Watt v. State , 61 P.3d 446 ( 2003 )

OPINION

STEWART, Judge.

This is a peremptory challenge appeal brought by Norman R. Watt under Alaska Appellate Rule 216(a)(2). Superior Court Judge pro tem Joel H. Bolger ruled that Watt’s Notice of Change of Judge under Alaska Criminal Rule 25(d) was untimely. For the reasons expressed here, we reverse the superior court.

On Saturday, July 6, 2002, the Valdez police received a report that Watt had engaged in sexual penetration with 12-year-old C.L. After investigating this report, the police arrested Watt and charged him by complaint with one count of first-degree sexual abuse of a minor.¹ The next day, July 7, 2002, Watt appeared before Judge Bolger in district court on the complaint. Judge Bolger appointed the Public Defender Agency to represent Watt, scheduled a preliminary hearing, and assigned himself to the case for trial. Watt received copies of the documents incorporating these orders and those same documents were faxed to the public defender. Within five days, an assistant public defender appeared for Watt and the case was continued by stipulation of the parties.

Within a few weeks, the parties reached a plea agreement. Under the plea agreement, Watt agreed to waive indictment and plead in superior court to an information that charged two counts of first-degree sexual abuse of a minor involving two victims, C.L. and another minor, K.M.L. The plea agreement specified that the superior court could impose no less than 10 years and no more than 15 years to serve on the two counts.

On August 30, 2002, Watt filed a request to transfer the case to the superior court for a change of plea on the information as contemplated by the plea agreement. He also filed a Notice of Change of Judge under Criminal Rule 25(d) to preempt Judge Bolger. Judge Bolger denied the challenge as untimely because he was first assigned to the case on July 7.

Alaska Statute 22.20.022 grants a party the substantive right to disqualify a judge peremptorily.² According to AS 22.20.022(c), a party must exercise that right “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[J”

In criminal eases, the procedure for implementing this right is specified in Criminal Rule 25.³ Alaska Criminal Rule 25(d)(2) now provides as follows:

(2) Procedure. A party may exercise the party’s right to a change of judge by filing a “Notice of Change of Judge” signed by counsel, if any, stating the name of the judge to be changed. The notice shall neither specify grounds nor be accompanied by an affidavit. The notice of change of judge is timely if filed within five days after notice that the case has been assigned to a specific judge.

Judge Bolger’s ruling that Watt’s challenge was untimely is understandable in light of this subsection of the rule because Watt’s notice was filed weeks after Judge Bolger assigned himself to the case. And the parties’ pleadings in the trial court did not alert Judge Bolger to any other authority.

But in Morgan v. State,⁴ the Alaska Supreme Court reviewed the denial of a peremptory challenge under circumstances similar to those in Watt’s case. Morgan first appeared on a felony complaint before Superior Court Judge Christopher R. Cooke sitting in the district court.⁵ At that time, Bethel was a single-judge location (as is Valdez where Judge Bolger sits). After the grand jury returned an indictment, the case was calendared for an arraignment in superi- or court with Judge Cooke assigned to the case.⁶ At the superior court arraignment, Morgan moved to disqualify Judge Cooke peremptorily but Judge Cooke denied the challenge as untimely.⁷

At that time, former Criminal Rule 25(d)(2) provided as follows:

At the time required for filing the omnibus hearing form, or within five days after a judge is assigned the ease for the first time, a party may exercise his right to change of judge by noting the request on the omnibus hearing form or by filing a ‘Notice of Change of Judge’ signed by counsel, if any, stating the name of the judge to be changed. A judge may honor a timely informal request for change of judge, entering upon the record the date of the request and the name of the party requesting it.

Reading the language of the statute together with the rule, the supreme court held that Morgan’s challenge at arraignment upon the entry of his plea was a timely exercise of his substantive statutory right.⁸ The supreme court ruled that a felony case is “at issue under a question of fact” under AS 22.20.022(e) when jurisdiction of the case is transferred to the superior court for a defendant’s plea upon the return of an indictment.⁹

Since Morgan was decided, the supreme court has amended Criminal Rule 25(d)(2) several times. But nothing in the amendments to the rule or the legislative history of those amendments suggests that the supreme court intended to modify their interpretation of the substantive statutory right discussed in Morgan.

Pursuant to the plea agreement, Watt’s case was transferred to superior court for a plea on the information. Watt attempted to challenge Judge Bolger when he requested this transfer for his plea. Even though Watt had an outstanding agreement to change his plea to the information, Watt’s case was not at issue on a question of fact under that information until the case was in the superior court for an entry of plea on that information.

We conclude that Morgan controls this case. Watt’s challenge was timely under Morgan. Thus, Judge Bolger’s assignment of the case to himself for trial in the superior court on July 7th while the case was still in district court could not extinguish Watt’s right to a peremptory challenge upon the entry of a plea in superior court.

The order denying Watt’s Notice of Change of Judge is REVERSED.

1 . AS 11.41.434(a).

2 . Gieffels v. State, 552 P.2d 661, 667-68 (Alaska 1976).

3 . Id.

4 . 635 P.2d 472 (Alaska 1981).

5 . Id. at 477.

6 . Id. at 474 n. 1.

7 . Id. at 474.

8 . Id. at 478.

9 . Id. at 477-78.