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: twhitman@appellate.courts.state.ak.us
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. 1629 - March 26, 1999]
______________________________)
Appeal from the Superior Court, First Judicial
District, Ketchikan, Michael A. Thompson, Judge.
Appearances: Donald R. Hosier, Florence,
Arizona, in propria persona, 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.
Donald Hosier has been convicted of forgery and theft, and
he is appealing these convictions. He asked the superior court to
release him on bail pending appeal, but the superior court denied
this request. Hosier now seeks review of the superior court's
decision.
Hosier concedes that AS 12.30.040(b)(2) prohibits his
release pending appeal (because his current convictions are class
C felonies and he has a prior conviction for a class A felony). [Fn.
1] However, Hosier contends that this statute is unconstitutional.
Hosier has previously attacked the constitutionality of
this bail statute. In his prior attack, Hosier argued that the
statute denied him equal protection of the law. We rejected this
contention and upheld the statute in Hosier v. State. [Fn. 2]
Hosier now mounts a different constitutional challenge to
the statute: he asserts that the federal and state constitutions
guarantee him a right to post-conviction bail, and thus the
legislature had no authority to enact the challenged statute.
Hosier bases his federal constitutional claim on the
Eighth Amendment, which states that "[e]xcessive bail shall not be
required". However, it is "well[-]accepted that ... post-conviction
bail is not ... guaranteed" by the federal constitution; "[a] state
may, if it chooses, decline to provide a system for post-conviction
bail, simply because convicted persons do not have a right to bail
pending appeal." [Fn. 3]
The Alaska Constitution contains two provisions relating
to bail: Sections 11 and 12 of Article I.
Section 11 states that "[i]n all criminal prosecutions,
the accused shall have the right ... to be released on bail, except
for capital offenses when the proof is evident or the presumption
great". Hosier concedes that this section does not guarantee a
right to post-conviction bail. Hosier's concession is well-founded;
the Alaska Supreme Court has squarely held this. [Fn. 4]
However, Hosier argues that Article I, Section 12
guarantees a right of post-conviction bail. Section 12 parallels
the Eighth Amendment to the United States Constitution; it states
that "[e]xcessive bail shall not be required". As noted above, this
same language in the federal constitution has been construed not to
grant a right of post-conviction bail. It therefore follows that,
in the absence of some reason to believe that the Alaska drafters
intended a different result, we should interpret the Alaska
constitutional provision in conformity with the interpretation given
to its federal counterpart. [Fn. 5]
Moreover, in Martin v. State [Fn. 6], the Alaska Supreme
Court held that, to the extent Section 12 may grant a right to bail,
it does not guarantee any greater right to bail than the pre-
conviction bail guaranteed by Section 11:
It is not necessary [for us] to determine
whether or not Article I, section 12 of the Alaska Constitution
guarantees a right to bail and, indeed, such an interpretation would
be superfluous in view of the right to bail provision found in
Article I, section 11. It is enough to say that the excessive bail
provision [of Article I, section 12] insures the fixing of a
reasonable bail and is to be considered in conjunction with the
right to bail provision of Article I, section 11.
Martin, 517 P.2d at 1395.
For these reasons, we reject Hosier's contention that
criminal defendants are guaranteed the right to post-conviction bail
by either the Eighth Amendment to the United States Constitution or
Article I, Section 12 of the Alaska Constitution. The decision of
the superior court (denying Hosier's request for bail release
pending appeal) is AFFIRMED.
FOOTNOTES
Footnote 1:
Under AS 12.30.040(b)(2), "[A] person may not be released on
bail either before sentencing or pending appeal if the person has
been convicted of ... a class B or class C felony [and] the person
has been previously convicted of ... an unclassified felony [or] a
class A felony".
Footnote 2:
957 P.2d 1360 (Alaska App. 1998).
Footnote 3:
Griffith v. State, 641 P.2d 228, 231 (Alaska App. 1982).
Footnote 4:
See State v. Wassillie, 606 P.2d 1279, 1281-82 (Alaska 1980);
see also Martin v. State, 517 P.2d 1389, 1397-98 (Alaska 1974)
(holding that Article I, Section 11 does not guarantee a right to
bail in probation revocation proceedings).
Footnote 5:
See State v. Zerkel, 900 P.2d 744, 758 n.8 (Alaska App. 1995)
(citing Abood v. League of Women Voters, 743 P.2d 333, 340-43
(Alaska 1987), Wassillie, 606 P.2d at 1281-82, Annas v. State, 726
P.2d 552, 556 n.3 (Alaska App. 1986), and State v. Dankworth, 672
P.2d 148, 151 (Alaska App. 1983)).
Footnote 6:
517 P.2d 1389 (Alaska 1974).
