TIX v. STATE, A-10442 (Alaska App. 6-15-2011)

TODD TIX, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-10442.Court of Appeals of Alaska.
June 15, 2011.

Appeal from the Superior Court, Third Judicial District, Anchorage, Patrick J. McKay, Judge, Trial Court No. 3AN-07-1565 CR.

Andrew Steiner, Attorney at Law, Bend, Oregon, for the Appellant.

Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.

BOLGER, Judge.

Todd Tix shot and killed Terry Tumbleson. He was charged with first-degree murder and convicted after a jury trial, which was held almost eighteen months after his arrest. On appeal, he claims that Superior Court Judge Patrick J. McKay violated his right to a speedy trial under Alaska Criminal Rule 45 and the Alaska and United States Constitutions. Tix also claims that the judge erred when he refused toPage 2
allow Tix to represent himself at trial. We conclude that Tix’s right to a speedy trial was not violated because most of the pretrial delays were based on Tix’s pretrial motions and his implicit consent to continuances requested by his attorney. And the judge was not required to allow Tix to represent himself because his inability to conform to courtroom decorum meant that he could not properly represent himself at trial.

Tix’s speedy trial claim under Alaska Criminal Rule 45

Tix first appeared in court on February 15, 2007, the day after his arrest. Tix then appeared in court numerous times between February 2007 and July 2008 for a variety of pretrial conferences, representation hearings, a competency hearing, and an evidentiary hearing.

Tix filed a motion to dismiss the charges on June 27, 2008, based on an alleged violation of Alaska Criminal Rule 45. Judge McKay denied the motion in a short written order, ruling that “[e]ach time Rule 45 was tolled (other than during motion practice), Mr. Tix was present and either expressly or impliedly authorized his attorney’s waiver of Rule 45.”

Under Alaska Criminal Rule 45, “[a] defendant charged with a felony, a misdemeanor, or a violation shall be tried within 120 days [excluding the periods addressed in Rule 45(d).]”[fn1] Rule 45(d)(1) excludes from the 120-day calculation delays “resulting from other proceedings concerning the defendant, including but not limited to motions to dismiss or suppress, examinations and hearings on competency, the period during which the defendant is incompetent to stand trial, interlocutory appeals, and trial of other charges.”Page 3

Rule 45(d)(2) excludes time for delays “resulting from an adjournment or continuance granted at the timely request or with the consent of the defendant and the defendant’s counsel.” Under this rule, when a defense attorney requests a continuance, “this court and the Alaska Supreme Court have repeatedly stated that the trial court can rely on a defense attorney’s request for a continuance and need not seek a separate, personal consent from the defendant unless the defendant affirmatively objects to the defense attorney’s action.”[fn2]

There are three disputes about the tolling of time for trial that are critical to Tix’s argument, including continuances requested by his attorney at two pretrial conferences and his attorney’s request for Tix to undergo a competency evaluation.

The April 25, 2007, pretrial conference

On April 16, 2007, the Public Defender Agency withdrew from Tix’s case, and the court appointed the Office of Public Advocacy (OPA). Tix’s OPA attorney appeared for the first time at an April 25 pretrial conference. Tix’s trial was scheduled to commence on May 7. Tix’s attorney informed the court that he had only received the file two weeks earlier and had not reviewed all of the discovery. He therefore informed the court, “I can say that my client does not wish me to make this request, but I am requesting a one-month continuance because there is absolutely no way I can be ready [to try a first-degree murder case in two weeks.]”

Judge McKay advised Tix: “Realistically, Mr. Tix, these cases normally don’t get to trial very quickly when we’re talking about something as serious as the charge against you.” Tix replied, “I understand.” Judge McKay explained why TixPage 4
would not want to go to trial with an unprepared attorney and suggested a one-month continuance.

Tix then asked a question about an unavailable witness, and the court advised him that he could file a motion for a deposition. Judge McKay then summed up: “I’ll go ahead and continue this until May 23rd — that’ll give four weeks — and your new trial date will be the week of June 4th. We’re going to toll just twenty-eight days. That’s all we’re moving the trial. So that’s what we’ll toll.” Tix replied, “Yes, Your Honor.”

Tix now argues that because his lawyer initially indicated that Tix objected to a continuance, the court erred in tolling this twenty-eight day period. This is an overly simplistic reading of the record. Judge McKay’s advice about the complexity of a murder trial appeared to be well-taken by Tix, who stated, “I understand.” The judge could reasonably have understood this assent as Tix’s consent to a continuance. Then Judge McKay explained that the continuance would be for twenty-eight days and that Tix could request a pretrial deposition, and Tix replied, “Yes, Your Honor.” The judge could have reasonably understood this statement as Tix’s consent to the delay and his understanding about the deposition. The Rule 45 deadline was properly extended during the one-month continuance from April 25, 2007, to May 23, 2007.

The May 23, 2007, pretrial conference

At the next pretrial conference on May 23, 2007, Tix’s attorney told the court that Tix was amenable to a continuance in order to allow the defense to continue reviewing discovery and file some motions. During the conference, Tix’s attorney initially asked for a six-week continuance, and then realized three months was more realistic. But then Tix became preoccupied with submitting a letter to the court. HePage 5
would not let his lawyer see the contents of the letter, and Judge McKay refused to accept it, explaining that anything submitted to the court would become public record and could be used against him.

Judge McKay then told Tix that the court “need[s] a Rule 45 waiver of some sort” before agreeing to his attorney’s request for a continuance. The following discussion ensued:

The Court: Do you understand that [a continuance would] waive your time, Mr. Tix?

Mr. Tix: What’s that?

The Court: If [your attorney] wants three months to file the motion, that means your time is going to be waived against you.

Mr. Tix: I’ve never waived my rights on Rule 45.

The Court: Well there are certain things that waive it without — I mean like filing motions, asking the court to do things, getting extensions are going to be a Rule 45 waiver.

Mr. Tix: I understand that, Your Honor. And I’m not trying to be difficult here, but back to, you know — you know, just fundamentals, why am I even bothering being here? I mean no one wants to listen to what I say. They don’t want to take any — I mean why am I even here?

Tix thus acknowledged that certain delays caused by his attorney’s requests would extend the Rule 45 deadline. He stated that he had not previously waived his rights, but he also (according to his attorney) consented to a continuance. After Tix stated that he had never waived his Rule 45 rights, Judge McKay explained that pretrial motions and continuances extend the Rule 45 period without an affirmative waiver. TixPage 6
then replied, “I understand that,” before turning back to his preoccupation with giving the court his letter.

Tix did not press the issue any further. Instead, the court told him that a continuance would waive his Rule 45 time, and he said he understood. The judge could reasonably interpret his statement to mean that Tix agreed to the delay his attorney requested for pretrial motions.

A few minutes later, the court asked the parties if they wanted another pretrial date in early July. Tix replied, “Whatever you folks want to do.” Again, Judge McKay could have interpreted Tix’s statement to mean that he was consenting to a continuance of the trial. The Rule 45 clock deadline was thus extended for the period of the continuance from the previous trial date of June 4, 2007, to the new trial date of January 7, 2008.

The motion for a competency evaluation

The court held a representation hearing on January 4, 2008, concerning Tix’s attorney’s request to withdraw from the case. (At this point, Tix had hired private counsel.) The attorney cited two primary reasons for wanting to withdraw: Tix’s failure to pay attorney fees and expert fees, and Tix’s refusal to submit to a psychological evaluation. Tix’s attorney explained that her relationship with Tix had “completely broken down” and she simply could not afford to continue to work on the case. The court denied the motion to withdraw, unless Tix was either willing to waive Rule 45 or a new attorney could take the case to trial within the Rule 45 period. Judge McKay explained he wanted to make sure that “an offense of this magnitude [was] not going to be dismissed because we didn’t get him . . . to trial on time.”Page 7

Tix’s attorney asked the court to order Tix to undergo a psychiatric evaluation: “[It] would be completely ineffective assistance [of] counsel if I did not ask to have him examined psychiatrically and ask for . . . a competency hearing basically. If I file that, even if it’s over his protest, my understanding is that Rule 45 is tolled; is that correct?” Judge McKay replied that he believed that to be the law, but he withheld a final ruling on the issue. The judge granted a written motion for a psychiatric evaluation filed by Tix’s attorney and scheduled a competency hearing for March 12, 2008.

On appeal, Tix argues that his trial attorney deliberately asked for an evaluation as a back-door way to stop the Rule 45 clock. Tix cites an unpublished decision, Esguerra v. State, [fn3] to support the proposition that Judge McKay should have rejected the request for an evaluation since it was simply a way to obtain a continuance. Esguerra explains that an abuse of AS 12.47.100(b), which concerns court-ordered competency evaluations, “would [give defense attorneys] a potent tactical weapon for forcing continuances and mistrials in proceedings that are going badly for their clients.”[fn4]

In this case, the court did not abuse its discretion when it ordered the evaluation. Tix had shown lack of appropriate restraint, calling the court a “circus” and “bullshit.” He repeatedly demanded to speak and submit materials to the court against his attorneys’ wishes. And then Tix’s private attorney requested to withdraw, stating that their relationship had completely broken down. There was nothing in the record suggesting that Tix’s attorney requested the evaluation for anything other than a good-faith concern about Tix’s competency. The Rule 45 deadline was extended sixty-ninePage 8
days from January 16, 2008, when Tix’s attorney requested the competency evaluation, to March 12, 2008, when the court held a competency hearing.

When we take these three rulings into account, along with other periods of exclusion that Tix does not contest, then the Rule 45 deadline had not expired when Tix made his motion to dismiss. The judge properly denied Tix’s motion.

Tix’s claim based on his constitutional right to a speedytrial

Tix also argues that he was denied his constitutional right to a speedy trial under both the United States and Alaska Constitutions. Constitutional questions are questions of law to which this court applies its independent judgment.[fn5] However, if a defendant failed to raise his constitutional right to a speedy trial with the trial court, he must show plain error on appeal.[fn6]

In this case, it does not appear that Tix properly raised the issue below. Tix’s attorney never raised this constitutional issue either orally or in his motion to dismiss for violation of Rule 45. But Tix argues that he personally raised the issue of his constitutional right to a speedy trial directly with the court, thus preserving it for appeal. He notes that at a May 7, 2008, pretrial conference, he demanded, “I have a constitutional right to a speedy trial. . . . Give me my trial or release me. Now.”

We conclude that Tix failed to show any constitutional violation, even if he had properly raised this issue. When considering a constitutional speedy trial claim,Page 9
we evaluate “[the] length of delay, the reason for the delay, the defendant’s assertion of his [constitutional] right, and prejudice to the defendant.”[fn7]

The first factor — the length of delay — is the litmus test for the speedy trial evaluation.[fn8] “Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.”[fn9] The Alaska Supreme Court has held that an unexplained delay of fourteen months or longer is presumptively prejudicial, while a delay of eight months or less is presumptively non-prejudicial, absent actualprejudice.[fn10] However, delays “caused by the defendant are excluded from this calculation.”[fn11] As a threshold matter, we must therefore determine the total delay, excluding delays caused by Tix.

The total period of time between Tix’s arraignment and trial was almost eighteen months, from February 15, 2007, to August 7, 2008. However, as explained above, Tix consented to the continuances and motion practice that accounted for most of this delay. Tix does not argue that the delay prejudiced him in any way. He therefore fails to establish any obvious constitutional violation.Page 10
Tix’s request to represent himself

Tix also argues that the trial court should have allowed him to represent himself at trial. A criminal defendant has a constitutional right to proceed to trial without an attorney if he “voluntarily and intelligently elects to do so.”[fn12] However, the right of self-representation may be restricted in narrow circumstances “in order to prevent a perversion of the judicial process.”[fn13]

In McCracken v. State, the Alaska Supreme Court established a procedure for a judge considering a defendant’s request for self-representation:

The trial judge should first decide whether the defendant is “capable of presenting his [case] in a rational and coherent manner”; secondly, that the defendant “understands precisely what he is giving up by declining the assistance of counsel”; and, finally, that the defendant is “willing to conduct himself with at least a modicum of courtroom decorum.”[fn14]

This court has consistently followed McCracken, recognizing two situations in which the right of self-representation may be denied: “if the defendant is not minimally capable of presenting their case in a coherent fashion . . . [or] if the defendant is not capable of conducting their defense without being unusually disruptive.”[fn15]Page 11

Applying this standard, Judge McKay could reasonably conclude that Tix would be unusually disruptive if he was allowed to conduct his defense. At his arraignment he referred to the hearing as a “circus” and as “bullshit.” Despite several warnings, Tix continually submitted pro se filings to the court, prompting Judge McKay to reprimand him: “I don’t know how many times you need to hear this, Mr. Tix; everything you need to submit to this court has to be done through your counsel.” Tix also threatened his private attorney in the jail, prompting her to have the guards remove him from the consultation room.

Tix sent letters to the victim’s family, prompting the court to order the Department of Corrections to cut off his mail privileges. Tix then had another inmate send letters to the victim’s family, and Tix had someone outside the jail posting information about his case on a public website. When the court ordered Tix to not contact the victim’s family either directly or through anyone else, Tix became belligerent.

Judge McKay advised Tix: “Understand that you are not to have any direct or indirect contact. You’ll be violating a court order if, in fact, you have another inmate send any . . . future correspondence or you have anybody attempt to contact them in any way.” Tix responded, “What are you going to do? . . . [H]old me without trial?” Eventually, a judicial security officer ordered Tix to direct his comments to the court and to calm down, or he would have to leave the hearing.

A few moments later, Tix refused to comply with the court’s order to have the website disabled. Tix began ranting about his theory of the case. The judicial security officer again intervened, ordering Tix to sit down. Judge McKay ended the hearing by advising Tix that “next week . . . hopefully you’re going to be a little morePage 12
under control because, if you want to represent yourself, you’re going to have to be under control.”

At a hearing just a few weeks later, Tix said, “This courtroom’s a joke. . . . It’s illegal as hell.” When the court decided Tix could not represent himself and assigned him a new attorney, Tix initially refused his public defender, and then said, “I don’t give a shit. . . . This courtroom’s a joke.”

Judge McKay found that Tix was disruptive and had “shown an inability or unwillingness to comply with courtroom rules and etiquette.” The court told Tix that when “things don’t go your way, you don’t always react in a way that’s in your best interest.” We agree that the judge could reasonably conclude that Tix lacked the ability to “conform [] to the orderly procedures of the court.”[fn16] Judge McKay did not abuse his discretion when he denied Tix’s motion to represent himself.


We AFFIRM the superior court’s judgment.

[fn1] Alaska R. Crim. P. 45(b), (d).

[fn2] State v. Jeske, 823 P.2d 6, 8 (Alaska App. 1991).

Mem. Op. J. No. 4959, 2005 WL 19220 (Alaska App. Jan. 5, 2005).

[fn4] Id. at *12 (Mannheimer, J., concurring).

[fn5] State v. Anthony,810 P.2d 155, 156-57 (Alaska 1991).

[fn6] See Judd v. State, 482 P.2d 273, 280 (Alaska 1971).

[fn7] Barker v. Wingo, 407 U.S. 514, 530 (1972); State v.Mouser, 806 P.2d 330, 340 (Alaska App. 1991).

[fn8] See Barker, 407 U.S. at 530-31.

[fn9] Id. at 530.

[fn10] Alvarez v. Ketchikan Gateway Borough,91 P.3d 289, 294-95 (Alaska App. 2004) (citing Rutherford v.State, 486 P.2d 946, 951-52 (Alaska 1971); Nickerson v.State, 492 P.2d 118, 120 (Alaska 1971)).

[fn11]Id. at 295 (citing Rutherford, 486 P.2d at 952 n. 15);see also Vermont v. Brillon, 129 S. Ct. 1283, 1286 (2009).

[fn12] Falcone v. State, 227 P.3d 469, 472 (Alaska App. 2010) (quoting Faretta v. California, 422 U.S. 806, 807 (1975)).

[fn13] Id. (quoting McCracken v. State,518 P.2d 85, 91 (Alaska 1974)).

[fn14] Id. (alteration in original) (quotingMcCracken, 518 P.2d at 91-92).

[fn15] Id. (alteration in original) (quoting Oviuk v.State, 180 P.3d 388, 390 (Alaska App. 2008)); see alsoFaretta, 422 U.S. at 834 n. 46 (“[T]he trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.”).

[fn16] Falcone, 227 P.3d at 474.