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Tinker v. State (12/23/2016) ap-2530

Tinker v. State (12/23/2016) ap-2530

                                                                                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@ akcourts.us  



                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                      



MAMIE  S.  TINKER,  

                                                                                                       Court of Appeals No. A-12677  

                                                                                                                                                  

                                                      Petitioner,                                    Trial Court No. 4HB-16-034 CR  

                                                                                                                                                               



                                         v.  

                                                                                                                    O  P  I  N  I  O  N  

                                                                                                                                                  

STATE OF ALASKA,  

                      



                                                      Respondent.                                    No. 2530 - December 23, 2016  

                                                                                                                                                            



                           Petition for  Review from the  District  Court,  Fourth Judicial  

                                                                                                                                      

                           District, Bethel, Nathaniel Peters, Judge.  

                                                                                              



                           Appearances:  Kelly R. Taylor, Assistant Public Defender, and  

                                                                                                                                               

                           Quinlan Steiner, Public Defender, Anchorage, for the Petitioner.  

                                                                                                                                                       

                           Kenneth M. Rosenstein, Assistant Attorney General, Office of  

                                                                                                                                                 

                           Criminal Appeals, Anchorage,  and Jahna Lindemuth, Attorney  

                                                                                                                                    

                           General, Juneau, for the Respondent.  

                                                                                                   



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

                                                                                                                                    

                           Superior Court Judge.*  

                                                                         



                                        

                           Judge MANNHEIMER.  



       *      Sitting    by   assignment   made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  



Constitution and Administrative Rule 24(d).                              


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

                                                                                                                 

                    The defendant in this case, Mamie S. Tinker, is charged with fourth-degree  



                                                                                                                             

assault arising out of an incident that occurred in Hooper Bay.   Alaska Criminal Rule  



                                                                                                                         

18(a) designates Bethel as the presumptive trial site for offenses occurring in Hooper  



                                                                                                                          

Bay, but Tinker's attorney filed a motion under Criminal Rule 18(g) asking the district  



                                                           

court to hold her trial in Hooper Bay.  



                                                                                                                         

                    Criminal Rule 18(g) authorizes a court to change the venue of a criminal  



                                                                                                                                

trial "under the standards listed in AS 22.10.040".  In her motion, Tinker relied on the  



                                                                                                                               

portion  of  AS  22.10.040  which  declares  that  venue  can  be  changed  "when  the  



                                                                                                                                 

convenience of witnesses and the ends of justice would be promoted by the change of  



                                                                                                                         

venue".  She pointed out that all of the prospective witnesses are residents of Hooper  



                                                                                                                        

Bay, and she offered evidence that Hooper  Bay has a courthouse and other facilities  



                                                                  

adequate to accommodate a misdemeanor trial.  



                                                                                                                                 

                    The district court denied Tinker's request for a change of venue, relying on  



                                                                                                                               

this Court's decision in Wholecheese v. State, 100 P.3d 14, 16 (Alaska App. 2004).  The  



                                                                                                                               

district court interpreted Wholecheese to mean that a judge has no authority to hold a trial  



                                                                                                                              

in a location that is neither (1) designated as the presumptive trial site by Criminal Rule  



                                                                                                                                

18 nor (2) designated by the Administrative Director as an approved additional trial site  



                                                  

(in Administrative Bulletin 27).  



                                                                                                                     

                    Based on this interpretation of  Wholecheese, the district court concluded  



                                                                                                                                   

that even if Tinker was correct in asserting that Hooper Bay had suitable facilities for a  



                                                                                                                               

misdemeanor  trial,  and  that  a  change  of  venue  to  Hooper  Bay  would  promote  the  



                                                                                                                                

convenience of witnesses and the ends of justice, all of this was irrelevant - because the  



                                                                                                                                     

court had no authority to hold Tinker's trialin Hooper Bay even if these things were true.  



                                                                                                                          

                    Tinker now petitions this Court to review and reverse the district court's  



                                                                     

ruling on her request for a change of venue.  



                                                               - 2 -                                                          2530
  


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

                                                                                                                              

                    In her petition, Tinker points out that the  Wholecheese decision deals only  



                                                                                                                            

with requests for an alternate trial site under Rule 18(e) - motions for a change of venue  



                                                                                                                           

by right.  Because Tinker is seeking a discretionary change of venue under Rule 18(g),  



                                                                                                                                

she argues that Wholecheese does not control her case, and that the district court has the  



                                                                                                                                

authority under Criminal Rule 18(g) to change the site of the trial to any location if the  



                                                                                                                               

criteria of AS 22.10.040 are met - even when  the  proposed trial location (1) is not  



                                                                                                                            

designated as the presumptive trial site by Criminal Rule 18,  and (2) has not been  



                                                                                                                      

designated by the Administrative Director as an approved additional trial site.  



                                                                                                                                

                    The State agrees with Tinker that  Wholecheese only governs requests for  



                                                                                                                          

change of venue under Criminal Rule 18(e), and that a court's authority to order a change  



                                                                                                                                 

of venue under Criminal Rule  18(g)  is not limited to the locations that are listed as  



                                                                                                                                

approved trial sites in Rule 18 or that have been designated as additional trial sites by the  



                                        

Administrative Director.  



                                                                                                                                

                    We agree with the parties that  Wholecheese does not govern requests for  



                                                                                                                               

change of venue under Criminal Rule 18(g), and we further agree with the parties that  



                                                                                                                                  

the district court has the authority to hold Tinker's trial in Hooper Bay if that venue is  



                                                                                  

appropriate under the criteria listed in AS 22.10.040.  



                                                                                                                                 

                    We therefore VACATE the district court's decision on Tinker's motion for  



                                                                                                                        

a change of venue.  We direct the district court to hold a hearing to investigate Tinker's  



                                                                                                                              

assertions that the facilities in Hooper Bay are adequate for holding a misdemeanor trial,  



                                                                                                                                  

and that the convenience of witnesses and the ends of justice would be promoted by a  



                                                    

change of venue to Hooper Bay.  



                                                                                                                    

                    We express no opinion on these matters, and we do not retain jurisdiction  



                        

over this case.  



                                                               - 3 -                                                          2530
  

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