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Simmons v. State (2/13/2015) ap-2442

Simmons v. State (2/13/2015) ap-2442

                                                                    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.us
  



                     IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



MIKOS C. SIMMONS,  

                                                                                        Court of Appeals No. A-12147   

                                              Appellant,                              Trial Court No. 3AN-12-654 CR  



                                   v.  

                                                                                                   O  P  I  N  I  O  N 

STATE OF ALASKA,  



                                              Appellee.                                 No. 2442 - February 13, 2015  



                            il Appeal from  the  Superior Court, Third Judicial District,  

                       Ba                                     

                       Anchorage, Paul E. Olson, Judge.  



                       Appearances:                 Vikram         N.     Chaobal,          Anchorage,             for    the  

                       Appellant. Ann B. Black, Assistant Attorney General, Office of  

                                                                                                   

                       Special Prosecutions and  Appeals, Anchorage, and  Craig  W.  

                                                                                                         

                       Richards, Attorney General, Juneau, for the Appellee.  



                       Before:  Mannheimer, Chief Judge, and Allard, Judge.  



                       Judge MANNHEIMER.  



                       Mikos C. Simmons asks this Court to review the superior court's refusal to   



set conditions of bail pending appeal.   The State has announced that it does not oppose  



Simmons's bail release, "so long as appropriate conditions of release are [imposed]".  In  



other words, the parties agree that we should remand this case to the superior court for                      



the setting of bail.  


----------------------- Page 2-----------------------

                    We have concluded that, rather than simply issuing an unpublished order   



resolving this bail appeal, we should instead employ a published opinion to explain our     



decision in this case - because our review of the record shows that the superior court's   



handling of the bail issue departed substantially from the procedures and substantive law  



that govern post-conviction bail.   



                     Following a jury trial, Simmons was convicted of fourth-degree controlled  



substance misconduct, and the superior court sentenced him to 42 months' imprisonment  

                                                             



with 12 months suspended (i.e., 30 months to serve).  



                     Right after the superior court imposed this sentence, Simmons's attorney  

                                                                                                       



asked the court to stay the sentence for 30 days, to give Simmons time to perfect an  



appeal.    The  defense  attorney  pointed  out  that  Simmons  had  been  on  bail  release  

                                                                                             



(apparently, without incident) for approximately 2- years before sentencing, and the  

defense attorney also pointed out that Simmons had 30 days to file an appeal. 1  

                                                                                                                           



                                                                                                          

                    When the sentencing judge asked the prosecutor for the State's position on  



Simmons's request, the prosecutor told the judge that he did not oppose the stay.  



                     In response, the sentencing judge declared that "[his] policy has always  



been that, once a person is sentenced, ... they should be remanded [to custody] and start  

                                                               



serving their time."  The judge added that "if [a defendant is] entitled to [a] stay of the  

                                                                                                



sentence for whatever reason, then that [stay] should be obtained from the Court of  



Appeals."  



                     The judge then told the parties that he would grant the requested stay if -  

                                                                                          



and only if - the prosecutor stipulated that Simmons was entitled to bail release under  

                                                                    



the provisions of AS 12.30.040(a) (the statute that governs post-conviction bail).  The  



prosecutor replied, "I wouldn't say I'm stipulating to it.  I'm saying [that] I'm not going  

                                                                                                                 



to argue [against it]."  



     1    See Alaska Appellate Rule 204(a)(1).  



                                                               - 2 -                                                             2442  


----------------------- Page 3-----------------------

                      The prosecutor's answer did not satisfy the sentencing judge, and the judge     



pressed the prosecutor to declare whether he affirmatively stipulated to Simmons's bail     



release:  



                        

                                  The Court: [to the prosecutor] I want a clear position   

                      from you, Counsel.   If you've made that agreement with [the     

                      defense  attorney],  and  that's  what  he's  depending  upon,  

                      [then] I'm going with it.  Otherwise, [Simmons] is going to  

                      be remanded [to custody].  I leave that up to you, and your  

                      relationship  with  [the  defense  attorney],  and  what  you've  

                      agreed.   



                      [A whispered conversation occurs between the attorneys.]  



                                                        

                                 Prosecutor : The State does not stipulate to the release.  



                                  The Court:  Then I'm going to have him remanded.  



                      The judge's handling of this matter violated AS 12.30.040(a).  Under the  



                                                            

provisions of this statute, Simmons is entitled to be released on bail pending appeal if he  



"establishes, by clear and convincing evidence, that [he] can be released under conditions  



that will reasonably assure [his] appearance ... and the safety of ... other persons ... and  

                                                                               



the community."   



                      But rather than listening to Simmons's arguments regarding bail release,  



the judge declared that he would remand Simmons to custody unless the prosecutor  



stipulated that Simmons should be released on bail.  In other words, the judge effectively  

                                                                                                    



granted the prosecutor unilateral power to decide whether Simmons should be released  

                                                        



or jailed - regardless of the merits of Simmons's arguments in favor of bail release.  



This was unlawful.  



                                                                    - 3 -                                                               2442
  


----------------------- Page 4-----------------------

          Conclusion  



                    The superior court's decision to deny post-conviction bail to Simmons is  

                                                                                                         



REVERSED.  We direct the superior court to consider, pursuant to the provisions of  

                                                                                                           



AS  12.30.040(a), whether one or more conditions of release will assure  Simmons's  

                                                                                                        



continued appearance and the safety of the public.  We further direct the superior court  

                                                                              



to take into consideration the State's position that bail release is appropriate in this case.  

                                                                                              



                                                              - 4 -                                                          2442
  

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