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State v. Nicori

Court of Appeals of Alaska

November 3, 2017

STATE OF ALASKA, Petitioner,
v.
PETER G. NICORI and WINIFRED OLICK, Respondents.

         Petition for Review from the Superior Court Trial Court Nos. 4BE-16-547 CR & 4BE-16-749 CR, Fourth Judicial District, Bethel, Dwayne W. McConnell, Judge.

          Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Petitioner.

          Laurence Blakely, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Respondent Nicori. No appearance for Respondent Olick.

          Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. [*]

          OPINION

          MANNHEIMER, Judge

          The State of Alaska has petitioned this Court to review and reverse two decisions of the superior court: (1) the court's decision to require the prosecuting attorney to attend and testify at an evidentiary hearing to investigate whether the current criminal charges against Peter G. Nicori and Winifred Olick are the result of actual prosecutorial vindictiveness, and (2) the court's refusal to allow the State to seek reconsideration of this decision.

         Respondent Peter Nicori has filed a cross-petition (File No. A-12886) in which he asserts that he has already presented a prima facie case of the appearance of prosecutorial vindictiveness, and that the superior court should therefore be placing the burden on the State to affirmatively disprove this charge of vindictiveness.

         For the reasons explained in this opinion, we GRANT the State's petition on the second question presented by the State. We hold that the superior court should have allowed the State to seek reconsideration of the court's decision to hold the evidentiary hearing and to require the prosecutor to testify.

         Because we are directing the superior court to allow the State to pursue its motion for reconsideration, we need not reach the first question presented in the State's petition - because, now that a motion for reconsideration is pending, the superior court has not yet issued a final order on the question of whether to require the prosecutor to testify at the evidentiary hearing.

         With regard to the question presented in Nicori's cross-petition, the cross-petition is DENIED.

         The procedural history of this litigation

         The controversy in this case arose when the State re-indicted Nicori and Olick on more serious charges the day after the two defendants filed a request for discovery. The defendants then filed a motion asserting that the timing of the reindictment created the appearance of prosecutorial vindictiveness.

         The superior court initially found that the defendants had set forth aprima facie case of vindictive prosecution, and the court therefore scheduled an evidentiary hearing to give the State an opportunity to affirmatively rebut this presumed vindictiveness.

         After the defense subpoenaed the prosecuting attorney to testify at this hearing, the State asked the superior court to reconsider its decision, and the court granted the State's request. On reconsideration, the court reversed itself and declared that ...


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