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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


STATE OF ALASKA,
                                                      Court of Appeals No. A-12295
                            Appellant,                Trial Court No. 4FA-14-318 CR

                     v.
                                                               OPINION
TIMOTHY SANTA BAKER,

                            Appellee.                   No. 2607 — June 22, 2018



              Appeal from the Superior Court, Fourth Judicial District,
              Fairbanks, Bethany S. Harbison, Judge.

              Appearances: Timothy W. Terrell, Assistant Attorney General,
              Office of Criminal Appeals, Anchorage, and Craig W. Richards,
              Attorney General, and James E. Cantor, Acting Attorney
              General, Juneau, for the Appellant. Dan S. Bair, Assistant
              Public Advocate, Appeals and Statewide Defense Section, and
              Richard Allen, Public Advocate, Anchorage, for the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
              Superior Court Judge. *

              Judge ALLARD.




   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
             This appeal requires us to construe Alaska Criminal Rule 45(c)(3) and to
clarify when criminal offenses arise from the “same criminal episode” for purposes of
determining a defendant’s speedy trial rights under Criminal Rule 45.


      Relevant facts
             Responding to a tip about drug dealing at a local gas station, an Alaska
State Trooper observed Timothy Santa Baker drive up to a gas pump and a woman get
into Baker’s vehicle. The trooper then watched as Baker drove his car across the parking
lot and parked next to another parked vehicle. Once there, Baker interacted with the
woman and another man outside of the two vehicles.
             After observing this activity, the trooper approached Baker and the two
other people and requested their identifications. In response, Baker fled the scene on
foot, abandoning his phone and several small plastic bags filled with a white powdery
substance along the way. (The police later collected the plastic bags and field-tested
their contents, which tested presumptively positive for cocaine.)
             The trooper gave immediate chase to Baker and eventually caught him.
After discovering that Baker was on bail release and that his driver’s license was
revoked, the trooper arrested Baker and charged him with the following misdemeanor
offenses: driving while license revoked, violating the conditions of his release, and
disorderly conduct. (The disorderly conduct charge was later dismissed at arraignment.)
Baker was not charged with any drug-related crimes at that time.
             Approximately three months after his arrest, Baker pleaded guilty to the
driving while license revoked charge, and the State dismissed the remaining violating
conditions of release charge. In the interim, the State obtained a search warrant for
Baker’s mobile phone, which revealed evidence that he was engaged in drug distribution.



                                         –2–                                       2607

The State also sent the white powder for further testing at the crime lab, and the lab
confirmed that the white powder was cocaine.
              Approximately four months after Baker’s initial arrest, and one month after
Baker pleaded guilty to the driving while license revoked charge, the State indicted
Baker for third-degree misconduct involving a controlled substance (possessing cocaine
with intent to distribute).1
              Approximately a year into the pretrial litigation of the drug charge, Baker’s
defense attorney moved to dismiss the indictment, arguing that the drug charge arose
from “the same criminal episode” as the driving while license revoked charge and
therefore, under Alaska Criminal Rule 45(c)(3), the speedy trial time for the drug charge
began running when the earlier charges were served on Baker.
              The superior court agreed with the defense attorney that the driving while
license revoked charge and the felony drug charge arose out of the same criminal
episode. In its written order explaining its decision, the superior court acknowledged
that there was no evidentiary or elemental overlap between the two charges. But the
court concluded that the two charges nevertheless arose from the “same criminal
episode” for purposes of calculating Baker’s speedy trial time under Criminal Rule
45(c)(3) because Baker’s act of driving across the parking lot helped facilitate the drug
deal. Based on this purported causal relationship, the court concluded that the speedy
trial time for the drug charge had already run, and the court therefore dismissed the
felony drug indictment with prejudice under Criminal Rule 45(g).
              The State now appeals that dismissal.




   1
       Former AS 11.71.030(a)(1) (2012).

                                           –3–                                       2607

       The definition of “same criminal episode” under Criminal Rule 45(c)(3)
              Alaska Criminal Rule 45 governs a defendant’s statutory right to a speedy
trial under Alaska law. Under Criminal Rule 45(b), the State is required to try a criminal
defendant within 120 days after the day that the charging document is served on the
defendant — subject to certain statutory exceptions that toll the running of the speedy
trial time period.2
              Criminal Rule 45(c)(3) addresses situations in which the State files a new
charge that arises out of “the same criminal episode” as the original charge. This
provision declares, in pertinent part,
              [t]he Rule 45 commencement date for a new charge arising
              out of the same criminal episode shall be the same as the
              commencement date for the original charge, unless the
              evidence on which the new charge is based was not available
              to the prosecution on the commencement date for the original
              charge.3

The provision further provides, that if the evidence for the new charge arising out of the
same criminal episode was not available at the time the original charges were filed, and
the State can show that it was diligent in investigating and bringing the new charge, then
the Rule 45 speedy trial time is calculated from the time the new charge was filed.4
              Criminal Rule 45(c)(3) — and, in particular, the term “same criminal
episode” — is derived from former Standard 12-2.2 of the American Bar Association’s




   2
        Alaska R. Crim. P. 45(c)(1); see also Alaska R. Crim. P. 45(e) (listing exceptions that
toll the speedy trial time).
   3
       Alaska R. Crim. P. 45(c)(3).
   4
       Id.

                                            –4–                                          2607

Standards for Criminal Justice.5 As the Commentary to that Standard explains, the
purpose of applying the same speedy trial calculation to all charges arising from the
“same criminal episode” is to ensure that the prosecution is not penalized “simply
because the defendant is being held to answer on an unrelated offense,” while the
defendant does not lose the benefit of a speedy trial “simply because the offense charged
... differs somewhat from the offense for which the defendant is being held to answer.”6
As the Commentary also clarifies, the speedy trial protection granted to charges “arising
out of the same criminal episode” is distinct from the due process protections that exist
to protect defendants from the more general problem of pre-accusation prosecutorial
delay.7
              The former ABA standard refers to charges “based on the same conduct or
arising from the same criminal episode.”8 The Commentary explains that the term “same


   5
       See 2 ABA Standards for Criminal Justice § 12-2.2(a) (2d ed. 1982); Peterson v. State,
562 P.2d 1350, 1357-58 (Alaska 1977) (explaining that this portion of Rule 45 is derived
from the ABA standards and interpreting the Alaska rule accordingly).
       We note that the ABA significantly revised its speedy trial standards in 2006 and the
new speedy trial standards are more flexible than the previous standards and provide the trial
courts with more discretion to set shorter and longer speedy trial times as the specific
circumstances of a case may require. See ABA Standards for Criminal Justice, Speedy Trial
and Timely Resolution of Criminal Cases, § 12-2.2 (3d ed. 2006).
   6
       2 ABA Standards for Criminal Justice § 12-2.2(a) cmt. at 12-21 (2d ed. 1982).
   7
      Id. at 12-23-25; see also State v. Gonzales, 156 P.3d 407, 412 (Alaska 2007)
(recognizing the due process claim of pre-accusation delay under the Alaska Constitution);
United States v. Marion, 404 U.S. 307 (1971).
   8
       2 ABA Standards for Criminal Justice § 12-2.2(a) (2d ed. 1982). We note that the
predecessor to the current Rule 45(c)(3) was also based on the ABA standards, but it referred
to new charges “arising out of the same conduct.” In Peterson v. State, the Alaska Supreme
Court held that Rule 45(c)(3) should be read consistently with the ABA standard that it was
                                                                              (continued...)

                                            –5–                                         2607

conduct” covers “those cases where several offenses arise out of the same act, [such] as
where a defendant recklessly operates an automobile and kills two persons.”9 Likewise,
the term “same criminal episode” covers those situations involving multiple but related
criminal acts such as “the simultaneous robbery of seven individuals,” “the killing of
several people with successive shots from a gun,” “the successive burning of three pieces
of property,” or “such contemporaneous and related crimes as burglary and larceny, or
kidnapping and robbery.”10
              Alaska appellate court decisions have also provided further guidance on
when criminal offenses should be considered as “arising from the same criminal episode”
for purposes of the speedy trial calculation under Rule 45(c)(3).11 In State v. Dunten, this


   8
       (...continued)
modeled on and that the term “same conduct” therefore also included the concept of “same
criminal episode.” Peterson, 562 P.2d at 1356-58 (citing former Alaska R. Crim. P.
45(c)(1)). In 1993, the term “same criminal episode” was officially substituted for “same
conduct” in Rule 45(c)(1) and paragraph (c)(1) was renumbered as (c)(3). Supreme Court
Order No. 1127 (1993).
   9
        2 ABA Standards for Criminal Justice § 12-2.2(a) cmt. at 12-21 (2d ed. 1982).
   10
        Id.
   11
        See, e.g., Westdahl v. State, 592 P.2d 1214, 1216 (Alaska 1979) (concluding, under
former version of Rule 45, that speedy trial time on drunk driving charge began running
when defendant was arrested for violating an ordinance that prohibited intoxicated persons
from possessing open containers of alcohol while driving because the two charges shared
similar elements and involved the same evidence); Peterson, 562 P.2d at 1358 (concluding
that the successive killing of four individuals arose out of same criminal episode for purposes
of calculating defendant’s speedy trial time); Koch v. State, 653 P.2d 664, 668 (Alaska App.
1982) (concluding that speedy trial time for negligent homicide charge began running when
the State charged defendant with traffic infraction for following too closely because the
negligent homicide charge was predicated entirely on the defendant’s conduct in allegedly
following too closely); State v. Williams, 653 P.2d 1067, 1070 (Alaska App. 1982)
                                                                                 (continued...)

                                            –6–                                          2607

Court summarized the prior Alaska case law and identified the governing principle as
follows:
              No Alaska speedy trial case has found separate charges to
              arise from the same criminal episode merely because they
              occurred simultaneously or at closely related times. In each
              case, some additional similarity between the initial and later
              charges — either a causal link or a close evidentiary or
              elemental “nexus” — has justified the finding of a single
              criminal episode.12
Thus, under Alaska law, criminal offenses that occur within close temporal proximity to
one another should be considered as arising out of the “same criminal episode” for
purposes of calculating the defendant’s speedy trial time only when there is a close
elemental or evidentiary overlap between the charged offenses or when there is a causal
link that directly connects the commission of one criminal offense to the other offense
— such as exists in the “contemporaneous and related crimes of burglary and larceny,
kidnapping and robbery” mentioned in the ABA commentary. Other jurisdictions with
speedy trial rules modeled on the same ABA standard use similar formulations.13




   11
        (...continued)
(concluding that the defendant’s arrest for murder also commenced the running of the speedy
trial time for subsequently filed evidence tampering charges because a clear causal link
existed between William’s commission of the murder and his attempt to dispose of the body).
   12
        State v. Dunten, 785 P.2d 907, 909 (Alaska App. 1990).
   13
        See, e.g., State v. White, 990 P.2d 90, 97-98 (Haw. 1999) (defining “same criminal
episode” as requiring a close relationship between the two offenses such that “a complete
account of one charge cannot be related without referring to details of the other charge”);
State v. Kindsvogel, 69 P.3d 870, 873 (Wash. 2003) (concluding that the offenses must share
“close logical and temporal proximity” and applying the same definition of “same criminal
episode” that applies in the mandatory joinder context).

                                           –7–                                       2607

                  After articulating this standard in Dunten, we then applied it to the facts of
that case.14 Dunten involved a woman who shot her husband following an argument in
a parked car.15 Prior to the shooting and immediately after the shooting, Dunten (who
was intoxicated) drove the car.16 Dunten was arrested and prosecuted for driving while
under the influence.17 However, the State did not charge Dunten with the murder of her
husband until eighteen months later.18 Dunten moved to dismiss the murder indictment
under Criminal Rule 45, arguing that the State’s delay in bringing that charge violated
her speedy trial rights under that rule.19 Dunten argued that the driving while under the
influence charge and the murder charge both arose out of the “same criminal episode”
and therefore the speedy trial time for the murder charge began running when the DUI
charge was served on Dunten.20 The trial court agreed with Dunten that the two offenses
arose out of the same criminal episode and the court dismissed the murder indictment
with prejudice under Criminal Rule 45(g).21
                  We reversed this ruling on appeal, concluding that the two charges —
although temporally linked — were not sufficiently related to qualify as charges “arising
from the same criminal episode” for purposes of calculating Dunten’s speedy trial time



   14
        Dunten, 785 P.2d at 907-08, 911.
   15
        Id. at 907.
   16
        Id.
   17
        Id. at 907-08.
   18
        Id. at 908.
   19
        Id.
   20
        See id.
   21
        Id. at 908-09.

                                               –8–                                        2607

under Rule 45(c)(3).22 As we explained, the two charges were not causally connected
— that is, Dunten’s driving while under the influence was not the cause of her husband’s
death.23 The two charges also did not share any elements in common, and proof of each
crime would require an entirely different set of evidence.24
               We acknowledged that the crimes could be viewed as interrelated because
evidence of Dunten’s intoxication was likely to play a role in both prosecutions.25 But
we emphasized that intoxication is not an essential element of second-degree murder, and
that Dunten’s separate criminal acts of driving while under the influence otherwise had
“virtually no bearing on the murder charge.”26 We therefore concluded that because the
connection between the two offenses was primarily temporal and incidental, the State
was entitled to prosecute these independent criminal offenses separately without
implicating Dunten’s speedy trial rights under Criminal Rule 45.27
               We reached a similar conclusion in a more recent case, Pitka v. State.28
Pitka involved a defendant who was arrested after for criminal trespass and criminal
mischief.29 During Pitka’s arrest, the police discovered cocaine in Pitka’s pocket.30


   22
        Id. at 911.
   23
        Id.
   24
        Id.
   25
        Id.
   26
        Id. at 911.
   27
        Id..
   28
        Pitka v. State, 19 P.3d 604 (Alaska App. 2001).
   29
        Id. at 605.
   30
        Id.

                                           –9–                                     2607

However, the State did not indict Pitka for his possession of cocaine until six months
after it prosecuted Pitka for the criminal trespass and criminal mischief offenses.31 Pitka
moved to dismiss the later-filed drug charge, asserting that all three offenses arose from
“the same criminal episode” and that his speedy trial time on the drug charge had
therefore already run under Criminal Rule 45(c)(3).32 The superior court rejected this
claim, and denied Pitka’s motion to dismiss.33
               We affirmed the superior court’s ruling on appeal.34 In our decision, we
acknowledged that Pitka’s possession of cocaine could have “some arguable relevance”
to his criminal acts of trespass and criminal mischief in the sense that consumption of
that cocaine could have been part of the reason why he committed those criminal acts.35
We also acknowledged Pitka’s argument that he was in possession of the cocaine when
he committed the criminal trespass and criminal mischief.36 But we explained that this
arguable relevancy did not mean that the drug charge should therefore be viewed as
“arising out of the same criminal episode” as the other criminal charges.37 Nor did it
mean that the same speedy trial calculation should govern the prosecution of all three
offenses.38 As we pointed out, the drug charge shared no elements with the other



   31
        Id.
   32
        Id. at 607.
   33
        Id.
   34
        Id.
   35
        Id.
   36
        Id.
   37
        Id.
   38
        Id.

                                          – 10 –                                     2607

charges, and the evidence needed to prove the drug charge was entirely different from
the evidence used to prove the other charges.39 There was also no direct causal link
between the drug offense and the other two offenses.40
               In explaining the lack of causal relationship, we noted that “Pitka has not
suggested that his acts of trespass and criminal mischief were motivated by a desire to
obtain or sell cocaine, or that these acts were related in any other way.”41 As we have
acknowledged elsewhere, this dictum has sometimes been misconstrued as suggesting
that any articulable relationship between two criminal acts is sufficient to make them part
of the same criminal episode for purposes of Criminal Rule 45(c)(3).42 But our intent
was only to highlight the absence of any direct causal relationship between the criminal
offenses at issue in Pitka and to distinguish those crimes from “such contemporaneous
and related crimes as burglary and larceny, or robbery and kidnapping” referred to in the
relevant ABA Commentary.43
               Thus, because we concluded that there was an insufficient causal,
evidentiary, or elemental nexus connecting Pitka’s drug offense to his commission of the
other offenses, we concluded that the felony drug charge did not arise out of the same
criminal episode as the earlier charges, and the trial court properly ruled that the State’s




   39
        See id.

   40
        See id.

   41
        Id.

   42
      See State v. Sheldon, 2018 WL 566293, at *3 (Alaska App. Jan. 24, 2018)

(unpublished).
   43
        2 ABA Standards for Criminal Justice § 12-2.2(a) cmt. at 12-21 (2d ed. 1982).

                                          – 11 –                                      2607

prosecution of Pitka for the felony drug offense was governed by its own independent
Rule 45 calculation.44
               We come to the same conclusion in the present case. As previously
explained, this case began as an investigation into suspected illegal drug activity. But,
during the course of that investigation, the trooper also became aware that Baker’s
license was revoked and that he was on bail release. Baker was subsequently arrested
and prosecuted for driving while license revoked and violating the conditions of his
release. Four months later, after that prosecution was resolved, the State separately
indicted Baker for third-degree misconduct involving a controlled substance. At Baker’s
request, the superior court dismissed this indictment with prejudice under Criminal Rule
45(g) on the ground that the drug charge arose from “the same criminal episode” as the
driving while license revoked charge because Baker’s act of driving across the parking
lot had facilitated the underlying drug transaction at issue in the felony drug prosecution.
               This reasoning is inconsistent with our holdings in Pitka and Dunten. As
the superior court otherwise recognized, the two prosecutions involved no close
evidentiary or elemental overlap. The two offenses shared no elements and the evidence
required to prove each offense was entirely different. Moreover, like in Pitka and
Dunten, the primary relationship between the two offenses was their simultaneity.
Although Baker may have driven his car as part of the drug transaction witnessed by the
trooper, his driving was not an essential part of that drug transaction. As the State points
out, it was not necessary for Baker to drive his car across the parking lot in order to
facilitate the ongoing drug transaction. Baker could just as easily have walked across the
parking lot or he could have ridden as a passenger with someone else driving.




   44
        Pitka, 19 P.3d at 605.

                                          – 12 –                                      2607

              Moreover, Baker’s act of driving was not itself a criminal act. What made
Baker’s act of driving a separate chargeable criminal offense was the fact that his driver’s
license was revoked — a circumstance entirely divorced from the drug transaction taking
place at the same time. The fact that Baker drove across the parking lot might be
“relevant” to the felony drug prosecution in the sense that it might be included as part of
the sequence of events witnessed by the trooper. But the fact that Baker’s driver’s
license was revoked and that this act of driving was itself independently unlawful would
not be relevant — if it was even mentioned at all.
              As our holdings in Pitka and Dunten make clear, offenses arise from the
“same criminal episode” for purposes of triggering the safeguards of Rule 45(c)(3) only
when their connection is more than merely temporal and incidental.45 Here, Baker
happened to commit the crime of driving while license revoked at the same time that the
police were investigating what appeared to be Baker’s involvement in illegal drug
activity. Because there was no close evidentiary, elemental, or causal nexus between
what was otherwise two separate criminal acts, the State was entitled to prosecute Baker
for the independent crime of driving while license revoked (and the related crime of
violating conditions of release) without triggering Baker’s right to a speedy trial on the
separate drug offense. It was therefore error for the superior court to dismiss the
indictment for third-degree misconduct involving a controlled substance with prejudice
under Rule 45(g).


        Conclusion
              We REVERSE the judgment of the superior court, and we reinstate the
indictment against Baker.


   45
        See Pitka, 19 P.3d at 607; Dunten, 785 P.2d at 909.

                                          – 13 –                                      2607