Sarah Romines Skupa v. State of Alaska

In the Court of Appeals of the State of Alaska
Sarah Romines Skupa,
Appellant,
v.
State of Alaska,
Appellee.
Court of Appeals No. A-13346
Order
Motion to Review Bail Decision
Date of Notice: 4/29/2019
Trial Court Case No. 3AN-13-06898CR
Before: Chief Judge Allard, Harbison, Judge, and Smith,
Senior Superior Court Judge.*
This is an appeal of a superior court’s order denying the defendant bail
pending a sentence appeal. For the reasons explained here, we vacate the court’s order
and remand this issue to the superior court for reconsideration of the defendant’s request
in light of the guidance provided here.
Relevant facts and prior proceedings
Sarah Romines Skupa pleaded guilty to one count of first-degree theft. She
was sentenced to two years’ incarceration, with one year suspended, and ordered to pay
$415,554.61 plus interest in restitution. Skupa has filed an appeal raising two claims:
that her sentence is excessive and that restitution should not have been determined in her
criminal case.1 The appeal is currently pending before this Court. The deadline for the
* Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska
Constitution and Administrative Rule 23(a).
1 See Statement of Points on Appeal.

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opening brief has been stayed, pending the preparation of supplemental transcripts.
Skupa has not moved for expedited consideration of the appeal.
Prior to her remand date, Skupa asked the superior court for bail pending
appeal, requesting that she remain out of custody pending the resolution of the appeal.
During the course of her case in the superior court, Skupa remained out of custody on
bail release, on her own recognizance, for six years without incident. In her application
for bail pending appeal, Skupa proposed bail conditions that were more restrictive than
her prior pretrial bail conditions.2 Specifically, she proposed that she be released on
private electronic monitoring, and that she be required to pay $300 per month toward
restitution. The State opposed Skupa’s request for bail pending appeal.
The superior court denied Skupa’s request for bail pending appeal in a
written order, reasoning that her request for court-ordered private electronic monitoring
was an attempt to circumvent the Department of Corrections’ requirement that a
defendant must serve 60 days in jail before finishing the remainder of the sentence on
electronic monitoring. In its order, the superior court made no findings with regard to
whether Skupa’s proposed conditions of release would reasonably assure her appearance
and prevent her from posing a danger to other persons and the community.
Skupa now appeals this bail ruling.
2 Skupa apparently made a number of bail proposals, not all of which were
documented to this Court.

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Alaska law on bail pending a sentence appeal
Under AS 12.30.040(a), a trial court may grant bail pending appeal “if the
person establishes, by clear and convincing evidence, that the person can be released
under conditions that will reasonably assure the appearance of the person and the safety
of the victim, other persons, and the community.”3 Although the statute refers to
“appeal” in general terms, Alaska courts have previously interpreted the requirements
of AS 12.30.040 to apply only to requests for bail pending merit appeals.4
As we have explained, in this case Skupa has filed a merit appeal as well
as a sentence appeal, but she does not challenge her conviction in her merit appeal.
Because Skupa has not appealed her conviction, but she does challenge her sentence as
excessive, we will analyze her bail claim under the law that applies to bail pending
sentence appeals.
In Dobrova v. State, this Court held that trial courts have a common-law
authority to grant bail pending a sentence appeal.5 The Alaska Supreme Court affirmed
this holding.6
3 See also Alaska R. App. P. 206(b).
4 See Dobrova v. State, 674 P.2d 834, 835 (Alaska App. 1984) aff’d, 694 P.2d
157 (Alaska 1985); but see State v. Dobrova, 694 P.2d 157, 159-60 (Alaska 1985) (Compton,
J., concurring) (concluding that AS 12.30.040 applies to all requests for bail pending appeal,
regardless of whether the appeal is a merit appeal or a sentence appeal).
5 Dobrova, 674 P.2d at 835.
6 Dobrova, 694 P.2d at 158-59.

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Later decisions by this Court indicated that the requirements and restrictions
that apply to a request for bail pending a merit appeal under AS 12.30.040(a) also apply
to a request for bail pending a sentence appeal.7 But in our decision in Dobrova, this
Court also indicated that the trial court had the discretion to consider factors outside the
traditional factors of flight risk and safety of the community when deciding a request for
bail pending a sentence appeal.8 We reasoned that:
Since a sentence appeal does not fall within AS 12.30.040, it
necessarily follows that the trial court has discretion to deny
bail for a sentence appeal without finding “that no one or
more conditions of release will reasonably assure the
appearance of the person as required or prevent the person
from posing a danger to other persons and the community.”
AS 12.30.040(a). Nevertheless, the trial court, in exercising
its discretion, must make a reasoned decision.9
We did not directly explain in Dobrova what constitutes “a reasoned
decision” in this context. But in Shepersky v. State, we again addressed the legal
standard for bail pending a sentence appeal, and provided guidance on how this
7 See, e.g., Hosier v. State, 957 P.2d 1360, 1363-64 (Alaska App. 1998)
(explaining that a trial court “abuses its discretion when it exercises its common-law power
of bail release [pending sentence appeal] in a manner that creates an equal protection
problem by treating sentence-appeal defendants more favorably than merit-appeal
defendants”).
8 Dobrova, 674 P.2d at 835.
9 Id.

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common-law authority should be exercised and what factors a trial court should consider
when deciding such a request.10
In Shepersky v. State, we reasoned that a trial court’s decision should be
related to the underlying purpose of bail pending a sentence appeal — to protect a
defendant from serving imprisonment that might later be struck by the appellate court.11
We held that even if a defendant meets the criteria for bail release set forth in AS
12.30.040, a trial court may deny a request for bail pending a sentence appeal if the court
determines that bail release is unnecessary because the sentence appeal will be resolved
before the defendant has served the minimum sentence that the appellate court would
likely affirm.12 Likewise, the trial court may consider whether the defendant has
requested expedited consideration of their sentence appeal in assessing the need for bail
pending resolution of the sentence appeal.13
We remand this case for reconsideration of Skupa’s request for bail
pending her sentence appeal
In its order denying Skupa’s request for bail, the superior court found that
Skupa’s request is nothing more than an attempt to avoid the requirement that she spend
10 Shepersky v. State, 401 P.3d 990, 992-93 (Alaska App. 2017).
11 Id. at 993.
12 Id.
13 Id.

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the first 60 days of incarceration before being released on electronic monitoring.14 The
superior court also explained that bail should be denied because Skupa had been charged
in 2013, and six years later her case has yet to conclude.15 It expressed concern that
allowing bail for “white collar criminals” like Skupa would send an improper message,
given that shoplifters are regularly required to serve their sentence.16 Citing Dobrova,
the superior court noted that “the trial court has discretion to deny bail for a sentence
appeal without finding ‘that no one or more conditions of release will reasonably assure
the appearance of the person as required or prevent the person from posing a danger to
other persons and the community.’”17 The superior court’s written order did not
acknowledge our decision in Shepersky, nor did it apply the legal standard we announced
in that decision.
We conclude that remand for reconsideration of the request is required. On
remand, the court should reconsider this issue under the correct legal standard and should
provide appropriate findings in support of its decision.
14 Order Denying Defendant’s Third Revised Motion for Bail Pending Appeals
and Defendant’s Third Revised Motion for Stay of Jail Sentence (Exhibit 1).
15 Id. at p. 2.
16 Id. at pp. 2-3.
17 Id. at p. 2 (quoting Dobrova v. State, 674 P.2d 834, 835 (Alaska App. 1984)).

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The superior court’s order also suggests that the court denied Skupa’s
request for bail based in part on the victim’s need for finality18 and the need for
community condemnation of white collar criminals.19 As we stated in Shepersky:
Under the Alaska Constitution, a crime victim has the right to
be present and to be heard at any bail hearing where the
defendant’s release from custody is being considered. The
court should ensure that these rights are honored and that the
victim’s concerns are appropriately considered, particularly
those concerns related to the victim’s safety. But the victim’s
desire for finality is an insufficient reason to deny a defendant
bail release. Likewise, community condemnation, although
an appropriate consideration in crafting a sentence, is an
inappropriate consideration in the context of a request for bail
release pending resolution of an excessive sentence claim.20
On remand, the superior court should consider (1) whether Skupa has
established by clear and convincing evidence that the proposed bail conditions will
reasonably assure Skupa’s appearance and reasonably assure the safety of the victim and
the community; and (2) the extent (if any) that Skupa’s legal rights will be prejudiced
should she be denied bail pending appeal but ultimately prevail on her underlying claim
that her sentence is excessive. As part of these considerations, the court may consider
both the likelihood that Skupa’s sentence appeal will be successful and Skupa’s diligence
18 Id. at p. 2.
19 Id. at p. 2-3.
20 Shepersky v. State, 401 P.3d 990, 993-94 (Alaska App. 2017).

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in seeking to expedite the resolution of her direct appeal. The court may also consider
whether electronic monitoring is necessary under these circumstances.
Skupa’s claim that we should disqualify the superior court judge
Skupa argues that this Court should order that a new superior court judge
be assigned to her case. She devotes only a single sentence to this argument, claiming
that the judge violated “his duty to render a reasoned . . . decision that comported with
the law and did not rest on retribution.” But because Skupa did not raise this issue in the
superior court, we do not have an adequate record to consider this issue. If Skupa
believes that the assigned superior court judge should be disqualified, she may file a
motion under the procedures set out in AS 22.20.020.21
Conclusion
We VACATE the superior court’s bail order and REMAND this case to the
superior court for reconsideration of the defendant’s request for bail in accord with the
guidance provided here. We do not retain jurisdiction of this bail appeal.
21 See Osceola v. State, 2013 WL 2489585 at *3 (Alaska App. June 5, 2013)
(unpublished) (finding that where an appearance of bias was alleged to be shown during trial
court’s sentencing remarks and pre-sentencing order, the case would be remanded for
defendant to file a motion for disqualification).

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Clerk of the Appellate Courts
________________________________
Kyle Roberts, Deputy Clerk
cc: Erin B. Marston
Anchorage Trial Court Appeals Clerk
Court of Appeals Judges
Central Staff
Distribution:
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Malin, Paul E.
Chleborad, Terisia K.
Email:
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Chleborad, Terisia K.