from the Superior Court No. 3AN-13-10472 CR, Third Judicial
District, Anchorage, Michael L. Wolverton, Judge.
Adam Bartlett, Anchorage, under contract with the Office of
Public Advocacy, for the Appellant.
Terisia K. Chleborad, Assistant Attorney General, Office of
Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney
General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge. [*]
James Treptow appeals his conviction for felony driving under
the influence. Treptow's offense was classified as a
felony because he had two prior convictions for DUI within
the preceding ten years, one from Alaska and one from
appeal, Treptow argues that his Arizona DUI conviction should
not be counted because of a purported difference between
Arizona law and Alaska law.
Arizona law, a person charged with a crime (felony or
misdemeanor) is entitled to waive their right to a jury
trial, but only with the consent of the government and the
approval of the court. Treptow acknowledges that Alaska law is
the same with respect to defendants charged with felonies,
but Treptow asserts that misdemeanor defendants in Alaska
have an absolute right to demand a bench trial, even when the
government and the court do not consent.
on this purported difference between Alaska law and Arizona
law, Treptow argues that Arizona DUI convictions do not
qualify as "prior convictions" for purposes of
Alaska's felony DUI law.
reasons explained in this opinion, we conclude that
Treptow's argument is based on a misreading of Alaska
Criminal Rule 23(a). We hold that, under Criminal Rule 23(a),
a defendant's waiver of jury trial must be approved by
both the government and the court, regardless of whether the
defendant is being tried for a felony or a misdemeanor.
rule at issue: Alaska Criminal Rule 23(a)
Criminal Rule 23(a) states:
(a) Trial by Jury. Cases required to be tried by
jury shall be so tried unless the defendant waives a jury
trial. In felony cases, the waiver must be in writing with
the approval of the court and the consent of the state. In
misdemeanor cases, the waiver may be in writing or made on
the record in open court.
be seen, the second sentence of Rule 23(a) says that a felony
defendant's waiver of jury trial is conditioned on three
things: (1) the waiver must be in writing; (2) the court must
approve; and (3) the state must consent.
third sentence of Rule 23(a) then says that, in misdemeanor
cases, the waiver may either be in writing or made on the
record in open court.
the third sentence of Rule 23(a) does not expressly reiterate
the requirements of "approval of the court" and
"consent of the state", Treptow interprets the rule
as saying that these elements are not required in misdemeanor
cases. According to Treptow, Criminal Rule 23(a) gives
misdemeanor defendants an absolute right to waive a jury and
demand a bench trial, regardless of whether the court and the
third sentence of Rule 23(a) could reasonably be interpreted
in a different light: it could be read as simply relaxing the
"writing" requirement that governs waivers of jury
trial in felony cases - so that, in misdemeanor cases, jury
waivers can be either written or oral.
resolve this ambiguity, we have examined the legislative
history of Alaska Criminal Rule 23(a). For the reasons we are
about to explain, we conclude that when a defendant wishes to
waive the right to a jury trial, Criminal Rule 23(a) requires
the approval of the court and the consent of the government
in all cases - both felonies and misdemeanors.
pre-statehood history of Alaska Criminal Rule 23(a)
history of Alaska Criminal Rule 23(a) begins in 1930, when
the United States Supreme Court decided Patton v. United
States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930).
issue addressed in Patton was whether, consistent
with the Sixth Amendment's guarantee of jury trial, a
criminal defendant could ever waive their right to
have a jury decide their case. The underlying question (as
framed by the Supreme Court) was whether the guarantee of
jury trial should be viewed as a fundamental aspect of the
form of government guaranteed by the federal constitution, or
whether the guarantee of jury trial should be viewed as a
personal right of a criminal defendant - a right that could
common law, a defendant was not allowed to waive a jury
trial. And in 1930, at the time of the
Patton decision, there was still significant
judicial authority holding that the right of jury trial could
not be waived - on the ground that the jury was an essential
aspect of a properly constituted criminal
tribunal. But in Patton, the Supreme Court
rejected this view of the law and held that the right to jury
trial was a right conferred on defendants, and that it could
the Supreme Court declared that a defendant's right to
waive a jury trial was not absolute. The Court cautioned that
having a jury sit as the fact-finder in a criminal case is
not simply a right of the defendant; it is also an important
element of the criminal justice system itself. Thus, both the
trial judge and the government should have to approve any
waiver of jury trial offered by a defendant:
Trial by jury is the normal and, with occasional exceptions,
the preferable mode of disposing of issues of fact in
criminal cases above the grade of petty offenses. ... [T]he
value and appropriateness of jury trial have been established
by long experience, and are not now to be denied. Not only
must the right of the accused to a trial by a constitutional
jury be jealously preserved, but the maintenance of the jury
as a fact-finding body in criminal cases is of such
importance and has such a place in our traditions, that,
before any waiver can become effective, the consent of
government counsel and the sanction of the court must be had,
in addition to the express and intelligent consent of the
defendant. And the duty of the trial court in that regard is
not to be discharged as a mere matter of rote, but with sound
and advised discretion, with an eye to avoid unreasonable or
undue departures from that mode of trial or from any of the
essential elements thereof, and with a caution increasing in
degree as the offenses dealt with increase in gravity.
Patton, 281 U.S. at 312-13, 50 S.Ct. at 263.
1944, based on the Supreme Court's decision in
Patton, Congress enacted Federal Criminal Rule 23(a)
- a rule based on the Patton decision.
Federal Criminal Rule 23(a) stated, "Cases required to
be tried by jury shall be so tried unless the defendant
waives a jury trial in writing with the approval of the court
and the consent of the government." Because Alaska
was a federal territory at the time, Federal Criminal Rule
23(a) was the law that governed criminal trials in Alaska.
current version, Federal Criminal Rule 23(a) states:
(a) Jury Trial. If the defendant is entitled to a
jury trial, the trial must be by jury unless:
(1) the defendant waives a jury trial in writing;
(2) the government consents; ...