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THE COURT OF APPEALS OF THE STATE OF ALASKA
CHARLES T. BURT, )
) Court of Appeals No. A-3550
Appellant, ) Trial Court No. 3KN-S90-157CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1185 - December 20, 1991]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
Charles K. Cranston, Judge.
Appearances: Allan Beiswenger, Robinson,
Beiswenger & Ehrhardt, Soldotna, for
Appellant. Kenneth M. Rosenstein, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
COATS, Judge.
Charles T. Burt was convicted, based upon his plea of
no contest, of violating his conditions of release, an
unclassified felony offense with a maximum sentence of five years
of imprison-ment. AS 12.30.060(1). In entering his plea, Burt
reserved his right to raise an appellate issue. See Cooksey v.
State, 524 P.2d 1251 (Alaska 1974). Burt contends that Superior
Court Judge Charles K. Cranston erred in failing to dismiss the
indictment against him. We affirm.
Burt was originally convicted of a felony for sexual
abuse of a minor. He was ultimately sentenced to five years with
all but forty-three months and fifteen days suspended. Burt was
placed on probation for a period of five years following his
release from custody. Burt served the unsuspended portion of his
sentence and was released on probation.
Burt's probation officer filed a petition to revoke
Burt's probation. Burt appeared in court before Judge Cranston
and denied the allegations in the petition to revoke probation.
Judge Cranston ordered Burt released on an unsecured bond of
$10,000. Judge Cranston also set several other conditions for
Burt's release. Burt signed a document called "Order and
Conditions of Release." That document provided in part that:
If defendant fails to appear before any court
or judicial officer as required, an
additional criminal case may be instituted
against defendant. If the failure to appear
is in connection with a felony
charge . . . the penalty is a fine of not
more than $5,000 or imprisonment for not more
than five years or both.
Judge Cranston ordered Burt to appear in court on
August 30, 1988, at 2:30 p.m., for an adjudication hearing on the
petition to revoke probation. Burt did not appear at the hearing
and Judge Cranston issued a warrant for his arrest. Burt was
arrested on the warrant in February 1990.
The state indicted Burt for violating his conditions of
release. Alaska Statute 12.30.060 provides in part:
Violation of conditions. A person re-
leased under the provisions of this chapter
who wilfully fails to appear before a court
or judicial officer as required shall incur a
forfeiture of any security which was given or
pledged for the person's release and if the
person was released
(1) in connection with a charge of
felony, or while awaiting sentence or pending
appeal after conviction of an offense, is
guilty of a felony and upon conviction is
punishable by a fine of not more than $5,000
or by imprisonment for not more than five
years, or by both . . . .
(Emphasis provided.)
Burt raises a two-pronged attack on his indictment. He
first contends that he was not released "in connection with a
charge of felony." He quotes from Trumbly v. State, 515 P.2d
707, 709 (Alaska 1973) (footnote omitted):
A probation revocation hearing is not a
criminal proceeding. The focus of the
hearing should be to determine whether the
probationer violated one or more of the
conditions of his probation and the
appropriate disposition in the event it is
determined that petitioner violated his
probation.
This contention appears to be answered by our recent
decision in State v. Stores, 816 P.2d 206 (Alaska App. 1991). In
that case, Stores, a parolee, was charged with second-degree
escape for running away from an officer who arrested him for a
parole violation. Under AS 11.56.310, a person is guilty of
escape in the second degree if, without lawful authority, he
removes himself from "official detention for a felony." Stores
argued that his arrest on a parole violation was not "for a
felony." We disagreed, pointing out that the great weight of
authority was to the effect that when Stores was arrested for a
parole violation he was being arrested on his original felony
charge. 816 P.2d at 209-10. In the process of arriving at this
decision, we cited State v. Perencevic, 774 P.2d 558 (Wash. App.
1989). Perencevic was a probationer who was being detained in
jail on warrants for probation violations which arose out of his
prior felony convic-tions. Perencevic attempted to escape, and
was charged under a statute which had as an element that
Perencevic was being "detained pursuant to a conviction of a
felony." The Washington court concluded that when a probationer
was being detained in jail for probation violations, he was being
"detained pursuant to a conviction of a felony." Following
Stores and Perencevic, we conclude that Burt was being held "in
connection with a charge of felony" when he was held for a
probation violation on a felony offense.
Burt next contends that he was not "released under the
provisions of this chapter." Burt cites Martin v. State, 517
P.2d 1389, 1397-99 (Alaska 1974), as support for his position
that he was not released under the Alaska Bail Act, AS 12.30, but
was rather released under the inherent power of the court. In
Martin, the supreme court decided the rights of various
defendants to release on bail under Alaska law. One of the cases
which the court decided was the right to bail of a defendant who
was facing proba-tion revocation proceedings. The court stated:
We do not interpret Article I, section
11 of the Alaska Constitution to extend the
right of bail to probation revocation
proceedings. While the Alaska Constitution
and statutes insure to the accused in all
criminal prosecutions a right to bail, Martin
was not the accused in a criminal prosecution
at the time he requested bail from the trial
court.
Nor do we find that appellant was
entitled to bail under the Alaska Bail Act.
His reliance on AS 12.30.010 is misplaced,
because the right to bail under this statute
is guaranteed prior to conviction. When a
defendant reaches the status of a
probationer, he can no longer claim the right
to bail protected by AS 12.30.010. Nor can
he claim bail under the probation statutes,
since they fail to mention bail, and AS
12.30.040, which provides for release after
trial is limited in application to convicted
persons awaiting sentence or whose appeal is
pending.
While we hold that appellant Max Ray
Martin was neither entitled to bail under the
Alaska Constitution nor the Alaska Bail Act,
we suggest bail should be withheld pending
revocation proceedings only in unusual cases.
Trial judges have wide latitude in imposing
suitable conditions for prehearing release,
other than the denial of bail.
Id. at 1398 (footnotes omitted; emphasis provided). We have
interpreted Martin as "recognizing an inherent power in the trial
courts to grant bail where no statute or constitutional provision
expressly authorizes or prohibits it." Stiegele v. State, 685
P.2d 1255, 1261 (Alaska App. 1984); Dobrova v. State, 674 P.2d
834 (Alaska App. 1984), aff'd, 694 P.2d 157 (Alaska 1985).
As a starting point, because both the Alaskan probation
and bail statutes are modeled after federal law, we have looked
to federal authority in resolving this issue.1 The only federal
authority which we have found supports the proposition that a
person who has been convicted of a felony and is released pending
a probation revocation is subject to being charged for failure to
appear under the federal Bail Reform Act. In United States v.
Garner, 478 F. Supp. 1 (W.D. Tenn. 1979), the court upheld a
conviction of a probationer under prior 18 U.S.C. 3150 (now
3146), the failure to appear section of the federal Bail Reform
Act. The court revoked Garner's probation and sentenced him to
nine months' incarceration with two years of probation to follow.
The judge released Garner on his own recognizance at the
conclusion of the revocation hearing and ordered him to surrender
to the United States Marshal on a given date. Subsequently,
Garner failed to turn himself in and was eventually convicted for
failure to appear.
The Garner court essentially held that probationers, by
virtue of their probation status, are "awaiting sentence" within
the language of prior 18 U.S.C. 3148 (and current 3143).
Because the court retains jurisdiction over the probationer
throughout the period of probation, see 18 U.S.C. 3651, 3653
(the federal probation statutes), probationers remain "in
custody" and are encompassed by the "awaiting sentence" language
of prior 18 U.S.C. 3148 (and current 3143) from the time of
release from confinement until the successful completion of
probation. See Garner, 478 F. Supp. at 3. The language of AS
12.30.0402 (the "awaiting sentence" provision of the Alaska Bail
Act) and AS 12.55.080, .090, and .100 (the probation statutes)
parallel the language of the federal bail and probation statutes
on which the court relied in Garner.
Our conclusion that federal probationers are released
pursuant to the federal Bail Reform Act is reinforced by the
holding in United States v. Giannetta, 695 F. Supp. 1254 (D. Me.
1988). In that case, Giannetta was facing revocation of his
probation. The court concluded that it had authority to release
Giannetta on bail under the provisions of the federal Bail Reform
Act, although it declined to do so.
We believe that policy arguments support following the
federal authority which holds that probationers are released
under the Bail Act and are subject to penalties under the Bail
Act for failure to appear. We see no reason to treat a person
who fails to appear after he has been convicted and is on
probation any more favorably than a person who fails to appear
when he is initially facing charges before he is convicted and is
presumed innocent, or when he has been convicted and is on bail
release pending appeal. It is reasonable to assume that the
legislature intended that the defendants in all of these
situations face charges for failure to appear if they violated
their conditions of release.3
Martin v. State does not require a different
conclusion. The direct holding of Martin is that a person who is
facing a probation revocation is not entitled to release on bail
under AS 12.30.010 as a matter of right.4 The Martin court
nevertheless recognized that the trial court has discretionary
authority to release a person charged with a probation violation
on bail. In so doing, Martin did not hold that the procedural
provisions of AS 12.30 are generally inapplicable when the court
does exercise its discretionary power to set bail for an accused
probation violator, and the Martin court did not indicate that a
release under such circumstances would not be deemed a "release
under" that chapter. We accordingly hold that probationers who
are released pending revocation, or similar judicial proceedings,
are released under the Alaska Bail Act and are subject to the
penalties under the Bail Act for failure to appear.
We conclude that Judge Cranston did not err in refusing
to dismiss the indictment.
The conviction is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. The Alaska Bail Act "was based largely on SB 1357,
89th Congress, First Session." AS 12.30, Revisor's Notes. AS
12.30 parallels the language of the federal Bail Reform Act. The
Alaska probation statutes are substantially similar to the
federal probation statutes. See Brown v. State, 559 P.2d 107,
109-10 (Alaska 1977).
2. AS 12.30.040 provides in part:
A person who has been convicted of an offense
and is awaiting sentence . . . shall be
treated in accordance with the provisions of
AS 12.30.020 unless the court has reason to
believe that no one or more conditions of
release will reasonably assure the appearance
of the person as required or prevent the
person from posing a danger to other persons
and the community.
3. If the penalties for failure to appear in the Bail
Act did not apply to defendants who were released pending
probation violations, the court could of course punish these
failures to appear under its contempt power, including the
court's inherent power to punish for contempt. However, the
court's inherent power to punish contempt is not well defined.
It appears to us that there could be considerable confusion
involved in charging probationers who violate their conditions of
release with contempt rather than with failure to appear. See
Standler v. State, 813 P.2d 270, 273-75 (Alaska 1991); Lastufka
v. State, 662 P.2d 991 (Alaska App. 1983).
4. Alaska Statute 12.30.010 provides:
A defendant in a criminal proceeding is
entitled to be admitted to bail before
conviction as a matter of right.
(Emphasis provided.)
