Anthony Michael Pisano v State of Alaska

In the Court of Appeals of the State of Alaska
Anthony Michael Pisano, )
) Court of Appeals No. A-13289
Appellant, )
v. ) Order
)
State of Alaska, )
)
Appellee. ) Date of Order: January 16, 2019
)
Trial Court Case # 3AN-17-07343CR
[Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges.]
This case is before us for a second time on bail appeal. The defendant,
Anthony Pisano, is charged with three counts of first-degree murder in connection with
the shooting deaths of three men in September 2017. Pisano is also charged with one
count of third-degree assault for recklessly placing a fourth person, Michael Dupree, in
fear of imminent serious physical injury. Pisano is forty-four years old, and he has no
prior criminal convictions.
Pisano has agreed to (and the court has ordered) the following terms of bail
release: 24-hour supervision by a third-party custodian (Pisano’s mother as the primary
custodian, and a family friend as a substitute, when needed); 24-hour electronic
monitoring through Alaska Pretrial Services; and house arrest with passes only for
verified court, medical, and attorney appointments. Pisano has turned his passport over
to Alaska Pretrial Services and will be required to sign a waiver of extradition as part of
his agreement with the electronic monitoring company. Pisano has also agreed not to

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possess any weapons, and a representative from Alaska Pretrial Services attested to
searching Pisano’s home and removing all weapons.
The only contested issue in both bail appeals has been the amount of
monetary bail.
Pisano originally requested that monetary bail be set at a $50,000 cash
performance bond plus a $25,000 cash or corporate appearance bond. The prosecutor
argued instead that the court should set monetary bail at $1,000,000 — comprised of a
$500,000 cash performance bond plus a $500,000 cash appearance bond.
After a series of hearings, the court imposed monetary bail even greater
than the prosecutor’s recommendations. The court set a total monetary bail of
$1,300,000 cash — comprised of a $900,000 cash performance bond and a $400,000
cash appearance bond.
In Pisano’s first bail appeal, we remanded Pisano’s case to the trial court
to reconsider the monetary component of Pisano’s bail.1 Based on the record that was
then before us, we were unable to determine precisely why the court chose the monetary
amounts it did, or how the court reached the conclusion that these monetary amounts
were the least amounts necessary to reasonably assure Pisano’s appearance and the safety
of the public, particularly given the other components of Pisano’s supervision plan.2
On remand, the superior court held additional hearings. Following these
hearings, the court reduced both components of Pisano’s monetary bail, but the court still
retained bail at a level significantly greater than the $75,000 Pisano had requested. The
1 See Court of Appeals File No. A-13089 (Order dated May 24, 2018).
2 Id.

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court set a total monetary bail of $750,000 cash, comprised of a $500,000 cash
performance bond and a $250,000 cash appearance bond.
Pisano again appeals the monetary bail imposed by the court. Pisano raises
three arguments. First, Pisano argues that, in setting bail, the trial court erred in
speculating about the possibility that he might raise bail money through financial
contributions from third parties and crowd-funding sources. Second, Pisano argues that
the trial court failed to sufficiently explain why a lower monetary amount would not
reasonably assure Pisano’s appearance and good behavior, given the structured release
plan in place. Finally, Pisano argues that, in setting bail, the trial court adopted and
relied on an unsupported view of the evidence.
For the reasons explained in this order, we again remand Pisano’s case to
the superior court for further consideration.
The court’s consideration of crowd-funding
During the remand proceedings, the trial court questioned Pisano’s attorney
about the possibility of Pisano raising the money for his bail through crowd-funding.
The court stated that “it’s a whole new world out there,” and that a person could now
start a business by soliciting money on the internet. Pisano’s attorney responded that the
court should not set bail by speculating about crowd-funding; rather, bail should simply
be set as appropriate to motivate Pisano’s compliance, and the attorney argued that
Pisano and his parents are the type of people who would respect the authority of the
court.
Nevertheless, when the court later set bail, the court ruled that “a super-low
bail amount . . . a bail amount that could be raised by crowd-funding . . . doesn’t have

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any effect . . . on the defendant” because “someone can go on the internet and ask people
to contribute, and [then] have the bail.” The court found that the amount of bail needed
to be “substantial enough” to ensure that the defendant had “skin in the game” — i.e., his
own financial interest in complying with the imposed bail conditions.
We agree with the trial court that monetary bail may be set in an amount
that imposes a financial strain on the defendant, in order to motivate the defendant (and
possibly, the defendant’s family) to comply with the conditions of bail. But in this case,
there was no evidence of the availability of additional sources of funding beyond
Pisano’s family, no indication of how much money, if any, could be raised through
possible “crowd-funding,” and therefore no findings as to the amount of bail that was
needed to ensure that Pisano or Pisano’s family themselves had “skin in the game.”
Rather, the notion that Pisano could raise money for bail through the use of crowd-
funding was entirely speculative and was not supported by any evidence in the record.3
We note that if courts could rely on the mere possibility of crowd-funding,
then a high bail amount would potentially be justified for anyone, particularly someone
with a support network of friends and family, without further evidence that these
supporters were willing or able to provide monetary assistance. We therefore agree with
Pisano that the trial court erred by relying on speculation regarding crowd-funding to
determine the appropriate monetary bail amount.
3 Cf. In re Avignone, 26 Cal.App.5th 195, 208-09, 236 Cal.Rptr.3d 744, 755 (Cal. App.
2018) (holding that the trial court abused its discretion by increasing bail in part based on its
finding that the defendant, who was charged with running a fraudulent investment scheme,
could convince third parties to give him large amounts of money for bail, a finding that was
“entirely speculative”).

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Our continuing concerns regarding the court’s setting of monetary bail
When we remanded Pisano’s case for reconsideration of the previous
$1,300,000 bail, we noted three aspects of the trial court’s order that made it difficult to
evaluate the trial court’s ruling. First, we noted that the court had not explained the
purpose that the large monetary amounts were designed to serve, given the other
components of the release plan, which includes both 24-hour electronic monitoring and
a live third-party custodian. Second, we noted that the court appeared to calibrate its
choice of monetary bail against an unspecified “typical” amount of bail, rather than
attempting to assess the least restrictive bail conditions necessary to reasonably assure
Pisano’s appearance and the protection of the community. In particular, we noted that
the court had not sufficiently explained why any monetary amount greater than what
Pisano could afford was required. Finally, in the absence of further findings as to
Pisano’s available assets, we were unable to discern exactly how far outside Pisano’s
means the bail was, or how the court had integrated Pisano’s assets and ability to pay into
its analysis.
On appeal, Pisano argues that the trial court has still failed to sufficiently
respond to these questions. Having reviewed the court’s findings on remand, we
continue to have concerns, particularly regarding the appearance bond.
In its bail remarks, the trial court’s primary focus and concern was the
safety of the community and the risk that Pisano posed to the public. In particular, the
court stated that the “safety of the community [was] the bigger concern” and “the reason
[why] the court initially set substantial bail.” Despite the court’s finding that public
safety was its main concern, and despite the court’s acknowledgment of the infrequency

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of defendants actually fleeing from Alaska, the court continued to require a significant
appearance bond — a $250,000 all-cash bond.
It is not clear why such a large, all-cash appearance bond is necessary,
given the court’s findings and given the other protective measures in place — in
particular, the 24-hour electronic monitoring and the 24-hour third-party custodian. We
remain concerned that the court is evaluating the need for monetary bail in a vacuum
rather than as a component of the bail conditions as a whole. To the extent that the court
has evaluated Pisano’s bail conditions as a package, it remains unclear why the court
believes that the non-monetary components of Pisano’s bail would insufficiently assure
Pisano’s appearance if paired with a monetary bail of less than $250,000.
With respect to the question of how much monetary bail Pisano could
afford, the trial court said that determining how much money Pisano in fact had access
to was “hard to do in this situation.” We understand the court’s difficulty; after the court
received evidence about the family’s finances, Pisano hired private counsel, and Pisano
apparently did not thereafter seek to update his financial information with the court. At
the same time, while the court did not make explicit findings as to the amount of bail that
Pisano could afford, the court found that the monetary bail it imposed — a $500,000
cash performance bond and a $250,000 cash appearance bond — was “substantially
more than Mr. Pisano has in his bank account, or has [in] assets.”
When addressing why a bail amount greater than Pisano could afford was
necessary, the court said that it did not believe that an “absurdly low” bail amount would
be appropriate in a case involving three homicides. But the court’s options were not
limited to the amount Pisano requested and the original bail amount set at arraignment
($500,000). The court appears to have continued to calibrate its choice of monetary bail

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by reference to this original amount of $500,000, requiring Pisano to justify any
downward deviation from that number.
We remind the court that it must impose the “least restrictive condition or
conditions that will reasonably assure the person’s appearance and protect . . . the
community.”4 Thus, one possible starting place for the court’s analysis is Pisano’s own
proposed monetary bail, which presumably represents an amount he believes he can
afford. We recognize that the “assets available to the [defendant] to meet the monetary
conditions of release” is only one factor for the court to consider in setting bail.5 But it
remains difficult to discern from the record how the trial court meaningfully integrated
this factor into its analysis. And because, under the Alaska Constitution, a court may not
set bail in an amount whose purpose is to keep a defendant in jail,6 a bail order must
sufficiently explain why a particular monetary bail is necessary in a given case, so that
this Court can conduct meaningful appellate review.
Conclusion
For these reasons, we again REMAND Pisano’s case to the trial court for
reconsideration of the monetary components of Pisano’s bail. Given this remand, we
need not address Pisano’s claim that the trial court relied on an unsupported view of the
evidence. On remand, Pisano may raise this issue, and the court may take supplemental
evidence as necessary.
4 Former AS 12.30.011(b) (2017).
5 Former AS 12.30.011(c) (2017).
6 Alaska Const. art. I, § 11.

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We do not retain jurisdiction.
Entered at the direction of the Court.
Clerk of the Appellate Courts
/s/ M. Montgomery
Meredith Montgomery
cc: Court of Appeals Judges
Judge Marston
Central Staff
Trial Court Clerk
Distribution:
Kevin T Fitzgerald
Ingaldson & Fitzgerald PC
813 W 3rd Ave
Anchorage AK 99501
Donald Soderstrom
Office of Criminal Appeals
1031 W. 4th Ave, Suite 200
Anchorage AK 99501