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Brown v. State

Supreme Court of Alaska

March 30, 2018

STATE OF ALASKA, Respondent.

         Court of Appeals No. A-12027 Trial Court Case # 3PA-15-00504 CR

          Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.


         Rory 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.

         In 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.[1] And both claims may be appropriate for resolution in the post-conviction process.[2]

         Therefore, based on the State's suggestion, we DENY Brown's petition for hearing.

         Entered at the direction of the court.

          WINFREE, Justice, concurring in part and dissenting in part.

         I agree 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.[1] But I have a different view regarding Brown's claim of bias by one judge participating on his appeal panel.

         I first 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 avenue.[2]

         It is 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.

         Brown 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).

         Judge 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 2009."[3]

         More 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?[4]

         The 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.[5] Exercising this same authority here would be consistent with our obligation to assist a self-represented litigant in a procedural matter.[6] And ...

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