Tommy v. State

• Docket Number: Court of Appeals No. A-13293
• Decision Date: 26 May 2023
• Parties: Agnes Martina TOMMY, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

531 P.3d 365

Agnes Martina TOMMY, Appellant,

v.STATE of Alaska, Appellee.

Court of Appeals No. A-13293

Court of Appeals of Alaska.

May 26, 2023

Bradly A. Carlson, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.

Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde "Ed" Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.

Before: Wollenberg, Harbison, and Terrell, Judges.

OPINION

Judge WOLLENBERG.

Agnes Martina Tommy was convicted of two misdemeanor offenses under Alaska law following a jury trial in district court presided over by a magistrate judge. Under AS 22.15.120(a)(6), a magistrate may "hear, try, and enter judgments" in a misdemeanor case only "if the defendant consents in writing that the magistrate may try the case." But the record does not show that Tommy consented to be tried before a magistrate judge.

On appeal, Tommy argues that her lack of consent to trial before a magistrate judge requires reversal of her convictions. Furthermore, Tommy contends that this issue can be raised for the first time on appeal because the absence of her consent deprived the court of subject matter jurisdiction, and a defect in subject matter jurisdiction can be raised at any time. In response, the State argues that Tommy's lack of consent was merely a procedural error, not a prerequisite to subject matter jurisdiction. Thus, according to the State, because Tommy did not raise this issue in the trial court, she must show plain error on appeal.

For the reasons explained in this opinion, we agree with Tommy that she can raise this issue for the first time on appeal and is not required to demonstrate plain error, although we need not strictly decide whether the issue is "jurisdictional" in nature. Instead, we conclude that AS 22.15.120(a)(6) requires the express, personal consent of the defendant, and that defense counsel's failure to raise this issue in the trial court does not waive this requirement — particularly in the absence of any indication in the record that Tommy was ever informed that her case could not be tried before a magistrate judge without her consent. We therefore reverse Tommy's convictions and remand for a new trial.

Given this resolution, we need not reach Tommy's additional claim that the State committed discovery violations and that the court erred in denying her requested remedies for these violations.

Factual background

In August 2017, a Seward police officer responded to a report of a woman causing a disturbance outside a restaurant. Upon arriving at the scene, the officer encountered a woman, identified as Agnes Martina Tommy, who was "loud, yelling," and "highly intoxicated." Although the officer did not observe any crimes, Tommy was "stumbling all over the place" and was unable to provide her address or the contact information for someone who could care for her. Because Tommy appeared unable to care for herself, the officer took her into protective custody and transported her to a hospital.

According to the officer, at the hospital, Tommy continued to be agitated and aggressive, and she picked up a chair and began swinging it "every which way" before the officer pulled it from her. For this conduct, Tommy was arrested for disorderly conduct. Two officers transported Tommy to the local jail, where — according to the officers’ later testimony — she again became belligerent and kicked an officer who was attempting to conduct a strip search.

Based on Tommy's conduct at the hospital and at the jail, the State charged her with two counts of fourth-degree assault, in addition to the one count of disorderly conduct.¹

Because Tommy was charged with misdemeanor offenses under Alaska law, she was entitled to be tried before a district court judge.² Under AS 22.15.120(a)(6), Tommy could be tried before a magistrate judge, but only with her written consent.

Alaska Criminal Rule 5(f)(3) requires a judicial officer at a misdemeanor arraignment to "inform the defendant that the case may not be tried before a magistrate judge without the defendant's written consent." At Tommy's arraignment, however, the judicial officer did not inform her of this right.

Tommy also never provided written consent to be tried before a magistrate judge, as required by AS 22.15.120(a)(6). And there is no indication in the record before us that Tommy provided oral consent.

Despite this lack of consent, Tommy's case proceeded to a jury trial before a magistrate judge. The jury acquitted Tommy of fourth-degree assault for swinging the chair, but convicted her of disorderly conduct (for recklessly creating a hazardous condition for others) based on this same conduct.³ The jury also convicted Tommy of fourth-degree assault for kicking the police officer during booking at the jail.

This appeal followed.

The failure to comply with AS 22.15.120(a)(6) requires reversal of Tommy's convictions

On appeal, Tommy argues that the failure to procure her written consent to trial before a magistrate judge requires reversal of her convictions.

Magistrate judges are officers of the district court, but they have more limited authority. As we previously explained in Akers v. State , "From the days when Alaska was a territory, and up to the present day, Alaska has relied on judicial officers who do not necessarily have formal training in the law."⁴ These judicial officers have been referred to by various titles: first, "deputy magistrates," then simply "magistrates," and today, "magistrate judges."⁵ Throughout the state's history, "one of the primary roles of magistrate judges has been to provide or enhance judicial services in rural locations."⁶ Indeed, "[a]s our legislature declared in 1959, magistrate judges were intended to be ‘[judicial officers] of limited trial power sufficient to meet the immediate requirements of justice in the less populated areas of the state.’ "⁷

Alaska Statute 22.15.120 defines the authority of magistrate judges by listing the types of proceedings that they are empowered to conduct.⁸ As we explained in Akers , this list of authorized proceedings is exclusive.⁹ Among the list of proceedings is subsection (a)(5), which authorizes magistrate judges "to give judgment of conviction upon a plea of guilty or no contest by the defendant in a criminal proceeding within the jurisdiction of the district court" — in short, to enter judgment in all misdemeanor cases in which a defendant pleads guilty or no contest. And subsection (a)(7) authorizes magistrate judges "to hear, try, and enter judgments" in a limited number of cases — i.e. , "cases involving minor offenses and violations of ordinances of political subdivisions[.]"

Tommy's case concerns subsection (a)(6). This subsection is unique among the grants of authority contained in AS 22.15.120 because it conditions the magistrate judge's authority on the consent of the defendant: it authorizes magistrate judges to "hear, try, and enter judgments" in all other misdemeanor cases "if the defendant consents in writing that the magistrate may try the case." In other words, under this provision, a defendant charged with a misdemeanor has a statutory right to be tried before a district court judge unless they consent in writing to be tried before a magistrate judge.¹⁰

It is undisputed that Tommy did not expressly consent (in writing or orally) to be tried before a magistrate judge. What makes this case difficult is that Tommy did not raise this issue in the trial court. Under the general rule of preservation, a defendant must raise an objection in the trial court in order to preserve that argument for appeal.¹¹ A defendant who fails to raise an objection is said to have waived, forfeited, or failed to preserve the claim.¹² Thus, when a defendant raises an issue on appeal that was not raised in the trial court, the defendant must usually point to some exception to the general rule of preservation.¹³

Recognizing this requirement, Tommy argues that the failure to obtain her written consent deprived the magistrate judge of subject matter jurisdiction. Subject matter jurisdiction refers to "the legal authority of a court to hear and decide a particular type of case."¹⁴ According to Tommy, magistrate judges do not have the legal authority to try misdemeanor cases unless the defendant consents in writing. And because a defect in subject matter jurisdiction can be raised at any time, Tommy argues that the failure to obtain her written consent requires reversal of her convictions regardless of her failure to object to this defect in the trial court.¹⁵

The State responds that a magistrate judge is an officer of the district court, and that district courts have general jurisdiction over misdemeanors.¹⁶ The State argues that subject matter jurisdiction adheres to the court, not the type of judicial officer, and that the written consent requirement of AS 22.15.120(a)(6) should therefore be treated as a procedural requirement, not a prerequisite to subject matter jurisdiction.

There is support for Tommy's position in federal cases construing an analogous provision. Under 18 U.S.C. § 3401, a United States magistrate judge has "jurisdiction to try persons accused of ... misdemeanors," but may not do so "unless the defendant" — after an explanation of the right to be tried by a district judge — "expressly consents to be tried before the magistrate judge and expressly and specifically waives trial, judgment, and sentencing by a district judge."¹⁷ Given this statutory language, federal cases have characterized the provision as governing the magistrate's "jurisdiction" to preside over, or enter judgment in, a misdemeanor case — and have reversed when the defendant's express consent was lacking.¹⁸

But regardless of whether we characterize the magistrate judge's authority as one of "jurisdiction" — or rather, as deriving from the defendant's express consent — we agree with Tommy that...