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Bowlin v. State (1/15/2016) ap-2484

Bowlin v. State (1/15/2016) ap-2484

                                                              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
  

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                    IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



WILBERT PAUL BOWLIN,  

                                                                                Court of Appeals No. A-11465  

                                          Appellant,                          Trial Court No. 3KN-11-2021 CR  



                                v.  

                                                                                             O P I N I O N  

STATE OF ALASKA,  



                                          Appellee.                              No. 2484 - January 15, 2016  



                                          

                     Appeal from the Superior Court, Third Judicial District, Kenai,  

                     Charles T. Huguelet, Judge.  



                     Appearances: Tracey Wollenberg, Assistant Public Defender,  

                                                        

                     and Quinlan Steiner, Public Defender, Alaska Public Defender  

                     Agency,  Anchorage,  for  the  Appellant.                        Eric  A.  Ringsmuth,  

                                                                                      

                     Assistant   Attorney  General,   Office   of   Criminal   Appeals,  

                                                                                       

                     Anchorage, and Craig W. Richards, Attorney General, Juneau,  

                     for the Appellee.  



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

                                                                  

                     District Court Judge. *  

                                                         



                     Judge ALLARD.  



                     Wilbert Paul Bowlin was convicted of second-degree assault, a class B                                    



felony, following an altercation with his wife.                             Bowlin appealed his conviction to this                   



     *     Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  



Constitution and Administrative Rule 24(d).  


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

Court, and he asked the superior court to release him on bail pending resolution of that                                                                                                                                                                                                                



appeal.   



                                                The superior court denied Bowlin's request for a bail hearing, concluding                                                                                                                                                     



that Bowlin was ineligible for bail release under AS 12.30.040(b)(3) because he had a                                                                                                                                                                    



prior   felony   conviction   within   ten   years   of   his   conviction   in   this   case.     Under  



AS 12.30.040(b)(3), a person is ineligible for bail pending appeal "if the person has been                                                                                                                                                                                                           



convicted of an offense that is ... a class B felony [and] the person has been convicted                                                                                                                                                                                           



within the previous 10 years of a felony."                                                                           



                                                Bowlin argues that the superior court erred in denying his request for a bail                                                                                                                                                                        



hearing.    He   argues   that   the   ten-year   look   back   in   AS   12.30.040(b)(3)   should   be  



calculated from the date he filed his motion for bail release - not from the date of his                                                                                                                                                                                                                   



conviction of a class B felony.                                                                                



                                                The bail statute does not explain what precisely the legislature meant by                                                                                                                                                                                    



"within the previous 10 years."                                                                                  We conclude - after reading the statute in a common-                                                                                                            



sense manner, with an eye to the legislature's purpose in enacting the statute - that the                                                                                                                                                                                                                  



legislature   intended   the   ten-year   look   back   to   be   calculated   from   the   date   of   the  

defendant's conviction of a class B felony.                                                                                                               1  



                                                                                                                                                                                                                                                                                                       

                                                Prior to 2010, a defendant convicted of a class B or class C felony was  



                                                                                                                                                                                                                                                                                                    

ineligible for release pending appeal if the defendant had a certain type of serious prior  



                                                                                                                                                                                                                                                                                                

felony conviction (i.e., a stalking conviction or an unclassified, class A , or sexual felony  



             1          See Nelson v. Anchorage, 267 P.3d 636, 639 (Alaska 2011) (explaining that Alaska  



courts interpret statutes "according to reason, practicality, and common sense, considering  

                                                                                                                                                                                                        

the meaning of the statute's language, its legislative history, and its purpose").  



                                                                                                                                                   - 2 -                                                                                                                                         2484
  


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

                                                                                                2                                          3  

conviction), regardless of the date of the prior conviction.                                       But in     Bourdon v. State            ,  we  



ruled that this portion of the bail statute violated equal protection because it made any                       



defendant convicted                  of a class B or             class  C   felony  who   had a prior                      sexual felony   



conviction ineligible for bail release, while a defendant with a                                             current   sexual felony   



                                                                   4  

                                                                                                                                              

conviction was entitled to apply for bail.                           Because we could discern no rational basis for  



                                                                                                5  

                                                                                     

this distinction, we invalidated that portion of the statute. 



                                                                                                                                      

                       In  2010,  as  part  of  a  larger  bill  aimed  at  streamlining  bail  release  



                                                                                                                                               

procedures, the Alaska Legislature rewrote this portion of the bail statute, in part to  



                                                                  6  

                                                                                                                                

address  our  equal  protection  concern.                              The  2010  amendment  made  all  defendants  



                                                                                                                                               

convicted of a sexual felony ineligible for bail release, and redefined the category of  



                                                                                                                                              

class B felony offenders ineligible for bail release to include those "convicted within the  



                                                           7  

                                              

previous 10 years of [any] felony." 



                                                                                                                                 

                      As wejust noted, the legislature did not specify what it meantby "convicted  



                                                                                                                                            

within  the  previous  10  years."                         But  the  legislative  history  demonstrates  that  the  



                                                                                                                                             

legislature's purpose in revising AS 12.30.040(b)(3) was to protect victims and the  



                                                                                                                                        

public  from  defendants  who  demonstrated  a  certain  level  of  dangerousness,  while  



                                                                                                                    8 

                                                                                                                                             

protecting the right of other less dangerous offenders to bail release.   To that end, the  



      2    Former AS 12.30.040(b)(2) (pre-July 1, 2010 version).  



      3    28 P.3d 319 (Alaska App. 2001).  



      4    Id . at 323.  



      5    Id .  



      6    See Sectional Analysis of Proposed Legislation (H.B. 324) at 5, available at  



http://www.legis.state.ak.us/basis/get_documents.asp?session=26&docid=6498.  



      7    AS 12.30.040(b)(3).  



      8    See, e.g., Sectional Analysis of  Proposed Legislation (H.B. 324);   House Judiciary  



                                                                                                                            (continued...)  



                                                                     - 3 -                                                               2484
  


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

legislature determined that a person convicted of a class B felony who had a prior felony                                                                                                                                                                                                                                                                                             



 conviction within ten years was sufficiently dangerous to be ineligible for release on bail.                                                                                                                                                                                                                                                                                                                           



                                                              Nothing in the legislative history of AS 12.40.030(b)(3) suggests that the                                                                                                                                                                                                                                                             



legislature   believed   these   offenders   would   become   less   dangerous   during   their  



incarceration pending appeal, such that they should become eligible for bail release if                                                                                                                                                                                                                                                                                                                     



they passed the ten-year anniversary of their prior conviction while incarcerated.  Nor                                                                                                                                                                                                          



do we think this result would be compatible with the legislature's intent to protect the                                                                                                                                                                                                                                                            



public and                                           victims from offenders                                                                                                the legislature had                                                                         deemed too                                                  dangerous to                                                       be  



released on bail because of their recidivism and the seriousness of their offenses.                                                                                                                                                                                                                                                            



                                                               Bowlin argues that basing a legislative determination of dangerousness on                                                                                                                                                                                                                                                                



the length of time between the defendant's felony convictions is arbitrary because the                                                                                                                                                                                                                                                                                                               



date a defendant is convicted will often hinge on factors outside the defendant's control                                                                                                                                                                                                                                                                                         



-   such as the availability of a witness.                                                                                                                                                     We concede that the line the legislature has                                                                                                                                                       



drawn is to some extent arbitrary, and that under AS 12.30.040(b)(3) some dangerous   



 felons might be eligible for a bail hearing while other less dangerous offenders are not.                                                                                                                                                                                                                                                                                                                              



But this circumstance does not render the statute unconstitutionally arbitrary; as our                                                                                                                                                                                                                                                                                                            



 supreme court has emphasized, the constitution does not demand perfect legislative                                                                                                                                                                                                                                                                               

 classifications, only a "reasonable nexus between legislative means and ends."                                                                                                                                                                                                                                                                                                 9  



                                                                                                                                                                                                                                                                                                                                                               

                                                               Moreover,  this  arbitrariness  would  not  be  cured  if  the  legislative  



                                                                                                                                                                                                                                                                                                                                                                             

determination  of  dangerousness  hinged  instead  on  whether  ten  years  had  elapsed  



                                                                                                                                                                                                                                                                                                                                                                                             

between the defendant's prior conviction and the defendant's application for bail.  Nor,  



                8               (...continued)  



Committee hearing on H.B. 324 (Mar. 19 and Mar. 22, 2010); House Finance Committee  

hearing on H.B. 324 (Apr. 12, 2010); Senate Judiciary Committee hearing on H.B. 324 (Apr.  

                                                                                                                                                                                                                                              

 15, 2010).  



                9              Rose v. Commercial Fisheries Entry Com'n, 647 P.2d 154, 160 (Alaska 1982).  



                                                                                                                                                                                               - 4 -                                                                                                                                                                                   2484
  


----------------------- Page 5-----------------------

 as we just explained, have we found anything in the language or history of the bail                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     



 statute suggesting that this is what the legislature intended.                                                                                                                                                                                                                                                                               



                                                                                         We therefore AFFIRM the superior court's decision denying Bowlin's                                                                                                                                                                                                                                                                                                                                                                          



request for a bail hearing.                                                                                           



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