Ralph Hernandez v. State of Alaska ( 2024 )

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
RALPH HERNANDEZ,
Court of Appeals No. A-13618
Appellant, Trial Court No. 3AN-11-10733 CR
v.
OPINION
STATE OF ALASKA,
Appellee. No. 2772 — February 9, 2024
Appeal from the Superior Court, Third Judicial District,
Anchorage, Michael L. Wolverton, Judge.
Appearances: Renee McFarland, Assistant Public Defender,
and Samantha Cherot, Public Defender, Anchorage, for the
Appellant. Heather Stenson, Assistant Attorney General,
Office of Criminal Appeals, Anchorage, and Treg R. Taylor,
Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
Judge HARBISON, writing for the Court and concurring
separately.
Judge ALLARD, concurring.
Judge TERRELL, dissenting.
Although a speedy trial is guaranteed to a criminal defendant by the
United States and Alaska constitutions,1 Ralph Hernandez was not brought to trial until
over seven years after his arrest. During the trial court proceedings, Hernandez was
represented by a series of court-appointed attorneys, none of whom objected to the
delay in bringing the case to trial. Hernandez himself did object, however, and he also
moved for dismissal of the charges on constitutional speedy trial grounds. The trial
court summarily denied his motions without conducting an evidentiary hearing. The
case proceeded to trial, and Hernandez ultimately was convicted of three counts of first-
degree sexual abuse of a minor and one count of attempted second-degree sexual abuse
of a minor.2
Hernandez appeals his convictions, arguing that the delay violated his
right to a speedy trial.
For the reasons explained in this opinion, we conclude that the length of
the pretrial delay was presumptively prejudicial under both the Alaska and the United
States constitutions, and accordingly the case must be remanded to the trial court so that
it may conduct an evidentiary hearing to develop a sufficient record on which to
evaluate the merits of Hernandez’s constitutional speedy trial claims.
The pretrial delay was presumptively prejudicial requiring remand for an
evidentiary hearing
The right to a speedy trial is guaranteed by Article I, Section 11 of the
Alaska Constitution and by the Sixth Amendment to the United States Constitution. The
Alaska Supreme Court recently explained the reason for this constitutional protection:
1
U.S. Const. amend. VI; Alaska Const. art. I, § 11.
2
AS 11.41.434(a)(1) and AS 11.41.436(a)(1) & AS 11.31.100(a), respectively.
Hernandez was also indicted for two counts of possessing child pornography in violation
of AS 11.61.127, but these charges were severed after pretrial litigation by Hernandez’s
attorney.
–2– 2772
[T]he core evil that the right was originally designed to
prevent was lengthy pretrial incarceration. But modern cases
have recognized that the right has broader purposes.
Inordinate delay, regardless of incarceration, may impair a
defendant’s ability to prepare an effective defense. And
regardless of prejudice in attempting to defend on the merits,
long delay may “seriously interfere with [a] defendant’s
liberty, whether he is free on bail or not, and . . . may disrupt
his employment, drain his financial resources, curtail his
associations, subject him to public obloquy, and create
anxiety in him, his family[,] and his friends.”[3]
The United States Supreme Court has similarly stated that the right to a
speedy trial ensures that defendants are treated fairly.4 Furthermore, in Barker v. Wingo,
its seminal case on this subject, the Court emphasized that society also has an interest
in the swift resolution of criminal cases that “exists separate from, and at times in
opposition to, the interests of the accused.”5 The Court stated:
The inability of courts to provide a prompt trial has
contributed to a large backlog of cases in urban courts which,
among other things, enables defendants to negotiate more
effectively for pleas of guilty to lesser offenses and
otherwise manipulate the system. In addition, persons
released on bond for lengthy periods awaiting trial have an
opportunity to commit other crimes. . . . Moreover, the
longer an accused is free awaiting trial, the more tempting
becomes his opportunity to jump bail and escape. [The]
delay between arrest and punishment may have a detrimental
effect on rehabilitation.
If an accused cannot make bail, he is generally
confined, . . . in a local jail [which] contributes to the
overcrowding and generally deplorable state of those
institutions. Lengthy exposure to these conditions “has a
3
State v. Wright, 404 P.3d 166, 171-72 (Alaska 2017) (quoting United States v.
Marion, 404 U.S. 307, 320 (1971)).
4
Barker v. Wingo, 407 U.S. 514, 519 (1972).
5
Id.–3– 2772
destructive effect on human character and makes the
rehabilitation of the individual offender much more
difficult.” At times the result may even be violent rioting.
Finally, lengthy pretrial detention is costly . . . amount[ing]
to millions across the Nation. In addition, society loses
wages which might have been earned, and it must often
support families of incarcerated breadwinners.[6]
In explaining that the right to a speedy trial might actually work against
the interests of the accused, the Barker court observed: “Delay is not an uncommon
defense tactic. As the time between the commission of the crime and trial lengthens,
witnesses may become unavailable or their memories may fade. If the witnesses support
the prosecution, its case will be weakened, sometimes seriously so.”7 For this reason,
unlike the right to counsel or the right to be free from compelled self-incrimination,
deprivation of the right to a speedy trial does not per se prejudice the accused’s ability
to defend themselves.
The Supreme Court ultimately concluded that the “amorphous quality” of
the right to a speedy trial means that any inquiry into a speedy trial claim “necessitates
a functional analysis of the right in the particular context of the case.” 8 It thus adopted
a balancing test, identifying “some of the factors” which courts should assess in
determining whether the defendant’s right to speedy trial has been violated. 9 These
factors are: the length of delay, the reason for the delay, the defendant’s assertion of the
right, and the prejudice to the defendant.10 Alaska’s appellate courts subsequently
6
Id. at 519-521 (citations omitted).
7
Id. at 521.
8
Id. at 522.
9
Id. at 530.
10
Id. at 530-32.
–4– 2772
adopted this test for use in evaluating speedy trial claims under the Alaska
constitution.11
Despite Barker’s rejection of a “rigid approach” to determining whether a
defendant’s right to speedy trial has been violated and its conclusion that speedy trial
claims must be assessed in the context of a particular case, the United States Supreme
Court stopped short of requiring such an assessment in all cases.12 Instead, it held that
the length of the delay must be used as a starting point to determine whether it is
necessary for a court to conduct such an assessment.13 In order to trigger a speedy trial
analysis, the defendant must allege that the interval between accusation and trial has
crossed the threshold dividing ordinary delay from presumptively prejudicial delay. In
other words, the defendant must establish that their case was not prosecuted with
“customary promptness.”14 If the defendant makes this showing, then the court should
conduct an inquiry, applying and balancing the Barker factors, to determine whether
the defendant’s constitutional right to a speedy trial has been violated.
There is no question that the required showing has been made here. In
Doggett v. United States, the United States Supreme Court noted that delays
“approach[ing] one year” are generally sufficient to trigger review of the Barker
11
State v. Wright, 404 P.3d 166, 178 (Alaska 2017); State v. Mouser, 806 P.2d 330,
340 (Alaska App. 1991).
12
Barker, 407 U.S. at 529-30.
13
Id. at 530.
14
Doggett v. United States, 505 U.S. 647, 652 (1992).
–5– 2772
factors.15 Here, the delay from the time of arrest to the beginning of trial was just over
seven years. Such a lengthy delay clearly requires analysis of the Barker factors.16
In arguing otherwise, the State relies on Alaska Supreme Court case law
that pre-dates Alaska’s adoption of the Barker balancing test. Under this prior case law,
the total length of delay is immaterial.17 Instead, to determine whether the length of
delay qualifies as presumptively prejudicial, the delay that is attributable to the
defendant is subtracted from the total length of delay.18 If the remaining length of delay
is more than fourteen months, Alaska courts have treated the delay as “presumptively
prejudicial” for purposes of the Alaska constitution’s speedy trial right.19 If the
remaining length of delay is less than eight months, the defendant must demonstrate
actual prejudice.20
15
Id. at 652 n.1. See also United States v. Lonich, 23 F.4th 881, 893 (9th Cir. 2022);
United States v. Seltzer, 595 F.3d 1170, 1176 (10th Cir. 2010); United States v. Mendoza,
530 F.3d 758, 762 (9th Cir. 2008); United States v. Gregory, 322 F.3d 1157, 1161-62, 1162
n.3 (9th Cir. 2003); United States v. Lam, 251 F.3d 852, 856 (9th Cir. 2001).
16
See Barker, 407 U.S. at 533 (“It is clear that the length of delay between arrest and
trial — well over five years — was extraordinary.”).
17
See, e.g., Rutherford v. State, 486 P.2d 946, 951-52 (Alaska 1971); Tarnef v. State,
492 P.2d 109, 112-13 (Alaska 1971); Nickerson v. State, 492 P.2d 118, 120 (Alaska 1971);
Glasgow v. State, 469 P.2d 682, 688-89 (Alaska 1970).
18
Rutherford, 486 P.2d at 952 n.15; Glasgow, 469 P.2d at 688-89, 688 n.9.
19
Glasgow, 469 P.2d at 688-89; Rutherford, 486 P.2d at 948; State v. Mardock, 490
P.2d 1223, 1226 (Alaska 1971). See also Tarnef, 492 P.2d at 112 (“It is not without
significance that in each case where we have attached a presumption of prejudice from a
delay in trial, that delay has exceeded fourteen months.”); Nickerson, 492 P.2d at 120 (“In
the three cases where we have attached a presumption of prejudice . . . the delay exceeded
fourteen months.”).
20
Nickerson, 492 P.2d at 120 (“We hold that in [delays of less than eight months] we
will not presume prejudice from the length of the delay. We will require the defendant to
demonstrate prejudice in order to prevail.”).
–6– 2772
But this Court adopted the Barker test in State v. Mouser.21 And as various
commentators have explained, deducting the time attributable to the defendant for
purposes of this initial threshold inquiry is inconsistent with the Barker test, which
treats the reason for the delay as a separate factor to be considered if (and only if) the
initial threshold under the first factor is met.22 For example, in his treatise on criminal
procedure, Professor LaFave has explained:
Some lower courts apply the first Barker factor “not simply
by adding together the number of days between accusation
and trial but rather by deducting from this total pretrial
period the number of days’ delay caused by, or attributable
to, either the defense or circumstances otherwise beyond the
prosecution’s control.” This is incorrect, for such matters are
to be considered under the second and third factors.[23]
Since our adoption of the Barker test in 1991, Alaska courts have not
explicitly rejected the prior approach of considering the reason for the delay as part of
the initial threshold inquiry, but both this Court in State v. Mouser and the supreme
court in State v. Wright calculated the first Barker factor without considering the reason
for the delay.24 We recognize that our Court has, in later decisions, continued to use the
pre-Mouser accounting method in evaluating length of delay.25 But we have done so
21
State v. Mouser, 806 P.2d 330, 340 (Alaska App. 1991); see also State v. Wright,
404 P.3d 166, 178 (Alaska 2017) (acknowledging adoption of the Barker test).
22
See, e.g., 5 Wayne R. LaFave et al., Criminal Procedure §18.2(b), at 130-32 (4th
ed. 2015); State v. Serros, 366 P.3d 1121, 1131 (N.M. 2015) (holding that the parties’ fault
in causing the delay is irrelevant to the analysis of the first Barker factor).
23
LaFave, Criminal Procedure §18.2(b), at 132 (citation omitted).
24
See Mouser, 860 P.2d at 336, 339-41; Wright, 404 P.3d at 178.
25
See, e.g., Alvarez v. Ketchikan Gateway Borough, 91 P.3d 289, 294-95 (Alaska
App. 2004); Davis v. State, 133 P.3d 719, 725 (Alaska App. 2006); Tix v. State, 2011
WL 2437680, at *4 (Alaska App. June 15, 2011) (unpublished); Sage v. State, 2002
WL 1150722, at *2 (Alaska App. May 29, 2002) (unpublished).
–7– 2772
without acknowledging the obvious tension with the Barker test, which reserves
consideration of the reason for delay until the initial threshold inquiry has been met. In
order to hew to our adoption of Barker, we will not rely on this alternative method of
accounting in this or future cases.
Here, the total length of delay was more than sufficient to trigger an
analysis of the Barker factors. We accordingly conclude that the superior court should
have engaged in the “difficult and sensitive balancing process” required by Barker —
considering the length of delay, the reason for delay, the defendant’s assertion of their
speedy trial right, and prejudice to the defendant.26
Hernandez adequately preserved his constitutional speedy trial claims
The State argues that Hernandez did not preserve his constitutional speedy
trial claims in the trial court proceedings because none of his attorneys ever raised these
claims on his behalf. But the State’s argument does not adequately consider the record
in this case (which demonstrates that Hernandez himself raised this claim and obtained
a ruling on it), and it ignores the reality that defendants and defense attorneys are not
always aligned on speedy trial issues.
As a general matter, to preserve an issue for appeal, the issue must have
been presented to and ruled on by the trial court.27 This requirement is a prudential
26
Barker v. Wingo, 407 U.S. 514, 530-33 (1972). See also Wright, 404 P.3d at 178
(noting that “[n]o one of these factors is a necessary or sufficient condition to finding a
speedy trial violation. Rather, the factors are related and must be considered together with
other relevant circumstances.” (citations omitted)); Doggett v. United States, 505 U.S. 647,
651-52 (1992) (“The first [Barker factor] is actually a double enquiry. Simply to trigger a
speedy trial analysis, an accused must allege that the interval between accusation and trial
has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay . . . .
[T]he court must then consider, as one factor among several, the extent to which the delay
stretches beyond the bare minimum needed to trigger judicial examination of the claim.”
(citations omitted)).
27
See Hollstein v. State, 175 P.3d 1288, 1290 (Alaska App. 2008) (“[A] litigant who
–8– 2772
gatekeeping doctrine adopted by the courts to serve important judicial policies,
including: ensuring the primacy of the trial court proceedings, creating a reviewable
trial court ruling, creating a sufficient factual record so that appellate courts are not
deciding issues of law in a factual vacuum, affording the trial court the opportunity to
correct an alleged error, providing the opposing party an opportunity to respond, and
restricting the ability to attack the trial court’s decision under novel theories.28
Here, the record shows that, although none of Hernandez’s attorneys
raised any speedy trial claims, Hernandez himself consistently claimed that his
constitutional speedy trial rights were being violated. The first time Hernandez raised
speedy trial concerns in open court was approximately two years into the case, after
Hernandez had served around twenty-two months in jail.29 On July 9, 2014, Hernandez
wishes to raise an issue on appeal must show that the issue was adequately preserved in the
lower court — which means not only that the litigant presented the issue to the lower court,
but also that the lower court ruled on that issue.”); see also Ivy v. Calais Co., Inc., 397 P.3d
267, 275 (Alaska 2017) (“An argument is ordinarily not preserved for appeal if it was not
raised below.”); Johnson v. State, 328 P.3d 77, 82 (Alaska 2014) (“Typically, a litigant or
defendant must raise an objection in the trial court in order to preserve that argument for
appeal.”); Pierce v. State, 261 P.3d 428, 433 (Alaska App. 2011) (“[B]efore a litigant can
invoke the authority of an appellate court to reverse or vacate a trial court’s decision, the
litigant must demonstrate that they gave the trial judge reasonable notice of their request
or objection, and gave the judge a reasonable opportunity to respond to that request or
objection.”); Bryant v. State, 115 P.3d 1249, 1258 (Alaska App. 2005) (“Normally, an
appellant may only appeal issues on which he has obtained an adverse ruling from the trial
court.”); Mahan v. State, 51 P.3d 962, 966 (Alaska App. 2002) (“To preserve an issue for
appeal, an appellant must obtain an adverse ruling.”); 7 Wayne R. LaFave et al., Criminal
Procedure §27.5(c), at 98-102 (4th ed. 2015).
28
Johnson, 328 P.3d at 82; Alexander v. State, 611 P.2d 469, 478 (Alaska 1980);
Pierce, 261 P.3d at 433.
29
During this time, Hernandez was “viciously assaulted by several other inmates to
the point where he spent a few days in a coma.” He continued to have “lingering medical
issues” from the assault. On appeal, Hernandez’s attorney argues that this assault
constitutes prejudice for purposes of the fourth Barker factor, and the attorney also suggests
that the assault may have been the cause of Hernandez’s later obstreperous behavior in
–9– 2772
requested a representation hearing because he wanted to be appointed co-counsel. As
part of that request, Hernandez told the court that he had asked his lawyers repeatedly
to raise speedy trial claims, but none of them ever did so. After this, Hernandez
continued to personally assert his right to a speedy trial by objecting to continuances,
making oral motions to dismiss, and filing or attempting to file written assertions of this
claim. And on at least five occasions, the trial court directly ruled on Hernandez’s
assertion that his constitutional right to a speedy trial had been violated.
The first ruling occurred on July 16, 2014, in the context of the ex parte
representation hearing that Hernandez had requested. At the representation hearing,
Hernandez discussed the fact that he had had three different attorneys on the case, that
all of his attorneys had asked for continuances over his objection, and that none of his
attorneys had demanded a speedy trial for him, even though Hernandez repeatedly
brought up the issue. In response, Hernandez’s attorney pointed to the “voluminous”
discovery in Hernandez’s case and the fact that the defense had yet to start an
investigation because it was still trying to get through the discovery. The attorney also
blamed his workload and repeatedly asserted that his office was “short-staffed.” The
trial court ruled, “I find that there’s understandable delay given the fact that this has
gone from one attorney to another and now to Mr. Corrigan who has got his own heavy
trial schedule.” The trial court also denied Hernandez’s request to be appointed co-
counsel.30
The second ruling occurred approximately a month later, on August 29,
2014, during a second ex parte representation hearing. At the hearing, Hernandez gave
the court a pro per letter in which he complained about the delay that had occurred in
court.
30
Hernandez’s appointed attorney, who was at the Office of Public Advocacy, told
the court that the office did not permit hybrid representation and considered it against their
“charter.” See Ortberg v. State, 751 P.2d 1368, 1374-76 (Alaska App. 1988).
– 10 – 2772
his case and demanded that his constitutional speedy trial right be protected. (This letter
is part of the record on appeal.) Hernandez objected to the continuance requested by his
attorney, and he pointed out that his attorney had not filed any motions related to the
speedy trial issue. In response, the trial court noted that it was monitoring Alaska
Criminal Rule 45 (the statutory speedy trial clock) and Hernandez’s scheduled trial date
was within his Rule 45 time. Hernandez argued (correctly) that “Rule 45 is not
determinative upon my [constitutional] speedy trial rights,” citing to State v. Mouser.31
In response, the court stated, “It is in my court.” The following exchange then took
place:
Court: That’s my ruling. You can appeal it if you want
to, but this is my ruling.
Hernandez: I’m putting this Court on notice that I’m
preserving your denial.
Court: I just told you, you are.
Hernandez: Okay.
Court: It’s preserved for appeal.
During the next three years, Hernandez continued to raise concerns about
his speedy trial rights in open court. However, the next judicial ruling did not occur
until August 2, 2017, during another ex parte representation hearing. At this point,
Hernandez had been incarcerated for six years and he was on his fourth attorney. After
complaining about his attorneys’ inaction and failure to raise speedy trial concerns,
Hernandez stated that he was making his own “motion to dismiss for violating my . . .
speedy trial clause with prejudice” and cited Barker v. Wingo. The court replied,
“Denied.” Hernandez told the court that he was “putting this Court on notice, I’m
31
State v. Mouser, 806 P.2d 330, 339 n.6 (Alaska App. 1991) (“The speedy trial rule,
however, is also not determinative of the constitutional right to speedy trial. Although
meant to address the same concerns as the constitutional right to speedy trial, Criminal
Rule 45 was not intended as a procedural or substantive embodiment of that constitutional
right.”).
– 11 – 2772
preserving your denial of a motion for dismissal for denial for speedy trial for appeal.”
The trial court responded, “So noted.”
Three months later, during another ex parte representation hearing held
on November 15, 2017, Hernandez again moved the court to dismiss his case for speedy
trial violations. The court replied, “Denied.”
Lastly, on November 15, 2018, shortly before jury selection, at a time
when the prosecutor was present in the courtroom, Hernandez demanded that all
charges be dismissed “for violation of my speedy trial clause.” The court replied,
“Denied.”
The dissent argues that this record is insufficient to preserve Hernandez’s
constitutional speedy trial claims for appeal. The dissent points out that the court’s
rulings were all summary in nature and many of them were in ex parte representation
hearings where the prosecutor was not present.
The dissent recognizes that, although there is no constitutional right to
hybrid representation, trial courts retain the discretion to rule on a pro se motion even
if the person is represented by counsel.32 The dissent argues, however, that such
discretion should be used “sparingly.” We agree that, as a general matter, this discretion
should be used “sparingly.” But it is not clear what else Hernandez could have done to
raise his constitutional speedy trial concerns. Hernandez requested, but was denied, co-
counsel status, and the trial court found that he was not capable of representing himself
for a variety of reasons.
The dissent’s position appears to be that defendants like Hernandez are
not entitled to raise speedy trial concerns unless their attorney agrees to raise it for them.
But this position relies on the incorrect assumption that defendants and defense
attorneys are always aligned on speedy trial issues. As the Missouri Supreme Court has
observed:
32
See Ortberg, 751 P.2d at 1375.
– 12 – 2772
[T]he right to a speedy trial depends, in part, on
circumstances that are uniquely experienced by the
defendant. . . . Although defense counsel may understand
that pretrial incarceration is a vexing condition, the prejudice
to the defendant that flows from this condition is neither
experienced nor directly shared by defense counsel. A
defendant, thus, has a reason, not necessarily shared by
counsel, to want trial to proceed as expeditiously as
possible.[33]
Moreover, defense attorneys — particularly, publicly appointed attorneys — are often
burdened with other cases and other obligations unrelated to the defense of the
defendant.34 The differing burdens and loyalties can create tensions between the
interests of the defendant and the interests of their attorney, which can result in
appointed defense counsel declining to raise speedy trial issues, despite the repeated
request of the defendant. For this reason, a number of courts — both federal and state
— have held that the constitutional right to a speedy trial can be invoked pro se by a
represented defendant, regardless of whether the trial court actually rules on the pro se
motion.35
33
State ex rel. McKee v. Riley, 240 S.W.3d 720, 728 (Mo. 2007).
34
Id.35
See, e.g., United States v. Tigano, 880 F.3d 602, 618 (2d Cir. 2018) (holding that in
the context of a speedy trial action, the defendant’s assertion of the constitutional right to
a speedy trial preserves the claim for appeal even though ignored or contravened to the
defense attorney); United States v. Oriedo, 498 F.3d 593, 596 (7th Cir. 2007) (rejecting
rigid forfeiture rules in the context of the right to a speedy trial and holding that Barker’s
balancing of the defendant’s assertion of the right is the better approach); Riley, 240 S.W.3d
at 729 (holding that “a represented defendant may assert his constitutional right to a speedy
trial through a pro se motion”); State v. Serros, 366 P.3d 1121, 1143 (N.M. 2015) (holding
that a defendant’s assertion of their right to a speedy trial, even if ignored or contravened
by counsel, is a relevant fact in determining the reason for the delay); Watson v. State, 155
N.E.3d 608, 619 (Ind. 2020) (noting that although defendant was represented by counsel
when he personally asserted his right to a speedy trial, these assertions put the government
on notice that the defendant wanted to be tried).
– 13 – 2772
However, we need not determine whether the same would be true under
Alaska law because the record shows that, in this case, the trial court did rule on
Hernandez’s pro se speedy trial motions. Thus, this case is similar to other cases in
which we have held that a criminal defendant preserved a claim that was not adopted
by their attorney by obtaining a ruling on the claim from the trial judge.36 Furthermore,
Hernandez has satisfied the basic requirements of the preservation doctrine — affording
the trial court the opportunity to correct an alleged error, providing the opposing party
an opportunity to respond, and restricting the ability to attack the trial court’s decision
under novel theories. As we have explained, Hernandez personally asserted his right to
a speedy trial in the presence of the prosecutor on many occasions throughout the trial
court proceedings; he specifically cited to Barker when arguing that Rule 45 was not
dispositive of his speedy trial claims; and he obtained a ruling from the trial court at
least five separate times.37 We accordingly conclude that Hernandez’s constitutional
speedy trial claims were adequately preserved for purposes of this appeal.
There are factual questions that must be resolved in order to properly
evaluate Hernandez’s speedy trial claims
In the current case, the State argues that all but two and a half months of
the seven-year delay is attributable to Hernandez. The State appears to have reached
this conclusion because Hernandez’s court-appointed attorneys either requested (or at
least acquiesced in) the vast majority of the continuances. But this ignores the fact that
36
Glasgow v. State, 355 P.3d 597, 600 (Alaska App. 2015) (claim preserved by
defendant’s pro se pleading when the pleading contained an offer of proof and the claim
was ruled upon by the court); Abruska v. State, 705 P.2d 1261, 1271-72 (Alaska App. 1985)
(untimely claims made by the defendant not forfeited where the trial judge ruled on the
merits of the claims).
37
Although some of these rulings occurred in ex parte proceedings, Hernandez’s
repeated assertions of his constitutional right to speedy trial in open court put the State on
notice that he wanted to be tried. See Watson, 155 N.E.3d at 619.
– 14 – 2772
many of the continuance requests were over the express objection of Hernandez
himself, who repeatedly claimed that these continuances were not for his benefit.38
Moreover, some of the continuances were clearly not for Hernandez’s benefit and were
instead the result of “understaffing” in the public defense agency.39
Significantly, the dissent does not adopt the State’s claim that only two
and a half months of the delay is attributable to the State. Instead, the dissent concludes
that “[o]f the seven years and two months that it took to get the case to trial, it appears
that perhaps two and one-half years of delay, at best, are attributable to the State” — a
time period that the dissent further concludes “would not generally be viewed as a
speedy trial violation in a case of this complexity.” (The dissent does not clearly explain
how it arrives at its calculation.)
In our view, the fact that the dissent and the State disagree about the
amount of delay that should be attributable to the State demonstrates that resolution of
the speedy trial claims on the current record would be premature. Although it may
“appear” to the dissent that the majority of the delay was caused by Hernandez, there
are still issues to resolve regarding the underlying reasons for the delay, Hernandez’s
assertion of his right to a speedy trial, and the prejudice Hernandez suffered as a result
38
See Camacho v. Superior Court, 534 P.3d 484, 502 (Cal. 2023) (noting that a court
may consider if counsel waives time against defendant’s objection).
39
See Vermont v. Brillon, 556 U.S. 81, 94 (2009) (holding that a defense counsel’s
actions can generally be attributed to the defendant but recognizing that “[d]elay resulting
from a systemic ‘breakdown in the public defender system,’” could be attributable to the
State (quoting State v. Brillon, 955 A.2d 1108, 1111 (Vt. 2008))); see also State v. Ochoa,
406 P.3d 505, 515 (N.M. 2017) (holding that delay caused by agency furlough was not
attributable to the defendant but was also not attributable to the government because there
had been no systemic breakdown in the public defender system).
– 15 – 2772
of the delay.40 Accordingly, we remand this case to the superior court for further
litigation under the Barker balancing test.41
Conclusion
This matter is REMANDED to the superior court for further proceedings
consistent with this opinion. The superior court shall transmit its findings of fact and
conclusions of law to this Court on or before April 9, 2024. This deadline may be
extended for good cause with notice to this Court. We retain jurisdiction.
40
The State notes that the federal district court rejected Hernandez’s federal
constitutional speedy trial claim on the merits and it argues that we should adopt those
same findings on appeal. But the record is clear that that the federal district court primarily
rejected Hernandez’s federal constitutional speedy trial claim on federal abstention
grounds because Hernandez had not exhausted his state remedies. Moreover, the Ninth
Circuit affirmed the federal district court solely on those procedural grounds and did not
affirm the district court’s alternative ruling on the merits.
41
We note that, although the trial judge has retired, the judge continues to sit on
criminal cases on a pro tem basis and the judge may therefore be available to handle this
case on remand. But even if a new judge must be assigned, we still believe that a remand
for further proceedings is appropriate given the length of delay at issue here (over seven
years) and the case-specific, ad hoc nature of the Barker balancing test.
– 16 – 2772
Judge HARBISON, concurring.
I write separately to explain why I disagree with the State’s assertion that
whenever one of Hernandez’s attorneys requested or acquiesced in a continuance, the
reason for the delay is not chargeable to the State. In my view, this assertion ignores the
complexities of both the law and the record in this case.
In Barker v. Wingo, the United States Supreme Court explained that, in
evaluating a constitutional speedy trial claim, courts must consider “whether the
government or the criminal defendant is more to blame for that delay” and will assign
different weights to different reasons.1
If the government deliberately delays trial to hamper the defense, for
instance, that effort will weigh heavily against the prosecution.2 And while “more
neutral reason[s] such as negligence or overcrowded courts” weigh less heavily, they
“nevertheless should be considered since the ultimate responsibility for such
circumstances must rest with the government rather than with the defendant.”3 As the
Ninth Circuit has noted:
A state government’s allocation of resources plays a major
role in creating congested dockets, and it is unfair to require
defendants to bear the entire burden that results from the
government’s fiscal decisions. There must be a point at
which delay due to a congested docket becomes so
unacceptable that by itself it violates the right to a speedy
1
Barker v. Wingo, 407 U.S. 514, 531 (1972). See also Doggett v. United States, 505
U.S. 647, 651 (1992) (noting that part of the inquiry is “whether the government or the
criminal defendant is more to blame for that delay”); United States v. Brown, 169 F.3d 344,
349 (6th Cir. 1999) (noting that, because “the prosecutor and the court have an affirmative
constitutional obligation to try the defendant in a timely manner . . . the burden is on the
prosecution to explain the cause of the pretrial delay” (quoting United States v. Graham,
128 F.3d 372, 374 (6th Cir. 1997))).
2
Barker, 407 U.S. at 531.
3
Id.– 17 – 2772
trial. That point comes sooner when a defendant is
incarcerated awaiting trial.[4]
By contrast, a good-faith, reasonable justification for the delay, such as a
missing witness, or a meritorious interlocutory appeal, will weigh less heavily against
the government or not weigh against the government at all.5 Lastly, “if delay is
attributable to the defendant, then his waiver [of his right to a speedy trial] may be given
effect under standard waiver doctrine,” in accord with the reality that defendants may
have incentives to employ delay as a defense tactic. 6
In the present case, Hernandez was incarcerated from the time he was
arrested and formally charged in September 2011 through the time he was brought to
trial over seven years later.7 The record reflects that Hernandez had five different
attorneys throughout the proceedings, and these attorneys made numerous requests for
continuances.
4
Tucker v. Wolff, 581 F.2d 235, 237 (9th Cir. 1978).
5
Barker, 407 U.S. at 531 (noting “a valid reason, such as a missing witness, should
serve to justify appropriate delay”); United States v. Loud Hawk, 474 U.S. 302, 315 (1986)
(noting “an interlocutory appeal by the Government ordinarily is a valid reason that
justifies delay”).
6
Barker, 407 U.S. at 529. Cf. Loud Hawk, 474 U.S. at 316 (noting that a defendant
whose trial was delayed by his interlocutory appeal “normally should not be able . . . to
reap the reward of dismissal for failure to receive a speedy trial”).
7
I note that this case went to trial prior to the pandemic and does not involve delays
caused by the pandemic. Because of sentencing and other post-verdict delays, notice of
appeal was not filed in this case until February 24, 2020. Because of briefing delays by
both the Public Defender Agency and the State, the appellate briefing was not completed
until October 5, 2022. Oral argument was conducted on November 16, 2022 and the case
was taken under advisement by this Court at that time.
– 18 – 2772
In my view, courts should distinguish between those delays Hernandez
did not object to and those to which his counsel assented on his behalf and against his
clear wishes.8
In Vermont v. Brillon, the United States Supreme Court held that delays
sought by the defendant’s counsel weigh against the defendant’s claim of a speedy trial
violation.9 This rule flows from the ordinary principle that an “attorney is the
[defendant’s] agent when acting, or failing to act, in furtherance of the litigation,” such
that the client must assume the consequences of the attorney’s delay.10
Applying this principle in Brillon, the United States Supreme Court
reversed a state court’s decision that pretrial delay should be charged against the
government when the blame for the delay lay with court-appointed counsel for an
indigent criminal defendant.11 The Court explained that “assigned counsel generally are
not state actors for purposes of a speedy-trial claim.”12 Thus, counsel’s “inability or
unwillingness . . . to move the case forward” may not be attributed to the State simply
because the defendant is represented by public counsel.13 The court noted that the
analysis might be different if, as Brillon had argued, the delay was shown to result from
8
Cf. Barker, 407 U.S. at 529 (noting that the third Barker factor permits a trial court
“to attach a different weight to a situation in which the defendant knowingly fails to object
from a situation in which his attorney acquiesces in long delay without adequately
informing his client”).
9
Vermont v. Brillon, 556 U.S. 81, 85, 90-91 (2009).
10
Id. at 90 (quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991)).
11
Id. at 92.
12
Id.
13
Id. at 92 (quoting State v. Brillon, 955 A.2d 1108, 1121 (Vt. 2008)).
– 19 – 2772
“a systemic ‘breakdown in the public defender system.’”14 But, in that case, the
Vermont Supreme Court had “made no determination, and nothing in the record
suggest[ed], that institutional problems caused any part of the delay in Brillon’s case.”15
I do not construe Brillon to mean that delay caused by defense counsel
may be charged against the State only when there is a systemic breakdown of the public
defender system and under no other circumstances. Brillon addressed a hypothetical
systemic breakdown of the public defender system because that was an argument
presented in that case. I agree with the California and New Mexico Supreme Courts that
Brillon does not prevent a court from taking into account such matters as whether a
defense attorney’s requested continuance was contrary to the defendant’s express
objection16 or whether the court and the State failed to fulfill their obligation to monitor
and move a case forward during a period of extraordinary delay.17
On remand, the trial court should examine the record in its entirety and
determine which party, if either, must be assigned blame for the various continuances,
as well as the weight to be assigned to the delay. And in conducting this examination,
the court should be mindful of the complicated record in this case.
For example, shortly after Hernandez’s first court appearance, the trial
court issued a lengthy and robust pretrial order, and it placed Hernandez’s case on the
trailing trial calendar for the week of January 3, 2012. The pretrial order required
14
Id. at 94 (quoting Brillon, 955 A.2d at 1111).
15
Id.
16
Camacho v. Superior Court, 534 P.3d 484, 502 (Cal. 2023). Indeed, Alaska
Criminal Rule 45 indicates that the court should consider whether the defendant has agreed
to a continuance requested by their attorney when evaluating speedy trial claims. Alaska
R. Crim. P. 45(d)(2).
17
State v. Serros, 366 P.3d 1121, 1135 (N.M. 2015).
– 20 – 2772
discovery to be exchanged by November 10, 2011 and all motions to be filed by
December 20, 2011. The order stated, inter alia:
All continuances of trial at the request of the defense must
be accompanied by a written waiver signed by the defendant.
....
No extension of time for any deadline established in this
Order or at a pretrial conference, and no continuance for any
scheduled court event except pretrial conferences, including
pretrial conferences, evidentiary hearings, status hearings,
trials, and sentencing, shall be granted except upon written
motion.
....
No deviations from this Order shall be granted except upon
written motion for good cause shown.
Despite the strong language of this order, Hernandez’s trial was postponed
without a written waiver signed by Hernandez and without the filing of a written motion
dozens of times, resulting in the trial being conducted approximately seven years after
the original trial date. And on more than one occasion, a defendant who had been
waiting less time for their trial than Hernandez was nevertheless allowed to go to trial
before Hernandez, suggesting that the prosecutor and the court were not complying with
their “affirmative constitutional obligation to try the defendant in a timely manner.”18
Similarly, although the pretrial order required all motions to be filed
within sixty days of Hernandez’s arraignment (i.e., by December 20, 2011), the first
substantive defense motions were not filed until over one year after the arraignment.
After this, the parties continued filing various substantive motions until the very eve of
trial.
18
United States v. Brown, 169 F.3d 344, 349 (6th Cir. 1999). Cf. Tucker v. Wolff, 581
F.2d 235, 237 (9th Cir. 1978) (noting that the government’s claim that the delay was caused
by congested courts was undermined by the fact that defendants who were arrested later
than the appellant received their trials earlier).
– 21 – 2772
Additionally, although the pretrial order required discovery to be
completed by November 10, 2011, it was not until nearly two years later, on October 30,
2013, that the prosecutor announced that the discovery was “finally . . . complete.” Even
after the prosecutor made this assertion, Hernandez’s defense attorneys repeatedly
claimed that there were ongoing discovery issues. In fact, shortly before jury selection
for Hernandez’s trial commenced, Hernandez’s defense attorney filed a
forty-eight page motion to compel discovery.
On appeal, the State claims that Hernandez was an uncooperative and
manipulative litigant who attempted, through frivolous pro se filings, noncompliance
with court orders, and decorum breaches, to delay the trial date. While the record
supports this claim, the record does not establish the extent to which Hernandez actually
succeeded in these efforts. The trial judge assigned to Hernandez’s case was both skilled
and experienced, and the record suggests that the judge often was able to control
Hernandez’s behavior or to prevent the behavior from delaying the trial.
During the remand proceedings, the trial court should carefully consider
the record in this case. The court should determine what caused the various trial delays
and which party, if either, should be charged with the delay and how much weight
should be assigned to the various reasons for the delay.
– 22 – 2772
Judge ALLARD, concurring.
I join the majority opinion in concluding that Hernandez adequately
preserved his constitutional speedy trial claims and that a remand for evaluation of the
Barker factors is therefore required. I write separately to address an argument made by
the dissent with regards to the preservation issue.
In Barker v. Wingo, the United States Supreme Court made clear that it
was rejecting “the rule that a defendant who fails to demand a speedy trial forever
waives his right.”1 The Court asserted that “the better rule is that the defendant’s
assertion of or failure to assert his right to a speedy trial is one of the factors to be
considered in an inquiry into the deprivation of the right.”2
Based on this language, a number of courts have held that rigid forfeiture
or preservation rules have no place in the speedy trial context, and that represented
defendants should therefore be allowed to raise their constitutional speedy trial rights
on a pro se basis even if their appointed attorney refuses to do so.3 In United States v.
1
Barker v. Wingo, 407 U.S. 514, 528 (1972).
2
Id. But, as the Court further noted, “failure to assert the right will make it difficult
for a defendant to prove that he was denied a speedy trial.” Id. at 532.
3
See, e.g., United States v. Tigano, 880 F.3d 602, 617-18 (2d Cir. 2018) (holding that
“[f]ormal procedural requirements are out of place in this context” and “a defendant may
waive his statutory right to a speedy trial by failing to formally raise it, but not his
constitutional right”); United States v. Oriedo, 498 F.3d 593, 596 (7th Cir. 2007) (“[T]he
right is ill-suited to rigid forfeiture rules.”); Rowsey v. State, 188 So.3d 486, 494
(Miss. 2015) (overruling prior cases that required the defendant to obtain a ruling on their
speedy trial motion in order to preserve their rights and holding that such cases
“contravene” the United States Supreme Court’s holding in Barker and were in conflict
with the court’s own precedent); State ex rel. McKee v. Riley, 240 S.W.3d 720, 727-29
(Mo. 2007) (holding that “a represented defendant may assert his constitutional right to a
speedy trial through a pro se motion”); State v. Serros, 366 P.3d 1121, 1135-36, 1143
(N.M. 2015) (holding that a defendant’s assertion of their right to a speedy trial, even if
ignored or contravened by counsel, is a relevant fact in determining the reason for the
delay); Watson v. State, 155 N.E.3d 608, 619 (Ind. 2020) (noting that although defendant
was represented by counsel when he personally asserted his right to a speedy trial, these
– 23 – 2772
Tigano, for example, the Second Circuit held that “a defendant’s assertion of his own
right to a speedy trial — even though ignored or contravened by his counsel — is the
relevant fact for purposes of Sixth Amendment analysis.”4 This is because, as the court
observed, “the right to a speedy trial belongs to the defendant, not to defendant’s
counsel.”5
The dissent largely ignores this case law, and instead asserts that the
“correct” approach is to treat a constitutional speedy trial claim as preserved only if the
defense attorney formally raises it.6 But this approach ignores the fact that speedy trial
issues can be a source of conflict between defendants and their attorneys, particularly
publicly appointed attorneys who may be struggling with limited resources, high
caseloads, and chronic understaffing.7 Moreover, as Professor LaFave notes, “Failure
assertions put the government on notice that the defendant wanted to be tried); see also
United States v. Hall, 181 F.3d 1057, 1060-61 (9th Cir. 1999) (holding in the statutory
speedy trial context, that “where defense counsel does not assert his client’s right to a
speedy trial, a defendant may alert the court directly of his desire not to waive those
rights”); United States v. Lloyd, 125 F.3d 1263, 1267-71 (9th Cir. 1997) (treating
defendant’s own pretrial assertions of his statutory speedy trial rights as adequate to
preserve those rights on appeal even though the defendant was represented by counsel who
failed to raise the issue).
4
Tigano, 880 F.3d at 618.
5
Id.6
In support of this point, the dissent cites to a single concurrence written by a justice
of the Mississippi Supreme Court. See Rowsey, 188 So.3d at 505-06 (Pierce, J., concurring
in result only). The dissent does not acknowledge that a majority of that court rejected the
concurrence’s approach as contravening both Barker and Mississippi law. Id. at 494
(majority opinion) (rejecting the notion that a defendant can waive their right to a speedy
trial by failing to obtain a ruling on their motion for a speedy trial in the trial court); see
also id.at 503-04 (Coleman, J., concurring) (asserting that plain error review of speedy trial
claims should be reserved for situations where defendant never raises the issue at all).
7
See Riley, 240 S.W.3d at 727-28 (“The constitutional right to speedy trial is unique
in that its assertion, under some circumstances, can place the defendant in a conflicting
position with defense counsel.”); see also Vermont v. Brillon, 556 U.S. 81, 94 (2009)
– 24 – 2772
of defense counsel to raise a speedy trial objection could in some circumstances
constitute ineffective assistance of counsel, which perhaps explains why appellate
courts not infrequently assess speedy trial claims even when there was no timely motion
for dismissal below.”8
As the dissent otherwise recognizes, an indigent defendant’s complaints
about their appointed counsel constitute a well-established exception to the general rule
that trial courts have the discretion to reject pro se pleadings that are filed by a
represented defendant.9 The law is clear that the trial judge has a duty of inquiry when
an indigent defendant makes a timely and good faith motion requesting that appointed
counsel be discharged and new counsel appointed.10 Because constitutional speedy trial
concerns are often intertwined with representational issues, I believe that a similar duty
of inquiry applies to a represented defendant’s pro se invocations of their constitutional
(holding that, as a general rule, “delays caused by defense counsel are properly attributed
to the defendant” but noting an exception to the general rule for “[d]elay resulting from a
systemic ‘breakdown in the public defender system,’” which can be charged to the State).
8
5 Wayne R. LaFave et al., Criminal Procedure § 18.1(d), at 125 (4th ed. 2015).
9
See, e.g., Sheppard v. State, 17 So.3d 275, 286-87 (Fla. 2009); State v. Stuckey, 508
S.E.2d 564, 564-65 (S.C. 1998); State v. Wareham, 143 P.3d 302, 309 (Utah App. 2006);
People v. Serio, 830 N.E.2d 749, 757 (Ill. App. 2005).
10
See, e.g., Martel v. Clair, 565 U.S. 648, 664 (2012) (stating that “[a]s all Circuits
agree, courts cannot properly resolve substitution motions without probing why a
defendant wants a new lawyer” and noting that “an on-the-record inquiry into the
defendant’s allegations ‘permit[s] meaningful appellate review’ of a trial court’s exercise
of discretion” (citations omitted)); United States v. Adelzo-Gonzalez, 268 F.3d 772, 777
(9th Cir. 2001) (“Before ruling on a motion to substitute counsel due to an irreconcilable
conflict, a [trial] court must conduct ‘such necessary inquiry as might ease the defendant’s
dissatisfaction, distrust, and concern.’” (quoting United States v. Garcia, 924 F.2d 925,
926 (9th Cir. 1991))); United States v. Iles, 906 F.2d 1122, 1130 (6th Cir. 1990) (“It is
hornbook law that ‘[w]hen an indigent defendant makes a timely and good faith motion
requesting that appointed counsel be discharged and new counsel appointed, the trial court
clearly has a responsibility to determine the reasons for defendant’s dissatisfaction.’”
(citations omitted)).
– 25 – 2772
speedy trial rights when those invocations are made in good faith and the threshold for
presumptive prejudice under the first Barker factor has long since been met.11
11
Cf. Riley, 240 S.W.3d at 732-33 (Price, J., concurring) (disagreeing with the
majority opinion that trial courts should affirmatively rule on pro se speedy trial motions
by represented defendants but agreeing that such motions should not be ignored when they
“indicate the attorney-client relationship has failed,” and that in such situations “the trial
court is obligated to immediately investigate and, if necessary, remedy the situation”).
– 26 – 2772
Judge TERRELL, dissenting.
In his appeal of his conviction of multiple counts of first-degree sexual
abuse of a minor, in a case where he was represented by counsel in the trial court, Ralph
Hernandez claims that the time it took to bring his case to trial violated his constitutional
rights to a speedy trial, as guaranteed by the Sixth Amendment to the United States
Constitution and Alaska Constitution Article I, Section 11. None of his attorneys in the
trial court asserted that Hernandez’s constitutional speedy trial rights were violated, and
his appellate counsel raises these claims for the first time on appeal. As the majority
opinion recognizes, ordinarily that would mean that the speedy trial claims were not
preserved in the trial court and hence are reviewable only under the plain error standard
set out in Alaska Criminal Rule 47, as we have done in previous appeals raising speedy
trial claims.1 As I view the record, Hernandez cannot show plain error.
However, my colleagues conclude that the trial court addressed the merits
of Hernandez’s pro se invocations of his speedy trial rights and thereby preserved the
constitutional speedy trial claims. I disagree and write separately to discuss (1) the
relationship between a represented defendant’s pro se assertions of his speedy trial
rights, preservation of a constitutional speedy trial claim, and the third factor in the four-
factor speedy trial test set out in Barker v. Wingo,2 i.e., the defendant’s assertion of the
right, (2) why the trial court’s statements should not be viewed as rulings on
Hernandez’s speedy trial claims, (3) how unresolved factual disputes factor in to plain
error analysis, and (4) why Hernandez fails to show plain error. I also address the more
1
See, e.g., Tix v. State, 2011 WL 2437680, at *4 (Alaska App. June 15, 2011)
(unpublished); Sage v. State, 2002 WL 1150722, at *2 (Alaska App. May 29, 2002)
(unpublished); Azzarella v. State, 1992 WL 12153187, at *2 (Alaska App. July 15, 1992)
(unpublished). The Alaska Supreme Court has likewise applied plain error analysis to
speedy trial claims. Judd v. State, 482 P.2d 273, 280 (Alaska 1971), overruled on unrelated
grounds, Charles v. State, 326 P.3d 978 (Alaska 2014).
2
Barker v. Wingo, 407 U.S. 514, 530 (1972).
– 27 – 2772
systemic ramifications of the majority’s view that trial courts must address a
represented defendant’s pro se speedy trial motion whenever the length of time since
arrest or charging is sufficient to trigger a speedy trial analysis if a speedy trial motion
had been filed by counsel.
To begin, Alaska has long followed the rule that a “trial court is not
required to allow a defendant who is represented by counsel to file his own motions.” 3
That is, criminal defendants generally enjoy two mutually exclusive constitutional
rights with respect to representation, representation by counsel or self-representation.
Defendants do not have a constitutional right to hybrid representation, where a
defendant has counsel but can still file his own motions.4 Applying those principles,
courts nationally have repeatedly recognized that a trial court is not required to entertain
a pro se speedy trial motion brought by a represented criminal defendant.5
3
Martin v. State, 797 P.2d 1209, 1217 (Alaska App. 1990). There is one exception
that courts have recognized to this rule — represented defendants may bring pro se motions
challenging their representation. See, e.g., Sheppard v. State, 17 So.3d 275, 282-87
(Fla. 2009); People v. Stevenson, 960 N.E.2d 739, 745 (Ill. App. 2011); State v. Stuckey,
508 S.E.2d 564, 564-65 (S.C. 1998); State v. Wareham, 143 P.3d 302, 309 (Utah App.
2006). The reason for this exception is simple. The attorney’s authority to file motions
stems from their status as the defendant’s agent, and if only the attorney could file motions
to terminate the relationship or challenge their own handling of their duties, then the
defendant is potentially handicapped by a conflict of interest, being dependent on the very
person whose actions he is challenging to take the necessary action to bring the matter
before the court. Therefore, if the defendant in the course of asserting a speedy trial claim
raises claims regarding representation that warrant further review of the defendant’s
representation, the court should review that, even if it declines to review the speedy trial
claim.
4
Thomas v. State, 382 P.3d 1206, 1208 (Alaska App. 2016) (collecting cases).
5
See, e.g., United States v. Muhtorov, 20 F.4th 558, 652 n.79 (10th Cir. 2021); Gaston
v. State, 265 So.3d 387, 406-07 (Ala. Crim. App. 2018); Monts v. Lessenberry, 806 S.W.2d
379, 381 (Ark. 1991); State v. Gibbs, 758 A.2d 327, 347-48 (Conn. 2000); Ferguson v.
United States, 977 A.2d 993, 999 (D.C. 2009); Cornelius v. State, 223 So.3d 398, 401 (Fla.
App. 2017); Watson v. State, 155 N.E.3d 608, 619 (Ind. 2020); State v. Nixon, 222 So.3d
123, 133-34 (La. App. 2017); People v. Rodriguez, 741 N.E.2d 882, 884-85 (N.Y. App.
– 28 – 2772
There are good reasons to give primacy to the decisions of counsel with
respect to whether to bring a speedy trial claim.
First, though the constitutional right to a speedy trial is a right that a
defendant personally possesses, it is not one of the four rights that the defendant has the
sole authority to decide whether to exercise, i.e., “whether to plead guilty, waive a jury,
testify in his or her own behalf, or take an appeal.”6
Second, assessing whether asserting the right is in one’s best interest in
defending a case is complex and involves considerations that a person not trained in the
law may be ill-equipped to discern and to properly balance.7 My colleagues are right
that some effects of trial delay are uniquely felt and understood by defendants, such as
pretrial incarceration, but the defendant may not understand the legal considerations
regarding assertion of the right. The right is “amorphous,” and there is no fixed point
or bright-line period by which delay in bringing a case to trial may be deemed to be a
speedy trial violation.8 Delay in bringing a case to trial may have defense-favoring
effects that an incarcerated defendant may not readily perceive — loss of evidence, loss
of witnesses, and faded memories of witnesses may significantly and sometimes fatally
weaken the prosecution’s case. Delay may be necessary to ensure that defense counsel
has sufficient time to prepare to try the case, and defendants frequently fail to
understand what is required to properly prepare a case for trial or the competing
demands on the time of their attorneys.
2000); State v. Williams, 686 S.E.2d 493, 500-01 (N.C. 2009); State v. Oliveira, 127 A.3d
65, 76, 80 (R.I. 2015); Cerf v. State, 366 S.W.3d 778, 788 n.3 (Tex. App. 2012).
6
Thomas v. United States, 737 F.3d 1202, 1208 (8th Cir. 2013) (quoting Jones v.
Barnes, 463 U.S. 745, 751 (1983)).
7
Id.8
Barker v. Wingo, 407 U.S. 514, 522 (1972).
– 29 – 2772
Accordingly, the right to a speedy trial, like other constitutional rights,
may be exercised or forfeited by counsel. Courts nonetheless retain discretion to allow
a represented defendant to exercise the right via pro se motions but should utilize it
sparingly.9 Appellate courts should presume that a trial court did not permit the
defendant to exercise the right pro se unless the record clearly indicates otherwise.10
The net result of the foregoing is that a speedy trial claim, in toto, is under
ordinary preservation-of-claims principles only preserved for de novo appellate review,
in the case of a represented defendant, if counsel asserts the claim in the trial court.
Nonetheless, the Supreme Court’s discussion of the speedy trial right in
Barker v. Wingo has caused some confusion among courts as to the applicability of
ordinary preservation-of-claims rules and effect-of-representation rules to speedy trial
claims. First, in considering the inherent nature of the right, the Court rejected the
decisions of many appellate courts that had treated the right as explicitly or implicitly
waived by failure of the defendant to demand a speedy trial in the trial court.11 Second,
in setting out a standard for assessing speedy trial claims, the Court said that one of the
factors courts must consider is “the defendant’s assertion of his right.”12 Some courts
have viewed these aspects of Barker as holding that ordinary preservation rules are out
of place with respect to speedy trial claims, and that represented defendants may
effectively preserve speedy trial claims for appellate review by their own pro se filings
or statements.13
9
Johnson v. State, 885 S.E.2d 725, 736-37 (Ga. 2023) (discussing this principle with
respect to all types of claims raised in pro se motions filed by represented defendants).
10
Id.11
Barker, 407 U.S. at 523-29.
12
Id. at 530 (emphasis added).
13
See, e.g., United States v. Tigano, 880 F.3d 602, 618 (2d Cir. 2018); United States
v. Oriedo, 498 F.3d 593, 596 & n.2 (7th Cir. 2007); State ex rel. McKee v. Riley, 240
– 30 – 2772
But as other jurists have correctly recognized, the Barker Court did not
“reject[] the notion that failure to raise a speedy-trial claim in the trial court and/or
pursue the claim to a hearing before the trial court subjects the claim to plain-error
review on appeal[,]” but rather only rejected the rigid demand-waiver rule that courts
had applied in the 1960s.14 The Barker Court stated that courts may “exercise a judicial
discretion based on the circumstances, including due consideration of any applicable
formal procedural rule.”15 And the reference to the defendant’s assertion of the right
was a generic reference, that like many such references to “defendant,” sometimes
encompasses both defendant and their counsel.16 The net result is that in the case of
represented defendants, many courts recognize that counsel must raise the speedy trial
claim in the trial court to preserve it for appellate review, and the defendant’s personal
assertions of the right can then be considered in evaluating the third Barker factor.17
S.W.3d 720, 728-29 (Mo. 2007).
14
Rowsey v. State, 188 So.3d 486, 505-06 (Miss. 2015) (Pierce, J., concurring, joined
by Waller, C.J., and Randolph, P.J.).
15
Barker, 407 U.S. at 529.
16
See Davis v. State, 133 P.3d 719, 724 & n.6 (Alaska App. 2006) (noting that “the
Alaska court rules often use the term ‘defendant’ to mean, or at least to include, the defense
attorney (unless the context indicates a narrower meaning)”).
17
This can be seen in cases where defendant’s counsel raised a speedy trial claim in
the trial court, and the reviewing appellate court then looked to the defendant’s pro se
assertions of his speedy trial rights in the trial court. See, e.g., United States v. Muhtorov,
20 F.4th 558, 652 (10th Cir. 2021); State v. Ambriz, 880 S.E.2d 449, 472-73 (N.C. App.
2022). It can also be seen in the cases where the appellate court affirmed, without going
into a full-blown speedy trial analysis, trial courts’ decisions not to entertain a pro se speedy
trial motion filed by a represented defendant. See, e.g., Monts v. Lessenberry, 806 S.W.2d
379, 381-82 (Ark. 1991); State v. Joseph, 165 A.3d 241, 250-53 (Conn. App. 2017); State
v. Gibbs, 758 A.2d 327, 347-48 (Conn. 2000); Cornelius v. State, 223 So.3d 398, 401-02
(Fla. Dist. App. 2017); State v. Nixon, 222 So.3d 123, 133-34 (La. App. 2017); People v.
Rodriguez, 741 N.E.2d 882, 884-85 (N.Y. 2000); State v. Williams, 686 S.E.2d 493, 500-
01 (N.C. 2009).
– 31 – 2772
My colleagues conclude that the speedy trial issue is in any event
preserved because the trial court supposedly addressed and ruled on several of
Hernandez’s pro se invocations of his speedy trial rights. I respectfully disagree that the
trial court’s statements amounted to merits rulings on his speedy trial claim.
The first statement occurred at an ex parte July 16, 2014 representation
hearing, where Hernandez listed among his complaints the fact that none of his
attorneys had demanded a speedy trial. The trial court replied, “I find that there is
understandable delay.” At a second ex parte representation hearing on August 29, 2014,
Hernandez again expressed his desire for a speedy trial. He correctly pointed out that
the court-rule-based speedy trial right in Alaska Criminal Rule 45 and the constitutional
rights to a speedy trial are not co-extensive, such that compliance with Rule 45 does not
invariably ensure compliance with the constitutional rights. The court disagreed and
stated, “It’s preserved for appeal.” And the trial court on three separate occasions —
ex parte hearings on August 2 and November 15, 2017, and a November 15, 2018
hearing — responded to Hernandez’s requests to dismiss his case on speedy trial
grounds with the one-word response, “denied.”
Before analyzing those statements in greater detail, I first make the
following general points about when a court’s oral or written statements may amount
to a ruling on a pro se motion made by a represented defendant. I recognize, as do my
colleagues, that in some situations a simple word such as “denied” may amount to a
merits ruling on a motion or request made pro se by a represented defendant. But those
will tend to involve simple, direct requests where the preexisting record provides
sufficient information for the court to decide the matter, typically procedural matters.
Here, the issue raised pro se by the represented defendant involved a substantive legal
claim requiring a multi-factor analysis and significant development of a factual record
before the court could properly decide the issue. We should apply the presumption that
the trial court did not allow the represented defendant to litigate the issue pro se and the
– 32 – 2772
court’s response was not a merits ruling, unless the record clearly indicates that the trial
court addressed the merits.18
Here, the record does not clearly rebut that presumption. Indeed, viewing
the trial court’s statements against the larger procedural backdrop of the case highlights
why the trial court’s statements should not be viewed as merits rulings. The trial court
routinely returned all of Hernandez’s pro se filings to him with the response that it
would not consider them because he was represented by counsel. Hernandez repeatedly
sought self-representation or co-counsel status, and the trial court repeatedly and
emphatically denied these requests. The trial court’s exceptions to this rule were
specific. At an August 13, 2014 pretrial conference, Hernandez told the court that at a
July 9, 2014 hearing the court had allowed him to “speak pro per” when his lawyer was
absent, to which the court replied, “[w]ell, that day I did.” In the same exchange, the
court told Hernandez that he could file motions challenging his representation and that
the court would entertain them.19
Turning to an examination of the specific statements the majority relies
on, the first statement, “I find there’s understandable delay,” has none of the hallmarks
of a merits ruling on a speedy trial claim. Hernandez was not presenting a stand-alone
speedy trial claim but rather discussed speedy trial as part of an ineffective assistance
of counsel claim, the speedy trial analysis was not developed in any meaningful way,
and the prosecutor did not have chance to respond because the hearing was ex parte.
The court’s off-hand statement was not a considered analysis of all the Barker speedy
trial factors but rather was pertinent only to one factor. The court’s statement was a
merits ruling insofar as it addressed Hernandez’s request for new counsel, but it was
not a merits ruling as to a speedy trial claim. And the court’s statement, uttered at a
18
See Johnson v. State, 885 S.E.2d 725, 736-37 (Ga. 2023).
19
As noted, motions challenging representation are a well-recognized exception to the
no-pro-se-motions-by-represented-defendants general rule.
– 33 – 2772
July 2014 hearing, was in no way a determination as to the speedy trial claim that
Hernandez brings before us, i.e., it could not analyze the effects of four additional years
of time before his case was tried.
The court’s statement at the August 2014 hearing, that Hernandez’s claim
was “preserved for appeal,” is likewise unavailing. A trial court telling a litigant that a
claim is preserved does not mean that the claim actually is preserved. 20 Also, the trial
court’s ruling, to the degree it actually made one, was premised on the erroneous view
that complying with Criminal Rule 45 amounts to compliance with the constitutional
right to a speedy trial, and did not address the constitutional speedy trial factors.
Finally, the other three statements, i.e., the court’s use of “denied” in
response to Hernandez’s orally asserted speedy trial claims, are properly viewed as a
trial court denying the request to even consider his claims, because he was represented
by counsel and the claims were repetitive. Put another way, the court’s statements were
intended to manage an extremely difficult litigant. They are consistent with the many
other times that the trial court responded to Hernandez’s various statements and
demands at pretrial hearings and at trial with the word “denied.”
The bottom line is that none of these statements, either individually or
collectively, constituted rulings that preserved Hernandez’s current speedy trial claims.
Because Hernandez’s speedy trial claims were not properly preserved,
they are only reviewable for plain error. Plain error analysis has a significant but often
overlooked aspect relevant to speedy trial claims. While plain error is often equated
with review of legal issues, plain error claims may often be intertwined with factual
issues. Such factual issues almost invariably involve disputed facts where the trial court
has not made factual findings (since the trial court usually would have made such
findings if the court had addressed the legal claim). As federal courts have recognized,
“[w]here the [legal] error the defendant asserts on appeal depends upon a factual finding
20
See Williams v. State, 214 P.3d 391, 393 (Alaska App. 2009).
– 34 – 2772
the defendant neglected to ask the district court to make, the error cannot be ‘clear’ or
‘obvious’ unless the desired factual finding is the only one rationally supported by the
record below.”21 Speedy trial claims are heavily fact-dependent, turning on not just the
dates of events but also on inquiry into the reasons for the various periods of delay in
bringing the case to trial. The defendant who appeals bears the burden of showing a
speedy trial violation,22 trial judges are presumed to have carried out their duties
correctly,23 and moreover there is the familiar principle of appellate litigation that when
there are no factual findings on disputed issues, the record is construed in the light most
favorable to upholding the trial court.24
21
United States v. Olivier-Diaz, 13 F.3d 1, 5 (1st Cir. 1993). See also United States v.
Dunbar, 718 F.3d 1268, 1280 (10th Cir. 2013) (“When the existence of an error depends
on what the facts are . . . the error cannot be said to be ‘plain’ unless the facts are
uncontestably established, either because they are undisputed or undisputable or because
the factfinder made a proper finding of fact.”); United States v. Zhou, 838 F.3d 1007, 1011
(9th Cir. 2016) (“[A]n error that hinges on a factual dispute is not ‘obvious’ as required by
the ‘plain error’ standard.”). State courts apply this same principle. See Ailes v. Portland
Meadows, Inc., 823 P.2d 956, 959 (Or. 1991) (explaining that plain error can only be found
where the court is not required to “choose between competing [factual] inferences, and the
facts constituting the error must be irrefutable”). The supreme court obliquely made this
point in Vaska v. State, 135 P.3d 1011, 1019 (Alaska 2006), noting that an appellate court’s
authority to “affirm a trial court’s ruling on any legal theory established in the appellate
record” only applies “to issues of law that find support in settled facts” and does not apply
when the legal issue turns on “disputed or disputable issues of fact.”
22
See, e.g., Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008)
(“[D]efendant has the burden of proving the assertion of the right and showing prejudice.”
(citation omitted)).
23
See, e.g., Lindell v. Coen, 896 S.W.2d 525, 527 (Mo. App. 1995) (“We presume that
trial courts ‘faithfully and judiciously carry out their duties[.]’” (alteration in original)
(quoting Ramsey v. Grayland, 567 S.W.2d 682, 688 (Mo. App. 1978))).
24
See Shay v. State, 258 P.3d 902, 905 (Alaska App. 2011) (“In the absence of lower
court findings on disputed issues, we view the record in the light most favorable to the
lower court’s ruling.” (citing State v. Smith, 38 P.3d 1149, 1153 (Alaska 2002))).
– 35 – 2772
The net result of the foregoing is that while speedy trial claims are
technically amenable to plain error review, as a practical matter, the fact-dependent
nature of such claims often makes it difficult to conclude that an asserted speedy trial
violation amounted to plain error. Thus, courts often only engage in truncated analysis
of such claims, or exercise their discretion not to engage in plain error analysis.25
Hernandez fails to demonstrate plain error. We must balance the four
Barker factors: “[l]ength of delay, the reason for the delay, the defendant’s assertion of
his right, and prejudice to the defendant.”26 Hernandez erroneously takes the view that
if he can show that the first factor is satisfied, then courts must sua sponte examine the
other factors, and he does not analyze the other factors, leaving them to be developed
on remand. But in fact, we must look at all of the Barker factors to determine whether
the trial court committed plain error with respect to Hernandez’s speedy trial claims. I
start with the first factor, length of delay, then look at the fourth factor, prejudice to the
defendant, and last focus on the reasons for the delay and the assertion of the right.
The first factor, length of delay, is a triggering factor in the sense that a
defendant has no potentially viable speedy trial claim unless the delay at issue exceeds
a certain threshold length.27 Under federal Sixth Amendment speedy trial analysis, the
period of delay measures from the date the defendant is arrested or charged until the
start of trial.28 Here, the relevant delay — slightly over seven years — is indisputably
sufficient to warrant examination of the other speedy trial factors.29
25
See Judd v. State, 482 P.2d 273, 280 (Alaska 1971); State v. Gutierrez-Fuentes, 508
P.3d 378, 384-85 (Kan. 2022); State v. Joseph, 165 A.3d 241, 252-53 (Conn. App. 2017).
26
Barker v. Wingo, 407 U.S. 514, 530 (1972).
27
Id.28
See id. at 533-34 (considering the length of the delay between arrest and trial).
29
The majority errs in asserting that this first factor is assessed the same way — i.e.,
by looking to the total time between arrest/charging and the start of trial — under the
– 36 – 2772
The fourth Barker factor requires the court to assess any prejudice to the
defendant that was caused by the delay. Prejudice may occur in the form of pretrial
incarceration, the anxiety of facing criminal charges, and harm to the ability to defend
one’s case (i.e., loss of evidence or witnesses, or faded memories), the last of which is
the “most serious” form of prejudice.30 Hernandez does not claim that he suffered any
harm to his ability to defend his case. At oral argument, his attorney claimed that the
record provided a basis to think that a beating that Hernandez suffered in prison in 2014
affected his later behavior, leading to his obstreperous behavior which led to him not
being present at trial. But Hernandez’s trial counsel made this claim at sentencing and
the court explicitly rejected it, finding that his mid-2014 shift in behavior to non-
Alaska Constitution. Long-standing Alaska Supreme Court precedent requires courts
assessing this first factor to calculate the length of delay by subtracting the delay
attributable to the defendant from the overall period, and if the remaining figure exceeds
fourteen months, then speedy trial analysis is triggered. See Tarnef v. State, 512 P.2d 923,
933 (Alaska 1973); Rutherford v. State, 486 P.2d 946, 952 n.15 (Alaska 1971). The
majority asserts that since we adopted the Barker v. Wingo standard as the test for speedy
trial claims under Alaska Constitution Article Ⅰ, Section 11 in State v. Mouser, 806 P.2d
330, 340-41 (Alaska App. 1991), and the supreme court confirmed this in State v. Wright,
404 P.3d 166, 178 (Alaska 2017), that we now follow the federal approach as to the first
factor. But in fact, post-Mouser, we have continued to follow the Tarnef approach. See
Holt v. State, 1998 WL 80129, at *3 (Alaska App. Feb. 25, 1998) (unpublished); Alvarez
v. Ketchikan Gateway Borough, 91 P.3d 289, 294-95 & n.18 (Alaska App. 2004); Tix v.
State, 2011 WL 2437680, at *4 n.11 (Alaska App. June 15, 2011) (unpublished); Wright v.
State, 347 P.3d 1000, 1008 & n.27 (Alaska App. 2015). The supreme court in Wright said
nothing about overruling its prior precedents in this area. See Wright, 404 P.3d at 178.
Although Alaska plain error law does not preclude appellate courts from modifying the law
while a case is on appeal, and then deeming that a trial court’s error was “plain” in light of
that new law, see Johnson v. State, 328 P.3d 77, 83 & n.27 (Alaska 2014), only the supreme
court can overrule its past precedents. I believe the supreme court would likely (and
correctly) modify Alaska speedy trial law on this point if faced with the question, but it has
not done so yet, and we are not in a position to do so. In any event I find it unnecessary to
resolve the Alaska constitutional analysis as to this sub-issue because the length of delay
here is sufficient to warrant speedy trial analysis under the federal constitution.
30
Barker, 407 U.S. at 532.
– 37 – 2772
cooperation with the court and defense counsel was simply part of his pattern of
changing tactics whenever he felt he was cornered (in the sense that the case was
genuinely advancing to resolution). The record supports this conclusion and, of most
pertinence for plain error analysis, Hernandez’s contrary assertion is not the only
interpretation that the record will bear.31 In short, the record does not show that the
delay caused any harm to Hernandez’s ability to defend his case.
The Supreme Court in Doggett v. United States recognized that extreme
delay could turn into presumed prejudice that would count as prejudice for the fourth
Barker factor.32 Some courts have tried to create a taxonomy of prejudice under this
factor and set bright-line rules that a particular number of years of delay will give rise
to this sort of presumed prejudice.33 But as Justice Souter, the author of Doggett, later
explained, “Doggett did not purport to set any precise length of delay either necessary
or sufficient to give rise to such presumptive prejudice[.]”34 Doggett held that the
31
At a representation hearing on July 16, 2014, Hernandez’s counsel stated that
Hernandez had recently been beaten by other inmates in prison, causing him to be in a
coma for several days. But at that hearing and at a later August 29, 2014 representation
hearing, Hernandez made lucid and decorous statements expressing his displeasure with
his representation, statements that appear strongly inconsistent with any view that he
suffered a traumatic brain injury that substantially affected his cognition or behavior.
Hernandez did not begin to rely on sovereign-citizen-type language until proceedings later
in that year, which is suggestive of adoption of tactics learned in the prison milieu, not
brain damage.
At oral argument, Hernandez’s counsel stated that “obviously the record does not
support the nexus between the assault and his behavior change[,]” i.e., meaning that the
record did not clearly establish the nexus, while arguing that there was a sufficient basis to
think that such a connection could be made so as to justify an evidentiary hearing.
32
Doggett v. United States, 505 U.S. 647, 655 (1992).
33
See, e.g., United States v. Serna-Villareal, 352 F.3d 225, 232-33 (5th Cir. 2003)
(collecting cases, concluding that a five-year delay gives rise to presumptive prejudice).
34
Butler v. Mitchell, 815 F.3d 87, 91 (1st Cir. 2016). Justice Souter wrote Butler after
– 38 – 2772
decision whether to recognize or give any weight to such presumed prejudice did not
turn on the length of delay alone, and that it might be appropriate to give no weight to
presumed prejudice where the reasons for the delay were entirely valid, or little weight
where the defendant acquiesced in the delay.35 Courts have thus declined to find
presumed prejudice in cases where the delay was several years longer than the delay in
this case, i.e., where the delay was in the nine-to-eleven-year range.36 In this case,
Hernandez’s counsel acquiesced in several years of delay, and it is thus not apparent
that we should find presumed prejudice in the form of harm to Hernandez’s ability to
defend himself against the charges.
In any event, the Supreme Court recognized in Doggett that “presumptive
prejudice [under the fourth Barker factor] cannot alone carry a Sixth Amendment claim
without regard to the other Barker criteria,” and thus the core of the plain error analysis
in this case turns on the other two factors, the reasons for the delay and the defendant’s
assertion of his right to a speedy trial.37
Turning to the “reason for the delay” factor, the Supreme Court
summarized the law on this point in Vermont v. Brillon, stating:
Barker instructs that “different weights should be assigned
to different reasons,” and in applying Barker we have asked
“whether the government or the criminal defendant is more
to blame for th[e] delay.” Deliberate delay “to hamper the
retiring from the Supreme Court, sitting by designation on a First Circuit panel.
Hernandez’s counsel at oral argument conceded that there was no clear rule stating that
delays over a certain length of time give rise to presumptive prejudice that satisfies the
fourth Barker factor.
35
Doggett, 505 U.S. at 656-58.
36
See, e.g., United States v. Cabral, 979 F.3d 150, 165 (2d Cir. 2020) (eleven years);
United States v. Villarreal, 613 F.3d 1344, 1355 (11th Cir. 2010) (ten years); State v.
Moran, 711 N.W.2d 915, 922 (N.D. 2006) (nine years).
37
Doggett, 505 U.S. at 656.
– 39 – 2772
defense” weighs heavily against the prosecution. “[M]ore
neutral reason[s] such as negligence or overcrowded courts”
weigh less heavily “but nevertheless should be considered
since the ultimate responsibility for such circumstances must
rest with the government rather than with the defendant.”[38]
And at the other end of the spectrum, the Court has noted that “pretrial
delay is often both inevitable and wholly justifiable. The government may need time to
collect witnesses against the accused, oppose his pretrial motions, or, if he goes into
hiding, track him down. We attach great weight to such considerations.”39 As to the
defendant, “delay caused by the defense weighs against the defendant[,]” and
“[b]ecause ‘the attorney is the [defendant’s] agent when acting, or failing to act, in
furtherance of the litigation,’ delay caused by the defendant’s counsel is also charged
against the defendant.”40
Applying the law to the existing record, I first weigh the prosecution’s role
in the length of time it took to bring Hernandez to trial. At oral argument, Hernandez’s
counsel conceded that there was no basis to conclude that the State had engaged in
intentional or bad-faith delay. And nothing else in the record appears to weigh
particularly heavy against the State. The State only filed two pretrial motions, a motion
for an in camera review of a police officer’s internal affairs file and a motion to continue
the trial date due to witness unavailability, which did not significantly delay the
proceedings, taking respectively five months and four days to resolve each motion. The
State went through multiple prosecutors during the case, which added some delay. And
the State did not announce that it was “discovery complete” until a hearing on
38
Vermont v. Brillon, 556 U.S. 81, 90 (2009) (alteration in original) (citations
omitted).
39
Doggett, 505 U.S. at 656.
40
Brillon, 556 U.S. at 90-91 (first alteration added, second alteration in original)
(quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991)).
– 40 – 2772
October 30, 2013, when the case was slightly over two years old. But this delay in
getting all of the discovery out in this complex case does not on its face suggest that the
State waited until the end of that period to get the significant discovery to Hernandez’s
counsel, because counsel was able to file a motion to dismiss the indictment and a
motion to dismiss based on improper joinder during that time.41 Of the seven years and
two months that it took to get the case to trial, it appears that perhaps two and one-half
years of delay, at best, are attributable to the State, a time period that in and of itself
would not generally be viewed as a speedy trial violation in a case of this complexity.
By contrast, most of the delay in this case appears attributable to the
defense. Hernandez’s various attorneys requested over thirty continuances over the life
of this case. There are another twenty-five continuances that appear to be the joint
product of the prosecution and defense. Hernandez went through five attorneys in this
case, including taking action to force out one attorney who was ready to try the case.42
Hernandez deluged the court with pro se sovereign-citizen filings, despite the fact that
they were routinely returned to him since he was represented by counsel. Hernandez’s
41
The concurrence notes that Hernandez filed a forty-eight page motion to compel
discovery on the eve of trial. But review shows that much of it is devoted to a lengthy
recitation of the convoluted investigative and pretrial history of the case, and much of it is
devoted to a lengthy but ultimately boilerplate recitation of the law on discovery. Buried
in the motion counsel did provide a list of discovery items where she claimed discovery
was incomplete, but these matters were resolved by the start of trial.
42
The majority notes two counsel changes that are troubling and not entirely
attributable to the defense. First, the court allowed one attorney to withdraw after several
years of representation, when it was learned that the attorney’s wife represented, in a
separate case, a witness in this case, and did so without inquiring whether it was possible
for the attorney’s wife to withdraw from her representation. This was perhaps attributable
to a practice noted by Judge Harbison in Perez v. State, 521 P.3d 592, 603 (Alaska App.
2023) (Harbison, J., concurring), of courts “allow[ing] the [defense] agencies themselves
to determine when and whether conflict counsel will be appointed to represent the
defendant.” And the court later granted Hernandez’s request to discharge another attorney
even though the attorney asserted that he felt capable of representing Hernandez despite
the latter’s displeasure with him.
– 41 – 2772
counsel filed several pretrial motions that in the aggregate took approximately six and
one-half months to resolve.
Of most significance with respect to defense-caused delay, from late
August of 2014 onwards, Hernandez simply refused to cooperate with his assigned
counsel or the court. It began with a request to discharge his counsel, and ultimately
culminated in a situation where Hernandez was removed from every pretrial hearing
and trial, because he could not conform his conduct to the rules of court. When he was
brought into court at the beginning of a hearing or trial day, he would immediately
launch into the same sovereign-citizen-type diatribe on each occasion, denying that his
name was Ralph Hernandez and requesting to be addressed as the “beneficiary,” stating
he had “reserved his rights,” that the court had no jurisdiction over him, referring to the
judge as “the administrator,” demanding that the clerk of court “close his account” and
release him from custody, etc. It is difficult to demonstrate Hernandez’s level of
obstreperousness and keep this dissent relatively brief, but the judge aptly noted at
sentencing that “Mr. Hernandez is perhaps the most manipulative person I’ve ever dealt
with in the criminal justice system which I started dealing with over forty years ago.”
Balanced against this is the issue of Hernandez’s assertion of the right.
None of Hernandez’s attorneys moved to dismiss the case as untimely, either under
Criminal Rule 45 or a state or federal constitutional speedy trial claim. To be sure,
Hernandez personally vociferously asserted the right from mid-2014 on, in person at
the beginning of court hearings and in numerous pro se filings. But the assertion of the
right may be entitled to little weight when the defense or defendant engages in a course
of conduct at odds with a desire to speedily try the case, i.e., when the defendant drags
things out or is intentionally disruptive.43 That appears to be the case here.
43
See, e.g., Brillon, 556 U.S. at 93-94; United States v. Oriedo, 498 F.3d 593, 600 (7th
Cir. 2007).
– 42 – 2772
In sum, balancing all of the factors, the bulk of the delay appears to be
attributable to Hernandez, his assertions of the right to a speedy trial are entitled to little
weight in light of his simultaneous behavior obstructing progress towards trial, and he
has identified no prejudice to his ability to defend against the charges. Admittedly,
Hernandez was incarcerated during this time, but even taking that into account, it cannot
be said on this record that there is a plainly obvious violation of Hernandez’s right to a
speedy trial. Indeed, a federal magistrate judge entertaining this same speedy trial claim
asserted in a habeas corpus petition concluded that despite the “concerning” delay in
getting his case to trial, Hernandez had not shown a speedy trial violation.44 The
magistrate judge’s conclusion is not binding on this Court as a matter of law, but in my
view represents a correct and realistic assessment of Hernandez’s speedy trial claim.
This Court should affirm Hernandez’s conviction, not remand this matter for a hearing
on his speedy trial claim.
The majority, without explicitly analyzing all of the Barker factors, states
that “there are still issues to resolve regarding the underlying reasons for the delay.”
But under the standard that should be applied, plain error review, the lack of clarity is
fatal to Hernandez’s speedy trial claim. If it cannot be determined from the record that
an impermissible amount of delay is attributable to the government, then Hernandez
has not met his burden of showing a plainly obvious speedy trial violation.
The final reason that I write separately is to address concerns I have with
the systemic ramifications of the majority decision, and issues trial courts should
consider when faced with pro se speedy trial claims raised by represented defendants.
First, I find the majority’s position in this case inadvisable because it
incentivizes obstreperous behavior on the part of litigants. The unintended message the
44
See Hernandez v. Lyou, 2019 WL 13241626, at *7 (D. Alaska Aug. 29, 2019) (final
report and recommendation of United States Magistrate Judge Matthew M. Scoble). The
United States District Court dismissed the petition for failure to exhaust state remedies,
and the Ninth Circuit affirmed in Hernandez v. Lyou, 817 Fed. Appx. 498 (9th Cir. 2020).
– 43 – 2772
decision sends to criminal defendants is this: totally refuse to cooperate with the court
and your attorney, and drag things out as long as possible. Then, when it has taken more
than five years to get your case to trial, the appellate courts will conclude that you might
have a valid speedy trial claim and send your case back to the trial court on remand, at
which you may manage to convince the court to dismiss your case entirely. In his
remarks at sentencing, Judge Wolverton, an experienced jurist with over thirty years on
the bench, warned against courts being manipulated by defendants who abuse the
litigation process. He was right, and we should not reward such behavior.
Second, the majority appears to be endorsing a rule that whenever the
delay between arrest or charging and trial is sufficient to trigger a speedy trial analysis,
the trial court must engage in such an analysis when a represented defendant asserts
their speedy trial rights pro se, even when their counsel does not file a speedy trial
motion. I believe that the decision whether to consider a pro se speedy trial motion filed
by a represented defendant must remain discretionary with the trial court. Motions filed
by counsel are far more likely to have merit, and in the current posture the Alaska Court
System finds itself in, with many defendants having had their trials delayed due to the
pandemic, it seems an unwise expenditure of judicial resources to require a speedy trial
analysis whenever a represented defendant makes a pro se assertion that their speedy
trial rights have been violated. I recognize that courts have discretion to entertain such
claims, but that discretion should only be exercised when warranted.45 That said, I agree
with the majority that both trial courts and prosecutors must be more vigilant in bringing
cases to trial in a speedy fashion, and in not perpetuating the “culture of continuances”
which continues to be a key factor in pretrial delay.
45
In some cases courts may find it appropriate to delay ruling on a speedy trial claim
until after trial, when there is a more concrete record against which to assess a defendant’s
claim that the delay in trying the case prejudiced his ability to present a defense. See, e.g.,
People v. Martinez, 996 P.2d 32, 45-46 (Cal. 2000).
– 44 – 2772
Third, trial courts should take care to be clear about what they are doing
when faced with pro se speedy trial claims asserted by represented defendants. If a trial
court decides not to address such a claim on the merits, it should make clear that it is
not doing so and avoid using words which may make the defendant erroneously
conclude that their claims have been addressed on the merits.
In sum, for the reasons stated above, I conclude that Hernandez did not
preserve a federal or state constitutional speedy trial claim in the superior court, and
that such claims are thus reviewable only for plain error. Applying plain error analysis,
Hernandez’s case fails to show a plainly obvious speedy trial violation that warrants
relief. Accordingly, I would affirm the judgment of the superior court.
I respectfully dissent.
– 45 – 2772