                                            NOTICE

      The text of this opinion can be corrected before the opinion is published in the
      Pacific Reporter. Readers are encouraged to bring typographical or other formal
      errors to the attention of the Clerk of the Appellate Courts:
                            303 K Street, Anchorage, Alaska 99501
                                      Fax: (907) 264-0878
                               E-mail: corrections @ akcourts.us

               IN THE COURT OF APPEALS OF THE STATE OF ALASKA


STEPHANIE HAMBURG,
                                                     Court of Appeals No. A-13165
                           Appellant,               Trial Court No. 3AN-17-8564 CR

                    v.
                                                             O P I N I O N
STATE OF ALASKA,

                           Appellee.                  No. 2618 — October 5, 2018


             Appeal from the Superior Court, Third Judicial District,
             Anchorage, Kevin M. Saxby, Judge.

             Appearances: Kevin W. Coe, Assistant Public Advocate,
             Anchorage Criminal Defense Section, and Chad Holt, Public
             Advocate, Anchorage, for the Appellant. A. James Klugman,
             Assistant District Attorney, Anchorage, and Jahna Lindemuth,
             Attorney General, Juneau, for the Appellee.

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

             Judge MANNHEIMER.


             Stephanie Hamburg stands charged with manslaughter and criminally
negligent homicide stemming from the death of her two-year-old daughter, who died of
severe iron deficiency anemia and congestive heart failure. Hamburg’s eligibility for bail
release is governed by the pre-2018 version of Alaska’s bail statute, former AS 12.30.­
011, and Hamburg currently remains in custody pursuant to a “no-bail” order that the
superior court issued under that statute.
              Because Hamburg is charged with manslaughter (a class A felony), her bail
release is governed by subsection (d)(2) of the statute. This subsection declares that
when a criminal defendant is charged with certain types of offenses, including any
class A felony, there is a presumption that the defendant should not be released on bail
— or, in the words of the statute, a “rebuttable presumption that no condition or
combination of conditions will reasonably assure the appearance of the [defendant] or
the safety of the victim, other persons, or the community”.
              This presumption is contrary to Article I, Section 11 of the Alaska
Constitution, “Rights of Accused”. This section of our state constitution guarantees that,
“in all criminal prosecutions”, the accused “is entitled ... to be released on bail, except
for capital offenses when the proof is evident or the presumption great”.
              The Alaska Supreme Court has declared that Article I, Section 11 does not
literally mean that all criminal defendants are entitled to be “released” on bail. But
section 11 (in conjunction with section 12, the provision that prohibits excessive bail)
guarantees that the court must set reasonable conditions of bail release for a defendant
who has not yet been convicted. Martin v. State, 517 P.2d 1389, 1393-95 (Alaska 1974).
              See also Gilbert v. State, 540 P.2d 485, 485-86 (Alaska 1975), where the
supreme court declared that “[Martin] held that an order denying bail to one accused of
a crime, but not yet convicted, was in violation of Article I, Section 11 of the
Constitution of the State of Alaska”.
              The Martin decision involved the 1967 amendments to Alaska’s bail law.
The State argued that these 1967 amendments allowed a court to hold a criminal
defendant without bail if the court found that, no matter what conditions of bail were



                                            –2–                                       2618

imposed, the defendant would continue to “pose a danger to other persons and the
community.” Id. at 1396.
              The supreme court rejected the State’s interpretation, concludingthat it was
inconsistent with the statutory scheme as a whole. Id. at 1396-97. However, the
supreme court added that even if the legislature had intended to allow defendants to be
held without bail, such a statute would have violated the constitutional right of bail
guaranteed by Article I, Section 11 of the Alaska Constitution. Ibid.

                     Our study of Article I, section 11 ... compels a
              conclusion that the Alaska Constitution without doubt
              guarantees to every accused person the right to be released on
              bail except for capital offenses where the proof is evident or
              the presumption great. Some jurisdictions with similar bail
              provisions have created an implied limitation on this
              constitutional right. But in Alaska such an implied limitation
              would necessarily contravene both the plain language of this
              constitutional provision and its intended purpose as stated at
              the constitutional convention.

Martin, 517 P.2d at 1394.
              The 2017 version of AS 12.30.011(d)(2) — the statute at issue in the
present case — establishes a presumption that, when a court is asked to set bail for
certain classes of felony offenders, the court must presume that no conditions of bail will
guarantee the defendant’s appearance at future court proceedings and the safety of the
victim and the public. In other words, the court must presume that the defendant cannot
be released on bail.
              In its brief in the present case, the State urges us to construe this statutory
presumption according to the literal wording of the statute. That is, the State contends
that, for the classes of defendants covered by the statute, a court must presume that the
defendant should not be released on bail under any conditions. According to the State,
                                            –3–                                         2618

the defendant bears the burden of overcoming this presumption by convincing the court
that there are, in fact, conditions of bail that will satisfy the twin goals of assuring the
defendant’s appearance at future court proceedings and protecting the victim and the
public. And until such time as the defendant succeeds in convincing the court that there
are adequate conditions of bail, the defendant is to be held without bail.
              But the Alaska Constitution (unlike the federal constitution) contains a
specific guarantee of pre-conviction bail. If the bail statute were interpreted as the State
proposes, the statute would clearly violate the Alaska Constitution’s guarantee of pre­
conviction bail as interpreted in Martin.
              In prior cases raising this same issue, the State has taken a different
approach to the statute. In those prior cases, the State has suggested that the statutory
presumption against bail release does not place the burden of persuasion on the
defendant. Rather, the State has suggested that the “presumption” against bail release
merely requires defendants to come forward with some articulable bail proposal (i.e., a
proposalthat specifies the defendant’s proposed conditions of release). Accordingto this
alternative interpretation of the statute, once a defendant presents an articulable bail
proposal, the State bears the burden of persuasion — i.e., the burden of convincing the
court that the defendant’s proposed conditions of release are inadequate.
              (For an example of a case where the State has taken this position, see the
State’s bail brief in Vaneyck v. State, Court of Appeals File No. A-13021, and the bail
order that we issued in that case on February 7, 2018.)
              But this alternative interpretation of the statute does nothing to eliminate
the statute’s constitutional infirmity. Even under this alternative reading of the statute,
if the State succeeds in convincing the court that the defendant’s bail proposal is
inadequate, the court is then authorized to hold the defendant without bail until such time



                                            –4–                                        2618

as the defendant succeeds in proposing bail conditions that are satisfactory to the court.
This, too, violates the Alaska Constitution’s guarantee of pre-conviction bail.
             We therefore conclude that the pre-2018 version of AS 12.30.011(d)(2) is
unconstitutional. We direct the trial court to set bail conditions for Hamburg.




                                          –5–                                        2618

