Shepersky v. State

         Appeal from the Superior Court Trial Court No. 3PA-15-1783 CR, 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. ^[*]

          OPINION

          ALLARD Judge

         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 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 the prosecutor notified the court that the victim^[1] strongly opposed Shepersky's release.

         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 others from experiencing 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 ...