Opinion
Court of Appeals No. A-9488.
January 31, 2007.
Appeal from the District Court, Third Judicial District, Kenai, David S. Landry, Judge, Trial Court No. 3KN-04-2580 CR.
Colleen Murray, Assistant Public Defender, Kenai, and Margie A. Mock, 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 David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
MEMORANDUM OPINION AND JUDGMENT
Patrick Walluk was convicted of fourth-degree domestic violence assault and failure to appear. He appeals his assault conviction, arguing that his right to a speedy trial was violated because he was not brought to trial within the 120 days required by Criminal Rule 45. Walluk claims that the district court erroneously excluded certain periods of time in its Rule 45 calculation. Because we cannot resolve Walluk's claim on the record before us, we remand the case for additional findings.
Facts and proceedings
On October 30, 2004, Walluk was arraigned on charges of fourth-degree assault and fifth-degree criminal mischief. At that time, trial call was scheduled for January 18, 2005. After Walluk failed to appear at the January trial call, a bench warrant was issued for his arrest. On January 19, the State amended its information to add the offense of failure to appear. The bench warrant was quashed on February 2, and trial call was rescheduled for February 22.
At the February 22, 2005, trial call, Walluk asked for a continuance. The district court granted that continuance and set a new trial date for April 19. At the next trial call on April 6, the parties and the court agreed to a trial date of May 3. Walluk's attorney was not available for trial before that May 3 date.
Walluk's case remained on trailing status until July 20, 2005. On that date, Walluk filed a motion to dismiss, arguing that his Rule 45 right to a speedy trial had been violated because he had not been brought to trial within the 120 days required by the rule. Walluk then entered a Cooksey plea to fourth-degree assault and failure to appear, reserving his right to appeal the court's ruling on his motion to dismiss. The State dismissed the criminal mischief charge.
See Cooksey v. State, 524 P.2d 1251, 1256-57 (Alaska 1974).
AS 11.41.230(a)(1).
AS 12.30.060(2).
District Court Judge David S. Landry issued a memorandum decision denying the motion to dismiss on September 29, 2005. Walluk appeals.
Discussion
Why we cannot determine from the record whether Walluk's Rule 45 right to a speedy trial was violated
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 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," "[t]he period of delay resulting from the absence or unavailability of the defendant," and "[o]ther periods of delay for good cause." Judge Landry ruled that there were seven days remaining under Rule 45 at the time that Walluk filed his motion to dismiss. But Walluk maintains that Judge Landry wrongly excluded certain periods from his Rule 45 calculation and that more than 120 days had elapsed when he filed his motion.
Alaska R. Crim. P. 45(b), (c).
Alaska R. Crim. P. 45(d)(2).
Alaska R. Crim. P. 45(d)(4).
Alaska R. Crim. P. 45(d)(7).
With respect to the six months from Walluk's October 30, 2004, arraignment to his May 3, 2005, scheduled trial date, the following facts are undisputed: Criminal Rule 45 ran from the date of Walluk's arraignment on October 30 until a bench warrant was issued for his arrest on January 18, 2005 — a total of seventy-nine days. Rule 45 was then tolled from January 18, the date the bench warrant was issued, until February 2, when the warrant was quashed. Rule 45 was tolled again from February 22, when Walluk requested a continuance, until May 3, when his attorney became available for trial.
The only disputed part of this six-month period is between February 2, when the bench warrant was quashed, and February 22, when Walluk received his continuance. In his order denying Walluk's motion to dismiss, Judge Landry found that this entire period was tolled "based upon continuances requested or due to the nonavailability of counsel." Walluk asserts that Rule 45 was running from February 2 to February 22. Therefore, he argues, a total of ninety-eight days had run under Rule 45 as of May 3, 2005.
Walluk's claim has some support in the record. At the February 2, 2005, hearing to quash the bench warrant, Magistrate Anna M. Moran tolled Rule 45 from January 18, when the warrant was issued, until February 2, when the warrant was quashed. At the February 22 trial call, Judge Landry reiterated that Rule 45 had been tolled from January 18 to February 2; he also found that it should be tolled again from February 22 to the April 19 trial date. At the April 6 trial call, Rule 45 was tolled again, until May 3, due to the unavailability of Walluk's attorney. There was no discussion at any of these hearings of tolling the period between February 2 and February 22.
We cannot tell from Judge Landry's order whether he simply erred in finding that Rule 45 had been tolled from February 2 to February 22, or whether he found cause to toll this period and failed to adequately explain his reasoning in the record. According to Judge Landry's calculations, only seven days remained under Rule 45 at the time Walluk filed his motion to dismiss. Therefore, Walluk would be entitled to dismissal of his case if this twenty-day period was erroneously excluded. We therefore remand the case for additional findings and, if necessary, an evidentiary hearing, on this issue.
Judge Landry excluded another forty-three days under Rule 45 between May 3, 2005, and July 20, 2005, because Walluk's attorney was at a conference, in another trial, handling the misdemeanor calendar in Homer, or unavailable for personal reasons. In his brief on appeal, Walluk does not assert that his attorney was actually available for trial on any of these forty-three days. He therefore has not shown that Judge Landry's decision to exclude these days was clearly erroneous. Conclusion
See Cook v. State, Alaska App. Memorandum Opinion No. 5113 (Sept. 6, 2006), 2006 WL 2578646 (rejecting identical claim).
We REMAND the case for additional proceedings consistent with this memorandum opinion. The district court shall forward its findings to this court within ninety days. The parties have until thirty days after the district court enters its findings on remand to submit supplemental briefing addressing those findings. We retain jurisdiction of this appeal.