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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DONALD R. HOSIER, )
) Court of Appeals No. A-6893
Appellant, ) Trial Court No. 1KE-96-1255 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1586 - May 1, 1998]
______________________________)
Appeal from the Superior Court, First Judicial
District, Ketchikan, Michael A. Thompson, Judge.
Appearances: Darrel J. Gardner, Assistant
Public Advocate, and Brant G. McGee, Public Advocate, Anchorage, for
Appellant. John A. Scukanec, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
In this case, we are asked to resolve a potential
inconsistency between a felony defendant's right to bail during the
prosecution of a merit appeal and the same defendant's right to bail
during the prosecution of a sentence appeal. [Fn. 1] Under the
Alaska statute that governs bail release following conviction,
AS 12.30.040, the superior court is prohibited from granting bail
pending appeal to any person convicted of a felony if (1) their
present offense is an unclassified or class A felony, or if (2) they
have previously been convicted of an unclassified or class A felony.
AS 12.30.040(b). However, in Dobrova v. State, 674 P.2d 834 (Alaska
App. 1984), aff'd 694 P.2d 157 (Alaska 1985), both this court and
the supreme court held that AS 12.30.040 applies only to merit
appeals and does not govern the question of bail release during
sentence appeals. We further held that, in the absence of a
governing statute, trial courts retain the common-law authority to
release a defendant on bail during a sentence appeal. 674 P.2d at
835; 694 P.2d at 158.
The appellant in this case, Donald R. Hosier, stands
convicted of second-degree theft and second-degree forgery, and he
has filed a merit appeal in this court. Hosier's present crimes are
class C felonies; see AS 11.46.130(c) and AS 11.46.505(b). He has
a prior conviction for a class A felony. [Fn. 2] Thus, AS 12.30.-
040(b)(2) prohibits the superior court from releasing Hosier on bail
pending his appeal.
Hosier argues, however, that this bail statute denies him
the equal protection of the law guaranteed by Article I, Section 1
of the Alaska Constitution. Citing Dobrova, Hosier contends that
if he had filed a sentence appeal instead of a merit appeal, the
superior court would have had the discretion to release him on bail
notwithstanding the restrictions codified in AS 12.30.040(b).
Hosier therefore concludes that merit-appeal defendants are being
unfairly penalized for their decision to attack their convictions.
He urges us to declare AS 12.30.040(b) unconstitutional.
The State agrees with Hosier that, given the restrictions
on post-conviction bail found in AS 12.30.040(b) and given the
decision in Dobrova, there is a group of felony defendants who will
have a better opportunity to secure bail release on appeal if they
file sentence appeals as opposed to merit appeals. The State
further agrees with Hosier that there does not seem to be a good
reason for giving sentence-appeal defendants a greater opportunity
for post-conviction bail than similarly situated merit-appeal
defendants. However, the State suggests a different remedy for this
problem: the State asks us to overrule Dobrova and hold that
sentence-appeal defendants have no right to bail pending appeal.
Even if it were within our power to overrule a decision
of the Alaska Supreme Court, we would not do so in this case.
Instead, as we explain in more detail below, we conclude that the
answer to the equal protection problem lies in our power to construe
the common law. Dobrova recognized a trial court's common-law
authority to order bail release for a defendant who pursues a
sentence appeal. We now hold that, to avoid the equal protection
problem described above, this common-law authority must be exercised
within the limitations codified in AS 12.30.040(b). That is, even
though a trial court has the discretion to release a defendant on
bail during a sentence appeal, it is an abuse of that discretion to
release a defendant if that same defendant would be ineligible for
bail release during a merit appeal.
The first step in our analysis is to identify the legal
bases of the Dobrova decision. Dobrova rests on a two-fold
foundation: a construction of AS 12.30.040, and a corresponding
delineation of the courts' common-law authority. In Dobrova, this
court and the supreme court held that AS 12.30.040 was intended to
apply only to merit appeals, and that the question of bail release
in sentence appeals was not governed by this statute (or any other).
674 P.2d at 835; 694 P.2d at 158. Thus, no statute either expressly
conferred or expressly denied the right to bail release pending a
sentence appeal. We next held that, in the absence of a governing
statute, trial courts had the inherent authority to release a
defendant on bail during a sentence appeal. 674 P.2d at 835; 694
P.2d at 158.
Hosier emphasizes the portion of Dobrova which held that
the right to bail during sentence appeals is not governed by
AS 12.30.040. From this portion of Dobrova, Hosier derives another
rule: that a judge's discretion to grant bail release during a
sentence appeal is not restricted by the provisions of AS 12.30.-
040(b). Hosier argues that if a defendant in his position (a
defendant currently convicted of a class C felony, with a prior
conviction for a class A felony) filed a sentence appeal, the
superior court could disregard the restriction codified in
AS 12.30.040(b)(2) and could, in the court's discretion, grant bail
release pending appeal.
Hosier's argument overlooks the second basis for the
Dobrova decision the doctrine that, in the absence of a governing
statute or constitutional provision, the judiciary retains the power
to declare the common law and to promulgate supervisory rules of
practice to govern litigation. [Fn. 3] For purposes of deciding
Hosier's appeal, it is crucial to note the converse doctrine: the
existence of applicable legislation will limit the courts' exercise
of their common-law authority.
Dobrova was not the first time that the supreme court
recognized the common-law power of courts to release a criminal
defendant on bail even when this action was not expressly authorized
by constitutional provision or statute. In Martin v. State, 517
P.2d 1389, 1397-99 (Alaska 1974), the court held that, even in the
absence of an applicable constitutional or statutory provision,
trial courts had the authority to grant bail release in probation
revocation proceedings.
But neither Martin nor Dobrova stands for the proposition
that courts have unbounded "inherent authority" to release
defendants on bail, even when the constitution or governing
legislation provides otherwise. Rather, these two cases simply
recognize that courts have the authority under the common law to
establish rules for bail release in situations that are not covered
by constitutional or statutory law.
[Martin and Dobrova] apply the general rule
that the common law, i.e., a court's power to declare the law,
exists in the absence of a conflicting statute or court rule. See
AS 01.10.010. [These decisions] recognize that legislative silence
regarding availability of bail does not preclude a court from
granting it.
Stiegele v. State, 685 P.2d 1255, 1261 (Alaska App. 1984).
As indicated by Stiegele and the cases cited in foot-
note 3, the common-law authority recognized in Martin and Dobrova
must be exercised in a manner that does not conflict with
constitutional or statutory law. When the legislature has acted
for example, by expressly denying bail to certain categories of
defendants then the courts may not exercise their common-law power
in a manner inconsistent with the legislature's determination.
For instance, in Stiegele the defendant attacked the
constitutionality of what is now AS 12.30.040(b)(1), a provision
that denies bail pending appeal to persons convicted of unclassified
and class A felonies. This court upheld the statute, and we took
pains to point out that our decision was fully reconcilable with the
supreme court's decision in Martin and our decision in Dobrova:
This decision is not inconsistent with
decisions recognizing an inherent power in the trial courts to grant
bail where no statute or constitutional provision expressly
authorizes or prohibits it. ... [Where] the legislature has,
however, specifically forbidden bail to those convicted of
unclassified felonies and class A felonies[,] ... we hold that the
trial court has no inherent authority to grant bail in derogation
of [the statute].
Stiegele, 685 P.2d at 1261.
Since the time that Dobrova and Stiegele were decided, the
legislature has enacted no statute to govern a defendant's right to
bail release during a sentence appeal. Thus, the right to bail
during a sentence appeal continues to be governed by the common law.
However, once one recognizes the common-law basis of the Dobrova
decision, the underlying issue presented in Hosier's appeal becomes
clearer. That issue is: when a trial court exercises its common-
law authority to grant bail pending a sentence appeal, does the
court abuse its discretion if the court exercises that authority in
a manner that gives defendants who file sentence appeals greater
right to bail release than similarly situated defendants who file
merit appeals? We conclude that the answer to this question is
"yes". A court abuses its discretion when it exercises its common-
law power of bail release in a manner that creates an equal
protection problem by treating sentence-appeal defendants more
favorably than merit-appeal defendants.
This court has previously ruled (in another context) that
courts should not exercise their common-law power in ways that lead
to results that the legislature has rejected. In Totemoff v. State,
739 P.2d 769 (Alaska App. 1987), the issue was whether the three-
judge sentencing panel should recognize a non-statutory aggravator
or mitigator if the legislative history of AS 12.55.155 showed that
the legislature had considered and rejected a similar factor for
inclusion in the statutory list of aggravators and mitigators. We
concluded that recognition of such a non-statutory factor would be
improper:
[A] trial court should not propose a
nonstatutory mitigating factor to the three-judge panel where the
legislature specifically rejected that factor for inclusion in AS
12.55.155(d). Where the legislature has expressly addressed a
consideration, such as the relationship between a defendant's past
conduct and his present offense, and imposed limitations on the
trial court's power to consider that relationship in mitigation of
sentence, the trial court should not propose the same mitigating
factor to the three-judge panel without complying with the
limitations; to do so is to suggest a common law development
inconsistent with legislation.
Totemoff, 739 P.2d at 776. See also Dancer v. State, 715 P.2d 1174,
1178 n.3 (Alaska App. 1986).
The wording of the Dobrova opinion likewise reflects an
intention not to "suggest a common law development inconsistent with
legislation". The defendant in Dobrova was appealing his conviction
of a class C felony (possession of cocaine). 674 P.2d at 834. At
the time Dobrova was decided, when a defendant was convicted of a
class C felony, only one limitation was placed on the defendant's
right to bail pending a merit appeal: under AS 12.30.040(a), the
trial court could deny bail if it found "that no one or more
conditions of release [would] reasonably assure the [defendant's]
appearance ... or prevent the [defendant] from posing a danger to
other persons and the community."
Even though this court concluded that AS 12.30.040(a) did
not govern Dobrova's right to bail pending a sentence appeal, this
court spoke of the statutory limitations on merit-appeal bail
release as if they constituted, in effect, the outer limit of the
trial court's discretion to release Dobrova in a sentence appeal.
That is, when speaking of the trial court's common-law authority to
release Dobrova on bail during his sentence appeal, this court did
not suggest that sentence-appeal defendants could be released on
bail more readily than merit-appeal defendants. Rather, this court
emphasized the trial court's power to deny bail to Dobrova and other
sentence-appeal defendants, even in circumstances when they would
be entitled to bail release if they had filed merit appeals:
Since a sentence appeal does not fall within
AS 12.30.040, it necessarily follows that the
trial court has discretion to deny bail
[during] a sentence appeal without finding "that 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." AS 12.30.040(a). Nevertheless,
the trial court, in exercising its discretion, must make a reasoned
decision.
Dobrova, 674 P.2d at 835 (emphasis added).
This reading of Dobrova is most consistent with the
doctrine of the judiciary's common-law authority. When the courts
exercise their common-law authority, the guiding principle is that
they should not exercise this authority in disregard of existing
constitutional and statutory provisions. In AS 12.30.040, the
legislature has prohibited certain categories of defendants from
obtaining bail release during a merit appeal. And in AS 12.55.-
120(c), the legislature has declared that the filing of a sentence
appeal "does not confer or enlarge the right to bail pending
appeal." The apparent purpose of this second statute is to ensure
that defendants who file merit appeals and who, by virtue of AS 12.-
30.040(b), would not be able to obtain bail release pending the
litigation of those appeals, will not gain any advantage by also
attacking their sentence on appeal. Given the rule that the courts'
common-law power should not be exercised in contravention of
statute, these legislative enactments suggest that courts should not
exercise their common-law authority to grant bail to sentence-appeal
defendants in situations where the same defendants would not be able
to obtain bail release if they had filed merit appeals. This result
is supported by our decision in Totemoff and by the language of
Dobrova itself.
This result is also supported by another legal doctrine.
Courts are "under a duty to construe [statutes] to avoid constitu-
tional infirmity where possible". Municipality of Anchorage v.
Anchorage Police Dep't Employees Ass'n, 839 P.2d 1080, 1083 (Alaska
1992) (citing State v. Fairbanks North Star Borough, 736 P.2d 1140,
1142 (Alaska 1987)). We believe that we are under a similar duty
to avoid interpreting the judiciary's common-law authority in a
manner that creates constitutional problems.
If trial courts, when asked to grant bail pending a
sentence appeal, were authorized to ignore the restrictions on
merit-appeal bail codified in AS 12.30.040(b), this would create the
"anomaly" addressed by Justice Compton in his concurring opinion in
State v. Dobrova: the possibility that "a defendant who maintains
his innocence by challenging his conviction [would] apparently [be]
worse off with respect to [bail] release [pending appeal] than a
person who accepts his guilt and challenges only his sentence". 694
P.2d at 159-160.
Justice Compton's observation encapsulates the equal
protection problem that Hosier raises in this appeal. The answer
to this problem is not to invalidate AS 12.30.040(b), but rather to
construe the trial courts' common-law authority to make it congruent
with the statute, thus eliminating any potential disparate treatment
between the two groups of defendants.
For the foregoing reasons, we hold that when a defendant
asks a trial court to exercise its common-law authority to grant
bail release during a sentence appeal, the court must not release
the defendant on bail if that same defendant would be barred under
AS 12.30.040(b) from obtaining bail release during a merit appeal.
This construction of the trial court's common-law power ensures that
Hosier and similarly situated defendants will be treated the same,
for bail purposes, whether they file merit appeals or sentence
appeals.
We thus reject Hosier's equal protection attack on
AS 12.30.040(b) and we AFFIRM the decision of the superior court
declining to set bail for Hosier during this appeal.
FOOTNOTES
Footnote 1:
A "merit" appeal challenges the lawfulness of a defendant's
conviction or sentence. A "sentence" appeal, on the other hand,
concedes the lawfulness of a defendant's sentence but challenges its
severity. Rozkydal v. State, 938 P.2d 1091, 1093-94, 1097 (Alaska
App. 1997).
Footnote 2:
Hosier was convicted of first-degree assault, AS 11.41.-
200(a), in case no. 1WR-89-030 Cr. See Hosier v. State, Memorandum
Opinion No. 2427 (Alaska App.; May 13, 1992).
Footnote 3:
See Bauman v. Day, 892 P.2d 817, 828 (Alaska 1995) (the
supreme court is authorized to declare the common law "in the
absence of a statute directing a contrary rule"); Surina v.
Buckalew, 629 P.2d 969, 973 (Alaska 1981) (in the absence of
statute, it is an appellate court's duty to explicate the common
law, which will apply unless and until the Alaska legislature acts
to modify it); Beran v. State, 705 P.2d 1280, 1288 (Alaska App.
1985) ("The common law consists of judicial pronouncements [cover-
ing] situations not deal[t] with [by] a constitutional [provision]
or statut[e]". These judicial pronouncements remain the law "unless
and until modified by the Alaska legislature".).
This common-law authority is separate from the authority
granted to the Alaska Supreme Court under Article IV, Section 15 of
the Alaska Constitution to "promulgate rules governing the
administration of all courts [and] rules governing practice and
procedure". See State v. J.R.N., 861 P.2d 578, 580 n.5 (Alaska
1993); Coghill v. Coghill, 836 P.2d 921, 927 (Alaska 1992);
Citizens' Coalition v. McAlpine, 810 P.2d 162, 165, 167 n.10 (Alaska
1991); State v. Gonzalez, 825 P.2d 920, 927 n.4 (Alaska App. 1992).
