CHRISTOPHER J. O'DELL, Appellant,
STATE OF ALASKA, Appellee
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Court of Appeals No. A-11986.
Evan Chyun, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant.
Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.[*]
Alaska Criminal Rule 53 grants broad authority to trial court judges to relax the other Rules of Criminal Procedure; Rule 53 declares that the criminal rules " may be relaxed or dispensed with by the court in any case where it shall be manifest to the court that a strict adherence to them will work injustice." The question presented in this appeal is whether a trial court can employ Criminal Rule 53 to relax the 90-day filing deadline specified in Criminal Rule 32.6(c)(2) for restitution requests that are to be litigated after the defendant's sentencing.
The defendant in this case, Christopher J. O'Dell, was convicted of theft, and he was sentenced to pay restitution to his victims in an amount to be determined later. Under these circumstances, Criminal Rule 32.6(c)(2) gave the State 90 days to file a proposed restitution order that specified (and justified) the amount of restitution, and that identified the persons who should receive it.
When the State filed the proposed restitution order seven months late, O'Dell asked the superior court to deny the State's request as untimely. But the superior court invoked Criminal Rule 53 to relax the filing deadline and grant the proposed restitution. The court concluded that the 90-day time limit should be relaxed under Rule 53 because it would be manifestly unjust to deny recovery to O'Dell's victims, given that O'Dell did not claim that he was prejudiced by the State's delay.
In this appeal, O'Dell contends that the superior court committed error when the court relied on Criminal Rule 53 to relax the filing deadline specified in Criminal Rule 32.6(c)(2). Indeed, O'Dell essentially argues that Criminal Rule 53 can never be employed to relax any deadline specified in the Criminal Rules.
O'Dell notes that another rule, Criminal Rule 40(b), specifically addresses a court's authority to extend a time limit or to ratify an untimely act in situations where an act " is required or allowed to be done at or within a specified time" by a provision of the Criminal Rules. O'Dell argues that, because Criminal Rule 40(b) directly addresses these situations, it is unlawful for a court to employ Criminal Rule 53 ( i.e., a rule of broader application) to relax a filing deadline specified in the Criminal Rules.
This argument is raised for the first time on appeal. Thus, to prevail, O'Dell must show that no reasonable judge could have thought that the law allowed the judge to relax the State's filing deadline under Criminal Rule 53.
For the reasons explained in this opinion, O'Dell has not shown this. We therefore reject O'Dell's claim that Criminal Rule 53 has no application to the filing deadline specified in Criminal Rule 32.6(c)(2).
We also reject O'Dell's alternative argument that he was prejudiced by the State's late filing because he had come to believe (during the months of delay) that even if the State ultimately filed a tardy restitution request, the superior court would deny the request because it was untimely.
Christopher O'Dell pleaded no contest to two counts of second-degree theft (for stealing property from a residence while a friend of his was house-sitting there) and one count of third-degree weapons misconduct (for being a felon in possession of a concealable firearm -- because there were four handguns among the stolen items).
At O'Dell's sentencing hearing in mid-December 2012, his attorney told the superior court that O'Dell wanted to take responsibility for his offenses, and that O'Dell was willing to accept any sentence the court imposed. A little later, when O'Dell personally addressed the court during his allocution, O'Dell declared that even though he was only one member of the group that stole the items from the residence, " [he]'d be willing to repay the entirety of the restitution owed to [the victims] if ... that would help make them forgive [him]." O'Dell also told the
court that he " [would] be willing to do whatever it takes" to prove that he was not the kind of person that his criminal ...