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Mark Daniel Torgerson v. State of Alaska (6/7/2019) ap-2647

Mark Daniel Torgerson v. State of Alaska (6/7/2019) ap-2647

                                                                        NOTICE
  

            The text of this opinion can be corrected before the opinion is published in the  

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            errors to the attention of the Clerk of the Appellate Courts:  



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                       IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



MARK DANIEL TORGERSON,  

                                                                                            Court of Appeals No. A-13416  

                                                 Appellant,                              Trial Court No. 3AN-19-02368 CR  



                                     v.  

                                                                                                           O P I N I O N  

STATE OF ALASKA,  



                                                 Appellee.                                       No. 2647 - June 7, 2019  



                        Appeal  from  the  Superior   Court,  Third  Judicial  District,  

                                                                            

                        Anchorage, Kevin M. Saxby, Judge.  



                        Appearances:                   Mary   Fleming                 Burnell,          Assistant          Public  

                                                                  

                        Defender,   and   Beth   Goldstein,   Acting   Public   Defender,  

                        Anchorage, for the Appellant. Bonnie E. Bull, Assistant District  

                                                                              

                        Attorney, Anchorage, and Kevin G. Clarkson, AttorneyGeneral,  

                                                                                                                         

                        Juneau, for the Appellee.  



                        Before:   Allard, Chief Judge, and Wollenberg and Harbison,  

                                                                  

                        Judges.  



                        Judge WOLLENBERG.  



                        Mark   Daniel Torgerson                        seeks appellate review                       of the superior               court's  



refusal to modify the conditions of his pretrial bail release. Torgerson argues that, at his                                                              



first bail review hearing, the superior court failed to conduct an independent review of                                                                    


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his bail conditions, and instead improperly deferred to the bail conditions previously set  

                                                                                                                                



by the district court at Torgerson's first appearance.  

                                                              



                    We agree with Torgerson.  We therefore remand Torgerson's case to the  

                                                                                                                           



superior  court  and  direct  the  superior  court  to  conduct  an  independent  review  of  

                                                                                                                                



Torgerson's bail request.  

                           



          Facts and proceedings  

                           



                    In early March 2019, the State charged Torgerson with two counts of first- 

                                                                                                                             



degree  sexual  abuse  of  a  minor.                   The  State  alleged  that,  four  years  ago  -  when  

                                                                                                                           



Torgerson was sixteen years old - he performed fellatio on his three-year-old cousin  

                                                                                                                          



and caused his cousin to perform fellatio on him.  

                                                                            



                    Torgerson was arrested and brought before District Court Judge Jo-Ann  

                                                                                                                         



Chung.  At this first court appearance, the court presented Torgerson with the charges  

                                                                                                                   



against him and appointed the Public Defender Agency to represent him.  

                                                                                                                  



                    The  court  then  addressed  bail.                  The  prosecutor  asked  the  court  to  set  

                                                                                                                               



monetary bail in the amount of a $25,000 cash or corporate appearance bond and a  

                                                                                                                           



$25,000 cash performance bond, and to require that Torgerson be subject to electronic  

                                                                                                                     



monitoring through the Pretrial Enforcement Division.  Torgerson, through his newly- 

                                                                                                                          



appointed attorney, agreed to electronic monitoring but requested monetary bail in an  

                                                                                                                                



amount of a $500 cash performance bond.  

                                                                   



                    The district court imposed the non-monetary conditions agreed to by the  

                                                                                                                               



parties:  namely, house arrest with electronic monitoring and a bar on contact with the  

                                                                                                                               



alleged victimor other minors under sixteen years old. But, without any explanation, the  

                                                                                                                                



court set monetary bail at an amount higher than that requested by the prosecutor:  a  

                                                                                                                                  



$50,000 cash or corporate appearance bond and a $50,000 cash performance bond.  

                                                                                                                                



                                                              - 2 -                                                          2647
  


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                    Following Torgerson's indictment, Torgerson's attorney requested a bail  

                                                                                               



hearing, pursuant to AS 12.30.006(c).  This was Torgerson's first bail review hearing.  

                                                                                                                        



Torgerson's attorney requested that the superior court impose a monetary bail of a  

                                                                                                                                  



$5,000 cash or corporate appearance bond and a $10,000 cash performance bond, in  

                                                                                                                                 



addition to house arrest with electronic monitoring.  

                                                             



                    Superior Court Judge Kevin M. Saxby presided over the hearing.  At the  

                                                                                                                               



hearing, Torgerson presented his proposal.  He noted that he had stable housing in a  

                                                                                                                                  



residence with no minors, steady employment, and no prior criminal history, and that he  

                                                                                                                                 



was willing to submit to house arrest with electronic monitoring.  The State opposed  

                                                                                                                       



Torgerson's proposal.  The prosecutor argued that bail had been "meaningfully set" at  

                                           



Torgerson's districtcourtarraignment, andthat thedistrict court had considered thesame  

                                                                                                                             



facts that were then before the superior court.  

                                                             



                    The superior court denied Torgerson's proposal.  The court stated that it  

                                                                                                                                  



was considering "pretty much the same issue" as was before the district court judge. The  

                                                                                                                               



court made one case-specific finding - that the fact that Torgerson was four years older  

                                                                                                                             



than he was at the time of the offense made him better able to leave the jurisdiction.  

                                                                                                                                     



Ultimately, the court concluded, "Given my understanding of what the situation was  

                                                                                                                              



before Judge Chung, I agree that bail was appropriately set."  

                                                                                      



           Why we remand Torgerson's case for a new bail review hearing  

                                                                                                 



                    Alaska Statute 12.30.006(c) sets out the right to a first bail hearing:  

                                                                                                               



                    A person who remains in custody 48 hours after appearing  

                                                                                                 

                    before  a  judicial  officer  because  of  inability  to  meet  the  

                                                                                                          

                    conditions of release shall, upon application, be entitled to  

                                                                                                             

                    have  the  conditions  reviewed  by  the  judicial  officer  who  

                                                                                                         

                    imposed  them.             If  the  judicial  officer  who  imposed  the  

                                                                                                          



                                                              -  3 -                                                         2647
  


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                            conditions of release is not available, any judicial officer in                                                         

                            the judicial district may review the conditions.                          



We have previously construed a prior version of this statute, with similar language -                                                                                                 



former   AS   12.30.020(f)  (pre-July   1,   2010   version)   -   to   require   an   independent  



                                                                                                                                 1  

assessment of bail conditions at a defendant's first bail hearing.                                                                                                         

                                                                                                                                     We now re-affirm that,  



                                                                                                                                                           

at  a  first  bail  review  hearing,  a  judicial  officer  is  required  to  assess  a  defendant's  



                                                           

conditions of release anew.  



                                                                                                                                                                 

                            The requirement of an independent review is reinforced by the statutory  



                                                                                                                                                                                  

subsection immediately following AS 12.30.006(c).  Under AS 12.30.006(d)(1), with a  



                                                                                                                                                                     

few noted exceptions, a defendant who remains in custody after a first bail review  



                                                                                                                                                                             

hearing is generally entitled to a second or subsequent bail review hearing only if the  



                                                                                                                                                                            

defendant provides "new information" to the court not previously considered at the first  



                                                                                                                                                               

bail hearing.  When subsections (c) and (d) are read together, it is clear that a defendant  



                                                                                                                                                                      

need  not  present  any  "new"  information  at  the  first  bail  review  hearing  under  



                                                                                                                                                                             

AS 12.30.006(c) - that is, the defendant need not present any information that was not  



                                                                                                                                                                            

previously known at the time of the defendant's first appearance.  Instead, at a first bail  



                                                                                                                                                             

hearing,  a  defendant  who  remains  in  custody  is  "entitled"  to  have  the  conditions  



                                                              2  

                                                                   

                                                

reviewed by a judicial officer. 



                                                                                                                                                                     

                            Additionally, AS 12.30.006(f) requires a judicial officer to "issue written  



                                                                                                                                                                                

or oral findings that explain the reasons the officer imposed the particular conditions of  



                                                                                                                                                                 

release or modifications or additions to conditions previously imposed." This provision  



                                                                                                                                                                       

precludes a court from simply relying on, or deferring to, findings made at an earlier  



                                                                  

hearing when bail was initially set.  



       1      See Mayberry v. State, Court of Appeals File No. A-10717 (Order dated Apr. 12,                                                           



2010), at 2-3.  



       2      See AS 12.30.006(c).  



                                                                                     - 4 -                                                                                2647
  


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                                         A defendant's entitlement to an independent judicial assessment of bail                                                                                                                                            



conditions at the defendant's first bail review hearing rests on important constitutional                                                                                                                                      



and policy concerns. The right to bail is guaranteed by article I, section 11 of the Alaska                                                                                                                                                        



Constitution, whichprovides                                                             that "[i]n                  all criminal prosecutions,"theaccused is                                                                                  "entitled  



 . . . to be released on bail, except for capital offenses when the proof is evident or the                                                                                                                                                                    



presumption great."                                              While the Alaska Supreme Court has declared that a criminal                                                                                                                  



defendant is not necessarily entitled to bail in an amount the defendant can post, a judge                                                                                                                                                           



may not set bail in an amount that goes beyond that which is necessary to fulfill the                                                                                                                                                                         



purposes of bail -                                         i.e., to reasonably assure the defendant's appearance and the safety                                                                                                                       



                                                                                                                                                                             3  

of the alleged victim, other persons, and the community.                                                                                                                         



                                                                                                                                                                                                                                                 

                                         Many, if not most, criminal defendants are represented by public counsel  



                                                                                                                                                                                                          4  

                                                                                                                                                                                                                                                              

                                                                                                                                                                                                                 At the time of the  

- counsel that is first appointed at the defendant's arraignment. 



                                                                                                                                                                                                                                                              

appointment, an attorney from the appointed agency may not be present to assist the  



                                                                                                                                                                                                                                                           

defendant.                             If  an  attorney  is  present,  that  attorney  will  generally  have  only  a  few  



                                                                                                                                                                                                                                     

moments in court to consult with theagency's newclient and glean whatever information  



                                                                                                                                                                                                                                                                           

the attorney can to present to the judge who sets the defendant's initial bail conditions.  



                                                                                                                                                                                                   

There is no opportunity for a complete and private consultation with the client, and no  



                                                                                                                                                                                                                          

ability to independently explore or confirm possible bail release plans.  



                                                                                                                                                                                                                                                                   

                                         The  requirement  that  judges  conduct  an  independent  assessment  of  a  



                                                                                                                                                                                                                                                                    

defendant's conditions of release at the first bail review hearing affords defendants a  



          3         See Alaska Const. art. I,  12 (prohibiting excessive bail);                                                                                                         Hamburg v. State, 434 P.3d  



 1165, 1165 (Alaska App. 2018) (citing Martin v. State , 517 P.2d 1389, 1393-95 (Alaska                                                                                                                                                          

 1974)); see also former AS 12.30.011(b) (2015) & AS 12.30.011(h) (requiring the court to  

set  "least  restrictive"  condition  or  conditions  that  will  reasonably   assure  the  person's  

appearance and the safety of the community).  



          4         See AS 18.85.100(a).  



                                                                                                                             -  5 -                                                                                                                        2647
  


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

meaningful   opportunity   to   consult   with   their   attorney   and   gather   any   necessary  



information relevant to the bail decision.                                              It also allows the court an opportunity to                                          



explain its bail decision, in order to help foster understanding of the decision by the                                                                                   

defendant and the public, and to allow for meaningful appellate review.                                                                          5  



                                                                                                                                                                              

                           Accordingly, we conclude that at a defendant's first bail review hearing, a  



                                                                                                                                                                            

court is required to conduct an independent assessment of the defendant's conditions of  



                                                                                                                                                        

release.  The court may not simply defer to the bail conditions imposed at a defendant's  



                                               

first court appearance.  



                                                                                                                                                              

                           Here,  it  appears  that  the  superior  court  did  not  conduct  the  required  



independent assessment of Torgerson's bail conditions.  The court repeatedly referred  



                                                                                                                                                                    

to the bail set by the district court judge at Torgerson's first appearance, and noted  



                                                                                                                                                                          

specifically that it was facing the "same issue" as was before the district court. While the  



                                                                                                                                                               

court ultimately found that bail was "appropriately set," this conclusion was couched  



                                                                                                                                                               

within the context of the earlier hearing: "Given my understanding of what the situation  



                                                                                                                            

was before Judge Chung, I agree that bail was appropriately set."  



                                                                                                                                                                         

                           The court's failure to set forth any explanation for why the particular bail  



                                                                                                                                                      

conditions  were  the  least  restrictive  necessary  to  reasonably  assure  Torgerson's  



                                                                                                                                                                          

appearance  or  the  safety  of  the  alleged  victim  or  the  community,  as  required  by  



                                                                                                                                                       

AS 12.30.006(f), reinforces the notion that the court did not conduct an independent  



                 

review.  



       5      See Pisano v. State                 , Court of Appeals File No. A-13289 (Order dated Jan. 16, 2019),   



at 7 (noting that a sufficient explanation of why a particular monetary bail is necessary in a                                                                           

given case is required for meaningful appellate review);  Pisano v. State, Court of Appeals   

File No. A-13089 (Order dated May 24, 2018), at 5 (noting that deferential review of a trial                                                                         

court's decision to impose a particular bail presupposes that the trial court has demonstrably  

considered relevant factors and has provided a sufficient explanation of why the particular  

bail conditions were imposed).  



                                                                                   -  6 -                                                                              2647
  


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

                                              Indeed, we note that, at one point during the hearing, the superior court                                                                                                                                  



appeared to question the need for the high monetary bail given Torgerson's willingness                                                                                                                                                                              



to submit to house arrest with electronic monitoring. But once the court realized that the                                                                                                                                                                                                       



electronic monitoring condition was part of the original bail set by the district court (and                                                                                                                                                                                                



was   not   a   new   condition   proposed   by   Torgerson   at   the   bail  hearing),   the   court  



"reassessed the entire bail package that was put to Judge Chung," and the court declined                                                                                                                                                                                      



to modify the bail set by the district court.                                                                                



                                              Because    the    superior    court    was    required    to   independently    assess  



Torgerson's conditions of release, and because we are unable to say that Torgerson                                                                                                                                                                                     



received the hearing to which                                                                                 he was entitled,                                            we remand                                  Torgerson's case to                                                       the  



superior court so that the court can conduct this independent review.                                                                                                                                                                            



                                              On remand, the court should independently assess the bail conditions as a                                                                                                                                                                                 



whole   and   explain   why   the   monetary   bail   imposed   is   the   least   restrictive   that   will  



reasonably assure Torgerson's appearance and the safety of the alleged victim and the                                                                                                                                                                                                            



                                                                                                                                                                                                                          6  

community, in light of the other protective measures in place.                                                                                                                                                                                                                                  

                                                                                                                                                                                                                                  The court should not  



                                                                                                                                                                                                                                                                                             

calibrate its choice of monetary bail by reference to the amount set at Torgerson's first  



                                                                                                                                                                                                                                                                                                     7  

                                                                                                                                                                                                                                                                        

appearance, or require Torgerson to justify a downward deviation from that number. 



                                                                 

                        Conclusion  



                                                                                                                                                                                                                                                                                                 

                                              For the reasons explained here, we VACATE the bail order issued by the  



                                                                                                                                                                                                                                                                 

superior court and REMAND Torgerson's case to the superior court for an independent  



            6          Former AS 12.30.011(b) (2015); AS 12.30.011(h).  



            7          See Pisano v. State, Court of Appeals File No. A-13289 (Order dated Jan. 16, 2019),   



at 6-7; Pisano v. State, Court of Appeals File No. A-13089 (Order dated May 24, 2018), at                                                                                                                                                                         

7-8.  



                                                                                                                                              -  7 -                                                                                                                                         2647
  


----------------------- Page 8-----------------------

assessment   of   Torgerson's   bail   proposal,   in   light   of   the   guidance   provided   here.  



                                           We do not retain jurisdiction.                            



                                                                                                                                     -  8 -                                                                                                                                2647
  

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