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          IN THE COURT OF APPEALS OF THE STATE OF ALASKA

DANIEL MATTHEW McMULLEN,
                                                   Court of Appeals No. A-12955
                         Appellant,               Trial Court No. 3PA-17-1209 CR

                  v.
                                                            OPINION
STATE OF ALASKA,

                         Appellee.                    No. 2609 — July 27, 2018


           Appeal from the District Court, Third Judicial District, Palmer,
           David Zwink and Vanessa White, Judges.

           Appearances: Windy Hannaman (initial brief) and Renee
           McFarland (supplemental brief), Assistant Public Defenders,
           and Quinlan Steiner, Public Defender, Anchorage, for the
           Appellant. Donald Soderstrom, Assistant Attorney General,
           Office of Criminal Appeals, Anchorage, and Jahna Lindemuth,
           Attorney General, Juneau, for the Appellee.

           Before: Mannheimer, Chief Judge, and Allard and Wollenberg,
           Judges.

           Judge WOLLENBERG.
             Daniel Matthew McMullen appeals the denial of his judicial peremptory
challenge.1 Under Alaska Criminal Rule 25(d), the prosecution and the defense in a
criminal case are each entitled to one change of judge as a matter of right. In this case,
the court denied McMullen’s challenge of District Court Judge John W. Wolfe on the
ground that McMullen had previously exercised a peremptory challenge against a
different judge, Superior Court Judge Kari Kristiansen.
             On appeal, McMullen argues that his prior peremptory challenge never took
effect because, two days after he challenged Judge Kristiansen, and before his case was
reassigned to another judge, the State dismissed the only pending felony charge against
him. At the next scheduled hearing, his case (which now consisted of a single
misdemeanor charge) was assigned to Judge Wolfe, whom McMullen promptly
challenged. McMullen argues that since his initial peremptory challenge of Judge
Kristiansen was never ruled on, that challenge became moot once the felony count was
dismissed and his case was reassigned to a district court judge. Thus, McMullen
contends that he was entitled to exercise a new peremptory challenge.
             However, for the reasons explained in this opinion, we disagree with the
premise that McMullen’s peremptory challenge of Judge Kristiansen became moot once
the State dismissed the felony charge. Accordingly, McMullen’s timely challenge of
Judge Kristiansen remained effective, and he was not entitled to exercise a second
challenge against Judge Wolfe.
             We therefore affirm the denial of McMullen’s peremptory challenge of
Judge Wolfe.




   1
       See Alaska R. App. P. 216(a)(2).

                                          –2–                                        2609

       Underlying facts
              In July 2017, McMullen was charged with one count of second-degree
misconduct involving a controlled substance, a class B felony,2 and one count of fourth-
degree misconduct involving a controlled substance, a class A misdemeanor.3 At
McMullen’s first appearance, District Court Judge William Estelle assigned a superior
court judge, Judge Kristiansen, to the case for trial, and he scheduled a preliminary
hearing in the district court.4
              Two days later, McMullen filed a timely “Notice of Change of Judge” form,
peremptorily challenging Judge Kristiansen.5
              Before McMullen’s case was reassigned to another superior court judge,
the State dismissed the felony charge against McMullen, leaving only the misdemeanor
charge pending. Accordingly, when the parties appeared in court for what would have
been the felony preliminary hearing, Judge Estelle reassigned McMullen’s case to a
district court judge, Judge Wolfe, and set the case for a district court pretrial conference.
              That same day, McMullen filed a second Notice of Change of Judge, this
time challenging Judge Wolfe.
              District Court Judge David Zwink — and Superior Court Judge Vanessa
White, on reconsideration — denied McMullen’s challenge of Judge Wolfe, ruling that
McMullen had already exercised his one peremptory challenge allowed by Criminal Rule
25(d) when he challenged Judge Kristiansen.



   2
       AS 11.71.030(a)(1)(C) & (d).
   3
       AS 11.71.050(a)(4) & (b).
   4
       Alaska R. Crim. P. 5(e)(2).
   5
       See AS 22.20.022(c); Alaska R. Crim. P. 25(d).

                                            –3–                                         2609

                McMullen now appeals the denial of his peremptory challenge of Judge
Wolfe.


         A preliminary question regarding the validity of the initial assignment to
         Judge Kristiansen
                Following the initial briefing in this case, we asked the parties to file
supplemental briefing on the following question: whether the pre-indictment assignment
of McMullen’s case to a superior court judge constituted a valid assignment for purposes
of exercising a peremptory challenge in a felony case. Under AS 22.20.022(c) — the
statute establishing a substantive right to peremptorily disqualify a judge — a
peremptory challenge must, absent good cause, “be filed 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.” Under the Alaska Supreme Court’s decision in
Morgan v. State, and this Court’s decision in State v. Watt, McMullen’s pre-indictment
felony case was not yet “at issue on a question of fact” in the superior court for purposes
of AS 22.20.022(c).6
                In their supplemental briefing, both parties agree that McMullen’s case was
validly assigned to Judge Kristiansen while his case was still in pre-indictment status,
and that McMullen could properly challenge Judge Kristiansen at that time. The parties
point to a footnote in Morgan, in which the supreme court stated:
                [W]e do not mean to indicate that a peremptory challenge
                filed in the earlier felony complaint proceeding would not
                have been effective in the subsequent indictment proceeding.
                But we do think that Morgan was entitled to rely on the
                wording of the rule, and exercise his peremptory rights within


   6
         Morgan v. State, 635 P.2d 472 (Alaska 1981); Watt v. State, 61 P.3d 446 (Alaska App.
2003).

                                             –4–                                        2609

              the five-day period as applied to the indictment, rather than
              as applied to the earlier felony complaint which was not
              pursued.[7]
              This footnote convinces us that this case does not hinge on the timing of
Judge Kristiansen’s assignment. As we noted in Smith v. State, a party’s right to
peremptorily challenge a judge “is not limited to judges who have been formally
assigned to the case”; a party may exercise a peremptory challenge even prior to an
official assignment.8 Thus, even absent a formal assignment of this case to Judge
Kristiansen at McMullen’s first appearance, McMullen could validly exercise a
peremptory challenge of Judge Kristiansen.
              We therefore agree with the parties that the real question in this appeal is
whether McMullen’s peremptory challenge of Judge Kristiansen was effective in light
of subsequent events.


       Why we conclude that McMullen’s challenge of Judge Wolfe was properly
       denied
              On appeal, McMullen argues that his peremptory challenge of Judge
Kristiansen was rendered moot when, prior to a ruling on his challenge, the State
dismissed the only pending felony charge against him and his case was reassigned to a
district court judge. McMullen argues that, as a result, he was entitled to exercise a new
peremptory challenge against Judge Wolfe.



   7
       Morgan, 635 P.2d at 476 n.5.
   8
        Smith v. State, 887 P.2d 979, 981 (Alaska App. 1994) (citing Gieffels v. State, 552
P.2d 661, 669 (Alaska 1976)); cf. Schmid v. Miller, 619 P.2d 1, 2 (Alaska 1980) (concluding
that the defendant’s peremptory challenge was timely filed since it preceded the judge’s
official assignment to the case).

                                           –5–                                        2609

              The underlying premise of McMullen’s argument is that a peremptory
challenge is not self-executing, but instead must be “ruled on” to determine whether it
is timely, to ensure that the party has not already exercised a challenge, and to determine
whether the party has waived the challenge by participating in certain substantive
proceedings in front of the challenged judge.9
              In contrast, the State argues that McMullen’s challenge of Judge
Kristiansen took effect immediately upon its filing. The State’s argument is premised
on the notion that when an apparently timely challenge is made, the challenged judge
must be immediately removed from the case (with limited exceptions).10 The State
therefore contends that McMullen had already exhausted his sole peremptory challenge
by the time his case was reassigned to Judge Wolfe.
              We need not resolve the question of precisely when a peremptory challenge
becomes effective. Even if we concluded that a peremptory challenge does not become
effective until there has been a formal ruling as to its validity (which in this case occurred
after the State dismissed the felony charge), we disagree with McMullen that the transfer
of his case to the district court rendered his challenge of Judge Kristiansen moot.
              A superior court judge is authorized to preside over trials in both the
superior court and the district court.11 Thus, McMullen’s challenge of Judge Kristiansen
was not moot after the transfer of his case to the district court; Judge Kristiansen could


   9
      See Alaska R. Crim. P. 25(d) (setting out the procedural requirements for a judicial
peremptory challenge).
   10
       See Alaska R. Crim. P. 25(d)(3) (“When a request for change of judge is timely filed
under this rule, the judge shall proceed no further in the action, except to make such
temporary orders as may be absolutely necessary to prevent immediate and irreparable injury
before the action can be transferred to another judge.”).
   11
        See AS 22.10.020(a); AS 22.15.060(b).

                                            –6–                                          2609

still have been his trial judge, or she could have covered for Judge Wolfe in a pretrial
hearing or other proceeding.12
              Additionally, Judge Kristiansen might still have heard McMullen’s case if
the State later decided to indict McMullen on the dismissed felony charge and the case
was transferred to the superior court. As the Alaska Supreme Court has recognized,
“where two proceedings involve the same defendant and the necessity of proving the
same facts and issues, a judge who was peremptorily challenged in the prior proceeding
is automatically disqualified at any proceeding against the defendant at which those same
charges are at issue.”13 As we noted earlier, the supreme court in Morgan relied on this
language to conclude that a peremptory challenge filed against a superior court judge at
the felony complaint stage would be effective in a subsequent post-indictment
proceeding in the same case.14         This fact gives McMullen’s challenge of Judge
Kristiansen ongoing effect.15
              McMullen argues that because no one acted on his peremptory challenge
of Judge Kristiansen while his case was still in the superior court, he was deprived of his


   12
       See, e.g., Juarez v. State, 193 P.3d 773, 774-75 (Alaska App. 2008) (superior court
judge assigned misdemeanor case to himself for trial).
   13
        See Morgan v. State, 635 P.2d 472, 476 n.5 (Alaska 1981) (citing McKinnon v. State,
526 P.2d 18, 25 (Alaska 1974)); see also State v. Galbraith, 199 P.3d 1216, 1219 (Alaska
App. 2009) (holding that where the original indictment was dismissed due to the defendant’s
incompetence to stand trial, and a subsequent indictment was issued, the judge who was
removed from the original proceedings due to a peremptory challenge remained disqualified
in the later proceedings on the second, identical indictment).
   14
        Morgan, 635 P.2d at 477-78.
   15
       See Fairbanks Fire Fighters Ass’n, Local 1324 v. Fairbanks, 48 P.3d 1165, 1167
(Alaska 2002) (noting that an issue is moot only if “it is no longer a present, live controversy,
and the party bringing the action would not be entitled to relief, even if it prevails”).

                                             –7–                                            2609

right to a peremptory challenge under Criminal Rule 25(d). But we see no reason to treat
a defendant whose case is quickly reassigned to another superior court judge differently
from a defendant whose case reassignment is slightly delayed.16 Neither the fact that a
criminal case is transferred from the superior court to the district court nor the timing of
that transfer entitles a party to an additional challenge.
              We acknowledge that, absent a future indictment in this case, the likelihood
of Judge Kristiansen sitting on McMullen’s case in lieu of Judge Wolfe is low, since
there are two other district court judges in Palmer. But this would not necessarily be true
in a smaller court location, where there is only one district court judge. In these
locations, a successful peremptory challenge of the district court judge assigned to the
case after dismissal of the felony charges could result in reassignment of the case to the
very superior court judge that the defendant originally sought to remove from the case.17
              We note that under current law (the Watt and Morgan decisions that we
discussed earlier), McMullen could have waited to exercise his peremptory challenge
until after he was indicted. Had McMullen refrained fromchallenging Judge Kristiansen,
he would have been entitled to either challenge Judge Wolfe when his case became a
misdemeanor case and was assigned to the district court, or to challenge Judge
Kristiansen if he was subsequently indicted on the felony charge and his case was




   16
       Cf. Hickox v. Superior Court, 505 P.2d 1086, 1089 (Ariz. App. 1973) (despite
expiration of judge’s pro tem service two weeks after party filed peremptory challenge
against that judge, party not entitled to have right to peremptory challenge reinstated, even
though subsequent events essentially rendered that challenge unnecessary).
   17
       See, for example, Michael v. State, 2016 WL 4937867 (Alaska App. Sept. 14, 2016)
(unpublished), in which pretrial hearings in a Bethel misdemeanor case were held before a
superior court judge before being assigned to a district court judge for trial.

                                           –8–                                          2609

transferred to the superior court for arraignment on that indictment.18 At that point,
McMullen’s case would have been “at issue upon a question of fact” in the superior
court. And, assuming McMullen had not previously exercised a peremptory challenge,
or waived his right to challenge Judge Kristiansen by participating before her in any of
the substantive proceedings set out in Criminal Rule 25(d)(5), the five-day time limit for
challenging Judge Kristiansen would have started anew.
              But because McMullen did challenge Judge Kristiansen, he exhausted the
one peremptory challenge to which he is entitled. He was not thereafter entitled to
exercise another peremptory challenge against a different judge.


        Conclusion
              We AFFIRM the denial of McMullen’s peremptory challenge of Judge
Wolfe.




   18
        Watt, 61 P.3d at 447-48; see also Morgan, 635 P.2d at 476-77.

                                          –9–                                        2609

