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Plyler v. State (10/20/00) ap-1695
Plyler v. State (10/20/00) ap-1695
NOTICE: 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
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JAMES PLYLER, )
) Court of Appeals No. A-7625
Petitioner, ) Trial Court No. 3KN-S99-835 CI
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
) [No. 1695 - October 20, 2000]
Respondent. )
)
Appeal from the Superior Court, Third Judicial
District, Kenai, Jonathan H. Link, Judge.
Appearances: James T. LaVecchia, Kenai, for
Petitioner. Eric A. Johnson, Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General,
Juneau, for Respondent.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
COATS, Chief Judge.
This case requires us to decide whether a defendant who
files an application for post-conviction relief challenging a
criminal conviction has the right to a peremptory challenge of the
judge who presided over the trial which led to the conviction. We
conclude that the defendant has no right to a peremptory challenge.
Because the judge who conducted a defendant's trial would be
familiar with the circumstances of the trial, we are persuaded that
it would be unwise to allow a defendant to disqualify the judge by means of a
peremptory challenge. We are also persuaded by the fact that courts of other
jurisdictions have accepted this policy
argument in denying peremptory challenges in these circumstances.
On September 25, 1996, a jury found James Plyler guilty
of first degree murder for killing Peter Nicely, the husband of a
woman with whom Plyler was romantically involved. [Fn. 1] Plyler
appealed to this court. On April 7, 1999, this court affirmed
Plyler's conviction. [Fn. 2]
On November 8, 1999, Plyler filed an application for post-conviction
relief. In his application, Plyler essentially
claimed that he had received ineffective assistance of counsel. The
application for post-conviction relief was assigned to Superior
Court Judge Johnathan H. Link, who was the judge who presided over
Plyler's jury trial. Plyler filed a timely notice of change of
judge under Alaska Civil Rule 42 to peremptorily disqualify Judge
Link. Judge Link denied the peremptory challenge. In denying the
challenge, Judge Link relied in part on the argument that allowing
a peremptory challenge under these circumstances would have a
"negative effect on judicial economy." He pointed out that he had
"presided over a lengthy underlying criminal trial" and that
"requiring a new judge to become familiar with lengthy trial
records" would be a substantial burden.
Plyler filed a peremptory challenge appeal under Alaska
Appellate Rule 216(a)(2). We concluded that:
Appellate Rule 216 applies only to "an appeal
by a criminal defendant from an order denying the defendant's motion for
change of judge under Criminal Rule 25 (d)." Since Plyler's underlying claim
is one for post-conviction relief, a civil claim, his motion for change of
judge falls under Civil Rule 42(c)(2) rather than Criminal Rule 25(d).
We therefore concluded that Plyler had no right to appeal. But,
we accepted Plyler's case as a petition for review, concluding that
the issue which Plyler raised "involves an important question of
law on which there is substantial ground for difference of opinion, and an
immediate review of the order or decision may materially advance the
ultimate termination of the litigation, or
may advance an important public interest." [Fn. 3]
Other courts which have peremptory challenge rules
similar to Alaska's have concluded that a defendant who files an
application for post-conviction relief is not entitled to
peremptorily disqualify the judge who presided at the trial which
led to his underlying conviction. [Fn. 4] These cases rely on
policy arguments similar to the one Judge Link advanced in denying
Plyler's motion for change of judge. In Johnson v. Minnesota, the
court observed that "a trial [judge] has unique insight into the
record developed over the course of a prosecution." [Fn. 5] The
Missouri Supreme Court in Thomas v. Missouri discussed this policy
in greater detail:
First, the majority of post-conviction claims
focus on the effectiveness of the now-convicted defendant's trial counsel. On
review, we defer to the trial judge's ability to assess the credibility of the
witnesses at the post-conviction motion hearing and reverse that judge's
conclusion only if it is clearly erroneous. Yet [the peremptory challenge
rule] permits the parties to seek a change of judge without cause, thereby
removing the judicial officer best acquainted with the case and its conduct
from consideration of claims relating to trial counsel's representation of the
convicted defendant. [The peremptory
challenge rule], if invoked, thus requires a judge to determine issues of
defense counsel's competence, despite that judge's lack of personal experience
with or personal observation of the flow of the criminal trial, the demeanor
of the trial witnesses, the
strength of the state's case, the relative strength of the defense case as
presented, the character of the convicting jury, or the
intuitive assessment of the quality of trial counsel's representation upon
which the standard of review is founded. [Fn. 6]
The Missouri court went on to point out that allowing a
defendant who files an application for post-conviction relief to
peremptorily disqualify the original trial judge would cause inefficiency and
delay:
Second, the addition of a new judge, unfamiliar with the trial record, fosters
unnecessary delay. Particularly where the underlying trial involved
complicated issues or took a long time to try, the . . . court must carefully
consider the entire trial from the record to consider the [application for
post-conviction relief] properly. This is neither an easy, nor swift process;
asking a new judge to hear the motion builds in the very delay [the court
rules applying to post-conviction relief] are designed to eliminate. [Fn.
7]
The Missouri court pointed out that a defendant still retained the
right to file a challenge for cause to remove a biased judge. [Fn. 8]
We believe that the policy reasons for not allowing a
defendant who files an application for post-conviction relief to
peremptorily disqualify the trial judge who conducted the
underlying trial are persuasive. Applications for post-conviction
relief are a significant part of the judicial case load. Many of
these cases involve issues such as whether the defendant received
ineffective assistance of counsel or whether the defendant should
be granted a new trial based on newly discovered evidence. The
trial judge who conducted the original trial has a significant
advantage in evaluating these issues. To require a judge
unfamiliar with the case to become familiar with the record of a
lengthy trial would be a significant burden. Furthermore, some
critical aspects of the trial, such as the credibility and demeanor
of the witnesses, are difficult to extract from the record of a
case. The trial judge who saw the witnesses testify, and who saw
the presentation and arguments by counsel, is in a much better
position to render an accurate decision.
We do not believe that Staso v. State [Fn. 9] compels a
different result. Staso filed a civil suit against the State of
Alaska. His case was dismissed without prejudice because he failed
to meet the special procedural requirements of Alaska Civil Rule
16.1. Staso then refiled exactly the same civil case. When the
case was reassigned to the judge who had dismissed his original case, Staso
filed a motion for change of judge. When the trial
court denied Staso's motion for change of judge, Staso appealed to
the supreme court. The supreme court held that since Staso had
filed a new civil case, he was entitled to a new peremptory
challenge.
Plyler argues that Staso establishes a bright-line rule:
that whenever a new civil case is filed, the parties are entitled
to a new round of peremptory challenges under Civil Rule 42(c) --
even to challenge a judge who previously handled related
proceedings. Plyler points out that a petition for post-conviction
relief is a civil action, separate from the criminal proceedings
that resulted in the defendant's conviction. [Fn. 10] Because of
this, and under his reading of Staso, Plyler contends that he is
entitled to disqualify the original trial judge from presiding over
his current petition for post-conviction relief. We do not read Staso this
way.
In Staso, the supreme court was asked to decide whether
the parties were entitled to a new round of peremptory challenges
when a civil suit was refiled (and given a different file number)
after having been dismissed for procedural deficiencies. The court
acknowledged that previous Alaska decisions in this area generally
held that litigants have no right to a new round of peremptory
challenges if the second lawsuit is "ancillary to and a
continuation of the underlying . . . action." [Fn. 11] The court
recognized the value of this policy, but at the same time
recognized the difficulties that would be created if every refiled
civil case had to be evaluated to see whether the claims raised in
the second lawsuit were identical to, or substantially the same as,
the claims raised in the original (dismissed) lawsuit. [Fn. 12]
Because of these difficulties, the court decided that it would be
prudent to establish a rule that would unambiguously resolve the
peremptory challenge issue in the context of refiled civil cases.
That rule was to allow a new round of challenges whenever a refiled case is
given a new filing number. [Fn. 13]
We do not interpret Staso as creating a hard-and-fast rule for all
situations in which related proceedings are given
separate court numbers. Rather, we read Staso in a more limited
fashion: the supreme court decided that, in the particular context
of refiled civil actions, the public policy favoring continuity in
judicial decision-making was outweighed by the policy of giving
litigants clear advance notice of their rights.
Plyler's case presents a different context: Plyler is
litigating a petition for post-conviction relief that collaterally
attacks an underlying criminal proceeding. Following the supreme
court's lead in Staso, we must weigh the competing public policies
to assess whether the parties should receive a new round of
peremptory challenges in this situation. As explained above, the
courts that have examined this issue have generally concluded that
the parties should not be able to peremptorily challenge the judge
who presided over the underlying criminal trial. We agree.
Because Judge Link presided over Plyler's trial, Plyler
had no right to peremptorily challenge him in this post-conviction
relief litigation. The judgment of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
See Plyler v. State, Memorandum Opinion and Judgment No.
4033 (Alaska App., April 7, 1999).
Footnote 2:
See id.
Footnote 3:
Alaska R. App. P. 402(b)(2).
Footnote 4:
See Johnson v. Minnesota, 486 N.W.2d 825 (Minn. App.
1992); Thomas v. Missouri, 808 S.W.2d 364 (Mo. 1991); Falcon v.
North Dakota, 570 N.W.2d 719 (N.D. 1997).
Footnote 5:
486 N.W.2d 825, 827 (Minn. App. 1992).
Footnote 6:
Thomas v. Missouri, 808 S.W.2d 364, 366-67 (Mo. 1991).
Footnote 7:
Id. at 367.
Footnote 8:
See id.
Footnote 9:
895 P.2d 988 (Alaska 1995).
Footnote 10:
See Hensel v. State, 604 P.2d 222, 230-31 (Alaska 1979).
Footnote 11:
Staso, 895 P.2d at 991 (quoting Webber v. Webber, 706 P.2d 329,
330 (Alaska App. 1985).
Footnote 12:
See Staso, 895 P.2d at 990 & n.4.
Footnote 13:
See id. at 992.
