Opinion
Court of Appeals No. A-11248 No. 6125
12-10-2014
STEPHEN H. NICKOLI, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Hanley Robinson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Trina Sears, Assistant District Attorney, Palmer, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3PA-10-2937 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge. Appearances: Hanley Robinson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Trina Sears, Assistant District Attorney, Palmer, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Stephen H. Nickoli pleaded guilty to one count of first-degree sexual abuse of a minor for vaginally penetrating his seven-year-old niece. As part of his plea agreement, Nickoli admitted that his offense was aggravated. The superior court sentenced Nickoli to 60 years with 20 years suspended, 40 years to serve, and 15 years of probation.
AS 11.41.434(a)(1).
On appeal, Nickoli argues that the superior court erred in rejecting his proposed statutory mitigating factor of duress, coercion, threat, or compulsion based on the effects of his fetal alcohol syndrome. Nickoli also argues that the sentencing court impermissibly relied on unverified hearsay statements by S.H.'s guardian ad litem alleging that S.H. had been subjected to other incidents of sexual abuse by Nickoli. Lastly, Nickoli argues that his sentence is excessive.
We conclude that the superior court did not err in rejecting Nickoli's proposed mitigator. However, we remand this case for resentencing because it appears that the sentencing judge improperly relied on the guardian ad litem's unverified hearsay allegations in imposing Nickoli's sentence. Because we are remanding for resentencing, we do not address Nickoli's excessive sentence claim.
Factual background and prior proceedings
Early on the morning of October 30, 2010, twenty-four-year-old Stephen Nickoli, who has been diagnosed with fetal alcohol syndrome, intellectual disabilities, depression, and substance abuse, returned to his adoptive parents' home following a night spent drinking alcohol and smoking marijuana. Nickoli went to his room and started watching a pornographic movie but because that "wasn't doing it for him," he entered the bedroom where his seven-year-old niece, S.H., and her mother were sleeping.
Nickoli grabbed S.H., covered her mouth to stop her from making noise, and took her back to his bedroom. He asked S.H. if she would have sex with him. When she said no, he held her down and penetrated her vaginally. During the attack, Nickoli choked S.H., who was screaming and struggling. S.H.'s screams alerted her grandfather that something was wrong. The grandfather came into Nickoli's bedroom and found Nickoli positioned between S.H.'s open legs.
During the police investigation, S.H.'s mother stated that on a previous occasion, she had awoken to find Nickoli standing in her bedroom. After that incident, she installed a lock on her bedroom door. She stated that she generally used this lock at night, although she apparently had not used it on the night of this incident.
At a forensic interview conducted a few hours after the incident, S.H. also said that Nickoli had come into her room once before. Nickoli's presentence report mentioned these statements, characterizing them as S.H. saying that Nickoli had "tried to do [it] once before."
Nickoli was charged with first-degree sexual abuse of a minor, first-degree sexual assault, and kidnapping. He subsequently pleaded guilty to first-degree sexual abuse of a minor under a plea agreement that left sentencing open. As part of the plea agreement, he admitted two statutory aggravating factors — that the victim was a particularly vulnerable victim and that his conduct was among the most serious included in the definition of the offense.
AS 11.41.434(a)(1) (first-degree sexual abuse of a minor); AS 11.41.410(a)(1) (first-degree sexual assault); AS 11.41.300(a)(1) (kidnapping).
AS 12.55.155(c)(5), (c)(10), respectively.
At sentencing, Nickoli proposed mitigator AS 12.55.155(d)(3) — that he acted under some degree of duress, coercion, threat, or compulsion — on the theory that the effects of his fetal alcohol syndrome caused him to act irrationally and impulsively when he drank alcohol. Superior Court Judge Eric Smith rejected this proposed mitigator. The judge acknowledged that Nickoli had been diagnosed with fetal alcohol syndrome, but he concluded that Nickoli had failed to establish any nexus between his diagnosis and his claim of "compulsion."
During the sentencing hearing, S.H.'s guardian ad litem from an ongoing child-in-need-of-aid case described the impact of Nickoli's actions on S.H. In the course of her comments, the guardian ad litem referred to other incidents of sexual abuse allegedly perpetrated against S.H. by Nickoli and others, telling the court that the charges against Nickoli "did not begin to tell the story of this little seven-year-old girl who had been raped by the men in her home on an ongoing basis." The guardian ad litem did not explain the source of her information, noting only that the information had "come up in the context of [S.H.'s] further conversations with counselors and [herself] and other people... ."
The defense attorney objected to any use of the guardian ad litem's hearsay allegations at sentencing, asserting that the defense received no notice in the discovery or the presentence report of any other allegations of abuse by Nickoli. The sentencing judge expressed surprise about the allegations of past abuse and asked the prosecutor if she was aware of the other allegations.
The prosecutor stated that she, too, had been unaware of the allegations, and she agreed that there was nothing in the discovery or in S.H.'s past statements pointing to prior abuse by Nickoli. The prosecutor noted, however, that both S.H. and her mother recounted a previous incident in which Nickoli came into their room in the middle of the night and then left when the mother woke up, and that this incident was documented in the discovery and the presentence report.
As a second felony offender, Nickoli faced a presumptive range of 30-40 years. Because Nickoli stipulated to the existence of a statutory aggravating factor, the trial court was authorized to sentence him up to a maximum sentence of 99 years. Judge Smith imposed a sentence of 60 years with 20 years suspended, 40 years to serve. In imposing that sentence, the judge emphasized the "horrific" nature of the crime and the fact that it involved significant physical violence. The judge stated that deterrence and isolation were the primary goals of the sentence, and that an active term at the high end of the presumptive range was appropriate because of the seriousness of the crime, the familial relationship between S.H. and Nickoli, and because "it appears this had happened before."
See AS 12.55.125(i)(1)(D).
See AS 12.55.125(i)(1); AS 12.55.155(a)(1).
This appeal followed.
Why we conclude that the superior court did not err in rejecting Nickoli's proposed statutory mitigator
Nickoli argues that, based on his fetal alcohol syndrome, the superior court should have found mitigating factor AS 12.55.155(d)(3) — that he acted under some degree of duress, coercion, threat, or compulsion. But Nickoli's only argument in support of this statutory mitigator is that he acted "compulsive[ly]" and that he does not make "rational decisions" when he drinks alcohol because of the effects of his fetal alcohol syndrome.
Seven months after Nickoli was sentenced, the Alaska Legislature enacted AS 12.55.155(d)(20), which authorizes sentencing courts to reduce a defendant's sentence below the presumptive range if the defendant suffers from fetal alcohol spectrum disorder and demonstrates that the disorder "substantially impaired" his judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life, and "significantly affected the defendant's conduct." However, the legislature prohibited the use of this mitigating factor in cases involving offenses against the person, which includes all sexual assault and sexual abuse offenses. Because this mitigating factor was enacted after Nickoli was sentenced, it is not before us in this case.
To establish the mitigating factor of compulsion under AS 12.55.155(d)(3), a defendant must prove by clear and convincing evidence that he committed the offense under a compulsion that, although insufficient to constitute a complete defense, "was of a sufficiently extraordinary nature that it approaches being a defense to the crime."
Bynum v. State, 708 P.2d 1293, 1294 (Alaska App. 1985).
Nickoli argues that the superior court improperly concluded that mitigator (d)(3) could never apply to a person with fetal alcohol syndrome. But the record shows that the superior court did not rule that the mitigator could never apply to a person with fetal alcohol syndrome. Rather, the court found that Nickoli had failed to establish any nexus between his diagnosis and his conduct, nor "any specific compulsion that rises to the level contemplated by the mitigator." We find no error in the superior court's rejection of Nickoli's proposed mitigator.
Why we conclude that a remand is required in this case
Nickoli also argues that the sentencing court improperly relied on the guardian ad litem's unverified hearsay allegations that S.H. had been subjected to other abuse. Nickoli points specifically to the judge's reference at sentencing to "other abuse" and his comment that "it appears that this has happened before."
In Nukapigak v. State, our Supreme Court held that a sentencing judge is entitled to consider hearsay allegations of past bad behavior provided that the information is verified and the defendant is given the opportunity to deny it or present contrary evidence of his own. The court defined "verified" to mean "corroborated or substantiated by supporting data or information." The court further noted that "a bare accusation or the mere fact of an arrest is not sufficient to support a conclusion that a defendant has previously engaged in criminal conduct." However, the threshold for verification remains low, and the "supporting data or information" may be contained in the hearsay account itself, provided the account "appears minimally trustworthy."
562 P.2d 697 (Alaska 1977), on reh'g, 576 P.2d 982 (Alaska 1978).
Id. at 701.
Id.
Id.
Evan v. State, 899 P.2d 926, 928 (Alaska App. 1995) (quoting Nukapigak, 576 P.2d at 984).
Although the threshold for verification is low, we conclude that it was not met in this case. Neither the presentence report nor the pretrial discovery mentioned any other allegations of abuse, and the guardian ad litem never identified the source of her information — that is, whether she heard the information directly from S.H. or through hearsay reports from other people involved in S.H.'s treatment and care. In addition, the guardian ad litem spoke of sexual abuse supposedly perpetrated by "the men in [S.H.'s] home," but the guardian did not purport to identify which of these alleged acts of abuse were perpetrated by Nickoli as opposed to the other men living in the home.
See, e.g., Dexter v. State, 672 P.2d 144, 145-46 (Alaska App. 1983) (police officer's testimony that an alleged rape victim's boyfriend told him about the alleged rape was unverified hearsay that could not be relied on by sentencing court).
We recognize that there were statements in the presentence report — the allegations by S.H. and her mother that Nickoli previously entered their room in the middle of the night and left when S.H.'s mother woke up — that legitimately might have caused the sentencing court concern. But the court did not limit its remarks to these allegations. Rather, the court referred to "other abuse" and said "it appears that this has happened before." From these remarks, it appears that the court improperly relied on the guardian ad litem's allegations, not the statements in the presentence report.
Because the guardian ad litem's hearsay allegations failed to meet even the low threshold required for verification, the judge was not entitled to rely on it, nor was Nickoli required to testimonially deny or otherwise rebut the allegations.
See Davison v. State, 307 P.3d 1, 4 (Alaska App. 2013); Cleveland v. State, 258 P.3d 878, 886 (Alaska App. 2011).
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Conclusion
We REMAND this case for resentencing. We do not retain jurisdiction of this case.