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Alley v. State9/27/2000
MEMORANDUM OPINION AND JUDGMENT
[No. 4281 -- September 27, 2000]
Appeal from the District Court, Third Judicial District, Anchorage, Joel H. Bolger, Judge.
This is a peremptory challenge appeal brought by Steven H. Alley under Alaska Appellate Rule 216(a)(2). Alley maintains that District Court Judge Joel H. Bolger should have allowed Alley to peremptorily challenge him on April 21, 2000. Because Alley failed to show he was unable to consult an attorney regarding a peremptory challenge within the time limits imposed by Rule 25, we affirm Judge Bolger's denial of the peremptory challenge.
On April 1, 2000, Alley was arrested and charged with driving while intoxicated and fourth-degree assault. Alley was arraigned that day, and the case was assigned to Judge Bolger. Alley declined the appointment of the Public Defender Agency, and said that he would hire his own attorney. Alley was not released on bail until April 4, 2000, after two bail hearings in which Alley represented himself. On April 21, twenty days after Alley's arraignment - and Judge Bolger's assignment - Alley's retained attorney filed an entry of appearance and a peremptory challenge of Judge Bolger.
Under Criminal Rule 25(d), a party has the right to challenge a judge. According to the rule, " he notice of change of judge is timely if filed within five days after notice that the case has been assigned to a specific judge." A defendant's " ailure to file a timely request precludes a change of judge under this rule as a matter of right." In addition,
A party loses the right under this rule to change a judge when the party, after a reasonable opportunity to consult with counsel, agrees to the assignment of the case to the judge or, knowing that the judge has been permanently assigned to the case, participates before the judge in an omnibus hearing, any subsequent pretrial hearing, a hearing under Rule 11, or the commencement of trial.[ ]
The parties do not contest that Judge Bolger was assigned on April 1. Alley, however, contends that under Riley v. State, Judge Bolger was obliged to grant the April 21 challenge as timely. Alley argues that the five-day period for making the challenge did not run because he had not yet retained counsel and because his counsel, once retained, promptly filed the challenge. He also asserts that, even though he did not ask Judge Bolger to apply Criminal Rule 53 to relax the five-day period, Judge Bolger should have relaxed the period sua sponte.
Riley holds that courts should relax Criminal Rule 25 when a defendant can show that he was unable to consult with an attorney to determine whether to exercise a peremptory challenge. But it is the defendant's burden to present evidence to establish this. Alley did not present evidence on this point and he did not ask Judge Bolger to apply Criminal Rule 53 to relax the five-day time period in Criminal Rule 25(d).
Alley made no showing that he was unable to consult with an attorney before the five-day time limit expired. The record thus supports Judge Bolger's findings that the challenge was untimely.
We AFFIRM the district court's decision that Alley's challenge was untimely; we find, however, that Alley should be given an opportunity to demonstrate that he was unable to consult with an attorney within the time period provided in Criminal Rule 25.
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