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State v. Pete (5/29/2015) ap-2454

State v. Pete (5/29/2015) ap-2454

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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



 STATE OF ALASKA,  

                                                                  Court of Appeals No. A-11748  

                                    Appellant,                  Trial Court No. 4BE-12-1225 CR  



                           v.  

                                                                           O  P  I  N  I  O  N 

 WILLIAM QUICIQ PETE,  



                                    Appellee.                        No. 2454 - May 29, 2015  



                  Appeal  from  the  Superior  Court,  Fourth  Judicial  District,  

                  Bethel, Charles W. Ray Jr., Judge.  



                  Appearances:           Elizabeth   T.   Burke,   Assistant   Attorney  

                                                                       

                   General,   Office   of   Special   Prosecutions   and   Appeals,  

                  Anchorage,  and  Michael  C.  Geraghty,  Attorney  General,  

                                                          

                  Juneau,  for  the  Appellant.          Sharon  Barr,  Assistant  Public  

                                                          

                  Defender, and Quinlan Steiner, Public Defender, Anchorage,  

                                                            

                   for the Appellee.  



                  Before:  Mannheimer, Chief Judge, and Allard and Kossler,  

                  Judges.  



                  Judge MANNHEIMER.  



                 The  defendant,  William  Quiciq  Pete,  is  alleged  to  have  assaulted  his  



girlfriend.  The State originally charged Pete with misdemeanor assault, but the State filed  

                                                                                                  



amended charges of felony assault just a few days before Pete was scheduled to be tried  


----------------------- Page 2-----------------------

on the misdemeanor charge.  The superior court later dismissed these felony charges on  

                                                                  



the ground that the State's charging decision was vindictive.  The State  appeals that  



ruling.  



                    The record shows that the superior court committed two errors.  One was an  



error of substantive law, and the other was a procedural error.   



                    When the parties litigated the question of prosecutorial vindictiveness in the  

                                                                                                                             



superior court, their litigation focused on a legal issue:  namely, which party bore the  

                                                                             



burden of proof on the question of prosecutorial vindictiveness?  Pete took the position  

                                                      



that the facts of his case raised a presumption of vindictiveness, and thus the State bore  

                                                                                                   



the burden of affirmatively disproving vindictiveness. The State, on the other hand, took  

                                                                                                             



the position that the facts of the case did not raise a presumption of vindictiveness, and  



thus it was Pete's burden to affirmatively prove that the charging decision was the product  

                  



of vindictiveness.   



                    The superior court agreed with Pete that the facts of this case gave rise to a  



presumption   of   vindictiveness,   and   that   the   State   therefore   bore   the   burden   of  



affirmatively proving a lack of vindictiveness. As we explain in this opinion, the superior  

                                                                        



court's ruling on this issue was mistaken.  The facts of this case do not give rise to a  

                                                                                                                



presumption of vindictiveness, and thus it was Pete's burden to affirmatively establish  

                                                                                                   



actual vindictiveness.  



                    After issuing this mistaken ruling as to which party bore the burden of proof,  

                                                                                        



the superior court then committed a procedural error.  In response to the court's ruling  

                                     



that the State bore the burden of proof on the question of prosecutorial vindictiveness, the  

                                                                                     



State asked the superior court to hold an evidentiary hearing so that the State could offer  

                                                                                            



evidence to rebut Pete's assertion of vindictiveness. But the superior court refused to hold  

                                                                                                                           



an  evidentiary  hearing.    The  court  reasoned  that  the  State  had  already  declined  the  



opportunity to present any evidence it might have on this issue.  



                                                               - 2 -                                                         2454
  


----------------------- Page 3-----------------------

                   But as we have explained, the litigation up to that point had focused on the  



question of which side bore the burden of proof.                        At the earlier hearing, both sides took  



the position that they were not required to present any evidence because the other side  



bore the burden of proof.  And at the conclusion of that hearing, the superior court simply  

                                                                                                 



took this burden-of-proof issue under advisement.  The court did not warn the parties that  



they should present their evidence at that hearing, in case the court later ruled against  

                                                                                                            



them on the question of the burden of proof.   



                   Given this procedural posture, no matter which way the superior court ruled  

                                                                     



on the question of the burden of proof, the court was obliged to offer the losing party an  

                                                                                                     



opportunity to offer evidence in support of their position.  



                   In sum, we conclude that the facts of this case do not create a presumption  

                                                                                       



of prosecutorial vindictiveness, that Pete bears the burden of affirmatively proving actual  

                                                     



vindictiveness, and that Pete must now be given the opportunity to litigate this issue.  



           A more detailed look at the underlying facts  



                   William Quiciq Pete allegedly assaulted his girlfriend in the village of Akiak  



on November 27, 2012.  Three days later, on November 30th, a local village public safety  

                      



officer filed a misdemeanor complaint against Pete, charging him with fourth-degree  



assault.    



                   Pete was not arraigned on this complaint until January 4, 2013.  At the  



arraignment, the prosecutor informed Pete (and the district court) that the State intended  

                                                                                      



to take Pete's case to the grand jury and seek an indictment for third-degree assault (a  

                                 



felony), because Pete had two or more prior convictions for assault within the preceding  



ten years.  See AS 11.41.220(a)(5).   



                                                            - 3 -                                                      2454
  


----------------------- Page 4-----------------------

                    However, the State did not immediately take Pete's case to the grand jury,  

                                                                                                   



so  the  district  court  held  a  trial  call  on  the  misdemeanor  charge  on  March  5,  2013.  

                                                                                                            



Neither the prosecutor nor the defense attorney who appeared at this trial call were the  



attorneys assigned to Pete's case.   



                    At this March 5th trial call, Pete's fill-in public defender told the court that  

                                                              



Pete wanted the case set for trial, so the district court set Pete's trial for the following  

         



week.  The fill-in prosecutor did not object.  



                    Two days later, on March 7th, the Bethel district attorney's office filed a  



felony information against Pete.  The grand jury subsequently indicted Pete on one count  

                                                  



of second-degree assault (for  strangling his girlfriend) and one count of third-degree  



assault (for committing fourth-degree assault, but with two or more prior convictions).  



                    In  mid-May,  Pete  moved  to  dismiss  the  indictment  on  the  ground  of  

                                                                   



vindictive prosecution.  He contended that the State brought the felony charges to retaliate  



against him for asserting his right to trial.  Pete further asserted that even if the prosecutor  

                                                                                                    



had  not  subjectively  intended  to  retaliate  against  him,  the  existing  facts  (that  is,  the  

                                  



sequence  of  events  we  have  just  described)  gave  rise  to  a  legal  presumption  of  

                                                                                                           



prosecutorial vindictiveness.   



                    In opposition to Pete's motion, the State contended that the existing facts did  

                                                                                                



not give rise to a presumption of vindictiveness, and that Pete had otherwise failed to  

                            



substantiate his allegation of vindictiveness.   



                    After the parties submitted their pleadings, the superior court held several  



hearings on this matter.  At a hearing on July 18th, the court and the parties discussed  



whether an evidentiary hearing was necessary, but no decision was made.  The parties  

                   



returned to court on July 26th to continue discussing whether an evidentiary hearing was  

                                                                                



necessary.  At that time, both the State and Pete told the court that no evidentiary hearing  

                                                                                            



was needed - but for quite different reasons.  The State argued that no hearing was  



                                                               - 4 -                                                        2454
  


----------------------- Page 5-----------------------

necessary because the facts recited in Pete's pleadings were insufficient to prove actual  



vindictiveness or to raise a presumption of vindictiveness. Pete, on the other hand, argued  

                                                                                                     



that no hearing was necessary because the existing facts already established a prima facie  

                                                                                     



case that the State had acted vindictively.   



                    The superior court issued its written decision about two months later.  The  



court   ruled   that   the   existing   facts   gave   rise   to   a   presumption   of   prosecutorial  



vindictiveness because the State did not file the felony assault charges until after Pete  



declared that he wished to go to trial on the misdemeanor charge.  And based on this  

                                           



presumption of vindictiveness, the court dismissed the felony charges because the State  

                                                      



had "offered no explanation for its actions other than a bald assertion of prosecutorial  

                                                                            



discretion."   



                    A few days later, the State sought reconsideration of this decision on two  

                                                                                                             



grounds.  First, the State argued that the superior court was mistaken as to whether the  



facts  of  Pete's  case  gave  rise  to  a  presumption  of  prosecutorial  vindictiveness.    But  

                                                                            



second,  the  State  pointed  out  that  even  if  the  superior  court  was  right  about  the  



presumption of vindictiveness, this presumption was rebuttable - and, thus, the State  

                                                 



should be given an opportunity to present evidence that its charging decision was not the  

                                                                              



result of vindictiveness.    



                    In support of this second argument, the State submitted a nine-page affidavit  

                                               



from the prosecutor assigned to Pete's case.  This affidavit gave a detailed chronology of  

                                                                                                    



Pete's case:  it explained that the State was considering felony charges early in the case,  

                        



and it offered an explanation as to why the State did not take the felony charges to the  

                                                                                  



grand jury until March.  In other words, the affidavit was basically an offer of proof  



regarding the evidence that the State would  present at an evidentiary hearing on the  

                                                                                   



question of vindictiveness.   



                                                               - 5 -                                                         2454
  


----------------------- Page 6-----------------------

                    The superior court denied the State's motion for reconsideration in a one- 



page order.  The court's order did not address the State's argument that the court was  

                    



mistaken as to whether the facts of Pete's case gave rise to a presumption of prosecutorial  

                                                                                     



vindictiveness.  Instead, the court's order was entirely addressed to the State's second  



argument:  that the State should now be given an opportunity to rebut the presumption of  

                                                         



vindictiveness.   



                    On this question, the superior court noted that, at the July 18th hearing, the  

                                                                                            



State's attorney had told the court that no evidentiary hearing was required. Based on this  

                                                                                                                   



fact, the superior court declared that the State had already been "[g]iven the opportunity  

                            



to present evidence to the court ... on Pete's motion", and that "the State declined [this  

                                                                                                         



opportunity]".  The superior court therefore concluded that it was "inappropriate" for the  

                                                                                                                             



State  to  now  "attempt  to  present  evidence  in  rebuttal  of  the  [court's]  finding  of  

                                                                                               



[prosecutorial vindictiveness]".   



            The facts of this case do not give rise to a presumption of prosecutorial  

                                                                               

            vindictiveness  



                    The government violates a defendant's rights under the due process clause  

                                               



if the government makes or alters a charging decision for the purpose of vindictively  

                              

punishing the defendant for exercising a legally protected right. 1  

                                                                                                     



                                                                   

                    In Alaska, the leading case on the issue of vindictive prosecution is Atchak  



                                                                            

v. State, 640 P.2d 135 (Alaska App. 1981).  Under Atchak , a defendant can litigate a claim  



                                                     

of prosecutorial vindictiveness in two different ways.  First, the defendant can establish  



actual  vindictiveness  by  presenting  direct  evidence  that  the  charging  decision  was  



       1   Blackledge v. Perry , 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974).  



                                                                - 6 -                                                         2454
  


----------------------- Page 7-----------------------

purposely made to punish the defendant for exercising legal rights.  If the defendant  

proves actual vindictiveness, then the vindictive charging decision must be reversed. 2  

                                                                                                                              



                   Alternatively,  the  defendant  can  establish  "apparent"  vindictiveness  by  



proving facts that give rise to a "realistic likelihood of vindictiveness".  This likelihood  

                     



of vindictiveness gives rise to a presumption that the government's charging decision was  

                                                                       



vindictive, and the defendant is entitled to relief unless the government affirmatively  



rebuts this presumption with evidence establishing a non-vindictive explanation for the  

charging decision. 3  

                              



                                                                                                                

                   But this Court held in Dyer v. State , 666 P.2d 438 (Alaska App. 1983), that  



no presumption of vindictiveness attaches to the government's pre-indictment  decision  



to charge a defendant with more serious crimes.   



                   In  Dyer ,  the  State  initially  charged  the  defendant  with  assault  with  a  



dangerous weapon (under the pre-1980 criminal code), and then requested that Dyer  

                                         

waive grand jury indictment. 4  

                                              After Dyer refused to waive his right to indictment, the  



State presented Dyer's case to the grand jury and secured an indictment for the more  

serious felony of shooting with intent to kill, wound, or maim. 5  

                                                                                               



                                                                                                            

                   Dyer asked the superior court to dismiss this greater charge, claiming that  



                                                                                                       

the State had increased the charge for the purpose of retaliating against him for asserting  



      2    Atchak , 640 P.2d at 143; see also  United States v. Goodwin, 457 U.S. 368, 380 n. 12;                 



  102 S.Ct. 2485, 2492 n. 12; 73 L.Ed.2d 74 (1982).  



      3    Atchak , 640 P.2d at 144-45; see also  United States v. Goodwin, 457 U.S. 368, 375-76;  



  102 S.Ct. 2485, 2490; 73 L.Ed.2d 74 (1982).  



      4    Dyer , 666 P.2d at 441-42.  



      5    Id.  at 442.  



                                                            - 7 -                                                      2454
  


----------------------- Page 8-----------------------

                                                     6  

his right to grand jury indictment.     The superior court refused to dismiss the greater  



charge, and, on appeal, this Court affirmed the superior court's decision.  



                    Relying on the United States Supreme Court's discussion of this same issue  

                                                                                          



                                           7  

in United States v. Goodwin,                                                             

                                             this Court explained in Dyer that the doctrine of presumed  



vindictiveness  



                       

                                                                                          

                      [should] not apply ... [when] evaluating a ... pretrial charge  

                     increase  after  a  defendant's  demand  for  a  jury  trial.    The  

                     prosecutor  should  remain  free  before  trial  to  exercise  the  

                     broad  discretion  entrusted  to  him  ...  .    [The  prosecutor's]  

                     initial [charging] decision should not freeze future conduct.  

                     Moreover, there are certain advantages in avoiding a rule that  

                     would   compel   prosecutors   to   attempt   to   place   every  

                                                               

                     conceivable charge against an individual on the public record  

                     from the outset.  

                       

                                                      

Dyer , 666 P.2d at 442-43.   Based on these principles, this Court held in Dyer that an  



                                                                      

increase  in  the  charges  against  a  defendant  does  not  give  rise  to  a  presumption  of  



                                                                                                                          

vindictiveness "when the change in the charges is made prior to, or at the time of, the  



initial indictment."  Id. at 443.   



                                                                                          

                    A few years later, in Norbert v. State , 718 P.2d 160 (Alaska App. 1986), this  



                                                                                                          

Court again rejected a claim of vindictive prosecution in a case where the State indicted  



the defendant on felony charges after the defendant had asserted "his right to a jury trial  



on misdemeanor offenses."  Id. at 162.  We repeated what we said in Dyer - that there  

                                                                                                                      



was "no reason to apply a presumption [that] vindictive prosecution has taken place when  

                                                                                                     



charges are increased prior to, or at the time of, the original indictment."  Ibid , quoting  



Dyer , 666 P.2d at 443.  



      6    Ibid.  



      7    457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982).  



                                                               - 8 -                                                        2454
  


----------------------- Page 9-----------------------

                     In Pete's case, the superior court acted contrary to our holdings in Dyer and  

                                                                         



Norbert when the court ruled that the facts of Pete's case gave rise to a presumption of  

                                                                                                              



prosecutorial vindictiveness.   



                     As we have explained, Pete was initially charged with misdemeanor assault  

                                                                        



in a complaint filed by the local village public safety officer.  But at Pete's arraignment  

                                                               



in the district court, the prosecutor informed Pete that the State intended to take his case  

                                



to the grand jury and seek an indictment for felony assault.  



                     The State did not immediately take Pete's case to grand jury, and so, two  

                                      



months later, the district court held a trial call on the pending misdemeanor assault charge.  

                                       



At this trial call, Pete's attorney declared that he was ready for trial.  But two days after  

                                                                                    



this trial call, the district attorney's office filed a felony information against Pete, and the  

                                                                            



grand jury subsequently indicted Pete on two counts of felony assault.   



                     Given these facts, Pete's case is governed by Dyer and Norbert :   the State  

                                         

                                                                                                                            



increased the charges against Pete before the initial indictment was issued - and, under  

                                               



Alaska law, a pre-indictment increase in charges does not give rise to a presumption of  

                                                                                      



vindictiveness.   



                     In   its   decision,   the   superior   court   reasoned   that   a   presumption   of  

                                                 



vindictiveness was warranted because the State initiated the felony charges after Pete  

                                                                    



announced that he was ready for trial on the misdemeanor charge.  But this is exactly the  

                                                                                           



situation  that  was  presented  in  Norbert ,  where  we  held  that  no  presumption  of  



vindictiveness arose from the filing of felony charges even after the defendant asserted  

                                          



his right to jury trial on pending misdemeanor charges.  718 P.2d at 162.   



                     For this reason, the superior court was wrong when it declared that the facts  



of Pete's case gave rise to a presumption of prosecutorial vindictiveness.  We reverse the  

                                                                                                                 



superior court's ruling on this issue.  



                                                                 - 9 -                                                           2454
  


----------------------- Page 10-----------------------

           The superior court's procedural error, and why we must remand this case  

           to  the  superior  court  for  further  proceedings  on  Pete's  prosecutorial  

           vindictiveness claim  



                   As we have explained, the superior court held several hearings on Pete's  

                                                                                  



prosecutorial vindictiveness claim.  At two of these hearings, the court and the parties  



discussed whether it was necessary for the court to hold an evidentiary hearing to resolve  

                                                                       



Pete's claim.   



                   Both the State and Pete told the superior court that they did not intend to  



present any evidence - but for quite different reasons.  The State's attorney told the court  

             



that the State did not need to present any evidence because the facts recited in Pete's  



pleadings were insufficient to prove actual vindictiveness or to raise a presumption of  



vindictiveness.    Pete's  attorney,  on  the  other  hand,  argued  that  Pete  did  not  need  to  



present any evidence because the existing facts already established a prima facie case that  



the State had acted vindictively.   



                   The superior court issued its written decision some two months later.  As we  

                                                                                              



have already described, the court mistakenly ruled that the existing facts gave rise to a  

                                     



presumption of prosecutorial vindictiveness.  The court then declared that the felony  



charges should be dismissed because the State had "offered no explanation" for pursuing  

                                                                    



the felony charges "other than a bald assertion of prosecutorial discretion."   



                   A few days later, the State asked the superior court to reconsider its decision.  

                                                                        



In its motion for reconsideration, the State pointed out that even if the superior court was  

                                                                                                 



right about the presumption of vindictiveness, this presumption was rebuttable - and,  

                  



thus,  the  State  should  be  given  an  opportunity  to  present  evidence  that  its  charging  

                                                      



decision was not the result of vindictiveness.   



                   The superior court denied the State's motion for reconsideration because,  



at the earlier hearing, the State's attorney had told the court that the State did not intend  

                                                                                                    



                                                            - 10 -                                                      2454
  


----------------------- Page 11-----------------------

to present any evidence.  Based on this fact, the superior court declared that the State had  

                                                                                                                  



already been "[g]iven the opportunity to present evidence to the court", and that "the State  

                                                                                          



[had] declined [this opportunity]", thus making it "inappropriate" for the State to now  



present evidence on the question of prosecutorial vindictiveness.   



                    This  ruling  -  that  the  State  was  procedurally  barred  from  introducing  



evidence on the question of prosecutorial vindictiveness - was error.   



                    The litigation up to that point had focused on the question of which party  



bore the burden of going forward with evidence.  Both sides took the position that they  

                                                                                                                        



were not required to present any evidence because the other side bore the burden of going  

                                           



forward.  After hearing the parties' arguments, the superior court simply took this matter  

                                     



under advisement.  The court did not warn the parties  that  they should present their  

                                                                                              



evidence anyway, in case the court later ruled against them on the question of who bore  

                                                                                   



the burden of proof.  



                    Given this procedural posture, no matter which way the superior court ruled  



on the question of who bore the burden, the court was obliged to offer the losing party a  

                                                                            



chance to present evidence.  



                    As it happens, the superior court mistakenly ruled that the facts gave rise to  

                                                              



a presumption of vindictiveness that ran against the State.  But even if the superior court  

                                                                          



had correctly decided this question - i.e., even if the court had ruled that there was no  

                                                                                            



presumption of vindictiveness, and that Pete bore the burden of affirmatively establishing  



actual prosecutorial vindictiveness - the same obligation of procedural fairness would  

                                                                                          



have required the court to give Pete an opportunity to offer any case-specific evidence he  

                                                       



might have to support his assertion of actual vindictiveness.  



                    For this reason, we can not simply reverse the superior court's decision and  

                                                                                                                  



reinstate the felony charges against Pete.  Now that we have clarified that there is no  

                                                        



presumption of vindictiveness in this case, and that Pete bears the burden of affirmatively  

                                                                                                              



                                                              - 11 -                                                         2454
  


----------------------- Page 12-----------------------

proving actual prosecutorial vindictiveness, Pete must be given an opportunity to litigate  

                                                                        



this issue if he has evidence to support his position.  



           Conclusion  



                   We REVERSE the superior court's ruling that the facts of Pete's case give  

                                                                        



rise to a presumption of prosecutorial vindictiveness.  The facts of Pete's case do not give  

                                                                                                                



rise to a presumption of vindictiveness, and Pete therefore bears the burden of proving  

                                                                  



actual vindictiveness.   



                   To allow Pete an opportunity to meet this burden of proof, we REMAND  

                         



Pete's  case  to  the  superior  court  so  that  Pete  can  litigate  the  question  of  actual  

                                                                 



vindictiveness.  If Pete offers evidence which, if believed, would be sufficient to establish  



actual prosecutorial vindictiveness, then the superior court should hold an evidentiary  



hearing to resolve Pete's claim.  



                   We do not retain jurisdiction over this case.  



                                                           - 12 -                                                      2454
  

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