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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@ akcourts.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MAMIE S. TINKER,
Court of Appeals No. A-12677
Petitioner, Trial Court No. 4HB-16-034 CR
v.
O P I N I O N
STATE OF ALASKA,
Respondent. No. 2530 - December 23, 2016
Petition for Review from the District Court, Fourth Judicial
District, Bethel, Nathaniel Peters, Judge.
Appearances: Kelly R. Taylor, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for the Petitioner.
Kenneth M. Rosenstein, Assistant Attorney General, Office of
Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney
General, Juneau, for the Respondent.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge.*
Judge MANNHEIMER.
* Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
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The defendant in this case, Mamie S. Tinker, is charged with fourth-degree
assault arising out of an incident that occurred in Hooper Bay. Alaska Criminal Rule
18(a) designates Bethel as the presumptive trial site for offenses occurring in Hooper
Bay, but Tinker's attorney filed a motion under Criminal Rule 18(g) asking the district
court to hold her trial in Hooper Bay.
Criminal Rule 18(g) authorizes a court to change the venue of a criminal
trial "under the standards listed in AS 22.10.040". In her motion, Tinker relied on the
portion of AS 22.10.040 which declares that venue can be changed "when the
convenience of witnesses and the ends of justice would be promoted by the change of
venue". She pointed out that all of the prospective witnesses are residents of Hooper
Bay, and she offered evidence that Hooper Bay has a courthouse and other facilities
adequate to accommodate a misdemeanor trial.
The district court denied Tinker's request for a change of venue, relying on
this Court's decision in Wholecheese v. State, 100 P.3d 14, 16 (Alaska App. 2004). The
district court interpreted Wholecheese to mean that a judge has no authority to hold a trial
in a location that is neither (1) designated as the presumptive trial site by Criminal Rule
18 nor (2) designated by the Administrative Director as an approved additional trial site
(in Administrative Bulletin 27).
Based on this interpretation of Wholecheese, the district court concluded
that even if Tinker was correct in asserting that Hooper Bay had suitable facilities for a
misdemeanor trial, and that a change of venue to Hooper Bay would promote the
convenience of witnesses and the ends of justice, all of this was irrelevant - because the
court had no authority to hold Tinker's trialin Hooper Bay even if these things were true.
Tinker now petitions this Court to review and reverse the district court's
ruling on her request for a change of venue.
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In her petition, Tinker points out that the Wholecheese decision deals only
with requests for an alternate trial site under Rule 18(e) - motions for a change of venue
by right. Because Tinker is seeking a discretionary change of venue under Rule 18(g),
she argues that Wholecheese does not control her case, and that the district court has the
authority under Criminal Rule 18(g) to change the site of the trial to any location if the
criteria of AS 22.10.040 are met - even when the proposed trial location (1) is not
designated as the presumptive trial site by Criminal Rule 18, and (2) has not been
designated by the Administrative Director as an approved additional trial site.
The State agrees with Tinker that Wholecheese only governs requests for
change of venue under Criminal Rule 18(e), and that a court's authority to order a change
of venue under Criminal Rule 18(g) is not limited to the locations that are listed as
approved trial sites in Rule 18 or that have been designated as additional trial sites by the
Administrative Director.
We agree with the parties that Wholecheese does not govern requests for
change of venue under Criminal Rule 18(g), and we further agree with the parties that
the district court has the authority to hold Tinker's trial in Hooper Bay if that venue is
appropriate under the criteria listed in AS 22.10.040.
We therefore VACATE the district court's decision on Tinker's motion for
a change of venue. We direct the district court to hold a hearing to investigate Tinker's
assertions that the facilities in Hooper Bay are adequate for holding a misdemeanor trial,
and that the convenience of witnesses and the ends of justice would be promoted by a
change of venue to Hooper Bay.
We express no opinion on these matters, and we do not retain jurisdiction
over this case.
- 3 - 2530
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