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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

DANIEL MATTHEW McMULLEN, 

Appellant, 

v. 

STATE OF ALASKA, 

Appellee. 

Court of Appeals No. A-12955 

Trial Court No. 3PA-17-1209 CR 

O P I N I O N 

No. 2609 — July 27, 2018 

Appeal from the District Court, Third Judicial District, Palmer, 

David Zwink and Vanessa White, Judges. 

Appearances: Windy Hannaman (initial brief) and Renee 

McFarland (supplemental brief), Assistant Public Defenders, 

and Quinlan Steiner, Public Defender, Anchorage, for the 

Appellant. Donald 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, 

Judges. 

Judge WOLLENBERG. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Daniel Matthew McMullen appeals the denial of his judicial peremptory 

challenge.1 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. 

Onappeal,McMullen arguesthat his prior peremptory challengenevertook 

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. 

However, 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. 

We therefore affirm the denial of McMullen’s peremptory challenge of 

Judge Wolfe. 

See Alaska R. App. P. 216(a)(2). 

– 2 – 2609
 

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Underlying facts 

In July 2017, McMullen was charged with one count of second-degree 

misconduct involving a controlled substance, a class B felony,2 and one count of fourthdegree misconduct involving a controlled substance, a class A misdemeanor.3 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 court.4 

Twodayslater,McMullenfiled atimely “NoticeofChangeofJudge”form, 

peremptorily challenging Judge Kristiansen.5 

Before 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. 

District 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 oneperemptory challengeallowedbyCriminal Rule 

25(d) when he challenged Judge Kristiansen. 

2 AS 11.71.030(a)(1)(C) & (d). 

3 AS 11.71.050(a)(4) & (b). 

4 Alaska R. Crim. P. 5(e)(2). 

5 See AS 22.20.022(c); Alaska R. Crim. P. 25(d). 

– 3 – 2609
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

McMullen now appeals the denial of his peremptory challenge of Judge 

Wolfe. 

A preliminary question regarding the validity of the initial assignment to 

Judge Kristiansen 

Following the initial briefing in this case, we asked the parties to file 

supplementalbriefingon thefollowing question: whether thepre-indictment assignment 

of McMullen’s case to a superior court judge constituted a valid assignment for purposes 

of exercising a peremptory challenge in a felony case. Under AS 22.20.022(c) — the 

statute establishing a substantive right to peremptorily disqualify a judge — a 

peremptory challenge must, absent good cause, “be filed within five days after the case 

is at issue upon a question of fact, or within five days after the issue is assigned to a 

judge, whichever event occurs later.” Under the Alaska Supreme Court’s decision in 

Morgan v. State, and this Court’s decision in State v. Watt, McMullen’s pre-indictment 

felony case was not yet “at issue on a question of fact” in the superior court for purposes 

of AS 22.20.022(c).6 

In their supplemental briefing, both parties agreethat McMullen’s case was 

validly assigned to Judge Kristiansen while his case was still in pre-indictment status, 

and that McMullen could properly challenge Judge Kristiansen at that time. The parties 

point to a footnote in Morgan, in which the supreme court stated: 

[W]e do not mean to indicate that a peremptory challenge 

filed in the earlier felony complaint proceeding would not 

have been effective in the subsequent indictment proceeding. 

But we do think that Morgan was entitled to rely on the 

wording of the rule, and exercise his peremptoryrights within 

Morgan v. State, 635 P.2d 472 (Alaska 1981); Watt v. State, 61 P.3d 446 (Alaska App. 

2003). 

– 4 – 2609
 

6 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

the five-day period as applied to the indictment, rather than 

as applied to the earlier felony complaint which was not 

pursued.[7] 

This footnote convinces us that this case does not hinge on the timing of 

Judge Kristiansen’s assignment. As we noted in Smith v. State, a party’s right to 

peremptorily challenge a judge “is not limited to judges who have been formally 

assigned to the case”; a party may exercise a peremptory challenge even prior to an 

official assignment.8 Thus, even absent a formal assignment of this case to Judge 

Kristiansen at McMullen’s first appearance, McMullen could validly exercise a 

peremptory challenge of Judge Kristiansen. 

We therefore agree with the parties that the real question in this appeal is 

whether McMullen’s peremptory challenge of Judge Kristiansen was effective in light 

of subsequent events. 

Why we conclude that McMullen’s challenge of Judge Wolfe was properly 

denied 

On appeal, McMullen argues that his peremptory challenge of Judge 

Kristiansen was rendered moot when, prior to a ruling on his challenge, the State 

dismissed the only pending felony charge against him and his case was reassigned to a 

district court judge. McMullen argues that, as a result, he was entitled to exercise a new 

peremptory challenge against Judge Wolfe. 

7 Morgan, 635 P.2d at 476 n.5. 

8 Smith v. State, 887 P.2d 979, 981 (Alaska App. 1994) (citing Gieffels v. State, 552 

P.2d 661, 669 (Alaska 1976)); cf. Schmid v. Miller, 619 P.2d 1, 2 (Alaska 1980) (concluding 

that the defendant’s peremptory challenge was timely filed since it preceded the judge’s 

official assignment to the case). 

– 5 – 2609
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The underlying premise of McMullen’s argument is that a peremptory 

challenge is not self-executing, but instead must be “ruled on” to determine whether it 

is timely, to ensure that the party has not already exercised a challenge, and to determine 

whether the party has waived the challenge by participating in certain substantive 

proceedings in front of the challenged judge.9 

In contrast, the State argues that McMullen’s challenge of Judge 

Kristiansen took effect immediately upon its filing. The State’s argument is premised 

on the notion that when an apparently timely challenge is made, the challenged judge 

must be immediately removed from the case (with limited exceptions).10 The State 

therefore contends that McMullen had already exhausted his sole peremptory challenge 

by the time his case was reassigned to Judge Wolfe. 

We need not resolve the question of precisely when a peremptory challenge 

becomes effective. Even if we concluded that a peremptory challenge does not become 

effective until there has been a formal ruling as to its validity (which in this case occurred 

after the State dismissed the felony charge), we disagree with McMullen that the transfer 

of his case to the district court rendered his challenge of Judge Kristiansen moot. 

A superior court judge is authorized to preside over trials in both the 

superior court and the district court.11 Thus, McMullen’s challenge of Judge Kristiansen 

was not moot after the transfer of his case to the district court; Judge Kristiansen could 

9 See Alaska R. Crim. P. 25(d) (setting out the procedural requirements for a judicial 

peremptory challenge). 

10 See Alaska R. Crim. P. 25(d)(3) (“When a request for change of judge is timely filed 

under this rule, the judge shall proceed no further in the action, except to make such 

temporary orders as may be absolutely necessary to prevent immediate and irreparable injury 

before the action can be transferred to another judge.”). 

11 See AS 22.10.020(a); AS 22.15.060(b). 

– 6 – 2609
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

still have been his trial judge, or she could have covered for Judge Wolfe in a pretrial 

hearing or other proceeding.12 

Additionally, Judge Kristiansen might still have heard McMullen’s case if 

the State later decided to indict McMullen on the dismissed felony charge and the case 

was transferred to the superior court. As the Alaska Supreme Court has recognized, 

“where two proceedings involve the same defendant and the necessity of proving the 

same facts and issues, a judge who was peremptorily challenged in the prior proceeding 

is automatically disqualifiedat any proceedingagainst the defendant at which those same 

charges are at issue.”13 As we noted earlier, the supreme court in Morgan relied on this 

language to conclude that a peremptory challenge filed against a superior court judge at 

the felony complaint stage would be effective in a subsequent post-indictment 

proceeding in the same case.14 This fact gives McMullen’s challenge of Judge 

Kristiansen ongoing effect.15 

McMullen argues that because no one acted on his peremptory challenge 

of Judge Kristiansen while his case was still in the superior court, he was deprived of his 

12 See, e.g., Juarez v. State, 193 P.3d 773, 774-75 (Alaska App. 2008) (superior court 

judge assigned misdemeanor case to himself for trial). 

13 See Morgan v. State, 635 P.2d 472, 476 n.5 (Alaska 1981) (citing McKinnon v. State, 

526 P.2d 18, 25 (Alaska 1974)); see also State v. Galbraith, 199 P.3d 1216, 1219 (Alaska 

App. 2009) (holding that where the original indictment was dismissed due to the defendant’s 

incompetence to stand trial, and a subsequent indictment was issued, the judge who was 

removed from the original proceedings due to a peremptory challenge remained disqualified 

in the later proceedings on the second, identical indictment). 

14 Morgan, 635 P.2d at 477-78. 

15 See Fairbanks Fire Fighters Ass’n, Local 1324 v. Fairbanks, 48 P.3d 1165, 1167 

(Alaska 2002) (noting that an issue is moot only if “it is no longer a present, live controversy, 

and the party bringing the action would not be entitled to relief, even if it prevails”). 

– 7 – 2609
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

right to a peremptory challenge under Criminal Rule 25(d). But we see no reason to treat 

a defendant whose case is quickly reassigned to another superior court judge differently 

from a defendant whose case reassignment is slightly delayed.16 Neither the fact that a 

criminal case is transferred from the superior court to the district court nor the timing of 

that transfer entitles a party to an additional challenge. 

We acknowledge that, absent a future indictment in this case, the likelihood 

of Judge Kristiansen sitting on McMullen’s case in lieu of Judge Wolfe is low, since 

there are two other district court judges in Palmer. But this would not necessarily be true 

in a smaller court location, where there is only one district court judge. In these 

locations, a successful peremptory challenge of the district court judge assigned to the 

case after dismissal of the felony charges could result in reassignment of the case to the 

very superior court judge that the defendant originally sought to remove from the case.17 

We note that under current law (the Watt and Morgan decisions that we 

discussed earlier), McMullen could have waited to exercise his peremptory challenge 

untilafter hewasindicted. Had McMullen refrainedfromchallenging JudgeKristiansen, 

he would have been entitled to either challenge Judge Wolfe when his case became a 

misdemeanor case and was assigned to the district court, or to challenge Judge 

Kristiansen if he was subsequently indicted on the felony charge and his case was 

16 Cf. Hickox v. Superior Court, 505 P.2d 1086, 1089 (Ariz. App. 1973) (despite 

expiration of judge’s pro tem service two weeks after party filed peremptory challenge 

against that judge, party not entitled to have right to peremptory challenge reinstated, even 

though subsequent events essentially rendered that challenge unnecessary). 

17 See, for example, Michael v. State, 2016 WL 4937867 (Alaska App. Sept. 14, 2016) 

(unpublished), in which pretrial hearings in a Bethel misdemeanor case were held before a 

superior court judge before being assigned to a district court judge for trial. 

– 8 – 2609
 
 

 

 

 

 

 

 

 

 

 

transferred to the superior court for arraignment on that indictment.18 At that point, 

McMullen’s case would have been “at issue upon a question of fact” in the superior 

court. And, assuming McMullen had not previously exercised a peremptory challenge, 

or waived his right to challenge Judge Kristiansen by participating before her in any of 

the substantive proceedings set out in Criminal Rule 25(d)(5), the five-day time limit for 

challenging Judge Kristiansen would have started anew. 

But because McMullen did challenge Judge Kristiansen, he exhausted the 

one peremptory challenge to which he is entitled. He was not thereafter entitled to 

exercise another peremptory challenge against a different judge. 

Conclusion 

We AFFIRM the denial of McMullen’s peremptory challenge of Judge 

Wolfe. 

18 Watt, 61 P.3d at 447-48; see also Morgan, 635 P.2d at 476-77. 

– 9 – 2609