Opinion
Court of Appeals No. A-9537.
November 7, 2007.
Appeal from the District Court, Third Judicial District, Kenai, David S. Landry, Judge, Trial Court No. 3KN-03-2569 CR.
Danika Swanson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Angela G. Jamieson, Assistant District Attorney, June Stein, District Attorney, Kenai, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Swen A. Rosenquist was convicted of driving while under the influence and failure to appear. He appeals his convictions, arguing that his right to a speedy trial under Alaska Criminal Rule 45 was violated because he was not brought to trial within the 120 days required by that rule. For the reasons below, we reject Rosenquist's Rule 45 claim and affirm his convictions.
AS 28.35.030(a)(1) and AS 12.30.060(2), respectively.
Facts and proceedings
On December 17, 2003, Rosenquist was arrested for driving while under the influence. He was arraigned on January 8, 2004. In September 2004, he failed to appear but by November 16, 2004, he was back on the trial calendar in a trailing status. On February 24, 2005, he moved to dismiss the case, asserting that his right to a speedy trial under Rule 45 had been violated.
District Court Judge David S. Landry denied the motion, ruling that, after excluding certain time periods from the Rule 45 calculation, 120 days had not yet run. Judge Landry excluded nine periods; in all but one, he found that Rosenquist's defense attorney was unavailable due to other trials or commitments. Judge Landry did so even though the defense attorney had filed formal "notices of unavailability" for only two of those periods.
After his motion to dismiss was denied, Rosenquist entered a Cooksey plea and was convicted of driving while under the influence and failure to appear. Rosenquist appeals the denial of his motion to dismiss.
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Why we reject Rosenquist's Rule 45 claim
Under Rule 45, a criminal defendant must be brought to trial within 120 days from the date the charging document is served on the defendant. The rule excludes several time periods, including "[t]he period of delay resulting from [a] . . . continuance granted . . . with the consent of the defendant and the defendant's counsel" and "[o]ther periods of delay for good cause." Rosenquist argues that Judge Landry erroneously excluded certain periods from the Rule 45 calculation. Rosenquist asserts that if the improperly excluded days are counted, then more than 120 days had elapsed by the day he filed his motion to dismiss.
Alaska R. Crim. P. 45(b), (c).
Alaska R. Crim. P. 45(d)(2).
Alaska R. Crim. P. 45(d)(7).
The parties do not contest Judge Landry's findings that Rosenquist's Rule 45 right started running on January 8, 2004. Nor do the parties dispute that, for various legitimate reasons, only sixty-seven days had run by November 16, 2004. The parties also do not contest Judge Laundry's finding that after November 16 — barring any further excluded time — Rule 45 required Rosenquist's trial to start on January 10, 2005.
However, Rosenquist does challenge Judge Landry's conclusion that between November 16, 2004, and February 24, 2005, the date Rosenquist filed his motion to dismiss, seventy-two days should be excluded from the Rule 45 calculation. He claims that Judge Landry erred when he excluded all but nineteen days of this time due to defense counsel's unavailability. (The remaining nineteen days were excluded because of the unavailability of the State's expert w itness. Rosenquist also contests the exclusion of this period. As we explain below, this issue is moot.)
Rosenquist argues that the record does not support Judge Landry's decision to toll this time because his attorney was on "leave [or] doing [the] Homer misdemeanor calendar." Rosenquist points out that there is "not a single note in the record to indicate that the court was tolling Rule 45 due to the unavailability of the defense counsel," and that "no such inquiry regarding [defense counsel's] schedule was even conducted."
Although Judge Landry stated in his order that he tolled seventy-two days due to the unavailability of Rosenquist's attorney, he actually tolled only fifty-three days for this reason.
Rosenquist is correct about the general paucity of documentation in the trial court's file. But in the trial court, he did not challenge Judge Landry's findings that his attorney was in fact unavailable during these periods. Furthermore, on appeal he does not assert that his attorney was actually available for trial during any of the periods that Judge Landry excluded. We recently rejected claims similar to Rosenquist's in two unpublished cases — Cook v. State and Walluk v. State.
Alaska App. M emorandum Opinion and Judgment No. 5113 (Sept. 6, 2006), 2006 WL 2578646.
Alaska App. Memorandum Opinion and Judgment No. 5167 (Jan. 31, 2007), 2007 WL 293074.
In Cook and Walluk, the defendants argued that Judge Landry erred by excluding time from Rule 45 calculations on the ground that attorneys from the Public Defender Agency were unavailable because they had commitments in other trials or courts. But, because neither Cook nor Walluk asserted on appeal that their attorneys were actually available for trial during the excluded periods, we found that neither defendant had shown that Judge Landry committed clear error.
See Cook, M emorandum Opinion and Judgment No. 5113 at 5, 2006 W L 2578646 at *2; Walluk, Memorandum Opinion and Judgment No. 5167 at 5, 2007 WL 293074 at * 2.
Given Rosenquist's failure to claim that his attorney was actually available for trial on any of the disputed days, he too has not shown that Judge Landry's decision was clearly erroneous. Once these periods — which totaled fifty-three days — are excluded, Rule 45 had not yet run on February 24, the day Rosenquist moved to dismiss. We therefore conclude that Judge Landry did not err when he denied Rosenquist's motion.
Rosenquist also argues that Judge Landry erred when he excluded nineteen days during which the State's expert witness was unavailable. We need not resolve this claim because even if the nineteen days were improperly excluded, Rule 45 had not yet run on February 24, the date Rosenquist moved to dismiss.
Conclusion
We AFFIRM the decision of the district court.