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State of Alaska v Francis P. Azzarella (3/19/2021) ap-2694

State of Alaska v Francis P. Azzarella (3/19/2021) ap-2694


                   The text of this opinion can be corrected before the opinion is published in the   

                  Pacific  Reporter.    Readers  are  encouraged  to  bring  typographical  or  other  

                 formal errors to the attention of the Clerk of the Appellate Courts:  

                                                        303 K Street, Anchorage, Alaska  99501

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                           IN THE COURT OF APPEALS OF THE STATE OF ALASKA  


                                                                                                               Court of Appeals No. A-13146  

                                                           Appellant,                                      Trial Court No. 4BE-17-00667 CR  


                                                                                                                                 O P I N I O N  


                                                           Appellee.                                             No. 2694 - March 19, 2021  


                                    peal from the Superior Court, Fourth Judicial District, Bethel,  

                             Nathaniel Peters, Judge.  

                             Appearances:  Timothy W. Terrell, Assistant Attorney General,  


                             Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson,  


                             Attorney General, Juneau, for the Appellant.  Kelly R. Taylor,  


                             Assistant Public Defender, and Beth Goldstein, Acting Public  


                             Defender, Anchorage, for the Appellee.  

                             Before:   Allard, Chief Judge, and Wollenberg and Harbison,  



                             Judge HARBISON.  

                             Alaska law allows a defendant and an injured party to civilly compromise                                                               

certain misdemeanor offenses by following the procedure set out in AS 12.45.130. If the                                                                                                  

statutory conditions are met, the court may - but is not required to - approve the civil                                                                                             

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compromise and dismiss the criminal case, thus barring any further prosecution for the                                                   


same crime.             


                      This appeal requires us to consider whether a civil compromise becomes  


binding upon the filing of a notice that the defendant and the injured party have reached  


a compromise, or upon the court's acceptance of the compromise.   For the reasons  


explained in this opinion, we conclude that a civil compromise is not effective unless and  


until it is approved by the court.  


           Underlying facts  


                      TheState initially charged Francis Paul Azzarella by felony complaint with  


one count of first-degree assault, one count of second-degree assault, and two counts of  



third-degree assault.               But at Azzarella's preliminary hearing, the State did not present  


any evidence to support the felony charges.   Instead, the State dismissed two of the  


charges and reduced the remaining two charges to misdemeanors.  


                      Two days later, on October 4, 2017, Azzarella's attorney filed a notice of  


civil compromise.  In accordance with AS 12.45.130, Azzarella requested a hearing at  


which  the  court  could  hear  evidence  and  make  findings  on  his  proposed  civil  


compromise, and he informed the court that the hearing needed to be held "as soon as  


possible" - specifically by the very next day, October 5. On October 5, before the court  


ruled on Azzarella's proposed civil compromise, a grand jury indicted Azzarella on the  


four original felony charges.  

      1    AS 12.45.120-.140.  

     2     AS       11.41.200(a)(1),              AS        11.41.210(a)(1),              AS        11.41.220(a)(1)(A),                and  

AS 11.41.220(a)(5)(B), respectively.  

                                                                   - 2 -                                                                 2694  

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                                            The trial court subsequently dismissed the indictment, finding that the civil                                                                                                                                                   

compromise was "completed" when Azzarella filed the notice on October 4 and that,                                                                                                                                                                                          

accordingly, "the prosecution of the indictment violates double jeopardy."                                                                                                                                                                           

                                            The State appealed, challenging the trial court's ruling that the filing of a                                                                                                                                                             

notice of civil compromise precluded the State from seeking an indictment on the felony                                                                                                                                                                               


                       Why we reverse the dismissal of the indictment                                                                       

                                            This appeal requires us to interpret Alaska's civil compromise statutes,                                                                                                                                          

AS 12.45.120 through AS 12.45.140, which authorize the court to dismiss a prosecution                                                                                                                                                            

if the defendant meets certain statutory requirements.                                                                                                                         These statutes allow a defendant                                        

to compromise only misdemeanor crimes, and only those "for which the person injured                                                                                                                                                                                


by   the   act  constituting   the   crime   has   a   remedy   by   a   civil   action."     Additionally,  


AS 12.45.120 lists several categories of crimes that may not be compromised.  


                                            The  procedure  for  entering  into  a  civil  compromise  is  described  by  


AS 12.45.130:  


                                            If the party injured appears before the court in which the  


                                            defendant is bound to appear, at any time before trial, and  


                                            acknowledges in writing that satisfaction has been received  


                                            for  the  injury,  the  court  may,  on  payment  of  the  costs  


                                            incurred, order the prosecution dismissed and the defendant  


                                            discharged.  The order is a bar to another prosecution for the  


                                            same crime.  


Further, AS 12.45.140 explains that a crime may not be compromised, nor may the  


prosecution be dismissed or stayed, "except as provided by law."  

           3          AS 12.45.120.  

                                                                                                                                     -  3 -                                                                                                                                 2694

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                                 Azzarella argued in the trial court that, once he filed his notice of civil                                                                                                 

compromise, the double jeopardy clause of the United States Constitution prevented the                                                                                                                           

State from indicting him.                                       The court agreed and dismissed the indictment. But we reject                                                                               

this contention.   

                                 A defendant cannot enter into a civil compromise unilaterally; instead, a                                                                                                           

civil compromise becomes effective only if the court, in its sound discretion, agrees to                                                                                                                           


accept the compromise.                                                                                                                                                                                          

                                                                  The filing of a notice of civil compromise simply alerts the  


court that the defendant is proposing a non-criminal resolution of the case; such notice  


does not direct the court to accept or reject a particular agreement, nor does it confer a  


right  of  dismissal  upon  the  accused.                                                            Under  AS  12.45.130,  it  is  the  court's  order  


approving a civil compromise and dismissing the charges against a defendant - not the  


defendant's request for such an order - that acts as "a bar to another prosecution for the  



same crime." 


                                 In this case, the trial court did not conduct a hearing or approve the civil  


compromise until after the State indicted Azzarella.  And because Alaska law does not  


authorize the compromise of a felony crime, the court had no authority to dismiss the  


charges  against  Azzarella  under  the  civil  compromise  statute  after  Azzarella  was  



                            We therefore conclude that the trial court erred in dismissing Azzarella's  


        4        AS  12.45.130;  see  also  State  v.  Nelles,  713  P.2d  806,  810  (Alaska  App.  1986)  

("[U]nder [AS 12.45.130] the decision whether to dismiss or prosecute is vested in the sound  

discretion of the trial court, and no right of dismissal is conferred upon the accused.").  

        5        AS 12.45.130.  

        6        See AS 12.45.120; AS 12.45.140.  

                                                                                                      - 4 -                                                                                                  2694

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                             We acknowledge that the State did not specifically declare its intention to                                                                              

 indict Azzarella at the time of the preliminary hearing. But Azzarella does not claim that                                                                                       

the State's decision to indict him was the result of prosecutorial vindictiveness or an                                                                                              



 attempt to secure two opportunities to prosecute him.                                                               Moreover, nothing in the record  

 suggests that the State convened the grand jury and secured an indictment in response  



to Azzarella's notice of civil compromise.                                                   Under these circumstances, the trial court's  


 finding that prosecution of the indictment violated double jeopardy was incorrect.  


                             We similarly reject Azzarella's contention that the filing of the notice of  


 civil compromise automatically stayed the proceedings, such that the State was barred  


 from securing an indictment until after the trial court conducted the civil compromise  


hearing.  In fact, AS 12.45.140 provides that the prosecution may not be stayed "except  

        7      Cf. State v. Kameroff, 171 P.3d 1160, 1162-63 (Alaska App. 2007) (holding that  

where a defendant knew that the State would pursue an indictment for felony charges that  


were dismissed at a preliminary hearing, the indictment for the previously dismissed charges  


 did not violate double jeopardy); United States v. Quinones, 906 F.2d 924, 927-28 (2d Cir.  


 1990) (rejecting a double jeopardy claim where the government indicted a defendant for a  


higher charge after informing the defendant that it intended to bring the charge, even though  

the defendant entered a guilty plea to lesser charges in an effort to bar the government from  


bringing the higher charge, and concluding that there was no indication that the government  

was engaging in the overreaching that the double jeopardy clause was designed to prevent).  


        8      In fact, Azzarella's notice of civil compromise specifically requested that the court  


hold  a  hearing  on  the  proposed  civil  compromise  "as  soon  as  possible"  and  "by  .  .  .  


 October 5, 2017," which was the date that the felony charges were presented to the grand  


jury.         This  record  suggests  that  Azzarella  may  have  been  aware  of  the  forthcoming  



                                                                                        -  5 -                                                                                  2694

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as authorized by law."                                                              There is nothing in the civil compromise statutes to suggest that                                                                                                                                                             


a stay enters as a matter of law once a notice is filed.                                                                                                                                                 


                                                  The judgment of the superior court is REVERSED. This case is remanded  


to the superior court with instructions to vacate the civil compromise and to reinstate the  


             9           We do not reach the question of whether a court has the authority to enter an order                                                                                                                                                         

staying the proceedings after the filing of a notice of civil compromise.                                                                                                                                                                                            However, we do  

reject the premise that such a stay enters automatically without any action by the trial court.                                                                                                                                                                                

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