Application for Relief from the Superior Court Trial Court
No. 2UT-17-0028 CR, Second Judicial District, Nome, Romano D.
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,
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
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.
reclassification is in accord with the direction provided by
the Alaska Supreme Court in Surina v. Buckalew.,
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
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.
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.
facts and prior proceedings
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.
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.
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 ...