00 HOUSE BILL NO. 201 01 "An Act relating to prisoner litigation, post-conviction relief, sentence appeals, 02 amending Alaska Administrative Rule 10, Alaska Rules of Appellate Procedure 03 204, 208, 209, 215, 521, 603, and 604, and Alaska Rules of Criminal Procedure 04 11, 33, 35, and 35.1; and providing for an effective date." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. AS 09 is amended by adding a new chapter to read: 07 CHAPTER 19. PRISONER LITIGATION AGAINST THE STATE. 08  Sec. 09.19.010. LIMITATION ON EXEMPTION FROM FILING FEES. (a) 09 A prisoner may not commence an action or appeal from a civil action or from the final 10 decision of an administrative agency that involved the state, involved a state employee, 11 or involved a former state employee regarding conduct that occurred during that former 12 employee's state employment, unless the prisoner has paid full filing fees to the court 13 or is a claimant under AS 23.20, except that the court may exempt a prisoner from 14 paying part of those fees if the court finds exceptional circumstances as described in 01 this section. 02  (b) To apply for a filing fee exemption, a prisoner shall submit to the court 03  (1) an affidavit that sets out 04  (A) the prisoner's complete financial situation, including the 05 prisoner's income, assets, and court-ordered payments; 06  (B) the circumstances that prevent the prisoner from paying full 07 filing fees; and 08  (C) the nature of the action or appeal and specific facts that 09 would, if proven, state a claim on which relief can be granted or entitle the 10 prisoner to reversal on appeal; 11  (2) a true and correct copy of the prisoner's account statement from the 12 correctional facility in which the prisoner is being or has been held for the six-month 13 period preceding the submission of the application; and 14  (3) other documentation or financial information as the court may 15 require. 16  (c) Based on the submission under (b) of this section, the court may grant an 17 exemption from part of the applicable filing fees if the court finds that exceptional 18 circumstances prevent the prisoner from paying full filing fees. Imprisonment and 19 indigency do not constitute exceptional circumstances if the prisoner has available 20 income or resources that can be applied to the filing fee. 21  (d) If the court orders an exemption under (c) of this section, the court shall 22 determine the amount of the exemption and set a filing fee to be paid by the prisoner. 23 In setting the fee, the court, at a minimum, shall require the prisoner to pay filing fees 24 equal to 20 percent of the larger of the average monthly deposits made to the 25 prisoner's account described in (b)(2) of this section, or the average balance in that 26 account, not to exceed the amount of the full filing fee required under applicable court 27 rules. The court shall issue a written order stating its reasons for its determinations 28 under this section. 29  (e) The court shall mail or otherwise serve its order under (d) of this section 30 on the prisoner. Along with its order, the court shall give written notice that the case 31 or appeal will be dismissed if payment of a filing fee is not made within 30 days after 01 the date of distribution of the order, unless the time for payment is extended by the 02 court. If timely payment is not made, the court shall dismiss the case or appeal. If 03 payment is made, the prisoner's filing and supporting documents shall be accepted for 04 filing with the court. 05  Sec. 09.19.015. SERVICE OF PROCESS IN CERTAIN PRISONER CASES 06 OR APPEALS. If a prisoner has been exempted from paying full filing fees under 07 AS 09.19.010, a prisoner may not commence service of process of the summons or 08 notice of appeal without court approval under AS 09.19.017 or 09.19.019. 09  Sec. 09.19.017. REVIEW AND DISMISSAL OF CERTAIN PRISONER 10 ACTIONS. (a) If a prisoner has filed a civil action or an administrative appeal and 11 paid less than full filing fees under an exemption granted under AS 09.19.010, the 12 court shall review the prisoner's filings to determine whether the standards of this 13 section have been met. 14  (b) In order for the court to allow the civil action or administrative appeal to 15 proceed against the state, a state employee, or a former state employee, the court must 16 find that, based on the information available to the judge, 17  (1) material statements made by the prisoner are not untrue; 18  (2) the action or administrative appeal is not frivolous or malicious; and 19  (3) the pleadings filed set out specific facts that would, if proven, 20  (A) state a claim upon which relief may be granted; or 21  (B) entitle the prisoner to reversal on appeal. 22  (c) If the court determines that the requirements of (b)(1) - (3) of this section 23 have not been met, the court shall give notice to the prisoner of its intent to dismiss 24 the case or administrative appeal and allow the prisoner an opportunity to reply in 25 writing. If the reply does not demonstrate that the requirements of (b)(1) - (3) of this 26 section have been met, or if no reply is filed, the court shall issue an order dismissing 27 the case or administrative appeal. If the court determines that the requirements of 28 (b)(1) - (3) of this section have been met, the court shall direct service of process. 29  Sec. 09.19.019. REVIEW AND DISMISSAL OF CERTAIN PRISONER 30 APPEALS. (a) Upon the filing of an appeal for which the prisoner has been 31 exempted from paying full filing fees under AS 09.19.010, the appellate court shall 01 notify the lower court of the filing. 02  (b) Upon receiving notice under (a) of this section, the lower court shall 03 review its records and advise the appellate court in writing as to whether the appeal 04 appears 05  (1) to present a colorable issue of fact or law; 06  (2) not to be frivolous; and 07  (3) not to be malicious. 08  (c) If the appellate court is advised by the lower court that the standards set 09 out in (b)(1) - (3) of this section have not been met, the court shall give notice to the 10 prisoner of its intent to dismiss the appeal and allow the prisoner an opportunity to 11 reply in writing. If the reply does not demonstrate that the requirements of (b)(1) - (3) 12 of this section have been met, or if no reply is filed, the court shall issue an order 13 dismissing the appeal. If the court determines that the standards of (b)(1) - (3) of this 14 section have been met, the court shall direct service of process. 15  Sec. 09.19.020. STAY IN PRISONER DISCIPLINARY APPEALS. A 16 superior court that reviews a disciplinary decision of the Department of Corrections 17 as an administrative appeal may not enter an order staying disciplinary sanctions unless 18 the pleadings filed by the prisoner establish by clear and convincing evidence that the 19 prisoner has alleged a violation of a fundamental constitutional right and is likely to 20 succeed on the merits in the appeal, that the prisoner faces irreparable harm if a stay 21 is not granted, that the Department of Corrections can be adequately protected if a stay 22 is granted, and that a stay will not adversely affect the public interest in effective penal 23 administration. 24  Sec. 09.19.030. INJUNCTIONS OR ORDERS IMPOSING OBLIGATIONS 25 IN PRISONER CASES. In an action or an appeal brought by a prisoner, a court may 26 not enter an injunction or issue an order or decision that would impose an obligation 27 on the state or its employees that would exceed the obligations imposed by the United 28 States Constitution, the Constitution of the State of Alaska, and applicable federal and 29 state statutes and regulations, unless the obligation is agreed to by the state. 30  Sec. 09.19.040. DISCOVERY IN PRISONER CASES. The automatic 31 disclosure provisions in the Alaska Rules of Civil Procedure do not apply to a civil 01 action brought by a prisoner against the state, against a state employee, or against a 02 former state employee regarding conduct that occurred during that former employee's 03 state employment. 04  Sec. 09.19.900. DEFINITION. In this chapter, "prisoner" has the meaning 05 given in AS 33.30.901. 06 * Sec. 2. AS 09.38.030(a) is amended to read: 07  (a) Except as provided in (b), [AND] (c), and (f) of this section and 08 AS 09.38.050, an individual debtor is entitled to an exemption of the individual 09 debtor's weekly net earnings not to exceed $350. The weekly net earnings of an 10 individual are determined by subtracting from the weekly gross earnings all sums 11 required by law or court order to be withheld. The weekly net earnings of an 12 individual paid on a monthly basis are determined by subtracting from the monthly 13 gross earnings of the individual all sums required by law or court order to be withheld 14 and dividing the remainder by 4.3. The weekly net earnings of an individual paid on 15 a semi-monthly basis are determined by subtracting from the semi-monthly gross 16 earnings all sums required by law or court order to be withheld and dividing the 17 remainder by 2.17. 18 * Sec. 3. AS 09.38.030(b) is amended to read: 19  (b) An individual who does not receive earnings either weekly, semi-monthly, 20 or monthly is entitled to a maximum exemption for the aggregate value of cash and 21 other liquid assets available in any month of $1,400, except as provided in (f) of this 22 section and in AS 09.38.050. The term "liquid assets" includes deposits, securities, 23 notes, drafts, accrued vacation pay, refunds, prepayments, and receivables, but does not 24 include permanent fund dividends before or after receipt by the individual. 25 * Sec. 4. AS 09.38.030 is amended by adding a new subsection to read: 26  (f) The state may execute on a judgment awarded to the state, to a state 27 employee, or to a former state employee against a party to an action who is 28 incarcerated for a criminal conviction by sending a notice of levy to the correctional 29 facility in which the person is incarcerated. All money in an incarcerated person's 30 account at a correctional facility is available for disbursement under a notice of levy 31 by the state under this subsection, in the following order of priority: 01  (1) to support the dependents of the incarcerated person and to provide 02 child support payments as required by AS 25.27; 03  (2) to satisfy restitution or fines ordered by a sentencing court to be 04 paid by the incarcerated person; 05  (3) to pay a civil judgment entered against the incarcerated person as 06 a result of that person's criminal conduct; 07  (4) to reimburse the state for an award made for violent crimes 08 compensation under AS 18.67 as a result of the incarcerated person's criminal conduct; 09  (5) to satisfy other judgments entered in favor of the state, in favor of 10 a state employee, or in favor of a former state employee regarding conduct that 11 occurred during that former employee's state employment. 12 * Sec. 5. AS 09.38.500 is amended by adding a new paragraph to read: 13  (16) "correctional facility" has the meaning given in AS 33.30.901. 14 * Sec. 6. AS 12.30.040 is amended by adding a new subsection to read: 15  (c) A person who has been convicted of an offense and who has filed an 16 application for post-conviction relief may not be released on bail until the trial court 17 or an appellate court enters an order vacating all convictions against the person. A 18 person who has prevailed on an application for post-conviction relief may seek release 19 before trial in accordance with the provisions of AS 12.30.020. 20 * Sec. 7. AS 12.55.120(a) is amended to read: 21  (a) A sentence of imprisonment lawfully imposed by the superior court for a 22 term or for aggregate terms exceeding two years of unsuspended incarceration [OF 23 ONE YEAR OR MORE] may be appealed to the court of appeals by the defendant on 24 the ground that the sentence is excessive, unless the sentence was imposed in 25 accordance with a plea agreement under the applicable Alaska Rules of Criminal 26 Procedure and that agreement provided for imposition of a specific sentence or 27 a sentence equal to or less than a specified maximum sentence. If the superior 28 court imposed a sentence in accordance with a plea agreement that provided for 29 a minimum sentence, the defendant may appeal only that portion of the sentence 30 that exceeds the minimum sentence provided for in the plea agreement and that 31 exceeds two years of unsuspended incarceration. By appealing a sentence under this 01 section, the defendant waives the right to plead that by a revision of the sentence 02 resulting from the appeal the defendant has been twice placed in jeopardy for the same 03 offense. 04 * Sec. 8. AS 12.55.120(d) is amended to read: 05  (d) A sentence of imprisonment lawfully imposed by the district court for a 06 term or for aggregate terms exceeding 120 [90] days of unsuspended incarceration 07 may be appealed to the superior court by the defendant on the ground that the sentence 08 is excessive, unless the sentence was imposed in accordance with a plea agreement 09 under the applicable Alaska Rules of Criminal Procedure and that agreement 10 provided for imposition of a specific sentence or a sentence equal to or less than 11 a specified maximum sentence. If the district court imposed a sentence in 12 accordance with a plea agreement that provided for a minimum sentence, the 13 defendant may appeal only that portion of the sentence that exceeds the minimum 14 sentence provided for in the plea agreement and that exceeds 120 days of 15 unsuspended incarceration. By appealing a sentence under this section, the 16 defendant waives the right to plead that by a revision of the sentence resulting from 17 the appeal the defendant has been twice placed in jeopardy for the same offense. A 18 sentence of imprisonment lawfully imposed by the district court may be appealed to 19 the superior court by the state on the ground that the sentence is too lenient; however, 20 when a sentence is appealed by the state, the court may not increase the sentence but 21 may express its approval or disapproval of the sentence and its reasons in a written 22 opinion. 23 * Sec. 9. AS 12 is amended by adding a new chapter to read: 24 CHAPTER 72. POST-CONVICTION RELIEF 25 PROCEDURES FOR PERSONS CONVICTED OF CRIMINAL OFFENSES. 26  Sec. 12.72.010. SCOPE OF POST-CONVICTION RELIEF. A person who has 27 been convicted of, or sentenced for, a crime may institute a proceeding for post-conviction relief if the person claims 28  (1) that the conviction or the sentence was in violation of the 29 Constitution of the United States or the constitution or laws of this state; 30  (2) that the court was without jurisdiction to impose sentence; 31  (3) that a prior conviction has been set aside and the prior conviction 01 was used as a statutorily-required enhancement of the sentence imposed; 02  (4) that there exists evidence of material facts, not previously presented 03 and heard by the court, that requires vacation of the conviction or sentence in the 04 interest of justice; 05  (5) that the person's sentence has expired, or the person's probation, 06 parole, or conditional release has been unlawfully revoked, or the person is otherwise 07 unlawfully held in custody or other restraint; 08  (6) that the conviction or sentence is otherwise subject to collateral 09 attack upon any ground or alleged error previously available under the common law, 10 statutory law, or other writ, motion, petition, proceeding, or remedy; 11  (7) that 12  (A) there has been a significant change in law, whether 13 substantive or procedural, applied in the process leading to the person's 14 conviction or sentence; 15  (B) the change in the law was not reasonably foreseeable by a 16 judge or a competent attorney; 17  (C) it is appropriate to retroactively apply the change in law 18 because the new change in law requires observance of procedures without 19 which the likelihood of an accurate conviction is seriously diminished; and 20  (D) the failure to retroactively apply the change in law would 21 result in a fundamental miscarriage of justice, which is established by 22 demonstrating that, had the changed law been in effect at the time of the 23 applicant's trial, a reasonable trier of fact would have a reasonable doubt as to 24 the guilt of the applicant; 25  (8) that, after the imposition of sentence, the applicant seeks to 26 withdraw a plea of guilty or nolo contendere in order to correct manifest injustice 27 under the Alaska Rules of Criminal Procedure; or 28  (9) that the applicant was not afforded effective assistance of counsel 29 at trial or on direct appeal. 30  Sec. 12.72.020. LIMITATIONS ON APPLICATIONS FOR POST-CONVICTION RELIEF. (a) A claim may not 31 be brought under AS 12.72.010 or the 01 Alaska Rules of Criminal Procedure if 02  (1) the claim is based on the admission or exclusion of evidence at trial 03 or on the ground that the sentence is excessive; 04  (2) the claim was, or could have been but was not, raised in a direct 05 appeal from the proceeding that resulted in the conviction; 06  (3) the later of the following dates has passed, except that if the 07 applicant claims that the sentence was illegal there is no time limit on the claim: 08  (A) two years after the entry of the judgment of conviction; or 09  (B) one year after a decision is final under the Alaska Rules of 10 Appellate Procedure, if the conviction was appealed; 11  (4) one year or more has elapsed from the final administrative decision 12 of the Parole Board or the Department of Corrections that is being collaterally 13 attacked; 14  (5) the claim was decided on its merits or on procedural grounds in any 15 previous proceeding; or 16  (6) a previous application for post-conviction relief has been filed under 17 this chapter or under the Alaska Rules of Criminal Procedure. 18  (b) Notwithstanding (a)(3) and (a)(4) of this section, a court may hear a claim 19 if the applicant establishes due diligence in presenting the claim and sets out facts 20 supported by admissible evidence establishing that 21  (1) the applicant suffered from a physical disability or from a mental 22 disease or defect that precluded the timely assertion of the claim; or 23  (2) the applicant was physically prevented by an agent of the state from 24 filing a timely claim. 25  (c) Notwithstanding (a)(3) of this section, a court may hear a claim based on 26 newly discovered evidence if the applicant establishes due diligence in presenting the 27 claim and sets forth facts supported by evidence that is admissible and 28  (1) was not known or reasonably discoverable through due diligence 29 within two years after entry of the judgment of conviction; 30  (2) is not cumulative to the evidence presented at trial; 31  (3) is not impeachment evidence; and 01  (4) establishes by clear and convincing evidence that the applicant is 02 innocent. 03  Sec. 12.72.030. FILING OF APPLICATION FOR POST-CONVICTION 04 RELIEF. An application for post-conviction relief shall be filed with the clerk at the 05 court location where the underlying criminal case was filed. 06  Sec. 12.72.040. BURDEN OF PROOF IN POST-CONVICTION RELIEF 07 PROCEEDINGS. A person applying for post-conviction relief must prove all factual 08 assertions by clear and convincing evidence. 09 * Sec. 10. AS 18.85.100 is amended by adding a new subsection to read: 10  (c) An indigent person is entitled to representation under (a) and (b) of this 11 section for purposes of bringing a timely application for post-conviction relief under 12 AS 12.72. An indigent person is not entitled to representation under (a) and (b) of this 13 section for purposes of bringing 14  (1) an untimely or successive application for post-conviction relief 15 under AS 12.72; 16  (2) an appeal from a district or superior court ruling on an application 17 for post-conviction relief; 18  (3) a petition for hearing from an appellate court ruling on an 19 application for post-conviction relief; or 20  (4) an action or claim for habeas corpus in federal court attacking a 21 state conviction. 22 * Sec. 11. AS 22.07.020(b) is amended to read: 23  (b)  Except as limited in AS 12.55.120, the [THE] court of appeals has 24 jurisdiction to hear appeals of unsuspended sentences of imprisonment exceeding two 25 years imposed by the superior court on the grounds that the sentence is excessive, or 26 a sentence of any length on the grounds that it is too lenient. The court of appeals 27 [AND], in the exercise of this jurisdiction, may modify the sentence as provided by 28 law and the state constitution. 29 * Sec. 12. AS 22.10.020(f) is amended to read: 30  (f) An appeal to the superior court may be taken on the ground that an 31 unsuspended [A] sentence of imprisonment exceeding 120 [OF 90] days [OR MORE] 01 was excessive and the superior court in the exercise of this jurisdiction has the power 02 to reduce the sentence. The state may appeal a sentence on the ground that it is too 03 lenient. When a sentence is appealed on the ground that it is too lenient, the court 04 may not increase the sentence but may express its approval or disapproval of the 05 sentence and its reasons in a written opinion. 06 * Sec. 13. AS 33.30 is amended by adding a new section to read: 07  Sec. 33.30.295. REVIEW OF PRISONER DISCIPLINARY DECISIONS. (a) 08 A prisoner may obtain judicial review by the superior court of a final disciplinary 09 decision by the Department of Corrections only if the prisoner alleges specific facts 10 establishing a violation of the prisoner's fundamental constitutional rights that 11 prejudiced the prisoner's right to a fair adjudication. An appeal shall be commenced 12 by the prisoner filing a notice of appeal and other required documents in accordance 13 with AS 09.19 or the applicable rules of court governing administrative appeals. If the 14 appeal is not dismissed under AS 09.19.010, a record of the proceedings shall be 15 prepared by the department, consisting of the original papers and exhibits submitted 16 in the disciplinary process and a cassette tape of the disciplinary hearing. The record 17 shall be prepared and transmitted in accordance with the applicable rules of court 18 governing administrative appeals. 19  (b) A disciplinary decision may not be reversed 20  (1) unless the court finds that the prisoner's fundamental constitutional 21 rights were violated in the course of the disciplinary process, and that the violation 22 prejudiced the prisoner's right to a fair adjudication; 23  (2) because the department failed to follow hearing requirements set out 24 in state statutes and regulations, unless the prisoner was prejudiced by the denial of a 25 right guaranteed by the Alaska or United States Constitution; if such prejudice is 26 found, the court shall enter judgment as provided in (c) of this section and remand the 27 case to the Department of Corrections; or 28  (3) because of insufficient evidence if the record described in (a) of this 29 section shows that the disciplinary decision was based on some evidence that could 30 support the decision reached. 31  (c) The court shall enter judgment setting aside or affirming the disciplinary 01 decision without limiting or controlling the discretion vested in the Department of 02 Corrections to allocate resources within the department and to control security and 03 administration within the prison system. 04 * Sec. 14. Rule 10 of the Alaska Administrative Rules of Court is amended by adding a 05 new subsection to read: 06  (e) The provisions of this rule do not apply to an exemption from payment of 07 filing fees in civil actions filed by prisoners against the state, a state employee, or a 08 former state employee, that is governed by the provisions of AS 09.19. 09 * Sec. 15. Rule 204(b) of the Alaska Rules of Appellate Procedure is amended to read: 10  (b) APPEAL -- HOW TAKEN. A party may appeal from a final order or 11 judgment by filing a notice of appeal with the clerk of the appellate courts. The notice 12 of appeal must identify the party taking the appeal, the final order or judgment 13 appealed from, and the court to which the appeal is taken. The notice of appeal must 14 be accompanied by 15  (1) a completed docketing statement in the form prescribed by these 16 rules; 17  (2) a copy of the final order or judgment from which the appeal is 18 taken; 19  (3) a statement of points on appeal as required by Rule 204(e); 20  (4) unless the party is represented by court-appointed counsel, [OR] the 21 party is the state or an agency thereof, or the party is a prisoner whom the court 22 finds is eligible to pay less than full fees under AS 09.19.010, 23  (A) the filing fee required by Administrative Rule 9(a); 24  (B) a motion for waiver of filing fee pursuant to Administrative 25 Rule 9(f)(1); or 26  (C) a motion to appeal at public expense pursuant to Rule 209; 27  (5) unless the party is represented by court-appointed counsel, the party 28 is the state, municipality, or officer or agency thereof, or the party is an employee 29 appealing denial of compensation by the Alaska Workers' Compensation Board or 30 denial of benefits under AS 23.20 (Employment Security Act), 31  (A) the cost bond or deposit required by Rule 204(c)(1); 01  (B) a copy of a superior court order approving the party's 02 supersedeas bond or other security in lieu of bond or a copy of the party's 03 motion to the superior court for approval of a supersedeas bond or other 04 security; 05  (C) a motion for waiver of cost bond; or 06  (D) a motion to appeal at public expense pursuant to Rule 209; 07  (6) a designation of transcript if the party intends to have portions of 08 the electronic record transcribed pursuant to Rule 210(b); and 09  (7) proof of service of the notice of appeal and all required 10 accompanying documents, except the filing fee, on 11  (A) the clerk of the trial court which entered the judgment or 12 order being appealed; and 13  (B) all other parties to the trial court action. 14 A party may move for an extension of time to file the docketing statement, the 15 statement of points on appeal, and the designation of transcript. The clerk of the 16 appellate courts shall refuse to accept for filing any notice of appeal not conforming 17 to this paragraph and accompanied by the items specified in (1) - (7) or a motion to 18 extend the time for filing item (1), (3), or (6). 19 * Sec. 16. Rule 208 of the Alaska Rules of Appellate Procedure is repealed and reenacted 20 to read: 21  RULE 208. CUSTODY OF PRISONERS IN POST-CONVICTION RELIEF 22 PROCEEDINGS. (a) RELEASE OF APPLICANT PENDING REVIEW OF ORDER 23 DENYING RELEASE. The court having jurisdiction over the appeal of a denial of 24 an application for post-conviction relief may not grant bail or release the applicant 25 pending appeal. If the appellate court determines that post-conviction relief should be 26 granted, the case shall be remanded to the trial court for a bail hearing. 27  (b) RELEASE OF APPLICANT PENDING REVIEW OF DECISION 28 ORDERING A NEW TRIAL. If an appeal of an order granting an applicant a new 29 trial is pending, Appellate Rule 206(b) shall govern an appeal from an order that 30 denies bail pending appeal or imposes conditions of release pending appeal. 31 * Sec. 17. Rule 209(a) of the Alaska Rules of Appellate Procedure is amended by adding 01 a new paragraph to read: 02  (7) The provisions of this subsection do not apply to the filing fees in 03 a prisoner's appeal against the state, a state employee, or a former state employee, that 04 is governed by the provisions of AS 09.19. 05 * Sec. 18. Rule 215(a) of the Alaska Rules of Appellate Procedure is repealed and 06 reenacted to read: 07  (a) NOTIFICATION OF RIGHT TO APPEAL SENTENCE. At the time of 08 imposition of sentence, the judge shall inform the defendant 09  (1) that the defendant has no right to appeal a sentence as excessive if 10  (A) the sentence does not exceed two years of unsuspended 11 incarceration for a felony or 120 days of unsuspended incarceration for a 12 misdemeanor; or 13  (B) the sentence was imposed in accordance with a plea 14 agreement under Criminal Rule 11 that provided for imposition of a specific 15 sentence or a sentence equal to or less than a specified maximum; 16  (2) that the defendant may appeal a sentence imposed in accordance 17 with a plea agreement under Criminal Rule 11 that provided for a minimum sentence, 18 but may appeal as excessive only the part of the sentence that exceeds the greater of 19  (A) the minimum sentence provided for in the plea agreement; 20 or 21  (B) two years of unsuspended incarceration in a felony case or 22 120 days of unsuspended incarceration in a misdemeanor case; 23  (3) that, except as provided in (a)(1)(A) of this rule, the defendant may 24 appeal a sentence on the ground that it is excessive, if there was no plea agreement 25 under Criminal Rule 11; 26  (4) that upon an appeal the appellate court may reduce or increase the 27 sentence, and that by appealing the sentence under this rule, the defendant waives the 28 right to plead that by a revision of the sentence resulting from the appeal the defendant 29 has been twice placed in jeopardy for the same offense; 30  (5) that if the defendant wants counsel and is unable to pay for the 31 services of an attorney, the court will appoint an attorney to represent the defendant 01 on the appeal. 02 * Sec. 19. Rule 521 of the Alaska Rules of Appellate Procedure is amended to read: 03  RULE 521. CONSTRUCTION. These rules are designed to facilitate business 04 and advance justice. They may be relaxed or dispensed with by the appellate courts 05 where a strict adherence to them will work surprise or injustice.  In a matter 06 involving the validity of a criminal conviction or sentence, this rule does not 07 authorize an appellate court or the superior court, when acting as an intermediate 08 appellate court, to allow, (1) an appeal to be filed more than 60 days late, or (2) 09 a petition for review or petition for hearing to be filed more than 30 days late. 10 * Sec. 20. Rule 603(a) of the Alaska Rules of Appellate Procedure is amended by adding 11 a new paragraph to read: 12  (6) STAY IN PRISONER DISCIPLINARY APPEALS. The court may not 13 stay imposition of sanctions arising from a disciplinary decision of the Department of 14 Corrections unless the court finds that the prisoner has alleged a violation of a 15 fundamental constitutional right and is likely to succeed on the merits of the appeal, 16 that the prisoner faces irreparable harm if a stay is not granted, that the Department 17 of Corrections can be adequately protected if a stay is granted, and that a stay will not 18 adversely affect the public interest in effective penal administration. In evaluating the 19 stay motion, the court may consider documents and affidavits offered by either party, 20 and shall consider the stay motion without waiting for the record to be certified. 21 * Sec. 21. Rule 604(b)(1)(A) of the Alaska Rules of Appellate Procedure is amended to 22 read: 23  (A) The record on appeal consists of the original papers and 24 exhibits filed with the administrative agency, and a typed transcript of the 25 record of proceedings before the agency. In an appeal from the revocation of 26 a driver's license by the Division of Motor Vehicles or from a prisoner 27 disciplinary decision of the Department of Corrections, the record of 28 proceedings will include cassettes rather than transcripts unless otherwise 29 ordered by the court. 30 * Sec. 22. Rule 11(c)(3) of the Alaska Rules of Criminal Procedure is amended by adding 31 new subparagraphs to read: 01  (iii) that the defendant waives the right to appeal a 02 sentence as excessive and waives the right to seek reduction of a 03 sentence under Criminal Rule 35 if a plea agreement between the 04 defendant and the prosecuting attorney provides for a specific sentence 05 or a sentence equal to or less than a specified maximum; and 06  (iv) that the defendant waives the right to appeal as 07 excessive that portion of a sentence that is less than or equal to a 08 minimum sentence specified in a plea agreement between the defendant 09 and the prosecuting attorney and waives the right to seek reduction of 10 a sentence under Criminal Rule 35 to a length less than the length of 11 the minimum sentence. 12 * Sec. 23. Rule 11(e)(3) of the Alaska Rules of Criminal Procedure is amended to read: 13  (3) ACCEPTANCE OF PLEA. If the court accepts the plea agreement, 14 the court shall inform the defendant that the judgment and sentence will embody 15 [EITHER] the disposition provided for in the plea agreement [OR ANOTHER 16 DISPOSITION MORE FAVORABLE TO THE DEFENDANT]. 17 * Sec. 24. Rule 11(e)(4) of the Alaska Rules of Criminal Procedure is amended to read: 18  (4) REJECTION OF PLEA. If the court rejects the plea agreement, the 19 court shall inform the parties of this fact and advise the defendant personally in open 20 court that the court and the prosecuting attorney are [IS] not bound by the plea 21 agreement. The court shall then afford the defendant the opportunity to withdraw the 22 plea, and advise the defendant that if the defendant persists in the plea of guilty or 23 nolo contendere, the disposition of the case may be less favorable to the defendant 24 than that contemplated by the plea agreement. 25 * Sec. 25. Rule 11(h)(1) of the Alaska Rules of Criminal Procedure is amended to read: 26  (1) The court shall allow the defendant to withdraw a plea of guilty or 27 nolo contendere whenever the defendant, upon a timely motion for withdrawal filed 28 before the imposition of sentence, proves that withdrawal is necessary to correct 29 manifest injustice. 30  (i) A motion for withdrawal is untimely [TIMELY] and 31 is [NOT] barred if [BECAUSE] made subsequent to judgment or 01 sentence [IF IT IS MADE WITH DUE DILIGENCE].  After 02 imposition of sentence, the withdrawal of a plea may be sought only 03 under AS 12.72. 04  (ii) Withdrawal is necessary to correct a manifest 05 injustice whenever it is demonstrated that: 06  (aa) The defendant was denied the effective assistance 07 of counsel guaranteed by constitution, statute or rule, or 08  (bb) The plea was not entered or ratified by the 09 defendant or a person authorized to act in the defendant's behalf, or 10  (cc) The plea was involuntary, or was entered without 11 knowledge of the charge or that the sentence actually imposed could be 12 imposed, or 13  (dd) The defendant did not receive the charge or 14 sentence concessions contemplated by the plea agreement, and 15  (A) the prosecuting attorney failed to seek or opposed 16 the concessions promised in the plea agreement, or 17  (B) after being advised that the court no longer 18 concurred and after being called upon to affirm or withdraw the plea, 19 the defendant did not affirm the plea. 20  (iii) The defendant may move for withdrawal of the plea 21 without alleging innocence of the charge to which the plea has been 22 entered. 23 * Sec. 26. Rule 33 of the Alaska Rules of Criminal Procedure is amended to read: 24  RULE 33. NEW TRIAL.  (a) GROUNDS. The court may grant a new trial 25 to a defendant if required in the interest of justice.  The court may not grant a new 26 trial to a defendant on the ground that the jury's verdict is contrary to the weight 27 of the evidence. 28  (b) SUBSEQUENT PROCEEDINGS. If trial was by the court without a 29 jury, the court may vacate the judgment if entered, take additional testimony and enter 30 a new judgment. 31  (c) TIME FOR MOTION. A motion for a new trial based on the ground of 01 newly discovered evidence may be made only before or within 180 days [TWO 02 YEARS] after final judgment, but if an appeal is pending the court may grant the 03 motion only on remand of the case. A motion for a new trial based on any other 04 grounds shall be made within 5 days after verdict or finding of guilt, or within such 05 further time as the court may fix during the 5-day period. 06 * Sec. 27. Rule 35(a) of the Alaska Rules of Criminal Procedure is repealed and reenacted 07 to read: 08  (a) CORRECTION OF SENTENCE. The court may correct an illegal 09 sentence at any time. 10 * Sec. 28. Rule 35(b) of the Alaska Rules of Criminal Procedure is repealed and reenacted 11 to read: 12  (b) MODIFICATION OR REDUCTION OF SENTENCE. The court 13  (1) may modify or reduce a sentence within 60 days of the distribution 14 of the written judgment upon a motion made in the original criminal case; 15  (2) may not entertain a second or successive motion for similar relief 16 brought under this paragraph on behalf of the same defendant; 17  (3) may not reduce or modify a sentence so as to impose a term of 18 imprisonment that is less than the minimum required by law; 19  (4) may not reduce a sentence imposed in accordance with a plea 20 agreement between the defendant and the prosecuting attorney that provided for 21 imposition of a specific sentence or a sentence equal to or less than a specified 22 maximum; and 23  (5) may not reduce a sentence below the minimum specified in a plea 24 agreement between the defendant and the prosecuting attorney. 25 * Sec. 29. Rule 35.1(a) of the Alaska Rules of Criminal Procedure is amended to read: 26  (a) SCOPE. Any person who has been convicted of, or sentenced for, a crime 27 may institute a proceeding for post-conviction relief under AS 12.72.010 - 28 12.72.040 if the person [AND WHO] claims: 29  (1) that the conviction or the sentence was in violation of the 30 constitution of the United States or the constitution or laws of Alaska; 31  (2) that the court was without jurisdiction to impose sentence; 01  (3)  that a prior conviction has been set aside and the prior 02 conviction was used as a statutorily required enhancement of the sentence 03 imposed [THAT THE SENTENCE IMPOSED EXCEEDED THE MAXIMUM 04 AUTHORIZED BY LAW, OR IS OTHERWISE NOT IN ACCORDANCE WITH 05 THE SENTENCE AUTHORIZED BY LAW]; 06  (4) that there exists evidence of material facts, not previously presented 07 and heard, that requires vacation of the conviction or sentence in the interest of justice; 08  (5) that the applicant's [HIS] sentence has expired, that the 09 applicant's [HIS] probation, parole or conditional release has [HAVE] been 10 unlawfully revoked, or that the applicant [PERSON] is otherwise unlawfully held in 11 custody or other restraint; 12  (6) that the conviction or sentence is otherwise subject to collateral 13 attack upon any ground or alleged error heretofore available under any common law, 14 statutory or other writ, motion, petition, proceeding, or remedy; [OR] 15  (7) that 16   (A) there has been a significant change in law, whether 17 substantive or procedural, applied in the process leading to the applicant's 18 conviction or sentence; 19  (B) the change in law was not reasonably foreseeable by a 20 judge or a competent attorney; 21   (C) it is appropriate to retroactively apply the change in law 22 because the change in law requires observance of procedures without 23 which the likelihood of an accurate and fair conviction is seriously 24 diminished; and 25  (D) the failure to retroactively apply the change in law 26 would result in a fundamental miscarriage of justice, which is established 27 by demonstrating that, had the change in law been in effect at the time of 28 the applicant's trial, a reasonable trier of fact would have a reasonable 29 doubt as to the guilt of the applicant; 30   (8) that the applicant should be allowed to withdraw a plea of 31 guilty or nolo contendere in order to correct manifest injustice as set out in 01 Criminal Rule 11(h)(1)(ii); or 02  (9) that the applicant was not afforded effective assistance of 03 counsel at trial or on direct appeal [, WHEN SUFFICIENT REASONS EXIST TO 04 ALLOW RETROACTIVE APPLICATION OF THE CHANGED LEGAL 05 STANDARDS; MAY INSTITUTE A PROCEEDING UNDER THIS RULE TO 06 SECURE RELIEF]. 07 * Sec. 30. Rule 35.1(c) of the Alaska Rules of Criminal Procedure is amended to read: 08  (c) COMMENCEMENT OF PROCEEDINGS -- FILING -- SERVICE. A 09 proceeding is commenced by filing an application with the clerk at the court location 10 where the underlying criminal case was filed [OF THE COURT IN WHICH THE 11 CONVICTION OCCURRED]. Application forms will be furnished by the clerk of 12 court. An application must be filed within the time limitations set out in 13 AS 12.72.020. [MAY BE FILED AT ANY TIME.] The clerk shall open a new file 14 for the application, promptly bring it to the attention of the court and give a copy to 15 the district attorney. 16 * Sec. 31. Rule 35.1(d) of the Alaska Rules of Criminal Procedure is amended to read: 17  (d) APPLICATION -- CONTENTS. The application shall (1) identify the 18 proceedings in which the applicant was convicted, (2) state the date shown in the 19 clerk's certificate of distribution on the judgment complained of, (3) state the sentence 20 complained of and the date of sentencing, (4) specifically set forth the grounds upon 21 which the application is based, and (5) clearly state the relief desired.  If the 22 application challenges a Department of Corrections or Parole Board decision, the 23 application shall (1) identify the specific nature of the proceedings or challenged 24 decision, (2) state the date of the proceedings or decision, (3) specifically set forth 25 the facts and legal grounds upon which the application is based, and (4) clearly 26 state the relief desired. Facts within the personal knowledge of the applicant shall 27 be set forth separately from other allegations of facts and shall be under oath. 28 Affidavits, records, or other evidence supporting its allegations shall be attached to the 29 application or the application shall recite why they are not attached. The application 30 shall identify all previous proceedings, together with the grounds therein asserted, 31 taken by the applicant to secure relief from the conviction or sentence. Argument, 01 citations and discussion of authorities are unnecessary. Applications which are 02 incomplete shall be returned to the applicant for completion. 03 * Sec. 32. Rule 35.1(g) of the Alaska Rules of Criminal Procedure is amended to read: 04  (g) HEARING -- EVIDENCE -- ORDER. The application shall be heard in, 05 and before any judge of, the court in which the conviction took place. An electronic 06 recording of the proceeding shall be made. All rules and statutes applicable in civil 07 proceedings, including pre-trial and discovery procedures are available to the parties 08 except that the automatic disclosure provisions in the Alaska Rules of Civil 09 Procedure do not apply to post-conviction relief proceedings. The court may 10 receive proof by affidavits, depositions, oral testimony, or other evidence.  The 11 applicant bears the burden of proving all factual assertions by clear and 12 convincing evidence. The court may order the applicant brought before it for the 13 hearing or allow the applicant to participate telephonically or by video 14 conferencing. If the court finds in favor of the applicant, it shall enter an appropriate 15 order with respect to the conviction or sentence in the former proceedings, and any 16 supplementary orders as to rearraignment, retrial, custody, bail, discharge, correction 17 of sentence, or other matters that may be necessary and proper. The court shall make 18 specific findings of fact, and state expressly its conclusions of law, relating to each 19 issue presented. The order made by the court is a final judgment. 20 * Sec. 33. Alaska Rule of Criminal Procedure 35.1(h) is repealed. 21 * Sec. 34. Notwithstanding any other provision of this Act, a person whose conviction was 22 entered before July 1, 1994, has until July 1, 1996, to file a claim under AS 12.72. 23 * Sec. 35. (a) AS 09.19.040, added by sec. 1 of this Act, and the provision of sec. 32 of 24 this Act relating to automatic disclosure, take effect only if the Alaska Supreme Court orders 25 amendments to the Alaska Rules of Civil Procedure that require automatic disclosure in civil 26 actions involving prisoners against the state, a state employee, or a former state employee 27 regarding conduct that occurred during that employee's state employment. 28 (b) If AS 09.19.040, added by sec. 1 of this Act, and the provision of sec. 32 of this 29 Act relating to automatic disclosure, take effect under (a) of this section, they take effect on 30 the effective date of the Alaska Supreme Court's rule amendment described in (a) of this 31 section. 01 * Sec. 36. Except as provided in sec. 35 of this Act, this Act takes effect July 1, 1995, 02 only if this Act receives the two-thirds majority vote of each house required by art. IV, 03 sec. 15, Constitution of the State of Alaska.