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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
TRAVIS R. McRAE, )
) Court of Appeals No. A-5606
Appellant, ) Trial Court No. 3KO-90-295 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1452 - January 12, 1996]
______________________________)
Appeal from the Superior Court, Third
Judicial District, Kodiak, Donald D. Hopwood,
Karl S. Johnstone, and Milton M. Souter,
Judges.
Appearances: Allan R. Thielen,
Assistant Public Defender, Kodiak, Herman G.
Walker, Assistant Public Defender, and John
B. Salemi, Public Defender, Anchorage, for
Appellant. Eric A. Johnson, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, and Coats
and Mannheimer, Judges.
MANNHEIMER, Judge.
Travis R. McRae appeals the order of the superior court
revoking his probation from a 1991 felony conviction. We affirm.
In 1990, McRae was prosecuted for third-degree
misconduct involving a controlled substance. The State
peremptorily challenged the resident superior court judge in
Kodiak. An Anchorage judge was assigned to the case but, a few
days later, McRae challenged this second judge. Ultimately,
Superior Court Judge Milton M. Souter (another Anchorage judge)
was assigned to McRae's case. In January 1991, following McRae's
plea of no contest, Judge Souter traveled to Kodiak to conduct
McRae's sentencing. Judge Souter sentenced McRae to 4 years'
imprisonment with all but 18 months suspended.
McRae served his term of imprisonment and was released
on probation. On June 30, 1994, the Department of Corrections
petitioned the superior court to revoke McRae's probation. The
petition alleged that McRae had violated various game laws, that
McRae had possessed (and used) a firearm (in commission of the
hunting violations), that McRae had consumed alcoholic beverages,
and that McRae had changed both his employment and his residence
without obtaining his probation officer's permission. McRae
denied these allegations. On August 9, 1994, Presiding Superior
Court Judge Karl S. Johnstone scheduled a hearing on the
revocation petition in front of Judge Souter.1
When the parties assembled in the Kodiak courthouse on
August 10th for the hearing, Superior Court Judge Donald D.
Hopwood was present to preside over the hearing. McRae's
attorney objected to Judge Hopwood's participation: he declared
that he had expected Judge Souter to preside, since Judge Souter
had been the sentencing judge and since Judge Souter was the
judge named in the calendaring order. Confronted with McRae's
objection, Judge Hopwood recessed the hearing to consult Judge
Souter and Judge Johnstone.
When court reconvened, Judge Johnstone appeared
telephonically and announced that Judge Hopwood would hear only
the adjudicative (fact-finding) phase of the revocation hearing;
if McRae were found to have violated the conditions of his
probation, then Judge Souter would preside over the dispositive
(sentencing) phase of the proceedings. After Judge Johnstone
announced this ruling, McRae declared that he wished to
peremptorily challenge Judge Hopwood. Judge Johnstone denied the
challenge because McRae had already exercised a peremptory
challenge earlier in the case (in 1990).
A few days later, McRae sought reconsideration of Judge
Johnstone's ruling. He asked that Judge Souter hear both the
adjudicative and dispositive phases of the probation revocation
hearing. In the alternative, if a judge other than Judge Souter
were to hear the adjudicative phase of the proceeding, McRae
asked to be allowed to exercise a peremptory challenge against
this new judge. Judge Johnstone denied McRae's motion.
Judge Hopwood conducted the adjudicative phase of the
revocation hearing on August 10 and 11 and September 12 and 23,
1994. At the close of the hearing, Judge Hopwood found that the
State had proved all but two of the allegations contained in the
petition. Accordingly, a disposition hearing was scheduled in
front of Judge Souter. On November 29, 1994, at the close of
this hearing, Judge Souter revoked McRae's probation and
sentenced him to serve 6 months of the imprisonment that he had
originally suspended. He also extended McRae's probation by one
year.
McRae now appeals the revocation of his probation.
McRae contends that, because Judge Souter was the judge who
originally sentenced him, Judge Souter should have conducted both
the adjudicative and the dispositive phases of the revocation
hearing. McRae asserts that Judge Johnstone acted unlawfully when
he assigned Judge Hopwood to conduct the adjudicative phase of
the revocation hearing. Alternatively, McRae argues that if
Judge Johnstone acted properly when he assigned the adjudicative
phase of the proceedings to a judge other than Judge Souter, then
McRae should have been entitled to exercise a peremptory
challenge against this new judge.
McRae relies on Kvasnikoff v. State, 535 P.2d 464
(Alaska 1975), for the proposition that the judge who sentenced a
defendant should hear any probation revocation proceedings. In
Kvasnikoff, the supreme court said:
When a judge has entered an order
placing a defendant on probation, any
subsequent hearing held to determine whether
probation should be revoked is a supplemental
proceeding. ... We believe that justice is
better served by preserving the jurisdiction
of the original trial judge over the
sentencing process. The goals of sentencing
are best met when a judge who is familiar
with a case is permitted to determine whether
probation should be revoked and the sentence
should be imposed.
Kvasnikoff, 535 P.2d at 466. Based on Kvasnikoff, this court
adopted the rule that a defendant's original sentencing judge
should ordinarily preside over probation revocation proceedings
unless there is good reason to assign another judge. Trenton v.
State, 789 P.2d 178 (Alaska App. 1990).
While Kvasnikoff and Trenton appear at first blush to
support McRae's insistence on having Judge Souter conduct the
entire probation revocation proceedings, McRae's case raises an
issue that was not confronted in Kvasnikoff and Trenton: whether
a different judge can preside over the adjudicative phase of the
revocation proceedings so long as the original sentencing judge
conducts the dispositive phase.
Probation revocation proceedings consist of two
distinct phases. The proceedings begin with an adjudicative
(fact-finding) phase in which the parties litigate whether the
defendant violated the terms of probation. If the court finds
that the defendant violated the terms of probation, the
proceedings then move to a dispositive (sentencing) phase in
which the court decides (a) whether these violations require
revocation of the defendant's probation, and, if so, (b) what
adjustment should be made to the defendant's sentence (generally,
imposition of previously suspended jail time, extension of the
defendant's period of probation, or both). Holton v. State, 602
P.2d 1228, 1238 (Alaska 1979); Trumbly v. State, 515 P.2d 707,
709 (Alaska 1973).
In Kvasnikoff, the supreme court concluded that
"justice is better served" by having the original sentencing
judge preside over any probation revocation proceedings. But the
court reached this conclusion because it believed that such a
rule would best serve the goals of sentencing:
The goals of sentencing are best met when a
judge who is familiar with a case is
permitted to determine whether probation
should be revoked and the [previously
suspended] sentence should be imposed.
Kvasnikoff, 535 P.2d at 466.
The two determinations mentioned by the supreme court C
whether to revoke the defendant's probation, and what sentence to
impose if probation is revoked C are the two determinations made
at the dispositive phase of the revocation proceedings. Like the
original decision to suspend a term of imprisonment and place a
defendant on probation, these two revocation decisions are
entrusted to a judge's sentencing discretion. Alaska law
recognizes that different judges may legitimately reach different
sentencing conclusions based on the same set of facts. See
Ephamka v. State, 878 P.2d 647, 652 (Alaska App. 1994).2 Because
of this, the sentencing goals of reasonable uniformity and
predictability are enhanced by having the original judge exercise
the required sentencing discretion at any probation revocation
proceedings.
But this policy of continuity is attenuated at the
adjudicative phase of the revocation proceeding. At the
adjudicative phase of the proceeding, the issues are confined to
questions of historical fact: what were the defendant's
conditions of probation, and did the defendant violate them? In
our legal system, the task of fact-finding is often separated
from the task of deciding what legal outcome is appropriate under
the facts, and these tasks are frequently assigned to different
judicial officers. For example, the appellate courts often
remand factual issues to the trial courts, and the trial courts
often appoint masters to make factual determinations necessary to
the courts' ultimate legal rulings. Thus, the policy of having
the same judicial officer hear all aspects of a proceeding
applies less strongly when a proceeding is divided into
adjudicative and dispositive halves. Accordingly, when the issue
is whether another judge should be assigned to hear the fact-
finding portion of a probation revocation proceeding, the "good
cause" required for this judicial re-assignment need not be as
compelling as it would need to be if all aspects of the
proceeding (both adjudicative and dispositive) were to be
transferred to a new judge.
We recognize that there may be cases in which a
sentencing judge crafts unusual conditions of probation to
accomplish specific sentencing goals for a particular offender.
In such cases, if the parties later disagree on the meaning of
the defendant's conditions of probation, the input of the
original sentencing judge might be valuable, thus providing more
reason to favor having the original judge conduct the
adjudicative phase of the revocation proceeding. However, the
conditions of probation at issue in McRae's case were standard
conditions: no further violations of the law, no drinking, no
possession of firearms, and no change of residence or employment
without notifying his probation officer. There was no dispute
concerning the meaning of these conditions C only whether McRae
had violated them.
McRae argues that Judge Souter, to properly exercise
his sentencing discretion at the dispositive phase of the
proceeding, might wish or need to know more about the facts than
can be gleaned from reading Judge Hopwood's findings. McRae
notes that sentencing decisions are often based, not just on the
bare plea or verdict, but on a much fuller evidentiary record
that reveals the context of the defendant's behavior and sheds
light on whether the defendant's violation of the law is typical,
aggravated, or mitigated. We do not disagree with McRae's
assertion. But if McRae believed that Judge Souter needed to be
apprised of the full evidentiary record developed at the
adjudicative hearing in order to understand Judge Hopwood's
findings of fact, McRae was free to bring that record to Judge
Souter's attention. Compare Alaska Criminal Rule 25(b).
Likewise, if McRae had additional information to offer in
explanation or mitigation of his violations of probation
(information not presented at the adjudicative phase of the
hearing), McRae was free to offer this information at the
disposition hearing.
Under the facts of McRae's case, we hold that Judge
Johnstone did not abuse his discretion when he assigned the
adjudicative phase of McRae's probation revocation proceedings to
Judge Hopwood, the resident superior court judge in Kodiak.
First, Judge Souter resided in Anchorage; presumably, he would
have had to cancel his normal court calendar to travel to Kodiak
for the adjudication hearing. Second, McRae was charged with
violating standard conditions of probation. McRae has not
suggested that Judge Souter, as the original sentencing judge,
had special insight into the meaning of the probation conditions.
Indeed, the meaning of these conditions was not disputed. And
third, even though McRae argues that it is generally better for
the same judge to conduct both phases of the revocation hearing,
McRae has not shown or even suggested that he was prejudiced by
having the two phases conducted by different judges. In
particular, McRae has not shown that Judge Johnstone's decision
prejudiced his ability to defend against the allegations in the
State's petition or prejudiced his ability to present relevant
sentencing information to Judge Souter at the disposition
hearing. We therefore uphold the assignment of Judge Hopwood to
conduct the adjudicative phase of the revocation proceedings.
This brings us to McRae's second contention: that if
Judge Johnstone could properly assign a different judge to
conduct the adjudicative phase of the revocation proceedings,
then McRae was entitled to exercise a peremptory challenge
against this new judge. This contention is answered by
Kvasnikoff, where the supreme court declared that "any subsequent
hearing held to determine whether probation should be revoked is
a supplemental proceeding" to the original criminal prosecution.
535 P.2d at 466. That is, a probation revocation hearing is a
"continuation of the original [criminal] proceedings". Id.
Probation revocation proceedings are initiated when the
State alleges that the defendant has failed to live up to the
terms of the judgement. To the extent that the terms of
probation might be likened to a contract between the court and
the defendant, the purpose of the revocation proceedings is to
determine whether the defendant is in breach and whether the
breach is material. As the supreme court stated in Kvasnikoff,
justice is best served if the same judge who originally sentenced
the defendant makes the sentencing decision at any subsequent
probation revocation proceedings. To this end, probation
revocation proceedings are viewed as the "same case" for
peremptory challenge purposes.
In any criminal case, both the government and the
defendant have the right to peremptorily challenge one judge.
AS 22.20.022(d); Alaska Criminal Rule 25(d)(1). McRae exercised
this right of peremptory challenge in 1990, when he challenged
the second judge assigned to his case. Thus, when Judge Hopwood
was assigned to hear the adjudicative phase of the probation
revocation hearing, McRae had no peremptory challenge left to
exercise against Judge Hopwood. For this reason, we uphold Judge
Johnstone's decision to deny the peremptory challenge McRae filed
against Judge Hopwood.
The judgement of the superior court is AFFIRMED.
_______________________________
1 The calendaring order states that the hearing was to be held "before Judge
Milton M. Souter in Courtroom A". Given the facts that Judge Souter
resides in Anchorage, that Judge Johnstone's order set the hearing for the
very next day, and that Judge Souter's assigned courtroom in the Anchorage
courthouse is Courtroom A, it appears that Judge Johnstone anticipated that
the probation revocation hearing would be held in Anchorage.
2 "Reasonable people can differ regarding the proper sentence for a particular
defendant; the supreme court's adoption of the 'clearly mistaken' standard
of review in sentence appeals rests on the recognition that there is a
'range of reasonable sentences' for any given defendant. State v. Wentz,
805 P.2d 962, 965 (Alaska 1991)."
