Opinion
A-13876
01-31-2024
MATTHEW CLARK GARVEY, Appellant, v. STATE OF ALASKA, Appellee.
Katrina Larsen, Attorney at Law, Ketchikan, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the District Court, Third Judicial District, Trial Court No. 3HO-19-00056 CR, Homer, Bride Seifert, Judge.
Appearances:
Katrina Larsen, Attorney at Law, Ketchikan, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
SUMMARY DISPOSITION
Matthew Clark Garvey was convicted, following a jury trial, of driving under the influence of marijuana. On appeal, he argues that there was insufficient evidence to support his conviction and that the trial court erred in rejecting his post-trial motion for a new trial as untimely.
AS 28.35.030(a)(1).
When we review a claim of insufficient evidence, this Court views the evidence - and all reasonable inferences from that evidence - in the light most favorable to the jury's verdict. We then ask whether a reasonable juror could have found the defendant guilty beyond a reasonable doubt.
Johnson v. State, 188 P.3d 700, 702 (Alaska App. 2008).
Id.
In this case, a Homer police officer initiated a traffic stop after observing Garvey driving approximately thirty-five to forty miles per hour on a road with a speed limit of twenty-five miles per hour. The officer testified that when he approached the vehicle, he noticed Garvey had red and watery eyes, and he smelled an odor of marijuana coming from the car. Garvey admitted to smoking marijuana approximately eight and a half hours prior to the traffic stop.
Another officer, trained as a drug recognition evaluator, conducted various field sobriety tests with Garvey. The officer testified that she observed several clues throughout these tests that indicated impairment, and that during the tests, Garvey "chuckle[d] and giggle[d] [even though] there wasn't anything that was going on." The officer also testified that she could detect the scent of burnt marijuana on Garvey's person.
Following his arrest, Garvey was transported to the police station where he submitted to a breath test that showed no alcohol in his system. Garvey's blood was subsequently drawn and the test results confirmed the presence of THC in Garvey's system. At trial, a toxicology expert testified that it was "quite rare" for even a chronic marijuana user's blood to contain, eight hours after usage, as high a level of delta-9 THC, the active ingredient in marijuana, as was shown in Garvey's toxicology report.
Viewing this evidence in the light most favorable to upholding the verdict, we conclude that a reasonable juror could have found that Garvey was under the influence of marijuana at the time he was driving.
We further conclude that the trial court did not abuse its discretion in denying Garvey's motion for a new trial as untimely. Under Alaska Criminal Rule 33(c), a motion for a new trial based on any grounds other than newly discovered evidence must be filed within five days following a guilty verdict, or within such further time as the court may fix during that five-day period.
Garvey titled his motion a "Motion for Judgment Notwithstanding the Verdict and Motion for New Trial," and appeared to be seeking either an acquittal or a new trial. To the extent Garvey was requesting a judgment of acquittal under Alaska Criminal Rule 29, we have rejected that claim on the merits by rejecting Garvey's claim of insufficiency - leaving only the motion for a new trial under Criminal Rule 33 at issue.
Garvey was found guilty and sentenced on June 28, 2021. Nearly a month later, on July 23, 2021, Garvey's attorney filed a motion for a new trial, arguing that the evidence presented at trial did not warrant a conviction. Garvey's attorney also filed a motion to accept the late filing. The motion to accept late filing stated, in its entirety:
Mr. Garvey, via counsel, moves this court to accept a late filing of the attached Motion for Judgment Notwithstanding the Verdict and Motion for New Trial. Undersigned counsel believed he had filed the motion and order electronically. However, upon review, counsel discovered that the court never received said motion. Counsel is unaware how this occurred because the motion and draft order were completed and signed on 7/2/2021.
The motion did not contain any further information or an affidavit, nor did it cite to any legal authority authorizing the court to accept the late filing.
The court ruled that Garvey's motion was untimely under Criminal Rule 33, and the court refused to accept it.
Garvey argues that the trial court erred by failing to rule on his motion to accept late filing. But we interpret the rejection of Garvey's motion for a new trial as also denying his motion to accept the late filing.
In the alternative, Garvey argues that the court abused its discretion in rejecting his motion as untimely because the circumstances established excusable neglect. But while other untimely motions may be accepted when the filing was late due to "excusable neglect," Criminal Rule 33 motions are specifically excluded from this general rule. And Garvey has not otherwise established, either in his trial court motion or on appeal, that the failure to consider his motion for a new trial was manifestly unjust for purposes of Alaska Criminal Rule 53. Garvey provided little detail in the trial court about what happened and no affidavit, and he has not explained on appeal why the failure to order a new trial would be manifestly unjust. Accordingly, we conclude that the court did not err in failing to sua sponte invoke Criminal Rule 53 to relax the filing deadline.
See Alaska R. Crim. P. 40(b)(2) (providing that the court may, for cause shown, permit an act "to be done after the expiration of [a] specified period if the failure to act was the result of excusable neglect; but the court may not enlarge the period for taking any action under Rules 33, 34 and 35 except as otherwise provided in those rules").
See Alaska R. Crim. P. 53 (explaining that the criminal rules "may be relaxed or dispensed with by the court in any case where it shall be manifest to the court that a strict adherence to them will work injustice"); Davidson v. State, 642 P.2d 1383, 1389 (Alaska App. 1982) (holding that Criminal Rule 53 allows the trial court to relax the limits set out in Criminal Rule 33).
See, e.g., Taylor v. State, 564 P.2d 1219, 1220-21 (Alaska 1977) (holding that the superior court did not abuse its discretion in rejecting a late-filed motion to modify sentence that lacked sufficient detail about the circumstances of the late filing).
The judgment of the district court is therefore AFFIRMED.