Anthony Michael Pisano v. State of Alaska

In the Court of Appeals of the State of Alaska
Anthony Michael Pisano,
Appellant,
v.
State of Alaska,
Appellee.
Court of Appeals No. A-13453
Order
Date of Order: 9/23/19
Trial Court Case No. 3AN-17-07343CR
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
This case is before us for a third bail appeal. The defendant, Anthony
Pisano, is charged, inter alia, with three counts of first-degree murder and one count of
third-degree assault. We have twice previously remanded Pisano’s case to the trial court
to reconsider the monetary component of Pisano’s bail.
For the reasons explained in this order, we again remand Pisano’s case to
the trial court with the directions described herein.
Procedural background
Pisano was charged in September 2017 with shooting and killing three men
at The Bullion Brothers gold and silver shop in Spenard — Steven Cook, an owner of
the shop, and Daniel McCreadie and Kenneth Hartman, tenants who lived in separate
apartments in the same building. The State alleges that Pisano shot all three men and
recklessly placed a fourth man, Michael Dupree (the co-owner of the shop), in fear of

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imminent serious physical injury. Pisano contends that Dupree shot Cook during a
dispute, and that he (Pisano) shot McCreadie and Hartman in self-defense. Pisano’s case
is awaiting trial.
Pisano has agreed to (and the trial court has ordered) several conditions 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
possess any weapons, and a representative from Alaska Pretrial Services has searched
the home in which Pisano will stay and removed all weapons. Pisano is precluded from
having contact with the families of the victims, and he is precluded from leaving the
State without the court’s permission.
Pisano has twice previously appealed the trial court’s bail order to this
Court. 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 greater than the
prosecutor’s recommendations. The court set a total monetary bail of $1,300,000 cash

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— 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 restrictive 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 trial 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
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.
In Pisano’s second bail appeal, we held that the trial court erred in
speculating about the possibility that Pisano could raise bail money through financial
contributions from crowd-funding sources.3 We also expressed continuing concerns
about the high monetary bail — and in particular, the large, all-cash appearance bond.4
1 See Court of Appeals File No. A-13089 (Order dated May 24, 2018).
2 Id. at 6-7.
3 See Court of Appeals File No. A-13289 (Order dated Jan. 16, 2019), at 3-4.
4 Id. at 5-7.

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The trial court again held additional hearings on remand. By that time,
Pisano had received notice that he would not be permitted to reside at his family’s home
on Joint Base Elmendorf-Richardson (where he had lived with his wife and two
children). Accordingly, Pisano proposed residing, on house arrest, at the home of an
Anchorage couple — a residence inspected and approved by Alaska Pretrial Services.
The husband is a pediatrician in Anchorage, and the couple has an adult son who is an
officer with the Anchorage Police Department. (Pisano knows the family because his
son plays soccer with the couple’s grandson.)
The court also received additional testimony from an employee of Alaska
Pretrial Services.
Following these hearings, the court declined to lower Pisano’s monetary
bail. As a result, bail remains set at $750,000 — comprised of a $500,000 cash
performance bond and a $250,000 cash appearance bond — in addition to all the
previously-imposed conditions of bail.
Pisano again appeals the monetary bail imposed by the court. Pisano argues
that the court failed to set bail in an amount that is the least restrictive necessary to
reasonably assure his appearance and the safety of the community. Pisano also argues
that the trial court relied on “unsupported, speculative, and even false propositions” when
setting his bail.

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Why we conclude that a remand is required and that the remand should
include conversion of the $250,000 all-cash appearance bond to a cash or
corporate bond
In our order in Pisano’s second bail appeal, we expressed concern as to why
a large, all-cash appearance bond was necessary, given the court’s finding that
community safety was its primary concern and given the other protective bail conditions
in place — namely, 24-hour electronic monitoring with house arrest and 24-hour third-
party custodianship. Following the latest remand proceedings, the court continued to
indicate that the risk to the community was its primary concern. Having reviewed the
record, we conclude that the court has failed to provide a persuasive reason why the
appearance bond cannot be converted to a cash or corporate bond.
The purpose of an appearance bond is to secure the defendant’s presence
in court when required. The purpose of a performance bond is to secure the defendant’s
compliance with other conditions of release. Appearance in court may not be a condition
of a performance bond.5
Notwithstanding the separate purposes of the two bonds, the trial court’s
justification for imposing a $250,000 all-cash appearance bond continues to significantly
overlap with its explanation for the even larger, all-cash performance bond. That is, the
court’s primary concern continues to be the risk of bail violations or new criminal
conduct if Pisano absconded from his third-party custodian or disabled his electronic
monitor. But these are categories of conduct that the performance bond is designed to
prevent.
5 Alaska R. Crim. P. 41(c)(1).

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The court found that “[a] cash appearance bond is necessary because
electronic monitoring and third-party custodians cannot guarantee the defendant’s
appearance.” But the proper question is not whether the bail conditions will “guarantee”
Pisano’s appearance in court; no condition can provide absolute assurance of a
defendant’s compliance with the court’s release order. Rather, the correct question is
what are the least restrictive conditions necessary to reasonably assure Pisano’s
appearance in court.6
Moreover, the court’s only explanation for why a cash or corporate bond
would not be sufficient is that it “would seriously reduce the amount of cash the
defendant needs to post bail.” This is undoubtedly true, but it offers no explanation for
why a cash or corporate bond is not sufficient. Posting bail through a bondsman would
still require significant collateral while providing the additional monitoring of a surety.
Pisano has no prior criminal convictions and a wide network of support.
While the court has in the past expressed concern that such an extensive network could
assist Pisano in fleeing, 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.
The court has also expressed concern in the past that Pisano does not own
property in Alaska. At the same time, his wife and two children live here — and he has
6 Former AS 12.30.011(b) (2017); see, e.g., Ludwig v. State, 812 S.W.2d 323, 325 (Tex.
Crim. App. 1991) (reducing bail in capital murder case involving two victims from
$1,000,000 to $50,000 because bail was set in an amount “far more than is sufficient to give
reasonable assurance [the defendant] will appear for trial”).

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proposed a residence for house arrest acceptable to Alaska Pretrial Services. The court
additionally noted in its current order that Pisano did not call 911 following the shooting.
But after leaving the scene, Pisano called a police sergeant and reported the shooting.
We are sympathetic to the difficulties of setting bail in a case like this —
and in particular, determining a defendant’s risk level and level of assets, and then
correlating both to the appropriate bail conditions. But we agree with the New Jersey
appellate court when it explained the importance of the constitutional right to pretrial
bail:
[A]n excessive bail requirement should not be utilized as a
means of confining the accused until trial. The amount of
bail required in a given case, where serious offenses, such as
murder, are involved, is not an easy decision. But in reaching
it, the constitutional right to bail and the presumption of
innocence cannot be overlooked.[7]
Despite repeated hearings on remand, the court has not sufficiently
explained why a $250,000 all-cash appearance bond is the least restrictive monetary
amount necessary in light of the other supervisory bail conditions in place. Accordingly,
7 State v. Steele, 61 A.3d 174, 181 (N.J. Super. App. Div. 2013) (quoting State v.
Johnson, 294 A.2d 245, 253 (N.J. 1972)); see also Eggleston v. State, 917 S.W.2d 100, 102-
03 (Tex. App. 1996) (acknowledging that the facts of this murder case warranted a
substantial bail to ensure the defendant’s appearance at trial and the safety of the community,
particularly given inconclusive nature of defendant’s financial assets, but reducing bail from
$1,000,000 to $300,000 given countervailing constitutional rights).

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we vacate the $250,000 all-cash appearance bond and direct the court to, at a minimum,
convert the bond to a cash or corporate bond.8
Pisano’s evidentiary claims
Pisano also argues that the trial court’s bail analysis rests on several
unsupported factual findings.
First, Pisano points to the trial court’s assertions that it is “common” for
people to be arrested for crimes, including homicide, while on electronic monitoring, and
that it is “common” for defendants to tamper with and remove the electronic monitor
itself. The Alaska Pretrial Services representative testified that defendants sometimes
violate their release conditions while on electronic monitoring. The representative also
estimated that defendants monitored by Alaska Pretrial Services (which monitors about
seventy defendants at a time) have removed or attempted to remove their monitors about
a dozen times over the last decade. The State further notes that violations and crimes
committed on release are a matter of public record, including several that have resulted
in appellate decisions.9
8 AS 12.30.030(b) (“If the appellate court finds that the lower court abused its
discretion, the appellate court may modify the order, remand the matter for further
proceedings, or remand the matter directing entry of the appropriate order, including release
under AS 12.30.011(a).”).
9 See, e.g., Smith v. State, 187 P.3d 511, 523 (Alaska App. 2008); Kone v. State, 2018
WL 5733339, at *1 (Alaska App. Oct. 31, 2018) (unpublished); Roberts v. State, 2018 WL
1225086, at *1 (Alaska App. Mar. 7, 2018) (unpublished); Grim v. State, 2016 WL 482543,
at *2 (Alaska App. Feb. 3, 2016) (unpublished).

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But while there are certainly instances of bail violations and criminal
conduct while on electronic monitoring, the record does not support the conclusion that
this conduct is “common.”
The court’s view that this misconduct is “common” appears to have
influenced its legal analysis. We note, for example, that the court explicitly linked its
view about the commonality of defendants committing new crimes while on electronic
monitoring to its finding that “[a] cash appearance bond is necessary because electronic
monitoring and third-party custodians cannot guarantee the defendant’s appearance.”
But as we noted earlier, the proper question is not whether the bail conditions will
“guarantee” Pisano’s appearance in court; rather, the question is what are the least
restrictive conditions necessary to reasonably assure Pisano’s appearance in court. We
direct the trial court on remand to reexamine the monetary bail amount using the proper
standard.
Pisano also points to the trial court’s statement that the three shooting
victims were “shot in the back of the head.” Pisano asserts that this statement is not
supported by the photographs, which show only one victim who was shot in the back of
the head. Pisano also asserts, without any further explanation, that the photographs
submitted to the court show that Dupree, rather than Pisano, shot Cook. We find no
merit to this latter argument. The photographs themselves do not show the identity of
the person who fired the gun.
But we acknowledge — and the State implicitly concedes — that the court
erred when it stated that all of the victims were shot in the back of the head (rather than
the side of the head or the face). The court appears to have relied on this fact in assessing

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Pisano’s dangerousness, although it is unclear how significant the error is to the court’s
underlying bail analysis. Because we are remanding for other reasons, Pisano may
address this issue on remand.
Lastly, Pisano objects to the court’s reliance on a letter submitted to the
court by Michael Dupree, the alleged assault victim. But Pisano did not object to the
court’s consideration of this letter, and indeed, referenced the letter during his bail
remarks. Accordingly, this claim is not preserved for review.
Pisano’s arguments regarding his financial assets
Finally, Pisano argues that the trial court did not adequately consider his
financial information in assessing the amount of monetary bail.10 But the record supports
the trial court’s continued concern about its inability to meaningfully assess Pisano’s
resources.
During the proceedings on remand, Pisano provided updated financial
information to the court. The information indicates that Pisano is in debt and has a
limited income (a military pension), and that his parents’ finances remain largely
unchanged since they initially provided financial information in early 2018. Both the
prosecutor and the judge acknowledged that Pisano’s current personal financial situation
10 See former AS 12.30.011(c) (2017) (setting out the factors a court must consider in
determining conditions of release, including “the assets available to the person to meet
monetary conditions of release”). Pisano’s case is governed by the bail statute in place in
2017. See Pisano v. State, Court of Appeals File No. A-13089 (Order dated May 24, 2018,
at 10).

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is similar to the situation that existed in the early stages of this case, when Pisano was
represented by public counsel.
But the judge expressed significant concerns about the fact that Pisano has
declined to disclose how he obtained the funds to hire private counsel, and as a result,
the court lacks “a complete picture of his financial resources.” Given this, the court
expressed difficulty assessing the resources available to Pisano to meet monetary bail —
and thus what amount of bail is necessary to incentivize Pisano to comply with his
release conditions.
Pisano argues that the trial court is not entitled to any information about the
source of his counsel fees. But the trial court did not suggest that it could require Pisano
or his attorney to disclosure the source of the attorney’s fees. Instead, the court only
noted that, absent that information, the court could reasonably question whether it had
a complete picture of Pisano’s available resources. We find nothing improper in that
statement.
Here, in assessing the appropriate bail conditions, the court was obliged to
evaluate all the factors set out in AS 12.30.011(c). The “assets available to the
defendant,” while important, is only one of those factors. The court reasonably
concluded that the absence of a complete record on this point made reliance on this factor
more difficult.

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Conclusion
We VACATE the $250,000 all-cash appearance bond, and we REMAND
this case for further proceedings consistent with this order. On remand, the superior
court shall reconsider the total amount of monetary bail in this case and shall also convert
the all-cash appearance bond to a cash-corporate bond.
Entered at the direction of the Court.
Clerk of the Appellate Courts
________________________________
Ryan Montgomery-Sythe, Chief Deputy
Clerk
cc: Court of Appeals Judges
Judge Marston
Central Staff
Trial Court Appeals Clerk
Distribution:
Mail:
Fitzgerald, Kevin T
Soderstrom, Donald