Timothy Katchatag, Appellant, v. State of Alaska, Appellee. (2025)

Order

Timothy Katchatag appeals the denial of his judicial peremptory challenge. Under AS 22.20.022, any party to a district or superior court action has the right to one peremptory disqualification of the assigned judge. And under Alaska Criminal Rule 25(d), a party may exercise this right by filing a “Notice of Change of Judge” signed by counsel and stating the name of the judge to be changed.¹

To be timely, the Notice of Change of Judge must be filed “within five days after notice that the case has been assigned to a specific judge.”² In addition, under Criminal Rule 25(d)(5), a party waives the right to peremptorily challenge the judge “when the party ․ 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.”³

The court in this case initially denied Katchatag's peremptory challenge as untimely. On Katchatag's motion for reconsideration, the court ruled that Katchatag had waived his right to peremptorily challenge Superior Court Judge Romano D. DiBenedetto because, knowing that Judge DiBenedetto had been assigned to his case, he participated in several hearings before him. We reverse.

Katchatag was charged in a 2023 Nome case with misdemeanor importation of alcohol into a dry area.⁴ He was arrested and arraigned in Anchorage in November 2023. Over the next nine months, several brief, and largely perfunctory, pretrial hearings occurred at which the case was continued; these hearings occurred first before Magistrate Judge Pamela Smith and then before Judge DiBenedetto.

The Public Defender Agency was initially appointed to represent Katchatag, but the Agency withdrew after identifying a conflict of interest. An attorney from the Office of Public Advocacy subsequently entered an appearance, and the attorney currently assigned to represent Katchatag entered the case in mid-August 2024.

On August 27, 2024, Katchatag, through counsel, filed a peremptory challenge of Judge DiBenedetto.⁵ Katchatag's challenge was denied by Superior Court Judge Paul A. Roetman (Presiding Judge of the Second Judicial District) as untimely.

Katchatag then filed a motion for reconsideration, arguing that he had not received any formal notice that Judge DiBenedetto had been assigned to his case, and, therefore, the five-day timeframe to file a timely peremptory challenge had not run.⁶ Katchatag noted that the court had not issued any case-specific judicial assignment — either through a written order issued in his case or through an oral assignment during court proceedings in his case. He acknowledged that there was a Nome Standing Misdemeanor Pretrial Order that stated the following:

Judicial Assignment. At arraignment, all District Court cases are assigned for trial to Superior Court Judge Romano D. DiBenedetto. All hearings prior to trial shall be held before Magistrate Judge Pamela Smith, unless another judicial officer is assigned.[7]

But he argued that the Nome standing pretrial order, which was posted solely online on the court system's website, did not provide the parties with the “clear and unambiguous” and case-specific notice of judicial assignment contemplated by AS 22.20.022(c) and Criminal Rule 25(d).⁸

Judge Roetman denied Katchatag's motion for reconsideration. The court acknowledged Katchatag's argument that the Nome standing pretrial order failed to provide sufficient notice of Judge DiBenedetto's assignment, rendering his challenge timely. But the court did not make any conclusions on this point.

Instead, the court ruled that, although the decision was a “close call,” Katchatag had waived his right to peremptorily challenge Judge DiBenedetto because he had participated in multiple trial call hearings before Judge DiBenedetto prior to filing the peremptory challenge.⁹ The court found that the waiver was “knowing” because, at the May 30, 2024 trial call hearing, Katchatag's counsel had (according to the court) asked for “[Y]our [H]onor's next trial call date,” and Judge DiBenedetto had responded by looking for his trial call dates.

Katchatag now appeals the denial of his peremptory challenge under Alaska Appellate Rule 216. Katchatag renews his argument that he did not receive clear notice that Judge DiBenedetto had been permanently assigned to his case and further contends that he did not participate in any hearings before Judge DiBenedetto that would preclude him from challenging the assignment of the judge to his case.

As an initial matter, we note that it is not clear whether Judge Roetman implicitly relied on the standing order as providing notice, as he did not address Katchatag's argument on this point. Rather, Judge Roetman appeared to rule that defense counsel's comments at the May 30 hearing demonstrated his knowledge that Judge DiBenedetto had been permanently assigned to Katchatag's case, so Katchatag's participation in the hearings amounted to waiver.¹⁰ But the question of knowing waiver is distinct from the question of notice.¹¹

With respect to waiver, the State agrees with Katchatag that he did not waive his right to peremptorily challenge Judge DiBenedetto by his participation in the pro forma pretrial hearings. In particular, the State agrees with Katchatag that Judge Roetman misquoted the audio recording of the May 30, 2024 hearing and that nothing in the hearings themselves indicates that Katchatag had knowledge that Judge DiBenedetto would hear his case.

We therefore turn to the question of timeliness. The State argues that the Nome Standing Misdemeanor Pretrial Order constituted clear and unambiguous notice of Judge DiBenedetto's assignment to his case at Katchatag's arraignment and thus, Katchatag's peremptory challenge was untimely because he failed to file it within five days of his November 2023 arraignment.¹² Thus, the key question in determining timeliness is whether the Nome standing order provided sufficient notice of Judge DiBenedetto's assignment for purposes of Criminal Rule 25(d).

As we recognized in Juarez v. State, in order to trigger the five-day time period in which a party can exercise a peremptory challenge, there must be “a clear and unambiguous assignment to a specific judge” and an unwritten local practice is insufficient to meet this requirement.¹³ In Juarez, the superior court ruled that, because Kodiak was a single-judge district, the defendant was on notice of the resident judge's assignment from the beginning of the case, and thus, the defendant's peremptory challenge of that judge several months later — following the express assignment of the judge — was untimely.¹⁴ Relying on the Alaska Supreme Court's decision in Morgan v. State, we reversed the denial of the defendant's peremptory challenge, holding that the five-day time period for exercising a peremptory challenge of the judge did not begin to run until the defendant received “express notice” that the case was assigned to the judge.¹⁵

In Morgan, the supreme court similarly rejected the notion that a defendant is on notice from the time of the original arraignment that a judge in a single-judge consolidated court is assigned to hear the case.¹⁶ The supreme court ruled that such an interpretation of the time limit “would necessitate an inquiry into the subjective knowledge of the particular attorney and defendant before the court, to ascertain whether they should reasonably have been aware of the fact that [the resident judge] was routinely assigned to all cases.”¹⁷

Thus, as we noted in Juarez, the critical factor in determining whether a peremptory challenge is timely is “not the party's knowledge that [a] district [is] a single-judge district, but when the court gave express notice that the case was assigned to that judge.”¹⁸ We explained that both our ruling and the Morgan decision were “based upon a sound policy consideration: the parties’ need to have a clear and unambiguous assignment to a specific judge in order to start the time period in which they can exercise a peremptory challenge.”¹⁹

Katchatag's case is distinct from Morgan and Juarez because, although Nome is also a single-judge court, there is a standing pretrial order posted online assigning that judge at the time of arraignment to all misdemeanor cases for purposes of trial.²⁰ But the situation here nonetheless presents similar issues to Juarez and Morgan. The parties agree that the general online standing order was not distributed to Katchatag or his attorney as part of this case, and there is similarly no indication that the parties were orally informed of Judge DiBenedetto's assignment at the original arraignment, or at any time subsequent to the arraignment. Thus, the parties essentially had to be familiar with local practice in order to know of the judge's assignment or know to check the portion of the court system's website containing the court system's standing orders. Moreover, determining whether a party had such notice would “necessitate an inquiry into the subjective knowledge of the particular attorney and defendant before the court.”²¹ This is not the “clear and unambiguous assignment” of a judge contemplated by Juarez and Alaska Criminal Rule 25(d).²²

Accordingly, we REVERSE the superior court's order denying Katchatag's peremptory challenge and direct the appointment of another trial judge to replace Judge DiBenedetto.

Entered at the direction of the Court.

Clerk of the Appellate Courts

Ryan Montgomery-Sythe, Chief Deputy Clerk

FOOTNOTES

1.   Alaska R. Crim. P. 25(d)(1)-(2).

2.   Alaska R. Crim. P. 25(d)(2).

3.   Alaska R. Crim. P. 25(d)(5).

4.   AS 04.11.499(a).

5.   The court apparently did not respond to this initial filing, so Katchatag later refiled the notice of peremptory challenge on September 27, 2024.

6.   See Alaska R. Crim. P. 25(d)(2), (4). Katchatag noted that CourtView indicated that the assigned judge was Magistrate Judge Pamela Smith. In particular, a March 15, 2023 CourtView entry notes: “Administrative Reassignment from Judge Romano DiBenedetto to Judge Pamela Smith.”

7.   In a separate section, the order stated:Peremptory Challenges. A peremptory challenge of a judicial officer must comply with the five-business day time limit established by Criminal Rule 25(d). Challenges of the Superior Court Judge must be filed within 5 days after notice of assignment to a specific judge. When a Consent to Trial by Magistrate Judge is filed, the parties must file any peremptory challenge of the Magistrate Judge within five business days after the Consent is filed.During the peremptory challenge litigation in this case, the Nome Superior Court amended this standing order, which now provides simply that “[a]ll criminal cases are assigned to Judge Romano D. DiBenedetto for motion practice and trial.” There is no separate section addressing peremptory challenges. See Superior Court for the State of Alaska, Second Judicial District at Nome, Standing Assignment Order for Criminal Cases (dated Oct. 29, 2024; signed by Superior Court Judge Romano D. DiBenedetto), at https://courts.alaska.gov/jord/docs/2024/2no-misdo-order.pdf.

8.   See Juarez v. State, 193 P.3d 773, 775 (Alaska App. 2008) (recognizing that notice of a specific judge's assignment to a case must be “clear and unambiguous” for purposes of starting the five-day time limit for exercising a peremptory challenge).Katchatag also maintained that the pretrial order was difficult to find since there was no direct link to the order from the Nome page of the Alaska Court System website. The order must instead be retrieved by going to the Alaska Court System home page, and then clicking on “Administrative Standing Orders” under the “Legal Resources” heading; then locating “Standing Misdemeanor Pretrial Orders” under the “Second Judicial District” heading; and finally clicking “Nome” from the options listed under “Standing Misdemeanor Pretrial Orders.” See Alaska Court System homepage, at https://courts.alaska.gov.

9.   See Alaska R. Crim. P. 25(d)(5).

10.   See Alaska R. Crim. P. 25(d)(5).

11.   See Morgan v. State, 635 P.2d 472, 478 n.9 (Alaska 1981).

12.   See Alaska R. Crim. P. 25(d)(2), (4).

13.   Juarez v. State, 193 P.3d 773, 775 (Alaska App. 2008).

14.   Id. at 774-75.

15.   Id. at 775 (citing Morgan v. State, 635 P.2d 472, 478 n.9 (Alaska 1981)).

16.   Morgan, 635 P.2d at 477.

17.   Id.

18.   Juarez, 193 P.3d at 775 (citing Morgan, 635 P.2d at 478 n.9).

19.   Id.

20.   In the facts section of his memorandum, Katchatag notes that this standing order was signed by Judge DiBenedetto, not Judge Roetman (the Presiding Judge of the Second Judicial District). However, Katchatag does not raise any claim related to this point. We therefore assume for purposes of this appeal that the standing order is valid under Alaska Administrative Rule 46.

21.   Morgan, 635 P.2d at 477.

22.   Juarez v. State, 193 P.3d 773, 775 (Alaska App. 2008). If the standing pretrial order had been directly distributed to the parties instead of only being accessible online, this likely would have qualified as clear and unambiguous notice. See Twiford v. State, 2020 WL 823872, at *3 (Alaska App. Feb. 19, 2020) (unpublished) (noting that notice of judicial assignment can be done “on a case-by-case basis or through general notices to all litigants in a particular jurisdiction”).