Andrew Daniel Vavra v. State of Alaska

In the Court of Appeals of the State of Alaska
Andrew Daniel Vavra,
Appellant,
v.
State of Alaska,
Appellee.
Court of Appeals No. A-14031
Order
Bail Appeal
Date of Order: December 21, 2023
Trial Court Case No. 4FA-19-03383CR, 4FA-20-01674CR
Before: 	Wollenberg, Harbison, and Terrell, Judges
Andrew Daniel Vavra appeals the superior court’s order denying his
request for a second bail review hearing concerning his request to be released on bail
pending appeal. For the reasons explained in this order, we remand this matter so the
superior court may clarify its order and, if appropriate, conduct the requested hearing.
Background facts and proceedings
In November 2020, Vavra was convicted of third-degree escape and first-
degree promoting contraband, both felony offenses. 1 After Vavra was sentenced in
those cases, he was released on electronic monitoring and provided a remand date.
While on release, Vavra filed a series of motions asking to delay the
scheduled remand to serve his sentences. The court granted these motions and Vavra’s
remand date was delayed until July 2023. After Vavra was sentenced, but before this
remand date, Vavra was charged in four additional cases with offenses that include
AS 11.56.320(a)(4)(B) (for leaving house arrest and going to unapproved locations
while on bail release for a felony) and AS 11.56.375(a)(3) (for bringing suboxone into the
Fairbanks Correctional Center by hiding it in his anal cavity), respectively. Vavra’s 	two
convictions were separate cases and were entered as part of a global plea agreement that
resolved several outstanding cases.
1

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December 21, 20233 – p. 2
third-degree misconduct involving weapons (a felony) and several counts of violating
the conditions of his release.
In September 2021, Vavra filed two motions asking the superior court to
grant him credit for the time he spent on electronic monitoring.2 	In July 2022, the court
granted his request in part, ruling that Vavra would receive credit against his sentences
for some of that time. Vavra appealed that determination.3
In July 2023, just before Vavra finally remanded to serve his sentences for
third-degree escape and first-degree promoting contraband, Vavra asked the superior
court to release him on bail pending 	appeal. The court denied 	his request after
conducting a hearing.4 	Vavra then filed a request for a second bail review hearing,
which the court also denied. This appeal followed.
Why we remand this case for clarification
A defendant 	who has been convicted 	of a crime 	does 	not have a
constitutional right to be released on bail. 5 	However, under AS 12.30.040(a), the
court may release a defendant on bail pending appeal if the defendant shows by clear
and 	convincing 	evidence 	that they 	“can be 	released 	under conditions 	that will
reasonably assure the appearance of [the defendant] and the safety of the victim, other
persons, and the community.”6
2 	Vavra filed one motion in each of his two cases.
3 	Vavra’s opening brief in that case is due on February 29, 2024.
4 	Vavra 	also 	requested 	pretrial 	release 	in 	his 	pending 	third-degree 	weapons
misconduct case. The court conducted a single hearing to address both bail requests. Vavra
appeals only the order denying his request for bail pending appeal.
5 	State v. Wassillie, 606 P.2d 1279, 1283 (Alaska 1980).
6 	This provision is subject to certain exceptions not relevant here.

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December 21, 20233 – p. 3
In its opposition to Vavra’s requests for release, the State argued that
avra could not establish by clear and convincing evidence that he could be released
nder conditions that would reasonably assure his appearance and the safety of the
ommunity. The State pointed out that Vavra had been convicted of two felonies, and
hat while Vavra was released on electronic monitoring, but before he remanded to
erve his sentences, Vavra repeatedly violated the conditions of release, including by
ommitting a third felony.
At the bail hearing in August 2023, Vavra’s wife, Rebecca Tyndall,
estified, expressing her willingness 	to be a third-party custodian for Vavra. Vavra’s
ttorney urged the court to approve Tyndall as a third-party custodian, and he offered
hat Vavra could also be on electronic monitoring if necessary.
The superior court denied Vavra’s request to be released on bail pending
ppeal. The court explained that it was considering whether Vavra had shown clear and
onvincing evidence that the conditions of release he proposed would reasonably assure
is appearance and the safety of the community. The court focused on Vavra’s repeated
rug use, stating that although it was not “as concerned” about Vavra’s risk of failing
o appear, it did “have a hard time finding, by clear and convincing evidence, that there’s
oing to be much to motivate you, based on the bail proposal, to stop using.” 	After
his, the court found that Tyndall did not have the focus needed to be a successful third-
arty custodian for Vavra, and stated that Vavra instead “needs a very, very strong third-
arty custodian.”
Several weeks later, Vavra filed a request for a second bail hearing,
roposing two new third-party custodians and GPS ankle monitoring. The superior
ourt responded that Vavra had provided “insufficient information” about his proposal.
avra then filed a more detailed proposal, proposing to remain on house arrest at his
other’s house while under sight and sound monitoring by two third-party custodians,
s well as GPS and drug monitoring.
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The superior court denied this request for a second hearing in a written
order, stating, “The court has considered Mr. Vavra’s request for bail pending appeal.”
The court did not provide any further explanation for its decision. In response, Vavra
filed a motion for reconsideration, but the court denied this motion without comment.
Vavra now appeals the court’s order denying his request for a second bail
review hearing. He contends that the court improperly determined that his drug use in
and of itself made him a danger to the community. He also contends that the court
abused its discretion when it declined to conduct a second hearing to consider his new
proposal (which included two new proposed third-party custodians).
The State argues that the superior court did not abuse its discretion by
declining to conduct a second hearing. The State contends that, given Vavra’s prior
criminal history, his repeated violations of conditions of pretrial release in these cases,
his intransigent 	drug use, and his pending felony charge of misconduct involving
weapons (which he allegedly committed while on release before remanding for the two
felony cases), the superior court acted reasonably in determining that Vavra’s new
release plan would not reasonably assure the safety of the community.
But the record does not establish that the superior court actually made a
finding that Vavra failed to prove by clear and convincing evidence that his release plan
would reasonably assure the safety of the community. Instead, as Vavra points out,
during the bail hearing, the court appeared to focus on Vavra’s ongoing drug use and
on the inadequacy of his proposed third-party custodian. Indeed, the court stated that
Vavra needed “a very, very strong third-party custodian,” suggesting that the option for
appointing one remained open.
In its subsequent written order denying Vavra’s request for a second bail
hearing, the court stated that it had already considered Vavra’s request for bail pending
appeal. But the court gave no indication that it had considered the new information
provided by Vavra, including two new proposed third-party custodians and location and
Vavra v. State – A-14031
December 21, 20233 – p. 4

drug monitoring.
Under these circumstances, we must remand this case to the superior court
so that it may clarify its decision. On remand, the court should clarify its order on
Vavra’s request for a second bail hearing. If the court has already determined that Vavra
cannot establish 	by clear and convincing 	evidence 	that 	any combination 	of bail
conditions 	exist 	that will 	reasonably assure his appearance and the safety of the
community, the court shall clearly state this finding and provide a written or oral
explanation of its decision. But if the court believes that a stronger third-party custodian,
together with the proposed monitoring, 	could reasonably assure the safety of the
community, the court shall conduct the requested bail review hearing and then enter an
updated order.
________________________________
Vavra v. State – A-14031
December 21, 20233 – p. 5
Entered at the direction of the Court.
Clerk of the Appellate Courts
Meredith Montgomery
cc: 	Judge Bennett
Trial Court Clerk
Distribution:
Email:
John, Robert
Black, Ann B.