Andrew v. StateAndrew v. State
- Reporters:
- ,
- Before:
- Bryner
Lead Opinion
OPINION
BRYNER, Chief Judge.Joseph Andrew, Jr., pled no contest to driving while intoxicated (DWI). AS 28.35.-030. Andrew reserved his right to appeal the denial of his motion to dismiss the complaint on the ground that, pursuant to
Andrew was arrested in Bethel for DWI on June 6, 1983. After several delays Andrew’s arraignment was continued to August 17. When Andrew did not appear on the 17th, attorney Karen Kirby informed the court that a man named Andrew had called her that morning from McGrath. Kirby said Andrew had not yet retained her as counsel. Andrew’s arraignment was reset for August 24. After Andrew failed to appear on August 24, he was arrested and subsequently posted bail. On August 31, Blair McCune, an attorney from Kirby’s office, filed an appearance as counsel for Andrew and entered a not guilty plea on Andrew’s behalf. Andrew was not personally present. The court set a trial date of November 14, a period of 161 days after Andrew’s arrest. No objection to the trial date was made. On November 14, McCune moved to dismiss the complaint on the ground that Andrew’s right to a speedy trial under Criminal Rule 45 had been violated. Magistrate Curda denied the motion, finding that:
[Bjased on the early involvement of Ms. Kirby’s office that under DeMille that defendant’s attorney knew or should have known ... what the four-month date was, and had some awareness of that ... on ... August 31st when the not guilty plea was entered....
The single issue in this case is the propriety of Magistrate Curda’s finding that McCune’s failure to object to the November 14, 1983, trial date constituted a waiver of Andrew’s Rule 45 right to a speedy trial.1 We conclude that Andrew could not properly be held to have waived his right to a speedy trial unless the record supported a finding that, at the time Andrew’s trial was set for November 14, 1983, his counsel, McCune, actually knew that the trial date was beyond the permissible 120-day speedy trial period. Since the trial court’s finding that Andrew waived his right to a speedy trial was apparently based on the assumption that either a knowing or negligent failure to raise the issue of speedy trial would amount to a waiver of that issue, we must remand this case for reconsideration.
Our conclusion in this case is based on DeMille v. State, 581 P.2d 675 (Alaska *1701978), and its progeny. In DeMille, the trial court mistakenly set a trial date that was beyond the allowable 120-day period. Although DeMille’s case had already been pending for a considerable time when the trial date was set, the trial court was apparently under the impression that the speedy trial period had recently commenced. DeMille’s attorney had attended the defendant’s initial arraignment and was therefore presumably aware of the commencement date of the 120-day period. Id. at 676. He nevertheless failed to object to the trial date and further failed to raise the issue of speedy trial at a subsequent omnibus hearing, which was held before the 120-day rule expired. Id. at 677 n. 6. Under these circumstances, the supreme court held that DeMille’s counsel had waived De-Mille’s right to a speedy trial under Rule 45 because he “knew or should have known” that the trial date violated Rule 45. Id. at 677.
We do not believe that DeMille can properly be read to establish a rule that the right to a speedy trial under Rule 45 will invariably be waived if the defendant’s attorney negligently fails to assert that right at the time a trial date is first set in open court. The supreme court’s holding in De-Mille considered the totality of the circumstances in that case. Id. A review of the facts in DeMille indicates that DeMille’s counsel, since he personally participated in the initial court proceedings in the case, must have had actual knowledge that the speedy trial rule began running well before the hearing at which DeMille’s trial date was set. In context, the supreme court’s conclusion that DeMille’s counsel “knew or should have known” of the Rule 45 violation reflects the court’s judgment that, at the time the superior court set the trial date, it was presumably obvious to De-Mille’s counsel that the date would violate Rule 45. Thus, in DeMille the supreme court did no more than express its willingness to infer actual knowledge from the uncontested facts presented in the record.
Subsequent decisions of the supreme court that discuss and apply DeMille provide strong support for a narrow reading of that case. In Ahmaogak v. State, 595 P.2d 985, 987 n. 3 (Alaska 1979), defendant’s attorneys acknowledged that they did not object when the court set a trial date beyond the permissible 120-day limit. However, they represented that when the court set the trial date, they had not been aware that the date would violate the speedy trial rule since they were not actually aware then that the defendant had previously been served with a summons and complaint, which commenced the running of the 120-day speedy trial period well before the hearing at which the trial date was set. In deciding Ahmaogak, the supreme court made no inquiry as to whether Ah-maogak’s attorneys had been negligent in their failure to know of the correct starting date for the 120-day rule. Instead, the court accepted without question the representations of counsel that they did not have actual knowledge of the prior summons and complaint.
In Westdahl v. State, 592 P.2d 1214, 1218 (Alaska 1979), the court came to a similar conclusion. Moreover, the interpretation given by the supreme court to De-Mille in Westdahl makes it clear that the court read DeMille to require a knowing waiver of speedy trial rights. The court in Westdahl stated:
[W]e have held that where defense counsel is present at a trial setting and is aware that the date for trial falls outside the permissible 120-day period, a failure to object constitutes a waiver.
Westdahl, 592 P.2d at 1218, citing DeMille v. State, 581 P.2d 675. The court further stated:
In order to ascertain whether a DeMille waiver occurred, it is necessary to ascertain whether the attorney who represented Westdahl at the April 22, 1977 arraignment was then aware of the earlier arrest and that such arrest was on a charge arising out of the same conduct which was the basis for the state OMYI complaint. If so, we hold that Westdahl waived the commencement of the 120-day period on February 12, 1977. If the at*171torney was not aware of the earlier arrest or was not aware it arose out of the same conduct which was the basis for the latter charge, there was no waiver, and the conviction must be reversed for violation of the provisions of Rule 45.
Westdahl v. State, 592 P.2d at 1218 (emphasis added).
Thus, although it is possible to read the supreme court’s decision in DeMille v. State as implying that waiver of a defendant’s right to a speedy trial under Rule 45 will occur if the defendant’s counsel negligently fails to assert that right when a trial date is set in open court, such an interpretation would be inconsistent with the views subsequently expressed by the court in Ah-maogak and Westdahl. DeMille, Ahmao-gak and Westdahl can be reconciled only if DeMille is read to mean that, absent extraordinary circumstances,2 a defendant’s right to a speedy trial is relinquished only when it is knowingly waived by the defendant or the defendant’s counsel. Knowledge may, of course, be inferred from the record.
In this case, Blair McCune, Andrew’s counsel at the time the November 14, 1983, trial date was set, did not personally participate in Andrew’s initial court proceedings. The question whether McCune was actually aware of a potential Rule 45 violation when the trial date was set is contested. The trial judge in this case did not resolve this dispute. Instead, the judge interpreted DeMille to establish a negligence standard for waiver of the right to a speedy trial under Rule 45. Apparently relying on a finding of negligence, the court held that Andrew’s right to receive a speedy trial had been waived. Because the trial court relied on an incorrect interpretation of DeMille in concluding that Andrew waived his right to a speedy trial, we must remand this case. On remand, the court should determine whether McCune was aware, when the court set the date for Andrew’s trial, that the trial date was beyond the permissible 120-day speedy trial period. A waiver of speedy trial may be found only if the court determines that McCune was aware of the violation at that time or that, given the circumstances actually known to McCune, the violation should have been apparent to him.
We do not imply that trial courts are without authority to compel timely objections when trial dates are set beyond the 120-day speedy trial limit. We are unaware of any reason why defense counsel could not properly be compelled, by an express pretrial order, to raise any speedy trial objections either at the time a trial date is set or within a reasonable period of time thereafter. Nothing in our decision precludes the use of such an order, which, we believe, would effectively curtail abuse of the speedy trial rule. We hold only that Criminal Rule 45 does not, in and of itself, impose a general duty requiring defense counsel to affirmatively object to a trial date in order to preserve the defendant’s speedy trial rights. Under DeMille, Ah-maogak, and Westdahl, an affirmative duty to object arises only when defense counsel is actually aware that the court has set a date beyond the 120-day speedy trial limit.3
*172The case is REMANDED for reconsideration in light of this opinion.
SINGLETON, J„ concurs.
Notes
. Unless the trial court’s finding of a waiver is upheld, no more than fifteen days of the period between Andrew’s arrest and the date of his trial could be properly excluded under the express provisions of Criminal Rule 45.
. See James v. State, 567 P.2d 298, 300 (Alaska 1977) (holding that a defendant’s right to a speedy trial under Rule 45 is irrevocably waived if no speedy trial objection is raised prior to the beginning of trial, regardless of whether good cause existed for the lack of objection); O’Dell v. Anchorage, 573 P.2d 1381, 1384 (Alaska 1978) (finding a waiver of Rule 45 where a defendant’s non-opposition to a motion for continuance filed by the state led the state and the trial court to rely on the belief that the defendant consented to a trial date beyond the 120-day speedy trial limit).
. It is arguable that DeMille, Ahmaogak, and Westdahl stand for an even narrower proposition, since all three cases deal with situations involving failure to object to a trial date set in open court. Under such circumstances, a knowing failure to object could be viewed as an affirmative acceptance of the trial date, which would estop the defense from raising subsequent objections on speedy trial grounds. Since the present case involves a trial date set in open court, we need not determine whether the supreme court’s holdings in DeMille, Ahmaogak, and Westdahl would apply to cases involving trial dates set by written order.
Concurrence Opinion
concurring.
I reluctantly join in this decision because it attempts to carry out what the supreme court apparently intended in Ahmaogak v. State, 595 P.2d 985 (Alaska 1979), and Westdahl v. State, 592 P.2d 1214 (Alaska 1979). My reservations are based upon an inability to reconcile this holding with other decisions of the Alaska Supreme Court construing Rule 45 and particularly the court’s stated preference for bright line rules. See, e.g., State v. Clouatre, 516 P.2d 1189, 1191 (Alaska 1973).
The trial court rejected Andrew’s Rule 45 challenge in reliance on DeMille v. State, 581 P.2d 675 (Alaska 1978), and applied a negligence standard to determine whether defendant’s counsel’s failure to object to setting the trial date beyond the 120-day period prescribed in Rule 45 “waived” the defendant’s right to seek dismissal based upon the rule. The DeMille court’s use of the phrase “knew or should have known” supports the trial court’s decision in this case. I agree with the majority, however, that subsequent decisions of the Alaska Supreme Court seem to indicate a departure from DeMille. The majority concludes, based on Ahmaogak and Westdahl, that acquiescence in a trial setting in violation of the rule will not forfeit a defendant’s rights under the rule unless counsel in fact knows that the trial setting is beyond the period permitted by the rule and nevertheless voluntarily and intelligently accepts the new trial date. In effect the court reads Ahmaogak and Westdahl as adopting a constitutional waiver rule for Criminal Rule 45. An acquiescence will only constitute a waiver if it is the conceptual equivalent of an implied consent to a continuance. See O’Dell v. Anchorage, 573 P.2d 1381, 1384-85 (Alaska 1978). Since extensive evidentiary hearings will be needed to determine counsel’s actual knowledge at the time he or she participates in a trial-setting conference, this portends a very poor allocation of judicial resources particularly where those resources must be allocated in rural Alaska.1
I would therefore strongly urge the Alaska Supreme Court to grant a hearing in this case and adopt either (1) a rule that counsel’s acquiescence in a trial-setting conference does not “waive” the benefits of the rule unless under the totality of the circumstances the additional time constitutes a continuance granted for good cause; or (2) a forfeiture rule. Either alternative would be better than the rule adopted in this case.
To establish a context for further analysis, it is necessary to distinguish between two related but distinct ways in which a criminal defendant may “waive,” i.e., lose the ability to assert, a constitutional or statutory right: waiver and forfeiture. Use of the term “waiver” to describe these very different concepts has led to much confusion in interpreting the reported cases. A true constitutional waiver is “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938). Such a *173waiver is difficult to establish. It cannot be inferred from a silent record and courts should indulge every reasonable presumption against it. See Barker v. Wingo, 407 U.S. 514, 526-27, 92 S.Ct. 2182, 2189-90, 33 L.Ed.2d 101, 114 (1972). Waiver must be shown in order to establish the loss of the constitutional right to counsel, Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70, 75-77 (1962); the right against self-incrimination by one in custody, Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694, 724 (1966); the right not to be placed twice in jeopardy, Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975); and the right to a speedy trial, Barker v. Wingo, 407 U.S. at 525, 92 S.Ct. at 2189; Rutherford v. State, 486 P.2d 946, 949-50 (Alaska 1971). Apparently, the majority has assumed that a rule of constitutional waiver applies to this case.2
The second concept relevant here is forfeiture,3 the loss of a right through one of the following: (1) failure to timely assert it; (2) failure to object to its violation; or (3) actions inconsistent with its assertion, such as a plea of guilty. See Lemon v. State, 654 P.2d 277, 279 (Alaska App.1982); Westen, Away From Waiver: A Rationale for Forfeiture of Constitutional Rights in Criminal Procedure, 75 Mich.L.Rev. 1214 (1977). Forfeiture is found where a defendant fails to comply with a contemporaneous objection rule. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (defendant forfeits right to challenge voluntariness of his confession by failing to move to suppress the confession pre-trial as required by court rule). Forfeiture is also the standard applied to loss of the privilege against self-incrimination in the absence of a timely assertion by those not in custody. Minn v. Murphy, — U.S.—,—, 104 S.Ct. 1136, 1142, 79 L.Ed.2d 409, 411 (1984); Garner v. United States, 424 U.S. 648, 654 and n. 9, 96 S.Ct. 1178, 1182 and n. 9, 47 L.Ed.2d 370, 377 (1976).
A forfeiture rule is generally applied where the person giving up the right, benefit or opportunity has reasonable access to counsel and a reasonable opportunity to assert the right but fails to do so. See, e.g., McCracken v. State, 685 P.2d 1275, 1281-83 (Alaska App.1984), discussing Westen & Mandell, To Talk, to Balk or to Lie: The Emerging Fifth Amendment Doctrine of the “Preferred Response, ” 19 Amer.Crim.L.Rev. 521 (1982). In order to sustain its burden to establish a forfeiture, the state need only show that the defendant had an opportunity to assert a right or object to its violation and failed to do so, or acted in a manner inconsistent with the assertion of the right. Forfeitures may be *174inferred from a silent record. See generally Saltzburg, Pleas of Guilty and the Loss of Constitutional Rights: The Current Price of Pleading Guilty, 76 Mich.L.Rev. 1265 (1978); Westen, Forfeiture By Guilty Plea — A Reply, 76 Mich.L.Rev. 1308 (1978).
At common law, a majority of state and federal courts held that a defendant’s constitutional right to speedy trial was forfeited unless demanded. See Annot., 57 A.L. R.2d 302, 306 (1958 and Supp.1984). In Barker v. Wingo, the Supreme Court held that the constitutional right to speedy trial could not be forfeited but could only be lost through a knowing and intelligent waiver. 407 U.S. at 525-26, 92 S.Ct. at 2189. See also Rutherford v. State, 486 P.2d at 949-50. The United States Supreme Court recognized, however, that through statutes or court rules, a jurisdiction could adopt specific standards to insure a more expeditious trial than the United States Constitution would require. 407 U.S. at 523, 92 S.Ct. at 2188. See State v. Clouatre, 516 P.2d at 1191 (120-day period under Alaska speedy trial rule only a basic datum, considerably longer period could elapse before trial without resultant unfairness to the accused).
Understandably, the United States Supreme Court expressed no opinion in Barker v. Wingo or in subsequent cases as to what standards should govern loss of rights derived from speedy trial statutes or court rules. The majority of jurisdictions apparently apply a forfeiture rule called the demand-waiver rule in those circumstances. See Annot. 57 A.L.R.2d at 326, Supp. at 210. A minority of jurisdictions, including Alaska, have adopted statutes or court rules based upon the American Bar Association Project on Standards for Criminal Justice, Standards Relating to Speedy Trial § 2.1, commentary at 14-16 (Approved Draft 1968).4
Under the ABA Standards, the defendant is under no obligation to demand a jury trial within the period prescribed by Rule 45. ABA Standard 2.2 (1968), 12-2.2 (1978).
[W]e feel that it is too much to expect of human nature that a defendant must demand a speedy trial_ Under our system of criminal justice, it is the prosecution which initiates a case and which has the power of going forward with it.... We, therefore, reaffirm ... that the burden is upon the state to give a speedy trial or be denied the power to prosecute.
543 P.2d at 422, quoting Rutherford v. State, 486 P.2d 946, 950 (Alaska 1971) (footnote omitted).5
In most jurisdictions with rules or statutes based on the ABA Standards, the courts have held that a mere acquiescence in the setting of a trial date beyond the period for speedy trial by, for example, failure to object, does not constitute a waiver. See, e.g., State v. Zaehringer, 306 N.W.2d 792, 795 (Iowa 1981); People v. Gallegos, 560 P.2d 93, 94 (Colo.1977); State *175v. Ansley, 349 So.2d 837, 839 (Fla.App.1977); State v. Johnson, 201 Neb. 322, 268 N.W.2d 85, 87 (1978); State v. Singer, 50 Ohio St.2d 103, 362 N.E.2d 1216, 1219 (1977); Commonwealth v. Brown, 264 Pa. Super. 127, 399 A.2d 699, 702 (1979). These decisions are based on the same principle underlying rejection of the demand-waiver rule, namely that the state, not the defendant, has the responsibility for bringing the defendant to trial within the specified period. State v. Zaehringer, 306 N.W.2d at 795.
A refusal to consider mere acquiescence to a trial date as a “waiver” also serves the purpose of protecting the integrity of the calendaring system by strictly limiting continuances. The ABA standard from which Rule 45 was derived excludes from a speedy trial calculation:
The period of delay resulting from a continuance granted at the request or with the consent of the defendant or his counsel. A defendant without counsel should not be deemed to have consented to a continuance unless he has been advised by the court of his right to a speedy trial and the effect of his consent.
ABA Standard 2.3(c) (1968). This provision in the standard on the unrepresented defendant was intended to protect the unrepresented defendant from forfeiting a prompt trial in ignorance of his rights. ABA Standard 2.3(c) commentary at 28.
Another ABA standard provided:
1.3 Continuances.
The court should grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecution or defense, but also the public interest in prompt disposition of the case.
The reasons for this standard were:
In some courts continuances in criminal cases are routinely granted upon motion of either the prosecuting attorney or the defendant if the other party consents .... The standard emphasizes that it is the responsibility of the court to make an independent determination as to whether there is in fact good cause for the continuance and to grant a continuance only for so long as is necessary under the circumstances. Implicit in the standard is the notion that the need for prompt disposition of criminal cases transcends the desires of the immediate participants in the proceedings.
ABA Standard 1.3 and commentary at 13 (Approved Draft 1968).
The Alaska Supreme Court incorporated these two standards into Rule 45 with minor modifications.6 It excludes from Rule 45 calculation:
The period of delay resulting from an adjournment or continuance granted at the timely request or with the consent of the defendant and his counsel. The court shall grant such a continuance only if it is satisfied that the postponement is in the interest of justice, taking into account the public interest in the prompt disposition of criminal offenses. A defendant without counsel shall not be deemed to have consented to a continuance unless he has been advised by the court of his right to a speedy trial under this rule and of the effect of his consent.
The court also adopted
Rulings on Motions to Dismiss or Continue. In the event the court decides any motion brought pursuant to this rule, either to continue the time for trial or to dismiss the case, the reasons underlying the decision of the court shall be set forth in full on the record.
*176It could be inferred from these rules that the trial court should not grant continuances even on stipulation unless satisfied that good cause exists. See also Criminal
Had the supreme court interpreted these rules in that way, then a defendant’s acquiescence in a trial date beyond the 120-day period, no matter how knowing, intelligent and voluntary, should not be held to waive speedy trial because a knowing acquiescence would be the legal equivalent of a stipulation to a continuance and finding such a waiver would accomplish indirectly what the rule’s restrictions on continuances preclude from being directly accomplished — stipulated continuances not supported by good cause.
Thus far, however, the supreme court has not interpreted the continuance rules in that way. In O’Dell v. Anchorage, 573 P.2d 1381 (Alaska 1978), the prosecution sought a continuance because the investigating officer was on an extended vacation. The defendant filed a notice of nonopposition, Criminal Rule 40(d), and the case was continued from August 10 to September 8. The record does not indicate that the trial court made an express finding that the reason for the continuance constituted good cause under
The trial court found that O’Dell’s non-opposition to the requested continuance was tantamount to consent, thereby waiving hisRule 45 rights for that period under 45(d)(2). O’Dell argues that since Rule 40 of the Alaska Rules of Criminal Procedure requires him to file a non-opposition, such non-opposition cannot be construed as consent. Rule 40(d) provides that whenever a motion is filed, the opposing party must serve either a non-opposition or a memorandum in opposition. O’Dell could have opposed the prosecution’s motion. He would then have had the benefit of a hearing to determine whether the prosecution’s reason for the continuance was within the statutorily excluded periods urged by the prosecution,Rule 45(d)(3)(a) and 45(d)(7). O’Dell’s non-opposition was tantamount to consent, and was relied upon by the prosecution as such. Therefore, the period between August 10, when the continuance was granted, and September 6, when Smith returned, was excluded from the 120 days computation as a stipulated continuance underRule 45(d)(2) . See Pe-terkin v. State, 543 P.2d 418 (Alaska 1975).
573 P.2d at 1384 (footnote omitted).
O’Dell is significant for three reasons: first, although the supreme court characterized defense counsel’s actions as a waiver, the court applied a forfeiture standard since it did not undertake an inquiry into O’Dell’s or his counsel’s understanding of the effect of the continuance on defendant’s speedy trial rights. Second, despite the Alaskan modification of the ABA standard in
Following its decision in O’Dell, the court held that failure to object to the setting of a trial date beyond the period for speedy trial results in a forfeiture of the right to an earlier trial. DeMille v. State, 581 P.2d 675, 677 (Alaska 1978). In so doing the court has joined with a minority of those jurisdictions which adopted the *177ABA Standards and the majority of all jurisdictions. See In re Bishop, 201 Cal.App.2d 604, 20 Cal.Rptr. 186, 189-90 (Dist.Ct.App.1962); Smith v. State, 266 Ind. 633, 366 N.E.2d 170 (1977).
The apparent forfeiture rule adopted in DeMille did not survive unscathed. See Ahmaogak v. State, 595 P.2d 985 (Alaska 1979), and Westdahl v. State, 592 P.2d 1214 (Alaska 1979). In DeMille, the court ordered a determination based on whether the attorney knew or should have known of the 120-day rule problem. 581 P.2d at 677.7 In Westdahl and Ahmaogak, however, the court seems to require a true constitutional waiver, i.e., that the attorney have actual knowledge that the trial setting would be outside the 120-day limit and in effect “consent” to a continuance. Westdahl v. State, 592 P.2d at 1218; Ahmaogak v. State, 595 P.2d at 987 n. 3. I cannot reconcile the language in DeMille with that in Westdahl and Ahmaogak. Nor can I reconcile the implication that a “knowing waiver” is required by the supreme court’s discussion of analogous issues in O’Dell, 573 P.2d at 1384, James v. State, 567 P.2d 298, 300 (Alaska 1977), and Snyder v. State, 524 P.2d 661, 664 (Alaska 1974).
The use in DeMille of the phrase “knows or should know” suggests a negligence standard. See Reynolds v. State, 655 P.2d 1313, 1316 (Alaska App.1982) (interpreting the phrase “knew or reasonably should have known” as a negligence standard). It would not be unreasonable to conclude that defense counsel is under both a duty to the defendant to protect the defendant’s rights to a prompt trial under Criminal
The adoption of a forfeiture standard would not produce the problems inherent in *178the operation of the demand-waiver rule. The demand-waiver rule was rejected as an ABA standard because:
[TJhere are a number of situations such as where the defendant is unaware of the charge or where the defendant is without counsel, in which it is unfair to require a demand.[9] Jurisdictions with a demand requirement are faced with a continuing problem of defining exceptions, a process which has not always been carried out with uniformity. More important, the demand requirement is inconsistent with the public interest in prompt dispositions of criminal cases. Consistent with the policies expressed in Part I of these standards, the trial of a criminal case should not be unreasonably delayed merely because the defendant does not think that it is in his best interests to seek prompt disposition of the charge.
Standards Relating to Speedy Trial § 2.2, commentary at 17 (1968), citing Note, The Right to a Speedy Criminal Trial, 57 Co-lum.L.Rev. 846, 854-55, 864-65 (1957).10
Since the DeMille holding only concerns whether counsel “knew or should have known” of
No criminal case should have the trial date cancelled without a new date being set. In this way the parties and their counsel will be aware of the trial as set in open court, and compliance withRule 45 can be assured.
543 P.2d at 424 (footnote omitted).
Perhaps then recognition that treating failure to object to a continuance as a “waiver” would not result in “indefinite” delay or violate the Peterkin rule motivated the supreme court to initially adopt a forfeiture standard in O’Dell, 573 P.2d at 1384-85.
Finally, a forfeiture standard is not inconsistent with Barker v. Wingo, which adopts a true waiver rule to govern loss of the constitutional right to speedy trial.11 *179The Court deemed the right fundamental, and protected it against loss without some inference of knowing conduct by the defendant. Barker v. Wingo, 407 U.S. at 525-27, 92 S.Ct. at 2189-90. Nevertheless, as the Alaska Supreme Court pointed out in Snyder v. State, 524 P.2d at 664:
[W]e consider it appropriate to mention Snyder’s contention regarding waiver of his right to speedy trial. Snyder asserts that the [express waiver ofRule 45 by his counsel] of May 26 was not legally effective since it was entered by counsel in his absence. [Cf. Lee v. State, 509 P.2d 1088, 1092 (Alaska 1973) (right to be present at trial cannot be “waived” by counsel unless defendant knowingly and intelligently joins therein); Lanier v. State, 486 P.2d 981, 988 (Alaska 1971) (right of cross-examination a trial right which counsel may waive on defendant’s behalf).] We think this contention is answered by our decision in [State v. Clouatre, 516 P.2d 1189 (Alaska 1975) ] where we said that CriminalRule 45 is only a “basic datum” and that a considerably longer period could elapse before trial without resultant unfairness or injustice to the accused. The outer limits of Alaska’s constitutional right to speedy trial are not defined byRule 45 . In short, we are of the view that our decisions pertaining to waiver of fundamental constitutional rights are inapplicable in the factual context of the instant case to the CriminalRule 45(d)(1) excluded period issue raised herein.
Finally, the other courts which permit a “waiver” based upon a defense failure to object to a trial setting beyond the prescribed period appear to utilize a forfeiture test. See, e.g,, Hodge v. State, 264 Ind. 377, 344 N.E.2d 293, 294 (1976) (failure to object or call attention to the fact that trial was scheduled beyond the statutory limit waives right to discharge; no inquiry conducted behind the “waiver” to determine if it was an informed consent).12
The supreme court should therefore consider adopting a forfeiture standard to govern determination of DeMille waivers. The defendant and his attorney have no duty to demand a trial date. There is no reason, however, to excuse them from a duty to object to a trial date set by the court.
Placing the burden on the defendant to excuse his failure to object to a trial date accords with the supreme court’s efforts to establish, to the extent possible, bright line rules for interpreting
A conclusion that an attorney may forfeit a defendant’s rights under Alaska
The supreme court should overrule De-Mille and its progeny and hold that defense acquiescence in a trial-setting does not waive the benefits of
Alternatively, if the court is satisfied that interpretation of the rule in conformity with its drafters’ intentions would unnecessarily reward attorney gamesmanship and unduly risk calendar manipulation, then the court should adopt a forfeiture standard and hold that failure to object to a trial date that violates
. Since an evidentiary record that would support an inference of negligence will always support an inference of actual knowledge, this court‘s conclusion that actual knowledge is required for an effective “waiver” will hardly resolve these particular
. An intermediate concept is a voluntary relinquishment or surrender by consent. This is the test applied to a confession which surrenders fifth amendment rights, see Henderson v. Morgan, 426 U.S. 637, 644-45, 96 S.Ct. 2253, 2257, 49 L.Ed.2d 108, 114 (1976), and a “consent” which surrenders fourth amendment rights to prevent a search, see Schneckloth v. Bustamonte, 412 U.S. 218, 222-23, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854, 860 (1973). The state has the burden of proving the voluntariness of a confession or a consent to a fourth amendment search. Precisely what the state must prove is, however, in substantial doubt. See Grano, Voluntariness, Free Will, and the Law of Confessions, 65 Virginia L.Rev. 859 (1979) (discussing voluntary confessions); 2 W. LaFave, Search & Seizure § 8.1 (1978) (discussing consent as validating a fourth amendment search). In Alaska, the state apparently sustains its burden of proving the volun-tariness of a confession if the court finds that the person confessing was of sound mind and that his statements were “not the product of duress or coercion on the part of the police.” Stobaugh v. State, 614 P.2d 767, 771 (Alaska 1980). It appears that a finding that the defendant was competent, and that his decision was not the product of duress or coercion, would also meet the state’s burden of establishing a consent to a fourth amendment search. See Phillips v. State, 625 P.2d 816, 817 (Alaska 1980); Brown v. State, 684 P.2d 874, 880 (Alaska App.1984). But see Robinson v. State, 578 P.2d 141, 143-44 (Alaska 1978) (consent cannot be inferred solely from lack of objection).
. In Lemon v. State, 654 P.2d at 279, we recognized another concept, that of “estoppel.” A finding that the opposing party may reasonably rely on the other party’s failure to object frequently supports a court’s decision to prevent him from acting inconsistently with his representation. See O’Dell v. Anchorage, 573 P.2d 1381, 1384-85 (Alaska 1978).
. The ABA Standards have been revised but the standards from which
. Nevertheless a defendant forfeits his speedy trial claim if he does not move for a dismissal of the charges prior to plea of guilty or commencement of trial. ABA Standard 4.1 (1968);
. Where a defendant is represented by counsel, the ABA standards permit either defendant or counsel to consent to a continuance.
. In its application of
. The Restatement (Second) of Torts § 12 (1965) reads:
Section 12. Reason to Know; Should Know (1) The words “reason to know” are used throughout the Restatement of this Subject to denote the fact that the actor has information from which a person of reasonable intelligence or of the superior intelligence of the actor would infer that the fact in question exists or that such a person would govern his conduct upon the assumption that such fact exists.
(2) The words “should know” are used throughout the Restatement of this Subject to denote the fact that a person of reasonable prudence and intelligence or of the superior intelligence of the actor would ascertain the fact in question in the performance of his duty to another, or would govern his conduct upon the assumption that such fact exists.
The comment to this section provides:
Both the expression “reason to know” and “should know” are used with respect to existent facts. These two phrases, however, differ in that “reason to know” implies no duty of knowledge on the part of the actor whereas “should know” implies that the actor owes another the duty of ascertaining the fact in question. “Reason to know” means that the actor has knowledge of facts from which a reasonable man of ordinary intelligence or one of the superior intelligence of the actor would either infer the existence of the fact in question or would regard its existence as so highly probable that his conduct would be predicated upon the assumption that the fact did exist. “Should know” indicates that the actor is under a duty to another to use reasonable diligence to ascertain the existence or nonexistence of the fact in question and that he would ascertain the existence thereof in the proper performance of that duty. Both the phrases “reason to know” and “should know” are used throughout the Restatement of Torts in the same sense as they are used in the Restatement of Agency. (See Restatement of Agency, Second Section 9).
Restatement (Second) of Torts § 12 comment a.
. See
. Current commentary to this standard states: “One reason for this standard’s position is that ‘[t]he strict demand-waiver rule is harsh and clearly inconsistent with the constitutional doctrine of waiver.‘” Standards Relating to Speedy Trial § 12-2.2, commentary at 18 (Approved Draft 1978), citing Erickson, The Right to a Speedy Trial: Standards for Its Implementation, 10 Hous.L.Rev. 237, 242-43 (1973). The constitutional doctrine of waiver does not, however, apply to the loss of rights under
. Barker v. Wingo was decided at a time when the Supreme Court generally applied a “waiver” standard to the loss of constitutional rights. Most of its decisions utilizing a “forfeiture” standard were decided after Barker. It is important therefore to point out that the Supreme Court’s rejection of forfeiture was somewhat qualified:
We reject, therefore, the rule that a defendant who fails to demand a speedy trial forever waives his right. This does not mean, however, that the defendant has no responsibility to assert his right. We think 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. Such a formulation avoids the rigidities of the demand-waiver rule and the resulting possible unfairness in its application. It allows the trial court to exercise a judicial discretion based on the circumstances, including due consideration of any applicable formal procedural rule. It would permit, for example, a 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 *179client, or from a situation in which no counsel is appointed. It would also allow a court to weigh the frequency and force of the objections as opposed to attaching significant weight to a purely pro forma objection.
407 U.S. at 530, 92 S.Ct. at 2192 (footnote omitted).
Where a trial is scheduled, without objection by counsel, for a date close in time to the expiration of
. A forfeiture standard is also consistent with the general approach taken by the supreme court in deciding