Nathan Jimmy Peter v. State of Alaska

In the Court of Appeals of the State of Alaska
Nathan Jimmy Peter,
Appellant,
v.
State of Alaska,
Appellee.
Trial Court Case Nos. 4FA-23-01047/01032CR
Court of Appeals Nos. A-14225/
A-14226
Order
Bail Appeal
Date of Order: October 4, 2023
Before: Wollenberg, Harbison, and Terrell, Judges.
Nathan Jimmy Peter appeals from the bail orders issued in these cases on
June 16, 2023. For the reasons explained in this order, we remand this case to the trial
court with directions to reconsider whether to require Peter to post cash performance
and appearance bonds, given that it also required Peter to be on “24/7” house arrest,
with electronic GPS monitoring by the Pretrial Enforcement Division.
Procedural background
This appeal involves two cases. In one case, Peter is charged with second-
degree theft and third-degree criminal mischief for cutting a hole in a fence and stealing
catalytic converters and other equipment valued at approximately $13,600 from a
Fairbanks business. During Peter’s first appearance in that case, he testified under oath
that he had no income over the past year and no savings, and the court appointed counsel
to represent him. The prosecutor informed the court that Peter’s criminal history
consisted of a 2020 conviction for fourth-degree assault and a 2011 conviction for
driving under the influence, and asked the court to set bail at a $2,000 performance
bond. The court noted that the case involved the theft of property with a “significant”

Peter v. State – p. 2
File Nos. A-14225/14226
October 4, 2023
value and also that Peter had provided assistance to the police. The court set bail at a
$1,000 unsecured appearance bond and a $1,500 performance bond.
In the second case, Peter is charged with second-degree burglary and
second-degree theft for breaking into 	a warehouse and stealing wire valued at
approximately $2,595. At Peter’s first appearance in that case, the prosecutor again
noted Peter’s criminal history, and asked the court to require Peter to post a $2,000
performance bond and a $1,000 appearance bond secured by a 10% posting. After Peter
told the court that he could not afford to post $2,100, the court set bail at a $1,000
unsecured appearance bond and a $1,500 performance bond.
Following his initial appearance in each case, Peter filed an application
for his first bail hearing, asking the court to release him on electronic monitoring by the
Pretrial Enforcement Division (PED), without requiring a cash performance bond. The
court scheduled a single hearing to address bail in both cases.
During the bail hearing, Peter’s counsel explained to the court that Peter
had no money to post as bail but that, if released, he would be employed working for a
contractor on a commercial renovation project. The attorney told the court that Peter
had lived his entire life in Fairbanks, that his entire family lives in Alaska, mostly in the
Fairbanks area, and that he has a place to live in Fairbanks with his two children and
their mother. The attorney reminded the court of Peter’s minimal criminal history and
pointed out that both of his prior offenses were misdemeanors. The attorney asked the
court to release Peter on PED electronic monitoring without requiring the posting of
cash bail.
The State opposed this request. The prosecutor told the court that, in
addition to the charges in the cases before the court, the State had also filed a third case

Peter v. State – p. 3
File Nos. A-14225/14226
October 4, 2023
against Peter, alleging third-degree theft (for stealing from Safeway). The prosecutor
explained that the State had requested a summons in that case.
In response to these arguments, the court stated that little was known about
Peter’s family ties or employment status. The court then focused on the high value of
the stolen property (finding that the property was worth “at least $20,000”) and found
that Peter had engaged in “unabated, unmitigated theft conduct” over a period of a
couple months. The court also found that, if Peter were to work for a contractor, he
would likely “be going to similar type businesses,” thus implying that if Peter were
allowed to do such work, he might commit thefts at his job site.
The court ultimately issued an order requiring Peter to remain on “24/7”
house arrest, enforced by GPS location monitoring through PED. The court’s order
indicated that Peter could leave house arrest only “with PED approval and no travel
deviations,” and then only for medical and attorney appointments, court hearings, and
employment. The court also imposed exclusion zones to keep Peter away from the
businesses that are alleged to be the victims of these cases. Despite adding PED
electronic monitoring and house arrest, the court retained cash bail. The court lowered
the required performance bonds from $1,500 per case to $1,000 per case, but it
increased Peter’s appearance bonds from $1,000 to $1,500 (unsecured) per case. Thus,
the overall bail amount remained unchanged, although the required cash posting
decreased from $3,000 to $2,000.
Peter now appeals the trial court’s order requiring the posting of these
bonds.

Peter v. State – p. 4
File Nos. A-14225/14226
October 4, 2023
Why we remand this case to the trial court
Peter argues that the trial court erred by (1) providing an insufficient
explanation for increasing the appearance bonds, and (2) requiring him to post cash
performance bonds. The State concedes error as to the first issue, but it contends that
the trial court properly determined that the cash performance bonds were needed to
protect the public.
“The purpose of an appearance bond is to secure the defendant’s presence
in court when required[, while t]he purpose of a performance bond is to secure the
defendant’s compliance with other conditions of release.”1 “Appearance in court may
not be a condition of a performance bond.”2 Thus, these two bonds have entirely
separate purposes. As we have explained, the State concedes that the trial court did not
provide an adequate explanation for increasing the appearance bonds in this case.
This concession is well-taken.3 During the bail hearing, Peter’s attorney
told the court that he had lived his entire life in Fairbanks, that most of his family,
including his two children, live in Fairbanks, and that he currently has employment in
Fairbanks. Furthermore, as the court pointed out, Peter has no history of failing to
appear in court. Despite this record, the court ordered Peter to pay a higher appearance
bond in each case. We accordingly agree with the parties that this case must be
remanded to the trial court so that it may reconsider whether these higher bonds are
needed and, if so, to provide a clear explanation for its decision.
1 	Pisano v. State, 2019 WL 12043664, at *2 (Alaska App. Sept. 23, 2019)
(unpublished bail order).
2 	Alaska R. Crim. P. 41(c)(1).
3 	See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972).

Peter v. State – p. 5
File Nos. A-14225/14226
October 4, 2023
We next consider whether the court must also reconsider its order
requiring Peter to post the two $1,000 performance bonds. Under Alaska law, a criminal
defendant must be released on their own recognizance or on an unsecured appearance
bond, unless the court finds that such release “will 	not reasonably ensure the
[defendant’s] appearance” or will pose a danger to the victim or the community.4 Even
then, the court must “impose the least restrictive . . . conditions” that are needed to
reasonably 	ensure 	the 	defendant’s 	appearance 	and 	to 	protect 	the 	victim 	and
community.5 In determining what conditions to impose, the court must consider the
bail factors set out in AS 12.30.011(c).
Here, the court’s stated performance concern was Peter’s “unabated,
unmitigated theft conduct.” To protect the two businesses that were the alleged victims
of the pending cases, the court ordered Peter not to return to those locations. The court
also required Peter to submit to GPS location monitoring by PED in order to enforce
both his house arrest and an exclusionary zone it placed around the two businesses.
To protect the public from Peter’s conduct, the court added a condition
requiring “24/7” house arrest with limited exceptions for medical and attorney
appointments, court appearances, and employment. And although the court suggested
that Peter would commit thefts at his workplace if he were to work for a contractor, the
court nevertheless allowed Peter to work at any job, as long as the location and hours
were approved by PED. But the court required Peter to 	post two $1,000 cash
performance bonds, suggesting that these bonds were needed to mitigate the risk that
Peter would commit theft offenses at his workplace. The court explained that it declined
4 	AS 12.30.011(a) and (b).
5 	AS 12.30.011(b).

Peter v. State – p. 6
File Nos. A-14225/14226
October 4, 2023
to reduce the performance bonds by much “because of the extent of financial damage
to these victims,” but it did not find that the amount of financial damage was tied to any
ongoing performance risk.
To the extent the court’s explanation suggests that bail is punishment, this
is incorrect. The question is whether bail is necessary to ensure future appearance and
performance, and what level of bail is the least restrictive to meet these goals. As we
have explained, the requirement of a cash posting is permissible only if it is the least
restrictive means of achieving the trial court’s stated performance or appearance
concerns. The State contends, however, that monetary bail was required in this case in
addition to house arrest with PED electronic monitoring because Peter’s “ongoing theft
and burglary behavior is something that cannot be mitigated when he is out in the public
working.”
Peter’s attorney told the court that Peter did not have any available assets
to post cash bail. This was supported by Peter’s testimony at his first appearance that
he had no income or savings.
For this reason, if the court was concerned that Peter would commit thefts
while working for a contractor, instead of imposing a condition that would almost
certainly prevent Peter from being released, it should have considered other conditions
that would protect the public from this behavior if Peter were released. For example,
the court could have imposed a condition that Peter could not be employed at a
construction site or that he could not work for a contractor. Such conditions would have
addressed the court’s performance concerns while still allowing Peter to be released
from custody.
Because these and other less restrictive conditions were available to
protect the public, the court should not have required the posting of a significant cash

Peter v. State – p. 7
File Nos. A-14225/14226
October 4, 2023
performance bond without first considering whether these conditions would reasonably
ensure the public’s safety.
Conclusion
This case is REMANDED to the trial court with directions to reconsider
less restrictive alternatives to the requirement that Peter post two $1,000 cash
performance bonds and to reconsider whether it was necessary to increase Peter’s
appearance bonds.
Entered at the direction of the Court.
Clerk of the Appellate Courts
________________________________
Ryan Montgomery-Sythe,
Chief Deputy Clerk
cc: 	Judge Bahr
Trial Court Clerk – Fairbanks
Distribution:
Email:
Bartenstein, Erin, Public Defender
Plantamura, Dominic Gerard