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THE COURT OF APPEALS OF THE STATE OF ALASKA
GREGORY WALLACE, JR., )
) Court of Appeals No. A-4321
Appellant, ) Trial Court No. 3KO-S88-115CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1221 - May 1, 1992]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kodiak,
Donald D. Hopwood and Brian C. Shortell,
Judges.
Appearances: Philip M. Pallenberg,
Assistant Public Defender, Kodiak, and John
B. Salemi, Public Defender, Anchorage, for
Appellant. Peter C. Gamache, District
Attorney, Kodiak, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
Gregory Wallace, Jr., was convicted of burglary in the
second degree in 1989 in Juneau. Superior Court Judge Rodger W.
Pegues, who resides in Juneau, sentenced Wallace. As part of
Wallace's sentence, Judge Pegues placed Wallace on probation. On
September 12, 1991, the state filed a petition to revoke
Wallace's probation. The state filed the petition in Juneau.
Wallace resided in Kodiak. Wallace requested that the case be
transferred to Kodiak under Alaska Criminal Rule 20. The state
agreed to the transfer, and the court transferred the case to
Kodiak.
On January 10, 1992, Wallace appeared in Kodiak before
Superior Court Judge Donald D. Hopwood. Wallace entered
admissions to two of the five allegations in the petition to
revoke probation. The state dismissed the remaining allegations.
Judge Hopwood ordered an updated presentence report. At this
point, counsel for Wallace told the court that she believed that
the change of venue to Kodiak had been only for the purpose of
having Wallace enter admissions to the petition, but not for
disposition. Judge Hopwood reviewed the court file and concluded
that the change of venue to Kodiak was both for adjudication and
disposition. He therefore set Wallace's sentencing for Kodiak on
February 11, 1992.
On January 14, 1992, Wallace filed a notice of change
of judge pursuant to Alaska Criminal Rule 25(d). On January 16,
1992, Judge Hopwood found that the notice was not timely filed.
Superior Court Judge Brian C. Shortell, the Presiding Judge of
the Third Judicial District, disapproved Wallace's notice of
change of judge on the ground that it was not timely and that
Wallace had waived his right to a peremptory challenge by
appearing before Judge Hopwood on January 10, 1991. Wallace
appeals to this court, contending that the trial court erred in
denying his peremptory challenge.
The state contends that Wallace did not have a right to
a peremptory disqualification of a judge in a probation
revocation proceeding. The state points out that in State v.
Sears, 553 P.2d 907, 910 (Alaska 1976), the supreme court decided
that probation revocation proceedings were not "criminal
proceedings" within the meaning of the Alaska Rules of Criminal
Procedure. Furthermore, a defendant on probation does not have a
right to peremptorily challenge the original sentencing judge.
Kvasnikoff v. State, 535 P.2d 464, 466 (Alaska 1975). However,
in this case Judge Hopwood is not the judge who originally
sentenced Wallace.
In Hastings v. State, 736 P.2d 1157, 1161-62 (Alaska
App. 1987), we questioned whether a defendant is entitled to a
peremptory challenge in a post-conviction relief proceeding. We
also questioned whether Alaska Appellate Rule 216 required an
expedited appeal of the denial of a peremptory challenge in such
a proceeding, and whether the criminal rules, such as Criminal
Rule 25(d), applied to peremptory challenges. 736 P.2d at 1161
n.1.
For purposes of deciding this appeal we will assume,
without deciding, that Wallace had a right to a peremptory
challenge in a probation revocation proceeding where the judge
before whom he appeared was not the judge who originally
sentenced him. However, we find that we agree with the state
that a probation revocation proceeding is not a proceeding where
criminal rulings apply. It follows that Wallace's right to
peremptorily challenge Judge Hopwood was governed by Alaska Civil
Rule 42(c) rather than Criminal Rule 25(d).
We believe that it also follows that Wallace cannot
file a peremptory challenge appeal under Appellate Rule 216.
Appellate Rule 216 provides for expedited appeals for extradition
appeals and peremptory challenge appeals. Appellate Rule
216(b)(2) provides that a "`peremptory challenge appeal' is an
appeal by a criminal defendant from an order denying the
defendant's motion for change of judge under Criminal Rule
25(d)." Since we have concluded that Wallace's right to a
peremptory challenge was under Civil Rule 42(c), not Criminal
Rule 25(d), Wallace is not entitled to bring a peremptory
challenge appeal. Wallace's only remedy would be either to ask
us to grant a petition for review to review the issue at this
time, or to appeal after the probation revocation proceedings are
concluded.
We believe that this decision is supported not only by
the plain meaning of Appellate Rule 216(b)(2) but also by sound
policy considerations. In Morgan v. State, 635 P.2d 472, 480-81
(Alaska 1981), the supreme court concluded that when the court
denies the defendant's request for a peremptory challenge, the
defendant should be allowed to file an expedited appeal under
Appellate Rule 216. In Washington v. State, 755 P.2d 401, 403
(Alaska App. 1988), we held that the defendant's exclusive remedy
when the court denied his request for a peremptory challenge was
to immediately file an expedited appeal under Appellate Rule 216.
However, the reasoning of Morgan and Washington applies only to
defendants facing a criminal trial. When a defendant in a
criminal case exercises a peremptory challenge, and that
peremptory challenge is denied, if the trial goes forward before
the challenged judge and an appellate court later reverses the
trial court's denial of the peremptory challenge, it is likely
that the parties will have gone through a lengthy trial
proceeding that will have to be repeated. Therefore, the courts
have created an expedited peremptory challenge appeal, which
requires the defendant to immediately bring a peremptory
challenge appeal that the court will treat on an expedited basis.
However, a probation revocation proceeding is normally
less involved than a criminal trial. The defendant does not have
a right to a jury trial in a probation revocation proceeding, and
such proceedings are usually much less time consuming than a
criminal trial. Such proceedings may involve minor violations of
probation, or the trial judge may find no violation at all.
Furthermore, even if the trial judge finds a violation, the judge
may decide not to make any significant change in the defendant's
probation. See Trumbly v. State, 515 P.2d 707, 709-10 (Alaska
1973). Under these circumstances, it appears to us that where
the court denies the probationer's peremptory challenge, the
better policy is to allow the court to proceed through the
probation revocation to its conclusion. After the conclusion of
the probation revocation proceeding, the defendant may appeal
from the trial court's denial of a peremptory challenge. If
there are strong reasons for this court to consider the trial
court's denial of a peremptory challenge before the conclusion of
the probation revocation proceeding, the defendant can petition
for review to this court.
We accordingly conclude that a probation revocation
proceeding is not a criminal proceeding for purposes of applying
Criminal Rule 25(d), the peremptory challenge provision under the
criminal rules. Accordingly, Wallace's right to peremptorily
challenge Judge Hopwood arose under Civil Rule 42(c). Wallace
therefore had no right to appeal Judge Hopwood's denial of his
peremptory challenge as an expedited appeal under Appellate Rule
216. Wallace must either file a petition for review to this
court asking us to hear his peremptory challenge appeal as an
interlocutory appeal, or wait until Judge Hopwood issues a final
judgment on his probation revocation and appeal from that
judgment. We accordingly conclude that we must dismiss Wallace's
appeal.
The appeal is DISMISSED.
