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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


MIKOS C. SIMMONS,
                                                      Court of Appeals No. A-12147
                             Appellant,              Trial Court No. 3AN-12-654 CR

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

                             Appellee.                No. 2442 — February 13, 2015


              Bail Appeal from the Superior Court, Third Judicial District,
              Anchorage, Paul E. Olson, Judge.

              Appearances:    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.

              Judge MANNHEIMER.


              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              We have concluded that, rather than simply issuing an unpublished order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 ½ 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].”

   1
       See Alaska Appellate Rule 204(a)(1).

                                          –2–                                        2442
              The prosecutor’s answer did not satisfy the sentencing judge, and the judge
pressed the prosecutor to declare whether he affirmatively stipulated to Simmons’s bail
release:

                     The Court: [to the prosecutor] I want a clear position
              from you, Counsel. If you’ve made that agreement with [the
              defense attorney], and that’s what he’s depending upon,
              [then] I’m going with it. Otherwise, [Simmons] is going to
              be remanded [to custody]. I leave that up to you, and your
              relationship with [the defense attorney], and what you’ve
              agreed.

              [A whispered conversation occurs between the attorneys.]

                     Prosecutor: The State does not stipulate to the release.

                     The Court: Then I’m going to have him remanded.

              The judge’s handling of this matter violated AS 12.30.040(a). Under the
provisions of this statute, Simmons is entitled to be released on bail pending appeal if he
“establishes, by clear and convincing evidence, that [he] can be released under conditions
that will reasonably assure [his] appearance ... and the safety of ... other persons ... and
the community.”
              But rather than listening to Simmons’s arguments regarding bail release,
the judge declared that he would remand Simmons to custody unless the prosecutor
stipulated that Simmons should be released on bail. In other words, the judge effectively
granted the prosecutor unilateral power to decide whether Simmons should be released
or jailed — regardless of the merits of Simmons’s arguments in favor of bail release.
This was unlawful.




                                           –3–                                         2442

       Conclusion


              The superior court’s decision to deny post-conviction bail to Simmons is
REVERSED. We direct the superior court to consider, pursuant to the provisions of
AS 12.30.040(a), whether one or more conditions of release will assure Simmons’s
continued appearance and the safety of the public. We further direct the superior court
to take into consideration the State’s position that bail release is appropriate in this case.




                                            –4–                                         2442

