants) while it actively evaluated the potential conflict to
determine which case, if any, it would retain, so that substitute counsel could be
appointed to the co-defendant cases from which it withdrew.7
Given this situation, the trial court was required to do more than continue
Perez's case to another pretrial conference a month later. Instead, the court should have
taken immediate action to ensure that an attorney was assigned to Perez's case and that
8
the conflict issues were resolved on an expedited basis.
This action could have included
setting firm deadlines for filing an entry of appearance or a motion to withdraw, or
setting status hearings at which a supervisor from the Public Defender Agency was
required to appear if the deadlines were not met.
7 See Alaska R. Prof. Conduct 1.16(b)-(d). Indeed, even when an attorney has to
withdraw based on an actual conflict of interest, the attorney is still required to "take steps
to the extent reasonably practicable to protect a client's interests" until substitute counsel is
appointed. See Alaska R. Prof. Conduct 1.16(d).
8 See Glasser v. United States, 315 U.S. 60, 71 (1942) ("The trial court should protect
the right of an accused to have the assistance of counsel."); Wheat v. United States, 486
U.S. 153, 160-61 (1988) (requiring trial court to take appropriate measures to protect
criminal defendants from an attorney's conflict of interest); Cuyler v. Sullivan, 446 U.S. 335,
347 (1980) (imposing a duty of inquiry on trial court when the court "knows or reasonably
should know that a particular conflict exists").
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----------------------- Page 13-----------------------
Accordingly, we agree with Perez that the trial court failed to fulfill its duty
to safeguard Perez's constitutional right to counsel.
However, we disagree with Perez that the remedy for the trial court's failure
to act is necessarily dismissal of Perez's case under Rule 45(g). In his petition for
review, Perez argues that dismissal is the appropriate remedy because he claims that the
trial court's failure to act resulted in Perez being represented by "conflicted" attorneys
who had no authority to waive Rule 45 time on his behalf.
We acknowledge that multiple representation of co-defendants beyond the
initial pretrial hearings is disfavored. As the American Bar Association has advised:
Except where necessary to secure counsel for preliminary
matters such as initial hearings or applications for bail, a
defense counsel (or multiple counsel associated in practice)
should not undertake to represent more than one client in the
same criminal case. When there is not yet a criminal case,
such multiple representation should be engaged in only when,
after careful investigation and consideration, it is clear either
that no conflict is likely to develop at any stage of the matter,
or that multiple representation will be advantageous to each
of the clients represented and that foreseeable conflicts can be
waived.[9]
Alaska Professional Conduct Rule 1.7(a) likewise provides that "a lawyer shall not
10
represent a client if the representation involves a concurrent conflict of interest." A
concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to
another client; or
(2) there is a significant risk that the representation of one or
more clients will be materially limited by the lawyer's
9 ABA Standards for Criminal Justice § 4-1.7(d) (4th ed. 2015).
10 Alaska R. Prof. Conduct 1.7(a).
- 13 - 2736
----------------------- Page 14-----------------------
responsibilities to another client, a former client, or a third
person or by a personal interest of the lawyer.[11]
A later subsection of the same rule provides, "A lawyer shall act with reasonable
diligence in determining whether a conflict of interest . . . exists."12
But contrary to Perez's assumptions, the mere appointment of an agency
to multiple co-defendants does not - standing alone - create an active conflict of
13
interest.
Instead, the problem is the inherent potential for adverse interests or
antagonistic defenses among co-defendants, and the fact that active conflicts of interest
are likely to develop as the clients share confidential information with their attorneys and
decisions about pretrial investigations and negotiations have to be made. Indeed, the
potential for active conflicts of interests among co-defendants is so high that Alaska law
prohibits the joint representation of co-defendants at trial unless there has been a court
14
inquiry and an on-the-record express waiver of any conflict of interest.
Thus, when an agency is assigned to represent multiple defendants at
arraignment, it is incumbent on the agency to determine on an expedited basis which
defendant it will continue to represent and which cases it will withdraw from so that
substitute counsel can be appointed. Indeed, the longer an agency waits to resolve which
case it will retain, the higher the likelihood that an actual conflict of interest will develop
that will require the agency to withdraw from all of the co-defendants' cases.
11 Id.
12 Alaska R. Prof. Conduct 1.7(c).
13 Cf. Mickens v. Taylor, 535 U.S. 162, 169-71 (2002) (distinguishing between actual
conflicts of interest and the potential for such conflicts created by multiple representation).
14 See Moreau v. State, 588 P.2d 275, 283-84 (Alaska 1978) (adopting Minnesota rule
that "the trial judge must personally advise the defendant of potential dangers inherent in
dual representation").
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----------------------- Page 15-----------------------
Here, the Agency did not act with reasonable diligence. Instead, it took
months for the Agency to withdraw from the co-defendants' cases. At the June 10
hearing, more than a month after Perez's arraignment, the Agency was still representing
three of the co-defendants (Perez, Ratliff, and B. Millhouse). By the next hearing, on
July 8, the Agency had withdrawn from Millhouse's case but was still representing Perez
and Ratliff. By the following hearing, August 5, the Agency had withdrawn from
Ratliff's case, and appeared to be representing only Perez.15
Thus, we agree with Perez that the conflict issues were not resolved in a
timely manner, and that the trial court had a duty to intervene to ensure that they were
resolved more expeditiously. However, the primary problem was not the existence of
a potential conflict caused by the multiple representations, but the fact that Perez did not
have an individual attorney for over five months while potential conflicts were resolved.
We accordingly must now determine whether the absence of an assigned
attorney invalidated Perez's waiver of his Rule 45 speedy trial time such that Perez's
case should be dismissed with prejudice under Rule 45(g).
Why we conclude, based on the specific record before us, that the trial
court did not err in finding that the Agency attorneys representing Perez
at the pretrial conferences had apparent authority to consent to a
continuance on his behalf
Under Alaska Criminal Rule 45, a defendant must be brought to trial within
16
120 days from the date of the service of the charging document.
However, there are
a number of circumstances that can result in time being excluded from the Rule 45
15 We acknowledge that nearly three months later, the Agency withdrew from Perez's
case based on a conflict of interest, but it is unclear from the record whether that conflict of
interest was related to the earlier multiple representation of co-defendants.
16 Alaska R. Crim. P. 45(b)-(c).
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----------------------- Page 16-----------------------
17
speedy trial calculation. One of the excluded periods of time is set out in Rule 45(d)(2):
"The period of delay resulting from an adjournment or continuance granted at the timely
request or with the consent of the defendant and the defendant's counsel." The trial court
relied on this subsection when it tolled Perez's Rule 45 time at the various pretrial
conferences.
Perez argues that it was error for the trial court to rely on subsection (d)(2)
to toll the time for trial under Rule 45 because the court was aware that the Public
Defender Agency had a potential conflict of interest in representing Perez. But, as we
just explained, we do not agree with Perez that the mere existence of a potential conflict
of interest automatically precluded the Agency from representing Perez at these initial
pretrial hearings.
The more significant problem in Perez's case is not the potential conflict
of interest based on the multiple representation of co-defendants, but the absence of any
individual attorney assigned to represent Perez. In order to toll Rule 45 time under
subsection (d)(2), the trial court must find that the requested continuance was "at the
request or with the consent of the defendant and the defendant's counsel."18
In other
words, tolling under (d)(2) is generally premised on the assumption that the defense
attorney and the defendant have a functional working relationship and the defense
attorney is not seeking a continuance that will toll Rule 45 time without the knowledge
19
and consent of their client.
Perez argues that he did not have an attorney-client relationship with the
assistant public defenders who represented him at the pretrial hearings because none of
17 See Alaska R. Crim. P. 45(d)(1)-(7).
18 Alaska R. Crim. P. 45(d)(2) (emphasis added).
19 Machado v. State , 797 P.2d 677, 685 (Alaska App. 1990).
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----------------------- Page 17-----------------------
them were actually assigned to his case. But it is not unusual for attorneys within an
agency to appear for each other's clients at pretrial hearings, and the fact that the
continuances were requested by assistant public defenders who were not Perez's
assigned public defender does not mean that Perez should have been considered
"unrepresented."20
What was unusual in Perez's case was that there was no individual attorney
assigned to Perez, and it was therefore clear that the advice and representation that Perez
was receiving was limited to the advice and representation he received in the hearings
themselves.
As a general matter, our case law is clear that a trial court does not need to
obtain a separate Rule 45 waiver from a defendant when their defense attorney requests
a continuance that will toll Rule 45. Instead, when an attorney appears for a defendant
at a hearing and requests a continuance, the trial court may assume that the continuance
is requested with the defendant's knowledge and consent unless there is an affirmative
21
showing to the contrary.
As we explained in State v. Jeske :
20 Cf. Heavygun v. State, 368 P.3d 707, 711 (Mont. 2016) (noting that "it is 'common
practice' for defense attorneys to appear on each other's behalf, when asked to do so because
of illness or scheduling conflicts, and especially for more routine matters, such as status
hearings" and that "the allowance of stand-in counsel for hearings did not constitute deficient
performance or otherwise fall below an objective standard of reasonableness sufficient to
establish the deficiency prong of Strickland").
21 See Yearty v. State, 805 P.2d 987, 991 (Alaska App. 1991); see also Machado v. State,
797 P.2d 677, 685 (Alaska App. 1990) ("While we believe that this rule gives the defendant
the right to object to a continuance and that the rule assumes that counsel will make the
decision to move for a continuance after consultation with the defendant, we do not believe
that the court should normally be required to obtain a separate waiver from the defendant.");
Baker v. State, 110 P.3d 996, 999 (Alaska App. 2005); Henson v. State, 576 P.2d 1352, 1356
n.9 (Alaska 1978).
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----------------------- Page 18-----------------------
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.[22]
Our case law is also clear that when a defendant brings an objection to the trial court's
attention, the time already tolled under subsection (d)(2) remains tolled but no further
tolling under (d)(2) can occur once the trial court affirmatively finds that the defendant
objects to the continuance.23
The question presented by Perez's case is whether a trial court may
similarly assume that any requested continuance that tolls Rule 45 time is with the
knowledge and consent of the defendant when the defendant has not actually had an
individual attorney assigned to his case. Perez argues that a defendant in such a situation
is akin to an unrepresented defendant and the trial court should therefore follow the
procedures for unrepresented defendants, which require the trial court to advise the
defendant personally of the defendant's Rule 45 speedy trial rights and the effect that
24
consenting to a continuance will have on those rights.
22 State v. Jeske, 823 P.2d 6, 8 (Alaska App. 1991) (citing Henson, 576 P.2d at 1356 n.9;
Yearty, 805 P.2d at 991; Machado , 797 P.2d at 684-85; Snyder v. State, 524 P.2d 661, 664
(Alaska 1974); O'Dell v. Anchorage, 573 P.2d 1381, 1384 (Alaska 1978)).
23 See Jeske, 823 P.2d at 10 ("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."); see also Rhames v. State, 907 P.2d 21, 25 (Alaska App. 1995).
24 See Alaska R. Crim. P. 45(d)(2) ("A defendant without counsel shall not be deemed
(continued...)
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----------------------- Page 19-----------------------
We agree with Perez that the best practice would be to treat a defendant
without an assigned attorney as akin to an unrepresented party for purposes o f tolling
Rule 45 under subsection (d)(2). But we conclude that the trial court did not err in
failing to follow those procedures in Perez's case because the record supports the trial
court's assumption that the continuances were requested with the knowledge and consent
of Perez. This is most clearly shown by the exchange between the court and Perez that
occurred at the August 5 hearing.
At that hearing, the court requested that an assistant public defender consult
with Perez (as had occurred at other hearings). After speaking with Perez, the attorney
expressed concern that she might not be authorized to represent Perez. As a result, the
trial court scheduled a representation hearing for the following week to finally resolve
the representation issues in Perez's case.
But Perez then made it clear that he did not want to come back for the
representation hearing and that he was willing to have his case continued, with the rest
of his co-defendants, until October 7. After the attorney informed the trial court that
Perez was "comfortable" with waiving his Rule 45 speedy trial time until October 7, the
court addressed Perez personally and confirmed that Perez was willing to have the
Rule 45 time tolled. Perez also demonstrated an understanding of his Rule 45 rights,
specifically requested an accounting of "where [he] was at." The trial court explained
that 39 days of his 120-day Rule 45 time had run. Perez did not object to that calculation
or make any further inquiry.
The exchange at the August 5 hearing demonstrates that Perez had an
adequate understanding of his Rule 45 rights and that he was more than willing to
24 (...continued)
to have consented to a continuance unless the defendant has been advised by the court of the
right to a speedy trial under this rule and of the effect of consent.").
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----------------------- Page 20-----------------------
consent to continuances that would toll his Rule 45 time. Indeed, when given the
opportunity to return for a representation hearing the following week, Perez apparently
preferred to wait until the next pretrial c onference, with his R ule 45 time tolling. We
note that, even after the Office of Public Advocacy contract attorney entered an
appearance, Perez continued to consent to continuances that tolled his Rule 45 time.
We also find it significant that Perez's willingness to waive his Rule 45
time was objectively reasonable given the specific circumstances of his case. Perez was
facing twenty-seven felony counts in an eighty-five count indictment involving eight co-
defendants.25
Discovery in the case was voluminous, and Perez's co-defendants had
similarly requested continuances and waived speedy trial time while their attorneys
struggled to address discovery issues and ensure that discovery was complete. There is
also nothing in the record to suggest that moving for a severance at this early stage of the
26
pretrial proceedings would have been advantageous to Perez.
Thus, given the record and all of the surrounding circumstances, we
conclude that, while the trial court erred in failing to take more timely action on the
representation issues in Perez's case, this error did not invalidate the Rule 45(d)(2)
findings that the trial court made. Accordingly, we affirm the trial court's denial of
Perez's motion to dismiss his case with prejudice under Rule 45(g).
Conclusion
The trial court's order denying Perez's motion to dismiss is AFFIRMED.
25 We note that some of the co-defendants still had warrants out for their arrests and
therefore had not yet been arraigned on the charges.
26 See also Alaska R. Crim. P. 45(d)(5) (permitting the trial court to toll Rule 45 time for
"[a] reasonable period of delay when the defendant is joined for trial with a codefendant as
to whom the time for trial has not run and there is good cause for not granting a severance").
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----------------------- Page 21-----------------------
Judge HARBISON, concurring.
I agree with the Court that the delay that occurred in this case was
unacceptable. But I write separately to express my concern that delays such as this one
seem to be more common under the informal, ad hoc process for resolving representation
issues that has, in recent years, replaced the rules-based approach formerly employed by
trial courts.1
Alaska's trial courts currently address representation issues, andparticularly
substitution of counsel issues, very informally. When a court-appointed attorney claims
to have a conflict of interest, the trial court rarely requires the attorney to file a motion
to withdraw. Instead, trial courts typically allow the agencies themselves to determine
when and whether conflict counsel will be appointed to represent the defendant. Thus,
when a defense attorney informs the court that they may need to withdraw, courts often
take no action, except, as here, to continue the case while leaving it to the public defense
agencies to resolve the conflict among themselves. It is rare for a court to exercise its
authority over the substance or timing of the withdrawal process.
In my view, this informality does not have the desired effect of promoting
the fair and efficient adjudication of criminal matters. Instead, defendants - and trial
1 See, e.g., Ortberg v. State, 751 P.2d 1368, 1376 n.6 (Alaska App. 1988) (explaining
that, under Alaska Rule of Criminal Procedure 50(b), the civil rules regarding attorneys apply
in criminal cases); Alaska R. Civ. P. 81(e) (setting out procedure that must be followed in
order for an attorney to withdraw from representation of a client); see also Alaska R. Prof.
Conduct 1.7 (providing that, except for enumerated exceptions, an attorney may not represent
a client if the representation involves a concurrent conflict of interest and requiring attorneys
to act with reasonable diligence in determining whether such a conflict of interest exists);
Alaska R. Prof. Conduct 1.9 (explaining when a lawyer's duty to former clients bars the
lawyer from representation of a current client); Alaska R. Prof. Conduct 1.10 (imputing
certain conflicts of interest to lawyers associated in a firm).
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----------------------- Page 22-----------------------
courts - are often left in the dark as to which agency, and which attorney, has assumed
responsibility for the defendant's representation. It is not uncommon for the process to
be unnecessarily protracted, and while the representation issues are being resolved,
defense attorneys often claim to be unable to advocate for a defendant, even when there
is an existing, unchallenged court order appointing a particular agency.
On top of this, the informality of most representation proceedings makes
it more likely that the parties and the court will conflate the issues relating to
representation, failing to identify whether they are litigating a defendant's motion to
substitute counsel, a defendant's motion to waive their right to counsel in order to
proceed pro se, or a defense attorney's motion to withdraw. Once these issues are
conflated, it is all too easy for the trial court to conduct an insufficient inquiry or to apply
an incorrect analysis. In my view, if representation issues were addressed more formally,
through written motion practice and established court procedures, they would be
resolved more quickly and reliably.
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