Melvin Steve Harry v State of Alaska

In the Court of Appeals of the State of Alaska
Melvin Steve Harry, )
) Court of Appeals No. A-13255
Appellant, )
v. ) Order
)
State of Alaska, )
)
Appellee. ) Date of Order: 10/8/2018
)
Trial Court Case No. 4BE-18-00719CR
[Before: Chief Judge Mannheimer, Judge Allard, and Judge
Wollenberg.]
Melvin Steve Harry is charged with three counts of indecent exposure, and
he is currently being held in custody in lieu of cash bail in the amount of $10,000.
The record of the bail hearing shows that Harry suffers from mental illness.
At the time of these offense, Harry was housed at Morgan House, an assisted living
facility run by the Yukon-Kuskokwim Health Corporation. At Morgan House, Harry
received psychotherapy and medication, but the facility is not a “closed” facility, and the
staff did not constantly monitor Harry’s whereabouts.
At the bail hearing, the State argued that Harry should be held in custody
unless the Yukon-Kuskokwim Health Corporation could arrange for Harry to be subject
to a higher degree of supervision and control. Harry’s attorney argued that Harry should
be allowed to continue living at Morgan House. However, Harry’s clinician at Morgan
House, Bethel Adiele, told the court that he was uncertain whether Harry was able to
understand — much less honor — the conditions imposed by the court. When the court

Harry v. State, No. A-13255
October 8, 2018 — p. 2
asked Adiele whether the Health Corporation could place Harry in a different home or
facility with a higher level of supervision, Adiele told the court that he had tried to
arrange a meeting to discuss this possibility, but Adiele did not know when this meeting
would take place.
After considering the matter, the court imposed a monetary bail of $10,000
— an amount that was beyond Harry’s means. The court explained its decision by
declaring that Harry posed a danger to the community, and that there was “no alternative
other than leaving [Harry] in custody pending his trial”, given his clinician’s uncertainty
as to whether Harry could understand and abide by non-monetary conditions of bail.
We conclude that the court abused its discretion when it imposed monetary
bail for the express purpose of keeping Harry in custody.
The record shows that the court was willing to consider releasing Harry to
an assisted living home (or similar facility) so long as Harry received an increased level
of supervision and monitoring of his whereabouts. Harry’s attorney and Harry’s care-
providers were apparently unable to offer a package of care and housing that satisfied the
court’s concerns. But the proper judicial response, in these circumstances, was not to
impose monetary bail in an unreachable level. Rather, the court should have imposed
bail conditions that described the kind of living facility and level of supervision that
would be satisfactory to the court.
The court could properly hold Harry in custody until Harry’s attorney
offered a living and treatment proposal that met the court’s conditions. But it was an
abuse of discretion for the court to impose monetary bail that had nothing to do with the
court’s underlying concerns — monetary bail whose sole purpose was to keep Harry in

Harry v. State, No. A-13255
October 8, 2018 — p. 3
jail, and which would, in fact, prevent Harry from being released even if Harry’s attorney
came up with a residential proposal that met the court’s concerns.
For these reasons, the trial court’s bail decision is VACATED, and the
court is directed to impose new conditions of bail.
Entered at the direction of the Court.
Clerk of the Appellate Courts
/s/ W. Kyle Roberts
W. Kyle Roberts, Deputy Clerk
cc: Court of Appeals Judges
Judge Finn
Trial Court Appeals Clerk
Distribution:
Callie Patton Kim
Assistant Public Defender
900 W 5th Ave Ste 200
Anchorage AK 99501
Donald E. Soderstrom
Office of Criminal Appeals
1031 W. 4th Ave, Suite 200
Anchorage AK 99501