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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
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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.
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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
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.
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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
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.
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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
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.
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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.
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