Legislature(1995 - 1996)
1995-04-26 House Journal
Full Journal pdf1995-04-26 House Journal Page 1539 HB 38 The following was read the second time: HOUSE BILL NO. 38 "An Act relating to criminal sentencing; relating to the availability for good time credit for offenders convicted of certain first degree murders; relating to mandatory life imprisonment, parole, good time credit, pardon, commutation of sentence, modification or reduction of sentence, reprieve, furlough, and service of sentence at a correctional restitution center for offenders with at least three serious felony convictions; and amending Alaska Rule of Criminal Procedure 35." 1995-04-26 House Journal Page 1540 HB 38 with the: Journal Page STA RPT 4DP 3NR 295 FISCAL NOTE (CORR) 295 JUD RPT CS(JUD) NT 4DP 2NR 836 4 FISCAL NOTES (2-ADM, LAW, COURT) 837 FISCAL NOTE (CORR) 2/10/95 837 FIN RPT CS(JUD) NT 2DP 4NR 2AM 1420 2 FISCAL NOTES (COURT, LAW) 1421 2 ZERO FISCAL NOTES (CORR, DPS) 1421 2 FISCAL NOTES (2-ADM) 3/22/95 1421 Representative Vezey moved and asked unanimous consent that the following committee substitute be adopted in lieu of the original bill: CS FOR HOUSE BILL NO. 38(JUD) "An Act relating to criminal sentencing; relating to the availability for good time credit for offenders convicted of certain first degree murders; relating to definite sentences, parole, good time credit, pardon, commutation of sentence, modification or reduction of sentence, reprieve, furlough, and service of sentence at a correctional restitution center for offenders with at least three serious felony convictions; and amending Alaska Rule of Criminal Procedure 35." There being no objection, it was so ordered. Amendment No. 1 was offered by Representatives Brown and Bunde: Page 7, lines 1 - 3: Delete all material and insert: "(14) "most serious felony" means (A) arson in the first degree, promoting prostitution in the first degree under AS11.66.110(a)(2), or any unclassified or class A felony prescribed under AS11.41; or (B) an attempt, or conspiracy to commit, or criminal solicitation under AS11.31.110 of, an unclassified felony prescribed under AS11.41.;" Representative Brown moved and asked unanimous consent that Amendment No. 1 be adopted. 1995-04-26 House Journal Page 1541 HB 38 Objection was heard. Representative Brown placed a call of the House and lifted the call. The objection was withdrawn. There being no further objection, Amendment No. 1 was adopted. Amendment No. 2 was offered by Representatives Brown and Bunde: Page 1, line 1, following "sentencing;" (title amendment): Insert "relating to good time credit;" Page 7, line 13: Delete "Except as provided in (b) of this section and notwithstanding" Insert "Notwithstanding [EXCEPT AS PROVIDED IN (b) OF THIS SECTION AND NOTWITHSTANDING]" Page 8, following line 12: Insert a new bill section to read: "* Sec. 18. AS 33.20.010(b) is repealed." Renumber the following bill sections accordingly. Representative Brown moved and asked unanimous consent that Amendment No. 2 be adopted. There being no objection, it was so ordered and the new title appears below: CS FOR HOUSE BILL NO. 38(JUD) am "An Act relating to criminal sentencing: relating to good time credit; relating to the availability for good time credit for offenders convicted of certain first degree murders; relating to definite sentences, parole, good time credit, pardon, commutation of sentence, modification or reduction of sentence, reprieve, furlough, and service of sentence at a correctional restitution center for offenders with at least three serious felony convictions; and amending Alaska Rule of Criminal Procedure 35." Amendment Nos. 3, 4, 5 and 6 were taken up following consideration of Amendment No. 7. 1995-04-26 House Journal Page 1542 HB 38 Amendment No. 7 was offered by Representative Brown: Page 3, line 26: Delete "(1)" Page 3, line 26, following "(a)": Insert "or a definite term of imprisonment under (l)" Page 3, line 28, following "mandatory": Insert "or definite" Page 3, line 29, following "AS 33.20.010": Delete ";" Insert "." Page 3, line 30 through page 4, line 3: Delete all material. Page 4, line 8: Delete "40" Insert "30" Page 8, line 18: Delete "the greater of" Page 8, line 18: Delete "or 30 years" Representative Brown moved and asked unanimous consent that Amendment No. 7 be adopted. Representative Bunde objected. Representative Brown placed a call of the House and lifted the call. The question being: "Shall Amendment No. 7 be adopted?" The roll was taken with the following result: 1995-04-26 House Journal Page 1543 HB 38 CSHB 38(JUD) am Second Reading Amendment No. 7 YEAS: 13 NAYS: 25 EXCUSED: 1 ABSENT: 1 Yeas: Brice, Brown, Davies, B.Davis, Elton, Finkelstein, Grussendorf, Kubina, Mackie, MacLean, Navarre, Nicholia, Willis Nays: Austerman, Bunde, G.Davis, Foster, Green, Hanley, Ivan, James, Kelly, Kohring, Kott, Martin, Masek, Moses, Mulder, Ogan, Parnell, Phillips, Porter, Rokeberg, Sanders, Therriault, Toohey, Vezey, Williams Excused: Barnes Absent: Robinson And so, Amendment No. 7 was not adopted. Amendment No. 3 was offered by Representative MacLean: Page 1, lines 1 - 2 (title amendment): Delete "relating to the availability for good time credit for offenders convicted of certain first degree murders;" Page 1, line 3 (title amendment): Delete "good time credit," Page 7, lines 12 - 22: Delete all material. Renumber the following bill sections accordingly. Representative MacLean moved and asked unanimous consent that Amendment No. 3 be adopted. Representative Bunde objected. 1995-04-26 House Journal Page 1544 HB 38 The question being: "Shall Amendment No. 3 be adopted?" The roll was taken with the following result: CSHB 38(JUD) am Second Reading Amendment No. 3 YEAS: 15 NAYS: 24 EXCUSED: 1 ABSENT: 0 Yeas: Brice, Brown, Davies, B.Davis, Elton, Finkelstein, Grussendorf, Kubina, Mackie, MacLean, Moses, Navarre, Nicholia, Robinson, Willis Nays: Austerman, Bunde, G.Davis, Foster, Green, Hanley, Ivan, James, Kelly, Kohring, Kott, Martin, Masek, Mulder, Ogan, Parnell, Phillips, Porter, Rokeberg, Sanders, Therriault, Toohey, Vezey, Williams Excused: Barnes And so, Amendment No. 3 was not adopted. Amendment No. 4 was offered by Representative MacLean: Page 1, lines 1 - 2 (title amendment): Delete "relating to the availability for good time credit for offenders convicted of certain first degree murders;" Page 7, lines 20 - 21: Delete all material. Page 7, line 22: Delete "(2)" Representative MacLean moved and asked unanimous consent that Amendment No. 4 be adopted. Representative Bunde objected. The question being: "Shall Amendment No. 4 be adopted?" The roll was taken with the following result: 1995-04-26 House Journal Page 1545 HB 38 CSHB 38(JUD) am Second Reading Amendment No. 4 YEAS: 15 NAYS: 24 EXCUSED: 1 ABSENT: 0 Yeas: Brice, Brown, Davies, B.Davis, Elton, Finkelstein, Grussendorf, Kubina, MacLean, Moses, Navarre, Nicholia, Robinson, Therriault, Willis Nays: Austerman, Bunde, G.Davis, Foster, Green, Hanley, Ivan, James, Kelly, Kohring, Kott, Mackie, Martin, Masek, Mulder, Ogan, Parnell, Phillips, Porter, Rokeberg, Sanders, Toohey, Vezey, Williams Excused: Barnes And so, Amendment No. 4 was not adopted. Amendment No. 5 was offered by Representative Elton: Page 2, line 3 after "confinement": Insert "and to provide sufficient funding to ensure public safety" Representative Elton moved and asked unanimous consent that Amendment No. 5 be adopted. Representative Bunde objected. The question being: "Shall Amendment No. 5 be adopted?" The roll was taken with the following result: CSHB 38(JUD) am Second Reading Amendment No. 5 YEAS: 14 NAYS: 24 EXCUSED: 1 ABSENT: 1 Yeas: Brice, Brown, Davies, Elton, Finkelstein, Grussendorf, Kubina, Mackie, MacLean, Navarre, Nicholia, Porter, Robinson, Willis 1995-04-26 House Journal Page 1546 HB 38 Nays: Austerman, Bunde, G.Davis, Foster, Green, Hanley, Ivan, James, Kelly, Kohring, Kott, Martin, Masek, Moses, Mulder, Ogan, Parnell, Phillips, Rokeberg, Sanders, Therriault, Toohey, Vezey, Williams Excused: Barnes Absent: B.Davis And so, Amendment No. 5 was not adopted. Amendment No. 6 was offered by Representative Elton: Page 2, line 3, after "confinement": Delete "." Insert "; and" Page 2, following line 3: Insert a new paragraph to read: "(5) it is necessary to expand the capacity of the corrections system to accommodate longer sentences for three-time, most serious offenders." Representative Elton moved and asked unanimous consent that Amendment No. 6 be adopted. Representative Bunde objected. Representative Navarre rose to a point of order regarding debate on the amendment. The Speaker cautioned the member to confine remarks to the amendment. The question being: "Shall Amendment No. 6 be adopted?" The roll was taken with the following result: 1995-04-26 House Journal Page 1547 HB 38 CSHB 38(JUD) am Second Reading Amendment No. 6 YEAS: 14 NAYS: 24 EXCUSED: 1 ABSENT: 1 Yeas: Brice, Brown, Davies, B.Davis, Elton, Finkelstein, Grussendorf, Kubina, Mackie, MacLean, Navarre, Nicholia, Robinson, Willis Nays: Austerman, Bunde, G.Davis, Foster, Green, Hanley, Ivan, James, Kelly, Kohring, Martin, Masek, Moses, Mulder, Ogan, Parnell, Phillips, Porter, Rokeberg, Sanders, Therriault, Toohey, Vezey, Williams Excused: Barnes Absent: Kott And so, Amendment No. 6 was not adopted. Amendment No. 8 was offered by Representative Finkelstein: Page 4, line 5, after "law,": Insert "but subject to adjustment as provided in AS 12.55.165 and 12.55.175," Page 6, following line 30: Insert new bill sections to read: "* Sec. 13. AS12.55.165 is amended to read: Sec. 12.55.165. EXTRAORDINARY CIRCUMSTANCES. (a) If the defendant is subject to sentencing under (1) AS12.55.125(c), (d), (e), or (i) and the court finds by clear and convincing evidence that manifest injustice would result from failure to consider relevant aggravating or mitigating factors not specifically included in AS12.55.155 or from imposition of the presumptive term, whether or not adjusted for aggravating or mitigating factors, the court shall enter findings and conclusions and cause a record of the proceedings to be transmitted to a three- judge panel for sentencing under AS12.55.175; or 1995-04-26 House Journal Page 1548 HB 38 (2) AS12.55.125(l) and the court finds by clear and convincing evidence that manifest injustice would result from imposition of the definite term, the court shall enter findings and conclusions and cause a record of the proceedings to be transmitted to a three-judge panel for sentencing under AS12.55.175. (b) In making a determination under (a)(1) [(a)] of this section, the court may not refer a case to a three-judge panel based on the defendant's potential for rehabilitation if the court finds that a factor in aggravation set out in AS12.55.155(c)(2), (8), (10), (12), (15), (17), (18)(B), (20), (21), or (28) is present. * Sec. 14. AS12.55.175(b) is amended to read: (b) Upon receipt of a record of proceedings under AS12.55.165, the three-judge panel shall consider all pertinent files, records, and transcripts, including the findings and conclusions of the judge who originally heard the matter. The panel may hear oral testimony to supplement the record before it. If the panel finds that manifest injustice would result (1) for a record of proceedings transmitted under AS12.55.165(a)(1), from failure to consider relevant aggravating or mitigating factors not specifically included in AS12.55.155 or from imposition of the presumptive term, whether or not adjusted for aggravating or mitigating factors, or (2) for a record of proceedings transmitted under AS12.55.165(a)(2), from imposition of the definite term, it shall sentence the defendant in accordance with this section. If the panel does not find that manifest injustice would result, it shall remand the case to the sentencing court, with a written statement of its findings and conclusions, for sentencing under AS12.55.125. * Sec. 15. AS12.55.175(c) is amended to read: (c) The three-judge panel may in the interest of justice sentence the defendant, for a proceeding transmitted under (1) AS12.55.165(a)(1), to any definite term of imprisonment up to the maximum term provided for the offense or to any sentence authorized under AS12.55.015; (2) AS12.55.165(a)(2), to any definite term of imprisonment not less than the presumptive or minimum term for the offense under AS12.55.125(a), (b), (c), or (i). * Sec. 16. AS12.55.175(e) is amended to read: (e) If the three-judge panel determines under (b)(1) [(b)] of this section that manifest injustice would result from imposition of 1995-04-26 House Journal Page 1549 HB 38 the presumptive term and the panel also finds that the defendant has an exceptional potential for rehabilitation and that a sentence of less than the presumptive term should be imposed because of the defendant's exceptional potential for rehabilitation, the panel (1) shall sentence the defendant to the presumptive term required under AS12.55.125; (2) shall order the defendant under AS12.55.015 to engage in appropriate programs of rehabilitation; and (3) may provide that the defendant is eligible for discretionary parole under AS33.16.090 during the second half of the sentence imposed under this subsection if the defendant successfully completes all rehabilitation programs ordered under (2) of this subsection." Renumber the following bill sections accordingly. Representative Finkelstein moved and asked unanimous consent that Amendment No. 8 be adopted. Representative Bunde objected. The question being: "Shall Amendment No. 8 be adopted?" The roll was taken with the following result: CSHB 38(JUD) am Second Reading Amendment No. 8 YEAS: 14 NAYS: 23 EXCUSED: 1 ABSENT: 2 Yeas: Brice, Brown, Davies, B.Davis, Elton, Finkelstein, Grussendorf, Kubina, Mackie, MacLean, Navarre, Nicholia, Robinson, Willis Nays: Austerman, Bunde, G.Davis, Foster, Hanley, Ivan, James, Kelly, Kohring, Kott, Martin, Moses, Mulder, Ogan, Parnell, Phillips, Porter, Rokeberg, Sanders, Therriault, Toohey, Vezey, Williams Excused: Barnes Absent: Green, Masek 1995-04-26 House Journal Page 1550 HB 38 And so, Amendment No. 8 was not adopted. Amendment No. 9 was offered by Representative Finkelstein: Page 1, line 6, following "convictions;" (title amendment): Delete "and" Page 1, line 6, following "35" (title amendment): Insert "; and providing for an effective date" Page 2, following line 17: Insert a new bill section to read: "* Sec. 3. AS12.55.025(e) is repealed and reenacted to read: (e) Except as provided in (g) and (h) of this section, if the defendant has been convicted of two or more crimes, sentences of imprisonment shall run consecutively. If the defendant is imprisoned upon a previous judgment of conviction for a crime, the judgment shall provide that the imprisonment commences at the expiration of the term imposed by the previous judgment. Nothing in AS12.55.125(a) limits the court's ability to impose consecutive sentences." Renumber the following bill sections accordingly. Page 3, following line 3: Insert a new bill section to read: "* Sec. 5. AS12.55.125(c) is repealed and reenacted to read: (c) A defendant convicted of a class A felony may be sentenced to a definite term of imprisonment of not more than 20 years, and shall be sentenced to the following presumptive terms, subject to adjustment as provided in AS12.55.155 - 12.55.175: (1) if the offense is a first felony conviction and does not involve circumstances described in (2) of this subsection, five years; (2) if the offense is a first felony conviction, other than for manslaughter, and the defendant possessed a firearm, used a dangerous instrument, or caused serious physical injury during the commission of the offense, or knowingly directed the conduct constituting the offense at a uniformed or otherwise clearly identified peace officer, fire fighter, correctional officer, emergency medical technician, paramedic, ambulance attendant, or 1995-04-26 House Journal Page 1551 HB 38 other emergency responder who was engaged in the performance of official duties at the time of the offense, seven years; (3) if the offense is a second felony conviction, 10 years; (4) if the offense is a third felony conviction, 15 years." Renumber the following bill sections accordingly. Page 3, following line 10: Insert a new bill section to read: "* Sec. 7. AS12.55.125(f) is repealed and reenacted to read: (f) If a defendant is sentenced under (a) or (b) of this section, (1) imprisonment for the prescribed minimum or mandatory term may not be suspended under AS12.55.080; (2) imposition of sentence may not be suspended under AS12.55.085; (3) imprisonment for the prescribed minimum or mandatory term may not be reduced." Renumber the following bill sections accordingly. Page 3, following line 23: Insert a new bill section to read: "* Sec. 9. AS12.55.125(i) is repealed and reenacted to read: (i) A defendant convicted of sexual assault in the first degree or sexual abuse of a minor in the first degree may be sentenced to a definite term of imprisonment of not more than 30 years, and shall be sentenced to the following presumptive terms, subject to adjustment as provided in AS12.55.155 - 12.55.175: (1) if the offense is a first felony conviction and does not involve circumstances described in (2) of this subsection, eight years; (2) if the offense is a first felony conviction, and the defendant possessed a firearm, used a dangerous instrument, or caused serious physical injury during the commission of the offense, 10 years; (3) if the offense is a second felony conviction, 15 years; (4) if the offense is a third felony conviction, 25 years." Renumber the following bill sections accordingly. 1995-04-26 House Journal Page 1552 HB 38 Page 4, following line 3: Insert a new bill section to read: "* Sec. 11. AS12.55.125(j) is repealed and reenacted to read: (j) A defendant sentenced to a mandatory term of imprisonment of 99 years under (a) of this section may apply for a modification or reduction of sentence under the Alaska Rules of Criminal Procedure after serving one-half of the mandatory term without consideration of good time earned under AS33.20.010." Renumber the following bill sections accordingly. Page 6, following line 22: Insert a new bill section to read: "* Sec. 16. AS12.55.145(d) is repealed and reenacted to read: (d) Matters alleged in a notice of denial shall be heard by the court sitting without a jury. If the defendant introduces substantial evidence that the defendant is not the person named in a prior judgment of conviction, that the judgment is not authentic, that the conviction did not occur within the period specified in (a)(1)(A) of this section, or that a conviction should not be considered a prior felony conviction under (a)(1)(B) of this section, then the burden is on the state to prove the contrary beyond a reasonable doubt. The burden of proof that two or more convictions should be considered a single conviction under (a)(1)(C) of this section is on the defendant by clear and convincing evidence." Renumber the following bill sections accordingly. Page 7, following line 11: Insert a new bill section to read: "* Sec. 21. AS33.16.090(b) is repealed and reenacted to read: (b) Except as provided in (e) of this section, a prisoner is not eligible for discretionary parole during the term of a presumptive sentence; however, a prisoner is eligible for discretionary parole during a term of sentence enhancement imposed under AS12.55.155(a) or during the term of a consecutive or partially consecutive presumptive sentence imposed under AS12.55.025(e) or (g). A prisoner sentenced to a mandatory 99-year term under AS12.55.125(a) or a definite term under former AS12.55.125(l) is not eligible for discretionary parole during the entire term." 1995-04-26 House Journal Page 1553 HB 38 Renumber the following bill sections accordingly. Page 7, line 21: Delete "this Act" Insert "this bill section" Page 7, following line 22: Insert a new bill section to read: "* Sec. 23. AS33.20.010(a) is repealed and reenacted to read: (a) Except as provided in (b) of this section and notwithstanding AS12.55.125(f)(3) and 12.55.125(g)(3), a prisoner convicted of an offense against the state or a political subdivision of the state and sentenced to a term of imprisonment that exceeds three days is entitled to a deduction of one-third of the term of imprisonment rounded off to the nearest day if the prisoner follows the rules of the correctional facility in which the prisoner is confined. A prisoner is not eligible for a good time deduction if the prisoner has been sentenced to a (1) mandatory 99-year term of imprisonment under AS12.55.125(a) after the effective date of sec. 22 of this Act; or (2) definite term under former AS12.55.125(l)." Renumber the following bill sections accordingly. Page 7, following line 28: Insert a new bill section to read: "* Sec. 25. AS33.30.101(c) is repealed and reenacted to read: (c) The regulations adopted under (a) of this section may not provide for the granting of a furlough of any type to a prisoner sentenced to a definite term of imprisonment under former AS12.55.125(l) unless the prisoner is at all times in the direct custody of a correctional officer while the prisoner is away from the correctional facility." Renumber the following bill sections accordingly. Page 8, following line 12: Insert a new bill section to read: "* Sec. 27. AS33.30.161(b) is repealed and reenacted to read: (b) To be eligible to serve time in a correctional restitution center, the prisoner 1995-04-26 House Journal Page 1554 HB 38 (1) must be employable or eligible to work on community service projects approved by the commissioner and agree to secure employment or participate in community service projects and obey the rules of the center; (2) may not be serving a sentence for conviction of an offense (A) involving violence or the use of force; (B) under AS11.41.320, 11.41.330, or AS11.56.740; (3) may not have been convicted of a felony offense, in the state or another jurisdiction, involving violence or the use of force; (4) may not have been convicted of an offense under AS11.41.410 - 11.41.470 or an offense in the state or another jurisdiction having elements substantially identical to an offense under AS11.41.410 - 11.41.470; and (5) may not have been sentenced to a definite term of imprisonment under former AS12.55.125(l)." Renumber the following bill sections accordingly. Page 8, line 14: Delete "this Act" Insert "this bill section" Page 8, line 15: Delete "sec. 6" Insert "secs. 10 and 11" Page 8, following line 18: Insert new bill sections to read: "* Sec. 30. AS12.55.125(l), 12.55.145(a)(2), 12.55.145(c)(1)(C)(ii), 12.55.145(c)(1)(E), and 12.55.185(14) are repealed. * Sec. 31. Sections 3, 5, 7, 9, 11, 16, 21, 23, 25, 27, and 30 of this Act take effect July1, 2000." Representative Finkelstein moved and asked unanimous consent that Amendment No. 9 be adopted. Representative Bunde objected. 1995-04-26 House Journal Page 1555 HB 38 The question being: "Shall Amendment No. 9 be adopted?" The roll was taken with the following result: CSHB 38(JUD) am Second Reading Amendment No. 9 YEAS: 13 NAYS: 24 EXCUSED: 1 ABSENT: 2 Yeas: Brice, Brown, Davies, B.Davis, Elton, Finkelstein, Grussendorf, Kubina, Mackie, Navarre, Nicholia, Robinson, Willis Nays: Austerman, Bunde, G.Davis, Foster, Green, Hanley, Ivan, James, Kelly, Kohring, Kott, Martin, Moses, Mulder, Ogan, Parnell, Phillips, Porter, Rokeberg, Sanders, Therriault, Toohey, Vezey, Williams Excused: Barnes Absent: MacLean, Masek And so, Amendment No. 9 was not adopted. Representative Vezey moved and asked unanimous consent that CSHB38(JUD) am be considered engrossed, advanced to third reading and placed on final passage. Objection was heard. The Speaker stated that CSHB38(JUD)am will be in third reading on the April 27, 1995, calendar.