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Wright v. State (3/27/2015) ap-2447

Wright v. State (3/27/2015) ap-2447

                                                    NOTICE
  

         The text of this opinion can be corrected before the opinion is published in the  

         Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

         errors to the attention of the Clerk of the Appellate Courts:   



                                  303 K Street, Anchorage, Alaska  99501
  

                                             Fax:  (907) 264-0878
  

                                     E-mail:  corrections @ akcourts.us
  



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



SEAN WRIGHT,  

                                                                   Court of Appeals No. A-10587  

                                   Appellant,                    Trial Court No. 3AN-99-9876 CR  



                          v.  

                                                                              O P I N I O N 

STATE OF ALASKA  

                                   Appellee.                        No. 2447 - March 27, 2015  

                                                                   

                                                                            



                  Appeal   from   the   Superior   Court,   Third   Judicial   District,  

                  Anchorage, Philip R. Volland and Michael Spaan, Judges.  



                  Appearances:  Marjorie Mock, under contract with the Public  

                  Defender   Agency,   and   Quinlan   Steiner,   Public   Defender,  

                  Anchorage, for the Appellant.  Timothy W. Terrell, Assistant  

                                                                            

                  Attorney General, Office of Special Prosecutions and Appeals,  

                                                                 

                  Anchorage, and Michael C. Geraghty, Attorney General, Juneau,  

                  for the Appellee.  



                  Before: Mannheimer, Chief Judge, Allard, Judge, and Smith,  

                  Superior Court Judge. *  

                                                 



                  Judge ALLARD.  



         *   Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  16   of  the  Alaska  



Constitution and Administrative Rule 24(d).  


----------------------- Page 2-----------------------

                    Sean Wright was convicted of one count of first-degree sexual abuse of a  



minor  and  multiple  counts  of  second-degree  sexual  abuse  of  a  minor  for  conduct  



involving his stepdaughter  and the daughter of a prior long-term girlfriend.  In this  

                                          



appeal, Wright argues that his constitutional right to a speedy trial under the federal and  



state constitutions was violated because there was almost five years of delay between the  

                                                                                                     



filing of the felony information charging Wright with this conduct and Wright's ultimate  

                                                                                    



arrest and subsequent indictment.  



                   We  conclude  that  Wright's  speedy  trial  right  claim  under  the  federal  



constitution is without merit given the generally accepted rule that a felony information  

                                           



filed in a court without jurisdiction to try the defendant is insufficient to trigger the  



protections of the Sixth Amendment's speedy trial provision.  Our analysis is different,  

                                                                    



however, for Wright's speedy trial claim under the Alaska Constitution.  Under our  

                                                                         



precedent,  the  filing  of  a  felony  information  triggers  the  protections  of  the  state  

                                                                       

constitutional right to a speedy trial.1  

                                                         We therefore conclude that Wright has a state  



                                                                                                                 

constitutional speedy trial claim with regard to the pre-arrest, pre-indictment delay that  



occurred in his case.  



                   However, for the reasons explained in this opinion, we conclude that a  



remand to the superior court is needed to properly resolve this claim.  On remand, the  



superior court must take into account not only the five years of pre-arrest delay, which  

                                                              



(as we explain) is fully attributable to the State, but also the five years of post-arrest  

            



delay, which the State claims is primarily attributable to Wright.  



                   As a separate point on appeal in his co-counsel brief, Wright also argues  



that  he  is  entitled  to  jail-time  credit  for  the  time  he  spent  on  electronic  monitoring  



pending his trial.  We find no merit to this claim and affirm the decision of the superior  

                                                               



court on this issue.  



          1    See State v. Mouser, 806 P.3d 330, 339 (Alaska App. 1991).  



                                                           - 2 -                                                       2447  


----------------------- Page 3-----------------------

         Facts and procedural history  



                   Evelyn Wright had three daughters from a previous marriage when she  



married Sean Wright in November 1996.  The family lived in Anchorage from 1996 until  

                                                                                      



the summer of 1998, when they moved to Wasilla.  



                   That  Halloween,  the  family  had  a  big  party.    Before  the  party  started,  



Evelyn went to look for ten-year-old K.A.  K.A.'s bedroom door was locked.  Wright,  

                                                                                                    



who was inside  the  room, opened the door and said he locked it because K.A. was  



fighting with her sister.  



                   Approximately three months later, in early February 1999, after watching  

                                                  



a video at school about pedophilia, K.A. told her mother that she was being sexually  



molested by Wright.  She reported that Wright came into her room on Halloween, locked  

                                                                                     



the door, took off his pants, and touched her vagina with his fingers and tongue.  



                   Evelyn  and  K.A.  confronted  Wright  about  K.A.'s  allegations.    Wright  



claimed he did not remember doing anything to K.A.  Wright moved out two weeks later.  

                                                                           



The day after Wright left,  Evelyn called the police.  



                   Alaska State Trooper Ruthan Josten was assigned to the case.  K.A. told  

                                                                                                              



Josten that Wright touched her breasts and vagina with his fingers and mouth and rubbed  



his penis against her vagina.  Evelyn told Josten that Wright may have also abused the  



daughter of his prior long-term girlfriend, M.C.  



                   Josten contacted M.C., who told Josten that Wright sexually abused her in  

                                                                           



Anchorage from 1987-1989, and that she went to live with her biological father to get  

                                                                                                          



away from Wright.  At trial, M.C. testified that Wright initially began by rubbing her  

                                                               



back and fondling her breasts.  Later, he grew bolder and began to touch her vagina; he  



would also rub his penis between her thighs without penetrating her or ejaculating.  



                   While the investigation into the sexual abuse was ongoing, Wright went to  

                                                                                         



visit his brother in Arkansas.  He subsequently decided to leave Alaska permanently.  



                                                          - 3 -                                                    2447
  


----------------------- Page 4-----------------------

                    In June 1999, after Wright left Alaska, Josten sent a report to the Palmer  



District Attorney's office requesting a warrant for Wright's arrest.  That request was  

                                                                              



initially  declined.    Five  months  later,  on  November  12,  1999,  the  Office  of  Special  



Prosecutions and Appeals filed a criminal information charging  Wright with eleven  

                                                                                                    



counts of sexual abuse of a minor.  An arrest warrant was issued four days later.  



                    The arrest warrant was entered into the Alaska Public Safety Information  

                                                        



Network (APSIN), an Alaska-only database. However, even though the State was aware  

                                                                                   



that Wright was living outside Alaska, the warrant did not designate Wright's offenses  

                          



as extraditable, nor did the State enter the arrest warrant into the FBI's National Crime  

                                                                                     



Information Center (NCIC) database.  Josten apparently commented at the time that the  

                                                          



State may have had financial reasons for not making the warrant extraditable.  



                    From 2000 to 2004, Josten ran periodic searches for Wright in a national  

                                                                                               



database  that  recorded  driver's  licenses,  deaths,  and  other  similar  information.    But  

                                                                



Josten's searches were not comprehensive or consistent, and she failed to locate Wright.  

                           



                    Wright  continued  to  communicate  with  Evelyn  by  telephone  and  mail  

                                                                           



during  this  time.    He  also  received  mail  from  the  State  of  Alaska  on  other  matters,  



including a notice of a hearing on the dissolution of his marriage to Evelyn from the  

                                  



Palmer trial court, a notice regarding his overdue student loans from the court system,  



and a death certificate that he requested from the Alaska Department of Health and  



Social Services.  



                    In addition, throughout this time, Wright worked at a number of nuclear  



facilities that required security clearances.  To obtain these clearances, Wright provided  

                                                                 



his name, address, date of birth, and social security number, along with copies of his  



driver's  license  and  social  security  card.    Had  the  warrant  for  Wright's  arrest  been  



entered into the national NCIC database, Wright's employers would have discovered the  

                                                                                                             



arrest warrant and the sexual abuse charges.  



                                                             - 4 -                                                        2447
  


----------------------- Page 5-----------------------

                                 On September 17, 2004, almost five years after the felony information was                                         



filed, Sergeant Iliodor Kozloff of the Alaska State Troopers received a voicemail inquiry       



about Wright from a manager at a nuclear facility in Minnesota.   Kozloff ran Wright's   



name through the APSIN database and saw that there was a warrant for Wright's arrest.           



He also checked NCIC, but discovered that the warrant was not in that database.  Kozloff     



contacted  the   District  Attorney's  office,  which  then  made  the  decision  to  extradite  



Wright and to enter the warrant into NCIC. Kozloff arranged for the local sheriff's office    



to arrest Wright when he returned to the facility the next day.  



                                 Wright waived extradition, and the Alaska State Troopers brought Wright  



back to Alaska, where a grand jury indicted him on eighteen counts of first- and second- 

                                                          



degree sexual abuse of a minor for conduct involving K.A., M.C., and a third girl, T.W. 

                                                                                     



 (The counts involving T.W. were later dismissed because the statute of limitations had  

                                                                                                



                             2 

already run. ) 



                                                                                                                                                                                                    

                                 Just under a year after the grand jury issued its indictment, Wright filed a  



motion to dismiss the indictment, arguing that the almost five-year delay between the  



                     

filing of the felony information  and his arrest violated due process and his constitutional  



right to a speedy trial.  



                2        The counts involving T.W. related to conduct alleged to have taken place in either     



 1979 or 1980.  At that time, the statute of limitations for first- and second-degree sexual  

abuse of a minor was five years.  See former AS 12.10.010 (1980).  In 1983, the legislature  

extended the applicable limitations period an additional five years.  Because the original  

statute of limitations had not yet run, this meant that the statute of limitations for the alleged  

conduct involving T.W. expired sometime in either 1989 or 1990.  See  State v. Creekpaum ,  

753 P.2d 1139, 1144 (Alaska 1988) (describing 1983 legislative changes and consequences  

for cases where the original statute of limitations had not yet expired).  

                        In 1992, the legislature abolished the statute of limitations for first- and second- 

degree sexual abuse of a minor.  See ch. 79,  19, SLA 1992; see also ch. 86,  2, SLA 2001.  

The charges involving T.W. were nevertheless time-barred because the statute of limitations  

had already run before the legislative change went into effect.        

                                                                                                    - 5 -                                                                                              2447  


----------------------- Page 6-----------------------

                           Superior Court Judge Philip R. Volland denied Wright's motion, finding  



that the pre-arrest delay was partially attributable to Wright because he had failed to  

                                                                              



follow-up on the results of the investigation and because his frequent moves made him  

                                                                                                  



difficult to locate.  Judge Volland also found that Wright had not shown that he had  



suffered  any  actual  prejudice  from  the  pre-arrest  delay.    Wright  filed  interlocutory  

                                                                          

petitions to this Court and the Alaska Supreme Court, which were denied.3  



                                                                        

                           In the years following his arrest, Wright continued to litigate other pretrial  



issues and also changed lawyers multiple times.  Wright's case finally went to trial in  



May 2009, almost five years after his arrest and indictment, and almost ten years after  



the  initial  filing  of  the  felony  information.    Wright  was  out  on  bail  on  electronic  



monitoring for the majority of the post-arrest, post-indictment period of time.  



                           On the eve of trial, Wright filed a "renewed motion to dismiss because of  

                                                                                                



prosecutorial delay," again arguing that the pre -arrest delay violated his constitutional  

                                                                         



speedy trial rights.  Wright did not make any speedy trial claims about the five-year post - 

                                                                                                                                                                     



arrest delay.  



                           Superior Court Judge Michael Spaan, who presided over Wright's trial,  



denied the renewed speedy trial motion "for the reasons given by Judge Volland."  



                           At trial, K.A. testified with specificity about the incidents of sexual abuse  

                                  



that occurred in Anchorage and the details of the Wasilla Halloween incident.  However,  

                                                                                          



K.A. was unable to recall details about the other sexual abuse that was alleged to have  

                                                                                



occurred in Wasilla.  Based on K.A.'s lack of recall, Judge Spaan granted Wright's  



motion for judgment of acquittal on those Wasilla counts.  



             3      Wright also filed a petition for habeas corpus in federal district court. The petition                                              



was dismissed without prejudice under the doctrine of federal abstention.  Wright appealed     

this dismissal to   the   Ninth Circuit, which affirmed on the same procedural ground.   See  

 Wright v. Volland, 331 Fed. App'x 496 (9th Cir. 2009).  

                                                                                  - 6 -                                                                             2447  


----------------------- Page 7-----------------------

                    M.C. also testified at trial and was able to recall all of the alleged incidents  

                                                                        



of sexual abuse.  



                    Before  the  jury  retired  to  deliberate,  Wright  renewed  his  speedy  trial  

                                                                               



motion, claiming that the trial had shown that he was prejudiced by the pre-arrest delay.  

                                                                     



Judge Spaan again denied the motion, finding that the trial had not shown any prejudice  



to Wright's defense caused by the pre-arrest delay.  



                    The jury convicted Wright of the eight counts of sexual abuse of a minor  

                                                                                



involving M.C. and the remaining five counts of sexual abuse involving K.A.  



                    Judge Spaan sentenced Wright to a composite term of 14 years with 2 years  

                                                                                                        



suspended, 12 years to serve, and 10 years of supervised probation.  Wright requested  



jail-time credit for the years he spent on electronic monitoring prior to trial.  The court  

                                                         



denied this request, ruling that Wright was not entitled to jail-time credit for electronic  

                                                                                       



monitoring.  



                    This appeal followed.  



  



                                                             - 7 -                                                        2447
  


----------------------- Page 8-----------------------

            Wright's claim that he became formally "accused" for purposes of the   

            state  and  federal  speedy  trial  provisions  when  the  State  filed  a  felony  

            information in district court  



                       The  speedy  trial  clause  of  the  Sixth  Amendment  to  the  United  States  



Constitution provides, in relevant part, that "[i]n all criminal prosecutions, the accused  

                                                                                           

 shall enjoy the right to a speedy and public trial ... ."4   Article I, Section 11 of the Alaska  

                                                                                            



Constitution contains a nearly identical provision:  "In all criminal prosecutions, the  

accused shall have the right to a speedy and public trial ... ."5  



                                                                                              

                       Under both provisions, a defendant must qualify as an "accused" before the  



                                                                                               6  

                                                                         

protections of the speedy trial provisions are triggered.   "The general rule [is] that the  



                                                                                                                

 speedy trial right attaches at the time of arrest or formal charge, whichever comes first  



        7  

 ... ."                                                      

           But the federal definition of "formal charge"differs from the definition under our  



 state constitution.  



                                                                                                

                       The federal courts have repeatedly  held  that, for purposes of the Sixth  



                                                                                                               

Amendment, a "formal charge" means a criminal charge that "alone gives the court  



                                                            8  

                                                                                   

jurisdiction to proceed to trial ... ."                        Therefore, a felony information filed in an Alaska  



            4     U.S. Const. amend. VI.  



            5     Alaska Const. art. I,  11.  



            6     United States v. Marion, 404 U.S. 307, 320-21 (1971);                                     State v. Mouser, 806 P.2d  



330, 338 (Alaska App. 1991).  



            7     5 Wayne R. LaFave, Jerold  H. Israel, Nancy J. King & Orin S. Kerr, Criminal  



Procedure  18.1(c), at 110 (3d ed. 2007); see Mouser , 806 P.2d at 339 (citation omitted).  



            8     5 Wayne R. LaFave, Jerold                       H. Israel, Nancy J. King & Orin S. Kerr,                             Criminal  



Procedure   18.1(c), at 111 (3d ed. 2007);                           see United States v. Harris , 551 Fed. App'x 699,   

704 (4th Cir. 2014) ("The Sixth Amendment right to a speedy trial does not apply to ... pre-                                            

                                                                                                                                

indictment delay, as it does not attach until the defendant has been indicted or arrested.")  

                                                                         

(internal quotation marks omitted);  United States v. Madden, 682 F.3d 920, 930 (10th Cir.  

                                                                                                                                (continued...)  

                                                                       - 8 -                                                                 2447  


----------------------- Page 9-----------------------

district  court,  which  has  no  jurisdiction  to  try   the   defendant  on  felony  charges,  is  

insufficient to trigger the speedy trial protections of the Sixth Amendment.                                                  9  Instead, this  



                                                           

type of pre-arrest, pre-indictment delay is evaluated only as pre-accusation delay under  

the due process clause of the federal constitution.10  

                                                                                          And, unlike a speedy trial claim, a  

pre-accusation claim always requires proof of actual prejudice to the defense. 11  



                                                                                                                         

                       Here, Wright makes no pre-accusation delay claim and largely concedes  



that he cannot meet the actual prejudice standard required for such a claim.  Instead, his  



            8     (...continued)  



                                                                                                                                   

2012); United States v. Dowdell, 595 F.3d 50, 61 (1st Cir. 2010); United States v. Rose, 365  

Fed. App'x 384, 389 (3rd Cir. 2010) (absent arrest, indictment required to trigger speedy trial           

right); United States v. Sprouts, 282 F.3d 1037, 1042 (8th Cir. 2002);                                            Cowart v. Hargett, 16  

          

F.3d  642,  (5th  Cir.  1994);  Pharm  v.  Hatcher ,  984  F.2d  783,  785-86  (7th  Cir.  1993)  

(defendants  are  only  "accused"  for  purposes  of  the  Sixth  Amendment  when  an  official  

                                                                                                           

charging  document  vesting  the  court  with  jurisdiction  to  try  them  is  filed);  Arnold  v.  

McCarthy ,  566  F.2d  1377,  1382  (9th  Cir.  1978)  (a  defendant  is  not  "accused"  prior  to  

indictment even if a felony complaint has been filed); Favors v. Eyman , 466 F.2d 1325,  

 1327-28 (9th Cir. 1972) (filing of a criminal complaint does not trigger a defendant's Sixth                             

                                                 

Amendment rights);  but see United States v. Terrack, 515 F.2d 558, 559 (9th Cir. 1975)  

(noting that "the filing of a criminal complaint, or the indictment where there is no complaint,   

                                                                      

marks  the  inception  of  the  speedy  trial  guarantee  of  the  Sixth  Amendment")  (internal  

quotations omitted).  



            9    See People v. Martinez, 996 P.2d 32, 35 (Cal. 2000) (recognizing that filing of  



federal  complaint  in  court  without  jurisdiction  to  try  the  defendant  does  not  trigger  

protections of Sixth Amendment but does trigger protections of speedy trial clause of the  

California Constitution).  



            10   See United States v. Lovasco, 431 U.S. 783, 790 (1977); State v. Gonzales, 156  



P.3d 407, 411 (Alaska 2007).  



            11   Lovasco ,  431  U.S.  at  790  (proof  of  actual  prejudice  is  "a  necessary  but  not  



sufficient element of a due process claim"); Gonzales, 156 P.3d at 411 ("To establish an  

                                                                                                                           

unconstitutional pre-indictment delay, the defendant must prove both that the delay was not  

reasonable and that the defendant suffered actual prejudice from the delay.").  



                                                                       - 9 -                                                                 2447
  


----------------------- Page 10-----------------------

federal  claim  for  relief  relies  on  his  assumption  that  the  protections  of  the  Sixth  



Amendment  apply  to  the  pre-arrest,  pre-indictment  delay  that  occurred  in  his  case.  



Because that assumption is incorrect, we conclude that there is no merit to Wright's  



federal speedy trial claim.  



                   However,   the   speedy   trial   analysis   is   different   under   the   Alaska  



Constitution.  In State v. Mouser, this Court acknowledged the "general consensus" that  



speedy trial rights are triggered by the formal filing of a public charge "in a form that  

would vest the court in which it is filed with jurisdiction to try the accused." 12  

                                                                                                               But we  



nevertheless  held  that  the  filing  of  a  felony  information  in  district  court  was  still  

sufficient to trigger the protections of the Alaska Constitution's speedy trial clause.13  



                                                        

                   We based this holding, in part, on the Alaska Supreme Court's decision in  

Yarbor v. State.14  

                          In  Yarbor, the State served a felony complaint on the defendant and  

subsequently indicted him.15                               

                                          On appeal, Yarbor argued that his right to a speedy trial  



                                                                                 

under the state constitution attached as soon as the State had probable cause to charge  



                                                                                                   16  

                                                                                                       

him with a crime, even if the State had not yet initiated the prosecution.                             The supreme  



                                                                                                                 

court disagreed, holding instead that Yarbor's state speedy trial rights began to run on  



the date he became formally "accused" - which the court characterized as the date  

Yarbor became "the subject of a filed complaint or an arrest."17  



          12  State v. Mouser, 806 P.2d 330, 339 (Alaska App. 1991).  



          13  Id.  



          14  546 P.2d 564 (Alaska 1976).  



          15  Id.  at 565-66.  



          16  Id. at 566.  



          17  Id.  at 567.  



                                                        -  10 -                                                   2447
  


----------------------- Page 11-----------------------

                      The State argues that this language in Yarbor  was dictum and does not bind   



this Court.  The State further argues that Mouser  was wrongly decided and should be  



overturned.  



                      We  recognize  that  there  is  persuasive  value  in  the  State's  arguments,  



particularly in the context of Wright's case.  Wright asserts that he was unaware of the  

                                                                                        



felony charges until his arrest, which means he was able to live freely and openly during  

                                                                                             



this time, unaffected by the anxiety, stress, and "public obloquy" that such charges might  

                                                                      



otherwise bring.  

                      We nevertheless decline to overrule Mouser for two reasons.18  

                                                                                                                            First,  as the  



State  recognizes,  we  have  no  authority  to  overturn  Yarbor,  and  we  are  not  fully  



persuaded that  Yarbor should be read as narrowly as the State suggests.  The question  

                                                                                         



in Yarbor was when the defendant's speedy trial rights began to run.   Yarbor involved  

                                    



a defendant who was subject to both a felony complaint and a later indictment, and the  

                                                                                                                



supreme court appears to have decided that his speedy trial rights commenced upon the  

                                                    

filing of the felony complaint.19  



                                                                                                 

                      Second, we still agree with  the underlying  reasoning  in Mouser  that  a  



felony information (even without an indictment) represents the State's decision to end  



the investigatory phase of a case and formally and publicly charge the suspect with a  

crime.20  



           18    See State v. Fremgen, 914 P.2d 1244, 1245 (Alaska 1996) (a prior decision should   



be overruled only if the court is clearly convinced that the precedent is erroneous or no longer         

sound because  of  changed conditions, and that more good than harm would result from  

overturning the case).  



           19    Yarbor, 546 P.2d at 567.  



           20   Mouser , 806 P.2d at 339.  



                                                                  -  11 -                                                              2447
  


----------------------- Page 12-----------------------

                     Accordingly, we conclude that Mouser remains good law and that Wright   



became "accused" for purposes of Alaska's constitutional speedy trial protections  when     



the felony information was filed.  



           Why we conclude that a remand is required to resolve Wright's speedy trial       

          claim under the Alaska Constitution  



                                                                                                           

                     Speedy trial claims under the Alaska Constitution are governed  by  the  



Mouser/Barker test, which directs courts to consider and balance four factors:  (1) the  



length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of his  



                                                                                      21  

                                                                                          None of these four factors is  

speedy trial right; and (4) the prejudice to the defendant. 



sufficient, on its own, to support a finding that a defendant's speedy trial right was  



              22  

violated.         Rather,   the   factors   "must   be   considered   together   with   such   other  

circumstances as may be relevant."23  



                                                                                                                    

                     Because the ultimate inquiry is whether the delay in bringing the accused  



to  trial was unreasonable, this analysis necessarily takes account of the total pretrial  



delay.  As the United States Supreme Court explained in United States v. MacDonald:  



                     Before trial, of course, an estimate of the degree to which  

                               

                     delay   has   impaired   an   adequate   defense   tends   to   be  

                     speculative.  The denial of a pretrial motion to dismiss an  

                                                                                           

                     indictment on speedy trial grounds does not indicate that a  

                     like motion made after trial - when prejudice can be better  

                                                                          

                     gauged - would also be denied.  Hence, pretrial denial of a  

                     speedy  trial  claim  can  never  be  considered  a  complete,  

                     formal, and final rejection by the trial court of the defendant's  

                                  

                     contention;  rather,  the  question  at  stake  in  the  motion  to  

                                                                                                 



          21   Id. at 340 (quoting Barker  v. Wingo, 407 U.S. 514, 530 (1972)).  



          22   See id.; see also Barker , 407 U.S. at 533.  

                                                     



          23   Barker , 407 U.S. at 533.  



                                                              -  12 -                                                        2447
  


----------------------- Page 13-----------------------

                    dismiss       necessarily         "remains         open,      unfinished         [and]  

                    inconclusive" until the trial court has pronounced judgment.24  



                    1.  Length of the Delay  



                    The first factor, the length  of the  delay "is to some extent a triggering  

                                                                   

mechanism" for the rest of the balancing test.25  

                                                                                                              

                                                                         Unless a defendant can show that the  



                                                                                                    

delay in his case caused actual prejudice, the defendant must show that the length of the  

delay was sufficient to qualify as "presumptively prejudicial."26  



                                                                                                             

                    Under Alaska law, the length of delay is calculated by first excluding any  



                                                            27 

                 

periods of delay caused by the defendant.                       Once this delay is excluded, any unexplained  



                                                     

delay of fourteen months or longer is generally considered presumptively prejudicial for  

purposes of triggering inquiry into the other Mouser/Barker factors.28  



          24   United  States  v.  MacDonald,  435  U.S.  850,  858-59  (1978)  (quoting  Cohen  v.  



Beneficial Indus. Loan Corp. , 337 U.S. 541, 546 (1949)); see In re Kashamu , 769 F.3d 490,  

                          

492  (7th  Cir.  2014)  ("[U]ntil  the  [trial]  court  proceedings  are  complete,  the  causes  and  

duration of the delay, the defendant's responsibility for it, and the harm to the defendant for  

the delay, cannot be determined.").  



          25   Mouser , 806 P.2d at 340 (quoting Barker , 407 U.S. at 530).  



          26   Id. (citing Barker , 407 U.S. at 530).  



          27   Springer v. State, 666 P.2d 431, 435 (Alaska App. 1983) (citing Tarnef v. State,  

                                                              

512 P.2d 923, 933 (Alaska 1973)).  



          28   Compare  Rutherford   v.   State ,  486  P.2d  946,  947,  951-52  (Alaska  1971)  

                              

(fourteen-month  delay  presumed  prejudicial),  Glasgow  v.  State,  469  P.2d  682,  688-89  

(same), and Mouser, 806 P.2d at 339-40 (noting that "unexplained delays of fourteen months              

or more [are] presumptively prejudicial" and holding that approximately twenty-month delay  

                                                                                                             

must be deemed prejudicial),  with Nickerson v. State, 492 P.2d 118, 120  (Alaska 1971)  

(absent actual prejudice, eight-month delay is not presumptively prejudicial).  



                                                            -  13 -                                                       2447
  


----------------------- Page 14-----------------------

                   Here, Judge Volland found that the almost five years of pre-arrest delay  



qualified as presumptively prejudicial for purposes of triggering inquiry into the other  



Mouser/Barker factors.  The State does not dispute this finding.  



  



                   2.  Reason for the Delay  



                   The second factor,  the reason for the delay, is an inquiry into "whether the  

                                                                                      

government or the criminal defendant is more to blame for [the] delay."29  Evidence that  



                                                                              

the prosecution engaged in deliberate delay to gain a tactical advantage weighs heavily  



                                                                                       

against the government while more neutral reasons, such as negligence or overcrowded  



                                                                                   30  

courts,  weigh  less  heavily  but  are  nonetheless  relevant.                          Delay  attributable  to  the  

defendant or to defense counsel weighs against the defendant.31  



                   Here, Judge Volland found that the blame for the pre-arrest delay rested  



with  both  the  State  and  Wright.    The  judge  faulted  the  State  for  failing  to  issue  an  



                                                                                                                 

extraditable warrant, but the judge also found that Wright's departure from the state, and  



                                                                            

his frequent changes of residence, made the State's efforts to locate him more difficult  



and expensive and were thus "causes of delay" directly attributable to him.  



                   Wright argues that he should not be held responsible for any of the pre- 



                                                                                                  

arrest delay, given that he was unaware that charges had been filed, and given that none  



of his actions were directed at avoiding apprehension.  



          29  Doggett v. United States , 505 U.S. 647, 651 (1992).  



          30  Barker , 407 U.S. at 531; see Doggett, 505 U.S. at 657.  



          31   Vermont v. Brillon, 556 U.S. 81, 90 (2009).  



                                                          -  14 -                                                     2447
  


----------------------- Page 15-----------------------

                      We agree.  As the State concedes in its appellate briefing, "Wright was not   



hiding out, and the State had avenues of locating him that likely would have produced   

him within a brief period."32  



                                              

                      We note that although Wright moved frequently for work, he maintained  



                                                                                             

an Arkansas driver's license and a physical address that other Alaska state agencies used  

to communicate with him.33  Wright also repeatedly passed intensive security clearances  



that would have uncovered the arrest warrant if the information had been entered into the  

                                                                                     



NCIC database.  Given these facts, we conclude that the trial court erred in attributing  



partial blame for the pre-arrest delay to Wright.  



                                                                                             

                      However, the question of who is to blame for the lengthy post -arrest delay  



must be resolved by the superior court on remand.  Although the State asserts that the  



                                    

bulk of this delay is attributable to Wright, the court made no direct findings on this  



issue.  



                      3.  Wright's Assertion of his Right to a Speedy Trial  



                                                   

                      The third factor is whether, and when, the defendant asserted his right to  



                                                                                     

a speedy trial.  A defendant's failure to assert the right to a speedy trial will generally  

make it difficult to prove he was denied that right.34  



           32    See   United States v. Boone, 706 F. Supp. 2d 71, 74-75 (D.D.C. 2010) (defendant       



not to blame for delay, even though he was aware of the investigation against him, when the  

defendant had no knowledge of the arrest warrant and was living at a relative's house where             

the government had reason to believe he resided).  



           33    See United States v. Brown , 535 F.3d 344, 349 (6th Cir. 1999) (defendant not to  

                                                                                                     

blame for delay where defendant unaware of indictment and law enforcement did not attempt   

to contact defendant even though they knew they could potentially reach him through his   

attorney).  



           34    See Barker, 407 U.S. at 529, 532.  



                                                                   -  15 -                                                               2447
  


----------------------- Page 16-----------------------

                             Judge Volland found that Wright failed to assert his speedy trial right as   



soon as he could have because Wright failed to inquire into the status of the police                                                                                 



investigation to determine if charges had been filed.  But we agree with Wright that a   



defendant's knowledge that he is being investigated is not the same as knowledge that   



                                              35  

                                                   Because Wright was unaware that charges had been filed, his  

he has been accused.                                                                      

failure to assert his speedy trial right prior to his arrest cannot be weighed against him.36  

                                                                                                        



                             However,  Wright's  actions  after  he  became  aware  of  the  charges  are  

                                                                                                                                                                                    



relevant to the superior court's assessment of this factor.  As the United States Supreme  

                                                                    



Court explained in  United States v. Loud Hawk, a defendant's assertion of his speedy  

                                                                                                           



trial right must be viewed in the context of the defendant's other conduct, including the  

                                                                                                     



                                                                                                                        37  

filing of frivolous, repetitive, or unsuccessful motions.                                                                    Conduct suggesting that the  

                                                                                                     



defendant was not actually interested in a speedy trial, despite his protestations that his  

                                                                                                                                        

speedy trial rights have been violated, weigh against the defendant.38  



               35     See Boone , 706 F. Supp. 2d at 77 ("Mere awareness that the police are looking for                                 



a person does not obligate that person to affirmatively seek out the police to find out what,                                               

if any, problem exists."); see also United States v. Molina-Solorio                                                                      , 577 F.3d 300, 306 (5th  

Cir. 2009) ("[T]he law does not require [a defendant] to assume the existence of, and ask for                                                                  

a speedy trial on, a charge he is not actually aware of.").  



               36    Doggett , 505 U.S. at 653-54.  



              37      United States v. Loud Hawk, 474 U.S. 302, 314-15 (1986); see also United States  

                                                                                           

v. Frye , 489 F.3d 201 (5th Cir. 2007); United States v. O'Dell, 247 F.3d 655 (6th Cir. 2001).  

                                                       



               38    Loud Hawk, 474 U.S. at 315 (noting that the filing of "repetitive and unsuccessful  



motions" that serve to delay trial militates against finding that a defendant has asserted his  

                                                                                                                                      

speedy trial rights even when the defendant simultaneously moves for dismissal on speedy  

                                                                                                                                                                       

trial grounds);  see also   Frye , 489 F.3d at 211-12 (finding that motions                                                                              for dismissal on  

speedy  trial  grounds  do  not  amount  to  an  assertion  of  the  speedy  trial  right  where  the  

                                                                                                                                                                      

defendant also repeatedly sought continuances);  O'Dell, 247 F.3d at 671-72 (finding that  

defendant did not assert his right to a speedy trial where he simultaneously filed multiple   

                                                                                                                                                                  (continued...)  



                                                                                       -  16 -                                                                                   2447
  


----------------------- Page 17-----------------------

                     Here,  Judge  Volland  expressed  concern  that  Wright  was  using  various  



                                                           

tactics to intentionally delay his trial.  The State points to other instances of what appear  



                                                              

to be delaying tactics on Wright's part, including repeatedly filing pro se motions that  



                                                                                

he had been warned would not be entertained by the court.   We agree that Wright's post- 



                                                                                                                    

arrest conduct is relevant to the superior court's determination of whether, and to what  



extent, this factor weighs in Wright's favor.  



                     4.  Prejudice to Wright  



                                                                     

                     The fourth factor, prejudice, is assessed in the light of the purposes of the  



                                               

speedy trial provision:  (1) to prevent undue and oppressive incarceration prior to trial;  



(2) to minimize the anxiety and concern accompanying public accusation; and (3) to  

minimize  delays  that  impair  the  accused's  ability  to  defend  against  the  charges.39  



Because Wright was unaware that he had been charged prior to his arrest and was not  



incarcerated prior to his arrest, he can only claim the third type of prejudice.  



                     This third type of prejudice - damage to the defense - is the most serious  

                                             



                                       40  

and the hardest to prove.                  As the United States Supreme Court has noted, "what has  

                              



                                                       41  

been forgotten can rarely be shown."                       Therefore, when the other Mouser/Barker factors  



(...continued)  

delaying motions).  



          39   State v. Mouser, 806 P.2d 330, 338 (Alaska App. 1991) (citing                             Rutherford v. State ,  



486 P.2d 946, 947 (Alaska 1971));                  see Doggett, 505 U.S. at 654 (citations omitted); Barker ,  

407 U.S. at 532 (citations omitted).  



          40   Doggett , 505 U.S. at 655; Barker, 407 U.S. at 532.  



          41   Barker , 407 U.S. at 532.  



                                                              -  17 -                                                         2447
  


----------------------- Page 18-----------------------

weigh heavily against the State, a showing of possible prejudice may be sufficient for the        

accused to prevail.42  



                                                     

                       Wright contends that because the pre-arrest delay in his case was so long,  



                                     

the court must apply an irrebuttable presumption of prejudice in his case.  Although we  



agree with Wright that a presumption of prejudice applies to this case because of the  



length of the pre-arrest delay, we disagree that this presumption is irrebuttable.  



                       In Doggett v. United States , the United States Supreme Court recognized  



                                                                                                  

that particularly lengthy and excessive pretrial delay can compromise the reliability of a  



                                                                                                                         43  

                                                                                                                              But the Court  

trial in ways that "neither party can prove, or, for that matter, identify." 



also recognized that "presumptive prejudice cannot alone carry a Sixth Amendment claim  

                                                                                                                       

                                                                         44   Instead, presumed prejudice is "part of the  

without regard to the other Barker criteria."  

                                                                                                                               



                                                                                                                                       45  

mix of relevant facts and its importance increases with the length of the delay."                                                          Thus,  

                                                                                               



a  defendant  is  not  entitled  to  relief  based  on  excessive  delay  if  the  presumption  of  

                       



prejudice is "extenuated, as by the defendant's acquiesence," or if the presumption of  

                                                       

prejudice is persuasively rebutted by the government.46  



           42    Mouser , 806 P.2d at 342.  



           43    Doggett  v.  United  States ,   505  U.S.   647,   658  (1992)   (granting   relief  in  case  



involving eight and a half years of post-indictment delay).   

                 We note that Doggett  and the other federal case law cited in this opinion remain                   

merely  persuasive  authority   in  Wright's  case  because  Wright's  claim  is  limited  to  the  

additional protections he has under the Alaska Constitution.                                         See Waiste v. State , 10 P.3d  

1141, 1146-47 (Alaska 2000); cf. People v. Martinez, 996 P.2d 32, 36 (Cal. 2000) (declining                               

to adopt Doggett  analysis for pre-indictment pre-arrest speedy trial claim that could only be     

raised under state constitution).  



           44    Doggett , 505 U.S. at 656 (citing Loud Hawk, 474 U.S. at 315).  



           45    Doggett , 505 U.S. at 655-56.  

                                 



           46    Id. at 658.  



                                                                     -  18 -                                                               2447
  


----------------------- Page 19-----------------------

                     In this case, we have no findings on whether the lengthy post-arrest delay  



in this case extenuated the presumption of prejudice caused by the pre-arrest delay. Nor  



do we have findings on whether the State can successfully rebut the  presumption of  



prejudice.  The State urges us to find that it successfully rebutted any presumption of  



                                              

prejudice in Wright's case.  It points out that the sexual abuse charges involving M.C.  



                                                                                                                        

were already a decade old at the time the charges were filed against Wright and that long  

                                                                                                47   The State also points out  

delays in reporting are not uncommon in sexual abuse cases.                                                           



that K.A.'s memory problems at trial ultimately prejudiced the State rather than Wright,  

                    



resulting  in  the  trial  judge  granting  judgments  of  acquittal  on  some  of  the  counts  

                                                              



involving K.A.   



                     We agree that these are important factors to consider in evaluating whether  



the State rebutted the presumption of prejudice caused by the pre-arrest delay.  But we  



conclude that this question is more appropriately resolved by the superior court as part  



of the larger remand needed in this case.  



                     We  therefore  direct  the  superior  court  on  remand  to  reassess  Wright's  



speedy trial claim under the Alaska Constitution.  In assessing Wright's claims under the  



                                                                                                                    

Mouser/Barker test, the superior court should consider the total amount of pretrial delay  



                                                          

that occurred in this case - that is, both the pre-arrest delay (which is attributable to the  



State for the reasons explained in this opinion) and the post-arrest delay (which has not  



yet been litigated and will require additional findings).  In addition, the superior court  



             

should consider (1) whether the presumed prejudice caused by the pre-arrest delay in  



           47   Cf. Minutes of House Judiciary Committee, House Bill 396, testimony of Cindy     



Smith, Executive Director of Alaska Network on Domestic Violence and Sexual Assault, log  

no. 375 (Jan. 17, 1998) (testifying in favor of eliminating statute of limitations for certain   

sexual abuse offenses because many victims of child sex abuse do not come forward until       

years after the offense and delay is not uncommon in prosecuting these cases).  



                                                                -  19 -                                                            2447
  


----------------------- Page 20-----------------------

Wright's case was extenuated by his subsequent post-arrest conduct; and, if not, (2)   



whether the State can successfully rebut the presumption of prejudice.  



                    Once  the  superior  court  accords  the  proper   weight  to  each  of  the  



                                                            

Barker/Mouser  factors, it must balance all four factors to determine whether Wright's  



                                                             

constitutional speedy trial right under the Alaska Constitution was violated.  The superior  



                                                                                                       

court should provide a copy of its written decision on this issue to this Court which will  



resume consideration of Wright's case at that time.  



                                                          

          Why we conclude that Wright is not entitled to jail-time credit for the time  

          he spent on electronic monitoring prior to trial  



                   At sentencing, Wright requested jail-time credit for the time he spent on  



electronic monitoring prior to trial.  The superior court denied this request.  



                    In  his  co-counsel  brief,  Wright  argues  that  this  decision  was  error.    He  

                                                                                                                          



acknowledges that AS 12.55.027(d) prohibits credit against a sentence of imprisonment  

                                                                                                        



for time spent on electronic monitoring, but he argues that the statute should not apply to  

                                                                                                               



him because it went into effect after he began his electronic monitoring.  



                                                                                                                      48  

                   We rejected a similar ex post facto claim in Fungchenpen v. State .  

                                                                                                                          We       



held that the legislature's purpose in enacting AS 12.55.027 was to clarify pre-existing  



law and to confirm that jail-time credit would not be given for time served on electronic  

                                                                                            

monitoring; the statute did not create new law.49  

                                                                        Our decision in Fungchenpen controls  



Wright's claim.  



                   Wright also argues that the restrictions placed on his freedom through the  



electronic monitoring denied him liberty without due process of law, and that his bail  

                                                                                 



conditions were excessive in violation of the Fourteenth Amendment.  



          48   181 P.3d 1115 (Alaska App. 2008).  



          49  Id.  at 1116.  



                                                           - 20 -                                                      2447
  


----------------------- Page 21-----------------------

                    We find no merit to these claims.  In Matthew v. State , the defendant was  



subject to electronic monitoring and his conditions of release required him to be at his  

                                



residence,  his  work,  or  directly  commuting  between  the  two,  and  to  not  consume  

                 

alcohol.50  

                We found that these conditions of release did not approximate incarceration  



                                                                                            

because Matthew was unencumbered by institutional rules - as long as he was at home  



                                                                                                                               51  

                                                                                        

or at work, he could do whatever he wanted and associate with whomever he wanted. 



                                                                                                  

Wright's conditions of release were more lenient than Matthew's, and were likewise not  



                                 

excessive or a denial of due process.  We therefore affirm the superior court's decision  



denying Wright credit for time spent under electronic monitoring.  



          Conclusion  



                                                                                       

                    We REMAND this case to the superior court for further findings consistent  



with  this  opinion.    We  retain  jurisdiction.    The  superior  court  shall  issue  its  written  



                                                                      

decision within 90 days of the issuance of this opinion.  If the parties wish to respond to  



the findings on remand, they shall file their memoranda within 30 days thereafter.  



          50   Matthew v. State , 152 P.3d 469, 472 (Alaska App. 2007).  



          51   Id . at 472-73.   



                                                           - 21 -                                                        2447  

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