Opinion
A-13375
12-22-2021
PETER GEORGE NICORI, Appellant, v. STATE OF ALASKA, Appellee.
Megan R. Webb, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Fourth Judicial District No. 4BE-16-00547 CR, Bethel, Dwayne W. McConnell and Raymond Funk, Judges.
Megan R. Webb, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
ALLARD Judge.
Peter George Nicori was convicted, following a jury trial, of first-degree assault and third-degree assault for causing injuries to John Andrew Jr. Nicori was also convicted of an additional count of third-degree assault for causing injury to Allen Nicori, his brother. The jury found Nicori not guilty of committing second-degree assault against Allen Nicori. At sentencing, the superior court imposed a composite sentence of 28 years with 7 years suspended (21 years to serve).
AS 11.41.200(a)(1) and AS 11.41.220(a)(5), respectively.
AS 11.41.220(a)(5).
AS 11.41.210(a)(2).
On appeal, Nicori argues that the superior court erred in denying his motion to dismiss the indictment for prosecutorial vindictiveness. For the reasons explained in this decision, we find no error.
Nicori also challenges various aspects of his sentence. Specifically, Nicori argues (1) that the two assault convictions involving Andrew should have merged; (2) that the superior court erroneously relied on conduct for which Nicori had been acquitted in sentencing Nicori for the assault against his brother; (3) that the written judgment does not reflect the court's oral ruling allowing contact with his brother; and (4) that the superior court erred in failing to strike an unproven allegation from the presentence report.
We agree with Nicori that the two assault convictions involving Andrew should have merged, and we agree that the written judgment and the presentence report must be amended. However, we find no error in the sentence imposed for Nicori's third-degree assault of his brother.
Accordingly, we remand this case for merger of the assault convictions against Andrew and a re-sentencing. On remand, the superior court shall correct the written judgment to reflect its oral ruling that contact between Nicori and his brother is not prohibited. The superior court shall also strike the unproven allegation from the presentence report.
Background facts
In August 2016, Peter George Nicori was attending a party at the house of John Andrew Jr. in Kwethluk. Most of the people at the party, including Nicori, were intoxicated. Allen Nicori, Nicori's brother, also showed up at the party. The two brothers ended up fighting.
At trial, Allen Nicori suggested that he had been the aggressor, saying that the fight happened because he kept trying to push past Nicori. He also testified that the two were just wrestling. But, prior to trial, Allen Nicori told a state trooper that Nicori had started the fight and had hit him multiple times. This interview was recorded and played for the jury.
Allen Nicori testified that at one point, Nicori was on top of him, and he responded by putting Nicori in either a chokehold or a headlock and by "fish-hooking" Nicori - i.e., putting his middle finger in Nicori's mouth and pulling on the side of the mouth to try to move Nicori's head. Nicori then bit off the tip of Allen Nicori's middle finger.
At some point after Nicori bit Allen Nicori's finger, Andrew (who lived at the house) told Nicori to leave. Nicori responded by punching Andrew in the head, causing him to fall to the floor. Nicori then kicked and stomped on Andrew's legs and lower torso, while two other people hit Andrew in the head and upper body.
Andrew's bladder was ruptured during this assault, and he had to be airlifted to Anchorage for surgery. The doctor who performed the operation testified that he would not have healed without surgery.
Allen Nicori had visible discoloration and swelling on his face and head. He also permanently lost the tip of his finger, and he testified that he still felt nerve pain in his finger in the winter.
Nicori was ultimately charged with first- and third-degree assault for his conduct against Andrew and second- and third-degree assault for his conduct against Allen Nicori.
At trial, Nicori argued that his conduct against Allen Nicori was self-defense. He also argued that it was not clear which of the people assaulting Andrew caused him which injuries, and that Andrew's bladder injury was not a "serious injury."
The jury found Nicori not guilty of second-degree assault against Allen Nicori, but guilty of all other counts.
The superior court sentenced Nicori to 20 years with 2 years suspended for the first-degree assault on Andrew, 4 years with 3 years suspended for the third-degree assault on Andrew, and 4 years with 2 years suspended for the third-degree assault on Allen Nicori, with all time to be served consecutively-resulting in a composite sentence of 28 years with 7 years suspended (21 years to serve). The court also sentenced Nicori to 10 years of supervised probation.
This appeal followed.
Nicori's motion to dismiss the indictment based on prosecutorial vindictiveness
Nicori was originally charged in this case by a complaint dated August 17, 2016 - the day after the assaults took place. The complaint charged Nicori with two counts of third-degree assault for conduct against Allen Nicori. The first count alleged that Nicori, with criminal negligence, caused serious physical injury by means of a dangerous instrument. The second count alleged that Nicori had committed a recidivist assault - i.e., that he had committed fourth-degree assault by either recklessly causing physical injury or, with criminal negligence, causing physical injury by means of a dangerous instrument and, within the preceding ten years, had been convicted on two or more separate occasions of such an assault. The complaint did not charge Nicori for any conduct against Andrew.
AS 11.41.220(a)(4).
AS 11.41.220(a)(5)(B).
However, on August 31, the State indicted Nicori on four counts of third-degree assault, with two counts for conduct against Andrew and two counts for conduct against Allen Nicori. For each victim, the indictment charged one count based on the theory that Nicori, with criminal negligence, caused serious physical injury by means of a dangerous instrument (for using his foot as a dangerous instrument to rupture Andrew's bladder and his teeth to bite Allen Nicori's finger), and one count based on the recidivist assault theory.
On September 14, the State requested leave to re-indict Nicori, explaining that it had identified a mistake in the grand jury proceeding underlying the indictment. The superior court granted the request and Nicori was re-indicted that day. The charges remained the same.
Finally, on November 23, the State again re-indicted Nicori. It increased one of the assault charges for conduct against Andrew to first-degree assault under the theory that Nicori recklessly (as opposed to negligently) caused serious physical injury by means of a dangerous instrument. And it increased one of the assault charges for conduct against Allen Nicori to second-degree assault under the theory that Nicori recklessly (as opposed to negligently) caused serious physical injury. The State did not change the recidivist third-degree assault charges. Nicori faced trial on these four charges.
Throughout this pretrial process, Nicori was trying to obtain discovery from the State. On August 29, Nicori filed a "demand for discovery" from both the Alaska State Troopers and the Kwethluk Police Department.
At an omnibus hearing on November 17, Nicori explained that he had recently received some discovery from the State but he had not received audio recordings that he believed were in the possession of Alaska State Trooper Paul Secor. The State represented that Trooper Secor had dropped off discovery that morning and that it would have the discovery to Nicori by the end of the day. The court set a hearing for November 22 to ensure that it had been delivered.
Nicori asserts on appeal that he also discussed discovery at a November 2 omnibus hearing. And Nicori's attorney's remarks at the November 17 hearing suggest that this was the case. But the November 2 omnibus hearing was not transcribed.
At the November 22 hearing, Nicori represented that he had received audio recorded by Trooper Secor but that he was still awaiting additional audio and video evidence from a Kwethluk police officer and another state trooper. Trooper Secor, who was at the hearing, then handed a disk to the prosecutor that he said contained audio, video, and photographs from the other trooper. The prosecutor - who was covering the hearing for the prosecutor assigned to the case - represented that he had no information about the discovery from the Kwethluk Police Department. When asked by the court if the State had requested discovery from the Kwethluk Police Department, the prosecutor answered that he could not see from the file that this had been done. The court then ordered the State to provide the discovery from the Kwethluk Police Department by November 30. It is unclear whether the State attempted to comply with this order, but a previously undisclosed record from the Kwethluk Police Department was later provided to the defense during trial.
The following day, November 23, is when the State obtained its third and final indictment of Nicori, increasing the severity of two of the assault charges from the prior indictments.
Nicori filed amotion to dismiss the indictment for prosecutorial vindictiveness. Nicori argued that the State's action in re-indicting him on higher charges after he exercised his right to discovery established a prima facie case of apparent vindictiveness that the State had the burden of negating. The superior court initially agreed, but, after the State moved to reconsider, the court concluded that Nicori had not established a prima facie case of apparent vindictiveness.
In its order granting the State's motion for reconsideration, the superior court ruled that Nicori could nevertheless subpoena the prosecutor to testify at an evidentiary hearing so that Nicori could attempt to show actual (as opposed to apparent) vindictiveness. The State moved to reconsider this order, but the court denied the motion because the State was barred from filing a second request for reconsideration. The State petitioned for review of this ruling. We granted the petition and ruled that the State was not barred from filing the second motion because it addressed an issue that arose from the superior court's resolution of the first motion for reconsideration. State v. Nicori, 407 P.3d 518, 519-20 (Alaska App. 2017). Following our ruling on the petition for review, the superior court granted the State's second motion for reconsideration, concluding that Nicori had not set forth any grounds for holding an evidentiary hearing on actual vindictiveness. Nicori does not argue actual vindictiveness on appeal.
In its order granting the State's motion for reconsideration, the court concluded that the State had minimal stake in denying discovery to the defense because it had an independent duty to provide discovery and could be sanctioned for failing to do so. The court also concluded that there was not a strong link between the request for discovery and the third indictment, noting that Nicori had consistently requested discovery throughout the pendency of the case. Thus, the court concluded that Nicori had not established a realistic likelihood of vindictiveness.
See Atchak v. State, 640 P.2d 135, 145-46 (Alaska App. 1981) (determining "the strength of the appearance of vindictiveness" by first assessing the prosecution's interest "in deterring exercise of the specific right asserted by the defendant and, second, scrutiny of the state's conduct for a connection between assertion of a right by the accused and an increase or threatened increase in charges by the state").
On appeal, Nicori renews his argument that he had established a prima facie case of apparent vindictiveness and that the burden therefore shifted to the State to negate the appearance of vindictiveness. We disagree.
As a general matter, the State violates a defendant's right to due process if the State makes or alters a charging decision to vindictively punish the defendant for exercising a legally protected right.
State v. Pete, 351 P.3d 346, 349 (Alaska App. 2015).
In Atchak v. State, we held that a defendant may litigate either actual or apparent vindictiveness. In order to show apparent vindictiveness, the defendant must prove facts that give rise to a "realistic likelihood of vindictiveness." This showing establishes a prima facie case that the State's charging decision was vindictive, and the burden shifts to the State to establish anon-vindictive explanation for its charging decision.
Atchak, 640 P.2d at 142-44; see also Pete, 351 P.3d at 349.
Pete, 351 P.3d at 349.
Id.
In United States v. Goodwin, a case postdating Atchak, the United States Supreme Court held that, as a matter of federal due process, no presumption of vindictiveness applied to pretrial prosecutorial decisions. It reasoned that "a defendant before trial is expected to invoke procedural rights that inevitably impose some 'burden' on the prosecutor" and that "[i]t is unrealistic to assume that a prosecutor's probable response to such motions is to seek to penalize and to deter." Moreover, it explained that "there are certain advantages in avoiding a rule that would compel prosecutors to attempt to place every conceivable charge against an individual on the public record from the outset."
United States v. Goodwin, 457 U.S. 368, 382-83 (1982).
Id. at 381.
Id. at 382 n.14.
Following Goodwin, we held that, as a matter of due process under the Alaska Constitution, an upward adjustment of charges does not establish a prima facie case of apparent vindictiveness, "at least when the change in the charges is made prior to or at the time of the initial indictment." And we have explained that even after an initial indictment, prosecutorial vindictiveness does not necessarily apply every time the State adds a new charge. At a minimum, a successful claim of prosecutorial vindictiveness must involve circumstances showing that the State's "decision to increase a defendant's charges was motivated by a desire to retaliate against the defendant for the exercise of some procedural right." There must be a "close temporal - or otherwise apparent - link between the exercise of the right and the 'penalty'" for there to be a "realistic likelihood of vindictiveness."
Dyer v. State, 666 P.2d 438, 443 (Alaska App. 1983).
Ramsey v. State, 834 P.2d 811, 813-14 (Alaska App. 1992).
Mat 814.
Id. (quoting Atchakv. State, 640 P.2d 135, 146 (Alaska App. 1981)).
Nicori asserts that there was a close temporal link between his request for discovery and the State's decision to re-indict him on higher charges. But, as the superior court explained, Nicori was regularly requesting discovery. In the context of the case, Nicori's request for additional discovery at the November 22 hearing was not particularly unusual. Under Nicori's theory, it is hard to imagine when the State would have been free to reevaluate its indictment without giving rise to a presumption of vindictiveness. And other than this weak temporal relationship, there was nothing to connect the decision to re-indict with the request for discovery.
Cf. Atchak, 640 P.2d at 146 (finding prosecutorial vindictiveness when the prosecutor first mentioned re-indicting on higher charges in response to the defense attorney's statement that he intended to renew a motion to dismiss).
Nicori also challenges the superior court's conclusion that the State had very little "stake" in punishing Nicori for requesting discovery. But we agree with the superior court. The State was independently required to provide discovery, and there is no obvious connection between a request for discovery and a decision to re-indict.
Id.
See generally Alaska R. Crim. P. 16 (outlining information the State is required to provide or make available for defense counsel as part of discovery).
Finally, Nicori contends that two other circumstances suggest vindictiveness. First, Nicori points out that the State did not request permission from the court to re-indict the second time when it increased the charges, even though it did request permission the first time. And second, Nicori asserts that the change in charges reflected a change in culpable mental state (from criminal negligence to recklessness) and therefore was less likely to be the product of newly acquired evidence. But the State requested permission to re-indict the first time because it was re-indicting on the same charges; there is generally no requirement that the State request permission to increase charges against a defendant. Similarly, the State is generally allowed to reevaluate charging decisions, especially charging decisions that are made as it is still collecting evidence (as was the case here, evidenced by the litigation over discovery).
In this case, after the superior court issued its initial order finding a prima facie case of apparent prosecutorial vindictiveness, a prosecutor submitted an affidavit saying that the district attorney's office had received medical records for Andrew on November 16 and November 22 and had issued subpoenas for grand jury witnesses on November 18, which further suggests that the decision to re-indict was unrelated to Nicori's request for discovery at the November 22 hearing. The superior court did not rely on this affidavit in its order upon reconsideration. And Nicori argues that we should not rely on this affidavit when deciding whether he has made a prima facie case, contending that the affidavit would be relevant only as rebuttal once a prima facie case is established. We need not decide whether it would be appropriate to rely on the affidavit because we conclude that Nicori has not made a prima facie case of apparent vindictiveness regardless of whether the affidavit is considered. Cf. In re Triem, 929 P.2d 634, 646 (Alaska 1996) (concluding, in an attorney disciplinary proceeding, that there was no realistic likelihood of vindictiveness when an additional charge was added before the person filing charges "had finalized his analysis of the case" and made "formal charges" and that there would be no realistic likelihood "even if new charges had been added after the formal [charges] [were] filed").
We therefore affirm the superior court's denial of Nicori's motion to dismiss his indictment based on apparent prosecutorial vindictiveness.
Merger of the assault convictions for conduct against Andrew
As explained above, the jury found Nicori guilty of one count of first-degree assault and one count of third-degree assault for his conduct against Andrew. The jury's verdicts were based on testimony that Nicori punched Andrew in the head, causing him to fall to the ground, and that he then kicked and stomped on Andrew's lower torso and legs. In her closing argument to the jury, the prosecutor asserted that the count of third-degree assault was for punching Andrew while he was standing and that the count of first-degree assault was for kicking and stomping on Andrew after he had fallen.
After the jury found him guilty of both counts, Nicori argued that the two convictions should merge. The superior court declined this request and, on appeal, Nicori renews his contention that the convictions should merge. Because the assault charges against Andrew stemmed from a continuous course of conduct, we agree that merger was required.
Under S.R.D. v. State, "multiple blows struck in the course of a single, continuous criminal episode" constitute one assault; separate assaults occur "when blows are struck at clearly separate times and in clearly separate incidents, that is, when one blow is separated from another by a change in purpose, a 'fresh impulse,' or a different provocation."
S.R.D. v. State, 820 P.2d 1088, 1092-93 (Alaska App. 1991) (quoting Gray v. United States, 544 A.2d 1255, 1257 (D.C. App. 1988)).
Here the record shows that Nicori engaged in one continuous criminal episode. The blows were not clearly separate in time, and the evidence does not reflect a change in purpose, impulse, or provocation.
The State argues that the two convictions should not merge because Nicori "used two different instruments to perpetrate the two assaults," each assault constituted a "different sort of physical attack, " and Nicori's act of stomping on Andrew "substantially increased the degree of injury to which Andrew was exposed." The State discusses two cases in support of its argument, but the facts of neither case resemble the facts at hand.
Jordan v. State, 2001 WL1143310, at *2 (Alaska App. Sept. 26, 2001) (unpublished).
In Jordan v. State, the defendant kicked his wife in the head and then picked up a beaver snare and used it to choke her. In our unpublished opinion, we agreed with the superior court that "this renewed assault with the snare could properly support a separate criminal conviction and sentence." In Nielsen v. State, the defendant ordered the victim out of the car in which they were both riding, shot him in the leg, ordered the victim back in the car, and then "a short time later," used a knife to cut the victim's throat and neck. The supreme court concluded that the shooting and throat cutting were clearly two separate offenses.
Jordan, 2001 WL 1143310, at *l.
Id. at *3.
Nielsen v. State, 627 P.2d 1077, 1080 (Alaska 1981).
Id.
Thus, in both cases cited by the State, the defendant renewed an assault after stopping to produce a dangerous weapon. Meanwhile, we have concluded that only one assault occurred under facts similar to this case. In Miller v. State, the defendant strangled the victim and then stood with his foot on her chest such that his foot caused injury. We concluded that this conduct constituted one assaultive act. Miller is controlling in this case.
Miller v. State, 312 P.3d 1112, 1116-18 (Alaska App. 2013).
Id.; see also Mill v. State, 585 P.2d 546, 551-52 (Alaska 1978) (finding one assault when the defendant: (1) pointed a rifle at the victim through a cabin window and ordered him to come outside, then (2) shot the victim in the leg, and then (3) stood over the victim and threatened him with the rifle until the victim wrote the defendant a check); Andrew v. State, 2018 WL 1136368, at *3-5 (Alaska App. Feb. 28, 2018) (unpublished) (finding one assault when the defendant: (1) choked his girlfriend, then (2) pushed her head into their washing machine with her face under the running water, and then (3) after she escaped, chased her outside and threw her to the ground).
Accordingly, we reverse the decision of the superior court not to merge the two convictions for assault against Andrew. On remand, the superior court should enter one conviction for first-degree assault and resentence Nicori.
Sentencing for the assault conviction involving Allen Nicori
As explained above, the State charged Nicori with one count of second-degree assault and one count of third-degree assault for his conduct against Allen Nicori. The testimony at trial reflected that, prior to assaulting Andrew, Nicori fought with Allen Nicori. At one point, Nicori bit off the tip of Allen Nicori's middle finger and also caused visible discoloration and swelling to his face and head.
In closing arguments, the prosecutor asserted that the third-degree assault charge was for the bruises to the face and head and that the second-degree assault charge (which required a showing of serious physical injury) was for the biting of the finger. The jury convicted Nicori of third-degree assault but acquitted him of second-degree assault.
Compare AS 11.41.220(a)(5) (defining third-degree assault, in part, as committing a crime in violation of AS 11.41.230(a)(1) or (2) - "recklessly caus[ing] physical injury to another person" or "with criminal negligence caus[ing] physical injury to another person by means of a dangerous instrument") with AS 11.41.210(a)(2) (defining second-degree assault as "recklessly caus[ing] serious physical injury to another person").
At sentencing, Nicori proposed the mitigating factor that he acted with serious provocation from the victim. The superior court rejected this mitigator, and sentenced Nicori to 4 years with 2 years suspended (2 years to serve) for the third-degree assault conviction.
AS 12.55.155(d)(6).
In rejecting the proposed mitigator and in passing sentence, the superior court discussed the seriousness of the injury to Allen Nicori - that Allen Nicori had permanently lost part of his finger.
On appeal, Nicori argues that the court erred in focusing on the injury to Allen Nicori's finger because Nicori was acquitted of the second-degree assault charge for causing serious physical injury by biting off part of the finger. Nicori acknowledges that a sentencing court may consider conduct for which the defendant was acquitted when passing sentence on a conviction. But he argues that the superior court, in this case, did more than that and, in fact, the court "imposed sentence solely based on [the] conduct" for which Nicori was acquitted.
See, e.g., Brakes v. State, 796 P.2d 1368, 1372 (Alaska App. 1990) (holding that a sentencing court can consider conduct for which the defendant was acquitted when based on "information that is verified in the record" in part because of the "differing burdens of proof' at sentencing and at trial).
But, as we have explained, "multiple blows struck in the course of a single, continuous criminal episode" constitute one assault. Nicori bit his brother's finger while he was fighting with him. Thus, even though the State charged Nicori with separate counts of assault for the injury to the finger and for the other injuries, if the jury had found him guilty on both counts, Nicori would have been entitled to have those convictions merged. In sentencing Nicori for the third-degree assault conviction, the superior court could properly consider the undisputed permanent damage to Allen Nicori's finger. We therefore affirm the sentence imposed for the third-degree assault conviction involving Allen Nicori.
S.R.D. v. State, 820 P.2d 1088, 1092 (Alaska App. 1991).
See Miller v. State, 312 P.3d 1112, 1116-18 (Alaska App. 2013).
Probation condition and presentence report
The author of the presentence report proposed general and special probation conditions for Nicori. One of these proposed conditions prohibited Nicori from having contact with either John Andrew Jr. or Allen Nicori unless first approved by his probation officer. Nicori objected to the proposed prohibition of contact with Allen Nicori, and the superior court orally agreed to change the condition so that only contact with Andrew was prohibited. Nevertheless, the written judgment sets forth the condition as it was proposed, banning contact with both Andrew and Allen Nicori unless approved.
On appeal, Nicori argues that this was error, and the State agrees. We conclude that the State's concession of error is well-founded. On remand, the superior court should correct the written judgment to reflect its oral ruling that Nicori is not prohibited from having contact with Allen Nicori.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently assess whether a concession of error is supported by the record and has legal foundation).
See Graybill v. State, 822 P.2d 1386, 1388 (Alaska App. 1991) ("Where, as here, a conflict exists between an orally imposed sentence and a subsequently issued written judgment, it is well settled that the oral pronouncement of sentence must govern.").
The presentence report also contained an allegation, made by Andrew to a trooper, that he had previously witnessed Nicori commit a crime against two children. Nicori requested that the court strike this statement from the presentence report. The State did not produce any corroboration of this allegation, but the superior court did not strike the statement from the presentence report.
Again, Nicori appeals, and the State concedes error. This concession is well-founded. On remand, the superior court shall strike this allegation from the presentence report.
See Alaska R. Crim. P. 32.1(f)(5) ("The court shall enter findings regarding any disputed assertion in the presentence report. Any assertion that has not been proved shall be deleted from the report; any assertion that has been proved only in part shall be modified in the report."); Nukapigak v. State, 562 P.2d 697, 701 (Alaska 1977) ("[T]he sentencing judge should be entitled to consider verified instances of past anti-social behavior, even though the defendant was not convicted or even charged with the same." (Emphasis added.)); Smith v. State, 369 P.3d 555, 560 (Alaska App. 2016) (Suddock, J., concurring) ("Thus, under Rule 32.1(f)(5), read together with the holding of Nukapigak, the court must redact or reject any challenged allegation if 1) the court finds that it rests on unverified hearsay, 2) the court finds the allegation, hearsay or non-hearsay, to be unproven after the defense has met its burden of providing testimonial evidence or its equivalent, or 3) the judge determines that the allegation is not relevant to sentencing or otherwise elects not to rely upon it.").
Conclusion
We REVERSE the superior court's decision not to merge the first-degree and third-degree assault convictions for conduct against Andrew, and we REMAND this case to the superior court to enter one conviction for first-degree assault and to resentence Nicori. On remand, the superior court shall correct the written judgment to comport with its oral ruling that Nicori may have contact with Allen Nicori. The superior court shall also strike the challenged allegation from the presentence report.
In all other respects, we AFFIRM the judgment of the superior court.