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State v. Superior Court

Court of Appeals of Alaska

January 12, 2018

STATE OF ALASKA, DEPARTMENT OF PUBLIC SAFETY, Petitioner,
v.
SUPERIOR COURT, Respondent.

         Original Application for Relief from the Superior Court Trial Court No. 2UT-17-0028 CR, Second Judicial District, Nome, Romano D. DiBenedetto, Judge.

          John Novak, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Petitioner.

          Matthew Tallerico, Gazewood & Weiner, P.C., Fairbanks, for real party in interest William Hoogendorn.

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

          OPINION

          ALLARD, JUDGE.

         The Department of Public Safety seeks discretionary review of an order issued by the Nome superior court in a criminal case, State of Alaska v. William Hoogendorn. The order directs the Department of Public Safety to transport William Hoogendorn from the Goose Creek Correctional Center near Wasilla (where Hoogendorn is currently housed) to the Fairbanks Correctional Center. The purpose of this transfer is to facilitate a psychological evaluation of Hoogendorn by a Fairbanks-based psychologist retained by Hoogendorn's defense attorneys. The Department of Public Safety contends that the superior court exceeded its authority when it issued this order.

         Because the controversy at issue here is not between the parties to the underlying criminal action, but instead between the Department of Public Safety and the superior court, we have recaptioned this case and reclassified the Department's petition for review as an original application for relief under Appellate Rule 404.

         This reclassification is in accord with the direction provided by the Alaska Supreme Court in Surina v. Buckalew., [1] In Surina, the supreme court held that a third party who is adversely affected by an order in a criminal case has essentially two options: (1) the third party can refuse to obey the order and then appeal any resulting finding of contempt under Appellate Rule 202; or (2) the third party can seek discretionary appellate review of the order by filing an original application for relief under Alaska Appellate Rule 404.[2]

         Here, the Department of Public Safety has chosen to seek immediate review of the superior court's order, rather than directly refusing to comply and risking contempt. We therefore conclude that the Department's petition to this Court is properly characterized as an original application for relief under Appellate Rule 404.

         We also conclude that our discretionary review is warranted in this case and that the superior court exceeded its authority when it issued this order. Accordingly, for the reasons explained here, we grant the Department's original application for relief, and we reverse the superior court's order.

         Background facts and prior proceedings

         Earlier last year, William Hoogendorn was indicted on one count of first-degree burglary and two counts of second-degree sexual assault. His case is currently pending before the Nome superior court. Hoogendorn is represented by publicly appointed counsel - specifically, a Fairbanks-based law firm under contract with the Office of Public Advocacy. Hoogendorn has not been released on bail, and he remains in the custody of the Department of Corrections.

         In August 2017, Hoogendorn's attorneys filed a motion requesting that the superior court order the Department of Corrections to transport Hoogendorn from Anvil Mountain Correctional Center in Nome (where Hoogendorn was then housed) to the Fairbanks Correctional Center. The attorneys asserted that the purpose of this transfer was to facilitate a psychological evaluation by a Fairbanks-based psychologist that the defense attorneys had retained. The attorneys argued that the psychological evaluation was essential to Hoogendorn's defense, and that it would be "more cost-effective" for the State to bear the costs of transporting Hoogendorn to the Fairbanks Correctional Center rather than have the Office of Public Advocacy pay for the Fairbanks-based defense expert to travel to Nome.

         The district attorney's office apparently did not oppose the defense request, and the Department of Corrections was not served with the defense attorney's motion. The superior court subsequently granted the defense motion and ordered the Department of Corrections to transport ...


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