Opinion
Court of Appeals No. A-10143.
August 20, 2008.
Appeal from the District Court, Third Judicial District, Kenai, Philip R. Volland and Jennifer K. Wells, Judges, Trial Court No. 3KN-07-1951 CR.
Renee McFarland, Assistant Public Defender, Anchorage, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Angela G. Jamieson, Assistant District Attorney, and June Stein, District Attorney, Kenai, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Patrick J. Koivisto filed a notice of change of judge to exercise his right to a peremptory challenge of Magistrate Jerry D. Anderson. The court denied Koivisto's challenge as untimely. We conclude that Koivisto did not have reasonable access to an attorney before the five-day period for exercising his peremptory challenge expired. We therefore rule that the court abused its discretion by denying the peremptory challenge. Facts and proceedings
On October 19, 2007, Koivisto was charged by information with two counts of attempted third-degree assault and one count of driving while under the influence. He was arraigned on those charges on November 2, 2007, before Magistrate Jerry D. Anderson.
AS 11.41.220(a)(1)(A), (B) AS 11.31.100.
AS 28.35.030(a)(2).
At arraignment, Koivisto asked for a public defender. Magistrate Anderson denied the oral request for a public defender but told Koivisto he could submit a written application at his next representation hearing. Magistrate Anderson then vacated the November 21 representation hearing and scheduled a new hearing for December 11.
Koivisto failed to appear at the December 11 hearing. (Koivisto later claimed that he failed to appear because he believed his representation hearing had been vacated). On December 21, Koivisto was arrested on a bench warrant and brought before Magistrate Anderson. Magistrate Anderson asked Koivisto if he had hired an attorney and Koivisto said he inquired about the cost of an attorney and learned it would cost $5000. He said he could not afford an attorney because he had been laid off from his job. Magistrate Anderson told Koivisto to fill out an application for court-appointed counsel and he scheduled another representation hearing for December 26.
At the December 26 hearing, Magistrate Matthew Christian appointed the Public Defender Agency to represent Koivisto. Two days later, on December 28, Koivisto's assistant public defender filed a notice of peremptory challenge of Magistrate Anderson. Superior Court Judge Philip R. Volland denied the notice as untimely on January 17, 2008. Koivisto then filed a motion asking the court to reconsider the order denying his peremptory challenge. That motion was denied on February 12, 2008, by acting District Court Judge Jennifer K. Wells. Koivisto appeals the decision denying his peremptory challenge under Appellate Rule 216(a)(2).
Why we conclude the court should have granted the peremptory challenge
Under AS 22.15.120(6), a magistrate has authority to "hear, try, and enter judgment" in a misdemeanor case that is not a minor offense only if the defendant "consents in writing that the magistrate may try the case." In district court, Koivisto did not assert that Magistrate Anderson had no authority to try his case without his written consent. Rather, he filed a peremptory challenge of Magistrate Anderson. The only question presented in this appeal is whether the trial court should have granted that peremptory challenge.
Criminal Rule 25 provides that a party is entitled as a matter of right to one change of judge in a criminal case. A notice of change of judge is timely if it is filed within five days after notice that the case has been assigned to a specific judge.
The parties do not dispute that the case was assigned to Magistrate Anderson on November 2, 2007, when the pretrial order was issued. Koivisto did not file his notice of peremptory challenge until December 28, almost two months later. Koivisto nevertheless argues, relying on Riley v. State, that the court should have granted his peremptory challenge.
608 P.2d 27 (Alaska 1980).
In Riley, the two defendants were informed of their rights at arraignment, including the right to a peremptory challenge of any judge assigned to their case. A judge was assigned at arraignment, and the Public Defender Agency was appointed to represent the defendants. But the Public Defender Agency did not receive notice of the appointment for about a month. After the agency received notice, defendants' counsel immediately filed notice for a change of judge. The court denied the notice as untimely.
Id. at 28.
Id.
Id.
Id.
Id.
The Alaska Supreme Court ruled that the trial court had abused its discretion by not waiving, under Criminal Rule 53, the five-day limitation in Criminal Rule 25(d), because the defendants had no opportunity to consult counsel before the time to exercise their peremptory challenge had expired. (Under Criminal Rule 53, a court may relax or dispense with the criminal rules in any case in which strict adherence to the rules would work an injustice.) The supreme court reasoned that the decision to peremptorily challenge a judge "is a strategic one which should ordinarily be made by a lawyer after consultation with his client" and that a non-lawyer typically "will not have sufficient information concerning the assigned judge to make an intelligent decision as to whether the judge should be excused." This court has since construed Riley to mean that an unrepresented defendant who does not have reasonable access to counsel does not forfeit his peremptory challenge right.
Id. at 29.
Id. at 29 n. 11.
Id. at 29.
Trudeau v. State, 714 P.2d 362, 366 (Alaska App. 1986).
The State argues that Koivisto's case is distinguishable from Riley because "by his own statement, [Koivisto] acknowledged that he had time to speak with counsel." On December 21, 2007, when Magistrate Anderson asked Koivisto if he had hired an attorney, Koivisto said: "I made inquiries for about how much I would need to have and it would be about $5000 for me to get a lawyer and I've been laid off." Magistrate Anderson gave Koivisto an application for court-appointed counsel and directed him to fill it out before the December 26 representation hearing. At that hearing, Magistrate Christian appointed the Public Defender Agency to represent Koivisto.
We conclude that Riley governs the result in this case. Koivisto told the court he made inquiries about how much it would cost to hire an attorney and concluded he could not afford one because he had been laid off from his job. He did not assert that he consulted any attorneys about his case, other than to inquire about the cost of representation. Koivisto's conclusion that he could not afford an attorney was validated at the December 26 representation hearing, when Magistrate Christian determined that Koivisto was indigent and appointed counsel to represent him. Two days after the court appointed the Public Defender Agency, Koivisto's attorney filed a peremptory challenge of Magistrate Anderson. That is, as soon as Koivisto secured counsel, he and his attorney diligently pursued a peremptory challenge. Given these circumstances, we conclude that Koivisto did not have reasonable access to an attorney before the time to exercise his peremptory challenge expired. We therefore conclude that the trial court abused its discretion by denying Koivisto's peremptory challenge. Conclusion
See Wright v. State, 38 P.3d 545, 547 (Alaska App. 2002) (" 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").
See Trudeau, 714 P.2d at 366.
See Riley, 608 P.2d at 29.
We REVERSE the decision denying Koivisto's peremptory challenge of Magistrate Anderson.