CSHB 201(FIN): "An Act relating to prisoner litigation, post-conviction relief, sentence appeals, execution on judgments against prisoners; amending Alaska Administrative Rule 10, Alaska Rules of Appellate Procedure 204, 208, 209, 215, 403, 521, 602, 603, and 604, Alaska Rules of Civil Procedure 3, 16.1, and 65, and Alaska Rules of Criminal Procedure 11, 33, 35, and 35.1; and providing for an effective date."
00CS FOR HOUSE BILL NO. 201(FIN) 01 "An Act relating to prisoner litigation, post-conviction relief, sentence appeals, 02 execution on judgments against prisoners; amending Alaska Administrative Rule 03 10, Alaska Rules of Appellate Procedure 204, 208, 209, 215, 403, 521, 602, 603, 04 and 604, Alaska Rules of Civil Procedure 3, 16.1, and 65, and Alaska Rules 05 of Criminal Procedure 11, 33, 35, and 35.1; and providing for an effective 06 date." 07 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 08 * Section 1. AS 09 is amended by adding a new chapter to read: 09 CHAPTER 19. PRISONER LITIGATION AGAINST THE STATE. 10 Sec. 09.19.010. LIMITATION ON EXEMPTION FROM FILING FEES. (a) 11 A prisoner may not commence litigation against the state unless the prisoner has paid 12 full filing fees to the court or is a claimant under AS 23.20, except that the court may 13 exempt a prisoner from paying part of those fees if the court finds exceptional 14 circumstances as described in this section.
01 (b) To apply for a filing fee exemption, a prisoner shall submit to the court 02 (1) an affidavit that clearly discloses that the person is a prisoner and 03 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 certified 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 prisoner's 25 account described in (b)(2) of this section, or the average balance in that account, not 26 to exceed the amount of the full filing fee required under applicable court rules. 27 (e) The court shall mail or otherwise serve its order under (d) of this section 28 on the prisoner. Along with its order, the court shall give written notice that the case 29 or appeal will not be accepted for filing if payment of a filing fee is not made within 30 30 days after the date of distribution of the order, unless the time for payment is 31 extended by the court. If timely payment is not made, the court may not accept any
01 filing in the case or appeal. If payment is made, the prisoner's filing and supporting 02 documents shall be accepted for filing with the court. 03 Sec. 09.19.020. DISMISSAL FOR MATERIAL MISSTATEMENTS. If a 04 prisoner has filed litigation against the state, the court shall dismiss that litigation if 05 the court finds that the pleadings filed by the prisoner or an application filed by the 06 prisoner to obtain an exemption under AS 09.19.010 contain a material statement made 07 by the prisoner that is not true. 08 Sec. 09.19.030. STAY IN PRISONER DISCIPLINARY APPEALS. A 09 superior court that reviews a disciplinary decision of the Department of Corrections 10 as an administrative appeal may not enter an order staying disciplinary sanctions unless 11 the pleadings filed by the prisoner establish by clear and convincing evidence that the 12 prisoner has alleged a violation of a fundamental constitutional right and is likely to 13 succeed on the merits in the appeal, that the prisoner faces irreparable harm if a stay 14 is not granted, that the Department of Corrections can be adequately protected if a stay 15 is granted, and that a stay will not adversely affect the public interest in effective penal 16 administration. 17 Sec. 09.19.040. INJUNCTIONS OR ORDERS IMPOSING OBLIGATIONS 18 IN PRISONER CASES. In litigation against the state brought by a prisoner, a court 19 may not enter an injunction or issue an order or decision that would impose an 20 obligation on the state or its employees that would exceed the obligations imposed by 21 the United States Constitution, the Constitution of the State of Alaska, and applicable 22 federal and state statutes and regulations, unless the obligation is agreed to by the state. 23 Sec. 09.19.050. DISCOVERY IN PRISONER CASES. The automatic 24 disclosure provisions of Alaska Rule of Civil Procedure 16.1 do not apply to litigation 25 against the state brought by a prisoner. 26 Sec. 09.19.100. DEFINITIONS. In this chapter, 27 (1) "litigation against the state" means a civil action or an appeal from 28 a civil action or from the final decision of an administrative agency that 29 (A) involves the state, an officer or agent of the state, or a state 30 employee, or a former officer or agent of the state or state employee, regarding 31 conduct that occurred during that former officer's, agent's, or employee's state
01 employment or agency, whether the officer, agent, or employee is sued in an 02 official or a personal capacity; and 03 (B) is related to a person's status or treatment as a prisoner or 04 to a criminal charge against or involving the person; 05 (2) "prisoner" has the meaning 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 new subsections to read: 26 (f) The state may execute on a judgment awarded to the state and an officer 27 or agent of the state or a state employee, or a former officer, agent, or employee of the 28 state may execute on a judgment to that person against a party to an action who is 29 incarcerated for a criminal conviction by sending a notice of levy to the correctional 30 facility in which the person is incarcerated. All money in an incarcerated person's 31 account at a correctional facility is available for disbursement under a notice of levy
01 under this subsection, in the following order of priority: 02 (1) to support the dependents of the incarcerated person and to provide 03 child support payments as required by AS 25.27; 04 (2) to satisfy restitution or fines ordered by a sentencing court to be 05 paid by the incarcerated person; 06 (3) to pay a civil judgment entered against the incarcerated person as 07 a result of that person's criminal conduct; 08 (4) to reimburse the state for an award made for violent crimes 09 compensation under AS 18.67 as a result of the incarcerated person's criminal conduct; 10 (5) to satisfy other judgments entered against a prisoner in litigation 11 against the state; in this paragraph, "litigation against the state" has the meaning given 12 in AS 09.19.100. 13 (g) In this section, "correctional facility" has the meaning given in 14 AS 33.30.901. 15 * Sec. 5. AS 12.30.040 is amended by adding a new subsection to read: 16 (c) A person who has been convicted of an offense and who has filed an 17 application for post-conviction relief may not be released on bail until the trial court 18 or an appellate court enters an order vacating all convictions against the person. A 19 person who has prevailed on an application for post-conviction relief may seek release 20 before trial in accordance with the provisions of AS 12.30.020. 21 * Sec. 6. AS 12.55.120(a) is amended to read: 22 (a) A sentence of imprisonment lawfully imposed by the superior court for a 23 term or for aggregate terms exceeding two years of unsuspended incarceration for 24 a felony offense or exceeding 120 days for a misdemeanor offense [OF ONE YEAR 25 OR MORE] may be appealed to the court of appeals by the defendant on the ground 26 that the sentence is excessive, unless the sentence was imposed in accordance with 27 a plea agreement under the applicable Alaska Rules of Criminal Procedure and 28 that agreement provided for imposition of a specific sentence or a sentence equal 29 to or less than a specified maximum sentence. If the superior court imposed a 30 sentence in accordance with a plea agreement that provided for a minimum 31 sentence, the defendant may appeal only that portion of the sentence that exceeds
01 the minimum sentence provided for in the plea agreement and that exceeds two 02 years of unsuspended incarceration for a felony offense or 120 days of 03 unsuspended incarceration for a misdemeanor offense. By appealing a sentence 04 under this section, the defendant waives the right to plead that by a revision of the 05 sentence resulting from the appeal the defendant has been twice placed in jeopardy for 06 the same offense. 07 * Sec. 7. AS 12.55.120(d) is amended to read: 08 (d) A sentence of imprisonment lawfully imposed by the district court for a 09 term or for aggregate terms exceeding 120  days of unsuspended incarceration 10 may be appealed to the superior court by the defendant on the ground that the sentence 11 is excessive, unless the sentence was imposed in accordance with a plea agreement 12 under the applicable Alaska Rules of Criminal Procedure and that agreement 13 provided for imposition of a specific sentence or a sentence equal to or less than 14 a specified maximum sentence. If the district court imposed a sentence in 15 accordance with a plea agreement that provided for a minimum sentence, the 16 defendant may appeal only that portion of the sentence that exceeds the minimum 17 sentence provided for in the plea agreement and that exceeds 120 days of 18 unsuspended incarceration. By appealing a sentence under this section, the 19 defendant waives the right to plead that by a revision of the sentence resulting from 20 the appeal the defendant has been twice placed in jeopardy for the same offense. A 21 sentence of imprisonment lawfully imposed by the district court may be appealed to 22 the superior court by the state on the ground that the sentence is too lenient; however, 23 when a sentence is appealed by the state, the court may not increase the sentence but 24 may express its approval or disapproval of the sentence and its reasons in a written 25 opinion. 26 * Sec. 8. AS 12 is amended by adding a new chapter to read: 27 CHAPTER 72. POST-CONVICTION RELIEF 28 PROCEDURES FOR PERSONS CONVICTED OF CRIMINAL OFFENSES. 29 Sec. 12.72.010. SCOPE OF POST-CONVICTION RELIEF. A person who has 30 been convicted of, or sentenced for, a crime may institute a proceeding for post-conviction relief if the person claims 31 (1) that the conviction or the sentence was in violation of the
01 Constitution of the United States or the constitution or laws of this state; 02 (2) that the court was without jurisdiction to impose sentence; 03 (3) that a prior conviction has been set aside and the prior conviction 04 was used as a statutorily required enhancement of the sentence imposed; 05 (4) that there exists evidence of material facts, not previously presented 06 and heard by the court, that requires vacation of the conviction or sentence in the 07 interest of justice; 08 (5) that the person's sentence has expired, or the person's probation, 09 parole, or conditional release has been unlawfully revoked, or the person is otherwise 10 unlawfully held in custody or other restraint; 11 (6) that the conviction or sentence is otherwise subject to collateral 12 attack upon any ground or alleged error previously available under the common law, 13 statutory law, or other writ, motion, petition, proceeding, or remedy; 14 (7) that 15 (A) there has been a significant change in law, whether 16 substantive or procedural, applied in the process leading to the person's 17 conviction or sentence; 18 (B) the change in the law was not reasonably foreseeable by a 19 judge or a competent attorney; 20 (C) it is appropriate to retroactively apply the change in law 21 because the change requires observance of procedures without which the 22 likelihood of an accurate conviction is seriously diminished; and 23 (D) the failure to retroactively apply the change in law would 24 result in a fundamental miscarriage of justice, which is established by 25 demonstrating that, had the changed law been in effect at the time of the 26 applicant's trial, a reasonable trier of fact would have a reasonable doubt as to 27 the guilt of the applicant; 28 (8) that after the imposition of sentence, the applicant seeks to 29 withdraw a plea of guilty or nolo contendere in order to correct manifest injustice 30 under the Alaska Rules of Criminal Procedure; or 31 (9) that the applicant was not afforded effective assistance of counsel
01 at trial or on direct appeal. 02 Sec. 12.72.020. LIMITATIONS ON APPLICATIONS FOR POST-CONVICTION RELIEF. (a) A claim may not 03 be brought under AS 12.72.010 or the 04 Alaska Rules of Criminal Procedure if 05 (1) the claim is based on the admission or exclusion of evidence at trial 06 or on the ground that the sentence is excessive; 07 (2) the claim was, or could have been but was not, raised in a direct 08 appeal from the proceeding that resulted in the conviction; 09 (3) the later of the following dates has passed, except that if the 10 applicant claims that the sentence was illegal there is no time limit on the claim: 11 (A) if the claim relates to a conviction, two years after the entry 12 of the judgment of the conviction or, if the conviction was appealed, one year 13 after the court's decision is final under the Alaska Rules of Appellate 14 Procedure; 15 (B) if the claim relates to a court revocation of probation, two 16 years after the entry of the court order revoking probation or, if the order 17 revoking probation was appealed, one year after the court's decision is final 18 under the Alaska Rules of Appellate Procedure; 19 (4) one year or more has elapsed from the final administrative decision 20 of the Board of Parole or the Department of Corrections that is being collaterally 21 attacked; 22 (5) the claim was decided on its merits or on procedural grounds in any 23 previous proceeding; or 24 (6) a previous application for post-conviction relief has been filed under 25 this chapter or under the Alaska Rules of Criminal Procedure. 26 (b) Notwithstanding (a)(3) and (4) of this section, a court may hear a claim 27 (1) if the applicant establishes due diligence in presenting the claim and 28 sets out facts supported by admissible evidence establishing that the applicant 29 (A) suffered from a physical disability or from a mental disease 30 or defect that precluded the timely assertion of the claim; or 31 (B) was physically prevented by an agent of the state from
01 filing a timely claim; 02 (2) based on newly discovered evidence if the applicant establishes due 03 diligence in presenting the claim and sets out facts supported by evidence that is 04 admissible and 05 (A) was not known within 06 (i) two years after entry of the judgment of conviction 07 if the claim relates to a conviction; 08 (ii) two years after entry of a court order revoking 09 probation if the claim relates to a court's revocation of probation; or 10 (iii) one year after an administrative decision of the 11 Board of Parole or the Department of Corrections is final if the claim 12 relates to the administrative decision; 13 (B) is not cumulative to the evidence presented at trial; 14 (C) is not impeachment evidence; and 15 (D) establishes by clear and convincing evidence that the 16 applicant is innocent. 17 (c) Notwithstanding (a)(6) of this section, a court may hear a claim based on 18 a final administrative decision of the Board of Parole or the Department of Corrections 19 if 20 (1) the claim was not and could not have been challenged in a previous 21 application for post-conviction relief filed under this chapter or under the Alaska Rules 22 of Criminal Procedure; and 23 (2) a previous application for post-conviction relief relating to the 24 administrative decision has not been filed under this chapter or under the Alaska Rules 25 of Criminal Procedure. 26 Sec. 12.72.030. FILING OF APPLICATION FOR POST-CONVICTION 27 RELIEF. An application for post-conviction relief shall be filed with the clerk at the 28 court location where the underlying criminal case is filed. 29 Sec. 12.72.040. BURDEN OF PROOF IN POST-CONVICTION RELIEF 30 PROCEEDINGS. A person applying for post-conviction relief must prove all factual 31 assertions by clear and convincing evidence.
01 * Sec. 9. AS 18.85.100 is amended by adding a new subsection to read: 02 (c) An indigent person is entitled to representation under (a) and (b) of this 03 section for purposes of bringing a timely application for post-conviction relief under 04 AS 12.72. An indigent person is not entitled to representation under (a) and (b) of this 05 section for purposes of bringing 06 (1) an untimely or successive application for post-conviction relief 07 under AS 12.72; 08 (2) a petition for review or certiorari from an appellate court ruling on 09 an application for post-conviction relief; or 10 (3) an action or claim for habeas corpus in federal court attacking a 11 state conviction. 12 * Sec. 10. AS 22.07.020(b) is amended to read: 13 (b) Except as limited in AS 12.55.120, the [THE] court of appeals has 14 jurisdiction to hear appeals of unsuspended sentences of imprisonment exceeding two 15 years for a felony offense or 120 days for a misdemeanor offense imposed by the 16 superior court on the grounds that the sentence is excessive, or a sentence of any 17 length on the grounds that it is too lenient. The court of appeals [AND], in the 18 exercise of this jurisdiction, may modify the sentence as provided by law and the state 19 constitution. 20 * Sec. 11. AS 22.07.020(c) is amended to read: 21 (c) The court of appeals has jurisdiction to review (1) a final decision of the 22 district court in an action or proceeding involving criminal prosecution, post-conviction 23 relief, extradition, probation and parole, habeas corpus, or bail; and (2) the final 24 decision of the district court on a sentence imposed by it if the sentence exceeds 120 25 days of unsuspended incarceration for a misdemeanor offense. In this subsection, 26 "final decision" means a decision or order, other than dismissal by consent of all 27 parties, that closes a matter in the district court. 28 * Sec. 12. AS 22.10.020(f) is amended to read: 29 (f) An appeal to the superior court may be taken on the ground that an 30 unsuspended [A] sentence of imprisonment exceeding 120 [OF 90] days [OR MORE] 31 was excessive and the superior court in the exercise of this jurisdiction has the power
01 to reduce the sentence. The state may appeal a sentence on the ground that it is too 02 lenient. When a sentence is appealed on the ground that it is too lenient, the court 03 may not increase the sentence but may express its approval or disapproval of the 04 sentence and its reasons in a written opinion. 05 * Sec. 13. AS 33.30 is amended by adding a new section to read: 06 Sec. 33.30.295. REVIEW OF PRISONER DISCIPLINARY DECISIONS. (a) 07 A prisoner may obtain judicial review by the superior court of a final disciplinary 08 decision by the department only if the prisoner alleges specific facts establishing a 09 violation of the prisoner's fundamental constitutional rights that prejudiced the 10 prisoner's right to a fair adjudication. An appeal shall be commenced by the prisoner 11 filing a notice of appeal and other required documents in accordance with AS 09.19 12 and the applicable rules of court governing administrative appeals that do not conflict 13 with AS 09.19. Unless the appeal is not accepted for filing under AS 09.19.010 or is 14 dismissed under AS 09.19.020, a record of the proceedings shall be prepared by the 15 department, consisting of the original papers and exhibits submitted in the disciplinary 16 process and a cassette tape of the disciplinary hearing. The record shall be prepared 17 and transmitted in accordance with the applicable rules of court governing 18 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 Constitution or United States Constitution; if such 26 prejudice is found, the court shall enter judgment as provided in (c) of this section and 27 remand the case to the department; 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 to 02 allocate resources within the department and to control security and administration 03 within the prison system. 04 * Sec. 14. AS 33.32.060 is amended to read: 05 Sec. 33.32.060. LIMITATION ON ATTACHMENT, ETC., OF WAGES. 06 Except for execution by the state under AS 09.38.030(f), only [ONLY] the prisoner 07 payments retained by the commissioner of corrections under AS 33.32.050(d) are 08 subject to lien, attachment, garnishment, execution, or similar procedures to encumber 09 funds or property. 10 * Sec. 15. Rule 10, Alaska Administrative Rules of Court, is amended by adding a new 11 subsection to read: 12 (e) The provisions of this rule do not apply to an exemption from payment of 13 filing fees in litigation against the state. In this subsection, "litigation against the state" 14 has the meaning given in AS 09.19.100. 15 * Sec. 16. Rule 204(b), Alaska Rules of Appellate Procedure, is amended to read: 16 (b) Appeal -- How Taken. A party may appeal from a final order or judgment 17 by filing a notice of appeal with the clerk of the appellate courts. The notice of appeal 18 must identify the party taking the appeal, the final order or judgment appealed from, 19 and the court to which the appeal is taken. The notice of appeal must be accompanied 20 by 21 (1) a completed docketing statement in the form prescribed by these 22 rules; 23 (2) a copy of the final order or judgment from which the appeal is 24 taken; 25 (3) a statement of points on appeal as required by Rule 204(e); 26 (4) unless the party is represented by court-appointed counsel, [OR] the 27 party is the state or an agency thereof, or the party is a prisoner whom the court 28 finds is eligible to pay less than full fees under AS 09.19.010, 29 (A) the filing fee required by Administrative Rule 9(a); 30 (B) a motion for waiver of filing fee pursuant to Administrative 31 Rule 9(f)(1); or
01 (C) a motion to appeal at public expense pursuant to Rule 209; 02 (5) unless the party is represented by court-appointed counsel, the party 03 is the state, municipality, or officer or agency thereof, or the party is an employee 04 appealing denial of compensation by the Alaska Workers' Compensation Board or 05 denial of benefits under AS 23.20 (Employment Security Act), 06 (A) the cost bond or deposit required by Rule 204(c)(1); 07 (B) a copy of a superior court order approving the party's 08 supersedeas bond or other security in lieu of bond or a copy of the party's 09 motion to the superior court for approval of a supersedeas bond or other 10 security; 11 (C) a motion for waiver of cost bond; or 12 (D) a motion to appeal at public expense pursuant to Rule 209; 13 (6) a designation of transcript if the party intends to have portions of 14 the electronic record transcribed pursuant to Rule 210(b); and 15 (7) proof of service of the notice of appeal and all required 16 accompanying documents, except the filing fee, on 17 (A) the clerk of the trial court which entered the judgment or 18 order being appealed; and 19 (B) all other parties to the trial court action. 20 A party may move for an extension of time to file the docketing statement, the 21 statement of points on appeal, and the designation of transcript. The clerk of the 22 appellate courts shall refuse to accept for filing any notice of appeal not conforming 23 to this paragraph and accompanied by the items specified in (1) - (7) or a motion to 24 extend the time for filing item (1), (3), or (6). 25 * Sec. 17. Rule 208, Alaska Rules of Appellate Procedure, is repealed and reenacted to 26 read: 27 RULE 208. CUSTODY OF PRISONERS IN POST-CONVICTION RELIEF 28 PROCEEDINGS. (a) Release of Applicant Pending Review of Order Denying 29 Release. The court having jurisdiction over the appeal of a denial of an application 30 for post-conviction relief may not grant bail or release the applicant pending appeal. 31 If the appellate court determines that post-conviction relief should be granted, the case
01 shall be remanded to the trial court for a bail hearing. 02 (b) Release of Applicant Pending Review of Decision Ordering a New Trial. 03 If an appeal of an order granting an applicant a new trial is pending, Appellate Rule 04 206(b) shall govern an appeal from an order that denies bail pending appeal or imposes 05 conditions of release pending appeal. 06 * Sec. 18. Rule 209(a), Alaska Rules of Appellate Procedure, is amended by adding a new 07 paragraph to read: 08 (7) The provisions of this subsection do not apply to the filing fees in 09 a prisoner's appeal against the state or an officer, agent, employee, or former officer, 10 agent, or employee of the state that is governed by the provisions of AS 09.19. 11 * Sec. 19. Rule 215(a), Alaska Rules of Appellate Procedure, is repealed and reenacted to 12 read: 13 (a) Notification of Right to Appeal Sentence. At the time of imposition of a 14 sentence of more than two years of unsuspended incarceration for a felony offense, or 15 more than 120 days of unsuspended incarceration for a misdemeanor offense, the judge 16 shall inform the defendant that 17 (1) if the sentence was 18 (A) imposed in accordance with a plea agreement under 19 Criminal Rule 11, the defendant may appeal as excessive only the part of the 20 sentence that exceeds the minimum sentence provided for in the plea 21 agreement; or 22 (B) not imposed in accordance with a plea agreement, the 23 defendant may appeal the sentence on the ground that it is excessive; 24 (2) upon an appeal of the sentence, the appellate court may reduce or 25 increase the sentence and that, by appealing the sentence under this rule, the defendant 26 waives the right to plead that by a revision of the sentence resulting from the appeal 27 the defendant has been twice placed in jeopardy for the same offense; and 28 (3) if the defendant wants counsel and is unable to pay for the services 29 of an attorney, the court will appoint an attorney to represent the defendant on the 30 appeal. 31 * Sec. 20. Rule 521, Alaska Rules of Appellate Procedure, is amended to read:
01 RULE 521. CONSTRUCTION. These rules are designed to facilitate business 02 and advance justice. They may be relaxed or dispensed with by the appellate courts 03 where a strict adherence to them will work surprise or injustice. In a matter 04 involving the validity of a criminal conviction or sentence, this rule does not 05 authorize an appellate court or the superior court, when acting as an intermediate 06 appellate court, to allow 07 (1) the notice of appeal to be filed more than 60 days late; or 08 (2) a petition for review or petition for hearing to be filed more 09 than 60 days late. 10 * Sec. 21. Rule 603(a), Alaska Rules of Appellate Procedure, is amended by adding a new 11 paragraph to read: 12 (6) Stay in Prisoner Disciplinary Appeals. The court may not stay 13 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 prepared. 21 * Sec. 22. Rule 604(b)(1)(A), Alaska Rules of Appellate Procedure, is amended to read: 22 (A) The record on appeal consists of the original papers and 23 exhibits filed with the administrative agency, and a typed transcript of the 24 record of proceedings before the agency. In an appeal from the revocation of 25 a driver's license by the Division of Motor Vehicles or from a prisoner 26 disciplinary decision of the Department of Corrections, the record of 27 proceedings will include cassettes rather than transcripts unless otherwise 28 ordered by the court. 29 * Sec. 23. Rule 11(c), Alaska Rules of Criminal Procedure, is amended by adding a new 30 paragraph to read: 31 (4) in cases when a plea agreement has been accepted by a court,
01 informing the defendant: 02 (i) that the defendant waives the right to appeal a 03 sentence as excessive and waives the right to seek reduction of a 04 sentence under Criminal Rule 35 if a plea agreement between the 05 defendant and the prosecuting attorney provides for a specific sentence 06 or a sentence equal to or less than a specified maximum; and 07 (ii) that the defendant waives the right to appeal as 08 excessive that portion of a sentence that is less than or equal to a 09 minimum sentence specified in a plea agreement between the defendant 10 and the prosecuting attorney and waives the right to seek reduction of 11 a sentence under Criminal Rule 35 to a length less than the length of 12 the minimum sentence. 13 * Sec. 24. Rule 11(e)(3), Alaska Rules of Criminal Procedure, is amended to read: 14 (3) Acceptance of Plea. If the court accepts the plea agreement, the 15 court shall inform the defendant that the judgment and sentence will embody 16 [EITHER] the disposition provided for in the plea agreement [OR ANOTHER 17 DISPOSITION MORE FAVORABLE TO THE DEFENDANT]. 18 * Sec. 25. Rule 11(e)(4), Alaska Rules of Criminal Procedure, is amended to read: 19 (4) Rejection of Plea. If the court rejects the plea agreement, the court 20 shall inform the parties of this fact and advise the defendant personally in open court 21 that the court and the prosecuting attorney are [IS] not bound by the plea agreement. 22 The court shall then afford the defendant the opportunity to withdraw the plea, and 23 advise the defendant that if the defendant persists in the plea of guilty or nolo 24 contendere, the disposition of the case may be less favorable to the defendant than that 25 contemplated by the plea agreement. 26 * Sec. 26. Rule 11(h)(1), Alaska Rules of Criminal Procedure, is amended to read: 27 (1) The court shall allow the defendant to withdraw a plea of guilty or 28 nolo contendere whenever the defendant, upon a timely motion for withdrawal filed 29 before the imposition of sentence, proves that withdrawal is necessary to correct 30 manifest injustice. 31 (i) A motion for withdrawal is untimely [TIMELY] and is
01 [NOT] barred if [BECAUSE] made subsequent to judgment or sentence [IF IT 02 IS MADE WITH DUE DILIGENCE]. After imposition of sentence, the 03 withdrawal of a plea may be sought only under AS 12.72. 04 (ii) Withdrawal is necessary to correct a manifest injustice 05 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 16 opposed 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 19 plea, 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 entered. 22 * Sec. 27. Rule 33, Alaska Rules of Criminal Procedure, is amended to read: 23 RULE 33. NEW TRIAL. (a) Grounds. The court may grant a new trial to 24 a defendant if required in the interest of justice. 25 (b) Subsequent Proceedings. If trial was by the court without a jury, the 26 court may vacate the judgment if entered, take additional testimony, and enter a new 27 judgment. 28 (c) Time for Motion. A motion for a new trial based on the ground of newly 29 discovered evidence may be made only before or within 180 days [TWO YEARS] 30 after final judgment, but if an appeal is pending the court may grant the motion only 31 on remand of the case. A motion for a new trial based on any other grounds shall be
01 made within 5 days after verdict or finding of guilt, or within such further time as the 02 court may fix during the 5-day period. 03 * Sec. 28. Rule 35(a), Alaska Rules of Criminal Procedure, is repealed and reenacted to 04 read: 05 (a) Correction of Sentence. The court may correct an illegal sentence at any 06 time. 07 * Sec. 29. Rule 35(b), Alaska Rules of Criminal Procedure, is repealed and reenacted to 08 read: 09 (b) Modification or Reduction of Sentence. The court 10 (1) may modify or reduce a sentence within 120 days of the distribution 11 of the written judgment upon a motion made in the original criminal case; 12 (2) may not entertain a second or successive motion for similar relief 13 brought under this paragraph on behalf of the same defendant; 14 (3) may not reduce or modify a sentence so as to impose a term of 15 imprisonment that is less than the minimum required by law; 16 (4) may not reduce a sentence imposed in accordance with a plea 17 agreement between the defendant and the prosecuting attorney that provided for 18 imposition of a specific sentence or a sentence equal to or less than a specified 19 maximum; and 20 (5) may not reduce a sentence below the minimum specified in a plea 21 agreement between the defendant and the prosecuting attorney. 22 * Sec. 30. Rule 35.1(a), Alaska Rules of Criminal Procedure, is amended to read: 23 (a) Scope. Any person who has been convicted of, or sentenced for, a crime 24 may institute a proceeding for post-conviction relief under AS 12.72.010 - 25 12.72.040 if the person [AND WHO] claims: 26 (1) that the conviction or the sentence was in violation of the 27 constitution of the United States or the constitution or laws of Alaska; 28 (2) that the court was without jurisdiction to impose sentence; 29 (3) that a prior conviction has been set aside and the prior 30 conviction was used as a statutorily required enhancement of [THAT] the sentence 31 imposed [EXCEEDED THE MAXIMUM AUTHORIZED BY LAW, OR IS
01 OTHERWISE NOT IN ACCORDANCE WITH THE SENTENCE AUTHORIZED BY 02 LAW]; 03 (4) that there exists evidence of material facts, not previously presented 04 and heard, that requires vacation of the conviction or sentence in the interest of justice; 05 (5) that the applicant's [HIS] sentence has expired, that the 06 applicant's [HIS] probation, parole, or conditional release has [HAVE] been 07 unlawfully revoked, or that the applicant [PERSON] is otherwise unlawfully held in 08 custody or other restraint; 09 (6) that the conviction or sentence is otherwise subject to collateral 10 attack upon any ground or alleged error heretofore available under any common law, 11 statutory or other writ, motion, petition, proceeding, or remedy; [OR] 12 (7) that 13 (A) there has been a significant change in law, whether 14 substantive or procedural, applied in the process leading to the applicant's 15 conviction or sentence; 16 (B) the change in law was not reasonably foreseeable by a 17 judge or a competent attorney; 18 (C) it is appropriate to retroactively apply the change in law 19 because the change in law requires observance of procedures without 20 which the likelihood of an accurate and fair conviction is seriously 21 diminished; and 22 (D) the failure to retroactively apply the change in law 23 would result in a fundamental miscarriage of justice, which is established 24 by demonstrating that, had the change in law been in effect at the time of 25 the applicant's trial, a reasonable trier of fact would have a reasonable 26 doubt as to the guilt of the applicant; 27 (8) that the applicant should be allowed to withdraw a plea of 28 guilty or nolo contendere in order to correct manifest injustice as set out in 29 Criminal Rule 11(h)(1)(ii); or 30 (9) that the applicant was not afforded effective assistance of 31 counsel at trial or on direct appeal [, WHEN SUFFICIENT REASONS EXIST TO
01 ALLOW RETROACTIVE APPLICATION OF THE CHANGED LEGAL 02 STANDARDS; MAY INSTITUTE A PROCEEDING UNDER THIS RULE TO 03 SECURE RELIEF]. 04 * Sec. 31. Rule 35.1(c), Alaska Rules of Criminal Procedure, is amended to read: 05 (c) Commencement of Proceedings -- Filing -- Service. A proceeding is 06 commenced by filing an application with the clerk at the court location where the 07 underlying criminal case is filed [OF THE COURT IN WHICH THE CONVICTION 08 OCCURRED]. Application forms will be furnished by the clerk of court. An 09 application must [MAY] be filed within the [AT ANY] time limitations set out in 10 AS 12.72.020. The clerk shall open a new file for the application, promptly bring it 11 to the attention of the court and give a copy to the district attorney. 12 * Sec. 32. Rule 35.1(d), Alaska Rules of Criminal Procedure, is amended to read: 13 (d) Application -- Contents. The application shall (1) identify the proceedings 14 in which the applicant was convicted, (2) state the date shown in the clerk's certificate 15 of distribution on the judgment complained of, (3) state the sentence complained of 16 and the date of sentencing, (4) specifically set forth the grounds upon which the 17 application is based, and (5) clearly state the relief desired. If the application 18 challenges a Department of Corrections or Board of Parole decision, the 19 application shall (1) identify the specific nature of the proceedings or challenged 20 decision, (2) state the date of the proceedings or decision, (3) specifically set forth 21 the facts and legal grounds upon which the application is based, and (4) clearly 22 state the relief desired. Facts within the personal knowledge of the applicant shall 23 be set out [FORTH] separately from other allegations of facts and shall be under oath. 24 Affidavits, records, or other evidence supporting its allegations shall be attached to the 25 application or the application shall recite why they are not attached. The application 26 shall identify all previous proceedings, together with the grounds therein asserted, 27 taken by the applicant to secure relief from the conviction or sentence including any 28 previous applications for post-conviction relief. Argument, citations and discussion 29 of authorities are unnecessary. Applications which are incomplete shall be returned 30 to the applicant for completion. 31 * Sec. 33. Rule 35.1(e), Alaska Rules of Criminal Procedure, is amended to read:
01 (e) Indigent Applicant. 02 (1) If the applicant is indigent, filing fees shall be paid under the 03 provisions of AS 09.19 and [, TRANSCRIPT AND OTHER COURT COSTS SHALL 04 BE BORNE BY THE STATE. WHERE THE COURT DETERMINES THAT THE 05 APPLICATION SHALL NOT BE SUMMARILY DISPOSED OF ON THE 06 PLEADINGS AND RECORD PURSUANT TO SUBDIVISION (f) OF THIS RULE, 07 BUT THAT THE ISSUE RAISED BY THE APPLICATION REQUIRE AN 08 EVIDENTIARY HEARING,] counsel shall be appointed consistent with AS 18.85.100 09 to assist the applicant [INDIGENT APPLICANTS]. 10 (2) Within 60 days of court appointment under (e)(1) of this rule, 11 counsel shall file with the court and serve on the prosecuting attorney 12 (A) an amended application or a notice that counsel will 13 proceed on the grounds alleged in the application filed by the applicant; 14 or 15 (B) a certificate that counsel 16 (i) does not have a conflict of interest; 17 (ii) has completed a review of the facts and law in the 18 underlying proceeding or action challenged in the application; 19 (iii) has consulted with the applicant and, if 20 appropriate, with trial counsel; and 21 (iv) has determined that the application does not 22 allege a colorable claim for relief. 23 * Sec. 34. Rule 35.1(f)(1), Alaska Rules of Criminal Procedure, is amended to read: 24 (1) The state shall file an answer or a motion within 45 days of 25 service of an original, amended, or supplemental application filed by counsel or 26 by an applicant who elects to proceed without counsel, or of a notice of intent to 27 proceed on the original application under (e)(2)(A) of this rule. The applicant 28 shall have 30 days to file an opposition, and the state shall have 15 days to file a 29 reply. The motion, opposition, and reply may be supported by affidavit. [WITHIN 30 30 DAYS AFTER THE FILING OF THE APPLICATION, OR WITHIN SUCH 31 FURTHER TIME AS THE COURT MAY FIX, THE STATE SHALL RESPOND BY
01 ANSWER OR BY MOTION WHICH MAY BE SUPPORTED BY AFFIDAVITS.] 02 At any time prior to entry of judgment the court may grant leave to withdraw the 03 application. The court may make appropriate orders for amendment of the application 04 or any pleading or motion, for pleading over, for filing further pleadings or motions, 05 or for extending the time of the filing of any pleading. In considering a pro se [THE] 06 application the court shall consider substance and disregard defects of form, but a pro 07 se applicant will be held to the same burden of proof and persuasion as an 08 applicant proceeding with counsel. If the application is not accompanied by the 09 record of the proceedings challenged therein, the respondent may [SHALL] file with 10 its answer the record or portions thereof that are material to the questions raised in the 11 application. 12 * Sec. 35. Rule 35.1(f)(2), Alaska Rules of Criminal Procedure, is amended to read: 13 (2) If appointed counsel has filed a certificate under (e)(2)(B) of this 14 rule, and it appears to the court that the applicant is not entitled to relief, the 15 court shall [WHEN A COURT IS SATISFIED, ON THE BASIS OF THE 16 APPLICATION, THE ANSWER OR MOTION, AND THE RECORD, THAT THE 17 APPLICANT IS NOT ENTITLED TO POST-CONVICTION RELIEF AND NO 18 PURPOSE WOULD BE SERVED BY ANY FURTHER PROCEEDINGS, IT MAY] 19 indicate to the parties its intention to permit counsel to withdraw and dismiss the 20 application and its reasons for so doing. The applicant and the prosecuting attorney 21 shall be given an opportunity to reply to the proposed withdrawal and dismissal. If 22 the applicant files a response and the court finds that the application does not 23 present a colorable claim, or if the applicant does not file a response, the court 24 shall permit counsel to withdraw and [IN LIGHT OF THE REPLY, OR ON 25 DEFAULT THEREOF, THE COURT MAY] order the application dismissed. If the 26 court finds that the application presents a colorable claim, the court may [OR] 27 grant leave to file an amended application or direct that the proceedings otherwise 28 continue. [DISPOSITION ON THE PLEADINGS AND RECORD SHALL NOT BE 29 MADE WHEN A MATERIAL ISSUE OF FACT EXISTS.] 30 * Sec. 36. Rule 35.1(g), Alaska Rules of Criminal Procedure, is amended to read: 31 (g) Hearing -- Evidence -- Order. The application shall be heard in, and
01 before any judge of, the court in which the underlying criminal case is filed 02 [CONVICTION TOOK PLACE]. An electronic recording of the proceeding shall be 03 made. All rules and statutes applicable in civil proceedings, including pre-trial and 04 discovery procedures are available to the parties except that Alaska Rule of Civil 05 Procedure 16.1 does not apply to post-conviction relief proceedings. The court 06 may receive proof by affidavits, depositions, oral testimony, or other evidence. Unless 07 otherwise required by statute or constitution, the applicant bears the burden of 08 proving all factual assertions by clear and convincing evidence. The court may 09 order the applicant brought before it for the hearing or allow the applicant to 10 participate telephonically or by video conferencing. If the court finds in favor of 11 the applicant, it shall enter an appropriate order with respect to the conviction or 12 sentence in the former proceedings, and any supplementary orders as to rearraignment, 13 retrial, custody, bail, discharge, correction of sentence, or other matters that may be 14 necessary and proper. The court shall make specific findings of fact, and state 15 expressly its conclusions of law, relating to each issue presented. The order made by 16 the court is a final judgment. 17 * Sec. 37. Alaska Rule of Criminal Procedure 35.1(h) is repealed. 18 * Sec. 38. Notwithstanding any other provision of this Act, a person whose conviction was 19 entered before July 1, 1994, has until July 1, 1996, to file a claim under AS 12.72. 20 * Sec. 39. (a) Section 1 of this Act has the effect of amending 21 (1) Alaska Rule of Civil Procedure 3, by providing that a prisoner may not 22 commence litigation against the state until the prisoner has paid the filing or obtained an 23 exemption from those fees; 24 (2) Alaska Rule of Civil Procedure 16.1, by providing that the automatic 25 disclosures of that rule do not apply to litigation against the state by a prisoner; 26 (3) Alaska Rule of Civil Procedure 65, by restricting the availability of 27 injunctive relief in litigation against the state by a prisoner; 28 (4) Alaska Rules of Appellate Procedure 204 and 403, by altering the 29 procedure for appeals and petitions for review in litigation by the state by prisoners; and 30 (5) Alaska Rule of Appellate Procedure 603, by restricting the availability of 31 stays in appeals by a prisoner to the superior court of disciplinary decisions of the Department
01 of Corrections. 02 (b) In this section, "prisoner" and "litigation against the state" have the meanings 03 given in AS 09.19.100, added by sec. 1 of this Act. 04 * Sec. 40. Sections 1 - 14 and 38 of this Act take effect only if secs. 15 - 37 and 39 of this 05 Act take effect. 06 * Sec. 41. If this Act takes effect, it takes effect July 1, 1995.