Opinion
Court of Appeals No. A-9475.
November 21, 2007.
Appeal from the District Court, Third Judicial District, Kenai, David S. Landry, Judge.
Michael Schwaiger, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Angela G. Jamieson, Assistant District Attorney, and June Stein, District Attorney, Kenai, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Ryan B. McGahan pleaded no contest to driving while under the influence. In this appeal, he challenges the district court's decision denying his motion to suppress the evidence. But when McGahan entered his no contest plea he did not preserve his right to challenge the court's denial of his motion to suppress. This claim is therefore waived.
AS 28.35.030(a).
McGahan also argues that his right to a speedy trial under Alaska Criminal Rule 45 was violated. Although McGahan preserved this claim for appeal, we conclude that he failed to establish a violation of Rule 45. We therefore affirm his conviction.
Facts and proceedings
Early on the morning of December 21, 2003, Soldotna Police Officer Darrel Christensen was investigating a traffic accident at the intersection of Big Eddy Road and Kobuk Street. Because a power line had been knocked down, Officer Christensen had blocked off a portion of Big Eddy Road.
Officer Christensen saw a vehicle driving on Kobuk Street toward Big Eddy Road. According to Officer Christensen's report of the incident, he approached the driver of that vehicle (later identified as McGahan) to tell him about the downed power line. When he contacted McGahan, he observed a moderate odor of alcoholic beverages coming from the inside of the vehicle. McGahan admitted to having one drink earlier that morning. Once McGahan stepped out of the vehicle, Officer Christensen observed other signs of intoxication: McGahan smelled of alcoholic beverages, he had bloodshot, watery eyes, and he was swaying. After McGahan failed a series of field sobriety tests, Officer Christensen arrested him. At the police station, McGahan submitted to a breathalyzer test, which showed a blood alcohol level of .122 percent.
The legal limit under AS 28.35.030(a)(2) is .08 percent.
McGahan was charged with driving while under the influence. Before trial, he moved to suppress the evidence obtained as a result of this stop, arguing that Officer Christensen was not acting in a community caretaker role when he stopped him and did not have reasonable suspicion to justify the stop. McGahan asserted that Officer Christensen approached him because he knew he had a previous driving while under the influence conviction and because it was 5:22 a.m. — not because he wanted to tell him about a downed power line. To support this claim, McGahan observed that Officer Christensen had no reason to tell drivers that a power line was down because he had already set up flares to reroute traffic around the downed line. He also noted that Officer Christensen did not state in his report that he had stopped any other vehicles. And he asserted that when Officer Christensen approached him he said: "Mr. McGahan, I thought that was you," and instructed him to blow in his face.
Judge Landry scheduled an evidentiary hearing on the motion, but the State's witness, Officer Christensen, did not show up at that hearing. The court rescheduled the hearing two more times, but Officer Christensen never appeared. Neither party presented any evidence and the court took the motion under advisement.
On August 2, 2004, Judge Landry denied the motion to suppress.
Almost seven months later, on February 24, 2005, McGahan moved to dismiss the case under Criminal Rule 45. McGahan argued that his right to a speedy trial had been violated because the 120-day time period for trial had expired on December 1, 2004. Judge Landry denied the motion, concluding, after excluding certain periods due to the unavailability of McGahan's attorney and the State's expert, that the time for trial did not expire until March 20, 2005.
McGahan then entered a Cooksey plea to driving while under the influence, reserving his right to challenge the denial of his motion to dismiss on Rule 45 grounds. Discussion McGahan cannot appeal the denial of his motion to suppress
Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
McGahan argues that the district court should have granted his motion to suppress the evidence. He argues that the burden was on the State to show that his stop was legal, and that the court erred by denying his motion based on his failure to provide an affidavit or testimony by the defendant to support his factual allegations.
When a defendant enters a plea of no contest, he normally waives all non-jurisdictional defects in his conviction. But a defendant may expressly condition his plea on a limited right of appeal. McGahan did that in this case; when he entered his Cooksey plea, he stated that his plea agreement with the State was contingent on his right to appeal the denial of his motion to dismiss for a violation of Criminal Rule 45. But he did not state that his plea agreement was contingent on his right to appeal the denial of his motion to suppress. The latter claim is therefore waived, and we do not decide it.
Id. at 1255; Clark v. Anchorage, 2 P.3d 639, 642 (Alaska App. 2000).
Cooksey, 524 P.2d at 1256.
McGahan has not shown a violation of Criminal Rule 45
Under Alaska Criminal Rule 45, a criminal defendant must be brought to trial within 120 days from the date the charging documents are served on the defendant. The rule excludes certain time periods, including "[t]he period of delay resulting from the absence or unavailability of the defendant" and "[o]ther periods of delay for good cause."
Alaska R. Crim. P. 45(b), (c).
Alaska R. Crim P. 45(d)(4).
Alaska R. Crim. P. 45(d)(7).
On February 25, 2005, McGahan filed a motion to dismiss, arguing that his right to a speedy trial under Rule 45 had been violated because he was not brought to trial by December 1, 2004. Judge Landry denied the motion, finding, after excluding certain periods from his Rule 45 calculation, that the time for trial did not expire until March 20, 2005.
McGahan argues that Judge Landry erred by excluding fifty-one days (from October 20, 2004, to January 10, 2005) based on the unavailability of his attorney. McGahan argues that he never consented to waive Rule 45 during this period and that the record contains no specific findings by Judge Landry that there was good cause to toll the rule because of his attorney's other obligations.
We agree that the record appears to be silent on this issue. But we nevertheless conclude that McGahan has failed to establish a violation of Rule 45. Judge Landry found that McGahan's attorney was unavailable for trial from October 20, 2004, to January 10, 2005, because she was on leave, in trial in another case, or handling cases in another court. McGahan has not asserted that his attorney was actually available for trial during the periods excluded by the court. His case is therefore indistinguishable from other recent cases in which we found no violation of Rule 45. Conclusion
See Rosenquist v. State, Memorandum Opinion and Judgment No. 5268 (Nov. 7, 2007); Walluk v. State, Alaska App. Memorandum Opinion and Judgment No. 5167 (Jan. 31, 2007), 2007 WL 293074; Cook v. State, Alaska App. Memorandum Opinion and Judgment No. 5113 (Sept. 6, 2006), 2006 WL 2578646.
We AFFIRM McGahan's conviction.