Lonis v. State

• Decision Date: 18 February 2000
• Docket Number: No. A-7409., No. A-6974
• Citation: 998 P.2d 441
• Parties: Michael F. LONIS, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

998 P.2d 441

Michael F. LONIS, Appellant, v. STATE of Alaska, Appellee.

Nos. A-6974, A-7409.

Court of Appeals of Alaska.

February 18, 2000.

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.

OPINION

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,¹ the judge ordered forfeiture of $4,500 of Lonis' $5,000 bond.

Bail release before trial and after conviction is governed by AS 12.30.020.² 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.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,⁴ to remain in particular locales or residences,⁵ or to spend nights in custody.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,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. § 3142, specifically intended that monetary bail be imposed only to assure a defendant's appearance.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.⁹ But, with respect to bail forfeiture, AS 12.30.060 and Criminal Rule 41 speak of imposing this penalty for...