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Simmons v. State

Court of Appeals of Alaska

February 13, 2015

MIKOS C. SIMMONS, Appellant,
v.
STATE OF ALASKA, Appellee

Bail Appeal from the Superior Court, Third Judicial District, Anchorage, Paul E. Olson, Judge. Trial Court No. 3AN-12-654 CR.

Vikram N. Chaobal, Anchorage, for the Appellant.

Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.

Before: Mannheimer, Chief Judge, and Allard, Judge.

OPINION

Page 834

MANNHEIMER, Judge.

Mikos C. Simmons asks this Court to review the superior court's refusal to set conditions of bail pending appeal. The State has announced that it does not oppose Simmons's bail release, " so long as appropriate conditions of release are [imposed]". In other words, the parties agree that we should remand this case to the superior court for the setting of bail.

We have concluded that, rather than simply issuing an unpublished order resolving this bail appeal, we should instead employ a published opinion to explain our decision in this case -- because our review of the record shows that the superior court's handling of the bail issue departed substantially from the procedures and substantive law that govern post-conviction bail.

Following a jury trial, Simmons was convicted of fourth-degree controlled substance misconduct, and the superior court sentenced him to 42 months' imprisonment with 12 months suspended ( i.e., 30 months to serve).

Right after the superior court imposed this sentence, Simmons's attorney asked the court to stay the sentence for 30 days, to give Simmons time to perfect an appeal. The defense attorney pointed out that Simmons had been on bail release (apparently, without incident) for approximately 2 1/2 years before sentencing, and the defense attorney also pointed out that Simmons had 30 days to file an appeal.[1]

When the sentencing judge asked the prosecutor for the State's position on Simmons's request, the prosecutor told the judge that he did not oppose the stay.

In response, the sentencing judge declared that " [his] policy has always been that, once a person is sentenced, ... they should be remanded [to custody] and start serving their time." The judge added that " if [a defendant is] entitled to [a] stay of the sentence for whatever reason, then that [stay] should be obtained from the Court of Appeals."

The judge then told the parties that he would grant the requested stay if -- and only if -- the prosecutor stipulated that Simmons was entitled to bail release under the provisions of AS 12.30.040(a) (the statute that governs post-conviction bail). The prosecutor replied, " I wouldn't say I'm stipulating to it. I'm saying [that] I'm not going to argue [against it]."

The prosecutor's answer did not satisfy the sentencing judge, and the judge pressed the prosecutor to declare whether he affirmatively ...


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