Twiford v. State, 021920 AKCA, A-13522

Docket Nº:A-13522
Opinion Judge:ALLARD. JUDGE
Party Name:CHRISTOPHER TWIFORD, Appellant, v. STATE OF ALASKA, Appellee.
Attorney:Wallace Tetlow, Tetlow Christie, LLC, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Judge Panel:Before: Allard, Chief Judge, Harbison, Judge, and Coats, Senior Judge.
Case Date:February 19, 2020
Court:Court of Appeals of Alaska
 
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CHRISTOPHER TWIFORD, Appellant,

v.

STATE OF ALASKA, Appellee.

No. A-13522

Court of Appeals of Alaska

February 19, 2020

UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court, Third Judicial District, Kodiak, Stephen B. Wallace, Judge. Trial Court No. 3KO-19-00062 CR

Wallace Tetlow, Tetlow Christie, LLC, Anchorage, for the Appellant.

Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, Harbison, Judge, and Coats, Senior Judge. [*]

MEMORANDUM OPINION

ALLARD. JUDGE

Christopher Twiford appeals from an order denying his peremptory challenge of Kodiak Superior Court Judge Stephen Wallace.1 For the reasons explained in this order, we reverse the superior court's order.

Background facts

Twiford was charged by complaint with multiple counts of felony assault against his domestic partner, J.F. In consultation with J.F., the parties negotiated a plea agreement under Alaska Criminal Rule 11. Judge Wallace presided over the Rule 11 proceedings (which occurred over the course of four hearings). At the first hearing, held on August 21, 2019, Twiford waived his right to an indictment and the parties presented the terms of the plea agreement. The hearing was continued because the court was unable to contact the victim. At the second hearing, the victim was represented by the Office of Victims' Rights, and the hearing was continued for a second and third time based on the court's concern that the agreement did not require the defendant to complete a domestic violence program. At the fourth hearing, held on September 11, 2019, Judge Wallace rejected the Rule 11 plea agreement. The case was then set for a pre-indictment hearing.

On September 26, 2019, the State obtained an indictment against Twiford. On the same day, the court issued a written notice of hearing, scheduling the arraignment for September 30, 2019. According to the pleadings, upon receipt of this notice, Twiford's attorney reviewed Courtview, and noted that Judge Wallace was listed as the "case judge."2 Twiford's attorney filed a notice of peremptory challenge to Judge Wallace that same day.

Judge Wallace denied the challenge as untimely. Specifically, the judge ruled that Twiford had forfeited his right to peremptorily challenge him as the trial judge by participating in the previous Rule 11 hearings. This appeal followed.

Our analysis of Twiford's claim

Under Alaska Criminal Rule 25(d), the prosecution and the defense in a criminal case are each entitled as a matter of right to one change of judge.3 However, this right can be waived either by failing to timely file a notice of peremptory challenge for a change of judge within five days of notice that the judge has been permanently assigned to the case or by participating in certain proceedings before the judge, knowing that the judge has been permanently assigned to the case.4 Alaska Criminal Rule 25(d)(5) provides, in pertinent part: (5) Waiver. A party loses the right under this rule to change a judge when the party, after reasonable opportunity to consult with counsel, agrees to the assignment of the case to a judge or...

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