Made available by Touch N' Go Systems, Inc. and
This was Gottstein but needs to change to what?
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 274-9493

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


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

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

                                                                                      NOTICE
  

                   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
  

                                                                          Fax:  (907) 264-0878
  

                                                            E-mail:  corrections @ akcourts.us
    



                           IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



STATE OF ALASKA,  

                                                                                                               Court of Appeals No. A-13146  

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



                                            v.  

                                                                                                                                 O P I N I O N  

FRANCIS PAUL AZZARELLA,  



                                                           Appellee.                                             No. 2694 - March 19, 2021  



                             Ap                          

                                    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,  

                                                                               

                             Judges.  



                             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                                                                                             


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

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



                    1  

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  



                                 2 

                                                                                                      

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  


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

                                            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                                                                                                                                                                               



charges.   



                       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                                                                                                                                                                                



                                                                                                                                                                                                                                     3  

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
  


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

                                 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                                                                                                                           



                                                            4  

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  



                                 5  

               

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  



                      6  

indicted.                                                                                                                                                                                  

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



indictment.  



        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
  


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

                             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                                                                                              



                                                                                                                 7  

                                                                                                                                                                             

 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  



                                                                                          8  

                                                                                                                                                                           

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  

                                                                                                                                                       

 indictment.   



                                                                                        -  5 -                                                                                  2694
  


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

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



                                                                                                                                                                                                   9  

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  



indictment.  



             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.                                                                                                                                                                                



                                                                                                                                                        -  6 -                                                                                                                                                  2694
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC