Jeremy Paul Fichtner v. State of Alaska

In the Court of Appeals of the State of Alaska
Jeremy Fichtner,
Appellant,
v.
State of Alaska,
Appellee.
Court of Appeals No. A-13987
Order
Date of Order: 6/01/2022
Trial Court Case No. 3SW-20-00276CR
Before: Wollenberg, Harbison and Terrell, Judges
Jeremy Paul Fichtner appeals from the trial court’s March 30, 2022 decision
denying his request to approve his mother, Mary Fichtner, as his third-party custodian.
For the reasons explained in this order, we affirm the trial court’s decision.
This is the second time Fichtner has appealed the trial court’s bail order in
this case. We described the facts of this case in our previous order, and for convenience
we recite them again here.1
On December 3, 2020, Fichtner was charged with one count each of
second-degree, third-degree, and fourth-degree misconduct involving a controlled
substance, and five counts of second-degree misconduct involving weapons.2 He was
subsequently released to the third-party custody of his sister, Cozilynn Fichtner. The
court required him to remain with his third-party custodian at all times, post a $10,000
1 See Fichtner v. State, 2022 WL 697553 (Alaska App. Mar. 8, 2022) (unpublished bail
order).
2 AS 11.71.021(a)(1), AS 11.71.030(a)(9), AS 11.71.040(a)(1), and AS 11.61.195(a)(1),
respectively.

Fichtner v. State – p. 2
File No. A-13987 – 6/01/2022
cash performance bond, and comply with Pretrial Enforcement Division (PED)
supervision including electronic monitoring and drug monitoring.
The court later amended Fichtner’s conditions of release by adding an
additional third-party custodian, his father, John Fichtner. The court also reduced the
performance bond amount to $5,000 cash and ordered Fichtner not to possess controlled
substances except with a valid prescription. There was no change to the PED electronic
and drug monitoring requirements.
Approximately five months later, on June 1, 2021, Fichtner was charged,
in the same case, with violating the conditions of his release.3 The complaint adding this
new charge alleged that Fichtner reported to the PED office and submitted to a urine
analysis which was positive for opiates. At Fichtner’s arraignment on this charge, the
court required Fichtner to post an additional $500 performance bond and to be
supervised by a new third-party custodian.
On November 15, 2021, the court conducted a bail review hearing to
determine whether to approve Fichtner’s mother, Mary Fichtner, as his new third-party
custodian. But at the conclusion of the hearing, the court expressed concern about
approving Fichtner’s mother as a third-party custodian. The court explained that its
concern was based on testimony Fichtner provided at a recent evidentiary hearing on his
motion to suppress evidence. At this evidentiary hearing, Fichtner had testified about
his upbringing and, in particular, about his family’s views about the police. Based on
this testimony, the trial court denied Fichtner’s request to approve his mother as a third-
party custodian.
3 AS 11.56.757(b)(1).

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File No. A-13987 – 6/01/2022
In his first appeal of the court’s order declining to approve Mary Fichtner
as a third-party custodian, Fichtner pointed out that when the trial court ruled on his
motion to suppress, it specifically held that Fichtner’s testimony about his upbringing
was not credible. Fichtner accordingly argued that the trial court should not have relied
on this testimony as the basis for denying his request to approve his mother as a third-
party custodian. This Court concluded that, because the trial court’s treatment of
Fichtner’s testimony was inconsistent, it was necessary to remand the matter for
clarification and for reconsideration of Fichtner’s request to approve his mother as a
third-party custodian.
On remand, the trial court again denied Fichtner’s request to approve his
mother as a third-party custodian. The court clarified that it believed Fichtner’s
testimony about how he was raised, abrogating its previous findings that Fichtner was
not credible. Relying on this finding, the court found that it did not have “confidence”
in Mary Fichtner as a third-party custodian. The court held that, given Fichtner’s
“parents’ and his brothers’ and sisters’ philosophy,” as well as “the level of charges here,
with the large quantity of substances, with the multiple handguns, with Mr. Fichtner
already having alleged to have violated bail conditions once while in the custody of his
family,” it would not approve Mary Fichtner as a third-party custodian.
We have explained that the critical question with respect to the approval of
a third-party custodian is whether the proposed third-party custodian is willing and able
to fulfill the supervisory duties that will be required of them.4 In this case, the trial court
4 Francis-Fields v. State, 2020 WL 9173374, at *1 (Alaska App. Dec. 17, 2020)
(unpublished bail order).

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File No. A-13987 – 6/01/2022
implicitly found that Mary Fichtner would not fulfill the supervisory duties required of
her. In making this finding, the trial court relied not only on Fichtner’s testimony about
how he was raised, but also on the circumstances of the offense and Fichtner’s previous
violation of his bail conditions that occurred while Fichtner was supervised by his father
and sister as third-party custodians. Under these circumstances, we cannot find that the
trial court’s rejection of Mary Fichtner as a third-party custodian was an abuse of the
court’s discretion.
Conclusion
We AFFIRM the trial court’s order denying Fichtner’s request to approve
his mother, Mary Fichtner, as a third-party custodian.
Entered at the direction of the Court.
Clerk of the Appellate Courts
________________________________
Meredith Montgomery
cc: Judge Gist
Trial Court Clerk - Seward
Distribution:
Email:
Brewster, Lacey Jane, Public Defender
Scott, Samuel D.