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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
| RAYMOND P. JUAREZ, | ) |
| ) Court of Appeals No. A-10214 | |
| Appellant, | ) Trial Court No. 3KO-07-709 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2186 October 10, 2008 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Kodiak, Joel H. Bolger, Judge.
Appearances: Robert R. Polley, Office of
Public Advocacy Contract Attorney, Kodiak,
for the Appellant. Stephen B. Wallace,
District Attorney, Kodiak, and Talis J.
Colberg, Attorney General, Juneau, for the
Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
A defendant in a criminal case is entitled as a matter
of right to one peremptory challenge of a judge.1 But to be
timely, the notice of change of judge must be filed within five
days after notice that the case has been assigned to a specific
judge.2 In addition, a party loses the right to peremptorily
challenge the judge when the party ... 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.3
Raymond P. Juarez peremptorily challenged Superior
Court Judge Joel H. Bolger. Judge Bolger denied the peremptory
challenge on the ground that it was untimely. Judge Bolger
concluded that, because Kodiak was a single-judge district, it
was obvious that Juarezs case was assigned to him from the
beginning and thus more than five days had elapsed before Juarez
filed his peremptory challenge. In addition, Judge Bolger found
that Juarez had waived his right to peremptorily challenge him
because Juarez had participated in pretrial hearings in front of
him. We conclude that because Juarezs case was never expressly
assigned to Judge Bolger until shortly before the peremptory
challenge, Judge Bolger erred in finding that the peremptory
challenge was untimely.
In December of 2007, the State charged Juarez with two
misdemeanor offenses: assault in the fourth degree4 and
harassment in the first degree.5 According to the charges,
Juarez, while in custody on other charges, assaulted another
prisoner. Juarez was transported to Kodiak for a hearing in
front of Judge Bolger on February 27, 2008. Judge Bolger
conducted a status hearing on February 29. At that hearing,
Juarezs trial was set to trail his other pending criminal cases.
On March 5, 2008, Judge Bolger granted Juarezs request for a two-
month continuance, setting trial call for May 7, 2008. At the
May 7 trial call, the matter was set for a status conference
before Judge Bolger on May 9.
At the status conference on May 9, Juarez filed a
consent to trial by magistrate and requested that he be tried
before the Kodiak magistrate. The same day, the State filed a
peremptory challenge of this magistrate. Judge Bolger granted
the States peremptory challenge and for the first time expressly
assigned the matter to himself for trial. On May 12, Juarez
filed his peremptory challenge of Judge Bolger. Judge Bolger
denied the peremptory challenge on the ground that it was
untimely.
The State argues that because Kodiak is a single-judge
district, Judge Bolger had been assigned to Juarezs case from the
beginning as a matter of law. The State points out that, unless
Juarez consented to a trial by the magistrate, Judge Bolger was
the only judge in Kodiak who could try the case.6 It appears to
us that the Alaska Supreme Court rejected this argument in Morgan
v. State.7 In that case the supreme court addressed the States
argument that, since Bethel was a single-judge district, the
parties knew that the resident judge would be the trial judge
unless he was disqualified.8 But the court concluded that a
peremptory challenge of the resident judge was timely because it
had been made within five days after express notice that the case
was assigned to that judge.9 The court reasoned that the
critical factor in determining whether the peremptory challenge
was timely was not the partys knowledge that the district was a
single-judge district, but when the court gave express notice
that the case was assigned to that judge.10 The Morgan decision
appears to be based upon a sound policy consideration: the
parties need to have a clear and unambiguous assignment to a
specific judge in order to start the time period in which they
can exercise a peremptory challenge.
The record does not reflect any express notice that
Juarezs case was assigned to Judge Bolger until shortly before
Juarezs peremptory challenge. The first formal assignment of a
trial judge appears to have been the assignment to the magistrate
after Juarez consented to trial by magistrate on May 9, 2008. It
was only after the State peremptorily challenged the magistrate
that the case was expressly assigned to Judge Bolger. After that
assignment, Juarez promptly filed his peremptory challenge of
Judge Bolger. His challenge was therefore timely.
The State also argues that Juarez waived his right to a
peremptory challenge because he participated in hearings before
Judge Bolger knowing that Judge Bolger was assigned to the case.
As the State acknowledges, however, Alaska Criminal Rule 25(d)(5)
provides that a party loses the right to peremptorily challenge a
judge if knowing that the judge has been permanently assigned to
the case, [he] participates before the judge in an omnibus
hearing, any subsequent pretrial hearing, a hearing under Rule
11, or the commencement of trial.11 Although it is true that
Juarez participated in several hearings before Judge Bolger, as
we have previously pointed out, Juarez was not given any express
notice that the case had been permanently assigned to Judge
Bolger.
We accordingly conclude that Judge Bolger erred in
finding that Juarezs peremptory challenge was untimely.
The order denying Juarezs peremptory challenge is
REVERSED.
_______________________________
1 Alaska R. Crim. P. 25(d)(1).
2 Alaska R. Crim. P. 25(d)(2).
3 Alaska R. Crim. P. 25(d)(5).
4 AS 11.41.230(a)(1).
5 AS 11.61.118(a).
6 AS 22.15.120(a)(6).
7 635 P.2d 472, 478 n.9 (Alaska 1981).
8 Id. at 477.
9 Id. at 477 n.7.
10 Id. at 478 n.9.
11 (emphasis added).
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