NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, in order that corrections may be made
prior to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
LILIBETH R. TAN, )
) Court of Appeals No. A-5545
Appellant, ) Trial Court No. 3KO-94-327 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1423 - July 28, 1995]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Kodiak, Donald D. Hopwood and Karl S. Johnstone,
Judges.
Appearances: Allan R. Thielen, Assistant Public
Defender, Kodiak, and John B. Salemi, Public Defender, Anchorage,
for Appellant. Stephen B. Wallace, District Attorney, Kodiak,
and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and Mannheimer,
Judges.
MANNHEIMER, Judge.
Lilibeth R. Tan appeals the superior court's rejection
of her attempt to peremptorily challenge Superior Court Judge
Donald D. Hopwood. For the reasons explained below, we vacate
the superior court's ruling and remand this case to the superior
court for further proceedings.
On June 30, 1994, Tan was charged with four felonies.
The superior court appointed the Public Defender Agency to
represent her. In late August, Tan and the State reached a plea
agreement resolving the case. Under this plea bargain, Tan
agreed to waive her right to grand jury indictment and to plead
no contest to falsifying business records, AS 11.46.630(a)(1); in
return, the State would dismiss the other charges.
Having reached this plea agreement with the State,
Tan's attorney filed a pleading in the superior court entitled
"Request for Calendar Setting". Tan's pleading (which was
prepared on a pretyped or computerized form) stated that Tan's
attorney "hereby request(s) a time on the Court's calendar for
the purpose of change of plea sentencing; waiver of grand jury
before the first available Anchorage Superior Court judge".
(Words in normal type are part of the form document; words in
italics are additions by Tan's attorney.) This "Request for
Calendar Setting" was filed on August 30, 1994.
Two days later, on the afternoon of September 1, 1994,
Tan appeared in front of Kodiak Superior Court Judge Donald D.
Hopwood to sign the waiver of indictment and to plead no contest
to the charge of falsifying business records. Judge Hopwood
accepted Tan's waiver of indictment and then accepted her no
contest plea. The judge scheduled Tan's sentencing hearing for
December 6, 1994.
On September 6, 1994 (five days after the change-of-
plea hearing), Tan's attorney filed a pleading entitled "Notice
of Change of Judge (Peremptory Challenge)". In this pleading,
Tan's attorney attempted to challenge Judge Hopwood under Alaska
Criminal Rule 25(d). This pleading (like the earlier "Request
for Calendar Setting") was prepared on a pretyped or computerized
form. This form contains space in the middle of the page for the
screening recommendation of either a clerk or a judge, and then
an additional space (lower on the page) for a judicial ruling on
the peremptory challenge. To understand the ensuing procedural
history of this case, it is helpful to see the layout of this
form and how it was filled in by Tan's attorney, by Judge
Hopwood, and by Anchorage Superior Court Judge Karl S. Johnstone,
the presiding judge for the Third Judicial District.
(In the document that follows, most of the text is
preprinted. The bold text in the top half of the page represents
the words typed onto the form by Tan's attorney. The italicized,
small-capital text in the bottom half of the page represents the
words handwritten by Judge Hopwood and Judge Johnstone.)
IN THE DISTRICT / SUPERIOR COURT FOR THE STATE OF
ALASKA
AT Kodiak
STATE OF ALASKA, )
)
Plaintiff, )
)
vs. ) CASE NO. 3KO-S94-
327 CR
)
LILIBETH TAN, )
) NOTICE OF CHANGE OF
JUDGE
Defendant. )
(Peremptory Challenge)
____________________________________)
Pursuant to Civil Rule 42(c) / Criminal Rule
25(d), Lilibeth Tan, plaintiff /
defendant, hereby peremptorily challenges the
judge assigned to this case, Judge Donald D.
Hopwood. Names and addresses of all parties in
this case are (attach additional sheet if
necessary):
[Prosecutor] [Defense
Attorney]
I certify that a copy of this notice has been sent
to each of the parties listed above.
9-6-94 /s/ Allan R.
Thielen
FOR COURT USE ONLY
Notice is o timely. o not timely.
Peremptory waived. Def. completed a waiver
of indictment and COP before Judge Hopwood on
1 Sept. 94. Crim. R. 25(d)(5).
A peremptory challenge o has x has not
previously been filed by
o plaintiffs. x defendants.
6 September 1994 /s/ Donald D.
Hopwood
Clerk / Judge
ORDER
o This case is reassigned to Judge
________________.
x This Notice of Change of Judge is not approved
because
o It is not timely.
x Other: See above by Judge Hopwood.
9/30/94 /s/ Karl Johnstone
Judge / Clerk
From the wording of this document, it appears that
Judge Johnstone was the judicial officer who actually issued the
ruling on Tan's attempted peremptory challenge. It further
appears that Judge Johnstone's decision to deny the peremptory
challenge was based on Judge Hopwood's assertion (in the middle
portion of the document) that Tan had waived her right to
peremptorily challenge him by participating in the change-of-plea
hearing in front of him on September 1st. See Alaska Criminal
Rule 25(d)(5).1
Finally, again referring to the document, it also
appears that, after Judge Hopwood made his recommendation on the
peremptory challenge issue on September 6th, the document was
sent directly to Judge Johnstone in Anchorage. Judge Johnstone
issued his ruling on September 30th, and the clerk's certificate
declares that the completed document was sent to the parties on
October 6, 1994. This was apparently Tan's first notification
that her peremptory challenge had been denied.
On October 14, Tan filed a motion asking the superior
court to reconsider its ruling. In the accompanying memorandum
and affidavit of counsel, Tan's attorney asserted that he had
delayed filing the peremptory challenge and had consented to have
Judge Hopwood preside over the change-of-plea hearing only
because he had been told by the Kodiak Clerk of Court that this
would be all right. Tan's attorney declared:
On the morning of September 1, 1994, counsel
for the defendant had a telephonic conference
with the Clerk of Court in Kodiak[,] and she
stated that, following conversations with ...
Judge Donald D. Hopwood, the change of plea
would occur before Judge Hopwood and the
defendant would then be free to subsequently
file a Notice of Peremptory Challenge
pursuant to Alaska Criminal Rule 25(d). ...
[T]he Clerk of Court represented to counsel
[that] Judge Hopwood would conduct the change
of plea[,] with the court later assigning
another superior court judge to conduct the
sentencing hearing [after the defendant
filed] the court form for peremptory
challenge.
Judge Johnstone denied Tan's motion for reconsideration without
comment. Tan now appeals the superior court's ruling.
Tan first argues that her "Request for Calendar
Setting", filed on August 30th, was in fact a peremptory
challenge of Judge Hopwood and that therefore Judge Hopwood was
disqualified from her case even before the September 1st change-
of-plea hearing. Tan points out that, in the "Request for
Calendar Setting", her attorney specified that he wanted the
waiver-of-indictment/change-of-plea hearing set "before the first
available Anchorage Superior Court judge". Tan asserts that,
because Judge Hopwood is the sole resident superior court judge
in Kodiak, her specific request for an Anchorage judge was the
functional equivalent of a peremptory challenge of Judge Hopwood.
We do not agree. Criminal Rule 25(d)(2) specifies that
a party wishing to exercise the right of peremptory challenge
must file a "Notice of Change of Judge" that specifies "the name
of the judge to be changed". Tan's "Request for Calendar
Setting" did not meet these requirements. Had Tan wished to
challenge Judge Hopwood when she asked the superior court to set
a date for her change-of-plea hearing, she easily could have
filed an additional pleading that met the requirements of
Criminal Rule 25(d)(2). The superior court did not abuse its
discretion when it rejected Tan's argument that the "Request for
Calendar Setting" constituted a peremptory challenge.
Tan next argues that, even if her "Request for Calendar
Setting" does not qualify as a peremptory challenge, the superior
court should have honored her September 6th pleading entitled
"Notice of Change of Judge" (which specifies Judge Hopwood as the
judge to be changed). The apparent obstacle to this argument is
the fact that, by the time Tan filed her "Notice of Change of
Judge" on September 6th, she had already appeared at a change-of-
plea hearing in front of Judge Hopwood.
Criminal Rule 25(d)(5) prohibits a litigant from
challenging a judge if the litigant, "knowing that the judge has
been permanently assigned to the case, participates before the
judge in ... a hearing under [Criminal] Rule 11" _ that is, a
change-of-plea hearing. As described above, Tan contends that
Rule 25(d)(5) should not bar her challenge to Judge Hopwood
because the Kodiak Clerk of Court assured her that she would
still be able to challenge Judge Hopwood even after Judge Hopwood
presided over her change-of-plea hearing.
Tan's attorney's affidavit is somewhat ambiguous as to
the precise factual claim being raised. The attorney's affidavit
might alternatively be construed to assert: (A) that the clerk
told him that Judge Hopwood was not permanently assigned to the
case _ that Judge Hopwood's assignment was for the limited
purpose of accepting Tan's change of plea, or (B) that the clerk
assured him that, even though Judge Hopwood was permanently
assigned to the case, Tan could participate in the change-of-plea
hearing in front of Judge Hopwood and her attorney would still
have five days to file the peremptory challenge.
Whichever claim Tan is pursuing, it is clear that this
claim has not yet been fully litigated. Tan's attorney raised
these arguments in his affidavit supporting Tan's motion for
reconsideration. There has never been a hearing on the
attorney's factual assertions. When Judge Johnstone denied Tan's
motion for reconsideration, he implicitly ruled that Tan was not
entitled to relief even if her attorney's assertions were true.
But if the attorney's assertions are true, then Tan may not have
waived her challenge to Judge Hopwood when she appeared in front
of him for the change-of-plea hearing (if her attorney was told
that Judge Hopwood was not permanently assigned to the case).
Alternatively, Tan might be entitled to relaxation of Criminal
Rule 25(d)(5) under the provisions of Criminal Rule 53.2 We
therefore remand this case to the superior court so that the
court can hold a hearing on the credibility and legal effect of
the assertions in Tan's attorney's affidavit.
The superior court's order denying Tan's peremptory
challenge of Judge Hopwood is VACATED and this case is REMANDED
to the superior court for further proceedings consistent with
this opinion.
_______________________________
1 Criminal Rule 25(d)(5) provides, in pertinent part:
Waiver. A party loses the right under this rule to change a judge when the
party, after reasonable opportunity to consult with counsel, ... [and]
knowing that the judge has been permanently assigned to the case,
participates before the judge in an omnibus hearing, any subsequent
pretrial hearing, a hearing under Rule 11, or the commencement of trial.
2 Criminal Rule 53 provides, "These rules are designed to facilitate business
and advance justice. They may be relaxed or dispensed with by the court in
any case where it shall be manifest to the court that a strict adherence
to them will work injustice."
