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Akers v. State (12/23/2016) ap-2529

Akers v. State (12/23/2016) ap-2529

                                                                                                    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  

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                                     IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                                              



BAMBI  AKERS,  

                                                                                                                                                                                      

                                                                                                                                 Court of Appeals No. A-12009  

                                                                                                                                                                                                      

                                                                    Petitioner,                                                Trial Court No. 4EM-12-148 CR  



                                                   v.  

                                                                                                                                                  O  P  I  N  I  O  N  

                                                                                                                                                                                      

STATE  OF  ALASKA,  



                                                                    Respondent.                                                No. 2529 - December 23, 2016  

                                                                                                                                                                                                   



                                  Petition for  Review from the  District  Court,  Fourth Judicial  

                                                                                                                                                                      

                                  District, Emmonak, Nathaniel Peters, Judge.  

                                                                                                                             



                                  Appearances:                         Renee  McFarland,  Assistant  Public  Defender,  

                                                                                                                                                                  

                                  and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for   the  

                                                                                                                                                                                

                                  Petitioner.                    Donald Soderstrom,  Assistant  Attorney General,  

                                                                                                                                                                     

                                  Office of Criminal Appeals, Anchorage, and Craig W. Richards,  

                                                                                                                                                                                            

                                  Attorney General, Juneau, for the Respondent.  

                                                                                                                                                   



                                  Before:  Mannheimer, Chief Judge, and Allard, Judge.  

                                                                                                                                                                    



                                  Judge MANNHEIMER.  

                                                  



                                  The Petitioner, Bambi Akers, is facing a probation revocation proceeding                                                                                      



in   the   district   court.     Over   Akers's   objection,   this   revocation   proceeding has                                                                                                             been  



assigned to a magistrate judge.                                                Akers argues that she has a statutory right to insist that                                                                         



a district court judge conduct the revocation proceeding.                                                        


----------------------- Page 2-----------------------

                                                                                                                               

                     To resolve this question, we must interpret AS 22.15.120 -the statute that  



                                                                  

defines the authority of magistrate judges.  



                                                                                                                     

                     No provision of AS 22.15.120 expressly deals with probation revocation  



                                                                                                                                 

proceedings.  However, three subsections of the statute - (a)(5), (a)(6), and (a)(7) -  



                                                                                                                          

potentially encompass probation revocation proceedings in misdemeanor cases.  



                                                                                                                     

                     In certain instances, a magistrate judge has plenary authority to adjudicate  



                                                                                                                               

misdemeanors.             Subsection (a)(5) of the statute declares that magistrate judges  are  



                                                                                                                                  

empowered  to  "give  judgment  of  conviction"  in  all  misdemeanor  cases  where  a  



                                                                                                                     

defendant pleads guilty or no contest.   And subsection (a)(7) of the statute authorizes  



                                                                                                                                

magistrate judges to "hear, try, and enter judgments" in limited categories of cases -  



                                                                                                                          

cases where the defendant is charged with committing a "minor offense" (a term defined  



                                                                                                     

in subsection (c) of the statute) or with violating a city or borough ordinance.  



                                                                                                                             

                     But subsection (a)(6) of the statute - the provision that covers all other  



                                                                                                                             

misdemeanor cases - states that a magistrate judge is empowered to "hear, try, and enter  



                                                                                                                     

judgments" in these cases only "if the defendant consents in writing that the magistrate  



                               

may try the case".  



                                                                                                                     

                     The question we must answer is whether this last provision of subsection  



                                                                                                                                      

(a)(6) - the requirement of a defendant's affirmative consent - applies to Akers's case.  



                                                                                                                               

Before we present our analysis of this  question, we must describe the history of this  



                

litigation.  



                                                               - 2 -                                                          2529
  


----------------------- Page 3-----------------------

            Underlying facts   



                                                                                                                                    1   She was  

                       In 2012, Akers was charged with driving under the influence.                                                             



arraigned on this charge in front of Superior Court Judge Dwayne W. McConnell (sitting  

                                                                                                                                            

                                           2   At her arraignment, Akers reached a plea agreement with the  

as a district court judge).  

                                                                                                                                                  



State; Judge McConnell accepted her guilty plea and then sentenced her in accordance  

                                                                                                                                    



with the terms of the plea bargain.  

                                                              



                       Under this plea bargain, Akers received 3 days to serve and an additional  

                                                                                                                                      



57 days suspended.  After serving the 3 days, Akers was released on probation.  

                                                                                                                                             



                       In  early  2013,  Akers  was  charged  with  a  new  misdemeanor  offense  

                                                                                                                                         



(importation of  alcoholic beverages), and the State filed a petition to revoke Akers's  

                                                                                                                                          



probation in the DUI case.  

                                                 



                       The State again offered Akers a plea bargain - an offer that was intended  

                                                                                                                                         



to resolve both the new offense and the petition to revoke Akers's probation in the DUI  

                                                                                                                                               



case.  Specifically, the State offered to dismiss the new charge if Akers would admit the  

                                                                                                                                                  



probation violation and agree to serve 15 days of her previously suspended 57 days.  

                                                                                                                                                    



                       Akers appeared in court before Magistrate Judge Darlene Johnson-Edwards  

                                                                                                                         



and accepted the State's proposed plea bargain.  Magistrate Johnson-Edwards accepted  

                                                                                                                                        



Akers's admission to violating her probation,  and  she sentenced Akers in accordance  

                                                                                                                                   



with  the  plea  bargain  (i.e.,  she  ordered  Akers  to  serve  15  days  of  her  previously  

                                                                                                                                    



suspended sentence).  

                                        



      1     AS 28.35.030(a).              



      2     Superior court judges are authorized to exercise the functions of district court judges.  

                                                                                                                                                         

See Alaska Administrative Rule 24(e):  "When a superior court judge hears a matter that is  

                                                                                                                                                    

pending in the district court, that judge sits as a district court judge, and a specific assignment  

                                                                                                                                     

to the district court is not required."  

                                                             



                                                                        - 3 -                                                                  2529
  


----------------------- Page 4-----------------------

                                                                                                                          

                    During this revocation proceeding, no one asked Akers if she was willing  



                                                                                                             

to waive her right to have a district court judge conduct the proceeding.  



                                                                                                                               

                    About  a  year later (in March 2014),  the State charged Akers with yet  



                                                                                                                      

another probation violation - this time, for consuming alcoholic beverages.  Although  



                                                                                                                               

the State again offered Akers a plea agreement to resolve this matter, Akers rejected the  



                                                                                                                          

offer and chose to have a hearing.  She asked for an attorney, and the revocation matter  



                                         

was continued until June.  



                                                                                                                           

                    In June 2014, Akers and her attorney appeared before District Court Judge  



                                                                                                                             

Nathaniel  Peters.              At  the  prosecutor's  suggestion,   Judge  Peters  scheduled  the  



                                                                                                                              

adjudication  hearing  in  front  of  Magistrate  Judge  Johnson-Edwards  -  under  the  



                                                                                                                       

mistaken  assumption  that  Magistrate  Johnson-Edwards  had  been  Akers's  original  



                             

sentencing judge.  



                                                                                                                             

                    Akers's  attorney  pointed  out  that  this  was  wrong  -  that  Akers  had  



                                                                                                                        

originally been sentenced by Judge McConnell.   But Judge Peters ruled  that Akers's  



                                                                                                                      

probation  revocation hearing should still be conducted by Magistrate Judge Johnson- 



                                                                                                                     

Edwards, because she was the judicial officer who  conducted the previous probation  



                                                                                                                             

revocation  hearing.             Judge Peters reasoned that if Magistrate Johnson-Edwards was  



                                                                                                                               

eligible to handle the previous petition to revoke, she remained eligible to  handle the  



                           

current petition.  



                                                                                                                    

                    When  Akers's  attorney  continued  to  object  that  Akers  was  statutorily  



                                                                                                                           

entitled to have the matter handled by a district court judge, Judge Peters ruled that Akers  



                                                                                                                           

had waived her right to a district court judge when, in 2013, she consented  to  have  



                                                                                                                  

Magistrate Johnson-Edwards preside over the previous revocation matter.  



                                                                                                                              

                    Akers then petitioned this Court to review the district court's ruling.   We  



                                                                                 

granted Akers's petition and ordered formal briefing.  



                                                              - 4 -                                                          2529
  


----------------------- Page 5-----------------------

              How we interpret the provisions of AS 22.15.120                                



                           From the days when Alaska was a territory, and up to the present                                                                        day,  



Alaska has relied on judicial officers who do not necessarily have formal training in the                                                                              



 law.    These judicial officers were first called "district magistrates"                                                               and,   later, simply   



                             3                                                                                                                                          4  

                                 Currently (since January 2013), they are called "magistrate judges".  

 "magistrates".                                                                                                                                        



                           Despite these changes in their title, one of the primary roles of magistrate  

                                                                                                                                                         



judges  has  been  to  provide  or  enhance  judicial services  in  rural locations.                                                                         As  our  

                                                                                                                                                                     



 legislature declared in 1959, magistrate judges were intended to be "[judicial officers]  

                                                                                                                                                            



 of limited trial power sufficient to meet the immediate requirements of justice in the less  

                                                                                                                                                                     



populated areas of the state."  SLA 1959, ch. 184,  25.  

                                                                                                                  



                           Both of the parties to this appeal, Akers and the State, ask us to interpret  

                                                                                                                                                            



AS  22.15.120  in  light  of  this  legislative  purpose  -  but  they  draw  very  different  

                                                                                                                                                          



 inferences from this legislative purpose.  

                                                                                  



                           The State focuses on the legislature's intention to provide judicial services  

                                                                                                                                                             



to the many locations where there is no sitting superior court or district court judge.  The  

                                                                                                                                                                    



 State argues that,  in light of this need for judicial services in rural Alaska, we should  

                                                                                                                                                               



broadly interpret the authority of magistrate judges.  

                                                                                                         



                           Akers, on the other hand, focuses on the fact that magistrate judges are not  

                                                                                                                                                                      

                                                                                    5  and on the fact that the legislature intended  

required to have formal training in the law,  

                                                                                                                                                            



       3      See  SLA 1959, ch. 184,  25, and SLA 1966, ch. 24,  3.                                                    



       4      See  Special Orders of the Chief Justice Nos. 6305 and 6306, issued December 21,  

                                                                                                                                                                       

2012.  



       5      In contrast to superior court and district court judges (who must have engaged in the  

                                                                                                                                                                       

practice of law or served as magistrates for minimum periods before their appointment; see  

                                                                                                                                                                      

AS 22.10.090 and AS 22.15.160(a)),magistrate judges need only be United States citizens,  

                                                                                                                                                             

residents of Alaska, and at least 21 years old.  AS 22.15.160(b).  

                                                                                                                         



                                                                                  - 5 -                                                                             2529
  


----------------------- Page 6-----------------------

                                                                                                                             

magistrate judges to be judicial officers of "limited trial power".                                    Akers argues that,  



                                                                                                                           

because magistrate judges are not required to be lawyers, the legislature did not intend  



                                                                                                                             

for magistrate judges to preside over criminal trials and other contested litigation - such  



                                                                                                                                      

as contested probation revocation proceedings - without a defendant's express consent.  



                                                                                                                                

                    There are difficulties with both parties' proposed  interpretations of the  



statute.  



                                                                                                                                  

                    The State's suggested broad interpretation of the statute is potentially at  



                                                                                                                       

odds with the legislature's express intention of creating a judicial office with "limited  



                                                                                                                          

trial power".  We note that when the Alaska state legislature enacted the original version  



                                                                                                                            

of AS 22.15.120  in 1959,  the legislature included the language of subsection (a)(6)  



                                                                                                                              

which bars magistrates from conducting trials without the defendant's consent.  See SLA  



                                                                                                                                

1959, ch. 184,  19.  It is not clear where this provision came from; it is not found in the  



                                                                                                                  

pre-existing territorial law.   But the legislature's inclusion of this provision underscores  



                                                                                                                      

its declared intention of limiting the authority of magistrates to conduct certain contested  



                     

proceedings.  



                                                                                                                                

                    On the other hand, Akers's suggested interpretation of the statute - the  



                                                                                                                               

suggestion that the legislature did not intend for magistrate judges to preside over any  



                                                                                                                              

contested criminal litigation without the parties' consent - is clearly inconsistent with  



                                                                                                                            

the  provisions of AS 22.15.120.                      As we explained above,  AS 22.15.120(a)(7) gives  



                                                                                                                                  

magistrate  judges  unfettered  authority  to  preside  over  trials  where  the  defendant  is  



                                                                                                                               

charged with a minor offense or with the violation of a city or borough ordinance.  



                                                               - 6 -                                                          2529
  


----------------------- Page 7-----------------------

                               It is true that the types of cases covered by subsection (a)(7)                                                                                 typically  



 involve lesser penalties.                             In particular, prosecutions for the "minor offenses" defined in                                                                         

                                                                                                                                       6    But defendants who are  

AS 22.15.120(c) do not involve                                              any risk of incarceration.                                                                                      

 convicted of violating a local ordinance can face significant jail time7  

                                                                                                                                                                            

                                                                                                                                                           - and magistrate  



                                                                                                                                                                                           

judges  are  empowered  to  preside  over  the  trials  in  those  cases  regardless  of  the  



                                                 

 defendant's consent.  



                                                                                                                                                                             

                               Thus,  even though Akers and the State have both identified important  



                                                                                                                                                                                            

policies that the legislature may well have considered when drafting AS 22.15.120, the  



                                                                                                                                                                                             

 actual provisions  of  the  statute  (and  the  statute's  limited  legislative  history)  fail to  



                                                                                                                                                                                              

 convince  us that either of these policies should be considered a paramount guide to  



                                                                                                       

resolving the issue presented in Akers's case.  



                                                                                                                                                                                              

                               With that, we turn to the language of AS 22.15.120 itself and the facts of  



                    

Akers's case.  



  



        6      AS 22.15.120(c) defines "minor offense" as (1) an offense classified by statute as an                                                                                           



 infraction   or   a   violation;   (2)   an   offense   for   which   a   bail   forfeiture   amount   has   been  

 authorized by statute and established by supreme court order; or (3) a statutory offense for                                                                                               

which a conviction cannot result in incarceration, a fine greater than $300, or the loss of a                                                                                                    

valuable license.                     



        7  

                                                                                                                                                                      

               Alaska  law  provides  for  two  basic  types  of   local  government:                                                                                    "home-rule"  

                                                                                                                                                                                               

municipalities and "general law" municipalities.  AS 29.04.010; AS 29.04.030;  Stevens v.  

                                                                                                                             

Matanuska-Susitna Borough , 146 P.3d 3, 7 (Alaska App. 2006).  



                                                                                                                                                                            

        General lawmunicipalities have only the powers conferred by statute.  See AS 29.04.020;  

                                                                                                                                                                                            

AS 29.04.030; Libby v. Dillingham, 612 P.2d 33, 42 (Alaska 1980).  The legislature has  

                                                                                                                                                                                        

 limited  the  penalties  that  these  local  governments  can  impose  for  violations  of  their  

                                                                                                                                                                                           

 ordinances:  no more than 90 days' imprisonment and a $1000 fine.  AS 29.25.070(a).  But  

                                                                                                                                                                                              

home-rule municipalities, in contrast, may exercise all legislative powers not prohibited by  

                                                                                                                                                                                 

 law or by their charter.  Alaska Constitution, Article X, Section 11; AS 29.04.010.  



                                                                                             - 7 -                                                                                        2529
  


----------------------- Page 8-----------------------

                                                                                           

          Application of AS 22.15.120 to the facts of Akers's case  



                                                                                                                  

                     AS 22.15.120 defines the authority of magistrate judges by affirmatively  



                                                                                                                               

listing the types of proceedings that magistrate judges are empowered to conduct.  This  



                                                                                                                                

list  of  authorized  proceedings  is  exclusive:                       the  statute  begins  with  the  words,  "A  



                                                                                                                               

magistrate shall preside only in [the following] cases and proceedings".  Thus, if AS 22.- 



                                                                                                                                   

15.120 does  not  affirmatively  grant  magistrate  judges  the  authority  to  preside  in  a  



                                                                                                                                

particular type of case or proceeding, magistrate judges do not have that authority.  



                                                                                                                                  

                     AS  22.15.120(a)(5)  authorizes  magistrate  judges  to  "give  judgment  of  



                                                                                                                                       

conviction" in all misdemeanor cases where a defendant pleads guilty or no contest.  



                                                                                                                                

Subsection  (5)  does  not  expressly  say  "and  impose  sentence"  -  but  neither  do  



                                                                                                                                    

subsections (a)(6) and (a)(7).  We therefore interpret subsection (a)(5) to mean that if a  



                                                                                                                             

defendant pleads guilty or no contest in front of a magistrate judge, that magistrate judge  



                                                                                           

is authorized to accept the plea and then impose sentence.  



                                                                                                                      

                     Similarly,  there is no clause of AS 22.15.120 that expressly empowers  



                                                                                                                                   

magistrate judges to conduct probation revocation proceedings.   But in Kvasnikoff v.  



                                                                                                                      

State,  535  P.2d  464,  466  (Alaska  1975),  our  supreme  court  held  that  a  probation  



                                                                                                                                    

revocation proceeding is a continuation of the original criminal prosecution.                                            Thus, a  



                                                                                                                              

magistrate judge's authority to conduct revocation proceedings would have to stem from  



                                                                                                                                

the fact that probation is a component of the defendant's sentence - and from the fact  



                                                                                                                                   

that  a  probation  revocation  proceeding  is  not  a  new  court  case,  but  is  rather  a  



                                                                             

continuation of the original criminal prosecution.  



                                                                                                                         

                     Under  this  reasoning,  if  a  magistrate  judge  had  presided  over  Akers's  



                                                                                                                            

original arraignment in 2012 (the arraignment where Akers pleaded guilty to the charge  



                                                                                                                        

of driving under the influence), that magistrate judge might have had a residual authority  



                                                               - 8 -                                                          2529
  


----------------------- Page 9-----------------------

                                                                                                                            

to  hear  any  later  probation  revocation  proceedings  in  Akers's  case,  even  if  those  



                                              

proceedings were contested.  



                                                                                                                             

                    We say "might" because the facts of Akers's case do not require us to reach  



                                                                                                                               

this issue.  When Akers was arraigned on the charge of driving under the influence, and  



                                                                                                                                      

when she pleaded guilty to that charge, she did not appear in front of a magistrate judge.  



                                                                                                                  

Instead, Superior Court Judge Dwayne McConnell presided over Akers's arraignment;  



                                                                                                 

he was the one who accepted Akers's plea and sentenced her.  



                                                                                                                              

                    In Trenton v. State, 789 P.2d 178, 179 (Alaska App. 1990), this Court held  



                                                                                                                   

that probation revocation proceedings should normally be held in front of the defendant's  



                                                                                                                           

original sentencing judge, unless there is good reason to assign another judge.                                            Thus,  



                                                                                                                          

under our decision in Trenton, Judge McConnell was presumptively the judge to preside  



                                                                            

over Akers's later probation revocation hearings.  



                                                                                                                    

                    This   brings  us  to  the  subject  of  Akers's  first  probation  revocation  



                                                                                                                                 

proceeding - the one held in 2013 in front of Magistrate Judge Johnson-Edwards.  



                                                                                                                             

                    The State concedes that Akers's original guilty plea and sentencing were  



                                                                                                                          

not handled by a magistrate judge,  but the State nevertheless argues that we should  



                                                                                                                     

uphold Magistrate Johnson-Edwards's authority to conduct the first probation revocation  



                                        

proceeding held in 2013.  



                                                                                                                                

                    At that first probation revocation proceeding,  Akers did not contest the  



                                                                                                                            

State's allegation that she violated the conditions of her probation.   Instead, she chose  



                                                                                                                              

to admit the probation violation as part of a plea bargain.  Because of this, the State asks  



                                                                                                                         

us to treat that first probation revocation proceeding as the legal equivalent of a criminal  



                                                                                                                             

arraignment and the entry of a guilty plea.  And based on this view of things, the State  



                                                                                                                             

contends  that Magistrate Johnson-Edwards was authorized to preside over the 2013  



                                                                                                                              

probation  revocation  proceeding  under  AS  22.15.120(a)(5)  -  the  provision  that  



                                                               - 9 -                                                          2529
  


----------------------- Page 10-----------------------

                                                                                                                                   

authorizes magistrate judges to enter judgement in misdemeanor prosecutions when a  



                                                            

defendant pleads guilty or no contest.  



                                                                                                                                      

                    While there is arguable logic to the State's proposal,  we must reject it.  



                                                                                                                                  

There is, of course, an analogy that can be drawn between a defendant's guilty plea to  



                                                                                                                               

a  criminal charge and a defendant's admission of an alleged probation violation.   But  



                                                                                                                   

Kvasnikoff squarely holds that a probation proceeding is not a new criminal proceeding;  



                                                                                                                      

it is a continuation of the original criminal proceeding.  The fact that the State petitioned  



                                                                                                                                   

the district court to revoke Akers's probation did not mean that the State had initiated a  



                                                                    

new misdemeanor prosecution against her.  



                                                                                                                       

                     It  is  true that Akers did not object to having Magistrate Judge Johnson- 



                                                                                                                        

Edwards  preside  over  that  first  probation  revocation  proceeding in  2013.                                       Without  



                                                                                                                      

objection, the magistrate judge accepted Akers's admission of the probation violation,  



                                                                                                 

and she sentenced Akers to the agreed-upon 15 days to serve.  



                                                                                                                              

                    Akers does not challenge that 2013 revocation proceeding now, so we have  



                                                                                                                              

no occasion to decide whether Magistrate Judge Johnson-Edwards validly presided over  



                                                                                                                        

that proceeding.  But in any event, the fact that Magistrate Johnson-Edwards presided  



                                                                                                                                 

over  the  2013  proceeding did  not  give  the  magistrate  judge  continuing authority  to  



                                                                                                                                 

preside over later probation revocation proceedings when Akers expressly objected.  



           Conclusion  



                                                                                                                              

                     The decision of the district court is REVERSED.  Akers is entitled to have  



                                                                                                                         

her probation revocation proceeding conducted by a district court judge (or by a superior  



                                                             

court judge sitting in the district court).  



                                                              -  10 -                                                         2529
  

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