#### Matthew James TREPTOW, Appellant, v. STATE of Alaska, Appellee.

Court of Appeals No. A-12092

Court of Appeals of Alaska.

December 1, 2017

J. Adam Bartlett, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. ■ - - -

Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.*

*

*.*Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).

*1221OPINION

Judge MANNHEIMER.

Matthew James Treptow appeals his conviction for felony driving under the influence.1 Treptow’s offense'was classified as a felony because he had two prior convictions for DUI within the preceding ten years, one from Alaska and'One from Arizona.

In this appeal, Treptow argues that his Arizona DUI conviction should not be counted because of a purported difference between Arizona law and Alaska law.

Under Arizona law, a person charged with a crime (felony or misdemeanor) is entitled to waive their right to a jury trial, but only with the consent of the government and the approval of the court.2 Treptow acknowledges that Alaska law is the same with respect to defendants charged with felonies, but Treptow asserts that misdemeanor defendants in Alaska have an absolute right to demand a bench trial, even when the government and the court do not consent.

Based on this purported difference between Alaska law and Arizona law, Treptow argues,that Arizona DUI convictions do not qualify as “prior.convictions” for purposes of Alaska’s felony DUI law.

For-the reasons explained in-this opinion, we conclude that Treptow’s argument is based on a misreading of Alaska Criminal Rule 23(a). We hold that, under Criminal Rule 23(a), a defendant’s waiver of jury trial must be approved'by both the government and the court, regardless of whether the defendant is, being tried for a felony or a misdemeanor.

*The rule at issue:*Alaska■ *Criminal Rule 23(a) '*

Alaska Criminal Rule 23(a) states:

> (a) *Trial by Jury,*Casés required to be tried by jury shall be so tried unless the defendant waives a jury .trial. .In felony cases, the waiver must be in writing with the approval of the court and the consent of the state. In misdemeanor cases, the waiver may be in writing or made on the record in open court.

As can be seen, the second sentence of Rule 23(a) says that á felony defendant’s waiver of jury trial is conditioned on three things: (1) the waiver must be in writing; (2) the court must approve; and (3) the state must consent.

The third sentence of Rule 23(a) then says that', in misdemeanor cases, the waiver may either be in writing or made on the record in open court.

Because the third sentence of Rule 23(a) does not expressly reiterate the requirements of “approval of the court” and “consent of the state”, Treptow interprets the rule as saying that these elements are not required in misdemeanor cases. According to Treptow, Criminal Rule 23(a) gives misdemeanor defendants an absolute right to waive *■&*jury and demand a bench trial, regardless of whether the court and the state consent.

But the third sentence of Rule 23(a) could reasonably be interpreted in a different light: it could be read as simply relaxing the “writing” requirement that governs waivers of jury'trial in felony cases — so that, in misdemeanor cases, jury waivers can be either written or oral.

To resolve this ambiguity, we have examined the legislative history of Alaska Criminal Rule 23(a). For the reasons we are about to explain, we conclude that when a ■defendant wishes to waive the right to a jury trial, Criminal Rule 23(a) requires the approval of the court and the consent of the government in all cases — both felonies and misdemeanors.

*1222*The pre-statehood, history of Alaska Criminal Rule 23(a)*

The history of Alaska Criminal Rule 23(a) begins in 1930, when the United States Supreme Court decided *Patton v. United States,*281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930).

The issue addressed in *Patton*was whether, consistent with the Sixth Amendment’s guarantee of jury trial, a criminal defendant could ever-waive their right to have a jury decide their case. The underlying question (as framed by the Supreme Court) was whether the guarantee of jury trial should be viewed as a fundamental aspect of the form of government guaranteed by the federal constitution, or whether the guarantee of juiy trial should be viewed as a personal right of a criminal defendant — a right that could be waived.3

At common law, a defendant was not allowed to waive a jury trial.4 And in 1930, at the time of the *Patton*decision, there was still significant judicial authority holding that the right of jury trial could not be waived— on the ground that the jury was an essential aspect of a properly constituted criminal tribunal.5 But in *Patton,*the Supreme Court rejected this view of the law and held that the right to jury trial was a right conferred on defendants, and that it could be waived.6

However, the Supreme Court declared that a defendant’s right to waive a jury trial was not absolute. The Court cautioned that having a jury sit as the fact-finder in a criminal case is not simply a right of the defendant; it is also an important element of the criminal justice system itself. Thus, both the trial judge and the government should have to approve any waiver of jury trial offered by a defendant:

> Trial by jury is the normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses. ... [T]he value and appropriateness of jury trial have been established by long experience, and are not now to be denied. Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact-finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant. And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.

*Patton,*281 U.S. at 312-13, 50 S.Ct. at 263.

In 1944, based on the Supreme Court’s decision in *Patton,*Congress, enacted Federal Criminal Rule 23(a) — a rule based *on*the *Patton*decision.

Originally, Federal Criminal Rule 23(a) stated, “Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.” 7 Because Alaska was a federal territory at the time, Federal Criminal Rule 23(a) was the law that governed criminal trials in Alaska.

In its current version, Federal Criminal Rule 23(a) states:

> (a) *Jury Trial. If*the defendant is entitled to a jury trial, the trial must be . by jury unless:

> (1) the defendant waives a jury trial in writing;

> (2) the government consents; and

> (3) the court approves.

*1223*The post-statehood history of Alaska Criminal Rule 23(a)*

Alaska became a state in 1959, fifteen years after the promulgation of Federal Criminal Rule 23(a). In that year, our newly formed supreme court issued the initial version of Alaska’s court rules. *See*Supreme Court Order No. 4 (effective October 4, 1959).

In its 1959 version, Alaska Criminal Rule 23(a) tracked the then-current wording of its federal counterpart:

> (a) *Trial by Jury.*Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in wilting with the approval of the court and the consent of the state.

The 1959 version of the Alaska Criminal Rules also contained a section (“Part X”) that was titled “Procedures for the trial of cases before *magistrates”*— ie., procedures for the trial of misdemeanor cases in the district court.

The first rule in Part X of the Criminal Rules was Criminal Rule 59, “Applicability of Rules; Special Provisions”. Criminal Rule 59 declared that the rules of criminal procedure codified in the regular Criminal Rules “shall apply to criminal actions in the district magistrate courts ... except as follows”. Criminal Rule 59 then contained a series of subsections, each specifying how the procedures in district court criminal cases would differ from the -normal procedures set forth in the regular Criminal Rules.

Subsection (d) of Criminal Rule 59 established a single departure from the regular Criminal Rules with respect to waivers of jury trial. That difference was that a defendant’s waiver of jury trial could be made orally in district court cases:

> (d) *Trial by Jury; Waiver.*The manner of drawing juries shall be as provided by Section 68-6-8, [Alaska Compiled Laws Annotated] 1949. Waiver by the defendant of jury trial or agreement by the parties for trial by a jury of less than twelve need not be in writing, but shall be made in open court, and the magistrate shall make a proper notation thereof in the record of the proceedings.

To summarize the law set forth in Alaska’s original 1959 court rules:

Criminal Rule 23(a) declared that a defendant’s waiver of jury trial had to be in writing, and that the waiver required the government’s consent and the court’s approval.

Under the provisions of Criminal Rule 59, the jury waiver procedures set forth in Criminal Rule 23(a) governed the trial of misdemeanor cases in the district court except as specified in Rule 59(d) — and Rule 59(d) only relaxed the requirement that the defendant’s waiver had to be in writing.

Thus, under this original version of Alaska’s Criminal Rules, the requirements of court approval and government consent governed *all*waivers of jury *trial*— ie., waivers in both felony and misdemeanor cases.

The Alaska Supreme Court later moved the provisions of Part X of the Criminal Rules into a separate set of rules — first, as the “Magistrate Criminal Rules”, and later as the “District Court Criminal Rules”. When that happened, the provisions that were originally contained in Criminal Rule 59 were moved to a new Rule 1 of the District Court Criminal Rules.

But the wording of the special misdemean- or rule remained essentially the same: District Court Criminal Rule 1 still codified the principle that the normal rules of criminal procedure would apply to misdemeanor cases in the district court unless some variation was specified in the district court rules. Until mid-2013, District Court Criminal Rule 1 declared:

> Wherever practicable[,] the Rules of Criminal Procedure shall apply to criminal actions within the jurisdiction of the district courts.

Thus, the jury waiver procedures specified in Criminal Rule 23(a) — including the requirements of court approval and government consent — governed criminal cases in the district court unless the District Court Criminal Rules specified some different procedure.

And, like the old Criminal Rule 59(d), District Court Criminal Rule 1(d) modified only the requirement that the defendant’s waiver needed to be in writing:'

> (d) *Trial by .Jury*— Waiver. The manner of drawing juries shall be as provided by AS 09.20.040 — 09.20.090. Waiver by the defendant of jury trial need not be in *1224writing, but shall be made in open court, and the district judge or magistrate shall make a proper notation thereof in the record of the proceedings.

So again, under-the Criminal Rules and the District Court Criminal Rules as they existed until mid-2013, Criminal Rule 28(a)’s requirements of court approval and government consent applied to waivers of jury trial in both felony and misdemeanor cases.

*The repeal of the District Court Criminal Rules, and the amalgamation of those rules into the regular Criminal Rules*

In late 2012, the Alaska Court Administration began drafting a proposal to abolish the District Court Criminal Rules. The court administration’s plan had two parts.

The .first part of the plan was to take all the special provisions of the District Court Rules that applied to the trials of non-criminal offenses (“violations” that carried no possibility of imprisonment) and move those provisions into a new group of “Minor Offense Rules”.

The second part of the plan was to take all the provisions of the District Court Criminal Rules, that applied to misdemeanor offenses and incorporate those provisions into the regular Criminal Rules.

To cany out this second part of the plan, members of the court administrative. staff drafted a series of proposed rule changes, These proposals were circulated by memorandum in late December 2012.

In line with the goal of incorporating the various misdemeanor provisions of District Court.Griminal Rule 1 into the regular Criminal Rules, the court administration proposed that the. supreme court amend Criminal Rule 23(a) to its current form, so that the rule would eov.er both felony and misdemeanor cases, The administrative staffs proposed language is, underlined:

> (a) *Trial by Jury.*Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial. In felony cases, the waiver must be in writing with the approval of the court and the consent of the state. In misdemeanor cases, the waiver may be in writing or made on the record in open court.

*See*the memo, “Moving DCCrR 1 to Criminal Rules, Draft of 12-28-2012”, at page 10 of 11.8

Contrary to Treptow’s argument on appeal, this new language was not drafted to give misdemeanor defendants, a new, absolute right to waive a jury without the approval.of the court and the consent of the government. Just the opposite: the administrative staff was not trying to change the law at all. As part of their memo describing the proposed change to Criminal Rule 23(a), the administrative drafters included an “Explanation of Changes”. That explanation reads:

> The changes in this rule clarify that felony waivers must still be in writing and that misdemeanor waivers may be in writing or made orally on the record as [currently] provided in [District Court Criminal Rule] 1(d).

*Ibid.*

The court administrative staff presented their proposed rule changes' to the Alaska Supreme Court at the court’s “rules conference” on March 15, 2013.9 Normally, proposed changes to the Criminal Rules are examined and vetted by the supreme court’s Criminal Rules Committee before the supreme court considers the changes. But in this instance, the court administrative staff presented them proposals directly to the supreme court, without vetting by the Criminal Rules Committee, because the staff believed that their proposals “[did] not change the substance of the existing rule provisions”.10

At its March 2013 rules conference, the supreme court decided to move forward with the staff proposal to abolish the District Court Criminal Rules. The court approved a *1225draft order to this effect (draft Supreme Court Order No. 1799). But “to make sure that [the court] was not missing anything”,11 the supreme court decided to have the Criminal Rules Committee review the proposed changes.12

The supreme court’s draft order amending the Criminal Rules was presented to the Criminal Rules Committee at its May 2013 meeting. The list of proposed changes to the Criminal Rules was a last-minute addition to the Committee’s agenda, and the Committee was informed that the supreme court wanted to move quickly. According to the Committee minutes, the Committee “made time for the discussion [of the proposed changes] in consideration of the [supreme] court’s interest in taking final action on this proposal before the publication deadline for the [next edition of the] rule book.”13

During its discussion of the various proposed changes, the Committee considered the draft amendment to Criminal Rule 23(a) — the amendment that we described above:

> (a) *Trial by Jury.*Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial. In felony cases, the waiver must be in writing with the approval of the court and the consent of the state. In misdemeanor cases, the waiver may be in writing or made on the record in open court.

It was here, during the Committee’s discussion of Rule 23(a), that the ambiguity in the administrative staffs wording was first perceived. Did the' third sentence of the new version mean that waivers in misdemeanor cases could be either written or oral — the rule previously codified in District Court Criminal Rule 1(d)? Or was the third sentence also intended to eliminate the requirements of government consent and court approval in misdemeanor cases?

To further complicate matters, there was disagreement' among the Committee members as to whether- the then-current version of the rule — District Court Criminal Rule 1(d) — required court approval and government consent for any waiver of jury trial,14 According to the minutes, “opinions differed” on this issue.

:Some members of the Committee expressed the view that, because the introductory language of District Court Criminal Rule 1 incorporated every provision of the Criminal Rules unless the District Court Criminal Rules specified otherwise, the requirements of Criminal Rule 23(a) regarding court approval and government consent applied to waivers of jury trial in the district court.15 But other members of the Committee suggested that “practice or custom” on this issue “[might] vary in different [court] locations”.16 '

The Committee tried to draft revised language for Criminal Rule 23(a) to clarify that the requirements of court approval and government consent applied to all waivers of jury trial. But in the end, the Committee decided not to tinker with the language that had been drafted by the court administration — even though “several members found [this language] ambiguous”.17

According to the minutes, the' Committee decided to take no action on this language because the Committee “was not of one mind” and because the Committee “was hesitant to expressly call for what would be a change in practice in at least some areas of the state.”18 Instead, the Committee opted for the ambiguous language drafted by the court administration because the Committee “preferred to leave [this matter]- ambiguous.” 19 ' '

Several weeks'later, on June 24, 2013, the supreme court promulgated Supreme Court *1226Order No. 1799 (effective October 15, 2013). In this order, the court enacted the version of Criminal Rule 23(a) that had been proposed in December 2012 by the court administration.

The legislative record does not indicate what consideration, if any, the supreme court gave to the Criminal Rules Committee’s discussion of this issue. With regal’d to the ultimate wording of Criminal Rule 23(a), the record contains only the explanation provided by the court administrative staff who drafted that wording.

As we have explained, the court administrative staff who drafted the current version of Criminal Rule 23(a) did not think that they were changing Alaska law. Rather, they were merely trying to incorporate the existing provisions of District Court Criminal Rule 1 into the regular Criminal Rules. According to the staffs accompanying “Explanation of Changes”, the new version of Criminal Rule 23(a) was intended to incorporate the same rule that had been codified in District Court Criminal Rule 1(d) — the rule that, in misdemeanor cases, an oral waiver of jury trial was acceptable.

*Our analysis of Criminal Rule 23(a)*

As we explained early in this opinion, Alaska’s Criminal Rule 23(a) was based on the corresponding federal rule that governed criminal trials in Alaska during territorial days. Alaska’s Rule 23(a) incorporates the federal rule’s three requirements of (1) a written waiver by the defendant, (2) consent by the government, and (3) court approval.

Until the summer of 2013 (when the Alaska District Court Criminal Rules were repealed), District Court Criminal Rule 1 clearly stated that the provisions of the regular Criminal Rules applied to the trials of misdemeanor cases in the district court unless some provision of the District Court Criminal Rules specified otherwise.

With respect to waivers of jury trial, District Court Criminal Rule 1(d) relaxed the requirements of Criminal Rule 23(a) in one respect only: District Court Criminal Rule 1(d) declared that a defendant’s waiver of jury trial did not need to be in writing — that it could be made orally on the record instead.

In all other respects, Criminal Rule 23(a) governed waivers of jury trial in district court proceedings. Thus, the requirements of government consent and court approval applied to jury trial waivers in district court criminal proceedings.

Although the current wording of Alaska Criminal Rule 23(a) might be clearer, the intent of its drafters is very clear. Those drafters were simply trying to meld the provisions of District Court Criminal Rule 1(d) with the provisions of Criminal Rule 23(a)— without changing the substantive law.

For these reasons, we interpret Criminal Rule 23(a) to mean that, in both felony and misdemeanor cases, a defendant can waive jury trial only with the consent of the government and the approval of the court.

And because there is no difference between Alaska law and Arizona law on this issue, we reject Treptow’s argument that Arizona DUI convictions should not be counted as “prior convictions” when an Alaska court or jury assesses whether an instance of driving under the influence is a felony or a misdemeanor under AS 28.35.030(n).

(In reaching this conclusion, we do not mean to say that DUI convictions from states whose law *does*differ from Alaska law on this jury waiver issue are thereby disqualified as “prior convictions” for purposes of Alaska’s felony DUI law. We do not reach this question, because Treptow’s case does not require us to resolve it.)

The judgement of the superior court is AFFIRMED.

*1227APPENDIX

*1228

*1229

*1230

*1231

*1232

*1233

*1234

1

. AS 28.35.030(n).

2

. At the time Treptow’s case was litigated in the superior court, Arizona Criminal Rule 18.1(b) stated: "The defendant may waive the right to trial by jury with consent of the-prosecution and the court. In a capital case, the defendant may also waive the right to have a jury determine aggravation or the penalty if the prosecution and the court concur.”

Earlier this year, the Arizona Supreme Court amended the wording — but not the substance — of Criminal Rule 18.1(b). The rule now states, "The defendant may waive the right to trial by jury if the State and the court consent. If the State and the court agree, a defendant also may waive the right to have a-jury determine aggravation or the penalty in a capital case.”

3

. *Patton,*281 U.S. at 293, 50 S.Ct. at 256.

4

. *Id.,*281 U.S. at 306, 50 S.Ct. at 261.

5

. *See Low v. United States,*169 F. 86, 92 (6th Cir. 1909), and *Dickinson v. United States,*159 F. 801 (1st Cir. 1908) — both discussed in *Patton,*281 U.S. at 294, 50 S.Ct. at 256.

6

. *Patton,*281 U.S. at 298, 50 S.Ct. at 258.

7

. Quoted in *Hatchett v. Government of Guam,*212 F.2d 767, 777 (9th Cir. 1954).

8

. This memo, as well as the Criminal Rules Committee minutes that we refer to in this opinion, are contained in the Court Rules Attorney’s file on Criminal Rule 23. We have included the pertinent portions of these documents as attachments to this opinion. The full documents are available for inspection in th,e Anchorage administrative offices of the Alaska Court System.

9

. *See*the minutes of the Criminal Rules Committee from May 6, 2013, page 1.

10

. *.Ibid.*

11

. *Ibid,*

12

. *Ibid.*

13

. *Ibid.*

14

. *See*the minutes of the Criminal Rules Committee from May 6, 2013, page 2.

15

. *See*the minutes of the Criminal Rules Committee from May 6, 2013, pages 2-3.

16

. *See*the minutes of the Criminal Rules Committee from May 6, 2013, page 3.

17

. *Ibid.*

18

. *Ibid.*

19

. *Ibid.*