Opinion
Court of Appeals No. A-13522 No. 6862
02-19-2020
CHRISTOPHER TWIFORD, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Wallace Tetlow, Tetlow Christie, LLC, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3KO-19-00062 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Kodiak, Stephen B. Wallace, Judge. Appearances: Wallace Tetlow, Tetlow Christie, LLC, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, Harbison, Judge, and Coats, Senior Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Christopher Twiford appeals from an order denying his peremptory challenge of Kodiak Superior Court Judge Stephen Wallace. For the reasons explained in this order, we reverse the superior court's order.
Background facts
Twiford was charged by complaint with multiple counts of felony assault against his domestic partner, J.F. In consultation with J.F., the parties negotiated a plea agreement under Alaska Criminal Rule 11. Judge Wallace presided over the Rule 11 proceedings (which occurred over the course of four hearings). At the first hearing, held on August 21, 2019, Twiford waived his right to an indictment and the parties presented the terms of the plea agreement. The hearing was continued because the court was unable to contact the victim. At the second hearing, the victim was represented by the Office of Victims' Rights, and the hearing was continued for a second and third time based on the court's concern that the agreement did not require the defendant to complete a domestic violence program. At the fourth hearing, held on September 11, 2019, Judge Wallace rejected the Rule 11 plea agreement. The case was then set for a pre-indictment hearing.
On September 26, 2019, the State obtained an indictment against Twiford. On the same day, the court issued a written notice of hearing, scheduling the arraignment for September 30, 2019. According to the pleadings, upon receipt of this notice, Twiford's attorney reviewed Courtview, and noted that Judge Wallace was listed as the "case judge." Twiford's attorney filed a notice of peremptory challenge to Judge Wallace that same day.
We note that it is unclear when Judge Wallace was entered as the "case judge" in Courtview. Express notice that Judge Wallace was permanently assigned to this case as the trial judge did not occur until the felony pretrial notice, which was issued September 30, 2019.
Judge Wallace denied the challenge as untimely. Specifically, the judge ruled that Twiford had forfeited his right to peremptorily challenge him as the trial judge by participating in the previous Rule 11 hearings. This appeal followed.
Our analysis of Twiford's claim
Under Alaska Criminal Rule 25(d), the prosecution and the defense in a criminal case are each entitled as a matter of right to one change of judge. However, this right can be waived either by failing to timely file a notice of peremptory challenge for a change of judge within five days of notice that the judge has been permanently assigned to the case or by participating in certain proceedings before the judge, knowing that the judge has been permanently assigned to the case. Alaska Criminal Rule 25(d)(5) provides, in pertinent part:
See Beier v. State, 413 P.3d 1245, 1246 (Alaska App. 2018).
See Alaska R. Crim. P. 25(d)(2)-(5).
(5) Waiver. A party loses the right under this rule to change a judge when the party, after reasonable opportunity to consult with counsel, agrees to the assignment of the case to a judge or 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.
In the current case, Twiford acknowledges that he appeared before Judge Wallace in "a hearing under Rule 11." But he asserts that he participated in the Rule 11 hearings without knowing that Judge Wallace had been "permanently assigned to the case," and therefore, his participation did not forfeit his right to peremptorily challenge Judge Wallace under Criminal Rule 25(d).
The State argues that Twiford was sufficiently on notice that Judge Wallace was "permanently assigned" to the case at the time of the Rule 11 hearings and that his participation in those hearings should therefore qualify as forfeiture under Criminal Rule 25(d). The State points out that the purpose of the Rule 11 hearings was to grant Judge Wallace the authority to issue case-dispositive rulings. And the State further points out that Twiford specifically waived his right to indictment so that Judge Wallace had felony jurisdiction to dispose of the case.
Resolution of this appeal turns on the meaning of the phrase "knowing that the judge was permanently assigned to the case." When we construe a statute or rule, "we must presume that the [drafters] intended every word, sentence, or provision of a statute to have some purpose, force, and effect, and that no words or provisions are superfluous."
See id.
See McDonnell v. State Farm Mut. Auto. Ins. Co., 299 P.3d 715, 721 (Alaska 2013) (internal citations omitted); see also Alascom, Inc. v. North Slope Borough, Bd. of Equalization, 659 P.2d 1175, 1178 n.5 (Alaska 1983) (noting that as a general rule, a "statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant") (quoting 2A C. Sands, Statutes & Statutory Construction § 46.06 (4th ed. 1973)).
The phrase "knowing that the judge was permanently assigned to the case" was added to Criminal Rule 25(d)(5) in 1988 by Alaska Supreme Court Order 875. The rule history indicates that the phrase was added in response to various Alaska Supreme Court decisions. These decisions emphasized that forfeiture of a judicial peremptory challenge should be found "only where the requisite participation occurs after the party is informed that the judge before whom he or she is appearing is the judge permanently assigned to hear the case or is assigned for trial." Subsequent decisions by this Court have also emphasized that a party must have been given adequate notice of the judge's permanent assignment before waiver under Criminal Rule 25(d)(5) can be found.
See Memorandum from William Cotton, Court Rules Attorney, to the Supreme Court Justices, (Nov. 27, 1987); Memorandum from William Cotton, Court Rules Attorney, to the Supreme Court Justices (May 6, 1986).
Tunley v. Anchorage Sch. Dist., 631 P.2d 67, 73 (Alaska 1980); see also Smith v. State, 616 P.2d 863, 865 (Alaska 1980) (applying the Tunley holding in a criminal case).
See e.g., Juarez v. State, 193 P.3d 773, 775 (Alaska App. 2008) (reversing denial of peremptory challenge because the defendant "was not given any express notice that the case had been permanently assigned to [the judge]" who conducted the pretrial hearings).
Based on this authority, Twiford argues that his participation in the Rule 11 hearings did not qualify as forfeiture under Criminal Rule 25(d)(5) because he did not receive "express notice" that Judge Wallace was "permanently assigned" to the case by virtue of his presiding over the Rule 11 hearings.
The State argues that "express notice" is not required in these circumstances because the nature of the hearing made it clear that the judge had been "permanently assigned" to the case. In other words, under the State's reasoning, because a Rule 11 hearing can end a case, any judge assigned to preside over a Rule 11 hearing should automatically be considered "permanently assigned" to the case.
There is some potential merit to the State's position. We note that, under Criminal Rule 25(d), a party forfeits their right to a judicial peremptory challenge when "knowing that the judge has been permanently assigned to the case," the party "participates before the judge in . . . the commencement of trial." We believe that, in most instances, it would be fair to presume that a party that begins trial with a judge has sufficient notice that the judge has been "permanently assigned to the case," even if no express notice of that fact has been provided.
However, we are not persuaded that similar notice should be presumed when a judge presides over a Rule 11 hearing. The record does not suggest that there is any uniform court policy with regard to judicial assignments to Rule 11 hearings. And as the Alaska Supreme Court noted in Padie v. State:
We can conceive of many instances in which both parties might be willing to have a particular judge take such a plea, while one or both would remain unwilling to have that same judge preside over a trial of the case, [or] impose sentence, or rule on other matters of substance, such as a motion to suppress.In Padie, the supreme court used this principle to construe the portion of Criminal Rule 25(d)(5) which provides that "[n]o provision of this rule shall bar a stipulation as to the judge before whom a plea of guilty or of nolo contendere shall be taken under Rule 11." The court construed this language as meaning that a timely peremptory challenge of a judge did not prevent the parties from later stipulating that a Rule 11 agreement could be heard before that otherwise preempted judge. As the court noted, "[t]he ability to go promptly before a judge for a change of plea, even though that judge may be otherwise disqualified, contributes to the efficient use of judicial manpower and the orderly disposition of matters."
Padie v. State, 566 P.2d 1024, 1028 (Alaska 1977).
Id. at 1027.
Id. at 1028.
Id.
Our decision in this case is driven by the same policy considerations. Like the Alaska Supreme Court, we can conceive of many instances in which a party may be willing, for expediency, to appear before a particular judge for the limited purpose of accepting a defendant's Rule 11 agreement, but the party would not be willing to let the same judge preside over a trial in the same case. Moreover, any confusion over when a judge is "permanently assigned" to a case can easily be alleviated by some form of oral or written notice that assignment to a Rule 11 hearing constitutes permanent assignment to the case. Such a notice could be done on a case-by-case basis or through general notices to all litigants in a particular jurisdiction.
In sum, Criminal Rule 25(d)(5) permits waiver to be found when a party participates in a Rule 11 hearing "knowing that the judge has been permanently assigned to the case." Here, the record shows that neither Twiford nor his attorneys knew that Judge Wallace was permanently assigned to his case at the time that the Rule 11 hearings occurred. Indeed, the record is ambiguous as to when exactly Judge Wallace was "permanently assigned" to this case. Thus, given the record presented here, we conclude that Twiford did not waive his right to peremptorily challenge Judge Wallace by participating in the Rule 11 hearings. Accordingly, we REVERSE the superior court's order denying Twiford's peremptory challenge of Judge Wallace.