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Bourdon v State (07/20/2001) ap-1754
Bourdon v State (07/20/2001) ap-1754
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
EUGENE J. BOURDON, )
) Court of Appeals Nos. A-7689/7699
Appellant, ) Trial Court No. 1PE-97-67 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1754 - July 20, 2001]
)
Appeal from the Superior Court, First Judicial
District, Petersburg, Larry C. Zervos, Judge.
Appearances: Michael P. Heiser, Ketchikan,
for Appellant. Kenneth M. Rosenstein, 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.
COATS, Chief Judge.
This is a bail appeal. A jury convicted Eugene J. Bourdon
of four counts of sexual abuse of a minor in the second degree, a
class B felony. [Fn. 1] Bourdon applied for bail pending appeal,
but the superior court found that Bourdon was ineligible for bail
pending appeal under AS 12.30.040(b)(2) because he had a prior
felony conviction for attempted sexual assault in the second degree,
a class C felony. [Fn. 2] Bourdon appeals to this court, arguing
that AS 12.30.040(b)(2) violates his constitutional right to equal
protection. We agree with Bourdon that the statute violates equal
protection and we remand this case to the superior court to
reconsider bail.
Overview of the statute
Alaska Statute 12.30.040(b) denies post-conviction bail
to three different groups of offenders. Under AS 12.30.040(b)(1),
all defendants (even first felony offenders) convicted of
unclassified or class A felonies are denied bail pending appeal.
Under AS 12.30.040(b)(2), bail pending appeal is also denied to
defendants convicted of class B and C felonies if the defendants
have a prior felony conviction for an unclassified or a class A
felony. Finally, AS 12.30.040(b)(2) expands this denial of post-
conviction bail to defendants convicted of class B and class C
felonies if the defendants have a prior conviction for certain other
felonies: first-degree stalking (AS 11.41.260), or the class B and
class C sexual felonies codified in AS 11.41.420 - 425 (second- and
third-degree sexual assault) and AS 11.41.436 - 438 (second- and
third-degree sexual abuse of a minor).
When the legislature enacted AS 12.30.040(b)(2), it
declared that the purpose of the legislation was "to restrict the
availability of bail after conviction for certain felons." [Fn. 3]
The legislature specifically noted [Fn. 4] this court's decision in
Stiegele v. State, [Fn. 5] where we held that the legislature could
constitutionally restrict or deny bail release to a defined class
of "dangerous . . . persons" convicted of crimes that carry the most
serious penalties. [Fn. 6]
Does AS 12.30.040(b)(2) include attempts?
The first question that we must address is whether Bourdon
falls within the provisions of AS 12.30.040(b)(2) that is, whether
this statute prohibits Bourdon's post-conviction bail release.
Bourdon's prior offense was for attempted sexual assault in the
second degree. Although sexual assault in the second degree is one
of the felonies listed in AS 12.30.040(b), attempted sexual assault
in the second degree is not. The question before us is whether the
legislature intended the statute to apply to attempts to commit the
offenses listed in AS 12.30.040(b).
Judge Mannheimer and Judge Stewart conclude that AS
12.30.040(b)(2) should be interpreted to include defendants
previously convicted of an attempt to commit one or more of the
felonies listed in the statute. My colleagues reason that, although
the statute does not expressly mention attempts, the legislative
history of the statute (which we explain in considerable detail in
the next section of this opinion) demonstrates that the legislature
was concerned about the dangerousness and the recidivism of sex
offenders. My colleagues conclude that, with regard to
dangerousness and recidivism, there is little distinction between
defendants who have committed one or more of the listed felonies and
defendants who have attempted to do so.
My colleagues note that, to be convicted of attempt, a
defendant must have intended to perform the completed crime and must
have engaged in a substantial step toward the completion of that
crime. [Fn. 7] Because of this mental state and this conduct, my
colleagues reason, the defendant has shown himself to be equally as
dangerous as an offender who completes the crime. As this court
pointed out in Mack v. State, [Fn. 8] Alaska's law of attempts is
premised "on the doctrine that voluntas reputabitur pro facto the
intention is to be taken for the deed." [Fn. 9] We noted:
The commentary to the Model Penal Code, which
classifies most attempts as the same grade of crime as the completed
offense, points out that . . . the bases for sentencing are
[generally] the same whether the crime is completed or only
attempted. "To the extent that sentencing depends upon the
antisocial disposition of the actor and the demonstrated need for
a corrective sanction, there is likely to be little difference in
the gravity of the required measures depending on the consummation
or failure of the [criminal's] plan." [Fn. 10]
Based on this analysis, my colleagues conclude that the
legislative intent behind AS 12.30.040(b)(2) will be defeated unless
the statute is interpreted to include attempts as well as completed
sexual felonies.
In my view, Mack v. State is distinguishable. In Mack,
we found clear legislative intent to ban courts from granting a
suspended imposition of sentence to all sex offenders. [Fn. 11]
Bourdon's case is more like George v. State, [Fn. 12] where we
applied the general rule of statutory construction that ambiguities
in criminal statutes should be narrowly read and construed strictly
against the government. [Fn. 13]
The legislative history of AS 12.30.040(b) does not show
that the legislature intended to include anything but the listed
crimes in the ban on post-conviction bail. Under these
circumstances, I would apply the rule of statutory construction that
criminal statutes should be strictly construed against the
government. Bourdon's prior conviction for attempted sexual assault
in the second degree is not one of the prior offenses set out in AS
12.30.040(b). I do not believe we should expand the statute to
include attempts without clearer direction from the legislature.
Accordingly, I would hold that the superior court erred in
concluding that Bourdon was not entitled to bail under AS
12.30.040(b).
Because the majority of the court concludes that Bourdon's
prior conviction for attempted sexual assault in the second degree
precludes his admission to post-conviction bail under AS
12.30.040(b), we must next address Bourdon's contention that the
statute violates equal protection. On this issue, the members of
this court are unanimous: the statute is unconstitutional.
Does AS 12.30.040(b)(2) violate equal
protection?
In determining whether a statute violates equal
protection, we are to determine whether a legislative classification
treating some people differently from others can be justified:
When adjudicating an equal protection claim
under Article I, Section 1 of the Alaska Constitution, the basic
question is whether similarly situated people are being treated the
same. Often (as in this case), it is clear that the legislature is
treating some people differently from others, and the court's real
task is to assess whether this different treatment is justifiable.
We must ask why the legislature chose to treat the two groups
differently, and whether there is in fact a relevant difference
between them. If so, then our next task is to examine how the
legislature's classification hurts the disadvantaged group of people
and to judge the significance of this legislated disadvantage. If
the legislature's action adversely affects important individual
rights, then the legislature's goal must be correspondingly
important, and the classification drawn by the statute must be
closely tailored to achieving that goal. Conversely, if the
legislation affects only lesser rights or interests, then the
legislation can rest on a lesser goal, and the means chosen to
achieve that goal can be less precise. [Fn. 14]
In Griffith v. State, [Fn. 15] we concluded that both the
state and the defendant had substantial rights at stake when the
defendant applied for bail pending appeal. [Fn. 16] We recognized
that the state had substantial reasons for limiting bail pending
sentencing and appeal to assure the defendant's appearance and
compliance with further orders of the court, and to protect the
community. [Fn. 17] On the other hand, we recognized that denial
of bail pending appeal had a significant impact on a defendant
"the possibility of wrongful detention, the loss of income, the
diminution of investigative opportunities, and the impairment of the
family relationship." [Fn. 18]
We have grave difficulties with the section of AS
12.30.040(b)(2) that denies post-conviction bail to a defendant
convicted of a class B or class C felony if the defendant has a
prior conviction for first-degree stalking or for a class B or class
C sexual felony. Based on the minutes of the House and Senate
Judiciary Committees, the impetus for this provision was an incident
in which a man with a prior history of sexual assault was charged
with a drug felony and was released on bail, whereupon he assaulted
two more women. [Fn. 19] The legislature's implicit rationale for
enacting this restriction on bail release was that people who commit
sexual assault or sexual abuse of a minor (or the related crime of
stalking) are so dangerous that they should not be trusted on bail.
But if the rationale of AS 12.30.040(b)(2) is the
perceived dangerousness of sexual offenders, the statute applies
this rationale in a seemingly irrational manner. Under AS
12.30.040(b)(2), a defendant's prior conviction of a sexual felony
will disqualify that defendant from bail, but a defendant's current
conviction of a sexual felony has no effect.
The statute declares that if a defendant has a prior
conviction for a class B or class C sexual felony, the defendant
will be ineligible for bail if that defendant is later convicted of
any class B or class C felony for example, burglary, or first-
degree vehicle theft, or possession of one pound of marijuana. But
if the chronological order of these convictions is reversed that
is, if the defendant has a prior conviction for burglary, first-
degree vehicle theft, or possession of one pound of marijuana, and
the defendant's current conviction is for a class B or class C
sexual felony then the statute does not apply, and the defendant
remains eligible for bail release even though the defendant is
assumedly just as dangerous (by virtue of having committed a sexual
felony).
One might argue that the legislature believed that a prior
conviction carries more weight, since a current conviction might
still be overturned on appeal. But the wording of AS 12.30.040
undercuts this argument; the statute does not limit itself to
convictions that have been tested on appeal. Paragraph (b)(1) of
the statute denies bail to all defendants convicted of unclassified
or class A felonies, even though the defendants' appeals have not
been heard. And paragraph (b)(2) of the statute applies to all
defendants who have a prior conviction for a class B or class C
sexual felony, even when the defendants are contemporaneously
pursuing appeals of those sexual felony convictions. In
short, we are unable to discern a reasonable basis for denying bail
to second felony offenders with prior convictions for sexual
felonies while at the same time granting bail to second felony
offenders with current convictions for those same sexual felonies.
As we stated in Griffith v. State, "The legislature may certainly
deny post-conviction bail to dangerous offenders, but if it does so,
it must act in an evenhanded manner." [Fn. 20] We conclude that the
section of AS 12.30.040(b)(2) at issue in this case the section
that denies post-conviction bail to second felony offenders
previously convicted of one of the listed sexual felonies violates
the equal protection clause of the Alaska Constitution.
The decision of the superior court is REVERSED, and this case
is remanded to the superior court with directions to determine
Bourdon's eligibility for bail under AS 12.30.040(a).
FOOTNOTES
Footnote 1:
AS 11.41.436(a)(2), (b).
Footnote 2:
AS 11.31.100(a), (c)(4); AS 11.41.436(a), (b).
Footnote 3:
Ch. 50, sec. 1, SLA 1995.
Footnote 4:
See id.
Footnote 5:
685 P.2d 1255 (Alaska App. 1984).
Footnote 6:
Id. at 1258 (quoting Griffith v. State, 641 P.2d 228, 234
(Alaska App. 1984)).
Footnote 7:
See AS 11.31.100(a).
Footnote 8:
900 P.2d 1202 (Alaska App. 1995).
Footnote 9:
Id. at 1204 n.2 (quoting 2 Wayne R. LaFave & Austin W. Scott, Jr.,
Substantive Criminal Law sec. 6.2(a), at 18 (1986)).
Footnote 10:
Mack, 900 P.2d at 1204 n.2 (quoting American Law Institute, Model
Penal Code and Commentaries sec. 5.05, comment at p. 490 (1985)).
Footnote 11:
900 P.2d at 1204.
Footnote 12:
988 P.2d 1116 (Alaska App. 1999).
Footnote 13:
See id. at 1117-18; State v. Andrews, 707 P.2d 900, 907 (Alaska
App. 1985), aff'd, 723 P.2d 85 (Alaska 1986); 3 Norman J. Singer,
Sutherland Statutory Construction, sec.sec. 59.03, 59.04, 59.06 (5th ed.
1992).
Footnote 14:
State v. Ladd, 951 P.2d 1220, 1224 (Alaska App. 1998)
(citations omitted).
Footnote 15:
641 P.2d 228 (Alaska App. 1982).
Footnote 16:
See id. at 234.
Footnote 17:
See id.; see also Stiegele v. State, 685 P.2d 1255, 1257
(Alaska App. 1984).
Footnote 18:
Griffith, 641 P.2d at 234 (citation omitted).
Footnote 19:
See Committee Minutes, Senate Judiciary Committee Hearing on
S.B. 7 (March 8, 1995); Committee Minutes, House Judiciary Committee
Hearing on S.B. 7 (April 22, 1995); Committee Minutes, Senate
Judiciary Committee Hearing on S.B. 228 (March 30, 1994) (S.B. 228
was the identical predecessor bill of S.B. 7).
Footnote 20:
641 P.2d at 234.
