of Appeals No. A-12027 Trial Court Case # 3PA-15-00504 CR
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Brown petitions for hearing from a court of appeals'
decision affirming his convictions of sexual abuse of a minor
and incest. Brown argues that his appellate counsel had a
conflict of interest and that Judge Suddock should have been
disqualified from the appeals panel.
response, the State argues that Brown can add these claims to
his pending post-conviction relief application. Both of
Brown's claims may involve factual disputes that would be
difficult for this court to review without a trial court
record. And both claims may be appropriate for
resolution in the post-conviction process.
based on the State's suggestion, we DENY Brown's
petition for hearing.
at the direction of the court.
WINFREE, Justice, concurring in part and dissenting in part.
that Rory Brown's assertion of ineffective assistance of
appellate counsel in connection with his appeal to the court
of appeals is an issue that should be included in his pending
petition for post-conviction relief. But I have a different view
regarding Brown's claim of bias by one judge
participating on his appeal panel.
note that Brown appears before us self-represented, having
dispensed with court-appointed counsel after a representation
hearing. He therefore is entitled to procedural assistance
from this court if it is clear he is seeking identifiable
relief, there is an avenue by which that relief might be
sought, and it is within our authority to place him on that
clear that Brown seeks relief for a claim of judicial bias by
one judge who participated in his appeal to the court of
appeals. Brown asserts, and it appears undisputed, that in
2009 superior court judge John Suddock presided over
Brown's child custody proceedings and awarded Brown
custody of his three biological children and two
stepdaughters. Two of those children apparently were subject
to the sexual abuse underlying Brown's criminal
convictions in the superior court.
appealed his criminal conviction to the court of appeals in
August 2014. At that time two pro tern judges had been
appointed by the Chief Justice to take case assignments in
the court of appeals: retired court of appeals judge Robert
Coats (Order No. 6478) and district court judge Patrick
Hanley (Order No. 6479). Judge Suddock was appointed by the
Chief Justice to act as a pro tern judge on the court of
appeals effective September 10, 2015 (Order No. 6629). When
the briefing for Brown's appeal was complete in February
2017, all three pro tern judges remained available for
specific assignment to his appeal under then-current orders:
Judge Coats (Order No. 6790), Judge Hanley (Order No. 6789),
and Judge Suddock (Order No. 6760).
Suddock was assigned to participate in Brown's appeal,
apparently under the court of appeals' internal
assignment procedures. But Brown was not given notice of this
assignment. And because no oral argument was held, the first
notice Brown had of Judge Suddock's involvement came when
the court's opinion was issued. Brown now argues that
Judge Suddock was biased, "should have recus[ed]
himself, " and "was just correcting a wrong he
feels he made when he upheld my conviction . . . because they
were the same children he gave me custody of in
importantly, from my perspective, Brown asserts that it was
legal error to deprive him of the right to challenge Judge
Suddock's participation in the appeal. In my view Brown
has raised an important legal issue of first impression that
deserves this court's consideration: Is it legal error
when a multi-judge panel effectively cloaks one decision
maker's identity until its final decision is issued,
leaving the litigant no opportunity to seek the panel
member's recusal under AS 22.20.020(a)(9)? If it is legal
error, what is the remedy?
court seems persuaded by the State's informal
"suggestion" that the best way to handle this
alleged legal error is through post-conviction relief
proceedings. I would prefer to take the matter up and decide
the two questions after full briefing rather than simply
accept the State's "suggestion" in response to
Brown's petition for hearing. Absent that, I see no
reason we should not refer Brown's petition to the court
of appeals with an order that it be considered a motion for
Judge Suddock's recusal for the reasons stated in the
petition. For example, we recently referred a portion of a
petition for hearing to the court of appeals for
consideration as a petition for rehearing on an argument the
court of appeals had overlooked. Exercising this same
authority here would be consistent with our obligation to
assist a self-represented litigant in a procedural
matter. And ...