Opinion
A-14263
12-20-2023
Colton Thomas, Appellant, v. State of Alaska, Appellee.
Trial Court Case No. 3KN-22-01366CR
Before: Wollenberg, Harbison, and Terrell, Judges
ORDER MOTION FOR RELEASE PRIOR TO JUDGMENT
Colten Keith Thomas appeals from the bail order issued in this case on August 31, 2023. Thomas raises several challenges to the monetary bail that was set by the superior court, but primarily he contends that the superior court refused to conduct an independent assessment of the monetary bail amount that was originally set at his first appearance and that the monetary bail exceeds the least restrictive amount necessary to fulfill the dual purposes of bail (i.e., appearance and performance).
See Torgerson v. State, 444 P.3d 235, 238 (Alaska App. 2019) (holding that "at a defendant's first bail review hearing, a court is required to conduct an independent assessment of the defendant's conditions of release" and "may not simply defer to the bail conditions imposed at a defendant's first court appearance").
See AS 12.30.011(b) (requiring courts to impose the least restrictive conditions of release that will reasonably ensure the defendant's appearance and protect the victim, other persons, and the community).
On December 16, 2022, Thomas was charged by complaint with one count of first-degree sexual assault, one count of third-degree sexual assault, and one count of fourth-degree assault for conduct involving his sister-in-law, K.T., who is married to his brother, Kyler. At the time of the offense, Thomas, his then-girlfriend, and their children were living in the same house as Kyler, K.T., and their children. According to the complaint, Thomas woke K.T. up by touching her breasts and genitals and then forced his penis into her mouth, injuring the inside of her lip and causing her pain. The offense was alleged to have taken place the day before the complaint was filed.
AS 11.41.410(a)(1), AS 11.41.425(a)(1)(C), and AS 11.41.230(a)(1), respectively.
Thomas and his ex-girlfriend were in a long-term relationship and had two children together. Their relationship ended sometime after the alleged December 15, 2022 incident.
At Thomas's first appearance in court on December 17, 2022, the trial court advised him of his rights, appointed counsel for him, and set bail. In its bail order, the court required Thomas to post a $50,000 cash performance bond and a $50,000 cash or corporate appearance bond. The court also required Thomas to be in the custody of a court-approved third-party custodian, prohibited Thomas from contacting K.T., and prohibited Thomas from returning to their mutual residence, among other conditions.
For the next several months, Thomas's attorney negotiated with the State, attempting to reach a pre-indictment resolution. After these negotiations were unsuccessful, the State asked a grand jury to indict Thomas for the conduct described in the complaint and for additional conduct that allegedly occurred between 2020 and 2022.
On May 25, 2023, the grand jury returned a twenty-one-count indictment, charging Thomas with nine counts of first-degree sexual assault, one count of attempted first-degree sexual assault, four counts of second-degree sexual assault, two counts of third-degree sexual assault, and five counts of fourth-degree assault.
AS 11.41.410(a)(1), AS 11.41.410(a)(1) & AS 11.31.100, AS 11.41.420(a)(1), AS 11.41.425(a)(1)(C), and AS 11.41.230(a)(1), respectively.
Several days later, Thomas filed his first application for a bail review hearing. In this application, Thomas asked to be released to three third-party custodians (his mother, Corrina Thomas; his grandfather, Harold Hagedorn; and his uncle, Jacob Hagedorn) with 24-hour electronic monitoring by the Pretrial Enforcement Division (PED). Thomas also asked that the monetary bail be reduced to a $5,000 cash performance bond and an unsecured appearance bond.
The court conducted a bail review hearing on June 5, 2023. Thomas's mother testified at the hearing and explained that she lives with her husband, Moses Ayala (Thomas's stepfather), and Thomas's 17-year-old brother in a house that is about seven miles away from K.T.'s residence. Thomas's mother told the court that Thomas's older brother, Kyler, also sometimes lives there. She stated that if Thomas were released, Thomas would be in her custody, his grandfather's custody, or his uncle's custody at all times.
In response to questioning by the prosecutor, Thomas's mother testified that she had spoken to both Thomas and K.T. about the allegations. During these conversations, Thomas provided his account of what occurred, and K.T. provided hers. Thomas's mother stated that she did not believe that her son committed the offenses - rather, she believed that any sexual contact between Thomas and K.T. was consensual.
The bail hearing was continued so that the parties could consider whether Thomas's mother was likely to be called as a witness and thus would be statutorily disqualified from serving as a third-party custodian. But before the date of the continued hearing, Thomas filed a written notice withdrawing his bail proposal.
Under AS 12.30.021(c)(5), a person cannot serve as a third-party custodian if they "may be called as a witness in the prosecution of the person."
Thomas filed a second application for a first bail hearing on July 19, 2023. In this application, he asked to be released to three new third-party custodians - his stepfather, Moses Ayala, and his ex-girlfriend's parents, Erin McCrosky and Jarred Mahan. Thomas again proposed 24-hour electronic monitoring by PED and asked that the monetary bail be reduced to a $5,000 cash performance bond.
The court conducted a bail review hearing on July 26, 2023. At that hearing, two of the proposed third-party custodians (Erin McCrosky and Moses Ayala) were present and testified. In response to questioning by the prosecuting attorney, McCrosky explained that her daughter (Thomas's ex-girlfriend) and her daughter's children (who were also Thomas's children) live with K.T. McCrosky stated that when she goes over to see her grandchildren, K.T. barely speaks to her. McCrosky assured the prosecutor that she would not pass messages to K.T. if she were approved as Thomas's third-party custodian.
Thomas's stepfather, Moses Ayala, also testified. He stated that he has prior criminal convictions for making a false report, theft, and assault. Ayala stated that he lives with Thomas's mother, Thomas's 17-year-old brother, and Kyler.
Because one of Thomas's proposed third-party custodians, Jarred Mahan, was not present, the court continued the bail hearing to August 10, 2023. However, Thomas's attorney later canceled the hearing.
Thomas filed a third application for a first bail hearing on August 29, 2023. In this application, he again proposed electronic monitoring by PED, but this time he asked the court to delete the third-party custodian requirement. He also asked the court to reduce the bail to a $5,000 cash performance bond and a $50,000 unsecured appearance bond.
The court conducted a bail review hearing on August 31, 2023. At that hearing, the defense attorney asked the court to release Thomas to live on the four lots that comprise his grandfather's farm - the same property where his mother, his stepfather, his 17-year-old brother, and Kyler reside. The attorney explained that Thomas would remain at the property on house arrest with electronic monitoring by PED and would leave only for specific purposes, such as going to court, meeting with his lawyer, or engaging in treatment. The attorney told the court that Thomas could not afford to post more than $5,000.
The court approved Thomas's request to be monitored by PED electronic monitoring and to delete the third-party custodian requirement, but it denied Thomas's request to lower the monetary bail amount. The court discussed the difficulty Thomas had had in finding a qualified third-party custodian, and it expressed concern that without a third-party custodian, the dual purposes of bail would not be fulfilled. The court explained that "the monetary amount would be necessary in order to protect the public and to ensure the defendant's appearance at trial." The court suggested that it might feel differently about imposing a lower bail amount if Thomas could find a third-party custodian that the court would approve.
The court specifically acknowledged the defense attorney's assertion that Thomas could not personally post more than $5,000 bail, but explained that it was imposing a higher bail amount because this would mean that Thomas would need to get help from friends and family to post the bail, which would help ensure community safety and Thomas's appearance at trial.
Thomas appeals, contending that the superior court did not conduct an independent assessment of his conditions of release and that it instead deferred to the bail set at his first court appearance. He also asserts that the court set bail outside of what he is able to afford without providing case-specific reasons for doing so.
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. In Torgerson v. State, we held that "at a defendant's first bail review hearing," the trial court "is required to conduct an independent assessment of the defendant's conditions of release. The court may not simply defer to the bail conditions imposed at a defendant's first court appearance."Instead, the court 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.
Torgerson v. State, 444 P.3d 235, 238 (Alaska App. 2019).
See AS 12.30.011(b) (requiring a judicial officer to impose the "least restrictive condition or conditions that will reasonably ensure the person's appearance and protect the victim, other persons, and the community"); AS 12.30.011(c) (requiring a court determining a defendant's conditions of release to consider, among other factors, the "assets available to the person to meet monetary conditions of release"); see also Alaska Const. art. I, § 12 (prohibiting excessive bail).
When Thomas first appeared in court, he was charged with one count of first-degree sexual assault, one count of third-degree sexual assault, and one count of fourth-degree assault for conduct that occurred on December 15, 2022. At that time, the court required Thomas to post a $50,000 cash performance bond and a $50,000 cash or corporate appearance bond. The court also required Thomas to be in the custody of a court-approved third-party custodian, prohibited Thomas from contacting K.T. or returning to their mutual residence, and imposed several other release conditions.
After the parties attempted, unsuccessfully, to reach a pre-indictment agreement to resolve the case, Thomas was indicted for conduct spanning approximately two years - the conduct originally charged in the complaint plus eighteen additional charges of sexual assault, attempted sexual assault, and assault.
Against this backdrop, the court conducted a series of "first" bail review hearings. During these hearings, the court learned that several of Thomas's family members were closely involved in the case and in regular contact with Thomas and K.T., and that many of them lived adjacent to or with one another on lots owned by Thomas's grandfather.
At the hearings, the court was informed that Thomas's stepfather has been convicted of crimes of dishonesty and assault. The court also learned that Thomas's mother has spoken to both K.T. and Thomas about the alleged offenses, that she may be a witness at trial, and that she visits her grandchildren (Thomas's and Kyler's children) at the residence shared by K.T. and Thomas's ex-girlfriend.
Thomas's ex-girlfriend's mother, who had offered to be a third-party custodian for Thomas, visits her grandchildren at that residence as well.
Ultimately, the court deleted the third-party custodian requirement, but it declined to reduce the monetary bail. The court acknowledged Thomas's lawyer's assertion that Thomas is unable to post more than $5,000, but it found that, given the number of serious felony charges Thomas now faces, and given the complicated family dynamics in this case, the existing monetary bail - a $50,000 performance bond and a $50,000 appearance bond - is necessary to protect the public and to reasonably ensure Thomas's appearance at trial.
We conclude that the superior court adequately explained its decision to maintain the high monetary bail and that it did not abuse its discretion in doing so. Furthermore, we note that the court's decision was tied to Thomas's current proposed release plan and that, under AS 12.30.006(d)(1), a defendant is entitled to a second or subsequent bail review hearing if the defendant provides "new information" to the court not considered at the first bail hearing. Thus, if Thomas presents a release plan with a different third-party custodian, the court would be required to reassess the monetary bail.
See Harris v. State, 2021 WL 5029385, at *3 (Alaska App. Oct. 28, 2021) (unpublished).
Furthermore, Thomas has not yet had a hearing to review bail solely because of his inability to pay. Under AS 12.30.006(d)(1), a defendant's inability to pay will constitute "new information" if the defendant has "made a good faith effort to post the required bail[.]" If Thomas cannot post the current bail by using his own funds and any funds provided by his friends and family, then he is entitled to a bail review hearing under this provision of the bail statute.
For these reasons, we AFFIRM the superior court's order.
Entered at the direction of the Court.