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Shepersky v. State (6/9/2017) ap-2558

Shepersky v. State (6/9/2017) ap-2558

                                                                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  



TRENTON L. SHEPERSKY,  

                                                                                  Court of Appeals No. A-12766  

                                           Appellant,                           Trial Court No. 3PA-15-1783 CR  



                                 v.  

                                                                                               O P I N I O N  

STATE OF ALASKA,  



                                           Appellee.                                  No. 2558 - June 9, 2017  



                      Appeal f             

                                   rom the Superior Court, Third Judicial District, Palmer,  

                      Jonathan A. Woodman, Judge.  



                      Appearances: Gavin Kentch, Law Office of Gavin Kentch, LLC,  

                                                                                         

                      Anchorage,  for  the  Appellant.    Shawn  D.  Traini,  Assistant  

                      District  Attorney,  Palmer,  and  Jahna  Lindemuth,  Attorney  

                                                                  

                      General, Juneau, for the Appellee.  



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

                                                                  

                      Superior Court Judge. *  

                                                            



                      Judge ALLARD.  



                      This is an appeal of a superior court's order denying the defendant bail                                         



pending a sentence appeal.                   For the reasons explained here, we vacate the court's order                             



      *    Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  



Constitution and Administrative Rule 24(d).  


----------------------- Page 2-----------------------

 and remand this issue to the superior court for reconsideration of the defendant's request                                                                                                                                                                                                                                                                                                                        



in light of the guidance provided here.                                                                                                                                  



                                  Relevant facts and prior proceedings                                                                                          



                                                                    Pursuant to a partial plea agreement, Trenton L. Shepersky pleaded guilty                                                                                                                                                                                                                                                                             



to   one   count   of   criminally   negligent   homicide   based   on   a   fatal   car   collision   that  



 Shepersky   asserts was caused                                                                                                                                by   an  epileptic seizure.                                                                                                         At sentencing,                                                                      Shepersky's  



 attorney argued for a sentence of 1 to 3 years to serve.                                                                                                                                                                                                                                   The superior court imposed a                                                                                                                         



 sentence of 9 years' imprisonment with 5 years suspended, 4 years to serve.                                                                                                                                                                                                                                                                                                                    Shepersky  



has   filed   a   sentence   appeal   challenging   his   sentence   as   excessive.     That   appeal   is  



currently in the briefing stage; Shepersky has not moved for expedited consideration of                                                                                                                                                                                                                                                                                                                                                      



the appeal.   



                                                                    Prior   to   his   remand   date,   Shepersky   asked   the   superior  court   for   bail  



pending appeal, requesting that he remain out of custody pending the resolution of his                                                                                                                                  



 sentence appeal. During the course of his case in the superior court, Shepersky remained                                                                                                                                                                                                                                                                                                                



out of custody on bail release for nearly two years without incident.                                                                                                                                                                                                                                                                                       In his application                 



 for bail pending appeal, Shepersky proposed bail conditions that were more restrictive                                                                                                                                                                                                                                                                                                             



than his prior pretrial bail conditions.                                                                                                                                                        Specifically, he proposed that he be released on  



 electronic monitoring and house arrest, and that he be subject to random drug and                                                                                                                                                                                                                                                                                                                    



 alcohol testing.   



                                                                    The State did not oppose Shepersky's request for bail pending appeal, but                                                                                                                                                                                                                                                                                          



                                                                                                                                                                                                                                                1  

the prosecutor notified the court that the victim                                                                                                                                                                                                                                                                                                                                                                                                            

                                                                                                                                                                                                                                                      strongly opposed Shepersky's release.  



                  1               Under Alaska law, the term "victim" includes familymembers of the deceased victim.                                                                                                                                                                                                                                    



See AS 12.55.185(19)(C).  



                                                                                                                                                                                                                 - 2 -                                                                                                                                                                                                        2558
  


----------------------- Page 3-----------------------

                                                    The superior court denied Shepersky's request for bail pending appeal. In                                                                                                                                                                                                          



its order, the superior court acknowledged that the proposed bail conditions "would be                                                                                                                                                                                                                                                



 sufficient to guarantee [Shepersky's] further appearance."                                                                                                                                                                      However, the court declared                                                   



that it was not convinced that "the proposed conditions are sufficient to ensure the safety                                                                                                                                                                                                                              



of the community."                                                             The court did not provide any explanation for this finding.                                                                                                                                                                                   The  



court also declared that it was "plac[ing] weight on the victim's opposition to the request,                                                                                                                                                                                                                      



respecting their desire for finality and the immediate imposition of sentence to convey                                                                                                                                                                              



the appropriate                                            condemnation of                                                   the community and to prevent othersfromexperiencing                                                                                                              



 similar loss."   



                                                    Shepersky now appeals this bail ruling.                                                                                        



                         Alaska law on bail pending a sentence appeal                                                                                                             



                                                    Under AS 12.30.040(a), a trial court may grant bail pending appeal "if the                                                                                                                                                                                                      



person establishes, by clear and convincing evidence, that the person can be released                                                                                                                                                                                                                          



under conditions that will reasonably assure the appearance of the person and the safety                                                                                                                                                                                                                                 

of   the   victim,   other   persons,   and   the   community."2  

                                                                                                                                                                                                                                                                                                                                      

                                                                                                                                                                                                                        Although  the  statute  refers  to  



                                                                                                                                                                                                                                                                                            

"appeal" in general terms, Alaska courts have previously interpreted the requirements  



                                                                                                                                                                                                                                                                                             3  

                                                                                                                                                                                                                                                            

of AS 12.30.040 to apply only to requests for bail pending merit appeals. 



             2            See also  Alaska R. App. P. 206(b).  



             3  

                                                                                                               

                          See Dobrova v. State, 674 P.2d 834, 835 (Alaska App. 1984) aff'd, 694 P.2d 157  

(Alaska 1985); but see State v. Dobrova, 694 P.2d 157, 159-60 (Alaska 1985) (Compton, J.,  

concurring) (concluding that AS 12.30.040 applies to all requests for bail pending appeal,  

regardless of whether the appeal is a merit appeal or a sentence appeal).  



                                                                                                                                                               -  3 -                                                                                                                                                       2558
  


----------------------- Page 4-----------------------

                      In  Dobrova v. State              , this Court held that trial courts have a common-law                    



                                                                                 4  

authority to grant bail pending a sentence appeal.                                                                                 

                                                                                    The Alaska Supreme Court affirmed  



                     5  

                                                                                                                                   

this holding.           However, neither this Court nor the Alaska Supreme Court has provided  



                                                                                                                                      

much guidance on how this common-law authority should be exercised, or what factors  



                                                                                      

a trial court should consider when deciding such a request.  



                                                                                                                                           

                      Later decisions by this Court have indicated that the requirements and  



                                                                                                                            

restrictions that apply to a request for bail pending a merit appeal under AS 12.30.040(a)  



                                                                                                      6  

                                                                                                                                              

also apply to a request for bail pending a sentence appeal.                                               But in our decision in  



                                                                                                                                   

Dobrova, this Court also indicated that the trial court had the discretion to consider  



                                                                                                                                        

factors outside the traditional factors of flight risk and safety of the community when  



                                                                                          7  

                                                                                                                     

deciding a request for bail pending a sentence appeal.                                       We reasoned that:  



                                                                                                                         

                       since a sentence appeal does not fall within AS 12.30.040, it  

                                                                                                                   

                      necessarily follows that the trial court has discretion to deny  

                                                                                                                       

                      bail for a sentence appeal without finding "that no one or  

                                                                                                                     

                      more  conditions  of  release  will  reasonably  assure  the  

                                                                                                                

                       appearance of the person as required or prevent the person  

                                                                          

                       from posing a danger to other persons and the community."  

                                                                                                          

                      AS 12.30.040(a).  Nevertheless, the trial court, in exercising  



                                                                                                   8  

                                                                                     

                      its discretion, must make a reasoned decision. 



      4    Dobrova , 674 P.2d at 835.  



      5    State v. Dobrova, 694 P.2d at 158 (Alaska 1985).  



      6    See Hosier v. State,  957 P.2d 1360, 1363-64  (Alaska App. 1998) (explaining that a  



trial court "abuses its discretion when it exercises its common-law power of  bail release  

[pending sentence appeal] in a manner that creates an equal protection problem  by  treating  

sentence-appeal defendants more favorably than merit-appeal defendants").  



      7    Dobrova , 674 P.2d at 835.  



      8    Id.  



                                                                    - 4 -                                                               2558
  


----------------------- Page 5-----------------------

                            Although   we   did   not   directly   explain  in  Dobrova   what   constitutes   "a  



reasoned decision" in this context, our opinion as a whole suggests that a trial court's                                                                                  



reasons should be related to the underlying purpose of bail pending a sentence appeal.                                                                                                    



The purpose of bail pending a sentence appeal is to protect a defendant from serving                                                                                    

imprisonment that might later be struck by the appellate court as excessive.                                                                                    9  



                                                                                                                                                                          

                             Thus, under Dobrova, even if a defendant meets the criteria for bail release  



                                                                                                              

set forth in AS 12.30.040, a trial court may deny a request for bail pending a sentence  



                                                                                                                                                                     

appeal if the court determines that bail release is unnecessary because the sentence  



                                                                                                                                                                                  

appeal will be resolved before the defendant has served the minimum sentence that the  



                                                                  10  

                                                                                                                                                               

appellate  court  would  affirm.                                         Likewise,  the  court  may  consider  the  defendant's  



                                                                                                                                                                                  

opportunity to request expedited consideration of his sentence appeal in assessing the  



                                                                                                                      11  

                                                                                                                           

                                                                                                       

need for bail pending resolution of the sentence appeal. 



                                                                                                                                                                  

               We remand this case for reconsideration of Shepersky's request for bail  

                                                             

              pending his sentence appeal  



                                                                                                                                                                                      

                            In its order denying Shepersky's request, the superior court stated that it  



                                                                                                                                                                            

was not convinced that Shepersky's proposed bail conditions would "ensure" the safety  



                                                                 

of the community.  The court did not provide any explanation for this finding, nor did  



                                                                                                                                                                            

the court acknowledge that the applicable legal standard is "reasonably assure" rather  



       9       Cf.   1966 House Journal 110-11 (stating that the intent of AS 12.30.040 is to "assure   



that  all  persons,  regardless   of   their  financial  status,  shall  not  needlessly be                                                                      detained  ...  

pending appeal, when detention serves neither the ends of justice nor the public interest").  



       10     See Dobrova, 674 P.2d at 835.  



       11     Id.  



                                                                                       -  5 -                                                                                2558
  


----------------------- Page 6-----------------------

                                              12  

than "ensure."                                       Because we cannot determine whether the superior court applied the                                                                                                                                                  



proper   legal   standard   to   Shepersky's   request,   we   conclude   that   a   remand   for  



reconsideration of the request is required.                                                                                           On remand, the court should reconsider this                                                                                      



issue under the correct legal standard and should provide appropriate findings in support                                                                                                                                                                  



of its decision.     



                                           The superior court's order also suggests that the court denied Shepersky's                                                                                                                       



request for bail based on the victim's desire for finality in this case and the need for                                                                                                                                                               



community condemnation.                                                                Under the Alaska Constitution, a crime victim has the right                                                                                                                 



to be present and to be heard at any bail hearing where the defendant's release from                                                                                                                                                                               



                                                                                         13  

custody is being considered.                                                                                                                                                                                                                                           

                                                                                                 The court should ensure that these rights are honored and  



                                                                                                                                                                                                                                                     

that the victim's concerns are appropriately considered, particularly those concerns  



                                                                                                14  

                                                                                                                                                                                                                                              

                                                                                                         But the victim's desire for finality is an insufficient  

related to the victim's safety. 



                                                                                                                                                                                                                                                       

reason to deny a defendant bail release.  Likewise, community condemnation, although  



                                                                                                                                                                                                                                                                            

an appropriate consideration in crafting a sentence, is an inappropriate consideration in  



                                                                                                                                                                                                                                                      

the context of a request for bail release pending resolution of an excessive sentence  



                                                                                                                                                                                                                                                                   

claim. Instead, the court should consider (1) whether Shepersky has established by clear  



           12        See AS 12.30.040(a).  



           13        See Alaska Const. Art. I,  24 (guaranteeing crime victims "the right to be reasonably                                                                  



protected from the accused through the imposition of appropriate bail or conditions of release                                                                                                                                                                

by the court"and the right "to be allowed to be heard, upon request, at sentencing, before or   

after conviction or juvenile adjudication, and at any proceeding where the accused's release   

from custody is considered").  



           14         Cf. Cooper v. District Court, 133 P.3d 692, 706 (Alaska App. 2006) ("Alaska law  

                                                                                                                 

guarantees  crime  victims  the  right  to  provide  ...  input  when  the  judge  is  making  the  

                                                                                                                         

sentencing  decision,  but  the  law  does  not  guarantee  crime  victims a  right  to  attack  the  

                                                                                                                                                                                                                   

sentencing decision if the judge fails to adhere to the crime victim's views regarding the  

                                                                                                                                                                                                                     

proper sentence").  



                                                                                                                                  -  6 -                                                                                                                          2558
  


----------------------- Page 7-----------------------

and  convincing  evidence  that  the  proposed  bail  conditions  will  reasonably  assure  

                                                                                                                           



Shepersky's  appearance  and  reasonably  assure  the  safety  of  the  victim  and  the  

                                                                                                                                



community; and (2) the extent (if any) that Shepersky's legal rights will be prejudiced  

                                                                                                          



should he be denied bail pending appeal but ultimately prevail on his underlying claim  

                                                                                                                             



that his sentence is excessive.  

                               



                    Accordingly, we VACATE the superior court's order and REMAND this  

                                                                                                                                



case to the superior court for reconsideration of the defendant's request for bail in accord  

                                                                                                                            



with the guidance provided here.  We do not retain jurisdiction of this bail appeal.  

                                                                                                                    



                                                               -  7 -                                                        2558
  

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