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Hamburg v. State (10/5/2018) ap-2618

Hamburg v. State (10/5/2018) ap-2618

                                                                                          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                                                                   



STEPHANIE  HAMBURG,  

                                                                                                                                                                    

                                                                                                                    Court of Appeals No. A-13165  

                                                                                                                                                                                    

                                                             Appellant,                                          Trial Court No. 3AN-17-8564 CR  



                                              v.  

                                                                                                                                   O  P  I  N  I  O  N  

                                                                                                                                                                     

STATE  OF  ALASKA,  



                                                             Appellee.                                                No. 2618 - October 5, 2018  

                                                                                                                                                                            



                               Appeal   from  the   Superior   Court,  Third  Judicial                                                               District,  

                                                                                                                                                    

                               Anchorage, Kevin M. Saxby, Judge.  

                                                                                              



                               Appearances:                       Kevin   W.   Coe,  Assistant  Public  Advocate,  

                                                                                                                                                 

                               Anchorage  Criminal  Defense  Section,  and  Chad Holt,  Public  

                                                                                                                                                         

                               Advocate, Anchorage, for the Appellant.   A. James  Klugman,  

                                                                                                                                                  

                               Assistant District Attorney, Anchorage,  and Jahna Lindemuth,  

                                                                                                                                               

                               Attorney General, Juneau, for the Appellee.  

                                                                                                                              



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

                                                                                                                                             

                               Judges.  

                                                



                               Judge MANNHEIMER.  

                                             



                               Stephanie   Hamburg   stands   charged   with   manslaughter   and   criminally  



negligent homicide stemming from the death of her two-year-old daughter, who died of                                                                                                             



severe iron deficiency anemia and congestive heart failure.                                                                          Hamburg's eligibility for bail                           



release is governed by the pre-2018 version of Alaska's bail statute, former AS 12.30.-                                                                                               


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011, and Hamburg currently remains in custody pursuant to a "no-bail" order that the  



                                                              

superior court issued under that statute.  



                                                                                                                                

                    Because Hamburg is charged with manslaughter (a class A felony), her bail  



                                                                                                                               

release is governed by subsection (d)(2) of the  statute.   This subsection declares that  



                                                                                                                               

when a criminal  defendant is charged with certain types of offenses,  including any  



                                                                                                                               

class A felony, there is a presumption that the defendant should not be released on bail  



                                                                                                                                 

-  or,  in  the  words  of  the  statute,  a  "rebuttable  presumption  that  no  condition  or  



                                                                                                                                 

combination of conditions will reasonably assure the appearance of the [defendant] or  



                                                                                            

the safety of the victim, other persons, or the community".  



                                                                                                                          

                    This  presumption  is  contrary  to  Article  I,  Section  11  of  the  Alaska  



                                                                                                                              

Constitution, "Rights of Accused".  This section of our state constitution guarantees that,  



                                                                                                                           

"in all criminal prosecutions", the accused "is entitled ... to be released on bail, except  



                                                                                                                

for capital offenses when the proof is evident or the presumption great".  



                                                                                                                                

                    The Alaska Supreme Court has declared that Article I, Section 11 does not  



                                                                                                                              

literally mean that all criminal defendants are entitled  to  be  "released" on bail.                                         But  



                                                                                                                              

section 11 (in conjunction with section 12, the provision that prohibits excessive bail)  



                                                                                                                      

guarantees that the court must set reasonable conditions of bail release for a defendant  



                                                                                                                                     

who has not yet been convicted. Martin v. State, 517 P.2d 1389, 1393-95 (Alaska 1974).  



                                                                                                                                

                     See also Gilbert v. State, 540 P.2d 485, 485-86 (Alaska 1975), where the  



                                                                                                                                  

supreme court declared that "[Martin] held that an order denying bail to one accused of  



                                                                                                                              

a  crime,  but  not  yet  convicted,  was  in  violation  of  Article  I,  Section  11  of  the  



                                                         

Constitution of the State of Alaska".  



                                                                                                                                      

                    The Martin decision involved the 1967 amendments to Alaska's bail law.  



                                                                                                                        

The  State  argued  that  these  1967  amendments  allowed  a  court  to  hold  a  criminal  



                                                                                                                             

defendant without bail if the court found that, no matter what conditions of bail were  



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imposed,  the defendant would continue to "pose a  danger to other persons and the  



                                          

community."  Id.  at 1396.  



                                                                                                                                 

                     The supreme court rejected the State's interpretation, concludingthat it was  



                                                                                                                                

inconsistent with the statutory scheme as a whole.   Id.  at 1396-97.                                         However,  the  



                                                                                                                                  

supreme court added that even if the legislature had intended to allow defendants to be  



                                                                                                                                

held without bail,  such a statute  would have violated the constitutional right of bail  



                                                                                                           

guaranteed by Article I, Section 11 of the Alaska Constitution.  Ibid.  



                       

                                                                                                               

                               Our  study  of  Article  I,   section  11  ...  compels  a  

                                                                                                       

                     conclusion  that   the  Alaska  Constitution  without   doubt  

                                                                                                              

                     guarantees to every accused person the right to be released on  

                                                                                                              

                     bail except for capital offenses where the proof is evident or  

                                                                                                            

                     the presumption great.   Some jurisdictions with similar bail  

                                                                                                          

                     provisions   have   created   an   implied   limitation   on   this  

                                                                                                   

                     constitutional right.  But in Alaska such an implied limitation  

                                                                                                            

                     would necessarily contravene both the plain language of this  

                                                                                                              

                     constitutional provision and its intended purpose as stated at  

                                                 

                     the constitutional convention.  



                                 

Martin, 517 P.2d at 1394.  



                                                                                                                                

                     The 2017 version of AS 12.30.011(d)(2) - the statute at issue in  the  



                                                                                                                                 

present case - establishes  a  presumption that, when a court is asked to set bail for  



                                                                                                                                

certain classes of felony offenders, the court must presume that no conditions of bail will  



                                                                                                                                 

guarantee the defendant's appearance at future court proceedings and the safety of the  



                                                                                                                           

victim and the public.  In other words, the court must presume that the defendant cannot  



                               

be released on bail.  



                                                                                                                        

                     In its brief in the present case, the State urges us to construe this statutory  



                                                                                                                        

presumption according to the literal wording of the statute.   That is, the State contends  



                                                                                                                                 

that, for the classes of defendants covered by the statute, a court must presume that the  



                                                                                                                             

defendant should not be released on bail under any conditions.  According to the State,  



                                                               - 3 -                                                          2618
  


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the defendant bears the burden of overcoming this presumption by convincing the court  



                                                                                                                                 

that there are, in fact, conditions of bail that will satisfy the twin goals of assuring the  



                                                                                                                                 

defendant's appearance at  future court proceedings and protecting the victim and the  



                                                                                                                              

public.  And until such time as the defendant succeeds in convincing the court that there  



                                                                                                                 

are adequate conditions of bail, the defendant is to be held without bail.  



                                                                                                                                    

                     But the Alaska  Constitution (unlike the federal constitution) contains a  



                                                                                                                              

specific guarantee of pre-conviction bail.  If the bail statute were interpreted as the State  



                                                                                                                               

proposes, the statute would clearly violate the Alaska Constitution's guarantee of pre- 



                                                               

conviction bail as interpreted in Martin .  



                                                                                                                        

                     In  prior  cases  raising this  same  issue,  the  State  has  taken  a  different  



                                                                                                                        

approach to the statute.  In those prior cases, the State has suggested that the statutory  



                                                                                                                                

presumption  against  bail  release  does  not  place  the  burden  of  persuasion  on  the  



                                                                                                                           

defendant.  Rather, the State has suggested that the "presumption" against bail release  



                                                                                                                                    

merely requires defendants to come forward with some articulable bail proposal (i.e., a  



                                                                                                                                 

proposalthat specifies the defendant's proposed conditions of release).  Accordingto this  



                                                                                                                                

alternative interpretation of the statute,  once a defendant presents an articulable bail  



                                                                                                                                 

proposal, the State bears the burden of persuasion - i.e., the burden of convincing the  



                                                                                                                 

court that the defendant's proposed conditions of release are inadequate.  



                                                                                                                                 

                     (For an example of a case where the State has taken this position, see the  



                                                                                                                                

State's bail brief in Vaneyck v. State, Court of Appeals File No. A-13021, and the bail  



                                                                                       

order that we issued in that case on February 7, 2018.)  



                                                                                                                        

                     But this alternative interpretation of the statute does nothing to eliminate  



                                                                                                                          

the statute's constitutional infirmity.  Even under this alternative reading of the statute,  



                                                                                                                                  

if  the  State  succeeds  in  convincing the  court  that  the  defendant's  bail proposal is  



                                                                                                                               

inadequate, the court is then authorized to hold the defendant without bail until such time  



                                                               - 4 -                                                          2618
  


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

 as the defendant succeeds in proposing bail conditions that are satisfactory to the court.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        



 This, too, violates the Alaska Constitution's guarantee of pre-conviction bail.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          



                                                                                                We therefore conclude that the pre-2018 version of AS 12.30.011(d)(2) is                                                                                                                                                                                                                                                                                                                                                                                                                                                            



unconstitutional.   We direct the trial court to set bail conditions for Hamburg.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            



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