State v. Wassillie

606 P.2d 1279, 1980 Alas. LEXIS 674

• Court: Alaska Supreme Court
• Decided: February 29, 1980
• Docket: 3603
• Status: Published

Opinions

OPINION

MATTHEWS, Justice.

Respondent Teddy Wassillie was indicted for the crimes of assault with a dangerous weapon, assault with intent to commit rape, and rape. Guilty verdicts were returned as to each count. The superior court then ordered that a presentence investigation be conducted and a presentence report filed. Sentencing was scheduled to be held in approximately thirty days.

Following the return of the jury’s verdicts, Wassillie requested that he be continued on release status until sentencing. The request was granted. Shortly thereafter, the state moved for an order revoking Was-sillie’s release and remanding him to custody. The state based its motion on the provisions of AS 12.30.040(b). That statute provides:

Notwithstanding the provisions of (a) of this section, if the offense a person has been convicted of is first degree murder, armed robbery, kidnapping, or rape (as defined in AS 11.15.130), he may not be released on bail either before sentencing or pending appeal.

The superior court denied the state’s motion on the ground that the statute “as applied to this case . . . is an unconstitutional infringement of the right to bail” and upon the further ground that under Alaska Rule of Criminal Procedure 32(a), it was vested with discretion to continue Wassillie on release status.¹

Thereafter the state petitioned for review, asserting that the constitutional right to bail terminated upon the adjudication of guilt and that Alaska Rule of Criminal Procedure 41(a)² mandates that AS 12.30.-040(b) apply. We have granted review in full ■ recognition of the fact that Wassillie has now been sentenced.³ Substantively, this petition “involve[s] [an] important recurring issues of law which may be capable of evading review.”⁴ We have therefore decided to exercise our discretionary review authority despite the fact that the case is moot as to Wassillie.

We limit our review to the question whether the bail clause of the Alaska Constitution applies after the conviction of a person accused of a crime.⁵ The alternative basis for the decision of the superior court, that the court has the discretionary power to admit one convicted of rape to bail under Alaska Rule of Criminal Procedure 32(a), involves the question whether the right to bail is procedural within the meaning of article IV, section 15 of the Alaska Constitution,⁶ and, if so, whether Alaska Rule of Criminal Procedure 41(a) which was promulgated in 1973 may be interpreted as encompassing subsequent changes in the statutes which it has incorporated. The briefing on these points is entirely inadequate, and therefore this aspect of the superior court’s decision will not be reviewed.⁷

In Martin v. State,8 we held that the right to bail does not extend to probation revocation proceedings. We stated: “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.”⁹ In distinguishing the two types of proceedings we noted that “[a] probation revocation hearing is not a criminal prosecution looking toward an adjudication of guilt or innocence.” ¹⁰ Although this language lends support to the state’s position that the right to bail extends only to the “adjudication of guilt or innocence,” it is not dispositive of this petition.¹¹

The right to bail was not an original concept of the framers of the Alaska Constitution. Provisions establishing bail as a matter of constitutional right are contained in the constitutions of most, and perhaps all, American states.¹² The usual provision reads, with slight variations from state to state: “All persons shall be bailable by sufficient sureties, except for capital offenses, when the proof of guilt is evident, or the presumption thereof is great.” ¹³

Such clauses are similar to the bail clause contained in article I, section 11 of the Alaska Constitution which provides: “The accused is entitled . . . to be released on bail, except for capital offenses when the proof is evident or the presumption great If anything, they lend themselves more readily to a construction that they apply to post conviction bail than does our bail clause, since they refer to “all persons” and ours is limited to “the accused.” However, the uniform interpretation they had received when the Alaska Constitution was drafted and approved was that they applied only to bail before a conviction.¹⁴ There is no indication either in the language of the constitution or the minutes of the constitutional convention that the framers of the Alaska Constitution meant to deviate from this broadly accepted interpretation.¹⁵ If a result at variance with the historic experience of our sister states were intended, the framers would have found the words to express it. Far from doing so, they chose largely customary phraseology which everywhere else had been taken to be a grant of the right to bail only before a conviction. It is plain to us that the framers of our constitution intended the same result.

We reject the argument expressed by the dissenting opinion that each of the rights enumerated in article I, section 11 of the Alaska Constitution must terminate at the same point in the course of a criminal case. We see no compelling reasons why, for example, the right to counsel, the speedy trial right, and the right to bail should share the same point of termination because these rights serve separate and largely unrelated purposes. Moreover, even under the dissenting opinion, they do not share -a common termination point because the right to counsel continues through an appeal¹⁶ while, according to the dissent, the right to bail terminates when sentencing has been completed.

For these reasons we hold that the bail clause in our constitution does not afford a right to post-conviction bail.

1 . Alaska R.Crim.P. 32(a) provides in relevant part that “[p]ending sentence the court may commit the defendant or continue or alter the bail.”

2 . Alaska R.Crim.P. 41(a) provides that “[t]he defendant in a criminal proceeding is entitled to be admitted to bail pursuant to AS 12.30.010-12.30.080.”

³

. On September 23, 1977, Wassillie was sentenced to a term of imprisonment of eight years, with six and a half years suspended. He was then immediately remanded to custody to begin serving his term of imprisonment. An opinion was issued in connection with the state’s sentence appeal from the sentence given Wassillie. See State v. Wassillie, 578 P.2d 971 (Alaska 1978).

4 . Martin v. State, 517 P.2d 1389, 1391 (Alaska 1974) (footnote omitted). See Doe v. State, 487 P.2d 47 (Alaska 1971); In re 483 P.2d 1006 (Alaska 1971); RLR v. State, 487 P.2d 27 (Alaska 1971).

5 . Alaska Const. Art. I, § 11 provides:

Rights of Accused. In all criminal prosecutions, the accused shall have the right to a speedy and public trial, by an impartial jury of twelve, except that the legislature may provide for a jury of not more than twelve nor less th'an six in courts not of record. The accused is entitled to be informed of the nature and cause of the accusation; to be released on bail, except for capital offenses when the proof is evident or the presumption great; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

6 . Alaska Const. Art. IV, § 15 provides:

Rule-Making Power. The supreme court shall make and promulgate rules governing the administration of all courts. It shall make and promulgate rules governing practice and procedure in civil and criminal cases in all courts. These rules may be changed by the legislature by two-thirds vote of the members elected to each house.

7 . The state’s “Petition for Review” does not mention these issues at all. In its “Supplemental Petition for Review” the entire treatment given them is as follows:

The legislature has the authority to extend bail to convicted individuals, and it has done so on certain limited situations. This right of bail is statutory, not constitutional, in origin. It is also substantive in nature, so that courts do not have authority to disregard the plain words of the statute, or alter the statute by procedural rules.

This court has repeatedly stated that inadequately briefed issues will not be considered. See e. g., L.E. Spitzer Co. v. Barron, 581 P.2d 213, 218 (Alaska 1978); Wetzler v. Wetzler, 570 P.2d 741, 742 n.2 (Alaska 1977); Kristich v. State, 550 P.2d 796, 804 (Alaska 1976); Wernberg v. Matanuska Elec. Ass’n, 494 P.2d 790, 794 (Alaska 1972); Lewis v. State, 469 P.2d 689, 691-92 n.2 (Alaska 1970).

8 . 517 P.2d 1389, 1398 (Alaska 1974).

9 . Id. (footnote omitted).

10 . Id. (footnote omitted). Martin was cited in Gilbert v. State, 540 P.2d 485, 486 (Alaska 1975) for the proposition that “an order denying bail to one accused of a crime, but not yet convicted," was in violation of Alaska Const, art. I, § 11.

11 . This court’s definition of “criminal prosecu-1 tion” as used in Alaska Const, art. I, § 11 does not indicate at what point the right to bail terminates. See, e. g., Alexander v. City of Anchorage, 490 P.2d 910 (Alaska 1971); RLR v. State, 487 P.2d 27 (Alaska 1971); State v. Browder, 486 P.2d 925 (Alaska 1971); Baker v. City of Fairbanks, 471 P.2d 386, 397 (Alaska 1970).

12 . See State v. Flowers, 330 A.2d 146, 147 (Del.1974). See also Annot. 19 A.L.R. 807 (1922) and Annot. 77 A.L.R. 1237 (1932).

13 . Ex Parte Herndon, 18 Okl.Cr. 68, 192 P. 820 (1920). See, e. g., In re Podesto, 15 Cal.3d 921, 127 Cal.Rptr. 97, 544 P.2d 1297 (1976); State v. Flowers, 330 A.2d 146 (Del.1974); Ex Parte Heath, 227 Mo. 393, 126 S.W. 1031 (1910); Ex Parte Halsey, 124 Ohio St. 318, 178 N.E. 271 (1931); State v. Helton, 72 Wyo. 105, 261 P.2d 46 (1953).

14 . “The constitutional provision . . does not refer to cases wherein a conviction has been had in a court of competent jurisdiction.” Ex Parte Herndon, 18 Okl.Cr. 68, 192 P. 820, 821 (1920). See e. g., Ex Parte Voll, 41 Cal. 29 (1871); Ex Parte Schriber, 19 Idaho 531, 114 P. 29 (1911); Braden v. Lady, 276 S.W.2d 664 (Ky.1955); Ex Parte Heath, 227 Mo. 393, 126 S.W. 1031 (1910); State v. Bradsher, 189 N.C: 401, 127 S.E. 349 (1955); Ex Parte Halsey, 124 Ohio St. 318, 178 N.E. 271 (1931); City of Sioux Falls v. Marshall, 48 S.D. 378, 204 N.W. 999 (1925); Hicks v. State, 179 Tenn. 601, 168 S.W.2d 781 (1943); Ex Parte Berry, 198 Wash. 317, 88 P.2d 427 (1939); State v. Helton, 72 Wyo. 105, 261 P.2d 46 (1953). Contra, New Orleans v. Lacoste, 169 La. 717, 125 So. 865 (1930) (This decision is based on an express provision of the Louisiana Constitution providing for post conviction bail as a matter of right). ”

15 .In fact the minutes of the constitutional convention reflect a desire to follow the experience of the other states concerning the right to bail. Thus delegate Victor Fischer stated, in virtually the only recorded comment made to the constitutional convention concerning the bail clause:

The language in the Federal Constitution reads generally to the effect that excessive bail shall not be required. A number of states have changed that language to provide more or less the language we have, that the accused may be released on bail except for capital offenses. But in practically every case where this new language is used, the words “when, proof is evident and the presumption great” [sic] and that is a necessary protection for the accused and we should follow the majority of the states in this case. It has proven a desirable practice. The actual determination of when a person is released on bail, if charged with a capital offense, is still up to the judge. [Emphasis added].

2 Proceedings of the Alaska Constitutional Convention 1344-45 (Jan. 6, 1956).

16 . Douglas v. California, 372 U.S. 353, 356, 83 S.Ct. 814, 816, 9 L.Ed.2d 811, 814 (1963).

5 . The text of article 1, section 11 of the Alaska Constitution parallels that of the Federal Sixth Amendment.