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McMullen v. State (7/27/2018) ap-2609

McMullen v. State (7/27/2018) ap-2609


         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

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                                                                  Court of Appeals No. A-12955  

                                   Appellant,                    Trial Court No. 3PA-17-1209 CR  


                                                                             O P I N I O N  


                                   Appellee.                         No. 2609 - July 27, 2018  

                  Appeal from the District Court, Third Judicial District, Palmer,  


                  David Zwink and Vanessa White, Judges.  

                  Appearances:  Windy  Hannaman   (initial  brief)  and  Renee  


                  McFarland (supplemental brief), Assistant Public Defenders,  

                  and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  the  

                  Appellant.     Donald  Soderstrom,  Assistant  Attorney General,  


                  Office of Criminal Appeals, Anchorage, and Jahna Lindemuth,  


                  Attorney General, Juneau, for the Appellee.  

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



                  Judge WOLLENBERG.  

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

                      Daniel Matthew McMullen appeals the denial of his judicial peremptory                                 



                     Under Alaska Criminal Rule 25(d), the prosecution and the defense in a  


criminal case are each entitled to one change of judge as a matter of right.  In this case,  


the court denied McMullen's challenge of District Court Judge John W. Wolfe on the  


ground  that  McMullen  had  previously  exercised  a  peremptory  challenge  against  a  


different judge, Superior Court Judge Kari Kristiansen.  


                      Onappeal,McMullen arguesthat his prior peremptory challengenevertook  


effect because, two days after he challenged Judge Kristiansen, and before his case was  


reassigned to another judge, the State dismissed the only pending felony charge against  


him.       At  the  next  scheduled  hearing,  his  case  (which  now  consisted  of  a  single  


misdemeanor  charge)  was  assigned  to  Judge  Wolfe,  whom  McMullen  promptly  


challenged.           McMullen argues that since his initial peremptory  challenge of Judge  


Kristiansen was never ruled on, that challenge became moot once the felony count was  


dismissed  and  his  case  was  reassigned  to  a  district  court  judge.                                        Thus,  McMullen  


contends that he was entitled to exercise a new peremptory challenge.  


                      However, for the reasons explained in this opinion, we disagree with the  


premise that McMullen's peremptory challenge of Judge Kristiansen became moot once  


the State dismissed the felony charge.  Accordingly, McMullen's timely challenge of  


Judge Kristiansen  remained effective, and he was not entitled to exercise a second  


challenge against Judge Wolfe.  


                      We therefore affirm the denial of McMullen's peremptory challenge of  


Judge Wolfe.  

      1    See Alaska R. App. P. 216(a)(2).  

                                                                   - 2 -                                                               2609

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

            Underlying facts   

                        In July 2017, McMullen was charged with one count of second-degree                                       


misconduct involving a controlled substance, a class B felony,                                                                                 

                                                                                                                and one count of fourth- 



degree  misconduct  involving  a  controlled  substance,  a  class  A  misdemeanor. 


McMullen's first appearance, District Court Judge William Estelle assigned a superior  


court judge, Judge Kristiansen, to the case for trial, and he scheduled a preliminary  



hearing in the district court. 


                        Twodayslater,McMullenfiled atimely "NoticeofChangeofJudge"form,  



peremptorily challenging Judge Kristiansen. 


                        Before McMullen's case was reassigned to another superior court judge,  


the State dismissed the felony charge against McMullen, leaving only the misdemeanor  


charge pending.  Accordingly, when the parties appeared in court for what would have  


been the felony preliminary hearing, Judge Estelle reassigned McMullen's case to a  


district court judge, Judge Wolfe, and set the case for a district court pretrial conference.  


                        That same day, McMullen filed a second Notice of Change of Judge, this  


time challenging Judge Wolfe.  


                        District Court Judge David Zwink - and Superior Court Judge Vanessa  


White, on reconsideration - denied McMullen's challenge of Judge Wolfe, ruling that  


McMullen had already exercised his oneperemptory challengeallowedbyCriminal Rule  


25(d) when he challenged Judge Kristiansen.  

      2     AS 11.71.030(a)(1)(C) & (d).  

      3     AS 11.71.050(a)(4) & (b).  

      4     Alaska R. Crim. P. 5(e)(2).  

      5     See AS 22.20.022(c); Alaska R. Crim. P. 25(d).  

                                                                         -  3 -                                                                    2609

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

                      McMullen now appeals the denial of his peremptory challenge of Judge                                       


           A preliminary question regarding the validity of the initial assignment to  

           Judge Kristiansen  


                      Following the initial  briefing in this case, we asked the parties to file  


 supplementalbriefingon thefollowing question: whether thepre-indictment assignment  


of McMullen's case to a superior court judge constituted a valid assignment for purposes  


of exercising a peremptory challenge in a felony case.  Under AS 22.20.022(c) - the  


 statute  establishing  a  substantive  right  to  peremptorily  disqualify  a  judge  -  a  


peremptory challenge must, absent good cause, "be filed within five days after the case  


is at issue upon a question of fact, or within five days after the issue is assigned to a  


judge, whichever event occurs later."  Under the Alaska Supreme Court's decision in  


Morgan v. State, and this Court's decision in State v. Watt, McMullen's pre-indictment  


felony case was not yet "at issue on a question of fact" in the superior court for purposes  



of AS 22.20.022(c).   



                      In their supplemental briefing, both parties agreethat McMullen's case was  


validly assigned to Judge Kristiansen while his case was still in pre-indictment status,  


and that McMullen could properly challenge Judge Kristiansen at that time. The parties  


point to a footnote in Morgan, in which the supreme court stated:  


                      [W]e do not mean to indicate that a peremptory challenge  


                      filed in the earlier felony complaint proceeding would not  


                      have been effective in the subsequent indictment proceeding.  


                      But we do  think  that Morgan  was entitled  to  rely  on  the  


                      wording of the rule, and exercise his peremptoryrights within  

      6    Morgan v. State , 635 P.2d 472 (Alaska 1981); Watt v. State, 61 P.3d 446 (Alaska App.  


                                                                 - 4 -                                                             2609

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

                         the five-day period as applied to the indictment, rather than                                          

                         as   applied   to   the   earlier   felony   complaint  which   was   not  



                         This footnote convinces us that this case does not hinge on the timing of  


Judge  Kristiansen's  assignment.                                As  we  noted  in  Smith  v.  State,  a  party's  right  to  


peremptorily  challenge  a  judge  "is  not  limited  to  judges  who  have  been  formally  


assigned to the case"; a party may exercise a peremptory challenge even prior to an  



official assignment.                      Thus, even  absent a formal assignment of this case to  Judge  


Kristiansen  at  McMullen's  first  appearance,  McMullen  could  validly  exercise  a  


peremptory challenge of Judge Kristiansen.  


                         We therefore agree with the parties that the real question in this appeal is  


whether McMullen's peremptory challenge of Judge Kristiansen was effective in light  


of subsequent events.  


             Why we conclude that McMullen's challenge of Judge Wolfe was properly  



                         On  appeal,  McMullen  argues  that  his  peremptory  challenge  of  Judge  


Kristiansen  was  rendered  moot  when,  prior  to  a  ruling  on  his  challenge,  the  State  


dismissed the only pending felony charge against him and his case was reassigned to a  


district court judge. McMullen argues that, as a result, he was entitled to exercise a new  


peremptory challenge against Judge Wolfe.  

      7     Morgan , 635 P.2d at 476 n.5.  

      8     Smith v. State, 887 P.2d 979, 981 (Alaska App. 1994) (citing                                                   Gieffels v. State           , 552  

P.2d 661, 669 (Alaska 1976)); cf. Schmid v. Miller, 619 P.2d 1, 2 (Alaska 1980) (concluding   

that the defendant's peremptory challenge was timely filed since it preceded the judge's           

official assignment to the case).  

                                                                            -  5 -                                                                      2609

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

                              The underlying premise of McMullen's argument is that a peremptory                                                                         

challenge is not self-executing, but instead must be "ruled on" to determine whether it                                                        

is timely, to ensure that the party has not already exercised a challenge, and to determine                                                                                  

whether   the   party   has   waived   the   challenge   by  participating   in   certain   substantive  


proceedings in front of the challenged judge.                                                            


                              In  contrast,  the  State  argues  that  McMullen's  challenge  of  Judge  


Kristiansen took effect immediately upon its filing.  The State's argument is premised  


on the notion that when an apparently timely challenge is made, the challenged judge  



must be immediately removed from the case (with limited exceptions).                                                                                                         The State  


therefore contends that McMullen had already exhausted his sole peremptory challenge  


by the time his case was reassigned to Judge Wolfe.  


                              We need not resolve the question of precisely when a peremptory challenge  


becomes effective.  Even if we concluded that a peremptory challenge does not become  


effective until there has been a formal ruling as to its validity (which in this case occurred  


after the State dismissed the felony charge), we disagree with McMullen that the transfer  


of his case to the district court rendered his challenge of Judge Kristiansen moot.  


                              A superior court judge is authorized to preside over trials  in  both  the  



superior court and the district court.                                              Thus, McMullen's challenge of Judge Kristiansen  


was not moot after the transfer of his case to the district court; Judge Kristiansen could  

        9      See Alaska R. Crim. P. 25(d) (setting out the procedural requirements for a judicial  

peremptory challenge).  

        10     See Alaska R. Crim. P. 25(d)(3) ("When a request for change of judge is timely filed                                                                                       

under  this  rule,  the  judge  shall  proceed  no  further  in  the  action,   except  to  make  such  

temporary orders as may be absolutely necessary to prevent immediate and irreparable injury              

before the action can be transferred to another judge.").  

        11     See AS 22.10.020(a); AS 22.15.060(b).  

                                                                                            -  6 -                                                                                       2609

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

 still have been his trial judge, or she could have covered for Judge Wolfe in a pretrial                                                   

hearing or other proceeding.                      12  


                        Additionally, Judge Kristiansen might still have heard McMullen's case if  


the State later decided to indict McMullen on the dismissed felony charge and the case  


was transferred to the superior court.  As the Alaska Supreme Court has recognized,  


"where two proceedings involve the same defendant and the necessity of proving the  


 same facts and issues, a judge who was peremptorily challenged in the prior proceeding  


is automatically disqualifiedat any proceedingagainst the defendant at which those same  



charges are at issue."                   As we noted earlier, the supreme court in Morgan relied on this  


language to conclude that a peremptory challenge filed against a superior court judge at  


the  felony  complaint  stage  would  be  effective  in  a  subsequent  post-indictment  



                                                              This  fact  gives  McMullen's  challenge  of  Judge  

proceeding  in  the  same  case. 



Kristiansen ongoing effect. 


                        McMullen argues that because no one acted on his peremptory challenge  


of Judge Kristiansen while his case was still in the superior court, he was deprived of his  

      12    See, e.g.,  Juarez v. State , 193 P.3d 773, 774-75 (Alaska App. 2008) (superior court   

judge assigned misdemeanor case to himself for trial).  

      13    See Morgan v. State, 635 P.2d 472, 476 n.5 (Alaska 1981) (citing McKinnon v. State ,  


 526 P.2d 18, 25 (Alaska 1974)); see also State v. Galbraith, 199 P.3d 1216, 1219 (Alaska  

App. 2009) (holding that where the original indictment was dismissed due to the defendant's  


incompetence to stand trial, and a subsequent indictment was issued, the judge who was  


removed from the original proceedings due to a peremptory challenge remained disqualified  

in the later proceedings on the second, identical indictment).  

      14    Morgan , 635 P.2d at 477-78.  

      15    See Fairbanks Fire Fighters Ass'n, Local 1324 v. Fairbanks, 48 P.3d 1165, 1167  


(Alaska 2002) (noting that an issue is moot only if "it is no longer a present, live controversy,  


and the party bringing the action would not be entitled to relief, even if it prevails").  

                                                                        -  7 -                                                                  2609

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

right to a peremptory challenge under Criminal Rule 25(d). But we see no reason to treat                                                                                  

a defendant whose case is quickly reassigned to another superior court judge differently                                                                      


from a defendant whose case reassignment is slightly delayed.                                                                                                                    

                                                                                                                                      Neither the fact that a  


criminal case is transferred from the superior court to the district court nor the timing of  


that transfer entitles a party to an additional challenge.  


                            We acknowledge that, absent a future indictment in this case, the likelihood  


of Judge Kristiansen sitting on McMullen's case in lieu of Judge Wolfe is low, since  


there are two other district court judges in Palmer. But this would not necessarily be true  


in  a  smaller  court  location,  where  there  is  only  one  district  court  judge.                                                                           In  these  


locations, a successful peremptory challenge of the district court judge assigned to the  


case after dismissal of the felony charges could result in reassignment of the case to the  



very superior court judge that the defendant originally sought to remove from the case. 


                            We note that under current law (the  Watt and Morgan  decisions that we  


discussed earlier), McMullen could have waited to exercise his peremptory challenge  


untilafter hewasindicted. Had McMullen refrainedfromchallenging JudgeKristiansen,  


he would have been entitled to either challenge Judge Wolfe when his case became a  


misdemeanor  case  and  was  assigned  to  the  district  court,  or  to  challenge  Judge  


Kristiansen if he was subsequently indicted on the felony charge and his case was  

       16     Cf.  Hickox  v.  Superior  Court,   505  P.2d  1086,  1089  (Ariz.  App.  1973)  (despite  

expiration of   judge's pro tem service two                                            weeks after party filed peremptory challenge                             

against that judge, party not entitled to have right to peremptory challenge reinstated, even  

though subsequent events essentially rendered that challenge unnecessary).  

       17     See, for example, Michael v. State , 2016 WL 4937867 (Alaska App. Sept. 14, 2016)  

(unpublished), in which pretrial hearings in a Bethel misdemeanor case were held before a  

superior court judge before being assigned to a district court judge for trial.  

                                                                                    -  8 -                                                                                2609

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


transferred to the superior court for arraignment on that indictment.                                                                                                                                                                                                                                                               At that point,                        

McMullen's case would have been "at issue upon a question of fact" in the superior                                                                                                                                                                                                                                                                             

court.   And, assuming McMullen had not previously exercised a peremptory challenge,                                                                                                                                                                                                                                                                    

or waived his right to challenge Judge Kristiansen by participating before her in any of                                                                                                                                                                                                                                                                                                    

the substantive proceedings set out in Criminal Rule 25(d)(5), the five-day time limit for                                                                                                                                                                                                                                                                                               

challenging Judge Kristiansen would have started anew.                                                                                                                                                                             

                                                            But because McMullen                                                                                      did  challenge Judge Kristiansen, he exhausted the                                                                                                                                                                

one peremptory challenge to which he is entitled.                                                                                                                                                                                        He was not thereafter entitled to                                                                                                                  

exercise another peremptory challenge against a different judge.                                                                                                                                                                                                     


                                                            We AFFIRM the denial of McMullen's peremptory challenge of Judge  



                18             Watt, 61 P.3d at 447-48; see also Morgan, 635 P.2d at 476-77.   

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