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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

ALASKA PUBLIC DEFENDER AGENCY, 

Applicant, 

v. 

SUPERIOR COURT, 

Respondent. 

Court of Appeals No. A-13508 

Trial Court No. 3AN-18-12496 CR 

O P I N I O N 

No. 2746 — May 19, 2023 

Original Application for Relief from the Superior Court, Third 

Judicial District, Anchorage, Andrew Peterson, Judge. 

Appearances: Douglas O. Moody, DeputyPublic Defender, and 

Samantha Cherot, Public Defender, Anchorage, for the 

Applicant. Kenneth M. Rosenstein, Assistant AttorneyGeneral, 

Office of Criminal Appeals, Anchorage, and Treg R. Taylor, 

Attorney General, Juneau, for the Respondent. Siena Caruso, 

Dorsey & Whitney LLP, Anchorage, as amicus curiae. 

Before: Allard, Chief Judge, and Wollenberg and Harbison, 

Judges. 

Judge WOLLENBERG, writing for the Court. 

Judge HARBISON, concurring. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Alaska Criminal Rule 45 entitles criminal defendants to a trial within 120 

days from the date of service of the charging document.1 But the rule also provides that 

the 120-day clock will pause during certain periods, including — as set out in 

Rule 45(d)(2) — “[t]he period of delay resulting from an adjournment or continuance 

granted at the timely request or with the consent of the defendant and the defendant’s 

counsel.”2 

In this original application brought by the Alaska Public Defender Agency, 

we are asked to decide two questions. 

First, we must interpret Rule 45(d)(2). In particular, we must determine 

whether a court may toll thespeedy trial clock under Rule 45(d)(2) when defense counsel 

requests or consents to a continuance, but the defendant personally objects. As we have 

noted in our prior decisions, the plain language of subsection (d)(2) — which refers to 

the consent “of the defendant and the defendant’s counsel” — suggests that a court may 

not toll the speedy trial clock under these circumstances. But the Public Defender 

Agency argues that the use of the word “and” was a scrivener’s error, and that the rule 

only requires the consent of “the defendant or the defendant’s counsel.” 

Having reviewed the briefs and the history of the rule, we reject the 

Agency’s proposed interpretation and adhere to the plain language of the rule. There is 

nothing in the history of the rule to suggest that the text reflects an obvious mistake or 

drafting error, or that “and” was intended to mean “or.” Indeed, the language of the 

provision has remained unchanged despite attempts to change or clarify it. Accordingly, 

we conclude that a trial court may not toll the speedy trial clock under Rule 45(d)(2) over 

the defendant’s objection. 

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

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

– 2 – 2746
 
However, consistent with our prior case law, we continue to hold that when 

a defendant’s counsel requests a continuance, no express personal waiver by the 

defendant is required. Rather, in the absence of any indication otherwise, courts may 

presume that defense counsel has spoken with their client and that their client consents 

to the continuance. If it is nonetheless clear that the defendant objects to their attorney’s 

requested continuance, the court may not toll additional time under Rule 45(d)(2) 

(although other tolling provisions may apply). 

Second, we must address a question that flows from our interpretation of 

Rule 45(d)(2). When a defense attorney requests a continuance, over the defendant’s 

personal objection, in order to fully prepare for trial, and the trial court sets trial to begin 

immediately, can the trial court require a defendant to waive any future ineffective 

assistanceof counsel claims based on their attorney’sunpreparedness? We conclude that 

such a waiver is improper and unnecessary. 

Procedural background 

The issues in this original application initially arose in State v. Ward, 

3AN-18-12496 CR. In December 2018, David Craig Ward was charged with one count 

of second-degree sexual assault and two counts of second-degree assault,3 and the court 

appointed the Alaska Public Defender Agency (“the Agency”) to represent him. In 

February 2019, a grand jury indicted Ward on these charges, and in July 2019, following 

failed negotiations with the State, Ward determined that he wanted to go to trial as soon 

as possible. At a status hearing in July, the superior court set Ward’s trial to begin on 

September 16, 2019. 

3 AS 11.41.420(a)(1) and AS 11.41.210(a)(1), respectively. Ward was also initially 

charged with one count of fourth-degree assault under AS 11.41.230(a)(1), but this charge 

was later dismissed by the prosecution. 

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On September 10, Ward’s attorney filed a motion to continue the trial date 

because the attorney was unprepared to proceed to trial, due to both personal and workrelated reasons. Defense counsel informed the court that Ward objected to the 

continuance, but argued that Criminal Rule 45 should be interpreted to permit the tolling 

of time under the circumstances. 

The attorney noted that, since the July hearing, the State had provided 

additional discovery. The attorney explained that he had been unable to review the most 

recent discovery, and that his ability to work on Ward’s case had been materially limited 

during the month of August for a number of reasons: (1) he was ill and missed 

significant time from work; (2) he was in another trial during a week in August; and 

(3) he had to travel out of state with a family member for medical reasons between 

August 23 and September 6. Ward’s attorney asked to continue the trial date for six 

weeks, until November, noting that he had a homicide trial already scheduled to take 

place in October. Such a continuance would have resulted in Ward’s case being set for 

trial past the date on which the Rule 45 trial clock was then set to expire. 

At a hearing on defense counsel’s motion, Ward himself informed the court 

that he understood the attorney’s situation. But he objected to the continuance and 

wanted to proceed to trial, without waiving any more time under Rule 45, even if it 

meant that his attorney would not be fully prepared. 

Thesuperior courtaccepted defensecounsel’srepresentationthatheneeded 

more time to prepare for trial. But the court nonetheless denied the attorney’s motion, 

concluding that both the defendant and the defendant’s attorney are required to consent 

to any continuance of the trial date requested under Rule 45(d)(2). The court therefore 

refused to toll the speedy trial clock under Rule 45 in light of Ward’s personal objection. 

However, the court also determined that, by proceeding to trial despite his attorney’s 

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clear advisement that he was unprepared, Ward was waiving his right to raise future 

post-conviction relief claims based on his attorney’s ineffective assistance at trial. 

Ward’s attorney filed a petition for review with this Court challenging the 

superior court’s rulings, and we stayed the trial court proceedings pending resolution of 

the petition. Because the interests of Ward and the Public Defender Agency diverged, 

and the real party in interest was the Agency itself, we converted the petition into an 

original application for relief under Alaska Appellate Rule 404.4 We granted the 

Agency’s request for review, directed the Clerk of the Appellate Courts to appoint an 

attorney to represent Ward on the issues raised in the original application, and ordered 

full briefing.5 We also stated that, notwithstanding our prior stay of the proceedings, the 

parties were not precluded from negotiating Ward’s case or proceeding to trial if the 

attorneys were prepared to do so.6 

In December 2019, before the briefing was filed, Ward went to trial with 

new counsel. He was convicted of one count of second-degree sexual assault and one 

count of second-degree assault. Although the fact that Ward proceeded to trial with 

counsel who was prepared to do so rendered the issues raised in this case moot, we 

4 Court of Appeals File No. A-13508 (Order dated Nov. 12, 2019), at 3; see State, 

Dep’t of Pub. Safety v. Superior Court, 411 P.3d 648, 649 (Alaska App. 2018) (stating that 

a third party who is adversely affected by a court order in a criminal case may seek 

discretionary appellate review of the order by filing an original application for relief under 

Alaska Appellate Rule 404). 

5 Court of Appeals File No. A-13508 (Order dated Nov. 12, 2019), at 3-4. 

6 Id. at 5; see also Court of Appeals File No. A-13508 (Order dated Nov. 21, 2019), 

at 3 (explaining that under the terms of our limited stay of the proceedings, Ward could not 

prospectively waive his right to effective assistance of counsel and proceed to trial with a 

defense attorney who had asserted that he was not adequately prepared for trial — but that 

the stay should not be construed as preventing the parties from moving forward with trial 

once the defense attorney was prepared to do so). 

– 5 – 2746
 
concluded that the case raised important questions of law that justified application of the 

public interest exception to the mootness doctrine.7  

At this point, we removed Ward from the application, since he had already 

gone to trial and thus obtained the remedy he was seeking.8 

 Instead, we appointed an 

amicus curiae to file a brief supporting the following position — that a criminal 

defendant who objects to a continuance and wishes to proceed immediately to trial may 

do so without prospectively waiving their right to the effective assistance of counsel.9 

We thank the amicus, who agreed to represent this position pro bono, for participating 

in this matter and providing helpful briefing on this point. 

We now turn to the arguments raised in this original application. 

A court may not toll the speedy trial clock under Criminal Rule 45(d)(2) 

over the defendant’s objection 

As we have explained, under Alaska Criminal Rule 45 (also known as the 

“speedy trial” rule), a defendant must generally be brought to trial within 120 days from 

the date ofservice ofthe charging document.10 However,Rule 45(d) enumeratesspecific 

7 Court of Appeals File No. A-13508 (Order dated Jan. 13, 2020), at 1-2; Court of 

Appeals File No. A-13508 (Order dated Feb. 19, 2020), at 1; see also State v. Roberts, 999 

P.2d 151, 153 (Alaska App. 2000) (stating that, under the public interest exception to the 

mootness doctrine, courts may choose to resolve an otherwise moot issue when “the issue is 

one of public interest which is capable of repetition and may repeatedly circumvent review”). 

8 Court of Appeals File No. A-13508 (Order dated Feb. 19, 2020), at 1. 

9 Court of Appeals File No. A-13508 (Order dated Apr. 17, 2020) (appointing Siena 

Caruso, of Dorsey & Whitney, LLP, to represent this position of criminal defendants). 

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

– 6 – 2746
 
 

 

 

 

 

 

 

 

 

 

 

 

 

periods of time that are excluded from the 120-day period.11 In particular, Rule 45(d)(2), 

the subsection at issue in this appeal, excludes from the 120-day time limit “[t]he period 

of delay resulting from an adjournment or continuance granted at the timely request or 

with the consent of the defendant and the defendant’s counsel.”12 If the defendant is not 

brought to trial within 120 days — as extended by excluded periods of time — the 

remedy is dismissal of the defendant’s case with prejudice.13 

Our past case law has not been entirely clear as to whether a court may toll 

time under Rule 45(d)(2) over the defendant’s objection. In some instances, we have 

claimed to leave this question open, declining to definitively resolve the issue, and 

instead simply assuming, for purposes of a given decision, that the tolling of the speedy 

trial clock under (d)(2) requires the defendant’s consent.14 

At the same time, we have strongly indicated that subsection (d)(2) 

prohibits a court from tolling time over the defendant’s objection. For instance, we have 

11 Alaska R. Crim. P. 45(d)(1)-(7). 

12 Rule 45(d)(2) further provides that “[t]he court shall grant such a continuance only 

if it is satisfied that the postponement is in the interest of justice, taking into account the 

public interest in the prompt disposition of criminal offenses, and after consideration of the 

interests of the crime victim, if known[.]” 

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

14 See, e.g., Baker v. State, 110 P.3d 996, 999 (Alaska App. 2005) (assuming, but 

declining to decide, whether the defendant’s consent to the continuance was required to 

exclude time under Rule 45(d)(2)); State v. Jeske, 823 P.2d 6, 8 n.1 (Alaska App. 1991) (“We 

assume, for purposes of deciding this case, that Rule 45(d)(2) requires the defendant’s 

consent to any continuance requested by defense counsel.”); James v. State, 2015 WL 

9257032, at *6 (Alaska App. Dec. 16, 2015) (unpublished) (“This Court has not decided 

whether the use of ‘and’ rather than ‘or’ between ‘defendant’ and ‘defendant’s counsel’ 

means that a defendant’s personal consent to a continuance is required to toll the speedy trial 

clock under this provision[.]”); Williams v. State, 2006 WL 2458569, at *3 (Alaska App. 

Aug. 23, 2006) (unpublished) (same). 

– 7 – 2746
 
 

 

 

 

 

 

 

 

 

 

noted that the plain language refers to “the defendant and the defendant’s counsel.”15 

And notably, in State v. Jeske, we held that, if the trial court has tolled time under Rule 

45(d)(2) based on defense counsel’s request for a continuance and the defendant later 

personally objects to the trial court’s action, the Rule 45 clock resumes running (while 

the time already elapsed remains excluded from the Rule 45 computation).16 The clear 

underlying premise of this holding is that the defendant has personal veto authority over 

the tolling of the speedy trial clock under subsection (d)(2). 

Thus, although we have not expressly held that time may be excluded 

under (d)(2) only if the defendant consents to the continuance, our past case law strongly 

supports this conclusion. 

15 See Perez v. State, 521 P.3d 592, 601 (Alaska App. 2022) (emphasizing that tolling 

time under Rule 45 requires the defendant and defense counsel’s consent to a continuance); 

Jeske, 823 P.2d at 8 (recognizing that “the wording of Rule 45(d)(2) apparently requires a 

criminal defendant’s concurrence in any delay or continuance requested by the defense 

attorney”); see also Henson v. State, 576 P.2d 1352, 1356 n.9 (Alaska 1978) (stating that 

defense counsel’s continuance request that tolled the Rule 45 clock was assumed to have 

been made on behalf of the defendant and with his consent); Yearty v. State, 805 P.2d 987, 

991 (Alaska App. 1991) (“Absent an affirmative showing to the contrary, we must assume 

that [defendant’s] counsel requested the continuance . . . with [defendant’s] knowledge and 

consent.”); Machado v. State, 797 P.2d 677, 685 (Alaska App. 1990) (stating that Rule 45 

“gives the defendant the right to object to a continuance and that the rule assumes that 

counsel will make the decision to move for a continuance after consultation with the 

defendant”). 

16 Jeske, 823 P.2d at 10 (“When a defendant asserts that he or she never consented 

to a continuance obtained or stipulated to by defense counsel, Rule 45 remains tolled until 

the judge makes an affirmative finding that the defendant did not consent to the previously 

ordered continuance.”); see also Rhames v. State, 907 P.2d 21, 25 (Alaska App. 1995) 

(holding that the entire period of the requested continuance was excluded from the Rule 45 

calculation because the defendant’s objection was never reported to the court). 

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Given the assumption that consent is required, our cases have primarily 

focused on the separate question of whether the defendant’s consent can be inferred from 

the surrounding circumstances or whether an express waiver is required. Both the 

Alaska Supreme Court and this Court have repeatedly held that consent may be implicit 

— i.e., absent an affirmative objection by the defendant, a trial court can rely on a 

defense attorney’s request for a continuance and need not seek a separate, personal 

consent from the defendant.17 For example, in Jeske, we held that a defendant’s consent 

to a continuance may be implied from their silence, or even in their absence: 

[A] trial court can rely on a defense attorney’s request for a 

continuance and need not seek a separate, personal consent 

fromthe defendant unless the defendant affirmatively objects 

to the defense attorney’s action. This is true even when the 

defendant is not present in court to witness the defense 

attorney’s request for a continuance . . . or when defense 

acquiescence in a continuance is manifested by the attorney’s 

filing a statement of non-opposition[.][18] 

However, as we noted above, once a defendant brings an objection to the trial court’s 

attention, the Rule 45 clock resumes running.19 

17 Henson, 576 P.2d at 1356 n.9; Snyder v. State, 524 P.2d 661, 664 (Alaska 1974); 

Baker, 110 P.3d at 999-1000; Jeske, 823 P.2d at 8; Machado, 797 P.2d at 684-85; Coffman 

v. State, 2002 WL 341988, at *14 (Alaska App. Mar. 6, 2002) (unpublished); see also 

Wardlow v. State, 2 P.3d 1238, 1242-43 (Alaska App. 2000) (upholding court’s reliance on 

attorney’s agreement to a trial date outside of the Rule 45 period to find defendant had 

waived right to challenge trial date, even though he was not present). 

18 Jeske, 823 P.2d at 8 (citing Henson, 576 P.2d at 1356 n.9; Yearty, 805 P.2d at 991; 

Machado, 797 P.2d at 684-85; Snyder, 524 P.2d at 663-64; O’Dell v. Anchorage, 573 P.2d 

1381, 1384 (Alaska 1978)). 

19 See id. at 10; see also Rhames, 907 P.2d at 25; Baker, 110 P.3d at 999-1000. 

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In this case, we are faced with a situation in which the defendant 

affirmatively objected to a continuance at the time it was requested by his attorney — 

and the superior court,relying on thedefendant’sobjection, denied theattorney’s request 

for a continuance of trial and declined to toll the Rule 45 speedy trial clock.20 

Accordingly, we must definitively resolve whether Rule 45(d)(2) does in fact require a 

defendant’s consent to a continuance in order to toll time under this provision. 

In interpreting a statute (or court rule), we examine de novo “the meaning 

of the [rule’s] language, its legislative history, and its purpose in light of reason, 

practicality, and common sense.”21 Under Alaska’s “sliding scale” approach to statutory 

interpretation, “the plainer the statutory language is, the more convincing the evidence 

of a contrary legislative intent must be.”22 

Here, the plain language of Rule 45(d)(2) is clear: the rule explicitly 

requires the consent of both a defendant and their counsel. While there may be rare 

instances in which the term “and” must be interpreted as the disjunctive “or” in order to 

preserve an accurate or rational reading of the statute, as a general matter, the words 

“and” and “or” are not considered interchangeable.23 That is, the strict meaning of these 

terms should be followed when doing so does not render the statute confusing or absurd 

20 The court stated that, as of the date of its order — four days before the scheduled 

trial — 106 days had run for purposes of Rule 45. 

21 Hayes v. State, 474 P.3d 1179, 1183 (Alaska App. 2020) (citations and quotations 

omitted). 

22 Id. (citations omitted). 

23 See 1A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory 

Construction, § 21:14, at 183-84 (7th ed. 2009) (“While there may be circumstances which 

call for an interpretation of the words ‘and’ and ‘or,’ ordinarily these words are not 

interchangeable. . . . The literal meaning of these terms should be followed unless it renders 

the statute inoperable or the meaning becomes questionable.”). 

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and there is no clear legislative intent that the words mean something other than what 

they plainly do.24 Here, the use of the conjunctive term “and” in Rule 45(d)(2) is not, on 

its face, ambiguous or illogical. 

The Agency asserts that the use of the term “and” was a scrivener’s error 

— i.e., a drafting mistake.25 In particular, the Agency argues that subsection (d)(2) was 

meant to require the consent of “the defendant or the defendant’s counsel” — such that 

a defendant’s consent is not required to toll the speedy trial clock under this provision. 

The Agency contends that a defense attorney should have the authority to unilaterally 

request or consent to a continuance that extends the time for trial under Rule 45. 

In the past, the State has taken the same position as the Agency.26 But the 

State now urges this Court to interpret Rule 45(d)(2) as requiring a defendant’s consent 

to a continuance requested by their attorney in order to toll time. The State asserts that 

24 Id. at 189; see also Ray v. State, 513 P.3d 1026, 1034 (Alaska 2022) (“[W]here a 

statute’s meaning appears plain and unambiguous . . . the party asserting a different meaning 

bears a correspondinglyheavyburden of demonstrating contrarylegislative intent.” (citations 

and quotations omitted)); Estate of Kim ex rel. Alexander v. Coxe, 295 P.3d 380, 387 (Alaska 

2013) (indicating that there must be evidence of strong legislative intent to depart from the 

plain meaning of a statute, and “[e]ven if legislative history is ‘somewhat contrary’ to the 

plain meaning of a statute, plain meaning still controls” (citations omitted)). 

25 See Scrivener’s error, Black’s Law Dictionary, at 683 (11th ed. 2019) (defining 

“scrivener’s error” as “[a]n error resulting from a minor mistake or inadvertence”). 

26 See, e.g., State v. Jeske, 823 P.2d 6, 8 n.1 (Alaska App. 1991) (“The State argues 

that the Alaska Supreme Court, when promulgating Rule 45(d)(2), inadvertently changed the 

‘or’ of the ABA standard to an ‘and’.”); McCracken v. State, 1999 WL 3363, at *1 (Alaska 

App. Jan. 6, 1999) (unpublished) (“The State asks us to declare that, even though 

Rule 45(d)(2) speaks of continuances granted at the request or with the consent of the 

defendant and defense counsel, the rule should be interpreted as if it said ‘the defendant or 

the defendant’s counsel’.”). 

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there is nothing in the legislative or rule committee history to override the rule’s plain 

language. 

Based on our review of the rule history, we agree with the State. 

The current version of Alaska Criminal Rule 45, drafted by the Criminal 

Rules Committee and adopted by the Alaska Supreme Court in 1971 in Supreme Court 

Order No. 131, is derived from the American Bar Association (ABA)’s Standards 

Relating to Speedy Trial.27 The 1968 ABA Standard did not require a defendant’s 

consent to their attorney’s request for a continuance. Rather, it excluded fromthe speedy 

trial calculation “[t]he period of delay resulting froma continuance granted at the request 

or with the consent of the defendant or his counsel.”28 The first proposed version of 

Alaska Criminal Rule 45(d)(2) largely mirrored the ABA Standard and similarly 

excluded the “period of delay resulting from a continuance granted at the timely request 

or with the consent of the defendant or his counsel.”29 

However,as thesupremecourthas expressly noted, “thedrafters of Rule 45 

altered the ABA proposed speedy trial rules somewhat.”30 In the final version of 

Rule 45(d)(2) actually adopted by the supreme court, the word “or” was changed to 

“and.” In fact, the final version of Rule 45(d)(2), as it was adopted in 1971, differed 

from the ABA Standard in a few ways by excluding: “The period of delay resulting from 

27 Peterson v. State, 562 P.2d 1350, 1357 (Alaska 1977) (citing Peterkin v. State, 543 

P.2d 418 (Alaska 1975)); Jeske, 823 P.2d at 8 n.1. 

28 ABA Standards Relating to Speedy Trial, § 2.3 at 25 (Approved Draft 1968) 

(emphasis added). 

29 See first draft of Rule 45, Rule File for Alaska Supreme Court Order No. 131 (Feb. 

11, 1971) (emphasis added) (on file with the Alaska Court System Rules Attorney). 

30 Peterson, 562 P.2d at 1357 (discussing Rule 45(c)(1) and when the speedy trial 

clock begins to run). 

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an adjournment or continuance granted at the timely request or with the consent of the 

defendant and his counsel.”31 

The Agency asserts that the change in language from the initially proposed 

rule to the final version of the rule — namely, replacing the word “or” with “and” — 

must have been due to a drafting error. But the Agency’s assertion is based on no more 

than speculation. The rule file does not contain any minutes or other explanation of the 

changes that were ultimately adopted; indeed, the Agency acknowledges that the rule 

history does not demonstrate a clear intent on the part of the drafters. And the changes 

themselves do not create an absurd or confusing result. Thus, in accordance with the 

general rules of statutory interpretation in Alaska, the plain meaning of “and” should be 

followed. 

To support its position, the Agency points to two different drafts in the rule 

history file for Supreme Court Order No. 131. The first draft is the one that substantially 

reflected the ABA Standard, tolling time when either the defendant or the defendant’s 

attorney requested or consented to a continuance. The second draft made several 

changes to the proposed rule, including changing “or” to “and.” The Agency notes that 

this second draft contained handwritten corrections, including a handwritten notation 

reinserting the word “his” in the following phrase: “with the consent of the defendant 

and his counsel.” (The word “his” was included in the original draft, but was apparently 

inadvertently excluded from the second draft.) Based on the fact that there are 

handwritten corrections on the second draft, the Agency argues that “[i]t is quite possible 

that the subcommittee just missed the fact that the second draft switched ‘or’ to ‘and.’” 

31 Alaska Supreme Court Order No. 131 (dated June 10, 1971; eff. Sept. 1, 1971) 

(emphasis added). In 1994, the phrase “his counsel” was changed to “the defendant’s 

counsel.” Alaska Supreme Court Order No. 1153 (dated Mar. 4, 1994; eff. July 15, 1994). 

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But the author of the handwritten changes on this subsequent draft is 

unknown, and there is nothing in the file to suggest that the grammatical change from 

“or” to “and” was unintentional. Indeed, the handwritten insertion of “his” immediately 

following the word “and” in subsection (d)(2) suggests that, far from being inadvertent, 

the change was known to the drafters. And as noted above, Rule 45(d)(2) contains more 

alterations from the ABA Standard than just this one word difference.32 

We have found nothing else in the history of Rule 45(d)(2) to suggest that 

these modifications were inadvertent scrivener’s errors, as opposed to an intentional 

decision by the drafters to modify Rule 45 from the ABA Standard. Without more, the 

mere possibility of a drafting error is not enough for this Court to rewrite the plain 

language of the rule.33 

Indeed, notwithstanding the suggestion in previous Alaska cases that the 

defendant has veto authority over the tolling of the speedy trial clock under 

Rule 45(d)(2), there has been little effort to change the language of the rule — and any 

attempt to do so has been unsuccessful. In 1987, the question of whether Rule 45(d)(2) 

requires a defendant’s consent was brought to the attention of the Criminal Rules 

Committee, but the Committee apparently took no action. Specifically, Criminal Rules 

Committee Chairperson Jeffrey Feldman wrote a memo to the committee, detailing a 

32 In addition to changing “or” to “and” between the words “defendant” and “his 

counsel,” the drafters of Rule 45(d)(2) added the term “adjournment” in addition to 

“continuance” and inserted the word “timely.” 

33 See Ryan D. Doerfler, The Scrivener’s Error, 110 Nw. U. L. Rev. 811, 816-17 

(2016) (explaining that a scrivener’s error refers to a “particular sort of legislative mistake” 

where “the words of a legislative text diverge from what Congress meant to say” as opposed 

to a case in which “Congress simply should have said something else”). 

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number of proposals regarding Rule 45(d).34 In one of the proposals, Mr. Feldman 

relayed a request from Superior Court Judge Mark Rowland’s law clerk, who stated that 

clarification was needed as to whether Rule 45(d)(2) required the consent of both the 

defendant and defense counsel. However, as the parties acknowledge, there is no further 

discussion of this proposal in the rule history files, and we have not identified any related 

proposal to amend the rule. 

Additionally, in 2019, the Governor proposed a legislative amendment to 

change the language of Rule 45(d)(2) from “and” to “or.”35 The proposed rule change 

was included in numerous drafts of an omnibus crime bill as the bill (and related bills) 

traveled throughcommitteehearings in both the House and Senate.36 But the amendment 

34 See Memorandum from Jeffrey Feldman, Crim. Rules Comm. Chairperson, to the 

Crim. Rules Comm., Rule File for Alaska Supreme Court Order (SCO) No. 932 (Jan. 22, 

1987). The only change enacted in SCO 932 was the deletion of a subsection that tolled the 

speedy trial clock when a party peremptorily challenged a judge. Supreme Court Order 

No. 932 (dated Aug. 31, 1988; eff. Jan. 15, 1989). 

35 See Governor’s Transmittal Letter for House Bill 50, 2019 House Journal 170-72 

(Feb. 20, 2019) (explaining that “the bill allows a defendant’s counsel to agree to 

continuances of trial. This is helpful in the event that the defendant’s counsel needs more 

time to adequately prepare for trial. . . . Continuances are a tactical matter which the 

defendant’s counsel should control.”). 

36 See S.C.S. C.S.H.B. 49 (Ver. F), 31st Leg., 1st Sess., at § 144 (as introduced by 

the Senate Fin. Comm., May 13, 2019); C.S.S.B. 33 (Ver. C), 31st Leg., 1st Sess., at § 26 (as 

introduced by the Senate Judiciary Comm., Apr. 24, 2019); House Bill 50 (Ver. A), 31st 

Leg., 1st Sess., at § 24 (as introduced by the House Rules Comm., Feb. 20, 2019); see also 

Audio of Senate State Affairs Comm., Senate Bill 33, testimony of John Skidmore, Crim. 

Div. Dir., Dep’t of Law, at 4:18:23 – 4:20:17 p.m. (Feb. 19, 2019) (“Right now, the way the 

rules are written is that . . . [a] continuance [can only] occur with the defendant’s consent. 

The problem with that is that there have been cases in which . . . the defense attorney said 

‘we need more time to prepare,’ the defendants refused to agree to more time for their 

attorneys to prepare, the case goes to trial, the defendants are convicted, and then after the 

(continued...) 

– 15 – 2746
 
 

 

 

 

 

 

 

 

 

 

 

was removed in a conference committee between the House and the Senate and was not 

included in the final version of the bill (House Bill 49) that became law.37 

The Agency argues that these efforts to change Rule 45(d)(2) demonstrate 

that the rule was erroneously written to require the consent of both a defendant and their 

counsel. But if the rule were indeed drafted improperly, then it is hard to explain why 

these proposals to amend the rule did not succeed. Rather than bolster the argument that 

Rule 45(d)(2) was originally intended to provide for consent of a defendant or their 

counsel, these unsuccessful efforts to change the rule suggest that “and” was in fact 

intended to mean “and.”38 

The Agency asserts that reading “and” as “or” is consistent with the other 

tolling provisions of Rule 45. For example, the Agency notes that, under 

Rule 45(d)(3)(B), the State is permitted to request a continuance (and thus, toll time if 

36 (...continued) 

trial, the defendants file [for] post-conviction relief — that is, asking to have the conviction 

set aside because they say there was some flaw in the way in which the case was handled. 

. . . This is a way to try and help streamline the process. . . . This puts it squarely on the 

[defense] attorney’s shoulders to ask for [a] continuance. And the hope is that it creates 

efficiencies within the system.”). 

37 FSSLA 2019, ch. 4 (enacting House Bill 49). Initially, the Governor’s proposed 

change from “and” to “or” appeared in the Senate Finance Committee’s substitute version 

of House Bill 49. See S.C.S. C.S.H.B. 49 (Ver. F), 31st Leg., 1st Sess., at § 144 (as 

introduced May 13, 2019). But in the next version of the bill, issued by the conference 

committee a week later, the section amending Rule 45(d)(2) was deleted. See C.S.H.B. 49 

(Ver. G), 31st Leg., 1st Spec. Sess. (May 20, 2019). 

38 Legislative developments that occur following the promulgation of a rule are not 

binding on this Court’s interpretation of the provision, but are “a factor that the courts should 

consider when determining the meaning and effect of the pre-existing [rule].” See Mosquito 

v. State, 504 P.3d 918, 922 (Alaska App. 2022) (quoting Collins v. State, 494 P.3d 60, 67 

(Alaska App. 2021)). 

– 16 – 2746
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

the continuance is granted) in order to prepare for trial in exceptionally complex cases.39 

The Agency contends that a rule that gives a prosecutor the ability to unilaterally seek 

such atime-tollingcontinuance, but not adefenseattorney, creates an imbalancebetween 

the two sides of the adversarial process. 

The Agency also notes that a defense attorney has the authority to file 

substantive motions in a criminal case, which may toll the time for trial under a different 

subsection of the rule — Rule 45(d)(1).40 According to the Agency, if a defendant’s 

objection precludes the tolling of the speedy trial clock under subsection (d)(2) despite 

defense counsel’s good-faith request for a continuance, then defense counsel will be 

incentivized to file motions that are unlikely to succeed in order to toll time under 

subsection (d)(1). 

But these perceived inconsistencies in the rule’s provisions are not a basis 

for us to overwrite the plain language of subsection (d)(2). (And we note, of course, that 

attorneys are not entitled to file motions that are frivolous.) 

The Agency also raises a number of policy concerns with interpreting 

subsection (d)(2) to give defendants veto authority over tolling time under that 

subsection. First, the Agency argues that our interpretation contravenes the traditional 

allocation of decision-making authority over continuances to defense counsel.41 But 

nothing in our decision precludes a defense attorney from requesting a continuance. It 

39 Alaska R. Crim. P. 45(d)(3)(B). 

40 Alaska R. Crim. P. 45(d)(1); see also Alaska R. Prof. Conduct 1.2(a) (providing 

that a lawyer controls the means of achieving the client’s objectives but must consult with 

the client about those means); Machado v. State, 797 P.2d 677, 685 (Alaska App. 1990) 

(“[W]hether to bring a motion for a continuance is primarily the responsibility of counsel.”). 

41 See Machado, 797 P.2d at 685. 

– 17 – 2746
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

is the tolling of time over which the defendant may exercise control under subsection 

(d)(2). 

Thus, when faced with a defense attorney’s request for a continuance over 

the defendant’s objection, a court may not toll time under subsection (d)(2), and must 

consider that factor when ruling on the attorney’s request. In response, the court could 

deny the request for a continuance due to the defendant’s objection, or it could grant the 

request in part, authorizing a shorter continuance than requested (with time running 

during the short continuance). Or there may be other tolling provisions that apply. 

In short, our interpretation of subsection (d)(2) is not inconsistent with the 

traditional allocation of authority between the defendant and defense counsel. 

Second, the Agency argues that an attorney’s ethical duties and obligation 

of zealous representation — and by extension, a defendant’s right to a fair trial — are 

undermined when the attorney is forced to begin a trial before examining all pretrial 

motions and fully preparing for trial.42 As the Agency notes, in a majority of states, 

defense counsel’s request for a continuance, despite the defendant’s personal objection, 

tolls the statutory speedy trial clock.43 

42 See Alaska R. Prof. Conduct 1.1(a) cmt. (requiring a lawyer to provide competent 

representation, including an “inquiry into and analysis of the factual and legal elements of 

the problem. . . . [and] adequate preparation”); see also Townsend v. Superior Court, 543 

P.2d 619, 625 (Cal. 1975) (en banc) (stating that when the defendant’s right to a speedy trial 

and the defendant’s Sixth Amendment right to competent and adequately-prepared counsel 

collide, “the trial court must carefully navigate procedurally between the Scylla of delay and 

the Charybdis of ineffective and inadequate representation” (citation and quotations 

omitted)). 

43 See e.g., People v. Anderson, 649 P.2d 720, 724 (Colo. App. 1982) (holding that 

a defense counsel’s request for a continuance, even without the defendant’s personal consent, 

extends the speedy trial deadline); State v. Abrams, 350 So. 2d 1104, 1105 (Fla. Dist. App. 

1977) (“[T]he right to a speedy trial is waived when the defendant or his attorney request a 

(continued...) 

– 18 – 2746
 
 

 

 

 

 

 

 

But Alaska is not alone in giving the defendant the right to control the 

speedy trial clock when a defense attorney requests a continuance. The Kansas Supreme 

Court, for example, determined that when a defendant “timely voices his or her 

disagreement” with their defense attorney’s request for a continuance, a trial court may 

not waive the defendant’s statutory speedy trial time over their objection.44 

And at least one jurisdiction forges a middle ground. In California, a 

defense attorney’s request for a continuance is sufficient to extend the speedy trial clock 

43 (...continued) 

continuance. The acts of an attorney on behalf of a client will be binding on the client even 

though done without consulting him and even against the client’s wishes.”); People v. Keys, 

552 N.E.2d 285, 287-88 (Ill. App. 1990) (“Even if we were to find that defendant insisted 

defense counsel demand a speedy trial, the decision to not file a demand for speedy trial is 

a strategic matter left to the attorney. . . . [T]he decision to demand a speedy trial may be 

determined by counsel over defendant’s objections.”); State v. McHenry, 682 N.W.2d 212, 

231 (Neb. 2004) (noting that “several courts in other jurisdictions have explicitly held . . . 

that a defense counsel’s request for a continuance in order to prepare for trial waived the 

defendant’s statutory right to speedy trial over the defendant’s objection to the continuance,” 

and similarly holding that “the statutory right to a speedy trial is not a personal right that can 

be waived only by a defendant”); State v. Campbell, 691 P.2d 929, 938 (Wash. 1984) (en 

banc) (holding that trial court properly granted defense counsel’s request for a continuance, 

even over defendant’s objection, to allow more time to prepare for trial and ensure effective 

representation and a fair trial); see also 5 Wayne R. LaFave et al., Criminal Procedure § 

18.3(c), at 175 (4th ed. 2015) (identifying states with statutes that designate excluded periods 

of time “in some detail,” the majority of which provide for a continuance granted with the 

consent of the defendant or their counsel (citing Ark. R. Crim. P. 28.3; Haw. R. Penal P. 48; 

Mass. R. Crim. P. 36; Neb. Rev. Stat. § 29-1207; N.Y. C.P.L. § 30.30; S.D. Codified Laws 

Ann. § 23A-44-5.1)). 

44 State v. Vaughn, 200 P.3d 446, 450-51 (Kan. 2009) (citing State v. Hines, 7 P.3d 

1237, 1241 (Kan. 2000); State v. Brown, 823 P.2d 190, 195 (Kan. 1991)). But see State v. 

Ward, 608 P.2d 1351, 1354 (Kan. 1980) (holding that defendant’s statutory speedy trial right 

was not violated despite defendant’s various objections to counsel’s continuance requests — 

namely, because the delays were caused by the defendant’s interference with defense 

counsel’s efforts and the need for additional time to develop the insanity defense). 

– 19 – 2746
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

absent the defendant’s agreement, but only where counsel “is pursuing his client’s best 

interests in a competent manner.”45 Thus, defense counsel may waive a defendant’s 

statutory right to a speedy trial over the client’s objection in circumstances where the 

delay is required to further the client’s interests or is due to an unforeseen or exceptional 

circumstance, such as illness of counsel.46 But counsel may not postpone the trial date 

beyond the statutory period “solely to resolve a calendar conflict and not to promote the 

best interests” of the defendant, unless the request is supported by the express or implied 

consent of the defendant.47 

Moreover, there are competing policy rationales that favor a rule requiring 

a defendant’s personal consent to a continuance in order to toll the speedy trial clock. 

As the supreme court stated in Peterson v. State, “Rule 45 was promulgated to insure 

protection of the constitutional right to a speedy trial and to advance the public interest 

in swift justice.”48 During the discussion of the Governor’s proposed amendment to 

Rule 45(d)(2) in 2019, at least one state senator asserted that, because Rule 45 bestows 

upon defendants the right to have their case tried within a certain period of time, a 

defendant should have the authority to choose to forgo fully prepared counsel in favor 

of proceeding immediately to trial.49 

45 Townsend, 543 P.2d at 624. 

46 See People v. Superior Court (Alexander), 31 Cal.App. 4th 1119, 1135-36, 37 Cal. 

Rptr. 2d 729, 740-41 (Cal. App. 1995). 

47 Id., 31 Cal.App.4th at 1128, 37 Cal.Rptr. 2d at 735 (citations and quotation 

omitted). 

48 Peterson v. State, 562 P.2d 1350, 1358 (Alaska 1977). 

49 See Audio of Senate Judiciary Comm., Senate Bill 33, Statement of Sen. Jesse 

Kiehl, at 3:03:24 – 3:08:16 p.m. (Mar. 25, 2019) (objecting to proposed change to 

(continued...) 

– 20 – 2746
 
 

 

 

 

 

 

 

 

 

Ultimately,we conclude that, in the absence of any clear intent toovercome 

the plain language of the rule, and in light of the competing policy rationales, a 

continuance sought under Criminal Rule 45(d)(2) requires the consent of both the 

defendant and the defendant’s attorney in order to toll the speedy trial clock. 

That said, our case law is clear that a defendant’s express personal waiver 

is not required in order to toll time under Rule 45(d)(2).50 As the supreme court has 

recognized, “The outer limits of Alaska’s constitutional right to speedy trial are not 

defined by Rule 45” and “decisions pertaining to waiver of fundamental constitutional 

rights are inapplicable[.]”51 

49 (...continued) 

Rule 45(d)(2) based on the Senator’s belief that “any competent defendant has the right to 

screw up their own defense”); cf. McGautha v. California, 402 U.S. 183, 213 (1971) (“The 

criminal process . . . is replete with situations requiring the making of difficult judgments as 

to which course to follow. Although a defendant may have a right, even of constitutional 

dimensions, to follow whichever course he chooses, the Constitution does not by that token 

always forbid requiring him to choose.” (citation and quotations omitted)); Yoder v. State, 

2008 WL 2853443, at *3 (Alaska App. July 23, 2008) (unpublished) (holding that 

defendant’s choice between two competing rights — waiving right to counsel or agreeing to 

a continuance that would have exceeded the 120-day speedy trial limit — was “not sufficient 

to render the choice constitutionally offensive” (citation and quotation omitted)). 

50 State v. Jeske, 823 P.2d 6, 8 (Alaska App. 1991) (“[T]he trial court normally does 

not need to secure a personal waiver from the defendant when the defense attorney takes 

action or acquiesces in action that, under Rule 45(d), stops the running of Rule 45.”). 

51 Snyder v. State, 524 P.2d 661, 664 (Alaska 1974); see also State v. Clouatre, 516 

P.2d 1189, 1191 (Alaska 1973) (“It must be kept in mind that the 120 day period set up by 

Rule 45 is only a basic datum. A considerably longer period could elapse before trial without 

resultant unfairness or injustice to the accused.”); Stuard v. Stewart, 401 F.3d 1064, 1068-69 

(9th Cir. 2005) (explaining that a defendant’s statutory right to speedy trial under state law 

does not implicate the constitutional speedy trial right). The constitutional right to a speedy 

trial is set out in Article I, Section 11 of the Alaska Constitution, which provides: “In all 

(continued...) 

– 21 – 2746
 
 

 

 

 

 

 

 

 

 

 

 

 

For this reason, and in light of our prior case law, we continue to hold that, 

absent evidence to the contrary, a defendant’s consent to a continuance requested by 

defense counsel may be inferred from their silence or even in their absence.52 As we 

have previously recognized, “[W]hether to bring a motion for a continuance is primarily 

the responsibility of counsel.”53 Thus, as a general matter, “the court may rely upon the 

request of counsel for a continuance, without seeking a separate waiver from the 

defendant” or engaging a represented defendant in a direct colloquy about their 

understanding of their speedy trial right or their consent.54 

At the same time, this rule presumes that counsel will make the decision to 

move for a continuance only after consultation with the defendant.55 If the defendant 

affirmatively objects to defense counsel’s request for a continuance, the trial court may 

not toll the speedy trial clock under Rule 45(d)(2). 

51 (...continued) 

criminal prosecutions, the accused shall have the right to a speedy and public trial[.]” See 

also U.S. Const. amend. VI (same). 

52 Jeske, 823 P.2d at 8; Coffman v. State, 2002 WL 341988, at *14 (Alaska App. 

Mar. 6, 2002) (unpublished); see also Wardlow v. State, 2 P.3d 1238, 1242-43 (Alaska App. 

2000); State v. Vaughn, 200 P.3d 446, 451 (Kan. 2009) (holding that “[a]ctions of defense 

counsel are attributable to the defendant in computing speedy trial violations unless the 

defendant timely voices his or her disagreement with those actions”). 

53 Machado v. State, 797 P.2d 677, 685 (Alaska App. 1990). 

54 Id.; see also Henson v. State, 576 P.2d 1352, 1356 n.9 (Alaska 1978) (defendant’s 

consent to Rule 45 waiver presumed “[a]bsent some expression of objection” on the record); 

Jeske, 823 P.2d at 8 (“[T]he trial court normally does not need to secure a personal waiver 

from the defendant when the defense attorney takes action or acquiesces in action that, under 

Rule 45(d), stops the running of Rule 45.”). 

55 Machado, 797 P.2d at 685; see also Alaska R. Prof. Conduct 1.2(a) (providing that 

a lawyer controls the means of achieving the client’s objectives but must consult with the 

client about those means). 

– 22 – 2746
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

A note on the application of other tolling provisions 

As we noted earlier, the conclusion we reach today — that the trial court 

may not prospectively toll the speedy trial clock under Criminal Rule 45(d)(2) if the 

defendant objects to therequestedcontinuance —is supported by our existing case law.56 

Today’s opinion is intended to clear up any misunderstanding about the requirements of 

the rule and about defense attorneys’ obligations to explain the rule to their clients and 

to obtain their consent to any requested continuances.57 

But we acknowledge the practical challenges that this ruling may present, 

and the question naturally arises as to what a court should do when faced with a 

defendant’s objection to a defense attorney’s request for a continuance. Amicus curiae 

suggests that the solution is to be found in Rule 45(d)(7) — the catch-all provision of 

Rule 45 that grants trial courts the authority to toll “[o]ther periods of delay for good 

cause.” This provision has been used to toll the speedy trial clock in situations where the 

defense counsel was unavailable for trial on a particular date.58 

56 See Jeske, 823 P.2d at 9 (holding that “[o]nce it is clear that the defendant has not 

consented and will not consent to the continuance, Rule 45(d)(2) directs the trial judge to 

restart the Rule 45 clock”). 

57 When a defendant is unrepresented, it is the trial court’s responsibility to explain 

the speedy trial rule to the defendant and the effect that any continuance will have on the 

speedy trial clock. See Alaska R. Crim. P. 45(d)(2) (“A defendant without counsel shall not 

be deemed to have consented to a continuance unless the defendant has been advised by the 

court of the right to a speedy trial under this rule and of the effect of consent.”). 

58 See, e.g., Baker v. State, 2010 WL 5022043, at *2 (Alaska App. Dec. 8, 2010) 

(unpublished) (“Regardless of the defendant’s consent, the unavailabilityof trial counsel will 

ordinarily constitute ‘good cause’ for a short delay of a trial.”); Simeon v. State, 2001 WL 

987225, at *4 (Alaska App. Aug. 29, 2001) (unpublished) (upholding the tolling of Rule 45 

under subsection (d)(7) where defendant’s original counsel was unavailable and substitute 

counsel had to be appointed); see also Cook v. State, 2006 WL 2578646, at *2 (Alaska App. 

(continued...) 

– 23 – 2746
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

But there are limitations to the use of this provision. In Peterkin v. State, 

the Alaska Supreme Court addressed whether Rule 45(d)(7)’s general “good cause” 

exception could be used to cover a situation that was otherwise covered by a different 

enumerated exception.59 The alleged cause of delay in Peterkin was the physical 

condition of the complaining witness who had suffered a gunshot to the head and whose 

future ability to participate at trial was still unclear.60 As the supreme court noted, 

Rule 45(d)(3)(A) grants trial courts the authority to toll the speedy trial clock when a 

prosecutor timely requests a continuance, and: 

The continuance is granted because of the unavailability of 

evidence material to the state’s case, when the prosecuting 

attorney has exercised due diligence to obtain such evidence 

and there are reasonable grounds to believe that such 

evidence will be available at the later date[.][61] 

But the problem in Peterkin was that the prosecuting attorney never moved 

for a continuance on that basis. The supreme court therefore addressed the question of 

“whether the physical condition of the victim constitute[d] good cause within 

58 (...continued) 

Sept. 6, 2006) (unpublished) (upholding court’s tolling of Rule 45 based on defense 

attorney’s unavailability where defendant did not challenge court’s finding that her attorney 

had conflicting obligations during that time period); Walluk v. State, 2007 WL 293074, at *2 

(Alaska App. Jan. 31, 2007) (unpublished) (same); Rosenquist v. State, 2007 WL 3317537, 

at *2 (Alaska App. Nov. 7, 2007) (unpublished) (same); McGahan v. State, 2007 WL 

4125312, at *2 (Alaska App. Nov. 21, 2007) (unpublished) (same); cf. Keller v. State, 84 

P.3d 1010, 1012-15 (Alaska App. 2004) (holding that the unavailability of a substitute local 

trial judge and the need to assign a judge from a different court location was good cause for 

a short delay). 

59 Peterkin v. State, 543 P.2d 418, 423 (Alaska 1975). 

60 Id. at 420. 

61 Id. at 419 n.2 (quoting Alaska R. Crim. P. 45(d)(3)(a)). 

– 24 – 2746
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rule 45(d)(7) absent a motion for a continuance under Rule 45(d)(3)(a).”62 The court 

concluded that Rule 45(d)(7) was intended to cover only those “unique” or “unforeseen” 

circumstances that were not otherwise covered by the other enumerated exceptions, 

noting that the procedural protections provided by Rule 45(d)(3)(A) would be “diluted 

if the State may safely ignore the motion requirement, let time run beyond the 120-day 

period, and then rely on a post hoc adjudication, with full benefit of hindsight, under the 

residual ‘good cause’ category.”63 

Peterkin therefore suggests that the (d)(7) “good cause” exception should 

be used sparingly and that trial courts should be hesitant to rely on subsection (d)(7) to 

toll Rule 45 if the delay would otherwise have been covered by subsection (d)(2) but for 

the defendant’s objection. Instead, trial courts should question the defense attorney 

regarding thereasons for the requested continuance to determinewhether thespeedy trial 

time should run (the default) or whether tolling is appropriate under another provision. 

Thus, for example, if the reason for the requested continuance involves the 

State’s failure to timely produce routine discovery under Alaska Criminal Rule 16(b)(1), 

the court should consider allowing the time to run while taking necessary action to 

enforce the self-executing mandate of Rule 16(b).64 Or, if the reason for the requested 

continuance involves “unique” or “unforeseen” circumstances such as the attorney’s 

illness or the illness of a family member, tolling under subsection (d)(7) may be 

appropriate. 

62 Id. at 423. 

63 Id. at 423-24. 

64 See Miller v. State, 706 P.2d 336, 339 (Alaska App. 1985) (holding that the 

defendant’s standard discovery request that the State provide mandatory disclosures under 

Rule 16(b) did not toll Rule 45 because no court action was required). The reasons why 

discovery is delayed should also figure into the court’s calculus. 

– 25 – 2746
 
In Peterkin, the supreme court recognized that there may be rare 

circumstances when the interests of justice require tolling of the speedy trial clock even 

though none of the tolling provisions apply.65 The court explained that Alaska Criminal 

Rule 53, the catch-all provision for the criminal rules, is the appropriate remedy for such 

situations. Rule 53 provides: 

These rules are designed to facilitate business and advance 

justice. They may be relaxed or dispensed with by the court 

in any case where it shall be manifest to the court that a strict 

adherence to them will work injustice.[66] 

Thus, when it is manifest to the trial court that the failure to toll Rule 45 would cause 

injustice, the court may conclude that justice requires a relaxation of the joint consent 

requirement in Rule 45(d)(2). But this option should be used only in those extreme 

situations that warrant it.67 

The prospective waiver of future ineffective assistance of counsel claims 

was improper 

We now turn to the superior court’s decision to require Ward, the defendant 

in the original underlying trial court case, to waive future claims of ineffective assistance 

65 Peterkin, 543 P.2d at 424. 

66 Alaska R. Crim. P. 53; see also Peterkin, 543 P.2d at 424 (“Reliance on Rule 53 

will assure that no grave inequities are perpetrated where non-compliance with one of the 

enumerated exclusions found in subsections (1) through (6) of 45(d) is justifiable or 

excusable.”). 

67 See, e.g., Peterson v. State, 562 P.2d 1350, 1360 (Alaska 1977) (holding that 

relaxation of Rule 45 was appropriate because of the combination of four factors unique to 

the case — “(1) the severity of the crimes alleged, (2) the lack of any identifiable prejudice 

to the [defendant] due to the delay, (3) the extremely short period of delay beyond 120 days, 

and (4) the unique difficulty of investigating crimes in bush areas” — but noting that “few 

cases will be sufficiently unusual to justify relaxation of Rule 45”). 

– 26 – 2746
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

of counsel if he wished to proceed to trial with his attorney who stated on the record that 

he was unprepared.68 

The superior court informed Ward that if he proceeded to trial with an 

unprepared attorney, “[Y]ou would be giving up your ability to file what’s called a postconviction relief application to challenge the performance of your attorney during the 

trial.” The court stated, “You’re not going to be able to claim that he showed up at trial 

. . . and wasn’t prepared and ready as he should be.” Ward stated that he understood, and 

that he still wanted to proceed immediately to trial. 

Ward’s attorney objected to this waiver, arguing that Ward could not fully 

understand what he was waiving since he could not foresee what would happen at trial. 

The superior court disagreed: “[C]ertainly, if the claimby Mr. Ward going forward were 

to be that [his attorney] was not fully prepared for trial, that seems like something he can 

waive. [His attorney is] telling him right now that [the attorney is] not fully prepared for 

trial.” 

But the court then had difficulty explaining the parameters of the waiver to 

Ward. For example, the court struggled to distinguish between ineffective assistance 

claims based on the trial attorney’s lack of preparation — which Ward was waiving — 

and those based on other errors: 

If it maybe is [that defense counsel] failed to object to 

something that [he] clearly should have, any competent 

lawyer would have, or — I don’t know, failed to argue a jury 

instruction properly, those seem like things that, . . . whether 

or not you’re fully prepared for trial . . . , would not 

68 Because Ward proceeded to trial with prepared counsel following our decision to 

grant this original application and order full briefing, any waiver of his future ineffective 

assistance claims with respect to his initial counsel became moot. See Court of Appeals 

File No. A-13508 (Order dated Jan. 13, 2020), at 1-2; Court of Appeals File No. A-13508 

(Order dated Feb. 19, 2020), at 1. 

– 27 – 2746
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

necessarily be excused. . . . So I mean, I’ve been thinking 

about this as well. It’s difficult — I mean, there’s so many 

possible things out there. . . . I don’t know how we answer 

them all. 

In their briefing, thePublicDefender Agency and amicus curiae both argue 

that Ward’s purported waiver of his future ineffective assistance of counsel claims was 

invalid. In the trial court and in its opposition to Ward’s initial petition before this Court, 

the State argued that such a waiver was permissible. However, in its later briefing, the 

State now agrees with the Agency and amicus curiae that a prospective waiver of all 

ineffective assistance of counsel claims is improper. We agree with the parties that such 

a waiver is both invalid and unnecessary. 

The challenge the trial court faced in attempting to explain the waiver to 

Ward underscores why his waiver was invalid. A waiver is anintentional relinquishment 

or abandonment of a known right or privilege.69 In order to knowingly and intelligently 

waive a right, a defendant must understand the risks involved in that decision.70 But 

here, the court was unable to explain to Ward exactly what types of claims he was 

waiving. 

Given the difficulty in explaining the mistakes that an unprepared lawyer 

could potentially make, and the further difficulty of untangling these errors from those 

that even an unprepared attorney would be expected to avoid at trial, we question 

whether a court could ever sufficiently alert a defendant to the risks of waiving a future 

69 Glasgow v. State, 469 P.2d 682, 687 (Alaska 1970) (citing Johnson v. Zerbst, 304 

U.S. 458, 464 (1938)). 

70 See In re Sealed Case, 901 F.3d 397, 400 (D.C. Cir. 2018) (explaining that an 

“anticipatory waiver” can meet the requirements of a “knowing, intelligent, and voluntary” 

waiver only if “the defendant is aware of and understands the risks involved in [their] 

decision”). 

– 28 – 2746
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ineffective assistance of counsel claim under these circumstances. In addition, a general 

waiver of future ineffective assistance claims could give rise to a conflict of interest — 

because a defense attorney cannot advise a defendant about whether to waive a future 

claim against that attorney.71 We therefore conclude that requiring Ward to enter a 

formal waiver of future ineffective assistance of counsel claims under these 

circumstances was improper. 

Moreover, requiring such a waiver is unnecessary, as our existing system 

for evaluating post-convictionclaimsofineffectiveassistanceofcounsel already requires 

a reviewing court to assess the attorney’s performance within the specific context of each 

case. In particular, when a court evaluates a defendant’s claim of incompetent counsel, 

the court compares the attorney’s performance under the circumstances of each 

individual case against the standard for minimum competence.72 

Thus, in a case where a defendant invokes their right to a speedy trial over 

their attorney’s request for a continuance to further prepare for trial, a court later 

evaluating the defendant’s claim of ineffective assistance must consider the totality of 

the circumstances, including why the attorney needed additional time to prepare. Rather 

than engaging the defendant in a formal waiver of potential ineffective assistance claims 

due to defense counsel’s lack of preparation, trial courts need only ensure that a 

71 Id. at 403-04 (noting that a waiver of future ineffective assistance of counsel 

claims would “give rise to a conflict of interest for counsel: an attorney generally cannot 

advise a client about whether to waive a pending claim against the attorney herself” (citing 

John Wesley Hall Jr., Professional Responsibility in Criminal Defense Practice § 10:27 (3d 

ed. 2017))). 

72 See State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988) (noting that for a 

defendant to rebut the presumption of their attorney’s competence, the defendant “must 

overcome the presumption that, under the circumstances, the challenged action ‘might be 

considered sound trial strategy’” (emphasis added) (quoting Strickland v. Washington, 466 

U.S. 668, 689 (1984))). 

– 29 – 2746
 
defendant wishing to proceed to trial understands that defense counsel does not believe 

they are fully prepared for trial and confirm that the defendant would like an immediate 

trial anyway.73 

Under these circumstances, a trial courtshouldexplain to thedefendantthat 

a court evaluating a future ineffective assistance of counsel claim will take into 

consideration any reduced time the attorney had to prepare for trial. Ideally, the trial 

court will also inquire into the amount of preparation the defense attorney has conducted 

and what the attorney has not yet done in order to make a robust record for examination 

of any later post-conviction relief claims. 

But ultimately, given that the speedy trial rule gives defendants the 

authority to object to their attorney’s request for a continuance and preclude the tolling 

of time under Rule 45(d)(2), we conclude that defendants may choose to proceed to trial 

againsttheir attorney’s advicewithout formally waiving anyfuture ineffective assistance 

of counsel claims. 

Conclusion 

For the reasons set out in this opinion, we conclude that Alaska Criminal 

Rule 45(d)(2) requires the consent of both defense counsel and the defendant in order to 

exclude from the speedy trial calculation the period of delay attributable to a defense 

request for a continuance — although courts may presume that a defendant personally 

consents in the absence of any indication otherwise. Where a defendant does object to 

73 See Commonwealth v. Szuchon, 484 A.2d 1365, 1375-76 (Pa. 1984) (“Just as a 

criminal defendant may knowingly and intelligently choose to waive his right to be 

represented by counsel, so too may a defendant knowingly and intelligently choose to 

proceed to trial represented by counsel who has had little or no time for preparation. In the 

latter case, the defendant must accept the consequences of counsel’s lack of preparation.”), 

abrogated on other grounds, Commonwealth v. Lucarelli, 971 A.2d 1173 (Pa. 2009). 

– 30 – 2746
 
 

 

 

their attorney’s request for a continuance and insists on proceeding to trial immediately 

(and trial does proceed immediately), the defendant need not execute a waiver of future 

ineffective assistance of counsel claims. 

– 31 – 2746
 
Judge HARBISON, concurring. 

Although I agree with the Court’s disposition ofthis case, I write separately 

to address the practical implications of our decision. 

In my view, the conclusion we reach today, that when the trial court grants 

a continuance, this will not toll the speedy trial clock unless both the defendant and the 

defense attorney consent to the continuance, is well-established law. However, the 

briefing in this case suggests that practitioners and trial courts have not had a uniform 

understanding of this requirement and that enforcement of this rule may have been 

erratic. 

Alaska’s appellate courts have long held that the time for trial under Alaska 

Criminal Rule 45 may be tolled after an attorney consents to a continuance and that it is 

not necessary for a trial court to personally address the defendant.1 

 But, as we explain 

today, Rule 45(d)(2) allows for tolling of the speedy trial clock only if both the defense 

attorney and the defendant consent to the continuance. The rule assumes, as does our 

appellate case law, that a defendant who is represented by an attorney need not be 

advised by the court of their right to a speedy trial or the effect of their consent because 

the attorney has a duty to provide this information and to notify the trial court if the 

defendant does not consent.2 

 On the other hand, Rule 45(d)(2) specifically provides that 

1 See Snyder v. State, 524 P.2d 661, 664 (Alaska 1974) (explaining that the Rule 45 

speedy trial right is not a fundamental right requiring a direct colloquy between the trial court 

and the defendant); O’Dell v. Anchorage, 573 P.2d 1381, 1384 (Alaska 1978) (holding that 

defense counsel’s non-opposition to a continuance “was tantamount to consent” that tolled 

the defendant’s speedy trial time). 

2 See Machado v. State, 797 P.2d 677, 685 (Alaska App. 1990) (explaining that the 

Court “assumes that counsel will make the decision to move for a continuance after 

consultation with the defendant”). 

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a defendant who is without counsel will not be deemed to have consented to a 

continuance unless the trial court advises the defendant of their right to a speedy trial and 

the effect of consenting to a continuance. 

In other words, the rule assumes that when a defendant is represented by 

an attorney, the attorney will advise the defendant of their right to a speedy trial and the 

effect of consenting to a continuance. But when a defendant is unrepresented, the court 

will provide this advisement. Similarly, once an attorney has provided this advisement 

to a defendant, if the defendant objects to the continuance, the attorney has a duty to be 

candid with the court and to inform the court of the defendant’s objection. 

Criminal Rule 45(d)(2) also contains a provision that restricts the court’s 

ability to grant a continuance requested by, or with the consent of, the defendant and the 

defense attorney. Under this provision, a court may grant such a continuance “only if 

it is satisfied that the postponement is in the interest of justice, taking into account the 

public interest in the prompt disposition of criminal offenses, and after consideration of 

the interests of the crime victim, if known[.]” 

Rule 45 is intended to protect the rights of criminal defendants and also to 

protect the public’s significant interest in timely justice. It seeks to accomplish this in 

several ways: (1) by giving preference to criminal proceedings over other matters on the 

court’s calendars (and also giving preference to cases with defendants in custody); (2) by 

requiring trial courts to set trial dates at the time of arraignment and to immediately set 

a date certain for trial if a trial date is vacated; (3) by requiring that a criminal defendant 

be tried within 120 days from the date the charging document is served on the defendant; 

and (4) by limiting the periods of time that may be excluded in computing the time for 

trial.3 

3 Alaska R. Crim. P. 45(a), (b), (c)(1), and (d). 

– 33 – 2746
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In spite of Rule 45’s clear purpose, in Alaska, the mean time to disposition 

for felony cases that resolve by a jury trial has hovered at around 600 days.4 For 

misdemeanor cases that are resolved by jury trials, the mean time to disposition has been 

just under 365 days.5 

The causes of pretrial delay in Alaska are complex, and the blame for them 

cannot be placed on any single institutional actor. Overburdened prosecutors and 

defense attorneys alike rely on delays in the system, and trial courts with busy dockets 

are left to enforce Rule 45, often over objections from both parties. 

But this case suggests that a widespread misunderstanding of the tolling 

provisions of Rule 45(d)(2) may be partly to blame for the current situation in which 

extraordinary delays have become the norm, and the rights of criminal defendants and 

the public interest in the prompt disposition of criminal offenses are given short shrift. 

The clarity provided by today’s opinion — that a continuance will not toll the time for 

trial under Rule 45(d)(2) unless the defendant consents to it — will not, standing alone, 

reduce pretrial delay in Alaska. But it may bring Rule 45 one step closer to its original 

purpose of ensuring that criminal defendants are brought to trial without undue delay. 

4 Alaska Criminal Justice Commission, 2020 Annual Report 55 (Oct. 30, 2020), 

http://www.ajc.state.ak.us/acjc/docs/ar/2020.pdf (chart showing time to disposition for felony 

cases from 2017-2020). This excludes data from after April 2020, as these data were 

impacted by the pandemic and have become much worse. See Alaska Criminal Justice 

C o m m i s s i o n , 2 0 2 1 A n n u a l R e p o r t 4 4 ( N o v . 1 , 2 0 2 1 ) , 

http://ajc.alaska.gov/acjc/docs/ar/2021.pdf. 

5 Alaska Criminal Justice Commission, 2020 Annual Report 55 (Oct. 30, 2020), 

http://www.ajc.state.ak.us/acjc/docs/ar/2020.pdf. 

– 34 – 2746