Adam Daniel Fleischman v. State of Alaska

In the Court of Appeals of the State of Alaska
Adam Fleischman,
Appellant,
v.
State of Alaska,
Appellee.
rial Court Case No. 3AN-21-00057CR
Court of Appeals No. A-13977
Order
Date of Order: July 12, 2022
T
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
Adam Daniel Fleischman appeals from the trial court’s February 8, 2022
bail order requiring him to post a $1,000,000 cash performance bond and a $250,000
cash appearance bond. For the reasons explained in this order, we affirm the trial court’s
order denying Fleischman’s request to reduce the bail to the amount requested by
Fleischman — i.e., a $40,000 performance bond and a $250,000 unsecured appearance
bond. But because the trial court found that bail lower than what is currently ordered
may be adequate to reasonably ensure Fleischman’s appearance in court and protect the
public, we remand this matter to the trial court with instructions to impose a lower bail.
Fleischman is charged with one count of first-degree murder and two counts
of second-degree murder for the January 2021 killing of his wife.1 According to the
charging document, Fleischman shot his wife in the head while she was seated on the
toilet, when the couple’s two young children were in the residence. At Fleischman’s
initial arraignment on January 5, 2021, his bail was set at a $1,000,000 cash performance
bond and a $250,000 cash appearance bond, along with conditions of release that
included house arrest enforced by PED location monitoring. 	This bail has remained
AS 11.41.100(a)(1)(A) and AS 11.41.110(a)(1) and (2), respectively.1

Fleischman v. State - p. 2
File No. A-13977
July 12, 2022
unchanged since then, although the court has twice reviewed the bail at Fleischman’s
request.
Fleischman’s first bail review hearing took place on May 28, 2021. At that
hearing, Fleischman asked the court to lower the performance bond to $40,000 and to
convert the $250,000 cash appearance bond to an unsecured appearance bond. After
hearing testimony about Fleischman’s finances through his aunt, Frances Souza, the trial
court questioned the need for a $1,000,000 performance bond and a $250,000
appearance bond. It nevertheless denied Fleischman’s request without any reduction in
his bail.
Approximately seven months later, Fleischman requested a second bail
review hearing. Fleischman claimed that he had new information — specifically, that
he had contracted with Alaska Defendant Monitoring (ADM) to use a “high-risk”
monitoring system to enforce his house arrest — that entitled him to further review of
bail under AS 12.30.006(d)(1).
In February 2022 the court considered Fleischman’s second request to
reduce his bail. Although the State objected that the change from monitoring by PED
to monitoring by ADM’s high-risk monitor was not sufficient “new information” to
entitle Fleischman to review of his bail, the trial court conducted the hearing.
During the hearing, a representative of ADM testified about the ways in
which ADM’s high-risk monitoring system would be more effective in monitoring
Fleischman’s house arrest than PED’s location monitoring system. Fleischman’s aunt
also testified for a second time, providing updated information about Fleischman’s
finances.

Fleischman v. State - p. 3
File No. A-13977
July 12, 2022
At the close of the hearing, the prosecutor told the court that “given the
testimony that we’ve heard . . . I could see you lowering [the performance bond] to a
couple hundred thousand,” but he objected to any change in the appearance bond. And
although the court acknowledged that the existing bail was “high” and “need[ed] to be
reduced,” it declined to modify the bail order.
The trial court found that, given the potential for a 99-year sentence,
Fleischman presented a risk of flight. The court noted that Fleischman no longer had
family living in the state and that he was not offering to have a third-party custodian
reside with him. Thus, it found that, while the high-risk offender monitoring “provide[d]
some additional level of security,” a cash appearance bond was needed.
The trial court additionally found that the alleged offense was “as serious
as it [could] possibly be” and that the State’s evidence, which included Fleischman’s
confession, was strong. 	It noted that the bail proposal did not include posting the
$20,000 Fleischman had in savings, nor did it include posting the $30,000 that his aunt
had in savings. The court explained that it was “almost unheard of” for a family to hold
“that amount of cash . . . in reserves” and that “[i]t’s typically the other way around
where the proposal is more than the family has . . . , which provides the court with some
level of assurance that . . . the offender isn’t going to walk away . . . and put the family
at risk.” Finally, the court expressed concern about Fleischman’s proposed residence in
a multi-unit apartment building where enforcing house arrest would be difficult.
As we have explained, the trial court denied Fleischman’s request to lower
the bail, and Fleischman now appeals that decision to this Court.
On appeal, Fleischman contends that the trial court abused its discretion
when it declined to reduce his bail even though it acknowledged that the bond was

Fleischman v. State - p. 4
File No. A-13977
July 12, 2022
unnecessarily high. He asks us to remand this matter to the trial court with instructions
to approve his bail proposal.
In the present case, Fleischman asked the trial court to lower the
performance bond to $40,000 and explained that the bond would be paid by his aunt. As
the trial court recognized, this would leave $20,000 of cash in his savings account and
an additional $30,000 in his aunt’s savings account. Fleischman did not offer to post any
of his own money as part of his bail proposal.
In denying Fleischman’s request, the trial court found that this arrangement
would provide scant incentive for Fleischman to follow his conditions of release. The
court also relied on the severity of the alleged offense, which it found to be “as serious
as it [could] possibly be,” and the strength of the State’s case. 	And in denying
Fleischman’s request to convert the appearance bond to an entirely unsecured bond, the
court found — based on Fleischman’s exposure to a potential 99-year sentence and the
fact that his entire family lives outside of Alaska — that Fleischman is a flight risk.
Although Article I, Section 11 of the Alaska Constitution entitles a person
accused of a crime to be released on bail, defendants do not have the absolute right to a
monetary bail that they can afford.2 Instead, under AS 12.30.011(b), a court is required
to impose the least restrictive condition or conditions of release that will reasonably
ensure the defendant’s appearance and protect the victim, other persons, and the
community. Additionally, in this case, because Fleischman is charged with unclassified
and class A felonies, there is a rebuttable statutory presumption that there is “a
Gilbert v. State, 540 P.2d 485, 486 n.12 (Alaska 1975) (citing Reeves v. State, 411
P.2d 212 (Alaska 1966)).
2

Fleischman v. State - p. 5
File No. A-13977
July 12, 2022
substantial risk” that Fleischman will not appear and that he poses a danger to other
persons and the community.3 We accordingly conclude that the trial court did not abuse
its discretion when it denied Fleischman’s bail proposal.
We nevertheless also conclude that the trial court must reconsider its bail
order in this case. As Fleischman points out, at his first bail hearing, the trial court noted
that it did not “think that the million dollars and the 250,000 [dollars] . . . [were]
necessarily appropriate,” but it nevertheless declined to change the bail. Similarly, at
Fleischman’s second bail hearing, which was held eight months later, a different judge
acknowledged that the existing bail was “high” and that it “need[ed] to be reduced.” And
the prosecutor told the court, “[G]iven the testimony that we’ve heard . . . I could see you
lowering [the performance bond] to a couple hundred thousand.” Thus, there was no
disagreement that the current bail is higher than is necessary to reasonably ensure
Fleischman’s appearance and protect the community. On this basis, we conclude that the
court’s order continuing Fleischman’s bail without any reduction was an abuse of its
discretion.4
There is one additional issue we must address in this case. In its response
to Fleischman’s bail appeal, the State urges us to affirm the trial court’s bail order
because, in its view, Fleischman’s offer to have his house arrest monitored by ADM was
not “new information” that would entitle him to a bail hearing under AS 12.30.006(d)(1).
3 AS 12.30.011(d)(2)(A).
4 We also note that AS 12.30.011(b)(1) does not authorize the court to require an
appearance bond to be secured by an amount that exceeds ten percent of the amount of the
bond.

Fleischman v. State - p. 6
File No. A-13977
July 12, 2022
The State is correct that a defendant is generally entitled to a second or
subsequent bail review hearing only if the defendant presents the court with information
that was not considered at previous bail hearings.5 But because the underlying right of
pretrial release is guaranteed by the Alaska Constitution, we have recognized that courts
should narrowly construe the statutory restrictions on pretrial release set out by
AS 12.30.006.6 In other words, 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).7
In the present case, a representative from ADM testified about the many
ways in which ADM’s “high-risk monitor” would provide better enforcement of the
court’s conditions than other monitors. 	We conclude that this constituted “new
information” for purposes of AS 12.30.006(d)(1), and we accordingly reject the State’s
contention that Fleischman was not entitled to the second bail hearing that was conducted
in this case.
Conclusion
We AFFIRM the trial court’s order denying Fleischman’s request to reduce
the bail in this case to a $40,000 cash performance bond and a $250,000 unsecured
appearance bond. However, we REMAND the matter to reconsider bail and to impose
a lower cash bond amount.
5 AS 12.30.006(d)(1).
6 Karr v. State, 459 P.3d 1183, 1185 (Alaska App. 2020).
7 Id.

________________________________
F	Flleeiisscchhm	maann vv.. SSttaattee -- pp.. 77
F	Fiillee N	Noo.. A	A--1133997777
JJuullyy 1122,, 22002222
Entered at the direction of the Court.
Clerk of the Appellate Courts
/s/ M. Montgomery
Meredith Montgomery
cc: 	Judge Peterson
Trial Court Clerk
Distribution:
Email:
Lockwood, Nathan H., Public Defender
Shorey, Daniel K