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Lonis v. State (2/18/00) ap-1661
Lonis v. State (2/18/00) ap-1661
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@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL F. LONIS, )
) Court of Appeals Nos. A-6974/7409
Appellant, ) Trial Court No. 1WR-S97-112 CR
)
v. )
)
STATE OF ALASKA, ) O P I N I O N
)
Appellee. ) [No. 1661 - February 18, 2000]
______________________________)
Appeal from the Superior Court, First Judicial
District, Ketchikan, Larry C. Zervos, Judge.
Appearances: Michael P. Heiser, Ketchikan,
for Appellant. W. H. Hawley, Jr., Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, Mannheimer and
Stewart, Judges.
COATS, Chief Judge.
Michael F. Lonis was convicted, following a jury trial,
of three counts of assault in the third-degree, class C felonies;
driving while intoxicated, a class A misdemeanor; and failure to
give notice of an accident, a class A misdemeanor. Superior Court
Judge Larry C. Zervos sentenced Lonis to a composite sentence of
five years and nine months with two years suspended. Lonis appeals
to this court, arguing that Judge Zervos had no authority to
forfeit bail based upon Lonis' failure to abide by his conditions
of release, that Judge Zervos erred in granting a change of venue
motion, changing venue to Ketchikan, and in not letting Lonis
personally address the jury during argument. He also argues that
Judge Zervos erred in awarding restitution to the victim's
insurance company and imposed an excessive sentence. We conclude
that Judge Zervos erred in forfeiting Lonis' bond based upon Lonis'
failure to abide by his conditions of release. In all other
respects, we conclude that Lonis' contentions are not meritorious
and affirm his convictions and sentence.
On July 18, 1997, at approximately 5:00 p.m., Michael F.
Lonis was driving his pickup truck in Wrangell, Alaska. Lonis'
young son, Elwood, was in the truck with him. While driving down
Case Avenue, Lonis lost control of his truck and crashed into the
home of Wes and Helen Allen. The truck hit the house near the
kitchen. Mrs. Allen was alone in the home at the time and sustained
injuries to her neck and stomach.
After the crash, Lonis got out of his truck, and crawled
into the wreckage of the house in order to lock his front hubs so
that he could engage his four wheel drive. Lonis then backed out of
the Allen's house and drove away. In the process, he nearly hit
another car, then ran into a ditch and across a driveway. His
driving was very erratic. Due to damage to his truck, Lonis had
difficulty driving to his apartment. Upon arriving at his
apartment, he grabbed Elwood and dragged him into the apartment
complex.
Sergeant Woods was the first police officer to arrive at
Lonis' apartment. Woods knocked on the door and announced herself
as a police officer. Lonis did not respond. Officer Chafin later
went to Lonis' apartment. Lonis told Officer Chafin that the police
would not take him in without a fight. Lonis threatened to kill
Chafin and appeared to arm himself with a rifle. Later, while
Lieutenant McCloskey was on the scene, Lonis came out of his
apartment with a rifle. He pointed the rifle in the general
direction of the police officers and again threatened to kill them.
Lonis then went back into his apartment. The police evacuated
residents from nearby buildings and guarded Lonis' residence.
Lonis gave himself up at 5:30 a.m. the next morning.
A grand jury indicted Lonis for two counts of assault in
the third-degree for threatening Officer Chafin and Lieutenant
McCloskey with a rifle, two counts of assault in the third-degree
for injuring Mrs. Allen and Elwood with the truck, one count of
driving while intoxicated, and one count of failing to give
immediate notice of an accident to the police. Lonis was acquitted
on the charge that he assaulted his son, but was convicted on the
remaining offenses.
Lonis first contends that Judge Zervos erred in
forfeiting $4,500 of his bond based upon Lonis' failure to abide by
his conditions of release. He argues that Judge Zervos had no
authority to forfeit the bond unless Lonis failed to appear.
At Lonis' bail hearing on July 24, 1997, Judge Zervos
attached several conditions to Lonis' release: that Lonis could
not have contact with alcohol or firearms, that he must check-in
daily, that the police would search Lonis' house before his
release, and that he must post a $5,000 bond. Judge Zervos
explained that the purpose of the bond was to guarantee Lonis'
appearance and to guarantee Lonis' compliance with his conditions
of release. The court's Temporary Order dated July 25, 1997 stated
that Lonis had posted an appearance and performance cash bond of
$5,000. In addition, the order and conditions of release stated
that Lonis was required to obey all municipal, state, and federal
laws and ordinances.
On December 24, 1997, Lonis was arrested in Pennsylvania
for simple assault, endangering the welfare of a minor, disorderly
conduct, and public drunkenness. Subsequently, he pled guilty to
two counts of disorderly conduct and harassment, and was sentenced
to time served.
On February 26, 1998, Judge Zervos held a hearing on the
state's motion to forfeit Lonis' bond. At this hearing, the judge
explained that Lonis had notice that his money would be subject to
forfeiture if he violated the conditions of bail. He found that
Lonis' misdemeanor convictions in Pennsylvania constituted a
violation of his conditions of release. Noting that the state
expended significant funds in bringing Lonis back to Alaska, [Fn.
1] the judge ordered forfeiture of $4,500 of Lonis' $5,000 bond.
Bail release before trial and after conviction is
governed by AS 12.30.020. [Fn. 2] Under this statute, a court may
require the defendant to post monetary bail, either in the form of
an appearance bond secured by a deposit of money or in the form of
a commercially issued bail bond. [Fn. 3] This money or bond (a
conditional promise to pay money) figuratively takes the place of
the defendant. Under Criminal Rule 41(e), a court must release the
deposited money and/or exonerate the bond if the defendant is
returned to custody before the bail is forfeited. And Criminal
Rule 41(f) declares that, even after bail is forfeited, the owner
of the deposited money or the sureties on the bond may apply to the
court for remission of the forfeiture if they helped to secure the
return of the defendant to custody or if they prove other
extenuating circumstances.
In addition to authorizing the imposition of monetary
bail, AS 12.30.020 also authorizes a court to impose other
conditions of release. The court may require a defendant to remain
in the custody of a designated person or organization, [Fn. 4] to
remain in particular locales or residences, [Fn. 5] or to spend
nights in custody. [Fn. 6] Indeed, AS 12.30.020(b)(6) authorizes a
court to "impose any other condition [of release] considered
reasonably necessary to assure the defendant's appearance as
required and the safety of the alleged victim, other persons, or
the community."
With respect to monetary bail, AS 12.30.060 declares that
a defendant who willfully fails to appear in court as required
"shall incur a forfeiture of any security . . . given or pledged
for the person's release[.]" Criminal Rule 41(f)(1) echoes the
statute and specifies the procedures for declaring and enforcing
the forfeiture. Thus, both the statute and the rule authorize the
court to seize the pledged bail money when the defendant willfully
fails to appear. But neither the statute nor the rule authorizes
the court to seize a defendant's bail when the defendant fails to
comply with the other conditions of release.
The state argues that the bail statute implicitly grants
this authority to the courts. According to the state, when the
legislature gave courts the power to impose non-monetary conditions
of release, the legislature must have intended for courts to employ
bail forfeiture as a means of enforcing these non-monetary
conditions. But there is no legislative history to support the
state's assertion. Indeed, even though the legislature amended AS
12.30.020 over thirty years ago to allow a court to impose non-
monetary conditions of release, [Fn. 7] the legislature has never
amended AS 12.30.060 to authorize bail forfeiture as a penalty for
violating these non-monetary conditions.
The state would have us interpret the legislature's
inaction as an oversight, but we are not convinced. We note that
the drafters of the federal bail statute, 18 U.S.C. sec. 3142,
specifically intended that monetary bail be imposed only to assure
a defendant's appearance. [Fn. 8] We also note that, were we to
adopt the state's position, this would have a major impact on the
issuance of bail bonds.
Commercial sureties, as well as family and friends, would
suddenly face significant additional risks to the money and
property they pledged to secure a defendant's release. The money
and property would be subject to forfeiture under many additional
circumstances, and it is unclear what the person would have to do
to seek a remission of the forfeiture. Criminal Rule 41(f)(4)
states that a person who furnished or pledged the money or property
can seek remission of a bail forfeiture by helping to cure the
defendant's failure to appear that is, by assisting the
authorities in securing the defendant's return to custody. But
there is no apparent way for a surety to "cure" the violation of a
bail order forbidding the defendant from drinking alcohol, visiting
a particular locale, or leaving home after dark. A
court's authority to grant pre-trial release, to formulate
conditions of release, and to punish a defendant for failing to
abide by these conditions, are all governed by statute. The
legislature has given courts broad power to set conditions of
release, and it has equipped courts with various methods of
enforcing those conditions of release. When a defendant violates
the conditions of release, the court may issue a warrant for the
defendant's arrest, the court may revise the conditions of release
to make them more onerous, and the court can initiate contempt
proceedings against the defendant. [Fn. 9] But, with respect to
bail forfeiture, AS 12.30.060 and Criminal Rule 41 speak of
imposing this penalty for only one type of violation a
defendant's failure to appear. For the reasons discussed above, we
reject the state's contention that the statute and the rule should
be interpreted as implicitly granting courts the authority to
forfeit bail in other circumstances.
We likewise reject the state's argument that, if the
statute and the rule are silent on the issue of non-monetary
conditions of release, courts still possess a common law power to
seize a defendant's bail when the defendant violates one or more of
these non-monetary conditions. True, 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.
[Fn. 10] But we believe the present situation is covered by
legislation. As discussed above, if courts were allowed to seize
a defendant's bail for violation of non-monetary conditions of
release, this would work a major change in the law of bail, and it
would likely affect the readiness of sureties (both commercial and
informal) to pledge their money and property to secure a
defendant's release. Given this fact, it seems probable that the
legislature and the supreme court consciously chose to restrict
bail forfeiture to circumstances in which a defendant fails to
appear. Because we must not declare a rule of common law that
defeats the policies embodied in statutes and court rules, [Fn. 11]
we decline the state's invitation to expand bail forfeiture under
the rubric of the common law.
Accordingly, we hold that Judge Zervos erred when he
ordered forfeiture of Lonis' bail money for reasons other than non-
appearance. The money must be returned.
Lonis argues that Judge Zervos erred in granting Lonis'
attorney's motion to move the trial court out of Wrangell once it
became clear that Lonis opposed changing venue. Wrangell is a
small town with fewer than 3,000 residents. During three days of
jury voir dire, it became apparent that it would be difficult to
impanel an impartial jury. The incident in question was a matter
of local interest and was the subject of three stories in the local
paper, The Wrangell Sentinel. Many of the prospective jurors had
heard of the incident and many had driven by the house that Lonis
crashed into. Judge Zervos granted 41 challenges for cause during
three days of jury selection. After three days of jury selection,
Lonis' counsel moved for a change of venue. Counsel pointed out
that almost all of the people that the parties had questioned knew
the Allens or Lonis. From the jury voir dire, counsel concluded
that "public opinion is very much against [Lonis]." The state did
not oppose the motion for a change of venue, concluding that there
was "a strong basis" for the attorney's conclusion that Lonis could
not obtain a trial with an impartial jury in Wrangell. Lonis
consistently opposed changing venue from Wrangell. Lonis insisted
that he wanted to be vindicated in front of a Wrangell jury. He
stated that, if necessary, he would discharge his attorney in order
to have a trial in Wrangell.
Judge Zervos concluded that he should address the change
of venue issue first and deal with the question of Lonis'
representation at a later time. He concluded that it would not be
possible for Lonis to obtain an impartial jury in Wrangell and
granted the motion to change venue.
Under AS 22.10.040(1), a trial judge can change venue
"when there is reason to believe that an impartial jury cannot be
had[.]" The record of the jury voir dire supports Judge Zervos'
conclusion that Lonis could not obtain an impartial jury in
Wrangell. We accordingly conclude that Judge Zervos did not abuse
his discretion in granting a change of venue.
Lonis next argues that Judge Zervos erred in moving the
trial to Ketchikan rather than to Sitka. After Judge Zervos
granted the motion for change of venue, he asked the prosecutor,
the defense lawyer, and the defendant where they would prefer to
have the trial. The state requested that the trial be held in
Ketchikan. The defense suggested Sitka. The judge initially decided
to conduct the trial in Sitka. However, after several of the
witnesses informed the judge that they would have great difficulty
traveling to Sitka, he changed his mind and ordered the trial held
in Ketchikan. The judge explained that he switched the location to
Ketchikan as "a matter of convenience" for the people involved.
Judge Zervos had already determined to change venue
from Wrangell because Lonis could not obtain an impartial jury at
that location. He therefore had discretion to move venue to any
reasonable location, subject to review only for an abuse of
discretion. [Fn. 12] The record shows that Ketchikan was the more
convenient location for witnesses. Lonis has not advanced any
reason why Judge Zervos abused his discretion other than Lonis'
assertion that he felt more comfortable with the residents of Sitka
serving on his jury. We conclude that Judge Zervos did not abuse
his discretion in moving the venue to Sitka.
Lonis argues that Judge Zervos erred in denying his
request to represent himself or, in the alternative, his request
for co-counsel status. The record, however, does not show that
Judge Zervos abused his discretion. Even during the discussion
about whether venue would remain in Wrangell, Lonis stated that his
attorney was "doing an excellent job," that he respected her
opinions, and that he wished for her to remain as his attorney.
Lonis stated that, if necessary, he would discharge his counsel and
represent himself in order to have venue in Wrangell. But when
Judge Zervos indicated that he intended to move the trial from
Wrangell, Lonis did not press the issue of representation.
Over a month later, in Ketchikan, the court addressed the
issue of whether Lonis wanted to represent himself. Lonis stated
unequivocally that he wanted the attorney to represent him. But he
indicated that he would like to address the jury at some point in
the trial. The state opposed this request. Judge Zervos took the
request to have Lonis address the jury under advisement.
The record reflects that Lonis ultimately chose to have
counsel represent him rather than representing himself. We
accordingly conclude that he has not preserved this issue for
appeal. [Fn. 13] Thus, the only question before us is whether
Judge Zervos erred in refusing to let Lonis address the jury at the
end of the case.
"The trial court has broad discretion to deny hybrid
representation or co-counsel status." [Fn. 14] Where a defendant
asks for co-counsel or hybrid representation, "a court must
consider the alternatives available to it and choose among them."
[Fn. 15] The record shows that Judge Zervos exercised his
discretion and fully considered Lonis' request. But he concluded,
that in a case where Lonis had not testified, it would be unfair to
have Lonis address the jury, giving him some of the benefits of
testifying without being subject to cross-examination.
Lonis argues that this was error. He argues that he was
unaware until Judge Zervos' ruling that he would not be able to
address the jury unless he testified. He argues that it was too
late for him to testify at that point. But at the time Judge
Zervos made his ruling, the case had not yet been submitted to the
jury. It appears that Lonis could have asked Judge Zervos to allow
him to testify. But he did not. Furthermore, Judge Zervos was
entitled to rule on the question of whether Lonis would be able to
address the jury at the close of the trial. Lonis did not press
for an earlier ruling and Judge Zervos was not required to give
one. Judge Zervos' reasons for denying Lonis an opportunity to
personally address the jury appear sound, and we conclude that he
did not abuse his discretion.
Lonis argues that Judge Zervos erred in ordering him to
pay restitution of $30,024.11 to Allstate Insurance Company, the
victim's insurer. Lonis argues that Judge Zervos had no authority
to order restitution to the victim's insurer.
AS 12.55.045(a) provides that a "court may order a
defendant convicted of an offense to make restitution . . . to the
victim or other person injured by the offense." Lonis argues that
an insurance company cannot be a "victim or other person injured by
the offense." But the Alaska statutes generally recognize that
the term "person" includes a corporation "unless the context
otherwise requires[.]" [Fn. 16] Although only applying to Title 11,
AS 11.81.900 defines a person to include a corporation. [Fn. 17] In
addition, the legislature specifically stated that it intended to
have courts construe AS 12.55.045(a) broadly to require courts to
order restitution to all persons who were injured as a result of a
defendant's conduct. [Fn. 18]
In interpreting a statute, this court must "adopt the
rule of law which is most persuasive in light of precedent, policy,
and reason." [Fn. 19] It seems most likely from both the plain
language of AS 12.55.045 and the stated legislative policy that an
insurance company which suffers a loss, because of a defendant's
conduct, is a "victim" entitled to receive restitution under the
statute.
Furthermore, Lonis does not claim or deny that he caused
the damage which resulted in the restitution award. The court
could have awarded restitution directly to the Allens, even though
the Allens had already received payment from the insurance company.
[Fn. 20] Thus, even if we assume that the insurance company does
not qualify as a "victim," Lonis has no standing to complain that
the court ordered the restitution paid directly to the insurance
company instead of through the Allens.
Lonis argues that his sentence of five years and nine
months with three years suspended is excessive. Lonis points out
that he was a first-felony offender for purposes of presumptive
sentencing. The most serious offense for which he was convicted,
assault in the third degree, is a class C felony. [Fn. 21] A class
C felony is punishable by a maximum term of five years of
imprisonment. There is a presumptive term of two years for a
second-felony offender and three years for a third-felony offender.
[Fn. 22] Lonis points out that when a first-felony offender is
convicted of several crimes, the court is not to exceed the
presumptive term for a second-felony offender for the most serious
crime unless the court can give a good reason for exceeding that
benchmark. [Fn. 23] Lonis argues that his composite sentence
should not have exceeded two years of actual imprisonment.
But we conclude that Judge Zervos gave substantial
reasons for imposing the sentence for which he did. At the time of
sentencing, Lonis was 36 years old. Judge Zervos pointed out that,
although it did not count for purposes of presumptive sentencing,
Lonis had a prior felony conviction for possession of hashish with
the intent to deliver. Lonis also had several prior misdemeanor
convictions. In one of these prior incidents, Lonis, carrying a
15-inch steel socket wrench, approached a man and threatened to
kill him. When Lonis was placed under arrest for assault, Lonis
resisted arrest and it took three police officers to subdue him.
An Alaskan state trooper was injured during the arrest when Lonis
repeatedly struck him. The presentence report emphasized that
Lonis had a history of assaults on active duty police officers.
Lonis argued at the trial court and continues to argue on
appeal that he has never seriously injured anyone with his
assaultive behavior. But Judge Zervos directly addressed this
contention. He concluded that, although Lonis had never seriously
injured anyone physically, if Lonis continued his behavior, it was
"just a question of time." He pointed out that Mrs. Allen could
easily have been injured severely if she had merely been in a
different location in her house. He pointed out that the police
had used common sense and restraint in not confronting Lonis when
he threatened them with a weapon. The police merely evacuated
people from the area and waited Lonis out, rather than taking any
chance of escalating the incident. He pointed out that Lonis'
behavior of totally losing control of himself and engaging in
dangerous and assaultive behavior was a consistent pattern which he
had exhibited in the past. He concluded that Lonis was "a
dangerous person" for whom rehabilitation was very guarded. Judge
Zervos' findings are supported by the record and support the
sentence which he imposed.
The order forfeiting Lonis' bail is REVERSED and VACATED.
Lonis' convictions and sentence are AFFIRMED.
FOOTNOTES
Footnote 1:
$4,117.07.
Footnote 2:
AS 12.30.040 (applying AS 12.30.020 to persons who have been
convicted and await sentencing).
Footnote 3:
AS 12.30.020(b)(4)-(5).
Footnote 4:
AS 12.30.020(b)(1).
Footnote 5:
AS 12.30.020(b)(2).
Footnote 6:
AS 12.30.020(b)(3).
Footnote 7:
See Ch. 12 sec.sec. 1-2, SLA 1967.
Footnote 8:
See S. Rep. No. 98-225 at pp. 15-16 (1985) (concerning the
Comprehensive Crime Control Act of 1984): "[T]he Committee was
urged in the last Congress to abolish financial conditions of
release in order to insure that imposition of excessively high
bonds was not used to achieve the detention of dangerous
defendants. Although the Committee and the Senate decided to
retain financial conditions of release, the concern about a
potential for such abuse does exist. Consequently, the use of the
[monetary] conditions of release . . . is specifically limited to
the purpose of assuring the appearance of the defendant.")
Footnote 9:
AS 12.30.070.
Footnote 10:
See Hosier v. State, 957 P.2d 1360, 1363 (Alaska App. 1998).
Footnote 11:
See id.
Footnote 12:
See Sever v. Alaska Pulp Corp., 931 P.2d 354, 361 (Alaska
1996).
Footnote 13:
Criminal Rule 47(b).
Footnote 14:
Ortberg v. State, 751 P.2d 1368, 1375 (Alaska App. 1988).
Footnote 15:
Cano v. Municipality of Anchorage, 627 P.2d 660, 663 (Alaska
App. 1981).
Footnote 16:
AS 01.10.060. Definitions. (a) In the laws of the state,
unless the context otherwise requires,
(8) "person" includes a corporation, company,
partnership, firm, association, organization, business trust, or
society, as well as a natural person[.]
Footnote 17:
AS 11.81.900. Definitions. (a) For the purposes of this title,
unless the context requires otherwise, [Fn. 24]
(42) "person" means a natural person and, when
appropriate, an organization, government, or governmental
instrumentality;
(40) "organization" means a legal entity, including a
corporation, company, association, firm partnership, joint stock
company, foundation, institution, government, society, union, club,
church, or any other group of persons organized for any purpose.
Footnote 18:
In the Alaska Session Laws, Ch. 71, SLA 1992, the purpose of
AS 12.55.045(a) was stated as follows:
Section 1. PURPOSE. It is the purpose
of this Act to ensure full payment of fines imposed in criminal
cases and to make full restitution available to all persons who
have been injured as a result of criminal behavior, to the greatest
extent possible, by
(3) allowing courts to order that
restitution be made to all persons who have suffered a loss as a
result of a defendant's conduct[.] (emphasis added).
Footnote 19:
Zsupnik v. State, 789 P.2d 357, 359 (Alaska 1990).
Footnote 20:
See Dorris v. State, 656 P.2d 578, 583-84 (Alaska App.
1982).
Footnote 21:
AS 11.41.220(d).
Footnote 22:
AS 12.55.125(e) (1) & (2).
Footnote 23:
See Splain v. State, 924 P.2d 435, 437 (Alaska App. 1996);
Farmer v. State, 746 P.2d 1300, 1301 (Alaska App. 1987).
Footnote 24:
The definitions in AS 11.81.900 apply only to title 11. Lonis
does not make this argument. The definitions in AS 11.81.900,
nevertheless, lend support to Judge Zervos's decision.
