CRIMINAL LAW
Court of Appeals of Alaska (2023)
Sammy Sawyer
In Tommy v. State, 531 P.3d 365 (Alaska Ct. App. 2023), the court of appeals held that the requirement that a defendant must provide express consent for magistrate judges to preside over misdemeanor criminal cases is not waived by defense counsel not raising the issue in the trial court. (Id. at 366). Tommy was convicted of two misdemeanor offenses following a jury trial in district court. (Id.). The trial was presided over by a magistrate judge. (Id.). According to section 22.15.120(a)(6) of the Alaska Statutes, a magistrate may hear, try, and enter judgments in a misdemeanor case only if the defendant consents in writing that the magistrate may try the case. (Id.). Tommy was not informed of this right and never gave consent in any capacity. (Id. at 367). However, Tommy’s defense counsel did not raise this issue at trial. (Id.). The State argued that not obtaining Tommy’s consent was a procedural error, and that she was required to show plain error because the issue was not raised at trial. (Id. at 368). The court of appeals disagreed, holding that a defendant’s right to be tried before a district court judge can only be waived by express content. (Id. at 370). The court reasoned that the statute’s language specifically requiring a waiver of this right is representative of the legislature’s intent. (Id.). Therefore, allowing the requirement to be waived by the inaction of counsel would be a clear frustration of the legislature’s intent. (Id.). Reversing the conviction, the court of appeals held that the requirement that a defendant must provide express consent for magistrate judges to preside over misdemeanor criminal cases is not waived by defense counsel not raising the issue in the trial court. (Id. at 371).
