Timothy Katchatag v. State of Alaska

FOR PUBLICATION
In the Court of Appeals of the State of Alaska
Timothy Katchatag,
Appellant,
v.
State of Alaska,
Appellee.
rial Court Case No. 2NO-23-00078CR
Court of Appeals No. A-14544
Order
Date of Order: 2/5/2025
Publish Date: 3/7/2025
T
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
Timothy 	Katchatag 	appeals 	the 	denial 	of 	his 	judicial 	peremptory
hallenge. Under AS 22.20.022, any party to a district or superior court action has the
ight to one peremptory disqualification of the assigned judge. And under Alaska
riminal Rule 25(d), a party may exercise this right by filing a “Notice of Change of
udge” 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
ays after notice that the case has been assigned to a specific judge.” 2 In addition, under
riminal 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,
articipates before the judge in an omnibus hearing, any subsequent pretrial hearing, a
earing under Rule 11, or the commencement of trial.” 3
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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).

Katchatag v. State, A-14544
February 5, 2025 – p. 2
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
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.”

Katchatag v. State, A-14544
February 5, 2025 – p. 3
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
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 v. State, A-14544
February 5, 2025 – p. 4
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
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).

Katchatag v. State, A-14544
February 5, 2025 – p. 5
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
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).

Katchatag v. State, A-14544
February 5, 2025 – p. 6
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
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).

Katchatag v. State, A-14544
February 5, 2025 – p. 7
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
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

Katchatag v. State, A-14544
February 5, 2025 – p. 8
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
cc: 	Court of Appeals Judges
Judge DiBenedetto
Trial Court Clerk – Nome
Distribution:
Schwaiger, Michael T., Office of Public Advocacy
Ringsmuth, Eric
assignment can be done “on a case-by-case basis or through general notices to all litigants
in a particular jurisdiction”).