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Phillips v. State (5/2/2008) ap-2163

Phillips v. State (5/2/2008) ap-2163

     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

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) Court of Appeals No. A-10180
Appellant, ) Trial Court No. 3CO-06-093 Cr
v. )
) O P I N I O N
Appellee. ) No. 2163 May 2, 2008
          Appeal  from the Superior Court,  Third  Judi
          cial  District,  Cordova,  Eric  A.  Aarseth,

          Appearances:  Paul A. Maslakowski,  Assistant
          Public  Advocate, Palmer, and Rachel  Levitt,
          Acting  Public Advocate, Anchorage,  for  the
          Appellant.  No appearance for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          The  superior court denied Michael D. Phillipss request
to  exercise  a late-filed peremptory challenge against  Superior
Court  Judge Eric A. Aarseth, the judge assigned to preside  over
Phillipss  trial.   Phillips now seeks appellate  review  of  the
superior courts decision.
          Phillips  has  filed his appeal under Alaska  Appellate
Rule  216.   See Washington v. State, 755 P.2d 401,  403  (Alaska
App. 1988) (holding that an expedited appeal under Appellate Rule
216  is  the  sole  way a criminal defendant may  seek  appellate
review of the denial of a peremptory challenge).
          When   the   Appellate  Court  Clerks  Office  received
Phillipss  notice  of  appeal, a question  arose  as  to  whether
Phillips  was  entitled to appeal the superior courts  ruling  at
this  time   since no final judgment has yet been issued  in  his
          Although  Appellate Rule 216(a)(2) clearly states  that
the  expedited appellate procedures described in that rule  apply
to  [p]eremptory challenge appeals, subsection (c) of  Rule  216,
entitled  Jurisdictional Limitation, declares that Rule 216  does
not permit an appeal to be taken in any circumstances in which an
appeal  would  not  be permitted by [Appellate]  Rule  202.   And
Appellate  Rule  202(b)   the portion of Rule  202  that  governs
appeals  to  this Court  declares that [a]n appeal may  be  taken
[only] from a final judgment entered by the superior court or the
district court.
          Phillipss  case  has not yet gone to  trial;  no  final
judgment  has  been  issued  in  his  case.   Thus,  Phillips  is
apparently  barred from pursuing an appeal under  Appellate  Rule
216 at this time.
          See  Muller v. State, 478 P.2d 822, 824 (Alaska  1971),
holding that the superior courts denial of the defendants  motion
to  dismiss  the  charges with prejudice did  not  terminate  the
proceedings against [the defendants] and was in no sense a  final
judgment of the type contemplated by [Supreme Court] Rule 6   the
predecessor to current Appellate Rule 202.
          The  jurisdictional  limitation codified  in  Appellate
Rule  216(c)   that is, the rule that no appeal  can  be  pursued
under Rule 216 until the trial court has issued a final judgement
has  been  a  part of Rule 216 since it was first promulgated  in
1980.  See Alaska Supreme Court Order No. 439 (effective November
15,  1980)  (amending  and  re-codifying  the  Alaska  Rules   of
Appellate Procedure).
          When  Appellate  Rule  216 was  first  promulgated,  it
applied  only to extradition appeals and juvenile waiver appeals.
Subsection  (c)  of the rule was intended to make  sure  that  no
appeal  could  be taken until the superior court had  issued  its
final   decision   regarding  whether  to  order   a   defendants
extradition  to  another state, or had issued its final  decision
regarding  whether to waive juvenile jurisdiction  over  a  minor
(thus allowing the minor to be tried as an adult).
          The  denial  of  a  defendants request to  peremptorily
challenge  the  judge assigned to the defendants case  is  not  a
final judgement.  And, until 1981, the only way a defendant could
seek interlocutory review of such a denial was to file a petition
for  review.   In  other  words,  a  defendant  whose  peremptory
challenge  was denied could ask this Court to review the  matter,
but  interlocutory review was discretionary, not mandatory.   See
Rozkydal  v. State, 938 P.2d 1091, 1094 (Alaska App. 1997):   The
right of appeal means the right to require an appellate court  to
review  a lower courts decision.  The right of petition,  on  the
other  hand,  means  the right to request an appellate  court  to
review  a  lower courts decision  a request which  the  appellate
court  may  grant  or  deny as it sees  fit.   (Emphasis  in  the
          Then,  in Morgan v. State, 635 P.2d 472 (Alaska  1981),
the Alaska Supreme Court concluded that, given the special nature
of  the [judicial] disqualification right, it would be better  if
appellate  review of the denial of a peremptory  challenge  in  a
criminal case were governed by the expedited procedures laid  out
in  Appellate Rule 216.  Id. at 480 & n. 16.  The following  year
(1982),  the supreme court amended Rule 216(a) to add  peremptory
challenge appeals  as defined in Rule 216(b)(2)  to the  list  of
appeals governed by the rule.  See Alaska Supreme Court Order No.
511 (effective August 18, 1982).
          Based on the supreme courts decision in Morgan and  the
courts ensuing issuance of Order No. 511, it is obvious that  the
supreme  court intended to allow defendants in criminal cases  to
appeal the denial of a peremptory challenge even though the trial
court  had  not yet issued its final judgement.  Indeed,  Justice
Matthews  dissented  from the supreme courts  decision  to  issue
Order  No.  511 because he concluded that it was not  prudent  to
make an exception to the rule of finality to allow an appeal from
an order of this type.  Id.
          But  even  though the supreme court amended  subsection
(a)  of  Rule  216  so that it now includes peremptory  challenge
appeals,   the  supreme  court  made  no  conforming  change   to
subsection  (c)  the provision of Rule 216 that bars  any  appeal
unless the trial court has issued its final judgement.
          True, subsection (a) of Rule 216 declares that the rule
supersedes the other appellate rules to the extent that they  may
be  inconsistent  with this rule.  But the  problem  here  is  an
inconsistency  in the provisions of Rule 216 itself.   Subsection
(a)  of  the  rule allows a defendant to immediately  appeal  the
denial of a peremptory challenge, but subsection (c) of the  rule
declares that Rule 216 does not allow appeals except as permitted
by  Rule  202  i.e., unless the trial court has issued its  final
          When  different subsections of a statute or court  rule
are seemingly inconsistent with each other, an appellate court is
obliged  to  construe  the  subsections  so  as  to  resolve  the
inconsistency   if that is possible.  Anchorage  v.  Repasky,  34
P.3d 302, 315 (Alaska 2001).  Here, it is not.  Subsection (a) is
irreconcilably in conflict with subsection (c).
          Nevertheless, from the history described above,  it  is
apparent  that the supreme court intended to allow defendants  to
immediately   appeal   the  denial  of  a  peremptory   challenge
exempting  these appeals from the normal rule that no  appeal  is
allowed until the trial court has issued its final judgement.  We
therefore turn to another canon of statutory construction:
          [I]f the literal import of the text of an act
          is  inconsistent with the legislative meaning
          or  intent, ... courts will ordinarily modify
          the    statute   to   comport   with   [that]
          legislative intent.
          State  of  Alaska  v. Alaska Civil  Liberties
          Union, 978 P.2d 597, 613 n. 101 (Alaska 1999)
          (quoting  Norman  J. Singer, Sutherland  [on]
          Statutory   Construction   46.07   (5th   ed.
                    The   wording  of  Appellate   Rule
          216(c) can not be reconciled with the supreme
          courts clear intention to allow defendants to
          immediately appeal the denial of a peremptory
          challenge.   Consequently, we now  hold  that
          Appellate  Rule  216(c)  does  not  apply  to
          peremptory  challenge appeals as  defined  in
          Appellate Rule 216(b)(2).
                    Accordingly,  Phillipss  appeal  is
          accepted for filing.
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