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Treptow v. State (12/1/2017) ap-2576

Treptow v. State (12/1/2017) ap-2576

                                                                                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                                                      



MATTHEW  JAMES  TREPTOW,  

                                                                                                       Court of Appeals No. A-12092  

                                                                                                                                                  

                                                      Appellant,                                   Trial Court No. 3AN-13-10472 CR  

                                                                                                                                                                 



                                         v.  

                                                                                                                    O  P  I  N  I  O  N  

                                                                                                                                                  

STATE OF ALASKA,  

                      



                                                      Appellee.                                       No. 2576 - December 1, 2017  

                                                                                                                                                          



                           Appeal           from  the   Superior   Court,  Third  Judicial   District,  

                                                                                                                                   

                           Anchorage, Michael L. Wolverton, Judge.  

                                                                                               



                           Appearances:  J. Adam Bartlett, Anchorage, under contract with  

                                                                                                                                             

                           the  Office of Public Advocacy, for the Appellant.   Terisia K.  

                                                                                                                                                

                           Chleborad,  Assistant  Attorney  General,  Office  of  Criminal  

                                                                                                                                   

                           Appeals,  Anchorage,  and Jahna Lindemuth,  Attorney General,  

                                                                                                                                    

                           Juneau, for the Appellee.  

                                                                             



                           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-----------------------

                      Matthew James Treptow appeals his conviction for felony drivingunder                                             the  



                 1  

influence.                                                                                                                          

                     Treptow's offense was classified as a felony because he had two  prior  



                                                                                                                                    

convictions for DUI within the preceding ten years,  one from Alaska and one from  



                 

Arizona.  



                                                                                                                                        

                      In this appeal, Treptow argues that his Arizona DUI conviction should not  



                                                                                                                                         

be counted because of a purported difference between Arizona law and Alaska law.  



                                                                                                                      

                      Under Arizona law, a person charged with a crime (felony or misdemeanor)  



                                                                                                                         

is entitled to waive their right to a jury trial, but only with the consent of the government  

                                                2  Treptow acknowledges that Alaska law is the same with  

                                                                                                                                      

and the approval of the court.  



respect to defendants  charged with felonies,  but Treptow asserts that misdemeanor  

                                                                                                                      



defendants in Alaska have an absolute right to demand  a  bench trial, even when the  

                                                                                                                                       



government and the court do not consent.  

                                                                      



                      Based on this purported difference between Alaska law and Arizona law,  

                                                                                                                                      



Treptow argues that Arizona DUI convictions do not qualify as "prior convictions" for  

                                                                                                                                        



purposes of Alaska's felony DUI law.  

                                                               



                      For the reasons  explained in this opinion,  we conclude that Treptow's  

                                                                                                                           



argument is based on a misreading of Alaska Criminal Rule 23(a).  We hold that, under  

                                                                                                                                   



      1    AS 28.35.030(n).            



     2  

                                                                                                                                      

           At the time Treptow's case was litigated in the superior court, Arizona Criminal Rule  

                                                                                                                                        

18.1(b) stated:   "The defendant may waive the right to trial by jury with  consent  of the  

                                                                                                                                      

prosecution and the court.  In a capital case, the defendant may also waive the right to have  

                                                                                                                                 

a jury determine aggravation or the penalty if the prosecution and the court concur."  



                                                                                                                                       

     Earlier  this  year,  the  Arizona  Supreme  Court  amended  the  wording  -  but  not  the  

                                                                                                                                        

substance - of Criminal Rule 18.1(b).  The rule now states, "The defendant may waive the  

                                                                                                                                           

right to trial by jury if the State and the court  consent.  If the State and the court agree, a  

                                                                                                                                           

defendant also may waive the right to have a jury determine aggravation or the penalty in a  

                      

capital case."  



                                                                  - 2 -                                                              2576
  


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

                                                                                                                                

Criminal Rule 23(a), a defendant's waiver of jury trial must be approved by both the  



                                                                                                                            

government and the court, regardless of whether the defendant is being tried for a felony  



                               

or a misdemeanor.  



                                                                           

          The rule at issue:  Alaska Criminal Rule 23(a)  



                                                                          

                    Alaska Criminal Rule 23(a) states:  



                      

                                                                                                          

                               (a)  Trial by Jury.   Cases required to be tried by jury  

                                                                                                             

                     shall be so tried unless the defendant waives a jury trial.  In  

                                                                                                    

                     felony cases, the waiver must be in writing with the approval  

                                                                                            

                    of the court and the consent of  the state.   In misdemeanor  

                                                                                                              

                    cases, the waiver may be in writing or made on the record in  

                                        

                    open court.  



                                                                                                                          

                    As  can be seen,  the second sentence of Rule 23(a) says that a felony  



                                                                                                                                 

defendant's waiver of jury trial is conditioned on three things:  (1) the waiver must be  



                                                                                                            

in writing; (2) the court must approve; and (3) the state must consent.  



                                                                                                                                

                    The third sentence of Rule 23(a) then says that, in misdemeanor cases, the  



                                                                                                          

waiver may either be in writing or made on the record in open court.  



                                                                                                                                

                    Because the third sentence of Rule 23(a) does not expressly reiterate the  



                                                                                                                                

requirements of "approvalof the court" and "consent of the state", Treptow interprets the  



                                                                                                                                  

rule as saying that these elements are not required in misdemeanor cases.  According to  



                                                                                                                            

Treptow, Criminal Rule 23(a) gives misdemeanor defendants an absolute right to waive  



                                                                                                                                      

a jury and demand a bench trial, regardless of whether the court and the state consent.  



                                                                                                                                   

                    But the third sentence of Rule 23(a) could reasonably be interpreted in a  



                                                                                                                         

different light:  it could be read as simply relaxing the "writing" requirement that governs  



                                                                                                                               

waivers of jury trial in felony cases - so that, in misdemeanor cases, jury waivers can  



                                       

be either written or oral.  



                                                               - 3 -                                                          2576
  


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

                                                     To   resolve this ambiguity,                                                                                we have examined the legislative history of                                                                                                                        



 Alaska Criminal Rule 23(a).                                                                                 For the reasons we are about to explain, we conclude that                                                                                                                                                         



 when a defendant wishes to waive the right to a jury trial, Criminal Rule 23(a) requires                                                                                                                                                                                                                      



 the approval of the court and the consent of the government in all cases - both felonies                                                                                                                                                                                                                      



 and misdemeanors.                                                            



                           The pre-statehood history of Alaska Criminal Rule 23(a)                                                                                                                                                 



                                                     The history of Alaska Criminal Rule 23(a) begins in 1930, when the United                                                                                                                                                                                      



 States Supreme                                                  Court decided                                            Patton v. United States                                                                        , 281 U.S. 276, 50 S.Ct. 253,                                                                     



 74 L.Ed. 854 (1930).                                                                 



                                                     The   issue   addressed   in   Patton   was   whether,   consistent   with   the   Sixth  



 Amendment's guarantee of jury trial, a criminal defendant could                                                                                                                                                                                          ever  waive their right                                           



 to have a jury decide their case.                                                                                              The underlying question (as framed by the Supreme                                                                                                                         



 Court) was whether the guarantee of jury trial should be viewed as a fundamental aspect                                                                                                                                                                                                                             



 of   the   form   of   government   guaranteed   by   the   federal constitution,                                                                                                                                                                                              or   whether   the  



 guarantee of jury trial should be viewed as a personal right of a criminal defendant -                                                                                                                                                                                                                                            



                                                                                                                3  

 a right that could be waived.                                                                                       



                                                    At   common  law,   a  defendant   was  not   allowed   to   waive  a  jury  

                                                                                                                                                                                                                                                                                                                          



                    4  

 trial.                     And in 1930, at the time of the Patton decision, there was still significant judicial  

                                                                                                                                                                                                                                                                                                                  



 authority holding that the right of jury trial could not be waived - on the ground that the  

                                                                                                                                                                                                                                                                                                                                 

jury was an essential aspect of a properly constituted criminal tribunal. 5                                                                                                                                                                                                            But in Patton,  

                                                                                                                                                                                                                                                                                                                 



              3           Patton ,  281 U                                       .S.  at  293,  50 S                                    .Ct.  at  256.   



              4           Id.,  281 U                           .S.  at  306,  50 S                                    .Ct.  at  261.    



              5            See  Low  v.   United  States,   169  F.   86,  92  (6th  Cir.   1909),  and  Dickinson  v.   United  



                                                                                                                                                                                                                                                                                              (continued...)  



                                                                                                                                                               - 4 -                                                                                                                                                           2576
  


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

the Supreme Court rejected this view of the law and held that the right to jury trial was                                                              



                                                                                                              6  

 a right conferred on defendants, and that it could be waived.                                                   



                         However, the Supreme Court declared that a defendant's right to waive a  

                                                                                                                                                            



jury trial was not absolute.  The Court cautioned that having a jury sit as the fact-finder  

                                                                                                                                           



in a criminal case is not simply a right of the defendant; it is also an important element  

                                                                                                                                                



 of the criminal justice system itself.                                Thus,  both the trial judge and the government  

                                                                                                                                        



 should have to approve any waiver of jury trial offered by a defendant:  

                                                                                                              



                           

                                     Trial  by  jury  is  the  normal  and,  with  occasional  

                                                                                                                  

                         exceptions, the preferable mode of disposing of issues of fact  

                                                                                                                               

                         in criminal cases above the grade of petty offenses.  ...  [T]he  

                                                                                                                            

                         value and appropriateness of jury trial have been established  

                                                                                                                  

                         by long experience, and are not now to be denied.  Not only  

                                                                                                                              

                         must the right of the accused to a trial by a constitutional jury  

                                                                                                                               

                         be jealously preserved, but the maintenance of the jury as a  

                                                                                                                                    

                         fact-finding body in criminal cases is of such importance and  

                                                                                                                               

                         has such a place in our traditions, that, before any waiver can  

                                                                                                                                

                         become effective, the consent of government counsel and the  

                                                                                                                                 

                         sanction of the court must be had, in addition to the express  

                                                                                                                         

                         and intelligent consent of the defendant.  And the duty of the  

                                                                                                                                

                         trial court in that regard is not to be discharged  as  a  mere  

                                                                                                                           

                         matter of rote, but with sound and advised discretion, with an  

                                                                                                                                  

                         eye  to  avoid  unreasonable  or  undue  departures  from  that  

                                                                                                                              

                         mode of trial or from any of the essential elements thereof,  

                                                                                                                       

                         and with a caution increasing in degree as the offenses dealt  

                                                                                                                             

                         with increase in gravity.  

                                                                      



Patton, 281 U.S. at 312-13, 50 S.Ct. at 263.  

                                                                                   



       5     (...continued)  



                                                                                                                                                           

States, 159 F. 801 (1st Cir. 1908) - both discussed in Patton , 281 U.S. at 294, 50 S.Ct. at  

          

256.  



       6  

                                                                                    

            Patton , 281 U.S. at 298, 50 S.Ct. at 258.  



                                                                           - 5 -                                                                      2576
  


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

                          In   1944,   based   on   the   Supreme   Court's   decision   in   Patton,   Congress  



enacted Federal Criminal Rule 23(a) - a rule based on the                                                           Patton  decision.   



                          Originally, Federal Criminal Rule 23(a) stated, "Cases required to be tried                                                            



by jury shall be so tried unless the defendant waives a jury trial in writing with the                                                                             

                                                                                                                       7    Because Alaska was a  

approval of the court and the consent of the government."                                                                                                              



federal territory at the time,  Federal  Criminal Rule 23(a) was the law that governed  

                                                                                                                                                       



criminal trials in Alaska.  

                                                 



                          In its current version, Federal Criminal Rule 23(a) states:  

                                                                                                                                           



                            

                                       (a) Jury Trial .   If the defendant  is  entitled to a jury  

                                                                                                                                       

                          trial, the trial must be by jury unless:  

                                                                                                   

                                       (1) the defendant waives a jury trial in writing;  

                                                                                                                    

                                       (2) the government consents; and  

                                                                                                  

                                       (3) the court approves.  

                                                                  

  



             The post-statehood history of Alaska Criminal Rule 23(a)  

                                                                                                                     



                          Alaska became a state in 1959,  fifteen years after the promulgation  of  

                                                                                                                                                                     



Federal Criminal Rule 23(a).  In that year, our newly formed supreme court issued the  

                                                                                                                                                                    



initial version  of  Alaska's  court  rules.                                     See  Supreme  Court  Order  No.  4  (effective  

                                                                                                                                                      



October 4, 1959).  

                                      



                          In its 1959 version, Alaska Criminal Rule 23(a) tracked the then-current  

                                                                                                                                                  



wording of its federal counterpart:  

                                                                    



                            

                                       (a)  Trial by Jury.   Cases required to be tried by jury  

                                                                                                                                        

                          shall be so tried unless the defendant waives a jury  trial in  

                                                                                                                                            

                          writing with the approval of the court and the consent of the  

                                                                                                                                          

                          state.  

                                      



       7     Quoted in          Hatchett v. Government of Guam                                 , 212 F.2d 767, 777 (9th Cir. 1954).                                 



                                                                                - 6 -                                                                            2576
  


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

                                                                                                                          

                    The 1959 version of the  Alaska Criminal Rules also contained a section  



                                                                                                                              

("Part X") that was titled "Procedures for the trial of cases before magistrates" - i.e.,  



                                                                                                       

procedures for the trial of misdemeanor cases in the district court.  



                                                                                                                               

                    The  first  rule  in  Part  X  of  the  Criminal Rules  was  Criminal  Rule  59,  



                                                                                                                             

"Applicability of Rules; Special Provisions".   Criminal Rule 59 declared that the rules  



                                                                                                                        

of criminal procedure codified in the regular Criminal Rules  "shall apply to criminal  



                                                                                                                              

actions in the district magistrate courts ... except as follows".   Criminal Rule  59  then  



                                                                                                                             

contained a series of subsections, each specifying how the procedures in district court  



                                                                                                                        

criminal cases would differ from the normal procedures set forth in the regular Criminal  



            

Rules.  



                                                                                                                                

                     Subsection (d) of Criminal Rule 59 established a single departure from the  



                                                                                                                                   

regular Criminal Rules with respect to waivers of jury trial.   That difference was that a  



                                                                                                                    

defendant's waiver of jury trial could be made orally in district court cases:  



                      

                                                                                                    

                               (d)   Trial by Jury; Waiver.   The manner of drawing  

                                                                                                    

                    juries  shall  be  as  provided  by  Section  68-6-8,  [Alaska  

                                                                                                 

                    Compiled Laws Annotated] 1949.  Waiver by the defendant  

                                                                                                             

                    of jury trial or agreement by the parties for trial by a jury of  

                                                                                                              

                    less than twelve need not be in writing, but shall be made in  

                                                                                                    

                    open court, and the magistrate shall make a proper notation  

                                                                                   

                    thereof in the record of the proceedings.  



                                                                                                                               

                    To summarize the law set forth in Alaska's original 1959 court rules:  



                                                                                                                                  

                    Criminal Rule 23(a) declared that a defendant's waiver of jury trial had to  



                                                                                                                          

be in  writing, and that the waiver required the government's consent and the court's  



                

approval.  



                                                                                                                                

                    Under the provisions of Criminal Rule 59, the jury waiver procedures set  



                                                                                                                             

forth in Criminal Rule 23(a) governed the trial of misdemeanor cases in the district court  



                                                               - 7 -                                                          2576
  


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

                                                                                                                                 

except as specified in Rule 59(d) - and Rule 59(d) only relaxed the requirement that the  



                                                               

defendant's waiver had to be in writing.  



                                                                                                                                

                     Thus,   under   this   original  version  of   Alaska's  Criminal  Rules,   the  



                                                                                                                               

requirements of court approval and government consent governed  all waivers of jury  



                                                                                              

trial - i.e., waivers in both felony and misdemeanor cases.  



                                                                                                                                 

                     The Alaska Supreme Court later moved  the provisions of Part X of the  



                                                                                                                          

Criminal Rules into a separate set of rules - first, as the "Magistrate Criminal Rules",  



                                                                                                                                

and later as the "District Court CriminalRules". When that happened, the provisions that  



                                                                                                                                

were  originally contained in Criminal Rule 59 were moved to a new Rule 1 of the  



                                                 

District Court Criminal Rules.  



                                                                                                                                 

                     But the wording of the special misdemeanor rule remained essentially the  



                                                                                                                                  

same:  District Court Criminal Rule 1 still codified the principle that the normal rules of  



                                                                                                                              

criminal procedure would apply to misdemeanor cases in the district court unless some  



                                                                                                                            

variation  was  specified  in  the  district  court  rules.                         Until  mid-2013,  District  Court  



                                         

Criminal Rule 1 declared:  



                       

                                                                                                  

                               Wherever           practicable[,]         the     Rules       of     Criminal  

                                                                                                           

                     Procedure   shall   apply   to   criminal   actions   within   the  

                                                                        

                    jurisdiction of the district courts.  



                                                                                                                                 

Thus,  the jury waiver procedures specified in Criminal Rule 23(a) - including the  



                                                                                                                                   

requirements of court approval and government consent - governed criminal cases in  



                                                                                                                        

the  district  court  unless  the  District  Court  Criminal Rules  specified  some  different  



                   

procedure.  



                                                                                                                               

                     And, like the old Criminal Rule 59(d), District Court Criminal Rule 1(d)  



                                                                                                                                

modified only the requirement that the defendant's waiver needed to be in writing:  



                       



                                                               - 8 -                                                          2576
  


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

                                                                                                     

                               (d)  Trial by Jury - Waiver.  The manner of drawing  

                                                                                                                 

                    juries shall be as provided by AS 09.20.040 - 09.20.090.  

                                                                                                     

                    Waiver by the defendant of jury trial need not be in writing,  

                                                                                                             

                    but shall be made in open court,  and the district judge or  

                                                                                                       

                    magistrate shall make a proper notation thereof in the record  

                                                   

                    of the proceedings.  



                                                                                                                          

So again, under the Criminal Rules and the District Court Criminal Rules as they existed  



                                                                                                                   

until mid-2013, Criminal Rule 23(a)'s requirements of court approval and government  



                                                                                                                        

consent applied to waivers of jury trial in both felony and misdemeanor cases.  



                                                                                                                        

          The repeal of the District Court Criminal Rules, and the amalgamation of  

                                                                               

          those rules into the regular Criminal Rules  



                                                                                                                                  

                    In late 2012, the Alaska Court Administration began drafting a proposal to  



                                                                                                                                     

abolish the District Court Criminal Rules. The court administration's plan had two parts.  



                                                                                                                          

                    The first part of the plan was to take all the special provisions of the District  



                                                                                                                          

Court Rules that applied to the trials of non-criminal offenses ("violations" that carried  



                                                                                                                         

no possibility of imprisonment) and move those provisions into a new group of "Minor  



                          

Offense Rules".  



                                                                                                                         

                    The second part of the plan was to take all the provisions of the District  



                                                                                                                            

Court  Criminal Rules  that  applied  to  misdemeanor  offenses  and  incorporate  those  



                                                                  

provisions into the regular Criminal Rules.  



                                                                                                                            

                    To  carry  out  this  second  part  of  the  plan,  members  of  the  court  



                                                                                                                             

administrative staff drafted a series of proposed rule changes.                                   These proposals were  



                                                                                 

circulated by memorandum in late December 2012.  



                                                                                                                     

                    In line with the goal of incorporating the various misdemeanor provisions  



                                                                                                                   

of District Court Criminal Rule 1 into the regular Criminal Rules, the court administra- 



                                                               - 9 -                                                          2576
  


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

tion proposed that the supreme court amend Criminal Rule 23(a) to its current form,                                                                                                                   



 so that the rule would cover both felony and misdemeanor cases.                                                                                                     The administrative   



 staff's proposed language is underlined:                                                         



                                   

                                                  (a)   Trial by Jury                       .    Cases required to be tried by jury                                       

                                 shall be so tried unless the defendant waives a jury trial.  In  

                                                                                                                                                                             

                                                                                                                                                               

                                 felony cases, the waiver must be in writing with the approval  

                                                                                                                                                   

                                 of the court and the consent of the state.   In misdemeanor  

                                                                                                                                                                                

                                 cases, the waiver may be in writing or made on the record in  

                                               

                                 open court.  



                                                                                                                                                                                                              

See the memo, "Moving DCCrR 1 to Criminal Rules, Draft of 12-28-2012", at page 10  



                8  

                    

of 11.  



                                                                                                                                                                                                            

                                 Contrary to Treptow's argument on appeal,  this new language was not  



                                                                                                                                                                                                             

drafted to give misdemeanor defendants a new, absolute right to waive a jury without the  



                                                                                                                                                                                                           

approval of  the  court  and  the  consent  of  the  government.                                                                                           Just  the  opposite:                              the  



                                                                                                                                                                                                     

administrative staff was not trying to change the law at all.                                                                                              As  part of their memo  



                                                                                                                                                                                                 

describing the  proposed  change  to  Criminal Rule  23(a),  the  administrative  drafters  



                                                                                                                                                             

included an "Explanation of Changes".  That explanation reads:  



                                   

                                                                                                                                                                 

                                                  The changes in this rule clarify that felony waivers  

                                                                                                                                                                              

                                 must still be in writing and that misdemeanor waivers may be  

                                                                                                                                                        

                                 in  writing  or  made  orally  on  the  record  as  [currently]  

                                                                                                                                                       

                                 provided in [District Court Criminal Rule] 1(d).  



              

Ibid.  



         8       This memo, as well as the Criminal Rules Committee minutes that we refer to in this                                                                                                        



opinion, are contained in the Court Rules Attorney's file on Criminal Rule 23.                                                                                                                 We have   

included the pertinent portions of these documents as attachments to this opinion.                                                                                                                The full   

documents are available for inspection in the Anchorage administrative offices of the Alaska                                                                                                          

Court System.                      



                                                                                                    -  10 -                                                                                               2576
  


----------------------- Page 11-----------------------

                          The court administrative staff presented their proposed rule changes to the                                                               



                                                                                                                                                  9  

Alaska Supreme Court at the court's "rules conference" on March 15, 2013.                                                                            Normally,  



                                                                                                                                                            

proposed changes to the Criminal Rules are examined and vetted by the supreme court's  



                                                                                                                                                                   

Criminal Rules Committee before the supreme court considers the changes.  But in this  



                                                                                                                                                         

instance, the court administrative staff presented their proposals directly to the supreme  



                                                                                                                                                                  

court, without vetting by the Criminal Rules Committee, because the staff believed that  



                                                                                                                                                          10  

                                                                                                                                                               

their proposals "[did] not change the substance of the existing rule provisions".  



                          At its March 2013 rules conference, the supreme court decided to move  

                                                                                                                                                               



forward with the staff proposal to abolish the District Court Criminal Rules.  The court  

                                                                                                                                                                



approved a draft order to this effect (draft Supreme Court Order No. 1799).   But "to  

                                                                                                                                                                   

make sure that [the court] was not missing anything", 11  the supreme court decided to  

                                                                                                                                                                     

have the Criminal Rules Committee review the proposed changes. 12  

                                                                                                                                      



                          The  supreme  court's  draft  order  amending  the  Criminal  Rules  was  

                                                                                                                                                                 



presented  to  the  Criminal Rules  Committee  at  its  May  2013  meeting.                                                                        The  list  of  

                                                                                                                                                                     



proposed changes to the Criminal Rules was a last-minute addition to the Committee's  

                                                                                                                                                



agenda,  and  the  Committee  was  informed  that  the  supreme  court  wanted  to  move  

                                                                                                                                                              



quickly.            According to  the  Committee  minutes,  the  Committee  "made  time  for  the  

                                                                                                                                                                   



discussion [of the proposed changes] in consideration of the [supreme] court's interest  

                                                                                                                                                           



       9     See  the minutes of the Criminal Rules Committee from May 6, 2013, page 1.
                                                                     



       10    Ibid.
  

                        



       11    Ibid.
  

                        



       12  

                        

             Ibid.
  



                                                                               -  11 -                                                                           2576
  


----------------------- Page 12-----------------------

in taking final action on this proposal before the publication deadline for the [next edition                                                             



                                     13  

of the] rule book."                      



                          During its  discussion  of  the  various  proposed  changes,  the  Committee  

                                                                                                                                                 



considered the draft amendment to Criminal Rule 23(a) - the amendment that we  

                                                                                                                                                                 



described above:  

                                    



                            

                                       (a)  Trial by Jury.   Cases required to be tried by jury  

                                                                                                                                     

                          shall be so tried unless the defendant waives a jury trial.  In  

                                                                                                                                         

                                                                                                                             

                          felony cases, the waiver must be in writing with the approval  

                                                                                                                   

                          of the court and the consent of the state.   In misdemeanor  

                                                                                                                                          

                          cases, the waiver may be in writing or made on the record in  

                                     

                          open court.  



                                                                                                                                                                

                          It was here,  during the Committee's discussion of Rule 23(a),  that the  



                                                                                                                                                             

ambiguity  in  the  administrative  staff's  wording was  first  perceived.                                                                 Did  the  third  



                                                                                                                                                            

sentence of the new version mean that waivers in misdemeanor cases could be either  



                                                                                                                                                                 

written or oral - the rule previously codified in District Court Criminal Rule 1(d)?  Or  



                                                                                                                                                        

was the third sentence also intended to eliminate the requirements of government consent  



                                                                                   

and court approval in misdemeanor cases?  



                                                                                                                                                               

                          To  further  complicate  matters,  there  was  disagreement  among  the  



                                                                                                                                                            

Committee members as to whether the then-current version of the rule - District Court  



                                                                                                                                                          

Criminal Rule 1(d) -  required court approval and government consent for any waiver  



                        14  

               

of jury trial.               According to the minutes, "opinions differed" on this issue.  

                                                                                                                                                 



                          Some members of the Committee  expressed the view that, because the  

                                                                                                                                                                 



introductory language of  District Court Criminal Rule 1 incorporated every provision  

                                                                                                                                                     



of the Criminal Rules unless the District Court Criminal Rules specified otherwise, the  

                                                                                                                                                                



       13    Ibid.  



       14    See  the minutes of the Criminal Rules Committee from May 6, 2013, page 2.                                                                    



                                                                              -  12 -                                                                         2576
  


----------------------- Page 13-----------------------

requirements of Criminal Rule 23(a) regarding court approval and government consent                                                       



                                                                                              15  

applied   to   waivers   of   jury   trial in                  the   district   court.                                                           

                                                                                                    But  other  members  of  the  



                                                                                                                                        

Committee suggested that "practice or custom" on this issue "[might] vary in different  



                                16  

              

[court] locations".  



                       The Committee tried to draft revised language for Criminal Rule 23(a) to  

                                                                                                                                                    



clarify that the requirements of court approval and government consent applied to all  

                                                                                                                                                   



waivers of jury trial.                  But in the end,  the Committee decided not to tinker with the  

                                                                                                                                                 



language that had been drafted by the  court administration - even though "several  

                                                                                                                                         

members found [this language] ambiguous". 17  

                                                                                   



                       According to the minutes, the Committee decided to take no action on this  

                                                                                                                                                 



language because the Committee "was not of one mind" and because the Committee  

                                                                                                                                   



"was hesitant to expressly call for what would be a change in practice in at least some  

                                                                                                                                              

                                  18  Instead, the Committee opted for the ambiguous language drafted  

areas of the state."  

                                                                                                                                           



by the court administration because the Committee "preferred to leave [this matter]  

                                                                                                                                          



                       19  

ambiguous."     



                        Several weeks later,  on June 24,  2013,  the supreme court promulgated  

                                                                                                                                 



Supreme Court Order No. 1799 (effective October 15, 2013).   In this order, the court  

                                                                                                                                              



enacted the version of Criminal Rule 23(a) that had been proposed in December 2012 by  

                                                                                                                                                   



the court administration.  

                                             



      15    See  the minutes of the Criminal Rules Committee from May 6, 2013, pages 2-3.                                                 



      16  

                                                                                                                                            

            See the minutes of the Criminal Rules Committee from May 6, 2013, page 3.  



      17   Ibid.  

                     



      18   Ibid.  



      19   Ibid.  



                                                                       -  13 -                                                                 2576
  


----------------------- Page 14-----------------------

                                                                                                                               

                    The legislative record does not indicate what consideration,  if any,  the  



                                                                                                                            

supreme court gave to the Criminal Rules Committee's discussion of this issue.   With  



                                                                                                                               

regard to the ultimate wording of Criminal Rule 23(a),  the record contains only the  



                                                                                                                          

explanation provided by the court administrative staff who drafted that wording.  



                                                                                                                         

                    As we have explained, the court administrative staff who drafted the current  



                                                                                                                                     

version  of  Criminal Rule  23(a)  did  not  think  that  they  were  changing Alaska  law.  



                                                                                                                           

Rather, they were merely trying to incorporate the existing provisions of District Court  



                                                                                                              

Criminal Rule 1 into the regular Criminal Rules.  According to the staff's accompanying  



                                                                                                                                

"Explanation of Changes",  the new version of Criminal Rule 23(a) was intended  to  



                                                                                                                                

incorporate the same rule that had been codified in District Court Criminal Rule 1(d) -  



                                                                                                                           

the rule that, in misdemeanor cases, an oral waiver of jury trial was acceptable.  



                                                           

          Our analysis of Criminal Rule 23(a)  



                                                                                                                              

                    As we explained early in this opinion, Alaska's Criminal Rule 23(a) was  



                                                                                                                          

based on  the corresponding federal rule that governed criminal trials in Alaska during  



                                                                                                                

territorial days.   Alaska's Rule 23(a) incorporates the federal rule's three requirements  



                                                                                                                            

of (1) a written waiver by the defendant, (2) consent by the government, and (3) court  



                

approval.  



                                                                                                                           

                    Until the summer of 2013 (when the Alaska District Court Criminal Rules  



                                                                                                                               

were repealed), District Court Criminal Rule 1 clearly stated that the provisions of the  



                                                                                                                            

regular Criminal Rules  applied to the trials of misdemeanor cases in the district court  



                                                                                                                         

unless some provision of the District Court Criminal Rules specified otherwise.  



                                                                                                                             

                    With respect to waivers  of jury trial,  District Court Criminal Rule 1(d)  



                                                                                                                           

relaxed the requirements of Criminal Rule 23(a) in one respect only:   District Court  



                                                             -  14 -                                                         2576
  


----------------------- Page 15-----------------------

                                                                                                                                  

Criminal Rule 1(d) declared that a defendant's waiver of jury trial did not need to be in  



                                                                                               

writing - that it could be made orally on the record instead.  



                                                                                                                                  

                    In all other respects, Criminal Rule 23(a) governed waivers of jury trial in  



                                                                                                                            

district court proceedings.   Thus, the requirements of government  consent and court  



                                                                                                                   

approval applied to jury trial waivers in district court criminal proceedings.  



                                                                                                                                 

                    Although  the  current  wording of  Alaska  Criminal Rule  23(a)  might  be  



                                                                                                                             

clearer, the intent of its drafters is very clear.  Those drafters were simply trying to meld  



                                                                                                                              

the provisions of District Court Criminal Rule 1(d) with the provisions of Criminal Rule  



                                                                         

23(a) - without changing the substantive law.  



                                                                                                                              

                    For these reasons, we interpret Criminal Rule 23(a) to mean that, in both  



                                                                                                                                  

felony and misdemeanor cases, a defendant can waive jury trial only with the consent of  



                                                                         

the government and the approval of the court.  



                                                                                                                               

                    And because there is no difference between Alaska law and Arizona law  



                                                                                                                                 

on this issue, we reject Treptow's argument that Arizona DUI convictions should not be  



                                                                                                                         

counted as "prior convictions" when an Alaska court or jury assesses whether an instance  



                                                                                                                                 

of driving under the influence is a felony or a misdemeanor under AS 28.35.030(n).  



                                                                                                                    

                    (In reaching this conclusion, we do not mean to say that DUI convictions  



                                                                                                                         

from states whose law does differ from Alaska law on this jury waiver issue are thereby  



                                                                                                                                

disqualified  as "prior convictions" for purposes of Alaska's felony DUI law.  We do not  



                                                                                                                        

reach this question, because Treptow's case does not require us to resolve it.)  



                                                                                                      

                    The judgement of the superior court is AFFIRMED.  



                                                              -  15 -                                                         2576
  


----------------------- Page 16-----------------------

 Rules  Referral Memorandum -D.Ct.Cr.Rules,  Criminal  Rules (SCO  1799)                           Page 3 of 5  

 May  17, 2013  



The  first  sentence  of  paragraph  (f)(4),  recited  above  (green),  is  correct  in  that  "the  defendant  

 must give written  consent to  have the  case tried  before a magistrate."  On  the  second  alternate  

 SCO  1799 (tan),  I have suggested language that builds on  that  original sentence,  and drops the  

 second original sentence:  



         (4)   The judicial  officer shall inform the  defendant that the case  may not be tried  

         before  a  magistrate  without  the  defendant's  written  consent:  and  that  if  the  

         defendant  does  not  give  that  written  consent.  the  case  will  be  assigned  to  a  

         district court judge.  



This  language is  intended to  avoid the  problem that the  Criminal  Rules Committee  had with  the  

earlier language.  Rather than  requiring a defendant to  opt out of an  assignment to  a magistrate  

judge,  the defendant would  need to opt in to  an  assignment to  a magistrate judge.  



A slightly more directive option would  replace the last clause with:  



         ; and that in  the  absence of that written  consent.  the  case will  be  assigned  to  a  

         district court judge.  



One of the  challenges of imprementing this  right  is that there  is  no set time for the  defendant to  

 be asked for or to offer written  consent.  



 Criminal Rule 23 - Jury Waiver and the Number of Jurors. As  noted  in the  meeting  minutes  

excerpt,  the  Criminal  Rules  Committee  declined  to  change  the  rule  language  to  state  that  a  

 misdemeanor  defendant's  consent  to  waive   a  jury  trial   must  include  the   consent  of  the  

prosecutor and  approval  of the  court.       Practice surrounding  consent varies  and  the  committee  

was  reluctant  to  mandate  any  changes.  It did  suggest  replacing  "state"  with  the  broader term  

0  government" to  identify whose consent is required for the waiver,  to read as follows:  



         (a)     Trial  by Jury*. Cases  required to  be tried  by jury  shall  be so tried  unless  

         the  defendant waives  a jury  trial.  In felony  cases.  the  waiver  must  be  in  writing  

         with   the  approval  of  the  court  and  the  consent  of  the  qovernment&tate.   In  

         misdemeanor cases.  the waiver  may be  in writing  or made on the  record  in open  

         court.  



Opinions differed whether the  misdemeanor and felony waiver standards in the  current rules are  

different  beyond  the  "in  writing"  requirement.        One  member  argued  that  the  consent  and  

approval  requirement applied  already to  misdemeanor cases  by virtue  of Dlstrfct Court Criminal  

 Rule   1's  advice  that  the   Criminal  Rules  apply  wherever  applicable.           The  specificity  and  

seemingly  comprehensive  approach  taken  in  the  existing  Criminal  Rufe  23  and  District  Court  

 Criminal  Rule  1(d) weigh  against that  reading.  Following the  meeting,  I researched the  origin of  

the  divergent  standards  and  found  that  they  can  be  traced  essentially  to  statehood.            See  

Attachment  D (excerpt of SCO 4).         Criminal  Rule  23's jury waiver standard  is  unchanged.  And  

the jury  waiver  standard  in  the  existing  District  Court  Criminal  Rules  was  taken  directly  from  

 Criminal  Rule  59(d).      Rule  59  appeared  in  the  part  of  the   Criminal  Rules  that   provided  

 procedures  for  the  district  magistrate  courts;  those  rules  were  later  replaced  with  the  District  

 Court Criminal  Rules.  



 Given   that   it  would   likely   change  the   standard  to   require   consent  and   approval   for   a  

                                             jury trial,  this  rule proposal may not be the best vehicle.   If  

 misdemeanor defendant's waiver of a  

there  is  interest  in  pursuing  change  to  the  waiver  standards,  it  might  be  better  handled  as  a  

 separate  rule  change  proposal  that  goes  through  the  usual  committee  review  and  comment  

 process.  



 Finally,  with  regard  to  proposed  Rule  23(b),  the  committee  questioned  why  the  rule  did  not  

 permit the  parties  in  misdemeanor cases  to  stipulate to  having  the jury  consist  of  less  than  six.  



                                                    Attachment A                                                          3  


----------------------- Page 17-----------------------

 Rules Referral Memorandum-0.Ct.Cr.Rules, Criminal Rules (SCO  1799)                                 Page 4 of 5  

 May  17, 2013  



The  current  district  court  rule  makes  no  such  allowance,  but  the  existing  Rule  23  does.  The  

committee  ran  out  of time  before it had the  chance  to  explore the  question  further.  It agreed  to  

 note the  issue but did not attempt to form  a recommendation.  



The  original  Criminal  Rule  59(d)  (shown in  SCO 4) did  allow the  parties to agree to  have a jury  

of fewer than  twelve.   But when  the separate Magistrate Rules were  created and made effective  

 by SCO 49  on January  1,  1963, that provision was eliminated.  (The language of Magistrate Rule  

 1(e) is  identical to the  language in  D.Ct.  Cr.  R.  1(d).)  The  materials  I have reviewed  relating to  

 SCO  49's  creation  of the  magistrate rules  did  not  directly  address the  issue of the  number of  

jurors.  But the  change  may  be  a consequence  of the  1961  enactment  of AS  22.15.150,  which  

provides that trial juries  in the district court shaU  consist of six  persons.  



 If the  court were  inclined.  Rule 23(b)  could  be  amended to  allow  parties  in  misdemeanor cases  

to agree to  a jury  of fewer than  six persons.  A possible approach  is shown  below:  



         In  felony  cases.  Juries  juries  shall  be  of  12  persons.  In  misdemeanor  cases.  

         juries  shall  be of six  persons.   ~9ut at  any  time  before verdict ...   the  parties  may  

         stipulate  in  writing  with  the  approval  of the  court  that  the  jury  shall  consist  of  

         fewer  personsany AUFRbeF  less thaFJ  1a.  



The  more  conservative  approach  would  be  to  retain  the  existing,  proposed  language  (taken  

from  the  district  court  rule)  and  let  any  proposal  for  change  go  through  the  full  rule  change  

review process if there  is interest.  



 Other Edits to Criminal Rule 5(c).  



The  criminal  rules  committee  also  suggested  some  other  edits  to  the  SCO.  Most  appear  in  

Criminal   Rufe  5(c).  (The  committee  also  suggested  that  Criminal  Rule  5(bfs  heading  be  

amended  to  match  its  text.)  Its well-taken  suggestion  to  delete  Rule  5  (c)(3)(E)  is  discussed  

above.     The    committee      also   recommended        deleting    the   repetitive    language   found      at  

 Rule 5 (c)(3}(C).  



The   committee   also   suggested  that  the   proposal  drop  the   language  presented   in   Rule  

5 {c){3)(B)(i)  to  (iii).  At  the  last  conference,  the  court  revised  that  language.  drawn  from  

 D.Ct.Cr.  R.  1(b)(2).   In the  second alternate SCO  1799 (tan),  I did  not include that suggestion.  If  

the court  adopts SCO  1799. the  Minor Offense Rules will  reference Criminal Rule 5(c) instead of  

 D.Ct. Cr.  R.   1.  Because  of  that,  it  may  be  helpful  to  retain  advice  regarding  who  is  entitled  to  

appointed counsel.  



The  committee  also  suggested  that  the  remaining  provisions  of  Rule  S(c)  be  restructured  to  

consolidate  some  provisions  and  avoid  repetition  of  the  phase  "shall  inform  the  defendant."  

 Because that change in structure did  not fit  with the substance of proposed paragraph (c)(5), the  

committee suggested  moving  it,  but did  not identify where.            In the  second  alternate  SCO  1799  

 (tan),  I further  restructured  subsection  (c)  to  find  a place for the  otherwise  orphaned  provision.  

All  the  provisions  that  fit   the  "shall  inform  the  defendant"  class  are  presented  in  (c)(1 ),  the  

orphaned  provision is presented at  (c)(2).  



Whether  the  committee*s  stylistic  edits  (and  my  additions)  achieve  their  intended  goal  of  

improving the  rule's readability is for the  court to  decide.  The court may prefer, for instance,  the  

Criminal     Rule   S(c)   language   as      presented     in  the   alternate    SCO     1799   (green),   with  

subparagraphs (c)(3)(C) and (E) deleted.  



                                                       Attachment A  


----------------------- Page 18-----------------------

 Rules Referral Memorandum -0.CtCr"Rules,  Criminal  Rules (SCO  1799)                                    Page 5 of 5 
 

May 17; 2013 
 



                                                List of Attachments 
 



Attachment A -        Rules Referral Memorandum (SCO  1799) without attachments 
 

                      (dated March 8.  2013)  .........................................................................1 
 



Attachment B -        Rule Proposal with  Commentary from Administrative  Staff 
 

                      (dated December 28,  2012)  ..................................................................5 
 



Attachment C -        Excerpt of Criminal Rules Committee Meeting Minutes (May St  2013)  ......... 16 
 



Attachment  D- 1959 Criminal Rules 23,  and 59 (SCO 4)  ......................................................24 
 



Attachment E -        Current District Court Crimtnal Rules  1, 4,  6;  Minor Offense Rules 5,  6; 
 

                      Criminal  Rules  5,  5.1,  10,  19 and 23 (blue) ............................................29 
 



Attachment F -        Alaska  Statute 22.15. 120 (blue) ................................. , ......................... 39 
 



                                                         Attachment A  

                                                                                                                       5  


----------------------- Page 19-----------------------

             Rule 5.1. Preliminary Examination in Felony Cases.  



             Rule 10. Felony Arraignment in Superior Court.  



             Rule 19. Change of Venue--Application to Court.  



             All  applications for change of place of trial in the cases  provided by AS  22.10.040 or  AS  22. t!oao shall be made by  motion, supported by  

             affidavit,  upon five days*  notice to the other party,  except that in mi5demeanor cases the request may be made orally on the  record.  In the event  

             that a change of place of trial shall be ordered, the derk of the court in which the case is pending shall transmit to the clerk of the court to which  

             the  proceeding is transferred all papers in the proceeding, or duplicates thereof, and the prosecution shall continue  in that court.  



             Explanation of Changes:  We added  reference to AS  22.15.080 to make It applicable to misdemeanors.  Venue was  previously addressed in  

             DCCrR  l(e).  The Rule  19 standard  is more demanding than  the district court standard,  so we added an exception to allow oral motions in  

             misdemeanors as authorized in DCCrR  l(e).  



~  

 

(1)          VI.TRIAL 


             Rule 23. Trial by Jury or by the Court.  



             (a) Trial by Jury.* cases required to be tried  by jury shall be so tried  unless the defendant waives a jury trial.  Jn  felony  cases.  the waiver must  

             be in writing with the approval of the court and the consent of the state.   In misdemeanor cases. the waiver may be in writing or made on  the  

             record in open court,  



            Explanation of Changes: The changes in this rule clarify that felony waivers must still be in writing and that misdemeanors waivers may be in  

            writing or made orally on the  record as provided in DCCrR  l(d) 

              



             Moving DCCrR  1 to Criminal Rules                                                                                                                                                         Page lOofll  

             DRAFT 12-28-2012  

 ...  

 ~  


----------------------- Page 20-----------------------

Criminal  Rules Committee Meeting Minutes                  *EXCERPT*                                        Page  1of8  

May 6,  2013  



 1.  Changes to  District Court Criminal Rules (Draft SCO  1799)  



Background:  At   its  March   15  Rules  Conferencet  the  supreme  court  requested  that  this  

committee  review  draft  SCO  1799.               That  SCO  would  rescind  the  remaining  District  Court  

Criminal  Rules,  make  supportive  amendments  to  Criminal  Rules  5,  5.1,   10,  19,  and  23  that  

incorporate the  substance  of  District  Court  Criminal  Rule  1,  and  replace  references  to  District  

Court  Criminal  Rule   1  in   Minor  Offense  Rules  5  and  6. 1               The  supreme  court  previously  



discussed that with  the establishment of the  Rules of Minor Offense Procedure, separate  District  

Court   Criminal   Rules  would          no   longer  be   necessary.   Consistent  with   that   expectation,  

administrative staff prepared this rule proposal.  



The  rule change was  presented directly to the  supreme court as  a minor rule change  because it  

does  not change  the  substance of the  existing  rule  provisions.  Instead, significant provisions of  

District  Court  Criminal  Rule  1 are  moved to  logical  places within  the  Criminal  Rules.  Rule  1 is  

the  only  District  Court  Criminal  Rule  that  offers  specific  guidance  on  procedure  in  the  district  

court.  (Rule 4  provides for  the  title  of the  rules;  Rule  6 repeats  the  language  in  Criminal  Rule  

52.)  Only  those  provisions  of  Rule  1 that  offer  specific  guidance  were  carried  over  to  the  

Criminal  Rules. The  proposal's aim  is modest.  



Overall,  the  court  was  supportive  of  the  proposal,  but  it  wanted  additional  review  by  this  

committee  to  make  sure  that  it  was   not  missing  anything.   In  particular,  the  court  wanted  

committee  input on  the  provisions for waiving  a trial  by jury  in  Criminal  Rule  23.  The  proposal  

carries over the waiver language for misdemeanors from  the current District Court Criminal Rule  

 1(d).  That  standard  differs  from  the  felony  waiver  standard.              This  committee  was  asked  to  

address  if  the  standards  are-in fact  or practice-different; and  if so,  should  they  be  aligned to  

the felony standard?  



The  court would  appreciate the  committee's  input on  its specific questions as well  as  any  other  

concerns the committee may have.  



 Discussion:  This  item  was   the  last  agenda  item  that  the  committee  reached  during  the  

meeting.  It  made  time  for  the  discussion  in  consideration  of the  court's  interest  in  taking  final  

action on this  proposal before the  publication deadline for the rule book.  



 Criminal  Rule  5(c).       The  committee  members  quickly  raised  issues  with  the  existing  rule  

language  (taken  from   District  Court  Criminal   Rule   1)  regarding  magistrates'  ability  to  try  

misdemeanor  cases.   Rather  than  advising  that  a  misdemeanor  defendant  has  a  right  to  

"demand to  be tried  before a district court judget"  the case  should  be assigned to  a district court  

judge  as  the  default.2      No  demand  should  be  necessary.  The  consensus  expressed  was  that  



 misdemeanor cases  should  be  assigned  to  a magistrate for  trial  only  after the  defendant  has  

given  consent  in  writing  to  be  tried  before  a  magistrate.  Members  suggested  further  that  the  

judicial  appointment  order  could  be  an  appropriate  place to  advise  or  remind  the  defendant of  

the option of having the case  heard by a magistrate.  There  is no pre..trial order in misdemeanor  

cases.  The  only  hearing before trial  may be the  calendar call.  Consequently,  last minute delays  

can arise if  a case is assigned to a magistrate without the defendant's consent.  



 1 The changes to  Minor Offense Rules 5 and 6 were  not presented to the supreme court  initially.  



They were  added  upon discovery of the  D.Ct.Cr.  R.  1 references.  



2  

  A member reported one instance where the court refused to  appoint a district court judge.  



                                                          Attachment C                                                       16  


----------------------- Page 21-----------------------

 Criminal  Rules Committee Meeting Minutes                  .. EXCERPT-                                       Page 2 of 8  

 May 6,  2013  



 Because  the  defendant  should  not  have  to  demand  to  be  tried  by  a  district  court judge,  the  

committee  questioned  whether  it  was  necessary  or  relevant  at  the  time  of  arraignment  to  

address the  magistrate issue.   It unanimously agreed to  delete the  proposed added  language at  

Criminal  Rule  5(c)(3)(E).   The  consensus  was  that  there  is  too  much  information  presented to  

the  defendant  at  that  initial  appearance;  the  waiver  information  may  be  more  relevant  or  

meaningful to the  defendant later.  



Members  also  supported  generally  streamlining  the  language  in  Rule  S(c).  Judge  Mannheimer  

proposed  edits to  tighten  the  presentation of the  information that  "the judge  or magistrate shall  

inform  the  defendanf'  of.           He  also  suggested  excising  proposed  items  (c)(3)(8)(1)-(iii)  as  

unnecessary explanations of substantive  law, and eliminating subparagraph  (c)(3)(C)  since that  

                                                                                                              1  



language appears  later in  the  rule at  paragraph  (e)(2).   Judge  Mannheimer suggested  that the  

language  of  proposed  paragraph  (c){5)  no  longer fit  with  the  other  remaining  paragraphs  and  

should  be moved.  But  no suggestions were  offered where that language should go.  



 In  the  course  of  its  discussion  of arraignments.  the  committee  pondered  the  right  to  counsel,  

when  it  attaches,  and  bail.  Judge  Swiderski  explained  that  when  counsel  is  not  present,  the  

judge  will  generally  enter a  plea  of  not guilty for the  defendant and  avoid  substantive  matters.  

Some expressed concern that  if bail  is set at arraignment,  before the defendant has a chance to  

retain  or  consult  with  counsel,  that  the  defendant  may  be  disadvantaged  later in  terms  of the  

ability to  request  a bail  review.  Judge Swiderski  noted  that  he  had  never had  a case where  an  

 unrepresented defendant asked that he  not set bail at arraignment.  



 Criminal Rule  5(f)(4).   Moving on,  the committee turned to the  new language proposed as  Rule  

5(f)(4).  As  with  the  language  the  committee  deleted  at  Rule  5(c)(3)(E),  the  committee  had  

problems with  this  paragraph.  In particular, the group took  issue with  the  second sentence as a  

description of how things should or do proceed.  Consistent with the earlier discussion. the group  

noted  that  the  magistrate  should  not  hold  the  case  in  abeyance  until  a  district  court  judge  

become  available  if the  defendant does  not  consent  to  be  trled  before  a magistrate;  the  case  

should  not  be  assigned  to  a  magistrate  in  the  first  place  absent  the  defendant's  consent.  

 Members  suggested  that  the  first  sentence  of  the  paragraph  could  be  re-written  to  better  

emphasize  that  concept.  As  with  the  earlier discussion,  the  committee was  not convinced  that  

this  information was  helpful at arraignment.  



 It agreed that the  information needs to  be shared at some point,  but did not specify where  in the  

 rules  it  might  belong.  The  committee  wants  to  avoid  situations  where  a case  is  set  for  trial  

before  a magistrate  but then  needs  to  be  re-scheduled  at the  last minute upon  discovery  that  

the defendant does  not consent.  



 Criminal Rule  23(a).  The  committee  turned  its  attention  next to  the  court's  specific  questions  

about the  standards for waiving  a jury trial  in  misdemeanor and felony  cases,  as  it relates to  the  

suggested  revisions  to  Criminal  Rule  23.              The  court's  first  question  for  the  committee  was  

whether the waiver standards differ?  The  language in the current district court rule provides that  

the defendant's waiver may be in writing  or made on the  record in open court.  But Criminal  Rule  

23(a)  requires  that  the  waiver  be  in  writing  with  the  approval  of the  court  and  consent  of  the  

state.3  



Opinions differed  as  to  whether the  current district court  rule  included the current  Criminal  Rule  

23(a)  consent  and  approval  standards.  Judge  Mannheimer took  the  position  that  Rufe  23(a)'s  



3  There  was  some  debate  over  the  existing  Rule 23(a)  language  and  whether  the  court  could  



refuse  to  accept  a waiver  agreed  to  by  the  parties.  But  given  that  courts  are  routinely  called  

upon to  inquire into and accept waivers,  the  issue was  dropped.  



                                                                                                                             17  

                                                          Attachment C  


----------------------- Page 22-----------------------

  Criminal  Rules Committee Meeting Minutes                     *EXCERPT*                                           Page 3 of 8 
 

  May 6,  2013 
 



 consent and  approval  requlrement applied to  both  misdemeanor and felony cases1                               based on  the 
 



                                                                                  11  

  language  in  District  Court  Criminal  Rule  1 providing  that   Wherever  practicable  the  Rules  of 
 

 Criminal Procedure shall apply to criminal actions within the jurisdiction  of the district courts."  He 
 

 suggested  that  the  only  difference was  that  in  misdemeanor cases,  the  waiver  need  not  be  in 
 

 writing.  Other members suggested that the differences were  broader. 
 



  Most agreed  that  it was  uncommon for a defendant to waive  a jury.  Mr.  Olson of OSPA reported 
 

 that  he  had  been  asked  for  consent  in  the  past  and  never  objected.  But  Ms.  Franklin  of  the 
 

 municipal  prosecutor's  office  reported  that  she  is  never asked  for  consent.                     Her office  handles 
 

 70%  of the  misdemeanor cases  in  Anchorage.                      Members  allowed  that  the  practice  or  custom 
 

 may vary  in different locations.  For some,  it would  be a change to require consents or approval. 
 



. The  committee  experimented  with  revised  language  for  Rule  23(a)  to  make  the  consent  and  

 approval  requirements clearly apply in all cases,  including as follows:  



           (a)       Trial  by Jury*. Cases  required to  be tried  by jury  shall  be so  tried  unless  

           the defendant waives  a jury trial with  the  approval  of the court and the  consent of  

           the  stateqovernment.  Jn   misdemeanor  cases.  the  waiver  may  be  in  writing  or  

            made on  the  record  in open  court.  In felony  cases.  the waiver  must be  in writing:.  

           with  the  appreval  ef tt:le  set:1Ft   aRd  tt:le  oeAseAt  ef  the  state.  IR   FRisdemeanor  

           cases. the waiver mav ee  in writina  er made en tt:ae  reoerd  in eeen  court.  



  But rather than  recommend that  change  or similar,  the  committee  opted to  leave the  proposed 
 

  language-which  several  members  found  ambiguous-essentially  as  is,  though  "staten  would 
 

 be replaced with  "government": 
 



            (a)      Trial  by Jury*. Cases required to  be tried  by jury  shall  be so tried  unless  

           the  defendant waives  a jury  trial.  In felony  cases.  the waiver  must  be  in writing  

           with  the   approval  of  the  court  and  the  consent  of  the  governmentstale.   In  

           misdemeanor cases.  the waiver  may be  in writing  or made on  the  record  in open  

           court.  



 This  result reflects a certain  ambivalence on the  part of the  committee with  regard to the  court's 
 

 second question:  whether the  court's approval  and  the  state's consent should  be  required for a 
 

 misdemeanor defendant's waiver?                   The  committee  was  not  of one  mind  and  was  hesitant to 
 

 expressly  call  for  what  would  be  a  change  in  practice  in  at  least  some  areas  of the  state.  It 
 

 preferred to  leave it ambiguous. 
 



  Earlier in  the  discussion,  Mr.  Murtagh  had  expressed  his  general  preference that  any  time  an 
 

 important right  is waived,  it should  be in writing,  since that  process tends to  elicit  more thought 
 

 and  reflection.  But  the  committee  did  not  pursue  that  change.  (The  limited  purpose  of  the 
 

 proposal was  to  move  the  existing  substantive  provisions of District Court  Criminal  Rule  1 into 
 

 the  Criminal Rules.) 
 



  Criminal Rule  23(b). As time was  running out,  a committee  member queried whether the  parties 
 

  in misdemeanor cases should be permitted to  stipulate, with the courtts consent, to having fewer 
 

 than  six jurors.  The  rule  provides that  in felony  cases,  the  parties may stipulate to  a jury  of Jess 
 

 than  12. Lacking time,  the  committee did not attempt to resolve the question. 
 



  In  light of the  upcoming  rule-book publication deadline,  the  committee  agreed to  share the  work 
 

  it was  able  to  complete  with  the  court.  The  proposal  with  the  committee  revisions  is  shown 
 

 below: 
 



                                                                                                                                   18  

                                                               Attachment C  


----------------------- Page 23-----------------------

Criminal  Rules Committee Meeting Minutes             *EXCERPT*                                     Page 7of8  

May 6,  2013  



         (~+)    The  judicial  officer  shall  ask  the  defendant  to  enter  a  plea  pursuant  to  

         Criminal Rule  11,  



         (~~)     If the defendant pleads not guilty, the  court shall fix  a date for trial at such  

         time  as will  afford the defendant a reasonable opportunity to  prepare.  



         (4)  IJ  the  defendant  is  sharqed  witl=t  a  misdemeanor.  the  eJefendant  FRust  gi'Je  

        written  conseRt to  have  the  Gase  tried  baf.ore  a FRaaistrate.  If a defendant  daee  

         net  aive  Sl:Joh   'A'ritten  sensent,  the  magistrate  shalJ   hold  Iha  proseedinga  in  

         abeyance      until  a    distriet  jl:Jeae  besemes       availabte    te   tn*  tt=le  ease.  

         [NOTE: The  committee favored  removing or moving this  paragraph as  ill-timed at  

         arraignment.     In  addition,  the  standard  presented  is  not  correct.       Because  a  

         defendant  must  first  consent  to  have  a  case  tried  by  a  magistrate,  the  case  

         should be assigned initially to a judge,  not to a magistrate.)  



         ( 4)  The  judicial  officer  shall  inform  the  defendant  that  the  defendant  may  

         peremptorily  disqualify  the  district  judge  or  magistrate  to  whom  the  case  is  

         assigned pursuant to AS  22.20.022.  



         Rule 5.1.   Preliminary Examination in  Felony Cases *  



         ****  



         Rule 10. Felony Arraignment in Superior Court  



         ****  



         Rule 19.  Change of Venue-Application to Court  



        All applications for change of place of trial  in the cases  provided by AS  22.10.040  

         or AS  22.15. 080 shall  be made by motion,  supported  by affidavit,  upon five  days'  

         notice to  the  other party.  exceot that  in  misdemeanor cases  the  request  may  be  

         made  orally  on  the  record.  In  the  event  that  a  change  of  place  of trial  shall  be  

         orderedt the  clerk of the  court  in which  the  case  is  pending  shall  transmit  to  the  

         clerk  of  the   court  to  which  the   proceeding  is  transferred  all   papers  in  the  

         proceeding.  or  duplicates  thereof,  and  the  prosecution  shall  continue  in  that  

         court.  



         Rule 23. Trial by Jury or by the Court  



         (a) Trial  by Jury*. Cases  required to  be tried  by jury  shall  be so tried  unless the  

         defendant waives  a jury  trial.  Jn  felony  cases.  the waiver  must  be  in writing  with  

         the   approval    of   the  court   and    the   consent    of   the  governmentstate.       In  

         misdemeanor cases.  the waiver  may be  in writing  or made on  the  record  in open  

         court.  

         [NOTE:  The  committee  opted  to  leave  the  rule  ambiguous,  at  least  for  now.  

         Opinions differed  as to whether the  current district court rule  included the current  

         Criminal  Rule 23(a) consent and approval standards.]  



         (b)  Jury  of  Less  Than  Twelve.  In  felony  cases.  J1:1ries   iuries  shall  be  of  12  

         persons"'  but  at  any  time  before  verdict  the  parties  may  stipulate  in  writing  with  



                                                   Attachment c  

                                                                                                                  22  

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