SCS CSHB 245(HES) AM S: "An Act relating to assault in the fourth degree; relating to the definition of 'crime involving domestic violence' in AS 11; relating to unlawful contact with a victim or witness; relating to rehabilitation programs for perpetrators of domestic violence; amending Rule 5(b), Alaska Rules of Criminal Procedure and Rule 404(b), Alaska Rules of Evidence; and providing for an effective date."
00SENATE CS FOR CS FOR HOUSE BILL NO. 245(HES) am S 01 "An Act relating to assault in the fourth degree; relating to the definition of 02 'crime involving domestic violence' in AS 11; relating to unlawful contact with a 03 victim or witness; relating to rehabilitation programs for perpetrators of domestic 04 violence; amending Rule 5(b), Alaska Rules of Criminal Procedure and Rule 05 404(b), Alaska Rules of Evidence; and providing for an effective date." 06 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 07 * Section 1. AS 11.56 is amended by adding a new section to read: 08 Sec. 11.56.750. Unlawful contact in the first degree. (a) A person commits 09 the crime of unlawful contact in the first degree if the person 10 (1) has been ordered not to contact a victim or witness of the offense 11 as 12 (A) part of a sentence imposed under AS 12.55.015; or 13 (B) as a condition of 14 (i) release under AS 12.30;
01 (ii) probation under AS 12.55.101; or 02 (iii) parole under AS 33.16.150; and 03 (2) either directly or indirectly, knowingly contacts or attempts to 04 contact the victim or witness in violation of the order. 05 (b) Unlawful contact in the first degree is a class A misdemeanor. 06 * Sec. 2. AS 11.56 is amended by adding a new section to read: 07 Sec. 11.56.755. Unlawful contact in the second degree. (a) A person 08 commits the crime of unlawful contact in the second degree if 09 (1) the person is arrested for a crime against a person under AS 11.41 10 or a crime involving domestic violence; and 11 (2) before the person's initial appearance before a judge or magistrate 12 or before dismissal of the charge for which the person was arrested, whichever occurs 13 first, the person initiates communication or attempts to initiate communication with the 14 alleged victim of the crime that was the basis for the person's arrest. 15 (b) Unlawful contact in the second degree is 16 (1) a class B misdemeanor if the person was arrested for an offense that 17 is a class A misdemeanor or a felony offense; 18 (2) a violation if the person was arrested for an offense that is a class 19 B misdemeanor. 20 * Sec. 3. AS 11.56 is amended by adding a new section to read: 21 Sec. 11.56.756. Definitions. In AS 11.56.750 and 11.56.755, 22 (1) "victim" has the meaning given in AS 12.55.185; and 23 (2) "witness" has the meaning given in AS 12.61.900. 24 * Sec. 4. AS 11.81.900(b) is amended by adding a new paragraph to read: 25 (60) "crime involving domestic violence" has the meaning given in 26 AS 18.66.990. 27 * Sec. 5. AS 12.25.150(b) is amended to read: 28 (b) Immediately after an arrest, a prisoner shall have the right to telephone or 29 otherwise communicate with the prisoner's attorney and any relative or friend, and any 30 attorney at law entitled to practice in the courts of Alaska shall, at the request of the 31 prisoner or any relative or friend [FRIENDS] of the prisoner, have the right to
01 immediately visit the person arrested. This subsection does not provide a prisoner 02 with the right to initiate communication or attempt to initiate communication 03 under circumstances proscribed under AS 11.56.755. 04 * Sec. 6. AS 12.55.015(a) is amended to read: 05 Sec. 12.55.015. Authorized sentences; forfeiture. (a) Except as limited by 06 AS 12.55.125 - 12.55.175, the court, in imposing sentence on a defendant convicted 07 of an offense, may singly or in combination 08 (1) impose a 09 (A) fine when authorized by law and as provided in 10 AS 12.55.035; or 11 (B) day fine when authorized by law and as provided in 12 AS 12.55.036 [,] if the court does not impose a term of periodic or continuous 13 imprisonment or place the defendant on probation; 14 (2) order the defendant to be placed on probation under conditions 15 specified by the court that may include provision for active supervision; 16 (3) impose a definite term of periodic imprisonment; 17 (4) impose a definite term of continuous imprisonment; 18 (5) order the defendant to make restitution under AS 12.55.045; 19 (6) order the defendant to carry out a continuous or periodic program 20 of community work under AS 12.55.055; 21 (7) suspend execution of all or a portion of the sentence imposed under 22 AS 12.55.080; 23 (8) suspend imposition of sentence under AS 12.55.085; 24 (9) order the forfeiture to the commissioner of public safety or a 25 municipal law enforcement agency of a deadly weapon that was in the actual 26 possession of or used by the defendant during the commission of an offense described 27 in AS 11.41, AS 11.46, AS 11.56, or AS 11.61; 28 (10) order the defendant, while incarcerated, to participate in or comply 29 with the treatment plan of a rehabilitation program that is related to the defendant's 30 offense or to the defendant's rehabilitation if the program is made available to the 31 defendant by the Department of Corrections;
01 (11) order the forfeiture to the state of a motor vehicle, weapon, 02 electronic communication device, or money or other valuables, used in or obtained 03 through an offense that was committed for the benefit of, at the direction of, or in 04 association with a criminal street gang ; 05 (12) order the defendant to have no contact, either directly or 06 indirectly, with a victim or witness of the offense until the defendant is 07 unconditionally discharged . 08 * Sec. 7. AS 12.55.101(a) is amended to read: 09 (a) Before granting probation to a person convicted of a crime involving 10 domestic violence, the court shall consider the safety and protection of the victim and 11 any member of the victim's family. If a person convicted of a crime involving 12 domestic violence is placed on probation, the court may order the conditions 13 authorized in AS 12.55.100 and AS 18.66.100(c)(1) - (7) and (11), and may 14 (1) require the defendant to participate in and complete to the 15 satisfaction of the court one or more programs for the rehabilitation of perpetrators of 16 domestic violence that meet the standards set by, and that are approved by , the 17 Department of Corrections under AS 44.28.020(b) [,] if the program is available in the 18 community where the defendant resides; the court may not order a defendant to 19 participate in or complete a program for the rehabilitation of perpetrators of 20 domestic violence that does not meet the standards set, and that is not approved, 21 by the Department of Corrections under AS 44.28.020(b); 22 (2) require the defendant to refrain from the consumption of alcohol; 23 and 24 (3) impose any other condition necessary to protect the victim and any 25 members of the victim's family, or to rehabilitate the defendant. 26 * Sec. 8. AS 12.55.135(c) is amended to read: 27 (c) A defendant convicted of assault in the fourth degree that is a crime 28 involving domestic violence committed in violation of the provisions of an order 29 issued or filed under AS 12.30.027 or AS 18.66.100 - 18.66.180 and not subject to 30 sentencing under (g) of this section [OR ISSUED UNDER FORMER AS 25.35.010 31 OR 25.35.020] shall be sentenced to a minimum term of imprisonment of 20 days.
01 * Sec. 9. AS 12.55.135 is amended by adding new subsections to read: 02 (g) A defendant convicted of assault in the fourth degree that is a crime 03 involving domestic violence shall be sentenced to a minimum term of imprisonment 04 of 05 (1) 30 days if the defendant has been previously convicted of a crime 06 against a person or a crime involving domestic violence; 07 (2) 60 days if the defendant has been previously convicted two or more 08 times of a crime against a person or a crime involving domestic violence, or a 09 combination of those crimes. 10 (h) If a defendant is sentenced under (g) of this section, 11 (1) execution of sentence may not be suspended and probation or parole 12 may not be granted until the minimum term of imprisonment has been served; 13 (2) imposition of sentence may not be suspended; 14 (3) the minimum term of imprisonment may not otherwise be reduced. 15 (i) In this section, 16 (1) "crime against a person" means a crime under AS 11.41, or a crime 17 in this or another jurisdiction having elements similar to those of a crime under 18 AS 11.41; 19 (2) "crime involving domestic violence" has the meaning given in 20 AS 18.66.990. 21 * Sec. 10. AS 12.55.145(a) is amended to read: 22 (a) For purposes of considering prior convictions in imposing sentence under 23 (1) AS 12.55.125(c), (d)(1), (d)(2), (e)(1), (e)(2), or (i), 24 (A) a prior conviction may not be considered if a period of 10 25 or more years has elapsed between the date of the defendant's unconditional 26 discharge on the immediately preceding offense and commission of the present 27 offense unless the prior conviction was for an unclassified or class A felony; 28 (B) a conviction in this or another jurisdiction of an offense 29 having elements similar to those of a felony defined as such under Alaska law 30 at the time the offense was committed is considered a prior felony conviction; 31 (C) two or more convictions arising out of a single, continuous
01 criminal episode during which there was no substantial change in the nature of 02 the criminal objective are considered a single conviction unless the defendant 03 was sentenced to consecutive sentences for the crimes; offenses committed 04 while attempting to escape or avoid detection or apprehension after the 05 commission of another offense are not part of the same criminal episode or 06 objective; 07 (2) AS 12.55.125(l), 08 (A) a conviction in this or another jurisdiction of an offense 09 having elements similar to those of a most serious felony is considered a prior 10 most serious felony conviction; 11 (B) commission of and conviction for offenses relied on as prior 12 most serious felony offenses must occur in the following order: conviction for 13 the first offense must occur before commission of the second offense, and 14 conviction for the second offense must occur before commission of the offense 15 for which the defendant is being sentenced ; 16 (3) AS 12.55.135(g), 17 (A) a prior conviction may not be considered if a period of 18 five or more years has elapsed between the date of the defendant's 19 unconditional discharge on the immediately preceding offense and 20 commission of the present offense unless the prior conviction was for an 21 unclassified or class A felony; 22 (B) a conviction in this or another jurisdiction of an offense 23 having elements similar to those of a crime against a person or a crime 24 involving domestic violence is considered a prior conviction; 25 (C) two or more convictions arising out of a single, 26 continuous criminal episode during which there was no substantial change 27 in the nature of the criminal objective are considered a single conviction 28 unless the defendant was sentenced to consecutive sentences for the crimes; 29 offenses committed while attempting to escape or avoid detection or 30 apprehension after the commission of another offense are not part of the 31 same criminal episode or objective .
01 * Sec. 11. AS 12.55.145(c) is amended to read: 02 (c) The defendant shall file with the court and serve on the prosecuting 03 attorney notice of denial, consisting of a concise statement of the grounds relied upon 04 and that may be supported by affidavit or other documentary evidence, no later than 05 10 days before the date set for the imposition of sentence if the defendant 06 (1) denies 07 (A) the authenticity of a prior judgment of conviction; 08 (B) that the defendant is the person named in the judgment; 09 (C) that the elements of a prior offense committed in this or 10 another jurisdiction are similar to those of a 11 (i) felony defined as such under Alaska law; 12 (ii) most serious felony, defined as such under Alaska 13 law; 14 (iii) crime against a person or a crime involving 15 domestic violence; 16 (D) that a prior conviction occurred within the period specified 17 in (a)(1)(A) or (3)(A) of this section; or 18 (E) that a previous conviction occurred in the order required 19 under (a)(2)(B) of this section; or 20 (2) alleges that two or more purportedly separate prior convictions 21 should be considered a single conviction under (a)(1)(C) or (3)(C) of this section. 22 * Sec. 12. AS 12.55.145(d) is amended to read: 23 (d) Matters alleged in a notice of denial shall be heard by the court sitting 24 without a jury. If the defendant introduces substantial evidence that the defendant is 25 not the person named in a prior judgment of conviction, that the judgment is not 26 authentic, that the conviction did not occur within the period specified in (a)(1)(A) or 27 (3)(A) of this section, that a conviction should not be considered a prior felony 28 conviction under (a)(1)(B) of this section , [OR] a prior most serious felony conviction 29 under (a)(2)(A) of this section, or a prior crime against a person or a crime 30 involving domestic violence conviction under (a)(3)(B) of this section, or that a 31 previous conviction did not occur in the order required under (a)(2)(B) of this section,
01 then the burden is on the state to prove the contrary beyond a reasonable doubt. The 02 burden of proof that two or more convictions should be considered a single conviction 03 under (a)(1)(C) or (3)(C) of this section is on the defendant by clear and convincing 04 evidence. 05 * Sec. 13. AS 12.55.145 is amended by adding a new subsection to read: 06 (g) In this section, 07 (1) "crime against a person" has the meaning given in AS 12.55.135(i); 08 (2) "crime involving domestic violence" has the meaning given in 09 AS 18.66.990. 10 * Sec. 14. AS 18.66.100(c)(15) is amended to read: 11 (15) order the respondent, at the respondent's expense, to participate in 12 (A) a program for the rehabilitation of perpetrators of domestic violence that meets the 13 standards set by, and that is approved by , the Department of Corrections under 14 AS 44.28.020(b), or (B) treatment for the abuse of alcohol or controlled substances, 15 or both; a protective order under this section may not require a respondent to 16 participate in a program for the rehabilitation of perpetrators of domestic 17 violence unless the program meets the standards set by, and that is approved by, 18 the Department of Corrections under AS 44.28.020(b); 19 * Sec. 15. AS 33.16.150(f) is amended to read: 20 (f) In addition to other conditions of parole imposed under this section, the 21 board may impose as a condition of special medical, discretionary, or mandatory parole 22 for a prisoner serving a term for a crime involving domestic violence (1) any of the 23 terms of protective orders under AS 18.66.100(c)(1) - (7); (2) a requirement that, at 24 the prisoner's expense, the prisoner participate in and complete, to the satisfaction of 25 the board, a program for the rehabilitation of perpetrators of domestic violence that 26 meets the standards set by, and that is approved by , the department under 27 AS 44.28.020(b); and (3) any other condition necessary to rehabilitate the prisoner. 28 The board shall establish procedures for the exchange of information concerning the 29 parolee with the victim and for responding to reports of nonattendance or 30 noncompliance by the parolee with conditions imposed under this subsection. The 31 board may not under this subsection require a prisoner to participate in and
01 complete a program for the rehabilitation of perpetrators of domestic violence 02 unless the program meets the standards set by, and is approved by, the 03 department under AS 44.28.020(b). 04 * Sec. 16. AS 44.28.020(b) is amended to read: 05 (b) The department shall, with the approval of the Council on Domestic 06 Violence and Sexual Assault, adopt standards, by regulation, for rehabilitation 07 programs for perpetrators of domestic violence as defined in AS 18.66.990 and for the 08 approval of those programs . For purposes of AS 12.55.101, AS 18.66.100(c), and 09 AS 33.16.150(f), the department shall approve a program if the department 10 determines that the [DETERMINE WHETHER A] program meets the standards. 11 Upon application of a program, the department may waive one or more standards 12 and approve the program if the department determines 13 (1) there is good cause for the waiver; 14 (2) the safety of victims and children is not compromised by the 15 waiver; 16 (3) an acceptable alternative is provided by the program. 17 * Sec. 17. Rule 5(b), Alaska Rules of Criminal Procedure, is amended to read: 18 (b) Rights of Prisoner to Communicate With Attorney or Other Person. 19 Immediately after arrest, the prisoner shall have the right forthwith to telephone or 20 otherwise to communicate with both an attorney and any relative or friend. Any 21 attorney at law entitled to practice in the courts of Alaska, at the request of either the 22 prisoner or any relative or friend of the prisoner, shall have the right forthwith to visit 23 the prisoner in private. This subsection does not provide a prisoner with the right 24 to initiate communication or attempt to initiate communication under 25 circumstances proscribed under AS 11.56.755. 26 * Sec. 18. Rule 404(b)(3), Alaska Rules of Evidence, is amended to read: 27 (3) In a prosecution for a crime of sexual assault in any degree , 28 evidence of other sexual assaults or attempted sexual assaults by the defendant 29 against the same or another person is admissible if the defendant relies on a 30 defense of consent. In a prosecution for a crime of [OR] attempt to commit sexual 31 assault in any degree, evidence of other sexual assaults or attempted sexual assaults
01 by the defendant against the same or another person is admissible [IF THE 02 DEFENDANT RELIES ON A DEFENSE OF CONSENT]. 03 * Sec. 19. AS 11.56.745(b) is repealed. 04 * Sec. 20. AS 12.25.150(b), as amended by sec. 5 of this Act, amends Rule 5(b), Alaska 05 Rules of Criminal Procedure, by limiting the people with whom a prisoner may communicate 06 immediately after arrest. 07 * Sec. 21. Sections 2, 5, and 17 of this Act take effect only if secs. 17 and 20 of this Act 08 receive the two-thirds majority vote of each house required by art. IV, sec. 15, Constitution 09 of the State of Alaska. 10 * Sec. 22. APPLICABILITY. (a) The changes made by secs. 5, 17, and 20 of this Act 11 apply to persons arrested for offenses occurring before, on, or after the effective date of this 12 Act. 13 (b) Section 18 of this Act applies to a criminal or juvenile proceeding held on or after 14 the effective date of sec. 18 of this Act regardless of whether the criminal offense occurred 15 before, on, or after the effective date of sec. 18 of this Act. 16 (c) References to previous convictions in this Act apply to all convictions occurring 17 before, on, or after the effective date of this Act. 18 * Sec. 23. Sections 7 and 14 - 15 of this Act take effect on the later of (1) January 1, 19 1999, or (2) six months after the effective date of the regulations adopted by the Department 20 of Corrections under AS 44.28.020(b), as amended by sec. 16 of this Act, relating to the 21 approval of rehabilitation programs for perpetrators of domestic violence. The lieutenant 22 governor and the commissioner of corrections shall notify the revisor of statutes when the 23 regulations are filed. 24 * Sec. 24. Except for secs. 7 and 14 - 15, this Act takes effect immediately under 25 AS 01.10.070(c).