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McMullen v. State

Court of Appeals of Alaska

July 27, 2018

DANIEL MATTHEW McMULLEN, Appellant,
v.
STATE OF ALASKA, Appellee.

          Appeal from the District Court, Third Judicial District, Trial Court No. 3PA-17-1209 CR Palmer, David Zwink and Vanessa White, Judges.

          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.

          OPINION

          WOLLENBERG JUDGE

         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.

         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.

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

         A preliminary question regarding the validity of the initial ...


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