SIEGFRIED PEDERSEN v. STATE OF ALASKA (2012)

NOTICE Memorandum decisions of this court do not create legal precedent.  See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3).  Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.

MEMORANDUM OPINION AND JUDGMENT

A Palmer grand jury returned an indictment against Siegfried Pedersen charging him with two counts of third-degree assault and one count of second-degree misconduct involving weapons.   The judge presiding at the grand jury return proceeding noted that Pedersen was in custody on other charges.   So, instead of issuing a warrant or a summons, the judge issued an order requiring Pedersen to be transported to the Palmer court for arraignment on the indictment.

Pedersen was transported to the Palmer court and, at the arraignment, the court appointed the Public Defender Agency to represent Pedersen, set pretrial conference and trial dates, and established the amount of bail.   Following a jury trial, Pedersen was convicted of all three charges.

On appeal, Pedersen argues that the superior court lacked jurisdiction over him because he was not served with a summons or an arrest warrant.   Pedersen points out that, in a criminal case, the court may obtain jurisdiction by the service of a summons and complaint.¹  But we have also noted that, “in many ․ criminal cases, the court obtains jurisdiction over the defendant's person by literally seizing the defendant—either pursuant to a warrant as provided in Criminal Rule 4, or by taking custody of the defendant following the defendant's arrest without a warrant.” ²  And a court generally has jurisdiction to try a person who personally appears before the court, even if the defendant's presence is obtained by force.³  One Illinois case specifically notes that a court may obtain personal jurisdiction over a defendant who is already in custody by notifying the proper authorities of the time to bring the defendant to court.⁴

In this case, there was no need to issue an arrest warrant because Pedersen was already in custody.   The superior court simply ordered Pedersen to be transported to the court so that he could be arraigned on the indictment.   We conclude that the superior court obtained jurisdiction over Pedersen when he was personally transported to the court for arraignment.

Moreover, a trial court may also acquire personal jurisdiction over a party who fails to timely contest jurisdiction.⁵  In particular, a defendant may waive a defect in the service of process when he appears in court and fails to make a timely motion or objection.⁶  The defendant cannot raise the question for the first time on appeal.⁷

In this case, Pedersen was transported for personal appearance at his arraignment.   Pedersen did not object to the lack of a summons or warrant at that time.   Pedersen did not file any pretrial motions asserting that the court lacked personal jurisdiction.   Pedersen did not object to the lack of a summons or a warrant until the reply brief supporting his motion for correction of his sentence, long after his trial.   We conclude that Pedersen waived this issue by failing to raise it in a timely manner.

In his reply brief, Pedersen briefly argues that, if we conclude that the charging document was “served” at his arraignment, then his trial was ultimately held beyond the 120–day period allowed by law.⁸  But a defendant must raise this type of claim by filing a motion to dismiss prior to trial.⁹  Pedersen has waived this claim by his failure to raise it in a timely manner.

We therefore AFFIRM the superior court's judgment.

FOOTNOTES

FN1. See State v. Gottschalk, 138 P.3d 1170, 1173 (Alaska App.2006)..  FN1. See State v. Gottschalk, 138 P.3d 1170, 1173 (Alaska App.2006).

FN2. Id. (footnotes omitted);  see also Weld Cnty. Court v. Richards, 812 P.2d 650, 653 (Colo.1991) (holding that the service of a copy of the complaint on the defendant's counsel at arraignment was sufficient to confer personal jurisdiction where the defendant had been arrested without a warrant and released on an appearance bond)..  FN2. Id. (footnotes omitted);  see also Weld Cnty. Court v. Richards, 812 P.2d 650, 653 (Colo.1991) (holding that the service of a copy of the complaint on the defendant's counsel at arraignment was sufficient to confer personal jurisdiction where the defendant had been arrested without a warrant and released on an appearance bond).

FN3. See Frisbie v. Collins, 342 U.S. 519, 522 (1952);  Warmbo v. State, 578 P.2d 582, 584 (Alaska 1978)..  FN3. See Frisbie v. Collins, 342 U.S. 519, 522 (1952);  Warmbo v. State, 578 P.2d 582, 584 (Alaska 1978).

FN4. People v. Speight, 389 N.E.2d 1342, 1345–46 (Ill.App.1979)..  FN4. People v. Speight, 389 N.E.2d 1342, 1345–46 (Ill.App.1979).

FN5. See Matthews v. Matthews, 739 P.2d 1298, 1299 n.1 (Alaska 1987) (noting that the superior court obtained personal jurisdiction over the respondent in a child support proceeding when he appeared without contesting jurisdiction), superseded on other grounds by Alaska Civil Rule 90.3;  Fletcher v. State, 258 P.3d 874, 877 (Alaska App.2011) (noting that “personal jurisdiction may be acquired by waiver or consent”);  Johnson v. State, 957 N.E.2d 660, 662–63 (Ind.App.2011) (holding that “a defendant may waive the lack of personal jurisdiction if he or she responds or appears before the court and does not contest the lack of jurisdiction”)..  FN5. See Matthews v. Matthews, 739 P.2d 1298, 1299 n.1 (Alaska 1987) (noting that the superior court obtained personal jurisdiction over the respondent in a child support proceeding when he appeared without contesting jurisdiction), superseded on other grounds by Alaska Civil Rule 90.3;  Fletcher v. State, 258 P.3d 874, 877 (Alaska App.2011) (noting that “personal jurisdiction may be acquired by waiver or consent”);  Johnson v. State, 957 N.E.2d 660, 662–63 (Ind.App.2011) (holding that “a defendant may waive the lack of personal jurisdiction if he or she responds or appears before the court and does not contest the lack of jurisdiction”).

FN6. See Doe v. State, 487 P.2d 47, 55–56 (Alaska 1971) (holding that a juvenile defendant waived personal service of the summons by failure to make a timely objection);  R.L.R. v. State, 487 P.2d 27, 41 (Alaska 1971) (same)..  FN6. See Doe v. State, 487 P.2d 47, 55–56 (Alaska 1971) (holding that a juvenile defendant waived personal service of the summons by failure to make a timely objection);  R.L.R. v. State, 487 P.2d 27, 41 (Alaska 1971) (same).

FN7. Morgan v. State, 635 P.2d 472, 479 n.11 (Alaska 1981)..  FN7. Morgan v. State, 635 P.2d 472, 479 n.11 (Alaska 1981).

FN8. See Alaska R.Crim. P. 45(b), (c)(1)..  FN8. See Alaska R.Crim. P. 45(b), (c)(1).

FN9. See Alaska R.Crim. P. 45(f);  McGee v. State, 95 P.3d 945, 948 (Alaska App.2004), rev'd on other grounds, 162 P.3d 1251 (Alaska 2007)..  FN9. See Alaska R.Crim. P. 45(f);  McGee v. State, 95 P.3d 945, 948 (Alaska App.2004), rev'd on other grounds, 162 P.3d 1251 (Alaska 2007).

BOLGER, Judge.