Scott Gardner v. State of Alaska

In the Court of Appeals of the State of Alaska
Scott Wayne Gardner,
Appellant,
v.
State of Alaska,
Appellee.
Court of Appeals No. A-13751
Order
Date of Order: 12/21/2020
Trial Court Case No. 3PA-16-01567CR
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
Following a bench trial, Scott Wayne Gardner was convicted of first-degree
assault and making a false report. Gardner appealed his convictions. Before briefing
began, the parties filed a joint motion for summary disposition, asserting that the trial
court had failed to conduct an inquiry into whether Gardner knowingly, intelligently, and
voluntarily waived his constitutional right to a jury trial and that Gardner was therefore
entitled to a new trial. We agreed with the parties and reversed Gardner’s convictions.1
Following our decision reversing Gardner’s convictions, Gardner’s case
returned to pretrial status. Because he is now in pretrial status, Gardner is
constitutionally entitled to have reasonable bail conditions set under Article I, Section
11 of the Alaska Constitution.2
1 See Gardner v. State, A-13261, Summary Disposition No. 0140, at *2 (Alaska App.
Aug. 5, 2020) (unpublished).
2 Article I, Section 11 of the Alaska Constitution entitles criminal defendants “to be
released on bail, except for capital offenses when the proof is evident or the presumption
great[.]”

Gardner v. State, No. A-13751
December 21, 2020 — p. 2
Gardner filed a request for a bail hearing, along with a bail proposal that
included electronic monitoring with residence and employment in Anchorage, alcohol
monitoring, and a $1,500 cash performance bond. The State opposed Gardner’s release
plan.
Following the hearing, the superior court rejected Gardner’s proposal, but
it did not otherwise set bail. Gardner therefore remains under a no-bail order.
Gardner now appeals, arguing that the court erred in declining to set any
bail. We agree. As we said in Hamburg v. State, “Article I, Section 11 . . . (in
conjunction with section 12, the provision that prohibits excessive bail) guarantees that
the court must set reasonable conditions of bail release for a defendant who has not yet
been convicted.”3 Because Gardner’s convictions have been vacated, and his case has
returned to pretrial status with charges pending, he is entitled to have reasonable
conditions of bail release set.
The State acknowledges that Gardner is entitled to bail in this case while
awaiting retrial. But the State also notes that Gardner was on probation in two prior
felony cases at the time of the underlying events in this case and that, after Gardner was
initially convicted in this case, the trial court imposed his remaining suspended time in
these two prior cases. Gardner did not appeal his probation revocation or disposition and
was therefore required to serve this time. The State argues that because the current
3 Hamburg v. State, 434 P.3d 1165, 1165 (Alaska App. 2018) (citing Martin v. State,
517 P.2d 1389, 1393-95 (Alaska 1974)); see also Torgerson v. State, 444 P.3d 235, 237
(Alaska App. 2019) (“While the Alaska Supreme Court has declared that a criminal
defendant is not necessarily entitled to bail in an amount the defendant can post, a judge may
not set bail in an amount that goes beyond that which is necessary to fulfill the purposes of
bail — i.e., to reasonably assure the defendant’s appearance and the safety of the alleged
victim, other persons, and the community.”).

Gardner v. State, No. A-13751
December 21, 2020 — p. 3
record does not establish whether Gardner has fully served the sentence on his petitions
to revoke probation, we should remand for clarification of the record — i.e., a
determination of whether Gardner is time-served on his probation sentence — and if he
has completed that sentence, to set bail in this case in light of the law applicable to
pretrial bail.
But Gardner is entitled to a pretrial bail order in this case, regardless of
whether he is still serving time in other cases.4 Accordingly, we VACATE the trial court’s
no-bail order and REMAND this case for a bail hearing and consideration of an
appropriate bail order under the standards applicable to pretrial bail release. After
considering the positions of the parties, including any bail proposals by Gardner, the
court “shall impose the least restrictive condition or conditions that will reasonably
assure [Gardner’s] appearance and protect the victim, other persons, and the
community.”5
Entered at the direction of the Court.
4 Alaska Const. art. I, § 11. As a practical matter, the Department of Corrections will
not release Gardner if he has been remanded to serve a sentence in another case and has not
yet finished serving that time.
5 Former AS 12.30.011(b) (2016); Torgerson, 444 P.3d at 237. Gardner’s case is
governed by the bail statutes in effect in 2016, when the charged offense in this case
occurred. See Pisano v. State, Court of Appeals File No. A-13089 (Order dated May 24,
2018), at 3, 10.

Gardner v. State, No. A-13751
December 21, 2020 — p. 4
Clerk of the Appellate Courts
________________________________
Sarah Anderson, Deputy Clerk
cc: Court of Appeals Judges
Judge Kristiansen
Palmer Trial Court Appeals Clerk
Distribution:
Email:
Hedland, Eric, Public Defender
Burton, Lindsey M.