Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
Wright v. State (01/04/2002) ap-1782
Wright v. State (01/04/2002) ap-1782
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
THOMAS WRIGHT, )
) Court of Appeals No. A-8120
Appellant, ) Trial Court No. 1YA-01-020 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1782 -- January 4, 2002]
)
Appeal from the District Court, First Judicial
District, Yakutat, Peter B. Froehlich, Judge.
Appearances: Allan Beiswenger, Robinson & Beiswenger, Soldotna, for
Appellant. David L. Brower, Assistant District Attorney, Richard A. Svobodny,
District Attorney, and Bruce M. Botelho, Attorney General, Juneau, for
Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
Thomas Wright stands charged with two misdemeanors in the Yakutat
district court (driving while intoxicated and refusing to
submit to a breath test). At Wright's arraignment on June 14, 2001,
his case was assigned to District Court Judge Peter B. Froehlich.
Almost three months later, on September 7, 2001, Wright's attorney
filed a peremptory challenge of Judge Froehlich under Alaska
Criminal Rule 25(d). Judge Froehlich ruled that this challenge was
untimely. Wright now appeals this ruling. [Fn. 1]
Under Criminal Rule 25(d)(2), litigants must exercise a
peremptory challenge of the trial judge within "five days after notice that
the case has been assigned to [that] specific judge".
At Wright's arraignment on June 14th, the magistrate distributed a
Temporary Order of Commitment that was stamped, in red ink, "This
matter is formally assigned to Peter B. Froehlich, District Court
Judge." Thus, it appears that Wright knew immediately (i.e., from
the time of his arraignment) that Judge Froehlich was assigned to
his case.
Wright, however, relies on Riley v. State, 608 P.2d 27
(Alaska 1980), where the supreme court ruled that a defendant should
have the chance to consult counsel about whether to peremptorily
challenge the assigned judge -- and that the deadline for filing a
peremptory challenge should be relaxed if the defendant had no
opportunity to discuss this matter with their attorney within the
normal five-day period. [Fn. 2]
Wright asserts that his attorney, David G. Speikers, did
not find out about Judge Froehlich's assignment until Speikers
attended a pre-trial hearing on August 30th. Based on this fact,
Wright argues that he was entitled to a reasonable amount of time
after August 30th -- in this case, seven days -- to consult with
Speikers about the desirability of challenging Judge Froehlich.
If, as Wright suggests, the Rule 25(d) "clock" should be
deemed to have commenced running on August 30th, then, under
Criminal Rule 40(a), August 31st would be Day 1 of the five-day
count. [Fn. 3] This means that a September 7th peremptory challenge
would be timely -- for Criminal Rule 40(a) states that intervening
weekend days and holidays are to be disregarded when calculating a
deadline of less than seven days. August 31st was a Friday;
Saturday and Sunday are never counted; and the following Monday,
September 3rd, was a holiday (Labor Day). Thus, Tuesday, September
4th, would be Day 2, and September 7th would be Day 5.
However, we do not agree with Wright that the five days
should be counted from August 30th. Wright's attorney, David
Speikers, filed an entry of appearance on August 8, 2001.
(Actually, Speikers filed a motion for permission to appear: he is
a member of the Washington bar and is not licensed to practice law
in Alaska, so he needed special permission to represent a client in
the courts of Alaska. Speikers's formal entry of appearance was not
filed until August 23rd. But for present purposes, this makes no
difference.)
Because Speikers filed a pleading on August 8th in which
he indicated his intention to represent Wright, we can assume that
Wright contacted Speikers on or before that date. When Wright
contacted Speikers, Wright already knew that Judge Froehlich was
assigned to his case. Thus, Wright had the opportunity to discuss
Froehlich's assignment with his attorney for at least 30 days prior
to September 7th (the day the peremptory challenge was filed).
In his pleadings, Wright asserts that Speikers did not
actually find out about Judge Froehlich's assignment until August
30th. But if this is true, Judge Froehlich could reasonably
conclude that Speikers's ignorance of the assignment stemmed from
two facts: (1) Wright did not tell Speikers about Judge Froehlich's
assignment, and (2) Speikers failed to ask his client whether a
judge had been assigned to the case.
We conclude that Riley does not excuse the tardiness of a peremptory
challenge when, after the defendant secures counsel,
the defendant and counsel fail to diligently pursue the potential
peremptory challenge. In the present case, even assuming the truth
of the assertions in Wright's pleadings, Wright failed to establish
that he and his attorney acted diligently after August 8th (the day
on which Speikers became actively involved in Wright's case) to
exercise a peremptory challenge.
The ruling of the district court is AFFIRMED.
FOOTNOTES
Footnote 1:
See Alaska Appellate Rule 216; Washington v. State, 755 P.2d
401, 403 (Alaska App. 1988) (holding that an interlocutory appeal
under Appellate Rule 216 is the exclusive method for seeking review
of a trial judge's denial of a peremptory challenge).
Footnote 2:
See id. at 29-30.
Footnote 3:
Criminal Rule 40(a) states that, unless a particular rule
specifies otherwise, "in computing any period of time, the day of the act or
event from which the designated period of time begins to
run is not to be included [in the calculation]".
