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Juarez v. State (10/10/2008) ap-2186

Juarez v. State (10/10/2008) ap-2186

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts.

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us


         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


RAYMOND P. JUAREZ, )
) Court of Appeals No. A-10214
Appellant, ) Trial Court No. 3KO-07-709 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) No. 2186 October 10, 2008
)
          Appeal  from the Superior  Court, Third  Judi
          cial District, Kodiak, Joel H. Bolger, Judge.

          Appearances:   Robert R.  Polley,  Office  of
          Public  Advocacy  Contract Attorney,  Kodiak,
          for   the  Appellant.   Stephen  B.  Wallace,
          District  Attorney,  Kodiak,  and  Talis   J.
          Colberg,  Attorney General, Juneau,  for  the
          Appellee.
          
          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          COATS,  Chief Judge.

          A  defendant in a criminal case is entitled as a matter
of  right  to one peremptory challenge of a judge.1   But  to  be
timely,  the notice of change of judge must be filed within  five
days  after notice that the case has been assigned to a  specific
judge.2   In  addition, a party loses the right  to  peremptorily
challenge the judge when the party ... knowing that the judge has
been  permanently assigned to the case, participates  before  the
judge  in an omnibus hearing, any subsequent pretrial hearing,  a
          hearing under Rule 11, or the commencement of trial.3
           Raymond  P.  Juarez  peremptorily challenged  Superior
Court  Judge Joel H. Bolger.  Judge Bolger denied the  peremptory
challenge  on  the  ground that it was  untimely.   Judge  Bolger
concluded  that, because Kodiak was a single-judge  district,  it
was  obvious  that  Juarezs case was assigned  to  him  from  the
beginning  and thus more than five days had elapsed before Juarez
filed  his peremptory challenge.  In addition, Judge Bolger found
that  Juarez  had waived his right to peremptorily challenge  him
because Juarez had participated in pretrial hearings in front  of
him.   We  conclude that because Juarezs case was never expressly
assigned  to  Judge  Bolger until shortly before  the  peremptory
challenge,  Judge  Bolger erred in finding  that  the  peremptory
challenge was untimely.
          In  December of 2007, the State charged Juarez with two
misdemeanor   offenses:  assault  in  the  fourth   degree4   and
harassment  in  the  first degree.5  According  to  the  charges,
Juarez,  while  in  custody on other charges,  assaulted  another
prisoner.   Juarez  was transported to Kodiak for  a  hearing  in
front  of  Judge  Bolger  on February  27,  2008.   Judge  Bolger
conducted  a  status hearing on February 29.   At  that  hearing,
Juarezs trial was set to trail his other pending criminal  cases.
On March 5, 2008, Judge Bolger granted Juarezs request for a two-
month  continuance, setting trial call for May 7, 2008.   At  the
May  7  trial  call,  the matter was set for a status  conference
before Judge Bolger on May 9.
          At  the  status  conference on May 9,  Juarez  filed  a
consent  to  trial by magistrate and requested that he  be  tried
before  the Kodiak magistrate.  The same day, the State  filed  a
peremptory  challenge of this magistrate.  Judge  Bolger  granted
the  States peremptory challenge and for the first time expressly
assigned  the  matter to himself for trial.  On  May  12,  Juarez
filed  his  peremptory challenge of Judge Bolger.   Judge  Bolger
denied  the  peremptory  challenge on  the  ground  that  it  was
untimely.
          The  State argues that because Kodiak is a single-judge
district, Judge Bolger had been assigned to Juarezs case from the
beginning as a matter of law.  The State points out that,  unless
Juarez  consented to a trial by the magistrate, Judge Bolger  was
the only judge in Kodiak who could try the case.6  It appears  to
us that the Alaska Supreme Court rejected this argument in Morgan
v.  State.7  In that case the supreme court addressed the  States
argument  that,  since  Bethel was a single-judge  district,  the
parties  knew  that the resident judge would be the  trial  judge
unless  he  was  disqualified.8  But the court concluded  that  a
peremptory challenge of the resident judge was timely because  it
had been made within five days after express notice that the case
was  assigned  to  that  judge.9  The  court  reasoned  that  the
critical  factor in determining whether the peremptory  challenge
was  timely was not the partys knowledge that the district was  a
single-judge  district, but when the court  gave  express  notice
that  the case was assigned to that judge.10  The Morgan decision
appears  to  be  based  upon a sound policy  consideration:   the
parties  need  to  have a clear and unambiguous assignment  to  a
specific  judge in order to start the time period in  which  they
          can exercise a peremptory challenge.
           The  record  does not reflect any express notice  that
Juarezs  case  was assigned to Judge Bolger until shortly  before
Juarezs  peremptory challenge. The first formal assignment  of  a
trial judge appears to have been the assignment to the magistrate
after Juarez consented to trial by magistrate on May 9, 2008.  It
was  only  after the State peremptorily challenged the magistrate
that the case was expressly assigned to Judge Bolger.  After that
assignment,  Juarez  promptly filed his peremptory  challenge  of
Judge Bolger.  His challenge was therefore timely.
          The State also argues that Juarez waived his right to a
peremptory  challenge because he participated in hearings  before
Judge  Bolger knowing that Judge Bolger was assigned to the case.
As the State acknowledges, however, Alaska Criminal Rule 25(d)(5)
provides that a party loses the right to peremptorily challenge a
judge if knowing that the judge has been permanently assigned  to
the  case,  [he]  participates before the  judge  in  an  omnibus
hearing,  any subsequent pretrial hearing, a hearing  under  Rule
11,  or  the commencement of trial.11  Although it is  true  that
Juarez  participated in several hearings before Judge Bolger,  as
we  have previously pointed out, Juarez was not given any express
notice  that  the  case had been permanently  assigned  to  Judge
Bolger.
          We  accordingly  conclude that Judge  Bolger  erred  in
finding that Juarezs peremptory challenge was untimely.
          The  order  denying  Juarezs  peremptory  challenge  is
REVERSED.
_______________________________
     1 Alaska R. Crim. P. 25(d)(1).

     2 Alaska R. Crim. P. 25(d)(2).

3 Alaska R. Crim. P. 25(d)(5).

     4 AS 11.41.230(a)(1).

     5 AS 11.61.118(a).

     6 AS 22.15.120(a)(6).

     7 635 P.2d 472, 478 n.9 (Alaska 1981).

     8 Id. at 477.

     9 Id. at 477 n.7.

     10   Id. at 478 n.9.

     11   (emphasis added).

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