NOTICE

The text of this opinion can be corrected before the opinion is published in the Pacific Reporter. Readers are encouraged to bring typographical or other formal errors to the attention of the Clerk of the Appellate Courts:

303 K Street, Anchorage, Alaska 99501 Fax: (907) 264-0878 E-mail: corrections@akcourts.gov

IN THE COURT OF APPEALS OF THE STATE OF ALASKA

FRED MICHAEL ESGUERRA JR.,
Petitioner,

v.
STATE OF ALASKA,
Respondent. Court of Appeals No. A -13819 Trial Court No. 3AN- 19 -04854 CR

O P I N I O N

No. 2754

— August 18, 2023

Petition for Review from the Superior Court, Third Judicial District, Anchorage, Erin B. Marston, Judge.
Appearances: Melissa H. Goldstein and Julia Bedell, Assistant Public Defenders, and Samantha Cherot, Public Defender
, Anchorage, for the Petitioner. Kenneth M. Rosenstein, Assistant Attorney General, Office of Criminal Appeals
, Anchorage, and Treg R. Taylor, Attorney Genera l, Juneau, for the Respondent.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
Judge ALLARD, writing for the Court. Judge HARBISON, concurring

.– 2

– 2754 In 2002, Fred Michael Esguerra Jr. was convicted of two counts of first

degree sexual abuse of a minor and one count of attempted first

- degree sexual abuse of
a minor. 1 Esguerra was later released on probation.

In October 2018, the State filed a petition to revok e Esguerra’s probation on three separate grounds . Esguerra testified at the probation revocation hearing and
denied a number of the State’s factual claims. After Esguerra testified, t he State, believing that Esguerra had lied on the witness stand , added a fourth violation to the petition: that Esguerra had just committed perjury. The court found that the State had proven two of the claimed probation violations by a preponderance of the evidence, but found that the State had not proven the other two, includi ng the allegation of perjury.

Several months later, the State indicted Esguerra on eleven counts of perjury based on his testimony at t he probation revocation hearing. Esguerra moved to dismiss the indictment, arguing that because the State had failed to prove the perjury allegation in the probation revocation proceeding, it was barred from pursuing that allegation in a subsequent criminal proceeding by the doctrines of res judicata ( i.e. , claim preclusion) and collateral estoppel ( i.e. , issue preclusion)

. The superior court denied Esguerra’s request, and Esguerra petitioned this Court for review , which we granted

. We now affirm the superior court’s denial of Esguerra’s motion to dismiss
the indictment

.

The State’s prosecution of Esguerra is not precluded by res judicata or collateral estoppel This petition requires us to address whether the doctrines of res judicata and collateral estoppel preclude the State from pursuing criminal charges when the State

1 AS 11.41.434(a)(1) and AS 11.41.434(a)(1) & A S 11.31.100(a), respectively.– 3

– 2754

failed to prove those same charges in a pro bation revocation proceeding alleging that the defendant engaged in new criminal conduct

.

The doctrine of res judicata, also called claim preclusion, “prevents a party from suing on a claim which has been previously litigated to a final judgment by that party

. . . and precludes the assertion by such parties of any legal theory, cause of action,
or defense which could have been asserted in that action .” 2 This doctrine does not apply
here because the State could not pursue its current “cause of actio n”

— i.e. , its criminal prosecution of Esguerra

— through a petition to revoke probation.

But the doctrine of collateral estoppel, also called issue preclusion, presents a more difficult question. Collateral estoppel “bars the relitigation of issues
actual ly determined in [earlier] proceedings .” 3 It requires four elements:

(1) the party against whom the preclusion is employed was a party to or in privity with a party to the first action; (2) the issue precluded from relitigation is identical to the issue decided in the first action; (3) the issue was resolved by the first action by a final judgment on the merits; and (4) the determination of the issue was essential to the final judgment. [ 4 ] We find persuasive the California Supreme Court ’s analysis of thi s issue
in Lucido v. Superior Court

. 5 The California Supreme Court acknowledged that the technical elements of collateral estoppel will often be met when the government seeks to file criminal charges based on alleged probation violations that it previousl y failed to

2 McElroy v. Kennedy , 74 P.3d 903, 906 (Alaska 2003) ( alteration in original) (emphasis added) (quoting Dixon v. Pouncy , 979 P.2d 520, 523 (Alaska 1999)).

3 Sykes v. Lawless , 474 P.3d 636, 643 (Alaska 2020) (alteration in original) (quoting Latham v. Palin , 251 P.3d 341, 344 (Alaska 2011)).

4 Id. (quoting Latham
, 251 P.3d at 344 ).

5 Lucido v. Superior Court , 795 P.2d 1223 (Cal. 1990).– 4

– 2754

prove , but the court went on to hold that the public policies underlying the doctrine of collateral estoppel would not be served by applying it to this context

.

Lucido explained that there are three core public policies underlying
collateral estoppel: preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation. 6

With respect to the integrity of the judicial system, the court acknowledged that “[p]ub lic confidence in the integrity of the judicial system is
threatened whenever two tribunals render inconsistent verdicts.” 7 But the court concluded that eliminating this potential inconsistency by displacing full determination
of factual issues in crimina l trials would have an even greater effect on public
confidence in the judiciary

. 8

As the Lucido court explained
, “ P robation revocation hearings and
criminal trial s serve different public interests.” 9 The role of the judge in a probation revocation proce eding is “not to determine whether the probationer is guilty or innocent of a crime,” but only “whether a violation of the terms of probation has occurred and, if so, whether it would be appropriate to allow the probationer to continue to retain [their] co nditional liberty.” 10 The court further reasoned :

B ecause the limited nature of this inquiry may not involve or invoke presentation of all evidence bearing on the underlying factual allegations, the [government’s] failure to satisfy the lower burden of pro of at the revocation hearing

6 Id. at 1227.

7 Id

. at 1229.

8 Id.

9 Id.

10 Id. at 1230.– 5

– 2754 does not necessarily amount to an acquittal or demonstrate an inability to meet the higher criminal standard of proof. [ 11 ] In light of these differing purposes, the Lucido court concluded that “[p]reemption of trial of a new charge by a revocation decision designed to perform a wholly independent social and legal task would undermine the function of the criminal trial process as the intended forum for ultimate determinations as to guilt or innocence of newly alleged crimes.” 12

With respect to the promotion of judicial economy, the court acknowledged that applying collateral estoppel would potentially promote judicial economy in two ways: “it would reduce the number of court proceedings by precluding prosecution of issues determ ined adversely to the [government] at the revocation hearing [;] ” and “by increasing the already high stakes of the revocation hearing, it might encourage the [government] to prosecute first.” 13 But the court found that these concerns were insufficient to j ustify applying collateral estoppel, writing that “[w]hatever the efficiencies of applying collateral estoppel in this case, they pale before the importance of preserving the criminal trial process as the exclusive forum for determining guilt or innocence as to new crimes.” 14

With respect to the protection of litigants from harassment by vexatious litigation, the court explained that although application of collateral estoppel would prevent repetitive litigation, “[t]he essence of vexatiousness . . . is not mere repetition” but rather “harassment through baseless or unjustified litigation.” 15 As the court

11 Id.

12 Id. at 1230

- 31.

13 Id. at 1232.

14 Id

.

15 Id.– 6

– 2754

explained, it is generally “neither vexatious nor unfair for a probationer to be subjected to both a revocation hearing and a criminal trial” because “[ t]he public has a legitimate

ex pectation that a person once found guilty of a crime may both be held to the terms of [their] probation and (if deemed appropriate by the prosecution) tried anew for any offenses alleged to have been committed during the prob ationary period.” 16 The fact that the government failed to prevail at the revocation hearing “does not alone transform the otherwise permissible subsequent trial into harassment.” 17

For all these reasons, the California Supreme Court concluded that “[a]ppl ying collateral estoppel would unduly expand the designated function of the revocation hearing and undermine the public interest in determining criminal guilt and
innocence at criminal trials.” 18

Much like California, Alaska courts have repeatedly “ looked to the public polic ies underlying the doctrine [of collateral estoppel] before concluding that collateral estoppel should be applied in a particular setting.” 19 And w e agree with the California

16 Id

.

17 Id

.

18 Id

. at 1233.

19 Id. at 1226 ; s ee, e.g. , Burcina v. Ketchikan , 902 P.2d 817, 822 (Alaska 1995) (“We hold, based on public policy grounds, that a civil plaintiff is collaterally estopped from relitigating any element of a criminal charge to which [they have] pled nolo contendere .”); Lamb v. Anders on , 147 P.3d 736 , 74 2 (Alaska 2006) (applying the holding in Burcina to civil defendants) ; Jones v. State , 215 P.3d 1091, 1097 , 1100 (Alaska App. 2009) (explaining that Burcina , Lamb
, and similar cases were “based on policy considerations,” and noting that whether collateral estoppel applies involves “issues regarding the policies underlying the doctrine of issue preclusion ”) ; s ee also Bearden v. State Farm Fire & Cas. Co. , 299 P.3d 705, 713

- 15 (Alaska 2013) (addressing, and ultimately rejecting, appellant’ s policy arguments that application of collateral estoppel to his case was manifestly unfair); May v. State, Com

. Fisheries Entry Com m ’n , 168 P.3d 873, 883 (Alaska 2007) (declining to apply collateral estoppel against a state agency because it “would violate the flexibility that courts have traditionally given agencies to correct errors in order to properly implement policy”); State v. Uni ted Cook Inlet Drift Ass’n , 895 P.2d 947, 952 (Alaska– 7

– 2754

Supreme Court that those policies support refusing to apply co llateral estoppel to the situation presented here.

We also note that a t the time Lucido was decided in 1990, courts were roughly split on this question. Lucido cited five jurisdictions (Arizona, Florida, New York, Washington, and the Sixth Circuit) holding that collateral estoppel does not apply and three jurisdictions (Illinois, Oregon, and Texas) holding that it does. 20 But Lucido now firmly states the majority rule

. We count at least ten additional states ( Connecticut, Georgia, Maine, Massachusetts, Michigan, Mississippi, Rhode Island, Pennsylvania
, Vermont , and Wisconsin ) holding that collateral estoppel does not apply

. 21 And one of
the three states cited in Lucido as holding that collateral estoppel does apply (Texas) recently overtur ned its prior case law and joined the majority view

. 22

1995) ( holding that “sound policy justifications support the adoption by this court of a limited exception to the application of collateral estoppel a gainst the State on ‘unmixed questions of law’”); Ho lmberg v. State, Div. of Risk M gmt. , 796 P.2d 823, 824

- 27 (Alaska 1990) (addressing whether, on policy grounds, determinations of the Public Employees Retirement Board should generally be given preclusive effect, and only then addressing whether the condit ions of collateral estoppel were met in the specific case at issue); Palfy v. First Bank of Valdez , 471 P.2d 379, 384 (Alaska 1970) (explaining that “the policy of finality underlying res judicata and collateral estoppel must be tempered by our paramount

c oncern that a party be afforded [their] day in court”)

.

20 Lucido , 795 P.2d at 1228 (collecting cases)

.

21 State v. McDowell , 699 A.2d 987, 991 (Conn. 1997); Teague v. State , 312 S.E.2d 818, 820 (Ga. App. 1983) ( Teague was issued before Lucido , but is not cited in that case); State v. Reed , 686 A.2d 1067, 1069 (Me. 1996); Krochta v. Commonwealth , 711 N.E.2d 142, 144

- 45 (Mass. 1999); People v. Johnson , 477 N.W.2d 426, 429 (Mich. App. 1991); State v. Oliver , 856 So. 2d 328, 332 (Miss. 2003); State v. Gautier , 871 A.2d 347, 359 (R.I. 2005); Commonwealth v. Cosgrove , 629 A.2d 1007, 1011 (Pa. Super. 1993); State v. Brunet , 806 A.2d 1007, 1010

- 13 (Vt. 2002); State v. Terry , 620 N.W.2d 217, 222 (Wis. App. 2000).

22 State v. Waters , 560 S.W.3d 651 (Tex. Crim. App. 2018) (over ruling Ex parte Tarve r , 725 S.W.2d 195 (Tex. Crim

. App. 1986)).– 8

– 2754 For all the reasons stated above, we agree with the vast majority of courts
that have decided this issue that collateral estoppel does not apply to the situation at
issue here

. But although we conclude , after balancing all of the relevant policy considerations, that collateral estoppel should not be applied in this context, we take this time to remind the State that p ublic confidence in the integrity of the judicial system
is indeed undermined whenever two tribunals render inconsistent verdicts. 23 In his
concurrence in McCracken v. Corey , Justice Rabinowitz recommended that when the government intends to seek revocation of probation based on conduct constituting a crime, it should first determine whether it also intends to bring criminal charges. If it does not, the probation revocation proceeding should proceed; but if it does, the revocation proceeding should be suspended until after the outcome of the criminal prosecution. 24 As the con currence to this case correctly notes, h ad the State adopted that approach here, there would have been no risk of inconsistent verdicts, and thus no risk of undermining public confidence in the integrity of our judicial system.

Conclusion
We AFFIRM the superior court’s ruling denying Esguerra’s motion to dismiss and REMAND this case for further proceedings.

23 See Lucido , 795 P.2d at 1229.

24 McCracken v. Corey , 612 P.2d 990, 1000

- 01 (Alaska 1980) (Rabinowitz, J., concurring).– 9

– 2754

Judge HARBISON, concurring.

I agree with both the reasoning and the conclusion of the majority opinion in this case. However, I write separately to emphasize a legal premise that flows from today’s opinion and previous case law

— that when a defendant is faced with a probation revoca tion and a criminal charge based on the same alleged conduct, the defendant is entitled to have probation revocation proceedings postponed until after the underlying criminal charges are resolved.

The underpinnings of this point of law were first identifie d by the Alaska Supreme C ourt in a concurring opinion in State v. DeVoe

. 1 In that opinion, Justice Rabinowitz explained:

When the probation revocation proceeding is based upon alleged criminal conduct as to which the probationer’s innocence or guilt remains to be adjudicated in a criminal proceeding, there is the possibility of dilution of the probationer’s privilege against self

- incrimination, since at the criminal trial the prosecutor may be able to use evidence which the probationer presented in the probation revocation proceeding. Thus, in many situations “ . . . the defendant is confronted with the choice of either produc ing evidence at the revocation hearing and thus providing the state with incriminating evidence, or not producing evidence and thus foregoing a valuable defense. ” In my view this is a problem of some significance which calls for a solution. [ 2 ] Several y ears later, in McCracken v. Corey , the s upreme c ourt had occasion to offer a solution to the problem identified by the DeVoe concurrence. In
McCracken , the defendant faced a parole revocation and a criminal charge based on the same alleged conduct. 3 The s upreme court noted that holding the revocation hearing

1 State v. DeVoe , 560 P.2d 12, 1 5

- 17 (Alaska 1977) (Rabin owitz, J., concurring)

.

2 Id. at 16 (Rabinowitz, J., concurring) (citation omitted).

3 McCracken v. Corey , 612 P.2d 990, 991 (Alaska 1980).– 10

– 2754

before the criminal trial could “disrupt[] the maintenance of a ‘fair state

- individual balance’ at the criminal trial, where the burden of proving the guilt of the defendant must be shouldered entirely by the state.” 4 In addition, forcing the defendant to choose
between their right to defend the mself at the parole revocation hearing and their right
to remain silent with respect to their criminal trial
, while possibly not rising to the level of “compuls ion” prohibited by the Fifth Amendment
, posed an unfair dilemma which “runs counter to our historic aversion to cruelty reflected in the privilege against self

incrimination.” 5

The supreme court thus held that the “most desirable” method of resolving the problems of concurrent criminal and probation revocation proceedings is for the revocation proceedings “not even to be initiated” until after the disposition of the related
crimi nal proceedings

. 6 But the supreme court acknowledged that the State has an interest in initiating prompt revocation proceedings upon the occurrence of a criminal offense, and it ultimately stopped short of requiring a stay of the revocation proceeding
in every case. 7 The court instead held that, when a revocation hearing is conducted prior to a criminal trial for the same conduct, the State may not introduce any evidence or testimony that had been presented by the defendant at the revocation hearing in th e subsequent criminal proceeding , nor may it introduce the fruits of any such evidence or testimony. 8

4 Id. at 996 (citation omitted).

5 Id. (citation omitted).

6 Id. at 997 (citation omitted).

7 See Armstrong v. Tanaka , 228 P.3d 79, 83 (Alaska 2010) (noting that, in McCracken
, the supreme court “declined to require a stay of the revocation hearing”).

8 McCracken , 612 P.2d at 998.– 11

– 2754 Just as the supreme court’s McCracken decision did not announce a blanket prohibition on conducting a probation revocation hearing prior to a criminal

t rial, today’s opinion likewise does not prevent courts from proceeding in such a manner. However, today’s opinion relies heavily on a number of policy considerations which support the view, expressed in McCracken
, that revocation proceedings should
be cond ucted after the disposition of any criminal charges alleging the same conduct.

As noted by today’s majority opinion, such an approach reduces the risk of inconsistent verdicts and accordingly does much to uphold the integrity of the judicial system. Furthe rmore, if the court delays the probation revocation adjudication hearing until after the criminal charges are resolved, this preserves the criminal trial process as the forum for adjudicating crimes . This also promo tes judicial econom y because the allegation of new criminal conduct could be resolved conclusively by a jury’s guilty verdict, making it unnecessary for the State to present the evidence of this conduct a second time during the revocation proceedings. Lastly, this approach would almo st certainly result in more considered charging decisions and more careful presentation of evidence in probation revocation matters

— in contrast to the impromptu, and ultimately unsuccessful, charging decision that was made in this case.

Here, the prosec utor added a new count to the petition to revoke Esguerra’s probation, alleging that Esguerra had committed perjury, after the evidence had been presented in the case, during closing arguments. Under these circumstances, Esguerra certainly would have been entitled to have the court postpone adjudication of the new allegation unti l a later date, including until after the disposition of any underlying criminal charge. But the defense attorney did not ask to postpone the adjudication of the new allegation. Ins tead, the attorney acquiesced in submitting the matter to the judge for decision based on the evidence that had already been presented

— a tactic which proved to be advantageous to Esguerra, as was shown by the judge’s finding that the evidence was not suf ficient to support the perjury allegation.– 12

– 2754 The rationale of today’s decision , together with prior Alaska case law on this subject
, lead to the conclusion that the denial of a defendant’s request to continue a probation revocation hearing until the related criminal proceeding is resolved will almost always be an abuse of the court’s discretion. Thus, a probation revocation hearing will rarely, if ever, be adjudicated prior to the disposition of the underlying criminal charge, and the legal dilemma resolved b y the majority opinion today is unlikely to arise in future cases.