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Watt v. State (1/3/2003) ap-1848
Watt v. State (1/3/2003) ap-1848
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:
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
NORMAN R. WATT, )
) Court of Appeals No.
A-8417
Appellant, )
Trial Court No. 3VA-S02-127 CR
)
v. ) O P I
N I O N
)
STATE OF ALASKA, )
)
Appellee. )
[No. 1848 January 3, 2003]
)
Appeal from the Superior Court, Third Judi
cial District, Valdez, Joel H. Bolger, Judge.
Appearances: Laurel Bennett, Assistant
Public Defender, Palmer, and Barbara K.
Brink, Public Defender, Anchorage, for
Appellant. Richard K. Payne, Assistant
District Attorney, Roman Kalytiak, District
Attorney, Palmer, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
MANNHEIMER, Judge, concurring.
This is a peremptory challenge appeal brought by Norman
R. Watt under Alaska Appellate Rule 216(a)(2). Superior Court
Judge pro tem Joel H. Bolger ruled that Watts Notice of Change of
Judge under Alaska Criminal Rule 25(d) was untimely. For the
reasons expressed here, we reverse the superior court.
On Saturday, July 6, 2002, the Valdez police received a
report that Watt had engaged in sexual penetration with 12-year-
old C.L. After investigating this report, the police arrested
Watt and charged him by complaint with one count of first-degree
sexual abuse of a minor.1 The next day, July 7, 2002, Watt
appeared before Judge Bolger in district court on the complaint.
Judge Bolger appointed the Public Defender Agency to represent
Watt, scheduled a preliminary hearing, and assigned himself to
the case for trial. Watt received copies of the documents
incorporating these orders and those same documents were faxed to
the public defender. Within five days, an assistant public
defender appeared for Watt and the case was continued by
stipulation of the parties.
Within a few weeks, the parties reached a plea
agreement. Under the plea agreement, Watt agreed to waive
indictment and plead in superior court to an information that
charged two counts of first-degree sexual abuse of a minor
involving two victims, C.L. and another minor, K.M.L. The plea
agreement specified that the superior court could impose no less
than 10 years and no more than 15 years to serve on the two
counts.
On August 30, 2002, Watt filed a request to transfer
the case to the superior court for a change of plea on the
information as contemplated by the plea agreement. He also filed
a Notice of Change of Judge under Criminal Rule 25(d) to preempt
Judge Bolger. Judge Bolger denied the challenge as untimely
because he was first assigned to the case on July 7.
Alaska Statute 22.20.022 grants a party the substantive
right to disqualify a judge peremptorily.2 According to AS
22.20.022(c), a party must exercise that right within five days
after the case is at issue upon a question of fact, or within
five days after the issue is assigned to a judge, whichever event
occurs later[.]
In criminal cases, the procedure for implementing this
right is specified in Criminal Rule 25.3 Alaska Criminal Rule
25(d)(2) now provides as follows:
(2) Procedure. A party may exercise the
partys right to a change of judge by filing a
Notice of Change of Judge signed by counsel,
if any, stating the name of the judge to be
changed. The notice shall neither specify
grounds nor be accompanied by an affidavit.
The notice of change of judge is timely if
filed within five days after notice that the
case has been assigned to a specific judge.
Judge Bolgers ruling that Watts challenge was untimely is
understandable in light of this subsection of the rule because
Watts notice was filed weeks after Judge Bolger assigned himself
to the case. And the parties pleadings in the trial court did
not alert Judge Bolger to any other authority.
But in Morgan v. State,4 the Alaska Supreme Court
reviewed the denial of a peremptory challenge under circumstances
similar to those in Watts case. Morgan first appeared on a
felony complaint before Superior Court Judge Christopher R. Cooke
sitting in the district court.5 At that time, Bethel was a
single-judge location (as is Valdez where Judge Bolger sits).
After the grand jury returned an indictment, the case was
calendared for an arraignment in superior court with Judge Cooke
assigned to the case.6 At the superior court arraignment, Morgan
moved to disqualify Judge Cooke peremptorily but Judge Cooke
denied the challenge as untimely.7
At that time, former Criminal Rule 25(d)(2) provided as
follows:
At the time required for filing the omnibus
hearing form, or within five days after a
judge is assigned the case for the first
time, a party may exercise his right to
change of judge by noting the request on the
omnibus hearing form or by filing a Notice of
Change of Judge signed by counsel, if any,
stating the name of the judge to be changed.
A judge may honor a timely informal request
for change of judge, entering upon the record
the date of the request and the name of the
party requesting it.
Reading the language of the statute together with the
rule, the supreme court held that Morgans challenge at
arraignment upon the entry of his plea was a timely exercise of
his substantive statutory right.8 The supreme court ruled that a
felony case is at issue under a question of fact under AS
22.20.022(c) when jurisdiction of the case is transferred to the
superior court for a defendants plea upon the return of an
indictment.9
Since Morgan was decided, the supreme court has amended
Criminal Rule 25(d)(2) several times. But nothing in the
amendments to the rule or the legislative history of those
amendments suggests that the supreme court intended to modify
their interpretation of the substantive statutory right discussed
in Morgan.
Pursuant to the plea agreement, Watts case was
transferred to superior court for a plea on the information.
Watt attempted to challenge Judge Bolger when he requested this
transfer for his plea. Even though Watt had an outstanding
agreement to change his plea to the information, Watts case was
not at issue on a question of fact under that information until
the case was in the superior court for an entry of plea on that
information.
We conclude that Morgan controls this case. Watts
challenge was timely under Morgan. Thus, Judge Bolgers
assignment of the case to himself for trial in the superior court
on July 7th while the case was still in district court could not
extinguish Watts right to a peremptory challenge upon the entry
of a plea in superior court.
The order denying Watts Notice of Change of Judge is
REVERSED.
MANNHEIMER, Judge, concurring.
I agree with my colleagues resolution of this case, but
I write separately to explain more explicitly why we reject the
argument presented by the State.
After the State filed its felony complaint against
Watt, but while Watts case was still in the district court (i.e.,
before Watt was indicted or agreed to waive indictment and be
prosecuted by information), Judge Bolger notified the parties
that he would be the trial judge. Both parties in this appeal
agree that the underlying issue in this case is whether Judge
Bolger could validly do this. More specifically, the issue is
whether any judge can be assigned to the trial of a felony case
during the pre-indictment stage of the case, while the
proceedings are still being handled in the district court.
If Judge Bolgers assignment as the trial judge was
lawful, then Watts challenge to Judge Bolger was untimely. But
Watt argues that, for purposes of the peremptory challenge rule,
no judge can validly be assigned to a felony trial until the
defendant is arraigned in the superior court.
At oral argument, both parties agreed that our
resolution of this appeal is governed by the supreme courts
decision in Morgan v. State, 635 P.2d 472 (Alaska 1981). But the
parties presented competing interpretations of the rule announced
in Morgan.
Morgan presented circumstances that are similar to the
present case. In April 1978, in Bethel, Morgan was charged by
complaint with several felony offenses. Superior Court Judge
Christopher Cooke, sitting as a district court judge, handled
various proceedings in the district court pending Morgans
indictment. The grand jury indicted Morgan on May 8th and, on
that same date, the clerk of court sent out a notice calendaring
Morgans superior court arraignment for May 10th. In that same
calendaring notice, the parties were formally notified that Judge
Cooke was to be the trial judge.1
At his arraignment on May 10th, Morgan tried to
peremptorily challenge Judge Cooke, but the judge directed Morgan
to file a written pleading. That pleading was not filed until
May 18th at which time, Judge Cooke denied Morgans challenge as
untimely.2 Morgan ultimately appealed the denial of his
peremptory challenge.
On appeal, the State argued that Morgan knew from the
very beginning that Judge Cooke would be his trial judge because
Judge Cooke was Bethels sole resident judge, and all matters
(both in the district court and the superior court) were
routinely assigned to him.3 The supreme court rejected this
argument and ruled that Judge Cooke was not formally assigned to
Morgans case until the clerk issued the calendaring notice on
May 8th.
At oral argument in Watts case, the State suggested
that the supreme courts decision in Morgan turned on the fact
that, even though everyone in Bethel might have known that Judge
Cooke would be the trial judge, the parties received no formal
notice of Judge Cookes assignment until the clerk issued the
calendaring notice. The State suggested that if Judge Cooke had
done what Judge Bolger did in Watts case i.e., if Judge Cooke
had given the parties early written notice that he would be the
trial judge, while Morgans case was still pending in the district
court then Morgans peremptory challenge would have been late,
and Morgans case would have been decided differently.
But the wording of the Morgan opinion shows that the
supreme court did not base its decision on the fact that there
was no earlier formal notice of Judge Cookes assignment. Rather,
the supreme court stated that no judge could have been assigned
to be Morgans trial judge until Morgan was indicted:
No judge could have been assigned to the May
10 indictment [sic: the indictment was
issued on May 8th] on April 22. Further, the
charges of the May 10 [sic] indictment cannot
be said to have been at issue upon a question
of fact as of April 22, since May 10 [i.e.,
Morgans superior court arraignment] was the
point at which [Morgan entered] the not
guilty plea to the charges in the indictment
... .
Morgan, 635 P.2d at 477-78. In an accompanying footnote, the
court cited an Oregon case for the proposition that [a]
plea of not guilty to an indictment places the cause at
issue for the purpose of statutory right of
disqualification for bias or prejudice.4
The supreme court then, somewhat surprisingly, declared
that the May 8 date triggered [Morgans] five-day period
for peremptorily challenging Judge Cooke under Alaska
Criminal Rule 25(d). May 8th was the date that the
clerk of court sent out the calendaring notice the
post-indictment notice that scheduled Morgans superior
court arraignment for May 10th and that formally
notified the parties of Judge Cookes assignment as
trial judge. The supreme courts choice of May 8th as
the starting date for calculating the peremptory
challenge deadline is somewhat surprising because, just
two paragraphs earlier, the supreme court had suggested
that Morgans felony charges [could not] be said to have
been at issue upon a question of fact until Morgans
superior court arraignment, when he was called upon to
enter a plea to the charges. This did not happen until
May 10th. The supreme court appears to have
disregarded this reasoning when it declared that May
8th was the starting date for calculating Morgans
peremptory challenge deadline.
I am not sure that I can reconcile these differing
strands of legal reasoning in Morgan. But, at a minimum, Morgan
stands for the proposition that no judge can be formally assigned
to be the trial judge in a felony case until the superior court
acquires felony jurisdiction over the defendant (either because
the defendant is indicted or because the defendant waives
indictment and consents to be prosecuted by information). Thus,
the problem in Morgan was not that Judge Cooke failed to send an
earlier formal notice of his assignment. The problem was that
Judge Cooke could not have sent an earlier formal notice because
the case was not ripe for assignment of a trial judge until
Morgan was indicted (or waived indictment).
For these reasons, I concur with my colleagues that
Watts peremptory challenge of Judge Bolger was timely and should
have been granted.
_______________________________
1 AS 11.41.434(a).
2 Gieffels v. State, 552 P.2d 661, 667-68 (Alaska 1976).
3 Id.
4 635 P.2d 472 (Alaska 1981).
5 Id. at 477.
6 Id. at 474 n.1.
7 Id. at 474.
8 Id. at 478.
9 Id. at 477-78.
1 Id. at 474 and n.1.
2 Id.
3 Id. at 477.
4 Id. at 478 n.8, citing State v. Ring, 259 P. 780 (Or.
1927), affirmed 276 U.S. 607, 48 S.Ct. 338, 72 L.Ed.
728 (1928).
