from the District Court, Third Judicial District, Trial Court
No. 3PA-17-1209 CR Palmer, David Zwink and Vanessa White,
Hannaman (initial brief) and Renee McFarland (supplemental
brief), Assistant Public Defenders, and Quinlan Steiner,
Public Defender, Anchorage, for the Appellant.
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,
Matthew McMullen appeals the denial of his judicial
peremptory challenge. 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.
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.
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.
therefore affirm the denial of McMullen's peremptory
challenge of Judge Wolfe.
2017, McMullen was charged with one count of second-degree
misconduct involving a controlled substance, a class B
felony,  and one count of fourth-degree misconduct
involving a controlled substance, a class A
misdemeanor. 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
days later, McMullen filed a timely "Notice of Change of
Judge" form, peremptorily challenging Judge
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.
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.
preliminary question regarding the validity of the initial