Bail Appeal Trial Court Case No. 4FA-22-01099CR

ORDER

Devin Edward Wright Sr. appeals the trial court's November 8, 2022 denial of his application for a third bail review hearing. Because we conclude that Wright's application provided new information - namely, that Joanne Mulholand would be Wright's primary custodian and would live with Wright in his proposed residence - we remand this case for consideration of this new information.

Wright, who is thirty-one years old, is charged with six counts of first-degree sexual abuse of a minor, one count of second-degree sexual abuse of a minor, and one count of distribution of indecent materials to minors for conduct against Z.P. that allegedly took place when Z.P. was twelve years old. According to the charging documents in this case, Wright and Z.P. were both living with Sandra Brunsvold, Wright's girlfriend, at the time of the offenses.

On May 21, 2022, at Wright's first appearance in court following his arrest, bail was set at a $250,000 appearance bond and a $250,000 performance bond. Wright was indicted on May 31, 2022.

At Wright's first bail review hearing on June 23, 2022, Wright asked the court to set bail at a $25,000 performance bond and a $25,000 appearance bond. After hearing the arguments of counsel, the trial court declined to reduce the bail amount, absent an approved third-party custodian to ensure that Wright would not have contact with minors.

Wright subsequently filed a second application to review the bail. He again asked the court to lower both the appearance bond and the performance bond from $250,000 to $25,000. This time, Wright proposed living at his mother's house and being subject to 24/7 house arrest and GPS monitoring through Pretrial Enforcement Division (PED). He also proposed being monitored by four third-party custodians - Sandra Brunsvold, Christine Mitchell (a friend of Wright and Brunsvold), Jennifer Wright (Wright's mother), and Joanne Mulholand (the sister of one of Wright's friends).

On August 4 and 5, 2022, the trial court conducted a hearing to review Wright's request. During that hearing, Jennifer Wright testified that Wright would live with her in her home. She stated that Brunsvold would also be living in the home, and she provided a schedule showing when she would be available to act as a third-party custodian (essentially, during the hours she was not working at her fulltime job).

Mulholand testified that she would be available to serve as a third-party custodian "24/7, seven days a week." But she also testified that the proposed custodians had not yet agreed on a schedule as to which days and times each of them would be responsible for supervising Wright, and that they had not arranged "procedures for handing off" Wright from one custodian to the next. Mulholand testified that she did not know Jennifer Wright, but that when she would be supervising Wright, she would be doing so at Jennifer Wright's home.

Mitchell and Brunsvold also both testified to their willingness to serve as third-party custodians.

After determining that Brunsvold was statutorily disqualified from serving as a third-party custodian, the court considered Wright's request to approve the remaining third-party custodians and to reduce the bail to a $25,000 performance bond and a $25,000 appearance bond. The court found that approving all three third-party custodians would not adequately protect the public because there was no agreed-upon supervision schedule, and because the proposed custodians did not know each other. According to the court, "assigning strangers the responsibility of providing 24/7 supervision of Mr. Wright is just not sufficient to protect the safety of the public."

Although the court declined to approve all three third-party custodians, it did approve one of them: Wright's mother, Jennifer Wright. The court also reduced Wright's performance bond from $250,000 to $100,000. And, as proposed by Wright, the court required Wright to remain in his mother's house on house arrest, with PED GPS monitoring. On the same day that the court issued this oral ruling - the court also issued a conforming written order setting out the required bonds and other conditions of release. Wright did not appeal this order.

Over three months later, on November 7, 2022, Wright filed an application for a third bail review hearing. In that application, Wright again asked the court to reduce the bail to the amount he had previously proposed - i.e., to a $25,000 performance bond and a $25,000 appearance bond. Wright's written application indicated that he was "proposing as a primary third-party custodian, Joanne Mulholand, . . . who will reside at Jennifer Wright's house." The application was considered by a different judge than the judge who had conducted the bail hearings. The judge denied Wright's request for a bail hearing, and this appeal followed.

Article I, Section 11 of the Alaska Constitution entitles a person accused of a crime to be released on bail. This right is implemented through the provisions of Title 12, Chapter 30 of the Alaska Statutes. Alaska Statute 12.30.006(c) sets out a criminal defendant's right to a first bail review hearing. Under the following subsection, AS 12.30.006(d), a defendant 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.

But because the underlying right of pretrial release is guaranteed by the Alaska Constitution, we have recognized that trial courts should narrowly construe the statutory restrictions on pretrial release set out by AS 12.30. "Stated differently, courts should broadly construe what qualifies as 'new information' for purposes of obtaining a subsequent bail review hearing under AS 12.30.006(d)(1)."

As an initial matter, we note that the trial court's order denying Wright's application for a bail review hearing rested on a faulty premise. In its order denying the hearing, the court ruled that Wright had "already had a third bail hearing addressing inability to post." But Wright had only had two prior bail hearings, and neither of these was the hearing solely for inability to pay that is contemplated by AS 12.30.006(d)(3).

Moreover, Wright did offer "new information" to the court: that if Mulholand were approved as a third-party custodian, she would reside with Wright in Jennifer Wright's house and would be Wright's "primary" custodian. This information was directly relevant to the court's stated concerns about Wright's original proposal - i.e., that it would be too difficult for three third-party custodians who do not know each other to develop a clear schedule for transferring the responsibility and the "liability" for Wright from one person to the next. The court expressed this concern when Wright proposed that Jennifer Wright would be the only third-party custodian living in the home. Under the terms of that proposal, Mitchell and Mulholand would have traveled to and from the home on a schedule that had not yet been determined, and none of the three third-party custodians would have primary responsibility for Wright.

We acknowledge that Wright's written application primarily recited information Wright had previously presented to the court and complained that the court's prior rulings were unsupported and speculative. We further acknowledge that the "new information" in the application - that Joanne Mulholand "will reside at Jennifer Wright's house" and would be the "primary" third-party custodian - comprised less than one sentence of a four-page document. Indeed, the tenor of the filing was that of a motion for reconsideration - one that was filed over three months after the order it challenged - rather than a description of the new information that would be presented at a bail hearing.

We nevertheless conclude that the application contained information that was sufficient to satisfy the statutory requirement of AS 12.30.006(d)(1). Wright's application contained "a written statement that new information not considered at the previous review will be presented at the hearing" and it also included a description of the new information. And because this new information was directly relevant to addressing the court's concerns about Wright's previous bail proposal, the trial court should have conducted a hearing to consider that information.

In his bail appeal, Wright makes several additional arguments aimed at disputing findings the trial court made when it denied his bail proposal in August 2022. But Wright did not timely appeal that order. In fact, Wright did not file his appeal until over four months later, after the court issued its November 8, 2022 order denying his request for a subsequent review hearing. We accordingly decline to address Wright's additional arguments.

We note, however, that when the trial court conducts a hearing to consider the new information offered by Wright, it is required to evaluate the entirety of the bail proposal (including any monetary conditions) in order to determine the "least restrictive" means to fulfill the dual purposes of bail. As a result, if the trial court approves Mulholand as a third-party custodian, it will necessarily reconsider the other conditions of Wright's release, including whether to lower the current monetary bail condition.

For the reasons explained in this order, we REVERSE the superior court's order denying Wright a bail review hearing, and we REMAND this case to the superior court to schedule a bail review hearing in order to consider Wright's bail proposal in light of the new information he identified in his application.

We do not retain jurisdiction. Entered at the direction of the Court.