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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
NICK J. EPHAMKA, JR., )
) Court of Appeals No. A-4833
Appellant, ) Trial Court Nos. 4BE-92-111 Cr
) and 4BE-88-228 Cr
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1363 - August 5, 1994]
________________________________)
Appeal from the Superior Court, Fourth
Judicial District, Bethel, Dale O. Curda,
Judge.
Appearances: Elizabeth Brennan,
Assistant Public Defender, Bethel, and John
B. Salemi, Public Defender, Anchorage, for
Appellant. Nancy R. Simel, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, and Coats
and Mannheimer, Judges.
MANNHEIMER, Judge.
On April 7, 1992, the District Attorney's Office
presented the Bethel grand jury with a proposed indictment
charging Nick J. Ephamka, Jr. with second-degree sexual assault,
AS 11.41.420(a)(3)(B). The grand jury, after hearing the
government's evidence, returned a "no true bill" - that is, the
grand jury voted not to indict Ephamka. Three days later, on
April 10, the district attorney's office asked the Bethel
superior court for permission to resubmit the case to the grand
jury. Over Ephamka's objection, Superior Court Judge Dale O.
Curda granted the government's request. Following the second
presentation of the case, the Bethel grand jury voted to indict
Ephamka for second-degree sexual assault.
Ephamka ultimately pleaded no contest to a reduced
charge of attempted second-degree sexual assault; when he entered
this plea, Ephamka reserved the right to appeal Judge Curda's
decision permitting the government to submit his case to the
grand jury a second time. See Cooksey v. State, 524 P.2d 1251
(Alaska 1974).
For the offense of attempted second-degree sexual
assault, Judge Curda sentenced Ephamka to 5 years' imprisonment
with 3 years suspended (2 years to serve). Contemporaneously,
Judge Curda revoked Ephamka's probation from a prior incest
conviction and imposed 3 years' imprisonment that had previously
been suspended for that earlier offense. Judge Curda ordered
that these 3 years be served consecutively to the 2 years he
imposed for Ephamka's current offense. Ephamka thus received a
composite sentence of 8 years' imprisonment with 3 years
suspended (5 years to serve).
Ephamka now appeals to this court, challenging both
Judge Curda's decision permitting the State to resubmit the case
to the grand jury and Judge Curda's sentencing decision. We
affirm.
The grand jury indicted Emphamka for engaging in
unconsented-to sexual contact with G.L., a woman who Ephamka knew
was intoxicated and who was sleeping at the time of the assault.
G.L. awoke to find someone on top of her. She pushed her
assailant away and, after ordering him to leave her alone, she
went back to sleep. A few moments later, G.L. again awoke, this
time to a noise coming from the direction of an easy chair (in
the same room) in which another woman, T.P., was sleeping. G.L.
saw that the man who had just assaulted her was now on top of
T.P.. Like G.L., when T.P. awoke she pushed her assailant away.
The man ran from the house. G.L. did not know her assailant's
identity, but T.P. identified the man as her brother-in-law,
Ephamka.
On April 7, 1992, the Bethel grand jury considered a
proposed indictment charging Ephamka with second-degree sexual
assault for the attack on G.L.. The government presented two
witnesses: G.L., who described the attack but who was unable to
identify her assailant, and police officer Andre Achee, who
testified that T.P. had identified the man as Ephamka. (The
government relied on Alaska Evidence Rule 803(2), the "excited
utterance" exception to the hearsay rule, as the justification
for allowing Achee to testify about T.P.'s identification.)
After considering this evidence, the grand jury returned a "no
true bill", declining to indict Ephamka.
When the government presents a case to the grand jury
and the grand jury declines to return an indictment, AS 12.40.080
requires the government to obtain the superior court's permission
before again submitting the same charge to the grand jury:
Effect of failure to return indictment. When
a grand jury does not return an indictment,
the charge is dismissed, and it may not be
again submitted to or inquired into by the
grand jury unless the court so orders.
On April 10, the district attorney's office sought the superior
court's permission to return to the grand jury and again seek an
indictment against Ephamka for second-degree sexual assault. The
prosecutor asserted that he had more evidence to present to the
grand jury - most importantly, the testimony of T.P.. The
prosecutor surmised that the grand jury had refused to indict
Ephamka because T.P., the witness who could personally identify
him, had not testified. The prosecutor explained that a subpoena
had been issued for T.P. to attend the initial grand jury
hearing, but the police had been unable to locate her in time to
serve the subpoena. Because the 10 days for holding Ephamka in
custody under Alaska Criminal Rule 5(e)(2)(iii)(aa) was about to
expire, the prosecutor had chosen to present the case to the
grand jury notwithstanding T.P.'s absence. Now that T.P. had
been located, the prosecutor wished to present her testimony to
the grand jury.
Judge Curda ruled that the government had shown good
cause for returning to the grand jury. He based this ruling on
the fact that T.P. had been unavailable for the first grand jury
hearing.
On April 15, the district attorney's office again asked
the grand jury to indict Ephamka for second-degree sexual
assault, this time presenting T.P.'s testimony. The grand jury
returned the proposed indictment, leading to the present appeal.
Ephamka argues that Judge Curda abused his discretion
when he allowed the district attorney's office to present the
case to the grand jury a second time.1 Ephamka points out that
T.P.'s testimony was not "newly discovered" as that term is used
in cases dealing with motions for new trial. See, for example,
Adkinson v. State, 611 P.2d 528, 534 (Alaska 1980); Rank v.
State, 382 P.2d 760, 761 (Alaska 1963). Ephamka also points out
that the gist of T.P.'s testimony was communicated (in hearsay
form) to the grand jury by Officer Achee at the first hearing.
Despite Ephamka's objections, we are convinced that Judge Curda
did not abuse his discretion when he allowed the second grand
jury presentation.
Alaska is among the minority of jurisdictions which
require judicial approval before a prosecutor may resubmit a
charge to the grand jury. See generally, Beale & Bryson, Grand
Jury Law & Practice (1986), 6:41, Vol. 1, pp. 242-44; Wayne R.
LaFave & Jerold H. Israel, Criminal Procedure (1984), 15.2(b),
Vol. 2, pp. 287-88; 41 Am.Jur.2d Indictments & Informations 31-
32 (1968). Since 1900, when Congress promulgated Alaska's first
code of criminal procedure, see Andreanoff v. State, 746 P.2d
473, 475 n.2 (Alaska App. 1987), Alaska law has restricted the
government's authority to make multiple presentations of the same
charge to the grand jury. Title 66 of the Compiled Laws of 1949
(the last codification prior to statehood) contained the
following two provisions:
66-8-55. Proceedings where indictment
not found a true bill. [W]hen a person has
been held to answer a criminal charge, and
the indictment in relation thereto is not
found "a true bill," ... it must be
[e]ndorsed "not a true bill," which
[e]ndorsement must be signed by the foreman,
and presented to the court and filed with the
clerk, and remain a public record; but in the
case of an indictment not found "a true bill"
against a person not so held, the same,
together with the minutes of the evidence in
relation thereto, must be destroyed by the
grand jury.
66-8-56. - Effect: Re-examination by
jury. [W]hen an indictment [e]ndorsed "not a
true bill" has been presented in court and
filed, the effect thereof is to dismiss the
charge; and the same can not be again
submitted to or inquired of by the grand
jury, unless the court so orders.
Upon statehood, these two provisions were split. A modified form
of 66-8-55 became Alaska Criminal Rule 6(i) (enacted by Supreme
Court Order No. 4, effective October 4, 1959),2 while 66-8-56
became AS 12.40.080, enacted by the legislature in Sec. 5.08 of
chapter 34, SLA 1962.
No Alaska case has construed AS 12.40.080 or addressed
the reasons why the superior court might properly authorize the
State to present a charge to the grand jury a second time.
Moreover, like AS 12.40.080, most of the analogous statutes from
other states fail to enunciate the standards a court should apply
when determining whether the government should be allowed to
resubmit a charge to the grand jury. However, according to
LaFave & Israel, Criminal Procedure, supra, these statutes "have
been construed as ordinarily requiring a showing of substantial
additional evidence not submitted to the first grand jury."3
While there is little Alaska legislative history
elucidating the purposes behind AS 12.40.080, some light can be
shed on the matter by reviewing the purposes behind the analogous
statute found in New York's Field Code, from which AS 12.40.080
is descended. Andreanoff, 746 P.2d at 475 n.2.
New York Criminal Procedure Law 190.75(3) is the
modern version of New York's resubmission statute; it is derived
from 270 of New York's former criminal code. See Practice
Commentaries, N.Y. Crim. Proc. L. 190.75. Former 270 was
enacted to further a principle analogous to the guarantee against
double jeopardy, "to provide a convenient check" on the
government's practice of repeatedly submitting proposed
indictments to the grand jury after those indictments had been
dismissed. People ex rel. Flinn v. Barr, 181 N.E. 64, 65-66
(N.Y. 1932) (quoting commentary from the proposed Code of
Criminal Procedure, 286). Or, as stated in People v. Field, 15
N.Y.S.2d 561 (N.Y. Crim. Ct. 1939),
If repeated trials for the same offense ...
is contrary to the spirit of our criminal
law, so also is repeated submissions of the
same charge to different grand juries, except
in unusual cases, when for cause shown the
court in its discretion may direct a re-
submission.
Field, 15 N.Y.S.2d at 564-65. Because the purpose of the rule is
to prevent prosecutorial abuse of the grand jury's role in making
charging decisions, "the court's power to grant resubmission[]
should be exercised sparingly and discriminately". People v.
Dykes, 449 N.Y.S.2d 284, 287 (N.Y. App. 1982).
Resubmission can not be based simply on the fact that
the prosecutor (or the judge) is dissatisfied with the grand
jury's decision. People v. Martin, 419 N.Y.S.2d 724, 725 (N.Y.
App. 1979); Practice Commentaries, N.Y. Crim. Proc. L. 190.75.
However, under New York law, newly discovered evidence is but one
basis for permitting the government to resubmit a charge. "What
is required [are] some legitimate[,] concrete reasons that ...
justify a second opportunity to present the case." Practice
Commentaries, N.Y. Crim. Proc. L. 190.75. Accord People v.
Washington, 510 N.Y.S.2d 402, 403 (N.Y. App. 1986); People v.
Ladsen, 444 N.Y.S.2d 362, 365 (N.Y. Sup. Ct. 1981) (stating that
"newly discovered or additional evidence" is not necessarily the
only basis for allowing resubmission). For instance, a judge may
allow the government to resubmit a charge when it is shown that
the grand jury did not conduct a "complete and impartial
investigation" of the case or when it is shown that the grand
jury acted irregularly. People v. Dykes, 449 N.Y.S.2d at 288.
See also People v. Jos‚ C., 487 N.Y.S.2d 499, 502 (N.Y. Crim. Ct.
1985) (resubmission was proper when the court concluded that the
grand jury "must have given the case an incomplete or partial
investigation"). But see People v. Pack, 39 N.Y.S.2d 302, 309
(N.Y. City Ct. 1942) (resubmission is proper only when "new and
substantial facts" are offered).
A review of the New York cases indicates that "new
evidence" for purposes of returning to the grand jury is usually
interpreted to mean simply "additional" evidence, and not the
"newly discovered evidence" that would justify setting aside a
conviction. People v. Ladsen, 444 N.Y.S.2d at 365-66. That is,
when a prosecutor seeks to return to the grand jury based on "new
evidence", New York courts have held that resubmission is
permissible even when the government's new witnesses and evidence
were available to the prosecutor at the time of the first grand
jury hearing and could have been introduced had the prosecutor
acted with due diligence. See People v. Martin, 419 N.Y.S.2d at
725.
At the same time, the fact that the government's
additional evidence was unavailable at the time of the first
grand jury proceeding is a factor that a court can rely on in
deciding to allow resubmission of the charge. For instance, it
is proper to allow the government to return to the grand jury to
present the testimony of a witness who was unavailable during the
first grand jury hearing. Ladsen, 444 N.Y.S.2d at 366; see
People v. Zirpola, 451 N.Y.S.2d 483, 484 (N.Y. App. 1982)
(government was allowed to return to the grand jury to present
the testimony of a co-defendant who, as part of a plea bargain,
agreed to waive the privilege against self-incrimination and
testify against the defendant).
Another factor a court should consider is whether the
prosecutor has acted with due diligence. People v. Anderson, 531
N.Y.S.2d 638, 639 (N.Y. App. 1988) (holding that the trial court
improperly denied the government's resubmission request when the
prosecutor discovered new evidence that was not available at the
time of the first grand jury hearing despite the government's
diligent efforts). Cf. People v. Williams, 493 N.Y.S.2d 540, 543
(N.Y. Sup. Ct. 1985) (indicating that the diligence of the
prosecutor and the realities of the investigative process are
factors to be considered).
Using these criteria, we conclude that Judge Curda did
not abuse his discretion when he allowed the prosecutor to
resubmit the second-degree sexual assault charge to the grand
jury. Under the facts of this case, Judge Curda could
justifiably conclude that T.P. had important testimony to give on
the issue of Ephamka's identity as G.L.'s assailant, and the
judge could also justifiably conclude that the government had
made diligent but unsuccessful efforts to present T.P.'s
testimony to the grand jury at the first hearing. We therefore
uphold Judge Curda's decision to allow the State to return to the
grand jury, and we thus uphold the resulting indictment.
We now turn to Ephamka's attack on his sentence.
Ephamka was a second-felony offender convicted of attempted
second-degree sexual assault, a class C felony under AS
11.41.420(b) and AS 11.31.100(d)(4). At the time of his offense,
Ephamka was on probation from a 1988 conviction for incest for
which he had received a sentence of 5 years' imprisonment with 3
years suspended. In addition to this prior felony, Ephamka had a
juvenile delinquency adjudication for second-degree sexual
assault.
Ephamka faced a presumptive term of 2 years'
imprisonment for his present crime. AS 12.55.125(e)(1). Judge
Curda found that the State had proved three aggravating factors
under AS 12.55.155(c): (c)(10) - that Ephamka's conduct was among
the worst included in the definition of attempted second-degree
sexual assault because Ephamka had actually committed a higher
degree of offense (a completed sexual assault); (c)(19) - that
Ephamka had a delinquency adjudication for conduct that would
have been a prior felony if committed by an adult; and (c)(20) -
that Ephamka was on felony probation when he committed the
present crime. Based on these aggravating factors, Judge Curda
enhanced Ephamka's sentence by adding 3 years of suspended
imprisonment to the 2-year presumptive term; that is, he
sentenced Ephamka to 5 years' imprisonment with 3 years
suspended. In addition, Judge Curda revoked the remaining 3
suspended years of imprisonment from Ephamka's incest conviction
and ran these 3 years consecutively to the attempted second-
degree assault sentence. Thus, Ephamka received a composite
sentence of 8 years' imprisonment with 3 years suspended (5 years
to serve).
Ephamka concedes that Judge Curda found his prospects
for rehabilitation to be "guarded", but he notes that the
prosecutor asked only for a composite 4 years to serve. Ephamka
argues that Judge Curda had no reason to exceed the prosecutor's
recommendation. We disagree.
Judge Curda noted that, even though Ephamka was only 23
years old at the time of sentencing, he had already had
substantial contact with the justice system, both as a juvenile
and as an adult. Judge Curda noted that Ephamka had a history of
sexual offenses, as well as a history of doing poorly on
probation. Based on these factors, Judge Curda concluded that
Ephamka's chances for rehabilitation were guarded, that Ephamka's
rehabilitation, if it was to occur, would have to occur in the
structured setting of a corrections facility, and that his
sentence had to emphasize the sentencing goals of deterrence and
community condemnation. See AS 12.55.005.
Judge Curda imposed a total of 5 years to serve, not
the 4 years the prosecutor recommended. But it is the judge who
must decide a defendant's sentence, not the prosecutor.
Reasonable people can differ regarding the proper sentence for a
particular defendant; the supreme court's adoption of the
"clearly mistaken" standard of review in sentence appeals rests
on the recognition that there is a "range of reasonable
sentences" for any given defendant. State v. Wentz, 805 P.2d
962, 965 (Alaska 1991). Having examined the entire record in
this case, we conclude that the sentence imposed by the superior
court is not clearly mistaken. McClain v. State, 519 P.2d 811,
813-14 (Alaska 1974).
The judgement of the superior court is AFFIRMED.
_______________________________
1 Since the superior court's decision rests on a weighing
of equities based on the particular facts of the case, the proper
standard of review is "abuse of discretion". This is the
standard used by the courts of New York: See People v. Zirpola,
451 N.Y.S.2d 483, 484 (N.Y. App. 1982) modified, 57 N.Y.2d 706
(N.Y. 1982).
2 This original version of Alaska Criminal Rule 6(i) read,
in pertinent part:
Finding and Return of Indictment. ... The indict
ment shall be returned by the grand jury in open court
to the presiding judge. If the defendant has been held
to answer and a majority of jurors do not concur in
finding an indictment, the foreman shall so report to
the court in writing forthwith.
3 There are four states whose statutes expressly provide
that resubmission is permitted only when the prosecutor has
additional information that was not presented to the first grand
jury. See Colorado Statute 16-5-204(e) (requiring "additional
evidence"), Georgia Code 27-702 (requiring that, after the
grand jury has twice returned a "no true bill", the government
must present newly discovered evidence or demonstrate fraudulent
conduct on the part of the accused), Nebraska Statute 29-
1416(2) (requiring a demonstration that additional evidence has
been discovered), and New Mexico Statute 31-6-11.1 (prohibiting
a second grand jury inquiry into the same matter if the second
inquiry is based on the same evidence).
