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Lervick v. State10/31/2001
Because Lervick raises this issue for the first time on appeal, he must show that Magistrate Chenhall's act of presiding over his sentencing amounted to plain error. An error is "plain" only when the error would be obvious to any competent judge or attorney without objection, and the defendant's attorney had no tactical reason to withhold an objection.
In essence, Lervick argues that when a judge's term of office expires, any further acts performed by that judge are void and must be set aside at the demand of any party. The Alaska appellate courts have not decided this issue. Our review of pertinent authorities from other states shows that there is a substantial difference of opinion on this subject. Some courts hold that, in this situation, the former (or otherwise unqualified) judge's actions are a nullity. More courts have adopted the view that such a judge's actions can be attacked, but the issue must be raised in the trial court. And at least one court has taken the position that the actions of a de facto judge cannot be attacked in a collateral proceeding in which the judge is not a party.
Because this issue is fairly debatable, Lervick has failed to show that any competent judge or attorney would conclude that it was obvious error for Magistrate Chenhall to preside at Lervick's sentencing when neither party objected.
Lervick also has failed to show that his attorney had no tactical reason for not objecting to Magistrate Chenhall's participation at sentencing. As explained above, Magistrate Chenhall presided over Lervick's trial. The defense attorney may have believed, based on his observations of Magistrate Chenhall, that she would be a favorable sentencing judge. We also note that the Ketchikan legal community is small. The defense attorney may have believed, based on his prior knowledge of Magistrate Chenhall, or his prior knowledge of the newly appointed Judge Miller, or both, that Magistrate Chenhall would be a more sympathetic sentencing judge.
We do not know whether these thoughts entered the defense attorney's mind. But it is Lervick's burden to show the absence of any potential motive for not objecting to Magistrate Chenhall's participation. The present record does not foreclose the possibility that Lervick's attorney decided to gamble on Magistrate Chenhall's sentencing decision, hoping that, if the sentencing decision proved less favorable than anticipated, he could still challenge the magistrate's authority and argue that her actions were void. For these two reasons, Lervick has failed to prove that Magistrate Chenhall committed plain error by presiding at Lervick's sentencing.
Conclusion
The judgment of the district court is AFFIRMED.
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