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State v. Andreanoff (3/4/2016) ap-2495

State v. Andreanoff (3/4/2016) ap-2495

                                                                     NOTICE
  

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                      IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



STATE OF ALASKA,  

                                                                                       Court of  Appeals No. A-11955  

                                               Appellant,                              Trial Court No. 4BE-14-20 CR  



                                   v.  

                                                                                                      O P I N I O N  

SAMMY ANDREANOFF,  



                                               Appellee.                                  No. 2495 - March 4, 2016  



                                              

                       Appeal from the District Court, Fourth Judicial District, Bethel,  

                       Nathaniel Peters, Judge.  



                       Appearances:  Daniel Doty, Assistant District Attorney, Bethel,  

                                                 

                       and  Michael  C.  Geraghty  and  Craig  Richards,  Attorneys  

                                                                        

                       General,  Juneau,  for  the  Appellant.                           Lindsay  Van  Gorkom,  

                                                                                                         

                       Assistant          Public        Defender           and       Quinlan         Steiner,         Public  

                       Defender, Anchorage, for the Appellee.  



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

                                                                        

                        Superior Court Judge. *  

                                                                



                       Judge ALLARD.  



                       In this appeal we are asked to decide how a defendant's speedy trial rights                                             



under Alaska Criminal Rule 45 should be calculated in cases where a trial court has                                                               



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



Constitution and Administrative Rule 24(d).  


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

dismissed criminal charges on its own motion and the State later refiles those same                                                                                   



charges.   



                           Alaska Criminal Rule 45 governs a criminal defendant's statutory speedy                                                                 



trial rights under Alaska law. Under Rule 45, a defendant "shall be tried within 120 days                                                                               



                                                                                                                                               1  

                                                                                                                                                                     

... from the date the charging document is served upon the defendant."                                                                             In cases where  



criminal charges are dismissed by the prosecution and later refiled by the prosecution,  



                                                                                                                                                                             

Rule 45(c)(2) provides that the time for trial continues to run from the date of service of  



                                                                                                                                                             

the original charges.  The same provision also provides that if the charges are dismissed  



                                                                                                                                                                           

by the court upon motion of the defendant, the time for trial begins running anew on the  



                                                                                                          2  

                                                                                     

date the refiled charges are served on the defendant. 



                                                                                                                                                               

                           Theruleissilent, however,regarding what should occur when thedismissal  



                                                                                                                                                                            

is instigated neither by the prosecutor nor by the defense, but instead by the court on its  



                                                                           

own motion.  That is what occurred here.  



                                                                                                                                                                      

                           In   this   case,   Sammy   Andreanoff   was   arrested   and   charged   with  



                                                                                         3                                                                                     4  

                                                                                                                                                                

misdemeanor  driving  under  the  influence                                                  and  driving  with  a  suspended  license 



                                                                                                                                                                  

following a traffic stop for reckless driving and a breath test that revealed a blood alcohol  



                                            

level above the legal limit.  



                                                                                                                                                                           

                           At Andreanoff's arraignment, however, these charges were dismissed for  



                                                                                                                                                                             

lack of probable cause by the court on its own motion because the prosecutor failed to  



       1      Alaska R. Crim. P. 45(b)-(c)(1).  



       2      Alaska R. Crim. P. 45(c)(2).  



       3      AS 28.35.030(a)(2).  



       4      AS 28.15.291(a)(1).  



                                                                                    - 2 -                                                                             2495
  


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                                                                                                                                                                                                                                                          5  

provide sworn testimony or an affidavit from the arresting officer.                                                                                                                                                                                            Andreanoff was   



therefore discharged from custody although the court explained to him that the dismissal                                                                                                                                                                                                     



was without prejudice and the State would likely refile the charges with the proper                                                                                                                                                                                                                  



evidentiary support.   



                                                 A week later, the State refiled the charges, this time accompanied by an                                                                                                                                                                                            



affidavit by the arresting officer.                                                                                      But it was more than two months before the State was                                                                                                                                    



able to successfully serve Andreanoff with the refiled charges.                                                                                                                                                                      At Andreanoff's second                                          



arraignment,   the   district   court   found   probable   cause   and   appointed   counsel   for  



Andreanoff.   The court also set the case for the next trial calendar.                                                                                                                                             



                                                  Shortly before Andreanoff's trial was scheduled to begin, Andreanoff's                                                                                                                                                     



attorney asserted that the speedy trial time under Rule 45 had expired (or was close to   



expiring). The attorney argued that the court's                                                                                                                           sua sponte                              dismissal of the charges at his                                                                   



initial arraignment should be treated like a dismissal by the prosecution for purposes of                                                                                                                                                                                                                              



Rule 45 because the prosecutor was aware that the charging document was deficient and                                                                                                                                                                                                                             



                                                                                                                                                                     6  

yet failed to timely correct those deficiencies.                                                                                                                                                                                                                                                                    

                                                                                                                                                                           The defense attorney also argued that the  



             5           See Alaska R. Crim. P. 5(d):  



                         (1) If  the defendant was arrested without a warrant, the judicial officer at the  

                         first appearance shall determine whether the arrest was  made with probable  

                         cause to believe that an offense had been committed and that the defendant had  

                         committed it.  This determination shall be made from  the complaint, from  an  

                         affidavit or affidavits filed with the complaint, or from  an oral statement under  

                         oath of the arresting officer or other person which is recorded by  the judicial  

                         officer.  The determination shall be noted in the file.  

                                     . . . .  

                         (3) If   probable cause is not shown, the judicial officer shall discharge the  

                         defendant.  



             6           See Alaska R. Crim. P. 45(c)(2).  



                                                                                                                                                       - 3 -                                                                                                                                                2495
  


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

State had not been diligent in serving Andreanoff with the refiled charges and therefore                                                    

none of the intervening time should toll under Rule 45.                                            7  



                                                                                                                                                          

                        The prosecutor argued that the court's dismissal should be treated like a  



                                                                                                                                            

dismissal upon motion ofthedefendant becauseAndreanoff benefited fromthedismissal  



                                                                                                                                                

and because, had Andreanoff been represented by counsel at arraignment, his lawyer  



                                                                                                      

would undoubtedly have moved to dismiss on the same ground.  



                                                                                               

                        The district court ultimately found the defense attorney's argument more  



                                                                                                                                                      

persuasive, ruling that the 120 days ran from the date of the original charges and the  



                                                                                                                                                      

State's failure to timely serve Andreanoff with the refiled charges meant that none of this  



                                                                                                                                                       

time was tolled.  The court then dismissed the charges with prejudice, finding that the  



                                                                                                                      8  

                                                                                                                                                              

speedy trial guarantee under Rule 45 had been violated in this case.                                                     The State appealed.  



                                                                                                                                9  

                                                                                                                                                              

                                                                                                                                    We therefore  

                        The proper interpretation of Rule 45 is a question of law. 



                                                                                                                                         

review the district court's ruling de novo and interpret the rule in light of precedent,  



                                  10  

                                                                                                                                                   

                                      For the reasons explained here, we conclude that the district court  

reason, and policy. 



                                                                                                                                                       

erred in treating the court's sua sponte dismissal as a dismissal by the prosecution for  



                                                                                                                                                      

purposes of Rule 45.  We agree with the State that, in most circumstances, a court's sua  



                                                                                                                          

sponte  dismissal  of  criminal  charges  will  benefit  the  defendant  and  will  function  



                                                                                                                                              

similarly to a dismissal upon motion of the defendant for purposes of Rule 45.  Because  



      7     See Alaska R. Crim. P. 45(d)(4) (excluding period of  delay  resulting from  the absence  



or unavailability of  the defendant).  



      8     Alaska R. Crim. P. 45(g).  



      9     State v. Galbraith, 199 P.3d 1216, 1218 (Alaska App. 2009).  



      10    Todd v. State, 917 P.2d 674, 677 (Alaska 1996); cf. Brant v. State, 992 P.2d 590, 592- 

                                                                                                    

93 (Alaska App. 1999) (Mannheimer, J., concurring) ("[w]hen a court construes a statute, the  

                                                                                                                                           

court's task is to ascertain and implement the intent of the legislature.").  



                                                                          - 4 -                                                                    2495
  


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

 that appears to be the case here, we reverse the district court's ruling, and remand this                                     



 case to the district court for further proceedings consistent with this opinion.                                                                                                                   



                    Why we conclude that, in most circumstances, a trial court's dismissal of                                                                                                                                  

                    criminal charges on its own motion will function like a dismissal upon                                                                                              

                    motion of the defendant for purposes of Rule 45                                                                                            



                                       Criminal Rule 45(c)(2) provides, in relevant part:                                                                                             



                                       If a charge is dismissed by the prosecution, the refiling of the                                                                                                  

                                       charge shall not extend the [time for trial].                                                                                If the charge is                         

                                       dismissed upon motion of the defendant, the time for trial                                                                                                     

                                       shall begin running from the date of service of the second                                                                                            

                                                            11  

                                       charge.                    



                                                                                                                                                                                                                                            

 Thus, under this provision, dismissals initiated by the defense are treated differently than  



                                                                                                                                                                                                                                     

 dismissals initiated bythe prosecution for purposes of calculatingthedefendant's speedy  



                                                              

 trial time under Rule 45.  



                                                                                                                                                                                                                                     

                                       Criminal Rule 45(c)(2) was amended to its current form in 1993 by Alaska  



                                                                                                                                                                                                                                              

 Supreme Court Order 1127, and was based on ABA Standards for Criminal Justice 12- 



                                                             12  

                                 

 2.2(b) and 12-2.3(f).                                                                                                                                                                                                           

                                                                     The commentary to those standards explains that the primary  



                                                                                                                                                                                                                                           

justification for restarting the speedy trial clock when a charge is refiled after it has been  



                                                                                                                                                                                                                        

 dismissed on the defendant's motion is that a contrary rule would demand "perfection  



           11       Alaska R. Crim. P. 45(c)(2).  



           12       See   Alaska  Supreme    Court  Order  1127  (effective  July    15,    1993);   see  also  



 Memorandum   from   Cynthia M. Hora, Assistant   Attorney   General, to Christine Johnson,  

 Court Rules Attorney, at 4-5 (Apr. 6, 1992); Minutes of  Criminal Rules Committee, at 1 (Oct.  

 16, 1992); Memorandum   from   Christine Johnson, Court Rules Attorney, to the Supreme  

 Court Justices, at 1 (Apr. 6, 1993); II ABA Standards for Criminal Justice  12-2.2(b) at 12- 

 17, 12-2.3(f) at 12-27 (2d ed. 1986).  



                                                                                                                      - 5 -                                                                                                              2495
  


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

in   charging"   and   place   in   the   hands   of   the   accused   "a   weapon   to   permit   potential  

abuse."13  



                                                                                                                          

                    Different considerations apply, however, when it is the prosecution who  



                                                                                                                        

dismisses  criminal  charges  and  then  later  refiles  those  same  charges.                                     In  those  



                                                                                                                        

circumstances, the concern is that the prosecution might be using the dismissal to evade  



                                                                                                                            

the requirements of the speedy trial rule or to otherwise prejudice the defendant.  As the  



                                                                                                                              

ABA commentary explains:  "If dismissal by the prosecutor were to operate so as to  



                                                                                                                        

begin the time running anew upon a subsequent charge of the same offense, this would  



                                                                                                    14  

                                                                                    

open a way for the complete evasion of the speedy trial guarantee." 



                                                                                                                            

                    The State argues that a dismissal by the court on its own motion does not  



                                                                                                                           

trigger these same concerns.  The State points out that, in most instances, the court will  



                                                                                                                           

be acting on its own motion because the defendant is unrepresented (as Andreanoff was  



                                                                                                                                  

at his arraignment). Likewise, in most instances, the dismissal will benefit the defendant.  



                                                                                                                            

                    We agree with the State that, in most cases, the defendant will be the  



                                                                                                                   

beneficiary of a court's sua sponte dismissal of criminal charges, and there is generally  



                                                                                                                              

little risk that such dismissals will be aimed at evading the speedy trial requirements or  



                                            15  

                                  

otherwise gaming the system. 



     13   II ABA Standards for Criminal Justice 12-2.2(b) cmt. at 12-24 - 12-25 (2d ed. 1986)  



(quoting People v. Hamby, 190 N.E.2d 289, 291 (Ill. 1963)).  



     14   II ABA Standards for Criminal Justice 12-2.3(f) cmt. at 12-33 (2d ed. 1986) (citation  



and quotation marks omitted).  



     15   Accord   U.S. v. Feldman, 788 F.2d 544, 549 (9th Cir. 1986) (holding that where the  



defendant benefited by  a trial court's sua sponte dismissal, that dismissal should be treated  

as though the court had acted on a defendant's own motion for purposes of  the federal speedy  

trial act).  See generally John H. Derrick, Annotation, Application of Speedy Trial Statute to  

Dismissal or Other Termination of  Prior Indictment or Information and Bringing of New  

Indictment or Information , 39 A.L.R. 4th 899 (originally   published in 1985; updated to  

                                                                                                             (continued...)  



                                                             - 6 -                                                       2495
  


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

                                                                                     We recognize, however, that this may not be true in                                                                                                                                                                                                                                                                                                               all cases.                                                     In his   



briefing on appeal, Andreanoff argues that there may be situations where a defendant                                                                                                                                                                                                                                                                                                                                                                                                       



might choose to forgo an otherwise meritorious motion to dismiss in favor of his speedy                                                                                                                                                                                                                                                                                                                                                                                                                                



trial rights.                                                            For example, a defendant who knows that the dismissal will be without                                                                                                                                                                                                                                                                                                                                                                  



prejudice, and that the State will almost certainly refile the charges, might choose not to                                                                                                                                                                                                                                                                                                                                                                                                                                                            



 file a motion to dismiss because he is concerned about any additional delay in resolving                                                                                                                                                                                                                                                                                                                                                                                                               



his case and the prejudice that could be caused by that delay.                                                                                                                                                                                                                                                                                            



                                                                                     Andreanoff   points   out   that   one   of   the   material   distinctions  between   a  



 dismissal by the prosecution and a dismissal upon motion of the defendant is that the                                                                                                                                                                                                                                                                                                                                                                                                                                                         



 defendant has control over whether or not to file a motion to dismiss. He argues that this                                                                                                                                                                                                                                                                                                                                                                                                                                                 



 is   the   distinction   that   should   govern   our   analysis  here,   and   therefore   a   sua   sponte  



 dismissal by the court (over which the defendant has no control) should be treated like                                                                                                                                                                                                                                                                                                                                                                                                                                                   



 a dismissal by the prosecution for purposes of the defendant's Rule 45 speedy trial rights.                                                                                                                                                                                                                                                                                                                                                                                                                                



                                                                                     We conclude that we need not reach the question of how Rule 45 should                                                                                                                                                                                                                                                                                                                                          



be calculated in cases where the defendant objected to the court's dismissal of the                                                                                                                                                                                                                                                                                                                                                                                                                                                          



 criminal charges or cases where it was reasonably foreseeable that the dismissal would                                                                                                                                                                                                                                                                                                                                                                                                                                    



prejudice the defendant because those are not the circumstances here.                                                                                                                                                                                                                                                                                                                                                   



                                                                                     Here, Andreanoff did not object to the court's dismissal of the criminal                                                                                                                                                                                                                                                                                                                                                



 charges against him and he clearly benefited from it:                                                                                                                                                                                                                                                                                     he was released from custody and                                                                                                                                                                 



was not subject to bail or other conditions of pretrial release during the time between the                                                                                                                                                                                                                                                                                                                                                                                                                                                     



 dismissal and service of the refiled charges.                                                                                                                                                                                                                                        We see no reason, on the record currently                                                                                                                                                                          



before us, to believe that the outcome of the arraignment would have been any different                                                                                                                                                                                                                                                                                                                                                                                                                     



 if Andreanoff had been represented by counsel at the time.                                                                                                                                                                                                                                                                                                                              Indeed, we agree with the                                                                                                                             



 State that had Andreanoff been represented, it is likely that his counsel would have                                                                                                                                                                                                                                                                                                                                                                                                                                             



                      15                   (...continued)  



2015).  



                                                                                                                                                                                                                                                                    - 7 -                                                                                                                                                                                                                                                          2495
  


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

moved to dismiss the charges for lack of probable cause on the same ground that the  

                                                                                                                             



court dismissed them, or, at the very least, acquiesced in the court's decision to do so.  

                                                                                                                             



                    In addition, although Andreanoff faults the prosecutor for failing to correct  

                                                                                                                        



obvious deficiencies in the charging document and for failing to ensure that the refiled  

                                                                                                                        



charges were timely served, there is no indication that the State's mistakes in this case  

                                                                                                                           



were caused by anything other than simple negligence.  Nor does Andreanoff appear to  

                                                                                                                               



claim that he was actually prejudiced by either the dismissal or the delay in service.  

                                                                                                                  



                    Given this record, we conclude that the district court erred in running Rule  

                                                                                                                           



45 from the date that the original charges were served on Andreanoff.   Instead, we  

                                                                                                                             



conclude that, because the court's dismissal of the charges at arraignment functioned  

                                                                                                                  



similarly to a dismissal upon motion of the defendant, the Rule 45 time should have  

                                                                                                                           



begun anew on the date Andreanoff was served with the refiled charges.  

                                                                                                 



          Conclusion  



                    We REVERSE the district court's judgment and REMAND this case to the  

                                                                                                                              



district court for further proceedings consistent with this opinion.   We do not retain  

                                                                                                                         



jurisdiction.  



                                                             - 8 -                                                        2495
  

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