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

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


            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 @



                                                                                        Court of Appeals No. A-12147   

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


                                                                                                   O  P  I  N  I  O  N 


                                              Appellee.                                 No. 2442 - February 13, 2015  

                            il Appeal from  the  Superior Court, Third Judicial District,  


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                    We have concluded that, rather than simply issuing an unpublished order   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


                     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     



                                  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  


                      [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-----------------------


                    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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