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Nicoli v. State4/2/2003
In the summer of 2001, Paul Nicoli, Jr., was on probation from a conviction for assaulting his ex-wife, Cynthia Olson. Nicoli had already violated his conditions of probation once, by improperly contacting Olson. This improper contact led to a probation revocation hearing. At the revocation hearing (in February 2001), District Court Judge Stephanie Rhoades ordered Nicoli to have no further contact "whatsoever" with Olson. The judge explained to Nicoli that this meant he could have no contact with Olson even if Olson consented to the contact.
In May 2001 (i.e., about three months after the revocation hearing), Nicoli again contacted Olson in her village of Ekwok. This time, he was charged with a separate crime for doing so: first-degree unlawful contact, AS 11.56.750. As one of Nicoli's conditions of bail release in this second criminal case, Deputy Magistrate Cindy Roque ordered Nicoli to have no contact with Olson unless Olson informed the court in writing that she consented to the contact. Olson promptly faxed a letter to the magistrate declaring that she wished to have contact with Nicoli.
Two months later, Nicoli was again in Ekwok. He assaulted Juanita Nelson on July 21st. The next day, when the village public safety officer and a state trooper went to arrest Nicoli, they found him at Olson's house. Ultimately, Nicoli was convicted both of assaulting Nelson and of unlawfully contacting Olson (in violation of the condition of probation imposed by Judge Rhoades).
Nicoli now appeals these convictions. He argues that, as a matter of law, Deputy Magistrate Roque's bail condition (that Nicoli should have no contact with Olson unless she consented) superseded the condition of probation imposed by Judge Rhoades (that Nicoli should have no contact whatsoever with Olson, regardless of whether she consented). Nicoli also contends that his trial judge, Superior Court Judge Donald D. Hopwood, improperly prevented Nicoli's attorney from arguing that the jury could infer Nicoli's innocence from the fact that Nicoli rejected a proposed plea bargain offered by the State. Finally, Nicoli challenges one of the provisions of his sentence: a condition of probation that forbids Nicoli from returning to Ekwok except for the purpose of visiting his children.
For the reasons explained here, we conclude (1) that the bail conditions imposed in Nicoli's second criminal case did not abrogate Nicoli's conditions of probation from the first criminal case; (2) that Judge Hopwood properly prevented the defense attorney from asking the jurors to draw an inference of innocence from the fact that Nicoli rejected a proposed plea bargain; and (3) that, given the facts of this case, Judge Hopwood could reasonably forbid Nicoli from returning to Ekwok except to visit his children.
Whether the bail condition imposed by Deputy Magistrate Roque in the second criminal case superseded the condition of probation imposed by Judge Rhoades in the first criminal case
Nicoli contends that, "as a matter of law", Deputy Magistrate Roque's bail order in the second criminal case effected a modification of the conditions of probation imposed by Judge Rhoades in Nicoli's first criminal case. Nicoli notes that, under AS 12.55.090(b), a sentencing court retains the authority to modify the conditions of a defendant's probation throughout the term of probation.
But Deputy Magistrate Roque was not the sentencing judge in Nicoli's first criminal case, nor did she purport to modify Nicoli's terms of probation. Rather, she issued a bail order in a separate case. It is true that the terms of this bail order were more lenient than the terms of Nicoli's probation, but Nicoli re
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