State v. Wassillie
| Citation | 606 P.2d 1279 |
| Decision Date | 29 February 1980 |
| Docket Number | No. 3603,3603 |
| Parties | STATE of Alaska, Petitioner, v. Teddy WASSILLIE, Respondent. |
| Court | Supreme Court of Alaska (US) |
Norman A. Cohen, Legal Intern, Victor C. Krumm, Dist. Atty., Bethel, Avrum M. Gross, Atty. Gen., Juneau, for petitioner.
Allan Beiswenger, Asst. Public Defender, Bethel, Brian Shortell, Public Defender, Anchorage, for respondent.
Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, BURKE and MATTHEWS, JJ.
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 Wassillie'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 appeal 16 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.
I disagree with the majority's holding that the right to bail under the Alaska Constitution extends only to adjudication of guilt. I also disagree with the majority that it need not consider the other basis for the superior court's denial of the state's motion to return Wassillie to custody pending sentencing.
Here the majority concludes that the relevant clause in the Alaska Constitution should be construed in conformity with the bail provisions of most other states. But these jurisdictions have separate sections in their constitution pertaining to the subject of bail. Generally, these provisions regarding the right to bail, as the majority notes, provide that: "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." 1
The Alaska constitutional provision is not of this form. Only in Alaska and Connecticut 2 is the right to bail made part of the constitutional provision enumerating the various rights of an accused. The Alaska Constitution, article I, section 11 provides:
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 than 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.
I am convinced that this distinctive context calls forth other principles of constitutional construction in determining issues raised in the instant matter. 3 For "(t)he general rule in constitutional construction is to give import to every word and make none nugatory." Hootch v. Alaska State Operated School System, 536 P.2d 793, 801 (Alaska 1975) (footnote omitted).
It is clear that of the enumerated rights in this section of Alaska's Constitution, other than the right to bail, neither the accused's right to counsel nor the right to a speedy trial is extinguished once a determination of guilt has been made. 4 Under the Sixth Amendment to the Constitution of the United States, it is provided that "in all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the Supreme Court held that the right to counsel in a state criminal prosecution exists at every stage in the proceeding. Subsequently, in Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), the Court explicitly recognized that sentencing is a critical stage of a criminal prosecution in which the presence of counsel is required. 6 Concerning the right to a speedy trial, we noted in Gonzales v. State, 582 P.2d 630 (Alaska 1978), that the language of the Sixth Amendment to the United States Constitution and article 1, section 11 of the Alaska Constitution is identical. We held in Gonzales that sentencing delays are governed by both the federal and Alaska constitutional guarantees of a speedy trial. 7 These decisions dealing with an accused's rights to a speedy trial and to the assistance of counsel in my opinion point to an appropriate resolution of this petition.
Relevant judicial precedent is sparse. None of the cases I have reviewed treat specifically the phraseology of the "ac...
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