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Torgerson v. State

Court of Appeals of Alaska

June 7, 2019

MARK DANIEL TORGERSON, Appellant,
v.
STATE OF ALASKA, Appellee.

          Appeal from the Superior Court, Third Judicial District, Anchorage, Trial Court No. 3AN-19-02368 CR Kevin M. Saxby, Judge.

          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, Attorney General, Juneau, for the Appellee.

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

          OPINION

          WOLLENBERG JUDGE

         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 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 victim or 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.

         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 district court ...


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